Corte di giustizia UE/2013

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 5 December 2013 ( * ) (Appeals – Agreements, decisions and concerted practices – [OSCURATO:PERSONA] market for hydrogen peroxide and sodium perborate – [OSCURATO:PERSONA] finding an infringement of [OSCURATO:PERSONA] 81 EC – Duration of the infringement – Concepts of ‘agreement’ and ‘concerted practice’ – [OSCURATO:PERSONA] – Obligation to state reasons – Reduction of the fine) [OSCURATO:PERSONA] C‑455/11 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 26 August 2011, [OSCURATO:PERSONA] SA, established in Brussels (Belgium), represented by O. W. Brouwer, advocaat, and M. O’Regan, Solicitor, appellant, the other party to the proceedings being: [OSCURATO:PERSONA], represented by V. Bottka, A. Biolan and J. Bourke, acting as Agents, and by M. Gray, BL, with an address for service in Luxembourg, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of R. Silva de Lapuerta, President of the [OSCURATO:PERSONA], J.L. da [OSCURATO:PERSONA], G. Arestis (Rapporteur), J.‑C. Bonichot and A. Arabadjiev, Judges, [OSCURATO:PERSONA]: M. Wathelet, Registrar: M. Aleksejev, Administrator, having regard to the written procedure and further to the hearing on 24 January 2013, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1 By its appeal, [OSCURATO:PERSONA] SA (‘[OSCURATO:PERSONA]’), seeks to have set aside in part the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] T‑186/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2011] [OSCURATO:PERSONA]‑2839 (‘the judgment under appeal’), by which that court dismissed its application for the annulment in part of [OSCURATO:PERSONA] C(2006) 1766 final of 3 May 2006 relating to a proceeding under [OSCURATO:PERSONA] 81 [EC] and [OSCURATO:PERSONA] 53 of the EEA Agreement against [OSCURATO:PERSONA] NV, [OSCURATO:PERSONA] AB, EKA [OSCURATO:PERSONA] AB, Degussa AG, [OSCURATO:SOCIETA], FMC Corporation, FMC Foret SA, [OSCURATO:PERSONA], L’[OSCURATO:PERSONA] SA, Chemoxal SA, [OSCURATO:SOCIETA], [OSCURATO:SOCIETA], [OSCURATO:PERSONA] SA/NV, [OSCURATO:SOCIETA], Total SA, [OSCURATO:PERSONA] SA and Arkema SA ([OSCURATO:PERSONA] COMP/F/38.620 – Hydrogen peroxide and perborate), a summary of which is published in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (OJ 2006 L 353, p. 54; ‘the contested decision’). 2 [OSCURATO:PERSONA] has brought a cross‑appeal, by which it seeks, first, to have the judgment under appeal set aside in part in so far as that judgment reduces the fine imposed on [OSCURATO:PERSONA] and, second, to set the fine imposed on that company, pursuant to [OSCURATO:PERSONA] 2(h) of the contested decision, at EUR 156.938 million. Legal context 3 Points 21 to 23 of the [OSCURATO:PERSONA] notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the [OSCURATO:PERSONA]’), provide: ‘21.      In order to qualify [for a reduction of the fine], an undertaking must provide the [OSCURATO:PERSONA] with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the [OSCURATO:PERSONA]’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence. 22.      The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the [OSCURATO:PERSONA]’s ability to prove the facts in question. In this assessment, the [OSCURATO:PERSONA] will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance. 23.      [OSCURATO:PERSONA] will determine in any final decision adopted at the end of the administrative procedure: (a)      whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the [OSCURATO:PERSONA]’s possession at that same time; (b)      the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as follows. For the: –        first undertaking to meet point 21: a reduction of 30-50%, –        second undertaking to meet point 21: a reduction of 20-30%, –        subsequent undertakings that meet point 21: a reduction of up to 20%. In order to determine the level of reduction within each of these bands, the [OSCURATO:PERSONA] will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission. In addition, if an undertaking provides evidence relating to facts previously unknown to the [OSCURATO:PERSONA] which have a direct bearing on the gravity or duration of the suspected cartel, the [OSCURATO:PERSONA] will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’ 4 [OSCURATO:PERSONA] 23(2) and (3) of [OSCURATO:PERSONA] (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) provides: ‘2. [OSCURATO:PERSONA] may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a)       they infringe [OSCURATO:PERSONA] 81 [EC] or [OSCURATO:PERSONA] 82 [EC] … 3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’ Background to the dispute 5 [OSCURATO:PERSONA] is a company incorporated under Belgian law which at the material time manufactured, inter alia, hydrogen peroxide and sodium perborate. 6 On 7 May 2002 [OSCURATO:PERSONA] acquired 100% ownership of [OSCURATO:SOCIETA] (now [OSCURATO:SOCIETA]), which at the material time was 100% controlled by [OSCURATO:SOCIETA] (now [OSCURATO:SOCIETA]). 7 [OSCURATO:PERSONA] 2002 Degussa AG (‘Degussa’) informed the [OSCURATO:PERSONA] of the existence of a cartel in the hydrogen peroxide and sodium perborate markets and requested the application of the [OSCURATO:PERSONA]. Degussa also supplied to the [OSCURATO:PERSONA] material evidence which enabled it to carry out investigations on 25 and 26 March 2003 at the premises of certain undertakings, including those of [OSCURATO:PERSONA]. Following those investigations, several undertakings, including [OSCURATO:PERSONA], also requested the application of that notice and sent to the [OSCURATO:PERSONA] evidence relating to the cartel in question. 8 On 26 January 2005, the [OSCURATO:PERSONA] sent a statement of objections to [OSCURATO:PERSONA]. The latter then requested access, first, to the non‑confidential versions of the replies given by the other undertakings concerned by that statement of objections and, second, to certain confidential documents in the case provided by Degussa. [OSCURATO:PERSONA] refused access to the replies to that statement of objections and partially disclosed the documents provided by Degussa. 9 By letter of 8 May 2006, the contested decision was notified to [OSCURATO:PERSONA]; it is stated therein that [OSCURATO:PERSONA] participated, from 31 January 1994 until 31 December 2000, in a single and continuous infringement of [OSCURATO:PERSONA] 81 EC and [OSCURATO:PERSONA] 53 of the Agreement on the [OSCURATO:PERSONA] of 2 May 1992 (OJ 1994 L 1, p. 3), regarding hydrogen peroxide and sodium perborate. The infringement found consisted mainly of competitors exchanging commercially important and confidential market and company information, limiting and controlling production as well as potential and actual production capacities, allocating market shares and customers and fixing and monitoring adherence to target prices. 