Judgment — ECLI:EU:T:1998:101
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;Infringement committed "deliberately or through negligence";Determining the amount of the fine;Rights of the defence and procedural guarantees;Agreements of undertakings, decisions by associations of undertakings and concerted practices;General;Termination of infringements: powers of the Commission
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Austria

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.
283 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.
284 In the specific circumstances set out in paragraph 282 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.
285 Consequently, this plea cannot be upheld.
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D — The plea that the applicant was wrongly characterised as a 'ringleader' of the
cartel
Arguments of the parties
286 The applicant contends that the Commission wrongly considered it to be one of
the cartel 'ringleaders'. The Commission has relied on only one piece of evidence
in support of that rinding, namely the fact that it was represented in the PWG
(point 170 of the Decision). However, that evidence cannot be regarded as suffi­
cient, because the Commission had not explained why Weig and KNP — which
were also represented in the PWG — were not considered to be 'ringleaders'.
287 Nor does the fact that the applicant presided over the PWG for less than 6 months
justify its characterisation as as one of the 'ringleaders'.
288 The participants in the PWG meetings were not the 'prime movers' of the cartel.
All the participants in meetings of the various bodies of the PG Paperboard took
part in all the discussions which may be regarded as infringements of Article 85 of
the Treaty. Moreover, the Commission itself asserts that all the bodies of the PG
Paperboard carried out functions which were part of an overall common plan to
restrict competition and that each undertaking took part in that overall scheme.
289 The Commission submits that the applicant must be regarded as one of the cartel
'ringleaders' because it participated in meetings of the PWG, the body in which
the main decisions relating to the price initiatives and the 'price before tonnage'
policy were taken (points 36 to 40 of the Decision). Moreover, having regard to the
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fact that the applicant presided over the PWG for a lengthy period, it must be
regarded as having played an especially active role in it.
Findings of the Court
290 It follows from the Court's findings in regard to the applicant's pleas in support of
its application for annulment of Article 1 of the Decision that the nature of the
PWG's functions, as described in the Decision, has been duly proved by the Com­
mission. The role played by the undertakings which met in that body, particularly
at the end of 1987, has also been proved.
291 In those circumstances, the Commission was entitled to conclude that the under­
takings, including the applicant, which participated in the meetings of that body
had to be regarded as 'ringleaders' of the infringement and that they therefore had
to bear special responsibility (see point 170, first paragraph of the Decision). It
should be pointed out that the Commission's criterion for classifying undertakings
as 'ringleaders' is not that they presided over the PWG but rather that they par­
ticipated in its meetings.
292 In the present case, there is no dispute that the applicant participated in the meet­
ings of the PWG from the creation of that body. Furthermore, it has not proved
that it played an essentially passive role in the bodies of the PG Paperboard.
293 Even if were correct that all the undertakings which participated in the meetings of
the various bodies of the PG Paperboard should be regarded as responsible for the
infringement, that would not undermine the finding that the undertakings which
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met in the PWG played a special role in the planning and implementation of the
unlawful acts.
294 Lastly, the Court considers that the explanations in the Decision are such as to
allow an assessment to be made of the role played by KNP and Weig. Thus,
according to point 170, second paragraph, of the Decision, KNP was considered to
be one of the 'ringleaders' of the cartel only during the period of its membership
of the PWG, a period that was shorter than that of its participation in the cartel.
Furthermore, the Commission states that it took account of the fact that Weig,
although a member of the PWG, did not seem to have played an important role in
the determination of the policy of the cartel (point 170, third paragraph). The
applicant's assertion that it has been treated less favourably than those undertak­
ings is therefore groundless.
295 This plea must therefore be rejected.
E — The plea alleging infringement of the rights of the defence
Arguments of the parties
296 The applicant contends that its rights of defence were infringed. The amount of the
fine imposed on it was, in effect, increased by 50% because it challenged some of
the Commission's allegations. It therefore received a heavier penalty because it did
not waive its rights of defence.
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297 According to the case-law of the European Court of Human Rights, any pressure
placed on undertakings to refrain from challenging the charges against them in
return for a reduction in their fine conflicts with Article 6 of the ECHR (judg­
ments of the European Court of Human Rights of 27 February 1980 in Deweer, A
series No 35, paragraphs 41 to 47, and of 25 February 1993 in Funkey A series No
256-A, paragraph 44). Furthermore, even in competition procedures directed
against undertakings, the investigating authorities are required to observe the pro­
cedural guarantees laid down in Article 6 of the ECHR, in particular that of the
presumption of innocence (judgments of the European Court of Human Rights of
8 June 1976 in Engel and Others, A series, No 22 of 21 February 1984 in Oztiirk,
A series, No 73, Deweer, cited above, and the opinion of the Commission of
Human Rights in Stenuit, No 11598/85, report of 30 May 1991).
298 The rights of the defence are recognised as a general principle of Community law,
and so undertakings cannot be compelled to admit the correctness of the objec­
tions raised against them (Case 374/87 Orkem v Commission [1989] ECR 3283,
paragraph 35). More particularly, it has been acknowledged that Article 6 of the
ECHR is applicable to the administrative procedure before the Commission (ibi­
dem, paragraph 30).
299 Threats were made against the undertakings during the administrative procedure
before the Commission in order to force them not to challenge the Commission's
allegations. The Commission admits that during that procedure it informed the
undertakings that cooperation on their part would be taken into account when it
calculated the fine.
300 Furthermore, the applicant's rights of defence were infringed as a result of the fact
that it was unable to have sight of the pleadings of undertakings whose fines had
been reduced for non-contestation of the Commission's essential allegations of
fact. In those circumstances, it was unable to verify whether they had really not
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contested the essential allegations and, therefore, whether it had been treated less
favourably than those undertakings.
