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

14 May 1998 (1)

(Competition — Article 85(1) of the EC Treaty — Fines — Determination of theamount — Mitigating circumstances — Statement of reasons)

In Case T-319/94,

Fiskeby Board AB, a company incorporated under Swedish law, established atNorrköping, Sweden, represented by Carl Wetter, of the Stockholm Bar, andChristopher Vajda, Barrister, of the Bar of England and Wales, with an address forservice in Luxembourg at the Chambers of Elvinger, Hoss & Preussen, 15 Côted'Eich,

applicant,

v

Commission of the European Communities, represented by Julian Curall andRichard Lyal, of its Legal Service, acting as Agents, with an address for service atthe office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre,Kirchberg,

defendant,

APPLICATION for a reduction in the fine imposed on the applicant byCommission Decision 94/601/EC of 13 July 1994 relating to a proceeding underArticle 85 of the EC Treaty (IV/C/33.833 — Cartonboard, OJ 1994 L 243, p. 1),

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.

    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.

3.

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

4.

    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.

5.

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

6.

    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.

7.

    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.

8.

    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:

...

(vi)        Fiskeby Board AB, a fine of ECU 1 000 000;

...‘

9.

    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.

10.

    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).

11.

    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.

12.

    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.

13.

    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 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.

14.

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

15.

    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.

16.

    The Decision states that the applicant, Fiskeby Board AB, was acquired on 1 June1990 by a US corporation, Manville Forest Products. Upon instructions from itsnew parent company, the applicant ceased to participate in meetings of the JMCwith effect from June 1990. However, it did not withdraw from the PC or from theNordic Paperboard Institute, the Scandinavian producers' trade association(hereinafter 'NPI‘).

17.

    The Decision also states that after June 1990 the applicant continued to receiveand act upon information from other producers as to the price increases to beapplied (point 163, first paragraph, of the Decision).

18.

    For those reasons, Article 1 of the Decision states that the applicant participatedin the cartel throughout the period covered by the Decision, namely from mid-1986until April 1991.

Procedure

19.

    The applicant brought this action by application lodged at the Registry of the Courton 10 October 1994.

20.

    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-311/94, T-317/94, 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).

21.

    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 v Commission, not published in the ECR).

22.

    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).

23.

    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).

24.

    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 apossible 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.

25.

    By order of 4 June 1997 the President of the Third Chamber, ExtendedComposition, of the Court of First Instance, in view of the connection between theabovementioned cases, joined them for the purposes of the oral procedure inaccordance with Article 50 of the Rules of Procedure, and allowed an applicationfor confidential treatment submitted by the applicant in Case T-334/94.

26.

    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.

27.

    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 certain

written questions and to produce certain documents. The parties complied withthose requests.

28.

    The parties in the cases referred to in paragraph 24 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

29.

    The applicant claims that the Court should:

—    reduce substantially the fine imposed on it;

—    order the Commission to pay the costs.

30.

    The Commission contends that the Court should:

—    reject the application as unfounded;

—    order the applicant to pay the costs.

Substance

The plea that in determining the amount of the fine the Commission should havetaken account of fluctuations in the applicant's turnover on the Communitycartonboard market during the period of the infringement

Arguments of the parties

31.

    The applicant states that where the turnover in the products concerned by aninfringement has fluctuated during the period covered by the infringement, theCommission must, if it is to make a proper assessment of the scale of theinfringement, look at the turnover throughout the period in question. TheCommission, however, took into consideration only turnover on the Communitycartonboard market in 1990 when determining the amount of the fine.

32.

    In its case, it is unfair to take only that turnover figure into account because it isnot representative of its turnover during the period of the infringement, to wit mid-1986 to April 1991. Its turnover on the Community cartonboard market in 1990was four times higher than its average turnover in 1987 and 1988 and more than80% higher than its average turnover over the period 1987-1990. The low turnoverin 1987 and 1988 was the result of the rebuilding of its one and only cartonboardmachine.

33.

    The mere fact that 1990 was the last full year of the infringement did not meanthat the Commission could ignore events before that year. The Commission shouldhave taken account of the applicant's individual circumstances, as the addressee ofa decision imposing a fine (Case 45/69 Boehringer v Commission [1970] ECR 769,paragraph 55). Likewise, it should have taken account of the fact that theapplicant had left the market in 1987 and 1988 owing to the rebuilding of its onlycartonboard machine. The Commission accepted that a choice other than that ofthe turnover in the last full year of the infringement may be made in specialcircumstances, such as where an undertaking has left the market.

34.

    The special features of the applicant's situation, namely the abnormal and severedrop in its turnover, should have been taken into consideration all the more,because, according to the case-law of the Court of First Instance, the turnover inthe sector concerned gives an indication of the scale of the infringement (see CaseT-77/92 Parker Pen v Commission [1994] ECR II-549, paragraph 94) and of theeconomic power and influence on the market of the undertaking in question.

35.

    Lastly, in Case T-142/89 Boël v Commission [1995] ECR II-867 the Court uphelda similar plea on the ground that the applicant had shown that its turnover in thereference year chosen by the Commission was higher than that achieved over thewhole of the period of the infringement.

