Judgment — ECLI:EU:T:1999:80
Date: 1999-04-20
Language of the case: German;English;French;Italian;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;Appeals;General;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;Decision of the Commission;Definition of undertaking;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Effects of a declaration that a measure is void;Investigations;Hearing of persons concerned and of third parties / Access to the file;Measures in respect of which a plea of illegality may be raised;Termination of infringements: powers of the Commission;Ne bis in idem;Requests for information;Res judicata
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Belgium;Germany;France;United Kingdom;Italy;Netherlands

summary shows that the Court of Justice annulled the 1988 decision onaccount of a procedural defect affecting only the manner in which it was finally adopted by the Commission. Since the procedural defect occurred at the final stageof the adoption of the 1988 decision, the annulment did not affect the validity ofthe measures preparatory to that decision, before the stage at which the defect wasfound (see to that effect Fedesa, paragraph 34, and Spain v Commission, paragraph32). 190. That conclusion is not affected by the argument put forward by some of theapplicants to the effect that the annulment of the 1988 decision necessarily nullifiedthe procedural acts prior to that decision because they were inextricably linked tothe final decision. The fact that measures of a purely preparatory character maynot themselves be the subject of an action for annulment (IBM, paragraph 12) isexplained by the absence of a final position on the part of the Commission. It doesnot therefore entail the consequence that the validity of those measures is calledinto question where the final decision is annulled by reason of a procedural defectwhich occurred, as in this case, at a subsequent stage of those measures. 191. Nor is it affected by the argument based on the judgment in Cimenteries CBR. Inthe cases which gave rise to that judgment, the Court of First Instance ruledinadmissible the actions by the applicants against, inter alia, the Commission'sdecision refusing them access to all the documents on its file, for lack of a measureopen to challenge. In its findings, the Court indicated that if, for the sake ofargument, it 'were to recognise, in proceedings against a decision bringing theprocedure to a close, that a right of full access to the file existed and had beeninfringed, and were therefore to annul the Commission's final decision forinfringement of the rights of the defence, the entire procedure would be vitiatedby illegality (paragraph 47). 192. That reference to 'the entire procedure cannot be interpreted separately from thefollowing sentence in the grounds of the judgment, according to which theCommission might resume the procedure, 'giving the undertakings and associationsof undertakings concerned a further opportunity to give their views on theobjections made against them in the light of all the new information to which theyshould have been granted access (paragraph 47). It follows from the very wordingof that assessment that the Court of First Instance did not consider that the validityof the statement of objections could be called into question. 193. In the light of the foregoing, it is clear that the validity of the preparatory measurestaken prior to the adoption of the 1988 decision has not been called into questionby the annulment of that decision by the Court of Justice. Therefore, the claimsbased on the invalidity of those measures must be dismissed as unfounded. 3. The detailed procedure for adopting the Decision, after the annulment ofthe 1988 decision Summary of the applicants' arguments 194. The applicants argue essentially that even if the defect occurred at the final stageof the adoption of the decision of 1988, the Commission could only remedy thedefect if it complied with certain procedural guarantees before adopting theDecision. 195. The applicants argue that the Decision is new in relation to the 1988 decision sincethe latter was annulled. That was sufficient to require the opening of a newadministrative procedure before adopting the Decision. Some applicants argue thatsuch an administrative procedure should have been resumed in its entirety, whilstothers consider that certain steps in that procedure should have been completed.More generally, they argue that the Commission infringed the applicants' right tobe heard.  The procedural stages provided for by secondary legislation 196. LVM, Elf Atochem, BASF, Shell, DSM, SAV, Montedison, ICI and Hüls argue thatthey have been unable to present their point of view in accordance with theprovisions of Regulation No 17 and Regulation No 99/63, which express thefundamental Community law principle of the rights of the defence, applicable evenin the absence of specific legislation (Transocean Marine Paint; British Aerospaceand Rover; Hoffmann-La Roche, paragraph 9; Joined Cases 209/78 to 215/78 and218/78 Van Landewyck v Commission [1980] ECR 3125, paragraph 81; MusiqueDiffusion Française, paragraphs 9 and 10; Case 322/81 Michelin v Commission[1983] ECR 3461, paragraph 7; Case T-64/89 Automec v Commission [1990] ECRII-367, paragraph 46; Case T-36/91 ICI v Commission [1995] ECR II-1847,paragraph 69). SAV argues that the 1988 decision is deemed never to have existed,so that the Commission should have resumed the whole administrative procedure,as moreover it had committed itself to doing in the Fourth Report on CompetitionPolicy (paragraph 49). SAV and ICI also argue that the Commission's contentionthat only material alterations in the content of the annulled decision at the time ofits rectification might justify a new procedure is based exclusively on the case-lawof the Court of Justice concerning the balance between the institutions, which is notat issue in this case (Fedesa, cited above). 197. ICI rejects the Commission's argument that it was entitled merely to remedy thedefect found by the Court without hearing the parties, since the 1988 decision andthe Decision itself were taken in factual and legal circumstances which differed inseveral respects as regards the participants, the economic situation of the industryand changes in the case-law that had occurred in the years preceding the Decision. 198. SAV and Montedison argue in this context that, since the annulled measure wasadopted in the exercise of a discretionary power and annulled on account of a formal defect, the institution may not re-adopt it without complying with the formalrequirements and the rights of the defence, even in the absence of a specificprovision (Transocean Marine Paint, paragraph 16). 199. LVM, Elf Atochem, BASF, Shell, DSM, Wacker, Hoechst, SAV, ICI, Hüls andEnichem argue, more specifically, that by failing to conduct a prior administrativeprocedure the Commission infringed the obligations which it had assumed inrelation to the role of the hearing officer. Elf Atochem, Shell, SAV, ICI andEnichem rely on the Commission decision of 23 November 1990 on the hearingsin proceedings relating to Articles 85 and 86 of the EEC Treaty and Articles 65 and66 of the ECSC Treaty (Twentieth Report on Competition Policy, p. 350). BASF andHüls argue that the Commission infringed Articles 5, 6 and 7 of the Commissiondecision of 8 September 1982 on the mandate of the hearing officer (ThirteenthReport on Competition Policy, p. 291). 200. ICI claims that the Decision would have been substantially different if the hearingofficer had been able to intervene, since ICI could then have pleaded, inter alia,limitation, delay in adopting of the Decision, the refusal of its request for access tothe Commission's file, the issue of self-incrimination, the scope of Article 20 ofRegulation No 17 and the concept of concerted practice. 201. In Hüls's submission, the intervention of the hearing officer in 1988 cannot beregarded as having permitted the latter to exercise his functions in 1994; there mustbe proximity in time between the intervention of the hearing officer and theadoption of the corresponding decision. The company finds the Commission'sattitude in this case all the more surprising in that the role of the hearing officerhas been extended (Twenty-third Report on Competition Policy, paragraph 203 etseq.; Commission Decision 94/810/ECSC, EC of 12 December 1994 on the termsof reference of hearing officers in competition procedures before the Commission(OJ 1994 L 330, p. 67). 202. Enichem adds that the judgment of the Court of First Instance in Case T-9/89 Hülsv Commission [1992] ECR II-499, on which the Commission relies, does notsupport the conclusion that hearing by the hearing officer is not an obligatory stagein any proceeding. In this case, had he been heard, the hearing officer would havebeen able to submit observations on the appropriateness of readopting a decision,on paragraphs 55 to 59 of the grounds for the Decision, which were new in relationto the grounds of the initial decision (Case C-135/92 Fiskano v Commission [1994]ECR I-2885, paragraph 40) and which fall within the exclusive competence of thecollege of Commissioners, on the amount of the fine, which Enichem submits isdiscriminatory and erroneously fixed by reference to the 1987 rather than the 1993turnover figures, on the assessment of limitation, which, contrary to what theCommission maintains, is a plea going to the substance of the case, on the rulesconcerning access to the file, on the effect erga omnes of the judgment of the Courtof Justice, on the application of the principle of res judicata, according to which the Commission did not have the power to adopt the Decision, concerning the samefacts, in breach of the non bis in idem principle, and on changes in the PVCmarket, from which Enichem withdrew in 1986, transferring its activities to a jointundertaking constituted as to 50% with ICI, in which Enichem now holds only aminority share. The Decision could thus have been substantially affected by thefailure to involve the hearing officer. Because of the choice made by theCommission, Enichem found itself obliged to bring an action in order to submitsuch observations. 203. LVM, Elf Atochem, BASF, DSM, Wacker, Hoechst, SAV, ICI, Hüls and Enichemconsider that the Commission infringed the obligation to consult the AdvisoryCommittee on Restrictive Practices and Dominant Positions (the 'AdvisoryCommittee) before adopting the Decision, such consultation being required byArticle 10(3) of Regulation No 17. They maintain that the Advisory Committeemust be consulted before the adoption of any decision finding a breach of thecompetition rules referred to in Article 10(1) of Regulation No 17 and any decisionimposing a fine, in accordance with Article 15(3) of the same regulation. Since theDecision was new in relation to the initial decision, the consultation of the AdvisoryCommittee which took place in 1988 was either inoperative or insufficient. TheDecision should therefore be annulled for infringement of essential proceduralrequirements (Opinion of Advocate General Gand in ACF Chemiefarma, p. 707,at pp. 709 to 711; Opinion of Advocate General Warner in Distillers Company, p.2267, at p. 2293; Opinion of Advocate General Slynn in Joined Cases 228/82 and229/82 Ford v Commission [1984] ECR 1129, at pp. 1147 and 1173. Some applicantsalso cite the case-law on the infringement of an obligation to consult: Case 2/54Italy v High Authority [1954-1956] ECR 37; Roquette Frères; Case C-65/90Parliament v Council [1992] ECR I-4593; Joined Cases C-13/92, C-14/92, C-15/92and C-16/92 Driessen v Minister van Verkeer en Waterstaat [1993] ECR I-4751; CaseC-388/92 Parliament v Council [1994] ECR I-2067). The applicants maintain, bycontrast, that Case 71/74 Frubo v Commission [1975] ECR 563, relied upon by theCommission, is irrelevant, since the general consultation of the Member States inthe context of Regulation No 26/62 of 4 April 1962 applying certain rules ofcompetition to production of and trade in agricultural products (OJ, English SpecialEdition 1959-1962, p. 129) where the Commission is in no doubt cannot becompared to the consultation of the Advisory Committee laid down in detail inRegulation No 17. 204. Consultation of the Advisory Committee was particularly necessary in this case fortwo reasons. First, BASF, Wacker, Hoechst, SAV, Hüls and Enichem argue thatthe Decision is the first to have been adopted following the annulment by theCommunity judicature of a previous decision concerning the same undertakings. Inthat case, SAV and ICI argue, by reason of the role conferred upon it, the AdvisoryCommittee, which must be closely associated with the concerted development ofcompetition policy (Thirteenth Report on Competition Policy, paragraph 79), shouldhave been consulted as to the appropriateness of taking a new decision where the previous one had been annulled, that being obvious from the point of view ofcompetition policy, there being no precedent in the case-law. The fact that theadoption of a new decision after the annulment of a previous one falls within theCommission's discretion made it all the more necessary for the Advisory Committeeto be consulted as to the appropriateness of such action. It was, moreover, alongthose lines that the Commission has acted in the past (Commission Decision75/649/EEC of 23 October 1975 relating to a proceeding under Article 85 of theEEC Treaty, IV/223  Transocean Marine Paint Association, OJ 1975 L 286, p. 24). 205. Secondly, BASF, Wacker, Hoechst, ICI, Hüls and Enichem argue that the AdvisoryCommittee should also have been consulted by reason of the amendments to thetext of the Decision compared with that of the original decision and, some of theapplicants argue, by reason of the length of the procedure, the particularcircumstances which led to the annulment of the initial decision, the errors of theCommission revealed at the preliminary inquiry stage before the Court of FirstInstance, the actions brought against that decision and changes in the market forthe product in question since 1988. ICI argues in this context that the change in thecomposition of the Advisory Committee also justified fresh consultation of thatbody. In the same context, BASF argues that the purpose of consulting theAdvisory Committee is also to ensure that the impugned undertakings have theright to a fair procedure and the right to be heard, as demonstrated by Articles 1,7(1) and 8(2) of Regulation No 99/63. 206. BASF, Wacker, Hoechst and ICI consider that such consultation might have led theCommission to adopt a different decision, especially as regards the amount of thefines, or to decide not to adopt the Decision. BASF argues that by removing twosentences from paragraph 37 of the recitals in the preamble to the initial decision,concerning the harmful effects of the agreement, the Commission removed anaspect from consideration which must necessarily have had an impact on thedecision to impose a fine and its amount. 207. BASF and ICI further consider that if the Advisory Committee has to be consultedbefore the renewal of an exemption the same should apply where the Commissionadopts a decision replacing an annulled decision. 208. More specifically, LVM and DSM argue that by not consulting the AdvisoryCommittee before adopting the Decision the Commission prevented MemberStates from participating in the definition of Community competition policy, andthat compulsory consultation of the Advisory Committee served to support effortsto achieve institutional equilibrium in that area. The infringement of such anobligation should therefore entail the annulment of the Decision for infringementof essential procedural requirements, or even for lack of powers, if that obligationis to be understood as requiring the agreement of the competent authorities of theMember States. 209. SAV argues that the case-law on the balance between the institutions, which refersto the obligation to consult the Parliament on a proposal for a directive that hasundergone successive amendments (particularly Parliament v Council, cited above),cannot be transposed by analogy to the case of failure to consult the AdvisoryCommittee on a new decision adversely affecting its addressee. 210. Finally, SAV and ICI consider that the Commission infringed Article 190 of theTreaty inasmuch as the citations in the preamble to the Decision refer only to theconsultation of the Advisory Committee which took place before the adoption ofthe 1988 decision. 211. Also more specifically, SAV argues that the Commission disregarded its obligationto cooperate with the EFTA Surveillance Authority. In particular, Articles 53, 56and 58 of the European Economic Area Agreement, which was signed at Oportoon 2 May 1992 and entered into force on 1 January 1994, and Protocols 21 and 23thereto, obliged the Commission to cooperate with the EFTA SurveillanceAuthority in relation to the determination of competition policy and the adoptionof individual decisions in that area. By failing to consult the Advisory Committee,the Commission deprived the EFTA Surveillance Authority of the possibility ofexpressing its point of view. The obligation to cooperate with that Authority arosefrom the very fact of adopting a decision, irrespective of the question whether thatdecision was identical with a previous annulled decision. Moreover, since this wasa case concerning competition policy, the Surveillance Authority should have beencalled upon to cooperate with the Commission.  The applicants' alleged right to be heard 212. The applicants claim that the Commission infringed in a number of respects theright of undertakings to make their views known. 213. First, LVM and DSM maintain that the mere intention to adopt a new measureadversely affecting its addressees was sufficient to entail an obligation to hear theparties on the subject of that intention (Joined Cases C-48/90 and C-66/90Netherlands v Commission [1992] ECR I-565, paragraph 44). ICI maintains that itshould in any event have been heard as to whether it was desirable or judicious toadopt a new decision in the particular circumstances. 214. Secondly, SAV, Hüls and Enichem argue that the prior decision to depart from thenormal procedure for adopting a decision justified a hearing of the parties on thatprior decision. 215. SAV considers that, in not resuming the whole of the administrative procedure inorder to adopt the Decision, the Commission made a choice. In its submission, thepublic authorities are obliged to respect the right of the addressee of a measure to be informed of the conditions in which the Commission intends to adopt a decision,even in the absence of a specific legislative provision (Case C-49/88 Al-JubailFertiliser and Saudi Arabian Fertiliser v Council [1991] ECR I-3187, paragraph 16;Netherlands v Commission, cited above). The Commission should therefore haveheard the undertakings on the subject of the procedural choice envisaged. 216. Hüls considers that it should have been placed in a position to submit itsobservations as to the legality of the procedure which the Commission intended tofollow after the judgment of 15 June 1994, especially on the question whether anew decision could be adopted without a new hearing. 217. BASF, Wacker, Hoechst and Hüls maintain that the Commission was in doubt asto the steps to be taken in adopting the Decision and therefore asked the LegalService for a note on the point. BASF, Hüls and Wacker request the Court toorder the Commission to produce that note for the Court's file, the former alsorequesting that, if only an oral opinion was given, the staff member who gave itshould be heard. 218. Thirdly, LVM, BASF, Shell, DSM, SAV, ICI and Enichem maintain that theadoption of a new decision entailed an obligation on the Commission to hear theundertakings concerned before a measure adversely affecting them was adopted(Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 27; Case 40/85Belgium v Commission [1986] ECR 2321, paragraph 28; Case 259/85 France vCommission [1987] ECR 4393, paragraph 12; Case C-301/87 France v Commission[1990] ECR I-307, paragraph 29; Netherlands v Commission, cited above, paragraph44). The undertakings would thus have been able to submit their observations,especially concerning changes in the case-law on the concept of concerted practicesand the detailed rules for proving their existence. They would also have been ableto make submissions on changes in the case-law concerning conditions for accessto the Commission's file, on the interpretation of the limitation rules, on theCommission's delay in announcing its decision, on the discrimination in relation toNorsk Hydro and Solvay and on the principle of non bis in idem. 219. Wacker, Hoechst and ICI argue in that regard that the Commission cannot seekto limit the right to be heard to the accusations made against an undertaking. Anundertaking must be able to make its observations known each time theCommission puts forward fresh points of view not hitherto notified, whetherrelating to fact or law. 220. LVM and DSM also consider that the right which undertakings have to bring thedispute before the Court of First Instance does not absolve the Commission fromhearing them before adopting a decision (Case T-36/91 ICI v Commission, citedabove, paragraph 108), and that the infringement of the fundamental right cannotbe remedied in that way without undermining the balance between the institutions. 221. In SAV's submission, the former procedure could be resumed at the stage at whichit was vitiated only to the extent that it had been brought up to date, therebyobliging the Commission to take account at the stage at which the measure was re-established of factual and legal changes in the meantime (Case C-261/89 Italy vCommission [1991] ECR I-4437; British Aerospace and Rover, cited above, and theOpinion of Advocate General Van Gerven in that case, paragraphs 10 and 12).SAV emphasises that it should have been heard so that it could plead changes inthe case-law (paragraph 218 above), which formed part of the specific purpose ofthe administrative procedure. Moreover, the mere fact that SAV might rely on thatcase-law in the present action does not, it submits, affect the Commission'sobligation to hear it on that subject previously, which might have led to a differentdecision. 222. Fourthly, LVM, Elf Atochem, BASF, Shell, DSM, Wacker, Hoechst, SAV, ICI,Hüls and Enichem argue that the undertakings should have been heard on theground that, compared with the original decision, the wording of the Decisiondiffers on essential points (Case 51/69 Bayer v Commission [1972] ECR 745,paragraph 11; Case 55/69 Cassella v Commission [1972] ECR 887, paragraph 11)such as the assessment of the rules on limitation, the removal of two sentencesconcerning the effects of the agreement (paragraph 37 of the recitals in thepreamble to the Decision), the addition of a section relating to the procedure since1988, and the omission of Solvay and Norsk Hydro. Shell considers, moreover, thatfor the Commission to maintain the 'cease and desist order (Article 2 of theDecision) must mean that it had in its possession information in respect of theperiod 1988 to 1994 in regard to which Shell was not heard. 223. Fifthly, BASF maintains that, as the previous administrative procedure had beenclosed by the 1988 decision, a fresh hearing of the undertakings was necessary. 224. Sixthly, BASF, Wacker, Hoechst, ICI and Hüls claim that they should have beenheard because six years had elapsed between the hearing and the adoption of theDecision. Along the same lines, Shell argues that too much time elapsed betweenthe alleged infringement and the adoption of the Decision; the question thereforearose whether the proceedings had now become oppressive and unfairly prejudicialto the applicant. BASF, Wacker, Hoechst and Hüls argue that the procedure forfinding an infringement leading to the imposition of fines has a dissuasive purpose(Musique Diffusion Française, paragraph 106) and is quasi-criminal in character.Guarantees identical to those provided for in criminal procedure should thereforebe given. Amongst those guarantees, in their submission, is the obligation to ensurereasonable proximity in time between the date of the hearing and the date of thedecision (Case T-43/92 Dunlop Slazenger v Commission [1994] ECR II-441,paragraph 167). In this case, the interval of six years between those two dates,which was not imputable to the undertakings since the 1988 decision was vitiatedby serious defects, could not be described as reasonable. BASF adds that, bearingin mind the changes in the PVC market, the change in its own position and the substantive changes made to the text of the Decision, a fresh hearing of theundertakings was necessary before the Decision could be adopted, having regardto all the legal and factual circumstances at the date of adoption. 225. Finally, ICI maintains that it cannot be regarded as having been able to defend itsinterests in an effective manner as six years had elapsed between the presentationof its written and oral observations and the adoption of the Decision; the right tomake an effective presentation of observations presupposes that an undertaking beheard in the legal and factual context existing immediately prior to the adoption ofa decision. Arguments of the Commission 226. In reply to the pleas and arguments of the applicants, the Commission states thatas far as the applicants are concerned the 1988 decision was annulled by thejudgment of the Court of Justice of 15 June 1994 for lack of authentication of the1988 decision, in breach of the first paragraph of Article 12 of the Rules ofProcedure of the Commission in force at the time (judgment of 15 June 1994,paragraphs 76 to 78). 227. The validity of the procedure carried out until the stage at which the defectoccurred was thus not affected. The Commission was therefore entitled, in orderto comply with the judgment of the Court of Justice, simply to adopt a dulyauthenticated decision, in the absence of any new procedural rule for applyingArticle 85 of the Treaty issued after the date of the annulled decision or of any newfactual circumstances, since the facts complained of were long since past. That was,moreover, in accordance with the specific purpose of the prior administrativeprocedure (Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984]ECR 19, paragraph 52). To require otherwise would be unduly formalistic (Frubo,paragraph 11). 228. The Commission adds that the differences in wording between the 1988 decisionand the Decision are not substantive (ACF Chemiepharma, paragraph 178; Case817/79 Buyl v Commission [1982] ECR 245, paragraph 23; Fedesa, cited above;Case C-65/90 Parliament v Council, cited above; Case C-388/92 Parliament vCouncil, cited above), so that the case-law relied on by some of the applicants(especially Transocean Marine Paint and British Aerospace and Rovery) is irrelevant. 229. In reality, the purely editorial changes to the text did not justify the opening of ahearing since those additions did not constitute measures adversely affecting theapplicants. Although two sentences in paragraph 37 of the recitals in the Germanversion of the 1988 decision no longer appeared at the same place in the Decision,that was due simply to reasons of harmonisation with other language versions whichwere equally authentic. In any event, since the adjustments to the text did not constitute a measure adversely affecting the applicants, there was no need to hearthem on the subject. 230. Since the defect which led to the annulment of the 1988 decision was clearly limitedto the final stage of its adoption, and the Decision was not materially different inany way from its predecessor, all the stages preceding the adoption of the 1988decision remained valid. 231. In those circumstances, and in the absence of any new measure adversely affectingthe applicants, the Commission considers that it was not required to send a newstatement of objections, or give the undertakings the opportunity to submit theiroral or written observations, or to refer the matter to the hearing officer, that beingindissociable from the two previous procedural steps. 232. Nor, the Commission submits, was it required to consult the Advisory Committee.Given the annulment of the 1988 decision, the consultation of the AdvisoryCommittee which took place on 30 November 1988 should be regarded, in theabsence of any new measures adversely affecting the applicants, as the consultationprior to the adoption of the Decision. The spirit and purpose of Article 10(3) ofRegulation No 17 were therefore complied with. The Commission also argues thatreference to the right to involve the Advisory Committee in the context of therenewal of an exemption decision is not relevant in this case. It submits that suchrenewal concerns another temporal frame of reference, so that the assessments arebased on different parameters. 233. In the BASF and ICI cases, the Commission states that its position concerning theAdvisory Committee does not exclude minor adjustments of the text, such as thoseconcerning limitation and the removal of two sentences in the German-languageversion of the Decision. As regards the case of Transocean Marine Paint, to whichSAV refers, the Commission submits that that case shows that a fresh opinion isnecessary only where a substantive matter was not originally referred to theAdvisory Committee. That was, however, not the case here. 234. The Commission further maintains that it is not bound by the opinion of theAdvisory Committee, as is shown by the second sentence of Article 10(6) ofRegulation No 17. 235. In the case concerning SAV, the Commission argues that, in any event, theAdvisory Committee was informed of SAV's arguments in response to theobjections (Michelin, paragraph 7; Hüls, paragraph 86) and that the latter did notchange since 1988. It adds that no consultation of the Advisory Committee wasrequired as to the appropriateness of adopting a new decision. 236. Lastly, the Commission observes that Article 1 of Regulation No 99/63 does notrequire consultation of the Advisory Committee until after the parties have been heard. No fresh hearing of the parties having been necessary, there was by thesame token no need to hold a fresh consultation of the Advisory Committee either(Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph54). 237. The Commission adds that it is the sole judge as to the appropriateness ofadopting, or re-adopting, a decision (Parker Pen, paragraph 65), so that it did nothave to hear the parties on any alleged procedural choice. Nor was there anydecision of its own in which the Commission had decided to use a procedure otherthan that prescribed. 238. Finally, the Commission observes that the alleged changes in the case-law, asregards both the concept of a concerted practice and the question of access to thefile, are irrelevant since there is no relation to the substance of the objectionsrelating to the reference period. Those alleged changes did not therefore lead toany alteration in the objections maintained against the applicants. Even if theymight be relied upon by applicants in order to obtain the annulment of the prioradministrative procedure, they could not lead to the annulment of the Decision forfailure to reopen the procedure. 239. In any event, procedural questions, on which the case-law is claimed to havechanged, do not normally form part of the statement of objections and were notexamined by the Commission in its decision (Case 48/69 ICI and Michelin, bothcited above). In that regard, the matters relating to access to the file appearing inthe Decision did not constitute part of the essential reasoning supporting theoperative part. 240. In the case of Elf Atochem, the Commission maintains that the applicant'sargument that it should have been heard as to the application of the principles ofnon bis in idem and proportionality is meaningless, since neither of those principlesis in issue in the present case. It also maintains that the applicant's argument basedon changes in the PVC market between 1988 and 1994 is irrelevant because thosechanges, if proven to have occurred, have no bearing on the assessment of thefacts, which took place between 1980 and 1984. Similarly, in Case T-313/94, theCommission states that there is nothing in the Decision to indicate that mattersrelating to the period between 1988 and 1994 were used in support of Article 2 ofthe operative part. 241. In the BASF, Wacker and Hoechst cases, the Commission argues in reply to theplea concerning the length of the interval between the hearing and the Decisionthat the administrative procedure in competition matters is not of a criminal lawnature and contains no principle that only those matters dealt with in oralproceedings may be used as a basis for the final decision (Mündlichkeitsgrundsatz).There was therefore nothing to prevent Members of the Commission from beinginformed of the outcome of the hearing by such persons as the Commission had appointed to conduct it, in accordance with Article 9(1) of Regulation No 99/63,without needing to attend that hearing personally (Boehringer I, paragraph 23). TheCommission also points out that the hearing officer is under a duty to draw upminutes of the hearing, to be read and approved by the undertaking in question. 242. The mere passage of time between the infringement and the Decision, between the1988 decision and the Decision, and between the hearing and the Decision did notconfer a right to a hearing, the Community legislature having intended that thelimitation period should be suspended for the duration of the proceedings beforethe Community judicature (Article 3 of Regulation No 2988/74). Shell, which alsopleads the passage of time between the infringement and the Decision, did notsuffer any damage in that respect. 243. Moreover, the Decision was not taken as a surprise. On the contrary, theCommission made its intentions known by a press release published on the sameday as the judgment of the Court of Justice. 244. Finally, the Commission denies having infringed the provisions of the EEAAgreement, which is inapplicable ratione temporis because the facts leading to theDecision occurred before the entry of that Agreement into force on 1 January 1994. 245. In the BASF, Wacker and Hüls cases, the Commission states that there is nowritten opinion of the Legal Service on the question whether a new decision mightbe adopted in respect of PVC producers on the basis of the administrativeprocedure prior to the adoption of the 1988 decision. In any event, any suchopinion would be purely internal in character and not accessible to third parties(Hüls, paragraph 86). Findings of the Court 246. In all proceedings in which sanctions, especially fines or penalty payments, may beimposed, observance of the rights of the defence is a fundamental principle ofCommunity law which must be complied with, even if the proceedings in questionare administrative proceedings (Hoffman-La Roche, paragraph 9). 247. Applying that principle, Article 19(1) of Regulation No 17 and Article 4 ofRegulation No 99/63 require the Commission to adopt in its final decision onlythose objections on which the undertakings and associations of undertakingsconcerned have had the opportunity to put their case. 248. The right of the undertakings and associations of undertakings concerned to puttheir case on the matters to which the Commission has taken objection, at both thewritten and oral stages of the administrative procedure, is an essential part of therights of the defence (Hoechst, paragraph 52). Such a hearing is necessary in order to enable those parties 'to submit their comments on the whole of the objectionsraised against them which the Commission proposes to deal with in its decisions(third recital in the preamble to Regulation No 99/63). 249. Observance of the rights of the defence thus requires that each undertaking orassociation of undertakings concerned be given the opportunity to be heard as tothe objections raised against each of them which the Commission proposes to dealwith in the final decision finding infringement of the competition rules. 250. In this case, it has already been held that the annulment of the 1988 decision didnot affect the validity of the measures preparatory to that decision, taken prior tothe stage at which the defect occurred (paragraph 189 above). The validity of thestatement of objections sent to each of the applicants at the beginning of April1988 was thus unaffected by the judgment of 15 June 1994. Similarly, and for thesame reasons, the validity of the oral stage of the administrative procedure, whichtook place before the Commission in September 1988, was not affected. 251. Consequently, a new hearing of the undertakings concerned was required beforethe Decision only to the extent that the latter contained objections which were newin relation to those set out in the original decision annulled by the Court of Justice. 252. Since the applicants do not deny that the text of the Decision does not contain anynew objection compared with the text of the 1988 decision, the Commission wasright to adopt the Decision without holding a new hearing of the undertakingsconcerned. In that regard, the fact that the Decision was adopted in factual andlegal circumstances different from those which existed at the time the originaldecision was adopted does not in any sense mean that the Decision contains newobjections. 253. Since the Commission was not required to hold a new hearing of the undertakingsconcerned, it could not be in breach of its decision of 23 November 1990 on thehearings in proceedings relating to Articles 85 and 86 of the EEC Treaty andArticles 65 and 66 of the ECSC Treaty. That decision was not applicable at thetime to the oral stage of the administrative procedure which preceded the adoptionof the Decision. 254. As regards the Advisory Committee, the powers, composition and consultationprocedure of which are governed by Article 10(3) to (6) of Regulation No 17, theCourt notes that it delivered its opinion on the Commission's draft decision on 1December 1988. 255. The applicants' claim that, in the circumstances of this case, the Commission shouldhave carried out a fresh consultation of the Advisory Committee before adoptingthe Decision cannot be accepted. 256. According to Article 1 of Regulation No 99/63, 'before consulting the AdvisoryCommittee on Restrictive Practices and Dominant Positions, the Commission shallhold a hearing pursuant to Article 19(1) of Regulation No 17. That provisionconfirms that the hearing of the undertakings concerned and the consultation of theAdvisory Committee are necessary in the same situations (Hoechst, paragraph 54). 257. As the Court has already held (paragraph 252 above), a fresh hearing of theundertakings concerned was not necessary, in the circumstances of the case, beforethe adoption of the Decision. In view of the fact that, compared with the 1988decision, on a draft of which the Advisory Committee had been consulted inaccordance with Article 10(5) of Regulation No 17, the Decision contains onlyeditorial amendments not affecting the objections, fresh consultation of theAdvisory Committee was not required. 258. Finally, it should be observed in this context that the Decision expressly refers inthe introductory part to consultation of the Advisory Committee. The complaint ofSAV and ICI alleging insufficient reasoning of the Decision in that respect musttherefore be rejected. 259. As regards the complaint alleging failure to comply with the duty to cooperate withthe EFTA Surveillance Authority, suffice it to say that as no fresh hearing of theundertakings concerned and no fresh consultation of the Advisory Committee wererequired prior to the adoption of the Decision, the relevant provisions of the EEAAgreement and Protocols 21 and 23 were not applicable to the administrativeprocedure in progress. Those provisions entered into force on 1 January 1994, atwhich date the procedural stages requiring cooperation between the Commissionand the EFTA Surveillance Authority, namely the hearing of the undertakings andthe consultation of the Advisory Committee, had already taken place. 260. The applicants also rely on the case-law to the effect that respect for the rights ofthe defence, in all proceedings which are initiated against a person and which areliable to culminate in a measure adversely affecting that person, is a fundamentalprinciple of Community law which must be guaranteed even in the absence ofspecific rules (see, for example, Netherlands v Commission, cited above, paragraph44). 261. However, it does not follow from that case-law that the Commission was obligedto hear the applicants again before adopting the measure adversely affecting them. 262. It should not be forgotten that the administrative procedure for findinginfringement of Article 85 of the Treaty is governed by Regulations Nos 17 and99/63. That specific legislation contains provisions (paragraph 247 above) whichexpressly and effectively guarantee respect for the rights of the defence. 263. In any event, according to that case-law, the principle of respect for the rights ofthe defence requires that an exact and complete statement of the objections whichthe Commission intends to raise against the addressee of the decision should besent to that person before the decision is finally adopted. 264. Therefore, contrary to what the applicants maintain, it does not follow from thatcase-law that respect for the rights of the defence imposes upon the Commission,when initiating a procedure for infringement of Community competition rulesagainst several undertakings, any obligation other than to ensure that eachundertaking may, during that proceeding, effectively put its case as to the accuracyand relevance of the facts and circumstances alleged, and on the documents reliedon by the Commission in support of its allegation that there has been a breach ofCommunity law. 265. Similarly, the judgment in Transocean Marine Paint relied on by the applicants insupport of their argument that a fresh hearing is necessary is irrelevant here, sinceit concerns a special case, namely the need to respect an undertaking's rights ofdefence where the Commission intends to grant an exemption under Article 85(3)of the Treaty subject to certain conditions. 266. The Commission was not therefore bound, before adopting the Decision, to allowthe undertakings in question a hearing concerning its intention to adopt a newmeasure adversely affecting them, the procedural choice made, their variousobservations on certain factual and legal matters and the differences between thetext of the Decision and that of the original decision which was annulled. It mustbe emphasised that it is not alleged that those circumstances constitute freshcomplaints. 267. Nor is the absence of any obligation on the Commission to undertake a freshhearing of the undertakings concerned affected by the fact that six years elapsedbetween the oral stage of the administrative procedure and the adoption of theDecision. The undertakings had the opportunity in September 1988 to state orallytheir views on the objections, which remained unchanged from that date and in theDecision. 268. Finally, even if the Commission's Legal Service did issue an opinion as to whethera new decision could be adopted in relation to PVC producers on the basis of theadministrative procedure prior to the adoption of the 1988 decision, respect for therights of the defence does not require that the undertakings involved in aproceeding under Article 85(1) of the Treaty be given the opportunity to commenton such an opinion, which is a purely internal Commission document. It should benoted that the Commission is not obliged to follow the opinion given by the LegalService, so that the latter does not constitute a decisive factor which theCommunity judicature must take into account in its review (see to that effect Hüls,paragraph 86). 269. Similarly the Court must reject the argument by LVM and DSM (paragraph 140above), that the Decision is unlawful because, in the absence of a preliminaryinquiry, it constitutes a disproportionate means of attaining the aim of protectingcompetition. It is sufficient to note in that respect that the Commission was notobliged to hear the undertakings again before adopting the Decision. Thedisproportionality alleged by the applicants thus rests on a false premise. 270. In view of all of the foregoing, the applicants' complaints must be dismissed in theirentirety. B  The irregularities in the adoption and authentication of the Decision 271. Some of the applicants maintain that there were irregularities in the Commission'sadoption and authentication of the Decision. 272. At the hearing, Wacker and Hoechst withdrew a plea alleging lack ofauthentication of the Decision, and the Registrar took official note of thatwithdrawal. The Court considers that that withdrawal also entails withdrawal of theplea alleging lack of conformity between the copies of the Decision notified toWacker and Hoechst and the original, the latter plea being closely linked to theformer. 273. The applicants' claims consist of several pleas in law. 1. Illegality of the Commission's Rules of Procedure of 17 February 1993 Arguments of the parties 274. LVM and DSM refer to the fact that the Decision was adopted under theCommission's Rules of Procedure of 17 February 1993 (OJ 1993 L 230, p. 16; 'theRules of Procedure). Article 16 of those rules provides that instruments adoptedby the Commission, annexed to the minutes of the meeting at which they wereadopted, are to be authenticated by the signatures of the President and theSecretary-General on the first page of the minutes. 275. LVM and DSM submit that a party may rely on the infringement of such internalrules as an essential procedural requirement (BASF, paragraph 75). The provisionson authentication do not, in fact, comply with the principles set out in the latterjudgment (paragraphs 75 and 78) and in the judgment of 15 June 1994 (paragraphs75, 76 and 78), whereby the requirement of authentication by the signatures, on theinstrument itself, of the President and the Secretary-General of the Commissionexpresses a fundamental requirement of Community law, inspired by considerations of legal certainty. Therefore, there was no authentic instrument in the Dutchlanguage which was duly authenticated. 276. Enichem argues that the Commission infringed both the principles set out in thejudgment of 15 June 1994 and its Rules of Procedure when it adopted the Decision.It submits that Articles 2 and 16 of those rules, concerning the authorisation toadopt measures and the authentication of measures adopted under that procedure,are incompatible with the principle of collective responsibility. 277. Moreover, the rules for authenticating instruments laid down by Article 16 of theRules of Procedure do not guarantee the legal certainty required by the Court,since they provide for the authentication of the minutes rather than the adoptedmeasure. 278. The Commission replies to the pleas of LVM and DSM that the plea of illegalityraised against the Rules of Procedure is inadmissible. The Rules of Procedure ofan institution do not constitute a measure of general application, binding in itsentirety and directly applicable in all Member States for the purposes of applyingArticle 184 of the Treaty. In any event, LVM and DSM are confusing the principleof collective responsibility referred to in Article 163 of the Treaty and theauthentication of decisions. It is thus wrong to claim that Article 12 of the Rulesof Procedure, in the version in force when the 1988 decision was adopted, was theonly means of complying with the principle of collective responsibility (judgmentof 15 June 1994, paragraphs 72 to 77). 279. The Commission considers that Enichem has failed to establish either in what waythe Rules of Procedure do not comply with the judgment of the Court or in whatway that alleged non-compliance concerns matters relating to the adoption of theDecision (Case T-35/92 Deere v Commission [1994] ECR II-957). Findings of the Court 280. As a preliminary observation, the Court considers that the applicants' argumentsshould be understood as pleading that a number of provisions of the Commission'sRules of Procedure in force at the time the Decision was adopted were unlawful.In accordance with Article 184 of the Treaty, the applicants are indirectlychallenging the validity of certain provisions of the Rules of Procedure by invokingone of the grounds for review mentioned in Article 173 of the Treaty, namelyinfringement of the Treaty or of any rule of law relating to its application. 281. The plea that provisions in the Rules of Procedure were unlawful falls into twoparts. In the first part, LVM, DSM and Enichem argue that the first paragraph ofArticle 16 of the Rules of Procedure, concerning the detailed rules forauthenticating measures, infringes the principle of legal certainty referred to by the Court of Justice in the judgment of 15 June 1994. In the second part, Enichemargues that Article 2(c) and the second paragraph of Article 16 of the Rules ofProcedure, concerning the delegation procedure, infringe the principle of collectiveresponsibility.  The admissibility of the plea of illegality 282. The Court considers it necessary to examine of its own motion the admissibility ofthe plea of illegality as a whole, without confining itself to the objection raised bythe Commission. 283. Article 184 of the Treaty provides that '[n]otwithstanding the expiry of the periodlaid down in the fifth paragraph of Article 173, any party may, in proceedings inwhich a regulation adopted jointly by the European Parliament and the Council,or a regulation of the Council, of the Commission, or of the [European CentralBank] is at issue, plead the grounds specified in the second paragraph of Article173 in order to invoke before the Court of Justice the inapplicability of thatregulation. 284. The first point to note is that under the case-law of the Court of Justice(Simmenthal, paragraphs 39 to 41), Article 184 of the Treaty expresses a generalprinciple conferring upon any party to proceedings the right to challenge, for thepurpose of obtaining the annulment of a decision of direct and individual concernto that party, the validity of previous acts of the institutions which form the legalbasis of the decision under challenge, if that party was not entitled under Article173 of the Treaty to bring a direct action challenging those acts and by which it wasthus affected without having been in a position to seek to have them declared void. 285. Article 184 of the Treaty must be given a wide interpretation in order to ensureeffective review of the legality of the acts of the institutions. To that effect theCourt of Justice has already held in Simmenthal (paragraph 40) that the scope ofthat article must extend to acts of the institutions which, although not in the formof a regulation, produce similar effects. 286. The Court takes the view that the scope of Article 184 of the Treaty must extendto internal rules of an institution which, although they do not constitute the legalbasis of the contested decision and do not produce effects similar to those of aregulation within the meaning of that article, determine the essential proceduralrequirements for adopting that decision and thus ensure legal certainty for thoseto whom it is addressed. Any addressee of a decision must be able indirectly tochallenge the legality of the measure determining the formal validity of thatdecision, notwithstanding that the measure in question does not constitute the legalbasis of the latter, if it was not in a position to apply for the annulment of thatmeasure before receiving notification of the contested decision. 287. Consequently, those of the Commission's Rules of Procedure which are designedto ensure the protection of individuals may be the subject-matter of a plea ofillegality. 288. Secondly, it should be remembered that the plea of illegality must be limited towhat is necessary for the resolution of the dispute. 289. Article 184 of the Treaty is not intended to enable a party to contest theapplicability of any measure of general application in support of any actionwhatsoever. The general measure claimed to be illegal must be applicable, directlyor indirectly, to the issue with which the action is concerned and there must be adirect legal connection between the contested individual decision and the generalmeasure in question (Case 21/64 Macchiorlati Dalmas e Figli v High Authority [1965]ECR 175, at 187 and 188; Case 32/65 Italy v Council and Commission [1966] ECR389, at 409; Joined Cases T-6/92 and T-52/92 Reinarz v Commission [1993] ECRII-1047, paragraph 57). 290. In this case, the second part of the plea of illegality seeks to establish that theCommission's internal rules on delegation infringe the principle of collectiveresponsibility. However, Enichem does not even argue that the Decision wasadopted under delegated powers, or put forward any evidence to suggest that thatwas the case. Since Enichem has not established the existence of a direct legalconnection between the Decision and the provisions in the Rules of Procedurewhich it claims are illegal, the second part of the plea must be dismissed asinadmissible. 291. As to the first part of the plea of illegality, it should be noted that the Decision wasauthenticated under the provisions of the first paragraph of Article 16 of the Rulesof Procedure. There is therefore a direct legal connection between the Decisionand that article of the Rules of Procedure, which the applicants claim is unlawful. 292. That article sets out the detailed rules for authenticating the measure adverselyaffecting the applicants. The authentication of acts in accordance with the detailedprovisions of the Rules of Procedure is intended to guarantee legal certainty byensuring that the text adopted by the college of Commissioners becomes fixed inthe languages which are binding (judgment of 15 June 1994, paragraph 75). Itfollows that that provision is intended to ensure the protection of the addresseesof the measure and may thus form the subject-matter of a plea of illegality. 293. Consequently, the first part of the plea of illegality raised by LVM, DSM andEnichem against the first paragraph of Article 16 of the Rules of Procedure isadmissible. It is therefore necessary to examine whether that plea is well foundedas regards the alleged failure to comply with the requirement of legal certainty.  The illegality of the first paragraph of Article 16 of the Rules of Procedurefor failure to comply with the requirement of legal certainty 294. According to the applicants, the Decision is illegal because the detailed rules laiddown by the first paragraph of Article 16 of the Rules of Procedure concerning theauthentication of measures are incompatible with the requirement of legal certaintyreferred to by the Court of Justice in the judgment of 15 June 1994. 295. The first paragraph of Article 16 of the Rules of Procedure in force at the time theDecision was adopted provides: 'Instruments adopted by the Commission in the course of a meeting or by writtenprocedure shall be annexed, in the authentic language or languages, to the minutesof the meeting at which they were adopted or at which note was taken of theiradoption. They shall be authenticated by the signatures of the President and theSecretary-General on the first page of the minutes. 296. In the judgment of 15 June 1994 the Court of Justice held that under Article 162(2)of the Treaty the Commission was under an obligation inter alia to take the stepsnecessary to enable the complete text of acts adopted by the college ofCommissioners to be identified with certainty (paragraphs 72 and 73). 297. In that respect, the Court of Justice held that the authentication of measuresprovided for in the first paragraph of Article 12 of the Rules of Procedure in forceat the time of the adoption of the 1988 decision, which provided that '[a]ctsadopted by the Commission, at a meeting or by written procedure, shall beauthenticated in the language or languages in which they are binding by thesignatures of the President and the Executive Secretary was intended to guaranteelegal certainty by ensuring that the text adopted by the college became fixed in thelanguages which were binding. It added: 'Thus, in the event of a dispute, it can beverified that the texts notified or published correspond precisely to the text adoptedby the college and so with the intention of the author (paragraph 75). 298. In the light of those grounds of the judgment of 15 June 1994, it is necessary todetermine whether the rules laid down in the first paragraph of Article 16 of theRules of Procedure (paragraph 295 above) are such as to enable the complete textof acts adopted by the college to be identified with certainty. 299. It should be made clear at the outset that, contrary to what the applicants maintain,the Court of Justice did not make any determination in the judgment of 15 June1994 as to whether the authentication provided for under the first paragraph ofArticle 12 of the Rules of Procedure in force at the time of the adoption of the1988 decision constituted the only method of authentication which would meet therequirement of legal certainty. Although the Court indicated the purpose of theauthentication of measures (paragraph 75 of the judgment), it did not state that the detailed rules on authentication in the first paragraph of Article 12 of the Rules ofProcedure then in force were the only ones capable of achieving that aim. 300. Moreover, it was undisputed between the parties before the Court of Justice thatthe Commission had infringed the provisions on authentication laid down by theCommission's Rules of Procedure, with the result that the Court could find theoriginal decision unlawful on the ground of infringement of essential proceduralrequirements without having to rule on the legality of authentication in the termslaid down by the first paragraph of Article 12 of the old Rules of Procedure. 301. Finally, the applicants consider that the signature on the minutes does not complywith the requirement of legal certainty because in the absence of any instrumentcarrying the signature of the President and the Secretary-General it is not possibleto verify that texts notified or published correspond perfectly with the text adoptedby the college of Commissioners. They conclude that all that has beenauthenticated is the first page of the minutes. 302. That argument cannot be accepted. The Court considers that the rules laid downin the first paragraph of Article 16 of the Rules of Procedure constitute a sufficientguarantee for determining, in case of dispute, whether texts notified or publishedcorrespond perfectly with the text adopted by the college and thus with theintention of their author. Since that text is annexed to the minutes, and the firstpage of the minutes is signed by the President and the Secretary-General, there isa link between those minutes and the documents which they cover which allowscertainty as to the exact content and form of the college's decision. 