OPINION OF ADVOCATE GENERAL

MAZÁK

delivered on 11 February 2010 (1)

Case C‑407/08 P

Knauf Gips KG, formerly Gebr. Knauf Westdeutsche Gipswerke KG

v

European Commission

(Appeal – Competition – Cartel – Plasterboard market – Infringement of Article 81 EC – Administrative procedure – Infringement of the rights of the defence – Access to the file – Refusal to communicate incriminating evidence – Refusal to communicate exculpatory evidence – Agreements and concerted practices constituting a single infringement – Infringement of the 10% ceiling under Article 15(2) of Regulation No 17 – Economic unit)

I –  Introduction

1.        By its appeal, Knauf Gips KG, formerly Gebrüder Knauf Gipswerke KG (hereinafter also referred to as the ‘appellant’), requests the Court, inter alia, to set aside the judgment of the Court of First Instance (Third Chamber) of 8 July 2008 in Case T‑52/03 (2) (the ‘contested judgment’) in its entirety. In the alternative, the appellant seeks that the Court refer the case back to the Court of First Instance for a fresh decision and in the further alternative, a reduction of the fine imposed on it, and in any event by at least EUR 54.51 million.

II –  Legal framework

2.        Article 15(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (3) provides:

‘The Commission may by decision impose on undertakings or associations of undertakings fines of from 1 000 to 1 000 000 units of account, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently:

(a)      they infringe Article [81](1) or Article [82] of the Treaty; …’

III –  Background to the appeal

A –    Contested decision

3.        On 27 November 2002, the Commission adopted the Decision 2005/471/EC relating to proceedings under Article 81 of the EC Treaty against BPB PLC, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E‑1/37.152 – Plasterboard) (the ‘contested decision’) in which it found that BPB plc (‘BPB’), the Knauf group, Société Lafarge SA (‘Lafarge’) and Gyproc Benelux NV (‘Gyproc’) had infringed Article 81(1) EC by participating in a set of agreements and concerted practices in the plasterboard business. (4) The Commission considered that BPB, Knauf, (5) Lafarge and Gyproc had entered into and participated without interruption in a complex and continuing agreement contrary to Article 81(1) EC which was manifested in the following conduct constituting agreements or concerted practices:

–        the representatives of BPB and Knauf met in London in 1992 and expressed the common desire to stabilise the markets in Germany (hereinafter ‘German market’), the United Kingdom (hereinafter ‘UK market’), France (hereinafter ‘French market’) and the Netherlands, Belgium and Luxembourg (hereinafter ‘Benelux market’);

–        the representatives of BPB and Knauf established, as from 1992, information exchange arrangements, to which Lafarge and subsequently Gyproc acceded, relating to their sales volumes on the German, French, UK and Benelux plasterboard markets;

–        the representatives of BPB, Knauf and Lafarge exchanged information, on various occasions, prior to price increases on the UK market;

–        in view of particular developments on the German market, the representatives of BPB, Knauf, Lafarge and Gyproc met at Versailles in 1996, Brussels in 1997 and The Hague in 1998 with a view to sharing out or at least stabilising the German market;

–        the representatives of BPB, Knauf, Lafarge and Gyproc exchanged information on various occasions and concerted their action on the application of price increases on the German market between 1996 and 1998. (6)

4.        Pursuant to Article 1 of the contested decision, the duration of the infringement was as follows:

–        ‘BPB PLC: from 31 March 1992, at the latest, to 25 November 1998;

–        Knauf: from 31 March 1992, at the latest, to 25 November 1998;

–        Société Lafarge SA: from 31 August 1992, at the latest, to 25 November 1998;

–        Gyproc Benelux NV: from 6 June 1996, at the latest, to 25 November 1998.’

5.        The Commission considered, having regard to the nature of the conduct in question, its practical impact on the plasterboard market which was highly concentrated and oligopolistic in nature and the fact that it covered the four principal markets at the heart of the European Community, that the addressees of the contested decision had committed a very serious infringement of Article 81(1) EC. The following fines were imposed on the following undertakings:

–        BPB: EUR 138.6 million,

–        Gebrüder Knauf Westdeutsche Gipswerke KG: EUR 85.8 million,

–        Lafarge: EUR 249.6 million,

–        Gyproc: EUR 4.32 million. (7)

6.        As regards the fine imposed on the appellant, at paragraphs 495 to 499 of the contested decision, the Commission stated:

‘(495) It is established that Knauf [group] actively participated in all the anticompetitive conduct described in this Decision and that [Knauf group’s high level representatives], [Mr B and Mr C,] were personally involved in that conduct.

(496) The Decision is addressed to Knauf Westdeutsche Gipswerke in view of the particular structure of the Knauf group. The Commission is unable to identify one individual at the head of the group of companies constituting the undertaking. Consequently, there is not one legal entity which, at its head, could, as the body charged with coordinating the group’s activities, be held responsible for the infringements committed by the various companies composing it.

(497) Knauf Westdeutsche Gipswerke, of which [Mr B] and [Mr C] are [high level representatives], is the most representative company in that undertaking. In particular, as regards Gebrüder Knauf Verwaltungsgesellschaft KG, the function of which is to administer other companies of the Knauf group, it must be noted that it is dependent, at least partly, on Knauf Westdeutsche Gipswerke both for its premises and for its staff.

(498) In those circumstances, and in order that matters of pure form do not stand in the way of a finding of conduct on the plasterboard market by Knauf [group] for purposes of the application of the competition rules, the Commission considers that Knauf Westdeutsche Gipswerke must be held responsible for all the actions of Knauf [group]. Knauf Westdeutsche Gipswerke has not objected to the fact that the Commission sent it the statement of objections, despite the fact that this made clear that the Commission intended to hold it responsible for all of Knauf’s conduct.

(499) The Commission considers that, with a view to the possible imposition of a fine […], the turnover to be taken into account for the purposes of this Decision is that of the “undertaking” within the meaning of Article 81(1) of the Treaty, that is to say in this case the worldwide turnover achieved by all the companies of the Knauf group as communicated by Knauf to the Commission.’ (8)

7.        The Commission had also previously noted at paragraphs 38 and 39 of the contested decision:

‘(38) Founded in 1932 and having its head office and a large industrial plant at Iphofen, Bavaria (Germany), Knauf now comprises a number of private companies which are still owned by … or so shareholders belonging to the Knauf family. The company likes to present itself as the family-owned company, Knauf Westdeutsche Gipswerke: “The firm Gebr. Knauf Westdeutsche Gipswerke, Iphofen, founded in 1932, is at present not only one of the leading producers of building materials in Europe, but a group which operates worldwide and whose activities are not restricted to the production of gypsum-based materials. Despite its growth, Knauf remains a family-owned business, being owned by the Alfons and Karl Knauf families …”

(39) Knauf Westdeutsche Gipswerke is in fact the oldest of the companies in the Knauf group and employs a large number (more than 1 000) of the group’s employees; it is at present a limited partnership whose [high level representatives] are [Messrs B and C] … The company operates on the same premises and with the same staff as another company, Gebrüder Knauf Verwaltungsgesellschaft KG, which is also a limited partnership whose [high level representatives] are also [Mr B] and [Mr C] and whose function is to administer other companies in the Knauf group. It should also be noted that, in addition to having the same management, the two limited partnerships have exactly the same shareholding structure (the same individuals holding exactly the same share in the company capital). Gebrüder Knauf Verwaltungsgesellschaft KG has a very small number of employees, also on the Iphofen site.’

B –    Proceedings before the Court of First Instance

8.        By application lodged at the registry of the Court of First Instance on 13 February 2003, and registered as case T‑52/03, Knauf Gips KG sought the annulment of the contested decision in so far as that decision concerned it or, in the alternative, an appropriate reduction of the fine imposed on it by the contested decision and an order that the Commission pay the costs.

