Judgment of the General Court (Third Chamber), 12 December 2014

– The concepts of agreement and concerted practice

94 According to Article 81(1) EC, all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market are incompatible with the common market and prohibited.

95 In order for there to be an agreement within the meaning of Article 81(1) EC it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 256, and Case T-9/99 HFB and Others v Commission [2002] ECR II-1487, paragraph 199).

96 An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (Case T-240/07 Heineken Nederland and Heineken v Commission [2011] ECR II-3355, paragraph 45; see also, to that effect, HFB and Others v Commission, paragraph 95 above, paragraphs 151 to 157 and 206).

97 The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 115, and Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 158).

98 In that respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (Heineken Nederland and Heineken v Commission, paragraph 96 above, paragraph 47; see also, to that effect, Commission v Anic Partecipazioni, paragraph 97 above, paragraphs 116 and 117).

– The principles of the assessment of evidence

99 According to the case-law, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement (see Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58, see Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T-61/02 OP Dresdner Bank and Others v Commission [2006] ECR II-3567, paragraph 59 and the case-law cited).

100 As regards the scope of review by the Court, it is settled case-law that, where the Court is faced with an application for the annulment of a decision applying Article 81(1) EC, it must undertake in a general manner a comprehensive review in order to ascertain whether or not the conditions for the application of Article 81(1) EC are met (see Case T-41/96 Bayer v Commission [2000] ECR II-3383, paragraph 62 and the case-law cited).

101 In that respect, any doubt on the part of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. 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 (Dresdner Bank and Others v Commission, paragraph 99 above, paragraph 60, and Case T-112/07 Hitachi and Others v Commission [2011] ECR II-3871, paragraph 58).

102 In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which is one of the fundamental rights which are general principles of EU law. Given the nature of the infringements in question and the nature and degree of gravity 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 (Hitachi and Others v Commission, paragraph 101 above, paragraph 59; see also, to that effect, Dresdner Bank and Others v Commission, paragraph 99 above, paragraph 61 and the case-law cited).

103 Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement. However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria for every aspect of the infringement. It is sufficient if the set of indicia relied on by the institution, viewed as a whole, meets that requirement (see Dresdner Bank and Others v Commission, paragraph 99 above, paragraphs 62 and 63 and the case-law cited).

104 The indicia on which the Commission relies in the contested decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see Case T-53/03 BPB v Commission [2008] ECR II-1333, paragraph 185 and the case-law cited).

105 It should also be observed that, in practice, the Commission is often obliged to prove the existence of an infringement under conditions which are hardly conducive to that task, in so far as several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation have not actively cooperated with it. While it is necessarily incumbent upon the Commission to establish that an unlawful price-fixing agreement was concluded, it would be excessive also to require it to produce evidence of the specific mechanism by which that object was to be attained. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were able to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had none the less been sufficiently established. The undertakings are able to defend themselves properly in such a situation, provided that they are able to comment on all the evidence adduced against them by the Commission (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 203).

106 As regards the evidence which may be relied on to establish an infringement of Article 81 EC, the prevailing principle of EU law is the unfettered evaluation of evidence (Case T-50/00 Dalmine v Commission [2004] ECR II-2395, paragraph 72, and Hitachi and Others v Commission, paragraph 101 above, paragraph 64).

107 As regards the probative value of the various items of evidence, the sole criterion relevant in evaluating the evidence adduced is its reliability (Dalmine v Commission, paragraph 106 above, paragraph 72).

108 According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraphs 1053 and 1838, and Hitachi and Others v Commission, paragraph 101 above, paragraph 70).

109 Where the Commission bases its decision solely on the conduct of the undertakings in question on the market to conclude that there has been an infringement, it is sufficient for those undertakings to prove the existence of circumstances which cast the facts established by the Commission in a different light and thus allow another plausible explanation of those facts to be substituted for the one adopted by it in concluding that the European Union competition rules had been infringed (see, to that effect, JFE Engineering and Others v Commission, paragraph 105 above, paragraph 186).

110 Where, on the other hand, the Commission has relied on documentary evidence, it is for the undertakings concerned not merely to present a plausible alternative to the Commission’s theory but to show that the evidence used in the decision is insufficient to establish the existence of the infringement (JFE Engineering and Others v Commission, paragraph 105 above, paragraph 187). Such an approach to evaluating the evidence does not constitute a breach of the principle of the presumption of innocence (see, to that effect, Case C-235/92 P Montecatini v Commission [1999] ECR I-4539, paragraph 181).

111 Since the prohibition on participating in anti-competitive practices and agreements is well known, the Commission cannot be required to produce documents explicitly showing contacts between the operators concerned. The fragmentary and incomplete evidence which it may have should, in any event, be capable of being supplemented by inferences that will enable the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Aalborg Portland and Others v Commission, paragraph 77 above, paragraphs 55 to 57; see also Dresdner Bank and Others v Commission, paragraph 99 above, paragraphs 64 and 65 and the case-law cited).

112 When assessing the probative value of documentary evidence, it is necessary to attach great importance to the fact that a document was drawn up in close connection with the facts (Case T-157/94 Ensidesa v Commission [1999] ECR II-707, paragraph 312, and Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission [2003] ECR II-5761, paragraph 181) or by a direct witness of those facts (JFE Engineering and Others v Commission, paragraph 105 above, paragraph 207).

113 The fact that a document is undated or unsigned or is badly written does not impugn its probative force, especially where its origin, probable date and content can be determined with sufficient certainty (Joined Cases T-217/03 and T-245/03 FNCBV v Commission [2006] ECR II-4987, paragraph 124; see also, to that effect, Case T-11/89 Shell v Commission [1992] ECR II-757, paragraph 86).

114 It follows from the principle of the free evaluation of evidence that even if the absence of documentary evidence may be relevant in the context of the overall assessment of the set of indicia put forward by the Commission, it does not in itself have the consequence that the undertaking concerned is able to call the Commission’s allegations into question by presenting an alternative explanation of the events. The applicant may do so only where the evidence submitted by the Commission does not enable the existence of the infringement to be established unequivocally and without the need for interpretation (Hitachi and Others v Commission, paragraph 101 above, paragraph 65; see also, to that effect, judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 74).

115 In addition, no provision or any general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings accused of having participated in the cartel. If that were not the case, the burden of proving conduct contrary to Article 81 EC, which is borne by the Commission, would be unsustainable and incompatible with its task of supervising the proper application of those provisions (JFE Engineering and Others v Commission, paragraph 105 above, paragraph 192, and Hitachi and Others, paragraph 101 above, paragraph 67).

116 Particularly high probative value may be attached to statements which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection (Hitachi and Others v Commission, paragraph 101 above, paragraph 71; see also, to that effect, JFE Engineering and Others v Commission, paragraph 105 above, paragraphs 205 to 210).

117 However, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, though the degree of corroboration required may be less in view of the reliability of the statements at issue (JFE Engineering and Others v Commission, paragraph 105 above, paragraphs 219 and 220, and Hitachi and Others v Commission, paragraph 101 above, paragraph 68).

118 In addition, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, given the possibility that those participants might tend to play down the importance of their contribution to the infringement and maximise that of the others, the fact remains that seeking to benefit from the application of the 2002 Leniency Notice in order to obtain immunity from a fine, or a reduction of the amount of the fine, does not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the 2002 Leniency Notice (Hitachi and Others v Commission, paragraph 101 above, paragraph 72; see also, to that effect, Case T-120/04 Peróxidos Orgánicos v Commission [2006] ECR II-4441, paragraph 70).

