GC, 3rd chamber, May 14, 2014, No T-30/10

THE GENERAL COURT (Third Chamber),

Background to the dispute

1 The present case concerns Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP-38589 - Heat Stabilisers) ('the contested decision'; summary published in OJ 2010 C 307, p. 9).

2 By the contested decision, the Commission found that a number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in two groups of anti-competitive agreements and concerted practices covering the territory of the EEA and concerning, on the one hand, the tin heat stabiliser sector ('the tin stabilisers') and, on the other, the epoxidised soybean oil and esters sector ('the ESBO-esters sector').

3 The contested decision finds that there had been two infringements relating to those two categories of heat stabilisers, which are products added to polyvinyl chloride (PVC) products in order to improve their thermal resistance (recital 3 in the contested decision).

4 According to Article 1 of the contested decision, each of those infringements consisted in fixing prices, allocating markets through sales quotas, allocating customers and exchanging commercially sensitive information, in particular on customers, production and sales.

5 The contested decision states that the undertakings concerned participated in those infringements during several periods between 24 February 1987 and 21 March 2000, as regards tin stabilisers, and between 11 September 1991 and 26 September 2000, as regards the ESBO-esters sector.

6 The applicant, Reagens SpA, which has its principal place of business in San Giorgio di Piano (Italy), is the ultimate parent company of an international group which manufactures and sells tin stabilisers and purchases epoxidised soybean oil and esters for resale (recital 63 in the contested decision).

7 The contested decision holds the applicant liable in that it participated in the infringement relating to tin stabilisers from 20 November 1992 to 21 March 2000.

8 The investigation leading to the adoption of the contested decision was initiated following the submission by Chemtura, on 26 November 2002, of a request for immunity under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; 'the 2002 Leniency Notice') (recitals 79 and 80 in the contested decision).

9 On 12 and 13 February 2003, the Commission carried out investigations at the premises of CECA (France), Baerlocher (Germany, France, Italy and the United Kingdom), the applicant (Italy), Akcros (the United Kingdom) and Rohm & Haas (France) pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), as amended.

10 In the course of the inspection carried out at Akcros, that company's representatives informed the Commission officials that certain documents were covered by the protection of confidentiality of communications between lawyers and their clients (recital 81 in the contested decision). The claim to that protection was subsequently the subject of legal proceedings brought on 11 April 2003 and 4 July 2003 before the General Court, which culminated in its judgment in Joined Cases T-125-03 and T-253-03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II-3523, dismissing the applications (recitals 84 to 90 in the contested decision) ('the Akzo proceedings').

11 On 8 October 2007 and on several occasions in 2008, the Commission sent out requests for information to the undertakings concerned, including the applicant, pursuant to Article 18 of Council Regulation (EC) No 1-2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (recitals 91 and 92 in the contested decision).

12 On 17 March 2009 the Commission adopted a statement of objections which was sent on 18 March 2009 to several undertakings, including the applicant (recital 95 in the contested decision).

13 The applicant replied to the statement of objections by letter of 25 May 2009.

14 During the procedure preceding the adoption of the contested decision, the applicant submitted a request - rejected by the Commission - on the basis of paragraph 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1-2003 (OJ 2006 C 210, p. 2; 'the 2006 Guidelines').

15 On 11 November 2009 the Commission adopted the contested decision.

16 On 27 November 2009 the applicant requested further access to the non-confidential version of the Commission's file, particularly as regards the documents relating to the application of paragraph 35 of the 2006 Guidelines to two other undertakings involved, including Baerlocher.

17 The Commission rejected that request on 9 and 21 December 2009.

18 On 5 January 2010 the applicant submitted to the Commission a confirmatory application for access to those documents.

19 On 23 February 2010 the Commission rejected the applicant's confirmatory application of 5 January 2010. The applicant brought an action challenging that decision (judgment of 20 March 2014 in Case T-181-10 Reagens v Commission, not published in the ECR).

20 On 8 January 2010 the applicant submitted to the Commission's Accounting Officer a request for suspension of payment of the fine. After that request had been received, the applicant and staff of the Commission's Accounting Officer communicated orally on the possibility of providing a bank guarantee.

21 Article 1 of the contested decision holds the applicant liable for its participation in the infringement relating to tin stabilisers from 20 November 1992 to 21 March 2000.

22 As regards its power to impose a fine on the applicant for the aforementioned infringement, the Commission rejected the arguments put forward by the undertakings concerned, to the effect that the suspension granted in the Akzo proceedings pursuant to Article 25(6) of Regulation No 1-2003 applied only to the parties to those proceedings, namely Akzo Nobel Chemicals and Akcros Chemicals. The Commission took the view that that suspension had an effect erga omnes, with the result that the limitation period had been suspended in respect of all the undertakings concerned by the investigation, including the applicant (recitals 672 to 682 in the contested decision).

23 In order to set the amount of the fine, the Commission applied the 2006 Guidelines.

24 Article 2 of the contested decision reads:

'For the infringement(s) in the tin stabiliser sector ... the following fines are imposed:

...

(16) Reagens SpA is liable for EUR 10 791 000.'

Procedure and forms of order sought by the parties

25 By application lodged at the Registry of the Court on 29 January 2010, the applicant brought the present action.

26 By separate document lodged at the Registry of the Court on the same day, the applicant filed an application for suspension of the operation of the contested decision.

27 On 10 February 2010 the President of the Court ordered suspension of the operation of Article 2 of the contested decision in so far as it concerned the applicant, pending the making of the order terminating the proceedings for interim relief.

28 By order of the President of the Court of 12 May 2010 in Case T-30-10 R Reagens v Commission, not published in the ECR, the applicant's application for suspension of operation of the contested decision was dismissed.

29 By letters lodged at the Registry of the Court on 12 July 2011, the Commission indicated that, in the light of the Court of Justice's judgment in Joined Cases C-201-09 P and C-216-09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others [2011] ECR I-2239, it was withdrawing its arguments that the suspension of the limitation period, pursuant to Article 25(6) of Regulation No 1-2003, by the Akzo proceedings applied erga omnes, including as regards the applicant. The Court took formal note of that withdrawal.

30 Upon hearing the report of the Judge Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, called on the applicant to reply to certain questions, in particular to specify clearly which paragraphs of the application related to each of the ten pleas set out in paragraph 220 thereof.

31 The applicant complied with that request within the period prescribed and the Commission submitted its observations on the applicant's reply.

32 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 19 September 2012.

33 At the hearing, the Court asked the applicant to produce its turnover for 2011.

34 The applicant having complied with that request within the period prescribed, the Court requested the Commission to submit any observations it might wish to make on that document.

35 Those observations were lodged within the period prescribed.

36 The applicant claims that the Court should:

- annul the contested decision;

- in the alternative, reduce the amount of the fine imposed on the applicant;

- order a measure of organisation of procedure concerning the application of paragraph 35 of the 2006 Guidelines in relation to two other undertakings and in relation to all submissions by the addressees of the contested decision after the notification of the statement of objections;

- order the Commission to pay the costs.

37 The Commission contends that the Court should:

- dismiss the action in its entirety;

- order the applicant to pay the costs.

Law

38 By the present action, the applicant claims that the Court should annul the contested decision and, in the alternative, reduce the amount of the fine imposed on the applicant.

39 In support of its claims, the applicant relies on ten pleas in law, which it sets out in paragraph 220 of its application.

40 In view of the applicant's reply to the question put to it by the Court as regards which paragraphs of the application relate to and support the ten pleas in law set out in paragraph 220 thereof, the applicant must be regarded as claiming (i) that the Commission infringed the principles of sound administration and of legitimate expectations (third plea in law); (ii) that the Commission also infringed the principle of sound administration and the principle that the Commission must act within a reasonable time (ninth plea in law); (iii) that the Commission infringed its rights of defence (fourth, fifth and tenth pleas in law); (iv) that, in essence, the Commission infringed Article 81 EC and Article 53 of the EEA Agreement (first plea in law), in that it did not establish the existence of the infringement after '1996-1997', with the result that its action was time-barred (second plea in law); and (v) that, as regards the amount of the fine imposed on it in the contested decision, the Commission infringed Article 81 EC by incorrectly applying the 2006 Guidelines (eighth plea in law), and infringed the principles of equal treatment (sixth plea in law) and proportionality (seventh plea in law).

41 In addition, in its reply, the applicant submits that the Commission's defence is inadmissible, since it did not respond to the application in accordance with formal requirements and within the prescribed period.

Admissibility of the Commission's defence

42 According to the applicant, the statement of defence which it received from the Commission is stated to be a 'certified copy of the original'. If that is so, then, in the applicant's submission, the Commission has not lodged a defence in the proper format within the prescribed period, since that document is not signed, in breach of Article 43 of the Court's Rules of Procedure.

43 If, on the contrary, the Commission should maintain that another pleading was properly signed at the end, it is also in breach of Article 43, since the document served on the applicant is not a copy of that signed document, the Commission did not provide the Court with an original and six copies of the document as required and the defence was not lodged within the prescribed period.

44 The applicant submits that its claims must therefore be upheld.

45 If the Court should consider that the Commission's defence was validly lodged and that there has been no breach of Article 43 of the Rules of Procedure, the applicant claims that the defence must be deemed not to have been served on it.

46 The Commission asserts that it lodged its defence in the proper format and within the prescribed period. Accordingly, it contends that the applicant's arguments in that regard are wholly unfounded and that the applicant's objection of inadmissibility should be rejected.

