GC, 4th chamber, July 15, 2015, No T-47/10

THE GENERAL COURT (Fourth 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/38.589 - Heat Stabilisers; 'the contested decision').

2 The dispute involves various entities.

I - Entities involved

A - Akzo Group

3 Following its acquisition of Nobel Industrier in 1993, Akzo NV became Akzo Nobel NV ('Akzo Nobel'), the ultimate parent company of a group of companies established and operating throughout the world (together 'the Akzo group').

4 Until 19 March 1993 the production and sale of heat stabilisers of the Akzo group were carried out by subsidiaries indirectly wholly-owned, on the one hand, by Akzo, which became Akzo Nobel, through Akzo Chemicals International BV, which became Akzo Nobel Chemicals International BV, and, on the other hand, by Akzo Chemie GmbH and Akzo Chemicals GmbH, which together became Akzo Nobel Chemicals GmbH ('Akzo GmbH'), with respect to tin stabilisers, and by Akzo Chemie Nederland BV and Akzo Chemicals Nederland BV, which became Akzo Nobel Chemicals BV ('Akzo BV'), with respect to the ESBO/esters sector.

B - Akcros partnership

5 On 19 March 1993 Akzo Chemicals International, a wholly-owned subsidiary first of Akzo, and then of Akzo Nobel, entered into a framework agreement with Harrisons Chemicals (UK) Ltd, a wholly-owned subsidiary of Harrisons & Crosfield plc, which became Elementis plc, to combine the activities of their respective groups for the development, production and marketing of certain chemical products, including heat stabilisers ('the 1993 framework agreement').

6 The 1993 framework agreement provided for the transfer of the assets and personnel in the sector concerned to four partnerships in the United Kingdom, Germany, the Netherlands and the United States of America, and provided that the capital of each partnership and of the existing companies in France (Tinstab SA), Italy (Harcros Chemicals Italia SpA), Spain (Harcros Chemicals Iberia SA) and Denmark (Lankro Sandia ApS) was to be held, in equal shares, by the Akzo Chemicals International group, namely the Akzo group, and the Harrisons Chemicals (UK) group.

7 On 24 March 1993, Akzo Chemicals International and Harrisons Chemicals (UK) notified the 1993 framework agreement to the European Commission, pursuant to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1), as rectified.

8 By decision of 29 April 1993, the Commission declared the 1993 framework agreement compatible with the common market ('the 1993 merger decision').

9 Pursuant to the 1993 framework agreement, the Akcros Chemicals partnership ('the Akcros partnership') was formed in the United Kingdom on 28 June 1993 (see recital 536 of the contested decision).

10 When it was formed, the Akcros partnership was held, in equal shares by Pure Chemicals Ltd, a company initially wholly-owned by Akzo, which became Akzo Nobel, and by various companies, including, ultimately, Elementis UK Ltd and Elementis Services Ltd, which were part of a group whose ultimate parent company was Elementis plc (together 'Elementis').

C - Akcros joint venture

11 On 15 July 1998, Akzo Nobel entered into an agreement with Elementis to acquire, through its wholly-owned subsidiary Pure Chemicals, Elementis's shareholding in the Akcros partnership, which became Akcros Chemical Ltd ('Akcros'), and which was thus wholly-owned, indirectly, by Akzo Nobel NV as from 2 October 1998.

12 On 15 March 2007, Akzo Nobel sold Akcros to GIL Investments.

II - Administrative procedure which led to the adoption of the contested decision

A - Initiation of the Commission's investigation

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

14 On 30 January 2003, the Commission adopted Decision C(2003) 85/4 on the basis of 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), ordering Akzo Nobel Chemicals Ltd, Akcros Chemicals Ltd and their respective subsidiaries to submit to an investigation aimed at seeking evidence of possible anticompetitive practices ('the decision of 30 January 2003').

15 On 10 February 2003, the Commission adopted Decision C(2003) 559/4, also on the basis of Article 14(3) of Regulation No 17, amending the decision of 30 January 2003 (together 'the inspection decisions').

16 On 12 and 13 February 2003, on-the-spot investigations were carried out, on the basis of the inspection decisions, at the premises of Akzo Nobel Chemicals and Akcros in Eccles, Manchester (United Kingdom). In the course of that investigation, the Commission officials took copies of a large number of documents. During those operations, the representatives from Akzo Nobel Chemicals and Akcros indicated to the Commission officials that a number of documents were likely to be covered by legal professional privilege ('the documents at issue').

17 While the documents at issue were being examined a disagreement arose as regards five documents, which were the subject of two kinds of treatment. The Commission officials did not reach a definitive on-the-spot conclusion as to the protection that might have to be afforded to two documents. Therefore, they took copies of those documents and placed them in a sealed envelope, which they took away with them at the end of their investigation. As regards the three other documents at issue, the Commission official responsible for the investigation took the view that they were not covered by legal professional privilege and therefore took copies of them and added them to the file without placing them in a separate sealed envelope.

18 That disagreement led to significant judicial proceedings ('the Akzo judicial proceedings').

B - The Akzo judicial proceedings

19 By application lodged at the Court Registry on 11 April 2003, Akzo Nobel Chemicals and Akcros brought an action seeking, in essence, annulment of Decision C(2003) 559/4 of 10 February 2003 and, in so far as necessary, the decision of 30 January 2003 requiring those companies and their respective subsidiaries to submit to the investigation in question (Akzo Nobel Chemicals and Akcros Chemicals v Commission, T-125/03).

20 On 17 April 2003, Akzo Nobel Chemicals and Akcros lodged an application for interim measures, inter alia, seeking suspension of the operation of the inspection decisions (Akzo Nobel Chemicals and Akcros Chemicals v Commission, T-125/03 R).

21 On 8 May 2003, the Commission adopted Decision C(2003) 1533 final on the basis of Article 14(3) of Regulation No 17 ('the decision of 8 May 2003'), rejecting the applicants' request to preserve the confidentiality of the documents at issue.

22 In the decision of 8 May 2003, the Commission rejected the request of Akzo Nobel Chemicals and Akcros that the documents at issue be returned to them and gave notice of its intention to open the sealed envelope, while stating that it would not do so before the period for bringing an action against that decision had expired.

23 By application lodged at the Court Registry on 4 July 2003, Akzo Nobel Chemicals and Akcros brought an action for annulment of the decision of 8 May 2003 (Akzo Nobel Chemicals and Akcros Chemicals v Commission, T-253/03).

24 In addition, they lodged an application for interim measures seeking, inter alia, suspension of the operation of the decision of 8 May 2003 (Akzo Nobel Chemicals and Akcros Chemicals v Commission, T-253/03 R).

25 By order of the President of the Court of 30 October 2003, the Court dismissed the application in T-125/03 R relating to the investigation decisions but granted in part the application in T-253/03 R relating to the protection of confidentiality of the documents at issue (order of 30 October 2003 in Akzo Nobel Chemicals and Akcros Chemicals v Commission, T-125/03 R and T-253/03 R, ECR, EU:C:2003:287).

26 That order was set aside by order of 27 September 2004 in Commission v Akzo and Akcros (C-7/04 P(R), ECR, EU:C:2004:566).

27 By letter of 15 October 2004, the Court Registry returned the sealed envelope containing the two documents at issue to the Commission (recitals 84 to 90 of the contested decision).

28 By judgment of the Court of 17 September 2007, the action brought in Case T-125/03 against the investigation decisions was rejected as inadmissible. The action brought in Case T-253/03, concerning the documents at issue, was itself rejected as unfounded, on the basis that, in essence, the Commission had not erred in deciding that none of the documents at issue fell within the scope of legal professional privilege (judgment of 17 September 2007 in Akzo Nobel Chemicals and Akcros Chemicals v Commission, T-125/03 and T-253/03, ECR, EU:T:2007:287, paragraphs 57 and 184).

29 By judgment of 14 September 2010 in Akzo Nobel Chemicals and Akcros Chemicals v Commission (C-550/07 P, ECR, EU:C:2012:512), the Court of Justice dismissed the appeal brought against the judgment in Akzo Nobel Chemicals and Akcros Chemicals v Commission, cited in paragraph 28 above (EU:T:2007:287).

C - The closure of the Commission's investigation

30 On 8 October 2007 and on several occasions in 2008, the Commission sent the undertakings concerned requests for information 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 of the contested decision).

31 On 17 March 2009, the Commission adopted a statement of objections which was sent to several companies, including Akzo Nobel, Akzo GmbH, Akzo BV and Akcros, namely the applicants, on 18 March 2009 (recital 95 of the contested decision).

32 On 11 November 2009, the Commission adopted the contested decision.

III - Contested decision

33 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 sets of anti-competitive agreements and concerted practices covering the EEA and relating to, first, the tin stabilisers sector and, second, the epoxidised soybean oil and esters sector ('the ESBO/esters sector').

34 In the contested decision, it was found that there were two infringements relating to two categories of heat stabilisers, which are products added to polyvinyl chloride (PVC) products in order to improve their thermal resistance (recital 3 of the contested decision).

35 According to Article 1 of the contested decision, each of those infringements consisted of price fixing, allocation of markets through sales quotas, allocation of customers and exchange of commercially sensitive information, in particular on customers, production and sales.

36 The contested decision states that the undertakings concerned participated in those infringements during various periods between 24 February 1987 and 21 March 2000, with respect to tin stabilisers, and between 11 September 1991 and 26 September 2000, with respect to the ESBO/esters sector.

37 The contested decision was addressed, with respect to each infringement, to 20 companies, which either participated directly in the infringements involved or were liable as parent companies (recital 510 of the contested decision).

A - Attribution of the infringements in the contested decision

38 Article 1 of the contested decision holds the applicants liable for their participation in the infringement relating to tin stabilisers from 24 February 1987 until 21 March 2000 in the case of Akzo Nobel, 24 February 1987 until 28 June 1993 in the case of Akzo GmbH and 28 June 1993 until 21 March 2000 in the case of Akcros. Similarly, Article 1 of the contested decision holds the applicants liable for their participation in the infringement relating to the ESBO/esters sector from 11 September 1991 until 22 March 2000 in the case of Akzo Nobel, 11 September 1991 until 28 June 1993 in the case of Akzo BV and 28 June 1993 until 22 March 2000 in the case of Akcros.

39 Accordingly, in the contested decision, Akzo Nobel, as the ultimate parent company of a group of companies some of which participated directly in the infringements, was held liable for the entire infringement period, that is to say from 24 February 1987 until 22 March 2000.

40 For the period before 28 June 1993 ('the first infringement period'), the Commission considered that some companies held indirectly by Akzo, which became Akzo Nobel, had participated directly in the infringement, namely Akzo GmbH, for the infringement relating to tin stabilisers, and Akzo BV, for the infringement relating to ESBO/esters (recitals 512 to 519 of the contested decision).

41 For the period from 28 June 1993 until 2 October 1998 ('the second infringement period'), the Commission considered that the infringements had been committed by the Akcros partnership (recitals 563 and 564 of the contested decision).

42 For the period from 2 October 1998 until 21 March 2000, for tin stabilisers, and from 2 October 1998 until 22 March 2000, for the ESBO/esters sector ('the third infringement period'), the Commission considered that the infringements had been committed by Akcros (recitals 582 to 587 of the contested decision).

43 As regards its power to impose fines on the applicants for those infringements, the Commission rejected, in the contested decision, the applicants' arguments that it could and should have continued its investigation while the proceedings initiated before the Court in the Akzo judicial proceedings were ongoing. The Commission considered that the 10-year limitation period on its right to impose fines was suspended, erga omnes, by the Akzo judicial proceedings (see recitals 672 to 682 of the contested decision).

B - The attribution of the fines in the contested decision

44 Article 2 of the contested decision reads as follows:

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

(1) Elementis plc, Elementis Holdings Limited, Elementis Services Limited, [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 875 200;

(2) Elementis Holdings Limited, Elementis Services Limited, [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 2 601 500;

(3) Elementis Holdings Limited, Elementis Services Limited and [Akzo Nobel] are jointly and severally liable for: EUR 4 546 300;

(4) [Akzo Nobel], [Akzo GmbH] and [Akcros] are jointly and severally liable for: EUR 1 580 000;

(5) [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 944 300;

(6) [Akzo Nobel] and [Akzo GmbH] are jointly and severally liable for: EUR 9 820 000;

(7) [Akzo Nobel] is liable for: EUR 1 432 700;

...

For the infringement(s) in the [ESBO/esters sector], the following fines are imposed:

(18) Elementis plc, Elementis Holdings Limited, Elementis Services Limited, [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 1 115 200;

(19) Elementis Holdings Limited, Elementis Services Limited, [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 2 011 103;

(20) Elementis Holdings Limited, Elementis Services Limited and [Akzo Nobel] are jointly and severally liable for: EUR 7 116 697;

(21) [Akzo Nobel], [Akzo BV] and [Akcros] are jointly and severally liable for: EUR 2 033 000;

(22) [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 841 697;

(23) [Akzo Nobel] and [Akzo BV] are jointly and severally [liable] for: EUR 3 467 000;

(24) [Akzo Nobel] is liable for: EUR 2 215 303 ...'

45 In setting the amount of the fines, the Commission applied the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; 'the 2006 Guidelines').

IV - The amendment of the contested decision

46 By decision of the Commission of 30 June 2011, the decision was amended to the extent that it was addressed to Akzo Nobel and Akcros ('the amending decision').

47 In recital 1 of the amending decision the Commission recalled that, in the contested decision, it had imposed fines on Akzo Nobel and Akcros 'jointly and severally' with Elementis plc, Elementis Holdings Limited and Elementis Services Limited.

48 In recital 2 of the amending decision the Commission stated that, in the light of the judgment of 29 March 2011 in ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others (C-201/09 P and C-216/09 P, ECR, EU:C:2011:190), it had decided to repeal the amending decision to the extent that it was addressed to Elementis and Elementis Holdings Limited, among others.

