Judgment — ECLI:EU:T:2000:77
Date: 2000-03-15
Language of the case: Danish;German;Greek;English;French;Italian;Dutch;Portuguese;Spanish
Court formation: Fourth 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;Costs;Restriction of competition;Effect on trade between Member States;Decision of the Commission;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Hearing of persons concerned and of third parties / Access to the file;General
Procedure: Action for annulment;Appeal against penalty
Origin: Belgium;Germany;Denmark;Spain;France;United Kingdom;Greece;Ireland;Italy;Luxembourg;Netherlands;Portugal;Sweden

Summary The facts § 1 Procedure § 23 Forms of order sought § 30 The claim for annulment of the decision of 23 September 1993 inasmuch as it terminatedthe international part of the proceeding initiated against 12 German undertakings andsix Spanish undertakings § 77 The claim for annulment of the contested decision § 85 I - The pleas alleging various infringements of essential procedural requirementsduring the administrative procedure § 85 The first plea: infringement of the rights of the defence and of the principle ofequal treatment in that the whole of the SO and the documents relatingthereto were not accessible during the administrative procedure § 87 A - Preliminary observations § 88 B - The notification of part of the SO § 104 1. The inseparability of the SO and the applicants' right of access to thewhole of it § 105 2. The existence of an inseparable link between the national andinternational agreements and concerted practices and theapplicants' right of access to the whole of the SO § 110 3. Infringement of the principle of equal treatment § 122 C - Inaccessibility of some parts of the SO and of some documents in theinvestigation file which might have contained exculpatory evidence § 124 1. Organisation of access to the file during the administrativeprocedure § 127 1.1 Irregularities in the organisation of access to the file in regard toaccessible documents § 128 1.2 Organisation of access to the file was irregular because theapplicants did not have access to certain documents § 140 2. The various measures of organisation of procedure ordered by theCourt § 158 2.1 Preliminary observations § 158 2.2 The various measures ordered § 163 2.3. The conditions under which the Commission was to perform themeasures of organisation of procedure § 173 2.3.1. The measure of 19 January to 2 February 1996 § 174 2.3.2. The measure of 2 October 1996 § 176 2.3.3. The measure of 18 and 19 June 1997 § 185 2.3.4. Interim findings § 210 2.3.5. Special circumstances which impaired the effectiveness of themeasures of 2 October 1996 and 18 and 19 June 1997 § 212 3. Analytical framework for assessing an argument alleginginfringement of the rights of the defence because of theinaccessibility of allegedly exculpatory evidence during theadministrative procedure § 237 4. Application of the principles to the present case § 249 5. General arguments relating to infringement of the rights of defenceduring the administrative procedure § 267 6. Conclusions § 280 D - The use in the contested decision of incriminating documents notdisclosed to the applicants during the administrative procedure or notidentified in the SO § 281 1. Preliminary observations § 281 2. Documents neither cited nor mentioned in the contested decision § 286 3. Documents mentioned in the contested decision to describe a fact orconduct, but not used to make a finding of an infringement § 288 4. Documents supporting the finding of an infringement in thecontested decision but not relating to infringements attributed tothe applicants relying on those documents § 304 5. Documents used in the contested decision in the context of aninfringement attributed to the applicant who is relying on them § 318 6. Conclusions § 379 E - The failure to send to the applicants documents which were not in theinvestigation file § 380 1. Preliminary observations § 380 2. Replies to the SO by other addressees § 384 2.1 Use of replies to the SO as incriminating evidence § 386 2.2 Exculpatory evidence which might have been contained in thereplies to the SO § 404 3. Records of the hearings relating to the national agreements andconcerted practices § 408 4. The Commission's file on the notification of the Belgian-DutchBasing point system § 411 5. The Commission's file on State aid granted by the HellenicRepublic and on the inter-governmental agreement betweenGreece and the United Kingdom § 416 6. Internal notes of the Commission not included in the investigationfile § 418 7. The Commission's statements in defence § 430 8. Conclusions § 435 The second, third and fourth pleas: infringements of the rights of the defence, of theprinciple of equal treatment and of Article 190 of the Treaty as a result of theCommission's abandonment of the national objections and, as against someundertakings, of the international objections § 436 A - The dropping of the national objections § 438 B - The abandonment of the international objections as against someundertakings § 461 The fifth plea: procedural irregularity by the Commission in dropping someinternational objections as against Irish Cement § 472 The sixth plea: infringement of the rights of the defence resulting from theincomplete and imprecise nature of the SO § 475 A - Preliminary observations § 475 B - The allegedly incomplete nature of the SO § 477 1. The alleged failure by the Commission to state in the SO that itintended to fine trade associations § 478 2. The method of dealing with the CBS agreement § 489 3. The alleged failure to explain the Commission's territorialjurisdiction § 494 4. The alleged failure to analyse the market and to precisely definethe relevant markets § 497 C - The alleged lack of precision in the SO as to the participation of certainapplicants in various objections raised in the SO § 504 1. Participation of the applicants concerned in the infringementconstituted by the Cembureau agreement and the duration of thatinfringement § 506 1.1. Participation in the infringement referred to in Article 1 of thecontested decision § 510 1.1.1. Addressees of the SO which are members of Cembureau § 511 1.1.2. Addressees which are not direct members of Cembureau orregarded in the SO as not being direct members § 516 1.1.2.1. Addressees of the SO, not direct members of Cembureau,which are alleged to have participated in bilateral or multilateralagreements and concerted practices § 518 1.1.2.2. Addressees of the SO, not direct members of Cembureau,which are alleged to have participated in the activities of theECEC § 528 1.1.2.3. Addressees of the SO, not direct members of Cembureau,which are alleged to have participated in the activities of theEPC § 537 1.1.3. Interim conclusions § 542 1.2. Membership of a national association that was a direct member ofCembureau as a criterion for attributing responsibility for theinfringement referred to in Article 1 of the contested decision § 544 1.3. Duration of participation in the infringement referred to inArticle 1 of the contested decision § 569 1.4. Conclusions § 581 2. Precision of the SO as regards applicants' participation in theexchanges of information on prices and the duration of thatinfringement § 582 3. Precision of the SO as regards applicants' participation in thebilateral and multilateral agreements referred to in Article 3 of thecontested decision § 585 4. Precision of the SO as regards applicants' participation in thesetting-up of the ETF and in the measures adopted in theframework thereof, referred to in Article 4 of the contesteddecision, and as regards the duration of those infringements § 594 5. Precision of the SO as regards the applicants' participation in theconcerted practices in the framework of the export committeesreferred to in Articles 5 and 6 of the contested decision, and asregards the duration of those infringements § 615 The seventh plea: infringements of the rights of the defence and of Article 3 ofRegulation No 1 resulting from the failure to translate certain documents § 627 The eighth plea: infringement of the rights of the defence resulting frommistranslation and misquotation of certain documents § 647 The ninth plea: infringements of the rights of the defence and of Article 11(1)of Regulation No 99/63 as a result of the inadequate period for replying tothe SO § 652 The 10th plea: infringements of the rights of the defence, of Article 19(1) ofRegulation No 17 and of Article 7(1), Article 8(1) and Article 9 ofRegulation No 99/63 resulting from the defective organisation of thehearings § 657 A - Preliminary remarks § 657 B - The first part: infringement of the rights of the defence and ofArticle 19(1) of Regulation No 17 and Article 7(1) of Regulation No99/63 § 659 1. The Hearing Officer's programme for the hearings § 662 2. Alleged irregularities during the hearings concerning theinternational objections § 664 3. Alleged irregularities at the hearings concerning the nationalobjections § 675 4. Other irregularities during the hearings § 682 C - Second part: infringement of Article 8(1) of Regulation No 99/63 § 691 D - Third part: infringement of Article 9 of Regulation No 99/63 § 696 The 11th plea: breach of the principle of ex officio investigation § 702 The 12th plea: the rights of the defence were infringed by the excessive length ofthe administrative procedure § 706 The 13th plea: infringement of Article 6 of the ECHR § 712 The 14th plea: breach of the principle of presumption of innocence § 725 The 15th plea: infringement of the right of the parties not to give evidenceagainst themselves § 731 The 16th plea: infringement of Article 10 of Regulation No 17 in that there wasno proper consultation of the Advisory Committee § 740 The 17th, 18th, 19th and 20th pleas: infringement of the principle of subsidiarity,the principle of sound administration, the principle of legal certainty and theprinciple of legitimate expectations during the administrative procedure § 751 The 21st plea: infringement of the principle of collegiate responsibility when thecontested decision was adopted § 758 The 22nd plea: improper authentication and notification of the contesteddecision § 762 II The plea alleging