9.        In its action before the Court of First Instance, Knauf Gips KG raised eight pleas. By its first plea, Knauf Gips KG claimed that the contested decision infringes its rights of defence. Knauf Gips KG submitted, inter alia, that the contested decision is based on evidence which had not been made available to it despite its requests to that effect. Knauf Gips KG’s second plea was based on an infringement of Article 81(1) EC. By its third plea, Knauf Gips KG claimed an infringement of the concept of a single infringement. By its fourth plea, Knauf Gips KG claimed that the contested decision infringes Article 15(2) of Regulation No 17 with regard to the upper limit of the fine. By its fifth plea, Knauf Gips KG claimed that the contested decision infringed Article 253 EC and Article 15(2) of Regulation No 17 and the general principles of law by its assessment of the fine. By its sixth plea, Knauf Gips KG claimed that the Commission infringed the principle of equal treatment, because it did not reduce the fine imposed on it despite the fact that it had cooperated with the Commission to the same extent as BPB, whose fine was reduced by 30%. By its seventh plea, Knauf Gips KG claimed that the excessive length of the administrative procedure led to an infringement of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the principle of good administration. In its eighth and final plea Knauf Gips KG claimed an error in law and an error in assessment in the setting of the rate of interest applied for late payment of the fine.

10.      The Court of First Instance delivered its judgment on 8 July 2008 in which it dismissed the action brought by Knauf Gips KG. Knauf Gips KG was ordered to pay the costs.

IV –  Appeal procedure

11.      On 19 September 2008, the appellant lodged an appeal against the contested judgment. The appellant requests the Court to:

–        set aside the contested judgment in its entirety;

–        in the alternative, refer the case back to the Court of First Instance for a fresh decision;

–        in the further alternative, reduce the fine imposed on the appellant by Article 3 of the contested decision in an appropriate manner, and in any event by at least EUR 54.51 million;

–        order the Commission to pay the costs.

12.      The Commission contends that the Court should:

–        dismiss the appeal in its entirety;

–        order the appellant to pay the costs.

13.      The appeal against the contested judgment is based on three pleas. By its first plea on appeal, the appellant submits that its rights of defence were breached. By its second plea on appeal, the appellant submits that there was an infringement of Article 81(1) EC. By its third plea on appeal, the appellant submits that Article 15(2) of Regulation No 17 and Article 81 EC were infringed.

14.      A hearing was held on 22 October 2009.

V –  First ground of appeal: infringement of rights of defence

15.      The appellant submits that the Court of First Instance infringed its rights of defence due to the incorrect application of the rules concerning firstly, refusal of access to incriminating documents and secondly, refusal of access to exculpatory evidence.

A –    Refusal of access to incriminating documents

1.      Contested judgment

16.      At first instance, Knauf Gips KG submitted that the contested decision is largely based on incriminating evidence to which it did not have access despite requests in that regard.

17.      The Court of First Instance at paragraph 41 of the contested judgment confirmed that Knauf Gips KG did not have access during the administrative procedure before the Commission to the replies of the other addressees of the statement of objections. That court considered that since documents that have not been communicated to the parties concerned during the administrative procedure are not admissible evidence, it is necessary, if the Commission relied in the final decision on documents that were not in the investigation file and were not communicated to the applicant, to exclude those documents as evidence. If however there was other documentary evidence of which the parties were aware during the administrative procedure that specifically supported the Commission’s findings, the fact that an incriminating document not communicated to the person concerned was inadmissible as evidence would not affect the validity of the objections upheld in the contested decision. The Court of First Instance considered therefore that it is for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence. (9)

18.      The Court of First Instance noted at paragraph 49 of the contested judgment that Knauf Gips KG had merely listed, with a few exceptions, the passages in the contested decision in which the documents to which access was refused were mentioned. That court considered that such a listing was insufficient to satisfy the obligation on Knauf Gips KG laid down by the case-law in relation to undisclosed incriminating evidence. The Court of First Instance then proceeded to examine the alleged infringement of access to incriminating evidence in respect of those complaints expressly raised by Knauf Gips KG. (10) The Court of First Instance, upon examination of the documents in question, found that the finding of the Commission in the contested decision would not have been different if the documents in question had been removed from the file. The Court of First Instance stated however that it would examine the substance of the case eliminating, for the sake of completeness, all the incriminating elements resulting from the responses of the other addressees of the statement of objections in order to verify whether the assessment of the Commission concerning the existence and the effects of the infringement is sufficiently established even in the absence of such elements. (11)

2.      Argument

19.      The appellant contends that the Court of First Instance incorrectly refused to examine the examples of undisclosed evidence which the appellant had indicated. The appellant considers that where it cites the evidence in question and the passages of the contested decision which are exclusively based on that evidence, no additional indication is necessary in order to conclude that, if that evidence had been eliminated, at least those sections of the reasoning of the contested decision would have been different. Given that it is evident that the passages described by the appellant concerned the material aspect of the infringement as a whole, it is clear that the contested decision would have been totally different. The passages of the contested decision which were actually examined by the Court of First Instance (see paragraphs 51 to 63 of the contested judgment) are not decisive, given that the appellant’s rights of defence were already infringed due to reliance by the Commission in other passages of the contested decision on undisclosed incriminating evidence which was not examined by that court.

20.      The Commission considers that, given that the appellant’s complaint is directed only against the grounds of the contested judgment contained in paragraphs 49 and 50, that complaint cannot lead to that judgment being set aside. The grounds in question were included for the sake of completeness, as, in accordance with paragraph 63 of the contested judgment, the Court of First Instance did not take into account the evidence in question when it examined the substance of the contested decision. Moreover, the Commission considers that the appellant has not satisfied the requirements laid down by the Court in Aalborg Portland and Others v Commission (12) in relation to incriminating evidence. In accordance with that judgment, the Court requires the concerned party to demonstrate that the result at which the Commission arrived in its decision would have been different. The global reference made by the appellant to different passages of the contested decision in which the documents in question are merely mentioned is insufficient as otherwise it would require the Court of First Instance to demonstrate a causal link between the refusal of access to the evidence in question and the alleged infringement of the rights of the defence.

3.      Assessment

21.      I would note, firstly, that the appellant contests the findings of the Court of First Instance contained in paragraphs 49 and 50 of the contested judgment. No objection however is raised by the appellant to the detailed findings of the Court of First Instance contained in paragraphs 51 to 62 of the contested judgment in relation to the specific complaints raised by Knauf Gips KG concerning certain evidence.

22.      Moreover, contrary to the Commission’s assertion, the findings of the Court of First Instance at paragraphs 49 and 50 and indeed at paragraphs 51 to 62 of the contested judgment were not included for the sake of completeness, that quality having been explicitly ascribed by that court to its position contained in paragraph 63 of that judgment. Thus the settled case-law pursuant to which the Court rejects outright challenges directed solely against grounds included purely for the sake of completeness as they cannot result in the judgment under appeal being set aside (13) is not, in my view, of direct application to the plea at hand.

23.      As regards the appellant’s claim relating to the failure by the Court of First Instance to examine the examples of undisclosed evidence which the appellant had indicated, I consider that this claim is manifestly unfounded.

24.      Knauf Gips KG argues essentially that the Court of First Instance wrongly concluded that a listing of the passages in the contested decision in with undisclosed evidence was referred to was insufficient to satisfy the obligation laid down by the case-law which requires the interested party to demonstrate that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence.

25.      It is settled case-law that the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document. If there were other documentary evidence of which the parties were aware during the administrative procedure that specifically supported the Commission’s findings, the fact that an incriminating document not communicated to the person concerned was inadmissible as evidence would not affect the validity of the objections upheld in the contested decision. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence. (14)

26.      In my view, the Court of First Instance did not err in law by finding that a mere listing of the passages of the contested decision in which undisclosed evidence is mentioned is insufficient to discharge the clear burden imposed on the undertaking concerned pursuant to the Aalborg Portland and Others v Commission (15) case-law.

