GC, 7th chamber, July 11, 2019, No T-530/15

Background to the dispute

1 The first applicant, Huhtamäki Oyj is the ultimate holding company of a group ('the Huhtamäki Group') which manufactures and supplies a variety of food packaging products. The second applicant, Huhtamaki Flexible Packaging Germany GmbH & Co. KG, is an indirect subsidiary of the first applicant.

2 On 18 March 2008, the undertaking formed by the group whose parent company is Linpac Group Ltd ('Linpac'), a group specialised in the supply of various food packaging products, filed a leniency application with the European Commission under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; 'the Leniency Notice').

3 On 4 and 6 June 2008 the Commission, acting under Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), carried out unannounced inspections at the premises of several companies operating in the retail food packaging sector.

4 Following the inspections, six leniency applications were submitted under the Leniency Notice.

5 On 21 September 2012 the Commission adopted a statement of objections, which was notified, inter alia, to the applicants. A hearing was held from 10 to 12 June 2013.

6 On 24 June 2015 the Commission adopted Decision C(2015) 4336 final relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39563 - Retail food packaging) ('the contested decision').

7 By the contested decision, the Commission found that companies working in the retail food packaging sector had been involved in five separate infringements during periods between 2000 and 2008. The five infringements were delineated on the basis of their geographic scope: Italy, South-West Europe ('SWE'), North-West Europe ('NWE'), Central and Eastern Europe, and France.

8 The goods covered by the contested decision are retail polystyrene food packaging trays and, with regard to the cartel in NWE, rigid polypropylene plastic trays.

9 The present case relates to only three of the five infringements mentioned in paragraph 7 above: in NWE, SWE and France.

10 The contested decision contains the following provisions:

'Article 1

...

2. The following undertakings infringed Article 101 [TFEU] by participating, for the periods indicated, in a single and continuous infringement, which consisted of several separate infringements, in the foam trays for retail food packaging sector and covering the territory of Spain, from the beginning of the infringement, and Portugal, from 8 June 2000 (jointly referred to as "SWE"):

...

(d) Ono Packaging Portugal S.A. and [Huhtamäki], from 7 December 2000 to 18 January 2005;

...

3. The following undertakings infringed Article 101 [TFEU] and Article 53 of the EEA Agreement by participating, for the periods indicated, in a single and continuous infringement, which consisted of several separate infringements, in the foam and rigid trays for retail food packaging sector and covering the territory of Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands, Norway and Sweden (jointly referred to as "NWE"):

...

(c) [Huhtamaki Flexible Packaging Germany] from 13 June 2002 to 20 June 2006, [Huhtamäki] from 1 January 2003 to 20 June 2006;

...

5. The following undertakings infringed Article 101 [TFEU] by participating, for the periods indicated, in a single and continuous infringement, which consisted of several separate infringements in the foam trays for retail food packaging sector and covering the territory of France:

...

(d) Coveris Rigid (Auneau) France SAS and [Huhtamäki], from 3 September 2004 to 24 November 2005;

...

Article 2

...

3. For the infringement referred to in Article 1.3, the following fines are imposed:

...

(c) Huhtamaki Flexible Packaging Germany GmbH & Co. KG and [Huhtamäki], jointly and severally: ... EUR 10 727 000;

(d) [Huhtamaki Flexible Packaging Germany]: ... EUR 79 000;

...

5. For the infringement referred to in Article 1.5, the following fines are imposed:

...

(d) Coveris Rigid (Auneau) France SAS and [Huhtamäki], jointly and severally; ... EUR 4 756 000;

...'

Procedure and forms of order sought

11 By application lodged at the Court Registry on 11 September 2015, the applicants brought the present action.

12 Upon hearing the report of the Judge-Rapporteur, the General Court (Seventh Chamber) decided to open the oral procedure. By way of measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the General Court invited the Commission, on the one hand, to answer a written question and, on the other, to produce a document. The Commission replied to the written question and produced the requested document.

13 By a measure of inquiry of 5 September 2017, the Court also ordered the Commission, on the basis of Articles 91 and 92 of the Rules of Procedure, to provide it with the transcript of certain oral statements made by Linpac and the undertaking formed by the group whose parent body is Vitembal Holding SAS ('Vitembal') in the context of their applications under the Leniency Notice. The Commission complied with that measure of inquiry within the prescribed period.

14 The parties presented oral argument and gave replies to the Court's questions at the hearing on 13 October 2017.

15 The applicants claim that the Court should:

- annul Article 1(2) of the contested decision, in so far as it finds that the first applicant infringed Article 101 TFEU by participating, for the period indicated at Article 1(2)(d) of that decision, in a single and continuous infringement which consisted of several separate infringements, in the foam trays for retail food packaging sector, in Spain, from the beginning of the infringement, and in Portugal, from 8 June 2000;

- annul Article 1(3) of the contested decision, in so far as it finds that the applicants infringed Article 101 TFEU and Article 53 EEA by participating, for the periods indicated at Article 1(3)(c) of that decision, in a single and continuous infringement which consisted of several separate infringements, in the foam and rigid trays for retail food packaging sector in Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands, Norway and Sweden;

- annul Article 1(5) of the contested decision, in so far as it finds that the first applicant infringed Article 101 TFEU by participating, for the period indicated at Article 1(5)(d) of that decision, in a single and continuous infringement which consisted of several separate infringements, in the foam trays for retail food packaging sector in France;

- annul Article 2(3) of the contested decision in so far as it imposes fines in a total amount of EUR 10 806 000 on the applicants;

- annul Article 2(5) of the contested decision in so far as it imposes a fine in an amount of EUR 4 756 000 on the first applicant;

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

- order the Commission to pay the costs.

16 The Commission contends that the Court should:

- dismiss the application;

- order the applicants to pay the costs.

Law

17 In support of the action, the applicants rely on the following four pleas in law:

- '[infringement by the Commission of] Articles 101 TFEU and 53 EEA as it committed manifest errors in fact and in law, and infringed its duty to state reasons', in finding that the applicants engaged in activities in NWE between 13 June 2002 and 20 June 2006 that can be qualified, when looked at in isolation, respectively, as separate infringements of Articles 101 TFEU and 53 EEA;

- '[infringement by the Commission of] Articles 101 TFEU and 53 EEA, as it committed a manifest error of assessment, and infringed its duty to state reasons', in finding that the applicants participated in a single and continuous infringement in NWE between 13 June 2002 and 20 June 2006;

- infringement by the Commission of the principles of proportionality and equal treatment, its own Guidelines on the setting of fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; 'the 2006 Guidelines'), and the duty to state reasons, by failing to consider, when determining the fine(s) to be imposed on the applicants, individual circumstances which warranted reductions of the fines on the applicants;

- infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 23(2) of Regulation No 1/2003, in finding that the first applicant was jointly and severally liable for the alleged participation of its former subsidiaries in the infringements committed in France and SWE.

Preliminary observations

18 The first two pleas concern the finding, in the contested decision, of the applicants' participation in the infringement in NWE.

19 By the first plea, the applicants dispute, in essence, the Commission's conclusion that the activities in NWE during the infringement period, taken individually, may be classified as separate infringements.

20 By the second plea, the applicants dispute the Commission's conclusion that they were involved in a single and continuous infringement in NWE.

21 In that regard, first of all, it must be recalled that, in Article 1(3) of the contested decision, the Commission held the applicants liable for having participated '... in a single and continuous infringement, which consisted of several separate infringements ...' in NWE.

22 Next, it should be noted that the wording of Article 1(3) of the contested decision, viewed alone, tends to indicate that the Commission takes the view that the applicants participated in the cartel in NWE both in a single and continuous infringement and in separate infringements, which form part of that single and continuous infringement.

23 Admittedly, it is apparent from settled case-law that an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an 'overall plan' because their identical object distorts competition in the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 26 January 2017, Villeroy & Boch v Commission, C 644/13 P, EU:C:2017:59, paragraph 47 and the case-law cited).

24 However, the Commission may not conclude that the undertakings in question participated in a single and continuous infringement constituted by a number of separate infringements. The major feature of the single and continuous infringement lies in the fact that the participants' various actions in that infringement form part of an overall plan, which is absent in the case of separate infringements.

25 The Commission itself acknowledges, in recital 754 of the contested decision, that the classification of certain unlawful conduct as a 'single infringement' or, conversely, a 'separate infringement' affects the penalty which may be imposed, since, in particular, the finding of a single infringement broadens the scope of the infringement and may increase the gravity of the infringement for the purposes of determining the amount of the fine. On the other hand, a number of separate infringements may lead to the imposition of a number of separate fines on the same undertaking, each of those fines being able to reach the cap of 10% of the turnover of the undertaking, as defined in Article 23(2) of Regulation No 1/2003. Since several fines may reach the cap of 10% of the undertaking's total turnover, that would not result in the agreements being classified as a single infringement.

26 It must therefore be held that the wording of Article 1(3) of the contested decision, in so far as it finds that the undertakings listed therein have participated 'in a single and continuous infringement, which consisted of several separate infringements', is, at the very least, ambiguous. However, in accordance with the case-law, the operative part of a Commission decision must be read in the light of its statement of reasons (see order of 10 July 2001, Irish Sugar v Commission, C 497/99 P, EU:C:2001:393, paragraph 15 and the case-law cited).

27 In the present case, it must be observed that recital 729 of the contested decision, which is set out in point 5.3.2.4 of that decision, relating to the conclusions concerning the application of Article 101(1) TFEU and Article 53(1) of the EEA Agreement on the basis of the evidence adduced by the Commission in point 4.3 of that decision, relating to the description of the facts in NWE, states as follows:

'Based on the foregoing, the different collusive elements in this case are considered to form part of an overall scheme to coordinate prices and to maintain the status quo in relation to foam and rigid trays in the NWE. The Commission considers that the behaviour of the parties is to be characterised as a complex infringement consisting of various actions which, in isolation or jointly in this case present all the characteristics of an agreement and/or concerted practice in the sense of Article 101 [TFEU].'

28 In addition, recital 783 to the contested decision, which is set out in point 5.3.3.6 of that decision, relating to the single and continuous infringement, states as follows:

'The facts described in Section 4.3 of this Decision constitute a single and continuous infringement of Article 101(1) [TFEU] and Article 53 of the EEA Agreement in relation to the foam and rigid trays market in NWE. This is notwithstanding that each of the cartel activities described in Section 4.3 and listed in Section 5.3.2.4 could be qualified, when looked at in isolation, as separate infringements of Article 101(1) [TFEU] and Article 53 of the EEA Agreement in relation to each of the eight countries as well as each product (foam trays and rigid trays) covered by the cartel.'

29 Accordingly, it is apparent from the statement of reasons supporting Article 1(3) of the contested decision, namely recitals 729 and 783 of that decision, which was moreover confirmed by the Commission at the hearing, that the Commission classified the facts concerning NWE principally as a single and continuous infringement, and, in the alternative only, in the event that the General Court found an error in that classification, the Commission classified the activities noted in NWE, taken individually, as separate infringements.