119 In particular, where a person admits that he committed an infringement and thus admits the existence of facts going beyond those whose existence could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Thus, statements which run counter to the interests of the person making them must in principle be regarded as particularly reliable evidence (JFE Engineering and Others vCommission, paragraph 104 above, paragraphs 211 and 212; Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others v Commission [2007] ECR II-947, paragraph 166; and judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission, not published in the ECR, paragraph 59).

120 The case-law cited above is applicable, by analogy, to Article 53 of the EEA Agreement.

– The contested decision

121 First of all, it should be borne in mind that the Commission considered, at recital 2 to the contested decision, under the heading ‘Summary of the infringement’, that the addressees of the contested decision had participated in a single, complex and continuous infringement of Article 81 EC and Article 53 of the EEA Treaty. The main aspect of that infringement consisted of ‘agreements and/or concerted practices aimed at price fixing and exchanging and disclosing commercially sensitive information’ concerning paraffin waxes. That main aspect was the only component of the infringement in which the applicant took part, according to the contested decision. Some other undertakings to which the contested decision was addressed also participated in the other aspects of the infringement, namely ‘customer and/or market allocation’ with respect to paraffin waxes (the second aspect of the infringement) and also ‘slack wax sold to end-customers on the German market’ (the slack wax aspect of the infringement).

122 In the contested decision, under the headings ‘4. Description of the Events’ and ‘4.1. The Basic Principles and Functioning of the Cartel’, the Commission provided, at recital 106 et seq. to that decision, the following description of the content of the price-fixing practices:

‘…

(106) The [t]echnical [m]eetings have been divided into two parts: an initial discussion on technical issues, which was followed by discussions of an anti-competitive nature such as price fixing, market and customer allocations (in certain cases), and exchange and disclosure of commercially sensitive information including present and future pricing policies, customers, production capacities and sales volumes.

(107) Discussions about prices and potential price increases normally took place at the end of the [t]echnical [m]eetings. Usually, Sasol would instigate the discussions about prices, but then prices and pricing strategies were discussed by all the attendees in the form of a round table discussion. The discussions concerned both price increases and target prices for specific customers and general price increases as well as minimum and target prices for the whole market. Price increases were normally agreed upon in terms of absolute numbers, not percentages (for example [EUR] 60 … per ton for fully-refined paraffin waxes). Minimum prices were not only agreed upon when there was an agreement of a price increase but also when a price increase was not feasible (for example in times of falling prices).

…

(109) Furthermore, the individuals representing the companies exchanged commercially sensitive information and disclosed their general business strategies.

(110) The companies, except for MOL, were represented by managers that had the power to determine their respective company’s pricing strategy and set prices with respect to individual customers. …

(111) In most of the [t]echnical [m]eetings the price discussions concerned paraffin waxes in general and only rarely the different kinds of paraffin waxes (such as fully-refined paraffin waxes, semi-refined paraffin waxes, wax-blends/specialties, hard paraffin waxes or hydro-finished paraffin waxes) were specified. Moreover, it was understood by all the companies that prices for all types of paraffin waxes would be increased by the same amount or percentage.

…

(113) The outcome of the [t]echnical [m]eetings was mainly implemented through price increase announcements to customers or by cancelling existing pricing schemes. Occasional cases of cheating or non-implementation were discussed at subsequent meetings (see, for example, recitals 149 and 157). Usually, one of the companies represented would take the lead and start increasing its prices. Usually, that would be Sasol, but sometimes Sasol asked another participant to take the lead. Shortly after one company announced its intention to raise prices to its customers, the other suppliers would follow suit by announcing price increases as well. The individuals representing the companies at the [t]echnical [m]eetings informed each other of the steps they took to implement the results of the [t]echnical [m]eetings. This information was transmitted orally or by sending a copy of the relevant price increase or price cancellation announcements to one or all of the other [participating] companies … The Commission indeed found that such announcements were exchanged between the parties. A sample of around 150 such letters have been identified as having been exchanged within six weeks after [t]echnical [m]eetings. Also, an agreement has been reported where the companies represented should not profit from the implementation of an agreed price increase to increase their own market share. This statement was not contested in the replies to the [s]tatement of [o]bjections.’

123 Under the heading ‘4.2. Details on the Technical Meetings’, the Commission first of all presented in the contested decision a table setting out the places and dates of the technical meetings and the undertakings present (recital 124 to the contested decision). It then examined the available evidence relating to each of the technical meetings (recitals 126 to 177 to the contested decision).

124 Under the headings ‘5. Application of Article 81 [EC] in the present case’ and ‘5.3. The Nature of the Infringement in the Present Case’, the Commission set out in the contested decision the principles governing the characterisation of the anti-competitive conduct that were applicable:

‘5.3.1. Principles

…

1. … it is not necessary for the Commission to characterise the conduct as [an agreement or a concerted practice], particularly in the case of a complex infringement of long duration. The concepts of agreement [or] concerted practice are fluid and may overlap. The anti-competitive behaviour may well have varied from time to time, or its mechanisms may have been adapted or strengthened to take account of new developments. Indeed, it may not even be possible to make such a distinction, as an infringement may simultaneously present the characteristics of each form of prohibited conduct, while when considered in isolation, some of its manifestations could accurately be described as one rather than the other. It would be analytically artificial, however, to subdivide what is clearly a continuing common enterprise having one and the same overall objective into several different forms of infringement. A cartel may therefore be an agreement and a concerted practice at the same time. Article 81 [EC] lays down no specific category for a complex infringement of the type described in this decision.

2. In circumstances where there are several cartel members and their anti-competitive behaviour over time can be characterised as either agreements or concerted practices (complex infringements), the Commission is not required to classify each type of behaviour. …’

125 Next, still under the heading ‘5.3. The Nature of the Infringements in the Present Case’, the Commission described in the contested decision the content of the infringement, as follows:

‘5.3.2 Application

• It is demonstrated by the facts described in Chapter 4 of the present [d]ecision that all undertakings subject to the present procedure were involved in collusive activities concerning paraffin waxes and, for those companies identified in recital (2), slack wax … and regularly attended meetings at which the following items were at issue:

  1. price fixing[;]

  2. … customer and/or market allocation[;]

  3. disclosure and exchange of commercially sensitive information, in particular information relating to customers, pricing, production capacities and sales volumes …

5.3.2.2.

Price fixing

1. Recitals (98), (107), (126), (128), (131), (133), (135), (137), (139), (140), (142), (145), (147), (149), (152), (153), (156), (157), (163), (168), (174), (176) and (177) demonstrate that the undertakings involved fixed minimum prices and agreed on price increases (“price fixing”).

2. ExxonMobil, Repsol, Sasol and Shell confirmed that price-fixing occurred [see recital 107] and reconfirmed this at the oral hearing and in their written replies to the statement of objections.’

– The imputability to H&R ChemPharm of Mr G.’s presence at the technical meetings

126 The applicant claims that it cannot be found liable on the ground that Mr G. was present at the technical meetings. His tasks as product manager were limited to new product development, to the exclusion of any commercial activity or responsibilities for representing the applicant. In any event, he spent only 30% of his working time with the applicant.

