JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)
16 June 2011 (*)
(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Fines – Limitation period – Differentiated treatment – Duration of the infringement – Extenuating circumstances)
In Case T‑192/06,
Caffaro Srl, established in Milan (Italy), represented by A. Santa Maria and C. Biscaretti di Ruffia, avocats,
applicant,
v
European Commission, represented initially by V. Di Bucci and F. Amato, and subsequently by Di Bucci and V. Bottka, acting as Agents,
defendant,
APPLICATION for the annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate), in so far as in it the Commission imposes a joint and several fine on the applicant and SNIA SpA and, in the alternative, a reduction of the fine,
THE GENERAL COURT (Sixth Chamber, Extended Composition),
composed of V. Vadapalas (Rapporteur), acting as President, A. Dittrich and L. Truchot, Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 4 March 2010,
gives the following
Judgment
The facts
1 The applicant, Caffaro Srl, formerly Industrie Chimiche Caffaro SpA, and then Caffaro SpA, is an Italian-law company which until 1999 marketed sodium perborate (‘PBS’). At the relevant period the applicant was a wholly owned subsidiary of Caffaro SpA, which became SNIA SpA in 2000.
2 In November 2002 Degussa AG informed the Commission of the European Communities of the existence of a cartel in the hydrogen peroxide (‘HP’) and PBS markets and requested the application of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).
3 Degussa supplied to the Commission material evidence which enabled it to carry out investigations on 25 and 26 March 2003 at the premises of three undertakings.
4 On 26 January 2005 the Commission sent a statement of objections to the applicant and to the other undertakings concerned.
5 After the hearing of the undertakings concerned, the Commission adopted Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals AB, Degussa, Edison SpA, FMC Corp., FMC Foret SA, Kemira Oyj, L’Air liquide SA, Chemoxal SA, SNIA SpA, the applicant, Solvay SA, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/F/38.620 – Hydrogen peroxide and perborate) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 13 December 2006 (OJ 2006 L 353, p. 54). It was notified to the applicant by letter of 8 May 2006.
The contested decision
6 The Commission stated in the contested decision that the addressees thereof had participated in a single and continuous infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), regarding HP and the downstream product, PBS (recital 2 of the contested decision).
7 The infringement, which covered the period between 31 January 1994 and 31 December 2000, consisted mainly of competitors exchanging commercially important and confidential market and company information, limiting and controlling production as well as potential and actual production capacities, allocating market shares and customers and fixing and monitoring adherence to target prices.
8 The applicant was held liable for the infringement ‘jointly and severally’ with SNIA (recitals 407 to 412 of the contested decision).
9 To calculate the amounts of the fines, the Commission applied the methodology set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’).
10 The Commission determined the basic amounts of the fines according to the gravity and duration of the infringement (recital 452 of the contested decision), which was categorised as very serious (recital 457 of the contested decision).
11 In accordance with differentiated treatment, the applicant was placed in the fourth and last category, corresponding to a starting amount of EUR 1,875 million. In fixing that amount, the Commission also made a reduction of 25% in the light of the fact that it had not been established that Caffaro was aware or must necessarily have had knowledge of the overall scheme of the anti-competitive arrangements (recitals 460 to 462 of the contested decision).
12 Since, according to the Commission, the applicant participated in the infringement from 29 May 1997 to 31 December 1998, namely a period of one year and seven months, the starting amount of its fine was increased by 15% (recital 467 of the contested decision).
13 The Commission found that the applicant had played a minor and passive role in the infringement and, because of that extenuating circumstance, reduced the fine by 50% (recitals 476 and 477 of the contested decision).
14 Article 1(g) of the contested decision states that the applicant infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in the infringement concerned from 29 May 1997 until 13 December 1998.
15 In Article 2(d) of the contested decision, the Commission imposed on the applicant, ‘jointly and severally’ with SNIA, a fine of EUR 1.078 million.
Procedure and forms of order sought by the parties
16 By application lodged at the Registry of the Court on 18 July 2006, the applicant brought the present action.
17 The composition of the Chambers of the Court having been altered, the Judge Rapporteur was assigned to the Sixth Chamber, and, after the parties had been heard, the case was referred to the Sixth Chamber (Extended Composition).
18 By way of measures of organisation of procedure, the Court, on 22 December 2009, sent a number of written questions to the parties, who replied within the period allowed.
19 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. The parties presented oral argument and replied to questions of the Court of First Instance at the hearing on 4 March 2010.
20 In accordance with Article 32 of the Rules of Procedure of the General Court, since two members of the chamber were prevented from attending the deliberations, the deliberations of the General Court were conducted by the three Judges who signed this judgment.
21 The applicant claims that the Court should:
– annul the contested decision, in so far as the Commission imposed on it a fine jointly and severally with SNIA;
– in the alternative, reduce the amount of the fine imposed on the applicant to a symbolic amount;
– in the further alternative, reduce the amount of the fine ‘substantially’, taking account of the brief duration of the applicant’s participation in the infringement and the existence of extenuating circumstances;
– order the Commission to pay the costs.
22 The Commission contends that the Court should:
– dismiss the application;
– order the applicant to pay the costs.
Law
23 In support of the application for the annulment of the contested decision, in so far as in it the Commission imposed a joint and several fine on the applicant and SNIA, or for a reduction of the fine, the applicant relies on five pleas in law alleging errors in law and in the assessment of the facts concerning, first, the applicant’s claim that is a ‘victim and not a member of the [HP] cartel’, secondly, the allegation that the wrong reference year was chosen in connection with differentiated treatment, third, the assessment of the duration of the applicant’s participation in the infringement, fourth, the application of the limitation rule laid down in Article 25(2) of Commission Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81] and [82] of the EC Treaty (OJ 2003 L 1, p. 1) and, fifth, the assessment of the extenuating circumstances.
The applicant’s alleged status as a ‘victim and not a member of the HP cartel’
Arguments of the parties
24 The applicant claims that it is a ‘victim of the cartel’ because it left the PBS market in 1999 precisely as a result of the illegal agreements made in the HP market. It was compelled to purchase HP, the only raw material necessary for the production of PBS, from the producers involved in the cartel, who were its direct competitors in the PBS market. The increase in HP prices decided upon by the parties to the cartel drove the applicant from the market.
25 The applicant was in a situation of absolute economic dependence in relation to the producers of HP because it was unable to adjust its sales strategy on the HP market in conformity with the price increases programmed on the HP market. The Commission itself stated that ‘it [had] not been established that [the applicant] was aware or [must] necessarily have had knowledge of the overall scheme of the anti‑competitive arrangements (recital 461 of the contested decision).
