Guardian Europe Sarl v European Commission [2012] EUECJ T-82/08 (27 September 2012)

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(Competition – Agreements, decisions and concerted practices – Market for flat glass in the EEA – Decision finding an infringement of Article 81 EC – Price-fixing – Evidence of the infringement – Calculation of the amount of the fines – Exclusion of captive sales – Obligation to state the reasons on which the decision is based – Equal treatment – Mitigating circumstances)

European Commission, represented by F. Castillo de la Torre and R. Sauer, acting as Agents,

APPLICATION for annulment of Commission Decision C (2007) 5791 final of 28 November 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39165 – Flat glass), in so far as it concerns the applicants, and for a reduction in the amount of the fine imposed on them by that decision,

1 The applicants, Guardian Industries Corp. and Guardian Europe Sàrl, are part of the Guardian Group, which is active in the production of flat glass and automotive glass. Guardian Industries is the ultimate parent company of the Guardian Group and indirectly owns 100% of the capital in Guardian Europe.

2 On 22 and 23 February and 15 March 2005, the Commission of the European Communities carried out unannounced inspections at the premises of, inter alia, Guardian Flachglas GmbH, Guardian Europe and Guardian Luxguard I SA.

3 On 2 March 2005, Asahi Glass Co. Ltd and all its subsidiaries, including Glaverbel SA/NV, which then became AGC Flat Glass Europe SA/NV (‘Glaverbel’), submitted an application for immunity from fines or, in the alternative, a reduction of fines, pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

4 On 3 January 2006, the Commission initiated proceedings pursuant to Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and informed the parties to that effect on 6 March 2006.

5 On 10 February 2006, the Commission sent requests for information to a number of companies, including the applicants. Guardian Europe replied to that request on 10 March 2006.

6 On 9 March 2007, the Commission adopted a statement of objections, which was notified on 13 and 14 March 2007 to a number of companies, including the applicants.

7 On 28 November 2007, the Commission adopted Decision C (2007) 5791 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39165 – Flat glass) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 24 May 2008 (OJ 2008 C 127, p. 9), and which was notified to the applicants on 3 December 2007.

8 The contested decision was also notified to Asahi Glass, Glaverbel, Pilkington Deutschland AG, Pilkington Group Ltd, Pilkington Holding GmbH (taken together, ‘Pilkington’), Compagnie de Saint-Gobain SA and Saint-Gobain Glass France SA (taken together, ‘Saint-Gobain’).

9 In the contested decision, the Commission stated that the companies to which that decision was addressed had participated in a single and continuous infringement of Article 81(1) EC, which covered the territory of the European Economic Area (EEA) and consisted in the fixing of price increases, minimum prices, target prices, price freezing and other commercial conditions in respect of sales to independent customers of four categories of flat glass products used in the building industry, namely float glass, low-e glass, laminated glass and unprocessed mirrors, as well as in the exchange of commercially sensitive information.

10 The applicants were found guilty of the infringement for the period from 20 April 2004 to 22 February 2005 and a fine of EUR 148 million was imposed on them jointly and severally.

11 By application lodged at the Registry of the General Court on 12 February 2008, the applicants brought the present action.

12 On hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, put written questions to the parties. The parties provided their answers to those questions within the prescribed period.

13 On 8 February 2012 the applicants sent to the Court a table relating to the methods for calculating the fine which had been imposed on them. On 10 February 2012, the Commission submitted observations on that document, which were sent to the applicants on the same day.

14 The parties presented oral argument and replied to the oral questions put by the Court at the hearing on 13 February 2012.

17 In support of the head of claim seeking partial annulment of the contested decision, the applicants put forward a single plea in law, alleging errors of fact concerning the duration of their participation in the cartel and the geographic scope of the cartel. In support of their head of claim seeking a reduction in the amount of the fine, the applicants put forward three pleas in law, alleging, first, the necessity of a reduction in the amount of their fine as a result of the partial annulment of the contested decision, secondly, infringement of the principle of non-discrimination and of the obligation to state reasons concerning the calculation of the fine and, thirdly, an error of assessment having regard to their very limited and passive role in the infringement and infringement of the principle of non-discrimination.

18 Furthermore, at the hearing the parties disputed the admissibility of a number of documents.

19 At the hearing, the applicants disputed the admissibility of the Commission’s letter of 10 February 2012 on the ground that it contained figures which had never previously been communicated to them.

20 The Commission takes the view that that letter, which constitutes a supplement to its reply of 23 January 2012 to the questions which the Court had put to it, is admissible.

21 It must be pointed out that that letter reached the Court outside of the period allowed to the Commission, but that it was, however, communicated to the applicants on 10 February 2012. That letter contains observations on a document submitted by the applicants on 8 February 2012 as well as a supplement to the Commission’s reply to a written question put by the Court and requiring a reply before the hearing relating to the method for calculating the amount of the fine proposed by the applicants if the captive sales were excluded. In that letter the Commission thus stated, first, that the figures in table 1 of the statement of objections did not relate only to internal sales, but also to sales of certain categories of glass which were not ultimately included in the contested decision and, secondly, stated the ratio between the total sales of the members of the cartel and their internal sales.

22 In view of the content of that letter and of the fact that it was sent to the applicants, which were therefore able to put forward their observations regarding it at the hearing, it must be held that the document in question is admissible and that the plea of inadmissibility raised by the applicants must be rejected.

Admissibility of the references to documents which had not been produced before the Court

23 At the hearing, the Commission disputed the admissibility of certain references made by the applicants in their oral arguments to documents which had not been produced before the Court on the ground that those documents are not part of the Court’s case-file. It stated that this was the case in particular with regard to the applicants’ reply to the statement of objections.

24 Article 44(1) of the Rules of Procedure, relating to the particulars which an application submitted to the Court must contain, provides that an application must state ‘where appropriate, the nature of any evidence offered in support’. Similarly, according to Article 46(1) of the Rules of Procedure, the defence must state the nature of any evidence offered by the defendant. Those provisions are supplemented by Article 48(1) of the Rules of Procedure, according to which a party may offer further evidence in its reply or rejoinder.

25 Furthermore, under Article 48(2) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.

26 In the present case, however, the applicants did not intend either to adduce further evidence or to put forward a new plea following the closure of the written procedure and they merely referred, during the oral procedure, to certain arguments based on documents which had not been produced before the Court. The plea of inadmissibility raised by the Commission must therefore be rejected and it must be held that it is, by contrast, for the Court to assess the arguments set out by the applicants at the hearing in the light of the evidence in the case-file.

27 Furthermore, in the circumstances of the present case, the last plea of inadmissibility put forward by the applicants during the hearing, relating to references made by the Commission, in the defence and in its reply to the written questions put by the Court, to Pilkington’s reply to the statement of objections, must be examined after all the pleas in law put forward by the applicants have been examined.

28 The applicants put forward a single plea in law in support of their head of claim seeking the partial annulment of the contested decision, alleging errors of fact concerning the duration of their participation in the cartel and the geographic scope of the cartel.

29 The applicants complain that the Commission did not establish, first, that they joined the cartel prior to 11 February 2005 and, secondly, that it extended to the whole of the territory of the EEA. The evidence adduced by the Commission in that regard is therefore ambiguous and contradictory, and relies on biased, vague and uncorroborated testimony as well as on inferences based on later events.

