JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber,
Extended Composition)
14 May 1998 (1)
(Competition Article 85(1) of the EC Treaty Liability for unlawful conduct
Fine Statement of reasons Mitigating circumstances)
In Case T-327/94,
SCA Holding Ltd, a company incorporated under the laws of England and Wales,
with its registered office at Aylesford, United Kingdom, represented by Guiseppe
Scasselati-Sforzolini, of the Bologna Bar, and Laurent Garzaniti, of the Brussels
Bar, with an address for service in Luxembourg at the Chambers of Elvinger, Hoss
& Preussen, 15 Côte d'Eich,
v
Commission of the European Communities, represented by Julian Currall and
Richard Lyal, of its Legal Service, acting as Agents, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner
Centre, Kirchberg,
APPLICATION for annulment of Commission Decision 94/601/EC relating to a
proceeding under Article 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, Extended
Composition),
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 place
from 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 a
proceeding 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 decision
of 26 July 1994 (C(94) 2135 final) (hereinafter 'the Decision). The Decision
imposed fines on 19 producers supplying cartonboard in the Community on the
ground that they had infringed Article 85(1) of the Treaty.
- 2.
- The product with which the Decision is concerned is cartonboard. The Decision
refers 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 white
top 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 the
Decision there was normally a price differential of approximately 30% between
those two products. High quality GC cartonboard is also used, but to a lesser
extent, 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 approximately
20% 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 the
United Kingdom, lodged an informal complaint with the Commission. It claimed
that the producers of cartonboard supplying the United Kingdom had introduced
a series of simultaneous and uniform price increases and requested the Commission
to investigate whether there had been an infringement of the Community
competition rules. In order to ensure that its initiative received publicity, the BPIF
issued a press release. The content of that press release was reported in the
specialised trade press in December 1990.
- 7.
- On 12 December 1990, the Fédération Française du Cartonnage also lodged an
informal complaint with the Commission, making allegations relating to the French
cartonboard 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) of
Council Regulation No 17 of 6 February 1962, First Regulation implementing
Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87,
hereinafter 'Regulation No 17), carried out simultaneous investigations without
prior notice at the premises of a number of undertakings and trade associations
operating in the cartonboard sector.
- 9.
- Following those investigations, the Commission sent requests for both information
and documents to all the addressees of the Decision pursuant to Article 11 of
Regulation No 17.
- 10.
- The evidence obtained from those investigations and requests for information and
documents led the Commission to conclude that from mid-1986 until at least (in
most cases) April 1991 the undertakings concerned had participated in an
infringement of Article 85(1) of the Treaty.
- 11.
- The Commission therefore decided to initiate a proceeding under Article 85 of the
Treaty. By letter of 21 December 1992 it served a statement of objections on each
of the undertakings concerned. All the addressees submitted written replies. Nine
undertakings requested an oral hearing. A hearing was held on 7, 8 and 9 June
1993.
- 12.
- At the end of that procedure the Commission adopted the Decision, which includes
the 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 Papierfabrieken
NV), 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), Stora
Kopparbergs Bergslags AB, Enso Española SA (formerly Tampella Española SA)
and Moritz J. Weig GmbH & Co KG have infringed Article 85(1) of the EC Treaty
by participating,
in the case of Buchmann and Rena from about March 1988 until at least
the end of 1990,
in the case of Enso Española, from at least March 1988 until at least the
end 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 the
suppliers of cartonboard in the Community
met regularly in a series of secret and institutionalised meetings to discuss
and agree a common industry plan to restrict competition,
agreed regular price increases for each grade of the product in each
national currency,
planned and implemented simultaneous and uniform price increases
throughout 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 supply
of the product in the Community in order to ensure the implementation of
the said concerted price rises,
exchanged commercial information on deliveries, prices, plant standstills,
order backlogs and machine utilisation rates in support of the above
measures.
...
Article 3
The following fines are hereby imposed on the undertakings named herein in
respect of the infringement found in Article 1:
...
(xvi) SCA Holding Ltd, a fine of ECU 2 200 000;
...
- 13.
- According to the Decision, the infringement took place within a body known as the
'Product Group Paperboard (hereinafter 'the PG Paperboard), which comprised
several groups or committees.
- 14.
- In mid-1986 a group entitled the 'Presidents Working Group (hereinafter 'the
PWG) was established within that body. This group brought together senior
representatives of the main suppliers of cartonboard in the Community (some eight
suppliers).
- 15.
- The PWG's activities consisted, in particular, in discussion and collaboration
regarding markets, market shares, prices and capacities. In particular, it took broad
decisions 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 which
almost all the managing directors of the undertakings in question participated
(more or less regularly). The PC met twice each year during the period in
question.
- 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, price
increases could be put into effect and, on the other, to prescribe the methods of
implementation for the price initiatives decided by the PWG, country-by-country
and for the major customers, in order to achieve a system of equivalent prices in
Europe.
- 18.
- Lastly, the Economic Committee discussed, inter alia, price movements in national
markets 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 Economic
Committee was made up of marketing managers of most of the undertakings in
question and met several times a year.
- 19.
- According to the Decision, the Commission also took the view that the activities of
the PG Paperboard were supported by an information exchange organised by Fides,
a secretarial company, whose registered office is in Zurich, Switzerland. The
Decision states that most of the members of the PG Paperboard sent periodic
reports on orders, production, sales and capacity utilisation to Fides. Under the
Fides system, those reports were collated and the aggregated data were sent to the
participants.
- 20.
- Throughout the period of the infringement Reed Paper & Board Ltd ('Reed
P&B) owned Colthrop Mill ('Colthrop).
- 21.
- Until July 1988 Reed P&B was a subsidiary of Reed International plc. In July
1988, a management buy-out of several companies of the Reed International group
resulted in the formation of Reedpack Ltd ('Reedpack) and the acquisition of
Reed P&B by Reedpack.
- 22.
- In July 1990, the Swedish group, Svenska Cellulosa Aktiebolag ('SCA) acquired
Reedpack and, consequently, Reed P&B and several factories, including Colthrop.
Reed P&B first changed its name on 1 February 1991 to SCA Aylesford Ltd ('SCA
Aylesford) and then on 4 February 1992 to SCA Holding Ltd ('SCA Holding).
- 23.
- In May 1991 Colthrop was sold to the Field Group Ltd, which resold it in October
1991 to Mayr-Melnhof AG. At the date of the latter transaction, Colthrop had
already been incorporated as a limited company under the name Colthrop Board
Mill Ltd.
- 24.
- According to the Decision, Reed P&B participated in the infringement in question,
in particular by participating in certain meetings of the JMC and of the PC.
Moreover, as SCA Holding is merely another name for SCA Aylesford and Reed
P&B and they are therefore merely one and the same entity, the Commission
considered that the Decision should be addressed to SCA Holding (point 155 et
seq. of the Decision).
Procedure
- 25.
- The applicant brought this action by application lodged at the Registry of the Court
on 12 October 1994.
- 26.
- Sixteen of the eighteen other undertakings held to be responsible for the
infringement 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-319/94,
T-334/94, T-337/94, T-338/94, T-347/94, T-348/94, T-352/94 and T-354/94).
- 27.
- The applicant in Case T-301/94, Laakmann Karton GmbH, withdrew its action by
letter lodged at the Registry of this Court on 10 June 1996 and the case was
removed from the Register by order of 18 July 1996 (Case T-301/94 Laakmann
Karton v Commission, not published in the ECR).
- 28.
- Four Finnish undertakings, members of the trade association Finnboard, and as
such 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).
- 29.
- Lastly, an action was also brought by an association, CEPI-Cartonboard, which was
not an addressee of the Decision. However, it withdrew its action by letter lodged
at 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-Cartonboard
v Commission, not published in the ECR).
- 30.
- By letter of 5 February 1997 the Court requested the parties to take part in an
informal 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 that
meeting, which took place on 29 April 1997, the parties agreed to such a joinder.
- 31.
- By order of 4 June 1997 the President of the Third Chamber, Extended
Composition, of the Court, in view of the connection between the abovementioned
cases, joined them for the purposes of the oral procedure in accordance with
Article 50 of the Rules of Procedure and allowed an application for confidential
treatment submitted by the applicant in Case T-334/94.
- 32.
- By order of 20 June 1997 he allowed an application for confidential treatment
submitted by the applicant in Case T-337/94 which related to a document produced
in response to a written question from the Court.
- 33.
- Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber,
Extended Composition) decided to open the oral procedure and adopted measures
of organisation of procedure in which it requested the parties to reply to certain
written questions and to produce certain documents. The parties complied with
those requests.
- 34.
- The parties in the cases referred to in paragraph 30 above presented oral argument
and gave replies to the Court's questions at the hearing which took place from
25 June to 8 July 1997.
Forms of order sought
- 35.
- The applicant claims that the Court should:
annul Article 1 and/or Article 3 of the Decision in so far as it concerns the
applicant;
in the alternative, substantially reduce the fine imposed on it in Article 3;
order the Commission to pay the costs.
- 36.