303. In the absence of a finding by the Community judicature that an authority has notcomplied with its usual practice, the latter must be presumed to have acted inaccordance with the applicable legislation. 304. Therefore, the authentication provided for in accordance with the rules in the firstparagraph of Article 16 of the Rules of Procedure must be regarded as lawful. Theplea must therefore be dismissed. 2. Infringement of the principle of collegiality and of the Commission's Rulesof Procedure Arguments of the parties 305. LVM and DSM argue that the Commission infringed its Rules of Procedure whenadopting the Decision. In their replies, they state that the copy of the Decisionmarked 'certified copy notified to them was signed by the Member of theCommission in charge of competition matters, thus implying that the Decision wasadopted not by the college of Commissioners but only by the Member concerned, in breach of the principle of collegiality. They submit that that is sufficient toundermine the presumption that the Decision is valid (Case T-37/91 ICI vCommission, cited above; Case T-31/91 Solvay v Commission [1995] ECR II-1821).LVM and DSM request the Court to order the Commission to produce furtherinformation in that respect. 306. Elf Atochem states that the Decision was adopted barely a month after thejudgment of the Court of Justice, and that, according to statements by aCommission spokesman to the press, it was adopted without discussion in thecollege. It maintains that those factors are sufficient to call the validity of theDecision into question for infringement of the principle of collegiality. 307. The Commission considers that an infringement of the internal rules for adoptinga decision may be relied on only where the applicant is able to demonstrate, byspecific evidence, that there is reason to doubt the validity of the adoption of thedecision. In the absence of such evidence, it maintains, the Commission measuremust be deemed to have been validly adopted (Deere, paragraph 31). In this case,the applicants have not adduced any specific evidence. Findings of the Court 308. The fact that the copy of the Decision addressed to LVM and DSM bears thename of the Member of the Commission responsible for competition matters andthe words 'certified copy ('voor gelijkluidend afschrift in Dutch) does notconstitute evidence that the Decision was adopted in breach of the principle ofcollegiality. The text of the Decision indicates that it is a 'decision of theCommission. Moreover, that same text indicates that it is 'the Commission of theEuropean Communities which, having considered the facts and the legalassessment, issued the Decision. 309. Thus, these applicants do not advance any evidence or specific fact such as todisplace the presumption of validity which applies to Community acts (DunlopSlazenger, paragraph 24). 310. In the absence of such evidence, the Court of First Instance cannot order themeasures of inquiry requested. 311. Moreover, the fact that the Decision was issued shortly after the judgment of 15June 1994 and the fact, if it were established, that it was adopted without discussionin the college of Commissioners do not in any way imply that the principle ofcollegiality has been infringed. 312. It follows that the pleas must be rejected. 3. The composition of the file submitted to the college of Commissioners fordeliberation 313. ICI maintains that as a result of the defects affecting the administrative procedurethe college of Commissioners was unable to take cognisance of all the relevantdocuments in the case, and in particular a fresh report of the hearing officer anda fresh report of the outcome of the consultation of the Advisory Committee,before adopting the Decision. The college, whose composition had largely changedsince 1988, was thus not informed of ICI's pleas in defence. 314. The Commission considers that that plea is devoid of legal foundation. 315. It should be remembered that, after the annulment of the 1988 decision by theCourt of Justice on 15 June 1994, the Commission did not commit any error in lawby not carrying out a fresh hearing of the undertakings concerned or a freshconsultation of the Advisory Committee before adopting the Decision (paragraphs246 to 258 above). 316. Since the applicant's argument is based on a false premiss, the plea is without legalfoundation and must therefore be rejected. 4. Infringement of the principle that decisions must be made and deliberatedby the same body, and of the principle of immediacy Arguments of the parties 317. Hüls argues that by virtue of the principle that decisions must be made anddeliberated by the same body, a decision may be adopted only by persons whoparticipated in the procedure or had the opportunity to form a direct opinion onthe matter. In this case, most of the Members of the Commission at the date theDecision was adopted, in particular the Member with responsibility for competitionmatters, and the Director-General of the Commission's Directorate-General forCompetition (DG IV) were no longer those in office at the time of the inquiry intothe matter in 1988. 318. The applicant maintains that in competition matters the Commission should not beregarded as an administration as such, that is to say as an institution independentof its Members. Reference may be made in that respect to Articles 1 and 12 of theRules of Procedure, which stipulate that the Commission is to act collectively, andto Article 6 of the rules concerning the hearing officer. 319. BASF, Wacker and Hoechst argue that the Commission has infringed the principleof immediacy. BASF observes that when the Decision was adopted most of theMembers of the Commission and the Director-General of DG IV were no longer the same as those in office in 1988. The Decision was thus adopted by persons whowere not fully informed in the matter and had no opportunity to become soinformed after delivery of the judgment of 15 June 1994. The applicants state thattheir plea does not demand that Members of the Commission be personally presentat hearings, but that they be precisely informed of what is said at them throughimplementation of the Rules of Procedure and, in particular, consultation of thehearing officer. 320. Finally, Wacker and Hoechst maintain that the persons who drew up the decisionshould have participated in the hearings, or at the very least have been able toobtain within a short time the impression which they produced on otherparticipants. That was not so in this case, most of the Members of the Commissionat the date of the hearing being no longer in office when the Decision was adopted. 321. The Commission argues that the principle that the deciding body be identical withthe deliberating body and the principle of immediacy do not exist. Communityprocedural law on competition rests on authorities invested with a function and noton persons exercising the functions in question (ACF Chemiefarma, paragraphs 71and 72). There is no provision requiring that the various stages of a competitionproceeding should take place during a single mandate of Members of theCommission. Findings of the Court 322. The applicants claim infringement of a general principle requiring continuity in thecomposition of an administrative body handling a procedure which may lead to afine. 323. There is no such general principle (ACF Chemiefarma, paragraph 72). 324. The plea is therefore unfounded and must be dismissed. C  The alleged defects in the administrative procedure 325. The applicants raise a number of alternative pleas alleging irregularities during theadministrative procedure prior to the adoption of the Decision. The Court notesin that context that at the hearing Wacker and Hoechst withdrew their plea ofinfringement of Article 3 of Council Regulation No 1 of 15 April 1958 determiningthe languages to be used by the European Economic Community (OJ, EnglishSpecial Edition 1952-1958, p. 59) and that the Registrar took official note of thatwithdrawal. 326. A distinction can be made between those pleas according to whether they relateto defects in the notification of the statement of objections or defects relating tothe hearing. The plea alleging infringement of the right of access to theCommission's file will be examined after the part of this judgment concerning thesubstance. 1. The pleas alleging defects in the notification of the statement of objections (a) Formal defects in the notification of the statement of objections Arguments of the parties 327. Wacker and Hoechst maintain that the Decision is based on improper notificationof the statement of objections. Firstly, they maintain, it was notified only by aCommission official, in breach of Article 2 of Regulation No 99/63. Secondly, thestatement of objections, consisting of a bulky document which it was impossible toidentify as complete, infringed the provisions of the same Article 2, whereby theCommission is to notify its objections in writing. The objections ought therefore tohave been notified in a single written document. Thirdly, the statement ofobjections should have been signed by its author. 328. The Commission considers that the plea is clearly unfounded. Findings of the Court 329. As regards the alleged delegation to a Commission official of the notification of thestatement of objections, the documents before the Court show that the statementof objections addressed to the applicants was accompanied by a letter signed by theDeputy Director-General of DG IV on behalf of the Director-General. 330. In signing that letter the Deputy Director-General was acting not under adelegation of powers but simply under a proxy received by the Director-Generalfrom the Commissioner responsible (Case 52/69 Geigy v Commission [1972] ECR787, paragraph 5). Such delegation constitutes the normal method by which theCommission exercises its powers (VBVB and VBBB, paragraph 14). 331. As the applicants have not supplied any evidence to suggest that the Communityadministration has failed to observe the rules applicable in the matter (VBVB andVBBB, paragraph 14), the complaint must be dismissed. 332. The complaints alleging failure to comply with the formal rules concerning thestatement of objections must likewise be dismissed. 333. Under Article 2(1) of Regulation No 99/63, '[t]he Commission shall informundertakings and associations of undertakings in writing of the objections raisedagainst them. That provision does not require that the statement of objectionsbear a handwritten signature on the document itself, or that it should consist of aformally single instrument. 334. In the light of the above, the plea must be dismissed. (b) Infringement of Article 3 of Council Regulation No 1 Arguments of the parties 335. BASF, Hüls and Enichem argue that the Commission infringed Article 3 ofRegulation No 1. The statement of objections included annexes which wereindispensable to a proper understanding of the objections and which were notwritten in the language of the Member State having jurisdiction with regard tothose applicants. That also applied to the documents sent by the Commission on3 May 1988. Enichem adds that the Commission also infringed Article 4 ofRegulation No 99/63. 336. The Commission considers that the applicants' arguments are contrary to thewording and spirit of Article 3 of Regulation No 1. It also maintains that theabundance of the applicants' reactions demonstrates that in fact they have had noparticular difficulty in understanding all the evidence. Findings of the Court 337. The annexes to the statement of objections not emanating from the Commissionshould be regarded not as 'documents within the meaning of Article 3 of CouncilRegulation No 1 but as supporting evidence on which the Commission relies. Theyare therefore to be brought to the attention of the addressee as they are (see, inparticular, Case T-148/89 Tréfilunion v Commission [1995] ECR II-1063, paragraph21). The Commission has thus committed no infringement of Article 3 of CouncilRegulation No 1. 338. As to the infringement of Article 4 of Regulation No 99/63 alleged by Enichem, thebody of the statement of objections which was notified to that applicant in Italiancontains relevant extracts from the annexes. That method of presentation was thussufficient to enable it to determine precisely the facts and legal reasoning on whichthe Commission relied (Tréfilunion, paragraph 21) and therefore properly to defendits rights. 339. The plea must therefore be dismissed. (c) Insufficient time to prepare the reply to the statement of objections Arguments of the parties 340. Wacker and Hoechst maintain that the Commission did not put them in a positionto take cognisance of the file and subsequently make their point of view knowneffectively (Case 121/76 Moli v Commission [1977] ECR 1971, paragraph 20). Byrefusing, despite the circumstances of the case, to extend the period granted to theundertaking to submit its observations in reply to the statement of objections, theCommission infringed both the rights of the defence and Article 11 of RegulationNo 99/63. 341. BASF argues that it did not have sufficient time to examine the documents whichwere notified to it by letter of 3 May 1988. 342. The Commission replies to Wacker and Hoechst that the provisions of Article 11of Regulation No 99/63 were complied with. The applicant thus had two monthsto reply in writing to the statement of objections and five months to prepare for thehearing of September 1988. Those periods were pefectly adequate, especially whencompared with the periods laid down in the fifth paragraph of Article 173 of theTreaty (Case 27/76 United Brands v Commission [1978] ECR 207, paragraphs 270to 273). The fact that some of the annexes to the statement of objections were notin the applicant's language does not affect that conclusion, since the applicant andits lawyer could not have had any difficulty in understanding them. 343. In reply to BASF, the Commission states that having regard to the wording of theCommission's letter of 3 May 1988 the applicant could not claim not to haveunderstood until after the adoption of the Decision that the documents annexedthereto were relevant to its defence; that was a matter for it to determine. Theletter having been addressed on 3 May 1988, and the replies given on 10 June 1988,the period allowed the applicant was sufficient; moreover, the applicant submittednumerous comments without asking for any extension of the period. The provisionsof Article 11(1) of Regulation No 99/63 were therefore complied with. Findings of the Court 344. Article 2(4) of Regulation No 99/63 provides: 'The Commission shall when givingnotice of objections fix a time limit up to which the undertakings and associationsof undertakings may inform the Commission of their views. For that purpose,Article 11(1) of the same regulation provides: '... the Commission shall have regardboth to the time required for preparation of comments and to the urgency of thecase. The time limit shall be not less than two weeks; it may be extended. 345. In this case, the statement of objections was sent to the undertakings concerned on5 April 1988. They were to state their views on the objections by 16 May 1988. 346. By letter of 3 May 1988, the Commission sent a series of further documents to theaddressees of the statement of objections, stating that, although the documentswere not cited in the statement of objections, '[they] may be relevant in assessingthe matter as a whole. 347. Wacker and Hoechst requested an extension of the period until 15 July 1988. Byletter of 18 May 1988, the Commission decided to grant them an extension until 10June 1988, to take account in particular of the delivery of the further documentson 3 May 1988. 348. To BASF's application for an extension of 5 May 1988, which reached theCommission on 17 May 1988, the Commission replied by letter of 24 May 1988fixing the deadline for the reply to the statement of objections as 10 June 1988. 349. The Court considers that in the circumstances of the present case the period ofapproximately two months thus granted to the applicants was sufficient to allowthem to prepare their reply to the statement of objections (to that effect, seeUnited Brands, paragraphs 272 and 273). 350. The plea must therefore be dismissed. 2. The pleas alleging defects relating to the hearing (a) Insufficient time to prepare for the hearing 351. Wacker and Hoechst argue that the hearing officer did not have sufficient time toprepare the hearing. 352. The Commission maintains that there is no evidence for that statement. 353. Assuming that the applicants had the capacity to raise such a plea, they have notindicated why the period allowed to the hearing officer to prepare for the hearingwas insufficient, or even how, if their claim were founded, that fact could havevitiated the administrative procedure. 354. The plea must therefore be dismissed as unfounded. (b) Infringement of Article 3 of Regulation No 1 Arguments of the parties 355. BASF, Wacker, Hoechst and Enichem argue that the Commission has infringedArticle 3 of Regulation No 1. The minutes of the hearing reproduced thestatements of the various parties in the languages which they used, and not solelyin the language of the Member State having jurisdiction over the applicants. InBASF's submission, those statements are also essential since, ex hypothesi, theobjection made against each of the undertakings is that they implemented anagreement between them. 356. The Commission considers that plea to be unfounded. Findings of the Court 357. Article 9(4) of Regulation No 99/63 provides that 'the essential content of thestatements made by each person heard shall be recorded in minutes which shall beread and approved by him. 358. In this case, it is undisputed that the applicants were in a position effectively totake cognisance of the essential content of their own statements recorded in theminutes. 359. Furthermore, the applicants, who do not deny that it was possible for them tofollow what was said during the hearing owing to the simultaneous interpretationprovided, do not allege that the lack of a translation of the parts written in alanguage other than that of the Member State having jurisdiction over themresulted in the minutes' containing substantial inaccuracies or omissions in theirregard which could have had harmful consequences capable of vitiating theadministrative procedure (ACF Chemiefarma, paragraph 52; Parker Pen, paragraph74). 360. The plea must therefore be rejected. (c) Minutes of the hearing not complete Arguments of the parties 361. BASF maintains that the minutes of the hearing were incomplete. They did notcontain decisive parts of the statements of other undertakings. Thus, contrary towhat was stated therein, the minutes did not have attached to them the argumentsmade on behalf of all the undertakings concerned, the argument of the applicantand that of the other undertakings. Since the accusations were of collusion,however, it was essential to take cognisance of and to examine the defencessubmitted by the other parties. BASF adds that the Commission cannot rely onArticle 9(4) of Regulation No 99/63, since that concerns only the checking of the accuracy of the contents of the minutes by the party heard, not the right to takecognisance of the statements of other parties. 362. Wacker and Hoechst submit an identical plea based on the absence of any mentionin the minutes of statements common to various undertakings. 363. The Commission considers that the minutes of the hearing, as notified to BASF,complies with Article 9(4) of Regulation No 99/63 inasmuch as it enables the latterto approve its own statements. There would be no sense in submitting to theapplicant for approval the text of statements made by the other undertakings andtheir lawyers at the hearing. 364. BASF, Wacker and Hoechst were aware of those statements in any event, sincethey attended the hearing. Findings of the Court 365. During the oral phase of the administrative procedure before the Commissionwhich took place from 5 to 8 September 1988 and on 19 September 1988, thoseconcerned had the opportunity to argue jointly their views on certain subjects. 366. In the minutes of the hearing, communicated to each of the participants, thesubmissions made in common were set out in summary form. 367. They also show that the full text of the various submissions on behalf of thoseconcerned was to be contained in annexes forming part of the minutes. However,it is clear that those annexes were not attached to the document. 368. That does not constitute a defect in the administrative procedure sufficient to taintthe resulting Decision with illegality, however. The purpose of Article 9(4) ofRegulation No 99/63 (cited above at paragraph 357) is to assure the persons heardthat the minutes contain a true record of the substance of what they have said(Case 48/69 ICI, paragraph 29). In so far as the common submissions concernedthe applicants, they were able to know the essential content of those statementsbecause they were recorded in the minutes of the hearing. Moreover, they do notargue that the reproduction of those statements in summary form containsinaccuracies. Finally, given that those arguments were submitted on behalf of theapplicants, they cannot successfully claim that they were not sufficiently aware ofthem. 369. Nor does the failure to communicate the text of the argument of BASF and otherswho submitted observations in the annex to the minutes constitute a defect in theadministrative procedure sufficient to taint the Decision with illegality, since theminutes themselves report the essential statements. 370. In any event, BASF, Wacker and Hoechst participated at the hearing and wereable on that occasion to take note of the subjects which were actually argued incommon and of the observations submitted individually by other persons. 371. The plea must therefore be dismissed. (d) Failure to produce the opinion of the hearing officer Arguments of the parties 372. Wacker and Hoechst argue that they should have had the opportunity to take noteof the opinion of the hearing officer and to comment upon it. The Commission thusunlawfully failed to produce the opinion of the hearing officer. 373. BASF and Hüls argue that the Decision is illegal for failure to take account of thehearing officer's report. The report drawn up by the hearing officer at the time ofthe 1988 decision might contain assessments of fact and law supporting criticismsmade by the undertakings. They therefore ask the Court of First Instance torequest the Commission to produce the report of the hearing officer. 374. The Commission rejects the request for communication of the report of the hearingofficer on the ground that it is an internal document to which third parties have noaccess. Findings of the Court 375. The Court observes that the rights of the defence do not require that undertakingsinvolved in a proceeding under Article 85(1) of the Treaty be able to comment onthe report of the hearing officer, which is a purely internal Commission document.As has been held, since that report is purely advice for the Commission, which isno way bound to follow it, it does not have any decisive aspect which theCommunity judicature must take into account in exercising its review (order of 11December 1986 in Case 212/86 R ICI v Commission, not published in the ECR,paragraphs 5 to 8). Observance of the rights of the defence is sufficiently assuredwhere the various authorities which contribute to the final decision are correctlyinformed of the arguments of the undertakings in reply to the objectionscommunicated to them by the Commission and the evidence submitted by theCommission in support thereof (Michelin, paragraph 7). 376. In that regard, it is important to note that it is not the purpose of the hearingofficer's report to supplement or correct the arguments of the undertakings, or toformulate new objections or to supply new evidence against them (see, inparticular, Case T-2/89 Petrofina v Commission [1991] ECR II-1087, paragraph 54;Hüls, paragraph 87). 377. The undertakings are therefore not entitled, in order to ensure that their rights ofdefence are observed, to require communication of the report of the hearing officerin order to be able to comment on it (Petrofina, paragraph 55; Hüls, paragraph 88). 378. The plea must therefore be rejected. D  The alleged infringement of Article 190 of the Treaty Arguments of the parties 379. Some of the applicants maintain that the duty to state reasons under Article 190of the Treaty has been infringed in several respects. 380. Thus, Wacker and Hoechst maintain that insufficient reasons were stated for theDecision on the three following essential points: existence of all the factorsconstituting the infringement, classification as an agreement or concerted practiceand participation of those applicants. 381. Montedison argues that the Decision does not reveal the considerations which ledthe Commission to decide to confirm the fines already imposed in respect of factswhich allegedly took place 10 to 15 years previously (Case C-27/89 Scarpe [1990]ECR I-1701, paragraph 27; Case T-3/89 Atochem v Commission [1991] ECR II-1177, paragraph 222). In this case, it maintains, there is no legitimate interest (seea contrario Case 7/82 GVL v Commission [1983] ECR 483; Automec, paragraph 85)to justify prosecuting an undertaking which withdrew from the market more than10 years ago. , 382. ICI argues that the Decision contains no reasoning justifying the Commission'sdelay in taking it, the decision not to serve a fresh statement of objections and tohear the parties, the use of documents discovered in the course of a separateinvestigation and evidence obtained in breach of the right not to give evidenceagainst oneself, the refusal to grant access to the file in accordance with the case-law, the imposition of a fine based on an error of fact and the conclusion that the1988 decision remained valid against Solvay and Norsk Hydro. 383. Hüls argues that the text of the Decision itself is incomprehensible without thedocuments to which it refers, none of which are annexed to the Decision.Moreover, in its legal assessement, the Commission did not refer either to specificand definite evidence, or to the facts set out at the beginning of the Decision.Finally, it argues that the Decision is not correctly reasoned, especially taking intoaccount the duration of the procedure (Sytraval and Brink's France, paragraph 77in conjunction with paragraph 56). 384. Enichem argues that the Commission has failed to explain why it is again penalisingthe undertakings in question after such a long period of time. Neither RegulationNo 2988/74, which might at most support the powers of the Commission but notexplain its approach in the matter, nor the fact that the Commission had alreadydecided to impose the fines in 1988, which does not imply that it was required todo so again after the judgment of 15 June 1994, is sufficient in that regard. 385. The Commission considers that plea unfounded. It maintains that the Decisioncomplies with the requirements of Article 190 of the Treaty. Findings of the Court 386. It is settled case-law that the purpose of the obligation to give reasons for anindividual decision is to enable the Community judicature to review the legality ofthe decision and to provide the party concerned with an adequate indication as towhether the decision is well founded or whether it may be vitiated by some defectenabling its validity to be challenged; the scope of that obligation depends on thenature of the act in question and on the context in which it was adopted (see, inparticular, Case T-49/95 Van Megen Sports v Commission [1996] ECR II-1799,paragraph 51). 387. In this case, it must first be emphasised that the first recital in the preamble to theDecision refers to 'the Treaty establishing the European Community, which,impliedly but necessarily, constitutes a formal reference to the task assigned to theCommission (paragraphs 148 and 149 above). That reference alone constitutessufficient reasoning for the Commission's interest in finding an infringement andpenalising the undertakings for it. Since the Commission has a discretionary powerin implementing the prerogatives conferred upon it by the Treaty in the area ofcompetition law, it is not required to explain further the grounds which led it tochoose that course. Therefore, the allegations of Montedison and Enichem mustbe rejected. 388. As regards the insufficiency of reasoning alleged by Wacker, Hoechst and Hüls, theCourt finds that although Article 190 of the Treaty requires the Commission tostate the elements of fact and law which constitute the legal basis of the decisionand the considerations which led it to adopt the decision, it is not required todiscuss all the issues of fact and law which have been raised by every party duringthe administrative proceedings (see, in particular, Van Landewyck, paragraph 66).In that respect, the Court finds that paragraphs 7 to 27 of the recitals constitute aclear statement of the main documents regarded by the Commission as evidenceof infringement. Similarly, paragraphs 28 to 39 of the recitals constitute sufficientreasoning for the legal consequences which it drew from the facts. 389. The fact that the Commission gives no explanation for its delay in taking theDecision, the procedural choice not to serve a fresh statement of objections or tohear the parties, the use of documents discovered in the course of a separateinvestigation and evidence obtained in breach of the right not to give evidenceagainst oneself, the refusal to grant access to the file in accordance with the case-law and the imposition of a fine based on an error of fact cannot constituteinsufficient reasoning for the decision. Those arguments raised by ICI areessentially concerned only with challenging the validity of the Commission'sassessment concerning those various questions. Such arguments, which fall withinthe scope of an examination of whether the decision was justified, are irrelevant inthe present context. 390. Finally, as regards ICI's argument that insufficient reasons were given concerningthe validity of the 1988 decision in respect of Norsk Hydro and Solvay, it issufficient to note that the Decision contains express reasoning on this point.Paragraph 59 of the recitals in the preamble to the Decision states that '[s]inceSolvay did not make an application to the Court of Justice for the annulment of thedecision, and Norsk Hydro's application was declared inadmissible, Decision89/190/EEC remains valid as against them. 391. In the light of the foregoing, this plea must be dismissed. II  The pleas on the substance 392. The applicants have essentially three lines of argument. First, they make a seriesof pleas in law on the matter of evidence (A). Secondly, they dispute the existence,both in fact and in law, of an infringment of Article 85(1) of the Treaty (B).Thirdly, each of them submits arguments to show that, in any event, it did notparticipate in the alleged infringement of which it is accused (C). A  The evidence 393. There are two aspects to the applicants' pleas. They begin by challenging theadmissibility of some of the evidence brought against them, and go on to disputethe probative value of the elements held by the Commission to prove the caseagainst them. 1. The admissibility of the evidence 394. The applicants argue that evidence held against them is inadmissible, and make sixpleas in law to that effect: first, infringement of the principle of the inviolability ofthe home; secondly, infringement of the principles of the right to silence and the right not to incriminate oneself; thirdly, infringement of Article 20 of RegulationNo 17; fourthly, they dispute that refusal to reply to requests for information or toproduce documents may be held to constitute evidence against them; fifthly, theyargue that certain documents were never communicated to them, or, sixthly, werecommunicated to them only belatedly. 395. As the applicants point out, the common feature of these pleas is that, if they arewell founded, the documents in question must be removed from the proceedingsand the lawfulness of the decision assessed without them (AEG, paragraphs 24 to30; order of the President of the Court of Justice in Case 46/87 R Hoechst vCommission [1987] ECR 1549, paragraph 34). (a) Infringement of the principle of inviolability of the home Arguments of the parties 396. LVM and DSM argue as a preliminary point that the Court of First Instance hasjurisdiction to review the compliance of an investigation carried out under Article14 of Regulation No 17 with Article 8 of the ECHR. In the first place, thatprovision is directly applicable in Community law. Secondly, an investigation on thebusiness premises of a natural or legal person, pursuant to Article 14(3) ofRegulation No 17, constitutes a search falling within the scope of Article 8 of theECHR. 397. Again as a preliminary point, the applicants consider that even if they did not bringan action challenging the decisions to investigate they retain an interest in havingtheir legality reviewed, inasmuch as the Decision is based on evidence obtainedimproperly. Moreover, the investigation carried out on the premises of DSM on 6December 1983 was based on an authorisation under Article 14(2) of RegulationNo 17 which could not form the subject-matter of an action for annulment on thebasis of Article 173 of the Treaty. 398. In the first part of this plea, the applicants argue that in the course of itsinvestigations the Commission infringed the principle of inviolability of the homewithin the meaning of Article 8 of the ECHR as interpreted in the case-law of theEuropean Court of Human Rights (Niemietz v Germany, judgment of 16 December1992, Series A, No 251-B), whose review is more extensive than that performed inthe context of Community law (Hoechst, cited above; Case 85/87 Dow Benelux vCommission [1989] ECR 3137). 399. Firstly, the formal acts relating to the investigations were adopted without priorjudicial authorisation. Secondly, the decisions or authorisations for investigationwere formulated in general terms, without limitation, and thus did not permit thesubject-matter of the investigation to be identified, as shown by the decision of 4 November 1987 to investigate at LVM and the authorisation of 29 November 1983on the basis of which DSM's premises were the subject of an investigation on 6December 1983. Thirdly, the applicants argue that only necessary investigations maybe carried out (Article 14(1) of Regulation No 17 and Article 8 of the ECHR).That requirement of necessity must be assessed in the light of the description of theassumptions which the Commission intended to verify, a description preciselylacking in the present case. 400. The applicants conclude that all the formal acts relating to the investigationsadopted by the Commission in the present case are vitiated by illegality. 401. Enichem, for its part, argues that 'the following decision to investigate is illegalbecause its subject-matter was formulated in ... general terms, and thus infringedArticle 14 of Regulation No 17. 402. In the second part of the plea, LVM and DSM challenge the way in which theCommission's investigations were conducted; the nature and volume of thedocuments actually examined at the time indicates that they encroached on businessconfidentiality. 403. The Commission begins by arguing that the ECHR does not apply to Communitycompetition procedures. In addition, it maintains that the plea is not admissible onaccount of the applicants' failure to bring an action challenging the Commission'sdecision ordering the disputed investigation. 404. As to the merits of the plea, the Commission considers that the relevance of thecase-law of the Court of Justice (Hoechst and Dow Benelux, cited above) is notaffected by Article 8 of the ECHR as interpreted by the European Court ofHuman Rights. Findings of the Court 405. In this case, the Commission carried out investigations under Article 14(2) ofRegulation No 17 at the premises of the following undertakings: Shell and ICI onthe basis of an authorisation of 16 November 1983; DSM on the basis of anauthorisation of 29 November 1983; EVC, a joint undertaking of ICI and Enichem,on the basis of an authorisation of 17 July 1987; and Hüls on the basis of anauthorisation of 17 September 1987. 406. In addition, the Commission adopted decisions to investigate under Article 14(3)of Regulation No 17 on 15 January 1987, addressed to Alcudia, Atochem, BASF,Hoechst and Solvay, and on 4 November 1987, addressed to Wacker and LVM. 407. The Court will first examine the admissibility of the plea, which is disputed by theCommission, and then its merits. (i) The admissibility of the plea 408. The decisions to investigate are in themselves measures which may be the subject-matter of an action for annulment on the basis of Article 173 of the Treaty. Thus,Article 14(3) of Regulation No 17 expressly provides that the decision to investigatemust indicate 'the right to have the decision reviewed by the Court of Justice. 409. It is settled case-law that a decision adopted by a Community institution which hasnot been challenged by its addressee within the time-limit laid down by Article 173of the Treaty becomes definitive as against him. Such a rule is based in particularon the consideration that the periods within which legal proceedings must bebrought are intended to ensure legal certainty by preventing Community measureswhich produce legal effects from being called in question indefinitely (see, inparticular, Case C-178/95 Wiljo v Belgian State [1997] ECR I-585, paragraph 19). 410. LVM is therefore time-barred from arguing that the investigation decision that wasaddressed to it, and which it did not challenge within the time-limits, was illegal,and the plea is therefore inadmissible. 411. On the other hand, LVM and DSM may, in so far as documents obtained by theCommission are used against them, challenge the legality of investigation decisionsaddressed to other undertakings whose actions to challenge the legality of thosedecisions directly, if brought, may or may not have been admissible. 412. Similarly, in the context of an action for the annulment of the final decision, theapplicants may challenge the legality of the authorisations to investigate, which arenot measures that may be challenged by an action under Article 173 of the Treaty. 413. Finally, the case-law of the Court of Justice shows that an undertaking may notchallenge the legality of the manner in which investigation procedures are carriedout in the context of an action for the annulment of the measure on the basis ofwhich the Commission carries out that investigation. Judicial review of theconditions in which an investigation was conducted falls within the scope of anaction which may, in an appropriate case, be brought for the annulment of the finaldecision adopted by the Commission pursuant to Article 85(1) of the Treaty (DowBenelux, paragraph 49; Opinion of Advocate General Mischo in that case, point 127in fine; order in Case T-9/97 Elf Atochem v Commission [1997] ECR II-909,paragraph 25). 414. The applicants may also therefore challenge the manner in which investigationprocedures of the Commission were conducted. 415. In those circumstances, the inadmissibility pleaded by the Commission must belimited to the plea by LVM inasmuch as it is directed against the investigationdecision addressed to that company. 416. However, in the case of the plea as set out by Enichem, the Court finds thatneither the applicant's written submissions nor the oral procedure enable it toidentify the investigation decision whose validity the applicant is challenging. Theplea must, therefore, in so far as it is raised by Enichem, be declared inadmissibleas the Court is unable to discern its meaning and scope. (ii) The merits of the plea 417. For the reasons set out above (paragraph 120), the plea must be understood asalleging infringement of the general principle of Community law ensuringprotection against intervention by the public authorities in the sphere of privateactivities of any person, whether natural or legal, which are disproportionate orarbitrary (Hoechst, paragraph 19; Dow Benelux, paragraph 30; Joined Cases 97/87,98/87 and 99/87 Dow Chemical Ibérica v Commission [1989] ECR 3165, paragraph16). 418. This plea is divided into two parts, the first concerning the validity of the formalacts relating to the investigations, the other the validity of their implementation.  The first part of the plea, concerning the validity of the formal acts relatingto the investigations 419. In the first place, it is not disputed that the decisions to investigate sent by theCommission to certain undertakings in 1987 are identical, or similar, to that whichit sent to Hoechst on 15 January 1987. That latter undertaking brought an actionseeking the annulment of that decision, which was dismissed by the Court of Justice(Hoechst, cited above). In so far as the pleas and arguments put forward today byLVM and DSM are identical or similar to those put forward at that time byHoechst, the Court sees no reason to depart from the case-law of the Court ofJustice. 420. That case-law is, moreover, based on the existence of a general principle ofCommunity law, as referred to above, which applies to legal persons. The fact thatthe case-law of the European Court of Human Rights concerning the applicabilityof Article 8 of the ECHR to legal persons has evolved since the judgments inHoechst, Dow Benelux and Dow Chemical Ibérica therefore has no direct impact onthe merits of the solutions adopted in those cases. 421. Secondly, it is apparent from Article 14(2) of Regulation No 17 that investigationscarried out on a simple authorisation are based on the voluntary cooperation of theundertakings (Hoechst, paragraph 31; Dow Benelux, paragraph 42; Dow ChemicalIbérica, paragraph 28). That finding is not altered by the fact that a penalty isprovided for in the first part of the sentence in Article 15(1)(c) of Regulation No17. Such a penalty only applies if, having agreed to cooperate in the investigation,the undertaking fails to produce the books or other business documents requestedin full. 422. Since the undertaking did in fact cooperate in an investigation carried out onauthorisation, the plea alleging undue interference by the public authority isunfounded, in the absence of any evidence that the Commission went beyond thecooperation offered by the undertaking. 423. That part of the plea must therefore be dismissed.  The second part of the plea, concerning the implementation of those acts 424. Under this heading, the applicants put forward a single argument, to the effect thatthe number of documents copied and taken away by the Commission representedan infringement of business confidentiality. 425. However, the allegedly excessive volume of documents which the Commissioncopied, which is, moreover, not otherwise defined by the applicants, cannot in itselfconstitute a defect in the conduct of the investigation, particularly when theCommission was carrying out an inquiry into an alleged agreement between all theEuropean producers in a given sector. Moreover, under Article 20(2) of RegulationNo 17, officials and other servants of the Commission are under an obligation notto disclose information acquired by them as a result of the application of theregulation and which, by their nature, are covered by business privilege. 426. It has therefore not been established that the investigations carried out by theCommission were irregular. 427. In the light of the foregoing, this plea must be dismissed in its entirety. (b) Infringement of the 'right to silence and the privilege against self-incrimination Arguments of the parties 428. The plea may be divided into two parts. 429. In the first part of this plea, LVM, DSM and ICI recall that under Article 14(3) ofthe International Covenant on Civil and Political Rights and Article 6 of theECHR, as interpreted by the European Court of Human Rights, any accusedperson, including an undertaking, has the right, ab initio, to remain silent (Funkev France (ECHR), cited above, paragraph 44; Opinion of the EuropeanCommission on Human Rights of 10 May 1994, Saunders v United Kingdom,paragraphs 69, 71 and 76; contra the previous judgment of the Court of Justice inOrkem, paragraphs 30 to 35 and 37 to 41, the assessment in which, being some waybehind that in Funke v France, no longer has any meaning in the applicants'submission). The applicants argue that the Commission cannot ignore the case-lawof the European Court of Human Rights (Case C-260/89 ERT [1991] ECR I-2925,paragraph 41; Orkem, paragraph 30). 430. The applicants conclude that any information obtained by the Commission on thebasis of Article 11 of Regulation No 17 should be removed from the proceedings.In their submission, that applies both to the decisions to require information underArticle 11(5) of Regulation No 17 and to requests for information under Article11(1) of the regulation; since the penalties laid down by Article 15(1)(b) of theregulation apply in both cases, the applicants argue that this is a case ofinformation obtained under duress within the meaning of the case-law of theEuropean Court of Human Rights. 431. The applicants maintain that the rights of the injured undertakings cannot beignored on the ground that such a conclusion is likely to call into question thelegality of Article 11 of Regulation No 17 taken as a whole; it was thus for theCommission to establish proof of infringement by some other means compatiblewith Articles 6 and 8 of the ECHR. 432. Therefore, none of the replies given by the undertakings to the requests forinformation addressed to them by the Commission may be used to constituteevidence. 433. In the second part of this plea, LVM, Elf Atochem, DSM, ICI and Enichem invokethe privilege against self-incrimination. 434. In those circumstances, LVM, Elf Atochem, DSM and ICI argue, the replies givento the questions which were declared unlawful in the judgments of the Court ofJustice in Orkem, and in Case 27/88 Solvay v Commission [1989] ECR 3355 shouldbe removed from the proceedings. 435. Elf Atochem challenges on that basis the decision under Article 11(5) of RegulationNo 17 of which it was the addressee. By contrast, LVM, DSM and ICI challengethe legality of all the requests for information, to whatever undertaking they wereaddressed and whatever their legal basis. 436. Enichem maintains that, by obliging the undertakings to submit to investigations,even though it had not the slightest evidence of the practices sought, theCommission led the undertakings to incriminate themselves. 437. The Commission repeats that the ECHR does not apply to Community competitionprocedures. The plea is, moreover, inadmissible on account of the applicants'failure to bring an action challenging the decisions to require information. 438. In any event, the Commission observes that the undertakings have not provided anyanswer in this case to any of the questions held to be contrary to Community lawby the Court of Justice (Orkem and Case 27/88 Solvay). Findings of the Court 439. In the context of its enquiry in this affair, the Commission sent most of theapplicants requests for information under Article 11 of Regulation No 17. Some ofthem were requests for information under Article 11(1) of the regulation, whilstothers were decisions based on Article 11(5). 440. The Court will first examine the admissibility of the plea, which is disputed by theCommission, and then its merits.  The admissibility of the plea 441. For the reasons set out above in relation to decisions to investigate, and whichapply likewise to decisions requiring information, the applicants are time-barredfrom pleading the illegality of the decisions requiring information which wereaddressed to them and which they did not challenge within the time-limit of twomonths from their notification. 442. The plea is therefore inadmissible in so far as it seeks to have the decisionsrequiring information which were addressed to them declared illegal.  The merits of the plea 443. The aim of the powers given to the Commission by Regulation No 17 is to enableit to carry out its duty under the Treaty of ensuring that the rules on competitionare applied in the common market. 444. In the course of the preliminary inquiry procedure, Regulation No 17 does not givean undertaking under investigation any right to refuse to comply with aninvestigative measure on the ground that evidence that it had infringed the rules on competition might thereby be obtained. On the contrary, it places theundertaking under a duty of active cooperation, which means that it must beprepared to make any information relating to the object of the inquiry available tothe Commission (Orkem, paragraph 27; Case T-34/93 Société Générale vCommission [1995] ECR II-545, paragraph 72). 445. In the absence of any right to silence expressly granted by Regulation No 17, it isnecessary to consider whether certain limitations on the Commission's powers ofinvestigation are nevertheless implied by the need to safeguard the rights of thedefence, which the Court has held to be a fundamental principle of the Communitylegal order (Orkem, paragraph 32). 446. In that connection, whilst it is true that the rights of the defence must be observedin administrative procedures which may lead to the imposition of penalties, it isnecessary to prevent those rights from being irremediably impaired duringpreliminary inquiry procedures which may be decisive in providing evidence of theunlawful nature of conduct engaged in by undertakings (Orkem, paragraph 33;Société Générale, paragraph 73). 447. However, in order to ensure the effectiveness of Article 11(2) and (5) ofRegulation No 17, the Commission is entitled to compel an undertaking to provideall necessary information concerning such facts as may be known to it and todisclose to it, if necessary, such documents relating thereto as are in its possession,even if the latter may be used to establish, against it or another undertaking, theexistence of anti-competitive conduct (Orkem, paragraph 34; Case 27/88 Solvay;Société Générale, paragraph 74). 448. The recognition of an absolute right of silence, as argued for by the applicants,would go beyond what is necessary to preserve the defence rights of undertakingsand would constitute an unjustified hindrance to the Commission in theaccomplishment of its task under Article 89 of the Treaty of ensuring compliancewith the competition rules in the common market. The Court would point out, inparticular, that both in their replies to the requests for information and in theadministrative procedure which follows where, in appropriate cases, theCommission decides to open that procedure, undertakings have every opportunityto put their point of view, especially concerning the documents which they mayhave been led to produce or replies which they may have given to theCommission's questions. 449. The Commission may not, however, by a decision to request information,undermine the undertaking's defence rights. Thus it may not compel an undertakingto provide it with answers which might involve an admission on its part of theexistence of an infringement which it is incumbent upon the Commission to prove(Orkem, paragraphs 34 in fine and 35; Case 27/88 Solvay; Société Générale,paragraph 74). 450. It is within the limits thus restated that the applicants' arguments must be assessed. 451. In this case it is, to start with, undisputed that the questions contained in thedecisions requiring information and which are challenged by the applicants in thispart of the plea are identical to those annulled by the Court of Justice in Orkemand Case 27/88 Solvay. These questions are therefore likewise unlawful. 452. However, as the Commission has emphasised, the file shows that the undertakingseither refused to answer those questions or denied the facts on which they werebeing thus questioned. 453. In those circumstances, the illegality of the questions does not affect the legality ofthe Decision. 454. In fact, the applicants have not identified any answer given specifically to thosequestions, or indicated the use made of those answers by the Commission in theDecision. 455. Secondly, an undertaking is not under an obligation to reply to a request forinformation under Article 11(1) of Regulation No 17, as opposed to decisionsrequiring information. 456. In those circumstances, the undertakings are free to reply or not to the questionsput to them under that provision. That conclusion is not affected by the fact thata penalty is stipulated in the first part of the sentence of Article 15(1)(b) ofRegulation No 17. Such a penalty applies only where, having agreed to reply, theundertaking provides inaccurate information. 457. Therefore, by making requests for information under Article 11(1) of RegulationNo 17, the Commission cannot be regarded as compelling an undertaking toprovide it with answers which might involve an admission on its part of theexistence of an infringement which it is incumbent upon the Commission to prove. 458. Thirdly, as regards the specific argument by Enichem, compliance by theCommission with the prohibition against compelling undertakings to provideanswers which might involve an admission of the existence of an infringement maybe assessed only by reference to the nature and content of the questions which areput, and not in relation to the evidence which the Commission previously held.Moreover, in Hoechst, which concerned a decision to investigate similar to thoseaddressed to the other PVC producers, the Court of Justice concluded that thatdecision contained the essential indications prescribed by Article 14(3) ofRegulation No 17. In particular, it emphasised that the decision at issue referredin particular to information suggesting the existence and application of agreementsor concerted practices between certain PVC producers capable of constituting an infringement of Article 85 of the Treaty (Hoechst, paragraph 42). In thosecircumstances, Enichem's argument cannot be accepted. 459. Therefore, the plea must be dismissed in its entirety. (c) Infringement of Article 20(1) of Regulation No 17 Arguments of the parties 460. LVM, DSM, ICI, Hüls and Enichem note that under Article 20(1) of RegulationNo 17 information acquired under statutory powers may be used only for thepurpose for which it was requested (Dow Benelux, paragraphs 17 and 18, and, onrelated questions, Case C-67/91 Dirección General de Defensa de la Competencia vAsociación Española de Banca Privada and Others [1992] ECR I-4785, paragraphs35 to 39 and 42 to 54, and Case C-60/92 Otto v Postbank [1993] ECR I-5683,paragraph 20). 461. Therefore, although the Commission may use information gathered in the contextof an inquiry as evidence in assessing whether it is appropriate to open anotherinquiry (Dow Benelux, paragraph 19), it cannot use that information as proof of thatnew infringement (Asociación Española de Banca Privada, paragraph 42), for whichother means of proof must be found. 462. In the investigation which led to the adoption of Commission Decision 86/398/EECof 23 April 1986 relating to a proceeding pursuant to Article 85 of the Treaty(IV/31.149  Polypropylene (OJ 1986 L 230, p. 1)) the Commission obtaineddocuments, some of which were subsequently unlawfully used as evidence in thepresent case. More specifically, the documents were so-called 'planningdocuments, the document entitled 'sharing of the burden, attached to Annex 3and Annex 6 of the statement of objections respectively, and a note from ICI of 15April 1981 annexed to the Commission's letter of 27 July 1988. LVM and DSMmaintain that documents of the latter are also at issue. 463. The applicants conclude that by using those documents as evidence in this case theCommission infringed Article 20(1) of Regulation No 17. 464. Enichem argues that in so doing the Commission also infringed Article 14(2) and(3) of Regulation No 17, since in the course of its inquiry into the polypropylenemarket it gathered documents that were outside the scope of its authorisation. 465. The Commission argues essentially that the documents in question were includedin the file on the present case on the basis of authorisations relating to PVC. Therewas nothing therefore to prevent their use in this case. Findings of the Court 466. Before considering the merits of this plea, it is necessary to clarify the facts.  The facts 467. It is common ground, first, that the documents in question were originally obtainedby the Commission in the context of the inquiry into the polypropylene sector, and,secondly, that they were used by the Commission as evidence in the contesteddecision. 468. The file also shows that the Commission requested a fresh copy of the documentsin question in the context of authorisations concerning, mainly, PVC. 469. Thus, as regards the planning documents, the Commission again took copies at thetime of a subsequent investigation, on the strength of an authorisation whichprimarily concerned PVC. 470. As regards Annex 6 to the statement of objections and ICI's note of 15 April 1981,the Commission identified them and requested them a second time at the time ofthe investigation of 23 November 1983, on the basis of an authorisation primarilyconcerning PVC, as is confirmed by a letter from ICI to the Commission of 16March 1984. ICI cannot validly claim that, in that letter, it nevertheless opposed theincorporation of those documents into the PVC file; on the contrary, that letterexplicitly shows that its author voluntarily provided fresh copies of those documentsfor that purpose. 471. As regards DSM's documents, only DSM and LVM have referred to them.However, neither the written material nor the questions at the hearing haveallowed the documents in question to be identified. In any event, the replies ofthose two applicants show, first, that those documents were first obtained by theCommission in the context of the polypropylene matter, and, secondly, that theCommission requested and obtained them once again in December 1983, at thetime of an investigation on DSM's premises on the strength of an authorisationprimarily concerning PVC.  The merits of the plea 472. There is no dispute that, having regard to Articles 14 and 20(1) of Regulation No17, information obtained during investigations must not be used for purposes otherthan those indicated in the authorisation or decision under which the investigationis carried out. That requirement is intended to protect both professional secrecyand the defence rights of undertakings. Those rights would be seriously prejudiced if the Commission could rely on evidence against undertakings which was obtainedduring an investigation but was not related to the subject-matter or purpose thereof(Dow Benelux, paragraph 18). 