The first part, alleging an erroneous assessment of the duration of the applicants’ participation in the infringement

30 The Commission found the applicants guilty of the infringement in respect of the period from 20 April 2004 to 22 February 2005, basing its finding on various items of evidence, namely documents seized in the course of inspections, in part supported by oral statements and documents provided by Glaverbel in the context of a leniency application, and on replies to requests for information from several undertakings. The Commission thus took the view that the applicants had begun to participate in collusive practices as from the meeting of 20 April 2004 held in Germany between their representative and that of Pilkington, in the course of which Pilkington’s representative informed the applicants’ representative of the collusive arrangements with Saint-Gobain and Glaverbel. To reach that conclusion, the Commission relied in particular on two pages of handwritten notes seized at the premises of Pilkington during unannounced investigations (recitals 155 to 188 of the contested decision). The Commission took the view that the applicants had continued to participate in collusive practices by receiving, on 15 June 2004, a call from Pilkington informing them of the agreement reached regarding the Italian market, of which they approved (recitals 189 to 196 of the contested decision). Furthermore, the Commission found that the applicants had participated with Glaverbel, Pilkington and Saint-Gobain (‘the three other members of the cartel’) in a meeting in Luxembourg on 2 December 2004, in the course of which decisions relating to price increases, minimum prices and other commercial conditions relating to the sale of flat glass products in several countries throughout Europe were taken, basing that finding on handwritten notes seized at Pilkington’s premises during unannounced investigations and on extracts from agendas (recitals 197 to 264 of the contested decision). Lastly, the Commission found that the applicants and the three other members of the cartel had met on 11 February 2005 in Paris (France) in order to agree on price increases and other commercial conditions for the sale of flat glass products in a number of countries of the European Community and to exchange sensitive commercial information (recitals 265 to 296 of the contested decision).

31 The applicants take the view that they did not participate in the cartel prior to 11 February 2005. They thus challenge the assertion that the meetings of 20 April and 2 December 2004 and the telephone call of 15 June 2004 could have constituted indicia establishing their participation in the cartel. They maintain that those contacts may well have been part of a ‘vetting process’ for the three other members of the cartel before attempting to invite them to a real cartel meeting. The applicants do, however, acknowledge that they participated in the meeting of 11 February 2005.

32 First, it must be borne in mind that, in accordance with the provisions of Article 2 of Regulation No 1/2003 and with the case-law, the burden of proving an infringement of Article 81(1) EC rests on the authority alleging the infringement, which must adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58, and Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 86). Furthermore, where there is doubt, the benefit of that doubt must be given to the undertakings accused of the infringement (see, to that effect, Case 27/76 United Brands and United Brands Continentaal v Commission [1978] ECR 207, paragraph 265) and, in accordance with the principle of the presumption of innocence, the Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine (Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraph 177). The Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place. However, 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 (JFE Engineering and Others v Commission, paragraphs 179 and 180).

33 As the Court has already pointed out, it is normal for the activities relating to anti-competitive practices and agreements to take place in a clandestine fashion, 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, 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 anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraphs 55 to 57, and Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I-729).

34 Where the Commission’s reasoning is based on the supposition that the facts established cannot be explained other than by concerted action between undertakings, it is sufficient for the applicants to prove circumstances which cast the facts established by the Commission in a different light and thus allow another explanation of the facts to be substituted for the one adopted by the Commission (Joined Cases 29/83 and 30/83 Compagnie royale asturienne des mines and Rheinzink v Commission [1984] ECR 1679, paragraph 16, and Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraph 725).

35 However, the Commission rightly states that that case-law is not applicable where its findings are based on documentary evidence (Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 34 above, paragraphs 725 to 727; JFE Engineering and Others v Commission, cited in paragraph 32 above, paragraphs 186 and 187; and judgment of 12 September 2007 in Case T-36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 72).

36 It is in the light of those principles that the applicants’ arguments that they did not participate in the cartel prior to 11 February 2005 must be examined.

37 The applicants call into question, first of all, the anti-competitive object of the meeting of 20 April 2004 and the evidential value of the notes of Mr B., an employee of Pilkington who participated in that meeting. They therefore submit, first, that the meeting of 20 April 2004 between Mr F., an employee of Guardian Europe, and Mr B. did not have an anti-competitive object, contrary to the secret meetings held by the three other members of the cartel on 9 January, 2 March and 15 June 2004 and on 11 February 2005. They state that that meeting took place in a public restaurant, had matters of common interest as its object and that Mr F. requested reimbursement of the bill for the dinner. Secondly, as regards Mr B.’s notes relating to that dinner, on which the Commission relies in the contested decision, they state that they are not contemporaneous with the dinner and do not constitute minutes of it because they contain Mr B.’s personal musings. Furthermore, their content should be treated with caution because they were written in English by a person who is not a native English speaker, who is inexperienced and who could have made mistakes in setting out the remarks made at the dinner.

38 It is necessary to examine, in the first place, Mr. B.’s notes relating to the meeting of 20 April 2004 and, in the second place, the anti-competitive object of that meeting.

39 As regards Mr. B.’s notes, the applicants dispute, first, that they are contemporaneous with that meeting, inasmuch as Mr F. does not recall having seen Mr B. taking notes at the dinner. In that regard, it must be pointed out that the title, ‘Meeting Minutes’, and the date, ‘20/04/2004’, of those notes constitutes evidence confirming the Commission’s assessment that the notes constitute minutes of the discussion which took place between Mr F. and Mr B. on 20 April 2004 and are contemporaneous with that meeting (recital 157 of the contested decision). The level of detail and the wording of those notes also confirm that assessment and contradict the applicants’ argument that they were written by Mr B. after that meeting and that he added personal musings to them. It seems unlikely that Mr B. would have been able to recall the information exchanged during the dinner with such a degree of precision. Consequently, having regard to those factors, the applicants’ assertion that Mr F. does not recall having seen Mr B. taking notes at the dinner, even if well founded, cannot, on its own, suffice to call into question the Commission’s assessment that those notes are contemporaneous with the meeting of 20 April 2004.

40 The applicants dispute, secondly, the evidential value of those notes by claiming that they contain Mr B.’s personal musings and were written by a person who is not a native English speaker and lacks experience. The applicants have not, however, provided any evidence in support of those claims. Furthermore, they themselves admit that those notes are neat and well-structured, features which constitute the characteristics of the minutes of a meeting. Furthermore, contrary to what the applicants claim, those notes, designated by Mr B. as ‘Meeting Minutes’, do not contain Mr B.’s personal musings, but show the existence of an exchange of information between Mr B. and Mr F. The information provided by Mr B. comes first (entitled, for example, in respect of the United Kingdom, Ireland and Germany, ‘Price increase agreed’), while that provided by Mr F. follows and appears, in the case of the United Kingdom, Ireland and Germany, under the heading ‘Information’. The notes also contain the action to be taken following that exchange of information (for example, in respect of Germany, ‘Guardian to confirm S.glas Price’ and, in respect of Italy, ‘We need to evaluate stock days in Merchants in high & low season to best manage a price increase’). The applicants’ arguments must therefore be regarded as mere conjectures which are not sufficient to call into question the evidential value of those notes.

41 Furthermore, it is apparent from Mr B.’s notes that sensitive information was exchanged at that meeting. Thus, Mr B. informed Mr F. of the upcoming price increases in the United Kingdom, Ireland and Germany agreed upon by the three other members of the cartel, while Mr F., in return, provided information concerning the applicants’ position in those markets (recitals 159 to 167 of the contested decision).

42 It is also apparent from those notes that Mr B. informed Mr F. of the discussions which had taken place between the three other members of the cartel on prices and possible price increases in the Italian market, in which a price increase had not yet been planned, and that Mr F. stated that, in the eventuality of a price increase in the Italian market, he would agree either not to sell in that market for a period of two months in order to enable the three other members of the cartel effectively to push such a price increase through or to join them in raising his prices three months later, thereby allowing the manufacturing centre which supplied the Italian market to apply that increase.

43 Nevertheless, the applicants allege that the information provided by Mr F. at that meeting was not sensitive because it was either known to Pilkington or contained deliberate misinformation. The sensitive nature of the information provided by Mr F. to Mr B. is, however, apparent from its very content. That information relates to the applicants’ commercial strategy, which should not normally be known to competitors. That is, inter alia, true of the information relating to the running of the plant in Goole (United Kingdom), of the number of its customers in the United Kingdom and Ireland, or of its interest in small customers attracted by the ‘48 hour’ service. The same is true of the information relating to the prices applied to certain customers, of his impressions relating to the interest in adapting price increases in Germany to the size of customers and to the conduct to be adopted in the eventuality of a price increase in Italy. Furthermore, the fact that Mr B. recorded that information in his notes contradicts the applicants’ claim that it was known to competitors.