127 According to the case-law cited at paragraph 73 above, the Commission’s power to impose a sanction on an undertaking where it has committed an infringement presumes only the unlawful action of a person who is generally authorised to act on behalf of the undertaking.

128 As for Mr G.’s responsibilities, the applicant made the following statement in its letter of 19 January 2007:

‘[Mr G.] held the post of product manager at SRS from 1994 until 1 July 2001 and in that capacity was an employee of that undertaking. On 1 July 2001 his post was transferred to H&R Management & Service [now H&R ChemPharm]. Consequently, since 2001, and to date, [Mr G.] has been employed by H&R ChemPharm … as product manager. … Since 1 January 2001 he has acted as sales manager of H&R Wax Company Vertrieb without being formally employed by that company … Since 1999 Mr G. has had the dual role of product manager and sales manager. As product manager, he constitutes the interface between production and distribution. Apart from consistently adapting production possibilities to market requirements, the product manager’s tasks consist, in particular, in providing technical assistance to customers for the application of the products. In that dual role, [Mr G.] assumes responsibility for customers’ technical questions and, working with [Mr H.], also commercial questions. That dual role is provided for in the contract of employment concluded with H&R ChemPharm.’

129 In addition, in its letter of 8 December 2005 stated the following:

‘From the time when [H&R ChemPharm] entered the paraffin waxes sector in 1994 and until 2001, [Mr W.] was responsible for distribution. [Mr W.] has been retired since the end of 2001. With a view to [Mr W.’s] planned retirement, it was first of all [Mr H.] who [since 1997] came to reinforce that department, being joined in 1999 by [Mr G.] Those two persons are still responsible for the distribution of paraffins.’

130 In the first place, it must be considered that, in his capacity as H&R ChemPharm’s product manager, Mr G. was authorised to act on behalf of that undertaking. Such a conclusion is borne out by the applicant’s statement that one of Mr G.’s tasks was to ‘provide technical assistance to customers for the application of its products’, which implies that he was authorised to act vis-à-vis customers on behalf of the applicant in the exercise of his purely production-related duties.

131 In the second place, the Court considers that Mr G.’s distribution-related duties are also relevant. The Commission has adduced evidence in the present case that the applicant’s employee, whose contract of employment with the applicant provided for duties related both to production and to distribution, was present at the anti-competitive meetings. It would be too easy for an infringement guilty of an infringement to avoid any penalty if it could validly raise against such a finding the fact that its employee was in reality acting at those meetings on behalf of another company. Such a solution could also allow the companies participating in cartels to avoid any liability by creating situations of dual employment with a company not involved in the cartel, by claiming that the joint employee acted solely on behalf of that other company.

132 In the third place, it should be borne in mind that the applicant itself stated that Mr G. constituted the ‘interface between production and distribution’ and was responsible for ‘consistently adapting production possibilities to market requirements’, also assuming responsibilities for ‘commercial questions’. Such a position enabled Mr G. to influence the applicant’s commercial conduct in the light of the information obtained at the technical meetings, in particular on ‘market requirements’, the manipulation of which is frequently an aim of the collusive activities between competitors, and thus to enable the applicant to benefit from those activities.

133 In the fourth place, as already observed at paragraph 58 above, the applicant’s assertion that Mr G. devoted only 30% of his working time to the applicant is irrelevant. Even very brief periods spent in contact with the production company could enable information obtained during the anti-competitive meetings to be communicated or instructions determined in the light of that information to be given, taking into account the arrangements decided on during the anti-competitive meetings.

134 In the fifth place, the applicant’s argument that it was not involved in the distribution of paraffin waxes is contradicted not only by the fact that Mr G.’s duties as sales manager were provided for in his contract of employment with the applicant, but also by the fact that from 28 February 2001 the applicant also employed Mr W. as sales director.

135 In the light of the foregoing, it must be concluded that the Commission did not err in considering that the employment relationship between Mr G. and the applicant justified the latter’s being found liable in respect of the former’s acts.

– The applicant’s offer to adduce evidence

136 The applicant offers as evidence the testimony of its manager, Mr S., in order to demonstrate that Mr G.’s responsibilities with the applicant were limited to new product development.

137 In that regard, it should be observed that the applicant itself has stated, in tempore non suspecto, that Mr G. carried out tasks connected with distribution and that he was the interface between production and distribution. The probative value of those statements is higher than that of testimony drawn up in tempore suspecto and they therefore enable the Court to substantiate the conclusion set out at paragraph 135 above and to reject the applicant’s present complaint. The applicant’s offer of evidence is therefore rejected.

– Global assessment of the evidence supporting the existence of an infringement committed by the applicant

138 In the first place, it should be observed that a number of undertakings have admitted that the prices of paraffin waxes were discussed at the technical meetings with the general objective of reaching agreement on their level.

139 In particular, according to Sasol’s statement of 12 May 2005, the technical meetings generally resulted in collusive activity, in so far as increases and reductions of paraffin waxes prices were discussed in those meetings and information on overall prices and capacity planning was exchanged.

140 According to Repsol’s statement of 19 May 2005, discussion of the levels of paraffin waxes prices charged by participants formed part of the technical meetings.

141 Shell stated that all the technical meetings concerned price fixing. According to its statement of 14 June 2006, at least since 1999, when its representative who had given evidence began to participate in the technical meetings, the prices of paraffin waxes were never decided unilaterally but were always fixed by competitors at technical meetings.

142 In addition, those undertakings also asserted, in those statements, that at a number of technical meetings the participants had in fact agreed on minimum prices or price increases, sometimes even on the means of applying increases.

143 It should be emphasised that, in particular in the statements referred to at paragraphs 139 to 141 above, and also in Sasol’s reply of 18 December 2006 to a request for information from the Commission, reference was made to the participation of the entities SRS, SRS/Tudapetrol, H&R/Tudapetrol or Hansen & Rosenthal in the technical meetings and Mr G., an employee of the applicant, was mentioned by name as being present at those meetings.

144 Furthermore, it should be observed that the Commission referred to the statements in question at recitals 107 and 113 to the contested decision.

145 Those statements were made on the basis of the testimony of the individuals who had participated in the technical meetings, they were made after mature reflection and they also incriminate the undertakings on whose behalf they were made. In addition, the statements are agreed on the broad outlines of the description of the infringement, which further increases their reliability. Thus, within the meaning of the case-law cited at paragraph 116 above, they are particularly reliable.

146 In the second place, it must be emphasised that the statements referred to at paragraphs 139 to 141 above are borne out by written notes contemporaneous to the technical meetings which the Commission found during the inspections, to which the access had access during the administrative procedure and which are cited in part at recitals 165, 173, 174 and 177 to the contested decision. The notes by Mr SC. referred to at recital 173 to the contested decision, the Total note referred to at recital 174 and the MOL note referred to at recital 177 to that decision are handwritten notes drawn up during the meetings by the person attending them and their content is structured and relatively detailed. Their probative value is therefore very high. As regards Sasol’s ‘Blauer Salon’ minute (recital 163 to the contested decision) and the Eni note (recital 165 to the contested decision), these are documents dating from the time of the infringement which were drafted in tempore non suspecto, shortly after the technical meetings to which they refer. Their probative value is therefore high.

147 In the third place, it should be observed that, according to the contested decision, during the period of its participation in the infringement (from 1 July 2001 to 28 April 2005), the applicant was represented by Mr G. at each of the 14 technical meetings that took place. The applicant does not deny that Mr G. participated in each of those technical meetings.