30 Consequently, it is apparent from an examination of the grounds of the contested decision that, despite the ambiguous wording of Article 1(3) of that decision, it is not necessary to annul the contested decision on the ground that the Commission reached an inconsistent conclusion as regards the applicants' participation, on the one hand, in a single and continuous infringement and, on the other, in separate infringements.

31 It is appropriate, first, to examine the second plea, then the first plea and, lastly, the third and fourth pleas.

The second plea in law: the Commission infringed Articles 101 TFEU and 53 EEA, as it committed a manifest error of assessment, and infringed its duty to state reasons, in finding that the applicants had participated in a single and continuous infringement in NWE during the period between 13 June 2002 and 20 June 2006

32 The present plea is in three parts, the first of which disputing the Huhtamäki Group's participation in the constituent elements of the cartel, the second part alleging that that group did not contribute to the common objectives of that cartel and ignored the general scope and essential characteristics thereof, and the third alleging that the Commission failed to address the applicants' arguments relating to the single and continuous infringement.

Participation in the constituent elements of the single and continuous infringement in NWE

33 The applicants maintain, in essence, that the Huhtamäki Group's role in the cartel was that of an outsider. According to the applicants, Huhtamäki did not take part in the key constituent elements of the cartel, both in respect of anticompetitive meetings and in respect of the implementation of those elements.

34 The applicants put forward their arguments following the chronology of the four stages of the single and continuous infringement set out by the Commission in the contested decision, namely, (i) the price increase in spring/summer 2002, (ii) the price increase in summer/autumn 2004, (iii) the bilateral exchange of information and the commencement of the 'Modified Atmosphere Packaging' working group within the Industrievereinigung Kunststoffverpackungen ('the MAP IK') in 2005 and, (iv) the activities in 2006.

35 The Commission disputes those arguments.

36 In that regard, it must be borne in mind that, in order to establish that there has been an infringement of Article 101 TFEU, the Commission must produce firm, precise and consistent evidence. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the set of indicia relied on by the institution, viewed as a whole, meets that requirement (see judgment of 1 July 2010, Knauf Gips v Commission, C 407/08 P, EU:C:2010:389, paragraph 47 and the case-law cited).

37 It is also necessary to take account of the fact that anticompetitive activities take place clandestinely, that the evidence discovered by the Commission is normally only fragmentary and sparse, and, accordingly, in most cases, the existence of an anticompetitive 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, to that effect, judgments of 7 January 2004, 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, paragraphs 55 to 57; of 6 December 2012, Commission v Verhuizingen Coppens, C 441/11 P, EU:C:2012:778, paragraphs 70 to 72; and of 27 June 2012, Coats Holdings v Commission, T 439/07, EU:T:2012:320, paragraph 42).

38 Given that the Commission is often required to prove the existence of an infringement several years after the events in circumstances where several of the undertakings involved have not actively cooperated in the investigation process, it would be excessive to require the Commission to produce evidence of the specific mechanism by which the anticompetitive aim was achieved. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were able to base its argument on the vagueness of the information produced with regard to the operation of an illegal agreement in circumstances in which the existence and anticompetitive purpose of the agreement had nonetheless been sufficiently established (judgment of 12 December 2014, Eni v Commission, T 558/08, EU:T:2014:1080, paragraph 36).

39 In so far as concerns, in particular, the exchange of information between competitors, it should be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the internal market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C 286/13 P, EU:C:2015:184, paragraph 119 and the case-law cited).

40 While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C 286/13 P, EU:C:2015:184, paragraph 120 and the case-law cited).

41 In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C 286/13 P, EU:C:2015:184, paragraph 122 and the case-law cited).

42 The General Court has already held that the provision of sensitive business information, such as an exchange of future price increases, had - where that information was given to one or more competitors - an anticompetitive effect inasmuch as the independence of the undertakings concerned in their conduct on the market was modified as a result. Where such practices occur, the Commission is not obliged to prove their anticompetitive effects on the relevant market if they are capable in an individual case, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition within the internal market (see judgment of 16 September 2013, Wabco Europe and Others v Commission, T 380/10, EU:T:2013:449, paragraph 78 and the case-law cited).

43 The Court of Justice has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market took account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court of Justice has concluded that such a concerted practice was caught by Article 101(1) TFEU, even in the absence of anticompetitive effects on the market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C 286/13 P, EU:C:2015:184, paragraph 127 and the case-law cited).

44 It is in the light of those principles that it is appropriate to examine whether the Commission set out sufficiently credible, precise and consistent evidence as to make it possible to establish, in the context of a global assessment and after examining the explanations or justifications provided by the applicants, that the Huhtamäki Group had participated in a single and continuous infringement of NWE.

- The price increase in spring/summer 2002

45 As regards the price increase in spring/summer 2002, the applicants point out that it is apparent from the contested decision that, out of the five anticompetitive meetings which may be regarded as constituting the key events during that period, namely the meetings held on 25 April 2002, 8 May 2002, 13 June 2002, 7 October 2002 and 31 March 2003, the Huhtamäki Group allegedly attended one of them only, namely the meeting held on 13 June 2002 alongside that of the European Quality Assurance Association for Expanded Polystyrene Foam Manufacturers for Food Packaging ('EQA') of the same date. However, they deny the group's participation in that anticompetitive meeting.

46 In that regard, first of all, it must be observed that, as the Commission rightly points out, of the five anticompetitive meetings listed by the applicants, the first two, namely the meetings of 25 April 2002 and 8 May 2002, took place before the date considered in the contested decision as being the start of the Huhtamäki Group's participation in the infringement in NWE, that is to say, 13 June 2002. Next, as regards the three remaining meetings, the last two meetings, namely those of 7 October 2002 and 31 March 2003, were bilateral meetings in which that group did not take part. Thus, the only meeting that that group is accused of having taken part in the contested decision in 2002, in the context of the infringement in NWE, is that of 13 June 2002.

47 In recitals 517 to 519 of the contested decision, the Commission stated that, on 13 June 2002, an EQA meeting was held in a hotel between the representatives of several undertakings including the Huhtamäki Group. It also stated that, before that official meeting, another meeting was held in the hall of that hotel among the representatives of those undertakings, during which those representatives agreed to increase prices.

48 The applicants do not dispute that representatives of the Huhtamäki Group took part in the EQA meeting of 13 June 2002, but dispute that those representatives took part in the meeting of the same day organised alongside that of the EQA mentioned above.

49 In recital 519 of the contested decision, the Commission found that, according to the statements of Linpac and Vitembal, the participants in the meeting of 13 June 2002 organised alongside that of the EQA on the same date had assembled in order to ensure that the price increases already agreed on 25 April and 8 May 2002 would be applied. The participants confirmed that they agreed to introduce a 10% price increase in respect of all their customers in Belgium, Denmark, Finland, Norway, the Netherlands and Sweden. The handwritten notes which were provided by Vitembal contain detailed tables comparing the prices of the Huhtamäki Group, in particular for Denmark, Finland, Norway, the Netherlands and Sweden. Those notes refer to the price increase announcements which Linpac and the Huhtamäki Group agreed to apply, namely to increase prices by 10% with effect from 1 July 2002 for Finland and Sweden and from 15 July 2002 in respect of Belgium and the Netherlands.

50 Thus, in order to prove the Huhtamäki Group's participation in the meeting of 13 June 2002 organised alongside that of the EQA of the same date, the Commission therefore relied, in recitals 517 to 522 of the contested decision, on two consistent statements from two distinct undertakings, Linpac and Vitembal, supported by handwritten contemporaneous and self-incriminating notes which had been provided by the latter.

51 It is apparent from an examination of the file that none of the arguments put forward by the applicants is such as to call into question the assessments made by the Commission.

52 In the first place, as regards the standard of proof required, the applicants submit, in essence, that the Commission did not submit direct evidence. First, the statements submitted by Linpac make no reference to the alleged contact on 13 June 2002. The statements produced by Vitembal are contradictory and inconclusive as regards the question of the Huhtamäki Group's participation in the meeting of 13 June 2002 organised alongside that of the EQA of the same date. Lastly, even if the handwritten notes provided by Vitembal contained pricing information relating to that group, they do not contain any indication of their source. Those notes, it is submitted, contain pricing information of an identical nature with respect to two other companies, neither of which attended that meeting.

53 In that regard, it must be recalled that statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see judgment of 26 April 2007, Bolloré and Others v Commission, T 109/02, T 118/02, T 122/02, T 125/02, T 126/02, T 128/02, T 129/02, T 132/02 and T 136/02, EU:T:2007:115, paragraph 166 and the case-law cited).

54 It is true that an undertaking which has applied for immunity from fines may have to submit as much incriminating evidence as possible. The fact remains that such an undertaking will also be aware of the potential adverse consequences of presenting inaccurate information, which may in particular result in the loss of immunity after it has been granted. Moreover, the risk of the inaccurate nature of those statements being detected and leading to those consequences is increased by the fact that such statements must be corroborated by other evidence (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C 239/11 P, C 489/11 P and C 498/11 P, not published, EU:C:2013:866, paragraph 138).

55 Moreover, it should be noted that a declaration made by an undertaking recognising the existence of an infringement committed by that undertaking entails considerable legal and economic risks, including, in particular, that of actions for damages being brought before the national courts, in the context of which the Commission's establishment of a company's infringement may be invoked (see, to that effect, judgments of 19 December 2013, Siemens and Others v Commission, C 239/11 P, C 489/11 P and C 498/11 P, not published, EU:C:2013:866, paragraphs 140 and 141 and the case-law cited, and of 16 June 2015, FSL and Others v Commission, T 655/11, EU:T:2015:383, paragraph 153).

56 Finally, it is apparent from the case-law that statements made with a view to benefiting under the Leniency Notice may be corroborated by other statements of that nature, and not solely by other evidence contemporaneous with the facts at issue, namely evidence dating from the time of the infringement (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C 239/11 P, C 489/11 P and C 498/11 P, not published, EU:C:2013:866, paragraph 191).

57 In the present case, as regards, specifically, the recognition, by Linpac and Vitembal, of their participation in the infringement, that was clearly likely to run counter to the interests of those undertakings, since it was a factor that could be used against the undertakings by the Commission as parties to the infringement.

58 The table supplied by Linpac in its statement indicates, in the column pertaining to the participants at the meeting of 13 June 2002 organised on the side of the EQA meeting of the same date, that the participants generally present at the meetings held alongside that of the EQA, which Linpac attended, included, inter alia, the Huhtamäki Group, represented by Mr B. The applicants submit that the wording of that document suggests that Mr W., a Linpac employee, did not remember very well the participants at that meeting. However, it must be observed that the same phrase referring to the word 'generally' is also used in the column of the participants at the EQA meeting in question in the same table. It is not disputed that the employees of that group took part in that meeting. Moreover, as regards the term 'occasionally' in the column of the participants in the meeting of 13 June 2002 organised alongside that that of the EQA of the same date, it must be held, in the light of the evidence in the file, that it refers, as the Commission suggests, only to the participation of one of the two Silver Plastics employees and does not concern that group.

