GC, 4th chamber, November 16, 2011, No T-59/06

THE GENERAL COURT (Fourth Chamber),

Facts

1. The first applicant, Low & Bonar plc, is the parent company of an international group which specialises in converting polymers and other materials into advanced products.

2. The second applicant, Bonar Technical Fabrics NV, is an indirect subsidiary of the first applicant. It specialises in the production of technical and industrial textiles. In May 2002, the second applicant merged with its immediate parent company, Bonar Phormium NV. The latter then ceased to exist.

3. Bonar Phormium was a company with two divisions, one of which, Bonar Phormium Packaging ('BPP'), manufactured and sold plastic industrial bags. On 28 November 1997, BPP's entire business and assets were sold to Combipac BV, a subsidiary of British Polythene Industries plc ('BPI').

4. In November 2001, BPI informed the Commission of the European Communities of the existence of a cartel in the industrial bags sector. It expressed the wish to cooperate under the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4).

5. On 26 and 27 June 2002, the Commission carried out investigations at thirteen undertakings pursuant to Article 14(2) and (3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition, 1959-62, p. 87). The applicants were not included in those inspections.

6. On 4 August 2003, the Commission sent a request for information to Bonar Phormium.

7. On 29 April 2004, the Commission initiated the administrative procedure and sent the applicants a Statement of Objections, to which they replied separately on 5 July 2004. The Commission held hearings from 26 to 28 July 2004.

8. On 30 November 2005, the Commission adopted Decision C(2005) 4634 final relating to a proceeding pursuant to Article 81 EC (Case COMP/F/38.354 - Industrial bags) (the 'contested decision'), a summary of which was published in the Official Journal of the European Union of 26 October 2007 (L 282, p. 41), on the basis 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).

9. Article 1(1)(n) of the contested decision states that, from 13 September 1991 to 28 November 1997, the applicants infringed Article 81 EC by participating in a complex of agreements and concerted practices in the plastic industrial bags sector in Belgium, Germany, Spain, France, Luxembourg and the Netherlands, consisting in the fixing of prices and the establishment of common price calculation models, the sharing of markets and the allocation of sales quotas, the assignment of customers, deals and orders, concerted bidding in response to certain invitations to tender and the exchange of individualised information.

10. Point (l) of the first paragraph of Article 2 of the contested decision imposes, jointly and severally, a fine of EUR 12.24 million on the applicants.

Procedure and forms of order sought

11. By application lodged at the Court Registry on 23 February 2006, the applicants brought the present action.

12. By letter of 19 April 2011, the applicants informed the Court that they were withdrawing the first plea in law from their application.

13. The applicants claim that the Court should:

- annul the contested decision in its entirety, insofar as it relates to the first applicant;

- in the alternative, annul in part Article 1(1) of the contested decision insofar as it relates to the first applicant and annul in part or, alternatively, reduce as appropriate the fine imposed on the first applicant by Article 2 of that decision;

- in the further alternative, reduce substantially the amount of the fine imposed by Article 2 of the contested decision upon the first applicant;

- annul in part Article 1(1) of the contested decision insofar as it relates to the second applicant and annul in part or, alternatively, reduce as appropriate the fine imposed on the second applicant by Article 2 of that decision;

- in the further alternative, reduce substantially the amount of the fine imposed by Article 2 of the contested decision upon the second applicant;

- order the Commission to pay the costs, including default interest incurred by the applicants or either of them with respect to all or part of the fine; and

- take any other measures that the Court considers to be appropriate.

14. The Commission contends that the Court should:

- dismiss the action;

- order the applicants to pay the costs.

Pleas and arguments of the parties

15. At the stage of the application, the applicants put forward four pleas in law before withdrawing the first plea concerning errors of law and assessment which they alleged the Commission had made in finding the first applicant responsible for the infringement committed by BPP.

16. In the framework of the second plea, the applicants submit, primarily, that the Commission made errors of law, reasoning and assessment in concluding that the unlawful conduct amounted to a single and continuous infringement of Article 81 EC in the European Union, and, in the alternative, that the Commission could hold BPP liable only for its participation in cartels covering Belgium and the Netherlands and, from 21 to 28 November 1997, for its participation in a single meeting within the European Association of Plastic Valve Bag Manufacturers ('Valveplast').