44 Lastly, even if it were established that some of the information conveyed by Mr F. contained inaccuracies, such as the fact that the number of customer accounts was 130, and not 150, or that the plant in Goole was running at ‘low capacity’ and not at ‘lowest load possible’, that would have no effect on the assessment of its evidential value. Furthermore, contrary to what Mr F. appears to state in his affidavit of 10 May 2007, the reference to ‘market 135 000 tons’ in the United Kingdom does not constitute an incorrect piece of information, but one of the conditions set by the members of the cartel for carrying out a price increase, namely an estimation of the volume of flat glass which the applicants would have to sell in the United Kingdom in 2004 (recital 161 of the contested decision).

45 It follows from the foregoing that the Commission was entitled to find that an exchange of sensitive information had taken place at that meeting between Mr F. and Mr B. as regards the United Kingdom, Ireland and Germany and the applicants’ strategy in the event of a price increase in Italy. As submitted by the Commission, that exchange of information constitutes, at the very least, a concerted practice. It must be borne in mind that any direct or indirect contact between economic operators of such a kind as to disclose to a competitor the conduct that the economic operator concerned has decided upon or envisaged on the market, where the object or effect of such contact is to create conditions of competition which would not correspond to the normal conditions of the market, constitutes a concerted practice prohibited by Article 81(1) EC (Commission v Anic Partecipazioni, cited in paragraph 32 above, paragraph 117; Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 160; Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491 (‘the Cement judgment’), paragraph 1852). That form of coordination between undertakings knowingly substitutes for the risks of competition practical cooperation between them (see, to that effect, Case T-53/03 BPB v Commission [2008] ECR II-1333, paragraph 179, and judgment of 2 February 2012 in Case T-83/08 Denki Kagaku Kogyo and Denka Chemicals v Commission, not published in the ECR, paragraph 67). In order to prove that there has been a concerted practice, it is therefore not necessary to show that the competitor in question has formally undertaken, in respect of one or several other competitors, to adopt a particular course of conduct or that the competitors have colluded over their future conduct on the market. It is sufficient that, by its statement of intention, the competitor eliminated or, at the very least, substantially reduced uncertainty as to the conduct to expect from it on the market (Cement, paragraph 1852; BPB v Commission, paragraph 182; and Denki Kagaku Kogyo and Denka Chemicals v Commission, paragraph 67).

46 Consequently, the arguments seeking to challenge the anti-competitive object of that meeting must be rejected as unfounded. Having regard to the issues dealt with at the meeting of 20 April 2004, which are set out in paragraphs 41 and 42 above, the fact that that meeting was held at a dinner in a restaurant open to the public and that Mr F. sought reimbursement of the bill for that dinner cannot suffice, as the Commission has stated, to call into question the anti-competitive nature of that meeting.

47 Furthermore, the applicants take the view that the Commission has not succeeded in proving that they joined the cartel during the meeting of 20 April 2004. Thus, it has not shown, as is, however, required by the case-law, that Mr B. informed Mr F. of any specifics of past meetings of the three other members of the cartel or that Mr F. indicated his intention of contributing by his own conduct in any way to the cartel. In addition, Mr B. did not invite Mr F. to participate in the next meeting of the cartel in June 2004, but only in that of February 2005. Moreover, they continue, the Commission has not shown that Mr B. offered to be the line of communication for certain competitors which were not members of the Groupement européen des producteurs de verre plat (‘the GEPVP’), an association set up in 1978 to represent producers of flat glass in Europe, which consisted of the three other members of the cartel and, as of 1 July 2004, the applicants. Glaverbel’s statements in that regard are not supported by documentary evidence. Lastly, the Commission cannot base its conclusion that the dinner of 20 April 2004 was of an anti-competitive nature on Mr F.’s participation in the later meetings of December 2004 and February 2005 or in the meetings of the GEPVP.

48 According to the case-law, when the infringement involves anti-competitive agreements and concerted practices, the Commission must, in order to establish that an undertaking participated in those agreements and practices, show that the undertaking in question intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (Commission v Anic Partecipazioni, cited in paragraph 32 above, paragraph 87).

49 In the present case, it is apparent from Mr B.’s notes relating to the meeting of 20 April 2004, first, that, in the light of the information communicated to Mr F. at the meeting, the applicants were aware of the anti-competitive conduct planned by the three other members of the cartel and, secondly, that, in the light of the information communicated in return to Mr B., they intended to contribute, in their name and by their own conduct, to the common objectives of the cartel. Even though the applicants were, as they themselves state, an aggressive competitor in the market, the information provided by Mr F. in the course of that meeting meant that the three other members of the cartel were aware of the applicants’ position in the United Kingdom, Irish and German markets, in which they intended to apply the agreements on price increases reached at the previous meetings and to extend those price increases to the Italian market with the assurance of the applicants’ cooperation. In those circumstances, the fact that Mr B.’s notes do not state that he communicated to Mr F. information relating to the agreements on price increases regarding the Benelux countries or to plans to increase prices in other countries, inter alia in France and Poland, adopted at the meeting of 2 March 2004, is irrelevant for the purpose of establishing the applicants’ participation in the cartel.

50 Consequently, contrary to what the applicants claim, and in accordance with the case-law cited in paragraphs 45 and 48 above, it must be held that the Commission has established that the applicants participated in the cartel as from the meeting of 20 April 2004.

51 The applicants’ argument that it is not apparent from the notes taken by Mr B. that he had informed Mr F. of the existence and substance of the meetings of the cartel, in particular of the most recent meeting of 2 March 2004, can have no bearing on the question whether the applicants joined the cartel at the meeting of 20 April 2004. As has been established in paragraph 41 above, it is apparent from, inter alia, Mr B.’s notes that he informed Mr F. of the existence of price agreements relating to the United Kingdom, Ireland and Germany and of the periods within which they were to be implemented (‘2 weeks later’ in respect of the United Kingdom and Ireland and ‘1st May – 15th May – 1st June big customers’ in respect of Germany). It is thus apparent from the contested decision that Pilkington announced a price increase in the United Kingdom and Ireland on 29 April 2004, which was followed by announcements by Saint-Gobain and Glaverbel on 11 and 18 May 2004 respectively (recital 159 of the contested decision, footnote No 193). As regards Germany, the first announcement of a price increase was made by Saint-Gobain on 25 May 2004, which was followed by the announcements by Pilkington and Glaverbel at the beginning of June 2004 (recital 163 of the contested decision, footnote No 201). Therefore, contrary to what the applicants maintain, they had rather specific knowledge of the conduct planned by the three other members of the cartel in order to pursue their anti-competitive objectives. Despite those circumstances, Mr F. did not hesitate to provide information which contributed to the objectives of the cartel, such as that relating to a possible price increase in Italy.

52 The applicants’ argument that it is not apparent from the notes taken by Mr B. that he invited Mr F. to attend the next meeting of the cartel must be rejected as irrelevant. The Commission has proved by means of other evidence that the applicants participated directly or indirectly in all the subsequent meetings of the cartel as from that date (see paragraphs 63 and 69 to 71 below). Thus, at the meeting of 15 June 2004 between the three other members of the cartel, Mr B. telephoned Mr F., who was on holiday, in order to confirm a piece of information which Mr F. had given him at the meeting of 20 April 2004 regarding Italy (recital 196 of the contested decision). The meeting of 2 December 2004 was organised by Mr F. himself and was held in Luxembourg the day before the meeting of the GEPVP, which was attended only by four representatives of the members of the cartel (recitals 199 and 201 to 204 of the contested decision). Lastly, the applicants concede that they participated in the meeting of 11 February 2005, to which they had been invited by Mr B.