59 As regards Vitembal's statements, the applicants submit, in essence, that the statements of 31 July 2008 and of 8 November 2010 are contradictory and inconclusive as regards the question of the participation of the Huhtamäki Group at the meeting of 13 June 2002 organised alongside that of the EQA of the same date.

60 However, it is apparent from the documents before the Court that there are three relevant statements concerning the meeting of 13 June 2002, which was organised alongside the EQA meeting of the same date, namely that of 31 July 2008, the meeting of 27 October 2008 and the meeting of 8 November 2010.

61 First, the applicants are unaware of Vitembal's statement of 27 October 2008. The latter states unequivocally that employees of the Huhtamäki Group, Mr K. and Mr B., did in fact participate in the meeting of 13 June 2002, which was organised alongside that of the EQA of the same date, during which a decision was taken on a price increase.

62 Secondly, as regards the statement of 8 November 2010, the fact that the email states that Mr B., a Vitembal employee, 'believes', that the representatives of the Huhtamäki Group had participated in the meeting of 13 June 2002 organised alongside that of the EQA of the same day does not deprive that declaration of probative value. It is apparent from a more in-depth reading of the email that it is a clarification which takes account of the list of participants initially submitted in the statement of 31 July 2008.

63 Thirdly, it is admittedly true that the Huhtamäki Group is not mentioned in the statement of 31 July 2008, whereas the following two statements mention the presence of the employees of the Huhtamäki Group at the meeting of 13 June 2002 organised alongside that of the EQA of the same date. However, that fact cannot lead to the conclusion that those declarations are contradictory. It is common for the information supplied with the first declarations in the context of the Leniency Notice to be supplemented or clarified in the subsequent declarations. In order to obtain the greatest possible reduction in the amount of the fine, the undertakings make their first statements, as soon as they have a first overview of the facts on the basis of the first evidence gathered. Thus, it is important to analyse the statements provided by an applicant for leniency as a whole. It should also be noted that only three months elapsed between the first statement and the second statement. Thus, the fact that Vitembal stated in its leniency application that the Huhtamäki Group had participated in that meeting, with a few months delay in relation to its initial statement, does not alter the probative value of that statement.

64 As regards the handwritten notes which were provided by Vitembal and which are contemporaneous with the meeting of 13 June 2002 organised alongside that of the EQA of the same date, none of the arguments put forward by the applicants is such as to weaken their credibility.

65 First, as regards the applicants' argument that the handwritten notes which were provided by Vitembal do not contain any indication as to their origin, it must be observed, first of all, that those handwritten notes were drawn up on the headed paper of the hotel where the meeting of 13 June 2002, organised alongside that of the EQA on the same date, took place. Next, they could not have been drafted at the meeting of 8 May 2002, as the applicants suggest, since those notes show the presence of Depron and the Huhtamäki Group, that is to say, two undertakings not present at the meeting of 8 May 2002. Finally it is apparent from the case-law that the fact that an item of contemporaneous evidence is undated does not deprive it of all its probative value, in particular where its origin, probable date and content may be determined with sufficient certainty (see, to that effect, judgment of 21 May 2014, Toshiba v Commission, T 519/09, not published, EU:T:2014:263, paragraph 94 and the case-law cited).

66 Secondly, as regards the argument that the handwritten notes which were provided by Vitembal were written in German whereas Mr K., an employee of the Huhtamäki Group, does not speak that language, it is sufficient to state, on the one hand, that it was indeed possible for those notes to have been taken in a language other than that of the meeting and, on the other, that Mr B., another employee of that group also present at that meeting, does speak German inasmuch as he was employed in Germany, as per the Commission's submissions, which were not disputed by the applicants.

67 Thirdly, the applicants submit that the information concerning the Huhtamäki Group in the handwritten notes which were provided by Vitembal was not disclosed by the employees of that group, Mr K. or Mr B., it being noted that those notes contain information on prices of the same type concerning two other companies, even though it is common ground that those other two companies did not attend the meeting of 13 June 2002 organised alongside that of the EQA on the same date. However, in order to reject that argument, it is sufficient to observe, as the Commission rightly points out, that those companies are mentioned in those notes only in respect of a single point, without any reference to specific prices, contrary to what the applicants claim. On the other hand, the name of the Huhtamäki Group or, to be more precise, its other names such as 'Polar' and 'Polarcup', are referred to on several occasions with exact prices in respect of certain specific goods and countries. The fact that those notes do not specify the identity of the representatives of that group in no way justifies the applicants' denials with regard to the presence of that group at that meeting.

68 In the light of the foregoing, it must be held that the evidence adduced by the Commission is sufficient to demonstrate the presence of the Huhtamäki Group at the meeting of 13 June 2002 organised alongside that of the EQA on the same date. The statement made by Vitembal in the context of the Leniency Notice and the handwritten notes which were provided by Vitembal corroborate the declaration supplied by Linpac.

69 In the second place, it is necessary to assess the other arguments by which the applicants challenge the participation of the Huhtamäki Group at the meeting of 13 June 2002 organised alongside that of the EQA of the same date.

70 First, the applicants claim that the sole purpose of the meeting of 13 June 2002 organised alongside that of the EQA's of the same day was to supplement two previous meetings which the Huhtamäki Group had not attended. Consequently, there would have been no point in the two Huhtamäki employees attending the meeting in question. Moreover, the duties and responsibilities of the two Huhtamäki employees were not really appropriate for them to attend the alleged anticompetitive meeting.

71 In rejecting that line of argument, it is sufficient to point out that any lack of interest is by no means decisive in assessing the presence of the representatives of the Huhtamäki Group at the meeting of 13 June 2002 organised alongside that of the EQA on the same day.

72 Secondly, it is sufficient to observe that the two employees of the Huhtamäki Group had senior roles and responsibilities within that undertaking. At the material time, Mr K. was the President of the first applicant's fresh foods division and Mr B. was the second applicant's Sales and Marketing Manager for Germany and Benelux. In addition, it should be recalled that the attribution to an undertaking of an infringement of Article 101 TFEU does not require there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned by that infringement; action by a person who is authorised to act on behalf of the undertaking suffices (see judgment of 16 June 2015, FSL and Others v Commission, T 655/11, EU:T:2015:383, paragraph 303 and the case-law cited). It is clear, in the present case, that the two abovementioned employees acted on behalf of the Huhtamäki Group.

73 Secondly, the applicants claim that the Huhtamäki Group had already, before the meeting of 13 June 2002, organised alongside that of the EQA of the same date, independently recognised the need to increase prices for a range of packaging products in the light of significant price increases in raw materials, and that the sales team of that group had begun to inform its customers accordingly. This is evidenced by the applicants' internal email of 8 April 2002.

74 In order to reject that argument, it should be noted that, contrary to what the applicants maintain, it is not apparent from the applicants' internal email of 8 April 2002 that the actual and definitive decision concerning the price increase had already been taken by that date by the Huhtamäki Group. On the contrary, that internal email, sent by Mr K., merely shows that that group had begun to consider a price increase. It refers to an increase in the prices of raw materials and states that that trend should be passed on in the future price of the trays. More specifically, concerning the foam trays, it refers to the subsequent organisation of a meeting of the EQA during which the subject was to be dealt with. In addition, it is also apparent from that internal email that the price increases were determined rather centrally within that group and that Mr K. was indeed involved in that process, which contradicts the applicants' position that prices were decided locally.

75 In any event, it must be observed that, even assuming that the price increase was decided by the Huhtamäki Group before the meeting of 13 June 2002, organised alongside that of the EQA of the same date, that does not mean that its participation in the meeting in question was not anticompetitive in so far as exchanges of information between competitors are liable to be incompatible with competition rules if they reduce or remove the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted. Article 101 TFEU, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such (see, to that effect, judgment of 16 June 2015, FSL and Others v Commission, T 655/11, EU:T:2015:383, paragraph 328 and the case-law cited).

76 Thirdly, the applicants submit that it is apparent from the minutes of the EQA meeting of 13 June 2002 and the invitation to that meeting that the meeting began at 9 am rather than 11 am. Moreover, Linpac and Vitembal are not mentioned in those minutes. Thus, it is possible that the other meeting which was organised alongside the meeting in question was held solely between the representatives of those undertakings in the hall of the hotel at 9 am, at the same time as the latter meeting for which the representatives of the other undertakings had gathered.

77 In that regard, it is not apparent from the documents relied on by the applicants and the documents referred to by the Commission that the EQA meeting of 13 June 2002 began at 9 am and that the participants in that meeting and the participants in the other meeting organised alongside thereof were different. First of all, the reference to '9h' written by hand next to the time of the start of the first of those meetings scheduled at 11 am on the invitation to that meeting could indeed also refer to the beginning of the second of those meetings. It is true that the fuller version of the minutes produced as an annex to the defence does not contain the list of participants in the first of those meetings. However, the fuller account of the minutes of the first of those meetings, in terms of pages and subjects covered, was prepared by Mr W., a Linpac employee. It follows that Linpac was present at the first of those meetings, since those minutes were prepared by one of its employees.

78 Finally, as is apparent from paragraphs 64 to 68 above, the handwritten notes of the meeting of 13 June 2002 organised alongside that of the EQA on the same date clearly show that there were more than two participants in that meeting. For example, those handwritten notes state that '[Mr P.] says A11A was a calm market before Linpac came' and accordingly show that Mr P., a Depron employee, was present. In addition, those handwritten notes contain information concerning the conduct of Linpac, the Huhtamäki Group and Silver Plastics.

79 Furthermore, it must be borne in mind that, in order to prove the Huhtamäki Group's participation in the meeting of 13 June 2002 organised alongside that of the EQA on the same date, the Commission relied on the statements made by Vitembal and Linpac for leniency, which confirm that that meeting took place before that of the EQA mentioned above.

80 For the sake of completeness, it should be noted that, in the context of the first plea, the applicants also rely on the absence of indirect evidence concerning the price increase in spring/summer 2002. These are criticisms of other evidence relied on by the Commission in the contested decision, such as letters of price increases and a parallel timetable of price increases between competitors. However, given that it is apparent from the analysis carried out above that there is sufficient direct evidence, it is not necessary to examine those arguments in the context of the second plea.

81 In addition, it must be observed that, in the context of the first plea, the applicants dispute that two other contacts, taken individually, may be classified as separate infringements. At issue are alleged contacts between the Linpac employees and the Huhtamäki Group, the existence of which is proved by two contemporaneous handwritten notes of Linpac. The first note, dated 29 April 2003, reads as follows: 'Huhtamaki in Sweden should take the lead because they made the last price decreases. Kottonen [Huhtamäki]! ... Last time we went first with 8%.' The second note, dated 3 February 2004, reads as follows: 'as Mr. [B.] told me, Mr. [H.] [Silver Plastics] has undercut the market price by 25%' However, the applicants do not dispute those contacts as part of the constituent elements of the single and continuous infringement covering NWE.