misuse of powers § 776 III - Pleas alleging infringements of Articles 85(1) and 190 of the Treaty, theprinciple of equal treatment and the rights of the defence in that the Commissionfound in Article 1 of the contested decision that there had been an agreementcontrary to Article 85(1) of the Treaty and that the various applicants concernedhad participated in it § 782 Preliminary observations § 782 The infringement referred to in Article 1 of the contested decision § 785 Definition of the relevant market § 825 A - The relevant product market § 827 B - The relevant geographical market § 832 C - Infringement of Article 190 of the Treaty § 836 Consistency between the SO and the contested decision § 852 The existence of the Cembureau agreement § 861 A - Infringement of Article 85(1) of the Treaty § 862 1. Documents referred to in recital 18 of the contested decision § 872 1.1. Internal Blue Circle memoranda § 875 1.2. Statement by Mr Kalogeropoulos at the Heracles Board Meetingheld on 25 June 1986 § 902 1.3. Admission by Cembureau § 914 1.4. Conclusions § 920 2. Conclusion of the Cembureau agreement at the Head Delegatesmeeting held on 14 January 1983 and confirmation of thatagreement at the Head Delegates meetings held on 19 March and7 November 1984 § 921 2.1. The competence of the Head Delegates to conclude the Cembureauagreement § 923 2.2. Conclusion of the Cembureau agreement at the Head Delegatesmeeting held on 14 January 1983 § 929 2.1 Letter convening the Head Delegates meeting on 14 January 1983 § 930 2.2.2. Amendments to the agenda for the Head Delegates meeting heldon 14 January 1983. § 942 2.2.3. Content of the documents relating to the conduct of the HeadDelegates meeting on 14 January 1983 § 955 2.2.4. Conclusions regarding the Head Delegates meeting on 14 January1983 § 1003 2.3. Confirmation of the Cembureau agreement at the meeting of HeadDelegates on 19 March 1984 § 1004 2.4. Confirmation of the Cembureau agreement at the meeting of HeadDelegates on 7 November 1984 § 1028 2.5. Failure to take other Head Delegates meetings into consideration § 1047 2.6. General arguments relating to the evidential value of the documentsreferred to in recitals 18 and 19 of the contested decision § 1050 2.7. Documents subsequent to the Head Delegates meetings showingthat the Cembureau agreement was not concluded at the meetingheld on 14 January 1983 or confirmed at the meetings held on 19March and 7 November 1984 § 1061 2.8. Characterisation as an agreement within the meaning of Article85(1) of the Treaty § 1071 2.9. Object and nature of the Cembureau agreement § 1079 3. The Cembureau agreement as an infringement of the Treaty:restriction of competition and effects on trade between MemberStates § 1085 4. Conclusions § 1095 B - Infringement of Article 190 of the Treaty § 1096 C - Breach of the rights of the defence when access was given to the file § 1110 1. Incriminating evidence § 1111 2. Exculpatory evidence § 1113 2.1. Arguments raised by several applicants § 1114 2.2. Case T-25/95 CBR v Commission § 1133 2.3. Case T-26/95 Cembureau v Commission § 1143 2.4. Case T-30/95 FIC v Commission § 1152 2.5. Cases T-31/95 ENCI v Commission and T-32/95 VNC vCommission § 1167 2.6. Case T-35/95 Dyckerhoff v Commission § 1171 2.7. Case T-36/95 SFIC v Commission § 1181 2.8. Case T-37/95 Vicat v Commission § 1190 2.9. Case T-39/95 Ciments Français v Commission § 1196 2.10. Case T-42/95 Heidelberger v Commission § 1198 2.11. Case T-43/95 Lafarge v Commission § 1204 2.12. Case T-44/95 Aalborg v Commission § 1209 2.13. Case T-48/95 BDZ v Commission § 1218 2.14. Case T-50/95 Unicem v Commission § 1220 2.15. Case T-51/95 Buzzi v Commission § 1226 2.16. Case T-57/95 Heracles v Commission § 1228 2.17. Cases T-53/95 Rugby v Commission, T-56/95 Castle v Commission,T-70/95 Aker v Commission and T-71/95 EUROC v Commission § 1238 2.18. Case T-60/95 Irish Cement v Commission § 1243 2.19. Cases T-61/95 Cimpor v Commission, T-62/95 SECIL vCommission and T-63/95 ATIC v Commission § 1252 2.20. Case T-65/95 Italcementi v Commission § 1256 2.21. Case T-68/95 Holderbank v Commission § 1268 2.22. Case T-69/95 Hornos Ibéricos v Commission § 1272 2.23. Case T-87/95 Cementir v Commission § 1277 2.24. Case T-88/95 Blue Circle v Commission § 1285 3. Conclusions § 1295 The applicants' participation in the Cembureau agreement § 1296 A - Preliminary observations § 1296 B - Membership of a national association that is a member of Cembureauas a criterion for attributing liability for the infringement referred to inArticle 1 of the contested decision § 1307 C - Power of Head Delegates and associations of undertakings to concludethe Cembureau agreement § 1312 D - The finding that both undertakings and associations were responsible forthe same infringement § 1322 E - Participation of Cembureau and its direct members in the infringementreferred to in Article 1 of the contested decision § 1331 1. Proof of participation of Cembureau and its direct members in theinfringement referred to in Article 1 of the contested decision § 1332 1.1. Succession of certain direct members of Cembureau § 1334 1.2. Applicants which participated in one or more meetings of the HeadDelegates § 1342 1.2.1. Participation in the meetings of the Head Delegates at which theCembureau agreement was concluded and then confirmed § 1342 1.2.2. The parties' claims to have distanced themselves and othercircumstances relied on in order to contest their participation inthe Cembureau agreement § 1354 1.2.3. Alleged inadmissibility of certain documents against directmembers of Cembureau § 1396 1.2.4. Conclusions regarding the participation of Cembureau and itsdirect members, other than Unicem, in the infringement referredto in Article 1 of the contested decision § 1400 1.3. Situation of Unicem, a direct member of Cembureau which did notparticipate in any of the Head Delegates meetings § 1404 2. Infringement of the principle of equal treatment § 1418 3. Infringement of Article 190 of the Treaty § 1423 4. Infringement of the rights of the defence when access was granted tothe file § 1429 4.1. Incriminating evidence § 1429 4.2. Exculpatory evidence § 1432 4.2.1. Case T-26/95 Cembureau v Commission § 1433 4.2.2. Case T-87/95 Cementir v Commission § 1435 F - Participation of Unicem, of the indirect members of Cembureau and ofBuzzi in the infringement referred to in Article 1 of the contesteddecision § 1439 G - Conclusions § 1449 IV - Pleas alleging infringements of Articles 85(1) and 190 of the Treaty, of theprinciple of equal treatment and of the rights of the defence inasmuch as theCommission finds that there were two infringements of Article 85(1) of theTreaty concerning exchanges of price information at Cembureau level and that the various parties participated in them (contested decision, Article 2(1) and(2)) § 1450 Preliminary observations § 1450 Agreements on the exchange of price information at Cembureau meetings(Article 2(1) of the contested decision) § 1458 A - Consistency between the SO and the contested decision § 1460 B - The existence of agreements on exchanges of price information duringthe Cembureau Head Delegates and Executive Committee meetings § 1467 1. Cembureau Head Delegates meetings. § 1470 2. Cembureau Executive Committee meetings. § 1478 C - The unlawful nature of the exchanges of price information which tookplace at the Head Delegates meetings on 14 January 1983 and on 19March 1984 § 1501 D - The participation of the applicants in the infringement referred to inArticle 2(1) of the contested decision § 1538 Concerted practices involving the periodic exchanges of price information(Article 2(2)(a) and (b) of the contested decision) § 1576 A - Consistency between the SO and the contested decision § 1579 B - Identification of the information referred to in Article 2(2)(b) of thecontested decision § 1607 C - The unlawful nature of the periodic exchanges of price information § 1620 D - The participation of the applicants in the infringement referred to inArticle 2(2) of the contested decision § 1683 E - The duration of the infringement referred to in Article 2(2) of thecontested decision § 1738 Access to the file § 1756 Conclusions § 1817 V - The pleas alleging infringements of Article 85(1) of the Treaty and of the rightsof the defence in that the Commission finds the existence of three Franco-Italianconcerted practices which infringed Article 85(1) of the Treaty and that theapplicants in question participated in them (Article 3(1)(a), (b) and (c) of thecontested decision) § 1819 Introduction § 1819 Concerted practice between Lafarge and Buzzi found in Article 3(1)(a) of thecontested decision § 1829 A - Introduction § 1829 B - Correspondence between the Statement of Objections (SO) and thecontested decision § 1831 C - The existence of an anti-competitive concerted practice between Lafargeand Buzzi with regard to the sharing of the south of France market § 1836 D - Duration of the infringement § 1869 Concerted practice between Ciments Français and Buzzi found in Article 3(1)(b)of the contested decision § 1877 A - Introduction § 1877 B - Whether there was an anti-competitive concerted practice betweenCiments Français and Buzzi § 1878 C - Duration of the infringement § 1917 Concerted practice between Vicat and Buzzi found in Article 3(1)(c) of thecontested decision § 1922 A - Introduction § 1922 B - Existence of an anti-competitive concerted practice between Vicat andBuzzi § 1924 C - The duration of the infringement § 1960 Access to the file § 1971 A - Case T-37/95 Vicat v Commission § 1973 B - Case T-39/95 Ciments Français v Commission § 1992 C - Case T-51/95 Buzzi v Commission § 1999 Conclusions § 2034 VI - Pleas alleging infringements of Article 85(1) of the Treaty, the principle ofequal treatment and rights of the defence in that the Commission found thatthere was a Hispano-Portuguese agreement which infringed Article 85(1)of theTreaty and that various applicants participated in it (contested decision, Article3(2)) § 2036 Introduction § 2036 Infringement referred to in Article 3(2) of the contested decision § 2041 A - The Commission's analysis § 2041 B - Agreement between Oficemen, Cimpor and SECIL on the