JUDGMENT OF THE GENERAL COURT (Fourth Chamber) · JUDGMENT OF THE GENERAL COURT (Fourth Chamber) 15 September 2011 * (Competition – Agreements, decisions and concerted practices

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

15 September 2011 *

(Competition – Agreements, decisions and concerted practices – Market for methacrylates – Decision finding an infringement of Article 81 EC and Article 53

of the EEA Agreement – Fines – Gravity of the infringement – Attenuating circumstances – Non-implementation in practice of the offending agreements or

practices)

In Case T-216/06,

Lucite International Ltd, established in Southampton (United Kingdom),

Lucite International UK Ltd, established in Darwen (United Kingdom),

represented by R. Thompson QC, S. Rose and A. Chandler, Solicitors,

applicants,

v

European Commission, represented initially by V. Bottka, F. Amato and I. Chatzigiannis, and subsequently by V. Bottka, I. Chatzigiannis and F. Arbault, acting as Agents,

defendant,

APPLICATION for a reduction in the fine imposed on the applicants under Article 2(d) of Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates),

THE GENERAL COURT (Fourth Chamber),

composed of N.J. Forwood, acting as President, I. Labucka (Rapporteur) and K. O’Higgins, Judges,

* Language of the case: English.

EN

JUDGMENT OF 15. 9. 2011 – CASE T-216/06

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Registrar: S. Spyropoulos, Administrator,

having regard to the written procedure and further to the hearing on 7 July 2010,

gives the following

Judgment

Background to the dispute

1 By Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates) (‘the contested decision’), the Commission found, inter alia, that a certain number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating, during various periods between 23 January 1997 and 12 September 2002, in a complex of anti-competitive agreements and concerted practices in the methacrylates industry which covered the whole territory of the EEA (Article 1 of the contested decision).

2 According to the contested decision, this was a single and continuous infringement involving the following three polymethacrylate (‘PMMA’) products: PMMA moulding compounds, PMMA solid sheet and PMMA sanitary ware. The infringement consisted in discussing prices and agreeing, implementing and monitoring price agreements either in the form of price increases, or at least the stabilisation of existing price levels; discussing the passing on of additional service costs to customers; exchange of commercially important and confidential market and/or company relevant information, and participating in regular meetings and other contacts to facilitate the infringement (Article 1 of and recitals 1 to 3 to the contested decision).

3 The contested decision was addressed to: Degussa AG, Röhm GmbH & Co. KG and Para-Chemie GmbH (jointly referred to as ‘Degussa’); Total SA, Elf Aquitaine SA, Arkema SA (formerly Atofina SA), Altuglas International SA and Altumax Europe SAS (jointly referred to as ‘Atofina’); Quinn Barlo Ltd, Quinn Plastics NV and Quinn Plastics GmbH (jointly referred to as ‘Barlo’); ICI plc; as well as to the applicants.

4 The first applicant, Lucite International Limited, formerly (until April 2002) Ineos Acrylics Limited, is the holding and ultimate parent company of around 30 acrylics producers in the world. The second applicant, Lucite International UK Limited, formerly Ineos Acrylics UK Trader Limited, is a wholly-owned subsidiary of Lucite International Limited and the main producer of methacrylates in the Lucite group (recitals 32 to 34 to the contested decision) (jointly referred to as ‘the applicants’ or ‘Lucite’).

LUCITE INTERNATIONAL AND LUCITE INTERNATIONAL UK v COMMISSION

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5 The investigation leading to the adoption of the contested decision was initiated following the submission by Degussa on 20 December 2002 of a request for immunity under the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the Leniency Notice’).

6 On 25 and 26 March 2003 the Commission carried out inspections at the premises of Atofina, Barlo, Degussa and Lucite.

7 On 11 July 2003 Lucite submitted an application for immunity or a reduction in the amount of the fine under the Leniency Notice (recital 66 to the contested decision).

8 On 17 August 2005 the Commission adopted a statement of objections concerning an infringement in the methacrylates industry addressed to, among others, the applicants (recital 85 to the contested decision).

9 The applicants’ response to the statement of objections is dated 2 November 2005.

10 A hearing was held on 15 and 16 December 2005 and was attended by the applicants (recital 87 to the contested decision).

11 On 31 May 2006, the Commission adopted the contested decision.

12 Article 1(j) and (k) of the contested decision states that the applicants participated in the infringement referred to in paragraph 1 above from 2 November 1999 until 12 September 2002.

13 Article 2(d) of the contested decision imposes a fine of EUR 25.025 million on the applicants, for which they are held jointly and severally liable.

14 According to the contested decision, the starting date of the infringement by Lucite was the date of transfer of the legal ownership of the ICI Acrylics business unit, which was purchased by the Lucite group from ICI. ICI Acrylics was responsible, within the ICI group, for the manufacture and sale of PMMA-based products, and participated directly in the infringement concerned from 23 January 1997. The Commission therefore uses the date of 2 November 1999 for the purpose of attributing liability between ICI and Lucite (recitals 28, 34, 291, 292, and 296 to the contested decision).

15 As regards the calculation of the fine, the Commission, in the first place, examined the gravity of the infringement and found, first of all, that in view of the nature of the infringement and the fact that it had covered the entire territory of the EEA, the infringement in question was a very serious infringement within the meaning of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3) (‘the Guidelines’) (recitals 319 to 331 to the contested decision). Next, the Commission


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applied differential treatment to the undertakings participating in the infringement and placed Lucite, by reason of its turnover in the EEA for the three PMMA products, in the second category. On that basis, it applied a starting amount of EUR 32.5 million to Lucite (recitals 332 to 336 to the contested decision).

16 In the second place, the Commission examined the duration of the infringement and found that Lucite had participated in the infringement for 2 years and 10 months. It stated, however, that since Lucite’s evidence had enabled the Commission to find an infringement of longer duration than had been envisaged before it adduced its evidence (namely the period 1 March 2001 to 12 September 2002), those elements would not be taken into account in the setting of the fine, in accordance with point 23 of the Leniency Notice. Thus, the starting amount of Lucite’s fine was increased by 10% (instead of 25%) and the basic amount therefore came to EUR 35.75 million (recitals 351 to 354 and 422 to and footnote No 236 of the contested decision).

17 In the third place, the Commission did not find that any aggravating or attenuating circumstances applied in the case of Lucite (recitals 355 to 397 to the contested decision).

18 In the fourth place, and last of all, the Commission applied the Leniency Notice and decided, in application of the second indent of point 23(b) of that notice, to reduce by 30% the fine that would otherwise have been imposed on Lucite (recitals 411 to 413 to the contested decision). Thus, the final amount of Lucite’s fine was set at EUR 25.025 million.

Procedure and forms of order sought

19 By application lodged at the Registry of the Court on 16 August 2006, the applicants brought the present action.

20 Upon hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, requested the parties to reply to certain questions and to produce certain documents. The parties complied with those requests within the prescribed period.

21 As one member of the Chamber was unable to sit in the present case, the President of the General Court designated another judge to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure.

22 The parties presented oral argument and replied to the questions put by the Court at the hearing on 7 July 2010.

23 The Commission submitted a new request, asking the Court to increase the amount of the fine imposed on the applicants.


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24 The applicants claim that the Court should:

– annul Article 2(d) of the contested decision, in that the amount of the fine imposed on them is fixed therein at EUR 25.025 million, and, in the exercise of its unlimited jurisdiction, reduce the amount of that fine to EUR 18 268 750 or a lower amount as the Court deems appropriate;

– order the Commission to pay the costs.

25 The Commission contends that the Court should:

– dismiss the application as unfounded;

– increase the fine imposed on the applicants;

– order the applicants to pay the costs.

Law

1. The request to annul Article 2(d) of the contested decision and to reduce, in the exercise of the Court’s unlimited jurisdiction, the amount of the fine imposed under that provision

26 The applicants put forward a single plea in law in support of their request, by which they argue that the fine imposed on them is too high owing to the Commission’s failure to take account of Lucite’s particular circumstances, thereby infringing the obligation to state reasons, the Guidelines and the principles of the protection of legitimate expectations and equal treatment. They submit that the Court should accordingly reduce the fine imposed on them by at least 25%.

27 The applicants acknowledge that they are responsible for the acts carried out in the name of Lucite International UK Limited by former ICI employees who continued to participate in anti-competitive discussions after the effective transfer of ICI Acrylics on 2 November 1999, and until 12 September 2002. However, they maintain that theirs was a particular situation owing to the fact that, in essence, through the acquisition of the acrylics business of ICI Acrylics on 2 November 1999, Lucite ‘inherited an undisclosed cartel’ in which ICI had participated since 23 January 1997, and that Lucite put in place a commercial strategy which was contrary to the rationale of the cartel and played a decisive role in undermining it.

