Language of document : ECLI:EU:T:1997:108

JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber,Extended Composition)

10 July 1997(1)

(Competition — Consequences of partial annulment by the Court of Justice of adecision relating to a proceeding under Article 85 of the Treaty — Effects of thejudgment on persons to whom the decision was addressed who did not bring anaction for annulment — Article 176 of the Treaty — Request for partial refund offines paid)

In Case T-227/95,

AssiDomän Kraft Products AB, a company incorporated under Swedish law, whoseregistered office is in Stockholm,
AB Iggesunds Bruk, a company incorporated under Swedish law, whose registeredoffice is in Örnsköldsvik, Sweden,
Korsnäs AB, a company incorporated under Swedish law, whose registered officeis in Gävle, Sweden,
MoDo Paper AB, a company incorporated under Swedish law, whose registeredoffice is in Örnsköldsvik, Sweden,

Södra Cell AB, a company incorporated under Swedish law, whose registered officeis in Växjö, Sweden,

Stora Kopparbergs Bergslags AB, a company incorporated under Swedish law,whose registered office is in Falun, Sweden,
Svenska Cellulosa AB, a company incorporated under Swedish law, whoseregistered office is in Sundsvall, Sweden,
represented by John E. Pheasant, solicitor of the Supreme Court of England andWales, and Christophe Raux, of the Paris Bar, with an address for service inLuxembourg at the Chambers of Loesch & Wolter, 11 Rue Goethe,

applicants,

v

Commission of the European Communities, represented by Wouter Wils, of itsLegal Service, acting as Agent, with an address for service in Luxembourg at theoffice of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of the Commission's decision of 4 October 1995rejecting the requests made by the applicants, following the judgment of the Courtof Justice in Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 andC-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECRI-1307, for repayment of the fines imposed on them by Commission Decision85/202/EEC of 19 December 1984 relating to a proceeding under Article 85 of theEEC Treaty (IV/29.725 — Wood pulp) (OJ 1985 L 85, p. 1),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber, ExtendedComposition),



composed of: B. Vesterdorf, President, C.W. Bellamy and A. Kalogeropoulos,Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on11 September 1996,

gives the following

Judgment

Facts

  1. This case is set in the same factual and legal context as the judgment of the Courtof Justice of 31 March 1993 in Joined Cases C-89/85, C-104/85, C-114/85, C-116/85,C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission[1993] ECR I-1307 ('the judgment of 31 March 1993‘ or 'the Wood pulpjudgment‘), in which it partially annulled Commission Decision 85/202/EEC of 19December 1984 relating to a proceeding under Article 85 of the EEC Treaty(IV/29.725 — Wood pulp) (OJ 1985 L 85, p. 1; 'the wood pulp decision‘). Thebackground to the case is set out in that decision and in the Court's judgment.

  2. The seven applicants in this case are undertakings established in Sweden active inthe wood pulp business. They constitute, either in their own right or as successors,ten of the eleven Swedish addressees (numbered 30 to 39) of the wood pulpdecision ('the Swedish addressees‘).

  3. In the wood pulp decision, the Commission found that some of the 43 addresseesof that decision had, during certain specified periods, infringed Article 85(1) of theEEC Treaty, now the EC Treaty ('the Treaty‘), in particular by concerting onprices for bleached sulphate wood pulp.

  4. Article 1 of the wood pulp decision listed the infringements of Article 85 found bythe Commission, the addressees concerned and the relevant periods. Theinfringements relevant to this case found to have been committed by the Swedishaddressees were as follows.

  5. In Article 1(1) of the decision, the Commission stated that the Swedish addressees,with the exception of Billerud-Uddeholm and Uddeholm AB, and other Finnish,American, Canadian and Norwegian producers had concerted 'on prices forbleached sulphate wood pulp announced for deliveries to the European EconomicCommunity‘ during the whole or part of the period from 1975 to 1981.

  6. According to Article 1(2), all the Swedish addressees had infringed Article 85 of theTreaty by concerting on actual transaction prices charged in the Community, atleast to customers in Belgium, France, the Federal Republic of Germany, theNetherlands and the United Kingdom, for bleached sulphate wood pulp.

  7. In Article 3 of the decision, the Commission imposed fines ranging fromECU 50 000 to 500 000 on almost all the addressees. Fines were imposed on nineof the Swedish addressees. Those undertakings did not bring an action forannulment of the decision and paid their fines.

  8. A further 26 of the 43 original addressees of the wood pulp decision, or theirsuccessors, brought actions for annulment of that decision pursuant to Article 173of the Treaty. In its judgment of 31 March 1993 on those actions, the Court ofJustice inter alia annulled Article 1(1) and (2) of the decision, in which it had beenfound that infringements of Article 85(1) of the Treaty had been committed. TheCourt then annulled or reduced the fines imposed on the undertakings which hadinstituted proceedings.

  9. The operative part of the judgment, as far as relevant, reads as follows:

    'The Court ... hereby:

    1.    Annuls Article 1(1) of Commission Decision 85/202/EEC of19 December 1984 relating to a proceeding under Article 85 of the EECTreaty;

    2.    Annuls Article 1(2) of the aforesaid decision;

    ...

