JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
16 September 2013 (*)
(Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Duration of the infringement – Rights of the defence – Access to the file – Attributability of unlawful conduct)
In Joined Cases T‑379/10 and T‑381/10,
Keramag Keramische Werke AG, established in Ratingen (Germany),
Koralle Sanitärprodukte GmbH, established in Vlotho (Germany),
Koninklijke Sphinx BV, established in Maastricht (Netherlands),
Allia SAS, established in Avon (France),
Produits Céramique de Touraine SA, established in Selles-sur-Cher (France),
Pozzi Ginori SpA, established in Milan (Italy),
applicants in Case T‑379/10,
Sanitec Europe Oy, established in Helsinki (Finland),
applicant in Case T‑381/10,
represented by J. Killick, Barrister, I. Reynolds, Solicitor, and P. Lindfelt and K. Struckmann, lawyers,
v
European Commission, represented by F. Castillo de la Torre and F. Ronkes Agerbeek, acting as Agents, assisted by B. Kennelly, Barrister,
defendant,
APPLICATIONS for annulment in part of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 – Bathroom Fittings and Fixtures) and, in the alternative, for reduction of the fine imposed on the applicants by that decision,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,
Registrar: J. Weychert, Administrator,
having regard to the written procedure and further to the hearing on 22 May 2012,
gives the following
Judgment
Background to the dispute
1 By Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 – Bathroom Fittings and Fixtures) (‘the contested decision’), the European Commission found there to be an infringement of Article 101(1) TFEU and Article 53 of the Agreement on the European Economic Area (EEA) in the bathroom fittings and fixtures sector. It found that 17 undertakings had participated, over various periods between 16 October 1992 and 9 November 2004, in that infringement, which took the form of anti-competitive agreements or concerted practices spanning Belgium, Germany, France, Italy, the Netherlands and Austria (recitals 2 and 3 to the contested decision and Article 1 thereof).
2 More specifically, the Commission stated in the contested decision that the infringement consisted in, first and principally, the coordination, by those bathroom fittings and fixtures manufacturers, of annual price increases and other pricing elements within the framework of regular meetings of national industry associations; second, the fixing or coordination of prices on the occasion of specific events such as increases in raw material costs, the introduction of the euro and the introduction of road tolls; and, third, the disclosure and exchange of sensitive business information. The Commission also found that price setting in the bathroom fittings and fixtures industry followed an annual cycle. In that context, the manufacturers set price lists, which generally remained in force for a year and formed the basis for commercial relations with wholesalers (recitals 152 to 163 to the contested decision).
3 The products covered by the cartel are bathroom fittings and fixtures belonging to the following three product sub-groups: taps and fittings, shower enclosures and accessories, and ceramics (‘the three product sub-groups’) (recitals 5 and 6 to the contested decision).
4 The applicants in Case T‑379/10, which were among the addressees of the contested decision, produced (i) in the case of Keramag Keramische Werke AG (‘Keramag’), Koninklijke Sphinx BV (‘Sphinx’), Allia SAS, Produits Céramique de Touraine SA (‘PCT’) and Pozzi Ginori SpA, ceramic ware (‘ceramics’) and (ii) in the case of Koralle Sanitärprodukte GmbH (‘Koralle’), shower enclosures. At the material time, the applicants in Case T‑379/10 were all subsidiaries of Sanitec Europe Oy, the applicant in Case T‑381/10, which was also an addressee of the contested decision. In the contested decision the companies Sanitec Europe, Allia and its subsidiaries, Keramag and its subsidiaries, Sphinx and Pozzi Ginori were collectively referred to by the Commission as ‘Sanitec’ (hereinafter ‘the Sanitec group’). Throughout the whole of the time they participated in the infringement alleged against them, the subsidiaries of Sanitec Europe were members of the following national industry associations of bathroom fittings and fixtures manufacturers: in Belgium, the Vitreous China-group, in Germany, the IndustrieForum Sanitär (formerly DSI) (‘IFS’), the Arbeitskreis Baden und Duschen (‘ABD’) and the Fachverband Sanitärkeramische Industrie (‘FSKI’), in France, the Association française des industries de céramique sanitaire (‘AFICS’), in Italy, the cross-product association Michelangelo, in the Netherlands, the Sanitair Fabrikanten Platform (‘SFP’) and the Stichting Verwarming en Sanitair (‘SVS’), and, in Austria, the Arbeitskreis Sanitärindustrie (‘ASI’).
5 On 15 July 2004, Masco Corp. Inc. and its subsidiaries, including Hansgrohe AG, which manufactures taps and fittings, and Hüppe GmbH, which manufactures shower enclosures, informed the Commission of the existence of a cartel in the bathroom fittings and fixtures sector and submitted an application for immunity from fines, or, in the alternative, a reduction of fines, under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’). On 2 March 2005, the Commission granted Masco conditional immunity from fines pursuant to points 8(a) and 15 of the 2002 Leniency Notice (recitals 126 to 128 to the contested decision).
6 On 9 and 10 November 2004, the Commission, pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), conducted unannounced inspections on the premises of various companies and national industry associations operating in the bathroom fittings and fixtures sector (recital 129 to the contested decision).
7 On 15 and 19 November 2004 respectively, Grohe Beteiligungs GmbH and its subsidiaries and American Standard Inc. (‘Ideal Standard’) and its subsidiaries each applied for immunity from fines under the 2002 Leniency Notice or, in the alternative, for a reduction in fines (recitals 131 and 132 to the contested decision).
8 Between 15 November 2005 and 16 May 2006, the Commission, pursuant to Article 18 of Regulation No 1/2003, sent requests for information to various companies and associations operating in the bathroom fittings and fixtures sector, including some of the applicants in Case T‑379/10 (recital 133 to the contested decision).
9 On 17, 19 and 20 January 2006, Roca SARL, Hansa Metallwerke AG (‘Hansa’) and its subsidiaries and Aloys F. Dornbracht GmbH & Co KG Armaturenfabrik (‘Dornbracht’) each applied for immunity from fines under the 2002 Leniency Notice or, in the alternative, for a reduction in fines (recitals 135 to 138 of the contested decision).
10 On 26 March 2007, the Commission adopted a statement of objections, which was notified to the applicants (recital 139 to the contested decision).
11 A hearing took place from 12 to 14 November 2007, in which the applicant in Case T‑381/10 participated (recital 143 to the contested decision).
12 On 9 July 2009, the Commission sent certain companies, including the applicants in Case T‑379/10 and the applicant in Case T‑381/10, a letter of facts, drawing their attention to certain evidence on which the Commission was minded to rely when adopting a final decision (recitals 147 and 148 to the contested decision).
13 Between 19 June 2009 and 8 March 2010, the Commission, pursuant to Article 18 of Regulation No1/2003, sent further requests for information to several companies, including some of the applicants in Case T‑379/10 and the applicant in Case T‑381/10 (recitals 149 to 151 to the contested decision).
14 On 23 June 2010, the Commission adopted the contested decision.
15 In the contested decision, in the first place, the Commission found that the practices described in paragraph 2 above formed part of an overall plan to restrict competition between the addressees of that decision and had the characteristics of a single and continuous infringement, which covered the three product sub-groups and extended to Belgium, Germany, France, Italy, the Netherlands and Austria (‘the infringement found’) (recitals 778 and 793 to the contested decision). In that regard, it highlighted, in particular, the fact that those practices had followed a recurring pattern which was consistent in each of the six Member States covered by the Commission’s investigation (recitals 778 and 793 to the contested decision). The Commission also pointed to the existence of national industry associations concerning all three product sub-groups, which it termed ‘umbrella associations’, national industry associations with members active in at least two of those three product sub-groups, which it termed ‘cross-product associations’, as well as product-specific associations with members active in only one product sub-group (recitals 796 and 798 to the contested decision). Lastly, it found that a central group of undertakings participated in the cartel in various Member States and in cross-product associations and umbrella associations (recitals 796 and 797 to the contested decision).
16 As regards the participation of the applicants in Case T‑379/10 and the applicant in Case T‑381/10 (hereinafter ‘the applicants’ or ‘the Sanitec group’) in the infringement found, the Commission held that, since Sanitec Europe had participated, through its national subsidiaries, throughout the infringement period alleged against them, in cartel meetings of the umbrella associations IFS, ASI, SFP and SVS and in meetings of the cross-product association Michelangelo – associations whose other members were active in several Member States concerned by the contested decision – the Sanitec group belonged to a central group of undertakings and was aware (or ought reasonably to have been aware) that the infringement found concerned at least the three product sub-groups and had an extensive geographic scope as it covered the territory of six Member States (recitals 797, 852 and 853 to the contested decision).
17 In the second place, for the purposes of setting the fines imposed on each undertaking, the Commission took as its basis the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’) (recital 1184 to the contested decision).
18 The Commission first determined the basic amount of the fine. The Commission explained in the contested decision that this calculation was based, for each undertaking, on its sales by Member State, multiplied by the number of years of participation in the infringement found in the Member State in question for the relevant product sub-group, so that account was taken of the fact that certain undertakings were active only in certain Member States or in only one of the three product sub-groups (recital 1197 to the contested decision).
19 After giving that explanation, the Commission set at 15% the rate connected with the gravity of the infringement found, as referred to in points 20 to 23 of the 2006 Guidelines. In that regard, it took account of four criteria for assessing the infringement: its nature, combined market shares, geographic scope and implementation (recitals 1210 to 1220 to the contested decision).
20 In addition, the Commission, under point 24 of the 2006 Guidelines, set the multiplier to be applied, to take account of the duration of the infringement, to the basic amount determined for the Sanitec group, at 4.33 for Keramag and Germany, corresponding to 4 years and 4 months’ participation in the infringement, at 10 for Keramag and Austria, corresponding to 10 years’ participation in the infringement, at 3 for Keramag and Belgium, corresponding to 3 years’ participation in the infringement, at 8.75 for Koralle, corresponding to 8 years and 10 months’ participation in the infringement, at 3 for Sphinx and Belgium, corresponding to 3 years’ participation in the infringement, at 0.66 for Allia and France, corresponding to 8 months’ participation in the infringement, at 0.66 for PCT and France, corresponding to 8 months’ participation in the infringement and at 5.33 for Pozzi-Ginori, corresponding to 5 years and 4 months’ participation in the infringement (recital 1223 to the contested decision).
21 Finally, the Commission, on the basis of point 25 of the 2006 Guidelines, decided, in order to deter the undertakings at issue from participating in horizontal price‑fixing agreements such as the agreements with which the contested decision was concerned and in view of the four criteria mentioned in paragraph 19 above, to increase the basic amount of the fine by an additional amount set at 15% (recitals 1224 and 1225 to the contested decision).
22 This resulted in basic amounts of EUR 59 770 000 for Keramag (of which EUR 56 000 000 was for Germany, EUR 1 900 000 was for Austria and EUR 1 870 000 was for Belgium), EUR 20 000 000 for Koralle (of which Sanitec Europe was deemed jointly and severally liable for EUR 12 000 000), EUR 3 200 000 for Sphinx, EUR 10 500 000 for Allia, EUR 5 800 000 for PCT and EUR 33 000 000 for Pozzi-Ginori (recital 1226 to the contested decision).
23 The Commission next considered whether there were any aggravating or mitigating circumstances capable of justifying adjustments to the basic amounts. The Commission did not find that any aggravating or mitigating circumstances applied in the case of the applicants (recitals 1227 to 1260 to the contested decision).
24 The Commission then applied the ceiling of 10% of turnover under Article 23(2) of Regulation No 1/2003 (‘the 10% ceiling’). Once the 10% ceiling had been applied, the fine imposed on the Sanitec group stood at EUR 57 690 000 (recitals 1261 and 1264 to the contested decision).
25 In view of the foregoing, the operative part of the contested decision was worded as follows:
‘Article 1
The following undertakings have infringed Article 101 [TFEU] and – from 1 January 1994 – Article 53 of the EEA Agreement by participating, for the periods indicated, in a continuing agreement or concerted practice in the bathroom fittings and fixtures sector covering the territory of Germany, Austria, Italy, France, Belgium and the Netherlands:
…
6. [Sanitec Europe] from 12 October 1994 to 9 November 2004; [Allia] from 25 February 2004 to 9 November 2004; [PCT] from 25 February 2004 to 9 November 2004; [Keramag] from 12 October 1994 to 9 November 2004; [Sphinx] from 28 September 1994 to 31 December 1999; [Koralle] from 24 January 1996 to 9 November 2004, and [Pozzi Ginori] from 14 May 1996 to 14 September 2001.
…
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
…
7. | (a) | EUR 9 873 060 | On [Sanitec Europe] |
| | (b) | EUR 26 068 884 | Jointly and severally on [Keramag] and [Sanitec Europe] |
| | (c) | EUR 1 395 690 | Jointly and severally on [Sphinx] and [Sanitec Europe] |
| | (d) | EUR 4 579 610 | Jointly and severally on [Allia] and [Sanitec Europe] |
| | (e) | EUR 2 529 689 | Jointly and severally on [PCT], [Allia] and [Sanitec Europe] |
| | (f) | EUR 4 520 000 | Jointly and severally on [Pozzi Ginori] and [Sanitec Europe] |
| | (g) | EUR 5 233 840 | Jointly and severally on [Koralle] and [Sanitec Europe] |
| | (h) | EUR 3 489 227 | On [Koralle] |
…
Article 3
The undertakings listed in Article 1 shall immediately bring to an end the infringement referred to in that Article in so far as they have not already done so.
…’
26 Article 4 of the contested decision lists the addressees, among which the applicants are included.
Procedure and forms of order sought
27 By applications lodged at the Court Registry on 8 September 2010, the applicants brought the actions in Cases T‑379/10 and T‑381/10.
28 By order of 16 December 2010, the President of the Fourth Chamber of the Court ordered that the cases be joined for the purposes of the written procedure.
29 By order of the President of the Fourth Chamber of the Court of 23 March 2012, Cases T‑379/10 and T‑381/10 were joined for the purposes of the oral procedure and the judgment.
30 On hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, put questions in writing to the parties. The applicants and the Commission replied to those questions within the prescribed period, by letters of 12 April and 19 April 2012 respectively.
31 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 22 May 2012.
32 The applicants claim that the Court should:
– annul the contested decision in whole or in part;
– rule that they are not responsible for the anti-competitive activities in the taps and fittings sector and annul the contested decision in that respect;
– in the alternative, reduce the amount of the fines imposed upon them;
– order the Commission to pay the costs;
– make such other order as may be appropriate in the circumstances of the case.
33 The Commission contends that the Court should:
– dismiss the actions;
– order the applicants to pay the costs.
Law
34 As a preliminary point, it should be recalled that the judicial review carried out by the Courts of the European Union of decisions adopted by the Commission to punish infringements of competition law is based on the review of legality, provided for in Article 263 TFEU, which is supplemented, where an application for such review is made to them, by the unlimited jurisdiction conferred upon those Courts by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU (see, to that effect, Case C‑386/10 P Chalkor v Commission [2011] ECR I‑0000, paragraphs 53, 63 and 64). That jurisdiction enables the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, depending on the circumstances, to cancel, reduce or increase the fine or penalty payment imposed (see Case C‑272/09 P KME and Others v Commission [2011] ECR I‑0000, paragraph 103 and the case-law cited; see, to that effect, Case T‑11/06 Romana Tabacchi v Commission [2011] ECR II‑6681, paragraph 265).
35 In these proceedings, in the first place, the applicants have, by the first and third heads of claim of their respective actions, made two requests to the Court, (i) that it annul the contested decision in whole or in part and (ii) in the alternative, that it reduce the amount of their fines.
36 In support of their action, the applicants in Case T‑379/10 raise seven pleas in law. The applicant in Case T‑381/10 has raised nine pleas. Since the seven pleas put forward in the first case are, in essence, identical to the first five pleas and the eighth and ninth pleas in the second case, the Court will examine them together, adopting the numbering used in Case T‑381/10. The sixth and seventh pleas relied on in Case T‑381/10 and specific to that case concern, in essence, first, the fact that a fine was imposed directly and individually on Sanitec Europe and, second, the fact that the Commission held Sanitec Europe liable for the acts of its subsidiary Keramag.
37 Next, in the light of that first observation and using the numbering of the pleas raised in Case T‑381/10, the Court notes that the applicants have advanced those pleas without specifying which of the first and third heads of claim they support. The first seven pleas must, however, be held to be raised in support of the claim for annulment inasmuch as they allege that the Commission made a number of errors of law or of fact as a result of which the contested decision is unlawful in a number of respects. More specifically, those first seven pleas allege respectively (i) in essence, that the Commission made errors of assessment which led it to conclude that the applicants’ conduct had an anti-competitive object, (ii) that the applicants cannot be regarded as responsible for an infringement so far as taps and fittings are concerned, (iii) that the Commission made errors of law and of assessment in its analysis of the evidence concerning their participation in the infringements found in France, Germany and Italy, (iv) that the Commission has not established an interest in finding an infringement in the Netherlands, (v) that there was an infringement of the rights of the defence, (vi) that a fine was wrongly imposed directly and individually on Sanitec Europe and (vii) that liability was wrongly attributed to Sanitec Europe for Keramag’s conduct. The eighth and ninth pleas in law must be held to be raised in support of the claim for reduction in the amount of the fines imposed on the applicants and allege respectively, on the one hand, that the Commission’s prosecution was selective and arbitrary and, on the other, that the Commission over-estimated the amount of the fine.
38 In the light of the foregoing considerations, the Court will start by considering, in the review of legality, the claim that the contested decision should be annulled in part, in so far as that claim is based on the first seven pleas in law, and will then go on to consider the claim that it should, in the exercise of its unlimited jurisdiction, alter – by reducing them – the amounts of the fines imposed by the Commission on the applicants, in so far as that claim is based on the eighth and ninth pleas in law.
39 In the second place, as regards the second head of claim, the applicants request that the Court declare that they are not responsible for anti-competitive activities in the taps and fittings sector and that it annul the contested decision in that regard. That second head of claim is directly linked to the second plea in law. As stated, in essence, in paragraph 37 above, the second plea in law alleges that the applicants cannot be held responsible for an infringement relating to taps and fittings. Accordingly, the Court will rule on the second head of claim on conclusion of its examination of the second plea in law.
40 In the third place, as regards the fifth head of claim, by which the applicants request that the Court make such order as may be appropriate in the circumstances of the case, it must be borne in mind that the Court is the sole judge of whether the information available concerning the cases before it needs to be supplemented (Case C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I‑5281, paragraph 19; Case C‑136/02 P Mag Instrument v OHIM [2004] ECR I‑9165, paragraph 76, and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 67).
