Judgment — ECLI:EU:T:1998:94
Date: 1998-05-14
Language of the case: German
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Statement of reasons;Determining the amount of the fine;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Termination of infringements: powers of the Commission
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Germany

summary publication, and T-151/89 Société des 
Treillis et Panneaux Soudés v Commission [1995] ECR II-1191, summary publica­
tion), that this Court stressed for the first time that it is desirable for undertakings 
to be able to ascertain in detail the method used for calculating the fine imposed 
without having to bring court proceedings against the Commission's decision in 
order to do so. 
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JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
194 It follows that, when it finds in a decision that there has been an infringement of 
the competition rules and imposes fines on the undertakings participating in it, the 
Commission must, if it systematically took into account certain basic factors in 
order to fix the amount of fines, set out those factors in the body of the decision in 
order to enable the addressees of the decision to verify that the level of the fine is 
correct and to assess whether there has been any discrimination. 
195 In the specific circumstances set out in paragraph 193 above, and having regard to 
the fact that in the procedure before the Court the Commission showed itself to be 
willing to supply any relevant information relating to the method of calculating the 
fines, the absence of specific grounds in the Decision regarding the method of cal­
culation of the fines should not, in the present case, be regarded as constituting an 
infringement of the duty to state reasons such as would justify annulment in whole 
or in part of the fines imposed. Finally, the applicant has not shown that it was 
prevented from properly asserting its rights of defence. 
196 Consequently, this plea cannot be upheld. 
The plea that the infringements had no economic effects 
Arguments of the parties 
197 According to the applicant, the economic effects of an infringement must be taken 
into account when assessing the gravity of the infringement and calculating the 
amount of the fines (ICI ν Commission, cited above, paragraph 359). In the 
present case, the collusion on prices had no or, at the very most, a negligible effect 
on the market. 
II -1296 
WEIG ν COMMISSION 
198 That is shown, first, by the report produced for the purpose of the procedure 
before the Commission by London Economics on behalf of several participants in 
that procedure, including the applicant (hereinafter 'the LE report'). 
199 The LE report concludes as follows: (a) the price changes in the cartonboard sector 
during the period in question are explained by changes in unit costs and demand; 
(b) the research carried out at a representative number of customers does not show 
that there was any change in conduct in regard to prices after 1986; (c) there is 
only a very vague correlation between announced price increases and prices actu­
ally paid by the customers; and (d) the profits made by the sector during the rel­
evant period were insufficient to cover investment costs adequately in the long-
term. 
200 In the Decision the Commission did not even attempt to refute the LE report's 
conclusions that changes in prices on the cartonboard market would have been the 
same even if there been no collusion on price increases. It must therefore be con­
cluded that there was no causal link between the concerted price increase initiatives 
and actual changes in transaction prices. 
201 Second, the lack of economic effects of the collusion on prices is shown by the fact 
that the applicant was able to impose only a very small proportion of its 
announced price increases on the market. The applicant compares changes in net 
transaction prices before the increases with changes in announced prices. The aver­
age success rate of its price increase initiatives was 38.8% in Germany and 36% in 
France. 
202 The applicant also refers to a graph showing changes in prices of GD2 grade car­
tonboard in the Community between 1986 and 1994 and changes in the price index 
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JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
over the same period. It shows that the price level for the first quarter in 1986 was 
never again reached; that prices continued to fall until the end of 1987 and were 
consolidated in 1988 but only at a low level. Although prices began to rise consis­
tently again in 1989-1990, that was merely the consequence of general economic 
changes (the reunification of Germany) and they started to fall again with the 
beginning of the recession in 1991. 
203 Changes in transaction prices, when compared with those in announced prices, 
shows that announced prices were of minor importance in the fixing of prices for 
individual customers and that the practices in question did not cause any economic 
damage or, at least, that any economic damage was clearly less than the Commis­
sion asserts. 
204 The Commission states that there is no doubt that the cartel affected the market, as 
the agreed increases served as a basis for negotiating prices with customers. 
205 Furthermore, the concerted price increases had an additional effect on the market, 
since the changes in prices invoiced to customers corresponded to the prices agreed 
between the producers. The LE report does not show that the unlawful agree­
ments had no effect on price levels, as was confirmed by the author of the report 
during the hearing before the Commission (minutes, p. 28). Nor is it disputed that 
the agreed price increases were imposed, at least in part, on customers. Moreover, 
the LE report shows that for 1988 and 1989 there was a linear relationship between 
announced prices and actual prices, because net price increases corresponded to 
announced prices. Changes in prices invoiced to customers therefore followed, 
with a lag, changes in agreed announced prices, as the author of the LE report 
himself acknowledged (minutes of the oral hearing, pp. 21 and 28). 
II -1298 
WEIG ν COMMISSION 
206 At the oral hearing the author of the LE report stated (minutes p. 31) that a fall or 
slow increase in demand could — in a sector such as cartonboard, characterised by 
inelastic demand and high capital costs — often lead to a ruinous price war. How­
ever, in the present case, despite a slight increase in total consumption in the Com­
munity during the relevant period, there had not even been normal healthy com­
petition on prices. The price increases were not based on the undertakings' own 
individual decisions but on agreements which they had concluded to that effect by 
them. Consequently, despite possible cost increases, it must be concluded that the 
prices did not change in the way they would have done in the absence of the price 
initiatives. 
207 The Commission duly took into account the fact that the producers would have 
had to make concessions in individual price negotiations, particularly to their 
major customers (points 102 and 115 of the Decision). Even if concessions were 
made, that does not alter the fact that this took place on the basis of prices which 
had already been increased. 
208 The data relating to changes in the applicant's prices in Germany and France is not 
inconsistent with the Commission's findings. 
209 N o r are those findings contradicted by the graph showing changes in the prices of 
the applicant's cartonboard in the Community compared with changes in the price 
index. It is clear from that graph that, apart from a brief fall at the end of 1989 or 
beginning of 1990, the prices charged by the applicant increased continuously and 
by over 20% between 1988 and 1991. 