    7.    Annuls the fines imposed on the applicants, with the exception of thatimposed on Finncell and with the further exception of those imposed onCanfor, MacMillan, St Anne and Westar, which are reduced toECU 20 000;

    ...‘.

  10. After judgment had been delivered, the applicants, by letter of 24 November 1993,asked the Commission to reconsider their legal position in the light of the judgmentand to refund the fines which they had paid, to the extent that they exceeded thesum of ECU 20 000 upheld by the Court in relation to certain applicants forfindings of infringement which it had not annulled.

  11. The letter of 24 November 1993 is expressed in the following terms:

    '... The Swedish respondents contend that the Commission may not retain the finesthey paid for infringements of Article 85(1) by concertation on announced andtransaction prices once the ECJ has annulled the Commission's relevant findings.

    ...

    The Swedish undertakings who paid fines in respect of infringements ofArticle 85(1) which have now been annulled by the Court are entitled to recoverthose fines. It is clear from the case-law (see, for example, the two Snupat cases —[1959] ECR 127 and [1961] ECR 53) that there is an obligation on the relevantCommunity institution (in this case, the Commission), to review the position ofundertakings in a similar position, where the ECJ makes a ruling which is notaddressed to those undertakings.

    In this case, the Swedish respondents are in an identical position to the wood pulpproducers who appealed the Commission's decision. The Court has annulled theCommission's findings in relation to concertation on announced and transactionprices. The Commission therefore has a duty to review the position of the Swedishrespondents and to return that part of the fines paid by them which relates to thetwo infringements of Article 85(1) which have been annulled.‘

  12. Initially, the Commission informed the applicants by letter of 6 December 1993 thattheir letter of 24 November 1993 had been passed to the Directorate-General forBudgets (DG XIX) for it to consider whether their request could be granted.

  13. The Director-General of the Directorate-General for Competition (DG IV) theninformed the applicants by letter of 4 February 1994 that the Commission wasproposing to reject their request and set a period for them to make anysubmissions.

  14. In their letter of 8 April 1994 replying to the second letter, the applicants asked theCommission to take a final decision on the legal consequences of the judgment of31 March 1993. They repeated that request by letters of 24 October and 21December 1994.

  15. By letter of 4 October 1995 ('letter of 4 October 1995‘ or the 'contesteddecision‘), the Commission member responsible for competition refused to grantthe applicants' request for repayment in the following terms:

    'In your letter of 24 November 1993 you asked the Commission to review theposition of your clients (”the Swedish respondents") in light of the Court'sjudgment of 31 March 1993. More specifically, you requested the Commission toreturn the fines relating to the infringements found in the parts of its decisionwhich had been annulled by the aforesaid judgment. Having received a preliminaryreaction of my services (letter of 4 February 1994 signed by the Director Generalfor Competition), you reiterated your request in your letters of 8 April, 24 Octoberand 21 December 1994.

    I do not see any possibility to accept your request. Article 3 of the decisionimposed a fine on each of the producers on an individual basis. Consequently, inpoint 7 of the operative part of its judgment, the Court annulled or reduced thefines imposed on each of the undertakings who were applicants before it. In theabsence of an application of annulment on behalf of your clients, the Court did notand indeed could not annul the parts of Article 3 imposing a fine on them. Itfollows that the obligation of the Commission to comply with the judgment of theCourt has been fulfilled in its entirety by the Commission reimbursing the fines paidby the successful applicants. As the judgment does not affect the decision withregard to your clients, the Commission was neither obliged nor indeed entitled toreimburse the fines paid by your clients.

    As your clients' payment is based on a decision which still stands with regard tothem, and which is binding not only on your clients but also on the Commission,your request for reimbursement cannot be granted.‘

    Procedure and forms of order sought

  16. By application lodged at the Registry of the Court of First Instance on15 December 1995, the applicants brought this action.

  17. Upon hearing the Report of the Judge-Rapporteur, the Court decided to open theoral procedure and invited the Commission to state its views at the hearing as towhether the judgment of the Court of Justice in Joined Cases 42/59 and 49/59Snupat v High Authority [1961] ECR 53 ('Snupat‘) could be relevant to this case.

  18. At the hearing on 11 September 1996, the parties presented oral argument andreplied to questions put by the Court composed of H. Kirschner, President,B. Vesterdorf, C.W. Bellamy. A. Kalogeropoulos and A. Potocki, Judges.

  19. Following the death of Judge Kirschner on 6 February 1997, this judgment wasdeliberated by the three judges whose signature it bears, in accordance with Article32 of the Rules of Procedure.

  20. The applicants claim that the Court should:

    • annul the decision of 4 October 1995;

    • order the Commission to take all necessary steps to comply with thejudgment of the Court of Justice of 31 March 1993 and, in particular, torepay to the applicants the fines paid by each of them or by theundertakings whose rights and obligations they have taken over, in theamounts set out in Annex 6 to the application;

    • order the Commission to pay, from the date on which the fines were paidby the Swedish addressees until repayment of the sums claimed, interest onthose sums:

    • initially at the rate applied by the European Monetary CooperationFund when the fines were paid, then at the rate applied by theEuropean Monetary Institute, plus 1.5% in each case, or

    • at the base lending rate of the Banque Nationale de Belgique plus1%,

        in the amounts set out in Annex 9 to the application;

    • order the Commission to pay the costs.



