Opinion of the Advocate General — ECLI:EU:C:2003:80
Date: 2003-02-11
Language of the case: Danish;English;French;Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal - successful;Appeal against penalty - successful
Origin: Denmark;France;Ireland;Italy

summary notes dated 12 November 1984, from which it was inferred that the purpose of support for the Greco-Spanish agreement was to avoid the risk of a destabilisation in Europe, and also the Blue Circle internal memorandum of 1 December 1983, from which it follows that non-transhipment to home markets and the channelling of exports went hand in hand. 110. One may be more or less in agreement with the logic followed by the Court of First Instance, but, of course, one cannot attribute to it the defects capable of justifying the Court of Justice's interference in an area which, like the assessment of evidence, is in principle prohibited to it. 111. It is true that, taken in isolation, the meeting of 7 November 1984 does not prove anything, but, if it is taken together with other documents which describe it and with the meetings held in January 1983 and March 1984, including those relating to their preparation and conduct, and also with the subsequent implementing measures, the assessments made by the Commission and the Court of First Instance acquire their full meaning. Much as one does when looking at an impressionist painting, one must stand back in order to contemplate it as a whole and understand it in its entirety. 112. The appellant also errs where it claims to find a contradiction in the reasoning of the judgment where it classifies as specific evidence a matter which in its opinion is a mere deduction. It is confusing the probative material with the logical inferences drawn by the Court of First Instance. Of course, the minutes and other documents used are specific, material and tangible evidence, which, after being assessed and evaluated in its entirety, made it possible to establish that the Cembureau agreement existed. (d) The other elements of assessment 113. Once again, Cementir is disputing the evaluation of the evidence by the Court of First Instance and is confusing the right to obtain a judicial answer with the desire that it be consistent with the allegations put forward. However, the judgment under appeal accepts that, even though intra-Community trade was not dealt with at the meetings of 30 May 1983 and 10 June 1985, that does not shed a different light on the body of documentary evidence showing that an agreement not to tranship to home markets was concluded, and then confirmed, at the meetings held on 14 January 1983, 19 March and 7 November 1984. (79) 114. In short, the first head of the second plea in law put forward by Cementir must be rejected as inadmissible and unfounded. B - In the examination of the exchanges of price information (third plea in law, first head) (1) Arguments of the parties (a) The specific exchanges during the Head Delegates' meetings (Article 2(1) of the Decision) 115. The appellant contends that this infringement should not be imputed to it, because: (a) the data exchanged were of no interest from the point of view of competition; (b) the draft introductory statement of the Chairman of Cembureau for the meeting of 14 January 1983 was a general document from which the anti-competitive nature of the information exchanged could not be inferred; and (c) the documents relating to the meeting of 19 March 1984 could not apply to the appellant, because it was not present. 116. The Commission submits that this complaint is inadmissible, since it reiterates the arguments put forward at first instance. (b) The periodic exchanges (Article 2(2) of the Decision) 117. Cementir expresses its views on the draft introductory statement of the Chairman of Cembureau and states that it does not understand how a system involving information on known data, which was in practice before 14 January 1983, can be illegal. The documents relating to the meeting of 19 March 1984, which were drawn up by third parties, which were not addressed to it and referred to an event in which it did not participate, cannot concern it. The document on national average prices was not distributed at the meeting held in January 1983, but at the one held on 30 May 1983, which the appellant did not attend. In Cementir's submission, therefore, the Court of First Instance distorted the evidence which it examined and produced inadequate reasoning. 118. The Commission considers this complaint inadmissible, since Cementir is repeating what it submitted at first instance. Furthermore, the Court of First Instance's reasoning is clear and the appellant does not explain why the exchanges of price information at the Head Delegates' meetings could not form part of the periodic information system. One practice forms part of the other. The exchanges, which were lawful before the adoption of the Cembureau agreement, served anti-competitive purposes after 1983. The material error on the date of distribution of the table of prices corroborates its argument. Although it was distributed during a meeting which Cementir did not attend, the other evidence relating to the illegal nature of the cartel is not invalidated. (2) Cementir and the exchanges of price information 119. The Commission's contention that the plea is inadmissible is unfounded. It is sufficient to read Part III.1 of the appeal to find that, in addition to reproducing the arguments raised at first instance, Cementir is challenging the answer given in the contested judgment. 120. The appellant does not deny that price information was exchanged, but, as regards the information produced at the meetings of 14 January 1983 and 19 March 1984, (80) it draws attention to the fact that the Court of First Instance accepted that it did not attend the second meeting. (81) 121. Nor were the periodic exchanges of prices in Denmark, Ireland, Greece, Italy, Portugal, Germany, France, Spain and the United Kingdom discussed (82) or Cementir's participation between 1 January 1984 and 31 December 1988. (83) The decisive factor, according to the Commission, is that that practice, which had been in place since 1981, constituted from 1984 a means of applying the Cembureau agreement, because it facilitated its implementation. (84) 122. The Court of First Instance approved that conclusion on the basis of facts which were fully proven and undisputed: (i) the Head Delegates' meetings at which concern for the marked reduction in certain prices was expressed and at which information in that regard was distributed; (ii) the table of domestic prices referred to at paragraph 1646 of the judgment under appeal, which was distributed during the Head Delegates' meeting of 30 May 1983; (85) and (iii) the existence of the exchanges of information, which were apt to give indications of trends in price differences between the member countries of Cembureau (86) and to provide information with the aim of setting them at dissuasive levels. (87) The Court of First Instance inferred from such facts that the regular exchange of information following the adoption of the Cembureau agreement served to facilitate the implementation of the agreement. (88) 123. Against that background, Cementir's complaints lose all their consistency. 124. The Court of First Instance provided adequate reasons for its finding that the information exchanged was not only relevant from the point of view of competition but that it served the agreement on non-transhipment to home markets. (89) The fact that the information was public does not mean that its dissemination cannot have had as its object to collaborate in and facilitate the implementation of the Cembureau agreement. On the other hand, conduct which is lawful in principle may become illegal if it serves the purpose of an agreement which restricts competition. (90) 125. The Court of First Instance set out the reasons why the information was provided at the meeting of 14 January 1983 and specified the documents which supported such an assertion. (91) 126. The documents relating to the meeting of 19 March 1984 were not taken into account against Cementir, which was not held responsible by the Court of First Instance for exchanging information on grey cement prices. The appellant is again confusing two successive stages: the finding of the infringement and participation in its implementation by the various undertakings and associations of undertakings concerned. 127. It is certain that the table headed Domestic prices (exclusive of tax) was distributed not at the Head Delegates' meeting of 14 January 1983, as the Court of First Instance incorrectly states, but at the meeting of 30 May 1983, (92) but that error does not have the consequence that Cementir alleges. 128. The Court of First Instance used that document not to prove the infringement but to corroborate the validity of the assessment of that matter by the Commission. (93) Nor did it take that table into account for the purpose of proving that exchanges of information had taken place at the meeting of 14 January 1983, but to support its finding, on the basis of the material error, that such exchanges had not been effected at the second meeting, the one held on 30 May 1983. (94) C - In the examination of the measures to protect the Italian market (fourth plea in law) (1) The pressure brought to bear on Calcestruzzi (Article 4(3)(a) of the Decision) (first head) (a) Arguments of the parties 129. Cementir submits that none of the evidence used by the Court of First Instance indicates that it was one of the Italian cement producers which put pressure on the Ferruzzi group to ensure that Calcestruzzi ceased to implement the supply contract which it had signed with the Greek producer Titan: 1. The minutes of the Head Delegates' meeting held in Baden-Baden on 9 September 1986 could not be used against it, because it did not attend that meeting. 