210 The Commission therefore correctly assessed the effects of the cartel. In finding 
that the cartel had largely been successful in achieving its objectives (point 168 of 
I I -1299 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
the Decision), the Commission was referring not only to increases in actual prices 
but also to other aspects of the cartel (see, in particular, points 136 and 137). Its 
assessment is, moreover, in accordance with that of the cartel members themselves, 
who took the view that the majority of the price initiatives had been successful. 
Findings of the Court 
211 According to the seventh indent of point 168 of the Decision, the Commission 
determined the general level of fines by taking into account, inter alia, the fact that 
the cartel 'was largely successful in achieving its objectives'. It is common ground 
that this consideration refers to the effects on the market of the infringement found 
in Article 1 of the Decision. 
212 In order to review the Commission's appraisal of the effects of the infringement, 
the Court considers that it suffices to consider the appraisal of the effects of the 
collusion on prices, the only effects disputed by the applicant. It is apparent from 
the Decision that the finding concerning the large measure of success in achieving 
objectives is essentially based on the effects of collusion on prices (see points 100 
to 102, 115, and 135 to 137 of the Decision). 
213 As regards collusion on prices, the Commission appraised the general effects of 
this collusion. Consequently, even assuming that the individual data supplied by 
the applicant show, as it claims, that the effects of collusion on prices were, in its 
case, less significant than those found on the European cartonboard market taken 
as a whole, such individual data cannot in themselves suffice to call into question 
the Commission's assessment. 
II - 1300 
WEIG ν COMMISSION 
214 It is apparent from the Decision, as the Commission confirmed at the hearing, that 
a distinction was drawn between three types of effects. Moreover, the Commission 
relied on the fact that the price initiatives were considered by the producers them­
selves to have been an overall success. 
215 The first type of effect taken into account by the Commission, and not contested 
by the applicant, consisted in the fact that the agreed price increases were actually 
announced to customers. The new prices thus served as a reference point in indi­
vidual negotiations on transaction prices with customers (see, inter alia, points 100 
and 101, fifth and sixth paragraphs, of the Decision). 
216 The second type of effect consisted in the fact that changes in transaction prices 
followed those in announced prices. The Commission states that 'the producers 
not only announced the agreed price increases but also with few exceptions took 
firm steps to ensure that they were imposed on the customers' (point 101, first 
paragraph, of the Decision). It accepts that customers sometimes obtained conces­
sions in regard to the date of entry into force of the increases or rebates or indi­
vidual reductions, particularly on large orders, and that 'the average net increase 
achieved after all discounts, rebates and other concessions would always be less 
than the full amount of the announced increase' (point 102, last paragraph, of the 
Decision). However, referring to graphs in the LE report, the Commission claims 
that during the period covered by the Decision there was 'a close linear relation­
ship' between changes in announced prices and those in transaction prices 
expressed in national currencies or converted to ecus. It concludes from this that: 
'the net price increases achieved closely tracked the price announcements albeit 
with some time lag. The author of the report himself acknowledged during the oral 
hearing that this was the case for 1988 and 1989' (point 115, second paragraph, of 
the Decision). 
217 When appraising this second type of effect the Commission could properly take 
the view that the existence of a linear relationship between changes in announced 
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JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
prices and changes in transaction prices was proof of an effect by the price initia­
tives on transaction prices in accordance with the objective pursued by the produc­
ers. There is, in fact, no dispute that on the relevant market the practice of holding 
individual negotiations with customers means that, in general, transaction prices 
are not identical to announced prices. It cannot therefore be expected that 
increases in transaction prices will be identical to announced price increases. 
218 As regards the very existence of a relationship between announced price increases 
and transaction price increases, the Commission was right in referring to the LE 
report, which consists of an analysis of changes in the price of cartonboard during 
the period to which the Decision relates, based on information supplied by several 
producers. 
219 However, that report only partially confirms, in temporal terms, the existence of a 
'close linear relationship'. Examination of the period 1987 to 1991 reveals three 
distinct sub-periods. At the oral hearing before the Commission the author of the 
LE report summarised his conclusion as follows: 'There is no close relationship, 
even with a lag, between announced price increase and market prices in the early 
part of the period, in 1987 through 1988. There is such a relationship in 1988/1989, 
and then the relationship breaks down and behaves rather oddly over the period 
1990/1991' (transcript of the oral hearing, p. 28). He also observed that those tem­
poral variations were closely linked to variations in demand (see, in particular, 
transcript of the oral hearing, p. 20). 
220 Those conclusions expressed by the author at the hearing are in accordance with 
the analysis set out in his report, and in particular with the graphs comparing 
changes in announced prices and changes in transaction prices (LE report, graphs 
10 and 11, p. 29). The Commission has therefore only partially proved the exist­
ence of the 'close linear relationship' on which it relies. 
II -1302 
WEIG ν COMMISSION 
221 At the hearing the Commission stated that it had also taken into account a third 
type of effect of the price collusion, namely the fact that the level of transaction 
prices was higher than that which would have been achieved in the absence of any 
collusion. Pointing out that the dates and order of the price increase announce­
ments had been planned by the PWG, the Commission takes the view in the 
Decision that 'it is inconceivable in such circumstances that the concerted price 
announcements had no effect upon actual price levels' (point 136, third paragraph, 
of the Decision). However, the LE report (section 3) drew up a model which 
enabled a forecast to be made of the price level resulting from objective market 
conditions. According to that report, the level of prices determined by objective 
economic factors in the period 1975 to 1991 would have evolved, with minor 
variations, in an identical manner to the level of transaction prices applied, includ­
ing those during the period covered by the Decision. 
222 Despite those conclusions, the analysis in the report does not justify a finding that 
the concerted price initiatives did not enable the producers to achieve a level of 
transaction prices above that which would have resulted from the free play of 
competition. As the Commission pointed out at the hearing, it is possible that the 
factors taken into account in that analysis were influenced by the existence of col­
lusion. So, the Commission rightly argued that the collusive conduct might, for 
example, have limited the incentive for undertakings to reduce their costs. How­
ever, the Commission has not argued that there is a direct error in the analysis in 
the LE report nor submitted its own economic analysis of the hypothetical 
changes in transaction prices had there been no collusion. In those circumstances, 
its assertion that the level of transaction prices would have been lower if there had 
been no collusion between the producers cannot be upheld. 