36.

    The Commission states that by taking 1990 as a basis, it deliberately sought toevaluate the economic power of the undertakings in the last full year of theinfringement, in order to take account of any benefit in terms of increased turnoverwhich the undertakings participating in the infringement might have derived fromit. Referring to the judgment of the Court in Joined Cases T-39/92 and T-40/92 CBand Europay v Commission [1994] ECR II-49, it contends that this consideration ispart of any policy of deterrence.

37.

    Fiskeby's production in 1987 and 1988 did not reflect its true economic powerbecause it was engaged in rebuilding its production machinery.

38.

    In any event, in order to avoid any discrimination, fines should be calculated on auniform basis, save where there are special circumstances, such as where anundertaking has previously left the market.

Findings of the Court

39.

    It is not disputed that the amount of the individual fines was determined by takinginto account the 1990 turnover on the Community cartonboard market of each ofthe undertakings addressed by the Decision.

40.

    The Commission rightly chose that turnover figure as one of the elementssystematically taken into consideration in order to determine the amount of thefines.

41.

    As 1990 was the last full year of the infringement found in Article 1 of theDecision, reference to the turnover in that year allowed the Commission to assessthe size and economic power of each undertaking in the cartonboard sector and thescale of the infringement committed by each of them, those factors being relevantto an assessment of the gravity of the infringement (Joined Cases 100/80, 101/80,102/80 and 103/80 Musique Diffusion Française and Others v Commission [1983]ECR 1825, paragraphs 120 and 121).

42.

    To the extent to which reliance is to be placed on the turnover of the undertakingsinvolved in the same infringement for the purpose of determining the proportionsbetween the fine to be imposed, the period to be taken into consideration must beascertained in such a way that the resulting turnovers are as comparable as possible(ibidem, paragraph 122). Consequently, an individual undertaking cannot compelthe Commission to rely, in its case, upon a period different from that used for theother undertakings, unless it proves that, for reasons peculiar to it, its turnover inthe latter period does not reflect its true size and economic power or the scale ofthe infringement which it committed.

43.

    In the present case, there is nothing to support the conclusion that in theapplicant's specific case the Commission should have relied upon turnover in aperiod other than the period actually chosen, which, in the applicant's case too, wasthe last full year of the infringement it was found to have committed.

44.

    Although the applicant has explained that it was rebuilding its productionmachinery in the course of 1987 and 1988, the effect of which was to cause asubstantial fall in its turnover in those two years, it is nevertheless the case that itwas foreseeable and even certain that it was a temporary fall and that, oncerebuilding had been completed, turnover would again reach a normal level,comparable to, and even higher than, turnover in the year preceding the beginningof the rebuilding work.

45.

    Consequently, the Commission was entitled to take the view that the applicant'sturnover in the reference year (1990) gave an indication of its true size andeconomic power in the cartonboard sector and of the scale of the infringementwhich it had committed. By contrast, it would have made an incorrect assessmentof the applicant's situation and the scale of the infringement, if, as the applicantrequests, it had taken into account the applicant's average turnover during the1987-1990 period, that figure being abnormally low.

46.

    This case is therefore different from that in Boël v Commission, cited above, onwhich the applicant relies. In the Boël case, the applicant had submitted, without

having been contradicted by the Commission, that its turnover in the reference yearchosen was abnormally high, especially by contrast with the turnover of the otheraddressees of the Decision. In those circumstances, the Court of First Instance wasentitled to take the view that the turnover upon which the Commission had reliedfor the purpose of determining the amount of the fine did not give an indicationof the applicant's true size and economic power and of the scale of theinfringement which it had committed (paragraph 133 of the judgment).

47.

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

Existence of mitigating circumstances

48.

    The applicant submits that there is a set of circumstances which should have beentaken into account in mitigation when the amount of its fine was determined. TheCourt will consider each of those circumstances separately.

The Commission should have taken account of the passive and minor role playedby the applicant

— Arguments of the parties

49.

    The applicant submits that the level of the fine imposed on it shows that theCommission failed to take account of its minor and passive role in the collusivearrangements.

50.

    It states that it never took part in meetings of the PWG, the instigator andsubsequently the driving force behind the cartel, whose function was to 'assist inthe introduction of discipline in the market‘ and included 'discussions andconcertation on markets, market shares, prices, price increases and capacity‘ (point37 of the Decision). It last attended a meeting of the JMC and a meeting of thePaper Agents Association (see point 94 et seq. of the Decision) in April 1990, andleft the JMC of its own accord in June 1990, that is to say, approximately fivemonths before the BPIF lodged its complaint with the Commission (November1990).

51.

    Since in reality it was out of the market in 1987 and 1988, it had little interest intaking an active part in the JMC. It does not dispute that, after it left the JMC,it received price information from other manufacturers in autumn 1990, or that itused that information (point 163 of the Decision). However, that aspect concernsthe duration of the infringement rather than the role which it played in the cartel.

52.