41 Furthermore, it is settled case-law that, where an applicant does not put forward any plea in law in support of a head of claim, the requirement in Article 44(1)(c) of the Rules of Procedure for a summary of the pleas in law on which the application is based is not fulfilled and the head of claim concerned must be rejected as inadmissible (see, to that effect, Joined Cases T‑339/94 to T‑342/94 Metsä-Serla and Others v Commission [1998] ECR II‑1727, paragraph 62, and Case T‑310/02 Theodorakis v Council [2004] ECR‑SC I‑A‑95 and II‑427, paragraphs 21 and 22).
42 In the present case, the applicants have put forward no plea in law in support of the fifth head of claim. The latter must therefore be rejected as unfounded.
I – Principal head of claim: annulment of the contested decision
43 As their principal head of claim, the applicants request that the Court annul the contested decision in whole or in part.
44 In that regard, it should be recalled at the outset that, according to settled case‑law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure (Case T‑177/04 easyJet v Commission [2006] ECR II‑1931, paragraph 40 and the case-law cited). In order for such an interest to be present, the annulment of the measure must of itself be capable of having legal consequences or, in accordance with a different form of words, the action must be liable, if successful, to procure an advantage for the party who has brought it (see Case T‑310/00 MCI v Commission [2004] ECR II‑3253, paragraph 44 and the case-law cited).
45 In the present case, it must be observed that, as is apparent from Article 4 of the contested decision, the latter was addressed to a number of undertakings, which the Commission found had participated in an infringement of European Union (EU) competition law (Article 1) and on which it imposed fines (Article 2). Thus, only annulment of the decision in so far as it concerns the applicants is liable to procure an advantage for them.
46 Accordingly, the principal head of claim must be rejected as inadmissible in so far as it seeks annulment of the contested decision in whole.
A – First plea in law: the Commission made errors of assessment which led it to conclude that the conduct alleged against the applicants had an anti-competitive object
47 The first plea in law, which alleges that the Commission made a number of errors of law which led it to conclude that the conduct concerned had an anti-competitive object, is divided into two parts which maintain, in essence, (i) that meetings between non-competitors cannot be presumed to have an anti-competitive object and (ii) that coordination of list prices is not anti-competitive.
48 It is apparent from the applications that the first part of the first plea is put forward in order to support the third plea. Accordingly, this part of the plea must be understood and examined as an argument advanced in support of the third plea.
49 As regards the second part of the first plea, the applicants maintain that the coordination of list prices in which they were involved did not have an anti‑competitive object, since the list price is an indicative price. They add that, in view of the discounts and rebates granted to wholesalers, there is no connection between the list prices and the transaction prices paid by wholesalers and that, even though list prices are rising, if the transaction prices paid by wholesalers are not increasing, the prices paid by the final consumer will not increase either.
50 The Commission disputes the merits of those arguments.
51 In that regard, first, the Court observes that, according to the case-law, Article 101(1) TFEU precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of actual or potential competitors or, in the case of an economic operator, to disclose to such competitors its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to restrict competition (see, to that effect, Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraphs 116 and 117). Moreover, there is no need to take account of the actual effects of a concerted practice once it is apparent that its object is to prevent, restrict or distort competition within the common market (Case C‑8/08 T‑Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 29).
52 Next, it is apparent from the wording of Article 101(1)(a) TFEU that concerted practices have an anti‑competitive object if they ‘directly or indirectly fix purchase or selling prices or any other trading conditions’. Therefore, in view of the fact that Article 101 TFEU, like the other competition rules of the FEU Treaty, is designed to protect not only the immediate interests of competitors or consumers, but also the structure of the market, and, thus, competition as such, it has been held that it is not possible on the basis of that wording to conclude that only concerted practices which have a direct effect on the prices paid by consumers are prohibited (see to that effect, T‑Mobile Netherlands and Others, paragraph 51 above, paragraphs 36 to 38). Moreover, as has been observed in paragraph 51 above, in deciding whether a concerted practice is prohibited by Article 101(1) TFEU, there is no need to take account of its actual effects once it is apparent that its object is to prevent, restrict or distort competition within the common market.
53 Finally, it has been held that setting a price, even one that is merely indicative, affects competition because it allows all the participants in the cartel to foresee with a reasonable degree of certainty what pricing policy will be pursued by their competitors. More generally, such cartels entail direct interference with the essential parameters of competition on the relevant market. By expressing the common intention to apply a given price level to their products, the producers concerned do not independently determine their policy on the market, thus undermining the concept inherent in the provisions of the Treaty relating to competition (see Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 310 and the case-law cited).
54 Secondly, according to the case-law, an exchange of information is incompatible with the EU rules on competition if it reduces or removes the degree of uncertainty as to the operation of the market in question with the result that competition between undertakings is restricted (see, to that effect, Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 81 and the case-law cited).
55 The disclosure of sensitive information removes uncertainty as to the future conduct of a competitor and thus directly or indirectly influences the strategy of the recipient of the information (see, to that effect, Case C‑238/05 Asnef-Equifax and Administración del Estado [2006] ECR I‑11125, paragraph 51 and the case‑law cited). Each economic operator must therefore determine independently the policy which he intends to adopt on the internal market and the conditions which he intends to offer his customers (see Thyssen Stahl v Commission, paragraph 54 above, paragraph 82 and the case-law cited).
56 While it is true that this requirement of independence does not deprive operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact between them, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market (Thyssen Stahl v Commission, paragraph 54 above, paragraph 83 and the case-law cited).
57 Lastly, the Court of Justice has also held that the compatibility of an information exchange system with the EU competition rules cannot be assessed in the abstract. It depends on the economic conditions on the relevant markets and on the specific characteristics of the system concerned, such as, in particular, its purpose and the conditions of access to it and participation in it, as well as the type of information exchanged, be that, for example, public or confidential, aggregated or detailed, historical or current, the periodicity of such information and its importance for the fixing of prices, volumes or conditions of service (Asnef-Equifax and Administración del Estado, paragraph 55 above, paragraph 54).
58 In the present case, the applicants, in the second part of the first plea, deny having fixed the transaction prices for wholesalers. However, as the applicants confirmed in response to a question put by the Court at the hearing, in general terms they do not deny having taken part in practices concerning the indicative list prices published by each bathroom fittings and fixtures manufacturer.
59 In accordance with the case-law cited in paragraph 51 above, in so far as the coordination between the bathroom fittings and fixtures manufacturers of – albeit indicative – list prices was such as to have an effect on normal competition, it must be held that, contrary to what is maintained by the applicants, that conduct in which they took part has an anti-competitive object.
60 First of all, in general terms, indicative prices in price lists serve as a starting point for subsequent negotiations with customers. Consequently, whatever the purchasing power of the wholesalers on the bathroom fittings and fixtures market may have been, the annual coordination of those prices between manufacturers is liable to have influenced the level set for the transaction prices paid initially by those wholesalers and, subsequently, by the end consumer.
61 Next, it can be seen from their applications that, although the applicants deny that this was so in the case in point, they do not, however, rule out the possibility that concerted action between product manufacturers which seeks to increase the indicative list prices may affect normal competition. Thus they argue that it might be that the prices invoiced to the end consumer are the indicative, increased, list prices, whilst specifying that, in such a case, the overall price to be paid by that consumer might not increase if the installer decided to reduce its margin on other products and services. Nor do the applicants deny that the increase in list prices might deter end consumers from buying the products concerned. Consequently, it must be held that, even if the changes in transaction prices did not follow those in list prices, that does not exclude the possibility that the coordinated increases in those list prices were capable of having an impact on the prices paid both by the wholesalers and by the end consumer, by permitting those prices either to be increased or, at the least, to be maintained.
62 Furthermore, in so far as the applicants assert that, in the present case, the coordinated increase in list prices in which they participated did not form the starting point of negotiations which the bathroom fittings and fixtures manufacturers entered into with their customers, the evidence which they produce in support of that assertion does not bear it out.
63 First, the applicants produce two charts comparing the evolution of Keramag’s indicative list prices with that of its transaction prices. Those two charts concern around 40 products. However, the applicants provide no explanation either as to which products are concerned or as to how those products were selected and to what extent they are representative of their products as a whole. Furthermore, the prices given are average prices, with the result that it is not possible to compare the evolution of the transaction price and the indicative list price of each of the products. Lastly, those two charts do not show that there is no connection between list prices and transaction prices. Although they show a reduction in transaction prices, the possibility cannot be excluded that the increases in the indicative list prices had an anti-competitive effect by limiting the size of that reduction.
64 Second, the applicants produce a number of diagrams from which it is apparent that the increases in the indicative list prices varied from one product to another. Nevertheless, such diagrams do not establish that transaction prices were not influenced by the changes in the indicative list prices.
65 Third, the applicants produce charts showing significant differences between the rebates and discounts granted to various wholesalers and between the transaction prices paid by the various wholesalers for the same product. However, such charts do not prove that the increases in the indicative list prices did not have an impact on the setting of transaction prices.
66 Fourth, the applicants reproduce a chart representing the difference, by product, between the changes in the transaction price and those of the indicative list prices. Although the applicants maintain that that chart shows the absence of a systematic relationship between list price changes and transaction price changes, the Court notes, as the Commission has done, that the differential between those changes, as shown by that chart, is, for the majority of the products, less than 5% and in many cases close to 0%. The chart in question thus cannot be used to show convincingly that the transaction prices do not reflect the evolution of the indicative list prices.
67 Consequently, the Commission was fully entitled to hold, in recital 935 to the contested decision, that the setting, by the bathroom fittings and fixtures manufacturers, of annual increases in their list prices had an anti-competitive object. The first plea must therefore be rejected as unfounded.
B – Second plea in law: the applicants could not be held responsible for an infringement as regards taps and fittings
68 The applicants maintain, in essence, that the Commission was not entitled to hold them liable for an infringement on the taps and fittings market. More specifically, although they state that they are not challenging the legality of the contested decision in so far as the Commission characterised the infringement found as single and continuous, they do complain that it held them responsible for their participation in that infringement, without having taken account of the actual geographic and material scope of their participation in the infringement. First, the concept of a single and continuous infringement cannot be used to hold undertakings responsible for anti-competitive activity by object in relation to a product when they do not produce the product but merely buy it. Second, the concept of a single and continuous infringement has traditionally been used to impute responsibility for an infringement to an undertaking whose actual participation did not extend to the whole of the territory covered by an infringement. The applicants submit that it cannot therefore be used to impute responsibility to an undertaking which does not produce one of the three distinct products covered by the single and continuous infringement in question, since, even if that undertaking had been aware of an infringement relating to taps and fittings, that knowledge could not have contributed to a plan, elaborated by the taps and fittings manufacturers, to distort competition. Third, the evidence on which the Commission relied in the contested decision, in particular in recital 853 thereto, does not establish that the applicants were aware (or should reasonably have been aware) that the infringement also covered taps and fittings.
69 The Commission disputes the merits of the applicants’ arguments.
1. Reminder of the case-law and preliminary observations
70 As regards the characterisation of an infringement as single and continuous, it should be recalled that, according to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or of that continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (Commission v Anic Partecipazioni, paragraph 51 above, paragraph 81, and Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 258).
71 An undertaking which has participated in such a single and continuous infringement through its own conduct, which fell within the definition of an agreement or concerted practice having an anti-competitive object for the purposes of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may accordingly be liable also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (Commission v Anic Partecipazioni, paragraph 51 above, paragraphs 87 and 203, and Aalborg Portland and Others v Commission, paragraph 70 above, paragraph 83).
72 An undertaking may thus have participated directly in all the aspects of anti‑competitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the anti‑competitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the anti-competitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole.
73 It follows from the case-law cited in paragraphs 70 to 72 above that characterisation as a single infringement concerns agreements or concerted practices which could be regarded as infringements of Article 101 TFEU in relation to a specific product or a particular geographic area but which the Commission – because they form part of an overall plan – considers as a whole. Thus, first, since characterisation as a single infringement concerns, by definition, agreements or concerted practices which infringe Article 101 TFEU in relation to a particular product and/or a particular geographic area but which the Commission – because they are connected by an overall plan – considers as a whole, it does not relieve the Commission of its obligation to establish that there is a distortion of competition in relation to each of the markets concerned by the infringement in question. Second, the finding of a single and continuous infringement is liable, by its very nature, to concern undertakings which are not competitors.
74 In the case in point, as has been mentioned in paragraph 15 above, the Commission held, on the basis of reasoning developed in recitals 793 to 849 to the contested decision, that the practices described in paragraph 2 above, which concerned the three product sub-groups, formed part of an overall plan intended to restrict competition between the addressees of the contested decision and presented the characteristics of a single and continuous infringement.
75 In that regard, it can be seen from the contested decision that the Commission characterised the facts alleged against the bathroom fittings and fixtures manufacturers having regard to 10 factors, which are listed in recital 796 to the contested decision and then described in recitals 797 to 849 thereto.
76 First, there was a central group of undertakings which participated (i) in the cartel in several Member States investigated by the Commission and (ii) in several meetings of umbrella associations and cross-product associations. Second, the Commission identified a number of umbrella associations, cross-product associations and product-specific associations in which the participants regularly discussed business relating to the other product sub-groups. Third, the way the industry functioned and, in particular, the role played by wholesalers in the three‑tier distribution system attest to the existence of objective links between the three product sub-groups. Fourth, the cartel arrangements always had the same pattern and used the same mechanisms for all the relevant Member States and all the product sub-groups concerned. Fifth, the coordination of annual price increases was supplemented by anti-competitive agreements concluded on the occasion of particular events and by the disclosure of other sensitive business information. Sixth, the undertakings taking part in the meetings of national associations regularly referred to developments in other Member States and the cross-border trade flows showed that the anti-competitive arrangements in the various Member States were to some extent complementary. Seventh, the majority of the multi‑national undertakings applied centralised pricing policies which facilitated the coherent organisation of the cartel across different Member States and different product sub-groups. Eighth, the three product sub-groups comprise general bathroom equipment referred to as ‘products before the wall’ (‘Produkte vor der Wand’) and the addressees of the contested decision acknowledge that they are complementary. Ninth, a feature of the cartel arrangements was their stability over time. Tenth, a number of representatives moved between undertakings or had responsibility for more than one Member State or more than one product sub-group or participated in cartel meetings of different associations and in different Member States.
77 Although the legal characterisation of the arrangements in question as a single and continuous infringement was not challenged in due time by the applicants, the Court states for the sake of completeness that the abovementioned factors show that there are close synergies between the cartel arrangements put into effect in the six Member States concerned and in relation to the three product sub-groups. Those synergies are such that they establish that the arrangements are complementary and contribute, through their interaction, to bringing about the set of anti-competitive effects sought by the bathroom fittings and fixtures manufacturers. It is the set of anti-competitive effects sought by those manufacturers which constitutes the overall plan, as referred to by the case-law cited in paragraph 70 above, even though that plan was not formally worked out, in advance, by a coordinating umbrella organisation.
2. Attribution to the applicants of responsibility for the infringement found
78 In the first place, as regards the argument that the applicants do not produce taps and fittings and that consequently the Commission cannot hold them liable for the infringement found, it should be noted that, in recitals 850 to 879 to the contested decision, the Commission attributed liability for the whole or part of the single and continuous infringement to manufacturers, including the applicants, of some of the three product sub-groups. It was thus not in any capacity as taps and fittings manufacturers that the applicants were held liable for the infringement found, but rather in their capacity as manufacturers of ceramics and shower enclosures.
79 In the second place, with regard to the argument concerning the way the concept of a single and continuous infringement has traditionally been used, first, as has been held in paragraph 73 above, characterisation as a single infringement concerns agreements or concerted practices which could be regarded as infringements of Article 101 TFEU in relation to a specific product or a particular geographic area but which the Commission, because they form part of an overall plan, considers as a whole. The applicants are therefore incorrect in maintaining that the concept of a single infringement has traditionally been used to attribute liability for an infringement to an undertaking whose actual participation in the infringement in question did not extend to the full geographic scope, rather than the full material scope, of the infringement.
80 Second, the applicants’ assertion that, even if they had been aware of an infringement in the taps and fittings sector, that knowledge would not have enabled them to contribute to a plan, elaborated by the taps and fittings manufacturers, to distort competition must be held to be based on a clearly incorrect understanding of the concept of single and continuous infringement.
81 Indeed, inasmuch as the infringement at issue in these proceedings covers the three product sub-groups, the Commission was obliged, in order to characterise it as single and continuous, to prove that there was an overall plan elaborated jointly by the manufacturers of taps and fittings, ceramics and shower enclosures rather than a plan elaborated solely by the taps and fittings manufacturers. As has been stated inter alia in paragraph 77 above, the Commission was correct, in the case in point, in concluding that such a plan existed.
82 Moreover, it is apparent from the case-law referred to in paragraphs 70 to 72 above that the applicants’ knowledge of the anti-competitive activities of the taps and fittings manufacturers was such as to establish their participation in the infringement found.
83 In the third place, as regards the evidence on which the Commission relied in order to prove that the applicants knew or should have known that the infringement also covered taps and fittings, it should be noted that the Commission stated, in recital 853 to the contested decision, that the applicants had participated in cartel meetings of national industry associations in the Member States covered by the infringement found. More specifically, it made mention of their participation in the meetings of the umbrella associations IFS, ASI, SFP and SVS, which covered the three product sub-groups, and the cross-product association Michelangelo. Those findings relating to the applicants’ participation in those meetings, which are not challenged by them, were sufficient for the Commission to conclude that the applicants were aware of the geographic and material scope of the overall plan of which the various anti-competitive actions of the participants in the single and continuous infringement in question formed part.
84 In view of all the foregoing considerations, the second plea must be rejected as unfounded and, consequently, in view of the considerations in paragraph 39 above and on that basis, the second head of claim must be rejected too.
C – Third plea in law: error of law and errors of assessment on the Commission’s part with regard to the evidence concerning the applicants’ participation in France, Germany and Italy in the infringement found
85 By their third plea, the applicants maintain, in essence, that the evidence relied on by the Commission to establish that they participated in France, Germany and Italy in the infringement was insufficient. This plea is divided into three parts, which deal with each of those three Member States in turn.
86 The Commission disputes the merits of those arguments.
87 In accordance with the Court’s decision in paragraph 48 above, first, the error of law complained of in the first part of the first plea should be examined in conjunction with the third plea. The applicants’ allegations of errors of assessment will be considered thereafter.
