Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

17 December 2014 (*)

(Competition — Agreements, decisions and concerted practices — European market in carglass — Decision finding an infringement of Article 81 EC — Market-sharing agreements and exchanges of commercially sensitive information — Fines — Rights of defence –– Retroactive application of the 2006 Guidelines on the method of setting fines — Value of sales — Passive or minor role — Deterrent effect of the fine — Taking into account fines previously imposed — Ceiling of the fine –– Exchange rate for the calculation of the ceiling of the fine)

In Case T‑72/09,

Pilkington Group Ltd, established in St Helens (United Kingdom),

Pilkington Automotive Ltd, established in Lathom (United Kingdom),

Pilkington Automotive Deutschland GmbH, established in Witten (Germany),

Pilkington Holding GmbH, established in Gelsenkirchen (Germany),

Pilkington Italia SpA, established in San Salvo (Italy),

represented by J. Scott, S. Wisking, K. Fountoukakos-Kyriakakos, Solicitors, J. Turner QC, A. Bates, Barrister, C. Puech Baron and D. Katrana, lawyers,

applicants,

v

European Commission, represented initially by F. Castillo de la Torre, A. Biolan and M. Kellerbauer, subsequently by A. Biolan, M. Kellerbauer and N. von Lingen and lastly by A. Biolan, M. Kellerbauer and F. Ronkes Agerbeek, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (COMP/39.125 — Carglass), as amended by Commission Decision C(2009) 863 final of 11 February 2009 and also by Commission Decision C(2013) 1119 final of 28 February 2013, in so far as it concerns the applicants, and also, in the alternative, for annulment of Article 2 of that decision in that it imposes a fine on the applicants or, in the further alternative, application for reduction of that fine,

THE GENERAL COURT (Second Chamber),

composed of N.J. Forwood (Rapporteur), President, F. Dehousse and J. Schwarcz, Judges,

Registrar: N. Rosner, Administrator,

Having regard to the written procedure and further to the hearing on 5 November 2013,

gives the following

Judgment

 Background to the dispute

1        By Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.125 — Carglass; ‘the contested decision’), the Commission of the European Communities found, inter alia, that a number of companies, including the applicants, Pilkington Group Ltd, Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH and Pilkington Italia SpA, had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), by participating in a set of agreements and concerted practices in the automotive glass sector in the EEA (Article 1 of the contested decision).

2        According to the contested decision, the infringement in question was a single and continuous infringement consisting in the concerted allocation of contracts concerning the supply of carglass pieces and/or carsets, generally consisting of a windscreen, side windows and rear windows, to the major car manufacturers in the EEA. That concerted action, according to the Commission, took the form of the coordination of pricing policies and supply strategies aimed at maintaining an overall stability of the parties’ position on the market concerned. That stability was ensured, in particular, by correcting measures implemented when the cartel had not produced the results envisaged.

3        According to the contested decision, the cartel lasted from 10 March 1998 until 11 March 2003, although the participation therein of certain undertakings was for a shorter period.

4        Pilkington Group Ltd consists, inter alia, of Pilkington Automotive, Pilkington Automotive Deutschland, Pilkington Holding and Pilkington Italia. The applicants form together one of the largest manufacturers of glass and glazing products in the world, in particular in the automobile sector. Saint-Gobain Glass France SA, Saint-Gobain Sekurit Deutschland GmbH & Co. KG and Saint-Gobain Sekurit France SAS (together ‘Saint-Gobain’), which have also brought an action for annulment of the contested decision (Case T‑56/09), are companies active in the production, processing and distribution of materials, including carglass. They are wholly-owned subsidiaries of Compagnie de Saint-Gobain (‘Compagnie’), which also seeks annulment of the contested decision (Case T‑73/09). Soliver NV (‘Soliver’), which has also brought an action for annulment of the contested decision (T‑68/09), is a smaller glass manufacturer, active in, among other areas, the carglass sector. Those undertakings are all addressees of the contested decision.

5        That decision was also addressed to Asahi Glass Co. Ltd (‘Asahi’), which has not, however, brought an action against it. Asahi, which holds all the shares in the Belgian glass manufacturer Glaverbel SA/NV (‘Glaverbel’), which itself holds 100% of AGC Automotive France, is a producer of glass, chemicals and electronic components, established in Japan. Before 1 January 2004, AGC Automotive France was known as Splintex Europe SA (‘AGC (Splintex)’ or ‘the leniency applicant’).

6        The investigation which led to the adoption of the contested decision was initiated after the Commission received letters from a German lawyer, acting on behalf of an unidentified client, containing information relating to agreements and concerted practices between various undertakings active in the production and distribution of carglass.

7        In February and March 2005 the Commission carried out inspections at various premises of the applicants and also of Saint-Gobin, Compagnie, Soliver and AGC (Splintex). The Commission seized several documents and files in the course of those inspections.

8        Following those inspections, Asahi, Glaverbel and their relevant subsidiaries submitted an application for immunity from or a reduction of the fine, pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’). The application for conditional immunity from fines was rejected by the Commission on 19 July 2006, although the Commission informed the leniency applicant that, pursuant to point 26 of the 2002 Leniency Notice, it intended to apply to it a reduction of 30 to 50% of the fine which would normally have been imposed on it.

9        Between 26 January 2006 and 2 February 2007, the Commission sent various requests for information to the applicants and also to Saint-Gobain, Compagnie, Soliver, Asahi, Glaverbel and AGC, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1). The undertakings concerned replied to those various requests.

10      In addition, the Commission sent requests for information, on the same basis, to a number of car manufacturers, to an Italian coach manufacturer and also to two glass industry trade associations, which replied to those requests.

11      On 18 April 2007 the Commission adopted a statement of objections relating to a single and continuous infringement consisting in agreements or concerted practices between producers with a view to the allocation of contracts for the supply of carglass. That statement of objections was served on the applicants and also on Saint-Gobain, Compagnie, Soliver, Asahi, Glaverbel and AGC (Splintex). Each of the undertakings to which that statement of objections was addressed had access to the file and was invited by the Commission to submit observations in that respect. A hearing, in which all of those addressees took part, was held on 24 September 2007.

 The contested decision

12      The Commission adopted the contested decision on 12 November 2008. The Commission considered that the applicants had participated in the agreements and concerted practices in question from 10 March 1998 to 3 September 2002 (Article 1(c) of the contested decision) and imposed on them a fine of EUR 370 million, for which they were held jointly and severally liable (Article 2(c) of the contested decision).

13      As regards Saint-Gobain and Compagnie, the Commission found that they had participated in the agreements and concerted practices referred to in paragraphs 1 and 2 above from 10 March 1998 to 11 March 2003 (Article l(b) of the contested decision) and imposed on them a fine of EUR 896 million, for which they were held jointly and severally liable (Article 2(b) of the contested decision).

14      Asahi, together with its subsidiaries active in the carglass sector, which were found to have participated in the infringement during the period between 18 May 1998 and 11 March 2003, were ordered to pay a fine of EUR 113.5 million for which they were held jointly and severally liable (Article 1(a) and Article 2(a) of the contested decision).

15      As regards, lastly, Soliver, the Commission considered that it had participated in the infringement from 19 November 2001 to 11 March 2003 (Article 1(d) of the contested decision). The Commission imposed a fine of EUR 4 396 000 on that undertaking (Article 2(d) of the contested decision).

16      In the contested decision, the Commission proceeds on the basis that the characteristics of the carglass market, namely, in particular, significant technical requirements and a high degree of innovation, favour large integrated suppliers with a global reach. The applicants AGC (Splintex) and Saint-Gobain are among the main carglass manufacturers in the world and together covered, at the time of the contested decision, around 76% of world demand for glass for the original equipment market (carglass fitted in the factory while the vehicle is being assembled). The Commission also found a significant volume of trade in carglass between Member States and European Free Trade Association (EFTA) Member States forming part of the EEA.

17      Furthermore, according to the Commission, car manufacturers negotiate contracts for the purchase of carglass at EEA level.

18      According to the contested decision, the carglass suppliers investigated by the Commission continuously monitored their respective market shares during the period under consideration, not only per ‘vehicle account’ — that is to say, having regard to the amount of sales per vehicle model — but also globally, all vehicle accounts together.

19      The Commission observes, in that respect, that the applicants, Saint-Gobain and AGC (Splintex) participated in trilateral meetings, called ‘club meetings’. Those meetings, organised by each of those undertakings in turn, were held in hotels in various towns, in the private homes of employees of those undertakings and also at the premises of the trade association ‘Groupement européen de producteurs de verre plat’ (European Flat Glass Producers’ Group) (‘GEPVP’) and at the premises of the ‘Associazione nazionale degli industriali del vetro’ (National Association of Glass Producers) (‘Assovetro’).

20      Bilateral meetings or contacts were also arranged between those competitors, in order to discuss supplies of carglass for current or future models. Those various meetings concerned the evaluation and monitoring of market shares, the allocation of supplies of carglass to manufacturers and the exchange of information on prices, as well as the exchange of other commercially sensitive information and the coordination of the pricing and supply strategies of those various competitors.

21      The first of those bilateral meetings, attended by Saint-Gobain and the applicants, took place on 10 March 1998 at the Hyatt Regency hotel at Charles de Gaulle Airport, in Paris (France). The first trilateral meeting took place in the spring of 1998, at the private home of the large accounts manager of Splintex (AGC) at that time, at Königswinter (Germany). Those meetings were preceded, in 1997, by exploratory contacts between Saint-Gobain and the applicants, the aim of which was the technical harmonisation of the privacy glass manufactured by those undertakings, in terms of colour, thickness and light transmission. The Commission did not include those contacts in the cartel, however, since they essentially related to an advanced stage in the manufacture of flat glass, before it is transformed into carglass.

22      In the contested decision, the Commission lists almost 90 meetings and contacts between the spring of 1998 and March 2003. The last trilateral contact took place on 21 January 2003, while the last bilateral contact took place during the second half of March 2003, between Saint-Gobain and AGC (Splintex). The participants used abbreviations or code names to identify themselves at those meetings and contacts.

23      Soliver’s participation in the cartel did not begin until 19 November 2001 and lasted until 11 March 2003. Soliver was contacted by Saint-Gobain in 2000 in an attempt to involve it in the cartel. The initial participants (the applicants, Saint-Gobain and AGC (Splintex)) exploited, for that purpose, the fact that Soliver was dependent on the producers of the raw material, as it did not produce flat glass.

24      According to the contested decision, the cartel’s overall plan was to allocate supplies of carglass between the participants, with respect to both existing supply contracts and new contracts. That plan was designed to maintain the stability of the participants’ market shares. In order to achieve that objective, the participants, during the meetings and contacts referred to at paragraphs 19 to 22 above, exchanged price information and other sensitive information and coordinated their pricing and supply policies. In particular, they co-ordinated their replies to requests for price quotations from car manufacturers, in such a way as to influence the car manufacturers’ choice of a glass supplier, or indeed of more than one in the event of multiple supplies. In that respect, the participants had two means of favouring the award of a supply contract to the agreed producer, namely by not quoting at all or by quoting higher prices than that producer. Where necessary, correcting measures, taking the form of compensation granted to one or more participants, were decided on in order to ensure that the global supply situation at EEA level remained in accordance with the agreed allocation. Where correcting measures had to affect current supply contracts, the process used by competitors to adjust the balance of market shares consisted in warning car manufacturers that a technical problem or shortage of raw materials would disrupt deliveries of items ordered and suggesting a replacement supplier. In order to maintain the agreed allocation of contracts, on several occasions the participants in the cartel agreed on price reductions to be granted to car manufacturers by reference to increased productivity, or even on price increases applied to car models where production was lower than forecast. They also agreed, where necessary, to limit the disclosure of information on their actual production costs to car manufacturers, in order to avoid too frequent requests for price reductions from those manufacturers.

25      The coordination aimed at the stability of market shares was made possible, notably, by the transparency on the carglass supply market. The evolution of market shares was calculated on the basis of production costs and sales forecasts, taking pre-existing supply contracts into consideration.

26      The Commission indicates that Asahi and Glaverbel, which sought leniency from the Commission, confirmed that, from 1998 at the latest, representatives of their subsidiary Splintex participated, with competitors, in activities that were unlawful from the aspect of competition law. In addition, the fact that Saint-Gobain did not contest the material facts set out in the statement of objections had to be understood to be an endorsement by that undertaking of the Commission’s description of the meetings and contacts at issue.

27      According to the Commission, the applicants, Saint-Gobain and AGC (Splintex) agreed at a meeting held on 6 December 2001 on a new calculation method for the purpose of allocating and re-allocating supply contracts.

28      It is on the basis of that body of evidence that the Commission holds the applicants, and also Saint-Gobain, Compagnie, Soliver, and the leniency applicant liable for a single and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement. The arrangements concluded between those parties constitute, according to the Commission, agreements or concerted practices within the meaning of those provisions which distorted competition on the carglass market. That collusion was single and continuous since the participants in the cartel expressed their joint intention to behave on the market in a certain way and adopted a common plan to limit their individual commercial autonomy by allocating supplies of carglass for cars and light commercial vehicles and by distorting glass prices with the aim of ensuring overall stability and maintaining artificially high prices on the market. According to the contested decision, the frequency and the uninterrupted nature of those meetings and contacts, over a period of five years, had the consequence that all large manufacturers producing passenger cars and light commercial vehicles in the EEA were covered by the cartel.

29      The Commission also considered that there was no indication that the agreements and concerted practices between carglass suppliers resulted in efficiency benefits or promoted technical or economic progress in the carglass sector that might justify the application of Article 81(3) EC.

30      As regards the identification of the addressees of the contested decision, the Commission considered, in particular, that the applicants formed an economic unit and were part of the same undertaking. Consequently, the Commission held the applicants jointly and severally liable for an infringement of Article 81 EC and of Article 53 of the EEA Agreement.

31      As regards the duration of the infringement, the Commission found that the applicants had participated in the infringement from 10 March 1998 to 3 September 2002. The participation of Saint-Gobain and Compagnie was held to have lasted from 10 March 1998 to 11 March 2003. Lastly, according to the contested decision, Soliver participated in the infringement from 19 November 2001 to 11 March 2003.

32      As regards the calculation of the fines, the Commission first of all determined the value of each participating undertaking’s carglass sales within the EEA that were directly or indirectly connected with the infringement. In doing so, it drew a distinction between several periods of the infringement. For the period beginning in March 1998 and ending on 30 June 2000, described as the ‘roll-out’ period, the Commission considered that it had evidence of the infringement for only a proportion of European car manufacturers. It therefore took into account, for that period, only carglass sales to manufacturers for which it had direct proof of the cartel. As regards the period between 1 July 2000 and 3 September 2002, the Commission observed that the accounts which formed the object of the cartel concerned at least 90% of sales within the EEA. It therefore concluded that, for that period, all sales of carglass within the EEA by the addressees of the decision should be taken into consideration. Lastly, at the end of the infringement period, between 3 September 2002 and March 2003, the cartel’s activities slowed down following the departure of one of the members. Consequently, the Commission decided to take into account, for that period, only sales to car manufacturers for which it had direct proof of the cartel. A weighted annual average of those figures was then determined for each carglass supplier concerned, by dividing the values of sales referred to above by the number of months of the supplier’s participation in the infringement and multiplying the result of that division by 12.

33      The Commission then observed that the infringement in question, which consisted in customer allocation, is among the most serious restrictions of competition. In the light of the nature of the infringement, its geographic scope and the combined market share of the undertakings which had participated, the Commission took, when calculating the basic amount of the fine, a proportion of 16% of the value of sales of each undertaking involved, multiplied by the number of years of its participation in the infringement. In addition, the basic amount of the fines was increased, for the purposes of deterrence, by an ‘entry-fee’ equivalent to 16% of the value of sales.

34      The basic amount of the fine imposed jointly and severally on Saint-Gobain and Compagnie was increased by 60% to reflect the fact that it constituted a repeat infringement. The amount of the fine imposed on Soliver was reduced to 10% of that undertaking’s turnover, in accordance with Article 23(2) of Regulation No 1/2003. A reduction of 50% of the amount of the fine was granted to Asahi and Glaverbel, on the other hand, to take account of the evidence which they had submitted to the Commission and which had enabled it to have a better understanding of the documents collected during the inspections.

35      On 11 February 2009 the Commission adopted Decision C(2009) 863 final, correcting the contested decision on a limited number of points.

36      On 28 February 2013 the Commission adopted Decision C(2013) 1119 final, amending the contested decision with respect, inter alia, to the calculation of the fine imposed on the applicants (‘the amending decision of 28 February 2013’). By that decision, the Commission essentially sought to correct two errors which it believed it had made in that calculation. First, the amount of the sales of carglass to the manufacturer [confidential] (1) for 1999 was corrected in order to reflect accurately the sales figures which had been communicated to the Commission by the applicants. Second, the Commission excluded from the basis for its calculation the applicants’ sales of carglass to the manufacturer [confidential] between the beginning of the infringement and [confidential], in order to take account of the fact that that manufacturer did not become a member of the [confidential] group until [confidential]. As a result of that decision, the new amount of the fine imposed on the applicants was set at EUR 357 million instead of EUR 370 million.

 Procedure and forms of order sought

37      By application lodged at the Court Registry on 18 February 2009, the applicants brought the present action.

38      The applicants claim that the Court should:

–        annul Article 1 of the contested decision in so far as it relates to them;

–        annul Article 2 of the contested decision in so far as it relates to them;

–        substantially reduce the fine imposed on them;

–        order the Commission to pay the costs.

39      In a letter received at the Registry on 15 March 2013 the applicants sought leave to amend their pleadings, in that their action should be understood as being directed against the contested decision as amended by the amending decision of 28 February 2013 referred to in paragraph 36 above.

40      The applicants also requested confidential treatment, as regards the public, of a range of information contained in the report for the hearing, on the ground, in essence, that the disclosure of such commercially sensitive information would be liable to cause them serious harm.

41      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

42      In a letter received at the Registry on 10 April 2013 the Commission stated that it did not formally object to the applicants’ request to amend their pleadings.

43      Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Second Chamber, to which the present case was therefore allocated.

 Law

44      The applicants put forward, in essence, six pleas in law in support of their action, alleging (i) an error in the legal characterisation of the facts and an error in the assessment of the gravity of the infringement; (ii) incorrect assessment of the duration of their participation in the cartel; (iii) the taking into account of inappropriate sales figures in the calculation of the fine, a procedural error and failure to state reasons; (iv) infringement of the principle of proportionality and the principle that penalties must be specific to the offender, and disregard for previous administrative practice; (v) an error in the calculation of the fine owing to the lesser gravity of the applicants’ conduct by comparison with the other undertakings which participated in the cartel, breach of the principle of equal treatment and failure to have regard to previous administrative practice; and (vi) failure to observe the ceiling of the fine as laid down in Article 23(2) of Regulation No 1/2003. The applicants also request the Court, independently of those grounds of annulment, to exercise its unlimited jurisdiction by substantially reducing the fine imposed on them.

45      The various pleas in law and arguments raised by the applicants must be grouped into three categories. The first two pleas in law concern the nature of the infringement and the duration of the applicants’ participation in it. The third, fourth, fifth and sixth pleas in law concern the calculation of the fine imposed on the applicants. The applicants also request the Court, independently of those grounds of annulment, to exercise its unlimited jurisdiction by substantially reducing the fine imposed on them. It is appropriate, as a preliminary point, to examine the applicants’ request seeking leave to amend their pleadings following the adoption of the amending decision of 28 February 2013.

I –  The subject-matter of the action

46      It must be borne in mind that when, during the proceedings, one decision is replaced by another having the same subject-matter, this must be considered a new factor allowing the applicant to adapt its pleas in law and claims for relief. It would indeed be contrary to the due administration of justice and the requirements of procedural economy to oblige the applicant to make a fresh application (see Case T‑318/01 Othman v Council and Commission [2009] ECR II‑1627, paragraph 53 and the case-law cited). The same must apply where, during the proceedings, the institution that adopted the act which is the subject of the action makes amendments to that act aimed at replacing it partially without changing its subject-matter (judgment of 2 February 2012 in Case T‑76/08 EI du Pont de Nemours and Others v Commission, not published in the ECR, paragraph 34, and judgment of 2 February 2012 in Case T‑77/08 Dow Chemical v Commission, not published in the ECR, paragraph 35).

47      In the present case, the applicants’ request seeking leave to amend their claims, pleas in law and arguments in the light of the amendments to the contested decision made by the Commission through the adoption of the amending decision of 28 February 2013 must be granted. That decision has the effect of partially replacing the contested decision on a limited number of points, but without changing its subject-matter: the finding that a number of undertakings, including the applicants, infringed Article 81 EC and Article 53 of the EEA Agreement by participating in a set of agreements and concerted practices in the automotive glass sector in the EEA.

48      Accordingly, it must be considered that the present action seeks the annulment of the contested decision as amended by the amending decision of 28 February 2013, in so far as it concerns the applicants, and a substantial reduction of the fine imposed on them in that amending decision.

II –  The pleas in law relating to the nature of the infringement and the duration of the applicants’ participation in it

A –  The first plea in law, alleging an error in the legal characterisation of the facts and an error in the assessment of the gravity of the infringement

a)     Arguments of the parties

49      By their first plea, the applicants, while accepting that the contested decision shows that they, Saint-Gobain and AGC (Splintex) participated in trilateral meetings, sometimes called ‘club meetings’ (‘the club’), members of which had a number of contacts during which they were able to exchange commercially sensitive information, maintain that the Commission was wrong in the present case to characterise the conduct of the undertakings which participated in those contacts as a ‘fully-fledged’ cartel, operating on the basis of a pre-determined plan designed to ensure stability of the market shares of its participants and covering the entire market. That characterisation of the facts is not in any way supported by the available evidence. That evidence allowed the Commission only to identify ‘cartel-type’ contacts, which come at the lower end of the scale of gravity of infringements of Article 81(1) EC.

50      The applicants observe that, in accordance with the rule laid down in Article 2 of Regulation No 1/2003, the burden of proving the existence and the nature of an infringement of Article 81 EC is borne by the Commission. The standard of proof required is especially high in the case of anti-competitive agreements, which can be established only by clear and unambiguous evidence indicating the concurrence of wills between the parties to conduct themselves on the market in a specific way. That high standard of the requirement for evidence is justified by the nature and severity of the penalties which EU law applies in the event of infringements of Article 81 EC.

51      In that regard, the applicants claim, first of all, that the handwritten notes on which the Commission relies in the contested decision, taken essentially by Asahi employees, are for the most part cryptic, since they consist of nothing more than a set of shorthand jottings and figures. Their probative value is therefore limited, as those notes cannot corroborate the oral statements of the leniency applicant, as the Commission asserts.

52      In addition, the Commission was wrong to rely on the statements of the leniency applicant in order to interpret those notes.

53      Apart from the fact that they are lacking in clarity, those notes were not interpreted by their authors. In addition, they were interpreted several years after they were written. Those factors explain the way in which the leniency applicant constantly changed its mind in its statements as to the meaning of the notes, and its numerous suppositions and contradictions by reference to its previous statements. The applicants maintain that, by its leniency testimony, the leniency applicant in reality sought to place the most negative interpretation possible on the notes in question, particularly with respect to the existence of a predetermined plan or the pursuit of an overall objective of stability of market shares, in order to obtain total immunity rather than a simple reduction of the fine that would be imposed on it.

54      Moreover, it is settled case-law that the Commission cannot treat disputed admissions by one undertaking as proof of the existence of an infringement unless those admissions are corroborated by other precise and consistent evidence. The evidence on which the contested decision is based does not satisfy that condition.

55      The applicants maintain, next, that the Commission was not in a position to produce any direct evidence of the cartel plan or objective. The leniency statements are irrelevant in that regard, since they are not corroborated by any document cited in the decision. Thus, the existence of such a plan cannot be inferred solely from the discussions of the requests for quotation issued by car manufacturers, as such discussions may have taken place on an ad hoc basis and therefore formed part of a series of unstructured contacts. That is apparent more particularly from the documents to which the Commission refers at recital 461 of the contested decision, most of which relate to only a single car manufacturer and contain no reference to the market as a whole. That argument is borne out by the sporadic nature of the contacts that took place between the participants in the cartel, at least until the first half of 2000 and after the end of 2001. The applicants claim, on this point, that the fact that the Commission itself acknowledges that the cartel went through a ‘roll-out’ period is inconsistent with the view that contacts between members of the club took place on the basis of a predetermined plan designed to ensure the overall stability of their market shares. Nor does the contested decision contain any systematic analysis that would support the Commission’s characterisation of the contacts at issue. In addition, the case-law cited by the Commission in its defence is irrelevant in the present case, since it relates to proof of contacts which, by their nature, were less serious than the conduct in which the applicants are found to have engaged in the present case.

56      The evidence adduced by the Commission indicates, moreover, that the great majority of the contacts did not give rise to agreements aimed at market coordination or the implementation of such agreements or arrangements. Yet such agreements would have been indispensable to the realisation of an overall collusive plan intended to ensure the stability of the participants’ market shares, as described by the Commission. The fact that on some occasions several contracts were discussed at the same meeting does not permit the inference that there was any link between those contracts and that they therefore formed part of an overall plan. Furthermore, the mere fact that the same managers from the different undertakings involved may have met on different occasions is of no relevance for the purpose of concluding that those undertakings followed a predetermined plan in order to ensure the stability of their market shares.

57      The documents or passages from documents on which the Commission comments in its defence are either incapable of demonstrating the existence of an overall plan to ensure stability of market shares or do not relate to the applicants.

58      The applicants maintain, moreover, that the Commission is wrong to rely in the present case on the case-law in which it has been held that where the anti-competitive object of the contacts has been shown on the basis of documentary evidence, the undertakings concerned bear the burden of challenging the existence of the facts by producing other documentary evidence. In fact, the Commission has specifically failed to demonstrate such an anti-competitive object in the present case.