148 As regards agreements of an anti-competitive nature which, as in the present case, become evident at meetings of competing undertakings, the Court of Justice has already held that an infringement of Article 81 EC was constituted when those meetings had the object of restricting, preventing or distorting competition and were thus aimed at artificially organising the functioning of the market. In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order 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 indicia 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 (Aalborg Portland and Others v Commission, paragraph 77 above, paragraph 81, and Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I-729, paragraph 47).

149 The reason underlying that rule is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking gave the other participants to believe that it subscribed to what was decided there and would comply with it (Aalborg Portland and Others v Commission, paragraph 77 above, paragraph 82, and Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 149 above, paragraph 48). The principles established in that case-law are also applicable to meetings giving rise to concerted practices, as defined in the case-law cited at paragraph 97 above.

150 In the present case, the applicant does not claim to have publicly distanced itself from what was discussed during the anti-competitive meetings.

151 In the fourth place, it should be borne in mind that an undertaking may be held responsible for an overall cartel even though it is shown to have participated directly only in one or some of its constituent elements if it knew, or must have known, that the collusion in which it participated, especially by means of regular meetings organised over several years, was part of an overall plan intended to distort normal competition and that the overall plan included all the constituent elements of the cartel. Likewise, the fact that different undertakings have played different roles in the pursuit of a common objective does not mean that there was no identity of anti-competitive object and, therefore, of infringement, provided that each undertaking has contributed, at its own level, to the pursuit of the common objective (see JFE Engineering and Others v Commission, paragraph 105 above, paragraph 370 and the case-law cited).

152 First, it is appropriate to examine the applicant’s arguments that, in the case of certain technical meetings, the Commission has not succeeded in reconstituting the content of the discussions, so that those meetings may have related only to the aspects of the infringement — customer-sharing and arrangements concerning slack wax — for which it has not been held liable.

153 First of all, it should be observed that the Commission has evidence showing that at least one discussion on prices generally took place during the technical meetings. In particular, in its statement of 12 May 2005, Sasol stated that the technical meetings generally resulted in collusive activity, in so far as ‘price increases and reductions were discussed’ in those meetings and information on overall prices and capacity planning was exchanged. According to Repsol’s statement of 19 May 2005, discussion of the price levels charged by participants formed part of the technical meetings. Shell stated that all the technical meetings concerned price fixing (see also paragraphs 139 to 141 above). The applicant cannot validly contend that such matters were raised for the first time in the defence, since the Commission referred to the Sasol, Repsol and Shell statements at recital 107 to the contested decision and they were made available to the applicant during the administrative procedure.

154 Next, it should be added that, at recital 240 to the contested decision, the Commission stated that proof that the undertakings in question fixed minimum prices and agreed on price increases was to be found at, inter alia, recitals 163, 168, 174, 176 and 177 to the contested decision. In addition, the Commission stated at recitals 165 and 175 to the contested decision that the participants in those technical meetings had exchanged commercially sensitive information on paraffin waxes, concerning, in particular, price levels. The abovementioned recitals contain citations of written evidence contemporaneous with the technical meetings showing exchanges of information on prices, the willingness to increase or stabilise prices, even, in certain cases, agreed price increases, and they are supplemented by the references to statements of undertakings.

155 It must be concluded, therefore, that, in general, the contested decision contains substantiated proof of the applicant’s liability for the infringement.

156 The other arguments put forward by the applicant cannot alter that finding.

157 In the first place, it should be noted that the alternative explanations put forward by the applicant relate each time to a particular technical meeting. Thus, they are not capable of constituting a plausible alternative explanation in respect of the body of evidence gathered by the Commission, which enabled it to establish the existence of a single and continuous infringement.

158 In the second place, a large part of the applicant’s argument relates to the alleged absence of an agreement to fix the prices of paraffin waxes. However, such an argument is irrelevant.

159 As is clear from the case-law cited at paragraph 96 above, an agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation. Accordingly, for the purpose of applying Article 81 EC in the present case, the Commission did not need to show that the participants actually agreed on specific price levels or specific detailed measures to increase prices. It was sufficient to demonstrate a concurrence of wills between the participants with the aim of fixing or aligning prices. The applicant puts forward no specific argument to counter the statements of Sasol, Repsol and Shell, according to which the aim of the technical meetings was price fixing.

160 Next, the Commission has a body of incontrovertible evidence showing that the participants regularly exchanged information on their prices and proposed increases during the technical meetings, and did so over more than 12 years, including during the period of H&R ChemPharm’s participation. However, the applicant has provided no consistent explanations of those activities such as to render implausible the Commission’s assertion that the raison d’être of those practices was, in particular, price fixing. On the contrary, the long period over which the anti-competitive meetings concerning prices were systematically held constitutes in itself an indicium that the participants’ objective was to harmonise their pricing policies, knowingly substituting cooperation among them for the risks of the market.

161 Furthermore, according to the case-law cited at paragraph 98 above, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition. The applicant does not deny either having had such contact or having exchanged sensitive information at the technical meetings.

162 In the light of the foregoing, it must be held that the applicant’s arguments are generally not such as to undermine the validity of the Commission’s assessment as set out in the contested decision. In what follows, the Court will examine, first, the situation prevailing when the applicant commenced its participation in the cartel and, second, certain particular technical meetings, in order to verify the Commission’s establishment of the beginning and the end of the applicant’s participation in the infringement, and also the finding that the technical meetings in question did in fact relate to the main aspect of the infringement, in respect of which the applicant has been found liable.

– The starting date of the applicant’s participation in the infringement

163 As a preliminary point, it is appropriate to describe the relevant events preceding the time when Mr G. took up his post with the applicant, on 1 July 2001. Such an examination will make it possible to ascertain whether Mr G. was aware of the main aspect of the infringement (price fixing and the exchange of information on paraffin waxes prices) and whether on that date the anti-competitive pricing arrangements were capable of influencing H&R ChemPharm’s competitive conduct.

164 In the first place, in that regard, it should be observed that Tudapetrol, the company that sold the applicant’s paraffin waxes until 1 May 2000, had participated in the cartel from 24 March 1994, being represented at the technical meetings by its employee Mr W. Tudapetrol’s participation in the main aspect of the infringement is well documented and examined in detail in the judgment in the related case T‑550/08 Tudapetrol v Commission.

165 Next, H&R Wax Company Vertrieb, which took over the role as distributor of the applicant’s paraffin waxes from 1 May 2000, also participated in the cartel from 1 January 2001, being represented at the technical meetings by its employee Mr H. In its reply to the statement of objections and in its written submissions to the Court, the applicant does not deny that H&R Wax Company Vertrieb and the applicant are part of the same undertaking (recital 381 et seq. to the contested decision). Furthermore, it is also apparent from the file that Mr H. and Mr G. worked closely together and that they together represented the H&R group at at least 13 technical meetings, including those held on 25 and 26 May 2000, 22 and 23 February 2001 and 26 and 27 April 2001 (at the time of those technical meetings, Mr G. was product manager at SRS, an indirect subsidiary of the applicant).

