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Language of document : ECLI:EU:T:1998:93

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

14 May 1998 (1)

(Competition Article 85(1) of the EC Treaty Rights of the defence Proofof participation in collusion Information exchange Order Fine Statementof reasons Determination of the amount Cooperation during theadministrative procedure)

In Case T-311/94,

BPB de Eendracht NV (formerly Kartonfabriek de Eendracht NV), a companyincorporated under Dutch law, with its registered office in Appingedam,Netherlands, represented by Alexandre Vandencasteele, of the Brussels Bar, andGordon Boyd Buchanan Jeffrey, Solicitor, Liverpool, with an address for service inLuxembourg at the Chambers of Arendt & Medernach, 8-10 Rue Mathias Hardt,

applicant,

Commission of the European Communities, represented initially by Richard Lyal,of its Legal Service, and Rosemary Caudwell, a national official seconded to theCommission, acting as Agents, subsequently by Richard Lyal and James Flynn,Barrister, of the Bar of England and Wales, with an address for service in

Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, WagnerCentre, Kirchberg,

defendant,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber, ExtendedComposition),

composed of: B. Vesterdorf, President, C.P. Briët, P. Lindh, A. Potocki and J.D.Cooke, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing which took placefrom 25 June to 8 July 1997,

gives the following

Judgment

Facts

1.

This case concerns Commission Decision 94/601/EC of 13 July 1994 relating to aproceeding under Article 85 of the EC Treaty (IV/C/33.833 Cartonboard,OJ 1994 L 243, p. 1), as corrected prior to its publication by a Commission decisionof 26 July 1994 (C(94) 2135 final) (hereinafter 'the Decision). The Decisionimposed fines on 19 producers supplying cartonboard in the Community on theground that they had infringed Article 85(1) of the Treaty.

2.

The product with which the Decision is concerned is cartonboard. The Decisionrefers to three types of cartonboard, designated as 'GC, 'GD and 'SBS grades.

3.

GD grade cartonboard (hereinafter 'GD cartonboard) is white-lined chipboard(recycled paper) which is normally used for the packaging of non-food products.

4.

GC grade cartonboard (hereinafter 'GC cartonboard) is cartonboard with a whitetop layer and is normally used for the packaging of food products. GC cartonboard

is of higher quality than GD cartonboard. During the period covered by theDecision there was normally a price differential of approximately 30% betweenthose two products. High quality GC cartonboard is also used, but to a lesserextent, for graphic purposes.

5.

SBS is the abbreviation used to refer to cartonboard which is white throughout(hereinafter 'SBS cartonboard). The price of this cartonboard is approximately20% higher than that of GC cartonboard. It is used for the packaging of foods,cosmetics, medicines and cigarettes, but is designated primarily for graphic uses.

6.

By letter of 22 November 1990, the British Printing Industries Federation ('BPIF),a trade organisation representing the majority of printed carton producers in theUnited Kingdom, lodged an informal complaint with the Commission. It claimedthat the producers of cartonboard supplying the United Kingdom had introduceda series of simultaneous and uniform price increases and requested the Commissionto investigate whether there had been an infringement of the Communitycompetition rules. In order to ensure that its initiative received publicity, the BPIFissued a press release. The content of that press release was reported in thespecialised trade press in December 1990.

7.

On 12 December 1990, the Fédération Française du Cartonnage also lodged aninformal complaint to the Commission, making allegations relating to the Frenchcartonboard market which were similar to those made in the BPIF complaint.

8.

On 23 and 24 April 1991, Commission officials acting pursuant to Article 14(3) ofCouncil Regulation No 17 of 6 February 1962, First Regulation implementingArticles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87,hereinafter 'Regulation No 17), carried out simultaneous investigations withoutprior notice at the premises of a number of undertakings and trade associationsoperating in the cartonboard sector.

9.

Following those investigations, the Commission sent requests for both informationand documents to all the addressees of the Decision pursuant to Article 11 ofRegulation No 17.

10.

The evidence obtained from those investigations and requests for information anddocuments led the Commission to conclude that from mid-1986 until at least (inmost cases) April 1991 the undertakings concerned had participated in aninfringement of Article 85(1) of the Treaty.

11.

The Commission therefore decided to initiate a proceeding under Article 85 of theTreaty. By letter of 21 December 1992 it served a statement of objections on eachof the undertakings concerned. All the addressees submitted written replies. Nineundertakings requested an oral hearing. A hearing was held on 7, 8 and 9 June1993.

12.

At the end of that procedure the Commission adopted the Decision, which includesthe following provisions:

'Article 1

Buchmann GmbH, Cascades SA, Enso-Gutzeit Oy, Europa Carton AG, Finnboard the Finnish Board Mills Association, Fiskeby Board AB, Gruber & Weber GmbH& Co KG, Kartonfabriek de Eendracht NV (trading as BPB de Eendracht NV),NV Koninklijke KNP BT NV (formerly Koninklijke Nederlandse PapierfabriekenNV), Laakmann Karton GmbH & Co KG, Mo Och Domsjö AB (MoDo), Mayr-Melnhof Gesellschaft mbH, Papeteries de Lancey SA, Rena Kartonfabrik A/S,Sarrió SpA, SCA Holding Ltd (formerly Reed Paper & Board (UK) Ltd), StoraKopparbergs Bergslags AB, Enso Española SA (formerly Tampella Española SA)and Moritz J. Weig GmbH & Co KG have infringed Article 85(1) of the EC Treatyby participating,

in the case of Buchmann and Rena from about March 1988 until at leastthe end of 1990,

in the case of Enso Española, from at least March 1988 until at least theend of April 1991,

in the case of Gruber & Weber from at least 1988 until late 1990,

in the other cases, from mid-1986 until at least April 1991,

in an agreement and concerted practice originating in mid-1986 whereby thesuppliers of cartonboard in the Community

met regularly in a series of secret and institutionalised meetings to discussand agree a common industry plan to restrict competition,

agreed regular price increases for each grade of the product in eachnational currency,

planned and implemented simultaneous and uniform price increasesthroughout the Community,

reached an understanding on maintaining the market shares of the major producers at constant levels, subject to modification from time to time,

increasingly from early 1990, took concerted measures to control the supplyof the product in the Community in order to ensure the implementation ofthe said concerted price rises,

exchanged commercial information on deliveries, prices, plant standstills,order backlogs and machine utilisation rates in support of the abovemeasures.

(...)

Article 3

The following fines are hereby imposed on the undertakings named herein inrespect of the infringement found in Article 1:

(...)

(viii) Kartonfabriek De Eendracht NV (trading as BPB De EendrachtNV), a fine of ECU 1 750 000;

(...)

13.

According to the Decision, the infringement took place within a body known as the'Product Group Paperboard (hereinafter 'the PG Paperboard), which comprisedseveral groups or committees.

14.

In mid-1986 a group entitled the 'Presidents Working Group (hereinafter 'thePWG) was established within that body. This group brought together seniorrepresentatives of the main suppliers of cartonboard in the Community (some eightsuppliers).

15.

The PWG's activities consisted, in particular, in discussion and collaborationregarding markets, market shares, prices and capacities. In particular, it took broaddecisions on the timing and level of price increases to be introduced by producers.

16.

The PWG reported to the 'President Conference (hereinafter 'the PC), in whichalmost all the managing directors of the undertakings in question participated(more or less regularly). The PC met twice each year during the period inquestion.

17.

In late 1987 the Joint Marketing Committee (hereinafter 'the JMC) was set up. Its main task was, on the one hand, to determine whether, and if so how, priceincreases could be put into effect and, on the other, to prescribe the methods ofimplementation for the price initiatives decided by the PWG, country-by-countryand for the major customers, in order to achieve a system of equivalent prices inEurope.

18.

Lastly, the Economic Committee discussed, inter alia, price movements in nationalmarkets and order backlogs, and reported its findings to the JMC or, until the end

of 1987, to the Marketing Committee, the predecessor of the JMC. The EconomicCommittee was made up of marketing managers of most of the undertakings inquestion and met several times a year.

19.

According to the Decision, the Commission also took the view that the activities ofthe PG Paperboard were supported by an information exchange organised by Fides,a secretarial company, whose registered office is in Zurich, Switzerland. TheDecision states that most of the members of the PG Paperboard sent periodicreports on orders, production, sales and capacity utilisation to Fides. Under theFides system, those reports were collated and the aggregated data were sent to theparticipants.

20.

The applicant, BPB de Eendracht NV (formerly Kartonfabriek de Eendracht NV),produces GD cartonboard. According to the Commission, the applicantparticipated in meetings of the PC, the JMC and the Economic Committee frommid 1986 until April 1991.

Procedure

21.

The applicant brought this action by application lodged at the Registry of the Courton 7 October 1994.

22.

Sixteen of the eighteen other undertakings held to be responsible for theinfringement have also brought actions to contest the Decision (Cases T-295/94,T-301/94, T-304/94, T-308/94, T-309/94, T-310/94, T-317/94, T-319/94, T-327/94, T-334/94, T-337/94, T-338/94, T-347/94, T-348/94, T-352/94 and T-354/94).

23.

The applicant in Case T-301/94, Laakmann Karton GmbH, withdrew its action byletter lodged at the Registry of this Court on 10 June 1996 and the case wasremoved from the Register by order of 18 July 1996 (Case T-301/94 LaakmannKarton GmbH v Commission, not published in the ECR).

24.

Four Finnish undertakings, members of the trade association Finnboard, and assuch held jointly and severally liable for payment of the fine imposed on Finnboard,have also brought actions against the Decision (Joined Cases T-339/94, T-340/94,T-341/94 and T-342/94).

25.

Lastly, an action was also brought by an association, CEPI-Cartonboard, which wasnot an addressee of the Decision. However, it withdrew its action by letter lodgedat the Registry of the Court on 8 January 1997 and the case was removed from theRegister of the Court by order of 6 March 1997 (Case T-312/94 CEPI-Cartonboardv Commission, not published in the ECR).

26.

By letter of 5 February 1997 the Court requested the parties to take part in aninformal meeting with a view, in particular, to their presenting observations on a

possible joinder of Cases T-295/94, T-304/94, T-308/94, T-309/94, T-310/94,T-311/94, T-317/94, T-319/94, T-327/94, T-334/94, T-337/94, T-338/94, T-347/94,T-348/94, T-352/94 and T-354/94 for the purposes of the oral procedure. At thatmeeting, which took place on 29 April 1997, the parties agreed to such a joinder.

27.

In reply to a written question from the Court, the Commission stated in a fax of 20May 1997 that documents concerning the Association of CartonboardManufacturers ('ACBM) which had not been sent to the applicant during theadministrative procedure before the Commission could be disclosed to it. By letterof 21 May 1997 the Court's Registry informed the applicant that it was possible toconsult those documents.

28.

By order of 4 June 1997 the President of the Third Chamber, ExtendedComposition, of the Court, in view of the connection between the abovementionedcases, joined them for the purposes of the oral procedure in accordance withArticle 50 of the Rules of Procedure and allowed an application for confidentialtreatment submitted by the applicant in Case T-334/94.

29.

By order of 20 June 1997 he allowed an application for confidential treatmentsubmitted by the applicant in Case T-337/94 which related to a document producedin response to a written question from the Court.

30.

Upon hearing the report of the Judge Rapporteur, the Court (Third Chamber,Extended Composition) decided to open the oral procedure and adopted measuresof organisation of procedure in which it requested the parties to reply to certainwritten questions and to produce certain documents. The parties complied withthose requests.

31.

The parties in the cases referred to in paragraph 26 above presented oral argumentand gave replies to the Court's questions at the hearing which took place from25 June to 8 July 1997.

Forms of order sought

32.

The applicant claims that the Court should:

annul the decision;

in the alternative, annul Article 2 of the Decision;

in the alternative, declare that the period of the alleged infringement wasnot from mid 1986 until April 1991;

in the alternative, declare that the geographical area of the allegedinfringement was not correctly identified;

in the alternative, reduce the amount of the fine imposed;

order the Commission to pay the costs.

33.

The Commission contends that the Court should:

dismiss the application;

order the applicant to pay the costs.

The application for annulment of the Decision

34.

The applicant relies on four pleas supporting its application for annulment. Thefirst plea alleges infringement of the rights of the defence in that the Commissionfailed to identify the behaviour of individual producers in the statement ofobjections and in the Decision. The second plea also alleges infringement of therights of the defence in that the Commission did not disclose all of the documents. The third plea is based on infringement of Article 190 of the Treaty. The fourthplea alleges that the Commission committed a manifest error of assessment in factand in law, thereby infringing Article 85 of the Treaty.

35.

The Court will begin by considering the first and third pleas. It will then considerthe fourth plea before dealing with the second plea.

A The plea of infringement of the rights of the defence in that the Commission didnot identify the behaviour of individual producers in the statement of objections andin the Decision

Arguments of the parties

36.

The applicant does not dispute that the Commission can demonstrate that each ofthe addressees of the Decision participated in the infringement if it demonstratesthe existence, operation and salient features of the cartel as a whole, and thenshows, on the one hand, the existence of credible and persuasive proof to link eachindividual producer to the common scheme and, on the other, the period duringwhich each producer participated (points 116 and 117 of the Decision).

37.

However, the Commission did not correctly identify the scheme in question,because it failed to define its exact scope and extent. It is erroneous to assumethat any producer who was a member of the PG Paperboard and sat in its variouscommittees was a participant in the cartel (point 119, first paragraph, of the

Decision). Likewise, it is incorrect to take the view that the activities of theEconomic Committee formed part of the illegal scheme (ibidem, secondparagraph). Furthermore, the Commission's conclusion that all the committees ofthe PG Paperboard had a predominantly unlawful purpose fails to take intoaccount the role of the PC or that of the Economic Committee. As regards theJMC, the applicant considers that only five of the 29 meetings held during therelevant period could have been concerned with price fixing.

38.

Second, the applicant asserts that the Commission must prove that the Decisionpermits each addressee to obtain a clear picture of the complaints made against it(Case T-12/89 Solvay v Commission [1992] ECR II-907, paragraph 276). However,that requirement was not satisfied in regard to the applicant. Contrary to theCommission's assertion in point 118 of the Decision, there is no direct evidence toshow that it participated in the infringement.

39.

The applicant rejects the Commission's assertion that '[t]here is no indication ...that individuals could select the aspects of the cartel in which they wished to joinand opt out of others (point 116, second paragraph, of the Decision). In orderto draw such a conclusion, the Commission should have established that anundertaking could not participate in one element of that scheme withoutparticipating in all elements. The Commission itself acknowledged that some of themore important elements of the alleged scheme were reserved to the largeproducers (points 36, 51 and 71 of the Decision).

40.

Moreover, contrary to the principles of the presumption of innocence, theCommission presumes that undertakings are guilty (point 116, last paragraph, ofthe Decision) where there is no documentary evidence in regard to them.

41.

As regards the applicant, the only valid objections are those set out in theindividual particulars annexed to the statement of objections, namely concerningits participation in concerted price increases in the United Kingdom in April 1989,April 1990 and January 1991.

42.

The applicant asserts that in the statement of objections it was not accused ofparticipating in the concerted price increase in the United Kingdom in 1987. TheCommission could not remedy that position by merely referring, in a letter of 4May 1993, to a technical appendix to the documents relating to the price initiatives.

43.

The Commission reiterates its approach, as set out in points 116 and 117 of theDecision.

44.

It does not have to compartmentalise the continuous conduct of the undertakingsinto a number of separate infringements and the participation of the individualproducers on a particular occasion or in a particular manifestation of the cartel is

not disproved solely because they are not implicated by direct evidence (Cast T-1/89 Rhône-Poulenc v Commission [1991] ECR II-867, paragraph 126).

45.

In any event, in reply to the applicant's arguments, the Commission asserts that theexact scope and extent of the common scheme were correctly defined (point 119of the Decision).

