JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber,
Extended Composition)
14 May 1998 (1)
(Article 85(1) of the EC Treaty Infringement Proof)
In Case T-337/94,
Enso-Gutzeit Oy, a company incorporated under Finnish law, with its registered
office in Helsinki, represented by Ivo Van Bael and Jean-François Bellis, of the
Brussels Bar, and by Ciarán Keaney, Solicitor of the Law Society of Ireland, with
an address for service in Luxembourg at the Chambers of Freddy Brausch, 11 Rue
Goethe,
v
Commission of the European Communities, represented by Hans Gerald Crossland
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 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),
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 was held
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:
(...)
(iii) Enso-Gutzeit Oy, a fine of ECU 3 250 000;
(...)
- 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.
- According to the Decision, the applicant, Enso-Gutzeit Oy (hereinafter 'Enso-Gutzeit), which produces only SBS cartonboard, participated in the meetings of
the PC. It was also a member of the Nordic Paperboard Institute (hereinafter
'NPI). The Commission considered that the applicant had participated in the
infringement referred to in Article 1 of the Decision from mid-1986 until April
1991.
Procedure
- 21.
- The applicant brought this action by application lodged at the Registry of the Court
on 14 October 1994.
- 22.
- 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-327/94, T-334/94, T-338/94, T-347/94, T-348/94, T-352/94 and T-354/94).
- 23.
- The applicant in Case T-301/94, Laakmann Karton GmbH, withdrew its action 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 GmbH v Commission, not published in the ECR).
- 24.
- 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).
- 25.
- 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 the
Register of the Court by order of 6 March 1997 (Case T-312/94 CEPI-Cartonboard
v Commission, not published in the ECR).
- 26.
- 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.
- 27.
- 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.
- 28.
- By order of 20 June 1997 he allowed an application for confidential treatment
submitted by the applicant in this case which related to a document produced in
response to a written question from the Court.
- 29.
- 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.
- 30.
- The parties in the cases referred to in paragraph 26 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
- 31.
- The applicant claims that the Court should:
annul Article 1 of the Decision in so far as it concerns the applicant;
annul or reduce the fine;
order the Commission to pay the costs.
- 32.
- The Commission contends that the Court should:
dismiss the application;
order the applicant to pay the costs.
The application for annulment of the Decision
- 33.
- In support of its head of claim seeking annulment of the Decision in so far as it
concerns itself, the applicant relies on four pleas alleging (a) that SBS cartonboard
should have been excluded from the scope of the Decision; (b) that there is no
proof of its participation in an infringement of Article 85(1) of the Treaty; (c)
infringement of Article 190 of the Treaty; and (d) infringement of its rights of
defence.
- 34.
- The Court considers that it should begin by examining the second plea.
The plea that there is no evidence of the applicant's participation in any cartel
Arguments of the parties
Arguments of the applicant
- 35.
- The applicant submits that the Commission has not proved that it participated in
any cartel.
- 36.
- First it disputes the assertion in point 121 of the Decision that appendix 102 to the
statement of objections, a note obtained from Rena allegedly relating to a meeting
of the NPI at Arlanda airport (Sweden) on 3 October 1988, is evidence of its
participation in the unlawful practices referred to in the Decision. Relying on an
invitation (appendix 101 to the statement of objections) to an extraordinary board
meeting of the NPI, the Commission concluded that this note concerned that
meeting. However, there is nothing in the note to show that it related to the
meeting referred to in that invitation.
- 37.
- The NPI board meeting of 3 October 1988 was called because Iggesunds Bruk AB
('Iggesunds Bruk), a producer of SBS cartonboard and currently part of the
MoDo group, was planning to cease its participation in and any financing of the
'pro-carton activities. Prices were not discussed at that meeting. The reference
to 'pro-carton activities in appendix 102 ('how to market and to whom) does not
show that the extraordinary meeting of the NPI was involved, because it does not
pertain to what was to be discussed at the meeting in question.
- 38.
- Furthermore, if appendix 102 to the statement of objections were to be considered
to contain information relating to price increases in the United Kingdom in April
1989, such information does not relate to the applicant. The prices of the
cartonboard manufactured by the applicant were not increased in the United
Kingdom in April 1989 but in January 1989. Moreover, the reference to a price
increase for cartonboard intended for the cigarette industry does not relate to the
applicant either, because, first, it has not supplied cartonboard to that industry
since 1987 and, second, the applicant's cartonboard price was significantly higher
than that referred to in the note in question. Nor is SBS cartonboard expressly
referred to in appendix 102.
- 39.
- Second, the applicant disputes the assertion in the first paragraph of point 97 of the
Decision to the effect that appendix 133 to the statement of objections, a note
found at Iggesund Board Sales Ltd (also of the MoDo group), is 'clearly indicative
of collusion on pricing between the producers of coated board for graphics
purposes ... on the occasion of the price increase in the United Kingdom effective
on 2 April 1990.
- 40.
- The author of the note has explained that it was a note of a telephone conversation
between two employees of Iggesund and that the reference to 'presidents/Enso
was to the practice of some competitors of sending senior staff from their head
offices in the United Kingdom for the purpose of negotiating prices. That practice,
which is still adopted, is necessary for the most important customers, for whom
price negotiation is regarded as a matter of prime importance. The reference to
'presidents/Enso does not therefore constitute evidence of any collusion between
undertakings, and in particular any involving the applicant.
- 41.
- Furthermore, the Commission's allegations of collusion on pricing between the
applicant and the other producers referred to in appendix 133 to the statement of
objections are not supported by table F annexed to the Decision relating to price
increases in April 1990 in the United Kingdom. Both the announcement and the
implementation of the applicant's price increase were made more than one week
after the announcements and actual increases of the other producers concerned.
- 42.
- Third, appendix 44 to the statement of objections, a note in the diary of a
Feldmühle employee (of the Stora group), does not reveal collusion on prices and
production control between Feldmühle and other producers, including the
applicant, in the context of the January 1987 price increase in the United Kingdom.
- 43.
- The only reference to the applicant's prices in that note ('Enso 86 same prices as
85) concerns a matter of public knowledge at the beginning of 1987, the period
to which the note is said to relate. Moreover, the applicant increased its prices in
the United Kingdom by UKL 10 per tonne on 1 December 1986, which is
inconsistent with the Commission's assertions.
- 44.
- The reference to the applicant's order backlog ('circa two weeks' activity) does
not show collusion. Two weeks' orders in hand are normal at the beginning of the
year and that state of affairs is obvious to any person with knowledge of the sector.