223 It follows that the existence of that third type of effect of collusion on prices has 
not been proved. 
224 The above findings are in no way altered by the producers' subjective appraisal, 
on which the Commission relied in reaching the view that the cartel was largely 
successful in achieving its objectives. In that regard, the Commission referred to a 
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JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
list of documents which it produced at the hearing. However, even supposing that 
it could base its assessment of the success of the price initiatives on documents 
showing the subjective opinions of certain producers, it must be observed that 
several undertakings, including the applicant, rightly referred at the hearing to a 
number of other documents in the file showing the problems encountered by the 
producers in implementing the agreed price increases. In those circumstances, the 
Commission's reference to the statements of the producers themselves is insuffi­
cient for a conclusion that the cartel was largely successful in achieving its objec­
tives. 
225 Having regard to the foregoing considerations, the effects of the infringement 
described by the Commission are only partially proved. The Court will consider 
the implications of that conclusion as part of the exercise of its unlimited powers 
in regard to fines, when it assesses the seriousness of the infringement found in the 
present case (see paragraph 246 below). 
The plea that there was no system of sanctions to compel undertakings to observe 
the cartel's rules 
Arguments of the parties 
226 The applicant submits that the fact that there were no plans for economic or moral 
measures in order to compel undertakings to apply announced price increases 
should lead to a reduction in the fine. The Commission's assertion that there was 
a system of sanctions is incorrect and not supported by any evidence. 
II -1304 
WEIG ν COMMISSION 
227 Admittedly, according to the statement of 22 March 1993 made at the applicant's 
request by Mr Roos (Feldmühle's representative at PWG meetings), the applicant 
was asked to explain its uncooperative behaviour. However, that does not amount 
to a sanction. The applicant did not change its approach and the undertakings' 
conducted themselves on the basis of their own freely-adopted decisions. Stora's 
statements do not refer to any system of sanctions. 
Findings of the Court 
228 Contrary to the applicant's submission, the Decision does not allege that the 
undertakings to which it is addressed had established a 'system of sanctions' in 
order to force them to observe the cartel's decisions. Nor does the applicant 
specify which of the Commission's findings in the Decision is incorrect. 
229 Moreover, it is not apparent from points 167 to 172 of the Decision that the exist­
ence of sanctions or coercive measures was a factor taken into account in order to 
determine the amount of the fines. 
230 In those circumstances, the plea must be rejected. 
The plea alleging that the general level of the fines is excessive 
Arguments of the parties 
231 The applicant states that according to the information divulged by the member of 
the Commission responsible for competition policy at the press conference of 
I I - 1305 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
13 July 1994 the fines of 9% imposed on the alleged 'ringleaders' represented more 
or less the maximum fine. 
232 The infringement found in this case is not the most serious infringement of Article 
85(1) of the Treaty. There was no volume control; the price increases were the 
result not of agreement but of mere collusion between the producers; the infringe­
ments were not enforced by a system of sanctions and had, at the very most, quite 
minor effects on the market. The fine should also be reduced inasmuch as the Fides 
information exchange system was regarded as a factor which made the infringe­
ment particularly reprehensible. 
233 Furthermore, the Commission wrongly assessed the gravity of the infringements 
in question by failing to take account of the fact that they took place within a trade 
association which also pursued lawful activities. 
234 Lastly, the Commission wrongly took the view that meetings of the PG Paper-
board were secret. On the contrary, there were lists of participants and the absence 
of minutes is explained by the content of the discussions at the meetings. The 
absence of minutes is, moreover, inherent in cooperation involving discussions 
with a partially anti-competitive object. 
235 The applicant concludes that the infringement found in this case is certainly not as 
serious as the cartels previously discovered by the Commission (see, in particular, 
the Polypropylene decision). 
II -1306 
WEIG ν COMMISSION 
236 The Commission considers that the gravity of the infringement fully justifies the 
level of the fines imposed. The cartel in question involved not only agreements on 
prices and market shares but also measures to control the supply of cartonboard 
and measures which enabled the price initiatives to be implemented and which pre­
vented the normal evolution of prices. The unlawfulness of the actions is manifest; 
agreements on prices and market shares are expressly prohibited by Article 85 of 
the Treaty. 
237 The applicant's argument that the PG Paperboard's activities were in essence the 
normal activities of a trade association is neither credible for substantiated. More­
over, it is irrelevant that the PG Paperboard may have also pursued lawful objec­
tives. 
238 Another important factor when assessing the gravity of the infringement is the 
secrecy practised within the cartel. Although an absence of notes is a typical fea­
ture of unlawful arrangements, the measures adopted by the PG Paperboard went 
well beyond the usual measure of secrecy. First, the members were given express 
instructions not to take notes, a fact admitted by the managing director of Gruber 
& Weber at the oral hearing (minutes, p. 46). Second, the undertakings attempted 
to disguise the existence of the agreements by changing, for each price initiative, 
the order in which the undertakings announced the price increase in question 
(point 73 of the Decision). 
239 Lastly, when assessing the gravity of the infringement, it is also necessary to take 
into account the other criteria set out in point 168 of the Decision. 
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JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
Findings of the Court 
240 Having regard to the Court's findings relating to the pleas in support of the appli­
cation for annulment in whole or in part of Article 1 of the Decision, the appli­
cant's arguments alleging that there was no volume control or agreement on prices 
must be rejected. The same applies to the argument that there was no 'system of 
sanctions' (see points 228 and 229 above). 
241 In the present case, the Commission determined the general level of fines by taking 
into account the duration of the infringement (point 167 of the Decision) and the 
following considerations (point 168): 
'— collusion on pricing and market sharing are by their very nature serious 
restrictions on competition, 
— the cartel covered virtually the whole territory of the Community, 
— the Community market for cartonboard is an important industrial sector worth 
some ECU 2 500 million each year, 
— the undertakings participating in the infringement account for virtually the 
whole of the market, 
— the cartel was operated in the form of a system of regular institutionalised 
meetings which set out to regulate in explicit detail the market for cartonboard 
in the Community, 
II -1308 
WEIG ν COMMISSION 
— elaborate steps were taken to conceal the true nature and extent of the collusion 
(absence of any official minutes or documentation for the PWG and JMC; dis­
couraging the taking of notes; stage-managing the timing and order in which 
price increases were announced so as to be able to claim they were "following", 
etc.), 
— the cartel was largely successful in achieving its objectives.' 
