Judgment — ECLI:EU:T:1998:102
Date: 1998-05-14
Language of the case: Spanish
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Statement of reasons;Infringement committed "deliberately or through negligence";Determining the amount of the fine;Admissibility and examination of applications, forms of order sought and pleas in law;Rights of the defence and procedural guarantees;Restriction of competition;Agreements of undertakings, decisions by associations of undertakings and concerted practices;General;Right to a judicial remedy;Hearing of persons concerned and of third parties / Access to the file
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Spain

summary of infringement'.
That summary states, inter alia, that the producers supplying cartonboard in the
EEC, in concert and complicity and contrary to Article 85 of the Treaty, 'planned
and implemented simultaneous and uniform price increases throughout the EEC'.
It expressly states that it must be read subject to the detailed objections set out in
the remainder of the document.
85 When the statement of objections is read as a whole, it can be seen that, in the
Commission's view, the alleged infringement extended to the whole of the Com­
munity. An examination of the allegations made in the statement of objections
relating to the geographical scope of the anti-competitive acts cannot be restricted
to collusion on prices, since it is apparent from the statement of objections (pp. 83
to 88) that the purpose of the main features of the 'price before tonnage' scheme
was to restrict competition within the common market.
86 In its assessment of the facts, the statement of objections (p. 37) states, in regard to
the JMC's role in the price collusion:
'The JMC discussed market-by-market the detailed implementation of the price
decisions taken by the PWG. Its main function was to "determine whether and, if
so, how price increases could be put into effect and to work towards achieving an
equivalent (i. e. uniform) price system in Europe"'.
87 As to the collusion on market shares, it states (p. 51) that the understanding on
market shares 'related to the shares in Western Europe as a whole'.
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88 On that point, it refers to Stora's statements, according to which (Appendix 43 to
the statement of objections, point 1.1):
'Discussions took place in the PWG on tonnage market shares. Virgin fibre quali­
ties (GC and UC grades) and recycled fibre qualities (GD and UD grades) were
considered separately. Levels for Europe as a whole and for individual countries
were discussed. "Europe" for the purposes of the discussions meant EC and EFTA
countries.'
89 As regards the collusion on prices, it states (p. 69):
'The documentation also shows that the so-called "equivalent" or "European"
price system had been implemented, with similar list price levels being introduced
simultaneously across Europe.'
90 In its legal assessment, the Commission states inter alia (p. 83), in the section
headed 'The nature of the infringement in the present case':
'The main features of the "price before tonnage" scheme were:
[...]
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— the periodic implementation of agreed price initiatives involving simultaneous
and uniform price increases by all producers in each national market;
— the achievement of a uniform pricing system on a European-wide basis;
[...]'·
91 Finally, in the section headed 'Effect upon trade between Member States', the
statement of objections states (p. 88):
'In the present case, the pervasive nature of the collusive arrangements, which cov­
ered virtually all trade throughout the EEC (and other Western European coun­
tries) in a major industrial product, must automatically have resulted in the diver­
sion of trade patterns from the course they would otherwise have followed.'
92 The explanations regarding the geographical scope of the alleged infringement, as
contained in the body of the statement of objections itself, are corroborated in that
document by the main evidence on which the Commission relies, namely Stora's
statements. According to those statements, the geographical scope of the anti­
competitive acts regarding prices extended, at least, to the whole of the territory of
the Community. By way of example, Stora states, in regard to the two price
increase initiatives adopted in 1988, that 'agreement was reached on the introduc­
tion (in 1988) of two price increases throughout the EC market' (Appendix 39 to
the statement of objections, point 4). Similarly, as has already been pointed out (see
paragraph 88 above), Stora states that the collusion on market shares concerned
Europe as a whole.
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93 In those circumstances, the statement of objections must be considered to satisfy
the abovementioned requirement of clarity regarding the extension of the collusion
to the whole of the Community. Consequently, the mere fact that some Commu­
nity countries were not expressly mentioned is irrelevant.
94 Nor, in the present case, was it necessary for the Commission, prior to finding that
there had been a restriction of competition, to define the geographical market on
which it had taken place (see paragraph 231 et seq. below).
95 However, inasmuch as it is clear from the information supplied by the applicant in
reply to a written question from the Court that the majority of its sales were on
the Spanish market, the Court finds that several documents referred to in the state­
ment of objections and annexed thereto do expressly refer to the Spanish market
(Appendices 109, 110, 111, 117 and Technical Appendices E and G).
96 In particular, on page 55 of the statement of objections, Appendix 109 is referred
to in the following terms:
'Those producers present at the meeting [of the JMC of 16 October 1989] ...
reported on the progress in each national market of the price increase which had
been announced to take effect (for most countries) on 1 October 1989'.
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97 The Spanish market is expressly included amongst the national markets referred to
in Appendix 109:
'(a) Spain
The price increase has been notified and can be applied without any great difficulty
98 Furthermore, Appendix E, which relates to the price increase initiatives in October
1989, makes comments on, and partially reproduces Appendix 111 to the statement
of objections, namely a price list found at Rena. Although that list was stated to be
Appendix 110 to the statement of objections, a careful reader could not have been
unaware that it was in fact referring to Appendix 111.
99 The information reproduced concerns the prices, by grade of cartonboard, for each
country and the date of the announcement of the price increases; information
relating to the Spanish national market is expressly set out in that document.
too Lastly, Appendix E states:
'Details of the price increases of each manufacturer are indicated in Table E.
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(N. B.: Finnboard, Feldmühle and Kopparfors all increased their prices for Spain
by the amounts indicated in Appendix 117).'
101 Although the reference to Appendix 117 to the statement of objections is an unfor­
tunate error, as the appendix referred to is in fact Appendix 111, the Court finds
that Appendix E relates expressly to the Spanish national market.
102 Finally, Appendix G (p. 4), which relates to the January 1991 price initiatives,
states as follows:
'The details of each producer's price increases are set out in Table G.
The main producers supplying the Spanish market (Cascades, Finnboard, Igge-
sund, Tampella Española, Feldmühle) all announced an increase of 5 PTA/kg.'
103 In summary, in the light of the foregoing considerations, the applicant cannot
assert that its rights of defence were infringed.
104 The plea must therefore be rejected.
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C — The plea of infringement of Article 190 of the Treaty
Arguments of the parties
105 Pointing out that the extent of the requirement to state reasons depends upon the
particular circumstances (Opinion of Advocate General Van Gerven in Case
C-137/92 P Commission v BASF [1994] ECR 1-2555, at 1-2572, the applicant sub­
mits that it is necessary to adopt a strict interpretation of the obligation to state the
reasons on which a decision imposing fines is based, above all where the Commis­
sion's decision goes appreciably further than its previous decisions (Case 73/74
Groupement des Fabricants de Papiers Peints de Belgique and Others v Commis­
sion [1975] ECR 1491).
106 In the present case, the Decision did not clearly and coherently set out, in regard
to the applicant, the considerations of fact and of law which led the Commission
to adopt that decision. Neither the applicant nor the Court are therefore in a pos­
ition to ascertain the considerations on which its reasoning is based. That is par­
ticularly so in regard to the definition of the relevant geographical market and the
assessment of the applicant's participation in the alleged infringements.
107 Finally, the Commission infringed the obligation to state reasons for its determina­
tion of the amount of the fines.
108 The Commission submits that the plea must be rejected, because it merely refers
generally to Article 190 of the Treaty. It is in any event unfounded, because the
Decision contains an adequate statement of reasons.
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Findings of the Court
109 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 11-1799, para­
graph 51). Although pursuant to Article 190 of the Treaty the Commission is
bound to state the reasons on which its decisions are based, mentioning the facts,
law and considerations which have led it to adopt them, it is not required to dis­
cuss all the issues of fact and law which have been raised during the administrative
procedure (see, inter alia, Van Landewyck and Others v Commission, cited above,
paragraph 66).
110In the present case, the Decision refers directly to the applicant in the context of
its description of the concerted price increases (points 77 and 89 of the Decision).
Moreover, the points of the Decision describing the discussions with an anti­
competitive object in the JMC (in particular, points 44 to 46, 58, 71, 73, 84, 85 and
87 of the Decision) necessarily relate to the applicant, which does not dispute hav­
ing participated in meetings of that body. Lastly, the Decision clearly sets out the
reasoning followed by the Commission in reaching its conclusion that the appli­
cant participated in an overall cartel (points 116 to 119 of the Decision).
111In such circumstances, the statement of reasons for the Decision gave the applicant
sufficient indication of the principal points of fact and law which constituted the
basis for the reasoning which led the Commission to hold it responsible for an
infringement of Article 85(1).
112As to the statement of reasons concerning the geographical market to which the
Decision relates, it suffices to find that not only the Decision's operative part
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(Article 1), but also the supporting grounds for it (inter alia, point 2, first para­
graph, third and fifth indents; point 44, second paragraph, second indent; point 52
and point 76, first paragraph) relate to anti-competitive actions throughout the
Community.
113In those circumstances, the Court cannot uphold the applicant's argument that the
statement of reasons was inadequate on that point.
114 Finally, as regards the alleged infringement of the obligation to state reasons for
the Commission's determination of the amount of the fines, the Court finds that
such an infringement, if proved, can affect only the lawfulness of Article 3 of the
Decision, which imposes a fine on the applicant. The arguments in question must
therefore be considered with the pleas raised in support of the application for
annulment or reduction of the fine (see paragraph 238 et seq. below).
115 It follows that the plea must be rejected as unfounded.
D — The plea that Article 85(1) of the Treaty was wrongly applied to the appli­
cant's actions
Arguments of the parties
116 This plea is in four parts.
117 In the first part, the applicant disputes that it participated in an overall plan to
restrict competition.
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118 In its reply to the statement of objections it acknowledged that it had been a mem­
ber of the PG Paperboard and had participated in meetings of certain of its bodies
and in the Fides information exchange system. However, it was unaware that the
information supplied had restricted competition.
119 Its adherence to an overall plan to restrict competition cannot be inferred from its
limited participation in the bodies of the PG Paperboard and the information
exchange within that structure. Moreover, by referring in its defence to the 'bodies
of the cartel', the Commission wrongly classes its participation in the bodies of the
PG Paperboard as participation in the cartel itself.
120 The Commission has not furnished credible and cogent evidence to link the appli­
cant to the common system. Since the applicant is not referred to in any of the
documents cited as evidence in the Decision, the only matters which can be con­
sidered to have been proved are its mere presence at meetings and participation in
an information exchange. The applicant stresses the difference between participa­
tion in an overall plan to restrict competition and participation in some of the
actions capable of constituting less serious infringements in the context of that plan
(presence at meetings and participation in the information exchanges).
121 The applicant sets out the test used by the Commission in order to establish the
participation in the cartel of each addressee of the Decision (points 116 to 121 of
the Decision) and argues that the application of that test to its own situation shows
that it did not participate in the alleged common scheme. None of the evidence
relied on in the Decision is such as to prove a link between the applicant and the
collusion.
122 In the second part of the plea, the applicant submits that it did not participate in
the price increases agreed at the JMC meeting of 6 September 1990 (point 89 of the
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Decision). As stated in its reply to the statement of objections (point 5.2.2, and in
particular 5.2.2.1), its participation in, and implementation of, the price collusion
have not been proved.
123 Moreover, neither the Decision nor the statement of objections contains the slight­
est evidence of its participation in monitoring the implementation of the price
increases.
124 In its reply it explains that, when assessing its assertion that it did not participate
in the collusion on prices, it must be borne in mind, first, that it did not undertake
to apply a particular price level: that does not mean that it was unaware of the
existence of agreements made by the major producers to that effect, probably in
PWG meetings. Second, it should be borne in mind that its commercial policy
always followed different criteria than those of its competitors.
125 In the third part of the plea the applicant submits that it did not participate in col­
lusion on control of production volumes or in collusion on market shares.
126 According to the Decision (point 51 et seq.), a mechanism for controlling prices
and production volumes, based on an alleged 'price before tonnage' policy, was
initiated in the PG Paperboard. It is also alleged (point 58) that the smaller carton-
board producers, although not privy to the detailed discussions on market shares
which took place in the PWG, were, as part of the 'price before tonnage' policy to
which they all subscribed, well aware of the general understanding between the
major producers to maintain constant levels of supply and of the need to adapt
their own conduct to it.