46.

The objections raised against the applicant were also adequately identified in thestatement of objections and in the Decision.

47.

Lastly, the applicant's participation in the cartel is proved by the fact that it was amember of the PG Paperboard and regularly participated in meetings of the PC,the JMC and the Economic Committee during the period in question.

48.

As regards the applicant's assertion that the only objections validly identified asagainst it are those specified in the individual particulars, namely its participationin the concerted price increases in the United Kingdom in 1989, 1990 and 1991, theCommission contends that the applicant deliberately failed to read the statementof objections in conjunction with the individual particulars, despite the expresswarning in the box of the individual particulars, page 75 of the statement ofobjections, and the Commission's letter of 4 May 1993. The applicant's allegationsconcerning the concerted price increase in 1987 are therefore unfounded.

Findings of the Court

49.

The Court cannot uphold the applicant's argument that its rights of defence wereinfringed because the Commission failed to identify the conduct of individualproducers in the Decision.

50.

That argument, in so far as it seeks to show that the objections made against theapplicant are not set out sufficiently clearly in the Decision, must be considered inthe context of the plea alleging infringement of the obligation to state reasons forthat decision. Furthermore, the Court finds that, in so far as the applicant disputesthat the Decision contains any evidence of its participation in the cartel, thatargument should be considered in the context of the substance of the Decision, andthat it is therefore irrelevant in the present context.

51.

Nor can the Court uphold the applicant's argument that the only objections validlymade against it are those set out in the individual particulars annexed to thestatement of objections.

52.

It suffices to find in that regard that it is expressly stated in a preliminary note tothe individual particulars addressed to the applicant that 'these individualparticulars must be read in conjunction with the main statement of objections.

53.

Furthermore, according to the individual particulars:

'The matters referred to under the heading Principal evidence linking [theundertaking] with the cartel are not intended as an exhaustive catalogue of all therespects in which your undertaking has infringed Article 85. Full details of thesuspected infringement in which your undertaking participated are set out in theMain Statement of Objections. The matters specified here are the principal itemsof direct and/or indirect evidence showing that your undertaking participated in thecartel.

54.

Lastly, in the statement of objections (pages 75 to 78) the Commission sets out itsreasons for alleging that all the undertakings to which that document is addressedparticipated in all the alleged infringements. That explanation is similar to that inpoints 116 to 119 of the Decision.

55.

Thus, it is stated (page 76) that in a case such as the present:

'... once the existence and operation of the cartel is demonstrated, it is sufficientto link each participant into the common venture by credible and persuasive proofand to establish the duration of its adherence to the scheme.

56.

In those circumstances, the objection that the applicant participated in the allegedcartel as a whole was set out in the statement of objections in terms that weresufficiently clear to enable the applicant properly to identify that objection. Onthat point, the statement of objections therefore fulfilled its function of givingundertakings all the information necessary to enable them properly to defendthemselves, before the Commission adopts a final decision (see, inter alia, JoinedCases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 42).

57.

Finally, the Court rejects the applicant's allegation that its rights of defence wereinfringed because no complaint was made in the statement of objections that ittook part in the collusion on the price increase in the United Kingdom in January1987. It suffices to find that after receiving the applicant's reply to the statementof objections the Commission stated in its letter of 4 May 1993 that the applicantwas alleged to have participated in the January 1987 price increase in the UnitedKingdom. It is unnecessary to consider whether that objection was set outsufficiently clearly in the body of the statement of objections itself.

58.

In the above letter it is stated:

'Secondly, even in relation to the alleged price initiatives themselves, it is simplynot correct to say (point 52 of your reply) that the Commission does not suggestthat KDE was involved in a concerted price initiative in the UK in January 1987,still less (at point 64) that the Commission has not alleged that the January 1987

increase resulted from consultation between the producers. These comments arerepeated at point 150 of your reply.

The Commission does indeed allege that the 1987 price initiative was a collusivearrangement and that your clients took part in it.

I simply need refer you in this connection to Schedule A of the Price Initiativedocuments, and in particular to the third paragraph on page 3 and the whole ofpage 4.

59.

Since the letter of 4 May 1993 expressly offered the applicant an opportunity tomake known its views, during the administrative procedure and within a period ofthree weeks, on the objection relating to its participation in the collusion on theJanuary 1987 price increase in the United Kingdom, the Commission did notprevent the applicant from putting forward its view on that objection at theappropriate time (see, to the same effect, the judgments in Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 11, and Case 107/82 AEG vCommission [1983] ECR 3151, paragraph 27).

60.

The plea must therefore be rejected.

B The plea of infringement of Article 190 of the Treaty

Arguments of the parties

61.

The applicant states that it set out in its reply to the statement of objections thereasons for its view that none of the documents capable of being taken into accountby the Commission supported the allegations made by the Commission. Inparticular, the Commission had been expressly invited to provide greater details ofits objections. However, the Commission did not reply to the applicant'sarguments.

62.

The Commission considers that it identified its objections in the statement ofobjections. Moreover, under Article 190 of the Treaty the Commission is merelyrequired to present the evidence and the legal and economic arguments justifyingits decision. It has done so in this case by identifying and showing the evidenceestablishing the applicant's participation in the single infringement, by giving detailsin the Decision of Stora's statements and the documentary evidence proving thenature of the PG Paperboard's committees, and also by identifying the meetings inwhich the applicant had participated and the price increases which it hadimplemented in accordance with the cartel's decisions.

63.

In any event, the applicant ignores the detailed examination of its principalarguments and, with the exception of the allegation concerning the 1987 price

increase, has been unable to specify any point where the Commission failedprecisely to identify the objections against it.

Findings of the Court

64.

The applicant's arguments must be understood as a submission that the Decisioncontains an inadequate statement of reasons in regard to its participation in theinfringement.

65.

In that regard, it is settled law (Case 24/62 Germany v Commission [1963] ECR 63,at page 69, Joined Cases 43/82 and 63/82 VBVB and VBVB v Commission [1984]ECR 19, paragraph 22, and Case T-44/90 La Cinq v Commission [1992] ECR II-1,paragraph 42) that the statement of the reasons on which a decision adverselyaffecting a person is based must be such as to enable the Community judicature toexercise its power of review as to the legality of the decision and to enable theperson concerned to ascertain the matters justifying the measure adopted, so thathe can defend his rights and verify whether the decision is well founded.

66.

It follows that a claim that there is no, or only an inadequate, statement of reasonsconstitutes a plea of infringement of an essential procedural requirement, which,as such, is different from a plea that the grounds of the Decision are inaccurate,the latter plea being a matter to be reviewed by the Court when it examines thesubstance of that decision.

67.

In the present case, the Decision refers directly to the applicant in the context ofits description of the concerted price increases (point 79 of, and Tables A, D, F andG annexed to, the Decision). Moreover, the points of the Decision describing thediscussions with an anti-competitive object in the JMC (in particular, points 44 to46, 58, 71, 73, 84, 85 and 87 of the Decision) necessarily relate to the applicant,which does not dispute having participated in two meetings of that body. Lastly,the Decision clearly sets out the reasoning followed by the Commission in reachingits conclusion that the applicant participated in an overall cartel (points 116 to 119of the Decision).

68.

In those circumstances, the statement of reasons in the Decision gave the applicantan adequate indication of the essential elements of facts and of law supporting thereasoning which led the Commission to hold it responsible for an infringement ofArticle 85(1) of the Treaty.

69.

It follows that the plea that the Decision contains an inadequate statement ofreasons must be rejected as unfounded.

C The plea of infringement of Article 85 of the Treaty in that the Commissioncommitted a manifest error of appraisal in fact and in law

Arguments of the parties

The committees of the PG Paperboard

The functions of the PC and the applicant's participation

70.

The applicant claims that between mid 1986 and April 1991 it was present at twoof the nine PC meetings to which the Commission refers, those of 4 December1987 and 17 November 1988. It did not participate in the PC meeting of 20 May1987, contrary to what is stated in Table 3 annexed to the Decision.

71.

The applicant disputes that the PC's function was to relay to producers the pricesallegedly agreed in the PWG. The assertion that the PC received reports from thePWG and that its members were informed of the price to be applied presupposesthat such communication took place when one PC immediately followed a PWGmeeting at which a price increase had been decided. However, not only was theapplicant's participation in PC meetings sporadic, but the timing of its attendancesshows that it was unaware of the alleged price initiatives.

72.

The applicant also argues that the description of the method by which PWGdecisions were communicated to the PC (point 38 of the Decision) is based on thecontradictory statements of Stora and of Mr Roos, a former manager in Feldmühle,of the Stora group (see paragraph 127 below).

73.

It disputes that the internal note discovered at Mayr-Melnhof's United Kingdomsales agent regarding a meeting of 10 November 1986 (point 41 of the Decision,appendix 61 to the statement of objections) contains evidence of the existence ofa collusive policy to fix prices in the PC. It is not proved that this note emanatesfrom a meeting of the PWG or of the PC, rather than some other separate privatemeeting. Nor does it support the Commission's conclusion that the members of thePC were informed of the price to be applied.

74.

Lastly, the Commission's assertion that the role of the PC was also to supervise theimplementation of the price initiatives is not set out in the Decision and is withoutfoundation. Stora never stated that the PC had such a purpose.

75.

More generally, the applicant disputes that the PC took part in discussions on acommon industry plan to restrict competition (Article 1 of the Decision).

76.

The Commission concedes in its rejoinder that the applicant did not participate inthe PC of 20 May 1987, the statement in Table 3 annexed to the Decision havingbeen included in error. However, the applicant took part in the meetings of thePC on 26 June 1986 and 17 November 1988. It has not been proved that the

applicant participated in those meetings in a spirit which was different from thatof the cartel (Case T-3/89 Atochem v Commission [1991] ECR II-1177, paragraphs53 and 54) or that it withdrew from the common venture.

77.

The Commission considers that the argument based on the timing of the applicant'sattendance, to the effect that the price initiatives could not have been the objectof discussions at the meetings of the PC, is fallacious for two reasons. In the firstplace, the applicant has not fully disclosed the number and dates of all themeetings which it attended. In the second place, the function of the PC wassufficiently described by Stora (appendix 39 to the statement of objections, pages4 and 5) and it is quite clear that the PC meetings had a predominately unlawfulpurpose. In any event, the timing of the applicant's attendance at the PC meetingscoincides with the known price initiatives.

78.

Lastly, the Commission does not accept the applicant's assertion that there is noproof that the note contained in appendix 61 to the statement of objectionsconcerns a PC meeting (that of 10 November 1986). The Commission states thatWeig began to attend the PWG only in 1988, whereas the note refers to arepresentative of that manufacturer. In any event, that note underlines therelationship between the PWG and the PC, as described by Stora. It musttherefore be concluded that the note does in fact concern a meeting of the PC.

The functions of the JMC and the applicant's participation

79.

The applicant states, first of all, that it was present at only two meetings of theJMC, on 4 April 1989 and 20 November 1990, out of the 29 identified by theCommission in respect of the period from mid 1986 until April 1991.

80.

Second, it contests the Commission's conclusions regarding the functions of theJMC. Having regard to the timing of the meetings in which it took part, theapplicant contests the description in point 44 of the Decision of the JMC's principalpurpose. In particular, it disputes that the purpose of the JMC meeting on 4 April1989 could have been either to determine whether a price increase could be putinto effect, or to work out details of the alleged price initiative of March-April 1989decided by the PWG, because it was at the end of 1988 (point 79 of the Decision)when the producers agreed upon a price increase which was to take effect inMarch 1989 and that price initiative was announced by the producers in January1989. It also disputes that the purpose of the JMC meeting in November 1990could have been to put the alleged January 1991 price initiative into effect and towork out details of it. According to the Commission, that price initiative wasagreed in June 1990 and announced in September-October 1990, and thereforebefore the JMC meeting in November. Furthermore, according to points 87 and88 of the Decision, the details of the increase had been worked out at the JMCmeeting of 6 September 1990.

81.

More generally, the applicant disputes that the JMC took part in discussions on acommon industry plan to restrict competition (Article 1 of the Decision).

82.

The applicant accepts that the Commission has proved that appendix 117 to thestatement of objections, handwritten notes taken by Rena's sales director, andAppendix 109, a confidential report by Mayr-Melnhof's marketing director to MrKatzner (the commercial director responsible for the Mayr-Melnhof group's salesin Germany), are documents which concern JMC meetings. However, thosemeetings dealt with GC cartonboard grades, which the applicant does not produce. Moreover, appendix 117 to the statement of objections contains variousinformation, only part of which was obtained at a JMC meeting (see Rena'scovering letter, appendix 116 to the statement of objections).

83.

There is no proof that the other documents on which the Commission reliesconcern the JMC. Thus, it has not been established that appendix 111 to thestatement of objections, a typewritten price list in Swedish obtained from Rena'showing the date and the amount of the increases to be applied for each gradein each national currency (point 80 of the Decision) relates to a JMC meeting, oreven to a meeting of one of the bodies of the PG Paperboard.

84.

The applicant observes that according to the Commission, the note dated 11January 1990 written by the sales manager of FS-Karton (appendix 113 to thestatement of objections) and referred to in point 84 of the Decision concerns ameeting of the JMC in the context of the implementation of the March-April 1990initiative. The applicant points out, however, that Mayr-Melnhof stated that it wasa note for internal use drawn up for a meeting and that there is no other evidencein that regard.

85.

Furthermore, the detailed series of handwritten notes obtained from Rena relatingto the JMC meeting of 6 September 1990 (appendix 118 to the statement ofobjections) and referred to in point 87 of the Decision were, according to Rena, merely 'preparation for a budget meeting. In so far as the note refers to GDgrades, its author incorrectly concluded that all the producers would announce aprice increase by 8 October. The applicant states that it notified its price increaseonly on 31 October and disputes that it was party to the agreement which wasallegedly intended to increase the prices of GD grades.

86.

The applicant also rejects the Commission's conclusion that, although all the notesrelating to the JMC meetings obtained by the Commission concern GC grades, theymay, in the absence of any other written record, be taken to be typical of meetingsheld in regard to GD grades, as well as of the subject-matter of JMC meetings ingeneral (point 113 of the Decision). The applicant submits that in the statementsto which the Commission refers in its defence Stora made no distinction betweenthe meetings attended by producers of GC cartonboard and those in whichproducers of GD cartonboard participated.

87.

According to the applicant, the Commission has identified 29 meetings of the JMCduring the relevant period, but only five price initiatives. The applicant concludesfrom this that the JMC could have pursued its allegedly unlawful functions at onlya small number of those meetings, namely those immediately following the allegedprice initiatives of the PWG.

88.

Lastly, the applicant considers that there is no evidence for the assertion that 'onthe basis of the preparatory work done in the JMC, the PWG took the decisionsin principle on the timing and the amount of the increase (point 72 of theDecision).

89.

The Commission observes that the applicant participated in the JMC meetings of3/4 April 1989 and of 19/20 November 1990. Moreover, as it acknowledges, theapplicant had discussions on specific points with other producers regardingmeetings which it had not attended. The evidence (appendices 109, 113, 117 and118 to the statement of objections) refutes the applicant's claims, since it shows thatthe purpose of the JMC was, first, to determine whether, and if so how, priceincreases could be put into effect and to report its conclusions to the PWG and,second, to prescribe the methods of implementing the price initiatives decided bythe PWG, country by country and for the major customers, in order to achieve asystem of equivalent prices in Europe (point 44 of the Decision). Lastly, accordingto Stora's second statement (appendix 39 to the statement of objections, p. 9), therole of the JMC was also to discuss the difficulty of implementing those increasesfor both GC and GD grades.

90.