59      The evidence of monitoring of market positions cited in the contested decision also does not establish any overall plan or purpose such as described by the Commission. Thus, most of that evidence refers to independent monitoring of market shares, carried out internally and lawfully by carglass producers.

60      The two documents to which the Commission refers in its defence do not support its allegations of the existence of an overall market plan involving a monitoring and correction mechanism. Those documents date from the end of the infringement period and therefore have no probative value for the first three years of the infringement. Furthermore, the document labelled EF7, consisting of notes taken at a club meeting on 6 December 2001, shows at most the exchange of very general data on market shares and also a possible attempt to agree on a method for monitoring market shares, but does not show that such a method was actually adopted, entailing the conclusion of an unlawful agreement. The document labelled CC4, consisting of notes taken at a meeting of the club on 10 July 2002, indicates that the members of the club had not yet agreed on a method of monitoring market shares only a few months before the end of the discussions.

61      The applicants further claim that the alleged correcting measures identified by the Commission represent only divergent views between participants in the contacts as to the results expected by each of them of previous contracts and also claims that measures should be taken in order to address those failed expectations. The Commission has failed to demonstrate that the parties applied any form of joint monitoring or correcting measures.

62      Lastly, the applicants take issue with the Commission for having overstated the number of unlawful contacts in the present case. The sporadic nature of the contacts between the participants in the cartel contradicts the argument that those participants acted according to a pre-determined plan aimed at achieving a wide-scale objective. More generally, the applicants claim that, in finding that there was a pre-determined plan and a market-wide objective on the sole basis of the evidence in its possession, the Commission departed from the stricter standard of proof reflected in other decisions finding infringements of Article 81(1) EC.

63      Since the Commission has not proved the particular type of infringement which it penalised in this case, the applicants request the Court to annul Article 1 of the contested decision, in so far as it concerns them. The explanations supplied by the Commission in the course of the present judicial proceedings are not such as to restore the legality of that provision in so far as it relates to the applicants. The lesser gravity of the conduct of the undertaking composed of the applicants should in any event have the consequence that the fine imposed on them is reduced.

64      In response to those arguments, the Commission notes, first of all, that the applicants admit that they engaged in a number of inappropriate contacts and exchanged commercially sensitive information with competitors.

65      It then recalls that it did not characterise the agreements and concerted practices which it identified in the contested decision as a structured cartel. However, according to settled case-law, the mere fact of having received information concerning competitors, which an independent operator preserves as business secrets, is sufficient to demonstrate the existence of an anti-competitive intention. In addition, the mere fact that an undertaking has participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, is sufficient to demonstrate that the undertaking participated in the cartel. It is for the undertaking concerned, where its participation in such meetings has been established, to put forward evidence to prove that such participation was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. In accordance with the case-law, in order to establish the existence of an infringement of Article 81 EC it is not necessary for each item of evidence produced by the Commission to be capable of demonstrating every aspect of the infringement, as a body of evidence is sufficient in that regard.

66      The Commission comments on the main items of evidence on which it relied in order to conclude that there was a plan designed to ensure the stability of the market shares of the members of the club. It emphasises, in that regard, the significance of the minutes of the meeting of 6 December 2001, labelled EF7, during which the applicants, Saint-Gobain and AGC attempted to agree on a common methodology for the purposes of allocation and reallocation of carglass supply contracts, and likewise of the minutes of the follow-up meeting on 10 July 2002, labelled CC4. Those documents, when read with the oral statements of the leniency applicant and the other evidence put forward in the contested decision, form a convincing body of evidence that demonstrates the overall cartel plan. The wording of document EF7, in particular, reveals not only that a new methodology was conceived from the end of 2001, in the mechanism for the allocation of contracts, but also that a system of allocation already existed before that date.

67      In the Commission’s submission, the succinct nature of the other notes on which it also based the contested decision does not deprive them of their probative value. It states that the fact that most of those notes related to supply contracts to be concluded with one or two car manufacturers is not relevant for the purpose of contesting the finding of a global collusive plan. The notes are couched in broad terms and refer to the market globally. The various contacts at issue should also be considered globally, so that the common logic of which they form part can be seen.

68      The Commission further submits that, contrary to the applicants’ contention, it is highly unlikely that, in all instances where information about the undertaking which they form is mentioned, the source of that sometimes very precise information was not the applicants themselves.

69      Nor can the reliability of the leniency applicant’s statements be disputed in the present case, since, according to the case-law, such statements may help to establish the existence of an infringement provided that they corroborate other evidence. In the Commission’s submission, it is inevitable that the statements of a leniency applicant in cartel investigations are made several years after the infringement. Testimony given in the context of a leniency application implies a process in the course of which the leniency applicant will provide increasingly precise information about the facts underlying the infringement as it searches its memory about the events that took place at certain points throughout the period in question. Any imprecision or hesitation on the part of a leniency applicant does not necessarily call into question the probative value of its statements, since, in accordance with settled case-law, the fact of seeking to take advantage of the application of the 2002 Leniency Notice in order to secure a reduction of the fine does not necessarily provide an incentive to submit distorted evidence about the other participants in the cartel. That is all the more true in the present case, since the leniency applicant was aware that any attempt on its part to mislead the Commission would have jeopardised its prospects of benefiting from the 2002 Leniency Notice. In any event, the Commission states that it verified each of those statements in the light of the written evidence in the file.

70      It is unnecessary, moreover, that the leniency statements be corroborated by other precise and consistent evidence, as simple evidence is sufficient in that regard. Otherwise, such statements would serve no purpose whatsoever.

71      The Commission disputes, next, the applicants’ attempt to depict the collusive behaviour of the members of the club as a series of unstructured sporadic contacts. Apart from the matters mentioned above, it is also appropriate to take account of the number and frequency of the club meetings and also of the fact that for most of the time the same individuals participated in those meetings. The applicants’ participation in the infringement is corroborated by written evidence and also by the leniency applicant’s statements. Thus, the applicants participated in 37 meetings and contacts over the infringement period. The applicants are wrong to attempt to reduce the subject-matter of the discussions to just some car manufacturers, as the various documents in the file support the finding that the members of the club did indeed pursue a common objective of market share stability. It is natural that, in pursuing that objective, the members of the club should have had discussions on the allocation of market shares for certain manufacturers, as the allocation of contracts for supplies to those manufacturers would be likely to influence the respective overall market shares of those members.

72      In that context, it is for the applicants not merely to submit what they claim to be an alternative explanation for the facts found by the Commission but to challenge the existence of those facts established on the basis of the documents produced by the Commission. In the present case, however, the applicants have merely put forward other plausible explanations for the evidence on which the contested decision is based, even though that evidence necessarily demonstrates the anti-competitive behaviour penalised by the Commission.

73      The Commission adds that the discipline which the members of the club imposed on themselves gave rise to the implementation of a market share monitoring and correction mechanism. The applicants are wrong to claim that the documents on which the Commission relies indicate only that the various marketing departments of the members of the club provided their own forecasts and longer-term overviews of the evolution of market shares. In the Commission’s submission, those documents show, on the contrary, that a real information exchange system had been implemented in that regard. Furthermore, compensations were granted on a number of occasions to some members of the club, including the applicants, when supply contracts could not be allocated in accordance with the global plan. It is therefore not the case that, as the applicants claim, those compensations show only the existence of divergent views concerning the expectations of the members of the club as to the outcomes of previous contracts. In any event, if the view were to be taken — incorrectly, in the Commission’s submission — that the members of the club did not always agree on a compensation mechanism, that has no consequence for the existence of the infringement, consisting in an agreement or a concerted practice.

74      In the alternative, the Commission contends that, even if the applicants’ assertion that the club meetings were sporadic were to be accepted, the frequency of the collusive meetings has no relevance to the existence of a global plan of the cartel and, accordingly, on the characterisation of the infringement.

75      The Commission adds, lastly, that, in accordance with the case-law, Article 81 EC prohibits any direct or indirect contact between operators with the object of influencing the conduct of the participants on the market. The exchange of information such as prospective prices or sales volumes is covered by that prohibition, as such information is deemed to be taken into account by the participants in order to decide their conduct on the market. In the present case, the applicants were aware that the members of the club exchanged various forms of potentially commercially sensitive information. In those circumstances, the Commission is not required to define the precise form of the illegal conduct or to carry out a systematic or quantitative analysis in order to determine how many price requests were directly affected by the parties’ collusive practices, or even to establish that the applicants had an agreed method for measuring the effects of their measures for allocating supply contracts.

b)     Findings of the Court

76      According to the contested decision, the infringement of Article 81(1) EC that is at the heart of the present case consisted in a concerted allocation of contracts concerning the supply of carglass for all the major car manufacturers in the EEA, through the coordination of pricing policies and customer supply strategies. The objective of that cartel, which took place between March 1998 and March 2003, was, according to the contested decision, to maintain an overall stability of the various participants’ market shares. Meetings were held regularly between the participants, not only to discuss the allocation of future supply contracts, but also to monitor the implementation of decisions taken during previous meetings and contacts. Since, inter alia, they were motivated by that common financial objective, those various collusive contacts constituted, in the Commission’s view, a single and continuous infringement of Article 81(1) EC.

77      The Commission justified that conclusion more specifically in point 505 of the contested decision, as follows:

‘The anti-competitive activities carried out by Saint-Gobain, [the applicants], AGC and Soliver in relation to their supplies of carglass to car manufacturers … formed part of the same scheme consisting of distorting competition in the EEA with a view to maintaining artificially high prices and artificially stable market positions. The following factors are relevant in this respect:

–        The concerted actions decided in the context of the trilateral and/or bilateral meetings and contacts between the four carglass suppliers pursued one single and common objective, which was to allocate new and reallocate existing supply contracts for car models so as to distort the normal evolution of prices for carglass supplies and to regulate between themselves the market for the supply of carglass to car manufacturers. The carglass suppliers were able to regularly monitor their market positions and, by taking coordinated actions in the context of their responses to car manufacturers’ RFQs [(requests for price quotations)], to maintain a certain degree of overall stability of their respective market shares …

–        … the four carglass suppliers participated in the implementation of a set of measures designed to achieve the abovementioned objective. In particular, they agreed on specific mechanisms for allocating carglass pieces. This included the exchange of price information and other commercially sensitive information as well as coordination of their pricing policies and supply strategies, which allowed them to take concerted actions vis-à-vis the car manufacturers regarding their responses to RFQs issued by car manufacturers and to coordinate, to a large extent, the choice of the supplier, or, in the case of multiple sourcing, the suppliers for any given carglass supply contract. The competitors used concerted reference prices regularly higher than the target price requested by car manufacturers when coordinating cost elements contained in the RFQs such as privacy glass costs, tooling costs, development costs, prototype costs as well as costs linked to particular technical specifications, which were decisive for the car manufacturers’ sourcing decisions. As regards allocation of individual contracts, they held regular discussions designed to identify the potential winner of a particular supply contract, as well as those competitors who would not quote at all, or who would quote higher prices than the agreed winner. They agreed for instance to inform the car manufacturer that none of them had sufficient capacity to take on 100% of the order or that the “preselected” winner was to set a price in response to specific RFQs, with the other competitors agreeing to quote higher prices with a view to keeping their existing market positions, namely the “covering” mechanism …

–        … [T]he competitors closely monitored both market shares and actual supply and, when necessary, applied correcting measures in the form of compensation which made sure that the overall supply situation in the EEA was in accordance with the concerted allocation of glass parts. At the meetings, the competitors made sure that their individual shares of business of each customer remained more or less stable and would do so for the foreseeable future …’

78      By their first plea in law, the applicants’ claim, in essence, that the Commission failed to prove the existence of such a single and continuous infringement of Article 81 EC in the present case and, accordingly, they submit that they were wrongly penalised on that basis in the contested decision.

79      In that respect, it must first of all be recalled that, according to settled case-law, for the purposes of applying Article 81(1) EC, it is sufficient, in order for an agreement to fall within its scope, that the object of that agreement is to restrict, prevent or distort competition, irrespective of its actual effects. Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (see Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraphs 116 and 117 and the case-law cited).

80      The disclosure of information to one’s competitors in preparation for an anti-competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC, namely a form of coordination between undertakings by which, without it having been taken to the stage where an agreement properly so-called has been concluded, practical cooperation between them is knowingly substituted for the risks of competition (see, to that effect, Case T‑148/89 Tréfilunion v Commission [1995] ECR II‑1063, paragraph 82, and Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 178).

81      In addition, it must be pointed out that, according to settled case-law, the Commission must prove the infringements of Article 81(1) EC found by it and adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58, and Commission v Anic Partecipazioni, paragraph 79 above, paragraph 86). In doing this, the Commission must establish in particular all the facts enabling the conclusion to be drawn that an undertaking participated in such an infringement and that it was responsible for the various aspects of it (Commission v Anic Partecipazioni, paragraph 79 above, paragraph 86).

82      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 body of evidence relied on by that institution, viewed as a whole, meets that requirement (Case C‑407/08 P Knauf Gips v Commission [2010] ECR I‑6375, paragraph 47; Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 180). Furthermore, where the Commission has relied on documentary evidence in support of its finding of the existence of an anti-competitive agreement or practice, the burden is on the parties who are contesting that finding before the Court not only to put forward a plausible alternative to the Commission’s view but also to allege that the evidence relied on in the contested decision to establish the existence of the infringement is insufficient (JFE Engineering and Others v Commission, paragraph 187, and Case T‑240/07 Heineken Nederland and Heineken v Commission [2011] ECR II‑3355, paragraph 52).

83      In addition, it is normal, in the context of anti-competitive practices and agreements, for the activities to take place clandestinely, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between operators, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57, and Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 51).

84      Where an undertaking participates, even if not actively, in meetings between undertakings with an anti-competitive object and does not publicly distance itself from what occurred at them, thus giving the impression to the other participants that it subscribes to the results of the meetings and will act in conformity with them, it may be concluded that it is participating in the cartel in question (see JFE Engineering and Others v Commission, paragraph 82 above, paragraph 327 and the case-law cited).

85      In the present case, it must be emphasised, as a preliminary point, that the applicants admit, in the context of the present action, having had a certain number of contacts with competing undertakings, at the very least during part of the period in which the Commission found that the applicants had participated in the infringement at issue. They also acknowledge that several pieces of information of a potentially commercially sensitive nature were exchanged during those contacts.

86      In order to support its finding of a single and continuous infringement consisting in agreements or concerted practices within the meaning of Article 81(1) EC, the Commission relies, first, on a series of handwritten notes taken by employees of the addressees of the contested decision and, secondly, on oral statements made by the leniency applicant.

87      As regards the latter point, it must be pointed out at the outset that, contrary to what is suggested by the applicants, the mere fact that information was provided by an undertaking which applied for leniency pursuant to the 1996 Leniency Notice does not call its probative value into question. It is settled case-law that no provision or any general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings concerned. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty (see, to that effect, JFE Engineering and Others v Commission, paragraph 82 above, paragraph 192).

88      In the first place, the Commission produces the written minutes of two club meetings that were held on 6 December 2001 and 10 July 2002 respectively, from which it can be seen, according to the Commission, that those members developed an overall plan designed to ensure the overall stability of their market shares (see paragraphs 76 and 77 above). The applicants have not denied participating in those meetings.

89      The first minutes, which bear the reference EF7, were drafted by an employee of the leniency applicant and date from 6 December 2001. That documents contains, inter alia, the following, on its second page:

‘Market share and development — Next 3 years

Actions

–        define what the market is up to 2004;

–        describe clearly what is the reference;

–        what are we talking about, which base (square metres; volume; car set);

–        it has no sense anymore to speak countries, real issue is customer;

–        to agree upon, to discuss, to decide a rule on new model up to 2004;

–        do we have to consider share on remaining left part of the cake after new entry.’

90      The document also contains two tables on its second and third pages indicating the provisional market shares of the applicants, of Saint-Gobain and of AGC (Splintex) in 2001 and in 2004. It can also be seen from that document that those tables reflect market shares calculated by reference to the number of glass pieces and ‘not anymore’ by reference to square metres.

91      As the Commission rightly maintains, it can be inferred from the wording of that document that the members of the club were already exchanging information on their respective market shares before the meeting of 6 December 2001 and that they at the very least sought at that meeting to establish a new common system for calculating their market shares in order to compare them, which would no longer be based on an evaluation of market shares by country. The presence, in those minutes, of a provisional table of market shares for 2004 also shows that the members of the club, during the meeting of 6 December 2001, at the very least sought to assess the future development of their respective market shares on the basis of a common method of calculation. That interpretation is supported both by the notes taken by another employee of the leniency applicant who attended the same meeting and which were voluntarily submitted to the Commission and by the leniency applicant’s statements in relation to those notes.

92      Those pieces of evidence are sufficient, moreover, to rule out the alternative interpretation of the document bearing the reference EF7, proposed by the applicants at the hearing, according to which the reference in that document to discussions by country before the date of the meeting in question might only reflect a hypothesis that never actually took place.

93      The second minutes, which bear the reference CC4 and date from 10 July 2002, contain, inter alia, on the third page, a table with two columns indicating the market shares of the applicants, of Saint-Gobain and of AGC (Splintex), calculated by reference to monetary value, volume, carsets and square metres. Those two columns compare the turnover of the three undertakings in question in 1999 with their provisional turnover in 2003, individually and cumulatively. That confirms the Commission’s finding that the members of the club at the very least sought, at that meeting, to compare their market shares on the basis of various methods of calculation, including for a year subsequent to the year in which the meeting was held.

94      In the second place, the Commission produces a series of handwritten notes drafted by Mr T., an employee of AGC (Splintex).

95      Thus, first of all, the Commission relies on the minutes of a conversation between that employee and Mr D.P., an employee of Saint-Gobain, which took place on 28 May 1998. Those minutes indicate, inter alia, that the ‘principle is confirmed for [19]99 and 2000: starting from the prices December [19]98 — [minus] 2% end [19]99 and [minus] 2% end 2000’ and ‘keeping on the current models’. As can be seen from the oral statements of the leniency applicant, the purpose of that contact was to coordinate prices with a view to passing on the productivity gains in 1999 and in 2000 by granting discounts.

96      The Commission next produces a table drafted by Mr T. on 17 June 1998, illustrating the estimated shares of Saint-Gobain, of Splintex (AGC) and of the undertaking composed of the applicants on the market for replacement glass for four models of [confidential], on the basis of information concerning the prices applied by those competitors. As the Commission rightly points out, the leniency applicant declared that that table had been completed on the basis of information received from the competing undertakings in the course of various meetings and telephone calls.

97      In addition, it can be seen from Mr T.’s notes of 30 September 1999, taken in relation to a contact between him and Mr D.P., in the course of which the supply of carglass to [confidential] was discussed, and from the explanation given in that regard by the leniency applicant, that, following a request from that manufacturer, AGC (Splintex) and Saint-Gobain had decided to coordinate their attitude towards that manufacturer as regards the supply of the rear window of the model in question, refusing to increase production under the pretext of saturation of their respective productive capacities. As can be seen from explanations of the leniency applicant and from the very wording of the notes in question, the purpose of that coordination was to distort competition by ensuring that [confidential] would continue to purchase supplies from both Saint-Gobain and the leniency applicant. That coordination was therefore intended to maintain the market shares of those two competitors as regards the supply of rear windows to [confidential].

98      The applicants claim that they did not participate in that contact. However, it must be noted that a passage in those notes, relating to the laminated windscreen for the [confidential], refer to the applicants, in the form of a suggestion that a contact with the applicants was necessary in that regard. The leniency applicant’s statements confirm that the reference to the applicants reflects the agreement between the leniency applicant and Saint-Gobain on the need to contact the applicants in relation to the model in question, in order to check that the applicants would ‘cover’ the leniency applicant as regards the contract for the supply of laminated windscreens for that model by quoting a higher price. It can also be seen from the notes taken by Mr T. in relation to a conversation with Mr D.P. on 2 November 1999, and from the statements of the leniency applicant that — in accordance with the intention expressed in the course of the contact of 30 September 1999 — the leniency applicant contacted the applicants in relation to the laminated windscreen for the [confidential] and that the applicants confirmed at that time that they would ‘cover’ the leniency applicant for that contract. That interpretation is confirmed by the applicants’ response to the statement of objections, in which they acknowledged that the abovementioned notes of 2 November 1999 showed, at the very least, that they had expressed their lack of interest in obtaining the contract for the supply of carglass at the price proposed by the leniency applicant.

99      In addition, it can be seen from the notes taken by Mr T. on 20 September 1999, read in the light of the leniency applicant’s statements, that, contrary to what is claimed by the applicants, a meeting was held in Paris on that date, attended by employees of the applicants, of Saint-Gobain and of AGC (Splintex), in which commercially sensitive information were exchanged between those competitors concerning various models of the manufacturer [confidential]. Those notes and the leniency applicant’s statements also establish that the applicants sought, at that meeting, an overall increase of their market share as regards that manufacturer, Mr T. referring, in that respect, to a ‘38%/38%/24% split by 2001/2002’. Although that extract, read in the light of the leniency applicant’s statements, does not allow the conclusion that that split gave rise to an agreement, it does however confirm the anti-competitive nature of that contact, in which the applicants participated.

100    The monitoring of the market shares of various members of the club, during meetings in which commercially sensitive information was exchanged, is also attested to by the notes taken by Mr B., an employee of the leniency applicant, at a meeting held on 20 June 2001. Those notes — which, according to the leniency applicant, provide an illustration of the type of information exchanged between the competitors — contain not only various pieces of commercially sensitive information, as regards inter alia the possibility of obtaining price increases from [confidential] or the loss of 140 000 glass pieces intended for [confidential], but also an overview of market share development in 2004 in respect of [confidential], which was provided by the applicants.

101    In that respect, the Court cannot accept the applicants’ argument that the documents in the file show, at most, the existence of independent monitoring of market shares carried out by each of the competitors, and that such monitoring did not involve the communication by the applicants of commercially sensitive information or their receiving such information from their competitors. Even if Saint-Gobain and the leniency applicant had obtained certain business information concerning the applicants from third parties, it must be noted that the applicants themselves acknowledge having exchanged commercially sensitive information with some of their competitors. Moreover, and in any event, the Commission was entitled to consider, on the basis of both the specific information concerning the applicants contained in some of the notes in the file and the leniency applicant’s statements, that the applicants had communicated commercially sensitive information to the other members of the club in the course of bilateral or trilateral contacts, in breach of the prohibition laid down in Article 81(1) EC.

102    It can be seen from the notes taken by Mr B. concerning the manufacturer [confidential], and from the explanations given in that regard by the leniency applicant, that, as the Commission rightly submits, the applicants, which held a smaller market share than that of Saint-Gobain and AGC (Splintex) in respect of that manufacturer, nevertheless wished to remain a major player in 2001-2002 and therefore could not accept a reduction of their market share. It can also be seen from those notes and statements that the applicants exchanged information with the leniency applicant on the prices charged for the supply of carglass to [confidential] in 2001, and on potential price increases or discounts to that manufacturer in 2001 and 2002.

103    The handwritten notes taken by Mr B. on 29 October 2001, concerning the manufacturer [confidential], indicate, inter alia, that ‘Pilkington has moved price reduction from [confidential] [to] [confidential]’ and that ‘Pilkington will ask a price increase to avoid change of market share from [Saint-Gobain, Pilkington and AGC (Splintex)]’. The leniency applicant’s statements confirm the Commission’s interpretation of those notes, namely that they were taken at a meeting held in Rome (Italy) on that date and during which the applicants took part in anticompetitive discussions concerning various models of the manufacturer [confidential]. The leniency applicant explained, in that respect, that the members of the club coordinated in order to allow Saint-Gobain, inter alia, to increase the prices for the supply of rear windows for the new [confidential], without that increase bringing about a change in their respective market shares. With a view to achieving that objective, the applicants and AGC (Splintex) agreed to increase their prices for that glass piece, so that Saint-Gobain could obtain the price increase it desired. The applicants have not denied that they participated in that meeting.

104    Thus, the notes and statements examined in paragraphs 102 and 103 above also contribute to proving that the undertaking composed of the applicants participated, at the very least, in discussions with competitors involving the exchange of commercially sensitive information concerning major car manufacturers within the EEA, and an examination of the development of market shares of the main competitors. They also show the joint intention of the applicants, Saint-Gobain and the leniency applicant to coordinate with each other in order to stabilise their market shares.

105    On that latter point, reference should also be made to the notes of Mr G., an employee of the leniency applicant, taken at the meeting held on 3 September 2002 in Rome, in the offices of a glass industry trade association. It can be seen from that document that, aside from the discussions relating to the allocation of the contract for the supply of carglass for the new [confidential], the applicants, Saint-Gobain and AGC (Splintex) agreed to examine the ‘[market] share evolution […] [n]ext time’. It is true that, as the applicants submit, they were not held liable for the period after that date, with the result that it must be regarded as established that they did not participate in any subsequent discussion concerning the development of market shares referred to in those notes. That reference nevertheless constitutes additional evidence on which the Commission was entitled to rely in concluding that the cartel at issue involved monitoring, by the three abovementioned carglass producers, of the development of market shares.

106    Moreover, the Court must reject the applicants’ argument that — since the documentary evidence relied on by the Commission concerns only certain manufacturers — there could not have been a collusive plan covering the market as a whole.

107    In the first place, the general wording of the minutes examined in paragraphs 88 to 93 above suggest that the members of the club sought, in their meetings of 6 December 2001 and 10 July 2002, to refine their reference system in order to calculate their respective overall market shares, and it does not appear that that discussion was limited to certain car manufacturers within the EEA market.

108    In the second place, it can be seen from both the contested decision and the explanations given by the parties in the present proceedings that the car manufacturers in question negotiate contracts for the supply of carglass in the EEA. Thus, the achievement of the overall objective of stabilising the market shares of the members of the club necessarily presupposed that discussions took place concerning the allocation of specific supply contracts with certain car manufacturers, having regard to the existing distribution of supplies. Thus, for example, the handwritten notes taken by Mr B. at a meeting held before the meeting of 23 June 2000, concerning, inter alia, the supply contract relating to the [confidential], read in the light of the leniency applicant’s statements, illustrate the fact that the overall objective of stability of market shares pursued by the cartel presupposed that discussions took place concerning certain car manufacturers, taking into account the existing distribution of market shares for particular models and the renewal of those market shares. The Commission has sufficiently demonstrated that such discussions gradually touched upon, if not all of the supply contracts, at the very least the main car manufacturers within the EEA, namely, inter alia, [confidential].