47 In that regard, it must be pointed out that the original of the Commission's defence, lodged at the Court Registry within the prescribed period, was duly signed.

48 Moreover, it does not follow from any provision of the Rules of Procedure, or of the Practice Directions to Parties, that the certified copies of the original, lodged at the Court Registry with the signed original of the pleading and notified to the other parties, must also be signed.

49 Accordingly, the objection of inadmissibility raised by the applicant concerning the Commission's defence must be rejected.

The measure of organisation of procedure sought

50 In its application, the applicant requests the Court to adopt a measure of organisation of procedure concerning the application of paragraph 35 of the 2006 Guidelines in relation to two other undertakings and in relation to all submissions by the addressees of the contested decision after the notification of the statement of objections.

51 The applicant states that, on 27 November 2009, it asked the Commission for further access to the non-confidential version of the Commission's file in the present case in order to understand certain arguments presented by the other addressees of the decision, both in respect of the general documents submitted after notification of the statement of objections and in respect of the application lodged by two other undertakings under paragraph 35 of the 2006 Guidelines.

52 According to the applicant, on 9 December 2009 the Commission denied that request, in breach of the applicant's rights of defence.

53 In order to remedy that breach, the applicant claims that the Court should examine the correspondence between the Commission and the addressees of the decision and all the documents submitted between 18 March 2009 (the date of notification of the statement of objections) and 29 January 2010 (the date on which the application was lodged), and order the Commission to produce those documents and to make them available to the applicant or, in confidence, to the applicant's lawyers.

54 The applicant thus seeks a measure of organisation of procedure, within the meaning of Article 64(3)(d) of the Rules of Procedure.

55 Under that provision, the General Court may order parties to produce documents, in order to ensure that cases are prepared for hearing, procedures carried out and disputes resolved under the best possible conditions.

56 However, to enable the Court to determine whether it is conducive to the proper conduct of the procedure to order the production of certain documents, the party requesting production must identify the documents requested and provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings (Case C-185-95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 93, and Joined Cases T-109-02, T-118-02, T-122-02, T-125-02, T-126-02, T-128-02, T-129-02, T-132-02 and T-136-02 Bolloré and Others v Commission [2007] ECR II-947, paragraph 730).

57 In the present case, the applicant's request does not meet those conditions.

58 The applicant in no way identifies the documents whose production it seeks, except by reference to a given period of ten months, which, moreover, covers a period of more than two months after the adoption of the contested decision.

59 It is true that, in paragraph 221 of the application, it expressly seeks access to documents relating to paragraph 35 of the 2006 Guidelines concerning two other undertakings involved.

60 However, those parts of the file are not referred to in the arguments, set out in paragraphs 14 to 29 of the application, put forward in support of the request,, with the result that no reasons are stated for the grant of access to those documents.

61 It must also be noted that the applicant has not provided any information in support of the request to indicate the utility of those documents for the purposes of the proceedings, but rather has merely alleged an infringement of its rights of defence, without supporting that claim in any way.

62 The request for a measure of organisation of procedure must therefore be refused.

The third plea in law, alleging infringement of the principles of sound administration and of legitimate expectations

63 In the context of its third plea in law, the applicant claims that the Commission infringed the principle of sound administration and the applicant's legitimate expectations that the Commission would conduct its investigation to the best of its ability, in a rigorous and diligent manner, and would not ignore evidence of competition.

64 First of all, it must be pointed out that although this plea in law is indeed set out in paragraph 220 of the application, it is done so only in an entirely abstract manner, and it is in no way supported in either the application or the reply.

65 In its response to the question thereon put to it by the Court, the applicant indicated that paragraphs 36 to 38, 49 and 50 of the application were related to its third plea in law.

66 However, those paragraphs of the application are entirely unrelated to the principles of sound administration and legitimate expectations, since they refer to evidence which the applicant puts forward to show its competitive behaviour, and are therefore irrelevant to the assessment of the third plea in law.

67 It should be borne in mind that, under Article 44(1)(c) of the Rules of Procedure, an application must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must accordingly specify the nature of the grounds on which the action is based, so that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (Case T-102-92 Viho v Commission [1995] ECR II-17, paragraph 68, and Case T-432-05 EMC Development v Commission [2010] ECR II-1629, paragraph 43).

68 Accordingly, even though the application contains a reference, in paragraph 220, to the third plea in law, alleging infringement of the principles of sound administration and of legitimate expectations, no arguments are developed in support of that complaint, which must therefore be declared inadmissible for failure to satisfy the requirements of Article 44(1)(c) of the Rules of Procedure (see, to that effect, EMC Development v Commission, paragraph 47).

69 Accordingly, the third plea in law must be rejected.

The ninth plea in law, alleging infringement of the principle of sound administration and of the principle that the Commission must act within a reasonable time

70 In the context of its ninth plea in law, the applicant alleges an infringement of the principle of sound administration and of the principle that the Commission must act within a reasonable time because of the length of the administrative procedure.

71 The applicant claims that an excessively long time elapsed between the start of the investigations, on 12 February 2003, the first letter sent to the applicant, on 8 October 2007, the statement of objections, on 18 March 2009, and the adoption of the contested decision, on 11 November 2009 - more than six years in total.

72 In the applicant's view, such a delay cannot be justified by the level of complexity of the case. Furthermore, according to the applicant, the Commission did not have to suspend the administrative procedure as regards the applicant pending the outcome of the Akzo proceedings.

73 The Commission states that it acknowledged, in recital 771 in the contested decision, that the investigation phase had lasted longer than usual due to particular circumstances, which justified an exceptional reduction of 1% of the amount of the fines imposed, including for the applicant. It submits, however, that it was required to await the outcome of the Akzo proceedings, and that it is therefore not responsible for the length of the procedure.

74 The Commission also submits that even if it were responsible for the length of the procedure, that could not bring about the annulment of the decision, since the applicant's rights of defence were not affected.

75 In that respect, it must be pointed out that, according to settled case-law, compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of law whose observance the Courts of the European Union ensure (Case C-113-04 P Technische Unie v Commission [2006] ECR I-8831, paragraph 40 and the case-law cited). That principle has been enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.

76 It must also be pointed out that the examination of any interference with the effective exercise of the rights of the defence must not be confined to the inter partes phase of the administrative procedure, but must extend to the entire procedure and be carried out by reference to its total duration (Technische Unie v Commission, paragraphs 54 and 55).

77 In the present case, it is undisputed that, as noted in paragraphs 9 to 15 above, the Commission initiated its investigation by inspections carried out on 12 and 13 February 2003, and resumed that investigation by requests for information to the undertakings concerned, including the applicant, on 8 October 2007, and that it sent them a statement of objections on 18 March 2009, before adopting the contested decision on 11 November 2009.

78 Consequently, as regards the applicant, the administrative procedure lasted from 11 February 2003 to 11 November 2009 - more than six years.

79 In addition, it must be noted that, in the contested decision, the Commission, in respect of the applicant and others, reduced the amount of the fine in order to take into account the length of the administrative procedure.

80 It can also be seen from the case-law that there is no legal basis for the annulment of a Commission decision, even if the proceedings are excessively long, where it has not been fully substantiated that the ability of the undertakings concerned to defend themselves has been adversely affected and there is therefore no indication that the excessive duration of the proceedings could have affected the content of the Commission's decision (see, to that effect, Baustahlgewebe v Commission, paragraph 49, and Case T-276-04 Compagnie maritime belge v Commission [2008] ECR II-1277, paragraph 45).

81 If that is not the case, the failure to comply with the principle that the Commission must act within a reasonable time has no effect on the validity of the administrative procedure and is not sufficient to render the contested decision unlawful.

82 In the present case, in its response to the question thereon put to it by the Court, the applicant indicated that its ninth plea in law is supported by the arguments set out in paragraphs 155 to 164 of its application.

83 In those paragraphs, the applicant first claims that, as a result of the excessive duration of the administrative procedure, the fine imposed on it in 2009 was higher than it would have been if the Commission had adopted the contested decision in 2004, in view of the applicant's turnover as taken into account by the Commission.

84 The applicant then claims that the Akzo proceedings did not have the effect of suspending the limitation period.

85 To reject those arguments in the present context it is sufficient ground to note that they are ineffective for the purpose of establishing an infringement of the applicant's rights of defence.

86 Lastly, the applicant claims that, because of the length of the administrative procedure, it did not think that it had to prepare a defence, given the Commission's silence during the period between the first inspection measures, on 12 and 13 February 2003, and the requests for information sent to the undertakings involved, including itself, on 8 October 2007.

87 Moreover, according to the applicant, the time which elapsed between the end of the Akzo proceedings and the adoption of the contested decision jeopardised its defence.

88 It is sufficient ground to reject that argument to point out that it is extremely generic and entirely unsupported by detailed evidence showing that the applicant's rights of defence were infringed and that there are indications that the length of the administrative procedure could have affected the content of the contested decision.

89 It must therefore be found that the applicant has in no way established an infringement of its rights of the defence because of the length of the administrative procedure.

90 Accordingly, any potential infringement of the principle of sound administration and of the principle that the Commission must act within a reasonable time resulting from the length of the administrative procedure could not render the contested decision unlawful in the present case.

91 Nevertheless, in its response to a question thereon put to it by the Court, the applicant indicated that, by its ninth plea in law, it also sought variation of the contested decision as regards the amount of the fine imposed on it.

92 In that respect, it must be pointed out that, in the contested decision, the Commission reduced the amount of the fine, on the applicant among others, in order to take account of the length of the administrative procedure, as noted in paragraph 73 above.