Customers faced with a price increase from their usual supplier will normally ask
other producers to indicate their delivery period and will then use the information
obtained in order to refuse or to delay the announced price increase. Information
on the orders in hand of the various producers is therefore rapidly available to the
whole sector.
- 45.
- Fourth, the applicant contests the Commission's assertion that proof of its
participation in collusion on prices is provided by the 'virtually exact
correspondence of its price increases with the figures contained in appendix 111
to the statement of objections, a price list obtained from Rena. Rena has
explained that it did not receive the list from the NPI, but that it had been given
to it by another Scandinavian producer during a meeting. As it is an undated list
obtained from an unknown Scandinavian producer, it cannot therefore be used as
evidence against the applicant. Moreover, since the applicant announced its price
increases in the United Kingdom and in Germany six days and 21 days respectively
after Iggesunds Bruk, its actual pricing conduct confirms that it did not participate
in collusion on prices.
- 46.
- Fifth, the applicant disputes the accuracy of Stora's belief (appendix 38 to the
statement of objections) that Finnboard informed it of the outcome of the PWG
meetings. The applicant has never been a member of Finnboard and Finnboard
has never acted as its representative. Any links between Finnboard, the PWG, the
JMC and the NPI are irrelevant to the question whether Finnboard informed the
applicant of the outcome of the PWG meetings. Moreover, Stora never stated that
the information was communicated and discussed in the context of the NPI, as the
Commission asserts.
- 47.
- Furthermore, the Commission has not taken the appendix in question to be
evidence of a link between the PG Paperboard and several other producers
mentioned by Stora. Amongst the undertakings allegedly informed of the outcome
of the PWG meetings, Stora mentioned not only Strömsdahl, a Finnish member of
the NPI, but also two Spanish companies not covered by the Decision.
- 48.
- Sixth, the applicant disputes that, because it was a member of the NPI, it received
information on the meetings of the PWG or of the Economic Committee. Nor can
it be assumed that it received such information.
- 49.
- Seventh, the Commission's assertion that the PC was carrying on an unlawful
activity before 1987 (point 35 of the Decision) is unfounded. That assertion is based
on an incorrect interpretation of Stora's statements (appendix 39 to the statement
of objections).
- 50.
- Contrary to the assertion in point 41 of the Decision, the minutes of the PC
meetings are not misleading. The applicant's representatives in the PC meetings
have confirmed that no discussion of prices took place in their presence.
- 51.
- Nor can the note found at Mayr-Melnhof's sales agent (appendix 61 to the
statement of objections) be regarded as proof that prices were discussed in the PC.
The Commission stated in the statement of objections that it did not even know
whether the note concerned a meeting of the PC.
- 52.
- Eighth, the applicant disputes the accuracy of the allegation in the Decision (points
38 and 41) that, first, the PWG reported to the PC regarding the precise state of
supply and demand and, second, that managing directors attending the meetings
of the PC were informed of pricing decisions adopted by the PWG and of
information to be passed on to their sales departments for the purpose of
implementing the price initiatives. That allegation is not proved by reference to
Stora's statement alone.
- 53.
- The four examples on which the Commission relies in its defence in order to
establish a link between the PC meetings, the PWG and the applicant's pricing
behaviour do not prove that allegation. It is impossible to establish any link
between the PC meetings in which the applicant participated and its pricing
behaviour.
- 54.
- Lastly, the applicant contends that the documents relating to price increases are not
evidence of its participation in an infringement of Article 85(1) of the Treaty. On
the contrary, those documents show that it did not participate in any infringement.
An overall comparison between its own price increases and those of Iggesunds
Bruk and of Finnboard reveals significant differences in the dates and amounts of
the price increases.
- 55.
- The relative similarity between Iggesunds Bruk's prices and those of the applicant
in regard to some price increases can be explained by the normal workings of the
market. Because of the way in which the market works, the opportunity for
undertakings to increase their prices arises at approximately the same time. The
applicant's price increases are therefore the result either of pressure from
production costs or of price movements on the market. Moreover, when it learned
from its customers and/or the trade press that another producer had announced a
price increase, the applicant would try to exploit that announcement in order to
increase its own prices if it believed that the market could accept such an increase.
- 56.
- In that context, the applicant observes that parallel conduct cannot be regarded as
furnishing proof of collusion unless collusion constitutes the only plausible
explanation for such conduct (judgment in Joined Cases C-89/85, C-104/85,
C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and
Others v Commission [1993] ECR I-1307, paragraph 71). Even assuming that the
Commission had evidence other than the price documentation (which the applicant
denies), it would still be necessary to examine the various similarities in prices in
order to establish whether they could be explained otherwise than by collusion.
- 57.
- Lastly, the applicant carries out an extremely detailed analysis of the alleged
concerted price initiatives in which it is considered to have participated. It
concludes that its analysis also shows that it did not participate in any collusion,
since it reveals considerable differences in the dates and amounts of each of price
increase.
Arguments of the Commission
- 58.
- The Commission states that it found that a single infringement had been committed
consisting of a 'common industry plan to restrict competition, involving price
increases, an understanding on market shares, concerted measures to control supply
of the market and an exchange of commercial information to support those actions
(point 116 et seq. of the Decision). Moveover, all the addressees of the Decision
had participated in that infringement which was constituted by the 'price before
tonnage scheme (point 129 et seq. of the Decision) applied by all the producers.
In consequence, the fact that a particular producer did not take part in one or
other meeting or did not carry out every action of the cartel is irrelevant.
- 59.
- The applicant cannot attempt to compartmentalise each piece of evidence relied
on against it and claim that each item does not prove anything in itself. It is
necessary to consider all the evidence of participation in a cartel as a whole and to
determine whether there are sufficient concordant indications to support theCommission's allegations (judgment in Case 48/69 ICI v Commission [1972] ECR
619). All the Commission's arguments should be understood in the light of those
general considerations, as it has never asserted that each item of evidence relied
upon as against the applicant sufficed to prove all the objections raised against it.
- 60.
- As regards the applicant's arguments on each item of evidence, the Commission
maintains, first, that appendix 102 to the statement of objections (see paragraph 36
above) confirms that the applicant participated in the infringement.
- 61.
- It states that the invitation to a meeting of the NPI on 3 October 1988 at Arlanda
airport (appendix 101 to the statement of objections) was addressed inter alios to
Mr Paronen (Enso-Gutzeit) and to Mr Kordal (Rena) and that appendix 102 to the
statement of objections contains the notes taken by Mr Kordal at that meeting.
Moreover, the applicant accepts that Mr Paronen was present at a meeting at
Arlanda airport on 3 October 1988 in order to discuss the 'pro-carton activities.