1. The Commission’s alleged error of law in presuming that discussions between non-competitors had an anti-competitive object
88 The applicants maintain, in essence, that a concerted practice between non‑competitors cannot be presumed to have an anti-competitive object. They submit that the Commission was therefore wrong to conclude that, in their capacity as manufacturers of ceramics and shower enclosures, they had participated, with taps and fittings manufacturers, in discussions whose object was anti-competitive.
89 The Commission disputes the merits of those arguments.
90 In this connection, the Court notes, at the outset, that it is common ground between the parties that the Commission characterised the practices described in paragraph 2 above, in so far as they concerned the three product sub-groups in particular, as a single and continuous infringement.
91 Next, it should be observed that, according to the case-law, if the practice in question is implemented by undertakings which do not compete on any product market, an undertaking may infringe the prohibition laid down in Article 101(1) TFEU where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a specific relevant market within the common market, without that meaning that the undertaking itself has to be active on that relevant market and even if it does not restrict its own freedom of action on the market on which it is primarily active (Case T‑99/04 AC‑Treuhand v Commission [2008] ECR II‑1501, paragraphs 122 and 127). In such a situation, the Commission is nevertheless obliged to show that the undertaking that it intends to punish has actively contributed to a restriction of competition and may not presume that the undertaking’s conduct, as coordinated with that of other undertakings, has affected competition (see, to that effect, AC‑Treuhand v Commission, paragraph 127).
92 It follows from the case-law referred to in paragraph 91 above that, where, in the course of a meeting, undertakings exchange commercially sensitive information concerning the products they manufacture and one of the undertakings attending that meeting does not manufacture such products, it cannot be presumed, merely on the basis of the finding of that exchange, that that undertaking, which does not compete with the other attendees on the relevant product market, has participated in a practice whose object is in itself anti-competitive.
93 In view of the foregoing considerations, the applicants are correct in maintaining that the Commission may not presume that conduct, such as a concerted practice, between non-competitors has an anti-competitive object.
2. The errors of assessment made by the Commission in the examination of evidence
94 First of all, it is necessary to refer to the relevant case-law concerning the burden of proof in proceedings for infringement of Article 101(1) TFEU.
95 In that regard, it should be borne in mind that the Commission must prove the infringements found by it and adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58, and Commission v Anic Partecipazioni, paragraph 51 above, paragraph 86).
96 Moreover, in proceedings for annulment brought under Article 263 TFEU, all that is required of the Courts of the European Union is to verify the legality of the contested measure (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 174).
97 Thus, the role of a Court hearing an application for annulment of a Commission decision finding an infringement of the competition rules and imposing fines on the addressees is to assess whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the alleged infringement (see, to that effect, Joined Cases T‑305/94, T‑306/94, T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission (‘PVC II’) [1999] ECR II‑931, paragraph 891).
98 Moreover, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding the infringement was addressed (see, to that effect, Case 27/76 United Brands and United Brands Continentaal v Commission [1978] ECR 207, paragraph 265). The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine (JFE Engineering and Others v Commission, paragraph 96 above, paragraph 177).
99 Thus, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see, to that effect, Joined Cases 29/83 and 30/83 Compagnie Royale Asturienne des Mines and Rheinzink v Commission [1984] ECR 1679, paragraph 20, and Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraphs 43 and 72).
100 However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see, to that effect, PVC II, paragraph 97 above, paragraphs 768 to 778, and in particular paragraph 777, confirmed on the relevant point by the Court of Justice, on appeal, in its judgment in 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, paragraphs 513 to 523).
101 Moreover, as anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the economic operators concerned. The fragmentary and sporadic items of evidence which may be available to the Commission must, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Aalborg Portland and Others v Commission, paragraph 70 above, paragraphs 55 to 57, and Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraphs 64 and 65).
102 So far as concerns the types of evidence which may be relied on to establish an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, the basic principle in EU law is that evidence may be freely adduced (see, by analogy, Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 72).
103 Consequently, an absence of documentary evidence is relevant only in the overall assessment of the probative value of the body of evidence relied on by the Commission. It does not, in itself, however, enable the undertaking concerned to call the Commission’s claims into question by presenting a different explanation of the facts. An applicant may do so only where the evidence submitted by the Commission does not enable the infringement to be established unequivocally and without the need for interpretation (see, to that effect, judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 74).
104 In addition, no provision or general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Article 101 TFEU and Article 53 of the EEA Agreement, which is borne by the Commission, would be unsustainable and incompatible with its task of supervising the proper application of those provisions (see, by analogy, JFE Engineering and Others v Commission, paragraph 96 above, paragraph 192).
105 However, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter undertakings unless it is supported by other evidence, given that the degree of corroboration required may be lesser in view of the reliability of the statements at issue (JFE Engineering and Others v Commission, paragraph 96 above, paragraphs 219 and 220).
106 As regards the probative value of the various items of evidence, the only relevant criterion for the purpose of evaluating the evidence produced is its reliability (Dalmine v Commission, paragraph 102 above, paragraph 72).
107 According to the general rules relating to evidence, the credibility, and, thus, the probative value, of a document depends on the person from whom it originates, the circumstances in which it came into being, the person to whom it was addressed and whether it appears sound and reliable (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraphs 1053 and 1838).
108 Moreover, it is also for the Commission to prove the duration of the infringement, since duration is a constituent element of the concept of an infringement under Article 101(1) TFEU. The rules mentioned above are applicable in that regard (see, to that effect, Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, paragraphs 94 to 96).
109 Lastly, the case-law set out in paragraphs 95 to 108 above is applicable, by analogy, to Article 53(1) of the EEA Agreement.
a) The first part of the third plea, relating to the evidence concerning the infringement in France
110 The applicants maintain that, in essence, the Commission’s conclusion, in recitals 556 and 590 to the contested decision, that Allia and PCT coordinated their minimum prices for low-end products within AFICS, in the course of a meeting on 25 February 2004, is based on evidence which is either inadmissible or unreliable, uncorroborated and insufficient.
111 The Commission disputes the merits of that argument.
112 In that regard, the Court notes that it is apparent from Table D in recital 1223 to the contested decision that, on the basis of their presence at the AFICS meeting on 25 February 2004, the Commission held that PCT and Allia had actually participated in the infringement on the French market for eight months, corresponding to the period from 25 February to 9 November 2004.
113 It is also apparent from recitals 556 and 590 to the contested decision that the Commission’s conclusion that, at the AFICS meeting on 25 February 2004, the ceramics manufacturers coordinated their minimum prices for low-end products is based on four items of evidence: (i) Duravit’s reply to the statement of objections (recital 584 to the contested decision), (ii) Ideal Standard’s application under the 2002 Leniency Notice (recital 583 to the contested decision), (iii) a chart provided by Ideal Standard in an annex to its leniency application (recital 588 to the contested decision) and (iv) Roca’s application under the 2002 Leniency Notice (recital 556 to the contested decision).
114 Those various items of evidence must be considered in turn in the light of the case-law cited in paragraphs 95 to 108 above in order to determine, inter alia, their probative value.
115 In the first place, concerning Duravit’s statement in its reply to the statement of objections, which confirms that discussions concerning minimum prices took place at the AFICS meeting on 25 February 2004, it should be noted that – as the Commission confirmed in answer to a question put by the Court at the hearing – that statement was not disclosed to the applicants during the administrative proceedings. Nor was mention made of that statement in the letter of facts of 9 June 2009 sent to the applicants.
116 According to the case-law, where a document was not disclosed to the undertaking concerned whilst the Commission drew conclusions from it, the information contained in that document cannot be used in the proceedings (see, to that effect, Case C‑62/86 AKZO v Commission [1991] ECR I‑3359, paragraph 21). Accordingly, that document cannot be regarded as admissible evidence in that regard (see, to that effect, Case 107/82 AEG-Telefunken v Commission [1983] ECR 3151, paragraph 27). Duravit’s statement therefore cannot be considered to be evidence which may be relied on as against the applicants.
117 In the second place, as regards the statements made by Ideal Standard in its application under the 2002 Leniency Notice, it must be borne in mind that, by virtue of the case-law cited in paragraph 105 above, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter undertakings unless it is supported by other evidence.
118 In the present case, it is clear from the contested decision that Ideal Standard’s statements relating to the AFICS meeting on 25 February 2004 were contested. Thus, in recital 585 to the contested decision the Commission refers to the fact that Villeroy & Boch and Allia considered that the coordination of minimum prices, in particular in the context of that meeting, was not proved. Consequently, Ideal Standard’s statements, on their own, are not sufficient proof of the anti‑competitive nature of the discussions that took place at that meeting.
119 In the third place, with regard to the chart provided by Ideal Standard as an annex to its application under the 2002 Leniency Notice, the Court notes that it comprises four columns entitled respectively ‘mini’, ‘maxi’, ‘IS’ and ‘Porcher’, ‘IS’ standing for Ideal Standard and the sign Porcher being registered as a trade mark whose proprietor is Ideal Standard. That chart is undated and contains nothing that might link it to the AFICS meeting of 25 February 2004 or to any anti-competitive discussions. In particular, the chart does not mention the names of competitors or any minimum or maximum prices which those competitors should apply. There are therefore no grounds for asserting, as the Commission does in the defence, that that chart amounts to documentary evidence corroborating the allegation that prices were fixed at that meeting, as described by Ideal Standard in the statements made in the context of its leniency application.
120 In the fourth place, with regard to Roca’s application under the 2002 Leniency Notice, it is noteworthy that the Commission itself states, in recital 586 to the contested decision, that, although, in that application, Roca confirms the exchanges on minimum prices within AFICS between 2002 and 2004 in general, Roca claims, with regard in particular to the AFICS meeting on 25 February 2004, that Ideal Standard’s description of the coordination of minimum prices at that meeting has not been confirmed by other leniency applicants. Accordingly, it must be stated that the Commission could not rely, in the absence of evidence corroborating them, on Roca’s statements in its leniency application, in order to prove that coordination of minimum prices had been put in place at the meeting on 25 February 2004.
121 In view of all the foregoing considerations, the applicants are correct in taking issue with the Commission for having found that Allia and PCT participated in anti‑competitive conduct at the AFICS meeting on 25 February 2004. Consequently, the first part of the third plea must be accepted as well founded.
b) The second part of the third plea, relating to the evidence concerning the infringement in Germany
122 The applicants maintain, in essence, that the evidence on which the Commission relies in the contested decision in concluding that Keramag participated in anti‑competitive conduct in Germany, entailing in particular the coordination of future price increases at industry association meetings between 7 July 2000 and 9 November 2004, is insufficient.
123 The Commission disputes the merits of that argument.
124 Having regard to the case-law set out in paragraphs 99 to 101 above, the Court, in order to determine whether the Commission was entitled to conclude that Keramag participated, in Germany, in the infringement found, between 7 July 2000 and 9 November 2004, will start by examining each of the items of evidence relating to the meetings and conduct in which the applicants were involved and will then go on to consider, generally, whether the body of evidence thus relied on by the Commission in support of its assessment is precise and consistent.
The evidence concerning the anti-competitive conduct in Germany
125 As a preliminary point, it should be made clear that the second part of the third plea in law is based on five complaints alleging errors of assessment with regard to (i) evidence relating to the meetings of the umbrella association IFS which Keramag attended, (ii) evidence relating to meetings of the product-specific association FSKI which Keramag attended, (iii) evidence of Keramag’s participation in discussions concerning pricing on the introduction of the euro, (iv) evidence of Keramag’s participation in discussions on pricing on the introduction of road tolls and (v) a list established by Hansgrohe of addressees for announcements of price increases in 2001 and 2002 (‘Hansgrohe’s list’).
126 The third and fourth complaints, which relate to the evidence put forward by the Commission with regard to the anti-competitive conduct that occurred on the introduction of the euro and the establishment of road tolls, concern the actions that took place at the same meetings of the umbrella association IFS and the product-specific association FSKI as those which are in issue in the first and second complaints. As is apparent from recital 777 to the contested decision, the coordination of price increases on the occasion of specific events of that kind is an extension of the regular coordination of annual price increases. Consequently, in its examination of the evidence relating to the meetings of the umbrella association IFS and the product-specific association FSKI, the Court will consider first of all the first and second complaints and subsequently, if that first appraisal does not show that the evidence has high probative value, the third and fourth complaints.
– The meetings of the umbrella association IFS
127 The applicants claim, in essence, that none of the meetings of the umbrella association IFS which took place between 5 October 2000 and 20 July 2004, which are referred to in Annex 1 to the contested decision, could be relied on as against them. They submit, first, that Keramag did not attend the IFS meetings on 14 November 2001, 30 April 2002, 2 and 9 April 2003 and 27 April 2004. Next, they submit that the Commission did not make any allegation in the grounds of the contested decision that unlawful discussions had taken place in the IFS meetings on 24 April 2001, 11 April 2002, 18 July and 13 November 2003. Lastly, the evidence put forward with regard to the IFS meetings on 5 October 2000, 23 May 2001, 20 November and 4 July 2002, 15 October 2003 and 20 July 2004 does not show that Keramag was involved in discussions concerning price fixing or an exchange concerning planned price increases.
128 In the first place, the Court notes that it can be seen from Annex 1 to the contested decision that Keramag did not attend the IFS meetings of 14 November 2001, 30 April 2002, 2 and 9 April 2003 and 27 April 2004. The Commission cannot therefore rely on those meetings as evidence of the applicants’ participation in the anti-competitive practices alleged to have been put into effect within IFS.
129 In the second place, although Annex 1 to the contested decision shows that the applicants attended the IFS meetings of 24 April 2001, 18 July and 13 November 2003, since those three meetings are not mentioned in the grounds of the contested decision as having given rise to any anti-competitive conduct as between the participants, the evidence adduced in respect of those three meetings cannot be used against the applicants to establish that they participated in the anti‑competitive practices allegedly implemented within the framework of IFS. As regards the IFS meeting of 11 April 2002, reference is made to it in recital 217 to the contested decision.
130 In the third place, as regards the IFS meetings of IFS of 5 October 2000, 23 May 2001, 11 April, 4 July and 20 November 2002, 15 October 2003 and 20 July 2004, it is appropriate to examine the complaint that the evidence relied on by the Commission was insufficient to support its conclusion that the discussions that took place at those meetings were anti-competitive in nature.
131 First, as regards the IFS meeting on 5 October 2000, the Court notes that it is mentioned inter alia in recital 271 to the contested decision and that the Commission states therein, in particular, that the participants discussed their price increases for 2001 at that meeting. In support of its finding, the Commission, in footnote 281 to the contested decision, referred, inter alia, to the notes of Mr S. (Hansgrohe) concerning the IFS meeting on 5 October 2000 (‘Hansgrohe’s notes’).
132 It should also be noted that Hansgrohe’s notes, which the applicants do not deny are contemporaneous and which they have annexed to their applications, include, in this regard, the following passage:
‘Prices 2001:
Planned price increases
ADA + 7.5%
Ceramics + 4.5%
Bathroom furniture + 5-7%
Bath tubs + 4-5%
Taps and fittings + 4-5%
Tough discussions with a range of between 0.5 and 1%’
133 The extract from Hansgrohe’s notes, cited in paragraph 132 above, shows unambiguously the anti-competitive object of the meeting in question. The price increases for 2001 that were, on that occasion, disclosed between the participants constitute sensitive information within the meaning of the case-law set out in paragraphs 54 to 57 above.
134 The fact, put forward by the applicants in their applications, that Keramag’s list prices did not increase by 4.5% in 2001, but only by around 0.5%, which they maintain shows that Keramag did not agree to that price increase and did not implement it, is of no relevance in this regard.
135 Indeed, according to the case-law cited in paragraph 51 above, there is no need to take account of the actual effects of a concerted practice once it is apparent that its object is to prevent, restrict or distort competition within the common market. Furthermore, the fact that certain plans are not implemented does not mean that Article 101 TFEU and Article 53 of the EEA Agreement will not apply.
136 Moreover, even if the applicants did not signal their agreement to the price increases for 2001, it is sufficient, according to the case-law, for the Commission to show that the undertaking concerned participated in meetings at which anti‑competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it (see Aalborg Portland and Others v Commission, paragraph 70 above, paragraphs 81 and 82 and the case-law cited). Apart from the fact that the applicants do not claim to have adduced proof of this, it does not appear from Hansgrohe’s notes that Keramag indicated to the other participants at the IFS meeting on 5 October 2000 that it was opposed to the fixing of price increases.
137 In view of the foregoing considerations, the Court considers that the evidence produced by the Commission concerning the IFS meeting on 5 October 2000 has, in itself, high probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
138 Secondly, the Court notes that the IFS meeting on 23 May 2001 is referred to in the contested decision in footnote 867, relating to recital 635 which forms part of section 4.3 entitled ‘Specific events for which prices were fixed or coordinated’. In support of its assessment relating to the introduction of the euro, the Commission referred, in footnote 867, to the minutes of that meeting.
139 It should also be noted that the minutes of the IFS meeting of 23 May 2001, which the applicants do not deny are contemporaneous and which they have annexed to their applications, include, in this respect, the following passage:
‘Introduction of the euro
In the attached document the wholesalers explain their request that they be provided with the price increases for 2002 by 31 July 2001 at the latest …’
140 The minutes of the IFS meeting of 23 May 2001 thus refer to a request from the wholesalers that the price increases be provided to them by a given date. However, they make no mention of those increases being coordinated between the bathroom fittings and fixtures manufacturers. The minutes do not therefore amount to proof of anti-competitive conduct. However, in the case in particular of a single and continuous infringement, they may be fragmentary evidence for the purposes of the case-law set out in paragraphs 100 and 101 above, which it will be appropriate to consider in the examination of the body of evidence relied on by the Commission.
141 In view of the foregoing considerations, the Court considers that the evidence produced by the Commission concerning the IFS meeting on 23 May 2001 has, in itself, low probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
142 Third, the IFS meeting on 11 April 2002 is referred to in recital 217 to the contested decision, which concerns the timing of the price increases in Germany in 2003 and which is included in section 4.2.1.2 of the contested decision relating to the facts identified by the Commission in Germany concerning the regular coordination of price increases. In support of its assessment, the Commission referred, in footnote 189, to the notes taken of that meeting.
