Judgment — ECLI:EU:T:1998:103
Date: 1998-05-14
Language of the case: English
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;Pleas in law;Determining the amount of the fine;Admissibility and examination of applications, forms of order sought and pleas in law;Rights of the defence and procedural guarantees;Decision of the Commission;Definition of undertaking;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Hearing of persons concerned and of third parties / Access to the file;Termination of infringements: powers of the Commission
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - inadmissible;Appeal against penalty - unfounded
Origin: Sweden

summary of the infringement and some unclear statements in points 86 and 97 of the Decision, in which it is stated that the price initiatives concerned SBS cartonboard. 196. Contrary to the assertion made in point 4 of the Decision, SBS cartonboard is not covered by the terms 'GC‘ or 'FBB‘. Part of Iggesund Paperboard's production of SBS cartonboard is not even covered by the definition of the product concerned by the activities of the PG Paperboard, that is to say, according to point 28 of the Decision, cartonboard 'of 200 g/m2 and more‘. 197. Furthermore, the information given in the Decision concerning producers, purchasers and production volumes of SBS cartonboard is incorrect. There are European producers of SBS cartonboard other than Enso-Gutzeit and the applicant, and Enso-Gutzeit's production of SBS cartonboard was over-estimated. 198. The Commission submits that there is ample proof that the collusion related to SBS cartonboard, in particular in regard to some of the price increase initiatives. SBS cartonboard is produced by a small number of manufacturers and in much smaller quantities than the other cartonboard grades. That may explain the fact that it figured less in discussions at meetings of the PG Paperboard and that there is less documentary evidence concerning it. 199. SBS cartonboard was covered by a large part of the Fides information exchange system (appendix 5 to the statement of objections) and by the market studies made by the director general of Finnboard (the 'Kosk‘ studies, appendices 56 and 95 to the statement of objections). The Commission also refers to appendices 111, 113 and 117 to the statement of objections, which set out all the price increases for SBS cartonboard (or GZ board, an alternative designation of SBS cartonboard). 200. As regards the tables relating to the various price increase initiatives annexed to the Decision, some addressees of the Decision did not provide complete pricedocumentation (see point 118 of the Decision). In particular the undertakings' replies, and especially those of the applicant's subsidiaries, to requests for information were incomplete as regards the price increases. 201. In any event, the documentation on price increase announcements shows that for each of the initiatives the producers had agreed to increase prices on all the national markets. — Findings of the Court 202. It is apparent from the Decision that the Commission's claim that there was price collusion concerning SBS cartonboard is founded in particular on appendix 111 to the statement of objections (point 80 of the Decision), a price list in Swedish obtained at Rena, which contains information relating to price increases in nine Community countries for GC cartonboard (GC 1 and GC 2 grades) and SBS cartonboard (referred to as 'GZ‘, see point 4 of the Decision) implemented in September/October 1989. It is common ground that, in so far as information is available relating to that price increase, the particulars in the price list as to the level and date of price increases for SBS cartonboard are in conformity with the price increases actually implemented by the applicant. 203. At the hearing the applicant submitted that because the price list is undated, it does not have the probative value which the Commission attributes to it. 204. That submission must be understood in the sense that, in the applicant's view, it has not been proved that the information in the list relates to future price increase announcements. 205. However, the probative value of appendix 111 must be assessed in the light of the other documentary proof of collusion on prices. As the Commission explains in the Decision (points 79, 80 and 83), it obtained two other price lists drawn up in the same format and also in Swedish, namely a price list obtained at Finnboard (UK) Ltd (hereinafter 'the Finnboard list‘), and also appendix 110 to the statement of objections (obtained at Rena), which relate to the price increases implemented in April 1989 and April 1990 respectively. 206. In view of the striking similarities in the form of those three price lists, the Court finds that they have a common origin. Moreover, appendix 110 is dated 3 December 1989, a date prior to the price announcements to which it refers. As a result, the Commission was justified in inferring that the two other undated price lists had to be regarded as having been drawn up prior to the dates of the actual price increase announcements to which those lists refer. Lastly, the Court observes that Rena and Finnboard produce only GC cartonboard, whereas the three price lists refer to several other types of cartonboard. 207. On that basis, the Commission rightly considered that those three price lists, when taken in conjunction with the other evidence, constituted weighty evidence of price collusion in the bodies of the PG Paperboard, given that the applicant did not dispute such collusion except with regard to SBS cartonboard. Moreover, as the applicant is the only producer of SBS cartonboard which participated in the meetings of the PWG and of the JMC, the principal bodies of the cartel, the Court finds that the information on price increases of SBS cartonboard in appendix 111 to the statement of objections demonstrates its participation in collusion on prices in regard to both GC cartonboard and SBS cartonboard. 208. That finding is corroborated by appendix 113 to the statement of objections, a note dated 11 January 1990 obtained at FS-Karton, which, according to the Commission, relates to a JMC meeting (point 84 of the Decision). That document contains information on the dates of the price increase announcements for the GC and GD cartonboard of various producers (Kopparfors (of the Stora group), Mayr-Melnhof, Finnboard and Cascades). As regards the applicant, the note states as follows: 'Thames: 10 Tg Igges. 15/20 Tg‘ ('Tg‘ for 'Tage‘ indicates the number of days of order backlog) and 'Th/Ig KW5 GC/GZ +13,-‘ ('KW5‘ for 'Kalenderwoche 5‘ indicates that the price increase will have to be announced in the course of the fifth calendar week of the year). 209. Consistently with what is stated in that note, the applicant announced a price increase for its GC and SBS cartonboard of DM 13 per 100 kg on 31 January 1990 (documents F-12-5 and F-12-6). 210. The Commission therefore correctly considered that that document was proof of price collusion in regard to GC, GD and SBS cartonboard. 211. That conclusion is not undermined by the argument which the applicant made at the hearing, namely that it has not been proved that appendix 113 to the statement of objections related to a JMC meeting. The Court points out, first, that all the producers referred to in that document participated in the meetings of the PWG and of the JMC and, second, that there is no dispute that collusion on prices took place at meetings of those two bodies. In consequence, even if the Commission had not proved that appendix 113 to the statement of objections related to a JMC meeting, that document proves collusion on prices either in that body or in the PWG. 212. In the light of the foregoing, the Court considers that it has been proved that the applicant participated in price collusion in regard to SBS cartonboard and it is not necessary to consider the other evidence upon which the Commission relies. 213. It follows that the Commission has proved that the applicant, being an undertaking which attended meetings of the PWG from the date when that body was set up, participated in collusion on cartonboard prices from mid-1986 and in collusion on market shares and on downtime from the end of 1987. 214. Admittedly, as regards the latter two types of collusion, the Court has not examined which grades of cartonboard were involved. However, as the purpose of the two types of collusion was to ensure the success of the price initiatives and the applicant does not dispute that this was their purpose, it must be held that it participated in those two aspects of collusion also in regard to its production of SBS cartonboard, which was the subject of the collusion on prices. 215. Finally, in as much as the applicant submits that the reasoning of the Decision is inadequate and/or contains errors concerning SBS cartonboard, the Court finds that the Decision clearly states that the infringement found related to SBS cartonboard and clearly sets out the evidence on which that conclusion is based (see, in particular, points 3, 4, 80, 81, 85 and 97, and the tables on the price initiatives annexed to the Decision). Furthermore, it is clear from the first and second paragraphs of point 28 of the Decision that, although the activity of the PG Paperboard was officially defined as relating to cartonboard 'of 200 g/m2 and more‘, this was not an absolute threshold. 216. On the basis of the foregoing considerations, the second part of the plea must also be rejected. Third part: Commission's error of assessment in that it considered that SBS cartonboard was part of the same market as GC and GD cartonboard — Arguments of the parties 217. The applicant argues that SBS cartonboard is not part of the same product market as GC and GD cartonboard. 218. In the present case, it is necessary to define the relevant product market, because of the inferences made by the Commission in regard to the gravity of the infringement and its success on the market. Without a definition of the market, it is not possible to reach the conclusion in point 168 of the Decision that the cartel was largely successful in achieving its objectives. A definition of the market is all the more necessary as SBS cartonboard differs considerably from GC and GD cartonboard. 219. Moreover, according to points 168 and 169 of the Decision, when calculating the fines the Commission took into account the fact that the producers accounted for 'virtually the whole of the market‘ and the importance of the undertakings in 'the industry‘. No such assertions can be made, because the Commission denies that a definition of the market is relevant. 220. Nor were the characteristics of SBS cartonboard correctly assessed in points 3 and 4 of the Decision. SBS cartonboard is used principally for graphical purposes and not, as indicated in points 3 and 4 of the Decision, for packaging. There is a very limited use for the packaging of luxury items. 221. In view of their very different uses, SBS cartonboard does not compete with GC cartonboard. That is confirmed by the relationship between the prices of the different types of cartonboard, the prices of SBS cartonboard being considerably higher than those of GC and GD cartonboard. 222. Lastly, it is incorrect to include SBS cartonboard but at the same time to exclude products which are much more comparable to GC and GD cartonboard, such as greyboard and the cartonboard used for drinks packaging. 223. The Commission submits that there is no need for a definition of the product market in a case such as this, and that what is important is what the producers actually did. A definition of the relevant product market is not necessary in order to find that SBS cartonboard was the subject of the cartel. The Decision took account of the specific circumstances of the relevant market in other respects. 224. Lastly, it has no evidence of collusion in regard to greyboard. In those circumstances, the applicant's argument that greyboard is more comparable to GC and GD cartonboard than SBS cartonboard is irrelevant. — Findings of the Court 225. Article 85(1) of the Treaty prohibits 'all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition with the common market ...‘. 