B –    Refusal of access to exculpatory evidence and infringement of the rights of defence concerning the exchange of information

27.      I shall deal in this section for the sake of convenience with the second and third part of the appellant’s first ground of appeal as both parts concern the second part of Knauf Gips KG’s first plea before the Court of First Instance relating to refusal of access to exculpatory evidence. (16)

1.      Contested judgment

28.      At paragraph 67 of the contested judgment, the Court of First Instance, citing Aalborg Portland and Others v Commission, stated that where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents in its defence, in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission’s assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine. The possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might – in the light of that evidence – have had a significance which ought not to have been disregarded. (17)

29.      After granting the appellant access to the non-confidential replies of the other producers to the Commission’s statement of objections, the Court of First Instance considered that even if Knauf Gips KG had been able to rely on those documents during the administrative procedure, the Commission’s assessment could not have been influenced by those documents. (18)

2.      Argument

30.      The appellant considers that the Court of First Instance incorrectly summarised at paragraph 65 of the contested judgment its claims in its application in Case T‑52/03 and comments contained in a separate document dated 7 July 2006 concerning the refusal of the Commission to allow it access to exculpatory evidence. The findings of that court at paragraphs 64 to 79 of the contested judgment thereby infringe the rights of defence of the appellant and are unfounded.

31.      The appellant also considers that the Court of First Instance incorrectly applied the case-law of the Court concerning exculpatory evidence. According to the appellant, it does not have to show that, if it had had access to the replies provided by the other producers to the statement of objections, the Commission decision would have been different in content, but only that it would have been able to use those documents for its defence. (19) The appellant considers that at paragraphs 70 to 78 of the contested judgment, the Court of First Instance incorrectly examined whether certain exculpatory evidence referred to by the appellant could have affected the result of the contested decision.

32.      In addition, the appellant contests the finding by the Court of First Instance pursuant to which BPB’s reply to the statement of objections does not contain any exculpatory evidence. (20) The appellant claims that in accordance with the general principles of evidence, the statements made by other interested parties are evidence. Moreover, the fact that the appellant has raised the same arguments does not change the nature of such statements by other interested parties.

33.      The appellant claims that the Court of First Instance failed to examine the statement in point 4.1.16 of BPB’s reply that the London meeting was at most a spontaneous discussion. The Court of First Instance also failed to examine BPB’s statement at 4.2.3 of its reply that the figures exchanged between BPB and its competitors did not enter the BPB planning process. Moreover, the Court of First Instance did not examine the importance of the evidence concerning the establishment of the existence of the meetings in Brussels and The Hague in 1997 and 1998 which followed the alleged first meeting in Versailles. Knauf Gips KG, in a document dated 7 July 2006, stated that it is clear from points 4.3.28 and 4.3.34 of BPB’s reply that no anti-competitive agreement was reached at the Versailles meeting. As regards the meetings in Brussels and The Hague, the Commission simply concluded that the parties followed the alleged agreement reached at Versailles. However, points 4.3.28 and 4.3.34 of BPB’s reply concerning the Versailles meeting could have been used to demonstrate that the conclusion concerning the meetings in Brussels and The Hague was unfounded.

34.      The Commission raises again an argument which it raised before the Court of First Instance and which was not addressed by that court. The Commission notes that it annexed to its refusal to grant access to the appellant to the replies of the other producers to the statement of objections an indication of the remedies available to the appellant. Given that the appellant did not seize the hearing officer on the matter and thus failed to exhaust the remedies available to it during the administrative procedure, the appellant implied that it would not follow-up on its request. The Commission therefore considers that given that the right of access to the file should have been dealt with during the administrative procedure, the appellant had no right to claim an infringement of the rights of the defence before the Court of First Instance.

35.      The Commission considers that the Court of First Instance correctly applied the test laid down in Aalborg Portland and Others v Commission (21) concerning exculpatory evidence. The Commission also considers that the contested judgment does not distort the arguments of the appellant.

36.      The Commission considers that the appellant’s claims at point 31 above are inadmissible as the appellant is simply reproducing the arguments which it raised before the Court of First instance and is seeking a new assessment of its claims by the Court. Moreover, the appellant has not demonstrated how the undisclosed evidence in question would have been helpful for its defence. The Commission also considers that the appellant’s claim at point 33 above is materially incorrect.

3.      Assessment

37.      I shall deal firstly with the claim of the Commission raised at point 34 above. The Commission argues in effect that the second and third part of the appellant’s first ground of appeal are estopped as the appellant failed to exhaust all the remedies available to it concerning access to the documents in question during the administrative procedure before the Commission.

38.      I consider that that argument should be rejected. Firstly, the Commission has not established that the appellant actively misled it or failed to act in good faith with regard to the undisclosed documents in question during the administrative procedure. The mere failure of the appellant to exhaust its remedies before the Commission could not have inappropriately induced any misapprehension on the part of the Commission that the appellant would not follow up on its request of access to the documents in question before the Community courts. (22) Secondly, in the absence of any legislative provision which specifically requires an interested party to exhaust the remedies available to it during the administrative procedure before the Commission, I consider that the imposition of such a requirement by the Court would inappropriately limit the rights of defence of that party and deny it full access to justice. (23)

39.      As regards the claim by the appellant referred to at point 30 above to the effect that paragraph 65 of the contested judgment incorrectly summarised its arguments, it should be noted that those exact arguments were contained in point 43 of the Judge-Rapporteur’s report for the hearing before the Court of First Instance, that hearing having been held on 23 January 2007.

40.      According to the case-law of the Court, the purpose of the Judge-Rapporteur’s report is to present in summary form the elements of fact and law in the case and the pleas and arguments of the parties, and it is open to the parties before or during the hearing to ask for corrections to be made or to express reservations. Moreover, the judges of the Court of First Instance who took part in the deliberations had access throughout the procedure to all the documents which made up the case-file. (24)

41.      In Case T‑52/03, the Judge-Rapporteur’s report was sent to the parties by the registry of the Court of First Instance on 11 December 2006 and the parties were invited to submit observations on that report prior to the hearing. Contrary to the Commission, which on 15 January 2007 submitted written observations on the report in question, Knauf Gips KG did not submit any observations. Moreover, at the hearing on 23 January 2007, Knauf Gips KG did not raise any objection to the summary of its claims and arguments contained in the Judge-Rapporteur’s report. The absence of such an objection is reflected in the minutes of the hearing drawn up by the Registrar pursuant to Article 63 of the Rules of Procedure of the Court of First Instance which were signed by the President and by the Registrar and which constitute an official record.

42.      In the absence of any objection on the part of Knauf Gips KG to the Judge-Rapporteur’s report in Case T‑52/03 and given that the formation of the Court of First Instance had access throughout the procedure to all the documents which made up the case-file in that case, I consider that the appellant’s claim referred to at point 30 above should be dismissed.

43.      Moreover, for the sake of completeness, I would stress that it is clear from the findings of the Court of First Instance at paragraphs 68 to 77 of the contested judgment that that court examined in detail the claims raised by Knauf Gips KG (25) concerning the Commission’s refusal to grant it access to exculpatory evidence.

44.      As regard the appellant’s claim that the Court of First Instance incorrectly applied the case-law of the Court concerning exculpatory evidence, it is sufficient for the undertaking to show that it would have been able to use the exculpatory documents in its defence, in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission’s assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine. The possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might – in the light of that evidence – have had a significance which ought not to have been disregarded. (26)

45.      The Court of First Instance specifically referred to the above case-law on undisclosed exculpatory evidence at paragraph 67 of the contested judgment. Moreover, at paragraph 78 of the contested judgment, the Court of First Instance found that if Knauf Gips KG had had access to the documents in question during the administrative procedure, the Commission’s assessment could not have been influenced by those documents.

46.      I would note that despite the overall finding of the Court of First Instance at paragraph 78 of the contested judgment, the wording of paragraph 74 of the contested judgment in which that court states that point 4.2.1 of BPB’s reply ‘could not have changed the final result’ is rather inapt in the context of exculpatory evidence and is somewhat reminiscent of the case-law applicable to undisclosed incriminating evidence. (27) However, in my view, the use of such terminology is not such as to invalidate the contested judgment. I consider that a mere statement, without any supporting evidence, by another party to a cartel in which it seeks to deny the anti-competitive object or effect of an exchange of information cannot constitute exculpatory evidence.