109    Lastly, in the third place, at certain meetings, several manufacturers were discussed, even though they did not form part of the same group and therefore related to different central purchasing departments. Thus, for example, the handwritten notes taken by Mr T. on 20 September and 26 October 1999, like the notes taken by Mr B. at the meeting of 20 June 2001, each contain references to models of the [confidential] group and to models of the [confidential] group, at a time when, as can be seen from the wording of the minutes of the meeting of 6 December 2001, discussions were still being organised by country; in that case, concerning the French market. Likewise, the notes taken by Mr B. at the contact of 23 June 2000 contain references not only to [confidential], but also to [confidential].

110    As regards, next, the compensation mechanism, whose existence is disputed by the applicants, it is necessary, first of all, to refer to the notes taken by Mr B., an employee of the leniency applicant, in the summer of 2000, and from which it can be seen that the leniency applicant asked to ‘recover volumes’ concerning the previous model of [confidential]. It can be seen from the explanation of those notes provided by the leniency applicant that, originally, the leniency applicant had obtained 50% of the supply of rear windows for the new model of [confidential]. Nevertheless, as a result of problems linked to the quality of the leniency applicant’s products, Saint-Gobain finally supplied to [confidential] 100% of the rear windows for that model. That, as can be seen from the leniency applicant’s explanations, led the leniency applicant to seek subsequent compensation through an increase of its sales volumes.

111    Next, it can be seen from the notes taken by Mr B. on 23 June 2000 that, in the event that the supply of new windscreens for the [confidential] was not shared between Saint-Gobain and the applicants, ‘then [AGC (Splintex)] should give up something to [Saint-Gobain]’.

112    The Commission also produces the notes taken by Mr B. at the meeting held in Paris on 28 July 2000, in which employees of Saint-Gobain, of AGC (Splintex) and of the applicants discussed supplies to the manufacturers [confidential] and [confidential]. In particular, it can be seen from those notes that Saint-Gobain and the applicants, in the course of that meeting, expressed their worry about the fact that AGC (Splintex) had obtained, in 2000, 100 000 windscreens for the models [confidential] and that they might therefore ‘need compensation’.

113    Lastly, the notes taken by Mr B. shortly before September 2001 concerning the manufacturer [confidential] also contain references to compensation involving the members of the club.

114    Thus, the notes examined in paragraphs 110 to 113 above, read in the light of the explanations provided by the leniency applicant, constitute a body of evidence demonstrating, at the very least, the existence of discussions among the members of the club concerning the grant of compensation where one of them had not obtained a level of carglass supply corresponding to the initially envisaged distribution.

115    Since that compensation mechanism was capable of correcting fluctuations that might arise in the award of supply contracts by the car manufacturers and the implementation of such contracts, the Commission did not err in considering that the existence of that mechanism tended to support the finding of an overall plan intended to ensure the stability of market shares among the participating undertakings.

116    It must be emphasised, in addition, that several of the notes mentioned in paragraph 110 above, as well as the handwritten notes taken by Mr B. at the meeting held on 27 October 2000 and on 5 February 2002, supported in that respect by the leniency applicant’s statements, demonstrate that the applicants took part in the compensation mechanism in question.

117    The applicants also argue that the Commission has not demonstrated that they systematically behaved on the market in a manner consistent with the agreements or concerted practices that were the subject matter of the meetings and contacts mentioned in the contested decision, and even that they participated in those meetings and contacts only sporadically.

118    The Court considers however that, even were those circumstances proven, it would be irrelevant to the examination of the merits of the first plea in law.

119    It must be recalled that, in accordance with the case-law cited in paragraph 79 above, in the case of agreements reached at meetings of competing undertakings, Article 81(1) EC is infringed where those meetings have as their object to restrict, prevent or distort competition and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (see, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 509 and 510; and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 145).

120    The assessment of the cartel’s effects on competition is also superfluous, since it is clear from the very wording of Article 81(1) EC that agreements between undertakings, decisions by associations of undertakings and concerted practices are prohibited, regardless of their effect, where those agreements, decisions or practices have an anti-competitive object (Commission v Anic Partecipazioni, paragraph 79 above, paragraph 123; Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraph 164; and Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektronisch Gebied v Commission [2006] ECR I‑8725, paragraphs 136 and 137). That applies in particular in the case, as in this instance, of obvious restrictions of competition such as price-fixing and market-sharing.

121    Furthermore, the applicants’ allegation that the meetings between the members of the club were sporadic is contradicted by an examination of the file.

122    As the Commission rightly emphasises, the frequency of meetings and contacts between the competitors, held with a view to concerting their market conduct, must be assessed in the light of both the subject-matter of that concerted action and the particular conditions of the market concerned (see, to that effect, Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 60).

123    In the present case, it is necessary to take into account the fact that, although numerous collusive contacts were necessary in order to coordinate the conduct of the members of the club as regards the allocation of particular supply contracts, in order to ensure the stability of their market shares, contracts for the supply of carglass usually have a period of validity of several years, corresponding to the marketing period of the models of car concerned. Moreover, as the Commission rightly pointed out, in order to pursue effectively the objective of stabilising the market shares of the participants in the cartel, it was not necessary to collude on each supply contract, and, in certain cases, several supply contracts were discussed at the same meeting or contact. In that context, the fact that meetings or contacts between the members of the club could take place weeks, or even months, apart is not capable of calling into question the Commission’s finding that the cartel at issue included an overall plan to ensure the stability of the market shares of those members.

124    Lastly, the applicants’ argument that the existence of a global plan to ensure the overall stability of market shares is in itself incompatible with the Commission’s identification of a ‘roll-out’ period cannot succeed.

125    In that respect, it must first of all be noted that links of complementarity between agreements or concerted practices constitute objective evidence of the existence of a global plan, and that such links exist where those agreements or practices are intended to deal with one or more consequences of the normal pattern of competition and contribute, through their interaction, to the attainment of a single anti-competitive objective (Case T‑446/05 Amann & Söhne and Cousin Filterie v Commission [2010] ECR II‑1255, paragraph 92). In the light of the reasoning set out in paragraphs 88 to 123 above, it must be considered that there were close links of complementarity between the collusive contacts that took place among the members of the club during the infringement period and that those contacts contributed, by their interaction, to the stabilisation of the market shares of those members in the EEA.

126    Furthermore, it is apparent from the case-law that the treatment as a single and continuous infringement of Article 81(1) EC, of a set of collusive acts, characterised by the fact that it pursues a single objective, is not contradicted by the fact that that infringement manifested itself progressively (see, to that effect, Commission v Anic Partecipazioni, paragraph 79 above, paragraph 82, Joined Cases T‑204/08 and T‑212/08 Team Relocations and Others v Commission [2011] ECR II‑3569, paragraph 33, and Case T‑211/08 Putters International v Commission [2011] ECR II‑3729, paragraph 31).

127    Accordingly, without prejudice to the analysis of the second plea in law, it must be acknowledged that a complex infringement which, as in the present case, is based not only on a system of exchange of sensitive information on prices and mutual monitoring of market shares, but also on collusion intended to share between competitors the supply contracts with the majority of customers within the EEA as well as on a compensation mechanism, is likely to involve a large number of meetings and contacts, distributed over several months or years, in which the means of implementing the overall collusive plan are discussed and refined, with the plan therefore materialising progressively (see, by analogy, Case T‑21/99 Dansk Rørindustri v Commission [2002] ECR II‑1681, paragraphs 67 and 68).

128    Having regard to the above elements, it must therefore be held that the Commission did not err in characterising the infringement of Article 81(1) EC that is at the heart of the present dispute as a single and continuous infringement consisting in concerted allocation of contracts concerning the supply of carglass for the major car manufacturers in the EEA, through coordination of pricing policies and supply strategies aimed at maintaining an overall stability of the parties’ position on the market concerned.

129    The Court also finds, without prejudice to the examination of the second plea in law, whereby the applicants contest, in the alternative, the duration of their participation in that single and continuous infringement, that the Commission did not err in concluding that the applicants had participated in that single and continuous infringement.

130    It follows that the first plea in law must be rejected as unfounded.

B –  The second plea in law, alleging an incorrect assessment of the duration of the applicants’ participation in the cartel

a)     Arguments of the parties

131    In their second plea, the applicants claim that the Commission was wrong to take the view in the contested decision that their participation in the infringement began on 10 March 1998. In their submission, their participation cannot be established before 15 January 1999 or, in any event, before 3 November 1998.

132    They maintain, first of all, in that regard, that the meetings in which they participated with Saint-Gobain in a hotel near Charles de Gaulle airport, in Paris, on 10 March 1998 and 9 October 1998, referred to in the contested decision, concerned discussions separate from all the other meetings and contacts on which the Commission based its finding of a single and continuous infringement. In the applicants’ submission, those meetings related to the legitimate aim of improving competitiveness and flexibility in supplies in the sector of tinted glass and privacy glass. The reference to certain end prices at the meeting of 10 March 1998 does not mean that any agreements were concluded on that occasion; such references must be understood as being incidental to those legitimate discussions.

133    According to the applicants, even assuming that those meetings disclose an infringement of Article 81 EC, that infringement would be distinct from the single and continuous infringement penalised in the contested decision. Any finding of a single and continuous infringement should be based on objective elements such as the type of products concerned, the identity of the participating undertakings and of the individuals involved, the geographic scope and the type of behaviour involved, and any other relevant circumstances capable of establishing a sufficiently close link between the different actions. The Commission has not demonstrated that the discussions about privacy glass were in any way linked to the club discussions that took place subsequently. On the contrary, it acknowledged that the discussions concerning tinted glass and privacy glass pursued a different objective, namely improving the flexibility of the offer in that sector. That conclusion is corroborated, in particular, by the fact that most of the employees who participated in those two meetings did not participate in any subsequent club meetings.

134    The applicants maintain, next, that the Commission was wrong to include among the unlawful club meetings the meeting held at Königswinter in the spring of 1998, owing both to the place where that meeting took place and the persons who participated in it, and also to the special focus of the meeting on supplies of glass to [confidential]. The applicants contend that that meeting, like the meeting held in Brussels (Belgium) in early 1999, related specifically to that manufacturer and involved employees who were essentially responsible for that account within their respective undertakings. The fact that the names of those persons do not appear any more, or scarcely appear any more, in connection with the other meetings referred to in the contested decision constitutes an objective indication of the specific and distinct nature of the Königswinter meeting by comparison to the club discussions. According to the applicant, that was implicitly acknowledged by the Commission when it stated that there was no established plan relating to the club discussions at the time when that meeting took place.

135    The applicants further contend that the handwritten notes taken by Mr T., an employee of AGC (Splintex), dated 18 May 1998 and relating to a contact between Saint-Gobain and AGC only, do not show that the applicants participated in exchanges of information between competitors before that date. Contrary to the Commission’s assertion, those notes do not even mention the undertaking which the applicants form in the carglass sector. Nor can the notes taken by Mr T. and dated 28 May 1998, relating to a contact between AGC (Splintex) and Saint-Gobain, demonstrate that the applicants were involved in exchanges of sensitive information at that time. The same applies to the other documents relied on by the Commission in the contested decision.

136    As for the document drawn up by Mr T. and dated 3 November 1998, it does not establish either that pricing information was exchanged concerning the applicants at that time or, a fortiori, that the applicants supplied information of that type. The applicants maintain in that regard that the Commission cannot rely on the testimony of the leniency applicant aimed at interpreting the document in that sense, as that testimony is not corroborated by the document. In the alternative, the applicants claim that the Commission is in any event unable to show that any exchanges of information took place between them and AGC (Splintex) before 3 November 1998.

137    Lastly, in the applicants’ submission, the Commission cannot infer any participation on their part in the cartel in 1998 from the leniency applicant’s assertion that ‘the competitors assessed each [other’s] shares of the [confidential] account in 1998’, as that assertion means only that the leniency applicant itself, acting independently, made an assessment of its own market shares and of those of its competitors.

138    Accordingly, the applicants request the Court to annul the contested decision in so far as it includes, in the duration of their participation in the infringement, the period from 10 March 1998 to 15 January 1999, on which date, according to the contested decision, a meeting took place in Brussels between the three members of the club in which those members exchanged information relating to prices and production volume as regards dark-tinted windscreens for various models of the manufacturer [confidential]. In the alternative, they claim that the Commission was unable to demonstrate that they participated in the infringement before 3 November 1998. The applicants therefore take issue with the Commission for having multiplied the basic amount of the fine by 4.5 in their case, a multiplier corresponding to the number of years of their alleged participation in the infringement. They maintain that a multiplier of 4 at most ought to have been applied in the present case.

139    The Commission does not accept those criticisms.

140    It contends that the participation of the undertaking formed by the applicants in the single and continuous infringement forming the subject-matter of the contested decision is established for the period from 10 March 1998 to 15 January 1999.

141    It observes in that regard that, according to settled case-law, the existence of a single and continuous infringement of Article 81 EC cannot be challenged on the ground that one or more elements of the series of acts of which it consists could also constitute, taken in isolation, an infringement of that provision. As the Court of Justice confirmed in Aalborg Portland and Others v Commission, paragraph 83 above, paragraph 258, it is necessary to take into account the fact that different actions form part of an overall plan, because their identical object distorts competition within the common market. It is unimportant, in that regard, that evidence of the continuation of the infringement could not be adduced for certain specific periods, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement.

142    The Commission also emphasises that an undertaking may be held responsible for a single and continuous infringement of Article 81 EC for the entire period of its participation in that infringement, even though it participated directly only in one or some of the constituent elements of that cartel, provided that it knew, or must have known, that the collusion in which it participated was part of an overall plan and that the overall plan included all the constituent elements of the cartel.

143    In the present case, the contacts between the applicants and Saint-Gobain concerning tinted glass and privacy glass between May 1997 and January 1999 did not pursue generally a legitimate purpose. Thus, the Commission emphasises that the applicants have not denied that one of their employees, Mr C., was present at the meeting of 10 March 1998. That employee participated in at least seven other meetings not concerned exclusively with tinted glass. Moreover, the applicants acknowledged, in their response to the statement of objections, that the undertakings that participated in the meeting of 10 March 1998 exchanged general pricing information regarding target prices for sunroofs and discussed end prices to be submitted to customers for [confidential] and [confidential].

144    It is illogical to claim, as the applicants do, that end prices for carglass pieces were mentioned in a purely incidental manner at the meeting of 10 March 1998, and that that meeting therefore had an exclusively technical purpose. In the Commission’s submission, it is clear from the file, on the contrary, that price coordination of a carglass piece for passenger vehicles and also light commercial vehicles did indeed take place at that meeting. The similarity of the subsequent collusive contacts, including at the meetings of 18 and 28 May 1998, proves that all of those actions should be penalised as a single and continuous infringement. The same conclusions should be drawn in the case of the meeting of 9 October 1998, since the commercial interests of the applicants and Saint-Gobain were discussed at that meeting and since those undertakings expressed their intention to examine the mutual benefits that cooperation might present.

145    Next, the Commission disputes the applicants’ argument that the Königswinter meeting cannot be treated as a meeting of the club, since, first, it related to a particular account ([confidential]) and, secondly, their representative at the meeting did not participate in any club meeting at a subsequent stage. The Commission maintains that it is not required, in order to find that there has been a single and continuous infringement, to show that the same representatives of the undertakings concerned attended all the cartel meetings. On the contrary, the Commission maintains that the anti-competitive contacts established in the decision may have involved several of the applicants’ employees, responsible for different customers. Nor is it necessary, in order to conclude that there has been a single and continuous infringement, that all anti-competitive discussions had the same content. In that regard, the Commission emphasises that it is logical that, during the roll-out stage of the cartel, the meetings focused on only some car manufacturers.

146    The Commission contends, in addition, that a number of handwritten notes relating to discussions between the leniency applicant and Saint-Gobain that were seized in the course of the investigation prove that the applicants were involved in the single and continuous infringement between May and November 1998. Although no representative of the applicants is named in those notes, the position of the undertaking formed by the applicants on the carglass market is cited several times and was thus necessarily taken into account when the measures to be adopted subsequently were decided. Accordingly, even if the notes refer to an internal conversation between two employees of AGC (Splintex), it is apparent from those notes that that undertaking had collusive contacts with Saint-Gobain and the applicants. The applicants’ involvement in the discussions held in 1998 is confirmed by the leniency applicant’s statements.

147    The note prepared on 17 June 1998 by Mr T. and the notes prepared by Mr B., another employee of the leniency applicant, containing estimations of the market shares of the three large carglass suppliers in 1998, prove that the applicants were already involved in the exchange of sensitive information between competitors at that time. It is irrelevant, in that regard, that Mr T.’s note refers to a price range of ‘140/142’ with respect to the applicants, as such lack of precision may be explained by the fact that the applicants had not yet supplied their competitors with more detailed information on that point. As for the notes taken by Mr B., the leniency applicant’s statements confirm that the evaluations of market shares in those notes were the result of an exchange of information in which the applicants participated.

148    Lastly, in the Commission’s submission, the applicants have not denied that a meeting did indeed take place between the members of the club on 29 September 1998 and that, according to the agenda for that meeting, price information was to be exchanged between the applicants, Saint-Gobain and the leniency applicant concerning the new [confidential] model. That is further proof of the anti-competitive intentions that motivated those undertakings since 1998.

149    The Commission therefore concludes that it was correct to apply a multiplier of 4.5 when calculating the fine imposed on the applicants, as that multiplier corresponds to the duration of their participation in the infringement.

b)     Findings of the Court

150    According to settled case-law, a pattern of conduct by several undertakings may be the expression of a single and complex infringement, corresponding partly to an agreement and partly to a concerted practice, provided that the conduct has the same anti-competitive object (see Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 188 and the case-law cited). When the various acts of the undertakings involved form part of an overall plan because they have the same object of distorting competition within the common market, the Commission is entitled to attribute liability for those actions on the basis of participation in the infringement considered as a whole (see Aalborg Portland and Others v Commission, paragraph 83 above, paragraph 258 and the case-law cited), even if it is established that the undertaking concerned directly participated in only one or some of the constituent elements of the infringement (see Joined Cases T‑101/05 and T‑111/05 BASF and UCB v Commission [2007] ECR II‑4949, paragraph 161 and the case-law cited).

151    In addition, it follows from the principles referred to in paragraph 83 above that — given the clandestine nature of the activities involved in anti-competitive agreements or practices — coincidences and indicia may reveal not just the existence of such practices or agreements, but also the duration of continuous anti-competitive conduct and the period of application of an agreement concluded in breach of the competition rules, the duration of the infringement being an intrinsic element of an infringement under Article 81(1) EC (Nederlandse Federatieve Vereniging voor de Groothandel op Elektronisch Gebied v Commission, paragraph 120 above, paragraphs 94 to 96, and judgment of 6 December 2012 in Case C‑441/11 P Commission v Verhuizingen Coppens, ECR I‑0000, paragraph 71).

152    In the present case, it is necessary, as a preliminary, to note the Court’s findings in paragraphs 128 and 129 above, according to which the Commission did not err in characterising the infringement of Article 81(1) EC that is at the heart of the present dispute as a single and continuous infringement consisting in concerted allocation of contracts concerning the supply of carglass for the major car manufacturers in the EEA, through coordination of pricing policies and supply strategies aimed at maintaining an overall stability of the parties’ market shares in the EEA, on the one hand, nor in concluding that the applicants participated in that infringement, on the other hand.

153    By the present plea in law, the applicants claim, nevertheless, that the Commission erred in finding that they participated in that single and continuous infringement between 10 March 1998 and 15 January 1999.

154    In that respect, first of all, it must be noted that, according to the contested decision, in the second half of the 1990s Saint-Gobain and the applicants sought to harmonise the colour and degree of light transmission of their respective brands of tinted glass, namely the brands [confidential] and [confidential], with a view to facilitating customer supply and rendering their respective products more interchangeable. The applicants claim that those discussions, at the very least until January 1999, exclusively pursued a legitimate purpose, namely improving competitiveness and flexibility in the supply of privacy glass to car manufacturers.

155    According to the Commission, however, from 10 March 1998 at the latest, those discussions were also aimed at coordinating the replies to be given to car manufacturers who wished to play the various carglass suppliers against each other in order to avoid being dependent on a single source of supply. In that context, Saint-Gobain and the applicants had several contacts in which they harmonised their respective ranges of privacy glass in relation to certain essential parameters such as light transmission, colour and thickness, in order to be able to interchange each other’s supplies. Sensitive commercial information was exchanged during those meetings, including inter alia general pricing information and information relating to the production costs of tinted float glass, with a view to coordinating the replies to be given to calls for tenders launched by certain car manufacturers.

156    Thus, according to the Commission, the object of those meetings went beyond the legitimate purpose of improving the efficiency of supplying car manufacturers. In particular, according to recital 125 of the contested decision, at a bilateral meeting held on 10 March 1998 between the applicants and Saint-Gobain in a hotel near the Paris Charles de Gaulle Airport, the participants discussed dark-tinted glass for sunroofs. General pricing information regarding target prices for sunroofs was exchanged at that meeting. Moreover, it can be seen from the notes taken at that meeting that those two competitors agreed to maintain a certain level of prices for their products [confidential] and [confidential].

157    The applicants do not deny that two of their employees, Mr R. and Mr C., attended that meeting of 10 March 1998, along with representatives of Saint-Gobain. Since it is also undisputed that Mr C. had a commercial role within the undertaking that includes the applicants, it is irrelevant, for the purpose of examining the merits of the present plea, that Mr R. had a technical role. The applicants also admitted, in their reply to the statement of objections, that the final prices of the products [confidential] and [confidential], namely glass pieces for sunroofs, had indeed been discussed during that meeting. Moreover, it can be seen from the notes to which the Commission refers in the contested decision that the applicants and Saint-Gobain, at that meeting, ‘agreed [to] maintain prices’ for the two abovementioned carglass products at [confidential] German marks.

158    It follows that the Commission rightly concluded that the applicants and Saint-Gobain had, during that meeting, coordinated prices for a carglass piece for passenger vehicles and light commercial vehicles. That finding cannot be called into question by the fact, emphasised by the applicants, that the discussions that took place between the applicants and Saint-Gobain during that meeting also concerned technical issues possibly covered by the block exemption as regards specialisation agreements. That is not, by itself, capable of mitigating or neutralising the anti-competitive nature of the coordination on prices identified above.

159    In the second place, the applicants do not deny participating in another meeting — trilateral on that occasion — on an unspecified date in the spring of 1998, along with Saint-Gobain and AGC (Splintex), held at the home of an employee of AGC (Splintex) in Königswinter, Germany. Without disputing the content of that meeting, the applicants nevertheless claim that it was unrelated to the club discussions, since that meeting concerned a single manufacturer, namely [confidential], and pursued specific objectives. In those circumstances, they claim, the Commission was wrong to treat that meeting as part of the single and continuous infringement which is the subject of the contested decision.

160    In that regard, it can be seen from the contested decision that, at that meeting, employees of the applicants, of Saint-Gobain and of AGC (Splintex) exchanged price information as well as other commercially sensitive information concerning the call for tenders launched by [confidential] relating to the new model of [confidential]. The leniency applicant confirmed, in its oral statements to the Commission, that the object of those discussions was to allocate the supply of carglass for that model between the three competitors, while ensuring that high prices were obtained. The applicants also do not dispute the Commission’s finding in recital 132 of the contested decision that, in order to reach the desired price level, the competitors started with the current price charged by the applicants for the [confidential], to which 25% was added in order to take into account the larger surface of the windscreen of the new model of [confidential]. The leniency applicant also stated that, during that meeting, it asked Saint-Gobain and the applicants to ‘cover’ it as regards the allocation of the carglass supply contract for that model.

161    It is therefore established not only that the applicants participated in that meeting, but also that that meeting had an anti-competitive object.

162    In the third place, it is true that the evidence in the file does not prove that the applicants participated in the contacts that took place on 18 and 28 May 1998 between an employee of AGC (Splintex) and an employee of Saint-Gobain. However, the notes taken at those contacts that have been added to the file contain several indicia supporting the Commission’s interpretation that AGC (Splintex) and Saint-Gobain had, at the very least, the intention of contacting the applicants in order to extend their collusive discussions. Thus, one of those notes indicates that, although ‘[AGC (Splintex)] [was] well placed’, that producer was not offering the lowest price, and continues with a suggestion that the lowest offer would come from the applicants. The meaning of that passage must be understood in the light of the ‘covering’ mechanism, explained in paragraph 77 above, which was at the core of the infringement penalised in the contested decision. Another note contains, in addition to a quite similar statement in relation to the model [confidential], a question explicitly regarding the applicants’ prices, and emphasises the need to contact the applicants in that respect.

163    In the fourth place, it can be seen from the notes taken by Mr T. on 22 September 1998 that, at the very least, a meeting was scheduled to take place in Fleurus (Belgium) between the applicants, Saint-Gobain and AGC (Splintex) on 29 September 1998. Although it cannot be established on the basis of the file that the meeting in question actually took place, the fact remains that those notes explicitly refer to the model [confidential]. First, it can be seen from the leniency applicant’s oral statements that contacts indeed took place between it, the applicants and Saint-Gobain between May and November 1998 — concerning the supply of carglass for the [confidential] — in which an employee of the applicants communicated information on the applicants’ prices. Secondly, the leniency applicant’s statements confirm that the leniency applicant used that information in order to prepare subsequent discussions concerning the new model of [confidential].

164    Thus, that evidence also supports the Commission’s interpretation that the applicants participated since 1998 in the exchange of sensitive information on prices and production volumes concerning the award of certain contracts for the supply of carglass to car manufacturers.