226. In the present case, the Commission has proved that the applicant participated from mid-1986 in collusion on prices and, from the end of 1987, in collusion on market shares and on downtime, that is to say, the three constituent elements of the infringement found in Article 1 of the Decision. As the Court has already held (see paragraphs 202 to 215 above), the Commission has proved that those three types of collusion concerned the three types of cartonboard defined in point 4 of the Decision, namely, GC, GD and SBS cartonboard. 227. Furthermore, the Commission concluded, and the applicant has not disputed, that the object of the abovementioned collusion was to restrict competition within the common market and that the collusion had affected trade between Member States (points 113 to 138 of the Decision). 228. In those circumstances the Commission could justifiably find that there was an infringement of Article 85(1) of the Treaty in regard to GC, GD and SBS cartonboard without first having defined the relevant product market (see, to the same effect, Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, at p. 342, and Case T-29/92 SPO and Others v Commission [1995] ECR II-289, paragraph 74). 229. Finally, as the Commission did not have any evidence of an infringement in regard to greyboard, it correctly took the view that the infringement had not involved that product. 230. The third part of the plea cannot therefore be upheld. 231. In the light of the foregoing, the whole of the plea must be rejected. The application for annulment of Article 2 of the Decision Arguments of the parties 232. The applicant argues that, in issuing the direction in Article 2 of the Decision, the Commission abused the powers conferred on it by Article 3 of Regulation No 17. Article 2 prohibits a very broad category of conduct for the future. Such a prohibition goes beyond what is necessary to bring the conduct in question into line with what is lawful. In particular, that article deprives it of the possibility of requesting and obtaining an exemption or negative clearance for a future information exchange system. 233. The exchange of information in aggregated form on production, sales, order backlog, order entries, production capacity and its utilisation were wrongly characterised as infringements of Article 85. The Commission should have taken the view that the addressees of the Decision had put an end to the infringement. They should therefore be able to exchange information as if they had not been held to have committed an infringement. 234. Furthermore, the Commission committed an error of law and infringed the rights of CEPI-Cartonboard and of the applicant by adopting the Decision without expressing a view on the compatibility with Article 85 of the system noted by CEPI-Cartonboard. 235. Lastly, Article 2 of the Decision is too imprecise, because any form of statisticalexchange, even in aggregated form, might be used to implement unlawful agreements. Moreover, the prohibition of any exchange 'of competitive significance‘ in fact covers any information. 236. The Commission states that in its judgments in the Polypropylene cases (in particular Case T-1/89 Rhône-Poulenc v Commission [1991] ECR II-867) and in Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, the Court upheld two directions similar to that in Article 2 of the Decision. 237. The scope of the directions made under Article 3 of Regulation No 17 must be determined by the unlawful conduct found to have been committed and the Commission must be in a position to forbid future conduct identical to that found in the Decision. The Commission considers that when it assesses how information might be used, it may also take account of the undertakings' past conduct. In that context, it sets out the findings it made in the Decision as regards the Fides information exchange system (points 61 to 71 and 134 of the Decision) and those concerning the first CEPI-Cartonboard information exchange system (points 105, 106 and 166 of the Decision). 238. A prohibition such as that in Article 2 of the Decision must necessarily be expressed in general terms, because it covers a range of future conduct. However, that does not mean that any exchange of information is prohibited or that there is no possibility of granting an exemption or negative clearance for a system notified to the Commission. Findings of the Court 239. It will be recalled that Article 2 of the Decision provides as follows: 'The undertakings named in Article 1 shall forthwith bring the said infringement to an end, if they have not already done so. They shall henceforth 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 production, sales, order backlog, machine utilisation rates, selling prices, costs or marketing plans of other individual producers; or (b) by which, even if no individual information is disclosed, a common industry response to economic conditions as regards price or the control of production is promoted, facilitated or encouraged; or (c) by which they might be able to monitor adherence to or compliance with any express or tacit agreement regarding prices or market sharing in the Community. Any scheme for the exchange of general information to which they subscribe, such as the Fides system or its successor, shall be so conducted as to exclude not only any information from which the behaviour of individual producers can be identified but also any data concerning the present state of the order inflow and backlog, the forecast utilisation rate of production capacity (in both cases, even if aggregated) or the production capacity of each machine. Any such exchange system shall be limited to the collection and dissemination in aggregated form of production and sales statistics which cannot be used to promote or facilitate common industry behaviour. The undertakings are also required to abstain from any exchange of information of competitive significance in addition to such permitted exchange and from any meetings or other contact in order to discuss the significance of the information exchanged or the possible or likely reaction of the industry or of individual producers to that information. A period of three months from the date of the communication of this Decision shall be allowed for the necessary modifications to be made to any system of information exchange.‘ 240. As is apparent from point 165 of the Decision, Article 2 was adopted in accordance with Article 3(1) of Regulation No 17. By virtue of that provision, where the Commission finds that there is an infringement, inter alia, of Article 85 of the Treaty, it may require the undertakings concerned to bring the infringement to an end. 241. It is settled law that Article 3(1) of Regulation No 17 may be applied so as to include an order directed at bringing an end to certain acts, practices or situations which have been found to be unlawful (Joined Cases 6/73 and 7/73 Istituto Chemicoterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, paragraph 45, Case C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743, paragraph 90), and also at prohibiting the adoption of similar conduct in the future (Tetra Pak v Commission, cited above, paragraph 220). 242. Moreover, since Article 3(1) of Regulation No 17 is to be applied according to the nature of the infringement found, the Commission has the power to specify the extent of the obligations on the undertakings concerned in order to bring an infringement to an end. Such obligations on the part of the undertakings may not, however, exceed what is appropriate and necessary to attain the objective sought, namely to restore compliance with the rules infringed (RTE and ITP v Commission, cited above, paragraph 93; to the same effect, see Case T-7/93 Langnese-Iglo v Commission [1995] ECR II-1533, paragraph 209, and Case T-9/93 Schöller v Commission [1995] ECR II-1611, paragraph 163). 243. As regards, first, the applicant's argument that the Commission committed an error of law in adopting Article 2 of the Decision without having first expressed its view on the compatibility with Article 85 of the information exchange system notified by CEPI-Cartonboard, the Court observes that the notification made by that association on 6 December 1993 related to a new information exchange system, separate from that considered by the Commission in the Decision. When adopting Article 2 of the contested decision, the Commission could not therefore assess the legality of the new system in the context of that decision. When it adopted Article 2, it was therefore entitled simply to examine and express a view on the old information exchange system. 244. In the present case, in order to verify whether, as the applicant claims, the scope of the direction in Article 2 of the Decision is too wide, it is necessary to consider the extent of the various prohibitions it places on the undertakings. 245. The prohibition in the second sentence of the first paragraph of Article 2, requiring the undertakings to refrain in future from any agreement or concerted practice which may have an effect which is the same as, or similar to, those of the infringements found in Article 1 of the Decision, is aimed solely at preventing the undertakings from repeating the behaviour found to be unlawful. Consequently, in adopting such directions, the Commission has not exceeded the powers conferred on it by Article 3 of Regulation No 17. 246. The provisions of subparagraphs (a), (b) and (c) of the first paragraph of Article 2 are directed more specifically at prohibiting future exchange of commercial information. 247. The direction in subparagraph (a) of the first paragraph of Article 2, which prohibits any future exchange of commercial information by which the participants directly or indirectly obtain individual information on competitors, presupposes a finding by the Commission in the Decision that an information exchange of such a nature is unlawful under Article 85(1) of the Treaty. 248. It should be noted that Article 1 of the Decision does not state that the exchange of individual commercial information in itself constitutes an infringement of Article 85(1) of the Treaty. 249. It states more generally that the undertakings infringed that article of the Treaty by participating in an agreement and concerted practice whereby the undertakings, inter alia, 'exchanged commercial information on deliveries, prices, plant standstills, order backlogs and machine utilisation rates in support of the above measures‘. 250. However, since the operative part of a decision must be interpreted in the light of the statement of reasons for it (Joined Cases 40/73 to 48/73, 50/73, 54/73, 55/73, 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 122), it should be noted that the second paragraph of point 134 of the Decision states: 'The exchanging by producers of normally confidential and sensitive individual commercial information in meetings of the PG Paperboard (mainly the JMC) on order backlog, machine closures and production rates was patently anti-competitive, being intended to ensure that the conditions for implementing agreed price initiatives were as propitious as possible. ...‘ 251. Consequently, as the Commission duly found in the Decision that the exchange of individual commercial information in itself constituted an infringement of Article 85(1) of the Treaty, the future prohibition of such an exchange of information satisfies the conditions for the application of Article 3(1) of Regulation No 17. 252. The prohibitions relating to the exchanges of commercial information referred to in subparagraphs (b) and (c) of the first paragraph of Article 2 of the Decision must be considered in the light of the second, third and fourth paragraphs of that article, which support what is expressed in those subparagraphs. It is in this context that it is necessary to determine whether, and if so to what extent, the Commission considered the exchanges in question to be illegal, since the extent of the obligations on the undertakings must be restricted to that which is necessary in order to bring their conduct into line with what is lawful under Article 85(1) of the Treaty. 