28 They therefore submit that, in determining the amount of the fine, the Commission ought to have taken the following circumstances into account:

– the lack of involvement in the cartel by shareholders, senior management and newly-recruited employees in the upper echelons, and the fact that


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Lucite’s participation in the infringement was limited to participation by former ICI employees in the business unit or at a lower level;

– the fact that the commercial policy put in place by Lucite after the acquisition of ICI’s acrylic business was decisive in undermining the cartel and that, therefore, Lucite’s role was quite different from that of the main participants in the cartel, namely Atofina, Degussa and ICI.

29 In the applicants’ submission, under the Guidelines, those circumstances were relevant for determining the starting amount of the fine (first part of the plea). If they were not taken into account at that stage, they should at the very least have been taken into account at the stage of assessing attenuating circumstances applicable to Lucite (second part of the plea).

The first part of the single plea in law, relating to determination of the starting amount of the fine

Arguments of the parties

30 The applicants criticise the Commission for having failed to take into account in the determination of the starting amount of the fine, in particular in the application of differential treatment (recitals 332 to 336 to the contested decision), the circumstances referred to in the response to the statement of objections, set out, in essence, in paragraph 28 above.

31 In the first place, the applicants submit that the failure to take those factors into account in relation to the starting amount of the fine constitutes a failure to state reasons which vitiates the contested decision.

32 In the second place, that failure infringes the Guidelines.

33 In that regard, the applicants state that the Commission must comply with the terms of its own Guidelines when setting the amount of fines. First, the Guidelines provide that within each of the three categories of infringements (minor, serious, very serious), the scale of fines will make it possible to apply differential treatment to undertakings according to the ‘nature of the infringements committed’. Second, the Guidelines provide that ‘[w]here an infringement involves several undertakings (e.g. cartels), it might be necessary in some cases to apply weightings to the amounts determined within each of the three categories in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition …’.

34 In the present case, the Commission divided the participants in the cartel into different categories on the sole basis of their turnover, except in the case of Barlo, which received a reduction of 25% in the starting amount of the fine because of its limited knowledge of the overall scheme.


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35 Consequently, the contested decision is flawed either on the ground that the Commission failed to examine ‘the nature of the infringement committed’, the ‘role played’ or the ‘specific weight and, therefore, the real impact of the offending conduct’ when examining the gravity of the infringement committed by Lucite, or because it failed to attach any significance to the factors identified by Lucite.

36 The applicants also reject the Commission’s argument that the factors which they invoke can be taken into account only at the stage of the assessment of attenuating circumstances. Those factors, in particular the arguments relating to the undermining of the cartel by the aggressive price competition, are directly relevant to the real impact of Lucite’s offending conduct in the determination of the starting amount of the fine.

37 In any event, the applicants maintain that even if the Commission was not legally bound to take the factors relating to the individual situation of an undertaking into account at the stage of determining the starting amount, it was clearly legally entitled to do so. They observe that the Commission took individual factors into account in determining the starting amount of the fine imposed on Barlo, and applied a 25% reduction (recitals 335 and 336 to the contested decision).

38 Lastly, the statement of objections took the same approach and stated, at paragraph 311, that ‘[i]f and when any penalty [was] to be assessed, the Commission [would] take full account of the part played by each of the participants and the size of the market for the particular product concerned’ and, at paragraph 392, that, in assessing the fine to be imposed on each of the undertakings, the Commission would take account of, inter alia, ‘[t]he role played by each undertaking as described above in the factual part of the present statement of objections’.

39 Third, the failure to take account of the abovementioned factors in the determination of the starting amount of the fine infringes the principles of the protection of legitimate expectations and of equal treatment. That infringement results from the breach of the Guidelines and also from the terms of the statement of objections, which indicated that the Commission would take account of the specific roles played by individual undertakings in setting the level of fines. In addition, the Commission infringed those principles by not adopting, in the light of the factors put forward by Lucite, a similar position to that which it adopted in respect of Barlo.

40 The Commission disputes the applicant’s arguments.

Findings of the Court

41 First of all, the applicants’ arguments relating to the wording of the statement of objections must be rejected, as they are based on an incorrect reading of that statement.


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42 Paragraphs 311 and 392 of the statement of objections state that, in the determination of the amount of the fine to be imposed on each undertaking, the Commission will take account of the role played by each of the participants. However, they do not indicate in any way that that would be done specifically at the stage of determining the starting amount of the fine, which is the subject-matter of the present part of the applicants’ single plea in law.

43 Next, it is appropriate to examine the complaint alleging infringement of the Guidelines.

44 Point 1A of the Guidelines, relied on by the applicants, deals with the assessment of the gravity of the infringement. It states as follows:

‘In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market.

Infringements will thus be put into one of three categories: minor infringements, serious infringements and very serious infringements.

…

Within each of these categories, and in particular as far as serious and very serious infringements are concerned, the proposed scale of fines will make it possible to apply differential treatment to undertakings according to the nature of the infringement committed.

It will also be necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect.

Generally speaking, account may also be taken of the fact that large undertakings usually have legal and economic knowledge and infrastructures which enable them more easily to recognise that their conduct constitutes an infringement and be aware of the consequences stemming from it under competition law.

Where an infringement involves several undertakings (e.g. cartels), it might be necessary in some cases to apply weightings to the amounts determined within each of the three categories in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type. …

Thus, the principle of equal punishment for the same conduct may, if the circumstances so warrant, lead to different fines being imposed on the


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undertakings concerned without this differentiation being governed by arithmetic calculation.’

45 It should be borne in mind in that regard that the methodology referred to in the Guidelines for the determination of the amount of the fine follows a model whereby a basic amount is set according to the gravity and duration of the infringement, to which increases may be applied to take account of aggravating circumstances, and reductions may be applied to take account of attenuating circumstances.

46 It is, moreover, clear from the case-law that, in the application of the Guidelines, a distinction must be drawn between the assessment of the gravity of the infringement, which is used to determine the starting amount of the fine, and the assessment of the relative gravity of the participation of each of the undertakings concerned, that latter issue having to be examined in the context of a possible application of aggravating or mitigating circumstances (Case T-73/04 Carbone-Lorraine v Commission [2008] ECR II-2661, paragraph 100; see also, to that effect, Case T-220/00 Cheil Jedang v Commission [2003] ECR II-2473, paragraph 189, and Case T-18/03 CD-Contact Data v Commission [2009] ECR II-1021, paragraph 95).

47 In particular, when determining the starting amount of the fine, the Commission is not required to assess the effects of the applicants’ own conduct. It is settled case-law that the effects to be taken into consideration in determining the general level of fines are not those resulting from the actual conduct which an undertaking claims to have adopted but those resulting from the whole of the infringement in which it participated (Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 153, and judgment of 12 November 2009 in Case C-554/08 P Carbone-Lorraine v Commission, not published in the ECR, paragraphs 21 and 24).

48 In the present case, the applicants do not dispute the gravity of the infringement as such, in which they participated with other undertakings, or the fact that that infringement is entirely imputable to them. The circumstances on which they rely in support of their request for a reduction in the amount of the fine all relate to aspects of their own conduct.

49 It follows from the foregoing that, when applying the Guidelines, any such factors should be taken into account at the stage of the assessment of aggravating and attenuating circumstances (points 2 and 3 of the Guidelines), in order to adjust the basic amount of the fine determined inter alia according to the gravity of the infringement in which they participated.

50 That finding is not called into question by the arguments based on the wording of point 1 A of the Guidelines.


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51 Admittedly, as the applicants state, the sixth paragraph of Section 1 A of the Guidelines provides for the possibility of applying weightings to the starting amounts to be applied to the various undertakings involved in a single infringement ‘in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type’.

52 However, apart from the fact that that paragraph does not set out a mandatory rule (‘it might be necessary in some cases’), it must also be observed that it concerns the taking into account not of the conduct attributable to each of the undertakings participating in a given infringement, but rather of objective differences which may be present between them, such as, inter alia, considerable disparity between their sizes.

53 The fact that the Guidelines include under aggravating circumstances the role of leader or instigator, or retaliatory measures against other undertakings and, under attenuating circumstances, an exclusively passive or ‘follow-my-leader’ role in the infringement, the non-implementation in practice of offending agreements or practices, or infringements committed as a result of negligence, indicate that the offending conduct of each undertaking falls to be assessed, if need be, at that stage (see, to that effect, Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraph 383).

54 In the present case, moreover, it was by taking account of such an objective difference, namely the relative weight of each undertaking according to its sales turnover in PMMA products in 2000 that the Commission applied differential treatment to the undertakings concerned, by placing Lucite in the second category (recitals 333, 334 and 336 to the contested decision).