10 [OSCURATO:PERSONA] 1(m) of the contested decision states that [OSCURATO:SOCIETA] infringed [OSCURATO:PERSONA] 81(1) EC and [OSCURATO:PERSONA] 53 of the EEA Agreement by participating in the infringement from 31 January 1994 until 31 December 2000. [OSCURATO:PERSONA] 2(h) of that decision, the [OSCURATO:PERSONA] imposed on it a fine of EUR 167.062 million. The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 11 By application lodged at the Registry of the [OSCURATO:PERSONA] on 17 July 2006, [OSCURATO:PERSONA] brought an action seeking, first, the annulment in part of the contested decision and, second, in the alternative, the annulment or reduction of the fine imposed on it. 12 In support of its action, [OSCURATO:PERSONA] relied on five pleas in law, alleging errors of law and in assessment of the facts in relation to, first, the finding of its participation in the infringement for the period from 31 January 1994 until August 1997, second, the finding of its participation in the infringement for the period from 18 May to 31 December 2000, third, the application of the [OSCURATO:PERSONA], fourth, the determination of the amount of the fine and, fifth, the refusal of access to certain material in the file. 13 [OSCURATO:PERSONA] annulled the contested decision in part with respect to the duration of [OSCURATO:PERSONA] participation in the infringement found and reduced the amount of the fine imposed on it to EUR 139.5 million. The procedure before the [OSCURATO:PERSONA] of Justice and the forms of order sought 14 [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: –        set aside paragraphs 121 to 170 of the judgment under appeal; –        set aside paragraphs 394, 395 and 402 to 427 of that judgment; –        give final judgment and annul the contested decision in so far as it declared that, first, [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 81 EC between May 1995 and August 1997 and, second, [OSCURATO:PERSONA] was the third undertaking to satisfy the requirements of point 21 of the [OSCURATO:PERSONA], and to reduce accordingly the fine imposed upon [OSCURATO:PERSONA], or, in the alternative, to refer the case back to the [OSCURATO:PERSONA]; –        dismiss the [OSCURATO:PERSONA]’s cross-appeal as in part inadmissible and in part manifestly unfounded; and –        order the [OSCURATO:PERSONA] to pay all the costs incurred in connection with the proceedings before the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Justice, including in connection with the cross-appeal. 15 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the appeal; –        set aside paragraphs 428 to 441 of the judgment under appeal; –        annul the finding at paragraph 2 of the operative part of that judgment, and set the amount of the fine imposed on [OSCURATO:PERSONA] in [OSCURATO:PERSONA] 2(h) of the contested decision at EUR 156.938 million; and –        order [OSCURATO:PERSONA] to bear the entirety of the costs of the proceedings at first instance and those of these proceedings; The main appeal The first ground of appeal, relating to [OSCURATO:PERSONA] participation in the infringement for the period from May 1995 to August 1997 16 By its first ground of appeal, which is subdivided into three parts, [OSCURATO:PERSONA] requests the [OSCURATO:PERSONA] to set aside paragraphs 121 to 170 of the judgment under appeal in so far as the [OSCURATO:PERSONA] wrongly upheld the [OSCURATO:PERSONA]’s findings that [OSCURATO:PERSONA] had participated in an infringement of [OSCURATO:PERSONA] 81 EC between May 1995 and August 1997, on grounds that its conduct during this period fell within the initial stage of the price-fixing cartel and was part of the same anti-competitive scheme and/or constituted a concerted practice. 17 As regards that first ground of appeal, it is necessary, in the first place, to examine the first part of that ground, alleging distortion by the [OSCURATO:PERSONA] of the evidence relating to both the existence and nature of the discussions and exchanges of information between hydrogen peroxide producers during the period from May 1995 to August 1997, then, in the second place, the third part of that ground of appeal, by which [OSCURATO:PERSONA] alleges that the [OSCURATO:PERSONA] wrongly categorised that conduct as a ‘concerted practice’, and, in the third place, the second part of that ground of appeal, alleging that the [OSCURATO:PERSONA] erred in categorising that conduct as an ‘agreement’. The first part of the first ground of appeal, relating to an alleged distortion of the evidence regarding both the existence and the nature of the discussions and exchanges of information between hydrogen peroxide producers –       Arguments of the parties 18 [OSCURATO:PERSONA] submits, in essence, that the [OSCURATO:PERSONA] distorted the evidence before it by holding, in paragraph 150 of the judgment under appeal, that the [OSCURATO:PERSONA] had established, in the contested decision, that [OSCURATO:PERSONA] had discussed and/or exchanged information on prices and on its commercial strategy during the period from May 1995 to August 1997. 19 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] incorrectly found that it had disclosed or discussed prices at four encounters with competitors: meetings of 23 October 1995 in [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) and on 21 [OSCURATO:PERSONA] 1995 in [OSCURATO:PERSONA], an unofficial dinner which it attended on 24 May 1996 in Gothenburg (Sweden) and meetings surrounding an official assembly in [OSCURATO:PERSONA] 1996 in Brussels (Belgium). According to [OSCURATO:PERSONA], there is no evidence that it attended those meetings, let alone disclosed prices to its competitors at those meetings. 20 With respect to the meeting of 23 October 1995 in [OSCURATO:PERSONA], [OSCURATO:PERSONA] submits that it did not take part in this meeting and that the contested decision itself establishes this. As regards the meeting of 21 [OSCURATO:PERSONA] 1995 in [OSCURATO:PERSONA], [OSCURATO:PERSONA] states, first, that it never admitted attending this meeting and that, second, the finding that [OSCURATO:PERSONA] discussed prices is based upon the allegations of only one undertaking, namely Arkema SA (formerly Atofina SA) (‘Arkema’); which does not constitute sufficient evidence to establish that [OSCURATO:PERSONA] disclosed or discussed, let alone agreed, prices for hydrogen peroxide. 21 [OSCURATO:PERSONA], as regards the exchanges which allegedly took place in Gothenburg and Brussels during 1996, [OSCURATO:PERSONA] contests its presence and states that the only evidence relied on by the [OSCURATO:PERSONA] to establish the existence of an infringement that [OSCURATO:PERSONA] allegedly committed was Degussa’s general statement about exchanges of ‘sensitive data for competition’. In that regard, [OSCURATO:PERSONA] observes that the [OSCURATO:PERSONA] held, in paragraphs 106 to 109 of the judgment under appeal, that Degussa’s statements could not be relied upon as adequate proof of [OSCURATO:PERSONA] participation in the infringement in question. [OSCURATO:PERSONA] submits that, consequently, that reasoning should have applied a fortiori to the uncorroborated suggestions in the contested decision that [OSCURATO:PERSONA] exchanged pricing information with its competitors at those meetings. 22 [OSCURATO:PERSONA], [OSCURATO:PERSONA] submits that the contents of the contested decision did not permit the [OSCURATO:PERSONA] to find, in paragraph 150 of the judgment under appeal, that [OSCURATO:PERSONA] had disclosed its commercial strategy to its competitors. In doing so, the [OSCURATO:PERSONA] exceeded its powers of judicial review, committed an error of law and manifestly distorted the evidence before it, including the contents of that decision. 23 [OSCURATO:PERSONA] replies that those arguments must be rejected as inadmissible and, in any event, unfounded. –       Findings of the [OSCURATO:PERSONA] 24 By the first part of its first ground of appeal, [OSCURATO:PERSONA] submits in essence that the [OSCURATO:PERSONA] distorted the evidence before it, including the contents of the contested decision, by holding, in paragraph 150 of the judgment under appeal, that the [OSCURATO:PERSONA] had established that [OSCURATO:PERSONA] had discussed and/or exchanged information on prices and on its commercial strategy during the period from May 1995 to August 1997. 25 In that regard, it should be recalled at the outset that, under [OSCURATO:PERSONA] 256(1) TFEU and the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], an appeal lies on points of law only. [OSCURATO:PERSONA] has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the [OSCURATO:PERSONA] of Justice on appeal. 