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127 However, there is no evidence for that assertion as regards the applicant. On the
contrary, its commercial policy, explained in its reply to the statement of objec­
tions, was always to increase the quantity of products on the market, even to the
detriment of the margin on prices obtained.
128 Furthermore, the Commission wrongly alleges that it participated in the collusion
on downtime and on market shares. In point 116 of the Decision the Commission
acknowledges that only the major producers concluded agreements on production
volumes and market shares.
129 The objection that markets were shared is not proved or even supported by any
evidence in the Decision. In any event, the changes in the applicant's sales on the
Community markets suffice to prove that this allegation is unfounded in regard to
it.
130Finally, in the fourth part of the plea, the applicant contends that the failure in the
statement of objections to clarify the relevant geographical market (see point 66 et
seq. above) is repeated in the Decision. The only passage in the Decision which
specifies the limits of that market is point 138, in which it is accepted that the
infringements were not committed in Portugal and Greece. The applicant asserts
that there is an inconsistency between point 138 and point 61, in which it is stated
that the Fides information exchange system covered the whole of Western Europe.
131A definition of the relevant geographical market is essential to an assessment of
whether or not an infringement existed and of how serious and extensive it was.
Since the Spanish, Portuguese, Greek and Irish markets, on which it carried on the
major part of its activities, are not covered by the procedure, the applicant was
only a marginal participant in the infringement.
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132 Moreover, the Irish and Spanish markets seem to have been regarded as part of the
relevant geographical market (point 71 of the Decision), whereas the majority of
the evidence adduced in the Decision does not refer to those national markets at
all. In particular, the evidence on which the Commission relies in order to prove
the existence of an agreement to increase prices refers to the Spanish and Irish mar­
kets only in the context of the October 1989, April 1990 and January 1991 price
increases.
133 The Commission states that the arguments submitted by the applicant in its reply
to the statement of objections are inadmissible because they have not been shown
to be pertinent to the validity of the contested decision.
134 The proper approach in a case such as the present one is to demonstrate the exist­
ence, operation and salient features of the cartel as a whole and then to determine
whether there is credible and persuasive proof to link each individual producer to
the common scheme, and the period of each producer's participation. In that con­
text it refers to point 116, second paragraph, of the Decision, according to which
price collusion and volume control were inextricably linked aspects of the same
overall plan.
135As the objective of the PG Paperboard was in itself principally unlawful, the Com­
mission assumes that any producer that was a member of the PG Paperboard and
sat in its various committees was a participant in the cartel. The PWG and the
JMC dealt almost exclusively with price fixing and market sharing.
136 Furthermore, as is shown in the Decision and the appendices to the statement of
objections, there are numerous items of concrete evidence to show that the appli­
cant participated in the infringement. The applicant is referred to in the key docu­
ments proving the existence of the cartel as a whole or its various aspects.
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137 As to the second part of the plea, the Commission contends that the applicant's
participation in price collusion has been proved. Its participation in the bodies of
the cartel precludes it from arguing that the alleged time lag between the
announcement of prices was the result of intelligent adjustment to the market con­
ditions, and its reply to the statement of objections only goes to confirm its par­
ticipation in the price collusion.
138 As regards the third part of the plea, the Commission observes that the applicant
does not deny participating in the main bodies of the cartel, other than the PWG,
and that the existence of the agreement and the concerted practice imputed to the
applicant has been proved in regard to those bodies (see, inter alia, points 111 to
113 of the Decision). The Commission does not therefore have to have concrete
evidence showing that each alleged participant expressly consented to or commit­
ted an overt act in support of each and every individual aspect or manifestation of
the cartel throughout its duration (point 116 of the Decision). Reasons of substan­
tive law and of practicality militate against such a fragmented approach, because
the infringement consisted, in essence, in the combination of the producers over
several years in a joint unlawful enterprise pursuant to a common design {ibidem).
139 Even if it was only the major producers which discussed, in particular, market
shares and production downtime in the PWG, that does not mean that the smaller
producers were not involved in that element of the infringement. They were aware
of, and accepted, the market sharing policy adopted in the PWG (point 58 of the
Decision); facilitated the implementation of the scheme for the control of sales vol­
umes and market shares by supplying the necessary information to Fides; and were
informed of the plans for downtime in the JMC (point 71).
140 The Commission contends that the fourth part of the plea should also be rejected.
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141 In that regard it refers, in essence, to the arguments set out above (see paragraph 76
et seq.). It emphasizes, however, that point 138 of the Decision states that there is
no reliable evidence of price-fixing arrangements in Greece and Portugal, not that
infringements did not take place in those countries. It also contests the applicant's
allegation that there is an inconsistency between the statement that the Fides infor­
mation exchange covered the whole of Europe and the statement that there is no
evidence of agreements on prices in Greece and Portugal.
Findings of the Court
142 The Court will first examine the first three parts of the plea alleging that the appli­
cant did not participate in the infringement found in Article 1 of the Decision. The
fourth part, arguing that there was no adequate definition of the relevant geo­
graphical market will be examined separately.
The first three parts of the plea: the applicant did not participate in the infringe­
ment found in Article 1 of the Decision
143 First of all, the Court points out that under Article 44(1 )(c) of the Rules of Pro­
cedure all applications must indicate the subject-matter of the proceedings and
include a brief statement of the grounds relied on. The information given must be
sufficiently clear and precise to enable the defendant to prepare its defence and the
Court to decide the case, if appropriate without other information in support. In
order to ensure legal certainty and the sound administration of justice, if an action
is to be admissible, the essential facts and law on which it is based must be appar­
ent from the text of the application itself, even if only stated briefly, provided the
statement is coherent and comprehensible (see, for example, the order in Case
T-56/92 Koelman v Commission [1993] ECR 11-1267, paragraph 21).
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144 In the present case, the Court finds that the applicant, in referring to the argu­
ments submitted in its reply to the statement of objections, is not relying on a plea
or argument which was not submitted in its application. The reference in the appli­
cation to certain arguments set out in the reply to the statement of objections
merely seeks to support and supplement the main body of the application on spe­
cific points. In those circumstances, the applicant's arguments in support of the
present plea must be considered admissible.
145 The Court must examine, in the first place, whether the Commission has proved
that the applicant participated in an infringement of Article 85(1) of the Treaty
from March 1988 until February 1989, the month in which it admits that it began
to participate in JMC meetings. It will then examine whether the Commission has
proved that the applicant participated in an infringement of Article 85(1) of the
Treaty in regard to the remaining period, that is to say, from February 1989 until
April 1991.
1. Period from March 1988 until February 1989
146 The fourth paragraph of point 162 of the Decision states:
'Enso Española started attending meetings of a PG Paperboard grouping (the
Economic Committee) on a regular basis in 1987 and the first President Confer­
ence it attended was that of 25 May 1988. It claims to have started going to the
JMC only in February 1989. However, it did take part in the first price initiative of
1988 and its effective participation in the infringement may be taken to have begun
at about that time.'
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147 As proof of the applicant's participation in an infringement of the Community
competition rules during the period in question, the Commission relies on its par­
ticipation in the PC meetings of 25 May and 17 November 1988 (Table 3 annexed
to the Decision), in the Economic Committee meeting of 3 May 1988 (Table 6
annexed to the Decision) and, finally, its actual conduct in regard to prices.
148 Each of those items of evidence should be examined in the above order,
(a) The applicant's participation in meetings of the PC
149 As regards the applicant's participation in two specific meetings of the PC, the
Commission does not advance any evidence as to the object of those meetings.
Consequently, when it refers to that participation as evidence of the undertakings'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.
150 In that regard, the Decision states: 'As Stora has explained one of the PWG's func­
tions included explaining to the President Conference the measures which were
necessary to bring order to the market ... In this way, the managing directors
attending the President Conferences were informed of the decisions taken by the
PWG and of the instructions to be given to their sales departments to implement
the agreed price initiatives' (point 41, first paragraph, of the Decision). The Com­
mission also observes: 'The PWG invariably met before each scheduled President
Conference, and since the same person was in the chair at both meetings, it was no
doubt he who communicated the result of the PWG deliberations to others among
the so-called "Presidents" who were not members of the inner circle' (point 38,
second paragraph, of the Decision).
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151 Stora has indicated that the participants in PC meetings were informed of decisions
adopted by the PWG (appendix 39 to the statement of objections, point 8). How­
ever, the correctness of that assertion is contested by several of the undertakings
which took part in PC meetings. In particular, it is contested implicitly by the
applicant inasmuch as it disputes that it participated in an infringement of Article
85(1) of the Treaty. Consequently, Stora's statements relating to the PC's role can­
not, unless supported by other evidence, be considered sufficient evidence of the
object of the meetings of that body.
152 Admittedly, there is a document in the file, a statement of 22 March 1993 by a
former member of the management of Feldmühle (Mr Roos), which at first sight
corroborates Stora's assertions. Mr Roos indicates, inter alia, as follows: 'The con­
tent 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'. However, even
though there is no express reliance on that document in the Decision in support of
the Commission's assertions as to the object of the PC meetings, it 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.
153 The Commission submits in the Decision that Appendix 61 to the statement of
objections, a note discovered at Mayr-Melnhof's UK sales agent which refers to a
meeting held in Vienna on 12 and 13 December 1986, is 'corroboration of Stora's
admission that the President Conference did in fact discuss collusive pricing'
(point 41, third paragraph, and point 75, second paragraph). That document con­
tains 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 disappoint-
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ment 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 seri­
ous 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!'
154 Mayr-Melnhof states (reply to a request for information, appendix 62 to the state­
ment of objections) that the Fides meeting referred to at the beginning of the pas­
sage quoted is probably the PC meeting of 10 November 1986, at which, according
to Table 3 annexed to the Decision, the applicant was not present.
155 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.
156 It cannot, however, be considered to prove that Weig reacted in relation to a par­
ticular level of price increase agreed between the undertakings within the PG
Paperboard before 10 November 1986.
157 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 pro­
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duced any other document capable of constituting direct evidence that discussions
on price increases took place at meetings of the PC. In those circumstances, it can­
not 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.
158 The Commission also states in the Decision that '[documentation found by the
Commission at FS-Karton (part of the M-M group) 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' (point 53, first paragraph, of the
Decision). It refers in that regard to appendix 73 to the statement of objections, a
confidential note dated 28 December 1988 from the Marketing Director of the
Mayr-Melnhof group in Germany (Mr. Katzner) to the Managing Director of
Mayr-Melnhof in Austria (Mr Gröller) concerning the market situation.
159 The author of the note refers by way of introduction to the closer cooperation
within the 'Presidents' grouping' ('Präsidentenkreis'), an expression 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).
160 Although the applicant does not dispute that appendix 73 to the statement of
objections is corroborative evidence of Stora's statements concerning the existence
of collusion on market shares between the undertakings allowed to participate in
the 'Presidents' grouping' and of 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 'Presi­
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ENSO ESPAÑOLA v COMMISSION
dents' grouping' ('Präsidentenkreis') used in appendix 73 to the statement of objec­
tions cannot, despite the explanation supplied by Mayr-Melnhof, be construed as
referring to bodies other than the PWG.
161Having regard to the foregoing, the Commission has not proved that the meetings
of the PC had an anti-competitive function alongside its lawful activities. It fol­
lows that it was not entitled to infer from the evidence relied upon that the under­
takings which participated in meetings of the PC had taken part in an infringement
of Article 85(1) of the Treaty.
162 The applicant's participation in two meetings of the PC does not therefore prove
that it infringed Article 85(1) of the Treaty from March 1988 until February 1989.
b) The applicant's participation in one meeting of the Economic Committee
163 It is common ground that between March 1988 and February 1989 the applicant
participated in only one meeting of the Economic Committee, that of 3 May 1988.
Since the Commission has not adduced any evidence relating to that meeting, it is
necessary to examine more generally whether the meetings of the Economic Com­
mittee had an anti-competitive object.
164 The Decision states that 'the "central theme" of the discussions of the Economic
Committee was the analysis and assessment of the cartonboard market in the vari­
ous countries' (point 50, first paragraph, of the Decision). The Economic Commit­
tee 'discussed inter alia price movements in national markets and order backlogs
and reported its findings to the JMC (or its predecessor the Marketing Committee
before the end of 1987)' (point 49, first paragraph, of the Decision).