49 Accordingly, the Commission amended the contested decision to the extent that it was addressed to Akzo Nobel and Akcros, in so far as they had been held jointly and severally liable, with Elementis, for the fines imposed.

50 Under Article 1 of the amending decision:

'[The contested decision] is amended as follows:

Article 2 No 4 is replaced by the following:

(1) [Akzo Nobel], [Akzo GmbH] and [Akcros] are jointly and severally liable for: EUR 1 580 000;

Article 2 No 1, 2 and 5, are replaced by the following:

(2) [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 4 421 000;

Article 2 No 6 is replaced by the following:

(3) [Akzo Nobel] and [Akzo GmbH] are jointly and severally liable for: EUR 9 820 000;

Article 2, No 3 and 7 are replaced by the following:

(4) [Akzo NV] is liable for: EUR 5 979 000;

Article 2 No 21 is replaced by the following:

(18) [Akzo Nobel], [Akzo BV] and [Akcros] are jointly and severally liable for: EUR 2 033 000;

Article 2 No 18, 19 and 22 is replaced by the following:

(19) [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 3 968 000;

Article 2 No 23 is replaced by the following:

(20) [Akzo Nobel] and [Akzo BV] are jointly and severally liable for: EUR 3 467 000;

Article 2 No 20 and 24 is replaced by the following:

(21) [Akzo Nobel] is liable for: EUR 9 332 000 ...'

Procedure and forms of order sought by the parties

51 By application lodged at the Court Registry on 27 January 2010, the applicants brought an action against the contested decision.

52 In a letter of 29 July 2011 to the Court Registry, the Commission expressed its wish to draw the Court's attention to the implications for the present case of the judgment in ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 48 above, (EU:C:2011:190), which the Court duly noted.

53 In that letter, the Commission, first, withdrew the arguments which it had put forward in the alternative, relating to the suspension of the proceedings with respect to Akzo Nobel, Akzo GmbH and Akzo BV, set out in paragraphs 55 to 65 of its defence and paragraphs 27 to 33 of its rejoinder.

54 Second, the Commission stated, for the avoidance of doubt, that it maintained its argument based on the suspension of the proceedings in relation to Akcros and its response in its entirety to the plea alleging breach of the rules on limitation in respect of all the other applicants.

55 By fax from the Court Registry of 9 August 2011, the applicants were invited to submit their observations on the Commission's letter of 29 July 2011.

56 By fax of the same day, the applicants requested that the Court extend the period prescribed for submitting their observations on the Commission's letter of 29 July 2011.

57 That request was granted.

58 By letter lodged at the Court Registry on 16 September 2011, the applicants submitted observations on the Commission's letter of 29 July 2011.

59 In those observations, the applicants maintained, first of all, their plea alleging breach of the rules on limitation.

60 Second, they rejected the Commission's argument based on the suspension of the limitation period with respect to Akcros.

61 On 13 November 2012, the applicants were requested to clarify, first, if they maintained their request for production of documents set out in paragraph 43 of the application and, second, whether, in the plea where they alleged errors in the calculation of fines, in paragraphs 127 to 130 of the application, they were referring to all periods of the infringement or part thereof.

62 On 13 November 2012, the Commission was requested to specify how, when calculating the fines, it arrived at the amounts appearing in the first two rows in light type of the tables set out in recitals 717 and 773 of the first contested decision and of those appearing in points 1 to 7 and 18 to 24 of Article 2 of that decision.

63 By fax of 23 November 2012, the applicants requested that the Court extend the period prescribed for responding to the Court's questions of 13 November 2012.

64 That request was granted.

65 By document lodged at the Registry on 12 December 2012, the applicants replied to the Court's questions of 13 November 2012.

66 By document lodged at the Registry on the same day, the Commission replied to the Court's question of 13 November 2012.

67 A copy of the Commission's reply was sent to the applicants on 20 December 2012.

68 A copy of the applicants' reply was sent to the Commission on the same day.

69 By letter lodged at the Court Registry on 14 February 2013, the applicants requested that the Court allow witnesses to be examined.

70 On 4 March 2013, the Court invited the Commission to submit its observations on that request.

71 The Commission submitted its observations within the prescribed period, namely 18 March 2013.

72 By letter lodged at the Court Registry on 20 March 2013, the applicants stated that their letter of 14 February 2013 was not an application made pursuant to Article 68 of the Rules of Procedure of the General Court of 2 May 1991.

73 The Court decided to place that letter in the case file.

74 By request of the Court of 25 July 2013, the parties were invited to submit their observations on a possible stay of the proceedings, pursuant to Article 77(d) of the Rules of Procedure of 2 May 1991, pending delivery of the final judgment of the Court of Justice in Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission, C-231/11 P to C-233/11 P (OJ 2011 C 204, p. 17).

75 By document lodged at the Registry on 6 August 2013, the Commission replied to that request by stating that it had no objection to that stay.

76 By document lodged at the Registry on 21 August 2013, the applicants replied to that request by stating that they had no objection to that stay.

77 A copy of the Commission's reply was sent to the applicants on 22 August 2013.

78 A copy of the applicants' reply was sent to the Commission on the same day.

79 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was accordingly allocated on 3 October 2013.

80 By order of the President of the Fourth Chamber of the Court of 10 October 2013, it was decided, pursuant to Article 77(d) of the Rules of Procedure of 2 May 1991, to stay the proceedings pending delivery of the final judgment of the Court of Justice in Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission C-231/11 P to C-233/11 P (OJ 2011 C 204, p. 17).

81 On 10 April 2014, the Court of Justice gave judgment in Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission (C-231/11 P to C-233/11 P, ECR, EU:C:2014:256; 'the judgment in Siemens').

82 On the same day, the Court of Justice gave judgment in Areva v Commission (C-247/11 P and C-253/11 P, ECR, EU:C:2014:257; 'the judgment in Areva').

83 By way of measures of organisation of procedure the Court, on 15 April 2014, invited the parties to submit their written observations on the implications for the present case of the judgment in Siemens, cited in paragraph 81 above (EU:C:2014:256).

84 By fax sent to the Court Registry on 25 April 2014, the applicants requested that the Court extend the period prescribed for responding to the Court's question of 15 April 2014.

85 That request was granted.

86 On 5 May 2014, the Commission submitted its written observations on the implications for the present case of the judgment in Siemens, cited in paragraph 81 above (EU:C:2014:256).

87 On 15 May 2014, the applicants submitted their written observations on the implications for the present case of the judgment in Siemens, cited in paragraph 81 above (EU:C:2014:256).

88 A copy of the Commission's observations on the implications for the present case of the judgment in Siemens, cited in paragraph 81 above (EU:C:2014:256), was sent to the applicants on 16 May 2014.

89 A copy of the applicants' observations on the implications for the present case of the judgment in Siemens, cited in paragraph 81 above (EU:C:2014:256), was sent to the Commission on the same day.

90 The Court decided, on 20 and 22 May 2014, to open the oral procedure and invited the parties to submit their written observations, first, on the possible joinder of the present case and Case T-485/11 for the purposes of the oral procedure and the decision closing the proceedings in those cases, and, second, on the implications of the judgment in Areva, cited in paragraph 82 above (EU:C:2014:257), in particular, paragraphs 132, 137 and 138 of that judgment.

91 On 5 June 2014, the applicants submitted their observations on a possible joinder of the present case and Case T-485/11 for the purposes of the oral procedure and the decision closing the proceedings.

92 On the same day, the applicants submitted their observations on the implications for the present case of the judgment in Areva, cited in paragraph 82 above (EU:C:2014:257).

93 On 6 June 2014, the Commission submitted its observations on a possible joinder of the present case and Case T-485/11 for the purposes of the oral procedure and the decision closing the proceedings and also on the implications for the present case of the judgment in Areva, cited in paragraph 82 above (EU:C:2014:257).

94 On 11 June 2014, a copy of the Commission's observations on the implications for the present case of the judgment in Areva, cited in paragraph 82 above (EU:C:2014:257), was sent to the applicants.

95 On the same day, a copy of the applicants' observations on the implications for the present case of the judgment in Areva, cited in paragraph 82 above (EU:C:2014:257), was sent to the Commission.

96 By order of the President of the Fourth Chamber of the Court of 3 July 2014, the present case was joined with T-485/11 for the purposes of the oral procedure.

97 The parties presented their oral arguments and answered the oral questions put to them by the Court at the hearing on 23 September 2014.

98 The applicants claim that the Court should:

- principally, annul the contested decision;

- in the alternative, reduce the amount of the fines imposed upon them;

- order the Commission to pay the costs.

99 The Commission contends that the Court should:

- dismiss the action;

- order the applicants to pay the costs.

100 By application lodged at the Court Registry on 12 September 2011 and registered as T-485/11, Akzo Nobel and Akcros brought an action against the amending decision.

101 By its judgment delivered today in Akzo Nobel and Akcros v Commission, T-485/11, the Court annulled the amending decision.

Law

102 In support of their action, the applicants put forward five pleas in law.

103 By their first plea the applicants allege breaches of the rules on limitation. By their second plea the applicants allege breach of the principle of administrative diligence and the principle that an action must be brought within a reasonable period. By their third plea the applicants allege breach of the rights of the defence. By their fourth plea the applicants allege errors in the attribution of the infringements and the fines. By their fifth plea the applicants allege errors in the calculation of the amount of the fines.

I - The first plea, alleging breach of the rules on limitation

104 In their first plea, alleging breach of the rules on limitation, principally, the applicants claim, first, that the Commission was time-barred from taking action in respect of the first infringement period and, second, that the infringements ceased 'in 1996/1997' or 'at the latest', in 1997, with the result that, by the contested decision, the Commission breached Article 25(1)(b) of Regulation No 1/2003.

105 In the alternative, the applicants claim that, in any event, the Commission breached Article 25(5) of Regulation No 1/2003, since it failed, in the contested decision, to prove the existence of the infringements in 1999 and 2000.

106 It is therefore necessary to assess the arguments which the applicants put forward in their first plea, alleging breach of the rules on limitation, as regards, first, the first infringement period and, second, the second and third infringement periods.

A - The first infringement period

1. Arguments of the parties

107 The applicants submit that it follows from recital 512 and Article 1(1)(b) and (2)(b) of the contested decision that the Akzo group companies, namely Akzo GmbH and Akzo BV, held by the Commission to have directly participated in the infringement during the first infringement period (that is to say, for tin stabilisers from 24 February 1987 until 28 June 1993, and for the ESBO/esters sector, from 11 September 1991 until 28 June 1993), ceased participating in the infringements on 28 June 1993.

108 Accordingly, pursuant to Article 25(1)(b) of Regulation No 1/2003, the Commission was time-barred from taking action against Akzo GmbH and Akzo BV from 28 June 1998.

109 According to the applicants, the first formal action taken by the Commission against them occurred on 12 and 13 February 2003.

110 Consequently, Akzo GmbH and Akzo BV could not be held liable.

111 Therefore, Article 1(1)(b) and (2)(b) of the contested decision must be annulled.

112 For the same reasons, neither can Akzo Nobel, as parent company of those two companies, be held liable for the first infringement period.

113 Accordingly, the fines imposed in Article 2, points 4, 6, 21 and 23, of the contested decision must be annulled, at least in part, having regard to the present arguments.

114 The Commission contends that it established in the contested decision that the entities in the Akzo group participated in the infringement relating to the tin stabilisers sector from 1987 until March 2000 and in the infringement relating to the ESBO/esters sector from 1991 until March 2000.

115 As stated in recital 527 of the contested decision, the Commission proceeded on the basis that, where an undertaking has participated in an infringement over a certain period during which that undertaking has been successively composed of different legal entities, that undertaking cannot rely on the rules on limitation which would arise from those corporate restructurings. Otherwise, undertakings could easily evade the application of the rules on limitation by corporate restructuring. Article 81 EC and the rules on limitation laid down in Article 25 of Regulation No 1/2003 apply to undertakings and not to the legal entities of which they are composed. It follows that if legal persons which form part of the Akzo undertaking participate in an infringement, the limitation period begins to run only on the day on which the infringements committed by the Akzo undertaking cease.

116 The Commission observes that the first investigative actions were taken in January and February 2003, thereby restarting the five-year limitation period, and that further investigative actions were taken subsequently, so that the first contested decision was adopted well within five years of the most recent investigative action.

2. Findings of the Court

117 In the first part of the first plea, alleging a breach of Article 25(1)(b) of Regulation No 1/2003, the applicants claim that the Commission was time-barred from taking action against Akzo GmbH and Akzo BV from 28 June 1998 and, therefore, could not impose on those companies a fine jointly and severally with Akzo Nobel, as parent company of those companies.

118 In that regard, it should be recalled at the outset that, under Article 25(1)(b) of Regulation No 1/2003, the Commission's powers to impose penalties for infringements of Article 81 EC are time-barred after five years.

119 Article 25(2) of Regulation No 1/2003 provides that time runs from the day on which the infringement is committed, but in the case of continuing or repeated infringements, time begins to run on the day on which the infringement ceases.

120 Article 25(3) of Regulation No 1/2003 provides that any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement interrupts the limitation period for the imposition of fines.

121 In the present case, it is undisputed that the Commission, in the contested decision, held Akzo GmbH liable for the infringement relating to tin stabilisers and Akzo BV liable for the infringement relating to the ESBO/esters sector only until 28 June 1993 (see recitals 512 and 513 of the contested decision and Article 1(1)(b) and (2)(b) thereof).

122 It is also undisputed that, in the contested decision, Akzo Nobel was held liable for the infringements committed during the first infringement period, only by virtue of the unlawful conduct of Akzo GmbH, for tin stabilisers, and Akzo BV, for the ESBO/esters sector (see recital 514 of the contested decision).