monitoringof cement movements between Spain and Portugal and onnon-transhipment to their respective home markets § 2053 1. Conclusion of the agreement § 2054 2. Implementation of the agreement § 2067 2.1 Meetings held between Oficemen, Cimpor and SECIL § 2070 2.2 Cimpor's refusal to sell § 2083 2.3. Conclusions § 2092 3. Specific circumstances ruling out the existence of an agreement § 2093 4. SECIL's special position § 2107 5. Conclusion § 2111 C - Unlawful nature of the applicants' conduct § 2112 D - Duration of the infringement § 2124 Breach of the principle of equal treatment § 2133 Infringement of the rights of the defence when access to the file was granted § 2136 A - Incriminating documents § 2136 B - Exculpatory documents § 2137 1. Case T-59/95 Oficemen v Commission § 2140 2. Cases T-61/95 Cimpor v Commission, and T-62/95 SECIL vCommission § 2142 Conclusion § 2165 VII - Pleas alleging infringements of Articles 85(1) and 190 of the Treaty, theprinciple of equal treatment and the rights of the defence in that the Commissionfinds that there was a Franco-German agreement and concerted practice contraryto Article 85(1) of the Treaty and that various applicants participated therein(contested decision, Article 3(3)(a)) § 2166 Preliminary observations § 2166 Agreement to share the Saarland market § 2172 Concerted practices between various French and German producers andassociations between 1982 and 1984 § 2226 A - Talks between SFIC and BDZ § 2236 B - Pressure exerted on Cedest by SFIC and the other French producersconcerned § 2252 C - Concerted action between Cedest, Dyckerhoff and Heidelberger § 2282 D - Concerted action between Lafarge and Dyckerhoff § 2295 E - Concerted action by Dyckerhoff and Ciments Français § 2316 General regulation of cement supplies between France and Germany § 2331 A - Conclusion of an agreement in 1984 § 2336 B - Pursuit of the agreement after 1986 § 2390 Duration of the participation of certain parties in the infringement referred toin Article 3(3)(a) § 2421 Access to the file § 2444 Conclusion § 2469 VIII - Pleas alleging infringements of Article 85(1) of the Treaty and of the rightsof the defence in that the Commission finds the existence of a concerted practicebetween SFIC and BDZ contrary to Article 85(1) of the Treaty (contesteddecision, Article 3(3)(b)) § 2471 Concerted practice between SFIC and BDZ § 2471 Access to the file § 2493 IX - Pleas alleging infringement of Articles 85(1) and 190 of the Treaty, of theprinciple of equal treatment, of the rights of the defence, and abuse of processand misuse of powers in that the Commission finds that there were agreementsand concerted practices within the framework of the ETF contrary to Article85(1) of the Treaty and that the various applicants participated in them(contested decision, Article 4(1), (2), (3)(a) and (b) and (4)(a) to (h)) § 2504 Preliminary observations § 2504 The agreement relating to the setting-up of the ETF (contested decision, Article4(1)) § 2513 A - Consistency between the SO and the contested decision § 2518 B - Unlawful nature of the agreement setting up the ETF § 2530 C - Participation, in the agreement setting up the ETF, of the applicantsnamed in Article 4(1) of the contested decision § 2592 1. Preliminary observations § 2592 2. CBR § 2596 3. Cembureau § 2607 4. Dyckerhoff § 2614 5. SFIC § 2621 6. Ciments Français § 2626 7. Heidelberger § 2633 8. Lafarge § 2648 9. Aalborg § 2651 10. BDZ § 2661 11. Unicem § 2674 12. Asland § 2684 13. Uniland § 2692 14. Oficemen § 2705 15. Irish Cement § 2726 16. Italcementi § 2745 17. Aker and EUROC § 2755 18. Cementir § 2767 D - Duration of the infringement found in Article 4(1) of the contesteddecision § 2783 E - Access to the file § 2816 1. Preliminary observations § 2816 2. Case T-26/95 Cembureau v Commission § 2818 3. Case T-35/95 Dyckerhoff v Commission § 2822 4. Case T-36/95 SFIC v Commission § 2851 5. Case T-35/95 Ciments Français v Commission § 2858 6. Case T-42/95 Heidelberger v Commission § 2867 7. Case T-43/95 Lafarge v Commission § 2870 8. Case T-44/95 Aalborg v Commission § 2888 9. Case T-48/95 BDZ v Commission § 2899 10. Case T-50/95 Unicem v Commission § 2902 11. Case T-55/95 Asland v Commission § 2911 12. Case T-58/95 Uniland v Commission and Case T-59/95 Oficemen vCommission § 2917 13. Case T-60/95 Irish Cement v Commission § 2928 14. Case T-65/95 Italcementi v Commission § 2938 15. Case T-68/95 Holderbank v Commission § 2949 16. Case T-70/95 Aker v Commission and Case T-71/95 EUROC vCommission § 2958 17. Case T-88/95 Blue Circle v Commission § 2962 Agreement on the setting-up of the Joint Trading Company, Interciment (Article4(2) of the contested decision) § 2968 A - Introduction § 2968 B - The unlawful nature of the setting-up of Interciment § 2973 C - The participation in the agreement setting up Interciment of theapplicants referred to in Article 4(2) of the contested decision § 2997 1. Preliminary observations § 2997 2. CBR, Dyckerhoff, Lafarge, Italcementi, Aker and EUROC § 2999 3. SFIC, BDZ and Oficemen § 3022 4. Ciments Français § 3033 5. Heidelberger § 3039 6. Unicem § 3047 7. Asland § 3057 8. Uniland § 3066 9. Cementir § 3076 D - The duration of the infringement found in Article 4(2) of the contesteddecision § 3081 E - Access to the file § 3105 Measures to defend the Italian market (contested decision, Article 4(3)) § 3133 A - Concerted practices designed to withdraw Calcestruzzi from the Greekproducers, and from Titan in particular (contested decision, Article4(3)(a)). § 3135 1. Existence of concerted practices § 3138 2. The applicants' participation in the concerted practices § 3190 2.1. CBR, Dyckerhoff, Aalborg, Uniland and Irish Cement § 3193 2.2. Ciments Français § 3208 2.3. Heidelberger § 3216 2.4. Lafarge § 3224 2.5. BDZ and Oficemen § 3234 2.6. Unicem § 3245 2.7. Asland § 3254 2.8. Italcementi § 3264 2.9. Holderbank § 3271 2.10. Aker and EUROC § 3276 2.11. Cementir § 3283 2.12. Blue Circle § 3291 3. The duration of the infringement § 3301 4. Access to the file § 3311 B - Agreement concerning the contracts and agreements signed in April1987 with Calcestruzzi (contested decision, Article 4(3)(b)) § 3343 1. Existence of the infringement § 3345 2. Access to the file § 3387 Measures intended to deflect the Greek production surplus and to curb importsof cement from Greece into the Member States (contested decision,Article 4(4)) § 3397 A - Concerted practice referred to in Article 4(4)(a) of the contesteddecision § 3402 B - Agreements and concerted practice referred to in Article 4(4)(b) to (h)of the contested decision § 3437 1. Agreement between Blue Circle and Titan referred to inArticle 4(4)(b) of the contested decision § 3451 2. Agreement between Holderbank and Titan referred to inArticle 4(4)(c) of the contested decision § 3515 3. Agreement between Holderbank and Heracles referred to inArticle 4(4)(d) of the contested decision § 3547 4. Agreement between Lafarge and Titan referred to in Article 4(4)(e)of the contested decision § 3570 5. Agreement between Lafarge and Heracles referred to inArticle 4(4)(f) of the contested decision § 3601 6. Concerted practice between CBR, Heracles and Titan referred to inArticle 4(4)(g) of the contested decision § 3619 7. Agreement between Aker, EUROC and Titan referred to inArticle 4(4)(h) of the contested decision § 3648 Characterisation, as a single and continuous agreement, of the agreements andconcerted practices referred to in Article 4 of the contested decision § 3680 A - Consistency between the SO and the contested decision § 3689 B - The single and continuous nature of the infringement referred to inArticle 4 of the contested decision § 3694 C - Participation in the single agreement relating to the ETF § 3719 1. CBR § 3720 2. Cembureau § 3727 3. Ciments Français § 3733 4. Unicem § 3740 5. Uniland § 3746 6. Italcementi § 3753 7. Cementir § 3758 D - Infringement of the principle of equal treatment § 3763 Conclusions § 3769 X - The pleas of infringements of Articles 85(1) and 190 of the Treaty and of therights of the defence in that the Commission finds that there were concertedpractices within the framework of the ECEC contrary to Article 85(1) of theTreaty and that the various applicants concerned participated in them (Article5 of the contested decision) § 3771 Preliminary observations § 3771 Contested decision § 3773 The unlawful nature of the activities of the ECEC referred to in Article 5 of thecontested decision § 3783 A - The ECEC's members' direct or indirect membership of Cembureau § 3795 B - Links between the ECEC and the EPC § 3803 C - ECEC's activities not confined to the overseas export markets § 3822 Conclusions § 3849 XI - Pleas of infringements of Articles 85(1) and 190 of the Treaty and of the rightsof the defence in that the Commission finds that there was a concerted practicewithin the framework of the EPC contrary to Article 85(1) of the Treaty and that the various applicants concerned participated in it (Article 6 of the contesteddecision) § 3851 Preliminary observations § 3851 Contested decision § 3854 Concerted practice designed to prevent incursions by competitors on respectivehome markets within the Community § 3864 A - Links between the EPC and Cembureau § 3875 B - Ciments Français internal memos § 3882 C - Documents issuing from the EPC structure showing that the membersof that committee had themselves established a link between domesticmarkets and the EPC's activities § 3894 Continuity of the concerted practice § 3934 Participation of the various applicants concerned in the concerted practice § 3940 Duration of the participation in the infringement by applicants other thanHeracles and Titan § 3973 Infringement of Article 190 of the Treaty § 3981 Access to the file § 3985 A - Incriminating evidence § 3985 B - Exculpatory evidence § 3989 1. Case T-52/95 Valenciana v Commission § 3990 2. Case T-69/95 Hornos Ibéricos v Commission § 4006 3. Case T-88/95 Blue Circle v Commission § 4011 Conclusions § 4015 XII - Pleas alleging errors of assessment and infringements of Article 85(1) and 190of the Treaty, the principle of equal treatment and the rights of the defence inthat the Commission classified as a single