26 The applicant submits that, in several earlier cases, the Commission decided not to impose fines on the parties to the unlawful agreements in so far as they had acted against their own interests or had been economically dependent on other undertakings which were parties to the agreement. In other similar cases the Commission had imposed only a ‘symbolic’ fine. Furthermore, the Commission had an express right to impose a ‘symbolic’ fine under point 5(d) of the Guidelines.
27 The Commission is bound by its previous decisions in many cases which are similar to the present case. Their common denominator is that the undertakings concerned were involved, like the applicant, in an agreement which was against their own interests or, in any case, were economically dependent on other parties to the agreement. The applicant’s situation may be regarded as similar to that of a distributor in the case of a vertical agreement with a manufacturer because in both cases there is an economically dependent undertaking.
28 In particular, the applicant’s situation was very similar to that of Compagnie Maritime Zaїroise (CMZ), which was referred to in Decision 93/82/EEC of 12 December 1992 relating to a proceeding under Article [81 EC] (IV/32.448 and IV/32.450 – Cewal, Cowac, Ukwal) and Article [82 EC] (IV/32.448 and IV/32.450 – Cewal), a company on which the Commission decided not to impose a fine because it had derived no profit whatever from the infringement which was found.
29 Having failed to take into account the same circumstances in relation to the applicant, the Commission infringed Article 81(1) EC, Articles 23(2) and (3) of Regulation No1/2003 and the Guidelines and failed in its obligation to state reasons. There was a manifest error of assessment and misuse of powers. Furthermore, the Commission confused the applicant’s status with that of Atochem SA, Kemira and Chemoxal, which were producers of HP [recital 332(b) of the contested decision].
30 In particular, the Commission failed to take into account the fact that the producers of HP had set up a system which resulted in a doubling of prices in less than one and a half years, that the applicant did not produce HP and was in a situation of total economic dependence on those undertakings, that it was not aware of the global scope of the cartel, that it had to suffer a substantial increase in the price of HP, which was the decisive factor in leaving the PBS market during the existence of the cartel, that it had derived no profit from changing its supplier because the prices of all HP producers were aligned, and that it had not been able to adapt its own sales strategy in the PBS market because it had never taken part in the meetings concerning HP. As those factors were not taken into account and no reason was given for the omission, the imposition of a fine on the applicant is illegal.
31 Finally, the fine imposed on the applicant was of no practical effect as a punishment or as a deterrent because the applicant had already left the market precisely as a result of the cartel in question, it had therefore already paid a penalty and it was not in a position to commit the infringement again.
32 The Commission contests the applicant’s arguments.
Findings of the Court
33 First of all, it must be observed that, as appears from the submissions in the application, the applicant, while referring to its alleged status as a ‘victim and not a member of the HP cartel’, does not in actual fact deny that it took part in the infringement in question or that there was a single infringement.
34 In particular, the applicant does not deny that it took part in the cartel meetings on 28 or 29 May 1997 in Seville and on 14 May 1998 at Evian-les-Bains, nor does it deny the illegal substance of those meetings as found by the Commission at recitals 162 to 164 and 226 to 229 of the contested decision, but merely denies, in the context of the third plea examined below, the duration of its participation in the infringement in question.
35 Therefore the present plea alleging that the applicant was a ‘victim and not a member of the [HP] cartel’ must be regarded as aiming in reality to call into question the legality and the level of the fine, in view of the applicant’s particular situation within the cartel.
36 In actual fact, the applicant merely sets out a number of circumstances which, according to it, should lead to no fine being imposed or, at the very least, to a ‘symbolic’ fine of EUR 1 000, as provided for in point 5(d) of the Guidelines. It pleads in particular its unique situation as a producer of PBS, a downstream product of HP, claiming that it was economically dependent on other parties to the agreement, producers of HP or of both the products in question, and that it took part in collusive arrangements against its own interests, but derived no profit whatever from them as it was compelled to leave the PBS market in middle of 1999.
37 It should be recalled that the Commission’s power to impose fines on undertakings which intentionally or negligently commit an infringement of Article 81(1) EC is one of the means conferred on the Commission in order to enable it to carry out the task of supervision entrusted to it by Union law. That task encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles (Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 105).
38 The Commission must therefore be allowed a margin of discretion when fixing the amount of fines, in order that it may channel the conduct of undertakings towards observance of the competition rules. In particular, the fact that in the past the Commission imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level if that is necessary to ensure the implementation of EU competition policy (Musique diffusion française and Others v Commission, paragraph 37 above, paragraph 109).
39 That margin of discretion is all the more necessary in connection with the right to impose in certain cases a so-called ‘symbolic’ fine which the Commission has under point 5 (d) of the Guidelines, or not to impose a fine.
40 In the present case, in order to dispute the legality of the fine, the applicant pleads first of all its situation of dependence on other parties to the cartel.
41 It must be observed that acting in a situation of economic dependence is not in itself a circumstance which may exclude the responsibility of a party to the cartel. Such a circumstance need not necessarily be taken into account when determining the amount of the fine.
42 It is also settled case-law that an undertaking which participates in meetings with an anti-competitive object, even under constraint from other participants with greater economic power, can always report the anti-competitive activities in question to the Commission rather than continue to participate in the meetings (Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 178, and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 423). Even if an undertaking is pressured into joining a cartel, it could always have informed the competent authorities instead of supporting the cartel (see, to that effect, Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 344).
43 Therefore neither the applicant’s alleged dependence on another party to the cartel nor the aggressive position purportedly adopted by that party in relation to the applicant can denote a situation capable of being taken into account by the Commission as an extenuating circumstance (Groupe Danone v Commission, paragraph 42 above, paragraph 424).
44 In particular, therefore, the Commission cannot be required to take those same circumstances into account for the purpose of deciding not to impose a fine or to impose only a symbolic fine.
45 Consequently the applicant’s argument that its economic dependence on other parties to the cartel was not taken into account cannot succeed.
46 Next, with regard to the applicant’s reference to earlier decisions of the Commission where no fine, or only a symbolic fine, was imposed, it must be observed that the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether there might be discrimination since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same (Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraphs 201 and 205, and Case C‑76/06 P Britannia Alloys and Chemicals v Commission [2007] ECR I‑4405, paragraph 60).
47 Nevertheless, in this context also the Commission must comply with the principle of equal treatment and cannot treat similar situations differently and different situations in the same way, unless such treatment is objectively justified.
48 The situations in the cases giving rise to the earlier Commission decisions relied upon by the applicant differ significantly from that in the present case.
49 First, the applicant refers to a number of decisions concerning agreements and concerted practices between a manufacturer and distributors entailing measures impeding parallel imports or exports.
50 It is clear from those decisions that, in certain cases concerning vertical restraints, the Commission took into account the fact that the distributors, which were substantially weaker from the economic viewpoint, were acting under constraint from a manufacturer and against their own economic interests in the fear that they would lose their right of exclusive distribution. The Commission therefore decided in each individual case not to hold the distributors responsible, not to fine them or to impose a very moderate fine.