    Its participation in the JMC, in the price increases and in the announcements ofthose increases was minor and passive, since it never proposed price increases.

53.

    According to point 51 of the Decision, it was a key concern of the cartel to controlvolume in such a way as to maintain a near balance between production andconsumption. However, the applicant never limited its production as the result ofits participation in the cartel.

54.

    In that context, as regards more particularly the Commission's assertion that asingle infringement was found consisting of a 'common industry plan to restrictcompetition‘ involving, inter alia, an understanding on market shares and concertedmeasures to control supply of the product, the applicant accepts that it played aminor role in the activities in question by providing information in the JMC whichcould be used by members of the PWG to limit production. However, volumecontrol became an issue of practical importance only from the beginning of 1990,after the industry had ceased operating at full capacity.

55.

    The applicant concludes that it could have been a party to an infringement relatingto the control of supply for only four years at most (mid-1986 to April 1990) andthat the information was of practical significance for only a few months in early1990.

56.

    The Commission states that it found a single infringement consisting of a 'commonindustry plan to restrict competition‘, involving agreed price increases, anunderstanding on market shares, concerted measures to control supply of theproduct and the exchange of commercial information to support those policies. Allthe addressees of the Decision committed that entire infringement, even if they didnot have to carry out every action which the scheme required. Consequently, theapplicant cannot ask to have its fine reduced on the ground that it did not takesteps to limit its own production.

57.

    The measures to restrict production were actually applied, for the benefit of all, bythe large producers in the PWG. They were intended to reinforce the pricingmeasures, in which the small producers were directly involved.

58.

    The applicant's contribution to volume control is confirmed by its knowledge andacceptance of the PWG's market-sharing policy, by the fact that it providedinformation to Fides about its production, sales, and utilisation capacity, and by thefact that it participated in discussions on order backlogs in the JMC.

59.

    The Commission acknowledges that the applicant was not one of the 'ringleaders‘of the cartel. However, that does not automatically mean that its role was minorand passive. The applicant sat in the PC, the JMC and the Economic Committee,cooperated with the PWG as a member of the JMC, and participated in the priceinitiatives in the same way as the others.

— Findings of the Court

60.

    The Commission states that in order to determine the fine imposed on eachaddressee of the Decision, it took into account, inter alia, the role played by eachof them in the collusive arrangements (point 169, first paragraph, first indent, of theDecision). Moreover, in point 170 of the Decision it explains that it was theundertakings which took part in the PWG meetings which were considered to bethe 'ringleaders‘ of the cartel, whereas the other undertakings were considered tobe 'ordinary members‘. Lastly, there is no dispute that the basic rate of 9 or 7.5%of the turnover on the Community cartonboard market in 1990 of each addresseeof the Decision was applied respectively for the purpose of determining the fine tobe imposed on the 'ringleaders‘ of the cartel and its 'ordinary members‘.

61.

    The applicant made it clear at the hearing that it does not dispute that itparticipated in the infringement found in Article 1 of the Decision. It is merelycontesting the Commission's assessment of the role which it is alleged to haveplayed in that infringement.

62.

    Moreover, the applicant does not dispute the description given of the role of eachbody in the PG Paperboard. In that regard, according to the Decision, the PWGwas the body in which the principal decisions with an anti-competitive object wereadopted. Furthermore, although the Commission considers that all theundertakings referred to in Article 1 of the Decision must be considered to haveparticipated in all the constituent elements of the infringement set out in thatarticle, it is apparent from the Decision that the collusion on maintaining themarket shares of the main producers at constant levels, subject to occasionaladjustments, concerned only the market shares of undertakings which participatedin the PWG meetings (points 51 to 60 of the Decision). Lastly, the Commissionaccepts that as regards collusion on downtime, 'it seems again that it was the mainproducers who took upon themselves the burden of reducing output so as tomaintain price levels‘ (point 71, second paragraph, of the Decision).

63.

    In the light of those factors, the applicant's objection that the Commission did notcorrectly assess its role in the cartel cannot be upheld.

64.

    First, the applicant was not considered to be one of the 'ringleaders‘ of the cartel. The Commission therefore took into account the applicant's non-participation inmeetings of the PWG.

65.

    Second, the Decision explains that the undertakings which did not participate in themeetings of the PWG were informed of its decisions at meetings of the JMC andthat that body constituted the main centre both for preparation of decisionsadopted by the PWG and for detailed discussions on the implementation of thosedecisions (see, in particular, points 44 to 48 of the Decision).

66.

    The applicant admits that it participated in meetings of the JMC and in those ofits predecessor, the Marketing Committee, from 1983 to April 1990, but it wasunable to supply precise information regarding the meetings which it had attended

prior to the beginning of 1989 (see Table 4 annexed to the Decision). As regardsthe JMC meetings held from the beginning of 1989 until April 1990, for whichspecific information has been supplied, the applicant admits that it participated infive of the nine JMC meetings (ibidem). Lastly, it admits that on a few occasionsa representative of the NPI gave it information over the telephone about mattersdealt with at JMC meetings at which it was not represented (point 46, firstparagraph, of the Decision).