26 It should also be borne in mind that, according to settled case-law, a distortion of the evidence must be obvious from the documents on the [OSCURATO:PERSONA] file, without there being any need to carry out a new assessment of the facts and the evidence. 27 In this case, it must be stated that the alleged distortion of the evidence claimed by [OSCURATO:PERSONA] is not obvious from the documents on the [OSCURATO:PERSONA] file. That claim necessarily requires a new assessment of the facts and the evidence to be carried out, so that that company has failed to satisfy the requirements incumbent on it under that case-law. 28 In reality, under guise of a ground of appeal alleging such a distortion, [OSCURATO:PERSONA] seeks to challenge the assessment of the evidence carried out by the [OSCURATO:PERSONA] in its examination of the existence and content of the meetings between the hydrogen peroxide producers during the period from May 1995 to August 1997 and thus seeks to have the [OSCURATO:PERSONA] of Justice substitute its own appraisal for the [OSCURATO:PERSONA], which is not, as is apparent from paragraph 25 of this judgment, in principle, allowed at the appeal stage. By that ground of appeal, that company ultimately seeks to establish that the [OSCURATO:PERSONA] ought to have assessed those facts in a different manner and criticises it for not having ruled differently. 29 In any event, the [OSCURATO:PERSONA] findings, in paragraph 150 of the judgment under appeal, do not contain anything capable of suggesting that the facts or evidence were distorted at first instance. The alleged distortion claimed by [OSCURATO:PERSONA] is based rather on an incomplete and erroneous reading of that paragraph. 30 [OSCURATO:PERSONA], the first part put forward by [OSCURATO:PERSONA] in support of its first ground of appeal must be rejected. The third part of the first ground of appeal, relating to the categorisation of the concept of a ‘concerted practice’ –       Arguments of the parties 31 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] committed errors of law, by upholding, in paragraphs 146 to 163 of the judgment under appeal, the finding of the contested decision that the discussions and exchanges of information between the hydrogen peroxide producers from May 1995 to August 1997 constituted a ‘concerted practice’ within the meaning of [OSCURATO:PERSONA] 81 CE. 32 [OSCURATO:PERSONA], [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] statement of law, at paragraph 148 of the judgment under appeal, that ‘it is sufficient, in order to find an infringement of [OSCURATO:PERSONA] 81(1) EC, that the competitors have made direct contact with a view to ‘stabilising the market’ is based on a misapplication of the judgments in [OSCURATO:PERSONA] T‑148/89 Tréfilunion v [OSCURATO:PERSONA] [1995] [OSCURATO:PERSONA]‑1063, paragraphs 75 to 82, and [OSCURATO:PERSONA] T‑53/03 BPB v [OSCURATO:PERSONA] [2008] [OSCURATO:PERSONA]‑1333, paragraphs 166 to 190. Unlike in those judgments, the hydrogen peroxide producers did not reach an agreement, in the present case, on any matter whatsoever before sharing information. 33 [OSCURATO:PERSONA], [OSCURATO:PERSONA] complains that the [OSCURATO:PERSONA] failed to take account of [OSCURATO:PERSONA] observations that the exchange of information between May 1995 and August 1997 did not constitute a ‘standalone’ concerted practice since that information did not have the potential to have a negative impact on competition. In that regard, [OSCURATO:PERSONA] states that it adduced before the [OSCURATO:PERSONA] substantial evidence of a highly competitive market and that both the contested decision and the judgment under appeal refer to a steady decrease in prices and a price war. 34 [OSCURATO:PERSONA] submission, the [OSCURATO:PERSONA] failed to consider whether the information exchanged was, in law and in the context of the case, capable of removing or reducing uncertainty, so as to influence the conduct of competitors and thereby lead to a concerted practice between them being knowingly substituted for the risks of competition. [OSCURATO:PERSONA] therefore committed an error of law, in taking the view, in paragraphs 158 to 163 of the judgment under appeal, that the effects of the agreement or concerted practice do not need to be taken into account if an infringement has an anti-competitive object. According to [OSCURATO:PERSONA], the existence of strong, even brutal, competition is germane to the determination of whether there was in fact a concerted practice. 35 [OSCURATO:PERSONA] contests [OSCURATO:PERSONA] line of argument. –       Findings of the [OSCURATO:PERSONA] 36 [OSCURATO:PERSONA], as regards [OSCURATO:PERSONA] argument that the [OSCURATO:PERSONA] incorrectly held that, in order to prove a concerted practice within the meaning of [OSCURATO:PERSONA] 81(1) EC, there must not necessarily be a pre‑existing agreement, it should be recalled that, with regard to that concept of a concerted practice, the [OSCURATO:PERSONA] of Justice has held that such a practice is a form of coordination between undertakings by which, without it having been taken to the stage where an agreement properly so-called has been concluded, practical cooperation between them is knowingly substituted for the risks of competition (see [OSCURATO:PERSONA] C‑8/08 T-[OSCURATO:PERSONA] and Others [2009] ECR I‑4529, paragraph 26 and the case-law cited). 37 The criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the common market ( T-[OSCURATO:PERSONA] and Others , paragraph 32 and the case-law cited). 38 While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, none the less, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market ( T‑[OSCURATO:PERSONA] and Others , paragraph 33 and the case-law cited). 39 In the case of a highly concentrated oligopolistic market, such as the market in question in the present case, the exchange of commercial information between competitors is such as to enable operators to know the market positions and strategies of their competitors and thus to impair appreciably the competition which exists between economic operators (see T-[OSCURATO:PERSONA] and Others , paragraph 34 and the case-law cited). 40 In those circumstances, the exchange of commercial information between competitors in preparation for an anti-competitive agreement suffices to prove the existence of a concerted practice within the meaning of [OSCURATO:PERSONA] 81(1) EC. In that regard, it is not necessary to show that those competitors formally undertook to adopt a particular course of conduct or that the competitors colluded over their future conduct on the market. 41 It follows that the [OSCURATO:PERSONA] cannot be criticised for having held, in paragraphs 148 and 149 of the judgment under appeal, first, that, even if the [OSCURATO:PERSONA] does not succeed in showing that the undertakings concluded an agreement, in the strict sense of the term, it is sufficient, in order to find an infringement of [OSCURATO:PERSONA] 81(1) EC, that the competitors have made direct contact with a view to ‘stabilising the market’ and, next, for having rejected [OSCURATO:PERSONA] contention that the disclosure of information to competitors may be deemed to be a concerted practice only where an anti-competitive agreement has already been concluded and negotiations take place only in order to effect its implementation. 42 [OSCURATO:PERSONA], as regards [OSCURATO:PERSONA] argument that the [OSCURATO:PERSONA] failed to take account of its observations that the information exchanged was not sufficient to have negative effects on competition, it should be borne in mind that the [OSCURATO:PERSONA] of Justice has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. That is all the more the case where the undertakings concert together on a regular basis over a long period (see, inter alia, T-[OSCURATO:PERSONA] and Others , paragraph 51 and the case-law cited). 