253. The Decision must be interpreted as meaning that the Commission considered the Fides system to be contrary to Article 85(1) of the Treaty in that it underpinned the cartel (point 134, third paragraph, of the Decision). Such an interpretation is borne out by the wording of Article 1 of the Decision, from which it is apparent that the commercial information was exchanged between the undertakings 'in support of the ... measures‘ considered to be contrary to Article 85(1) of the Treaty. 254. The scope of the future prohibitions set out in subparagraphs (b) and (c) of the first paragraph of Article 2 of the Decision must be assessed in the light of that interpretation by the Commission of the compatibility, in the present case, of the Fides system with Article 85 of the Treaty. 255. In that regard, first, the prohibitions in question are not restricted to exchanges of individual commercial information, but relate also to certain aggregated statistical data (Article 2, first paragraph, (b), and second paragraph, of the Decision). Second, subparagraphs (b) and (c) of the first paragraph of Article 2 prohibit the exchange of certain statistical information in order to prevent the establishment of a possible support for future anti-competitive conduct. 256. Such a prohibition exceeds what is necessary in order to bring the conduct in question into line with what is lawful because it seeks to prevent the exchange of purely statistical information which is not in, or capable of being put into, the form of individual information on the ground that the information exchanged might be used for anti-competitive purposes. First, it is not apparent from the Decision that the Commission considered the exchange of statistical data to be in itself an infringement of Article 85(1) of the Treaty. Second, the mere fact that a system for the exchange of statistical information might be used for anti-competitive purposes does not make it contrary to Article 85(1) of the Treaty, since in such circumstances it is necessary to establish its actual anti-competitive effect. 257. Consequently, the first to fourth paragraphs of Article 2 of the Decision must be annulled, save and except as regards 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 henceforth 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 production, 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 subscribe, 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.‘ The application for annulment or reduction of the amount of the fine A — Infringement of the obligation to state reasons regarding the calculation of the fines Arguments of the parties 258. The applicant contends that the basis on which the fines were calculated should have been set out in the Decision. 259. The criteria set out in points 167 to 172 of the Decision do not contain an exhaustive statement of the grounds taken into consideration by the Commission for the purpose of fixing the amount of the fines. Although the Decision and the press release issued by the Commission do not contain any information in that regard, it is clear from the statements made at the press conference given by the Commissioner responsible for competition policy on 13 July 1994, the day on which the Decision was adopted, that the Commission applied a precise mathematical formula in order to determine the amount of the fines. The Commission istherefore wrong to assert that the information given at that press conference merely gave a 'broad notion‘ of the level of the fine. Where the Commission in fact applies such a mathematical formula, the addressees should be informed of it in the grounds of the Decision. 260. Moreover, the Decision contains no reasoning concerning the deterrent effect which, according to the Commission, justified the high amount of the fine. 261. Nor does it adequately demonstrate the link between the applicant's situation and the criteria adopted for the purpose of determining the amount of the fine. 262. Lastly, the Commission's failure to explain the basis for its calculation of the fines impaired the applicant's ability to defend itself. 263. The Commission submits that points 167 to 172 of the Decision contain an exhaustive and appropriate description of the criteria used to calculate the fines. Similar criteria were approved by the Court of First Instance in the Polypropylene cases (see in particular Rhône-Poulenc v Commission, cited above). 264. The Commission is not required to state the exact percentage of turnover which the fine represents. The disclosure of that figure would be undesirable, in particular because it might reveal confidential business information. Furthermore, although it chose the turnover of each undertaking as a reference point for calculating the fines, that does not mean that it used a precise mathematical formula. Moreover, the use of a mathematical formula might encourage undertakings to seek to calculate the risks associated with unlawful conduct. 265. As regards the deterrent effect of fines, that is one of their elementary functions and it is therefore unnecessary to point this out each time that a fine is imposed. Findings of the Court 266. It is settled law that the purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted (see, inter alia, Van Megen Sports v Commission, cited above, paragraph 51). 267. As regards a decision which, as in this case, imposes fines on several undertakings for infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements falls to be determined by reference to a number of 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 criteria to be applied has been drawn up (order of 25 March 1996 in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 54). 268. Furthermore, when fixing the amount of each fine, the Commission has a margin of discretion and cannot be considered obliged to apply a precise mathematical formula for that purpose (see, to the same effect, Case T-150/89 Martinelli v Commission [1995] ECR II-1165, paragraph 59). 269. In the Decision, the criteria taken into account in order to determine the general level of fines and the amount of individual fines are set out in points 168 and 169 respectively. Moreover, as regards the individual fines, the Commission explains in point 170 that the undertakings which participated in the meetings of the PWG were, in principle, regarded as 'ringleaders‘ of the cartel, whereas the other undertakings were regarded as 'ordinary members‘. Lastly, in points 171 and 172, it states that the amounts of fines imposed on Rena and Stora must be considerably reduced in order to take account of their active cooperation with the Commission, and that eight other undertakings were also to benefit from a reduction, to a lesser extent, owing to the fact that in their replies to the statement of objections they did not contest the essential factual allegations on which the Commission based its objections. 270. In its written pleas to the Court and in its reply to a written question put by the Court, the Commission explained that the fines were calculated on the basis of the turnover on the Community cartonboard market in 1990 of each undertaking addressed by the Decision. Fines of a basic level of 9 or 7.5% of that individual turnover were then imposed respectively on the undertakings considered to be the cartel 'ringleaders‘ and on the other undertakings. Finally, the Commission took into account any cooperation by undertakings during the procedure before it. Two undertakings received a reduction of two-thirds of the amount of their fines on that basis, while other undertakings received a reduction of one-third. 271. Moreover, it is apparent from a table produced by the Commission containing information as to the fixing of the amount of each individual fine that, although those fines were not determined by applying the abovementioned figures alone in a strictly mathematical way, those figures were, nevertheless, systematically taken into account for the purposes of calculating the fines. 272. However, the Decision does not state that the fines were calculated on the basis of the turnover of each undertaking on the Community cartonboard market in 1990. Furthermore, the basic rates of 9 and 7.5% applied to calculate the fines imposed on the undertakings considered to be 'ringleaders‘ and those considered to be 'ordinary members‘ do not appear in the Decision. Nor does it set out the rates of reduction granted to Rena and Stora, on the one hand, and to eight other undertakings, on the other. 273. In the present case, first, points 169 to 172 of the Decision, interpreted in the light of the detailed statement in the Decision of the allegations of fact against each of its addressees, contain a relevant and sufficient statement of the criteria taken into account in order to determine the gravity and duration of the infringement committed by each of the undertakings in question (see, to the same effect, Case T-2/89 Petrofina v Commission [1991] ECR II-1087, point 264). 274. Second, when assessing the gravity of an infringement for the purpose of fixing the amount of the fine, the Commission must ensure that its action has a deterrent effect, given that Community law imposes a duty on it to pursue a general policy designed to guide the conduct of undertakings in the light of the principles laid down by the Treaty (Musique Diffusion Française and Others v Commission, cited above, paragraphs 105 and 106). Accordingly, the deterrent character of its action is inherent in the exercise of its power to impose fines and the Commission was not obliged to refer specifically to that objective in the Decision. 275. Third, where, as in the present case, the amount of each fine is determined on the basis of the systematic application of certain precise figures, the indication in the decision of each of those factors would permit undertakings better to assess whether the Commission erred when fixing the amount of the individual fine and also whether the amount of each individual fine is justified by reference to the general criteria applied. In the present case, the indication in the Decision of the factors in question, namely the reference turnover, the reference year, the basic rates adopted, and the rates of reduction in the amount of fines would not have involved any implicit disclosure of the specific turnover of the addressee undertakings, a disclosure which might have constituted an infringement of Article 214 of the Treaty. As the Commission has itself stated, the final amount of each individual fine is not the result of a strictly mathematical application of those factors. 276. The Commission also accepted at the hearing that nothing prevented it from indicating in the Decision the factors which had been systematically taken into account and which had been divulged at a press conference held on the day on which that decision was adopted. In that regard, it is settled law that the reasons for a decision must appear in the actual body of the decision and that, save in exceptional circumstances, explanations given ex post facto cannot be taken into account (see Case T-61/89 Dansk Pelsdyravlerforening v Commission [1992] ECR II-1931, paragraph 131, and, to the same effect, Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraph 136). 277. Despite those findings, the reasons explaining the setting of the amount of fines stated in points 167 to 172 of the Decision are at least as detailed as those provided in the Commission's previous decisions on similar infringements. Although a plea alleging insufficient reasons concerns a matter of public interest, there had been no criticism by the Community judicature, at the moment when the Decision was adopted, as regards the Commission's practice concerning the statement of reasons for fines imposed. It was only in the judgment of 6 April 1995 in Case T-148/89 Tréfilunion v Commission [1995] ECR II-1063, paragraph 142, and in two other judgments given on the same day (Case T-147/89 Société Métallurgique de Normandie v Commission [1995] ECR II-1057, summary publication, and Case T-151/89 Société des Treillis et Panneaux Soudés v Commission [1995] ECR II-1191, summary publication) that the 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. 278. 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. 