166 In the second place, in that regard, it is necessary to bear in mind Sasol’s reply of 18 December 2006 to a request for information, in which it stated:

‘With regard to the beginnings of the Blue Saloon [the term used by Sasol to designate the technical meetings, also designated the “Blauer Salon” meetings], … these meetings began as a “German circle” with the participants Deutsche Texaco AG (today Shell/DEA), HOS (today Sasol), Wintershall (the paraffin wax business of which is today Hansen & Rosenthal) and Arco (the paraffin wax business of which was later acquired by HOS). At that time, Wintershall was a subsidiary of BASF. Wintershall was represented by [Mr W.] who was one of the “founding fathers” of the Blue Saloon. Wintershall/BASF participated regularly in the Blue Saloon meetings (represented by [Mr W.]). … BASF’s (indirect) involvement ended in 1994 when the wax activities of Wintershall were acquired by Hansen & Rosenthal (at the time: SRS). From then on, [Mr W.] and [Mr H.], son of [Mr HA.] (Hansen & Rosenthal’s major shareholder), attended the Blue Saloon meetings for Hansen & Rosenthal. After [Mr W.’s] retirement, [Mr H.] took over [Mr W.’s] role, together with [Mr G.].’

167 Mr G.’s participation, his role as representative of the entity ‘H&R/Tudapetrol’ at the technical meetings and the fact that he and Mr H. took over Mr W.’s role after the latter’s retirement were also confirmed by Repsol, Shell and ExxonMobil.

168 In addition, Mr W., who was present at numerous technical meetings from 1994 and, according to Sasol, was ‘one of the founding fathers’ of the anti-competitive meetings, was also employed by the applicant from 28 February 2002.

169 In the third place, it should be observed that before the professional relationship between H&R ChemPharm and Mr G. began, Mr W. had already taken part in the technical meetings held on 25 and 26 May 2000 (recital 159 to the contested decision), 22 and 23 February 2001 (recital 161 to the contested decision) and 26 and 27 April 2001 (recital 162 to the contested decision). As regards those technical meetings, Shell, Sasol and Repsol independently stated that they had an anti-competitive content. In any event, the Commission has evidence that at least one discussion on prices generally took place at the technical meetings (see paragraph 153 above).

170 Furthermore, it should be borne in mind that, according to the evidence in the Commission’s possession cited at recital 159, during the technical meeting held on 25 and 26 May 2000 prices for a specific customer were discussed and that during that discussion Total was alleged to have sold at prices that were too low. That technical meeting was therefore certainly connected with the main aspect of the infringement, in respect of which the applicant is found liable for a subsequent period.

171 In addition, while it is true that the Commission has not found any documents showing Mr G.’s travel expenses in relation to the technical meeting held in Paris (France) on 26 and 27 June 2001 (recital 163 to the contested decision), the fact remains that the presence of ‘SRS-Tuda’ was indicated in Sasol’s ‘Blauer Salon’ debriefing note relating to that meeting. Mr G., then employed by SRS, was present at the two previous technical meetings and at the 14 technical meetings subsequent to that meeting. In any event, Mr G. represented the H&R group at the technical meetings in close collaboration with Mr H., which facilitated the exchange of information. In the light of the fragmentary and incomplete nature of the material which the Commission was able to assemble (see the case-law at paragraph 111 above) in relation to the facts concerning the secret cartels, requiring the reconstitution of the relevant circumstances, it must be held, on the basis of the abovementioned material, that the applicant was aware of the content of that meeting.

172 At recital 163 to the contested decision, the Commission cited the Sasol ‘Blauer Salon’ debriefing note relating to the meeting held on 26 and 27 June 2001 in Paris, which contains, in particular, the following observations:

‘during July: cancel prices of special customers … at earliest possible date …

end of August: cancel all prices by 30/09.01.

By 1/10.01 + [EUR] 7,-’

173 According to the contested decision, ‘[t]his shows that the individuals representing the companies agreed on price increase for paraffin of EUR 7 by 1 October 2001, preceded by a cancellation of all existing price arrangements beginning in the second half of that year and concluded by 30 September’.

174 Thus, it must be held that a price-fixing agreement was reached at the technical meeting held on 26 and 27 June 2001.

175 Therefore, in order to summarise the foregoing, it should be borne in mind that, first, Mr G., in collaboration with Mr H., took over Mr W.’s role at the technical meetings. During Mr W.’s participation, Tudapetrol, the distributor of the applicant’s products, participated in the practices aimed at fixing the prices of paraffin waxes. Mr W. was employed by the applicant from 1 July 2001. Second, H&R Wax Vertrieb, a company indirectly holding shares in the applicant and the applicant’s distributor, had already been participating in the infringement since 1 January 2001, being represented by Mr H., with whom Mr G. worked in close collaboration. Third, Mr G. was present at the technical meeting held on 25 and 26 May 2000, during which the prices of paraffin waxes were discussed. Fourth, the Commission has shown that the entity ‘H&R/Tudapetrol’ was present at the technical meeting held in Paris on 26 and 27 June 2001, that H&R was represented at that time by Mr H. and Mr G., and that a price fixing agreement was reached during that meeting. Fifth, it should be borne in mind (see paragraphs 139 to 141 and 153 above) that the Commission has evidence that at least one discussion on prices was generally held at the technical meetings. Mr G. was present at at least three technical meetings that took place before the start of the period during which the applicant is found to have participated in the infringement.

176 In the light of those factors, it must be stated that Mr G. must have been aware of the main aspect of the infringement, that is to say, ‘agreements or concerted practices relating to price-fixing and the disclosure of sensitive business information’ affecting paraffin waxes when he took up his post with the applicant. He had information about the operation of the cartel, that is to say, about the arrangements for fixing the prices of paraffin waxes and/or the mechanisms whereby the participants knowingly substituted practical cooperation among themselves for the risks of competition in that sector. Also, the responsibilities carried out by Mr G. under his contract of employment with H&R ChemPharm enabled him to influence the latter’s commercial conduct in such a way that it would be able to derive an advantage from his knowledge about the cartel.

177 Thus, the applicant was already in possession of information about the operation of the cartel, in particular, about its main aspect, and had that information on 1 July 2001, which enabled it to adjust its commercial conduct to the collusive arrangements from that date.

178 The Commission therefore did not err in taking 1 July 2001 as the starting date of the applicant’s participation in the infringement.

– The applicant’s arguments concerning certain particular technical meetings

179 In what follows, the Court will examine the content of certain technical meetings held during the period of the applicant’s participation in the cartel.

180 In the first place, as regards the technical meeting held on 4 and 5 September 2001 (recital 164 to the contested decision), the applicant claims that it cannot be found liable in respect of that meeting, since only a general anti-competitive content was established by the Commission in the contested decision, without any reference to the applicant’s involvement in any unlawful activity.

181 In that regard, it should be borne in mind that that technical meeting formed part of a long series of anti-competitive meetings constituting a single and continuous infringement and that the Commission has evidence that there was generally at least one discussion of prices during the technical meetings (see paragraph 153 above).

182 In addition, as the Court observed at paragraph 176 above, Mr G. was aware when he first took up his post with the applicant, on 1 July 2001, and therefore at the meeting held on 4 and 5 September 2001, that the technical meetings gave rise to anti-competitive discussions of the prices of paraffin waxes.

183 Next, it should be borne in mind that, according to the case-law cited at paragraphs 148 and 149 above, when an undertaking’s participation in an anti-competitive meeting has been established, it is for that undertaking to establish that it distanced itself from the anti-competitive content of that meeting, which the applicant has not done in the present case.