53 The applicants’ argument that it is not apparent from the notes taken by Mr B. what Mr F.’s reaction to Mr B.’s proposals was or that Mr F. promised that he would contribute to the discussions going forward must also be rejected as irrelevant. As is apparent from paragraph 49 above, in view of the exchange of information which took place between Mr B. and Mr F. at the meeting of 20 April 2004, the applicants were aware of the anti-competitive conduct planned by the three other members of the cartel and intended to contribute, by their own conduct, to the common objectives of the cartel, which, according to the case-law referred to in paragraph 48 above, is sufficient to establish that the applicants participated in the cartel.

54 Mr B.’s role as a go-between is apparent from the minutes of the meeting of 20 April 2004 and is confirmed by Glaverbel’s statements of 8 March and 23 December 2005, the first of which was prior to the discovery by the Commission of Mr B.’s notes (recitals 80 and 160 of the contested decision). The fact that Glaverbel’s statements were made in the context of a leniency application does not preclude the Commission from making use of them (see, to that effect, JFE Engineering and Others v Commission, cited in paragraph 32 above, paragraph 192). Even though, as the applicants submit, those statements do not run directly counter to Glaverbel’s interests, it has no interest in providing the Commission with incorrect information concerning the other members of the cartel. Indeed, any attempt to mislead the Commission in the context of a leniency application may call into question the sincerity and the extent of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the leniency notice (Case T-120/04 Peróxidos Orgánicos v Commission [2006] ECR II-4441, paragraph 70). Consequently, the applicants’ arguments concerning the evidential value of Glaverbel’s statements with regard to the role of go-between played by Mr B. must be rejected.

55 As regards the applicants’ argument that it is contrary to the presumption of innocence for the Commission to refer to their participation in later meetings of the cartel in December 2004 and February 2005 or of the GEPVP in order to establish the anti-competitive nature of the meeting of 20 April 2004, it must be stated that the case-law does not preclude the Commission from relying on factual circumstances which take place subsequent to anti-competitive conduct in order to confirm the content of an objective item of evidence, such as the notes taken by Mr B. during that meeting. By contrast, what the case-law invoked by the applicants precludes is the use of evidence relating to an earlier period, during which the conduct in question was lawful, to establish the anti-competitive nature of subsequent conduct, which is not the case here (Case T-30/91 Solvay v Commission [1995] ECR II-1775, paragraph 73, and Case T-36/91 ICI v Commission [1995] ECR II-1847, paragraph 83). Consequently, that argument must be rejected as unfounded.

56 Lastly, the applicants dispute the Commission’s claim that Mr B. met with Mr F. in order to inform him of the trilateral agreements on price increases for the United Kingdom, Ireland and Germany or to ascertain their position in the eventuality of a price increase for Italy, and also dispute the very existence of price agreements relating to Germany. Furthermore, they state that, according to the case-law, merely being informed of the existence of meetings of a cartel is not tantamount to an infringement.

57 As has already been stated in paragraph 45 above, in the present case, Mr F. participated in an exchange of sensitive information with Mr B. regarding the United Kingdom, Ireland, Germany and Italy at the meeting of 20 April 2004. Far from distancing himself from the anti-competitive conduct of which he had been informed, Mr F. provided information concerning the applicants’ commercial strategy in the United Kingdom, Ireland and Germany and mentioned the conduct which they would adopt in the eventuality of a price increase in Italy (see paragraphs 41 to 44 above), thus substantially reducing uncertainty as to the conduct to be expected from them on the market (see paragraph 45 above). Consequently, the applicants’ arguments that it is not apparent from Mr B.’s notes that Mr F. made any commitment as to their future pricing policy in the United Kingdom or that he expressed any kind of support for any price increase are irrelevant. Furthermore, contrary to what the applicants claim, the fact that they were informed of the existence of meetings of a cartel may constitute an infringement if, in exchange, information is provided with a view to contributing to the common objectives of the cartel (see paragraphs 48 and 49 above). Lastly, the subsequent facts show that, following that meeting, the applicants followed the conduct of the three other members of the cartel. It is apparent from one of the applicants’ internal documents, seized in the course of inspections, that, following a price increase by the three other members of the cartel in the United Kingdom and Ireland, the applicants also implemented a price increase (recital 159 of the contested decision).

58 The argument that the Commission has not established the existence of an agreement at the meeting of the cartel on 2 March 2004 as regards the price increase in respect of Germany must be rejected as entirely irrelevant. It is apparent from Mr B.’s notes that he informed Mr F. of the existence and content of that agreement, the date of its adoption by the three other members of the cartel not being relevant, and that Mr F. was thus aware of its existence. Furthermore, in exchange, Mr. F. provided Mr B. with information relating to the dual price system applied to S., a client of both the applicants and Pilkington, and was to inform him about the actual price of sales to that customer. Mr F. even suggested a range of price increases. Furthermore, subsequent facts confirm the existence of that agreement. As has been stated in paragraph 51 above, that agreement was implemented by the three other members of the cartel on dates close to those announced by Mr B. to Mr. F at the meeting of 20 April 2004 and set out in his notes (25 May 2004 by Saint-Gobain, 4 June 2004 by Pilkington and 7 June 2004 by Glaverbel, although the dates envisaged were 1 May, 15 May and 1 June 2004 respectively). Contrary to what the applicants submit, that divergence is insignificant and cannot call into question the existence of that agreement or the exchange of information which took place between Mr F. and Mr B. in that regard at the meeting on 20 April 2004.

59 In the light of all of the foregoing, it must be held that the Commission acted correctly in law in concluding, in recitals 171 and 188 of the contested decision, first, that Mr B. met Mr F. on 20 April 2004 to inform him of the existence of agreements between the three other members of the cartel with regard to the price increase in respect of the United Kingdom, Ireland and Germany and, secondly, that, in exchange, Mr F. communicated to him sensitive information concerning the applicants’ commercial strategy in those markets. Furthermore, in the case of Italy, Mr F. disclosed that, if a price increase were to take place, the applicants would not oppose it. Consequently, the Commission was right to conclude that the meeting of 20 April 2004 was anti-competitive in nature and that the applicants joined the cartel as of the date of that meeting (recital 330 of the contested decision).

60 The Commission took the view that the applicants had continued to take part in collusive practices by receiving, on 15 June 2004, a call from Pilkington informing them of the agreement reached regarding the Italian market, of which they approved (recitals 189 to 196 of the contested decision).

61 The applicants submit that the Commission has not adduced any evidence of the content of the telephone conversation between Mr B. and Mr F. which took place during the meeting of 15 June 2004 and that the Commission relied solely on the statements made by Glaverbel in the context of its leniency application to maintain that, during that conversation, Mr F. stated that he would not oppose the price agreement regarding Italy. In actual fact, according to the applicants, Mr F. did no more than state that, as they were not a significant player in the Italian market, the applicants could not influence pricing in that market, thus reiterating the statements made at the dinner of 20 April 2004. Furthermore, the applicants take the view that a short telephone conversation cannot be equivalent to participation in a cartel meeting which, according to Glaverbel, lasted for five hours.

62 First of all, it must be borne in mind that, in accordance with the case-law referred to in paragraph 54 above, the fact that Glaverbel’s statements were made in the context of a leniency application does not in itself weaken their evidential value.

63 The applicants concede that Mr B. telephoned Mr F. and that they discussed Italy. Glaverbel has stated that Mr B. informed Mr F. of the price agreements adopted at the meeting and that it was clear to all the participants at that meeting that, in view of Mr F.’s remarks, the applicants did not intend to oppose those agreements (recital 189 of the contested decision). As the Commission submits, those statements are compatible with those of Mr F., according to which he repeated to Mr B. what he had said to him at the meeting of 20 April 2004, namely that Guardian was not a significant player in the Italian market, that that situation would not change within the near future and that it could not influence that market. Consequently, Mr F. confirmed to Mr B. that the applicants would not disrupt the agreements concerning a price increase in the Italian market. Furthermore, Saint-Gobain’s statement, which is not disputed by the applicants, confirms the existence of a connection between the applicants and the agreements adopted at the meeting of 15 June 2004, inasmuch as Saint-Gobain took the view that Mr F. had taken part in that meeting (recitals 190 and 196 of the contested decision).

