JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

12 July 2018 (*)

(Competitions — Agreements, decisions and concerted practices — European market for power cables — Decision finding an infringement of Article 101 TFEU — Single and continuous infringement — Evidence of the infringement — Duration of Involvement — Public Distancing — Calculation of the fine — Gravity of the infringement — Unlimited jurisdiction)

In Case T‑447/14,

NKT Verwaltungs GmbH, formerly nkt cables GmbH, established in Cologne (Germany),

NKT A/S, formerly NKT Holding A/S, established in Brøndby (Denmark),

represented by M. Kofmann and B. Creve, lawyers,

applicants,

v

European Commission, represented by C. Giolito, H. van Vliet and C. Vollrath, acting as Agents, and by B. Doherty, Barrister,

defendant,

APPLICATION pursuant to Article 263 TFEU primarily for annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power Cables) in so far as it concerns the applicants and, in the alternative, an application for a reduction in the amount of the fine imposed on the applicant.

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins, President, M. Kancheva (Rapporteur) and R. Barents, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 31 May 2017,

gives the following

Judgment

I.      Background to the dispute

A.      The applicants and sector concerned

1        The applicants, NKT A/S, formerly NKT Holding A/S and its wholly owned subsidiary NKT Verwaltungs GmbH, formerly nkt cables GmbH, are Danish and German companies active in the underground and submarine power cable production and supply sector (recitals 32 and 900 of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 —Power Cables) (‘the contested decision’)).

2        Submarine power cables are used under water and underground power cables are used under the ground for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage and high and extra high voltage. High voltage and extra high voltage cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of the power cable and the necessary additional equipment, installation and services. Power cables are sold throughout the world to large national grid operators and other electricity companies, principally through competitive public tenders.

B.      Administrative procedure

3        By letter of 17 October 2008, the Swedish company ABB AB provided the European Commission with a series of statements and documents concerning restrictive commercial practices in the underground and submarine power cable production and supply sector. Those statements and documents were produced in support of an application for immunity submitted in accordance with the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the Leniency Notice’).

4        Between 28 January and 3 February 2009, further to the statements made by ABB, the Commission carried out inspections at the premises of Prysmian SpA and Prysmian Cavi e Sistemi Energia Srl and at the premises of the French companies Nexans SA and Nexans France SAS.

5        On 2 February 2009, the Japanese companies, Sumitomo Electric Industries Ltd, Hitachi Cable Ltd and J-Power Systems Corp., submitted a joint application for immunity from a fine, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction in its amount, in accordance with point 27 of the Leniency Notice. They then supplied the Commission with further oral statements and documentation.

6        During the course of the investigation the Commission sent several requests for information, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) and point 12 of the Leniency Notice, to undertakings in the underground and submarine power cable production and supply sector.

7        On 30 June 2011, the Commission initiated proceedings and adopted a statement of objections against the following legal entities: Pirelli & C. SpA, Prysmian Cavi e Sistemi Energia, Prysmian, The Goldman Sachs Group Inc., Nexans, Nexans France, Sumitomo Electric Industries, Hitachi Cable, J-Power Systems, Furukawa Electric Co. Ltd, Fujikura Ltd, Viscas Corp., SWCC Showa Holdings Co. Ltd, Mitsubishi Cable Industries Ltd, Exsym Corp., ABB, ABB Ltd, Brugg Kabel AG, Kabelwerke Brugg AG Holding, Silec Cable SAS, Grupo General Cable Sistemas SA, Safran SA, General Cable Corp., LS Cable & System Ltd, Taihan Electric Wire Co. Ltd, and the applicants.

8        Between 11 and 18 June 2012, all the addressees of the statement of objections, with the exception of Furukawa Electric, participated in an administrative hearing before the Commission.

9        By judgments of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596) and Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T‑140/09, not published, EU:T:2012:597), the General Court partly annulled the inspection decisions addressed, first, to Nexans and to Nexans France, and second, to Prysmian and to Prysmian Cavi e Sistemi Energia, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the action as to the remainder. On 24 January 2013, Nexans and Nexans France brought an appeal against the first of those two judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030), the Court of Justice dismissed that appeal.

10      On 2 April 2014, the Commission adopted Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement in Case AT.39610 — Power cables (‘the contested decision’).

C.      Contested decision

1.      The infringement at issue

11      Article 1 of the contested decision states that several undertakings participated, over various periods of time, in a single and continuous infringement of Article 101 TFEU in the (extra) high voltage underground and/or submarine power cable sector. Essentially, the Commission found that, from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables had participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition in connection with (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers among themselves and thereby distorting the normal competitive process (recitals 10 to 13 and 66 of the contested decision).

12      The Commission found, in the contested decision, that the cartel had two main configurations, which formed a composite whole. More specifically, according to the Commission, the cartel comprised two parts, namely:

–        the ‘A/R configuration’, which included the European undertakings, which were generally referred to as ‘R’ members, the Japanese undertakings, referred to as ‘A’ members, and lastly the South Korean undertakings, referred to as ‘K’ members. The ‘A/R cartel configuration’ made it possible to achieve the objective of allocating territories and customers between the European, Japanese and South Korean producers. That allocation followed an agreement relating to ‘home’ territories under which the Japanese and South Korean producers would refrain from tendering for projects in the national territory of the European producers and the European producers would stay out of the Japanese and South Korean markets. In addition to that allocation, projects were allocated in the ‘export territories’, namely the rest of the world apart from the United States, which, for a time, followed a 60/40 split, meaning that 60% of the projects were reserved to the European producers and the remaining 40% were reserved to the Asian producers;

–        the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects within the European ‘home territory’ or allocated to the European producers (see Section 3.3 of the contested decision and recitals 73 and 74 in particular).

13      The Commission found that the cartel members had put in place obligations to exchange information, so as to enable the allocation agreements to be monitored (recitals 94 to 106 and 111 to 115 of the contested decision).

14      The Commission classed the cartel participants into three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group of the cartel as including the European undertakings: Nexans France, the subsidiaries of Pirelli & C., formerly Pirelli SpA, having successively participated in the cartel (‘Pirelli’), and Prysmian Cavi e Sistemi Energia; and, second, the Japanese undertakings: Furukawa Electric, Fujikura and their joint venture Viscas, as well as Sumitomo Electric industries, Hitachi Cable and their joint venture J-Power Systems (recitals 545 to 561 of the contested decision). Next, the Commission identified a group of undertakings which were not part of the core group but which nevertheless could not be regarded as merely marginal cartel participants. In this group it placed ABB, Exsym, Brugg Kabel and the entity constituted by Sagem SA, Safran and Silec Cable (recitals 562 to 575 of the contested decision). Lastly, the Commission took the view that Mitsubishi Cable Industries, SWCC Showa Holdings, LS Cable & System, Taihan Electric Wire and nkt cables were merely ‘fringe players’ in the cartel (recitals 576 to 594 of the contested decision).

2.      The liability of the applicants

15      The applicant nkt cables was found liable on the basis of its direct participation in the cartel from 3 July 2002 to 17 February 2006. NKT Holding was found liable for the infringement as the parent company of nkt cables in respect of the same period (recitals 899 to 904 of the contested decision).

3.      The fine imposed

16      Under Article 2(e) of the contested decision a fine of EUR 3 887 000 was imposed ‘jointly and severally’on the applicants.

17      For the purposes of calculating that fine, the Commission applied Article 23(2)(a) of Regulation No 1/2003 and the methodology set out in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines on setting fines’).

18      In the first place, in relation to the basic amount of the fines, after establishing the appropriate value of sales, in accordance with point 18 of the 2006 Guidelines on setting fines (recitals 963 to 994 of the contested decision), the Commission selected the proportion of the value of sales which would reflect the gravity of the infringement, in accordance with points 22 and 23 of those Guidelines. In that regard, the Commission estimated that the infringement was, by its nature, among the most harmful restrictions of competition, which justified a gravity percentage of 15%. The Commission also increased the gravity percentage by 2% for all addressees on account of their combined market share and the almost worldwide geographic scope of the cartel, which included all of the EEA. In addition, it considered, in particular, that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the ‘A/R cartel configuration’, the European undertakings had allocated cable projects among themselves in the context of the ‘European cartel configuration’. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings (recitals 997 to 1010 of the contested decision).

19      Regarding the multiplier that reflects the duration of the infringement, the Commission took, for nkt cables, a multiplier of 3.58, to reflect the period from 15 November 2002 to 26 August 2005. For nkt cables, the Commission also included in the basic amount of the fine an additional amount (entry fee) of 19% of the value of sales. That amount was thus calculated to be EUR 4 319 000 (recitals 1011 to 1016 of the contested decision).

20      In the second place, regarding adjustments to the basic amount of the fines, the Commission found there to be no aggravating circumstances that might affect the basic amount of the fines fixed for the cartel participants, with the exception of ABB. On the other hand, in so far as mitigating circumstances are concerned, the Commission decided to reflect in the fines the degree of involvement in the implementation of the cartel of each of the various undertakings. Accordingly, it reduced by 10% the basic amounts of the fines to be imposed on the ‘fringe players’, and by 5% the basic amounts of the fines to be imposed on those undertakings whose involvement had been moderate. The Commission also granted Mitsubishi Cable Industries and SWCC Showa Holdings, in respect of the period preceding the formation of Exsym, as well as Taihan Electric Wire and LS Cable & System, an additional reduction of 1% on account of the fact that they had been unaware of certain aspects of the single and continuous infringement and were not liable for them. On the other hand, no reduction in the basic amounts of the fines was granted to the undertakings belonging to the core group (recitals 1017 to 1020 of the contested decision). Applying the 2006 Guidelines on setting fines, the Commission also granted Mitsubishi Cable Industries an additional reduction of 3% on account of its effective cooperation outside the scope of the Leniency Notice (recital 1041 of the contested decision).

21      In addition, the Commission decided to grant immunity from fines to ABB and to reduce the amount of the fine imposed on J-Power Systems, on Sumitomo Electric Industries and on Hitachi Cable by 45% in order to take account of the cooperation of those undertakings.

II.    Procedure and forms of order sought

22      By application lodged at the Registry of the General Court on 16 June 2014, the applicants brought the present action.

23      On 28 September 2016, in the context of a measure of organisation for the proceedings provided for in Article 89(3)(a) and (d) of the Rules of Procedure, the General Court put questions to the Commission and requested it to produce certain documents, in particular, the non-confidential version of the replies of the other addressees of the statement of objections.

24      As a result of changes to the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was attached to the Eighth Chamber (new composition), to which the present case has, consequently, been assigned.

25      By letter of 31 October 2016, the Commission replied to the questions put to it by the General Court and produced the documents requested, with the exception of the non-confidential versions of the replies to the statement of objections by Nexans France, Nexans, The Goldman Sachs Group, Sumitomo Electric Industries, Hitachi Cable, J-Power Systems, Furukawa Electric, Fujikura, Mitsubishi Cable Industries, Exsym, Silec Cable, Brugg Kabel, Kabelwerke Brugg, Grupo General Cable Sistemas, Safran, General Cable, LS Cable & System, ABB, Pirelli & C, Prysmian, Prysmian Cavi e Sistemi Energia, SWCC Showa Holdings, Taihan Electric Wire and Viscas. The Commission specified that, despite its request in that regard, those companies had not yet prepared a non-confidential version of their reply to the statement of objections. Moreover, it requested the adoption of a measure of enquiry in view of producing an extract of an oral statement provided by ABB in the context of its application for immunity.

26      Acting upon a proposal of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral part of the procedure.

27      On 23 March 2017, in the context of the measures of organisation for the proceedings provided for in Article 89(3)(d) of the Rules of Procedure, the General Court requested the Commission to produce a document. The Commission complied with that request on 6 April 2017.

28      By order of 24 March 2017, the President of the Eighth Chamber of the General Court adopted a measure of enquiry requesting the Commission to produce an extract of an oral statement provided by ABB in the context of its application for immunity. The Commission complied with that measure of inquiry on 6 April 2017.

29      The applicants claim that the Court should:

–        principally, annul the contested decision;

–        in the alternative, partially annul the contested decision and substantially reduce the fine imposed on them;

–        order the Commission to pay the costs;

30      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

III. Law

31      In the context of the appeal, the applicants put forward claims for partial annulment of the contested decision and claims for the reduction of the fine imposed on them.

A.      The claim for annulment

32      In support of their claim for annulment, the applicants put forward five pleas in law. The first plea alleges infringement of the rights of the defence and of the general principle of equality of arms in that the Commission refused the applicants access to potentially exculpatory evidence contained in the replies given by the other addressees of the statement of objections and in the supporting documentation. The second plea alleges an incorrect definition of the territorial scope of the single and continuous infringement and wrongful application of the criterion of effects in order to justify the application of Article 101 TFEU. The third plea alleges a manifest error of assessment in that the Commission concluded that nkt cables had participated in all of the single and continuous infringement and had been aware of all of its constituent elements. The fourth plea alleges an error on the Commission’s part in connection with the duration of nkt cables’ participation in the infringement.

1.      The first plea in law, alleging breaches of the rights of defence and of the principle of equality of arms

33      The applicants complain that the Commission did not grant them access to all of the replies of the addressees of the statement of objections even though they contained potentially exculpatory evidence. By doing so, the Commission infringed their rights of defence, and in particular the principle of equality of arms, which, in accordance with the judgment of 29 June 1995, Solvay v Commission (T‑30/91, EU:T:1995:115), presupposes that, in a competition case, the knowledge which the undertaking concerned has of the file used in the proceedings is the same as that of the Commission, and which has to be observed until the decision at issue is made. The term ‘file’ as used in that judgment, and in Article 41(2)(b) of the Charter of Fundamental Rights of the European Union (‘the Charter’), refers to all the documents that are in the Commission’s case file. According to the applicants, allowing the EU institutions to limit the scope of the notion ‘file’, for example by excluding all documents that become part of the case file after a certain stage in the proceedings, without any objective explanation as to why such documents would be less relevant, unjustifiably erodes the right and the safeguard provided for in Article 41(2)(b) of the Charter. They also observe that, if, in accordance with the Court of Justice’s ruling in Solvay v Commission (C‑109/10 P, EU:C:2011:686) replies to mere requests for information are considered to contain potentially exculpatory evidence, there can be no doubt about the potential exculpatory value of other undertakings’ replies to the Commission’s statement of objections.

34      The applicants stress the importance to their rights of defence of access to the documents received by the Commission after the statement of objections. They argue that evidence collected before notification of the statement of objections will mostly have been gathered during inspections or from leniency applications and therefore tends to be incriminating, because the purpose of collecting this evidence or submitting it to the Commission is to adduce evidence of an infringement, whereas the majority of the evidence submitted to the Commission after notification of the statement of objections typically addresses and contests the allegations made in the statement of objections, and therefore tends to be exculpatory. They also state that they have been held liable for the entire single and continuous infringement, even though nkt cables’ employees participated in only a minor fraction of the conduct which constituted it. Consequently, the applicants consider that the statements and documentary evidence relating to the part of the conduct for which they are held liable by the Commission in the contested decision can only emanate from other addressees whose employees were actually involved in the conduct concerned. According to the applicants, the evidence contained in the replies of the other addressees of the statement of objections is therefore likely to be directly relevant and helpful to their defence.

35      In addition, the applicants argue that the right of access to evidence, in application of the general principle of equality of arms enshrined in Articles 41 and 47 of the Charter, should have at least the same meaning and scope of application as Article 6(1) of the Convention on the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as interpreted by the European Court of Human Rights. According to the applicants, the European Court of Human Rights held, in its judgment of 16 February 2000, Jasper v. The United Kingdom (EC:ECHR:2000:0216JUD002705295), that prosecution authorities must disclose to the defence all material evidence in the prosecution’s possession both for and against the accused, and that only such measures restricting the rights of the defence as are strictly necessary to preserve the fundamental rights of a third party or to safeguard an important public interest will be permissible under Article 6(1) ECHR. In accordance with this principle, all EEA Member States recognise, as a general principle of law, that the accused’s right of access in criminal proceedings extends, in principle, to the entire case file, and not merely to the results of a prosecuting authority’s preliminary inquiry. Similarly, the applicants allege that the practice of national competition authorities in almost all Member States is to allow access to non-confidential versions of materials that have been submitted after notification of a statement of objections, in accordance with their constitutional traditions or general principles of sound administration. Only in three Member States do the competition authorities generally refuse access to evidence post-dating the statement of objections, apparently doing so on the basis of the Commission’s position on this issue.

36      The applicants maintain that, in the circumstances, they cannot be criticised for being unable to demonstrate the probative value of evidence post-dating the statement of objections if they do not know the precise content of that evidence, and they ask the Court to adopt a measure of organisation of the procedure or a measure of inquiry ordering the Commission to grant them access to the entire case file so that they may show that they could have used evidence post-dating the statement of objections in their defence and might thus have influenced the findings made in the contested decision.

37      The applicants argue that, in any event, evidence post-dating the statement of objections to which they have been denied access will, on the balance of probabilities, contain exculpatory evidence, that is to say, evidence which is objectively linked to the Commission’s findings against them in the contested decision, and which would have been helpful to their defence.

38      The evidence in question includes, first, information about the conduct relating to high voltage submarine power cable projects that could have been helpful in the context of the finding that nkt cables was aware of the arrangements relating to those projects, with other evidence having already been adduced to that effect. According to the applicants, the information provided by the actual participants in that conduct, such as information concerning the separate nature of the arrangements for high voltage submarine and underground power cable projects, might contain exculpatory material with regard to them.

39      Second, it includes information about the ‘home territory’ agreement obtained from the producers that arrived at that agreement, that might have been helpful in the context of the finding that they were part of that agreement, which appears to have been reached long before the beginning of its alleged participation in the single and continuous infringement and the geographic scope of which was not precisely defined, as the Commission acknowledged in recital 454 of the contested decision. According to the applicants, the information provided by the major producers that actually concluded and developed that agreement could contain exculpatory evidence.