17. In the framework of the third plea, the applicants submit that the claim that BPP was aware of, and therefore liable for, a single and continuous infringement at European level is vitiated by errors of law and assessment as well as by infringements of the principles of equal treatment and non-discrimination.

18. The fourth plea relates to the fine. The applicants submit that the Commission erred in law by imposing an excessive fine on them.

19. The Commission contends that the pleas should be rejected and challenges the admissibility of one of the heads of claim.

20. Those pleas and arguments will be analysed as follows. First, the Court will consider the Commission's preliminary plea of inadmissibility. Second, the main part of the second plea will be examined. The second part of that plea, put forward in the alternative, will be examined in conjunction with the third plea. The last part of the examination will cover the fourth plea.

Admissibility of the form of order sought

21. The Commission contends that the applicants' head of claim concerning default interest incurred by them in connection with the payment in whole or in part of the fine is inadmissible. Such a claim constitutes neither a ground for annulment nor an aspect of the costs. It merely concerns the manner in which the judgment is enforced.

22. The applicants submit, however, that their claim is admissible. It is settled case-law that the Commission is required to pay interest if the decision is annulled in a situation where the undertaking has already paid the fine (Case T-171/99 Corus UK v Commission [2001] ECR II-2967, paragraphs 54 and 55.

23. It should be observed, first, that the applicants have brought an action for annulment under Article 230 EC. That type of action may concern only the contested measure and cannot relate to acts that the institution may carry out after its adoption.

24. As the Commission correctly maintains, the partial or full repayment of the fine is a measure giving effect to a judgment annulling the contested decision but is not provided for by the decision itself. It is therefore a measure subsequent to, and distinct from, the contested decision.

25. Second, the Rules of Procedure, which make provision in Article 87 in respect of costs, do not, however, provide for the possibility of the Court deciding on the measures that the Commission must take in order to comply with its judgments (Case T-84/91 Meskens v Parliament [1992] ECR II-2335, paragraphs 78 and 79, and Case T-28-03 Holcim (Deutschland) v Commission [2005] ECR II-1357, paragraph 37).

26. In those circumstances, it must be concluded that the application is inadmissible in so far as it seeks an order that the Commission pay default interest incurred by the applicants, or by one of them, with respect to payment of all or part of the fine.

Second plea, concerning the scope of the single and continuous infringement

27. It is stated in recital 443 of the contested decision that the Commission considered that the conduct of all of the undertakings to which the decision was addressed, other than Stempher, constituted a single and continuous infringement. Recital 444 states that that cartel was characterised by an overall group (Valveplast) and regional and functional sub-groups that were apparently distinct, forming a consistent and coordinated arrangement. That finding is based on a number of factors:

- the members of Valveplast and the sub-groups were identical,

- quotas fixed at Valveplast level were reflected in the sub-groups;

- reference to Valveplast in the sub-groups;

- statements by participants who attended the meetings.

28. Recital 445 of the contested decision states that the activities of the cartel, despite the existence of separate groups and sub-groups that were nevertheless mostly linked to Valveplast, formed part of an overall strategy aimed at distorting the normal development of prices and restricting competition on the market in plastic industrial bags.

29. It should be noted at the outset that, of the four reasons cited at paragraph 27 above, two do not apply to the relationship between (i) Valveplast and (ii) the 'Teppema' group and the 'Belgium' sub-group, namely the reflection at sub-group level of quotas fixed at Valveplast level and the references made to Valveplast within the sub-groups. Indeed, the contested decision does not state that the quotas were reflected within that group and sub-group or that the documents relating to Valveplast referred to them or, conversely, that documents relating to that group and sub-group referred to Valveplast. As regards the two remaining factors - the fact that the members were the same and the statements of the representatives of the undertakings concerned - the Commission provides further details in recitals 496 to 512 of the contested decision.

30. By their second plea, the applicants challenge those factors. They maintain, in essence, that the Commission has not produced sufficient evidence to establish that the 'Belgium' sub-group and the 'Teppema' group were part of the single and continuous infringement established within Valveplast. They submit that the conduct of BPP gave rise to three distinct infringements, which the Commission should have penalised separately.