- The Commission contends that the Court should:
reject the application as unfounded;
order the applicant to pay the costs.
Admissibility of certain pleas
- 37.
- At an informal meeting on 29 April 1997 the undertakings which had brought
actions to contest the Decision were requested to consider whether they wished to
present common oral argument in the event that the cases were joined for the
purposes of the oral procedure. It was stressed that oral argument could be
presented in common only by applicants which had actually relied on pleas in their
applications which corresponded to the subjects to be dealt with in common
argument.
- 38.
- By fax of 14 May 1997, lodged in the name of all the undertakings in question,
those undertakings informed the Court of their decision to deal with six subjects in
common oral argument, including the following:
(a) the description of the market and the cartel's lack of effects;
(b) the concept of 'single infringement and the standard of proof required;
and
(c) the allegation that there was collusion on volume control.
- 39.
- By fax received by the Court Registry on 23 June 1997 the applicant stated that it
would participate in all the common argument. In that fax it acknowledged that
it had not submitted pleas concerning the three subjects set out above, but it
argued that this should not prevent it from adopting the common argument in
question. It argued, repeating that line of argument at the hearing, that in its
application it had been unable to dispute either the very existence of the various
aspects of the infringement found in Article 1 of the Decision or the Commission's
assessment of the effects of that infringement, because the persons that were
deemed to have represented it in the alleged cartel were no longer employed by
it. It was therefore only when it became aware of the content of the common
argument in question that it became aware of the matters of fact which allowed it
to submit the relevant pleas.
- 40.
- That argument cannot be upheld.
- 41.
- Under the first subparagraph of Article 48(2) of the Rules of Procedure, no new
plea in law may be introduced in the course of proceedings unless it is based on
matters of law or of fact which have come to light in the course of the procedure.
In the present case, the Court finds that the applicant was not prevented from
challenging the allegations of law and of fact in the Decision in its application and
that it has not referred to any specific matter of fact or of law which has come to
light in the course of the procedure which could justify the introduction of new
pleas.
- 42.
- The pleas on which the applicant relied for the first time in its fax of 23 June 1997
must therefore be declared inadmissible.
Substance
The application for annulment of Articles 1 and 3 of the Decision
A The plea that SCA Holding is not the correct addressee of the Decision
Arguments of the parties
- 43.
- The applicant contends that it should not be held responsible for Colthrop's
conduct and that it is not therefore the correct addressee of the Decision.
- 44.
- First, it states that, after Colthrop had been sold in May 1991 and after Reed P&B
had changed its name to SCA Aylesford and then to SCA Holding, the SCA
group's business in the United Kingdom was restructured, with the result that SCA
Holding, the applicant, became a holding company.
- 45.
- Second, Colthrop should be regarded as the 'undertaking concerned by the
proceeding. It was, and still is, 'a separately identifiable economic entity forming
a 'separate profit centre and concerned by the infringement (see points 97 to 102
of Commission Decision 86/398/EEC of 23 April 1986 relating to a proceeding
under Article 85 of the EEC Treaty (IV/31.149 Polypropylene) (OJ 1986 L 230,
p. 1, 'the Polypropylene decision) or an 'organised assembly of human and
material resources, intended to pursue a defined economic purpose on a long-term
basis (Commission Notice regarding the concentrative and cooperative operations
under Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control
of concentrations between undertakings, OJ 1990 C 203, p. 10).
- 46.
- In order to show that Colthrop held an autonomous position rendering it capable
of infringing competition law, the applicant puts forward a series of very detailed
arguments to show, in substance, that (a) Colthrop was the only entity operating
in the cartonboard sector in each of the groups to which it belonged during the
period in question; (b) Colthrop's organisational structure underlined its autonomy;
and (c) Colthrop presented itself to third parties as a separate entity. The
applicant adds that Colthrop subsequently became a limited company, Colthrop
Board Mill Ltd, with the same assets, the same personnel and the same manager
(Mr Dalgleish). Lastly, it submits that the operational links between Colthrop and
Reed P&B were never as close as the Commission alleges.
- 47.
- Colthrop's autonomy was not affected in any way by the acquisition of Reedpack
by the SCA group. A number of Reedpack's assets, including Colthrop, were of
no interest to SCA, which explains the sale of Colthrop in May 1991. SCA did not
participate in Colthrop's management during the period in which it owned
Colthrop.
- 48.
- Third, since Colthrop should be regarded as the undertaking concerned, the
Decision should have been addressed to Colthrop Board Mill Ltd as successor to
that undertaking. The applicant observes that as a matter of substantive
Community competition law the concept of 'undertaking is determinative and
legal personality should be important only in so far as, for practical reasons of ease
of enforceability, the statement of objections and the Decision are addressed to,
and the fine imposed on, an entity with legal personality. Even though the
applicant accepts that as Colthrop was not incorporated at the material time the
Commission had the option of identifying a legal entity which could be held
responsible for the infringement for the purpose of enforcing the Decision, it
nevertheless states that the present case poses a problem of succession, because the
undertaking concerned, Colthrop, was incorporated as a company with its own legal
personality after the infringement but before the statement of objections was served
and that company is Colthrop's economic and functional successor.
- 49.
- In such a situation, if it has not been proved that the former owner directly
participated in the infringement, the question of succession should be resolved by
tracing the undertaking concerned through the various transfers and reorganisations
which it may have undergone. That approach is implicit in the judgment in Case
T-6/89 Enichem Anic v Commission [1991] ECR II-1623, paragraph 55, and in the
Polypropylene decision (as regards the imposition of a fine on Statoil), that is to
say, that the undertaking which actually participated in the cartel should not escape
being fined.
- 50.
- Fourth, even if Colthrop is not the undertaking concerned by the infringement, the
Decision should not have been addressed to the applicant. In Commission
Decision 84/388/EEC of 23 July 1984 relating to a proceeding under Article 85 of
the EEC Treaty (IV/30.988 Agreements and concerted practices in the flat-glass
sector in the Benelux countries, OJ 1984 L 212, p. 13) it was considered that a
parent company which had acquired two undertakings had not had time to assume
full control of them between the date of their acquisition and the cessation of the
infringement (five months). For the same reasons, the Commission should not
have addressed the Decision to the applicant.
- 51.
- In the alternative the applicant submits that the Commission erred in considering
that the undertaking was Reed P&B, because that company was reorganised after
its acquisition by SCA and was no more than an intermediate company with no
autonomy in regard to its business strategy and no control over its assets. The
Commission should therefore have investigated whether responsibility for
Colthrop's activities rested with the ultimate parent company, which changed on
several occasions. The applicant concludes that the Commission should in any
event have apportioned liability between Reed International plc, Reedpack and
SCA, but, as regards SCA, only for the period from July to November 1990.
- 52.
- Lastly, the Commission erroneously considers that Reed P&B and SCA Holding are
the same undertaking, because, given the fact that SCA Holding exercises only
indirect control (through the intermediary of a subsidiary) over one of the six
papermills originally owned by Reed P&B, SCA Holding cannot be considered to
be the same undertaking as Reed P&B. The only evidence on which the
Commission relies in finding that Reed P&B and SCA Holding are the same
undertaking is their registered office and registration number. However, an
undertaking cannot be identified on the basis of such purely formal factors.
- 53.
- The Commission considers that the applicant's arguments are without foundation,
because the Decision was addressed to the undertaking and company which
committed the infringement. Where an infringement of the Community
competition rules has been found, it is necessary to identify the legal person which
is responsible for it, because only legal persons can be the addressees of decisions
imposing fines. In the present case, Reed P&B was the legal person responsible
for the infringement and should therefore be liable for it.
- 54.
- Reed P&B, as the undertaking concerned, manufactured cartonboard in its
Colthrop mill, Colthrop having been, throughout the period of the infringement and
including the period after the acquisition of Reed P&B by the SCA group, merely
an asset belonging to Reed P&B, then to SCA Aylesford and finally to SCA
Holding.
- 55.
- In that context, the Commission states that two persons who attended discussions
in the PC and the JMC participated in those discussions not as representatives of
Colthrop but rather of Reed P&B.
- 56.
- Furthermore, after the acquisition by the SCA group of part of the Reedpack
group, including Reed P&B, the latter company continued to manufacture the same
product at the same place with the same staff, some SCA employees joining it at
senior management and board level. Reed P&B then merely changed its name, so
as to become, in February 1991, SCA Aylesford Ltd and then, on 4 February 1992,
SCA Holding Ltd. However, it was always the same company, SCA Holding having
the same address and the same registration number as Reed P&B and SCA
Aylesford.
- 57.
- According to the Commission, the sale of the assets which constituted the Colthrop
mill and its subsequent incorporation do not alter the fact that Reed P&B must be
regarded as the undertaking and the company which committed the infringement.
As indicated in point 156 of the Decision, it is necessary to distinguish between
legal persons and mere assets, a distinction which was confirmed by the Court of
First Instance in Enichem Anic v Commission, cited above (paragraphs 236 to 240).
- 58.
- The Commission concludes that, contrary to SCA Holding's contentions, this case
does not raise any question of succession.
- 59.