47.      Consequently, I consider that the claim referred to at point 31 above should be rejected.

48.      As regards the appellant’s claims at points 31 and 32 above in which it contests the finding by the Court of First Instance that certain sections of BPB’s reply to the statement of objections do not contain exculpatory evidence, it should be borne in mind that the appraisal of the facts by the Court of First Instance does not – save where the clear sense of the evidence produced before it is distorted – constitute a question of law which is subject, as such, to review by the Court. (28)

49.      In my view, the assessment carried out by the Court of First Instance at paragraphs 69 to 78 of the contested judgment concerned whether the sections of BPB’s reply to the Commission’s statement of objections constituted exculpatory evidence and could have been used by Knauf Gips KG for its defence. It therefore concerned a question of fact. (29) In the absence of any claim that the Court of First Instance distorted the facts, the appellant’s complaint against the assessment by the Court of First Instance must, in my view, be rejected as inadmissible.

50.      As regards the claim referred to at point 33 above that the Court of First Instance failed to examine Knauf Gips KG’s claims concerning point 4.1.16 of BPB’s reply, I consider that it cannot be upheld. The main import of point 4.1.16 of BPB’s reply to the statement of objections is that ‘competition remained intense across the various European markets’ despite the ‘alleged undertaking’ reached at the London meeting. The issue of continued competition was in fact addressed by the Court of First Instance at paragraphs 72 and 75 of the contested judgment. The claim that the Court of First Instance failed to examine Knauf Gips KG’s submission concerning point 4.2.3 of BPB’s reply to the statement of objections which provided that the figures exchanged between BPB and its competitors did not enter the BPB planning process must, in my view, be rejected in the light of paragraph 74 of the contested judgment. Paragraph 74 of the contested judgment specifically assesses the claim by BPB that the information exchanged was only known by Mr [D], director of Gyproc and Chief Executive Officer of BPB.

51.      In addition, it is clear from paragraph 76 of the contested judgment that the Court of First Instance examined points 4.3.28 and 4.3.34 of BPB’s reply concerning the Versailles meeting and found that their contents did not constitute exculpatory evidence. Given that Knauf Gips KG’s claim concerning the meetings in Brussels and The Hague in 1997 and 1998 respectively was dependent on a finding by the Court of First Instance that points 4.3.28 and 4.3.34 of BPB’s reply concerning the Versailles meeting constituted exculpatory evidence, I consider that that court did not incorrectly fail to address Knauf Gips KG’s claim concerning the meetings in Brussels and The Hague.

52.      I therefore consider that the Court should reject the first ground of appeal in its entirety.

VI –  Second ground of appeal: infringement of Article 81 EC

A –    Argument

53.      The appellant claims that paragraphs 140 to 298 of the contested judgment are without sufficient material basis as the Court of First Instance based its finding of an infringement of Article 81(1) EC on undisclosed incriminating evidence. Moreover, the Court of First Instance did not respect its assertion at paragraph 63 of the contested judgment that it would not take into account the evidence in question when it examined the substance of the contested decision.

54.      The appellant submits that, even taking into account illegal evidence, the finding of the Court of First Instance in respect of the five elements of the infringement by the appellant does not support a finding of an infringement of Article 81(1) EC. According to the Court of First Instance the infringement in question was composed of five parts, namely, the meeting in London in 1992, the exchange of information concerning sale quantities in Germany, France, Benelux and the United Kingdom from 1992 to 1998, the exchange of information on price increases in the United Kingdom from 1992 to 1998, the agreements on market shares in Germany (Versailles, Brussels and The Hague meetings) from June 1996 and the agreement on price increases in Germany from 1996. However, on the basis of the findings of fact of the Court of First Instance, none of those situations fulfils the criteria for finding an infringement pursuant to Article 81(1) EC. The appellant also criticises various aspects of the ruling of the Court of First Instance in relation to the five elements or manifestations contained in paragraphs 140 to 298 of the contested judgment.

55.      The Commission considers that the appellant’s second ground of appeal is inadmissible as the appellant merely criticises the findings of fact of the Court of First Instance. The Commission also notes that the appellant does not contest the existence of a single, continuous infringement on which the contested decision is based. The appellant’s second ground of appeal is based on the concept that none of the parts or elements of the infringement, which, considered together, constitute the infringement, infringe in themselves Article 81 EC. The appellant thus misconstrues the essential point of the contested decision and the Court of First Instance’s assessment of the evidence. The Court of First Instance, referring to Aalborg Portland and Others v Commission, (30) considered that 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. The Court of First Instance held that that case-law is transposable to the concept of a single continuous infringement as each manifestation corroborates the existence of such an infringement.

56.      The Commission also considers that the appellant’s claim at point 53 above is inadmissible as the appellant failed to identify the sections of the contested judgment which it criticises and merely refers summarily to paragraphs 140 to 298 of the contested judgment.

B –    Assessment

57.      It is clear from paragraph 299 of the contested judgment that Knauf Gips KG claimed before the Court of First Instance that it could not be charged with participation in a single infringement over a lengthy period thereby leading to a reduction in gravity of the infringement and to the prescription of isolated facts that allegedly took place more than five years before the beginning of proceedings.

58.      The Court of First Instance found at paragraph 306 of the contested judgment that it is clear from paragraph 479 of the contested decision ‘that the set of agreements and concerted practices in the present case form part of a series of actions by the undertakings in question pursuing a single economic aim, namely the restriction of competition, and constitute the various manifestations of a complex, continuous agreement the object and effect of which was to restrict competition. In view of the fact that the abovementioned agreements and concerted practices gave, without interruption from 1992 until 1998, substantive shape to the parties’ common wish to stabilise, and hence restrict competition on, at least the German, French, UK and Benelux plasterboard markets, the Commission characterises the infringement as single, complex and continuous.’ Thus Article 1 of the contested decision provides, inter alia, that the appellant ‘infringed Article 81(1) of the Treaty by participating in a set of agreements and concerted practices in the plasterboard business’. (31) Applying the case-law in Aalborg Portland and Others v Commission (32) the Court of First Instance rejected Knauf Gips KG’s plea against the qualification of the practices in question as a single, continuous infringement. (33)

59.      The appellant has not called into question that finding of the Court of First Instance on the existence of a single, continuous infringement of Article 81(1) EC in the present appeal. Rather the appellant seeks to demonstrate that none of the individual five elements or manifestations of the infringement support, in isolation, a finding of an infringement of Article 81(1) EC. Given that the contested decision and indeed the contested judgment are premissed on the existence of a single, continuous infringement, albeit made up of different elements, I consider that it is of no avail for the appellant to claim that those individual elements, viewed in isolation, do not constitute an infringement of Article 81(1) EC. The claim in question should therefore, in my opinion, be rejected.

60.      Moreover, given that the appellant has failed to specifically identify the elements of incriminating evidence allegedly invoked by the Court of First Instance in its finding at paragraphs 140 to 298 of the contested judgment, I consider that that claim should be rejected as inadmissible due to vagueness.

61.      I therefore consider that the Court should reject the second ground of appeal.

VII –  Third ground of appeal: infringement of Article 15 of Regulation No 17 and Article 81 EC

A –    Argument

62.      The appellant claims that the Court of First Instance infringed Article 15 of Regulation No 17 by taking into account the turnover of the companies within the Knauf group when calculating the 10% upper limit imposed by that provision. It considers that the Court of First Instance erred in law in finding that the appellant formed an economic unit with the other companies in the Knauf group and by considering that the appellant was responsible for the actions of the Knauf group.

63.      The appellant considers that at paragraph 348 of the contested judgment, the Court of First Instance failed to act with objectivity and impartiality. The appellant contests the finding of the Court of First Instance that Gebrüder Knauf Verwaltungsgesellschaft KG benefited from the infringement in question.

64.      The appellant claims that the Court of First Instance incorrectly considered that it together with Gebrüder Knauf Verwaltungsgesellschaft KG and its subsidiaries constitute an economic unit.

65.      The appellant contests the nine factors on which the Court of First Instance based its finding of an economic unit. The appellant considers that Stora Kopparbergs Bergslags v Commission (34) is not applicable as the appellant is not controlled by another company. Moreover, the appellant does not hold any shares in the companies related to Gebrüder Knauf Verwaltungsgesellschaft KG. The appellant considers that the case-law relating to commercial agents (35) referred to at paragraphs 350, 351 and 355 of the contested judgment is also not applicable. The appellant considers that HFB and Others v Commission, (36) referred to at paragraphs 343 to 346 of the contested judgment, is also not applicable as in that case the finding of an economic unit was based on the fact that all the shares in the different companies were held by the same person. In the case at hand, the appellant and Gebrüder Knauf Verwaltungsgesellschaft KG are held by 22 shareholders each of which has a minority shareholding.