473. On the other hand, it cannot be concluded that the Commission is barred frominitiating an inquiry in order to verify or supplement information which it happenedto obtain during a previous investigation if that information indicates the existenceof conduct contrary to the competition rules in the Treaty (Dow Benelux, paragraph19). 474. It has been established, moreover (see paragraphs 467 to 471 above), that theCommission did not merely introduce into this case of its own motion documentswhich it had obtained in another case, but requested those documents again in thecontext of authorisations to investigate which primarily concerned PVC. 475. Having regard to those factors, the plea appears to be limited to the questionwhether the Commission, having obtained documents in one matter and used themas evidence to open another proceeding, is entitled, on the basis of authorisationsor decisions concerning that second proceeding, to request fresh copies of thosedocuments and then use them as evidence in the second matter. 476. Since the Commission obtained those documents anew on the specific basis ofauthorisations or decisions directed primarily at PVC, in accordance with Article14 of Regulation No 17, and used them for the purpose indicated in thoseauthorisations or decisions, it observed the rights of defence afforded toundertakings under that provision. 477. The fact that the Commission once obtains documents in a given matter does notconfer such absolute protection that those documents cannot be requested understatutory powers in another matter and used as evidence. Were it otherwise, as theCommission has emphasised, undertakings would have an incentive, when a firstmatter is investigated, to give all the documents providing evidence of anotherinfringement, thereby forearming themselves against any prosecution in thatrespect. Such a solution would go beyond what is required to safeguard professionalsecrecy and the rights of the defence and would thus constitute an unjustifiedhindrance to the Commission in the accomplishment of its task of ensuringcompliance with the competition rules in the common market. 478. In the light of all those considerations the plea must be dismissed. (d) Inadmissibility as evidence of the refusal to reply to requests for informationor to produce documents Arguments of the parties 479. Elf Atochem and BASF deny that the Commission may use as evidence ofinfringement or their participation in it the fact that they did not reply to requestsfor information or did not produce documents, particularly in view of the fact thatthere were objective reasons justifying the refusals. 480. The Commission maintains that there is nothing in the decision to support such anallegation. Findings of the Court 481. In examining this plea, it is necessary to distinguish between proof of theinfringement and proof of the participation of undertakings in it.  Proof of the infringement 482. Whilst it is true that the Commission refers, directly or indirectly, to the refusal ofthe undertakings to reply to certain questions (Decision, point 6, in fine; point 8,in fine; point 9, third paragraph; point 14, first paragraph; point 16, first paragraph;point 18, first paragraph; point 20, third and fourth paragraphs; point 26, third andfifth paragraphs; point 37, second paragraph), it did not at any point in theDecision use that fact as proof of infringement. 483. In fact it confined itself in those points to indicating that, having been unable toobtain the information requested from the undertakings, it had to rely on otherevidence in order to prove the infringement and, in particular, make a moremarked use of deductions in the light of the information it did possess. 484. This part of the plea is therefore unfounded.  Proof of participation in the infringement 485. Since the only question at issue is that of the undertakings' participation in thealleged agreement, an applicant may not challenge the evidence used to establishother undertakings' participation in the infringement. Examination of the plea istherefore limited to determining whether, against each of the applicants ICI andElf Atochem, the Commission has used, as proof of their participation, their refusalor inability to reply to requests for information. 486. Although the applicants were not able to identify the extracts from the Decisionshowing that their refusal to reply to requests for information from the Commissionwas held to constitute proof of their participation in the alleged infringement, it isstated at the end of the first paragraph of point 26 of the Decision that 'the Commission has also considered the role played by each producer and the evidenceof the participation of each in the cartel. Full particulars were supplied to eachproducer in the course of the administrative procedure. 487. Those particulars include the documents entitled 'Individual Particulars, whichwere annexed to the statement of objections. 488. In the case of Elf Atochem, under the heading 'Main proofs of participation in theinfringement, that document indicates: '[The undertaking] refuses to provide anyinformation under Article 11 of Regulation No 17 concerning its participation [inthe] meetings. 489. The refusal to reply to requests for information, or the impossibility of replying tothem, cannot in itself constitute proof of an undertaking's participation in anagreement. 490. In order to assess Elf Atochem's participation in the agreement, it is thereforenecessary to leave that circumstance found by the Commission out of account. 491. No similar mention appears in the 'Individual Particulars concerning ICI.Therefore, in the absence of any indication that the Commission used thatundertaking's refusal or inability to reply to requests for information as proof ofparticipation in the agreement, the plea, in so far as it is made by ICI, must bedismissed as unfounded. (e) Failure to communicate documents Arguments of the parties 492. Wacker and Hoechst argue first that the extracts from the trade press, althoughreferred to in the list of annexes to the statement of objections, were not annexedthereto and could not therefore be used against them. Secondly, they argue thatICI's note of 15 April 1981, relied upon by the Commission, was neither mentionedin nor annexed to the statement of objections. At the reply stage, they maintainthat that note was never sent to them. 493. Hüls maintains that ICI's note of 15 April 1981 cannot be regarded as admissibleevidence because it was not annexed to the statement of objections. 494. It further argues that Annex 15 to the statement of objections, concerning sales bythe four German producers during the first quarter of 1984 and during the wholeof that year should be removed from the proceedings, since it was drawn up on thebasis of factors which were not disclosed (AEG, paragraph 30). 495. The Commission maintains that the extracts from the trade press were annexed tothe statement of objections. Moreover, even if ICI's note of 15 April 1981 was notannexed to the statement of objections, it was sent to the parties on 28 July 1988.No consequences can therefore be drawn concerning the legality of the Decision.Finally, in so far as the plea by Wacker and Hoechst is based on failure tocommunicate that document, the Commission maintains that the plea isinadmissible under Article 48(2) of the Rules of Procedure. Findings of the Court 496. First, it appears that the extracts from the trade press did form part of thestatement of objections (special annex entitled 'Known Price Initiatives).Furthermore, even if Wacker and Hoechst did not receive them, they were by theirnature public documents. In those circumstances failure to communicate thosedocuments, even if it were established, cannot affect the legality of the Decision. 497. Secondly, there is no provision which prevents the Commission from sending theparties after the statement of objections fresh documents which it considers supportits argument, subject to giving the undertakings the necessary time to submit theirviews on the subject (AEG, paragraph 29). Therefore, the fact that a document wasneither mentioned in the statement of objections nor annexed thereto cannot itselfaffect the legality of the Decision. Nor do the applicants maintain, moreover, thatafter the Commission had sent them a copy of that document by letter of 27 July1988, indicating its relevance with regard to the alleged quota mechanism, theywere not in a position effectively to put forward their views in that respect. In fact,they had the opportunity to submit observations both orally and in writing. 498. Thirdly, in so far as the plea is based on the fact that that document was never sentto Wacker and Hoechst, it is a new plea raised at the reply stage. In the absenceof indications that it is based on matters of fact and law that arose during theproceedings, it must be declared inadmissible under Article 48(2) of the Rules ofProcedure. 499. Fourthly, Annex 15 to the statement of objections does not constitute proof in itsown right, but sets out, albeit in summary form, the calculations which theCommission made in support of its conclusions from Annex 10. Those conclusionswere fully set out in the statement of objections, and the applicant was able tomake its observations in respect of them at the appropriate time. Therefore, evenif Annex 15 were inadmissible for failure to contain sufficient information, it wouldin any event be for the Court of First Instance to check the merits of theconclusions drawn by the Commission at point 14 of its Decision from Annex 10to the statement of objections. 500. The plea must therefore be dismissed. (f) Late communication of documents Arguments of the parties 501. BASF maintains that Annex 3 to the statement of objections, which constitutes adecisive incriminating document, was not communicated to the company in itsentirety until the hearing on 6 September 1988. Despite the request made at thathearing, the applicant did not therefore have the opportunity to give its views onthe subject, contrary to Articles 3, 4 and 7 of Regulation No 99/63. 502. The Commission maintains that this plea does not concern Annex 3 itself, but theillegible handwritten annotations that were made thereto. It considers that theapplicant had sufficient knowledge of those annotations. Findings of the Court 503. It is not disputed that the documents constituting Annex 3 to the statement ofobjections were annexed to that communication, as sent to the applicant on 5 April1988. The plea is therefore limited to the allegedly late communication of thetranscript of the handwritten comments which were made, illegibly, to the fourpages comprising that annex. 504. It is also undisputed that the applicant did not receive a full transcript of thehandwritten notes until 6 September 1988, at the hearing. 505. However, the only handwritten annotation on which the Commission sought to relyin the Decision had been expressly mentioned in the annex to the statement ofobjections concerning the known price initiatives. It follows that the applicant hadevery opportunity to put forward its observations in that respect. 506. The plea must therefore be dismissed. 507. In the light of all those considerations the pleas concerning inadmissibility of theproof relied on by the Commission against the applicants must be dismissed, subjectto paragraph 490 above. 2. The adducing of evidence 508. The applicants' arguments in this respect comprise two pleas, or series of pleas.First, they challenge the probative value of certain types of document used againstthem by the Commission. Secondly, they accuse the Commission of infringing theprinciples concerning the adducing of evidence. (a) The plea that certain types of evidence used by the Commission lackedprobative value Arguments of the parties 509. LVM and DSM argue that, in accordance with the principles of criminal procedurein the Netherlands and the right to a fair hearing under Article 6 of the ECHR(judgment of the European Court of Human Rights of 20 November 1989 inKostovski v Netherlands, Series A, No 166, paragraphs 39 and 44 and, indirectly,Case T-4/89 BASF v Commission [1991] ECR II-1523, paragraphs 64 to 72, andCase T-6/89 Enichem Anic v Commission [1991] ECR II-1623, paragraphs 69 to 73),the proof of incriminating facts may not be exclusively based on statements of theaccused, or on the statements of other accused undertakings, which must inprinciple be regarded as suspect, so that they must not be used otherwise thanagainst those who made them, or, finally on 'unofficial statements in writing, thetrustworthiness and authenticity of which are uncertain by nature. 510. In this case, therefore, in so far as the Decision is based exclusively on suchdocuments, without the support of evidence admissible in law, the applicants arguethat it should be annulled. 511. The Commission objects that the provisions of Netherlands criminal law and theunacceptably broad interpretation of the Kostovski judgment, cited above, are notrelevant to the application of Community competition rules. They would depriveArticles 11 and 14 of Regulation No 17 of all practical effect. Findings of the Court 512. In the first place, there is no general principle of Community law which prohibitsthe Commission from using information and documents such as those referred toby the applicants. Secondly, if the applicants' argument were to be accepted, theCommission's burden of proving conduct contrary to Articles 85 and 86 of theTreaty would be unsustainable and incompatible with the task of supervising theproper application of those provisions which is entrusted to it by the Treaty. 513. In particular, the applicants are mistaken in relying, in support of their argument,on the judgments in T-4/89 BASF and Enichem Anic, cited above. What thegrounds of those judgments as cited by the applicants actually show is that, far fromregarding the statements of undertakings as devoid of probative value in principle,the Court of First Instance concluded that, in the cases before it, the documentsrelied on did not have the meaning and scope attributed to them by theCommission. 514. In those circumstances, the pleas relied upon by the applicants cover the sameground as the question whether the Commission's factual findings are supportedby the evidence which it has produced. (b) Infringement of the rules on adducing evidence Arguments of the parties 515. LVM, Elf Atochem, BASF, DSM, Wacker, Hoechst and ICI maintain, in thecontext of specific pleas, that the Commission has infringed the principle of thepresumption of innocence and the burden of proof to which it is subject. 516. They argue that the presumption of innocence guaranteed by Article 6 of theECHR constitutes a general principle of Community law and applies in all respectswhen implementing Articles 85 and 86 of the Treaty (ACF Chemiefarma, paragraph153; Case 6/72 Europemballage and Continental Can v Commission [1973] ECR 215;Joined Cases 40/73 to 48/73, 50/73, 54/73, 55/73, 56/73, 111/73 and 114/73 SuikerUnie and Others v Commission [1975] ECR 1663, paragraph 301; Joined Cases29/83 and 30/83 CRAM and Rheinzink v Commission [1984] ECR 1679; T-4/89BASF, paragraphs 70 and 71; Enichem Anic, paragraph 70). 517. Therefore, whatever practical difficulties the Commission might encounter inadducing evidence, the burden of proving an alleged infringement rests with it, asthe counterpart to the wide powers of inquiry which are granted to it (Hoechst andDow Benelux, cited above). 518. For that purpose, the Commission cannot restrict itself to assertions, suppositionsor inferences. It must refer to serious, precise and consistent evidence (see forexample Europemballage and Continental Can, paragraphs 31 to 37, United Brands,paragraphs 264 to 267, and Suiker Unie, paragraph 166; Opinion of AdvocateGeneral Sir Gordon Slynn in Musique Diffusion Française, at p. 1914, and JoinedCases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307); moreover, theremust be a direct causal link between the facts and the conclusions that are drawnfrom them, which must be reasonably and objectively free of doubt (Case 56/65Société Technique Minière (LTM) v Maschinenbau Ulm [1966] ECR 235, at pp. 248and 249). 519. Conversely, the undertakings accused of an infringement of Article 85 of the Treatymust be given the benefit of the doubt. In addition, they do not necessarily haveto go so far as to show that the Commission's assertions are wrong, but merelyhave to show that they are unsafe or insufficiently proven (Opinion of AdvocateGeneral Sir Gordon Slynn in Musique Diffusion Française, at p. 1931). Otherwise,the undertakings would be faced with an unlawful reversal of the burden of proof; they would be required to adduce negative proof of their non-participation and theagreement and thus be faced with the 'probatio diabolica. 520. In this case, the Commission infringed those principles and rules. 521. In the submission of LVM and DSM, far from relying on established facts, theCommission contented itself with what it refers to as indirect evidence, but whichare in reality merely assertions, suppositions and inferences (for example, points 9,16, 20 and 23 of the Decision). 522. In this case, Elf Atochem submits, the Commission, which recognised the weaknessof its evidence (points 31 and 38 of the Decision), proved neither the accuracy ofthe data on which its analysis was based nor the merit of its assessments. In reality,it postulated the existence and, on the strength of meetings between certainproducers as to the subject-matter of which it admits that it had no information, theimplementation of an overall plan based on proposals of 1980 discovered at ICI.However, it was not able to prove either the participation of each producer in whatit called 'joint initiatives or a single will on the part of the undertakings it accusesof committing an infringement together. 523. BASF argues that the Commission's method of adducing evidence constitutes avicious circle. First, it presumed that the items of evidence produced had a certaincontent and then it used those same items to prove that they had the preconceivedcontent attributed to them. In BASF's submission, that led to an unacceptablereversal of the burden of proof. It was equally unacceptable to maintain that theabsence of incriminating documents, concerning meetings between producers forexample, might serve to create a presumption of guilt. The absence of documentswas, moreover, inevitable, bearing in mind the number of years which had elapsedbetween the first investigation and the statement of objections. 524. Wacker and Hoechst maintain that, through wrongful use of circumstantialevidence, the Commission infringed the rules on adducing evidence. Its reasoningconsisted in deducing the existence of the underlying agreement on the basis of theexistence of the implementing measures, and vice versa, but without everdemonstrating the existence of one or the other. 525. In SAV's submission, while the Commission acknowledged that it lacked essentialmaterial in proving the participation of certain undertakings, including theapplicant, in the agreement, that evidence was deduced, in respect of eachparticipant, from its adherence to 'the agreement considered as a whole. Inreality, the Commission merely deduced the participation of all the undertakingsfrom the fact that some of them participated (point 25 of the Decision). In fact, thethree items of evidence purportedly establishing SAV's individual participation haveno probative value. 526. ICI argues that the evidence in this case is insufficient to justify the Commission'sfactual allegations. That applies, for example, to the object of the meetings and thecommitments allegedly made by producers on those occasions (point 9, third andfourth paragraphs, of the Decision), to the implementation of any scheme relatingto 'volume and prices, to the conclusion that the prices resulted fromconcertation, or to any causal link between the planning documents and theCommission's subsequent findings of fact (points 24, second paragraph, and 30,second paragraph, of the Decision). 527. In any event, those factual allegations did not warrant the legal conclusions drawnfrom them by the Commission as regards either the existence of an agreement orconcerted practice or the effect on trade between Member States (United Brands,paragraphs 248 to 267; Opinion of Advocate General Sir Gordon Slynn in MusiqueDiffusion Française, pp. 1930 and 1931). 528. Hüls maintains that, without explanation, the Commission described in its Decisionas a certainty that which, in its letter of 24 November 1987 asking the applicant forinformation, consisted as yet of mere probabilities. In reality, since the request forinformation, the Commission had had the preconceived idea that the applicant hadinfringed Article 85 of the Treaty. 529. The Commission replies essentially that it has not disregarded the burden of proofto which it is subject. It considers that it had sufficient evidence to find aninfringement (point 23 of the Decision). Any inaccuracy in that assertion is a mattergoing to the substance of the case. The Commission notes in particular that the useof indirect evidence is permissible (see, in particular, Case 48/69 ICI, paragraphs64 to 68, CRAM, paragraphs 16 to 20, and Ahlström Osakeyhtiö, paragraph 71).That was in any case indispensable bearing in mind the growing awareness inEuropean business circles of the scope of competition law. Moreover, items ofevidence should be regarded not in isolation but in their entirety (Case 48/69 ICI,paragraph 68, and Ahlström Osakeyhtiö, paragraph 163), and individual items ofevidence cannot be divorced from their context (SIV, paragraphs 91 to 94). Findings of the Court 530. Examination of the present plea forms part and parcel of the plea, raised by thesame applicants in particular, alleging obvious errors by the Commission inassessing the facts when establishing both the existence of the infringement and theparticipation of the undertakings in it. 531. Analysis of this plea must therefore be postponed, in order to examine it togetherwith other substantive pleas. B  The denial of the existence of an infringement of Article 85(1) of the Treaty 532. All the applicants challenge the Commission's assessment of the facts. Only SAVclaims to be denying only its participation in the alleged agreement, arguing thatit was unaware of it. However, in order to demonstrate that it did not take part inthe agreement, it also disputes, at least in part, the facts found by the Commission.Those objections are therefore examined under this heading. 533. The applicants also criticise the Commission's legal assessment of the facts. 534. The Court will examine the factual and legal objections in turn. 1. Facts Brief recapitulation of the Decision 535. In the first part of the Decision, headed 'The Facts, the Commission began, in aninitial introductory subsection, by identifying the undertakings concerned by theDecision and supplying certain information concerning, inter alia, the product inquestion, the PVC market and the overcapacity in that sector. 536. In a second subsection, it went on to describe the infringement, examining in turnthe five following aspects: the origin of the agreement (point 7 of the Decision), themeetings between producers (points 8 and 9), the system of quotas (points 10 to14), the monitoring of sales in national markets (points 15 and 16) and the targetprices and price initiatives (points 17 to 22). 537. As to the origin of the agreement, the Commission effectively relies on twodocuments found at ICI's premises, attached as Appendix 3 to the statement ofobjections (hereinafter jointly referred to as the 'planning documents). The firstof those documents, headed 'Checklist, and the second, headed 'Response toProposals, amount, in the Commission's submission, to a blueprint for a cartel. 538. In respect of the meetings between producers, the Commission referred inparticular to the replies of certain producers to requests for information sent outby the Commission during the preliminary administrative procedure. 539. As regards quota mechanisms, the Commission described the alleged facts on thebasis of various documents. It thus referred to three documents, formingAppendices 6, 7 and 9 to the statement of objections, which, in its submission, showthat the PVC producers established between themselves a compensationmechanism designed to reinforce a scheme of quotas. The first document, entitled'Sharing the pain, is a handwritten document found on ICI's premises, the seconda document emanating from ICI but found on the premises of an external producer ('the Alcudia document) and the third an internal document of DSM ('the DSMdocument) found on its premises. The Commission also relied on two otherdocuments, namely a note of 15 April 1981 found on ICI's premises andtranscribing the message from the managing director of Montedison's petrochemicaldivision ('the note of 15 April 1981) (sent by the Commission to the applicantsby letter of 27 July 1988) and a table found on Atochem's premises ('the Atochemtable) (Appendix 10 to the statement of objections). 540. For the sales monitoring mechanisms, whereby the 'home producers in certainmajor national markets had informed each other of the tonnages they had sold inthose markets, the Commission relied primarily on a series of tables found atSolvay's premises ('the Solvay tables) attached as Appendices 20 to 40 of thestatement of objections. It also referred to Solvay's replies of 25 February 1988 andShell's replies of 3 December 1987, to requests for information. Those replies wereattached to the statement of objections, as Appendices 41 and 42 respectively. 541. As regards the price initiatives, the Commission relied on internal documents ofseveral PVC producers, attached as Appendices P1 to P70 of the statement ofobjections, and on extracts from the trade press concerning the period from 1980to 1984, annexed without numbering to the statement of objections. 542. Finally, in a third subsection, the Commission made certain observations withparticular reference to the evidence for the existence of the cartel (points 23 and24 of the Decision). It states: 'It is inherent in the nature of the infringement withwhich the present case is concerned that any decision will to a large extent have tobe based upon circumstantial evidence: the existence of the facts constituting theinfringement of Article 85 may in part at least have to be proved by logicaldeduction from other proven facts (point 23). Having listed the main items ofevidence which it considered it held, the Commission emphasised that 'the variousitems of direct and circumstantial evidence in the present case must be consideredtogether ... . Taken in this light, each element of proof reinforces the others withrespect to the facts in issue and leads to the conclusion that a market-sharing andprice-fixing cartel was being operated in PVC (point 24 of the Decision). Arguments of the applicants 543. The applicants maintain that the Commission has not succeeded in establishing thefacts whose existence it alleges.  The origin of the cartel 544. In the applicants' submission, the planning documents have no probative value. 545. First, BASF, DSM, Wacker, Hoechst, Hüls and Enichem argue that it has not beenestablished that those documents concerned PVC; the Commission's sole aim inattaching Appendices 1 and 2 to the statement of objections was to give theimpression that the planning documents contained in the next appendix related tothat sector. 546. Secondly, BASF and Enichem argue that it has not been established that thosedocuments concerned markets other than the British market. 547. Thirdly, BASF, DSM, Wacker, Hoechst, SAV, Hüls and Enichem argue that theResponse to Proposals does not constitute a response to the Checklist. The firstdocument was later than the second, and the subjects referred to in the Responseto Proposals bore no relation to those referred to in the Checklist. Neitherdocument did so much as refer to the other, and the fact that they were foundattached to each other does nothing to alter the lack of correlation between theirsubject-matter. 548. Fourthly, BASF, DSM, Wacker, Hoechst, SAV, Hüls and Enichem argue that sincethe planning documents were drafted by, and addressed to, unknown persons, thereis nothing to prove that they were not simply expressions of the opinion of variouspersons within ICI, or that they were sent to or brought to the knowledge of otherundertakings. 549. Fifthly, the applicants maintain that there is no evidence of any link between thosedocuments and the later restrictive practices which the Commission claims to haveestablished. 550. Finally, in the submission of BASF and DSM, even though the Checklist refers,without any further detail, to a meeting on 18 September 1980, the Commission hasnot established that that meeting took place, or that it was not simply an internalICI meeting, or that its purpose was to examine the Checklist, or even that it hadany results.  The meetings between producers 551. BASF notes that neither the date nor the place of the meetings has been stated. 552. With the exception of Shell, the applicants argue that the Commission has notestablished that those meetings had an anti-competitive aim. In deducing from thereplies by the undertakings to the requests for information that the meetings hadan unlawful aim, the Commission misconstrued those replies; what they actuallyshowed was that the discussions between producers concerned trends in the PVCmarket in general. That explanation was perfectly plausible, given the crisis in thesector and the number of documents confirming the competitive nature of the market. In BASF's submission, the absence of minutes for those meetings does notwarrant the Commission's conclusion that they were unlawful. 553. LVM, BASF, DSM and Enichem maintain that there is nothing to link themeetings between producers with the alleged overall plan. Hüls argues that thealleged anti-competitive aim of the meetings cannot be established on the basis ofthe planning documents in any event, since they have no probative value.  The quota and compensation mechanisms 554. The applicants deny that the documents cited by the Commission have probativevalue. 555. They repeat their argument that the planning documents cannot be relied on by theCommission (see above, paragraph 544 et seq.). 556. Secondly, BASF, Wacker, Hoechst and Hüls maintain that as 'Sharing the painand the 'Alcudia document do not concern PVC and were drafted by personsoutside that sector, the opinions of those persons, being based on fragmentaryinformation and rumours, could not constitute proof of infringement. 557. Neither of the documents established that a compensation mechanism actuallyexisted and was put into operation. Moreover, the Alcudia document was marked'draft. In addition, ICI had stated in its reply of 9 October 1987 to a request forinformation that such a system had never been put into operation. 558. Thirdly, the DSM document likewise lacked probative value. 559. DSM, BASF and Hüls maintain that it was merely an internal market study,comparing global statistics under the Fides system with DSM's own sales. In DSM'ssubmission, the word 'compensation in that document referred only tocompensation for earlier inaccurate information from Fides. A compensationmechanism as understood by the Commission would be pointless in any casebecause demand for PVC had risen by 12% in the first half of 1982 by comparisonwith the first half of 1981. 560. Wacker and Hoechst argue that the DSM document has been extracted from alarger document, and should not therefore be read in isolation. 561. Finally, BASF argues that the Commission has not established a single case ofcompensation between producers; implementation of such a mechanism, thedetailed rules for the functioning of which have not been established, has nottherefore been proved. Deliveries of minimal quantities from producer to producer,in order to deal with bottlenecks, cannot be classed as compensations. 562. Fourthly, the applicants maintain that the Atochem table has no probative value. 563. Elf Atochem states that although that document was discovered on the premisesof Atochem it comes in fact from outside that undertaking and was found in theoffice of a person without operational responsibility, amongst files of generalstudies unrelated to PVC. 564. BASF adds that since that document was presumed to be dated 1984, it was drawnup after the event, which would make no sense in a quota system. Wacker andHoechst maintain that the origin of the figures given in that document is unknown;they might in any case derive from public information. 565. BASF, Wacker, Hoechst and Hüls maintain that the Commission merely speculatedthat the abbreviation '%T on the Atochem table was a reference to a target; infact, the figures for German producers corresponded exactly to the proportionrepresented by their production capacity, so that '%T could mean percentage oftotal capacity. 566. LVM, BASF, DSM and Enichem observe, moreover, that the actual sale tonnagesdo not correspond to the tonnages expressed in the Atochem table, thus supportingthe idea that the figures are only individual estimates. In reality, the Commissionhad actual sales figures for only three of the thirteen undertakings, and only six ofthe eleven figures relating to those three undertakings corresponded to actual salesfigures. 567. As regards the German producers, in particular, BASF, Wacker, Hoechst and Hülsargue that their sales were aggregated, making it impossible to identify theindividual producers and their sales, a finding incompatible with the existence ofa quota mechanism. Moreover, comparison of those alleged targets with Hoechst'sactual sales figures, as drawn up and certified by a firm of accountants in October1988, showed significant differences, of the the order of 5%. 568. Fifthly, BASF disputes the relevance of the documents on which the Commissionrelies to support its analysis of the Atochem table. 569. Thus, Appendices 13 to 16, concerning statistics on actual sales volumes, simplyshowed that the declarations made by the producers to the Fides system wereaccurate. Appendices 17 and 19 were merely internal documents, referring to salesobjectives fixed by the undertakings themselves; Appendix 18 contra-indicated theexistence of a quota system, since it contained a prediction by ICI of a decline inits market share for the months to come. 570. Sixthly, Wacker, Hoechst and Hüls argue that ICI's note of 15 April 1981 is equallydevoid of probative value. Not only does it not concern PVC but its meaningremains obscure.  The monitoring of sales in national markets 571. In the first place, Hüls maintains that the Solvay tables are by their nature lackingin probative value. They were drawn up only subsequently, on the basis ofinformation of unknown origin, for the purpose of establishing market studies. Theycould amount, at most, to mere hypotheses as to the future direction of turnoverfigures, which never materialised the following year, and estimates, as the roundedfigures show. Being drafted in French, and not in English, they could only beinternal Solvay documents. 572. Secondly, LVM observes that the Solvay tables would only have probative value ifthey were accurate, whereas, in fact, they differed significantly from actual sales.The Commission took account of provisional data supplied to Fides, and not ofdefinitive Fides figures, which alone reflected actual sales. Bearing in mind loadingand delivery dates, differences might exist. In relation to the German producers,moreover, Wacker and Hoechst point out that the Solvay tables do not contain anyitemised data, but only overall figures. 573. Thirdly, Hüls maintains that the overall figure for PVC sales on the Germanmarket (Appendix 20 to the statement of objections), even if it accords withstatements by Fides, should not, in accordance with the rules of the Fides system,include deliveries to Dynamite Nobel AG; such an error shows that the figuresappearing in Appendix 20 do not reflect the Fides system. 574. Fourthly, LVM, BASF, DSM, Montedison and Enichem accuse the Commission ofasserting without proof that precise sales figures could not have been obtainedwithout a volontary exchange between the producers. On the contrary, Solvay hadexplained that it alone had drawn up, for internal purposes, the statisticaldocuments on which the Commission bases its accusation. Using examples, DSMchallenges the Commission's conclusion that a precise assessment of the marketshares of each producer could not be obtained without an exchange of informationbetween them. In fact, merely on the basis of easily accessible information, eachundertaking could have made precise estimates of its competitors' sales without anyunlawful exchange of information. BASF emphasises that the very concept of anexchange implies a reciprocity between undertakings, which is precisely not whatis being alleged. In Enichem's submission, even if a note referring to the table inAppendix 34 (and to that alone) mentions data exchanged with colleagues, it is notstated who those colleagues are; given the aggressive policy of the applicant, it canonly refer to work colleagues within Solvay, and not to the applicant. In any event,these were exchanges of past data, and not forecasts. 575. Finally, BASF and Shell maintain that the Commission misconstrued Shell's replyto a request for information. In the first place, Shell indicated that no preciseinformation had been given to Solvay; any such communication concerned western European sales and could not therefore be the source for the data in the Solvaydocuments, which contained a country by country breakdown. Secondly, any suchinformation was given only occasionally between January 1982 and October 1983,whereas the Solvay documents covered the period from 1980 to 1984. Those factsconfirm, in the applicants' submission, that the information in the Solvay documentswas obtained only from officially published statistics and contacts with customers.  The price initiatives 576. BASF, Wacker, Hoechst and Montedison reiterate their argument that the planningdocuments have no probative value (paragraph 544 et seq.). 577. In the submission of LVM and DSM, the existence of target prices wasinconceivable in the PVC market, where prices were negotiated in each individualcase. 578. LVM, DSM, Wacker and Hoechst argue that Appendices P1 to P70 to thestatement of objections have no probative value because they concern internalreports of undertakings drawn up subsequently. 579. In any event, according to LVM, BASF, DSM, Wacker, Hoechst, Montedison, Hülsand Enichem, those appendices do not support the conclusion that the initiativesto which objection is made were concerted; in reality, they were simply the resultof independent decisions of the undertakings, which were merely adaptingintelligently to market conditions. 580. Finally, the applicants maintain that Appendices P1 to P70 and the documents sentto them by the Commission on 3 May 1988 revealed, on the contrary, a competitivemarket in which, in particular, prices changed rapidly and frequently and certainproducers took an aggressive line. 581. In their submission, extracts from the trade press could constitute neither evidencenor even an indication of infringement. They were therefore not sufficient tosupport the Commission's argument. Findings of the Court 582. In establishing the origin of the cartel, the Commission relied on the wording of theplanning documents, the information given by ICI concerning those documents inresponse to a request for information, and the close correlation between thepractices envisaged in those documents and the practices witnessed on the market. 583. In those circumstances, the Court's first task is to examine the various marketpractices which the Commission considers it has proved and compare them with thepractices envisaged in the planning documents.  The quota system 584. The first planning document, the Checklist, announces in section 3 'Proposals fora new framework of meetings. That section, after listing in the form of initials oracronyms the names of certain prospective participants at such meetings, includesa subsection on 'Proposals on how these meetings will operate which in turnrefers to: 'producers' percentage shares, and variations permitted about these and'arrangements for loading new capacity. 585. The second planning document, the Response to Proposals, refers in section 2 tothe proposal that 'In future, tonnage quotas should be on a company and not ona national basis together with the following commentary: 'Strongly supported, but,to be realistic and workable, a future quota system must include an agreed formulafor the loading of new capacity and of plants that have been restarted after beingclosed temporarily. In section 3, the same document contains the followingproposal: 'The market share of producers should be based on their achieved 1979position, with correction of any flagrant anomalies in that year, with the followingcommentary: 'Fully supported. Finally, section 4 makes the following proposal:'A flexibility of plus or minus 5% should be applied to the market sharesestablished under 3 above, so that the actual market positions of producers can intime evolve to reflect the real potential of each, together with the followingcommentary: 'A lot of doubt about this, mainly based on the fact that, if producers'market shares are to be defined, it would be dangerous to build in a licence toexceed the agreed share. 586. In order to establish the existence of a quota mechanism, the Commission refersin its Decision to various documents of which it was able to obtain copies duringits investigations. 587. It has thus relied on three documents in particular, which it claims establish theexistence of a compensation mechanism operated between PVC producers in 1981,and which testify to the existence of quota mechanisms of which it was only thecorollary. 588. The document 'Sharing the pain, found on ICI's premises, relates mainly to asystem for sharing the burden of reductions in sales of a thermoplastic productother than PVC. However, it contains the following observations: 'Experience withsimilar schemes on PVC and LDPE does not augur well, but certain lessons can belearned. After the heading: 'Target quantity, the author of the documentcontinues: 'What would performance be monitored against? PVC [producers] were able to work on agreed market shares for 1981. Finally, the document states: 'ThePVC scheme only allowed for adjustment if a company's or a group of companies'sales fell below 95% of target. This allows companies to creep up in marketshare at no penalty. 589. The Alcudia document, which emanated from ICI but found with a Spanishproducer, outlines a draft scheme for a compensation mechanism between thoseLDPE producers who had sold less than a given share and those who had soldmore. The document states: 'The scheme is very similar to a scheme recentlyintroduced by PVC producers and put into operation for half of May sales andJune sales. The document then describes the essential features of that scheme,being similar to that applied in the case of PVC. Thus, producers were to agree ontheir target sales at a given percentage of the total sales. As soon as the provisionalFides totals became known, tonnage targets were to be calculated for eachparticipating producer and compared with actual sales, and variances to beestablished; compensations were then to be made between those who had oversoldtheir quota and those who had not attained it. For ease of operation, it was alsoproposed that: 'producers [be] grouped in the hope that arrangements within agroup can be made to nullify the variances. An alternative scheme was alsomooted, whereby only variances in excess of 5% would be taken into account. Atthe end of the document, the author compares the proposed scheme for LDPEwith the 'PVC arrangement and comments inter alia: 'Can the scheme beoperated with 2/3 producers outside? PVC have only one outside. 590. The Court considers that the wording of those documents constitutes evidencewhich supports the conclusions which the Commission drew from them. 591. Whilst it is true that both documents concern another thermoplastic product, thefact remains that the extracts cited by the Commission in its decision relateexpressly to PVC. 592. Moreover, the wording of those documents shows that the compensationmechanism in question was in fact put into operation by all but one of the PVCproducers. The Alcudia document, in particular, constitutes a draft only in so faras it concerns the other thermoplastic product in question, namely LDPE. 593. Finally, the objection of the applicants that those documents were not reliablebecause their author was not from the PVC sector cannot be accepted. Both thosedocuments contain precise indications, especially as to dates, percentages and thenumber of participants in the PVC system, which lead to the conclusion that theauthors had an exact knowledge of the mechanism which they were referring to,and from which they intended to draw lessons in the light of 'experience gained. 594. The Commission also refers to the DSM document, dated 12 August 1982. 595. As the Commission notes in the penultimate and final paragraphs of point 11 ofthe Decision, the author of the document points to a significant increase (some12%) in PVC sales in western Europe in the first half of 1982 by comparison withthe first half of 1981, whereas growth in demand in that geographical area hadbeen significantly less; the author also notes significantly different trends betweenone geographical market and another. The author then rejects a number ofexplanations, based on the normal development of the market (reduction ofimports from non-member countries into western Europe, storage and increase inthe level of activity), which were initially put forward (see also, in that respect,Appendix P22 to the statement of objections, which is a DSM document of 12 July1982), and continues: 'Maybe an explanation could be found in a false declarationof sales in the first half of 1981 (compensation!). This item will be investigated. 596. That document thus shows that the movement of the market in the first half of1982 compared with the first half of 1981 could not be explained in terms ofnormal market factors, but rather by false sales declarations for the first half of1981. Those false declarations themselves find their raison d'être in compensationmechanisms between producers. As the Commission found, that document, whichmust be read in the light, inter alia, of the two previously examined and whichreveal the existence of a compensation mechanism during the first half of 1981,establishes that certain producers had doubtless declared sales figures for that half-year which were lower than the reality, in order to avoid being subject to thatmechanism. 597. That document also permits the conclusion that owing to the conduct of certainproducers the mechanism did not function as well as it might. That fits in,moreover, with the document 'Sharing the pain, in which it was stated that'Experience with similar schemes on PVC and LDPE does not augur well. 598. In that context, the alternative interpretation of the term 'compensation proposedby DSM, which is moreover unclear, lacks all credibility. It cannot be accepted thatin order to correct errors in their statements to the Fides system for one yearproducers declared sales the following year including those omitted the previousyear. 599. In order to establish the existence of a quota mechanism, the Commission alsorefers to a note discovered at ICI and dated 15 April 1981. It is the text of amessage sent by the managing director of Montedison's petrochemical division toICI, and contains the follwing extract: 'ICI on PVC for instance might have by theend of 1981 new capacity in Germany and have been asking for a 30 kilotonneincrease in quota since January 1981. As the Commission noted, ICI was at thattime intending to open a new plant in Germany, while closing an old plantelsewhere. 600. That note, even if primarily concerned with another thermoplastic product, relatesin the extract referred to above specifically to PVC. 601. The applicants have been unable, moreover, to offer any interpretation of the term'quota contained in that note other than that adopted by the Commission. Norshould it be forgotten that the note in question is the transcription of a messagefrom a director of a rival company, so that the term 'quota cannot be regardedas referring merely to internal objectives of ICI. 602. Finally, the Commission considered that the volume control scheme thusestablished continued until at least until April 1984. It relied in that respect on theAtochem table, headed 'PVC  first quarter. 603. The table comprises nine columns:  the first lists all European PVC producers active on the market at that time;  the second, third and fourth columns comprise, in respect of each Europeanproducer, save for four German producers whose sales appear to begrouped together, an indication of sales effected in January, February andMarch respectively. For the first two months, the table contains the note'FIN, and for March the note 'Q. It is undisputed that those indicationscorrespond to the 'final and 'quick statistics sent to the Fides informationexchange; that is moreover what is shown by Atochem's reply of 5 May1987, attached as Appendix 11 to the statement of objections, to a requestfor information from the Commission. As the Decision states (point 12,third paragraph), Fides is an industry-wide statistical service run by aZurich-based accounting firm under which subscribing producers supplyindividual data, first in quick form and then in final form, to a central officewhich collates the information and produces global and anonymised statisticsfor the whole western European market;  the fifth column shows total sales for the first quarter;  the sixth shows the sales percentage of European producers in relation tothe total sales of all of them during the first quarter;  the seventh is headed '%T;  the eighth shows sales for April, with the note 'Q;  the final column shows the share of the producers in relation to total salesby European producers during the first four months of the year. 604. The Commission concluded that the symbol '%T was obviously a reference to atarget percentage. It also draws the conclusion from that document that theproducers referred to exchanged their sales figures outside the official Fides systemin order to monitor the functioning of a quota system. Finally, the Commissionexamined to what extent the producers had attained the target allocated to them. 605. A preliminary point to note is that the Court considers that the exact identity of theauthor of the document is not decisive. All that is relevant is whether theconclusions which the Commission drew from the Atochem table are well founded. 606. Nor is it disputed that the table refers to the first months of 1984, as Atochem'sreply of 5 May 1987 to a request for information shows. In the light of the fact thatthe table gives only 'quick and not final statistics for March and April 1984 it maybe attributed to May 1984. 607. First, the Court confirms the Commission's interpretation of the symbol '%T. Itdoes not accept that the symbol refers only to purely internal targets of theundertakings; that fails to explain why the author of the document had at hisdisposal all the internal targets of the various producers. Moreover, theinterpretation of the symbol cannot be divorced from the context of this case, andin particular from the other documents which evidence the existence of a quotamechanism between PVC producers. The table shows, in addition, that thedocument does not contain any indication of market shares in relation to total salesin western Europe, since imports are not taken into account, but does indicate therespective market shares of the producers in relation to the market constituted bythemselves as a whole, thereby confirming that the aim was to monitor marketshares in the context of the collusive mechanism. Finally, the applicants have notoffered any plausible alternative explanation of the symbol '%T in the context ofthis case. 608. Secondly, the Commission was at pains to establish whether the sales tonnagesindicated in the table for the various producers tallied with the variousundertakings' declarations to Fides. In that regard, the Commission has stated thatit was not able to obtain copies of those declarations from all the producers, andwas not therefore able to carry out a systematic monitoring of sales figuresappearing in the table. The Commission did, however, obtain the sales figures ofsome undertakings. Those figures show that 10 of the sales figures which it was ableto verify are identical with the declarations by undertakings to Fides. In addition,five further sales figures, concerning Solvay and LVM, show an amount close tothat indicated in the table. 609. Finally, the Commission attempted to calculate the sales of the four Germanproducers for the first quarter of 1984. For that purpose, it used figures declaredto Fides in respect of three of them (BASF, Wacker and Hüls), of which it hadobtained copies, and the sales figures declared by Hoechst itself in its reply of 27 November 1987 to a request from the Commission for information. It thus arrivedat a total of 198 353 tonnes, which it compared with the total of 198 226 tonnesresulting from the Atochem table. The difference between those two totals is in factnegligible, and supports the Commission's argument that such a result could not beobtained without an exchange of data between the producers. 610. The Commission referred to the result of that calculation and the conclusions itdrew from it in the statement of objections. At the hearing before the Commission,however, Hoechst denied the figures which it had itself initially provided andproduced new ones. The Commission was, however, able to establish that the latterlacked all credibility. It thus stated in the Decision (point 14; footnote 1) that'[n]ew figures produced by Hoechst at the oral hearing (but without any supportingdocumentation) ... are clearly unreliable and would have had to involve Hoechstloading its plant at over 105% while the others achieved only 70% occupationrates. In fact, Hoechst acknowledged that those new figures were wrong andsupplied the Commission with a third set of figures by letter of 21 October 1988. 611. By comparison with the figures originally provided, those new figures contain anegligible amendment concerning Hoecht's sales in Europe, which, moreover,merely confirm the accuracy of the figures in the Atochem table, whilst adding, as'sales to consumers within the meaning of the Fides declarations, Hoechst's ownconsumption for its plant at Kalle. The Court considers, however, that bearing inmind the circumstances in which those figures were produced, they cannot beregarded as sufficiently reliable to call into question those supplied by the applicantitself in response to a request for information. 612. The German producers argue, however, that their sales are aggregated, and notstated individually; it was therefore sufficient for three of the four Germanproducers to have participated in that exchange of information for the share of thefourth to be deduced, by mere subtraction, from the overall official figures issuedby the Fides. They maintain that the Atochem table did not therefore haveprobative value in relation to any of the four producers in question. That argumentcannot be accepted. The tables issued by Fides show in aggregated form salesoriginating in Germany, and not merely those of the four German producers; forthe first quarter of 1984, those statistics show a sales total significantly higher thanthe mere total sales of BASF, Wacker, Hoechst and Hüls. In those circumstances,the Court considers that knowledge of sales figures from three of them does notmake it possible to ascertain, by mere subtraction, a sales total of the four Germanproducers as accurate as that appearing in the Atochem table. 613. Moreover, the sales figures stated in the Atochem table are precise, save for thoseindicated for ICI and Shell, which are obviously rounded; in the case of ICI, afootnote to the table states: 'calculated on Fides numbers. Those findings supportthe Commission's conclusion that, in respect of the other producers, the figures arenot mere estimates calculated on the basis of official figures, but information supplied by the producers themselves. It should be remembered in that respectthat, whilst producers individually send to Fides their own declarations of salesfigures, that is done on a confidential basis; the producers receive only aggregateddata in return, and not the individual data declared by other producers. 614. Thirdly, the Commission endeavoured to verify whether the relative shares of theproducers between themselves for 1984 corresponded to the target share appearingin the Atochem table. It was thus able to determine, in the light of the informationwhich it was able to obtain, that Solvay's market share in 1984 was identical withthe target share stated in the Atochem table. It was, moreover, able to determinethat the market share of the four German producers for 1984, namely 24%, wasclose to the target share indicated in that table, namely 23.9%. Finally, ICI's marketshare for 1984 amounted to 11.1%, compared with its target share in the Atochemtable of 11%. It is also significant, as the Commission points out, that two internalICI documents of 18 September 1984 and 16 October 1984, produced asAppendices 17 and 18 to the statement of objections, refer precisely to an ICI'target of 11%. 615. Enichem maintains that its share of sales amounted to 12.3% in 1984, which isclearly below that shown in the Atochem table. That objection cannot be accepted.Enichem was invited to state on what basis it had determined its market share for1984, but was not able to offer any explanations concerning the factors on whichit relied. The Court notes, moreover, that, in the annexes to its application(Volume III, Annex 2), Enichem produced a table recapitulating its sales, year byyear, for the period from 1979 to 1986, from which it may be deduced that themarket shares were calculated in an identical manner for each of those years. Atthe request of the Court of First Instance as a measure of organisation of theprocedure, the applicant tried to explain how it had calculated its market share forthe years 1979 to 1982. In the result, the applicant merely stated its sales figuresfor each of those years without any evidence in support. Moreover, those salesfigures related not to sales of European producers in western Europe but to figuresfor European consumption, which were necessarily higher since they includedimports. That substantially reduced the market share claimed by the applicant. 