There is a reference to 'pro-carton activities in the note in question.
- 62.
- Even though the note in question does not contain any reference to SBS
cartonboard as such, it is nevertheless the case that the Ensocoat grade
manufactured by the applicant competes directly with certain GC 1 cartonboard
grades intended for graphic purposes. The applicant increased its prices in some
countries in April 1989 (table D annexed to the Decision) and did not need to
increase its prices in the United Kingdom because it had already increased them
in that country with effect from 23 January 1989 by UKL 50, the exact amount
referred to in appendix 102 to the statement of objections. That increase was
postponed until April 1989 for most customers.
- 63.
- Lastly, Iggesunds Bruk increased its prices in the United Kingdom by the same
amount with effect from 9 January 1989.
- 64.
- Second, as regards appendix 133 to the statement of objections (paragraph 39
above), Iggesund's contrived explanation of the meaning of the word 'presidents
in the note in question is implausible, because it is not confirmed by the written
evidence before the Commission and it is in fact incompatible with it.
- 65.
- The evidence confirms the assertion that appendix 133 to the statement of
objections shows that collusion took place in regard to the April 1990 price increase
for graphic grades in the United Kingdom. The differences pointed out by the
applicant concerning the undertakings which announced the price increase and the
dates of those announcements are not inconsistent with the existence of collusion.
Agreement was reached in the PWG, for each price initiative, on the order in
which the price increases would be announced by the members of the PWG,
whereas the other undertakings could choose the moment when they announced
their own increase (points 72 and 73 of the Decision). Consequently, the nature
of the April 1990 price increase is cogent proof of the existence of collusion.
- 66.
- The fact that the author of appendix 133 to the statement of objections regularly
attended meetings of the Paper Agents Association (hereinafter 'the PAA) and
in particular those at which the April 1990 price increase was planned, and the fact
that the date of the note is close to that of the relevant JMC meeting, confirm that
the note can be used as evidence of the collusion. In that context it is irrelevant
that the applicant did not participate in JMC meetings and that it did not
participate in the PAA meetings in question. Although it did not participate in all
the cartel's activities, the applicant had a role in the scheme as a whole (point 121
of the Decision).
- 67.
- The striking similarities between the prices referred to in appendix 133 to the
statement of objections and those referred to in other documentary evidence
(appendices 113 and 130 to the statement of objections) also confirm that the
Commission's allegations relating to collusion on the April 1990 price collusion are
well founded.
- 68.
- All the producers referred to in appendix 133 to the statement of objections
increased their list prices for the United Kingdom by similar or identical amounts.
The price increases in the United Kingdom ranged from UKL 50 to UKL 60 for
the different grades (documents F-5-6, F-12-7 to F-12-9 and F-3-2 of the pricing
annexes) and the decisive point there is a close correspondence between the
percentage price increases of the applicant, Finnboard and Iggesunds Bruk for the
relevant grades. Finnboard increased its prices for graphic grades by 8.5%, namely
the same increase as the applicant, and Iggesunds Bruk increased its prices by 8%.
The similarities in the price increases are even more striking in other years, as the
applicant and Iggesunds Bruk increased their prices by UKL 50 in October 1988
and by UKL 60 in October 1989. As regards the latter price increase, it should
also be borne in mind that the applicant's price increases corresponded to those set
out in appendix 111 to the statement of objections (paragraph 72 et seq. below).
- 69.
- Third, as regards appendix 44 to the statement of objections, the Commission states
that the applicant's name figures on a list of a number of producers, together with
information on pricing, order backlogs and downtime, information which cannot be
considered to have been public knowledge. In those circumstances, it is of little
significance that it was well known that the applicant's prices in 1986 were the same
as those for 1985 and that the reference to the applicant's prices might be
considered to be innocent in itself.
- 70.
- The applicant actually increased its prices in December 1986, at the same time as
the other producers of GC cartonboard graphic grades and of SBS cartonboard.
The proof of collusion provided by the diary note is therefore confirmed by the
price increases applied by the relevant producers.
- 71.
- Nor can the level of the applicant's orders in hand, referred to in appendix 44 to
the statement of objections, be considered to be public knowledge.
- 72.
- Fourth, as regards the price list obtained from Rena (appendix 111 to the
statement of objections), the Commission observes that, according to Rena, that list
was given to its then managing director at meetings in Stockholm with other
Scandinavian producers on the occasion of an NPI meeting (point 80 of the
Decision). The list was found amongst documents relating to the NPI and Rena
was unable to state exactly where and from whom it had obtained the list, although
the individual concerned did not think that he had received it from the NPI itself.
- 73.
- That price list is cogent proof of collusion, because the applicant's price increases
on all markets in October 1989 were identical in almost all cases to those for
coated SBS cartonboard referred to in that list (see table E annexed to the
Decision). The price increases announced by the other producers also
corresponded to those in the list. In those circumstances, the differences
highlighted by the applicant between the dates of the price increase announcements
are irrelevant.
- 74.
- Fifth, the Commission submits that Stora's statement (appendix 38 to the statement
of objections) that Finnboard informed the applicant of the outcome of the PWG
meetings is additional evidence of its participation in the cartel. Finnboard's
representative was chairman of the NPI, of which the applicant was a member,
and he represented the NPI in the PWG and the JMC. He even presided over the
PWG from May 1988. Moreover, Stora's understanding of the manner in which
information was passed on and discussed in the context of the NPI is confirmed by
other evidence, such as appendix 102 to the statement of objections (see paragraph
60 et seq. above), the handing over to Rena of price lists at NPI meetings, and
Fiskeby's admission that this was in fact the practice (point 46 of the Decision).
- 75.
- The Commission states that it is not linking the applicant to the cartel on the basis
of its membership of a trade association alone.
- 76.
- Sixth, as regards the applicant's membership of the NPI, the Commission observes
that, although it cannot be concluded from an undertaking's membership of a trade
association that the undertaking is aware of all the information in that association's
possession, in the present case there is ample evidence that the applicant, a
member of the Board and Marketing Committee of the NPI, did obtain relevant
information and acted upon it.
- 77.
- Seventh, the Commission maintains its assertion in the Decision, based on Stora's
statements, to the effect that the meetings of the PC had an anti-competitive
object. The anodyne nature of the minutes of the PC meetings is irrelevant,
because the members of a cartel obviously try to conceal its existence. However,
in the present case, the real nature of the discussions in the PC is shown by Stora's
statements. Those statements are confirmed, first, by the statement of Mr Roos
(a former manager in Feldmühle, of the Stora group) supplied to the Commission
by Weig and, second, by the note found at Mayr-Melnhof's agent (appendix 61 to
the statement of objections).