67.

    In those circumstances, as the applicant does not dispute either the Decision'sdescription of the JMC's functions or its own participation in the infringementfound in Article 1 of the Decision, it cannot validly claim that the Commissionshould have taken the view that it played a less significant role in the cartel thanthe other undertakings regarded as 'ordinary members‘.

68.

    That finding is not undermined by the fact that the applicant did not participate inJMC meetings after April 1990.

69.

    The applicant does not dispute the assertion in point 163, first paragraph, of theDecision that even if it had ceased attending JMC meetings, it continued to receiveand act upon information from other producers as to the price increases to beapplied. Although it is indeed apparent from the Decision that, as the applicantstates, it was only in 1990 that market conditions were such that the producersconsidered it necessary to take downtime in order to maintain price levels (point70), it is also apparent from the Decision that the question of capacity utilisationand downtime was examined in the JMC, in the context of preparation forconcerted price increases, even before the date on which downtime was actuallyapplied (see, in particular, point 69 of the Decision).

70.

    Since the applicant participated in the meetings of the JMC before April 1990, itcould not have been unaware of the more general collusive background to theinformation which it obtained and acted upon after April 1990 in order todetermine its own pricing policy. The mere fact that downtime may have actuallybeen taken only after the date on which the applicant last attended a meeting ofthe JMC is therefore irrelevant to the assessment of its role in the infringement.

71.

    On the basis of those considerations, the applicant's objection cannot be upheld.

The losses recorded by the applicant should have been taken into account by theCommission as a mitigating circumstance

— Arguments of the parties

72.

    The applicant contends that the Commission should have taken the view that thelosses which it suffered during the period of the infringement constituted mitigating

circumstances. That is confirmed by Commission Decision 86/398/EEC of 23 April1986 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.149 —Polypropylene) (OJ 1986 L 230, p. 1, 'the Polypropylene decision‘). TheCommission also wrongly took the view that the applicant had made a profit fromthe infringement.

73.

    The Commission observes that the applicant does not suggest that the sector wasunprofitable during the period in question. The absence of major difficultiesencountered in that sector during that period is, however, a factor whichdistinguishes this situation from that considered in the Polypropylene decision.

74.

    In any event, the Commission is not automatically obliged to take losses intoaccount by way of mitigation, because to do so could be considered contrary to thepurpose of prohibiting collusion, particularly where collusion has taken place in anindustry in difficulty.

— Findings of the Court

75.

    The applicant does not submit that the cartonboard sector was in a crisis during theperiod covered by the Decision, but solely that the Commission should have takenits loss-making situation into consideration as a mitigating circumstance.

76.

    However, as the Court of Justice has already held, recognition of such an obligationwould be tantamount to conferring an unjustified competitive advantage onundertakings least well adapted to the conditions of the market (Joined Cases 96/82to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ v Commission [1983] ECR 3369,paragraph 55.

77.

    Consequently, the complaint must be rejected.

The compliance programme introduced by the applicant should have been takeninto account by the Commission as a mitigating circumstance

— Arguments of the parties

78.

    The applicant submits that the fact that it has taken measures to avoid freshinfringements, namely by introducing a compliance programme and ceasing tosupply information to CEPI-Cartonboard, the successor of the fiduciary companyFides for the processing of information, until the position regarding the exchangeof information has been clarified, should also be taken into account in mitigation.

79.

    It rejects the Commission's argument that its compliance programme is merely partof its policy of not contesting the facts after it received the statement of objections,for which an allowance has already been made. Its attitude towards the

Commission in regard to the past infringement is separate from its introduction ofa compliance programme to prevent a future infringement.

80.

    The Commission accepts that, depending upon the facts of the case, a complianceprogramme may constitute a mitigating circumstance (Parker Pen v Commission,cited above, paragraph 93). In the present case, the compliance programmeintroduced by the applicant was part of its policy of not contesting the allegationsof fact in the statement of objections, for which an allowance has already beenmade. Moreover, that programme had no effect on the infringement itself or onthe applicant's participation in it.

— Finding of the Court

81.

    The gravity of infringements falls to be determined by reference to a number offactors including, in particular, the specific circumstances and context of the caseand the deterrent character of fines; moreover, no binding or exhaustive list of thecriteria which must be applied has been drawn up (order of 25 March 1996 in CaseC-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 54).

82.

    Consequently, although the implementation of a compliance programmedemonstrates the intention of the undertaking in question to prevent futureinfringements and thus better enables the Commission to accomplish its task ofapplying the principles laid down by the Treaty in competition matters and ofinfluencing undertakings in that direction, the mere fact that in certain of itsprevious decisions the Commission took the implementation of a complianceprogramme into consideration as a mitigating factor does not mean that it isobliged to act in the same manner in this case.

83.

    The Commission was therefore entitled to take the view that in the present caseit should treat as mitigation only conduct of the undertakings which enabled it toprove the infringement in question more easily. Consequently, since the applicantreceived a reduction of one-third in the amount of the fine on account of itscooperation with the Commission during the administrative procedure, theCommission cannot be criticised for not having granted the applicant a furtherreduction in the fine imposed on it.