55 The argument based on the wording of the third paragraph of Section 1 A of the Guidelines, to the effect that ‘[w]ithin each of these categories, and in particular as far as serious and very serious infringements are concerned, the proposed scale of fines will make it possible to apply differential treatment to undertakings according to the nature of the infringement committed’, must also be rejected. The concept of the ‘nature of the infringement’ must necessarily have the same meaning as that used in the first paragraph of Section 1 A of the Guidelines. Consequently, in the case of an infringement involving a number of undertakings, it does not refer to the nature of the offending conduct attributable to each of those undertakings, but rather to the nature of the infringement as a whole. Thus, that paragraph merely deals with a differentiation of the levels of penalties for different infringements in the same category.

56 Accordingly, the conclusion must be that, in not taking account of the circumstances relied on by applicants in the present case in the determination of the starting amount of the fine, the Commission did not disregard the Guidelines.


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57 Nor may the applicants successfully rely on the starting amount of the fine imposed on Barlo on the ground that ‘it is not clear whether Barlo took part in any collusive contacts concerning PMMA-moulding compounds or PMMA-sanitary ware’ and that ‘[t]herefore it seems that Barlo was not aware or could not necessarily have had knowledge of the overall scheme of the anti-competitive arrangements’ (recital 335 to the contested decision).

58 First, the Court observes that the manner in which the applicants have been treated is compatible with the methodology referred to by those Guidelines, as is evident from the foregoing, and it is not necessary to analyse that treatment in the light of the Guidelines, Barlo having brought its own action against the contested decision (Case T-208/06).

59 Second, regarding the complaint alleging infringement of the principle of equal treatment, it should be borne in mind that 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 C-227/04 P Lindorfer v Council [2007] ECR I-6767, paragraph 63 and the case-law cited). The applicants’ situation, however, is clearly in no way comparable to that which was behind the reduction in the starting amount for Barlo in recital 335 to the contested decision. The anti-competitive conduct attributed to the applicants, for which they have moreover acknowledged responsibility (see paragraphs 27 and 48 above), related to all of the products concerned by the infringement.

60 Similarly, the complaints relating to infringement of the obligation to state reasons and of the principle of the protection of legitimate expectations must also be rejected.

61 First, it is settled case-law that, as regards the fixing of fines for infringements of competition law, the Commission fulfils its obligation to state reasons when, in its decision, it indicates the factors which enabled it to measure the gravity and the duration of the infringement committed, and it is not required to include a more detailed account or figures relating to the method used to calculate the fine (see Case T-12/03 Itochu v Commission [2009] ECR II-883, paragraph 147 and the case-law cited). Moreover, the Guidelines indicate the factors which the Commission is to take into consideration in measuring the gravity and duration of the infringement. In those circumstances, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which it took into account in accordance with the Guidelines and which enabled it to determine the gravity of the infringement and its duration for the purposes of calculating the amount of the fine (see judgment of 28 April 2010 in Case T-448/05 Oxley Threads v Commission, not published in the ECR, paragraph 91 and the case-law cited).


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62 As apparent from the foregoing, the factors relied upon by the applicants are not relevant for the determination of the starting amount of the fine. Consequently, the fact that the Commission did not analyse them in that part of the contested decision in no way constitutes an infringement of the obligation to state reasons. Moreover, as rightly pointed out by the Commission, the contested decision sets out all the factors which are relevant under the Guidelines for assessing the gravity of the infringement (recitals 319 to 331) and explains, in particular, how the relative roles and importance of the participants in the infringement was taken into account in the calculation of their respective fines, in accordance with the Guidelines (recitals 332 to 336).

63 Second, the complaint relating to infringement of the principle of the protection of legitimate expectations is based entirely on the assumption that, in determining the starting amount of the fine to be imposed on the applicants, the Commission did not comply with the Guidelines and the wording of the statement of objections. The foregoing shows this assumption to be incorrect.

64 Lastly, as regards the request that the Court reduce the fine in the exercise of its unlimited jurisdiction, on the grounds sets out in paragraphs 47 and 48 above and in paragraph 88 below, the applicants’ line of argument will be examined subsequently, as part of the examination of attenuating circumstances.

65 Consequently, the first part of the plea must be rejected in its entirety.

The second part of the single plea in law, concerning the assessment of attenuating circumstances


66 The applicants consider that the contested decision is also vitiated because the Commission, in its assessment of the attenuating circumstances (recitals 372 to 396 to the contested decision), did not take account of the arguments put forward by Lucite in its response to the statement of objections, the essential points of which are set out in paragraph 28 above. That omission constitutes, first, a failure to state reasons with respect to the attenuating circumstances; second, infringement of the Guidelines; and, third, infringement of the principles of the protection of legitimate expectations and of equal treatment.

67 First, the applicants observe that the reasons why the shareholders and senior management of Lucite were never aware of the anti-competitive activities in question were explained in detail in the second part of Lucite’s response to the statement of objections. The applicants further maintain that it is clear from the wording of the statement of objections that the Lucite employees involved in the cartel were all ICI middle managers who had participated in unlawful activities long before the business was transferred to Lucite and whose participation in those activities became increasingly difficult as Lucite’s commercial strategy was applied.


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68 Second, the applicants submit that they specifically drew the Commission’s attention to the arguments connected with their role in disrupting the cartel in their response to the statement of objections and at the administrative hearing.

69 That strategy consisted, in essence, in expanding production capacity and maximising use of that capacity in order to be the lowest unit-price producer and thereby gain market shares. The introduction of that strategy led to an aggressive pricing policy and an increase in sales and Lucite’s market share. Such a strategy was therefore clearly incompatible with agreements with competitors to limit production or compete on prices.

70 The applicants submit that the evidence in the case-file confirms that Lucite successfully implemented that strategy in a way that was recognised by its competitors and that it rendered the continued operation of the cartel impossible.

71 First, the applicants rely on the witness statement made by Atofina as part of its leniency application, which stated that at the beginning of 2000, when Lucite (then operating under the name Ineos) acquired ICI’s acrylic business, the understanding between PMMA sheet producers ‘imploded’.

72 The applicants further observe that the cartel was completely dormant for more than a year between 19 July 2001 and 12 August 2002, as neither the statement of objections nor the contested decision mentions any anti-competitive activity during that period.

73 Second, the applicants refer to certain passages of the statement of objections, which recognised the impact of Lucite’s commercial strategy on the cartel. Thus, at paragraph 273 of the statement of objections, concerning a meeting held in September 2000, the Commission acknowledged that Degussa and Atofina had felt the effects of the business strategy (aggressive pricing policy) adopted by Lucite after 2000. Similarly, a number of points of the statement of objections refer to complaints from Degussa and Atofina, based on documents at the time, relating to the difficulties caused to them by the aggressive pricing policy pursued by Lucite on the PMMA sanitary ware and PMMA solid sheet market.

74 Third, the applicants rely on the statements made by the representatives of Atofina at the hearing, which confirmed the effect of Lucite’s commercial strategy on market prices. The applicants further state that, at that hearing, the Commission itself referred to the fact that Lucite was gaining market share with a pricing policy based on lower margins.

75 In the applicants’ submission, if the Commission had taken proper account of the factors on which they relied, it would have granted the applicants a reduction in the fine, since those factors demonstrate the significant effect that Lucite’s conduct had in undermining the cartel.


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76 The applicants emphasise that the Commission cannot validly dispute the accuracy of the facts set out above, as it would appear to do by using the word ‘allegedly’ in its statement in defence. They maintain that those facts are supported by unchallenged sworn evidence given by individuals with direct knowledge of the facts (in particular the statement of Mr L. at annex 2 to the response to the statement of objections), which was not questioned by the Commission during the administrative procedure. The applicants emphasise that the burden of proof in cartel cases is borne by the Commission and that the Commission has no discretion to ignore or reject relevant evidence without first considering its merits or weight.

77 The applicants observe that it follows from the case-law that the sufficiency of any reduction in the fine on grounds of attenuating circumstances must be determined on the basis of an overall assessment which takes all the relevant circumstances into account. They add that such an overall assessment was not possible in the present case, since the Commission completely ignored the factors set out in the second part of the application when adopting its decision. In those circumstances, the Commission’s arguments based on its discretion as to the weight to be attributed to individual attenuating circumstances are immaterial.

78 When asked at the hearing before the Court about which category of attenuating circumstances they intended to put forward from among those listed in point 3 of the Guidelines, the applicants stated that the most relevant category is that relating to the non-implementation in practice of offending agreements or practices, referred to in the second indent of point 3. They nevertheless emphasised the unusual nature of their line of argument, given that it was based on positive conduct aimed at undermining the cartel and went beyond mere non-implementation of the cartel.