43 In order to rebut that presumption, it is for the undertaking concerned to prove that the concerted action did not have any influence whatsoever on its own conduct on the market (see [OSCURATO:PERSONA] C‑199/92 P Hüls v [OSCURATO:PERSONA] [1999] ECR I‑4287, paragraph 167). The proof to the contrary must therefore be such as to rule out any link between the concerted action and the determination, by that undertaking, of its conduct on the market. 44 In that regard, it must be stated that probative data illustrating the competitive nature of the market and, in particular, the decrease of prices during the period concerned cannot suffice, of itself, to rebut that presumption. That data does not of itself make it possible to prove that that undertaking did not take account of the information exchanged with its competitors in determining its conduct on the market. It follows that that data does not of itself preclude the presumption that the concerted action enabled that undertaking to eliminate uncertainties regarding its conduct on the market, so that normal competition might as a result have been prevented, restricted or distorted. 45 [OSCURATO:PERSONA] cannot therefore be criticised for taking the view that the proof to the contrary, adduced by [OSCURATO:PERSONA], resulting from probative data illustrating the highly competitive nature of the market and, in particular, the decrease in prices during the period concerned was not such as to rebut the rebuttable presumption in question, by holding, in paragraph 161 of the judgment under appeal, that, even if it were established that the exchange of information in question had no influence on prices during the period concerned, that would not call into question the legality of the [OSCURATO:PERSONA]’s findings. 46 [OSCURATO:PERSONA], [OSCURATO:PERSONA] argument that the [OSCURATO:PERSONA] failed to take account of its submissions that the information exchanged was not sufficient to have negative effects on competition cannot succeed. 47 It follows from all the foregoing that the [OSCURATO:PERSONA] did not err in law in upholding the contested decision by holding, in paragraphs 146 to 163 of the judgment under appeal, that the contacts between the hydrogen peroxide producers during the period from May 1995 until August 1997 could, in any event, be categorised as a concerted practice falling within [OSCURATO:PERSONA] 81 EC. 48 Since none of the arguments put forward in support of the third part of the first ground of appeal have been successful, this part must be rejected. The second part of the first ground of appeal, relating to the categorisation of an ‘agreement’ –       Arguments of the parties 49 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] committed an error of law, by upholding, in paragraphs 143 to 145 of the judgment under appeal, the finding of the contested decision that the discussions and exchanges of information between the hydrogen peroxide producers from May 1995 to August 1997 constituted an agreement falling within [OSCURATO:PERSONA] 81 EC. 50 [OSCURATO:PERSONA] clearly wrongly equated the hydrogen peroxide producers’ wish or desire to ‘stabilise the market’ with a ‘joint intention’ as that term is used in [OSCURATO:PERSONA] T‑7/89 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [1991] [OSCURATO:PERSONA]‑1711, paragraph 256, and [OSCURATO:PERSONA] T‑9/99 HFB and Others v [OSCURATO:PERSONA] [2002] [OSCURATO:PERSONA]‑1487, paragraph 199. According to those judgments, for there to be an ‘agreement’, the undertakings concerned must have a ‘joint intention to conduct themselves on the market in a particular way’. [OSCURATO:PERSONA] submits, in that regard, that it is not sufficient for the undertakings merely to have discussions which, if they were to be successful, would result in a concurrence of wills to act in an anti‑competitive manner, so achieving their wish or desire to ‘stabilise the market’. 51 [OSCURATO:PERSONA] states that, in the present case, neither the contested decision nor the judgment under appeal can identify any agreement whatsoever or any element of conduct on the market for hydrogen peroxide to which [OSCURATO:PERSONA] was a party. In that regard, [OSCURATO:PERSONA] observes that, in paragraph 138 of that judgment, the [OSCURATO:PERSONA] misapplied the principles set out in paragraph 46 of [OSCURATO:PERSONA] T‑21/99 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2002] [OSCURATO:PERSONA]‑1681. In that judgment, the facts show that there was already an agreement to allocate market shares or an agreement on the principle of allocating market shares, which was not the situation in the present case. 52 [OSCURATO:PERSONA] contests [OSCURATO:PERSONA] line of argument. –       Findings of the [OSCURATO:PERSONA] 53 According to settled case-law, the concepts of agreement and concerted practice within the meaning of [OSCURATO:PERSONA] 81(1) EC are intended, from a subjective point of view, to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves (see, inter alia, T-[OSCURATO:PERSONA] and Others , paragraph 23 and the case-law cited). It is therefore sufficient that proof of the constituent elements of either of those forms of infringement referred to in that provision has been established in order in any event for [OSCURATO:PERSONA] 81(1) EC to apply. 54 It follows that, even on the assumption that the [OSCURATO:PERSONA] erred in law in categorising the conduct in question as an ‘agreement’ within the meaning of [OSCURATO:PERSONA] 81(1) EC, those alleged errors cannot, on their own, lead to the judgment under appeal’s being set aside, since, as is apparent from the examination of the third part of the first ground of appeal and, in particular, from paragraph 47 of this judgment, it was correctly established, in paragraphs 146 to 163 of the judgment under appeal, that the contacts between the hydrogen peroxide producers during the period from May 1995 until August 1997 could, in any event, be categorised as a concerted practice falling within [OSCURATO:PERSONA] 81 EC. 55 [OSCURATO:PERSONA], the second part of the first ground of the appeal must be rejected as ineffective. 56 Since none of the parts put forward in support of the first ground of appeal has been successful, this ground of appeal must be rejected in its entirety. The second ground of appeal, relating to the application of the [OSCURATO:PERSONA] 57 By its second ground of appeal, [OSCURATO:PERSONA] requests the [OSCURATO:PERSONA] to set aside paragraphs 394, 395 and 402 to 427 of the judgment under appeal in so far as, in upholding the contested decision, the [OSCURATO:PERSONA] wrongly found that Arkema had complied on 3 April 2003 with the requirements referred to in the [OSCURATO:PERSONA], before [OSCURATO:PERSONA] did so on 4 April 2003. 58 This ground of appeal is subdivided into two parts. The first part concerns the alleged incorrect assessment of the information provided by an undertaking concerned by the cartel in question and the second part relates to the different assessment of the conditions for granting a leniency measure carried out in a subsequent [OSCURATO:PERSONA] decision. The first part of the second ground of appeal, relating to the alleged incorrect assessment of the information provided by an undertaking concerned by the cartel in question –       Arguments of the parties 59 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] committed, in paragraphs 402 to 415 of the judgment under appeal, errors of law, infringed the principles of legal certainty and legitimate expectations and manifestly distorted the evidence, in its application of point 21 of the [OSCURATO:PERSONA], with regard to a letter sent by Arkema to the [OSCURATO:PERSONA], by fax of 3 April 2003, in which that company indicated that it wished to cooperate and applied for leniency under that notice. 