143 It should also be observed that the minutes of the IFS meeting of 11 April 2002, which the applicants do not deny are contemporaneous and which the Commission has annexed to the defence, include, concerning the conditions in which prices were determined, the following passage:
‘Introduction of the Euro – Transitional prices for 2003
The members of [the umbrella association] IFS decide that the transitional rules set for the previous year will be maintained for the 2002/2003 year.’
144 It is apparent from the wording of the minutes of the IFS meeting on 11 April 2002 that the participants agreed that the transitional rules previously adopted in connection with the introduction of the euro should continue to apply in 2003. However, the Commission did not analyse in the contested decision what those transitional rules were. At most it refers in recital 644 to the contested decision, with regard to the actions taken in Germany by the manufacturers as a consequence of the introduction of the euro, to the meeting of the product-specific association FSKI on 13 July 2001. As is apparent from the Court’s examination, in paragraph 170 below, of the evidence relating to that meeting, it does not show that on that occasion the manufacturers discussed coordination of price increases in view of the introduction of the euro.
145 Accordingly, the wording of the minutes of the IFS meeting of 11 April 2002 does not, in itself, support the conclusion that there was conduct whose object was anti‑competitive. However, in the case in particular of a single and continuous infringement, it may be fragmentary evidence for the purposes of the case-law set out in paragraphs 100 and 101 above, which it will be appropriate to take into account in the examination of the body of evidence relied on by the Commission.
146 In view of the foregoing considerations, the Court considers that the evidence produced by the Commission concerning the IFS meeting on 11 April 2002 has, in itself, low probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
147 Fourth, the IFS meeting on 20 November 2002 is referred to in recital 221 to the contested decision. In that recital, the Commission states that at that meeting the participants considered ways of determining end-consumer prices by agreeing with wholesalers on a uniform fixed multiplier. In support of its finding the Commission, in footnote 196, referred inter alia to minutes of that meeting.
148 It should also be noted that the minutes of the IFS meeting of 20 November 2002, which the applicants do not deny are contemporaneous and which they have annexed to their applications, include, in this respect, the following passage:
‘The present context of price setting, dominated by the wholesalers, leads repeatedly, through the excessive increase of the margins applied by the wholesalers to the manufacturers’ sale prices, to the “pricing out” of branded products. In order to avoid such foreclosure of products, it would be necessary to agree with the wholesalers on a uniform fixed multiplier.’
149 It can be seen from the wording of the minutes of the IFS meeting on 20 November 2002 that, in order to guard against the negative effects, on certain product ranges, which resulted from the wholesalers’ power to set the margins applied on sale prices to end consumers, the bathroom fittings and fixtures manufacturers who took part in that meeting had agreed on the need to set, with the agreement of the wholesalers, a uniform fixed multiplier for calculating those margins.
150 The agreement concluded between the bathroom fittings and fixtures manufacturers, in so far as it records the need to adopt a procedure that would allow the market prices to be fixed, is, by its object, such as to distort competition. Although the application of such a multiplier may benefit the end consumer inasmuch as it may contribute to limiting the increase in the wholesalers’ sale prices, the fact remains that it may just as well prevent a wholesaler from charging the end consumer a lower price than the price calculated on the basis of the multiplier. Therefore, in the light of the case-law referred to in paragraph 51 above, the discussions at the IFS meeting on 20 November 2002 are anti‑competitive in nature.
151 Next, the Court observes that, in recital 752 to the contested decision, the Commission asserted that it had been stated at the IFS meeting on 20 November 2002 that the additional costs arising from the introduction of road tolls should be indicated on the invoice. In support of its contention, the Commission again referred to the minutes of that meeting.
152 It should also be noted that the minutes of the IFS meeting of 20 November 2002 include, in this respect, the following passage:
‘[T]he introduction of a road toll for trucks which is intended to take place in the second half of the year 2003 has not been taken into account by the industry in the present price calculation. Therefore, it could only be taken into account in the invoice as separately stated additional costs.’
153 The extract from the minutes of the IFS meeting of 20 November 2002, which is cited in paragraph 152 above, shows unambiguously the anti-competitive object of the meeting. It demonstrates that the participants agreed on arrangements for taking into account the costs arising from the introduction of road tolls in setting the prices to be paid by their customers.
154 In view of the foregoing considerations, the Court considers that the evidence produced by the Commission concerning the IFS meeting on 20 November 2002 has, in itself, high probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
155 Fifthly, the IFS meetings of 4 July 2002, 15 October 2003 and 20 July 2004 are mentioned in recital 238 to the contested decision. In that recital the Commission states that, at those meetings, the participants exchanged turnover data and export figures. In support of its finding, the Commission, in footnotes 227 to 229 to the contested decision, referred inter alia to handwritten notes and minutes of those meetings.
156 It can be seen from the handwritten notes relating to the IFS meetings of 4 July 2002, 15 October 2003 and 20 July 2004 and from the minutes concerning the meetings of 4 July 2002 and 15 October 2003, which the applicants do not deny are contemporaneous and which they have annexed to their applications, that, at those meetings, the participants exchanged data, in the form of percentages, relating to the past, and, to a lesser extent, future, evolution of both their national sales and exports.
157 The exchange of information which took place at the IFS meetings of 4 July 2002, 15 October 2003 and 20 July 2004 is not, as such, anti-competitive in nature. However, in the case in particular of a single and continuous infringement, it may be fragmentary evidence for the purposes of the case-law set out in paragraphs 100 and 101 above, which it will be appropriate to take into account in the examination of the body of evidence relied on by the Commission.
158 In view of the foregoing considerations, the Court considers that the evidence produced by the Commission concerning the IFS meetings of 4 July 2002, 15 October 2003 and 20 July 2004 has, in itself, low probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
– The evidence relating to the product-specific association FSKI
159 The applicants maintain, in essence, that the meetings of the product-specific association FSKI that took place on 7 and 8 July 2000, 13 July 2001, 23 January 2002, 5 July 2002, 17 January 2003 and 4 and 5 July 2003, which are mentioned in Annex 4 to the contested decision, could not be relied on against them. They submit that the Commission did not make any allegation in the grounds of the contested decision that anti-competitive discussions had taken place at the FSKI meetings on 23 January and 5 July 2002. They also maintain that the evidence produced by the Commission in respect of both those meetings and the FSKI meetings of 7 and 8 July 2000, 13 July 2001, 17 January 2003 and 4 and 5 July 2003 is insufficient to establish that Keramag was involved in discussions about price fixing or an exchange on planned price increases.
160 As a preliminary point, it should be made clear that the applicants dispute the probative value of the evidence relating to six of the seven FSKI meetings relied on by the Commission. It is apparent from Annex 4 to the contested decision that, in that annex, the Commission had also found that Keramag had attended an FSKI meeting on 23 January 2001. As the applicants raise no argument concerning the last-mentioned meeting, they must be held not to be challenging the probative value of the evidence produced by the Commission in relation to that meeting for the purpose of showing their participation in the infringement found.
161 First of all, the Court concurs with the applicants’ submission that, although Annex 4 to the contested decision shows that they attended the FSKI meetings on 23 January and 5 July 2002, those two meetings are not mentioned in the grounds of the contested decision as having given rise to any anti-competitive conduct as between the participants. Therefore, the evidence put forward in relation to those two meetings may not be used against the applicants in order to prove that they took part in anti-competitive conduct within the framework of the FSKI meetings.
162 Secondly, concerning the FSKI meetings on 7 and 8 July 2000, 13 July 2001, 17 January and 4 and 5 July 2003, consideration should be given to whether the Commission had sufficient evidence to conclude that the discussions which took place at those meetings were anti-competitive in nature.
163 In the first place, as regards the FSKI meetings on 7 and 8 July 2000 and 13 July 2001, the Court notes that, in recital 270 to the contested decision, the Commission mentions them in particular when dealing with the anti-competitive activities in which Keramag took part in Germany. In particular, in the case of the meeting of 7 and 8 July 2000, the Commission states that it can be seen from Ideal Standard’s notes of that meeting, provided in the context of its application under the 2002 Leniency Notice, that the ceramics manufacturers discussed their pricing, at least with regard to a 3% cost surcharge. According to the Commission, the notes also specifically record that Duravit’s representative proposed continuing with their regular 4% price increase, which had been applied in a coordinated manner. As regards the meeting on 13 July 2001, the Commission maintains that it is apparent from the notes of the meeting that the maximum price increase envisaged for the forthcoming price cycle (2002) was to be around 3%. According to the Commission, the notes also indicate that all the participants had agreed to apply a 50% exhibition rebate for wholesalers.
164 In that regard, the applicants do not contest the accuracy of the notes of the FSKE meetings on 7 and 8 July 2000 and 13 July 2001, on which the Commission based its assessment; nor do they deny that the notes are contemporaneous.
165 First, they merely complain that the Commission based its assessment on evidence relating to the FSKI meetings on 7 and 8 July 2000 and 13 July 2001 to support its contention that the applicants continued to be involved in anti-competitive conduct after 2001. Suffice it to observe in that regard that the maximum price increase discussed at the later meeting concerned the price cycle for 2002. Accordingly, that complaint must be rejected as unfounded.
166 Next, the applicants maintain that, with regard to the FSKI meeting of 7 and 8 July 2000, Keramag’s list price did not increase by 4% in 2001 but by around only 0.5%, which shows that Keramag did not agree to that increase and did not implement it. Such a complaint must, for the reasons already stated in paragraphs 135 and 136 above, be rejected as ineffective for the purpose of evaluating the probative nature of that evidence.
167 Lastly, the Court must also reject as ineffective the applicants’ reference to the arguments advanced in support of their first plea with a view to reinforcing the arguments they put forward in support of the third plea concerning the FSKI meetings.
168 As regards the first part of the first plea, accepted by the Court in so far as the applicants maintain that conduct, such as a concerted practice, between non‑competitors cannot be presumed to have an anti-competitive object, it is nevertheless the case, which has not been disputed by the applicants, that the FSKI meetings on 7 and 8 July 2000 and 13 July 2001 gave rise to discussions between them and competitors concerning the market for one of the three product sub-groups, namely ceramics. Second, as regards the second part of the first plea, the Court concluded, in paragraph 67 above, that it had to be rejected as unfounded.
169 Furthermore, the content of the notes referred to in paragraph 163 above shows unambiguously the anti-competitive object of the FSKI meetings of 7 and 8 July 2000 and 13 July 2001. The price increases which the participants discussed among themselves on that occasion constitute sensitive information within the meaning of the case-law set out in paragraphs 54 to 57 above.
170 In view of the foregoing considerations, the Court considers – without finding it necessary to adjudicate upon the applicants’ arguments concerning the anti‑competitive activities in Germany connected with the introduction of the euro, as described by the Commission in recital 644 to the contested decision – that the evidence produced by the Commission concerning the FSKI meetings of 7 and 8 July 2000 and 13 July 2001 has, in itself, high probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
171 In the second place, the FSKI meetings on 17 January and 4 and 5 July 2003 are mentioned in footnote 224, which substantiates recital 238 to the contested decision. That recital forms part of the grounds relating to the fact that price coordination was backed up by an exchange of business information, concerning sales in particular. In support of its finding, the Commission referred in particular to the minutes of those two meetings.
172 The Court notes that the applicants do not deny that the minutes of the FSKI meetings of 17 January and 4 and 5 July 2003 are contemporaneous and that they have included them in the annexes to their applications.
173 First, it is apparent from the minutes of the FSKI meeting on 17 January 2003 that, as well as exchanging general and historic business data concerning the sector as a whole, the participants first of all discussed price coordination. Indeed, the minutes state:
‘Mr [W] reports on the recently introduced system of conditions and prices, which has been organised in a uniform manner across all product categories.’
174 The extract from the minutes of the FSKI meeting of 17 January 2003 cited in paragraph 173 above shows unambiguously the anti-competitive object of that meeting. The presentation of the report in question allowed the participants to follow through the system of price coordination which they had put in place and whose object was undoubtedly anti-competitive. Accordingly, that report constitutes sensitive information within the meaning of the case-law set out in paragraphs 54 to 57 above.
175 Next, the minutes of the FSKI meeting on 17 January 2003 also include the following passage concerning the introduction of road tolls:
‘[T]he opinion [of the manufacturers] is that such costs, which have neither been produced by the sanitary ceramics industry and which cannot be influenced by it, would need to be passed on via prices’.
176 The extract from the minutes of the FSKI meeting of 17 January 2003 cited in paragraph 175 above also shows the anti-competitive object of that meeting. It shows that the participants at that meeting coordinated their conduct on the market in response to the increase in costs associated with the introduction of road tolls.
177 Secondly, with regard to the FSKI meeting on 4 and 5 July 2003, it can be seen from the minutes of that meeting that, in addition to exchanges of general and historic business data concerning the sector as a whole, the participants held discussions concerning the introduction of road tolls reported in the following extract:
‘Road tolls
The participants agree that this additional burden, which amounts to a tax increase, cannot be borne unilaterally by the industry. However, the passing on to the trade has to be done cautiously, since the actual additional burden for the ceramics manufacturers is according to the statements of the participants only between 0.2 and 0.4% of the turnover.’
178 The extract from the minutes of the FSKI meeting of 4 and 5 July 2003 cited in paragraph 177 above shows the anti-competitive object of that meeting. It shows that, at that meeting, the participants agreed upon the way to react to the introduction of road tolls, deciding to pass on the costs of those tolls via the prices invoiced to the customers, thereby distorting competition.
179 In view of the foregoing considerations, the Court considers that the evidence produced by the Commission concerning the FSKI meetings on 17 January and 4 and 5 July 2003 has, in itself, high probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
– Hansgrohe’s list
180 In recital 213 to the contested decision, the Commission stated that the bathroom fittings and fixtures manufacturers informed each other of price increases by sending each other their price increase announcements and that, to that end, Hansgrohe kept an updated list of addressees for its price increase announcements for 2001 and 2002, on which Keramag’s name appeared.
181 It should be noted that the applicants do not deny either that Hansgrohe’s list existed or the fact that it was a list of addressees of letters announcing prices. However, they maintain that the Commission has not produced any evidence that such announcements were sent or received and that the list does not include the name of a contact person at Keramag and contains a wrong address.
182 In that regard, it must be held that the existence of Hansgrohe’s list is sufficient to establish that exchanges concerning prices took place between the bathroom fittings and fixtures manufacturers. The fact that the list includes a wrong address for Keramag and does not contain the name of a contact person for it is irrelevant in this regard, since it is established, inter alia, that Keramag participated in a number of meetings of the umbrella association IFS and the product-specific association FSKI in the course of which anti-competitive conduct has been found to have taken place.
183 Although Hansgrohe’s list does not prove the existence of price coordination between the members of the cartel in question, it may be fragmentary evidence for the purposes of the case-law set out in paragraphs 100 and 101 above, which it will be appropriate to take into account in the examination of the body of evidence relied on by the Commission. Accordingly, in itself it has a high probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
The precise and consistent nature of the evidence relied on by the Commission to prove that Keramag participated in the cartel in Germany between 7 July 2000 and 9 November 2004
184 In the light of (i) the case-law set out in paragraphs 99 to 101 above and (ii) the conclusions reached following the examination, in paragraphs 127 to 183 above, of the evidence assembled by the Commission with regard to Keramag’s participation in the cartel in Germany between 7 July 2000 and 9 November 2004, it is now appropriate to carry out an overall assessment of whether the body of evidence relied on by the Commission for the purpose of proving that participation meets the requirements for precision and consistency so as to support the firm conviction that the applicants participated in the infringement in question.
185 In that respect, it is clear from the conclusions reached above concerning the examination, in paragraphs 127 to 183 above, of the evidence assembled by the Commission with regard to Keramag’s participation in the cartel in Germany between 7 July 2000 and 9 November 2004, that, first and foremost, the evidence relating to the following meetings has, in itself, high probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found:
– the FSKI meeting on 7 and 8 July 2000;
– the IFS meeting on 5 October 2000;
– the FSKI meeting on 23 January 2001;
– the FSKI meeting on 13 July 2001;
– the IFS meeting on 20 November 2002;
– the FSKI meeting on 17 January 2003;
– the FSKI meeting on 4 and 5 July 2003.
186 In view of the high probative value attaching both to the evidence relating to the meetings listed in the preceding paragraph, which were held in 2000, 2001, 2002 and 2003, and to Hansgrohe’s list, the Court finds that the applicants have no grounds for maintaining that the Commission failed to prove to the requisite legal standard that they participated in the infringement in question in Germany throughout those four years.
187 So far as 2004 is concerned, the Commission proved that a meeting of the umbrella association IFS was held on 20 July 2004. The evidence relating to that meeting has low probative value.
188 However, it should be borne in mind that the applicants do not deny that the cartel in question, as stated in paragraph 2 above, operated on the basis of annual cycles for coordinating price increases which followed regular meetings during the preceding calendar year. The Court has found that the Commission had established to the requisite legal standard that the FSKI meeting on 4 and 5 July 2003 which Keramag attended had an anti-competitive object inasmuch as it had concerned price increases to be applied following the introduction of road tolls.
189 Next, the IFS meeting on 20 July 2004 took place after a long period of four years during which Keramag regularly took part in a number of meetings in Germany of IFS and of FSKI, whose anti-competitive object the Commission has established to the requisite legal standard.
190 Furthermore, as the Court has noted in paragraph 156 above, the participants exchanged sales and exports data at the IFS meeting on 20 July 2004. That information must be considered capable of bolstering the mechanism for coordinating price increases alleged by the Commission in respect of the infringement found, as it provided the bathroom fittings and fixtures manufacturers with information about the effects of the price-increase coordination on sales development and allowed them to monitor the implementation of the price increases decided upon in earlier meetings.
191 Lastly, the Court finds that at no time during its participation in the IFS and FSKI meetings held from 2000 onwards, whose anti-competitive object the Commission has established to the requisite legal standard, did Keramag publicly distance itself from what was discussed.
192 It must therefore be held that the Commission was fully entitled to conclude, even by inference, that Keramag had continued to participate in the cartel in Germany in 2004.
193 In view of all the foregoing considerations, it must be held that the body of evidence relied on by the Commission, viewed as a whole, is sufficiently precise and consistent to support the firm conviction that the applicants participated in the infringement in question in Germany during the period 2000 to 2004.
194 Furthermore, the Court notes that the Commission decided, as was stated in recital 1140 to the contested decision, without being challenged by the applicants in that respect, that in order to determine the starting date for each undertaking’s participation in the cartel it was using the first meeting for which there is uncontroversial evidence of discussion on prices and of the participation of the undertaking concerned. The Commission thus did not make an error in finding that Keramag had participated, in Germany, in the infringement found from 7 July 2000.