93 In the exercise of its unlimited jurisdiction, the Court considers that the reduction in the amount of the fine granted in the contested decision is appropriate in view of the circumstances of the present case.

94 Accordingly, the ninth plea in law must be rejected.

The fourth, fifth and tenth pleas in law, alleging infringement of the rights of the defence

95 By its fourth, fifth and tenth pleas, the applicant alleges infringement of its rights of defence, in that the Commission did not correctly examine the evidence provided by the applicant in response to the statement of objections and at the hearing of the parties (fourth plea), in that it did not allow the applicant further access to the non-confidential version of the file (fifth plea) and in that it did not continue its investigation during the Akzo proceedings (tenth plea).

The fourth plea in law, alleging infringement of the rights of the defence in that the Commission did not correctly examine the evidence that the applicant provided in response to the statement of objections and during the hearing of the parties

96 In its fourth plea in law, the applicant claims that the Commission infringed its rights of defence in that the Commission did not correctly examine the evidence that the applicant provided in response to the statement of objections and during the hearing of the parties.

97 First of all, it must pointed out that, although that plea in law is indeed set out in paragraph 220 of the application, it is done so only in an entirely abstract manner and it is in no way supported in either the application or the reply.

98 In its response to a question thereon put to it by the Court, the applicant indicated that various paragraphs of the application relate to its fourth plea in law.

99 However, those paragraphs of the application in no way show any infringement of the applicant's rights of defence arising from the Commission's examination of the evidence put forward during the administrative procedure, but rather concern that evidence itself, with the result that those paragraphs are not relevant to the assessment of the fourth plea in law.

100 It should be borne in mind that, under Article 44(1)(c) of the Rules of Procedure, an application initiating proceedings must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must, accordingly, specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (Viho v Commission, paragraph 68, and EMC Development v Commission, paragraph 43).

101 Accordingly, even though the application contains a reference, in paragraph 220, to the fourth plea in law, alleging infringement of the rights of the defence, no arguments are developed in support of that plea in law, which must therefore be declared inadmissible for failure to satisfy the requirements of Article 44(1)(c) of the Rules of Procedure (see, to that effect, EMC Development v Commission, paragraph 47).

The fifth plea in law, alleging infringement of the rights of the defence in that the Commission did not allow the applicant further access to the non-confidential version of the file

102 The applicant states that on 27 November 2009, that is, after the adoption of the contested decision on 11 November 2009, it asked the Commission for further access to the non-confidential version of the file in order to examine the submissions of two undertakings involved in relation to their application under paragraph 35 of the 2006 Guidelines, but that the Commission denied that request, stating that there was no new evidence in the file.

103 The applicant claims to have identified, in the contested decision, 24 footnotes and four recitals referring to information inserted in the file after the only occasion on which the applicant was authorised to consult it, which constituted a breach of its rights of defence.

104 The Commission maintains that the applicant had access to the file, before the adoption of the contested decision, on 24 March 2009 and on 15 April 2009, and that, with regard to both the incriminating and exculpatory documents to which it refers, the applicant had access to them before the contested decision was adopted.

105 In that respect, it is clear that, in its fifth plea in law, the applicant invokes an infringement of its rights of defence in that the Commission did not allow it further access to the non-confidential version of the file, but the refusal in question occurred only after the contested decision had been adopted, and it cannot therefore entail the annulment of the contested decision, the lawfulness of which must be assessed at the time of its adoption.

106 Accordingly, the fifth plea in law must be rejected.

The tenth plea in law, alleging infringement of the applicant's rights of defence in that the Commission did not continue its investigations during the Akzo proceedings

107 In its tenth plea in law, the applicant claims that its rights of defence were prejudiced because the Commission did not continue the investigation during the Akzo proceedings.

108 First of all, it must pointed out that although that plea in law is indeed set out in paragraph 220 of the application, it is done so only in an entirely abstract manner and it is in no way supported in either the application or the reply.

109 In its response to a question thereon put to it by the Court and requiring a reply before the hearing, the applicant indicated that paragraphs 159 to 164 of the application related to its tenth plea in law.

110 However, those paragraphs of the application relate, as the applicant also confirms, to the ninth plea in law, alleging infringement of the principle of sound administration and of the principle that the Commission must act within a reasonable time, and in no way show any infringement of the applicant's rights of the defence arising from the fact that the Commission did not continue the investigation during the Akzo proceedings, with the result that those paragraphs cannot be relevant to the assessment of the tenth plea in law.

111 It should be borne in mind that, under Article 44(1)(c) of the Rules of Procedure, an application initiating proceedings must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must, accordingly, specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (Viho v Commission, paragraph 68, and EMC Development v Commission, paragraph 43).

112 Accordingly, even though the application contains a reference, in paragraph 220, to the tenth plea in law, alleging infringement of the rights of the defence, no arguments are developed in support of that plea, which must therefore be declared inadmissible for failure to satisfy the requirements of Article 44(1)(c) of the Rules of Procedure (see, to that effect, EMC Development v Commission, paragraph 47).

113 Consequently, the tenth plea in law must be rejected.

The first and second pleas in law, alleging infringement of Article 81 EC and Article 53 of the EEA Agreement, and that the Commission's action was time-barred

114 In its first and second pleas in law, the applicant claims, in essence, that the Commission infringed Article 81 EC and Article 53 of the EEA Agreement since it failed to prove offending conduct on the applicant's part throughout the period referred to in the contested decision and that the decision must be annulled on the ground that it was time-barred.

115 In that regard, it claims that the Commission has not adduced any evidence of unlawful conduct on its part 'between January 1996 and March 1997', with the result that its powers to impose fines were time-barred in respect of the period prior to 1996.

116 In any event, the applicant contests the probative value of the evidence relied on by the Commission in the contested decision to show that the infringement had continued until 11 November 1999.

Relevant case-law

117 It must be noted that, as regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Baustahlgewebe v Commission, paragraph 58; Case C-49-92 Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 86; and Joined Cases C-2-01 P and C-3-01 P BAI and Commission v Bayer [2004] ECR I-23, paragraph 62).

118 It is accordingly necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place (see Joined Cases T-67-00, T-68-00, T-71-00 and T-78-00 JFE Engineering and Others v Commission [2004] ECR I-2501, paragraph 179 and the case-law cited).

119 Admittedly, if the Commission finds that there has been an infringement of the competition rules on the basis that the established facts cannot be explained other than by the existence of anti-competitive behaviour, the Courts of the European Union will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that an infringement occurred. In such a case, it cannot be considered that the Commission has adduced proof of an infringement of competition law (see, to that effect, Joined Cases 29-83 and 30-83 Compagnie royale asturienne des mines and Rheinzink v Commission [1984] ECR 1679, paragraph 16, and Joined Cases C-89-85, C-104-85, C-114-85, C-116-85, C-117-85 and C-125-85 to C-129-85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraphs 126 and 127).

120 However, it can also be seen from the case-law that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (JFE Engineering and Others v Commission, paragraph 180, and Case T-54-03 Lafarge v Commission [2008], not published in the ECR, paragraphs 56 and 271).

121 It must also be borne in mind that since the prohibition on participating in anti-competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum (Joined Cases C-204-00 P, C-205-00 P, C-211-00 P, C-213-00 P, C-217-00 P and C-219-00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 55).

122 Furthermore, even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by inference (Aalborg Portland and Others v Commission, paragraph 56).

123 Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Aalborg Portland and Others v Commission, paragraph 57).

124 In addition, according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see, to that effect, Case T-43-92 Dunlop Slazenger v Commission [1994] ECR II-441, paragraph 79, and Case T-11-06 Romana Tabacchi v Commission [2011] ECR II-6681, paragraph 132).

125 The Court of Justice has also held that, where the Commission had been able to establish that an undertaking had taken part in meetings between undertakings of a manifestly anti-competitive nature, the General Court was entitled to consider that it was for that undertaking to provide another explanation of the tenor of those meetings. In so doing, the General Court did not unduly reverse the burden of proof and did not set aside the presumption of innocence (Case C-235-92 P Montecatini v Commission [1999] ECR I-4539, paragraph 181).

126 Likewise, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was not capable of affecting the probative value of the evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, on the one hand, the existence of the circumstance relied on by it and, on the other, that that circumstance calls in question the probative value of the evidence relied on by the Commission (Case T-141-08 E. ON Energie v Commission [2010] ECR II-5761, paragraph 56).

127 Moreover, in accordance with settled case-law, to prove to the requisite legal standard that an undertaking participated in a cartel, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded, without manifestly opposing them. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see, to that effect, Aalborg Portland and Others v Commission, paragraph 81, and Case C-510-06 Archer Daniels Midland v Commission [2009] ECR I-1843, paragraph 119).

128 It is in the light of those considerations that the Court must examine whether, in the contested decision, the Commission established to the requisite legal standard that the applicant participated in the infringement relating to tin stabilisers from 20 November 1992 to 21 March 2000.

The duration of the infringement

129 In the present case, it must first of all be pointed out that, although the applicant claims that the infringement relating to tin stabilisers came to an end in 'January 1996', it expressly acknowledges, in its written pleadings before the Court, the existence of that infringement during the earlier period, namely from 20 November 1992 to 'January 1996' ('the first phase of the cartel').

130 Thus the applicant does not dispute either the existence or the purpose of the cartel, only its duration.

131 It is therefore not necessary to examine whether the Commission established to the requisite legal standard the applicant's unlawful conduct during the first phase of the cartel.