- Furthermore, even if the Commission could have addressed its decision to the new
owner of the mill, that would not mean that it could not choose to address that
decision to Reed P&B, now SCA Holding. If Colthrop could be considered to be
the undertaking concerned, that would mean solely that the Commission had a
choice as to the addressee of the Decision (see Case T-65/89 BPB Industries and
British Gypsum v Commission [1993] ECR II-389, upheld by the judgment of the
Court of Justice in Case C-310/93 P [1995] ECR I-865).
- 60.
- Lastly, SCA's assertions regarding Colthrop's autonomy are irrelevant, since they
are not confirmed by the facts.
Findings of the Court
- 61.
- It is common ground that Colthrop was the factory at which cartonboard was
manufactured and that throughout the full period of the infringement that factory
was owned by Reed P&B, then by SCA Aylesford Ltd and lastly by SCA Holding.
- 62.
- Reed P&B, SCA Aylesford Ltd and SCA Holding (the applicant) are, however, the
names successively adopted by one and the same legal person.
- 63.
- The circumstances of this case do not therefore give rise to any question of
succession. The Court has held (in Enichem Anic v Commission, cited above,
paragraphs 236 to 238) that an undertaking's infringement must be attributed to
the legal person responsible for the operation of that undertaking when the
infringement was committed. While that legal person exists, responsibility for the
undertaking's infringement follows that legal person, even though the assets and
personnel which contributed to the commission of the infringement have been
transferred to third persons after the period of the infringement.
- 64.
- The Commission was therefore entitled to address the Decision to the legal person
which was responsible for the unlawful conduct found during the period of the
infringement and which still existed when the Decision was adopted.
- 65.
- Thus, even if Colthrop could be regarded as an undertaking within the meaning of
Article 85 of the Treaty and on the day when the Decision was adopted it was
owned by the legal person Colthrop Board Mill Ltd, the applicant's arguments
would at the very most show only that the Commission had a choice as regards the
addressee of the Decision. In those circumstances, the Commission's choice cannot
therefore be validly called into question.
- 66.
- Furthermore, Reed P&B appeared in the list of members of the PG Paperboard.
- 67.
- According to point 143 of the Decision, the Commission, in principle, addressed the
Decision to the entity named in the membership list of the PG Paperboard, except
that:
'1 where more than one company in a group participated in the infringement;
or
2 where there is express evidence implicating the parent company of the
group in the participation of the subsidiary in the cartel,
the proceedings have been addressed to the group (represented by the parent
company).
- 68.
- Since the Commission did not consider that either of the two conditions for making
an exception to the principle in point 143 was satisfied, it was entitled to decide not
to address the Decision to the successive parent companies of Reed P&B/SCA
Aylesford/SCA Holding.
- 69.
- This plea must therefore be rejected as unfounded.
B The plea alleging an inadequate or erroneous statement of reasons regarding the
designation of Reed P&B as the undertaking concerned and SCA Holding as the
addressee of the Decision
Arguments of the parties
- 70.
- The applicant observes that in its judgment in Case T-38/92 AWS Benelux v
Commission [1994] ECR II-211, paragraph 26, the Court held that a decision
adopted under Articles 85 and 86 of the Treaty which is addressed to several
addressees and raises a problem with regard to liability for the infringement must
contain a clear statement of reasons with respect to each of the addressees and in
particular towards those who are to incur fines.
- 71.
- The present case is analogous to the case which gave rise to that judgment, because
the applicant has vigorously argued in the procedure before the Commission that
it is not the proper addressee of the Decision. However, in the present case the
Commission decided not to follow the assets employed in the commission of the
infringement, but to attribute liability to the legal person which directly owned them
at a particular time. That choice of addressee was based solely on considerations
of expediency.
- 72.
- Moreover, in holding that Reed P&B was the undertaking concerned, the
Commission merely found that it was mentioned in the list of the members of the
PG Paperboard. Such reasoning does not, however, satisfy the requirements for
an adequate statement of reasons.
- 73.
- As regards the analogy drawn by the Commission in point 155 of the Decision with
the situation of MoDo/Iggesund, the applicant states that Colthrop is no longer part
of the SCA group and had been part of it for only a few months, whereas Iggesund
has been part of the MoDo group since 1989. Contrary to what is stated in the
Decision, those two situations are not therefore in any way comparable.
- 74.
- The Decision also contains an inadequate statement of reasons in regard to the
claim that SCA Holding is the economic successor to Reed P&B. In that regard,
the Commission relies solely on the fact that SCA Holding currently owns the
shares of the two companies to which part of Reed P&B's assets was transferred.
Moreover, according to the judgment in Joined Cases 40/73 to 48/73, 50/73, 54/73,
55/73, 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975]
ECR 1663, the relevant continuity is that between the undertaking concerned and
its successor, which is Colthrop Board Mill Ltd in this case.
- 75.
- The applicant observes that in point 145 of the Decision it is stated that a parent
company or group which is considered a party to the infringement and which
transfers a subsidiary to another undertaking retains responsibility for that
subsidiary in respect of the period up to the date of transfer. However, the
Decision does not explain why it was not addressed, in accordance with that line
of reasoning, to Reed International, the ultimate owner of Colthrop until July 1988.
- 76.
- Finally, the applicant observes that according to point 143 of the Decision, the
Commission decided to address the Decision to the entities cited in the list of
members of the PG Paperboard save 'were there [was] express evidence
implicating the parent company of the group in the participation of the subsidiary
in the cartel, in which case the Decision was to be addressed to the parent
company. However, even though the Commission did not initiate proceedings
against SCA, it continues to claim, without specific proof, that SCA was involved
in Colthrop's management. If the Commission considers that SCA had participated
in Colthrop's management, it should have considered that question in more detail
in the Decision in order to determine precisely which was the undertaking
concerned.
- 77.
- The Commission considers that in points 155 to 157 of the Decision it amply set
out the reasons for which SCA Holding was the correct addressee of the Decision.
It states that the essence of the reasoning in the Decision is that SCA Holding is
merely the new name of Reed P&B.
Findings of the Court
- 78.
- It is settled law that the statement of the reasons on which a decision having an
adverse effect on an individual is based must enable effective review of its legal
validity to be carried out and must provide the person concerned with information
sufficient to allow him to ascertain whether or not the decision is well founded.
The adequacy of such a statement of reasons must be assessed according to the
circumstances of the case, and in particular the content of the measure in question,
the nature of the reasons relied on and the interest which addressees may have in
receiving explanations. In order to fulfil those purposes, an adequate statement of
reasons must disclose in a clear and unequivocal fashion the reasoning followed by
the Community authority which adopted the measure in question. Where, as in the
present case, a decision taken in application of Articles 85 or 86 of the Treaty
relates to several addressees and raises a problem of attribution of liability for the
infringement, it must include an adequate statement of reasons with respect to each
of the addressees, in particular those of them who, according to the decision, must
bear the liability for that infringement (see, in particular, AWS Benelux v
Commission, cited above, paragraph 26).
- 79.
- In the present case, it is not disputed that in the course of the administrative
procedure before the Commission the applicant put forward several grounds on
which it considered that the alleged infringement could not be attributed to it.
- 80.
- Consequently, in order to contain an adequate statement of reasons in regard to
the applicant, the Decision had to contain a detailed statement of reasons for
attributing the infringement to the applicant.
- 81.
- Since the applicant's complaints concern more specifically points 155 to 157 of the
Decision, it must be considered whether those points contain an adequate
statement of reasons.
- 82.
- In the first paragraph of point 155 it is stated that: 'The acquisition by the
Swedish forest products group SCA of Reedpack plc, the ultimate owner of the
Colthrop Board Mill, presents no particular problem under the approach described
in recital 143 (see paragraph 67 above).
- 83.
- In the second paragraph of point 155 the Commission observes that Reed P&B is
named in the list of members of the PG Paperboard.
- 84.
- It then states in the first paragraph of point 156:
'... There is a clear continuity between Reed Paper & Board (UK) Ltd, SCA
Aylesford Ltd, and SCA Holding Ltd; they are one and the same corporate entity
known by different names. The fact that the Colthrop mill was sold off in May
1991 still left SCA Holding Ltd in existence. Responsibility for its involvement does
not pass with the Colthrop mill which was simply one of its assets ....
- 85.
- In support of its assertion it refers (ibidem) to the judgment in Enichem Anic v
Commission, cited above, (paragraphs 236 to 240). That reference makes the
Commission's approach unambiguous.
- 86.
- In the light of those explanations in the Decision, the Court finds that the
Commission adequately explained the reasons which led it to address the Decision
to the applicant.
- 87.
- Points 155 to 157 of the Decision also set out, first, the applicant's main arguments
regarding the identity of the undertaking which should bear the liability for the
infringement and, second, the Commission's replies to those arguments.
- 88.
- Those points clearly show that the Commission considered and assessed the
arguments submitted by the applicant during the administrative procedure.
- 89.
- The adequacy of the statement of reasons in regard to those arguments cannot
therefore be called into question.
- 90.