51 Those considerations cannot be applied directly to cases of horizontal restraints such as the price agreement and market-sharing agreement in the present case, which are by nature very serious infringements and generally involve undertakings which have a similar economic role, those in the present case all being manufacturers of the product or products concerned.
52 In the present case, the applicant took part in a single infringement involving the HP and PBS markets. The fact that it produced only PBS, that it was required to obtain supplies of HP from other parties to the cartel and, therefore, that it was subject to tariff pressures on the upstream HP market does not show that it was constrained to act illegally on the PBS market. In any case, the applicant has produced no concrete evidence to show that the other parties to the cartel subjected it to pressure, for example, by threatening to discontinue supplies of HP if it disregarded the collusive discipline imposed on the PBS market.
53 Secondly, regarding horizontal restraints, the applicant relies on Commission Decision 94/210/EC of 29 March 1994 relating to a proceeding under Article [81 EC] and [82 EC] (Case 33.941 – HOV-SVZ/MCN (OJ 1994 L 104, pl. 34) and Commission Decision C (2004) 4030 of 20 October 2004 relating to a proceeding under Article 81(1) [EC] (Case 38.238 – Raw tobacco – Spain), a summary of which was published in the Official Journal of the European Union (OJ 2007 L 102, p. 14).
54 It must be observed that Decision 94/210 concerned railway undertakings which were parties to a ‘defensive agreement’ intended to counteract the effects of the tariff practices of a dominant undertaking, which were examined from the viewpoint of Article 82 EC in the same decision. In recitals 109 to 112 of the Decision the Commission observed that ‘generally, … a defensive agreement cannot exempt an undertaking from the imposition of fines’, before deciding that ‘taking into account … the particular features of the case, there [was] no need to impose fines for infringement of Article [81 EC]’.
55 With regard to Decision C (2004) 4030, concerning two agreements, one between processors of tobacco and the other between representatives of tobacco producers, the Commission reached the conclusion, in relation to the second agreement, that only a symbolic fine of EUR 1 000 should be imposed on each of the producers’ representatives because the national legislative framework had caused considerable uncertainty with regard to the legality of their behaviour. The Commission found that the Spanish authorities had, at the very least, encouraged the producers’ representatives to engage in price negotiations and the Ministry of Agriculture had even authorised tables of negotiated prices which had been annexed to the standard-form contract published in the Spanish Official Journal.
56 It follows from those findings that the two decisions relied on by the applicant are isolated decisions based on specific circumstances which in no way resemble those pleaded by the applicant in the present case.
57 Therefore the applicant cannot succeed in its argument alleging discrimination in the light of the Commission’s previous decisions concerning the taking into account of a situation of economic dependence vis-à-vis other parties to the agreement.
58 Secondly, the applicant pleads that it derived no profit whatever from the cartel and even suffered damage.
59 The Court has consistently held that the fact that an undertaking has derived no profit from the infringement cannot prevent it from being fined as otherwise the fine would lose its deterrent effect. It follows that the Commission is not required, for the purpose of fixing the amount of fines, to establish that the infringement secured an improper advantage for the undertakings concerned, or to take into consideration, where it applies, the fact that no profit was derived from the infringement in question (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 4881, and Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02 and T‑126/02, T‑128/02 and T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 671).
60 The absence of such an advantage cannot be regarded as an extenuating circumstance which may be taken into account when determining the amount of the fine (Case T‑52/02 SNCZ v Commission [2005] ECR II‑5005, paragraph 91, and Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 442) and does not, therefore, justify a symbolic fine.
61 In principle, the same considerations apply to the claim that the applicant took part in collusion with its competitors against its own economic interests and that it consequently suffered the negative effects of that collusion. Even if that were proved, it is likewise not a factor which would necessarily have to be taken into account as an extenuating circumstance which would justify a symbolic fine.
62 According to the case-law, an undertaking which continues to collude on prices with its competitors despite the alleged harm which it is suffering cannot be considered to have committed a less serious infringement than the other undertakings also involved in the collusion (Case T‑304/94 Europa Carton v Commission [1998] ECR II‑869, paragraph 141).
63 In that context, regarding the applicant’s submissions concerning the situation of CMZ referred to in Decision 93/82, it appears from recitals 111 and 112 of that decision, under the heading ‘Degree of participation’, that the Commission decided not to fine CMZ for reasons connected essentially with its participation in the infringement, in particular the fact that it was not genuinely active in the market concerned. The fact that it gained no advantage from the infringement was added only for the sake of completeness. Furthermore, the Court confirmed that the Commission was right not to fine the company concerned because its commercial and financial situation was different from that of the other participants in the infringement at the time (Case T‑276/04 Compagnie Maritime Belge v Commission [2008] ECR II‑1277, paragraph 96).
64 Therefore a single decision adopted in a case which has no similarities with the present case cannot support the applicant’s argument that it is necessary to take into account that fact that there was no profit from the infringement.
65 Consequently the applicant cannot validly claim that the Commission ought not to have fined the applicant or ought to have imposed a nominal fine in consideration of the fact that the applicant derived no profit from the cartel, and that it even suffered adverse effects.
66 Thirdly and lastly, concerning the applicant’s submission that the fine has no practical effect as a punishment or as a deterrent, it must be observed that the deterrent factor is assessed by taking into account a large number of factors and not merely the particular situation of the undertaking concerned (Case C‑289/04 P Showa Denko v Commission [2006] ECR I‑5859, paragraph 23, and Case T‑13/03 Nintendo and Nintendo of Europe v Commission [2009] ECR II‑947, paragraph 71).
67 In addition, that assessment does not include evaluating the likelihood that the undertaking in question will re-offend. The pursuit of deterrent effect does not concern solely the undertakings specifically targeted by the decision imposing fines. It is also necessary to prompt undertakings of similar sizes and resources to refrain from participating in similar infringements of the competition rules (Nintendo and Nintendo of Europe v Commission, paragraph 66 above, paragraphs 72 and 73).
68 In any case, as the applicant has not discontinued all business activity, the fact that it no longer operates in the market concerned in no way calls into question the need to ensure that the penalty imposed on the applicant has a deterrent effect.
69 As regards the aim of punishment, it is sufficient to observe that it would be inconsistent with that objective if the discontinuance of business activities in the market concerned resulted in the undertaking in question escaping a fine for the infringement.
70 Consequently, the fine imposed on the applicant cannot be considered to have no practical effect.
71 Finally, it must be observed that the circumstances which were put forward, considered as a whole, do not show that the Commission exceeded its discretion with regard to its power to impose a fine on the applicant.