40      Third, it also includes the content of discussions at ‘cable seminars’ which nkt cables attended. Annex I to the contested decision repeatedly characterises the projects referred to in the notes taken by Mr J., an employee of Nexans France, as having been allocated to nkt cables or to other cartel participants. The applicants assert that they demonstrated in their reply to the statement of objections that a number of projects had either already been won at the time the notes were taken or were mentioned merely as forthcoming projects not allocated to any particular entity. According to the applicants, to the extent that other addressees of that notice have adduced similar information and evidence concerning projects about which they themselves were not able to find any information, that information and that evidence is necessarily exculpatory in nature.

41      Fourth, it includes the interpretation of emails from other addressees which mention nkt cables. According to the applicants, recital 493(b) of the contested decision mentions certain communications naming nkt cables as proof that it allocated projects. They assert that they disputed that interpretation, and other parties might have made similar arguments, possibly supported by further evidence.

42      Fifth, it includes information relating to consortium agreements. According to the applicants, the Commission treated a proposal from nkt cables to Nexans France to form a consortium as proof of nkt cables’ participation in the infringement, and evidence provided by Nexans France might clarify this particular incident, since it is clear from recital 689 of the contested decision that Nexans France’s reply to the statement of objections referred to lawful consortium agreements. The applicants maintain that all the abovementioned information might constitute evidence, and not merely arguments, as the Commission maintains.

43      The applicants point out that the fact that the Commission managed to identify exculpatory information in those documents, as is clear from its defence, confirms their usefulness.

44      The Commission disputes the applicants’ arguments.

45      In that regard, in the first place, it must be held that the applicants cannot succeed in arguing that the Commission was bound to give them access to the replies of the other addressees of the statement of objections since it was not for the Commission alone to decide the relevance of the documents gathered in the context of the applicant’s defence proceedings.

46      It should be borne in mind that, under the first sub-paragraph of Article 27 of Regulation 1/2003, before taking decisions as provided for in Articles 7, 8, 23 and Article 24(2) of that regulation, the Commission is to give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity of being heard on the matters to which the Commission has taken objection. That same provision states that ‘the Commission shall base its decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings’.

47      Thus, access to the file in competition cases is intended in particular to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission’s file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections (judgment of 2 October 2003, Corus UK v Commission, C‑199/99 P, EU:C:2003:531, paragraph 125). Access to the file is therefore one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard can be exercised effectively.

48      In accordance with the case-law, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant to its defence. Those documents comprise both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (see judgment of 7 January 2004, Aalborg Portland and Others v Commission, 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, EU:C:2004:6, paragraph 68 and the case-law cited).

49      However, it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, the other parties’ replies to the statement of objections are not, in principle, included in the documents of the investigation file that the parties may consult (judgments of 30 September 2009, Hoechst v Commission, T‑161/05, EU:T:2009:366, paragraph 163; of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 42; and of 12 July 2011, Mitsubishi Electric v Commission, T‑133/07, EU:T:2011:345, paragraph 41).

50      Nevertheless, if the Commission wishes to rely on a passage in a reply to the statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 101(1) TFEU, or under Article 53(1) of the EEA Agreement, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes evidence against the various parties alleged to have participated in the infringement (judgments of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 43, and of 12 July 2011, Mitsubishi Electric v Commission, T‑133/07, EU:T:2011:345, paragraph 42).

51      By analogy, if a passage in a reply to a statement of objections or on a document annexed to such a reply may be relevant for the defence of an undertaking in that it enables that company to invoke evidence which is not consistent with the inferences made at that stage by the Commission, it constitutes exculpatory evidence. In that case, the undertaking concerned must be authorised to examine the passage or the document concerned and to give its view thereon (judgments of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 44, and of 12 July 2011, Mitsubishi Electric v Commission, T‑133/07, EU:T:2011:345, paragraph 43).

52      Paragraph 8 of the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 101 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) states, moreover, that the ‘Commission file’ in a competition investigation consists of all documents which have been obtained, produced or assembled by the Commission Directorate-General for Competition during the investigation. Point 27 of that notice states the following:

‘Access to the file will be granted upon request and, normally, on a single occasion, following the notification of the Commission’s objections to the parties, in order to ensure the principle of equality of arms and to protect their rights of defence. As a general rule, therefore, no access will be granted to other parties’ replies to the Commission’s objections.

A party will, however, be granted access to documents received after notification of the objections at later stages of the administrative procedure, where such documents may constitute new evidence — whether of an incriminating or of an exculpatory nature — pertaining to the allegations concerning that party in the Commission’s statement of objections. This is particularly the case where the Commission intends to rely on new evidence.’

53      It follows that, contrary to what the applicants maintain, it is for the Commission to carry out an initial assessment of the potentially exculpatory nature of the information contained in the documents received after the statement of objections, when an undertaking concerned requests access to those documents.

54      In that regard, the applicants may not rely on the case-law that it is not for the Commission alone, which notifies any objections and adopts the decision imposing a penalty, to determine the documents of use in the defence of the undertaking concerned, in so far as that argument, relating to documents within the file compiled by the Commission, cannot apply to the replies given by other parties concerned to the statement of objections (judgment of 27 September 2012, Shell Petroleum And Others v Commission, T‑343/06, EU:T:2012:478, paragraph 89).

55      In the second place, it must be held that that applicants also cannot succeed in arguing that, essentially, the Commission breached their rights of defence by refusing them, on the basis of an erroneous assessment of the relevance to their defence of information contained in the replies of other addressees of the statement of objections, access to the non-confidential version of those replies.

56      It should be borne in mind that, if a document in the Commission’s possession which may be categorised — since it is capable of exonerating an undertaking which is accused of having participated in a cartel — as exculpatory evidence is not communicated to that undertaking, the latter’s rights of the defence are infringed if it shows that the document at issue could have been useful for its defence (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 367).

57      Such evidence may be furnished by showing that the non-disclosure was capable of influencing, to the detriment of the undertaking at issue, the course of the proceedings and the content of the Commission’s decision, or that it could have harmed or rendered more difficult the defence of that undertaking’s interests during the administrative procedure (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 368).

58      The possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might — in the light of that evidence — have had a significance which ought not to have been disregarded (judgment of 14 March 2013, Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2013:129, paragraph 688).

59      In that regard, applicants who have raised a plea alleging infringement of their rights of defence cannot be required to set out in their application detailed arguments or a consistent body of evidence to show that the outcome of the administrative procedure might have been different if they had had access to certain documents which were in fact never disclosed to them. Such an approach would in effect amount to requiring a probatio diabolica (judgment of 14 March 2013, Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2013:129, paragraph 689).

60      It is nevertheless for the applicants to adduce prima facie evidence that the undisclosed documents would be useful to their defence (judgment of 14 March 2013, Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2013:129, paragraph 690).

61      It is therefore necessary to ascertain in the present case whether the arguments put forward by the applicants show prima facie that the replies of the other addressees of the statement of objections would be useful to their defence.

62      In that regard, first, regarding the applicants’ argument that the replies of the other addressees of the statement of objections could contain information as to the separate nature of the agreements on submarine and underground power cable projects, it should be noted that, even if that were the case, such evidence would not in itself be capable of demonstrating that the applicants were not aware of those agreements.

63      Second, regarding the applicants’ argument that the information provided by the major producers that concluded the ‘home territory’ agreement in their replies to the statement of objections contained exculpatory evidence, it should be noted that that argument does not allow it to be understood why the major producers would have confirmed in their responses that the applicants, in particular, were not aware of that agreement.

64      Third, the applicants maintain that the replies and the evidence provided by the other addressees of the statement of objections would have allowed them to demonstrate that the projects mentioned in Annex I to the contested decision were, according to the notes by Mr J., allocated to the applicants or to other participants, already won at the time the notes were taken, or were mentioned merely as forthcoming projects not allocated to any particular entity. However, first, it should be noted that the applicants do not specify what the projects in question are. Second, even if the replies by the other addressees of the statement of objections contained information and evidence concerning the projects mentioned in the contested decision, it should be noted that those replies might have been useful for the applicants’ defence in the context of the present appeal for disputing the conclusions of that decision. However, the usefulness of such information and evidence for the applicants’ defence in the context of the administrative procedure must be assessed only with regard to the content of the statement of objections. It must be stated that the applicants do not indicate how the information and evidence in question would have allowed them to call into question the conclusions reached by the Commission as to the allocation of those projects in the statement of objections.

65      Fourth, regarding the applicants’ argument that the other addressees of the statement of objections could have presented similar arguments to theirs and additional evidence concerning the interpretation of certain emails referred to in recital 493(b) of the contested decision, it should be borne in mind that, in accordance with the case-law, the mere fact that other undertakings made the same arguments as the undertaking concerned and that, as the case may be, they employed more resources for their defence, does not suffice to find that those arguments constitute exculpatory evidence (judgment of 12 July 2011, Mitsubishi Electric v Commission, T‑133/07, EU:T:2011:345, paragraph 44).

66      Fifth, the applicants maintain that the reply by Nexans France to the statement of objections contained exculpatory information concerning the proposition made to it by the applicants to form a consortium, since the Commission admitted, in recital 689 of the contested decision, that the reply by Nexans France to the statement of objections mentioned lawful consortium agreements. In that regard, it should be noted that the Commission considered in recital 297 of that decision, on the basis of the notes of Mr J. of Nexans France, that the applicants’ proposition to create a consortium to participate in a power cables project was within the context of the cartel due to the vocabulary used that referred to a floor price. However, the Commission merely indicated, in recital 689 of that decision that, if the examples provided by Nexans France in its response to the statement of objections fell within the exemption referred to in Article 101(3) TFEU, Nexans France had not provided any argument allowing a finding that the conduct described in the same decision fell within that exemption. It cannot therefore be inferred, as the applicants imply, that the reply by Nexans France to the statement concerned would have allowed it to demonstrate that its proposition for a consortium fell within the exemption provided for by Article 101(3) TFEU, and could, consequently, have been useful to their defence.

67      In the light of the foregoing considerations, the applicants’ argument made at the hearing that a reading of the non-confidential versions of the replies of the other addressees of the statement of objections, produced by the Commission in response to the measure of organisation of the General Court proceedings, confirmed that those replies contained exculpatory evidence and that it is highly likely that the same goes for the replies of the other addressees of that statement, for which the Commission was unable to produce non-confidential versions, should also be rejected as ineffective.

68      Therefore, it must be held that the applicants’ arguments are incapable of providing prima facie evidence that the replies of the other addressees of the statement of objections that were not communicated to them, are useful to their defence.

69      The first plea in law must, therefore, be rejected as unfounded.

2.      The second plea in law, alleging an incorrect definition of the territorial scope of the single and continuous infringement and erroneous application of the criterion of effects in order to justify the application of Article 101 TFEU

70      The applicants maintain that the Commission abusively broadened the territorial scope of the single and continuous infringement by including in it sales made outside of the EEA and conduct relating to projects outside the EEA. 

71      First, the applicants complain that the Commission incorrectly defined the territorial scope of the single and continuous infringement by suggesting, at recital 466 of the contested decision, contrary to the case-law, that an infringement of Article 101(1) TFEU and of Article 53(1) of the EEA Agreement might also encompass practices that are not implemented in the EEA or that do not have effects in the EEA. 

72      Second, the applicants maintain that the territorial applicability of Article 101(1) TFEU and of Article 53(1) of the EEA Agreement to sales made outside the EEA and to conduct relating to projects outside the EEA could not be based on direct, foreseeable and substantial effects in the EEA that resulted from that conduct, as the Commission indicated in the contested decision, in so far as, first, the doctrine of qualified effects did not form part of EU law at the time that that conduct took place and, next, that the Commission has not demonstrated that that conduct had such effects.

73      Third, the applicants maintain that the Commission applied the qualified effects test to sales made outside the EEA, in breach of their rights of the defence and of its obligation to state reasons.

74      According to the applicants, while the Commission had justified its jurisdiction in the statement of objections on the basis of the implementation of various items of conduct established in the EEA, it justified its jurisdiction to sanction certain conduct on the basis of its effects in the EEA for the first time in the contested decision. They thus submit that they were deprived of the possibility of stating their views effectively in the context of the administrative procedure on the effects of that conduct in the EEA, in breach of their rights of defence and the Commission’s obligation to state reasons.

75      The applicants also argue that the reasoning of the contested decision is contradictory in that, first, the Commission claims to respect the territorial limits of application of Article 101(1) TFEU and Article 53 of the EEA Agreement in relying on the doctrine of implementation and the doctrine of qualified effects at recitals 463 and 464 of that decision, and second, it finds that all allocations of projects in the ‘export territories’ were part of the single and continuous infringement at recitals 493 and 620 of the contested decision, without demonstrating how that conduct fulfilled the implementation criterion or the effects criterion. In particular, the applicants submit that the Commission does not explain to what extent the discussions relating to projects outside the EEA in which they participated fulfilled either of those two criteria. By doing so, the Commission also breached its duty to state reasons.

76      The Commission disputes the applicants’ arguments.

77      In that regard, first, concerning the applicants’ argument that the Commission found that the infringement of Article 101 TFEU and of Article 53 of the EEA Agreement could encompass practices that are not implemented in the EEA or that do not have effects in the EEA, and therefore, do not fall within the territorial scope of those provisions, it should be noted that that argument has no factual basis. In recital 466 of the contested decision, the Commission indicated that its territorial jurisdiction, including its jurisdiction to penalise the infringement, was limited to the parts of the infringement that were implemented or that produced effects in the EEA. Admittedly, as the applicants state, concerted practices that do not fall within the territorial scope of Article 101 TFEU and of Article 53 of the EEA agreement cannot, by definition, constitute infringements of those provisions. However, it must be held that, as is apparent from the combined reading of recitals 466 and 469 of the contested decision, in the present case the Commission explained that its jurisdiction to penalise the concerted practices described in that decision was limited to those that were implemented or that produced effects in the EEA. 

78      Next, regarding the applicants’ argument that the Commission could not base its jurisdiction to penalise the conduct relating to projects outside the EEA on the effects that it produced in the EEA, it should be borne in mind that the EU competition rule set out in Article 101 TFEU prohibits agreements and practices which have as their object or effect the prevention, restriction or distortion of competition ‘within the internal market’.

79      Moreover, it should be noted that the conditions for territorial application of Article 101 TFEU can be satisfied in two scenarios.

80      First, application of Article 101 TFEU is justified when the practices that it covers are implemented on the territory of the internal market, independent of where those practices were formed. If the applicability of prohibitions laid down under competition law were made to depend on the place where the agreement, decision or concerted practice was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions (judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16).

81      Second, as the Court of Justice has already held, the application of Article 101 TFEU is equally justified when it is foreseeable that the practices that it covers produce a direct and substantial effect in the internal market (judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11). In that regard, it must be pointed out that this approach pursues the same objective as that which relies on the implementation of an agreement on the EU territory, namely preventing conduct which, while not adopted within the EU, has anticompetitive effects liable to have an impact on the EU market.

82      It should also be noted that the conditions for applying Article 101 TFEU, mentioned respectively in paragraphs 80 and 81 above, constitute alternative and not cumulative approaches to establishing the Commission’s jurisdiction to find and sanction an infringement of that provision.

83      In the contested decision, the Commission submitted that the condition that the cartel be implemented in the EEA, and the condition relating to the qualified effects produced by that cartel in the EEA, were both fulfilled in the present case (recitals 467 to 469 of the contested decision).

84      The applicants maintain that, since certain practices of the cartel concerned sales outside the EEA, the Commission could not justify the territorial applicability of Article 101 TFEU to those practices on the grounds of their implementation in the EEA or the effects produced by them in the EEA. 

85      Such an argument cannot succeed.

86      Regarding the implementation of practices of the cartel concerning sales outside the EEA, it should be noted that the agreement on ‘export territories’, by application of which the European and Asian producers allocated themselves projects in those territories, was implemented on the EEA territory. Thus, it is apparent from recital 79 of the contested decision and from recital 247 thereof, to which recital 468 of the contested decision refers, that Greece was not part of the ‘European home territory’ within the meaning of the ‘home territory’ agreement and that the projects located in Greece were part of the allocation of projects observing the ‘60/40 quota’ pursuant to the agreement on ‘export territories’. Moreover, it is also apparent from recitals 81 and 82 of the contested decision that the A members of the cartel considered that the projects linking an EU Member State with a third state had to be part of the 60% quota allocated to the R members of the cartel, such as the project linking Spain and Morocco cited at recital 232 of the contested decision.

87      On the other hand, it should also be noted that the conduct of the European undertakings, consisting, pursuant to the ‘home territory’ agreement, of not competing for projects on the ‘home territory’ of the Asian undertakings, was not, by definition, implemented on the EEA territory.

88      Nonetheless, contrary to what the applicants maintain, it does not follow that, by including that conduct in the single and continuous infringement, the Commission illegally broadened the geographic scope of that infringement.

89      As is apparent from the case-law cited at paragraph 81 above, the Commission was able apply Article 101 TFEU to the single and continuous infringement, as it was found in the contested decision, on the basis of the foreseeable, direct and substantial effects of that infringement in the internal market.

90      In that regard, it must be pointed out, that Article 101 TFEU is capable of being applied to practices and agreements that serve a common anticompetitive objective, where it is foreseeable that, taken together, those practices and agreements have direct and substantial effects in the internal market. Undertakings cannot be allowed to escape application of EU competition rules by combining several practices pursuing the same objective, when each practice viewed in isolation is not liable to produce a direct and substantial effect in the European Union market but the practices, taken together, are liable to produce such an effect.

91      It should be noted that the single objective of the cartel consisted of restricting competition for extra high voltage underground and submarine power cable projects in the specific territories by agreeing to allocate markets and customers and thus distort the normal competitive process.

92      It follows that, contrary to what the applicants maintain, it is with regard to the effects of the various practices described in recital 493 of the contested decision, taken together, including those relating to sales outside the EEA, that it had to be assessed whether Article 101 TFEU was applicable in the present case.

93      It must be observed that the Commission did not err in finding at recital 469 of the contested decision that the effects on competition in the EEA, including the internal market, of the practices and agreements in which the cartel members were involved were foreseeable, direct and substantial.