84.

    Finally, while it is important that the applicant should take steps to prevent freshinfringements of Community competition law from being committed by membersof its staff in the future, that action does not alter the fact that an infringement hasbeen found to have been committed in this case (Case T-7/89 Hercules Chemicalsv Commission [1991] ECR II-1711, paragraph 357).

85.

    This objection must therefore also be rejected.

Infringement of the principle of equal treatment in that the fine imposed on Fiskebyis too high in comparison with that imposed on the 'ringleaders‘

Arguments of the parties

86.

    The applicant states that the fine of ECU 1 000 000 imposed on it corresponds to5% of its turnover on the Community cartonboard market in 1990.

87.

    It considers that this fine is far too high in comparison with the fine imposed on the'ringleaders‘ who did not cooperate, namely Finnboard, Mayr-Melnhof and MoDo(an amount corresponding to 9% of their Community turnover). As theCommission points out, those undertakings must bear a special responsibility forthe infringement. The percentages of the fines should correctly reflect therespective degrees of participation in the cartel by the ringleaders and by thecompanies which played a minor role. They do not do so in the present case, sinceringleaders who cooperated to the same extent as the applicant were fined only anamount corresponding to 6% of their turnover.

88.

    The fine imposed on Stora corresponds to merely 3% of its turnover on theCommunity cartonboard market in 1990. The applicant considers that it is unjustthat its own fine was set at a level above that of the fine imposed on Stora.

89.

    Lastly, the fine imposed on the applicant is also disproportionate to those imposedon two of the ringleaders, KNP and Weig.

90.

    The Commission considers that the applicant has no basis for claiming a reductionin the fine. The increase in the fine for the ringleaders (basic rate of 9% insteadof 7.5%) is broadly in line with what has been accepted by the Court of Justice andthe Court of First Instance in other cases.

91.

    Moreover, the fine imposed on the applicant, fixed at 5% of its turnover on theground that it had not contested the principal factual allegations in the statementof objections, corresponds in relative terms to just over half of the fine imposed onringleaders which had not cooperated with the Commission.

92.

    Owing to the special circumstances of their participation in the PWG, an initial ratebelow 9% was adopted for the ringleaders KNP and Weig. The rate of KNP's finewas then reduced on account of its cooperation, and then amounted to between 5and 6% of its Community turnover for cartonboard in 1990.

93.

    Finally, Stora's conduct, much more useful to the Commission than the applicant's,justified the very considerable reduction in the fine. Nor has that allowanceanything to do with the fact that Stora was a ringleader, as it proved by the caseof Rena, an ordinary member, whose fine was also reduced by two-thirds.

Findings of the Court

94.

    As the Court has already noted, the fines were calculated on the basis of theturnover on the Community cartonboard market in 1990 achieved by each of theaddressees of the Decision and basic rates of 9 and 7.5% of that turnover werethen applied in order to determine the fine to be imposed on the 'ringleaders‘ ofthe cartel and on its 'ordinary members‘ respectively. There is, moreover, nodispute that Rena and Stora received a two-thirds reduction in their fines in viewof their active cooperation with the Commission from the outset, whereas certainother undertakings, including the applicant, received a one-third reduction in theirfines in view of the fact that in their replies to the statement of objections they didnot contest the essential factual allegations relied upon by the Commission againstthem (see points 171 and 172 of the Decision).

95.

    In accordance with the above criteria, the fine imposed on the applicant thereforecorresponds to 7.5% of its turnover on the Community cartonboard market in 1990,that rate then being reduced by one-third because in its reply to the statement ofobjections the applicant did not contest the essential factual allegations relied uponby the Commission against it.

96.

    Before considering whether that level of fine is excessive in comparison with thatof the fines imposed on the undertakings considered to be the cartel 'ringleaders‘,the Court observes that, as it has already held, the Commission was entitledsystematically to take into account the turnover on the Community cartonboardmarket in 1990 of each of the undertakings addressed by the Decision.

97.

    As regards, first, the question whether the fine imposed on the applicant isexcessive in comparison with the fines imposed on the 'ringleaders‘ which did notreceive any reduction in their fines for cooperation with the Commission, theCommission rightly considered that undertakings which participated in the meetingsof the PWG had to bear a special responsibility for the infringement (point 170 ofthe Decision). It then correctly evaluated the gravity of the infringementcommitted by the 'ringleaders‘ of the cartel and by 'ordinary members‘respectively, by adopting, for the purpose of calculating the fines imposed on thosetwo categories of undertakings, basic rates of 9 and 7.5% of relevant turnover.

98.

    In that context, it must be emphasised that the applicant has not disputed thedescription of the infringement in the Decision or advanced specific evidence tosupport its claim that the basic rates adopted for the purpose of calculating thefines do not correctly reflect the special responsibility to be borne by theundertakings which participated in the meetings of the PWG.

99.