In particular, as regards the April 1989 price increase, the applicant participatedin the meeting of the PC on 17 November 1988, at which the increase was decidedupon in principle. The increase applied by the applicant, namely UKL 25 in theUnited Kingdom, was notified to its customers on 16 February and implementedon 10 May 1989. Two documents show that the applicant's conduct was the resultof the cartel, namely an undated price list obtained from Finnboard (UK) Ltdheaded 'Price increase second quarter 1989, which gives the price increases foreach national market, including the United Kingdom as regards GD grades, and aFiskeby document dated 14 February 1989 (document D-G-1) confirming thatinformation. In that context, the Commission points to the applicant's participationin a JMC meeting on 3/4 April 1989 and to the fact that on 4 April 1989 theapplicant's United Kingdom agent took part in a meeting of the Paper AgentsAssociation ('PAA) for the purpose of discussing the implementation of theagreement concluded in the cartel.

91.

As regards the January 1991 increase, it is clear from the documents relating to theJMC meeting of 6 September 1990 (Rena notes) that it was to be announced forall grades, amounted to UKL 40 in the United Kingdom and would take effect on31 January 1991. The Commission does not know whether the applicant took partin that meeting but states that it was represented at the PAA meeting on 18

September 1990, at which that increase was discussed, as is clear from a noteobtained from Iggesund Board Sales (appendix 132 to the statement of objections). The JMC meeting of 19 and 20 November 1990 was, according to the Commission,concerned with monitoring progress in implementing the increase, which had beenannounced by the applicant on 31 October 1990. The applicant increased its pricesby UKL 40 with effect from 28 January 1991.

92.

The Commission rejects the applicant's assertion that the JMC meetings concernedGC cartonboard alone. The Rena note relating to the JMC meeting of 6September 1990 (appendix 118 to the statement of objections) concerns a priceincrease for all grades, a fact which supports Stora's statements on that point(appendix 39 to the statement of objections, pages 6 and 8).

93.

Lastly, the Rena note concerning the JMC meeting of 6 September 1989 (appendix117 to the statement of objections) discloses details of the price increases whichhad been announced in each national currency and assesses customer reactions andprogress already made towards implementation in each national market.

The functions of the Economic Committee and the applicant's participation

94.

The applicant, which states that it attended seven meetings during the period towhich the Decision relates, submits that the Economic Committee discussed mattersof legitimate interest to the industry.

95.

It disputes that the central theme of its discussions was an analysis and assessmentof the cartonboard market in the various countries (point 50 of the Decision).

96.

The Commission has not proved its allegation that 'the discussions on marketconditions were not unfocused; talks on the state of each national market must beseen in the context of the planned price initiatives, including the perceived need fortemporary plant shutdowns to support price increases (point 50 of the Decision). The note drafted by the FS-Karton representative (appendix 70 to the statementof objections), which, according to the Commission, concerns the 'highlights of theEconomic Committee meeting on 3 October 1989, in fact shows that the EconomicCommittee carried out a general review of market conditions, country-by-country,in particular in regard to the state of order backlogs. The only reference to anallegedly concerted price increase concerns the French market and the note merelyindicates the policy to be followed by the undertaking from which the noteoriginates.

97.

The applicant contests the Commission's assertion in point 119 of the Decision thatit is not credible that those who attended the Economic Committee could havebeen unaware of the illicit purpose for which the information they knowinglyprovided to the JMC was to be used. According to the applicant, the Commissionconfuses fact with opinion and that assertion is not supported by any evidence.

98.

The Commission states, first, that the behaviour of the Economic Committee hasto be understood in the context of the infringement as a whole and of the functionsof the JMC, at whose meetings the applicant was represented and to which theEconomic Committee reported. The topics dealt with in the Economic Committeehave been described by Stora. The fact that the Economic Committee was notconcerned with a simple exchange of statistics on an aggregate basis isdemonstrated by a note made by a representative of FS-Karton concerning theEconomic Committee meeting of 3 October 1989 (see paragraph 115 above), whichrecounts discussions on the order backlogs of the GC and GD producers, includingindividual positions.

99.

Lastly, the Commission rejects the applicant's assertion that the exchange ofinformation in the Economic Committee is capable of innocent explanation. Notonly is that assertion inconsistent with the discussions recorded in the noteconcerning the meeting on 3 October 1989 but also with the discussions at the JMCmeeting on the following 16 October, the latter discussions showing that the stateof order backlogs had been a decisive factor for the entry into force of a priceincrease.

The price initiatives

100.

The applicant submits that its decision whether or not to align its prices on thoseof the dominant undertakings on the market was taken completely independently.

101.

Its normal practice was to review its prices in the United Kingdom every sixmonths, usually in April and October.

102.

As regards the April 1989 price increase, the applicant states that on 16 February1989 it notified a price increase in the United Kingdom of UKL 25, which enteredinto force on 10 May 1989, in order to align its prices on those of the dominantundertakings on the market, after having considered the following factors:

the state of the United Kingdom economy;

the strength of demand at the end of 1988;

indications that raw material prices were hardening;

information disclosed on 1 February 1989 by a specialised publication'EUWID Pulp & Paper (appendix G to its reply to the statement ofobjections) according to which German price increases had been announced,with GD grades increasing by DM 8 to 10 on 1 May 1989;

notification by Mayr-Melnhof of a price increase in the United Kingdom on6 February 1989 to take effect from April 1989 and, two days later,notification by SCA Colthrop of a similar increase which was also to takeeffect in April.

103.

The applicant observes that, according to the documents upon which theCommission relies, the agreement to increase prices in the United Kingdom for GDgrades provided for the increase to enter into force on 1 May. However, theapplicant increased its prices only on 10 May.

104.

Furthermore, its presence at the JMC meeting on 4 April 1989 cannot alter thatcircumstance, since the object of that meeting could not have been to determinewhether a price increase could be applied (the increase was decided at the end of1988) or to work out the details of the alleged price initiative decided by the PWG. Nor could the purpose of that meeting have been to supervise the actualimplementation of the increase after its entry into force, because it had not yetbeen implemented on the market.

105.

Lastly, the Commission cannot be allowed to hold against the applicant in itsdefence the fact that its agent was present at meetings of the PAA, because itsagent is wholly independent.

106.

As to the April 1990 price increase, several issues of the specialist journal EUWIDPulp & Paper disclosed that a price increase was imminent. In particular itannounced that an 8% price increase was planned for March, but that it would behigher in the United Kingdom owing to the weakness of the pound sterling (issueof 20 December 1989). In its 17 January edition it indicated that Mayr-Melnhofhad sent a circular to customers in order to notify a price increase. The followingissue confirmed that price increases of 8% were planned for March. The applicantsubsequently obtained confirmation from the market of the price increase in theUnited Kingdom notified by Mayr-Melnhof and to take effect in March.

107.

Having regard to the fall in exchange rates towards the end of 1989 and the fall inmarket prices, the applicant considered that it had to follow the price leaders.

108.

As regards the January 1991 price increase, the applicant asserts that it was awarethat its operating costs for 1991 would increase substantially owing, first of all, toa rise in gas prices and an increase in employees.

109.

In that context, it alleges that it had learned from trade publications, especiallyEUWID Pulp & Paper, that a price increase was envisaged by producers from thebeginning of 1991. That had been indicated as early as the beginning of Augustand confirmed in the 12 September 1990 issue. According to the 25 September1990 issue of EUWID Pulp & Paper, Mayr-Melnhof was to increase its prices from7 January by UKL 40 per ton. The 24 October 1990 issue confirmed thatFeldmühle had also announced similar increases. Market intelligence reports

obtained by the applicant from its customers and other sources confirmed that SCAColthrop had announced a price increase on 29 October. In those circumstances,the applicant decided on 31 October 1990 to increase its prices by a similar amounton the United Kingdom market in order to align them on those of its competitors.

110.

Second, the applicant asserts that the Commission has no direct evidence ofcollusion on its part.

111.

Since the Commission has not proved that the applicant regularly participated inmeetings of the PG Paperboard or in meetings at which anticompetitive practiceswere discussed, it cannot rely on the case-law of the Court of First Instance,according to which, when such circumstances are proved, it is for the undertakingto show that it did not subscribe to the initiative agreed at those meetings.

112.

The Commission states, first of all, that it rejects the applicant's attempt tocompartmentalise the infringement. It considers that it is fallacious for theapplicant to argue that it is accused of anticompetitive practices in the UnitedKingdom alone, when the scheme was to fix concerted prices throughout theCommunity and to implement them in each market.

113.

It disputes that the applicant aligned its prices wholly independently on those of itscompetitors. It points to the fact that the applicant's agent took part in meetingsin which the implementation of the cartel at national level was discussed, and thatthe applicant was aware of this, because the agents acted on the instructions oftheir principals. The Commission also points out that the applicant regularlyparticipated in meetings of the committees of the PG Paperboard at which theprice initiatives were discussed; that it admits having had telephone contacts withother producers regarding meetings at which it was not present; that it has notshown that it did not subscribe to the consensus reached between the participantsin the cartel; and that it continued to participate in meetings even after theCommission's investigations.

114.

According to the Commission, once it has shown that an undertaking has regularlyparticipated in meetings which dealt, for example, with price initiatives, it is for thatundertaking to prove that it did not subscribe to the initiative agreed at thosemeetings and, in order to do so, it must prove that its competitors were aware thatit dissociated itself from the consensus reached at those meetings (Case T-2/89Petrofina v Commission [1991] ECR II-1087, Atochem v Commission, cited above,Case T-9/89 Hüls v Commission [1992] ECR II-499, and Case T-13/89 ICI vCommission [1992] ECR II-1021).

The 'price before tonnage policy

115.

The applicant disputes that it participated in an understanding on 'maintaining themarket shares of the major producers at constant levels, subject to modificationfrom time to time (Article 1, eighth indent) and that it took 'concerted measuresto control the supply of the product in the Community in order to ensure theimplementation of the said concerted price rises (Article 1, ninth indent).

116.

The Commission's evidence is insufficient to conclude that the smaller cartonboardproducers had subscribed to the alleged 'price before tonnage policy. It is puresupposition on the Commission's part to state that, in view of the generalunderstanding between the major producers, the smaller producers were aware ofthe need to adapt their conduct.

117.

On the contrary, the applicant was operating at full capacity throughout themajority of the period in question. The utilisation rates of the machines show areduction in downtime between 1987 and 1990.

118.

As to the note from Rena regarding an extraordinary meeting of the NordicPaperboard Institute ('the NPI) (appendix 102 to the statement of objections), adocument on which the Commission relies, the applicant states that it is not amember of the NPI, that the meeting in question was not a meeting of the PGPaperboard and that consequently that note does not support the Commission'sconclusion that all the smaller producers had subscribed to the price beforetonnage policy.

119.

The applicant also denies that it was a party to the alleged understanding onmaintaining market shares and states that its market share declined during theperiod covered by the Decision.

120.

Lastly, it contests the Commission's allegation (see point 53 of the Decision) thatthe documents found at FS-Karton confirm that 'at the end of 1987 agreement hadbeen reached in the two Presidents' groups on the linked issues of volume controland price discipline. It submits that the note on which the Commission relies(appendix 73 to the statement of objections) does not refer to the two 'Presidents'groups ('the President Conference and the PWG) but to the 'Presidentsgrouping. The Commission is thus most likely referring to the PWG and not thePresident Conference and nothing indicates that this reference is to more than 'onegroup. The applicant was not a member of the PWG.

121.

The Commission considers that the applicant is misrepresenting its arguments. Theallegation against the applicant is that it was a participant in a common design, twomanifestations of which were the control of supply of the product in theCommunity in order to ensure implementation of the concerted price increases, andthe exchange of information, inter alia, on downtime, order backlogs and machineutilisation rates. The applicant took part in the meetings of the JMC, during which,as part of the price before tonnage policy to which all producers subscribed, thesmaller producers were aware of the understanding between the major producers

to keep supply at constant levels and also of the need to adapt their own conductas a result.

122.

The fact that the applicant was not a member of the NPI does not deprive theRena note concerning the extraordinary meeting of the NPI at Arlanda airport (seeparagraph 118 above) of its probative value. That note not only provides furtherevidence of the scheme to control production but also supports Stora's statementthat the producers who were not members of the PWG were made aware of thegeneral understanding between the major producers to maintain constant levels ofsupply. Such an interpretation does not mean that the applicant was directlyimplicated by that note.

The methods of circulating information

123.

The applicant considers that Stora's statements are unreliable.

124.

First, since Stora has admitted that its subsidiaries, Feldmühle, Kopparfors andCBC, engaged in certain policies and practices that were likely to constituteinfringements of the competition rules (point 34 of the Decision), it is in Stora'sinterest to link as many cartonboard producers as possible with the alleged cartel,in particular the smaller producers, in order to play down its own role.

125.

Second, Stora's statements are contradictory as regards the methods ofcommunicating decisions of the PWG to the PC.

126.

In its second statement Stora stated that the role of the PWG was to 'assess andexplain to the President Conference the precise state of supply and demand on themarket and the measures to be taken to bring order to the market (point 38 ofthe Decision), whereas in a subsequent statement (letter of 17 September 1991,appendix 38 to the statement of objections), it gave details of how the outcome ofPWG meetings was communicated on an individual basis through individualcontacts between a number of undertakings. In regard to that latter point, theapplicant considers that Stora is referring to the channels for communicating theinformation in Germany, France and Scandinavia, but not to such a system in theNetherlands, or any system involving the applicant.

127.

The two statements also contradict the statement of Mr Roos, a former memberof Feldmühle's management. The latter statement is not very clear because itstates that the PWG discussions were brought to the attention of the PC and theJMC, in particular through persons who had participated in the workings of bothgroups.

128.

The Commission considers that the applicant's argument relating to the allegedself-serving nature of Stora's declarations is spurious, because other producers hadalso identified the applicant as a participant in the JMC.

129.

It disputes that the statements concerning the channels of communication betweenthe PWG and the JMC are contradictory. Mr Roos does not contradict himself instating that there were no formal channels of communication and that informationwas circulated informally between individuals, including those who attended themeetings of both groups. The Commission points out that Mr Roos was thepresident of the JMC.

130.

Moreover, the PWG met before each scheduled PC. Since the same personpresided over both meetings, there is no doubt that it was he who communicatedthe outcome of the PWG to the producers who had not attended it. If there wasno PC immediately after the PWG meeting, the participants would inform thesmaller producers of their national grouping of what had been decided. In thatcase too, those channels of communication were not formalised.

The duration of the applicant's participation

131.

The applicant considers that the Commission is unable to prove that it participatedin the cartel otherwise than in the periods of its participation in the price initiativesof April 1989, April 1990 and January 1991. It denies any participation in the 1987price increase. Moreover, there is no proof of its participation in that increase. It must therefore be accepted that its participation in the alleged infringementbegan only in 1989.

132.

The Commission rejects the applicant's approach. The January 1987 price increasewas already planned in late 1986. The applicant participated in meetings of thecommittees of the PG Paperboard throughout the duration of the infringement and participated in a meeting of the PC on 29 May 1986.

Findings of the Court

133.

The Court will examine first the question whether the Commission has proved thatthe applicant participated in an infringement of Article 85(1) of the Treaty asregards the period from mid-1986 until April 1989, the date from which theapplicant admits that it participated in meetings of the JMC. Second, the Courtwill examine the question whether the Commission has proved the applicant'sparticipation in an infringement of Article 85(1) of the Treaty as regards theremaining period, namely April 1989 to April 1991.

1. Period from mid-1986 to April 1989

134.

In order to prove the applicant's participation in an infringement of the Communitycompetition rules during the period in question, the Commission relies on thatundertaking's participation in several meetings of the PC (table 3 annexed to theDecision) and of the Economic Committee (table 6 annexed to the Decision) andon its actual pricing behaviour.

135.

It is necessary to consider each item of evidence in the abovementioned order.

(a) Applicant's participation in certain meetings of the PC

136.

The Commission accepts that the indication in table 3 annexed to the Decision tothe effect that the applicant participated in the PC meeting of 20 May 1987 is anerror.