79 In their written pleadings, the applicants also pointed out that the Guidelines provide for a category of ‘other’ attenuating circumstances. As for the Commission’s argument that that category is intended to cover very limited and specific situations such as where an undertaking is in very serious financial difficulties, the applicants maintain that it is unsubstantiated. The applicants argue that, in any event, those factors are quite exceptional and ought therefore to have been taken into account by the Commission.

80 Lastly, contrary to the Commission’s assertion, they contend that there is no inconsistency between, on the one hand, Lucite’s admission that its employees continued to participate in anti-competitive discussions between 2 November 1999 and 12 September 2002 and, on the other, the arguments relating to the fact that Lucite disrupted the cartel’s activities during a part of that period and the claim that the cartel was dormant between July 2001 and August 2002.

81 The Commission contests those arguments.


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82 The Commission contends that the applicants’ arguments have no relevance to the assessment of the attenuating circumstances. Consequently, the question of the accuracy of the facts alleged by the applicants is also irrelevant to the present case.

83 With particular regard to the applicants’ assertion that they undermined the activities of the cartel, the Commission submits that it follows from the case-law that even if it were true that the applicants did not comply, in whole or in part, with the agreements reached within the cartel, the Commission would not be required to take that into account as an attenuating circumstance for the purpose of calculating the fine.

84 The Commission states that, in any event, it is clear from the case-law that it is not required to recognise the existence of an attenuating circumstance consisting of non-implementation of a restrictive agreement unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the agreement, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the agreement in question. In the present case, the applicants have not made out proof of any of those factors.

85 The Commission also emphasises that, in accordance with the case-law, it is not required to address arguments which are devoid of substance and are therefore not relevant. The Commission contends that it correctly considered all possible attenuating circumstances in the present case and refers in that regard to recitals 383 and 393 to the contested decision, which examine the early termination of the infringement and Lucite’s cooperation outside the scope of the Leniency Notice.

86 Lastly, the Commission denies having infringed the principles of the protection of legitimate expectations and equal treatment. It maintains that it applied Section 3 (Attenuating circumstances) of the Guidelines in the same way to all participants in the cartel, while taking their respective arguments into account.


87 It should be borne in mind, as a preliminary point, that where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined (Commission v Anic Partecipazioni, paragraph 47 above, paragraph 150 and the case-law cited) in order to ascertain whether there might be aggravating or attenuating circumstances relevant to them (Carbone-Lorraine v Commission, paragraph 46 above, paragraph 190).

88 That conclusion follows logically from the principle that penalties must fit the offence, so that an undertaking may be penalised only for acts imputed to it individually, a principle applying in any administrative procedure that may lead to the imposition of sanctions under Community competition law (Case T-224/00


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Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II-2597, paragraph 261).

89 Sections 2 and 3 of the Guidelines provide for adjustment of the basic amount of the fine by reference to certain aggravating and attenuating circumstances, which are peculiar to each undertaking concerned. In particular, point 3 of the Guidelines sets out, under the title of attenuating circumstances, a non-exhaustive list of circumstances which might lead to a reduction in the basic amount of the fine. Thus, reference is made to the passive role of the undertaking, to the non-implementation in practice of the offending agreements or practices, to termination of the infringement as soon as the Commission intervenes, to the existence of reasonable doubt on the part of the undertaking as to whether the restrictive conduct does indeed constitute an infringement, to the fact that the infringement was committed as a result of negligence and to the effective cooperation by the undertaking in the proceedings outside of the scope of the Leniency Notice.

90 It is settled case-law that whenever the Commission adopts guidelines for the purposes of specifying, in accordance with the Treaty, the criteria which it proposes to apply in the exercise of its discretion, there arises a self-imposed limitation of that discretion inasmuch as the Commission must then follow those guidelines (see Carbone-Lorraine v Commission, paragraph 46 above, paragraph 192 and the case-law cited).

91 The self-limitation on the Commission’s discretion arising from the adoption of the Guidelines is not incompatible with the Commission’s maintaining a substantial margin of discretion. The Guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with the provisions of 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), as interpreted by the Court of Justice (see, to that effect, Case T-116/04 Wieland-Werke v Commission [2009] ECR II-1087, paragraph 31, and Case T-161/05 Hoechst v Commission [2009] ECR II-3555, paragraph 129).

92 Thus, in the absence of any binding indication in the Guidelines regarding the attenuating circumstances that may be taken into account, it must be concluded that the Commission has retained a degree of latitude in making an overall assessment of the extent to which a reduction of fines may be made in respect of attenuating circumstances.

93 However, as the applicants observe, that recognition of the Commission’s discretion does not mean that it is entitled simply to ignore circumstances which are relevant for the assessment of the relative gravity of the participation of the undertaking concerned in the infringement, in particular those referred to in the Guidelines (see, to that effect, Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 88 above, paragraphs 266 and 267,


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and Case T-26/02 Daiichi Pharmaceutical v Commission [2006] ECR II-713, paragraphs 104 to 106). On the other hand, it does mean that the grant of a reduction of the basic amount of the fine is not automatic because it is necessarily linked to the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful agreement (see, to that effect, Case C-511/06 P Archer Daniels Midland v Commission [2009] ECR I-5843, paragraphs 102 to 104).

94 The pleas raised by the applicants must be examined in the light of those considerations.

– The arguments alleging no involvement of senior management in the cartel and the fact that Lucite’s participation in the infringement was limited to participation by former ICI employees in the business unit

95 First of all, it should be borne in mind that the application of Article 23(2) of Regulation No 1/2003, which empowers the Commission to impose on undertakings or associations of undertakings fines where, intentionally or negligently, they have been guilty of infringements of the competition rules, does not require there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned; action by a person who is authorised to act on behalf of the undertaking suffices (see, to that effect, Joined Cases Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 97).

96 In the present case, the applicants accept that they are ‘responsible for the [anti-competitive acts in question] carried out in the name of Lucite [International] UK … by the former ICI employees … from 2 November 1999 until 12 September 2002’. They nevertheless consider that the lack of involvement in the cartel by shareholders, senior management and newly-recruited staff ought to have been taken into account in the determination of the amount of the fine.

97 The Court finds, however, that the applicants have failed to explain how those factors by themselves would be such as to attenuate the gravity of the infringement committed by Lucite, as determined in recitals 319 to 336 to the contested decision, which justified the basic amount of the fine. As the applicants’ line of argument is, in reality, based on the impact of those factors on Lucite’s conduct in the market, which in itself is an attenuating circumstance, reference is made to the analysis of the arguments relating to that conduct (see paragraph 107 et seq. below).

98 It should also be observed that, as is apparent from the response to the statement of objections, the argument relating to the lack of involvement by Lucite’s senior management in anti-competitive conduct concerns principally people who had already held management posts in ICI Acrylics before it was acquired by Lucite. In particular, the CEO of ICI Acrylics, Mr D., was retained in his post by Lucite


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throughout the infringement period. He was replaced in 2003 by Mr L., who had previously held the post of Director of Finance and Strategic Planning of ICI Acrylics and who was also retained in his post by Lucite. Consequently, it is not an argument specific to a ‘particular situation’ for Lucite nor to the alleged fact that it ‘inherited an undisclosed cartel’ agreed on by another undertaking.

99 Moreover, although the Commission did not allege that there had been involvement by the senior management of the acrylics business in the cartel, the fact remains that the people participating in the anti-competitive meetings had important responsibilities in Lucite, as evidenced by the response to the statement of objections.

100 In any event, it should be noted that the applicants’ line of argument is, in essence, based on the identity and functions of the people referred to in the contested decision as having been participants on behalf of Lucite in anti-competitive meetings. However, the fact that they were merely ‘individuals at the business level formerly employed by ICI’ is not a relevant attenuating circumstance for the purposes of determining the level of the fine.

101 The same holds true for the assertions regarding Lucite’s owners’ and management’s lack of knowledge of its anti-competitive activities, even if they were to be proven. Those assertions are, moreover, based solely on statements by interested parties and on the fact that the Commission made no statement to the contrary in the contested decision. It cannot, however, be maintained that, if it does not establish knowledge of the infringement on the part of the managers or owners of an undertaking, the Commission is required to grant a reduction in the fine imposed on that undertaking. Consequently, the fact that it did not attempt to cast doubt on Mr L.’s statement (see paragraph 76 above) is not relevant for fixing the level of the fine.

102 It follows that the Commission did not infringe the Guidelines by not accepting the applicants’ arguments as an attenuating circumstance. Not only are those arguments not included in the circumstances expressly referred to in Section 3 of the Guidelines, they do not, as is apparent from the foregoing, lead to the conclusion that Lucite’s situation came within the category of ‘other’ referred to in the seventh indent of Section 3 of the Guidelines.