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165 According to the Commission, '[t]he discussions on market conditions were not
unfocused; talks on the state of each national market must be seen in the context of
the planned price initiatives, including the perceived need for temporary plant
shutdowns to support price increases' (point 50, first paragraph, of the Decision).
Furthermore, the Commission considers that: *[t]he Economic Committee may
have been less directly concerned with price fixing as such but it is not credible
that those who attended were unaware of the illicit purpose for which the infor­
mation they knowingly provided to the JMC was to be used' (point 119, second
paragraph, of the Decision).
166 To support its contention that the discussions held in the Economic Committee
had an anti-competitive object, the Commission refers to a single document, a con­
fidential note by a representative of FS-Karton concerning the essential points of
the Economic Committee's meeting of 3 October 1989 (appendix 70 to the state­
ment of objections).
167 In the Decision the Commission summarises the content of that document as fol­
lows:
'... in addition to a detailed survey of demand, production and orders in hand in
each national market, the meeting was concerned with:
— perceived strong customer resistance to the last GC price increase, effective on
1 October,
— the respective state of the order backlog of the GC and GD producers, includ­
ing individual positions,
— reports on downtime taken and planned,
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ENSO ESPAÑOLA v COMMISSION
— the particular problems of implementing the price increase in the United King­
dom and its effect on the necessary price differential between GC and GD
grades,
— the comparison against budget of incoming orders for each national grouping'
(point 50, second paragraph, of the Decision).
168 That description of the content of the document is, in essence, correct. However,
the Commission does not rely on any evidence to support its assertion that appen­
dix 70 to the statement of objections may be regarded 'as indicative of the real
nature of the deliberations of that body' (point 113, last paragraph, of the
Decision). Furthermore, Stora states: '[T]he JMC was set up at the end of 1987 and
held its first meeting in early 1988 taking over part of the functions of the Eco­
nomic Committee from that time. The other functions of the Economic Committee
were taken over by the Statistical Committee' (appendix 39 to the statement of
objections, point 13). At least as regards the period which commenced at the
beginning of 1988, the only period during which the applicant is considered to
have infringed Article 85(1) of the Treaty, Stora's statements do not therefore con­
tain any evidence supporting the Commission's assertion concerning the allegedly
anti-competitive object of that body's discussions. Nor, lastly, does the Commis­
sion refer to any evidence to support the view that the participants in the meetings
of the Economic Committee were informed of the precise nature of the meetings
of the JMC, the body to which the Economic Committee reported. Consequently,
it cannot be ruled out that some participants in the Economic Committee's meet­
ings who did not also participate in the meetings of the JMC were not aware of the
precise use to which the reports prepared by the Economic Committee were put
by the JMC.
169 Consequently, appendix 70 to the statement of objections does not demonstrate
the true nature of the discussions which took place at meetings of the Economic
Committee.
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170 Furthermore, the Commission itself appears to take the view that participation in
meetings of the Economic Committee does not constitute adequate proof of any
infringement, because the applicant, which had been present at meetings of the
Economic Committee in 1987, was not considered to have infringed the compe­
tition rules prior to March 1988.
171 In the light of the foregoing, the fact that the applicant took part, during the
period in question, in one meeting of the Economic Committee does not prove
that it participated in an infringement of Article 85(1) of the Treaty.
c) The applicant's actual conduct in regard to prices
172 As regards the period in question (March 1988 until February 1989), it is apparent
from Table B annexed to the Decision that the Commission found that the appli­
cant had implemented price increases in France and in the United Kingdom on 1
March and 1 April 1988 respectively, that is to say, on dates corresponding to those
allegedly agreed in the bodies of the PG Paperboard. According to that same table,
the Commission did not find that the applicant had increased its prices on other
national markets upon the occasion of the March/April 1998 price increase initia­
tive.
173 Furthermore, according to Table C annexed to the Decision, the Commission does
not have any information regarding price increases by the applicant upon the occa­
sion of the October 1988 price increase initiative.
174 In those circumstances, the applicant's actual conduct in regard to prices, as estab­
lished by the Commission, does not corroborate the Commission's assertion that
the applicant participated in an infringement of Article 85(1) of the Treaty.
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ENSO ESPAÑOLA v COMMISSION
(d) Conclusion relating to the period in question
175 Having regard to the whole of the foregoing considerations, the evidence on which
the evidence relies, even considered as a whole, does not prove that the applicant
participated in an infringement of Article 85(1) of the Treaty between March 1988
and February 1989.
2. Period between February 1989 and April 1991
176 According to Article 1 of the Decision, the undertakings referred to in that provi­
sion infringed Article 85(1) of the Treaty by participating, in the case of the appli­
cant from March 1988 until at least the end of April 1991, in an agreement and
concerted practice originating in mid-1986 whereby the suppliers of cartonboard
in the Community, inter alia, 'agreed regular price increases for each grade of the
product in each national currency' and 'planned and implemented simultaneous
and uniform price increases throughout the Community', 'reached an understand­
ing 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'.
177 It therefore follows that, according to the Decision, each of the undertakings
referred to in Article 1 thereof infringed Article 85(1) of the Treaty by participat­
ing in a single infringement which consisted of collusion on three matters which
were different but which pursued a common objective. Those three types of col­
lusion must be regarded as the constituent elements of the overall cartel.
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
178 In those circumstances, the applicant's participation in each type of collusion must
be examined separately.
a) The applicant's participation in price collusion
179 According to the Commission, the main purpose of the JMC was, from the outset:
'— to determine whether, and if so how, price increases could be put into effect
and to report its conclusions to the PWG,
— to work out the details of the price initiatives decided by the PWG on a
country-by-country basis and for the major customers with the aim of achiev­
ing an equivalent (i. e. uniform) price system in Europe ...' (point 44, last para­
graph, of the Decision).
180 More specifically, the Commission maintains in the first and second paragraphs of
point 45 of the Decision, that:
'This committee discussed market-by-market how the price increases agreed by
the PWG were to be implemented by each producer. The practicalities of bringing
proposed price increases into effect were addressed in "round table" discussions,
with each participant having the chance to comment on the suggested increase.
Difficulties in the implementation of price increases decided by the PWG, or the
occasional refusal to cooperate, were reported back to the PWG, which then (as
Stora put it) "sought to achieve the level of cooperation considered necessary".
Separate reports were made by the JMC for GC and GD grades. If the PWG
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ENSO ESPAÑOLA v COMMISSION
modified a pricing decision on the basis of the reports it had received back from
the JMC, the steps necessary to implement it would be discussed at the next meet­
ing of the JMC'.
181 The Court finds that the Commission was entitled to refer to Stora's statements
(appendices 35 and 39 to the statement of objections) as support for those findings
as to the object of the meetings of the JMC.
182 Moreover, even if the Commission does not possess any official minutes of a meet­
ing of the JMC, it obtained from Mayr-Melnhof and Rena some internal notes
relating to the meetings of 6 September 1989, 16 October 1989 and 6 September
1990 (appendices 117, 109 and 118 to the statement of objections). Those notes, the
tenor of which is given in points 80, 82 and 87 of the Decision, set forth the
detailed discussions held during those meetings relating to concerted price initia­
tives. They therefore constitute evidence which clearly corroborates the descrip­
tion of the JMC's functions given by Stora.
183 In that regard, reference should be made by way of example to the note obtained
from Rena regarding the JMC meeting of 6 September 1990 (Appendix 118 to the
statement of objections), in which it is stated, inter alia:
'Price increase will be announced next week in September.
FFF 40
L 14
DDM 12
ILIT 80
BBF 2.50
CHSF 9
GB£ 40
IRL£ 45
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
All grades should be increased equally GD, UD, GT, GC etc.
Only 1 price increase a year.
For deliveries from 7 Jan.
Not later than 31st January.
14 of September letter with price increase (Mayr-Melnhof).
19 Sept. Feldmühle sending its letter.
Cascades before end of Sept.
All must have sent out their letters before 8 October.'
184 As the Commission explains in points 88 to 90 of the Decision, it was also able to
obtain internal documents supporting the conclusion that the undertakings, and in
particular those named in appendix 118 to the statement of objections, actually
announced and implemented the agreed price increases.
185 As regards Appendix 117 to the statement of objections, a note relating to the JMC
meeting of 6 September 1989, the Commission submits that it is evidence of col­
lusion on the October 1989 price increase initiative. It states, in particular, that the
note 'shows details of the price increases which had been announced in each cur­
rency and assesses customer reaction and the progress already being made towards
implementation in each national market' (point 80, fifth paragraph, of the
Decision). The applicant, which took part in the JMC meeting of 6 September
1989 (table 4 annexed to the Decision), does not dispute that Appendix 117 to the
statement of objections refers to that meeting. Nor does it dispute the Decision's
description of the subject-matter of that meeting.
186 The Commission's assertion that the undertakings referred to in Article 1 of the
Decision monitored the implementation of the price increases (point 82 of the
Decision) relates to Appendix 109 to the statement of objections, which concerns a
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ENSO ESPAÑOLA v COMMISSION
meeting of the JMC on 16 October 1989. The applicant does not dispute the Deci­
sion's description of the content of that document.
187 Even though the documents on which the Commission relies concern only a small
number of the JMC's meetings held during the period covered by the Decision, all
the available documentary evidence corroborates Stora's statement indicating that
the main object of the JMC was to determine and plan the implementation of con­
certed price increases, and to monitor their actual implementation. The almost
total absence of minutes, whether official or internal, of the meetings of the JMC
must be regarded as sufficient proof of the Commission's assertion that the under­
takings which participated in the meetings attempted to hide the true nature of the
discussions in that body (see, in particular, point 45 of the Decision). In those cir­
cumstances, the burden of proof was reversed and it was for the addressees of the
Decision which participated in the meetings of that body to prove that it had a
lawful object. Since such proof was not adduced by those undertakings, the Com­
mission was entitled to consider that the discussions which the undertakings held
in the meetings of that body had a principally anti-competitive object.
188 As regards the applicant's own situation, its participation in nine meetings of the
JMC, and in particular in that of 6 September 1989, must, in the light of the fore­
going, be regarded as sufficient proof of its participation in collusion on prices.
189 The Court cannot accept the applicant's argument that its actual conduct on the
market is inconsistent with the Commission's assertions regarding its participation
in price collusion.
190 First, the existence of price collusion should not be confused with the implementa­
tion of the agreed price increases. The probative value of the evidence adduced by
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
the Commission is such that the information relating to the applicant's actual con­
duct on the market cannot undermine the Commission's conclusions as to the
applicant's participation in price collusion. At the very most, the applicant's argu­
ments might tend to show that its conduct did not follow that agreed between the
undertakings meeting in the PG Paperboard.
191 Second, it is settled law that the fact that an undertaking does not abide by the
outcome of meetings which have a manifestly anti-competitive purpose is not such
as to relieve it of full responsibility for the fact that it participated in the cartel, if
it has not publicly distanced itself from what was agreed in the meetings (see, for
example, the judgment in Case T-141/89 Tréfileurope Sales v Commission [1995]
ECR 11-791, paragraph 85). Even assuming that the applicant's conduct on the
market was not in conformity with the conduct agreed, that in no way affects its
liability for an infringement of Article 85(1) of the Treaty, since it did not publicly
distance itself from what was agreed at the meetings in which it took part.
192 Having regard to the foregoing considerations, the Commission has proved that
the applicant participated in collusion on prices during the period from February
1989 until April 1991.
(b) The applicant's participation in collusion on downtime
193 According to the Decision, the undertakings present at PWG meetings partici­
pated, from the end of 1987, in collusion on downtime and downtime was actually
taken as from 1990.
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ENSO ESPAÑOLA v COMMISSION
194 It is apparent from point 37, third paragraph, of the Decision that the true purpose
of the PWG, as described by Stora, 'included "discussions and concertation on
markets, market shares, prices, price increases and capacity"'. Moreover, referring
to 'the agreement reached in the PWG during 1987' (point 52, first paragraph, of
the Decision), the Commission states that that agreement aimed in particular to
maintain 'constant levels of supply' (point 58, first paragraph, of the Decision).
