Judgment — ECLI:EU:T:1998:91
Date: 1998-05-14
Language of the case: Dutch
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;Determining the amount of the fine;Definition of undertaking
Procedure: Action for annulment - unfounded;Appeal against penalty - successful
Origin: Netherlands

summary publication, and T-151/89 Société des 
Treillis et Panneaux Soudés ν Commission [1995] ECR II-1191, summary publica­
tion), that this Court stressed for the first time that it is desirable for undertakings 
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JUDGMENT OF 14. 5. 1998 — CASE T-309/94 
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. 
78 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. 
79 In the specific circumstances set out in paragraph 77 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. 
80 This plea cannot therefore be upheld. 
The pleas that the applicant was wrongly considered to be one of the 'ringleaders' of 
the cartel and that there is an inadequate statement of reasons in that regard 
Arguments of the parties 
81 The applicant claims that the Commission wrongly considered it to be one of the 
ringleaders of the cartel (point 170 of the Decision). 
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KNP BT ν COMMISSION 
82 The Commission assumed that the PWG and the PC agreed to have the applicant's 
representative as their president because of the strength of the K N P group. How­
ever, the applicant is only a small producer of cartonboard which 'supplied' a 
president for the PWG at the request of his colleagues and for a period limited to 
one year. Subsequently, at the request of his colleagues, his authority to act as 
president was extended by one year. Moreover, that person, who was also 
co-manager of K N P Vouwkarton, was chosen to carry out that task because of his 
'neutrality' and his knowledge of languages. Moreover, he definitely presided over 
only four of the eight PWG meetings held during his presidency. 
8 3 The position held by that member of its management board does not therefore 
prove that the applicant was a driving force behind the cartel. 
84 Furthermore, the Decision contains an inadequate statement of reasons, because it 
does not expressly indicate whether account was taken of the shortness of the 
applicant's presidency of the PWG. The Commission states in its defence that in 
order to calculate the fine it took into account the fact that the applicant had to be 
regarded as one of the ringleaders even after 1988. That consideration is erroneous, 
because the Decision states (in point 170) that the applicant should be regarded as 
one of the ringleaders only 'during the period of its membership of the PWG'. 
85 The Commission states that the applicant was considered to be one of the cartel 
ringleaders because it participated in, and indeed presided over, the PWG. 
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JUDGMENT OF 14. 5. 1998 — CASE T-309/94 
86 Its role as ringleader is confirmed by documents (in essence, the minutes originat­
ing from the PG Paperboard) annexed to the rejoinder, in which the name of the 
member of its management board appears. 
87 Lastly the Commission was aware of the limited period of the applicant's partici­
pation in PWG meetings. However, it was unreasonable to take that fact into con­
sideration when calculating the fine, given that the increased rate of fine applied to 
the applicant because it was a ringleader was imposed only in regard to KNP 
Vouwkarton's participation. 
Findings of the Court 
88 According to point 170, first paragraph, of the Decision, 'the "ringleaders", namely 
the major producers of cartonboard which took part in the PWG (Cascades, Finn-
board, [Mayr-Melnhof], MoDo, Sarrio and Stora), must bear a special responsibil­
ity. They clearly constituted the main decision-makers and were the prime movers 
of the cartel.' 
89 According to the second paragraph of point 170, the applicant must 'also therefore 
be considered as a ringleader of the cartel during the period of its membership of 
the PWG', that is to say until mid 1988 (point 36, second paragraph). The Decision 
states that the applicant's representative presided over the PC and the PWG 'at a 
critical time'. 
90 Furthermore, it amply describes the central role of the PWG in the cartel (in par­
ticular, points 36 to 38 and 130 to 132 of the Decision). 
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KNP BT ν COMMISSION 
91 The Decision therefore clearly contains an adequate statement of the reasons for 
the Commission's view that the applicant was a 'ringleader'. 
92 As to the correctness of those reasons, the Court points out that the applicant does 
not dispute that it participated in the PWG meetings, nor that it provided the 
president for it during the first two years of the cartel. N o r does it dispute that the 
object of the PWG was in fact essentially anticompetitive or that the conduct 
found by the Commission was in fact anticompetitive. 
93 The applicant was therefore correctly characterized as a 'ringleader' for the pur­
pose of calculating the fine. Its actual conduct in the PWG and its reasons for 
assuming the presidency of that body do not vitiate the Commission's finding. 