242 Furthermore, as the Court has already pointed out, according to the Commission's 
reply to a written question from the Court, fines of a basic level of 9 or 7.5% of 
the turnover on the Community cartonboard market in 1990 of each undertaking 
addressed by the Decision were imposed on the undertakings regarded as the 
'ringleaders' of the cartel and on the other undertakings respectively. 
243 It should be pointed out, first, that when assessing the general level of fines the 
Commission is entitled to take account of the fact that clear infringements of the 
Community competition rules are still relatively frequent and that, accordingly, it 
may raise the level of fines in order to strengthen their deterrent effect. Conse­
quently, the fact that in the past the Commission applied fines of a certain level to 
certain types of infringement does not mean that it is estopped from raising that 
level, within the limits set out in Regulation N o 17, if that is necessary in order to 
ensure the implementation of Community competition policy (see, inter alia, 
Joined Cases 100/80, 101/80, 102/80 and 103/80 Musique Diffusion Française and 
Others ν Commission [1983] ECR 1825, paragraphs 105 to 108, and ICI ν Com­
mission, cited above, paragraph 385). 
244 Second, the Commission rightly argues that, on account of the specific circum­
stances of the present case, no direct comparison could be made between the 
general level of fines adopted in the present decision and those adopted in the 
II-1309 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
Commission's previous decisions, in particular in the Polypropylene decision, 
which the Commission itself considered to be the most similar to the decision in 
the present case. Unlike in the Polypropylene case, no general mitigating circum­
stance was taken into account in the present case when determining the general 
level of fines. Moreover, the adoption of measures to conceal the existence of the 
infringement shows that the undertakings concerned were fully aware that their 
conduct was unlawful. The Commission was therefore entitled to take those mea­
sures into account when it assessed the gravity of the infringement because they 
were a particularly serious aspect of it which differentiated it from infringements 
previously found by the Commission. 
245 Third, the Court notes the lengthy duration and obviousness of the infringement 
of Article 85(1) of the Treaty which was committed despite the warning which the 
Commission's previous decisions, in particular the Polypropylene decision, should 
have provided. The applicant's argument that the PG Paperboard carried on lawful 
activities is irrelevant, because it has already been found that its bodies, in particu­
lar the PWG and the JMC, had an essentially anti-competitive object. 
246 On the basis of those factors, the criteria set out in point 168 of the Decision jus­
tify the general level of fines set by the Commission. Admittedly, the Court has 
already held that the effects of the collusion on prices, which the Commission took 
into account when determining the general level of fines, are proved only in part. 
However, in the light of the foregoing considerations, that conclusion cannot 
materially affect the assessment of the gravity of the infringement found. The fact 
that the undertakings actually announced the agreed price increases and that the 
prices so announced served as a basis for fixing individual transaction prices suf­
fices in itself for a finding that the collusion on prices had both as its object and 
effect a serious restriction of competition. Accordingly, in the exercise of its unlim­
ited jurisdiction, the Court considers that the findings relating to the effects of the 
infringement do not justify any reduction in the general level of fines set by the 
Commission. 
II-1310 
WEIG ν COMMISSION 
247 This plea must therefore be rejected. 
The plea that the Commission incorrectly assessed the applicant's participation in 
the cartel 
Arguments of the parties 
248 The applicant submits that the amount of the fine imposed on it is excessive 
because the Commission did not correctly assess its participation in the infringe­
ment. 
249 First, the Commission did not properly take into account the applicant's negligible 
participation in meetings of the various bodies of the PG Paperboard. 
250 The Commission wrongly found that the applicant had been a 'member' of the 
PWG since 1988 (point 170, third paragraph of the Decision). Although a repre­
sentative of the applicant seems to have participated in a PWG meeting in 
February/March 1988, he did not inform the applicant's senior managemerial staff 
of his participation or even of the existence of the PWG. They learned of the 
PWG's existence only at the PG Paperboard's general meeting in May 1988 in 
Barcelona. Having been invited to the PWG meeting, which was to be held before 
that of the PC, they decided to attend merely in order to ascertain what was being 
discussed in it. As the PWG's meetings were ultimately of no interest to them, 
they did not take part in any meeting in 1988. 
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JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
251 Only in May 1989 did the applicant start to take part more or less regularly in 
PWG meetings. On two occasions in 1988-1989, Feldmiihle's representative at 
PWG meetings (Mr Roos) visited the applicant's directors in order to persuade 
them to participate regularly in the meetings. The applicant's decision to partici­
pate in them is explained by the fact that there was a possibility that the large 
groups, which already controlled the market at that time, might begin a price war 
in order to force their smaller competitors out of the market. In order to preserve 
its independence, the applicant therefore decided to participate in PWG meetings 
so as to gain access to the exchange of information between undertakings repre­
sented in the PWG and JMC. 
252 Ultimately it participated in only nine of the 21 PWG meetings which the Com­
mission found to have taken place (point 39 of the Decision). 
253 It participated in the other bodies of the PG Paperboard only irregularly or not at 
all: in eight JMC meetings between March 1988 and April 1991, seven of the 11 PC 
meetings which the Commission found to have taken place between 1986 and 
1991, but in no meetings of the Economic Committee. 
254 Second, the Commission failed to take due account of the applicant's entirely pas­
sive role in the various bodies of the PG Paperboard. The applicant refers to Mr 
Roos' statement (see paragraph 227 above), which confirms, first, that the appli­
cant participated in the PWG meetings only after he had convinced its directors 
that it would be useful to do so and, second, that it played a passive role and, in 
particular, played no part in the conclusion of the agreements. His statement also 
confirms the applicant's passive role in the JMC and shows that it was regarded as 
a reluctant and uncooperative participant. 
II -1312 
WEIG ν COMMISSION 
255 Finally, the applicant did not play any part in the exchange of information between 
the PWG and the PC. 