and continuous agreement theinfringement referred to in Article 1 of the contested decision and found that thevarious parties involved had participated in that single and continuousagreement § 4016 Contested decision § 4019 Participation by the applicants concerned in the single and continuousCembureau agreement § 4024 A - A single Cembureau agreement § 4025 1. Identity of object between the measures called in question in Articles2 to 6 of the contested decision and the Cembureau agreement § 4026 1.1. Exchanges of information (Article 2 of the contested decision) § 4029 1.2. Franco-Italian concerted practices (contested decision, Article3(1)) § 4033 1.3. The Hispano-Portuguese agreement (Article 3(2)) § 4043 1.4. Franco-German agreements and concerted practices (contesteddecision, Article 3(3)) § 4045 1.5. Elements of the single agreement relating to the ETF (Article 4 ofthe contested decision) § 4050 1.6. ECEC (Article 5 of the contested decision) § 4054 1.7. EPC (Article 6 of the contested decision) § 4055 1.8. Conclusions § 4057 2. The participants' awareness § 4059 2.1. Proof of participation by the various categories of applicantsconcerned § 4059 2.2. Links adduced as evidence in the contested decision § 4069 2.3. Proof of the participation of the indirect members of Cembureauand of Unicem and Buzzi in the Cembureau agreement throughtheir participation in a measure implementing that agreement § 4074 2.3.1. Presence of a member of staff at the Head Delegates meetings atwhich the Cembureau agreement was concluded and/orconfirmed § 4082 2.3.2. Other links § 4089 2.3.3. The particular case of Unicem and Buzzi § 4102 2.4. Conclusions § 4114 3. General arguments questioning the use of the concept of a 'singleagreement § 4115 4. Particular circumstances showing that the various bilateral andmultilateral agreements and concerted practices were not measuresimplementing the single Cembureau agreement § 4140 5. Particular circumstances showing that some applicants had distancedthemselves from the single Cembureau agreement or that theirparticipation in that agreement did not constitute an infringementof Article 85(1) of the Treaty § 4165 B - Continuous nature of the single infringement § 4214 1. Contested decision § 4215 2. Starting date of the infringement § 4222 2.1. Cembureau and its direct members § 4222 2.2. Indirect members of Cembureau § 4248 2.3. Conclusions § 4267 3. Continuous nature of the infringement § 4268 3.1. CBR § 4286 3.2. Cembureau § 4290 3.3. FIC § 4294 3.4. VNC § 4298 3.5. Ciments Luxembourgeois § 4302 3.6. Dyckerhoff § 4306 3.7. SFIC § 4310 3.8. Vicat § 4314 3.9. Ciments Français § 4318 3.10. Heidelberger § 4322 3.11. Lafarge § 4326 3.12. Aalborg § 4330 3.13. BDZ § 4334 3.14. Unicem § 4338 3.15. Valenciana § 4343 3.16. BCA § 4346 3.17. Asland § 4350 3.18. Uniland § 4354 3.19. Oficemen § 4359 3.20. Irish Cement § 4363 3.21. Cimpor § 4367 3.22. SECIL § 4370 3.23. ATIC § 4373 3.24. Italcementi § 4377 3.25. Holderbank § 4382 3.26. Hornos Ibéricos § 4386 3.27. Aker § 4391 3.28. EUROC § 4395 3.29. Cementir § 4399 3.30. Blue Circle § 4403 3.31. AGCI § 4408 3.32. Halkis § 4414 Infringement of the principle of equal treatment § 4418 Infringement of Article 190 of the Treaty § 4436 A - Classification of the Cembureau agreement as a single and continuousagreement § 4436 B - Participation of the various applicants in the single and continuousCembureau agreement § 4448 Infringement of the rights of the defence when the applicants were given accessto the file § 4475 A - Case T-25/95 CBR v Commission § 4479 B - Case T-30/95 FIC v Commission § 4484 C - Case T-37/95 Vicat v Commission § 4486 D - Case T-39/95 Ciments Français v Commission § 4498 E - Case T-42/95 Heidelberger v Commission § 4500 F - Case T-50/95 Unicem v Commission § 4502 G - Case T-55/95 Asland v Commission § 4510 H - Case T-65/95 Italcementi v Commission § 4512 I - Case T-88/95 Blue Circle v Commission § 4514 Final conclusions § 4516 XIII - Pleas of infringements of Article 85(1) and Article 190 of the Treaty and therights of defence in that the Commission finds that there were, within theframework of the WCC, infringements of Article 85(1) of the Treaty and thatvarious applicants participated in them (Article 7 of the contested decision) § 4519 Preliminary observations § 4519 Protection of home markets and coordinated export of production surplusesoutside the Community § 4531 System of exchange of information on individual undertakings § 4593 Effect on inter-State trade § 4604 The applicants' participation in the infringements referred to in Article 7 of thecontested decision § 4618 Time bar of matters found in Article 7 of the contested decision § 4670 Access to the file § 4675 General conclusions § 4692 XIV - The plea alleging that the order in Article 8 of the contested decision isunlawful § 4694 Alternative claims seeking the cancellation or reduction of the fines § 4714 I - Plea alleging inadequate or contradictory statement of reasons in the contesteddecision as regards the fines § 4722 II - Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, and the principle of equal treatment, inasmuch as theCommission imposed a single fine for the group of infringements found inrelation to the grey cement market § 4753 III - Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, and the principle of proportionality in the assessment of theintentional nature of the infringements § 4767 IV - Plea alleging infringement of Regulation No 2988/74 on limitation periods § 4788 V - Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, and the principles of equal treatment and proportionality, andmanifest errors of assessment as regards the duration of the infringement foundin relation to the grey cement market § 4804 VI - Pleas alleging infringements of Article 15(2) of Regulation No 17 and theprinciple of proportionality so far as concerns the duration of the infringementfound in relation to the white cement market § 4816 VII - Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, and principles of proportionality and equal treatment as wellas manifest errors of assessment in assessing the gravity of the infringementfound in relation to the grey cement market § 4821 The aggravating circumstances found in recital 65, paragraph 5, of the contesteddecision § 4822 The mitigating circumstance found in recital 65, paragraph 6, of the contesteddecision § 4840 Failure to take account of certain mitigating circumstances § 4843 A - Size and influence on the market of the offending undertaking § 4843 B - Absence or minor impact of the anti-competitive effects of theinfringements § 4852 C - Conduct on the market during the period in question § 4868 D - No benefit from the infringement § 4878 E - The state of the cement market during the period in question § 4887 F - Self-defence § 4894 G - Cooperation during the administrative procedure § 4902 H - Intention to comply with Community competition law § 4907 I - Novelty of the matter at issue § 4911 J - The European cement industry as world leader § 4916 K - Legal and technical barriers to intra-Community trade in cement § 4918 L - Arrival of a new competitor on the market § 4920 M - Fines not tax-deductible § 4922 N - Financial situation of the offender § 4924 VIII - Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, the principles of proportionality and equal treatment, andmanifest errors of assessment in assessing the responsibility of individualundertakings in respect of the infringement found in relation to the grey cementmarket § 4927 IX - Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, and the principle of proportionality in assessing theresponsibility of individual undertakings in respect of the infringement found inrelation to the white cement market § 4990 X - Pleas alleging infringements of Article 15(2) of Regulation No 17, the principlesof proportionality and equal treatment, and manifest errors of assessment asregards the turnover taken into account for the purpose of calculating thefines § 5005 XI - Pleas alleging infringements of Article 15(2) of Regulation No 17, and theprinciples of equity, proportionality and equal treatment, owing to the fixing ofthe fines in ecus and the choice of conversion rate § 5051 XII - Pleas alleging infringements of various general principles of Community law § 5059 XIII - Plea alleging infringement of rights of the defence owing to incomplete accessto the Commission file during the administrative procedure § 5090 XIV - Conclusions § 5114 The claims for reimbursement of the fine, together with interest, and for reimbursement ofthe expenses incurred in providing a bank guarantee § 5116 Costs § 5119 1: Languages of the cases: Spanish, Danish, German, Greek, English, French, Italian, Dutch and Portuguese.                                                                     The facts 1. The present cases concern Commission Decision 94/815/EC of 30 November 1994relating to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126 and33.322  Cement) (OJ 1994 L 343, p. 1, hereinafter 'the contested decision) whichimposed fines on 42 undertakings and associations of undertakings operating in the grey and white cement sector, for infringing Article 85(1) of the EC Treaty (nowArticle 81(1) EC). 2. From April 1989 to July 1990, the Commission carried out investigations intoEuropean cement producers and trade associations in the sector pursuant to Article14(2) and (3) of Regulation No 17, First Regulation implementing Articles 85 and86 of the Treaty (OJ, English Special Edition 1959-62, p. 87, hereinafter'Regulation No 17). It also sent them requests for information pursuant to Article11 thereof. Finally, it sent to Cembureau  European Cement Association('Cembureau) a statement of objections relating to a proceeding under Article15(1) of Regulation No 17. 