2. It did not take part in any of the meetings of the European Task Force, as the Court of First Instance acknowledged. 3. Furthermore, the letter from Titan to its English lawyers (95) does not show that the appellant's relationship with Calcestruzzi corresponded to a concerted practice with other European producers, since, although it intended to attract Calcestruzzi as a customer, it always acted on its own behalf and not within the framework of the European Task Force, a body of which it never formed part. 4. Last, the telexes which Italcementi and Calcestruzzi sent to Titan to confirm suspension of the agreed deliveries of cement do not presume the existence of anti-competitive practices. They only show that there was a trade agreement between various Italian producers and Calcestruzzi, to which Cementir adhered in its own interest, as did many others. 130. There is no evidence, therefore, that it participated in the infringement described in Article 4(3)(a) of the Decision. The findings of the Court of First Instance are not adequately reasoned, since it was not shown that Cementir's initiatives in relation to Calcestruzzi, which led to the negotiation of the SIPAC (Societá Italiana per le Promozioni ed Applicazioni del Calcestruzzo SpA) agreements, were objectively linked with agreements adopted at European level. 131. Cementir considers that, in the absence of other evidence, the Court of First Instance relied on a mere presumption which obliged it to produce a probatio diabolica to prove the absence of a non-existent connection, and consequently, in the appellant's opinion, the right to be presumed innocent was infringed. 132. The Commission contends that the plea is inadmissible on the ground that it refers to the assessment of the evidence. 133. The reference to the Italian cement producers cannot be criticised as very general, since Calcestruzzi's telex of 28 May 1987 to Titan refers to the various undertakings, including Cementir, by name, as well as referring to them as the Italian cement producers and the Italian cement industries. (b) Cementir and the pressure brought to bear on Calcestruzzi 134. Once again, Cementir is simply disputing the Court of First Instance's assessment of the evidence and the plea is therefore inadmissible. 135. Paragraphs 3151 to 3163 of the judgment under appeal all analyse the evidence and find that the Commission had sufficient reason to penalise the concerted practice described at Article 4(3)(a) of the Decision; more particularly, paragraphs 3283 to 3290 explain the participation by Cementir, which is once again confusing absence of reasoning or inadequate reasoning with rejection of its claims. 136. The plea is also unfounded. 137. The fact that the appellant did not attend the Baden-Baden meeting (96) or the meetings of the European Task Force (97) does not prove that it did not participate in the practice described at Article 4(3)(a) of the Decision. There is other evidence which implicates it: Titan's letter to its English lawyers and the telexes which Italcementi and Calcestruzzi sent to Titan. 138. In reality, those meetings serve not to prove that it was involved in the agreement but to show that it was connected with the European Task Force. It should be taken into account that Article 4(3)(a) of the Decision describes as an infringement the cooperation in concerted practices designed to withdraw Calcestruzzi ... as a customer from the Greek producers, and from Titan in particular. Some undertakings were involved through the European Task Force, while others, like Cementir (and Italcementi and Unicem too) did so directly by entering into negotiations with Ferruzzi so that its subsidiary Calcestruzzi would suspend implementation of the agreement concluded with Titan. 139. The appellant itself recognises the facts by implication in its appeal and admits having attempted to attract Calcestruzzi as a customer, but in its own interest and not within the framework of the implementation or the inception of a plan conceived within the European Task Force. However, the fact that it acted in its own interest does not preclude the existence of a cartel. 140. Therefore, first the Commission and then the Court of First Instance were able to infer that Cementir and the other Italian producers entered into negotiations with Feruzzi so that Calcestruzzi would not implement the imports agreed with Titan and to presume (98) that such agreements took place within an agreement on a European scale to withdraw that undertaking, which at the time was the major Italian manufacturer of ready-mix concrete, as a customer of the Greek cement manufacturers. (2) The agreements with Calcestruzzi (Article 4(3)(b) of the Decision) (second head) (a) Arguments of the parties 141. Cementir submits that the evidence of its participation in that infringement is irrelevant, for the simple reason that it did not attend the meetings of the European producers at which its perpetration was discussed. 142. As regards the meeting held in Luxembourg on 27 May 1987 between Titan, Cementir and the other Italian cement producers, paragraph 3359 of the judgment under appeal distorted its arguments, since the appellant attended with the sole aim of maintaining its own agreement with Calcestruzzi and not of implementing the agreement between Calcestruzzi and Titan (sic). Furthermore, paragraph 2780 recognised that there is no connection whatsoever between its involvement in the Luxembourg meeting and the contacts between European producers which were taking place at the same time within the European Task Force. 143. Cementir further submits that the Court of First Instance made a manifest error of qualification in connecting its accession to the agreements with Calcestruzzi with the anti-competitive agreements which may have been entered into by other producers within the European Task Force. 144. The Commission contends that Cementir is reproducing what it already stated, without disproving the assessments in paragraphs 3353 to 3357 of the contested judgment on the relation between the contracts signed by the Italian producers in April 1987 and the Cembureau agreement. (b) Cementir and the contracts with Calcestruzzi 145. The appellant's complaint in respect of the contracts signed with Calcestruzzi is essentially the same as the complaint it puts forward in respect of the infringement described at Article 4(3)(a) of the Decision and it must, therefore, meet the same fate. The appellant does not deny the existence of the contracts signed with Calcestruzzi on 3 and 15 April 1987 or that they were the result or the object of the agreement between the three Italian producers and Ferruzzi, to which the telexes already mentioned in this Opinion refer. (99) In those circumstances, the assessments set out in paragraphs 3356, 3360, 3361, 3367, 3372, 3377 and similar paragraphs of the judgment under appeal cannot be classified as unfounded. 146. In particular, the interpretation which it gives of the meeting in Luxembourg does not distort Cementir's arguments or distort any of the evidence, because it can be inferred from the documents used by the Commission that the meeting sought a solution to the inconvenience caused by the suspension of deliveries of cement by Titan as a consequence of the agreement reached with Italcementi, Unicem and Cementir. (100) 147. It is irrelevant that Cementir did not form part of the European Task Force or that it did not attend the Head Delegates' meeting held in Luxembourg on 27 May 1987 on the occasion of the Cembureau general assembly. (101) The infringement found at Article 4(3)(b) of the Decision is not an agreement of European dimension, since only the three Italian manufacturers took part in it. In other words, the contracts and agreements signed on 3 and 15 April 1987 represent the implementation of the agreement between Cementir, Italcementi and Unicem, the purpose of which was to avoid a threat of the import of 1.5 million tonnes of Greek cement by Calcestruzzi, (102) an account of which was given at the meetings of the European Task Force on 11 February and 15 March 1987. (103) In that context, the appellant's arguments lose all their force, because the agreement described in that provision was not adopted within that group. 