137.

Furthermore, in reply to a written question from the Court, the Commission statedthat the reference in its pleadings to the applicant's alleged participation in a PCmeeting of 26 June 1986 must be understood as a reference to its participation inthe PC meeting of 29 May 1986.

138.

Consequently, according to the Commission, the applicant participated in threespecific meetings of the PC during the period under consideration, namely thoseof 29 May 1986, 4 December 1987 and 17 November 1988. The Commission doesnot rely on any evidence as to the object of those three meetings. When it refersto that participation as evidence of the undertaking's participation in aninfringement of Article 85(1) of the Treaty, the Commission therefore necessarilybases its assertion on the general description in the Decision of the object of themeetings of that body and on the evidence put forward in the Decision in order tosupport that description.

139.

In that regard, the Decision states: 'As Stora has explained one of the PWG'sfunctions included explaining to the President Conference the measures which werenecessary to bring order to the market ... In this way, the managing directorsattending the President Conferences were informed of the decisions taken by thePWG and of the instructions to be given to their sales departments to implementthe agreed price initiatives (point 41, first paragraph, of the Decision). It alsoobserves: 'The PWG invariably met before each scheduled President Conference,and since the same person was in the chair at both meetings, it was no doubt hewho communicated the result of the PWG deliberations to others among the so-called Presidents who were not members of the inner circle (point 38, secondparagraph, of the Decision).

140.

Stora has indicated that the participants in PC meetings were informed of decisionsadopted by the PWG (appendix 39 to the statement of objections, point 8). However, the correctness of that assertion is contested by several of theundertakings which took part in PC meetings, including the applicant.

Consequently, Stora's statements relating to the PC's role cannot, unless supportedby other evidence, be considered sufficient evidence of the object of the meetingsof that body.

141.

Admittedly, there is a document in the file, a statement of 22 March 1993 by aformer member of the management of Feldmühle (Mr Roos), which at first sightcorroborates Stora's assertions. Mr Roos indicates, inter alia, as follows: 'Thecontent of the discussions in the PWG was communicated to the undertakings notrepresented in that group at the immediately following Presidents' Conference, or,if there was no immediate Presidents Conference, at the JMC. However, eventhough there is no express reliance on that document in the Decision in support ofthe Commission's assertions as to the object of the PC meetings, it cannot, on anyview, be considered to constitute evidence supplementing Stora's statements. Asthose statements are a synthesis of the replies submitted by each of the threeundertakings, including Feldmühle, owned by Stora during the period of theinfringement, the former member of the management of Feldmühle necessarilyconstitutes one of the sources for the statements by Stora itself.

142.

The Commission submits in the Decision that appendix 61 to the statement ofobjections, a note found at the United Kingdom Sales Agent of Mayr-Melnhofwhich refers to a meeting held in Vienna on 12 and 13 December 1986,'[corroborates] Stora's admission that the President Conference did in fact discusscollusive pricing (points 41, third paragraph, and 75, second paragraph, of theDecision). That document contains the following:

'UK pricing

Recent Fides meeting included the representative of Weig stating that they thought9% too high for the United Kingdom and were settling at 7%! Greatdisappointment as it signals a negotiating level for everybody else. UK pricingpolicy will be left to RHU with the support of [Mayr-Melnhof] even if it means atemporary reduction in tonnes while we attempt (and be seen to attempt) to pursue9%. [Mayr-Melnhof/FS] maintain a growth policy for UK but reduced returns areserious and we have to fight to regain control on pricing. [Mayr-Melnhof] acceptthat it doesn't help that they are known to have increased their tonnes in Germanyby 6 000!

143.

According to Mayr-Melnhof (reply to a request for information, appendix 62 to thestatement of objections), the Fides meeting referred to at the beginning of thepassage quoted is probably the PC meeting of 10 November 1986. According totable 3 annexed to the Decision, the applicant was not present at that meeting.

144.

The document in question shows that Weig reacted to an initial level of priceincrease by indicating its future pricing policy in the United Kingdom.

145.

It cannot, however, be considered to prove that Weig reacted in relation to aparticular level of price increase agreed between the undertakings within the PGPaperboard before 10 November 1986.

146.

The Commission does not rely on any other evidence to that effect. Moreover,Weig's reference to a price increase of '9% may be explained by the priceincrease in the United Kingdom announced by Thames Board Ltd on 5 November1986 (annex A-12-1). That announcement was made public shortly afterwards, asis clear from a press cutting (annex A-12-3). Lastly, the Commission has notproduced any other document capable of constituting direct evidence thatdiscussions on price increases took place at meetings of the PC. In thosecircumstances, it cannot be ruled out that Weig's remarks, as related in appendix61 to the statement of objections, were made on the fringe of the meeting of thePC on 10 November 1986, as Weig repeatedly submitted at the hearing.

147.

The Commission also states in the Decision that '[d]ocumentation found by theCommission at FS-Karton (part of the M-M group) confirms that at the end of1987 agreement had been reached in the two Presidents' groups on the linkedissues of volume control and price discipline (point 53, first paragraph of theDecision). It refers in that regard to appendix 73 to the statement of objections,a confidential note dated 28 December 1988 sent by the marketing director of theMayr-Melnhof group in Germany (Mr Katzner) to the General manager of Mayr-Melnhof in Austria (Mr Gröller) concerning the market situation.

148.

The author of the document refers by way of introduction to the closer cooperationwithin the 'Presidents' grouping ('Präsidentenkreis). That expression wasinterpreted by Mayr-Melnhof as a general reference to both the PWG and the PC,that is to say, without reference to a specific event or meeting (appendix 75 to thestatement of objections, point 2.a).

149.

Although it is not disputed in the present case that appendix 73 to the statementof objections is corroborative evidence of Stora's statements concerning theexistence of collusion on market shares between the undertakings allowed toparticipate in the 'Presidents' grouping and of collusion on downtime betweenthose same undertakings, the Commission has not, however, adduced any otherevidence to confirm that the object of the PC was, inter alia, to discuss collusion onmarket shares and control of production volume. Consequently, the expression'Presidents' grouping ('Präsidentenkreis) used in appendix 73 to the statementof objections cannot, despite the explanation supplied by Mayr-Melnhof, beconstrued as referring to bodies other than the PWG.

150.

Having regard to the foregoing, the Commission has not proved that the meetingsof the PC had an anti-competitive function alongside its lawful activities. It followsthat it was not entitled to infer from the evidence relied upon that the undertakings

which participated in meetings of the PC had taken part in an infringement ofArticle 85(1) of the Treaty.

151.

As a consequence the Court must find that the applicant's participation in aninfringement of the competition rules during the period from mid-1986 until April1989 has not been proved by reliance on its participation in the meetings of the PC.

(b) Applicant's participation in three meetings of the Economic Committee

152.

It is not disputed that during the period from mid-1986 until April 1989 theapplicant particpated in three meetings of the Economic Committee, namely thoseof 15 October 1986, 4 February 1987 and 3 February 1989. Since the Commissionhas not relied on any evidence relating to those meetings, it is necessary to considermore generally whether the meetings of the Economic Committee had ananticompetitive object.

153.

The Decision states that 'the central theme of the discussions of the EconomicCommittee was the analysis and assessment of the cartonboard market in thevarious countries (point 50, first paragraph, of the Decision). The EconomicCommittee 'discussed inter alia price movements in national markets and orderbacklogs and reported its findings to the JMC (or its predecessor the MarketingCommittee before the end of 1987) (point 49, first paragraph, of the Decision).

154.

According to the Commission, '[t]he discussions on market conditions were notunfocused; talks on the state of each national market must be seen in the contextof the planned price initiatives, including the perceived need for temporary plantshutdowns to support price increases (point 50, first paragraph, of the Decision). Furthermore, the Commission considers that: '[t]he Economic Committee mayhave been less directly concerned with price fixing as such but it is not credible thatthose who attended were unaware of the illicit purpose for which the informationthey knowingly provided to the JMC was to be used (point 119, second paragraph,of the Decision).

155.

To support its contention that the discussions held in the Economic Committee hadan anti-competitive object, the Commission refers to a single document, aconfidential note by a representative of FS-Karton (of the Mayr-Melnhof Group)concerning the essential points of the Economic Committee's meeting of 3 October1989 (appendix 70 to the statement of objections).

156.

In the Decision the Commission summarises the content of that document asfollows:

'... in addition to a detailed survey of demand, production and orders in hand ineach national market, the meeting was concerned with:

perceived strong customer resistance to the last GC price increase, effectiveon 1 October,

the respective state of the order backlog of the GC and GD producers,including individual positions,

reports on downtime taken and planned,

the particular problems of implementing the price increase in the UnitedKingdom and its effect on the necessary price differential between GC andGD grades,

the comparison against budget of incoming orders for each nationalgrouping (point 50, second paragraph, of the Decision).

157.

That description of the content of the document is, in essence, correct. However,the Commission does not rely on any evidence to support its assertion thatappendix 70 to the statement of objections may be regarded 'as indicative of thereal nature of the deliberations of that body (point 113, last paragraph, of theDecision).

158.

Furthermore, the scope of Stora's statements, to the extent that they relate to theEconomic Committee, is very limited. Stora states: 'Prior to 1987 the EconomicCommittee combined the functions of the JMC and the Statistical Committee. Meetings were attended by marketing/sales managers. Among other things,discussions took place on price movements in the national markets, small quantitysurcharges, sheet counting, invoicing terms and raw materials. Examination ofstatistical reports also took place (appendix 39 to the statement of objections,point 12). As is stated, this assertion relates only to the period prior to 1987. Moreover, although Stora indicates that discussions took place on price movementsin the national markets at meetings of the Economic Committee, the content ofthose discussions is not specified. It cannot therefore be concluded that thosediscussions had an anticompetitive object.

159.

As regards the period commencing at the beginning of 1988, Stora states: 'TheJMC was set up at the end of 1987 and held its first meeting in early 1988 takingover part of the functions of the Economic Committee from that time. The otherfunctions of the Economic Committee were taken over by the StatisticalCommittee (appendix 39 to the statement of objections, point 13).

160.

Stora's statements do not therefore contain any evidence supporting theCommission's assertion concerning the allegedly anti-competitive object of thatbody's discussions in the period after the beginning of 1987.

161.

Nor, lastly, does the Commission refer to any evidence to support the view that theparticipants in the meetings of the Economic Committee were informed of theprecise nature of the meetings of the JMC, the body to which the EconomicCommittee reported. It follows that it cannot be ruled out that some participantsin the Economic Committee's meeting who did not also participate in the JMCmeetings were not aware of the precise use to which the reports prepared by theEconomic Committee were put by the JMC.

162.

Consequently, appendix 70 to the statement of objections cannot be regarded asdemonstrating the true nature of the discussions which took place at the meetingsof the Economic Committee.

163.

Moreover, the Commission itself appears to take the view that participation inmeetings of the Economic Committee did not constitute adequate proof of anyinfringement, because Enso Española, an undertaking which had taken part inmeetings of the Economic Committee in 1987 (table 6 annexed to the Decision),was not considered to have committed an infringement of the competition rulesbefore March 1988 (Article 1 of the Decision).

164.

In the light of the foregoing, the fact that the applicant took part in three meetingsof the Economic Committee during the period in question does not prove itsparticipation in an infringement of Article 85(1) of the Treaty.

165.

As regards the period under consideration, it is apparent from table A annexed tothe Decision that according to the Commission the applicant announced anincrease of 8% in its prices in the United Kingdom on 14 November 1987 andimplemented it on 12 January 1988.

166.

On the other hand, according to tables B and C annexed to the Decision, theCommission does not have any information as to price increases for the applicant'scartonboard on the occasion of the March/April 1988 and October 1988 priceincrease initiatives.

167.

In those circumstances, the Court considers that the applicant's actual pricingbehaviour as established by the Commission, that is to say, one price increaseinitiative in the United Kingdom which appears to be in conformity with thoseimplemented by the other producers, does not adequately support theCommission's assertion that the applicant participated in an infringement of Article85(1) of the Treaty during the period in question.

(d) Conclusion regarding the period in question

168.

Having regard to all the foregoing considerations, the evidence on which theCommission relies, even taken as a whole, does not prove the applicant'sparticipation in an infringement of Article 85(1) of the Treaty during the periodfrom mid-1986 until April 1989.

2. Period from April 1989 to April 1991

169.

According to Article 1 of the Decision, the undertakings to which that provisionrefers infringed Article 85(1) of the Treaty by participating, in the case of theapplicant from mid-1986 until at least April 1991, in an agreement and concertedpractice originating in mid-1986 whereby the suppliers of cartonboard in theCommunity inter alia 'agreed regular price increases for each grade of the productin each national currency and 'planned and implemented simultaneous anduniform price increases throughout the Community, 'reached an understandingon maintaining the market shares of the major producers at constant levels, subjectto modification from time to time, and 'increasingly from early 1990, tookconcerted measures to control the supply of the product in the Community in orderto ensure the implementation of the said concerted price rises.

170.

It follows that, according to the Decision, each of the undertakings mentioned inArticle 1 infringed Article 85(1) of the Treaty by participating in a singleinfringement consisting of collusion on three matters which were different but whichpursued a common objective. Those three types of collusion must be regarded asthe constituent elements of the overall cartel.

171.

In those circumstances, the Court must consider separately whether the applicantparticipated in each type of collusion in question during the period from April 1989to April 1991.

(a) The applicant's participation in collusion on prices

The applicant's participation in two meetings of the JMC

172.

It is not disputed that the applicant participated in two JMC meetings, namelythose of 4 April 1989 and 20 November 1990.

173.

According to the Commission, the main purpose of the JMC was, from the outset:

' to determine whether, and if so how, price increases could be put into effectand to report its conclusions to the PWG,

to work out the details of the price initiatives decided by the PWG on acountry-by-country basis and for the major customers with the aim of

achieving an equivalent (i.e. uniform) price system in Europe ... (point 44,last paragraph, of the Decision).

174.

More specifically, the Commission maintains in the first and second paragraphs ofpoint 45 of the Decision that:

'This committee discussed market-by-market how the price increases agreed by thePWG were to be implemented by each producer. The practicalities of bringingproposed price increases into effect were addressed in round table discussions,with each participant having the chance to comment on the suggested increase.

Difficulties in the implementation of price increases decided by the PWG, or theoccasional refusal to cooperate, were reported back to the PWG, which then (asStora put it) sought to achieve the level of cooperation considered necessary. Separate reports were made by the JMC for GC and GD grades. If the PWGmodified a pricing decision on the basis of the reports it had received back fromthe JMC, the steps necessary to implement it would be discussed at the nextmeeting of the JMC.

175.

The Court finds that the Commission was entitled to refer to Stora's statements(appendices 35 and 39 to the statement of objections) as support for those findingsas to the object of the meetings of the JMC.

176.

Moreover, even if the Commission does not possess any official minutes of ameeting of the JMC, it obtained from Mayr-Melnhof and Rena certain internalnotes, dated 6 September 1989, 16 October 1989 and 6 September 1990respectively (appendices 117, 109 and 118 to the statement of objections). TheCourt considers that those notes, the tenor of which is given in points 80, 82 and87 of the Decision, do in fact set forth the discussions held during JMC meetings.

177.

The applicant does not dispute that appendices 117 and 109 concern the JMCmeetings of 6 September 1989 and 16 October 1989 respectively. Furthermore, theCourt rejects, in this context, the applicant's argument that it has not been provedthat appendix 118 to the statement of objections, a note dated 6 September 1990obtained from Rena, concerns a JMC meeting. That document is drawn up onheaded notepaper of the 'Schweizerischer Bankverein ('Société de BanqueSuisse) and is dated 6 September 1990, namely that of a JMC meeting held inZurich. It clearly sets out discussions with an anticompetitive object between theproducers in it. It is therefore proven that it concerns the JMC meeting held onthe date in question.