3. On 12 November 1991 the Commission initiated the administrative procedure andadopted its objections by virtue of Article 3(1) of Regulation No 17. On 25November 1991 it sent the Statement of Objections ('SO) provided for byRegulation No 99/63/EEC of the Commission of 25 July 1963 on the hearingsprovided for in Article 19(1) and (2) of Council Regulation No 17 (OJ, EnglishSpecial Edition 1963-64, p. 47) to the 76 undertakings and associations ofundertakings concerned. The SO draws a basic distinction between two types ofobjectionable practices, namely practices at international level (Part I, Chapters 1and 2; Part II, Section A, Chapters 10, 11 and 12, and Sections B and C) andpractices at national level (Part I, Chapters 3 to 9; Part II, Section A, Chapters 13to 19). 4. The full text of the SO, which is contained in a single document, was not sent toeach of the undertakings and associations of undertakings involved in theproceeding. The chapters relating to practices engaged in at international levelwere sent to 61 undertakings and associations of undertakings, while 15 Italianundertakings did not receive that part since they had not participated in anyinternational body. The chapters relating to practices at national level were sentonly to the undertakings and associations of undertakings established in theMember State in question. 5. The full index of the SO, and a list of all the documents itemised under filenumbers IV/33.126, IV/33.322 and IV/27.997 specifying which documents wereaccessible to each addressee (hereinafter 'the List), were sent to each addresseeof the SO. Each addressee was able to gain access, at the Commission's premises,to the documents in the three abovementioned files on the basis of the List and thereferences to accessibility in that list. The Commission also sent to them a set ofcopies of documents from those files. On 9 July 1992, the record of the meetingof the European Task Force held on 19 August 1986 (referred to in recital 25,paragraph 14, of the contested decision) was sent by the Commission to all theundertakings and associations of undertakings to which the international section ofthe SO was addressed and they were asked to make known any comments theymight have on that document, which had come to the Commission's knowledge through the replies to the SO submitted by Aker RGI ASA (formerly known asAker A/S, also referred to as 'Aker in the contested decision, hereinafter referredto as 'Aker) and Scancem (publ) AB (formerly known as EUROC AB, alsoreferred to as 'EUROC in the contested decision, hereinafter referred to as'EUROC). 6. After having had access to the Commission's files, a number of those undertakingsasked the Commission for a copy of the chapters that were omitted from the SOsent to them and for access to the whole of the file, except for internal orconfidential documents. The Commission refused to accede to that request. 7. On 12 February 1992, Cimenteries CBR SA (also referred to as 'CBR in thecontested decision, hereinafter 'CBR), Blue Circle Industries plc (hereinafter'Blue Circle), Syndicat National de l'Industrie Cimentière (SFIC) (formerlySyndicat National des Fabricants de Ciments et de Chaux, also referred to as'Syndicat Français de l'Industrie Cimentière or 'SFIC in the contested decision,hereinafter 'SFIC), Eerste Nederlandse Cementindustrie NV (ENCI) (alsoreferred to as 'ENCI in the contested decision, hereinafter 'ENCI), VerenigingNederlandse Cementindustrie (VNC) (also referred to as 'VNC in the contesteddecision, hereinafter 'VNC) and the Fédération de l'Industrie Cimentière BelgeASBL (also referred to as 'Fédération de l'Industrie Cimentière or 'FIC in thecontested decision, hereinafter 'FIC), brought actions before the Court of FirstInstance seeking annulment of the Commission's refusal to send the documentsrequested (Cases T-10/92, T-11/92, T-12/92, T-14/92 and T-15/92) and, inproceedings for interim measures, sought the suspension of the procedure initiatedagainst them by the Commission (T-10/92 R, T-11/92 R, T-12/92 R, T-14/92 R andT-15/92 R). 8. By order of 23 March 1992 in Joined Cases T-10/92 R, T-11/92 R, T-12/92 R,T-14/92 R and T-15/92 R Cimenteries CBR and Others v Commission [1992] ECRII-1571, the President of the Court of First Instance dismissed the applications forinterim measures and extended until 27 and 31 March 1992 respectively thedeadlines for the applicants in those proceedings to reply to the SO. 9. By 31 March 1992 all the applicants in the present proceedings had submittedobservations on the SO sent to them by the Commission. 10. By order of 11 September 1992, Case T-14/92 ENCI and Vereniging NederlandseCementindustrie v Commission (not published in the European Court Reports) wasremoved from the register of the Court of First Instance following the withdrawalof the applicants. Pending judgment in the other actions still before the Court, theCommission suspended the oral hearing to be held after receipt of the replies tothe SO. 11. By judgment of 18 December 1992 in Joined Cases T-10/92, T-11/92, T-12/92 andT-15/92 Cimenteries CBR and Others v Commission [1992] ECR II-2667, the Courtof First Instance dismissed those actions as inadmissible. 12. By letter dated 5 February 1993, the Hearing Officer invited the undertakings andassociations of undertakings to which the SO had been sent to attend the hearingsto be held from 1 March to 1 April 1993. Those hearings were divided into threeseries of sessions: one on the cement market, which all the undertakings andassociations of undertakings were able to attend; one on the international part ofthe SO, which only those undertakings and associations of undertakings whichreceived that part of the SO were able to attend; and one on each of the nationalchapters, which the undertakings and associations of undertakings of the relevantMember State were able to attend separately. In the notice of summons theCommission stipulated that if an undertaking wished to put forward its argumentsprivately it should indicate precisely the relevant parts of the SO and the relevantbusiness secrets within the meaning of Articles 19 to 21 of Regulation No 17. 13. In February 1993, a number of undertakings and associations of undertakings,including Blue Circle and Groupe Origny SA (successor to Cedest SA since 1January 1994, also referred to as 'Cedest in the contested decision, referred tohereinafter as 'Cedest) informed the Commission that they did not wish to availthemselves of the opportunity of putting forward their arguments orally on theobjections raised against them. 14. On 23 September 1993, following examination of the written replies to the SO andthe explanations put forward orally at the hearings in March 1993, the Commissiondecided to drop the objections relating to the international part of the SO (Part I,Chapters 1 and 2; Part II, Section A, Chapters 10, 11 and 12, and Sections B andC) as against 12 German undertakings and 6 Spanish undertakings and,consequently, to terminate the proceeding initiated on 12 November 1991 againstthem. It also decided to drop, as against the other addressees of the SO, theobjections relating to the national agreements and concerted practices (SO, PartI, Chapters 3 to 9; Part II, Section A, Chapters 13 to 19), and, consequently, toterminate the proceeding initiated on 12 November 1991 in respect of thoseobjections. 15. On 27 September 1993, it informed all the undertakings and associations ofundertakings involved of its decision to drop the objections relating to the nationalagreements and concerted practices. Accordingly, it informed them that the '...indications contained under letter (c) in Part II (Applicability of Article 15(2) ofRegulation No 17/62) in point 93(b) of the statement of objections regarding thefact that it is impossible to separate the national agreements, decisions andconcerted practices from the European ones, since both form an inseparablewhole are now purposeless and will not be taken into consideration during the procedure which will follow its usual course for all remaining chapters of thestatement of objections addressed to you. 16. On 5 October 1994, the Commission consulted the Advisory Committee onRestrictive Practices and Dominant Positions. It consulted it again on 23 November1994. 17. On 30 November 1994, it adopted the contested decision in which it drew adistinction between two markets, the grey cement market and the white cementmarket. The 42 undertakings and associations of undertakings to which thatdecision was addressed are all referred to in the decision's passages dealing withthe grey cement market (recitals 6, 8 to 37, 42 to 60, 64 and 65, and Articles 1 to6, 8 and 9). Only six undertakings to which the contested decision was addressedare also referred to in its passages on the white cement market (recitals 7, 38 to41, 42, 43, 61 to 63 and 65, and Articles 7, 8 and 10). 18. So far as concerns the grey cement market, the contested decision finds that thereexisted a general agreement which was designed to ensure non-transhipment tohome markets and the regulation of transfers of cement from one country toanother. That agreement was allegedly concluded in Paris on 14 January 1983,during a meeting of the representatives of European cement producers which aremembers of Cembureau. The contested decision finds, in Article 1, that theagreement ('the Cembureau agreement) existed and that all the undertakings andassociations of undertakings to which the contested decision was addressedparticipated in it, contrary to the prohibition laid down in Article 85(1) of theTreaty. The Commission is of the view that the Cembureau agreement is a singleand continuous agreement (contested decision, recital 46), in that it wasimplemented in the framework of bilateral or multilateral agreements andconcerted practices. The existence of those agreements and concerted practices aswell as the participation in them by various undertakings and associations ofundertakings is found in Articles 2 to 6 of the contested decision. 