279. In the specific circumstances set out in paragraph 277 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 calculation of the fines should not, in the present case, be regarded as constituting an infringement of the duty to state reasons such as would justify annulment in whole or in part of the fines imposed. Finally, the applicant has not shown that it was prevented from properly asserting its rights of defence. 280. Consequently, this plea cannot be upheld. B — Error in assessing the LE report Arguments of the parties 281. The applicant disputes that the cartel was 'largely successful in achieving its objectives‘ (point 168, seventh indent, of the Decision). 282. The only evidence which the Commission has in regard to the effects of the price increase announcements on transaction prices is the LE report, which took into account all the factors liable to influence transaction prices in a competitive market, such as demand characteristics and production costs. The LE report concluded that the transaction prices did not differ from those which would have resulted from the free play of competition. 283. Despite the information in the LE report and that regarding the transaction prices of GC cartonboard produced by Iggesund Paperboard supplied by the applicant in its reply to the statement of objections, the Commission focused on the price increase announcements, without taking into account factors which explained the increases in transaction prices. 284. Moreover, the Commission did not sufficiently take into account individual negotiations with customers, as a result of which transaction prices were considerably lower than list prices. 285. The Commission is wrong in asserting that the announced prices constituted a market reference price (see point 21 of the Decision). In the present case, although there were discussions concerning the announced price increases, there was no collusion on transaction prices; the announced prices were merely part of the negotiation procedure whereby individual prices were fixed. Moreover, it is misleading to state, as the Commission does, that list prices were increased by an overall 42%. 286. As the producers did not succeed in imposing prices higher than those which would have resulted from market forces, the cartel must be regarded as generally unsuccessful, since the Commission considered that the sole objective of the other alleged forms of collusion was to ensure the success of the price initiatives. 287. The applicant states that the Decision contains errors in its description of the increase in transaction prices (see point 21 of the Decision). Thus, net transaction prices in domestic currencies for GC and GD grades increased by 30%, not by 33%, during the period concerned and the figure of 19% given for actual average price increases in ecus is also too high (see graph 11 in the LE report). 288. Furthermore, although the real per unit revenue increased by about twice as much as production costs during the period concerned, the Decision fails to note that they were modest increases and that during the same period demand increased by 16%. In addition, the operating margin referred to in point 16 of the Decision is insufficient to ensure a reasonable return on investment (see LE report, section 5). 289. The Commission observes that it is not obliged to show that a cartel had an effect on the market. Nevertheless, in the present case the cartel did actually have such an effect. 290. The LE report confirms that net transaction prices increased by about a third between 1988 and 1991. It is fanciful to allege that the concerted efforts of all the cartonboard producers in western Europe did not contribute to that result. Moreover, the author of the LE report expressly acknowledged at the hearing before the Commission that the changes in transaction prices had closely followed the price increase announcements, which proves the success of the cartel in that regard. 291. The fact that the agreement concerned announced prices and that the transaction prices were determined on the basis of negotiations between the producers and their customers cannot affect the conclusion that the cartel had an effect on transaction prices. The announced price constituted a reference price for the whole market and it is irrelevant that the larger customers received discounts or other special conditions. Findings of the Court 292. According to the seventh indent of point 168 of the Decision, the Commission determined the general level of fines by taking into account, inter alia, the fact that the cartel 'was largely successful in achieving its objectives‘. It is common ground that this consideration refers to the effects on the market of the infringement found in Article 1 of the Decision. 293. In order to review the Commission's appraisal of the effects of the infringement, the Court considers that it suffices to consider the appraisal of the effects of the collusion on prices. As the applicant itself emphasises, consideration of the effects of the collusion on prices makes it possible, in general terms, to assess the success of the cartel, because the purpose of collusion on downtime and on market shares was to ensure the success of the concerted price initiatives. 294. As regards collusion on prices, the Commission appraised the general effects of this collusion. Consequently, even assuming that the individual data supplied by the applicant in its reply to the statement of objections show, as it claims, that the effects of collusion on prices were, in its case, less significant than those found on the European cartonboard market taken as a whole, such individual data cannot in themselves suffice to call into question the Commission's assessment. 295. Likewise, the Commission cannot be criticised in those circumstances for not having considered specifically the effects of collusion on the prices for SBS cartonboard, as sales of that type of cartonboard made up less than 10% of total sales of the three types of cartonboard with which the Decision is concerned (see point 5, fifth paragraph, of the Decision). 296. As is apparent from the Decision and was confirmed by the Commission at the hearing, a distinction was drawn between three types of effects. Moreover, the Commission relied on the fact that the price initiatives were considered by the producers themselves to have been an overall success. 297. The first type of effect taken into account by the Commission, and not contested by the applicant, consisted in the fact that the agreed price increases were actually announced to customers. The new prices thus served as a reference point in individual negotiations on transaction prices with customers (see, inter alia, points 100 and 101, fifth and sixth paragraphs, of the Decision). The applicant contradicts itself in that regard in disputing that the announced prices constituted a reference price for the market while accepting that those prices were taken into account for the purpose of negotiating transaction prices with customers. 298. The second type of effect consisted in the fact that changes in transaction prices followed those in announced prices. The Commission states that 'the producers not only announced the agreed price increases but also with few exceptions took firm steps to ensure that they were imposed on the customers‘ (point 101, first paragraph, of the Decision). It accepts that customers sometimes obtained concessions in regard to the date of entry into force of the increases or rebates or individual reductions, particularly on large orders, and that 'the average net increase achieved after all discounts, rebates and other concessions would always be less than the full amount of the announced increase‘ (point 102, last paragraph, of the Decision). However, referring to graphs in the LE report, the Commission claims that during the period covered by the Decision there was 'a close linear relationship‘ between changes in announced prices and those in transaction prices expressed in national currencies or converted to ecus. It concludes from this is that: 'the net price increases achieved closely tracked the price announcements albeit with some time lag. The author of the report himself acknowledged during the oral hearing that this was the case for 1988 and 1989‘ (point 115, second paragraph, of the Decision). 299. When appraising this second type of effect the Commission could properly take the view that the existence of a linear relationship between changes in announced prices and changes in transaction prices was proof of an effect by the price initiatives on transaction prices in accordance with the objective pursued by the producers. There is, in fact, no dispute that on the relevant market the practice of holding individual negotiations with customers means that, in general, transaction prices are not identical to announced prices. It cannot therefore be expected that increases in transaction prices will be identical to announced price increases. 300. As regards the very existence of a relationship between announced price increases and transaction price increases, the Commission was right in referring to the LE report, which consists of an analysis of changes in the price of cartonboard during the period to which the Decision relates, based on information supplied by several producers, including the applicant itself. 301. However, that report only partially confirms, in temporal terms, the existence of a 'close linear relationship‘. Examination of the period 1987 to 1991 reveals three distinct sub-periods. At the oral hearing before the Commission the author of the LE report summarised his conclusion as follows: 'There is no close relationship, even with a lag, between announced price increase and market prices in the early part of the period, in 1987 through 1988. There is such a relationship in 1988/1989, and then the relationship breaks down and behaves rather oddly over the period 1990/1991‘ (transcript of the oral hearing, p. 28). He also observed that those temporal variations were closely linked to variations in demand (see, in particular, transcript of the oral hearing, p. 20). 302. Those conclusions expressed by the author at the hearing are in accordance with the analysis set out in his report, and in particular with the graphs comparing changes in announced prices and changes in transaction prices (LE report, graphs 10 and 11, p. 29). The Commission has therefore only partially proved the existence of the 'close linear relationship‘ on which it relies. 303. At the hearing the Commission stated that it had also taken into account a third type of effect of the price collusion, namely the fact that the level of transaction prices was higher than that which would have been achieved in the absence of any collusion. Pointing out that the dates and order of the price increase announcements had been planned by the PWG, the Commission takes the view in the Decision that 'it is inconceivable in such circumstances that the concerted price announcements had no effect upon actual price levels‘ (point 136, third paragraph, of the Decision). However, the LE report (section 3) drew up a model which enabled a forecast to be made of the price level resulting from objective market conditions. According to that report, the level of prices determined by objective economic factors in the period 1975 to 1991 would have evolved, with minor variations, in an identical manner to the level of transaction prices applied, including those during the period covered by the Decision. 304. Despite those conclusions, the analysis in the report does not justify a finding that the concerted price initiatives did not enable the producers to achieve a level of transaction prices above that which would have resulted from the free play of competition. As the Commission pointed out at the hearing, it is possible that the factors taken into account in that analysis were influenced by the existence of collusion. So, the Commission rightly argued that the collusive conduct might, for example, have limited the incentive for undertakings to reduce their costs. However, the Commission has not argued that there is a direct error in the analysis in the LE report nor submitted its own economic analysis of the hypothetical changes in transaction prices had there been no collusion. In those circumstances, its assertion that the level of transaction prices would have been lower if there had been no collusion between the producers cannot be upheld. 