184 Accordingly, the Commission did not err in finding the applicant liable in respect of the technical meeting held on 4 and 5 September 2001.

185 In the second place, it is appropriate to examine the technical meeting held in Budapest (Hungary) on 21 and 22 February 2002 (recital 165 to the contested decision).

186 The applicant claims that the Eni note to which the Commission refers in the contested decision does not constitute an indicium of any collusion on prices at that meeting.

187 As regards the content of the Eni note, the Commission cited the following passage in the contested decision:

‘The meeting which took place in an extremely transparent climate has confirmed — also taking into account the differences of the individual markets and the different strategies with respect to products and marketing — the possibility to increase the revenue in line with the actions we already adopted. We can therefore continue the actions under way of revision of contractual formats and relative prices which will naturally involve our major clients/distributors of paraffin.’

188 According to the contested decision, the content of that note shows that discussions on price levels took place. That interpretation must be confirmed. The fact that the Eni note mentions the revision of prices as being the step to continue in the light of the discussions carried out at the meeting indicates that the participants exchanged information on prices. That, moreover, is borne out by Shell’s leniency application of 30 March 2005, which includes the technical meeting in question on the list headed ‘Overview of meetings and communications concerning prices’.

189 In the light of those considerations, the applicant cannot seriously deny that that meeting formed part of the main aspect of the infringement. Since the applicant was present at that meeting without showing that it distanced itself from the anti-competitive content of the meeting, the Commission did not err in holding the applicant liable in respect of that technical meeting.

190 In the third place, it is appropriate to examine the technical meeting held in Munich (Germany) on 27 and 28 February 2003 (recital 169 to the contested decision).

191 The Commission cites a Sasol statement in the contested decision, according to which ‘the need of a price increase was discussed in the … meeting’.

192 The applicant relies on the established principle that the statement of a single undertaking, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof that an infringement has been committed (see paragraph 117 above).

193 However, that is not the case here. As is clear from recital 169 to the contested decision, Shell and Repsol had independently confirmed that the technical meeting in question had an anti-competitive content. While it is true that those undertakings did not specify that conduct, it should be borne in mind that the Commission has evidence that at least one discussion on prices generally took place at the technical meetings (see paragraph 153 above).

194 Next, it should be borne in mind that, according to the case-law cited at paragraphs 148 and 149 above, where an undertaking’s participation in an anti-competitive meeting has been established, it is for that undertaking to show that it distanced itself from its anti-competitive content, which the applicant has not done in the present case.

195 In the light of those considerations, it must be established, contrary to the applicant’s assertions, that that meeting forms part of the main aspect of the infringement. As the applicant was present at that meeting without having shown that it distanced itself from its anti-competitive content, the Commission did not err in finding the applicant liable in respect of that meeting.

196 In the fourth place, it is appropriate to examine the technical meeting held in Hamburg (Germany) on 11 and 12 May 2004 (recital 174 to the contested decision).

197 In that regard, the handwritten note found at Total France’s premises contains the following:

‘-> Sasol [EUR]40 /[USD]50 — End of July.

-> We: 38 — 28.

-> 1 July —

+ FRP:70 -> [EUR]6000/T

+ Tealight: 50 -> [EUR]500/T

+ Microwax: 25 -> [EUR]50/T

…

-> → [EUR]40/T Slack Wax’.

198 The applicant claims that that note is merely an aide-mémoire prepared by Total, concerning unilateral conduct on the part of Sasol, and does not demonstrate the existence of an agreement between Sasol and Total, still less between those two undertakings and the applicant.

199 It should be observed that that alternative interpretation supplied by the applicant is contradicted by the statements of the other undertakings that participated in that technical meeting. Sasol stated that the participants had discussed an increase in prices and Shell indicated that an increase in prices had been agreed on during that technical meeting. The Commission cites at recital 174 to the contested decision the Shell statement, the terms of which are as follows:

‘Sasol was pushing for a price increase for paraffin waxes. It was also agreed that Sasol would take the lead in implementing it. The price increase took effect between 1 July … and 1 August 2004.’

200 Furthermore, in its statement of 12 August 2005, Sasol also asserted that, ‘[b]ecause of drastically increased raw material prices, HOS [now Sasol] sent out a chain letter announcing a price increase of EUR 5-7/100kg on June 14, 2004 …’ and that ‘[o]n June 29, 2004, HOS received a price increase letter of Hansen & Rosenthal announcing an increase of EUR 5.20-6.80/100kg’.

201 It therefore follows from that statement that Sasol meant to increase its prices by exactly the same amount as that indicated in the Total note and that, subsequently, H&R also sent a letter announcing price increases, indicating an increase very close to Sasol’s.

202 In any event, it should be borne in mind that, according to the case-law cited at paragraphs 148 and 149 above, when it has been established that an undertaking participated in an anti-competitive meeting, it is for that undertaking to show that it distanced itself from the anti-competitive content of the meeting, which the applicant did not do in the present case.

203 In the light of those factors, it must be concluded that the Commission had sufficient proof to conclude that a price-fixing agreement was reached at that meeting and the applicant’s arguments must be rejected. The Commission therefore did not err in finding the applicant liable in respect of that technical meeting.

204 In the fifth place, it is appropriate to examine the technical meeting held in Hamburg on 23 and 24 February 2005 (recital 177 to the contested decision).

205 The Commission cites, in the contested decision, a MOL note containing the following:

‘ExxonMobil IV.1 [= 1 April] EUR 15/t’

‘Shell Raised price’

‘Sasol IV.12 [= 12 April] Price raise’

206 Sasol admitted that a price increase was discussed and that it communicated its own price increase to the other participants. The applicant also acknowledged the existence of a ‘discussion on general pricing trends, during which Exxon and Sasol revealed their price increases, decided at internal level’, in its reply to the statement of objections. Both Shell and Sasol described that meeting as collusive in the statements referred to in the contested decision.

207 During the proceedings before the Court, the applicant claimed that it could not be found liable in respect of that meeting, since no agreement on prices had been concluded and since the evidence in the Commission’s possession shows at most the existence of bilateral collusion concerning Repsol and Total. In any event, the MOL note shows that the applicant did not participate in an infringement, as only ExxonMobil, Shell and Sasol are mentioned as participants.

208 That argument cannot succeed. It should be borne in mind that, according to the case-law, in order to establish the existence of an agreement, it is sufficient to demonstrate a concurrence of wills between the participants with the aim of fixing or aligning prices (see paragraph 96 above). In any event, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as to influence an actual or potential competitor’s conduct on the market (see paragraph 98 above). The exchange of information on prices by competitors emerges incontestably from the MOL note and the undertakings’ statements dispel all reasonable doubt as regards the collusive nature of the technical meeting. In addition, it also follows from the evidence gathered by the Commission that the content of the meeting related to the main aspect of the infringement.

209 According to the case-law cited at paragraphs 148 and 149 above, when it has been established that an undertaking participated in an anti-competitive meeting, it is for that undertaking to establish that it distanced itself from the anti-competitive content of the meeting, which the applicant has not done in the present case.

210 It follows that the Commission did not err in finding the applicant liable in respect of that technical meeting.

211 In the light of all of the foregoing considerations, it must be concluded that the Commission was correct to find, in the contested decision, that the infringement in this instance concerned the collusive activities during which the fixing of the prices of paraffin waxes was discussed. Likewise, the Commission has shown to the requisite legal standard that at certain meetings the participants arrived at price fixing agreements.