19. The contested decision thus finds that there were agreements and concertedpractices between Cembureau and its members concerning the exchange ofinformation designed to facilitate the implementation of the Cembureau agreement(recitals 16, 17 and 47 and Article 2(1) and (2)). It also finds that there werespecific cross-border agreements, relating to Franco-Italian relations (recitals 20and 48 and Article 3(1)(a), (b) and (c)), Hispano-Portuguese relations (recitals 21and 49, and Article 3(2)) and to Franco-German relations (recitals 22 and 50, andArticle 3(3)(a) and (b)). It sets out the collusion which allegedly took placebetween several European producers as a reaction to imports of Greek cement andclinker into the Member States of the Community in the mid-1980s, which gave riseto the setting up of a group known as the European Task Force ('ETF); thesetting up of a 'Joint Trading Company (also referred to hereinafter as'Interciment); the adoption of measures to defend the Italian market; and the adoption of measures for the purchase of quantities of cement or clinker likely todestabilise the market ('persuasive measures or 'carrot actions) (recitals 24 to29 and 53 to 57, and Article 4(1), (2), (3)(a) and (b), and (4)(a) to (h)). Finally, italleges that a number of undertakings and associations of undertakings participatedin concerted practices contrary to Article 85(1) of the Treaty in the framework oftwo committees set up by the trade in order to discuss export problems: theEuropean Cement Export Committee ('ECEC) and the European Export PolicyCommittee ('EPC) (recitals 30 to 37 and 58 to 60, and Articles 5 and 6). 20. Article 9 of the contested decision imposes a fine on each of the 42 undertakingsand associations of undertakings to which it was sent, on the ground that they hadparticipated in the infringement referred to in Article 1, that infringement havingbeen implemented by the conduct referred to in Articles 2 to 6. The amounts ofthe fines thus imposed range from ECU 40 000 to ECU 32 492 000, totalling ECU242 420 000. 21. So far as concerns the white cement market, the contested decision finds that sixundertakings participated in the commission of various infringements in theframework of the White Cement Committee, a committee made up of theEuropean white cement producers who export their products ('WCC) (recitals 38to 41 and 61 to 63, and Article 7). Article 10 imposes fines on the six undertakingsranging from ECU 554 000 to ECU 1 088 000, totalling ECU 5 546 000. 22. The contested decision contains the following provisions: 'Article 1 Cembureau  The European Cement Association, the Fédération de l'IndustrieCimentière ASBL, SA Cimenteries CBR, Aalborg Portland A/S, the SyndicatFrançais de l'Industrie Cimentière, Lafarge Coppée SA, Société des CimentsFrançais SA, Vicat SA, Cedest SA, the Bundesverband der DeutschenZementindustrie, Heidelberger Zement AG, Dyckerhoff AG, Alsen-BreitenburgZement- und Kalkwerke GmbH, Nordcement AG, the Association of the GreekCement Industry, Titan Cement Company SA, Heracles General Cement Company,Halkis Cement Company SA, Irish Cement Ltd, Italcementi  Fabbriche RiuniteCemento SpA, Unicem SpA, Cementir  Cementerie del Tirreno SpA, SA desCiments Luxembourgeois, the Vereniging Nederlandse Cementindustrie, EersteNederlandse Cement Industrie NV, the British Cement Association, Blue CircleIndustries plc, Rugby Group plc and Castle Cement Ltd, from 14 January 1983,Fratelli Buzzi SpA from 11 May 1983, ATIC  Associação Tecnica da Industria doCimento, Cimpor  Cimentos de Portugal SA, SECIL  Companhia Geral de Cale Cimento SA, Agrupación de Fabricantes de Cementos de España  Oficemen,Asland SA, Corporación Uniland SA, Hispacement SA, Hornos Ibéricos Alba SAand Compañia Valenciana de Cementos Portland SA, from 1 January 1986,Holderbank Financière Glar[u]s SA, from 28 May 1986, and Aker A/S and EUROC AB, from 9 June 1986, infringed the provisions of Article 85(1) of the ECTreaty by participating in an agreement designed to ensure non-transhipment tohome markets and to regulate cement transfers from one country to another. Article 2 1. Cembureau  The European Cement Association, the Fédération del'Industrie Cimentière ASBL, Aalborg Portland A/S, the Syndicat Françaisde l'Industrie Cimentière, the Bundesverband der DeutschenZementindustrie, the Association of the Greek Cement Industry, IrishCement Ltd, Italcementi  Fabbriche Riunite Cemento SpA, Unicem SpA,Cementir  Cementerie del Tirreno SpA, SA des Ciments Luxembourgeois,the Vereniging Nederlandse Cement-Industrie and the British CementAssociation, from 14 January 1983 to 14 April 1986, and ATIC  AssociaçãoTecnica da Industria do Cimento and Agrupación de Fabricantes deCementos de España  Oficemen, from 1 January 1986 to 14 April 1986,infringed the provisions of Article 85(1) of the EC Treaty by participatingin agreements on the exchange of price information, designed to facilitatethe implementation of the agreement referred to in Article 1, at theCembureau Head Delegates and Executive Committee meetings. 2. Cembureau  The European Cement Association, the Fédération del'Industrie Cimentière ASBL, Aalborg Portland A/S, the Syndicat Françaisde l'Industrie Cimentière, the Bundesverband der DeutschenZementindustrie, the Association of the Greek Cement Industry, IrishCement Ltd, Italcementi  Fabbriche Riunite Cemento SpA, Unicem SpA,Cementir  Cementerie del Tirreno SpA, SA des Ciments Luxembourgeois,the Vereniging Nederlandse Cement-Industrie and the British CementAssociation, from 1 January 1984 to 31 December 1988, and ATIC Associação Tecnica da Industria do Cimento and Agrupación deFabricantes de Cementos de España  Oficemen, from 1 January 1986 to31 December 1988, infringed the provisions of Article 85(1) of the ECTreaty by participating in concerted practices designed to facilitate theimplementation of the agreement referred to in Article 1 and relating to: (a) the circulation of information on the Belgian and Dutch producers'minimum prices for supplies of cement by lorry and of theLuxembourg producer's prices, inclusive of rebates; (b) the circulation of information on the Danish and Irish producers'individual price lists, on the trade price lists in force in Greece, Italyand Portugal, and on the average prices charged in Germany, France,Spain and the United Kingdom. Article 3 1. (a) Lafarge Coppée SA and Fratelli Buzzi SpA infringed, from 26November 1988 to 31 December 1988, the provisions of Article 85(1)of the EC Treaty by participating in a concerted practice involving thesharing of the market in southern France and the restriction of theirautonomy of conduct with regard to production sources. (b) Société de Ciments Français SA and Fratelli Buzzi SpA infringed,from 17 March 1988 to 31 December 1988, the provisions of Article85(1) of the EC Treaty by participating in a concerted practiceinvolving information on current prices and a forecast of priceincreases, with a view to the restriction of their autonomy of conduct. (c) Vicat SA and Fratelli Buzzi SpA infringed, from 11 May 1983 to 31December 1988, the provisions of Article 85(1) of the EC Treaty byparticipating in a concerted practice involving the exchange of priceinformation with a view to the restriction of their autonomy ofconduct as regards cement supplies in southern France. 2. Agrupación de Fabricantes de Cementos de España  Oficemen, Cimpor Cimentos de Portugal SA, SECIL  Companhia Geral de Cal e CimentoSA infringed the provisions of Article 85(1) of the EC Treaty from 1January 1986 to 24 April 1989 by participating in an agreement on themonitoring of cement movements between Spain and Portugal and on non-transhipment to their respective home markets. 3. (a) The Syndicat Français de l'Industrie Cimentière, Lafarge Coppée SA,Société de Ciments Français SA, Cedest SA, the Bundesverband derDeutschen Zementindustrie, Dyckerhoff AG and HeidelbergerZement AG infringed the provisions of Article 85(1) of the EC Treatyfrom 23 June 1982 to at least 30 September 1989 by participating inagreements and concerted practices involving the regulation of cementsupplies from France to Germany and from Germany to France. (b) The Syndicat Français de l'Industrie Cimentière and theBundesverband der Deutschen Zementindustrie infringed theprovisions of Article 85(1) of the EC Treaty from 1 January 1985 to30 September 1989 by participating in a concerted practice involvingthe exchange of information designed to monitor compliance with thequantitative restrictions on exports between France and Germany andto monitor the destination of such exports in terms of the variousGerman Länder. Article 4 1. Cembureau  The European Cement Association, the HolderbankFinancière Glar[u]s SA group, Blue Circle Industries plc, Agrupación deFabricantes de Cementos de España  Oficemen, Asland SA, CorporaciónUniland SA, Hispacement SA, the Syndicat Français de l'IndustrieCimentière, Lafarge Coppée SA, Société de Ciments Français SA, theBundesverband der Deutschen Zementindustrie, Dyckerhoff AG,Heidelberger Zement AG, SA Cimenteries CBR, Aker A/S and EUROCAB, Aalborg Portland A/S, Irish Cement Ltd, Italcementi  FabbricheRiunite Cemento SpA, Unicem SpA and Cementir  Cementerie delTirreno SpA infringed the provisions of Article 85(1) of the EC Treaty asfrom 28 May 1986 by participating in the agreement on the setting-up of theCembureau Task Force or European Task Force. 2. The Holderbank Financière Glar[u]s SA group, Blue Circle Industries plc,Agrupación de Fabricantes de Cementos de España  Oficemen, AslandSA, Corporación Uniland SA, Hispacement SA, the Syndicat Français del'Industrie Cimentière, Lafarge Coppée SA, Société de Ciments FrançaisSA, the Bundesverband der Deutschen Zementindustrie, Dyckerhoff AG,Heidelberger Zement AG, Aker A/S and EUROC AB, SA CimenteriesCBR, Italcementi  Fabbriche Riunite Cemento SpA, Unicem SpA andCementir  Cementerie del Tirreno SpA infringed the provisions of Article85(1) of the EC Treaty from 9 June 1986 to 26 March 1993 by participatingin an agreement on the setting-up of the Joint Trading Company,Interciment SA, having as its purpose the carrying-out of the persuasive anddissuasive measures against those threatening the stability of the membercountries' markets. 