- 78.
- Eighth, the Commission rejects the applicant's assertion that there is no proof that
the outcome of the PWG meetings was communicated to the other undertakings
at meetings of the PC. According to Stora, the PC discussed the situation
regarding prices and over-capacity. From 1986, the PWG informed the PC of the
precise state of supply and demand on the market and of the measures to be
adopted in order to regulate it. The participants in the PC meetings were
therefore informed of the decisions adopted by the PWG, in particular in regard
to pricing, and of the instructions to be given to their sales agents in order to
implement those decisions. In the light of Stora's statements, the applicant cannot
therefore claim that it never participated in discussions on pricing in the PC.
- 79.
- Stora's explanations are corroborated by the statement of Mr Roos (see paragraph
77 above). It is clear from his statement that when a PC meeting followed a PWG
meeting, the content of the discussions in the latter meeting was reported to the
PC.
- 80.
- The Commission gives examples of the relationship between certain meetings of the
PC, of the PWG and the applicant's pricing behaviour. The finding that the
applicant was informed of the pricing decisions adopted by the PWG is confirmed
by the price increases announced and implemented by the applicant following the
PC meetings.
- 81.
- Lastly, the Commission observes that the precise date on which a proposed price
increase took effect might vary, depending on the customer, the product or the
national market in question (point 72 of the Decision). That date might even vary
from one undertaking to another, because one of them led the price increase
initiative and the others followed (point 73 of the Decision). It is therefore
inevitable that an analysis of the price increases will reveal differences between the
undertakings.
- 82.
- The judgment in Ahlström Osykeyhtiö and Others v Commission, cited above, on
which the applicant relies, is not relevant in this case. That judgment solely
concerned the question whether parallel pricing could in itself constitute proof of
collusion. By contrast, in the present case, the price-fixing activities of the
members of the PG Paperboard must be considered in the light of the evidence as
a whole and, since there is ample evidence of collusion, the similarities in prices
confirm that evidence and cannot be explained by reference to mere parallelism.
- 83.
- The applicant's meticulous comparison between its own price increases and those
of Iggesunds Bruk and of Finnboard reveals only that there are minor differences
between the dates of the announcements.
Findings of the Court
- 84.
- According to Article 1 of the Decision, the undertakings referred to in that
provision infringed Article 85(1) of the Treaty by participating, during the relevant
period, in an agreement and concerted practice whereby the suppliers of
cartonboard in the Community '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 and '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.
- 85.
- In the Decision the Commission sets out the evidence on which it relied in order
to prove that the applicant participated in the collusion referred to in the operative
part of that decision.
- 86.
- Point 121 of the Decision states:
'[... The applicant] only went to President Conferences, and was the sole producer
which never attended any meetings of the JMC. The Commission does not
however rely simply as proof of its participation in the infringement on its
attendance at President Conferences. Further proof of its involvement is provided
inter alia by its membership of both the Board and the Marketing Committee of
the NPI, a body whose role in collusion is amply demonstrated; its attendance at
the Arlanda meeting noted by Rena (recital 58); the various references in the
Iggesund note on the price increase of April 1990 (recital 97); and its own
commercial documentation which (in so far as it is available) shows not only a
continuing pattern of price increases identical to those of the other major SBS
producer, Iggesunds Bruk, but also, for October 1989, a virtually exact
correspondence to the NPI price list obtained from Rena (recital 80). Thecumulative effect of these different items of both direct and circumstantial evidence
is such that there is no reasonable doubt as to Enso-Gutzeit's involvement in a
system of collusion.
- 87.
- In order to assess whether the Commission has proved the applicant's participation
in an infringement of Article 85(1) of the Treaty in respect of the period from mid-1986 to April 1991, the Court will consider, first, the object of the meetings of the
PC, the body in which the applicant participated during the period in question;
second, the Commission's evidence referring directly to the applicant; third, the
question whether the applicant participated in the cartel in question as a member
of the NPI and; fourth, the applicant's actual pricing behaviour.
The object of the PC meetings
- 88.
- There is no dispute that the applicant participated regularly in meetings of the PC
(see table 3 annexed to the Decision). However, the Commission does not advance
any evidence as to the object of the meetings in which the applicant is proved to
have participated. Consequently, when it refers to that participation as evidence
of the undertaking's participation in an infringement of Article 85(1) of the Treaty,
it necessarily bases its assertion on the general description, set out in the Decision,
of the object of the meetings of that body and on the evidence put forward in the
Decision in order to support that description.
- 89.
- In that regard, the description of the objectives and activities of the PC, set out
specifically in points 41 to 43 of the Decision, is based on Stora's statement
(appendix 39 to the statement of objections). The Commission submits that Stora
has admitted that 'the President Conference did in fact discuss collusive pricing
(point 31, third paragraph; see also point 75, second paragraph, of the Decision).
That admission is said to be corroborated by a note discovered at Mayr-Melnhof's
United Kingdom sales agent (appendix 61 to the statement of objections).
Furthermore, the managing directors who participated in meetings of the PC were
informed of the decisions taken by the PWG and of the instructions to be given to
their sales departments in order to implement the price initiatives (point 41, first
paragraph, of the Decision). It is also stated that the PWG submitted to the PC
its evaluation of 'the precise state of supply and demand on the market and the
measures to be taken to bring order to the market (point 38, first paragraph, of
the Decision).
- 90.
- Lastly, according to the first paragraph of point 53 of the Decision, a confidential
note dated 28 December 1988 sent by the marketing manager responsible for
Mayr-Melnhof group sales in Germany (Mr Katzner) to the managing director of
Mayr-Melnhof in Austria (Mr Gröller) (appendix 73 to the statement of objections)
confirms that 'at the end of 1987 agreement had been reached in the two
Presidents' groups on the linked issues of volume control and price discipline.
- 91.
- The Commission bases its assertion of the anti-competitive object of the PC
meetings primarily on Stora's statements. However, the correctness of that
assertion is contested by several undertakings, including the applicant, which
participated in the PC meetings. In consequence, unless supported by other
evidence, Stora's statements concerning the PC's role cannot be regarded as
adequate proof of the object of that body's meetings.
- 92.