  21. The Commission contends that the Court should:

    • dismiss the action as inadmissible;

    • in the alternative, dismiss it as unfounded;

    • order the applicants to pay the costs.

    The first head of claim, seeking annulment of the decision allegedly contained inthe letter of 4 October 1995

    Admissibility

    Arguments of the parties

  22. The Commission submits that the claim for annulment is inadmissible on theground that the letter of 4 October 1995 merely confirms the wood pulp decisionin so far as it relates to the applicants. It therefore does not constitute achallengeable act.

  23. In its view, there is nothing in the letter of 4 October 1995 not in the wood pulpdecision which affects the applicants' legal position. It simply confirms that thedecision still stands as regards the applicants and that there is therefore no reasonto change it.

  24. Although the application is for annulment of a new decision allegedly contained inthe letter of 4 October 1995, it is in fact directed at the wood pulp decision. Sincethe time-limit for bringing an action for annulment of the wood pulp decision haslong since expired, the present application should be declared inadmissible.

  25. The applicants maintain that the letter of 4 October 1995 constitutes achallengeable act for the purposes of Article 173 of the Treaty.

  26. In their view, that letter should be regarded as a new decision in relation to thewood pulp decision. It sets out for the first time the Commission's view as to theobligations imposed on it by the Wood pulp judgment and, on the basis of that view,as to its decision not to refund the fines paid by the applicants and theundertakings whose rights and obligations they have taken over.

  27. It is therefore untrue to state that there is nothing in the letter of 4 October 1995which does not already follow from the wood pulp decision. In that decision, theCommission stated that the applicants had committed various infringements of therules on competition, instructed them to put an end to those infringements andfined them. In its letter of 4 October 1995, on the other hand, the Commissionmade for the first time an unequivocal and final decision not to repay the fines.

  28. The letter is an act which affects immediately and irreversibly the legal position ofthe undertakings concerned (Case 60/81 IBM v Commission [1981] ECR 2639 andJoined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Othersv Commission [1992] ECR II-2667).

    Findings of the Court

  29. It is settled law that actions brought against decisions which merely confirm earlierdecisions that have not been contested within the time-limit are inadmissible(Joined Cases 166/86 and 220/86 Irish Cement v Commission [1988] ECR 6473,paragraph 16, and Case T-275/94 CB v Commission [1995] ECR II-2169,paragraph 27). A measure which merely confirms a previous measure cannotafford those concerned the opportunity of reopening the question of the legality ofthe measure which is confirmed (Snupat, at p. 75).

  30. In this case, the applicants, by their letter of 24 November 1993, asked theCommission to review, in the light of the grounds of the Wood pulp judgment, thelegal effects for them of the wood pulp decision. They asked the Commission inparticular to repay the fines relating to the infringements found to have beencommitted in the parts of that decision annulled by the Wood pulp judgment.

  31. That request for reconsideration was rejected by letter of 4 October 1995, on theground that the Commission had fulfilled its obligation to comply with the Woodpulp judgment by refunding the fines paid to the extent that they had been annulledby the judgment of the Court.

  32. In order to answer the question whether or not the Commission's refusal to reviewthe legality of the wood pulp decision in so far as it relates to the applicants is apurely confirmatory measure, it is essential to consider first whether, in this case,Article 176 of the Treaty required it to carry out such a review.

  33. Only if that is the case should the measure contained in the Commission's letter of4 October 1995, which by implication deals with the scope of its obligations underArticle 176 of the Treaty following the Wood pulp judgment, be regarded as a newdecision which may be challenged by an action for annulment (see to this effectJoined Cases 97/86, 193/86, 99/86 and 215/86 Asteris and Others v Commission[1988] ECR 2181, paragraphs 8, 32 and 33), since that decision would then haveto be regarded as having been adopted in a new legal context compared with thatin which the wood pulp decision was adopted.

  34. Since the question whether the Wood pulp judgment results in an obligation toreview the legality of the wood pulp decision in so far as it concerns the applicantsforms part of the substance of the case, admissibility and substance must beconsidered together.

    Substance

    Arguments of the parties

  35. The applicants' sole plea is that the Commission, by refusing to review the woodpulp decision in relation to them in the light of the Wood pulp judgment and torefund the fines paid by them, disregarded the legal consequences resulting fromthe judgment. That plea is divided into two limbs.

  36. In the first limb, the applicants submit that the Commission disregarded theprinciple of Community law that the effect of a judgment annulling an act is torender that act, in this case the wood pulp decision, null and void erga omnes andex tunc.

  37. It follows from the first paragraph of Article 174 of the Treaty, which does notdraw a distinction as regards the legal effects of a declaration of nullity accordingto the different types of measure, that judgments annulling decisions, such as theone at issue in this case, as well as judgments annulling regulations take effect ergaomnes.

  38. Contrary to the Commission's submissions, the wood pulp decision must beregarded not as a bundle of individual decisions, but as a single decision addressedto a number of undertakings. That view is supported by the Court's findings in theWood pulp judgment that the Commission made no attempt to explain in what waythe infringements recorded in Article 1(1) and (2) of the decision related to eachindividual addressee by specifying the parties between whom and periods in whichthe concertation took place.