178.

Consequently, appendices 117, 109 and 118 constitute evidence which clearlycorroborates Stora's description of the functions of the JMC.

179.

In that regard, reference should be made by way of example to appendix 118 to thestatement of objections, in which it is stated, inter alia:

'Price increase will be announced next week in September.

F FF 40

NL 14

D DM 12

I LIT 80

B BF 2.50

CH SF 9

GB £ 40

IRL £ 45

All grades should be increased equally GD, UD, GT, GC etc.

Only 1 price increase a year.

For deliveries from 7 Jan.

Not later than 31st January.

14 of September letter with price increase (Mayr Melnhof).

19 Sept. Feldmühle sending its letter.

Cascades before end of Sept.

All must have sent out their letters before 8 October.

180.

As the Commission explains in points 88 to 90 of the Decision, it was also able toobtain internal documents supporting the conclusion that the undertakings, and inparticular those named in appendix 118 to the statement of objections, actuallyannounced and implemented the agreed price increases.

181.

As regards appendix 117 to the statement of objections, a document obtained fromRena, the Commission submits that it contains a set of notes taken at a meetingof the JMC held on 6 September 1989 and that it proves collusion on the October1989 price increase initiative. It states in particular that this document 'showsdetails of the price increases which had been announced in each currency andassesses customer reaction and the progress already made towards implementationin each national market (point 80, fifth paragraph, of the Decision). Theapplicant, which did not participate in the JMC meeting in question (table 4annexed to the Decision), does not dispute that appendix 117 refers to thatmeeting. It maintains, however, that only some of the information contained in theappendix was obtained at the JMC meeting, as Rena stated when it sent to theCommission (Rena letter, appendix 116 to the statement of objections) thedocuments subsequently referred to as appendices 117 and 118 to the statementof objections.

182.

However, the Court finds that appendix 117 contains a range of information on theprices and the price increases of the cartonboard producers. In view of theidentical nature of the subject-matter of the information and the fact that the actualexchange of such information at JMC meetings is confirmed in particular by Stora's

statements and by appendix 118 to the statement of objections, the Court considersthat the Commission correctly concluded that all the information contained inappendix 117 to the statement of objections had been obtained at the JMC meetingof 6 September 1989.

183.

As regards the Commission's contention that the undertakings mentioned in Article1 of the Decision monitored the implementation of the price increases (point 82of the Decision), the Commission refers to appendix 109 to the statement ofobjections, which concerns the JMC meeting held on 16 October 1989. Theapplicant does not dispute the description given in the Decision of the content ofthat document.

184.

Even though the documents on which the Commission relies concern only a smallnumber of the JMC's meetings held during the period covered by the Decision, allthe available documentary evidence corroborates Stora's statement indicating thatthe main object of the JMC was to determine and plan the implementation ofconcerted price increases and to monitor their actual implementation. The almosttotal absence of minutes, whether official or internal, of the meetings of the JMCmust be regarded as sufficient proof of the Commission's assertion that theundertakings which participated in the meetings attempted to hide the true natureof the discussions in that body (see, in particular, point 45 of the Decision). Inthose circumstances, the burden of proof has been reversed and it was for theaddressees of the Decision who participated in the meetings of that body to provethat it had a lawful object. Since such proof was not adduced by thoseundertakings, the Commission was entitled to consider that the discussions by theundertakings in the meetings of that body had a primarily anti-competitive object.

185.

As regards the applicant's assertion that the documents used by the Commissionin order to prove the existence of discussions with an anticompetitive object in theJMC do not relate to GD cartonboard, the Court points out, first, that appendix117 to the statement of objections, which concerns the JMC meeting of 6September 1989, states (pp. 3 and 4): 'France wants price increase for GD from1/1-90 and '[the] difference in price GC-GD is close to 40%.

186.

Second, appendix 118 to the statement of objections, which has been proved torefer to the JMC meeting of 6 September 1990, contains detailed informationrelating to GD cartonboard.

187.

Third, that evidence corroborates Stora's assertion that the object of the JMC'included comparative pricing for certain major customers and the working out ofdetails for the implementation on a country-by-country basis of the pricing decisionsof the PWG for both GC and GD grades (appendix 39 to the statement ofobjections, point 13). That disclosure must be understood in the light of theexplanation that 'as far as the Stora producers are aware, the Joint MarketingCommittee initially met 5 or 6 times per year to consider both GC and GD grades. Subsequently, separate meetings were held for GC and GD grades, consequently

roughly doubling the number of meetings (appendix 35 to the statement ofobjections, p. 16).

188.

The Commission was therefore entitled to deduce from the documents in the filethat the discussions on the concerted price increases held in the JMC concernedboth GC and GD grade cartonboard.

189.

As regards the applicant's own situation, its participation in two JMC meetingsmust, in the light of the foregoing, be regarded at the very least as sound evidenceof its participation in collusion on prices.

190.

In that context, given the object of the JMC meetings described above, the Courtpoints out that in a letter of 28 August 1991 sent to the Commission in reply to aletter under Article 11 of Regulation No 17 the applicant acknowledged that it didnot attend the majority of the JMC meetings but that 'occasionally there was atelephone call with the colleagues about the meeting.

The applicant's participation in the Economic Committee meeting on 3October 1989

191.

Appendix 70 to the statement of objections, a confidential note by a representativeof FS-Karton (of the Mayr-Melnhof group) concerning the highlights of theEconomic Committee meeting of 3 October 1989 cannot, in the absence ofdocuments confirming its content, be considered to prove the true nature ofdiscussions during meetings of the Economic Committee (see point 152 above). Although the Court has already held that the description of that document'scontent was in essence correct, the question whether that document proves thatdiscussions with an anticompetitive object took place during the meeting of 3October 1989 has not, however, been considered. The Court must thereforeconsider whether the applicant's participation in that meeting constitutes adequateproof of its participation in collusion on prices.

192.

In that regard, the discussions on prices which took place at that meetingconcerned the reactions of customers to the increase in prices of GC cartonboardapplied by the majority of producers of that cartonboard with effect from 1October 1989, after its announcement on the market some months previously. According to the Commission, that price increase also concerned SBS cartonboard,but not GD cartonboard. As to the discussions during the meeting in question, theCourt considers that they went beyond what is permitted by the Communitycompetition rules, in particular in that it was stated that it would be 'a mistake todepart from the presently established important GC price level .... By soexpressing the common intention firmly to apply the new price level for GCcartonboard, the producers did not independently determine the policy which theyintended to pursue on the market and thus undermined the concept inherent in theprovisions of the Treaty relating to competition (see, inter alia, judgment of the

Court of 16 December 1975 in Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73,111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663,paragraph 173).

193.

However, although it is common ground, first, that the applicant does notmanufacture GC cartonboard and, second, that the October 1989 price increase didnot concern GD cartonboard (see table E annexed to the Decision and point 80,second paragraph, of the Decision), it is not credible that the applicant'srepresentative(s) at the meeting of 3 October 1989 were mistaken as to the object,nature and consequences of the discussions which took place between thecompeting undertakings. At the date of that meeting the applicant had alreadytaken part in a JMC meeting (paragraph 172 above).

194.

Having regard to the foregoing, the Court considers that the applicant'sparticipation in the Economic Committee meeting of 3 October 1989 is additionalevidence of its participation in collusion on prices, which will have to be taken intoaccount in the overall assessment of the evidence on which the Commission relies.

The applicant's actual pricing behaviour

195.

In the circumstances of this case, it is appropriate to examine the applicant's actualbehaviour in order to assess whether it constitutes additional evidence of itsparticipation in collusion on prices.

196.

As regards, first, the applicant's actual behaviour in the United Kingdom, the Courtmust examine the price increases in April 1989, April 1990 and January 1991(tables D, F and G annexed to the Decision). The October 1989 price increase isnot concerned, because, as is apparent from table E annexed to the Decision, thatincrease concerned cartonboard grades not produced by the applicant.

197.

The Court finds that the amounts of the price increases concerned are inaccordance with those indicated in the documents on which the Commission reliesin support of its allegations. The amount of the April 1989 price increaseannounced by the applicant, namely UKL 25 per tonne, exactly corresponds to thatindicated in a price list found at the premises of Finnboard UK Ltd (point 79,second paragraph, of the Decision). Likewise, the price increase of UKL 45 pertonne, notified by the applicant at the beginning of 1990, is in accordance with theinformation in appendix 110 to the statement of objections, a price list obtainedfrom Rena and described by the Commission in point 83 of the Decision. Lastly,the increase of UKL 40 per tonne in January 1991 is identical to that agreedbetween the undertakings which met in Zurich on 6 September 1990 (appendix 118to the statement of objections, point 87 of the Decision).

198.

However, the applicant has explained that the identical nature of the priceincreases is due to market transparency, the role of its independent agent in the

United Kingdom and the very detailed information supplied in the specialised tradejournal, EUWID Pulp & Paper. Having regard to the fact that the applicant didnot announce an increase in its prices before the other undertakings on theoccasion of the three initiatives in question, its explanation makes it plausible,prima facie, that it merely aligned its actual conduct on the United Kingdommarket on that of the other undertakings. Since the Commission has not submittedany arguments to cast doubt on that assessment, the applicant's actual behaviouron the United Kingdom market cannot be taken to be additional evidence of itsparticipation in the collusion on prices. It must, however, be pointed out that theapplicant's actual behaviour does not diverge from that agreed at least between theother undertakings participating in the JMC meetings.

199.

As regards the applicant's actual behaviour in continental Europe, the Commissiondoes not dispute that its prices were increased annually on 1 January and/or 1 July,during the period in question, namely on different dates from those mentioned inthe Decision.

200.

The Court therefore considers that the applicant's actual pricing behaviour does notsupport the Commission's conclusions regarding its participation in collusion onprices.

Conclusion regarding the applicant's participation in collusion on prices

201.

The items of evidence on which the Commission relies in a decision in order toprove the existence of an infringement of Article 85(1) of the Treaty by anundertaking must not be assessed separately, but as a whole (Case 48/69 ICI vCommission [1972] ECR 619, paragraph 68).

202.

Following its examination, the Court considers that the applicant's participation intwo JMC meetings, whose anti-competitive purpose has been proved, and in theEconomic Committee meeting of 3 October 1989, which it found to be additionalevidence of its participation in price collusion, adequately prove that the applicantparticipated in collusion on prices during the period from April 1989 until April1991.

203.

In reply to the applicant's argument that its actual behaviour on the market isirreconcilable with the Commission's assertions regarding its participation incollusion on prices, the Court points out that it is settled law that the fact that anundertaking does not abide by the outcome of meetings which have a manifestlyanticompetitive purpose not relieve it of full responsibility for its participation inthe cartel, if it has not publicly distanced itself from what was agreed in themeetings (see, for example, the judgment in Case T-141/89 Tréfileurope vCommission [1995] ECR II-791, paragraph 85).

204.

The fact that the cartonboard prices charged by the applicant on the nationalmarkets of continental Europe were not increased on dates close to those referredto in the tables annexed to the Decision is not contested by the Commission andthe Commission even acknowledged at the hearing that it had not previouslyconsidered that point. That aspect will be taken into account by the Court whenit assesses, in the exercise of its unlimited jurisdiction in regard to fines, the gravityof the infringement found on the part of the applicant (see paragraph 343 et seq.below).

(b) The applicant's participation in collusion on downtime

205.

According to the Decision, the undertakings present at PWG meetings participated,from the end of 1987, in collusion on downtime and downtime was actually takenas from 1990.

206.

It is apparent from point 37, third paragraph, of the Decision that the true purposeof the PWG, as described by Stora, 'included discussions and concertation onmarkets, market shares, prices, price increases and capacity. Moreover, referringto 'the agreement reached in the PWG during 1987 (point 52, first paragraph, ofthe Decision), the Commission states that that agreement aimed in particular tomaintain 'constant levels of supply (point 58, first paragraph, of the Decision).

207.

As to the role played by the PWG in the collusion on the control of supply, whichwas a feature of the consideration of machine downtime, the Decision states thatthe PWG played a decisive role in implementing downtime when, from 1990,production capacity increased and demand fell: 'From the beginning of 1990 ... theindustry leaders ... considered it necessary to concert on the need for takingdowntime in the forum of the PWG. The major producers recognised that theycould not increase demand by lowering prices and that maintaining full productionwould simply bring prices down. In theory, the amount of downtime required tobring supply and demand back into balance could be calculated from the capacityreports (point 70 of the Decision).

208.

The Decision also observes: 'However, the PWG did not formally allocate thedowntime to be taken by each producer. According to Stora, there werepractical difficulties in reaching a coordinated plan on downtime to cover all theproducers. Stora says that for these reasons only a loose system of encouragementexisted (point 71 of the Decision).

209.

In appendix 39 to the statement of objections, point 24, Stora gives the followingexplanation: 'With adoption by the PWG of the policy of price before tonnage andthe gradual implementation of an equivalent price system from 1988, members ofthe PWG recognised that downtime would have to be taken to maintain thoseprices in the face of a reduced growth in demand. Without taking downtime the

producers would have been unable to maintain agreed price levels in the face ofan increasing excess of capacity.

210.

In point 25 of its statement, Stora adds: 'In 1988 and 1989 the industry was ableto run at near full capacity. Downtime in addition to normal closure for repairsand holidays became necessary from 1990. ... Ultimately downtime had to be takenwhen the order flow ceased in order to maintain the price before tonnage policy. The amount of downtime required to be taken by producers (to maintain thebalance between production and consumption) could be calculated from thecapacity reports. No formal allocation of downtime was made by the PWG,although a loose system of encouragement existed ....

211.

The Commission also bases its conclusions on appendix 73 to the statement ofobjections (see paragraph 147 above).

212.

According to that document, cited in points 53 to 55 of the Decision, the closercooperation within the 'Presidents' grouping ('Präsidentenkreis) decided on in1988 had produced 'winners and 'losers.

213.

The reasons adduced by the author of the note in order to explain why heconsidered that Mayr-Melnhof was a 'loser at the time the note was written aresignificant evidence of the existence of collusion on downtime between theparticipants in the PWG meetings.

214.

The author states:

'(4) It is at this point that there begins to be a difference in opinion between theparties involved as to what is desired.

[...]

(c) All sales representatives and European agents were released fromtheir quantity budgets and a pricing policy followed which admitted ofpractically no exceptions (our employees often did not understand ourchanged attitude to the market in the past they were just required to gofor tonnage and now the sole objective is price discipline with the dangerof having to stop machines).

215.

Mayr-Melnhof states (appendix 75 to the statement of objections) that the passagereproduced above refers to its own internal situation. However, when consideredin the light of the more general background to the note, that passage reflects theimplementation, at the level of sales personnel, of a rigorous policy adopted withinthe 'Presidents' grouping. The document must therefore be construed as meaningthat the participants in the 1987 agreement, that is to say, the participants in the

meetings of the PWG at least, undoubtedly weighed up the consequences theagreed policy would have if it were to be applied rigorously.

216.

Having regard to the foregoing, the Court finds that the Commission has provedthe existence of collusion on downtime by the participants in the PWG meetings.

217.

According to the Decision, the undertakings which participated in the meetings ofthe JMC, which included the applicant, also took part in that collusion.

218.

In that regard the Commission states, inter alia:

'Besides the Fides procedure which gave globalised figures, it was regular practicefor each individual producer to disclose its own order backlog to competitors inJMC meetings.

This information on the number of days' orders in hand was relevant for twopurposes:

deciding whether conditions were right for introducing a concerted priceincrease,

determining the downtime necessary to maintain the supply-demand balance... (point 69, third and fourth paragraphs, of the Decision).

219.