212 In the light of the foregoing, the Commission’s finding that the applicant participated in the main aspect of the infringement between 1 July 2001 and 28 April 2005 must be upheld and the first part of the second plea must therefore be rejected.

– The inclusion in the calculation of the value of sales of sales by ‘companies abroad’ and by H&R Sales, acquired in 2004

255 The applicant claims that the relevant turnover of the ‘companies abroad’ and of H&R Sales should not be included in the value of sales by H&R, since those companies were acquired only in 2004 and no objection based on participation in the cartel was raised against them. In any event, the Commission ought to have ignored the turnover of the conversion facilities, which do not produce paraffin waxes.

256 In that regard, it should be borne in mind that, according to section 13 of the 2006 Guidelines, in determining the basic amount of the fine to be imposed, the Commission is to take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA.

257 Furthermore, according to the case-law, the value of sales to be taken into account is not calculated on the basis of the turnover achieved by the sale of the goods actually affected by the infringement, but on the basis of the turnover generally achieved on the market affected by the infringement by the undertaking within the meaning of Article 81 EC that participated in the infringement (see Case T-211/08 Putters International v Commission [2011] ECR II-3729, paragraphs 59 to 61 and the case-law cited).

258 Accordingly, the mere fact that the ‘companies abroad’ and H&R Sales did not participate in the cartel before 2004 has no impact on the fact that in 2004 those companies became parts of the undertaking involved in the cartel, having been acquired by the H&R group. It should be emphasised in that regard that in the statement of objections, in particular at paragraphs 261 to 264, the Commission had already described the H&R group as an undertaking within the meaning of Article 81 EC and that the applicant did not dispute that characterisation in its reply to the statement of objections.

259 Furthermore, in the present case two companies in the H&R group were directly involved in the cartel in 2004, namely H&R Wax Company Vertrieb and H&R ChemPharm, owing to the participation in the technical meetings of Mr G. and Mr H., who occupied posts in those companies in 2004.

260 The applicant put a number of written questions to the applicant in order to clarify the identity of the ‘companies abroad’ and ‘the capital links between those companies, H&R Ölwerke Schindler, ESP International, H&R Sales and the H&R group’, in order to be able to locate those companies in the structure of the H&R group.

261 In its answer, the applicant expressly denied that it held shares in the ‘companies abroad’ and declined to state their identity.

262 The applicant also denied holding shares in H&R Ölwerke Schindler, ESP International and H&R Sales. That answer was manifestly untrue, as the applicant acknowledged at the hearing, after being confronted with the evidence in the Court’s possession. In fact, ESP International is a wholly-owned subsidiary of the applicant, while H&R Ölwerke Schindler is a wholly-owned subsidiary of the former company. Last, in 2004 H&R Sales was a wholly-owned subsidiary of H&R Ölwerke Schindler. The share capital of those companies was therefore wholly owned by the applicant during the relevant period.

263 In the light of the foregoing, the applicant has not shown that the Commission had erred in any way by including the value of sales by the ‘companies abroad’ and by H&R Sales in the value of sales by the H&R group for the purpose of calculating the value of sales for 2004.

264 Nor can the applicant validly claim that the Commission added the turnover of the conversion facilities, which do not produce paraffin waxes. As is clear from the explanations provided by the Commission in the defence, it arrived at the sum of EUR 26.3 million by adding only the four categories of paraffin waxes (hydrogenated solid paraffin, non-hydrogenated solid paraffin, paraffin wax and hydrogenated wax specialities) set out in the first column on page 2 of the applicant’s letter of 23 April 2008 and excluding both slack wax and the turnover of the conversion facilities. It did likewise with respect to the first and second columns of figures on page 12 of that letter (value of sales by the ‘companies abroad’ and by H&R Sales).

265 The Commission, which therefore took the value of sales by H&R for 2004 by taking into account the total turnover of the companies belonging to that undertaking achieved on the market affected by the cartel, acted consistently with the 2006 Guidelines and the applicable case-law and did not infringe Article 23(3) of Regulation No 1/2003. The present complaint must therefore be rejected.

– The increase in the average value of sales during the reference period owing to the taking into account of the turnover of the companies acquired in 2004

266 In the applicant’s submission, the fact that the turnover of the companies acquired in 2004 was taken into account had the effect that the value of sales taken into consideration, calculated as the average of values of sales for 2002 to 2004, no longer reflects the importance of the infringement.

267 It should be observed that a merger with an entity or the acquisition of an entity which did not participate in the infringement before the merger or acquisition may have an impact on the calculation of the value of sales where the value of sales after the merger or acquisition no longer constitutes, with respect to the total duration of participation in the infringement, an ‘appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of [the] undertaking in the infringement’ within the meaning of section 6 of the 2006 Guidelines (see paragraph 217 above).

268 In the present case, the Commission included in the reference period used for the calculation of the value of sales the three complete years of H&R ChemPharm’s participation in the infringement (2002 to 2004). The first period in respect of which the value of sales of the reference period was extrapolated (the period from 1 July 2001 to 31 December 2001) preceded the acquisition, so that the value of sales of 2002 and 2003 was representative in respect of it. The second period in respect of which the value of sales of the reference period was extrapolated (the period from 1 January 2005 to 28 April 2005) followed the acquisition, so that the value of sales of 2004 was representative in respect of it.

269 Therefore, in the particular circumstances of the present case, the Court considers that the average of the value of sales by the H&R group for 2002 to 2004 constitutes an ‘appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of [the] undertaking in the infringement’ for the entire duration of H&R ChemPharm’s participation.

270 Accordingly, the present complaint must be rejected.

271 It should be added that, in its judgment of 11 July 2014 in the related Case T‑540/08 Esso and Others v Commission [2014] ECR, the Court reduced the amount of the fine imposed on Esso Société anonyme française in order to reflect the fact that the value of sales by the undertaking ExxonMobil, to which it belonged, had almost doubled following the merger between Exxon and Mobil in 1999 and that the value of sales, calculated solely on the basis of post-merger sales in 2000 to 2002, had also been extrapolated to the period 1992 to 1999, when only Mobil France had participated in the cartel.

272 Therefore, the factual context of Esso and Others v Commission, (paragraph 271 above) differs on a crucial point from that of the present case, since in that case the value of ExxonMobil’s post-merger sales did not constitute an ‘appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of [the] undertaking in the infringement’ with respect to the entire duration of the infringement by Esso Société anonyme française.

– The alleged double counting of the turnover of the ‘companies abroad’

273 The applicant claims that the Commission took into account the turnover of EUR 9.2 million of the ‘companies abroad’ twice. It claims that the difference between the first column of figures on page 2 of its letter of 23 April 2008 (EUR 27.5 million), which includes ESP International, and the second column (EUR 18.3 million), without ESP International, is precisely EUR 9.2 million. The Commission therefore took ESP International’s turnover into account twice.