616. The Court therefore finds the figures put forward by Enichem totally unreliable. 617. The factual findings in the Commission's Decision must therefore be confirmed.  The monitoring of sales in national markets 618. Amongst the proposals as to how the new series of meetings was to operate, theChecklist contains the following extract: 'Monthly data on sales of each producerby country. 619. In order to establish the existence of a mechanism whereby domestic producers ofcertain large national markets informed each other of the tonnages which they soldon each of those markets, the Commission referred primarily to the Solvay tables. 620. Those tables are presented in a uniform manner. 621. The tables concerning the German market (Appendices 20 to 23 to the statementof objections) comprise several columns. The first contains the following headings:'Consumption N.M. (i.e. 'Consumption on the national market), 'Imports fromthird countries, 'Sales by national producers; the latter heading is followed by thenames of the main national producers. The following columns are headed'Hypothetical for a given year, followed by a column headed 'Actual for thesame year. Each of those columns is divided into two, one side being expressed intonnage and the other in percentage terms; opposite each heading in the firstcolumn, figures appear. It is worth noting that the sales of each of the Germanproducers are indicated; thus the argument by Wacker and Hoechst that the salesfigures for German producers are aggregated and not stated individually is notborne out. 622. The other tables, concerning the French (Appendices 24 to 28 to the statement ofobjections), Benelux (Appendices 29 to 32) and Italian (Appendices 33 to 40)markets also contain several columns. The first contains the names of nationalproducers, a heading entitled 'Total of national producers, a heading entitled'Imports, sometimes distinguishing between imports 'from other Fides countriesand those from 'non-member (non-Fides) countries, and a heading entitled 'Totalmarket. The next two columns refer to two successive years; each of thosecolumns is subdivided into two, one side being expressed in tonnes and the otherin percentages; opposite each of the headings in the first column figures appear.In certain cases, an extra column appears, showing in percentage terms the changefrom one year to another. In addition, in certain cases, a column headed'Forecasts, referring to the current year, is added. 623. As is shown by the Decision, and as the Commission confirmed in reply to aquestion from the Court, this head of claim concerns only the German, Italian andFrench markets. 624. It should be noted at the outset that the Solvay tables do not refer merely to'hypothetical results but also to 'actual results. Since the exchange ofinformation is based on 'actual results, the information in question can only beinformation as to the past; the argument that it was only a question of futureestimates is therefore not borne out. Moreover, since the Solvay tables may bedated to the beginning of the month of March following the year in respect ofwhich sales figures by producer and by country were exchanged, those figurescannot be regarded as being sufficiently old to lose all confidentiality. 625. In addition, whilst it is true that the tables contain figures in kilotonnes, sometimesaccompanied by a decimal, that does not justify the conclusion that these weremerely estimates by Solvay alone. In fact, the sales figures for Solvay, theundertaking from which the tables came, are themselves only stated in kilotonnes. 626. The Commission endeavoured to verify that the sales shown in the tablescorresponded to the sales made by the producers mentioned therein. However, itwas unable to verify all the figures in the tables as most of the producers said theywere unable to provide their sales statistics. 627. That verification led to the finding that, on the German market, the sales figuresfor Hüls, BASF and ICI which the Commission was able to obtain were, for severalyears, identical with or close to those shown in the Solvay tables (point 16, secondparagraph, of the Decision). It should be noted in that regard that BASF stated inits application that those documents 'give a very faithful picture of the state of themain competitors' sales. Hüls has nevertheless remarked that the Solvay tables forGermany in respect of 1980 show overall sales of 736.7 kilotonnes; in relation toWacker and Hoechst, as a footnote to Appendix 20 to the statement of objectionsshows, that amount included 'special work for [Dynamite Nobel AG], which is notincluded in the Fides statistics. However, that objection does not explain preciselyhow Solvay was aware of the sales figures corresponding to that 'special work andconfirms, on the contrary, the Commission's conclusion that the producerscommunicated their sales figures to each other outside the Fides system. 628. Concerning the French market, the Commission found that the sales figures forShell, LVM and Atochem appearing in the Solvay tables for certain years were veryclose to the actual sales figures which it had been able to obtain (point 16, thirdparagraph, of the Decision). 629. The Commission was unable to obtain any actual sales figures for the Italianmarket. The applicants named in those tables have not disputed the accuracy of thefigures stated there. Moreover, as the Commission has pointed out, the first tableconcerning the Italian market carries the following commentary: 'The division ofthe national market between the different producers for 1980 has been indicatedon the basis of the exchange of data with our colleagues. Elsewhere, the tablesattached as Appendices 37 and 39 to the statement of objections, which refer to1983 sales, include, in the margin beside the name of the smallest producer on theItalian market, the note 'estimates. Finally, Solvay, in its reply of 25 February1988 to a request for information, stated: 'Because of the particular features of theItalian situation, we cannot exclude the possibility that certain sales figures mayhave been communicated between competitors. In that context, the explanationof the term 'colleagues proposed by Enichem cannot be accepted. 630. Nevertheless, the applicants maintain that those figures are not necessarily theresult of an exchange between producers. In that respect, they do not claim that the figures in the Solvay tables were themselves public, but that they could becalculated in the light of information obtained on the market or information thatwas already public. They base that argument on the explanations given by Solvayconcerning the preparation of those tables, which, in that company's submission,could have been carried out without contacts with competitors. 631. The Court notes in that respect that Shell stated in its reply of 3 December 1987to a request for information: 'Occasionally, in the period January 1982 to October1983, Solvay would telephone to seek confirmation of its estimation of Shellcompanies' sales tonnage. The letter states, however, that no precise informationwas given. 632. Concerning the French market, Solvay stated that overall market volume might beaccurately determined by reference, inter alia, to Fides statistics. By subtracting thevolume of its own sales, Solvay obtained the total sales of its competitors in theFrench market. As to the determination of sales for each producer, Solvay statedas follows: 'If the client belongs to a group producing PVC but nevertheless derivespart of its supplies from other producers, it is estimated on a global basis that theparent company supplies its subsidiary as to 80%, the remainder being sharedbetween competitors; if we know that one of the PVC consumers obtains itssupplies primarily from one producer, the French personnel [of Solvay] responsibleestimate on a global basis that that producer supplies 50% of that customer'sneeds; finally, if the customer is supplied by various producers outside the casesreferred to above, the division is made between the various suppliers on a linearbasis in relation to their number (for example: if there are four suppliers for agiven client, the French personnel responsible attribute 25% of that customer'ssupplies to each of them). In that way, Solvay determines the share of eachproducer with its own customers. Finally, 'in order to determine the total quantitiesactually sold by competitors across the whole of the market, the French personnel[of Solvay] apply the market shares thus calculated to the total figure for PVCconsumption ... and thus obtain the approximate total sales of [Solvay's]competitors. 633. It is obvious that that calculation method alleged by Solvay, and on which the otherapplicants rely, is based on global estimates and leaves significant room forapproximations and unknown factors. The means of calculation claimed cannot, in the Court's view, allow the precise and exact determination of the sales of each ofthe producers, as they appear in the Solvay tables. 634. Similarly, in relation to the German market, Solvay stated that the sales share ofeach of its competitors was determined with the help of 'conversations withcustomers, public information (official statistics and specialised press) and the'extensive market knowledge of [its] German personnel. Here also, the Courtcannot accept that that method has allowed Solvay, without any exchange withcompetitors, to arrive at results as precise as those in the Solvay tables. In that respect, moreover, the applicants' responses to a question of the Court show thatthe number of each producer's customers sometimes amounted to several hundred. 635. Finally, the examples given by DSM to demonstrate that the sales figures mayeasily be calculated in the light of public information are irrelevant. Those examplesconcern the assessment of the overall market and of the applicant's own marketshare, which is in no way at issue in the Decision. 636. In those circumstances, the objections of the applicants based on facts must bedismissed.  The target prices and price initiatives 637. As already stated (paragraph 584 above), the Checklist contains in section 3proposals as to how the new series of meetings envisaged was to operate. Afterlisting the names of 10 PVC producers in the form of initials or acronyms, thedocument contains the following extracts: 'how to achieve greater pricetransparency, 'delta for importers (2% maximum?), 'higher prices UK and Italy(levelling up?) and 'abatement of tourism. It also contains a heading 'Priceproposals, which includes the following: 'The period of stability (we can accept02 1980 status, but only for limited period) and 'Price levels October toDecember 1980 and dates of implementation. Finally, under the heading relatingto the meeting to be held on 18 September 1980, the following statement appears:'commitment to be sought on October/December price moves. 638. The Response to Proposals contains two points relating to price. The first proposal,to the effect that '[t]here should be a common price level for Western Europe,is followed by the response: 'Proposal supported, but doubts voiced about thepracticability of abandoning the traditional importers' discount. The sixth proposalstates that '[a] price increase should not be attempted before the end of the 3-month period of stabilisation, during which suppliers were to have contact onlywith customers that they had supplied during the previous three months (point 5of the Response to Proposals); it is accompanied by the following response: '...because of the losses currently being incurred, the possibility of a price increase on1 October should not be discounted, though the difficulties in the face of this wererecognised, e.g. of obtaining unanimous support for this and of having to apply itat a time when demand in Western Europe was likely to be falling. 639. In its Decision, the Commission identified 15 price initiatives (see Table 1 annexedto the Decision), the first of which came into being on 1 November 1980. 640. In this action, LVM and DSM are the only applicants to deny the very existenceof the price initiatives found by the Commission, on the ground that such priceinitiatives were inconceivable in the PVC sector. Suffice it to say in that respect that Appendices P1 to P70 to the statement of objections refer systematically totarget prices and price initiatives. Apart from the question whether these wereindividual or concerted actions, that finding is sufficient to rebut the argument ofthose applicants. 641. The existence of the price initiatives must therefore be regarded as established. Itis then necessary to see whether, as the Commission maintains, those initiativeswere the result of collusion between PVC producers. 642. It should be noted at the outset that even if, in the cases of some applicants,Appendices P1 to P70 are internal documents drawn up after the dates of the priceinitiatives identified by the Commission, that fact by itself does not vitiate theconclusion that the initiatives were the result of collusion. On the contrary, it isnecessary to examine the contents of the documents in question. 643. The applicants do not deny that the documents produced by the Commission showthat increases were planned on identical dates to take the PVC price to a uniformlevel which, as a rule, was much higher than that prevailing on the market in thedays preceding those increases. In fact, in respect of each of the initiativesidentified by the Commission that emerges from the very wording of AppendicesP1 to P70. Moreover, the excerpts from the trade press annexed by theCommission to the statement of objections confirm those increases on the datesidentified by the Commission. 644. The Court also considers, after a careful examination of Appendices P1 to P70, thatthose initiatives cannot be regarded as having been taken separately by individualcompanies. In the light of both the wording of the appendices and a comparisonbetween them, the Court is satisfied that those documents do constitute cogentproof of collusion between producers concerning the price at European level. 645. Thus, for example, Appendix P1, which is a document from ICI, after referring tothe fact that '[d]emand in the West European market for PVC in Octoberincreased considerably in anticipation of the November 1st price rise, states: 'Theprice increase announced for November 1st is intended to bring all West Europeansuspension prices [for PVC] to a level of minimum DM 1.50. That document canbe compared with Appendices P2 and P3 from Wacker, which show an identicalincrease on the same date, and P4, from Solvay, which contains the followingextract concerning November 1980: '[S]ome importers are offering discountsagainst UK producers, contrary to what was planned. Moreover, Appendix 5, fromDSM, also refers to the price initiative of 1 November. 646. Similarly, the second price initiative planned for 1 January 1981 to take the PVCprice to DM 1.75 is referred to in Appendices P2 and P8 from Wacker, P4 fromSolvay, P6 and P7, obtained from ICI, and P9 from DSM. In particular, AppendixP4, after the extract cited in the paragraph above, states: 'The outlook for December is poor, in spite of another increase announced for 1st January 1981.Appendix P6 contains the following passage: '[A] further price move has beenannounced ... to DM 1.75 [per kilogramme] across all Western European marketsfrom 1 January 1981. 647. The initiative planned for 1 January 1982, intended to take PVC prices to DM 1.60,is established by two documents from ICI, joined as Appendices P19 and P22 to thestatement of objections, and two documents obtained from DSM, joined asAppendices P20 and P21. Appendix P22 contains the following commentary: 'Theindustry initiative ... is to raise prices to DM 1.60 per kilogramme/£380 per tonne,but it does not look promising  BP and Shell are refusing to cooperate. AppendixP21 states: 'The outlook for January is not optimistic. In spite of the announcedprice increase, we now see a decrease [in] prices versus the December level. Whatis more, the UK suppliers did not even inform the UK customers about theincrease [in] prices. It should be noted in that regard that whereas it is possiblefor an undertaking to be informed, through its customers for example, that acompetitor has or has not announced a price increase, it is not possible for it beinformed that a producer has not announced a price increase that it should haveannounced. That can be explained only by the fact that the expected increase hadpreviously been agreed between producers. 648. The initiative announced for 1 May 1982 to take prices to DM 1.35 is confirmedby Appendices P23 and P26 from ICI, P24 from DSM and P25 issued by Wacker.In particular, the author of Appendix P23, examining price levels on the Europeanmarket, and especially the French and German markets, in April 1982, adds: 'Theslide in prices was halted by the month end, due to the announcement of a generalincrease in European prices to DM 1.35/kg on 1 May. Appendix P24, concerningMay 1982, stated that '[d]ue to the announced price increase DSM's prices hadrisen, but that '[t]his is far behind the planned increase to the levels of DM1.35/DM 1.40. This is mainly due to the failures in the German and Beneluxmarkets and because of the non-cooperation of the UK and Scandinavian suppliersin the price increase. In France and Italy the increase was more successful. 649. The initiative of 1 September 1982 to take prices to DM 1.50/kg is established, inparticular, by Appendices P29, P39 and P41 from DSM, P30 and P34 from ICI, andP31 and P33 from Wacker. In Appendix P29, dated 12 August 1982, one finds thefollowing concerning prices for August: 'Some pressure is felt in Germany andBellux, which is kind of a surprise as a major price increase is planned [for] 1stSeptember. Under the heading 'Prices September, the document continues: 'Amajor price increase [to] a level of [approximately] DM 1.50/kg is planned. So far,we have noticed that all major producers are announcing this price increases (sic)and only very few deviations have been found. Appendix P32 contains thefollowing commentary: 'In the Western European market, very intensive efforts arebeing made to consolidate prices on 1 September. Appendix P33 contains thefollowing observation: 'The price increase of 1 September taking PVC to a minimum of DM 1.50/kg has been generally successful, although we are still findingcases in October where our competitors are supplying at DM 1.35 and DM1.40/kg. In Appendix P34, the author of the document, surveying the situation ofthe Western European market in general, notes an increase in demand in October1982 in relation to the previous month, and adds: '[H]owever, this was to a largeextent due to the endeavours to bring up prices [on] 1 September, whichconsequently had led to stocking up before then. Appendix P41 contains thefollowing commentary, concerning the initiative of 1 September: 'The success ofthe price increase is now very much depending on the discipline of the Germanproducers. 650. Reference can also be made to the price increases on 1 April 1983 and 1 May1983, designed to take PVC prices to DM 1.60, with a minimum of DM 1.50, andDM 1.75, with a minimum of DM 1.65, respectively. In its reply of 3 December1987 to a request for information (Appendix 42 to the statement of objections),Shell stated that at a meeting in Paris on 2 or 3 March 1983 between WesternEuropean PVC producers 'some proposals were made by other producers relatingto price increases and volume restraint, although it added that no agreement wasreached. ICI has confirmed that that meeting was held (Appendix 4 to thestatement of objections). Appendix 43, from ICI, includes the following passage:'Inform all customers starting Monday, 7 March [1983] that prices will be raisedto DM 1.60 with rebates for category 1 and category 2 of respectively 10 and 5pfennig. As the remainder of the text of that telex shows, that increase was to takeeffect from 1 April 1983. The author of Appendix P49 from Shell dated 13 March1983, after referring to a decline of prices in March to a level of DM 1.20/kg,states: 'A major initiative is planned to stop this erosion, with minimum targetsestablished for March/April of DM 1.50 and DM 1.65/kg respectively. A telexfrom ICI of 6 April 1983, joined to the statement of objections as Appendix P45,comments: 'Evidence from the market clearly suggests that the industry at largeis now following the price initiative of 1 April 1983. A document from Wacker of25 April 1983 (Appendix P46) refers to 'efforts to increase PVC prices in April toDM 1.50/kg and in May to DM 1.65/kg. A DSM internal report of 24 June 1983(Appendix 48), after referring to a decline in prices in Western Europe during thefirst quarter of 1983, states: 'Since April 1st, an attempt has been made to raiseprices across Western Europe. The planned increase [to] a level of DM 1.50 [on]April 1st and DM 1.65 [on] May 1st has failed. 651. In an ICI memorandum of 31 January 1983, annexed as Appendix 44 to thestatement of objections, it was stated that: 'In Europe the Target prices are fairlywell known through the industry and as such are Posted levels. The authoradded: 'It is widely acknowledged that these Posted levels will not be achieved ina slack market ..., but the announcement does have a psychological effect on thebuyer. An analogy is the car purchase where the List Price is set at such a levelso that the purchaser is satisfied when he obtains his 10-15% discount, he hasstruck a good deal, but the car producer/garage has still an adequate margin. In those circumstances, the author suggested that 'the PVC industry announce widelyTarget prices which are well above likely attainable, e.g. DM 1.65/kg in March(emphasis removed). 652. It may also be noted that the trade press itself referred on a number of occasionsto collusion between PVC producers. Thus, in European Chemical News of 1 June1981 one reads: 'Europe's major plastics producers are making a concerted effortto impose significant price increases for [PVC] in an attempt to reach early 1981target levels. On 4 April 1983, the same publication stated: 'West Europe's [PVC]producers are making a determined attempt to increase prices from the beginningof April. They are understood to have met in Paris in the middle of March todiscuss the price rises. 653. In the light of a meticulous examination of the numerous documents relating toPVC prices produced by the Commission as appendices to the statement ofobjections, of which those described in paragraphs 645 to 650 above are onlyexamples, the Court considers that it has been established, on the evidenceadduced by the Commission, that the 'price increases, 'price initiatives or 'targetprices to which those documents refer did not constitute mere individual decisionstaken by each of the producers independently, but were the result of collusionbetween them. 654. It is to be noted immediately, however, that many of the Appendices P1 to P70refer to the failure or limited success of certain price initiatives, as the Commissionfound in point 22 of that Decision. 655. Those failures or limited successes may be explained by the various factorshighlighted by the Commission in point 22 and which are expressly mentioned insome of the Appendices P1 to P70. In some cases, for example, customers boughtheavily at the old price in advance of an announced price increase. That is whatemerges in particular from Appendices P8, P12, P21, P23, P30 and P39. 656. Moreover, it appears on reading Appendices P1 to P70 that, at least on certainoccasions, the producers sought to find a balance between maintaining sales volumeand relationships with individual customers on the one hand, and increasing priceson the other. 657. Thus, special discounts or rebates were sometimes offered to major customers (see,for example, Appendix P17), or temporary agreements were made with customersto ensure supplies to them at prices prior to the proposed increase (in particularAppendix P21). Several documents obtained by the Commission show that, oncertain occasions, producers evinced their intention to support a proposed priceinitiative whilst ensuring that that would not be to the detriment of sales volumes.Thus an ICI telex sent to various branches in Europe on 18 December 1981concerning the price initiative for January 1982 reads: '[T]here remains some doubt whether these levels will be achieved, so please keep a careful eye on individualcustomer situations throughout Europe ... it is very important that we strike theright balance between increasing prices and maintaining customer share in thisdifficult period. A note by Wacker of 9 August 1982 (Appendix P31) contains thefollowing observation: 'Wacker's strategy for the forthcoming months is to followin the wake of our competitors' efforts to raise prices, whilst not tolerating anyfresh diminutions in quantities. In other words, if the market does not accept thatincrease, we shall exercise the necessary price flexibility at the required moment.Similarly, an undated note by DSM (Appendix P41) contains the followingcommentary concerning the forthcoming initiative of 1 January 1983: 'DSM willsupport the attempt to increase the prices, though not as a leader. The priceincrease will be supported within the scope of a defence of our market shares. 658. Conversely, a number of documents show the intention of producers to support aprice initiative strongly, or actual support for such an initiative, despite the risks forsales volumes. Thus, for example, in the case of DSM, Appendix P13 states that'we supported the price increase strongly and Appendix P41 contains thefollowing extract: 'The September price increase and the decision of DSM tosupport this increase very strongly have resulted in a loss in volume, but far betterprices. Concerning ICI, reference may be made in particular to Appendix P16,dated 14 July 1981, concerning the price initiative of 1 June and referring to ICI'sfirm stance on prices, to Appendix P30 of 20 October 1982, which states that 'ICImaintained a particularly hard line, and to Appendix P34, concerning theSeptember 1982 initiative, which states: 'Again we supported the price increase infull. Reference may also be made, in the case of Wacker, to Appendix P15,concerning the price initiative of 1 September 1981 designed to take the targetprice to DM 1.80: 'Wacker Chemie has decided, as a general policy and in theinterests of urgent price consolidation, not to transact any business below DM 1.80in September. 659. As the Commission stated in point 22 of its Decision, some producers wereoccasionally accused of aggressive market behaviour, which brought disruption orfailure to price initiatives which other producers wished to support. Thus, in a notefrom DSM of 25 February 1981 (Appendix P9), the author states that: 'Theannounced price increase [on] January 1 to a level of DM 1.75 has certainly notbeen successful. The note continues: 'The aggressive attitude of some French andItalian suppliers during the last three months initiated heavy competition at thelarge accounts, which resulted in decreasing prices. Similarly, Appendix P23 fromICI, dated 17 May 1982, refers to ICI's concerns as to its UK market share andstates: 'Shell, BP and DSM were seen as particularly aggressive here. A DSMdocument of 1 June 1981, sent by the Commission to the undertakings by letter of3 May 1988, states in relation to the Belgian and Luxembourg markets in April1981: 'An attempt to increase prices failed after one week. Aggressive foregoingby BASF, Solvay, ICI and SAV resulted in a price level that was no better, noworse than the previous month. Another DSM document of October 1981 states in relation to the same geographical markets: 'During August, prices came underpressure. A more aggressive behaviour by several suppliers (BASF, SAV, Solvay,Anic and ME) was noticed. An ICI document of 19 April 1982 states:'Confirmation of which manufacturers are leading the price downwards is difficultto find, but both Shell and Solvay have been indicated as probable culprits. 660. In reality, price initiatives could succeed only in a favourable environment and thatwas beyond the control of the producers. Thus, Appendix P52 shows that ICIviewed several factors as contributing to the likely success of the initiative set for1 May 1983, including lower stocks, a resumption in demand, rumours of shortages,especially for export, a rise in prices on external markets and the effects ofrationalisation of the sector. Other documents show change in the level of demand(for example, Appendices P27, P31, P45, P47) or of imports from non-membercountries (for example, Appendices P16 and P31). Conversely, matters such asover-capacity, increased imports, falling prices on the markets of non-membercountries, the large number of PVC producers in Western Europe or the openingof new plants by Shell and ICI appear as factors making the price level morefragile (Appendix P21 from DSM concerning 1981). 661. The Court concludes from the above examination that the Commission correctlyassessed the facts of this case as regards price initiatives.  The origin of the cartel 662. In the light of the above examination, there appears to be a close correlationbetween the projects described in the planning documents and the practicesactually found on the PVC market, as from the months immediately following thedrawing up of those documents, in terms of both prices and regulation of volume,which constitute the two main aspects of the infringement. In addition, but to alesser extent, there is a correlation between the projects described in the planningdocuments and the practices of which complaint is made concerning informationexchange between producers. 663. The Court will examine the applicants' arguments concerning the origin of thecartel in the light of the wording of the planning documents, in the light of theinformation given by ICI concerning them in its reply to a Commission request forinformation of 30 April 1984, annexed as Appendix 4 to the statement ofobjections, and in the light of that correlation between the planning documents andthe practices actually found in the market in the weeks immediately after they weredrafted. 664. In its reply to the request for information, ICI indicated that, bearing in mind theplace where the Commission found the documents, it was reasonable to suppose that they concerned PVC. The correlation between the planning documents and thepractices actually found in the PVC market confirms that conclusion. 665. Secondly, the exact identity of the author of the planning documents does notappear to be decisive. The only question which matters is whether those documentsmay be regarded as the blueprint for a cartel, as the Commission maintains.Moreover, the document entitled 'Response to Proposals does contain the nameof its author: Mr Sheaff, the Director of ICI's 'Plastics Division at the beginningof the 1980s. In its reply to a request for information, ICI indicated that it wasreasonable to suppose that Mr Sheaff was also the author of the document entitled'Checklist. 666. The Court cannot accept the objection that the planning documents concerned onlythe British market, or the British and Italian markets. Point 1 of the Response toProposals concerns a 'common price level for Western Europe. Point 2 concernsthe possibility of a quota system 'on a company and not a national basis, whichat the very least excludes the hypothesis that a single geographical market wasinvolved. Moreover, in point 6 of the Response to Proposals, which considers thepossibility of a price rise in the final quarter of 1980, reference is made todifficulties resulting, in particular, from a fall in 'demand in Western Europe asa whole. Even if, in two places, the Checklist does refer more particularly to theBritish and Italian markets, it contains a point 3 headed 'Proposals for a newframework of meetings, and that point contains proposals formulated in generalterms which do not in any way suggest that they are limited to one or twogeographical markets; on the contrary, the fact that those proposals are presentedjust after the list of the main European PVC producers supports the conclusionthat the British and/or Italian markets were not the only ones envisaged. Finally,the planning documents refer in particular to two practices, the first relating toprice initiatives, of which the first was scheduled for the last quarter of 1980, andthe second relating to a quota system accompanied by a compensation mechanism.That analysis shows that an initiative was introduced on 1 November 1980 to 'bringall West European suspension prices for PVC to a minimum level of DM 1.50,and that a compensation mechanism was put into operation from the early monthsof 1981, in which all European producers except Shell participated. That correlationsupports the conclusion that the planning documents did not refer merely to oneor two national markets. 667. The applicants' claim that the planning documents themselves were neverdistributed outside ICI's premises is irrelevant. All that matters is whether thecontent of those documents reveals the existence of a plan to organise the PVCmarket outside the operation of free competition. 668. The argument that the two planning documents were unconnected cannot beaccepted. In the first place, they were both found at ICI's premises and werephysically attached to each other. Secondly, the Checklist comprised a list of certain topics which, in a general way, concerned mechanisms for monitoring sales volumesand regulating prices. Those topics are themselves considered, with greaterprecision, in the Response to Proposals. Moreover, some of the more detailedpoints occur in both documents. That applies to the reference to a three-monthstabilisation period, the possibility of a price rise in the final quarter of 1980, theneed to find an arrangement to take account of new production capacity, or againthe possibility of variances on predetermined market shares, with the samereference to a threshold of 5% and to the reservations expressed in that regard.The Court cannot therefore accept that those two documents are unrelated. 669. The applicants nevertheless argue that, having seen the planning documents, theCommission wrongly concluded that the second document constituted a summaryof the PVC producers' response to ICI's proposals (point 7, final paragraph, of theDecision). They argue that the planning documents could be nothing more thanexpressions of opinion or observations of staff members of ICI, or of ICI andSolvay, the undertaking more particularly referred to in points 5 and 6 of theChecklist. They also argue that the Response to Proposals is an earlier documentthan the Checklist, thereby negating the Commission's argument. 670. In the Court's view, the mere wording of the planning documents does not supportthe Commission's conclusion, in the final paragraph of point 7 and the firstparagraph of point 10 of its Decision, that the second planning documentconstituted the response of the other PVC producers to ICI's proposals any morethan it supports the conclusion that those documents were mere expressions of theopinions of ICI staff members. 671. Even if the applicants' argument were correct, that would not affect theCommission's approach to the evidence. As the above examination has shown, theCommission has produced numerous documents establishing the existence of thepractices described in the Decision. The fact also remains that the planningdocuments, and especially the Checklist, which emanate from a senior ICIexecutive, clearly reveal the existence of a blueprint for a cartel on the part of thatundertaking, which at the time those documents were produced was one of themain European PVC producers; moreover, the practices envisaged in thosedocuments were detected in the West European PVC market in the followingweeks. It therefore appears that, at the very least, those planning documentsconstitute the basis on which consultations and discussions between producers tookplace, and led to the actual implementation of the unlawful measures envisaged. 672. In that regard, even if the documents produced by the Commission in support ofits factual findings concerning practices on the PVC market do not indeed makeany reference to the planning documents, the Court considers that the closecorrelation between those practices and the practices described in those documentssufficiently demonstrates the existence of a link between them. 673. The Commission was therefore right to conclude that the planning documents couldbe regarded as being at the origin of the cartel which materialised in the weekswhich followed their production.  The meetings between producers 674. It should be noted at the outset that the fact that informal meetings took placebetween producers outside the context of trade associations is not contested by theapplicants. 675. Moreover, for the purposes of assessing the facts in relation to Article 85 of theTreaty, it is not essential for the date, and a fortiori the place, of the meetingsbetween the producers to be established by the Commission. ICI's reply of 5 June1984 to a request for information from the Commission (Appendix 4 to thestatement of objections) shows that those meetings took place 'fairly regularly, atdiffering levels of seniority, approximately once a month. ICI stated that by reason,inter alia, of the fact that no documents concerning those meetings could be found,it was not able to give the dates and locations of meetings held since August 1980.On the other hand, it could identify the dates and locations of nine informalmeetings between producers during the first ten months of the most recent year,namely 1983. Thus, six meetings were held in Zurich on 15 February, 11 March, 18April, 10 May, 18 July and 11 August 1983, two in Paris on 2 March and 12September 1983, and one in Amsterdam on 10 June 1983. ICI also listed theundertakings which are believed to have participated in at least some of thoseinformal meetings, namely, in alphabetical order, Anic, Atochem, BASF, DSM,Enichem, Hoechst, Hüls, ICI, Kemanord, LVM, Montedison, Norsk Hydro, PCUK,SAV, Shell, Solvay and Wacker. 676. In its reply of 3 December 1987 to a request for information (Appendix 42 to thestatement of objections), Shell admitted participation in the Paris meeting of 2March 1983 and the Zurich meeting of 11 August 1983, in respect of which theCommission had obtained proof in the form of diary entries. 677. BASF, in its reply of 8 December 1987 to a request for information from theCommission (Appendix 5 to the statement of objections), also stated that meetingstook place between PVC producers between 1980 and October 1983, 'sometimesas often as once a month. It also listed the undertakings represented regularly oroccasionally at those meetings, namely, in alphabetical order, Anic, Atochem,Enichem, Hoechst, Hüls, ICI, LVM, Montedison, Norsk Hydro, Shell, Solvay andWacker. 678. Finally, in the course of these actions, Montedison has acknowledged the existenceof informal meetings between producers, as referred to in the specialist press. 679. Although the applicants do not deny that those informal meetings betweenproducers took place, they object that their subject-matter has not been established. 680. Despite the number of meetings which were held during the period concerned andthe investigative measures carried out under Articles 11 and 14 of Regulation No17, the Commission was not able to obtain any minutes or written record of thosemeetings. However, contrary to what the applicants maintain, it does not followfrom point 9 of the Decision that the Commission concluded, on the strength ofthat fact alone, that the meetings pursued an anti-competitive aim. 681. In its reply to the requests for information, ICI indicated that those meetingscovered a wide range of issues, 'including discussions on price and marketvolumes. More particularly, it stated that 'discussions certainly took place at themeetings held between producers during the period concerned regarding pricelevels and the level of margin necessary to reduce the extent of the massive lossesthey were incurring. It is ICI's recollection that individual producers expressed theirown views on this subject and that these were debated. Often producers helddifferent views on the appropriate price levels ... . However, an apparent consensussometimes emerged of what might represent price levels to which producers mightaspire, but no firm price commitments resulted from such discussions. It was ICI'sjudgment at the time, and remains so, that any such consensus was more apparentthan real. Certainly, as far as ICI is aware, each party to such discussions appearsto have felt free to take whatever independent action it felt was appropriate to itsown individual circumstances. 682. In its response of 3 December 1987 to a request for information, Shellacknowledged having participated in two meetings listed by ICI. Concerning thefirst, which was held in Paris on 2 March 1983, it stated: 'The meeting discussedindustry difficulties, and some proposals were made by other producers relating toprice increases and volume restraint. [The Shell representative] gave no support tosuch proposals. [He] cannot recollect that any agreement or consensus wasreached. Concerning the second meeting, held in Zürich on 11 August 1983, Shellstated that: 'Some producers expressed their views as to a price proposal. [TheShell representative] gave no support to any such views. [He] cannot recollect thatany agreement or consensus was reached. 683. The Court notes in this respect that, contrary to what the applicants argue, theCommission has not misconstrued the replies of certain undertakings to therequests for information. It recalled that each of those producers had, despite thepurpose of the meetings, maintained that no 'commitments were entered intothere (see point 8, second paragraph, of the Decision concerning ICI and point 9,first paragraph, concerning primarily Shell and Hoechst). 684. It should not be forgotten, moreover, that the planning documents indicatedexpressly the intention to establish a 'new framework of meetings between producers, which were to discuss arrangements on prices, volume monitoring andexchange of information. The Commission has also established the existence ofproducer meetings during the period concerned. Finally, as the earlier analysis hasshown, the Commission has established the existence during the period in questionof quota mechanisms, price regulation and exchanges of information betweenproducers. 685. From the close coincidence between what was envisaged in the planningdocuments, on the one hand, and the practices actually implemented on the PVCmarket, the Commission correctly concluded that the informal meetings betweenproducers were in fact concerned with the topics set out in the planning documents. 686. The Court therefore finds that the Commission correctly established the purposeof the meetings between producers which were held from 1980 to 1984. 687. In those circumstances, the applicants' objections to the part of the Decisionheaded 'The Facts must be dismissed. 2. Law 688. The applicants accuse the Commission of committing several errors of law inapplying Article 85 of the Treaty. First, it erred in law by classifying the conduct ofthe undertakings as an agreement 'and/or a concerted practice (a). Secondly, theyargue that it was wrong in this case to describe it as either an agreement or aconcerted practice (b). Thirdly, it infringed Article 85 of the Treaty in determiningthe object or effect of the alleged collusion (c). Finally, it erred in law by holdingthat it affected trade between Member States (d). (a) The classification of the conduct as an agreement 'and/or a concertedpractice Arguments of the applicants 689. LVM, Elf Atochem, DSM, Hüls and Enichem maintain that the Commissioninfringed Article 85(1) of the Treaty by contenting itself with the statement in theoperative part of the Decision that the undertakings had participated in anagreement 'and/or a concerted practice. 690. The applicants note that the Court of First Instance has recognised the possibilityof a joint classification (in particular, Case T-8/89 DSM v Commission [1991] ECRII-1833, paragraphs 234 and 235). 691. In this case, however, Enichem argues that by adopting an alternative legalclassification rather than a cumulative one the Commission went beyond that case-law. 692. LVM, Elf Atochem, DSM and Hüls maintain that the case-law referred to abovecan apply only in special circumstances. Only if proof of both classifications wereestablished would such a solution be applicable. In this case, the Commission hasnot established the existence of either an agreement or a concerted practice. 693. LVM, DSM and Enichem argue that the distinction between those two legalclassifications entails differences as far as adducing evidence is concerned. Findings of the Court 694. The Court notes at the outset that the arguments of LVM, Elf Atochem, DSM andHüls do not seek to challenge the principle itself that conduct may be classified asan agreement 'and/or a concerted practice, but rather the adoption of such aclassification in this case, given that, in their submission, neither an agreement nora concerted practice has been shown to exist. The reply to this plea thereforedepends on the reply to the following plea. 695. It is thus only Enichem which challeges the principle itself that conduct may beclassified as an agreement 'and/or a concerted practice. 696. In the context of a complex infringement which involves many producers seekingover a number of years to regulate the market between them the Commissioncannot be expected to classify the infringement precisely, for each undertaking andfor any given moment, as in any event both those forms of infringement arecovered by Article 85 of the Treaty. 697. The Commission is therefore entitled to classify that type of complex infringementas an agreement 'and/or concerted practice, inasmuch as the infringementincludes elements which are to be classified as an 'agreement and elements whichare to be classifed as a 'concerted practice. 698. In such a situation, the dual classification must be understood not as requiringsimultaneous and cumulative proof that every one of those factual elements revealsthe factors constituting an agreement and a concerted practice, but rather asdesignating a complex whole that includes factual elements of which some havebeen classified as an agreement and others as a concerted practice within themeaning on Article 85(1) of the Treaty, which does not provide for any specificclassification in respect of that type of complex infringement. 699. This plea, as raised by Enichem, must therefore be dismissed. (b) Whether the conduct in this case could be classified either as an agreementor as a concerted practice Arguments of the parties 700. The applicants argue that the Commission has not established the existence ofeither an agreement or a concerted practice. 701. BASF and ICI argue that, for an agreement to exist for the purposes of Article85(1) of the Treaty, there must be evidence of a commitment to common objectivesand of mutual obligation (Case 44/69 Buchler v Commission [1970] ECR 733,paragraph 25; Van Landewyck, paragraph 86). Under Article 85(1), an agreementhas to be concluded between at least two parties who, even if not in such a manneras to be binding, have shown an intention to engage in a given line of conduct thatis likely to distort competition (Case 28/77 Tepea v Commission [1978] ECR 1391).It is not therefore sufficient to establish the existence of a consensus betweenproducers. 702. The applicants argue that the facts in this case do not establish that the'Checklist, which might or might not have been sent to other undertakings, oreven brought to their attention, constituted a proposal for collusion. They maintainthat there is nothing to show that the proposal allegedly constituted by the'Checklist was discussed, drawn up by common agreement and accepted by otherproducers. Nor, in the light of its very content, could the 'Response to Proposalsconstitute the acceptance of the alleged cartel proposals. In any event it has notbeen established that the opinions expressed in the 'Response to Proposalsemanate from any of the other PVC producers. 703. The applicants further argue that the mere existence of the meetings does not allowit to be established what their purpose was. There was nothing to link them to thealleged overall plan. In fact, they submit, the documents used by the Commissionconcerning the price initiatives showed that the undertakings pursued independentpricing policies in the light of market trends; none of them proved prior concertedaction between producers. 704. In Elf Atochem's submission, the Commission has not established the existence ofan agreement with any certainty. The mere existence of meetings was not sufficientto reveal their purpose or the adherence to the alleged agreement of each of theparties taking part. The Commission could not deduce the existence of a 'broadcontinuing agreement from circumstances which showed, at most, conduct that wasneither general, nor uniform, nor permanent. Thus there was, at most, a series ofdiscrete agreements. 705. The applicants do not challenge the definition of a concerted practice in the thirdparagraph of point 32 of the Decision (Case 48/69 ICI, paragraph 112; Suiker Unie,paragraph 174; Case 172/80 Züchner v Bayerische Vereinsbank [1981] ECR 2021,paragraphs 12 to 14; CRAM, paragraph 20). Nevertheless, Elf Atochem, BASF, ICIand Hüls argue that the concept of a concerted practice involves two elements, theone subjective (concertation) and the other objective (conduct on the market, thatis to say a practice). In this case, the Commission did not establish either. Inparticular, by not carrying out an investigation of the undertakings' marketbehaviour, the Commission failed to demonstrate even the existence of a concertedpractice. 706. LVM and DSM argue that the Commission has sought, in breach of Article 85 ofthe Treaty, to penalise an attempted infringement. Since the article concerns theobject or effect of a practice, there must necessarily be implementing measures.Therefore, an attempt or intention to conclude a prohited agreement, and bynature any form of collusion not resulting in implementing measures in the formof 'practices, falls outside the scope of Article 85 of the Treaty. LVM and DSMthus deny that mere participation in meetings with a prohibited purpose may beclassified as a punishable act. 707. Elf Atochem argues that parallel conduct constitutes only imperfect evidence of aconcerted practice (Ahlström Osakeyhtiö); moreover, the burden of proof cannotbe reversed by the mere finding of parallel conduct (Opinion of Advocate GeneralDarmon in Ahlström Osakeyhtiö, at p. I-1445). In any event, the applicant maintainsthat the Commission has not even established parallel conduct in the matter ofprices, quotas and compensations. 708. BASF argues that the mere fact that rival undertakings implement a price increasedoes not signify that they are acting in concert (Case 48/69 ICI). In that respect, itemphasises the crucial importance of price for the marketing of PVC, bearing inmind that it is an interchangeable bulk product. The price was thus established atthe balancing point between supply and demand. The lowering of prices by aproducer, the only way for him to increase his market share, would necessary leadto a general collapse in prices in view of the small number of suppliers. Conversely,a rise in prices would succeed only if market conditions allowed; otherwise, otherproducers would not follow the rise, and its initiator would either lose market shareor be forced to lower his prices again. 709. Wacker and Hoechst claim that the Commission wrongly refrained from examiningthe actual market behaviour of the undertakings. 710. SAV argues that the Commission infringed its obligation to carry out a detailed andobjective examination of the economic context of the alleged cartel (SociétéTechnique Minière, Suiker Unie, Ahlström Osakeyhtiö and SIV). In this case, theCommission merely made a few general remarks on the market (points 5 and 6 of the grounds for the decision), but made no attempt to examine its actualfunctioning. 711. Montedison argues that the Commission has not taken account of the conditionsin which prices are determined in the case of products intended for industrial users;in reality, price tables are published regularly, the price applied by the mainundertaking in the sector allowing others to adopt a position without therebyforfeiting their autonomy (Suiker Unie). Against those obvious considerations, theCommission merely refers to the purpose of the meetings as stated in the planningdocuments, the participation of nearly all PVC producers at those meetings, andthe producers' internal marketing reports (Decision, point 21). There was nothingto show, however, that the 1980 proposal, which was drafted by one undertaking,was accepted and implemented; nor was Montedison even mentioned. Moreover,the mere fact that nearly all producers participated in those meetings revealsnothing as to their content. Finally, the internal marketing reports did not concernMontedison. The company adds that, even if it were established, the fact that listprices rose after the meetings does not show that the rises were the result ofconcerted action. 712. Enichem argues that the fact that none of the price initiatives ever succeededsuggests that the efforts in question were made by producers individually.Moreover, the documents collected by the Commission (the P appendices to thestatement of objections) show the highly competitive nature of the market, whichcannot be imputed simply to lack of discipline in a cartel; in the absence of directproof, the allegation of a cartel should be supported in detail by actual collusiveconduct on the part of the presumed participants, which was not the case here. 713. LVM, Elf Atochem, DSM, SAV, ICI, Hüls and Enichem argue that, even if thefactual findings of the Commission were established, it would be sufficient for theundertakings impugned to invoke circumstances casting those facts into a differentlight and thereby permitting an alternative explanation to that adopted by theCommission (CRAM, paragraph 16; Ahlström Osakeyhtiö, especially at paragraphs70 and 72). 714. In this case, as regards price initiatives, the Commission rejected without evaluationthe explanation put forward by the applicants and based on the economic theoryof 'barometric price leadership. However, that theory leads to the conclusion thatprice initiatives are simply the result of the normal operation of the market, withoutillicit contact between enterprises. Findings of the Court 715. It is well established in the case-law that for there to be an agreement within themeaning of Article 85(1) of the Treaty it is sufficient for the undertakings to have expressed their joint intention to behave on the market in a certain way (see, interalia, ACF Chemiefarma, paragraph 112; Van Landewyck, paragraph 86). 716. The applicants' arguments do tend to show, at least in part, that the planningdocuments cannot be classified as an agreement within the meaning of Article 85(1)of the Treaty. Those arguments are, however, irrelevant. 717. The grounds of the Decision, and particularly points 29 to 31 concerning the natureand structure of the agreement, show that the Commission did not classify theplanning documents as an agreement within the meaning of that provision.Moreover, as was emphasised in the part of the Decision headed 'The Facts, theCommission states that it regards those documents as a 'blueprint for a cartel. 718. Furthermore, the applicants' arguments consist in repeating the factual objectionswhich have already been examined and rejected by the Court. 719. In those circumstances, the applicants cannot successfully argue that the creationat producer meetings and the joint implementation of quota and compensationmechanisms, price initiatives and exchanges of information on actual sales, over anumber of years, do not constitute the expression of a joint intention to behave onthe market in a certain way. 720. Moreover, although Article 85 distinguishes between 'concerted practices,'agreements between undertakings and 'decisions by associations ofundertakings, the object is to bring within the prohibition of that article a form ofcoordination between undertakings which, without having reached the stage wherean agreement properly so-called has been concluded, knowingly substitutes practicalcooperation between them for the risks of competition (Case 48/69 ICI, paragraph64). The criteria of coordination and cooperation laid down by the case-law of theCourt, far from requiring the elaboration of an actual 'plan, must be understoodin the light of the concept inherent in the Treaty provisions relating to competition,according to which each economic operator must determine independently thepolicy which he intends to adopt on the common market. Although thatrequirement of independence does not deprive economic operators of the right toadapt themselves intelligently to the existing and anticipated conduct of theircompetitors, it strictly precludes any direct or indirect contact between suchoperators with the object or effect either to influence the conduct on the marketof an actual or potential competitor or to disclose to such a competitor the courseof conduct which they themselves have decided to adopt or contemplate adoptingon the market (Suiker Unie, paragraphs 173 and 174). 721. The applicants do not challenge that case-law, referred to by the Commission inpoint 33 of the Decision, but contest its application in this case. 722. Nevertheless, by organising over a period of more than three years, andparticipating in, meetings whose purpose has been correctly established by theCommission, producers took part in concerted action whereby they knowinglysubstituted practical cooperation between them for the risks of competition. 723. Each producer thus not only pursued the aim of eliminating in advance uncertaintyabout the future conduct of its competitors, but also could not fail to take account,directly or indirectly, of the information obtained during those meetings indetermining its future market policy. 724. The applicants nevetheless rely on the judgments in CRAM and AhlströmOsakeyhtiö to challenge the Commission's conclusions. 725. Those judgments establish that where the Commission's reasoning is based on thesupposition that the facts established cannot be explained other than by concertedaction between undertakings, it is sufficient for the applicants to provecircumstances which cast the facts established by the Commission in a differentlight and thus allow another explanation of the facts to be substituted for the oneadopted by the Commission (CRAM, paragraph 16; Ahlström Osakeyhtiö, especiallyat paragraphs 70, 126 and 127). 