72 The Commission took into account the factors characterising the applicant’s participation in the infringement by reducing the starting amount of its fine by 25% on the ground that it had not been shown that the applicant was aware of the overall scheme of the anti-competitive arrangements (recital 461 of the contested decision) and by reducing the fine by 50% to take account of the mitigating circumstance of its passive and minor role, its involvement in the cartel not being comparable with that of the other active members (recitals 476 and 477 of the contested decision).
73 Moreover, the applicant’s submission concerning the comparison allegedly made by the Commission between the applicant’s situation and that of the HP producers refers merely to recital 332(b) of the contested decision, which states that the fact that certain undertakings manufactured only one or the other of the products concerned does not tell against the finding that there was a single infringement. In so far as the applicant does not dispute the single nature of the infringement in question, its submission is ineffective.
74 Therefore the applicant’s argument that there was a misuse of powers must be dismissed. As shown at paragraphs 66 to 70 above, the penalty imposed on the applicant did not detract from its purpose with regard to either the aim of punishment or that of deterrence.
75 The applicant’s complaint alleging failure in respect of the obligation to state reasons must also be dismissed. This complaint is set out under the single heading of the present plea in the application, but is not developed in the applicant’s pleadings or in its oral submissions during the hearing.
76 Assuming that the applicant’s complaint is that the Commission did not comment on the applicant’s particular situation within the cartel, it must be observed that, first, the Commission set out the considerations justifying the reduction in the fine, in view of the applicant’s particular situation, in recitals 461 and 474 to 477 of the contested decision and, secondly, that the Commission was not required to comment on the imposition of a symbolic fine as that is only an option which is contemplated as an exception in point 5(d) of the Guidelines.
77 In view of the above considerations, the first plea must be dismissed as unfounded.
The reference year used in relation to differentiated treatment
Arguments of the parties
78 The applicant submits that the Commission was mistaken in using the applicant’s market share for 1998 in connection with differentiated treatment whereas, for all the other addressees of the contested decision, the Commission took into account the market shares in 1999, the last full year of the infringement. The Commission also violated the principle of equal treatment, Article 23(2) of Regulation No 1/2003 and the Guidelines.
79 The Commission should have chosen as reference year the last full year of the period of the infringement. It also follows from Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, paragraph 129, that the use of a reference year common to all the undertakings involved in the same infringement means that each undertaking is assured of being treated in the same way. In earlier decisions the Commission used a single reference year although the different undertakings had participated in the infringement at different times.
80 In choosing 1998 in relation to the applicant, the Commission sought to increase its fine. The applicant’s turnover in 1999 and the corresponding market share were significantly less than those for 1998, the global turnover for PBS having fallen from EUR 12.9 million in 1998 to EUR 9.1 million in 1999.
81 The Commission disputes the applicant’s arguments.
Findings of the Court
82 According to Section 1 A, sixth paragraph of the Guidelines, in the case of infringements involving several undertakings, it may be necessary to apply weightings to the amounts determined in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type and, consequently, to adjust the starting point for the basic amount according to the specific nature of each undertaking.
83 It has consistently been held that the division of the members of a cartel into categories for the purpose of differentiated treatment at the stage of fixing the starting amounts of fines must comply with the principle of equal treatment, according to which it is prohibited to treat similar situations differently and different situations in the same way, unless such treatment is objectively justified. Furthermore, the amount of the fine must at least be proportionate in relation to the factors taken into account in the assessment of the gravity of the infringement (Tokai Carbon and Others v Commission, paragraph 42 above, paragraph 219, and cases cited).
84 To check whether a division of the members of a cartel into categories is consistent with the principles of equal treatment and proportionality, the Court, in the course of its review of the legality of the way in which the Commission exercised its discretion in the area, must nonetheless restrict itself to reviewing whether that division is coherent and objectively justified (Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 416, and Tokai Carbon and Others v Commission, paragraph 42 above, paragraph 220).
85 In the present case, to determine the individual weight of each participant in the infringement, with the exception of the applicant, the Commission took into account the market shares resulting from the combined sales of the two products in question on the global market in 1999, the last full year in which the infringement affected both products. With regard to the applicant, the Commission took into account its market share in 1998, the last full year of its participation in the infringement (recital 460 of the contested decision).
86 In addition, the Commission reduced the starting amount of the applicant’s fine by 25% in view of the fact that it had not been established that the applicant was aware or must necessarily have had knowledge of the overall scheme of the anti‑competitive arrangements (recital 461 of the contested decision).
87 In the context of differentiated treatment, the use of a different reference year for one member of the cartel does not in itself lead to a breach of the principle of equal treatment.
88 It is true that the Court of Justice has held, first, that the use of a reference year common to all the undertakings involved in the same infringement means that each undertaking is assured of being treated in the same way as the others since the penalties are determined in a uniform manner and, secondly, that the fact that the reference year was part of the infringement period enabled the scale of the infringement committed to be assessed in the light of the economic reality as it appeared during that period (Aristrain v Commission, paragraph 79 above, paragraph 129).
89 However, contrary to the applicant’s submission, it does not follow that choosing the common year is the only means of determining the penalties in a manner consistent with the principle of equal treatment.
90 In particular, the Commission may legally take account of the fact that, for a given undertaking, the common reference year is outside the infringement period found in relation to it and is not therefore a useful indication of its individual weight at the time of the infringement. Therefore the Commission may take into account its turnover for a year other than the common reference year, provided that the division of the cartel members into categories remains consistent and objectively justified.
91 Applying analogous considerations, a different reference year should be chosen for applying the limit of 10% of turnover, provided for in Article 23(2) of Regulation No 1/2003, in relation to an undertaking which is no longer active in the market during the year chosen for the other parties to the cartel which does not therefore provide a reliable indication of its actual economic situation (see, to that effect, Britannia Alloys and Chemicals v Commission, paragraph 46 above, paragraphs 28 to 30 and 43, and Case T‑33/02 Britannia Alloys and Chemicals v Commission [2005] ECR II‑4973, paragraph 74).
92 In the present case, therefore, after finding that the applicant’s sales during the common reference year used for the other undertakings involved in the cartel was not a reliable indication of its actual economic situation during the period of the infringement, in particular because it was no longer involved in the cartel, the Commission could legally refer to its sales in 1998, the last year of its involvement in the cartel.
93 It must also be observed that that criterion was applied objectively in relation to all the cartel members, all the undertakings in question, with the exception of the applicant, which were involved in the cartel in 1999, which was the last year of their participation in the infringement affecting the two products concerned.
94 In addition, the applicant has not shown that the choice of a different reference year for it led to inconsistency in the division into categories.
95 The applicant is the only undertaking placed in the fourth and last category, with a starting amount for the fine of EUR 1.875 million (that is to say, EUR 2.5 million before the reduction applied in recital 461 of the contested decision, which is therefore significantly less than that for the third category, namely EUR 20 million. In addition, the difference between the applicant’s market shares in 1998 and 1999 is relatively small, particularly in comparison with the difference in the market shares of the different undertakings all classified in the third category, which is explained entirely by the fixing of the rate of the amounts taken into account.