132 However, the applicant's primary claim is that the Commission did not establish the existence of the infringement after the first phase of the cartel, namely from 'January 1996' to 11 November 1999 ('the second phase of the cartel'), and, in any event, it contests the probative force of the evidence relied on by the Commission in the contested decision in order to prove that the infringement continued beyond 11 November 1999 ('the third phase of the cartel').

133 It must also be noted that the applicant admits that the unlawful conduct during the first phase of the cartel took place principally in the meetings in Switzerland organised by AC-Treuhand ('the AC-Treuhand meetings').

134 The applicant also acknowledges that it participated in the AC-Treuhand meetings during the first phase of the cartel.

135 It does not deny that, during the first phase of the cartel, the AC-Treuhand meetings were all 'convened', in full knowledge of the unlawful nature of the purpose of those meetings, by Mr S., an employee of AC-Treuhand.

136 The applicant also acknowledges the existence of the AC-Treuhand meetings during the second and third phases of the cartel.

137 It does not deny that it participated in the AC-Treuhand meetings during the second and third phases of the cartel.

138 Nor does it deny that all the AC-Treuhand meetings which took place during the second and third phases of the cartel were also convened by Mr S., and involved almost all the undertakings which had participated in the AC-Treuhand meetings during the first phase of the cartel.

139 Lastly, the applicant does not claim that, during the second and third phases of the cartel, it distanced itself publicly from the purpose of the AC-Treuhand meetings.

140 Consequently, in order to assess the applicant's first plea in law, it suffices to examine whether the Commission, in the contested decision, established, to the requisite legal standard, that the AC-Treuhand meetings in which the applicant participated during the second and third phases of the cartel, namely from 'January 1996' to 21 March 2000, had an anti-competitive object, like the AC-Treuhand meetings which took place during the first phase of the cartel.

141 First, as regards 1996, in the contested decision the Commission established the existence of six AC-Treuhand meetings, which took place in Zurich (Switzerland) on 8 and 9 January, 15 and 16 July and 6 and 7 November (recital 242 in the contested decision). The applicant does not deny either the existence of those meetings or its participation in them.

142 Second, the Commission relied on a document and handwritten notes found at the premises of Baerlocher and dated 8 January 1996 referring to discussions on sales volumes and prices of tin stabilisers charged to specific customers, and on quotas (recitals 243 and 244 in the contested decision), which the applicant does not dispute.

143 Third, the Commission relied on a letter dated 27 November 1996 and found at the premises of Baerlocher. That letter, which was drafted and sent by AC-Treuhand, provides the statistics for tin stabilisers for October 1996 in the western Europe market (recital 251 in the contested decision), which the applicant does not dispute.

144 Fourth, as regards 1997, four AC-Treuhand meetings were held in Zurich and Lugano (Switzerland) on 11 and 12 March and on 16 and 17 September (recital 257 in the contested decision). The applicant does not deny the existence of those meetings, nor its participation in them.

145 Fifth, the Commission adduced the content of a Reagens internal note entitled 'AC-Treuhand meeting in Zurich on 11 March 1997 with Mr [S.]', presenting the level of sales of tin stabilisers and deviations from the 'quotas' (recitals 258 and 259 in the contested decision).

146 Sixth, the Commission reproduced the content of the Baerlocher handwritten notes dated 12 March 1997 showing deviations from the geographic quota of each participating undertaking, including the applicant (recitals 260 and 261 in the contested decision).

147 Seventh, the Commission referred to the handwritten notes of Ciba stating '[n]o further price decreases!', drafted on the occasion of an AC-Treuhand meeting in Lugano on 17 September 1997, in which the applicant participated, which it does not dispute (recital 264 in the contested decision).

148 Eighth, the Commission relied on handwritten notes drawn up in relation to a meeting of 19 and 20 September 1997 indicating that 'AC-Treuhand (ex FIDES) works still' (recital 266 in the contested decision), which the applicant does not dispute.

149 Ninth, as regards 1998, eight AC-Treuhand meetings took place in Zurich and in Lugano on 10 and 11 February, 29 and 30 June, 14 and 15 September and 12 and 13 November (recital 270 in the contested decision). The applicant does not deny the existence of those meetings, nor its participation in them.

150 Tenth, the Commission relied on handwritten notes drawn up on the occasion of the AC-Treuhand meeting of 11 February 1998, in which the applicant participated, which it does not dispute, mentioning the minimum prices for certain customers and a freeze on customers (recital 272 in the contested decision).

151 Eleventh, according to the handwritten notes of CECA dated 5 November, there were bilateral contacts between that company and the applicant, as well as discussions with the other members of the cartel (recital 276 in the contested decision), which the applicant does not dispute.

152 Twelfth, the Commission relied on handwritten notes of Ciba dated 13 November 1998, drafted on the occasion of an AC-Treuhand meeting on that date, in which the applicant participated, as it does not dispute, and showing an agreement between the participants on new target prices and minimum prices for the European markets (recital 277 in the contested decision).

153 Thirteenth, as regards 1999, nine AC-Treuhand meetings took place in Zurich and in Lugano on 22 and 23 February, 26 and 27 April, 19 and 20 July, 23 September and 29 and 30 November (recital 299 in the contested decision). The applicant does not deny the existence of those meetings, nor its participation in them.

154 Fourteenth, the Commission adduced the content of an Akcros email showing the existence of commitments undertaken by the tin stabiliser suppliers in relation to prices (recital 300 in the contested decision).

155 Fifteenth, the Commission relied on handwritten notes drafted on the occasion of an AC-Treuhand meeting of 23 February 1999, in which the applicant participated, as it does not dispute, showing the participants' adherence to a price increase (recital 301 in the contested decision).

156 Sixteenth, the Commission relied on hand-written notes drafted on the occasion of an AC-Treuhand meeting of 27 April 1999, in which the applicant participated, as it does not dispute, showing an agreement on a price increase in the United Kingdom in order to offset a change in the exchange rate (recital 302 in the contested decision).

157 Seventeenth, according to a report drawn up by Chemtura for the month of August, dated 16 September 1999, the competitors of that company were following the increase of its prices, although one company had difficulties 'show[ing] price discipline' and that '[a]ctions [were] underway to stop this trend' (recital 303 in the contested decision).

158 Eighteenth, the Commission relied on an email from Chemtura dated 23 November 1999 indicating a price increase of 8% in 1999 in western Europe and that an increase of 3% was expected in the fourth quarter (recital 304 in the contested decision).

159 Nineteenth, as regards 2000, two AC-Treuhand meetings took place in Zurich on 20 and 21 March (recital 316 in the contested decision). The applicant does not deny the existence of those meetings, not its participation in them.

160 Twentieth, in recital 317 in the contested decision, the Commission relied on a memorandum dated 16 February 2000 drawn up by an Akcros employee for the attention of one of his superiors ('the Akcros memorandum'), the terms of which, not disputed by the applicant, must be reproduced in full below:

'I spoke with [m]arketing [m]anagers, who have between them substantial history in the EU stabiliser markets ... Today we and most of our EU competitors participate in industrial groups (one for ESBO and one for [tin stabilisers]) whose major function it is to consolidate market information in the form of tonnes sales each month ... This information is sent in to AC-Treuhand, Switzerland by each member company, the results of which are sent back out to the participants in total. ... No competitive information is seen. This, to me, seems quite above-board and useful. However, two to four times per year the member companies come together in Switzerland to discuss issues of common interest such as market outlooks, trends, activities of non-member companies and the like. While the actual meeting chaired by AC-Treuhand does not seem improper, it was indicated to me that while together, competitors do have conversations about price levels and customers. It is for this reason, I would recommend that we indicate to AC-Treuhand that we will no longer participate in the meetings, but will send in our sales information to take advantage of that service. The situation over two years before in these groups was altogether different. Then so-called "red papers" were generated, which contained minutes from the meetings detailing group decisions to raise prices and divide markets. Specific customers were discussed as well. These minutes were not distributed, but were kept in AC-Treuhand's files which were "safe" as Switzerland was not an EU member. In 1996 or 1997, this type of meeting no longer took place, presumably because of the increased pressure to not do business like this as laws and enforcement became more stringent. More than one member of the [tin] group has put pressure upon our representative to go back to this situation where price-fixing and market allocation was regularly done at the AC-Treuhand meetings. Baerlocher is applying the greatest amount of such pressure upon us and other members who are not in favour of such an arrangement. They talk specifically about "freezing" market shares, whereas if one member increases his share by taking an account, he would have to give back another account to balance things out again. This would be confirmed via monthly quota checks. We will not agree to participate in such improper activities, and this is one more reason why we should back off from these meetings ... In summary, there seemingly were improper meetings-discussions in which Akcros did participate. Although we probably do still have the occasional discussion that might be considered to be wrong, no longer do we participate in the formal meetings that are clearly inappropriate. I would recommend the following: (1) [n]otify AC-Treuhand that we will no longer attend meetings in Switzerland for the [t]in and [the ESBO-esters] groups, although we will continue to send in our sales data as before[;] (2) [h]ave ... put on awareness training that our Marketing Managers (and others) must attend so that they know clearly what actions they can and cannot take related to contact with competitors. Please let me know if you agree to these suggestions.'