726. That case-law is not applicable here. 727. As the Commission points out in point 21 of the Decision, the proof of theconcerted action between the undertakings is based not on a mere finding ofparallel market conduct but on documents which show that the practices were theresult of concerted action (see paragraph 582 et seq.) 728. In those circumstances, the burden is on the applicants not merely to submit analleged alternative explanation for the facts found by the Commission but tochallenge the existence of those facts established on the basis of the documentsproduced by the Commission. As examination of the facts has shown, that has notbeen done in this case. 729. The Commission was therefore right to classify the conduct in question, in thealternative, as a concerted practice within the meaning of Article 85(1) of theTreaty. 730. Finally, the Court finds that, as stated in point 31 of the Decision, the practicesimplemented are the result of collusion which continued over several years, basedon the same mechanisms and pursuing the same common purpose. TheCommission was therefore right to conclude that those practices were to beregarded as a single permanent collusion rather than a series of discreteagreements. 731. The plea must therefore be dismissed in its entirety. (c) The finding that the object or effect of the conduct was to restrictcompetition Arguments of the parties 732. LVM and DSM argue that restriction of competition requires, as evidence thatthere has been an infringement, obvious conduct and an effect on the market. Inthis case, in the absence of proven conduct the Commission should have madeefforts to demonstrate an effect on the PVC market. It did not do so, contentingitself with assertions, which were, moreover, merely speculative. 733. LVM, DSM, Hoechst and Wacker maintain that the Commission unlawfully failedto carry out, or have carried out, an economic analysis of the effects of the allegedcartel, whereas it is required to assess the effects on a market and to take accountof the economic context (see, in particular, Société Technique Minière and AhlströmOsakeyhtiö, paragraph 70). Moreover, it rejected without explanation all theeconomic conclusions of an expert commissioned by the incriminated undertakingsshowing that the PVC market was characterised by lively competition. Wacker andHoechst claim that in order to compensate for the insufficient examination by theCommission of the alleged cartel's effects an expert report should be commissionedin order to assess those effects, or that a period should be allowed them to requestand obtain such a report. SAV maintains that the Commission contented itself withformulating a few generalities about the market (points 5 and 6 of the Decision),but did not examine its actual functioning at all. 734. ICI argues that when the Commission was appraising the effect of the alleged cartelon prices it failed to take into account the economic evidence which had beensubmitted. That showed that the PVC market was characterised by livelycompetition, thus confirming that PVC prices were not subject to any influenceother than the free play of competition. The Commission did not put forward anyevidence of its own to substantiate its theory, which was based on mere assertion.In reality, whatever took place during the meetings had no effect on prices. 735. BASF maintains that the Commission's examination of the effects of the allegedcartel was inadequate, as is confirmed by the removal of a passage in point 37 ofthe German version of the Decision compared with the 1988 decision. 736. Montedison recalls that the PVC sector was in crisis following the substantial risein oil prices in 1979. All undertakings produced at a loss between 1980 and 1986,causing some of them to withdraw from the market. Faced with that situation, theymade use of their right to hold meetings and to express their respective opinionsfreely. The practices complained of were not, therefore, the result of collusion but represented attempts to recover some of the losses, the only rational conduct in amarket in crisis. Moreover, those practices had no effect on competition; theCommission itself found that the price initiatives met with total failure or onlypartial success. 737. Hüls claims that the alleged price initiatives had no effect, as market pricesremained below the alleged target prices. 738. Enichem argues that the Commission has not adduced evidence that the marketwas affected. The psychological effect alleged by the Commission does notcorrespond to any precise legal concept. Moreover, prices barely changed betweenJanuary 1981 and October 1984. Findings of the Court 739. Examination of the facts shows that the infringement complained of consisted, inparticular, in the joint fixing of prices and sales volumes on the PVC market. Theaim of such an infringement, which is expressly mentioned by way of example inArticle 85(1) of the Treaty, is anti-competitive. 740. The fact that the PVC sector was in crisis at the time of the facts in question doesnot justify the conclusion that the conditions for applying Article 85(1) of theTreaty were not fulfilled. Whilst such a market situation might in an appropriatecase be taken into account with a view to obtaining, exceptionally, an exemptionunder Article 85(3) of the Treaty, it is clear that the PVC producers did not at anytime apply for exemption under Article 4(1) of Regulation No 17. Moreover, as isshown by point 5 of the Decision in particular, the Commission was not unawareof the crisis in the industry when it made its assessment; it took account of it indetermining the amount of the fine. 741. It is well established that for the purpose of applying Article 85(1) of the Treatythere is no need to take account of the actual effects of an agreement once itappears that its aim is to prevent, restrict or distort competition within the commonmarket (see, in particular, Consten and Grundig v Commission [1966] ECR 299, atp. 342). Therefore, in so far as the applicants' plea is to be understood as requiringthat it be shown that competition has actually been affected, even though the anti-competitive aim of the conduct complained of is established, it cannot be accepted. 742. It does appear that two sentences of point 37 of the German version of the 1988decision, relating to the effects of the agreement, have been removed from theGerman version of the decision. Since that removal was merely intended toharmonise the various language versions of the Decision, however, the applicants cannot conclude that the Commission's examination of the effects of theinfringement was insufficient. 743. Finally, contrary to what some of the applicants maintain, the Commission did notcontent itself with a speculative analysis of the infringement. It merely confineditself to stating in point 37 of the Decision that it was a matter of pure speculationwhether in the long term prices would have been significantly lower in the absenceof collusion. 744. Consequently, the Commission correctly concluded that the infringement was notwithout its effects. 745. For example, fixing European target prices necessarily distorted competition on thePVC market. Buyers saw their scope for price negotiation restricted. Moreover, ashas already been pointed out (paragraph 655 above), a number of the AppendicesP1 to P70 show that buyers often purchased before the date on which a priceinitiative was implemented. That confirms the Commission's conclusion that buyerswere aware of the fact that the producers' price initiatives would limit their abilityto negotiate and would not therefore be without effect. 746. Whilst the producers regarded some price initiatives as failures (see paragraph 654above), a fact of which the Commission was well aware in taking its Decision, manyof the Appendices P1 to P70 refer to the total or partial success of price initiatives.In fact, the producers themselves stated on several occasions that a price initiativehad either brought a period of falling prices to an end or led to an increase inmarket prices. See, for example, Appendix P3 ('the increase on 1 November [1980]has worked, so that a second action has been undertaken), P5 ('the price increase[on] 1 November [1980] was not completely successful, but prices [have] increasedsubstantially), P17 ('the June [1981] price increases are gradually being acceptedthroughout Europe), P23 ('the slide in prices was halted by the month end [i.e.April 1982], due to the announcement of a general increase in European prices toDM 1.35/kg on 1 May), or P33 ('the price increase for homopolymerous PVCintroduced on 1 September [1982], taking the price to a minimum of 1.50 DM/kg,has been generally successful). 747. The objective findings of the producers themselves at the time of the facts thusshow that the price initiatives affected market prices. 748. Moreover, as the Commission pointed out (point 38 of the Decision), the practicesin question were decided upon over a period of more than three years. It is thushardly likely that, at that time, the producers considered them wholly ineffective. 749. It follows that the Commission correctly assessed the effects of the infringement.Therefore, and bearing in mind in particular the objective findings of the producersthemselves at the time of the facts, the Commission was not required to carry out a detailed economic analysis of the effects of the cartel on the market. In thosecircumstances, there is no need to accede to the request of Wacker and Hoechstthat such an analysis be carried out. 750. This plea must therefore be dismissed. (d) The finding that the conduct affected trade between Member States Arguments of the parties 751. LVM and DSM argue that the Commission has not shown that the practices inquestion affected trade between Member States. In their submission, the decisivefactor in determining whether trade between Member States is affected is not thefact that the agreement 'may affect trade but the economic effect of theagreement. In their submission, that effect, or the possibility thereof, must bedemonstrated (Société Technique Minière, at p. 249; Case 42/84 Remia vCommission [1985] ECR 2545, paragraph 22). 752. ICI argues that, when considering whether the effect was 'appreciable, theCommission relied on unsubstantiated assertions. It failed, for example, to take intoaccount the economic evidence submitted by the applicant in reply to the statementof objections. In reality, whatever took place during the producers' meetings hadno effect on trade between Member States. Findings of the Court 753. Article 85(1) of the Treaty requires that agreements and concerted practices becapable of affecting trade between Member States. The Commission has noobligation therefore to demonstrate that it has actually been so affected (CaseC-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraphs 19 and 20). 754. The case-law also shows that an agreement, concerted practice or decision by anassociation of undertakings falls outside the prohibition in Article 85 when it hasonly an insignificant effect on the market, taking into account the weak position ofthose concerned on the market of the product in question (Case 5/69 Völk vVervaecke [1969] ECR 295, paragraph 7). 755. In this case, as the Commission stated in point 39 of its Decision, the conductcomplained of extended to all Member States and covered virtually all Communitytrade in this industrial product. In addition, most of the producers sold theirproducts in more than one Member State. Finally, it is not denied that there wasconsiderable intra-Community trade, given the imbalances in supply and demandin the various national markets. 756. The Commission therefore concluded correctly in point 39 of the Decision that theconduct in question was likely to have an appreciable effect on trade betweenMember States. (e) The other pleas in law Misuse of powers 757. BASF considers that the Commission misused its powers by refusing to carry outthe verifications necessary to support its assertions concerning the effects of thecartel on the market, the economic context, the duration of the infringement andthe existence of obstacles to the free operation of the market. It thereby misusedthe discretionary power conferred upon it by Article 15(2) of Regulation No 17. 758. The Commission argues that this plea is merely a repetition of previous pleas andshould therefore be dismissed for the same reasons. In any event, it denies usingits powers for purposes other than those stated. 759. In the absence of objective, relevant and consistent evidence that the Decision wastaken with the sole, or at least the main, purpose of attaining objectives other thanthose stated, this plea must be dismissed. Inconsistency between the operative part and the grounds of the Decision 760. Shell argues that there is an inconsistency between Article 1 of the operative partof the Decision and the findings supporting it. The company observes that in thefindings it is alleged, first, to have participated only in a concerted practice and notin an agreement between undertakings (point 34); secondly, it is accepted that itin no way participated in drawing up the planning documents (point 48); thirdly,its alleged participation lasted from January 1982 until October 1983 (points 48 and54); and, finally, its participation was limited (paragraphs 48 and 53). On each ofthose points, Shell maintains, the operative part was different. 761. It must be remembered that the operative part of a decision is to be understoodin the light of the grounds supporting it. 762. In this case, Article 1 of the operative part, referring not merely to an agreementbut also to a concerted practice, excludes the possibility of any contradiction withpoint 34 of the Decision. Moreover, since that article refers to infringements 'forthe periods identified in this Decision, the applicant cannot argue that there is acontradiction with the grounds of the Decision either as regards its non-participation in the blueprint for a cartel in 1980 or as regards the duration of itsparticipation. Finally, there is nothing in the operative part to suggest that the Commission did not take account of the limited role of the applicant, as set out inpoints 48 and 53 of the grounds for the Decision. 763. The plea must therefore be dismissed. C  The applicants' participation in the infringement 764. The applicants accuse the Commission first of applying the principle of collectiveresponsibility (1). Secondly, they maintain that their participation in theinfringement has in any event not been established (2). 1. The alleged attribution of collective responsibility Arguments of the parties 765. Elf Atochem, BASF, SAV, ICI and Enichem argue that under a universallyrecognised principle the liability of an undertaking can only be personal. 766. In this case, the Commission disregarded that principle. It stated in point 25 of theDecision that it was necessary to prove not that each participant had taken part inevery manifestation of the infringement, but only that it had participated in thecartel 'as a whole. 767. The Commission observes that it was perfectly aware of the need to prove theindividual adherence of the applicants to the cartel, as is demonstrated, inparticular, by point 25, second paragraph, point 26, first paragraph, and the end ofpoint 31 of the Decision. Findings of the Court 768. In the second paragraph of point 25 of the Decision, the Commission stated asfollows: 'As regards the practicalities of proof, the Commission considers thatbesides demonstrating the existence of a cartel by convincing evidence, it is alsonecessary to prove that each suspected participant adhered to the common scheme.This does not however mean that documentary proof must exist to show that eachparticipant took part in every manifestation of the infringement ... . In the presentcase it has not been possible, given the absence of pricing documentation, to provethe actual participation of every producer in concerted price initiatives. TheCommission has therefore considered in relation to each suspected particpantwhether there is sufficient reliable evidence to prove its adherence to the cartel asa whole rather than proof of its participation in every manifestation thereof. 769. At the end of point 31 of the Decision, the Commission states: 'The essence of thepresent case is the combination of the producers over a long period towards acommon unlawful end, and each participant must not only take responsibility forits own direct role as an individual, but also share responsibility for the operationof the cartel as a whole. 770. It is thus apparent, especially from the first sentence in the second paragraph ofpoint 25 of the Decision, that the Commission was aware of the need to prove theparticipation of each undertaking in the cartel. 771. For that purpose, it referred to the concept of the cartel considered 'as a whole.That does not justify the conclusion, however, that the Commission applied theprinciple of collective responsibility, in the sense that it deemed certainundertakings to have participated in actions with which they were not concernedsimply because the participation of other undertakings in those actions wasestablished. 772. The concept of the cartel considered 'as a whole is indissociable from the natureof the infringement in question. That consisted, as the examination of the factsshows, in the regular organisation over the years of meetings of rival producers, theaim of which was to establish illicit practices intended to organise artificially thefunctioning of the PVC market. 773. An undertaking may be held responsible for an overall cartel even though it isshown to have participated directly only in one or some of its constituent elementsif it is shown that it knew, or must have known, that the collusion in which itparticipated, especially by means of regular meetings organised over several years,was part of an overall plan intended to distort competition and that the overall planincluded all the constituent elements of the cartel. 774. In this case, even if in the absence of documentation the Commission was not ableto prove the participation of every undertaking in the implementation of the priceinitiatives, such implementation being one of the manifestations of the cartel, itnevertheless considered itself able to demonstrate that each undertaking had in anyevent participated in the producer meetings, the purpose of which was, inter alia,to fix prices in common. 775. As is stated in the fourth and fifth paragraphs of point 20 of the Decision: 'TheCommission is not ... able, in the absence of price documentation from theproducers, to show that all of them simultaneously introduced identical price listsor even applied the German mark European targets. What can however bedemonstrated is that one of the major objects of the meetings in which they wereall involved was to set price targets and coordinate price initiative[s]. 776. The same idea is expressed in the fifth paragraph of point 26: 'The degree ofresponsibility borne by each participant does not ... depend on the documentswhich, fortuitously or otherwise, are available at that undertaking but rather on itsparticipation in the cartel seen as a whole. Thus, the fact [that] the Commission didnot obtain evidence as to the pricing conduct of certain firms does not diminishtheir involvement, since they are shown to have been full members of a cartel inwhich price initiatives were planned. 777. It is thus apparent that, in the Decision, the Commission maintained that it wasable to demonstrate that each undertaking had participated, first, in certainmanifestations of the cartel and, secondly, in the light of consistent evidence, inmeetings between producers in the course of which the latter agreed amongstthemselves inter alia the prices to be charged in the following days. In that regard,the Commission rightly referred to the fact that the undertaking in question wascited in the planning documents, the plans in which were implemented and foundto exist on the PVC market in the weeks which followed their preparation, to thefact that its participation in other manifestations of the cartel was proven, and tothe fact that the undertaking had been cited by BASF and ICI as havingparticipated in the meetings between producers. 778. It follows from all those considerations that the Commission did not imputecollective responsibility to each undertaking, or responsibility in respect of amanifestation of the cartel in which that undertaking did not become involved, butresponsibility for the actions in which each had participated. 2. Individual participation of the applicants in the infringement 779. All the applicants in these cases save ICI deny that their participation in theinfringement has been established, either in a specific plea or in the context ofother pleas concerning, for example, the establishment of the facts or the rules onthe burden of proof. 780. Consequently, it is necessary to examine the situation of each of the applicants inturn, with the exception of ICI. The examination of this question is indissociablefrom that of the probative value of the documents to which the Commission refers,and of the legal consequences which it drew from them, which have already beenexamined. (a) DSM Arguments of the applicants 781. The applicants begin by denying that they took part in meetings between producersin the course of which prices and market shares were discussed, and maintain thatthe Commission's evidence in that respect is clearly insufficient. In the first place,the mention of DSM's name on the Checklist, the probative value of which hasalready been challenged, does not prove either that the meeting envisaged tookplace or that DSM took part in it. Moreover, the statements of ICI, which were inany event made subject to reservations, concerned facts which occurred in 1983, theyear in which DSM left the PVC market. Finally, DSM was not identified by BASFas having taken part in the meetings. 782. Secondly, as to the alleged quota system, the applicants consider that the DSMdocument, which is the only one used against the company by the Commission andwhich contains the term 'compensation, has no probative value. Even if the termdid have the meaning ascribed to it by the Commission, that does not mean thatthe applicants took part in such a mechanism. 783. Thirdly, as to monitoring of sales, the applicants deny that the Commission hasestablished the existence of such a mechanism. 784. Finally, concerning target prices and price initiatives, the applicants reiterate thatthe very existence of concerted price initiatives has not been established. Findings of the Court 785. DSM has been identified by ICI as a participant in the meetings between producers(see paragraph 675 above), the illicit nature of which has been demonstrated by theCommission (see paragraphs 679 to 686 above). Contrary to what the applicantmaintains, ICI's statements concern not only the period after January 1983 but alsothe informal meetings which took place approximately once a month 'as fromAugust 1980, as BASF has confirmed (see paragraphs 675 and 677 above). 786. In addition, DSM was explicitly mentioned in the planning documents as ananticipated member of the 'new framework of meetings envisaged by ICI. Bearingin mind the close correlation between the practices envisaged in those documentsand those found on the PVC market in the following weeks (see above, paragraph662 et seq.), the mention of DSM's name may be taken as evidence of itsparticipation in the infringement. 787. A number of the documents which the Commission used to establish the existenceof common price initiatives (see paragraphs 637 to 661 above) emanated fromDSM. Several of those documents, and in particular Appendices P5, P13, P28 andP41, also state that DSM 'strongly supported those price initiatives. 788. The Alcudia document, which together with other documents confirms the existenceof a mechanism for regulating sales volumes between PVC producers, refersindirectly to DSM as it states that 'PVC have only one [producer] outside [thecompensation scheme] (see paragraph 589 above). In response to a request forinformation ICI stated that Shell was the producer in question. Moreover, the DSMdocument, which the Commission rightly held to confirm the existence of acompensation mechanism between producers (see paragraphs 594 to 598 above),is a monthly report on the state of the market drawn up by DSM staff. 789. As regards the monitoring of sales, the applicant is challenging only the existenceof such a mechanism. That plea has already been examined and dismissed by theCourt (see paragraphs 618 to 636 above). 790. In the light of all those considerations, the Commission was right to conclude thatDSM participated in the infringement. (b) Atochem Arguments of the applicant 791. The applicant submits that the Commission failed to adduce evidence of ElfAtochem's consent to or participation in the infringement. 792. Concerning the price initiatives, the applicant maintains that no document mentionsits name, or the names of its constituent companies. Nothing in the documents onfile establishes that Elf Atochem adopted conduct parallel to that of the other PVCproducers. On the contrary, many documents demonstrate competitive andindependent conduct on its part. 793. Concerning the alleged system of quotas, compensation and market monitoring, theapplicant argues that the two documents on the basis of which it is incriminated(the Atochem table and the Solvay tables) have no probative value. TheCommission itself acknowledged in point 11 of the Decision that there was verylittle discipline. In the applicant's submission, the constant variations in ElfAtochem's market share are clearly inconsistent with the existence of a system suchas that in which it is alleged to have participated. 794. The Commission has failed to adduce evidence of either Elf Atochem's presenceat the meetings between producers or of its participation, active or passive, in anydecisions which might have been taken there. Findings of the Court 795. Atochem has been cited by ICI as a participant at the meetings between producers(see paragraph 675 above), the illicit nature of which has been established by theCommission (see paragraphs 679 to 686 above). 796. The presence of the applicant at those meetings has been confirmed by BASF (seeparagraph 677 above). 797. In addition, the planning documents mention, amongst the members identified byICI as prospective participants in the 'new framework of meetings, the 'newFrench company, as to which it is not disputed either that that referred to thecompany Chloé, or that the latter subsequently became Atochem. 798. For the reasons already set out (see paragraph 788 above), the Alcudia documentrefers indirectly to Atochem. 799. The Atochem table, summarising the sales of the various producers still active inthe first half of 1984 and the corresponding targets (see above, paragraph 602 etseq.), was discovered at the headquarters of that company. Even if, as the applicantmaintains, that table was not drawn up by its staff, it indicates both a sales targetand sales figures for that company. 800. Atochem's argument that 'production trends do not demonstrate the existence ofthe alleged quotas (application, page 12) is based on a table which constitutedAnnex 1 to the applicant's reply to the statement of objections; but that table refersto the years 1986 and 1987, which are not at issue in this case. 801. Finally, amongst the sales figures which appear in the Solvay tables and which theCommission was able to verify, one concerns Atochem and is accurate (seeparagraph 628 above). 802. Moreover, even if the Commission was unable to obtain an Atochem price tableenabling it to verify that that company had implemented the common priceinitiatives, Appendices P1 to P70 show that the French producers were involved inthat aspect of the cartel. Thus, in addition to documents such as Appendices P1,P6, P15, P19, P22, P26, P29, P32, P45 and P48, which refer to 'general initiativesintended to raise 'European prices as a whole or to 'industry initiatives, certainappendices refer more specifically to the French market and support the conclusionthat the price initiatives were announced and applied there. That is apparent inparticular from Appendices P21, P23, P24, P30, P31 and P38. 803. Although two documents refer to the aggressive attitude of French producers onprices, that does not affect the Commission's conclusions. In the first place, theCommission took account of that point in its examination of the facts, especially inthe third paragraph of point 22 of the Decision, which states: 'It is also true thata number of producers who took part in the meetings were named as aggressive or disruptive in certain markets by other producers who considered themselves asstrong supporters of price initiatives and were prepared to lose volume in order toforce through an increase. The Commission also referred to that fact in its legalassessment, especially in the first paragraph of point 31 of the Decision, whichstates: 'In relation to one or other aspect of the arrangements a particularproducer or group of producers may from time to time have had reservations orbeen dissatisfied about some specific point. Moreover, the occasional aggressiveconduct of certain producers is referred to as having contributed to the failure ofcertain initiatives, for instance in points 22, 37 and 38 of the Decision. Secondly, thefact that the applicant occasionally refrained from implementing a proposed priceincrease does not affect the Commission's conclusion; more specifically concerningthose undertakings for which it had not been able to obtain price tables, theCommission limited itself to stating that those undertakings had in any eventparticipated in meetings between producers the purpose of which was, in particular,the setting of price objectives (see above, paragraph 774 et seq.), and not the actualimplementation of those initiatives (Atochem, paragraph 100). 804. Those factors taken together show that the Commission was right to conclude thatthe applicant participated in the infringement. (c) BASF Arguments of the applicant 805. The applicant claims that there is insufficient evidence of its adherence to thecartel taken as a whole. The evidence was limited to the planning documents,participation in regular meetings, and the Atochem and Solvay tables. 806. In the first place, the probative value of the planning documents has already beenchallenged. In the absence of any evidence that it was aware of those documentsand subscribed to them, they could not prove the participation of the applicant inthe cartel. 807. Secondly, there is no evidence to support the conclusion that the applicant adheredto agreements in breach of competition law allegedly adopted at the meetingsbetween producers, the mere existence of meetings being insufficient, moreover, toshow that that occurred. In any event, the applicant recalls having stated in its replyof 8 December 1987 to a request for information that it had not participated in anymeeting after October 1983, assuming that there were any. 808. Thirdly, the mere fact that the applicant's name was mentioned without itsknowledge in the Atochem table is not, BASF submits, sufficient to establish itsparticipation in an illicit cartel. That document did not show either that BASF wasassigned a quota of its own, or that it adhered to a system of quotas. The Solvay tables do not establish that the applicant took part in exchanges of information withits competitors. Findings of the Court 809. The applicant has acknowledged that it took part in informal meetings betweenproducers, which the Commission has established were unlawful under Article 85(1)of the Treaty (see above, paragraphs 679 to 686). 810. Its presence at the meetings has been confirmed by ICI (see above, paragraph 675). 811. The applicant was identified in the planning documents as a prospective participantin the 'new framework of meetings. Even if, as already indicated (see above,paragraphs 670 to 673), those documents constitute at most a 'blueprint for acartel and cannot therefore be regarded as proof of the applicant's participationin the infringement, the fact that the applicant is cited in them may be regarded asevidence of such participation. 812. For the reasons already set out (see paragraph 788 above), the Alcudia documentrefers indirectly to BASF. 813. BASF's name appears in the Atochem table, which includes, albeit in aggregateform, the sales data and percentage of target sales for the four German producers(see paragraph 612 above). 814. BASF is also mentioned in the Solvay tables. Amongst the sales figures mentionedwhich the Commission was able to verify, two concern the applicant and areaccurate (see paragraph 627 above). 815. Moreover, even if the Commission was unable to obtain a BASF price tableenabling it to verify that that company had implemented the common priceinitiatives, Appendices P1 to P70 show that the German producers were involvedin that aspect of the cartel. Thus, in addition to documents such as Appendices P1,P6, P15, P19, P22, P26, P29, P32, P45 and P48, which refer to 'general initiativesintended to raise 'European prices as a whole or to 'industry initiatives, certainappendices refer more specifically to the German market and support theconclusion that the price initiatives were announced and applied there. That isapparent in particular from Appendices P23, P24, P26, P29, P30, P41 and P58. 816. Those factors taken together show that the Commission was right to conclude thatthe applicant participated in the infringement. (d) Shell Arguments of the applicant 817. In the first part of this plea, the applicant alleges that the Commission failed totake into account the particular structure of the Shell group. Although it was anaddressee of the Decision it neither produces nor supplies PVC. It is merely aservice company, whose advisory role does not put it in a position to direct Shell'soperating companies to implement a cartel, whether on prices or on productionquotas. Furthermore, the Commission was not entitled to assume that if theapplicant advised group operating companies to seek a particular price on aparticular occasion, those companies would actually choose to do so. 818. In the second part of the plea, the applicant states that the proof of itsparticipation in the meetings between producers is founded largely on its admissionthat one of its representatives attended two of them. 819. However, the first meeting, held in Paris on 2 March 1983, was intended solely todiscuss the crisis affecting the European petrochemical industry and the need torestructure the industry, in particular in the light of the first draft report of theGatti/Grenier working group drawn up following meetings with the Commission.Moreover, a common initiative could not have been decided at that meeting as thetrade press had referred to the price increase two weeks earlier. The issue ofEuropean Chemical News of 21 February 1983 stated: 'Producers are understoodto be considering price increases to DM 1.50-1.65/kg, but the timing is unclear. Inany event, the Shell representative gave no support to any alleged initiative, as isconfirmed by the fact that less than four weeks after the meeting Shell groupcompanies established a target price of DM 1.35/kg, well below the alleged targetprice of DM 1.60/kg or the alleged minimum industry price of DM 1.50/kg. 820. The second meeting, which took place in Zurich in August 1983, was to considerthe marketing environment for PVC, prevailing market prices, and the need in theindustry for higher prices. Shell's representative gave no support to any of therelevant proposals. The company maintains that none of its internal documentationindicates any price target for that period, and that any industry prices referred toin its documentation at that time were clearly derived from independent tradesources. 821. In the third part of this plea, the applicant submits that the only evidence for thequotas is the 1980 planning documents and the Atochem table, which probablyreferred to 1984. According to the Decision, Shell was not involved in drawing upthe 1980 plan and its alleged participation ceased in October 1983. As for thecompensation scheme, the Decision expressly acknowledged (in point 26, end ofsecond paragraph) that Shell did not participate in it. 822. In the fourth part of the plea, concerning mechanisms for monitoring sales onnational markets, Shell notes that proof of the existence of those mechanisms is based partly on the Solvay tables and partly on telephone conversations betweenSolvay and Shell, which Shell acknowledged to have taken place in its reply to arequest for information. 823. The Solvay tables concerned the large national markets in Germany, Italy, Beneluxand France. In this case, only the latter two markets could be relevant, since Shellis not a home producer in Germany or Italy. As regards Benelux, the Commissionitself recognised that the figures did not correspond to the specific Fidesdeclarations. As regards France, contrary to the Commission's claims, the figuresascribed to Shell in the Solvay documents were clearly different from thosecontained in Shell's declaration to Fides. 824. The Commission also misconstrued Shell's reply to the request for information. Noprecise information was given to Solvay; any such communication concerned onlyWest European sales and could not therefore constitute the source for the Solvaytables, which contained a breakdown by country. Secondly, any such informationwas given only occasionally between January 1982 and October 1983, whereas theSolvay tables covered the period from 1980 to 1984. Those facts confirmed that theinformation in the Solvay tables was obtained only from officially publishedstatistics and contacts with customers. 825. In the fifth part of its plea, concerning price initiatives, the applicant alleges thatthe Decision is inconsistent with regard to the extent of Shell's participation. TheDecision states at one and the same time that Shell took part in the price initiatives(point 20), that it was informed of them (point 26) and that it merely knew of them(point 48). 826. Shell maintains that, apart from two isolated instances, it did not attend anymeetings of producers. 827. It also maintains that Shell companies established their prices independently. Inrelation to the four initiatives for which the Commission holds documentsemanating from Shell, the company comments that industry initiatives were alwaysannounced in the trade press first and that the price targets fixed by Shell did notcorrespond to the alleged price targets in the industry. The only case ofcoincidence, on 1 September 1982, was not significant, since Shell did not fix itstarget price until 9 September 1982 to come into effect on 1 October 1982; besides,as early as November 1982 Shell reduced its target price (DM 1.40/kg instead ofDM 1.50/kg). 828. In the sixth part of its plea, Shell argues that a concerted practice was incompatiblewith its strategy, under which it had brought on stream in 1981 a new PVC plantwhose immediate capacity of 100 kt per annum was to be utilised to the maximum.Shell's two PVC plants were loaded to a level far in excess of the industry averageand its market shares were thereby increased substantially. In those circumstances, to accept a quota based on the position achieved in 1979 would make no sense. Inreality, no year could serve as an acceptable reference point, since Shell wasoperating a new plant. Findings of the Court 829. In the first part of the plea, the applicant argues that, bearing in mind theparticular features of the Royal Dutch-Shell group, it is impossible for it to dictatea line of conduct, anti-competitive or otherwise, to the operating companies in thegroup. 830. In point 46 of the Decision, when examining the particularities of the Royal Dutch-Shell group, the Commission acknowledged that 'the various operating companiesin the chemical sector apparently have a large degree of management autonomyand that the applicant is a 'service company. 831. It also stated, however, and this has not been challenged, that the applicantassumes overall responsibility 'for the planning and coordination of the activitiesof the Shell group in thermoplastics. It thus stands in an advisory position vis-à-visthe operating companies in the group. 832. Moreover, also in point 46 of the Decision, the Commission stated that theapplicant 'was in contact with the cartel and 'attended the meetings in 1983. Anumber of appendices to the statement of objections concerning the price initiativesemanated from the applicant (Appendices P35, P36, P49, P50, P51, P53, P54, P55and P59). Those appendices, amongst other documents, prove the existence ofconcerted initiatives between producers (see paragraph 637 et seq.) and show thatthe applicant was, at the very least, precisely informed of the target prices fixed andthe dates scheduled for that purpose. Moreover, the Shell representative at the twomeetings in which the applicant admits participating in 1983 was Mr Lane, thenVice-President of Shell. 833. Finally, the Commission observed that '[t]he Court's definition of a concertedpractice is particularly apt to cover the involvement of Shell which cooperated withthe cartel without being a full member, and was able to adapt its own marketbehaviour in the light of its contact with the cartel (Decision, point 34).Consequently, even if the applicant was not in a position to impose prices on thesales subsidiaries, the fact remains that, by being in contact with the cartel andsending the information thus obtained to the subsidiaries, it was the driving forceof the Shell group's participation in the concerted practice. It should be noted inthat respect that, as their wording shows, those appendices to the statement ofobjections emanating from the applicant, which indicated both the target prices andtheir implementation dates, were addressed to all the group's subsidiaries inEurope. 834. In those circumstances, the alleged particular structure of the Royal Dutch-Shellgroup cannot in itself be an obstacle to finding that the applicant was in a positionto participate in a practice contrary to Article 85(1) of the Treaty and, a fortiori,to its being an addressee of the Decision. 835. As regards the proof of the applicant's participation in the cartel, it should berecalled that the Commission acknowledged the applicant's lesser role in theinfringement, especially in paragraphs 48 and 53 of the Decision. It therefore needsto be examined whether the Commission adduced sufficient evidence to establishthat the applicant operated 'on the periphery of the cartel (point 53 of theDecision). 836. In that respect, both ICI and BASF have identified the applicant as a participantat the informal meetings between producers (see paragraphs 675 and 677 above).Shell admits having participated in two meetings, proof of which was obtained bythe Commission in the form of diary entries (see paragraph 676 above). However,it denies that those meetings had an anti-competitive aim, or that it took part incollusion of any kind on those occasions. 837. Concerning the first meeting, in Paris on 2 March 1983, the Court has found thatthe Commission has established that it had an anti-competitive aim (see paragraphs650 and 652 above). 838. The press article relied on by the applicant, taken from the European ChemicalNews of 21 February 1983, does not affect that conclusion. The article itself isambiguous, and does not justify the conclusion that the initiatives were takenindividually. Moreover, it is vague as to the date of the initiatives, whereas thedocuments dating from a few days after the meeting of 2 March 1983, and foundby the Commission at the premises of Shell and other undertakings, show theirexact date. 839. Shell maintains, finally, that it did not in any event support a price initiative,arguing that on 31 March 1983 it fixed its target price at DM 1.35/kg, a level belowthat allegedly fixed by producers acting in concert. The fact remains, however, asis shown by Appendix P49, dated 13 March 1983, that Shell was informed of theprice level determined by the producers on 2 March 1983 and of the date forimplementing that initiative. Thus, by its participation in the meeting of 2 March1983, the applicant, far from determining its pricing policy independently in a stateof uncertainty as to the conduct of its competitors, must necessarily have taken intoaccount, directly or indirectly, the information it obtained from them at thatmeeting. 840. With respect to the second meeting, held in Zurich in August 1983, the applicantacknowledged in reply to a request for information from the Commission thatduring that meeting 'some producers expressed their views as to a price proposal. Several appendices to the statement of objections, such as Appendices P53, P54,P55, P56, P57, P58 and P60, show that an initiative was in fact envisaged and putinto operation for the month of September 1983. Finally, Appendices P53, P54 andP55, emanating from Shell, indicate that the latter took part in that initiative,contrary to what it maintains. It was, moreover, aware of the price initiative beforeit was made public. The trade press relied on by the applicant in its reply to thestatement of objections did not refer to the initiative until the end of September. 841. The Alcudia document, concerning the compensation mechanism, has no probativevalue in relation to the applicant, as according to ICI's answers to a request forinformation Shell was the only producer not to participate in it (see paragraph 788above). As is shown inter alia by point 48 of the Decision, that finding contributedto the Commission's conclusion that Shell had acted on the periphery of the cartel. 842. The Atochem table concerns the first quarter of 1984 and may be attributed toMay 1984 (see paragraph 606 above), whereas, according to the third paragraphof point 54 of the Decision, Shell had distanced itself from the cartel since October1983. Indeed, the Atochem table contains only rounded figures for Shell's sales.However, in so far as that table shows a target percentage for the applicant, whichcan only have been determined before the first quarter of 1984, it shows that Shellwas no outsider to the quota mechanism at the end of 1983. 843. With regard to the sales monitoring mechanism (see paragraphs 618 to 636 above),only two of the geographical markets covered by the Solvay tables are relevant toShell, namely Benelux and France. 844. In reply to a question from the Court, the Commission confirmed that thecomplaint concerning the monitoring of sales did not apply to the Benelux market,as already indicated in the statement of objections. 845. On the other hand, those tables show precise figures for Shell on the Frenchmarket for sales in both 1982 and 1983 (see paragraph 628 above). The fact thatthey are so precise confirms that, at least in the French market, Shell participatedin the exchange of information. In its reply to a request for information on 3December 1987 the applicant stated that 'occasionally, in the period January 1982to October 1983, Solvay would telephone to seek confirmation of its estimation ofShell companies' sales tonnage. The applicant also refers to its statement that 'noprecise information was given; however, the precision of the sales figures on theFrench market belies that assertion. 846. As regards the alleged inconsistency in the Decision as to the degree of Shell'sparticipation in the price initiatives, point 20 of the Decision is concerned only withdemonstrating the collective nature of the price initiatives. Point 26 states that theapplicant was informed of those intitiatives, and point 48 states that it was informed of them and supported them. The Court would merely remark in that respect thatpoint 48 supplements but does not contradict point 26. 847. As the Court has already said, the documents produced by the Commissionestablish that the applicant participated in the price initiatives decided at themeetings between producers on 2 March 1983 and 11 August 1983 (see points 836to 840 above). Similarly, Appendix P59, which is a Shell document dated 28October 1983, shows that Shell was perfectly well aware of the initiative decidedfor 1 November 1983, designed to take PVC prices to a level of 1.90 DM/kg. Asregards the initiative envisaged for September 1982, it is true that the EuropeanChemical News had announced both the price initiative and its amount and dateas early as July 1982. However, the very wording of that article militates against theconclusion that the initiatives were taken individually. Thus it states, for example:'[PVC] producers are discussing a price increase for September and October (themanufacturer's price column in the table below reflects those planned targetprices). Indeed, as the Court has already held (see paragraph 649 above), thedocuments produced by the Commission support the conclusion that the initiativein question was the result of concerted action between producers in the sector. Thefact that Shell did not adopt the agreed target price until the beginning ofSeptember for implementation in October 1982 does not appear to be crucial inthose circumstances. Moreover, Appendices P34 and P39, emanating from ICI andDSM respectively, show that 'the price initiative continued into October. 848. In the light of all those considerations it is clear that, contrary to the applicant'sassertions, it was involved in the collusive mechanisms decided upon by the PVCproducers. The Commission has correctly established Shell's participation in theinfringement. 849. In those circumstances, the applicant's argument based on its commercial strategyat the beginning of the 1980s cannot succeed. Through its participation in theinfringement, the applicant was able to adapt its commercial behaviour byreference to its knowledge of the attitude of the other producers. (e) LVM Arguments of the applicant 850. The applicant begins by denying that it participated in producer meetings duringwhich prices and market shares were allegedly discussed, and submits that theCommission's evidence is clearly insufficient. First, the planning documents wereestablished nearly 30 months prior to the formation of LVM, mention of theapplicant's parent companies, DSM and SAV, having no probative value whateveras far as LVM was concerned. In addition, the statements by ICI and BASFidentifying LVM as a participant at the producer meetings were made subject to reservations. Finally, it is not correct to say that the applicant refused to reply inits letter of 28 January 1988 to the request for information of 23 December 1987under Article 11 of Regulation No 17; in any event, that does not prove itsparticipation in the meetings. 851. Secondly, as to the alleged quota system, the applicant argues that the onlydocument used against it by the Commission, namely the Atochem table, has noprobative value. In the applicant's submission, it contains sales figures that differsignificantly from actual sales. 852. Thirdly, as to sales monitoring, the applicant considers that the Solvay tables wouldhave probative value only if they were accurate, which, in its submission, they arenot. 853. Finally, concerning target prices and price initiatives, the applicant reiterates thateven the existence of concerted price initiatives has not been established. In reality,the applicant merely adapted intelligently to market conditions (see AppendicesP13, P21 and P29 to the statement of objections). Findings of the Court 854. As LVM was not formed until the beginning of 1983, the fact that the earlierdocuments produced by the Commission in support of its conclusions, such as theplanning documents, do not refer to LVM is irrelevant for the purpose of assessingthat company's participation in the infringement. For its part, the applicant cannotrely in support of its claims on Appendices P13, P21 and P29 to the statement ofobjections, which relate to facts prior to its creation and concern DSM. 855. LVM has been identified by ICI as a participant in the informal meetings betweenproducers (see paragraph 675 above), which the Commission has demonstrated tohave pursued an objective contrary to Article 85(1) of the Treaty (see paragraphs679 to 686 above). 856. The presence of the applicant at those meetings has been confirmed by BASF (seeparagraph 677 above). 857. Certain documents used by the Commission, rightly, to establish the existence ofjoint price initiatives, such as Appendices P57, P58 and P64, emanate from thatundertaking. 858. The Atochem table includes the name of the applicant and states a percentage oftarget sales allocated to it; moreover, the sales figures of that company which areshown there are close to actual sales figures (see paragraph 608 above). 859. The Solvay tables contain an express reference to LVM. Amongst the figuresmentioned which the Commission was able to verify, two concern that undertakingand correspond, in rounded form expressed in kilotonnes, to its actual sales figures(see paragraphs 625 and 628 above). 860. Those factors taken together show that the Commission was right to conclude thatthe applicant participated in the infringement. (f) Wacker Arguments of the applicant 861. The applicant maintains that the planning documents do not demonstrate that itparticipated in discussions, negotiations or meetings such as those alleged againstit. The information provided by ICI and BASF identifying it as a participant inmeetings between producers are neither precise nor reliable. 862. The applicant goes on to deny participating in either a quota system andcompensation mechanism or a price cartel. It argues that there is no document tosupport the Commission's allegations in that respect. Findings of the Court 863. Wacker has been identified by ICI as a participant in the informal meetingsbetween producers (see paragraph 675 above), which the Commission hasdemonstrated to have pursued an objective contrary to Article 85(1) of the Treaty(see paragraphs 679 to 686 above). 864. The presence of the applicant at those informal meetings has been confirmed byBASF (see paragraph 677 above). 865. Wacker's name appeared in the planning documents as an anticipated member ofthe 'new framework of meetings in the form of the initial 'W; at the time of thefacts, only Wacker had a company name beginning with that initial. 866. Many documents used by the Commission to establish the existence of joint priceinitiatives (see paragraphs 637 to 661 above), such as Appendices P2, P3, P8, P15,P25, P31, P32, P33, P47, P62 and P65, emanate from that undertaking. They referwidely to price initiatives, actions to increase prices decided upon and intensiveefforts in the industry to consolidate prices. 867. For the same reasons as those set out above (see paragraph 788), the Alcudiadocument refers indirectly to Wacker. 868. The applicant is mentioned in the Atochem table, which contains, albeit inaggregate form, the sales figures and percentage of target sales for the fourGerman producers (see paragraph 612 above). 869. The Solvay tables contain a statement of the applicant's sales figures, and thosefigures have not been challenged. 870. Those factors taken together show that the Commission was right to conclude thatthe applicant participated in the infringement. (g) Hoechst Arguments of the applicant 871. The applicant maintains that the planning documents do not demonstrate that itparticipated in discussions, negotiations or meetings such as those alleged againstit. The information provided by ICI and BASF identifying it as a participant inmeetings between producers are neither precise nor reliable. 872. The applicant goes on to deny participating in either a quota system andcompensation mechanism or a price cartel. It argues that there is no document tosupport the Commission's allegations in that respect. Findings of the Court 873. Hoechst has been identified by ICI as a participant in the informal meetingsbetween producers (see paragraph 675 above), which the Commission hasdemonstrated to have pursued an objective contrary to Article 85(1) of the Treaty(see paragraphs 679 to 686 above). 874. The presence of the applicant at those informal meetings has been confirmed byBASF (see paragraph 677 above). 875. For the reasons already set out above (see paragraph 788), the Alcudia documentrefers indirectly to Hoechst. 876. The applicant is mentioned in the Atochem table, which contains, albeit inaggregate form, the sales figures and percentage of target sales for the fourGerman producers (see paragraph 612 above). 877. The Solvay tables contain a statement of the applicant's sales figures, and thosefigures have not been challenged. 878. Moreover, even if the Commission was unable to obtain a Hoechst price tableenabling it to verify that that company had implemented the common priceinitiatives, Appendices P1 to P70 show that the German producers were involvedin that aspect of the cartel. Thus, in addition to documents such as Appendices P1,P6, P15, P19, P22, P26, P29, P32, P45 and P48, which refer to 'general initiativesintended to raise 'European prices as a whole or to 'industry initiatives, certainappendices refer more specifically to the German market and support theconclusion that the price initiatives were announced and applied there. That isapparent in particular from Appendices P23, P24, P26, P29, P30, P41 and P58. 879. Those factors taken together show that the Commission was right to conclude thatthe applicant participated in the infringement. (h) SAV Arguments of the applicant 880. The applicant argues that there is no proof of its participation in the alleged cartel.It states that three documents were relied upon by the Commission, none of whichhas probative value. 881. It submits, for example, that one of the planning documents, the Checklist, ismerely an internal ICI document setting out a unilateral proposal of ICI. Theapplicant was mentioned in it only as a PVC producer or as an undertakingconsidered by ICI as a future participant in the group of undertakings referred toin that document, and not as a participant in a cartel. There was nothing toestablish that such a proposal had been addressed to other producers, or that theyhad accepted it. The Response to Proposals could not be a response to theChecklist, because it was established earlier than the Checklist. In any event, theResponse to Proposals did not prove that SAV participated, since no name ismentioned in that document. 