  39. It is settled law that a judgment annulling an act takes effect erga omnes (see thejudgments in Case 2/54 Italy v High Authority [1954] ECR 37, in Case 3/54 Assiderv High Authority [1955] ECR 63, in Case 4/54 I.S.A. v High Authority [1955] ECR91, in Case 5/55 Assider v High Authority [1955] ECR 135 and in Snupat, citedabove; the Opinion of Advocate General Lagrange in Joined Cases 28/62, 29/62and 30/62 Da Costa v Nederlandse Belastingadministratie [1963] ECR 31, at p. 40;the Opinion of Advocate General Gand in Case 50/69 R Germany v Commission[1969] ECR 449, at p. 454; the Opinion of Advocate General Dutheillet deLamothe in Joined Cases 9/71 and 11/71 Compagnie d'Approvisionnement andGrands Moulins de Paris v Commission [1972] ECR 391, at p. 409; the judgment inCase 30/76 Küster v Parliament [1976] ECR 1719 and the Opinion of AdvocateGeneral Reischl in that case, at p. 1730; the judgments in Case 76/79 Könecke vCommission [1980] ECR 665, in Case 66/80 International Chemical Corporation vAmministrazione delle Finanze dello Stato [1981] ECR 1191, in Asteris and Othersv Commission, cited above, and in Case 359/87 Pinna v Caisses d'AllocationsFamiliales de la Savoie [1989] ECR 585 as well as the Opinion of Advocate GeneralLenz in that case, points 13 to 16 and 29).

  40. The applicants note that, although the Community judicature has the power to limitthe erga omnes effects of its judgments (see, for example, the judgments of theCourt of First Instance in Case T-30/91 Solvay v Commission [1995] ECR II-1775and in Case T-36/91 ICI v Commission [1995] ECR II-1847), the Court of Justicedid not make use of that power in the Wood pulp judgment. Unlike Article 1(4)of the wood pulp decision, Article 1(1) and (2) was annulled without any limitationas regards the effects of that annulment, so that the findings therein were alsoannulled in so far as they concern the applicants.

  41. According to the applicants, paragraph 7 of the operative part of the judgment,which 'annuls the fines imposed on the applicants‘, cannot affect that assessment. The reference to 'the applicants‘ was inserted solely in order to differentiatebetween the undertakings whose fines the Court annulled in their entirety andthose whose fines it confirmed in whole or in part.

  42. Therefore, the applicants maintain, the Wood pulp judgment requires theCommission, in order to prevent any unjust enrichment, to withdraw the wood pulpdecision in so far as it imposed fines on the Swedish addressees for theinfringements recorded in Article 1(1) and (2) and to repay those fines in part,together with interest at a rate reflecting the advantage gained from possession ofthose sums.

  43. In the second limb of this plea, the applicants claim that the Commission infringedArticle 176 of the Treaty.

  44. That provision requires the institution concerned to take the necessary measuresto comply with a judgment annulling an act, with regard not only to the parties tothe case but to other parties as well. The obligation to comply with a judgmentmeans that the defendant institution must, in particular, review similar cases in thelight of the judgment. In this case, the Commission is required, in particular, toensure that the Swedish addressees who are in a position similar to that of theapplicants before the Court of Justice are placed in the same position as the latter(Snupat, cited above, and also Case 92/78 Simmenthal v Commission [1979] ECR777 and Könecke v Commission, cited above).

  45. To that end, the institution concerned must examine not only the operative part ofthe judgment but also its grounds (Asteris and Others v Commission). Theapplicants point out in that regard that the Wood pulp judgment contains generalconsiderations which apply equally to the findings of infringement against them.

  46. In particular, the Court annulled Article 1(1) of the wood pulp decision on theground that the Commission had failed to explain the probative value of certaindocumentary evidence and to establish that concertation on prices was the onlyplausible explanation for the evidence of parallel conduct which it relied on. Similarly, Article 1(2) was annulled on the ground that the finding of infringementat issue had not been mentioned in the statement of objections; that hadconstituted an infringement of the rights of the defence and thus vitiated theprocedure adopted by the Commission with regard to each of the addressees ofthat statement of objections subsequently charged with being party to thatinfringement. All the fines paid in respect of those findings should therefore havebeen refunded.

  47. The Commission points out that the fundamental question raised in this case iswhether an undertaking upon which the Commission imposed a fine forinfringement of competition law, and which paid that fine without bringing anaction for annulment of the decision, may subsequently demand a refund thereofon the ground that the Community judicature has annulled the fines imposed onother undertakings which were successful in actions for annulment brought withinthe time-limit set.

  48. According to the Commission, that question must be answered in the negative,because decisions imposing fines are individual decisions addressed to separateaddressees. Only the addressee himself can bring an action for annulment of thatdecision. If an addressee decides not to bring such an action within the time-limitset for that purpose, the decision remains, in accordance with Article 189 of theTreaty, valid with regard to him and binding in its entirety. There is, therefore,nothing which requires — or allows — the Commission to repay, even in part, thefines in question. To allow the applicants' claim would be to circumvent the time-limit set by Article 173 of the Treaty.

  49. The Commission disputes the applicants' argument that annulment by the Courtof Article 1(1) and (2) of the wood pulp decision takes effect erga omnes, requiringit to refund the fines paid in respect of the findings in those two paragraphs.