123 It is equally undisputed that the Commission's first actions for the purpose of the investigation or proceedings in respect of the infringements, covering both tin stabilisers and the ESBO/esters sector, were taken only at the beginning of 2003.

124 Therefore, it cannot be disputed that the Commission's first actions for the purpose of the investigation or proceedings in respect of the infringements, within the meaning of Article 25(3) of Regulation No 1/2003, relating to both tin stabilisers and the ESBO/esters sector, were taken after the expiry, for Akzo GmbH and Akzo BV, of the period provided for in Article 25(1) of that regulation.

125 In that regard, it must be recalled that the expiry of the limitation period provided for in Article 25 of Regulation No 1/2003 is neither to cause an infringement to cease to exist nor to prevent the Commission from establishing, in a decision, liability for such an infringement (see, to that effect, judgment of 6 October 2005 in Sumitomo Chemical and Sumika Fine Chemicals v Commission, T-22/02 and T-23/02, ECR, EU:T:2005:349, paragraphs 60 to 63), but only to enable those that benefit from the limitation period's expiry to avoid proceedings aimed at imposing penalties (see, to that effect, judgment of 27 June 2012 in Bolloré v Commission, T-372/10, ECR, EU:T:2012:325, paragraph 194).

126 Furthermore, it is clear from a textual, contextual and purposive interpretation of Article 25 of Regulation No 1/2003 that, like the individual procedural safeguards, such as the rights of the defence, and the requirement for the Commission to notify both a statement of objections and a decision imposing such penalties to the legal person concerned (see, to that effect, judgment of 10 September 2009 in Akzo Nobel and Others v Commission, C-97/08 P, ECR, EU:C:2009:536, paragraphs 57 and 59), the expiry of the limitation period under Article 25(1) of Regulation No 1/2003 benefits, and may be invoked by, each of the legal persons separately when they are the subject of proceedings brought by the Commission. Accordingly, as has already been recognised in the case-law, the mere fact that a subsidiary of a group of companies, in the sense of an economic unit, benefits from the expiry of the limitation period does not result in the parent company's liability being called into question and prevent proceedings being brought against that parent company (see, to that effect, judgment in Bolloré v Commission, cited in paragraph 125 above, EU:T:2012:325, paragraphs 193 to 196, not affected on that point by judgment of 8 May 2014 in Bolloré v Commission, C-414/12 P, EU:C:2014:301, paragraph 109).

127 That assessment is not contradicted by the use, in Article 25(3) and (4) of Regulation No 1/2003, of the concept of undertaking within the meaning of Article 81(1) EC, which is only intended to define the actions which interrupt the limitation period and the scope of their effects in respect of all undertakings and associations of undertakings which participated in the infringement, that is to say, including the legal persons constituting them (see, to that effect, judgment in Bolloré v Commission, cited in paragraph 125 above, EU:T:2012:325, paragraph 198 et seq.).

128 It follows that, in the present case, Akzo GmbH and Akzo BV, although they remained full members of the Akzo group, could legitimately claim, unlike Akzo Nobel, that the limitation period had expired in respect of them.

129 Accordingly, the applicants' complaints, grounded on Article 25(1)(b) of Regulation No 1/2003, must be upheld and Article 2, points 4, 6, 21 and 23, of the contested decision must be annulled in respect of the fines imposed on Akzo GmbH and Akzo BV for the first infringement period, but those complaints must be rejected as to the remainder.

B - The second and third infringement periods

1. Summary of the arguments of the parties

130 In the first plea, alleging breaches of the rules on limitation, the applicants also argue that the infringements ceased in '1996/1997' or, 'at the latest', in 1997 and that, in any event, the Commission did not prove their participation in the infringements in 1999 and 2000.

131 For its part, the Commission considers that, in the contested decision, it established to the requisite legal standard the existence of the infringement relating to tin stabilisers and the infringement relating to the ESBO/esters sector during the second and third infringement periods.

2. The relevant case-law

132 In that regard, 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 (see judgment of 14 May 2014 in Reagens v Commission, T-30/10, EU:T:2014:253, paragraph 117 and the case-law cited).

133 It is accordingly necessary for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253, paragraph 118 and the case-law cited).

134 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 European Union judicature 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 proved an infringement of competition law (see judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253, paragraph 119 and the case-law cited).

135 However, it is also apparent from the case-law that it is not necessary that every item of evidence produced by the Commission satisfies those criteria in relation to every aspect of the infringement, since it is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (see judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253, paragraph 120 and the case-law cited).

136 It must also be held that since the prohibition on participating in anti-competitive practices and 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 (see judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253, paragraph 121 and the case-law cited).

137 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 drawing inferences (see judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253, paragraph 122 and the case-law cited).

138 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 (see judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253, paragraph 123 and the case-law cited).

139 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 judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253, paragraph 124 and the case-law cited).

140 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 taking that approach, the General Court did not unduly reverse the burden of proof and did not breach the presumption of innocence (see judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253, paragraph 125 and the case-law cited).

141 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 so that the Commission bears the burden of proving that that circumstance was not capable of affecting its probative value. On the contrary, except in cases where such proof could not be provided by the undertaking concerned because of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, first, the existence of the circumstance relied on by it and, second, that that circumstance calls into question the probative value of the evidence relied on by the Commission (see judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253, paragraph 126 and the case-law cited).

142 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 judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253, paragraph 127 and the case-law cited).

143 The Court must assess, in the light of those considerations, the applicants' arguments relating to the second and third infringement periods, that is to say verify whether the Commission established to the requisite legal standard, in the contested decision, the existence of the infringements throughout the period found.

3. The duration of the infringements

144 In the present case, the applicants submit, principally, that the unlawful conduct ceased in '1996/1997' or 'at the latest', in 1997, such that the Commission was time-barred from taking action against them, pursuant to Article 25(1)(b) of Regulation No 1/2003. They argue that the Commission's first action relating to the applicants was only taken by the decision of 30 January 2003, which the Commission does not dispute, that is to say five years, according to the applicants, after the unlawful conduct had ceased.

145 In the alternative, the applicants claim that the Commission did not establish, to the requisite legal standard, the existence of the infringement for 1999 and 2000 so that its powers to impose fines on them were time-barred under Article 25(5) of Regulation No 1/2003. The applicants claim that the decision was adopted only on 11 November 2009, that is to say more than 10 years, according to them, after the unlawful conduct had ceased.

146 In that regard, it is clear that the applicants accept, in their written submissions to the Court in support of their plea alleging infringement of the rules on limitation, the existence of the infringements for the first infringement period, if only by claiming that the infringements ceased 'in 1996/1997' or 'at the latest' in 1997.

147 Accordingly, there is no reason, when assessing the first plea, to verify whether the Commission, in the contested decision, established, to the requisite legal standard, the unlawful conduct which the applicants are accused of engaging in during the first infringement period.

148 However, it must be considered that the applicants' primary claim is that the Commission did not establish the existence of the infringement after '1996/1997' or 'at the latest', after 1997, and that in the alternative they contest, in any event, the probative force of the evidence relied on by the Commission in the contested decision to prove that the infringements continued beyond 11 November 1999.

149 It must also be noted that the applicants do not dispute that the unlawful conduct at issue during the first infringement period took place principally in the meetings in Switzerland organised by AC-Treuhand ('the AC-Treuhand meetings').

150 The applicants do not dispute that Akzo GmbH and Akzo BV participated in the AC-Treuhand meetings during the first infringement period.

151 Nor do they deny that, during the first infringement period, 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.

152 The applicants also acknowledge the existence of the AC-Treuhand meetings during the second and third infringement periods.

153 They do not dispute that representatives from the Akcros partnership and Akcros participated in the AC-Treuhand meetings during the second and third infringement periods, respectively.

154 Nor do they deny that all the AC-Treuhand meetings which took place during the second and third infringement period were also convened by Mr S., and involved almost all the undertakings which had participated in the AC-Treuhand meetings during the first infringement period.

155 Lastly, the applicants do not claim that, during the second infringement period or before the end of the third infringement period, they distanced themselves publicly from the object of the AC-Treuhand meetings.

156 Consequently, in order to assess the applicants' first plea in law, in so far as it refers to the second and third infringement periods, it is sufficient to verify whether the Commission, in the contested decision, established, to the requisite legal standard, that the AC-Treuhand meetings in which the representatives from the Akcros partnership and then from Akcros participated during the second and third infringement periods had an anti-competitive object just like the AC-Treuhand meetings which took place during the first infringement period.

a) Content of the contested decision

The second infringement period

157 In the contested decision, the Commission considered that, for the second infringement period, that is to say the period from 28 June 1993 to 2 October 1998, the infringements at issue had been committed by the Akcros partnership (recitals 563 and 564 of the contested decision).

158 However, the applicants claim that the infringements ceased 'in 1996/1997' or 'at the latest', in 1997.

159 Thus, the applicants do not contest the legality of the contested decision in so far as the Commission found therein that the Akcros partnership had committed, over the course of the second infringement period, the infringements at issue in 1993 (from 28 June), 1994 and 1995.

160 Therefore, as regards the second infringement period, the Court's examination will be restricted to 1996 to 1998.

161 For the purposes of establishing the existence of infringements in 1996 to 1998, the Commission points to various elements in recitals 242 to 297 of the contested decision, in respect of the infringement relating to tin stabilisers and that relating to the ESBO/esters sector.

- The infringement relating to tin stabilisers

162 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 of the contested decision). The applicants do not deny either the existence of those meetings or that the Akcros partnership, Baerlocher and Ciba participated in them.

163 Second, the Commission relied on a document and handwritten notes found at the premises of Baerlocher and dated 8 January 1996, the day of the AC-Treuhand meeting, referring to discussions on sales volumes and prices of tin stabilisers charged to specific customers, and on quotas (recitals 243 and 244 of the contested decision), those documents explicitly mentioning 'Akcros' and Ciba, in particular.

164 Third, the Commission relied on a note of Ciba of 11 June 1996, relating to an exchange between Baerlocher and Ciba, mentioning 'When do we see possibilities of increasing prices' and 'after the exit from the tin prices inevitable agreement' (recital 249 of the contested decision), which the applicants do not dispute.

165 Fourth, 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 of the contested decision), which the applicants do not dispute.

166 Fifth, 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 of the contested decision). The applicants do not deny the existence of those meetings, nor that representatives of the Akcros partnership, Baerlocher, Ciba and Reagens participated in them.

167 Sixth, 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 of the contested decision), which the applicants do not deny. Nor do they dispute the reference in that note to 'Akcros', Baerlocher and Ciba, in particular, in relation to the deviations from the 'quotas'.

168 Seventh, the Commission reproduced the content of the Baerlocher handwritten notes dated 12 March 1997, the day of an AC-Treuhand meeting, showing deviations from the geographic 'quota' of each participating undertaking, including the applicant (recitals 260 and 261 of the contested decision), with those notes explicitly mentioning 'Akcros', Baerlocher, Ciba and Reagens.

169 Eighth, the Commission referred to the handwritten notes of Ciba stating '[n]o further price decreases!', made on the occasion of an AC-Treuhand meeting in Lugano on 17 September 1997, in which representatives from the Akcros partnership, Baerlocher, Ciba and Reagens participated, which the applicants do not dispute (recital 264 of the contested decision).

170 Ninth, as regards 1998, six AC-Treuhand meetings took place in Zurich and in Lugano on 10 and 11 February, 29 and 30 June, 14 and 15 September (recital 270 of the contested decision). The applicant does not deny the existence of those meetings, nor that representatives from the Akcros partnership, Baerlocher, CECA, Reagens and Ciba participated in them.

171 Tenth, the Commission relied on handwritten notes, provided by CECA in the context of its cooperation with the Commission and made on the occasion of the AC-Treuhand meeting of 11 February 1998, in which the Akcros partnership, Baerlocher, CECA, Reagens and Ciba participated, which the applicants do not dispute, mentioning the minimum prices for certain customers and a freeze on customers (recital 272 of the contested decision).

172 Eleventh, according to the handwritten notes of CECA dated 5 November 1998, there were discussions between the participants, including the Akcros partnership, Baerlocher, CECA and Reagens, and those notes refer to changes in their market shares (recital 276 of the contested decision), which the applicants do not dispute.

- On the infringement relating to the ESBO/esters sector

173 First, as regards 1996, in the contested decision the Commission established the existence of four AC-Treuhand meetings, which took place on 13 and 14 February, 16 July and 6 November (recitals 252, 254 and 255 of the contested decision). The applicants do not deny either the existence of those meetings or that the Akcros partnership, CECA, Chemson, Ciba and Faci participated in them.

174 Second, the Commission, in recital 254 of the contested decision, relied on evidence provided by Ciba concerning an AC-Treuhand meeting of 14 February 1996 in which representatives from the Akcros partnership, Chemson and Ciba participated and during which they discussed quotas for Faci as a new arrival.

175 Third, the Commission, in recital 255 of the contested decision, relied on evidence provided by Ciba concerning an AC-Treuhand meeting of 16 July 1996 in which representatives from the Akcros partnership, CECA, Chemson and Ciba participated, which the applicants do not dispute, and during which the participants confirmed their desire for 'cooperation' and for no further 'audits'.

176 Fourth, the Commission referred to the handwritten notes of Ciba of 6 November 1996, obtained in the context of that undertaking's cooperation during the administrative procedure (recital 256 of the contested decision).

177 It is clear from those notes, made on the occasion of an AC-Treuhand meeting of 6 November 1996, in which representatives from the Akcros partnership, CECA, Chemson, Ciba and Faci participated, which the applicants do not dispute, that the participating undertakings agreed on price targets for France.

178 Fifth, as regards 1997, the Commission established, in the contested decision, the existence of three AC-Treuhand meetings, which took place on 13 March, 10 July and 10 September (recital 267 of the contested decision). The applicants do not deny either the existence of those meetings or that representatives from the Akcros partnership, CECA, Chemson, Ciba and Faci participated in them.