94 However, having regard to the above considerations, the applicant could have been 
characterized as a 'ringleader', and therefore fined on that basis, only in respect of 
the period from mid-1986 until mid-1988. The Court will examine the implications 
of that conclusion in the context of its unlimited jurisdiction in regard to fines 
when it considers the plea alleging errors in the calculation of the fine imposed on 
the applicant (paragraph 104 et seq. below). 
95 Consequently, this plea cannot be upheld. 
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JUDGMENT OF 14. 5. 1998 — CASE T-309/94 
The plea that errors were made in calculating the fine imposed on the applicant 
Arguments of the parties 
96 The applicant submits that when the Commission calculated the amount of the 
fine, it should have taken into account Badische's insignificant market share and its 
peripheral participation in the infringement from the end of 1989 (point 162 of the 
Decision), that participation being limited to the United Kingdom. 
97 Moreover, the fine imposed is based incorrectly on the participation in the cartel 
by the applicant's two subsidiaries throughout the period of the infringement, 
namely from mid-1986 until April 1991. The Dutch-language version of Article 1 
of the Decision indicates that it participated in an agreement and concerted prac­
tice originating in mid-1988, not mid-1986. It requests the Court to draw the 
appropriate conclusions from that obvious error. 
98 At the hearing the applicant's representative stated that one of the figures applied 
in order to calculate the fine did not correspond to Badische's actual turnover. The 
Commission had taken into account Badische's turnover on the Community car-
tonboard market in 1989, whereas, in accordance with the general criteria adopted 
in order to calculate the fines, it should have taken into account the turnover on 
that market in 1990. Furthermore, it had wrongly included intra-group sales. 
99 The Commission submits that, since the fines were calculated on the basis of the 
turnover of the undertakings concerned, Badische's small market share was taken 
into account when the fine was determined. 
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KNP BT ν COMMISSION 
100 It states that the error in the Dutch version of the Decision concerning the begin­
ning of the cartel was obvious to a careful reader. That is confirmed by the fact 
that the existence of that error was raised by the applicant only in its reply. 
101 Finally, in reply to a written question put by the Court, the Commission produced 
a table setting out details of the calculation of the fines imposed on the undertak­
ings addressed by the Decision. That document shows that, before it was reduced, 
the amount of the fine imposed on the applicant was made up of the sum of two 
figures, namely the figure obtained by applying a rate of 9% to the turnover of 
K N P Vouwkarton, multiplied by 42/60 — which corresponded to the duration of 
K N P Vouwkarton's participation in the infringement — and the figure obtained 
by applying a rate of 7.5% to the turnover of Badische, multiplied by 60/60 — 
corresponding to the duration of Badische's participation in the infringement. The 
total amount was then reduced by one-third. 
102 At the hearing the Commission stated that it had calculated the amount of the fine 
on the basis of the turnover figures achieved by K N P Vouwkarton and Badische 
on the Community cartonboard market in 1989. 
103 It explained that, as regards K N P Vouwkarton, it had not used 1990 as the refer­
ence year, so as to take account of the fact that it had been sold to Mayr-Melnhof 
during that year. It also stated that in order to calculate the amount of the fine it 
took into account Badische's 1989 turnover (ECU 19 000 000) and not that in 1990 
(ECU 15 000 000) because one of Badische's plants had been taken permanently 
out of production in Autumn 1989. 
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JUDGMENT OF 14. 5. 1998 — CASE T-309/94 
Findings of the Court 
104 As the Court has already found (paragraphs 45 to 50 above), the Commission 
rightly held the applicant to be responsible for the unlawful conduct of K N P 
Vouwkarton and Badische. The Commission also rightly took the view that the 
applicant had participated in the cartel from mid-1986 until April 1991 (paragraphs 
55 to 60 above). 
105 The applicant's arguments alleging that its participation in the cartel was incor­
rectly assessed must therefore be rejected. 
106 The Court must also reject the argument based on the fact that Article 1 of the 
Dutch-language version of the Decision erroneously states that the applicant par­
ticipated 'in an agreement and concerted practice originating in mid-1988'. The 
operative part of the Decision must be understood in the light of the statement of 
reasons for it (see, for example Joined Cases 40/73 to 48/73, 50/73, 54/73, 55/73, 
56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others ν Commission [1975] 
ECR 1663, paragraphs 122 to 124), and it is clear from that statement of reasons 
that the Commission's intention was to find that the applicant had participated in 
an agreement and concerted practice originating in mid-1986. Furthermore, it is 
clear from the applicant's application (point 8, in which reference is made to point 
162 of the Decision) that it also understood the Decision in that sense. 