301 The Commission considers that it is entitled to reduce fines in order to take
account of active cooperation on the part of undertakings (Case T-122/89 Solvay v
Commission [1992] ECR II-907, paragraphs 341 and 342, and ICI v Commission,
cited above, paragraph 393). Such a reduction in the fine can be regarded as an
infringement of the rights of defence of the undertakings in question only if the
Commission threatens to impose heavier fines on undertakings which do not
admit the infringements.
302 No pressure whatsoever was put on the applicant not to dispute the correctness of
the statement of objections. It offered the applicant the possibility of a reduced
fine upon the same conditions as those offered to all the other undertakings in
question.
303 The arguments based on the case-law of the European Court of Human Rights
and on the judgment in Orkem v Commission, cited above, are irrelevant. More­
over, in the latter judgment it is expressly stated (paragraph 30) that the ECHR is
irrelevant to the question at issue here.
304 Lastly, the Commission is not required to reveal, during the administrative pro­
cedure, the criteria which it plans apply in order to fix the fine (Case 322/81
Michelin v Commission [1983] ECR 3461, paragraphs 17 et seq.). It suffices for it
to indicate those criteria in the Decision itself. It is therefore sufficient for the
Decision to indicate the extent to which the various undertakings cooperated.
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Findings of the Court
305 The Commission determined the general level of fines on the basis of the consid­
erations set out in points 167 and 168 of the Decision. Moreover, it is common
ground that fines of a basic level of 9 or 7.5% of each undertaking's turnover on
the Community cartonboard market in 1990 were imposed on the undertakings
considered to be the cartel 'ringleaders' and on the other undertakings respectively.
306 The Court finds that the criteria set out in point 168 of the Decision justify the
general level of fines set by the Commission (see paragraph 262 above).
307 Points 169 to 172 of the Decision set out the factors which the Commission took
into account in order to determine the fine to be imposed on each undertaking. In
particular, in points 171 and 172, the Commission states that the fines imposed on
Rena and Stora had to be considerably reduced in order to take account of their
active cooperation with the Commission and that eight other undertakings were
also to benefit, to a lesser extent, from a reduction, owing to the fact that in their
replies to the statement of objections they had not contested the essential factual
allegations on which the Commission based its objections. In the proceedings
before the Court, the Commission has explained that it took account of the coop­
erative attitude of some undertakings during the administrative procedure by
reducing the fines imposed on two of them by two-thirds, and by one-third in the
case of the other undertakings.
308 Since the general level of fines adopted by the Commission has been found to be
justified in the light of the criteria set out in the Decision, the Court finds that the
Commission, as it indicated in the Decision, in fact reduced the amount of fines
imposed on the undertakings where they had adopted a cooperative attitude dur­
ing the administrative procedure. The applicant's contention that the Commission
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increased the amount of fines imposed on undertakings which had exercised their
rights of defence cannot therefore be accepted.
309 A decision not to reply to the statement of objections or not to express a view in
such a reply on the Commission's factual allegations in the statement of objec­
tions, together with a decision to challenge all or most of those allegations in a
reply — all of which are ways of exercising rights of the defence during the admin­
istrative procedure before the Commission — cannot justify a reduction in the fine
on grounds of cooperation during the administrative procedure. A reduction on
those grounds is justified only if the conduct made it easier for the Commission to
establish an infringement and, as the case may be, to put an end to it (see the judg­
ment in ICI v Commission, cited above, paragraph 393). In those circumstances, 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 facili­
tated the Commission's task of finding and bringing to an end infringements of the
Community competition rules.
310 Lastly, as regards Article 6 of the ECHR, contrary to the applicant's contention,
the Court of Justice did not hold in its judgment in Orkem v Commission that that
provision applies to the administrative procedure before the Commission, but
merely envisaged the possibility that it might apply in the case in point, as is clear
from the wording of the judgment (paragraph 30).
311 The Court of First Instance has no jurisdiction to apply the ECHR when review­
ing an investigation under competition law, because the ECHR is not itself part of
Community law.
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312 However, it is settled law that fundamental rights form an integral part of the gen­
eral principles of law whose observance the Community judicature ensures (see, in
particular, Opinion 2/94 [1996] ECR 1-1759, paragraph 33, and Case C-299/95
Kremzow v Austria [1997] ECR I-2629, paragraph 14). For that purpose, the
Court of Justice and the Court of First Instance draw inspiration from the consti­
tutional traditions common to the Member States and from the guidelines supplied
by international treaties for the protection of human rights on which the Member
States have collaborated or of which they are signatories. The European Conven­
tion on Human Rights has special significance in that respect (Case 222/84
Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651,
paragraph 18, and Kremzow, cited above, paragraph 14). Furthermore, as provided
in Article F(2) of the Treaty on European Union, 'the Union shall respect funda­
mental rights, as guaranteed by the [European Convention on Human Rights] and
as they result from the constitutional traditions common to the Member States, as
general principles of Community law'.
313 It is therefore necessary to examine whether, in the light of those considerations,
the Commission failed to observe the rights of the defence, a fundamental prin­
ciple of the Community legal order (Michelin v Commission, cited above, para­
graph 7), by exercising allegedly unlawful pressure on the applicant during the
administrative procedure so as to induce it to acknowledge the factual allegations
in the statement of objections.
314The fact that, without specifying the size of a reduction, the Commission indicates,
during the administrative procedure, to an undertaking involved in the investiga­
tion that it would be possible to reduce the fine to be imposed if it were to admit
most or all of the factual allegations, cannot of itself constitute pressure on that
undertaking.