60 [OSCURATO:PERSONA] submits that, in accordance with the [OSCURATO:PERSONA] judgments in [OSCURATO:PERSONA] T‑132/07 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2011] [OSCURATO:PERSONA]‑4091, paragraphs 263 to 265, and [OSCURATO:PERSONA] T‑151/07 Kone and Others v [OSCURATO:PERSONA] [2011] [OSCURATO:PERSONA]‑5313, paragraphs 98 to 105 and 160 to 180, the documents faxed by Arkema on 3 April 2003 had, at that time, no intrinsic evidential value and only did so once Arkema explained their contents to the [OSCURATO:PERSONA] in its subsequent fax of 26 May 2003. [OSCURATO:PERSONA], on 3 April 2003, Arkema did not provide sufficiently precise information to enable the [OSCURATO:PERSONA] to understand and prove how the cartel in question functioned. [OSCURATO:PERSONA], [OSCURATO:PERSONA] takes the view that, in the absence of those subsequent explanations, the [OSCURATO:PERSONA] could not have relied upon the documents faxed on 3 April 2003 to prove an infringement of [OSCURATO:PERSONA] 81 EC. 61 [OSCURATO:PERSONA], [OSCURATO:PERSONA] states that, although the documents faxed on 3 April 2003 are referred to in the contested decision, the judgment in Kone and Others v [OSCURATO:PERSONA] confirms that this is not sufficient in law to demonstrate that they enabled the [OSCURATO:PERSONA] to prove an infringement. [OSCURATO:PERSONA] further observes that, in every case in which the [OSCURATO:PERSONA] cited the documents dated 3 April 2003, it also cited the explanations provided on 26 May 2003 by Arkema, upon which the [OSCURATO:PERSONA] relied to establish the ‘essential facts’ in order to prove the existence of collusion at the meetings concerned, namely, inter alia, the dates and locations of the meetings, their participants, the matters discussed and any agreements or understandings reached. 62 [OSCURATO:PERSONA], [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] was incorrect to uphold, in paragraph 415 of the judgment under appeal, the contested decision’s conclusion that Arkema provided, on 3 April 2003, evidence of ‘significant added value’ within the meaning of point 21 of the [OSCURATO:PERSONA], and, thereby, to hold that [OSCURATO:PERSONA], which first provided its information at a meeting organised on 4 April 2003, was not entitled to be ranked above Arkema under point 23 of that notice. 63 [OSCURATO:PERSONA] contests [OSCURATO:PERSONA] line of argument. –       Findings of the [OSCURATO:PERSONA] 64 It is to be recalled that, when the [OSCURATO:PERSONA] judicature reviews the legality of a decision imposing fines for infringement of the competition rules, it cannot use the [OSCURATO:PERSONA]’s margin of discretion, neither as regards the choice of factors taken into account in the application of the criteria mentioned in the [OSCURATO:PERSONA]’s notice, entitled ‘Guidelines on the method of setting fines imposed pursuant to [OSCURATO:PERSONA] 15(2) of [OSCURATO:PERSONA] 17 and [OSCURATO:PERSONA] 65(5) of the ECSC Treaty’ (OJ 1998 C 9, p. 3) nor as regards the assessment of those factors as regards waiving an in-depth review of the law and of the facts ([OSCURATO:PERSONA] C‑386/10 P Chalkor v [OSCURATO:PERSONA] [2011] ECR I‑0000, paragraph 62). 65 Such a rule also applies where the judicature determines whether the [OSCURATO:PERSONA] applied the [OSCURATO:PERSONA] correctly ([OSCURATO:PERSONA] C‑501/11 P [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] [2013] ECR I‑0000, paragraph 155). The value of evidence provided by undertakings under the 2002 [OSCURATO:PERSONA] in order to cooperate with the [OSCURATO:PERSONA] in the administrative procedure is assessed in connection with the calculation of the amount of the fine. This therefore falls within the scope of the unlimited jurisdiction of the [OSCURATO:PERSONA], referred to in [OSCURATO:PERSONA] 261 TFEU in conjunction with [OSCURATO:PERSONA] 31 of [OSCURATO:PERSONA] 1/2003, under which the [OSCURATO:PERSONA] is empowered, in addition to carrying out a straightforward review of the lawfulness of the penalty, to substitute its own appraisal for the [OSCURATO:PERSONA]’s. 66 Whilst the principles set out by the [OSCURATO:PERSONA] in paragraphs 393 to 396 of the judgment under appeal do not correspond to that case-law, it is necessary, however, to examine the manner in which the [OSCURATO:PERSONA] conducted its review in the present case in order to determine whether it infringed those principles. What matters is the criterion that the [OSCURATO:PERSONA] in fact applied in the specific examination of the added value offered by the cooperation of the undertaking in question with the [OSCURATO:PERSONA] ( [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , paragraph 156). 67 In the present case, the [OSCURATO:PERSONA] examined, in paragraphs 402 to 415 of the judgment under appeal, the evidence in question submitted by Arkema to the [OSCURATO:PERSONA] on 3 April 2003 in order to determine whether that evidence had provided significant added value within the meaning of point 21 of the [OSCURATO:PERSONA]. 68 In that regard, it must be held that the [OSCURATO:PERSONA] carried out an in‑depth review in which it itself assessed that evidence without referring to the [OSCURATO:PERSONA]’s margin of discretion, stating detailed grounds for its own decision. 69 However, that examination involves findings which it is not for the [OSCURATO:PERSONA] of Justice to review in an appeal. Indeed, at this stage of the procedure, the [OSCURATO:PERSONA] of Justice cannot substitute its own appraisal of the significant added value of the evidence in question submitted by Arkema on 3 April 2003 for the appraisal of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA]. 70 In so far as [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] distorted that evidence, it is sufficient to note that this is not obvious from the documents on the [OSCURATO:PERSONA] file. That claim necessarily requires a new assessment of the facts and the evidence to be carried out, so that that company has failed to satisfy the requirements incumbent on it under the settled case-law referred to in paragraph 26 of this judgment. [OSCURATO:PERSONA], that claim must be rejected. 71 With respect to [OSCURATO:PERSONA] claim alleging infringements of the principles of legal certainty and legitimate expectations, it must be rejected, as it is too imprecise. That company does not explain how the [OSCURATO:PERSONA] assessment relating to the significant added value of the evidence in question, submitted by Arkema on 3 April 2003, is vitiated by such alleged infringements. 72 [OSCURATO:PERSONA], the first part of the second ground of appeal must be rejected. The second part of the second ground of appeal, relating to the different assessment of the conditions for granting a leniency measure carried out in a subsequent [OSCURATO:PERSONA] decision –       Arguments of the parties 73 [OSCURATO:PERSONA] alleges that the [OSCURATO:PERSONA] committed, in paragraphs 416 to 426 of the judgment under appeal, errors of law and of procedure, and a manifest distortion of the evidence in its assessment of [OSCURATO:PERSONA] C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to [OSCURATO:PERSONA] 81 [EC] and [OSCURATO:PERSONA] 53 of the EEA Agreement ([OSCURATO:PERSONA] COMP/F/38.645 – Methacrylates) (‘the “Methacrylates” decision’). 74 In that regard, recalling that Arkema’s faxed letter of 3 April 2003 concerned [OSCURATO:PERSONA] investigations in connection with several cartels, including those concerning the hydrogen peroxide and methacrylates sectors, [OSCURATO:PERSONA] observes that, in the “Methacrylates” decision, the [OSCURATO:PERSONA] concluded that the documents annexed to that fax concerning methacrylates did not meet the requirements of point 21 of the [OSCURATO:PERSONA] but that those requirements were subsequently met when Arkema submitted further information to the [OSCURATO:PERSONA] at a later date. 75 [OSCURATO:PERSONA] thus complains that the [OSCURATO:PERSONA] held, in paragraphs 423 to 425 of the judgment under appeal, that the [OSCURATO:PERSONA] was entitled to reach different conclusions in the contested decision and the ‘Methacrylates’ decision in applying point 21 of the [OSCURATO:PERSONA]. In particular, the [OSCURATO:PERSONA] committed two manifest errors of procedure. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] both misunderstood and misapplied [OSCURATO:PERSONA] argument, made at the oral procedure before that court, in relation to the ‘Methacrylates’ decision. [OSCURATO:PERSONA], it manifestly misinterpreted the ‘Methacrylates’ decision by incorrectly holding that the [OSCURATO:PERSONA]’s assessment in that decision concerned not the ranking under the [OSCURATO:PERSONA] but only the percentage reduction in the fine given to Arkema. 76 [OSCURATO:PERSONA] contests [OSCURATO:PERSONA] line of argument. –       Findings of the [OSCURATO:PERSONA] 77 It should be borne in mind that, according to settled case‑law, the principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified (see, inter alia, [OSCURATO:PERSONA] C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 95). 78 It should also be noted that decisions in other cases can give only an indication for the purpose of determining whether there might be discrimination, since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same (see, inter alia, [OSCURATO:PERSONA] C‑167/04 P JCB Service v [OSCURATO:PERSONA] [2006] ECR I‑8935, paragraph 201, and [OSCURATO:PERSONA] C‑76/06 P [OSCURATO:PERSONA] & [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2007] ECR I‑4405, paragraph 60). 79 However, in this case, as the [OSCURATO:PERSONA] observed without any distortion, inter alia, in paragraph 424 of the judgment under appeal, it is sufficient to note that the assessment made in the Methacrylates decision, concerning the documents appended to Annexes A 14 and A 15 to Arkema’s fax of 3 April 2003, did not relate to the same evidence as that at issue in the present case, which was attached in Annexes A 1 to A 13 of the same fax. The individual circumstances of that decision thus clearly differ from those of the contested decision. 80 It follows that [OSCURATO:PERSONA] cannot rely on the assessment made in the ‘Methacrylates’ decision in order to call in question the legality of the assessment made in the context of the present case. 81 [OSCURATO:PERSONA], the second part of the second ground of appeal must be rejected. 82 Since none of the grounds of appeal raised by [OSCURATO:PERSONA] in support of its appeal can be upheld, the appeal must be dismissed in its entirety. The cross‑appeal The single ground of appeal, alleging errors of law committed by the [OSCURATO:PERSONA] as regards the reduction granted to [OSCURATO:PERSONA] in respect of its cooperation The first part of the single ground of appeal, relating to an alleged infringement of the obligation to state reasons –       Arguments of the parties 83 By the first part of its single ground of appeal, the [OSCURATO:PERSONA] contends, first, that, in paragraphs 428 to 437 of the judgment under appeal, the [OSCURATO:PERSONA] failed to respond to a sufficient legal standard to the [OSCURATO:PERSONA]’s arguments on the value of [OSCURATO:PERSONA] leniency submission. It complains, in particular, that the [OSCURATO:PERSONA] held, in paragraph 431 of that judgment, that ‘[i]t is common ground that the evidence adduced by [[OSCURATO:PERSONA]] was widely used in the contested decision to establish the infringement, in particular with respect to the period between 1997 and 2000’. 84 In that regard, the [OSCURATO:PERSONA] does not explain on what basis this would be ‘common ground’, especially since the [OSCURATO:PERSONA]’s reply of 15 September 2009 to a written question of the [OSCURATO:PERSONA] made clear that for the majority of the meetings for the period between August 1997 and February 1998 [OSCURATO:PERSONA] was not the first to submit evidence. In the [OSCURATO:PERSONA]’s submission, it would seem that the [OSCURATO:PERSONA] in paragraph 431 understood, recital 523 of the contested decision as meaning that [OSCURATO:PERSONA] evidence was widely used, whereas that recital actually meant the wide use of the evidence provided by Degussa and Arkema. 85 [OSCURATO:PERSONA], the [OSCURATO:PERSONA] submits that the obligation to state reasons was breached by the fact that there are inconsistencies within the judgment under appeal on the value given to the time of the cooperation and the value given to documentary evidence as opposed to other types of evidence. 86 To that effect, the [OSCURATO:PERSONA] states that the [OSCURATO:PERSONA], in paragraph 435 of the judgment under appeal, mentions a contrast between the small reduction granted to [OSCURATO:PERSONA] and the maximum reduction of 30% granted to Arkema within the band applicable to it, despite the fact that Arkema had submitted additional evidence several weeks after its initial leniency application. In that regard, the [OSCURATO:PERSONA] does not understand why that factor should be relevant in the context of the comparison with [OSCURATO:PERSONA]. [OSCURATO:PERSONA] does not explain coherently its position. 87 Similarly, with respect to paragraph 436 of the judgment under appeal, the [OSCURATO:PERSONA] raises the question of the value of contemporaneous documentary evidence and additional explanations submitted by Arkema as opposed to the oral statement submitted by [OSCURATO:PERSONA]. [OSCURATO:PERSONA] also fails to explain why the oral statement of Arkema should be of great value and as detailed as that of [OSCURATO:PERSONA], when in fact Arkema’s evidence consisted primarily of contemporaneous documents. In any event, paragraphs 435 and 436 contradict paragraph 415 of that judgment. 88 [OSCURATO:PERSONA] contests the [OSCURATO:PERSONA]’s line of argument. –       Findings of the [OSCURATO:PERSONA] 89 It should be borne in mind at the outset that it is settled case-law that the obligation laid down in [OSCURATO:PERSONA] 296 TFEU to state adequate reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (see, inter alia, [OSCURATO:PERSONA] C‑367/95 P [OSCURATO:PERSONA] v Sytraval and [OSCURATO:PERSONA] [1998] ECR I‑1719, paragraph 67, and [OSCURATO:PERSONA] C‑521/09 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2011] ECR I‑8947, paragraph 146). 90 In that vein, the statement of reasons required under [OSCURATO:PERSONA] 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] to exercise its jurisdiction to review legality (see, inter alia, [OSCURATO:PERSONA] C‑17/99 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2001] ECR I‑2481, paragraph 35, and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 147). 91 It is also settled case-law that the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to specify all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of [OSCURATO:PERSONA] 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, [OSCURATO:PERSONA] v Sytraval and [OSCURATO:PERSONA] , paragraph 63, and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 150 and the case-law cited). 92 In this case, it is clear merely from reading paragraphs 430 to 439 of the judgment under appeal that the [OSCURATO:PERSONA] cannot be accused of having failed to fulfil those requirements correctly, and therefore the statement of reasons set out in those paragraphs enabled the persons concerned and, in particular, the [OSCURATO:PERSONA] to ascertain why the [OSCURATO:PERSONA] did not uphold its arguments and provided the [OSCURATO:PERSONA] of Justice with sufficient material to exercise its jurisdiction to review legality. 