148. The former considerations have the effect that the same applies to the complaint concerning the failure to adduce evidence that any connection existed between the infringement found at Article 4(3)(b) of the Decision and the European Task Force. The Commission and the Court of First Instance had before them sufficient evidence to detect that connection, because at both meetings the agreement between the Italian manufacturers and Calcestruzzi was communicated, which made it possible to avoid a threat of exports which would have been catastrophic for prices, (104) and to infer that the Italian agreement was liable to affect trade between Member States (105) since it sought to prevent Calcestruzzi from importing Greek cement. (106) D - In the classification of the single, continuous agreement (fifth plea in law) (1) Arguments of the parties (a) A single, continuous agreement relating to the European Task Force (first head) 149. The appellant maintains that paragraph 3760 of the judgment under appeal is incorrect, since it has no legal basis and is contradictory, as it assumes that the contracts signed with Calcestruzzi interfered with competition and presumes that Cementir was aware that they formed part of a global plan. It states two reasons for its position: 1. it is contradictory to consider that Cementir did not participate in the infringements relating to the European Task Force and to Interciment (Article 4(1) and (2) of the Decision) and, immediately afterwards, to hold it responsible for a single, continuous agreement whose purpose was that cartel; 2. as Cementir had not been represented in the European Task Force or in Interciment by other Italian undertakings, it cannot be presumed that it necessarily found out through third parties about the anti-competitive plans. The contested judgment accuses the appellant of being aware of the connection between the agreements and an alleged single, continuous agreement, without offering any explanation, which in the appellant's view is incompatible with the right to be presumed innocent. 150. The Commission contends that the alleged contradiction is fictitious. Paragraph 3761 of the contested judgment stated that the fact that Cementir did not participate in all the constituent elements of the infringement could not exonerate it of responsibility, according to the relevant case-law. Although the Commission did not prove that the appellant participated in the setting-up of the European Task Force, it showed that it was involved in subsequent acts, such as the concerted practices and the agreements with Calcestruzzi, both of which were manifestations of the Cembureau agreement. 151. Furthermore, the Commission asks whether the Court of First Instance could have interpreted otherwise the telex which Calcestruzzi sent to Titan on 13 May 1987, in which it referred to a meeting held in Luxembourg to resolve the problems with Titan, following the signature of the agreement with Calcestruzzi. (b) A single, continuous agreement relating to the Cembureau principle (second head) 152. Cementir denies that the fact that it attended one or two meetings of the Cembureau Head Delegates proves that it was involved in a single, continuous agreement and disagrees in particular with paragraph 4127 of the contested judgment, where it is stated that owing to the simple nature of the Cembureau principle (everyone stays at home) it was not necessary to hold regular meetings; that test is unfounded and summary, since an agreement such as the one in question would not exist without being administered with a certain degree of continuity and regularity. Even more, when the infringements relating to the European Cement Export Committee and the European Export Policy Committee (Articles 5 and 6 of the Decision) and, in so far as they concern the appellant, those relating to the European Task Force and Interciment had been annulled, the Court of First Instance should have declared that the Commission's theory concerning a single plan, made up of a series of implementing measures, was demolished. 153. The appellant admits having attended the meeting of 14 January 1983 and the one held on 7 November 1984, at which intra-Community trade in cement was not discussed, but it maintains that its presence does not mean continuous adherence to the Cembureau agreement. More specifically, it states: 1. that there is no connection between those meetings and the agreements with Calcestruzzi, which were signed more than four years after the first meeting in 1983; 2. that the agreements are not connected with the meetings of the European Task Force; and 3. that the periodic exchanges of price information were extraneous to the agreement allegedly reached at the meeting of 14 January 1983. 154. Last, the appellant is unable to understand why paragraph 4064 of the contested judgment states that it must have been aware that its conduct formed part of a common anti-competitive plan which extended over 10 years. 155. The Commission complains that Cementir is reiterating its allegations and relying on evidence adduced at first instance. It claims that the plea should be rejected as inadmissible. 156. Although it was not proved that the appellant participated in setting up the European Task Force and in Interciment, it was proved that it was involved in the Cembureau agreement and, in particular, in some of its unlawful manifestations. Although certain aspects of the Decision were annulled, its structure was largely untouched, so that the fundamental part of the administrative finding was left intact: the existence of a global agreement on non-transhipment to home markets, applied by multiple implementing measures. (2) The concept of a single, continuous agreement. 157. Article 85 of the Treaty prohibits agreements between undertakings and decisions by associations of undertakings and, generally, concerted practices, including conduct implementing those agreements or decisions, when they may affect intra-Community trade and have an anti-competitive object or effect. It follows that infringement of that article may result not only from an isolated act but also from a series of acts or from continuous conduct. (107) The decisive factor is the existence of a common subjective element and of the same unlawful design which links them. (108) 158. In principle, it is legitimate to classify as a single, continuous infringement the series of activities taking place within a system of periodical meetings, with the common objective of non-transhipment to cement markets, in the furtherance of which the persons concerned adopt, inter alia, measures to change price information to persuade and bring pressure to bear on importers which threaten stability on the markets 159. Against that background, it is irrelevant whether any act, taken in isolation, constitutes an autonomous infringement of Article 85 of the Treaty; (109) it is also irrelevant that an undertaking has not cooperated in all the ingredients of the collusive practice, has played a minor role (110) or has not applied it. (111) 160. Therefore, if a company participates in an infringement of this type by engaging in conduct of its own which is intended to bring about the common goal, it is responsible, during the period of its involvement, for the conduct of other economic operators within the framework of that infringement. That is the case where it is established that the undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk. (112) (3) The single, continuous agreement relating to the European Task Force and its implementing measures 161. Cementir does not dispute the Court of First Instance's classification of the infringements which the Commission describes in the different parts of Article 4 of the Decision as a single, continuous agreement, but it denies having participated in them. 162. In the light of the case-law of the Court of Justice which I have just described, there is nothing contradictory about the fact that an undertaking which was not involved in setting up an agreement, but was involved in certain of its implementing measures, should be responsible for the single, continuous anti-competitive agreement. 163. The decisive point is whether it has been shown that Cementir was aware or could reasonably have been aware of the unlawful agreements set up by its competitors, in which it was not involved, and also of the existence of a link between those agreements and the practices in which it took part. 164. On this last point, I refer to my considerations a few lines above, when I analysed the second head of the fourth plea in law, in particular point 148. 165. As regards the appellant's possible awareness of the setting-up of the European Task Force, paragraph 3760 of the contested judgment does not appear to be illogical or unfounded. Unicem and Italcementi were fully aware that the pressure on Calcestruzzi and the agreement which derived from the signing of contracts of supply with that undertaking formed part of the wider strategy outlined within the European Task Force (aimed at eliminating imports from Western Europe), for which reason, at the meetings of the European Task Force held on 11 February and 15 March 1987, an account was given of the measures to protect the Italian market. Therefore, it is consistent to infer that Cementir, which was acting in agreement with those other two Italian producers first to bring pressure on, and then to collude with, Calcestruzzi, was aware of the existence of that wider agreement, in the setting-up of which it was not involved, and that the pressure and the agreements with Calcestruzzi served the same object. The proof of presumptions, on whose legitimacy I have expressed my views in this Opinion, supports that finding. 