31. In support of that plea, the applicants put forward five arguments, which concern the products manufactured by BPP, BPP's participation in the Valveplast meeting of 21 November 1997, the overall coherence of the cartel, the statements of certain undertakings and the presence of the companies Wavin/BPI and Fardem at the meetings.

32. With regard to those arguments, it must be observed, as a preliminary point, that the applicants' arguments concerning BPP's participation in the meeting of 21 November 1997 and the fact that BPP did not manufacture the valve bags covered by the cartel concern BPP's individual situation and are therefore relevant for answering the question whether BPP was a member of Valveplast, an issue which will be examined below in the framework of the third plea. Those arguments are, however, irrelevant for the purpose of determining whether the 'Teppema' group and the 'Belgium' sub-group were party to the same general plan as that followed by the overall cartel, laid down within Valveplast. It is, in fact, necessary to determine, in the assessment of this plea, whether those two groups were linked to Valveplast, irrespective of BPP's membership.

33. Consideration should therefore be given, in the context of this plea, to whether the other arguments put forward by the applicants are sufficient to call in question the Commission's conclusion that the 'Teppema' group and the 'Belgium' sub-group were part of the overall cartel and whether the action taken within those groups was thus part of an overall plan pursuing a common objective, to which each of the undertakings concerned contributed in its own fashion.

Coherence of the general arrangement

34. The Commission lays emphasis, both in the contested decision and in the proceedings before the Court, on the overall vision of the various groups in order to conclude that there was an overall collusive strategy covering all plastic industrial bags. Each group brought together undertakings by reference to their specialist activities and their geographical areas of activity. Valveplast dealt essentially with valve bags and FFS ('Form, Fill and Seal') bags, the regional sub-groups acting consistently with the decisions taken at Valveplast level. According to recital 504 of the contested decision, a further division was introduced for Benelux: 'the "Benelux" sub-group dealing with FFS [products] and valve bags, while the "Belgium" sub-group and the "Teppema" group covered open-mouth bags in Belgium and the Netherlands respectively'.

35. That reasoning is not convincing.

36. First, the applicants are correct in maintaining that there is no specific document which substantiates the Commission's proposition that the 'Teppema' group and the 'Belgium' sub-group were elements in a coherent collusive structure. The Commission's proposition is thus merely one interpretation. The applicants' interpretation that the practices agreed within the two groups were sufficient in themselves without it being necessary to comply with decisions taken at a higher level is just as plausible as that of the Commission.

37. Second, the Commission does not explain why further specialisation was necessary in Benelux or why there could not, in the 'Benelux' sub-group, be - as was the case in the 'France' sub-group - parallel meetings of valve-bag producers and open-mouth bag producers. In addition, the establishment of two sub-groups for Benelux does not seem to be a very rational method of organisation, given in particular Valveplast's efforts to restructure when the 'Benelux' and 'Germany' sub-groups merged.

38. Third, the contested decision is unclear as regards the link between the 'Teppema' group and the meetings that took place within Valveplast. Whilst the recitals of the contested decision concerning the other sub-groups mention contemporaneous documents and statements of other undertakings, no recital refers to that type of evidence for the 'Teppema' group. In addition, it is apparent from recital 399 of the contested decision that the 'Teppema' group did not fall within the framework of Valveplast.

Statements by undertakings

39. With regard to the statements of undertakings concerning the link between (i) Valveplast and (ii) the 'Teppema' group and the 'Belgium' sub-group, it should be noted that the statements relied on by the Commission do not support the conclusion that the activities of those three groups formed part of the same overall plan.

40. First, so far as the link between the 'Teppema' group and Valveplast is concerned, the contested decision does not put forward any direct evidence that allows such a link to be established. Recital 507 of the contested decision refers solely to the explanations given by Wavin/BPI concerning a meeting of the 'Belgium' sub-group on 15 December 1992 (p. 29779 of the administrative file, footnote 599 to the contested decision). The following statement is made there:

'[B.] noted that [R.] (from Bonar) attended the "Dutch" sub-club meetings of Valveplast. [R.] was not present at this meeting, but this fact was mentioned. [B.] does not have any knowledge about the activities of the "Dutch" sub-club.'

