29 September 2021 (*1)

(Competition – Agreements, decisions and concerted practices – Market for aluminium electrolytic capacitors and tantalum electrolytic capacitors – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Price coordination throughout the EEA – Concerted practice – Exchanges of sensitive business information – Territorial jurisdiction of the Commission – Restriction of competition by object – Statement of objections – Point 13 of the 2006 Guidelines on the method of setting fines – Value of sales – Obligation to state reasons – Proportionality – Equal treatment – Single and continuous infringement – Gravity of the infringement – Public distancing – Mitigating circumstances – Unlimited jurisdiction)

In Case T‑342/18,

Nichicon Corporation, established in Kyoto (Japan), represented by A. Ablasser-Neuhuber, F. Neumayr, G. Fussenegger and H. Kühnert, lawyers,

applicant,

European Commission, represented by B. Ernst, T. Franchoo, C. Sjödin and F. van Schaik, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for, primarily, annulment of Commission Decision C(2018) 1768 final of 21 March 2018 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.40136 – Capacitors), in so far as it concerns the applicant, and, in the alternative, a reduction in the amount of the fine imposed on the applicant by that decision,

THE GENERAL COURT (Ninth Chamber, Extended Composition),

composed of M.J. Costeira (Rapporteur), President, D. Gratsias, M. Kancheva, B. Berke and T. Perišin, Judges,

Registrar: E. Artemiou, Administrator,

having regard to the written part of the procedure and further to the hearing on 22 October 2020,

gives the following

Judgment (*1)

1The applicant, Nichicon Corporation, is a company established in Japan which manufactures and sells aluminium electrolytic capacitors. Until 6 February 2013, the applicant also manufactured and sold tantalum electrolytic capacitors.

2The infringement at issue concerns aluminium electrolytic capacitors and tantalum electrolytic capacitors. Capacitors are electrical components that store energy electrostatically in an electric field and are used in a wide variety of electronic products such as personal computers, tablets, telephones, air conditioners, refrigerators, washing machines, automotive products and industrial appliances. The customer base is therefore very diverse.

3Electrolytic capacitors, and more specifically aluminium electrolytic capacitors and tantalum electrolytic capacitors, are products in respect of which price is an important parameter of competition.

4On 4 October 2013, Panasonic and its subsidiaries submitted an application for a marker to the European Commission under points 14 and 15 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’), providing information regarding the existence of an alleged infringement in the electrolytic capacitors sector.

5On 28 March 2014, under Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), the Commission sent requests for information to a number of undertakings operating in the electrolytic capacitors sector, including the applicant.

6On 4 November 2015, the Commission adopted a statement of objections, which was addressed to the applicant.

7The addressees of the statement of objections, including the applicant, were heard by the Commission at a hearing which took place from 12 to 14 September 2016.

8On 21 March 2018, the Commission adopted Decision C(2018) 1768 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.40136 – Capacitors) (‘the contested decision’).

9By the contested decision, the Commission found that there had been a single and continuous infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) in the electrolytic capacitors sector, in which nine undertakings or groups of undertakings, namely Elna, Hitachi AIC, Holy Stone, Matsuo, NEC Tokin, Nippon Chemi-Con (‘NCC’), Rubycon, Sanyo (designating Sanyo and Panasonic) and the applicant (collectively, ‘the cartel participants’) participated (recital 1 and Article 1 of the contested decision).

10The Commission stated, in essence, that the infringement at issue, covering the whole EEA, had taken place between 26 June 1998 and 23 April 2012 and had consisted of agreements and/or concerted practices that had as their object the coordination of pricing behaviour in relation to the supply of aluminium electrolytic capacitors and tantalum electrolytic capacitors (recital 1 of the contested decision).

11The cartel was, in essence, organised through multilateral meetings, generally held in Japan every one or two months at senior sales manager level, and every six months at higher management level, including the presidents (recitals 63, 68 and 738 of the contested decision).