94      In that regard, it suffices to take account of the probable effects of conduct on competition in order for the foreseeability criterion to be satisfied.

95      Regarding the direct nature of the practices in question on the EU territory, it should be noted that they must have had a direct influence on the supply of high and extra high voltage power cables in that territory, since such was the aim of the various meetings and contacts between the cartel participants (recital 66 of the contested decision). Moreover, the allocation carried out between the cartel members, both directly inside and outside that territory, had foreseeable effects on competition within that territory, as the Commission rightly noted.

96      As to the substantial nature of the effects in the EU, the Court notes the number and size of the producers that participated in the cartel, which represented almost all of the market, as well as the large range of goods affected by the agreements and the gravity of the practices in question. The considerable duration of the single and continuous infringement, which continued for 10 years, should also be noted. All those elements, assessed together, contribute to demonstrating the substantial nature of the effects of the practices in question on the EU territory (recitals 66, 492, 493 and 620 of the contested decision).

97      Therefore, it must be concluded that the single and continuous infringement defined by the Commission in the contested decision fell within the scope of Article 101(1) TFEU.

98      Lastly, the Court rejects the applicants’ arguments that the Commission, in applying the doctrine of qualified effects in the contested decision, breached their rights of defence and its obligation to state reasons.

99      First, the applicants’ argument that the Commission justified, for the first time in the contested decision, its competence to penalise certain conduct on the basis of its effects in the EEA, in particular, the conduct concerning sales outside the EEA, cannot succeed since those practices were already mentioned in the statement of objections.

100    Moreover, it should be borne in mind that although the statement of objections must clearly set out all the essential matters on which the Commission relies at that stage of the proceedings, it may be done summarily and the contested decision is not necessarily required to be a replica of the statement of objections since the statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature (see judgment of 27 September 2012, Total Nederland v Commission, T‑348/06, not published, EU:T:2012:481, paragraph 65 and the case-law cited).

101    It should also be borne in mind that where the Commission in its statement of objections expressly indicates that it will examine whether it should impose fines on the undertakings concerned and indicates the main legal and factual criteria capable of attracting a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. By doing so, the Commission grants the undertakings the necessary elements for a defence not only against the infringement found, but also against the penalty for that infringement by imposition of a fine.

102    Therefore, it must be held that the Commission did not breach the applicants’ right to be heard by justifying its jurisdiction, for the first time in the contested decision, on the basis of the effects of the practices relating to projects outside the EEA. 

103    Second, in light of the finding at paragraph 92 above, the Court rejects the applicants’ argument that the Commission omitted to explain in the contested decision to what extent the discussions relating to projects in the ‘export territories’ in which they were involved had a foreseeable, direct and substantial effect in the EEA.

104    In the light of the foregoing considerations, the second plea must be rejected as unfounded.

3.      The third plea in law, alleging a manifest error of assessment in that the Commission concluded that nkt cables had participated in a single and continuous infringement and had been aware of all of its constituent elements

105    The third plea comprises, essentially, five parts. By the first part of the plea, the applicants maintain that the practices described by the Commission in the contested decision cannot be classified as a single and continuous infringement. By the second part of the plea, they dispute that they were aware of certain constituent elements of the single and continuous infringement. By the third part of the plea, they dispute that they participated in the ‘European cartel, in the context of which the European producers allocated territories and customers in the EEA. By the fourth part of the plea, they maintain that the Commission failed to prove that they had participated in the allocation of, or had exchanged information concerning, high voltage underground power cable projects in the EEA between 3 July 2002 and 17 February 2006. By the fifth part of the plea, the applicants deny that they were involved in the monitoring of the implementation of price and allocation arrangements or that they were aware of them, through the exchange of position sheets, market information and the establishment of reporting obligations. In addition, the applicants dispute generally the reliability of the evidence which the Commission gathered of their participation in the infringement and of their awareness of its various elements and dispute, in particular, the interpretation which may be made of the notes taken by Mr J.

106    The Commission contests all of the applicants’ arguments.

(a)    Preliminary observations

107    As is clear from the case-law, it is incumbent on the Commission to prove not only the existence of the agreement but also its duration. In particular, as regards proof of an infringement of Article 101(1) TFEU, the Commission must prove the infringement which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. 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. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine or for a reduction in the amount of that fine. In the latter situation, it is necessary to take account of the principle of the presumption of innocence, which is one of the fundamental rights that are protected in the European Union legal order and has been affirmed by Article 48(1) of the Charter. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. It is accordingly necessary for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see judgment of 17 May 2013, Trelleborg IndustrieandTrelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 50 and the case-law cited).

108    It has, however, also consistently been held 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 institution, viewed as a whole, meets that requirement (see judgment of 17 May 2013, Trelleborg IndustrieandTrelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 51 and the case-law cited).

109    Furthermore, it is normal for the activities which anticompetitive agreements entail to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of meetings, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgments of 7 January 2004, Aalborg Portland and Others v Commission 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, EU:C:2004:6, paragraphs 55 to 57, and of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraph 51).

110    The case-law requires, moreover, that if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (judgment of 7 July 1994, Dunlop Slazenger v Commission T‑43/92, EU:T:1994:79, paragraph 79; see also judgment of 16 November 2006, Peróxidos Orgánicos v Commission, T‑120/04, EU:T:2006:350, paragraph 51 and the case-law cited).

111    The arguments of the applicants must be examined in the light of the principles stated at paragraphs 107 to 110 above.

(b)    The reliability of Mr J.’s notes

112    The applicants dispute the reliability of the evidence on which the Commission relied in the contested decision in order to prove their participation in the single and continuous infringement as it is defined in the decision. They argue, in particular, that the Commission based its findings, essentially, on an employee of Nexans France, namely Mr J. However, the interpretation of those notes should be subject to caution, since, due to the central role that he played in the cartel, that person is alone able to supplement the notes with explanations. In addition, the terminology used in the notes is the result of long-held understandings between the major producers to which the applicants’ employees were not privy. The applicants also argue that Mr J. sometimes misunderstood what was said, or not said, during the cartel’s R meetings and they cite, as an example in that regard, his notes of a meeting held on 15 March 2005, which state that the applicants had agreed to stay out of the ‘400 kV Beddington Rowdown 10 km’ tender. According to the applicants, that statement is wrong, because they submitted an offer for that project on 2 May 2005 and finally won that call for tenders. Moreover, any agreement on the applicants’ part to stay out of the tender procedure would have made no sense, since their pre-qualification had already been publicly announced on 17 April 2004 and they had attended a site visit in April 2004. In addition, certain notes record proposals of Mr J.’s to which other attendees of R meetings never subsequently agreed. That is true, once again, of the notes relating to the meeting of 15 March 2005, which contain proposals for the allocation of coordination roles in several countries.

113    In that regard, it should be noted that, in the contested decision, the Commission relies on evidence other than the notes of Mr J. It is apparent from that decision that the Commission sent requests for information to all the addressees of the statement of objections, requesting all the information at their disposal concerning meetings of the cartel members. The applicants submitted a 10-page document in which they acknowledged having attended a certain number of those meetings, but stated that those meetings dealt ‘principally’ with ‘export territories’. That wording, by which the applicants do not exclude the possibility of the exchange of commercially sensitive information concerning projects in the EEA, is appropriate, since the discussions held during the meetings concerned included, in particular, the applicants’ preference for a project in Iceland, which is part of the EEA.

114    Moreover, it is apparent from recitals 447 to 460 of the contested decision that the Commission obtained evidence from various sources, namely inspections, leniency applications and replies to requests for information. The Commission also obtained confessions from other cartel members. Concerning the notes by Mr J., at recital 456 of the contested decision, the applicants underline that they were contemporaneous notes, frequently drafted during meetings of the cartel members, and were sometimes circulated amongst the parties. Moreover, when other notes of the same meeting are available, they confirm those of Mr J. Lastly, it must be held that the notes of Mr J. were not unreliable simply because they were not circulated since it was understandable that Mr J. kept them secret.

(c)    The absence of any single and continuous infringement

115    The applicants argue, first, that the contested decision refers to all sales of power cables, while the single and continuous infringement in fact relates only to sales of power cables that form part of a power cable project. Second, they maintain that the practices described in the contested decision in fact relate to two separate infringements, one concerning high voltage submarine power cable projects and the other concerning high voltage underground power cable projects.

(1)    The fact that the single and continuous infringement only covers power cables that form part of a project

116    The applicants maintain that their sales of power cables which did not form part of a project should have been excluded from the single and continuous infringement, since that infringement only covered sales of power cables forming part of a project.

117    In that regard, it suffices to note that, even if the applicants had in fact made sales of high voltage power cables that did not form part of a project, that fact would be irrelevant to the existence of the single and continuous infringement found by the contested decision, thus that argument can be rejected as ineffective.

(2)    The existence of separate infringements, concerning high voltage underground power cables and high voltage submarine power cables

118    The applicants argue that high voltage underground power cables and high voltage submarine power cables are non-substitutable products that belong to different markets. The also allege that the cartel members were different according to the type of cable concerned. Thus, the agreements concerning projects for high voltage submarine power cables were limited to the large European and Japanese producers, and ABB, and the agreements concerning the high voltage underground power cables were extended to encompass the smaller European, Japanese, South Korean and Saudi producers that solely manufactured high voltage underground power cables and the related equipment. The applicants argue moreover that the agreements seem to come from pre-existing, separate export schemes, the Submarine Cable Export Association (‘SMEA’) and the Super Tension Cables Export Agreement (‘STEA’). In addition, there were significant differences in the methods used with regard to the EEA. Thus, the allocation of high voltage submarine power cable projects in the EEA was principally territorial and covered the whole of the EEA, while the allocation of European high voltage underground power cable projects was limited to local arrangements in Spain, France and Italy, and ad hoc arrangements for projects in other EEA countries. The applicants also maintain that the definition of ‘export territories’ varied depending on whether they involved high voltage underground power cable projects or high voltage submarine power cable projects. In particular, they submit that, for historical reasons, Greece was part of those territories concerning high voltage submarine power cable projects, while they do not seem to have been included for high voltage underground power cable projects. According to the applicants, the meetings of the R cartel members (‘R meetings’) in which they participated did not concern high voltage submarine power cables. In addition, during the meeting between the A and R cartel members (‘the A/R meetings), the principal cartel members discussed projects concerning the two types of power cables during separate sessions. The applicants also state that, due to the fact that the practices concerning high voltage underground power cable projects involved a higher number of producers, they lasted for a shorter time than those concerning high voltage submarine power cable projects. Thus, after 2006, the majority of the projects discussed between the core cartel members were concerned with high voltage submarine power cables. The applicants dispute moreover that the infringement had a single objective, since the smaller producers were solely concerned with high voltage underground power cable projects and excluded from the separate meetings and communications relating to high voltage submarine power cable projects. Lastly, they maintain that the Commission merely extrapolated, on the basis of its findings relating to the characteristics of the agreement on high voltage submarine power cable projects, the characteristics of the agreement concerning high voltage underground power cable projects.

119    In that regard, it should be borne in mind 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 continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the various 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 (see judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, especially paragraph 41, and of 26 January 2017, Villeroy & Boch v Commission, C‑625/13 P, EU:C:2017:52, paragraph 55).

120    In that regard a number of criteria have been identified as being relevant for the assessment of the single nature of an infringement, namely the identical nature of the objectives of the practices in question, the identical nature of the goods and services concerned, the identical nature of the undertakings that took part in the practices, and the identical nature of the detailed rules for its implementation. Furthermore, whether the natural persons involved on behalf of the undertakings are identical and whether the geographical scope of the practices at issue is identical are also factors that may be taken into consideration for the purposes of that examination (see judgment of 17 May 2013, Trelleborg Industrie andTrelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 60).

121    In the present case, the ‘home territory’ agreement and the allocation of power cable projects in the context of the ‘European cartel configuration’ within the EEA were implemented at the same time, concerned high voltage submarine power cables and high voltage underground power cables, involved the same European producers, and, concerning that agreement and the agreement on ‘export territories’, involved the same South Korean and Japanese producers. Moreover, with the exception of Pirelli & C., the natural persons involved on behalf of the undertakings were the same for the various elements of the cartel. Similarly, the various measures had the same objective, namely the establishment of a system for sharing the worldwide market for power cable projects with the exception of the United States.

122    That finding cannot be called into question by the applicants’ arguments.

123    Regarding the assertion that the infringement cannot be qualified as a single infringement because high voltage underground power cables and high voltage submarine power cables are separate products corresponding to separate needs and, ultimately, to separate markets, first it must be noted that the ‘home territory’ agreement made no distinction between the different types of power cables. Second, contrary to what the applicants claim, it is apparent from the examples provided by the Commission as to the functioning of the control mechanisms of the ‘European cartel configuration’ (recitals 333 to 338, 399 and 400 of the contested decision), and of the ‘A/R cartel configuration’ (recital 106 of the contested decision) that compensation could operate between high voltage underground power cable projects and high voltage submarine power cable projects, so that from the point of view of the cartel members, there was manifestly no difference in that regard. Contrary to what the applicants maintain, the Commission did not err in interpreting the email exchange referred to in recital 399 of the contested decision in finding that that email exchange demonstrated that the compensation could operate between high voltage submarine power cable projects and high voltage underground power cable projects. It is apparent from that exchange that Mr A., an employee of Prysmian, indicated to Mr R., an employee of Nexans France, that he was refusing to compensate the benefit of the allocation of the land portion of a high voltage submarine power cable project to Prysmian by another project, but agreed to consider a subcontract in accordance with the principles governing the allocation of a project within the EU, without making a distinction depending on whether those projects were high voltage submarine power cable projects or high voltage underground power cable projects.

124    Regarding the applicants’ assertion that, during the A/R meetings, the submarine power cable projects and the underground power cable projects were the focus of separate meetings, it suffices to note that, even if some of those meetings dealt separately with the projects according to the type of power cable concerned, as shown by the invitations to the meetings on 11 September 2003 and on 28 January 2004, that assertion is contradicted by the fact that on other occasions the projects for submarine power cables and the projects for underground power cables were discussed during the same meeting. In reply to a question from the General Court, the Commission produced an extract of Annex I to the contested decision including a certain number of meetings of which it was certain that they concerned both underground power cables and submarine power cables during the same session. The Commission stated that that extract contained no information on meetings at which separate sessions took place during successive days, or on those whose organisation clearly showed that the projects involving underground power cables and those involving submarine power cables had been dealt with during different sessions. However, it observed that, even during those types of meetings, the representatives of the undertakings were the same for the discussions dealing with underground power cables, on the one hand, and with submarine power cables, on the other. In addition, the Commission adduced evidence referred to in the footnotes of that annex, on which it based its assertion that the high voltage submarine power cable projects and high voltage underground power cable projects were discussed during the same sessions during those meetings.

125    When requested by the General Court to express a position on those documents at the hearing, the applicants observed that they had not taken part in the A/R meetings, but it was apparent from the invitation addressed by Mr O., an employee of J-Power Systems, to the cartel’s European coordinator, Mr J., concerning an A/R meeting organised on 28 January 2004 in Kuala Lumpur (Malaysia), that different sessions were planned for high voltage underground power cable projects and high voltage submarine power cable projects.

126    In that regard, it should be noted that, as is apparent from the invitation addressed by Mr O. to Mr J. concerning the meeting on 28 January 2004 in Kuala Lumpur, that meeting was divided into two sessions. The first was to take place in the morning and concerned high voltage underground power cable projects. The second was to take place in the afternoon and to be reserved for high voltage submarine power cable projects. It is also apparent from Annex I to the contested decision that, during that meeting, the representative of Exsym, who did not manufacture high voltage submarine power cables and this is not disputed, participated solely in the meeting concerning high voltage underground power cable projects.

127    However, it cannot be inferred from that sole example that the underground power cable projects and the submarine power cable projects were systematically dealt with in separate sessions during the A/R cartel meetings. It is apparent from the evidence produced by the Commission that the high voltage submarine power cable projects and high voltage underground power cable projects were discussed during the same sessions in at least 13 A/R meetings organised from 22 February 2011 to 27 March 2003.

128    Regarding the applicants’ argument that the structure of the R cartel meetings varied according to the type of power cables, it should be noted that it is apparent from recitals 114, 249, and 534 of the contested decision that the Commission found that those meetings, which were preceded by a dinner organised the night before, in which all the members who were present participated, started with a general part, in which the participants discussed the general situation on the market and in their undertakings. It is also apparent from the description provided in the contested decision that, during that general part, Nexans France and Pirelli or Prysmian were also informing the smaller European producers, such as the applicants, of events in the context of the A/R meetings and the participants were thus discussing projects in the EEA, as well as in the ‘export territories’ and indicated which producer claimed or obtained ‘preference’ or ‘interest’. That description of the conduct of ‘R’ meetings suggests that the parties were in reality discussing all the projects without distinction between the underground power cable projects and the submarine power cable projects. In its defence, the Commission argues that, in so far as the separate sessions were organised during those meetings solely for high voltage submarine power cable projects, it was a logical consequence of the fact that it was not necessary to organise specific meetings with the smaller producers concerning high voltage submarine power cable projects since those producers were not producing such power cables. Through a measure of organisation of procedure, the Commission was requested by the Court to specify to what extent the evidence gathered during the administrative procedure allowed it to find that the underground power cable projects and the submarine power cable projects were part of the same discussions during those meetings. In reply, the Commission produced notes from the A/R meeting on 27 March 2003 in Tokyo (Japan), the R meetings on 23 April 2003, and on 12 May 2005, as well as an extract from J-Power Systems’ reply to a request for information from the Commission.