41. In addition, Mr B. stated on the subject of the 'Teppema' group (p. 29775 of the administrative file, footnote 597 to the contested decision):

'[B.] believes this organisation only deals with the Dutch market. He is not sure what products it deals with and he has never attended any of its events.'

42. Although it is true that Mr B. thus makes a link between the 'Dutch' sub-group and Valveplast, the fact remains that at the same time he states that he has no knowledge of that sub-group. Furthermore, other persons from Wavin/BPI stated that the 'Teppema' group was not linked to Valveplast. First, Mr L. stated that 'as far as he was aware, these local meetings were not related to Valveplast' (p. 29768 of the administrative file). Second, Mr H., the Commission's main informant, made the following statement (p. 38354 of the administrative file):

'Teppema is an independent organisation covering the Dutch market and dealing with open mouth bags, a type of industrial bag. It is independent of Valveplast although I think it may have some historic links with the Nederlandse Vereniging van Foliefabrikanten [Netherlands Association for Manufacturers of Plastic Film]'.

43. Nor does the assertion in recital 394 of the contested decision that the 'Teppema' group and the 'Belgium' sub-group used the same calculation model for fixing prices allow a link to be established between, on the one hand, the group and the sub-group and, on the other, those groups and Valveplast. That assertion is, in fact, based on Mr H.'s statement that a calculation sheet, expressed in Belgian francs, used in the 'Belgium' sub-group, was attached to the minutes of a meeting of the 'Teppema' group which had been held on 13 December 1993 in Utrecht (Netherlands) (footnote 482 to the contested decision). Mr H. commented on those minutes, drawn up by Mr D. of Fardem, as follows:

'The document had as an attachment a model on how to price an open mouth bag which was distributed by [D.] (p. 123). The pricing model/system is not attached here but does appear at page 123.'

44. Mr H. also provides an explanation of the calculation sheet (that is to say, the one appearing at page 123):

'This is the open-mouth bag calculation model, used by the "Teppema" sub-club. This is the exact same document which was missing from an earlier document as an attachment ...'

45. Apart from the fact that Mr H.'s comments do not show a link between the 'Teppema' group and Valveplast, it should be noted that they relate to a document which was not directly attached to the minutes of the meeting of 13 December 1993 and that they are contradicted by Wavin/BPI itself. The latter stated, in that regard (pp. 28607 and 28608 of the administrative file):

'[H.] describes it as the open mouth bag club calculation model used by the "Teppema" sub-club. He says that it is the attachment to ... which refers on the second page to Belgium. The calculation model is in [Belgian francs]. In fact, we think this may not be correct. In the version of ..., the Dutch calculation model is attached. Further, the Belgian calculation model appears in another version attached to [H.'s] notes of a ["Belgium"] sub-club meeting.'

46. Second, with regard to the link between the 'Belgium' sub-group and Valveplast, recital 453 of the contested decision refers to a statement of Mr B. of Wavin/BPI (footnotes 544 and 597 of the contested decision). Mr B. stated that he frequently attended unofficial meetings connected to Valveplast. Mr B. provided the following details:

'This was a club whose members shared market figures for the Belgian and occasionally the Dutch market. The organisation of these meetings was rotated amongst the members of the club. The meetings dealt with issues (production figures, customer delivery times etc) relating to valve bags and open mouth bags.'

47. With regard to the frequency of the meetings, Mr B. gave the following explanation:

'The unofficial Valveplast meetings took place once a month and always in separate locations to the official Valveplast meetings. [B.] did not attend the official Valveplast meetings. The unofficial meetings normally took place at restaurants and hotel meeting rooms in Antwerp [Belgium] or other centrally located places in Belgium for ease of access for all participants. The international meetings took place every second month. [B.] cannot recall the name of the place where they were held. He did not attend these regularly and recalls attending only on two occasions. These meetings would be attended by German, French, Dutch and Belgian producers.'

48. The Court notes that Mr B. mentions two types of meetings concerning Belgium and that he establishes a connection between the unofficial meetings and Valveplast. He does not state, however, whether the unofficial meetings were meetings of the 'Belgium' sub-group and whether the international meetings were those of the 'Benelux' sub-group. It is therefore not possible to affirm, as the Commission does in recital 506 of the contested decision, that the unofficial meetings were meetings of the 'Belgium' sub-group, particularly as that sub-group was not concerned with either valve bags or the Dutch market.