64 It is true that the Commission has not provided documentary evidence relating to the meeting or the telephone conversation of 15 June 2004. Nevertheless, in accordance with the case-law cited in paragraph 33 above, where the evidence is fragmentary or sparse, the Commission may reconstitute certain details by deduction, which it did in the present case in the contested decision (recital 196 of the contested decision). Furthermore, the applicants have not managed to provide a coherent, alternative explanation of the reason for that call or of the content of the telephone conversation between Mr B. and Mr F. regarding Italy, the existence of which they do not dispute. Lastly, having regard to the contents of the meeting of 20 April 2004, which related inter alia to Italy, and to the circumstances in which that telephone conversation took place, the fact that the conversation was of short duration is irrelevant for purposes of discounting the contention that it was anti-competitive in nature.

65 Consequently, the Commission acted correctly in law in finding, first, that Mr. B. had telephoned Mr F. on 15 June 2004 to inform him of the agreements adopted at the meeting which had taken place on that day between the representatives of the three other members of the cartel and that Mr F. had communicated to him his position in that regard and, secondly, that that communication was therefore anti-competitive in nature.

66 Lastly, the Commission found that the applicants had participated with the three other members of the cartel in a meeting in Luxembourg on 2 December 2004, in the course of which decisions concerning price increases, minimum prices and other commercial conditions relating to the sale of flat glass products in several countries throughout Europe were taken, basing that finding on handwritten notes seized at Pilkington’s premises during unannounced investigations and on extracts from agendas (recitals 197 to 264 of the contested decision).

67 The applicants dispute that that meeting may be regarded as having an anti-competitive object. First, they state that it was a dinner which had been announced to a large group of people and which took place in a public restaurant and that Mr F. requested reimbursement of the bill for that dinner. Secondly, they take the view that the Commission has not established that that meeting gave rise to agreements on future price increases between the members of the cartel which required the applicants’ participation. They thus state that the remarks made by Mr F. at that dinner cannot be seen as an expression of their agreeing to join the EEA-wide cartel and that the Commission’s findings relating to Mr B.’s notes on that dinner contradict Glaverbel’s statements. According to Glaverbel, no price increases were discussed at the dinner, the applicants had never taken part in a multilateral cartel meeting prior to 11 February 2005 and the discussions which took place during the dinner were limited to an exchange of information. Thirdly, the applicants submit that the ‘price increase concept’ mentioned in Mr B.’s notes and the related comments are the expression either of Mr B.’s own ideas or, more probably, of a bilateral discussion between Mr B. and Mr H., an employee of Saint-Gobain, which were presented and, in part, accepted at the meeting in February 2005.

68 First of all, it must be stated that Mr B.’s notes are of two kinds. The first were taken on Hotel N.’s and Pilkington’s headed paper and have the title ‘GEPVP meeting in Luxembourg’ and the second were taken on Pilkington’s headed paper and are entitled ‘Minutes 2/12/04’. It is apparent from Pilkington’s statements, which are not disputed by the applicants, that the first notes were drafted by Mr B. on 3 December 2004 for his personal use and constitute comments on the meeting of 2 December 2004, whereas the second were taken during the meeting of 2 December 2004.

69 It is apparent from the title of the second notes, ‘Minutes’, from their date, ‘2/12/04’, and from their content that they constitute the minutes of the meeting which took place on that date. They reflect the discussions between the participants regarding the price of flat glass in various EEA countries, the information provided by Mr F. and, under the heading ‘General Agreements’, the agreements adopted. That assessment is confirmed by Pilkington’s first statements, according to which those pages consist of contemporaneous notes of a meeting held in Luxembourg on that date.

70 Those notes also make it possible to establish that the issues broached at that meeting and, therefore, the meeting itself were of a manifestly anti-competitive nature. They demonstrate that the members of the cartel agreed to increase prices in various EEA countries and that Mr F. provided a number of sensitive items of information. Glaverbel also confirmed the anti-competitive nature of that meeting in its statement of 8 March 2005, according to which ‘[d]uring that dinner, in addition to the usual price discussions, the situation with respect to the client S. was also extensively discussed’.

71 Consequently, it must be held that Mr B.’s notes and the consistent statements of Glaverbel and Pilkington regarding the discussions which took place at the dinner, prove, first, the anti-competitive nature of the meeting of 2 December 2004 and, secondly, serve to counteract Glaverbel’s initial statements, relied on by the applicants, according to which no price increases were discussed at that dinner. As was stated in paragraph 45 above, in the light of those circumstances, the applicants’ arguments that the meeting was held during a dinner and that Mr F. sought reimbursement of the bill for that dinner cannot suffice to call into question the anti-competitive nature of that meeting.

72 The applicants dispute the contention that price agreements were adopted at the meeting and maintain, as was, moreover, stated by Pilkington in its reply to the statement of objections, that what was involved was an exchange of information and not an agreement. It is, however, apparent from Mr B.’s notes that, apart from that exchange of information, the members of the cartel also adopted price agreements in the course of that meeting. Thus, minimum prices were established for Italy; a target price and the timing and procedure for a price increase were established for the United Kingdom; a price increase, led by the applicants, was decided on in respect of the Baltic States; a price increase in March 2005, led by the applicants, was decided on in respect of Poland; an increase of 10%, announced by the applicants, was agreed on in respect of France; a price increase in March 2005 was decided on in respect of the Benelux countries; and, lastly, a price increase, led by Pilkington, was agreed on in respect of Germany. Furthermore, the last page of Mr B.’s notes, headed ‘General Agreements’, partly summarises the price agreements reached and reported on in those notes and partly covers other agreements.

73 Furthermore, the fact that, as the applicants claim, it is not apparent from the notes taken by Mr B. that Mr F. provided information from which it may be deduced that the applicants participated in the agreements reached at that dinner is irrelevant. According to settled case-law, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Commission v Anic Partecipazioni, cited in paragraph 32 above, paragraph 96, and Aalborg Portland and Others v Commission, cited in paragraph 33 above, paragraph 81). As the Court stated in paragraph 82 of Aalborg Portland and Others v Commission, cited in paragraph 33 above, the reason underlying that principle is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it.

74 That case-law concerning tacit approval is based on the premiss that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded or which were of a manifestly anti-competitive nature (see Coats Holdings and Coats v Commission, cited in paragraph 35 above, paragraph 91 and the case-law cited), which, as has already been stated in paragraph 71 above, is the case here.

75 In the present case, the applicants have not provided any evidence to prove that, even though Mr F. participated in the meeting on their behalf, he distanced himself from the agreements adopted. Consequently, in accordance with the case-law referred to in the preceding paragraphs, the mere participation of Mr F. in the meeting as a representative of the applicants is sufficient for the Court to take the view that he expressed, on their behalf, tacit approval with regard to the agreements adopted at that meeting.

76 Consequently, contrary to what the applicants claim, it is apparent from the notes taken by Mr B. at the meeting of 2 December 2004 that the members of the cartel not only exchanged sensitive information at that meeting but also adopted agreements concerning an increase in the prices of various categories of flat glass in a number of EEA countries and that Mr F., on the applicants’ behalf, indicated his tacit approval of those agreements.