129    Requested by the Court to express a position on those documents at the hearing, the applicants maintained that the R meetings were divided into different sessions, according to whether the discussions concerned high voltage submarine power cable projects or high voltage underground power cable projects, which was said to be confirmed by an email exchange on 16 June 2004 between Mr J., Mr V. of Sagem and Mr C., an employee of Pirelli. The applicants indicated that the sessions in which they participated had concerned only high voltage underground power cable projects outside the EEA. They thus claimed that they had not taken part in discussions concerning high voltage submarine power cable projects or high voltage underground power cable projects in the EEA. Moreover, the applicants maintain that, contrary to what the Commission argues, they were not made aware during the R meetings in which they participated of the high voltage submarine power cable projects discussed during the A/R meetings. They also argue, concerning the high voltage submarine power cable projects referred to in the evidence produced by the Commission in reply to the request form the Court, that they did not themselves discuss those projects with the other cartel participants since they were projects for which they did not possess the appropriate technology.

130    In that regard, first, it should be noted that the applicants’ assertion that the R meetings were divided into different sessions, depending on whether the discussions concerned high voltage submarine power cable projects or high voltage underground power cable projects, is not supported by the email exchange on 16 June 2004 between Mr J., Mr V. and Mr C.

131    It is apparent from the email exchange on 16 June 2004 between Mr J., Mr V. and Mr C. that Mr J. asked Mr V. to organise a meeting with Mr R.C., another employee of Pirelli, during the next R meeting dedicated to a particular subject, titled ‘Mediterranean sub-contracting’. It cannot be inferred from that single email exchange that that particular meeting necessarily concerned high voltage submarine power cable projects. Moreover, in so far as that email exchange related to submarine power cable projects (see paragraph 151 below), it rather demonstrates that the organisation of separate sessions depending on the types of power cables was not the usual practice, since it concerned the organisation of one particular discussion, which would not have been necessary if such sessions were generally organised.

132    Second, it should be noted that the applicants’ argument that they did not take part in the discussions concerning high voltage submarine power cable projects or high voltage underground power cable projects outside the EEA during the R meetings in which they participated does not relate to the structure of the cartel during the whole period in which the infringement lasted, but concerns the conduct claimed to be adopted by the applicants during the cartel. That argument must thus be assessed in the context of an examination of the second and fourth parts of the present plea in law, in which the applicants complain that the Commission held them liable for conduct relating to submarine power cable projects of which they were not aware and did not prove that they had participated in the allocation and exchange of information concerning high voltage underground power cables in the EEA.

133    Third, it must be held that, contrary to what the applicants maintain, the evidence provided by the Commission in reply to the Court’s request demonstrates that the participants in the R meetings were made aware of high voltage submarine power cable projects that were discussed during the A/R meetings. Thus, first, it is apparent from the notes of the R meeting on 23 April 2003 that the participants, including the representatives of nkt cables, were informed of discussions that were held at the A/R meeting on 27 March 2003. It is apparent from the notes of the latter meeting that this meeting gave rise to discussions relating to high voltage submarine power cable projects. Second, it is apparent from the notes of the R meeting, that took place on 30 June and 1 July 2004, that the projects ‘Italy Sardigna’ and ‘Sarco’ were discussed on that occasion. Admittedly, contrary to what the Commission claims, it is not clearly apparent from the extract from the reply of J-Power Systems to a request for information that those projects were submarine power cable projects, since those are not expressly mentioned in the table of J-Power Systems. It is nevertheless apparent from the notes of that latter meeting that the project ‘Sarco’ raised difficulties between the managers of the French and Italian electric networks, which confirms the Commission’s assertion that this project referred to a route between Sardinia and Corsica and was thus a submarine power cable project. Lastly, it is apparent from the minutes of the R meeting on 12 May 2005, in which the representatives from nkt cables participated, that the projects ‘Ireland 220 kV’ and ‘GCC’ were mentioned during that meeting. Those projects are expressly mentioned as high voltage submarine power cable projects in the extract from the reply by J-Power Systems to the Commission’s request for information.

134    Those findings are not called into question by the applicants’ arguments at the hearing that, first, the notes of the R meeting on 30 June and 1 July 2004 are not reliable, because they mention the allocation of a project to a company, when that company did not belong to the cartel, and second, the projects ‘Ireland 220kV’ and ‘GCC’ required a technology that they did not possess. It should be noted that the company is mentioned in those notes in that its presence on the market constituted a problem that had to be managed by the R members of the cartel, in the same way that the presence of another Asian producer was considered a problem that it fell to the A members of that cartel to manage. Moreover, it must be held that the fact that those high voltage submarine power cable projects discussed during that meeting required a technology that the applicants did not possess has no bearing on the finding that those projects were in fact discussed during that meeting.

135    It follows that the Commission did not err in finding that the high voltage underground power cable projects and the high voltage submarine power cable projects were discussed at the same time during the R meetings, even if separate sessions were sometimes organised.

136    Regarding the applicants’ assertion that the practices relating to high voltage underground power cable projects came to an end with effect from 2006, it must be held that this claim is unfounded. It is apparent from recital 431 of the contested decision, of which the content is not disputed by the applicants, that during bilateral meetings on 3 September 2007 in Tokyo, Mr R. of Nexans France held bilateral meetings with the representatives of Viscas and of Exsym with a view to convincing Viscas to accept a proposition from Exsym and J-Power Systems in that regard. It is also apparent from that recital that in an email addressed to Mr J. and Mr R. of Nexans France on 5 September, Mr I. of Exsym referred to discussions on the subject of projects with another cartel member, namely LS Cable & System. The fact that, as is apparent from recital 421 of the contested decision, an employee of Viscas indicated to Mr J. on 9 May 2007 that he would concentrate for the moment on submarine power cable projects in view of the difficulty of reaching an arrangement for underground power cable projects given the numerous parties that had to be involved, cannot call into question the existence of contacts between the cartel members in 2007, in so far as, first, the position expressed by the representative of Viscas was prior to the discussions in September 2007, mentioned in recital 431 of the contested decision and second, Viscas did not express an intention to definitively abandon the possibility of concluding arrangements for the allocation of underground power cable projects.

137    In addition, it is apparent from recital 436 of the contested decision, of which the content is not disputed by the applicants, that on 27 February 2008, Mr R., of Nexans France, supplied Mr A. of Prysmian with a list of relevant prices for the ‘Cork Bay’ project, which included a submarine section and an underground section, as well as several limitations as to the commercial terms that Prysmian had to offer, such as a request to submit a price only for supply and not for the installation of the underground section of the project and the prices to be submitted. Contrary to what the applicants maintain in regard to the content of that conversation, it is irrelevant that Mr A. was generally the person responsible for submarine power cable projects for Prysmian.

138    Moreover, it must be noted that the ‘home territory’ agreement, which applied indiscriminately to submarine power cable projects and underground power cable projects and which did not require frequent contact due to its very nature, applied until the end of the single and continuous infringement, so that, contrary to what the applicants claim, it is irrelevant that the contacts in 2007 and in 2008 relating to the ‘home territory’, referred to in recitals 428 and 437 of the contested decision, dealt with high voltage submarine power cables.

139    Regarding the applicants’ assertion that the definition of the ‘export territory’ was different depending on the type of power cables, as is illustrated by the example of Greece, it should be noted that it is apparent from a document provided by J‑Power Systems in the context of its application for immunity that, unlike SMEA, the STEA agreement specified initially that the Japanese producers could export in Greece and in Spain and that this possibility was subsequently abolished. According to the applicants, that situation resulted from the entry of those countries into the European Economic Community, which drove the parties to the STEA agreement to exclude them from the arrangement concerning ‘export territories’, so as to prevent that arrangement from no longer benefiting from the exemption in Article 85 EC which had been granted to it by the Commission. However, it is not apparent from the evidence produced by the applicants that that difference of definition of the ‘export territories’ depending on the type of power cables in question, in particular concerning Greece, was applied again in the context of the cartel described in the contested decision. Thus, the position sheets to which the applicants refer only allow a finding that, during the period covered by those documents (2001 and 2002), no high voltage underground power cable projects were allocated in Greece while two other high voltage submarine power cable projects were allocated in that same country, with the identity of the tenderer incidentally not included. That cannot demonstrate, as the applicants maintain, that Greece was not part of the ‘export territories’ concerning high voltage underground power cable projects. Moreover, it must be underlined that, even if that claim were proved, in the absence of other examples, that would not simply mean that there was an exception concerning the definition of the ‘export territories’, which reinforced the idea that, in principle, the ‘export territories’ were the same regarding high voltage submarine power cable projects and high voltage underground power cable projects.

140    Regarding the applicants’ argument that the general similarities between SMEA and STEA, complemented by an unwritten agreement between the major producers not to compete on their respective ‘home territories’ and by the practices in question concerning high voltage submarine power cables and high voltage underground power cables, are not sufficient to conclude that those practices constitute a single and continuous infringement, it should be noted that the applicants were members of SMEA and STEA, which governed exports of high voltage submarine and underground power cables before the implementation of the cartel which makes them relevant for understanding the historical context in which that cartel exists. However, it should also be noted that, in the contested decision, the Commission did not merely refer to the rules of those export schemes, but examined, in recitals 527 to 539 of the contested decision, the existence in the present case of an overall plan with a single objective. Moreover, it must be pointed out that the applicants’ assertion that the submarine and underground power cable projects were allocated differently in the EEA is not supported by any evidence.

141    Regarding the applicants’ argument that the smaller producers were not able to share a single objective with the major producers, in so far as they were excluded from meetings and communications that related to high voltage submarine power cable projects, it should be noted that the smaller producers had reasons to share the cartel’s single objective as is described at paragraph 121 above, since, in maintaining that general objective, they were able to obtain the allocation of projects for high voltage underground power cable projects in the ‘export territories’ and obtain protection on their respective home territories. In addition, the example of Brugg Kabel set out in recitals 324 and 612 of the contested decision shows that the smaller producers were even able to try and obtain certain submarine power cable projects if those projects were able to be carried out with underground power cables.

142    In the light of the foregoing considerations, it must be held that the Commission did not err in finding that the various elements of the cartel constituted a single and continuous infringement of Article 101 TFEU. The first part of the present plea in law must therefore be rejected.

(d)    The applicants’ lack of awareness of certain elements of the single and continuous infringement

(1)    The applicants’ lack of awareness of elements of the infringement relating to high voltage submarine power cable projects

143    The applicants maintain, essentially, that they were not aware of the elements of the single and continuous infringement relating to high voltage submarine power cable projects.

144    In that regard, the applicants argue, first, that the R meetings in which their employees participated dealt solely with high voltage underground power cable projects. According to the applicants, that is explained by the fact that, since Brugg Kabel, Sagem and the applicants do not produce high voltage submarine power cables, there was no reason for Nexans France and Pirelli to discuss projects involving that type of power cable with them. In fact, the evidence demonstrates that high voltage submarine power cable projects were discussed only between the undertakings that produced that type of power cable, either in A/R meetings or in specific meetings between ABB, Nexans France and Pirelli, or in meetings between those three companies and other, smaller European undertakings. The applicants argue that the evidence relating to the R meeting on 30 June and 1 July 2004 demonstrates that a specific meeting was held between Nexans France, Pirelli and Sagem concerning a high voltage submarine power cable project in parallel with the R meeting, which, moreover, they did not attend. The evidence relating to the R meeting on 15 March 2005 merely shows that, since ABB was already very busy with the ‘NorNed’ project in Sweden, Mr J. had suggested — and the idea was rejected by the other cartel participants — that the applicants become coordinators for that country, but that does not mean that that role concerned high voltage submarine power cable projects.

145    Second, the applicants maintain that, although they did participate in two separate, written, lawful export schemes, namely SMEA and STEA, they were not part of the unwritten agreement between the major producers relating to the ‘home territory’ principle. Moreover, the applicants emphasise that they closed their ‘High voltage submarine power cable’ division in 2001 and that their employees, persons who had not been involved in the implementation of SMEA, did not begin attending R meetings until 2002. The applicants observe that the Commission considered that the South Korean undertakings — which had also participated in STEA and were more likely to learn of the practices relating to high voltage submarine power cables because of their contacts with the large Japanese producers — had not been aware of these practices.

146    Third, the applicants also argue that it was highly unlikely that their employees who attended R meetings were informed by the other persons attending R meetings about the practices relating to high voltage submarine power cable projects. They maintain, in fact, that they were not represented by the same employees in each of the R meetings, and that the employees in question attended only four or five meetings each, such that they never became part of the ‘closed network’ of the other participants, which comprised people who had known and dealt with each other for a long time. In addition, contacts between the applicants’ employees and the representatives of other participants that had been aware of activities relating to high voltage submarine power cable projects were limited to Mr J. and Mr R.

147    In that regard, it should be borne in mind that an undertaking which has participated in a single and complex infringement of that kind by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may thus be liable also in respect of the conduct of other undertakings in the context of the same infringement throughout the entire period of its participation in that 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 (see judgment of 26 January 2017, Villeroy & Boch v Commission, C‑625/13 P, EU:C:2017:52, paragraph 56 and the case-law cited).

148    An undertaking may thus have participated directly in all the forms of anticompetitive 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. An undertaking may also have participated directly in only some of the forms of anticompetitive 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 forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 26 January 2017, Villeroy & Boch v Commission, C‑625/13 P, EU:C:2017:52, paragraph 57 and the case-law cited).

149    In the present case, regarding the question of whether the applicants were aware of the elements of the single and continuous infringement relating to high voltage submarine power cable projects through their participation in the R meetings, it should be borne in mind that, as was noted at paragraphs 128 to 135 above, those meetings started with a general part during which Nexans France and Pirelli/Prysmian made the smaller European producers, such as the applicants, aware of events in the context of the A/R meetings which concerned both high voltage submarine power cable projects and high voltage underground power cable projects and that the organisation of separate sessions depending on the type of power cables at the R meetings was not the usual practice of the cartel members.

150    It should also be noted that the employees of the applicants that participated in the R meetings were in contact with the representatives of European producers, who were aware of the elements of the single and continuous infringement relating to the high voltage submarine power cable projects, other than Nexans France and Pirelli/Prysmian. As is apparent from recitals 217 to 230 of the contested decision, the applicants’ representatives met with those of Sagem and Brugg Kabel at some of those meetings, which the applicants do not dispute. It is apparent from recitals 303 and 610 and 324 and 612 of the contested decision that Brugg Kabel and Sagem were aware of the elements of the single and continuous infringement that related to high voltage submarine power cables, which the applicants do not dispute either.

151    If the evidence relating to the R meeting on 30 June and 1 July 2004, which the applicants’ representatives did not attend, in fact demonstrates that Nexans France and Pirelli/Prysmian held a specific meeting on that occasion with the representative of Sagem to discuss a high voltage submarine power cable project, that shows in particular that Sagem, who like the applicants, was not producing submarine power cables, was well aware of the fact that the cartel also included that type of power cable.

152    In addition, it is apparent from the notes relating to the R meeting on 15 March 2005 that Mr J. suggested entrusting the applicants with the role of ‘national coordinator’ for Sweden, because ABB was occupied for the next three years with the project ‘NorNed’, namely a high voltage submarine power cable project. The applicants do not dispute that that proposition was made, but observe that it was not accepted and that, even if it had been accepted, it would only have concerned high voltage underground power cables. However, it is difficult to understand why, if the high voltage submarine power cables were actually excluded from the cartel, the European coordinator would have referred to such a project to justify not entrusting the role of coordinator to ABB.

153    Moreover, it must be noted that, contrary to what the applicants claim, like ABB, it is apparent from the evidence produced by the Commission that they participated in the ‘unwritten’ aspects of SMEA which provided for the absence of competition between the Japanese and European producers on their respective ‘home territories’ and a quota for the allocation of projects in accordance with the ‘60/40’ quota in the rest of the world. It is also apparent from the evidence produced by the Commission that the applicants also participated in the ‘unwritten’ aspects of STEA. Thus, even if the applicants were no longer producing high voltage submarine power cables at the time of the single and continuous infringement, the parallel with the functioning of the preceding agreements which had been dissolved due to the fear of the undertakings that were participating in them that they would be discovered, should have made the applicants aware or put them on enquiry about the fact that the new agreements could have included submarine power cables.

154    In the light of the foregoing considerations, it must be concluded that the Commission did not err in finding that the applicants were aware of or, at least, could reasonably have foreseen the elements of the single and continuous infringement relating to high voltage submarine power cables, within the meaning of the case-law at paragraphs 147 and 148 above.

(2)    The applicants’ lack of awareness of the ‘home territory’ agreement

155    The applicants dispute that they were aware of the ‘home territory’ agreement. They maintain in particular that, contrary to what is indicated in the contested decision, they did not admit in their reply to the statement of objections that they had learned of that agreement during discussions concerning its breach by South Korean undertakings in Europe and by Prysmian in South Korea. In their reply to the statement of objections the applicants claim to have merely explained that their employee, Mr W., had learned, during the R meetings which he attended, that the South Korean producers and Prysmian did not like each other, because the latter had entered the South Korean market and the South Korean producers had consequently increased their presence elsewhere, in particular, by entering the European market for high voltage underground power cables. Mr W. remained under the impression that no agreement had been reached with the South Korean producers. That is clear from the notes taken by Mr J., of Nexans France, of the R meetings held on 23 April and 19 November 2003 and 15 March 2005. According to the applicants, there is no evidence either that they were aware of the fact that the agreement also applied between the European and Japanese producers. They observe in that regard, that the ‘home territory’ agreement had been entered into by the major producers before they began attending R meetings and that they did not attend the sole R meeting mentioned in the contested decision at which the agreement was discussed, that is to say, the meeting on 17 September 2004.

156    The applicants also argue that it cannot be concluded that they must necessarily have been aware of the ‘home territory’ agreement. According to the applicants, their awareness of that agreement cannot be presumed from their participation in STEA, since they were not aware of the application of a principle of observing the ‘home territory’ within the context of that latter agreement. Their awareness of the ‘home territory’ agreement cannot be presumed either from the fact that Sagem and Brugg Kabel were aware of it, since those companies were directly informed of that agreement’s existence by Viscas, in Sagem’s case, and at the meeting on 17 September 2004 in Brugg Kabel’s case. The Japanese producers’ absence from Europe would not have put the applicants on enquiry as to whether the principle in question existed, since that absence could be explained by the barriers to entry to the European market, which could also explain the absence of American producers. The presence of South Korean producers in the European market is explained by the fact that they enjoyed a monopoly in South Korea and therefore had the means to overcome the barriers to entry into that market. It is also the existence of barriers to entry to the North Asian market and the applicants’ own financial situation that explains why they were not present on that market, and not the ‘home territory’ agreement. The fact that the applicants’ were not aware of that agreement is confirmed by the fact that the Japanese producers did not consider them to be participants in that agreement.