- The document in appendix 61 to the statement of objections (paragraph 68 above)
relates to a meeting held in Vienna on 12 and 13 December 1986. It contains the
following:
'UK pricing
Recent Fides meeting included the representative of Weig stating that they thought
9% too high for the United Kingdom and were settling at 7%! Great
disappointment as it signals a negotiating level for everybody else. UK pricing
policy will be left to RHU with the support of [Mayr-Melnhof] even if it means a
temporary reduction in tonnes while we attempt (and be seen to attempt) to pursue
9%. [Mayr-Melnhof/FS] maintain a growth policy for UK but reduced returns are
serious and we have to fight to regain control on pricing. [Mayr-Melnhof] accept
that it doesn't help that they are known to have increased their tonnes in Germany
by 6 000!
- 93.
- According to Mayr-Melnhof (reply to a request for information, appendix 62 to the
statement of objections), the Fides meeting referred to at the beginning of the
passage quoted is probably the PC meeting of 10 November 1986. Table 3
annexed to the Decision reveals that the applicant was not present at that meeting.
- 94.
- The document in question shows that Weig reacted to an initial level of price
increase by indicating its future pricing policy in the United Kingdom.
- 95.
- It cannot, however, be considered to prove that Weig reacted in relation to a
particular level of price increase agreed between the undertakings within the PG
Paperboard before 10 November 1986.
- 96.
- The Commission does not rely on any other evidence to that effect. Moreover,
Weig's reference to a price increase of '9% may be explained by the price
increase in the United Kingdom announced by Thames Board Ltd on 5 November
1986 (annex A-12-1). That announcement was made public shortly afterwards, as
is clear from a press cutting (annex A-12-3). Lastly, the Commission has not
produced any other document capable of constituting direct evidence that
discussions on price increases took place at meetings of the PC. In those
circumstances, it cannot be ruled out that Weig's remarks, as related in appendix
61 to the statement of objections, were made on the fringe of the meeting of the
PC on 10 November 1986, as Weig repeatedly submitted at the hearing.
- 97.
- As regards appendix 73 to the statement of objections, on which the Commission
relies in the Decision (paragraph 90 above), the Court points out that the author
of that document refers by way of introduction to the closer cooperation at
European level within the 'presidents' grouping ('Präsidentenkreis). That
expression was interpreted by Mayr-Melnhof as a general reference to both the
PWG and the PC, that is to say, without reference to a specific event or meeting
(appendix 75 to the statement of objections, point 2.a).
- 98.
- Although there is no dispute in the context of this case that appendix 73 to the
statement of objections is corroborative evidence of Stora's statements as to the
existence of collusion on market shares between the undertakings allowed to
participate in the 'Presidents' grouping and on collusion on downtime between
those same undertakings, the Commission has not, however, adduced any other
evidence to confirm that the object of the PC was, inter alia, to discuss collusion on
market shares and control of production volume. Consequently, the expression
'Presidents' grouping ('Präsidentenkreis) used in appendix 73 to the statement
of objections cannot, despite the explanations supplied by Mayr-Melnhof, be
construed as referring to bodies other than the PWG.
- 99.
- Lastly, Stora's allegation that one of the PC's functions was to inform the managing
directors of decisions taken by the PWG and of the instructions to be given to their
sales departments in order to implement those pricing initiatives (appendix 39 to
the statement of objections, point 8) cannot be considered to be corroborated by
the statement of 22 March 1993 of Mr Roos, a former member of the management
of Feldmühle.
- 100.
- In his statement, which was sent to the applicant during the administrative
procedure and to which the Commission refers (see paragraph 77 above), Mr Roos
indicates, inter alia, as follows: 'The content of the discussions in the PWG was
communicated to the undertakings not represented in that group at the
immediately following Presidents' Conference, or, if there was no immediate
Presidents' Conference, at the JMC. That document, upon which no express
reliance was placed in the Decision to support the Commission's assertions as to
the object of the PC meetings, cannot, on any view, be considered to constitute
evidence supplementing Stora's statements. As those statements are a synthesis of
the replies submitted by each of the three undertakings, including Feldmühle,
owned by Stora during the period of the infringement, the former member of the
management of Feldmühle necessarily constitutes one of the sources for the
statements by Stora itself.
- 101.
- Having regard to the foregoing, the Court considers that it has not been proved
that, because the applicant was present at meetings of the PC, it participated in an
infringement of Article 85(1) of the Treaty.
The direct evidence
- 102.
- In order to prove that the applicant participated in an infringement of Article 85(1)
of the Treaty the Commission relies, in the Decision, on two documents which
expressly refer to the applicant. According to the Commission, those documents,
appendices 44 and 133 to the statement of objections, are direct evidence of the
applicant's participation in collusion with an anti-competitive object. They will be
considered separately.
- 103.
- As regards, first of all, appendix 44 to the statement of objections, which consists
of a handwritten note in the desk diary of an employee of Feldmühle (of the Stora
group) on the pages for 15 to 17 January 1987, the Commission considers that this
constitutes 'further evidence of concertation (third paragraph of point 75 of the
Decision) on the January 1987 price increase in the United Kingdom.
- 104.
- However, that note does not have the probative value accorded it by the defendant.
It is in the form of handwritten comments which refer to several cartonboard
producers and data generally historical on prices and downtime. However, it
is not possible to determine the origin of the note by reference to the data which
it contains, or whether it was written at a meeting or in the course of a telephone
conversation, or whether it consists of comments intended to act as an aide-mémoire for its author.
- 105.
- Even assuming that the note relates to a meeting, there is no identification of that
meeting, so the possibility cannot be ruled out that it concerns an internal
Feldmühle meeting. Moreover, since the note probably dates from mid-January
1987, it does not prove that the application of the price increase 'TBM included
was the result of collusion, given that the note was possibly only an observation.
According to table A annexed to the Decision, Thames Board Mills Ltd ('TBM)
had announced an increase in its prices in the United Kingdom on 5 November
1986 (see also annex A-12-1).
- 106.
- Some indications in the note are even such as to contradict the Commission's claim
that the note confirms the existence of collusion in regard to the decision to
increase prices in the United Kingdom. In particular, the statement that the
director of Feldmühle had declared that he was 'sceptical of Kopparfors (of the
Stora group) and had regarded Mayr-Melnhof as 'irresponsible ('ohne
Verantwortung) cannot be regarded as supporting the Commission's contention.
The position is the same in regard to the statement: 'Finnboard: Preisautonomie
auch f. Tako ['Finnboard: price autonomy also for Tako].
- 107.
- Furthermore, the Court observes that, as regards the applicant, the note indicates:
'Enso production below plan in 1986
Enso 86 same prices as 85 [...]
circa 2 weeks activity.
- 108.
- The fact that this information concerning the applicant is contained in a document
created, probably in the middle of January 1987, by a competitor cannot constitute
proof that the applicant participated in collusion between undertakings. That
information could have been obtained from customers of Feldmühle.