The Commission also observes as follows:

'The unofficial notes made of two JMC meetings, one in January 1990 (seerecital 84), the other in September 1990 (recital 87), as well as other documents(recitals 94 and 95) confirm, however, that the major producers kept their smallercompetitors closely and continuously informed in the PG Paperboard of their plansto take additional downtime as an alternative to decreasing prices (point 71, thirdparagraph, of the Decision).

220.

The documentary evidence concerning the JMC meetings (appendices 109, 117 and118 to the statement of objections) confirms that discussions on downtime tookplace in the context of the preparation of concerted price increases. In particular,appendix 118 to the statement of objections, a Rena note dated 6 September 1990(see also paragraph 179 above), mentions the amounts of price increases in severalcountries, the dates of the future announcements of those increases and the stateof order backlogs expressed in working days for several producers. The author ofthe document notes that certain manufacturers were providing for downtime, whichhe illustrates as follows:

'Kopparfors 5 - 15 days

5/9 will stop for five days.

221.

Furthermore, although appendices 117 and 109 to the statement of objections donot contain any information relating directly to the downtime envisaged, they showthat the state of order backlogs and order entries were discussed in the JMCmeetings of 6 September 1989 and 16 October 1989.

222.

Those documents, read in conjunction with Stora's statements, constitute sufficientproof of participation in collusion on downtime by the producers represented at theJMC meetings. The undertakings participating in collusion on prices werenecessarily aware that the object of examining the state of order backlogs and orderentries and discussions on possible downtime was not merely to determine whetherthe market conditions were favourable to a concerted price increase but also todetermine whether downtime was necessary in order to avoid the agreed price levelbeing jeopardised by an excess of supply. In particular, it is apparent fromappendix 118 to the statement of objections that the participants in the JMCmeeting of 6 September 1990 agreed on the announcement of an imminent priceincrease, even though several producers had stated that they were preparing to stopproduction. Consequently, the market conditions were such that the effectiveapplication of a future price increase was going to require, in all probability, that(additional) downtime be taken, and this is therefore a consequence which wasaccepted, at least implicitly, by the producers.

223.

Having regard to the fact that the applicant participated in only two JMC meetingsduring the period under consideration, the Court must consider appendix 70 to thestatement of objections (see paragraph 155 et seq. above), which describes theevents of the Economic Committee meeting of 3 October 1989, in which theapplicant accepts having participated.

224.

There is no passage in this appendix which establishes the real nature of thediscussions which led to the programmed plan to collude on plant downtime for thefuture. All the references which it makes to specific periods of downtime in factconcern past data. However, the document contains a passage relating to thefuture use of plant: 'If the poor entry of orders and poor loading of machinescontinues, it is clear that it will necessary to consider stopping production accordingto demand [Bei anhaltend schlechtem Auftragseingang und schlechter Belegungist es naheliegend, entsprechend dem Marktbedarf ein Abstellen zu überlegen]. Asit has been proved to the requisite legal standard that the applicant participated incollusion on prices, that document constitutes additional evidence of itsparticipation in collusion on downtime.

225.

On that basis, and without the need to consider the other evidence on which theCommission relies in the Decision (appendices 102, 113, 130 and 131 to thestatement of objections), the Court finds that the Commission has proved that theapplicant, by participating in two meetings of the JMC and the meeting of theEconomic Committee on 3 October 1989 and in the collusion on prices, took partin collusion on downtime.

226.

In that context, the Court rejects the applicant's argument that its non-participationin collusion on downtime is shown by the fact that it never took downtime.

227.

First, the Commission accepts in the Decision that it was the main producers whotook upon themselves the burden of reducing output so as to maintain price levels(point 71, second paragraph, of the Decision).

228.

Second, even assuming that it were proved that the applicant used its productioncapacity to the maximum and that such use was not in accordance with what it hadagreed in the JMC with its competitors, that is not of such a nature as to disproveits participation in collusion on downtime (see, in particular, Case T-6/89 EnichemAnic v Commission [1991] ECR II-1623, paragraph 165).

229.

The applicant must therefore be considered to have participated, from April 1989until April 1991, in collusion on downtime.

230.

The applicant disputes that it participated in collusion on market shares, but doesnot dispute the assertion in the Decision that the producers which participated inPWG meetings reached an agreement which included 'the freezing of the westEuropean market shares of the major producers at existing levels, with no attemptsto be made to win new customers or extend existing business through aggressivepricing (point 52, first paragraph, of the Decision).

231.

In those circumstances, the Court points out that, as regards the undertakings whichdid not participate in the meetings of the PWG, the Commission states as follows:

'While the smaller cartonboard producers attending meetings of the JMC were notprivy to the detailed discussions on market shares in the PWG, they were, as partof the price before tonnage policy to which they all subscribed, well aware of thegeneral understanding between the major producers to maintain constant levelsof supply and no doubt of the need to adapt their own conduct to it (point 58,first paragraph, of the Decision).

232.

Although it does not emerge expressly from the Decision, the Commission is in thisrespect confirming Stora's statements according to which:

'Other producers who did not participate in the PWG were not generally informedof the detail of the market share discussions. Nevertheless, as part of the pricebefore tonnage policy in which they participated, they would have been aware ofthe understanding by the major producers not to undermine prices by maintainingconstant levels of supply.

As regards the supply of GC [cartonboard], in any event, the shares of theproducers who did not participate in the PWG were of such an insignificant levelthat their participation or non-participation in the market share understandings hadvirtually no impact one way or the other (appendix 43 to the statement ofobjections, point 1.2.).

233.

The Commission, like Stora, is therefore proceeding from the assumption that, evenin the absence of direct evidence, the undertakings which did not participate inmeetings of the PWG but which have been proved to have subscribed to the otherconstituent elements of the infringement set out in Article 1 of the Decision musthave been aware of the existence of collusion on market shares.

234.

Such a line of reasoning cannot be accepted. First, the Commission does not relyon any evidence to show that the undertakings which were not present at themeetings of the PWG subscribed to a general agreement providing, in particular,for the freezing of the market shares of the main producers.

235.

Second, the mere fact that those undertakings participated in collusion on pricesand collusion on downtime does not demonstrate that they also participated incollusion on market shares. Contrary to the Commission's apparent claim, thecollusion on market shares was not intrinsically linked to collusion on prices and/orcollusion on downtime. It suffices to point out that the aim of the collusion onmarket shares by the main producers who met in the PWG was, according to theDecision (see point 52 et seq. of the Decision), to maintain market shares atconstant levels, with occasional amendments, even during periods in which marketconditions, and in particular the balance between supply and demand, were suchthat it was unnecessary to control production in order to guarantee the effectiveimplementation of the agreed price increases. It follows that any participation incollusion on prices and/or collusion on downtime does not show that theundertakings which were not present at the meetings of the PWG participateddirectly in collusion on market shares, or that they were, or necessarily should havebeen, aware of it.

236.

Third, in the second and third paragraphs of point 58 of the Decision, theCommission relies, as additional evidence to support the assertion in question, onappendix 102 to the statement of objections, a note obtained from Rena which,according to the Decision, relates to a special meeting of the NPI held on 3October 1988. It suffices to state that the applicant was not a member of the NPIand that the reference in that document to a possible need to take downtimecannot, for the reasons already stated, constitute evidence of collusion on marketshares.

237.

In order to be entitled to hold each addressee of a decision, such as the presentdecision, responsible for an overall cartel during a given period, the Commissionmust demonstrate that each undertaking concerned either consented to the

adoption of an overall plan comprising the constituent elements of the cartel orthat it participated directly in all those elements during that period. Anundertaking may also be held responsible for an overall cartel even though it isshown that it participated directly only in one or some of the constituent elementsof that cartel, if it is shown that it knew, or must have known, that the collusion inwhich it participated was part of an overall plan and that the overall plan includedall the constituent elements of the cartel. Where that is the case, the fact that theundertaking concerned did not participate directly in all the constituent elementsof the overall cartel cannot relieve it of responsibility for the infringement ofArticle 85(1) of the Treaty. Such a circumstance may nevertheless be taken intoaccount when assessing the seriousness of the infringement which it is found tohave committed.

238.

In the present case, the Court finds that the Commission has not proved that theapplicant knew, or must have known, that its own unlawful conduct was part of anoverall plan which included, over and above the collusion on prices and thecollusion on downtime in which it actually participated, also collusion on the marketshares of the major producers.

239.

Having regard to the foregoing, the Commission has not proved that the applicantparticipated in collusion on market shares in regard to the period from April 1989until April 1991.

(d) Conclusion regarding the applicant's participation in an infringement ofArticle 85(1) of the Treaty during the period from April 1989 to April 1991

240.

After considering the evidence before it, the Court finds that the Commission hasproved that the applicant participated in collusion on prices and collusion ondowntime during the period in question. However, it has not proved that theapplicant participated in collusion on market shares during that same period.

3. General conclusion regarding the plea

241.

On the basis of the foregoing, the Court finds that the Commission has not provedthat the applicant participated in any infringement of Article 85(1) of the Treatybefore April 1989 and that it has not proved that it participated in collusion onmarket shares during the period from April 1989 to April 1991.

242.

Article 1 of the Decision should therefore be annulled, as regards the applicant, inso far as the date of the beginning of the infringement alleged against it has beenfixed at a date prior to April 1989.

243.

The eighth indent of Article 1 of the Decision, according to which the object of theagreement and concerted practice in which it participated was to '[maintain] the

market shares of the major producers at constant levels, subject to modificationfrom time to time, should be also be annulled as regards the applicant.

244.

The remainder of the plea must be rejected as unfounded.

D The plea of infringement of the rights of defence in that the Commission did notdisclose all relevant documents

Arguments of the parties

245.

The applicant observes that during the administrative procedure it requested accessto the Commission's complete file of papers concerning the ACBM and that theCommission refused to grant it access to part of those documents.

246.

The Commission's approach infringed the applicant's rights of defence, because theright to be heard extends to exculpatory documents (Case T-7/89 HerculesChemicals v Commission [1991] ECR II-1711, paragraph 54) and Article 20(2) ofRegulation No 17 does not prejudice that right. The obligation of confidentialityimposed by the latter provision does not justify the refusal to allow access todocuments which may contain exculpatory evidence.

247.

At the hearing, after having been granted access to the documents in question (seeparagraph 27 above), the applicant maintained this plea and relied on twoarguments in that regard.

248.

First, the applicant claimed that a handwritten note concerning the ACBM meetingof 11 December 1985 (document 20 339) could have supported its defence duringthe administrative procedure. It is apparent from that document that the agentswho met in the PAA were in fact independent of the cartonboard producers. Thatdocument therefore confirms its argument that the Commission should not haverelied on documents relating to meetings of the PAA as evidence against theapplicant (see points 94 to 98 of the Decision).

249.

Second, there is no basis for concluding that the documents to which it has beengiven access constitute the whole of the Commission's file concerning the ACBM.

250.

The Commission considers that the ACBM documents were not necessary toensure the applicant's right to be heard and that, because of its obligation underArticle 20(2) of Regulation No 17 to observe business secrets, it was obliged torefuse to disclose the documents in question to the applicant.

251.

At the hearing the Commission also challenged the applicant's argument that thehandwritten note concerning the ACBM meeting of 11 December 1985 could havesupported the applicant's defence during the administrative procedure.

Findings of the Court

252.

The Court points out that there has been no submission by the applicant, after itobtained access to all the documents concerning the ACBM, to the effect thatthose documents contain information which could prove that it did not participatein the alleged infringement.

253.

The applicant merely states that the handwritten note concerning the ACBMmeeting of 11 December 1985 (document 20 339) confirms that the appendices tothe statement of objections relating to the PAA could not be used as evidence ofits participation in an infringement of Article 85(1) of the Treaty.

254.

It is apparent from the foregoing (see paragraphs 131 to 168 above) that Article1 of the Decision must be annulled in so far as the Commission considered that theapplicant had participated in an infringement of Article 85(1) of the Treaty duringthe period from mid-1986 until April 1989.

255.

Furthermore, as regards the period from April 1989 until April 1991, the Court hasfound that the Commission has not proved that the applicant participated incollusion on market shares. On the other hand, as follows from the above findings,the Commission, by relying on evidence other than the documents concerning thePAA meetings, has proved that the applicant participated during the period inquestion in collusion on prices and collusion on downtime.

256.

Consequently, even assuming that the Commission was not entitled to rely, asagainst the applicant, on the documents concerning the PAA meetings as evidenceof its participation in an infringement of Article 85(1) of the Treaty, that fact couldnot, in itself, affect the validity of the Decision to the extent that it finds that theapplicant participated in collusion on prices and collusion on downtime during theperiod from April 1989 until April 1991, because that finding was not based on thedocuments in question alone (see, to the same effect, Joined Cases 100/80, 101/80,102/80 and 103/80 Musique Diffusion Française and Others v Commission [1983]ECR 1825, paragraph 30).

257.

The Court rejects the applicant's argument that it is impossible to know whetherthe file relating to the ACBM to which it has been given access contains all thedocuments in the Commission's possession because the applicant has not putforward any evidence in support of that allegation.

258.

Having regard to the foregoing, the plea must be rejected.

The application for annulment of Article 2 of the Decision

Arguments of the parties

259.

The applicant submits that Article 2 of the Decision is worded so vaguely that, asregards future exchanges of information, it is difficult to distinguish betweenexchanges of information which are prohibited and those which are permitted.

260.

The applicant relies on the Seventh Report on competition policy (paragraph 7(1))to support its argument that there is no precedent indicating that the exchange ofinformation on 'the present state of the order inflow and backlog is a breach ofArticle 85(1) of the Treaty. Moreover, if there is no exchange of information onorder inflow and backlog, undertakings operating in the industry, in particular thesmaller undertakings, would be unable to adapt to changes in the market.

261.

Information on order backlog can be collected from customers and an exchange ofstatistical information concerning the weekly order backlog would not thereforeresult in any great increase in market transparency.

262.

Furthermore, the Commission did not assert in the Decision that the exchange ofaggregated data on order backlogs was illegal per se (see point 134 of the Decision).

263.

In any event, the Commission should not have prohibited the exchanges withouthaving expressed a view on the notification made by CEPI-Cartonboard fornegative clearance or exemption under Article 85(3) of the Treaty in regard to anew information exchange system.

264.

The Commission submits that it is entitled to include in its decision a directionprohibiting the continuation of the infringement, a practice which the Court hasconfirmed, even when the order was less detailed than in the present case (see,inter alia, Rhône-Poulenc v Commission, cited above and Case T-83/91 Tetra Pakv Commission [1994] ECR II-755, paragraphs 219 to 223). Moreover, in so far asa direction of this type prohibits the addressees from engaging in the future in asystem with the same or similar object or effect, it merely sets out in a particularcontext the general prohibition laid down in Article 85(1) of the Treaty (Case T-34/92 Fiatagri and New Holland Ford v Commission [1994] ECR II-905, paragraph39).

265.

It was found that the price initiatives and the 'price before volume principle werebacked up by a sophisticated and comprehensive information exchange system. That system provided the cartel members with the information necessary for theirconcerted measures and enabled them to monitor the implementation of thosemeasures (points 65 to 71 and 134 of the Decision).

266.

The information exchange system as modified following the Commission'sinvestigation (see points 105 and 106 of the Decision) was also considered to becontrary to Article 85(1) of the Treaty because the exchange of certain information,even in aggregated form, was still capable of being used to coordinate thecommercial behaviour of the participant undertakings. The assessment of the

amended information exchange system was necessarily influenced by the pastexistence of the cartel.

267.

The direction in Article 2 of the Decision, of necessity expressed in general termsas it is intended to cover a range of future behaviour, cannot, however, be regardedas an absolute prohibition of any exchange of information. It prohibits theaddressees from exchanging certain sensitive business information of the variousproducers, information promoting, facilitating or encouraging concerted businessconduct, or information enabling them to monitor compliance with restrictiveagreements.

268.