165    In addition to those indicia, there is a table drawn up by Mr T., an employee of the leniency applicant, on 17 June 1998. That table, which, according to the leniency applicant, was completed with information received from its competitors, contains a reference to the production of [confidential] windscreens by the applicants, covering four models of the manufacturer [confidential], corresponding to [confidential] of the total market shares expressed in production volume, and a turnover of [confidential] French francs (FRF), corresponding for its part to [confidential] of the total market shares expressed in turnover.

166    Lastly, in the fifth place, it can be seen from the handwritten notes taken by Mr B., to which the Commission refers in recital 157 of the contested decision, when read in the light of the leniency applicant’s statements, that the applicants, Saint-Gobain and AGC (Splintex) exchanged market share estimations in 1998 as regards the [confidential] account. Those notes and statements also show that the applicants supplied sensitive information concerning prices and production volumes of carglass for models of the manufacturer [confidential] to an employee of the leniency applicant.

167    Thus, it follows from the reasoning set out in paragraphs 154 to 166 above that, while it cannot be concluded that the applicants participated in all of the collusive meetings and contacts between 10 March 1998 and 15 January 1999, it is, however, established that the applicants, from 10 March 1998, took part in various contacts and meetings in which they exchanged commercially sensitive information with competitors, concerning, inter alia, prices and production volumes. The exchange of commercial information between competitors in preparation for an anti-competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81(1) EC (see, to that effect, Tréfilunion v Commission, paragraph 80 above, paragraph 82, and BPB v Commission, paragraph 80 above, paragraph 178).

168    Moreover, the notes and the statements of the leniency applicant examined in paragraphs 154 to 166 above support the Commission’s view that the applicants participated, from 10 March 1998, in discussions having as their object the allocation of supplies of carglass pieces for certain models of various car manufacturers. Even if the Commission does not succeed in showing that the undertakings concluded an agreement, in the strict sense of the term, it is sufficient, in order to find an infringement of Article 81(1) EC, that the competitors made direct contact with a view to ‘stabilising the market’ (see, to that effect, BPB v Commission, paragraph 80 above, paragraph 170).

169    As is clear from paragraph 158 above, it is also established that, in the initial meeting on 10 March 1998, the applicants and Saint-Gobain agreed on the price at which the products [confidential] and [confidential] would be sold to the car manufacturers.

170    Accordingly, the conduct for which the applicants were found liable by the Commission as from 10 March 1998 was indeed anti-competitive.

171    It must however be examined whether, in accordance with the principles set out in paragraph 150 above, that conduct formed part of the overall plan of the single and continuous infringement which is the subject of the contested decision, because it had the same object of distorting competition within the common market.

172    The Court takes the view, in that regard, that the Commission correctly established the continuity of methods and practices between the conduct examined in paragraphs 154 to 166 above and the single and continuous infringement found by the Commission in the contested decision (see, by analogy, Dansk Rørindustri v Commission, paragraph 127 above, paragraph 68).

173    Thus, first of all, contrary to the applicants’ contention, the fact that the meeting held in the spring of 1998 in relation to the new model of [confidential] concerned only one car manufacturer cannot be interpreted as meaning that the discussion in question did not form part of the single and continuous infringement penalised in the contested decision. As noted in paragraph 108 above, first, the achievement of the overall objective of stabilising the market shares of the members of the club necessarily presupposed that discussions took place concerning the allocation of specific contracts for supplies to certain car manufacturers, having regard to the existing distribution of supplies. Secondly, the Commission has sufficiently demonstrated that such discussions gradually touched upon, if not all of the supply contracts, at the very least the main car manufacturers within the EEA. Given the anti-competitive purpose of that meeting, as noted in paragraph 160 above, it must be considered that it indeed formed part of the discussions concerning the concerted allocation of carglass supply contracts through the coordination of pricing policies and customer supply strategies penalised as a single and continuous infringement in the contested decision.

174    Next, while it is true that the various contacts and meetings identified by the Commission in the contested decision between 10 March 1998 and 15 January 1999 did not yet concern the supply of carglass to almost all car manufacturers within the EEA, the overall examination of the evidence analysed in paragraphs 154 to 166 above nevertheless shows that the meetings and contacts in which the applicants participated during that period concerned the supply of carglass to several major car manufacturers within the EEA, namely [confidential]. That evidence also provides a set of indicia that the applicants took part in collusive practices as regards the allocation of supply contracts during the period at issue in the context of the present plea in law, through their participation in the ‘covering mechanism’, explained in paragraph 77 above, and that those collusive practices involved, inter alia, mutual monitoring of market shares. There is a clear continuity between that evidence and that which characterised the collusive practices and conduct identified by the Commission during the infringement period which began on 15 January 1999.

175    Moreover, the succession of regular meetings and contacts between several competitors on the carglass market in 1998, in order to exchange sensitive information and to discuss the allocation of certain supply contracts, tends to confirm that there was, as from that period, a common intention, among the participants in those meetings and contacts, to begin stabilising the market by measures restricting competition (see, by analogy, Dansk Rørindustri v Commission, paragraph 127 above, paragraph 46). Accordingly, those discussions were already linked to the overall objective of the cartel that is the subject of the contested decision, consisting in an overall stabilisation of the respective positions of the participating undertakings on the carglass market in the EEA.

176    Lastly, as can be seen from recital 664 of the contested decision, although the participants in the cartel had, from the beginning, a common intention to begin stabilising the market, they only progressively extended their collusive behaviour to a growing number of car manufacturers during the ‘roll-out’ period. In that respect, it can be seen from the minutes dated 6 December 2001 and bearing the reference EF7, examined in paragraphs 89 to 91 above, that the anti-competitive discussions between the members of the club were organised by country during the first infringement period, which the Commission termed the ‘roll-out’ phase, before being organised at the EEA level.

177    That last finding must be placed in the more general context of the carglass market in the EEA and of the operation of the single and continuous infringement penalised in the contested decision.

178    Thus, in the first place, it can be seen from recital 66 of the contested decision, which the applicants do not dispute, that certain car manufacturers opted to conclude contracts for the whole life cycle of a car model and, as the Commission noted, those contracts have typically a supply period of five to seven years or even longer.

179    In the second place, as emphasised in recital 660 of the contested decision, the objective of stabilising the market shares of the members of the club did not require collusion on each supply contract. The need to discuss the allocation of a given supply contract was assessed, in the context of the cartel at issue, on the basis of the prevailing allocation of supplies, the perceived need to take measures to maintain the respective market shares of the participants and the ability of each individual contract to bring about an appreciable change in the share of the overall supplies envisaged by each cartel participant.

180    In the third place, and lastly, it is necessary to recall the finding in paragraph 127 above, where it was noted that a complex infringement which, as in the present case, is based not only on a system of exchange of sensitive information on prices and mutual monitoring of market shares, but also on collusion intended to share between competitors the supply contracts with the majority of customers within the EEA as well as on a compensation mechanism, is likely to involve a large number of meetings and contacts, distributed over several months or years, in which the means of implementing the overall collusive plan are discussed and refined, with the plan therefore materialising progressively.

181    In that context, the fact that the collusive practices of the club, during the period between 10 March 1998 and 15 January 1999, concerned only certain major car manufacturers within the EEA does not mean that those practices cannot be included in the single and continuous infringement penalised in the contested decision, since the fact that certain characteristics or the intensity of those practices changed in the course of the infringement period does not call into question their inclusion in the present case (see, by analogy, Case T‑377/06 Comap v Commission [2011] ECR II‑1115, paragraph 85).

182    The Court also notes that the applicants did not distance themselves publicly from what was discussed at the anti-competitive meetings and contacts in which they participated between 10 March 1998 and 15 January 1999, nor did they put forward any evidence capable of establishing that their participation in those meetings and contacts was without any anti-competitive intention by demonstrating that they had indicated to their competitors that they were participating in those meetings in a spirit that was different from that of their competitors (see the case-law cited in paragraph 84 above).

183    In the light of all those considerations, it must be held that the Commission did not err in concluding that the applicants had participated in the contested infringement during the period between 10 March 1998 and 15 January 1999. Consequently, the second plea in law must be rejected as unfounded.

III –  The pleas in law concerning the calculation of the fine imposed on the applicants

184    The following pleas will be considered in turn: (i) the plea in law whereby the applicants allege, in essence, that the Commission took into account inappropriate sales figures in the calculation of the fine, committed a procedural error in that regard and failed to state reasons; (ii) the plea in law alleging an infringement of the principle of proportionality and the principle that penalties must be specific to the offender, and disregard for previous administrative practice; (iii) the plea in law whereby the applicants allege that the Commission failed to take sufficient account, in calculating the fine, of the lesser gravity of the applicants’ conduct by comparison with that of Saint-Gobain and of AGC (Splintex) and thereby breached the principle of equal treatment; and (iv) the plea in law alleging failure to observe the ceiling of the fine as laid down in Article 23(2) of Regulation No 1/2003.

185    However, as a preliminary point, it is necessary to deal with the applicants’ complaint alleging that the Commission committed a methodological error in its assessment of the relative gravity of the applicants’ participation in the cartel at issue.

A –  The method employed by the Commission in order to assess the relative gravity of the applicants’ participation in the cartel at issue

186    It is necessary to examine, as a preliminary, the applicants’ argument that the Commission should have taken into account, in calculating the basic amount of the fine, the lesser gravity of their conduct in the infringement, in comparison with that of AGC (Splintex) and of Saint-Gobain. The applicants claim in that regard that the Commission erred in calculating the basic amount of the fine imposed on them by, first, using the same proportion of the sales connected directly or indirectly with the infringement as that used as regards the other participants in the cartel, namely 16%, and, secondly, using the same proportion for the calculation of the additional amount, also known as the ‘entry fee’, as that used as regards the other participants, namely 16%.

187    That argument cannot, however, be accepted.

188    It can be seen from the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’), applied in the contested decision, as well as from the case-law that, in principle, whilst the gravity of the infringement is initially assessed on the basis of the particular characteristics of the infringement, such as its nature, the cumulative market share of all the undertakings involved, the geographical scope of the infringement and whether it was implemented, that assessment is subsequently adjusted according to the aggravating and mitigating circumstances specific to each of the undertakings which participated in the infringement (see, to that effect, Case T‑348/08 Aragonesas Industrias y Energía v Commission [2011] ECR II‑7583, paragraph 264 and the case-law cited).

189    Thus, the first stage of the Commission’s methodology for setting a fine aims to determine the basic amount of the fine to be imposed on each undertaking concerned, by applying to the value of the sales of the goods and services concerned on the relevant geographical market of each of the undertakings an initial multiplier reflecting the gravity of the infringement, and a second multiplier aimed at deterring them from undertaking unlawful conduct in the future. As is apparent from the 2006 Guidelines, each of those multipliers is determined in the light of factors which reflect the characteristics of the infringement as a whole, that is to say inasmuch as it combines all of the anti-competitive conduct of all of the participants (Aragonesas Industrias y Energía v Commission, paragraph 188 above, paragraph 265).

190    Therefore, contrary to what the applicants claim, in determining the amount of those two multipliers, it is not necessary to take account of the specific characteristics of the infringement committed by each of the participants taken individually, such as an absence of one of them from certain meetings or contacts, or even the fact that one of them did not implement certain agreements. In addition, that finding is supported by the very purpose of the second stage of the method for setting fines, the precise aim of which is to take account of the aggravating or attenuating circumstances which characterise the individual anti-competitive conduct of each of the participants in the infringement at issue (see, to that effect, judgment of 11 July 2013 in Case C‑444/11 P Team Relocations and Others v Commission, ECR, paragraph 105; Aragonesas Industrias y Energía v Commission, paragraph 188 above, paragraph 266).

191    In other words, in applying the 2006 Guidelines, it was open to the Commission to take into account the relative gravity of the applicants’ participation in the infringement and the particular circumstances of the case either when assessing the gravity of the infringement or when adjusting the basic amount according to the mitigating and aggravating circumstances, provided, in the latter case, that it took sufficient account of the relative gravity of the participation in the infringement, and any variation in that gravity over time (Case C‑444/11 P Team Relocations and Others v Commission, paragraph 190 above, paragraph 104).

192    Consequently, without prejudice to the examination of the other pleas in law relating to the calculation of the fine, the Commission was justified in applying the same coefficients to all of the addressees of the contested decision in determining the proportion of sales that were directly or indirectly connected with the infringement and in setting the additional amounts included in the fines. Likewise, it was open to the Commission to examine the relative gravity of the applicants’ participation in the cartel when assessing the aggravating and mitigating circumstances specific to each of the undertakings concerned.

B –  The third plea in law, alleging the taking into account of inappropriate sales figures in the calculation of the fine, a procedural error and failure to state reasons

193    The third plea in law, which concerns the value of sales taken into account by the Commission in calculating the fine imposed on the applicants, is divided into three parts. The first part alleges the taking into account of inappropriate sales figures in the calculation of the fine. The second part alleges a breach of the applicants’ procedural rights under Article 27 of Regulation No 1/2003. Lastly, the third part of the plea alleges a failure to state reasons.

1.     The first part, alleging the taking into account of inappropriate sales figures in the calculation of the fine

a)     Arguments of the parties

194    The applicants take issue with the Commission, in the first part of the plea, for not having followed the method for calculating fines set out in point 13 of the 2006 Guidelines, whereby only sales of the undertaking concerned to which the infringement directly or indirectly relates made during the last full year of the undertakings’ participation in the infringement may be taken into account for the purpose of calculating the fine. The value of sales taken into account by the Commission in the applicants’ case is significantly higher than that of the sales to which the infringement directly or indirectly relates and, moreover, covers sales made outside the last full year of the applicants’ participation in the infringement.

195    The applicants claim, first of all, in that regard, that the Commission was not entitled to take account of sales made under contracts which were concluded before the beginning of the infringement period and which were not renegotiated during the infringement period. At the hearing, the applicants submitted that while, in accordance with the case-law, the concept of the value of sales referred to in point 13 of the 2006 guidelines cannot be understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by the cartel, that concept cannot be extended to encompass sales made by the undertaking in question which do not fall within the scope of that cartel.

196    For that reason, the Commission was wrong to include in its basis for calculation sales of carglass made under contracts which were not shown to have been the subject of illegal discussions. Only sales which are directly or indirectly affected by the infringement can be taken into account. The applicants emphasise that, even if it were shown that the objective of the contacts was overall stabilisation of market shares, that does not mean that all sales to car manufacturers over a given period were affected in that sense. Thus, it is necessary to take account of the fact that each contract relates to distinct products and of the fact that car manufacturers wield considerable power in each negotiation. Sales made on the basis of a contract won in full competition are not relevant from the aspect of reflecting the damage to competition caused by the infringement. Nor can the Commission assume that certain contracts are the result of collusion between members of the club unless it is in a position to demonstrate that that is so.

197    The Commission also erred in calculating an average of affected sales covering the entire infringement period, when, according to point 13 of the 2006 Guidelines, only sales in the last full year of the infringement ought to have been taken into account.

198    The applicants therefore contend that the maximum amount of sales which were connected directly or indirectly to the fine that could be taken into consideration in setting the fine imposed on them was EUR 196 million. They also request the Court to order the Commission, by way of a measure of organisation of procedure, to provide information showing precisely the sales and methodology used and the calculations it made when determining the value of sales.

199    The Commission disputes the applicants’ arguments. It contends that it adopted a prudent approach in the present case as regards the calculation of the value of sales connected directly or indirectly with the infringement by distinguishing three infringement periods in the contested decision. That approach consisted, for the first ‘roll-out’ period, in taking into consideration all sales to car manufacturers in respect of which it had evidence that at least one carglass supply contract had been the subject of collusion. The Commission states that the figures used were those communicated to it by the parties to the cartel. It explains, moreover, that in the roll-out period it took into account sales to manufacturers in respect of which it had direct evidence of collusion only from the year during which that collusion occurred and not for the entire roll-out period. On the other hand, the Commission took into account all glass sales to car manufacturers for the period between 1 July 2000 and 3 September 2002. None the less, taking the view that the applicants had withdrawn from the cartel on 3 September 2002, it weighted the 2002 sales figures by taking into account only eight months of participation in the infringement for that year. In its rejoinder, the Commission provided further details of the way in which it calculated the fine imposed on the applicants.

200    According to the Commission, the approach taken in the contested decision was justified both by the way in which the cartel operated, consisting in exchanges of sensitive price information, the allocation of supply contracts and the implementation of compensation mechanisms, and by the objective of the cartel, which was to ensure the stability of the market shares of each of the competitors on the entire original equipment carglass market in the EEA. That stabilisation took the form, in particular, of compensations and adjustments between different accounts, although that objective could be achieved without any need for collusion on each supply contract with the car manufacturers. In the Commission’s submission, it follows that, even if all the contracts were not the subject of collusion, that objective of stabilising market shares progressively affected the entire carglass market. In any event, the applicants have not claimed or, a fortiori, demonstrated, that the Commission made a manifest error of assessment in determining the value of sales which served as the basis for the calculation of the fine imposed on them.

b)     Findings of the Court

201    The first part is, in essence, subdivided into two complaints. The first complaint alleges that the Commission’s derogation, in the present case, from the method of calculation of fines set out in point 13 of the 2006 Guidelines was unjustified, in so far as that method involves, in principle, the taking into consideration, for the purpose of calculating the amount of the fine, sales made by the undertaking concerned during the last full year of its participation in the infringement. By their second complaint, the applicants criticise the Commission for including in the relevant sales figures, for the purpose of calculating the fine, sales made in the context of contracts concluded before the beginning of the infringement period which were not renegotiated during that period, and sales made in the context of carglass supply contracts which were not shown to have been specifically the subject of collusion.

202    It must be noted, as a preliminary point, that the Commission has a margin of discretion when fixing the amount of fines in order that it may channel the conduct of undertakings towards observance of the competition rules, and that those fines therefore constitute an instrument of the Commission’s competition policy (Case T‑150/89 Martinelli v Commission [1995] ECR II‑1165, paragraph 59, and Aragonesas Industrias y Energía v Commission, paragraph 188 above, paragraph 293).

203    However, while the EU judicature recognises that the Commission has such a margin of discretion, that does not mean that it must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the EU judicature establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. In order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the European Union (see judgment of 8 December 2011 in Case C‑272/09 P KME Germany and Others v Commission, ECR I‑0000, paragraphs 94 and 96 and the case-law cited; judgment of 8 December 2011 in Case C‑386/10 P Chalkor v Commission, ECR I‑0000, paragraphs 54 and 56 and the case-law cited; and judgment of 8 December 2011 in Case C‑389/10 P KME Germany and Others v Commission, ECR I‑0000, paragraphs 121 and 123 and the case-law cited). Objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (Case C‑272/09 P KME Germany and Others v Commission, paragraph 97; Chalkor v Commission, paragraph 57; and Case C‑389/10 P KME Germany and Others v Commission, paragraph 124).

204    In accordance with settled case-law, the taking into account of the turnover of each of the undertakings during the reference year, namely the last full year of the infringement found, makes it possible to assess the size and economic power of each undertaking and the scale of the infringement committed by each of them, those factors being relevant to an assessment of the gravity of the infringement committed by each undertaking (judgment of 30 September 2009 in Case T‑175/05 Akzo Nobel and Others v Commission, not published in the ECR, paragraph 143, and judgment of 2 February 2012 in Case T‑83/08 Denki Kagaku Kogyo and Denka Chemicals v Commission, not published in the ECR, paragraph 134).

205    Accordingly, it follows from point 13 of the 2006 Guidelines that, in determining the basic amount of the fine to be imposed, the Commission takes the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates, in the relevant geographic area within the EEA, and that it normally takes into account, in that respect, the sales made by the undertaking during the last full business year of its participation in the infringement.

206    In adopting such rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its margin of discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraph 211 and the case-law cited, and Case T‑73/04 Carbone-Lorraine v Commission [2008] ECR II‑2661, paragraph 71).

207    In the present case, it must be noted that the Commission indicated, both in the statement of objections and in the contested decision, that the fines imposed in that decision had been calculated by reference to the principles laid down in the 2006 Guidelines. Thus it noted, in particular, in recital 658 of the contested decision, the rule of calculation of relevant sales laid down in point 13 of those guidelines. The Commission also explained why, in its view, the calculation of the value of relevant sales could not be carried out, in the present case, by reference to only those contracts for which it had direct evidence of an agreement or a concerted practice. In order to justify that approach, the Commission, in particular, pointed out in recitals 660 to 662 of the contested decision not only that agreements or concerted practices had been established in respect of all the major car manufacturers in the EEA during the infringement period, but also that the aim of the cartel was to achieve overall stability of the participants’ market shares and that that stability had been pursued, inter alia, by means of a compensation mechanism between those participants.

208    The Commission then indicated that, in the present case, it would depart from the method of calculation of the fine whereby account was taken only of the sales made during the last full year of participation in the infringement, set out in point 13 of the 2006 Guidelines. In recitals 664 to 667 of the contested decision, the Commission justified that derogation, in essence, on the ground that the cartel at issue was specific in that it had varied in intensity during the infringement period. During the first period, between March 1998 and the first half of 2000 (the ‘roll-out phase’), the Commission had direct evidence of cartel activity for only some European car manufacturers. During the period between 1 July 2000 and 3 September 2002, on the other hand, the agreements or concerted practices concerned at least 90% of all original equipment carglass sales within the EEA. Lastly, the period between 3 September 2002 and the end of the infringement period (the ‘decline’), was characterised by a slowdown of the cartel’s activities following the applicants’ departure.

209    Having regard to those circumstances, the Commission indicated that it had taken a ‘more calibrated’ approach, which consisted in reducing the weighting of the ‘roll-out’ period and the ‘decline’ period in the calculation of the basic amount of the fine, by only taking account, for those periods, of the value of sales to car manufacturers for which it had direct evidence that they had been the subject of collusive practices. On the other hand, all the sales made within the EEA by each participating undertaking were taken into account as regards the period between 1 July 2000 and 3 September 2002.

210    According to recital 667 of the contested decision, the sales taken into account in the calculation of the fine were determined for each participant in the infringement on the basis of the total sales calculated in accordance with the approach explained in the preceding paragraph, divided by the total number of months of participation in the infringement for each participant and multiplied by 12 to establish an annual weighted average. The Commission also indicated that those calculations were carried out on the basis of the figures provided by the undertakings concerned in response to the request for information that it had sent to them on 25 July 2008.

211    In that regard, the Court notes first of all that, although the infringement period was divided into three periods in order to calculate the fines imposed in the contested decision, only the first two periods were relevant as regards the applicants, namely the ‘roll-out’ period and the period between 1 July 2000 and 3 September 2002. It is precisely because of the departure from the cartel of the undertaking composed of the applicants, as from 3 September 2002, that the Commission took into account, for the ‘decline’ period, only the sales to manufacturers in respect of which collusion had been established directly.

212    Next, it must be emphasised that it can be seen both from the wording of point 13 of the 2006 Guidelines, by the use of the adverb ‘normally’ in the second sentence of that point, and from point 37 of those guidelines that, in imposing a limit on its margin of discretion as regards the calculation of fines, the Commission envisaged the eventuality where the particular circumstance of a case would justify derogation from the rule concerning the taking into account, in the calculation of the fine, of the sales made by the undertaking concerned during the last full year of its participation in the infringement (see, to that effect, judgment of 13 September 2013 in Case T‑566/08 Total Raffinage Marketing v Commission, ECR, currently under appeal, paragraph 412).

213    The Court considers that the Commission could lawfully take the view that the particular circumstances of the cartel that is the subject of the contested decision justified such derogation in the present case.

214    That cartel constitutes a complex infringement that consisted in a concerted allocation of contracts concerning the supply of carglass to the major car manufacturers in the EEA, through the coordination of pricing policies and customer supply strategies, the objective of which was to maintain an overall stability of the various participants’ market shares. Moreover, that infringement was based not only on a system of exchange of sensitive price information, but also on collusion aimed at sharing between competitors supply contracts for the majority of car manufacturers within the EEA, as well as a monitoring and compensation mechanism. That method of operation involved a large number of meetings and contacts, over several months or years, in which the means of implementing the overall collusive plan were discussed and refined, with the plan materialising progressively (see paragraphs 127 and 128 above).

215    It can be seen from recitals 664 and 667 of the contested decision that it is precisely in order to reflect that gradual character of the infringement’s implementation as well as the fact that direct evidence of collusive practices was available, as regards the ‘roll-out’ period, only in respect of certain car manufacturers within the EEA that the Commission derogated in the present case from the approach that it had set out in point 13 of the 2006 Guidelines, according to which the fine must be calculated by reference to sales to which the infringement directly or indirectly relates made by the undertaking concerned during the last full year of its participation in the infringement.

216    It follows that the Commission cannot be criticised, in the present case, for calculating the fine imposed on the applicants by carrying out a weighting, as regards the sales taken into account, between the years in which the applicants participated in the ‘roll-out’ phase of the cartel, on the one hand, and in its central phase, on the other, since such a method of calculation is capable of establishing a fine that reflects more accurately the characteristics of the cartel at issue than if the fine had been calculated by reference to only those sales made during the last full year of the applicants’ participation in the infringement.

217    By their second complaint, the applicants allege, in essence, that the Commission disregarded in another way point 13 of the 2006 Guidelines. They argue that the Commission erred in including in the value of sales connected directly or indirectly to the infringement (i) sales made during the infringement period on the basis of contracts concluded before the beginning of the infringement and which were not renegotiated during the infringement period and (ii) sales made on the basis of carglass supply contracts which were not shown to have been the subject of collusion.

218    However, that argument cannot be accepted.

219    It must first of all be noted that point 6 of the 2006 Guidelines, which is contained in the introductory part of those guidelines, states that ‘[t]he combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’.