96 The fact that the starting amounts for each category are not strictly proportionate to the respective market shares cannot be criticized since that is only the result of flat-rate amounts (CMA CGM and Others v Commission, paragraph 84 above, paragraph 411).
97 The difference pleaded by the applicant between its 1998 and 1999 market shares is not so great that the method used by the Commission could have led to a grossly inaccurate representation of the markets concerned (see, to that effect, Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 159, and Case T‑68/04 SGL Carbon v Commission [2008] ECR II‑2511, paragraph 70).
98 It follows from all the foregoing considerations that this plea must be dismissed as unfounded.
The assessment of the duration of the applicant’s participation in the infringement
Arguments of the parties
99 The applicant disputes the duration of its participation in the infringement as found by the Commission when calculating the amount of the fine. In that connection the applicant pleads misrepresentation of the facts, misuse of power, violation of the rights of defence, insufficient statement of reasons and violation of Article 23(2) and (3) of Regulation No 1/2003 and of the Guidelines.
100 In essence, it denies that it took part in the meeting of 26 November 1998 which was held in Brussels during a break in the meeting of the European Chemical Industry Council (CEFIC) (recital 258 of the contested decision). The applicant alleges that its representative took part only in the legal talks at the time of that meeting. In finding that the applicant was involved in illicit contacts made during the breaks in the meeting, the Commission relied on Degussa’s statement, which contains only a list of the participants of the CEFIC meeting. The Commission’s assertion that all those who participated in the CEFIC meeting took part, ‘nobody excluded’, in the illicit contacts could not be inferred from that statement. The fact that, in its reply to the statement of objections, Degussa did not ‘deny or correct’ its statements proves nothing (recital 258 of the contested decision) because Degussa’s original statement is insufficiently detailed.
101 In addition, in recital 258 of the contested decision, in order to substantiate a complaint concerning the applicant’s presence at the Brussels meeting, the Commission used information taken from Degussa’s reply to the statement of objections to which the applicant had not had access. That constitutes a violation of its rights of defence.
102 In any case, Degussa’s statement could not have been used as incriminating evidence because it is disputed by the applicant and is not corroborated by other evidence. Furthermore, the Commission implicitly accepted that the applicant was not present at the Brussels meeting because it stated that the applicant’s involvement in the infringement was limited to two meetings (recital 476 of the contested decision), which could only be those at Seville and Evian-les-Bains.
103 According to the applicant, as its presence at the Brussels meeting was not proved, the Commission ought to have regarded 14 May 1998, the date of the meeting at Evian-les-Bains, as the final date of its participation in the infringement. In actual fact, the applicant did not implement the agreements on the price of PBS fixed during the meeting at Evian-les-Bains. That is corroborated by its absence from the five following meetings in 1998, the purpose of which was to implement the agreement made at Evian-les-Bains, and by its decision, made in the course of the last months of 1998, to leave the PBS market.
104 The Commission is therefore wrong in finding that the applicant’s participation in the infringement lasted for one year and seven months, instead of one year, from 29 May 1997 to 14 May 1998, and in unduly increasing the fine on the basis of that period.
105 The Commission disputes the applicant’s arguments.
Findings of the Court
106 It appears from the file that, in the statement of objections, the Commission complained that the applicant participated in the illegal arrangements from 24 May 1996 to 30 June 1999. That period was substantially reduced in the contested decision, in which the Commission found that the applicant had participated in the infringement from 29 May 1997 to 31 December 1998 [Article 1(l) of the contested decision].
107 In the context of the present plea, the applicant denies that it participated in the infringement for part of the period in question, namely from 14 May to 31 December 1998, in so far as the inclusion of that period led to the increase in its fine.
108 First of all, as the Commission points out, the applicant asserted, in its reply to the statement of objections, that it was engaged in illegal contacts at the most in the period from 29 May 1997 to 31 December 1998.
109 On that point, it is true, the Court has held that, where there is an express, clear and precise admission by the undertaking concerned of the matters complained of by the Commission in its statement of objections, those matters must then be considered to have been proved because the undertaking is no longer in principle in a position to deny them before the Court (Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 84, and cases cited).
110 Nevertheless, in the present case, although the applicant, in replying to the Commission’s objections concerning the period from 24 May 1996 to 30 June 1999, actually stated that ‘the duration of the infringement attributable [to it] was, at most, the period [between] 29 May 1997 [and] 31 December 1998’, in the same reply the applicant denied that it took part in illicit contacts during that period, namely the meetings on 16 September and 26 November 1998.
111 Therefore, in view of the context in which the statement in question was made, the applicant cannot be considered to have admitted clearly, expressly and precisely that it participated in the infringement during the period in question.
112 This plea must therefore be regarded as admissible.
113 With regard to the merits of this plea, first, the applicant does not deny that it took part in the meeting concerning PBS at Evian-les-Bains on 14 May 1998, nor the illegal nature of the discussions in the context of that meeting, which are described in recitals 226 to 230 of the contested decision.
114 It is likewise not disputed that the applicant did not take part in four other meetings of the PBS cartel which took place between the CEFIC meetings of May and November 1998, namely two trilateral meetings concerning the closure of an Atochem site (recitals 233 and 243 of the contested decision), one ‘high-level’ multilateral meeting and a bilateral meeting between Solvay and Degussa (recitals 237 and 239 of the contested decision).
115 The applicant nevertheless denies that it took part in illicit contacts on the occasion of the CEFIC meeting of 26 November 1998 in Brussels, since it argues that its involvement in the cartel ended on the date of the meeting of 14 May 1998 at Evian-les-Bains. It submits that, with regard to those contacts, the Commission wrongly relied on Degussa’s statement alone, which is imprecise and not corroborated by other evidence.
116 On that point, it has consistently been held that 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 unless it is supported by other evidence (Groupe Danone v Commission, cited in paragraph 42 above, paragraph 285 and the case-law cited).
117 Regarding the applicant’s participation in illegal contacts on 26 November 1998, it appears from recital 257 of the contested decision that ‘bilateral and multilateral contacts between PBS producers (according to Degussa, representatives of Ausimont, [the applicant], Degussa, Atochem, FMC Foret and Solvay were present), took place during the break of the CEFIC assembly with the purpose to discuss [sic] the implementation of the PBS price increase agreed at the Evian meeting in May’.
118 The Commission also rejected the applicant’s denial of those contacts, stating as follows (recital 258 of the contested decision):
‘Degussa has clearly stated that particular representatives took part in the official PBS meeting and that during this meeting there were illicit contacts among such individuals (nobody excluded; this has not been denied or corrected by Degussa in its reply to the Statement of Objections). Atofina placed the illicit contacts in the same context without prior knowledge of Degussa’s statements, so that the Commission believes that such talks have actually taken place with the participation of the individuals quoted by Degussa.’