12Initially, between 1998 and 2003, the multilateral meetings were held under the name ‘Electrolytic Capacitor(s) Circle’ or ‘Electrolytic Capacitor Conference’ (‘the ECC meetings’). Subsequently, between 2003 and 2005, they were held under the name ‘Aluminium Tantalum Conference’ or ‘Aluminium Tantalum Capacitors group’ (‘the ATC meetings’). Lastly, between 2005 and 2012, they were held under the name ‘Market Study Group’ or ‘Marketing Group’ (‘the MK meetings’). In parallel with the MK meetings, and complementing those meetings, ‘Cost Up’ or ‘Condenser Up’ meetings (‘the CUP meetings’) were held between 2006 and 2008 (recital 69 of the contested decision).

13In addition to those multilateral meetings, the cartel participants also engaged in ad hoc bilateral and trilateral contacts when necessary (recitals 63, 75 and 739 of the contested decision) (collectively, ‘the anticompetitive exchanges’).

14In the context of the anticompetitive exchanges, the cartel participants exchanged information regarding pricing and future pricing, information regarding future price reductions and the ranges for those reductions, and information regarding supply and demand, including information in relation to future supply and demand, and, in some instances, concluded, implemented and monitored price agreements (recitals 62, 715, 732 and 741 of the contested decision).

15The Commission considered that the cartel participants’ conduct constituted a form of agreement and/or concerted practice which pursued a common objective, namely avoiding price competition and coordinating their future conduct with regard to the sale of electrolytic capacitors, thereby reducing uncertainty on the market (recitals 726 and 731 of the contested decision).

16The Commission concluded that that conduct had a single anticompetitive aim (recital 743 of the contested decision).

17The Commission held the applicant liable on account of its direct and continuous participation in the cartel from 26 June 1998 to 31 May 2010, but its liability did not extend to the MK meetings (recitals 760, 761, 955 and 1023 of the contested decision, as well as Article 1(f) thereof).

18Article 2(i) of the contested decision imposes a fine of EUR 72901000 on the applicant.

19In order to calculate the amount of the fines, the Commission applied the methodology set out in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’) (recital 980 of the contested decision).

20In the first place, in order to determine the basic amount of the fine imposed on the applicant, the Commission took into account the value of sales during the last full business year of participation in the infringement, in accordance with point 13 of the 2006 Guidelines (recital 989 of the contested decision).

21The Commission calculated the value of sales using sales of aluminium electrolytic capacitors and tantalum electrolytic capacitors invoiced to customers established in the EEA as a basis (recital 990 of the contested decision).

22In addition, the Commission calculated the relevant value of sales separately for the two categories of products, namely aluminium electrolytic capacitors and tantalum electrolytic capacitors, and applied separate duration multipliers to each (recital 991 of the contested decision). As regards the applicant, the Commission applied multipliers of 11.93 (corresponding to the period from 26 June 1998 to 31 May 2010) for aluminium electrolytic capacitors and 10.36 (corresponding to the period from 29 October 1999 to 9 March 2010) for tantalum electrolytic capacitors (recital 1007, Table 1, of the contested decision).

23The Commission set the proportion of the value of sales to be taken into account in order to reflect the gravity of the infringement at 16%. In that regard, it considered that horizontal price coordination ‘arrangements’ were, by their very nature, among the most serious infringements of Article 101 TFEU and Article 53 of the EEA Agreement and that the cartel covered the whole EEA (recitals 1001 to 1003 of the contested decision).

24The Commission applied an additional amount of 16% under point 25 of the 2006 Guidelines in order to ensure that the fine imposed would have a sufficiently deterrent effect (recital 1009 of the contested decision).

25The Commission therefore set the basic amount of the fine to be imposed on the applicant at EUR 75156000 (recital 1010 of the contested decision).

26In the second place, on account of mitigating circumstances, the Commission granted a 3% reduction in the basic amount of the fine imposed on the applicant, since its participation in the MK meetings was not established and there was no proof that it had been aware of those meetings (recital 1023 of the contested decision).

Accordingly, the Commission set the amount of the fine to be imposed on the applicant at EUR 72901000 (recital 1139, Table 3, of the contested decision).