- Finally, in as much as the applicant's arguments set out in paragraphs 73 to 76
above solely seek to challenge the validity of the reasons which led the Commission
to address the Decision to it, those reasons fall outside the scope of the review to
be carried out by the Court in the context of this plea. It follows that those
arguments are irrelevant.
- 91.
- This plea must therefore be rejected.
C The plea that there is an error regarding the duration of the infringement
Arguments of the parties
- 92.
- The applicant submits that any participation by Colthrop in the meetings of the
various committees of the PG Paperboard and in its activities ceased at the end of
November 1990 when SCA became aware of the possible infringement of
Community competition law within that body (see also point 157, last sentence, of
the Decision). It is therefore for the Commission to prove its assertion that the
infringement continued to produce its effects after that date (Enichem Anic v
Commission, cited above, paragraphs 90 to 100). The Commission has not adduced
the slightest proof of that assertion and is merely speculating in that regard.
- 93.
- More particularly, the applicant disputes the Commission's assertion that Colthrop
applied a price increase which was decided in October 1990 and was to be applied
between January and April 1991. It submits that Colthrop's actual prices at the
beginning of 1991 did not follow the amount or the timing of that increase. At the
end of October 1990 Colthrop announced a price increase of UKL 40 per tonne,which was to become effective at the end of January 1991. In fact, the increase
was delayed until 1 March or 1 April 1991 for the largest customers. Colthrop
therefore unilaterally and independently changed the date on which the price
increase came into effect. Furthermore, that increase was justified by an increase
in costs and by an improvement in the product.
- 94.
- The Commission considers that, when determining the duration of the infringement,
it correctly held that the infringement continued to produce effects until the cartel
had ceased in its entirety.
Findings of the Court
- 95.
- The system of competition rules established by Article 85 et seq. of the Treaty is
concerned with the economic effects of agreements or of any comparable form of
concerted practice or coordination rather than with their legal form. Consequently,
with regard to cartels which are no longer in force, it is sufficient, for Article 85 to
be applicable, that they continue to produce their effects after they have formally
ceased to be in force (see, for example, Case 243/83 Binon v AMP [1985] ECR
2015, paragraph 17).
- 96.
- In this case, the applicant does not dispute that it participated in the cartel in
October 1990, the date on which the last concerted price increase was announced
by it and others (see table 4 annexed to the Decision).
- 97.
- As regards the actual implementation of that increase, which was to enter into
force with effect from January 1991, the applicant sent the following information
to the legal service of the parent company of the SCA group in its letter of 23
January 1991:
'We have announced a £40/tonne price increase from the end of January 1991.
This received strong resistance and we were concerned that it would be
substantially delayed or reduced. We now know that the majority of our customers
will pay the increase from due date, some large customers will delay until 1st
March/1st April. However, this is better than recently anticipated.
- 98.
- It is thus clear that it strived to ensure the actual implementation on the agreed
date of the concerted price increase announced in October 1990. Since the
applicant acted on the market in accordance with the agreed behaviour, the cartel
therefore continued to produce its effects, as regards the applicant, beyond
November 1990, the date when the applicant ceased to participate in meetings of
bodies of the PG Paperboard.
- 99.
- Since the level of list prices agreed between the undertakings was still in force in
April 1991, the month in which the Commission's agents carried out investigations
at the premises of several undertakings in accordance with Article 14 of Regulation
No 17, the Commission rightly took April 1991 as the date when the infringement
committed by the applicant ceased.
- 100.
- In the light of the foregoing, this plea must be rejected.
The application for annulment or reduction of the fine
A The plea that the Commission wrongly failed to take into consideration several
special circumstances
- 101.
- The applicant relies on a series of circumstances which, in its submission, should
have been taken into consideration as mitigating circumstances when the amount
of the fine imposed on it was assessed. The Court will consider each of those
circumstances separately.
Colthrop made up only a tiny part of the Reedpack businesses acquired by the
SCA group and was not actually integrated into the SCA group
- 102.
- The applicant submits that Colthrop represented only a tiny part of the Reedpack
businesses acquired by the SCA group, as its sales represented only 2.3% of
Reedpack's turnover. Moreover, the SCA group's intention was to resell Colthrop
and it actually did so in 1991. No representative of the group even visited Colthrop
before the acquisition of Reedpack. Lastly, because of Colthrop's poor results, it
was difficult to sell it at a reasonable price.
- 103.
- Those factors are relevant to illustrate two criteria which the Commission, in point
169 of the Decision, claims to have taken into account, namely the importance of
the undertaking concerned and the role played by each undertaking. They
demonstrate Colthrop's small size, the lack of interest of SCA and the applicant in
the cartonboard business and their lack of involvement in it.
- 104.
- The Court observes, however, that the infringement found was correctly attributed
to the applicant.
- 105.
- As regards Colthrop's small size, the fine imposed was calculated on the basis of
the applicant's turnover on the Community cartonboard market in 1990 through the
Colthrop mill. When fixing the amount of the fine, the Commission therefore took
into account the applicant's economic strength on the relevant market.
- 106.
- As regards the argument that the cartonboard sector and the Colthrop mill in
particular were of no interest to the SCA group, it suffices to state that the
Commission has actually established the existence of a deliberate infringement by
the applicant of Article 85(1) of the Treaty. As regards the remainder of its
submissions, since the SCA group was not the addressee of the Decision and there
was no complaint that it was involved in the infringement in its capacity as parent
company of the applicant, the question whether or not the cartonboard sector was
of interest to the SCA group is irrelevant.
- 107.
- The applicant's objection cannot therefore be upheld.
The SCA group's lack of involvement in the management of Colthrop and in the
alleged infringements
- 108.
- The applicant repeats the arguments submitted by it in the context of the first plea
to show that SCA was not involved in the management of Colthrop in any way.
The parent company's lack of involvement should have been taken into account,
because it bears the burden of the fine, the applicant merely being a holding
company.
- 109.
- That argument cannot be upheld. Since the infringement was rightly attributed to
the applicant, the question whether the SCA group was involved in the
management of Colthrop and whether the ultimate parent company of the group
was aware of the infringement is irrelevant for the purpose of determining the
amount of the fine.
- 110.
- This objection must therefore be rejected.
The infringement committed by Colthrop ceased in November 1990
- 111.
- The applicant repeats its assertion that Colthrop's participation in the meetings of
the various committees of the PG Paperboard ceased in November 1990 (see
paragraph 92 et seq. above). Colthrop did not therefore have to 'dissociate itself
from the price increase announced by the cartel at the beginning of 1991 because
at that date it was not associated with it.
- 112.
- In that regard, it suffices for the Court to observe that the applicant was correctly
considered to have participated in the infringement until April 1991 (see paragraph
95 et seq. above).
- 113.
- This objection must therefore be rejected.
The SCA group applies a strict policy of avoiding infringements of competition law
- 114.
- The applicant submits that since 1988 it has pursued a strict policy of avoiding
infringements of competition law. Several presentations have been held at the
most important of the group's locations in Europe in order to explain that policy
to its staff. In those circumstances, the applicant cannot be held responsible for
conduct alleged against another undertaking which is clearly at variance with SCA's
efforts to comply with the Community competition rules.
- 115.
- The Commission states, inter alia, that the compliance programme in question
proved ineffective, because nothing was done to prevent the continuation of the
infringement.
- 116.
- In accordance with the case-law of the Court of Justice, the gravity of infringements
falls to be determined by reference to a number of factors including, in particular,
the specific circumstances and context of the case and the deterrent character of
the fines; moreover, no binding or exhaustive list of the criteria which must be
applied has been drawn up (order of 25 March 1996 in Case C-137/95 P SPO and
Others v Commission [1996] ECR I-1611, paragraph 54). Amongst the factors
which may be taken into account in mitigation is the implementation of a
compliance programme (see T-77/92 Parker Pen v Commission [1994] ECR II-549,
paragraph 93).
- 117.
- In the present case, although the applicant asserts that it ceased to participate in
meetings of the PG Paperboard as soon as it became aware, following the BPIF
complaint, of a possible infringement of the Community competition rules (see
point 163, second paragraph, of the Decision), the Commission nevertheless
correctly found that the infringement continued until April 1991 (see paragraph 95
et seq. above).
- 118.
- The compliance programme on which the applicant relies thus proved ineffective
and, accordingly, the Commission did not have to take it into consideration as a
mitigating factor.
- 119.
- The applicant's complaint must therefore be rejected.
The complaint that no account was taken of the fact that Colthrop was only a very
minor member of the PG Paperboard
Arguments of the parties
- 120.
- The applicant submits the following arguments:
Colthrop was not one of the ringleaders and was too small to be considered
important by them;
Colthrop was a small producer manufacturing only GD cartonboard and the
Commission accepts that the collusion was less successful for that grade;
Colthrop never participated in PWG meetings;
Colthrop is referred to very infrequently in the documents on which the
Commission relies;
Colthrop was not a member of the Paper Agents Association, which is said
to have carried out the infringements at national level (points 94 to 99 of
the Decision);
unlike the other producers, Colthrop did not attend any meeting of the PG
Paperboard after the complaint lodged was made public at the end of
November 1990;
Colthrop is not one of the undertakings accused of having participated in
the volume-control scheme.