256 The Commission states that the applicant has admitted that it participated in meet­
ings of three of the four committees of the PG Paperboard. At a number of meet­
ings in which it participated the participants exchanged information and colluded 
in regard to price increases, capacities, volumes and possible downtime. Further­
more, the applicant conducted itself, at least as regards price increases, in line with 
the actions of the other undertakings and therefore used the information for its 
own benefit. 
257 Moreover, the applicant was a member of the PWG with effect from 1988 and 
took part in almost all meetings of that body from 1989 onwards. The PWG was 
the central body of the cartel and discussed and elaborated the cartel's strategies. 
The fact that the applicant participated in the PWG's meetings justifies the finding 
that it was a more than average participant in the cartel. 
258 O n the basis of the applicant's participation in meetings of the central body of the 
cartel and its position as second largest German producer of G D grades, the Com­
mission correctly took the view that a higher fine — corresponding to approxi­
mately 8% of its turnover in cartonboard in the Community in 1990 — should be 
imposed on it than on undertakings which participated in the cartel only to an 
average extent. However, in not imposing a fine of the same order as that imposed 
on the cartel 'ringleaders', the Commission duly took into account the fact that the 
applicant's role was less significant than that of the large industrial groups. 
259 Lastly, the applicant cannot play down its role in the cartel by relying on the state­
ment of Mr Roos. Even if it were accepted that the other participants considered 
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JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
the applicant to be an uncooperative undertaking, it nevertheless cooperated in the 
price initiatives and therefore contributed to the success of the cartel. 
Findings of the Court 
260 The Court has already pointed out that, according to the Commission's reply to a 
written question from the Court, fines of a basic level of 9 or 7.5% of the turnover 
on the Community cartonboard market in 1990 of each undertaking addressed by 
the Decision were imposed on the undertakings regarded as the 'ringleaders' of the 
cartel and on the other undertakings respectively. It has also been noted that the 
amount of the fine imposed on the applicant corresponds to a rate of 8% of its 
turnover on the Community cartonboard market in 1990, that amount being 
reduced by one-third on the ground that in its reply to the statement of objections 
the applicant did not contest the essential factual allegations on which the Com­
mission founded its objections against it. 
261 In assessing whether that level of fine is justified, the Court points out, first, that 
the applicant accepts that it participated in one meeting of the PWG in May 1988 
and that it participated on a more or less regular basis ('eine mehr oder weniger 
regelmäßige Teilnahme') in meetings of that body from May 1989 onwards. Fur­
thermore, it states that as a result of investigations carried out by its lawyer it dis­
covered that a former manager 'evidently participated in February/March 1988 in 
one meeting of the PWG' ('offenbar im Februar/März 1988 an einer einzigen Sit­
zung der PWG teilgenommen hat') but did not inform the applicant's directors of 
that fact or even of the existence of the PWG. The Court also points out in that 
regard that although the Commission indeed states that the applicant was a 'mem­
ber' of the PWG from 1988 (point 170, third paragraph of the Decision), it does 
not claim that the applicant took part in PWG meetings other than those to which 
the applicant itself refers. 
II -1314 
WEIG ν COMMISSION 
262 It follows from the Court's findings relating to the applicant's pleas in support of 
its application for annulment in whole or in part of Article 1 of the Decision that 
the nature of the PWG's functions, as set out in the Decision, has been demon­
strated by the Commission. 
263 In those circumstances, the Commission was fully entitled to conclude that the 
undertakings which participated in the meetings of that body had to be regarded, 
in principle, as 'ringleaders' of the infringement found and that accordingly they 
had to bear special responsibility (see point 170, first paragraph, of the Decision). 
It did not, however, include the applicant amongst the 'ringleaders' of the infringe­
ment, because it did not seem to have played as important a role in the determina­
tion of the policy of the cartel as the other participants in those meetings (point 
170, third paragraph, of the Decision). 
264 The Commission correctly assessed the applicant's role by taking into account, 
first, the fact that it had participated in the PWG meetings in which the main deci­
sions with an anti-competitive object had been taken and, second, the fact that it 
had played a less important part in the determination of the cartel's policy. In so 
doing, the Commission also duly took into account the information in the state­
ment of Mr Roos concerning the part played by the applicant in the cartel. 
265 In those circumstances, the applicant's explanation that it participated in the meet­
ings of the PWG only in order to gain access to the information exchanged 
between the undertakings represented there merely confirms that its participation 
had an essentially anti-competitive purpose. 
266 Finally, having regard to the fact that the applicant participated in meetings of the 
PWG, in which the main decisions with an anti-competitive object had been taken, 
the Commission rightly found that the infringement committed by the applicant 
II-1315 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
was more serious than that committed by the other undertakings characterized as 
'ordinary members' of the cartel, which had not been represented in the PWG. 
267 Having regard to the whole of the foregoing considerations, this plea must be 
rejected. 
The plea that insufficient account was taken of the applicant's cooperation in the 
procedure 
Arguments of the parties 
268 This plea is in two parts. 
269 In the first part of the plea, the applicant submits that the Commission should 
have taken into account the fact that it replied fully and truthfully to the request 
for information sent under Article 11 of Regulation N o 17. As the Commission 
did not carry out investigations at the applicant's premises, the applicant was 
unaware that the Commission had discovered documents which would lead it to 
conclude that there had been a serious infringement of Article 85 of the Treaty. 
Furthermore, as the applicant had participated in the PG Paperboard only to a 
limited extent, it was not aware of the full facts which had been established by the 
Commission. That being the case, it could not have cooperated more actively with 
the Commission at that time. 
270 In the second part of the plea, it submits that, according to the case-law and the 
Commission's practice, the discontinuance, immediately after the Commission's 
investigations were carried out on 23 April 1991, of its participation in meetings of 
II-1316 
WEIG ν COMMISSION 
the PG Paperboard and in any practice which might have constituted an infringe­
ment must be regarded as a mitigating factor (see, in particular, Case T-43/92 Dun-
lop Slazenger ν Commission [1994] ECR II-441, paragraph 146). 