93 It must be stated that, by relying on its assessment, carried out in paragraphs 430 to 437 of the judgment under appeal, of the material provided by [OSCURATO:PERSONA] in the context of its leniency application in order to conclude, in paragraph 439 of that judgment, that it was appropriate to reduce [OSCURATO:PERSONA] fine by 20% on the basis of its cooperation, the [OSCURATO:PERSONA] necessarily answered, to the sufficient legal standard, the [OSCURATO:PERSONA]’s arguments on the value of that application. With respect to the criticism directed particularly against paragraph 431 of that judgment inasmuch as it is allegedly based on an incorrect reading of recital 523 of the contested decision, it is sufficient, in any event, to observe that it is rather that criticism itself which results from an incorrect reading of the judgment under appeal, paragraph 431 of which is based not on recital 523 as the [OSCURATO:PERSONA] claims, but on recital 515 of that decision. 94 [OSCURATO:PERSONA], it must be stated that paragraphs 435 and 436 of the judgment under appeal do not disclose any incoherence. 95 [OSCURATO:PERSONA], it is clearly apparent from paragraph 435, in conjunction with paragraph 431 of that judgment, that the contrast observed by the [OSCURATO:PERSONA] between the small reduction granted to [OSCURATO:PERSONA] and the maximum reduction of 30% granted to Arkema concerns the time at which the submission was made as well as the extent and continuity of the cooperation provided by those undertakings following the date of their submissions, within the meaning of the second paragraph of point 23(b) of the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] unequivocally regarded as relevant in the context of the comparison with [OSCURATO:PERSONA], which intervened at an early stage in the administrative procedure and provided material on the infringement in question in a continuous manner in particular during April 2003, the fact that the [OSCURATO:PERSONA] found that Arkema submitted additional evidence only on 26 May 2003, several weeks after its initial application, whilst granting it the maximum reduction within the applicable band, namely that provided for in the first paragraph of point 23(b) of the [OSCURATO:PERSONA]. 96 [OSCURATO:PERSONA], it is unambiguously clear from paragraph 436 of the judgment under appeal that the [OSCURATO:PERSONA] held as, inter alia, relevant in the context of the comparison between Arkema’s and [OSCURATO:PERSONA] statements, the fact that [OSCURATO:PERSONA] had adduced witness evidence by individuals participating directly in the cartel in question. 97 [OSCURATO:PERSONA], paragraphs 435 and 436 of the judgment under appeal do not contradict paragraph 415 of that judgment. 98 It is sufficient to observe that paragraphs 435 and 436 of the judgment under appeal concern the assessment of the level of the reduction of the fine granted to [OSCURATO:PERSONA] within the band applicable to the third undertaking, in the light of the criteria referred to in the second paragraph of point 23(b) of the [OSCURATO:PERSONA], whereas paragraph 415 relates to the determination of the band applicable in itself, pursuant to the first paragraph of point 23(b). [OSCURATO:PERSONA], the fact that the [OSCURATO:PERSONA] held in paragraph 415 that Arkema had submitted, by fax of 3 April 2003, evidence of significant added value for the purposes of point 21 of that notice, and, accordingly, confirmed that the band reserved for the second undertaking would be applied to Arkema, cannot mean that the [OSCURATO:PERSONA] made the alleged contradiction and prevent that court from carrying out the assessment made in paragraphs 435 and 436. 99 It follows from all those considerations that the [OSCURATO:PERSONA] did not commit, in paragraphs 430 to 439 of the judgment under appeal, a breach of the obligation to state reasons. [OSCURATO:PERSONA], the first part of the single ground of appeal must be rejected. The second part of the single ground of appeal, relating to the alleged incorrect application of the principle of equal treatment –       Arguments of the parties 100 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] erred in law, in paragraphs 435 and 436 of the judgment under appeal, by comparing the cooperation of Arkema and [OSCURATO:PERSONA] and almost putting them on an equal footing as regards the maximum reduction within their respective bands. 101 [OSCURATO:PERSONA] states that those two companies produced very different submissions qualitatively and in terms of their timing. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] erred in law in treating equally two different situations and aligning [OSCURATO:PERSONA] reduction within its band to the maximum provided for on the basis that Arkema was also granted the maximum reduction within its own band. 102 [OSCURATO:PERSONA] recognises that, in exercising its discretion in determining fines, it must act in accordance with the principle of equal treatment. However, it is the [OSCURATO:PERSONA]’s submission that the situations of [OSCURATO:PERSONA] and Arkema were not comparable and that that difference justified the fact that the maximum reduction of the fine was not granted to [OSCURATO:PERSONA] but was granted to Arkema. 103 [OSCURATO:PERSONA] contests the [OSCURATO:PERSONA]’s line of argument. –       Findings of the [OSCURATO:PERSONA] 104 In the context of its assessment of the cooperation provided by the members of a cartel, the [OSCURATO:PERSONA] is not entitled to disregard the principle of equal treatment which, as was recalled in paragraph 77 of this judgment, is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified. 105 As regards the determination of the level of the reduction of the fine from which undertakings that have submitted a leniency application may benefit under the [OSCURATO:PERSONA], it should be observed that, irrespective of the level of the reduction granted under the first to third indents of the first paragraph of point 23(b) of that notice, which establishes the applicable band according to the chronological order in which those undertakings fulfilled the condition set out at point 21 of that notice, the situations of those undertakings must be regarded as comparable for the purposes of the application of the criteria referred to in the second paragraph of point 23(b). Those criteria are, inter alia, the time at which the submission was made, the extent of the added value of the evidence provided, as well as the extent and continuity of the cooperation, criteria which may be taken into account in order to determine the level of the reduction within that band itself. Those situations must therefore be treated in the same manner within the limits of the applicable band. 106 It follows that, although it was not required to do so on account of the findings set out in paragraphs 431 to 434 of the judgment under appeal, the [OSCURATO:PERSONA] was right and did not err, in the context of the assessment of the level of the reduction of the fine granted to [OSCURATO:PERSONA] within the band applicable to it, for the purposes of the first paragraph of point 23(b) of the [OSCURATO:PERSONA], in carrying out, in paragraphs 435 and 436 of that judgment, a comparison of [OSCURATO:PERSONA] cooperation with Arkema’s in the light of the criteria referred to in the second paragraph of point 23(b). 107 Similarly, the [OSCURATO:PERSONA] was right and did not infringe the principle of equal treatment, in the context of that assessment, in deciding in a coherent and objective manner, in paragraph 439 of that judgment, to grant [OSCURATO:PERSONA] a 20% reduction of the fine amount, corresponding to the maximum reduction within the band applicable to the third undertaking, for the purposes of the first paragraph of point 23(b), in the same way that the [OSCURATO:PERSONA] had granted Arkema the maximum reduction within the band that was applicable to it. 108 In so far as the [OSCURATO:PERSONA]’s line of argument seeks to contest the [OSCURATO:PERSONA] examination, in paragraphs 435 and 436 of the judgment under appeal, of the evidence provided by the undertakings in question in terms of both its quality and the time at which it was submitted, that line of argument must be rejected, since it calls into question findings of a factual nature which it is not for the [OSCURATO:PERSONA] of Justice to review on appeal, as was stated in paragraph 25 of this judgment. 