315 In any event, the applicant has not explained how the Commission's offer during
the administrative procedure of a possible reduction in the fine to be imposed
amounted to pressure of such a kind that it was compelled to admit the essential
factual allegations in the statement of objections. Moreover, the applicant exercised
its rights of defence during the administrative procedure, because it in fact eon­
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tested the essential allegations of fact on which the Commission based its objec­
tions. It follows that this argument must be rejected.
316 Finally, the applicant has not explained how the principle of the presumption of
innocence has been infringed.
317 The applicant's argument that it has been unable to establish whether it was treated
differently from the other undertakings involved in the investigation will be con­
sidered in the context of the plea alleging infringement of the principle of equal
treatment (see paragraphs 334 and 335 below).
318 Having regard to the foregoing, this plea must be rejected.
F — The plea alleging infringement of the principle of equal treatment in that the
applicant's fine was not reduced
Arguments of the parties
319 The applicant contends that it was treated less favourably than the undertakings
whose fines were reduced on the ground that they had not contested the Commis­
sion's essential factual allegations (point 172 of the Decision).
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320 It is apparent from the Commission's letter of 27 April 1994 that in order to
receive a reduction the applicant was required to acknowledge the material correct­
ness of the objections, whereas the other undertakings were asked merely not to
contest the essential allegations of fact.
321 The applicant did not contest the Commission's essential factual allegations. Its
fine should therefore have been reduced. It has always admitted that it participated
in discussions on prices and price increases and even stated that such discussions
were, according to the case-law, concerted practices contrary to Article 85 of the
Treaty. Furthermore, the Commission expressly acknowledged in the individual
particulars annexed to the statement of objections that the applicant had cooper­
ated in this way.
322 The applicant was unable to admit that the Commission's assessment of the facts
was correct, particularly as regards its allegations relating to the existence of agree­
ments on pricing and a perfectly organised cartel, because to do so might have
exposed it to proceedings brought against it in the national courts.
323 The applicant claims that it cooperated actively with the Commission, given, par­
ticularly, that it proposed, jointly with certain other undertakings, a solution
whereby they would refrain from bringing actions in return for a reduction in the
amount of the fine. That proposal in itself justified a reduction in the fine.
324 Finally, to the extent that it has been able to assess the submissions made by the
undertakings which received a reduction in the fine, the applicant concludes that it
has obviously been the subject of discrimination. In that regard, it relies on the
main pleas in the actions brought by Sarrio and by Enzo-Española, as published in
the Official Journal (OJ 1994 C 380, p. 20 and p. 22). It is apparent that in the
proceedings before the Court of First Instance those undertakings are contesting
the Commission's allegations at least to the same extent as the applicant. However,
those two undertakings obtained reductions in the fines on account of their alleged
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failure to contest those allegations. Moreover, the applicant cites extracts from the
statements made by the representative of Weig at the hearing before the Commis­
sion and refers to that undertaking's pleas before the Court of First Instance (as set
out in OJ 1994 C 380, p. 16 et seq.). The applicant concludes from this that,
although Weig obtained a reduction in the fine, it is contesting the Commission's
allegations to the same extent as itself.
325 The Commission observes that it is not merely entitled to reduce fines to take
account of active cooperation, but that a reduction is sometimes even required
(ICI v Commission, cited above, paragraph 393). When calculating the fines, the
Commission may therefore take a failure to contest facts into account as a mitigat­
ing factor, because such cooperation helps to clarify the facts and to accelerate the
procedure.
326 The applicant has not proved any active cooperation of that kind. First, it admitted
only the existence of a concerted practice, which does not constitute an acknowl­
edgement of the facts. Moreover, it has always disputed not only that pricing
agreements were adopted but also that there was any collusion on production vol­
umes, market shares and the planned implementation of price initiatives.
327 The applicant's proposal for ending the procedure cannot be regarded as active
cooperation justifying a reduction in the fine. The waiver of a right to bring an
action cannot clarify the facts. Nor does it accelerate the procedure, since the
Commission has no interest in concluding such 'arrangements' with undertakings.
328 As regards the alleged unequal treatment of the applicant in comparison with
Sarrio and Enzo-Espanñola, the Commission submits that those two undertakings
did not, on any view, contest the substance of the Commission's findings of fact
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before the Decision was published. The reduction in their fines was therefore justi­
fied. Nor is Weig's behaviour comparable to that of the applicant. First, neither in
its reply to the statement of objections nor thereafter did Weig challenge the
substance of the Commission's findings. Second, it helped to clarify the facts by
obtaining a statement from a member of the Feldmühle management board who
had taken part in meetings of several bodies of the PG Paperboard.
Findings of the Court
329 In its reply to the statement of objections, the applicant admitted only that the
discussions which took place in the bodies of the PG Paperboard could have con­
cerned prices and price increases.
330 The Commission correctly considered that the applicant, by replying in that way,
did not conduct itself in a manner which justified a reduction in the fine on
grounds of cooperation during the administrative procedure. A reduction on that
ground is justified only if the conduct enabled the Commission to establish an
infringement more easily and, where relevant, to bring it to an end (see ICI v
Commission, cited above, paragraph 393).
331 As the Court has already pointed out (see paragraph 309 above), 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 furthered the Com­
mission's task of finding infringements of the Community competition rules and
bringing them to an end. In its decisions finding infringements of those rules, the
Commission is entitled to take the view that such conduct constitutes an acknowl­
edgement of the factual allegations and thus proves that those allegations are cor­
rect. Such conduct may therefore justify a reduction in the fine.