157    Moreover, the applicants maintain that there is no support for the Commission’s claim that the ‘home territory’ agreement was the necessary basis for the ‘export territories’ arrangement and that, since they were aware of the latter they must have been aware of the former. In that regard, they submit that, as is clear from the evidence, the non-observance of the ‘home territory’ agreement by Prysmian and the South Korean producers had no effect on the application of the ‘export territories’ arrangement by the major European producers and the South Korean producers. Similarly, the Japanese producers continued to allocate projects in ‘export territories’ even though they considered that the ‘home territory’ agreement had ended in 2006, when Nexans France entered into a joint venture with Viscas.

158    In that regard, it must be held that, as the Commission acknowledges, there is no documentary evidence of the fact that the applicants had been informed of the ‘home territory’ agreement during the meetings in which they participated. However, it should be noted that since that principle did not deal with the allocation of projects, but with a negative obligation, its implementation did not require particular discussions, outside of potential cases of a breach.

159    If, as the Commission admitted in its defence, the applicants were not present during the meeting on 17 September 2004 during which the ‘home territory’ agreement was addressed in the context of discussions relating to the conduct of Japanese undertakings, it is apparent from their reply to the statement of objections that, contrary to what the applicants maintain, their employee, Mr W., had indicated that he had learned during the meetings in which he participated that the reason for which Prysmian and the South Korean producers did not like each other was that Prysmian had entered, first, into the South Korean market and that the South Korean producers then, in response, entered into the European market. That description of the situation does not correspond to the applicants’ claim, further on in their response to the statement of objections, and before the Court, that from their point of view, the entry of the South Korean producers constituted the normal competitive process which had seen several smaller producers including themselves developing new power cables and new accessories with a view to competing with the major producers in the markets on which they were not present up until then. If, as Mr W. describes, the attitude of the South Korean producers was a reaction to the initiative taken by Prysmian to enter the domestic market, that means that before that initiative, they had refrained from entering the European market and that, in the same way, Prysmian, and apparently the other European producers, had refrained from entering the South Korean market, which at the very least could give legitimate reason for the applicants to think that there was an agreement providing for respect of the ‘home territory’.

160    The applicants could, moreover, have been prone to consider that possibility in so far as, contrary to what they maintain, it is apparent from the evidence cited in recital 64 of the contested decision that they had participated in the unwritten aspect of STEA, which explicitly involved a ‘home territory’ agreement’.

161    The same goes regarding the link between the ‘home territory’ agreement and the ‘export territories’ agreement. Even if that is technically possible, it is quite difficult to imagine that the A and R members of the cartel would agree to allocate high voltage power cable projects to themselves in a certain number of ‘export territories’, defined by a predetermined quota, while accepting to fully compete with each other on their respective ‘home territories’ Taking account of the fact that, as the Japanese producers noted, they were already part of STEA, in the context of which the agreement on ‘export territories’ was supplemented by the ‘home territory’ agreement, the applicants should have at least considered the possibility that this was also the case in the context of the new agreement.

162    Similarly, the applicants’ argument that the reason for the absence of Japanese undertakings on the European market and their own absence on the North Asian market was the existence of barriers to entry into those markets that the South Korean producers overcame thanks to the monopoly that they held on their home market, is not consistent with the assertion that the entry of South Korean producers into the European market was part of a normal competitive process in the context of which the smaller producers, including the applicants, who were experiencing economic difficulties, had developed new products with the objective of challenging the major producers on the markets in which they were not present up until then. Contrary to what the applicants maintain, that argument is not supported by the email addressed by Mr I., the coordinator on the Asian side, to Mr J. on 29 June 2005 (recitals 353 and 354). In that email, Mr I. gives an interpretation on the application of the ‘home territory’ agreement when a request for information is issued by a manufacturer of accessories established in the Asian or European ‘home territory’, but in a country that is not the country of origin of an Asian or European cartel member. He submits that in that particular case, the principle does not ‘play’. It must be held that it cannot be inferred from that email that, from the point of view of the Japanese producers, the applicants, who are not even mentioned, were not aware of that principle.

163    In the light of the foregoing considerations, it must be held that the Commission did not err in finding that the applicants were aware, or at least should have been aware, of the ‘home territory’ agreement.

(3)    The applicants’ lack of awareness of collective refusal to supply accessories or technical assistance to certain competitors

164    The applicants argue, essentially, that they were not aware of practices involving the refusal of certain cartel members to supply accessories to or to provide technical assistance to certain competitors, in which, they did not participate, as the Commission acknowledged in the contested decision, and that they cannot therefore be held liable for that part of the infringement.

165    In that regard, it must be noted that, under Article 1(4) of the contested decision, the applicants were held liable for a single and continuous infringement in ‘the (extra) high voltage underground and/or submarine power cable sector’. The existence of such a single and continuous infringement is based, in particular, according to recital 525 of the contested decision, on the finding that there existed an overall plan with the single aim to restrict competition for submarine and underground power cable projects in specific territories by agreeing on market and customer allocation and thereby to distort the normal competitive process in the internal market, that all parties intentionally contributed in their own way to that single aim and that, with very few exceptions, all parties were aware of the conduct planned or put into effect by the other undertakings in pursuit of that same single aim or could have reasonably foreseen it and were prepared to take the risk, within the meaning of the case-law cited at paragraph 147 above.

166    It must also be noted that recital 595 of the contested decision, which introduces the part of that decision relating to the cartel participants’ awareness of the conduct of the other undertakings in the pursuit of the single aim of the cartel, indicates that the analysis was carried out for the particular circumstances of that cartel as set out in recital 526 of the contested decision, namely the fact that the same cartel had two principle configurations, the ‘A/R configuration’ and the ‘European configuration’, comprised several methods of allocation, namely observance of the ‘home territories’ and allocation for the ‘export territories’, concerned two separate products, namely submarine power cables and underground power cables, and involved two major groups of, first, European producers, and second, Japanese and South Korean producers, of whom the participation and individual contribution to the cartel concerned varied.

167    It should, moreover, be noted that, at recital 493(g) of the contested decision, the Commission describes four communications between a minority of participants concerning the supply of accessories and technical assistance. The first communication concerned the supply of accessories for 220kV power cables and above, and included a proposition to promote the design of a one piece joint (recital 171 of the contested decision). The second communication is that in which J-Power Systems asked Nexans France for its agreement to supply joints to Taihan Electric Wire (recital 223 of the contested decision). The third communication is a communication between Pirelli and J-Power Systems with the aim of agreeing on supplying technical assistance to a competitor that had not participated in the cartel (recital 248 of the contested decision). The fourth communication is a communication between Nexans and Prysmian with the aim of agreeing on supplying technical assistance to a competitor that had not participated in the cartel (recital 356 of the contested decision). However, although those elements are put forward by the Commission as an activity pursuing the cartel’s overall objective, there is no indication of the fact that those communications are linked to sales of joints in the context of power cable projects. Therefore, the goods and services that are subject to those practices are not part of the category of goods concerned by the single and continuous infringement described at recital 13 of the contested decision.

168    In that regard, although the Commission had to prove that the applicants participated in the constituent elements of the single and continuous infringement or were aware or could reasonably have foreseen them and were prepared to take the risk of being held liable for the entirety of that infringement as defined in the contested decision, it cannot be held that the Commission was bound by such an obligation with regard to the non-essential characteristics of that infringement (see, to that effect, judgments of 14 December 2006, Raiffeisen Zentralbank Österreich And Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 193, and of 10 October 2004, Soliver v Commission, T‑68/89, EU:T:2014:867, paragraph 67). In the present case, the particular means by which the various constituent elements of the single and continuous infringement were strengthened, such as the collective refusal to supply accessories or technical assistance to certain competitors, are not essential characteristics of the overall cartel, since those practices concerned the sale of goods or services that were not included in the category of goods and services that were subject to the single and continuous infringement, and thus their addition, modification or discontinuance had no effect on the overall plan, a fact that the applicants do not dispute regarding the collective refusal to supply accessories and technical assistance to certain competitors.

169    It follows that, to hold the applicants liable for participation in the single and continuous infringement, the Commission was not required to prove that the applicants directly participated in the practice of collectively refusing to supply accessories and technical assistance to competitors that were not participating in the cartel with a view to preventing the entry of those competitors into the EEA market, or were aware of it or should have been aware of it.

(4)    The lack of awareness of agreements on prices and cover bids for high voltage underground power cable projects in the EEA

170    The applicants argue, essentially, that there is no written evidence to show that they were aware of agreements on prices or cover bids. In particular, they argue that none of the emails mentioning such agreements to which reference is made in the contested decision was sent to them or circulated to them. The applicants infer from that that the other cartel members deliberately excluded them from communications concerning such agreements. They contest that the prices were definitely discussed during R meetings and state that those meetings were not the appropriate forum for discussing prices for power cable projects, owing to the heterogeneous nature of such projects.

171    In that regard, it should be noted that the applicants were not addressees nor put in copy for emails referring to the pricing agreements mentioned in the contested decision. However, it is apparent from the notes taken during the R meeting on 10 February 2004, in which the applicants do not dispute their participation (paragraph 195 of Annex I to the contested decision), that the applicants’ notice of withdrawal from participation in the R meetings is presented as possibly resulting from the submissions of bids at different prices for a project in Lubeck (Germany) by several cartel participants including the applicants (recital 296 of the contested decision). It is indicated there: ‘“[Nkt cables] withdrawing from the conference: difficulty with [Nexans].” “Reason???” “Lubeka. [Nexans] at 3, [nkt cables] at 4, [Pirelli] at 5 million euros.”’ It is also apparent from those notes that a floor price was set for a project in Portugal. It is thus indicated ‘Order from [Sagem] at [Pirelli] price’.

172    Moreover, the applicants indicated in their pleadings that Mr J. of Nexans France had contacted one of their employees on the subject of a project in Italy and that that employee, namely Mr W., had indicated to him that the applicants had already submitted their bid and had high hopes of winning the call for tenders because of their specific technological expertise. They summarised that situation at paragraph 114.2 of the appeal, stating that ‘In other words, NKT Cables had spoiled an allocation and cover-pricing arrangement set up by others and had no intention to retract its bid’. They also maintain, at paragraph 56 of the reply, that they had unwittingly spoiled that arrangement, of which they were not aware, since they had not attended the meeting on 3 March 2004, during which that project had been allocated. However, it must be stated that they thus admit having learned of the existence of those practices, even if accidentally.

173    In any event, the very principle of allocating a high voltage power cable project to a cartel member implies that, to be implemented effectively, the participants agree on a minimum price that that member will offer or the maximum quality of its offer in the context of a call for tenders. Save to imagine that all the other cartel members would refrain from bidding, which is difficult to envisage from a commercial point of view because that would involve not replying to certain customers, a certain number of cartel members had to bid while ensuring that their bid would be less attractive than that of the member to which the project was allocated. That necessarily involves knowledge of the minimum price that they could bid or the maximum quality of their offer in the context of that call for tenders in order to proceed with cover bids.

174    In that context, it must be held that the Commission did not err in submitting that the applicants were aware or at least should have been aware of the existence of agreements on price, and of the existence of cover bids.

(5)    The applicants’ lack of awareness of conduct relating to projects involving high voltage underground power cables with voltages of 110 kV and above

175    The applicants maintain that they were not aware that the cartel covered high voltage underground power cables with voltages of 110 kV and above, inasmuch as the market for this type of power cable is very competitive, as is clear from the fact that none of the six projects mentioned in the contested decision were ultimately awarded.

176    In that regard, it should be noted that the evidence cited by the applicants, which refers to underground power cable projects of 100kV, in particular, in Spain, Finland, Switzerland, the Netherlands and Germany, referred to at recital 113, at recital 231(g), at recital 279(e), at recital 280(d) and at recital 322 (d) of the contested decision demonstrate that such projects were covered by the cartel. It is irrelevant in that regard that some of those projects were not allocated in the end because of overly stiff competition from producers outside of the cartel.

177    Moreover, it is not apparent from the evidence cited by the applicants that there existed a particular agreement concerning underground power cables of 110 kV of which they were not aware. Therefore, the Commission was not required to demonstrate that the applicants knew that the cartel also applied to that type of power cable.

178    In the light of the foregoing, the second part of the present plea must be dismissed.

(e)    The lack of evidence of the applicants’ participation in the allocation of customers and specific territories within the EEA

179    The applicants maintain, essentially, that there was no ‘European cartel configuration’, since the Japanese producers played an active role in the operation of that configuration and that there is no evidence that, in the context of that configuration, the applicants were allocated any specific territory or customers.

180    In that regard, in the first place, it should be noted that, contrary to what the applicants attempt to argue, if the Japanese producers in fact made cover bids to avoid the ‘European cartel configuration’ being discovered when they received requests for information concerning projects in the EEA, that does not mean that those undertakings participated in the allocation of those projects between the various European producers. The position sheets, on which the applicants try to rely to demonstrate that the Japanese producers were able to influence the choice of the European producer specifically chosen for a project within the EEA, have no evidential value in so far as those documents relate to a period before the applicants’ participation in the infringement and were limited to specifying the projects which were allocated to R cartel members and those that were allocated to A cartel members.

181    In the second place, while reference is in fact made, at recital 493 of the contested decision, to the allocation of territories and customers within the EEA, it must be held that the numerous examples referred to in that recital actually concern the allocation of individual projects in the EEA to various R members of the cartel, which generally took place, but not always, on a territorial basis.

182    It should be noted that those examples illustrate the general description of the allocation mechanisms of the ‘European cartel configuration’ that appear at recitals 107 to 110 of the contested decision.

183    However, it must be underlined that the Commission specified in the context of the description of the allocation mechanisms of the ‘European cartel configuration’ that it was not necessary for the contested decision to express a position on the question of whether the allocation of projects within the EEA was partly done in accordance with and in order to observe the home markets.

184    Therefore, it must be observed that, even if it were well founded, the applicants’ argument relating to the lack of proof of territorial allocation in the context of the ‘European cartel configuration’ would be ineffective.

185    Moreover, it must be pointed out that, as is apparent from recital 372(m) of the contested decision, Mr R.C. of Pirelli indicated in an email of 6 July 2005 addressed to Mr J., that he had received a request for information, stating the following: ‘Destination: a very cold place (still [nkt cables] territory?)’

186    It should be noted that, while the applicants deny having been allocated a territory corresponding to a ‘very cold place’, they do not explain convincingly why the other cartel members considered that to be the case. The justification provided by the applicants in the reply is that Mr R.C. was wondering if customers located in that ‘very cold place’ were still using the applicants as a supplier, because prior supply would confer, according to the major producers, a privileged status. However, according to the applicants, they never shared that point of view as is demonstrated by the development plan named ‘Gulliver’, a targeted strategy aimed at agreeing on new markets in the EEA and with the overall objective of increasing their market shares in countries close to those in which they had production facilities, in particular in Spain, in France, in Italy, in the United Kingdom, and in the Benelux countries. It must be pointed out that that development plan was presented in 2003, such that, if it constituted an obstacle to the allocation of a ‘home territory’ to the applicants, that would certainly have been taken into account by Prysmian and Nexans France in 2005.

187    Furthermore, it must be noted that, while the applicants argue that there is no evidence that an individual project was allocated to them on a territorial basis, they do not expressly dispute having participated in the allocation of individual projects on a territorial basis for the benefit of the other R cartel members (see recitals 249, 296, 344, 346, 348, 372 and 392 of the contested decision), such that their line of argument is not, in any event, capable of calling into question the Commission’s conclusion that they participated in the ‘European cartel configuration’.

188    Consequently, the third part of the present plea must also be rejected.

(f)    The lack of evidence of the applicants’ participation in the allocation of, or the exchange of information concerning, high voltage underground power cable projects within the EEA between 3 July 2002 and 17 February 2006

(1)    The period prior to 10 February 2004

189    The applicants do not dispute that they first attended an R meeting on 3 July 2002, but they argue that there is no evidence that they participated in any anticompetitive agreement or concerted practice relating to high voltage underground power cables in the EEA, or that they were aware of any such agreement or any such practice prior to 10 February 2004, the date on which such practices were discussed for the first time, leading to the withdrawal of the applicants’ representative from R meetings.

190    In that regard, it should be noted first that, as is apparent from an email addressed to Mr O., of J-Power Systems, by Mr J. in September 2002 (recital 218 of the contested decision), Mr J. indicated the following:

‘A. had confirmed that although EXSYM could not attend last meeting (despite prior announcement they would) they would be attending the next one (this London meeting). Could you confirm who will attend from EXSYM? Please note that a representative of [ABB] will attend the dinner, it would be a pity not to show a complete attendance in this case and would probably not help progressing in the improvement of the Scheme. We have now on regular basis contacts with [nkt], [Sagem], [Brugg Kabel] if we do not have EXSYM on board this is meaningless.’

191    Contrary to what the applicants maintain, it is clearly apparent from the email in question that at that time Nexans France considered that their participation in the cartel, as well as that of the other smaller European producers, ABB and Exsym should ensure the cartel’s improvement. It is evident that Mr J. refers here to the improvement of the functioning of the allocation of projects in the ‘export territories’ which, to be as efficient as possible, required the participation of the highest number of European and Asian producers possible.

192    Similarly, it is apparent from the email exchange on 22 November 2002 (recital 234(h) of the contested decision), in which Mr N. of Brugg Kabel had indicated two projects in the EEA to Mr J., one in Spain and the other in Denmark, that Mr J. had replied, concerning the second project, that the ‘matter [was] coordinated to FG [nkt cables]’. The applicants maintain in that regard that the latter project was never allocated to them and that it was ABB that finally won the contract. According to the applicants, Mr J.’s reply corresponded to a strategy that actually aimed to keep the project in question for Nexans France by giving false information to Brugg Kabel. They argue that Mr J. had established a list beforehand of tenderers for that project on which he had underlined its importance for Nexans France. However, that explanation implies that Brugg Kabel knew or could legitimately have believed that the applicants had been allocated the project and that, thus, they were part of the cartel.