- 121.
- The applicant adds that the Commission decided not to address the Decision to a
number of undertakings larger (in terms of cartonboard sales in the Community)
than Colthrop and which are possibly no less important than Colthrop in the cartel.
In those circumstances one cannot exclude the possibility that the Commission was
influenced by the fact that when the infringement was discovered Colthrop was
owned by the SCA group.
- 122.
- Lastly, the applicant states that it has never denied that Colthrop participated in
a common industry plan which infringed Article 85 of the Treaty. It merely asks
that the Commission should apply the criteria which it had itself laid down for
determining the amount of the fine.
- 123.
- The Commission points out that it found that all the addressees of the Decision
participated in a single infringement consisting of a common industry plan to
restrict competition, involving agreed price increases, an understanding on market
shares, concerted measures to control supply and an exchange of commercial
information to support those policies (see points 116 et seq. of the Decision). All
addressees of the Decision committed that infringement in its entirety, and that
justified the fines imposed. The applicant cannot request a reduction in its fine on
the ground that it did not take measures to restrict its own production. The
Commission accepts that only the major producers attending the meetings of the
PWG restricted production in that way. However, they did so for the benefit of all
the undertakings participating in the infringement. The applicant cannot therefore
request a reduction of the fine on the ground that it was a 'participant on the
fringe of the cartel.
- 124.
- Furthermore, Reed P&B frequently took part in the meetings of the cartel.
However, the Commission never claimed that it attended meetings of the PWG.
Since it attended meetings of the JMC in particular and applied the prices agreed,
it cannot be regarded as a fringe participant and thus have its fine reduced. There
were no fringe participants, merely ordinary participants and ringleaders.
Findings of the Court
- 125.
- In order to determine the amount of the fine imposed on each addressee of the
Decision the Commission took into account, inter alia, the role played by each in
the collusive arrangements (first indent of the first paragraph of point 169 of the
Decision). It explains in point 170 that the undertakings which participated in the
meetings of the PWG were, in principle, regarded as 'ringleaders of the cartel,
whereas the other undertakings were regarded as 'ordinary members. In its
written pleas to the Court and in its reply to a written question put by the Court,
the Commission explained that the fines were calculated on the basis of theturnover on the Community cartonboard market in 1990 of each undertaking
addressed by the Decision, and that fines of a basic level of 9 and 7.5% of that
turnover were then applied respectively to calculate the fines imposed on the cartel
'ringleaders and on its 'ordinary members.
- 126.
- That approach was confirmed by a table as to the calculation of the amount of the
fines which the Commission produced in reply to a written question from this
Court.
- 127.
- The applicant states that it does not deny that Colthrop participated in the
common plan to restrict competition described in Article 1 of the Decision.
Likewise, it does not dispute the description in the Decision of the role of each
body of the PG Paperboard.
- 128.
- According to the Decision, the PWG was the body in which the principal decisions
with an anti-competitive object were adopted. Moreover, although the Commission
considers that all the undertakings referred to in Article 1 of the Decision must be
considered to have participated in all of the constituent elements of the
infringement set out in that article, it is apparent from the Decision that the
collusion on maintaining the market shares of the main producers at constant
levels, subject to occasional amendments, concerned only the market shares of the
undertakings which participated in the PWG meetings (points 51 to 60 of the
Decision). Lastly, the Commission accepts that, as regards collusion on downtime,
'it seems again that it was the main producers who took upon themselves the
burden of reducing output so as to maintain price levels (point 71, second
paragraph, of the Decision).
- 129.
- Having regard to those factors, the applicant's complaint that the Commission did
not correctly assess its role in the cartel cannot be upheld.
- 130.
- First, the applicant was not considered to be one of the 'ringleaders of the cartel.
The Commission therefore took account of the applicant's non-participation in the
PWG meetings. Moreover, it correctly assessed the gravity of the infringement
committed by the cartel 'ringleaders and by its 'ordinary members respectively,
in adopting, for the purpose of calculating the fines imposed on those two
categories of undertaking, basic rates of 9 and 7.5% of relevant turnover.
- 131.
- Second, the Decision explains that the undertakings which did not participate in the
PWG meetings were informed at meetings of the JMC of decisions adopted by the
PWG and that the JMC was the main centre for both the preparation of decisions
adopted by the PWG and for detailed discussions concerning the implementation
of those decisions (see, in particular, points 44 to 48 of the Decision). In those
circumstances, as the applicant does not dispute either the Decision's description
of the JMC's functions or Colthrop's participation in the various constituent
elements of the infringement, and as the applicant was one of the most regular
participants in the JMC meetings (see table 4 annexed to the Decision), it cannot
legitimately argue that the Commission should have taken the view that it played
a less important role in the cartel than that of the other undertakings considered
to be 'ordinary members.
- 132.
- The fact that the applicant did not participate in meetings of the various bodies of
the PG Paperboard after November 1990 in no way affects that finding, because
the infringement continued until April 1991 (see paragraph 95 et seq. above).
- 133.
- Third, the importance of each undertaking in the cartonboard sector was
necessarily taken into consideration, because the turnover in that sector was taken
as the reference turnover for the purposes of determining the amount of the fine
imposed on each addressee of the Decision. The applicant is therefore wrong in
asserting that the Commission did not take Colthrop's small size and minor
importance in the sector into consideration.
- 134.
- As regards the fact that Colthrop produced only GD cartonboard, the applicant
does not dispute that the infringement concerned GC, SBS and GD cartonboard
and that its own behaviour did not serve to alleviate the anti-competitive effects of
the infringement (see also paragraph 143 et seq. below). In those circumstances
the Commission rightly did not take the fact that the collusion may have been less
successful in respect of the only grade of cartonboard manufactured by Colthrop
to be a mitigating factor.
- 135.
- On the basis of the foregoing considerations, this complaint must be rejected.
The complaint that no account was taken of the fact that Colthrop's prices did not
correspond to the cartel's announced prices
Arguments of the parties
- 136.
- The applicant contends that in its reply to the statement of objections (pages 15 to
20) it showed that Colthrop's pricing policy was generally unrelated to the apparent
prices of the cartel. It demonstrated, by a representative sample of eight
customers, that, for three of them, prices rose by only about 10 to 15%, whereas
Colthrop's average list price increased by almost 30% and the average price of the
cartel rose by more than 35%. Moreover, prices charged to one of the customers
even fell. Lastly, for the remaining four customers, the prices followed neither
Colthrop's list prices nor the prices announced by the cartel.
- 137.
- Even the prices announced by Colthrop do not seem to have followed the prices
announced by the cartel. Some of the cartel's price increases were not followed by
Colthrop, because they did not concern the GD grade or the United Kingdom
market. Nor did Colthrop's price increases coincide with the timing or level of the
other producers' increases. Lastly, they were justified by increases in actual costs.
- 138.
- The applicant states that it does not deny that it participated in an infringement of
Article 85 of the Treaty. However, it contends that the Commission should have
taken into account the fact that Colthrop did not implement the cartel's pricing
decisions. That shows that Colthrop's conduct did not adversely affect competition
or customers. In that regard, the applicant observes in its reply that the
Commission justifies the fact that the fine is higher than in comparison with the
Polypropylene decision by arguing that the cartel was largely successful in achieving
its objectives. However, that argument is invalid as regards Colthrop, whose
infringement was less serious.
- 139.
- The Commission considers that the applicant is merely showing that there was a
difference between its list price and the price actually charged and states that the
cartel was concerned with list prices. Moreover, it refers to points 89, 101 and 102
of the Decision.
- 140.
- The applicant's price increase announcements corresponded to the prices agreed
on various occasions (see the table annexed to the Decision concerning price
increase initiatives). The applicant's arguments do not rebut the fact that the basis
for the prices applied to customers was the list price, which was the agreed price.
Lastly, no other producer complained that the applicant was not applying the
agreed price, whereas there are some indications in that regard for at least one
other member of the cartel (point 59 of the Decision).
Findings of the Court
- 141.
- The applicant does not deny that Colthrop participated in the collusion on prices,
as found in Article 1 of the Decision. The infringement was correctly attributed to
it. Likewise, the applicant does not dispute the Commission's assessment of the
general effects of that collusion on the market (see, in particular, points 100 to 102,
115, and 135 to 137 of the Decision).
- 142.
- That fact that an undertaking which has been proved to have participated in
collusion on prices with its competitors did not behave on the market in the
manner agreed with its competitors is not necessarily a matter which must be taken
into account as a mitigating circumstance when determining the amount of the fine
to be imposed. An undertaking which despite colluding with its competitors follows
a more or less independent policy on the market may simply be trying to exploit
the cartel for its own benefit.
- 143.