77 The applicants, however, submit that the ‘price increase concept’ mentioned in Mr B.’s notes does not show that a comprehensive agreement on future price increases was reached. It must be stated that the ‘price increase concept’ is referred to in the notes which Mr B. drafted after the dinner on Hotel N.’s headed paper. As has been stated in paragraph 68 above, those notes were drafted for his personal use. Against that background, the ‘price increase concept’ is only the heading under which is set out a table summarising the different price agreements for the incoming year referred to in paragraph 72 above, and the related comments cannot be regarded as Mr B.’s interpretation of what role the applicants could play in the cartel or as a summary of a bilateral after-dinner discussion between Mr B. and Mr H. Consequently, that argument relating to the ‘price increase concept’ cannot suffice to call into question the fact that price increase agreements were adopted at that meeting.

78 The applicants also maintain that the words stating that ‘[o]verall observations about Guardian behaviour have been supported by the others’ and that ‘prices in all markets are under threat’, which precede the ‘price increase concept’, reiterate comments made by Mr B., by Mr H., an employee of Saint-Gobain, and/or by Mr D., an employee of Glaverbel, showing that they did not deviate from their aggressive strategy. That argument cannot invalidate the above finding. Those words, which are part of a summary made by Mr B., for personal purposes, of the issues dealt with at the meeting held on the previous day (see paragraphs 68 and 77 above), do not reflect a distancing on the applicants’ part from the agreements. First, the words ‘prices in all markets are under threat’ are a statement of the situation which existed at the time of the meeting of 2 December 2004 (see, for example, the minutes of the meeting as regards the United Kingdom: ‘UK prices are seen as low’; France: ‘Prices are almost the lowest in Europe now’; Germany: ‘DE. Prices need to be stabilised on current levels immediately…’; Spain: ‘Prices in free fall since 2 months’, and the first of the general agreements adopted: ‘Prices all across Europe to be frozen for the next months’). Secondly, mention is made of the fact that the words ‘[o]verall observations about Guardian behaviour have been supported by the others’, which constitutes a criticism of the applicants’ behaviour prior to that meeting, which, until then, had not been that expected (see, in particular, the minutes of the meeting as regards the Baltic States: ‘Despite the agreement to increase prices (GL + P did) G has not increased and furthermore prices are now on the same level (Ø [= average] 260)’).

79 In the light of all of the foregoing, it must be held that, contrary to what the applicants maintain (see paragraph 31 above), the contacts which took place between them and the three other members of the cartel are not part of a ‘vetting process’, but constitute actual participation in the cartel. It has been established that the applicants, represented by Mr F., joined the cartel at the meeting of 20 April 2004, received a telephone call on 15 June 2004 and organised a dinner on 2 December 2004, and that the discussions which took place at those three events had an anti-competitive object. Furthermore, the applicants have admitted their participation in the meeting of 11 February 2005, which also had an anti-competitive object. Given that the existence of the meetings of 20 April and 2 December 2004 and the participation of the applicants in those meetings has been established by the notes taken by Mr B. at those meetings, the evidential value of which has not been effectively disputed by the applicants (see paragraphs 39, 40, 69 and 70 above), the explanations which they have provided in that regard cannot call into question their participation in the cartel as from 20 April 2004.

80 Consequently, the Commission acted correctly in law in finding, in the contested decision, that the applicants had participated in the cartel as from 20 April 2004.

The second part, alleging an error of assessment as regards the geographic scope of the agreements

82 The Commission found that the infringement was EEA-wide, since its perpetrators sold the products concerned within at least the EEA and their combined share of the sales there represented at least 80%, that they supplied their EEA customers from their production facilities and warehouses dispersed throughout that territory, and that the object of the cartel was Europe-wide. It stated in that regard that, although the discussions differed according to the EEA countries in question, they all had the same anti-competitive object (recitals 368 to 371 of the contested decision).

83 The applicants dispute that finding on the part of the Commission by maintaining, first, that the countries referred to at the meetings of 20 April, 15 June and 2 December 2004 cannot be taken into account in order to determine the geographic extent of the cartel, because those meetings did not have an anti-competitive object and, secondly, that the price agreements reached at the meeting of 11 February 2005 related only to Germany, Spain, Austria, Portugal and the Benelux countries and that those which put an upper limit on the reductions and rebates related only to Germany, Austria and Switzerland.

84 It must, however, be borne in mind that it is apparent from paragraphs 59, 65 and 79 above that the meetings of 20 April and 2 December 2004, as well as the telephone call of 15 June 2004, had an anti-competitive object. Consequently, the countries referred to at those meetings and those concerned by the meeting of 11 February 2005 must be taken into account in order to establish the geographic scope of the cartel.

85 The applicants submit that the evidence put forward by the Commission with a view to establishing that they participated in agreements covering the whole of the EEA is insufficient.

86 In the present case, the Commission based its assertion that the cartel agreements extended throughout the EEA on three factors. The first is the minutes of the various meetings of the cartel and the evidence relating to the telephone conversation of 15 June 2004. It is apparent from those documents that the various agreements related to several European countries, namely Belgium, Germany, Estonia, Ireland, Greece, Spain, France, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Austria, Poland, Portugal, the United Kingdom and Switzerland. It is apparent, more specifically, from the minutes of the meeting of 2 December 2004 that the participants had decided to freeze prices throughout Europe (recital 370 of the contested decision).

87 Secondly, the Commission took into account the organisation of the production and distribution of flat glass of each participant in the cartel. Production and distribution were organised over the whole of the EEA, with the result that what was produced by a plant situated in a particular country was distributed in several neighbouring countries (recitals 55 and 369 of the contested decision). That has been confirmed by the applicants themselves, as Mr F. stated that each plant had a home market, generally measured by a radius of 300 to 400 kilometres from each plant. The geographic organisation of the network of plants of each member of the cartel thus enabled them to cover requests for flat glass throughout the EEA.

88 Thirdly, the Commission took into account the origins of the participants in the meetings of the cartel, who were the sales representatives of the members of the cartel at European level and their highest ranking representatives in the ‘Marketing and Communication’ (Marcomm) group of the GEPVP, a fact which has not been disputed by the applicants (recitals 369 and 370 of the contested decision).

89 The Commission’s finding with regard to the geographic scope of the cartel is confirmed by other evidence. That evidence includes, in the first place, the statements of Glaverbel, according to which, first, Saint-Gobain, Pilkington, and Glaverbel itself participated in bilateral and multilateral meetings with the object of limiting competition on the European flat glass market, which, according to Saint-Gobain, was characterised by a steady drop in prices. Secondly, the applicants were informed of the existing agreements adopted by the three other members of the cartel in March 2004 and participated in meetings as from that date (recitals 80 and 81 of the contested decision). Consequently, contrary to what the applicants submit, Glaverbel’s statements in that regard do not relate solely to a trilateral cartel of which they were not part. That evidence includes, in the second place, a complaint sent to the Commission by the GEPVP, of which the cartel members are part, regarding a State aid project, in which it is stated that ‘the flat glass market is pan-European with significant inter-state trade’ (recital 54 of the contested decision). It includes, in the third place, the minutes and notes drafted by Mr B. the day after the meeting of 2 December 2004 and the minutes of the meeting of 11 February 2005, which demonstrate that the participants in the cartel discussed European countries not mentioned in paragraph 86 above, inter alia, Bulgaria, Cyprus, Romania and the Scandinavian countries.

90 Furthermore, the applicants cannot rely on the case-law according to which it is the undertakings concerned that establish the geographic scope of the market, which may be either wider or more limited than the relevant geographic market, in so far as that case-law relates to the question of the need to define the geographically relevant market in order to apply Article 81 EC, a question which does not arise in the present case. According to that case-law, the obligation to define the market in a decision adopted pursuant to Article 81 EC is binding on the Commission only where, without such a definition, it is impossible to determine whether the agreement in question is capable of affecting trade between Member States and has the object or effect of preventing, restricting or distorting competition within the common market (Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, paragraph 230; Case T-44/00 Mannesmannröhren-Werke v Commission [2004] ECR II-2223, paragraph 132; and Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraph 99). In principle, if the actual object of an agreement is to restrict competition, it is not necessary to define the geographic markets in question precisely, provided that actual or potential competition on the territories concerned was necessarily restricted, whether or not those territories constitute markets in the strict sense (Mannesmannröhren-Werke v Commission, paragraph 132; see also, to that effect, Case T-348/94 Enso Española v Commission [1998] ECR II-1875, paragraph 232, and Case T-241/01 Scandinavian Airlines System v Commission [2005] ECR II-2917, paragraph 99). In order to establish the geographic scope of the infringement, which must be taken into account in order to assess the seriousness of the infringement, it is sufficient for the Commission to assess the greater or lesser extent of the market or markets concerned, without being required to define precisely the markets in question (Scandinavian Airlines System v Commission, paragraph 99).