195 As to the role played by the PWG in the collusion on the control of supply, which
was a feature of the consideration of machine downtime, the Decision states that
the PWG played a decisive role in implementing downtime when, from 1990, pro­
duction capacity increased and demand fell: 'From the beginning of 1990 ... the
industry leaders ... considered it necessary to concert on the need for taking down­
time in the forum of the PWG. The major producers recognised that they could
not increase demand by lowering prices and that maintaining full production
would simply bring prices down. In theory, the amount of downtime required to
bring supply and demand back into balance could be calculated from the capacity
reports' (point 70 of the Decision).
196 It is also observed: 'However, the PWG did not formally allocate the "downtime"
to be taken by each producer. According to Stora, there were practical difficulties
in reaching a coordinated plan on downtime to cover all the producers. Stora says
that for these reasons only "a loose system of encouragement existed"' (point 71 of
the Decision).
197 The Court points out that Stora explains as follows (appendix 39 to the statement
of objections, point 24): 'With adoption by the PWG of the policy of price before
tonnage and the gradual implementation of an equivalent price system from 1988,
members of the PWG recognised that downtime would have to be taken to main­
tain those prices in the face of a reduced growth in demand. Without taking down-
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
time the producers would have been unable to maintain agreed price levels in the
face of an increasing excess of capacity'.
198 In point 25 of its statement, Stora adds: 'In 1988 and 1989 the industry was able to
run at near full capacity. Downtime in addition to normal closure for repairs and
holidays became necessary from 1990. ... Ultimately downtime had to be taken
when the order flow ceased in order to maintain the price before tonnage policy.
The amount of downtime required to be taken by producers (to maintain the bal­
ance between production and consumption) could be calculated from the capacity
reports. No formal allocation of downtime was made by the PWG, although a
loose system of encouragement existed ...'.
199 The Commission also bases its conclusions on Appendix 73 to the statement of
objections (see point 158 above).
200 According to that document, cited in points 53 to 55 of the Decision, the closer
cooperation within the 'Presidents' grouping' ('Präsidentenkreis') decided on in
1987 had produced 'winners' and 'losers'.
201 The reasons adduced by the author of the note in order to explain why he con­
sidered Mayr-Melnhof to be a 'loser' at the time when the note was written are
significant evidence of the existence of collusion on downtime between the partici­
pants in the meetings of the PWG.
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ENSO ESPAÑOLA v COMMISSION
202 The author states:
'(4) It is at this point that there begins to be a difference in opinion between the
parties involved as to what is desired.
[...]
(c) All sales representatives and European agents were released from their
quantity budgets and a pricing policy followed which admitted of
practically no exceptions (our employees often did not understand our
changed attitude to the market — in the past they were just required to
go for tonnage and now the sole objective is price discipline with the
danger of having to stop machines).'
203 Mayr-Melnhof states (appendix 75 to the statement of objections) that the passage
reproduced above refers to its own internal situation. However, when considered
in the light of the more general background to the note, that passage reflects the
implementation, at the level of sales personnel, of a rigorous policy adopted within
the 'Presidents' grouping'. The document must therefore be construed as meaning
that the participants in the 1987 agreement, that is to say, the participants in the
meetings of the PWG at least, undoubtedly weighed up the consequences the
agreed policy would have if it were to be applied rigorously.
204 On the basis of the foregoing, the Commission has proved that there was collusion
on downtime between the participants in the meetings of the PWG.
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
205 According to the Decision, the undertakings which participated in the meetings of
the JMC, the applicant amongst them, also took part in that collusion.
206 In that regard the Commission states, inter alia:
'Besides the Fides procedure which gave globalised figures, it was regular practice
for each individual producer to disclose its own order backlog to competitors in
JMC meetings.
This information on the number of days' orders in hand was relevant for two pur­
poses:
— deciding whether conditions were right for introducing a concerted price
increase,
— determining the downtime necessary to maintain the supply-demand balance
...' (point 69, third and fourth paragraphs, of the Decision).
207 The Commission also observes as follows:
'The unofficial notes made of two JMC meetings, one in January 1990 (see
recital 84), the other in September 1990 (recital 87), as well as other documents
(recitals 94 and 95) confirm, however, that the major producers kept their smaller
competitors closely and continuously informed in the PG Paperboard of their
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ENSO ESPAÑOLA v COMMISSION
plans to take additional downtime as an alternative to decreasing prices' (point 71
of the Decision).
208 The documentary evidence relating to the JMC meetings (appendices 109, 117 and
118 to the statement of objections) confirm that discussions on downtime took
place in the context of the preparation of concerted price increases. In particular,
Appendix 118 to the statement of objections, a Rena note dated 6 September 1990
(see also paragraph 183 above), refers to the amounts of price increases in several
countries, the dates for the future announcements of those increases and the state
of the order backlogs expressed in working days for several manufacturers. The
author of the document notes that certain manufacturers were providing for
downtime, which he illustrates as follows:
'Kopparfors 5-15 days
5/9 will stop for five days'.
209 Moreover, although appendices 109 and 117 to the statement of objections do not
contain information relating directly to the downtime envisaged, they show that
the state of order backlogs and order entries were discussed at the JMC meetings
of 6 September 1989 and 16 October 1989. The Court points out that the applicant
took part in the JMC meeting of 6 September 1989 (see paragraph 185 above).
210 Those documents, read in conjunction with Stora's statements, constitute sufficient
proof of participation in collusion on downtime by the producers represented at
the JMC meetings. The undertakings participating in collusion on prices were ne­
cessarily aware that the object of examining the state of order backlogs and order
entries and discussions on possible downtime was not merely to determine
whether the market conditions were favourable to a concerted price increase but
also to determine whether downtime was necessary in order to avoid the agreed
price level being jeopardised by an excess of supply. In particular, it is apparent
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
from appendix 118 to the statement of objections that the participants in the JMC
meeting of 6 September 1990 agreed on the announcement of an imminent price
increase, even though several producers had stated that they were preparing to
stop production. Consequently, the market conditions were such that the effective
application of a future price increase was going to require, in all probability, that
(additional) downtime be taken, and this is therefore a consequence which was
accepted, at least implicitly, by the producers.
211 On that basis, and without the need to consider the other evidence on which the
Commission relies in the Decision (appendices 102, 113, 130 and 131 to the state­
ment of objections), the Court finds that the Commission has proved that the
undertakings participating in the meetings of the JMC and in the collusion on
prices took part in collusion on downtime.
212 In that context, the Court must reject the applicant's argument that its non-
participation in the collusion on downtime is proved by the fact that it never
stopped production.
213 First, the Commission accepts in the Decision that it was the main producers
which took upon themselves the burden of reducing output so as to maintain price
levels (point 71, second paragraph).
214 Second, even assuming that it had been proved that the applicant used its produc­
tion capacities to the maximum and that such utilisation was not in accordance
with what had been agreed with its competitors in the JMC, that does not prove
that it did not participate in collusion on downtime (see, in particular, Case T-6/89
Enichem Anie v Commission [1991] ECR II-1623, paragraph 165).
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ENSO ESPAÑOLA v COMMISSION
215 The applicant must therefore be considered to have participated from February
1989 until April 1991 in collusion on downtime.
(c) The applicant's participation in collusion on market shares
216 The applicant disputes that it participated in collusion on market shares, but does
not challenge the assertion in the Decision that the producers which participated in
the PWG meetings concluded an agreement which provided for 'the "freezing" of
the west European market shares of the major producers at existing levels, with no
attempts to be made to win new customers or extend existing business through
aggressive pricing' (point 52, first paragraph, of the Decision).
217 In those circumstances, the Court points out that the Commission states as follows
in the Decision in regard to the undertakings which did not participate in the
meetings of the PWG:
'While the smaller cartonboard producers attending meetings of the JMC were not
privy to the detailed discussions on market shares in the PWG, they were, as part
of the "price before tonnage" policy to which they all subscribed, well aware of
the general understanding between the major producers to maintain "constant lev­
els of supply" and no doubt of the need to adapt their own conduct to it' (point
58, first paragraph, of the Decision).
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
218 Although it does not emerge expressly from the Decision, the Commission is in
this respect confirming Stora's statements according to which:
Other producers who did not participate in the PWG were not generally
informed of the detail of the market share discussions. Nevertheless, as part of the
price before tonnage policy in which they participated, they would have been
aware of the understanding by the major producers not to undermine prices by
maintaining constant levels of supply.
As regards the supply of GC grades, in any event, the shares of the producers who
did not participate in the PWG were of such an insignificant level that their par­
ticipation or non-participation in the market share understandings had virtually no
impact one way or the other' (appendix 43 to the statement of objections, point
1.2).
219 The Commission, like Stora, is therefore proceeding from the assumption that,
even in the absence of direct evidence, the undertakings which did not participate
in meetings of the PWG but which have been proved to have subscribed to the
other constituent elements of the infringement set out in Article 1 of the Decision
must have been aware of the existence of collusion on market shares.
220 Such a line of reasoning cannot be accepted. First, the Commission does not rely
on any evidence to show that the undertakings which were not present at the
meetings of the PWG subscribed to a general agreement providing, in particular,
for the freezing of the market shares of the main producers.
221 Second, the mere fact that those undertakings participated in collusion on prices
and collusion on downtime does not demonstrate that they also participated in
collusion on market shares. Contrary to the Commission's apparent claim, the
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ENSO ESPAÑOLA v COMMISSION
collusion on market shares was not intrinsically linked to collusion on prices and/
or collusion on downtime. It suffices to point out that the aim of the collusion on
market shares by the main producers who met in the PWG was, according to the
Decision (see paragraphs 78 to 80 above), to maintain market shares at constant
levels, with occasional amendments, even during periods in which market condi­
tions, and in particular the balance between supply and demand, were such that it
was unnecessary to control production in order to guarantee the effective imple­
mentation of the agreed price increases. It follows that any participation in collu­
sion on prices and/or collusion on downtime does not show that the undertakings
which were not present at the meetings of the PWG participated directly in collu­
sion on market shares, or that they were, or necessarily should have been, aware of
it.
222 Lastly, in the second and third paragraphs of point 58 of the Decision, the Com­
mission relies, as additional evidence to support the assertion in question, on
appendix 102 to the statement of objections setting out a note obtained from Rena
which, according to the Decision, relates to a special meeting of the Nordic Paper-
board Institute held on 3 October 1988. It suffices to state that the applicant was
not a member of the Nordic Paperboard Institute and that the reference in that
document to a possible necessity to take downtime cannot, for the reasons already
stated, constitute evidence of collusion on market shares.
223 In order to be entitled to hold each addressee of a decision, such as the present
decision, responsible for an overall cartel during a given period, the Commission
must demonstrate that each undertaking concerned either consented to the adop­
tion of an overall plan comprising the constituent elements of the cartel or that it
participated directly in all those elements during that period. An undertaking may
also be held responsible for an overall cartel even though it is shown that it par­
ticipated directly only in one or some of the constituent elements of that cartel, if
it is shown that it knew, or must have known, that the collusion in which it par­
ticipated was part of an overall plan and that the overall plan included all the con­
stituent elements of the cartel. Where that is the case, the fact that the undertaking
concerned did not participate directly in all the constituent elements of the overall
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
cartel cannot relieve it of responsibility for the infringement of Article 85(1) of the
Treaty. Such a circumstance may nevertheless be taken into account when assessing
the seriousness of the infringement which it is found to have committed.
224 In the present case, the Court finds that the Commission has not proved that the
applicant knew, or must have known, that its own unlawful conduct was part of an
overall plan which included, over and above the collusion on prices and the collu­
sion on downtime in which it actually participated, also collusion on the market
shares of the major producers.
225 In the light of the foregoing, the Commission has not proved that the applicant
participated in collusion on market shares between March 1989 and April 1991.
(d) The applicant's participation in a common industry plan to restrict compe­
tition
226 The applicant's argument must be understood as a plea that the Commission
infringed Article 85(1) of the Treaty in taking the view that it sufficed for it to
prove the existence, functioning, and principal characteristics of the cartel as a
whole, and then to establish the existence of credible and persuasive proof to link
each individual producer to the common scheme, and to determine the period dur­
ing which each producer participated (point 116 of the Decision).
227 It has already been found that the Commission has proved that the applicant par­
ticipated during the period in question in collusion on prices and on downtime,
but not in collusion on market shares.