161 Twenty-first, to support its interpretation of the Akcros memorandum, the Commission stated in recital 318 in the contested decision that Akzo had admitted that the Akcros memorandum had been preceded by the handwritten notes of the author of that memorandum ('the handwritten Akcros notes'), from which it is clear, as the applicant does not dispute, that there had been discussions which were 'not written up' concerning 'price levels' which 'need[ed] to go up', or be supported, and on 'some customer[s]', and, moreover, that the meetings had taken place in 'Switzerland - not EU member', as they 'can't get raided'.

162 Twenty-second, the Commission noted that, as a follow-up to the Akcros memorandum, the representative of Akcros stated, at a meeting on 21 March 2000 in Zurich, that it would no longer attend the AC-Treuhand meetings, 'while continuing its participation in the exchange of sales data' (see recital 319 in the contested decision), a matter the applicant does not dispute.

163 Twenty-third, the Commission noted that Akcros had confirmed by letter of 5 June 2000 addressed to Mr S., an AC-Treuhand employee, that it would no longer participate in AC-Treuhand meetings (see recital 321 in the contested decision), a matter the applicant does not dispute.

164 Twenty-fourth, the Commission referred to the statements made by Chemtura in the context of its cooperation with the Commission during the administrative procedure, referring to the continuation of the tin stabilisers cartel 'until 2000' (recital 420(a) in the contested decision).

165 Having regard to all that evidence, taken together, the Court considers that the Commission proved the applicant's participation in the second and third phases of the cartel, by adducing evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement in relation to tin stabilisers throughout those phases during the meetings in which the applicant participated and from which it did not distance itself, with the result that the Commission referred, in the contested decision, to sufficient evidence to support the firm conviction that the applicant participated in the infringement relating to tin stabilisers during the second and third phases of the cartel.

166 Taken as a whole, the various items of evidence referred to in paragraphs 141 to 164 above establish, to the requisite legal standard, that, during the second and third phases of the cartel, the participants in that cartel agreed on the fixing of prices and the allocation of customers by means of quotas, as well as the exchange of commercially sensitive information.

167 That evidence clearly demonstrates that the meetings which the applicant attended had as their object the fixing of prices and the allocation of customers by means of quotas, with particular reference to the AC-Treuhand meetings held between 1996 and 2000, the Akcros memorandum, mentioning discussions on prices and quotas, and the handwritten Akcros notes, also mentioning discussions on prices and customers.

168 It follows that the AC-Treuhand meetings during the second and third phases of the cartel, which the applicant admits having attended, did not take a different turn, as regards their anti-competitive object, from the previous meetings over several years, when the same undertakings and the same individuals were convened in the same context by Mr S.

169 Consequently, it must be held that the Commission referred, in the contested decision, to a body of evidence which, assessed as a whole, supports the firm conviction that the applicant participated in the infringement relating to tin stabilisers during the second and third phases of the cartel.

170 The foregoing considerations cannot be called into question by the applicant's arguments.

171 First, the applicant claims that the statements of the undertakings which made a request for application of the 2002 Leniency Notice differ as to the aim of the cartel relating to tin stabilisers and that, according to four of them, the infringement ended well before 1999, Baerlocher having changed its position during the administrative procedure.

172 That line of argument cannot succeed, since the Commission, in the contested decision, adduced sufficient evidence which it acquired independently of any request for application of the 2002 Leniency Notice, including that of Baerlocher, which the applicant does not dispute.

173 That is particularly the case as regards the evidence referred to in paragraphs 141 to 146, 148, 149, 151, 157, 159, 160, 162 and 163 of this judgment.

174 Second, the applicant cannot effectively claim that it is not mentioned in some of the items of evidence, when they relate to the AC-Treuhand meetings which it admits having attended.

175 Third, the applicant's argument in which it disputes the Commission's interpretation of the Akcros memorandum and claims that it is clear from that memorandum that the cartel came to an end well before 10 November 1999 as can allegedly be seen from Akcros' statements during the administrative procedure, is unpersuasive.

176 Only the Commission's interpretation of the Akcros memorandum can explain and justify that company's formal withdrawal from the cartel in March 2000, irrespective of the content of its statements concerning the end of the cartel made during the administrative procedure.

177 Fourth, the applicant cannot effectively claim, in support of its argument, that the Akcros handwritten notes are not dated and that they were probably written before February 2000.

178 Although the Commission indeed relied on those notes in order to support its interpretation of the Akcros memorandum, its interpretation of that memorandum is nevertheless well-founded, irrespective of the date on which the notes in question were written. In that respect, it must be observed that the fact that a document is unsigned or undated or is badly written does not wholly impugn its evidentiary value if its origin, probable date and content can be determined with sufficient certainty (see, to that effect, Case T-11-89 Shell v Commission [1992] ECR II-757, paragraph 86, and Joined Cases T-217-03 and T-245-03 FNCBV and Others v Commission [2006] ECR II-4987, paragraph 124).

179 Fifth, the applicant cannot effectively claim that the Commission did not establish anti-competitive effects as regards the third phase of the cartel and did not examine the changes in prices.

180 It must be pointed out that, as held in paragraphs 165 to 169 above, in the contested decision the Commission proved to the requisite legal standard that the AC-Treuhand meetings which the applicant admits having attended had, in any event, an anti-competitive object.

181 Sixth, the applicant does no more than assert that the Commission did not adduce any evidence of the continuation of the cartel during the second phase.

182 As can be seen from paragraphs 141 to 158 above, the Commission proved, to the requisite legal standard, the applicant's participation in the second phase of the cartel.

183 The first plea in law must therefore be rejected.

184 Since, in its second plea in law, alleging that the Commission's action was time-barred, the applicant claims, in essence, that the infringement came to an end in 'in 1996-1997' or, in the alternative, that it had ceased from January 1996 to March 1997 and, in any event, that the Commission failed to establish that it existed on 11 November 1999, the second plea in law must also be rejected, since, in the assessment of the first plea in law, it has been held that the Commission, in the contested decision, proved, to the requisite legal standard, the applicant's continuing unlawful conduct from 20 November 1992 to 21 March 2000.

185 Accordingly, the first and second pleas in law must be rejected.

The sixth, seventh and eight pleas in law, alleging infringement of Article 81 EC, by an incorrect application of the 2006 Guidelines, and infringement of the principles of equal treatment and proportionality

186 In its sixth, seventh and eighth pleas in law, the applicant claims that the Commission infringed Article 81 EC, by incorrectly applying the 2006 Guidelines, and infringed the principles of equal treatment and proportionality.

The eighth plea in law, alleging infringement of Article 81 EC by an incorrect application of the 2006 Guidelines

187 In its eighth plea in law, the applicant claims that the Commission infringed Article 81 EC by incorrectly applying paragraph 35 of the 2006 Guidelines.

188 In its response to a question thereon put to it by the Court, the applicant indicated that its eighth plea in law, set out in an abstract manner in paragraph 220 of the application, is supported by paragraphs 199 to 205 thereof.

189 In essence, it can be seen from those paragraphs of the application that, according to the applicant, the Commission brought about a distortion of competition, contrary to Article 81 EC, by granting another undertaking involved a reduction of its fine, pursuant to paragraph 35 of the 2006 Guidelines, even though the reduction was not justified by that undertaking's financial situation.

190 That line of argument, which is essentially intended to obtain the annulment of the contested decision, cannot succeed.

191 Even if the Commission had, in the contested decision, adopted an approach which conferred a competitive advantage on another member of the cartel, the applicant cannot rely on an unlawful act committed, as the case may be, in favour of another party (Case T-241-01 Scandinavian Airlines System v Commission [2005] ECR II-2917, paragraph 170). Likewise, it must be emphasised that the contested decision is specifically intended to remedy the distortion of competition caused, inter alia, by the applicant's unlawful conduct. Moreover, in the event that the applicant's arguments could be interpreted as seeking the variation of the contested decision, it must be added that those arguments do not prove that the fine imposed on it does not appropriately reflect the gravity and the duration of the infringement that it committed. Those arguments therefore do not justify a variation of the contested decision, especially since an unjustified reduction of the fine imposed on the applicant might constitute a distortion of competition as regards competitors which complied with Article 101 TFEU.

192 Accordingly, the eighth plea in law must be rejected.

The sixth plea in law, alleging infringement of the principle of equal treatment and of the 2006 Guidelines

193 In its sixth plea in law, the applicant claims that the Commission, in the contested decision, infringed the principles of equal treatment and the 2006 Guidelines, as regards the amounts of the fines which were imposed on the undertakings penalised.

194 In its response to a question thereon put to it by the Court, the applicant indicated that its sixth plea in law, set out in an abstract manner in paragraph 220 of the application, is supported by paragraphs 208 and 209 thereof.

195 It can be seen from those paragraphs that, according to the applicant, whereas undertakings which instigated the cartel received fines amounting to less than 1% of their 2008 turnover, the applicant - which demonstrated its limited participation, its competitiveness and its aggression in the market - was subject to a fine amounting to 7.44% of its 2008 turnover.

196 It is sufficient ground to reject that argument to note that the fact that the method of calculation of fines imposed by the Commission for infringements of the competition rules of the European Union is not necessarily based on the overall turnover figures of the undertakings concerned, and therefore allows disparities to appear between the undertakings as regards the relationship between their turnover figures and the amount of the fines imposed on them, is irrelevant to an assessment of whether the Commission infringed the principles of proportionality and equal treatment. The Commission is not required, when determining fines in accordance with the gravity and duration of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their relevant turnover (Case T-116-04 Wieland-Werke v Commission [2009] ECR II-1087, paragraph 86 and the case-law cited).