    Second, there is no basis for criticising the Commission's decision to grantreductions in the amount of the fines originally calculated. Consequently, since theapplicant's fine was reduced by one-third on account of its cooperation with the

Commission, there was no discrimination against it in comparison with the'ringleaders‘ who, according to point 172 of the Decision, received an identicalreduction. In any event, the applicant has not submitted that its cooperation withthe Commission was more significant than the other undertakings which receiveda one-third reduction in their fines.

100.

    Third, as regards the comparison made by the applicant with the treatmentaccorded to KNP and Weig, it is apparent from a table supplied by theCommission in reply to a written question from the Court that the level of the finesimposed on those two undertakings is above that of the fine imposed on theapplicant but that their fines were calculated on the basis of a rate below the basicrate of 9% applied to the other undertakings which participated in the PWGmeetings.

101.

    However, the Decision provides sufficient explanation as to why the basic rate of9% adopted for the ringleaders of the cartel was not applied to KNP and to Weig. Thus, according to point 170, second paragraph, of the Decision, KNP wasconsidered to be one of the 'ringleaders‘ of the cartel only during the period inwhich it participated in PWG meetings, that is to say, for a shorter period than thatof its participation in the cartel. Moreover, the Commission states that it took intoaccount the fact that, although Weig was a member of the PWG, it did not seemto have played an important role in the determination of the policy of the cartel(point 170, third paragraph). There is therefore no foundation for the applicant'sclaim that the fine imposed on it is disproportionate to those imposed on KNP andWeig.

102.

    Fourth and last, Stora supplied the Commission with statements containing a highlydetailed description of the nature and object of the infringement, the operation ofthe various bodies of the PG Paperboard, and the participation of the variousproducers in the infringement. Through those statements, Stora suppliedinformation well in excess of that which the Commission may require to be suppliedunder Article 11 of Regulation No 17. Although the Commission states in theDecision that it obtained evidence corroborating the information contained inStora's statements (points 112 and 113 of the Decision), it is clear that Stora'sstatements constituted the principal evidence of the existence of the infringement. Without those statements, it would therefore have been, at the very least, muchmore difficult for the Commission to establish or put an end to the infringementwith which the Decision is concerned.

103.

    In those circumstances, the Commission, by reducing by two-thirds the fine imposedon Stora, did not overstep the limits of its discretion when determining the amountof fines. The applicant cannot therefore validly claim that the fine imposed on itis excessive in relation to that imposed on Stora.

104.

    In the light of the foregoing, this plea must be rejected.

The alternative plea: infringement of Article 190 of the Treaty

Arguments of the parties

105.

    The applicant considers that the statement of reasons in the Decision is defective,because it does not allow the applicant properly to ascertain the circumstanceswhich led the Commission to impose a fine of ECU 1 000 000 on it. The Decisiondoes not therefore satisfy the requirements laid down by the Court of Justice (Case24/62 Germany v Commission [1963] ECR 63, at p. 69, and Case C-358/90Compagnia Italiana Alcool v Commission [1992] ECR I-2457, paragraph 40).

106.

    Although the matters disclosed for the first time at a press conference held by amember of the Commission on 13 July 1994 were clearly extremely importantfactors in the reasoning adopted by the Commission when it determined the levelof the fines, they are not set out in the Decision.

107.

    The Commission did not indicate, as required by the above cases, the principalissues of fact upon which its decision was based and it failed to disclose itsreasoning, which it must do in order to make the persons concerned aware of thereasons for the measure adopted and to enable them to defend their rights and theCourt to exercise its supervisory jurisdiction. Thus, the Decision does not indicatethe reference year for the turnover chosen as the basis for calculating fines, thepercentage rate of the fine imposed on the ringleaders and on the otherundertakings, or the amount of the reduction granted to Stora and to the applicant.

108.

    More particularly, the applicant disputes the Commission's claim that indicationshad been given to it that 1990 was the year chosen for the purpose of calculatingthe fine. The first document to which the Commission refers, a letter dated 16 July1991 requesting information under Article 11 of Regulation No 17, contains theCommission's request to communicate the turnover figure for 'each of the past fivecalendar years‘. As regards the turnover figures indicated in the individualparticulars annexed to the statement of objections, they relate to four years (from1987 to 1990). Lastly, the passage in the Decision to which the Commission refers(point 168, third indent) does not give any hint that the reference year chosen was1990.

109.

    Even if the Commission intended to rely on the general criteria set out in point 169of the Decision in order to justify the fine imposed on the applicant, the statementof reasons in that point would therefore be inadequate. The addressees whichrelied on 'mitigating factors‘ (a concept which the Commission did not define)could not know which of those factors were ultimately taken into account. TheCommission cannot justify its failure to consider those mitigating factors by claimingthat they do not constitute 'real mitigation‘.

110.

    Furthermore, the Commission should have explained how the general criteriaadopted for all the undertakings in order to determine the amount of the fine wereto be applied to each undertaking individually (see, to that effect, Case T-2/89Petrofina v Commission [1991] ECR II-1087). That is necessary because theCommission has an obligation to explain which mitigating circumstances it is takinginto account when it adopts a decision on a fine imposed on only one undertaking.