Such a prohibition does not preclude the grant of an exemption or negativeclearance for any scheme notified. The Decision does not prejudge any subsequentdecision which the Commission is required to take in relation to the informationexchange system notified by CEPI-Cartonboard on 6 December 1993.

Findings of the Court

269.

It will be recalled that Article 2 of the Decision provides as follows:

'The undertakings named in Article 1 shall forthwith bring the said infringementto an end, if they have not already done so. They shall henceforth refrain inrelation to their cartonboard activities from any agreement or concerted practicewhich may have the same or a similar object or effect, including any exchange ofcommercial information:

(a) by which the participants are directly or indirectly informed of theproduction, sales, order backlog, machine utilisation rates, selling prices,costs or marketing plans of other individual producers; or

(b) by which, even if no individual information is disclosed, a common industryresponse to economic conditions as regards price or the control ofproduction is promoted, facilitated or encouraged;

(c) by which they might be able to monitor adherence to or compliance withany express or tacit agreement regarding prices or market sharing in theCommunity.

Any scheme for the exchange of general information to which they subscribe, suchas the Fides system or its successor, shall be so conducted as to exclude not onlyany information from which the behaviour of individual producers can be identifiedbut also any data concerning the present state of the order inflow and backlog, the

forecast utilisation rate of production capacity (in both cases, even if aggregated)or the production capacity of each machine.

Any such exchange system shall be limited to the collection and dissemination inaggregated form of production and sales statistics which cannot be used to promoteor facilitate common industry behaviour.

The undertakings are also required to abstain from any exchange of informationof competitive significance in addition to such permitted exchange and from anymeetings or other contact in order to discuss the significance of the informationexchanged or the possible or likely reaction of the industry or of individualproducers to that information.

A period of three months from the date of the communication of this Decisionshall be allowed for the necessary modifications to be made to any system ofinformation exchange.

270.

As is apparent from point 165 of the Decision, Article 2 was adopted in accordancewith Article 3(1) of Regulation No 17. By virtue of that provision, where theCommission finds that there is an infringement, inter alia, of Article 85 of theTreaty, it may require the undertakings concerned to bring the infringement to anend.

271.

It is settled law that Article 3(1) of Regulation No 17 may be applied so as toinclude an order directed at bringing an end to certain acts, practices or situationswhich have been found to be unlawful (Joined Cases 6/73 and 7/73 IstitutoChemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223,paragraph 45, Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission[1995] ECR I-743, paragraph 90), and also at prohibiting the adoption of similarconduct in the future (Tetra Pak v Commission, cited above, paragraph 220).

272.

Moreover, since Article 3(1) of Regulation No 17 is to be applied according to thenature of the infringement found, the Commission has the power to specify theextent of the obligations on the undertakings concerned in order to bring aninfringement to an end. Such obligations on the part of the undertakings may not,however, exceed what is appropriate and necessary to attain the objective sought,namely to restore compliance with the rules infringed (judgment in RTE and ITPv Commission, cited above, paragraph 93; to the same effect, see Case T-7/93Langnese-Iglo v Commission [1995] ECR II-1533, paragraph 209, and Case T-9/93Schöller v Commission [1995] ECR II-1611, paragraph 163).

273.

As regards, first, the applicant's argument that the Commission committed an errorof law in adopting Article 2 of the Decision without having first expressed its viewon the compatibility with Article 85 of the information exchange system notified byCEPI-Cartonboard, the Court observes that the notification made by that

association on 6 December 1993 related to a new information exchange system,separate from that considered by the Commission in the Decision. When adoptingArticle 2 of the contested decision, the Commission could not therefore assess thelegality of the new system in the context of that decision. When adopting thatarticle, it was therefore entitled simply to examine and express a view on the oldinformation exchange system.

274.

In order to verify whether, as the applicant claims, the scope of the direction inArticle 2 of the Decision is too wide, it is necessary to consider the extent of thevarious prohibitions it places on the undertakings.

275.

The prohibition in the second sentence of the first paragraph of Article 2, requiringthe undertakings to refrain in future from any agreement or concerted practicewhich may have an effect which is the same as, or similar to, those of theinfringements found in Article 1 of the Decision, is aimed solely at preventing theundertakings from repeating the behaviour found to be unlawful. Consequently,in adopting such directions, the Commission has not exceeded the powers conferredon it by Article 3 of Regulation No 17.

276.

The provisions of subparagraphs (a), (b) and (c) of the first paragraph of Article 2are directed more specifically at prohibiting future exchange of commercialinformation.

277.

The direction in subparagraph (a) of the first paragraph of Article 2, whichprohibits any future exchange of commercial information by which the participantsdirectly or indirectly obtain individual information on competitors, presupposes afinding by the Commission in the Decision that an information exchange of sucha nature is unlawful under Article 85(1) of the Treaty.

278.

It should be noted that Article 1 of the Decision does not state that the exchangeof individual commercial information in itself constitutes an infringement ofArticle 85(1) of the Treaty.

279.

It states more generally that the undertakings infringed that article of the Treatyby participating in an agreement and concerted practice whereby the undertakings,inter alia, 'exchanged commercial information on deliveries, prices, plant standstills,order backlogs and machine utilisation rates in support of the above measures.

280.

However, since the operative part of a decision must be interpreted in the light ofthe statement of reasons for it (Suiker Unie and Others v Commission, cited above,paragraph 122), it should be noted that the second paragraph of point 134 of theDecision provides:

'The exchanging by producers of normally confidential and sensitive individualcommercial information in meetings of the PG Paperboard (mainly the JMC) onorder backlog, machine closures and production rates was patently anti-competitive,

being intended to ensure that the conditions for implementing agreed priceinitiatives were as propitious as possible. ....

281.

Consequently, as the Commission duly found in the Decision that the exchange ofindividual commercial information in itself constituted an infringement ofArticle 85(1) of the Treaty, the future prohibition of such an exchange ofinformation satisfies the conditions for the application of Article 3(1) of RegulationNo 17.

282.

The prohibitions relating to the exchanges of commercial information referred toin subparagraphs (b) and (c) of the first paragraph of Article 2 of the Decisionmust be considered in the light of the second, third and fourth paragraphs of thatarticle, which support what is expressed in those subparagraphs. It is in this contextthat it is necessary to determine whether, and if so to what extent, the Commissionconsidered the exchanges in question to be illegal, since the extent of theobligations on the undertakings must be restricted to that which is necessary inorder to bring their conduct into line with what is lawful under Article 85(1) of theTreaty.

283.

The Decision must be interpreted as meaning that the Commission considered theFides system to be contrary to Article 85(1) of the Treaty in that it underpinnedthe cartel (point 134, third paragraph, of the Decision). Such an interpretation isborne out by the wording of Article 1 of the Decision, from which it is apparentthat the commercial information was exchanged between the undertakings 'insupport of the ... measures considered to be contrary to Article 85(1) of theTreaty.

284.

The scope of the future prohibitions set out in subparagraphs (b) and (c) of thefirst paragraph of Article 2 of the Decision must be assessed in the light of thatinterpretation by the Commission of the compatibility, in the present case, of theFides system with Article 85 of the Treaty.

285.

In that regard, first, the prohibitions in question are not restricted to exchanges ofindividual commercial information, but relate also to certain aggregated statisticaldata (Article 2, first paragraph, (b), and second paragraph, of the Decision). Second, subparagraphs (b) and (c) of the first paragraph of Article 2 prohibit theexchange of certain statistical information in order to prevent the establishment ofa possible support for future anti-competitive conduct.

286.

Such a prohibition exceeds what is necessary in order to bring the conduct inquestion into line with what is lawful because it seeks to prevent the exchange ofpurely statistical information which is not in, or capable of being put into, the formof individual information on the ground that the information exchanged might beused for anti-competitive purposes. First, it is not apparent from the Decision thatthe Commission considered the exchange of statistical data to be in itself an

infringement of Article 85(1) of the Treaty. Second, the mere fact that a systemfor the exchange of statistical information might be used for anti-competitivepurposes does not make it contrary to Article 85(1) of the Treaty, since in suchcircumstances it is necessary to establish its actual anti-competitive effect. Itfollows that the Commission's argument that Article 2 of the Decision is purelydeclaratory in nature (paragraph 264 above) is unfounded.

287.

Consequently, the first to fourth paragraphs of Article 2 of the Decision must beannulled, save and except as regards the following passages:

Any scheme for the exchange of general information to which they subscribe, suchas the Fides system or its successor, shall be so conducted as to exclude anyinformation from which the behaviour of individual producers can be identified.

The application for annulment or reduction of the fine

1. The pleas concerning matters dealt with in the course of common argument

288.

At the informal meeting on 29 April 1997 the undertakings which had broughtactions to contest the Decision were requested to consider whether they wished topresent common oral argument in the event that the cases were joined for thepurposes of the oral procedure. It was stressed that oral argument could bepresented in common only by applicants which had actually relied on pleas in theirapplications which corresponded to the subjects to be dealt with in commonargument.

289.

By fax of 14 May 1997, lodged in the name of all the applicants, those applicantsinformed the Court of their decision to deal with six subjects in common oralargument, including the following:

(a) the description of the market and the cartel's lack of effects;

and

(b) the statement of reasons relating to the fines.

290.

The applicant has not submitted any plea or argument concerning those subjectsin its application. It nevertheless stated at the hearing that it adopted the commonoral argument in question.

291.

The Court points out that under the first subparagraph of Article 48(2) of theRules of Procedure no new plea in law may be introduced in the course ofproceedings unless it is based on matters of law or of fact which have come to lightin the course of the procedure. In the present case, the applicant has not relied onany matter of law or of fact which has come to light during the procedure such asto justify the submission of the new pleas in question.

292.

Those pleas, on which the applicant relied for the first time at the hearing, aretherefore inadmissible.

2. The plea of infringement of the principle of proportionality

Arguments of the parties

293.

The applicant contends, first, that a reduction in the fine may be justified where thesupply of evidence to the Commission enables it to put an end to the allegedinfringement more quickly (ICI v Commission, cited above, paragraph 393). However, such a reduction must be proportionate to the cooperation.

294.

In the present case, the reduction given to Stora and Rena on account of theircooperation with the Commission is totally disproportionate, because thatcooperation was given at a late stage (nine months after the filing of the complaintand four months after the Commission's investigations) and it is doubtful that it ledto the termination of the infringement. That lack of proportion between the finesimposed discriminates between the undertakings fined.

295.

Second, the level of the fine adopted in regard to the smaller producers isexcessively high, since those undertakings did not participate either in price fixingor in the drawing up or implementation of measures to restrict production.

296.

The applicant and the other smaller producers have been victims of theCommission's attempt to achieve two contradictory objectives. On the one hand,the Commission wanted to impose a high fine on Stora to reflect the fact that itwas one of the 'ringleaders of the alleged cartel. On the other hand, thereduction granted to that undertaking was large in order to create a precedentwhich would induce undertakings to refrain from defending themselves.

297.

Those two objectives could be achieved only by imposing a high level of fine on allthe producers. Such considerations should not have been taken into account whencalculating the fine.

298.

The Commission denies the applicant's allegation that the level of the fines wasartificially very high so as to enable Stora to be granted an unfairly large reduction.

299.

Moreover, the cooperation of Stora and Rena was timely and contributed greatlyto the conclusion of the proceedings.

Findings of the Court

300.

The applicant's line of argument is based on the premiss that the Commission setan abnormally high general level of fines. The Court must therefore considerwhether the Commission committed a manifest error of assessment when it set thatlevel.

301.

In the present case, the Commission determined the general level of fines by takinginto account the duration of the infringement (point 167 of the Decision) and thefollowing considerations (point 168):

' collusion on pricing and market sharing are by their very nature seriousrestrictions on competition,

the cartel covered virtually the whole territory of the Community,

the Community market for cartonboard is an important industrial sectorworth some ECU 2 500 million each year,

the undertakings participating in the infringement account for virtually thewhole of the market,

the cartel was operated in the form of a system of regular institutionalisedmeetings which set out to regulate in explicit detail the market forcartonboard in the Community,

elaborate steps were taken to conceal the true nature and extent of thecollusion (absence of any official minutes or documentation for the PWGand JMC; discouraging the taking of notes; stage-managing the timing andorder in which price increases were announced so as to be able to claimthey were following, etc.),

the cartel was largely successful in achieving its objectives.

302.

Moreover, according to the Commission's reply to a written question from theCourt, fines of a basic level of 9 or 7.5% of the turnover of each undertakingaddressed by the decision on the Community cartonboard market in 1990 wereimposed on the undertakings regarded as the 'ringleaders of the cartel and on theother undertakings respectively.

303.

It should be pointed out, first, that when assessing the general level of fines theCommission is entitled to take account of the fact that clear infringements of theCommunity competition rules are still relatively frequent and that, accordingly, itmay raise the level of fines in order to strengthen their deterrent effect. Consequently, the fact that in the past the Commission applied fines of a certainlevel to certain types of infringement does not mean that it is estopped from raisingthat level, within the limits set out in Regulation No 17, if that is necessary in orderto ensure the implementation of Community competition policy (see, inter alia,Joined Cases 100/80, 101/80, 102/80 and 103/80 Musique Diffusion Française andOthers v Commission [1983] ECR 1825, paragraphs 105 to 108, and Case T-13/89ICI v Commission [1992] ECR II-1021, paragraph 385).

304.

Second, it is apparent from the Decision that no general mitigating circumstancewas taken into account in the present case when determining the general level offines. Moreover, the adoption of measures to conceal the existence of the collusionshows that the undertakings concerned were fully aware of the unlawfulness of theirconduct. Consequently, the Commission was entitled to take into account thosemeasures when assessing the gravity of the infringement, because they constitutea particularly serious aspect of the infringement.

305.

Third, the Court notes the lengthy duration and obviousness of the infringementof Article 85(1) of the Treaty which was committed despite the warning which theCommission's previous decisions, in particular Commission Decision 86/398/EECof 23 April 1986 relating to a proceeding under Article 85 of the EEC Treaty(IV/31.149 Polypropylene, OJ 1986 L 230, p. 1), should have provided.

306.

On the basis of those factors, the criteria set out in point 168 of the Decision justifythe general level of fines set by the Commission. There is therefore nothing tosupport the conclusion that the Commission took extraneous considerations intoaccount when determining the amount of the fines.

307.

As regards the question whether the basic rates adopted as against undertakingsconsidered to be 'ringleaders and 'ordinary members respectively sufficientlytake into account the role actually played by each of the undertakings in the cartel,the Court finds, first, that the Commission correctly considered that theundertakings which participated in the PWG meetings had to bear a specialresponsibility for the infringement (point 170 of the Decision).

308.

Furthermore, it correctly assessed the gravity of the infringement committed by thecartel 'ringleaders and by its 'ordinary members in adopting, for the purpose ofcalculating the fines imposed on those two categories of undertakings, basic ratesof 9 and 7.5% of relevant turnover respectively.

309.

Lastly, in so far as the applicant submits that it has been the subject ofdiscrimination in comparison with Stora and Rena, the Court points out that, in

accordance with settled law, the principle of equal treatment, a general principleof Community law, is infringed only where comparable situations are treateddifferently or different situations are treated in the same way, unless such differencein treatment is objectively justified (Case 106/83 Sermide [1984] ECR 4209,paragraph 28, Case C-174/89 Hoche [1990] ECR I-2681, paragraph 25; to the sameeffect Case T-100/92 La Pietra v Commission [1994] ECR-SC II-275, paragraph 50).

310.

In the present case Stora supplied the Commission with statements containing avery detailed description of the nature and object of the infringement, theoperation of the various bodies of the PG Paperboard and the participation in theinfringement of various producers. By those statements, Stora supplied informationgoing well beyond that which may be required by the Commission pursuant toArticle 11 of Regulation No 17. Although the Commission states in the Decisionthat it obtained evidence corroborating the information contained in Stora'sstatements (points 112 and 113 of the Decision), it is clearly apparent that Stora'sstatements constituted for the Commission the principal evidence of the existenceof the infringement. It must therefore be concluded that without Stora's statementsit would at the very least have been much more difficult for the Commission to findand, where necessary, put an end to the infringement with which the Decision isconcerned.