305. It follows that the existence of that third type of effect of collusion on prices has not been proved. 306. The above findings are in no way altered by the producers' subjective appraisal, on which the Commission relied in reaching the view that the cartel was largely successful in achieving its objectives. In that regard, the Commission referred to a list of documents which it produced at the hearing. However, even supposing that it could base its appraisal of the success of the price initiatives on documents showing the subjective opinions of certain producers, it must be observed that several undertakings, including the applicant, rightly referred at the hearing to a number of other documents in the file showing the problems encountered by the producers in implementing the agreed price increases. In those circumstances, the Commission's reference to the statements of the producers themselves is insufficient for a conclusion that the cartel was largely successful in achieving its objectives. 307. Having regard to the foregoing considerations, the effects of the infringement described by the Commission are only partially proved. The Court will consider the implications of that conclusion as part of its exercise of its unlimited powers in regard to fines, when it assesses the seriousness of the infringement found in the present case (see paragraph 358 below). 308. Finally, the errors which, according to the applicant (see paragraphs 287 and 288 above), are to be found in the grounds of the Decision cannot affect the above conclusions, even if it were proven that such errors had been made. Consequently, there is no purpose in considering whether the applicant's arguments in that regard are well founded. C — Error in assessing the gravity of the infringement 309. This plea is in two parts, each of which will be considered separately. The first part: error of assessment of the form and objectives of the alleged cartel Arguments of the parties 310. The applicant contends that the Commission wrongly took the view that the alleged cartel was the most serious on which it had had to impose penalties. 311. It disputes the assertion that the JMC's terms of reference included the fixing of equivalent prices for certain major customers (see point 44 of the Decision). 312. It also disputes that the object of price collusion was to achieve a system of equivalent prices in Europe. As Stora has stated, the reduction in price differences between the national markets was the result of market conditions. 313. Furthermore, contrary to the allegations made in the Decision, the main function of the PG Paperboard was not to organise the market. The PG Paperboard exercised many perfectly legitimate functions. 314. The Commission observes that it found that the cartel had not only put into operation a sophisticated system of concerted price increases but also incorporated an agreement on the freezing of market shares and on the control of production. 315. It states that the characteristics which the applicant claims were not found in the present case are misleading or peripheral. In any event, the alleged errors are insignificant or do not exist and are hardly of such a nature as to alter the assessment of the gravity of the infringement. 316. Lastly, the applicant's argument that there was no attempt to fix uniform prices in Europe is a pure assertion and contrary to the evidence. Findings of the Court 317. The applicant's line of argument is unclear but must be understood as meaning that the infringement attributed to it is not as serious as the Commission claims, because some elements of that infringement have not been proved. It claims thatthis justifies a reduction in the amount of the fine. 318. The Commission rightly considered that the applicant had infringed Article 85(1) of the Treaty by participating from mid-1986 until at least April 1991 in an agreement and concerted practice originating in mid-1986 which consisted of several separate constituent elements. In that regard, the Commission found that the applicant had participated in collusion on prices, downtime and market shares. 319. It is apparent from the first indent of point 168 of the Decision that the Commission determined the general level of fines by taking into account, inter alia, the consideration that 'collusion on pricing and market sharing are by their very nature serious restrictions on competition‘. 320. The Court finds that the applicant's arguments in support of this part of the plea are not such as to mitigate the gravity of the infringements already found and, in consequence, to justify a reduction in the fine. Those arguments are in any event unfounded. 321. First, the argument that the PG Paperboard exercised legitimate functions is irrelevant, because it has been found that constituent bodies of that trade association, particularly the PWG and the JMC, had an essentially anti-competitive purpose. 322. Second, the assertion that the object of the JMC did not include the fixing of equivalent prices for the major customers is refuted by Stora's statements (appendix 39 to the statement of objections, point 14). Furthermore, the applicant does not dispute that, as is asserted in the Decision (points 80 and 87), appendices 117 and 118 to the statement of objections relate to JMC meetings. Those two documents contain information regarding the prices to be applied to various categories of customers according to their size. 323. Lastly, since it does not dispute that the effect of the price increases agreed in the PG Paperboard was to reduce the initial differences between the prices applied on the various national markets, the applicant cannot argue that the object of the collusion on prices was not to establish a system of equivalent prices in Europe. 324. Having regard to the foregoing, the first part of the plea must be rejected. Second part: error of assessment as regards the existence of a single infringement Arguments of the parties 325. The applicant disputes that all the elements to which objections have been raised can constitute one single infringement. Certain links have not been proved. Others have not been described in sufficiently clear terms in the statement of objections. Some others are illogical. Lastly, some allegations should have no effect on the fine imposed. 326. The allegations relating to SBS and to the 1987 price increase announcements in the United Kingdom should not have appeared in the Decision. 327. According to the Decision, national meetings whose object was to implement the price increases decided in the PG Paperboard took place regularly in Germany, France and the United Kingdom. However, the Decision contains no other evidence of the applicant's participation in the meetings in Germany or France, no link between the national meetings and the PG Paperboard is demonstrated and the evidence relating to the meetings of the PAA (see points 94 et seq. of the Decision) and those of the Association of Cartonboard Manufacturers ('ACBM‘, see points 98 and 99 of the Decision) in the United Kingdom was misinterpreted. Moreover, the Decision is silent in regard to the meetings held in Scandinavia. The Commission's erroneous findings concerning the national meetings thus influenced the amount of the fine, because point 168 of the Decision stated that the existence of 'regular institutionalised meetings‘ was one of the factors taken into consideration in order to determine the general level of fines. 328. Furthermore, the Commission's claim that the meetings of the PAA and of the ACBM and the activities of the PG Paperboard were part of the same general infringement are the result of its application of the doctrine of 'common purpose‘ (see in particular Shell v Commission, cited above). However, that doctrine is applicable only in cases where some evidence is missing but the Commission's allegations are otherwise based on cogent evidence. 329. The Commission observes that the applicant seems merely to be contesting the existence of the necessary links between the various elements of the single infringement in regard to some national meetings in some countries. In reply to the applicant's arguments that the allegations relating to SBS and the 1987 United Kingdom price increase should not have been included in the Decision, the Commission refers to its arguments concerning the inclusion of SBS in the Decision and adds that the link between the abovementioned price increase and the PG Paperboard is shown by the note referred to in point 75 of the Decision (appendix 62 to the statement of objections). 330. As regards the national meetings concerning the implementation of the price initiatives, there is sufficient evidence to show that such meetings took place in Germany, France, the United Kingdom and Scandinavia. Those meetings formed part of the structure of the cartel and should therefore be regarded as an extension of it. 331. However, even if there were no evidence of the applicant's participation in meetings in Germany or France, the assessment of the gravity of the cartel would be fundamentally the same. In that regard, the Commission refers to the criteria set out in point 168 of the Decision, which concern in essence the actual substance of the infringement. 332. As regards the arguments relating to the 'common purpose‘ doctrine, the Commission refers to point 116 of the Decision, which explains the approach it adopted. Findings of the Court 333. As regards, first of all, the submission that the 'links‘ are not described with sufficient precision (paragraph 325 above), the Court points out that under Article 44(1) of the Rules of Procedure the application must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must, accordingly, specify the nature of the grounds on which it is based, so that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (Case T-102/92 Viho v Commission [1995] ECR II-17, paragraph 68). Similar requirements are called for where a submission is made in support of a plea in law. 334. In this case, the submission in question is worded too imprecisely to enable the Court to identify its substance. This submission must therefore be rejected as inadmissible. 335. The applicant's argument to the effect that the allegations relating to SBS and the January 1987 price announcements in the United Kingdom should not have been included in the Decision must be rejected. It suffices to point out that the Commission correctly considered that SBS cartonboard was the subject of the cartel (paragraph 228 above) and that the duration of the infringement attributed to the applicant was duly established (paragraph 173 et seq. above). 336. The argument, first, that there is no evidence of the existence of national meetings relating to the implementation of decisions adopted in the committees of the PG Paperboard and, second, that there is no evidence of links between those meetings and the activities of the PG Paperboard, cannot lead to the annulment of Article 1 of the Decision. The Commission rightly considered that the applicant had infringed Article 85(1) of the Treaty by participating, as a member of the PWG, in collusion on prices, downtime and market shares. 337. It follows that the applicant's argument can result only in a reduction in the fine. 338. The Court must therefore assess whether the Commission took those national meetings into account when it assessed the gravity of the infringement committed. 339. According to the fifth indent of point 168 of the Decision, the Commission took into account, inter alia, the fact that 'the cartel [had been] operated in the form of a system of regular institutionalised meetings which set out to regulate in explicit detail the market for cartonboard in the Community‘. 340. That consideration relates, in effect, to the meetings of the bodies of the PG Paperboard. 341. According to the second and third paragraphs of point 91 of the Decision: 'It is not known whether, besides national meetings to prepare for the Economic Committee ..., there was also an institutionalised system throughout Europe of regular local meetings in each country to implement the increases previously agreed for each Community national market. This was, however, certainly the case in several important national markets [namely the German, French and United Kingdom markets].