Judgments nº T-447/14 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-447/14

(Competitions - Agreements, decisions and concerted practices - European market for power cables - Decision finding an infringement of Article 101 TFEU - Single and continuous infringement - Evidence of the infringement - Duration of Involvement - Public Distancing - Calculation of the fine - Gravity of the infringement - Unlimited jurisdiction)

In Case T-447/14,

NKT Verwaltungs GmbH, formerly nkt cables GmbH, established in Cologne (Germany),

NKT A/S, formerly NKT Holding A/S, established in Brøndby (Denmark),

represented by M. Kofmann and B. Creve, lawyers,

applicants,

v

European Commission, represented by C. Giolito, H. van Vliet and C. Vollrath, acting as Agents, and by B. Doherty, Barrister,

defendant,

APPLICATION pursuant to Article 263 TFEU primarily for 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 applicants and, in the alternative, an application for a reduction in the amount 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 31 May 2017,

gives the following

Judgment

1. Background to the dispute

   1. The applicants and sector concerned

      1 The applicants, NKT A/S, formerly NKT Holding A/S and its wholly owned subsidiary NKT Verwaltungs GmbH, formerly nkt cables GmbH, are Danish and German companies active in the underground and submarine power cable production and supply sector (recitals 32 and 900 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) (‘the contested decision’)).

      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 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. Power cables are sold throughout the world to large national grid operators and other electricity companies, principally through competitive public tenders.

   2. Administrative procedure

      3 By letter of 17 October 2008, the Swedish company ABB AB provided the European Commission 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 Between 28 January and 3 February 2009, further to the statements made by ABB, the Commission carried out inspections at the premises of Prysmian SpA and Prysmian Cavi e Sistemi Energia Srl and at the premises of the French companies 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 Corp., submitted a joint application for immunity from a fine, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction in its amount, 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, 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, to undertakings in the underground and submarine power cable production and supply sector.

      7 On 30 June 2011, the Commission initiated proceedings and adopted a statement of objections against the following legal entities: Pirelli & C. SpA, Prysmian Cavi e Sistemi Energia, Prysmian, The Goldman Sachs Group Inc., Nexans, Nexans France, 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, Silec Cable SAS, Grupo General Cable Sistemas SA, Safran SA, General Cable Corp., LS Cable & System Ltd, Taihan Electric Wire Co. Ltd, and the applicants.

      8 Between 11 and 18 June 2012, all the addressees of the statement of objections, with the exception of Furukawa Electric, participated 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 Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T-140/09, not published, EU:T:2012:597), the General Court partly annulled the inspection decisions addressed, first, to Nexans and to Nexans France, and second, to Prysmian and to 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 two 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 Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement in 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 several 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 cable sector. Essentially, 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 had participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition in connection with (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers among themselves and thereby distorting the normal competitive process (recitals 10 to 13 and 66 of the contested decision).

         12 The Commission found, in the contested decision, that the cartel had two main configurations, which formed a composite whole. More specifically, according to the Commission, the cartel comprised two parts, namely:

         - the ‘A/R 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. The ‘A/R cartel configuration’ made it possible to achieve the objective of allocating territories and customers between the European, Japanese and South Korean producers. That allocation followed an agreement relating to ‘home’ territories under which the Japanese and South Korean producers would refrain from tendering for projects in the national territory of the European producers and the European producers would stay out of the Japanese and South Korean markets. In addition to that allocation, projects were allocated in the ‘export territories’, namely the rest of the world apart from the United States, which, for a time, followed a 60/40 split, meaning that 60% of the projects were reserved to the European producers and the remaining 40% were reserved to the Asian producers;

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

         13 The Commission found that the cartel members had put in place obligations to exchange information, so as 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 into three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group of the cartel as including the European undertakings: Nexans France, the subsidiaries of Pirelli & C., formerly Pirelli SpA, having successively participated in the cartel (‘Pirelli’), and Prysmian Cavi e Sistemi Energia; and, second, the Japanese undertakings: Furukawa Electric, Fujikura and their joint venture Viscas, as well as Sumitomo Electric industries, Hitachi Cable and their joint venture J-Power Systems (recitals 545 to 561 of the contested decision). Next, the Commission identified a group of undertakings which were not part of the core group but which nevertheless could not be regarded as merely marginal cartel participants. In this group it placed ABB, Exsym, Brugg Kabel and the entity constituted by Sagem SA, Safran and Silec Cable (recitals 562 to 575 of the contested decision). Lastly, the Commission took the view that Mitsubishi Cable Industries, SWCC Showa Holdings, LS Cable & System, Taihan Electric Wire and nkt cables were merely ‘fringe players’ in the cartel (recitals 576 to 594 of the contested decision).

      2. The...