179 Sixth, the Commission reproduced, in the contested decision, handwritten notes from Reagens, seized by the Commission during an inspection at the company's premises, written in October 1997 and starting with the entries, in capital letters, 'VERY CONFIDENTIAL' and 'PLEASE READ AND DESTROY' (recitals 268 and 269 of the contested decision).

180 It appears from these notes, written on the occasion of a meeting of 14 October 1997 in Milan (Italy), in which representatives from the Akcros partnership, CECA, Ciba and Faci participated, which the applicants do not dispute, that the participating undertakings not only exchanged sensitive commercial information on their production capacity, but also set 'minimum prices' and 'special minimum prices'. It is also clear from those notes that another meeting had taken place before this meeting and would be followed, on 25 November 1997, by another meeting between the same participants.

181 Seventh, as regards 1998, the Commission established in the contested decision the existence of eight AC-Treuhand meetings, which were held on 11 and 12 March, 20 and 25 May, 20 July, 13 August and 19 and 20 October (recital 278 of the contested decision). The applicants do not dispute the existence of such meetings or that the representatives from the Akcros partnership, CECA, Ciba/Chemtura, Chemson and Faci participated in them.

182 Eighth, as regards the AC-Treuhand meeting held in Switzerland on 12 March 1998, in which representatives from the Akcros partnership, CECA, Chemson, Ciba/Chemtura and Faci participated, which the applicants do not deny, the Commission adduced CECA's representative's notes, that undertaking also having participated in that meeting (recital 279 of the contested decision).

183 It appears from those notes that the participating undertakings not only exchanged sensitive commercial information on their respective market shares in western Europe for 1996 and 1997, but also, first, discussed price increases for the second quarter of 1998 in some European countries and, second, agreed on a minimum and a target price to be achieved by the end of the year. The content of those notes was corroborated by the notes of 12 March 1998, obtained through Ciba's cooperation during the administrative procedure (recital 280 of the contested decision).

184 Ninth, as regards the AC-Treuhand meeting held in Zurich on 20 May 1998, in which representatives from the Akcros partnership, CECA, Chemson, Ciba and Faci participated, which the applicants do not dispute, the Commission adduced notes made by CECA (recital 281 of the contested decision).

185 Those notes reveal, for the months of January, February, March and April 1998 in relation to western Europe and eastern Europe, the market shares of various undertakings, including the Akcros partnership, CECA, Chemson, Ciba/Chemtura and Faci, which the applicants do not dispute, in a column entitled 'Quotas'.

186 Tenth, as regards the AC-Treuhand meeting held in Zurich on 25 May 1998, in which representatives from the Akcros partnership, CECA, Chemson, Ciba and Faci participated, which the applicants do not deny, the Commission, in recital 282 of the contested decision, relied on handwritten and contemporaneous notes of the meeting made by an employee of Arkema ('the Arkema notes of May 1998') and the handwritten and contemporaneous notes of that meeting made by an employee of Ciba/Chemtura.

187 It appears from the Arkema notes of May 1998 that the participating undertakings exchanged commercially sensitive information not only on the price levels in some European countries, but also on the 'quotas' and the sales volumes of the participating undertakings, namely the Akcros partnership, CECA, Chemson, Ciba and Faci.

188 The content of the Arkema notes of May 1998 is corroborated by the May 1998 notes made by an employee of Ciba, mentioned above, which show, furthermore, that the participating undertakings, the Akcros partnership, CECA, Chemson, Ciba and Faci, also agreed on new target prices to be applied from June and July 1998.

189 Eleventh, as regards the AC-Treuhand meeting held in Lugano on 20 July 1998, in which representatives from the Akcros partnership, CECA, Chemson, Ciba and Faci participated, which the applicants do not dispute, the Commission, in recital 284 of the contested decision, relied on handwritten and contemporaneous notes of that meeting made by a CECA employee and also the handwritten and contemporaneous notes of the meeting made by an employee of Ciba/Chemtura.

190 It appears from the notes of a CECA employee that the participating undertakings discussed sales volumes and prices, and that they even agreed new quotas and new indicative and minimum prices, since those notes contain the entry 'Guideline: 1,95 now (no decrease)'.

191 The notes written by an employee of Ciba/Chemtura contain an entry of the same vein, namely 'No price reduction! Ziel [Target] 1.95 DM'.

192 Twelfth, as regards the AC-Treuhand meeting of 14 August 1998, in which representatives from the Akcros partnership, CECA, Chemson, Ciba/Chemtura and Faci participated, which the applicants do not dispute, the Commission, in recital 285 of the contested decision, relied on the handwritten and contemporaneous notes made on the occasion of that meeting, according to which there were exchanges of information on the prices charged to certain customers and target prices in specific EEA countries.

The third infringement period

193 In the contested decision, the Commission considered that, for the third infringement period, that is to say the period from 2 October 1998 to 21 March 2000 for the infringement relating to tin stabilisers, and from 2 October 1998 to 22 March 2000 for the infringement concerning the ESBO/esters sector, the infringements had been committed by Akcros (see recitals 582 to 587 of the contested decision).

194 The applicants claim that the Commission failed, in the contested decision, to establish to the requisite legal standard the existence of the infringements in 1999 and 2000.

195 Since, at this stage of the Court's assessment, it has been held, in paragraphs 170 to 172 of the present judgment, as regards tin stabilisers and, in paragraphs 181 to 192 of the present judgment, as regards the ESBO/esters sector, that the Commission, in the contested decision, established to the requisite legal standard that the Akcros partnership had participated in the infringements in question for the part of 1998 included in the second infringement period, the Court's examination will be limited to 1999 and 2000 as regards the third infringement period.

196 For the purposes of establishing the existence of infringements in 1999 and 2000, the Commission relied on various pieces of evidence in recitals 299 to 323 of the contested decision in respect of the infringement relating to tin stabilisers and the infringement relating to the ESBO/esters sector.

- The infringement relating to tin stabilisers

197 First, as regards 1998, two AC-Treuhand meetings took place in Zurich and in Lugano on 14 and 15 September (recital 270 of the contested decision). The applicant does not deny the existence of those meetings, nor that representatives from the Akcros partnership, Baerlocher, CECA, Reagens and Ciba participated in them.

198 Second, the Commission relied on handwritten notes provided by Ciba in the context of its administrative cooperation with the Commission dated 13 November 1998, made on the occasion of an AC-Treuhand meeting on that date, in which the representatives from the Akcros partnership, Baerlocher, CECA and Reagens participated, which the applicants do not dispute, and showing an agreement between the participants on new target prices and minimum prices for the European markets (recital 277 of the contested decision).

199 Third, as regards 1999, the Commission established, in the contested decision, the existence of nine AC-Treuhand meetings, which took place in Zurich and Lugano, on 22 and 23 February, 26 and 27 April, 19 and 20 July, 23 September and on 29 and 30 November (recital 299 of the contested decision). The applicants do not deny either the existence of those meetings or that Akcros, Baerlocher, CECA, Reagens and Chemtura participated in them.

200 Fourth, the Commission adduced the content of an Akcros email of 19 February 1999 showing the existence of commitments undertaken by the tin stabiliser suppliers in relation to prices (recital 300 of the contested decision).

201 Fifth, the Commission relied on handwritten notes provided by Ciba in the context of its cooperation with the Commission and made on the occasion of an AC-Treuhand meeting of 23 February 1999, in which Akcros, Baerlocher, CECA, Chemtura and Reagens participated, which the applicants do not dispute, showing the participants' adherence to a price increase for specific customers (recital 301 of the contested decision).

202 Sixth, 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 of the contested decision).

203 Seventh, 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 of the contested decision).

204 Eighth, Chemtura's monthly report for November 1999, dated 17 December 1999, mentioned a price increase, led by a competitor undertaking and supported by two other competitor undertakings, that would 'not go into effect before the first quarter of 2000' (recital 304 of the contested decision).

205 Ninth, as regards 2000, the Commission established, in the contested decision, the existence of two AC-Treuhand meetings, which took place in Zurich on 20 and 21 March (recital 316 of the contested decision). The applicants do not deny either the existence of those meetings or that Akcros, Baerlocher, CECA, Chemtura and Reagens participated in them.

206 Tenth, in recital 317 of 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 applicants, 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.'

207 Eleventh, to support its interpretation of the Akcros memorandum, the Commission stated, in recital 318 of the contested decision, that Akzo Nobel 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 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'.

208 Twelfth, the Commission noted that, as a follow-up to the Akcros memorandum, the representative from Akcros stated, at a meeting on 21 March 2000 in Zurich, that Akcros would no longer attend the AC-Treuhand meetings, 'while continuing its participation in the exchange of sales data' (recital 319 of the contested decision), a matter which the applicants do not dispute.

209 Thirteenth, 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 of the contested decision), which the applicants do not dispute.

210 Fourteenth, the Commission relied on 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) of the contested decision).

- The infringement relating to the ESBO/esters sector

211 First, as regards the AC-Treuhand meeting of 20 October 1998, in which Akcros, CECA, Chemson, Ciba/Chemtura and Faci participated, which the applicants do not deny, the Commission, in recital 287 of the contested decision, relied on the handwritten and contemporaneous notes made on the occasion of that meeting by an employee of Ciba.

212 Those notes contain a table showing the customer allocation among the participating undertakings, Akcros, CECA, Chemson, Ciba/Chemtura and Faci, and the prices to be applied to each of them.

213 Second, the Commission, in recital 290 of the contested decision, relied on handwritten notes of an Arkema employee of 24 November 1998, which noted sales volume deviations in October 1998 for Akcros, CECA, Chemson, Ciba/Chemtura and Faci.

214 Third, the Commission, in recital 291 of the contested decision, relied on a CECA employee's notes also dated 24 November 1998, setting out the market shares of Akcros, CECA, Chemson, Ciba/Chemtura and Faci.

215 Fourth, the Commission, in recital 293 of the contested decision, relied on notes from another of CECA's employees dated 25 November 1998, setting out the monthly sales levels of Akcros, CECA, Chemson, Ciba and Faci and also deviations from 'quotas' agreed between those undertakings.

216 Fifth, as regards 1999, the Commission established, in the contested decision, that eight AC-Treuhand meetings took place, on 25 and 26 January, 26 and 27 May, 28 and 29 September, and 14 and 15 December (recital 305 of the contested decision). The applicants do not deny either the existence of those meetings or that Akcros, CECA, Chemson, Chemtura and Faci participated in them.

217 Sixth, the Commission relied on, in recital 306 of the contested decision, notes provided by Ciba and taken on the occasion of the AC-Treuhand meeting of 26 January 1999, describing exchanges of commercially sensitive information, concerning the quantities sold and the customers, between the participating undertakings, namely Akcros, CECA, Chemson, Chemtura and Faci.

218 Seventh, the Commission relied on, in recital 307 of the contested decision, notes provided by Ciba and taken on the occasion of the AC-Treuhand meeting of 27 May 1999, describing exchanges of commercially sensitive information on the prices to customers in specific EEA countries, between the participating undertakings, namely Akcros, CECA, Chemson, Chemtura and Faci.

219 Eighth, the Commission stated that Chemtura's monthly report for August 1999, dated 16 September 1999, indicated that certain undertakings had succeeded 'with a price increase of about 10% for [the ESBO/esters sector] effective in October' (recital 308 of the contested decision).

220 Ninth, the Commission adduced handwritten notes provided by Arkema providing an account of an AC-Treuhand meeting of 29 September 1999, in which Akcros, CECA, Chemson, Chemtura and Faci participated (recital 309 of the contested decision), which the applicants do not deny.

221 Those notes show that there was a price agreement by the entry 'oct. min. 1.9 nov. 2.0 DM'.

222 Tenth, as regards 2000, the Commission established, in the contested decision, the existence of, inter alia, two AC-Treuhand meetings on 21 and 22 March (recital 316 of the contested decision). The applicants do not dispute either the existence of those meeting or that Akcros, CECA, Chemson, Faci and Chemtura participated in them.

223 Eleventh, the Commission relied on the Akcros memorandum, the content of which is reproduced in paragraph 210 above.

224 Twelfth, the Commission also relied on the handwritten Akcros notes, which are mentioned in paragraph 211 above.

225 Thirteenth, the Commission notes that, as a follow-up to the Akcros memorandum, the representative from Akcros stated, at an AC-Treuhand meeting on 22 March 2000 in Zurich, that Akcros would no longer attend the AC-Treuhand meetings (recital 320 of the contested decision), which the applicants do not dispute.

226 Fourteenth, the Commission also stated that Akcros had confirmed, by letter of 5 June 2000, that it no longer intended to attend the AC-Treuhand meetings (recital 321 of the contested decision), which the applicants do not dispute.

227 Fifteenth, the Commission also relied on the statements made by Chemtura as part of its cooperation with the Commission during the administrative procedure which referred to the continuation of the cartel in the ESBO/esters sector 'until 2001' (recital 420(b) of the contested decision).

b) Findings of the Court

Overall assessment

228 Having regard to all that evidence, taken together, the Court considers that the Commission proved the Akcros partnership's participation and, subsequently, Akcros's participation, during the second and third infringement periods. It provided specific evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting the infringement relating to tin stabilisers and the infringement relating to the ESBO/esters sector throughout all those periods during which the meetings took place, in which representatives from the Akcros partnership and, subsequently, Akcros participated, and until Akcros distanced itself from them. The Commission accordingly adduced, in the contested decision, sufficient evidence to support the firm conviction that the Akcros partnership and, subsequently, Akcros participated in the infringement relating to tin stabilisers and the infringement relating to the ESBO/esters sector during the second and third infringement periods.

229 Taken as a whole, the various pieces of evidence referred to in paragraphs 162 to 172 and 197 to 210 above, relating to tin stabilisers, and in paragraphs 173 to 192and 211 to 227 above, relating to the ESBO/esters sector, establish, to the requisite legal standard, that, during the second and third infringement periods, the participating undertakings in the AC-Treuhand meetings agreed on the fixing of prices and the allocation of customers by means of quotas, as well as the exchange of commercially sensitive information.