‘ 342. In those circumstances, the Court finds that the fact that the national meetings were an extension of the collusion between the members of the PG Paperboard in several Member States could not materially affect the assessment of the gravity of the infringement. 343. It follows that the second part of the plea must be rejected. 344. The plea must therefore be rejected in its entirety. D — The plea that the level of the fine is disproportionate Arguments of the parties 345. The applicant states that the Member of the Commission responsible for competition policy stated at his press conference on 13 July 1994 that the fines were close to the ceiling fixed by Article 15(2) of Regulation No 17. However, neither the gravity of the alleged infringement nor its duration justified such a high level. 346. The Commission has already discovered more serious infringements than that in the present case. A comparison between the Decision and the decision with which the judgment in Tetra Pak v Commission, cited above, was concerned shows that the infringement found in that case was more serious and of a longer duration. 347. Furthermore, the Commission has already been faced with infringements of a considerably longer duration than that found in the Decision and, contrary to the submissions in its defence, the Commission cannot take into account the fact that the infringement was intended to be of indefinite duration. The Commission's approach is incompatible with Article 15(2) of Regulation No 17 because regard may be had only to the actual duration of the infringements found. 348. Moreover, the Decision does not state the reasons for which the level of the fine was increased in relation to those in the Commission's previous decisions. It must therefore be concluded that the criteria set out in the Decision cannot justify the level of the fine. 349. The Commission observes that the fine imposed on the applicant represents approximately 9% of its turnover in the Community cartonboard sector in 1990. The applicant has not produced any evidence that the fine approaches 10% of its total turnover, the maximum level fixed by Article 15(2) of Regulation No 17. The Commission stated that the infringement was a particularly serious one, but never claimed that it was the most serious infringement ever discovered. Lastly, the Commission may at any moment increase the general level of fines in order to ensure their deterrent effect. 350. The Commission never stated that it had increased the general level of fines, the fine imposed on the applicant not being significantly higher than the level of fines imposed on the ringleaders in Commission Decision 86/398/EEC of 23 April 1986 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.149 — Polypropylene, OJ 1986 L 230, p. 1, hereinafter 'the Polypropylene decision‘). In any event, it is not necessary to indicate in the Decision that there has been any increase in the general level of fines. 351. Finally, as regards the duration of the infringement, the rapid discovery of an infringement such as the infringement found in the present case does not make it inherently less serious. That does not mean that the Commission imposed a fine in respect of a period following the Decision (see point 167 of the Decision). Finding of the Court 352. Under Article 15(2) of Regulation No 17, the Commission may by decision impose on undertakings fines ranging from ECU 1 000 to 1 000 000, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently, they infringe Article 85(1) of the Treaty. In fixing the amount of the fine, regard is to be had to both the gravity and the duration of theinfringement. As has already been observed, according to the case-law of the Court of Justice the gravity of infringements falls to be determined by reference to a number of 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). 353. In the present case, the Commission determined the general level of fines by taking into account the duration of the infringement (point 167 of the Decision) and the following considerations (point 168): '— collusion on pricing and market sharing are by their very nature serious restrictions on competition, — the cartel covered virtually the whole territory of the Community, — the Community market for cartonboard is an important industrial sector worth some ECU 2 500 million each year, — the undertakings participating in the infringement account for virtually the whole of the market, — the cartel was operated in the form of a system of regular institutionalised meetings which set out to regulate in explicit detail the market for cartonboard in the Community, — elaborate steps were taken to conceal the true nature and extent of the collusion (absence of any official minutes or documentation for the PWG and JMC; discouraging the taking of notes; stage-managing the timing and order in which price increases were announced so as to be able to claim they were ”following”, etc.), — the cartel was largely successful in achieving its objectives‘. 354. Furthermore, it is common ground that the fines of a basic level of 9 or 7.5% of the turnover on the Community cartonboard market in 1990 of each undertaking addressed by the Decision were imposed on the undertakings regarded as the 'ringleaders‘ of the cartel and on its 'ordinary members‘ respectively. 355. It should be pointed out, first, that when assessing the general level of fines the Commission is entitled to take account of the fact that clear infringements of the Community competition rules are still relatively frequent and that, accordingly, it may raise the level of fines in order to strengthen their deterrent effect. Consequently, the fact that in the past the Commission applied fines of a certain level to certain types of infringement does not mean that it is estopped from raising that level, within the limits set out in Regulation No 17, if that is necessary in order to ensure the implementation of Community competition policy (see, inter alia, Musique Diffusion Française and Others v Commission, cited above, paragraphs 105 to 108, and Case T-13/89 ICI v Commission [1992] ECR II-1021, paragraph 385). 356. Second, the Commission rightly argues that, on account of the specific circumstances of the present case, no direct comparison could be made between the general level of fines adopted in the present decision and those adopted in the Commission's previous decisions, in particular in the Polypropylene decision, which the Commission itself considered to be the most similar to the decision in the present case. Unlike in the case of the Polypropylene decision, no general mitigating circumstance was taken into account in the present case when determining the general level of fines. Moreover, the adoption of measures to conceal the existence of the collusion shows that the undertakings concerned were fully aware of the illegality of their conduct. Accordingly, the Commission was entitled to take those measures into account when assessing the gravity of the infringement, since they constituted a particularly serious aspect of it which differentiated it from infringements previously found by the Commission. 357. Third, the Court notes the lengthy duration and obviousness of the infringement of Article 85(1) of the Treaty which was committed despite the warning which the Commission's previous decisions, in particular the Polypropylene decision, should have provided. There is no basis for concluding that in order to determine the level of the fines the Commission, contrary to the indications given in point 167 of the Decision, took into account a lengthier duration of the infringement than that stated in Article 1 of the Decision. 358. On the basis of those factors, the criteria set out in point 168 of the Decision justify the general level of fines set by the Commission. Admittedly, the Court has already held that the effects of the collusion on prices, which the Commission took into account when determining the general level of fines, are proved only in part. However, in the light of the foregoing considerations, that conclusion cannot materially affect the assessment of the gravity of the infringement found. The fact that the undertakings actually announced the agreed price increases and that the prices so announced served as a basis for fixing individual transaction prices suffices in itself for a finding that the collusion on prices had both as its object and effect a serious restriction of competition. Accordingly, in the exercise of its unlimited jurisdiction, the Court considers that the findings relating to the effects of the infringement do not justify any reduction in the general level of fines set by the Commission. 359. Finally, in setting the general level of fines in the present case, the Commission did not so depart from its previous line of decisions as to oblige it to give a more detailed account of the reasons for its assessment of the gravity of the infringement (see, inter alia, Case 73/74 Groupement des Fabricants de Papiers Peints de Belgique and Others v Commission [1975] ECR 1491, paragraph 31). 360. Consequently, this plea must be rejected. E — Erroneous assessment of the role played by Iggesund Paperboard Arguments of the parties 361. The applicant contends, first, that it was wrongly characterised as a 'ringleader‘ of the cartel. Representatives of Iggesund Paperboard participated in only some meetings of the bodies of the PG Paperboard and they never acted as chairman of those bodies. 362. Iggesund Paperboard did not take part in any PWG meeting before the end of November 1989. It is thus for the Commission to prove that Iggesunds Bruk or TBM participated before that date. Furthermore, no representative of Iggesund Paperboard attended the PWG meetings of 6 February 1990, 12 April 1991, 27 May 1991 or 5 June 1991. That company therefore took part in only five of the nine meetings of the PWG held from November 1989 onwards. 363. Stora's statements that TBM participated in meetings of the PWG right from the creation of that body are not reliable. In breach of the principles of fairness and proportionality, the Commission therefore failed to take due account of the fact that Iggesund Paperboard had participated only occasionally in PWG meetings from November 1989 onwards. 364. As regards the JMC, contrary to what is stated in table 4 annexed to the Decision, Iggesund Paperboard did not participate in the meetings of 6 and 7 September 1989. 365. As regards Iggesunds Bruk, that mill principally produced SBS cartonboard, its production of high-quality GC cartonboard having always been of less importance for it. That explains the fact that it was never more than an occasional participant in meetings of the committees of the PG Paperboard and that it was not a member of the PG Paperboard after 1985. Before November 1988, except for general assemblies of the PG Paperboard, Iggesunds Bruk participated in only nine out of 20 meetings of the PC and four out of 18 meetings of the Economic Committee. 366. Second, there is no basis for alleging that downtime taken by the applicant was the result of collusion. Iggesunds Bruk's mill closed routinely in autumn for technical reasons. In 1990, however, the routine shut-down was deferred, because Iggesunds Bruk was producing record volumes during the last third of 1990 and the first third of 1991. As regards the Workington mill, downtime took place only when orders were limited. 367. The Commission states that it was the participants in the PWG meetings which were considered to be the cartel 'ringleaders‘. The question whether Iggesund Paperboard's representative was one of the officers of the committees is therefore irrelevant. TBM and, later, Iggesund Paperboard participated in meetings of all the committees of the PG Paperboard, including the PWG. Consequently, the applicant's arguments relating to Iggesunds Bruk's role prior to 1988 are irrelevant. 368. As to the applicant's assertions relating to downtime in respect of SBS cartonboard, they are irrelevant, because the Commission never asserted that there was a downtime system specifically for SBS cartonboard. Moreover, demand for SBS cartonboard was strong throughout the period in question and there was therefore no need to stop production of that product. 