197 The applicant's arguments regarding the unlawful conduct of some of the undertakings involved, in comparison with its own alleged conduct, do not call into question that assessment for the purposes of the examination of the sixth plea in law.

198 Accordingly, it is appropriate to reject the sixth plea in law, as set out in paragraph 220 of the application and supported by the arguments put forward in paragraphs 208 and 209 thereof.

199 Nevertheless, notwithstanding the applicant's response to the question as to which paragraphs in its application supported its sixth plea in law and, moreover, the significant lack of clarity and the manifest lack of structure of the pleas in law, complaints and arguments in the application, it must be noted that the applicant sets out in the application other complaints and arguments in support of its sixth plea in law, alleging infringement of the principle of equal treatment and of the 2006 Guidelines.

200 Since the Commission was able to take a position on all of those complaints and arguments in its written pleadings and at the hearing, it is appropriate to examine them.

201 By its complaints and arguments relating to its sixth plea in law, the applicant claims that the Commission erred in setting the amount of the fine, since it did not take into account the existence of mitigating circumstances or the applicant's inability to pay the fine.

- The setting of the basic amount of the fine

202 First, as regards the setting of the basic amount of the fine, the applicant claims, in relation to the gravity of the infringement, that the Commission erred in taking into account, in order to determine the variable amount, based on the value of sales, a higher rate (20%) for tin stabilisers than for the ESBO-esters sector (19%), even though the Commission had found that the gravity of the two infringements was the same.

203 The applicant also alleges a failure to state reasons in that respect.

204 In addition, according to the applicant, the evidence gathered by the Commission shows that the infringement relating to the ESBO-esters sector was established on the basis of more extensive information than the infringement relating to tin stabilisers and that it lasted for a longer time.

205 Furthermore, since the cost price of tin stabilisers is much higher than that of ESBO-esters, the use of the same basic amounts for both products results in a much higher fine in respect of tin stabilisers. As the Commission did not take that factor into account, it penalised the tin stabiliser producers.

206 Second, as regards the duration of the infringement, the applicant claims that the Commission, to the applicant's detriment, accorded it unequal treatment in relation to the undertaking CECA, in respect of which the Commission took only the later period of the infringement into account.

207 Third, as regards both the gravity and the duration of the infringement, the applicant claims that the Commission, to the applicant's detriment, also treated it unequally in relation to Arkema, in respect of which the Commission took only the later period of the infringement into account as regards its implementation.

208 Fourth and last, as regards the entry fee, the applicant claims that, by setting an identical rate for all the undertakings concerned, the Commission infringed the principle of equal treatment, since, unlike the other undertakings, the applicant participated for a longer time in the 'less rigorous' period of the cartel.

209 The Commission disputes, at the outset, the applicant's complaint alleging a failure to state reasons, arguing that it gave adequate reasons for its application of the 2006 Guidelines with regard to the rates set for the variable amount and the entry fee.

210 The Commission adds, in its defence, that, in the light of the very serious nature of the two infringements, it initially set the rate of the variable amount at 16% of the value of sales for both infringements; this percentage was subsequently increased by 1% due to geographic scope and 1% for implementation of both infringements. According to the Commission, the only aspect in which the cartels were distinguished was with respect to market share, which was above 90% for tin stabilisers and just above 80% for the ESBO-esters sector. The Commission therefore took the view that the infringement in the tin stabilisers sector merited a further increase of 2% whereas the infringement in the ESBO-esters sector merited a further increase of 1%.

211 As to the substance, the Commission submits that it demonstrated that the infringement continued after 1996, and refers in that regard to the arguments which it put forward in connection with the applicant's first plea in law. It acknowledges that the intensity of the implementation of the cartel lessened from 1996, a fact which it took into account when setting the amount of the fine.

212 The Commission also disputes the argument relating to the higher cost of raw materials, stating that there is no valid reason to require that the calculation of the turnover of a relevant market should exclude certain production costs.

213 In that respect, first of all, the applicant's complaint alleging a failure to state reasons must be rejected in the present context, since, in the contested decision, the Commission devoted no less than 15 recitals to the determination of the variable amounts and the entry fee.

214 In summary, the Commission explained, in recitals 699 to 708 and 714 to 717 in the contested decision that, pursuant to the 2006 Guidelines, it had taken into account the nature of the infringements, the combined market share of the participants, the geographical scope of the infringements and whether they were implemented in order to determine the percentages of the value of sales to be taken into account for the purpose of setting the variable amounts and the entry fee.

215 As regards, in particular, the differences between the rates adopted for the variable amounts and the entry fee, the Commission justified those differences, in the contested decision, on the basis of the combined market share of the participants in the two infringements (recitals 704, 708, 709, 715 and 716 in the contested decision), and on the basis of a less rigorous implementation as regards certain undertakings (recitals 707, 708 and 715 in the contested decision).

216 It must be borne in mind that the duty to state reasons for the calculation of a fine imposed for infringement of the competition rules must be assessed in the light of Article 23(2) of Regulation No 1-2003, according to which '[i]n fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement', and that the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. Moreover, the 2006 Guidelines indicate what factors the Commission is to take into consideration in measuring the gravity and duration of an 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 purpose of calculating the amount of the fine (see, to that effect, Case T-48-02 Brouwerij Haacht v Commission [2005] ECR II-5259, paragraph 46, and the judgment of 28 April 2010 in Case T-448-05 Oxley Threads v Commission, not published in the ECR, paragraph 91).

217 As noted in paragraphs 213 to 215 above, the Commission referred to the reasons for its choice to adopt different rates for the variable amounts and the entry fees.

218 Accordingly, the complaint alleging infringement of the requirement to state reasons must be rejected as regards the rates adopted for the variable amounts and the entry fees.

219 As regards the substance, it cannot be claimed that the Commission infringed the 2006 Guidelines as regards the applicant in setting the basic amount of the fine, since the Commission correctly applied the methodology set out in those guidelines to determine the value of sales, the variable amount rate and the entry fee rate in respect of the applicant.

220 Even though the applicant does not dispute the rates applied to it for the variable amount (20%) and for the entry fee (20%) in isolation, it should be pointed out that the General Court has held that the difficulty in determining an exact percentage on the scale of 0 to 30% is reduced to a certain extent in the case of secret horizontal price-fixing and market-sharing agreements in which the proportion of the value of sales taken into account will generally be set 'at the higher end of the scale', with the result that, for the most harmful restrictions, the rate should, at the very least, be above 15% (Joined Cases T-208-08 and T-209-08 Gosselin Group and Stichting Administratiekantoor Portielje v Commission [2011] ECR II-3639, paragraph 131, and Case T-199-08 Ziegler v Commission [2011] ECR II-3507, paragraph 141).

221 The Court has also held that the Commission could set the rate solely on the basis of the inherently serious nature of the infringement. Where the Commission simply applies a rate equal or almost equal to the minimum rate laid down for the most serious restrictions, it is not necessary to take into account additional factors or circumstances (Gosselin Group and Stichting Administratiekantoor Portielje v Commission, paragraph 132, and Ziegler v Commission, paragraph 142).

222 It must also be noted that the Commission increased the variable amount in accordance with the 2006 Guidelines, irrespective of whether or not it erred in assessing the duration of the infringement, that issue having been examined in the first plea in law, which was rejected.

223 Accordingly, even on the assumption that the applicant invokes an infringement of the 2006 Guidelines, its argument cannot be accepted as regards the basic amount.

224 However, the applicant also alleges, in this context, that the Commission infringed the principle of equal treatment in setting the basic amount.

225 In that respect, first, it claims that the Commission could not apply different rates for the variable amounts in respect of the two infringements, namely 20% for the tin stabilisers and 19% for the ESBO-esters sector, since the only difference referred to between the two infringements was the combined market share, 90% and 80% respectively, notwithstanding the fact that the cost price of tin stabilisers was higher.

226 That argument cannot be accepted.

227 The Commission was entitled to take into consideration the difference between the combined market shares in setting the rates for the variable amount, since that difference was found by the Commission and was not disputed by the applicant (see, to that effect, Case T-377-06 Comap v Commission [2011] ECR II-1115l, paragraph 107).

228 It must be noted that the 2006 Guidelines provide that in order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of the scale of 0 to 30%, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.

229 It must also be noted that the Court has not excluded the possibility that the Commission may adopt different rates in respect of undertakings which participated in the same infringement (see, to that effect, Gosselin Group and Stichting Administratiekantoor Portielje v Commission, paragraphs 144 and 145; Joined Cases T-204-08 and T-212-08 Team Relocations and Others v Commission [2011] ECR II-3569, paragraphs 92 and 93; and Case T-348-08 Aragonesas Industrias y Energía v Commission [2011] ECR II-7583, paragraphs 265 to 267).

230 That is the case a fortiori where there are two infringements, as in the present case.

231 In any event, the Commission is free to apply, in that regard, a criterion which is suitable in the light of the circumstances of each particular case.

232 Although the Commission was fully entitled to take into consideration the combined market shares in respect of the two infringements, it was certainly not required to take into account the different cost prices of the products at issue, contrary to what is claimed by the applicant.

233 As the Commission rightly submits, the Court has held that there is no valid reason to require that the turnover of a relevant market be calculated excluding certain production costs, since there are in all industries costs inherent in the final product which the manufacturer cannot control but which nevertheless constitute an essential element of its business as a whole and which, therefore, cannot be excluded from its turnover when setting the basic amount of the fine (see the judgment of 19 May 2010 in Case T-25-05 KME Germany and Others v Commission, not published in the ECR, paragraph 97 and the case-law cited).