49. Furthermore, in his statement concerning Valveplast and the 'Belgium' sub-group, Mr R., of Wavin/BPI, makes no mention of the 'Belgium' sub-group (p. 29736 of the administrative file). The same is true of the replies of the companies Bischof + Klein and Fardem to formal requests for information.

50. It should therefore be concluded that none of the statements made by the participants at the cartel meetings supports the claim that the 'Teppema' group and the 'Belgium' sub-group were linked to Valveplast.

Presence of Wavin/BPI and Fardem at the meetings

51. The Court observes that Fardem and Wavin/BPI were members of Valveplast, of the 'Belgium' and 'Benelux' sub-group and of the 'Teppema' group. They were thus in a position to ensure that the activities of those four entities were coordinated. Those two undertakings manufactured at least three of the four types of industrial plastic bags concerned, bags which were all manufactured from the same raw material, namely polyethylene.

52. It is not disputed that Fardem and Wavin agreed, with other undertakings, in the early 1980s, to set up Valveplast, which was supposed to regulate relations between competitors in the valve bags sector. During the same period, Fardem and Wavin played a part in setting up the 'Teppema' group and the 'Belgium' and 'Benelux' sub-groups.

53. The Court also notes that the restrictive practices agreed within the four entities in question had common characteristics and worked towards the same end, namely maintaining the trading margins obtained on the conversion of polyethylene into industrial plastic bags. Those four groups had, in particular, put in place calculation models that were so similar that it is possible that Mr H., of Wavin/BPI, may have mistaken the model used in the 'Teppema' group for that used in the 'Belgium' sub-group (see paragraph 48 above).

54. In addition, Fardem and Wavin/BPI maintained closer links between themselves than with the other members of the 'Teppema' group. In fact, it is clear from recital 388 of the contested decision that Fardem and Wavin/BPI circulated between themselves other figures than those made available to BPP.

55. In view of those concerted actions, Fardem and Wavin/BPI were able, through their participation in the three categories of meetings, to put in place an overall plan intended to maintain the trading margins on their polyethylene conversion activities for all the types of industrial bags that they manufactured. Since those bags are subject to the same fluctuations in raw material prices and since they are substitutable for certain uses, Fardem and Wavin/BPI had a common interest in coming to an understanding on the three types of bags. It should be observed in that regard that discussions within the 'Teppema' group occasionally ranged from open mouth bags to FFS bags (see recital 393 of the contested decision).

56. In those circumstances, the Commission was entitled to conclude that there was a single and continuous infringement, which included at least the conduct of Fardem and Wavin/BPI within the 'Teppema' group and the 'Belgium' sub-group.

57. The second plea must therefore be rejected.

Third plea, concerning the participation of BPP in the single and continuous infringement

58. According to Recital 452 of the contested decision, BPP was a member of the overall cartel because it regularly participated in the 'Belgium' sub-group and the 'Teppema' group and attended the Valveplast meeting of 21 November 1997. Recital 453 states that the link between the 'Belgium' sub-group and Valveplast can be seen from the statements of BPI Indupac and from the fact that two of the three to six members of that sub-group were also active members of Valveplast. The conclusion in that recital is that, since it regularly attended the 'Belgium' sub-group from 1991 onwards, BPP could not have been unaware of the existence and scope of the overall cartel of which that sub-group formed part.

59. In the present case, the applicants maintain that the Commission has not established that BPP participated in a single and continuous infringement. The Commission has not put forward any specific evidence supporting the conclusion that BPP employees should reasonably have been aware of the existence of Valveplast prior to 21 November 1997, the date on which one of those employees attended a Valveplast meeting for the first time. They also submit that the meeting of 21 November 1997 was a preparatory meeting with a view to the future collection of statistical data for FFS bags. However, since BPP submitted those data only in December 1997, the applicants cannot be held in any way liable for that conduct. They take the view that, in any event, participation in a preparatory meeting is not contrary to Article 81 EC.