230 That evidence clearly demonstrates that the meetings in which the Akcros partnership and, then, Akcros, participated 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, to the Akcros memorandum mentioning discussions on prices and quotas, and to the handwritten Akcros notes, which also mention discussions on prices and customers.

231 It is apparent from that evidence that the AC-Treuhand meetings during the second and third infringement periods, which the applicants accept that the Akcros partnership and, then, Akcros 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.

232 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 Akcros partnership and, then, Akcros participated in the infringement relating to tin stabilisers and the infringement relating to the ESBO/esters sector during the second and third infringement periods.

233 The foregoing considerations, taken as a whole, cannot be called into question by the applicants' arguments.

Rejection of the applicants' arguments

- The second infringement period

234 First, to establish the end of the infringements in '1996/1997' or 'at the latest' in 1997, the applicants produce several sworn and notarised statements from employees who were most prominently involved in the applicants' heat stabiliser production and sale activities during the second and third infringement periods.

235 Those statements cannot prove that the infringements ended in '1996/1997'.

236 It is clear, apart from the fact that the terminological similarity of their content arouses suspicion, that those statements come from persons employed in companies controlled by the applicants and who participated in the AC-Treuhand meetings, or who were aware of those meetings. Moreover, those statements were made in tempore suspecto.

237 Second, the applicants claim that the documents in the case file contain evidence, from other undertakings, of the end of the infringements in '1996/1997', namely statements from Baerlocher made in the context of its administrative cooperation with the Commission and a statement of Reagens of 31 October 2007.

238 Those statements cannot prove that the unlawful conduct ended in '1996/1997'.

239 Baerlocher, whose statements, in any event, concern only the infringement relating to tin stabilisers and not that relating to the ESBO/esters sector, itself changed its position, as is apparent from recital 410 of the contested decision.

240 Moreover, it is undisputed that the statement of Reagens of 31 October 2007, the scope of which must, in any event, be limited to the infringement relating to the ESBO/esters sector and does not apply to the infringement relating to tin stabilisers, was drafted in tempore suspecto by an undertaking which directly participated not in the infringement relating to the ESBO/esters sector, although it attended certain meetings in 1997, as is clear from paragraphs 179 and 180 above, but in the infringement relating to tin stabilisers, as has been established by the Court (judgment in Reagens v Commission, cited in paragraph 132 above, EU:T:2014:253 paragraphs 122 to 185).

241 Consequently, that submission cannot call into question the probative force of the evidence, recalled in paragraphs 173 to 192 and 211 to 227 above relating to the ESBO/esters sector.

242 Third, the applicants point out that the Commission itself admitted, in recital 412 of the contested decision, that the 'methodology and perhaps even the exact content of the collusions within AC Treuhand [had] changed in 1996 - 1997'.

243 That finding cannot prove that the unlawful conduct ended in '1996/1997'.

244 At most it is clear from this that the restrictive agreements or practices in question evolved in respect of their modalities and their participants, which is moreover characteristic of infringements of very long duration, as in the present case; in any event the fact that some undertakings ceased their participation cannot prove that the unlawful conduct of the Akcros partnership ceased.

245 Fourth, the applicants claim to have participated, after '1996/1997', in the 'regular AC Treuhand meetings to discuss the aggregated benchmarking statistics', which explains the references to Akcros in the official minutes of the AC-Treuhand meetings, from which it is clear that the discussions were purely related to statistical issues.

246 In rejecting that argument, suffice it to note that the applicants distanced themselves from those meetings on 21 March 2000 for tin stabilisers, and 22 March 2000 for the ESBO/esters sector and confirmed that distancing in a letter addressed to AC-Treuhand on 5 June 2000.

247 Such distancing, in March and June 2000, would have been entirely otiose had the unlawful conduct ceased 'in 1996/1997' or 'at the latest', 'in 1997'.

248 Accordingly, it must be held that the Commission, in the contested decision, established to the requisite legal standard the existence of the unlawful conduct of which the Akcros partnership is accused during the second infringement period and, accordingly, the first plea, in so far as it alleges breach of Article 25(1)(b) of Regulation No 1/2003 in respect of the second infringement period, must be rejected.

- The general arguments relating to both 1999 and 2000

249 In order to challenge the evidence used by the Commission in the contested decision to establish the existence of the infringements during 1999 and 2000, first, the applicants reject altogether the interpretation of the minutes of the AC-Treuhand meetings, which, they claim, do not contain incriminating evidence, but merely evidence of an exchange of statistical information.

250 Suffice it to note that those minutes are not among the evidence used in the present judgment to verify whether the Commission had, in the contested decision, proved to the requisite legal standard the existence of the infringement relating to tin stabilisers and the infringement relating to the ESBO/esters sector.

251 Second, the applicants dispute the contention that the handwritten notes, relied on in the contested decision, were taken during the AC-Treuhand meetings, since those notes 'could well have [been] taken ... in the context of these meetings, for example when some or all of the delegates met for dinner the night before'.

252 That argument cannot succeed since it does not call into question either the contemporaneous character of the notes as regards the AC-Treuhand meetings, or the existence of AC-Treuhand meetings or their anti-competitive object.

- 1999 for tin stabilisers

253 First, specifically in relation to 1999 and tin stabilisers, the applicants claim that neither Chemtura's report of 15 November 1999, relied on in recital 303 of the contested decision, nor Ciba's notes of 27 April 1999, relied on in recital 302 of the contested decision, were included in the statement of objections, and, accordingly, that evidence must be rejected as inadmissible.

254 In rejecting those arguments and regardless of the question of the evidence's admissibility, suffice it to note that the evidence relied on by the Commission is not included in the evidence relied on in the present judgment to arrive at the conclusion that the Commission, in the contested decision, had proved, to the requisite legal standard, the existence of the infringement relating to tin stabilisers during 1999.

255 Second, the applicants argue that Chemtura's email of 23 November 1999 and Chemtura's report of 17 December 1999, relied on by the Commission in recital 304 of the contested decision, contain no incriminating evidence and do not mention Akcros. Similarly, they submit that Chemtura's report of 16 September 1999, relied on by the Commission in recital 303 of the contested decision, contains no incriminating evidence and does not mention Akcros.

256 In rejecting that argument, suffice it to note that Chemtura's report of 16 September 1999, Chemtura's email of 23 November 1999 and Chemtura's report of 17 December 1999 relate to commercially sensitive information and were drawn up before and after the AC-Treuhand meetings in which those undertakings participated, alongside Akcros, which the applicants do not dispute, and that Akcros formally distanced itself from the AC-Treuhand meetings in March 2000, that is to say only several months after those documents were drawn up.

257 Third, the applicants claim that Ciba's notes of 23 February 1999, relied on by the Commission in recital 301 of the contested decision, suggest only an 'exchange of historic information' and that Akcros's email of 19 February 1999, relied on by the Commission in recital 300 of the contested decision, 'simply provides an objective observation of the developments in the market and does not prove the applicants' participation in the infringement at this point in time'.

258 In rejecting that argument, suffice it to hold that Akcros's email of 19 February 1999 and Ciba's notes of 23 February 1999 relate to commercially sensitive information and were written in the follow-up to the AC-Treuhand meetings in which those undertakings participated, alongside Akcros, which the applicants do not dispute.

259 Accordingly, it must be held that the Commission, in the contested decision, proved to the requisite legal standard the existence of the infringement relating to tin stabilisers during 1999.

- 1999 for the ESBO/esters sector

260 First, specifically as regards 1999 and the ESBO/esters sector, the applicants claim that the minutes of the AC-Treuhand meeting of 15 December 1999, relied on by the Commission in recital 315 of the contested decision, were not included in the statement of objections and accordingly that evidence must be rejected as inadmissible.

261 In rejecting that argument, suffice it to hold that that report was not among the evidence relied on in the present judgment to reach the conclusion that the Commission, in the contested decision, had proved to the requisite legal standard the existence of the infringement relating to the ESBO/esters sector during 1999.

262 Second, the applicants dispute the Commission's interpretation, in recitals 312 to 314 of the contested decision, of Chemtura's reports of 12 October and 15 November 1999 and Chemtura's emails of 16 September and 23 November 1999.

263 In rejecting that argument, suffice it to hold that the evidence relied on in recitals 312 to 314 of the contested decision is not among the evidence relied on in the present judgment to reach the conclusion that the Commission, in the contested decision, had proved to the requisite legal standard the existence of the infringement relating to the ESBO/esters sector during 1999.

264 Third, the applicants dispute the probative value of the Arkema notes referred to in recital 309 of the contested decision and of the evidence adduced in recital 310 of the contested decision.

265 In rejecting that argument, first, suffice it to hold that the evidence relied on in recital 310 of the contested decision is not among the evidence relied on in the present judgment to verify whether the Commission had, in the contested decision, proved to the requisite legal standard the existence of the infringement relating to the ESBO/esters sector during 1999.

266 Second, suffice it to note that the Arkema notes mentioned in recital 309 of the contested decision relate to commercially sensitive information and were made before and after the AC-Treuhand meetings in which that undertaking participated, alongside Akcros, which the applicants do not dispute, and that Akcros formally distanced itself from the AC-Treuhand meetings in March 2000, that is to say only several months after those notes were made.

267 The same findings apply mutatis mutandis in order to reject the applicants' argument by which they contest the Commission's interpretation, in recital 308 of the contested decision, of Chemtura's report of 16 September 1999.

268 Fourth, the applicants contest the probative value of Ciba's notes of 27 May 1999, accepted by the Commission in recital 307 of the contested decision, on the grounds that those notes are at odds with other evidence adduced in the contested decision.

269 In rejecting that argument, first, suffice it to hold that the inconsistency of those notes with other evidence relied in the contested decision is not sufficient in itself to call into question the probative value of the evidence relied on as a whole in the present judgment to verify whether the Commission had proved the existence of the infringement relating to the ESBO/esters sector in 1999.

270 Fifth, the applicants contest the probative value of Ciba's notes of 26 January 1999, since, as the Commission accepted in recital 306 of the contested decision, those notes 'only reflect an exchange of historic information' and do not 'point to the [a]pplicants' participation in a price-fixing agreement or allocation of customers'.

271 In rejecting that argument, suffice it to note that Ciba's notes of 26 January 1999 relate to commercially sensitive information and were made before and after the AC-Treuhand meetings in which that undertaking participated, alongside Akcros, which the applicants do not dispute.

272 Accordingly, it must be held that the Commission, in the contested decision, proved to the requisite legal standard the existence of the infringement relating to the ESBO/esters sector in 1999.

- 2000

273 First, specifically with regard to 2000, the applicants contest the probative value of Chemtura's report of 6 April 2000, referred to in recital 322 of the contested decision.

274 In rejecting this argument, suffice it to note that the report is not among the evidence relied on by the Court, in relation to the infringement relating to tin stabilisers and the infringement relating to the ESBO/esters sector, for the purpose of verifying whether the Commission had, in the contested decision, proved to the requisite legal standard the existence of those infringements during the third infringement period.

275 Second, the applicants challenge the probative value of the evidence relied on by the Commission to establish Akcros's distancing, referred to in recitals 319 to 321 of the contested decision.

276 In rejecting that argument, suffice it to note that it is precisely on the basis of the evidence proving that Akcros distanced itself that the Commission established the end of the applicants' liability in respect of the third infringement period.

277 Furthermore, it is not possible to understand the interest and motivation behind such distancing in March and June 2000, without concluding that the unlawful conduct had persisted during the third infringement period.

278 Third, the applicants challenge the Commission's interpretation, in the contested decision, of Akcros's memorandum and Akcros's handwritten notes, referred to in recitals 317 and 318 of the contested decision.

279 In rejecting the applicants' arguments, suffice it to note that the Commission's interpretation of Akcros's memorandum and Akcros's handwritten notes is the only one that can explain and substantiate Akcros's formal withdrawals from the cartels, first of all in March 2000, and then on 6 June 2000.

280 Accordingly, it must be held that the Commission, in the contested decision, proved to the requisite legal standard the existence of the infringement relating to tin stabilisers and the infringement relating to the ESBO/esters sector in 2000.

281 Therefore, it must be held that the Commission, in the contested decision, proved to the requisite legal standard the existence of those infringements during the second and third infringement periods.

282 Accordingly, the first plea, alleging infringement of Article 25(1)(b) and (5) of Regulation No 1/2003, must be rejected in so far as it concerns the second and third infringement periods.

283 Accordingly the first plea in law, alleging breach of the rules on limitation, must be upheld in respect of the fines imposed on Akzo GmbH and Akzo BV for the first infringement period, but must be rejected as to the remainder.

II - The second plea, alleging breach of the principle of administrative diligence and the principle that an action must be brought within a reasonable period

284 In their second plea, alleging breach of the principle of administrative diligence and the principle that an action must be brought within a reasonable period, the applicants, in essence, claim, principally, that the contested decision should be annulled, and, in the alternative, that the amount of the fines imposed on them should be varied.

A - The second plea, in so far as it is raised in order to have the contested decision annulled

285 In their second plea, alleging breach of the principle of administrative diligence and the principle that an action must be brought within a reasonable period, the applicants, in essence, claim, principally, that the contested decision should be annulled, in that the Commission breached their rights of defence.

286 The applicants claim that, even if the Court were to reject their plea alleging breach of the rules on limitation, it should still annul the contested decision owing to the excessively long duration of the administrative procedure, which compromised the exercise of their rights of defence and constituted a breach of the principle of administrative diligence.

1. Arguments of the parties

287 The applicants observe that 56 months elapsed between the Commission's first measure of investigation, in February 2003, and the resumption of the investigation, in October 2007; such an interval, for an investigation which lasted 74 months in total, was excessive and unjustifiable.