271 In the third part of the plea, it submits that the Commission, when calculating the 
fine, took no account of the fact that applicant's active cooperation had contrib­
uted to the speedy conclusion of the procedure. It was only upon receipt of the 
statement of objections that it learned that the Commission was alleging that it had 
committed a serious infringement of Article 85 of the Treaty. However, in its letter 
of 23 March 1993, that is to say, before the end of the period fixed for its reply to 
the statement of objections, the applicant admitted that it had infringed Article 85 
of the Treaty by participating in discussions on price increases and in a general 
exchange of views on the maintenance of quantities to be sold. That admission that 
there had been an infringement of Article 85 of the Treaty was wholly voluntarily 
and clearly led other undertakings also to admit, or at least not to contest, the 
substance of the infringement. 
272 The applicant was the only undertaking which expressly stated at the hearing 
before the Commission that it did not contest the essence of the infringement 
alleged by the Commission. It was also, with Cascades, the only undertaking to 
give all the dates of the meetings at which it was represented. Lastly, it sent the 
Commission Mr Roos' statement, to which the Commission referred on several 
occasions at the hearing and which is referred to indirectly in point 59 of the 
Decision, where it is stated that the applicant was taken to task because of the 
increase in its market share. 
273 As that active cooperation was not taken into account, the applicant has been 
treated less favourably than Stora in particular. Stora cooperated only after the 
Commission had carried out its investigations. Furthermore, Stora was aware not 
only of the compromising documents which the Commission had found at under­
takings in the Stora group, but also of documents found at other undertakings. It 
is also apparent from the correspondence between Stora and the Commission 
II-1317 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
(appendices 34 to 43 to the statement of objections) that Stora's admission was not 
immediate and that the Commission in fact had to extract various items of infor­
mation from Stora. In those circumstances, the applicant should have benefited 
from its cooperation to the same extent as Stora, that is to say, the amount of the 
fine should have been reduced by two-thirds. 
274 Moreover, the Commission did not offer the smaller producers an opportunity to 
cooperate at an early stage, since they were not made aware of Stora's cooperation 
or of the evidence which the Commission had obtained. 
275 Lastly, because the evidence of its active cooperation with the Commission was 
not taken into account, the applicant was also treated less favourably than the 
other undertakings which received a one-third reduction in their fines for not con­
testing the main factual allegations. 
276 The Commission states that the applicant's fine was reduced by a one-third 
because it did not contest the essential factual allegations in the statement of objec­
tions (point 172 of the Decision). There were no grounds for any greater reduc­
tion. 
277 The fact that the applicant replied fully and truthfully to the request for infor­
mation cannot justify a reduction in the fine, since it was legally obliged to do so. 
278 The applicant's argument that it was unable to cooperate actively at an early stage 
of the procedure cannot be accepted. It was open to it to clarify the facts and 
so contribute actively to the rapid conclusion of the procedure. Moreover, the 
II-1318 
WEIG ν COMMISSION 
applicant exaggerates the value of the statement made by Mr Roos. The purpose of 
that statement was not merely to clarify the facts but also to defend the applicant. 
279 It was not treated less favourably than Stora. Stora cooperated spontaneously and 
actively and helped to clarify the facts significantly in its reply to the requests for 
information of 30 August and 23 October 1991. By contrast, it was only in a letter 
of 23 March 1993, that is to say, after service of the statement of objections, that 
the applicant admitted that it might have participated in an infringement of com­
petition law. At that stage, its cooperation still amounted to the non-contestation 
of the essential allegations made against it. Such conduct, already rewarded by a 
one-third reduction in the fine, cannot be regarded as active cooperation. 
Findings of the Court 
280 The applicant received a one-third reduction in the fine, because, according to the 
Decision, in its reply to the statement of objections it did not contest the essential 
factual allegations relied upon by the Commission against it. 
281 A reduction on grounds of cooperation during the administrative procedure is jus­
tified only if the undertaking's conduct made it easier for the Commission to 
establish an infringement and, as the case may be, to put an end to it (ICI ν Com­
mission, cited above, paragraph 393). Accordingly, an undertaking which expressly 
states that it is not contesting the factual allegations on which the Commission 
bases its objections may be regarded as having facilitated the Commission's task of 
finding and bringing to an end infringements of the Community competition rules. 
The Commission is entitled to take the view that such conduct constitutes an 
II-1319 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
acknowledgement of the factual allegations and thus proves that those allegations 
are correct. 
282 In the present case, none of the arguments upon which the applicant relies can 
show that its cooperation with the Commission went beyond an acknowledgment 
of the Commission's factual allegations. 
283 In the first part of the plea, the applicant submits that it replied fully and truthfully 
to the request for information sent to it by the Commission under Article 11 of 
Regulation N o 17. It is, however, settled law that cooperation in an investigation 
which does not go beyond that which undertakings are required to provide under 
Article 11(4) and (5) of Regulation N o 17 does not justify a reduction in the fine 
(see, for example, Case T-12/89 Solvay ν Commission [1992] ECR II-907, para­
graphs 341 and 342). Moreover, the applicant, which participated in the infringe­
ment with effect from March 1988 and was therefore aware of the functions of the 
PWG and JMC, could in fact have cooperated more actively with the Commission, 
as Stora did, and so have given grounds for a greater reduction in the fine. Its argu­
ment that at the material time it lacked the information required in order to pro­
vide active assistance to the Commission must therefore be rejected. 
284 As regards the second part of the plea, namely that after the investigations had 
been carried out by the Commission on 23 April 1991 (see paragraph 8 above) the 
applicant immediately ceased to participate in meetings of the PG Paperboard and 
in any practice capable of constituting an infringement, the Court points out that 
the gravity of infringements falls to be determined by reference to numerous fac­
tors and that no binding or exhaustive list of criteria to be applied has been drawn 
up (see paragraph 183 above). Consequently, although the discontinuance of an 
infringement before service of the statement of objections may, in principle, be 
regarded as a factor mitigating the gravity of the infringement which an undertak­
ing is found to have committed, the Commission was not required to reach such a 
conclusion in the particular circumstances of this case. Since the applicant has not 
adduced any argument to show that the Commission exceeded the limits of the 
II -1320 
WEIG ν COMMISSION 
discretion which it enjoys when determining which factors should be taken into 
account in order to fix the amount of the fine, the second part of the plea must be 
rejected. 
285 N o r can the Court uphold the third part of the plea, to the effect that the applicant 
actively cooperated with the Commission. 