119 It is clear from those grounds that, in finding that the applicant took part in the illicit contacts in question, the Commission relied exclusively on the information originating from Degussa’s statement in the context of cooperation with the Commission.
120 Although the Commission also found that Degussa did not deny its assertions and that its statement coincided with certain information from Atofina, those statements are not additional evidence of the applicant’s participation. In particular, as appears from the file, Atofina’s information refers only to the meeting concerning HP which took place on 25 November 1998 and makes no reference to the applicant.
121 Degussa’s statement likewise does not refer explicitly to the applicant’s involvement in collusive contacts, but merely gives a list of those attending the official meeting of CEFIC, including a representative of the applicant, and asserts in a general way that there were illicit bilateral contacts on the fringe of the official meetings.
122 It must therefore be found that the information in Degussa’s statement does not testify for certain to the applicant’s involvement in illicit contacts in Brussels and, as it is not corroborated, it is not sufficient proof to show that the applicant took part in those contacts.
123 Consequently the Commission was wrong in finding that the applicant took part in illicit contacts on 26 November 1998.
124 With regard to the consequences of that error, it has consistently been held that in so far as certain grounds of a decision in themselves provide a sufficient legal basis for that decision, any errors in other grounds of the decision have no effect in any event on its operative part (Case T‑87/85 EDP v Commission [2005] ECR II‑3745, paragraph 144, Case T‑210/01 General Electric v Commission [2005] ECR II‑5575, paragraph 42, and, to that effect, Joined Cases C‑302/99 P and C‑308/99 P Commission and France v TF1 [2001] ECR I‑5603, paragraphs 26 to 29).
125 In the present case, as appears from recital 362 of the contested decision, the finding that the applicant participated in the infringement until 31 December 1998 is not based only on the evidence that it engaged in illicit contacts on 26 November 1998, but also on the fact that the applicant ‘adhered at least until 31 December 1998 to the collusive arrangements’, that being the date up to which the collusive arrangements decided upon at the meeting of 14 May 1998 at Evian-les-Bains applied.
126 As the applicant does not deny that it was present at that meeting, nor dispute the substance of the agreements reached at that meeting (recitals 226 to 230 of the contested decision), the finding that it took part in the arrangements decided upon at Evian-les-Bains for the period up to 31 December 1998 cannot be called into question by the applicant’s argument that the arrangements in question were not implemented, which is allegedly corroborated by the applicant’s absence from other collusive meetings in 1998 and by its decision to leave the PBS market, which was taken at the end of 1998.
127 First, the fact that an undertaking does not act on the outcome of a meeting having an anti-competitive object is not such as to relieve it of responsibility, unless it has publicly distanced itself from what was agreed in the meeting (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 85 and the case-law cited).
128 Secondly, the cartel may rightly be considered to have continued to produce its effects until the final date expressly fixed in the context of the collusive agreements, irrespective of their actual effects on the markets (see, to that effect, Bolloré and Others v Commission, paragraph 59 above, paragraph 186).
129 In the present case, therefore, as it has been shown that the applicant adhered to the arrangements decided upon at Evian-les-Bains, including the fixing of the PBS prices applicable in the second half of 1998 (recitals 229 and 362 of the contested decision), the mere fact that the applicant avoided applying them, even if that were proved, could not affect its responsibility for taking part in the cartel during the period in question.
130 The applicant’s submission that it did not attend the meetings in the second half of 1998 is not such as to prove that it distanced itself publicly from the illegal agreements concluded on 14 May 1998 at Evian-les-Bains. Furthermore, it is not disputed that the applicant remained active in the PBS market until mid-1999.
131 Therefore it must be found that the Commission’s finding that the applicant participated in the infringement until 31 December 1998 has a sufficient basis in law on the fact that the applicant adhered to the collusive arrangements applicable to the second half of 1998 which were decided upon at the meeting of 14 May 1998 at Evian-les-Bains.
132 Therefore the fact that the Commission did not prove the applicant’s involvement in the illicit contacts of 26 November 1998 does not affect the duration of the infringement found on its part.
133 With regard to the alleged failure in the obligation to state reasons, it is clear from paragraphs 125 and 129 above that the Commission, in recitals 226 to 230 and 362 of the contested decision, set out the legal reasoning and the factual evidence on which it based the finding concerning the end date of the applicant’s participation in the infringement.
134 In recitals 226 to 230 of the contested decision the Commission set out the reasoning in support of its finding that the applicant adhered to the collusive arrangements which were decided upon at the meeting of 14 May 1998 at Evian‑les-Bains. In addition, in recital 362, it stated that ‘the prices agreed at [Evian-les-Bains] were applied until 31 December 1998’ and that, ‘given that [the applicant] adhered at least until 31 December 1998 to the collusive arrangements, the Commission will thus consider 31 December 1998 as the relevant ending date for determining duration in its case’.
135 Finally, as the Commission’s finding concerning the applicant’s involvement in the illicit contacts of 26 November 1998 has been rebutted, it is unnecessary to give a ruling on the applicant’s submission that the rights of the defence concerning that finding were violated by the Commission’s reliance on undisclosed information in Degussa’s reply to the statement of objections in order to show that the applicant attended the Brussels meeting.
136 In any case, with that submission the applicant merely indicates that, in recital 258 of the contested decision, the Commission referred to the fact that Degussa’s statements concerning the illicit contacts of 6 November 1998 in Brussels were ‘not denied or corrected by Degussa in its reply to the statement of objections’. However, it does not follow from that reference that the Commission used additional evidence, not disclosed to the applicant, which could have led to a violation of its rights of defence.
137 In the light of the foregoing, this plea must be dismissed as unfounded.
The five-year limitation period
Arguments of the parties
138 The applicant submits that, by refusing to find that its participation in the infringement was time-barred, the Commission violated Article 25(2) of Regulation No 1/2003 and the applicant’s rights of defence and failed in the obligation to state reasons.
139 The applicant claims that five years elapsed between the date of cessation of its participation in the infringement, 31 December 1998, and the date of the request for information, which was sent to the applicant on 18 March 2004.
140 The applicant admits that, in accordance with Article 25(3) of Regulation No 1/2003, the limitation period is interrupted with effect from the date on which the action is notified to at least one undertaking which has participated in the infringement. However, the applicant states that, in the present case, it was compelled to ‘pay for the effects of the Commission’s inertia’. In actual fact, until March 2004 the applicant was unaware of the investigation and could not have been aware of it as it had been compelled to leave the market five years previously.