- 109.
- The only information concerning the applicant which is not clearly historical,
namely that relating to the state of its order backlog, is not so precise that it must
be regarded as emanating from the applicant. In that context, the Court points out
that the Commission has challenged the applicant's prima facie plausible claim
that the customers of cartonboard manufacturers generally have information as to
the state of their suppliers' order backlogs, but has not substantiated its challenge.
- 110.
- Lastly, the applicant, relying on a document setting out the changes in the prices
applied to one of its United Kingdom customers, asserts that it increased its prices
of SBS cartonboard in the United Kingdom in December 1986 by UKL 10 per
tonne. That price increase is therefore well below that allegedly agreed between
the undertakings which met in the PG Paperboard (see point 74, last paragraph,
of the Decision). As the Commission has not adduced any evidence to refute that
assertion, the Court considers that there is no basis whatsoever, as against the
applicant, for the Commission's allegation that appendix 44 to the statement of
objections is additional evidence of collusion on the January 1987 price increase in
the United Kingdom.
- 111.
- Having regard to the foregoing considerations, appendix 44 to the statement of
objections does not prove that the applicant participated in an infringement of
Article 85(1) of the Treaty.
- 112.
- Next, as regards appendix 133 to the statement of objections, a document
discovered at Iggesund Board Sales Ltd, the Commission explains (point 97, first
and fifth paragraphs, of the Decision):
'Another note found at Iggesund Board Sales during the investigations is clearly
indicative of collusion on pricing between the producers of coated board for
graphics purposes (which includes both SBS and high quality GC grade) on the
occasion of the price increase in the United Kingdom effective on 2 April 1990.
In addition to a number of jottings relating to the amount of the price increase, tworeferences to the Presidents and a reference to Enso/Finnboard/Strömsdahl,
the note contains a list of names of senior marketing managers or directors from
Iggesund, Kopparfors [of the Stora group], Enso-Gutzeit and Finnboard. These
producers are the main suppliers of graphic grades in the United Kingdom.
[...]
There are a number of marked similarities between the prices for the United
Kingdom shown in this note, those in the [Mayr-Melnhof] note of the JMC of 11
January 1990 (recital 84) and the [Paper Agents Association] note of 23 January
1990 made by Kopparfors [of the Stora group].
- 113.
- The Court observes that, according to Iggesunds Bruk, the document was drawn
up between 3 and 14 January 1990 (point 97, fourth paragraph, of the Decision).
That period is therefore prior to the dates on which Iggesunds Bruk and the
applicant announced a price increase to enter into force in April 1990, namely on
24 January and 9 February 1990 respectively.
- 114.
- That undated appendix consists of a sheet of paper, apparently divided into
three parts, containing handwritten notes set out in a particularly disorganised
manner. The words and figures written on that sheet, such as 'SBS, 'Presidents,
'Anything Goes, 'Buddy, '780, '805/850, '£55/850, '£815/35 are not
obviously connected. Looking at that sheet, it is not possible to know whether the
notes on it were taken at a meeting with competitors or during a telephone
conversation with one of them. They might therefore be notes of a historical
nature intended to constitute an aide-mémoire. Moreover, it is impossible to
establish whether all the words and figures were noted down on the same day.
- 115.
- In those circumstances, appendix 133 to the statement of objections cannot be
regarded as proof of the applicant's participation in collusion on the price increase
implemented in April 1990.
- 116.
- The use of the term 'Presidents, the reference to 'Enso/Finnboard/Strömsdahl
and the fact that the document contains a list of names of managers or directors
of Iggesunds Bruk, Koppafors, Enso-Gutzeit and Finnboard, are not in themselves
evidence to support the Commission's allegation that the document shows collusion
on pricing between the undertakings mentioned in it. Even assuming that the word
'Presidents must be regarded as a reference to the PC, which is disputed both by
the applicant and by MoDo (point 97, second paragraph, of the Decision), it
suffices to point out that the Commission has not demonstrated that the meetings
of that body had an anti-competitive object.
- 117.
- The information contained in the document regarding prices and price increases
for the various grades of cartonboard (GC1, GC2 and SBS) do not support the
Commission's allegation either.
- 118.
- Although it is true that the document does indeed contain several figures which
might refer to the prices of the various grades of cartonboard and to the planned
price increases, it is nevertheless the case that no precise figure can be linked to
the prices or price increases of a specific undertaking. More particularly, appendix
133 to the statement of objections does not contain the slightest indication which
could be understood as a reference to the United Kingdom price increase of UKL
69 per tonne announced by the applicant on 9 February 1990. That amount, which
the applicant has specified in its written pleadings to this Court, has not been
disputed by the Commission.
- 119.
- Moreover, the differences between the price increases announced by Iggesunds
Bruk and by the applicant respectively are so wide that they cannot be reconciled
with the Commission's assertion that '[t]he suppliers of graphics grade cartonboard
referred to in the Iggesund note all increased their list prices for the United
Kingdom by similar or identical amounts (point 97, sixth paragraph, of the
Decision).
- 120.
- The amount of the price increase of UKL 69 per tonne for SBS cartonboard
announced by the applicant on 9 February 1990 differs from that announced by
Iggesunds Bruk on 24 January 1990, which amounted to UKL 50 per tonne. That
difference is so wide that those amounts cannot be categorised as 'similar or
'identical.
- 121.
- Furthermore, although the Commission referred in the Decision to the amounts of
the announced price increases, it has claimed in its written pleadings to the Court
that the amount of the price increase announced by Iggesunds Bruk in the United
Kingdom corresponded to an 8% price increase and that this increase ought to be
regarded as 'similar to the 8.5% price increase announced by the applicant.
However, irrespective of whether a comparison can be made between price
increases expressed as a percentage, the substance of the Commission's assertion
is inaccurate. According to the pricing documentation annexed to the statement
of objections (appendix F-12-6), Iggesunds Bruk's list price for SBS cartonboard
was, prior to the increase in question, UKL 800 per tonne. Its price increase of
UKL 50 per tonne for SBS cartonboard therefore corresponds to a 6.25% price
increase. It follows that, even expressed as a percentage, the price increases in
question cannot be characterised as 'similar or 'identical.
- 122.
- Lastly, the Commission's allegation that there are 'marked similarities between
the prices in appendix 133 to the statement of objections and those appearing, first,
in a Mayr-Melnhof note of 11 January 1990 relating to a JMC meeting (appendix
113 to the statement of objections) and, second, in a Kopparfors note of 23 January
1990 relating to a meeting of the Paper Agents Association (appendix 130 to the
statement of objections) is irrelevant as regards the applicant, because it never
attended meetings of those bodies.