91 Having regard to the foregoing, it must be pointed out that all of the evidence put forward by the Commission, which is either not disputed by the applicants or is confirmed by other items of evidence, makes it possible to establish that the geographic area affected by the cartel extended throughout the territory of the EEA. The Commission was thus right to take the view that the scope of the infringement extended to the entire territory of the EEA.

92 Consequently, the second part of the present plea, and therefore the present plea in its entirety, must be rejected.

93 It follows from all of the foregoing that the head of claim seeking annulment set out in the application must be rejected.

94 In support of their head of claim seeking a reduction in the amount of the fine, the applicants put forward three pleas. By their first plea, they request that the Court reduce the amount of their fine as a result of the partial annulment of the contested decision. The second plea alleges infringement of the principle of non-discrimination and of the obligation to state reasons concerning the calculation of the fine, while the third plea alleges an error of assessment in view of their very limited and passive role in the infringement and breach of the principle of non-discrimination.

The plea alleging the need for a reduction in the amount of the fine as a result of the partial annulment of the contested decision

95 The applicants submit that the amount of their fine should be reduced to reflect the partial annulment of the contested decision. They thus take the view that the fine should be calculated only on the basis of the 2004 sales that relate to the EEA countries in respect of which the infringement is not being contested, the amount of which is EUR 241.6 million. Furthermore, they submit that the fine should take into account the extraordinarily short period of their participation in the cartel, which was limited to a single meeting and, at the most, to 12 days.

96 It is apparent from paragraphs 79 and 91 above that the Commission was right to find, in the contested decision, first, that the applicants had participated in the cartel from 20 April 2004 to 22 February 2005 and, secondly, that the infringement extended throughout the territory of the EEA.

97 There are consequently no grounds for reducing the amount of the fine in the light of the duration or the geographic scope of the cartel, and the present plea must accordingly be rejected.

The pleas alleging infringement of the principle of non-discrimination and of the obligation to state reasons concerning the calculation of the fine

98 The applicants take the view that the Commission infringed, first, the principle of non-discrimination by excluding the value of captive sales, that is to say, sales internal to the groups, from the calculation of the fines of the three other members of the cartel and, secondly, its obligation to state the reasons for those calculations.

99 The applicants thus submit that, in the absence of reasoning regarding the calculation of the fines of the three other members of the cartel, and in view of the confidentiality of the data used, it is impossible for them to determine the respective nature and value of the captive sales excluded for each participant in the cartel. They submit that it is therefore for the Court to offset the exclusion of those sales by a reduction in the fine imposed on them that is proportionate to the total amount of the exclusions from the flat glass market. That course of action would, they submit, be compatible with the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the Guidelines on the method of setting fines’) inasmuch as it would make it possible to reflect correctly the undertaking’s relative importance in the relevant market and has already been adopted by the Court.

100 The applicants state that the Commission excluded one billion euros in captive sales from the total market size of EUR 2.7 billion. That figure, in their submission, is the result of the deduction of the total amount of flat glass sales used in the contested decision, namely EUR 1.7 billion (recital 41 of the contested decision), from the total amount used in the statement of objections, namely EUR 2.7 billion (recital 41 of the contested decision), and represents 37% of the total size of a market the value of which is EUR 2.7 billion.

102 According to consistent case-law, the scope of the obligation to state reasons depends on the nature of the act in question and the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the Community judicature to review the legality of the measure and the persons concerned to ascertain the reasons for the measure, so that they can defend their rights and ascertain whether or not the decision is well founded.

103 It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63, and Case C-521/09 P Elf Aquitaine v Commission [2011] ECR I-0000, paragraph 150).

104 In the present case, the Commission found that the anti-competitive agreements related to sales of flat glass to independent customers (recital 377 of the contested decision) and it therefore used those sales in order to calculate the basic amount of the fines (recital 41, table 1, and recital 470 of the contested decision). The Commission therefore excluded from the calculation of the fine the sales of flat glass which was to be processed by a division of the undertaking or by a company in the same group. As the existence of anti-competitive conduct was established only in respect of sales to independent customers, the Commission cannot be criticised on the ground that it excluded the internal sales of vertically integrated members of the cartel from the calculation of the fine. Nor can the Commission be criticised on the ground that it did not state the reasons for the exclusion of those sales from the calculation of the fine.

105 In addition, as the Commission states, it has not been established that the vertically integrated members of the cartel which supplied the products concerned to divisions of the same undertaking or to companies which are part of the same group of undertakings drew an indirect advantage from the price increase agreed on or that the price increase in the upstream market resulted in an anti-competitive advantage in the downstream market for processed flat glass.

106 Lastly, as regards the argument that the Commission infringed the principle of non-discrimination by excluding the captive sales from the calculation of the fine, it must be borne in mind that, according to settled case-law, the principle of equal treatment or non-discrimination 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 Case T-311/94 BPB de Eendracht v Commission [1998] ECR II-1129, paragraph 309 and the case-law cited). In the present case, inasmuch as the Commission took the view that the anti-competitive arrangements related only to the price of flat glass invoiced to independent customers, the exclusion of internal sales from the calculation of the fine in the case of vertically integrated members of the cartel meant only that it treated objectively different situations differently. Consequently, it cannot be argued that the Commission infringed the principle of non-discrimination.

The plea alleging an error of assessment having regard to the applicants’ very limited and passive role in the infringement and breach of the principle of non-discrimination

108 The applicants submit that the Commission did not take account of their passive and very limited role in the infringement as opposed to that of the three other members of the cartel, which had participated in it for more than 20 years. Their participation was, they claim, limited to one single meeting, which was not secretive in nature, and the agreements adopted at that meeting related only to certain countries and were never implemented. Likewise, Mr B.’s notes relating to the meeting of 11 February 2005 do not prove that Mr F. agreed to participate in or lead a price increase. In those circumstances, the Commission ought to have taken account of the applicants’ passive role in the cartel for the purpose of setting the fine.

109 According to the case-law, where an infringement has been committed by several undertakings, it is appropriate, in setting the amount of fines, to consider the relative gravity of the participation of each of them (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 623; Aalborg Portland and Others v Commission, cited in paragraph 33 above, paragraph 92; and Case T-40/06 Trioplast Industrier v Commission [2010] ECR II-4893, paragraph 105), which involves, in particular, establishing their respective roles in the infringement during the period of their participation in it (Commission v Anic Partecipazioni, cited in paragraph 32 above, paragraph 150, and Case T-6/89 Enichem Anic v Commission [1991] ECR II-1623, paragraph 264).

110 According to the third indent of point 29 of the Guidelines on the method of setting fines, an undertaking’s passive role in an infringement thus constitutes a mitigating circumstance. That provision states that that circumstance applies only ‘where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market’. Furthermore, according to point 29, ‘the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount’.