286 The applicant submits that it supplied full details of its participation in meetings of 
the various committees of the PG Paperboard. It points out, moreover, that at the 
hearing before the Commission it expressly stated that it was not contesting the 
essential factual allegations levelled against it. However, the Court finds that such 
cooperation with the Commission did not justify a greater reduction in the fine 
than the one-third reduction actually made. Mr Roos' statement, which the appli­
cant sent to the Commission with its reply to the statement of objections, did not 
contain any evidence which could have served to facilitate the Commission's task 
in a material respect. It suffices to find in that regard that the Decision contains 
only one — indirect — reference to the information supplied in that statement 
(point 59, last paragraph). 
287 Lastly, in so far as the applicant submits that it has been the subject of discrimi­
nation in comparison with Stora and Rena, the Court points out that, in accord­
ance with settled law, the principle of equal treatment, a general principle of Com­
munity law, is infringed only where comparable situations are treated differently 
or different situations are treated in the same way, unless such difference in treat­
ment is objectively justified (Case 106/83 Sermide [1984] ECR 4209, paragraph 28, 
Case C-174/89 Hoche [1990] ECR 1-2681, paragraph 25; to the same effect Case 
T-100/92 La Pietra ν Commission [1994] ECR-SC II-275, paragraph 50). 
II -1321 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
288 In the present case Stora supplied the Commission with statements containing a 
very detailed description of the nature and object of the infringement, the opera­
tion of the various bodies of the PG Paperboard and the participation in the 
infringement of various producers. By those statements, Stora supplied infor­
mation going well beyond that which may be required by the Commission pursu­
ant to Article 11 of Regulation N o 17. Although the Commission states in the 
Decision that it obtained evidence corroborating the information contained in Sto­
ra's statements (points 112 and 113 of the Decision), it is clearly apparent that 
Stora's statements constituted for the Commission the principal evidence of the 
existence of the infringement. It must therefore be concluded that without Stora's 
statements it would at the very least have been much more difficult for the Com­
mission to find and, where necessary, put an end to the infringement with which 
the Decision is concerned. In the light of those considerations, the applicant can­
not validly claim that the principle of equal treatment requires that the reduction 
in its fine should have been similar to that granted to Stora. 
289 Furthermore, since the applicant' has not proved that its cooperation with the 
Commission went beyond an admission of its factual allegations, the applicant was 
not treated less favourably than the other undertakings which received a one-third 
reduction in their fine. 
290 Having regard to the foregoing considerations, the whole of the plea must be 
rejected. 
The plea that the fine imposed on the applicant was excessive in comparison with 
the Commission's previous practice 
291 The applicant submits that, as the Commission has acknowledged (in the Thir­
teenth Report on Competition Policy, point 64), the Commission must take the 
principle of proportionality into account when it fixes the amount of fines. The 
fine imposed on the applicant is excessive in the light of the Commission's previ­
ous practice. 
II -1322 
WEIG ν COMMISSION 
292 The Commission has imposed fines of E C U 3 million only on undertakings with 
a turnover of several billion ecus. Moreover, such fines have been imposed most 
often in cases of repeated infringements. 
293 The Court points out that it has found that the general level of fines adopted by 
the Commission was justified even in the light of the Commission's previous prac­
tice (see paragraph 240 et seq. above). It has also found that the Commission cor­
rectly assessed the applicant's role in the infringement (see paragraph 260 et seq. 
above). 
294 This plea cannot therefore be upheld. 
The plea that the Commission failed to take into account the fact that the applicant 
manufactures only one product and is restricted in its ability to compete 
Arguments of the parties 
295 The applicant submits that the Commission must fix the amount of the fine on the 
basis of the total turnover of each undertaking, which gives an indication of its size 
and economic power (Dunlop Sføzenger ν Commission, cited above, paragraph 
160). In its judgment in Case T-77/92 Parker Pen ν Commission [1994] ECR 
11-549, paragraph 94, the Court held that the Commission cannot fix the fine 
solely on the basis of the turnover accounted for by the goods in respect of which 
the infringement was committed (see also Musique Diffusion Française and Others 
ν Commission, cited above, paragraph 121). 
II -1323 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
296 In the present case, the Commission took into account exclusively turnover from 
goods in respect of which the infringement was committed. Where an undertaking, 
like the applicant, largely achieves its turnover from one product in respect of 
which the infringement was committed, that approach treats it less favourably than 
undertakings which also manufacture other products. The fine imposed on the 
applicant amounts to a relatively high proportion of its total turnover, whereas, for 
example, in Stora's case the fine constitutes an insignificant part of its total turn­
over. The applicant is therefore much more severely affected by the fine than 
undertakings which committed a much more serious infringement. 
297 Lastly, as a result of the excessive amount of the fine the applicant's ability to 
invest has been seriously impaired for several years, so that there is an increased 
risk that it will be taken over by one of the large undertakings on the market. 
298 The Commission contends that, inasmuch as the applicant manufactured only one 
product, it derived particular benefit from a cartel which covered the whole of its 
cartonboard production. The fine was therefore correctly fixed on the basis of the 
applicant's turnover on the Community cartonboard market. Furthermore, the 
applicant's total turnover in 1990 was almost ECU 11 million higher than the turn­
over figure used in order to calculate the fine. 
Findings of the Court 
299 As already stated, the gravity of infringements falls to be determined by reference 
to numerous factors and no binding or exhaustive list of criteria to be applied has 
been drawn up (see paragraph 183 above). 
II -1324 
WEIG ν COMMISSION 
300 T h o s e factors may, depending o n the circumstances, include the vo lume and value 
of the goods in respect of which the infringement was committed and the size and 
economic power of the undertaking and, consequently, the influence which the 
undertaking was able to exert on the market. It follows that it is permissible, for 
the purpose of fixing the fine, to have regard both to the total turnover of the 
undertaking, which gives an indication, albeit approximate and imperfect, of the 
size of the undertaking and of its economic power, and to the proportion of 
that turnover accounted for by the goods in respect of which the infringement 
was committed, which gives an indication of the scale of the infringement 
(Musique Diffusion Française and Others ν Commission, cited above, paragraphs 
120 and 121). 