220    Thus, the case-law preceding the adoption by the Commission of guidelines aiming to provide a framework for the exercise of its margin of discretion concerning the setting of fines had already indicated consistently, with regard to the setting of the fine, that it is open to the Commission to take into account not only the undertaking’s overall turnover, which constitutes an indication, albeit an approximate and imperfect one, of the undertaking’s size and its economic power, but also the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which thus gives an indication of the scale of the infringement (see Case C‑444/11 P Team Relocations and Others v Commission, paragraph 190 above, paragraph 75 and the case-law cited). In particular, the turnover in the products which were the subject of a restrictive practice constitutes an objective criterion giving a proper measure of the harm which that practice does to normal competition (Case T‑151/94 British Steel v Commission [1999] ECR II‑629, paragraph 643, and judgment of 8 July 2008 in Case T‑50/03 Saint-Gobain Gyproc Belgium v Commission, not published in the ECR, paragraph 84).

221     It follows that the purpose of point 13 of the 2006 Guidelines is to adopt as the starting point for the calculation of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it. Consequently, while the concept of the value of sales referred to in point 13 of those guidelines cannot extend to encompassing sales made by the undertaking in question which do not fall within the scope of the alleged cartel, it would however be contrary to the objective of that provision if that concept were understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (Case C‑444/11 P Team Relocations and Others v Commission, paragraph 190 above, paragraph 76).

222    Thus, contrary to the applicants’ assertions, it does not follow from point 13 of the 2006 Guidelines that only the value of sales made on the basis of contracts in respect of which specific collusion has been proven may be taken into consideration in the calculation of the basic amount of a fine (see, to that effect, Joined Cases T‑204/08 and T‑212/08 Team Relocations and Others v Commission, paragraph 126 above, paragraphs 61 and 62, and Putters International v Commission, paragraph 126 above, paragraph 58).

223    It must be added that such a limitation would have the effect of artificially minimising the economic significance of the infringement committed by a particular undertaking since the mere fact that a limited amount of direct evidence of sales actually affected by the cartel had been found would lead to the imposition of a fine which bore no actual relation to the scope of the cartel in question. Such a reward for being secretive would also adversely affect the objective of the effective investigation and penalising of infringements of Article 81 EC and, therefore, cannot be permitted (Case C‑444/11 P Team Relocations and Others v Commission, paragraph 190 above, paragraph 77).

224    In the present case, the Court considers that the method employed by the Commission to calculate the value of sales connected directly or indirectly to the infringement was justified in view of the scope of the cartel, its mode of operation and its overall objective of stabilising market shares.

225    Thus, in the first place, it is undisputed that the cartel at issue gradually touched upon the sale of carglass to almost all of the major car manufacturers within the EEA. In the second place, as the Commission rightly points out, in order to pursue effectively the objective of stabilising the market shares of the participants in the cartel, it was not necessary to collude on each supply contract. The applicants have not put forward any evidence in that respect capable of calling into question the finding made in recital 660 of the contested decision, according to which the need for collusion on a given supply contract depended on the allocation of supplies, the perceived need to take measures to maintain the respective market shares, and the ability of each individual contract to bring about an appreciable change in the share of the overall supplies envisaged by each cartel participant.

226    In those circumstances, the Commission was therefore entitled to include in the value of sales calculated in accordance with point 13 of the 2006 Guidelines, for the purpose of calculating the basic amount of the fine, carglass sales made during the period of infringement on the basis of contracts concluded before the beginning of the infringement period and which were not renegotiated during that period, and carglass sales made on the basis of supply contracts concluded during the infringement period but which were not specifically shown to have been the subject of collusion. Having regard to the considerations in paragraph 225 above, it must be held that the turnover in question arose from the sale of the goods in respect of which the infringement at issue was committed.

227    It follows that the first part of the third plea in law must be rejected as unfounded.

2.     The second part, alleging breach of the applicants’ procedural rights under Article 27 of Regulation No 1/2003

a)     Arguments of the parties

228    In the second part of the plea, the applicants maintain that the Commission breached their procedural rights under Article 27 of Regulation No 1/2003 by not affording them the opportunity to be heard on the precise method of calculating the number of sales connected directly or indirectly with the infringement found in the contested decision. According to the applicants, that method was not set out expressly in the statement of objections, nor was it foreseeable. The value of sales must be regarded as an essential factor in the assessment of the basic amount of the fine and, accordingly, the method which enables it to be calculated must be communicated to the undertakings concerned before the decision is adopted, to enable them to express their views on the matter.

229    The various supplementary requests for information sent to the parties after notification of the statement of objections did not make good that procedural error. The applicants maintain that, while it might be inferred from those requests that the Commission was examining a number of methods of calculating the value of sales, it never explained which method it proposed to use.

230    The Commission rejects those criticisms. It states that it was in order to take into consideration certain arguments put forward by the addressees of the statement of objections that it partially departed in the present case from the 2006 Guidelines and, accordingly, limited the volume of sales taken into account during the ‘roll-out’ phase. The Commission emphasises, moreover, that the applicants had had the opportunity to make known their views as to the best way of calculating the fine and maintains that it was not required to submit to the applicants the method finally chosen before the adoption of the contested decision. The Commission refers, in that respect, to settled case-law, according to which the right to be heard in respect of the calculation of the amount of fines does not cover the way in which the Commission proposes to apply the imperative criteria of the gravity and the duration of the infringement when determining that amount.

b)     Findings of the Court

231    In the context of that second part, the applicants claim, in essence, that the Commission breached their rights of defence, whose scope — in the context of procedures implementing the rules on competition laid down in Articles 81 EC and 82 EC — is set out in Article 27 of Regulation No 1/2003, in failing to clarify in the statement of objections the approach that it was going to take in the contested decision in calculating the value of sales connected directly or indirectly to the infringement and, accordingly, not affording them the opportunity to be heard on that subject.

232    In that respect, it must be emphasised that, like Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), which was repealed and replaced by Regulation No 1/2003, the latter regulation provides, in Article 27(1), that the parties are to be sent a statement of objections which must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure (Aalborg Portland and Others v Commission, paragraph 83 above, paragraph 67), to enable those concerned to be aware of the conduct in which the Commission alleges they have engaged and to put forward their defence before the Commission adopts a final decision. That statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law, now laid down in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, which requires observance of the rights of the defence in all proceedings (see, to that effect, Case T‑299/08 Elf Aquitaine v Commission [2011] ECR II‑2149, paragraph 135 and the case-law cited, and judgment of 18 June 2013 in Case T‑404/08 Fluorsid and Minmet v Commission, ECR, paragraphs 106 and 108).

233    That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (Elf Aquitaine v Commission, paragraph 232 above, paragraph 136 and the case-law cited).

234    However, according to settled case-law, to give indications in the statement of objections concerning the level of the contemplated fines, when the undertakings have not been in a position to put forward their observations on the objections held against them, would be tantamount to anticipating inappropriately the Commission’s decision (see Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 21, and Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraph 434 and the case-law cited).

235    The fact that that a trader cannot, in advance, know precisely the level of the fines which the Commission will impose in each individual case is justified by the objectives of punishment and deterrence pursued by the penalties under the competition rules. Those objectives would be undermined if the undertakings concerned were able to assess the benefits which they would derive from their participation in an infringement by taking account, in advance, of the amount of the fine which would be imposed on them on account of that unlawful conduct (see, to that effect, Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 83).

236    Thus, where the Commission expressly indicates in its statement of objections that it is going to consider whether it is appropriate to impose fines on the undertakings concerned and it sets out the main factual and legal criteria capable of giving rise to a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines (see Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraph 428 and the case-law cited, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 181).

237    It follows that, so far as concerns the determination of the amount of the fines, the rights of defence of the undertakings concerned are guaranteed before the Commission by virtue of the fact that they have the opportunity to make their submissions on the duration, the gravity and the anti-competitive nature of the matters of which they are accused, but those rights do not require that the undertakings concerned have the opportunity to make submissions on the way in which the Commission proposes to employ the imperative criteria of the gravity and the duration of the infringement when determining the amount of the fines (Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraph 439). Moreover, the undertakings have an additional guarantee, as regards the setting of fines, in that the Court has unlimited jurisdiction and may, in particular, cancel or reduce the fine (see Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 200 and the case-law cited).

238    In the present case, it must first of all be pointed out that the Commission presented in detail, in the statement of objections it sent to the applicants, the facts on which it intended to rely in order to establish the existence of the infringement at issue. It also explained, in pages 132 to 134 and pages 136 to 139 of the statement of objections, why the meetings and contacts in which the applicants had — according to the Commission — participated constituted agreements or concerted practices within the meaning of Article 81(1) EC.

239    Next, the Commission set out, in pages 136 to 139 and 157 to 160 of the statement of objections, the evidence on which it relied in order to determine, in particular, the duration of the applicants’ participation in the infringement. It also described, in pages 161 and 162 of that statement of objections, the main factors which it would take into account in order to assess the gravity of the infringement, namely, in particular, the fact that collusive arrangements such as those found in the present case are among the most serious infringements of Article 81(1) EC, that those arrangements permeated almost the entire market for carglass in the EEA, to the detriment of not only car manufacturers, but also consumers, that the cartel participants were aware of the unlawful nature of their actions and, lastly, that the cartel’s activities covered the whole of the EEA.

240    The Commission added, in that statement of objections, that it would calculate the fines on the basis of the duration of the participation of each of the undertakings involved in the cartel, and of any aggravating or mitigating circumstances.

241    Having thus indicated the main factual and legal elements on which it intended to base its calculation of the fines, the Commission, as is clear from the case-law cited in paragraph 237 above, was not also required to state the manner in which it would use each piece of that evidence in calculating the fine. Contrary to the applicants’ assertions, and without prejudice to the examination of the third part of the present plea in law, it is irrelevant in that respect that the Commission ultimately departed partly, in the contested decision, from the method of calculating the value of sales set out in point 13 of the 2006 Guidelines (see also paragraphs 207 to 215 above).

242    In any event, it must be noted that the Commission indicated, on page 161 of the statement of objections, that the fine that it would impose in the present case would be calculated by reference to the principles laid down in the 2006 Guidelines. While it can indeed be seen from recitals 664 to 667 of the contested decision that the Commission partly departed, in the present case, from the method of calculation set out in point 13 of those guidelines, it did so, as the Commission rightly points out, in order to respond to certain arguments put forward by the addressees of the statement of objections as regards that method, both in their observations on that statement and in their replies to various requests for information sent to them by the Commission.

243    It follows that the Commission sufficiently informed the applicants, before the adoption of the contested decision, of the main factual and legal criteria on which it intended to rely in order to establish the applicants’ participation in an infringement of Article 81 EC and to penalise them for that participation, and that the applicants’ rights of defence, as enshrined in Article 27 of Regulation No 1/2003, have, to that extent, been respected.

244    Accordingly, the second part of the third plea in law must be rejected as unfounded.

3.     The third part, alleging a failure to state reasons

a)     Arguments of the parties

245    Lastly, in the third part of the third plea in law, the applicants take issue with the Commission for not having provided sufficient reasons in the contested decision concerning the calculation of the value of sales connected directly or indirectly to the infringement used in setting the amount of the fine imposed on them. Given the fact that the Commission departed from the 2006 Guidelines, it ought to have explained fully and clearly in the contested decision the calculations which enabled it to determine the value of the applicants’ sales used to calculate the fine imposed on the applicants. In addition, the incomplete information disclosed by the Commission in the context of the present action is not sufficient to enable the Court to exercise its power of review. The applicants therefore request the Court, by way of a measure of organisation of procedure, to order the Commission to provide precise information about the sales data which served as the basis for the calculation of the fine imposed on them, as well as the details of that calculation.

246    The Commission does not accept those criticisms. It contends that it is not required to disclose, in a decision finding an infringement of Article 81 EC, all the arithmetical calculations which it has carried out when determining the amount of a fine imposed in that decision.

b)     Findings of the Court

247    It must be noted that, as regards the setting of fines for infringements of competition law, the Commission fulfils its obligation to state reasons when, in its decision, it indicates the factors which enabled it to measure the gravity and the duration of the infringement committed, and it is not required to include a more detailed account or figures relating to the method used to calculate the fine (see Case T‑110/07 Siemens v Commission [2011] ECR II‑477, paragraph 311 and the case-law cited, and Case T‑138/07 Schindler Holding and Others v Commission [2011] ECR II‑4819, paragraph 243 and the case-law cited; see, to that effect, Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 66). Accordingly, however useful statements of figures relating to the calculation of fines may be, they are not essential to compliance with the duty to state reasons (Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 414; see, to that effect, Case C‑291/98 P Sarrió v Commission [2000] ECR I‑9991, paragraphs 75 to 77).

248    That approach is justified by the need to ensure that fines are not easily foreseeable by economic operators. If the Commission were required to indicate in its decision the figures relating to the method of calculating the amount of fines, the deterrent effect of those fines would be undermined. If the amount of the fine were the result of a calculation which followed a simple arithmetical formula, undertakings would be able to predict the possible penalty and to compare it with the profit that they would derive from the infringement of the competition rules (BPB v Commission, paragraph 80 above, paragraph 336).

249    In the present case, as can be seen from paragraph 207 above, the Commission indicated, in the contested decision, that the fine at issue had been calculated by reference to the principles set out in the 2006 Guidelines. In recital 658 of the contested decision, it referred to, inter alia, the rule of calculation of relevant sales set out in point 13 of those guidelines. The Commission also explained why, in its view, the calculation of the value of relevant sales could not be carried out, in the present case, by reference to only those contracts in respect of which it had direct evidence of an agreement or a concerted practice. In order to justify that approach, the Commission, inter alia, pointed out in recitals 660 to 662 of the contested decision that agreements or concerted practices had been established in respect of all the major car manufacturers in the EEA during the infringement period, that the aim of the cartel was to achieve overall stability of the participants’ market shares and that that stability had been pursued, inter alia, by means of a compensation mechanism between those participants (see, in that respect, paragraphs 217 to 227 above).

250    The Commission then indicated that it would depart from the method of calculation of the fine consisting in taking into account only the sales made during the last full year of participation in the infringement. In recitals 664 to 667 of the contested decision, the Commission justified that derogation from the method set out in point 13 of the 2006 Guidelines, in essence, on the ground that the cartel at issue was distinct in that it had varied in intensity between March 1998 and March 2003 (see, in that respect, paragraphs 207 to 216 above).

251    According to recital 667 of the contested decision, the sales taken into account in the calculation of the fine were determined, for each participant in the infringement, on the basis of the total sales calculated in accordance with the approach explained in paragraph 208 above, divided by the total number of months of participation in the infringement for each participant and multiplied by 12 to establish an annual weighted average. The Commission also indicated that those calculations were carried out on the basis of the figures provided by the undertakings concerned in response to the request for information that it had sent to them on 25 July 2008.

252    Those explanations must be read in the light of other parts of the contested decision, relating inter alia to the operation of the cartel (recitals 120 to 428 of the contested decision), in which the Commission systematically identified the manufacturers which had been the subject of unlawful contacts in the course of the various infringement periods.

253    In addition, the contested decision contains, in recitals 647 to 649, 658 to 667, 669 to 678, 682, 685 to 688, and 691 to 700, a significant number of clarifications concerning the calculation of the fines imposed on the addressees of the contested decision, as regards, inter alia, the relevant sales figures, the proportion of the value of sales taken into account, the entry fee and the adjustments to the basic amount in view of mitigating or aggravating circumstances.

254    It is therefore apparent that the statements made in the contested decision enabled the applicants to understand the factors on the basis of which the Commission examined the gravity and the duration of the infringement, as well as the method of calculation used in order to set the amount of the fine imposed on them. Accordingly, even if the details of that calculation are not contained in the contested decision, it must be held that that decision is not vitiated by a failure to state reasons or to state adequate reasons.

255    That conclusion is not called into question by the applicants’ argument that it is not possible to assess in the present case whether the Commission, in calculating the relevant sales as regards the ‘roll-out’ phase, took into consideration the sales made by the applicants to car manufacturers during all of that phase, or only as from the time at which a collusive contact had taken place concerning each of them. Moreover, and in any event, the Commission clarified that point in the present procedure. It can be seen from the explanations provided by the Commission in its written pleadings that it took into consideration the sales to a given car manufacturer, in the course of that phase, only as from the year in which that car manufacturer had been the subject of a collusive contact.

C –  The fourth plea in law, alleging infringement of the principle of proportionality and the principle that penalties must be specific to the offender, and disregard for previous administrative practice

a)     Arguments of the parties

256    In their fourth plea in law, the applicants argue that the fine imposed on them, one of the largest ever imposed on a participant in a cartel, is disproportionate. On that point, the contested decision fails to observe the principle that penalties must be specific to the offender, as the fine is not, in their submission, proportionate to the gravity of the infringement. The applicants contend that the conduct in which they are alleged to have engaged was not particularly harmful to competition, since the cartel was not systematically implemented and, furthermore, the infringement was not of long duration and did not involve an exceptionally large market.

257    The fact that the fine imposed on the applicants is close to, or even exceeds, the limit of 10% of turnover referred to in Article 23(2) of Regulation No 1/2003 is indicative of the disproportionate nature of that fine. At the hearing, the applicants more specifically claimed, in essence, that the new method of calculating fines set out in the 2006 Guidelines had the effect of penalising more heavily undertakings, like the applicants, whose activities are largely undiversified. That is why the fine imposed on the applicants represents a much more significant proportion of their total turnover in the preceding business year — close to, or in excess of, 10% — than the fines imposed on Saint-Gobain and on AGC (Splintex) in the light of those undertakings’ turnovers in that business year. Such a disparity shows the disproportionate character of the fine imposed on the applicants.

258    The contested decision also disregards previous administrative practice, since in the only two other decisions which had already been published when the action was brought and which applied the 2006 Guidelines, namely the Commission’s decision of 28 November 2007 in Case COMP/39.165 — Flat Glass (‘the Flat Glass decision’) and the Commission’s decision of 20 November 2007 in Case COMP/382.432 — Professional Videotapes (‘the Professional Videotapes decision’), the Commission had taken a barely higher percentage of sales connected directly or indirectly with the infringement, but had done so after finding that the infringements had been generally implemented. The degree of gravity of an infringement of Article 81 EC should depend, inter alia, on whether or not the infringement has been implemented, since otherwise the assessment of the damage to competition caused by an infringement might well be based on mere speculation. The different nature of the infringement referred to in the contested decision, which is not comparable to a complex cartel, in any event justified a difference of more than 2% between the rate applied in the present case to reflect the proportion of sales connected directly or indirectly to the infringement and the rate applied in the two earlier decisions mentioned above.

259    The applicants also take issue with the Commission for not having taken account, when calculating that fine, of the significant deterrent effect which, in their contention, the fine of EUR 140 million imposed on them in the Flat Glass decision already entailed. Thus, the Commission was wrong to include an entry fee of 16% in the amount of the fine imposed on them, in spite of the fact that the fine which they had to pay in the Flat Glass case already included an entry fee of 17%. That entry fee has a deterrent, and not a punitive, function, and it follows from the case-law that the amount of a fine must be adjusted in order to take account of the desired impact on the undertaking on which it is imposed, in particular so that the fine is not rendered excessive by reference to the undertaking’s financial capacity or the objective of deterrence pursued. The fact that the products concerned in the two cases are very closely linked and that the impact of the two fines is therefore focused on activities which are closely connected within the undertaking formed by the applicants is further justification for taking the Flat Glass decision into account in calculating the fine imposed on the applicants, including as regards the application of the limit referred to in Article 23(2) of Regulation No 1/2003.

260    The applicants also claim that, following their involvement in the proceedings conducted by the Commission, they undertook a comprehensive review of their competition law compliance policies and practices in order to ensure full compliance in the future. The Commission wrongly failed to take that circumstance into account in calculating the fine.

261    In addition, the applicants submit that the consulting firm’s report that they sent to the Court, in annex to their letter of 18 January 2013, shows that their financial situation has deteriorated since the adoption of the contested decision. They observe, in that respect, that, during the administrative procedure, the Commission did not allow them to make submissions on the possible application of section 35 of the 2006 Guidelines, concerning the inability to pay.

262    In the alternative, the applicants request the Court to exercise its unlimited jurisdiction in the present case and to reduce the fine to an appropriate level, taking into account the factors set out above.

263    The Commission does not accept those criticisms. It emphasises, first of all, that the reason for the ceiling of 10% of turnover, referred to in Article 23(2) of Regulation No 1/2003, is not to set a maximum that would be reached only in the case of the most serious infringements, but to prevent a situation in which an undertaking is unable, on account of its size, to pay a fine imposed on it for an infringement of Article 81 EC. The application of that limit means that the undertaking concerned is not required to pay in full the fine which, in principle, would be payable on the basis of an assessment of the gravity and duration of the infringement. It follows, in the Commission’s submission, that the mere fact that a fine is close to or equal to that ceiling gives no indication as to whether or not the fine is proportionate.

264    Nor is there any rule that prohibits the intermediate amounts of fines from regularly reaching the ceiling referred to in Article 23(2) of Regulation No 1/2003. At the hearing, the Commission clarified however, in that respect, that the present case cannot be compared to another in which it decided to take account of the more or less diversified character of the activities of the undertakings concerned, since, in that case, failure to take account of that factor would have led it to reduce too many fines in applying the limit set out in Article 23(2) of Regulation No 1/2003.

265    The Commission contends, next, that the high amount of the fine imposed on the applicants is explained by the significant size of the market covered by the cartel and also by the combined market shares of the members of the club in the EEA, by the fact that the applicants’ participation in the infringement was of long duration, and likewise by the particular gravity of the restrictions of competition which the cartel involved.

266    Moreover, the Commission submits that, in setting the proportion of sales connected directly or indirectly to the infringement at 16%, it did not exceed the margin of discretion which it enjoys when determining the amount of fines, as provided for, in particular, in the 2006 Guidelines. It is appropriate to take into account, in that regard, the fact that the allocation of customers and the allocation of market shares are by their very nature among the most serious restrictions of competition, the combined market share of the participants in the infringement and the fact that the cartel covered the whole of the EEA. Those factors justify taking a high proportion of sales into account. Furthermore, a rate of 16% is a low rate in the upper part of the scale applied by the Commission (15 to 30%). Such a rate is justified even where the cartel has not been implemented, since such implementation is only one of a number of factors taken into account in setting the amount of the fine.

267    As regards the applicants’ reference to the method of calculating the fines imposed in the Flat Glass and the Professional Videotapes decisions, the Commission first emphasises that, according to settled case-law, it cannot be bound by its previous administrative practice when calculating fines intended to penalise infringements of Article 81 EC. In any event, the Commission observes that the fines which it imposed in the Flat Glass and the Professional Videotapes decisions did not include a percentage connected with the implementation of the cartels which they were intended to penalise. Moreover, the applicants cannot claim that they suffered discrimination by comparison with the treatment given to the undertakings in the Flat Glass and the Professional Videotapes decision, since the percentage of sales taken into account in the contested decision is two percentage points less than that taken into account in calculating the basic amount of the fines in those two cases.

268    As regards the complaint relating to the failure to take into account the deterrent nature of the fine imposed on the applicants in the Flat Glass decision, the Commission emphasises that the entry fee constitutes a lump sum amount, independent of the duration of the infringement, which it is free to impose in order to punish sufficiently an undertaking’s decision to participate in a cartel. It follows from the 2006 Guidelines, moreover, that that amount must be imposed in cases of price-fixing agreements, as in the present case. In those circumstances, it is irrelevant that an entry fee had already been imposed on the applicants in the Flat Glass decision, as the Commission was entitled to take the view, without exceeding the limits of its margin of discretion, that that fact did not justify a departure, in the present case, from its methodology for calculating fines.

269    The Commission emphasises the difference between the present case and those which gave rise to the Commission’s decision of 17 December 2002 in Case COMP/E-2/37.667 — Speciality Graphites (‘the Speciality Graphites decision’) and the Commission’s decision of 3 December 2003 in Case COMP/E-2/38.359 — Electrical and mechanical carbon and graphite products (‘the Carbon and graphite products decision’), referred to by the applicants as regards the taking into account of financial difficulties in calculating the fine. Thus, according to the Commission, the applicants have not shown that they are facing significant financial difficulties comparable to those faced by SGL Carbon AG in those cases. In any event, the Commission submits that it is not required to take account of an undertaking’s financial losses in calculating a fine for an infringement of Article 81 EC, since recognition of such an obligation would have the effect of conferring an unfair competitive advantage on the undertakings least well adapted to the conditions of the market.

270    The Commission also claims, in that respect, that the applicants’ argument relating to the deterioration of their financial situation since the adoption of the contested decision, as supported by the consulting firm’s report which they produced, is irrelevant for the purposes of determining whether section 35 of the Guidelines was disregarded in the present case during the administrative procedure. The Commission submits that the report in question relates to developments after the adoption of the decision which, by definition, it could not take into account when drafting the decision. Accordingly, such elements cannot be taken into account when assessing the legality of the contested decision.

271    As regards the applicants’ argument that they have put in place competition law compliance programmes, it is settled case-law that the Commission is not required to take such programmes into account when setting the amount of a fine.

272    As for the alleged need to take into account the Flat Glass decision in calculating the ceiling of the fine referred to in Article 23(2) of Regulation No 1/2003, the Commission maintains that it follows, in particular, from Case T‑68/04 SGL Carbon v Commission [2008] ECR II‑2511, paragraph 132, that that amount is not to be calculated by adding various fines imposed on the same undertaking, for separate infringements of Article 81 EC, since that upper limit applies for each infringement of that provision. The applicants have not shown in the present case that the cartels referred to in the Flat Glass decision and in the contested decision constitute one and the same infringement. In any event, those two decisions were adopted in different financial years, so that it would be incorrect to consider that the applicants’ combined fines under the two decisions corresponded to 16% of their turnover in the same financial year.

b)     Findings of the Court

273    First of all, the applicants’ argument based on the consulting firm’s report produced in annex to their letter sent to the Court on 18 January 2013 must be rejected.

274    It can be seen from that report that its aim was to compare the impact of the fine imposed on the applicants with that of the fines imposed on AGC (Splintex) and on Saint-Gobain and that it took into account, in that respect, developments after the closure of the written procedure. It follows that that report concerns the development of the applicants’ financial situation after the adoption of the contested decision and a comparison of that situation with that of two of their main competitors which participated in the cartel at issue.