103 It also follows that the fact that the Commission did not address those arguments explicitly in the contested decision is not an infringement of the obligation to state reasons. As those arguments were not relevant for assessing the attenuating circumstances, the Commission was not required to provide an answer to them, or even discuss them in its decision. It is clear from the case-law that Article 253 EC does not require the Commission to discuss all the issues of fact and of law raised by every party during the administrative proceedings (Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie and


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Others v Commission [1985] ECR 3831, paragraph 88, and Case T-3/89 Atochem v Commission [1991] ECR II-1177, paragraph 222).

104 Similarly, the Court rejects the complaints regarding infringement of the principles of the protection of legitimate expectations and of equal treatment, which are simply derived from the complaint regarding infringement of the Guidelines. In particular, the applicants do not explain how the Commission infringed the principle of equal treatment by not accepting the arguments in question as an attenuating circumstance.

105 Lastly, for the reasons set out in paragraphs 97 to 101 above, the arguments alleging a lack of involvement by senior management in the cartel and the fact that Lucite’s participation in the infringement was limited to participation by former ICI employees in the business unit cannot be taken into account for the purposes of reducing the fine in the Court’s exercise of its unlimited jurisdiction.

106 Those pleas must therefore be rejected.

– The line of argument alleging that the commercial strategy adopted by Lucite following the acquisition of ICI’s acrylics business was in direct contradiction with the anti-competitive discussions and was decisive in the undermining of the cartel

107 First of all, it should be borne in mind that, in the response to the statement of objections, the applicants maintained that, inasmuch as that factor is not taken into account in the determination of the starting amount of the fine, the impact of their commercial policy on the cartel should be taken into account as an attenuating circumstance in order to reduce the fine to be imposed on them. Although they did not indicate the category of attenuating circumstances on which they wished to rely from among those referred to in Section 3 of the Guidelines, they nevertheless very clearly elaborated on the line of argument relating to their commercial policy, which features quite prominently in their pleadings.

108 As explained in paragraphs 45 to 56 above, that line of argument was not relevant for the purposes of determining the starting amount of the fine. This conclusion does not, however, apply to the assessment of attenuating circumstances.

109 It should be borne in mind that, according to the case-law, for the purposes of recognising attenuating circumstances in relation to the ‘non-implementation in practice of the offending agreements or practices’, referred to in the second indent of Section 3 of the Guidelines, it is necessary to ascertain whether the circumstances relied on by the undertaking concerned show that, during the period in which the applicant was party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at least, that it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation (Daiichi Pharmaceutical v Commission, paragraph 93 above, paragraph 113; Carbone-


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Lorraine v Commission, paragraph 46 above, paragraph 196; and Oxley Threads v Commission, paragraph 61 above, paragraph 111).

110 It is therefore clear that the applicants’ line of argument, namely that their commercial policy was in direct contradiction with the coordination of prices as between competitors and was decisive in the undermining of the cartel, does, in essence, come within the situations referred to in that case-law.

111 Next, it must be observed that it is clear from the contested decision that, for the purposes of calculating the amount of the fines, the Commission applied the method set out in the Guidelines and examined the relative gravity of the participation in the infringement by each of the undertakings concerned.

112 In that regard, recital 317 to the contested decision is explicit, since it states that ‘the role played by each undertaking participating in the infringement [was] assessed on an individual basis’ and that ‘the Commission [had to] in particular take account, in determining the amount of the fines, of any aggravating or [attenuating] circumstances for each undertaking’. In its finding on aggravating and attenuating circumstances, in recital 397 to the contested decision, the Commission, ‘[a]s a result of the aggravating and [attenuating] circumstances taken into account’, calculated increases and a reduction of the basic amount of the fine in respect of the other undertakings involved in the infringement. As Lucite is not referred to therein, the implication is that, on the basis of the results of its investigation and the applicants’ response to the statement of objections, the Commission found that the applicants could not rely on any of the attenuating circumstances referred to in Section 3 of the Guidelines, including, in particular, ‘non-implementation in practice of the offending agreements or practices’.

113 However, as observed by the applicants, the part of the contested decision dealing with the assessment of attenuating circumstances (recitals 372 to 396) does not make specific reference to Lucite’s line of argument. This is true in particular of the Commission’s assessment of the category ‘non-implementation in practice of the offending agreements or practices’ (recitals 375 to 381 to the contested decision) and ‘other factors’ (recital 394 to the contested decision), which however makes explicit reference to the various arguments put forward by the other undertakings concerned (Atofina, ICI and Barlo).

114 Admittedly, the assessment of the arguments put forward by Atofina, Barlo and ICI is sometimes sufficiently general to enable it to be construed as also referring to Lucite’s arguments.

115 Thus, in recital 378 to the contested decision, the Commission states:

‘… the fact that an undertaking which participated in an infringement or elements thereof with its competitors did not always behave on the market in the manner agreed between them is not necessarily a matter which must be taken into account as [an attenuating] circumstance when determining the amount of the fine to be


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imposed. An undertaking which, despite colluding with its competitors, follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit. The mere fact of cheating at the expense of the other cartel members cannot therefore be admitted as [an attenuating] circumstance.’

116 At recital 379 to the contested decision, the Commission states that ‘[e]ach undertaking would have to demonstrate that it systematically and explicitly refrained from applying the restrictive agreements. ... In this case, none of the undertakings explicitly announced that they would refrain, or provided any conclusive evidence that they refrained, from applying the agreements and thus adopted really competitive behaviour’. Similarly, in recital 380 to the contested decision, in response to an argument put forward by Atofina, the Commission states that none of the elements it took into account in certain previous decisions to grant a reduction in a fine apply to Atofina in the present case or to ‘any other participating undertakings’.

117 However, no specific response is given to the argument relating to the alleged role of Lucite in the undermining of the cartel, which is after all its central argument. In particular, it cannot be inferred with certainty from the contested decision whether, as the applicants allege, the Commission refused to give any weight to that argument (see paragraphs 82 and 83 above and recital 378 to the contested decision, reproduced in paragraph 115 above) or whether and why it took the view that the applicants had not adduced conclusive evidence in support of their arguments (see paragraph 84 above and recital 379 to the contested decision, referred to in paragraph 116 above).

118 It is accordingly clear that the wording of the contested decision does not enable it to be understood, with certainty, why the applicants’ line of argument was not accepted as providing proof of attenuating circumstances. Consequently, the applicants are correct in criticising the Commission’s failure to provide explanations on the point. However, regrettable as that omission may be, given, inter alia, the importance of the applicants’ line of argument in the scheme of the response to the statement of objections, it does not by itself establish that the Commission failed to assess all relevant attenuating circumstances or that its assessment was incorrect, as the applicants allege (see paragraph 66 above). Moreover, as is clear from paragraphs 111 and 112 above, the wording of the contested decision nevertheless does afford an understanding of the Commission’s overall assessment of the gravity of their participation in the infringement. Consequently, the aforementioned omission is not in itself a basis for annulling Article 2(d) of the contested decision or for granting the reduction in the fine as sought.

119 It remains to be ascertained whether the Commission was correct in finding that the applicants could not avail themselves of an attenuating circumstance, as stated in recital 397 to the contested decision (see paragraph 112 above).


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120 It must also be remembered that under Article 31 of Regulation No 1/2003 the General Court has unlimited jurisdiction within the meaning of Article 261 TFEU, which authorises it to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine (Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 692, and Case C-534/07 P Prym and Prym Consumer v Commission [2009] ECR I-7415, paragraph 86). Nor, in principle, does the discretion enjoyed by the Commission and the limits which it has imposed in that regard prejudge the exercise by the European Union judicature of that jurisdiction (Wieland-Werke v Commission, paragraph 91 above, paragraph 33, and Case T-122/04 Outokumpu and Luvata v Commission [2009] ECR II-1135, paragraph 36).

121 It should be borne in mind that, in support of its request to have the fine reduced, the applicants rely in the main on certain statements by Atofina and on the wording of a number of points in the statement of objections.

122 Thus, first, the testimony of Mr C. of Atofina, lodged as part of its request to avail itself of the Leniency Notice, states as follows:

‘All went well until the beginning of the year 2000: Lucite then attacks the sanitary ware market (acquires lots of volume and breaks the market). [Lucite] transferred its “extruded” sheet activity to Barlo and sells only cast sheet. It thus lost solid sheet customers and therefore had to sell more sanitary ware in order to maintain its volumes. That was when the agreement for all sheets imploded. Ato lost market shares to [Lucite].’