193    The applicants also unsuccessfully try to dispute the content of the notes of Mr J. relating to the R meeting on 23 April 2003, cited at recital 249 of the contested decision, in which the following is indicated concerning a project in Italy: ‘400kV 2000m ITALIAN CASE taken by Pirelli’.

194    According to the applicants, use of the term ‘taken’ simply means that Pirelli won the call for tenders. That interpretation is corroborated by the mention of ‘72 kV project Thule Base Greenland award to Pirelli against NKT’. According to the applicants, the project in Greenland was allocated on 15 April 2003, before the R meeting on 23 April 2003. The references to projects in Italy and Greenland thus constituted a mere exchange of public information.

195    It must nonetheless be found that that argument is implausible, in so far as the Commission rightly noted, while the first page of the document from the contracting authority concerning the project in Greenland, produced by the applicants, refers to 15 April 2003 as the ‘date of contract allocation’, the second page of that document indicates that the contract was allocated on 25 April 2003. In addition, the applicants do not explain why the notes of the meeting refer to Pirelli, while the document that they produce refers to another undertaking. The applicants merely presume that the latter might have been a subcontractor of Pirelli, but do not adduce any evidence of it. Moreover, it should be noted that Italy was considered to be the home market of Pirelli and Nexans France, such that it is more plausible that the expression ‘taken by Pirelli’ refers to the fact that Pirelli had expressed its interest and that Nexans France had not opposed it.

196    It follows that the applicants’ argument that the Commission wrongly considered that they had participated in an anticompetitive agreement or in a concerted practice concerning high voltage underground power cables in the EEA or that they were aware of such an agreement or such a practice before 10 February 2004 must be rejected as unfounded.

(2)    The period between 10 February 2004 and 10 December 2004

197    The applicants maintain that, after their employee announced his withdrawal from all participation in R meetings on 10 February 2004, they did not attend such meetings until 10 December 2004. They thus submit that they officially and publicly distanced themselves from the cartel by means of their employee’s announcement, and that is demonstrated by the fact that the other cartel participants did not invite them to a special R meeting devoted to the launch of projects in the EEA, which was held on 3 March 2004. The evidence which the Commission cites in order to prove their participation in the cartel during the period from 10 February 2004 to 10 December 2004 relates solely to two unsuccessful attempts on the part of cartel members to have them participate in R meetings again. The notes of Mr J. of the R meeting on 17 September 2004, in which the applicants did not participate, which mention a preference of the applicants for a project in Iceland, does not demonstrate that the applicants had actually expressed any agreement in this regard. Moreover, that is confirmed by the fact the call for tenders for that project was ultimately won by Sagem, without any particular reaction on the part of the applicants or the other producers.

198    In that regard, first, it should be noted, as the Commission has done, that the applicants do not produce any contemporaneous record of their position at the time, but merely maintain that their employee, Mr D.-J., had left the R meeting on 10 February 2004 after having stated that the applicants were withdrawing from the R cartel meetings when the participants started discussing projects in the EEA and that that statement is documented in Mr J.’s notes of that meeting.

199    Second, it should also be noted that the applicants’ argument is contradicted by their own reply to the Commission’s request for information on 7 May 2010, from which it is apparent that the claimed withdrawal from the R meetings recalled by their employee, Mr D.-J., had taken place after the R meeting on 19 November 2003, following which certain participants had indicated that they wished to discuss a particular call for tenders in more detail. According the applicants’ reply, Mr D.-J. was strongly opposed to the applicants’ tendency during the meeting to engage in such discussions. Mr D.-J., considering that that discussion was inappropriate, left the room. According to the applicants’ reply to the Commission’s request for information on 7 May 2010, no other such incident took place in the presence of Mr D.-J. during the meetings in which he subsequently participated.

200    It must thus be held that, while Mr D.-J. allegedly left the R meeting because of the nature of the discussions between the participants, it did not concern the meeting on 10 February 2004, but that on 19 November 2003,

201    Third, the applicants’ argument is not supported by Mr J.’s notes of the R meeting on 10 February 2004. Thus, the passage in those notes cited by the applicants is in the part entitled ‘Projects’ and states the following: ‘Portugal 220kV ORDER to [Sagem] at [Pirelli] price’. ‘Germany [nkt cables] to withdraw from conference: difficulty with [Nexans France]. Reason?? Lubeka [Nexans France] at 3, [nkt cables] at 4, [Pirelli] at 5 million euros’.’

202    It appears to follow from the passage in Mr J.’s notes of the R meeting of the cartel members on 10 February 2004 cited by the applicants that nkt cables threatened to withdraw from that meeting because of a problem with Nexans France concerning a price likely to be too low, submitted by the latter for a project in Germany. There is no mention of a problem relating to the fact that the participants discussed projects in the EEA, as the applicants allege, nor of an objection of principle to the cartel or of a willingness to distance itself from the cartel. Incidentally, further on in those notes, there is a question of a power cables project in Magdeburg (Germany) with the reference ‘Germany: MAGDEBURG 9km 1X2000 220 kV CCC [Nexans France] [Brugg Kabel] [nkt cables]’. The applicants and the other cartel members are mentioned in the same manner, which suggests that the applicants were still members of the cartel.

203    Moreover, it must be pointed out that, in accordance with settled case-law, to prove to the requisite standard that an undertaking participated in a cartel, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anticompetitive nature were concluded, without manifestly opposing them. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anticompetitive 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. Consequently, it is indeed the understanding which the other participants in a cartel have of the intention of the undertaking concerned which is of critical importance when assessing whether that undertaking sought to distance itself from the unlawful agreement (see judgment of 19 March 2009, Archer Daniels Midland v Commission, C‑510/06 P, EU:C:2009:166, paragraphs 119 and 120 and the case-law cited).

204    The applicants’ claims as to the reaction of the other cartel members following their alleged withdrawal are not convincing either.

205    Thus, the applicants’ assertion that Mr R., the superior of Mr J. of Nexans France, asked Mr J. for the mobile number of Mr D.-J., to convince the latter to revisit his decision to leave the R meetings, is not supported by any evidence.

206    Similarly, regarding the R meeting on 3 March 2004, it should be noted that, an email from Mr C. of Pirelli on 26 February 2004, addressed to Mr J. of Nexans France, Mr V. of Sagem, and Mr N. of Brugg Kabel, had, after specifying the place and the date of the meeting, asked Mr J. if he had news from Mr D.‑J. While it is not apparent from that single email that that meeting was a meeting to ‘launch’ the high voltage power cable projects in the EEA, that assertion is supported by Mr J.’s notes of that meeting which refer exclusively to projects within the EEA, to the exclusion of projects in the ‘export territories,’ and do not have a heading devoted to the results of the previous A/R meeting.

207    However, contrary to what the applicants maintain, it cannot be inferred from the email from Mr C. on 26 February 2004 that their employee was not invited to the R meeting on 3 March 2004. In addition, the fact that a cartel member asked the coordinator if he had news from the applicants in the context of a discussion relating to the organisation of an anticompetitive meeting suggests that, from its point of view, the applicants were still perceived as members of that cartel.

208    The following is also indicated in Mr J.’s notes of a meeting that was held on 1 March 2004 with the representative of ABB, during which several projects were discussed:

‘D/ BUTTENDIEK

[nkt cables] Like to make a consortium between [Nexans France], [nkt cables], SK,

Lot 2 36 kV SUBMARINE: INTERMILLS CONNECTIONS 2Xsections about 60 km

Lot 1 150 kV SUBMARINE: 1 section mills to land SM interconnect 3X1200 sqmm 36 due 20/1 km

LOT 3: 150 kV 135km 1200sqmm. DUE 10/1 (after 1 week extension). FPL proposed by NXG: 67^E/m land and 69^E/m land in water (Sylt)

Consortium 3G

Offer from [Pirelli] for the land

Offer from [ABB]

Contractors involved.

FPL proposed possibility to share [Nexans France] [ABB] at later stage the big SM. Exchange price on intermill.

ABB tries to be an overall contractor.’

209    It is clearly apparent from Mr J.’s notes of the meeting held on 1 March 2004 with the representative of ABB that the applicants wished to make a consortium with Nexans France and one other producer to participate in that project, since that project required laying underground power cables, but also submarine power cables, which the applicants did not produce. It is also apparent from the notes that the call for tenders for that project had to be won by that consortium and that Pirelli and ABB had to submit bids, for underground power cables and submarine power cables respectively while observing the base price proposed by Nexans France. It should be noted that at no point was it specified that the applicants were not participating in the cartel anymore. If that were the case, there would have been no reason for Nexans France to accept to let them benefit from the arrangement concerning that project.

210    Regarding the applicants’ refusal to participate in the R meeting on 30 June and 1 July 2004, it should be noted first that the very fact that they were invited means that they were still perceived by the other cartel members as participating in that cartel. Moreover, it must be specified that Mr D.-J. replied on 16 June 2004 to the invitation that was addressed to him by Mr J. in the following manner:

‘Dear [Mr J.]

Thanks for your invitation but we are not participating.

I expect that we will have a chance to meet at the Cigre. See you.

Best regards,

[Mr D.-J.].’

211    It is apparent from Mr D.-J.’s email that he thanked Mr J. for his invitation, declined the offer to participate in the meeting of the R cartel members on 30 June and 1 July 2004, and expressed the hope to meet him at a conference in the future. The tone used is cordial and the email does not make any reference to a general refusal to participate in the R meetings or in the cartel.

212    The content of the email exchange between Mr R.C., an employee of Pirelli, and Mr J. on 24 June 2004, concerning a refusal by the applicants to participate in the next meeting of the R members of the cartel, does not demonstrate either that the applicants were perceived by the other cartel members as having withdrawn from the cartel. In that email exchange, Mr R.C. asked Mr J. if ‘the others’ had confirmed their presence at that meeting. Mr J. replied, essentially, that everybody had confirmed their participation except for Mr D.-J.

213    Contrary to what the applicants maintain, the fact that Mr J. made a play on words with Mr D.’s surname in using the term ‘maudit’ does not necessarily mean that he was unhappy with Mr D’s withdrawal, but can just as well be explained by the fact that, being in charge of the coordination of the ‘European cartel configuration’, he had to ensure as far as possible that all the R members attended the meetings.

214    Similarly, it is apparent from the agenda of the R meeting on 17 September 2004 that under the heading ‘Future Projects’, the following is indicated:

‘Iceland 245 kV 20 Km: Pref to [nkt cables] BAHREIN: AL EZZEL Siemens 220 kV S/S purchasing stage being flexible UPDATE AND REVIEW with [nkt cables][Kuwait] 132 Kv: Next should be [Nexans] depending on quantity.’

215    It follows that, although it is not established that the applicants participated in the R meeting on 17 September 2004, the other cartel members were aware of the preference that they had expressed concerning a project in Iceland and continued to consider them as cartel members.

216    Therefore, the applicants’ argument that they withdrew from the cartel during the period from 10 February 2004 to 10 December 2004 must be rejected as unfounded.

(3)    The period between 10 December 2004 and 17 February 2006

217    The applicants argue that, while one of their employees in fact participated in four R meetings from 10 December 2004 onwards, those additional meetings were solely for the purpose of exchanging general information about the market, as well as on high voltage power cable projects for which the result of the call for tenders was already officially known, on the existence of new calls for tenders and imminent calls for tenders, and on the interest of the participants in those meetings in those calls for tenders, and not for the allocation of those projects, which was apparent from Mr J.’s notes. They observe that Mr W., who represented them during those meetings, had taken particular care to avoid divulging confidential and sensitive information, such as prices and capacities, and from making commitments. They also argue that, while certain projects discussed during those same meetings were allocated, the allocation took place during separate meetings in which they did not participate, through correspondence or through bilateral meetings between the cartel members from which they were excluded.

218    In that regard, it should be noted, first, that the applicants’ line of argument is based on the premiss that, from 10 December 2004 to 17 February 2006, the cartel participants radically changed their conduct, to the point that the R meetings were no longer for the purpose of allocating high voltage power cable projects, but simply to inform each other of calls for tenders and of the general situation on the market. That explanation is not only implausible, but also contradicted by the evidence at the Commission’s disposal and to which the applicants refer.

219    First, the applicants do not explain the reason for which the R members of the cartel suddenly ceased to allocate high voltage power cable projects during their meetings. They do not produce evidence of such a decision either. Moreover, they admit themselves that the European producers, which were cartel members, continued to inform each other during those meetings of their mutual interests regarding calls for tenders without explaining why, other than the wish to find a type of anticompetitive arrangement, for which those European producers revealed their interest for specific high voltage power cable projects to their competitors. It should also be noted that the communication to competitors of such information, which concerned the undertaking’s commercial strategy, already constituted behaviour infringing Article 101(1) TFEU. It matters little in that regard that the applicants’ representative refrained from giving more specific information relating to price or to capacity to those competitors.

220    Second, the evidence contradicts the applicants’ claims. Thus, regarding, the R meeting on 10 December 2004, the following is indicated in Mr J’s notes, under the heading ‘Situation and Orders on Pref. Projects’:

‘Mr R. [Nexans]:

230 kV HADEED SIEMENS 3 million euros

ALGERIA Tizlitem 0.6 million euros

Mr R. C. [Pirelli]

110kV MACAU 0.6 million dollars

SINGAPORE EXPECTED NDC 47 SOON

Italy TURBIGHORO 400 kV expected before xmas

Italy 220 kV E TENDER SOON

CLP [Hong-Kong] FRAME 1MUSD 132 kV

…

[nkt cables]

AACHEN

…’

221    The applicants argue that the project located in Aachen (Germany) was not allocated to them during the R meeting on 10 December 2004, but on 18 November 2004. They thus implicitly admit that the projects mentioned under the heading ‘Situation and Orders on Pref. Projects’ were actually allocated during the R meetings. In addition, they do not argue that all the other projects mentioned under that heading were also allocated before the R meeting on 10 December 2004.

222    The applicants do not explain either why Mr J.’s notes of the meeting of the R members of the cartel on 10 December 2004 mention preferences concerning future projects, for example, the preference requested by Sagem for a project in China. In those circumstances and in the light of the context, it is difficult not to conclude that the discussions during that meeting concerned the allocation of projects.

223    Regarding the R meeting on 15 March 2005, it is apparent from Mr J.’s notes that several projects were discussed (recital 346 of the contested decision).

224    Under the heading ‘UK/Ireland’ concerning the projects ‘400 kV tender Beddington Rowdown 10km’, the following is indicated:

‘südkabel a challenger.

[nkt cables] agrees to be out

Sagem to check the situation’

225    Similarly, under the heading ‘Netherlands’ concerning the project ‘Essent’ it is indicated:

‘[Brugg Kabel] invited not aggressive

[Pirelli] LEADS [nkt cables] to contact local.’

226    It is indicated under the heading ‘Belgium’:

‘SIDMAR siemens: [Brugg Kabel], [Pirelli], [nkt cables]

[nkt cables]: seek interest in recently announced project in EC journal 70 kV near German border and 150 kV near French border.’

227    There is also mention made of action against ‘OUTSIDERS’ and on the manner of obtaining ‘protec[tion] in Germany’, with nkt cables having to enquire progressively concerning Südkabel.

228    It is also indicated, under the heading ‘Situation and orders on Pref. [Preference] Projects’ that the project ‘al ezzel power station’ had been taken by Brugg Kabel.

229    It thus appears clear that the discussions during that meeting concerned the allocation of projects.

230    The applicants state that they submitted their bid for the project ‘Sidmar’ before the R meeting on 15 March 2005 and that this bid was unsuccessful. However, it is established that the cartel members submitted cover bids in order to manipulate the procedures for awarding contracts (recital 493(e) of the contested decision), which the applicants were aware of or should at least have suspected, as has been found at paragraphs 171 to 174 above. It was thus normal that those members ‘lose’ during those procedures, and the fact that the applicants did not in the end conclude the contract for that project is not an element capable of ruling out their participation in the allocation of that project to a cartel participant. Nor does such a fact demonstrate that the market relating to the project ‘Sidmar’ was allocated before that meeting. Therefore, it must be held that, in the present case, the applicants have not adduced evidence capable of establishing that, despite the discussions within the cartel concerning the allocation of the project concerned to a cartel participant, the allocation by the contracting authority of the relevant market of that project could not have been influenced by the conduct of the members of that cartel.

231    It is apparent from the notes of the R meeting of 12 May 2005, referred to at recital 348 of the contested decision, that the contract relating to the project ‘Sidmar’ was interesting for Nexans France. The applicants suggest that Nexans France might have wished to be a subcontractor, but does not produce any evidence in support of that interpretation. Even supposing that this were the case, all competition for the role of subcontractor was distorted if the cartel members indicated their interest for such a role.

232    The applicants assert that Mr J. misunderstood what was said during the R meeting on 12 May 2005 concerning the project ‘400 kV tender Beddington Rowdown 10km’, which is evidenced by the fact that they submitted a bid for that project on 2 May 2005 and ultimately won the call for tenders for that project, which the Commission does not dispute. However, it should be noted that the misunderstanding in question did not relate to the discussions within the cartel, namely the allocation of the project in question, but only to the applicants’ position in the context of that allocation.

233    Regarding the R meeting on 12 May 2005, it is apparent from Mr J.’s notes that that meeting gave rise to discussions concerning a number of projects under the heading ‘Situation on non Pref. Projects/outstanding enquiries’ The following is indicated, for example, concerning the applicants: ‘NKT SK: Denmark: NET AMBA’, ‘IRELAND: 220 kV NKT ? BC [Brugg] present 10 km cable ??? SK, ABB’, ‘Italy: Scandale PP, Gissi Abruzzo, Modugno, Aprilia. Moncalieri 220 kV [nkt cables] offered’.