275    According to settled case-law, in the context of the review carried out under Article 263 TFEU, elements arising after the date of the adoption of an EU measure cannot be taken into account when assessing the legality of that measure, since the legality of an EU measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted (Case T‑329/01 Archer Daniels Midland v Commission [2006] ECR II‑3255, paragraph 377; see, to that effect, Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 40).

276    Next, it must be noted that each time the Commission decides to impose fines pursuant to EU competition law, it must observe general principles of law, which include the principles of equal treatment and of proportionality as interpreted by the EU judicature (Schindler Holding and Others v Commission, paragraph 247 above, paragraph 105).

277    In the procedures initiated by the Commission in order to penalise infringements of the EU competition rules, the application of the principle of proportionality 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 in Case T‑30/05 Prym and Prym Consumer v Commission, not published in the ECR, paragraphs 223 and 224 and the case-law cited). The Commission must therefore set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and apply those factors in a way which is consistent and objectively justified (Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraphs 226 to 228, and Amann & Söhne and Cousin Filterie v Commission, paragraph 125 above, paragraph 171).

278    The various arguments put forward by the applicants in the context of the present plea in law must be examined in the light of those principles.

279    As regards, in the first place, the argument that the disproportionate nature of the fine imposed on the applicants is shown by the fact that the fine is close to, or even exceeds, the limit set out in the second subparagraph of Article 23(2) of Regulation No 1/2003, which, according to the applicants, is not intended to be reached too often, it must be pointed out that, in accordance with settled case-law, the maximum limit laid down in that provision has a distinct and autonomous objective by comparison with the criteria of gravity and duration of the infringement, namely to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will not be able to pay (Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraphs 280 and 282; judgment of 8 July 2008 in Case T‑52/03 Knauf Gips v Commission, not published in the ECR, paragraph 452, and Case T‑11/06 Romana Tabacchi v Commission [2011] ECR II‑6681, paragraph 257).

280    That limit, laid down by the legislature, is uniformly applicable to all undertakings and arrived at according to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate. The only possible consequence of such a limit is that the amount of the fine calculated on the basis of the criteria of gravity and duration of the infringement will be reduced to the maximum permitted level where it exceeds that level. Its application implies that the undertaking concerned will not pay the full amount of the fine which in principle would be payable if it were assessed on the basis of those criteria (Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraphs 281 and 283; Knauf Gips v Commission, paragraph 279 above, paragraph 454; and Romana Tabacchi v Commission, paragraph 279 above, paragraph 257).

281    It follows that, without prejudice to the analysis of the sixth plea in law below, the mere fact that the fine imposed on the applicants is close to or equal to that limit, unlike those imposed on other addressees of the contested decision, is irrelevant to the assessment of whether or not that fine is proportionate (see, by analogy, judgment of 16 September 2013 in Joined Cases T‑373/10, T‑374/10, T‑382/10 and T‑402/10 Villeroy & Boch and Others v Commission, currently under appeal, paragraph 393).

282    In the second place, it is necessary to reject the applicants’ arguments that the fine is disproportionate because the infringement had only a limited economic impact due to the low level of implementation of that infringement, the fact that the applicants’ infringing conduct did not continue for a particularly long time and the fact that the infringement did not involve an exceptionally large market.

283    In that regard, it must first of all be pointed out that the mechanisms described by the Commission in the contested decision, consisting in the concerted allocation of contracts concerning the supply of carglass in the EEA, through the coordination of pricing policies and customer supply strategies, the objective of which was to maintain an overall stability of the various participants’ market shares, are among the most serious infringements of the competition rules, in that their aim is quite simply to eliminate competition between the undertakings which implement them. Thus, in accordance with settled case-law, cartels which — as in the present case — include the fixing of prices are among the most serious infringements of EU competition law and may, by reason of that fact alone, be classified as very serious (Joined Cases T‑202/98, T‑204/98 and T‑207/98 Tate & Lyle and Others v Commission [2001] ECR II‑2035, paragraph 103, and Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 262).

284    It follows that the Commission rightly considered that the concerted agreements and practices at issue constituted, by their very nature, a very serious infringement, falling within the scope of the category of infringements referred to in point 23 of the 2006 Guidelines and justifying, in accordance with that point, the application of a proportion of sales connected directly or indirectly to the infringement of between 15 and 30% for the purpose of calculating the amount of the fine.

285    Next, it is undisputed that the combined relevant market shares of the undertakings that participated in the infringement was approximately 60% on average throughout the infringement period and that, as emphasised in paragraph 225 above, the agreements and concerted practices at issue gradually touched upon almost all of the major car manufacturers within the EEA. Account must also be taken of the fact that the market for the sale of carglass to original equipment manufacturers within the EEA is particularly large, since it generates an annual turnover of several billion euros, and the fact that the applicants were one of the major players on that market. In addition, it can be seen from recital 677 of the contested decision that the Commission, in its assessment of the seriousness of the infringement, took into account the fact that the car manufacturers enjoyed bargaining power which enabled them to devise counterstrategies to the collusive practices of the cartel participants and the fact that those counterstrategies had allowed them to thwart some decisions taken in the context of that cartel concerning the allocation of supply contracts. In particular, that is the type of situation which led the cartel participants to grant each other compensation, in accordance with the mechanism described in paragraph 73 above.

286    In the light of the above considerations, it must be held that the Commission did not disregard point 23 of the 2006 Guidelines and, more generally, the limits of its margin of discretion, in setting the proportion of sales connected directly or indirectly with the infringement at 16% for the purposes of calculating the fine imposed on the applicants.

287    That conclusion cannot be called into question by the applicants’ argument that the cartel was not extensively implemented.

288    The Court notes that, according to settled case-law, for the purposes of application of Article 81(1) EC, there is no need to take account of the actual effects of an agreement when it has as its object the prevention, restriction or distortion of competition within the common market. Accordingly, the demonstration of actual anti-competitive effects is not required where the anti-competitive object of the alleged conduct has been established (see, to that effect, Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299; Case C‑272/09 P KME Germany and Others v Commission, paragraph 203 above, paragraph 65; and Case C‑389/10 P KME Germany and Others v Commission, paragraph 203 above, paragraph 75). As emphasised in paragraph 120 above, that applies in particular in the case, as in this instance, of obvious restrictions of competition such as price-fixing and market-sharing.

289    It is pursuant to that principle that the Commission, in point 23 of the 2006 Guidelines, stated that 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 and must therefore be heavily fined, the proportion of the value of sales taken into account for such infringements generally being set at the higher end of the scale. It follows that, in such cases, the Commission is entitled to determine the amount of the fine having regard solely to the nature of the infringement, and does not need to take into account the potential lack of implementation of all or part of the agreements at issue (see, to that effect, judgment of 29 June 2012 in Case T‑370/09 GDF Suez v Commission, ECR, paragraphs 420 to 423). Factors relating to the intentional aspect may therefore be more significant than those relating to the effects of the infringement on the market, particularly where they relate to infringements which, as in the present case, are intrinsically serious since they concern price fixing and market sharing (see judgment of 18 July 2013 in Case C‑501/11 P Schindler Holding and Others v Commission, ECR, paragraph 134 and the case-law cited).

290    The applicants’ argument concerning the proportions of sales connected directly or indirectly to the infringement which were applied by the Commission in the Flat Glass and the Professional Videotapes decisions must also be rejected.

291    It must be noted that, in accordance with settled case-law, the Commission has a margin of discretion in setting the amount of fines, in order that it may channel the conduct of undertakings towards observance of the competition rules (Martinelli v Commission, paragraph 202 above, paragraph 59, and BPB v Commission, paragraph 80 above, paragraph 335). It follows that the Commission’s previous decision-making practice does not in itself serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003, as applied in the light of the guidelines, and that the Commission is not bound by assessments which it has made in the past (see, to that effect, Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraphs 209 to 213; Case C‑510/06 P Archer Daniels Midland v Commission [2009] ECR I‑1843, paragraph 82; and Erste Group Bank and Others v Commission, paragraph 236 above, paragraph 123). Accordingly, the mere fact that the Commission has found, in one or several previous decisions, that a type of conduct justified a fine of a certain amount in no way means that it is obliged to make the same assessment in a subsequent decision (see, to that effect, Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 357, and Heineken Nederland and Heineken v Commission, paragraph 82 above, paragraph 401).

292    In view of that case-law, it is also irrelevant, for the purposes of assessing the proportionality of the contested fine, that other conduct in breach of Article 81 EC, penalised by the Commission in previous decisions, may have continued over periods longer than that of the applicants’ participation in the cartel in question.

293    Moreover, given the rejection of the second plea in law (see paragraphs 150 to 183 above), it must be regarded as established that the applicants participated in the cartel at issue for a period of approximately four and a half years. That is the basis on which the Commission, in the contested decision, applied the rule of calculation set out in point 24 of the 2006 Guidelines, by multiplying by 4.5 the amount determined on the basis of the value of sales made by the applicants and connected directly or indirectly to the infringement.

294    The fact that a fine imposed on an undertaking is directly proportionate to the duration of its participation in an infringement of Article 81 EC cannot be criticised in itself as regards the requirement of proportionality and the principle that the penalty must be specific to the offender. First of all, in general, the longer the infringement, the more illegitimate profit the participants in that infringement will derive from it. Thus, in the present case, it was only after having examined the effects on the market of the concerted practices implemented initially that adjustments and corrective measures appeared necessary, in order to achieve the objective of stabilising the participants’ market shares. Moreover, the cartel at issue affected only gradually all of the market in the EEA, since the supply contracts with car manufacturers on which the collusive practices were based had a period of validity of several years. Furthermore, as can be seen from point 24 of the 2006 Guidelines, the method of calculation set out in that point contributes to individualising the penalty applied to each of the undertakings whose participation in the single and continuous infringement has been established, by taking into account any differences in the duration of their participation in the cartel.

295    The applicants’ submission that the fine in question is one of the largest ever imposed by the Commission on a participant in a cartel also cannot be taken into account. Undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines (Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraph 228). That is also the case where the increase of the level of fines results from the application, in particular cases, of rules of conduct of general application, such as the 2006 Guidelines (Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraphs 229 and 230, and Archer Daniels Midland v Commission, paragraph 291 above, paragraph 59).

296    In the third place, it is necessary to reject the complaint that the amount of the fine imposed on the applicants in the present case was set without taking into account the fact that a fine of EUR 140 million had already been imposed on the applicants in the Flat Glass decision and that, therefore, the combined amount of those two fines exceeds the ceiling of the fine laid down in Article 23(2) of Regulation No 1/2003.

297    It is undisputed that the Flat Glass decision and the contested decision were intended to penalise different infringements of competition law, the existence of different product markets, even if they be neighbouring markets, constituting a relevant criterion when assessing the scope of infringements of Article 81 EC, and accordingly, determining whether those infringements are separate (see, to that effect, judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraphs 118 to 124 and 377, and Jungbunzlauer v Commission, paragraph 277 above, paragraphs 309 to 314).

298    It is clear from the wording of Article 23 of Regulation No 1/2003 that the ceiling of 10% of turnover only applies to fines imposed for infringements of Articles 81 EC and 82 EC and that it applies to each separate infringement of those articles. In any event, the Commission rightly notes that the amounts of the fines imposed on the applicants in the present case and in the Flat Glass decision cannot be combined in order to assess whether that limit of 10% has been exceeded. Article 23(2) of Regulation No 1/2003 refers, in that respect, to the ‘total turnover in the … business year [preceding]’ the adoption of the decision. In the present case, the decisions in question were adopted in different business years.

299    In the fourth place, it is also necessary to reject the applicants’ argument that the Commission could not include in the fine imposed on them an entry fee of 16% without taking into account the deterrent effect already entailed by the fine imposed on them in the Flat Glass decision shortly before the adoption of the contested decision.

300    In that respect, it must be noted that paragraph 25 of the 2006 Guidelines, which provides for the inclusion of an entry fee in the basic amount of the fine, states as follows:

‘[I]rrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15 … and 25% of the value of sales … in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements. … For the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22 [namely, 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].’

301    The applicants submit, in essence, that the Commission could not include such an entry fee in the fine imposed on them, as a deterrent, since it had recently, in the Flat Glass decision, imposed a fine on them for infringement of Article 81 EC which included an entry fee of 17% and that the Flat Glass decision was adopted after their infringing conduct penalised in the contested decision had come to an end.

302    However, the task of supervision entrusted to the Commission by EU law, in the field of competition law, includes the duty to investigate and punish individual infringements, as well as the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. It follows that the Commission must ensure that fines have a deterrent effect (Joined Cases T‑456/05 and T‑457/05 Gütermann and Zwicky v Commission [2010] ECR II‑1443, paragraph 79, and GDF Suez v Commission, paragraph 289 above, paragraph 382).

303    Thus, the deterrent effect of the fine is not designed solely to deter the undertaking in question from repeating the infringement (specific deterrence). The Commission has the power to determine the level of fines with a view to reinforcing their deterrent effect in general, especially where infringements of a given type are still relatively frequent or are regarded as serious (general deterrence) (see, to that effect, Tate & Lyle and Others v Commission, paragraph 283 above, paragraph 134, and Total Raffinage Marketing v Commission, paragraph 212 above, paragraph 460).

304    In view of that twofold deterrent purpose of the fine, the applicants cannot successfully maintain that the fine recently imposed on them in the case that gave rise to the Flat Glass decision, for an infringement that was partly concomitant with the infringement at issue in the present proceedings, had already sufficiently deterred them from committing any further serious infringements of Article 81 EC, with the result that it was not necessary to include a new entry fee in the fine imposed on them in respect of the infringement at issue in the present proceedings. That circumstance is irrelevant from the perspective of the general deterrence objective pursued by the fine at issue.

305    The Court also notes that a different interpretation would have the effect, in the present case, of reducing the fine imposed on the applicants in respect of their participation in the infringement referred to in the contested decision, on the sole ground that they were already penalised for a different infringement of Article 81 EC. Such a reduction would lead to a paradoxical situation in which an increase by an undertaking in the number of cartels in which it participated in the course of the same period would result in the marginal cost of each penalty gradually diminishing (see, to that effect, judgment of 7 June 2011 in Case T‑206/06 Total and Elf Aquitaine v Commission, not published in the ECR, paragraph 298). That would be tantamount to granting the applicants an incentive to infringe the EU competition rules and, for that reason, would be liable to undermine the effectiveness of the competitive discipline imposed by Article 81(1) EC.

306    In the fifth place, the reference made by the applicants to the reduction of 33% of the fine granted by the Commission to one of the addressees of the Speciality Graphites and the Carbon and graphite products decisions, is not relevant in the present case.

307    First, in accordance with settled case-law, referred to in paragraph 291 above, the Commission’s previous decision-making practice does not serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003, as applied in the light of the guidelines, and the Commission is not bound by assessments which it has made in the past. Decisions in other cases can give only an indication for the purpose of determining whether there might be discrimination (Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraphs 201 and 205, and Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 60).

308    In addition, as the Commission rightly points out, it is not required, when determining the amount of the fine, to take into account the poor financial situation of the undertaking concerned, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to the undertakings least well adapted to the market conditions (Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 105, see Case T‑62/02 Union Pigments v Commission [2005] ECR II‑5057, paragraph 175 and the case-law cited). It is irrelevant, in that regard, that those financial difficulties arise in the context of a crisis affecting the markets on which the undertaking concerned is active. In the first place, such a crisis has, in principle, a greater impact on the undertakings least well adapted to the market conditions. In the second place, any obligation for the Commission to take into account every situation of economic crisis in order to reduce the fine imposed in respect of infringements of Article 81(1) EC could have a significant impact on the effectiveness of the prohibition laid down in that provisions since it is often the case that cartels come into being when a sector is experiencing difficulties (see, to that effect, Case T‑127/04 KME Germany and Others v Commission [2009] ECR II‑1167, paragraph 122). In the third place, factors such as a continuing decline in demand or the overcapacity that may result from such a decline, even were they established, are risks inherent in any economic activity which, as such, do not denote an exceptional structural or economic situation capable of being taken into account in determining the amount of the fine (see, to that effect, Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 414).

309    In any event, the Commission rightly submits that the situation of SGL Carbon in the context of the cases that gave rise to the Speciality Graphites and the Carbon and graphite products decisions cannot be compared with the situation of the applicants in the present case.

310    In that case, the Commission had reduced by 33% the fine imposed on SGL Carbon because of its serious financial difficulties and the fact that, a short time previously, two fines had been imposed on it for infringements of competition law committed at the same time (Carbone-Lorraine v Commission, paragraph 206 above, paragraphs 22 and 315). While it is not in dispute that the automobile industry has been in crisis for several years and that the applicants’ financial situation has deteriorated since the adoption of the contested decision, as attested to by the consulting firm’s report produced in the present judicial proceedings, the applicants have not demonstrated that, at the time the decision was adopted, they were facing financial difficulties of a gravity comparable to that of the financial difficulties faced by SGL Carbon in 2002 and 2003.

311    As regards, in the sixth place, the complaint alleging the failure to take into account the competition law compliance programme put in place by the applicants, it must be pointed out that the applicants have not provided any specific explanation of the content of that programme nor even sought to demonstrate the existence of that programme by means of documentary evidence. In addition, even were the existence of such a programme established, it has been held that although the measures included in that type of programme may be desirable in order to prevent further infringements of EU competition law from being committed in the future, they do not alter the fact that infringements have been committed. Thus, the adoption of a compliance programme by the undertaking concerned does not oblige the Commission to grant a reduction in the fine on that account (BASF and UCB v Commission, paragraph 150 above, paragraph 52; Case T‑38/07 Shell Petroleum and Others v Commission [2011] ECR II‑4383, paragraph 96; and Schindler Holding and Others v Commission, paragraph 247 above, paragraph 282).

312    In view of all the foregoing, it must be concluded that the fourth plea in law is unfounded and must be rejected.

D –  The fifth plea in law, alleging an error in the calculation of the fine owing to the lesser gravity of the applicants’ conduct by comparison with the other undertakings which participated in the cartel and breach of the principle of equal treatment

a)     Arguments of the parties

313    By their fifth plea in law, the applicants claim that the Commission overstated the individual role that they played in the cartel and, accordingly, erred in the assessment of their conduct. The applicants assert that they did not materially participate in any of the bilateral contacts between AGC (Splintex) and Saint-Gobain, at least until the second half of 2000 and from the end of 2001. In addition, the applicants played at most a minor role between the second half of 2000 and the end of 2001.

314    The applicants submit, in that regard, that the Commission concluded that they had participated in a number of meetings and assumed that they had disclosed sensitive information at those meetings, but without adducing proof that they had done so. The handwritten notes and the testimony of the leniency applicant to which the Commission refers are insufficient in that respect, since the general structure of the cartel as revealed by those notes seems to be mainly a series of bilateral contacts between AGC (Splintex) and Saint-Gobain. In any event, the applicants participated in fewer contacts and meetings than those two undertakings. The applicants’ limited role in the infringement is also shown by the fact that the number of their employees who participated in the contacts and meetings at issue was smaller than the number of employees of AGC (Splintex) and of Saint-Gobain that participated in those contacts and meetings.

315    In the applicants’ submission, the lesser gravity of their conduct ought to have been taken into account in the calculation of the fine imposed on them. Thus, the EU judicature has recognised that the limited role played by an undertaking may constitute a mitigating circumstance justifying a reduction of the fine.

316    The applicants also take issue with the Commission for having imposed a disproportionately high fine by comparison with the fines imposed on the other participants in the cartel and having thus breached the principle of equal treatment. The applicants maintain that they participated in the infringement for a significantly shorter period than the other addressees of the contested decision and, in addition, that their role in the infringement was more limited than the roles played by those undertakings. In addition, the applicants form a much smaller undertaking and have less diversified activities than Saint-Gobain and AGC (Splintex). The method of calculating the fine applied by the Commission in the present case therefore resulted in the applicants receiving a fine which represents a significantly higher proportion of their turnover than the proportion of turnover represented by the fines imposed on Saint-Gobain and AGC (Splintex), respectively. That contrast is even more notable if account is taken of the cumulative effect of the present fine and the fine imposed on the applicants in the ‘Flat Glass’ decision.

317    Moreover, as noted in paragraph 261 above, in a letter of 18 January 2013, the applicants sent to the Court a report prepared by a consulting firm, showing their present financial situation and that of the group of which they form part, as well as a comparison with the financial situation of Saint-Gobain and Asahi. That report shows the more significant harmful effects on the applicants of the fine imposed on them by comparison with the effects on those other undertakings of the fines they received.

318    The Commission does not accept those criticisms. In the first place, it disputes in part the admissibility of the present plea, since, in its submission, the application does not sufficiently explain the complaints on the basis of which the applicants dispute the finding that they participated in certain meetings or certain contacts in the context of the cartel.

319    In the second place, the Commission contends that it has established the applicants’ participation in all the meetings in respect of which such participation was found in the contested decision, on the basis of the documents discovered at the premises of certain addressees of the contested decision as well as the statements made by the leniency applicant. Those contacts and meetings represent around 80% of the trilateral meetings and contacts identified in the contested decision and the applicants acknowledge having participated in the vast majority of them. In those circumstances, according to the Commission, the applicants’ argument that they played only a minor role in the cartel cannot be accepted.

320    In the third place, the Commission submits that even if the applicants did not participate in some of the meetings or contacts in which it was found to have participated in the contested decision, that would have no effect on the gravity of their anti-competitive behaviour on the carglass market. The applicants have admitted having taken part in the bulk of the contacts in respect of which their participation was established in the contested decision, in particular the trilateral contacts between mid-2000 and the end of 2001. The Commission refers, on that point, to the case-law according to which the establishment of an undertaking’s full participation in a single and continuous infringement does not require proof that the undertaking participated in all or even the majority of cartel meetings, provided that it knew or must have known that the collusion in which it participated was part of an overall plan and that the overall plan contained all the constituent elements of the cartel. The degree of the applicants’ participation in the meetings of the club is, moreover and in any event, at least comparable to that of the other members of the club.

321    In the fourth place, the Commission disputes the applicants’ argument that they ought to have benefited from mitigating circumstances in the present case. It claims that when it adopted the 2006 Guidelines it changed its policy on mitigating circumstances. The ‘follow-my-leader’ approach taken by an undertaking does not affect its participation in an infringement of Article 81 EC. In addition, non-implementation of a cartel now justifies the reduction of a fine, as a mitigating circumstance, only where effective competitive conduct is adopted by the undertaking in question, something which the applicants in the present case did not do. Thus, the mere fact that the applicants’ participation was for a shorter period does not justify a reduction of the fine imposed on them on the ground of alleged mitigating circumstances.

322    In any event, the Commission maintains that the applicants did not play a passive role in the cartel, within the meaning of the case-law, and that it is at least established that the cartel was indeed implemented at certain times. The importance of the applicants’ participation in the cartel is borne out by the fact that they are one of the largest carglass suppliers in the world, with market shares of between 29 and 35% during the infringement period.

323    Lastly, in the fifth place, the Commission denies having disregarded the principle of equal treatment in the present case. It observes that it correctly assessed the applicants’ role in the global cartel, and maintains that the higher proportion of total turnover which the fine imposed on the applicants represents, by comparison with the other participants in the cartel, is attributable to the fact that the applicants mainly supply the products affected by the cartel at issue.

324    The Commission adds that, according to settled case-law, confirmed, in particular, by the Court in Case T‑116/04 Wieland-Werke v Commission [2009] ECR II‑1087, the fact that the fines imposed under Regulation No 1/2003 do not reflect distinctions between the undertakings in terms of their overall turnover does not infringe the principles of proportionality and equal treatment. Thus, the proportion of an undertaking’s overall turnover represented by the fine cannot suffice to establish that the fine is disproportionate or that it constitutes a breach of the principle of equal treatment.

325    Lastly, the 2006 Guidelines do not mention the possibility of reducing the fine when the undertaking concerned is small, as the 10% ceiling laid down in Article 23(2) of Regulation No 1/2003 is already intended to take account, when the amount of the fine is determined, of the size of an undertaking to which a decision imposing a penalty pursuant to Article 81 EC is addressed. It follows from settled case-law, moreover, first, that the Commission is not obliged to take the financial difficulties of an undertaking into account when it imposes a fine on that undertaking pursuant to Article 81 EC and, secondly, that the argument that large undertakings should receive higher fines, merely because of their economic power, cannot succeed.

b)     Findings of the Court

326    By their fifth plea in law, the applicants essentially deny that the gravity of their conduct in the context of the cartel was comparable to that of Saint-Gobain and of AGC (Splintex). According to the applicants, that lesser gravity is due, in essence, to their participation in fewer meetings and contacts by comparison with Saint-Gobain and AGC (Splintex). As a preliminary point, however, it is necessary to examine the plea of inadmissibility raised by the Commission as regards the arguments put forward by the applicants in annexes A.32 and A.34 of their application.

 The admissibility of the line of argument put forward by the applicants in certain annexes to their application

327    The Commission submits that annexes A.32 and A.34 to the application — in which the applicants develop a line of argument contesting the finding that they participated in certain meetings or contacts with competing undertakings — are not admissible since that line of argument was not presented in the application itself.

328    In that respect, it must be noted that, according to settled case-law, the annexes cannot serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application (Case T‑340/03 France Télécom v Commission [2007] ECR II‑107, paragraph 167 and the case-law cited).

329    In the present case, the annexes to the application referred to in paragraph 327 above supplement or support on specific points the arguments contained in paragraphs 76 to 80 of the application and it is possible for the Court to determine precisely the elements in those annexes that supplement or support those arguments. In those circumstances, there is therefore nothing to prevent the Court from taking into account annexes A.32 and A.34 to the application in the analysis of the present plea in law, with the result that the plea of inadmissibility raised by the Commission must be rejected.