195 Similarly, as regards the date on which participation in the cartel came to an end, it is clear from recital 1170 to the contested decision, which the applicants do not challenge either, that the Commission considered that the cartel had continued until the unannounced inspections on 9 and 10 November 2004. As the Court held in paragraph 192 above, since the Commission was fully entitled to conclude that the applicants had participated in the infringement in question in Germany in 2004, it is equally entitled to conclude that that participation came to an end on 9 November 2004.
196 It follows from all of the foregoing considerations that the second part of the third plea must be rejected as unfounded.
c) The third part of the third plea, relating to the evidence concerning the infringement in Italy
197 The applicants maintain, in essence, that the evidence on which the Commission based its conclusion in the contested decision that Pozzi Ginori participated in anti-competitive conduct in Italy entailing inter alia coordination of future price increases at the meetings of the cross-product association Michelangelo, between 14 May 1996 and 14 September 2001, is insufficient.
198 The Commission disputes the merits of the applicants’ arguments.
199 Having regard to the case-law set out in paragraphs 99 to 101 above, the Court, in order to determine whether the Commission was entitled to conclude that Pozzi Ginori, between 14 May 1996 and 14 September 2001, participated, in Italy, in the infringement found, will start by examining the evidence relating to the meetings and conduct in which the applicants participated and will then go on to consider, generally, whether the body of evidence relied on by the Commission in support of its assessment is precise and consistent.
The evidence relating to the anti-competitive conduct in Italy
200 As a preliminary point, it should be noted that the table in Annex 7 to the contested decision makes clear that the Commission found that Pozzi Ginori had attended meetings of the cross-product association Michelangelo on 14 May 1996, 18 July 1996, 26 February, 21 April, 23 September and 14 November 1997, 30 January, 8 July and 6 November 1998, 14 May and 22 October 1999, 16 March, 12 May, 20 July and 26 October 2000, 9 March and 14 September 2001. Michelangelo’s membership comprised particularly taps and fittings manufacturers and ceramics manufacturers.
201 It should also be noted that the third part of the third plea is structured around two complaints concerning respectively (i) Michelangelo meetings that took place prior to the meeting on 14 May 1999 and (ii) meetings of that association that took place thereafter. The Court will consider each of those complaints in turn.
– The evidence relating to the Michelangelo meetings that took place prior to 14 May 1999
202 In view of the arguments put forward by the applicants in support of the third part of the third plea, the Court will consider separately the evidence relating to the Michelangelo meeting on 8 July 1998.
203 First, with regard to the Michelangelo meetings that took place before 14 May 1999 (other than the meeting on 8 July 1998 which they acknowledge was attended by Ideal Standard), the applicants assert that no ceramics manufacturer to which the contested decision was addressed, other than Pozzi Ginori, attended the Michelangelo meetings that took place between 14 May 1996 and 6 November 1998. They explain that, although two competitors on the Italian ceramics market had attended those meetings, neither the statement of objections nor the contested decision was addressed to them. Pozzi Ginori cannot therefore be accused of having participated in anti-competitive conduct at those meetings. In the reply, the applicants add that the Commission infringed their rights of defence, since it referred to the Michelangelo meeting of 14 May 1996 for the first time in the contested decision but did not mention it in the statement of objections.
204 The Commission disputes the applicants’ arguments.
205 In the first place, it must be stated that the applicants raised the complaint alleging infringement of the rights of the defence for the first time in the reply and that it is not founded on any matters of law or of fact which have come to light in the proceedings. The Commission made specific mention of the Michelangelo meeting of 14 May 1996 in recitals 405, 420, 435 and 1154, and footnote 1616, to the contested decision; that is not disputed by the applicants. A complaint put forward at the stage of the reply is inadmissible where, inter alia, it is founded on matters which were known to the applicant at the time the action was brought (see, to that effect, judgment of 21 October 2010 in Case T‑474/08 Umbach v Commission, not published in the ECR, paragraph 60). This complaint must therefore be rejected as inadmissible.
206 In the second place, as regards the complaint whereby the applicants deny that they participated, in Italy, prior to 14 May 1999 in the infringement found, the first point to make is that, in the contested decision, the Commission set out the facts it had identified with regard to Italy (recitals 398 to 462 to the contested decision), the arguments put forward by the applicants in their reply to the statement of objections in this respect, its findings and conclusions in the light of those arguments (recitals 489 to 491) and its final conclusion concerning Italy (recitals 492 to 494 to the contested decision).
207 Next, it is true that in the introduction to the third part of the third plea the applicants point out that Michelangelo meetings were attended by an informal group of cross-industry participants who were searching for general information on trends across the bathrooms sector but who, because of a lack of common ground, did not pursue coordination of cross-industry market behaviour.
208 However, the fact remains that, as is apparent from their arguments concerning the Michelangelo meetings that took place between 14 May 1996 and 6 November 1998, other than the meeting of 8 July 1998, the applicants have at no point put forward a substantiated argument to challenge the probative value of the evidence which was in the Commission’s file and which the Commission used to establish the anti-competitive object of the activities engaged in at those meetings. Furthermore, that lack of any challenge so far as those meetings are concerned can be seen from both the applications and the reply. Indeed, whilst the Commission, in the defence, summarised and communicated to the Court the evidence from its case-file which relates to each of those meetings, at no point in either the applications or the reply do the applicants contest the probative value of that evidence. Thus, in the reply they merely maintain the single argument they set out in the application, as summarised in paragraph 203 above.
209 Consequently, the only argument put forward by the applicants to refute the allegation that – prior to the Michelangelo meeting on 14 May 1999, the meeting on 8 July 1998 aside – they participated, in Italy, in the infringement found is based on the fact that the Commission did not instigate proceedings against two of Pozzi Ginori’s other competitors on the Italian ceramics market, although they allegedly attended all those meetings. More specifically, they argue that neither the statement of objections nor the contested decision was addressed to those two competitors and that the Commission decided not to instigate proceedings in their regard. They infer from that that the activities which the Commission found had taken place at those meetings were not anti-competitive.
210 Such an argument cannot succeed. First, by that argument, the applicants state that some of their competitors on the Italian ceramics market attended the Michelangelo meetings, other than the meeting of 8 July 1998, which took place between 14 May 1996 and 6 November 1998.
211 Next, it must be observed that, according to the case-law, no provision of Regulation No 1/2003 requires the Commission – which does not have exclusive jurisdiction in the matter – to find and punish all anti-competitive conduct. Thus, it is plain, inter alia, from the provisions of Chapter V, which is entitled ‘Powers of investigation’, and Chapter VI, which is entitled ‘Penalties’, of Regulation No 1/2003 that the Commission has only the power to act in that way (‘may’) where it considers that the infringement in question so justifies (see, to that effect and by analogy, the judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 369). Therefore, neither the fact that the Commission decided not to instigate proceedings against two of Pozzi Ginori’s other competitors on the ceramics market, even though they had attended the meetings referred to in paragraph 210 above, nor the fact that those competitors were not addressees of either the statement of objections or the contested decision, necessarily means that no infringement had been committed at the meetings concerned, at which those competitors and the applicants were present.
212 In view of the foregoing considerations, it must be held that the applicants are wrong to complain that the Commission held them responsible, in the light of the evidence which it used in the contested decision, for the anti-competitive conduct engaged in at the Michelangelo meetings, with the exception of the meeting on 8 May 1998, which took place prior to the meeting of 14 May 1999. Accordingly, the Commission did not make an error in relying on the Michelangelo meetings of 14 May and 18 July 1996, 26 February, 21 April, 23 September and 14 November 1997 and 30 January and 6 November 1998 in order to establish Pozzi Ginori’s participation in the anti-competitive conduct held to constitute the infringement found.
213 Next, the applicants maintain that the Commission’s conclusions concerning the Michelangelo meeting on 8 July 1998, which are set out in recital 430 to the contested decision, are not supported by the evidence.
214 The Commission disputes the applicants’ arguments.
215 On this point, it is sufficient to state that, even if the applicants’ arguments were well founded, they are not such as to show that the Commission made an error in holding that Pozzi Ginori had participated in anti-competitive conduct in Italy between 14 May 1996 and 14 May 1999. As has been stated in paragraph 188 above, the applicants do not challenge the Commission’s finding, set out in, inter alia, recital 158 to the contested decision, that the annual price cycle was a basic principle of the way the cartel functioned. Therefore, in view of the findings set out in paragraph 212 above, which concern the evidence on which the Commission rightly relied in relation to the Michelangelo meetings of 14 May and 18 July 1996, 26 February, 21 April, 23 September and 14 November 1997 and 30 January and 6 November 1998, the Commission could properly consider that the applicants had participated in anti-competitive conduct which had begun at the meeting on 14 May 1996 and had continued until the meeting on 6 November 1998.
– The evidence relating to the Michelangelo meetings which took place after 14 May 1999
216 With regard to the eight meetings recorded in Annex 7 to the contested decision which took place between 14 May 1999 and 14 September 2001, the applicants submit, in essence, that the evidence relied on by the Commission is not sufficient to prove an infringement.
217 The Commission disputes the applicants’ arguments.
218 As is apparent from paragraph 200 above, the eight Michelangelo meetings which Pozzi Ginori attended from 14 May 1999 onwards took place on that date and then on 22 October 1999, 16 March, 12 May, 20 July and 26 October 2000 and 9 March and 14 September 2001. The Court will consider the evidence relied on by the Commission in respect of (i) the meetings of 22 October 1999 and 14 September 2001, (ii) the meetings of 14 May 1999, 16 March 2000 and 9 March 2001 and (iii) the meetings of 12 May, 20 July and 26 October 2000.
219 In the first place, the Court notes that the Michelangelo meetings of 22 October 1999 and 14 September 2001 are referred to in recitals 435 and 445 to the contested decision respectively. The Commission states there that the discussions concerned, at the first meeting, sales and market development and, at the second meeting, the latest sales developments by undertaking. In support of its assessment, the Commission referred, in footnotes 538 and 553 to the contested decision, to handwritten notes taken in the course of those meetings.
220 It is clear from the handwritten notes taken during the Michelangelo meetings of 22 October 1999 and 14 September 2001, and from the Commission’s answers to a question put by the Court at the hearing, that Pozzi Ginori was the only ceramics manufacturer present.
221 Furthermore, as has been held in paragraph 92 above, where, in the course of a meeting, undertakings exchange commercially sensitive information concerning the products they manufacture and one of the undertakings attending that meeting does not manufacture such products, it cannot be presumed, merely on the basis of the finding of that exchange, that that undertaking, which does not compete with the other attendees on the relevant product market, has participated in a practice whose object is in itself anti-competitive.
222 In the present case, it must be stated that, contrary to the case-law referred to in paragraph 91 above, the Commission did not establish that Pozzi Ginori had actively contributed to a restriction of competition on the occasion of the Michelangelo meetings of 22 October 1999 and 14 September 2001, but relied solely on Pozzi Ginori’s presence at those meetings to hold it responsible for the anti-competitive conduct allegedly committed on that occasion by the other participants, with which it was not in competition.
223 In view of the foregoing considerations, the evidence relating to the Michelangelo meetings of 22 October 1999 and 14 September 2001 has no probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
224 In the second place, the Court notes that the Michelangelo meetings of 14 May 1999, 16 March 2000 and 9 March 2001 are referred to in recitals 435, 439 and 445 to the contested decision respectively. The Commission states there that, at the first meeting, discussions concerned, in particular, sales and market developments, at the second meeting, discussions mainly concerned turnover and sales developments by undertaking and, at the third meeting, discussions concerned the latest sales developments by undertaking. In support of its assessment, the Commission referred, in footnotes 538, 543 and 551 to the contested decision, to the handwritten notes taken in the course of those meetings.
225 It is apparent from the handwritten notes taken at the Michelangelo meetings of 14 May 1999, 16 March 2000 and 9 March 2001 that, as the Commission stated in the contested decision, although the discussions that took place at those three meetings gave rise to exchanges of information concerning market developments and developments in the participants’ sales and turnover, they did not, at any time, concern information such as future prices.
226 Consequently, the exchanges of information which took place at those three meetings are not, as such, anti-competitive in nature. However, in the case in particular of a single and continuous infringement, they may be fragmentary evidence for the purposes of the case-law set out in paragraphs 100 and 101 above, which it will be appropriate to take into account in the examination of the body of evidence relied on by the Commission.
227 In view of the foregoing considerations, the Court considers that the evidence put forward by the Commission concerning the Michelangelo meetings of 14 May 1999, 16 March 2000 and 9 March 2001 has, in itself, low probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
228 In the third place, the Court notes that the Michelangelo meetings of 12 May, 20 July and 26 October 2000 are referred to in recitals 439, 441 and 442 to the contested decision respectively. The Commission states there that, at the first meeting, the discussions concerned sales and market developments and Ideal Standard confirmed the 3% price increase for its ceramics and the 2% increase for its taps and fittings, that, at the second meeting, a number of participants, including Pozzi Ginori, confirmed price increases for products they manufactured, which would become applicable, depending on the case, between 1 September 2000 and 1 January 2001 and that, at the third meeting, one of the issues discussed were the price increases to be applied from 1 January 2001. In support of its assessment, the Commission referred, in footnotes 543, 546 and 548 to the contested decision, to handwritten notes taken in the course of those meetings.
229 It is apparent from the handwritten notes taken at the Michelangelo meetings of 12 May, 20 July and 26 October 2000, which the applicants do not deny are contemporaneous and which the Commission has annexed to the defence, that the discussions which took place at those meetings concerned not only past sales but also future price increases envisaged by the participants, in particular with regard to ceramics, which is not disputed by the applicants.
230 Consequently, the notes referred to in paragraph 229 above show unambiguously the anti-competitive object of the Michelangelo meetings on 12 May, 20 July and 26 October 2000. Such information exchanges constitute sensitive information within the meaning of the case-law set out in paragraphs 54 to 57 above. Furthermore, as the Court concluded following examination of the second part of the first plea (see paragraphs 63 to 66 above), the fact that those discussions concerned list prices and not the prices actually invoiced is irrelevant.
231 In view of the foregoing considerations, the Court considers that the evidence put forward by the Commission concerning the Michelangelo meetings on 12 May, 20 July and 26 October 2000 has, in itself, high probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found.
The precise and consistent nature of the evidence relied on by the Commission to prove that Pozzi Ginori participated in the cartel in Italy from 14 May 1996 to 14 September 2001
232 In the light of (i) the case-law set out in paragraphs 99 to 101 above and (ii) the conclusions reached following the examination, in paragraphs 202 to 231 above, of the probative value of the respective pieces of evidence assembled by the Commission with regard to Pozzi Ginori’s participation in the cartel in Italy between 14 May 1996 and 14 September 2001, it is now appropriate to carry out an overall assessment of whether the body of evidence relied on by the Commission for the purpose of proving that participation meets the requirements for precision and consistency so as to support the firm conviction that the applicants participated in the infringement in question.
233 In that respect, first, as has been concluded in paragraph 212 above, the Commission was fully entitled to rely on the Michelangelo meetings on 14 May and 18 July 1996, 26 February, 21 April, 23 September and 14 November 1997 and 30 January and 6 November 1998 in order to establish Pozzi Ginori’s participation in the anti-competitive conduct held to constitute the infringement found.
234 Second, it is apparent from the foregoing conclusions regarding the examination, in paragraphs 216 to 231 above, of the evidence assembled by the Commission with regard to the Michelangelo meetings which took place after 14 May 1999 and which Pozzi Ginori attended that the evidence relating to the following Michelangelo meetings has, in itself, high probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found:
– the meeting of 12 May 2000;
– the meeting of 20 July 2000;
– the meeting of 26 October 2000.
235 In the light of (i) the conclusion referred to in paragraph 233 above, from which it is apparent that the Commission was fully entitled to rely on a number of meetings held in 1996, 1997 and 1998, and (ii) the high probative value of the evidence relating to the meetings listed in the preceding paragraph, which took place in 2000, the Court finds that the applicants have no grounds for maintaining that the Commission failed to adduce sufficient evidence to prove that they participated in the infringement in question in Italy throughout those four years.
236 As regards the years 1999 and 2001, as the Court concluded in paragraph 227 above, the evidence put forward by the Commission concerning the Michelangelo meetings of 14 May 1999 and 9 March 2001 has low probative value.
237 However, first of all, the Court recalls that the cartel in question operated on the basis of annual cycles for the coordination of price increases which followed regular meetings during the previous calendar year. The Court has held that the Commission established to the requisite legal standard that Pozzi Ginori had taken part in meetings in 1998 and 2000 during which the participants had discussed coordination of future price increases.
238 Next, the two Michelangelo meetings of 14 May 1999 and 9 March 2001 took place after a long period of at least three years during which Pozzi Ginori regularly took part in a number of meetings of that association, whose anti‑competitive object the Commission has established to the requisite legal standard.
239 Furthermore, as has been stated by the Court in paragraph 225 above, at the Michelangelo meetings on 14 May 1999 and 9 March 2001, the participants exchanged information concerning market developments and developments in the participants’ sales and turnover. That material must be considered such as to bolster the mechanism for coordinating price increases which the Commission held to be part of the infringement found, as it gave the bathroom fittings and fixtures manufacturers an idea of the effects of the price-increase coordination on sales development and allowed them to monitor the implementation of the price increases decided upon in earlier meetings.
240 Lastly, the Court finds that at no time during its participation in the Michelangelo meetings held from 1996 onwards, whose anti-competitive object the Commission has established to the requisite legal standard, did Pozzi Ginori publicly distance itself from what was discussed.
241 It must therefore be held that the Commission was fully entitled to conclude, even by inference, that Pozzi Ginori had continued to participate in the cartel in Italy at the Michelangelo meetings of 14 May 1999 and 9 March 2001.
242 In view of all the foregoing considerations, it must be held that the body of evidence relied on by the Commission, viewed as a whole, is sufficiently precise and consistent to support the firm conviction that the applicants participated in the infringement in question in Italy during the period 1996 to 2001.
243 As regards the starting date for Pozzi Ginori’s participation in the cartel, it should be observed, as has been stated in paragraph 194 above, that the Commission used the first meeting for which there was uncontroversial evidence of discussion on prices and of the participation of the undertaking concerned. Accordingly, in view of the conclusion reached in paragraph 212 above, the Commission did not make an error in finding that Pozzi Ginori had participated in the cartel in Italy from the time of the Michelangelo meeting on 14 May 1996.