109 By granting a reduction of 20% of the amount of [OSCURATO:PERSONA] fine, which also corresponds to the maximum reduction within the band that was applicable to [OSCURATO:PERSONA], the [OSCURATO:PERSONA] thus reconciled respect for the principle of equal treatment with respect for the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (see [OSCURATO:PERSONA] C‑259/10 and C‑260/10 [OSCURATO:PERSONA] [2011] ECR I‑10947, paragraph 62 and the case‑law cited). 110 It follows from all those considerations that, in paragraphs 435 to 439 of the judgment under appeal, the [OSCURATO:PERSONA] did not err in law in applying the principle of equal treatment. Therefore, the second part of the single ground of appeal must be rejected. The third part of the single ground of appeal, relating to the alleged incorrect application of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] 1/2003 –       Arguments of the parties 111 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] applied incorrectly, in paragraphs 428 to 439 of the judgment under appeal, the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] 23 of [OSCURATO:PERSONA] 1/2003 in holding that the [OSCURATO:PERSONA] had not properly taken account of the time at which [OSCURATO:PERSONA] submission was made, the extent of the added value of the evidence that it had provided, and the extent and continuity of its cooperation within the meaning of the second paragraph of point 23(b) of that notice, and in therefore reaching the conclusion that it was appropriate to grant [OSCURATO:PERSONA] a higher level of reduction. 112 [OSCURATO:PERSONA], the [OSCURATO:PERSONA] maintains that the fact that the evidence adduced by [OSCURATO:PERSONA] concerned the Europe-wide cartel for both products concerned does not constitute a sufficient basis for suggesting that a higher level of reduction ought to have been granted. 113 [OSCURATO:PERSONA], the [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] asserts without any basis, in paragraph 432 of the judgment under appeal, that the information submitted by [OSCURATO:PERSONA] enabled the [OSCURATO:PERSONA] to establish certain key aspects of the cartel in question, namely the existence of firm agreements on coordinated hydrogen peroxide price rises as well as collusion initiatives relating to sodium perborate. [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] did not give adequate value under the [OSCURATO:PERSONA] to the evidence provided by [OSCURATO:PERSONA] in order to reach this unfounded conclusion, which is at odds both with the reliance placed by the [OSCURATO:PERSONA] on [OSCURATO:PERSONA] evidence in the contested decision and with the analysis of the value of that evidence carried out by the [OSCURATO:PERSONA] in that decision. 114 [OSCURATO:PERSONA] claims that the adduction of proof or the corroboration of evidence must be assessed overall as a whole and that it was perfectly justified in finding that the evidence adduced by [OSCURATO:PERSONA] effectively amounted to a corroboration of what it already knew about the overall infringement. In that regard, the [OSCURATO:PERSONA] exceeded its jurisdiction by failing to accord the [OSCURATO:PERSONA] the wide discretion which it is afforded in assessing the relative value of evidence submitted by undertakings under the [OSCURATO:PERSONA]. 115 [OSCURATO:PERSONA] contests the [OSCURATO:PERSONA]’s line of argument. –       Findings of the [OSCURATO:PERSONA] 116 As was observed in paragraphs 64 and 65 of this judgment, when the [OSCURATO:PERSONA] judicature reviews the legality of a decision imposing fines for infringement of the competition rules, it cannot use the [OSCURATO:PERSONA]’s margin of discretion – either as regards the choice of factors taken into account in the application of the criteria mentioned in the [OSCURATO:PERSONA] or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts. 117 It is therefore necessary to examine the manner in which the [OSCURATO:PERSONA] conducted its review in the present case in order to determine whether it infringed those principles. What matters are the criteria that the [OSCURATO:PERSONA] in fact applied in the specific examination of the time at which the submission of the undertaking concerned was made, the extent of the added value of the evidence provided, as well as the extent and continuity of its cooperation, for the purposes of the second paragraph of point 23(b) of the [OSCURATO:PERSONA]. 118 In the present case, the [OSCURATO:PERSONA] examined, in paragraphs 431 to 437 of the judgment under appeal, the evidence in question submitted by [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] in the context of its cooperation in order to determine the level of the reduction of the fine within the band applicable to the third undertaking, for the purposes of the first paragraph of point 23(b) of the [OSCURATO:PERSONA]. 119 In that regard, it must be held that the [OSCURATO:PERSONA] carried out an in‑depth review in which it itself assessed that evidence without referring to the [OSCURATO:PERSONA]’s margin of discretion, stating detailed grounds for its own decision. 120 However, that examination involves findings of fact which it is not for the [OSCURATO:PERSONA] of Justice to review on appeal. Indeed, at that stage of the procedure, the [OSCURATO:PERSONA] of Justice cannot substitute its own appraisal of the evidence in question submitted by [OSCURATO:PERSONA] in the context of its cooperation for the appraisal of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA]. 121 In so far as the [OSCURATO:PERSONA]’s line of argument seeks a review of the reduction of the fine granted to [OSCURATO:PERSONA] by the [OSCURATO:PERSONA], in paragraph 439 of the judgment under appeal, that line of argument cannot succeed since, as far as the extent of the reduction of the fine is concerned, it is not for the [OSCURATO:PERSONA] of Justice to substitute its own assessment for that of the [OSCURATO:PERSONA] exercising its unlimited jurisdiction ([OSCURATO:PERSONA] C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] [2009] ECR I‑8681, paragraph 255 and the case-law cited). 122 [OSCURATO:PERSONA], the third part of the single ground of appeal must be rejected. 123 Since none of the parts of the single ground of appeal put forward by the [OSCURATO:PERSONA] in support of its cross‑appeal can be upheld, that cross‑appeal must be dismissed in its entirety. Costs 124 [OSCURATO:PERSONA] 184(2) of its Rules of Procedure, where the appeal is unfounded, the [OSCURATO:PERSONA] is to make a decision as to costs. [OSCURATO:PERSONA] 138(1) of those Rules, applicable to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 125 As regards the main appeal, since the [OSCURATO:PERSONA] has applied for costs and [OSCURATO:PERSONA] has been unsuccessful, the latter must be ordered to pay the costs. 126 As regards the cross-appeal, since [OSCURATO:PERSONA] has applied for costs against the [OSCURATO:PERSONA] and since the [OSCURATO:PERSONA]’s single ground of appeal has been unsuccessful, the [OSCURATO:PERSONA] must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby 1. Dismisses the main appeal and the cross-appeal; 2. [OSCURATO:PERSONA] SA to pay the costs of the main appeal; 3. [OSCURATO:PERSONA] the [OSCURATO:PERSONA] to pay the costs of the cross-appeal. [Signatures] * Language of the case: English.