3. (a) Cembureau  The European Cement Association, the HolderbankFinancière Glar[u]s SA group, Blue Circle Industries plc, Agrupaciónde Fabricantes de Cementos de España  Oficemen, Asland SA,Corporación Uniland SA, Hispacement SA, the Syndicat Français del'Industrie Cimentière, Lafarge Coppée SA, Société de CimentsFrançais SA, the Bundesverband der Deutschen Zementindustrie,Dyckerhoff AG, Heidelberger Zement AG, SA Cimenteries CBR,Aker A/S and EUROC AB, Aalborg Portland A/S, Irish Cement Ltd,Italcementi  Fabbriche Riunite Cemento SpA, Unicem SpA andCementir  Cementerie del Tirreno SpA infringed the provisions ofArticle 85(1) of the EC Treaty from 17 June 1986 to 15 March 1987by participating in concerted practices designed to withdrawCalcestruzzi SpA as a customer from the Greek producers, and fromTitan in particular. (b) Italcementi  Fabbriche Riunite Cemento SpA, Unicem SpA andCementir  Cementerie del Tirreno SpA infringed the provisions ofArticle 85(1) of the EC Treaty from 3 April 1987 to 3 April 1992 by participating in an agreement relating to the contracts and agreementssigned on 3 and 15 April 1987 having as their aim the prevention ofimports of Greek cement by Calcestruzzi SpA. 4. The following undertakings infringed the provisions of Article 85(1) of theEC Treaty by participating in agreements and concerted practices designedto deflect the Greek production surplus and to curb Greek cement importsinto the Member States, and in particular: (a) Blue Circle Industries plc, Castle Cement Ltd and Rugby Group plc,from 16 June 1986 to 5 September 1986, by participating in aconcerted practice designed to prevent and/or reduce Greek cementimports into the United Kingdom; (b) Blue Circle Industries plc and Titan Cement Company SA, from 4July 1986 to 31 December 1989, by participating in an agreementdesigned to deflect quantities of cement and clinker produced byTitan Cement Company SA to the United States and Nigeria and toprevent direct sales of such products by Titan Cement Company SAon the European markets; (c) the Holderbank Financière Glar[u]s SA group and Titan CementCompany SA, from 19 June 1986 to 31 December 1990, byparticipating in an agreement designed to deflect quantities of cementand clinker produced by Titan Cement Company SA to the UnitedStates and Africa and to prevent direct sales of such products byTitan Cement Company SA on the European markets; (d) the Holderbank Financière Glar[u]s SA group and Heracles GeneralCement Company, from 9 May 1986 to 31 December 1990, byparticipating in an agreement designed to prevent direct sales ofcement by Heracles General Cement Company on the Europeanmarkets and to deflect quantities of cement and clinker produced byHeracles General Cement Company to other markets; (e) Lafarge Coppée SA and Titan Cement Company SA, from 22 July1986 to 31 December 1991, by participating in an agreement designedto deflect quantities of clinker produced by Titan Cement CompanySA to Canada and to prevent direct sales by Titan Cement CompanySA on the European markets; (f) Lafarge Coppée SA and Heracles General Cement Company, from1 June 1988 to 15 June 1991, by participating in an agreementdesigned to deflect quantities of cement and clinker produced byHeracles General Cement Company outside Europe and to prevent direct sales of such products by Heracles General Cement Companyon the European markets; (g) SA Cimenteries CBR, Heracles General Cement Company and TitanCement Company SA, from 4 May 1988 to 31 December 1990, byparticipating in a concerted practice relating to supplies, throughUMAR  Union Maritima Internacional SA, of clinker intended forthe companies SA Cimenteries CBR and Eerste Nederlandse CementIndustrie NV in Belgium and the Netherlands and designed to preventdirect sales by the two Greek producers on the European markets; (h) Aker A/S and EUROC AB and Titan Cement Company SA, from 28January 1987 to 31 December 1990, by participating in an agreementdesigned to deflect quantities of cement and clinker produced byTitan Cement Company SA to Africa, the United States and theBahamas and to prevent direct sales of such products by TitanCement Company SA on the European markets. Article 5 The Fédération de l'Industrie Cimentière, Aalborg Portland A/S, the SyndicatFrançais de l'Industrie Cimentière, Dyckerhoff AG, Alsen-Breitenburg Zement- undKalkwerke GmbH, Nordcement AG, the Association of the Greek CementIndustry, Irish Cement Ltd, Italcementi  Fabbriche Riunite Cemento SpA, UnicemSpA, Cementir  Cementerie del Tirreno SpA and Eerste Nederlandse CementIndustrie NV, from 14 March 1984 to 22 September 1989, and Castle Cement Ltd,ATIC  Associação Técnica da Industria do Cimento and Agrupación deFabricantes de Cementos de España  Oficemen, from 1 January 1986 to 22September 1989, infringed the provisions of Article 85(1) of the Treaty byparticipating, within the framework of the ECEC, in concerted practices relatingto the exchange of information, the supply and demand situation in the importingthird countries, the export prices chargeable, the import situation in the membercountries and the supply and demand situation on the home markets and designedto prevent incursions by competitors on respective national markets in theCommunity. Article 6 Lafarge Coppée SA, Titan Cement Company SA, Heracles General CementCompany and Halkis Cement Company SA, from 1 July 1981 to 19 May 1989,Société de Ciments Français SA, from 1 July 1981 to 17 February 1989, Blue CircleIndustries plc, from 1 July 1981 to 12 October 1987, and Hispacement SA, HornosIbéricos Alba SA, Compañia Valenciana de Cementos Portland SA and itssubsidiary Cementos del Mar SA, from 1 January 1986 to 19 May 1989, infringedthe provisions of Article 85(1) of the EC Treaty by participating, within the framework of the EPC, in a continuous concerted practice involving theexamination of the situation on Community markets, the sharing of third-countrymarkets, the setting of prices for products intended for overseas export, theexchange of individualised data on export availabilities and on actual exports tothird countries and designed to prevent incursions by competitors on respectivenational markets in the Community. Article 7 Italcementi  Fabbriche Riunite Cemento SpA, Dyckerhoff AG, Lafarge CoppéeSA, Société de Ciment Français SA and SA Cimenteries CBR, from 6 May 1982to 26 May 1988, and Compañia Valenciana de Cementos Portland SA, from 1January 1986 to 26 May 1988, infringed the provisions of Article 85(1) of the ECTreaty by participating, within the framework of the WCC, in the concertedpractice and agreement relating to non-transhipment to home markets, in thecontinuous concerted practice relating to the channelling of production surplusesfor export to third countries, and in a continuous concerted practice relating toexchanges of information on the production capacities, output, domestic and exportsales, domestic prices for white and grey cement and export prices of individualundertakings. Article 8 The undertakings specified in Articles 1 to 7 shall forthwith bring the infringementsreferred to in those Articles to an end (if they have not already done so) and shallhenceforth refrain, in relation to the markets for grey cement and white cement,from any agreement or concerted practice which may have the same or similarobject, including any exchange of confidential commercial information designed tomonitor the performance of any express or tacit agreement or any concertedpractice involving the sharing of markets in the Community. Article 9 The following fines are hereby imposed on the associations and undertakingsconcerned, in respect of the infringement found in Article 1, which was put intoeffect, in particular, by the conduct set out in Articles 2 to 6: 1. Cembureau  The European Cement Association: a fine of ECU 100 000 2. Holderbank Financière Glar[u]s SA: a fine of ECU 5 331 000 3. Aker A/S: a fine of ECU 40 000 4. EUROC AB: a fine of ECU 40 000 5. Bundesverband der Deutschen Zementindustrie: a fine of ECU 100 000 6. Alsen-Breitenburg Zement- und Kalkwerke GmbH: a fine of ECU 3 841 000 7. Dyckerhoff AG: a fine of ECU 12 296 000 8. Heidelberger Zement AG: a fine of ECU 15 652 000 9. Nordcement AG: a fine of ECU 1 850 000 10. Fédération de l'Industrie Cimentière: a fine of ECU 100 000 11. SA Cimenteries CBR: a fine of ECU 7 196 000 12. Aalborg Portland A/S: a fine of ECU 4 008 000 13. Agrupación de Fabricantes de Cementos de España  Oficemen: a fine of ECU 70 000 14. Asland SA: a fine of ECU 5 337 000 15. Hispacement SA: a fine of ECU 102 000 16. Hornos Ibéricos Alba SA: a fine of ECU 1 784 000 17. Corporación Uniland SA: a fine of ECU 1 971 000 18. Compañia Valenciana de Cementos Portland SA: a fine of ECU 1 312 000 19. Syndicat Français de l'Industrie Cimentière: a fine of ECU 100 000 20. Cedest SA: a fine of ECU 2 522 000 21. Société des Ciments Français SA: a fine of ECU 24 716 000 22. Lafarge Coppée SA: a fine of ECU 22 872 000 23. Vicat SA: a fine of ECU 8 272 000 24. Association of the Greek Cement Industry: a fine of ECU 100 000 25. Halkis Cement Company SA: a fine of ECU 1 856 000 26. Heracles General Cement Company: a fine of ECU 5 748 000 27. Titan Cement Company SA: a fine of ECU 5 625 000 28. Irish Cement Ltd: a fine of ECU 3 524 000 29. Fratelli Buzzi SpA: a fine of ECU 3 652 000 30. Cementir  Cementerie del Tirreno SpA: a fine of ECU 8 248 000 31. Italcementi  Fabbriche Riunite Cemento SpA: a fine of ECU 32 492 000 32. Unicem SpA: a fine of ECU 11 652 000 33. SA des Ciments Luxembourgeois: a fine of ECU 1 052 000 34. Vereniging Nederlandse Cementindustrie: a fine of ECU 100 000 35. Eerste Nederlandse Cementindustrie NV: a fine of ECU 7 316 000 36. ATIC  Associação Técnica da Indústria do Cimento: a fine of ECU 70 000 37. Cimpor  Cimentos de Portugal SA: a fine of ECU 9 324 000 38. SECIL  Companhia Geral de Cal e Cimento SA: a fine of ECU 3 017 000 39. British Cement Association: a fine of ECU 100 000 40. Blue Circle Industries plc: a fine of ECU 15 824 000 41. Castle Cement Ltd: a fine of ECU 7 964 000 42. The Rugby Group plc: a fine of ECU 5 144 000 Article 10 The following fines are hereby imposed on the undertakings named herein inrespect of the infringements found in Article 7: 1. Italcementi  Fabbriche Riunite Cemento SpA: a fine of ECU 1 088 000 2. Dyckerhoff AG: a fine of ECU 988 000 3. Lafarge Coppée SA: a fine of ECU 1 028 000 4. Société des Ciments Français SA: a fine of ECU 1 052 000 5. SA Cimenteries CBR: a fine of ECU 836 000 6. Compañia Valenciana de Cementos Portland SA: a fine of ECU 554 000 Article 11 The fines imposed in Articles 9 and 