288 In that regard, they claim, first of all, that the Commission had all the necessary information, as the applicants themselves had reproduced the contents of the documents at issue during the Akzo judicial proceedings in their 2003 leniency application. They claim, furthermore, that the handwritten notes, on which the Commission relies in recital 318 of the contested decision, had been placed on the file from the date of the inspections in February 2003. In any event, following the order in Commission v Akzo and Akcros, cited in paragraph 26 above (EU:C:2004:566), the Commission was allowed unlimited access to all the documents at issue.

289 Next, the applicants maintain that there was nothing preventing the Commission from carrying out a preliminary assessment of certain leniency applications, in particular those submitted by Chemtura and the applicants.

290 Last, the applicants claim that the information in the documents at issue was not in any way crucial for the overall assessment of the case either in relation to the duration or in relation to the products, as the Commission observed in recital 456 of the contested decision. Accordingly, the Commission could have adopted a decision without having those documents. Any successful action against that decision on the ground of illegal use of the documents at issue, whatever they may be, would have resulted at most in the documents being removed from the Commission's file, which is all the more apparent as the Akzo judicial proceedings had not been closed when the Commission adopted the contested decision.

291 In any event, the 56 months of administrative inaction compromised the applicants' ability to defend themselves, since certain documents were no longer available or accessible. Moreover, the individuals necessary for the Commission's investigation, in particular for the first infringement period, necessarily have a limited recollection of the facts or simply could not be found.

292 The Commission refers to recitals 451 to 487 of the contested decision and contends that the applicants have failed to show either that the Commission did not pursue the investigation diligently or that it in any way prejudiced their rights of defence.

293 In the first place, the Commission maintains that it conducted its investigation diligently and sets out the various stages, emphasising the content of the various decisions taken on the applications for interim measures in the Akzo judicial proceedings.

294 The Commission contends that it is thus clear that the Commission was faced at the very beginning of its investigation with an action relating to several important pieces of evidence, which it was unable to put to other undertakings, as it had undertaken to the Court of Justice and to this Court that it would not do so. In respect of the applicants, the Commission could not safely rely on the documents at issue for so long as the legality of such a measure was disputed. Accordingly, it could not reasonably proceed to the stage of adopting a statement of objections. Likewise, until such time as a decision had been taken on the status of the documents at issue, the Commission could not make a provisional assessment of the applicants' leniency application in order to determine its accuracy and value, as it was required to do before issuing the statement of objections.

295 The Commission maintains that it was unable to proceed with the investigation until this Court ruled on the documents at issue in the context of the Akzo judicial proceedings, since those documents, in particular the Akcros memorandum, were essential for the determination of the duration of the infringements; that it could not make a provisional assessment of the leniency applications without relying on those documents; and that it could not therefore use them against the other parties, so that without those documents it was unable to adopt a statement of objections.

296 In the second place, the Commission maintains that the applicants have wholly failed to establish a breach of their rights of defence owing to the duration of the administrative procedure.

297 The Commission observes, first of all, that the difficulties experienced in locating documents and individuals, and the issue of the reliability of the recollection of those individuals, are the usual characteristics of a long-lasting cartel with a high turnover of individuals and identification of evidence covering many years. The Commission states that, since the applicants were aware of the investigation in March 2003 and were also aware that the investigation had to be suspended pending the outcome of the Akzo judicial proceedings, they could have taken action to preserve their evidence.

298 The Commission then contends that the applicants claim that documents had become inaccessible, but without establishing that that resulted in a breach of their rights of defence

299 The Commission contends, last, that the applicants have not demonstrated that they made consistent and serious attempts to contact the individuals concerned.

2. Findings of the Court

300 In their second plea, the applicants claim, principally, that a breach by the Commission of the principle of administrative diligence and the principle that an action must be brought within a reasonable period affected their rights of defence and that, accordingly, the contested decision should be annulled.

a) The relevant case-law

301 In that regard, it must be recalled that, first, the observance of the reasonable time requirement in the conduct of administrative procedures relating to competition constitutes a general principle of EU law (see judgment of 21 September 2006 in Technische Unie v Commission, C-113/04 P, ECR, EU:C:2006:593, paragraph 40 and the case-law cited).

302 Next, it should be recalled that the reasonableness of a given period cannot be assessed by reference to a precise maximum limit determined in an abstract manner but, rather, must be appraised in the light of the specific circumstances of each case (judgment of 15 October 2002 in Limburgse Vinyl Maatschappij and Others v Commission, C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P, ECR, EU:C:2002:582, paragraph 192).

303 Furthermore, it must be recalled that, even if it is found that the Commission failed to act within a reasonable time, this may only constitute a ground for annulment of a decision finding infringements of competition rules where it has been proved that the Commission's failure has adversely affected the ability of the undertakings concerned to defend themselves (see judgment of 16 December 2003 in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission, T-5/00 and T-6/00, ECR, EU:T:2003:342, paragraph 74 and the case-law cited).

304 Finally it must be recalled that the burden of proving a breach of the rights of the defence by virtue of the fact that an undertaking experienced difficulties in defending itself against the Commission's allegations as a consequence of the excessive duration of the administrative procedure is borne by that undertaking (see judgment of 31 March 2009 in ArcelorMittal Luxembourg and Others v Commission, T-405/06, ECR, EU:T:2009:90, paragraph 167 and the case-law cited).

305 It is thus for the undertaking concerned to demonstrate to the requisite legal standard that it experienced difficulties in defending itself, which were the consequence of the duration of the administrative procedure, indicating the specific objections found by the Commission in the decision which might have been refuted (see, to that effect, judgment in Technische Unie v Commission, cited in paragraph 301 above, EU:C:2006:593, paragraphs 61 and 64).

b) Assessment

306 In the present case, it is clear that the Commission does not contest the excessively long duration of the administrative procedure, having itself reduced, in the contested decision, the amount of fines imposed on all undertakings involved, with the exception of the applicants.

307 The Commission maintains, however, that the duration of the administrative procedure is a result of the Akzo judicial proceedings and accordingly it cannot be criticised for a lack of administrative diligence.

308 Moreover, in contesting the plea by which the applicants seek annulment of the contested decision on the ground that there was a breach of the principle that an action must be brought within a reasonable period, the Commission maintains that the applicants have, in any event, failed to establish that their rights of defence were breached.

309 Accordingly, when assessing the second plea by which the applicants seek annulment of the contested decision on the ground that there was a breach of the principle of administrative diligence and of the principle that an action must be brought within a reasonable period, it is sufficient for the Court to assess whether the applicants have established that there was a breach of their rights of defence due to the excessive duration of the administrative procedure.

310 Even though it were to be held that the Commission breached the principle that an action must be brought within a reasonable period and the principle of administrative diligence and that those failures were attributable to the Commission, the contested decision could be annulled only if it were established that the applicants' rights of defence were in fact breached by virtue of that excessive duration.

311 On that question, the applicants, in essence, merely assert, without supporting evidence, that they would have been able to refute the evidence used by the Commission to prove, first, the existence of the infringements and, second, the control of parent companies over the subsidiaries which were the direct perpetrators of the infringements.

312 It is clear from examining the first plea, alleging breaches of the rules on limitation, that the Commission, in the contested decision, proved to the requisite legal standard the existence of the infringements.

313 In that regard, the applicants did not dispute their participation in the AC-Treuhand meetings during the three infringement periods and the Commission proved to the requisite legal standard the anti-competitive object of the meetings, such that it is impossible to see how the applicants could have better verified whether anti-competitive discussions took place in the presence of essential witnesses or contested the Commission's interpretations of the handwritten notes on which the Commission relied or indeed proposed alternative explanations of the evidence relied on by the Commission.

314 Furthermore, in respect of the facts which the applicants could have 'gather[ed] ... to rebut the presumption of parental liability', it is clear that the applicants merely invoke the death of a member of the management board of Akcros.

315 In that regard, it should be noted that the prevailing principle under EU law is that evidence may be freely adduced and that the only relevant criterion for the purpose of assessing the evidence adduced relates to its credibility (judgment of 25 January 2007 in Salzgitter Mannesmann v Commission, C-411/04 P, ECR, EU:C:2007:54, paragraph 45).

316 Specifically as regards oral evidence, it has been held already that this type of evidence plays only a minor role in the administrative phase of the Commission's investigation (judgment in Salzgitter Mannesmann v Commission, cited in paragraph 314 above, EU:C:2007:54, paragraph 42).

317 Therefore, it must be pointed out that, in the absence of any opportunity to gather sworn testimony during the administrative phase of the investigation and, in the event that the member of the management board of Akcros had wished to testify, that testimony would have had less probative value, and it could not therefore have been used to effectively rebut the incriminating evidence available to the Commission and to which it referred in the contested decision.

318 Accordingly, the Court must reject the applicants' plea by which they seek annulment of the contested decision for breach of the principle of administrative diligence and the principle that an action must be brought within a reasonable period.

B - The second plea, in so far as it is raised to have the contested decision varied

319 In their second plea, alleging breach of the principle of administrative diligence and the principle that an action must be brought within a reasonable period, the applicants claim, in the alternative, that the contested decision should be varied, that is to say that the amount of the fines imposed on them should be reduced.

1. Arguments of the parties

320 The applicants maintain that, even if the Court were to hold that the Commission's breaches of the principle of administrative diligence and the principle that an action must be brought within a reasonable period did not result in a breach of their rights of defence, such that that plea cannot justify the annulment of the contested decision in full, the Court should take those breaches into account and significantly reduce, in the exercise of its unlimited jurisdiction, the amount of the fines imposed, or at least reduce them by 1%, as the Commission did in the contested decision for all the other undertakings.

321 In that regard, they maintain that, by not having granted them a reduction of 1%, in breach of the principle of equal treatment, the Commission appears to have penalised them, in a discriminatory manner, for having asserted their rights in the Akzo judicial proceedings, which is contrary to the principle of effective judicial protection and deters undertakings involved in other cases from also asserting their rights.

322 The Commission contends that the reductions applied were a means of compensating the other undertakings, which had had to await the outcome of the Akzo judicial proceedings and which were in a different position from the applicants, in that the applicants had instigated the Akzo judicial proceedings. From a practical point of view, moreover, it is clearly implausible to suggest that the failure to grant an exceptional reduction of 1% of the amount of the penalty to the applicants in the present case would in any way be a deterrent on the willingness of other applicants in the same position to exercise their rights in other cases.

2. Findings of the Court

323 In their second plea, alleging breach of the principle of administrative diligence and the principle that an action must be brought within a reasonable period, the applicants claim, in the alternative, that the contested decision should be varied, that is to say that the amount of the fines imposed on them should be reduced.

324 In that regard, it should be recalled that, if there is no infringement of the rights of the defence resulting from the duration of the administrative procedure, a breach of the principle that an action must be brought within a reasonable period may lead the Court to reduce the amount of the fines imposed in the exercise of its unlimited jurisdiction (judgment of 6 February 2014 in AC-Treuhand v Commission, T-27/10, ECR, under appeal, EU:T:2014:59, paragraph 278).

325 In the present case, it is clear that the Commission does not contest the excessive duration of the administrative procedure, having itself reduced, in the contested decision, the amount of the fines imposed on all the undertakings involved, with the exception of the applicants.

326 To justify that difference in treatment, the Commission submits that there was a difference in objectively comparable situations, in that, unlike the other undertakings, the applicants were responsible for instigating the Akzo judicial proceedings.

327 That justification cannot be accepted.

328 Irrespective of whether other undertakings would be deterred from exercising their rights to bring judicial proceedings while they are involved in a Commission investigation for infringement of competition rules, the Commission's argument is incompatible with the principle of effective judicial protection.

329 Therefore, by having granted to all other undertakings involved a reduction in the amount of the fines imposed due to the length of the administrative procedure, but not to the applicants solely on account of the Akzo judicial proceedings, as is apparent from recitals 771 and 772 of the contested decision, the Commission marred that decision with unjustified unequal treatment.

330 Accordingly, in the exercise of its unlimited jurisdiction, the Court considers that the amount of the fines imposed on the applicants must be reduced by 1%.

331 Therefore, the total amount of fines imposed in Article 2, points 1 to 7 and 18 to 24, namely EUR 40.6 million for Akzo Nobel and EUR 12 002 000 for Akcros is reduced to EUR 40.194 million for Akzo Nobel and EUR 11 881 980 for Akcros.

III - The third plea, alleging breach of the rights of the defence

332 In their third plea, the applicants claim, independently of the second plea alleging breach of the principle of administrative diligence and the principle that an action must be brought within a reasonable period, that their rights of defence were breached.

333 In essence, the third plea is composed of two parts.

334 By the first part of the third plea, the applicants maintain that the Commission, in breach of their rights of defence, refused to communicate to them certain exculpatory material in the file and, by the second part of the third plea, that the Commission referred, in the contested decision, to inculpatory material which was not mentioned in the statement of objections.

A - Arguments of the parties

1. The first part, alleging refusal to communicate exculpatory material

335 The applicants claim that, before publication of the contested decision, they requested access to third party replies to the statement of objections when it became clear during the oral hearing that a large number of the other parties had supported the applicants' conclusion that the infringement had ceased in 1996/1997. It was therefore in the interest of the applicants' defence to have sight of those replies, in particular in relation to a statement by Mr S., AC-Treuhand's former employee. Despite several requests, however, the applicants were never given access to that statement.

336 The applicants also request the Court to order the production of Mr S.'s statement.

337 The Commission contends that the applicants make general and speculative references to the potentially exculpatory character of the other parties' replies to the statement of objections, whereas the only new elements that must be communicated are those which are shown to be of a clearly inculpatory or exculpatory character.

338 In any event, it is inappropriate to regard the materials in question as exculpatory, since the statements submitted to the Commission by parties do not exculpate another party merely because they make the same arguments as the other party.