166. There is a further element which supports that inference. The meeting held in Luxembourg on 24 May 1987 between the three Italian cement manufacturers and the Greek producer Titan was parallel to the meetings held there on 25 to 28 of that month by the Cembureau Head Delegates, at which the future of the European Task Force was discussed. (4) The single, continuous Cembureau agreement 167. Paragraphs 4025 to 4417 of the contested judgment set out the reasons why the Cembureau principle was qualified as a single, continuous agreement and examine the participation of each of the undertakings. Cementir focuses its criticisms on three specific aspects: 1. the fact that it attended two meetings is not sufficient for its conduct to be regarded as having formed part of a single, continuous agreement, especially if account is taken of the fact that there is no connection between the agreements with Calcestruzzi and those meetings and the meetings of the European Task Force, and that the periodic exchanges of price information were extraneous to their conduct; 2. when Articles 5 and 6 of the Decision had been annulled, the concept of a single, continuous agreement lost its foundation and was demolished; 3. it is an unacceptable presumption to claim that it must have been aware that its conduct formed part of a common anti-competitive plan. 168. On the basis of the case-law cited above, it is possible to declare that an undertaking participated in a single, continuous anti-competitive agreement irrespective of the number of occasions, the significance and the degree to which it was involved. The decisive factor lies elsewhere, in the knowledge or foreseeability of the unlawful activities of the other participants and in the awareness that it is contributing by its involvement to a common anti-competitive purpose. It follows that the fact that Cementir only attended the meetings of 14 January 1983 and 9 November 1984 is irrelevant. It should be noted, moreover, that it also participated in the exchanges of price information and in the measures adopted to protect the Italian cement market. (113) 169. In order to deny the consequences of that fact, the appellant seeks to dissociate those measures from the meetings at which the Cembureau principle was ratified, which it attended. Cementir is thus reopening a discussion which has already been answered in this Opinion and which, as I have stated, is inadmissible and unfounded. What is certain is that the Court of First Instance set out both the reasons why the exchanges of price information sought to facilitate the implementation of the Cembureau agreement (114) and the reasons why the pressure brought to bear on Calcestruzzi and the agreement relating to the contracts signed with Calcestruzzi were connected with the European Task Force and with the Cembureau principle, with whose objectives they tallied perfectly. (115) 170. A second aspect of Cementir's complaint proceeds from a premiss which is mistaken in part. The Court of First Instance did not annul Article 6 of the Decision in its entirety, (116) but only in regard to the undertakings referred to at paragraph 4015 of the judgment. That is to say, the concerted practice within the framework of the European Export Policy Committee existed and, because it was intended to prevent incursions by competitors on respective national markets in the Community, (117) an aspect which Cementir does not dispute, is a further reason to classify the Cembureau agreement as a single, continuous practice. 171. As regards the criticism relating to paragraph 4064 of the contested judgment, I refer to what I said at point 165 of this Opinion. If the appellant was present at the meetings and was involved in the practices described at point 168 above, there is nothing arbitrary in stating that it must have been aware that it was part of a global anti-competitive plan whose purpose was non-transhipment to home markets. In fact, (a) if it attended the meeting at which the Cembureau principle was adopted; (b) if it then attended another meeting at which the principle was confirmed; (c) if it formed part of the system for circulating price information, placed at the service of the everyone stays at home rule; and (d) if, in order to protect the Italian domestic market, it was involved in the action and in the Calcestruzzi agreements to meet imports, especially imports from Greece, it is not implausible, incoherent or irrational to consider that Cementir was aware that it was participating in a general market-sharing agreement. 172. The fifth plea in law must therefore be rejected as well. 3. The fine (sixth plea in law) A - Arguments of the parties 173. Cementir devotes the last plea in law to the economic penalty imposed on it. It divides the complaint into six heads, two of which - the fourth and the sixth - were dismissed as manifestly unfounded in the order of 5 June 2002. 174. The four remaining heads dispute the duration and the gravity of the infringements, the time-barring of the infringement described in Article 2(1) of the Decision and the amount of the fine fixed by the Court of First Instance. (1) The duration of the infringements (first head) 175. The appellant submits that, if the Court of Justice considers the grounds relating to the lawfulness of the exchanges of price information, and also those referring to the pressure brought to bear on and the agreements with Calcestruzzi, the duration of the infringement should be reduced, in so far as it concerns the appellant, to a single day, with the consequent effect on its gravity. In particular, the duration of the infringement cannot be connected to the term of the agreement with Calcestruzzi, since the anti-competitive element lies solely in the collusion to put an end to relations between Calcestruzzi and Titan. 176. The Commission contends that this complaint constitutes an implied request by Cementir for a reconsideration of the facts and that it is therefore inadmissible. Furthermore, at paragraphs 3283 to 3290 and 3133 to 3166 of the contested judgment, the Court of First Instance accepts the argument in the Decision concerning the duration of the infringement and emphasises that the contracts signed with Calcestruzzi, which were in force until 3 April 1992, represented a manifestation of the Cembureau agreement. (2) The gravity of the infringement (second head) 177. Cementir claims that the part of the judgment in which, subscribing to the Commission's argument, the Court of First Instance connected the penalty with the infringement described in Article 1 of the Decision and found that it was irrelevant whether the accused undertakings had participated in one or in a number of infringements is incoherent and illegal. 178. In support of that contention, the appellant relies on the following reasons: 1. it is contrary to the principle of proportionality that the annulment of a large number of infringements has no effect on the assessment of the overall gravity of the impugned conduct, since it is paradoxical that, although four of the infringements imputed to it were annulled, Cementir was still subject to the same percentage of penalty; 2. it is also contrary to the Community case-law which makes the gravity of the infringement conditional upon the extent to which the undertakings have taken part in the single, continuous agreement; 3. it also results in unequal and unjustified treatment, since undertakings which have taken part in a different number of infringements and which have adhered in different ways to the global agreement receive the same penalty. 179. The explanation concerning the connection of the penalty to the infringement of Article 1 of the Decision was not provided by the Commission until the hearings at first instance, which, according to Cementir, had a decisive impact on the lawfulness of the Decision in the part relating to the fixing of the fine. 180. In the Commission's view, the fine was imposed on each undertaking for its participation in the Cembureau agreement and the contested judgment adopts an approach which is perfectly consistent with the case-law on fines. (3) Adjustment of the amount of the fine (third head) 181. The turnover which Cementir communicated to the Commission at the material time was higher than the actual figure, since it included amounts received by way of transport costs, the amounts in respect of bags and other services unconnected to the transport of cement, so that paragraphs 5030 and 5032 of the contested judgment, by holding that such costs form an integral part of the sale of cement, is incorrectly reasoned and contradicts the principles of proportionality and equal treatment. 182. The Commission contends that Cementir's complaint concerns the facts and is therefore inadmissible. (4) The infringement found at Article 2(1) of the Decision is time-barred (fifth head) 183. The Court of First Instance emphasised that Cementir collaborated in the periodic exchanges of price information for one day. However, it should have made clear that the autonomous infringement referred to at Article 2(1) of the Decision was time-barred and taken that fact into account in assessing the general gravity of the appellant's conduct. 