II. Procedure and forms of order sought

29By application lodged at the Court Registry on 30 May 2018, the applicant brought the present action.

30On 28 September 2018, the Commission’s defence was lodged at the Court Registry.

31The reply and the rejoinder were lodged at the Court Registry on 7 December 2018 and 28 February 2019 respectively.

32On a proposal from the Second Chamber, the General Court decided, pursuant to Article 28 of its Rules of Procedure, to assign the case to a Chamber sitting in extended composition.

33

Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Ninth Chamber (Extended Composition), to which the present case was consequently assigned.

On a proposal from the Judge-Rapporteur, the General Court (Ninth Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, invited the parties to lodge certain documents.

The parties presented oral argument and answered the questions put to them by the Court at the hearing on 22 October 2020.

Following the death of Judge Berke on 1 August 2021, the three Judges whose signatures are affixed to the present judgment continued the deliberations, in accordance with Article 22 and Article 24(1) of the Rules of Procedure.

The applicant claims, in essence, that the Court should:

–primarily, annul the contested decision in so far as it is applied to the applicant;

–in the alternative, and in any event, substitute its own appraisal for that of the Commission as regards the amount of the fine imposed on the applicant and reduce that amount;

–order the Commission to pay the costs.

The Commission contends that the Court should:

–dismiss the action;

–order the applicant to pay the costs.

III. Law

…

In support of the action, the applicant relies on five pleas in law in support of both its primary head of claim, seeking annulment of the contested decision, and its alternative head of claim, seeking a reduction in the amount of the fine imposed on it.

By the first, second and third pleas, the applicant disputes the Commission’s conclusion that there was a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement in the electrolytic capacitors sector throughout the EEA for a period of almost 14 years. The first plea alleges material errors of fact as regards the geographic scope of the anticompetitive exchanges. The second plea alleges errors of law regarding, first, the finding of a single and continuous infringement and, second, the applicant’s participation in that infringement. The third plea alleges that the Commission lacked jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement.

By its fourth plea, the applicant disputes the fine imposed on it. That plea alleges manifest errors of assessment in the calculation of the amount of the fine.

By the fifth plea, alleging infringement of the right to be heard, the applicant disputes the legality of the procedure for establishing the infringement.

…

(c) The second plea in law, alleging errors of law in relation to the finding of a single and continuous infringement and the applicant’s liability for participation in that infringement

…

(1) The first part, relating to the lack of evidence of a single and continuous infringement covering all sales of electrolytic capacitors to the EEA

The applicant submits, in essence, that, because of the heterogeneous nature of capacitors and the specific nature of demand on the various geographic markets, the infringement, apart from the fact that it was not established by the Commission, could not cover all sales of electrolytic capacitors to the EEA.

…

(i) The first complaint, relating to the lack of evidence of a single and continuous infringement covering all sales of electrolytic capacitors

The applicant argues, as a preliminary point, that capacitors are highly diversified products, which are distinguished by a multitude of characteristics and for which there is no uniform market price, so that the infringement cannot cover all sales of electrolytic capacitors to the EEA. It submits, more specifically, that the evidence set out in recital 796 et seq. of the contested decision, on which the Commission relied in order to support its finding, is not capable of establishing to the requisite legal standard the existence of a single and continuous infringement which, taken as a whole, covered all sales of electrolytic capacitors.

The Commission disputes the applicant’s arguments.

As a preliminary point, it should be borne in mind that, in order to determine the products covered by a cartel, the Commission is not required to define the relevant market on the basis of economic criteria. It is the members of the cartel themselves who determine the products which are the subject of their discussions and concerted practices (see, to that effect, judgment of 15 June 2005, Tokai Carbon and Others v Commission, T‑71/03, T‑74/03, T‑87/03 and T‑91/03, not published, EU:T:2005:220, paragraph 90). The products covered by a cartel are determined by reference to the documentary evidence of actual anticompetitive conduct in respect of specific products (see, to that effect, judgment of 11 December 2003, Adriatica di Navigazione v Commission, T‑61/99, EU:T:2003:335, paragraph 27).