244 As regards the date on which Pozzi Ginori’s participation in the cartel came to an end, the Commission stated in recital 1172 to the contested decision that its participation had lasted until the Michelangelo meeting on 14 September 2001. As the Court has stated in paragraph 223 above, the evidence relating to the Michelangelo meetings of 22 October 1999 and 14 September 2001 has no probative value for the purpose of establishing the applicants’ participation in the anti-competitive conduct held to constitute the infringement found. Therefore, as the evidence relating to the latter meeting has no probative value at all, the Commission was wrong to hold that Pozzi Ginori had participated in the cartel in Italy until the date of that meeting. Conversely, as the Court has stated in paragraph 241 above, the Commission was fully entitled to conclude that Pozzi Ginori had continued to participate in the cartel in Italy at the Michelangelo meetings of 14 May 1999 and 9 March 2001. The Commission therefore did not make an error in holding that the applicants’ participation in the cartel in Italy had lasted until 9 March 2001.
245 It is apparent from the foregoing considerations that the third part of the third plea must be accepted inasmuch as the Commission made an error in concluding that the applicants had participated in a ceramics cartel in Italy from 14 May 1996 until 14 September 2001, even though it had produced sufficient proof of their participation in that cartel only in respect of the period from 14 May 1996 to 9 March 2001.
246 In view of the foregoing considerations, the Court accepts the first and third parts of the third plea and rejects it as to the remainder.
D – Fourth plea in law: no interest in making a finding of infringement in the Netherlands
247 The applicants submit that the contested decision is unlawful in so far as the Commission makes a finding of infringement against Sphinx in the Netherlands although the infringement is time-barred. They submit that the Commission failed to show, in recital 1179 to the contested decision, that there was a legitimate interest in making such a finding. First, they maintain that, as the alleged infringement in the Netherlands was not contemporaneous with the infringements found in the most closely related bordering countries (namely Belgium, France and Germany), it is incorrect to assert that the finding of this infringement helps to explain the true scope and consistency of the anti-competitive conduct. Second, the Commission has not shown that it is necessary to make this finding as regards Sphinx.
248 The Commission disputes the merits of the applicants’ arguments.
249 It must be recalled that, under Article 7(1) of Regulation No 1/2003, ‘[i]f the Commission has a legitimate interest in doing so, it may … find that an infringement has been committed in the past’.
250 Admittedly, as the applicants assert, the Court, in its judgment in Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II‑4065, paragraph 138, held that the Commission had not explained why the gravity and geographic scale of the infringements in question had made it necessary to make findings of infringements which had come to an end.
251 However, it is noteworthy that the case-law subsequent to that judgment has not confirmed, contrary to the applicants’ contention, that the legitimate interest test, for the purposes of Article 7(1) of Regulation No 1/2003, was to be understood as referring to an obligation to prove that it is necessary to make a finding in respect of an infringement which is time-barred. In fact, in Case T‑474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission [2007] ECR II‑4225, paragraph 72, the Court, in that regard, merely referred to the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised and the interest of persons harmed by the infringement in being informed of the details thereof so that they may, where appropriate, assert their rights against the undertakings punished.
252 In the present case, the Court observes that, in recital 1179 to the contested decision, the Commission, after stating that the infringement in the Netherlands was time-barred at the date of the contested decision’s adoption, considered that there was a legitimate interest in making a finding in respect of that part of the infringement found, as it formed part of a wider overall infringement and therefore helped to explain the true scope and consistency of the anti-competitive behaviour concerned.
253 In that regard, the Court considers that the finding of an infringement within the framework of SFP, even though time-barred, helps to show the overall scope of the infringement found in this case by giving a broader picture of the cross-product and cross-border nature of the infringement. That finding also corroborates the important part played by industry associations in the functioning of the cartel.
254 In view of the foregoing considerations, the finding made in recital 1179 to the contested decision must be held to be relevant to an understanding of the operation of the cartel as a whole. Accordingly, the Commission did not make an error in taking the view that the finding of an infringement within the framework of SFP helped to explain the true scope and consistency of the anti-competitive behaviour. It follows that it has duly established a legitimate interest in finding an infringement in the case of the time-barred infringement relating to cartel meetings in the Netherlands within the framework of SFP.
255 That conclusion is not called in question by the applicants’ arguments.
256 First, as regards the fact that the infringement associated with SFP was not contemporaneous with the infringements found in Belgium, France and Germany, suffice it to state that it is precisely because those infringements did not occur at the same time that the Commission is better able to demonstrate the overall scope and long-standing nature of the infringement at issue in the present case.
257 Second, contrary to the applicants’ submission, the Commission is under no obligation to show that the finding of the time-barred infringement is necessary. The case-law referred to in paragraph 251 above does not admit of such an interpretation. Nor, in any event, does such an interpretation follow from the provisions of Article 7(1) of Regulation No 1/2003. It is quite clear from those provisions that they refer to the obligation to demonstrate that there is a legitimate interest in making a finding of infringement in respect of an infringement which is time-barred and that, as a consequence, such an obligation cannot be indissociably linked with any obligation to show that such a finding is necessary. Obliging the Commission to show that it is necessary to find the infringement would amount to increasing the burden of proof without due cause in contradiction with the wording of Article 7(1).
258 In view of all the foregoing considerations, the fourth plea must be rejected as unfounded.
E – Fifth plea in law: infringement of the rights of the defence
259 The fifth plea is divided into two parts alleging (i) that the Commission failed to give the applicants proper access to its file and (ii) that the Commission failed properly to detail the allegations made against them in the statement of objections.
260 Before examining each of those two parts, the Court will summarise the relevant case-law.
261 According to the case‑law, in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be complied with even if the proceedings in question are administrative proceedings (Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 94, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 270). It requires that the undertakings concerned be afforded the opportunity, from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission (Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 11, and Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 49).
262 The right of access to the file, which is a corollary of the principle of observance of the rights of the defence, means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating evidence and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (Aalborg Portland and Others v Commission, paragraph 70 above, paragraph 68, and Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 145).
263 With regard to inculpatory evidence, observance of the rights of the defence requires, according to the case-law, that the undertaking concerned must have been able to express its views effectively on the evidence used by the Commission to support its allegation of infringement. In that regard the obligation to allow access to the file relates merely to the evidence ultimately relied on in the decision and not to all the complaints which the Commission may have expressed at any stage of the administrative procedure (Joined Cases T‑191/98 and T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 337).
264 According to the case-law, if the Commission is found to have relied in the contested decision on documents that were not in the investigation file and were not communicated to the applicants, those documents should be excluded as evidence. In that case it is necessary therefore to check whether the complaint made in the final decision is sufficiently made out by the other inculpatory evidence relied on to which the applicants did have access (Atlantic Container Line and Others v Commission, paragraph 263 above, paragraph 338).
265 With regard to exculpatory evidence, it is clear from the case-law that it cannot be for the Commission alone to decide which documents are of use for the defence of the parties involved in a proceeding for infringement of the competition rules. In particular, having regard to the general principle of equality of arms, it is not acceptable for the Commission alone to decide whether or not to use against the applicants documents to which they did not have access, so that they were unable to decide whether or not to use them in their defence (Atlantic Container Line and Others v Commission, paragraph 263 above, paragraph 339).
266 Where it is established that during the administrative procedure the Commission did not disclose to the applicants documents which might have contained exculpatory evidence, there will be an infringement of the rights of the defence only if it is shown that the administrative procedure would have had a different outcome if the applicant had had access to the documents in question during that procedure. Where the exculpatory documents in question are not in the Commission’s investigation file, an infringement of the rights of the defence may be found only if the applicant had expressly asked the Commission for access to those documents. If the applicant does not do so, his right in that respect is barred in any action for annulment brought against the final decision (Atlantic Container Line and Others v Commission, paragraph 263 above, paragraph 340).
267 It should also be recalled that the statement of objections is a document whose aim is to delimit the scope of the procedure initiated against an undertaking and to ensure that the rights of the defence may be exercised effectively (see Case T‑69/04 Schunk and Schunk Kohlenstoff‑Technik v Commission [2008] ECR II‑2567, paragraph 80 and the case‑law cited).
268 In that context, the statement of objections must specify clearly the facts upon which the Commission relies and its classification of those facts (AKZO v Commission, paragraph 116 above, paragraph 29). It must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission (see, to that effect, Case T‑12/03 Itochu v Commission [2009] ECR II‑883, paragraph 168).
1. The first part of the fifth plea: the Commission did not give the applicants proper access to its file
269 The applicants submit that the Commission infringed their rights of defence since (i) it failed to include in its file relevant, exculpatory evidence, namely competitors’ price lists for the years 1995 to 2002, (ii) it failed to give them sufficient time to consider that evidence which was, moreover, provided in a non‑confidential form which rendered it unusable and (iii) that evidence could have been used to show that the coordinated list price increases alleged did not take place; this would have been relevant both to the finding of infringement and the question of implementation.
270 The Commission disputes the merits of that argument.
271 In that regard, it is appropriate, as a preliminary matter, to set out a brief summary of the relevant facts. On 28 March 2007, the Commission sent the statement of objections to a number of undertakings, including the applicants. According to recital 998 to the contested decision, the addressees of the statement of objections had access to the Commission’s file in the form of a DVD-ROM which was sent to them on 3 April 2007. According to recital 1003 to the contested decision, the Commission, by decision of 14 May 2007, extended the deadline for the addressees to respond to the statement of objections to 4 July 2007. By letter of 18 June 2007, the applicants requested that the time for responding to the statement of objections be extended by a further two months, such extension to run from the date of receipt of the documents from the Commission’s file in respect of which the applicants had requested access and which had not been made available to them. It is also apparent from recital 1003 to the contested decision (i) that by a new decision the Commission granted a second extension, until 1 August 2007, of the time for addressees to respond to the statement of objections and (ii) that a further extension of time was granted but this time on an individual basis following requests to that effect from certain undertakings. On 26 June 2007, the applicants requested access to the documents in issue in this part of the fifth plea. By letter of 3 July 2007, the Commission, inter alia, asked the applicants to specify further the documents to which they wished to have access. The applicants replied by letter of 10 July 2007. On 26 and 31 July 2007, the Commission granted the applicants access to a non-confidential version of the documents requested.
272 In those circumstances, the Court, in the first place, observes that, according to the case-law cited in paragraphs 262 to 266 above, the fact that such exculpatory documents are not in the Commission’s file is not, in itself, an infringement of the rights of the defence or the right of access to the file.
273 In the second place, since those documents were provided to the applicants, it falls to be determined whether there is an infringement of the applicants’ rights of defence because, as the applicants have pointed out, (i) access was granted on 26 and 31 July 2007 whilst the deadline for responding to the statement of objections was 1 August 2007 and (ii) the content of those documents had been partly redacted, rendering them unusable.
274 First, with regard to the time afforded the applicants to consider the documents concerned, the first point to make is that it is clear from the summary of the facts in paragraph 271 above that the Commission replied to the initial request within 7 days and provided the documents requested 16 and 21 days after the applicants had further specified their request. Having regard to the circumstances of the case and in particular to the Commission’s obligation, given the case-law cited in paragraph 262 above, to ensure that the disclosure of the documents concerned respected the business secrets of the applicants’ competitors, the Court considers, first, that the periods mentioned above are reasonable and, second, that the Commission was prompt and diligent when responding to the applicants’ request.
275 Next, it appears from recital 1003 to the contested decision that certain undertakings requested and obtained, on an individual basis, a further extension, following a second extension to 1 August 2007, of the deadline set for responding to the statement of objections. However, although the applicants had, by letter of 26 June 2007, requested access to the documents with which this part of the fifth plea is concerned, it should be noted that they did not deem it necessary to request, on an individual basis, an extension of the time they had for responding.
276 That finding is not altered by the fact that the applicants, in a letter to the Commission of 18 June 2007, requested an extension of their time for responding. That request was sent to the Commission before the letter of 26 June 2007, following which the Commission granted the applicants access to the documents which are in issue in this part of the fifth plea. Furthermore, the deadline of 4 July 2007, in respect of which the applicants requested an extension in their letter of 18 June 2007, was subsequently extended for all the addressees of the statement of objections until 1 August 2007. Accordingly, if the applicants were of the view, as were other addressees of the statement of objections, that the extension was not sufficient in the light of their individual situation, it was for them to send a further request for an extension of the new deadline. As has been stated in paragraph 275 above, the applicants made no request to that effect to the Commission.
277 In view of the foregoing considerations and having regard (i) to the fact that the applicants did not request an extension of the deadline for responding to the statement of objections, as that deadline was set, following the first two extensions, at 1 August 2007, and (ii) to the Commission’s diligence and promptness in processing their request for access to certain documents, which was made in the letter of 26 June 2007 and then in that of 10 July 2007, it must be held that the applicants have no ground for complaining that the Commission infringed their rights of defence by failing to give them sufficient time to submit their observations on the documents concerned.
278 Secondly, with regard to the redacted information in the documents concerned, it should be recalled that, according to the case-law cited in paragraph 262 above, the right of access to the file is subject to the business secrets of other undertakings. In that regard, the applicants maintain that the documents in question were public price lists that were at least three years old and that there could therefore be nothing confidential in them.
279 That argument cannot succeed. The price lists in question are regarded as ‘public’ in the sense that they are intended for existing or potential customers of bathroom fittings and fixtures manufacturers to serve as a basis for negotiations to determine transaction prices. Therefore, the fact that those price lists are described as ‘public’ does not mean that the data relating to the prices included in the lists are not confidential, as the price level set by an undertaking undoubtedly is confidential in nature, a fortiori vis-à-vis a competitor. It should also be pointed out that, under the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles [101 TFEU] and [102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7), information, such as that at issue in the present case, which is more than five years old, is no longer considered to be confidential. In the present case, the price lists in respect of which the applicants requested access were more than five years old. Accordingly, the applicants cannot complain, as a matter of principle and without any other evidence to support their complaint, that the Commission redacted information in the documents concerned on the ground that the information entailed confidential data.
280 It is apparent from the foregoing considerations that the applicants have not established that the Commission infringed their rights of defence by redacting certain parts of the documents requested.
281 In the third place and in any event, as regards the applicants’ argument that the documents requested could have been used to show that there had been no coordinated list price increase, which would have been relevant both to the finding of infringement and to the question of implementation, the Court observes that, according to the case-law cited in paragraph 266 above, there is an infringement of the rights of the defence only if it is shown that the administrative procedure would have had a different outcome if the applicants had had access to the documents in question during that procedure.
282 In the present case, reference has already been made, in paragraph 51 above, to the fact that there is no need to take account of the actual effects of a concerted practice once it is apparent that its object is to prevent, restrict or distort competition within the common market and that the fact that certain plans are not implemented does not mean that Article 101 TFEU and Article 53 of the EEA Agreement will not apply. Moreover, although the assessment of the implementation of cartel arrangements is relevant for the purposes of any reduction in the fine, it should be noted that, in the case in point, the Commission explained, inter alia in recital 1252 to the contested decision, that no increase in the variable amount of the fine had been applied on account of implementation of the cartel. Therefore, in the circumstances of this case, an analysis of the list prices would have served no purpose with regard to any reduction in the fine.
283 In view of all the foregoing considerations, the first part of the fifth plea must be rejected as unfounded.
2. Second part of the fifth plea: the Commission failed properly to detail the allegations in the statement of objections
284 The applicants submit that the Commission failed properly to explain the allegations against them in the statement of objections, particularly as regards Pozzi Ginori’s participation in the meetings, in Italy, of the cross-product association Michelangelo.
285 The Commission disputes the merits of that argument.
286 In the first place, it must be observed that, under the first paragraph of Article 21 of the Statute of the Court of Justice, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that statute, and under Article 44(1)(c) of the Rules of Procedure of the General Court, an application must, inter alia, contain a summary of the pleas in law on which the application is based. It must accordingly specify the nature of the grounds on which the action is based and, in consequence, a mere abstract statement of the grounds does not satisfy the requirements of the Statute of the Court of Justice or the Rules of Procedure of the General Court (Case T‑24/07 ThyssenKrupp Stainless v Commission [2009] ECR II‑2309, paragraph 156).
287 In the present case, as regards the complaint that the Commission failed properly to explain the allegations against the applicants in the statement of objections, the Court observes that it is couched in abstract terms and lacks precision. Accordingly, in view of the provisions and case-law referred to in paragraph 286 above, that complaint must be held inadmissible.
288 In the second place, concerning the allegations against Pozzi Ginori on account of its participation in the Michelangelo meetings, it must be noted that point 277 of the statement of objections contains a table showing the Michelangelo meetings and indicating the participants at each meeting. One column of that table deals solely with Pozzi Ginori. Furthermore, there is a short paragraph above the table in which the Commission explains that the meetings listed in the table are those at which anti-competitive behaviour took place. It is also stated that the footnote references in the table contain written evidence relating to such behaviour.
289 Although the explanations advanced by the Commission in the statement of objections with regard to Pozzi Ginori’s participation in the Michelangelo meetings are brief, they none the less enable the applicants to identify, precisely, the conduct alleged against Pozzi Ginori. Indeed, in point 277 of the statement of objections, the Commission informed the applicants of the nature of the activities identified by it, their frequency, the precise date on which they occurred and the evidence available to it.
290 It follows that, in view of the case-law cited in paragraphs 267 and 268 above, the information in the statement of objections concerning the participation of Pozzi Ginori in the Michelangelo meetings enabled the applicants to exercise their rights of defence.
291 It follows from all the foregoing considerations that the second part of the fifth plea, and therefore the fifth plea in its entirety, must be rejected as unfounded.
F – Sixth plea in law in Case T‑381/10, concerning the fact that a fine was imposed directly and individually on Sanitec Europe
292 Sanitec Europe, the applicant in Case T‑381/10, submits that the Commission wrongly imposed a fine of EUR 9 873 060 on it directly, rather than jointly and severally with its subsidiaries, since (i) the statement of objections, as is clear from point 465 thereof, was addressed to it only because of the activities of its subsidiaries and (ii) the Commission has put forward no evidence, in either the contested decision or the statement of objections, that Sanitec Europe had committed any illegal act.