274 In the reply, the applicant makes the following assertion:

• However, even if the companies [abroad] (that is to say, ESP International) and H&R Sales GmbH were imputed for 2004 …, the figures on which the Commission relied are false and too high. The Commission incorrectly added the turnover of the companies [abroad] twice. The true figure for 2004 would be EUR 26.3 million with the companies [abroad] and EUR 30.2 million if H&R Sales were also added. In neither case would the total turnover for 2004 be EUR 39.4 million, the figure used by the [Commission]. That is demonstrated by the following:

• [The] intermediate amount of EUR 26.3 million [resulting from the first column of figures on page 2 of the letter of 23 April 2008] already includes the turnover of the companies [abroad], which comes to EUR 9.2 million, as is quite clear from [that letter]. The [Commission] therefore [makes] the error … of again adding to that amount the sum of EUR 9.2 million in respect of the companies [abroad], thus doubling that part of the turnover. Thus, even taking the companies [abroad] into account, the [Commission] could validly take into consideration only an amount of EUR 26.3 million. If H&R Sales GmbH were further added, that amount would come to EUR 30.2 million — in neither case, however, [would it come] to EUR 39.4 million.’

275 In the first place, it should be observed that it is not possible to reconcile the arguments which the applicant put forward during the judicial proceedings with the information which it communicated in the context of the administrative procedure and which forms part of the file submitted to the Court.

276 First, it should be observed that, in its reply to the statement of objections, the applicant stated that the value of H&R’s sales on the paraffin waxes market (without taking into account sales by Tudapetrol and sales of wax emulsions and slack wax) was equivalent to EUR 38.99 million in 2004, a figure almost consistent with that calculated by the Commission (EUR 39.4 million).

277 Second, the applicant also stated, at the hearing before the hearing officer, that the acquisition of the new refinery at Hamburg-Neuhof (Germany), belonging to H&R Ölwerke Schindler, its turnover on the ‘paraffin products’ market had increased almost 2.5 times. It also provided figures in its letter of 8 December 2005 in that regard. According to those data, owing to the acquisition of new production capacity in 2004, the volume of its sales of paraffin waxes increased from 43 000 tonnes in 2003 to 84 400 tonnes in 2004. The applicant also stated that the price of those products had increased in 2004.

278 According to the argument which the applicant put forward during the judicial proceedings, however, the value of sales by the H&R group increased only from EUR 24 107 000 in 2003 to EUR 26 300 000 in 2004. That alleged increase is not consistent with the growth in production and sales resulting from the acquisition of the Hamburg-Neuhof refinery and manifestly contradicts the information supplied by the applicant in the reply to the statement of objections.

279 Third, it should be observed that there are serious doubts as to the applicant’s assertion that the ‘companies abroad’ are identical to H&R ESP International.

280 In its letter of 8 December 2005, the applicant states that ESP International is the 100% parent company of H&R Ölwerke Schindler. In addition, it is apparent from the file that H&R Ölwerke Schindler and ESP International are companies governed by German law and their production factory is at Hamburg-Neuhof.

281 The Court is unable to understand why the applicant would have chosen to conceive the term ‘companies abroad’ in order to communicate the value of sales by only H&R ESP International, which is a company governed by German law and whose production factory is in Germany.

282 Furthermore, as the Commission correctly observes, the applicant did not at any time indicate in the numerous letters which it sent to the Commission during the administrative procedure that H&R ESP International corresponded to, or was included in, the concept of ‘companies abroad’. On the contrary, on the first page of the letter of 23 April 2008, the ‘companies abroad’ and H&R ESP International are presented side by side, actually giving the impression that they are two entities being treated separately. Furthermore, the reasons provided by the applicant in that letter to explain why the value of sales by those companies should not be taken into account are also separate. For the ‘companies abroad’, the applicant submits that they are ‘not covered by the investigation’, while for H&R ESP International it emphasises that that company was acquired only in 2004, which resulted in a ‘rise in turnover’.

283 Next, in its letter of 8 December 2005, the applicant also refers to the ‘sister companies’ of H&R Ölwerke Schindler that manage its conversion facilities abroad. In addition, according H&R Wasag’s activity report for 2004, the acquisition of the activities in the refinery specialities resulting from BP concerned only H&R Ölwerke Schindler, in Germany, and also H&R ESP Nuth BV, in the Netherlands. What is more, in its letter of 7 July 2008 the applicant states that the companies abroad, at Corryton and Chorley in the United Kingdom, achieved, according to an initial estimate, a turnover of EUR 8.6 million by the sale of paraffin waxes in 2004. Those factors indicate that the H&R group included companies established abroad, unlike H&R ESP International, which is established in Germany.

284 On the basis of the foregoing, it must be concluded that the applicant cannot validly take issue with the Commission for having added to the initial amount of EUR 26.3 million both the value of sales by H&R ESP International and that of the ‘companies abroad’. On the contrary, it is appropriate to take the view that, when calculating the value of sales for 2004, the Commission acted wholly in accordance with sections 15 and 16 of the 2006 Guidelines, cited at paragraph 218 above.

285 In the second place, the applicant cannot validly rely on the fact that the detailed calculation of the value of sales does not appear in the contested decision, but was presented by the Commission in its defence. First, the Commission relied on the figures which the applicant itself supplied in the administrative procedure and arrived at an amount which corresponds broadly to the information supplied by the applicant in its reply to the statement of objections and before the hearing officer. Second, precisely in order to enable the applicant to respond twice in writing to the content of the defence, the Court expressly invited the applicant to respond in writing to the Commission’s rejoinder with respect to the third plea.

286 In the third place, it should be observed that, during the judicial proceedings, the Court put a number of written questions to the applicant in order to obtain further clarification of the factual context.

287 In particular, the Court expressly asked the applicant to identify the ‘companies abroad’. However, the applicant refused to specify the companies in question, in spite of the fact that it sought annulment or a variation of the contested decision on the basis of an argument that could not be interpreted without those companies being identified. Nor did the applicant explain the relationship between the ‘companies abroad’ and ESP International, H&R Ölwerke Schindler, H&R Sales and itself and it even denied that the companies in question were its own subsidiaries.

288 It should be added that the reason why the applicant proposes, in the alternative, at paragraph 51 of the reply, that H&R Sales’ turnover should be added to the amount of EUR 26.3 million in the first column on page 2 of its letter if 23 April 2008 is not clear. In that letter, the applicant stated that the turnover of H&R Ölwerke Schindler was that of H&R Sales, observing that ‘the “own distribution” by OWS — H&R Sales GmbH — is not, as we understand it, covered by the request for information’. However, in its letter of 8 December 2005 the applicant stated that H&R Ölwerke Schindler was a wholly-owned subsidiary of ESP International. It is therefore impossible to understand why the applicant proposes, in the alternative, that the turnover of a subsidiary of ESP International should be added to the amount of EUR 26.3 million, if it objects as a matter of principle to the turnover of the ‘companies abroad’ — which it assimilates in the reply to ESP International — being added to that amount.

289 Having regard to all of the foregoing considerations, in particular those set out at paragraphs 276 and 277 above, the Commission cannot be criticised for having erred, in the contested decision, when determining the value of sales for 2004. Thus, the applicant’s present complaint must be rejected in so far as it seeks the annulment in part of the contested decision.

290 In addition, the applicant’s claims must also be rejected in so far as they seek a variation of the amount of fine by the Court in the exercise of its unlimited jurisdiction. Following the detailed examination of the file submitted to it in the context of the present case, the Court considers, first, that the applicant’s arguments and the information communicated by it do not justify such a variation and, second, that the material in the file, particularly the items referred to at paragraphs 276 and 277 above, support the finding that the value of sales taken into account by the Commission for 2004 adequately reflects the gravity of the infringement committed by the applicant.

291 It follows that the present complaint must be rejected as, accordingly, must the third plea in its entirety.