141 According to the applicant, which relies on CMA CGM and Others v Commission, paragraph 84 above (paragraph 484), the interruption of the limitation period is an exception to the five-year limitation period which must be interpreted narrowly. In the present case, the Commission had merely given a ‘formalistic interpretation’ of Article 25 of Regulation No 1/2003 and had not explained the reasons why it did not send the request for information to the applicant at the beginning of the investigation. The Commission had therefore failed to have regard to the reason underlying the interruption of the limitation period, namely the effectiveness of administrative action, and acted without regard to the need for rapidity in the procedure and to the applicant’s interests.
142 The contested decision is therefore illegal in that the Commission fined the applicant although it had left the cartel more than five years before the beginning of the investigation concerning it. This submission is supported by the Commission’s approach in relation to Chemoxal and Air Liquide (recital 448 of the contested decision) and in previous decisions, where no fines were imposed on producers who had left the cartel more than five years before the beginning of the investigation [Commission Decision 2005/566/EC of 9 December 2004 relating to a proceeding under Article [81 EC] and Article 53 of the EEA Agreement (Case No C.37.533 — Choline Chloride) (OJ 2005, L 190, p. 22)].
143 The Commission’s attitude is unlawful because, in relying on Article 25 of Regulation No 1/2003, it failed for more than one year to inform the applicant of the existence of an investigation and gave no reasons for that omission. The investigation was ultra vires, consisting in misuse of the purpose of that provision and in failure to state reasons. That procedural effect had the consequence that the contested decision was unlawful in that, in it, the Commission fined the applicant.
144 The Commission’s inertia in relation to the applicant, namely the delay in sending it the request for information, which was attributable to that institution’s negligence, means that the contested decision is illegal on the grounds of violation of the principle of legal certainty and the protection of legitimate expectations.
145 The Commission failed in its obligation to state reasons as it did not state the reasons for the delay in informing the applicant. The Commission’s delay likewise wrongly restricted the applicant’s rights of defence as it had less time in which to prepare its defence and to familiarise itself with the matters in question.
146 The Commission contests the applicant’s arguments.
Findings of the Court
147 Under Article 25(1)(b) of Regulation No 1/2003, the powers conferred on the Commission by Articles 23 and 24 is subject to a limitation period of five years.
148 Pursuant to Article 25(2) of that Regulation, the period begins to run on the day on which the infringement is committed or, in the case of continuing or repeated infringements, on the day on which it ends.
149 In accordance with Article 25(3) of the regulation, any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement interrupts the limitation period for the imposition of fines or periodic penalty payments. The limitation period is interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which has participated in the infringement and, under Article 25(4), applies for all the undertakings or associations of undertakings which have participated in the infringement.
150 The same rules follow from Articles 1 and 2 of Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1).
151 In the present case, it is clear from the examination of the third plea (see paragraph 131 above) that the Commission correctly found that the applicant had participated in the infringement until 31 December 1998.
152 It is not disputed that the first measure taken by the Commission to investigate the infringement at issue consisted in the inspections at the premises of certain undertakings on 25 and 26 March 2003 (see paragraph 3 above), that is to say, before the expiry of the five-year limitation period for the applicant, so that time was still running at the date of adoption of the contested decision.
153 It follows that the investigation of the infringement in relation to the applicant was not time-barred.
154 The applicant’s argument that five years elapsed between the date of the end of the infringement and the date of the Commission’s request for information from the applicant arises from erroneous interpretation of Article 25(3) and (4) of Regulation No 1/2003 and of Article 2(1) and (2) of Regulation No 2988/74, from which it clearly follows that the interruption of the limitation period takes effect on the day when the action is notified to at least one undertaking which participated in the infringement and applies for all the undertakings which did so.
155 These considerations, which follow expressly from the abovementioned provisions, cannot be called into question by the applicant’s argument concerning the need for strict interpretation of the rules on interruption of the limitation period, or the argument that the Commission exceeded its power by misusing the purpose of that provision and that it failed to state reasons.
156 In addition, the applicant is wrong in claiming ‘discrimination’ in relation to the fact that in previous decisions undertakings were not fined as they were in manifestly different situations from that of the applicant in so far as the five-year limitation period had expired more than five years before the first action taken by the Commission to investigate the infringement (recital 448 of the contested decision and recital 184 of Decision 2005/566).
157 Regarding the applicant’s argument based on the case-law to the effect that, in order effectively to interrupt the five-year limitation period, a request for information must be capable of being legitimately regarded as having a connection with the presumed infringement (CMA CGM and Others v Commission, paragraph 84 above, paragraphs 484 to 488), it is sufficient to note that the applicant has put forward nothing to show that the acts constituting the interruptions in question, namely the inspections of 25 and 26 March 2003 (see paragraph 3 above), were not justified from the viewpoint of the purpose of the investigation or that their sole aim was to prolong artificially the limitation period.
158 The applicant’s argument that the limitation rules were erroneously applied is therefore unfounded.
159 In the context of the present appeal, the applicant also submits that the Commission’s alleged negligence in sending the request for information to the applicant almost one year after the beginning of the investigation is a breach of the principles of legal certainty and the protection of legitimate expectations and of the applicant’s rights of defence. In particular, the applicant states that it was not informed of the investigation in good time and could not have been aware of it because the applicant was no longer present in the market in question.
160 With regard to the alleged breach of the principles of legal certainty and the protection of legitimate expectations, in so far as the applicant relies on the case‑law which states that, in the absence of any provision laying down a limitation period, the fundamental requirement of legal certainty has the effect of preventing the Commission from indefinitely delaying the exercise of its powers (Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II‑4065, paragraphs 87 to 89), it is sufficient to observe that the situation referred to by that case-law is irrelevant in the present case because the Commission’s power to impose penalties, which was exercised in relation to the applicant, is subject to a limitation period referred to in Article 25(1)(b) of Regulation No 1/2003 and in Article 1(1)(b) of Regulation No 2988/74.
161 As the limitation period was observed in the present case, the imposition of a fine on the applicant cannot violate the principles of legal certainty and the protection of legitimate expectations.
162 With regard to the alleged violation of the applicant’s rights of defence, resulting from the alleged delay in being informed of the investigation, it must be observed that, although the Commission is required to provide the undertaking concerned with certain information at the preliminary investigation stage, that obligation relates to the information given to the undertaking concerned at the stage of the first measure affecting it (see, to that effect, Case T‑99/04 AC-Treuhand v Commission [2008] ECR II‑1501, paragraphs 52 to 56).
163 In the present case, the applicant does not deny that it was adequately informed of the investigation in progress at the stage of the first measure taken in relation to it, namely in the context of the request for information of 18 March 2004.
164 However, even if the fact that the applicant was not informed of the investigation at the time of the first acts of investigation may, as such, be taken into account in examining an alleged violation of its rights of defence, it must be observed that, in any case, the applicant has not put forward any concrete evidence to support its argument that the alleged delay in informing it adversely affected its defence.