It must also be emphasised that the Commission cannot, in that regard, rely on a presumption which is not substantiated by any evidence (see, to that effect, judgment of 28 November 2019, ABB v Commission, C‑593/18 P, EU:C:2019:1027, paragraphs 44 and 45).

It is apparent, however, from the contested decision, and in particular from recital 736 thereof, that the Commission found, after examining all the anticompetitive exchanges and evidence relating thereto, that all the exchanges between the cartel participants covered either (i) aluminium electrolytic capacitors or tantalum electrolytic capacitors or (ii) both of those categories of electrolytic capacitors.

In recital 796 of the contested decision, the Commission, first, stated, in response to a complaint raised by the applicant during the administrative procedure and similar to the present complaint, that it was apparent from the anticompetitive exchanges that the discussions were not limited to certain subtypes of aluminium electrolytic capacitor or tantalum electrolytic capacitor.

As the Commission states in that recital, that failure to restrict the subject matter of the discussions is apparent not only from the meetings of 29 August 2002, 22 December 2006, 25 June 2008 and 20 December 2010, mentioned in the application, during which reference was made to a wide variety of aluminium electrolytic capacitors and/or tantalum electrolytic capacitors, but also from discussions relating specifically to the factors contributing to the determination of the selling price of the products, such as the increase in the cost of raw materials and fluctuations in exchange rates (see, by way of example, the meetings referred to in footnotes 1417 and 1418 to the contested decision). The content of those discussions was general and was intended to apply to all types of aluminium electrolytic capacitor or tantalum electrolytic capacitor.

Secondly, in recital 797 of the contested decision, the Commission found that the cartel participants had not introduced any limitation in their corporate statements as to the definition of the aluminium electrolytic capacitors or tantalum electrolytic capacitors covered by the cartel.

Thirdly, in recital 798 of that decision, the Commission stated that the majority of the representatives of the cartel participants were responsible for the manufacture and/or sale of aluminium electrolytic capacitors and tantalum electrolytic capacitors, and not a specific product line.

In the light of the case-law referred to in paragraphs 84, 318 and 319 above, the Commission, in the light of those findings, was right to take the view that the cartel covered all aluminium electrolytic capacitors and tantalum electrolytic capacitors and, therefore, that the single and continuous infringement covered all those products.

That finding is not called into question by the applicant’s arguments.

First, the applicant claims that the Commission in fact refers to four meetings only in order to maintain, in recital 796 of the contested decision, that the cartel covered all sales of electrolytic capacitors. It also adds that none of the exchanges mentioned in footnotes 1417 and 1418 to that recital concerned all sales of electrolytic capacitors.

However, the applicant misinterprets the contested decision, in particular recital 796 thereof. First, the Commission relies on more than four anticompetitive exchanges to support its conclusion that the cartel covered all aluminium electrolytic capacitors and tantalum electrolytic capacitors and not a specific capacitor subtype. Second, the Commission did not intend to demonstrate, in that recital, that the discussions during each exchange related to all sales of capacitors, but merely to substantiate its conclusion, citing by way of example the exchanges referred to in footnotes 1417 and 1418 thereto. That argument must therefore be rejected.

Secondly, the applicant submits that the fact that no limitation is laid down in the leniency statements as regards the products covered by the cartel is not sufficient evidence to establish that the infringement concerned all sales of electrolytic capacitors.

However, first, it has been pointed out in paragraph 318 above that, according to the case-law, it is the members of the cartel themselves who determine the products which are the subject of their discussions and concerted practices. Second, it is apparent from the preceding paragraphs that the Commission’s conclusion is not based solely on the undertakings’ leniency statements. That argument must therefore be rejected.

Thirdly, the applicant asserts that Annex II to the contested decision does not enable it to be established that the persons who participated in the cartel were generally responsible for all electrolytic capacitors, on the grounds, first, that that annex mentions only those persons’ job titles, without providing details of their exact responsibilities, and second, that the exchanges took place in Japan between Japanese employees, who were generally not responsible for sales to Europe.