234    The applicants argue that the projects in Italy were not allocated during the R meeting on 12 May 2005, but through correspondence from which they were excluded, as is apparent from recital 414(d) of the contested decision, which the Commission does not dispute. The Commission observes that the applicants do not argue that such allocations outside of any meeting took place for the projects in Denmark and in Ireland. The applicants explain the lack of proof in that regard by the fact that, either the undertakings involved ultimately did not proceed with such an allocation, or if they did, the evidence is not in the Commission’s case file to which the applicants had access. They also maintain that they cannot bear the burden proving the existence of such allocations.

235    In that regard, it should be noted that the applicants do not argue that all of the projects mentioned in Mr J.’s notes were allocated through correspondence or bilateral meetings from which they were excluded, but that the projects mentioned in Mr J’s notes of a meeting of the R members of the cartel on 12 May 2005 were not allocated during that meeting and that, if such an allocation took place, they had not participated in it. They cannot therefore be criticised for not having demonstrated that all of the projects mentioned in those notes were allocated outside of any meeting.

236    However, since it has been demonstrated that the allocations of projects took place during R meetings before 12 May 2005, it must be held that Mr J’s notes suffice, on their own, to demonstrate that that meeting aimed to discuss the allocation of projects, in particular in the EEA, such as those in Denmark and Ireland.

237    Regarding the R meeting on 17 February 2006, which nkt’s representative attended, the following is indicated in Mr J.’s notes, underneath the mention ‘Europe Markets’, concerning Spain, ‘[nkt cables] Action endesa but settlement with [General Cable] for the future’. Similarly, concerning the Netherlands, it is indicated that ‘Maasvlakie [nkt cables] took it with fight against [Südkabel]’. It is also specified, concerning the United Kingdom ‘Croydon 400 kV [nkt cables] Olympics 400 Kv’.

238    The applicants maintain, without being contradicted by the Commission, that the reference to a project in Spain corresponds to the fact, already mentioned at paragraph 158 of their reply to the statement of objections, that they had won a call for tenders submitted in January 2005 and that the representatives of Nexans France and Pirelli had expressed their frustration in that regard and accused them of having adversely affected the interests of a third party. They assert, moreover, that they did not express their agreement to proceed to a settlement on the subject with the third party in question. Similarly they argue that the reference to the project in the Netherlands does not correspond to an allocation, since they had already won the call for tenders in question and that knowledge was public. They also explain, without being contradicted by the Commission, that the reference to the project ‘Croydon 400 kV’ was a reminder of the fact that they had won the call for tenders concerned on 8 February 2006, which was also public information at the time. Finally, they explain, without it being disputed by the Commission, that the project ‘Olympics 400 kV’ was a future project that was similar to the project ‘Croydon 400 kV’.

239    Moreover, the applicants do not comment, under the heading ‘General Matters’ on the mentions of ‘Security: Little mails + Little com’, ‘Difficulty of coordination: within R and with A (Asked whether 400, 220 possible), EX: Belgium, Spain […]’ and ‘Belgium: Frame contract: 70 kV to [Nexans] and 150 kV [Sagem]’.

240    However, concerning the future project in Austria, the applicants indicate for the mention ‘big project to come [Nexans] [Pirelli] AB[B]’ that those undertakings were potential subcontractors.

241    In that regard, it must be held that it cannot be stated with certainty, on the basis of Mr J.’s notes of the meeting of the R members of the cartel on 17 February 2006, that the framework contract to be carried out in Belgium was actually allocated to Nexans France and Pirelli during that meeting. Under the heading ‘General Matters’, it was indicated, concerning Spain, that ‘[nkt cables] took’, which was probably in reference to the project ‘Endesa’, which suggests that it was merely a reminder of public information.

242    However, it should be observed that the mention of Nexans France, Pirelli and ABB in the reference to a large future project in Austria demonstrates that, even if the allocation of that project might not have been definitive, it was at least discussed during the R meeting on 17 February 2006.

243    Moreover, it must be noted that the applicants’ argument that they were excluded from discussions concerning the allocation of high voltage power cable projects during the period from 10 December 2004 to 17 February 2006, as evidenced from the discussion concerning the allocation of the project ‘Endesa’ and several projects in Italy, is undermined by the finding that their representative also had bilateral contacts with the other R members of the cartel. In an email addressed to Mr J. on 7 October 2005, Mr R.C., an employee of Pirelli, indicated the following:

‘[M.J.]

[M.W. from nkt cables] called me yesterday late afternoon. As usual waffling. I did however understand he has a problem with you in the Country of ‘Fried fish and beer’(?), and with me in the Roast Beef country.

He was wondering whether we could Divonne in the near future.

Your views?

It perhaps could also be an opportunity to have an official/nonofficial [Nexans France]/[Pirelli] session in advance.

Let me know.

[…]’

244    It is thus apparent from the email from Mr R.C. on 7 October 2005 that an employee of the applicants had requested that a meeting of the R members of the cartel be convened in Divonne-les-Bains (France), because there were ‘problems’ with Prysmian and Nexans France in certain countries.

245    The applicants maintain that their employee in question ‘could have mentioned’ at most that they had to face strong competition or have lost the project, but refute that he took part in the in-depth discussions or in the allocation of projects, which is evidenced by the fact that Mr R.C. mentioned ‘waffling as usual’. In addition, they argue that the request for a meeting to be organised in Divonne-les-Bains is not necessarily linked to those problems, which is apparent from the lack of use of a causal adverb to link the two passages in Mr R.C.’s email on 7 October 2005.

246    However, the applicants’ line of argument in that regard is not convincing. First, it is clear from Mr R.C.’s email on 7 October 2005 that the request from an employee of the applicants to organise a meeting in Divonne-les-Bains is linked to problems that he encountered with Nexans France and Prysmian in certain countries and that he probably wished to express during that meeting. It should be noted that Mr R.C. does not specify the problems in question, but requests nonetheless the opinion of Mr J. as the use of the expression ‘your views?’ shows. If the request to organise an R meeting had not been linked to the problems expressed, it is reasonable to think that Mr R.C. would have specified the nature of those problems. Second, the applicants do not explain why their employee requested the organisation of such a meeting in Divonne-les-Bains. If they were afraid of being confronted with strong competition or a loss of projects, it is unlikely that the request for a meeting with all their competitors was innocent. In the reply, they try to argue that in fact it was not their employee in question who had a problem with Nexans France and Pirelli in certain countries, but those companies who had a problem with the fact that the applicants were competing with them. That interpretation seems contrary to the narrative of the telephone conversation by Mr R.C. that specified that he understood that there was a problem. Moreover, if Nexans France and Prysmian had a problem with the applicants, because they considered that they were competing with them in certain territories, it would have been more logical if it were an employee of Nexans France or of Prysmian contacting the applicants and not the reverse. Moreover, even in the event that that interpretation should be upheld, that does not explain why the applicants’ employee requested the organisation of a meeting of the R members of the cartel.

247    The applicants admit moreover that the email from Mr J. on 15 December 2005, mentioned at recital 372(u) of the contested decision, which was addressed to Mr R.C., could have suggested that a project was actually allocated to them between 10 December 2004 and 17 February 2006. In that email, Mr J. stated that he had spoken with Mr N., an employee of Brugg Kabel, and Mr W., an employee of the applicants, and adds that ‘apparently they have agreed between themselves to transfer the [project “Siemens Livorno 400 kV 2500 sqmm 6km”] to [nkt cables]’ and that he ‘will respect unless you tell me otherwise’.

248    The applicants claim that, in reality, there was no allocation of the project ‘Siemens Livorno 400 kV 2500 sqmm 6km’. They maintain that they subcontracted for that project without knowing that it had been allocated beforehand to Brugg Kabel, during the R meeting on 3 March 2004 which their representative did not attend. According to the applicants, Mr W. recalled having contacted Mr J. concerning that project and had indicated to him that their bid had already been submitted and that they thought that they had high chances of obtaining the project concerned. They summarise the situation by indicating that they had unwittingly spoiled an allocation decided by others, but that they did not intend to withdraw their offer. According to the applicants, the email from Mr J. on 15 December 2005 was an attempt to present the situation as the result of an agreement between them and Brugg Kabel in order to calm Mr R.C. who was irritated by their conduct. The applicants also argue that that interpretation is supported by the fact that that email was subsequent to the submission of their bid on 3 November 2005 and by the fact that Mr J. asked Brugg Kabel on 13 March 2006 if they had received the order for the project ‘Livorno’ and Mr K., an employee of Brugg Kabel, replied that they had lost and asked if the applicants had won.

249    In that regard, it should be noted that Mr J.’s notes of the R meeting on 3 March 2004 in which the applicants did not participate, mention several projects in Italy including the project ‘Guidonia P/P 2500 sqmm 6km 400kV’ and the project ‘Siemens Livorno 400 kV 2500 sqmm 6km 400kV’, the reference to the latter accompanied by the specification ‘in principle for Brugg Kabel’. It is apparent from a reading of the correspondence exchanged between Mr J. and Mr N. of Brugg Kabel in December 2005, that it was actually one and the same project, ‘Guidonia = Livorno’, for which preference was initially granted to Brugg Kabel. It is also apparent from that correspondence that, at that time, Brugg Kabel had not yet submitted a bid, since it complained of having to do so while all the other subcontractors had already forwarded their bid. At the same time, it is not disputed by the Commission that, on that date, the applicants had already submitted their bid. They maintain that, during the subcontracting of their bid they were not aware of the fact that Brugg Kabel had obtained preference for that project, which is plausible because their representative had not attended that meeting. That also makes it plausible that Mr J. had, in reply to the concerns expressed by Brugg Kabel in accordance with its role as coordinator, contacted the applicants during the month of December 2005 to request them to observe the preference which Brugg Kabel benefited from on that project, which the applicants refused to do. The applicants also indicate it quite clearly in the application by mentioning that they had unwittingly spoiled the allocation decided by others and that they had refused to withdraw their bid. What happened afterward is less certain. The Commission maintains that Brugg Kabel and the applicants agreed to transfer the project in question to the applicants. The applicants maintain for their part that there was never any such agreement and that Mr J. was merely seeking to appease Prysmian. It should be noted that, for such an agreement to function, Brugg Kabel would have had to make a less attractive bid than that of nkt cables. However, that was still possible, because Brugg Kabel had not yet submitted a bid. The existence of such an agreement would plausibly explain the content of the email from Mr J. on 15 December 2005. It is difficult to understand why Mr J. would have lied in that regard to Mr R.C. in so far as, first, the latter could easily have discovered the truth and, second, Mr J. and Mr C. did not hesitate to strongly criticise the conduct of the cartel members in their exchanges when it displeased them, as can be seen concerning the withdrawal of Mr D.-J. (see paragraph 212 above).

250    Moreover, contrary to what the applicants maintain, the existence of an agreement to transfer the project ‘Siemens Livorno 400 kV 2500 sqmm 6km’ to the applicants is not contradicted by the fact that Mr J. subsequently asked the representative of Brugg Kabel if they had obtained the ‘Italian’ project. It is apparent from the emails exchanged on 13 and 22 March 2006 between Mr K., an employee of Brugg Kabel, and Mr J., that the latter was seeking to obtain information on the situation of several calls for tenders including that project and that Mr K. indicated in that regard ‘Livorno lost ([nkt cables] ?’. First, it should be borne in mind that, besides nkt cables, Brugg Kabel and Nexans France, who were members of the cartel, the subcontractors for that project included at least one third party undertaking, as was indicated in Mr J.’s notes of the meeting of the R cartel members on 3 March 2004. Second, even if the cartel members were meant to provide cover bids, the quality assessment relating to those offers and the final decision would come back to the customer, such that the coordination efforts of the cartel members might not have sufficed to win a call for tenders.

251    However, although the email from Mr J. on 15 December 2005 could be interpreted as meaning that the project ‘Siemens Livorno 400 kV 2500 sqmm 6km’ had been allocated to the applicants, in the absence of other relevant evidence, in particular of bilateral contact between Brugg Kabel and the applicants during which the agreement on the allocation of that project was concluded, it must be stated that it is not possible to reach a definite conclusion in that regard.

252    The fact remains that it is apparent from the examination, carried out at paragraphs 220 to 242 above, of the notes concerning the R meetings organised between 10 December 2004 and 17 February 2006 that the Commission did not err in finding that the applicants had actually participated in meetings during which high voltage power cable projects in the EEA were allocated.

253    Consequently, the fourth part of the present plea must be rejected.

(g)    The absence of participation in the monitoring of the implementation of price and allocation arrangements or awareness, by means of the exchange of position sheets, of market information and the establishment of reporting obligations

254    The applicants maintain that they could not have participated in practices involving the monitoring of the implementation of price and allocation arrangements or been aware of them, since they did not participate in those arrangements, and were not aware of them. They also argue that the Commission does not demonstrate that they participated in those, or were aware of, practices which consisted in the exchange of position sheets and the establishment of reporting obligations concerning high voltage underground power cable projects in the EEA. 

255    In that regard, first, it must be borne in mind that, as was held in the context of the examination of the second and third parts of the present plea, contrary to what the applicants argue, the Commission rightly found that they had participated in the allocation of individual power cable projects in the EEA and that they were aware or should have been aware of the agreements on price.

256    Second, it must be underlined that the practices consisting of exchanging position sheets and information on the market and the establishment of obligations to notify, mentioned in recital 493(h) of the contested decision, do not concern the essential characteristics of the single and continuous infringement within the meaning of the case-law cited at paragraph 168 above, such that the Commission was not required to demonstrate that the applicants participated in or were aware of them.

257    Moreover, it is apparent from Mr J.’s notes, cited at recital 296 of the contested decision, concerning the R meeting on 10 February 2004 in which the applicants do not dispute having participated, that that meeting concerned, in particular, the ‘PS[position sheets]/Shares’, and the ‘obligation to report: to maintain a list: EURO s/s at 400 kV and 200 kV’.

258    The fifth part of the present plea must therefore be rejected.

259    In the light of the foregoing considerations, the third plea in law must be rejected in its entirety as unfounded.

4.      The fourth plea in law, alleging errors of assessment on the Commission’s part concerning the duration of the applicants’ participation in the single and continuous infringement

260    The applicants maintain that the Commission has failed to show that they participated in the cartel continuously from 3 July 2002 to 17 February 2006. They maintain in particular that there is no evidence to show that they were aware of any anticompetitive agreements in the EEA between 3 July 2002 and 10 February 2004 and that they did not participate in the allocation of any project in the context of R meetings from that latter date onwards.

261    The Commission disputes the applicants’ arguments.

262    In that regard, it must be noted that the applicants’ claims as to the duration of their participation in the cartel must be rejected for the same reasons as those given in the context of the examination of the fifth part of the third plea. The present plea must therefore be rejected as unfounded.

263    In light of the foregoing, it must be concluded that the applicants do not demonstrate the existence of irregularities by the Commission justifying the annulment of the contested decision in so far as concerns them.

264    Since the examination of the pleas presented by the applicants has not revealed any illegality affecting the contested decision, the claims for annulment must be rejected in their entirety.

B.      The heads of claim seeking a reduction in the amount of the fine imposed

265    Before examining the applicants’ heads of claim seeking a reduction in the amount of the fine imposed on them, it should be borne in mind that the review of legality is supplemented by the unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the competent Court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. It must, however, be pointed out that the exercise of unlimited jurisdiction is not equivalent to an own-motion review and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts 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 (judgment of 8 December 2011, KME Germany and Others v Commission, C‑389/10 P, EU:C:2011:816, paragraphs 130 and 131).

266    In support of their claims seeking a reduction in the amount of the fine imposed on them, the applicants raise a single plea, which comprises, essentially, five parts. The first part concerns the failure to take account of the applicants’ limited involvement in the cartel. The second part concerns the taking into account of the value of sales attributed to the applicants for sales of 110 kV power cables. The third plea concerns the gravity assessment of the applicants’ conduct, in the context of which the Commission failed to take account of the applicants’ limited participation in the cartel and breached the principle of equal treatment. The fourth plea alleges an error by the Commission in the setting of the relevant multiplier for the duration of the infringement. The fifth plea alleges an error by the Commission in the assessment of the existence of mitigating circumstance for the applicants.

1.      The applicants’ limited involvement in the cartel

267    The applicants maintain that they did not participate in, and were not aware of, all the activities constituting the single and continuous infringement described in the contested decision. Their conduct was limited to the activities described in recital 648 of the contested decision, namely ‘the notification and discussion of [high voltage underground cable] projects in the EEA and [whereby] the parties did not proceed to making [a] formal allocation’. Accordingly, the fine imposed on them should be reduced

268    The Commission disputes the applicants’ arguments.

269    In that regard, it should be noted that the applicants’ arguments seeking to demonstrate that they had not participated in certain elements of the single and continuous infringement or were not aware of them, or that they could not have foreseen the anticompetitive conduct of the other cartel members in which the Commission admitted that they had not participated, but that they were limited to the notification and discussion of underground power cable projects in the EEA without formally allocating them, were all rejected in the context of the third plea.

270    It follows that the applicants cannot complain that the Commission did not reduce the amount of the fine to take into account the fact that they could not have been held liable for all the constituent elements of the single and continuous infringement described in the contested decision.

2.      The value of sales

271    The applicants maintain that their turnover relating to 110 kV power cables should be excluded from the calculation of the basic amount of the fine. In support of that assertion they argue that the other cartel members infringed competition law in connection with that voltage class, but that they did not participate in that aspect of the infringement. The applicants also allege that turnover from small cable projects and consortium projects should also be excluded from the calculation of the value of sales because such projects were not covered by the cartel. The same applies to turnover from cables sold separately (‘pure sales’).

272    The Commission disputes the applicants’ arguments.

273    In that regard, it should be noted that, as was held at paragraphs 176 and 177 above, the cartel included sales of power cables with a voltage of 110 kV. It would have been contrary to point 13 of the 2006 Guidelines on setting fines as interpreted in the judgment of 11 July 2013, Team Relocations and Others v Commission (C‑444/11 P, not published, EU:C:2013:464), and in the judgment of 12 December 2014, H & R ChemPharm v Commission (T‑551/08, EU:T:2014:1081), to exclude the turnover for sales of power cables with a voltage of 110 kV from the calculation of the basic amount of the fine. The same applies for smaller power cable projects and consortium projects, since the Commission rightly considered that the cartel did not exclude any specific category of sales.