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332 The situation is different where the undertaking does not reply to the statement of
objections or merely states that it is not expressing any view on the Commission's
factual allegations in the statement of objections, or where the essential aspects of
those allegations are contested by it in its reply to that statement, as they were by
the applicant. By adopting such an attitude during the administrative procedure
the undertaking does not further the Commission's task of finding infringements
of the Community competition rules and bringing them to an end. It is also clear
that the applicant's proposal to the Commission during the administrative pro­
cedure, namely not to bring proceedings before the Court of First Instance to
challenge the decision which would be adopted, could not further that task either.
333 Consequently, when the Commission states in the first paragraph of point 172 of
the Decision that it has awarded reductions in the fines to be imposed on under­
takings which did not contest the essential factual allegations upon which it relied
against them, those reductions can be considered to be lawful only in so far as the
undertakings concerned have expressly stated that they are not contesting those
allegations.
334 Even if the Commission applied an unlawful criterion by reducing the fines
imposed on undertakings which had not expressly stated that they were not con­
testing the factual allegations, it is necessary that respect for the principle of equal
treatment be reconciled with the principle of legality, according to which a person
may not rely, in support of his claim, on an unlawful act committed in favour of a
third party (see, for example, Case 134/84 Williams v Court of Auditors [1985]
ECR 2225, paragraph 14). For that reason, as the applicant's argument is directed
specifically at establishing its right to an unlawful reduction in the fine, that argu­
ment cannot be upheld.
335 As the fact that the Commission may have unlawfully reduced some fines cannot
lead to a reduction in the applicant's fine, the applicant cannot claim that its rights
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of defence were infringed by its inability to verify whether it was treated differ­
ently from the other undertakings in that regard.
336 Lastly, the applicant cannot avail itself of the argument that Sarrio and Enzo-
Española and, to a certain extent Weig, obtained a reduction of one-third in the
amount of their fines, even though they have disputed the allegations in the
Decision in their actions brought before the Court. In granting reductions in the
fines the Commission took into account only the undertakings' conduct during the
administrative procedure.
337 The plea must therefore be rejected.
G — The plea alleging infringement of the principle of equal treatment in that the
fine imposed on the applicant is too high in comparison with that imposed on Stora
Arguments of the parties
338 The applicant contends that it is settled law that fines must be fixed on an indi­
vidual basis, without discrimination, and take into account each undertaking's par­
ticipation in the infringement, its market position and its general economic situa­
tion (see Case 44/69 Buckler v Commission [1970] ECR 733, Suiker Unie and
Others v Commission, cited above, and Case 32/78 and 36/78 to 82/78 BMW and
Others v Commission [1979] ECR 2435). The Court of Justice and Court of First
Instance have repeatedly stressed the importance of the principle of equal treat­
ment (Case 35/83 BAT v Commission [1985] WECR 363, paragraphs 43 to 47,
Case C-279/87 Tipp-Ex v Commission [1990] ECR I-261, summary publication,
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JUDGMENT OF 14. 5. 1998 — CASE T-347/94
paragraphs 40 and 41, and Dansk Pelsdyravlerforening v Commission, cited above,
paragraph 52, and ICI v Commission, cited above).
339 In view of that case-law, the applicant considers that the Commission cannot argue
that the applicant is precluded from relying on the fact that favourable treatment
was given to Stora.
340 The plea is in two parts.
341 In the first part, the applicant contends that its fine is disproportionate in compari­
son with that imposed on Stora.
342 It states that Feldmühle systematically undercut prices, which forced the applicant
and other non-Community producers to cease their policy of expanding their
shares of the Community market. The representatives of Stora/Feldmiihle played a
particularly active role in the JMC and PWG. Lastly, Stora was, during the period
in question, the European cartonboard market leader, with a market share of
approximately 14%.
343 Stora's fine, before any reduction, should therefore have been considerably higher
than the applicant's. The Commission therefore infringed the principle of equal
treatment when it fixed the fines (ICI v Commission, cited above, paragraphs 352
and 354 et seq.).
344 In the second part of the plea the applicant submits that the reduction in the fine
granted to Stora also infringes the principle of equal treatment. In the first place,
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the Commission wrongly took the view that Stora's cooperation was voluntary
and spontaneous. Stora's 'admission' was in fact made nine months after the BPIF
complaint had been lodged (which came rapidly to the attention of the industry),
that is to say, four months after the Commission's investigations and only after
Stora received the Commission's request for information, .
345 Second, the applicant disputes that Stora's 'admission' really contributed decisively
to proving the alleged infringement. It refers in that regard to the Commission's
assertion that Stora's statements are corroborated on all material points by other
documents.
346 Third, the reduction granted to Stora is in any event disproportionate. A compari­
son between the Court's findings in ICI v Commission, cited above, paragraph
393), and the facts of the present case shows that Stora should not in any event
have received more favourable treatment than that received by ICI before the
Court.
347 Fourth, relying in particular on Solvay v Commission, cited above (points 341 et
seq.), it contends in its reply that it is doubtful whether the mere fact of an admis­
sion may be rewarded by a reduction for cooperation, because undertakings are in
any event required to reply to the Commission's request for information.
348 Lastly, in its reply, it asserts that the Commission imposed higher fines on some
undertakings solely because they had not fully accepted Stora's version of the
facts. That is unacceptable, particularly in view of the fact that Stora was one of the
undertakings most seriously involved and therefore had an obvious interest in
playing down its own role in the cartel in comparison with that of the other under­
takings.
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349 According to the Commission, the applicant is not disputing the lawfulness of its
own fine but rather that of Stora's fine. However, the applicant cannot invoke the
unlawfulness, if any, of Stora's fine, because the principle of equal treatment does
not mean that, if the fine imposed on Stora is unlawful, the applicant may claim
such unlawful treatment for itself.