However, it is sufficient to note that the fact that the details of the responsibilities of the persons concerned were not known does not preclude them from being able to exercise responsibilities in relation to all the goods covered, which, moreover, is not disputed by the applicant. Second, the fact that those persons were not, in general, responsible for sales to Europe does not preclude them from being responsible for occasional sales to Europe. In any event, it should be borne in mind that the persons mentioned on that list were the representatives of the cartel participants, so that they necessarily had responsibilities relating to the goods in question. That argument must therefore be rejected.

In the light of all the foregoing considerations, the present complaint must be rejected.

…

(e) The fourth plea in law, alleging manifest errors of assessment in the determination of the fine

By the present plea, the applicant submits that, by imposing a fine of EUR 72901000 on it, the Commission infringed the principles of proportionality, ne bis in idem and equal treatment and failed to fulfil its obligation to state reasons.

…

(1) The first part, relating to the incorrect calculation of the amount of the fine

This part may be divided into three complaints. The first complaint relates to the incorrect use of the total value of sales invoiced in the EEA for the purpose of calculating the amount of the fine. The second complaint relates to the determination of the multiplier to be taken into account for the purpose of assessing the gravity of the infringement. The third complaint relates to the determination of the additional amount to be taken into account.

(i) The first complaint, relating to the incorrect use of the total value of sales invoiced in the EEA

The applicant submits, in essence, that the Commission infringed the principle of proportionality by taking as the basis for the calculation of the amount of the fine the total value of sales of aluminium electrolytic capacitors and tantalum electrolytic capacitors invoiced during the last business year of its participation in the cartel.

The Commission disputes the applicant’s arguments.

…

Sixthly, it is necessary to reject the argument that the Commission misapplied the 2006 Guidelines by taking as the basis for calculating the amount of the fine the total value of sales invoiced in the EEA instead of the total value of sales consigned to the EEA.

First, it should be noted, as the Commission does, that point 13 of the 2006 Guidelines refers neither to ‘sales delivered’ nor to ‘sales invoiced’. It refers only to ‘sales’ in the EEA. It follows that those guidelines, just as they do not require account to be taken of sales delivered in the EEA, do not preclude the Commission from using the sales invoiced in the EEA to calculate the value of each undertaking’s sales within the EEA (judgment of 17 May 2013, Parker ITR and Parker-Hannifin v Commission, T‑146/09, EU:T:2013:258, paragraph 210).

Moreover, it is admittedly apparent from the case-law that, to be able to use the sales invoiced in the EEA, it is necessary for that criterion to reflect the reality of the market, that is to say for it to be the best criterion for ascertaining the effects of the cartel on competition in the EEA (judgment of 17 May 2013, Parker ITR and Parker-Hannifin v Commission, T‑146/09, EU:T:2013:258, paragraph 211). However, the applicant does not explain how the fact that the Commission took into account, when calculating the amount of the fine, certain sales invoiced to customers in the EEA but subsequently delivered to sites outside that geographic area does not reflect the impact of the infringement on competition in the EEA.

It follows from the foregoing considerations that the applicant has not put forward any evidence to establish that the turnover achieved during the last full business year of participation in the infringement, in respect of all sales of aluminium electrolytic capacitors and tantalum electrolytic capacitors in the EEA, did not constitute, at the time when the Commission adopted the contested decision, an indication of its true size, its economic power on the market and the extent of the infringement in question.

It follows that the present complaint must be rejected.

…

(iii) The third complaint, relating to the determination of the additional amount to be taken into account

The applicant submits, in essence, that, in view of the fact that the cartel participants had already been given substantial fines in non-member countries, which took into account the global aspects of the infringement and a deterrent effect, the Commission has infringed the principle ne bis in idem and the principle of proportionality by also imposing an amount in addition to the basic amount in order to deter the cartel participants from engaging in any unlawful cartels in the future.

The Commission disputes the applicant’s arguments.

