Judgments nº T-123/07 of The General Court, March 03, 2011

• Resolution Date: March 03, 2011
• Issuing Organization: The General Court
• Decision Number: T-123/07

In Joined Cases T‑122/07 to T‑124/07,

Siemens AG Österreich, established in Vienna (Austria),

VA Tech Transmission & Distribution GmbH & Co. KEG, established in Vienna,

applicants in Case T‑122/07,

Siemens Transmission & Distribution Ltd, established in Manchester (United Kingdom),

applicant in Case T‑123/07,

Siemens Transmission & Distribution SA, established in Grenoble (France),

Nuova Magrini Galileo SpA, established in Bergamo (Italy),

applicants in Case T‑124/07,

represented by H. Wollmann and F. Urlesberger, lawyers,

v

European Commission, represented initially by F. Arbault and O. Weber, and subsequently by X. Lewis and A. Antoniadis, and finally by A. Antoniadis and R. Sauer, acting as Agents,

defendant,

APPLICATION, primarily, for the partial annulment of Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) and, in the alternative, for a reduction of the fine imposed on the applicants,

THE GENERAL COURT (Second Chamber),

composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and S. Soldevila Fragoso, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 16 March 2010,

gives the following

Judgment

Background to the dispute

I – Applicants and the VA Tech Group

1 On 20 September 1998, VA Technologie AG acquired a subsidiary of Rolls‑Royce, namely Reyrolle Ltd, which became VA Tech Reyrolle Ltd then Siemens Transmission & Distribution Ltd, the applicant in Case T‑123/07 (‘Reyrolle’). On 13 March 2001, VA Technologie, through its wholly‑owned subsidiary VA Tech Transmission & Distribution GmbH & Co. KEG, the second applicant in Case T‑122/07 (‘KEG’), transferred Reyrolle into the newly created company VA Tech Schneider High Voltage GmbH (‘VAS’), in which it held 60% of the shares through its subsidiary, the remainder of which were held by Schneider Electric SA. Schneider’s transfer into VAS consisted of Schneider Electric High Voltage SA, which became VA Tech Transmission & Distribution SA, then Siemens Transmission & Distribution SA, the first applicant in Case T‑124/07 (‘SEHV’), and of Nuova Magrini Galileo SpA, the second applicant in Case T‑124/07 (‘Magrini’), which were previously wholly‑owned subsidiaries of it. Since 1999 SEHV has regrouped the former high-tension activities of several subsidiaries of Schneider Electric.

2 In October 2004, VA Technologie acquired, through KEG, all of Schneider Electric’s shares in VAS.

3 In 2005, Siemens AG acquired exclusive control of the group whose parent company was VA Technologie (‘the VA Tech Group’), via a public bid announced by a subsidiary, namely the first applicant in Case T‑122/07 Siemens AG Österreich (‘Siemens Österreich’). Following that take over, VA Technologie and, subsequently, VAS were merged with Siemens Österreich.

II – GIS and the prelitigation procedure

4 Gas insulated switch gear (‘GIS’) is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for turnkey power sub-stations. Substations are auxiliary power stations where electrical current is converted. In addition to the transformer, other essential components for substations are control systems, relays, batteries, chargers and switchgear. The function of switchgear is to protect the transformer from overload and/or insulate the circuit and a faulty transformer.

5 Insulation of switchgear may be through gas, air or some combination of the two, namely hybrid switchgear. GIS is sold across the world either as part of turnkey power substations or as loose equipment which has to be integrated into a turnkey power substation. It accounts for 30 to 60% of the total price of those substations.

6 On 3 March 2004, ABB Ltd informed the Commission of anti‑competitive practices in the GIS sector and made an oral application for immunity from fines pursuant to the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the Leniency Notice’).

7 The practices reported by ABB entailed coordination on a worldwide scale for the award of GIS projects, involving market sharing, allocation of quotas and maintenance of respective market shares, the allocation of GIS projects to designated producers and manipulation of the bidding procedure for those projects (bid-rigging) in order to ensure that the assigned producers were awarded the contract in question, the fixing of prices by means of complex price arrangements for GIS projects which were not allocated, the termination of licence agreements with non cartel members and the exchange of sensitive market information.