882. ICI's reply of 5 June 1984 to the Commission's request for information of 30 April1984 stated precisely the dates and locations of the meetings only for 1983; SAVceased all direct production and marketing activity in the PVC market with effectfrom 1 January 1983. Moreover, the reply was vague and subject to reservations;by contrast, the applicant had always denied participation in any meetings, andBASF did not identify the applicant as having participated in them (Decision, point26, note 10). Finally, if SAV participated in certain meetings, it was notdemonstrated that prices or volumes were discussed at those meetings. TheCommission had in any case misconstrued the statements of ICI, which has alwaysaffirmed that the meetings did not pursue an anti-competitive aim. 883. Regarding the Solvay tables, the applicant argues that the sales figures attributedto it on the French market, far from being accurate, as the Commission maintains,differ by some 8% to 25% from its actual sales. It has therefore not beendemonstrated that the applicant participated in any exchange of informationwhatsoever, constituting an infringement in itself, or, indeed, that it participated inany collusive arrangement of which the exchange of information was theinstrument. 884. Finally, the applicant maintains that its participation in the alleged cartel is in anyevent not plausible. Having arrived on the PVC market only shortly beforehand,in 1977, in the unfavourable context of a market burdened with overcapacity, it hadpursued an aggressive policy which was reflected in an increase in tonnages soldand market shares held. The applicant had no interest in fact in participating in acartel of the type alleged by the Commission. Nor could the latter take refuge inthe assertion that the meetings between producers had an anti-competitive aim inany event, precisely because there was no evidence, or no sufficient evidence, toshow that SAV participated in those meetings. Findings of the Court 885. The applicant has been identified by ICI as being a participant in the informalmeetings between producers (see paragraph 675 above), which the Commission hasdemonstrated to have pursued an objective contrary to Article 85(1) of the Treaty(see paragraphs 679 to 686 above). Although ICI gave exact dates and locations ofmeetings only for 1983, it indicated that informal meetings were held 'as fromAugust 1980, at the rate of approximately one a month (see paragraph 675above). The Commission was therefore right to regard ICI's response as evidenceof the applicant's participation in the infringement. 886. The applicant appears in the planning documents as an anticipated member of the'new framework of meetings. As the Decision shows, the planning documentsconstitute only a 'blueprint for a cartel and cannot therefore be regarded as proofof the applicant's participation in the infringement. Nevertheless, the fact that theapplicant is cited there constitutes an indication of such participation, bearing inmind the close correlation between the practices described there and those foundon the market in the following weeks (see paragraphs 662 to 673 above). 887. For the reasons set out above (see paragraph 788 above), the Alcudia document,which together with other documents confirms the existence of compensationmechanisms between PVC producers, refers indirectly to the applicant. 888. Regarding the Solvay tables, SAV has produced a table from its accounts to showthat the sales figures concerning it, that is to say those for the French marketduring the years 1980 to 1982, contain significant differences, of the order of 8% to 25%, in relation to actual sales. It is of course impossible to determine whetherthe amounts produced by SAV from its accounts have been calculated in the sameway as those appearing in the Solvay tables. However, in the absence of seriousdenials from the Commission, the Court must conclude that those tables cannot beregarded as evidence in respect of the applicant. 889. Although the Commission was unable to obtain a SAV price table enabling it toverify that that company had implemented the common price initiatives,Appendices P1 to P70 show that the French producers were involved in that aspectof the cartel. Thus, in addition to documents such as Appendices P1, P6, P15, P19,P22, P26, P29, P32, P45 and P48, which refer to 'general initiatives intended toraise 'European prices as a whole or to 'industry initiatives, certain appendicesrefer more specifically to the French market and support the conclusion that theprice initiatives were announced and applied there. That is apparent in particularfrom Appendices P21, P23, P24, P30, P31 and P38. 890. Two documents refer to the aggressive attitude of French producers on price, butthat is not sufficient to invalidate the Commission's conclusions. First, theCommission took account of those documents both in its examination of the factsand in its legal assessment (see paragraph 801 above). Secondly, the fact that theapplicant did not on occasion implement a planned price initiative does not affectthe Commission's conclusion; more particularly concerning the undertakings forwhich the Commission was unable to obtain any price table, it restricted itself tostating that those undertakings had in any event participated in the meetingsbetween producers whose purpose included the fixing of price objectives (seeabove, paragraph 774 et seq.), and not the actual implementation of thoseinitiatives (Atochem, paragraph 100). 891. In the light of all those considerations, the Court finds that the documentsproduced by the Commission are sufficient to establish that, contrary to what theapplicant maintains, it participated in the infringement. However, the Court muststill assess whether the observations made above, especially with regard to theSolvay tables, affect the Commission's conclusions as to the duration of theapplicant's participation in the infringement. (i) Montedison Arguments of the applicant 892. The applicant begins by pointing out that it is not mentioned either in the planningdocuments or in the Atochem table. 893. Nor, in its submission, does the evidence against it have probative value. 894. First, the fact that it was identified by ICI and BASF as having participated in atleast some of the meetings does not reveal anything reprehensible. Moreover, onlyMontedison, and not Montedipe, was cited by ICI and BASF, whereas Montedisonhad ceased PVC production on 1 January 1981; that means that its participationhad ceased before that date. 895. Secondly, the applicant argues in relation to exchanges of information concerningthe Italian market, which was, moreover, public information, that the Commissionfailed to refer to the footnotes of the document on which it relies, which expresslymentioned the lively competition in that market. 896. Thirdly, as regards participation in a compensation system, the applicant maintainsthat the Alcudia document has no probative value. Montedison denies that such amechanism has ever been put into operation; no Italian undertaking had adheredto it individually, as is attested by the fact that the document in question refers onlyin a general manner to Italian producers. Even if such a mechanism had actuallybeen put into operation, it would only have been one of those rationalisationmeasures taken under bilateral agreements which the Commission had itselfadvocated as a replacement for the crisis cartel. 897. Fourthly, the applicant observes that none of the price initiatives identified by theCommission concerned Montedipe, which was then the owner of the undertaking.In any event, the unlawful acts committed consisted only in seeking an ideal pricewhich would have enabled producers to reduce their losses. However, the priceactually charged by Montedipe was always significantly below the target price andalways diverged from the market price, which clearly proves that the applicantacted entirely independently. Findings of the Court 898. As the applicant has stated, Montedison is not referred to either in the planningdocuments or in the Atochem table, which concerns a period after Montedisonwithdrew from the PVC market. That fact emerges, inter alia, from points 7 and 13of the Decision. 899. Montedison has been identified by ICI as a participant in the informal meetingsbetween producers (see paragraph 675 above), which the Commission hasdemonstrated to have pursued an objective contrary to Article 85(1) of the Treaty(see paragraphs 679 to 686 above). 900. Its presence at the meetings has been confirmed by BASF (see paragraph 677above). 901. It is true that ICI and BASF referred to Montedison rather than Montedipe, whichtook over Montedison's PVC production activity on 1 January 1981. It does notfollow, however, that Montedison did not participate in the infringement after thatdate. 902. Although Montedison transferred production activities to Montedipe in January1981, it did not abandon all activity in the PVC sector until 1983 (see, in particular,the first paragraph of point 13 of the Decision). Moreover, in reply to a questionfrom the Court, the applicant acknowledged that throughout that period it held thewhole of Mondedipe's capital either directly or through companies controlled byMontedison. Finally, ICI's note of 15 April 1981, which helps prove the existenceof systems for monitoring sales volumes between producers, is the transcription ofa message sent by the director of Montedison's petrochemical division (seeparagraphs 599 to 601 above), which proves that, contrary to what it alleges,Montedison was involved in the infringement. 903. For the reasons set out above (see paragraph 788) the Alcudia document, whichis one of the documents which serve to establish the operation of compensationmechanisms between PVC producers, refers indirectly to Montedison. Theapplicant cannot claim that such a mechanism was advocated by the Commissionin July 1982, on the occasion of contacts between the Commission and nineEuropean producers concerning the restructuring of the petrochemical sector: notonly did the Commission make clear its refusal on that occasion to countenance anyprice or sales quota agreements between producers, but those contacts took placeafter the implementation of the compensation mechanism whose existence theCommission has demonstrated in this case. 904. In addition, ICI's note of 15 April 1981 refers to the quota mechanism; that noteis the transcription of a message from Mr Diaz, former managing director ofMontedison's petrochemical division, to ICI (see paragraphs 599 to 601 above). 905. Concerning the Solvay tables in relation to the Italian market (Appendices 33 to41 to the statement of objections), the applicant cannot, for the reasons alreadyindicated (paragraphs 629 to 635 above), claim that the sales figures containedtherein could have been based on public information. Even if the second footnoteto the document comprised by Appendix 34 refers to lively competition, that doesnot explain how Solvay was aware of the sales figures of each of its competitors.On that point, it should be noted that the first footnote to that document states:'The sharing of the national market between the various producers for 1980 hasbeen indicated on the basis of the exchange of data with our colleagues (seeparagraph 629 above). 906. As to the price initiatives, which the Commission has shown to have been concertedinitiatives adopted in breach of Article 85(1) of the Treaty (see paragraphs 637 to661 above), the applicant has produced a table in which it compares the target prices alleged by the Commission and the prices actually charged by Montedison(point 10 of the application). It deduces from the differences between them thatit cannot have participated in the price initiatives. At no time, however, does theapplicant state either the source of the figures which it claims constitute the pricesactually charged by it, or the precise date on which those prices actually chargedwere determined. The table shows in any event that the prices actually charged bythe applicant, assuming them to be accurate, were lower than the target prices, butthe Commission has always acknowledged in that respect that the undertakings didnot succeed in achieving the target prices. In common with other producers, theapplicant has not been accused of implementing price initiatives, since theCommission has not been able to obtain pricing documents from the applicant, butis accused only of participating in informal meetings between producers duringwhich the fixing of target prices was decided upon (see paragraphs 774 to 777above). 907. Moreover, Appendices P1 to P70 show that Italian producers were involved in thataspect of the cartel. Thus, in addition to documents such as Appendices P1, P6,P15, P19, P22, P26, P29, P32, P45 and P48, which refer to 'general initiativesintended to raise 'European prices as a whole or to 'industry initiatives, certainappendices refer more specifically to the Italian market and support the conclusionthat the price initiatives were intended to apply in Italy even if the planned increaseoccasionally failed to materialise, thereby arousing criticism from competitors. Thatis apparent in particular from Appendices P9, P24, P26 and P28. 908. Those factors taken together show that the Commission was right to conclude thatthe applicant participated in the infringement. (j) Hüls Arguments of the applicant 909. The applicant argues that there is nothing to link it to the planning documents. Ithas not been proved, for example, that the Checklist, which was drawn up by athird party, was communicated to the applicant, or that the latter participated indrawing up the Response to Proposals and thus gave its approval to the allegedplans. The abbreviation 'H on those documents does not necessarily refer to Hüls;in 1984, Hüls and Hoechst were similarly-sized German producers, and in 1980 Hwas the initial of five PVC producers. The Commission's presumption is thusbaseless, especially as before 1985 the applicant was not called Hüls AG butChemische Werke Hüls AG, generally known under the abbreviation CWH. 910. Secondly, the applicant maintains that in the absence of minutes its participationin unlawful meetings and the regularity of that participation has not been proved. The statements of ICI and BASF do not have probative value, since those twoundertakings always denied that the meetings had an unlawful purpose. 911. Thirdly, the applicant's participation in price initiatives has not been demonstrated,in the absence of internal pricing documents of the undertaking. Nor can it bededuced from participation in meetings, precisely because the applicant did notattend unlawful meetings. 912. Fourthly, ICI's note of 15 April 1981 does not establish the applicant's participationin a quota system. Participation in the alleged compensation mechanism establishedto support that system has not been proved either. Moreover, the Atochem tabledoes not have probative value, since the figures stated there differ significantly fromactual sales. 913. Finally, the applicant maintains that the Commission has not proved the applicant'sparticipation in the alleged exchange of information. The Solvay tables have noprobative value in that respect. Findings of the Court 914. Hüls has been identified by ICI as a participant at the informal meetings betweenproducers (see paragraph 675 above), which the Commission has demonstrated tohave pursued an anti-competitive aim (see paragraphs 679 to 686 above). 915. The presence of Hüls' representatives at the meetings has been confirmed by BASF(see paragraph 677 above). 916. According to the planning documents, the 'Planning group of 6 was to becomposed of 'S, 'ICI, 'W, 'H and the 'new French company. After referringto the fact that ICI declined to confirm the identity of the undertakings thusreferred to, the Commission stated in its Decision (point 7) that 'from the contextand the list of proposed participants it is clear that ... H in all probability is Hüls,the largest German PVC producer (Hoechst, the only other possibility, was only aminor producer of PVC). 917. Hüls denies that 'H can refer to it because before 1985 its full title wasChemische Werke Hüls AG, and the corresponding initials CWH. That argumentcannot be accepted. In the planning documents, proposed members of the 'newframework of meetings are indicated by simple initials rather than by official andrecognised abbreviations. Both the Atochem table and ICI's reply to a request forinformation, which are dated 1984, refer to Hüls. Similarly, several appendices tothe applicant's initial application, dating from the beginning of the 1980s, showcommercial notepaper bearing the word Hüls in large letters and the abbreviation 'CWH in small letters. Thus, even if Hüls was not the applicant's officialdesignation, it was obviously what it was usually called. 918. As the Commission stated in its Decision, it appears that when the planningdocuments were drawn up Hüls was the largest producer and seller of PVC inGermany and one of the principal producers in Europe. That finding is confirmedby the applicants' replies to a question from the Court. Moreover, the other fourundertakings designated as prospective members of the 'Planning Group werealso the principal PVC producers in Europe in 1980. 919. For the reasons already set out above (see paragraph 788), the Alcudia document,concerning compensation mechanisms, refers indirectly to Hüls. 920. The applicant is referred to in the Atochem table, which contains, albeit inaggregate form, the sales figures and percentage of target sales for the fourGerman producers (see paragraph 612 above). 921. Hüls is also cited in the Solvay tables. Amongst the sales figures contained thereinwhich the Commission has been able to verify, three concern the applicant and areaccurate (see paragraph 627 above). 922. Even if the Commission was unable to obtain a Hüls price table enabling it toverify that that undertaking had implemented the common price initiatives,Appendices P1 to P70 show that the German producers were involved in thataspect of the cartel. Thus, in addition to documents such as Appendices P1, P6,P15, P19, P22, P26, P29, P32, P45 and P48, which refer to 'general initiativesintended to raise 'European prices as a whole or to 'industry initiatives, certainappendices refer more specifically to the German market and support theconclusion that the price initiatives were announced and applied there. That isapparent in particular from Appendices P23, P24, P26, P29, P30, P41 and P58. 923. Those factors taken together show that the Commission was right to conclude thatthe applicant participated in the infringement. (k) Enichem Arguments of the applicant 924. The applicant argues that it has not been established that it participated in any ofthe manifestations of the cartel. 925. First, it bore no responsibility for the cartel's origins. It did not participate indrawing up the planning documents, and the mere fact of being cited without itsknowledge by other undertakings intending to invite it to participate in meetings cannot give rise to such responsibility. Nor, in its submission, has it been establishedthat the Response to Proposals actually constitutes the response of the persons towhom the Checklist was supposed to be sent. 926. Secondly, concerning the producer meetings, the applicant notes that ICI andBASF have cited the names of Anic or Enichem, whereas from October 1981 untilFebruary 1983 there was no operating company corresponding to those nameseither in whole or in part. In any event, the Commission should also have provedthe identity of the participants and the frequency of their participation. 927. Thirdly, Enichem argues that there is no proof of its participation in the priceinitiatives. The absence of internal company documents on pricing cannot be takento mean, as the Commission would have it, that those documents were hidden ordestroyed on account of their compromising nature; such reasoning, in any eventpurely speculative, infringes the principle that the burden of proof is on theCommission. Moreover, there was nothing to establish even the applicant'sparticipation in the meetings which, according to the Commission, preceded theprice increases. On the contrary, many documents show that Enichem adopted anaggressive pricing policy on the Italian market. 928. Fourthly, concerning quotas, the applicant notes that the only document mentioningEnichem or Anic is the Atochem table. Not only is that document not sufficient onits own to establish the applicant's participation, but it is of no evidential value,given the significant disparity between the sales figures cited in it (always above14%) and the actual figures (12.3%). In those circumstances, the finding thatmarket shares changed significantly during the period covered by the inquirydemonstrates that there was no agreement on quotas. 929. Fifthly, concerning the monitoring of sales, the only evidence of Enichem'sparticipation was the Solvay tables. In the applicant's submission, those have noprobative value. 930. Enichem concludes that, in the absence of any evidence against it, it is of littleimportance that items of evidence are to be considered as a whole rather than inisolation. In any event, the four documents in which the applicant's name appears(Appendices 3, 10 and 34 and the statements of BASF and ICI) are too isolatedto establish the applicant's continuing adhesion to a complex cartel, especially asEnichem's aggressive policy has been demonstrated. Findings of the Court 931. Anic and Enichem, to which Anic's conduct has been imputed, have been identifiedby ICI as participating in the meetings (see paragraph 675 above), whose anti-competitive purpose has been established by the Commission (see paragraphs 679to 686 above). 932. The presence of Anic and Enichem at the meetings has been confirmed by BASF(see paragraph 677 above). 933. Enichem nevertheless argues that, because there was no PVC operating companybearing the name of either Anic or Enichem between October 1981 and February1983, the replies of ICI and BASF have not established its participation during thatperiod. That argument cannot be accepted. As the Commission has pointed out,the group to which the applicant belongs did not withdraw from the PVC marketduring that period but transferred all its activities in that sector to a joint venture,all of whose PVC activities derived from the ENI group and were taken over by thelatter in February 1983. Moreover, the Solvay tables for 1982 concerning the Italianmarket show that that joint subsidiary carried on the participation in theinfringement. Finally, Anic itself had not disappeared, since it was not until the endof 1982 that it transferred to the joint venture company in question the capital ofanother company of the ENI group, SIL, itself the owner of PVC production sitesin Italy. 934. Anic is one of the undertakings referred to in the planning documents. Bearing inmind the close correlation between the practices described in those documents andthose found on the PVC market in the following weeks, those documents, even ifthey were internal ICI documents as the applicants maintain, constitute evidenceof the applicant's participation in the infringement. 935. The Atochem table, which helps demonstrate the existence of a sales quotamechanism, states the name of the applicant, its sales figures for the first quarterof 1984 and a percentage sales target allocated to it. The applicant's challenge ofthe sales figures concerning it has already been examined and dismissed (seeparagraph 615 above). 936. For the reasons already set out above (see paragraph 788), the Alcudia document,concerning compensation mechanisms between producers, refers indirectly toEnichem. 937. The applicant's argument that producers' market shares changed significantlyduring the period of the inquiry, which would be incompatible with a quotamechanism, is based on a mere reference to the 'real facts (reply, p. 23) and isnot supported by any evidence. In any event, as stated in the Decision itself, thedocuments establishing the existence of compensation mechanisms betweenproducers also support the conclusion that those mechanisms did not functioncorrectly (see paragraphs 588 and 597 above). Finally, in the particular case ofEnichem, the change in market shares does not appear to be a crucial factor, given the numerous restructurings of that group during the period of the infringement,through the acquisition of competitors' businesses in the PVC industry. 938. The Solvay tables state the applicant's name and its sales in the Italian market. Thetable attached as Appendix 34 to the statement of objections contains the followingcomment: 'The sharing of the national market between the various producers for1980 has been indicated on the basis of the exchange of data with our colleagues.... Since the cartel originated in the planning documents, which are dated August1980, it was precisely for that year that the exchange could be effective for the firsttime (see paragraph 629 above). 939. The applicant also argues that the Commission should have specified whichundertakings participated in each of the meetings, thereby establishing thefrequency with which each participated. However, the frequency of an undertaking'spresence at producer meetings does not affect the fact of its participation in theinfringement, but the extent of that participation. Moreover, to require theCommission to establish the frequency of each undertaking's participation wouldmake it impossible in practice to penalise a cartel, save in cases where minutes orwritten records of unlawful meetings, mentioning the participants' names, arefound. Where, in their replies to requests for information, ICI and BASF statedthat the undertakings named by them had participated more or less frequently inthe meetings (see paragraphs 675 and 677 above), the Commission duly tookaccount of that (especially in the third paragraph of point 8 and the thirdparagraph of point 26 of the Decision). It also took that fact into considerationwhen determining the level of the fines (point 53 of the Decision), subject toexamination of the situation of undertakings identified either as ringleaders or aslimited participants. Indeed, if the Commission had been able to obtain proof ofthe participation of each of the undertakings at all the producer meetings in thecourse of which, for nearly four years, concerted price initiatives and sales volumemechanisms were fixed, the fines imposed, which do not exceed ECU 3 200 000,would appear low in proportion to the severity of the infringement. 940. Finally, Appendices P1 to P70 indicate that the Italian producers were involved inthe price initiatives. Thus, in addition to documents such as Appendices P1, P6,P15, P19, P22, P26, P29, P32, P45 and P48, which refer to 'general initiativesintended to raise 'European prices as a whole or to 'industry initiatives, certainappendices refer more specifically to the Italian market and support the conclusionthat the price initiatives were intended to apply in Italy, even if the plannedincrease occasionally failed to materialise, thereby arousing criticism fromcompetitors. That is apparent in particular from Appendices P9, P24, P26, P28 andP58. 941. Those factors taken together show that the Commission was right to conclude thatthe applicant participated in the infringement. D  Attribution of liability for the infringement and identification of the addressees ofthe Decision 1. Attribution of liability for the infringement Arguments of the applicants 942. Elf Atochem challenges the grounds in the Decision relating to Elf Atochem's notbeing responsible for the activities of PCUK, a company the greater part of whosechemical business was transferred to Atochem on the latter's formation in 1983.The grounds relied on the consideration that Elf Atochem 'is clearly liable for AtoChimie/Chloe/Orgavyl (sixth paragraph of point 42 of the Decision), and not onthe rule whereby, when an undertaking transferring a business continues to exist asa distinct entity after the transfer, the transferee undertaking does not bear liabilityfor possible anti-competitive actions of the transferor prior to the transfer. 943. DSM notes that on 1 January 1983 the PVC business of DSM NV was transferredto LVM, a joint subsidiary of DSM NV and EMC Belgique SA, and that LVM hasbeen held liable for its own actions. In this case, therefore, it is in relation to theperiod prior to that date that the question of liability for the infringement arises.By a document of 19 December 1984, DSM Kunststoffen BV, a wholly-ownedsubsidiary of DSM NV, was created. The rights and obligations previously attachingto the plastics division of DSM NV were transferred to it. Although DSMKunststoffen was an autonomous subsidiary of DSM NV, it was nevertheless to thelatter that liability for the infringement was attributed. 944. By so doing, the Commission misapplied Community law. In DSM's submission, theprinciple is that where rights and obligations, and also economic activities to whichthe alleged infringement relates, have been transferred to another undertaking, theinfringement must be attributed to that other undertaking, the successor in law ofthe first, and therefore the addressee of the decision (CRAM, paragraphs 6 to 9;Case T-38/92 AWS Benelux v Commission [1994] ECR II-211, paragraph 30). Thedecisive factor as far as attribution of liability for an infringement is concerned isthe autonomous conduct of the undertaking in the market, and not its legalstructure (Case 48/69 ICI, paragraph 133; Case T-11/89 Shell v Commission [1992]ECR II-757, paragraphs 311 and 312). The applicants have always insisted thatDSM Kunststoffen acted independently, without being contradicted by theCommission, with whom the burden of proof rested (AEG, paragraph 50). For theperiod running from the beginning of the presumed infringement to the beginningof 1983 the infringement should therefore have been imputed to DSMKunststoffen. 945. Montedison states that it is only an intermediary between the holding company andthe operating company, since it ceased PVC production on 31 December 1980. During the two years which followed, that production activity was carried on by the Montedipe subsidiary, and in 1983 that branch of the undertaking came definitivelyunder the control of Enichem. The Commission has never demonstrated thatMontedipe did not operate independently of Montedison. 946. Enichem observes that the Commission proceeded on the basis that, in order toassign liability for an infringement, it was necessary first to identify the undertakingwhich committed it, then to determine what happened; if the undertaking whichcommitted the infringement merely transferred the PVC branch of its business toa third party but remained in existence as an independent legal person, it wouldremain liable for the infringement; if, on the other hand, the undertakingcommitting the infringement were absorbed by another undertaking and therebyceased to exist, it would be the acquiring company that assumed liability for pastinfringements. The applicant maintains that that argument is based on a hybridconception of an 'undertaking, depending on whether a legal or economiccriterion is used. 947. Enichem states that both its own PVC business and the PVC sector in Italygenerally underwent profound change during and after the period covered by theinquiry. 948. Thus, the company now called Enichem Anic, to which the Decision should havebeen sent, had a PVC production business until the end of 1981, and again betweenthe beginning of 1983 and the transfer of the business to EVC, a joint subsidiarycreated in October 1986 by Enichem and ICI. In the interval, the company whichoperated on the PVC market was Enoxy, a joint subsidiary created by ENI and theAmerican company Occidental. 949. During the whole of that period, however, Enichem, under various names, actedmerely as the holding company for the Italian State's share in the various operatingcompanies which succeeded one another in the PVC sector. 950. Finally, the business activities in the PVC sector which were tranferred to EVC in1986 were carried on, during the period examined by the Commission, by a numberof independent undertakings (Anic; Occidental; Montedison, the PVC business ofwhose subsidiary Montedipe was transferred in March 1983 to Enoxy, which in thatsame month became a wholly-owned subsidiary of Enichem on the transfer byOccidental of its shares; Sir, whose business was transferred to the ENI group inDecember 1981 and Rumianca, a subsidiary of Sir, whose chemical activities werealso transferred to the ENI group) which all continued to exist as legal persons. 951. However, in the light of paragraph 43 of the Decision, it appears that theCommission attributed to the applicant, Enichem, liability for the infringementscommitted during the inquiry period, and thus by all the undertakings, including Sir,Rumianca and Enoxy (but with the exception of Montedipe). Sir and Rumiancawere part of the Sir Finanziaria group, which still exists and should therefore continue to bear the liability for the participation of its former subsidiaries. Similarly, Occidental, which continues to exist as a legal person, should be jointlyand severally liable for the infringement during the period from December 1981 toFebruary 1983, during which it jointly managed Enoxy; instead the Commissionattributed no liability to Occidental, in breach of the principle of non-discrimination. In fact Enichem Anic can be regarded as liable only for theinfringements committed by Anic until the end of 1981 and by Enoxy Chimica sinceFebruary 1983 (Suiker Unie, paragraphs 74 to 88; CRAM, and Enichem Anic,paragraph 228 et seq.). Findings of the Court 952. It is clear first of all that Elf Atochem does not challenge the conclusion which theCommission reached not to impute to it liability for the actions of PCUK, butmerely the reasoning underlying that conclusion. In those circumstances,examination of the plea raised by this applicant could not lead to even a partialannulment of the operative part of the Decision. Therefore, in the absence of anyinterest of the applicant in bringing an action, the plea must be dismissed. 953. The case-law shows that, where an infringement is found to have been committed,it is necessary to identify the natural or legal person who was responsible for theoperation of the undertaking at the time, so that it can be made answerable for it. Where, however, between the infringement and the time when the undertaking inquestion must answer for it, the person responsible for the operation of thatundertaking has ceased in law to exist, it is necessary, first, to establish thecombination of physical and human elements which contributed to the infringementand then to identify the person who has become responsible for their operation, soas to avoid the result that because of the disappearance of the person responsiblefor its operation when the infringement was committed the undertaking may evadeliability for it. 954. The rules set out by the Commission in the second paragraph of point 41 of theDecision comply with those principles. 955. It is therefore necessary to examine the Commission's application of thoseprinciples in the cases of DSM, Montedison and Enichem in turn. 956. DSM's argument relates only to the attribution of the infringement to DSM, andthus to the period before the creation of LVM (see paragraph 943 above). 957. In this case, unlike the situations which were examined in the judgments relied onby the applicant, there is no dispute either that DSM is the undertaking whichcommitted the infringement before the creation of LVM, or that, despite thereorganisation which it carried out by transferring its plastics business to subsidiaries after the facts at issue, DSM exists at law. The Commission wastherefore right, applying the principles referred to above, to hold DSM liable inrespect of the period at issue. 958. In those circumstances, the transfer of the branch of business activity to subsidiarieshas no impact on the determination of the undertaking responsible for theinfringement. 959. The plea by DSM must therefore be dismissed. 960. It is well established that the fact that a subsidiary has separate legal personalityis not sufficient to exclude the imputation of its conduct to the parent company,especially where the subsidiary does not determine its market conductindependently but in all material respects carries out the instructions given to it bythe parent company (Case 48/69 ICI, paragraphs 132 and 133). 961. In this case, Montedison has confirmed that it held all the capital of Montedipe andMontepolimeri, with the result that those companies must be regarded asnecessarily following a policy laid down by the bodies which, under its constitution,determine the policy of the parent company (AEG, paragraph 50). 962. The plea by Montedison must therefore be dismissed. 963. Enichem's plea comprises two claims concerning liability for the infringment. Thefirst relates to liability for the actions of two companies, Sir and Rumianca,committed before their incorporation into the group to which the applicant belongs. The second relates to liability for acts committed by Enoxy between January 1982and February 1983. 964. In the first place, the applicant claims, the Commission has imputed to it liabilityfor acts of Sir and Rumianca, whose PVC businesses were acquired by the ENIgroup in December 1981 through the medium of Anic, but, as the former parentcompany of those two companies still exists, it should have borne responsibility forthe infringement. In support of its argument, the applicant refers to point 43 of theDecision, where it is stated that 'Enichem comprises the Italian State-ownedchemical sector formerly operating as Anic and that Enichem must therefore'take the responsibility for the activity of Anic and thus for all the companiesconnected with it. 965. However, it does not appear that the Commission held Enichem responsible for theactivities of Sir and Rumianca before their integration into the group including theapplicant. 966. First, Sir and Rumianca are not referred to in the Decision. Since no complaintis made against them, no responsibility for unlawful actions by them can have been imputed to the applicant. Paragraph 43 of the Decision can at most mean that thePVC activities of Sir and Rumianca, particularly for the purposes of calculatingmarket share with a view to determining the amount of the fines, are not imputedto the applicant until after the day on which they were incorporated into Anic. Itdoes not support the conclusion that responsibility for any unlawful practices by Sirand Rumianca before that incorporation was imputed to Enichem. 967. Secondly, the documents before the Court and the applicant's replies to the Court'squestions at the hearing show that on 29 December 1981 ENI and Occidentalcreated a joint company, Enoxy, to which all the PVC sector controlled by ENIthrough the intermediary of Anic was transferred; on its side, Occidentaltransferred to Enoxy activities other than PVC. In February 1983, ENI took backthe share of Occidental in the capital of Enoxy; some days later, ENI transferredall its shares in the Enoxy group to Enichimica SpA (now Enichem SpA). 968. In those circumstances, the applicant accuses the Commission, first, of imputing toit responsibility for the actions of Occidental, the other parent of Enoxy. However,that complaint consists of a mere affirmation, which is not supported by anythingin the Decision. 969. The applicant then complains that the Commission did not also hold Occidentalresponsible for the actions of Enoxy, even though it was one of the two parentcompanies. However, since the group to which the applicant belongs remainedpresent in the PVC market from January 1982 to October 1983, through a jointcompany to which it had transferred its business in the PVC sector, the fact thatthe Commission did not also take action against Occidental does not excluderesponsibility on the part of the group to which the applicant belongs (AhlströmOsakeyhtiö, paragraph 197). 970. In those circumstances, the plea by Enichem must also be dismissed. 2. Identification of the addressees of the Decision Arguments of the applicants 971. DSM argues, first, that the Commission committed an error of law in addressingthe Decision to DSM NV, rather than to DSM Kunststoffen. Responsibility for theinfringement committed before 1983 by DSM NV should be imputed only to DSMKunststoffen, a wholly-owned subsidiary of DSM NV created by a document of 19December 1984; it was to that company, therefore, that the Decision should havebeen addressed. 972. Secondly, the applicants maintain that they have been victims of discrimination. The Commission had accepted an argument similar to theirs on behalf of Shell (Decision, point 46). Conversely, the Commission treated them in the same wayas Enichem and Montedison, whereas the facts were not the same (Decision,paragraph 45). 973. Thirdly, the applicants maintain that the Commission failed to comply with the dutyto state reasons. Even if it was not obliged to reply to all the factual argumentsraised by the undertakings in question (ACF Chemiefarma, paragraph 77), it repliednevertheless to similar complaints made by other undertakings (Decision,paragraphs 45 and 46). The statement of reasons in respect of the applicants oughtmoreover to have been all the more detailed because the applicants had raised thatplea during the administrative stage (AWS Benelux, paragraph 27). 974. Enichem argues that, for a group of undertakings to be an appropriate addresseeof a decision, it must constitute a single unitary organisation of personal, tangibleand intangible elements which pursues, on a long-term basis, the objective, interalia, of producing and selling a given product (Shell, paragraphs 312 and 313). Inthis case, the company maintains, there is no proof establishing its role at the headof that group of companies (end of point 45 of the Decision). 975. In reality, as a holding company, Enichem did not assume any responsibility withregard to activities in the thermoplastics sector, including PVC. The companyargues that points 43 and 45 of the Decision are contradictory in that respect, sinceit cannot be maintained that Enichem is, at one and the same time, responsible inits capacity as the principal holding company of a group and the successor of theoperating company of the same group. 976. In reality, Enichem Anic, as it was called as from 27 May 1985, was the only legalperson capable of representing continuity between the various group companieswhich operated under various names in the PVC sector until, in 1986, the businesswas transferred to EVC, a joint subsidiary created with ICI. Enichem Anic (underits various names) managed the whole cycle of thermoplastics production and directmarketing in Italy, independently of Enichem. Moreover, all the companiesinvolved in the foreign marketing of Enichem Anic's products, including thesubsidiaries of Enichem International, which is not a wholly-owned subsidiary ofEnichem, acted on the basis of distribution contracts or agencies with EnichemAnic. Thus only Enichem Anic could have been the addressee of the decision. 977. In support of its view, the applicant observes that the decision of 24 November1987 taken pursuant to Article 11(5) of Regulation No 17 was addressed toEnichem Anic (at that time Enichem Base). Moreover, the investigation of 21January 1987 was carried out at the premises of that undertaking. If the statementof objections was sent to Enichem, that was only because the Commission believedthat that company was the operating company of the group, and not because it wasa holding company of the group. Finally, the applicant points out that Decision 86/398 in the polypropylene case was addressed to Anic SpA, that is to say toEnichem Anic, that having been the name of the company since 27 May 1985. Findings of the Court 978. Although, as the Commission has stated in point 44 of the Decision, an'undertaking within the meaning of Article 85(1) of the Treaty is not necessarilythe same as a company having legal personality, it is necesssary for the purposesof applying and enforcing decisions to identify an entity possessing legal personalityto be the addressee of the measure. 979. Since DSM is the sole perpetrator of the infringement and thus constitutes the onlycompany with legal personality to which the infringement is imputed, the questionof identifying the addressee does not arise. The addressee could only be DSM NV,the sole perpetrator of the infringement. 980. Since that conclusion follows from the direct application of the principles set outin point 44 of the Decision, the mention of those principles constitutes a sufficientstatement of reasons in the applicant's case. 981. Moreover, in the case of DSM a single undertaking, which continues to exist in law,committed the infringement. Neither Shell nor Enichem nor Montedison is in thesame position. Therefore, the allegedly different treatment accorded to those threeundertakings by the Commission when determining the addressee of the Decisioncannot constitute discrimination against DSM. 982. The pleas and arguments raised by DSM must therefore be dismissed. 983. In point 45 of the Decision, the Commission stated: 'Enichem and Montedisonhave claimed that the appropriate addressee of any Decision should be thecompany inside the group which is currently responsible for thermoplasticsactivities. The Commission notes however that in both cases the marketingresponsibility for PVC was shared by other companies of the group: for instance,while Enichem Anic SpA is responsible for Enichem's sales of PVC in Italy, itsinternational marketing operations are directed by the Zurich-based companyEnichem International SA and in each Member State PVC sales are undertakenby the appropriate national subsidiary of Enichem. The Commission considers itappropriate to address this Decision to the main holding company at the head ofthe Enichem and Montedison groups. 984. Montedison has confirmed that, during the period of the infringement, it held allthe capital of Montedipe and Montepolimeri. That being so, it appears superfluousto enquire whether the applicant was able to exercise a decisive influence on thecommercial behaviour of its subsidiaries (AEG, paragraph 50). 985. In those circumstances, the Commission was right to address the decision toMontedison. 986. As Enichem has acknowledged, the plea raised by that company 'constitutes notan end in itself, but the essential basis for further arguments concerning the amountof the fine, which was obviously calculated by reference to the turnover of theholding company, which was far higher than that of the operating company (reply,p. 15). In this case, it appears that, as it was entitled to do (Boehringer I, paragraph55; Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ vCommission [1983] ECR 3369, paragraphs 51 to 53), the Commission initiallydetermined the total fine, which it then divided between the undertakings byreference to the average market share of each and any attenuating or aggravatingcircumstances which might apply to any of them individually. Therefore, subjectto the application of Article 15(2) of Regulation No 17 fixing the maximum finewhich the Commission may impose, the turnover of the holding company was nottaken into account in determining the amount of the individual fine imposed on theapplicant. To that extent, the applicant has no interest in raising this plea. 987. Moreover, as point 45 of the Decision shows, Enichem Anic was only one of theoperating companies for PVC within the ENI group. It thus controlled productionestablishments in Italy and was in charge of marketing in Italy. Other companiesin the group, controlled through the intermediary of the Swiss company EnichemInternational SA, were however responsible for marketing outside that geographicalarea. It cannot therefore be accepted that a company such as Enichem Anic,representing only a part of the group's PVC business, must of necessity be the soleaddressee of the Decision. 988. It is undisputed, moreover, that the applicant is only a holding company, with nooperational activity. The applicant has confirmed that 'during the whole of theinquiry period, Enichem SpA [under various names] continued to play the role onlyof a holding company for the State share in the various successive operatingcompanies in the PVC sector (application, p. 57). 989. In such a situation, where large numbers of operating companies are active in bothproduction and marketing and are also designed to cover specific geographicalareas, for the Commission to address its decision to the group's holding companyrather than, as the applicant would have it, to one of its operating companies doesnot constitute an error in law. 990. It is true that in the polypropylene case the Commission sent the decision toEnichem Anic and not to the applicant. However, that is not sufficient to justifythe conclusion that the choice of the applicant as the legal person to whom theDecision is addressed is necessarily wrong. In the first place it has not beenestablished that at the material time the organisation of the ENI group in thepolypropylene sector was identical to that in the PVC sector. Secondly, and in any event, the fact that the Commission addressed the decision to a particular companyin one case cannot bind it in other cases. 991. The fact that a decision to request information was sent to Enichem Anic and thatan investigation procedure took place at that undertaking's headquarters is notdecisive as regards the identity of the addressee of the Decision, given that, underArticles 11 and 14 of Regulation No 17, any undertaking may be the subject of arequest for information or an investigation procedure. 992. The plea must therefore be rejected. III  The pleas concerning access to the file A  The conditions under which the Commission gave access to its file during theadministrative procedure Arguments of the parties 993. A number of applicants complain that the Commission gave them access to onlypart of its administrative file. 994. At the reply stage, relying on the judgments of the Court of First Instance in CaseT-30/91 Solvay [1995] ECR II-1775 and Case T-36/91 ICI, those applicants reiteratethe assertion made in their application that limited access to the file infringes anessential procedural requirement affecting the rights of the defence. They submitthat the mere possibility of the existence of exculpating documents is sufficient fora finding of an infringement of defence rights, which cannot be regularised by theCourt in the context of its review (T-30/91 Solvay, paragraph 98; T-36/91 ICI,paragraph 108). The Decision ought therefore to be annulled. 995. In its defence in the various cases, the Commission has stated that point 27 of theDecision sets out the reasons why it did not accede to the undertakings' requestsduring the administrative procedure for full access to the file. 996. Confirming the reasons thus given, it maintains that it gave proper access to itsadministrative file. 997. The Commission argues that the case-law does not grant an absolute right of accessto that file (VBVB and VBBB; Case C-62/86 AKZO v Commission [1991] ECRI-3359; Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECRII-389). To the extent that the applicants' plea constitutes a request for such fullaccess, therefore, the Commission maintains that it is unfounded. 998. The Commission argues that it is required to give access only to the whole of thedocuments on which it bases its conclusions. In this case, it did not only that butwent beyond those requirements by sending the undertakings further documents on3 May 1988 which, in its view were capable of being used in their defence (lastparagraph of point 27 of the Decision, in fine). 999. In certain cases, the Commission challenges the principle stated by the Court ofFirst Instance in Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711that it is required to comply with the principles it laid down in the Twelfth Reporton Competition Policy and therefore to disclose, in addition to the incriminatingdocuments, the documents in its administrative file, subject to certain reservations. 1000. The applicants have not demonstrated bad faith on the part of its staff. 1001. If there were documents of use to the defence in the file on other undertakings, theundertaking from which they emanated would have relied on them. 1002. Moreover, the applicants were authorised to exchange documents amongstthemselves, on the basis of reciprocal waivers of confidentiality, with the reservationthat the exchange should not involve sensitive commercial information exchange ofwhich might constitute a restriction of competition (third paragraph of point 27 ofthe Decision). 1003. The Commission refers also to the confidential nature of the documents comprisedin its administrative file. In accordance with both Article 214 of the Treaty andArticle 20(2) of Regulation No 17, it was required not to divulge internalcommercial documents of each undertaking. Moreover, the Commission supplieda list of documents contained in the file during the administrative procedure. 1004. The Commission considers that the undertakings ought, at the very least, to identifythe documents which they consider capable of being useful to their defence. 1005. In the rejoinder, the Commission argues that the judgments in Case T-30/91 Solvayand Case T-36/91 ICI confirm that there is no absolute right of access to the file. In particular, undertakings have no right of access either to documents containingbusiness secrets or other confidential information or to internal Commissiondocuments. It those circumstances, it was right not to divulge to the undertakingsthe commercial documents emanating from each of them. 1006. The Commission maintains that the distinction between incriminating andexculpating documents is crucial. Whilst lack of access to incriminating documentsentails only the elimination of those documents as a means of proof (Case T-37/91ICI, paragraph 71), lack of access to exculpating documents entails the illegality ofthe decision, as the Court cannot remedy an infringement of defence rights which occurred at the administrative stage of the procedure (Case T-30/91 Solvay,paragraph 98). 1007. However, in order to determine whether there are exculpating documents amongthose not divulged, it is not sufficient, the Commission maintains, merely to assertthat the possibility exists; there must be some examination of plausibility. In thiscase, in the absence of the particular circumstances at issue in ICI and Solvay,where the finding of infringement was based on parallel conduct rather than directevidence and the undertakings concerned by Article 85 of the Treaty were alsoaccused of abuse of a dominant position, the Commission maintains that there isnothing to show that there may have been exculpatory documents among those notcommunicated. 1008. The Commission submits, therefore, that mere failure to communicate documentsduring the administrative procedure is not sufficient to justify the annulment of theDecision. Findings of the Court 1009. The Court notes at the outset that Montedison has not raised any plea concerningaccess to the file in its application. 1010. It is common ground that during the administrative procedure the Commissiongranted access to only part of its administrative file. In addition to the documentsemanating from its own staff, each applicant had at its disposal all the documentson which the Commission based its conclusions and a series of other documents,sent by letter of 3 May 1988. 1011. The purpose of providing access to the file in competition cases is to enable theaddressees of statements of objections to examine evidence in the Commission's fileso that they are in a position effectively to express their views on the conclusionsreached by the Commission in its statement of objections on the basis of thatevidence. Access to the file is thus one of the procedural safeguards intended toprotect the rights of the defence. Respect for the rights of the defence in allproceedings in which sanctions may be imposed is a fundamental principle ofCommunity law which must be respected in all circumstances, even if theproceedings in question are administrative proceedings. The proper observance ofthat general principle requires that the undertaking concerned be afforded theopportunity during the administrative procedure to make known its views on thetruth and relevance of the facts, charges and circumstances relied on by theCommission (Case T-30/91 Solvay, paragraph 59, Case T-36/91 ICI, paragraph 69,Case T-37/91 ICI, paragraph 49, and the case-law cited therein). 1012. In the adversarial proceedings for which Regulation No 17 provides, it cannot befor the Commission alone to decide which documents are of use for the defence(Case T-30/91 Solvay, paragraph 81; Case T-36/91 ICI, paragraph 91). Havingregard to the general principle of equality of arms, the Commission cannot bepermitted to decide on its own whether or not to use documents against theapplicants, where the latter had no access to them and were therefore unable totake the relevant decision whether or not to use them in their defence (Case T-30/91 Solvay, paragraph 83; Case T-36/91 ICI, paragraph 93). 1013. Such an infringement of the rights of the defence is, moreover, an objective oneand does not depend upon whether the Commission's officials acted in good or badfaith (Case T-30/91 Solvay, paragraph 84; Case T-36/91 ICI, paragraph 94). 1014. In any event, the defence of one undertaking cannot depend upon the goodwill ofanother undertaking which is supposed to be its competitor and against which theCommission has made similar allegations. Since the Commission is responsible forthe proper investigation of a competition case, it may not delegate that task to theundertakings, whose economic and procedural interests often conflict. Consequently, in determining whether the rights of the defence were infringed, itdoes not matter that the impugned undertakings have been authorised to exchangedocuments. Such cooperation between undertakings, which cannot be taken forgranted, cannot in any case relieve the Commission of its own duty to ensure thatduring the investigation of an infringement of competition law the defence rightsof the undertakings concerned are respected (Case T-30/91 Solvay, paragraphs 85and 86; Case T-36/91 ICI, paragraphs 95 and 96). 1015. However, as the Commission has emphasised, access to the file cannot extend tointernal documents of the institution, the business secrets of other undertakings andother confidential information (BPB Industries and British Gypsum, paragraph 29). 1016. According to a general principle which applies during the course of theadministrative procedure and which is expressed in Article 214 of the Treaty andvarious provisions of Regulation No 17, undertakings have a right to protection oftheir business secrets. However, that right must be weighed against safeguardingthe rights of the defence (Case T-30/91 Solvay, paragraph 88; Case T-36/91 ICI,paragraph 98). 