- 123.
- Moreover, the document in question contains several handwritten remarks which
have no connection with the prices of cartonboard products.
- 124.
- Having regard to those factors, the Court finds that appendix 133 to the statement
of objections has no probative value as evidence of the applicant's participation in
an infringement of Article 85(1) of the Treaty.
- 125.
- The Court therefore finds that the documents which expressly mention the
applicant do not constitute evidence of its participation in an infringement of
Article 85(1) of the Treaty.
Membership of the NPI
- 126.
- In order to prove the applicant's participation in the infringement, the Commission
states in point 121 of the Decision that the applicant was a member 'of both the
Board and the Marketing Committee of the NPI, a body whose role in collusion is
amply demonstrated.
- 127.
- Representatives of the NPI are alleged to have participated in the meetings of the
PC and of the Economic Committee (point 42, second paragraph, and tables 3 and
6 of the Decision). As the NPI was not separately represented in the PWG and
the JMC, the Commission submits that Finnboard's representatives in those bodies
participated in them as representatives of the NPI and also in their own right, and
that the applicant was informed by Finnboard of the decisions taken in those
bodies (see, in particular, points 38, fourth paragraph, and 46, first paragraph, of
the Decision). As regards the Economic Committee, the Commission appears to
submit that the applicant was informed of the outcome of the meetings of that
body by the representative of the NPI who had participated in it (point 50, fourth
paragraph, of the Decision).
- 128.
- The Court points out, first of all, that the Commission has expressly acknowledged
in its pleadings that even though it considers that it has demonstrated the role
played by the NPI in the infringement, the applicant's membership of the NPI
alone does not constitute adequate proof of its participation in the infringement
found. Consequently, the Commission itself considers that it is necessary to show
that the decisions taken in the PWG, the JMC or the Economic Committee were
actually communicated to the applicant by a representative of the NPI or by the
representative of a member undertaking of the NPI who had also participated in
the meetings of those bodies. In that context, the Court points out that the
Commission did not consider that it could be inferred from their membership of
the NPI alone that the other members of that association participated in the
infringement found. Rena, for example, was considered to have taken part in the
infringement found in Article 1 of the Decision only from March 1988, although it
was a member of the NPI throughout the period covered by the Decision.
- 129.
- In those circumstances, the evidence on which the Commission relies to support its
allegation that the applicant was informed of decisions taken in the PWG, the JMC
or the Economic Committee, namely appendices 38, 102 and 111 to the statement
of objections, will be considered in turn.
- 130.
- Appendix 38 to the statement of objections, a statement by Stora, provides
information concerning the producers which were informed of the outcome of the
PWG meetings:
'Scandinavian producers were usually informed of the outcome by the Scandinavian
representative who was the Finnboard representative. Kopparfors was informed
of the outcome in this way. It is the Stora Producers' understanding that other
Scandinavian producers informed were [Rena] (Norway), [Strömsdahl] and Enso
(both Finland).
- 131.
- As is clearly apparent from the wording of that statement, Stora is merely
indicating its belief that the applicant was informed of the outcome of the meetings
of the PWG. The basis for that belief is not in fact indicated. In those
circumstances, that statement cannot constitute proof of the applicant's
participation in an infringement of Article 85(1) of the Treaty. That conclusion is
all the more necessary in view of the fact that in appendix 38 to the statement of
objections Stora implicates not only a member undertaking of the NPI which is not
concerned by the Decision (Strömsdahl), but also two Spanish member
undertakings of the PG Paperboard which were not considered in the Decision to
have participated in any infringement.
- 132.
- As regards appendix 102 to the statement of objections, the Commission submits
that this document, obtained from Rena, contains the notes taken on the occasion
of discussions at a meeting of the NPI's 'Marketing Committee on 3 October 1988
at Arlanda airport. It states that this document confirms that downtime was
contemplated in the context of the April 1989 price increase (point 58, second and
third paragraphs, of the Decision). The applicant, which was represented at that
meeting, has stated that the object of that meeting was in particular the financing
of the 'pro-carton advertising campaign. The Commission explained at the
hearing that the representative of Rena who had supplied that document to the
Commission had stated that it was attached to the invitation to the meeting in
question.
- 133.
- In order to assess whether that document proves that a representative of the NPI
or a representative of a member undertaking of the NPI participating in the PWG,
the JMC or the Economic Committee informed the applicant at the NPI meeting
on 3 October 1988 of collusion between the undertakings meeting in the PG
Paperboard, the Court must consider whether it has been proved that the notes
were made at that meeting.
- 134.
- In that regard, the Court finds that appendix 102 to the statement of objections
does not contain any specific references to the NPI. However, that document
states as follows:
'How? PRO-CARTON in Nordic context. How to market and to whom. Is to
be cleared up before the Helsingfors-meeting.
- 135.
- On account of the reference to 'pro-carton and the purpose which the applicant
claims that meeting had, that statement could suggest that appendix 102 to the
statement of objections does in fact recount the remarks made at the NPI meeting
on 3 October 1988.
- 136.
- However, as the applicant has disputed that it participated in the anti-competitive
discussions recounted by that document, which does not itself contain any express
or implicit reference to the applicant or to the grade of cartonboard manufactured
by it, it cannot be ruled out that it is a note recounting discussions which Rena had
with other Scandinavian producers outside the framework of the NPI and without
the applicant's participation. In that regard, the Court points out, first, that the
Commission has not adduced any other evidence to prove that discussions with an
anti-competitive object took place at meetings of the NPI and, second, that the
explanations of Rena's managing director as to the origin of the price lists
contained in appendices 110 and 111 to the statement of objections (see paragraph
139 below) appear to show that the NPI meetings were also the opportunity for
member undertakings of that association to hold meetings in which a more
restricted circle of undertakings took part.
- 137.
- In those circumstances, appendix 102 to the statement of objections does not prove
that the applicant participated in an infringement of Article 85(1) of the Treaty.
- 138.
- Lastly, appendix 111 to the statement of objections, a price list obtained from
Rena, contains information concerning price increases for GC 1, GC 2 and SBS
grade cartonboard which were to be implemented on 1 October 1989.
- 139.
- As regards the origin of that price list and that of another price list obtained from
Rena (appendix 110 to the statement of objections), Rena's managing director
stated as follows in a letter of 10 July 1992 (appendix 112 to the statement of
objections):
'The price lists as you state, were among the papers from meetings in [NPI], and
I must have received them during a visit to Stockholm regarding a [NPI]-meeting. During these visits I normally had several meetings with some of the other
Scandinavian producers. I was new as managing director at Rena at that moment
and had a lot of discussions with other members of the trade, and this was a crucial
time for our board mill with a big loss that year and it was important for me to
have a best possible foundation for the 1990 budget. I probably got the lists during
one of these meetings.