66.      A finding of an economic unit may also not be based on the joint control of the appellant and the other companies by the many shareholders belonging to the Knauf families. A finding of joint control is excluded where shifting or varying majorities are possible among the shareholders. The Court of First Instance in Baustahlgewebe v Commission (37) and the Commission in its decision in that case, found that there was no economic unit in a case concerning four minority shareholders. The family contract mentioned at paragraph 349 of the contested judgment did not place the companies in question under joint control.

67.      The appellant considers that the contested judgment is contrary to the case-law of the Court, in particular Aristrain v Commission, (38) in which the Court found that the simple fact that the share capital of two separate commercial companies is held by the same person or the same family is insufficient, in itself, to establish that those two companies are an economic unit with the result that, under Community competition law, the actions of one company can be attributed to the other and that one can be held liable to pay a fine for the other.

68.      The appellant considers that there are no other legal reasons which justify the finding of an economic unit. The fact that the same two shareholders managed all the Knauf companies is irrelevant (paragraph 345 of the contested judgment). At paragraph 346 of the contested judgment, the Court of First Instance stated that there is no evidence that the two Knauf cousins Mr [B] and Mr [C] did not represent the Knauf group within the framework of the different manifestations of the infringement. The appellant claims that the statement of the Court of First Instance infringes the principle of in dubio pro reo. Moreover, the fact that the same persons represent different companies does not imply that the companies are not autonomous from a competition perspective. The appellant also considers that the finding at paragraph 346 of the contested judgment that the sales figures exchanged in the course of the infringement related to the different companies in the Knauf group does not indicate anything with regard to the structural relations between the participants or the companies concerned by the exchange and thus the existence of an economic unit. In addition, the appellant considers that the finding at paragraph 347 of the contested judgment that the existence of an economic unit is also based on the fact that Knauf Gips KG, following a request, sent the Commission, in addition to its own turnover figures, the turnover figures of the other companies within the Knauf group, is legally ineffective. The information in question was sent following inspections and in order to avoid the Commission considering that the disclosure was unsatisfactory. The appellant considers that the statement at paragraph 356 of the contested judgment in support of the finding of an economic unit is contradictory. The fact that the appellant is the only company which is not managed by Gebrüder Knauf Verwaltungsgesellschaft KG does not explain why the fine has been imposed on the appellant and not on Gebrüder Knauf Verwaltungsgesellschaft KG. It is not clear why the appellant should be considered as an economic unit with Gebrüder Knauf Verwaltungsgesellschaft KG given that the appellant is independent of the latter. The appellant contests the finding at paragraph 357 of the contested judgment to the effect that as ‘most’ of the documents found during inspections were on its headed notepaper the appellant represents the Knauf group. The appellant considers that a rule of interpretation which concludes that the person who produces ‘most’ of the documents automatically ‘represents’ the other participants in the infringement is not supported by the legal systems of the Member States or by Community cartel law. Moreover, it is not clear how the Commission selected the documents in question from all the documents available during the investigation. The appellant considers that the statement at paragraph 357 of the contested judgment that there is no doubt that the appellant coordinates the operational activities of the Knauf group on the relevant market is diametrically opposed to the statement at paragraph 337 of the contested judgment that there is ‘consequently not one legal entity which, at its head, could, as the body charged with coordinating the group’s activities, be held responsible for the infringements committed’. The statement at paragraph 358 of the contested judgment that the appellant was the sole interlocutor with the Commission during the administrative procedure is not legally conclusive and stems from the fact that in the letter accompanying the statement of objections of 19 April 2001, the Commission opened a formal procedure only against the appellant despite the fact that inspections also took place at other companies. The appellant claims that its lawyers replied to the statement of objections in the appellant’s name and on its behalf.

69.      The appellant also contests the statements at paragraphs 359 and 360 of the contested judgment in accordance with which the appellant, during the administrative procedure, should have objected to the Commission’s supposition of the existence of an economic unit in order not to be estopped from doing so. The appellant considers that those statements infringe the principle of in dubio pro reo. Given that the statement of objections was only addressed to the appellant, the appellant only pleaded on its own behalf. The statement of objections did not indicate that the appellant would be held responsible for the other companies with the Knauf name.

70.      The Commission considers that the Court of First Instance came to its finding of the existence of an economic unit on the basis of a number of elements (paragraph 342 of the contested judgment) including in particular the fact that in the course of the infringement the Knauf cousins represented the whole of the Knauf group, the fact that the sales figures exchanged during the course of the infringement related to all the Knauf companies active on the plasterboard market (paragraph 346 of the contested judgment) and the fact that the shares of the companies within the Knauf group held by the holding company Gebrüder Knauf Verwaltungsgesellschaft KG were administered by the latter on behalf of the family company which held and controlled it. The statement at paragraph 348 of the contested judgment must be viewed in context. Given that context, the Court of First Instance has not shown itself to be biased. Indeed, if it is established that the Knauf cousins represented the whole group in the infringement, it is clear that all the Knauf companies benefited from the infringement.

71.      The Commission notes that the Court of First Instance did not refer to the Stora Kopparbergs Bergslags v Commission (39) case-law but to the general principles governing the existence of an economic unit. Stora Kopparbergs Bergslags v Commission (40) and the case-law concerning commercial agents are cases of specific application of the general principles in question. In any event, it is possible in this case to draw a parallel with the Stora Kopparbergs Bergslags v Commission (41) case-law even if it is not directly applicable. The Court of First Instance found that the companies within the Knauf group were controlled by the Knauf family in accordance with the family contract which ensured that the whole group fell under single management. The Knauf cousins managed all the companies within the group including the two parent companies and they represented all the Knauf companies active on the plasterboard market within the framework of the infringement. The Commission considers that the appellant’s claims concerning HFB and Others v Commission (42) are not relevant. At paragraphs 342 and 343 of the contested judgment the Court of First Instance stated that the existence of an economic unit must be assessed on a case-by-case basis and it is possible (as in HFB and Others v Commission) to find that an economic unit exists on the basis of a series of elements which demonstrate a relationship of control. The Court of First Instance saw a parallel between HFB and Others v Commission and the present case in the control that the Knauf family company exercises over the Knauf group, the key position of the Knauf cousins, the manner in which they present themselves as representatives of the Knauf group and the fact that the sales figures exchanged during the infringement related to the whole group. The Court approved such criteria in its judgment in Dansk Rørindustri and Others v Commission. (43)

72.      The Commission considers that the appellant’s observations on the possibility of fluctuating majorities amongst the shareholders contradict the family contract which guarantees a single management and the single, concentrated exercise of shareholder rights. Moreover, the Commission considers that the fact that there are fluctuating majorities amongst the shareholders is irrelevant as in accordance with the family contract there are two decision-making organs which exercise control over the Knauf group (together with the management of the two Knauf cousins of the whole group) and guarantee that the group acts on the market as a single unit. The control exercised by the family company was confirmed by the appellant in its response of 19 September 2002 to a question of the Commission (paragraph 347 of the contested judgment).

73.      The Commission considers that the contested judgment does not contradict the finding of the Court in Aristrain v Commission. (44) The finding of the contested judgment on the existence of an economic unit is not simply based on the fact that the two parent companies within the Knauf group have identical shareholders. The Commission also claims that the different circumstances established by the Court of First Instance prove the existence of an economic unit. In that regard the Commission stresses the position of the Knauf cousins as managing shareholders who ensured the single management of the group (paragraph 345 of the contested judgment). The Knauf cousins were personally implicated in the infringement and the group’s competitors considered their actions as those of the Knauf group (paragraph 346 of the contested judgment). Moreover, the Commission notes that the appellant does not contest the fact that the sales figures exchanged within the framework of the infringement concerned all the Knauf companies active on the plasterboard market. The aggregation of the sales figures demonstrated that the whole Knauf group is represented by the Knauf cousins (or the appellant). As regards the appellant’s statement relating to the forwarding of its turnover and that of the other companies within the Knauf group to the Commission, the Commission notes that the information was forwarded after the statement of objections had been sent. The statement of objections only mentions the appellant as the addressee. The Court of First Instance correctly found that the fact that the appellant furnished, of its own volition, the turnover of the Knauf group and those Knauf companies active on the plasterboard market is additional evidence that the appellant itself considered that there existed an economic unit and that it represented all the Knauf companies which produce plasterboard.