123 Mr C. further stated in regard to a meeting held in September 2000 that, at the time, Atofina and Degussa had suffered from Lucite’s aggressive pricing policy and from the ensuing loss of customers. Atofina informed Lucite that it would react and lower its own prices in order to regain market shares. According to Mr C., this was done in 2001 and Atofina was able to win back certain customers. That meeting was described at paragraph 273 of the statement of objections and Lucite affirmed, in its response, that it did not remember it. It was not reproduced in the contested decision.

124 The applicants also rely on Atofina’s statement at the hearing, which was to the same effect:

‘The graph you see on the screen shows the change in market share for the different producers of sanitary-grade PMMA. It shows a noticeable variation in the different producers’ market positions during the period under consideration, indicating the competitive nature of the market. In particular, the chart indicates fierce competition between Arkema and Lucite … We can also see that from


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2000, Lucite increased its lead over Arkema, because its market share grew strongly.’

125 In addition, as regards a number of paragraphs of the statement of objections (paragraphs 251, 274, 275 and 277) on which the applicants rely, the content thereof was reproduced, in essence, in recitals 173, 191, 192 and 194 to the contested decision.

126 Recital 191 to the contested decision (paragraph 274 of the statement of objections) concerns the meeting of 19 March 2001 attended by the representative of Lucite, Mr R., and the representative of Degussa concerning PMMA sanitary ware. The representative of Degussa ‘warned Mr [R.] against the aggressive pricing policy pursued by Lucite’ and indicated to him that Degussa was going to having to eliminate posts, that it held sizeable product inventory and that its customers were destocking inventory. The representative of Degussa proposed to Lucite a certain number of solutions that would enable it to atone for its behaviour. Mr R. did not agree to implement those proposals.

127 Recital 192 to the contested decision (paragraph 275 of the statement of objections) concerns a meeting of 8 May 2001 between Lucite and Atofina concerning PMMA sanitary ware. During that meeting, the representative of Atofina was critical of Lucite’s strategy for a simplified sanitary product, produced at low cost by Lucite, and of the customers which Lucite had taken from Atofina because of its prices.

128 Recital 173 to the contested decision (paragraph 251 of the statement of objections) contains a description of a meeting on 21 June 2001, during which the discussions concerned both PMMA solid sheet and PMMA sanitary ware. It states that the handwritten notes taken by the Lucite representative, Mr R., indicate that the representatives of Degussa and Atofina had contacted him ‘to persuade him that Lucite should take no more volume on the market, which had resulted from its pricing policy with lower margins’. They also cited, in relation to extruded sheet, an example of low prices for a given customer in order to illustrate the aggressive pricing policy pursued by Lucite. The handwritten note also mentions ‘Ineos [now Lucite] on outside’, which means, according to Mr R., that the representatives of Degussa and Atofina thought that Lucite was outside ‘the club’ because of its aggressive pricing policy. There is also a reference to ‘control distributors’, which is understood by Mr R. to mean incitement to Lucite to stop its distributors offering low prices. That note also contained indications of the volume that Atofina and Degussa both recognised that they had lost during the preceding four months and a reference to the fact that Atofina had shut down its plants in May and planned to shut them down in July and in August. The end of that paragraph indicates that Mr R. did not agree to any specific action but sought to placate the concerns of the representatives of Degussa and Atofina by stating that it was not Lucite’s intention to be perceived as aggressive on the market.


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129 Recital 194 to the contested decision (paragraph 277 of the statement of objections) concerns a meeting on 19 July 2001 attended by Mr R. (Lucite) and a representative of Degussa. It is stated there that pressure was put on Lucite to terminate its aggressive pricing policy on the market, which was harming an independent cast sheet manufacturer, which was closely linked to Degussa.

130 It is apparent from those recitals that, at the meetings on 19 March, 8 May, 21 June and 19 July 2001, the competitors of Lucite – Degussa and Atofina – complained of an aggressive pricing policy practised by Lucite. Those complaints are specific in that those undertakings state the volumes they allegedly lost due to Lucite’s pricing policy, provide examples and propose specific measures they wish to see implemented by Lucite in order to correct its conduct (see, in particular, recitals 173 and 191 to the contested decision).

131 In addition, the wording of those recitals give some idea of the magnitude of the ‘damage’ caused to competitors by Lucite’s pricing policy. Thus, according to recital 173 to the contested decision, the handwritten reference ‘1000 each over the last four months’ is an indication of the volume that Atofina and Degussa both lost during the four months preceding the meeting of 21 June 2001. That recital also indicates that Atofina had had to close its plants in May and was planning closures for July/August. Moreover, recital 191 to the contested decision refers to solutions proposed to Lucite to enable it to ‘atone’ and, in particular, a proposal by Degussa for ‘a purchase for resale contract of 400 tonnes from ParaChimie as another way for Lucite to “atone” for increasing its market share’.

132 Thus, the content of those recitals corroborates Atofina’s statements regarding Lucite’s conduct on the market. However, any weight to be accorded to that conduct for the purposes of granting a reduction in the basic amount of the fine must be assessed in the light of the overall circumstances of the case, including Lucite’s overall participation in the cartel (see paragraph 93 above).

133 In that regard, it is observed that, according to the contested decision, Lucite participated from 2 November 1999 to 12 September 2002 in a single, continuous infringement covering the entire territory of the EEA and concerning three PMMA products: moulding compounds, solid sheet and sanitary ware. The infringement consisted in discussing prices and agreeing, implementing and monitoring price agreements either in the form of price increases, or at least stabilisation of existing price levels; discussing the passing on of additional service costs to customers; exchange of commercially important and confidential market and/or company relevant information and participating in regular meetings and other contacts to facilitate the infringement (Article 1 of and recitals 1 to 3 to the contested decision). The applicants do not deny the scope of their liability in the cartel.

134 In the first place, it should be observed that the applicants’ arguments concern solely the part of the infringement concerning the implementation of the pricing


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agreements. In particular, they do not even allege that they did not implement the part of the infringement relating to the exchange of commercially important confidential market information and and/or company relevant information.

135 Moreover, the contested decision provides numerous examples of such exchanges involving Lucite, until 12 September 2002 (see, for example, recitals 127, 128, 132, 167, 172, 188 and 196). Footnote No 37, relating to recital 106 to the contested decision, even states that ‘Lucite … recalls that meetings [between Atofina, Degussa and Lucite] continued into early 2003’.

136 Moreover, even the wording of the recitals relied on by the applicants shows that its conduct was ambiguous. Thus, the end of recital 191 to the contested decision indicates that, at the meeting of 19 March 2001, Lucite’s representative, Mr R., provided volume and price information to Degussa’s representative and noted the details given in respect of customers as he considered it to be useful information. Recital 173 to the contested decision, relating to the meeting of 21 June 2001, indicates that Lucite did not want to be perceived as an aggressive player on the market. According to recital 194 to the contested decision, relating to the meeting of 19 July 2001 concerning sanitary ware, ‘Lucite’s volume needs were disclosed, and the purchase prices were negotiated’.

137 It is therefore clear that, even at the time when Lucite was being criticised for having breached the pricing agreement, it was nevertheless participating in discussions on prices and was indeed implementing that part of the agreement concerning the exchange of commercially important information.

138 In the second place, it is apparent from the case-file that Lucite did not refrain completely from implementing the part of the agreement relating to price fixing.

139 As pointed out by the Commission in its statement in defence, without being contradicted on the point by the applicants, the contested decision provides examples of price increases actually implemented by Lucite during the second half of 2000. Thus, recitals 168 and 189 to the contested decision refer to announcements of price increases for solid sheet and sanitary ware at the meeting of 21 August 2000. Footnote No 151 further refers to a letter of 23 October 2000 from Lucite informing a customer of a 6% price increase as from 1 January 2001 (sanitary ware). Recital 169 to the contested decision refers to announcements of price increases made by Lucite during week 38 of 2000 (solid sheet).

140 It should also be borne in mind in that context that the first meeting referred to in the contested decision, which notes the competitors’ criticisms of Lucite’s pricing policy, took place on 19 March 2001 (recital 191 to the contested decision). Yet Lucite’s representatives also attended a number of meetings held between 7 December 1999 and 9 February 2001 in respect of all the products concerned (see, in chronological order, recitals 188, 127, 128, 167, 129, 133, 168, 189, 130, 132 and 172 to the contested decision). Similarly, subsequent to the last of the


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meetings referred to by the applicants (meeting of 19 July 2001, referred to in recital 194), the contested decision refers to the meetings of 12 August 2002 (recital 195, concerning sanitary ware) and 12 September 2002 (recitals 134 and 196, concerning moulding compounds and sanitary ware), which refer to the price increases decided on by Lucite.

141 In the third place, the evidence adduced by the applicants does not establish that the alleged commercial policy was applied in respect of all the products concerned. The specific evidence put forward by the applicants relates only to PMMA sanitary ware.