107 As the Court has already noted, the fines were calculated on the basis of the turn­
over on the Community cartonboard market in 1990 achieved by each of the 
addressees of the Decision and basic rates of 9 and 7.5% of that turnover were 
then applied in order to determine the fine to be imposed on the 'ringleaders' of 
the cartel and on the other undertakings respectively. During the procedure before 
the Court and, in particular, in a reply to a written question put by the Court the 
Commission confirmed that those basic rates were in fact applied. 
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KNP BT ν COMMISSION 
108 The argument based on Badische's insignificant market share cannot be upheld in 
the applicant's case. As it did in the case of the other undertakings, the Commis­
sion took into account turnover on the Community cartonboard market. In so 
doing, it assessed Badische's true size and economic power on that market. How­
ever, since it took Badische's turnover in 1989 and not, as the principle of equal 
treatment required, its lower turnover in 1990 (paragraph 103 above), the appli­
cant's fine must be reduced. Moreover, the Commission cannot depart in a par­
ticular case from the criteria it has applied generally in calculating the amount of 
fines, unless its reasons for that departure are set out in the decision. It is settled 
law that the reasons for a decision must appear in the actual body of the decision. 
Save in exceptional circumstances the decision cannot be explained for the first 
time ex post facto before the Community judicature (see, inter alia, Dansk Pels-
dyravlerforening ν Commission, cited above, paragraph 131). There are no such 
circumstances here. 
109 The written explanations regarding the calculation of the amount of the fine 
imposed on the applicant, submitted in writing at the request of the Court, also 
show that a rate of 9% was applied to K N P Vouwkarton's 1989 turnover, in 
respect of the entire period during which it was owned by KNP, that is to say, 
until 1 January 1990, despite the fact that K N P was not represented in PWG meet­
ings after mid-1988. 
1 1 0 However, in its written reply to the Court's questions and at the hearing, the 
Commission proposed a different method of calculating the fine. Under that 
method, the fine would be calculated by applying a basic rate of 9% to the turn­
over of K N P Vouwkarton and Badische for the period during which the applicant 
had been one of the cartel ringleaders and a basic rate of 7.5% for the remainder of 
the period of its infringement. 
1 1 1 The Court finds that only that second method is in accordance with the second 
paragraph of point 170 of the Decision, in which it is stated that the applicant must 
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JUDGMENT OF 14. 5. 1998 — CASE T-309/94 
be considered 'as a ringleader of the cartel during the period of its membership of 
the PWG'. The Court will therefore take this finding into account when it fixes 
the amount of the fine. 
1 1 2 Lastly, as regards intra-group sales of cartonboard, the Court finds that the appli­
cant has not adduced any evidence to show that the Commission should not have 
taken them into account when it calculated the fine. 
1 1 3 It follows from all of the foregoing that the amount of the fine imposed on the 
applicant must be reduced. 
114 Since the only plea by the applicant which justifies a reduction in the fine is that 
alleging errors in its calculation, the Court, exercising its unlimited jurisdiction, 
sets the amount of that fine at ECU 2 700 000. 
Costs 
1 1 5 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, 
the Court considers it fair in the circumstances of the case to order the applicant to 
bear its own costs and to pay one-half of the Commission's costs and to order the 
Commission to bear the other half of its own costs. 
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KNP BT ν COMMISSION 
O n those grounds, 
T H E C O U R T O F FIRST INSTANCE 
(Third Chamber, Extended Composition) 
hereby: 
1. Sets the amount of the fine imposed on the applicant by Article 3 of Com­
mission Decision 94/601/EC of 13 July 1994 relating to a proceeding under 
Article 85 of the EC Treaty (IV/C/33.833 — Cartonboard) at ECU 2 700 000; 
2. Dismisses the application as regards the remaining claims; 
3. Orders the applicant to bear its costs and to pay one-half of the Commis­
sion's costs; 
4. Orders the Commission to bear one-half of its costs. 
Vesterdorf Briet Lindh 
Potocki Cooke 
Delivered in open court in Luxembourg on 14 May 1998. 
H. Jung 
Registrar 
B. Vesterdorf 
President 
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