- Price Increase in summer/autumn 2004

82 As regards the increase in prices in summer/autumn 2004, the applicants submit, in essence, that, according to the Commission's findings, the Huhtamäki Group was present only in one of the two multilateral meetings held during that period, namely the first meeting held in Cologne (Germany) on 24 August 2004 ('the meeting of 24 August 2004'). However, they dispute Huhtamäki's participation in that meeting. The applicants claim that the statements made by Linpac and Vitembal are inconsistent, imprecise and in part contradictory, and that they cannot be used to establish that Mr B., a Huhtamäki employee, attended the meeting. They also argue that there is no contemporaneous evidence of Huhtamäki's participation in that meeting. Furthermore, according to the applicants, if the group concerned had participated in the cartel including NWE, it should have participated in the second meeting, namely that held in Ratingen (Germany), in August/September 2004 ('the meeting of August/September 2004').

83 In that regard, it must be observed that, in recital 534 of the contested decision, the Commission took the view, in essence, that the meeting of 24 August 2004 was held between the representatives of Linpac, Vitembal, Silver Plastics and the Huhtamäki Group. The competitors participating in that meeting agreed on a price increase for foam and rigid trays in Scandinavian countries. That meeting, including the identity of the participants and the issues addressed, is evidenced by Linpac and by Vitembal in their respective statements. According to the Commission, the fact that the meeting did take place was also evidenced by contemporaneous documents, namely the internal emails sent before and after that meeting.

84 In recital 535 of the contested decision, the Commission refers to an internal email sent on 20 August 2004 by Mr W., a Linpac employee, the subject of which was 'Journey to Cologne'. In that email, Mr W. wrote the following: 'Next week in Cologne I will meet [R] and the Mafia.' The applicants do not dispute the existence or content of that email.

85 In another internal Linpac email, sent on 31 August 2004 the subject of which was 'Price increases', Mr W. stated:

'All said ok ... I will report once the first official letters are out. Silver had announced for this week (according to [Mr K.]). ... PS: delete this e-mail at once and do not forward it.'

86 Contrary to what the applicants maintain, it is apparent from the analysis of the statements of Linpac and Vitembal that their content, as regards the participation of the Huhtamäki Group at the meeting of 24 August 2004, is not contradictory.

87 It is admittedly true that Linpac's initial statement was less formal in respect of the Huhtamäki Group's participation in the meeting of 24 August 2004. However, in its subsequent declaration, Linpac gave clear and precise indications of the group's participation in that meeting when it explained that the meaning of the phrase 'All said ok', used in the email referred to in paragraph 85 above, indicated that the price increase had been agreed between the competitors participating in that meeting.

88 As regards the alleged contradiction in Vitembal's statement relating to the date of the meeting of 24 August 2004, the latter stated, in its reply to a request for information, that it had made an announcement of price increases on 13 September 2004 and that that price increase had been agreed between Linpac, the Huhtamäki Group, Silver Plastics and itself during the meeting organised in Cologne. The reference to 13 September 2004 as the date of that meeting in a subsequent paragraph in that document must be interpreted as a clerical error. It is clear from a reading of the paragraph as a whole that the date of 13 September 2004 refers to the announcements of price increases by the undertaking and not to the date of the meeting in question. In that paragraph, Vitembal refers to two separate meetings. The first meeting mentioned is the meeting of August/September 2004, during which the price increases for Germany and the Benelux countries were discussed. The second meeting is the one in which price increases for the Scandinavian countries were discussed. In that regard, it must be observed that it is common ground between the parties that the price increases for Scandinavian countries were discussed, in particular, at the meeting of 24 August 2004.

89 None of the other arguments put forward by the applicants is such as to call into question the finding that the Huhtamäki Group participated in the meeting of 24 August 2004.

90 First, as regards the applicants' argument that the Commission did not take account of the Silver Plastics statement exculpating the Huhtamäki Group, it is sufficient to state that that statement has no probative value as regards the group's participation in the meeting of 24 August 2004, in so far as, in that statement, Silver Plastics denies its participation in that meeting. Thus, it is clear that, following that logic, it cannot have any recollection of that group's participation in that meeting.

91 Secondly, the applicants' arguments alleging that Mr B., an employee of the Huhtamäki Group, had no interest in participating in the meeting of 24 August 2004 and that that meeting had no connection with his duties, are ineffective since they do not call into question either the existence of that meeting or the evidence concerning that group's participation in the meeting. As the Commission rightly points out, there is no requirement in EU law that the participant in the cartel meetings must be the employee of the undertaking which determines the prices in a specific geographic area. On the contrary, any employee authorised to act on behalf of the undertaking can be a participant in a cartel meeting attributable to the undertaking. In the present case, Mr B., an employee of that group, was authorised to act on its behalf, as is also apparent from paragraph 72 above.

92 Thirdly, the applicants' argument challenging the fact that the meeting of 24 August 2004 concerned not only foam trays, but also rigid trays, must also be rejected. First of all, it must be observed that it is apparent from the application that the applicants themselves do not totally exclude the fact that the rigid trays were discussed at that meeting. The applicants claim only that the foam trays were the main, and even the only, subject and purpose of that meeting. Next, it is apparent from the Linpac statement that the same meeting related, inter alia, to rigid trays. Furthermore, in its statement, Vitembal also stated that the meeting in question related, inter alia, to rigid trays. Finally, it is apparent from the documents in the file that the price increase agreed at the meeting in question also extended to rigid trays. In any event, it must be observed that the challenge in respect of the purpose of that meeting does not call into question the Huhtamäki Group's participation in that meeting.

93 Fourthly, the applicants' argument that the meeting of August/September 2004 concerned, unlike the meeting of 24 August 2004, the sectors relating to Mr B.'s responsibility and, therefore, that it would have been logical for him to attend that meeting, is not relevant. The Commission is not obliged to explain how such a situation occurred. It is apparent from the contested decision that the Huhtamäki Group is not criticised with regard to Mr B.'s participation in that meeting.

94 Fifthly, the fact that the Huhtamäki Group's pricing policy was not consistent with what was agreed at the meeting of 24 August 2004, or the fact that the Commission was not in possession of the letters detailing price increases sent to the competitors by that group, or the fact that, according to the applicants, that group is almost absent from the Commission's narrative relating to the price increases agreed at that meeting, are also irrelevant. The Commission is not required to demonstrate the implementation of the cartel, as is apparent from the case-law cited in paragraphs 41 to 43 above; moreover, the fact that the other undertakings were mentioned in the contested decision in the context of the implementation of the cartel is quite simply the result of the investigation.

95 Accordingly, it must be held that the Commission has established to the requisite legal standard that the Huhtamäki Group participated in the meeting of 24 August 2004.

- Bilateral Exchange of Information and Kick-off for the 'MAP IK' in 2005

96 As regards 2005, the applicants note that, according to the Commission's findings in the contested decision, the Huhtamäki Group took part in only one of the three key meetings during that year. Furthermore, the fact that Mr B., an employee of the Huhtamäki Group, was one of the participants at a single meeting in that year, namely that held on 12 October 2005, held in Bad Salzuflen (Germany) ('the meeting of 12 October 2005'), and during which the Huhtamäki Group did not engage in anticompetitive conduct, cannot be construed as proof of Huhtamäki's involvement in a collusive mechanism regarding rigid trays.

97 In that regard, it must be observed that it is indeed common ground that the Huhtamäki Group did not participate in the first two meetings in 2005, namely, the meeting in July/August 2005 and that in September 2005.

98 In recital 551 to the contested decision, the Commission states that the meeting in July/August 2005 was not a multilateral meeting but a bilateral meeting between Linpac and Vitembal employees. Moreover, it is apparent from the Linpac statement that, at that meeting, the Vitembal representative suggested that a 'similar mechanism to the EQA' had been created for rigid trays. They agreed that Linpac would subsequently organise an in-house exhibition with its competitors.

99 In recital 552 of the contested decision, the Commission takes the view that the September 2005 meeting was a multilateral meeting at which the Linpac, Vitembal, Silver Plastics and Depron employees discussed the shift from foam to rigid trays in the German market.

100 As regards the meeting of 12 October 2005, it should be noted that the presence of an employee of the Huhtamäki Group at that multilateral meeting is not disputed. The applicants challenge only the fact that the representative of that group engaged in anticompetitive conduct. They maintain that the Commission relied entirely on the Linpac statement, which is not corroborated by any contemporaneous statement or other evidence. Consequently, there is no evidence that Mr B., employee of that group, attended the meeting in order to engage in anticompetitive conduct.

101 In that regard, it must be observed that the Commission found, in recital 553 of the contested decision, that the purpose of the meeting of 12 October 2005 was to engage in anticompetitive contacts in respect of rigid trays. It is also apparent from recital 555 of that decision that the Commission relied on Linpac's statement in order to find that the discussions between the participants at that meeting had been difficult, that the representative of the Huhtamäki Group had begun a discussion about a customer, that Linpac had put that group out of business in respect of that customer and that the discussion ultimately led to an agreement between Linpac, Silver Plastics and the Huhtamäki Group not to intervene with each other's customers.

102 Moreover, the Commission did not make such a finding solely on the basis of Linpac's statement. That statement was corroborated by contemporaneous evidence, namely an internal Linpac email of 14 September 2005.

103 It is apparent from the Linpac internal email of 14 September 2005 that the meeting of 12 October 2005 was, from the start, envisaged as a meeting organised as part of a cartel. In that internal email, written by Mr W. to Mr H., both of whom were employees of Linpac, with a view to that meeting, the former requested the latter to 'order some "sales material" for the meeting' and states that they should 'have at least something on the record to show (in case the competition authority knocks on [their] door)'. That internal email therefore leaves no doubt as to the anticompetitive nature of the topics which would be addressed at the meeting in question.

104 The lack of knowledge of the real purpose of the meeting of 12 October 2005 is also irrelevant. For the Huhtamäki Group to be regarded as having participated in an infringement, it is sufficient that a meeting with an anticompetitive purpose has taken place and that the representative of that group took part in it without distancing itself from the content of that meeting.

105 In that context, the applicants' argument by which they criticise the credibility of the Linpac statement on the ground that the customer, to which reference is made in paragraph 101 above, was not even a customer of the Huhtamäki Group for rigid trays at the time, must be rejected. The statement does not suggest that that customer was a customer of the Huhtamäki Group. On the contrary, it states that Linpac put that group out of business in respect of that customer.

106 Thus, it must be held that the absence of the Huhtamäki Group at the first two meetings in 2005, and above all at the second of those two meetings, given that the first was a bilateral meeting, is not significant in order to assess the participation of that group in the single and continuous infringement. The first two meetings are closely linked, both chronologically and in terms of their content, and the main issue of the discussions concerned future cooperation with regard to rigid trays. The first multilateral meeting, which dealt exclusively with rigid trays and whose content was manifestly anticompetitive, was the meeting of 12 October 2005.

107 Furthermore, as regards 2005, it must also be observed that, in paragraph 550 of the contested decision, the Commission found that an employee of the Huhtamäki Group had taken part in bilateral anticompetitive contacts with an employee of Linpac in April 2005.