74.      The Commission considers that the appellant’s arguments concerning the assessment by the Court of First Instance of its particular role within the Knauf group (paragraph 354 of the contested judgment) are irrelevant as the appellant only contests the existence of an economic unit. The following remarks are thus ancillary in nature.

75.      The Commission stresses the particular position of the appellant as the Knauf company responsible for the infringement. The Commission notes that the appellant is one of the two parent companies within the group. Contrary to Gebrüder Knauf Verwaltungsgesellschaft KG, the appellant is not a mere holding company and the former depends on the appellant for certain resources. Gebrüder Knauf Verwaltungsgesellschaft KG as a mere holding company could not be held responsible for the actions of the group (paragraphs 348 and 355 of the contested judgment), that responsibility lies with the appellant. The Court of First Instance found at paragraphs 346 and 357 of the contested judgment that the appellant coordinated the operational activities of the Knauf group on the relevant market. That finding does not conflict with the statement at paragraph 361 of the contested judgment that it is not possible to identify any legal entity which, at its head, coordinates the group’s activities. Even though the appellant is only one of two parent companies, it had a coordinating role due in particular to the fact that it was used by the Knauf cousins as an instrument to manage the undertaking.

76.      As regards the appellant’s claims at point 69 above concerning estoppel, the Commission considers that the appellant both before and after the notification of the statement of objections acted in the name of the other Knauf companies. The Commission considers that the Court of First Instance’s statements at paragraphs 359 and 360 of the contested judgment must be viewed in the context of the statement at paragraph 358. During the administrative procedure the appellant stated that it had a leading role within the Knauf undertaking and thus gave the impression to the Commission that it was at the head of the group. The Commission therefore notified the statement of objections to the appellant and not to the other companies within the group, while nonetheless indicating that the infringement concerned the Knauf group (paragraph 359 of the contested judgment).

B –    Assessment

77.      In my view, the appellant’s claim that the Court of First Instance, at paragraph 348 of the contested judgment, failed to act with objectivity and impartiality, is wholly unsubstantiated and unfounded. The mere fact that the Court of First Instance’s finding of fact in that paragraph differs from the appellant’s claims by no means indicates any lack of objectivity and impartiality on the part of that court. Moreover, as was pointed out by the Commission, it is clear, in particular from paragraphs 344 to 347 of the contested judgment, that the finding of the Court of First Instance in paragraph 348 of the contested judgment that Gebrüder Knauf Verwaltungsgesellschaft KG and its subsidiaries benefited from the infringement in question was based on a number of considerations which were examined and assessed by that court and was thus not reached in the abstract.

78.      Furthermore, the finding of the Court of First Instance that Gebrüder Knauf Verwaltungsgesellschaft KG and its subsidiaries benefited from the infringement in question constitutes an assessment of facts which, in the absence of any distortion of the clear sense of the evidence, falls pursuant to Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice within the exclusive jurisdiction of the Court of First Instance. (45)

79.      The Court of First Instance examined in the context of Knauf Gips KG’s plea concerning the infringement of Article 15 of Regulation No 17 firstly, whether the Knauf group constituted an economic unit for the purposes of competition law and secondly, whether Knauf Gips KG was responsible for the coordination of the actions of the Knauf group. In my view and contrary to the submission of the Commission at point 74 above, the appellant has challenged, in the course of the appeal proceedings before this Court, the findings of the Court of First Instance on both the aforementioned matters.

80.      On the question of the existence of an economic unit, it is settled case-law that Community competition law refers to the activities of undertakings, and that the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. The Court has also stated that the concept of an undertaking, in the same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal. (46) Thus, in my view, the assessment of whether a group of companies constitutes an economic unit is not a matter of legal form but requires a case-by-case analysis, close attention being paid to the specific facts of each individual case. Moreover, I would note that the existence of an economic unit may be found on the basis of a number of different facts, none of which would individually substantiate such a finding.

81.      As regards the appellant’s claim that the Stora Kopparbergs Bergslags v Commission (47) case-law is not applicable, I would note firstly that the Court of First Instance did not rely in the contested judgment on that case in its assessment of the existence of an economic unit. In addition, the fact that the appellant does not in parallel with the specific facts of Stora Kopparbergs Bergslags v Commission, inter alia, control 100% of the shares of another company does not, in my view, prevent a finding on other grounds that the appellant forms part of an economic unit for the purposes of competition law.

82.      Moreover, while the Court of First Instance did cite case-law relating to commercial agents at paragraphs 350, 351 and 355 of the contested judgment and cited HFB and Others v Commission (48) at paragraph 343 of the contested judgment, there is no indication that the Court of First Instance considered that the specific facts of those cases were replicated in the present case. (49) The Court of First Instance merely sought to highlight, in general terms, a number of factors which may give rise to a finding of an economic unit.

83.      As regards the appellant’s claims at point 66 above, I would note that in Baustahlgewebe v Commission the Court of First Instance assessed whether agreements must be regarded as an agreement internal to a group and thus not caught by Article 81(1) EC. The Court of First Instance found in that case that Article 81 EC does not apply to agreements and concerted practices between undertakings belonging to a single group as parent company and subsidiary if those undertakings form an economic unit within which the subsidiary has no real freedom to determine its course of action on the market. Such a situation does not exist where an undertaking exercises no control over another other than that deriving from a holding in its capital which falls far short of a majority interest. (50)

84.      In Baustahlgewebe v Commission, the Court of First Instance found on the facts that the actual degree of control which was exercised by Arbed over Baustahlgewebe corresponded to its percentage holding in the capital thereof, namely 25.001%, which falls far short of a majority interest. The Court of First Instance found that such a holding does not justify the conclusion that the companies in question belonged to a group within which they formed an economic unit with the result that an agreement between those two undertakings restricting competition would not be caught by Article 81(1) EC.

85.      In my view, it is clear that the Court of First Instance in Baustahlgewebe v Commission (51) did not base its finding on absence of control solely on the numerical percentage shareholding of Arbed in Baustahlgwebe, but examined the actual level or degree of control in question and found that it was insufficient. The actual reality rather than mere form was thus, in my view, correctly favoured by the Court of First Instance. I consider therefore that the mere legal possibility of fluctuating majorities within the Knauf group of companies, including the appellant and Gebrüder Knauf Verwaltungsgesellschaft KG, due to the existence of 22 shareholders does not per se exclude a finding of an economic unit.

86.      I also consider that the appellant has failed to demonstrate that the contested judgment is contrary to the judgment of the Court in Aristrain v Commission. (52) In that case, the Court found that the simple fact that the share capital of two separate commercial companies is held by the same person or the same family is insufficient, in itself, (53) to establish that those two companies are an economic unit with the result that, under Community competition law, the actions of one company can be attributed to the other and that one can be held liable to pay a fine for the other. (54) It is clear from the extensive findings of the Court of First Instance at paragraphs 337 to 362 of the contested judgment that that court did not base its finding on the existence of an economic unit on the basis of one simple, isolated fact. (55) Indeed the appellant itself in its appeal objected to the ‘nine’ grounds (56) on which the Court of First Instance based its finding concerning the existence of an economic unit.

87.      In my view, contrary to the claim of the appellant at point 68 above, the Court of First Instance has at paragraphs 344 to 350 of the contested judgment listed a number of facts which, taken together rather than in isolation, lead to the conclusion that the companies owned by the Knauf family constitute an economic unit for the purposes of Article 81(1) EC.