274    Regarding the sales of ‘pure’ power cables, namely power cables sold outside of any project, it suffices to note, as the Commission has done, that the applicants themselves admit to not having made such sales in 2004, the reference year for the calculation of the basic amount of the fine imposed on them, such that, even if that argument were well founded, it would not result in a new calculation of the basic amount of the fine.

3.      The gravity assessment of the applicants’ conduct in calculating the fine

275    The applicants argue that the proportion of 19% of the value of sales taken to calculate the fine imposed on them, first, does not reflect the fact that they were involved in only a very limited part of the single and continuous infringement described in the contested decision, as the Commission itself admitted in that decision, and second, constitutes a breach of the principle of equal treatment, taking account of the percentage applied for the large Japanese producers.

276    The applicants also complain that the Commission failed to distinguish, when considering combined market share, between high voltage submarine power cables, for which the major producers and ABB made up almost the entire supply side of the market, and high voltage underground power cables, for which the cartel members never made up the entire supply side of the market, contrary to what the contested decision states.

277    The applicants also complain that the Commission disregarded the fact that arrangements relating to high voltage submarine power cables covered the whole of the EEA, whereas the arrangement concerning high voltage underground power cables had a more local and ad hoc scope. Lastly, they complain that the Commission disregarded the fact that the infringement they are alleged to have committed had a far lesser anticompetitive effect than the infringement committed by the producers that participated in the implementation of the entire single and continuous infringement described in the contested decision.

278    The Commission disputes the applicants’ arguments.

279    First, regarding the applicants’ argument that the Commission breached the principle of equal treatment with regard to the European producers by taking a proportion of the value of sales of 19% for calculating the fine to be imposed on the R members of the cartel, while taking a proportion of the value of sales of 17% for calculating the fine to be imposed on the A members of the cartel, it should be borne in mind that, each time that the Commission decides to impose fines pursuant to competition law, it is required to observe the general principles of law, which included the principle of equal treatment as interpreted by the EU judicature. That principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgments of 27 June 2012, Bolloré v Commission, T‑372/10, EU:T:2012:32519, paragraph 85 and the case-law cited, and of 19 January 2016, Mitsubishi Electric v Commission, T‑409/12, EU:T:2016:17, paragraph 108 and the case-law cited).

280    Concerning the gravity assessment of the conduct of the European undertakings compared to the conduct of the Asian undertakings, in particular the Japanese undertakings, it should be borne in mind that the Commission qualified the infringement identified by the contested decision as a single and continuous infringement comprising two configurations, namely the ‘A/R configuration’ of the cartel and the ‘European cartel configuration’. The first of those configurations related, first, to an agreement on the ‘home territory’ pursuant to which the Japanese and South Korean undertakings committed to leaving the European ‘home territory’, reserved for the R cartel members, in exchange for a reciprocal commitment by those members to leave the Japanese and South Korean ‘home territory’ and, second, an allocation of projects localised in most of the rest of the world, called the ‘export territories’. The second of those configurations aimed to allocate between the R members of the cartel the projects localised in the European ‘home territory’ and the projects allocated to those members in the ‘export territories’ (see paragraph 12 above).

281    The reasons for which the Commission submitted that the two cartel configurations were part of the single and continuous infringement are expressed in recitals 527 to 619 of the contested decision. In that context, concerning the condition for the existence of a single aim linking those configurations, at recital 534 of the contested decision, the Commission found the following:

‘The European cartel configuration’ (as well as the allocation among the Asian companies) was subordinate to the almost global arrangement and gave effect to it. Indeed, at the European R meetings, the European coordinator would relay the discussions that took place at the A/R meeting. To this end, the parties would often organise R meetings shortly after an A/R meeting ... Moreover, at the R meetings, the parties expressed their interest in projects in the export territories that were to be discussed in the A/R meetings. Equally, the parties to the A/R meetings were also informed of the main discussions in the European cartel configuration … The European cartel configuration formed therefore an integral part of the overall plan.’

282    The Commission held the majority of the Japanese and South Korean undertakings liable for the integral part of the cartel, including its ‘European configuration’. In particular, it acknowledged, for the entirety of the cartel, the liability of the Japanese undertakings classed in the core of the cartel, namely Sumitomo Electric industries, Hitachi Cable and their joint venture J-Power Systems as well as Furukawa Electric, Fujikura and their joint venture Viscas,

283    However, at recital 537 of the contested decision, the Commission nuanced the level of participation of the various undertakings. It held the following:

‘The core group of undertakings (Nexans, Pirelli/Prysmian, Furukawa, Fujikura and Viscas, Sumitomo [Electric Industries], Hitachi [Cable] and [J-Power Systems]) was the same for both [submarine and underground] power cables, and applied both the home territory [arrangement] and the arrangement for the allocation of projects in the export territories. While for obvious reasons the Japanese and Korean companies were not involved in the European cartel configuration, Nexans and Pirelli/Prysmian were active in both.’

284    It is the logical step from that finding that the Commission concluded, at recital 999 of the contested decision, identified in the applicants’ argument, that the infringement committed by the European undertakings had to be considered more harmful than that committed by the Japanese undertakings and that thus, due to their involvement in the ‘European cartel configuration’, the proportion of the value of sales made by the European undertakings, taken for calculating the basic amount of the fine to be imposed on them, had to be increased by 2%.

285    In that regard, it must be held that the fact that, as the applicants imply, the participation of the Japanese undertakings was similar to that of the European undertakings concerning the participation in the ‘European cartel configuration’, even if it were the case, is not of such nature as to call into question the Commission’s finding that the allocation of projects in the EEA constituted an additional element that merited a penalty of an additional percentage due to the gravity of the infringement.

286    First, it should be noted that, as well as the ‘A/R cartel configuration’, within which the European and Asian undertakings agreed, in particular, not to penetrate each other's respective ‘home territories’, the European producers, including the applicants, distributed the various power cable projects allocated to the R cartel members. In particular, as is apparent from recital 73 of the contested decision, such a distribution concerned both the allocation of projects in the ‘export territories’, operated in the context of the ‘A/R cartel configuration’, and the allocation of projects to the R members of that cartel in accordance with the ‘home territory’ agreement, namely the projects in the European ‘home territory’. Second, it should be noted that, even if the distribution within the ‘A/R cartel configuration’ and the distribution of projects within the ‘European cartel configuration’ were closely linked, as the Commission explains at recital 534 of the contested decision, the latter configuration involved, in the present case, an additional commitment to distribute projects, which went beyond the existing rules of allocation in the ‘A/R cartel configuration’.

287    Moreover, contrary to what the applicants maintain, there is no doubt that the distribution of high voltage underground and submarine power cable projects within the ‘European cartel configuration’ increased the harm to competition caused in the EEA by the ‘A/R cartel configuration’.

288    It was therefore justified, as the Commission maintains, that the gravity assessment of the conduct of the producers participating in the ‘European cartel configuration’, in particular the European producers, should reflect the additional damage caused within the EEA.

289    Therefore, the applicants’ argument that, essentially, the Commission breached the principle of equal treatment by upholding, with regard to the European producers, a proportion of the value of sales of 19% for calculating the fine to be imposed on the R members of the cartel, while only upholding a proportion of the value of sales of 17% for calculating the fine to be imposed on the A members of that cartel, even though the participation of the Japanese undertakings was similar to that of the European undertakings concerning the participation in the ‘European cartel configuration’, must be rejected as ineffective.

290    Such an argument, if it were well founded, would be capable of justifying an increase in the percentage of the value of sales to take for the Japanese undertakings. However, that fact is irrelevant as to the proportion of the value of sales taken with regard to the applicants in order to take account of the gravity of their conduct, since the principle of equal treatment does not found an entitlement to the non-discriminatory application of unlawful treatment (see, to that effect, judgment of 11 September 2002, Pfizer Animal Health v Council, T‑13/99, EU:T:2002:209, paragraph 479).

291    Second, regarding the applicants’ argument that the Commission wrongly failed to take account of the fact that they had participated in a more limited infringement than that in which the other cartel participants participated, it should be noted, first, that, as was held in the context of the examination of the third plea, the Commission did not err in finding that, since the applicants had participated in certain elements of the cartel and were aware, or should have been aware, of other elements of the cartel, they could be held liable for the entirety of the single and continuous infringement as defined in the contested decision. Second, the Commission in fact took account of the applicants’ participation in relation to that of the other cartel participants in the context of the gravity assessment of the infringement, by taking the view that, as the anticompetitive effects of the ‘A/R cartel configuration’ were increased by the ‘European cartel configuration’, the fact that they had participated in those two configurations justified an additional percentage of 2% in the context of the proportion of the value of sales to take for calculating the fine to be imposed on them.

292    In so far as the applicants’ arguments must be interpreted as complaining that the Commission did not take account of their substantially reduced participation in the context of calculating the fine, it must be held that that argument is lacking in fact, since the Commission found, in the context of the assessment of mitigating circumstances, that their degree of involvement distinguished the applicants from the core members of the cartel and was sufficient to qualify them as ‘fringe players’, consequently granting them a reduction of 10% of the amount of the fine.

293    Third, regarding the additional percentage of 2%, in the context of the proportion of the value of sales to take for calculating the fine to be imposed that was applied to the applicants because of their combined market share and the geographic scope of the infringement, it must be noted that the Commission concluded at recital 1003 of the contested decision that the cartel members represented the principal operators and covered almost all of the market. The applicants do not produce any evidence capable of calling the accuracy of that conclusion into question. In any event, point 22 of the 2006 Guidelines on setting fines requires the Commission to take account of the ‘combined market share of all the undertakings concerned’. The applicants do not put forward any reason for considering that the cartel members do not represent a high proportion of the market. That, combined with the vast geographic scope of the cartel, justified the additional 2% identified at recitals 1003 and 1004 of the contested decision.

294    The applicants claim not to have had the possibility of making observations on the facts relied on by the Commission in the contested decision as to the combined market shares. However, it must be held that, at paragraph 791 of the statement of objections, it is explicitly indicated that the Commission would take account of the combined market shares. Moreover, at paragraphs 91 and 92 of that statement, the question of market shares is mentioned, citing documents from ABB, Prysmian and Nexans France, which refer to very large market shares both for underground power cables and submarine power cables. Thus, that statement provided the applicants with information on the significance of the market shares. Contrary to what they maintain, the applicants thus had the opportunity to make observations on the market shares in their reply to the statement in question.

295    Moreover, the applicants dispute certain factual elements, cited in the footnotes 38 to 40 of the contested decision, for the purpose of demonstrating that the addressees of that decision represented a large market share. The applicants’ criticisms do not, however, appear to be capable of demonstrating that the Commission erred in the assessment of the combined market shares.

296    Thus, in order to prove that the market for high voltage submarine and underground power cables was limited, footnote 38 of the contested decision mentioned four facts, including a list of the members of the International Cablemakers Federation. The applicants assert that the suppliers were not all members of that body, but, as the Commission notes, they do not provide any evidence concerning the market share held by the non-members.

297    Footnote 39 of the contested decision cites evidence indicating that, in certain large Member States, two or three producers represented most of the market. The applicants argue that that footnote reverses the market shares in Italy and Germany. However, that does not change the fact that, on the two markets, the addressees of that decision represented the vast majority of sales.

298    In footnote 40 of the contested decision, the Commission cites five pieces of evidence, including a report, for the purpose of establishing that the addressees were considered to be market leaders. The applicants maintain that the figures contained in that report concern only submarine power cables. However, it must be held that that assertion is erroneous. Page 96 of that report identifies the main actors on the market for submarine power cables but also on the market for ‘distribution cables’, which are underground power cables. Moreover, the figures cited at paragraphs 91 and 92 of the statement of objections cover both underground power cables and submarine power cables, as do the documents mentioned in that footnote.

299    In the reply, the applicants argue that less than half of the 10 subcontractors of an Icelandic call for tenders relating to 245 kV power cables, attended the meetings of the R cartel members, which shows the relative size of the suppliers not participating in the cartel within the high voltage underground power cables section. However, conclusions as to the situation on the whole of the market in the EEA during the period in which the cartel was implemented cannot be inferred from that single example.

300    It follows that the applicants do not demonstrate that the Commission erred as to the estimate of the combined market share held by the cartel participants in the EEA.

301    Fourth, regarding the applicants’ argument that the Commission should have taken account of the fact that the geographic scope of the cartel was different for underground power cables and submarine power cables, it should be noted that they do not adduce any evidence in that regard.

302    Moreover, that argument relies on the premiss that the infringement in question can be divided, which effectively calls into question the existence of a single and continuous infringement. However, it must be pointed out that that argument, presented in the first part of the third plea, has been rejected as unfounded.

303    Fifth, regarding the applicants’ argument that the Commission wrongly failed to take account of the more limited potential effect on competition of the infringement that they committed, which would justify limiting the gravity percentage applied for them, it should be noted that that forms part of those circumstances that the Commission is required to take account of in the assessment of mitigating circumstances, in accordance with point 29 of the 2006 Guidelines on setting fines, and not in the assessment of the gravity of the infringement itself.

304    Consequently, it must be held that the Commission did not err in its assessment of the gravity of the infringement, by setting the proportion of the value of sales for calculating the fine imposed on the applicants at 19%.

4.      The relevant multiplier for the duration of the applicants’ participation in the infringement.

305    The applicants complain that the Commission applied a multiplier of 3.58 to reflect the duration of their participation in the infringement, which does not take into account the fact that their participation in the infringement was in this case limited to the period from 10 December 2004 to 17 February 2006.

306    In that regard, it should be borne in mind that, as was held in the context of the examination of the fifth part of the third plea, the Commission did not err in finding that the applicants participated in the single and continuous infringement from 3 July 2002 to 17 February 2006. Since the applicants do not adduce additional evidence capable, in the present case, of justifying a modification of the multiplier used by the Commission to calculate the basic amount of the fine imposed on them by the contested decision, the fourth part of the present plea must be rejected.

5.      Mitigating circumstances

307    The applicants maintain that the Commission failed to grant them an adequate reduction on account of the mitigating circumstance that their involvement was limited, which the Commission recognised, and that it ought also to have taken other mitigating circumstances into account.

308    The Commission disputes the applicants’ arguments.

309    In that regard, it must be held that the individual assessment of the applicants’ role was based on objective reasons and an overall assessment of the level of participation in relation to all the other addressees and that a reduction of 10% of the amount of the fine imposed on them by the contested decision appropriately reflects the applicants’ role in the cartel in relation to that of the other participants.

310    Moreover, the Court considers that it cannot grant an additional reduction on the ground of the applicants’ ‘competitive conduct’, as they have not demonstrated that they significantly disturbed the cartel or that their participation in the cartel resulted from ‘negligence’, within the meaning of point 29 of the 2006 Guidelines on setting fines, since numerous items of proof of their willingness to participate in the single and continuous infringement have been adduced by the Commission.

311    The fifth part of the present plea must therefore be rejected as unfounded, as must the fifth plea in its entirety.

312    In the light of the foregoing considerations, the action must be dismissed in its entirety.

 Costs

313    Under Article 134(1) 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 applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders NKT Verwaltungs GmbH and NKT A/S to pay the costs.

Collins Kancheva Barents

Delivered in open court in Luxembourg on 12 July 2018.

E. Coulon

Registrar President

Table of contents

I. Background to the dispute

A. The applicants and sector concerned

B. Administrative procedure

C. Contested decision

1. The infringement at issue

2. The liability of the applicants

3. The fine imposed

II. Procedure and forms of order sought

III. Law

A. The claim for annulment

1. The first plea in law, alleging breaches of the rights of defence and of the principle of equality of arms

2. The second plea in law, alleging an incorrect definition of the territorial scope of the single and continuous infringement and erroneous application of the criterion of effects in order to justify the application of Article 101 TFEU

3. The third plea in law, alleging a manifest error of assessment in that the Commission concluded that nkt cables had participated in a single and continuous infringement and had been aware of all of its constituent elements

(a) Preliminary observations

(b) The reliability of Mr J.’s notes

(c) The absence of any single and continuous infringement

(1) The fact that the single and continuous infringement only covers power cables that form part of a project

(2) The existence of separate infringements, concerning high voltage underground power cables and high voltage submarine power cables

(d) The applicants’ lack of awareness of certain elements of the single and continuous infringement

(1) The applicants’ lack of awareness of elements of the infringement relating to high voltage submarine power cable projects

(2) The applicants’ lack of awareness of the ‘home territory’ agreement

(3) The applicants’ lack of awareness of collective refusal to supply accessories or technical assistance to certain competitors

(4) The lack of awareness of agreements on prices and cover bids for high voltage underground power cable projects in the EEA

(5) The applicants’ lack of awareness of conduct relating to projects involving high voltage underground power cables with voltages of 110 kV and above

(e) The lack of evidence of the applicants’ participation in the allocation of customers and specific territories within the EEA

(f) The lack of evidence of the applicants’ participation in the allocation of, or the exchange of information concerning, high voltage underground power cable projects within the EEA between 3 July 2002 and 17 February 2006

(1) The period prior to 10 February 2004

(2) The period between 10 February 2004 and 10 December 2004

(3) The period between 10 December 2004 and 17 February 2006

(g) The absence of participation in the monitoring of the implementation of price and allocation arrangements or awareness, by means of the exchange of position sheets, of market information and the establishment of reporting obligations

4. The fourth plea in law, alleging errors of assessment on the Commission’s part concerning the duration of the applicants’ participation in the single and continuous infringement

B. The heads of claim seeking a reduction in the amount of the fine imposed

1. The applicants’ limited involvement in the cartel

2. The value of sales

3. The gravity assessment of the applicants’ conduct in calculating the fine

4. The relevant multiplier for the duration of the applicants’ participation in the infringement.

5. Mitigating circumstances

Costs

* Language of the case: English.