As a preliminary point, it is apparent from recital 1009 of the contested decision that the Commission stated that, in the light of the specific circumstances of the present case and the criteria discussed in Section 8.3.3.1 of that decision, the percentage to be applied to the additional amount for deterrence should be 16%.

It should be borne in mind that the principle ne bis in idem, also enshrined in Article 4 of Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, constitutes a fundamental principle of EU law the observance of which is guaranteed by the judicature (see judgment of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraph 26 and the case-law cited).

Under the principle ne bis in idem, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal interest. The application of that principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected (see judgment of 27 September 2006, Roquette Frères v Commission, T‑322/01, EU:T:2006:267, paragraph 278 and the case-law cited).

First, in so far as the applicant claims that, by imposing a fine on it for participation in a cartel already penalised by the authorities of non-member States, the Commission infringed the principle ne bis in idem, it should be noted that the principle ne bis in idem cannot apply in circumstances such as those of this case, where the proceedings conducted and penalties imposed by the Commission, on the one hand, and by the authorities of non-member States, on the other, clearly do not pursue the same objectives (see, by analogy, judgment of 27 September 2006, Roquette Frères v Commission, T‑322/01, EU:T:2006:267, paragraphs 280 and 281 and the case-law cited).

Whereas, in the former scenario, it is a question of preserving undistorted competition in the EEA, the protection sought, in the latter scenario, concerns the market of the non-member country. The condition of unity of the legal interest protected, which is necessary for the application of the principle ne bis in idem, is therefore lacking.

Moreover, the applicant neither invokes nor demonstrates the existence of a principle of law or a rule or convention of public international law prohibiting authorities or courts of different States from prosecuting or convicting a person on the basis of identical facts producing effects on their territory or within their jurisdiction. In the absence of proof of the existence of such a rule or convention binding the European Union or non-member States and providing for such a prohibition, the Commission cannot be bound by it (see, to that effect, judgment of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraph 34).

Consequently, the applicant’s claim alleging that the Commission infringed the principle ne bis in idem must be rejected.

Secondly, in so far as the applicant claims that the Commission infringed the principle of proportionality by failing to take account, in determining the additional percentage to be applied, of the fact that the fines imposed on it by other States already included a deterrent effect, it must be borne in mind that point 25 of the 2006 Guidelines states that, ‘irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15% and 25% of the value of sales as defined in Section A above in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements’.

Moreover, it should be observed that any consideration concerning the existence of fines imposed by the authorities of a non-member State can be taken into account only under the Commission’s discretion in setting fines for infringements of EU competition law. Accordingly, although it cannot be ruled out that the Commission may take into account fines imposed previously by the authorities of non-member States, it cannot be required to do so. The objective of deterrence which the Commission is entitled to pursue when setting the amount of a fine is to ensure compliance by undertakings with the competition rules laid down by the FEU Treaty for the conduct of their activities within the internal market. Consequently, when assessing the deterrent nature of a fine to be imposed for infringement of those rules, the Commission is not required to take into account any penalties imposed on an undertaking for infringement of the competition rules of non-member States (see judgment of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraphs 36 and 37 and the case-law cited).

Consequently, the applicant’s claim alleging infringement of the principle of proportionality must be rejected.

On the basis of all the foregoing considerations, the first part of the present plea must be rejected.

(2) The second part, relating to the failure to take account of the mitigating circumstances surrounding the applicant

…

(i) The first complaint, relating to the fact that the amount of the fine does not sufficiently reflect the applicant’s absence from the MK meetings

The applicant submits, in essence, that the amount of the reduction granted to it on account of its non-participation in the MK meetings is not consistent with the principles of proportionality and equal treatment.

The Commission disputes the applicant’s arguments.

As a preliminary point, it is apparent from recital 1023 of the contested decision that the Commission granted the applicant, on account of mitigating circumstances, a 3% reduction in the basic amount of the fine imposed, on the ground that its participation in the MK meetings had not been established and that there was no evidence that it had been aware of those meetings.