108 The applicants do not dispute the facts described in recital 550 of the contested decision. However, they submit, in essence, that those contacts, carried out by Ms G., employed by the Huhtamäki Group, are not attributable to the group principally in so far as Ms G. did not act as representative of that group within the ordinary framework of her duties but in her capacity as a future employee of Linpac.

109 That argument cannot be upheld. When the anticompetitive practices took place, Ms G. was, within the Huhtamäki Group, a key account manager responsible for Germany and the Benelux countries. It is clear from the case-law cited in paragraph 72 above that, for the purposes of attributing liability for an infringement to an undertaking, it is sufficient that a person is authorised to act on behalf of that undertaking.

110 Accordingly, the applicants' arguments concerning the bilateral exchange of information and kick-off for 'MAP IK' in 2005 must be rejected as unfounded.

- Contacts in 2006

111 The applicants submit, in essence, that for the whole of 2006, when numerous anticompetitive meetings were held, the Huhtamäki Group is mentioned only once in the contested decision. It follows that Huhtamäki was never part of an anticompetitive scheme.

112 In that regard, first of all, it should be noted that, in recital 990 of the contested decision, the Commission found that the participation of the Huhtamäki Group in the cartel in NWE had ended on 20 June 2006, the date on which that group contacted Linpac in respect of the rigid trays supplied to certain customers in Germany. Thus, the applicants' arguments by which they refer to events after that date are irrelevant.

113 Next, it is not unusual that the Huhtamäki Group participated, in 2006, in less contact than the other participants whose involvement in the cartel in NWE in 2006 was upheld. That is a fortiori the case since, in the contested decision, the Commission refers solely to two other bilateral meetings between two Linpac and Silver Plastics employees, prior to the contact of 20 June 2006.

114 Finally, as regards the arguments by which the applicants dispute the anticompetitive nature of the contact of 20 June 2006, they must also be rejected.

115 As a preliminary point, it should be noted that, in recital 559 of the contested decision, the Commission took the view that, on 20 June 2006, Mr B., an employee of the Huhtamäki Group, called Mr W., a Linpac employee, and told him that the group had sent to two specific customers in Germany a list of prices for rigid trays which was inaccurate. The prices communicated were too high and Mr B. suggested that Linpac take advantage of that opportunity and increase prices accordingly. That telephone conversation is attested to by contemporaneous documentary evidence, namely an internal Linpac email provided by the latter.

116 Thus, it is a direct exchange between two competitors concerning a price increase. Such an exchange between competitors constitutes a restriction by object. The fact that the Huhtamäki Group's employee provided false information, as claimed by the applicants, and the fact that the Linpac employee knew that they were false, as further claimed by the applicants, and the real intentions of that group during that contact are irrelevant since the object of that exchange was clearly anticompetitive.

117 Similarly, it is also irrelevant that a customer sent Linpac a list of the prices of the Huhtamäki Group prior to the contact between Mr B. and Mr W. As the Commission correctly submits, the decisive factor is that that group, through Mr B., provided sensitive commercial information on prices to a competitor with the aim of restricting competition in the market.

118 Moreover, cheating between the members of a cartel does not invalidate the existence of an anticompetitive practice. It should be recalled that, according to the case-law, even on the assumption that it is proved that certain participants in the cartel succeeded in misleading other participants by sending incorrect information and in using the cartel to their advantage, by not complying with it, the infringement committed is not eliminated by that simple fact (see judgment of 8 July 2008, Knauf Gips v Commission, T 52/03, not published, EU:T:2008:253, paragraph 201 and the case-law cited). It must therefore be held that, even assuming that the information disclosed by the employee of the Huhtamäki Group was incorrect, the fact remains that the disclosure of that type of information on future prices, whether correct or incorrect, was capable of influencing the conduct of the undertakings on the market.

119 Accordingly, the applicants' arguments concerning 2006 must be rejected, as must the first part of the second plea in its entirety, as unfounded.

The alleged failure to contribute to the common objectives of the cartel and lack of awareness of its general scope and essential characteristics

120 The applicants essentially claim that the Huhtamäki Group did not intend to contribute to the common objectives pursued by the participants in the cartel, and that it was not aware of the general scope and essential characteristics of the cartel.

121 First of all, the applicants submit that the Huhtamäki Group's business was organised in a different way from that of Linpac and Vitembal. According to them, the Huhtamäki Group did not have a foam tray business in Germany, which was at the centre of the cartel. Moreover, the Huhtamäki Group's German and Finnish rigid tray businesses were strictly separated.

122 Secondly, the applicants claim that Mr B. did not have any responsibility for the foam tray sector within the Huhtamäki Group, since he was working within a unit of that group covering Germany and the Benelux countries, in which that group was not active in that sector.

123 Thirdly, the applicants also claim that the Huhtamäki Group's representatives were not aware that the group around Linpac had set up a cartel. According to the applicants, this can be seen from the fact that Huhtamäki's representatives were not present during any of the key events that allegedly shaped the cartel.

124 The Commission disputes those arguments.

125 In that regard, it must be observed that the Commission took the view, in recitals 783 to 791 of the contested decision, that the participants, including the Huhtamäki Group, had taken part in a single and continuous infringement in relation to the foam tray market in NWE, since the different types of anticompetitive agreements or concerted practices in which they had participated were part of a common anticompetitive plan to restrict competition on the market in question. According to the Commission, the single and continuous nature of the cartel in NWE is evidenced, inter alia, by the existence of a stable, regular and consistent pattern of collusive contacts when changes in the market required an intervention, by the fact that, throughout the infringement period, each manifestation of the complex arrangements, namely price coordination and exchange of information, concerned foam and rigid trays, by the fact that the pool of individuals who had participated in the collusive contacts throughout the infringement was constantly stable and, finally, by the fact that all the participants in the cartel were aware of all the aspects of the infringement by reason of their participation in multilateral meetings.

126 The Commission also found, in recital 725 of the contested decision, that the overall aim of the contact between the participants in the cartel 'was to increase and maintain prices in NWE above competitive levels and to maintain the status quo in the region'.

127 According to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an 'overall plan' because their identical object distorts competition in the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 26 January 2017, Villeroy & Boch v Commission, C 644/13 P, EU:C:2017:59, paragraph 47 and the case-law cited).

128 An undertaking which has participated in a single and complex infringement of that kind by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may thus be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see judgment of 26 January 2017, Villeroy & Boch v Commission, C 644/13 P, EU:C:2017:59, paragraph 48 and the case-law cited).

129 An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 26 January 2017, Villeroy & Boch v Commission, C 644/13 P, EU:C:2017:59, paragraph 49 and the case-law cited).

130 Moreover, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective. On the other hand, the condition relating to a single objective requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the conduct in fact implemented by other participating undertakings does not have an identical object or identical anticompetitive effect and, consequently, do not form part of an 'overall plan' as a result of an identical object distorting the normal pattern of competition within the internal market (see judgment of 26 January 2017, Villeroy & Boch v Commission, C 644/13 P, EU:C:2017:59, paragraph 50 and the case-law cited).

131 In the present case, it is necessary to determine, first, whether the Huhtamäki Group intended to contribute to the common objectives pursued by the participants in the cartel in NWE and, second, whether that group was aware of the general scope and essential characteristics of that cartel.

132 In the first place, as regards the intention to contribute to the common objectives, the applicants submit, in essence, that the activities of the Huhtamäki Group were organised in a completely different manner from those of Linpac and Vitembal. Thus, that group could not have complied with the objectives of a cartel conducted from Germany around Linpac.

133 In that regard, first of all, it must be held that the internal organisation of the participants in a cartel is of no relevance as regards the question whether an undertaking intended to contribute to the common objectives of that cartel. The relevant question is whether an undertaking participated in the cartel and was aware of its scope.

134 Next, it must be borne in mind that, following the analysis of the first part of the present plea, it was concluded that the Commission did not err in finding that the Huhtamäki Group had participated in multiple anticompetitive contacts between 13 June 2002 and 20 June 2006.

135 In addition, contrary to what the applicants maintain, the geographic scope of the cartel and the goods covered by it do not stem from the manner in which Linpac and Vitembal had organised their activities, but from the content of the discussions between the participants in the cartel.

136 On the one hand, it is apparent from the documents in the file that the collusive contacts in which the Huhtamäki Group took part related to the whole of NWE. First, the minutes of the meeting of 13 June 2002 organised alongside that of the EQA of the same date contain detailed tables comparing the prices of participants at the meeting, including of that group, for several countries and, in particular, Denmark, Finland, Norway, the Netherlands and Sweden. Those minutes also indicate that Linpac and the Huhtamäki Group were to increase their prices by 10% in Belgium, Finland, the Netherlands and Sweden. Next, it is apparent from the analysis carried out in paragraphs 83 to 94 above that, in 2004, that group participated in anticompetitive contacts relating to prices in the Scandinavian countries. In addition, it is apparent from the analysis carried out in paragraphs 100 to 109 above that, in 2005, the same group participated in anticompetitive contacts relating to prices, inter alia, in Germany. Finally, it is apparent from the analysis carried out in paragraphs 112 to 118 above that, in 2006, that group had contacts with Linpac relating to prices in Germany.

137 On the other hand, the applicants' arguments that the Huhtamäki Group did not intend to participate in the cartel, which covered both foam and rigid trays, must be rejected as having no factual basis. As was found in the context of the analysis of the first part of the second plea (see paragraphs 36 to 119 above), the anticompetitive practices at issue concerned both foam and rigid trays.

138 In the second place, as regards the applicants' arguments that the employees of the Huhtamäki Group referred to in the contested decision, in particular Mr B., Mr K. and Ms G., were not responsible either for the goods or the geographical area being discussed, it must be rejected on the same grounds as those set out in paragraphs 71, 72, 91 and 109 above.

139 In the third place, as regards the question whether it was established in the contested decision that the Huhtamäki Group was aware of the general scope and essential characteristics of the cartel in question, the applicants claim that the representatives of the Huhtamäki Group did not know that a cartel had been implemented. According to the applicants, this can be seen from the fact that the Huhtamäki Group's representatives were not present during any of the key events that allegedly shaped the cartel. They submit that that group was never present at the meetings when it was a question of organising the cartel. The allegations against the group in question and set out in the contested decision relate to one or more 'reassurance meetings'.

140 The arguments advanced by the applicants cannot be upheld.

141 It is apparent from the assessment of the first part of the second plea in law and paragraph 136 above that the Huhtamäki Group participated in the meeting of 13 June 2002, which was organised alongside that of the EQA of the same day and at the meetings of 24 August 2004 and 12 October 2005. As has already been stated, those meetings, as well as other anticompetitive practices at issue, concerned price increases and exchanges of commercially sensitive information on foam and rigid trays in NWE. Accordingly, that group could not have been unaware of the existence of the cartel in question and its scope.

142 Moreover, in so far as the applicants claim that the Huhtamäki Group did not take part in the contacts in August/September 2004, July/August 2005 and September 2005, it is sufficient to note that the fact that an undertaking has not participated in all the anticompetitive practices has no bearing on the question of whether it was aware of the general scope and the essential characteristics of the cartel in question, if that awareness is apparent from the meetings and contacts in which that undertaking took part.