369. Lastly, the argument that downtime was taken at the Workington mill only when orders were low is unconvincing, since downtime is necessary only in such circumstances. Findings of the Court 370. It is apparent from the Court's ruling on the applicant's pleas in support of its application for annulment of the Decision that the nature of the PWG's functions, as described in the Decision, has been proved by the Commission. 371. In those circumstances the Commission rightly concluded that the undertakings which participated in the meetings of that body should be regarded as the 'ringleaders‘ of the infringement found and that they should accordingly bear special responsibility (see point 170, first paragraph, of the Decision). 372. In the present case, it is not disputed that Iggesund Paperboard participated in the meetings of the PWG with effect from November 1989. In that regard, the applicant's argument that Iggesund Paperboard was only an occasional participant in PWG meetings must be rejected. It is apparent from table 2 annexed to the Decision that Iggesund Paperboard took part in five of the seven meetings held during the period from November 1989 until April 1991, the date on which the Commission carried out simultaneous investigations without prior notice at the premises of several undertakings and trade associations in the cartonboard sector pursuant to Article 14(3) of Regulation No 17. 373. As regards the period from mid-1987 until November 1989, Stora states: 'One other producer was represented at the PWG: the UK Workington mill was represented at the PWG from when it was set up. The Workington mill has been bought by Iggesund/MoDo‘ (appendix 37 to the statement of objections, p. 2). Moreover, in a reply by Iggesund Paperboard (Workington) Ltd of 20 August 1991 to a request for information it is stated (page 12) in regard to the participation in PWG meetings of TBM/Iggesund Paperboard (Workington) Ltd: 'It is assumed that Mr P.L. Herring attended some or all such meetings.‘ 374. In those circumstances, since Iggesund Paperboard (Workington) Ltd itself assumed in its reply that Mr Herring had participated in the PWG meetings on behalf of TBM/Iggesund Paperboard (Workington) Ltd, the Commission rightly relied on Stora's statements that the Workington mill had been represented in the PWG from the date on which it was set up. 375. The Court has already held that the Commission was entitled to address the Decision to the applicant in regard to the infringements of Iggesund Paperboard, Iggesund Paperboard (Workington) Ltd and TBM. The applicant, as a participant in meetings of the PWG throughout the period of the infringement, was therefore correctly regarded as one of the 'ringleaders‘ of the infringement. In that context, it is irrelevant that, for its part, Iggesunds Bruk did not participate in the PWG meetings. 376. Lastly, it has been proved that the applicant participated in collusion on downtime and that it even took actual downtime in the Workington mill when, with effect from 1990, production capacity increased and demand fell (paragraphs 145 to 147 above). The applicant's argument that downtime was not taken at Iggesunds Bruk's mill because demand for SBS cartonboard was strong throughout the period covered by the Decision must be rejected. The Commission never contended that collusion on downtime implied that the undertakings participating in that collusion had to take downtime when demand was strong. 377. In the light of the foregoing, the plea cannot be upheld. F — Breach of the principle of equal treatment Arguments of the parties 378. This plea is in two parts. 379. In the first part the applicant asserts that the fine imposed on it is excessive in comparison with those imposed on undertakings which did not contest the essential factual allegations. The distinction drawn between those two groups of undertakings is unclear, because it is not based on any rule or policy previously declared by the Commission. 380. A mere failure to contest the Commission's allegations does not justify the distinction so made, as such conduct does not constitute cooperation within the meaning of the case-law. By contrast, notwithstanding any failure by someundertakings to contest allegations, it is for the Commission to prove its allegations of fact in all cases. Even an express admission by some undertakings cannot be used to prove the allegations against undertakings which do not admit them. The undertakings to which the statement of objections is addressed should be able to reply to the Commission's allegations in it, without the risk of their being penalised for that conduct by an increase in their fine (or by a smaller reduction in it). 381. The distinction drawn by the Commission therefore infringes the rights of the defence, the principle of fairness, the principle of due process and the presumption of innocence. 382. Even supposing that the Commission was entitled to impose a larger fine on the applicant than on the undertakings which did not contest the essential factual allegations, the 50% increase in the fine imposed on it is excessive and disproportionate. In ICI v Commission, cited above, the Court of First Instance held, in the exercise of its unlimited jurisdiction, that a reduction of about 20% in the fine was reasonable in the case of an undertaking which had fully cooperated with the Commission. 383. In the second part of the plea the applicant contends that the fine imposed on it is excessive in comparison with the fines imposed on the undertakings held to have actively assisted the Commission (Rena and Stora). Its fine, in terms of percentage of turnover, is three times higher than those imposed on Rena and Stora. That difference is excessive and discriminatory. 384. The Decision does not contain an adequate statement of reasons for that substantial reduction in the fines (see point 172 of the Decision). Furthermore, according to the judgment in ICI v Commission, cited above, active cooperation justifies only a small difference in treatment. 385. The reductions awarded to Rena and Stora can also be regarded as an abuse of power, because all the undertakings were not necessarily in possession of appropriate information so as to be able to provide active assistance to the Commission. 386. Moreover, it is questionable whether the Commission is entitled to obtain information in return for a reduction in the fine. In the present case, the Commission, speaking through the Member of the Commission responsible for competition policy, acknowledged that it could not have established the existence of the cartel without the information provided by Stora. Consequently, if undertakings receive a financial incentive to provide information to the Commission in circumstances in which the Commission cannot require them to provide it (see Case 374/87 Orkem v Commission [1989] ECR 3283 and Case 27/88 Solvay v Commission [1989] ECR 3355, summary publication), it cannot be ruled out that, in order to obtain the maximum financial advantage, some undertakings may be over-enthusiastic in their admissions, thereby undermining the credibility of their statements. 387. Lastly, Stora's cooperation was not spontaneous, since it cooperated only after the investigations had been carried out pursuant to Article 14 of Regulation No 17 and it had received the Commission's written questions concerning the PG Paperboard. 388. In reply to the first part of the plea the Commission states that the recognition by certain undertakings of the essential elements of the allegations against them made its task easier and should therefore be regarded as a form of cooperation justifying a reduction in the fine (ICI v Commission, cited above, paragraph 393). 389. Contrary to its assertion, the applicant was not penalised for a lack of cooperation. It was the undertakings which actually acknowledged the infringements which in fact benefited from a reduction of one-third in the amount of the fine. There is no basis for considering that the reductions were too large. In any event, if the Court were to consider that the reduction given to some undertakings was too large, it could, in the exercise of its unlimited jurisdiction, increase the fines in question. 390. Lastly, the applicant's arguments that there was discrimination against undertakings which did not possess documents is without foundation. 391. As regards the second part of the plea, the Commission considers that its attitude towards Rena and Stora was fully justified. 392. Stora in particular spontaneously provided a detailed account of the operation of the cartel. The applicant's assertion that undertakings might be tempted to exaggerate the unlawful conduct of their competitors in order to obtain significant reductions is unfounded. Although the Commission must closely scrutinise evidence supplied by members of a cartel, that does not mean that it may not take frank and complete cooperation into account. Findings of the Court 393. As regards the first part of the plea, the Court observes that in the administrative procedure before the Commission the applicant acknowledged that it had participated in collusion on price increase announcements concerning GC cartonboard but that it otherwise disputed that it had participated in the alleged infringement. 394. 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). 395. 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 Commission'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 acknowledgement of the factual allegations and thus proves that those allegations are correct. Such conduct may therefore justify a reduction in the fine. 396. The situation is different where an undertaking does not reply to the statement of objections, merely states that it is not expressing any view on the factual allegations made by the Commission in that document, or, as the applicant did, contests the essential points of those allegations in its reply. 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. 397. 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 undertakings 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. It should be added in that context that, by reducing by one-third the fines imposed on those undertakings, the Commission did not overstep the limits of its discretion when determining the amount of fines. 398. Even if the Commission applied an unlawful criterion by reducing the fines imposed on undertakings which had not expressly stated that they were not contesting 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, the first part of the plea cannot be upheld. 399. As regards the second part of the plea, the Court observes that Rena and Stora received a two-thirds reduction in their fines on account of their active cooperation with the Commission during the administrative procedure (see, in that regard, point 171 of the Decision). In pointing out the active cooperation of those undertakings during the administrative procedure, the Decision adequately explains the reasons for the award of a substantial reduction in the fine imposed on those two undertakings. 400. The Court points out that the applicant could itself have obtained a reduction in the fine by demonstrating its active cooperation with the Commission. As its participation in the infringement has been proved, its argument that it did not have the necessary information to provide active assistance to the Commission cannot but be rejected. 401. Inasmuch as the applicant contends that the fine imposed is excessive in comparison with that imposed on Stora, the Court points out that Stora supplied the Commission with statements containing a highly detailed description of the nature and object of the infringement, the operation of the various 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 statements, it would therefore have been, at the very least, much more difficult for the Commission to establish or to put an end to the infringement with which the Decision is concerned. 402. In those circumstances, and even though Stora cooperated only after the Commission had initiated investigations at the undertakings pursuant to Article 14(3) of Regulation No 17, 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. 