142 When questioned on this point by the Court, the applicants affirmed that their commercial strategy had been applied specifically to PMMA moulding compounds and to PMMA sanitary ware, the production of which remained under Lucite’s control. As regards PMMA solid sheet, the relevant production capacity was sold to Barlo with effect from 6 December 1999. Consequently, although the applicants continued to offer that product whilst obtaining supplies from Barlo, they were not able to apply their production strategy to that product.

143 It should be observed, however, that Atofina refers only to the sanitary ware market. Similarly, the meetings during which criticisms were expressed about Lucite’s pricing policy (see paragraph 130 above) all concerned PMMA sanitary ware, with the sole exception of the meeting referred to in recital 173 to the contested decision, which also concerned PMMA solid sheet.

144 The same conclusion must be reached in the light of the documents provided by the applicants in response to the written questions from the Court.

145 Thus, in Degussa’s response to the statement of objections, it is, admittedly, affirmed that ‘Lucite as the market leader and Atofina as the second largest manufacturer were conducting a serious price war in 2001’ and that, ‘[d]uring the first few months of 2001, in fact, Degussa lost considerable quantities of supply business in Europe to its two competitors Lucite and Atofina’. However, those statements relate only to PMMA sanitary ware. Degussa, moreover, expressly states that ‘[t]he aggressive pricing policy alleged by Lucite and the alleged gains won by Ineos would be more applicable to the sheets for sanitation product applications than to the solid sheets’.

146 Furthermore, in their response to the Commission’s request for information of 28 August 2003, the applicants provided graphs aimed at showing the relationship between the costs of obtaining methyl methacrylate (raw material for PMMA) and the ‘average price achieved by Lucite on the market’ in Europe for the PMMA products concerned. The only graph concerning PMMA sanitary ware shows a clear trend towards price decreases during the relevant period, both in absolute terms and in relation to the costs of obtaining methyl methacrylate. It is therefore clear that even the graphs drawn up by the applicants themselves using their own


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price data do not provide definite proof of their statements regarding their commercial policy in respect of other PMMA products.

147 Nor are any of the other factors relied on by the applicants decisive.

148 First, in support of their statements about the success of their commercial strategy, the applicants referred to tables showing volumes and market shares for the three products concerned, contained in the response to the statement of objections. However, since those tables compare the years 1998, 2000 and 2002, they do not allow an assessment of the impact of the commercial policy adopted following the acquisition of ICI Acrylics on 2 November 1999.

149 In response to a written question from the Court, the applicants produced more detailed tables which had been provided to the Commission on 8 March 2006, thus subsequent to the lodging of the response to the statement of objections. Those tables contain their ‘best estimates’ of the annual trends in market shares of the undertakings concerned between 1998 and 2002, in respect of the three products concerned.

150 However, those estimates could at best support the applicants’ assertions in respect of PMMA sanitary ware. As regards that product, a constant increase in sales volumes and Lucite’s market share during the period from 1999 to 2002 can be seen. By contrast, as regards PMMA solid sheet, both sales volumes and market share declined during that period.

151 Regarding PMMA moulding compounds, it is true that sales volume increased substantially between 1999 and 2000. However, that increase was due mostly to the acquisition of a production facility from Barlo, as the applicants themselves acknowledge. It is, moreover, apparent from the case-file that it was not accompanied by lower prices. The graph produced by Lucite in response to the Commission’s request for information of 28 August 2003 shows an increase in the prices invoiced by Lucite for that product as from the fourth quarter of 1999, which held throughout 2000. Moreover, no clear trend may be detected for the rest of the period considered (2000 to 2002).

152 It should also be observed that those estimates indicate that the other undertakings concerned also experienced similar trends in their sales volumes and market shares. By way of example, from 2000 to 2002, Degussa’s market share increase in PMMA sanitary ware was comparable to Lucite’s.

153 Second, in the request for immunity or reduction in the amount of the fine and in the response to the statement of objections, the applicants provided a description of Lucite’s commercial strategy. That description is not in itself probative, however.

154 Nor is it sufficiently supported by an extract of a presentation made in October 1999, which refers to the strategy proposed for Ineos Acrylics. Apart from the fact


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that it is merely an undated, unsigned copy, it can, at the most, give an indication of Lucite’s intentions before the actual acquisition of ICI Acrylics, which has no bearing on the actual conduct subsequently adopted on the market. The same is true of the statements to the effect that, in 2000, the applicants increased the production capacity of two of their plants considerably. Even if true, they would not be decisive if it is not established that that factor translated into a given form of conduct on the market.

155 Third, the applicants rely on the testimony of Mr L., dated 2 November 2005, annexed to the response to the statement of objections. That testimony, however, does not contain much information to support the applicants’ assertions about their conduct on the market. In any event, Mr L. is the Chief Executive of Lucite International. Consequently, that testimony can be accepted only if corroborated by objective documentary evidence in the file (see, to that effect, Carbone-Lorraine v Commission, paragraph 46 above, paragraph 205).

156 Moreover, Mr L., who, it must be remembered, is a former employee of ICI (see paragraph 98 above), states that the principles of the new commercial strategy ‘were in line with previous thinking but driven faster, more clearly and backed with capital investment’. That statement is far from indicating a radical change in the commercial strategy of ICI Acrylics after its acquisition by Lucite, contrary to what the applicants submit.

157 Fourth, the applicants also rely on an intervention by Lucite and the statements of a Commission official at the hearing. However, those interventions merely refer to the information set out above.

158 In the light of all the foregoing, the conclusion is that the applicants’ statements to the effect that their commercial strategy was ‘successfully implemented’ and led to ‘the [Lucite] business succeed[ing] in growing its sales and market share’ (see paragraphs 69 and 70 above) and an ‘aggressive pricing policy’ in reality relates only to PMMA sanitary ware.

159 That finding also puts into perspective the applicants’ statements as to the role played by that strategy in the undermining of the cartel.

160 It is clear from the case-file that, of the three products concerned, PMMA sanitary ware is by far the smallest market. According to the information provided by the applicants in the response to the statement of objections, PMMA sanitary ware accounted for roughly 11% of the total sales volume for the three PMMA products (see recital 6 to the contested decision). That proportion remains comparable when the value of those products is taken into account, as is shown by the estimates produced by the applicants in response to the Commission’s request for information of 17 February 2006.

161 Since it was the smallest market, any gain in volume by Lucite would be all the more evident to its competitors, which could explain the criticisms made by them


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on a number of occasions. However, the impact of such a commercial policy on PMMA products as a whole must have been fairly limited. By way of example, Degussa’s and Atofina’s losses in volume referred to in recital 173 to the contested decision are not significant when compared to the total volume of the three PMMA products.

162 The evidence in the case-file also reveals that, whilst Lucite was the market leader in PMMA sanitary ware, as regards the two other products its position was at least comparable in terms of volume and sales figures generated.

163 Moreover, certain parts of the contested decision also cast doubt on the validity of Lucite’s arguments regarding its own role in the undermining of the cartel.

164 It is apparent from the contested decision that Degussa complained on a number of occasions about Atofina’s non-compliance with the price increases for PMMA moulding compounds agreed on by the manufacturers (see recitals 123, 128, 129 and 133). Thus, the contested decision refers to a ‘big dispute’ (recital 133) and a ‘serious breach of trust’ (recital 129) between Degussa and Atofina. In addition, recital 129 to the contested decision, in reference to the meeting of 27 June 2000, states how ‘Degussa considered further contacts between the competitors to be without sense’.

165 Similarly, regarding PMMA solid sheet, according to the description of the meeting of 19 September 2000 given in recital 170 to the contested decision, that meeting was aimed at ‘re-establishing the confidence between the participants to be able to increase prices’. As Lucite was not present at that meeting, it may be inferred that it was about ‘re-establishing the confidence’ between Degussa and Atofina.

166 It thus appears from the file that, during certain periods, the cartel as a whole was not fully effective, as the participants, including the applicants, departed from the agreements concluded (see paragraph 152 above), thereby exposing themselves to criticisms from their competitors. That is, moreover, recognised explicitly in the contested decision (see, for example, recital 329). It has, however, not been established that Lucite’s conduct on the market was much different from that of its competitors, and, in particular, that such conduct was decisive in the undermining of the cartel, as the applicants allege.

167 However, as that is a characteristic specific to the functioning of the cartel as such, it cannot be taken into account as constituting attenuating circumstances, but at the very most be weighed up in the analysis of the gravity of the infringement as such, a point, moreover, not disputed by the applicants. It should be noted in that regard that, in determining the starting amount of the fine, the Commission examined arguments to the effect that the cartel was largely ineffective (recitals 321 to 329 to the contested decision), including an argument based on Lucite’s aggressive pricing policy (see recital 325 to the contested decision). Despite those


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arguments, the Commission found that the infringement could be classified as very serious. It did state explicitly, however, that it was not relying on ‘a particular impact [of the infringement on the market]’ (recital 321 to the contested decision) in determining the amount of the fine.