143 In the light of all of the foregoing, it must therefore be held that the Commission did establish to the requisite legal standard that the Huhtamäki Group had intended to contribute to the common objectives pursued by the participants in the cartel in NWE and was aware of the general scope and essential characteristics of that cartel. Therefore, the second part of the second plea must be rejected as unfounded.

The Commission's alleged failure to address, in the contested decision, the applicants' arguments relating to the issue of a single and continuous infringement

144 The applicants complain that the Commission failed to respond, in the contested decision, to the arguments raised in the context of the present plea and which the Huhtamäki Group had already raised in its response to the statement of objections. They also complain that the Commission used its technique of cross-referencing between different sections of the contested decision with a view to complying with its duty to state reasons.

145 The Commission disputes the applicants' arguments.

146 According to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 9 September 2015, Philips v Commission, T 92/13, not published, EU:C:2015:605, paragraph 102 and the case-law cited).

147 The Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned; it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In particular, it is not required, however, to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance (see judgment of 9 September 2015, Philips v Commission, T 92/13, not published, EU:C:2015:605, paragraph 103 and the case-law cited).

148 In the present case, first of all, it must be observed that the applicants have not put forward any specific example of failure by the Commission to address the arguments concerning the single and continuous infringement raised by the Huhtamäki Group during the administrative procedure.

149 Next, it is apparent from recitals 783 to 791 of the contested decision that the Commission explained, in a detailed manner, why the facts described in Section 4.3 of that decision constituted a single and continuous infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement as regards the market for foam trays and rigid trays in NWE.

150 In addition, the Commission made a summary and responded to the arguments put forward by the Huhtamäki Group during the administrative procedure in recitals 788 and 789 of the contested decision.

151 Moreover, it is apparent from paragraphs 125 to 143 above that the Commission did establish that the Huhtamäki Group had intended to contribute to the common objectives pursued by the participants in the cartel in NWE and was aware of the general scope and essential characteristics of that cartel.

152 Finally, the fact that, in certain cases, in the legal assessment of the single and continuous infringement in the contested decision the Commission made references to other parts of that decision, in which the conduct of each meeting is described in detail, did not prevent the applicants from knowing the reasons for the measure.

153 On that basis, the third part of the second plea must be dismissed as unfounded.

154 Thus, it must be held that the Commission did not err in finding that the applicants had participated in a single and continuous infringement.

155 Consequently, the Court must reject the second plea in its entirety as unfounded.

156 Furthermore, in the light of the considerations set out in paragraphs 29 and 30 above, the first ground of appeal must also be rejected as ineffective. The Commission classified the activities in NWE principally as a single and continuous infringement. It is apparent from the assessment of the second plea that the Commission did not err in finding that the applicants had participated in such an infringement. The arguments raised by the applicants as part of the first plea, by which they dispute, in essence, the Commission's finding that those activities, during the same period of infringement, taken individually, may also be classified as separate infringements, are not therefore capable of calling into question the validity of Article 1(3) of the contested decision.

The third plea in law: the Commission infringed the principles of proportionality and equal treatment, its own Guidelines on the setting of fines, and the duty to state reasons, by failing to consider, when determining the fines to be imposed on the applicants, individual circumstances which warranted reductions of those fines

157 The present plea is divided into two parts, the first alleging breach of the principle of proportionality, and the second a breach of the principle of equal treatment in that the Commission failed to take into consideration the minor and limited nature of the participation of the Huhtamäki Group in the cartel in NWE.

Breach of the principle of proportionality

158 The applicants contend, in essence, that the Commission infringed the principle of proportionality by failing to take into account, either when determining the weighting of the gravity of the infringement or when considering adjustments to the basic amount of the fine, the minor and limited nature of the Huhtamäki Group's involvement in the single and continuous infringement in NWE.

159 The Commission disputes those arguments.

- The complaint concerning the gravity weighting

160 The applicants essentially criticise the Commission on the ground that it determined a blanket gravity weighting of 16% for each of the five separate cartels dealt with in the contested decision and for each participating undertaking within those five cartels. The Huhtamäki Group, moreover, was not even referred to in the relevant section of the contested decision concerning the gravity percentage.

161 As a preliminary point, on the one hand, it must be observed, as the Commission submits, that the applicants do not claim that the degree of gravity of the infringement as a whole is excessive and disproportionate. Rather, they rely on the fact that the fine imposed is disproportionate in the light of the allegedly minor and limited nature of the participation of the Huhtamäki Group in that infringement.

162 On the other hand, it should be noted that the applicants do not dispute the fact that the Commission is not required to carry out an individual assessment at the first stage of the determination of the amount of the fine, namely when determining the basic amount. They submit that the Commission is under an obligation to make such an assessment at least at one or other of the two stages of the setting of the fine (determination of the basic amount or adjustment of the fine).

163 In that regard, it must be borne in mind that, pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission may, by decision, impose fines on undertakings or associations of undertakings where, either intentionally or negligently, they infringe the provisions of Article 101 TFEU and Article 102 TFEU.

164 Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement.

165 Points 19 to 23 of the 2006 Guidelines state as follows:

'19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.

20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.

21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.

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

23. Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.'

166 Lastly, as regards the alleged infringement of the principle of proportionality, it should be recalled that, according to the case-law, that principle requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 5 May 1998, United Kingdom v Commission, C 180/96, EU:C:1998:192, paragraph 96).

167 In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of that principle requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof (see, to that effect, judgment of 12 September 2007, Prym and Prym Consumer v Commission, T 30/05, not published, EU:T:2007:267, paragraph 224 and the case-law cited). In particular, that principle requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (judgments of 27 September 2006, Jungbunzlauer v Commission, T 43/02, EU:T:2006:270, paragraph 228, and of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T 446/05, EU:T:2010:165, paragraph 171).

168 As regards cartels, which are considered to be the most serious infringements, the Court has held, after observing that, under point 23 of the 2006 Guidelines, since the proportion of the value of sales taken into account will generally be set 'at the higher end of the scale', the rate should, at the very least, be above 15% (see, to that effect, judgment of 16 June 2011, Ziegler v Commission, T 199/08, EU:T:2011:285, paragraph 141).

169 In the present case, in order to justify a gravity weighting of 16%, the Commission stated, in recitals 1026 and 1027 of the contested decision, on the one hand, that, by reason of their very nature, the price-fixing practices were among the most serious restrictions of competition and, on the other, that the cartel in question was multidimensional in nature.

170 In that regard, it should be noted that, in recital 1027 of the contested decision, the Commission stated that it had added an additional percentage point on account of the multifaceted nature of the infringement by using the phrase 'given the multi-faceted character of each of the five separate cartels'. However, it is clear from a reading of that recital that the cartel in NWE was the only one of the five cartels which included a single anticompetitive aspect, namely a price increase.

171 The Commission stated during the procedure before the Court that it was apparent from recital 503 of the contested decision that, first, the purpose of the cartel in NWE was not only to increase prices and to maintain them at a certain level, but also to preserve the status quo of the market, and that, secondly, that cartel also included the exchange of commercially sensitive information, in particular with the aim of monitoring the price increases agreed upon. However, it must be observed that the findings in that recital are not mentioned in the assessment made in recital 1027 of that decision.

172 As regards the Commission's argument that the NWE cartel had a geographical scope covering eight States, it must be held that, even though that is true, the reference to geographic scope does not appear in recital 1027 to the contested decision.

173 Moreover, in recital 1031 of the contested decision, which is devoted to the assessment of the geographical dimension of the infringements, the Commission concluded that it did not use the geographical dimension in order to increase the gravity weighting of each of the infringements found to have occurred, on the ground that the five separate cartels had been defined on the basis of the geographical area served and that none of them covered all or most of the territory of the European Economic Area (EEA).

174 Thus, it must be held that the reasons put forward by the Commission in recital 1027 of the contested decision in order to justify the addition of an additional percentage point by reason of the multifaceted nature of the cartel in NWE are incorrect.

175 However, as part of the exercise of the Court's unlimited jurisdiction, it must be held that, even in the case of a cartel relating solely to an increase in prices, a rate of 16% is proportionate, in so far as it is a weighting which is located towards the bottom of the upper band of the scale set out in point 21 of the 2006 Guidelines, ranging from 0 to 30%, and which reflects the gravity of the infringement at issue.

176 Moreover, the fact that the Commission applied an identical gravity weighting for each of the five cartels at issue in the contested decision and for each undertaking taking part in those five cartels is irrelevant to the finding that a gravity weighting of 16% in the present case was neither disproportionate nor inappropriate in view of the infringement at issue (see, to that effect, judgment of 15 December 2016, Philips and Philips France v Commission, T 762/14, not published, EU:T:2016:738, paragraph 326).

177 In those circumstances, while it must be held that the reasons put forward by the Commission to justify the 16% rate are incorrect, the fact remains that, in view of the circumstances described in paragraphs 175 and 176 above, such a rate is appropriate.

178 Accordingly, this complaint must be rejected.

- The complaintalleging the existence of mitigating circumstances

179 The applicants essentially contend that there are a number of mitigating circumstances which, in accordance with point 29 of the 2006 Guidelines, justify a substantial reduction in the amount of the fine in respect of the Huhtamäki Group's participation in the cartel in NWE. In that regard they refer, first, to that group's allegedly sporadic and limited participation, particularly in view, first, of its absence from key meetings on price increases in spring/summer 2002, summer/autumn 2004, and during contacts in 2006 and, secondly, its allegedly limited involvement in the bilateral exchange of information and kick-off for the 'MAP IK' in 2005. The applicants then rely on the fact that there is no allegation that they participated in market or customer-sharing activities, and that they have no responsibility for collusion in respect of the 'Nordic countries'. Lastly, they point out that that group did not implement any of the agreements allegedly concluded with its competitors.

180 In that regard, it should be recalled that the Court of Justice has held that the General Court correctly held that it was open to the Commission to take into account the relative gravity of the participation of an undertaking in an infringement and the particular circumstances of the case when assessing the gravity of the infringement or when adjusting the basic amount of the fine according to the mitigating and/or aggravating circumstances (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C 444/11 P, not published, EU:C:2013:464, paragraph 103).

181 According to settled case-law, the grant of a reduction of the basic amount of the fine in respect of mitigating circumstances is necessarily linked to the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful agreement. To recognise a mitigating circumstance in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement could encourage undertakings to continue a secret agreement as long as possible, in the hope that their conduct would never be discovered, while knowing that if it were discovered they could expect, by then curtailing the infringement, their fine to be reduced. Such a recognition would deprive the fine imposed of any deterrent effect and would undermine the effectiveness of Article 101(1) TFEU (see, to that effect, judgment of 9 July 2009, Archer Daniels Midland v Commission, C 511/06 P, EU:C:2009:433, paragraphs 104 and 105 and the case-law cited).

182 Point 29 of the 2006 Guidelines states as follows:

'The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:

...

- where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount; ...'