- In this case, the evidence adduced by the applicant does not show that its actual
conduct on the market was likely to defeat the anti-competitive effects of the
infringement found. In particular, in support of the present objection the applicant
has produced graphs comparing Stora's announced prices, the applicant's
announced prices and its transaction prices. However, the graphs relating to the
applicant's transaction prices relate to only eight customers, selected by it, without
any indication of the tonnage delivered to each customer. Moreover, for each
customer in question they show very large fluctuations in transaction prices, those
prices being sometimes even higher than the prices announced by the applicant and
by Stora. Lastly, in the Decision the Commission accepts that transaction prices
were not always identical to announced prices. It states in particular: 'Even if all
the producers stayed resolute on introducing the full increase, the possibilities for
customers of switching to a cheaper quality or grade meant that a supplying
producer might have to make some concessions to its traditional customers as
regards timing or give additional incentives in the form of tonnage rebates or large
order discounts in order for the customer to accept the full basic-price increase.
A price increase would therefore inevitably take some time before it worked
through (point 101, sixth paragraph, of the Decision).
- 144.
- The graphs on which the applicant relies do not therefore show that its transaction
prices differed significantly from those of the other participants in the infringement.
- 145.
- Furthermore, the applicant does not claim that it was pressured by the other
undertakings participating in the cartel. Nor does it claim that it publicly distanced
itself from the decisions on price increases adopted at the meetings in which it
participated.
- 146.
- In those circumstances, the Commission was entitled to consider that the applicant's
conduct on the market, allegedly different from that agreed in the PG Paperboard,
did not constitute a mitigating factor.
- 147.
- The applicant's complaint must therefore be rejected.
B The plea that the Commission did not apply to SCA Holding/Colthrop the criteria
adopted for calculating the fines, or that it did so in a discriminatory manner
Arguments of the parties
- 148.
- The applicant observes that it appears from the explanations given at a press
conference on 13 July 1994 by the Commissioner responsible for competition policy
that the Commission awarded a one-third reduction in the fine imposed on
undertakings which did not contest the essential factual allegations relied upon by
the Commission against them in the statement of objections.
- 149.
- The plea is then set out in two parts.
- 150.
- In the first part the applicant claims that it has not received a reduction in the fine,
even though the essential factual allegations on which the Commission relied as
against Colthrop (see point 172 of the Decision) were not contested by it in its
reply to the statement of objections. That discriminatory treatment of it is all the
more unjustifiable because it had no knowledge of the infringement and no basis
on which to challenge the Commission's factual allegations.
- 151.
- The fact that it contested that it was, as a matter of law, the correct addressee of
the Decision does not alter the fact that it did not contest the essential factual
allegations relied upon by the Commission. That attitude undoubtedly enabled the
Commission to save time, which was apparently the main criterion for granting a
reduction in fines.
- 152.
- In the second part of the plea the applicant submits that the Commission claims
to have taken the view that certain undertakings, even though already members of
the PG Paperboard, did not play an active role in it before the creation of the JMC
in late 1987 or early 1988. Since Colthrop never played an active role in the PG
Paperboard, the Commission should have included it amongst those undertakings.
- 153.
- The Commission maintains, as regards the first part of the plea, that the applicant
did not admit anything and just contested its liability, an attitude which did not
amount to assistance. An allowance was merited only for assistance in making out
its case, admission of unlawful conduct and the saving of time. Consequently, no
allowance should be made for a denial that one is the correct addressee. That is
illustrated by the fact that in points 154 to 157 of the Decision the Commission had
to explain at length why the applicant was the correct addressee.
- 154.
- The Commission does not reply to the second part of the plea.
Findings of the Court
- 155.
- As regards the first part of the plea, the Court observes that in its reply to the
statement of objections the applicant states as follows:
'SCA Holding is handicapped in its defence because no one at SCA has any
knowledge of the activities of PG Paperboard or of the conduct outlined in the
Statement [of objections]. Moreover, SCA has never been in the cartonboard
business and has no knowledge of the industry. SCA Holding therefore cannot and
does not take a position as to the existence or scope of the alleged infringement.
- 156.
- The Commission correctly considered that the applicant, by replying in that way,
did not conduct itself in a manner which justified a reduction in the fine on grounds
of cooperation during the administrative procedure. A reduction on that ground
is justified only if the conduct enabled the Commission to establish an infringement
more easily and, where relevant, to bring it to an end (see Case T-13/89 ICI v
Commission [1992] ECR II-1021, paragraph 393).
- 157.
- An undertaking which expressly states that it is not contesting the factual
allegations on which the Commission bases its objections may be regarded as
having furthered the Commission's task of finding infringements of the Community
competition rules and bringing them to an end. In its decisions finding
infringements of those rules, the Commission is entitled to take the view that such
conduct constitutes an acknowledgement of the factual allegations and thus proves
that those allegations are correct. Such conduct may therefore justify a reduction
in the fine.
- 158.
- The situation is different where the essential allegations made by the Commission
in its statement of objections are contested by an undertaking in its reply to that
statement, or where the undertaking does not reply or merely states, as the
applicant did, that it is not expressing any view on the Commission's factual
allegations. By adopting such an attitude during the administrative procedure the
undertaking does not further the Commission's task of finding infringements of the
Community competition rules and bringing them to an end.
- 159.
- Consequently, when the Commission states in the first paragraph of point 172 of
the Decision that it has awarded reductions in the fines to be imposed on
undertakings which did not contest the essential factual allegations upon which it
relied against them, those reductions can be considered to be lawful only in so far
as the undertakings concerned have expressly stated that they are not contesting
those allegations.
- 160.
- Even if the Commission applied an unlawful criterion by reducing the fines imposed
on undertakings which had not expressly stated that they were not contesting the
factual allegations, it is necessary that respect for the principle of equal treatment
be reconciled with the principle of legality, according to which a person may not
rely, in support of his claim, on an unlawful act committed in favour of a third
party (see, for example, Case 134/84 Williams v Court of Auditors [1985] ECR 2225,
paragraph 14). For that reason, as the applicant's argument is directed specifically
at establishing its right to an unlawful reduction in the fine, the first part of the
plea cannot be upheld.
- 161.
- As regards the second part of the plea, it is apparent from point 162 of the
Decision that the Commission considered that some producers of cartonboard,
although already members of the PG Paperboard, apparently did not play an active
role in it before the JMC was set up in late 1987 or early 1988 and that those
producers should therefore be considered to have participated in the infringement
only at a later stage.
- 162.
- According to Article 1 of the Decision, the applicant participated in the
infringement from mid-1986. As it does not dispute that starting point, the fact
that Colthrop did not play an active role in the PG Paperboard before the JMC
was set up in late 1987/early 1988 does not justify treating the applicant in the same
way as producers who were considered to have begun to participate in the
infringement at a later stage.
- 163.
- Consequently, the second part of the plea cannot be upheld either.
- 164.
- The plea must therefore be rejected in its entirety.
C The plea that the fine imposed on the applicant is unreasonably high in absolute
terms and disproportionate in relation to the applicant's innocence and to the
objectives of Article 15(2) of Regulation No 17
Arguments of the parties
- 165.
- This plea is in three parts.
- 166.
- In the first part of the plea the applicant submits that the level of the fine imposed
7.5% of Colthrop's total turnover on the relevant market and 9% if inter-company sales are deducted is considerably higher than the level of fines imposed
in comparable cases, bearing in mind the company, the size of its operations, and
the degree of its involvement in the infringement. It contends that the average
level of fines imposed by the Polypropylene decision was 4% of sales of the
relevant product in western Europe by the undertakings concerned.
- 167.
- In the second part, the applicant observes that in Parker Pen v Commission, cited
above, paragraph 94, the Court held that the amount of the fine must be calculated
by reference to the total turnover of the undertaking, which gives an indication of
its size and economic strength, and to the turnover on the relevant market, which
gives an indication of the scale of the infringement. Since the fine imposed was
calculated without regard to Colthrop's total turnover, the Commission failed to
take into account the fact that during the reference year Colthrop had no turnover
outside the relevant market. Consequently, it failed to take account of Colthrop's
small size and strength. The fine is therefore disproportionately high in comparison
with those imposed on undertakings with an appreciable turnover outside the
relevant market. That result is contrary to the requirements laid down by the
Court in its judgment in Parker Pen v Commission.
- 168.
- In the third part of the plea the applicant observes that the general purpose of
fines is to ensure the implementation of Community competition policy and to
prevent any recurrence of infringements (Case 45/69 Boehringer Mannheim v
Commission [1970] ECR 769, at p. 805, and Joined Cases 100/80, 101/80, 102/80
and 103/80 Musique Diffusion Française and Others v Commission [1983] ECR
1825). Referring to the arguments which it submitted in support of its plea to the
effect that it is not the correct addressee of the Decision, it states that in the
present case the fine was imposed on an innocent bystander and the Commission
is not therefore achieving any of the objectives of Article 15(2) of Regulation No
17.
- 169.
- The Commission states that if there are no individual mitigating circumstances the
fine must be assessed by reference to criteria applicable to the infringement as a
whole (points 167 to 169 of the Decision). Those criteria are relevant and
adequately explained in the Decision. In particular they are similar, or even
identical, to criteria already upheld in many cases by the Court of Justice and by
the Court of First Instance (judgments of the Court of First Instance relating to the
Polypropylene decision, in particular in Case T-1/89 Rhône-Poulenc v Commission
[1991] ECR II-867). The criteria adopted for the infringement as a whole should
be applied to the turnover of each addressee.