350 In any event, the fine imposed on Stora is appropriate. Furthermore, infringement
of the principle of equal treatment presupposes that comparable cases have been
treated differently. The applicant's situation is not comparable to that of Stora.
Although both undertakings had to be regarded as 'ringleaders' who had to bear a
special responsibility, it is nevertheless the case that Stora fully and rapidly cooper­
ated with the Commission, which the applicant failed to do.
351 Lastly, the Commission observes that Stora's statement went well beyond the
Commission's requests for information and that Stora did not, as the applicant
asserts, retract the major part of its admissions.
Findings of the Court
352 It is settled law that the principle of equal treatment, one of the fundamental prin­
ciples of Community law, is infringed only if comparable situations are treated dif­
ferently or different situations are treated in the same way and such treatment is
not objectively justified (Case 106/83 Sermide [1984] ECR 4209, paragraph 28,
Case C-174/89 Hoche [1990] ECR I-2681, paragraph 25 and, to the same effect,
Case T-100/92 La Pietra v Commission [1994] ECR-SC II-275, paragraph 50).
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353 In the present case, the applicant claims that this principle was infringed. It con­
tends that its fine was calculated on the basis of a basic rate identical to that
adopted in order to calculate the fine imposed on Stora, namely 9% of turnover on
the Community cartonboard market in 1990, whereas its role in the cartel differed
from that of Stora.
354 It suffices to find in that regard that it is clear from the Decision that Stora and the
applicant participated in the various constituent elements of the cartel as partici­
pants in the PWG meetings and that the two undertakings were characterised as
'ringleaders' of the cartel on account of their participation in the meetings of that
body of the PG Paperboard. It follows that the situations of those undertakings in
the cartel did not differ and that their identical treatment when calculating the fine
was justified. Even if the factors on which the applicant relies in order to show
that it played a less active role than Stora in the PWG were proved, they would
not be capable of undermining the Commission's finding as to the respective roles
of the applicant and Stora. In those circumstances, the first part of the plea must be
rejected.
355 Nor can the second part of the plea be upheld.
356 Stora supplied the Commission with statements containing a highly detailed
description of the nature and object of the infringement, the operation of the vari­
ous bodies of the PG Paperboard, and the participation of the various producers in
the infringement. Through those statements, Stora supplied information well in
excess of that which the Commission may require to be supplied under Article 11
of Regulation No 17. Although the Commission states in the Decision that it
obtained evidence corroborating the information contained in Stora's statements
(points 112 and 113 of the Decision), it is clear that Stora's statements constituted
the principal evidence of the existence of the infringement. Without those state­
ments, it would therefore have been, at the very least, much more difficult for the
Commission to establish or put an end to the infringement with which the
Decision is concerned.
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357 In those circumstances, the Commission, by reducing by two-thirds the fine
imposed on Stora, did not overstep the limits of its discretion when determining
the amount of fines. The applicant cannot therefore validly claim that the reduc­
tion granted to Stora is disproportionate.
358 Furthermore, the principle of equal treatment was not infringed in this case
because, unlike Stora, which cooperated actively with the Commission, the appli­
cant contested the essential factual allegations on which the Commission based its
objections. Since their situations were not comparable, the Commission was there­
fore entitled to treat those undertakings differently when deciding whether and to
what extent a reduction in their fines should be granted.
359 In the light of the foregoing, the plea must be rejected as unfounded.
H — The plea of mitigating circumstances
Arguments of the parties
360 The applicant submits that certain facts should have been regarded by the Com­
mission as mitigating factors when the amount of the fine was fixed.
361 First, the applicant did not attempt to conceal incriminating documents, even
though it had been given prior notice of an investigation by the Commission's rep­
resentatives.
II-1858
MAYR-MELNHOF v COMMISSION
362 Second, it was a medium-sized undertaking until mid-1990. Only in that year was
its new machine installed at the Neuss cartonboard mill and the takeover of Deiss-
wil and Eerbeek completed in April and September respectively (with retroactive
effect from 1 January 1990).
363 Third, it is the first infringement in the cartonboard industry.
364 Fourth, the price increases of GD cartonboard, the type principally produced by
the applicant, were less than those for GC cartonboard. The applicant was there­
fore unable to obtain the operating margin which the other undertakings were held
to have obtained.
365 Lastly, in its reply the applicant submits that, in accordance with its previous prac­
tice, the Commission should have taken into account the difficult conditions which
prevailed in the cartonboard sector until the end of the 1980s which precluded the
possibility of a proper return on capital invested. It should also have taken into
account the fact that the sector in question is characterised by high turnover but
relatively low profits. Fines calculated on the basis of the cartonboard producers'
turnover alone therefore has a particularly severe impact on the producers.
366 The Commission argues that it was not required to take those matters into con­
sideration as mitigating factors.
II-1859
JUDGMENT OF 14. 5. 1998 — CASE T-347/94
Findings of the Court
367 As the Court has already pointed out (paragraph 256 above) the gravity of
infringements falls to be determined by reference to numerous factors including, in
particular, the specific circumstances and context of the case, and the deterrent
character of the fines; moreover, no binding or exhaustive list of the criteria which
must be applied has been drawn up (order in SPO and Others v Commission, cited
above, paragraph 54).
368 Consequently, the mere fact that the Commission has found in its previous deci­
sions that certain factors constitute mitigating circumstances for the purpose of
determining the amount of the fine does not mean that it is obliged to do so also
in a subsequent decision. Even if the loss-making situation of the industry had
been established, the Commission was not by reason of this fact required to take it
into account.
369 Moreover, in order to calculate the amount of the fine the Commission took into
account the applicant's turnover on the Community cartonboard market in 1990.
The applicant's position in the sector and the scale of the infringement which it
had committed were therefore taken into account by the Commission.