88.      It is clear from the contested judgment that all the companies within the Knauf group have the same 22 shareholders which are made up of the two branches of the Knauf family (57) and that all those companies were managed by the same two Knauf cousins. (58)

89.      The Court of First Instance also found at paragraph 346 of the contested judgment that there is no evidence that the two Knauf cousins did not represent the Knauf group within the framework of the infringement and it is uncontested that the sales figures exchanged during the infringement in question related to all the companies in the Knauf group active on the plasterboard market. I consider that the Court of First Instance did not infringe the principle of in dubio pro reo by its statement regarding the absence of any evidence which would indicate that the Knauf cousins did not represent the Knauf group during the infringement in question. The Court of First Instance merely stated that the evidence points to the representative role of the Knauf cousins and that no evidence has been presented to indicate otherwise. There is no indication that the Court of First Instance had any hesitation regarding the probative value of the evidence actually available to it. Moreover, in my view, the fact that the sales figures exchanged related to all the companies in the Knauf group active on the plasterboard market constitutes additional evidence which tends to indicate that those companies acted as an economic unit with a common interest. Contrary to the claim of the appellant at point 68 above, it is not necessary that such an exchange should demonstrate some formal structural link between the companies in question.

90.      At paragraph 347 of the contested judgment, the Court of First Instance also found that the appellant, in its response of 19 September 2002 to a request for information by the Commission pursuant to Article 11 of Regulation No 17, not only indicated its own turnover, as requested by the Commission, but also volunteered without being requested, inter alia, the turnover of all the companies within the Knauf group. I consider that the Court of First Instance rightly treated that fact as additional evidence that the companies belonging to the Knauf family constitute an economic unit with common interests. I do not find the appellant’s claim that it sent the information in question in order to avoid the Commission considering that the disclosure was unsatisfactory convincing. (59) The information in question was sent on 19 September 2002, more than one year after the Commission had specifically addressed the statement of objections, inter alia, to the appellant (60) on 18 April 2001. Given that the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person, (61) the appellant, when it forwarded the turnover figures in question on 19 September 2002 was fully aware that a fine could be imposed on it rather than on the other companies within the Knauf group. (62) The Court of First Instance also found that Gebrüder Knauf Verwaltungsgesellschaft KG was only a holding company without personnel which was managed by the same management as the appellant, on the same premises of the appellant. (63) In addition, the Court of First Instance at paragraph 349 of the contested judgment cited in extensio Article 1 of the Knauf family contract which seeks to ensure, inter alia, that the companies within the Knauf group are under a single management with a common purpose. (64)

91.      I consider therefore that the appellant has failed to demonstrate that the Court of First Instance erred in law in finding that the companies belonging to the Knauf family constitute an economic unit.

92.      As regards the levying of the fine on the appellant, it is settled case-law that the anti-competitive conduct of an undertaking can be attributed to another undertaking where it has not decided independently upon its own conduct on the market but carried out, in all material respects, the instructions given to it by that other undertaking, having regard in particular to the economic and legal links between them. (65)

93.      In addition, in my view it can be surmised from Aristrain v Commission that it may in certain circumstances be possible to impute to a company all of the acts of a group even though that company has not been identified as the legal person at the head of that group with responsibility for coordinating the group’s activities. (66)

94.      The Court of First Instance found that Knauf Gips KG was responsible for the actions of the Knauf group on the basis of a number of factors. (67)

95.      As an integral part of its reasoning on the matter the Court of First Instance noted at paragraph 359 of the contested judgment that the Commission considered in the statement of objections that the infringement concerned the whole Knauf group. In addition, according to that court, the appellant should have been aware from the statement of objections that it was likely to be the addressee of the Commission’s final decision. Despite this fact, the appellant replied to the Commission without putting in question its role as the company responsible for the actions of the group in the course of the infringement. The Court of First Instance, citing Akzo Nobel and Others v Commission (68) stated that in such a situation, the onus was on the appellant to react during the administrative procedure, or be faced with the prospect of no longer being able to do so, by demonstrating that, despite the factors relied on by the Commission, it could not be held liable for the infringement committed by the Knauf group. (69)

96.      I consider that the Court of First Instance erred in law by finding that unless the appellant reacted during the course of the administrative procedure it would be estopped from doing so before the Court of First Instance. In my view, in the absence of a finding by the Court of First Instance that the appellant actively misled the Commission or failed to act in good faith during the administrative procedure as to its role within the Knauf group, the mere failure of the appellant to contest during that procedure a particular position adopted by the Commission, and more specifically in the statement of objections, cannot limit the rights of defence of the appellant before the Court of First Instance and deny it full access to justice.

97.      It follows that the contested judgment must be set aside in so far as it found that Knauf Gips KG was responsible for the actions of the Knauf group and in dismissing Knauf Gips KG’s plea based on an infringement of Article 15(2) of Regulation No 17.

98.      Under Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court is to quash the decision of the General Court. It may then itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

99.      In the present case, I consider that the state of the proceedings is such as to permit final judgment in the matter. It therefore falls, in my view, to the Court to give final judgment on the appellant’s application for reduction of the fine imposed on it by the contested decision.

100. It should be noted that, in addition to its findings at paragraphs 359 and 360 of the contested judgment, the Court of First Instance also found at paragraph 356 of the contested judgment that the appellant was the only company active on the relevant market which was not managed by the holding company Gebrüder Knauf Verwaltungsgesellschaft KG. (70) In my view, that fact alone does not explain why the fine was imposed on the appellant.

101. However, the Court of First Instance had previously found at paragraph 348 of the contested judgment that Gebrüder Knauf Verwaltungsgesellschaft KG was only a holding company without personnel which was managed by the same management as the appellant, on the premisses of the appellant. These facts tend to demonstrate, in my view, that while the two companies are legally distinct, the appellant is in fact materially responsible for the coordination of the activities of the holding company Gebrüder Knauf Verwaltungsgesellschaft KG and therefore the other companies in the Knauf group held by the latter.

102. The Court of First Instance also stated at paragraph 357 of the contested judgment that most of the documents coming from the Knauf group found by the Commission during its investigation were on the headed note paper of the appellant. It is clear from Aalborg Portland and Others v Commission (71) that in the context of an investigation concerning a cartel, the evidence found by the Commission during its investigation is normally only fragmentary and sparse and it is often necessary to reconstitute certain details by deduction. I consider that such written evidence, despite the fact that it may, as claimed by the appellant, only be a cross-section of the documents actually available during the investigation is very compelling evidence of the coordinating or key role played by the appellant in relation to the operational activities of the Knauf group in the context of the infringement.

103. In my view, the finding at paragraph 358 of the contested judgment that the appellant was the sole interlocutor with the Commission during the administrative procedure is not, as claimed by the appellant, legally conclusive in itself. However, it does tend to indicate that the appellant plays a key role in the Knauf group in the context of the infringement, (72) a fact which is also corroborated, in my view, by the finding of the Court of First Instance at paragraph 347 of the contested judgment concerning the voluntary communication by the appellant of the turnover figures of all the companies within the Knauf group.

104. The appellant claims that its position as sole interlocutor stems from the fact that in the letter accompanying the statement of objections of 19 April 2001, the Commission opened a formal procedure only against the appellant despite the fact that inspections took place at other companies. In my view, that claim is not credible given that in its response to the statement of objections, which was ostensibly written on its behalf, the appellant in fact referred not only to its own behaviour and situation but also on a number of occasions to the behaviour of the Knauf group and other companies within the Knauf group. In addition, as claimed by the Commission, there is nothing to suggest that the reference at paragraph 358 of the contested judgment to the administrative procedure before the Commission is limited to the investigation following the notification of the statement of objections and does not cover the procedure which predated that notification.

105. In view of the facts referred to in points 100 to 104 of this opinion, I consider that the Court should find that the Commission did not make an error of assessment in finding that Knauf Gips KG was the company responsible for coordinating the Knauf group in the context of the infringement. It follows from the foregoing that the plea put forward by Knauf Gips KG in support of its application before the Court of First Instance, concerning infringement of Article 15(2) of Regulation No 17, is in my view unfounded and should, therefore, be rejected.

VIII –  Costs

106. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied in its pleadings for the appellant to be ordered to pay the costs, and the appellant has been unsuccessful, the appellant must be ordered to pay the costs. As regards the costs of the proceedings at first instance which led to the contested judgment, they should in my view be borne in the manner determined in paragraph 2 of the operative part of that judgment.