- 170.
- The gravity and duration of the infringement committed in this case justified a high
general level of fines. The Commission compares the Decision with the
Polypropylene decision, in which the average level of fines was about 4%, with
standard fines from 4 to 5%. The slightly higher level of fines in the present case
is justified because, unlike the situation in the Polypropylene decision, the
infringement occurred at a time when the whole of the sector was profitable and
because the cartel largely secured its objectives. The Commission adds that this
Court seems to have taken the view that the fines imposed in the Polypropylene
decision could have been even higher because it stated that they were amply
justified in view of the seriousness of the infringement (Case T-3/89 Atochem v
Commission [1991] ECR II-1177, paragraph 226).
- 171.
- It states that the addressees of the Decision did not conclude from the
Polypropylene decision, which was published in August 1986, that they had an
obligation to obey the law. On the contrary, those undertakings took steps to
disguise their activities and concocted alternative explanations for what happened
on the market.
- 172.
- The applicant was fined because it was Reed P&B, the author of the infringement,
and because that infringement continued even after the SCA group came onto the
scene. It cannot, therefore, be regarded as an innocent bystander.
- 173.
- Lastly, the Commission observes that if an undertaking is small its fine is small in
absolute terms.
Findings of the Court
- 174.
- The first and second parts of the plea should be considered together.
- 175.
- Under Article 15(2) of Regulation No 17, the Commission may by decision impose
on undertakings fines ranging from ECU 1 000 to ECU 1 000 000, or a sum in
excess thereof but not exceeding 10% of the turnover in the preceding business
year of each of the undertakings participating in the infringement where, either
intentionally or negligently, they infringe Article 85(1) of the Treaty. In fixing the
amount of the fine, regard is to be had to both the gravity and the duration of the
infringement. As is apparent from the case-law of the Court of Justice, the gravity
of infringements falls to be determined by reference to numerous factors including,
in particular, the specific circumstances and context of the case and the deterrent
character of the fines; moreover, no binding or exhaustive list of the criteria which
must be applied has been drawn up (order in SPO and Others v Commission, cited
above, paragraph 54).
- 176.
- The criteria for assessing the gravity of the infringement may include the volume
and value of the goods in respect of which the infringement was committed, the
size and economic power of the undertaking and, consequently, the influence which
it was able to exert on the market. It follows that, on the one hand, it is
permissible, for the purpose of fixing the fine, to have regard both to the total
turnover of the undertaking, which gives an indication, albeit approximate and
imperfect, of the size of the undertaking and of its economic power, and to the
proportion of that turnover accounted for by the goods in respect of which the
infringement was committed, which gives an indication of the scale of the
infringement. On the other hand, it follows that it is important not to confer on
one or the other of those figures an importance which is disproportionate in
relation to the other factors and that the fixing of an appropriate fine might not be
the result of a simple calculation based on total turnover (see Musique Diffusion
Française and Others v Commission, cited above, paragraphs 120 and 121).
- 177.
- In the present case, the Commission determined the general level of fines by taking
into account the duration of the infringement (point 167 of the Decision) and the
following considerations (point 168):
' collusion on pricing and market sharing are by their very nature serious
restrictions on competition,
the cartel covered virtually the whole territory of the Community,
the Community market for cartonboard is an important industrial sector
worth some ECU 2 500 million each year,
the undertakings participating in the infringement account for virtually the
whole of the market,
the cartel was operated in the form of a system of regular institutionalised
meetings which set out to regulate in explicit detail the market for
cartonboard in the Community,
elaborate steps were taken to conceal the true nature and extent of the
collusion (absence of any official minutes or documentation for the PWG
and JMC; discouraging the taking of notes; stage-managing the timing and
order in which price increases were announced so as to be able to claim
they were following, etc.),
the cartel was largely successful in achieving its objectives.
- 178.
- Furthermore, basic levels of 9 or 7.5% were applied in order to determine the
amount of the fine to be imposed on the 'ringleaders of the cartel and on its
'ordinary members respectively (see paragraph 125 above).
- 179.
- It should be pointed out, first, that when assessing the general level of fines the
Commission is entitled to take account of the fact that clear infringements of the
Community competition rules are still relatively frequent and that, accordingly, it
may 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 certain
level to certain types of infringement does not mean that it is estopped from raising
that level, within the limits set out in Regulation No 17, if that is necessary in order
to ensure the implementation of Community competition policy (see, inter alia,
Musique Diffusion Française and Others v Commission, cited above, paragraphs 105
to 108, and ICI v Commission, cited above, paragraph 385).
- 180.
- Second, the Commission rightly argues that, on account of the specific
circumstances of the present case, no direct comparison could be made between
the general level of fines adopted in the present decision and those adopted in the
Commission's previous decisions, in particular in the Polypropylene decision, which
the Commission itself considered to be the most similar to the decision in the
present case. Unlike in the Polypropylene decision, no general mitigating
circumstance was taken into account in the present case when determining the
general level of fines. Moreover, the adoption of measures to conceal the existence
of the collusion shows that the undertakings concerned were fully aware of the
unlawfulness of their conduct. Accordingly, the Commission was entitled to take
into account those measures when assessing the gravity of the infringement,
because they constitute a particularly serious aspect of the infringement
distinguishing it from infringements previously found by the Commission.
- 181.
- Third, the Court notes the lengthy duration and obviousness of the infringement
of Article 85(1) of the Treaty which was committed despite the warning which the
Commission's previous decisions, in particular the Polypropylene decision, should
have provided.
- 182.
- On the basis of those factors, the criteria set out in point 168 of the Decision justify
the general level of fines set by the Commission.
- 183.
- In that context, the Court must also reject the applicant's argument that no account
could have been taken of Colthrop's size and economic power because its total
turnover in 1990 was the same as its turnover on the Community cartonboard
market in that same year.
- 184.
- First, the Commission took account of the abovementioned criteria for assessing the
gravity of the infringement. Second, when it assesses the gravity of an infringement,
the Commission is not obliged to take into account the relationship between the
total turnover of an undertaking and the turnover produced by the goods which are
the subject-matter of the infringement (judgment in Musique Diffusion Française
and Others v Commission, cited above, paragraph 121, and order in SPO and Others
v Commission, cited above, paragraph 54).
- 185.
- Furthermore, since the turnover of the undertakings implicated in the same
infringement must be taken as a basis for determining the relationship between the
fines to be imposed, the Commission rightly calculated the fines for each of those
undertakings by applying the relevant percentage rate of the fine to an identical
reference turnover for the undertakings concerned, so that the figures obtained
would be as comparable as possible.
- 186.
- The first and second parts of the plea must therefore be rejected as unfounded.
- 187.
- The third part of the plea, which is based on the proposition that the applicant is
an 'innocent bystander, must also be rejected. It suffices to point out that the
Court has found that the Commission was entitled to address the Decision to the
applicant.
- 188.
- This plea must therefore be rejected in its entirety.
D The plea that the imposition of a fine on the applicant infringes Article 15(2) of
Regulation No 17, Article 6(2) of the European Convention for the Protection of
Human Rights and Fundamental Freedoms of 4 November 1950, and the
fundamental principle of fairness
- 189.
- The applicant submits that the imposition of a fine on it by the Commission
infringed Article 15(2) of Regulation No 17, Article 6(2) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms of
4 November 1950 and the fundamental principle of fairness. In support of its
argument it refers in essence to the arguments which it submitted in the plea that
it was not the correct addressee of the Decision. It concludes that a fine was
imposed on it even though there had been no fault on its part.
- 190.
- The Court points out, first, that the Decision was correctly addressed to the
applicant and, second, that the applicant does not deny the occurrence of the
infringing conduct attributed to it. The applicant cannot therefore validly claim
that a fine has been imposed on it even though there was no fault on its part.
- 191.
- This plea must therefore also be rejected.
E The plea that the obligation to state reasons for the fines was infringed
Arguments of the parties
- 192.
- The applicant observes that it became aware of certain key aspects of the reasoning
and criteria applied by the Commission for the purpose of calculating the fines only
through a recording of the press conference given by the Commissioner responsible
for competition policy on the day on which the Decision was adopted. Although
the case-law does not require the Commission to disclose the exact calculations of
the fines imposed on each of the companies, that does not mean that its reasoning
does not have to be transparent.
- 193.
- Since the calculations performed and the 'discount policy applied in this case
were disclosed to the press, they should also have been set out in the Decision.
The applicant would not have been able to submit arguments regarding the
discrimination which it had suffered, had it not learnt through unofficial channels
of the existence of a recording of the press conference.
- 194.
- The Commission observes that the reasoning in the present decision is as detailed
in relation to the fines as the reasoning upheld in other cases, in particular in the
'Polypropylene cases (see, for example, Rhône-Poulenc v Commission, cited
above). As the applicant itself concedes, the Commission is not obliged to use a
mathematical formula for the purpose of calculating the fines, because such an
approach would allow undertakings to calculate in advance whether it was worth
committing the infringement (see Case T-30/89 Hilti v Commission [1991]
ECR II-1439).