  50. It contends, in that regard, that the applicants are confusing the legal status ofdecisions and regulations. Whereas regulations involve legal consequences forcategories of persons viewed in a general and abstract manner, decisions areindividual administrative acts affecting the legal position of individual addressees. The mere fact that the decisions imposing fines on the applicants were adoptedtogether with those concerning other undertakings involved does not alter theindividual nature of each decision. While annulment of a regulation can havegeneral consequences, annulment of a decision affects the legal position of thesuccessful applicant only.

  51. Since the wood pulp decision in fact constitutes a bundle of individual decisions toseparate addressees, with individually imposed fines, the Wood pulp judgment doesnot take effect erga omnes in the way the applicants mean. That interpretationfinds support in the wording of the operative part of the judgment, according towhich the Court annulled or reduced 'the fines imposed on the applicants‘, thatis to say the fines imposed on the undertakings which had instituted proceedings. The Court could not have annulled the fines imposed on the Swedish addressees.

  52. The Commission counters the assertion that it infringed Article 176 of the Treatyby arguing that it met in full its obligation to comply with the Wood pulp judgmentby refunding the fines paid by the applicants who were successful in theproceedings before the Court of Justice. It is not obliged, or even permitted, torefund the fines of the Swedish addressees, the applicants in this case.

  53. Finally, the applicants' assertion that the Commission is required to ensure that theSwedish addressees in a position similar to that of the applicants before the Courtof Justice are placed in the same position as the latter is manifestly incorrect. TheSwedish addressees are not in the same position as the other addressees of thedecision for the very reason that they did not bring proceedings for annulmentwithin the time-limit set by Article 173 of the Treaty.

  54. The Commission submitted at the hearing, in reply to a question from the Court,that the solution in Snupat, cited above, cannot be applied to this case. There aremajor differences in context between the two cases (see, in addition to thejudgment in Snupat, the judgments in Joined Cases 32/58 and 33/58 Snupat v HighAuthority [1959] ECR 127 and in Case 14/61 Hoogovens v High Authority [1962]ECR 253). First, Snupat, unlike the Swedish addressees, had in fact had recourse,in due time, to all the legal remedies open to it for challenging the decisions of theHigh Authority which adversely affected it. Secondly, Snupat concerned anequalization scheme which, by its very nature, established a link between the HighAuthority's treatment of various undertakings. The exemptions granted to certainundertakings resulted automatically in increased levies for the others, including theapplicant Snupat. There is no such link between the addressees in this case.

    Findings of the Court

  55. The applicants' argument that the Wood pulp judgment took effect erga omnesneeds to be considered first. In their view, the judgment annulled Article 1(1) and(2) of the wood pulp decision without limiting the scope of the annulment, so thatthe findings of infringement made by the Commission in those provisions wereannulled in relation to the applicants as well.

  56. That argument cannot be accepted. Admittedly, there is no reason at all why theCommission should not adopt a single decision covering several infringements, evenif some of the undertakings to which it is addressed are unconnected with some ofthose infringements, provided that the decision permits each addressee to obtaina clear picture of the complaints made against it (Joined Cases 40/73 to 48/73,50/73, 54/73, 55/73, 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others vCommission [1975] ECR 1663, paragraph 111); however, the wood pulp decision,although drafted and published in the form of a single decision, must be treated asa bundle of individual decisions making a finding or findings of infringement againsteach of the undertakings to which it is addressed and, where appropriate, imposinga fine. Accordingly, had the Commission so wished, it could have formally adopteda number of distinct individual decisions recording the infringements of Article 85of the Treaty which it had found.

  57. Moreover, that assessment is substantiated by the wording of the operative part ofthe wood pulp decision which makes findings of infringement for each undertakingindividually and accordingly imposes individual fines on the addressees of thedecision (see, in particular, Articles 1 and 3 of the decision).

  58. Under Article 189 of the Treaty, each of those individual decisions forming part ofthe wood pulp decision is binding in its entirety on the undertaking to which it isaddressed. Therefore, where an addressee did not bring an action underArticle 173 for annulment of the wood pulp decision in so far as that decisionrelates to it, the decision continues to be valid and binding on it (see, to the sameeffect, Case C-188/92 TWD Textilwerke Deggendorf v Germany [1994] ECR I-833,paragraph 13).

  59. Accordingly, if an addressee decides to bring an action for annulment, theCommunity judicature has before it only the elements of the decision which relateto that addressee. The unchallenged elements of the decision relating to otheraddressees, on the other hand, do not form part of the subject-matter of thedispute which the Court is called on to resolve.

  60. In an action for annulment, the Court can give judgment only on the subject-matterof the dispute referred to it by the parties. A decision such as wood pulp,therefore, can be annulled only as regards the addressees who have been successfulin their actions before the Court.

  61. This Court considers, therefore, that paragraphs 1 and 2 of the operative part ofthe Wood pulp judgment must be interpreted as annulling Article 1(1) and (2) ofthe wood pulp decision only in so far as those provisions concern the parties whohad been successful in their actions before the Court of Justice. That assessmentis, moreover, borne out by paragraph 7 of the operative part of the judgment,according to which only the 'fines imposed on the applicants‘ are annulled orreduced.