111.

    Lastly, the Commission's obligation to provide reasons for its decision was all themore important because of the high level of the fine and, as is the view of theEuropean Commission on Human Rights in Société Stenuit v France (Opinion No11598/85, Report of 30 May 1991, Series A, No 232-A), because competitionproceedings liable to result in a fine are in the nature of criminal proceedings.

112.

    The Commission contends that the Decision contains an adequate statement ofreasons.

113.

    As regards its decision to choose turnover in 1990, reference was made to thatturnover in several documents, namely in a letter sent to the applicant in 1991under Article 11 of Regulation No 17 and in the individual particulars annexed tothe statement of objections. Furthermore, the choice of reference year could bededuced from the third indent of point 168 of the Decision, which gives the valueof the Community cartonboard market. The Decision therefore closely resemblesthe Polypropylene decision, which the Court of First Instance upheld in all essentialrespects.

114.

    In any event, the Commission does not have to indicate the year taken intoconsideration in its decisions imposing fines. Nor has that practice been criticisedby the Community judicature.

115.

    As regards the other supporting reasons contained in the Decision, the Commissionrefers to the grounds of that decision for its explanation of the concept of a singleinfringement and the lump sum fine resulting therefrom (in particular point 61 etseq. and point 129 et seq.) and the gravity of the infringement (points 167 and 168,and Case T-3/89 Atochem v Commission [1991] ECR II-1177, paragraph 227), andfor its consideration of the individual roles of the undertakings which participatedin the infringement (points 171 and 172).

116.

    The mere fact that the Commissioner responsible for competition policy addedsome additional details at the press conference on 13 July 1994 does not mean thatthe Decision does not contain an adequate statement of reasons. The Court shouldnot take those details into account when reviewing the Decision.

117.

    Lastly, the Commission does not have to respond to every argument put forwardby each undertaking, only to the main arguments (Case 332/81 Michelin vCommission [1983] ECR 3461, paragraph 14, and Case 246/86 Belasco and Othersv Commission [1989] ECR 2117, paragraph 55). In this case it took into account

the real mitigating circumstances, stated in the Decision who benefited from them,including, particularly, the applicant (points 171 and 172 of the Decision), and tookthe view that there were neither other individual mitigating factors nor any factorsof general mitigation.

Findings of the Court

118.

    It is settled law that the purpose of the obligation to give reasons for an individualdecision is to enable the Community judicature to review the legality of the decisionand to provide the party concerned with an adequate indication as to whether thedecision is well founded or whether it may be vitiated by some defect enabling itsvalidity to be challenged; the scope of that obligation depends on the nature of theact in question and on the context in which it was adopted (see, inter alia, CaseT-49/95 Van Megen Sports v Commission [1996] ECR II-1799, paragraph 51).

119.

    As regards a decision which, as in this case, imposes fines on several undertakingsfor infringement of the Community competition rules, the scope of the obligationto state reasons must be assessed in the light of the fact that the gravity ofinfringements falls to be determined by reference to a number of factors including,in particular, the specific circumstances and context of the case and the deterrentcharacter of the fines; moreover, no binding or exhaustive list of criteria to beapplied has been drawn up (order in SPO and Others v Commission, cited above,paragraph 54).

120.

    Moreover, when fixing the amount of each fine, the Commission has a margin ofdiscretion and cannot be considered obliged to apply a precise mathematicalformula for that purpose (see, to the same effect, Case T-150/89 Martinelli vCommission [1995] ECR II-1165, paragraph 59).

121.

    In the Decision, the criteria taken into account in order to determine the generallevel of fines and the amount of individual fines are set out in points 168 and 169respectively. Moreover, as regards the individual fines, the Commission explainsin point 170 that the undertakings which participated in the meetings of the PWGwere, in principle, regarded as 'ringleaders‘ of the cartel, whereas the otherundertakings were regarded as 'ordinary members‘. Lastly, in points 171 and 172,it states that the amounts of fines imposed on Rena and Stora must be considerablyreduced in order to take account of their active cooperation with the Commission,and that eight other undertakings, including the applicant, were also to benefit froma reduction, to a lesser extent, owing to the fact that in their replies to thestatement of objections they did not contest the essential factual allegations onwhich the Commission based its objections.

122.

    In its written pleas to the Court and in its reply to a written question put by theCourt, the Commission explained that the fines were calculated on the basis of the

turnover 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 respectively on the undertakings considered to be thecartel 'ringleaders‘ and on the other undertakings. Finally, the Commission tookinto account any cooperation by undertakings during the procedure before it. Twoundertakings received a reduction of two-thirds of the amount of their fines on thatbasis, while other undertakings received a reduction of one-third.

123.

    Moreover, it is apparent from a table produced by the Commission containinginformation as to the fixing of the amount of each individual fine that, althoughthose fines were not determined by applying the abovementioned figures alone ina strictly mathematical way, those figures were, nevertheless, systematically takeninto account for the purposes of calculating the fines.

124.