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ENSO ESPAÑOLA v COMMISSION
228 As regards the applicant, the common industry plan to restrict competition in
which, according to Article 1 of the Decision, it took part therefore related only to
collusion on prices and on downtime.
(e) Conclusions regarding the period from February 1989 until April 1991
229 Having regard to the whole of the foregoing, the eighth indent of Article 1 of the
Decision, according to which the object of the agreement and concerted practice in
which it participated was to '[maintain] the market shares of the major producers
at constant levels, subject to modification from time to time' must be annulled as
against the applicant.
230 For the remainder, the Commission has proved that the applicant participated
from February 1989 until April 1991 in the infringement found in Article 1 of the
Decision.
The fourth part of the plea: no definition of the relevant geographical market
231 Article 85(1) of the Treaty prohibits 'all agreements between undertakings, deci­
sions by associations of undertakings and concerted practices which may affect
trade between Member States and which have as their object or effect the preven­
tion, restriction or distortion of competition within the common market.'
232 In the present case, the Commission took the view that the applicant had partici­
pated in an agreement and concerted practice, the object of which was to restrict
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competition within the common market and which affected trade between Mem­
ber States (points 133 to 138 of the Decision). As has already been found (see para­
graph 112 above), it is clear from the grounds of the Decision that the Commission
took the view that the collusion between the undertakings covered the whole of
the territory of the Community. Since the Commission therefore found that there
had been an infringement whose object was to restrict competition throughout the
Community, it was not necessary first to define the geographical market before it
found that there was such a restriction of competition (see, to the same effect,
Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR
299, 342 and Case T-29/92 SPO and Others v Commission [1995] ECR II-289,
paragraph 74).
233 The applicant cannot claim that, having regard to point 138 of the Decision, the
anti-competitive acts did not relate to the Portuguese and Greek markets. In that
point of the Decision, the Commission refers to the pervasive nature of the col­
lusive arrangements, which covered virtually all trade throughout the Community
in a major industrial product. The footnote stating that 'the only Member States
for which there is no reliable evidence of price fixing arrangements were Portugal
and Greece, which have no domestic cartonboard producer' must, in the light of
all the grounds of the Decision and its operative part, be understood as meaning
that, in the Commission's view, the whole of the Community market was affected
by the infringement found, even though there was no specific proof in regard to
the Portuguese and Greek markets.
234 It follows that the Commission did not state that the anti-competitive acts alleged
in the Decision did not cover the Greek and Portuguese markets. As the appli­
cant's allegation of a contradiction in the Decision (see paragraph 130 above) is
incorrect, its argument must be rejected.
235 The fourth part of the plea must therefore be rejected.
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ENSO ESPAÑOLA v COMMISSION
236 It follows from the foregoing that Article 1 of the Decision must be annulled as
regards the applicant inasmuch as it states that the applicant participated in an
infringement of Article 85(1) of the Treaty prior to February 1989. Furthermore,
the eighth indent of Article 1 of the Decision, according to which the object of the
agreement and concerted practice in which it participated was to '[maintain] the
market shares of the major producers at constant levels, subject to modification
from time to time' must be annulled as regards the applicant.
237 The remainder of the plea must be rejected.
The application for annulment or reduction of the fine
A — The plea of infringement of Article 190 of the Treaty in regard to the fines
Arguments of the parties
238 The applicant pleads infringement of the obligation to state reasons for the Com­
mission's method of calculating the amount of the fine. It states, in particular, that
the Commission did not indicate either the reference year adopted for the purpose
of applying the percentage of turnover, or the percentage of turnover adopted as a
basic rate before mitigating and aggravating factors were taken into account, or
even the turnover figure which it took. Similarly, a mere list of the circumstances
which the Commission allegedly took into account in order to determine the
amount of the fines does not constitute an adequate statement of reasons.
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239 The right to effective judicial review presupposes that undertakings are able to
verify whether the undertakings accused jointly of participating in a collective,
single and continuous infringement have been treated without discrimination. In
holding that it was unacceptable for persons to have to bring court proceedings in
order to determine details of the method of calculating the fine imposed (Case
T-148/89 Tréfilunion v Commission [1995] ECR II-1063, paragraph 142), the Court
laid down a general principle that sufficient information must be made available to
the persons concerned to enable them to understand the method of calculation
used. Such information should therefore be supplied, a fortiori, during the pro­
cedure before the Court.
240 A distinction must be made between the Commission's discretion in regard to the
determination of the amount of the fines to be imposed and its obligation to state
the reasons on which its decisions are based. The Commission's discretion cannot
override the right to effective judicial protection. The Commission must therefore
provide detailed explanations of the manner in which it reached the final percent­
age of turnover adopted in order to fix each fine. That would not undermine the
secret nature of the Commission's discussions, nor involve disclosure of the under­
takings' business secrets. The turnover achieved by the undertakings to which the
Decision was addressed are neither secret nor confidential.
241 The Commission states that the applicant has misinterpreted the judgment in
Tréfilunion v Commission, cited above. In that judgment the Court held that the
objection grounded on failure to state reasons could not be upheld, since the state­
ment of reasons in the Decision had to be considered adequate. In the present case
too, the Commission gave an adequate statement of reasons for the fine imposed
on the applicant, in accordance with the relevant case-law of the Court of Justice
(points 167 to 172 of the Decision).
242 As regards the applicant's assertion that the indication of the percentage of turn­
over used in order to fix the amount of the fine does not disclose confidential
information of the undertakings which took part in the cartel, the Commission
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ENSO ESPAÑOLA v COMMISSION
points out that such information is normally published as an aggregate figure,
which does not allow competitors accurately to ascertain the turnover of the
undertaking in question in a given sector of its business, still less on a particular
product market.
Findings of the Court
243 The Court has already drawn attention to the purpose of the obligation to state the
reasons on which an individual decision is based (see paragraph 109 above).
244 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 infringe­
ments falls to be determined by reference to numerous factors including, in par­
ticular, the specific circumstances and context of the case and the deterrent char­
acter of the fines; moreover, no binding or exhaustive list of criteria to be applied
has been drawn up (order in Case C-137/95 P SPO and Others v Commission
[1996] ECR 1-1611, paragraph 54).
245 Moreover, when fixing the amount of each fine, the Commission has a margin of
discretion and cannot be considered obliged to apply a precise mathematical for­
mula for that purpose (see, to the same effect, the judgment in Case T-150/89
Martinelli v Commission [1995] ECR II-1165, paragraph 59).
246 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
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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 under­
takings 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, including the applicant, 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.
247 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 the
turnover on the Community cartonboard market in 1990 of each undertaking
addressed by the Decision. Fines of a basic level of 9 or 7.5% of that individual
turnover were then imposed, respectively, on the undertakings considered to be
the cartel 'ringleaders' and on the other undertakings. Finally, the Commission
took into account any cooperation by undertakings during the procedure before it.
Two undertakings received a reduction of two-thirds of the amount of their fines
on that basis, while other undertakings received a reduction of one-third.
248 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.
249 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
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ENSO ESPAÑOLA v COMMISSION
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 under­
takings, on the other.
250 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 com­
mitted by each of the undertakings in question (see, to the same effect, Case T-2/89
Petrofina v Commission [1991] ECR 11-1087, point 264). Similarly, point 168 of the
Decision, which must be read in the light of the general criteria concerning the
fines in point 167, contains an adequate statement of the criteria taken into account
in order to determine the general level of the fines.
251 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 undertak­
ings, 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.
252 The Commission also accepted at the hearing that nothing prevented it from indi­
cating in the Decision the factors which had been systematically taken into account
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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 cir­
cumstances, explanations given ex post facto cannot be taken into account (see
Case T-61/89 Dansk J3elsdyravlerforening v Commission [1992] ECR II-1931,
paragraph 131, and, to the same effect, Case T-30/89 Hihi v Commission [1991]
ECR II-1439, paragraph 136).
253 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 Tréfilunion v
Commission, cited above, 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 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.
254 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.
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ENSO ESPAÑOLA v COMMISSION
255 In the specific circumstances set out in paragraph 253 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 cal­
culation 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.
256 This plea cannot therefore be upheld.
B — The plea alleging incorrect assessment of the criteria adopted in the Decision in
order to determine the fine
Arguments of the parties
257 The applicant contests, first, the Commission's assertion that the addressees of the
Decision committed a deliberate infringement and attempted to disguise the exist­
ence of the cartel (point 167 of the Decision). In the case of the applicant, the
documents in the file do not support this assertion.
258 Second, the Commission should have taken into account the fact that the appli­
cant's business was concentrated on the Portuguese, Greek, Irish and Spanish mar­
kets, that is to say, national markets not covered by the Decision.
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
259 Third, the Commission did not correctly apply to the applicant the criterion of the
particular role played by each undertaking in the collusive arrangements (point
169, first paragraph, first indent, of the Decision). Not only did it not set out the
precise extent to which each undertaking participated and operated in the cartel,
but it merely made an overgeneralised distinction between the 'ringleaders' and the
other undertakings. That distinction was the criterion for application of the two
rates of 9 and 7.5%. The former rate was adopted in regard to the 'ringleaders',
who, according to the statements made to the press by the member of the Com­
mission responsible for competition matters, were those who had decided upon
and imposed the arrangements. The latter rate was applied to the other undertak­
ings, including the applicant. However, those two rates do not appropriately
reflect the role played by each undertaking in the collusive arrangements. The dif­
ference between the two rates is proportionately much less than that adopted in
previous similar cases. On that point, the applicant sets out in a table the different
fines, expressed as percentages, imposed in this case and in previous similar cases
on the undertakings deemed to be 'ringleaders' or 'other undertakings'.
260 According to the Commission, where the infringement of the competition rules is
as flagrant as it was in this case, the applicant cannot genuinely claim to have been
unaware that its acts were unlawful. Furthermore, it has been proved that docu­
mentary evidence of the activities of the PWG and of the JMC was suppressed in
order to conceal the unlawful conduct.
261 As regards the geographical scope of the infringement, the Commission refers to
the arguments already submitted by it (see point 76 et seq. and point 141 above).
262 Lastly, it considers that by distinguishing the categories of participants (point 170
of the Decision) it adequately took into account the role played by the various
undertakings in the cartel.
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ENSO ESPAÑOLA v COMMISSION
Findings of the Court
263 According to the third paragraph of point 167 of the Decision, 'a particularly grave
aspect of the infringement is that in an attempt to disguise the existence of the
cartel the undertakings went so far as to orchestrate in advance the date and
sequence of the announcement of each, major producer of the new price increases'.
The Decision also states as follows: 'the producers could as a result of this elabo­
rate scheme of deception have attributed the series of uniform, regular and
industry-wide price increases in the cartonboard sector to the phenomenon of
"oligopoly behaviour'" (point 73 third paragraph). Finally, according to the sixth
indent of point 168, the Commission, in determining the general level of fines,
took into account the fact that 'elaborate steps were taken to conceal. the true
nature and extent of the collusion (absence of any official minutes or documenta­
tion 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.)'.
264 The Commission rightly inferred from the evidence obtained that the undertakings
pre-arranged the dates and order of letters announcing price increases in an
attempt to disguise the existence of the concertation on prices. This pre­
arrangement is clear in particular from Stora's statements (appendix 39 to the state­
ment of objections, point 30): '[t]here was no standard procedure for who would
announce a price increase first and who would follow. The PWG would discuss
and agree on who would announce each price increase first and the dates of
announcements of the other main producers. The pattern was not the same each
time.' Its existence is also confirmed by the Rena note concerning the JMC meet­
ing of 6 September 1990 (appendix 118 to the statement of objections). That docu­
ment contains precise indications regarding the dates for the announcement of the
January 1991 price increases for certain member undertakings of the PWG (Mayr-
Melnhof, Feldmühle and Cascades), dates which correspond exactly to the dates
on which those undertakings actually sent their announcement letters (see points
87 and 88 of the Decision).
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
265 The absence of official minutes and the almost total absence of internal notes relat­
ing to the meetings of the PWG and of the JMC constitute, having regard to the
number of such meetings, to the length of time for which they continued and to
the nature of the discussions in question, sufficient proof of the Commission's alle­
gation that the participants were discouraged from taking notes.