301 Furthermore, the Commission should ordinarily use one and the same method of 
calculating the fines imposed on undertakings penalised for having participated in 
the same infringement (see Musique Diffusion Française and Others ν Commission, 
cited above, paragraph 122). The Commission cannot therefore be criticised for 
having systematically taken, as a basis for calculating the fines, the undertaking's 
turnover on the Community cartonboard market in 1990 solely from goods in 
respect of which the infringement was committed. 
302 In those circumstances, the applicant cannot validly claim that the Commission's 
method operated to its disadvantage, particularly since it does not dispute the 
Commission's assertion that its total turnover in 1990 was higher than the turn­
over figure applied by the Commission. 
303 This plea must therefore also be rejected. 
304 It follows from the whole of the foregoing that Article 1 of the Decision must be 
annulled in regard to the applicant in so far as it states that the applicant partici­
pated in an infringement of Article 85(1) of the Treaty prior to March 1988. Article 
2 of the Decision must be annulled in part as regards the applicant. 
II -1325 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
305 As regards the amount of the fine imposed, it is necessary to take into account the 
fact that the applicant can be held responsible for infringement of Article 85(1) of 
the Treaty only in respect of the period from March 1988 until April 1991. 
306 As the other pleas relied upon by the applicant in support of its application for 
annulment or reduction of the fine have been rejected, the Court, exercising its 
unlimited jurisdiction, will set the fine at E C U 2 500 000. 
Costs 
307 Under Article 87(3) of the Rules of Procedure, the Court may, where each party 
succeeds on some and fails on other grounds, order costs to be shared or order 
each party to bear its own costs. As the action has been only partially successful, 
the Court considers it fair in the circumstances of the case to order each party to 
bear its own costs. 
308 The applicant has sought an order that the Commission should pay the costs, 
including those associated with the provision of a bank guarantee. However, it is 
settled law that expenses incurred in providing a bank guarantee in order to avoid 
the enforcement of a decision are not expenses incurred for the purpose of the 
proceedings within the meaning of Article 91(b) of the Rules of Procedure (see the 
order of 20 November 1987 in Case 183/83 Krupp ν Commission [1987] ECR 
4611, paragraph 10, and Parker Pen ν Commission, cited above, paragraph 101). 
II -1326 
WEIG ν COMMISSION 
O n those grounds, 
T H E C O U R T O F FIRST INSTANCE 
(Third Chamber, Extended Composition) 
hereby: 
1) Annuls, as regards the applicant, Article 1 of Commission Decision 
94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the 
EC Treaty (IV/C/33.8333 — Cartonboard) in so far as the date of the begin­
ning of the infringement alleged against it is stated to be prior to March 
1988; 
2) Annuls, as regards the applicant, the first to fourth paragraphs of Article 2 
of Commission Decision 94/601/EC save and except the following passages: 
'The undertakings named in Article 1 shall forthwith bring the said 
infringement to an end, if they have n o t already done so. They shall hence­
forth refrain in relation to their cartonboard activities from any agreement 
or concerted practice which may have the same or a similar object or effect, 
including any exchange of commercial information: 
(a) by which the participants are directly or indirectly informed of the pro­
duction, sales, order backlog, machine utilisation rates, selling prices, 
costs or marketing plans of other individual producers. 
II -1327 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
Any scheme for the exchange of general information to which they sub­
scribe, such as the Fides system or its successor, shall be so conducted as to 
exclude any information from which the behaviour of individual producers 
can be identified.'; 
3) Sets the amount of the fine imposed on the applicant by Article 3 of 
Decision 94/601 at ECU 2 500 000; 
4) Dismisses the application as regards the remaining claims; 
5) Orders each party to bear its own costs. 
Vesterdorf Briet Lindh 
Potocki Cooke 
Delivered in open court in Luxembourg on 14 May 1998. 
H. Jung 
Registrar 
B. Vesterdorf 
President 
II - 1328 
WEIG ν COMMISSION 
Summary 
Facts II - 1242 
Procedure II - 1249 
Forms of order sought II - 1251 
The application for annulment, in whole or in part, of Article 1 of the Decision II - 1252 
The plea that the applicant did not participate in volume control measures II - 1252 
Arguments of the parties II - 1252 
Findings of the Court II - 1256 
— Existence of concerted action to freeze market shares and to control 
supply II - 1256 
— The applicant's actual conduct II - 1264 
Error by the Commission regarding the duration of the infringement II - 1265 
Arguments of the parties II - 1265 
Findings of the Court II - 1267 
The plea that there were no agreements concerning price increases II - 1274 
Arguments of the parties II - 1274 
Findings of the Court II - 1276 
The application for annulment of Article 2 of the Decision II - 1280 
Arguments of the parties II - 1280 
Findings of the Court II - 1283 
The claim for annulment or reduction of the amount of the fine II - 1289 
The plea alleging infringement of Article 190 of the Treaty in regard to the calculation of 
the fines II - 1289 
Arguments of the parties II - 1289 
Findings of the Court II - 1292 
The plea that the infringements had no economic effects II - 1296 
Arguments of the parties II - 1296 
Findings of the Court II - 1300 
II - 1329 
JUDGMENT OF 14. 5. 1998 — CASE T-317/94 
The plea that there was no system of sanctions to compel undertakings to observe the 
cartel's rules II - 1304 
Arguments of the parties II - 1304 
Findings of the Court II - 1305 
The plea alleging that the general level of the fines is excessive II - 1305 
Arguments of the parties II - 1305 
Findings of the Court II - 1308 
The plea that the Commission incorrectly assessed the applicant's participation in the 
cartel II - 1311 
Arguments of the parties II - 1311 
Findings of the Court II - 1314 
The plea that insufficient account was taken of the applicant's cooperation in the pro­
cedure II - 1316 
Arguments of the parties II - 1316 
Findings of the Court II - 1319 
The plea that the fine imposed on the applicant was excessive in comparison with the 
Commission's previous practice II - 1322 
The plea that the Commission failed to take into account the fact that the applicant 
manufactures only one product and is restricted in its ability to compete II - 1323 
Arguments of the parties II - 1323 
Findings of the Court II - 1324 
Costs II - 1326 
I I - 1 3 3 0