 The applicants’ participation in the meetings and contacts of the cartel

330    As regards the substance, it is necessary first of all to recall the conclusion in paragraph 167 above, according to which, while the Commission has not established that the applicants participated in all of the collusive meetings and contacts to which it refers in the contested decision as regards the period between 10 March 1998 and 15 January 1999, it is, however, clear from the file that the applicants took part in various contacts and meetings during that period in which they exchanged commercially sensitive information with competitors, concerning, inter alia, prices and production volumes. The evidence examined in paragraphs 157 to 166 above also supports the Commission’s view that the applicants, during that period, participated in discussions which had as their object the allocation of supplies of carglass intended for certain models of vehicles.

331    As regards the infringement period which began on 15 January 1999, it must be emphasised that the applicants do not deny participating in 23 meetings referred to in table 2 in recital 98 of the contested decision and in 10 other contacts referred to in table 3 in the same recital. However, the applicants deny participating in six meetings referred to in table 2 and in five ‘other contacts’ referred to in table 3.

–       The meeting held in Paris in mid-2000 concerning the supply of carglass for the [confidential]

332    As regards, first of all, the meeting held in Paris in mid-2000 concerning the manufacturer [confidential], recitals 247 to 249 of the contested decision indicate that employees of the applicants, of AGC (Splintex) and of Saint-Gobain participated in that meeting and that it concerned the allocation of carglass supplies for the [confidential]. According to the applicants, the fact that the notes taken by an employee of the leniency applicant on that occasion mention that that model was ‘cover[ed] by [Pilkington]’ is not sufficient to establish that the applicants participated in that meeting or that they agreed to ‘cover’ [confidential], by quoting a higher price, in order to ensure that the latter undertaking obtained the carglass supply contract for that model.

333    The Commission emphasises that those handwritten notes must be read in the light of a passage in the statements made by the leniency applicant on 28 February 2008, in which the latter indicated that the applicants had agreed to quote a higher price than that of the leniency applicant as regards the model in question. The applicants nevertheless take the view that the passage in question is merely an attempted explanation based on the wording of the notes in question and that, in view of the vague nature of those notes on that point, the statements made by the leniency applicant are not credible. The applicants emphasise, in that respect, that the leniency applicant was not able to indicate the date and location of that meeting.

334    The Court considers, however, that, without it even being necessary to rule on whether employees of the applicants were present at that meeting, it can be seen from the very wording of the notes taken by an employee of the leniency applicant on that occasion, as well as the leniency applicant’s statements on those notes, that the applicants, at the very least, took part in the discussions relating to the award of the supply contract at issue and that they accepted, on that occasion, to ‘cover’ the leniency applicant’s offer by quoting a higher price.

335    That conclusion cannot be called into question by the applicants’ doubts as regards the credibility of the leniency applicant’s statements referred to by the Commission. First, as the Commission rightly emphasised, the passages from those statements to which it refers provide a consistent explanation of the extract from the notes taken by the employee of the leniency applicant as regards the supply of carglass for the [confidential]. It must therefore be considered that that passage is supported by other evidence (see, to that effect, JFE Engineering and Others v Commission, paragraph 82 above, paragraph 219, and Groupe Danone v Commission, paragraph 308 above, paragraph 285). Secondly, that explanation is particularly reliable since it ran counter to the leniency applicant’s interests; its contents were liable to confirm the leniency applicant’s participation in a specific collusion with the object of ensuring that a supply contract was awarded to it (see, by analogy, JFE Engineering and Others v Commission, paragraph 82 above, paragraphs 211 and 212, and judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission, not published in the ECR, paragraph 59).

–       The meeting held on 5 July 2000 concerning the supply of carglass for certain models of [confidential] and of [confidential]

336    According to recital 230 of the contested decision, the meeting held on 5 July 2000 concerning the carglass for certain models of [confidential] and of [confidential] took place at either a hotel near the Charles de Gaulle Airport in Paris or at the premises of a trade association in Rome. In the course of that meeting, the applicants, Saint-Gobain and AGC (Splintex) had discussions on the ‘covering’ of AGC (Splintex) as regards a supply contract relating to the [confidential]. On that occasion, those competitors also exchanged price information for the [confidential] model and envisaged sharing between each other the supply of carglass for a series of other models of the manufacturer [confidential].

337    The applicants nevertheless claim that the Commission was not able to establish their participation in that meeting. In their submission, the oral statements of the leniency applicant are not sufficiently reliable given the fact that, first, it did not recall the location of that meeting and, secondly, it reported that meeting only at an advanced stage in the investigation procedure.

338    However, those arguments cannot be accepted.

339    The notes taken at the meeting of 5 July 2000 by an employee of the leniency applicant, when read in the light of the statements made by the leniency applicant, are sufficient to establish the applicants’ participation in that collusive contact. It is true that it cannot be established with certainty, on the basis of that evidence, that the applicants agreed to cover AGC (Splintex) with a view to the allocation to the latter of the carglass supply contract for the [confidential], since the references to the applicants on that point in the notes may be interpreted as a mere declaration of intent on the part of AGC (Splintex). The leniency applicant nevertheless confirmed in its statements that the table set out at the end of those notes reflected the allocation of contracts agreed between itself, Saint-Gobain and the applicants concerning various models of [confidential], on the basis of a collusion on prices. The reliability of that statement of the leniency applicant cannot be called into question on the ground that it could not identify with certainty the location of the meeting, since such a lapse of memory may be explained by the fact that the statement in question was made almost five years after the date of that meeting. The stage of the investigation procedure at which that statement was made is also irrelevant since that statement lacks neither precision nor consistency and it is supported by notes which are, in themselves, sufficiently clear.

340    It follows that the Commission was also entitled to find that the applicants had participated in a collusive contact on 5 July 2000.

–       The meeting held in late October or early November 2000 concerning certain models of [confidential]

341    According to recital 275 of the contested decision, another trilateral meeting was held in late October or early November 2000, at which employees of the applicants, of Saint-Gobain and of AGC (Splintex) exchanged prices in order to share the supply of carglass for the [confidential]. According to that recital, the applicants, at that meeting, obtained assurances from Saint-Gobain and AGC (Splintex) that they would ‘cover’ the applicants for the supply of quarterlights and rear windows for the [confidential], by quoting higher prices to that manufacturer.

342    The applicants do not deny that that meeting took place, but submit that it cannot be concluded from the notes taken by an employee of the leniency applicant either that they took part in it or, a fortiori, that they participated in the agreement that the Commission believed it identified in that meeting. Moreover, the leniency applicant’s statements are vague on that point.

343    In that respect, it must first of all be pointed out that the notes in question indeed contain a list of carglass pieces relating to the model [confidential] as well as commercially sensitive information such as prices and production costs as regards the applicants, Saint-Gobain and AGC (Splintex). Next, contrary to what is claimed by the applicants, the leniency applicant’s statements provide a precise and consistent explanation of the meaning of those notes. According to that explanation, it was decided at that meeting that the supply of quarterlights and rear windows for the [confidential] would be allocated to the applicants, Saint-Gobain and AGC (Splintex) having accepted to ‘cover’ them in that respect.

344    It follows that the applicant’s participation in the meeting held in late October or early November 2000 concerning certain models of [confidential], as well as the anti-competitive nature of that meeting, must be regarded as established.

–       The meeting of 1 November 2000 concerning certain models of [confidential]

345    As regards the meeting held in November 2000 concerning certain models of [confidential], the leniency applicant stated that the notes relating to that meeting, taken by one of its employees, showed, inter alia, a discussion between the big three carglass producers with a view to increasing the price of certain carglass pieces for the [confidential] model. According to recital 280 of the contested decision, it can be seen from those notes that an agreement had been reached between the competitors to apply uniform price increases of 4% for windscreens and side windows and of 3% for rear windows.

346    While those notes indeed seem to show the existence of a collusive contact, the Court nevertheless considers that the applicants’ participation in that meeting is not established. Unlike numerous other notes on which the Commission relies, the notes taken at that meeting contain no express reference to the applicants, and the Commission itself acknowledged in the contested decision that it could not be concluded with certainty that a representative of the applicants participated in that meeting.

347    Thus, it must be concluded that the leniency applicant’s statements regarding the applicants’ participation in the collusive contact on 1 November 2000 are not sufficiently supported by other evidence (see, to that effect, JFE Engineering and Others v Commission, paragraph 82 above, paragraph 219, and Groupe Danone v Commission, paragraph 308 above, paragraph 285).

–       The meeting that took place ‘some time prior to or around 13-14 December 2000’, concerning certain models of [confidential]

348    The meeting or the contact that took place ‘some time prior to or around 13-14 December 2000’, concerning certain models of [confidential] was, according to recital 295 of the contested decision, a trilateral contact between the applicants, Saint-Gobain and AGC (Splintex) which took the form of either a meeting in a hotel near Brussels Airport or a telephone call.

349    The applicants nevertheless claim that the notes taken by an employee of the leniency applicant produced by the Commission, even read in the light of the leniency applicant’s statements, do not prove that that meeting took place or, a fortiori, that they participated in it.

350    However, that argument cannot be accepted.

351    First of all, the notes taken by an employee of the leniency applicant, dated ‘13-14 December 2000’, contain an express reference to the applicants. The applicants do not contest, in that respect, that the codename ‘Y’ that appears in those notes refers to them. Next, the leniency applicant confirmed that the big three producers of carglass had participated in that meeting or in that contact and that discussions of a collusive nature had taken place on that occasion, concerning the [confidential]. According to those same statements, those producers also exchanged sensitive information at that meeting concerning the costs of production of carglass pieces for the [confidential]. Although the notes taken by the employee of the leniency applicant at that meeting or at that contact are indeed rather brief and limited in detail, their contents appear, having regard to the principles referred to in paragraph 83 above, sufficiently clear when read in the light of the leniency applicant’s statements.

352    As the Commission emphasised, the precautions taken by the leniency applicant in making those statements, for example by using expressions such as ‘it is believed that’ or by indicating that the notes could relate to either a meeting in a hotel at Brussels Airport or telephone contacts, cannot, by itself, alter their probative value. Such precautions may be explained by the leniency applicant’s desire to formulate its statements carefully so as to avoid the risk that any inaccuracies might undermine its chances of obtaining a reduction of the fine. Moreover, the fact that an employee of the leniency applicant could not recall precisely the location of that meeting or contact is not decisive, given the significant number of meetings and contracts that took place in the context of the cartel, the fact that, when the leniency applicant made its statements to the Commission, several years had passed since the meeting or contact in question and, lastly, the level of precision of those statements as regards the nature and the scope of the discussions that took place on that occasion.

353    In view of those various elements, it is established that the applicants participated in the collusive meeting or contact that took place ‘some time prior to or around 13-14 December 2000’, concerning certain models of [confidential].

–       The meeting or contact of 30 April 2002

354    As regards the trilateral meeting that allegedly took place in an airport on 30 April 2002, it must be pointed out that, contrary to what is indicated in recital 391 of the contested decision, that meeting, as can be seen from the leniency applicant’s statements, did not take place in Charles de Gaulle Airport in Paris, as the leniency applicant indicated that that meeting probably took place in a hotel at Brussels Airport. It is also clear from the contested decision that another contact took place on that day between Saint-Gobain and AGC (Splintex), during which, in particular, commercially sensitive information which had been communicated by the applicants to those undertakings was exchanged.

355    The applicants deny having participated in those contacts.

356    In that respect, it must first of all be noted that, as the applicants maintain, there is nothing to prove that they participated in the first of those two contacts which concerned the manufacturer [confidential]. First, the notes taken by an employee of the leniency applicant in that respect contain no reference to the applicants. Secondly, it can be seen from the leniency applicant’s statements that that contact was between the leniency applicant and Saint-Gobain only.

357    As regards the second contact, it can be seen from the notes taken by an employee of the leniency applicant and from the leniency applicant’s statements on those notes that the applicants, at the very least, participated in a collusive contact concerning the [confidential]. Thus, the leniency applicant’s statements indicate that a discussion indeed took place between the applicants, Saint-Gobain and AGC (Splintex) concerning the supply of carglass for those models and that that discussion concerned a division in equal parts of the supply of carglass for those models between Saint-Gobain and the applicants.

358    It must therefore be regarded as established that the applicants participated in the collusive contact of 30 April 2002, relating to the supply of carglass for the [confidential].

–       The contact that took place shortly before 23 June 2000 concerning the manufacturer [confidential]

359    According to recital 219 of the contested decision, a contact took place between an employee of the leniency applicant and an employee of the applicants on an unspecified date before 23 June 2000, during which the supply of carglass to the manufacturer [confidential] was discussed. Price information was exchanged, on that occasion, between those two competing undertakings, with a view to ‘covering’ each other as regards the [confidential]. The applicants also presented the market shares of the big three carglass producers as regards the manufacturer [confidential] for the period between 1998 and 2003, as well as their target market share for the [confidential].

360    The applicants maintain that neither the notes taken by an employee of the leniency applicant on that date nor the statements made by the leniency applicant in order to obtain leniency allow the conclusion that the applicants communicated to a competitor the information contained in those notes.

361    However, that argument cannot be accepted. As the Commission rightly points out, it is clear from the leniency applicant’s statements, supported in that respect by the notes taken by one of its employees, that an exchange of commercially sensitive information indeed took place shortly before 23 June 2000 and that the applicants took part in that exchange. First of all, the table set out at the bottom of the page of those notes includes a reference to the applicants alongside the indication of the years covered by that table. There is also another reference to the applicants in that same table, indicating their actual or estimated market shares. That presentation tends to support the explanation given by the leniency applicant, in its statements made to the Commission, according to which that table was drafted on the basis of information provided by the applicants themselves. Moreover, the notes in question refer to the aim expressed by the applicants of obtaining 22 and 44% respectively of the market shares for the [confidential]. It can also be seen from the leniency applicant’s explanations that the purpose of that exchange of information was, first, to organise the allocation of supply contracts relating to one or several models of the manufacturer [confidential] through the use of the ‘covering’ mechanism and, secondly, to achieve a more overall evaluation of the situation of the big three carglass producers in order to make adjustments, if necessary.

362    Accordingly, the Commission was entitled to find that the applicants participated in the contact that took place shortly before 23 June 2000 concerning the manufacturer [confidential].

–       The contacts that took place on 23 June and 17 July 2000 concerning the manufacturer [confidential]

363    According to recital 227 of the contested decision, employees of the applicants and of AGC (Splintex) were in contact on 23 June and 17 July 2000 concerning the manufacturer [confidential], particularly as regards the [confidential]. The applicants nevertheless maintain, in essence, that it cannot be inferred from the notes taken by an employee of the leniency applicant, produced by the Commission, and the leniency applicant’s statements in that regard that the applicants took part in that contact or, more generally, that they exchanged commercially sensitive information concerning that model.

364    However, the applicants’ argument in that respect cannot be accepted, in view of both the notes taken by an employee of the leniency applicant and the explanations provided in respect of those notes under the leniency programme. Thus, the leniency applicant gave a clear and precise explanation of the notes taken by one of its employees concerning the manufacturer [confidential] during the contacts that took place on 23 June and 17 July 2000. According to those statements, the table set out at the top of page 51 of those notes indicates the per-unit price envisaged by the leniency applicant and by Saint-Gobain for the various carglass pieces intended for the [confidential], as well as certain costs related to the supply of those pieces. According to the same statements, it was agreed that Saint-Gobain would not supply carglass pieces for that model and would therefore ‘cover’ the two other members of the club. That explanation is consistent with the above mentioned table, from which it can be seen that Saint-Gobain’s per-unit prices were higher than those of the leniency applicant for each of the carglass pieces for the [confidential]. Next, according to the leniency applicant, it was agreed that it would be ‘covered’ by the applicants as regards that model, with the exception of two carglass pieces, namely the quarterlights and the rear windows. As can be seen from the leniency applicant’s explanations, as well as from the observation at the bottom of the table in the notes taken by an employee of the leniency applicant, the undertakings that participated in the contact nevertheless envisaged the possibility that the applicants might not obtain the contract for the supply of quarterlights, in which case the applicants would receive compensation.

365    It follows that the evidence relied on by the Commission is sufficient to support its conclusion that the applicants participated in a collusive discussion concerning the [confidential] in contacts with AGC (Splintex) in June and July 2000.

–       The contact that took place in May 2001 concerning the [confidential]

366    According to recital 318 of the contested decision, in May 2001 representatives of the applicants and of the leniency applicant exchanged price information regarding the new [confidential]. The Commission relies, in particular, on a table provided by the leniency applicant containing a detailed overview of the prices quoted by the applicants for the supply and assembly of carglass for that model and comparing those prices with the target prices of the customer [confidential], owner of [confidential] at that time.

367    However, the applicants deny communicating such commercially sensitive information. In their view, it is more probable that the information concerning the prices it quoted to [confidential] were communicated to the leniency applicant by the car manufacturer itself.

368    In that regard, the Court notes, first of all, that it can be seen from the leniency applicant’s statements concerning the table in question that the latter was not in a position to confirm whether the information relating to the prices quoted by the applicants came from the applicants themselves. Thus, the leniency applicant indicated that the car manufacturer itself would sometimes provide detailed information on the quotes submitted by one of the carglass manufacturers.

369    However, it can be seen from another passage of those statements that, despite the uncertainty as to whether the applicants disclosed commercially sensitive information concerning the [confidential] in May 2001, the applicants had indeed communicated such information to AGC (Splintex) in October 2000.

370    Accordingly, it must be regarded as established that the applicants indeed communicated commercially sensitive information concerning the [confidential] to a competitor during the infringement period.

–       The contact that took place on 10 September 2001 concerning the [confidential]

371    According to recital 343 of the contested decision, the applicants and the leniency applicant exchanged price information concerning the [confidential], during a telephone contact on 10 September 2001. The applicants nevertheless claim that it has not been established that they participated in that contact, given the obscure nature of the notes taken by an employee of the leniency applicant on which the Commission relied in that regard.

372    As a preliminary point, it is necessary to reject the applicants’ argument that the timing of the events relating to the award of the supply contract for carglass for the [confidential] show the contradictory nature of the statements made on that subject by the leniency applicant. Without it even being necessary to verify the accuracy of the Commission’s assertion that the supply of carglass for a model is often subject to renegotiations and reallocations during the lifecycle of that model, it is sufficient to note that the applicants have not even attempted to substantiate their assertion that, in September 2001, the supply contract relating to the [confidential] had already been awarded.

373    As regards, next, the issue whether the applicants participated in the contact in question, it must first of all be pointed out that, despite its conciseness, the extract from the notes taken by an employee of the leniency applicant produced by the Commission contains an express reference to the applicants. In addition, that extract contains specific information on the prices of various carglass pieces intended for the [confidential]. As the Commission points out, the leniency applicant provided a precise and consistent explanation as regards those notes, by indicating that the applicants had communicated various pieces of sensitive information to them on 10 and 12 September 2001.

374    It follows that, in the light of the evidence adduced by the Commission, it must be regarded as established that the applicants participated in the contact that took place in September 2001 concerning the [confidential], which involved the exchange of commercially sensitive information.

–       The contact that took place on 6 November 2001 concerning the manufacturer [confidential]

375    According to recital 354 of the contested decision, a contact took place on 6 November 2001 between the leniency applicant and the applicants. Sensitive information concerning the prices of carglass for the new [confidential] was exchanged at that meeting. The applicants deny having communicated such sensitive information to the leniency applicant. In their submission, that information was communicated to the leniency applicant by [confidential], a car manufacturer that sought to pressure the leniency applicant into making a better offer than that of the applicants.

376    That argument cannot be accepted.

377    First of all, it must be observed that the notes taken by an employee of the leniency applicant on that occasion contain several references to the applicants, as the applicants themselves acknowledge. Those references are each accompanied, as regards the [confidential], by specific price information relating to various carglass pieces intended for that model. Moreover, the leniency applicant indicated, in its statements to the Commission, that the information in question had been communicated to it by the applicants.

378    That evidence tends to support the Commission’s view that the applicants participated in a contact with the leniency applicant on 6 December 2001, during which sensitive price information relating to the new [confidential] was exchanged.

–       Conclusion on the meetings and contacts examined in the context of the present plea in law

379    Having regard to the reasoning set out in paragraphs 332 to 378 above, it must be held that it is established that the applicants participated in most of the meetings and contacts in which it was found, in the contested decision, to have participated.

 The assessment of the individual gravity of the applicants’ conduct

380    The merits of the various complaints made by the applicants in support of their view that the Commission erred in its assessment of the gravity of their conduct by comparison to that of Saint-Gobain and of AGC (Splintex) must be assessed in the light of that conclusion.

381    As regards, first of all, the applicants’ complaint based on their allegedly passive role in the cartel, it must be noted that a passive role in the infringement implies that the undertaking will adopt a low profile, that is to say not actively participate in the creation of any anti-competitive agreements (see, to that effect, Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 167). One circumstance that may indicate the adoption by an undertaking of a passive role within a cartel is where the undertaking’s participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel (see, to that effect, Case T‑311/94 BPB de Eendracht v Commission [1998] ECR II‑1129, paragraph 343, and Cheil Jedang v Commission, cited above, paragraphs 168 and 181).

382    Nevertheless, only complete or virtually complete passivity may be taken into account as a mitigating factor, and that passivity must be proved by the party alleging it (see judgment of 6 March 2012 in Case T‑64/06 FLS Plast v Commission, not published in the ECR, under appeal, paragraph 127, and judgment of 6 March 2012 in Case T‑65/06 FLSmidth v Commission, not published in the ECR, paragraph 59 and the case-law cited).

383    In the present case, the Court notes that, in view of the reasoning set out in paragraphs 332 to 378 above and of the number of meetings and collusive contacts in which the applicants have not denied participating, the applicants did not play a merely passive role in the cartel, justifying a reduction of the basic amount of the fine as a mitigating factor.

384    In the first place, it is established that the applicants participated regularly in the anti-competitive meetings and contacts between the members of the club during the period between 10 March 1998 and 3 September 2002, with the result that their participation in the cartel was in no way sporadic (see, to that effect, judgment of 27 June 2012 in Case T‑445/07 Berning & Söhne, not published in the ECR, paragraph 219).

385    In the second place, the applicants do not deny either having been represented, in those meetings and contacts, by senior managers or large accounts managers, or having themselves organised several club meetings.

386    In the third place, it must be emphasised that, in Cheil Jedang v Commission, paragraph 381 above, cited by the applicants, the Court did not come to the conclusion that the undertaking in question had played a passive role during the infringement period solely because that undertaking had participated in only some of the meetings of the cartel. The Court also based its conclusion in that respect on the fact that the undertaking in question had not participated in the two most important meetings of the cartel, namely those in which a refined and definitive allocation of sales quotas had been agreed by the other producers and, moreover, on the fact that the undertaking in question had subsequently accepted small sales quotas (Cheil Jedang v Commission, paragraph 381 above, paragraphs 178 to 180; see also, to that effect, judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 208).

387    The facts of the present case differ in essential respects from those that gave rise to the judgment in Cheil Jedang v Commission, paragraph 381 above (paragraph 182). Thus, the applicants do not deny participating in the two meetings of the club held on 6 December 2001 and 10 July 2002, examined in recitals 113 and 114 of the contested decision. As noted in paragraphs 88 to 93 above, the applicants, Saint-Gobain and AGC (Splintex), in the course of those meetings, carried out an overall assessment of the operation of the cartel and the adaptations deemed necessary in order to pursue effectively their collusion on market shares. It is therefore established that the applicants participated in two of the most important meetings of the cartel, in which the overall objectives of the cartel and the means of implementing it were discussed and specified.

388    It thus follows from the reasoning set out in paragraphs 384 to 387 above that the applicants’ assertion that they played a merely passive role in the cartel must be rejected.

389    As regards the applicants’ argument that they did not implement the vast majority of decisions taken at the cartel meetings, it must be pointed out that, according to settled case-law, for the purposes of the application of Article 81(1) EC, there is no need to take account of the actual effects of an agreement when it has as its object the prevention, restriction or distortion of competition within the common market. Accordingly, the demonstration of actual anti-competitive effects is not required where the anti-competitive object of the alleged conduct has been established (see, to that effect, the case-law cited in paragraph 288 above).

390    Moreover, it can be seen from the third indent of point 29 of the 2006 Guidelines that the basic amount of the fine may be reduced by the Commission, on account of mitigating circumstances, where the undertaking concerned 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.

391    However, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question. In that context, the fact that an undertaking which has been proved to have participated in collusion on market-sharing with its competitors did not behave on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when determining the amount of the fine to be imposed (see, to that effect, Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraph 277 and the case-law cited, and Denki Kagaku Kogyo and Denka Chemicals v Commission, paragraph 204 above, paragraph 248).

392    In the present case, it must be noted that, in view of the findings in paragraphs 379, 384 and 387 above, the applicants have in no way demonstrated that their participation in the infringement was substantially limited and that, accordingly, they actually avoided applying the collusions in which they participated, by adopting competitive conduct in the market. It follows that, even if the applicants did not comply, in practice, with some decisions taken in the context of the cartel, their argument that they should have had the benefit of the mitigating circumstance referred to in the third indent of point 29 of the 2006 Guidelines cannot be accepted.

393    As regards the complaint alleging infringement of the principle of equal treatment, it should be noted, as a preliminary point, that that principle requires that comparable situations not be treated differently and different situations not be treated in the same way unless such treatment is objectively justified (see Case C‑106/01 Novartis Pharmaceuticals [2004] ECR I‑4403, paragraph 69 and the case-law cited).

394    However, that complaint cannot succeed.

395    As regards, in the first place, the allegedly more limited role of the applicants in the cartel, by comparison with that of Saint-Gobain and of AGC (Splintex), it is clear from the reasoning set out in paragraphs 381 to 392 above that the applicants cannot rely in the present case on any sort of passive role on their part, or an absence of implementation of agreements and concerted practices, capable of establishing that the gravity of their conduct in the cartel was less than that of other participating undertakings and that they were therefore entitled to a reduction of the fine on account of mitigating circumstances. In addition, in accordance with point 24 of the 2006 Guidelines, the variations in the respective duration of participation of the various addressees of the contested decision were duly taken into account by the Commission when calculating the amount of the fines imposed on each of them, through the application of a multiplier proportionate to the number of years of participation of each of them in the infringement.