168 As to the statement that the cartel was completely dormant between 19 July 2001 and 12 August 2002, since neither the statement of objections nor the contested decision referred to anti-competitive activity during that period, it should be observed that the applicants have not disputed the duration of the infringement or its continuous nature.

169 Moreover, even if there were no anti-competitive meetings during that period, then that would be a factor relating to the cartel as such and not to Lucite’s individual conduct, which could not therefore be taken into account in the assessment of attenuating circumstances. If the applicants meant to affirm that there were no anti-competitive meetings between 19 July 2001 au 12 August 2002 because of their commercial strategy, the foregoing shows that such a causal link has not been established.

170 Thus, in the light of all the evidence examined above, it must be held that the applicants have not established that, despite their participation in the cartel during the period considered, their conduct on the market was competitive in nature and fulfilled the conditions laid down in the case-law referred to in paragraph 109 above, thereby entitling them to a reduction in the basic amount of the fine.

171 It should be noted in that regard that the period during which the cartel was not implemented (see, to that effect, Carbone-Lorraine v Commission, paragraph 46 above, paragraph 204), the presence (or not) of objective documentary evidence in the case-file in support of the assertions of the undertaking concerned (see, to that effect, Carbone-Lorraine v Commission, paragraph 46 above, paragraph 205), the ambiguous nature of an undertaking’s conduct (Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II-5169, paragraph 494) and, more generally, the degree to which the conduct of the undertaking concerned affects the application of the agreements, both in terms of substance and duration (see, to that effect, Cheil Jedang v Commission, paragraph 46 above, paragraph 199; Groupe Danone v Commission, paragraph 53 above, paragraph 389; and Daiichi Pharmaceutical v Commission, paragraph 93 above, paragraph 124), are all factors which can be taken into account by the Court in assessing the appropriateness of granting a reduction in the fine on grounds of attenuating circumstances.

172 Consequently, it is not necessary to rule on the question whether, on the one hand, as the Commission argues, the applicants’ conduct could be described as an attempt to use the cartel to their advantage, thereby making a reduction in the fine inappropriate or whether, on the contrary, as the applicants maintain, it was a case of particular circumstances, owing inter alia to the fact that they had ‘inherited’ an


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‘undisclosed’ cartel, going even beyond a ‘mere’ non-implementation of the agreements.

173 Likewise, in the light of the foregoing, neither can the applicants’ line of argument be accepted under the category ‘other’.

174 It follows from all the foregoing considerations, first, that the applicants have not established that the Commission erred in its assessment of attenuating circumstances and, second, that it is not necessary to amend the fine imposed on them in the Court’s exercise of its unlimited jurisdiction.

175 It follows that the single plea in law must be rejected in its entirety, along with the request for a reduction in the fine.

2. The request for withdrawal of the immunity granted to Lucite as from 1 March 2001


176 At the hearing, the Commission asked the Court, in the exercise of its unlimited jurisdiction, to withdraw the immunity granted to Lucite as from 1 March 2001. That request was based on new evidence, namely the allegations put forward by the applicants in their pleadings to the effect that the cartel remained dormant between 19 July 2001 and 12 August 2002. Those assertions are incompatible with the basis of that partial immunity. In the Commission’s submission, the applicants’ conduct, which reflects a strategy of seeking to reconcile contradictory aims, cannot be considered to demonstrate a genuine spirit of cooperation on its part.

177 The applicants submit that the Commission’s request must be rejected.

178 They state that they simply drew the Court’s attention to the fact that the contested decision does not mention any anti-competitive meeting taking place between 19 July 2001 to 12 August 2002. In their submission, that argument should not be interpreted as a withdrawal of their cooperation with the Commission.

179 The applicants further submit that the request is inadmissible at this stage. They point out, in particular, that this argument was already put forward in the application.


180 First of all, it is apparent from the contested decision that, in its request under the Leniency Notice, Lucite provided the Commission with evidence which enabled it to establish that the cartel had continued beyond 28 February 2001 and in fact until 12 September 2002 (a point subsequently confirmed by Degussa and Atofina) (see recital 412 to the contested decision). Consequently, in accordance


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with point 23 of the Leniency Notice, the Commission granted it immunity for the period from 1 March 2001 to 12 September 2002 (see recital 422(c) to the contested decision). As a result of that immunity, the starting amount of Lucite’s fine was increased by 10% on grounds of the duration of the infringement (corresponding to one year of participation in the infringement), instead of 25% (two years and nine months) (see recitals 351 to 354 to and footnote No 236 of the contested decision).

181 Next, it should be observed that, at the hearing, the applicants merely reiterated the argument set out in the application, by which they affirmed that ‘the cartel was completely dormant for over a year between 19 July 2001 and 12 August 2002’, since ‘[n]either the-statement of objections nor the [contested] decision alleged any anti-competitive activity during this period’, whilst acknowledging, in the same paragraph, that they were responsible for the anti-competitive conduct engaged in on their behalf between 2 November 1999 and 12 September 2002.

182 It is therefore clear that the applicants have not in any way cast doubt on the evidence which was the basis for the grant of partial immunity. In particular, they have not contested the duration or continuous nature of the infringement, or their own responsibility for the entire period considered.

183 As they stated at the hearing (see paragraph 178 above), their argument must necessarily be understood as meaning that they simply drew the Court’s attention to the – objective – fact that the contested decision did not refer to any anti-competitive meeting taking place during a certain period. The reliance by the applicants on such an argument is not a ground for withdrawing the immunity granted to them.

184 Consequently, the Commission’s request must be rejected and it is not necessary to consider whether it is admissible.

Costs

185 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. Under Article 87(3) of the Rules of Procedure, the Court may rule that costs are to be shared or that each party is to bear its own costs where each party succeeds on some and fails on other heads, or where circumstances are exceptional.

186 In the present case, the applicants have been unsuccessful in their claims, whilst the Commission has been unsuccessful in its request to have the immunity granted to the applicants withdrawn. It should also be borne in mind, for the purposes of allocating costs, that the applicants’ arguments in respect of the statement of reasons contained in the contested decision (see paragraph 118 above) were well founded, even though they have no bearing on the level of the fine set by the


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Commission. In those circumstances, the applicants should bear 90% of their own costs and pay 90% of the costs incurred by the Commission, and the Commission should bear 10% of its own costs and pay 10% of the costs incurred by the applicants.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1. Dismisses the action;

2. Dismisses the Commission’s request for withdrawal of immunity;

3. Orders Lucite International Ltd and Lucite International UK Ltd to bear 90% of their own costs and to pay 90% of the costs incurred by the Commission;

4. Orders the Commission to bear 10% of its own costs and to pay 10% of the costs incurred by Lucite International and Lucite International UK.

Forwood Labucka O’Higgins

Delivered in open court in Luxembourg on 15 September 2011.

[Signatures]


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Table of contents

Background to the dispute ......................................................................................................... II – 2

Procedure and forms of order sought......................................................................................... II – 4

Law............................................................................................................................................ II – 5 1. The request to annul Article 2(d) of the contested decision and to reduce, in the exercise of the Court’s unlimited jurisdiction, the amount of the fine imposed under that provision .............................................................................................................. II – 5

The first part of the single plea in law, relating to determination of the starting amount of the fine ............................................................................................................ II – 6

Arguments of the parties ............................................................................................. II – 6 Findings of the Court................................................................................................... II – 7

The second part of the single plea in law, concerning the assessment of attenuating circumstances .............................................................................................. II – 12

Arguments of the parties ........................................................................................... II – 12 Findings of the Court................................................................................................. II – 15

– The arguments alleging no involvement of senior management in the cartel and the fact that Lucite’s participation in the infringement was limited to participation by former ICI employees in the business unit ................. II – 17 – The line of argument alleging that the commercial strategy adopted by Lucite following the acquisition of ICI’s acrylics business was in direct contradiction with the anti-competitive discussions and was decisive in the undermining of the cartel ................................................................................ II – 19

2. The request for withdrawal of the immunity granted to Lucite as from 1 March 2001 .................................................................................................................................... II – 31

Arguments of the parties ................................................................................................ II – 31 Findings of the Court ..................................................................................................... II – 31

Costs ........................................................................................................................................ II – 32

Documents

JUDGMENT OF THE GENERAL COURT (Fourth Chamber) · JUDGMENT OF THE GENERAL COURT (Fourth Chamber) 15 September 2011 * (Competition – Agreements, decisions and concerted practices