234 In addition, the Court has held that it is not necessary, in determining the rate of the basic amount, to take account of the specific characteristics of the infringement committed by each of the participants taken individually, since the factors listed in the 2006 Guidelines for the determination of that rate are all aimed at evaluating the infringement of the competition rules of the European Union, taken as a whole (see Aragonesas Industrias y Energía v Commission, paragraph 265).

235 It must therefore be held that the Commission did not infringe the principle of equal treatment in setting different rates for the variable amounts in respect of the two infringements.

236 As regards, second, the rates adopted for the variable amounts in respect of the various undertakings involved, including the applicant, the latter claims that, because of its competitive behaviour, the Commission should have applied to it the same rate as it applied to Arkema because of its non-participation in the infringement during a certain period.

237 This argument cannot be upheld.

238 It cannot seriously be disputed that competitive conduct is not the same as non-participation in the infringement.

239 Thus, irrespective of whether or not the allegedly competitive conduct of the applicant justifies a reduction of the amount of the fine on the basis of mitigating circumstances, it must be pointed out that the applicant's situation is clearly not comparable to that of Arkema.

240 In addition, the Court has held that it is not necessary, in determining the rate of the basic amount, to take account of the specific characteristics of the infringement committed by each of the participants taken individually, since the factors listed in the 2006 Guidelines for the determination of that rate are all aimed at evaluating the infringement of the competition rules of the European Union, taken as a whole (see Aragonesas Industrias y Energía v Commission, paragraph 266).

241 Accordingly, it must be held that the Commission did not infringe the principle of equal treatment in setting different rates for the variable amounts in respect of two undertakings, one being the applicant, on the basis of whether the infringement was implemented.

242 As regards, third, the rates adopted for the entry fees of the undertakings involved, the applicant claims that the Commission infringed the principle of equal treatment by adopting a single rate for the entry fee of all the undertakings involved, even though, contrary to the applicant, some of those undertakings participated for a longer time in the most 'rigorous' period of the infringement, namely before 1996.

243 That argument cannot be upheld either.

244 As the Court has held, as regards the taking into account of gravity for the purpose of fixing different rates for the respective basic amounts of the penalised undertakings, although the relative gravity of the participation in the infringement and the particular circumstances of the case must be taken into account, it remains open to the Commission, pursuant to the 2006 Guidelines, to take such factors into account when assessing the gravity of the infringement or adjusting the basic amount according to the mitigating and-or aggravating circumstances (see Gosselin Group and Stichting Administratiekantoor Portielje v Commission, paragraph 145; Team Relocations and Others v Commission, paragraphs 92 and 93; and Aragonesas Industrias y Energía v Commission, paragraphs 265 to 267).

245 In the present case, the Commission cannot be criticised for applying a single rate for the entry fee.

246 In addition, it must be borne in mind that, in the context of the 2006 Guidelines, the entry fee operates independently of the duration of the infringement, since the increase on the ground of duration is based solely on the variable amount and not on the entry fee.

247 It must also be borne in mind that the Court has held that it is not necessary, in determining the rate of the entry fee, to take account of the specific characteristics of the infringement committed by each of the participants taken individually, since the factors listed in the 2006 Guidelines for the determination of that rate are all aimed at evaluating the infringement of the competition rules of the European Union, taken as a whole (see Aragonesas Industrias y Energía v Commission, paragraph 265).

248 The applicant cannot therefore effectively claim that the uniformity of the rate adopted for the entry fees must reflect different durations of participation of the undertakings involved.

249 Consequently, it must be held that the Commission did not infringe the principle of equal treatment in setting the entry fees at a single rate for all the undertakings, including the applicant.

250 As regards, fourth and last, the duration of the infringements found in respect of the various undertakings, including the applicant, it must be held that the applicant's arguments are identical to those which it put forward in its first plea in law, which has been rejected.

251 Accordingly, the applicant's line of argument, in its sixth plea in law, concerning the basic amount of the fine, must be rejected.

- The existence of mitigating circumstances

252 First, according to the applicant, the Commission infringed the 2006 Guidelines in that it failed to take into account the applicant's competitive conduct on the market during the infringement period.

253 Second, the Commission also infringed the 2006 Guidelines in failing to take sufficient account of the duration of the administrative procedure, as a shorter duration would have had an impact on the amount of the fine, having regard to the applicant's 2004 turnover in the light of the 10% limit and to the application, in the present case, of the 2006 Guidelines and not the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; 'the 1998 Guidelines').

254 Third, the applicant claims that the Commission failed to take into account its limited participation in the infringement or its secondary role, while it did not increase the fines imposed on the undertakings which had played a central role.

255 Fourth and last, the applicant claims that the Commission did not take into account the existence of a cartel concerning the intermediate products used to produce tin stabilisers and that it had been compelled to join the cartel by another undertaking.

256 The Commission contends that it was correct not to take into account any mitigating circumstances as regards the applicant.

257 First, according to the Commission, the mere assertion that the applicant was competitive on the market does not suffice to show that its involvement in the infringement was 'substantially limited' and that it 'actually avoided applying it by adopting competitive conduct on the market', as required by paragraph 29 of the 2006 Guidelines, in accordance with the case-law.

258 Second, the Commission maintains, after pointing out, that it granted a reduction owing to the length of the procedure, that the applicant's assertions concerning the impact of the application of the 2006 Guidelines on the amount of the fine are speculative and that, in any event, the Commission may always adjust its policy by increasing the amount of the fines.

259 The Commission adds, as regards the application of the 10% limit if a decision had been adopted in 2004 or 2005, that the applicant's argument implies that decisions are taken within two years of the launching of inspections whereas that is in no way the case, and that, even if the investigation had not been delayed by the Akzo proceedings, a decision would not have been taken before 2006 at the earliest, so that, in view of the applicant's turnover in 2005, the 10% limit would have been respected.

260 Third, the Commission rejects the applicant's argument that its role in the commission of the infringement was secondary to that of other undertakings involved, stating that it did not consider that there were good grounds to find ringleaders in the present case. It adds that, even if there were aggravating circumstances for other undertakings, this would not have changed its assessment of the applicant's conduct and that, as a matter of principle, a participant in an infringement cannot allege a mitigating circumstance deriving from the conduct of the other participants in the infringement, and therefore the fact that other cartel members were involved in the cartel earlier, or perhaps more deeply, might have constituted an aggravating circumstance in relation to them but not a mitigating circumstance in favour of another participant.

261 Fourth and last, the Commission takes the view that the applicant does not put forward any evidence to prove that it was actually coerced into participating in the cartel and that, depending on the circumstances, it could have complained to the competent authorities, rather than participating in it.

262 In that respect, it is clear that, in its sixth plea in law, the applicant invokes an infringement of the 2006 Guidelines, in that the Commission failed to take certain mitigating circumstances into account.

263 First, as regards the argument alleging competitive conduct equivalent to non-implementation of the cartel, it must be observed that the Commission, in recital 726 in the contested decision, stated that a cartel is a joint enterprise in which each participant may play its own particular role, and that while internal conflicts and rivalries, or even cheating, may occur, that will not prevent the arrangement from constituting an agreement or concerted practice for the purposes of Article 81 EC where there is a single, common and continuing objective.

264 In the same context, the Commission held that the applicant had not provided evidence that it had avoided implementing the agreements by adopting competitive conduct or by clearly and substantially acting in breach of the obligations relating to the implementation of the cartel to the point of disrupting its operation.

265 In recital 727 in the contested decision, the Commission added that the applicant had not adduced evidence demonstrating that it had publicly distanced itself from all the competitors participating in the cartel with regard to all its elements, but rather, on the contrary, it was proven that the applicant had continued to meet the other participants in the cartel and to discuss price increases, prices and sales volumes until the end of the cartel.

266 Next, it must be noted that it follows from the case-law that the fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself in the market in the manner agreed with its competitors is not necessarily something which has to be taken into account, as a mitigating circumstance, when the amount of the fine to be imposed is determined (see 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 490 and the case-law cited).

267 An undertaking which, despite colluding with its competitors, follows a more or less independent policy in the market may simply be trying to exploit the cartel for its own benefit and an undertaking which does not distance itself from the results of a meeting in which it was present in principle retains full responsibility for the fact of its participation in the cartel. Therefore, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, 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 cartel in question. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful agreement and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition (see Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 491 and the case-law cited).

268 An undertaking participating in a cartel can be given the benefit of a mitigating circumstance only where the undertaking concerned has produced evidence that its participation in the infringement was substantially reduced and has demonstrated consequently that, during the period in which it was a party to the infringing agreements it actually avoided applying them by adopting competitive conduct in the market (see, to that effect, the judgment of 12 December 2012 in Case T-400-09 Ecka Granulate and non ferrum Metallpulver v Commission, not published in the ECR, paragraph 86 and the case-law cited).

269 The applicant has not shown that those conditions were met in the present case.

270 While the applicant admits that it participated in the meetings at issue, it simply claims that it adopted competitive conduct on the market, but in no way claims to have clearly and substantially opposed the implementation of the cartel in issue.

271 Consequently, it must be held that the Commission was not required to acknowledge a mitigating circumstance relating to the applicant's competitive conduct and, moreover, in the exercise of the Court's unlimited jurisdiction, that such conduct, particularly since it was not proved, does not in any event justify a reduction of the amount of the fine imposed on the applicant in the present case.