  62. As the Commission has correctly stated, the case-law relied on by the applicants insupport of their argument that the judgment took effect erga omnes is irrelevant tothis case, since each of the judgments cited concerns different points of law arisingfrom highly specific factual situations.

  63. The first limb of the plea must therefore be rejected as unfounded.

  64. Next, it is necessary to examine the second limb of the plea, to the effect that theCommission infringed Article 176 of the Treaty by disregarding its obligation toreview the legality of the wood pulp decision in so far as it relates to the Swedishaddressees.

  65. Under the first paragraph of Article 176 of the Treaty, 'the institution orinstitutions whose act has been declared void ... shall be required to take thenecessary measures to comply with the judgment of the Court of Justice‘.

  66. In its letter of 4 October 1995, the Commission refused to review, in the light ofthe Wood pulp judgment, the legal position of the Swedish addressees with regardto the wood pulp decision and, in particular, to consider whether compliance withthe judgment entailed repayment of the whole or part of the fines imposed by thedecision on the addressees who had not brought an action for annulment. TheCommission justified that refusal on the ground that it was, in any event, neitherobliged nor even entitled to refund the fines paid by the Swedish addressees.

  67. In view of that argument, it is necessary, first, to consider whether the Commissionwas required under Article 176 of the Treaty to review, in the light of the Woodpulp judgment, the legality of the wood pulp decision in so far as it relates to theaddressees who did not bring an action for annulment within the time-limit. It willthen, if necessary, be for the Court to establish whether the Commission wasentitled in this instance to refuse to carry out a review on the ground that it wasneither obliged nor even entitled to repay the fines.

  68. In order to determine the scope of the obligations imposed in this instance on theCommission by Article 176 of the Treaty, it is necessary to define the meaning ofthe obligation to take 'the necessary measures to comply with the judgment‘ inorder to ascertain whether that obligation also encompassed measures relating tothe addressees of the wood pulp decision who had not brought an action forannulment within the time-limit set by Article 173 of the Treaty.

  69. The wording of Article 176 of the Treaty does not support the conclusion that theobligation referred to in that provision is restricted solely to the legal positions ofthe parties to the dispute which gave rise to the judgment in question. Thus itcannot be automatically ruled out that the measures that the institution concernedmust adopt may, in exceptional cases, extend beyond the specific context of thedispute which resulted in the judgment of annulment in order to eradicate theeffects of the illegalities found in that judgment (see to this effect Asteris and Othersv Commission, paragraphs 28 to 31).

  70. Such an approach has been adopted by the Court in the context of Article 34 ofthe ECSC Treaty, which imposes on the institution concerned obligations similarto those laid down by Article 176 of the EC Treaty. The Court stated in Snupat,cited above, that the High Authority was required, following a judgment in whichit had been held that an administrative act granting the applicant benefits in theform of exemptions was unlawful, to re-examine its previous position with regardto the legality of those exemptions and to consider whether similar decisionsadopted previously, in favour of other undertakings, could be retained havingregard to the principles laid down in that judgment. Furthermore, it could incertain circumstances be required under the principle of legality to revoke thosedecisions (pp. 79 and 86, 87 and 88).

  71. Three findings are relevant to establishing whether that case-law can be applied inthis case. First, the Wood pulp judgment annuls part of an act made up of anumber of individual decisions which were adopted on completion of the sameadministrative procedure. Secondly, not only were the applicants in this caseaddressees of that same act, but they were fined for alleged infringements ofArticle 85 of the Treaty which the Wood pulp judgment set aside in relation to theaddressees of the act who had brought an action under Article 173 of the Treaty. Thirdly, the individual decisions adopted in relation to the applicants in this caseare, in their view, based on the same findings of fact and the same economic andlegal analyses as those declared invalid by the judgment.

  72. Accordingly, the institution concerned may be required under Article 176 of theTreaty to consider, pursuant to a request made within a reasonable period, whetherit needs to take measures in relation not only to the successful parties but also tothe addressees of that act who did not bring an action for annulment. Where theeffect of a judgment of the Court of Justice is to set aside a finding thatArticle 85(1) of the Treaty was infringed, on the ground that the concerted practicecomplained of was not proved, it would be inconsistent with the principle of legalityfor the Commission not to have a duty to examine its initial decision in relation toanother party to the same concerted practice based on identical facts.

  73. Next, it is appropriate to determine the obligations which follow from the Woodpulp judgment and to establish, in the light of the principles which have just beenset out, the extent to which that judgment requires the Commission to review thelegal position of the Swedish addressees in relation to the wood pulp decision. Forthis purpose, both the operative part and the grounds have to be examined.

  74. The Court of Justice has held that, in order to comply with a judgment of that kindand to implement it fully, the institution concerned is required to have regard notonly to the operative part of the judgment but also to the grounds which led to thejudgment and constitute its essential basis, in so far as they are necessary todetermine the exact meaning of what is stated in the operative part. It is thosegrounds which, on the one hand, identify the precise provision held to be illegaland, on the other, disclose the specific reasons which underlie the finding ofillegality contained in the operative part and which the institution concerned musttake into account when replacing the measure annulled (Asteris and Others vCommission, paragraph 27).