I understand that this explanation sounds peculiar regarding the circumstances for
your investigation, but as far as I remember I cannot have received these lists from
the [NPI].
- 140.
- In the light of that explanation, the Court considers that it cannot be considered
to have been proved that Rena obtained that list at a meeting of the NPI or at
another meeting at which the applicant was present. In that context, there is no
reason to doubt the truthfulness of Rena's explanation of the origin of the price
lists in question.
- 141.
- Nor can the evidence which the Commission has regarding the price increases
announced by the applicant be considered to support its contention that appendix
111 to the statement of objections shows that the applicant participated in collusion
on prices.
- 142.
- The applicant announced an increase in its prices in the Netherlands of HFL 13
per l00 kg which was to take effect on 1 October 1989 but was subsequently
postponed until 1 January 1990 (appendices E-3-3 to E-3-7 of the price
documents). However, according to appendix 111 to the statement of objections,
the price of SBS cartonboard in the Netherlands was to be increased on 1 October
1989 by HFL 17 per 100 kg. Table E annexed to the Decision also shows that the
applicant announced an increase in its prices in Denmark on 25 May 1989, almost
two months before the first letter announcing a price increase was sent by one of
the other undertakings deemed to have participated in the collusion on prices (see
table E annexed to the Decision). Furthermore, according to Stora (appendix 39
to the statement of objections, point 34), the decision to increase prices for GC and
SBS cartonboard with effect from October 1989 was taken in the PWG in June of
the same year, that is to say, after the date on which the applicant announced the
increase in its prices in Denmark.
- 143.
- Having regard to those factors, and even if the price increases announced by the
applicant in Germany, France and the United Kingdom correspond to those set out
in appendix 111 to the statement of objections, that document cannot be regarded
as proof of the applicant's participation in collusion on prices. The references to
the price increases of SBS cartonboard might have concerned Iggesunds Bruk
alone, the other producer of that grade of cartonboard deemed to have
participated in the infringement.
- 144.
- Having regard to all the above considerations, the Court considers that the
Commission has not proved that decisions with an anti-competitive object adopted
in the PWG, the JMC or the Economic Committee were communicated to the
applicant by the NPI or by a representative of a member undertaking of the NPI
who had also participated in meetings of those bodies.
The applicant's actual pricing conduct
- 145.
- According to the Decision, the applicant's own commercial documentation, in so
far as it is available, shows 'not only a continuing pattern of price increases
identical to those of the other major SBS producer, Iggesunds Bruk, but also, for
October 1989, a virtually exact correspondence to the NPI price list obtained from
Rena (point 121).
- 146.
- As regards the April 1990 price increase initiative, the Commission states (point 86,
last paragraph, of the Decision):
'Enso's announced price increase for the United Kingdom of 8.5% is also exactly
the same as that notified by Finnboard for its GC graphic grades which compete
with Enso's SBS product Ensocoat. There is indeed documentary evidence (see
recital 97) pointing to collusion between Iggesund, Enso, Kopparfors and Finnboard
on the price increase for graphic grades in the United Kingdom on this occasion.
- 147.
- The Court has already held that the figures concerning the applicant's price
increases for cartonboard in October 1989 are not so similar in comparison with
those contained in appendix 111 to the statement of objections (the price list
obtained from Rena, paragraph 138 above) as to support the Commission's
assertion that that document proves that the applicant participated in collusion on
prices (paragraph 141 et seq. above).
- 148.
- The Court has also held that appendix 133 to the statement of objections, on which
the Commission relies as evidence of the applicant's participation in collusion on
the April 1990 price increase in the United Kingdom, has no probative value (see
paragraph 112 et seq. above). In that context, the Court has also held that the
price increases announced by Iggesunds Bruk and by the applicant in the United
Kingdom at the beginning of 1990 cannot be regarded as 'similar or 'identical
(paragraphs 119 to 121 above).
- 149.
- Lastly, the Court finds that the applicant's actual pricing conduct at the time of the
increases for which the Commission does not rely on any documentary evidence as
against it, namely the increases in March/April 1988, October 1988, April 1989 and
January 1991, does not constitute evidence of its participation in collusion on prices
during the reference period. The pricing conduct of the applicant and that of
Iggesunds Bruk and of Finnboard, as set out in the tables annexed to the Decision
(tables B, C, D and G), do not display such a degree of similarity that the
possibility that the applicant adapted its conduct to that of its competitors on the
market seems less plausible than the possibility that it participated in collusion on
prices. It is settled law that, although Article 85 of the Treaty prohibits any form
of collusion which distorts competition, it does not deprive economic operators of
the right to adapt themselves intelligently to the existing and anticipated conduct
of their competitors (see, inter alia, Ahlström Osakeyhtiö and Others v Commission,
cited above, paragraph 71).
- 150.
- In those circumstances, the applicant's pricing conduct cannot be accepted as
evidence of its participation in collusion on prices.
Conclusions
- 151.
- The items of evidence on which the Commission relies in the Decision in order to
prove the existence of an infringement of Article 85(1) of the Treaty by an
undertaking must not be assessed separately, but as a whole (ICI v Commission,
cited above, paragraph 68).
- 152.
- In its appraisal of the object of the PC meetings, of the documents expressly
referring to the applicant (appendices 44 and 113 to the statement of objections),
of the consequence of the applicant's membership of the NPI, and of the
applicant's actual pricing conduct, the Court has held that none of those elements
can, when considered separately, constitute evidence of the applicant's participation
in an infringement of Article 85(1) of the Treaty.
- 153.
- Even when the documents before it are considered as a whole, the Court finds that
their probative value is not sufficient to prove that the applicant committed an
infringement of Article 85(1) of the Treaty.
- 154.
- The Decision must therefore be annulled in so far as it concerns the applicant, and
it is not necessary to consider the other pleas on which the applicant relies in
support of its application for annulment of the Decision.
Costs
- 155.
- Under 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 Commission has been unsuccessful in its submissions, it must be ordered
to pay the costs, as sought by the applicant.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition)
hereby:
(1) Annuls, as regards the applicant, 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);
(2) Orders the Commission to pay the costs.
Vesterdorf Briët Lindh
Potocki Cooke
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Delivered in open court in Luxembourg on 14 May 1998.
H. Jung
B. Vesterdorf
Registrar
President