Judgments nº T-419/14 of Tribunal General de la Unión Europea, July 12, 2018

• Resolution Date: July 12, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-419/14

(Competition - Agreements, decisions and concerted practices - European market for power cables - Decision finding an infringement of Article 101 TFEU - Single and continuous infringement - Imputability of the infringement - Presumption - Error of assessment - Presumption of innocence - Legal certainty - Principle of personal responsibility - Unlimited jurisdiction)

In Case T-419/14,

The Goldman Sachs Group, Inc., established in New York, New York (United States), represented by W. Deselaers, J. Koponen and A. Mangiaracina, lawyers,

applicant,

v

European Commission, represented by C. Giolito, L. Malferrari, H. van Vliet and J. Norris-Usher, acting as Agents,

defendant,

supported by

Prysmian SpA, established in Milan (Italy),

Prysmian cavi e sistemi Srl, established in Milan,

represented by C. Tesauro, F. Russo and L. Armati, lawyers,

interveners,

APPLICATION under Article 263 TFEU for the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 - Power cables) in so far as it concerns the applicant and, in the alternative, a reduction of the fine imposed on the applicant,

THE GENERAL COURT (Eighth Chamber),

composed of A. M. Collins, President, M. Kancheva (Rapporteur) and R. Barents, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 28 March 2017,

gives the following

Judgment

1. Background to the dispute

   1. The applicant and the sector concerned

      1 The applicant, The Goldman Sachs Group, Inc., is a United States company. It is an investment bank which operates in all the major financial centres around the world. Between 29 July 2005 and 28 January 2009, it was the indirect parent company, through GS Capital Partners V Funds, LP (‘the GSCP V Funds’) and other intermediate companies, of Prysmian SpA and of a wholly owned subsidiary of that company, Prysmian Cavi e Sistemi Srl (‘PrysmianCS’), formerly Pirelli Cavi e Sistemi Energia SpA, and subsequently Prysmian Cavi e Sistemi Energia Srl. Prysmian and PrysmianCS together form the Prysmian group, one of the leading businesses worldwide in the submarine and underground power cables sector.

      2 Submarine power cables are used under water and underground power cables are used under the ground for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage and high and extra high voltage. High voltage and extra high voltage power cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of the power cable and the necessary additional equipment, installation and services. High voltage and extra high voltage power cables are sold throughout the world to large national grid operators and other electricity companies, principally through competitive public tender procedures.

   2. Administrative procedure

      3 By letter of 17 October 2008, the Swedish company ABB AB provided the Commission of the European Communities with a series of statements and documents concerning restrictive commercial practices in the underground and submarine power cable production and supply sector. Those statements and documents were produced in support of an application for immunity submitted in accordance with the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’).

      4 From 28 January to 3 February 2009, further to the statements made by ABB, the Commission carried out inspections at the premises of Prysmian and Prysmian Cavi e Sistemi Energia and at the premises of other European companies concerned, that is to say, Nexans SA and Nexans France SAS.

      5 On 2 February 2009, the Japanese companies, Sumitomo Electric Industries Ltd, Hitachi Cable Ltd and J-Power Systems submitted a joint application for immunity from fines, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction of the amount thereof, in accordance with point 27 of the Leniency Notice. They then supplied the Commission with further oral statements and documentation.

      6 During the course of the investigation the Commission sent several requests for information to undertakings in the underground and submarine power cable production and supply sector 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 [101] and [102 TFEU] (OJ 2003 L 1, p. 1), and point 12 of the Leniency Notice.

      7 On 30 June 2011, the Commission initiated proceedings and adopted a statement of objections against the following legal entities: Nexans France, Nexans, Pirelli & C. SpA, Prysmian Cavi e Sistemi Energia, Prysmian, Sumitomo Electric Industries, Hitachi Cable, J-Power Systems, Furukawa Electric Co. Ltd, Fujikura Ltd, Viscas Corp., SWCC Showa Holdings Co. Ltd, Mitsubishi Cable Industries Ltd, Exsym Corp., ABB, ABB Ltd, Brugg Kabel AG, Kabelwerke Brugg AG Holding, nkt cables GmbH, NKT Holding A/S, Silec Cable SAS, Grupo General Cable Sistemas, SA, Safran SA, General Cable Corp., LS Cable & System Ltd, Taihan Electric Wire Co. Ltd and the applicant.

      8 Between 11 and 18 June 2012, all the addressees of the statement of objections, with the exception of Furukawa Electric, took part in an administrative hearing before the Commission.

      9 By judgments of 14 November 2012, Nexans France and Nexans v Commission (T-135/09, EU:T:2012:596) and of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T-140/09, EU:T:2012:597), the General Court partly annulled the inspection decisions addressed, first, to Nexans and Nexans France, and, second, to Prysmian and Prysmian Cavi e Sistemi Energia, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the action as to the remainder. On 24 January 2013, Nexans and Nexans France brought an appeal against the first of those judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C-37/13 P, EU:C:2014:2030), the Court of Justice dismissed that appeal.

      10 On 2 April 2014, the Commission adopted its Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the [EEA] Agreement (Case AT.39610 - Power cables) (‘the contested decision’).

   3. Contested decision

      1. The infringement at issue

         11 Article 1 of the contested decision states that a number of undertakings participated, over various periods of time, in a single and continuous infringement of Article 101 TFEU in the ‘(extra) high voltage underground and/or submarine power cables sector’. In essence, the Commission found that, from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition for (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers, thereby distorting the normal competitive process (recitals 10 to 13 and 66 of that decision).

         12 In the contested decision, the Commission found that the cartel consisted of two main configurations, which formed a composite whole. More specifically, according to the Commission, the cartel consisted of two aspects, namely:

         - the ‘A/R cartel configuration’, which included the European undertakings, which were generally referred to as ‘R members’, the Japanese undertakings, referred to as ‘A members’, and, lastly, the South Korean undertakings, referred to as ‘K members’. That configuration made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers. That allocation followed an agreement relating to the ‘home territory’, under which the Japanese and South Korean producers would refrain from competing for projects in the European producers’ ‘home territory’ and the European producers would undertake to stay out of the Japanese and South Korean markets. In addition, the parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States. For a time, this allocation was based on a ‘60/40’ quota, meaning that 60% of the projects were reserved for European producers and the remaining 40% were reserved for Asian producers;

         - the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects to be carried out within the European ‘home territory’ or allocated to the European producers (see section 3.3 of the contested decision and, in particular, recitals 73 and 74 of that decision).

         13 The Commission found that the participants in the cartel had established obligations to exchange information in order to enable the allocation agreements to be monitored (recitals 94 to 106 and 111 to 115 of the contested decision).

         14 The Commission classed the cartel participants in three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group to include the European undertakings Nexans France, the subsidiaries of Pirelli & C., formerly Pirelli SpA, having participated successively in the cartel and Prysmian Cavi e Sistemi Energia and the Japanese undertakings Furukawa Electric Co., Fujikura and their joint undertaking Viscas, as well as Sumitomo Electric Industries, Hitachi Cable and their joint undertaking J-Power Systems (recitals 545 to 561 of the contested decision). Next, the Commission identified a group of undertakings which had not been part of the core group but which nevertheless could not be regarded as merely...