    However, the Decision does not state that the fines were calculated on the basisof the turnover of each undertaking on the Community cartonboard market in1990. In that regard, contrary to the Commission's contention, neither the thirdindent of point 168 of the Decision, nor the individual particulars to the statementof objections nor the request for information to which the Commission refers giveany guidance as to the reference year adopted.

125.

    Furthermore, the basic rates of 9 and 7.5% applied to calculate the fines imposedon the undertakings considered to be 'ringleaders‘ and those considered to be'ordinary members‘ do not appear in the Decision either. Nor does it set out therates of reduction granted to Rena and Stora, on the one hand, and to eight otherundertakings, including the applicant, on the other.

126.

    In the present case, first, points 169 to 172 of the Decision, interpreted in the lightof the detailed statement in the Decision of the allegations of fact against each ofits addressees, contain a relevant and sufficient statement of the criteria taken intoaccount in order to determine the gravity and duration of the infringementcommitted by each of the undertakings in question (see, to the same effect, CaseT-2/89 Petrofina v Commission, cited above, point 264).

127.

    In that context, the Commission cannot be criticised for not having expresslyindicated in the Decision the reasons for its view that it did not have to take intoconsideration the alleged mitigating circumstances upon which the applicant relied. Although Article 190 of the Treaty requires the Commission to mention the factsforming the basis of the decision and the considerations which led it to adopt thedecision, it does not require the Commission to discuss all the points of fact andof law dealt with during the administrative procedure (see Michelin v Commission,cited above, points 14 and 15).

128.

    Second, where, as in the present case, the amount of each fine is determined onthe basis of the systematic application of certain precise figures, the indication inthe decision of each of those factors would permit undertakings better to assess

whether the Commission erred when fixing the amount of the individual fine andalso whether the amount of each individual fine is justified by reference to thegeneral criteria applied. In the present case, the indication in the Decision of thefactors in question, namely the reference turnover, the reference year, the basicrates adopted, and the rates of reduction in the amount of fines would not haveinvolved any implicit disclosure of the specific turnover of the addresseeundertakings, a disclosure which might have constituted an infringement of Article214 of the Treaty. As the Commission has itself stated, the final amount of eachindividual fine is not the result of a strictly mathematical application of thosefactors.

129.

    The Commission also accepted at the hearing that nothing prevented it fromindicating in the Decision the factors which had been systematically taken intoaccount and which had been divulged at a press conference held on the day onwhich that decision was adopted. In that regard, it is settled law that the reasonsfor a decision must appear in the actual body of the decision and that, save inexceptional circumstances, explanations given ex post facto cannot be taken intoaccount (see Case T-61/89 Dansk Pelsdyravlerforening v Commission [1992] ECRII-1931, paragraph 131, and, to the same effect, Case T-30/89 Hilti v Commission[1991] ECR II-1439, paragraph 136).

130.

    Despite those findings, the reasons explaining the setting of the amount of finesstated in points 167 to 172 of the Decision are at least as detailed as thoseprovided in the Commission's previous decisions on similar infringements. Although a plea alleging insufficient reasons concerns a matter of public interest,there had been no criticism by the Community judicature, at the moment when thedecision was adopted, as regards the Commission's practice concerning thestatement of reasons for fines imposed. It was only in the judgment of 6 April 1995in Case T-148/89 Tréfilunion v Commission [1995] ECR II-1063, paragraph 142, andin two other judgments given on the same day (Case T-147/89 Société Métallurgiquede Normandie v Commission [1995] ECR II-1057, summary publication, and CaseT-151/89 Société des Treillis et Panneaux Soudés v Commission [1995] ECR II-1191,summary publication) that the Court stressed for the first time that it is desirablefor undertakings to be able to ascertain in detail the method used for calculatingthe fine imposed without having to bring court proceedings against theCommission's decision in order to do so.

131.

    It follows that, when it finds in a decision that there has been an infringement ofthe competition rules and imposes fines on the undertakings participating in it, theCommission must, if it systematically took into account certain basic factors inorder to fix the amount of fines, set out those factors in the body of the decisionin order to enable the addressees of the decision to verify that the level of the fineis correct and to assess whether there has been any discrimination.

132.

    In the specific circumstances set out in paragraph 129 above, and having regard tothe fact that in the procedure before the Court the Commission showed itself tobe willing to supply any relevant information relating to the method of calculatingthe fines, the absence of specific grounds in the Decision regarding the method ofcalculation of the fines should not, in the present case, be regarded as constitutingan infringement of the duty to state reasons such as would justify the annulment inwhole or in part of the fines imposed.

133.

    Consequently, this plea cannot be upheld.

134.

    Having regard to all the foregoing, the application must be dismissed.

Costs

135.

    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the applicant has been unsuccessful, it must be ordered to bearthe costs, as sought by the Commission.

On those grounds,

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

hereby:

1.    Dismisses the application;

2.    Orders the applicant to pay the costs.

Vesterdorf                    Briët Lindh Potocki Cooke

Delivered in open court in Luxembourg on 14 May 1998.

H. Jung

B. Vesterdorf

Registrar

President

1: Language of the case: English.

ECR