396    As regards, in the second place, the proportion of the applicants’ overall turnover represented by the fine imposed on them, which is allegedly much larger than that represented by the fines imposed on Saint-Gobain and on AGC (Splintex), it must be pointed out that, according to settled case-law, the gravity of infringements is assessed in the light of numerous factors, in respect of which the Commission has a margin of discretion, no binding or exhaustive list of criteria to be taken into account in that regard having been drawn up (see Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 129 and the case-law cited).

397    Accordingly, the Commission is not required, when determining fines, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines reflect any distinction between the undertakings concerned in terms of their overall turnover (Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraph 312; see Mannesmannröhren-Werke v Commission, paragraph 391 above, paragraph 247 and the case-law cited; see, to that effect, Dalmine v Commission, paragraph 396 above, paragraphs 141 to 144).

398    Thus, the fact that the method of calculation set out in the 2006 Guidelines is not based on the overall turnover of the undertakings concerned and therefore allows disparities to appear between the undertakings as regards the relationship between their overall turnover and the amount of the fines imposed on them is irrelevant to an assessment of whether the Commission infringed the principles of proportionality and equal treatment and that penalties should fit the individual offender (see, by analogy, Wieland-Werke v Commission [2009] ECR II‑1087, paragraphs 86 and 87). As the Commission rightly points out, it is therefore not contrary to those principles that, through the application of the method of calculation of the basic amount of fines set out in point 13 of the 2006 Guidelines, an undertaking whose activities are more focused than others on the sale of goods or services connected directly or indirectly to the infringement may receive a fine which represents a proportion of its overall turnover greater than that represented by the fines imposed respectively on each of the other undertakings.

399    It is therefore necessary to reject the applicants’ complaint that the Commission, when calculating the fines imposed in the contested decision, did not adjust those fines in order to take account of the difference between the applicants’ overall turnover and the higher overall turnover of Saint-Gobain and of AGC (Splintex), or of the fact that the sale of carglass represented a significantly higher proportion of the applicants’ turnover by comparison to that of Saint-Gobain and of AGC (Splintex).

400    Lastly, it is necessary to reject the applicants’ argument that the consulting firm’s report produced in annex to their letter sent to the Court on 18 January 2013 proves that the fine imposed on them has a disproportionate effect by comparison to the effects of the fines imposed on the other addressees of the contested decision.

401    As noted in paragraphs 274 and 275 above, that report concerns developments after the adoption of the contested decision and such elements may in no event have any effect on the legality of that decision.

402    It follows that the fifth plea in law is unfounded and must therefore be dismissed.

E –  The sixth plea in law, alleging failure to observe the ceiling of the fine as laid down in Article 23(2) of Regulation No 1/2003

a)     Arguments of the parties

403    By their sixth plea in law, the applicants maintain that the fine imposed on them, in the amount of EUR 357 million, exceeds the ceiling laid down in Article 23(2) of Regulation No 1/2003. That is so because the Commission applied an incorrect exchange rate when converting the applicants’ total turnover for the business year preceding the adoption of the contested decision into euros.

404    The applicants claim, in that regard, that they had a total turnover of 2 614 000 000 pounds sterling (GBP) in the business year preceding the adoption of the contested decision, which ended on 31 March 2008, and that the fine could not therefore exceed GBP 261 400 000. While the Commission is indeed entitled to calculate that ceiling in euros, when doing so it should still apply the official exchange rate applicable at the date on which the contested decision was adopted, if that date corresponds to the time when the fine imposed becomes payable. Only that rate permits full compliance with the objective of Article 23(2) of Regulation No 1/2003 as regards undertakings whose accounts are kept in a currency other than the euro. It follows from the case-law that it is permissible to apply, in that regard, a rate separate from that applied when calculating the fine as such, by reference to the exchange rate in the last business year preceding the end of the infringement. The purpose of using the turnover achieved during that business year when calculating the basic amount of the fine is to ensure that the size and economic power of the undertaking, and also its position by comparison with the other undertakings involved in the infringement, are correctly evaluated at the time when the infringement took place. Conversely, the aim pursued by the ceiling of 10% of turnover is different, as it is designed to provide an overriding protection for undertakings against excessively large economic repercussions linked to the fines imposed on them. In the applicants’ submission, that objective could not be properly achieved if the ceiling itself were subject to exchange rate fluctuations.

405    The approach consisting in calculating the ceiling of the fine by reference to the exchange rate applicable at the time of the adoption of the contested decision is the only one capable of observing the principle of equal treatment of undertakings whose accounts are kept in euros and those whose accounts are kept in another currency, in terms of assessing the actual financial impact of a fine at the time when it is imposed. It is also the only method which complies with the objective pursued by the ceiling referred to in the second subparagraph of Article 23(2) of Regulation No 1/2003, since no other method protects the undertakings whose accounts are not kept in euros against the impact of any exchange rate fluctuations up to the time when the contested decision is adopted.

406    In the present case, according to the applicants, whose accounts are kept in pounds sterling, the application of the official exchange rate of the European Central Bank (ECB) at the time of the adoption of the contested decision should have led the Commission to find that the ceiling of the fine was EUR 317 547 860, in application of the exchange rate applicable on 12 November 2008 (EUR 1 = GBP 0.8231). The applicants therefore request the Court to annul the fine imposed on them and, in the exercise of its unlimited jurisdiction, to reduce that fine by the amount of EUR 39 452 140.

407    The Commission disputes those criticisms. It submits, first of all, that it follows from the case-law that the Commission may use the exchange rate in force during the year used as the reference year, both when calculating the basic amount of the fine and when calculating the ceiling referred to in Article 23(2) of Regulation No 1/2003. Any disadvantages which the application of that conversion method may entail for an undertaking in certain circumstances is an element of chance which undertakings that make part of their sales on export markets have to deal with regularly and which, consequently, is not such as to render the amount of a lawfully fixed fine inappropriate.

408    The Commission adds that the application of the average exchange rate during the preceding business year complies with the objective of ensuring legal certainty. That method enables the undertakings concerned to know in advance the ceiling of any fine that might be imposed on them during the following business year. By contrast, if the exchange rate applied were fixed by reference to the date of the decision, it would vary according to the date on which that decision is adopted. Such a method might encourage opportunistic or delaying tactics on the part of the undertakings concerned. In any event, the applicants cannot be protected against the uncertainty of currency fluctuations when total turnover for the preceding business year is calculated. The fact that the applicants must, where necessary, pay a fine that is higher than they would have had to pay if a different exchange rate had been applied is merely the consequence of fluctuations in the real values of the various national currencies.

409    Lastly, in the Commission’s submission, the method which it applied in the present case does not lead to a breach of the principle of equal treatment of undertakings depending on whether their accounts are kept in euros or in another currency. The Commission contends that any calculation of the ceiling of the fine by reference to the exchange rate applicable at the date on which the decision was adopted would not promote the equal treatment of the undertakings concerned, since the risk associated with fluctuations is inevitable irrespective of the calculation method applied.

b)     Findings of the Court

410    The Commission concluded in the present case that the fine imposed on the applicants did not exceed the ceiling of 10% of their total turnover in the business year preceding the adoption of the contested decision, namely the business year which ended on 31 March 2008. It came to that conclusion after converting into euros the applicants’ total turnover in that business year, denominated in pounds sterling, using the average exchange rate of the ECB applicable to those two currencies during the period between 1 April 2007 and 31 March 2008.

411    The parties to the present proceedings do not contest that the exchange rate applied by the Commission was indeed the average exchange rate between the currencies in question during that period, calculated on the basis of the exchange rates published by the ECB during that period.

412    The applicants submit, however, that the application of that method of calculation, rather than a conversion by reference to the official exchange rate applicable at the date on which the contested decision was adopted, namely 12 November 2008, was unfavourable to them given the fluctuation of the exchange rate between the pound sterling and the euro that occurred between the preceding business year and the date on which the contested decision was adopted. They also allege that the application of the average exchange rate in the course of the business year preceding the adoption of the contested decision gave rise to unequal treatment between the applicants, whose accounts were kept in pounds sterling, and the other addressees of that decision, whose accounts were kept in euros, since those other undertakings enjoyed a greater degree of certainty as regards the actual financial impact of the fines imposed on them.

413    However, that argument must be rejected.

414    The Court notes, in that respect, that the upper limit laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003 has a distinct and autonomous objective by comparison with the criteria of the gravity and the duration of the infringement, namely to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will not be able to pay (Dansk Rørindustri and Others v Commission, paragraph 119 above, paragraphs 281 and 282; Knauf Gips v Commission, paragraph 279 above, paragraph 452; and Romana Tabacchi v Commission, paragraph 279 above, paragraph 257).

415    Thus, in accordance with the intention expressed by the EU legislature in Regulation No 1/2003, the ceiling laid down in the second subparagraph of Article 23(2) of that regulation must be determined, in principle, by reference to the economic reality as it appeared in the course of the business year preceding the adoption of the decision penalising an infringement of Article 81 EC. The maximum amount of the fine, calculated in that manner, limits the possible harmful consequences of monetary fluctuations that may have occurred since the infringing conduct came to an end (see, to that effect, Sarrió v Commission, paragraph 247 above, paragraph 89, and Limburgse Vinyl Maatschappij and Others v Commission, paragraph 119 above, paragraph 606 and the case-law cited).

416    The method of calculating that upper limit by applying the average official exchange rate applicable during the business year preceding the adoption of the decision, in order to convert into euros the total turnover of the undertaking concerned in that year, is consistent with that objective (see, to that effect, HFB and Others v Commission, paragraph 150 above, paragraphs 542 and 543).

417    That conclusion cannot be called into question by the fact that currency fluctuations may occur between the business year preceding the adoption of a decision penalising an infringement of Article 81 EC and the date on which that decision is adopted, giving rise to the payment, as the case may be, of a fine greater than that which would have been imposed if the fine had been calculated by reference to the exchange rate applicable at the time that decision was adopted.

418    In the first place, currency fluctuations are an element of chance which may produce advantages and disadvantages which undertakings realising part of their sales on export markets have to deal with regularly in the course of their business activities and the very existence of which is not such as to render inappropriate the amount of a fine lawfully fixed on the basis of the gravity and the duration of the infringement (see Sarrió v Commission, paragraph 247 above, paragraph 89, and Limburgse Vinyl Maatschappij and Others v Commission, paragraph 119 above, paragraph 604 and the case-law cited).

419    Since, moreover, Regulation No 1/2003 does not prohibit the use of the euro in order to set fines (see, by analogy, Sarrió v Commission, paragraph 247 above, paragraph 88), it is necessary to reject the applicants’ argument that, because of the method of converting their turnover chosen by the Commission for the purpose of calculating the maximum amount of the fine, they suffered an unjustified difference in treatment by comparison with the addressees of the contested decision whose accounts are kept in euros.

420    In the second place, contrary to what is suggested by the applicants, the choice made by the Commission to calculate the maximum amount of the fine by reference to the average of the exchange rates applicable during the business year preceding the adoption of the contested decision allowed the applicants a greater degree of legal certainty than if their total turnover in that business year had been converted into euros by reference to the exchange rate applicable at the date on which that decision was adopted. First, the average official exchange rate during that business year constituted, at the end of that year, an objective factor which the applicants could use in order to assess the maximum amount of the fine that could be imposed on them in the course of the next business year. By contrast, the exchange rate applicable at the time the contested decision was adopted was, by definition, unknown until the day on which that decision was adopted by the Commission, on a date chosen by the Commission alone. Furthermore, the application of the average exchange rate between the euro and the pound sterling during a full year, for the purpose of calculating the maximum amount of the fine, was liable to reduce, at least partially, the uncertainty linked to the constant fluctuations between those currencies.

421    The Commission was therefore entitled to calculate the ceiling of the fine resulting from the application of the second subparagraph of Article 23(2) of Regulation No 1/2003 by reference to the applicants’ total turnover in the preceding business year, converted into euros by the application of the average exchange rate during that business year, and to conclude, therefore, that the fine of 357 million euros imposed on the applicants did not exceed that ceiling.

422    It follows that the sixth plea in law is unfounded and must be rejected.

423    Since none of the pleas in law raised by the applicants are well founded, the claims for annulment of the contested decision must be rejected in their entirety.

IV –  The Court’s exercise of its unlimited jurisdiction

a)     Arguments of the parties

424    The applicants request the Court to exercise its unlimited jurisdiction in the present case and to reduce substantially the amount of the fine imposed on them.

425    The applicants submit that the fine imposed on them is disproportionate, in the light of all the circumstances of the case. Thus, the applicants deny that the contacts in which they were found to have engaged constitute the worst form of collusive behaviour and maintain that the methodology applied by the Commission in calculating fines gives rise to penalties which too often exceed the ceiling of 10% of turnover. The applicants further maintain that a reduction of the fine by the Court is all the more justified in the present case because, first, a difficult economic situation prevailed when the Commission adopted the contested decision, a situation which has since continued to deteriorate, and, secondly, the fines imposed in EU law are among the highest in the world. In addition, failure to reduce the fine imposed on the applicants in the contested decision would have the paradoxical consequence of reducing the applicants’ competitive capacity on the carglass market within the EEA, a result that would be contrary to that sought by Article 81(1) EC and by Article 53 of the EEA Agreement. The applicants further submit that the consulting firm’s report which was sent to the Court in an annex to their letter of 18 January 2013 shows the disproportionate nature of the fine, in view, in particular, of the deterioration of their financial situation since the contested decision was adopted.

426    At the hearing, the applicants again submitted, in support of their request for a reduction of the fine, that they had voluntarily withdrawn from the cartel several months before that cartel came to an end, that the fine imposed on them in the case that gave rise to the Flat Glass decision had already sufficiently deterred them from committing any further infringements of Article 81 EC and, lastly, that the contested fine represented a significant proportion of their annual turnover, because of the fact that their activities were less diversified than those of Saint-Gobain and of AGC (Splintex).

427    The Commission contends that there is no objective reason for the Court to exercise its unlimited jurisdiction in the present case. It is of no relevance in that respect that the application of a new method of calculation in the 2006 Guidelines gives rise to fines which reach the ceiling laid down in Article 23(2) of Regulation No 1/2003 more frequently than previously. According to the Commission, the financial difficulties experienced by the applicants at the time the contested decision was adopted, even were they established, would be irrelevant to the setting of the fine, since to take them into account would be tantamount to giving an unjustified competitive advantage to the undertakings least well adapted to the market conditions.

428    The Commission is also opposed to the Court taking into account, for the purposes of the exercise of its unlimited jurisdiction, the consulting firm’s report produced by the applicants in an annex to their letter of 18 January 2013. While acknowledging that the EU judicature may be led to take account, in the exercise of such jurisdiction, of additional information that was not mentioned in the contested decision, the Commission submits that that possibility must in principle be limited to taking into account information predating the contested decision. In any event, the Commission states that the abovementioned report lacks relevance in the present case, since the Commission was not bound to take into account any financial difficulties faced by the applicants when it calculated the fine. In particular, the Commission emphasised at the hearing that, unlike the applicant in the case that gave rise to Romana Tabacchi v Commission, paragraph 279 above, the applicants have not demonstrated in the present case that the payment of the contested fine would be liable to bring about their winding up and, consequently, their disappearance from the market.

429    Lastly, the Commission claims that it is natural that some of the fines which it imposes under EU competition law should be among the highest in the world, since it penalises only infringements of Community scale and since, in addition, the supervision which it carries out covers the largest market that any competition authority has to protect.

b)     Findings of the Court

430    As a preliminary point, it must be determined whether the Court may be called on to take into account, for the purposes of the exercise of its unlimited jurisdiction, information such as that contained in the consulting firm’s report produced by the applicants in an annex to their letter of 18 January 2013, relating to developments subsequent to the date on which the contested decision was adopted, which the Commission disputes.

431    In that respect, it must be recalled that, more than a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, the unlimited jurisdiction conferred on the Court by Article 31 of Regulation No 1/2003, in accordance with Article 229 EC, authorises the Court to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine (see Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 86 and the case-law cited).

432    Since the Court has power to assess the appropriateness of the amounts of fines in the context of its unlimited jurisdiction, that assessment may justify the production and taking into account of additional information which is not as such required, by virtue of the duty to state reasons under Article 296 TFEU, to be set out in the decision (Case C‑248/98 P KNP BT v Commission [2000] ECR I‑9641, paragraph 40; Cheil Jedang v Commission, paragraph 381 above, paragraph 100; and Tokai Carbon and Others v Commission, paragraph 297 above, paragraph 164).

433    It follows that the consulting firm’s report referred to in paragraph 430 above may be taken into account by the Court in order to assess whether it should exercise its unlimited jurisdiction by reducing the fine imposed on the applicants, in accordance with the form of order which they seek.

434    However, the Court considers that neither that report nor, more generally, the circumstances of the present case justify a reduction of the fine imposed on the applicants, as last set out in the amending decision of 28 February 2013.

435    As regards, first of all, the applicants’ argument that their conduct was of a lesser gravity than that of the other undertakings that took part in the cartel at issue, it must be emphasised that the collusive practices at the heart of the present dispute, as the Commission rightly pointed out, constitute a serious infringement of EU competition law, on a very large scale over several years. Although the Commission did not consider that the cartel in question could be regarded as a structured cartel, it must be noted that the cartel in question — the objective of which was to stabilise the market shares of the participating undertakings — involved a series of regular meetings and contacts during which those undertakings organised the allocation of numerous supply contracts, in particular by discussing prices. In addition, the operation of the cartel was made possible by the development of a common method for the calculation of the market shares of the participating undertakings, and by compensatory measures intended to adjust the market shares when one or more supply contracts were not awarded in accordance with the allocation decided on within the cartel.

436    Moreover, in view of the reasoning set out in paragraphs 380 to 402 above, the applicants have not been able to show that their conduct complained of in the contested decision was of a significantly lesser gravity than that of the other club members. The Court also notes that the applicants did not show a particularly high level of cooperation with the Commission during the investigation.

437    Furthermore, while it is true that, unlike Saint-Gobain, the applicants were not considered repeat offenders in the context of the infringement of EU competition law at the heart of the present dispute, and that they did not participate in the infringement for as long as Saint-Gobain, those circumstances are reflected by a significant difference between the amount of the fines imposed on those two undertakings.

438    As regards the applicants’ argument that the fine imposed on them has a greater impact on their financial situation than those imposed on AGC (Splintex) and on Saint-Gobain, because the applicants’ activities are less diversified than those of AGC (Splintex) and of Saint-Gobain, it is not — even were it established — capable of justifying a reduction of the fine. In accordance with Article 23(3) of Regulation No 1/2003, the fine must be set solely by reference to the criteria of the gravity and of the duration of an infringement of Article 81 EC. Accordingly, the fact that disparities, even significant ones, may exist between the proportion of turnover represented by the various fines imposed on undertakings that participated in the same cartel, as a result, inter alia, of the share of each undertaking’s turnover concerned by the infringement, is irrelevant for the purpose of examining the proportionate nature of those fines and whether the principle of equal treatment had been observed (see, to that effect, the case-law cited in paragraph 397 above).

439    In addition, the dissuasive nature of the fine imposed on the applicants in the case that gave rise to the Flat Glass decision cannot justify a reduction of the fine imposed on them in the present case. As can be seen from the reasoning set out in paragraphs 299 to 305 above, such a reduction would have the effect of altering the purpose of general deterrence of serious infringements of Article 81 EC pursued by the contested fine and, moreover, of rewarding the applicants for infringing the EU competition rules.

440    Lastly, the applicants’ argument concerning the deterioration of their financial situation since the adoption of the contested decision must also be rejected.

441    In that regard, the Court notes that the effectiveness of the Commission’s competition policy could be compromised if the financial consequences of the fines imposed for infringements of the EU competition rules could not have a certain impact on the undertakings concerned, in particular when those undertakings invoke either their own financial difficulties or a crisis affecting a sector in order to obtain an alleviation of the penalty imposed on them for such an infringement. That is particularly so given that, as noted in paragraph 308 above, it is often the case that cartels come into being when a sector is experiencing difficulties, and that the ability of an undertaking to pay a fine imposed on it for an infringement of Article 81 EC is already taken into account by the limitation of the amount of the fine at 10% of total turnover in the preceding business year, in accordance with Article 23(2) of Regulation No 1/2003.

442    It follows that the financial difficulties faced by an undertaking are capable of justifying, as such, a reduction of the fine imposed on that undertaking only in exceptional circumstances, where justified by an overriding interest. That may be the case, inter alia, when it is established that the payment of the fine set by the Commission would be liable to bring about the winding up of the company required to pay it, with the result that the amount of that fine does not appear proportionate in view of the serious and irreversible repercussions that such a winding up might entail (see, to that effect, Romana Tabacchi v Commission, paragraph 279 above, paragraphs 283 and 284).

443    In the present case, it is true that the consulting firm’s report produced by the applicants seems to establish that the fine at issue is liable to have a non-negligible impact on their financial situation. It must however be noted that the applicants have not demonstrated the existence of exceptional circumstances that would justify reducing that fine in order to take into account the financial difficulties which the payment of that fine might entail for the applicants.

444    Since the fine thus appears, in the light of the circumstances of the case, both proportionate and adequate, the claims that the Court should exercise its unlimited jurisdiction by reducing that fine must be rejected.

445    It follows from the interim conclusions set out in paragraphs 423 and 444 above that the action must be dismissed in its entirety.

 Costs

446    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Pursuant to the first subparagraph of Article 87(3) of the same rules, where the circumstances are exceptional, the Court may, inter alia, order that the costs be shared.

447    In the present case, the applicants have been unsuccessful in all of their heads of claim and the Commission has applied for costs.

448    However, it is necessary to take account of the fact that it was only in the course of the proceedings, several years after the adoption of the contested decision and after the closure of the written procedure, that the Commission corrected two errors made in calculating the fine imposed on the applicants, by adopting the amending decision of 28 February 2013. First, the Court notes that, although the application did not refer specifically to those errors, it nevertheless contained a complaint alleging a failure to state sufficient reasons for the contested decision as regards the sales figures taken into account in order to calculate the amount of the fine and the resulting impossibility of verifying the accuracy of those figures. Secondly, it was only after the Commission produced, in its rejoinder, a detailed overview of the calculation of the fine imposed on the applicants that they were in a position to identify the two errors in question and to request the Commission to correct them.

449    The Court will therefore make an equitable assessment of the circumstances of the present case in holding that the applicants are to bear 90% of their own costs and to pay all of the costs incurred by the Commission and that the Commission is to bear 10% of the costs incurred by the applicants.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Pilkington Group Ltd, Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH and Pilkington Italia SpA to bear 90% of their own costs and to pay all of the costs incurred by the Commission and orders the Commission to bear 10% of the costs incurred by the applicants.

Delivered in open court in Luxembourg on 17 December 2014.

[Signatures]

Table of contents

Background to the dispute

The contested decision

Procedure and forms of order sought

Law

I – The subject-matter of the action

II – The pleas in law relating to the nature of the infringement and the duration of the applicants’ participation in it

A – The first plea in law, alleging an error in the legal characterisation of the facts and an error in the assessment of the gravity of the infringement

a) Arguments of the parties

b) Findings of the Court

B – The second plea in law, alleging an incorrect assessment of the duration of the applicants’ participation in the cartel

a) Arguments of the parties

b) Findings of the Court

III – The pleas in law concerning the calculation of the fine imposed on the applicants

A – The method employed by the Commission in order to assess the relative gravity of the applicants’ participation in the cartel at issue

B – The third plea in law, alleging the taking into account of inappropriate sales figures in the calculation of the fine, a procedural error and failure to state reasons

1. The first part, alleging the taking into account of inappropriate sales figures in the calculation of the fine

a) Arguments of the parties

b) Findings of the Court

2. The second part, alleging breach of the applicants’ procedural rights under Article 27 of Regulation No 1/2003

a) Arguments of the parties

b) Findings of the Court

3. The third part, alleging a failure to state reasons

a) Arguments of the parties

b) Findings of the Court

C – The fourth plea in law, alleging infringement of the principle of proportionality and the principle that penalties must be specific to the offender, and disregard for previous administrative practice

a) Arguments of the parties

b) Findings of the Court

D – The fifth plea in law, alleging an error in the calculation of the fine owing to the lesser gravity of the applicants’ conduct by comparison with the other undertakings which participated in the cartel and breach of the principle of equal treatment

a) Arguments of the parties

b) Findings of the Court

The admissibility of the line of argument put forward by the applicants in certain annexes to their application

The applicants’ participation in the meetings and contacts of the cartel

– The meeting held in Paris in mid-2000 concerning the supply of carglass for the [confidential]

– The meeting held on 5 July 2000 concerning the supply of carglass for certain models of [confidential] and of [confidential]

– The meeting held in late October or early November 2000 concerning certain models of [confidential]

– The meeting of 1 November 2000 concerning certain models of [confidential]

– The meeting that took place ‘some time prior to or around 13-14 December 2000’, concerning certain models of [confidential]

– The meeting or contact of 30 April 2002

– The contact that took place shortly before 23 June 2000 concerning the manufacturer [confidential]

– The contacts that took place on 23 June and 17 July 2000 concerning the manufacturer [confidential]

– The contact that took place in May 2001 concerning the [confidential]

– The contact that took place on 10 September 2001 concerning the [confidential]

– The contact that took place on 6 November 2001 concerning the manufacturer [confidential]

– Conclusion on the meetings and contacts examined in the context of the present plea in law

The assessment of the individual gravity of the applicants’ conduct

E – The sixth plea in law, alleging failure to observe the ceiling of the fine as laid down in Article 23(2) of Regulation No 1/2003

a) Arguments of the parties

b) Findings of the Court

IV – The Court’s exercise of its unlimited jurisdiction

a) Arguments of the parties

b) Findings of the Court

Costs

* Language of the case: English.

1 – Confidential information omitted.

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