111 According to the case-law, amongst the circumstances that may indicate the adoption by an undertaking of a passive role within a cartel are the situation where the undertaking’s participation in cartel meetings is significantly more sporadic than that of the ‘ordinary’ members of the cartel, its belated entry to the market on which the infringement occurred, irrespective of the duration of its participation in the infringement, or again the existence of express statements to that effect emanating from representatives of other undertakings which participated in the infringement (BPB de Eendracht v Commission, cited in paragraph 106 above, paragraph 343, and Case T-220/00 Cheil Jedang v Commission [2003] ECR II-2473, paragraph 168). In that regard, the fact that an undertaking has been the member which attended least regularly the meetings of the cartel or limited itself to receiving information passed on unilaterally by a competitor, without expressing any reservations or objections, cannot play any part in establishing that that undertaking had a passive role within the cartel (Cement judgment, cited above in paragraph 45, paragraph 1849).

112 In the present case, first of all, it follows from paragraph 79 above that the applicants participated in the cartel as from 20 April 2004. It must thus be borne in mind that, during the meeting of 20 April 2004 and the telephone conversation of 15 June 2004, the applicants informed their competitors of their future conduct in the market and received from Pilkington, without expressing the slightest objection, information concerning the agreements on price increases planned by the three other members of the cartel. The applicants took part in the meetings of the cartel on 2 December 2004 and 11 February 2005, without explicitly distancing themselves from the anti-competitive discussions which took place at those meetings. Next, it is also apparent from paragraph 79 above and from the contested decision that the applicants organised the meeting of 2 December 2004 (recital 502 of the contested decision). Lastly, it is apparent from paragraphs 70 and 72 above and from the contested decision that, at the meetings of 2 December 2004 and 11 February 2005, the applicants agreed to launch price increases in various regions and that they participated in an exchange of sensitive information (recital 502 of the contested decision). Consequently, their conduct in the cartel cannot be categorised as passive.

113 That fact that the applicants did not implement some of the agreements adopted at the meetings prior to 2 December 2004 and at the meeting of 11 February 2005 is not sufficient to establish that their conduct in the market was competitive. The exchange of sensitive information which took place at the meeting of 2 December 2004 and the telephone conversation of 15 June 2004 support the opposite conclusion. Consequently, even though, initially, the applicants did not adhere to certain agreements concerning price increases, in particular as regards the Baltic countries, it has been established that they implemented other agreements and that they collaborated actively with the three other members of the cartel, in particular by providing them with essential information for the adoption and implementation of price agreements (see paragraphs 57, 59, 63 and 65 above). Furthermore, the fact that the agreements adopted at the meeting on 11 February 2005 were not implemented cannot be attributed to the applicants’ competitive conduct, but more probably to the commencement of the inspections carried out by the Commission (see recital 296 of the contested decision).

114 Furthermore, with regard to the calculation of the fines imposed on the three other members of the cartel, the applicants complain that the Commission disregarded the multiple recidivism of those undertakings and did not increase their fines to ensure that they were deterrent in nature, even though some of those undertakings have a significantly greater turnover than theirs. Consequently, they argue, by treating different situations in the same way, the Commission infringed the principle of non-discrimination.

115 It must, first and foremost, be borne in mind that the Commission has a broad discretion in setting fines (Case C-283/98 P Mo och Domsjö v Commission [2000] ECR I-9855, paragraph 47; Case T-303/02 Westfalen Gassen Nederland v Commission [2006] ECR II-4567, paragraph 151; and Trioplast Industrier v Commission, cited in paragraph 109 above, paragraph 141).

116 Furthermore, as has been pointed out in paragraph 106 above, there is an infringement of the principle of non-discrimination where the same rule is applied to different situations. It must be stated that, in the present case, the Commission did not apply, in regard to the applicants, either the aggravating circumstance of recidivism or a multiplier in respect of the deterrent effect of the fine.

117 As regards the deterrent nature of fines, it should be noted that that is one of the factors to be taken into account in calculating the amount of a fine. It is settled case-law (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 105 and 106) that the fines imposed for infringements of Article 81 EC and laid down in Article 23(2) of Regulation No 1/2003 are designed to punish the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other operators from infringing the rules of European Union competition law in future. Accordingly, when the Commission calculates the amount of the fine it may take into consideration, inter alia, the size and the economic power of the undertaking concerned (Musique Diffusion française and Others v Commission, paragraphs 119 to 121). However, the Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their relevant turnover (Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 312).

118 In the present case, it is apparent from the contested decision that a multiplier in respect of the deterrent effect of the fine was applied to Saint-Gobain in calculating its fine, on account of its ‘far bigger presence in the glass sector’ and ‘its turnover [which] is, in absolute terms, much larger than that of the others’ (recital 519).

119 As regards the other undertakings which participated in the cartel, it must be stated that no multiplier was applied to them. The applicants, however, simply stated that Glaverbel’s turnover was three times greater than theirs, without mentioning that of Pilkington. Having regard to the case-law referred to in paragraph 117 above, that single fact, even if it were proved, cannot suffice to allow the view to be taken that the Commission was required to apply a multiplier in respect of the deterrent effect of the fine.

120 It is apparent from the foregoing that the Commission did take account of the differences in the situations of the undertakings which participated in the cartel in setting any multiplier intended to ensure the deterrent effect of the fines.

121 As regards the argument that the fines imposed on Saint-Gobain and Glaverbel were not increased in respect of recidivism, and, in particular, the argument relating to the maximum period outside which recidivism cannot be taken into account, it must be pointed out that neither Regulation No 1/2003 nor the Guidelines on the method of setting fines prescribe such a period and that the absence of such a period does not infringe the principle of legal certainty (Case C-413/08 P Lafarge v Commission [2010] ECR I-5361, paragraphs 66 and 67).

122 Nevertheless, the principle of proportionality requires that the time which has elapsed between the infringement in question and a previous breach of the competition rules be taken into account in assessing an undertaking’s tendency to infringe those rules. For the purposes of judicial review of the Commission’s measures in matters of competition law, the Court may therefore be called upon to scrutinise whether the Commission complied with that principle when it increased, on grounds of repeated infringement, the fine imposed, and, in particular, whether such increase was imposed in the light of, among other things, the time which had elapsed between the infringement in question and the previous breach of the competition rules (Lafarge v Commission, cited in paragraph 121 above, paragraph 70).

123 In the present case, as the Commission submits, more that 15 years elapsed before the beginning of the second infringement committed by those two undertakings and, contrary to what the applicants claim, the existence of continuity between the first and second infringements has not been established. That period does not confirm a tendency on the part of those undertakings to infringe the rules of competition. It must therefore be held that the Commission did not infringe the principle of non-discrimination in taking the view that the period which had elapsed between the two infringements was sufficiently long to preclude an increase, on grounds of recidivism, in the fines imposed on Saint-Gobain and Glaverbel.

124 In the light of all of the foregoing, this plea, and consequently the entire head of claim of the applicants seeking a reduction in the amount of the fine, must be rejected.

Admissibility of the references made by the Commission to Pilkington’s reply to the statement of objections

125 At the hearing, the applicants put forward an objection to admissibility relating to references made by the Commission, in the defence and in its reply of 23 January 2012 to the written questions put by the Court, to Pilkington’s reply to the statement of objections, on the ground that they had not had access to that document during the administrative procedure and were therefore unaware of its content. They submitted that the Commission could not use that reply as an incriminating document without thereby infringing their rights of defence.

126 The Commission stated that those references did not contain evidence incriminating the applicants and that they were not necessary for the purpose of resolving the dispute.

127 In that regard, it must be pointed out that it is apparent from all of the foregoing that the references made by the Commission to Pilkington’s reply to the statement of objections in the defence and in its reply of 23 January 2012 to the written questions put by the Court are not necessary for a resolution of the dispute by the Court. There is therefore no need to adjudicate on the objection to admissibility put forward by the applicants.

128 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

2. Orders Guardian Industries Corp. and Guardian Europe Sàrl to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Guardian Europe Sarl v European Commission [2012] EUECJ T-82/08 (27 September 2012) URL: http://www.bailii.org/eu/cases/EUECJ/2012/T8208.html Cite as: [2012] EUECJ T-82/08, [2012] EUECJ T-82/8

Court of Justice of the European Communities (including Court of First Instance Decisions)