266 It follows from the foregoing that the undertakings which participated in the meet­
ings of those bodies were not only aware of the unlawfulness of their conduct but
also took steps to conceal the collusion. Accordingly, the Commission was fully
entitled to hold those steps to be aggravating circumstances when assessing the
gravity of the infringement.
267 Next, as regards the applicant's argument that the Commission should have taken
into account the fact that its business was concentrated on the Portuguese, Greek,
Irish and Spanish markets, it suffices to find that it is apparent from the Decision
that those markets were covered by the collusion between the undertakings (see
paragraph 112 above). In those circumstances, the Commission did not commit an
error of assessment in taking into account, in order to determine the amount of the
fine, the turnover achieved by each undertaking on the Community cartonboard
market in 1990.
268 Finally, as regards the applicant's argument that the Commission did not correctly
assess the role which it played in the collusive arrangements, the Court points out
that the Commission has proved that, because the applicant participated in the
JMC meetings, it took part in collusion on prices and collusion on downtime from
February 1989 until April 1991.
269 On the other hand, the Court has found that the applicant could not be held
responsible for collusion on market shares.
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ENSO ESPAÑOLA v COMMISSION
270 Despite that finding, the Court considers, in the exercise of its unlimited jurisdic­
tion, that the gravity of the infringement of Article 85(1) of the Treaty which the
applicant is found to have committed, namely its participation in the collusion on
prices and on downtime, is still such that the amount of the fine should not be
reduced.
271 In that regard, the Court observes that the applicant did not participate in the
PWG meetings and fines were not therefore imposed upon it as a cartel 'ring­
leader'. Because, as the Commission itself states, the applicant was not a 'prime
mover' of the cartel (point 170, first paragraph, of the Decision), the level of fine
adopted in regard to it was 7.5% of its turnover on the Community cartonboard
market in 1990. That general level of the fines is justified (see paragraph 349 et seq.
below).
272 Furthermore, even though the Commission wrongly considered that producers
which were not represented in the PWG were 'well aware' of the collusion on
market shares (point 58, first paragraph, of the Decision), it is nevertheless clear
from the Decision itself that it was the undertakings meeting in the PWG which
took concerted action on the 'freezing' of market shares (in particular point 52 of
the Decision) and that there was no discussion of the market shares held by the
producers which were not represented in it. Moreover, as the Commission stated
in point 116, second paragraph, of the Decision, 'by their very nature the market
sharing arrangements (particularly the freezing of shares described in recitals 56
and 57) involved primarily the major producers'. The collusion on market shares
wrongly attributed to the applicant was therefore, in the Commission's own view,
merely a secondary aspect of collusion on prices.
273 Inasmuch as the applicant submits that the fine imposed on it is excessive in
comparison with the fines imposed on the 'ringleaders', the Court finds that the
Commission rightly considered that undertakings which participated in the meet­
ings of the PWG had to bear a special responsibility for the infringement (point
170 of the Decision). It then correctly evaluated the gravity of the infringement
committed by the 'ringleaders' of the cartel and by 'ordinary members' respec-
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
tively, by adopting, for the purpose of calculating the fines imposed on those two
categories of undertakings, basic rates of 9 and 7.5% of relevant turnover.
274 In that context, it must be emphasised that the applicant has not advanced specific
evidence to support its claim that the basic rates adopted for the purpose of cal­
culating the fines do not correctly reflect the special responsibility to be borne by
the undertakings which participated in the meetings of the PWG.
275 In the light of the foregoing, the plea cannot be upheld.
C — The plea alleging that the applicant did not commit the infringement inten­
tionally or negligently
276 The applicant submits that the fine is unjustified because it did not commit the
infringements deliberately or through gross negligence. It must be inferred from
the wording of Article 15(2) of Regulation No 17 that there is a third category of
conduct which is exempt from fines, that is to say, actions performed by undertak­
ings wholly innocently or involuntarily.
277 That plea cannot be upheld. It is settled case-law that it is not necessary for an
undertaking to have been aware that it was infringing Article 85(1) of the Treaty
for an infringement to be regarded as having been committed intentionally. It is
sufficient that it could not have been unaware that the contested conduct had as its
object or effect the restriction of competition in the common market (Case 246/86
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ENSO ESPAÑOLA v COMMISSION
Belasco and Others v Commission [1989] ECR 2117, paragraph 41, and Dansk
Pelsdyravlerforening v Commission, cited above, paragraph 157).
278 In the present case, the Commission has proved that, because the applicant partici­
pated in the JMC meetings, it participated in collusion on prices and collusion on
downtime during the period from February 1989 until April 1991. Having regard
to the nature of the actions it was found to have committed, the applicant must
have been aware that their object was to restrict competition.
D — The plea alleging that the fine was incorrectly calculated
Arguments of the parties
279 This plea is in two parts.
280 In the first part, the applicant submits that when the Commission determined the
amount of the fine it should not have taken into consideration the applicant's turn­
over on the markets which were not, according to the statement of objections, cov­
ered by the infringement, that is to say, the Spanish, Irish, Greek and Portuguese
markets. Nor does the applicant know whether the Commission used the turnover
corresponding to net sales volume.
281 In the second part, the applicant asserts that there are several factors which miti­
gate the gravity of the infringement. Those factors were not adequately taken into
account by the Commission.
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282 First, the Commission should have taken the applicant's conduct in the cartel into
account (Case 44/69 Buckler v Commission [1970] ECR 733, paragraph 56), which
was characterised by a lack of protective policy on its national market and an
increase in penetration of other markets.
283 Second, the applicant's limited or passive participation in the PG Paperboard did
not merit a fine or, at most, merited only a small fine (see Commission Decision
73/109/EEC of 2 January 1973 relating to a proceeding under Articles 85 and 86 of
the EEC Treaty (IV/26.918 — European sugar industry) (OJ 1973 L 140, p. 17)
and Commission Decision 84/405/EEC of 6 August 1984 relating to a proceeding
under Article 85 of the EEC Treaty (IV/30.350 — Zinc Producer Group) (OJ 1984
L 220, p. 27)).
284 Its role as 'outsider' is clear from the tables annexed to the Decision, which show
that it is alleged to have participated in only four of the seven price initiatives: the
Commission alleges that the applicant participated in price initiatives on only one
or two of the six markets involved. Moreover, the applicant is not accused of hav­
ing done so in respect of different grades of cartonboard.
285 Third, it did not implement the decisions allegedly adopted. In particular, the fact
that it considerably increased its exports (Commission Decision 69/240/EEC of 16
July 1969 relating to a proceeding under Article 85 of the Treaty (IV/26.623 —
International quinine cartel) (OJ 1969 L 192, p. 5)) and the fact that it did not
participate in the price increase on one of the markets to which the collusion
related (Commission Decision 69/243/EEC of 24 July 1969, relating to a proceed­
ing under Article 85 of the EEC Treaty (IV/26.267 — Dyestuffs) (OJ 1969 L 195,
p. 11)) should have been taken into account by the Commission.
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ENSO ESPAÑOLA v COMMISSION
286 Furthermore, the Commission has not adduced sufficient evidence of the appli­
cant's actual conduct.
287 Fourth, lack of intention to commit an infringement should, at least, lead to a
reduction in the fine. As regards, in particular, the information exchange system,
the applicant had only recently become aware of the Community competition
rules, following the accession of the Kingdom of Spain to the Community in 1986.
Such knowledge cannot be compared to the other undertakings' long-standing
awareness.
288 Fifth, the fact that it was the first time that the practices had been held to be con­
trary to competition law justifies a reduction in the fine. The same is true of the —
novel — classification of the information exchange as an infringement of the com­
petition rules.
289 Sixth, the Commission and the Court have always taken the view that a crisis or
continuous recession in the industry in question should regarded as a mitigating
factor.
290 Furthermore, the applicant's own loss-making situation during the years covered
by the alleged cartel should have been taken into account.
291 Seventh, the applicant's small size in comparison with the European producers as a
whole should have been taken into account when the amount of the fine was
evaluated in economic terms. A mere reference to point 169 of the Decision does
not disclose whether that factor was actually taken into account when the fine was
determined.
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
292 Eighth, the applicant considers that the fact that no measures were taken to moni­
tor the implementation of the alleged cartel (points 82 and 136 of the Decision) is
also a ground for reducing the fine.
293 Finally, it considers that there is no foundation for the Commission's claim that
the Court should increase its fine by one third. It has not changed its position in
relation to that adopted during the procedure before the Commission.
294 The Commission contends that its decision to use the turnover in the Community
of the undertakings which participated in the infringement is within the limits of
its discretion under Article 15(2) of Regulation No 17.
295 As regards the alleged mitigating circumstances, it submits that neither the appli­
cant's decision to increase its production capacity in the expectation of an increase
in demand, nor its alleged aggressive export policy, can be regarded as inconsistent
with the cartel's aims or its active participation in it.
296 It correctly assessed the applicant's role in the cartel by not including it amongst
the 'ringleaders'. Moreover, it correctly assessed the applicant's acts in the light of
Article 85(1).
297 As regards the mitigating factor said to result from the fact that the information
exchange had not previously been held to be an infringement, the Commission
states that the use of an information exchange system as a support for a cartel can­
not be regarded as a novel infringement of competition law.
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ENSO ESPAÑOLA v COMMISSION
298 The situation in the industry does not justify a reduction in the fine. Furthermore,
it is not required to take the financial situation of the undertakings into account
when it fixes the fine (judgment in Joined Cases 96/82 to 102/82, 104/82, 105/82,
108/82 and 110/82 IA2 and Others v Commission [1983] ECR 3369, paragraph
55).
299 The applicant's small size was duly taken into consideration, as the respective
importance of each undertaking in the industry was taken into account in order to
determine the amount of the fine (point 169 of the Decision).
300 Finally, as to the alleged absence of measures to monitor the implementation of the
cartel, it is apparent from points 82 and 136 of the Decision that steps were taken
by the members of the cartel in the JMC, inter alia, to track the price initiatives,
sales and order backlogs, which enabled them to monitor and discipline undertak­
ings which had not adopted the agreed course of conduct.
301 The Commission concludes that this plea has no foundation whatsoever. It also
requests the Court, in the exercise of its unlimited jurisdiction in relation to fines,
to increase the fine imposed on the applicant by at least one third, the amount cor­
responding to the reduction in the fine awarded to it for not disputing, in the reply
to the statement of objections, the principal allegations of fact on which the Com­
mission based its complaints. The reduction in the fine has no longer any real jus­
tification in fact, because the applicant has contested before the Court all aspects of
the infringement other than its participation in the meetings.
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Findings of the Court
302 The Court has already held that, as the Portuguese, Greek, Irish and Spanish mar­
kets were covered by the Decision, the Commission did not commit an error of
assessment when, in order to determine the amount of the fine, it took into
account the turnover achieved by each of the undertakings on the Community
cartonboard market in 1990, including turnover on the national markets in ques­
tion (see paragraph 267 above).
303 The first three factors on which the applicant relies, namely its conduct in the car­
tel, its restricted and passive participation in the bodies of the PG Paperboard and
its failure to implement the price increases agreed in the PG Paperboard, all seek to
contest the Commission's assessment of the applicant's role in the cartel.
304 The Commission has proved that, because the applicant participated in the JMC
meetings, it participated in collusion on prices and on downtime during the period
from February 1989 until April 1991. Moreover, as the Court has already found,
the fact that the infringement committed by the applicant did not extend to collu­
sion on market shares does not justify a reduction in the fine imposed.
305 In the present case, the applicant cannot claim that it played a less active role in the
cartel than the other undertakings considered to be its 'ordinary members'. It is
clear from Table 4 annexed to the Decision that from February 1989 until April
1991 it was a regular participant in the JMC meetings.
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ENSO ESPAÑOLA v COMMISSION
306 Furthermore, the fact that an undertaking which has been proved to have partici­
pated 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 competi­
tors follows a more or less independent policy on the market may simply be trying
to exploit the cartel for its own benefit.
307 In the present case, it cannot be concluded from the evidence adduced by the
applicant that its actual conduct on the market was of such a nature as to counter­
act the anti-competitive effects of the infringement found. In particular, in its reply
to the statement of objections, the applicant submitted that it had not announced
price increases to customers but had merely supplied the new price rates to its
agents in order that they should use them in individual negotiations with custom­
ers. It relied on graphs in that regard (pp. 37 and 39 of its reply to the statement of
objections) which, it claimed, proved that prices obtained had been lower than
quoted prices and that it had been able to increase its market shares on several
export markets.