311.

In those circumstances, and even though Stora cooperated only after theCommission had initiated investigations at the undertakings pursuant to Article14(3) of Regulation No 17, the Commission, by reducing by two-thirds the fineimposed on Stora, did not overstep the limits of its discretion when determining theamount of fines.

312.

As regards the reduction in Rena's fine, it suffices to hold that the applicant hasnot disputed the statement in the second paragraph of point 171 of the Decisionthat Rena 'provided important documentary evidence to the Commission on avoluntary basis.

313.

On the other hand, in its reply to the statement of objections the applicant deniedany participation in an infringement of Article 85(1) of the Treaty. In thosecircumstances, the applicant cannot validly claim to have suffered discrimination incomparison with Stora and Rena.

314.

Having regard to the foregoing considerations, the plea must be rejected.

3. The plea alleging infringement of the principle against self-incrimination

Arguments of the parties

315.

The applicant observes, first, that a reduction of two-thirds of the fine was grantedto Rena and Stora on account of their active cooperation with the Commission and,

second, that a reduction of one-third of the fine was granted to the undertakingswhich, in their replies to the statement of objections, did not contest the essentialfactual allegations on which the Commission based its objections (points 171 and172 of the Decision).

316.

However, where the Commission imposes fines, it is not authorised to distinguishbetween undertakings which have contested its allegations and those which havenot done so. Referring to the judgment in Case 374/87 Orkem v Commission [1989]ECR 3283, paragraph 35, the applicant considers that when an undertaking is thesubject of an investigation, it must be able to decide freely upon its system ofdefence. However, such freedom would cease to exist if the Commission couldimpose a heavier fine on an undertaking which defends itself.

317.

The Commission's decision is also contrary to Article 6 of the EuropeanConvention for the Protection of Human Rights and Fundamental Freedoms of 4November 1950 (hereinafter the 'ECHR), a provision which is applicable tocompetition authorities (opinion of the European Commission of Human Rightsin Stenuit v France, No 11598/85, report of 30 May 1991, series A, No 232-A).

318.

The fine imposed on the applicant should therefore be reduced to the level of thatimposed on undertakings which did not contest that they had participated in theinfringement.

319.

With regard more particularly to the reductions granted by the Commission toStora and Rena, the statements of those two undertakings consisted mainly ofexplanatory statements, not documents or factual information. The supply of suchinformation has been held by the Court of Justice to be self-incriminating (Orkemv Commission, cited above). The right to refuse to give evidence against oneselfwould be meaningless if the Commission were authorised to impose higher fineson undertakings which rely on that right than on undertakings which do not. Noreduction in the fine should therefore be granted for a form of cooperation whichundertakings have the right not to provide.

320.

The Commission considers that it is within its discretion to grant reductions in finesto undertakings which have cooperated with it during its investigations. Thejudgment in Orkem v Commission, cited above, does not in any way limit thatdiscretion. The fact that the Commission may not compel an undertaking to admitthe evidence of an infringement does not prohibit it from granting a reduction ina fine in recognition of cooperation shown by an undertaking during itsinvestigations.

321.

Lastly, the cooperation by Stora and Rena was given at an early stage andcontributed significantly to the conclusion of the proceedings.

Findings of the Court

322.

As is apparent from the table produced by the Commission in reply to a writtenquestion from the Court, the fine imposed on the applicant was set at 7.5% of itsturnover on the Community cartonboard market in 1990. That fine has not beenreduced.

323.

Given that the Court has found the general level of fines adopted by theCommission to be justified in the light of the criteria set out in the Decision, theCourt finds that the Commission, as it indicated in the Decision, in fact reduced theamount of the fines imposed on undertakings where they had adopted acooperative attitude during the administrative procedure. The applicant's argumentthat the Commission increased the amount of the fines imposed on theundertakings which had availed themselves of their rights of defence cannottherefore be upheld.

324.

Consequently, the Commission, by reducing the amount of the fines on account ofcooperation, did not compel the applicant to provide answers which might involvean admission on its part of the existence of an infringement (see Orkem vCommission, cited above, paragraph 35).

325.

Moreover, in that context, the Court finds that a decision not to reply to thestatement of objections or not to express a view in such a reply on theCommission's factual allegations in the statement of objections, together with adecision to challenge all or most of those allegations in a reply all of which areways of exercising rights of the defence during the administrative procedure beforethe Commission cannot justify a reduction in the fine on grounds of cooperationduring the administrative procedure. A reduction on those grounds is justified onlyif the conduct made it easier for the Commission to establish an infringement and,as the case may be, to put an end to it (see the judgment in ICI v Commission,cited above, paragraph 393). In those circumstances, an undertaking whichexpressly states that it is not contesting the factual allegations on which theCommission bases its objections may be regarded as having facilitated theCommission's task of finding and bringing to an end infringements of theCommunity competition rules.

326.

In this case, in its reply to the statement of objections the applicant denied anyparticipation in an infringement of Article 85(1) of the Treaty. Its behaviour wasnot therefore such as to justify a reduction in the fine on grounds of cooperationduring the administrative procedure.

327.

Lastly, as regards Article 6 of the ECHR, it suffices to find that the applicant hasnot adduced any evidence to support that argument.

328.

The plea must therefore be rejected.

4. Incorrect assessment of the criteria for determining the fine

Arguments of the parties

329.

The applicant considers, first, that, since the Commission erroneously assessed itsalleged participation in the cartel, it has not correctly taken into account the criteriafor determining the fine as set out in point 169 of the Decision.

330.

As to the role played by each undertaking in the collusive agreements (point 169,first paragraph, of the Decision), it is apparent from the Decision (point 170) thatthe only distinction considered was that between the cartel 'ringleaders and its'ordinary members, and that no other factor relating to individual behaviour wastaken into account by the Commission. The Commission therefore made an overallassessment of participation in the alleged cartel and failed to assess the role ofeach individual producer.

331.

As regards the importance of each undertaking in the industry (point 169, thirdparagraph), it should have been evident to the Commission that the applicant wasa small producer. It is clear from the press conference of 13 July 1984 held by theMember of the Commission responsible for competition policy that the real size ofthe undertakings was not taken into account.

332.

The Commission submits that, as is clear from point 169 of the Decision, it tookinto account the factors to which the applicant refers when it determined theamount of the fine imposed on the applicant.

333.

The Commission points out that it found the existence of a single infringement andstates that the fines were imposed on that basis. Consequently, since all theaddressees of the Decision committed the whole of that infringement, the fine wasimposed on the applicant not only for the price initiatives which it implemented butalso for the other elements of the infringement referred to in Article 1 of theDecision.

334.

Lastly, the size of each producer was necessarily taken into account, since the fineswere calculated on the basis of turnover.

Findings of the Court

335.

It is common ground that the fines imposed were calculated on the basis of theturnover on the Community cartonboard market in 1990 of each undertakingaddressed by the Decision. Fines of a basic level of 9 or 7.5% of that individualturnover were then imposed on the undertakings considered to be the cartel'ringleaders and on the other undertakings respectively.

336.

The fine imposed on the applicant corresponds to 7.5% of its turnover on theCommunity cartonboard market in 1990. The Commission, in taking that turnoveras a basis, took into account the applicant's importance in the industry.

337.

It has already been found that the applicant cannot be held responsible forcollusion on market shares.

338.

Despite that finding, the Court considers, in the exercise of its unlimitedjurisdiction, that the gravity of the infringement of Article 85(1) of the Treaty whichthe applicant is found to have committed, namely its participation in the collusionon prices and on downtime, is still such that the amount of the fine should not bereduced.

339.

In that regard, the Court observes that the applicant did not participate in thePWG meetings and fines were not therefore imposed upon it as a cartel'ringleader. Because, as the Commission itself states, the applicant was not a'prime mover of the cartel (point 170, first paragraph, of the Decision), the levelof fine adopted in regard to it was 7.5% of its turnover on the Communitycartonboard market in 1990. That general level of the fines is justified (seeparagraph 331 et seq. above).

340.

Furthermore, even though the Commission wrongly considered that producerswhich were not represented in the PWG were 'well aware of the collusion onmarket shares (point 58, first paragraph, of the Decision), it is nevertheless clearfrom the Decision itself that it was the undertakings meeting in the PWG whichtook concerted action on the 'freezing of market shares (in particular point 52 ofthe Decision) and that there was no discussion of the market shares held by theproducers which were not represented in it. Moreover, as the Commission statedin point 116, second paragraph, of the Decision, 'by their very nature the marketsharing arrangements (particularly the freezing of shares described in recitals 56and 57) involved primarily the major producers. The collusion on market shareswrongly attributed to the applicant was therefore, in the Commission's own view,merely a secondary aspect of collusion on prices.

341.

As regards the applicant's argument that, when determining the amount of the fine,the Commission failed to take into account the role which it played in the cartel(see point 169, first paragraph, of the Decision), the Court points out that theCommission has accepted in its written pleadings that it did not consider that theapplicant had played a less significant role in the cartel than the other 'ordinarymembers of it, namely the undertakings which were not represented in the PWG.

342.

In that regard, the Decision explains that the undertakings which did not participatein the PWG meetings were informed at JMC meetings of the decisions adopted bythe PWG and that the JMC constituted the principal centre both for thepreparation of decisions adopted by the PWG and for detailed discussionsconcerning the implementation of those decisions (see, in particular, points 44 to

48 of the Decision). In those circumstances, the Commission correctly assessed thegravity of the infringement committed by the cartel 'ringleaders and by its'ordinary members respectively, in adopting, for the purpose of calculating thefines imposed on those two categories of undertakings, basic rates of 9 and 7.5%of relevant turnover.

343.

However, the applicant's participation in the meetings of the JMC is proven onlyin regard to two of the 17 meetings of that body held during the period in whichit is proved that the applicant committed an infringement of Article 85(1) of theTreaty, namely the period from April 1989 until April 1991. As is apparent fromTable 4 annexed to the Decision, the applicant's participation in the meetings ofthat body was significantly more sporadic than that of the other undertakingsregarded as 'ordinary members of the cartel.

344.

Furthermore, as has already been pointed out, the Commission does not disputethat the applicant's prices in continental Europe were increased annually during theperiod in question on 1 January and/or 1 July, that is to say on different dates fromthose agreed in the PG Paperboard.

345.

Having regard to those factors, the applicant should have been regarded as havingplayed a less significant role in the alleged cartel than that of the otherundertakings considered to be 'ordinary members of it.

346.

Likewise, regard must be had to the fact that the Commission has not proved thatthe applicant participated in an infringement of Article 85(1) of the Treaty frommid 1986 until March 1989.

347.

Taking those factors into account, the Court, exercising its unlimited jurisdiction,will reduce the amount of the fine.

348.

It follows from the whole of the foregoing that Article 1 of the Decision must beannulled in regard to the applicant in so far as the date of the beginning of theinfringement alleged against it has been stated to be prior to April 1989. Theeighth indent of Article 1 of the Decision must also be annulled as regards theapplicant. Finally, Article 2 of the Decision must be annulled in part as regards theapplicant.

349.

The amount of the fine imposed on the applicant by Article 3 of the Decision willbe set at ECU 750 000.

350.

The remainder of the application must be rejected.

Costs

351.

Under Article 87(3) of the Rules of Procedure, the Court may, where each partysucceeds on some and fails on other grounds, order costs to be shared or ordereach party to bear its own costs. As the action has been only partially successful,the Court considers it fair in the circumstances of the case to order the Commissionto bear its own costs and to pay one-half of the applicant's costs and to order theapplicant to bear the other half of its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition)

hereby:

1. Annuls, as regards the applicant, Article 1 of Commission Decision94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of theEC Treaty (IV/C/33.833 Cartonboard) in so far as the date of thebeginning of the infringement alleged against it is stated to be prior toApril 1989;

2. Annuls, as regards the applicant, the eighth indent of Article 1 of Decision94/601;

3. Annuls, as regards the applicant, the first to fourth paragraphs of Article2 of Decision 94/601 save and except the following passages:

'The undertakings named in Article 1 shall forthwith bring the saidinfringement to an end, if they have not already done so. They shallhenceforth refrain in relation to their cartonboard activities from anyagreement or concerted practice which may have the same or a similarobject or effect, including any exchange of commercial information:

Any scheme for the exchange of general information to which theysubscribe, such as the Fides system or its successor, shall be so conductedas to exclude any information from which the behaviour of individualproducers can be identified.;

4. Sets the amount of the fine imposed on the applicant by Article 3 ofDecision 94/601 at ECU 750 000;

5. Dismisses the application as regards the remaining claims;

6. Orders the Commission to bear its costs and to pay one-half of theapplicant's costs;

7. Orders the applicant to bear one-half of its own costs.

Vesterdorf Briët

Lindh

Potocki

Cooke

Delivered in open court in Luxembourg on 14 May 1998.

H. Jung

B. Vesterdorf

Registrar

President

Summary

Facts

II - 2

Procedure

II - 6

Forms of order sought

II - 7

The application for annulment of the Decision

II - 8

A The plea of infringement of the rights of the defence in that the Commission didnot identify the behaviour of individual producers in the statement of objectionsand in the Decision

II - 8

Arguments of the parties

II - 8

Findings of the Court

II - 10

B The plea of infringement of Article 190 of the Treaty

II - 12

Arguments of the parties

II - 12

Findings of the Court

II - 13

C The plea of infringement of Article 85 of the Treaty in that the Commissioncommitted a manifest error of appraisal in fact and in law

II - 14

Arguments of the parties

II - 14

The committees of the PG Paperboard

II - 14

The functions of the PC and the applicant's participation

II - 14

The functions of the JMC and the applicant's participation

II - 15

The functions of the Economic Committee and the applicant'sparticipation

II - 18

The price initiatives

II - 19

The 'price before tonnage policy

II - 21

The methods of circulating information

II - 23

The duration of the applicant's participation

II - 24

Findings of the Court

II - 24

1. Period from mid-1986 to April 1989

II - 24

(a) Applicant's participation in certain meetings of the PC

II - 25

(b) Applicant's participation in three meetings of the EconomicCommittee

II - 28

II - 30

(d) Conclusion regarding the period in question

II - 30

2. Period from April 1989 to April 1991

II - 31

(a) The applicant's participation in collusion on prices

II - 31

The applicant's participation in the Economic Committee meeting on 3October 1989

II - 35

The applicant's actual pricing behaviour

II - 36

Conclusion regarding the applicant's participation in collusion onprices

II - 37

(b) The applicant's participation in collusion on downtime

II - 38

II - 42

(d) Conclusion regarding the applicant's participation in an infringement ofArticle 85(1) of the Treaty during the period from April 1989 to April1991

II - 44

3. General conclusion regarding the plea

II - 44

D The plea of infringement of the rights of defence in that the Commission did notdisclose all relevant documents

II - 45

Arguments of the parties

II - 45

Findings of the Court

II - 46

The application for annulment of Article 2 of the Decision

II - 46

Arguments of the parties

II - 46

Findings of the Court

II - 48

The application for annulment or reduction of the fine

II - 52

1. The pleas concerning matters dealt with in the course of common argument

II - 52

2. The plea of infringement of the principle of proportionality

II - 53

Arguments of the parties

II - 53

indings of the Court

II - 54

The plea alleging infringement of the principle against self-incrimination

II - 56

Arguments of the parties

II - 56

Findings of the Court

II - 58

Incorrect assessment of the criteria for determining the fine

II - 59

Arguments of the parties

II - 59

Findings of the Court

II - 59

Costs

II - 61

1: Language of the case: English.

ECR