60. The Commission contends that the applicants' arguments must be rejected in the light of the line of authority stemming from the judgment of the Court of Justice in Case C-49-92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 46. In order to show that BPP should reasonably have been aware of the cartel, the Commission relies on three factors, namely the fact that BPP was invited to the meeting of 21 November 1997, Mr F.'s statement that he had heard rumours about meetings relating to block bags and, to a lesser extent, the fact that Fardem and Wavin/BPI participated in all the meetings of Valveplast and its sub-groups. It submits that BPP's situation is not comparable to that of the applicant in the 'pre-insulated pipes' case (Case T-28-99 Sigma Tecnologie v Commission [2002] ECR II-1845), since BPP had participated in the central cartel meeting and was not a 'nuisance' as the company Sigma Tecnologie di rivestimento had been. Finally, the Commission argues that the anti-competitive purpose of the meeting of 21 November 1997 is clear from the working document handed to participants before the meeting.

61. As a preliminary point, the Court recalls that the existence of a single and continuous infringement does not necessarily mean that an undertaking participating in one or more manifestations of that infringement may be held liable for the infringement as a whole. The Commission still has to establish that that undertaking was aware of the anti-competitive activities at European level of the other undertakings or that it could reasonably have foreseen them. The mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice to render that undertaking responsible for the overall cartel. It is only if the undertaking knew or should have known when it participated in the agreement that in doing so it was joining in the overall cartel that its participation in the agreement concerned can constitute the expression of its accession to that cartel (Sigma Tecnologie v Commission, paragraph 60 above, paragraphs 44 and 45).

62. In the present case, the Commission thus had to prove that BPP knew or should reasonably have known that, by participating in the 'Teppema' group and the 'Belgium' sub-group, it had subscribed to an overall collusive plan, established by Fardem and Wavin/BPI, and linking those two groups to the cartel implemented within the framework of Valveplast. It is therefore appropriate to examine the three factors put forward by the Commission to that end (see paragraph 60 above).

63. With regard to the first factor relating to BPP's invitation to the meeting of 21 November 1997, it must first be stated that the anti-competitive purpose of that meeting is beyond doubt. It is clear from the working document discussed during that meeting that the participants, including BPP, were supposed to discuss a large number of sensitive topics: exchange of information, an increase in the converting price, the allocation of suppliers to the key customers and the appointment of coordinators for the key customers. The minutes of the meeting specify that BPP was represented at the meeting of 21 November 1997 and that it did not wish to participate in the cooperation in the valve bags sector but wished to limit its future involvement to FFS bags. It is thus established that BPP knew, or should reasonably have known, that its participation in the meeting of 21 November 1997 involved its accession to a wider collusive plan.

64. However, the mere fact of having been invited to a meeting at which competition was to be restricted is not sufficient, on its own, to prove that BPP knew, or should have known, about the existence of the cartel implemented within the framework of Valveplast before the date on which it attended that meeting. Moreover, BPP had no reason to take an interest in that cartel, inasmuch as it did not manufacture valve bags and started business in the FFS bag sector only in 1997.

65. Although it is clear from the letter of Mr M., of Sacherie de Pont-Audemer, dated 3 September 1997 and sent to Valveplast members, that BPP had probably been contacted before 21 November 1997 in order to check its availability for a first meeting with the members of Valveplast, there is no documentary evidence establishing that BPP had previously been informed about the true scope of that meeting. In that regard, the decision to broaden the Valveplast membership was taken only on 4 July 1997, when the existing members felt it necessary to strengthen Valveplast's activities in the FFS bags sector.

66. The second factor relied on by the Commission to prove that BPP was, or should have been, aware of the cartel implemented in the framework of Valveplast concerns Mr F's statement that he had heard rumours about meetings relating to block bags (recital 507 of the contested decision). That statement, which merely refers to rumours, does not mention Valveplast, however, nor the fact that the activities within the 'Teppema' group and the 'Belgium' sub-group were part of a more general collusive plan. Furthermore, Mr F. explained, in that statement, that he had never heard the name 'Valveplast' and that he was not aware of meetings at European level of the kind identified by the Commission. In those circumstances, Mr F.'s statement cannot serve as proof in support of the proposition that BPP knew, or should have known, before 21 November 1997, about the cartel implemented in the framework of Valveplast.