339 In addition, the materials in question are not part of the Commission's investigative file, since they were supplied to the Commission after it had issued the statement of objections.

340 In any event, the applicants have not shown how access to the materials in question could have affected the outcome of the administrative procedure.

341 Last, Mr S.'s statement is vague, general and unsupported by any contemporaneous material, that statement being dated 23 May 2009. It therefore amounts only to a bare assertion and could not have assisted the applicants to exculpate themselves. In any event, the essential part of the contents of that statement was distributed to all the participants in a hearing, including the applicants, and was therefore known to the applicants.

2. The second part of the third plea, concerning inculpatory material found in the contested decision, but not mentioned in the statement of objections

342 The applicants maintain that in the contested decision, the Commission relies on several documents to which it did not refer in the statement of objections.

343 In particular, there was a statement by Baerlocher in response to the statement of objections, in which it alters its position as to the date on which the infringement ceased.

344 The Commission denies that the applicants were unable to comment upon Baerlocher's statements.

B - Findings of the Court

345 In their third plea, the applicants claim that their rights of defence were breached, alleging, in the first part of the third plea, that the Commission refused to communicate to them certain exculpatory material in the file, and, in the second part of the third plea, that the Commission referred, in the contested decision, to inculpatory material which was not mentioned in the statement of objections.

1. The relevant case-law

346 In that regard, it should be pointed out, first, that the rights of the defence are fundamental rights forming an integral part of the general principles of law whose observance the Court ensures (see judgment of 25 October 2011 in Solvay v Commission, C-110/10 P, ECR, EU:C:2011:687, paragraph 47 and the case-law cited).

347 Observance of the rights of the defence in a proceeding before the Commission, the aim of which is to impose a fine on an undertaking for infringement of the competition rules, requires that the undertaking under investigation must have been afforded the opportunity to express its views effectively on the truth and relevance of the facts alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty. Those rights are referred to in Article 41(2)(a) and (b) of the Charter of Fundamental Rights of the European Union (see judgment in Solvay v Commission, cited in paragraph 346 above, EU:C:2011:687, paragraph 48 and the case-law cited).

348 As a corollary of the rights of the defence, the right of access to the file means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation that might be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information (see judgment in Solvay v Commission, cited in paragraph 346 above, EU:C:2011:687, paragraph 49 and the case-law cited).

349 Infringement of the right of access to the Commission's file during the procedure prior to adoption of a decision can, in principle, cause the decision to be annulled if the rights of defence of the undertaking concerned have been infringed (see judgment in Solvay v Commission, cited in paragraph 346 above, EU:C:2011:687, paragraph 50 and the case-law cited).

350 It must also be noted that the mere fact that an undertaking, involved in an administrative procedure initiated due to infringement of the competition rules, puts forward substantially the same arguments as another undertaking involved in that procedure with regard to the infringement committed cannot constitute exculpatory evidence (see, to that effect, judgment of 27 September 2006 in Jungbunzlauer v Commission, T-43/02, ECR, EU:T:2006:270, paragraphs 353 and 355).

351 Finally, it must be recalled that the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document (judgment of 7 January 2004 in Aalborg Portland and Others v Commission, 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, ECR, EU:C:2004:6, paragraph 71).

352 If there was other documentary evidence of which the parties were aware during the administrative procedure that specifically supports the Commission's findings, the fact that an incriminating document not communicated to the person concerned is inadmissible as evidence would not affect the validity of the objections upheld in the contested decision (judgment in Aalborg Portland and Others v Commission, cited in paragraph 351 above, EU:C:2004:6, paragraph 72).

353 It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence (judgments in Aalborg Portland and Others v Commission, cited in paragraph 351 above, EU:C:2004:6, paragraph 73, and Solvay v Commission, cited in paragraph 346 above, EU:C:2011:687, paragraphs 51 and 52).

354 The applicants' third plea must be assessed in the light of those considerations.

2. Exculpatory evidence

355 By the first part of their third plea, the applicants argue that the Commission, in breach of their rights of defence, refused to communicate to them exculpatory evidence.

356 In the present case, first, it is clear that, with the exception of Mr S.'s statement, the applicants do not specify which documents are concerned, except by reference to the possibility that they contain something about the date when the infringements ceased, namely, according to the applicants, 'around 1996/1997'.

357 Second, it must be held that the essential role played by Mr S. in both infringements, which is a constant factor, makes the probative value of his statement in support of the applicants' claims in the present case more than suspect.

358 The first part of the third plea must therefore be rejected, without there being any need to respond to the applicants' request for a measure of organisation of procedure seeking an order for the production of Mr S.'s statement.

3. Inculpatory evidence

359 By the second part of the third plea, the applicants argue that the Commission, in breach of their rights of defence, relied, in the contested decision, on inculpatory evidence which was not included in the statement of objections.

360 In rejecting the second part of the third plea, suffice it to recall, as has been held in the present judgment, that the Commission, in the contested decision, proved to the requisite legal standard the existence of the infringements on the basis of evidence to which the applicants do not claim to have been denied access or on which they were not able to present their point of view.

361 Consequently, the second part of the third plea, by which the applicants claim that their rights of defence were breached due to a refusal to communicate inculpatory evidence, must be rejected, and, therefore, the third plea as a whole must be rejected.

IV - The fourth plea, alleging errors in attributing the infringements and the fines

362 In their fourth plea, the applicants claim that there were errors of attribution.

363 In essence, the fourth plea is composed of two parts, the first alleging errors in attributing the infringements and the second alleging errors in attributing the fines.

A - The first part, alleging errors in attributing the infringements

364 In the first part of the fourth plea, alleging errors in attributing the infringements, the applicants rely on arguments relating to (i) the first infringement period and (ii) the second infringement period.

1. The attribution of the infringements during the first infringement period

365 For the first infringement period, the Commission considered, in the contested decision, that the companies held indirectly by Akzo, which became Akzo Nobel, had participated directly in the infringements, namely Akzo GmbH, for the infringement relating to tin stabilisers, and Akzo BV, for the infringement relating to the ESBO/esters sector (recitals 512 to 519 of the contested decision).

a) Arguments of the parties

366 According to the applicants, in so far as the infringement relating to the tin stabilisers sector is concerned, Akzo GmbH did not produce tin stabilisers during the first infringement period since the company which produced tin stabilisers and in which the company which Akzo GmbH succeeded had a stake, was Tinstab. Its shareholding in Tinstab between 1987 and 1993 (at first 15%, then, 'later', 49%) was not sufficient for it to be regarded as having been able to exercise decisive influence over Tinstab and the Commission adduces no evidence to show that Akzo GmbH had in fact exercised decisive influence over Tinstab during the first infringement period. In any event, Akzo GmbH cannot be held liable for Tinstab's conduct, since Tinstab was a structural joint venture.

367 In so far as the infringement relating to the ESBO/esters sector is concerned, the applicants further maintain that the Commission has not established that Akzo BV participated directly in the infringement, so that, ipso jure, Akzo Nobel cannot be held liable either.

368 The Commission refers to recitals 524, 525 and 527 of the contested decision, pointing out that the applicants do not deny that Akzo GmbH was separately represented at cartel meetings during the first infringement period and was regarded as a separate and independent participant from Tinstab.

369 The Commission also maintains that the contemporaneous evidence clearly shows that the representatives from Akzo BV attended cartel meetings in the ESBO/esters sector (recital 512 of the first contested decision). The Commission was therefore correct to find that Akzo BV had participated directly in the infringement during the first infringement period.

b) Findings of the Court

370 In the first part of the fourth plea, alleging errors in attributing the infringements, the applicants rely, in respect of the first infringement period, on arguments directed separately at the infringement relating to tin stabilisers and at the infringement relating to the ESBO/esters sector.

The infringement relating to tin stabilisers

371 As regards, in the first infringement period, the infringement relating to tin stabilisers, the applicants claim that Akzo GmbH did not produce heat stabilisers, that activity being entrusted to Tinstab, a company which Akzo GmbH did not control.

372 That argument cannot be accepted.

373 The applicants do not deny that representatives from Akzo GmbH participated in the AC-Treuhand meetings during the first infringement period.

374 Nor does it deny that Tinstab was Akzo GmbH's supplier over that period.

375 Finally they do not deny that Akzo GmbH marketed tin stabilisers during that period.

376 Thus, the argument that Akzo GmbH did not control Tinstab cannot succeed, since Akzo GmbH was not held liable owing to its control of Tinstab but because Akzo GmbH itself participated in the infringement, regardless of whether or not it manufactured tin stabilisers, given that it is undisputed that Akzo GmbH marketed them.

377 Therefore, the Commission was correct, in the contested decision, to attribute to Akzo GmbH the infringement relating to tin stabilisers during the first infringement period.

378 Moreover, it should also be observed that the applicants do not claim that the companies to which Akzo Nobel succeeded did not control Akzo GmbH.

379 Accordingly, the Commission was correct, in the contested decision, to attribute to Akzo Nobel the infringement relating to tin stabilisers during the infringement period.

The infringement relating to the ESBO/esters sector

380 As regards, in the first infringement period, the infringement relating to the ESBO/esters sector, the applicants maintain that the Commission has not established that Akzo BV participated directly in the infringement, such that, ipso jure, Akzo Nobel cannot be held liable either.

381 As is clear from paragraphs 146, 149, 150 and 151 above and recitals 512, 182 and 200 of the contested decision, it must be held that the Commission established to the requisite legal standard that the representatives from Akzo BV participated in the AC-Treuhand meetings during the first infringement period, which the applicants do not dispute.

382 Therefore, the Commission was correct, in the contested decision, to attribute to Akzo BV the infringement relating to the ESBO/esters sector during the infringement period.

383 Moreover, it should also be observed that the applicants do not claim that the companies to which Akzo Nobel succeeded did not control Akzo BV.

384 Accordingly, the Commission was correct, in the contested decision, to attribute to Akzo Nobel the infringement relating to the ESBO/esters sector during the infringement period.

385 Therefore, the first part of the fourth plea must be rejected in so far as it relates to the first infringement period.

2. The attribution of the infringements during the second infringement period

386 For the second infringement period, the Commission considered that the infringements had been committed by the Akcros partnership whose capital was then owned in equal shares by Akzo Nobel and Elementis (recitals 563 and 564 of the contested decision).

a) Arguments of the parties

387 According to the applicants, the Commission committed both errors of law and errors of fact.

388 In the first place, the Commission is wrong to rely on the judgment in Avebe (judgment of 27 September 2006 in Avebe v Commission, T-314/01, ECR, EU:T:2006:266) and to disregard the fundamental distinction between 'cooperative' joint ventures, at issue in the judgment in Avebe, and 'structural' joint ventures, at issue in the present case.

389 The applicants maintain that, in the 1993 merger decision the Commission approved the proposal to set up the Akcros partnership as a structural joint venture, being of the view that 'the [joint venture would] be independent of its parents for its commercial activity, making use of its own distribution and marketing arrangements' and that it would 'perform on a lasting basis all the functions of an autonomous economic entity' (the 1993 merger decision, recitals 9 and 13).

390 Accordingly, the Commission cannot now take the view that the joint venture Akcros partnership was not autonomous, without disregarding its decisional practice in other cases.

391 In addition, the Commission's reasoning in the present case means that 'Akzo Nobel and Elementis' constituted one and the same undertaking during the second infringement period. Yet, if Akzo Nobel and the Akcros partnership constituted one undertaking and if the Akcros partnership was one undertaking encompassing 'Harcros/Elementis', 'Akzo Nobel and Elementis' should be regarded as a single undertaking, quod non.

392 In the second place, the Commission made an error of fact in attributing 'liability for ... Akcros ... to Pure Chemicals Ltd (later Akcros Chemicals Ltd), the partner to the [United Kingdom] partnership within ... Akcros' and in focusing on the United Kingdom partnership.

393 The Commission denies having 'based its reasoning' on the judgment in Avebe and refers to recitals 546 to 564 of the contested decision, from which it is clear that the Commission reached its conclusion after carrying out a proper analysis of the legal, economic and organisational links between the Akcros partnership and its parent companies.

394 The applicants are also wrong to contend that the full-function status of the Akcros partnership excuses its parent companies of any liability. If the parent companies were not held liable for the acts of a full-function joint venture they would be able to evade any liability by choosing to establish an undertaking on that basis, irrespective of the existence of joint management power and joint control.

395 The 1993 merger decision is ineffective in the present case, since the Commission's approval of a concentration is clearly not intended to confer immunity on the parent companies in relation to subsequent infringements of Article 81 EC committed by the joint venture under the decisive influence of its parent companies.

396 In any event, the Commission adds, referring to recital 546 et seq. of the contested decision, that Akzo Nobel exercised decisive influence over the Akcros partnership with Elementis.

397 Last, the Commission contends, referring to recitals 538 and 539 of the contested decision, that it was the representatives from the Akcros partnership that attended the AC-Treuhand meetings and any profits derived from the cartel would have been realised by that partnership and would have ended up with the partners.

398 In their answer to a question from the Court on the implications for the present case of the judgment in Siemens, cited in paragraph 81 above (EU:C:2014:256), the applicants withdrew their arguments in paragraphs 102 to 114 of their application, as summarised in paragraphs 387 to 392 above. The Court took formal note of that withdrawal.

b) The relevant case-law

399 First, it must be recalled that it is the Court of Justice's settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see judgment of 26 September 2013 in The Dow Chemical Company v Commission, C-179/12 P, EU:C:2013:605, paragraph 52 and the case-law cited).

400 In such a situation, since the parent company and its subsidiary form part of a single economic unit and thus form a single undertaking for the purpose of Article 81 EC, the Commission may address a decision imposing fines to the parent company without being required to establish its individual involvement in the infringement (see judgment in The Dow Chemical Company v Commission, cited in paragraph 399 above, EU:C:2013:605, paragraph 53 and the case-law cited).