184. The Commission reiterates that this aspect of the plea is inadmissible for the same reasons as the third head and emphasises that at paragraphs 4801 and 4802 of the contested judgment it is clearly stated that, under Regulation No 2988/74, (118) the Commission's power to impose penalties had not become time-barred when the Decision was adopted, since the infringement was committed between 14 January 1983 and 3 April 1992. B - The criteria used by the Commission in imposing the fines 185. For the purpose of analysing these complaints, it is appropriate to refer to the structure of the body of the Decision and of the criteria used in setting the fines. 186. In the Decision, two distinct markets are envisaged, the market in grey cement and the market in white cement. As regards the first of these, it imputes the adoption of the Cembureau agreement, whereby agreement was reached on non-transhipment to home markets and the regulation of cement transfers from one country to another. Articles 2 to 6 cover bilateral or multilateral conduct designed to implement or facilitate the implementation of that single and continuous agreement or to remove potential obstacles to its effectiveness, such as, for example, the so-called Greek threat. Article 7 refers to anti-competitive conduct on the market in white cement. 187. The Commission imposed separate penalties for infringements relating to each market. (119) 188. As regards the market in grey cement, the only market in which Cementir was accused of anti-competitive conduct, the Commission decided not to penalise each individual type of conduct but to impose an overall fine on each undertaking, since the Cembureau agreement and all the measures implementing it were interconnected. (120) That approach is legitimate and is based on the Commission's power to adopt a single decision covering several infringements. (121) 189. The Commission further considered that all the undertakings and associations to which the Decision was addressed acceded to the Cembureau agreement and it set out the evidence which determined the participation of each of them. Thus, Cementir acceded, as a member of Cembureau, to the agreement or principle of not transhipping to home markets at the time when it was discussed and approved and cooperated in the adoption of the measures and arrangements agreed to supplement it and/or assist in its application. (122) 190. However, within this general approach, [the Commission took] account of the role played by each undertaking in the conclusion of the ... agreement, or in the measures and arrangements agreed to supplement and implement it. It also considered the duration of both. (123) 191. In accordance with the foregoing, the Commission identified two groups of undertakings and associations: first, those involved in the Cembureau agreement and, second, the other undertakings, which were less involved and whose responsibility was therefore lesser. (124) 192. Within the former category, the Commission distinguished three subgroups: (1) that consisting of the undertakings and associations which, as members of Cembureau, had participated directly in the adoption of the agreement on non-transhipment to home markets and in measures directly protecting those markets (the Commission included Cementir in this group); (2) a second subgroup composed of the companies which, through their most senior staff, had performed the function of Head Delegates within Cembureau either at the time when the agreement was concluded or during the period of its implementation; and (3) the final subgroup, made up of the companies which had taken part in measures implementing the agreement and designed to protect home markets. (125) 193. In the second category, the Commission also distinguished between three levels of responsibility: (1) the undertakings which had participated only in the measures implementing the Cembureau agreement that were designed to channel production surpluses to non-member countries; (2) those which, although they had assisted in directly protecting home markets, had tried to avoid implementing the Cembureau principle; and (3) Ciments luxembourgeois SA, which, although a direct member of Cembureau and although having participated in the Head Delegates' meetings at which the Cembureau agreement or principle was adopted, had not been associated with any implementing measure. (126) 194. The Commission fined the undertakings and associations in the first category 4% of their 1992 turnover in the market in grey cement. Those in the second category were fined 2.8% of their 1992 turnover in the same market. (127) 195. The Court of First Instance upheld Cementir's application in part because, in calculating the fine which it imposed on it, the Commission found that it had been in the Cembureau cartel for 122 months, whereas it was only shown to have participated for 110.5 months (128) and, for that reason, it reduced the amount of the fine in proportion. (129) 196. The appellant claims that the Court of First Instance's approach constitutes a breach of the principles of equal treatment and proportionality in the imposition of the fines. 197. Couched in those terms, this plea is inadmissible, since it reiterates the arguments set out in the application, to which the Court of First Instance responded at paragraphs 4949 to 4969 of the contested judgment. Cementir says nothing new in this plea, nothing which was not discussed and determined in the judicial proceedings. It exploits the fact that the Court of First Instance uses the same criterion in setting the fines as the Commission did to reproduce a discussion which in reality is a criticism not of the judgment under appeal but of the administrative decision imposing the fines. C - The principles of proportionality and equal treatment 198. This plea in law is also unfounded. 199. The penalty has a twofold purpose: it is meant to be punitive and at the same time deterrent. It is intended to penalise conduct and to discourage those responsible, and also any other prospective offenders, from engaging in anti-competitive conduct. It must therefore be suitable for those purposes, while striking a proper balance so that the fine punishes the conduct which it penalises and at the same time is exemplary. 200. From the first aspect, the retributive aspect, as a corollary of the principle that the punishment must be applied solely to the offender, the penalty must be proportionate to the gravity of the infringement and to the further circumstances, both subjective and objective, which are present in each case. For that reason, the final sentence of Article 15(2) of Regulation No 17 provides that, in fixing the amount of the fine, regard is to be had both to the gravity and also, if appropriate, to the duration of the infringement. 201. The Court of Justice has held that the gravity of infringements has to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, and has further stated that no binding or exhaustive list of criteria has been drawn up. (130) 202. To my mind, there are three criteria central to this assessment: the nature of the infringement, the impact on competition and the geographical scope of the market concerned, and each of these must be considered from an objective aspect, that of the infringement itself, and from a subjective aspect, that of the undertaking responsible. (131) 203. It is thus necessary to assess the content of the anti-competitive conduct, the extent of the market affected and, more specifically, the harm suffered by the economy; and for that purpose data such as the duration of the prohibited practice, the material nature of the market in question and the number and intensity of the implementing measures adopted are relevant. 204. At a subjective level, that of the undertakings responsible, the relevant circumstances include the relative size or market quota in the economic sector concerned and also whether the anti-competitive conduct was repeated. 205. The requirement that the penalty be proportionate to the gravity of the infringement has the consequence that when an infringement has been committed by a number of persons, (132) it is necessary to examine, using the abovementioned guidelines, the relative gravity of the participation of each. (133) That is a requirement of the principle of equal treatment, which demands that the fine be the same for all undertakings in the same situation and prevents those in a different situation from being punished with a similar penalty. 206. The Court of First Instance adopted that approach in approving and applying the criteria used by the Commission in setting the fines. Far from corresponding to an arbitrary classification of the companies and associations responsible, those criteria are the result of a detailed analysis of the participation and conduct of each of them. That is clear from paragraphs 3, 5 and 9 of recital 65 of the Decision, which, it must not be forgotten, contains an extensive first part, in which the facts are set out and the roles played by the various entities and associations concerned are described. 207. All the practices, which of necessity were not the same in each case, pursued the same anti-competitive objective, and for that reason, for the purpose of imposing penalties, they could be grouped as regards gravity in one or more categories according to the impact on the market and the effect on free competition. 