293 The Commission disputes the merits of that argument.
294 In the first place, it should be noted that, contrary to what is maintained by Sanitec Europe, the statement of objections was not addressed to it solely because of the activities of its subsidiaries. In fact, point 450 of the statement of objections, which, in keeping with points 446 to 449 thereof, concerns, generally, the responsibility of parent companies, and thus, amongst others, Sanitec Europe, is worded as follows:
‘[T]he companies directly and autonomously in the present case participated in price fixing agreements and concerted practices, as did the subsidiaries. Therefore, they will each be held liable for their participation in the cartel. Additionally, the groups and parent companies as a whole bear responsibility through their ownership for the infringements of their subsidiaries …’.
295 It is clear from the terms of the statement of objections that, in general, the parent companies would be held liable directly as well as in their capacity as parent companies. That general principle, set out in point 450 of the statement of objections, was applied to Sanitec Europe’s situation in points 460 to 465 of the statement of objections. Points 460 to 464 concern the participation of Keramag, Koralle, Sphinx, Allia and Pozzi Ginori in the anti-competitive conduct. For each of those companies, the Commission expressed its intention to consider both the subsidiary concerned and Sanitec Europe to be directly liable for anti-competitive conduct. In point 465 of the statement of objections, the Commission explained that it was its intention to hold Sanitec Europe liable, as the parent company, for the conduct of its subsidiaries.
296 Sanitec Europe must therefore be considered to have been informed, in the statement of objections, that it was likely to incur liability not only directly but also jointly and severally with each of its subsidiaries.
297 In the second place, it should be noted that, in the present case, the fact that the Commission did not have any evidence that Sanitec Europe had committed an illegal act is of no relevance to the issue of the legality of the fine imposed directly on Sanitec Europe.
298 It has been held that competition law is directed at the activities of undertakings (Aalborg Portland and Others v Commission, paragraph 70 above, paragraph 59) and that the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 112).
299 The Court of Justice has also stated that the concept of an undertaking, in the same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 55 and the case-law cited).
300 When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see Akzo Nobel and Others v Commission, paragraph 299 above, paragraph 56 and the case-law cited).
301 The infringement of competition law must be imputed unequivocally to a legal person on whom fines may be imposed, and the statement of objections must be addressed to that person. It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations (see Akzo Nobel and Others v Commission, paragraph 299 above, paragraph 57 and the case-law cited).
302 It is clear from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see Akzo Nobel and Others v Commission, paragraph 299 above, paragraph 58 and the case-law cited).
303 That is the case because, in such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking. Thus, the fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 101 TFEU enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see Akzo Nobel and Others v Commission, paragraph 299 above, paragraph 59 and the case-law cited).
304 Furthermore, according to the case-law, a parent company and its subsidiary which carried on their business activities until the adoption of the contested decision can be jointly and severally penalised for their unlawful behaviour (see, to that effect, Tokai Carbon and Others v Commission, paragraph 211 above, paragraph 387). If, at the adoption of the contested decision, the parent company and the subsidiary no longer constitute a single undertaking, the Commission may not impose a fine on the subsidiary which exceeds the ceiling of 10% of its turnover. However, there is nothing to prevent the Commission from imposing on the parent company a fine which does not exceed the ceiling of 10% of its own turnover (see, to that effect, Tokai Carbon and Others v Commission, paragraph 211 above, paragraphs 392 and 393).
305 In the present case, it is clear from the table giving details of the setting of the fines, which is annexed to the defence, that the fine of EUR 9 873 060 imposed directly on Sanitec Europe corresponds to its liability for the behaviour of Pozzi Ginori, which was its subsidiary during the period covered by the infringement but which was independent at the time the contested decision was adopted. More specifically, as the Commission stated in recital 1226 to the contested decision, the basic amount of the fine imposed in respect of Pozzi Ginori’s conduct was EUR 33 000 000. It is apparent from the abovementioned table that, following application of the ceiling of 10% of the Sanitec group’s turnover, the final amount of the fine imposed for the conduct in which Pozzi Ginori was found to have been involved was set at EUR 14 393 060. Finally, the Commission allocated the burden of paying the final amount of that fine between Pozzi Ginori and Sanitec Europe. In that regard, following application of the ceiling of 10% of Pozzi Ginori’s turnover, the Commission held Pozzi Ginori jointly and severally liable with Sanitec Europe for payment of EUR 4 520 000. The Commission held Sanitec Europe liable for payment of the remaining balance, that is to say, EUR 9 873 060.
306 Sanitec Europe does not dispute that, together with Pozzi Ginori, it formed a single economic entity during the period covered by the infringement or that the two of them no longer constituted an undertaking at the date of adoption of the contested decision. It follows that the Commission was entitled, on the one hand, to hold Sanitec Europe jointly and severally liable, with Pozzi Ginori, for EUR 4 520 000 and, on the other, to hold it directly liable to pay EUR 9 873 060, without having to prove its personal involvement in the infringement.
307 In view of all the foregoing considerations, the sixth plea must be rejected as unfounded.
G – Seventh plea in law in Case T‑381/10, concerning the attribution to Sanitec Europe of Keramag’s conduct
308 Sanitec Europe submits that the Commission should not have relied on a presumption that it was liable for Keramag’s conduct merely because its indirect shareholding in Keramag was 95%. It also submits that, contrary to what is argued by the Commission in the contested decision, the presence of members of its board on Keramag’s supervisory board, the fact that reports were regularly submitted to it by its subsidiaries, the fact that it set general group targets and ensured those targets were respected, the fact that it consolidated Keramag’s turnover in its annual reports, the information on its internet site and the fact that the shares not held by it were publicly traded free float shares do not show that Sanitec Europe influenced Keramag’s strategic conduct on the market.
309 The Commission disputes the merits of that argument.
310 It should be observed that, in addition to the case‑law cited in paragraphs 298 to 303 above, it has also been held that where a parent company holds virtually all the shares in its subsidiary there are reasonable grounds for concluding that the subsidiary does not determine its conduct on the market independently and that it therefore forms, with the parent company, the same undertaking for the purposes of Article 101 TFEU (see, to that effect, Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 290 and the case-law cited).
311 Moreover, in order to ascertain whether a subsidiary determines its conduct on the market independently, account must be taken of all the relevant factors relating to the economic, organisational and legal links between the subsidiary and the parent company, which may vary from case to case and which cannot, therefore, be exhaustively listed (Akzo Nobel and Others v Commission, point 299 above, paragraph 74).
312 It is not necessary to restrict that assessment to matters relating solely to the subsidiary’s commercial policy in the strict sense, such as the distribution or pricing strategy. In particular, the presumption in question cannot be rebutted merely by showing that it is the subsidiary that manages those specific aspects of its commercial policy, without receiving instructions (see, to that effect, Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraphs 63 and 64).
313 In the present case, it must be observed that, in recital 1093 to the contested decision, the Commission presumed, generally, that Sanitec Europe exercised decisive influence on all its subsidiaries, including Keramag. In recital 1094 to the contested decision, the Commission considered that Sanitec Europe had not been able to rebut that presumption and demonstrate that its subsidiaries had acted independently. In that regard, it referred, first, to that fact that those subsidiaries regularly provided Sanitec Europe with reports containing information on sales, on a monthly basis, and average selling prices by product segment and, second, to the fact that Sanitec Europe set its subsidiaries’ financial targets.
314 However, with regard to Sanitec Europe’s joint and several liability for Keramag’s involvement, the Commission supplemented that presumption with elements tending to show that Sanitec Europe exercised decisive influence over Keramag. In that regard it stated that Sanitec Europe indirectly owned 92 to 95% of Keramag’s shares. It also demonstrated that Sanitec Europe exercised decisive influence over Keramag. To that end, in recital 1096 to the contested decision, it stated that (i) Sanitec Europe consolidated Keramag’s turnover in its annual reports, (ii) Keramag presented itself, in its own annual reports, as a company of the Sanitec group and underlined the synergies between it and other group companies and (iii) several individuals were at the same time members of the supervisory boards and executive boards of Keramag and of the Sanitec Europe entities.
315 In those circumstances, the Court considers that it is appropriate to consider straight away – without it being necessary to decide whether holding 92 to 95% of a subsidiary’s share capital amounts to holding virtually all the shares within the meaning of the case-law cited in paragraph 310 above – whether the additional elements relied on by the Commission were sufficient to establish that Sanitec Europe exercised decisive influence over Keramag.
316 In that respect, first, with regard to the regular reports provided by Keramag to Sanitec Europe, the latter maintains that there is no evidence that it was aware of Keramag’s anti-competitive conduct. However, as is clear from the case-law referred to in paragraph 303 above, the attribution to a parent company of liability for an infringement committed by its subsidiary arises from the fact that two entities constitute a single undertaking for the purposes of the EU competition rules and is not dependent on evidence of the parent company’s involvement in the infringement or on its knowledge thereof.
317 Furthermore, Sanitec Europe does not deny that such reports were regularly provided to it by Keramag. Nor does it dispute the Commission’s finding, in recital 1094 to the contested decision, that those reports contained information concerning sales by company, on a monthly basis, and average selling prices by product segments. Therefore, the Court finds that the Commission was fully entitled to affirm, in recital 1094 to the contested decision, that, although the reporting did not include product-by-product information, such reporting constituted an organisational element tending to confirm that the subsidiaries did not act autonomously on the market for the purposes of the case-law cited in paragraph 311 above.
318 Second, with regard to the financial targets set by Sanitec Europe for its subsidiaries, it should be stated that, contrary to the view taken by Sanitec Europe, the additional elements put forward by the Commission to prove Sanitec Europe’s decisive influence, elements which the latter does not substantially contest, do not demonstrate that it acted like a simple holding company. Thus, first of all, as has been mentioned in paragraph 317 above, Keramag, like Sanitec Europe’s other subsidiaries, regularly submitted reports containing precise information on its sales and prices. Next, Sanitec Europe does not deny that a number of members of its board of directors were, at the same time, members of Keramag’s supervisory board. Finally, as was stated by the Commission in recital 1096 to the contested decision, without any challenge from Sanitec Europe in that respect, Keramag’s annual reports show that the latter presented itself as a company of the Sanitec group and underlined the synergies between Keramag and other companies of the group.
319 Third, with regard to the fact that several persons were, at the same time, members of Keramag’s supervisory board and of the board of directors of Sanitec Europe, the latter maintains that the supervisory board had no right to control pricing, marketing, production decisions or any other aspect of Keramag’s business. According to Sanitec Europe, the approval of the supervisory board was required only for certain high-level transactions such as the acquisition of property, loans, the opening of subsidiaries or transactions reaching a certain amount, which means that the members of Sanitec Europe’s board of directors who were also member of Keramag’s supervisory board could not exercise decisive influence over Keramag.
320 In that regard, it should be borne in mind that it follows from the case-law cited in paragraph 312 above that the exercise of decisive influence over the commercial strategy of a subsidiary does not necessarily involve the day-to-day management of the subsidiary’s activities (see, to that effect, Case T‑197/06 FMC v Commission [2011] ECR II‑3179, paragraph 132). Sanitec Europe acknowledges itself that, although Keramag’s supervisory board does not oversee its day-to-day management, the approval of that board is required for a number of transactions which it describes as high level. Accordingly, there are no grounds for asserting that members of the board of directors of Sanitec Europe who were also members of Keramag’s supervisory board were not able to exercise decisive influence over Keramag.
321 It should also be observed that the Commission contended, without being challenged by Sanitec Europe, that, under German law, members of the management board are appointed by members of the supervisory board. It follows that Sanitec Europe, whose representatives were members of Keramag’s supervisory board, participated in the appointment of members of Keramag’s management board, which contributes to establishing, in view of the other evidence relied on by the Commission in this regard, that Sanitec Europe exercised decisive influence over Keramag.
322 In view of all the foregoing considerations, the evidence relied on by the Commission, as described in paragraphs 313 and 314 above, must be held sufficient to establish that Keramag did not act independently on the market, there being no need to rule on the argument put forward by Sanitec Europe concerning the consolidation of Keramag’s turnover in its annual report. The Commission was therefore fully entitled to consider that Sanitec Europe exercised decisive influence over Keramag and to impute Keramag’s conduct to Sanitec Europe.
323 Therefore, without it being necessary to examine Sanitec Europe’s arguments concerning the presumption as to the exercise of decisive influence on which the Commission relied, the seventh plea must be rejected as unfounded.
H – Conclusion following the examination of the claim for annulment of the contested decision
324 It follows from the examination of the first to seventh pleas, on which the claim for annulment of the contested decision is based, that the first and third parts of the third plea must be accepted, whilst the other parts of that plea and the first, second and fourth to seventh pleas must be rejected as unfounded.
325 Accordingly, as regards the consequences that should follow for the claim for annulment of the contested decision as a result of the Commission’s errors, in the first place, so far as point (6) of Article 1(1) of that decision is concerned, it must be annulled in so far as the Commission finds (i) that Allia and PCT participated in the infringement found and (ii) that Pozzi Ginori participated in that infringement between 10 March and 14 September 2001, since the latters’ involvement has been established to the requisite legal standard only in respect of the period between 14 May 1996 and 9 March 2001.
326 In the second place, so far as Article 2(7) of the contested decision is concerned, first, taking account of the conclusion reached in paragraph 325 above, points (d) and (e) of Article 2(7) should be annulled in so far as they impose a fine of EUR 4 579 610 jointly and severally on Allia and Sanitec Europe and a fine of EUR 2 529 689 jointly and severally on PCT, Allia and Sanitec Europe. As a consequence, the total amount of the fine imposed on the applicants of EUR 57 690 000, as set in Article 2(7) of the contested decision, must be annulled in so far as it exceeds EUR 50 580 701 (EUR 57 690 000 – EUR 4 579 610 – EUR 2 529 689).
327 Secondly, since the Commission established to the requisite legal standard (i) that Pozzi Ginori had participated in the infringement in Italy, from 14 May 1996 to 9 March 2001 and (ii) that the other applicants, apart from Allia and PCT, had participated in the infringement found, the Commission, in accordance with Article 23(2)(a) of Regulation No 1/2003, was correct, in Article 2(7)(a) to (c) and (f) to (h) of the contested decision, to decide to impose a fine on the companies concerned. The claim for annulment must thus be rejected in so far as it refers to points (a) to (c) and (f) to (h) of Article 2(7) of the contested decision.
328 Thirdly, in so far as points (a) and (f) of Article 2(7) of the contested decision set the amount of the fines imposed on Pozzi Ginori and Sanitec Europe and inasmuch as, by their third head of claim, the applicants request the Court, in the alternative, to reduce the amount of their fine, the Court will, in its examination of that head of claim, determine the consequences, so far as determination of that amount is concerned, of the errors made by the Commission which affect the legality of the contested decision.
329 It follows from the considerations in paragraphs 324 to 328 above that the principal claim, which seeks annulment of the contested decision in so far as it concerns the applicants, must be upheld in part.
II – Alternative head of claim: reduction of the fine imposed on the applicants
330 Having regard to the third head of claim, whereby the applicants request, in the alternative, that the Court reduce their fine, it falls to the Court to consider, in the exercise of its unlimited jurisdiction, (i) the consequences that the illegality affecting the contested decision, as noted by the Court in paragraph 245 above, have on the calculation of the fine imposed on the applicants and (ii) the other arguments whereby the applicants seek to persuade the Court to grant them a reduction in their fine.
A – The consequences which the Commission’s error has for the amount of the fine
331 In view of the illegality affecting the contested decision, as noted by the Court in paragraph 245 above, the Court has decided, by virtue of the unlimited jurisdiction conferred on it by Article 261 TFEU and Article 31 of Regulation No 1/2003, to substitute, as regards the calculation of the fine imposed on the applicant, its own appraisal for that of the Commission (see, to that effect, KME and Others v Commission, paragraph 34 above, paragraph 103 and the case-law cited, and Romana Tabacchi v Commission, paragraph 34 above, paragraph 265).
332 In that regard, it should be observed that, although the 2006 Guidelines do not prejudge the assessment of the fine by the Courts of the European Union when they adjudicate in the exercise of their unlimited jurisdiction (see, to that effect, Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others v Commission [2005] ECR II‑3033, paragraph 169), the Court deems it appropriate in the present case to draw on them in recalculating the fine, in particular because they allow all the relevant elements in the case in point to be taken into account and proportionate fines to be imposed on all the undertakings that have participated in the infringement found.
333 In the present case, first, as is apparent from the examination of the third part of the third plea, the Commission was wrong to conclude that Pozzi Ginori had participated in the infringement found from 14 May 1996 to 14 September 2001 when its participation was established to the requisite legal standard only for the period between 14 May 1996 and 9 March 2001.
334 The Court will therefore recalculate the amount of the fine set for Pozzi Ginori’s participation in the infringement in Italy between 14 May 1996 and 9 March 2001.
335 In that regard, the table in recital 1208 to the contested decision shows that the value of sales taken into account for calculating the basic amount of the fine for Pozzi Ginori in Italy is EUR 35 075 000. The basic amount represents 15% of the value of sales, as mentioned in recital 1220 to the decision, namely EUR 5 261 100.
336 It should also be noted that, in recital 1222 to the contested decision, the basic amount of the fine for Pozzi Ginori in Italy was multiplied by a figure set by the Commission in order to reflect the duration of the participation of each undertaking and each company in the cartel. In the case of Pozzi Ginori, the table in recital 1223 to the contested decision shows that the Commission set a multiplier of 5.33, corresponding to participation of five years and four months. As has been stated in paragraph 245 above, the Commission was not entitled to conclude that Pozzi Ginori’s participation lasted that long. In the present case, it can be seen from the Commission’s file that Pozzi Ginori participated in the infringement in question for a period of around four years and ten months. A multiplier of 4.83% should therefore be applied, which gives an interim amount of EUR 25 411 837.5 (EUR 5 261 250 x 4.83). An amount of 15% of the value of sales still falls to be added to that amount, a percentage equal to that applied by the Commission in recital 1225 to the contested decision for deterrence. The new basic amount which results is EUR 30 673 087.5 (EUR 25 411 837.5 + EUR 5 261 250), instead of EUR 33 000 000 as shown in the table in recital 1226 to the contested decision.
337 However, it is appropriate in the present case to apply the 10% ceiling, in accordance with Article 23(2) of Regulation No 1/2003, in order to determine the definitive amount of the fine, which will give a definitive amount of the fine imposed in respect of the conduct in which Pozzi Ginori participated of EUR 14 393 060. It follows that, even though the initial basic amount must theoretically be reduced, falling from EUR 33 000 000 to EUR 30 673 087.5, the basic amount remains higher than that of the fine which must be imposed, following application of the 10% ceiling, for Pozzi Ginori’s conduct.