370 Lastly, the fact that, according to the applicant, the infringement is the first to have
taken place in the sector in question cannot constitute a mitigating circumstance.
The fact that the Commission has already found an undertaking guilty of infring­
ing the competition rules in the past and has penalised it for that infringement may
be treated as an aggravating factor as against that undertaking. However, the
absence of any previous infringement is a normal circumstance which the Com­
mission does not have to take into account as a mitigating factor, especially since
the present case involves a particularly clear infringement of Article 85(1) of the
Treaty (see Case T-8/89 DSM v Commission [1991] ECR 11-1833, paragraph 317).
II-1860
MAYR-MELNHOF v COMMISSION
371 In those circumstances, the Commission was entitled to take the view that the fac­
tors to which the applicant refers should not be taken into account in mitigation.
372 This plea cannot therefore be upheld.
I — The plea that the infringement was not intentional
373 The applicant submits that at the material time it was not aware that the infor­
mation exchange in which it was participating was unlawful. Regard should be had
to the fact that it was a medium-sized undertaking, without an in-house lawyer,
and was situated outside the Community. Moreover, Austrian competition law
provides for fines only in the case of binding agreements; in the present case there
were only concerted practices.
374 This plea cannot be upheld.
375 It is settled case-law that it is not necessary for an undertaking to have been aware
that it was infringing Article 85(1) of the Treaty for an infringement to be regarded
as having been committed intentionally It is sufficient that it could not have been
unaware that the contested conduct had as its object or effect the restriction of
competition in the common market (Case 246/86 BeUsco and Others v Commis­
sion [1989] ECR 2117, paragraph 41, and Dansk Pelsdyravlerforening v Commis­
sion, cited above, paragraph 157).
II-1861
JUDGMENT OF 14. 5. 1998 — CASE T-347/94
376 In the present case, the Commission has proved that the applicant participated in
the constituent elements of the infringement found in Article 1 of the Decision. In
view of the nature of the conduct in question, the applicant could not have been
unaware that its object was to restrict competition.
J — The plea that the wrong turnover figure was taken into account
377 This plea is in two parts which will be considered separately.
First part: turnover from sales of greyboard was wrongly taken into account in
order to calcule the fine
Arguments of the parties
378 The applicant submits that the Commission calculated the fine on the basis of its
turnover in 1990 from all sales of cartonboard products. That figure therefore
includes turnover from sales of greyboard. However, the Commission stated in its
press release of 13 July 1994 that the fines had been calculated on the basis of the
each undertaking's turnover from cartonboard grades covered by the Decision.
379 As greyboard is not one of the cartonboard grades covered by the Decision, the
turnover figure taken as the basis for calculating the fine should be reduced by
ECU 13.1 million, the amount attributable to greyboard sales. The fine should
therefore be reduced proportionately.
380 The Commission contends that a strictly mathematical formula cannot be used to
calculate the fine. In the present case, the fine is appropriate in view of the appli-
II-1862
MAYR-MELNHOF v COMMISSION
cant's total turnover, because the undertakings have no right to require that only
turnover from products to which the infringement directly relates should be taken
into account. There are aggravating, but no mitigating, circumstances. Moreover, it
took turnover in 1990 (rather than in 1993), and only turnover achieved through
cartonboard sales in the Community, as its basis for calculating the fine.
381 In its rejoinder it submits that in its letter of 8 October 1993 it requested the appli­
cant to inform it of its turnover relating to cartonboard. In its reply of 3 Novem­
ber 1993 the applicant supplied that figure under the heading 'cartonboard prod­
ucts (GC, GD)'. Since the statement of objections had expressly indicated that
greyboard was not covered by the proceedings, the Commission therefore had no
reason to verify the correctness of the turnover figure given.
Findings of the Court
382 According point 4, second paragraph, of the Decision, greyboard was not the sub­
ject of the infringement with which the Decision is concerned.
383 It is not disputed that the Commission calculated the amount of the applicant's
fine on the basis of its turnover on the Community market in 1990 from sales of
GC cartonboard, GD cartonboard and greyboard. As the Commission accepted at
the hearing, the information supplied by the applicant to the Commission prior to
the statement of objections expressly stated that the turnover figure given included
turnover from greyboard sales.
384 Moreover, even though the Commission could not have been unaware that the
turnover figure which it was using included turnover from greyboard, it never
requested the applicant to inform it of its turnover in 1990 solely from products
II-1863
JUDGMENT OF 14. 5. 1998 — CASE T-347/94
with which the proceedings were concerned, namely GC, GD and, as appropriate,
SBS cartonboard.
385 Nevertheless, as it also admitted at the hearing, in the case of the other undertak­
ings to which the Decision was addressed, the Commission took into account only
turnover from products to which the infringement related.
386 In view of that finding, and having regard to the fact that the inclusion of turnover
from greyboard had a not inconsiderable effect on the amount of the fine, the
Court must reduce that amount in order to eliminate the disadvantage suffered by
the applicant in comparison with the other addressees of the Decision.
387 The Court will consider the implication of that conclusion, in the exercise of its
unlimited powers in regard to fines, when it assesses what fine should be imposed
in respect of the infringement which the applicant is found to have committed (see
paragraph 405 below).
Second part: the turnover of Deisswil and Eerbeek was erroneously taken into
account in order to calcule the amount of the fine
Arguments of the parties
388 The applicant submits that the turnover achieved in 1990 by the Deisswil and
Eerbeek mills should not have been taken into account in order to calculate the
fine.