208. There is nothing unlawful in that approach, since, as I have already said, the gravity of an infringement may be assessed regard being had to the harm which the conduct has caused to the economy. As the Court of First Instance stated at paragraph 4966 of the contested judgment, each of the undertakings which participated in the Cembureau agreement sought to ensure non-transhipment to home markets by means of the number of measures deemed necessary in the light, in particular, of its commercial interests and the geographical situation of its natural market. The fact of having taken part, in the light of those factors, in fewer unlawful measures does not consequently reflect a lesser degree of adhesion to the Cembureau agreement and, therefore, a lesser responsibility in the infringement. The position was the same as regards the damage to competition. 209. For the same reason, the fact that the Court of First Instance annulled some of the provisions of the Decision on the ground that Cementir's contribution to the practices described had not been proven does not necessarily entail a reduction in the fine imposed, since the decisive factor was its continuous adherence to the Cembureau principle through its involvement in one or more of the implementing measures designed to afford direct protection to home markets. (134) 210. Thus, Cementir's suggestion that other undertakings which were also included in the group bearing greater responsibility made a more intensive contribution to the cartel is misplaced, even if its involvement were regarded not as intentional but as negligent, because, for the purposes of competition, infringements committed carelessly are no less serious than those committed deliberately. The Court of First Instance was not required to ascertain, in order to determine the gravity of the infringement, whether it had been committed on purpose or negligently. (135) In competition matters, the degree of culpability determines the penalty but is not a criterion for the setting of the fine. (136) 211. Nor is there a breach of the principle of equal treatment if the yardstick employed is the companies in the group bearing less responsibility. The reasons stated by the Commission, and approved by the Court of First Instance, (137) for distinguishing the two categories of undertakings satisfy an objective and reasonable criterion, that of the effect of the conduct on competition and, in particular, on the division and separation of home markets. Thus, the practices referred to in Articles 2, 3 and 4 of the Decision, in so far as they were aimed at the direct protection of those markets, were deemed most serious, while those described in Articles 5 and 6, which had less direct effects, (138) were classified as less serious. 212. Consequently, if the criteria used by the Commission are consistent with the principles governing the imposition of fines, the reduction which the Court of First Instance made by following the same rules also satisfied them. D - The penalty is adequately reasoned 213. The Commission devoted recital 65 of the Decision to a very full explanation of the criteria relating to penalties which it was to apply in the operative part of its decision. For their part, paragraphs 4722 to 5057 of the contested judgment, which answer the applicants' complaints, analyse various aspects of the penalties imposed. 214. It is sufficient to read the Decision and the judgment to find that Cementir's complaint relating to the absence of reasoning for the decision to penalise only involvement in the Cembureau agreement, irrespective of the number of implementing measures in which each undertaking had been involved, is unfounded. A careful reading of the description which, on the basis of recital 65 of the Decision, I gave a few lines above on the criteria used by the Commission when imposing penalties will clearly reveal that the reasons that Cementir claims are absent are in the Decision. 215. In reality, that aspect of the plea is inadmissible, since it reproduces an allegation which received a full answer at paragraph 4722 et seq. of the judgment at first instance. E - The duration of the infringements and, in particular, of the infringement described at Article 4(3)(b) of the Decision 216. One part of the first head of this plea takes as its starting point a hypothetical situation which did not occur: acceptance of the pleas relating to the exchanges of price information, to the pressure and to the contracts with Calcestruzzi. As I propose that those complaints should be rejected, the duration of the infringement remains, in principle, the same. 217. The second part of this first head of the fifth plea in law concerns the infringement referred to at Article 4(3)(b) of the Decision, which relates to the agreement reached between Cementir, Italcementi and Unicem whereby Calcestruzzi would cease importing cement from Greece, in connection with which the contracts with Calcestruzzi were signed, which were in force until 3 April 1992. The appellant maintains that it is contradictory that applicability of that agreement should coexist with the validity of those contracts. 218. I have already stated in my Opinion of today's date in Case C-217/00 P Buzzi Unicem v Commission (139) that Article 4(3)(b) of the Decision refers to two practices. One, which has external significance, sought to prevent imports of Greek cement by Calcestruzzi: this is the agreement between the three Italian producers. The other, which is of merely national significance, consists of the agreements and contracts signed by the three cement producers and Calcestruzzi itself. In the first, those responsible were Unicem, Italcementi and Cementir, while in the second those responsible include Calcestruzzi. The agreement between the three cement manufacturers to bring pressure to bear on whoever subsequently signed the contracts of supply is in itself an agreement which per se would attract a penalty. (140) Therefore, it is not contradictory or illogical that the duration of the cartel described at Article 4(3)(b) of the Decision should be fixed by reference to the time during which the agreements and the contracts which constituted its external expression were in force, in the same way as the length of time during which the Cembureau agreement adopted at the Head Delegates' meeting of 14 January 1983 was found to have existed was the period during which implementing measures were adopted. F - The time-barring of the infringement consisting in the specific exchanges of price information 219. By this complaint, Cementir is reproducing the arguments put forward at first instance, without criticising the answer given at paragraphs 4801 and 4802 of the contested judgment. It follows that its arguments are inadmissible. 220. In any event, they are also unfounded. 221. The answer to this plea in law must be based on the facts established in the contested judgment which have not been invalidated following an appropriate channel on appeal. Cementir attended the Head Delegates' meetings of 14 January 1983 and 7 November 1984. It also participated in the exchanges of price information at the first of those meetings and also in the periodic exchanges between 1 January 1984 and 31 December 1988. It took part in the concerted practices intended to withdraw Calcestruzzi as a customer of the Greek producers, and Titan in particular, between 9 September 1986 and 15 March 1987. Last, it joined with Unicem and Italcementi in order to prevent Calcestruzzi from importing cement from Greece, to which end they signed contracts and agreements of supply with Calcestruzzi on 3 and 15 April 1987; that practice continued until 3 April 1992. (141) 222. Therefore, even supposing that the infringement described at Article 2(1) of the Decision were time-barred, that would not in any way affect the outcome, since Cementir continued to form part of the agreement as a direct member of Cembureau, having collaborated in certain of the implementing measures. It would therefore be among the group of undertakings fined 4% of their turnover. 223. Furthermore, the appellant is forgetting that the infringement is continuous and, as such, the point at which time begins to run is the day on which the single conduct came to an end, (142) which, in the present case, was 3 April 1992. As the Statement of Objections was sent on 25 November 1991, (143) the question of a time-bar does not arise, since on that date the infringement was still producing its effects. G - The adjustment of the turnover 224. Like the previous head, this head of the sixth plea is inadmissible, since Cementir is putting forward, without more, the same reasons as at first instance, to which an answer was given at paragraphs 5030 to 5032 of the contested judgment. 225. Furthermore, Cementir's approach is in my view incorrect. 226. The turnover achieved as a reference for the fixing of fines is used to assess the size and economic strength of the undertakings, (144) in order to ensure that the penalty is proportionate to the undertaking's size on the product market in respect of which the infringement was committed. Such is the import of Article 15(2) of Regulation No 17. (145) It is necessary, therefore, to have regard to the influence which the undertaking concerned has in the market owing to its size and its economic power. (146) 227. Cementir's complaint concerning whether the cost of transporting the cement or the cost of the bags in which it is supplied form an integral part of the sale is to no avail. The decisive factor is that they form part of the movements and of the traffic of the company and must therefore be taken into consideration for the purpose of gauging the size and capacity of the undertaking. 