  75. In this case, the Court annulled Article 1(1) of the wood pulp decision on the basisof considerations which apply generally to the Commission's analysis of the woodpulp market and are not founded on any examination of conduct or practices onthe part of individual addressees of the wood pulp decision.

  76. In that provision of the decision, the Commission found that wood pulp producers —including all the Swedish addressees who are applicants in this case — had concertedon prices for bleached sulphate wood pulp announced for deliveries to theCommunity in the whole or part of the period from 1975 to 1981, as evidenced bya system of quarterly price announcements.

  77. However, the Court of Justice held that the system of quarterly priceannouncements did not in itself infringe Article 85(1) of the Treaty (paragraphs 64and 65 of the judgment) and rejected as unfounded the Commission's argumentthat the system of price announcements was evidence of concertation at an earlierstage (paragraphs 66 to 127 of the judgment).

  78. As regards this last argument, the Court began by excluding the telexes referred toin paragraph 61 et seq. of the wood pulp decision as evidence of the infringementfound against the applicants, since the Commission was unable to specify theprobative value of those documents.

  79. It then held, with regard to the other evidence put forward by the Commission, thatit had not been established that concertation on prices was the only plausibleexplanation for the evidence of parallel conduct in the market.

  80. The Court, relying on experts' reports, was able to hold that the system of priceannouncements could be regarded as a rational response to the fact that the pulpmarket constituted a long-term market and to the need felt by both buyers andsellers to limit commercial risks. The similarity in the dates of priceannouncements could be regarded as a direct result of the high degree of markettransparency, which did not have to be described as artificial. Finally theparallelism of prices and the price trends could, according to the Court, besatisfactorily explained by the oligopolistic tendencies of the market and by thespecific circumstances prevailing in certain periods (paragraph 126 of thejudgment).

  81. Therefore, in the absence of a firm, precise and consistent body of evidence ofprior concertation, the Court held that concertation regarding announced priceshad not been established by the Commission (paragraph 127 of the judgment).

  82. Those findings by the Court of Justice — relating generally to the validity of theCommission's economic and legal assessment of parallel conduct observed on themarket — have the potential to raise serious doubts as to the legality of the woodpulp decision in so far as it records, in Article 1(1), that the Swedish addresseesalso infringed Article 85(1) of the Treaty by concerting on prices for bleachedsulphate wood pulp announced for deliveries to the Community during the periodsspecified.

  83. While the Commission states in paragraph 82 of the wood pulp decision that itrelied on different kinds of direct or indirect exchange of data as proof ofconcertation in addition to the parallel conduct which it established (see alsoparagraph 66 of the Wood pulp judgment), it is apparent from the Commission'sreplies to the questions put by the Court of Justice that the main evidence of theinfringement recorded came from observation of parallel behaviour on the market. According to the Commission, a finding of concertation on announced ortransaction prices was not made, in any case, solely on the basis of the telexes orother documents set out in paragraphs 61 to 70 of the wood pulp decision (seeparagraph VII.F of the Report for the Hearing in the Wood pulp case, p. I-1416).

  84. Accordingly, even if those documents might constitute the basis for establishing, asagainst some of the Swedish addressees, the whole or part of the findings in theoperative part of the wood pulp decision (see, in that regard, the Opinion ofAdvocate General Darmon in the case, points 464 to 476), the fact remains that theCourt rejected the main evidence relied on by the Commission against all theaddressees of the decision to prove that there had been concertation on prices and,therefore, that Article 85 of the Treaty had been infringed. In this respect, thejudgment clearly has the potential to affect the Commission's findings relating tothe Swedish addressees.

  85. The Court finds, therefore, without there being any need to consider the effectwhich the Court of Justice's findings in paragraph 40 et seq. of the Wood pulpjudgment, regarding the defects in the statement of objections, may have onestablishing that the Swedish addressees committed an infringement by concertingon transaction prices, that, following the applicants' request, the Commission wasrequired — in accordance with Article 176 of the Treaty and the principle of goodadministration — to review, in the light of the grounds of the Wood pulp judgment,the legality of the wood pulp decision in so far as it relates to the Swedishaddressees and to determine on the basis of such an examination whether it wasappropriate to repay the fines.

  86. It follows that the letter of 4 October 1995, far from amounting merely toconfirmation of the assessment made when the wood pulp decision was adopted,necessarily contains a decision by the Commission, taken pursuant to Article 176of the Treaty, that the grounds of the Wood pulp judgment did not require it toreconsider its previous position. That was a new decision which the applicantscould challenge, as they did within the time-limit by bringing this action. Accordingly, the action is admissible.

  87. The judgment in TWD Textilwerke Deggendorf, cited above, does not stand in theway of that assessment, since the latter does not allow the applicants to circumventthe time-limit for bringing an action, or consequently, the definitive nature of thewood pulp decision for them. In contrast to TWD Textilwerke Deggendorf, in whichthe undertaking in question sought to plead, in the context of proceedings for apreliminary ruling, the unlawfulness of a decision which it had not challenged withinthe time-limit laid down by Article 173, in this case the Court is not reviewing theinitial decision, that is to say the wood pulp decision, but a new decision adoptedpursuant to Article 176 of the Treaty.