II-1864
MAYR-MELNHOF v COMMISSION
389 As regards Deisswil, it observes that it acquired a 66% holding in that company in
April 1990, which was effective from 1 January 1990, and so acquired control over
it. Deisswiľs former owners, who were responsible for its conduct for more than
three quarters of the relevant period, still hold a 34% share in it. It is therefore
inequitable to attribute the whole of Deisswiľs turnover to the applicant, when the
former owners, who still receive one third of the profits, are not affected by the
fine. In those circumstances, a fine should either be imposed directly on Deisswil
— as in the case of Laakmann (point 150, third paragraph, of the Decision) — or
Deisswiľs turnover should be attributed to the applicant only on a pro rata tem­
poris (13/16) basis, the denominator corresponding to the total period of the
infringement, expressed in months, to which the Commission referred when cal­
culating the amount of the individual fines).
390 The applicant is responsible for Eerbeek's conduct only from 1 January 1990, prior
to which KNP has been held responsible (point 150 of the Decision). However, by
taking the whole of Eerbeek's turnover in 1990 in order to calculate the applicant's
fine, the Commission did not follow its own approach, because it also took that
figure into account when calculating the fine imposed on KNP.
391 Furthermore, the applicant acquired full control over Eerbeek only in September
1990. It was therefore able to exercise decisive influence on its conduct on the mar­
ket only from that date. According to the practice in regard to fines and the prin­
ciples in the case-law, Eerbeek's turnover should be attributed to the applicant
only from that date. Eerbeek's turnover in 1990 (the reference year) can therefore
be attributed to it only as to 8/60, namely from September 1990 to April 1991.
II-1865
JUDGMENT OF 14. 5. 1998 — CASE T-347/94
392 In its reply, the applicant adds that the treatment of the Eerbeek and Deisswil cases
is contradictory, because the Commission submits that in the case of Eerbeek the
decisive criterion is the identity of the recipient of the profits during the relevant
period, but that, in the case of Deisswil, that criterion is irrelevant and that the
decisive criterion is that of actual control.
393 The Commission submits that, when calculating the fine, it rightly took into
account the turnover achieved in 1990 by Deisswil and Eerbeek. For the purposes
of that calculation, it was necessary to fix a reference year. That was 1990 in this
case. Companies which had a higher turnover in that year than in other years were
therefore fined more heavily. However, as the reference year was correctly chosen,
there are no grounds for a distinction to be made according to the reasons for such
an increase in turnover.
394 The Commission correctly took account of the fact that the applicant fully con­
trolled Deisswil in 1990 and that it could therefore direct its business conduct. In
those circumstances, the fact that the applicant did not receive all Deisswill's prof­
its is irrelevant.
395 The Commission contends that, in the case of Eerbeek, the decisive factor was the
fact that the applicant had received the profits from 1 January 1990 and that it had
therefore benefited economically from the infringement with effect from that date.
396 Lastly, Eerbeek's turnover was not unlawfully taken into account twice.
II-1866
MAYR-MELNHOF v COMMISSION
Findings of the Court
397 The applicant does not dispute that on the date when it acquired control of Deiss¬
wil both Deisswil and itself were participating in the infringement with which the
Decision is concerned. It must therefore have been aware of Deisswil's anti­
competitive conduct.
398 In those circumstances, the Commission was entitled to attribute to it Deiswil's
conduct in the period before and after its acquisition of that undertaking. It was
for the applicant, as parent company, to adopt in regard to its subsidiary any meas­
ure necessary to prevent the continuation of the infringement of which it was not
unaware. The applicant does not dispute that Deisswil's unlawful conduct contin­
ued after the date on which it acquired control over it.
399 For the purpose of calculating the fine imposed on the applicant, the Commission
was therefore entitled to include Deisswil's turnover on the Community carton-
board market in 1990, which was chosen as reference year and has not been chal­
lenged as such by the applicant. It also follows that it is irrelevant whether the
Commission could have imposed some or all of the fine on Deisswil itself or on its
former owners.
400 As regards Eerbeek, the second paragraph of point 150 of the Decision states as
follows:
'[Mayr-Melnhof] is also responsible for the participation in the infringement of ...
Mayr-Melnhof Eerbeek BV (as KNP Vouwkarton was renamed) from the date of
its acquisition on 1 January 1990. Responsibility for the participation of KNP
Vouwkarton before the takeover lies with KNP and no liability is attributed to
[Mayr-Melnhof] for this period'.
II-1867
JUDGMENT OF 14. 5. 1998 — CASE T-347/94
401 Nevertheless, in order to calculate the fine imposed on the applicant, the Commis­
sion took into account Eerbeek's total turnover on the Community cartonboard
market in 1990 (the reference year) and did not apportion it pro rata temporis so as
to take into account solely the period during which Eerbeek was under the appli­
cant's control. In so doing, it failed to have regard to its own finding that the
applicant was responsible for the participation of KNP Vouwkarton/Eerbeek in
the infringement only from 1 January 1990.
402 Since the Commission has expressly accepted at the hearing that it committed an
error in that regard, the amount of the fine must be reduced.
403 It should be added that, although the applicant acquired 100% control of Eerbeek
in September 1990, it does not distíute that the acquisition was effective as from 1
January 1990. In those circumstąńoeś, since the applicant could not have been
unaware of the unlawful conduct of the company which it acquired (see, to the
same effect, paragraph 397 above), the Commission was entitled to take the view
that the applicant had to bear responsibility for that conduct from 1 January 1990.
404 It follows from the whole of the foregoing that the pleas on which the applicant
relies in support of its application for annulment of Article 1 of the Decision must
be rejected, but that the plea in support of its application for annulment of Article
2 of the Decision must be upheld in part.
405 The fine imposed must be reduced in order to take account, first, of the fact that
the applicant's turnover from sales of greyboard was wrongly taken into account
in order to calculate the amount of the fine and, second, of the fact that the appli­
cant was responsible for Eerbeek's conduct only with effect from 1 January 1990.