1017. In those circumstances, the Commission cannot use a general reference toconfidentiality to justify a total refusal to divulge documents on its file. Moreover,in this case it does not seriously maintain that all the information contained inthose documents was confidential. The Commission would therefore have beenable to prepare (or have prepared) a non-confidential version of the documents inquestion or, should that prove difficult, to have drawn up a sufficiently precise listof the documents concerned so as to allow the undertaking to determine, in thelight of full knowledge of the facts, whether the documents described could be relevant to its defence (Case T-30/91 Solvay, paragraphs 89 to 95; Case T-36/91ICI, paragraphs 99 to 105). 1018. In this case, no non-confidential version of the documents in question has beenprepared. Moreover, even if the Commission did in fact supply the applicants witha list of the documents in its file, that list was of no use to the applicants becauseit merely indicated in a general way the undertaking from which the correspondingpages of the administrative file came. 1019. In the light of all those factors, the Court finds that during the administrativeprocedure in this case the Commission did not give the applicants proper access tothe file. 1020. However, that is not sufficient of itself to warrant annulment of the Decision. 1021. An alleged infringement of the rights of the defence must be examined in relationto the specific circumstances of each particular case, because it is effectively theobjections raised by the Commission which determine the infringement which theundertaking concerned is alleged to have committed. It is therefore necessary toconsider whether the applicant's ability to defend itself was affected by theconditions in which it had access to the Commission's administrative file. In thatrespect, it is sufficient for a finding of infringement of defence rights for it to beestablished that non-disclosure of the documents in question might have influencedthe course of the procedure and the content of the decision to the applicant'sdetriment (Case T-30/91 Solvay, paragraphs 60 and 68; Case T-36/91 ICI,paragraphs 70 and 78; see also, in the area of State aids, Case 259/85 France vCommission [1987] ECR 4393, paragraph 13). 1022. If that were so, the administrative procedure would be defective and the Decisionwould have to be annulled. Any infringement of the rights of the defence occurringduring the administrative procedure cannot be remedied in the proceedings beforethe Court of First Instance, whose review is restricted to the pleas raised and whichcannot therefore be a substitute for a thorough investigation of the case in thecourse of the administrative procedure. If during the administrative procedure theapplicants had been able to rely on documents which might exculpate them, theymight have been able to influence the assessment of the college of Commissioners(Case T-30/91 Solvay, paragraph 98; Case T-36/91 ICI, paragraph 108). 1023. By letter of 7 May 1997, issued by way of measures of organisation of procedureand subject to the assessment of the pleas relied upon by the applicants, the Courtof First Instance decided to grant each of them access to the Commission's file,save for internal Commission documents and documents containing business secretsor other confidential information. It invited the parties to inform it of anyconfidential information which might still be in the file. Finally, the applicantsseeking access were invited to submit by 31 July 1997 precise and reasoned observations, as brief as possible, in order to show how, in their view, failure tocommunicate those documents might have affected their defence. They were tosubmit a copy of the documents to which they referred. 1024. None of the applicants raised any problem of confidentiality. 1025. To take account of the time needed by the Commission to consult undertakings notinvolved in order to ensure that documents emanating from them were not coveredby confidentiality, and in the light of a request from Counsel for BASF based oncompelling personal reasons, the Court extended the period granted to theapplicants to submit their observations on the documents which they had consultedto 31 August 1997, and then to 22 September 1997. 1026. As already stated, only Wacker and Hoechst did not respond to the Court'sinvitation and did not lodge observations at the Court Registry. At the hearing,Counsel for those two applicants indicated that personal constraints had preventedhim from consulting the Commission's file and submitting observations. The Courtnotes, however, that it was not at any time presented with a request for anextension of the period on that ground, and that Wacker and Hoechst did not atany time submit observations. In those circumstances, the Court considers thatthose two applicants have not shown that the failure to communicate documentsduring the administrative procedure infringed their defence rights. 1027. The Commission submitted its observations on 12 December 1997. 1028. In addition, as already stated, Montedison did not raise any pleas concerning accessto the administrative file. Therefore, there is no need to take account of theobservations submitted by that applicant. 1029. Accordingly, it is necessary to examine the observations submitted by the nine otherapplicants following the measure of organisation of procedure decided upon by theCourt. B  The observations lodged in the context of the measure of organisation of procedure Arguments of the applicants 1030. The nine applicants who validly submitted observations produced a series ofdocuments the failure to disclose which, in their submission, might have affectedtheir defence rights. 1031. A number of applicants argue that the Commission not only did not give themaccess to the file, but deliberately deleted certain passages of documents which it had communicated. Those passages contained comments which might havesupported the applicants' arguments. 1032. Some applicants also argue that, in view of the time which has elapsed, it is nolonger possible to examine properly the documents which they might haveconsulted. 1033. Finally, others comment that the documents to which they refer are alreadysufficient to show in what way their defence rights might have been affected, butthat other documents might also have been produced to support that conclusion. 1034. DSM and LVM also request that the Court order the production of the records ofthe Commission's investigations at the undertakings' premises. Findings of the Court 1035. By way of a preliminary observation, it should be noted that the purpose of thisreview is to determine whether the failure to disclose documents or extracts mighthave affected the applicants' defence. The fact that passages of documentssubsequently revealed were initially deleted by the Commission at the time of theadministrative procedure does not alter the scope of the Court's review. Anyinfringement of the rights of defence falls to be assessed objectively and does notdepend on the good or bad faith of Commission officials. 1036. Moreover, the applicants had nearly three months to consult the Commission's fileand submit their observations. Since it is for undertakings alleging incompleteaccess to the administrative file to show in what way their defence rights have beenaffected, something which they have had sufficient time to do, account can be takenonly of the documents which they have produced. It is not enough for theapplicants simply to refer to the fact that the list of documents referred to in, andannexed to, their observations is not exhaustive. 1037. Finally, the examination which must be carried out is an objective one, and mustbe made in the light of the conclusions reached by the Commission in its Decision. The fact that the documents are not recent is therefore no obstacle to determiningwhether there has been an infringement of the rights of the defence. 1038. In the circumstances of the case, the applicants' observations must be examinedsimultaneously. 1039. In that context, firstly, the applicants cannot rely on documents or extracts whichthey already had at the time of the administrative procedure. That applies inparticular to the documents annexed to the statement of objections and theCommission's letter of 3 May 1988. The very purpose of the measure of organisation of procedure decided upon by the Court was to examine whetherdocuments not disclosed to the applicants at the time of the administrativeprocedure might, had they been communicated, have affected the Commission'sconclusions. That reservation does not apply, however, to documents alreadycommunicated, where the applicants rely on extracts which have been deleted. Itis therefore necessary to exclude Annexes 9, 10, 11, 15, 21 and 23 to theobservations of DSM and LVM, Annexes 4 and 6 to the observations of ElfAtochem, Annex 134 to the observations of BASF, Annex 10 to the observationsof SAV, Annex 13 to the observations of ICI, Annexes 12, 15 and 26 to theobservations of Hüls, and Annexes 9, 26 and 28 to the observations of Enichem. 1040. Secondly, for the purposes of this examination, it is also necessary to exclude thedocuments and extracts relied on by the applicants where they concern a periodprior to the origin of the cartel or after the date of the end of the infringementused by the Commission in calculating the amount of the fine. For that purpose,it is not the date of the document which is important but the relevance of theextract relied upon by the applicants with regard to the period of the infringement. Accordingly, it is necessary to exclude Annexes 8, 16 to 18, and 23 to 29 to theobservations of DSM and LVM, Annexes 2 and 3 to the observations of ElfAtochem, Annexes 132 to 138, 141 and 142 to the observations of BASF, Annexes1, 2, 6 to 9, and 11 to the observations of SAV, Annexes 18, 25, 27 and 34 to theobservations of Hüls, and Annexes 1, 11, 15, 26, 32(4), 40, 45, and 54(2) and (3)to the observations of Enichem. 1041. Thirdly, certain documents relied on by the parties do not concern objections madeby the Commission. The failure to disclose them cannot therefore have affectedthe undertakings' defence. That applies to documents concerning the markets ofnon-member countries (see point 39 of the Decision, footnote 1) or sales of derivedproducts (particularly Annex 7 to the observations of Elf Atochem and Annexes 3and 4 to the observations of SAV). 1042. Similarly, the applicants mention a number of documents referring to priceinstructions given orally, that being evidence contradicting the Commission'sargument that the very absence of written instructions in respect of several of theproducers showed that they had 'something to hide. However, although theCommission noted the absence of documents concerning prices for certainundertakings and did not accept the argument that price objectives could not havebeen fixed in writing, it did not conclude that that absence proved the participationof those undertakings in the price initiatives (Decision, point 20). The documentscited by the applicants in that respect are therefore irrelevant. Moreover, theapplicants make only a partial reading of those documents, which expressly statethat oral instructions are to be supplemented by sending written tariffs (inparticular, Annex 30 to the observations of DSM and LVM and Annex 41 to theobservations of Enichem). 1043. It is therefore necessary to examine the other documents produced by theapplicants. 1044. In general, certain applicants emphasise the fact that the documents which theyproduce make no reference to the existence of an agreement or concerted practicebetween undertakings (Annexes 19 and 31 to the observations of DSM and LVMand Annex 135 to the observations of BASF). However, the fact that documentsare silent in that respect cannot be regarded as liable to alter the Commission'sconclusions based on documentary evidence. That applies in particular to pressreleases or letters sent by a producer to its customers announcing a price increase. Such documents cannot be expected to indicate that the increase was being madein concert with other producers. 1045. Similarly, the applicants refer to three internal Shell documents, headed 'businessplans, of 12 July 1982, 19 April 1983 and 4 November 1983 and covering theperiods 1982 to 1986, 1983 to 1987 and 1984 to 1987 respectively (Annexes 1 to 3to the observations of DSM and LVM, and Annexes 1 and 2 to the observationsof ICI). Apart from the fact that those documents were confidential at the timeof the administrative procedure, the fact that they do not mention the existence ofan infringement of Article 85 of the Treaty cannot be regarded as capable ofcalling into question the documentary evidence produced by the Commission. Bytheir nature those documents concern market forecasts. References to anticipated'competitive pressure or the 'underlying assumption of a fully competitivepricing policy cannot affect Commission conclusions based on subsequentdocuments drawn up at the time of the facts alleged and which establish theexistence of price initiatives in 1983 and 1984 in which Shell was one of theparticipants. 1046. Some applicants refer to the fact that a number of documents illustrate that therewas overcapacity on the market, that producers were incurring losses at therelevant time and that a number of them were being restructured (for example,Annex 139 to the observations of BASF and Annex 13 to the observations of Hüls). 1047. However, the Commission took full account of the state of the market and thesituation of the undertakings (Decision, points 5 and 36), including that prevailingwhen the amount of the fine was determined (second paragraph of point 52 of theDecision). Moreover, those circumstances are not sufficient to exclude theapplication of Article 85 of the Treaty (see paragraph 740 above). 1048. LVM and DSM refer to a handwritten document of 1983, which contained thetranscription of handwritten annotations to the planning documents (Annex 6 totheir observations). However, they do not explain how those annotations, whichhad been supplied to the applicants at the hearing before the Commission inSeptember 1988 (see paragraphs 503 to 505 above), are supposed to affect themeaning of the planning documents. 1049. The applicants then refer to documents which allegedly contradict directly theprobative value of those produced by the Commission in support of its conclusions. 1050. Thus, a number of documents are alleged to show that the word 'compensationdoes not have the meaning attributed to it by the Commission in the Decision (see,in particular, Annex 5 to the observations of Elf Atochem and Annex 11 to theobservations of ICI). However, the use of the same word in contexts which areclearly different does not throw doubt on the Commission's conclusions. Theexistence of a compensation mechanism, as identified by the Commission in theDecision, is expressly shown by the 'sharing the pain and Alcudia documents(paragraphs 588 to 593 above). That is also apparent both from the wording of theDSM document and from a comparison between that document and the two justreferred to (paragraphs 594 to 598 above). 1051. Elf Atochem also refers to a document showing trends in Shell's market share in1981 which it maintains are incompatible with a compensation system betweenproducers (Annex 1 to the applicant's observations). However, the Decision showsthat Shell was the one producer which did not participate in that mechanism andthat the Commission held it to have participated in the infringement only as from1982. 1052. DSM, LVM and Enichem also refer to tables attached to ICI's reply to a requestfor information (Annex 37 to the observations of DSM and LVM and Annexes 37to 39 of the observations of Enichem). Although that reply of 5 June 1984 wasattached as Appendix 4 to the statement of objections, the tables in question,containing ICI's internal price targets from September 1980 to December 1983, bynational market, had been removed. The applicants argue that those tables revealthe existence of price targets other than those identified by the Commission in itsDecision, and that this casts doubt on the collusive nature of the price initiatives. 1053. It should not be forgotten, however, that the tables in question were drawn up forthe purposes of the infringement procedure. The fact that ICI states that theywere its internal price initiatives cannot therefore affect the Commission'sconclusions in relation to the documents which it has produced. Apart from thequestion of the exchange rates used by Enichem to convert the price targetsdeclared by ICI (which were denominated in national currency) into German marks(the currency in which the initiatives are expressed in the tables annexed to theDecision), it should be noted that the applicants disregard the comments andreservations made by ICI itself in the preamble to those tables. Thus ICI indicated,in the first place, that the prices were those charged to 'second-ranking customersand, secondly, that the absence of any indication of a price initiative for a givenmonth did not mean that there had not been one, but that there was no longer anywritten record of it. Indeed, it appears that those tables fail to mention priceinitiatives which are expressly shown by documents emanating from ICI andannexed to the statement of objections. Moreover, the differences pointed out by Enichem are based on the indication by ICI of prices for 'second-rankingcustomers, but are contradicted if account is taken of the prices for majorcustomers, as indicated in the appendices to the statement of objections. 1054. Hüls refers to an ICI letter of 7 March 1983, which it alleges calls into question theinterpretation given to Appendix P45 to the statement of objections, of 6 April1983, referring to the two-stage price initiative of 1 April 1983 and 1 May 1983(Annex 11 to the observations of Hüls). That letter is alleged to show that ICIfixed its prices individually, with particular reference to market demand, runningthe risk of losing customers. 1055. With regard to that submission, the existence of the joint initiative in question hasbeen established by reference to a number of documents (in particular Appendices42 and P42 to P53 to the statement of objections), and not merely by reference todocument P45. Moreover, the Commission has established that there was ameeting of producers in Paris on 2 March 1983, during which both sales volumesand the price level were discussed. Hüls has also produced a telex from ICI of 4March 1983 (Annex 10 to the observations of Hüls), which shows that ICI decidedupon firm action to raise prices to DM 1.50 per kilogramme as from 1 April. Thus,two days after the Paris meeting, ICI decided upon a price rise the date and levelof which correspond to those of the initiative identified by the Commission in theDecision. Finally, another ICI telex of early March 1983 (Annex 19 to theobservations of Hüls) refers not only to the price initiative of 1 April 1983, but alsoto that of 1 May 1983 designed to raise the price to a minimum level of DM 1.65per kilogramme. That should also be compared with Appendix P43 to thestatement of objections, which is undated but, in the light of its content, must havebeen established before Monday 7 March 1983. That document already showedthat price initiatives had been decided upon as from 1 April and 1 May 1983, withmention of the target prices. 1056. In those circumstances, the ICI letter of 7 March 1983 signed by the ICIrepresentative at the producer meetings, far from casting doubt upon theCommission's conclusions, supports them. Even if the author has doubts as to thatinitiative's chances of success, bearing in mind the failure of the previous initiativeof 1 January 1983, also identified by the Commission in its Decision, that does notalter the fact that it was the result of agreement between the producers in Parisfive days earlier. 1057. DSM, LVM (Annex 30 to their respective observations) and Hüls (Annex 20 to itsobservations) similarly rely on an ICI document of 19 April 1983 allegedlyestablishing that that undertaking became aware of the price initiative only in thelight of information obtained on the market. However, the applicants ignore thefact that as early as the first days of March, that is to say immediately after theproducers met in Paris on 2 March 1983, ICI was already informed of the date and level of the initiative of 1 May 1983 (paragraph 1055 above). Moreover, thedocument of 19 April 1983 itself refers to an earlier letter of 10 March 1983. 1058. Enichem produces a series of documents which it considers cast doubt on theCommission's conclusion that the initiatives were fixed in German marks to besubsequently converted into national currency. That discussion is, however, of nopractical consequence. In the first place, Appendices P1 to P70 show thatEuropean target prices were in fact agreed in German marks, and the applicant hasitself relied on extracts from numerous documents confirming that that was so (forexample, Annexes 2 and 36 to its observations). Moreover, it is obvious that, forthe purposes of their implementation, those prices were to be converted intonational currency. Finally, the Commission has never claimed that the priceinitiatives had the effect of ensuring that prices actually charged on each nationalmarket were identical. 1059. Certain documents are alleged to show that undertakings were informed of otherproducers' price initiatives by their customers or the trade press (Annexes 31 and33 to the observations of DSM and LVM, Annex 140 to the observations of BASF,Annexes 9 and 33 to the observations of Hüls, and Annexes 3 to 6 and 10 to 12 ofthe observations of Enichem). However, those documents do not support theconclusion that the undertakings were informed of the existence of a price initiativeonly by those means. On the contrary: they are consistent with the idea that theapplicants sought to verify with their customers or through the trade press whethertheir competitors had in fact announced a prices increase and whether they hadimplemented it on the date anticipated  which is also shown by the documentsalready communicated in Appendices P1 to P70. Taking account of the fact thatthose initiatives were often not followed at the required level, that informationallowed each undertaking above all to satisfy itself that an initiative was beingfollowed and to adopt its policy with regard to the success or failure, in whole orin part, of an initiative. 1060. The other documents relied on by the applicants are alleged to demonstrate livelycompetition in the PVC market during the infringement period, that being whollyincompatible with the Commission's conclusions. In particular, the applicants referto documents which identify 'aggressive competitors, or which refer to thepresence of economic conditions favourable or unfavourable to a price increase,that being alleged to signify that the initiatives were not the result of collusion butdecided unilaterally by reference to the state of the market. 1061. Those documents are not intended directly to cast doubt on others supplied by theCommission in support of its conclusions but to demonstrate the existence of livelycompetition incompatible with those conclusions. 1062. The Decision shows, however, that those circumstances were fully taken intoaccount. Thus the Decision does not claim that prices increased consistently during the infringement period, or even that they remained stable during that period. Onthe contrary, the tables annexed to the Decision show that prices did not cease tofluctuate, reaching their lowest level during the first three months of 1982. TheCommission thus expressly recognised that the price initiatives had met with limitedsuccess and were occasionally regarded as failures (Decision, points 22 and 36 to38). It also indicated some of the reasons for those results: in addition to factorsoutside producers' control (anticipated purchases by consumers, imports from non-member countries, fall in demand, especially in 1981 and 1982, special discounts ...),it found that certain producers sometimes gave preference to their sales volumesto the detriment of their prices (Decision, points 22 and 38) and that, given thecharacteristics of the market, it would have been futile to attempt concerted priceinitiatives unless conditions were favourable to an increase (Decision, point 38). Nor did the Commission ignore the existence of 'aggressive conduct on the partof some undertakings (Decision, point 22). Likewise, it acknowledged that the'sharing the pain, Alcudia and DSM documents, whilst evidencing the existenceof a compensation mechanism between producers, also supported the conclusionthat those mechanisms did not function correctly (Decision, point 11). It was in thelight of those considerations as a whole that the Commission determined theamount of the fine to be imposed on the applicants. 1063. Moreover, both Appendices P1 to P70 and the documents sent by the Commissionto the parties in May 1988 already supplied a plentiful documentary basis enablingthe applicants to argue, as indeed they have done, the existence of thecircumstances which they allege today. 1064. Finally, it should be noted that, apart from the extracts relied on by the applicants,a number of the documents produced, read as a whole or in conjunction with thedocuments annexed to the statement of objections, in fact support the conclusionsof the Commission. 1065. Thus they indicate that competitors who are denounced as aggressive at a givendate are shown to have actually supported the previous or subsequent priceinitiative. ICI for instance relies on a Shell document of July 1982 in which it isdescribed as a probable aggressive competitor (Annex 4 to its observations), yetAppendix P37 to the statement of objections, emanating from ICI, bears witnessto the strong support given by ICI to the price initiative of September 1982. Acomparison of Annex 12 to the observations of ICI with Appendices P38 and P40to the statement of objections shows the same, as do in the case of DSM inparticular Appendices P5, P13, P28 and P41 to the statement of objections. 1066. Similarly, in an internal memorandum of Wacker of 7 June 1982 (Annex 7 to theobservations of Shell, Annex 5 to the observations of SAV and Annex 14 to theobservations of ICI), the author, having emphasised the catastrophic fall in prices,indicates, in a passage relied on by the applicants: 'Major increase in market share[in Germany, for the period from January to May 1982]: Shell and Enoxy; average increase in market share: DSM, SAV, PCUK; losses above the average, besidesWacker: Hoechst, Orgavyl and CWH, and BASF. However, in the following linethe author continues: 'Since May, efforts have been in progress to improve pricesof homopolymerous PVC. Those efforts, allegedly made individually in acompetitive market, consisted in fixing, for 1 May 1982, a target price 35% higherthan the market price, then, for 1 June 1982, a target price more than 10% higherthan the previous target (namely DM 1.35/kg and DM 1.50/kg, corresponding to thetarget prices identified by the Commission at those dates). That is to be comparedwith Appendix P25 to the statement of objections, also emanating from Wacker,in which the author, despite that substantial rise in the competitive contextdescribed by the applicants, adds: 'The figure for the quantities sold should begood in May. Similarly, the author of Appendix P23 to the statement ofobjections, having referred to the fall in prices in April to a level of DM 1/kg,indicates: 'The slide in prices was halted by the month end, due to theannouncement of a general increase in European prices to DM 1.35/kg on 1 May. Finally, the Court notes that both the Wacker memorandum of 3 March 1982,communicated by the Commission to the parties on 3 May 1988, and Appendix P25to the statement of objections supported the same argument as that raised by theapplicants in the light of Wacker's memorandum of 7 June 1982. 1067. Again, a memorandum from Solvay of 22 March 1983 (Annex 43 to theobservations of Enichem), having referred to the worrying situation on prices andthe aggressivity of certain producers, contains the following commentary: 'Todaywe are again on the threshold of an attempt to raise prices. It should beremembered in that connection that the Commission has identified, in the light ofdocuments emanating from other undertakings, an initiative which took place on1 April 1983. Moreover, the document in question mentions initiatives of May,June and September 1982, all three of which have been identified by theCommission in its Decision. 1068. A large number of documents produced by the applicants contain explicitreferences to 'price initiatives, the dates and levels of which correspond exactlyto those identified by the Commission in the Decision. 1069. Shell also relies on ICI documents which are alleged to confirm, as Shell has alwaysmaintained, that, given its role as a service company, it was not in a position toimpose any line of conduct on sales companies of the group in the various MemberStates (Annexes 2 and 3 to the observations of Shell). However, that fact emergesexpressly from the Decision (point 46), even if the Commission neverthelessconsidered that the applicant should be an addressee of the Decision, particularlyin view of the fact that it was the entity which provided contact with the cartel. Itshould be noted in that respect that in one of those documents (Annex 3 to theobservations of Shell), which is a record of a meeting between ICI and Shell, thelatter indicates 'the route into Shell for ICI to follow in order to arrive atcoordination within the group. 1070. No document relating specifically to the meetings between producers and the salesmonitoring mechanism has been produced. 1071. Finally, it should be noted that the records of investigations carried out at thepremises of undertakings, which some applicants have requested be produced, areinternal Commission documents. As such, they are not accessible to the applicants(paragraph 1015 above). The fact that two of those records have nevertheless beendisclosed cannot affect that conclusion. 1072. Having regard to the fact that those two records would in any event not have beensupplied, and rightly so, at the time of access to the file if it had occurred in 1988,they must be set aside, irrespective of their content. Moreover, those documents,drafted the day after, or within a few days of, the investigation at BASF's premiseson 20 and 21 January 1987, from which it emerges that no evidence of a concertedpractice could be discovered, are not capable of undermining the probative valueof the documents assembled by the Commission in support of its final conclusions. 1073. In another development, without calling for production of the documents, Hüls andEnichem have argued that, apart from internal Commission documents anddocuments in respect of which confidentiality has not been waived by theundertakings from which they emanate, some pages of the file have not beencommunicated to the applicants. At issue, for example, is a request for informationsent to the company Kemanord at the time of the inquiry procedure; such arequest cannot by its nature contain anything relevant to the applicants' defence. Other documents consist of letters or facsimile cover sheets sent to the Commissionby undertakings not involved, or vice versa. As the Commission has pointed out,where it has not obtained a waiver of confidentiality by those undertakings, it is notentitled to disclose those documents. There is, moreover, no evidence to suggestthat they could have been in any way relevant in the present examination. Enichem has also referred to the existence of a letter from Wacker which was notcommunicated. However, the letter from the Commission to the Court Registryof 17 July 1997 shows that that document was and remains at the applicants'disposal. 1074. It follows therefore from the exhaustive examination which the Court has made ofthe documents referred to by the applicants that none of them establishes that thecourse of the procedure and the Decision might have been influenced, to theapplicants' detriment, by failure to disclose documents of which they ought to havehad knowledge. 1075. In the light of all those considerations, the applicants' pleas concerning access tothe Commission's administrative file must be dismissed. Fines 1076. All the applicants have sought in the alternative to have the fines set aside orreduced. Their arguments are in five parts. First, they raise pleas in law based onthe passage of time and the limitation rules, as contained in Regulation No 2988/74(I). Secondly, they plead infringement of Article 15(2) of Regulation No 17 (II). Thirdly, they argue that there has been an insufficient statement of reasons (III). Fourthly, they argue that the Commission made certain errors of assessment (IV). Finally, they plead infringement of certain general principles of Community law(V). I  Passage of time and limitation 1077. In support of their claims for the annulment or reduction of the fines, theapplicants begin by raising pleas in law identical to those in support of their claimsfor annulment of the Decision (paragraphs 100 to 119 above), based on the passageof time. 1078. For the same reasons as those set out above (see paragraphs 120 to 136), thosepleas must be dismissed. 1079. It is therefore necessary to examine the pleas alleging infringement of RegulationNo 2988/74. Arguments of the applicants 1080. The applicants maintain that the power to impose fines was time-barred underRegulation No 2988/74. In that respect, they rely on the following eight arguments. 1081. First, BASF argues that the various stages of the administrative procedure prior tothe adoption of the 1988 decision did not interrupt the limitation period, since theireffects were removed by the judgment of 15 June 1994. 1082. Secondly, three applicants argue that in relation to them the facts were alreadytime-barred, at least in part, at the time the 1988 decision was adopted. ThusMontedison and Hüls argue that, since the first measure interrupting the procedureagainst them occurred, in respect of one of them, in November 1987 and, in respectof the other, in December 1987, the facts prior to November 1982 and December1982 respectively are time-barred. In order to show that on 1 November 1982 itwas no longer in contact with the cartel, Montedison requests the Court to hear aswitnesses the managing director and responsible board member of its subsidiaryMontedipe, who were in office on 1 November 1982. DSM argues that, since it leftthe market in January 1983, the facts have been time-barred since January 1988. 1083. Thirdly, according to BASF and ICI, the 1988 decision is not a measure capable ofinterrupting the limitation period within the meaning of Article 2(1) of RegulationNo 2988/74. They maintain that since it has in any event been annulled it cannotproduce any legal effects, including in the matter of limitation. 1084. Fourthly, according to LVM, BASF, DSM, ICI and Hüls, the actions broughtagainst the 1988 decision did not suspend the limitation period. Decisions findingan infringement and imposing a fine are not covered by Article 3 of Regulation No2988/74. 1085. Fifthly, according to ICI and Hüls, even if the actions challenging a decision findinginfringement and imposing a fine are capable of suspending the limitation period,that does not apply to the actions challenging the 1988 decision. The time whichhad elapsed was solely attributable to the Commission, which was alone responsiblefor the nullity of the 1988 decision. 1086. Sixthly, according to LVM and DSM, if the action challenging the 1988 decisionsuspended the limitation period there would be discrimination, as Solvay and NorskHydro would be treated differently to the other undertakings. The 1988 decision,annulled erga omnes by the Court of Justice, could no longer be implemented withregard to the first two undertakings. 1087. Seventhly, according to LVM, DSM and ICI, the action by Solvay challenging arequest for information, which gave rise to the judgment in Case 27/88 Solvay vCommission [1989] ECR 3355, could not suspend the limitation period in respectof the other undertakings. 1088. Finally, according to LVM, BASF, DSM and ICI, bearing in mind the mandatorylimitation period laid down by the second sentence of Article 2(3) of RegulationNo 2988/74, the Commission's power to impose fines was in any event time-barredwhen it adopted the Decision on 27 July 1994. Findings of the Court 1089. Article 1 of Regulation No 2988/74 provides that the Commission's power toimpose fines is subject to a five-year limitation period in respect of breaches ofArticle 85(1) of the Treaty. The period begins to run on the day on which theinfringement is committed, or, in the case of continuing or repeated infringements,on the day on which it ends. It may, however, be interrupted or suspended,pursuant to Article 2 or 3 respectively of Regulation No 2988/74. 1090. As the Court has already held (paragraphs 183 to 193 above), the validity of thepreparatory measures which preceded the adoption of the 1988 decision is notaffected by the annulment of that decision by the Court of Justice in the judgment of 15 June 1994. Therefore, those measures did interrupt the limitation periodwithin the meaning of Article 2 of Regulation No 2988/74. 1091. In this case, the Decision (point 6) shows that investigations were carried out on21, 22 and 23 November 1983 at the premises of ICI and Shell, and on 6 December1983 at the premises of DSM. A written request for information was sent to ICIby decision of 30 April 1984. Investigations were carried out on 20 and 21 January1987 at the premises of, inter alia, Atochem, Enichem and Solvay, then, later in1987, at those of Hüls, Wacker and LVM. Finally, the statement of objections wasnotified to the undertakings on 5 April 1988. 1092. The Court finds, in the first place, that each of those measures interrupted thelimitation period pursuant to Article 2(1)(a), (b) and (d) of Regulation No 2988/74. Secondly, the limitation period starts to run afresh as from each interruption, inaccordance with the first sentence of Article 2(3) of the regulation. Thirdly, thatinterruption applies for all the undertakings which took part in the infringement,pursuant to Article 2(2) of the regulation. 1093. Therefore, the Commission's power to impose fines in respect of facts which aroseat the earliest in August 1980 were not time-barred when it adopted the 1988decision. Accordingly, there is no need to accede to Montedison's request for thehearing of witnesses. 1094. The applicants go on to deny that the actions challenging the 1988 decision, inwhich all of them were parties, could suspend the limitation period. 1095. Article 3 of Regulation No 2988/74 provides that 'the limitation period inproceedings shall be suspended for as long as the decision of the Commission is thesubject of proceedings pending before the Court of Justice of the EuropeanCommunities. 1096. The applicants consider that the word 'decision used in Article 3 denotes themeasures listed in Article 2 of the regulation. Since the final decision finding aninfringement and imposing a fine is not included in that list, they argue that theactions challenging the 1988 decision did not suspend the limitation period. 1097. However, not all of the measures listed in Article 2(1) of the regulation aremeasures which require to be classified as decisions. That applies in particular towritten requests for information under Article 11, inspection authorisationspursuant to Article 14 of Regulation No 17, and the statement of objections, noneof which is a preparatory measure. It cannot therefore be accepted that the word'decision used in Article 3 of the regulation refers to the measures listed in Article2 thereof. 1098. In fact the specific purpose of Article 3 is to enable the limitation period to besuspended where the Commission is prevented from acting for an objective reasonnot attributable to it and connected precisely with the fact that an action ispending. A Commission decision imposing a fine cannot be regarded as final foras long as the statutory period for bringing an action against it continues to run or,in appropriate cases, an action is pending; once the action is completed, theCommission may in the event of an annulment be induced to adopt a freshdecision. In that context, it should be noted that Article 2 of the regulation,concerning interruption, and Article 3, concerning suspension, have different aims. Whilst the first is intended to draw the consequences from the adoption by theCommission of investigative measures and proceedings for infringement, the secondis intended on the contrary to remedy the situation in which the Commission findsitself prevented from acting. 1099. The applicants cannot validly claim that because the 1988 decision was annulled forbreach of essential procedural requirements by the Commission the actionschallenging that decision could not suspend the limitation period. 1100. Article 3 of the regulation, whereby the limitation period is suspended for as longas proceedings are pending before the Court, has meaning only where a decisionfinding an infringement and imposing a fine, which forms the subject-matter of theaction, is annulled. As the Commission points out, any annulment of a measurewhich it has adopted is necessarily imputable to it, in the sense that it reveals anerror on the Commission's part. To argue therefore, as the applicants do, that anaction does not have the effect of suspending the limitation period if it leads torecognition of an error attributable to the Commission would deprive Article 3 ofthe regulation of all meaning. It is the very fact that an action is pending beforethe Court of First Instance or the Court of Justice which justifies the suspension,and not the conclusions reached by those courts in their judgment. 1101. In those circumstances, it is clear that the limitation period was suspended for aslong as the 1988 decision was the subject of proceedings pending before the Courtof First Instance and the Court of Justice, to which all the applicants were parties. Even if only the date of the last action lodged before the Court of First Instance,24 April 1989, were to be taken into account, and no account were taken of thetime which elapsed between the delivery of the judgment of the Court of FirstInstance and the date on which the matter was referred to the Court of Justice, thelimitation period would have been suspended for a minimum period of four years,11 months and 22 days. Therefore, even if, as the applicants maintain, thestatement of objections notified on 5 April 1988 were to be the last measureinterrupting the limitation period, as envisaged by Article 2(1)(d) of Regulation No2988/74, the Commission's power to impose fines was not time-barred on 27 July1994, the date on which the Decision was adopted. 1102. The applicants nevertheless argue that if the actions challenging the 1988 decisionsuspended the limitation period the result would be discrimination, as Solvay andNorsk Hydro would be treated differently to the other undertakings. 1103. However, that argument rests on the premiss that the annulment of the 1988decision by the Court of Justice produced an effect erga omnes. As has alreadybeen held (paragraphs 167 to 174 above), that is not the case. 1104. Moreover, even if the applicants' argument were correct, it would not affect theobjective conclusion that the Commission's power to impose fines was not time-barred in relation to them. 1105. The maximum limitation period of ten years provided for by the second sentenceof Article 2(3) of Regulation No 2988/74 is extended by the period during whichthe limitation period was suspended by reason of the actions pending before theCourt of First Instance and the Court of Justice (Article 2(3) of the regulation, infine). As already stated, that suspension lasted at least four years, 11 months and22 days. Therefore, having regard to Article 2(3) of Regulation No 2988/74, theCommission's power to impose fines in respect of facts arising, at the earliest, inAugust 1980 was not time-barred either on 27 July 1994, the date on which theDecision was adopted. 1106. In the light of all those factors, it is clear that the Commission's power to imposefines was not time-barred when it adopted the Decision. It is not necessary,therefore, to determine whether the adoption of the 1988 decision also interruptedthe limitation period or whether the action by Solvay challenging a decision torequest information addressed to it suspended the limitation period with regard tothe other undertakings; those factors, if well founded, could only support theconclusion that limitation had not taken effect. II  Infringement of Article 15(2) of Regulation No 17 1107. The applicants challenge the Commission's assessment as to the intentional natureand duration of the infringement, and also challenge the turnover taken intoaccount for the purposes of determining the fine. Finally, they accuse theCommission of failing to take certain mitigating circumstances into account. The intentional nature of the infringement 1108. LVM, DSM, Wacker, Hoechst and Enichem deny that the Commission hasestablished that the infringement was intentional within the meaning of Article15(2) of Regulation No 17. 1109. In the version in force at the time when the Decision was adopted, that provisionprovided that 'the Commission may by decision impose on undertakings fines offrom 1 000 to 1 000 000 ecus, or a sum in excess thereof but not exceeding 10%of the turnover in the preceding business year of each of the undertakingsparticipating in the infringement where, either intentionally or negligently ... theyinfringe Article 85(1) ... of the Treaty. 1110. In this case, there is no dispute that the Commission found the infringement whollyintentional and not merely negligent (point 51, paragraph 2 of the Decision). 1111. For an infringement of the competition rules of the Treaty to be regarded ashaving been committed intentionally, it is not necessary for an undertaking to havebeen aware that it was infringing those rules; it is sufficient that it could not havebeen unaware that its conduct was aimed at restricting competition (Case T-143/89Ferriere Nord v Commission [1995] ECR II-917, paragraph 41). 1112. In this case, the intrinsic gravity of the repeated infringement of Article 85(1) of theTreaty, and in particular subparagraphs (a) and (c) thereof, as described andanalysed in this judgment, reveals that the applicants did not act imprudently, oreven negligently, but intentionally. 1113. The plea must therefore be dismissed. The duration of the infringement Arguments of the applicants 1114. The applicants argue that the Decision should be annulled, at least in part, or thefine annulled or reduced, on account of various defects occurring in thedetermination of the duration of the infringement (Hoffmann-La Roche, paragraphs140 and 141, Musique Diffusion Française, paragraphs 129 and 130, Petrofina,paragraph 249 et seq., Case T-4/89 BASF, paragraphs 64 to 72 and 259 to 262, andDunlop Slazenger). 1115. LVM and DSM accuse the Commission of failing to state sufficiently preciselywhen the infringement started and came to an end (points 48 and 54 of theDecision respectively). 1116. More specifically, DSM finds that bearing in mind that, according to the Decision,DSM's responsibility ceased on the date on which LVM was constituted, namely1 January 1983, there is a contradiction in points 42, 48 and 54 of the Decisionconcerning the date on which the infringement of which it is accused came to anend. 1117. Elf Atochem argues that the Commission has not been able to prove the durationof the alleged infringement. Neither the date of its commencement nor the dateof its termination has been precisely established. 1118. BASF maintains there is no proof that it adhered to the cartel from 1980 onwards. Nor, in its submission, has its participation in the infringement until May 1984 beenestablished; that conclusion was based on the Atochem table, the probative valueof which has already been challenged. The applicant maintains that, in any event,it did not participate in meetings after October 1983, the date of the Commission'sfirst investigations in the polypropylene sector. At the very least, that should leadto a reduction in the fine. 1119. Wacker and Hoechst argue in their replies that the Decision does not contain asufficient statement of reasons as to the determination of the duration of theinfringement. In breach of the principle of individual responsibility, the length ofeach addressee's participation, save in the cases of Shell and ICI, was not indicated. In reality, there was nothing in this case to show that each of them had participatedin the infringement from August 1980, the presumed commencement of the cartel,until its presumed end in May 1984. 1120. Montedison argues that there is a contradiction in the grounds of the Decision. Inthe final paragraph of point 43 of the Decision, the Commission recognised that theapplicant had left the PVC market in March 1983. However, as points 26 and 51of the Decision show, the Commission included the period after March 1983 in itsassessment. 1121. Hüls considers that the Decision does not set out the reasons for the fine imposed. In particular, the Commission omitted to state the date on which the applicant firstparticipated in the cartel and the date on which it ceased doing so, merelyindicating a duration for the cartel which was valid for most of the undertakings.The Commission thereby infringed the duty to state reasons. 1122. In the context of a plea alleging lack of reasoning, Enichem maintains that, inbreach of Article 15(2) of Regulation No 17, the Commission has establishedneither the duration of the alleged infringement nor the duration of theparticipation of each undertaking in it. Findings of the Court 1123. The Court will begin by examining the arguments set out above which concern onlycompliance with the duty to state reasons. 1124. In that respect, save in the case of DSM, which will be examined below (paragraph1127 et seq.), the Commission stated clearly in points 48 and 54 of the Decision both the duration of the infringement found in respect of each of the applicantsand the documents or other factors on which it relied in establishing that duration. Thus both the applicants and the Court are in a position to verify whether theCommission's assessments are well founded. 1125. Moreover, whilst Regulation No 17 requires the Commission to determine theduration of the infringement taken into account for the purposes of fixing theamount of the fine, it does not require it to determine at what later date theinfringement actually ceased. Accordingly, the Commission cannot be accused offailing to state reasons as regards the actual date on which the infringement cameto an end. Even if the infringement had in fact ceased, that would not entail theannulment of Article 2 of the Decision but would deprive it of effect in so far asit required the undertakings to cease the practices complained of. 1126. In its analysis of the duration of the infringement, the Commission found thatMontedison had transferred its business to Enichem in March 1983 (last paragraphof point 43 of the Decision). That finding is not contradicted by the fourthparagraph of point 26 and the third paragraph of point 51 of the Decision, whichrelate to subsequent periods and concern only those undertakings which were stillactive in the PVC market and not, obviously, the applicant. The plea alleging acontradiction in the reasoning in that respect must therefore be dismissed. 1127. As regards the date on which DSM's participation in the infringement was takento have ceased, the Decision refers to the 'beginning of 1983 (point 42, seventhparagraph), 'April 1983 (point 48, fourth paragraph) and 'mid-1983 (point 54,second paragraph, in fine). Whilst it is true that the Commission's position doesnot emerge clearly, it being noted however that only points 48 and 54 concern anidentical question, the fact remains that the date April 1983 is the only onementioned in the part of the Decision expressly dealing with the 'Duration of theinfringement. 1128. In its written submissions in this case, the Commission has confirmed that it tookApril 1983 into account because it was inconceivable that DSM's role in the PVCmarket disappeared overnight on 1 January 1983. 1129. In the exercise of its unlimited jurisdiction, the Court finds first that, by anagreement of 22 February 1983, EMC Belgium (acting for SAV) and DSMtransferred their respective PVC production businesses to LVM with effect from1 January 1983. 1130. It is also apparent from Appendix P41 to the statement of objections, whichemanates from DSM, that the latter would 'support the attempt to increase prices... starting January 1st [1983] and that a further price increase would be made ifthe first one turned out to be successful. That document supports theCommission's argument that decisions taken by DSM before its withdrawal from the market were still capable of producing effects in the following months. Sincethe second price initiative identified by the Commission in 1983 is dated 1 April1983, the Court considers that, for the purposes of determining the fine, the effectsof DSM's participation in the cartel should be regarded as having continued untilthat date. 1131. Therefore, the pleas alleging defects in the statement of reasons for the Decisionas regards the duration of the infringment must be rejected. 1132. Some applicants consider, next, that the Commission has failed to adduce proof ofthe duration of their participation in the infringement. 1133. However, as has been stated, the Decision contains a sufficiently precise indicationof the duration of the infringement on the part of each of the undertakings and ofthe documents on which the Commission relies in that regard. It appears that theapplicants' arguments are intended to challenge the probative value of thosedocuments, which has already been examined in detail in the section of thisjudgment headed 'Facts (paragraph 535 et seq.). 1134. It should be remembered in this respect that in the planning documents severalundertakings, including the 'new French company, BASF and Wacker, wereidentified as prospective participants in the new framework of meetings. Theblueprint for a cartel contained in those documents was implemented in the weekswhich followed, in particular by means of a general price initiative as from 1November 1980, the existence of which could be deduced from the planningdocuments. Moreover, both ICI and BASF have admitted the existence ofmeetings between producers, the anti-competitive purpose of which has beendetermined by the Commission, as from August 1980. In the case of Hoechst, theCommission found, in the third paragraph of point 48 of the Decision, that thatundertaking was not cited in the planning documents. However, as from thebeginning of 1981, the Solvay tables state that applicant's sales figures for theGerman market in 1980. 1135. Similarly, the Court has confirmed the probative value of the Atochem table andthe latest price initiative identified by the Commission in the period used for thepurposes of determining the fine was on 1 April 1984. Apart from ICI and Shell(see the third paragraph of point 54 of the Decision and paragraph 613 above), allthe undertakings still active in the PVC sector in the first three months of 1984,including Elf Atochem, Wacker and Hoechst, are identified in the Atochem table. 1136. In the light of those considerations, therefore, the applicants' pleas concerning theduration of the infringement must be dismissed. 1137. In the case of SAV, however, it must be borne in mind that the Solvay tablescannot be regarded as having probative value as against that undertaking (seeparagraph 888 above). 1138. Consequently, the latest document permitting the identification of the applicant asa participant in the infringement is the Alcudia document (see paragraph 887above). In that document, as in others, the compensation mechanism describedtherein specifically concerns only the first six months of 1981 (see paragraphs 587to 601 above). 1139. In addition, the Court considers that the price documents referred to above inparagraph 889 cannot be regarded as sufficient evidence of the applicant'sparticipation in the infringement beyond the first six months of 1981. Whilst thosedocuments are capable of constituting additional evidence to support, in the lightof other documents, the conclusion that an undertaking has participated in theinfringement, they cannot, in respect of a period during which they are notcorroborated by any other factors, be regarded as sufficient proof of theparticipation of an undertaking in the infringement. 1140. Since the Solvay tables have no probative value in relation to SAV, therefore, it hasnot been demonstrated that the latter took part in the infringement after the firsthalf of 1981. 1141. For the purposes of determining the fine, therefore, the applicant's participationin the infringement must be regarded as established only in respect of the periodfrom August 1980 to June 1981, and not to April 1983 as stated in the Decision. 1142. Article 1 of the Decision must therefore be annulled in so far as, by reference tothe grounds for the Decision, SAV is alleged to have participated in theinfringement in question after the first half of 1981. 1143. The fine must therefore be reduced to reflect the duration thus established and thegravity of the infringement in which that undertaking participated. Expressed ineuros, pursuant to Article 2(1) of Council Regulation (EC) No 1103/97 of 17 June1997 on certain provisions relating to the introduction of the euro (OJ 1997 L 162,p. 1), the fine imposed on SAV must be reduced to EUR 135 000. The turnover taken into account Arguments of the applicants 1144. Enichem begins by arguing that turnover for the purposes of Article 15(2) ofRegulation No 17 is the turnover for the tax year preceding the Decision, in thiscase 1993. Whereas the ratio between the fine and that turnover was necessarily different from that which existed between the fine and the turnover for 1987, theCommission nevertheless imposed a fine of identical amount, in absolute value. Inthat respect, the fact that the fine imposed remains below the maximum of 10%laid down by Article 15 is, the applicant submits, irrelevant. 