67. The third and final factor on which the Commission relies concerns the presence of Fardem and Wavin/BPI at the meetings of Valveplast, of the 'Teppema' group and of the 'Belgium' sub-group. That factor is one of the matters showing that there was a single and continuous infringement (see paragraphs 51 to 57 above), but it does not answer the question whether Fardem and Wavin/BPI had informed BPP of the existence of the cartel implemented in the framework of Valveplast and of the link between Valveplast and the discussions within the 'Teppema' group and the 'Belgium' sub-group. Contrary to the Commission's contention, the possibility that those undertakings might have informed BPP of the overall cartel does not mean that they did in fact do so.

68. In that regard, the Court recalls, first, that it is apparent from recital 388 of the contested decision that Fardem and Wavin/BPI did not share all the information with BPP. That selective information sharing rather suggests that Fardem and Wavin/BPI were not inclined to include BPP fully in their collusive scheme.

69. Second, inasmuch as Valveplast was concerned principally with valve bags and, subsequently, with FFS bags, the implementation in Benelux of decisions taken at the central level of the cartel did not depend on the activities of the 'Belgium' sub-group and the 'Teppema' group but on those of the Benelux sub-group. It was therefore of no advantage to Fardem and Wavin/BPI to include BPP in their collusive schemes.

70. It follows from those considerations that the Commission has not proved that BPP knew or should have known that, by participating in the meetings of the 'Teppema' group and the 'Belgium' sub-group, it was joining in a wider cartel extending over a number of European countries, before it was invited to the meeting on 21 November 1997.

71. Accordingly, the third plea must be accepted in so far as it contests BPP's participation in a single and continuous infringement before the meeting of 21 November 1997. The consequences of the partial annulment that follows from that finding will be examined at paragraphs 85 to 88 below.

Fourth plea, concerning the amount of the fine

72. By their fourth plea, the applicants challenge the level of the fine. This plea initially comprised three parts concerning (i) the passive role played by BPP, (ii) the fact that the fine was excessive and that no reasons were stated to justify it and (iii) failure to observe the ceiling for the fine laid down by Article 23 of Regulation No 1-2003. The last-mentioned complaint was put forward only in the event that the Court should accept the first plea. Since the applicants have withdrawn their first plea (see paragraph 12 above), the last part of the fourth plea has become devoid of purpose. The Court will thus consider only the first two parts.

Attenuating circumstances

73. With regard to the applicants' complaint that BPP played only a passive role within the 'Teppema' group and Valveplast, in the first place it is to be noted that 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') provide that the Commission may reduce the basic amount of the fine in order to take account of an exclusively passive or 'follow-my-leader' role in the infringement.

74. In that connection, it is clear from the case-law that the factors capable of revealing the passive role of an undertaking within a cartel include the significantly more sporadic nature of its participation in the meetings by comparison with the ordinary members of the cartel and likewise its belated entry to the market where the infringement occurred, regardless of the duration of its participation in the infringement, or also the existence of express declarations to that effect made by representatives of other undertakings which participated in the infringement (Case T-220/00 Cheil Jedang v Commission [2003] ECR II-2473, paragraph 168, and Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission [2004] ECR II-1181, paragraph 331).

75. In the second place, the Court does not accept the applicants' argument that the Commission undertook, in its statement of objections, to grant BPP a reduction of the amount of the fine on account of attenuating circumstances. The statement of objections merely states that the fact that an undertaking has not attended all the meetings of the cartel is a factor that the Commission may take into account in appraising the gravity of the infringement. The Commission did not state that it was required to do so or was going to do so.

76. In the third place, the applicants admit that BPP played an active role in the 'Belgium' sub-group. It was in fact represented at virtually all the meetings of that sub-group.

77. BPP was also a regular member of the 'Teppema' group, which it joined in late 1993. Of the 17 meetings listed in Annex 5 to the contested decision for the period from December 1993 to November 1997, BPP was represented at 12 of them. The fact that the Netherlands manufacturers did not share all the information with BPP does not affect that finding. Indeed, BPP concluded that, despite the attitude of other members of the group, it was more advantageous to continue participating than to withdraw from that group.

78. As regards BPP's direct participation in Valveplast as such, the Court recognises that that participation is in fact limited purely to the meeting of 21 November 1997. That issue was examined at paragraphs 64 and 65 above, in order to ascertain the time from which BPP could reasonably have known that its being represented in the 'Teppema' group and the 'Belgium' sub-group entailed its accession to a more general collusive scheme. That factor is however irrelevant for the purpose of ascertaining whether the role played by BPP in those groups was active or passive.