308 However, in the Decision the Commission accepts that transaction prices were not
always the same as announced prices. It states, in particular, (point 101, sixth para­
graph): '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.' The applicant has not therefore proved that its transaction prices
were materially different from those of the other participants in the infringement.
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
309 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.
310 In those circumstances, the Commission was entitled to consider that the appli­
cant's conduct on the market, allegedly different from that agreed in the PG Paper-
board, did not constitute a mitigating factor.
311 Nor can the applicant claim that it did not intend to commit the infringement. The
Court points out that, having regard to the nature of the acts found to have been
committed, the applicant must have been aware that their objective was to restrict
competition (paragraphs 277 and 278 above).
312 The applicant also pleads that classification of the information exchange as an
infringement of the competition rules is novel.
313 The Court points out, however, that, according to Article 1 of the Decision, the
undertakings referred to therein had infringed Article 85(1) of the EC Treaty by
participating in an agreement and concerted practice whereby they, inter alia,
'exchanged commercial information on deliveries, prices, plant standstills, order
backlogs and machine utilisation rates in support of the above measures', that is to
say, collusion on prices, market shares and downtime.
II -1968
ENSO ESPAÑOLA v COMMISSION
314 The Commission therefore took the view that the information exchange was con­
trary to Article 85(1) of the Treaty only in that it supported the cartel. Accord­
ingly, the applicant's argument is without foundation.
315 Nor has the applicant proved that -during the period covered by the Decision the
cartonboard industry was in such a crisis as to justify a reduction in the fines.
316 It cannot submit that its loss-making situation should have constituted a mitigating
factor. To find that there is such an obligation would be tantamount to giving
an unjustified competitive advantage to undertakings least well adapted to the
market conditions (judgment in IAZ and Others v Commission, cited above, para­
graph 55).
317 As regards the applicant's small size, the Court finds that this factor was taken into
account by the Commission, because it took each undertaking's turnover on the
Community cartonboard market in 1990 as a basis for determining the amount of
the fine.
318 As to the final mitigating factor, the alleged absence of measures to monitor the
implementation of the cartel, the Court points out that, although the existence of
measures to monitor the implementation of a cartel may be taken into account as
an aggravating factor when fixing the fines, the absence of such measures cannot,
in itself, constitute a mitigating factor. Moreover, the applicant itself refers, inter
alia, to point 136 of the Decision, according to which (last paragraph of that point)
'the documentation makes it clear, however, that the implementation of price ini­
tiatives was closely monitored and that failure to cooperate would be the subject of
discussions in the JMC, with the perceived laggards being urged to support the
price increases by the market leaders'. Since the applicant has not disputed the
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
correctness of that finding, there is no basis for the view that the Commission
could have taken into account, as a mitigating circumstance, the absence of mea­
sures to monitor the implementation of the cartel.
319 Finally, as regards the Commission's request that the Court increase the fine, it
suffices to find that the Commission, in replying to a question from the Court at
the hearing, was unable to specify which points had been disputed by the applicant
in its pleadings but not in its reply to the statement of objections. In view of that
finding alone, the Commission's request cannot be granted.
320 In the light of the foregoing, the present plea and the Commission's request for an
increase in the fine imposed on the applicant must be rejected.
E — The plea of infringement of the principle of equal treatment
First part of the plea: failure to take into account the fall in value of the Spanish
peseta
Arguments of the parties
321 The applicant submits that the failure to take into account the effects of fall in
value of certain European currencies, in this case the Spanish peseta, treats persons
in the same situation differently.
II-1970
ENSO ESPAÑOLA v COMMISSION
322 From January 1991 until July 1994 the Spanish peseta fell heavily in value against
the ecu. The exchange rate between the PTA and the ecu in July 1990 was one ecu
to PTA 127.29, whereas in July 1994 it was one ecu to PTA 157.32. The economic
impact of payment of the fine expressed in ecus is therefore proportionately much
greater for undertakings with the majority of their turnover in currencies that have
fallen in value against the ecu.
323 In procedures in which fines are imposed collectively, differences between the fines
imposed on the undertakings must be justified by objective reasons associated with
the attitude and/or subjective conduct of each of them. In the present case, how­
ever, the Decision does not contain any reasons to justify the de facto discrimi­
nation resulting from expression of the fine in ecus. The Commission therefore
acted negligently and infringed the principle of equal treatment.
324 In order to calculate the fine imposed, the Commission converted the turnover
achieved during the reference year, that is to say, 1990, into ecus using the average
rate applicable to that year. It then determined the amount of the fine by applying
the percentage rate previously chosen, that is to say, in the applicant's own case,
the basic rate of 7.5%, which was first of all reduced by 33.3% because the appli­
cant had not disputed the essential facts, then by an additional percentage in order
to take into account the shortness of its participation in the infringement. The
applicant asserts that in national currency it would today have to pay approxi­
mately PTA 275 000 000 in order to discharge the fine. If the Commission had
applied the current exchange rate in order to convert the applicant's turnover from
cartonboard sales in the Community in 1990 the amount of the fine would have
been ECU 1 420 000, or, at the current exchange rate, approximately
PTA 225 000 000. The applicant's fine was thereby increased by PTA 50 000 000.
325 The Commission's assertion that it is necessary to convert turnover figures
expressed in different currencies into ecus in order to compare them, and so guar­
antee equality of treatment, is wholly erroneous. It is not necessary to convert
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
turnover into ecus in order to comply with the principle of equal treatment,
because that principle is observed where, for two undertakings whose infringement
is of the same gravity and same duration, identical percentages are applied to the
turnover figures corresponding to the same financial year. That conclusion is not
inconsistent with the judgment in Musique Diffusion Française and Others v Com­
mission, cited above.
326 The origin of the discrimination by the Commission lies in the expression of the
fines in ecus. It runs counter to the case-law of the Court of Justice, according to
which there is no need to convert into ecus. There is no primary or secondary rule
of Community law which requires such conversion; nor is it justified in order to
reflect economic reality (Joined Cases 41/73, 43/73 and 44/73 Société Anonyme
Générale Sucrière and Others v Commission [1977] ECR 445, paragraphs 12 to 15,
25 and 26). In his Opinion in that case, Advocate General Warner stated that it was
necessary for the Commission, when calculating fines in ecus, to take into account
the reality of monetary events in order to avoid undesirable distortions. He stated
that the Commission must first decide in which currency it will quantify the fine
for the purposes of enforcement and then decide on the appropriate amount of it
having regard to the true value of that currency.
327 In other areas the Court has recommended that, in order to avoid any inequality
of treatment, medical expenses should be reimbursed in national currency to Com­
munity officials residing in different countries (Case 256/78 Misenta v Commission
[1980] ECR 219). It has ensured that the principle of equal treatment is observed
in disputes concerning the effects of monetary fluctuations, in particular in the area
of the common commercial policy (Case 135/79 Gedelfi Großeinkauf [1980] ECR
1713 and Case 248/80 Gebrüder Glunz [1982] ECR 197) and of the common agri­
cultural policy (Case 39/84 Maizena and Others [1985] ECR 2115 and Case 46/84
Nordgetreide [1985] ECR 3127).
328 Regulation No 17 does not require the ecu to be used in order to calculate or to
express the amount of the fine provided for in Article 15(2). In providing for the
II -1972
ENSO ESPAÑOLA v COMMISSION
possibility of imposing a fine of up to 10% of turnover in the preceding business
year of each undertaking participating in the infringement, the regulation clearly
links the amount of the fine to the advantage gained by the undertaking from the
infringement. That return is reflected principally in the turnover achieved, which is
calculated in national currency, not in ecus.
329 Finally, the use of the ecu is not practical. The fine is paid in national currency and,
if not paid, the -Commission would enforce it in national currency.
330 The Commission considers that, where fines are imposed on undertakings estab­
lished in different Member States whose turnover figures -are expressed in different
currencies, the principle of equal treatment requires that it should be possible to
compare those fines. The only way in which to compare separate currencies is to
convert them into the same unit, in this case the ecu. The Court of Justice has
acknowledged that the fines must be comparable. It has held that, to the extent
that reliance is to be placed on the turnover of undertakings involved in the same
infringement for the purpose of determining the proportions between the fines to
be imposed, the period to be taken into consideration must be ascertained in such
a way that the resulting turnovers are as comparable as possible (Musique Diffu­
sion Française and Others v Commission, cited above,-paragraph 122).
331 In the present case, the Commission's choice, namely to calculate the fines on the
basis of turnover in 1990 converted into ecus at the average exchange rate for 1990,
is wholly justified. Not only does that represent the Commission's well established
practice, which the Community judicature has not criticised, but it also reflects in
a precise manner the whole of any benefits derived from the infringement (Joined
Cases T-39/93 and T-40/92 CB and Europay v Commission [1994] ECR 11-49).
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
332 The judgment in Société Anonyme Générale Sucrière and Others v Commission,
cited above, is to be read in a very specific context and cannot therefore support
the applicant's assertions. It follows from that judgment, interpreted in the light of
the facts in that case, that the Commission must fix the amount of the fines in ecu,
whereas the time of payment and the paying bank determine the currency and rate
of exchange.
333 Finally, thanks to the relative stability of the ecu, the use of the ecu in order to
calculate and fix the amount of fines makes it possible to avoid the discrimination
between undertakings which might be caused by monetary fluctuations. That sys­
tem enables the Commission to ensure that fines actually represent a given per­
centage of the real value of an undertaking's turnover during the reference year.
Findings of the Court
334 Article 4 of the Decision states that the fines are to be payable in ecus.
335 Nothing precludes the Commission from expressing the amount of the fine in
ecus, a monetary unit which is convertible into national currency. That also allows
the undertakings more easily to compare the amounts of the fines imposed. More­
over, the possibility of converting the ecu into national currency distinguishes that
monetary unit from the 'unit of account' referred to in Article 15(2) of Regulation
No 17, in regard to which the Court expressly held that, since it was not a cur­
rency in which payment was made, it necessarily meant that the amount of the fine
had to be determined in national currency (Société Anonyme Générale Sucrière and
Others v Commission, cited above, paragraph 15).
II -1974
ENSO ESPAÑOLA v COMMISSION
336 The Court cannot uphold the applicant's criticism in regard to the legality of the
Commission's method of converting into ecus the undertakings' reference turn­
over at the average exchange rate for that same year (1990).
337 First of all, the Commission should ordinarily use one and the same method of
calculating the fines imposed on the undertakings penalised for having participated
in the same infringement (see Musique Diffusion Française and Others v Commis­
sion, cited above, paragraph 122).
338 Second, in order to be able to compare the different turnover figures sent to it,
which are expressed in the respective national currencies of the undertakings con­
cerned, the Commission must convert those figures into a single monetary unit. As
the value of the ecu is determined in accordance with the value of each national
currency of the Member States, the Commission rightly converted the turnover
figure of each of the undertakings into ecus.
339 The Commission also acted correctly in taking the turnover in the reference year
(1990) and converting that figure into ecus on the basis of the average exchange
rates for that same year. In the first case, the taking into account of the turnover
achieved by each undertaking during the reference year, that is to say, the last com­
plete year of the period of infringement found, enabled the Commission to assess
the size and economic power of each undertaking and the scale of the infringement
committed by each of them, those aspects being relevant for an assessment of the
gravity of the infringement committed by each undertaking (see Musique Diffusion
Française and Others v Commission, cited above, paragraphs 120 and 121). In the
second place, taking into account, in order to convert the turnover figures in ques­
tion into ecus, the average exchange rates for the reference year adopted, enabled
the Commission to prevent any monetary fluctuations occurring after the cessation
of the infringement from affecting the assessment of the undertakings' relative size
and economic power and the scale of the infringement committed by each of them
and, accordingly, its assessment of the gravity of that infringement. The assessment
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
of the gravity of an infringement must have regard to the economic reality as
revealed at the time when that infringement was committed.