228. Last, the complaint alleging inequality which the appellant puts forward in this point is merely rhetorical. Anyone who complains of discriminatory treatment must be able to prove it by providing a factor for comparison. Cementir has not done so either at first instance or on appeal. 229. In the light of what I have said, the four heads of the sixth plea in law which were not dismissed in the order of 5 June 2002 must be rejected. 230. Since all the pleas in law declared admissible must be rejected, the appeal must be dismissed in its entirety. V - Costs 231. As the Commission has applied for costs, Cementir must be ordered to pay the costs of this appeal, pursuant to the first paragraph of Article 122 read in conjunction with the first subparagraph of Article 69(2) of the Rules of Procedure of the Court of Justice. VI - Conclusion 232. In accordance with the foregoing reflections, I propose that the Court of Justice should: (1) reject in their entirety the pleas in law put forward by Cementir - Cementerie del Tirreno SpA that were not dismissed in the order of 5 June 2002; (2) uphold the judgment of 15 March 2000 of the Fourth Chamber, Extended Composition, of the Court of First Instance in Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission in so far as it refers to the appellant; (3) order the appellant to pay the costs of this appeal. 1: - Original language: Spanish. 2: - Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 [2000] ECR II-491. 3: - OJ, English Special Edition 1959-1962, p. 87. 4: - Cases IV/33.126 and 33.322 - Cement. 5: - Paragraphs 2 and 3 of the contested judgment. 6: - Paragraphs 3, 9 and 12 of the judgment. 7: - Paragraphs 4 to 6 of the judgment. 8: - OJ 1994 L 343, p. 1. 9: - Paragraph 22 of the judgment. 10: - See paragraph 163, in conjunction with paragraphs 5 and 95, of the contested judgment. 11: - See paragraphs 164 to 168 of the contested judgment. 12: - Ciments luxembourgeois SA. 13: - Paragraphs 169 and 170 of the judgment. 14: - Codified version, published in OJ 2001 C 34, p. 1. 15: - Case T-30/91 [1995] ECR II-1775. 16: - Case T-36/91 [1995] ECR II-1847. 17: - Case C-51/92 P [1999] ECR I-4235. 18: - Case 30/78 [1980] ECR 2229. 19: - With the exception of documents containing business secrets or other confidential information and Commission internal documents. 20: - See paragraph 241 of the judgment. 21: - On the rights of defence in proceedings in competition matters, see K. Lenaerts and I. Maselis, Le justiciable face à la Commission européenne dans les procédures de constatation d'infraction aux articles 81 and 82 EC, in Journal des tribunaux, No 5973 (2000), pp. 496 to 504. Also of interest is the study by L. Goossens, Concurrence et droits de la défense: la phase administrative devant la Commission, in Journal des tribunaux, Droit européen, No 52 (1998), pp. 169 to 175, and No 53 (1998), pp. 200 to 204. Also of interest, in spite of its relative age, is the work by O. Due, former President of the Court of Justice, Le respect des droits de la défense dans le droit administratif communautaire, in Cahiers de droit européen, Nos 1 and 2 (1987), pp. 383 to 396. 22: - OJ 1998 L 354, p. 18. This regulation replaced Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (OJ, English Special Edition 1963-64, p. 47), in force on the dates on which the administrative procedure was conducted in the present case. 23: - See in particular, and among the most recent decisions, Hercules Chemicals v Commission, cited above, paragraph 75 et seq. 24: - The judgment now under appeal is itself an example (see paragraphs 142 to 144 and 240). 25: - See the Engel and others v. Netherlands judgment of 8 June 1976 (Series A No 22) for military disciplinary proceedings and the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981 (Series A No 43) for disciplinary proceedings within a medical practitioners' professional body. 26: - OJ 2000 C 364, p. 1. 27: - See the second paragraph of Article 47 and Article 48(2). 28: - Article 41(2), first and second indents. 29: - As are the right to be heard, the right to be informed of the charge, the right to use the means of evidence relevant to the defence or, as the case may be, the right to legal assistance. 30: - See the Opinion of Advocate General Mischo of 25 October 2001 in Cases C-244/99 P and C-251/99 P (the PVC cases), points 331 and 125 respectively, in which judgment was given on 15 October 2002 (Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P LVM and Others v Commission [2002] ECR I-8375, PVC II). 31: - As the Court of Justice held in Distillers Company v Commission, on which the appellant relies. At paragraph 26 of that judgment, the Court of Justice held that it is necessary to consider the alleged procedural irregularities only if in the absence of those irregularities the administrative proceedings could have led to a different result. 32: - Like the historian, the judge reconstructs the past and, in doing so, must sift through evidence and testimony in order to reproduce the facts as and how they occurred. Neither the judge nor the historian can place himself in the position of the subjects of the investigation: they must step outside it. On the relations between law and history, see C. Ginzburg, The Judge and the Historian (Marginal notes on the Sofri trial), Verso, London, 1999. 33: - Paragraphs 78 and 79. 34: - This is the test recently followed by the Court of Justice in PVC II, cited above, paragraph 315 et seq., in particular paragraph 325. 35: - As was the case with Cedest SA (Case T-38/95): see paragraphs 2211 and 2286 of the contested judgment. 36: - Paragraphs 98 and 108 respectively. 37: - Case T-37/91 [1995] ECR II-1901. 38: - See paragraphs 66 and 70. 39: - See paragraph 61 of Solvay v Commission and paragraph 71 of T-36/91 ICI v Commission. 40: - See paragraphs 98 and 108, respectively, of the judgments. 41: - See paragraphs 263 and 264 of the contested judgment. 42: - That indicated at recitals 18, 19 and 45 of the Decision. 43: - Paragraph 264 of the contested judgment. 44: - Paragraph 262 of the judgment of the Court of First Instance. 45: - See paragraph 263 of the judgment under appeal. 46: - See paragraph 1250 of the judgment. 47: - See paragraph 247 of the judgment under appeal. 48: - Hearing of 14 October 1998 in Case T-25/95 CBR v Commission. 49: - Hearing of 14 October 1998 in Case T-60/95 Irish Cement v Commission. 50: - Documents 33.126/11630 to 11633. 51: - Documents 33.322/308 to 312. 52: - Documents 33.126/2023 to 2049. 53: - Documents 33.126/2105 to 2113. 54: - See Articles 61 and 62, respectively, of the Rules of Procedure. 55: - See, among others, the order in Case C-17/98 Emesa Sugar [2000] ECR I-665, paragraph 18, and Joined Cases C-270/97 and C-271/97 Deutsche Post [2000] ECR I-929, paragraph 30. 56: - See footnote 62 to my Opinion in Case C-466/00 Kaba [2003] ECR I-2219. 57: - Point 93. 58: - Those indicated in recitals 18, 19 and 45 of the Decision. In the judgment, see paragraph 1122 et seq. (in particular, paragraphs 1130, 1131 and 1132). 59: - See paragraphs 973 and 1131 of the judgment. 60: - Documents 33.126/19878 to 19880. 61: - Documents 33.126/2945 to 2951, 2934, 2935, 2954 to 2966 and 3065 to 3068. 62: - Documents 33.126/19369 to 19377, 18387, 19389, 19401, 19410, 19412, 19433, 19781, 19889, 20001, 20124 to 20137, 20140 to 20156, 20275 to 20282 and 20294. 63: - See recital 47, paragraph 14, of the Decision. 64: - Case C-199/92 P [1999] ECR I-4287. 65: - Document 33.126/11559. 66: - Documents 33.126/11332 to 11334 and 11335 to 11337. 67: - According to this theory, the memoranda referred to dumped imports from Eastern Europe and Spain (which at the time had not been incorporated into the Community). 68: - Documents 33.126/19875 to 19877. 69: - See point 27 of my Opinion in Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281 and the judgments cited at footnote 17 to that Opinion, and also paragraph 19 of the judgment in Ismeri Europa v Court of Auditors. Among the more recent dicta of the Court of Justice, see Joined Cases C-280/99 P to C-282/99 P Moccia Irme and Others v Commission [2001] ECR I-4717, paragraph 78. 70: - That described at recitals 18, 19 and 45 of the Decision. In the judgment, see paragraph 861 et seq., in particular paragraphs 875 to 901, for the Blue Circle internal memoranda; 902 to 913, for the statement of Mr Kalogeropoulos; 930 to 941, which refer to the letter convening the Head Delegates' meeting of 14 January 1983; 971 to 976 concerning the absence of any minutes of that meeting; and 1028 to 1046 concerning the meeting of 7 November 1984, at which the Cembureau agreement was confirmed. 71: - See recital 45, paragraph 9, of the Decision and paragraphs 1003, 1046, 1086 and 1095 of the judgment. 72: - See paragraphs 1343 to 1345, 1352, 1353, 1376, 1391, 1400 and 1401 of the contested judgment. 73: - See Case C-49/92 P Commission v Anic [1999] ECR I-4125, paragraph 96; Hüls v Commission, cited above, paragraph 155; and Case C-235/92 P Montecatini v Commission [1999] ECR I-4539, paragraph 181. 74: - See paragraph 959 of the judgment at first instance. 75: - See paragraph 962 of the judgment. 