183 As is apparent from point 29 of the 2006 Guidelines, the Commission is under no obligation always to take account separately of each of the mitigating circumstances listed: it 'may' reduce the basic amount. Although the circumstances in the list in that point 29 are certainly among those which may be taken into account by the Commission in a specific case, it is not required to grant a further reduction as a matter of course once an undertaking has put forward evidence of the existence of one of those circumstances; the appropriateness of any reduction of the fine in respect of mitigating circumstances must be examined comprehensively on the basis of all the relevant circumstances.

184 In the present case, as regards the applicants' argument that the Commission should have taken into consideration the allegedly sporadic and limited nature of the participation of the Huhtamäki Group in the cartel in question, and the fact that that group was absent at certain meetings and the alleged absence of responsibility for collusion in respect of the 'Nordic countries', it must be recalled, as is apparent from the analysis of the second plea, that the Commission was right to take the view that that group had participated in a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement relating to foam trays and rigid trays in NWE.

185 Next, as regards the applicants' argument alleging failure to implement the cartel, it must be rejected. In that regard, on the one hand, it is apparent from recitals 804 and 1032 of the contested decision that the Commission did not increase the gravity weighting of the infringement in question by taking account of the implementation of the cartel, even though it considered that the arrangements had, in general, been implemented. On the other hand, the applicants have not established that they opposed that cartel to the point of disrupting its smooth functioning, a requirement which is however set out in the case-law in order for non-implementation justifying a reduction of the amount of the fine in respect of mitigating circumstances to be recognised. According to the case-law, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the agreement in question. The fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself in the market in the manner agreed with its competitors does not necessarily have to be taken into account, as a mitigating circumstance, when the amount of the fine to be imposed is determined (see, to that effect, judgments of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T 83/08, not published, EU:T:2012:48, paragraph 248 and the case-law cited, and of 9 September 2015, Panasonic and MT Picture Display v Commission, T 82/13, EU:T:2015:612, paragraph 178 (not published)).

186 In addition, the applicants' argument that the Huhtamäki Group did not participate in market or customer-sharing activities must be rejected as ineffective, in so far as it is apparent from recitals 725 and 1027 of the contested decision that such conduct was not specifically found to have been committed by any of the members of the cartel, including that group, in the context of the cartel in NWE.

187 Finally, the applicants do not explain how, by not granting them the benefit of a mitigating circumstance, the Commission infringed the principle of proportionality.

188 Even assuming that, by their arguments which, in essence, consist of suggesting the minor and limited nature of the Huhtamäki Group's involvement in the infringement at issue, the applicants seek to establish that the role of that group was exclusively passive in the cartel, it must be noted, first, that, although that fact was expressly mentioned as a possible mitigating circumstance in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3), it is no longer one of the mitigating circumstances which can be used when applying the 2006 Guidelines. That therefore manifests a deliberate political choice to no longer 'encourage' passive conduct by those participating in an infringement of the competition rules. That choice falls within the discretion of the Commission in determining and implementing competition policy (see, to that effect, judgment of 9 September 2015, Panasonic and MT Picture Display v Commission, T 82/13, EU:T:2015:612, paragraph 181 (not published)).

189 Moreover, an 'exclusively passive or follow-my-leader' role in the infringement implies, by definition, that the undertaking concerned will adopt a 'low profile', that is to say not actively participate in the creation of any anticompetitive agreements (see, to that effect, judgment of 9 July 2003, Cheil Jedang v Commission, T 220/00, EU:T:2003:193, paragraph 167). It is clear from case-law that one factor that may indicate that an undertaking has played a passive role in a cartel is where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel; another is where a representative of another undertaking which has participated in the infringement makes an express declaration regarding the role played by that undertaking in the cartel, regard being had to all the relevant circumstances of the individual case (see judgment of 9 July 2003, Cheil Jedang v Commission, T 220/00, EU:T:2003:193, paragraph 168 and the case-law cited).

190 In the present case, the Huhtamäki Group participated in three of the five multilateral meetings held during its participation in the infringement in question and in several bilateral contacts of an anticompetitive nature with the other participants in the cartel in question. In addition, none of the participants in the cartel stated that the applicants had adopted a 'low profile' during the cartel.

191 For those reasons, it cannot be considered that the role of the Huhtamäki Group was exclusively passive.

192 For the sake of completeness, it should be recalled that the fact that other undertakings participating in the same cartel may have been more active than a given participant does not necessarily imply that the latter had an exclusively passive or follow-my-leader role. In fact, only complete passivity could be taken into account and must be established by the party alleging it (see, to that effect, judgment of 13 September 2010, Trioplast Industrier v Commission, T 40/06, EU:T:2010:388, paragraph 108 and the case-law cited).

193 Moreover, it is clear from the case-law that, as a matter of principle, a participant in an infringement cannot allege a mitigating circumstance deriving from the conduct of the other participants in the infringement (judgment of 29 November 2005, Union Pigments v Commission Case, T 62/02, EU:T:2005:430, paragraph 125).

194 Accordingly, the fact that the other cartel members became involved in the cartel earlier, or more deeply, might well constitute an aggravating circumstance in relation to them but not a mitigating circumstance in favour of the Huhtamäki Group (see, to that effect, judgment of 14 May 2014, Reagens v Commission, T 30/10, not published, EU:T:2014:253, paragraph 285 and the case-law cited).

195 Therefore, the Commission was entitled to consider, in the light of all those factors, that the grant of mitigating circumstances was not justified. In those circumstances, it is irrelevant that the Huhtamäki Group was not mentioned in the part of the contested decision concerning mitigating circumstances.

196 Consequently, the applicants' complaint based on the exclusively passive role of the Huhtamäki Group must be rejected as unfounded.

197 It follows from the foregoing that the first part of the third plea, alleging breach of the principle of proportionality, must be rejected as unfounded.

Infringement of the principle of equal treatment

198 The applicants essentially submit that the Commission infringed the principle of equal treatment by applying the same gravity weighting to them as to the other addressees of the contested decision in respect of the infringement in NWE, and particularly by failing to acknowledge the Huhtamäki Group's substantially limited role in the infringement in comparison with other participants.

199 In that regard, it must be recalled that the principle of equal treatment constitutes a general principle of law which the Commission must respect in a procedure brought under Article 101 TFEU and which prevents comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified (judgment of 29 June 2012 in GDF Suez v Commission, T 370/09, EU:T:2012:333, paragraph 386).

200 In the present case, it is apparent from the clarifications provided by the applicants in the reply that, by their arguments, put forward in the second part of the third plea, they criticise the Commission for having failed 'to take into account [the Huhtamäki Group's] limited role ... in the single and continuous infringement'. They add that 'the Commission had an obligation to consider, either when determining the gravity percentage of the fine or when considering adjustments to the basic amount of the fine, individual circumstances specific [to that group]'.

201 However, it appears from the analysis carried out in the first part of the third plea in law that, on the one hand, the gravity weighting of 16% in respect of the infringement in NWE is appropriate (see paragraph 176 above) and, on the other hand, the Commission could consider, in the light of all the relevant factors, that the granting of mitigating circumstances to the Huhtamäki Group was not justified (see paragraph 195 above).

202 Moreover, it should be added that the two arguments put forward by the applicants in relation to infringement of the principle of equal treatment are, in essence, the same as those set out in the first part of the third plea and that those arguments must therefore be rejected on the same grounds as those set out in the examination of that part of the plea.

203 In the first place, in order to reject the applicants' argument that the alleged degree of involvement of the Huhtamäki Group distinguishes it from the 'hard core' of the cartel at issue, namely Linpac, Vitembal and Silver Plastics, it suffices to refer to paragraphs 192 to 194 above.

204 In the second place, with regard to the applicants' argument that, unlike the other participants in the cartel in question, it is not apparent from the contested decision that the Huhtamäki Group implemented the price increases, it suffices to refer to paragraph 185 above.

205 Accordingly, the second part of the third plea, alleging breach of the principle of equal treatment, must also be rejected as unfounded.

206 In light of the foregoing, the third plea in law must be rejected as unfounded.

The fourth plea in law: the Commission infringed Articles 101 TFEU, 53 EEA and 23(2) of Regulation No 1/2003 in finding the first applicant to be jointly and severally liable with its former subsidiaries for infringements committed in France and SWE

207 The applicants essentially claim that the first applicant did not exercise a decisive influence over its subsidiaries Huhtamäki Embalagens Portugal SA, now ONO Packaging Portugal SA ('Huhtamäki Embalagens') and Huhtamäki France SA, now Coveris Rigid France SAS ('Coveris') during the infringements committed in SWE and France respectively.

208 In the first place, the first applicant's division relating to the foam tray business in SWE formed one and the same undertaking consisting of Coveris and Huhtamäki Embalagens for the purposes of EU competition law. They acted on the basis of one common commercial strategy. Coveris had the power to determine the commercial strategy of Huhtamäki Embalagens in respect of its foam tray activities.

209 In the second place, the first applicant's subsidiaries benefited from an exceptional degree of commercial autonomy, as the latter had only limited knowledge of the specific nature of their business.

210 Thirdly, the strategic interests of the first applicant's senior management and those of its subsidiaries were not aligned during the periods of the infringements, particularly as the Huhtamäki Group was involved in a restructuring process which resulted in Mr A., a Coveris employee, taking on the SWE foam tray business.

211 The Commission disputes those arguments.

212 It should be pointed out that the conduct of a subsidiary can be imputed to its parent company, in particular where, although it has 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 29 September 2011, Elf Aquitaine v Commission, C 521/09 P, EU:C:2011:620, paragraph 54 and the case-law cited).

213 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 101 TFEU, 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 of 29 September 2011, Elf Aquitaine v Commission, C 521/09 P, EU:C:2011:620, paragraph 55 and the case-law cited). In other words, the factor which entitles the Commission to address the decision imposing fines to the parent company is not necessarily a parent-subsidiary relationship in which the parent company instigates the infringement; nor, a fortiori, is it because of the parent company's involvement in the infringement; rather, it is because the companies concerned constitute a single undertaking for the purposes of Article 101 TFEU (judgment of 29 September 2011, Elf Aquitaine v Commission, C 521/09 P, EU:C:2011:620, paragraph 88).

214 Moreover, the Court has stated that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise such a decisive influence ( the 'presumption of actual exercise of decisive influence') (see judgment of 29 September 2011, Elf Aquitaine v Commission, C 521/09 P, EU:C:2011:620, paragraph 56 and the case-law cited).

215 The purpose of the presumption of actual exercise of decisive influence is, in particular, to strike a balance between, on the one hand, the importance of the objective of suppressing conduct contrary to the competition rules, in particular to Article 101 TFEU, and of preventing a repetition of such conduct, and, on the other hand, the importance of the requirements flowing from certain general principles of EU law such as the principle of the presumption of innocence, the principle that penalties must be specific to the offender, the principle of legal certainty and the principle of the rights of the defence, including the principle of equality of arms. It is for that reason, among others, that the presumption is rebuttable (judgment of 29 September 2011, Elf Aquitaine v Commission, C 521/09 P, EU:C:2011:620, paragraph 59). It follows that such a presumption is proportionate to the legitimate aim pursued (judgment of 18 July 2013, Schindler Holding and Others v Commission, C 501/11 P, EU:C:2013:522, paragraph 108).