II-1868
MAYR-MELNHOF v COMMISSION
406 As none of the other pleas on which the applicant relies justifies a reduction in the
fine, the Court, exercising its unlimited jurisdiction, sets the amount of that fine at
ECU 17 000 000.
Costs
407 Under Article 87(3) of the Rules of Procedure, the Court may, where each party
succeeds on some and fails on other grounds, order costs to be shared or order
each party to bear its own costs. As the action has been only partially successful,
the Court considers it fair in the circumstances of the case to order the Commis­
sion to bear its own costs and to pay one quarter of the applicant's costs and to
order the applicant to bear three quarters of its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition)
hereby:
1. Annuls, as regards the applicant, the first to fourth paragraphs of Article 2
of Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding
under Article 85 of the EC Treaty (IV/C/33.833 — Cartonboard) save and
except the following passages:
'The undertakings named in Article 1 shall forthwith bring the said
infringement to an end, if they have not already done so. They shall hence-
II-1869
JUDGMENT OF 14. 5. 1998 — CASE T-347/94
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.
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.';
2. Sets the amount of the fine imposed on the applicant by Article 3 of
Decision 94/601 at ECU 17 000 000;
3. Dismisses the application as regards the remaining claims;
4. Orders the Commission to bear its costs and to pay one quarter of the appli­
cant's costs;
5. Orders the applicant to bear three quarters of its costs.
Vesterdorf Briet Lindh
Potocki Cooke
Delivered in open court in Luxembourg on 14 May 1998.
H. Jung
Registrar
B. Vesterdorf
President
II-1870
MAYR-MELNHOF v COMMISSION
Summary
Facts II - 1760
Procedure II - 1767
Forms of order sought II - 1769
The application for annulment of Article 1 of the Decision II - 1770
A — The pleas relating to the infringement of essential procedural requirements II - 1770
Infringement of Article 190 of the Treaty II - 1770
Arguments of the parties II - 1770
Findings of the Court II - 1772
Infringement of the requirements relating to proof under Community law II - 1773
B — The pleas alleging infringement of substantive rules II - 1773
The plea that there were no agreements on prices II - 1773
Arguments of the parties II - 1773
Findings of the Court II - 1777
The plea that there was no agreement or concerted practice relating to the alleged
'price before tonnage' policy II - 1781
Arguments of the parties II - 1781
Findings of the Court II - 1787
1. Existence of concerted action to freeze market shares and control
supply II- 1787
2. The applicant's actual conduct II - 1795
3. The characterisation in law of the concerted action to freeze market
shares and control supply II - 1796
The plea that there was no common industry plan to restrict competition II - 1797
Arguments of the parties II - 1797
Findings of the Court II - 1797
The plea that the Fides information exchange system is lawful II - 1799
Arguments of the parties II - 1799
Findings of the Court II - 1800
The application for annulment of Article 2 of the Decision II - 1804
Arguments of the parties II - 1804
Findings of the Court II - 1807
II-1871
JUDGMENT OF 14. 5. 1998 — CASE T-347/94
The application for annulment or reduction of the amount of the fine II - 1814
A — The plea that manifest errors of fact or of law were made when the amount of the
fine was fixed II - 1814
First part: errors by the Commission when it determined the scope of the infringe­
ments II - 1814
Second part: no detailed regulation of the Community cartonboard market 11-1815
Arguments of the parties II - 1815
Findings of the Court II - 1815
Third part: secrecy and disguise should not be regarded as aggravating factors 11-1816
Arguments of the parties II - 1816
Findings of the Court II - 1817
Fourth part: the Commission wrongly found that the cartel had been 'largely suc­
cessful in achieving its objectives' II - 1819
Arguments of the parties II - 1819
Findings of the Court II - 1821
Fifth part: an erroneous operating margin was taken into account II - 1826
Arguments of the parties II - 1826
Findings of the Court II - 1826
B — The pleas alleging infringement of Article 190 of the Treaty and infringement of the
principle of equal treatment in regard to the general level of the fines II - 1827
Arguments of the parties II - 1827
Findings of the Court 11-1830
C — The plea alleging infringement of Article 190 of the Treaty when the individual
fines were fixed II - 1833
Arguments of the parties II - 1833
Findings of the Court II - 1836
D — The plea that the applicant was wrongly characterised as a 'ringleader' of the
cartel II- 1840
Arguments of the parties II - 1840
Findings of the Court II - 1841
E — The plea alleging infringement of the rights of the defence II - 1842
Arguments of the parties II - 1842
Findings of the Court II - 1845
II-1872
MAYR-MELNHOF v COMMISSION
F — The plea alleging infringement of the principle of equal treatment in that the appli­
cant's fine was not reduced II - 1848
Arguments of the parties II - 1848
Findings of the Court II - 1851
G — The plea alleging infringement of the principle of equal treatment in that the fine
imposed on the applicant is too high in comparison with that imposed on Stora . II - 1853
Arguments of the parties II - 1853
Findings of the Court II - 1856
H — The plea of mitigating circumstances II - 1858
Arguments of the parties II - 1858
Findings of the Court II - 1860
I — The plea that the infringement was not intentional II - 1861
J — The plea that the wrong turnover figure was taken into account II - 1862
First part: turnover from sales of greyboard was wrongly taken into account in
order to calculate the fine II - 1862
Arguments of the parties II - 1862
Findings of the Court II - 1863
Second part: the turnover of Deisswil and Eerbeek was erroneously taken into
account in order to calculate the amount of the fine II - 1864
Arguments of the parties II - 1864
Findings of the Court II - 1867
Costs II - 1869
II-1873