165 In the light of the whole of the above, this plea must be dismissed.
Assessment of mitigating circumstances
Arguments of the parties
166 The applicant submits that the Commission erroneously applied the Guidelines, misrepresented the facts and failed in the obligation to state reasons by refusing the applicant the benefit of mitigating circumstances for not implementing the agreements and not deriving any economic or financial advantage from the infringement.
167 In the first place, the applicant submits that it did not implement the agreements concluded at the meetings which the contested decision found to have taken place with the applicant. As no agreement was concluded at the meetings in Seville in May 1997 (recital 164 of the contested decision), it was only a question of the PBS agreements concluded at the meeting at Evian-les-Bains in May 1998 (recitals 229 and 230 of the contested decision).
168 During the period in question the applicant reduced its selling prices of PBS generally, except for a small increase in August 1998 due to an increase in the prices of the main raw material, hydrogen peroxide. Until March 1999 the applicant’s PBS prices remained largely below the price levels of May 1998. Therefore it is obvious that the price increases agreed at Evian-les-Bains were not applied by the applicant.
169 In view of the difference between the applicant’s prices and the agreed prices, and in view of its decision of autumn 1998 to leave the PBS market, the applicant could not have attempted to use the cartel for its own profit, as the Commission claims.
170 Secondly, the applicant states that its alleged membership of the cartel gave it no economic or financial advantages but, on the contrary, led to its leaving the PBS market. The Commission ought to have taken that into account as a mitigating circumstance.
171 The Commission disputes the applicant’s arguments.
Findings of the Court
172 It must be borne in mind that, when assessing the mitigating circumstances in the contested decision, the Commission reduced the applicant’s fine by 50% because of its minor and passive rule in the infringement. The Commission found that the applicant’s involvement in the cartel was not similar to that of the other active members and that its involvement in the collusive contacts was significantly more sporadic, being limited to only two meetings relating to PBS, which showed limited involvement in the overall arrangements (recitals 476 and 477 of the contested decision).
173 It does not follow from the Guidelines that the Commission must always take into account separately each of the mitigating circumstances listed in point 3 of the Guidelines. Although the circumstances listed in point 3 of the Guidelines are undoubtedly among those which may be taken into account by the Commission in a specific case, there is no automatic requirement for it to grant a further reduction under that head when an undertaking provides some indication that one of those circumstances may apply.
174 Accordingly, in the absence of a mandatory indication in the Guidelines as regards the mitigating circumstances which may be taken into account, it must be held that the Commission has retained a certain discretion when making an overall assessment of the size of any reduction in the fines on the ground of such circumstances (Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraphs 274 and 275, and Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraphs 325 and 326; see also, to that effect, judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer v Commission, not published in ECR, paragraph 204).
175 In the present case, in view of the significant reduction in the fine allowed in the contested decision, the applicant’s argument concerning other mitigating circumstances which were not accepted by the Commission, even assuming that the argument is well-founded, cannot lead to the conclusion that the reduction granted by the Commission after assessing the mitigating circumstances is inadequate.
176 Furthermore, the applicant’s submissions do not, in any case, show that there were any mitigating circumstances other than those allowed by the Commission.
177 First, regarding the claim that no profit was derived from the infringement in question, it must be observed that the Commission is not required, for the purpose of setting fines, to establish that the infringement secured an improper advantage for the undertakings concerned, or to take into consideration, where applicable, the fact that no profit was derived from the infringement in question (Bolloré and Others v Commission, paragraph 59 above, paragraph 671, and cases cited). In particular, the absence of a financial advantage cannot be regarded as a mitigating circumstance (BPB v Commission, paragraph 60 above, paragraph 442 and the case-law cited).
178 Secondly, regarding the alleged non-implementation in practice of agreements, a situation referred to at point 3, second indent, of the Guidelines, it is necessary to determine whether the applicant has put forward arguments capable of showing that, during the period in which the applicant was party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, whether it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation (Case T‑26/02 Daiichi Pharmaceutical v Commission [2006] ECR II‑713, paragraph 113, and Case T‑73/04 Carbone-Lorraine v Commission [2008] ECR II‑2661, paragraph 196).
179 The infringement attributed to the applicant arises from its participation, first, in illicit meetings in Seville on 29 May 1997, which ended without an agreement on the collusive arrangements (recitals 162 to 164 of the contested decision), and, secondly, the meeting of 14 May 1998 at Evian-les-Bains, which resulted in the offending agreements on market shares and PBS prices applying in the second half of 1998 (recitals 226 to 230 of the contested decision).
180 In essence, the applicant submits that its prices during the period in question did not undergo the increases laid down by the offending agreements of 14 May 1998. The applicant refers to the information enclosed with its reply to the statement of objections and annexed to the application and also to the additional information presented at the reply stage.
181 However, first, the information in question cannot be considered reliable evidence of the applicant’s conduct in the market. In fact, it consists of a graph and tables compiled by the applicant in 2005, without the slightest explanation of the data on the basis of which they were compiled, and unaccompanied by evidence in support. Although the applicant annexes to the reply a number of 1998 invoices for sales of the product concerned, they were produced before the Court for the first time and must therefore be rejected (see, to that effect, Case T‑330/01 Akzo Nobel v Commission [2006] ECR II‑3389, paragraph 89).
182 Secondly, as appears from recitals 226 to 230 of the contested decision, the offending agreements concluded at Evian-les-Bains related not only to prices, but also to market-sharing, and the applicant took part in drawing up the model for monitoring market shares by supplying its own data.
183 Consequently the applicant’s submissions and the evidence it has produced are not sufficient to show that it avoided implementing all the collusive arrangements by competitive conduct on the market or, at the very least, that it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation.
184 It follows from those considerations that this plea must be dismissed.
185 Consequently the appeal as a whole must be dismissed and it is unnecessary to give a ruling on the Commission’s plea that the applicant’s claim for the annulment of the contested decision on the ground that the Commission fined the applicant’s parent company SNIA is inadmissible.
Costs
186 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber, Extended Composition)
hereby:
1. Dismisses the action;
2. Orders Caffaro Srl to pay the costs.
Vadapalas | Dittrich | Truchot |
Delivered in open court in Luxembourg on 16 June 2011.
[Signatures]
Table of contents
The facts
The contested decision
Procedure and forms of order sought by the parties
Law
The applicant’s alleged status as a ‘victim and not a member of the HP cartel’
Arguments of the parties
Findings of the Court
The reference year used in relation to differentiated treatment
Arguments of the parties
Findings of the Court
The assessment of the duration of the applicant’s participation in the infringement
Arguments of the parties
Findings of the Court
The five-year limitation period
Arguments of the parties
Findings of the Court
Assessment of mitigating circumstances
Arguments of the parties
Findings of the Court
Costs