IX –  Conclusion

107. I therefore consider that the Court should:

–        set aside the judgment of the Court of First Instance of the European Communities (Third Chamber) of 8 July 2008 in Case T‑52/03 Knauf Gips v Commission in so far as that court held that Knauf Gips KG was responsible of the action of the Knauf group and dismissed its plea based on an infringement of Article 15(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty;

–        for the rest, dismiss the appeal;

–        dismiss the action for annulment brought by Knauf Gips KG before the Court of First Instance to the extent to which it is based on a plea in law alleging infringement of Article 15(2) of Regulation No 17;

–        order Knauf Gips KG to pay the costs of the present proceedings. The costs of the proceedings at first instance leading to the judgment of the Court of First Instance referred to in paragraph 1 of the operative part of this opinion should be borne in the manner set out in paragraph 2 of the operative part of that judgment.

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1 – Original language: English.

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2 – Knauf Gips v Commission.

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3 – OJ, English Special Edition 1959‑1962, p. 87.

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4 – OJ 2005 L 166, p. 8. See Article 1 of the contested decision.

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5 – In footnote 4 to the contested decision, the Commission stated that ‘Knauf’ means all the companies in the Knauf group.

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6 – See paragraph 2 of the contested decision.

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7 – See Article 3 of the contested decision.

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8 –      Internal citations omitted.

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9 – See paragraphs 45 to 47 of the contested judgment and the case-law cited therein.

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10 – See paragraph 50 et seq.

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11 – See paragraph 63 of the contested judgment.

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12 – 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 [2004] ECR I‑123.

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13 – See, to that effect, order in Case C‑137/95 P SPO and Others v Commission [1996] ECR I‑1611, paragraph 47; judgments in Case C‑362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I‑4775, paragraph 23; 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 106.

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14 – See Aalborg Portland and Others v Commission, cited in footnote 12, paragraphs 71 to 73 and the case-law cited therein.

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15 – Cited in footnote 12.

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16 – See paragraphs 67 to 78 of the contested judgment.

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17 – Aalborg Portland and Others v Commission, cited in footnote 12, paragraphs 74 to 76.

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18 – See paragraph 78 of the contested judgment.

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19 – See, in particular, Case C‑51/92 P Hercules Chemicals v Commission [1999] ECR I‑4235, paragraph 81.

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20 – See paragraphs 70 to 77 of the contested judgment.

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21 – Cited in footnote 12.

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22 – See by analogy Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraph 37. In addition, the Court stated in the Aalborg Portland and Others v Commission case (cited in footnote 12) at paragraphs 101 to 106, that in the context of an action brought before the Court of First Instance against the decision closing an administrative procedure, it is open to that court to order measures of organisation of procedure and to arrange full access to the file, in order to determine whether the Commission’s refusal to disclose or communicate a document may be detrimental to the defence of the undertaking concerned. As that examination is limited to a judicial review of the pleas in law, it has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure. It is common ground that belated disclosure of documents in the file does not put the undertaking which has brought the action against the Commission decision back into the situation it would have been in if it had been able to rely on those documents in presenting its written and oral observations to the Commission. Given both the different purpose and extent of the grant of access to the file before the Court of First Instance and the Commission, I do not consider that failure to exhaust all remedies during the administrative procedure should preclude the appellant from raising the matter of denial of access before the Community courts.

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23 – See by analogy Case T‑30/89 Hilti v Commission [1991] ECR II‑1439, paragraph 38. In addition, in the event that an applicant’s claim concerning the exculpatory nature of undisclosed documents were to prosper and it is established that that party failed to avail of a remedy during the administrative procedure to which it had effective access, the Court could consider any dilatory behaviour by that party if established when awarding the costs pursuant to Article 69(3) of the Rules of Procedure of the Court of Justice which provides, inter alia, that the Court may order a party, even if successful, to pay costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur.

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24 – Case C‑161/97 P Kernkraftwerke Lippe-Ems v Commission [1999] ECR I‑2057, paragraph 58.

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25 – In its application in Case T‑52/03 and in the separate document drawn up by Knauf Gips KG on 7 July 2006. See reference to the document in question at paragraph 68 of the contested judgment.

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26 – Aalborg Portland and Others v Commission, cited in footnote 12, paragraphs 74 to 76.

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27 – And which requires that undertaking to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence.

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28 –       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, paragraph 330.

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29 –      Limburgse Vinyl Maatschappij and Others v Commission, cited in footnote 28, paragraph 331.

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30 – Cited in footnote 12.

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31 – See paragraph 307 of the contested judgment.

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32 – See paragraph 309 of the contested judgment; case cited in footnote 12.

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33 – See paragraph 321 of the contested judgment.

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34 – Case C‑286/98 P [2000] ECR I‑9925.

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35 – Case T‑66/99 Minoan Lines v Commission [2003] ECR II‑5515.

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36 – Case T‑9/99 [2002] ECR II‑1487.

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37 – Case T‑145/89 [1995] ECR II‑987.

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38 – Case C‑196/99 P [2003] ECR I‑11005.

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39 – Cited in footnote 34.

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40 – Idem.

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41 – Idem.

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42 – Cited in footnote 36.

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43 – Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P [2005] ECR I‑5425.

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44 – Case cited in footnote 38.

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45 – Joined Cases C‑101/07 P and C‑110/07 P Coop de France bétail et viande and Others v Commission [2008] ECR I‑0000, paragraph 58; see also Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I‑0000, paragraph 52.

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46 – Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑0000, paragraphs 54 and 55.

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47 – Case cited in footnote 34.

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48 – Case cited in footnote 36.

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49 – Indeed it is clear from the wording of paragraph 343 of the contested judgment that HFB and Others v Commission was cited as an example (case cited in footnote 36).

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50 – Case cited in footnote 37, paragraph 107.

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51 – Case cited in footnote 37.

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52 – Case cited in footnote 38.

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53 – The terms ‘simple fact’ and ‘in itself’ are key in understanding the import of the Court’s ruling.

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54 – Idem, paragraph 99.

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55 – See paragraph 342 of the contested judgment in which the Court of First Instance itself confirmed that while the simple fact that the share capital of two separate commercial companies is held by the same person or the same family is insufficient, it may be possible to consider that there is an economic unit on the basis of a number of elements.

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56 – See point 65 above.

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57 – See paragraph 344 of the contested judgment.

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58 – See paragraph 345 of the contested judgment.

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59 – It also contradicts somewhat the appellant’s observations with respect to the finding of the Court of First Instance at paragraph 358 of the contested judgment and which is not disputed by the appellant that the latter was the sole interlocutor with the Commission during the administrative procedure.

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60 – No other company within the Knauf group was the addressee of the statement of objections although it is clear that the infringement referred to in the statement of objections concerned the Knauf group.

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61 – See Joined Cases C‑395/96 P and C‑396/96 P Compagnie maritime belge transports and Others v Commission [2000] ECR I‑1365, paragraphs 143 and 146, and Case C‑176/99 P ARBED v Commission [2003] ECR I‑10687, paragraph 21.

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62 – See the appellant’s claims at points 68 and 69 above.

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63 – See paragraph 348 of the contested judgment.

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64 – Article 1, entitled ‘Aim of the contract’, provides: ‘1. The aim of the present contract is to maintain the Knauf companies as family companies. 2. The aim of the present contract is to ensure a single management of the Knauf companies. 3. The aim of the present contract is to guarantee a single, concentratedexercise of rights in all the Knauf companies. 4. The aim of the present contract is to ensure that the decisions necessary for the future management, organisation and legal form of the company continue to be possible and cannot be impeded by a single shareholder or a small number of them’ (emphasis added).

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65 – See, in particular, Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 27.

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66 – See paragraphs 98 and 99 (case cited in footnote 38). It was not possible in that case to impute responsibility due to a lack of evidence.

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67 – See paragraphs 354 to 361 of the contested judgment.

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68 – Case T‑330/01 [2006] ECR II‑3389, paragraph 88.

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69 – See paragraph 360 of the contested judgment.

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70 – This fact is not disputed.

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71 – See paragraphs 55 to 57 (case cited in footnote 12).

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72 – See by analogy Akzo Nobel and Others v Commission, cited in footnote 46, paragraph 50.