272 Secondly, the applicant claims, in essence, that the length of the investigation should constitute a mitigating circumstance, since, if a decision had been adopted in 2004 or in 2005, its relevant turnover would have been lower for the purpose of the 10% limit and the 1998 Guidelines would have been applied, with the result that the fine imposed on it would have been lower.

273 In that respect, it must be held that, by its complaints, the applicant requests the Court to reduce, in view of the length of the procedure before the Commission, the amount of the fine imposed on it, and puts forward two arguments in that respect to support its claim that if the decision had been adopted earlier, the fine imposed on it would have been lower.

274 Its first argument concerns its turnover before 2005 for the purpose of the 10% limit.

275 That argument cannot succeed.

276 That argument implies that, in the contested decision, the Commission should have examined another fiscal year for the purpose of the 10% limit, namely the 2003 or 2004 fiscal year, and not the year chosen in the contested decision, which would be contrary to Article 23(2) of Regulation No 1-2003.

277 The applicant's second argument concerns the application of the 2006 Guidelines. It is indeed clear that those guidelines had a significant effect on the calculation of the amount of fines, in particular for long-term infringements, such as that in the present case.

278 Nevertheless, the applicant does not support its argument with projected calculations in any way, as it expressly acknowledges in paragraph 183 of the application, with the result that its argument is entirely speculative. In any event, undertakings which participate in a cartel must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. That is true not only where the Commission raises the level of the amount of fines when imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the 2006 Guidelines (see, to that effect, Joined Cases C-189-02 P, C-202-02 P, C-205-02 P to C-208-02 P and C-213-02 P Dansk Rørindustri and Others v Commission [2005] ECR II-5425, paragraphs 229 and 230). Consequently, the replacement of the 1998 Guidelines with a new method of calculating fines, contained in the 2006 Guidelines, even if this new method had the effect of increasing the level of the fines imposed, was reasonably foreseeable for the undertakings participating in the cartel and is not unlawful in itself (see, to that effect, Dansk Rørindustri and Others v Commission, paragraphs 231 and 232), particularly - and in any event - since the introduction of the 2006 Guidelines did not change the maximum level of fines provided for in Article 23(2) of Regulation No 1-2003.

279 That argument must therefore also be rejected in the context of the sixth plea in law.

280 Third, the applicant claims, in essence, that it played a secondary role in the infringement in comparison with other undertakings involved, whose fines were not increased on the basis of aggravating circumstances.

281 In that respect, and irrespective of whether the Commission erred in not finding that there were aggravating circumstances in relation to the other undertakings referred to by the applicant, that complaint must also be rejected.

282 As regards the applicant's conduct viewed in isolation, its argument is essentially the same as that which it puts forward concerning its competitive conduct, which has been examined and rejected in paragraphs 263 to 271 above.

283 As regards the applicant's conduct viewed in comparison with that of the other undertakings which, according to the applicant, were the ringleaders, its argument must also be rejected, even if that premise were true.

284 The Court considers that, as a matter of principle, a participant in an infringement cannot allege a mitigating circumstance deriving from the conduct of the other participants in the infringement (Case T-62-02 Union Pigments v Commission [2005] ECR II-5057, paragraph 125).

285 In the present case, the fact that the other cartel members became involved in the cartel earlier, or more deeply, might well constitute an aggravating circumstance in relation to them but not a mitigating circumstance in favour of the applicant (see, to that effect, Union Pigments v Commission, paragraph 125).

286 It must therefore be held that the Commission was not required to acknowledge a mitigating circumstance relating to the applicant's alleged secondary role and, moreover, in the exercise of the Court's unlimited jurisdiction, that such conduct, even if it were proved, does not justify a reduction in the amount of the fine imposed on it.

287 Fourth and last, the applicant claims that the Commission should have taken into account a mitigating circumstance concerning the existence of a cartel in another upstream market and of coercive measures that compelled the applicant to become a member of the cartel in the market at issue in the present case.

288 In that respect, it must be pointed out that the applicant's argument is not well supported and, in any event, is not convincing.

289 As regards the existence of a cartel in another upstream market, the applicant has in no way established that the Commission was required to take it into consideration.

290 As regards, moreover, the coercion to which the applicant was allegedly subject, it is true that the applicant mentions, in paragraphs 32 to 33 of the application, constraints to which it was subject, but it does so without linking its argument to the taking into consideration of a mitigating circumstance in that respect, and acknowledges, in paragraph 34, that, as part of its growth strategy for Europe, it agreed to join the tin stabilisers cartel in November 1992.

291 It must therefore be held, at the least, that the applicant in no way supports its claim by confining itself to asserting, in a peremptory manner in paragraph 189 of the application, that it demonstrated that the file contained evidence to that effect, and it does not expand upon that paragraph in the reply.

292 That complaint must therefore be rejected.

293 Accordingly, the applicant's arguments concerning the existence of mitigating circumstances must be rejected.

- The applicant's ability to pay

294 By arguments relating to the sixth plea in law, the applicant claims that, when assessing its ability to pay following the application which it made under paragraph 35 of the 2006 Guidelines, the Commission did not take into account the amount of the fine which it finally imposed and incorrectly evaluated the evidence submitted as to the applicant's financial situation.

295 According to the Commission, its analysis of the applicant's ability to pay showed that it was a financially solid, solvent and indeed profitable undertaking so that there was no justification for a reduction of its fine under paragraph 35 of the 2006 Guidelines; in any event, the Commission has some discretion in that regard.

296 In its defence, the Commission maintains that it took fully into account the impact of the amount of the fine on the applicant's financial situation, having regard to its financial solidity, profitability, solvency, liquidity and borrowing facility.

297 The Commission adds that, if the applicant really was in serious financial difficulties, one would have expected it to be able at least to give evidence of this to the Court in the context of the application for interim measures. It failed to do so, and its arguments in that regard are therefore wholly unfounded.

298 In that respect, it is clear that, in its sixth plea in law, the applicant claims that the Commission infringed the 2006 Guidelines in that it did not take into account the applicant's inability to pay.

299 In that respect, first, it must be noted that paragraph 35 of the 2006 Guidelines provides that, in exceptional cases, the Commission may, upon request, take account of an undertaking's inability to pay in a specific social and economic context, but that it will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation; a reduction can be granted solely on the basis of objective evidence that imposition of the fine under the conditions set out in the decision would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.

300 It is clear from those provisions that the Commission is in no way obliged to reduce a fine on that basis, not least if the requisite conditions are not met.

301 It must also be borne in mind that the Court has recently held that the reduction of a fine pursuant to paragraph 35 of the 2006 Guidelines is subject to three cumulative conditions, namely, the submission of a request during the administrative procedure, the existence of a specific social and economic context and the inability to pay of the undertaking, the latter having to provide objective evidence showing that the imposition of the fine would irretrievably jeopardise its economic viability and cause its assets to lose all their value (Team Relocations and Others v Commission, paragraph 171, and Ziegler v Commission, paragraph 165), which does not necessarily coincide with the initiation of winding-up proceedings where recoverable assets exist.

302 It must be pointed out that the applicant has not come close to establishing that those conditions were met before the Commission during the administrative procedure, in the application or the reply in the present action or in the application for interim measures before the President of the Court.

303 In that respect, it must be pointed out that the President of the Court noted, in rejecting the applicant's request for interim measures, that the latter had not made use of the possibility, offered by the Commission, of providing a financial guarantee (order in Reagens v Commission, paragraph 36).

304 Although it provides no basis for a finding that the Commission did not infringe paragraph 35 of the 2006 Guidelines, it must be noted that the applicant preferred to make full and immediate - albeit provisional - payment, which does not indicate a fragile financial situation.

305 In any event, in view of the applicant's financial situation - as can be seen from the documents in the file, in particular from the Commission's defence, which the applicant does not contest in the reply, and as found by the President of the Court in his order in Reagens v Commission, as well as from the information provided by the applicant in response to a question thereon put to it by the Court - it must be held, in the exercise of the Court's unlimited jurisdiction, that, irrespective of the conditions laid down in paragraph 35 of the 2006 Guidelines, it is not necessary to reduce the amount of the fine on that basis.

306 Consequently, the applicant's argument relating to its inability to pay and, accordingly, the sixth plea in law in its entirety must be rejected.

The seventh plea in law, alleging an infringement of the principle of proportionality

307 In its seventh plea in law, the applicant claims that the Commission, in the contested decision, infringed the principle of proportionality as regards the amount of the fine imposed on it.

308 In its reply to a question thereon put to it by the Court, the applicant indicated that its seventh plea in law, set out in an abstract manner in paragraph 220 of the application, is supported by paragraphs 206 and 207 thereof.

309 It can be seen from those paragraphs that, according to the applicant, the aims of deterrence and enforcement pursued by the imposition of a fine for infringement of the competition rules of the European Union did not require that a fine amounting to 7.44% of its 2008 turnover be imposed on it while other undertakings involved received fines amounting to less than 1% of their turnover.

310 It is sufficient ground to reject that argument to refer to the considerations set out in paragraph 196 of this judgment.

311 For the rest, and in any event, it must be held that the amount of the fine imposed on the applicant in the contested decision is appropriate having regard to all the circumstances of the present case, particularly as regards the gravity and the duration of the infringement, as well as the applicant's financial situation, as can be seen from the information which it produced in response to a question thereon put to it by the Court.

312 The seventh plea in law must therefore be rejected and, as a result, the action must be dismissed in its entirety.

Costs

313 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.

314 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Commission in accordance with the latter's pleadings.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1. Dismisses the action.

2. Orders Reagens SpA to pay the costs.