Findings of the Court
- 195.
- It is settled law that the purpose of the obligation to give reasons for an individual
decision is to enable the Community judicature to review the legality of the decision
and to provide the party concerned with an adequate indication as to whether the
decision is well founded or whether it may be vitiated by some defect enabling its
validity to be challenged; the scope of that obligation depends on the nature of the
act in question and on the context in which it was adopted (see, inter alia, Case
T-49/95 Van Megen Sports v Commission [1996] ECR II-1799, paragraph 51).
- 196.
- As regards a decision which, as in this case, imposes fines on several undertakings
for infringement of the Community competition rules, the scope of the obligation
to state reasons must be assessed in the light of the fact that the gravity of
infringements falls to be determined by reference to numerous factors including,
in particular, the specific circumstances and context of the case and the deterrent
character of the fines; moreover, no binding or exhaustive list of criteria to be
applied has been drawn up (order in SPO and Others v Commission, cited above,
paragraph 54).
- 197.
- Moreover, when fixing the amount of each fine, the Commission has a margin of
discretion and cannot be considered to be obliged to apply a precise mathematical
formula for that purpose (see, to the same effect, the judgment in Case T-150/89
Martinelli v Commission [1995] ECR II-1165, paragraph 59).
- 198.
- In the Decision, the criteria taken into account in order to determine the general
level of fines and the amount of individual fines are set out in points 168 and 169
respectively. Moreover, as regards the individual fines, the Commission explains
in point 170 that the undertakings which participated in the meetings of the PWG
were, in principle, regarded as 'ringleaders of the cartel, whereas the other
undertakings 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 considerably
reduced in order to take account of their active cooperation with the Commission,
and that eight other undertakings were also to benefit from a reduction, to a lesser
extent, owing to the fact that in their replies to the statement of objections they did
not contest the essential factual allegations on which the Commission based its
objections.
- 199.
- As has already been observed, in the proceedings before this Court the Commission
has supplied additional evidence relating to the method of calculating the fines
which it applied in this case (see paragraph 125 above). It explained that it had
taken account of the cooperative attitude of some undertakings during the
procedure before it and that on that basis two of them had been awarded a
reduction of two-thirds in the amount of their fines, whilst others had received a
reduction of one-third.
- 200.
- Moreover, it is apparent from a table produced by the Commission containing
information as to the fixing of the amount of each individual fine that, although
those fines were not determined by applying the abovementioned figures alone in
a strictly mathematical way, those figures were, nevertheless, systematically taken
into account for the purposes of calculating the fines.
- 201.
- However, the Decision does not state that the fines were calculated on the basis
of the turnover of each undertaking on the Community cartonboard market in
1990. Furthermore, the basic rates of 9 and 7.5% applied to calculate the fines
imposed on the undertakings considered to be 'ringleaders and those considered
to be 'ordinary members do not appear in the Decision. Nor does it set out the
rates of reduction granted to Rena and Stora, on the one hand, and to eight other
undertakings, on the other.
- 202.
- In the present case, first, points 169 to 172 of the Decision, interpreted in the light
of the detailed statement in the Decision of the allegations of fact against each of
its addressees, contain a relevant and sufficient statement of the criteria taken into
account in order to determine the gravity and duration of the infringement
committed by each of the undertakings in question (see, to the same effect, Case
T-2/89 Petrofina v Commission [1991] ECR II-1087, paragraph 264).
- 203.
- Second, where, as in the present case, the amount of each fine is determined on
the basis of the systematic application of certain precise figures, the indication in
the Decision of each of those factors would permit undertakings better to assess
whether the Commission erred when fixing the amount of the individual fine and
also whether the amount of each individual fine is justified by reference to the
general criteria applied. In the present case, the indication in the Decision of the
factors in question, namely the reference turnover, the reference year, the basic
rates adopted, and the rates of reduction in the amount of fines would not have
involved any implicit disclosure of the specific turnover of the addressee
undertakings, a disclosure which might have constituted an infringement of Article
214 of the Treaty. As the Commission has itself stated, the final amount of each
individual fine is not the result of a strictly mathematical application of those
factors.
- 204.
- The Commission also accepted at the hearing that nothing prevented it from
indicating in the Decision the factors which had been systematically taken into
account and which had been divulged at a press conference held on the day on
which that decision was adopted. In that regard, it is settled law that the reasons
for a decision must appear in the actual body of the decision and that, save in
exceptional circumstances, explanations given ex post facto cannot be taken into
account (see Case T-61/89 Dansk Pelsdyravlerforening v Commission [1992] ECR
II-1931, paragraph 131, and, to the same effect, Hilti v Commission, cited above,
paragraph 136).
- 205.
- Despite those findings, the reasons explaining the setting of the amount of fines
stated in points 167 to 172 of the Decision are at least as detailed as those
provided 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 the
Decision was adopted, as regards the Commission's practice concerning the
statement of reasons for fines imposed. It was only in the judgment of 6 April 1995
in Case T-148/89 Tréfilunion v Commission [1995] ECR II-1063, paragraph 142, and
in two other judgments given on the same day (T-147/89 Société Métallurgique de
Normandie v Commission [1995] ECR II-1057, summary publication, and Case
T-151/89 Société des Treillis et Panneaux Soudés v Commission [1995] ECR II-1191,
summary publication) that this Court stressed for the first time that it is desirable
for undertakings to be able to ascertain in detail the method used for calculating
the fine imposed without having to bring court proceedings against the
Commission's decision in order to do so.
- 206.
- It follows that, when it finds in a decision that there has been an infringement of
the competition rules and imposes fines on the undertakings participating in it, the
Commission must, if it systematically took into account certain basic factors in
order to fix the amount of fines, set out those factors in the body of the decision
in order to enable the addressees of the decision to verify that the level of the fine
is correct and to assess whether there has been any discrimination.
- 207.
- In the specific circumstances set out in paragraph 205 above, and having regard to
the fact that in the procedure before the Court the Commission showed itself to
be willing to supply any relevant information relating to the method of calculating
the fines, the absence of specific grounds in the Decision regarding the method of
calculation of the fines should not, in the present case, be regarded as constituting
an infringement of the duty to state reasons such as would justify annulment in
whole or in part of the fines imposed.
- 208.
- This plea cannot therefore be upheld.
- 209.
- Having regard to all of the foregoing, the application must be dismissed.
Costs
- 210.
- Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be
ordered to pay the costs if they have been applied for in the successful party's
pleadings. Since the applicant has been unsuccessful in its submissions, it must be
ordered to pay the 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
Summary
Facts
II - 2
Procedure
II - 6
Forms of order sought
II - 7
Admissibility of certain pleas
II - 8
Substance
II - 9
The application for annulment of Articles 1 and 3 of the Decision
II - 9
A The plea that SCA Holding is not the correct addressee of the Decision
II - 9
Arguments of the parties
II - 9
Findings of the Court
II - 12
B The plea alleging an inadequate or erroneous statement of reasons regarding
the designation of Reed P&B as the undertaking concerned and SCA
Holding as the addressee of the Decision
II - 13
Arguments of the parties
II - 13
Findings of the Court
II - 15
C The plea that there is an error regarding the duration of the infringement
II - 16
Arguments of the parties
II - 16
Findings of the Court
II - 17
The application for annulment or reduction of the fine
II - 18
A The plea that the Commission wrongly failed to take into consideration
several special circumstances
II - 18
Colthrop made up only a tiny part of the Reedpack businesses acquired by
the SCA group and was not actually integrated into the SCA group
II - 18
The SCA group's lack of involvement in the management of Colthrop and
in the alleged infringements
II - 19
The infringement committed by Colthrop ceased in November 1990
II - 19
The SCA group applies a strict policy of avoiding infringements of
competition law
II - 20
The complaint that no account was taken of the fact that Colthrop was only
a very minor member of the PG Paperboard
II - 20
Arguments of the parties
II - 20
Findings of the Court
II - 22
The complaint that no account was taken of the fact that Colthrop's prices
did not correspond to the cartel's announced prices
II - 23
Arguments of the parties
II - 24
Findings of the Court
II - 24
B The plea that the Commission did not apply to SCA Holding/Colthrop the
criteria adopted for calculating the fines, or that it did so in a discriminatory
manner
II - 26
Arguments of the parties
II - 26
Findings of the Court
II - 26
C The plea that the fine imposed on the applicant is unreasonably high in
absolute terms and disproportionate in relation to the applicant's innocence
and to the objectives of Article 15(2) of Regulation No 17
II - 28
Arguments of the parties
II - 28
Findings of the Court
II - 30
D The plea that the imposition of a fine on the applicant infringes Article
15(2) of Regulation No 17, Article 6(2) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms of 4 November
1950, and the fundamental principle of fairness
II - 32
E The plea that the obligation to state reasons for the fines was infringed
II - 33
Arguments of the parties
II - 33
Findings of the Court
II - 33
Costs
II - 36