340 Thus, the argument that the turnover figure for the reference year should have
been converted into ecus on the basis of the rate of exchange at the date of adop­
tion of the Decision cannot be upheld. The method of calculating the fine by using
the average rate of exchange for the reference year makes it possible to avoid the
uncertain effects of changes in the real value of the national currencies which may,
and in this case actually did, arise between the reference year and the year in which
the Decision was adopted. Although this method may mean ťhat a given undertak­
ing must pay an amount, expressed in national currency, which is in nominal terms
greater or less than that which it would have had to pay if the rate of exchange at
the date of adoption of the Decision had been applied, that is merely the logical
consequence ©f fluctuations in the real values of the various national currencies.
341 In addition, several of the addressee undertakings of the Decision own carton-
board mills in more than one country (see points 7, 8 and 11 of the Decision).
Moreover, the addressees of the Decision generally carry out their activities in
more than one Member State through the intermediary of local representatives. As
a result, they operate in several national currencies. The applicant itself achieves
more than one third its turnover on export markets. Where a decision like the
decision at issue penalises infringements of Article 85(1) of the Treaty and where
the addressees of the decision generally pursue their activities in several Member
States, the turnover for the reference year converted into ecus at the average
exchange rate used during that same year is made up of the sum of the turnovers
achieved in each country in which the undertaking operates. It therefore takes per­
fect account of the actual economic situation of the undertakings concerned during
the reference year.
342 The first part of the plea must therefore be rejected.
II -1976
ENSO ESPAÑOLA v COMMISSION
The second part of the plea: the level of fines is higher than that adopted by the
Commission in comparable cases
Arguments of the parties
343 The applicant contends that, as the Commission has itself accepted (written ques­
tion No 2296/85, OJ 1986 C 123, p. 26), the Commission must observe the prin­
ciple of equal treatment in regard to the level of fine imposed in comparable deci­
sions.
344 In the present case, the principle of equal treatment was infringed, because the per­
centage of turnover used in order to determine the fine was 9% for the undertak­
ings considered to be the ringleaders of the cartel. That level of fine is considerably
higher than that in previous similar decisions (in particular Commission Decision
89/515/EEC of 2 August 1989 relating to a proceeding under Article 85 of the
EEC Treaty (IV/31.553 — welded steel mesh) (OJ 1989 L 260, p. 1), and Commis­
sion Decision 94/215/ECSC of 16 February 1994 relating to proceeding pursuant
to Article 65 of the ECSC Treaty concerning agreements and concerted practices
engaged in by European producers of beams (OJ 1994 L 116, p. 1)). In particular,
the applicant submits that during 1994 the Commission adopted, in less than five
months, two quite different decisions concerning the same type of pan-European
cartel, but did not provide a real statement of reasons for its change in approach. It
must therefore be concluded that there was discrimination or unequal treatment of
undertakings in comparable circumstances.
345 The Commission cannot use its discretion in such a way as to commit blatant
infringements of the principle of equal treatment.
346 Furthermore, even though the Commission considers that the correct application
of the Community competition rules presupposes that it should be able to adapt
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
the level of fines at any moment to the needs of competition policy, that does not
mean that the Commission is authorised to raise and lower the general level of
fines from one infringement to another without giving adequate objective reasons.
347 Finally, the applicant considers, relying on Commission Decision 94/815/EEC of
30 November 1994 relating to a proceeding under Article 85 of the EC Treaty
(IV/33.126 and 33.322 — Cement) (OJ 1994 L 343, p. 1), that there is, in compari­
son with the present case, a blatant infringement of the principle of equal treat­
ment and a clear disproportion in setting the overall percentage of the turnover
adopted in order to determine the amount of the fines.
348 The Commission considers that, having regard to the gravity, geographical extent
and duration of the infringement found, the level of the fine is wholly justified.
Findings of the Court
349 Under Article 15(2) of Regulation No 17, the Commission may by decision
impose on undertakings fines ranging from ECU 1 000 to 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).
II-1978
ENSO ESPAÑOLA v COMMISSION
350 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; dis­
couraging 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.'
351 It is common ground that fines of a basic level of 9 or 7.5% of the turnover on the
Community cartonboard market in 1990 of each undertaking addressed by the
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JUDGMENT OF 14. 5. 1998— CASE T-348/94
Decision were imposed on the undertakings regarded as the 'ringleaders' of the
cartel and on the other undertakings respectively.
352 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. Conse­
quently, 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 Case T-13/89 ICI v Commission [1992] ECR II-1021, paragraph
385).
353 Second, the Commission rightly argued at the hearing that, on account of the spe­
cific 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 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 L230, p. 1, 'the Polypro­
pylene decision'), which the Commission itself considered to be the most similar
to the decision in the present case. Unlike in the Polypropylene case, no general
mitigating circumstance was taken into account in the present case when determin­
ing the general level of fines. Moreover, as the Court has already held, the intricate
steps taken by the undertakings to conceal the existence of the infringement con­
stitute a particularly serious aspect of it which differentiates it from the infringe­
ments previously found by the Commission.
II -1980
ENSO ESPAÑOLA v COMMISSION
354 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.
355 On the basis of those factors, the criteria set out in point 168 of the Decision jus­
tify the general level of fines set by the Commission.
356 Finally, in setting the general level of fines in the present case, the Commission did
not so depart from its previous line of decisions as to oblige it to give a more
detailed account of the reasons for its assessment of the gravity of the infringement
(see, inter alia, Groupement des Fabricants de Papiers Peints de Belgique and Oth­
ers v Commission, paragraph 31).
357 The second part of the plea must therefore also be rejected.
358 In the light of the foregoing, the plea must be rejected in its entirety.
F — The plea of infringement of the principle of proportionality
359 The applicant contends that the principle of proportionality was infringed in this
case, because the crisis in which the industry currently finds itself was totally
ignored when the fine was assessed. The same is true of the difference in the treat-
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
ment of undertakings in the present case and that of undertakings in similar pro­
ceedings before the Commission.
360 The fine, corresponding to 2.2% of turnover, imposed on Tetra Pak for a particu­
larly serious and lengthy infringement (Commission Decision 92/163/EEC of 24
July 1991 relating to a proceeding under Article 86 of the EEC Treaty (IV/31.043
— Tetra Pak II) (OJ 1992 L 72, p. 1)) was much lower than that imposed on the
applicant, even though the infringements it is alleged to have committed were
much shorter and less serious than those alleged against Tetra Pak.
361 The disproportion between the basic rates adopted for the 'ringleaders' of the car­
tel and for its 'ordinary members' is a further clear infringement of the principle of
proportionality.
362 The Court points out that the applicant has not proved that the cartonboard
industry is currently in crisis. Nor has it explained why such a situation, even if
proved, should be taken into account when fixing the fines.
363 For the remainder, the applicant merely repeats, in support of its plea, the argu­
ments which it has already raised in support of its other pleas for annulment or
reduction of the fine.
364 As those arguments have been rejected, the present plea cannot be upheld.
II -1982
ENSO ESPAÑOLA v COMMISSION
365 In the light of the whole of the foregoing, Article 1 of the Decision must be
annulled as against the applicant to the extent that it states that the applicant par­
ticipated in an infringement of Article 85(1) of the Treaty prior to February 1989.
Furthermore, the eighth indent of Article 1 of the Decision, according to which
the object of the agreement and concerted practice in which it participated was to
'[maintain] the market shares of the major producers at constant levels, subject to
modification from time to time' must be annulled as against the applicant.
366 As regards the amount of the fine imposed, regard must be had to the fact that the
applicant can be held responsible for an infringement of Article 85(1) of the Treaty
only for the period from February 1989 until April 1991. On the other hand, as
has already been found (see paragraph 269 et seq. above), the fact that the infringe­
ment committed by the applicant did not extend to collusion on market shares
does not justify a reduction in the amount of the fine imposed.
367 As the other pleas relied upon by the applicant in support of its application for
annulment or reduction of the fine have been rejected, the Court, exercising its
unlimited jurisdiction, will fix the amount of that fine at ECU 1 200 000.
368 The remainder of the application must be rejected.
Costs
369 Under Article 87(3) of the Rules of Procedure, the Court may, where each party
succeeds on some and fails on other grounds, order costs to be shared or order
each party to bear its own costs. As the action has been only partially successful,
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JUDGMENT OF 14. 5. 1998 — CASE T-348/94
the Court considers it fair in the circumstances of the case to order each party to
bear its own costs.
370 The applicant has sought an order that the Commission should pay the costs,
including the costs and interest associated with the provision of a bank guarantee
or payment of the fine. However, it is settled law that expenses incurred in provid­
ing a bank guarantee in order to avoid the enforcement of a decision are not
expenses incurred for the purpose of the proceedings within the meaning of Article
91(b) of the Rules of Procedure (see the order of 20 November 1987 in Case
183/83 Krupp v Commission [1987] ECR 4611, paragraph 10, and Case T-77/92
Parker Pen v Commission [1994] ECR 11-549, paragraph 101). The same holds for
expenses incurred in payment of the fine.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition)
hereby:
1. Annuls, as regards the applicant, Article 1 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) in so far as the date of the begin­
ning of the infringement alleged against it is stated to be prior to February
1989;
II -1984
ENSO ESPAÑOLA v COMMISSION
2. Annuls, as regards the applicant, the eighth indent of Article 1 of Decision
94/601;
3. Sets the amount of the fine imposed on the applicant by Article 3 of
Decision 94/601 at ECU 1 200 000;
4. Dismisses the application as regards the remaining claims;
5. Orders each party to bear its own costs.
Vesterdorf Briët Lindh
Potocki Cooke
Delivered in open court in Luxembourg on 14 May 1998.
H. Jung
Registrar
B. Vesterdorf
President
II - 1985
JUDGMENT OF 14. 5. 1998 — CASE T-348/94
Summary
Facts II - 1885
Procedure 11-1892
Forms of order sought II - 1893
The application for annulment of the Decision II - 1894
A — The plea of infringement of the fundamental right to an independent and impartial
tribunal II - 1894
Arguments of the parties II - 1894
Findings of the Court II - 1900
B — The plea of infringement of the rights of the defence II - 1902
Arguments of the parties II - 1902
Findings of the Court II - 1906
C — The plea of infringement of Article 190 of the Treaty II - 1913
Arguments of the parties II - 1913
Findings of the Court II - 1914
D — The plea that Article 85(1) of the Treaty was wrongly applied to the applicant's
actions II - 1915
Arguments of the parties II - 1915
Findings of the Court II - 1921
The first three parts of the plea: the applicant did not participate in the
infringement found in Article 1 of the Decision II - 1921
1. Period from March 1988 until February 1989 II - 1922
(a) The applicant's participation in meetings of the PC II - 1923
(b) The applicant's participation in one meeting of the Economic Com­
mittee II - 1927
(c) The applicant's actual conduct in regard to prices II - 1930
(d) Conclusion relating to the period in question II - 1931
2. Period between February 1989 and April 1991 II - 1931
(a) The applicant's participation in price collusion II - 1932
(b) The applicant's participation in collusion on downtime II - 1936
(c) The applicant's participation in collusion on market shares II - 1943
(d) The applicant's participation in a common industry plan to restrict
competition II - 1946
II - 1986
ENSO ESPAÑOLA v COMMISSION
(e) Conclusions regarding the period from February 1989 until April
1991 II - 1947
The fourth part of the plea: no definition of the relevant geographical market II - 1947
The application for annulment or reduction of the fine II - 1949
A — The plea of infringement of Article 190 of the Treaty in regard to the fines II - 1949
Arguments of the parties II - 1949
Findings of the Court II - 1951
B — The plea alleging incorrect assessment of the criteria adopted in the Decision in
order to determine the fine II - 1955
Arguments of the parties II - 1955
Findings of the Court II - 1957
C — The plea alleging that the applicant did not commit the infringement intentionally
or negligently II - 1960
D — The plea alleging that the fine was incorrectly calculated II - 1961
Arguments of the parties II - 1961
Findings of the Court II - 1966
E — The plea of infringement of the principle of equal treatment II - 1970
First part of the plea: failure to take into account the fall in value of the Spanish
peseta 11-1970
Arguments of the parties II - 1970
Findings of the Court II - 1974
The second part of the plea: the level of fines is higher than that adopted by the
Commission in comparable cases II - 1977
Arguments of the parties II - 1977
Findings of the Court II - 1978
F — The plea of infringement of the principle of proportionality II - 1981
Costs II - 1983
II-1987