216 Accordingly, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent actually exercises decisive influence over the subsidiary's commercial policy. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see judgment of 29 September 2011, Elf Aquitaine v Commission, C 521/09 P, EU:C:2011:620, paragraph 57 and the case-law cited).

217 A parent company may be held liable for an infringement committed by a subsidiary even where there is a large number of operating companies in a group (judgments of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v Commission, T 305/94 to T 307/94, T 313/94 to T 316/94, T 318/94, T 325/94, T 328/94, T 329/94 and T 335/94, EU:T:1999:80, paragraph 989, and of 27 September 2012, Shell Petroleum and Others v Commission, T 343/06, EU:T:2012:478, paragraph 52).

218 Moreover, it has been held that the presumption of actual exercise of decisive influence also applied where the parent company held the capital of its subsidiary, not directly, but, as in the present case, through other companies (see, to that effect, judgments of 20 January 2011, General Química and Others v Commission, C 90/09 P, EU:C:2011:21, paragraph 86, and of 15 July 2015, GEA Group v Commission, T 45/10, not published, EU:T:2015:507, paragraph 142).

219 In addition, the presumption of actual exercise of decisive influence is based on the fact that, save in quite exceptional circumstances, a company holding all the capital of a subsidiary can, by dint of that shareholding alone, exercise decisive influence over that subsidiary's conduct and that it is within the sphere of operations of those entities against whom the presumption operates that evidence of the lack of actual exercise of that power to influence is generally apt to be found. In those circumstances, if, in order to rebut that presumption, it were sufficient for a party concerned to put forward mere unsubstantiated assertions, the presumption would be largely robbed of its usefulness (judgment of 29 September 2011, Elf Aquitaine v Commission, C 521/09 P, EU:C:2011:620, paragraphs 60 and 61).

220 In order to rebut the presumption of actual exercise of decisive influence, a parent company must, in the context of the actions against a Commission decision, put before the EU judicature any evidence relating to the organisational, economic and legal links between its subsidiary and itself which are such as to demonstrate that they do not constitute a single economic entity (see judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C 155/14 P, EU:C:2016:446, paragraph 32 and the case-law cited).

221 Moreover, the fact that it is not apparent from the documents in the file that the parent company gave instructions to its subsidiary is insufficient to rule out the possibility that the parent company did in fact exercise a decisive influence over that subsidiary (see, to that effect, judgment of 13 July 2011, Shell Petroleum and Others v Commission, T 38/07, EU:T:2011:355, paragraph 70).

222 It should be pointed out that, while the Court of Justice, in its case-law, has referred to other circumstances, such as the absence of any challenge to the influence exercised by the parent company over the commercial policy of its subsidiary and the joint representation of the two companies during the administrative procedure, the fact remains that such circumstances have not been identified with the aim of making the implementation of the presumption subject to the production of additional evidence that the parent company in fact exercised influence. In other words, the Commission is not required, in order to apply the presumption of actual exercise of decisive influence in a given case, to provide indicia over and above those demonstrating the applicability and effectiveness of that presumption (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C 521/09 P, EU:C:2011:620, paragraph 80 and the case-law cited).

223 In the contested decision, the Commission held jointly and severally responsible, on the one hand, the first applicant and Huhtamäki Embalagens for the infringement in SWE from 7 December 2000 to 18 January 2005 and, on the other hand, the first applicant and Coveris for the infringement in France from 3 September 2004 to 24 November 2005.

224 The direct participants in the infringements in SWE and France were Huhtamäki Embalagens and Coveris respectively. Throughout the duration of the infringements, the first applicant indirectly held 100% of the shares in the two abovementioned companies. Accordingly, the Commission presumed that the first applicant had exercised a decisive influence over the conduct of its subsidiaries which were directly involved in the two abovementioned infringements.

225 In the present case, it must be observed that, by the present plea, the applicants do not dispute the fact that the first applicant indirectly held 100% of the capital of Coveris and Huhtamäki Embalagens throughout the duration of the infringements in SWE and France. However, they claim that the first applicant did not in fact exercise a decisive influence over its subsidiaries during those infringements.

226 Moreover, the applicants do not challenge the factual assessment contained in the contested decision that there were economic, organisational and legal links between the first applicant and its subsidiaries. Nor do they comment on the evidence referred to in that decision. They merely claim an alternative version of the facts, without really providing evidence capable of rebutting the presumption of actual exercise of decisive influence.

227 First of all, as regards the applicants' argument that Coveris and Huhtamäki Embalagens formed one and the same undertaking for the purposes of EU competition law, given that Coveris had the power to determine Huhtamäki Embalagens's commercial strategy, and that the two companies were acting on the basis of a common commercial strategy, defined by Mr A., an employee of Coveris, it suffices to note that the fact that a subsidiary enjoys a degree of commercial autonomy is not in itself sufficient to establish that it does not form a single undertaking with its parent company within the meaning of Article 101 TFEU (see, to that effect, judgment of 8 May 2013, Eni v Commission, C 508/11 P, EU:C:2013:289, paragraph 64).

228 Next, the applicants' argument that the two subsidiaries of the first applicant were distinguished by an exceptional degree of commercial autonomy and carried out their own daily commercial operations, thus operating autonomously, must also be rejected. Operational independence does not, in itself, prove that a subsidiary decides upon its conduct on the market independently of its parent company. The division of tasks between subsidiaries and their parent companies and, in particular, the fact that the local management of a wholly owned subsidiary is entrusted with operational management is normal practice in large undertakings composed of a multitude of subsidiaries ultimately owned by the same holding company (see, to that effect, judgment of 11 July 2014, RWE and RWE Dea v Commission, T 543/08, EU:T:2014:627, paragraph 49 and the case-law cited).

229 That approach is justified, moreover, by the fact that, in the case of a subsidiary which is wholly, or almost wholly, owned by a sole parent company, there is in principle a single commercial interest and the members of the subsidiary's bodies are designated and appointed by the sole shareholder, which may give them at least informal instructions and impose performance criteria on them. In such a case, therefore, there is necessarily a relationship of confidence between the management of the subsidiary and the management of the parent company and the management of the subsidiary necessarily acts by representing and promoting the only commercial interest that exists, namely the interest of the parent company. Thus, the unity of the market conduct of the parent company and of its subsidiary is ensured in spite of any autonomy conferred on the management of the subsidiary as regards its operational management, which comes within the definition of the parent company's commercial policy in the strict sense. As a general rule, moreover, it is the sole shareholder that defines, on its own and according to its own interests, the procedure whereby the subsidiary takes decisions and that determines the extent of the subsidiary's operational autonomy, which it may change on its own initiative by amending the rules governing the functioning of the subsidiary or in the context of a restructuring, or indeed by setting up informal decision-taking structures. Therefore, as a general rule, the management of the subsidiary thus ensures that the subsidiary's commercial conduct complies with that of the rest of the group in the exercise of their autonomous powers (see, to that effect, judgment of 11 July 2014, RWE and RWE Dea v Commission, T 543/08, EU:T:2014:627, paragraph 50 and the case-law cited).

230 Furthermore, the mere fact that the share capital of two separate commercial companies belong to the same company, and, in the present case, to the first applicant, is insufficient, in itself, to establish that those two companies are an economic unit with the result that, under EU competition law, the actions of one company can be attributed to the other and that one can be held liable to pay a fine for the other (see, to that effect, judgment of 2 October 2003, Aristrain v Commission, C 196/99 P, EU:C:2003:529, paragraph 99).

231 That conclusion cannot be called into question either by the fact that there had been no overlap of personnel between the parent company and subsidiaries, or by the differences between the technologies used within the Huhtamäki Group.

232 Finally, the Court must also reject the applicants' argument that the interests of the first applicant and those of its two subsidiaries in question were not aligned during the periods of infringement, in particular because, during those periods, it was involved in a restructuring process.

233 In that regard, it should be noted that the exercise of decisive influence by the parent company over its subsidiary is not incompatible with a decision by the parent to divest itself of that subsidiary or part of the assets of that subsidiary. An undertaking may evolve, by acquiring new companies and integrating them into the existing structure or, conversely, by transferring them to third parties and, consequently, separating the existing structure from a greater or lesser part of the company. However, what matters for the attribution of liability for an infringement of the competition rules is the composition of the undertaking in question during the period to which the infringement relates. The fact that a subsidiary has been sold shortly after the infringement period does not necessarily mean that, during that period, its parent company did not influence its commercial policy decisively (see, to that effect, judgment of 23 January 2014, Evonik Degussa and AlzChem v Commission, T 391/09, not published, EU:T:2014:22, paragraph 94).

234 Consequently, the applicants' arguments alleging that the first applicant did not exercise a decisive influence over its two subsidiaries in question, namely Coveris and Huhtamäki Embalagens, during the period of the infringements in France and SWE and, consequently, the fourth plea in law, must be rejected as unfounded.

235 In addition, as regards the applicants' request that the Court reduce the amount of the fines imposed on them, it must be borne in mind, in that regard, that, according to the case-law, the unlimited jurisdiction conferred on the Courts of the European Union by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the Court, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission's and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C 386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited).

236 Furthermore, the exercise of that jurisdiction does not amount to a review of the Court's own motion, and proceedings are inter partes. It is, in principle, for the applicant to raise pleas in law against the contested decision and to adduce evidence in support of those pleas (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C 434/13 P, EU:C:2014:2456, paragraph 76 and the case-law cited).

237 Moreover, in order to satisfy the requirements of Article 47 of the Charter of Fundamental Rights when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C 434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited).

238 In the present case, it must be held that, as regards the amount of the fines imposed on the applicants, which they contest, they do not put forward any specific arguments in support of their request for a reduction in the amount of the fines, confining themselves, in only one of their subsidiary pleadings, to requesting a substantial reduction in the fine imposed on them. In those circumstances, the applicants do not satisfy the requirement, as referred to in the case-law cited in paragraph 236 above, to put forward pleas in support of their request.

239 Accordingly, it must be held that the General Court cannot of its own motion, in the exercise of its unlimited jurisdiction, review all the pleas in law and evidence relied on in support of the application for annulment of the contested decision without the applicants having shown which of those pleas or evidence concretely and specifically demonstrate the alleged inappropriateness of the fine.

240 In any event, even if the applicants, in support of their application for reduction of the fines imposed on them, rely on the more limited scope of the participation of the Huhtamäki Group in the cartel in NWE, it must be held that such a reduction should not be made in this respect, since that group participated in several multilateral meetings and several bilateral contacts of an anticompetitive nature with the other participants in the cartel in question and did not have an exclusively passive or follow-my-leader role.

241 Therefore, the action must be dismissed in its entirety.

Costs

242 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs in their entirety in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1. Dismisses the action;

2. Orders Huhtamäki Oyj and Huhtamaki Flexible Packaging Germany GmbH & Co KG to pay the costs.