1145. The company then argues that in view of the fact that it ceased all activity in thePVC sector in 1986 and thus no longer had any PVC-related turnover either in1987 or in 1993, it is inequitable to use its overall turnover, even if that is possible(Parker Pen, paragraph 94), particularly as the turnover taken into account is thatof Enichem, to which the Decision was addressed in error, rather than that of theoperating company Enichem Anic. Findings of the Court 1146. The purpose of the reference to turnover in Article 15(2) of Regulation No 17,cited in paragraph 1109 above, is to determine the maximum amount of the finewhich may be imposed on an undertaking for infringement of Article 85(1) of theTreaty. 1147. Therefore, the mere change in the ratio between, on the one hand, the fineimposed in the 1988 decision and the turnover for the company's previousaccounting year, namely 1987, and, on the other hand, the fine of an identical ecuamount imposed in the Decision and the turnover for the company's precedingaccounting year, namely 1993, does not in itself entail an infringement of Article15(2) of Regulation No 17. That would be so only if, by reason of that change, thefine imposed in 1994 exceeded the maximum fixed by that article. However, it isundisputed that the fine imposed is substantially below that maximum. 1148. In addition, in order to determine the amount of the fine actually imposed on theapplicant, the Commission took account inter alia of the respective importance inthe PVC market of each participant in the infringement (first paragraph of point53 of the Decision). That importance was assessed by reference to the averagemarket share, and not the turnover, of each of the applicants during the period ofthe infringement alone. 1149. The applicant's pleas must therefore be dismissed. The failure to take certain mitigating circumstances into account Arguments of the applicants 1150. In support of their claims for a reduction in the fine imposed upon them, theapplicants plead the following circumstances, which they claim the Commissionignored. 1151. BASF and ICI emphasise the delay in adopting the Decision and the culpable lackof diligence on the part of the Commission, which did not pursue the investigationsbegun in 1983 until 1987. Had it acted sooner, the infringements would doubtlesshave ended before May 1984 (Commercial Solvents, paragraph 51; DunlopSlazenger, paragraph 167). 1152. Wacker, Hoechst and SAV refer to the crisis in the PVC sector and the substantiallosses incurred during the period covered by the Decision. 1153. Wacker and Hoechst refer to their blameless conduct since 1988, the preventiveeffect already attaching to the initial decision, and their withdrawal from the marketsince 1993. 1154. Hoechst and SAV emphasise their limited significance on the market at the timeof the facts in question and the absence of any perceptible effect of their conducton the market. 1155. SAV refers to the fact that it is a newcomer on the PVC market and to theabsence of any previous infringements of Community competition rules. 1156. ICI pleads lack of proven effect on the market (Suiker Unie, paragraph 612 et seq.,inter alia), its cooperation in replying to the Commission's questions under Article11 of Regulation No 17, and the action which it took in order to secure futurecompliance with Community competition law (see inter alia Commission Decision88/86/EEC of 18 December 1987 relating to a proceeding under Article 85 of theTreaty (V/31.017  Fisher-Price/Quaker Oats Ltd  Toyco) (OJ 1988 L 49, p. 19)). Findings of the Court 1157. The gravity of infringements must be determined by reference to numerous factorssuch as the particular circumstances of the case, its context and the dissuasive effectof fines, although no binding or exhaustive list of the criteria to be applied has beendrawn up (order of 25 March 1996 in Case C-137/95 P SPO v Commission [1996]ECR I-1611, paragraph 54). 1158. First, the Court of Justice has held that, whilst a serious infringement justifies aheavy fine, account must be taken of the fact that it might have been ended soonerif the Commission had acted more quickly (Commercial Solvents, paragraph 51). In this case, the Commission first suspected the existence of an infringement inOctober 1983 and no fine was imposed for the period after May 1984. It is therefore necessary to determine whether by reason of its (alleged) lack ofdiligence during that period the Commission might indirectly have helped toprolong the infringement. It should be remembered, however, that the Commissioncarried out investigations as early as November 1983 and sent ICI a request forinformation in December 1983 and a decision to request information in April 1984. In those circumstances, it cannot be accused of a lack of diligence which might havehelped to prolong the duration of the infringement taken into account for thepurpose of determining the level of the fines. That applies particularly in the caseof ICI, as no fine was even imposed for the period after October 1983. 1159. Secondly, the Commission stated in the second paragraph of point 52 of theDecision that it had reduced the fines because over much of the period covered bythe Decision the undertakings concerned had reported substantial losses in thePVC sector due to the crisis in the industry at that time. That finding is sufficientto dispose of the applicants' argument based on the crisis in the PVC market andthe substantial losses of producers during the relevant period (DSM, paragraph304). 1160. Thirdly, as has already been held (paragraphs 744 to 749 above), the applicants'claim that the infringement has had no effect is wrong, even if the price initiativeswere only partially successful, as the Commission itself recognised in the Decision. They cannot therefore claim that the absence of effect was a mitigatingcircumstance. 1161. Fourthly, ICI's cooperation during the administrative procedure did not go beyondwhat it was obliged to do under Article 11(4) and (5) of Regulation No 17. Itscollaboration cannot therefore constitute a mitigating circumstance (Case T-12/89Solvay v Commission [1992] ECR II-907, paragraph 341). Moreover, ICI'sargument on the substance of the case seeks essentially to show that theCommission misinterpreted its replies to the requests for information. 1162. Fifthly, whilst it is doubtless important that ICI took measures to prevent furtherinfringements of Community competition law being committed by its staff in thefuture, that does nothing to alter the reality of the infringement found in this case. The mere fact that, in certain cases, the Commission took account in earlierdecisions of the introduction of an information programme as a mitigatingcircumstance does not mean that it had an obligation to do so in this case,particularly as the infringement constituted a manifest breach of Article 85(1)(a)and (c) of the Treaty. As the Commission pointed out in the second paragraph ofpoint 51 of the Decision, ICI is also one of the undertakings already fined forcollusion in the chemicals industry (Commission Decision 69/243/EEC of 24 July1969 relating to a proceeding under Article 85 of the Treaty (IV/26.267 Dyestuffs) (Journal Officiel 1969 L 195, p. 11)). 1163. Sixthly, neither the irreproachable conduct of an undertaking since the 1988decision nor the absence of prior infringements can be a mitigating factor asregards the existence and gravity of the infringement committed. Such factorsconstitute a normal circumstance that the Commission does not have to take intoaccount in mitigation (DSM, paragraph 317). 1164. Seventhly, the fact that an undertaking withdrew from the PVC market before theDecision was adopted does not alter the existence, the gravity or the duration ofthe infringement found against it. It does not therefore justify the reduction of afine. 1165. Eighthly, the fact that an undertaking is a newcomer to a market cannot reduce thegravity of the infringement described above, in which it participated (Solvay,paragraph 339). 1166. Ninthly, the mere fact that the 1988 decision was adopted does not have adeterrent effect. Only a fine is both punitive and preventive in character. Thedecision of 1988 was annulled, however, and with it the fines that were imposed. 1167. Finally, the first paragraph of point 53 of the Decision shows that, in determiningthe fines to be imposed on individual undertakings, the Commission took accountof their respective importance in the PVC market. The applicants cannot thereforerely on their small size on the market in order to obtain a reduction in the fine. 1168. In the light of all those considerations, the applicants cannot accuse theCommission of failing to take account of the alleged mitigating circumstances. III  Infringement of the duty to state reasons Arguments of the applicants 1169. LVM, Elf Atochem, DSM, Wacker, Hoechst, Hüls and Enichem maintain that theDecision does not contain any specific information explaining the level of the finesimposed on each of them (ACF Chemiefarma, paragraph 176; Suiker Unie,paragraphs 622 and 623). 1170. The Commission thus failed to specify the objective standards used to assess theliability of the undertakings and their respective importance. Neither the listing ingeneral terms of the criteria used nor the existence of different fines for each of theundertakings was sufficient to make good that omission. 1171. In the applicants' submission, disclosure of such information constitutes not merelya wish on their part, but a right (Enichem Anic, paragraph 274; Tréfilunion,paragraph 142). To hold otherwise would be to ignore Article 6 of the European Convention on Human Rights, which guarantees every accused person the right toknow, precisely and in detail, the grounds for the penalty imposed upon him,including the criteria used to measure the penalty and the 'keys to calculation. Findings of the Court 1172. It is settled case-law that the statement of reasons required by Article 190 of theTreaty, which constitutes an essential procedural requirement within the meaningof Article 173 of the Treaty, must be appropriate to the measure at issue anddisclose clearly and unequivocally the reasoning followed by the institution whichadopted it in such a way as to enable the persons concerned to ascertain thereasons for the measure and to enable the competent court to exercise its powerof review. The requirements to be satisfied by the statement of reasons depend onthe circumstances of each case, and in particular the content of the measure, thenature of the reasons given and the interest which the addressees of the measure,or other parties to whom it is of direct and individual concern, may have inobtaining explanations. It is not necessary for the reasoning to go into all therelevant facts and points of law, since the question whether the statement ofreasons meets the requirements of Article 190 of the Treaty must be assessed withregard not only to its wording but also to its context and to all the legal rulesgoverning the matter in question (see, inter alia, Case C-367/95 P Commission vSytraval and Brink's France [1998] ECR I-1719, paragraph 63). 1173. Although, in the case of a decision imposing fines on several undertakings for aninfringement of Community competition rules, the scope of the duty to statereasons must be assessed inter alia in the light of the fact that the gravity of theinfringement depends on a large number of factors, such as the particularcircumstances of the case, its context and the dissuasive effect of fines, no bindingor exhaustive list of the criteria to be applied has been drawn up (SPO, paragraph54). The Commission has a discretion when fixing the amount of each fine, andcannot be required to apply a precise mathematical formula for that purpose (CaseT-150/89 Martinelli v Commission [1995] ECR II-1165, paragraph 69). 1174. The Commission has set out in points 51 to 54 of the Decision the factors it tookinto account in determining the fine. Points 52 and 53, in particular, show that themethod it used in this case comprised two stages, as indicated by the introductionto each of those paragraphs and the list of criteria, first general and then individual,which are mentioned there. 1175. The Commission began by fixing the total amount, as it is entitled to do (BoehringerI, paragraph 55; IAZ, paragraphs 51 to 53). As point 52 of the Decision shows, indetermining the amount of the fines to be imposed the Commission took a numberof criteria into account, namely the nature and gravity of the infringement, theimportance of the industrial product in question and the value of the sales relating thereto  some ECU 3 000 million annually in western Europe  and the combinedsize of the undertakings concerned. 1176. It also emphasised that it had taken into account as mitigating circumstances thefact that the undertakings had suffered substantial losses during much of the periodcovered by the Decision and the fact that most of the undertakings had already hadheavy fines imposed upon them for their participation in an infringement in thethermoplastics sector (polypropylene) during much the same period. 1177. In the 1988 decision, including the cases of Solvay and Norsk Hydro, the totalamount of the fines thus determined was ECU 23 500 000. 1178. The Commission then apportioned that total between the undertakings penalised. As Points 53 and 54 of the Decision show, in order to determine the amount of thefines to be imposed on the various undertakings, the Commission took into accountthe level of participation of each of them, the role they played (in so far as thiscould be established) and their respective importance on the PVC market. Forthat purpose, it tried to ascertain to what extent some undertakings could beregarded as ringleaders, which it was not able to do, or, conversely, whether some,like Shell, could be regarded as having played only a marginal role in theinfringement. It also took account of the duration of the participation of each, asstated in point 54 of the Decision. 1179. Interpreted in the light of the detailed account in the Decision of the factualallegations made against each addressee of the Decision, Points 51 to 54 of theDecision contain a sufficient and relevant indication of the factors taken intoaccount by the Commission in assessing the gravity and duration of theinfringement committed by each of the undertakings in question. 1180. It is certainly desirable, in order to enable undertakings to define their position withfull knowledge of the facts, for them to be able to determine in detail, inaccordance with such system as the Commission might consider appropriate, themethod whereby the fine imposed upon them in a decision establishing aninfringement of Community competition rules has been calculated, without theirbeing obliged, in order to do so, to bring court proceedings against the decision(Tréfilunion, paragraph 142). 1181. However, such calculations do not constitute an additional and subsequent groundfor the Decision, but merely translate into figures the criteria set out in theDecision which are capable of being quantified. 1182. Pursuant to Articles 64 and 65 of its Rules of Procedure it is for the Court of FirstInstance to ask the Commission, if the Court considers it necessary in order toexamine the applicants' pleas, for specific explanations of the various criteriaapplied by the Commission and referred to in the Decision. 1183. Indeed, in the course of the actions challenging the 1988 decision the Court askedthe Commission to produce explanations at the hearing concerning the calculationof the fines imposed. For that purpose the Commission produced a table, whichwas annexed to the applications in the current proceedings. 1184. Consequently, the applicants' pleas that the Decision did not adequately statereasons concerning the criteria taken into account for the purposes of determiningthe fine must be dismissed. IV  Errors of law and obvious errors of assessment Arguments of the applicants 1185. LVM and DSM argue that the criteria set out in the Decision for the purpose ofdetermining the amount of the fine which concern the importance of the productin question and the combined position of the undertakings in the market (Decision,point 52) are hard to understand and a fortiori to assess. The criterion based onthe economic importance of the offender is, in the applicants' submission,inadmissible, as it leads in practice to determining the amount of the fine byreference to the resources of each of the undertakings rather than the gravity oftheir conduct. 1186. Secondly, the applicants recall that at the hearing before the Court of First Instancein the actions challenging the 1988 decision the Commission produced a tableexplaining how the fines were calculated. The table showed that the Commissiontook into account the average market share of each of the undertakings in the PVCsector between 1980 and 1984. The market shares for some applicants weremanifestly wrong, however, and the fines should be reduced in proportion. 1187. Thus Elf Atochem argues that in calculating the fine imposed upon it theCommission attributed to it an average market share between 1980 and 1984 of13%, which was higher than its actual share. 1188. ICI argues that its average market share was 8.1% between 1980 and 1984, and aslow as 7.4% if account is taken only of the period between 1980 and 1983, the onlyperiod in respect of which the applicant was incriminated. In contrast, the tableproduced by the Commission attributed to it an average market share of 11%. 1189. Finally, Enichem comments that the Commission attributed to it an average marketshare of 15% between 1980 and 1984, significantly higher than the actual averageand even higher than the market share it had in 1984 (12.3%). Findings of the Court 1190. Contrary to what LVM and DSM maintain, the Commission is entitled to take intoaccount both the volume and value of the goods which are the subject-matter ofthe infringement and the size and economic strength of the undertakings concerned(Boehringer I, paragraph 55; IAZ, paragraph 52). 1191. In reply to a question from the Court during the actions brought to challenge theoriginal decision, the Commission presented at the hearing a table showing thefigures relating to the determination of the amount of the fines. That table, whichhas been produced by the applicants in these proceedings, shows that inapportioning the total fine between the undertakings the criterion of theimportance of each of them on the PVC market, which is stated in the Decision(point 53), was translated into figures by reference to the average share between1980 and 1984 of the West European PVC market as defined by Fides. In fact thatmarket share appears to have been the decisive element, inasmuch as the portionof the total fine allocated to each undertaking corresponded to its market share. To that key rate, the Commission applied adjustments  increases or reductions identified in the Decision, for example by reference to the duration of theparticipation or the finding that one of the applicants played a lesser role. Thus,an undertaking which participated fully during the whole of the infringement borea share of the total fine corresponding to about 110% of its average market share. 1192. It is necessary to examine the applicants' arguments in the light of those factors. 1193. At the request of the Court, Atochem produced figures for its average marketshare between 1980 and 1984, which was of the order of 10.5%. 1194. ICI produced figures showing that its average market share between 1980 and 1983,the only period during which it was held in the Decision to have participated in theinfringement, was 7%. 1195. As the Commission has not seriously challenged those figures, the Court finds that,by attributing to Elf Atochem and ICI market shares of 13% and 11% respectively,the Commission exaggerated those two applicants' market shares and accordinglyimposed too high a share of the fine upon them. 1196. The share of the fine imposed on Elf Atochem and ICI must therefore be reduced. 1197. The fine imposed on Elf Atochem must be fixed at a share of the total fineequivalent to its average market share, increased to take account of the fact thatthe applicant participated in the infringement for the whole of the durationdetermined by the Commission and taking into account the fact that there are noparticular mitigating circumstances in its case. The fine must therefore be reducedto 11% of the total fine, namely, in rounded figures, EUR 2 600 000. 1198. The fine imposed on ICI must be fixed at a share of the total fine equivalent to itsaverage market share, reduced to take account of the fact that the applicantdistanced itself from the infringement as from October 1983. The fine musttherefore be fixed at 6.6% of the overall fine, namely, in rounded figures, EUR1 550 000. 1199. As regards Enichem, the applicant maintains that its average market share was ofthe order of 2.7% in 1980 and 1981, 5.5% in 1982, 12.8% in 1983 and 12.3% in1984, so that its average market share for the whole of the period was slightly morethan 7%. 1200. However, as the Court has already held (paragraph 615 above), the figuresproduced by the applicant are not sufficiently certain. 1201. Secondly, contrary to what the applicant maintains, the Commission did notattribute to it an average market share of 15% from 1980 to 1984. It is expresslystated in the table produced by the Commission that that market share concernsthe year 1984. Moreover, a footnote states that that share is the result of theacquisition of Montedison's PVC business in March 1983, which, as is not denied,substantially increased the applicant's market share. Indeed, if the Commission hadproceeded on the basis of an average market share of 15% over the whole of theperiod, the fine imposed on the applicant would have been higher than thoseimposed on Elf Atochem and Solvay, which were in the same position as theapplicant in terms of both the duration of the infringement and their role in it, butwhose market shares as established by the Commission were below 15%. However,it is apparent, on the contrary, that the fine imposed on Enichem is substantiallybelow that imposed on those two undertakings. 1202. Thirdly, the market share indicated in the individual particulars annexed to thestatement of objections, namely 12%, does not contradict the share indicated in thetable produced by the Commission; the first concerns the year 1983 as a whole,whereas the second concerns only the market share after the acquisition ofMontedison's PVC business. 1203. Finally, it appears that the applicant has been ordered to pay a fine representing10.6% of the total fine. In those circumstances, taking account of the methods ofcalculation used by the Commission, it appears that the applicant has beenattributed an average market share in western Europe of less than 10%. 1204. In the absence of any serious challenge by the applicant, there is therefore noreason to reduce the fine imposed on it. 1205. In those circumstances, the applicants' pleas must be dismissed, subject to what hasbeen held above in the cases of Elf Atochem and ICI (paragraphs 1193 to 1198). 1206. The Court is aware of the fact that, since the Commission initially determined thetotal amount, subsequently apportioned between the undertakings, the reductionin the amount of the fine imposed on some undertakings should lead to acorresponding increase in the fines imposed on other undertakings, in order toarrive at the same total. In the circumstances of this case, however, the Courtconsiders that, in the exercise of its unlimited jurisdiction under Article 172 of theTreaty, there is no need to effect such an increase. V  Infringement of general principles of law 1207. The applicants plead infringement of various general principles, namely theprinciple that penalties should relate to the specific circumstances of eachapplicant, the principle of proportionality and, lastly, the principle of equaltreatment. The principle that penalties should relate to the specific circumstances of eachapplicant 1208. In the submission of Elf Atochem, Wacker, Hoechst, SAV, Hüls and Enichem, bystating that each producer was responsible not only for individual decisionsattributed to it but also for the implementation of the cartel as a whole, theCommission applied the principle of collective liability. By so doing, it infringed theprinciples that penalties should be individualised and personal. 1209. As has been held above (paragraphs 768 to 778), each of the applicants is beingpenalised only for the actions of which it is individually accused. 1210. The plea must therefore be dismissed. Infringement of the principle of proportionality Arguments of the applicants 1211. Shell begins by recalling that points 48 and 53 of the Decision expressly indicate thelimited and marginal role played by Shell, and adds that its alleged participationlasted only from January 1982 to October 1983, a total of 21 months. In thosecircumstances, it maintains, the fine imposed is disproportionate. 1212. Montedison argues that the fine is disproportionate in view of the brief durationof the infringement. 1213. Enichem observes that the fine imposed in the Decision, like that imposed in theoriginal decision, is expressed in ecus. Bearing in mind the significant depreciationof the Italian lira between the dates when those two decisions were adopted, thefine payable by the applicant in Italian lire is in reality substantially higher than thatimposed in 1988. If it is accepted that the duration and gravity of infringementhave not, in the nature of things, changed in relation to the 1988 decision, and ifthe fine imposed at that time is presumed to have been proportionate, it followsthat the fine borne by Enichem today, expressed in national currency, isdisproportionate. 1214. The applicant adds that it had no reason to take steps to protect itself against anexchange risk, since the judgment of the Court of First Instance, and then that ofthe Court of Justice, absolved it from any obligation to pay a fine. It argues thatthe only currency of reference is that of the State in which the undertaking has itsmain office (Joined Cases 41/73, 43/73 and 44/73 Société Anonyme Générale Sucrièrev Commission [1977] ECR 445, paragraphs 12 and 13; factual part of the judgment,p. 455). It also notes that it would have been easy to avoid the prejudicial effectof the devaluation of that currency, for example by prior conversion of the initialfine into Italian lire. Findings of the Court 1215. Article 15(2) of Regulation No 17 provides that in order to determine the amountof the fine it is necessary to take into consideration the duration and gravity of theinfringement. The proportionality of the fine must therefore be assessed in thelight of all of the circumstances of the infringement. 1216. In this case, Montedison has not demonstrated how the fine imposed isdisproportionate, having regard to the gravity and duration of the infringement. 1217. Shell's argument is based on considerations which the Commission took intoaccount when determining the amount of the fine, and which led it to impose aproportionately smaller fine than that imposed on the other undertakings (Decision,end of point 53). There is nothing to show that the fine thus fixed wasdisproportionate. 1218. With regard to Enichem's arguments, Article 3 of the Decision provides that thefines imposed are expressed in ecus, and Article 4 provides that they are payablein ecus. 1219. There is nothing to show that the fine imposed, expressed in ecus, isdisproportionate having regard to the gravity and duration of the infringement. 1220. Moreover, the Commission is entitled to express the amount of the fine by meansof the ecu, a monetary unit convertible into national currency. The possibility ofconverting the ecu into national currency distinguishes it from the unit of accountinitially referred to in Article 15(2) of Regulation No 17, in respect of which theCourt of Justice has expressly recognised that, not being a currency in whichpayment is made, it necessarily implies the fixing of the amount of the fine innational currency (Société Anonyme Générale Sucrière, paragraph 15). 1221. There is in any case no dispute that the fine imposed on the applicant in Article3 of the Decision and expressed in ecus is identical to that fixed in Article 3 of the1988 decision. Indeed, the Commission's very purpose was to adopt a decisionidentical in substance to that of 1988, which had been annulled for infringement ofessential procedural requirements. 1222. Moreover, as the fines have since the 1988 decision been expressed in ecus and inthe absence of a single common currency in which the Commission could haveexpressed the fines or of fixed exchange rates between the currencies of theMember States, the risks of fluctuating exchange rates remain inevitable. Enichemcould have covered itself against such risks for as long as the case was pendingbefore the Court of First Instance, and then on appeal before the Court of Justice. Finally, it should be remembered that, on the same day as the judgment wasdelivered on 15 June 1994, the Commission stated in a press release that itintended to adopt the decision afresh, which it did a month later. 1223. Finally, it is not disputed that the fine imposed, even expressed in nationalcurrency, remains substantially below the maximum laid down in Article 15(2) ofRegulation No 17. 1224. In the light of those considerations, the applicants' pleas must be dismissed. Infringement of the principle of equal treatment Arguments of the applicants 1225. The applicants allege four types of infringement of the principle of equal treatment. 1226. First, LVM, Shell, DSM, ICI and Enichem all claim to be victims of unequaltreatment in relation to certain other applicants. 1227. Secondly, Enichem maintains that the fine imposed upon it is higher than thatimposed in other decisions concerning sectors undergoing crises less severe thanthat in the PVC sector (Commission Decision 84/405/EEC of 6 August 1984 relating to a proceeding under Article 85 of the EEC Treaty (IV/30.350  ZincProducer Group) (OJ 1984 L 220, p. 27)). 1228. Thirdly, Enichem challenges the discrimination it claims to have suffered by reasonof the change in the ecu/Italian lira exchange rate between the adoption date of the1988 decision and the adoption date of the Decision. Even if the amountsexpressed in ecus are identical in both decisions, the amounts in national currencyare different, given the exchange rate fluctuations in the meantime. The applicant,whose fine has substantially increased when converted into national currency, thusclaims to have been discriminated against in relation to other addressees of theDecision. It claims that, in reality, it is being penalised for having successfully usedthe legal remedies available to it to challenge the original decision. 1229. Fourthly, LVM, DSM, ICI and Enichem challenge the discrimination to which theyclaim to have been subject by comparison with Solvay and Norsk Hydro, which, inlaw, escape any pecuniary penalty. In the first place, the Decision does not imposeany fines on Solvay and Norsk Hydro. Secondly, those undertakings escape anypenalty imposed by the 1988 decision, since that decision was annulled in relationto all the undertakings, as a consequence of the effect erga omnes of the judgmentof the Court of Justice of 15 June 1994. Moreover, even if the 1988 decision hadnot been annulled in relation to Solvay and Norsk Hydro, the Commission wouldnot have been able to have enforced it: first, because Article 192 of the Treatyrequires the national authority to verify the authenticity of the 1988 decision, whichis impossible since that decision was annulled for lack of authentication; secondly,because the limitation period for the enforcement of sanctions has now expired(Article 4 of Regulation No 2988/74). Findings of the Court 1230. First, as has been noted, the individual fines have been determined by weighing upvarious factors, in particular the importance of the undertaking in the market, theduration of its participation, or the role which it played, particularly in the case ofShell. 1231. In that regard, the applicants have failed to establish that the Commission treatedidentical situations differently or different situations identically. In reality, all thealleged cases of discrimination as between the applicants are based on acomparison between their own situation and that of one or more other applicants,whose importance in the market, length of participation or role in the infringementwere different. 1232. Secondly, the amount of the fines depends on a variety of criteria which must beassessed on a case-by-case basis with reference to all the circumstances of the case. Moreover, the fact that the Commission imposed fines in the past of a certain level for certain types of infringement does not mean that it is estopped from raising thatlevel within the limits laid down in Regulation No 17, if that is necessary to ensurethe implementation of Community competition policy (Musique Diffusion Française,paragraph 109). It has therefore not been established in this case that theCommission has infringed the principle of equal treatment in the light of its earlierpractice. 1233. Thirdly, as regards the discrimination allegedly resulting from the devaluation ordepreciation of certain national currencies in relation to others, the fines imposedon the various applicants were expressed in ecus. It is not disputed that, soexpressed, the fines imposed on each of the applicants in Article 3 of the Decisionare identical to those imposed in the 1988 decision. 1234. Exchange rate risks are inherent in the existence of separate national currencieswhose parity is capable of fluctuating at any time. Moreover, Enichem does notclaim that the fixing of fines in national currency would remedy the effects of suchfluctuations where, as in this case, the undertakings in question are based indifferent Member States and their fines would be fixed in the national currency ofeach of those States. 1235. As the Court has already held, the Commission is entitled to express the fines inecus, which, moreover, enables the undertakings to compare more easily the finesimposed on each of them. Moreover, the Commission's very purpose was to adopta decision identical in substance to that of 1988, by merely rectifying the formaldefect which had led to its annulment by the Court of Justice. Finally, bearing inmind that the fines were already expressed in ecus in the 1988 decision, andbearing in mind also the inevitable exchange rate risks, the applicant could havetaken steps to protect itself against such risks, as the Court has already observedabove (paragraph 1222). 1236. Fourthly, the alleged discrimination suffered by the applicants in comparison withSolvay and Norsk Hydro is based on the premiss that the annulment of the 1988decision by the Court of Justice had effect erga omnes. Suffice it to say that, as theCourt has already held (paragraphs 167 to 174 above), that is not the case. 1237. In any event, where an undertaking has acted in breach of Article 85(1) of theTreaty, it cannot escape being penalised altogether on the ground that anothertrader has not been fined, when that trader's circumstances are not even thesubject of proceedings before the Court (Ahlström Osakeyhtiö, paragraph 197). 1238. Consequently, all the applicants' pleas alleging infringement of general principlesof law must be dismissed. 1239. In the light of the above, all the applicants' pleas in law in support of their claimsfor the annulment or reduction of the fine must be dismissed, subject to thefollowing reservations. 1240. In accordance with paragraphs 1143, 1197 and 1198 above, the fines imposed onElf Atochem, SAV and ICI must be reduced to EUR 2 600 000, EUR 135 000, andEUR 1 550 000 respectively. The other forms of order sought 1241. In addition to the claims already examined and those relating to costs, theapplicants have sought certain other forms of order (see paragraphs 27 to 30above). 1242. Some of those claims have already been examined on account of their closeconnection with the pleas in law raised in support of the claims for annulment ofthe Decision or the annulment or reduction of the fine, and which have beendismissed (see paragraphs 268, 365 to 371, 375 to 377 and 1091 above). 1243. As regards the claims that the documents produced at the time of the actionschallenging the 1988 decision should be placed on the Court file, they must bedismissed for the same reasons as those set out above (paragraph 39). 1244. Accordingly, it is necessary to examine first the claims for annulment of Article 2of the Decision (I), and secondly Montedison's claim for compensation in respectof the loss allegedly suffered (II). I  Annulment of Article 2 of the Decision Arguments of the applicants 1245. At the reply stage, without formally including the claim in the forms of ordersought, Hoechst argues that Article 2 of the operative part of the Decision,ordering cessation of the infringement, is unlawful in relation to Hoechst becauseit fails to take into account the fact that the applicant was no longer in the PVCbusiness when the Decision was adopted. 1246. DSM observes that, under Article 3(1) of Regulation No 17, the Commission mayrequire undertakings to terminate infringements which it finds. In this case, Article2 of the Decision required, inter alia, that all exchanges of confidential informationbetween PVC producers should cease; however, neither Article 1 of the Decisionnor, in fact, the grounds for the Decision supported the conclusion that such an infringement had been found. The Commission thus exceeded its powers underArticle 3 of Regulation No 17. Findings of the Court 1247. It is not necessary to consider the admissibility of the plea by Hoechst in the lightof Article 48(2) of the Rules of Procedure; it is sufficient to note that Article 2 isexpressly addressed to undertakings 'which are still involved in the PVC sector. The argument in support of this claim is therefore manifestly devoid of allfoundation. 1248. Article 3(1) of Regulation No 17 provides that where the Commission finds aninfringement of Article 85 of the Treaty it may by decision require the undertakingsconcerned to bring it to an end. As point 50 of the Decision states, Article 2 of theDecision was adopted pursuant to that provision. Having noted the content of thelatter, the Commission stated: '[I]t is not known whether meetings or at least somecommunication between firms on prices and volumes have in fact ever ceased. Itis therefore necessary to include in any decision a formal requirement that thoseundertakings still active in the PVC sector terminate the infringement and refrainin the future from any collusive arrangements having a similar object or effect. 1249. It is well established in the case-law that the application of Article 3(1) ofRegulation No 17 may comprise both a prohibition on continuing certain activities,practices or situations which have been found to be unlawful (Commercial Solvents,paragraph 45; Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission[1995] ECR I-743, paragraph 90) and a prohibition on adopting similar conduct inthe future (Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph220). 1250. Since Article 3(1) must be applied with reference to the infringement found, theCommission has the power to specify the extent of the obligations of theundertakings concerned in order to terminate it. Such obligations must not,however, exceed what is appropriate and necessary to attain the objective sought,namely restoration of compliance with the rules infringed (RTE and ITP, paragraph93). 1251. In this case, in Article 2 of the Decision, the Commission first requires theundertakings still active in the PVC sector to bring the infringements found in theDecision to an end forthwith. 1252. It then requires the undertakings to refrain in future in relation to their PVCoperations from any agreement or concerted practice which may have the same orsimilar object or effect. 1253. Such instructions fall clearly within the Commission's powers under Article 3(1) ofRegulation No 17. 1254. Among those agreements or concerted practices with similar object or effect to thepractices censured in the Decision, the Commission included 'any exchange ofinformation of the kind normally covered by business secrecy by which theparticipants are directly or indirectly informed of the output, deliveries, stock levels,selling prices, costs or investment plans of other individual producers. Since theCommission is entitled to prohibit for the future any agreement or practice with anobject identical or similar to that of the conduct found in the Decision, it rightlyincluded such exchanges of information. In the first place, the Decision containsinter alia a charge based specifically on the exchange of sales data; secondly, themeetings between producers relied on the exchange of information concerningprices and sales volumes, as they were aimed at defining jointly the policy to bepursued in that area. Just as the Commission is entitled to prohibit exchanges ofinformation on sales and prices, which are covered by the Decision, it is entitled toprohibit also exchanges which 'indirectly allow an 'identical or similar result tobe achieved. It would, in particular, be easy to deduce the sales of eachundertaking from the exchange of individualised information on output and stocklevels. To deny the Commission the power to prohibit such an exchange wouldallow the undertakings to circumvent easily the injunction upon them not tocontinue or resume conduct such as that found by the Decision to exist. 1255. As for the prohibition of exchanges of information of the kind normally covered bybusiness secrecy, by which undertakings 'might be able to monitor adherence toany express or tacit agreement or to any concerted practice covering price ormarket-sharing, it is directly related to the practices found to exist by the Decision,which accuses the undertakings of jointly implementing mechanisms for monitoringsales volumes and price initiatives. 1256. In the words of the first part of the second sentence of Article 2 of the Decision,'any scheme for the exchange of general information to which the producerssubscribe concerning the PVC sector shall be so conducted as to exclude anyinformation from which the behaviour of individual producers can be identified. In the Decision, the systems for exchanging general information to which theproducers subscribe are not called into question, precisely because they do notenable the conduct of individual producers to be identified, but are limited tocommunicating aggregate data (see point 12, third paragraph, of the Decision). The second sentence of Article 2 is thus aimed simply at preventing producers fromcircumventing the prohibition against continuing or resuming conduct such as thatfound to exist by the Decision by replacing their mechanism of regular meetingswith a system for exchanging individualised information, which would lead to thesame result. That sentence is thus intended merely to define more closely theconcept of an agreement or concerted practice with a similar object or effect setout in the previous sentence. 1257. The second part of the second sentence of Article 2 of the Decision adds nothingto the first. It is in fact merely intended to specify that the prohibition onexchanging individualised data enabling the conduct of each producer to beidentified in the context of a system to which producers are subscribers cannot, ofcourse, be circumvented by means of direct exchanges between producers. 1258. Finally, the second sentence of Article 2 of the Decision clearly indicates that, incontrast to the situation considered by the Court of First Instance in the context ofthe actions challenging Commission Decision 94/601/EC of 13 July 1994 relating toa proceeding under Article 85 of the EC Treaty (IV/C/33.833  Cartonboard) (OJ1994 L 243, p. 1), the Commission has not included a prohibition also covering, incertain circumstances, data exchanged in aggregate form. 1259. In the light of all those factors it is clear that the obligations imposed on theundertakings pursuant to Article 2 of the Decision do not exceed what isappropriate and necessary to restore compliance with the rules infringed. Inadopting Article 2 of the Decision, therefore, the Commission did not exceed thepowers conferred upon it by Article 3(1) of Regulation No 17. 1260. Consequently, the claims for annulment of Article 2 of the Decision must bedismissed. II  The claim for compensation in respect of loss allegedly suffered 1261. Montedison asks the Court to order the Commission to pay it damages in respectof costs connected with furnishing the bank guarantee and any other costs relatingto the Decision. 1262. The application does not enable the pleas in law on which the applicant seeks tobase its claims in the matter to be identified. 1263. It follows that with regard to that claim the application does not satisfy theminimum requirements for the admissibility of an application laid down in Article19 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules ofProcedure. Accordingly, these claims must be rejected as inadmissible (Parker Pen,paragraphs 99 and 100). 1264. Moreover, if the fault of which the Commission is accused corresponds to thevarious objections set out by the applicant in support of its claims for annulment,which the Court has dismissed, the Court would in any event have to hold thatthose claims for compensation in respect of loss suffered were unfounded. Conclusion 1265. It follows from the whole of the examination which the Court has carried out thatArticle 1 of the Decision must be annulled in so far as it finds that SAVparticipated in the infringement after the first half of 1981. The fines imposed onElf Atochem, SAV and ICI must be reduced to 2 600 000 euros, 135 000 euros and1 550 000 euros respectively. The remainder of the actions must be dismissed. Costs 1266. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Where there are several unsuccessful parties the Court of First Instanceis to decide how the costs are to be shared. 1267. As LVM, BASF, Shell, DSM, Wacker, Hoechst, Montedison, Hüls and Enichemhave been unsuccessful in all their pleadings, they must be ordered to pay theCommission's costs, as the latter has asked for them. 1268. As Elf Atochem and ICI have been unsuccessful in some of their pleadings, thoseapplicants and the Commission must each be ordered to bear their own costs. 1269. As SAV has been unsuccessful in some of its pleadings, but has been successful ina significant part of them, the Court orders that applicant to bear two thirds of itscosts and the Commission to bear one third of the applicant's costs in addition toits own costs. On those grounds, THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition) hereby: 1. Joins Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 for thepurposes of the judgment; 2. Annuls Article 1 of Commission Decision 94/599/EC of 27 July 1994relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/31.865 PVC) in so far as it holds that Société Artésienne de Vinyle participatedin the infringement in question after the first half of 1981; 3. Reduces the fines imposed by Article 3 of that decision on Elf Atochem SA,Société Artésienne de Vinyle and Imperial Chemical Industries plc to EUR2 600 000, EUR 135 000 and EUR 1 550 000 respectively; 4. Dismisses the remainder of the actions; 5. Orders each applicant to bear both its own costs and those of theCommission in the case which it has brought. However, in Cases T-307/94and T-328/94, Elf Atochem SA, Imperial Chemical Industries plc and theCommission are each ordered to bear their own costs. In Case T-318/94,Société Artésienne de Vinyle is ordered to bear two thirds of its own costsand the Commission is ordered to bear one third of the applicant's costsin addition to its own costs. Tiili Lenaerts Potocki Delivered in open court in Luxembourg on 20 April 1999. H. Jung V. Tiili Registrar President Summary Facts II - 3 Procedure II - 6 Forms of order sought II - 8 Admissibility of the pleas under Articles 44(1), 46(1) and 48(2) of the Rules ofProcedure II - 9 I  The objections of inadmissibility based on Article 44(1)(c) of the Rules ofProcedure II - 9 Arguments of the parties II - 9 Findings of the Court II - 10 II  The objection of inadmissibility based on Article 46(1) of the Rules ofProcedure II - 11 Arguments of the parties II - 11 Findings of the Court II - 12 III  The objections of inadmissibility based on Article 48(2) of the Rules ofProcedure II - 12 Arguments of the parties II - 12 Findings of the Court II - 13 The claims for annulment of the Decision II - 15 I  The pleas alleging defects of form and procedure II - 15 A  The effects of the judgment of 15 June 1994 annulling the 1988 decision II - 15 1. The power of the Commission to adopt a new decision after thejudgment of 15 June 1994 II - 16 (a) The pleas alleging that it was not possible for the Commission toadopt the Decision II - 16 Infringement of the principle of res judicata II - 16  Arguments of the parties II - 16  Findings of the Court II - 17 Infringement of the non bis in idem principle II - 19  Arguments of the parties II - 19  Findings of the Court II - 20 (b) The pleas based on the passage of time II - 21 Arguments of the parties II - 21  The plea alleging infringement of the principle that the Commissionshould take a decision within a reasonable time II - 21  Abuse of rights II - 22  The plea alleging infringement of the principles governing the right toa fair hearing II - 23 Findings of the Court II - 24 (c) The pleas based on the Commission's alleged abuse of itsdiscretionary power II - 27 Arguments of the parties II - 27 Findings of the Court II - 29 2. The scope of the judgment of 15 June 1994 II - 30 (a) The effect erga omnes of the judgment of 15 June 1994 II - 30 Arguments of the parties II - 30 Findings of the Court II - 31 (b) The alleged invalidity of the procedural measures prior to theadoption of the Decision II - 33 Arguments of the parties II - 33 Findings of the Court II - 34 3. The detailed procedure for adopting the Decision, after the annulmentof the 1988 decision II - 36 Summary of the applicants' arguments II - 37  The procedural stages provided for by secondary legislation II - 37  The applicants' alleged right to be heard II - 41 Arguments of the Commission II - 44 Findings of the Court II - 47 B  The irregularities in the adoption and authentication of the Decision II - 51 1. Illegality of the Commission's Rules of Procedure of 17 February 1993 II - 51 Arguments of the parties II - 51 Findings of the Court II - 52  The admissibility of the plea of illegality II - 53  The illegality of the first paragraph of Article 16 of the Rules ofProcedure for failure to comply with the requirement of legalcertainty II - 55 2. Infringement of the principle of collegiality and of the Commission'sRules of Procedure II - 56 Arguments of the parties II - 56 Findings of the Court II - 57 3. The composition of the file submitted to the college of Commissionersfor deliberation II - 58 4. Infringement of the principle that decisions must be made anddeliberated by the same body, and of the principle of immediacy II - 58 Arguments of the parties II - 58 Findings of the Court II - 59 C  The alleged defects in the administrative procedure II - 59 1. The pleas alleging defects in the notification of the statement ofobjections II - 60 (a) Formal defects in the notification of the statement of objections II - 60 Arguments of the parties II - 60 Findings of the Court II - 60 (b) Infringement of Article 3 of Council Regulation No 1 II - 61 Arguments of the parties II - 61 Findings of the Court II - 61 (c) Insufficient time to prepare the reply to the statement ofobjections II - 62 Arguments of the parties II - 62 Findings of the Court II - 62 2. The pleas alleging defects relating to the hearing II - 63 (a) Insufficient time to prepare for the hearing II - 63 (b) Infringement of Article 3 of Regulation No 1 II - 63 Arguments of the parties II - 63 Findings of the Court II - 64 (c) Minutes of the hearing not complete II - 64 Arguments of the parties II - 64 Findings of the Court II - 65 (d) Failure to produce the opinion of the hearing officer II - 66 Arguments of the parties II - 66 Findings of the Court II - 66 D  The alleged infringement of Article 190 of the Treaty II - 67 Arguments of the parties II - 67 Findings of the Court II - 68 II  The pleas on the substance II - 69 A  The evidence II - 69 1. The admissibility of the evidence II - 69 (a) Infringement of the principle of inviolability of the home II - 70 Arguments of the parties II - 70 Findings of the Court II - 71 (i) The admissibility of the plea II - 72 (ii) The merits of the plea II - 73  The first part of the plea, concerning the validity of the formal actsrelating to the investigations II - 73  The second part of the plea, concerning the implementation ofthose acts II - 74 (b) Infringement of the 'right to silence and the privilege against self-incrimination II - 74 Arguments of the parties II - 74 Findings of the Court II - 76  The admissibility of the plea II - 76  The merits of the plea II - 76 (c) Infringement of Article 20(1) of Regulation No 17 II - 79 Arguments of the parties II - 79 Findings of the Court II - 80  The facts II - 80  The merits of the plea II - 80 (d) Inadmissibility as evidence of the refusal to reply to requests forinformation or to produce documents II - 81 Arguments of the parties II - 81 Findings of the Court II - 82  Proof of the infringement II - 82  Proof of participation in the infringement II - 82 (e) Failure to communicate documents II - 83 Arguments of the parties II - 83 Findings of the Court II - 84 (f) Late communication of documents II - 85 Arguments of the parties II - 85 Findings of the Court II - 85 2. The adducing of evidence II - 85 (a) The plea that certain types of evidence used by the Commissionlacked probative value II - 86 Arguments of the parties II - 86 Findings of the Court II - 86 (b) Infringement of the rules on adducing evidence II - 87 Arguments of the parties II - 87 Findings of the Court II - 89 B  The denial of the existence of an infringement of Article 85(1) of theTreaty II - 90 1. Facts II - 90 Brief recapitulation of the Decision II - 90 Arguments of the applicants II - 91  The origin of the cartel II - 91  The meetings between producers II - 92  The quota and compensation mechanisms II - 93  The monitoring of sales in national markets II - 95  The price initiatives II - 96 Findings of the Court II - 96  The quota system II - 97  The monitoring of sales in national markets II - 103  The target prices and price initiatives II - 107  The origin of the cartel II - 113  The meetings between producers II - 116 2. Law II - 118 (a) The classification of the conduct as an agreement 'and/or aconcerted practice II - 118 Arguments of the applicants II - 118 Findings of the Court II - 119 (b) Whether the conduct in this case could be classified either as anagreement or as a concerted practice II - 120 Arguments of the parties II - 120 Findings of the Court II - 122 (c) The finding that the object or effect of the conduct was to restrictcompetition II - 125 Arguments of the parties II - 125 Findings of the Court II - 126 (d) The finding that the conduct affected trade between MemberStates II - 128 Arguments of the parties II - 128 Findings of the Court II - 128 (e) The other pleas in law II - 129 Misuse of powers II - 129 Inconsistency between the operative part and the grounds of theDecision II - 129 C  The applicants' participation in the infringement II - 130 1. The alleged attribution of collective responsibility II - 130 Arguments of the parties II - 130 Findings of the Court II - 130 2. Individual participation of the applicants in the infringement II - 132 (a) DSM II - 132 Arguments of the applicants II - 132 Findings of the Court II - 133 (b) Atochem II - 134 Arguments of the applicant II - 134 Findings of the Court II - 134 (c) BASF II - 136 Arguments of the applicant II - 136 Findings of the Court II - 137 (d) Shell II - 137 Arguments of the applicant II - 138 Findings of the Court II - 140 (e) LVM II - 143 Arguments of the applicant II - 143 Findings of the Court II - 144 (f) Wacker II - 145 Arguments of the applicant II - 145 Findings of the Court II - 145 (g) Hoechst II - 146 Arguments of the applicant II - 146 Findings of the Court II - 146 (h) SAV II - 147 Arguments of the applicant II - 147 Findings of the Court II - 148 (i) Montedison II - 149 Arguments of the applicant II - 149 Findings of the Court II - 150 (j) Hüls II - 152 Arguments of the applicant II - 152 Findings of the Court II - 153 (k) Enichem II - 154 Arguments of the applicant II - 154 Findings of the Court II - 155 D  Attribution of liability for the infringement and identification of theaddressees of the Decision II - 158 1. Attribution of liability for the infringement II - 158 Arguments of the applicants II - 158 Findings of the Court II - 160 2. Identification of the addressees of the Decision II - 162 Arguments of the applicants II - 162 Findings of the Court II - 164 III  The pleas concerning access to the file II - 166 A  The conditions under which the Commission gave access to its file duringthe administrative procedure II - 166 Arguments of the parties II - 166 Findings of the Court II - 168 B  The observations lodged in the context of the measure of organisation ofprocedure II - 171 Arguments of the applicants II - 171 Findings of the Court II - 172 Fines II - 180 I  Passage of time and limitation II - 181 Arguments of the applicants II - 181 Findings of the Court II - 182 II  Infringement of Article 15(2) of Regulation No 17 II - 185 The intentional nature of the infringement II - 185 The duration of the infringement II - 186 Arguments of the applicants II - 186 Findings of the Court II - 187 The turnover taken into account II - 190 Arguments of the applicants II - 190 Findings of the Court II - 191 The failure to take certain mitigating circumstances into account II - 191 Arguments of the applicants II - 191 Findings of the Court II - 192 III  Infringement of the duty to state reasons II - 194 Arguments of the applicants II - 194 Findings of the Court II - 195 IV  Errors of law and obvious errors of assessment II - 197 Arguments of the applicants II - 197 Findings of the Court II - 197 V  Infringement of general principles of law II - 200 The principle that penalties should relate to the specific circumstances of eachapplicant II - 200 Infringement of the principle of proportionality II - 200 Arguments of the applicants II - 200 Findings of the Court II - 201 Infringement of the principle of equal treatment II - 202 Arguments of the applicants II - 202 Findings of the Court II - 203 The other forms of order sought II - 205 I  Annulment of Article 2 of the Decision II - 205 Arguments of the applicants II - 205 Findings of the Court II - 206 II  The claim for compensation in respect of loss allegedly suffered II - 208 Conclusion II - 208 1: Languages of the case: German, English, French, Italian, Dutch.