401 The Court of Justice stipulates that account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (see judgment in The Dow Chemical Company v Commission, cited in paragraph 399 above, EU:C:2013:605, paragraph 54 and the case-law cited).

402 It should be noted in that regard that the principle that it is necessary to establish whether the parent company actually exercised decisive influence over its subsidiary applies only where the subsidiary is not wholly owned by its parent company. According to settled case-law of the Court of Justice, where the entire capital of the subsidiary is owned, there is no longer any requirement for that to be established since, in those circumstances, there is a presumption of decisive influence on the part of the parent company, which has the burden of rebutting that presumption (see judgment in The Dow Chemical Company v Commission, cited in paragraph 399 above, EU:C:2013:605, paragraph 56 and the case-law cited).

403 Where two parent companies each have a 50% shareholding in the joint venture which committed an infringement of the rules of competition law, it is only for the purposes of establishing liability for participation in the infringement of that law and only in so far as the Commission has demonstrated, on the basis of a body of factual evidence, that both parent companies did in fact exercise decisive influence over the joint venture, that those three entities can be considered to form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC (see judgment in The Dow Chemical Company v Commission, cited in paragraph 399 above, EU:C:2013:605, paragraph 58 and the case-law cited).

404 It is in principle for the Commission to demonstrate, on the basis of a body of factual evidence, including inter alia any management power one of the entities may have over the other, that the parent company does in fact exercise decisive influence over its subsidiary (see judgment in The Dow Chemical Company v Commission, cited in paragraph 399 above, EU:C:2013:605, paragraph 67).

405 The Court must assess, in the light of those considerations, the first part of the fourth plea, alleging errors in attributing to Akzo Nobel infringements committed by the Akcros partnership during the second infringement period.

c) Findings of the Court

406 In the first part of the fourth plea, alleging errors in attributing the infringements, the applicants submit, in respect of the second infringement period, that the Commission wrongly attributed to Akzo Nobel infringements committed by the Akcros partnership.

407 In that regard, it should be noted, at the outset, that the fact that in the 1993 merger decision approving the proposed creation of the Akcros partnership the Commission was able to take the view that the joint venture would be independent of the parent company for its commercial activity and perform on a lasting basis all the functions of an autonomous economic entity did not prevent the Commission subsequently finding that the parent companies had in fact exercised decisive influence on that partnership. Thus, the 1993 merger decision on which the applicants rely is not sufficient in itself to show that the Akcros partnership had acted independently.

408 Consequently, the applicants' argument on this point cannot succeed.

409 The applicants also submit that Akzo Nobel exerted no decisive influence on the Akcros partnership.

410 In the present case, it is clear that during the second infringement period, Akzo, which became Akzo Nobel, held 50% of the shares of the Akcros partnership.

411 The Commission was therefore entitled to hold Akzo Nobel liable for the behaviour of the Akcros partnership in the light of and in accordance with the case-law cited in paragraph 399 above.

412 It is clear from recitals 546 to 564 of the contested decision that Akzo Nobel exercised control, jointly with Elementis, over the Akcros partnership.

413 Thus, in recitals 554 and 555 of the contested decision, the Commission found that the Governing Board of the Akcros partnership, whose members were appointed, directly or indirectly, and equally by Akzo Nobel and Elementis, took the political and operational decisions for the Akcros partnership.

414 In recitals 560 and 561 of the contested decision, the Commission stated that the members of the Governing Board of the Akcros partnership who had been appointed by Akzo Nobel and Elementis were individuals occupying important management positions within Akzo Nobel or Elementis.

415 In recital 563 of the contested decision, the Commission pointed to the fact that Elementis agreed with Akcros in 1998 to sell its shareholding in the Akcros partnership to Pure Chemicals, a company wholly-owned by Akzo Nobel.

416 That conclusion is not undermined by the applicants' arguments in paragraphs 115 and 116 of their application, since they do not call into question the Commission's demonstration that Akzo Nobel in fact exercised decisive influence on the Akcros partnership jointly with Elementis during the second infringement period.

417 Therefore, the Court must reject the first part of the fourth plea, alleging errors in attributing the infringements, in respect of the second infringement period, and, therefore, the first part of the fourth plea as a whole.

B - The second part, alleging errors in attributing the fines

418 In the second part of the fourth plea, alleging errors in attributing the fines, the applicants maintain that the Commission was wrong, in the contested decision, to attribute the fines to them jointly and severally with Elementis.

1. Arguments of the parties

419 The applicants claim that they cannot be held liable for Elementis's conduct or for fines for the second infringement period, during which they and Elementis each held 50% of the capital of the Akcros partnership, since the Commission is under an obligation to determine the fine to be attributed separately to each undertaking concerned. The applicants therefore reject the Commission's argument that they should be held jointly and severally liable with Elementis.

420 The Commission recalls that it was found that Akzo Nobel and Elementis had each exercised decisive influence over the Akcros partnership and considers, therefore, that they were rightly held jointly and severally liable for Akcros's participation in the infringements.

421 The applicants maintain that, on the assumption that the Court were to consider that Akzo Nobel was liable (in part) for the Akcros partnership's conduct, the Commission erred in any event in holding Akzo Nobel jointly and severally liable with Elementis. The two groups of companies are separate undertakings which exercised joint control of a full-function joint venture for five years. They are therefore individually liable for their respective 50% shares in the joint venture.

422 It would be incorrect or unfair for the Commission to require Akzo Nobel to pay the entire fine if Elementis became insolvent or was unable to pay its share of the fine. That would amount to 'double counting' of Akzo Nobel's liability. Since the Commission itself acknowledges that fines are subject to division between the parties, the Commission cannot therefore give rise to uncertainty between the parties with respect to enforcement of the contested decision, when payment of the fines will be required, since the Commission's ultimate aim is to put an end to collusive conduct and not to collect fines.

2. Findings of the Court

423 In the second part of the fourth plea, alleging errors in attributing the fines, the applicants maintain that the Commission was wrong, in the contested decision, to attribute the fines to them jointly and severally with Elementis for the second infringement period, imposing on them an obligation to pay all the fines owed jointly and severally by them and Elementis.

424 In order to reject the second part of the fourth plea, alleging errors in attributing the fines, first, suffice it to note that it has been held, in paragraphs 406 to 417 above, that the Commission was entitled, in the contested decision, to attribute to Akzo Nobel and Elementis the infringement committed by the Akcros partnership during the second infringement period, since, during that period, those companies constituted one and the same undertaking, for the purposes of EU competition law.

425 Where several persons may be held personally liable for participation in an infringement committed by one and the same undertaking, for the purposes of EU competition law, they may be regarded as jointly and severally liable for that infringement (see, to that effect, judgment in Siemens, cited in paragraph 81 above, EU:C:2014:256, paragraphs 50 and 51).

426 Second, while it follows from Article 23(2) of Regulation No 1/2003 that the Commission is entitled to hold a number of companies jointly and severally liable for payment of a fine, in so far as they formed part of the same undertaking, it is not possible to conclude on the basis of either the wording of that provision or the objective of the joint and several liability mechanism that that power to impose penalties extends to the power to determine the shares to be paid by those held jointly and severally liable in the context of their internal relationship (judgment in Siemens, cited in paragraph 81 above, EU:C:2014:256, paragraph 58).

427 On the contrary, the objective of the joint and several liability mechanism is to constitute an additional legal device available to the Commission to strengthen the effectiveness of the action taken by it for the recovery of fines imposed for infringement of the competition rules, since that mechanism reduces for the Commission, as creditor of the debt represented by such fines, the risk of insolvency, which is part of the objective of deterrence pursued generally by competition law (judgment in Siemens, cited in paragraph 81 above, EU:C:2014:256, paragraph 59).

428 The determination, in the context of the internal relationship of those held jointly and severally liable for payment of a fine, of the shares each of them is required to pay does not pursue that dual objective. That is an issue to be resolved at a later stage and, in principle, the Commission no longer has any interest in the matter, where the fine has been paid in full by one or more of those held liable (judgment in Siemens, cited in paragraph 81 above, EU:C:2014:256, paragraph 60).

429 Moreover, neither Regulation No 1/2003 nor EU law in general contain rules for the resolution of such a dispute, which concerns the internal allocation of the debt for the payment of which the companies concerned are held jointly and severally liable (judgment in Siemens, cited in paragraph 81 above, EU:C:2014:256, paragraph 61).

430 In those circumstances, where there is no contractual agreement as to the shares to be paid by those held jointly and severally liable for payment of the fine, it is for the national courts to determine those shares, in a manner consistent with EU law, by applying the national law applicable to the dispute (judgment in Siemens, cited in paragraph 81 above, EU:C:2014:256, paragraph 62).

431 Therefore, the Court must reject the second part of the fourth plea, alleging errors in attributing the fines, as well as the fourth plea, in its entirety, alleging errors of attribution.

V - The fifth plea, alleging incorrect calculation of the amount of the fines

432 In the fifth plea, the applicants maintain that, in the contested decision, the Commission erred in the calculation of the amount of the fines imposed.

A - Arguments of the parties

433 The applicants maintain that the Commission wrongly attributed the entire turnover of Akcros to both Akzo Nobel and Elementis.

434 In application of point 13 of the 2006 Guidelines, the Commission used, for the applicants, the value of sales for 1999, that is to say EUR 7 900 000 for tin stabilisers, and EUR 10 700 000 for the ESBO/esters sector (recital 698 and footnote 789 of the contested decision) for the entire period of the alleged infringements (recital 717 of the first contested decision).

435 Those values represent the combined business activities of Elementis and Akzo Nobel within Akcros, Akzo having acquired in 1998 the half of the Akcros partnership shares held by Elementis. Before 1998 Akzo Nobel owned only half of the shareholding of the Akcros partnership; the Commission ought therefore to have adjusted the value of the sales used in order not to double count the turnover of Akcros.

436 Accordingly, the Commission wrongly calculated the basic amount of the fines for the second infringement period and, a fortiori, for the first infringement period. For the first infringement period the Commission imposed fines on the applicants and Elementis separately, while using in each case the applicants' turnover for 1999 (see Article 2, points 4 and 6, of the contested decision).

437 According to the applicants, the Commission ought to have done as it did in the judgment in Avebe, where it divided the turnover of the joint venture by two and attributed only half to each of the two parent companies (Commission Decision of 19 March 2002 in Case COMP/36.756 - Sodium Gluconate 1, recitals 383 and 384).

438 The Commission contends that the fines were joint and several and were therefore subject to division between the parties, so that there could be no question of double counting.

439 For the first infringement period, the Commission correctly calculated the amount of the fines on the basis of the sales made by the undertaking during the last full business year of its participation, namely 1999, in accordance with point 13 of the 2006 Guidelines, when the applicants wholly owned Akcros.

B - Findings of the Court

440 In the fifth plea, alleging incorrect calculation of the amount of the fines, the applicants maintain, in essence, that the Commission wrongly attributed the entire turnover of Akcros to both Akzo Nobel and Elementis.

441 In that regard, it must be recalled that, pursuant to point 13 of the 2006 Guidelines in 'determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking's sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA', with the proviso that '[the Commission] will normally take the sales made by the undertaking during the last full business year of its participation in the infringement (hereafter "value of sales")'.

442 In the present case, it is undisputed that the Commission determined the basic amount of the fines on the basis of Akcros's value of sales for 1999, namely the last full business year of the applicants' participation in the infringement, in accordance with point 13 of the 2006 Guidelines.

443 It is equally undisputed that, during the third infringement period, Akcros was controlled, indirectly but wholly, by Akzo Nobel.

444 Thus, as regards, first, the calculation of the amount of the fines for the third infringement period, the applicants' fifth plea, which covers three infringement periods, as they confirmed in their reply to a question from the Court to that end, cannot be accepted.

445 As regards, next, the first infringement period, it is clear that the applicants did not make any reference, either before the Commission during the administrative procedure or in their written submissions before the Court, to a substantial change in the turnover between that period and the year 1999 used by the Commission in the contested decision.

446 As regards, finally, the second infringement period, it is clear that the applicants' argument is based on a false premiss, since the Commission did not double the value of Akcros's sales which it took into account in the contested decision, but only imposed on Elementis and Akzo Nobel, jointly and severally, fines in respect of the conduct of the Akcros partnership with which, the Commission held, they constituted an undertaking within the meaning of Article 81 EC.

447 In other words, the applicants' argument implies that the Commission could seek, in the first place, from Akzo Nobel the payment of fines imposed jointly and severally on Akzo Nobel and Elementis and, in the second place, the same payment from Elementis, which would be contrary to the joint and several liability mechanism and which, in any event, is in no way apparent from the contested decision.

448 Consequently, the fifth plea must be rejected.

Costs

449 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings.

450 In the present case, the Court has granted in part the form of order sought by the applicants.

451 Therefore and in the light of the circumstances of the present case, it is appropriate to order the Commission to bear two fifths of the applicants' costs and three fifths of its own costs. The applicants are to bear three fifths of their own costs and two fifths of the Commission's costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1. Annuls Article 2, points 4, 6, 21 and 23, of 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/38.589 - Heat Stabilisers) in respect of the fines imposed on Akzo Nobel Chemicals GmbH and on Akzo Nobel Chemicals BV;

2. Reduces the total amount of fines imposed in Article 2, points 1 to 7, and 18 to 24, of Decision C(2009) 8682 final to EUR 40.194 million for Akzo Nobel NV and EUR 11 881 980 for Akcros Chemicals Ltd;

3. Dismisses the action as to the remainder;

4. Orders the European Commission to bear two fifths of the costs of Akzo Nobel, Akzo Nobel Chemicals GmbH, Akzo Nobel Chemicals BV and Akcros Chemicals and to pay three fifths of its own costs. Akzo Nobel, Akzo Nobel Chemicals GmbH, Akzo Nobel Chemicals BV and Akcros Chemicals, shall bear three fifths of their own costs and two fifths of the Commission's costs.