76: - See points 126 and 127 of the Opinion. 77: - See paragraphs 903 and 910 of the contested judgment. 78: - See paragraphs 1302, 1345 and 1352 of the contested judgment. 79: - Paragraph 1049. 80: - See paragraph 1470 of the contested judgment. 81: - See paragraph 1571 and the second indent of point 39 of the operative part of the judgment. 82: - See paragraph 1577 of the judgment. It must be borne in mind that Article 2(2)(a) of the Decision, on prices in Belgium, the Netherlands and Luxembourg, was annulled by the Court of First Instance. 83: - See paragraphs 1751 to 1755 and 4400 of the judgment. 84: - Recital 47, paragraph 13, of the Decision. 85: - The judgment incorrectly states that it was at the meeting of 14 January 1983, but in recital 16, paragraph 5, of the Decision the reference is to the meeting of 30 May 1983. 86: - See paragraph 1643 of the judgment. 87: - The exchanges in fact enabled an undertaking with an order from a potential customer in another member country to know the general level of prices in force at that time in that country and to align its export prices accordingly, so as to dissuade that customer from seeking cement outside his country, and so avoid competing with local producers (paragraph 1642 of the judgment). 88: - See paragraphs 1644 to 1646 of the judgment under appeal. 89: - See paragraph 1518 of the judgment, for specific exchanges, and paragraph 1644, for periodic exchanges. 90: - See point 134 of the Opinion which I delivered today in Case C-204/00 P Aalborg Portland v Commission. See also paragraphs 1634 and 1638 of the judgment. 91: - See paragraph 1473 of the judgment at first instance. 92: - Recital 16, paragraph 5, of the Decision refers to the meeting of 30 May 1983. 93: - See paragraphs 1644 and 1645 of the judgment at first instance. 94: - See paragraph 1475 of the judgment. 95: - Document 33.126/19196. 96: - See, for example, paragraph 3077 of the judgment under appeal. 97: - See paragraph 2768 of the judgment. 98: - See my thoughts in this Opinion and in the related ones of today's date concerning the lawfulness of using proof based on presumptions to rebut the presumption of innocence. 99: - See paragraphs 3345, 3353 and 3355 of the judgment under appeal. 100: - See paragraph 3360 of the judgment, which incorrectly refers to document 33.126/19218; in reality, as stated in recital 27, paragraph 10, second subparagraph, of the Decision, the reference should be to document 33.126/19208. 101: - As the Court of First Instance itself recognises at paragraph 2780 of the judgment. 102: - See recital 55, paragraph 2, of the Decision. 103: - See paragraphs 3286 and 3345 of the judgment. 104: - Record of the European Task Force meeting of 11 February 1987 (see recital 27, paragraph 5, of the Decision). 105: - See paragraph 3378 of the contested judgment, which refers to recital 57 of the Decision. 106: - By the contracts and supply agreements signed on 3 and 15 April 1987 by Unicem, Italcementi, Cementir and Calcestruzzi, a joint subsidiary known as Societá Italiana per le Promozioni ed Applicazioni del Calcestruzzo SpA (SIPAC) was set up (see paragraphs 444 and 445 of the judgment). The three producers undertook to meet all Calcestruzzi's cement requirements and to apply the price reductions specified. For its part, Calcestruzzi undertook to channel half of those discounts to the joint subsidiary, which was to invest the sums in ready-mix concrete companies or related activities, and to obtain at least 80% of its cement requirements from Italcementi, Unicem and Cementir or from companies designated by them. If Calcestruzzi's purchases were less than 95% of its requirements, the three producers reserved the right to terminate the agreements and contracts (see recital 27, paragraph 6, of the Decision and paragraph 3345 of the judgment). 107: - See Commission v Anic cited above, paragraph 81. 108: - See Montecatini v Commission, cited above, paragraph 195. 109: - See Commission v Anic, paragraph 81. 110: - Without prejudice to its impact on the assessment of the gravity of the infringement and, consequently, the intensity of the penalty (see paragraph 90 of the judgment cited in the previous footnote). 111: - See Case C-291/98 P Sarrió v Commission [2000] ECR I-9991, paragraph 50. 112: - Commission v Anic, cited above, paragraph 83. See also paragraph 203. 113: - See paragraph 4400 of the contested judgment. 114: - See paragraphs 1501 to 1518 and 1620 to 1682 of the judgment at first instance. 115: - See paragraphs 3068 to 3163 and 3345 to 3386 of the contested judgment. 116: - In which, certainly, Cementir was not found to have been involved in the infringement described therein. 117: - See paragraphs 3919, 4055 and similar paragraphs of the judgment under appeal. 118: - Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1). 119: - See recital 65, paragraph 7, of the Decision. 120: - See recital 65, paragraph 8, first indent, of the Decision. 121: - See Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 111. On the determination of the amount of fines in complex infringements, reference should be made to E. David, La détermination du montant des amendes sanctionnant les infractions complexes: régime commun ou régime particulier?, Revue trimestrielle de droit européen, No 36(3), July-September 2000, pp. 511 to 545. 122: - See recital 65, paragraph 3(a), and paragraph 9(a), first indent, of the Decision. 123: - Recital 65, paragraph 9, first subparagraph, of the Decision. See also paragraph 4950 of the judgment. The Commission set an aggregate fine on each undertaking in respect of its participation in the Cembureau agreement or principle and in the measures implementing it (recital 65, paragraph 8, second indent). 124: - Recital 65, paragraph 9(a) and (b), of the Decision. 125: - Recital 65, paragraph 9(a), of the Decision. 126: - Recital 65, paragraph 9(b), of the Decision. 127: - See the letter sent on 7 July 1998 to the Court of First Instance by the Commission, in particular paragraphs 2 and 3. See also paragraphs 4738, 4957 and 4963 of the judgment under appeal. 128: - See paragraphs 4807 to 4814 of the judgment, specifically the 17th indent of paragraph 4814. 129: - See paragraph 4815 and the seventh indent of point 39 of the operative part of the judgment under appeal. 130: - See Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 120, and Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 33; see also the order in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 54. 131: - In the work cited above, E. David states that la gravité s'apprécie selon trois critères: la nature de l'infraction, son impact sur le marché lorsqu'il est mesurable et le marché géographique et à deux niveaux: ceux de l'infraction et de l'entreprise (p. 552). 132: - By definition, infringements of Article 81 EC assume collective conduct. 133: - See Suiker Unie and Others v Commission, cited above, paragraph 623, and Hercules Chemicals v Commission, cited above, paragraph 110. 134: - See paragraphs 4975 and 4976 of the contested judgment. 135: - See the order in SPO and Others v Commission, cited above, paragraphs 55 and 57. 136: - According to the case-law of the Court of Justice, Article 15(2) of Regulation No 17 deals with two distinct matters. First, it lays down the conditions which must be fulfilled to enable the Commission to impose fines (initial conditions); these include the condition concerning the intentional or negligent nature of the infringement (first subparagraph). Secondly, it governs determination of the amount of the fine, which depends on the gravity and duration of the infringement (order in SPO and Others v Commission, cited above, paragraph 53, and Ferriere Nord v Commission, also cited above, paragraph 32). 137: - See recital 65, paragraph 9, of the Decision and paragraph 4968 of the judgment. 138: - Paragraph 4968, in fine, of the contested judgment. 139: - Point 184. 140: - Penalties can be imposed in respect of agreements whose purpose is to divide markets, irrespective of whether they subsequently have the actual effect of restricting competition. In Suiker Unie and Others v Commission, cited above, the Court of Justice indicated the agreements which have the object or effect of influencing the market (paragraph 174; emphasis added). That principle is now established in the case-law of the Court of Justice: although the very concept of a concerted practice presupposes conduct by the participating undertakings on the market, it does not necessarily mean that that conduct should produce the specific effect of restricting, preventing or distorting competition (Hüls v Commission, cited above, paragraph 165). See also Montecatini v Commission, cited above, paragraph 125. 141: - See paragraphs 4399 and 4400 of the contested judgment. 142: - See Article 1(2) of Regulation No 2988/74. 143: - The investigations took place between April 1989 and July 1990. 144: - See Sarrió v Commission, cited above, paragraph 86. 145: - See Musique diffusion française and Others v Commission, cited above, paragraph 119. See also Case C-248/98 P KNP BT v Commission [2000] ECR I-9641, paragraph 61. 146: - See Musique diffusion française and Others v Commission, cited above, paragraphs 120 and 121. Reference may also be made to Commission v Anic, cited above, paragraph 164, and Hüls v Commission, cited above, paragraph 195.