  88. In so far as the Commission were to conclude, on the basis of a re-examination ofthe wood pulp decision pursuant to Article 176 of the Treaty, that certain findingsto the effect that the Swedish addressees had infringed Article 85 of the Treatywere unlawful, it is appropriate, at this stage in the Court's reasoning, to examinethe Commission's arguments that it was, moreover, neither obliged, nor indeedentitled, to repay the fines.

  89. With regard to the question whether the Commission is entitled to makerepayment, the Court notes that, while there are no specific provisions governingthe withdrawal or revocation of decisions adopted by the Commission underArticles 3 and 15 of Council Regulation No 17 of 6 February 1962, First Regulationimplementing Articles 85 and 86 of the Treaty (OJ, English Special Edition1959-62, p. 87), finding that those articles have been infringed and imposing finesfor such infringements, that regulation does not prevent the Commission from re-examining such a decision in relation to an individual when an element of it isunlawful.

  90. In that regard, it is helpful to recall the case-law regarding withdrawal ofadministrative acts conferring individual rights or similar benefits upon theaddressee. The Court has acknowledged that the Community institutions areentitled, subject to the principles of the protection of legitimate expectations andof legal certainty, to withdraw, on the ground that it is unlawful, a decision grantinga benefit to its addressee (Joined Cases 7/56 and 3/57 to 7/57 Algera and Others vCommon Assembly [1957] ECR 39, Case 14/81 Alpha Steel v Commission [1982]ECR 749 and Case 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987]ECR 1005).

  91. That case-law applies a fortiori in situations where, as in this case, the decision inquestion merely imposes burdens or penalties on the individual. In such cases, theCommission is not precluded from withdrawing the decision by considerationsrelating to the protection of the legitimate expectations and vested rights of theperson to whom the decision was addressed.

  92. Accordingly, if the Commission were to conclude, on the basis of a re-examinationof the wood pulp decision in the light of the grounds of the Wood pulp judgment,that certain findings to the effect that the Swedish addressees had infringedArticle 85 of the Treaty were unlawful, it would be authorized to refund the finespaid in accordance with those findings. In that case, if Article 176 were not to bedeprived of all its practical effect, the Commission would also be required, inaccordance with the principles of legality and of good administration, to repay thosefines, as they would have no legal basis.

  93. The Commission cannot object that repayment of the fines would be precluded bybudgetary rules. Those rules, whose purpose is to ensure proper financialmanagement within the institutions, may not be relied on to restrict the protectionof the rights of individuals or to prevent the Community institutions from complyingwith a judgment annulling an act.

  94. It follows from the foregoing that the Commission's decision is vitiated by an errorof law, in so far as it indicates that the Commission was neither obliged nor entitledto refund the fines paid by the applicants.

  95. The Commission's decision, contained in the letter of 4 October 1995 rejecting theapplicants' request that it review the legality of the wood pulp decision in so far asit relates to them, must therefore be annulled.

    The second and third heads of claim, seeking an order requiring the Commissionto refund, with interest, part of the fines paid by the applicants

  96. In their last two heads of claim, the applicants seek an order requiring theCommission to take all the necessary measures to comply with the Wood pulpjudgment and, in particular, to refund, together with interest, part of the fines paidby them.

  97. Those heads of claim, which seek the issue of directions to the Commission, areinadmissible, since the Community judicature, when exercising the jurisdiction toannul acts conferred on it by Article 173 of the Treaty, is not entitled to issuedirections to the Community institutions (see, for example Consorzio Cooperatived'Abruzzo v Commission, paragraph 18).

  98. Article 176 of the Treaty provides for a division of powers between the judicial andadministrative authorities, under which it is for the institution whose act has beendeclared void to determine what measures are required in order to comply with ajudgment annulling an act, such as the Wood pulp judgment, and to exercise, subjectto review by the Community judicature, the discretion which it enjoys in that regardwhile respecting the operative part and grounds of the judgment which it isrequired to comply with and the provisions of Community law (Asteris and Othersv Commission).

  99. The decision whether or not to withdraw the wood pulp decision, possibly in part,is in the first place a matter for the Commission. The Court cannot take the placeof the Commission, which is required to carry out that assessment pursuant toArticle 176 of the Treaty.

  100. The second and third heads of claim must therefore be rejected as inadmissible.

    Costs

  101. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the applicants have applied for costs and the Commission hasessentially been unsuccessful, it must be ordered to pay the costs.

    On those grounds,

    THE COURT OF FIRST INSTANCE (Second Chamber, ExtendedComposition)

    hereby:

    1. Annuls the Commission's decision, contained in the letter of4 October 1995, rejecting the applicants' request that it review, in the lightof the judgment of the Court of Justice in Joined Cases C-89/85, C-104/85,C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiöand Others v Commission [1993] ECR I-1307, the legality of CommissionDecision 85/202/EEC of 19 December 1984 relating to a proceeding underArticle 85 of the EEC Treaty (IV/29.725 — Wood pulp) in so far as the latterrelates to them;

    2. Dismisses the action as inadmissible in so far as it seeks the issue ofdirections to the Commission;

    3. Orders the Commission to pay the costs.



Vesterdorf                    Bellamy
Kalogeropoulos

Delivered in open court in Luxembourg on 10 July 1997.

H. Jung

B. Vesterdorf

Registrar

President

1: Language of the case: English.

ECR