8 The oral application for immunity made by ABB was supplemented by oral statements and documentary evidence. On 25 April 2004, the Commission granted conditional immunity to ABB.

9 On the basis of ABB’s statements, the Commission launched an investigation and, on 11 and 12 May 2004, it carried out inspections at the premises of Areva T&D SA, Siemens AG, the VA Tech Group, Hitachi Ltd and Japan AE Power Systems Corp (‘JAEPS’).

10 On 30 July 2004, the VA Tech group provided the Commission with a memorandum and documents and, on 23 August 2004, additional explanations.

11 On 20 April 2006, the Commission adopted a Statement of Objections, which was notified to 20 companies including the applicants.

III – Contested decision

12 On 24 January 2007, the Commission adopted Decision C (2006) 6762 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) (‘the contested decision’). That decision was notified to the applicants on 7 or 8 February 2007.

13 In addition to the applicants and Schneider Electric, the contested decision was addressed to ABB, Alstom, SA, Areva, SA, Areva T&D AG, Areva T&D Holding SA and Areva T&D SA (referred to collectively as ‘the companies in the Areva Group’), Fuji Electric Holdings Co., Ltd and Fuji Electric Systems Co., Ltd (referred to collectively as ‘Fuji’), Hitachi Ltd and Hitachi Europe Ltd (referred to collectively as ‘Hitachi’), JAEPS, Mitsubishi Electric System Corp. (‘Melco’), Siemens and Toshiba Corp.

14 In recitals 113 to 123 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had coordinated the allocation of GIS projects worldwide – except for specific markets – according to agreed rules in order to maintain quotas largely reflecting estimated historic market shares. It pointed out that the allocation of GIS projects had been carried out on the basis of a joint ‘Japanese’ quota and a joint ‘European’ quota, which the Japanese and European producers then had to distribute among themselves. An agreement signed in Vienna on 15 April 1988 (‘the GQ Agreement’) established rules allowing the allocation of GIS projects to either Japanese producers or to European producers and to set their value against the corresponding quota. In addition, in recitals 124 to 132 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had entered into an unwritten agreement (‘the common understanding’), under which GIS projects in Japan, on the one hand, and in the countries of European members of the cartel, on the other – together described as the ‘home countries’ for GIS projects – were reserved to Japanese members and European members of the cartel respectively. GIS projects located in the ‘home countries’ were not the subject of information exchanges between the two groups and were not charged to their respective quotas.

15 The GQ Agreement also contained rules relating to the exchange of information necessary for operation of the cartel between the two groups of producers, carried out in particular by their respective secretaries, and to the manipulation of the bidding procedures concerned and the fixing of prices for GIS projects which could not be allocated. Under the terms of Annex 2 to the GQ Agreement, the agreement applied worldwide, except in the United States, Canada, Japan and 17 Western European countries. Furthermore, under the common understanding, GIS projects in European countries, other than the ‘home countries’, were also reserved for the European group, as the Japanese producers had undertaken not to submit bids for GIS projects in Europe.

16 According to the Commission, the sharing of GIS projects between the European producers was governed by an agreement also signed in Vienna on 15 April 1988, entitled ‘E-Group Operation Agreement for GQ Agreement’) (‘the EQ Agreement’). It indicated that the distribution of GIS projects in Europe followed the same rules and procedures as those governing the distribution of GIS projects in other countries. In particular, GIS projects in Europe also had to be notified, recorded, allocated, arranged or have received a minimum price.

17 In recital 142 of the contested decision, the Commission stated that, in the GQ and EQ Agreements, and for the purpose of the organisation and good functioning of the cartel, different members of the cartel were identified by a code, consisting of numbers for the European members and letters for the Japanese members. The initial codes were replaced by just numbers from July 2002.

18 In Article 1(p) and (t) of the contested decision, the Commission found that Siemens Österreich and KEG had participated in the infringement from 20 September 1998 to 13 December 2000 and from 1 April 2002 to 11 May 2004.

19 In Article 1(m), (q) and (r) of the contested decision, the Commission found that Reyrolle, SEHV and Magrini had participated in the infringement from 15 April 1988 to 13 December 2000 and from 1 April 2002 to 11 May 2004.

20 In Article 2(1) of the contested decision, in respect of the infringements contained in Article...