403. As regards the reduction in Rena's fine, it suffices to hold that the applicant has not disputed the statement in the second paragraph of point 171 of the Decision that Rena 'provided important documentary evidence to the Commission on a voluntary basis‘. 404. Lastly, the applicant has not adduced any evidence in support of its assertion that the reductions in the fines received by Rena and Stora constitute an abuse of power. 405. The fine imposed on the applicant cannot therefore be regarded as disproportionate in comparison with those imposed on Rena and Stora. 406. Consequently, the second part of the plea cannot be accepted either. 407. The plea must therefore be rejected. G — The plea alleging that the applicant cooperated and that other mitigating circumstances exist Arguments of the parties 408. The applicant claims that it cooperated with the Commission in its investigation. 409. That cooperation is shown by the fact that (a) Iggesund Paperboard stayed away from meetings of the PG Paperboard's committees after the Commission had carried out its investigations; (b) in its reply to the statement of objections the applicant did not contest the essential facts; (c) it acknowledged the existence of discussions on the price announcements; and (d) the undertakings in the MoDo group have implemented a compliance programme in order to ensure observance of the competition rules. 410. Moreover, the applicant furnished detailed information concerning the participation of undertakings from its group in meetings of the PG Paperboard's committees, even though the Commission had not made any reference to the provisions of Regulation No 17 in its requests. 411. In those circumstances, since the applicant did not dispute the documents relating to prices referred to in the statement of objections, it should be placed in the same category as the undertakings which did not contest the essential allegations of fact. 412. Lastly, to impose a fine at a level never previously imposed is unjustified because the cartonboard sector has never been the subject of a Commission investigation and the applicant itself has never previously committed an infringement. 413. The Commission disputes that the applicant can be considered to have cooperated. In particular, since the applicant continues to contest almost all of the Commission's findings, it cannot claim to have admitted the essential factual allegations. Moreover, its reticence in replying to requests for information did not demonstrate a willingness to cooperate. Findings of the Court 414. The Court has already held that in its reply to the statement of objections the applicant contested the essential allegations of fact on which the Commission had based the objections against it and that its reply cannot therefore be considered toconstitute cooperation with the Commission which would justify a reduction in the amount of its fine. 415. Even if, without a request by the Commission to that effect under Regulation No 17, the applicant had supplied information concerning the undertakings in its group which had participated in meetings of bodies of the PG Paperboard, such conduct could not be considered to justify a reduction in the fine either. The applicant contested the Commission's essential allegations relating to the anti-competitive discussions held at the meetings in question. 416. As regards the compliance programme implemented by the MoDo group after the cessation of the infringement, the Court has already pointed out that the gravity of the infringement falls to be determined by reference to a number of 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). 417. Consequently, although the implementation of a compliance programme demonstrates the intention of the undertaking in question to prevent future infringements and thus better enables the Commission to accomplish its task of applying the principles laid down by the Treaty in competition matters and of influencing undertakings in that direction, the mere fact that in certain of its previous decisions the Commission took the implementation of a compliance programme into consideration as a mitigating factor does not mean that it is obliged to act in the same manner in this case. 418. The Commission was therefore entitled to take the view that in the present case it should treat as mitigation only conduct of the undertakings which enabled it to prove the infringement in question more easily. Consequently, since the essential allegations of fact on which the Commission relied as against the applicant were contested by the applicant during the administrative procedure, the Commission cannot be criticised for not having reduced the amount of the fine imposed on it. 419. Moreover, while it is important that the applicant should take steps to prevent fresh infringements of Community competition law from being committed in the future by members of its staff, that circumstance does not alter the the fact that an infringement has been found to have been committed in this case (Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 357). 420. In those circumstances, when determining the amount of the fine imposed on the applicant, the Commission rightly also took no account of the fact that the applicant did not attend meetings of the PG Paperboard's committees after the Commission carried out its investigations under Article 14(3) of Regulation No 17. 421. Lastly, the Court holds that the fact that the Commission has already found an undertaking guilty of infringing the competition rules in the past and has penalised it for that infringement may be treated as an aggravating factor as against that undertaking but that the absence of any previous infringement is a normal circumstance which the Commission 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 II-1833, paragraph 317). 422. It follows that the plea must be rejected. H — Infringement of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 423. In its application the applicant observes, under the heading 'Closing submissions‘, that the application of Community competition law in relation to proceedings leading to the imposition of fines is of such a nature as to make it subject to Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('the ECHR‘) (or analogous principles of Community law), which require that charges of this nature be determined by an independent and impartial tribunal. 424. It submits that, as the relevant tribunal, the Court of First Instance should therefore make a full examination of the facts and all the legal aspects of the case. It follows that 'the Court should come to its own, independent view on the facts of the case‘ or, at least, that it 'should be quick rather than reluctant‘ to form its own independent view of the appropriate penalty. 425. At the hearing the applicant submitted that its submissions as so presented constituted a plea in law. 426. However, as the Court has already observed, in order to satisfy the requirements of Article 44(1) of the Rules of Procedure the application must specify the nature of the grounds on which the action is based, so that a mere abstract statement of those grounds is insufficient (paragraph 333 above). In the present case, the submissions concerning Article 6(1) of the ECHR made by the applicant in its application are so unspecific that the Court is not able to evaluate them. The plea must therefore be rejected as inadmissible. 427. As none of the pleas relied on in support of the application for annulment or reduction of the fine has been upheld, the fine imposed on the applicant should not be reduced. 428. Having regard to all the foregoing, the plea of illegality of Article 2 of the Decision must be upheld in part and the remainder of the application must be dismissed. Costs 429. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the applicant has been largely unsuccessful, it must be ordered to pay the costs, as sought by the Commission. 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 for 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 henceforth 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 production, 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 subscribe, 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. Dismisses the application as regards the remaining claims; 3. Orders the applicant to pay the costs. Vesterdorf Briët Lindh Potocki Cooke Delivered in open court in Luxembourg on 14 May 1998. H. Jung B. Vesterdorf Registrar President Summary Facts II - 2 Procedure II - 6 Forms of order sought II - 7 The application for annulment of the Decision II - 8 A — The pleas alleging infringements of essential procedural requirements II - 8 The plea that the statement of reasons is defective II - 8 Arguments of the parties II - 8 Findings of the Court II - 9 The plea grounded upon infringement of the rights of the defence II - 11 Arguments of the parties II - 11 Findings of the Court II - 11 B — The pleas grounded on the infringement of substantive rules II - 13 The plea that the applicant was not the correct addressee of the Decision II - 13 Admissibility of the plea II - 13 Substance II - 14 — Arguments of the parties II - 14 — Findings of the Court II - 15 The plea that the Commission has not proved the existence of collusion on volume control and limitation of production II - 17 The first two parts of the plea: no proof of the existence of collusion aimed at freezing market shares and controlling supply II - 17 — Arguments of the parties II - 17 — Findings of the Court II - 19 The third part of the plea: error in assessing the significance of the Fides statistics II - 24 — Arguments of the parties II - 24 — Findings of the Court II - 25 The plea that the duration of the cartel was incorrectly assessed II - 27 Arguments of the parties II - 27 Findings of the Court II - 28 The plea that the Commission committed an error of assessment in considering that SBS cartonboard was the subject of the infringement and formed part of the same market as GC and GD cartonboard and that there are defects in reasoning and procedural defects in that regard II - 29 First part: infringement of the rights of the defence II - 29 Second part: Commission's error of assessment in that it considered that SBS cartonboard was the subject of the infringement, and an inadequate statement of reasons in that regard II - 30 — Arguments of the parties II - 30 — Findings of the Court II - 31 Third part: Commission's error of assessment in that it considered that SBS cartonboard was part of the same market as GC and GD cartonboard II - 34 — Arguments of the parties II - 34 — Findings of the Court II - 35 The application for annulment of Article 2 of the Decision II - 36 Arguments of the parties II - 36 Findings of the Court II - 37 The application for annulment or reduction of the amount of the fine II - 41 A — Infringement of the obligation to state reasons regarding the calculation of the fines II - 41 Arguments of the parties II - 41 Findings of the Court II - 42 B — Error in assessing the LE report II - 45 Arguments of the parties II - 45 Findings of the Court II - 46 C — Error in assessing the gravity of the infringement II - 50 The first part: error of assessment of the form and objectives of the alleged cartel II - 50 Arguments of the parties II - 50 Findings of the Court II - 50 Second part: error of assessment as regards the existence of a single infringement II - 51 Arguments of the parties II - 51 Findings of the Court II - 53 D — The plea that the level of the fine is disproportionate II - 54 Arguments of the parties II - 54 Finding of the Court II - 55 E — Erroneous assessment of the role played by Iggesund Paperboard II - 58 Arguments of the parties II - 58 Findings of the Court II - 59 F — Breach of the principle of equal treatment II - 60 Arguments of the parties II - 60 Findings of the Court II - 62 G — The plea alleging that the applicant cooperated and that other mitigating circumstances exist II - 64 Arguments of the parties II - 65 Findings of the Court II - 65 H — Infringement of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 II - 67 Costs II - 67 1: Language of the case: English. ECR