79. Likewise, the fact that BPP was not the instigator of the cartel and that the other undertakings compelled it to join the 'Teppema' group and to participate in the meeting of 21 November 1997 does not mean that it played a passive role. BPP could have complained to the competent authorities about the pressure brought to bear on it and lodged a complaint with the Commission rather than participating in such meetings (see, to that effect, Case T-9/99 HFB and Others v Commission [2002] ECR II-1487, paragraph 178; see also, to that effect, Case T-141/89 Tréfileurope v Commission [1995] ECR II-791, paragraph 58).

80. It follows that BPP did not play a passive role within the cartel and that the Commission was fully entitled to conclude that BPP's conduct did not justify a reduction of the fine on account of attenuating circumstances.

Determination of the starting amount of the fine

81. As regards the applicants' complaint concerning the obligation to state reasons regarding the justification for the starting amounts of the fine, it is clear from settled case-law that the Commission is entitled, for the purpose of appraising the gravity of the infringement, to divide the undertakings participating in a cartel into categories and that it enjoys a wide discretion for that purpose, provided that it acts in a coherent, objective and non-discriminatory manner (see, to that effect, Case C-308/04 P SGL Carbon v Commission [2006] ECR I-5977, paragraphs 49 and 86).

82. In this instance, BPP participated in a very serious infringement in respect of which the Guidelines provide for a flat-rate starting amount of EUR 20 million. It can be seen from recital 777 of the contested decision that the Commission adopted that amount, at the level of the third category, thereby applying more lenient treatment for the lower-ranked categories and harsher treatment for the higher-ranked categories. The Commission thus applied the Guidelines in a balanced and moderate way, so that it cannot be accused of having acted in an arbitrary or disproportionate manner. Accordingly, there is no reason to require it to explain the specific reasons which led it to decide to set a starting amount lower than EU 20 million, since its decision shows to the requisite legal standard the reasons which in themselves justify setting the basic amount at the level determined by that decision (see, by analogy, Case T-279/02 Degussa v Commission [2006] ECR II-897, paragraph 197).

83. Accordingly, the Court rejects the second part of the fourth plea and, consequently, the fourth plea in its entirety must be rejected.

84. It follows from all the foregoing considerations that the contested decision must be annulled in so far as it is based on the finding that BPP knew, or should reasonably have known, that its participation in the activities of the 'Belgium' sub-group and the 'Teppema' group entailed its accession, prior to 21 November 1997, to the collusive plan agreed within Valveplast (see paragraphs 59 to 72 above).

85. As regards the consequences which should follow from that partial annulment, the applicants have argued, in their third plea, that BPP's situation should have been likened, in accordance with the principle of equal treatment, to that of Stempher, with the result that the starting amount used for calculating the applicant's fine should be reduced by 25%.

86. In that regard, the Court observes that the infringement which Article 1(2) of the contested decision attributes to Stempher coincides with that committed by BPP. Those two undertakings infringed Article 81 EC by participating in restrictive practices affecting Belgium and the Netherlands, the only difference being BPP's participation in the central cartel for the week of 21 to 28 November 1997, in a context dominated by the sale of BPP's business and assets to BPI.

87. In those circumstances, the Court concludes, in the exercise of the unlimited jurisdiction conferred on it by Article 31 of Regulation No 1-2003, that there should be applied to BPP the same treatment as that applied by the Commission, in the contested decision, to Stempher. It follows that the starting amount of EUR 8.5 million must be reduced by 25% giving rise to a new starting amount of EUR 6.375 million. The latter amount must be increased by 60% for duration and then reduced by 10% on the ground that the facts were not contested. As a result of those calculations, the fine should be set at EUR 9.18 million.

Costs

88. Under Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads.

As the action has been only partially successful, the Court considers it fair in the circumstances of the case to order each party to bear its own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1. Sets the amount of the fine imposed by Article 2(l) of Commission Decision C (2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.354 - Industrial bags) at EUR 9.18 million;

2. Dismisses the action as to the remainder;

3. The European Commission, Low & Bonar plc and Bonar Technical Fabrics NV shall each bear their own costs.