338 Consequently, the duration of Pozzi Ginori’s participation in the infringement does not justify any reduction of the amount of EUR 4 520 000 imposed jointly and severally on Pozzi Ginori and Sanitec Europe in Article 2(7)(f) of the contested decision or any reduction in the amount of EUR 9 873 060 imposed, on the basis explained in paragraph 305 above, directly on Sanitec Europe in Article 2(7)(a) for Pozzi Ginori’s unlawful conduct.
B – The additional arguments raised by the applicants in support of the claim for reduction of the fine imposed
339 It should be borne in mind in this regard that, in the exercise of its unlimited jurisdiction, the Court must carry out its own assessment, taking all the circumstances of the case into account. First, that assessment must observe the general principles of EU law, such as the principle of proportionality (see, to that effect, Romana Tabacchi v Commission, paragraph 34 above, paragraphs 179 and 280) or the principle of equal treatment (Erste Group Bank and Others v Commission, paragraph 261 above, paragraph 187).
340 Second, according to the case-law, the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion and thus, with the exception of grounds involving matters of public policy which the Courts of the European Union are required to raise of their own motion, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas (see, to that effect, Chalkor v Commission, paragraph 34 above, paragraph 64).
341 In the present case, after examining whether it is necessary, on the basis of the eighth and ninth pleas, which support the third head of claim, to alter the amount of the fine by reducing it, the Court will consider whether other matters, which the applicants have raised in the present case, or other grounds involving matters of public policy are such as to justify such a reduction.
1. Eighth plea in law: the Commission’s prosecution was arbitrary and selective
342 The applicants request that the Court, exercising its unlimited jurisdiction, reduce the fines imposed since the Commission’s prosecution was arbitrary and selective. They submit that the Commission had evidence that other companies – some of which were as significant on the relevant market as the applicants – had participated in the infringement. Those companies were nevertheless not addressees of either the statement of objections or the contested decision and the Commission has failed to explain the criteria used to select those addressees. The applicants maintain in that regard that arbitrary and selective prosecution is in breach of Article 17 of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389), which relates to the right to property, and Article 41 of that Charter, which relates to the right to fair treatment, notably because no satisfactory reasons were given.
343 The Commission disputes the merits of that argument.
344 As a preliminary point, the Court notes that in the context of the eighth plea, the applicants rely on an infringement of the right to property and of the right to fair treatment, as recognised in the Charter of Fundamental Rights, inasmuch as the Commission decided, in an arbitrary and selective way and without stating reasons, to proceed solely against them and not against other undertakings which had, however, been involved in the same infringement as the infringement alleged against them. Since the eighth plea is, in essence, primarily based on the complaint that the Commission acted in an arbitrary and selective way in proceeding against the applicants, it must be interpreted to the effect that the applicants are relying on an infringement of the principle of equal treatment.
345 According to settled case-law, the principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (see Case T‑120/44 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 77 and the case-law cited). Since the unlimited jurisdiction which is conferred on the Court under Article 261 TFEU must be exercised in accordance with general principles of law, the rule mentioned above must be held to apply when, as is the case here, there is a claim before the Court for reduction of a fine.
346 In the present case, by complaining that the Commission’s prosecution of them was arbitrary and selective, the applicants submit, in essence, that they cannot be fined, since proceedings were not instigated against other undertakings which had also participated in the infringement alleged against them.
347 It need merely be observed in that regard that, even if the Commission, notwithstanding the case-law cited in paragraph 211 above, acted unlawfully in deciding not to proceed against other undertakings which had also participated in the infringement alleged against the applicants, it is apparent from the case-law cited in paragraph 345 above that the applicants cannot, by virtue of the principle of equal treatment, rely on an unlawful act of that kind committed in favour of those other undertakings. Accordingly, the eighth plea must be rejected as unfounded.
2. Ninth plea in law: the Commission over-estimated the amount of the applicants’ fine
348 The applicants request that the Court, in the exercise of its unlimited jurisdiction, reduce the fines imposed on them. They submit, first, that the Commission erred in considering that the agreement had been implemented and in failing to take the lack of implementation into account at the stage of calculating the fine. Secondly, they maintain that the Commission wrongly applied, when determining the basic amount of the fine, the same proportion of the value of sales – 15% – to both ceramics manufacturers and taps and fittings manufacturers, despite finding in the contested decision that there was significantly more evidence of an infringement in the taps and fittings sector than in the ceramics sector. Thirdly, the Commission included the Netherlands when assessing the geographical scope of the infringement for the purposes of determining the gravity of the infringement, although the infringement committed in the Netherlands was time-barred. Fourthly, the Commission should have excluded bulk sales for major building projects, such as airports, hospitals and hotels, at special prices (‘project sales)’, from the value of sales when calculating the fine, since those sales are made through a different distribution channel and concern products and product lines and rebate structures and prices and list prices which are different from those characterising individual sales to end consumers through the intermediary of wholesalers, with which the infringement found is concerned. Fifthly, the amount of the fine is manifestly disproportionate, given the nature of the infringement, which concerned list prices, and given that the Commission neither identified, nor sought to identify, the actual impact of the alleged infringement.
349 The Commission disputes the merits of the applicants’ arguments.
350 First, with regard to the implementation of the cartel, it should be observed that it is apparent from recital 1214 to the contested decision that the Commission considered, on the basis of the evidence set out in section 5.2.5 of the decision, that the cartel had been generally implemented, even though there was not sufficient evidence to consider that it had been rigorously implemented. In section 5.2.5 the Commission established that the members of the cartel monitored the implementation of price increase rates actually applied on the market. In recital 1216 to the contested decision, it held that, to the extent that the cartel might not have been fully successful, there was no need to apply an increase for aggravating circumstances owing to implementation of the cartel.
351 Furthermore, to show that the cartel was not implemented, the applicants produce three graphs. The first, drawn up on the basis of 40 products, concerns the evolution of Keramag’s list prices in 2002. The second, drawn up on the basis of 26 products, concerns the evolution of Koralle’s list prices in 2002. The third concerns the evolution of Allia’s transaction prices for its low-end products between 2003 and 2005. The Court does not consider that those graphs, which concern certain products manufactured and sold by certain companies, are capable of calling in question, generally, the evidence to which the Commission referred in section 5.2.5 of the contested decision. It should also be observed that the first graph indicates that, although the bathroom fittings and fixtures manufacturers had agreed on an increase in the indicative list prices of 5%, those prices rose by only 2.3%. This graph thus rather supports the conclusion, also drawn by the Commission, that the cartel was implemented, albeit not very rigorously. Nor can it be excluded that, in the absence of the cartel, the increase in the list prices would have been lower. The Court thus cannot accept the applicants’ argument that the cartel was not implemented.
352 Lastly, under point 29 of the 2006 Guidelines, in order to be eligible for a reduction on account of lack of implementation, the applicants should have demonstrated that they actually avoided applying the arrangements by adopting competitive conduct on the market or, at least, that they clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its operation (Case T‑26/02 Daiichi Pharmaceutical v Commission [2006] ECR II‑713, paragraph 113). In the present case, the Court finds that the applicants have not produced any evidence capable of demonstrating that they adopted such conduct.
353 Accordingly, in view of the foregoing considerations, the Court must reject the applicants’ argument that the absence of any implementation of the cartel should have been taken into account when calculating the fine.
354 Secondly, as regards the fact that the same percentage of the value of sales (15%) was applied to the ceramics manufacturers and to the taps and fittings manufacturers, the Commission held, in the contested decision, that the applicants had participated in a single and continuous infringement covering the three product sub-groups. For the reasons given in paragraphs 74 to 77 above, an infringement of that kind must be found to exist. Therefore, having regard to point 22 of the 2006 Guidelines, the basic amount of the fine must be determined by reference in particular to the gravity of the infringement taken as a whole. There is thus no ground for considering it necessary to take into account the particular intensity of the anti-competitive conduct in the case of one of those product sub‑groups as compared with the intensity specific to the other sub-groups.
355 In any event, contrary to the applicants’ contention, it does not appear from the evidence on the Commission’s file that the ceramics infringement was less intense than the taps and fittings infringement. On the contrary, as regards both ceramics and taps and fittings, there is evidence which establishes, to the requisite legal standard, that the bathroom fittings and fixtures manufacturers were involved in restrictions of competition that are among the most serious, namely coordination of annual price increases and coordination of price increases on the occasion of specific events. That is in particular the case so far as Germany is concerned, to which the applicants refer in the application to illustrate their arguments.
356 Therefore, in view of the foregoing considerations, the Court must reject the applicants’ argument that, in essence, the same percentage of the value of sales (15%) should not have been applied, when calculating the basic amount of the fine, to both the ceramics manufacturers and the taps and fittings manufacturers.
357 Thirdly, as regards the fact that the Netherlands was taken into account in setting the fine imposed on them, the Commission, as the applicants have pointed out, took the Netherlands into account when examining the geographic scope of the infringement for the purpose of assessing its gravity and setting the multiplier for ‘gravity of the infringement’ at 15% of the value of sales. However, although the finding of infringement in the Netherlands contributes to demonstrating the gravity of the infringement, it must be noted that no fine was imposed on account of Sphinx’s conduct in the Netherlands. Likewise, as is clear from recital 1208 to the contested decision, the Commission did not take into account sales made in the Netherlands when determining the value of sales of each of the addressees of the contested decision. Finally, it should be observed that points 21 to 23 of the 2006 Guidelines provide, with regard to the taking into account of the gravity of the infringement, that the proportion of the value of sales taken into account will be set at a level of up to 30%, on the basis of a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented, the point being made that price-fixing, market-sharing and output-limitation agreements are, by their very nature, among the most harmful restrictions of competition. Furthermore, under point 23 of the 2006 Guidelines, the latter restrictions justify a proportion of the value of sales being set at the higher end of the scale of 0 to 30%.
358 Since it is apparent in particular from the second and third parts of the third plea that the infringement in question, in so far as it concerned Germany and Italy, is among the most harmful restrictions of competition, the Court considers the percentage of the value of sales used by the Commission (15%) to be appropriate in view of the nature of the infringement in question. The fact that the Commission – wrongly, in the applicants’ view – took the Netherlands into account when assessing the gravity of the infringement in terms of its geographic scope does not call that conclusion into question and justify departing from the principle set out in point 23 of the 2006 Guidelines.
359 Accordingly, in view of the foregoing considerations, the Court must reject the applicants’ argument that, in essence, the infringement was less serious because the infringement in the Netherlands was time-barred.
360 Fourthly, as regards project sales, it is made very clear in recitals 1206 and 1207 to the contested decision that, after recalling that the infringement found concerned sales between manufacturers and wholesalers, the Commission, in the light of Sanitec Europe’s statements, noted that certain project sales were made via wholesalers and decided to take that type of sale into account in the value of the sales used for setting the applicants’ fine. It is also apparent from recital 1207 to the contested decision that, in the context of project sales, the applicants sometimes sold product sub-groups to the wholesalers. Accordingly, the applicants’ assertion that the project sales taken into account by the Commission were made through a different distribution channel than that for individual sales to end consumers is not supported by the facts.
361 Next, point 13 of the 2006 Guidelines provides that, in determining the basic amount of the fine, it is possible to use ‘the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates’. The Court finds, first, that, whatever products and product lines may be referred to in the applicants’ arguments and sold in the context of project sales, some of those products belonged, inter alia, to the ceramics product sub-group with which the infringement found is concerned. Second, even if the sales of products in the ceramics sub-group had a different list price depending on whether the products were sold in the context of individual sales or project sales and even if only the list prices for the former were the subject of unlawful discussions forming part of the infringement found, the fact remains that those transactions were in both cases between the applicants and the same wholesalers, the latter being familiar with the list prices used in individual sales. The Court thus takes the view that, whatever rebates may have been used in project sales, the actions alleged against the applicants in the context of individual sales were liable to influence, indirectly, the conditions for determining the prices charged in the context of project sales.
362 Consequently, in view of the foregoing considerations, the Court must reject the applicants’ argument that, since project sales were made through a different distribution channel and concerned products and product lines and rebate structures and prices and list prices different from those characterising individual sales to end consumers through the intermediary of wholesalers, with which the infringement found is concerned, those sales should be excluded from the value of sales when setting the fine.
363 Fifthly, in so far as the applicants assert that the fine is disproportionate given the nature of the infringement and its lack of effects, the Court points out that the restrictions of competition at issue are among the most serious and the fact that they were not rigorously implemented was taken into account when the basic amount of the fine was set. The Court must therefore reject the applicants’ argument that the fine is clearly disproportionate given the nature of the infringement, which concerned list prices, and given that the Commission neither identified, nor sought to identify, the actual effects of the infringements alleged.
364 It is apparent from all the foregoing considerations that the ninth plea must be rejected as unfounded.
3. The other evidence and grounds which might justify reducing the fine imposed on the applicants
365 In the exercise of its unlimited jurisdiction, the Court does not consider that any of the matters invoked by the applicants in the present case, or any ground of public policy, justifies it making use of that jurisdiction to reduce appropriately the total amount of the fine of EUR 50 580 701, to be imposed on the applicants other than Allia and PCT.
366 That is the case, in particular, as regards the Commission’s inclusion of France in its examination of the geographic scope of the infringement for the purpose of assessing its gravity and setting the basic amount of the fine applying a multiplier for ‘gravity of the infringement’ equal to 15% of the value of sales. For the same reasons as those set out in paragraphs 357 and 358 above, the Court does not consider it appropriate, in the exercise of its unlimited jurisdiction, to grant a reduction in the light of the error noted by it in paragraph 121 above concerning the applicants’ participation, in France, in the infringement found.
367 Second, taking account of all the matters before it, the Court considers that a fine totalling EUR 50 580 701 is, in view of the duration and gravity of the infringement in which the applicants other than Allia and PCT participated, a suitable penalty which punishes their anti-competitive behaviour in an appropriate and dissuasive manner.
368 In the light of all the foregoing considerations, the Court, in accordance with the findings set out in paragraphs 329 and 368 above, first, annuls in part point (6) of Article 1(1) of the contested decision on the grounds stated in paragraphs 325 and 326 above, second, annuls Article 2(7) of the contested decision in so far as it exceeds EUR 50 580 701 and, third, dismisses the action as to the remainder.
Costs
369 Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads the Court may order that the costs be shared or that each party bear its own costs.
370 As the action has been partially successful, the Court considers it fair in the circumstances of the case to order the applicants to bear three quarters of their own costs. The Commission shall thus be ordered to pay a quarter of the costs incurred by the applicants and to bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls point (6) of Article 1(1) of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 – Bathroom Fittings and Fixtures) in so far as the European Commission finds (i) that Allia SAS and Produits Céramique de Touraine SA participated in an infringement relating to a cartel on the French market for a period from 25 February 2004 to 9 November 2004 and (ii) that Pozzi Ginori SpA participated in an infringement relating to a cartel on the Italian market for a period other than that from 14 May 1996 to 9 March 2001;
2. Annuls Article 2(7) of Decision C(2010) 4185 final in so far as the total amount of the fine imposed on Keramag Keramische Werke AG, Koralle Sanitärprodukte GmbH, Koninklijke Sphinx BV, Pozzi Ginori and Sanitec Europe Oy exceeds EUR 50 580 701;
3. Dismisses the action as to the remainder;
4. Orders Keramag Keramische Werke, Koralle Sanitärprodukte, Koninklijke Sphinx, Allia, Produits Céramique de Touraine, Pozzi Ginori and Sanitec Europe to bear three quarters of their own costs;
5. Orders the Commission to pay a quarter of the costs incurred by Keramag Keramische Werke, Koralle Sanitärprodukte, Koninklijke Sphinx, Allia, Produits Céramique de Touraine, Pozzi Ginori and Sanitec Europe and to bear its own costs.
Pelikánová | Jürimäe | van der Woude |
Delivered in open court in Luxembourg on 16 September 2013.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
I – Principal head of claim: annulment of the contested decision
A – First plea in law: the Commission made errors of assessment which led it to conclude that the conduct alleged against the applicants had an anti-competitive object
B – Second plea in law: the applicants could not be held responsible for an infringement as regards taps and fittings
1. Reminder of the case-law and preliminary observations
2. Attribution to the applicants of responsibility for the infringement found
C – Third plea in law: error of law and errors of assessment on the Commission’s part with regard to the evidence concerning the applicants’ participation in France, Germany and Italy in the infringement found
1. The Commission’s alleged error of law in presuming that discussions between non-competitors had an anti-competitive object
2. The errors of assessment made by the Commission in the examination of evidence
a) The first part of the third plea, relating to the evidence concerning the infringement in France
b) The second part of the third plea, relating to the evidence concerning the infringement in Germany
The evidence concerning the anti-competitive conduct in Germany
– The meetings of the umbrella association IFS
– The evidence relating to the product-specific association FSKI
– Hansgrohe’s list
The precise and consistent nature of the evidence relied on by the Commission to prove that Keramag participated in the cartel in Germany between 7 July 2000 and 9 November 2004
c) The third part of the third plea, relating to the evidence concerning the infringement in Italy
The evidence relating to the anti-competitive conduct in Italy
– The evidence relating to the Michelangelo meetings that took place prior to 14 May 1999
– The evidence relating to the Michelangelo meetings which took place after 14 May 1999
The precise and consistent nature of the evidence relied on by the Commission to prove that Pozzi Ginori participated in the cartel in Italy from 14 May 1996 to 14 September 2001
D – Fourth plea in law: no interest in making a finding of infringement in the Netherlands
E – Fifth plea in law: infringement of the rights of the defence
1. The first part of the fifth plea: the Commission did not give the applicants proper access to its file
2. Second part of the fifth plea: the Commission failed properly to detail the allegations in the statement of objections
F – Sixth plea in law in Case T‑381/10, concerning the fact that a fine was imposed directly and individually on Sanitec Europe
G – Seventh plea in law in Case T‑381/10, concerning the attribution to Sanitec Europe of Keramag’s conduct
H – Conclusion following the examination of the claim for annulment of the contested decision
II – Alternative head of claim: reduction of the fine imposed on the applicants
A – The consequences which the Commission’s error has for the amount of the fine
B – The additional arguments raised by the applicants in support of the claim for reduction of the fine imposed
1. Eighth plea in law: the Commission’s prosecution was arbitrary and selective
2. Ninth plea in law: the Commission over-estimated the amount of the applicants’ fine
3. The other evidence and grounds which might justify reducing the fine imposed on the applicants
Costs