10 shall be paid within three months of thedate of notification of this Decision to the following bank account ... On expiry of that period, interest shall automatically be payable at the rate chargedby the European Monetary Institute on its ecu operations on the first working dayof the month in which this Decision was adopted, plus 3.5 percentage points, i.e.9.25%. Article 12 This Decision is addressed to ... Procedure 23. On 13 January 1995, Ciments Français SA (also referred to as 'Société desCiments Français SA, 'Ciments Français and 'SCF in the contested decision,hereinafter 'Ciments Français) advised the Commission of a clerical error in thecalculation of the fine imposed on it in respect of the grey cement market. On 6 February 1995, it became concerned at the fact that that error had been repeatedin the second notification of the contested decision. On 17 February 1995, theCommission informed it of its decision of 13 February 1995 to reject its request forrectification of the amount of the fine. 24. On 6 February 1995, Castle Cement Ltd (hereinafter 'Castle), Aker and EUROCasked the Member of the Commission responsible for competition policy whetherthe Commission would pay interest on the amounts already paid pending theoutcome of the appeal if the fine were annulled in whole or in part. Followingreceipt of the second notification in February 1995, they requested the Commissionon 13 February 1995 to confirm what consequences that second notification wouldhave as regards the fine or the lodging of a bank guarantee. They received no replyto their questions concerning the payment of interest. 25. By separate applications lodged at the Court Registry between 14 February 1995and 12 April 1995, CBR (T-25/95), Cembureau (T-26/95), FIC (T-30/95), ENCI(T-31/95), VNC (T-32/95), Ciments Luxembourgeois SA (also known as 'SA desCiments Luxembourgeois and 'Ciments Luxembourgeois in the contesteddecision, hereinafter 'Ciments Luxembourgeois) (T-34/95), Dyckerhoff AG(formerly Dyckerhoff Zement GmbH, hereinafter 'Dyckerhoff) (T-35/95), SFIC(T-36/95), Vicat SA (hereinafter 'Vicat) (T-37/95), Cedest (T-38/95), Cimentsfrançais (T-39/95), Heidelberger Zement AG (hereinafter 'Heidelberger)(T-42/95), Lafarge Coppée (also referred to as 'Lafarge Coppée SA and 'LafargeCoppée and 'Lafarge in the contested decision, hereinafter 'Lafarge) (T-43/95),Aalborg Portland A/S (hereinafter 'Aalborg) (T-44/95), Alsen AG (formerlyAlsen-Breitenburg Zement- und Kalkwerke GmbH, also referred to as 'Alsen-Breitenburg in the contested decision, hereinafter 'Alsen-Breitenburg) (T-45/95),Alsen AG (formerly Nordcement AG, also referred to as 'Nordcement in thecontested decision, hereinafter 'Nordcement) (T-46/95), Bundesverband derDeutschen Zementindustrie eV (also referred to as 'Bundesverband and 'BDZin the contested decision, hereinafter 'BDZ) (T-48/95), Unicem SpA (hereinafter'Unicem) (T-50/95), Fratelli Buzzi SpA (hereinafter 'Buzzi) (T-51/95), CompañiaValenciana de Cementos Portland SA (hereinafter 'Valenciana) (T-52/95), TheRugby Group plc (also referred to as 'Rugby in the contested decision,hereinafter 'Rugby) (T-53/95), British Cement Association (hereinafter 'BCA)(T-54/95), Asland SA (hereinafter 'Asland) (T-55/95), Castle (T-56/95), HeraclesGeneral Cement Company SA (also referred to as 'Heracles in the contesteddecision, hereinafter 'Heracles) (T-57/95), Corporación Uniland SA (hereinafter'Uniland) (T-58/95), Agrupación de Fabricantes de Cemento de España(Oficemen) (also referred to as 'Oficemen in the contested decision, hereinafter'Oficemen) (T-59/95), Irish Cement Ltd (hereinafter 'Irish Cement) (T-60/95),Cimpor  Cimentos de Portugal SA (hereinafter 'Cimpor) (T-61/95), SECIL Companhia Geral de Cal e Cimento SA (hereinafter 'SECIL) (T-62/95), ATIC Associação Técnica da Indústria de Cimento (hereinafter 'ATIC) (T-63/95),Titan Cement Company SA (also referred to as 'Titan in the contested decision, hereinafter 'Titan) (T-64/95), Italcementi  Fabbriche Riunite Cemento SpA(hereinafter 'Italcementi) (T-65/95), Holderbank Financière Glarus AG (alsoreferred to as 'Holderbank Financière Glar[u]s SA in the contested decision,hereinafter 'Holderbank) (T-68/95), Hornos Ibéricos Alba SA (Hisalba) (alsoreferred to as 'Hornos Ibéricos and 'Hisalba in the contested decision,hereinafter 'Hornos Ibéricos) (T-69/95), Aker (T-70/95), EUROC (T-71/95),Cementir  Cementerie del Tirreno SpA (hereinafter 'Cementir) (T-87/95), BlueCircle (T-88/95), Enosi Tsimentoviomichanion Ellados (formerly Association of theGreek Cement Industry, referred to as such in the contested decision, hereinafter'AGCI) (T-103/95) and Tsimenta Chalkidos AE (formerly Halkis CementCompany, also referred to as 'Halkis in the contested decision, hereinafter'Halkis) (T-104/95) brought the present actions. 26. By application lodged at the Court Registry on 17 May 1995, Halkis brought anapplication under Articles 185 and 186 of the EC Treaty for interim measuresseeking suspension of the operation of the contested decision in so far as itrequired it to pay a fine. By order of the President of the Court of First Instanceof 11 August 1995 in Case T-104/95 R Tsimenta Chalkidos v Commission [1995]ECR II-2235, that application was dismissed. 27. By application lodged at the Court Registry on 10 May 1995, Cementir brought asecond action seeking specifically the annulment of the contested decision in so faras it fixes, in Article 9, the amount of the fine imposed on it (Case T-116/95). Byorder of 10 June 1998, the Court of First Instance (Fourth Chamber, ExtendedComposition) declared that action inadmissible (Case T-116/95 Cementir vCommission [1998] ECR II-2261). 28. Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(Fourth Chamber, Extended Composition) decided to open the oral procedure inall the present cases without any preparatory inquiry. However, as a measure oforganisation of the procedure, it asked the parties to produce a number ofdocuments and to reply in writing to a number of questions. The parties complied. 29. The parties presented oral argument and replied to the questions put by the Courtof First Instance at the hearings on 16, 18, 23, 25 and 30 September 1998, and on2, 7, 9, 14, 16 and 21 October 1998. Forms of order sought 30. CBR (T-25/95) claims that the Court should:  annul Articles 1, 4, 7, 8, 9 and 10 of the contested decision;  in the alternative, annul or at least reduce the fines imposed on it;  order the Commission to pay the costs. 31. Cembureau (T-26/95) claims that the Court should:  annul the contested decision in so far as it concerns it;  order the Commission to pay the costs; and  order any measures of inquiry that it may consider necessary. 32. FIC (T-30/95) claims that the Court should:  annul Articles 1, 2, 5, 8 and 9 of the contested decision in so far as theyconcern it;  in the alternative, annul or at least reduce the fine imposed on it;  order the Commission to pay the costs. 33. ENCI (T-31/95) claims that the Court should:  annul the contested decision, at least in so far as it concerns it;  in the alternative, reduce the fine imposed on it;  order the Commission to pay the costs, together with interest on the finewrongly paid. 34. VNC (T-32/95) claims that the Court should:  annul the contested decision, at least in so far as it concerns it;  in the alternative, reduce the fine imposed on it;  order the Commission to pay the costs, together with interest on the finewrongly paid. 35. Ciments Luxembourgeois (T-34/95) claims that the Court should:  annul, in so far as they concern it, Article 1, Article 2(1) and (2) and Article9 of the contested decision;  in the alternative, reduce the fine imposed on it;  order the Commission to pay the costs. 36. Dyckerhoff (T-35/95) claims that the Court should:  annul, in so far as they concern it, Article 1, Article 3(3)(a), Article 4(1),(2), and 3(a), and Articles 5, 7, 8, 9 and 10 of the contested decision;  in the alternative, reduce the fines imposed on it;  order the Commission to pay the costs. 37. SFIC (T-36/95) claims that the Court should:  question the Commission and, if necessary, the Advisory Committee as tothe nature and extent of the information which was available and which wasprovided to the members of that committee, in particular in relation to theamount of the fines envisaged;  question the Commission as to the validity of the deliberation of the collegeof its members, in particular with regard to the conditions under which thelatter were granted access or informed as to the arguments relied upon indefence by the applicant and the other addressees of the SO;  find that the Advisory Committee was not in a position to rule in fullknowledge of the facts;  find that the principle of collegiality of the Commission was not observed;  annul in whole or in part Articles 1, 2, 3(3), 4(1) and (2), 5 and 9 of thecontested decision in so far as those articles concern the applicant;  order the Commission to pay the costs. 38. Vicat (T-37/95) claims that the Court should:  annul Articles 1, 3(1)(c), and 9 of the contested decision, in so far as thosearticles concern it;  in the alternative, annul or at least reduce the fine imposed on it;  order the Commission to pay the costs. 39. Cedest (T-38/95) claims that the Court should:  annul in whole or in part Articles 1, 3(3)(a) and 9, point 20, of thecontested decision, in so far as those articles concern it;  in the alternative, annul or at least reduce the fine imposed on it;  order the Commission to pay the costs. 40. Ciments Français (T-39/95) claims that the Court should:  annul the contested decision;  in the alternative, reduce the fines imposed on it;  order the Commission to pay the costs. 41. Heidelberger (T-42/95) claims that the Court should:  annul the contested decision in so far as it concerns it;  in the alternative, annul or at least reduce the fine imposed on it;  order the Commission to pay the costs. 42. Lafarge (T-43/95) claims that the Court should:  annul the contested decision or, at the very least, Article 1, Article 3(1)(a),Article 3(3)(a), Article 4(1), (2) and (3)(a), Article 4(4)(e) and (f), andArticles 6 and 7 thereof;  in the alternative, annul or, at the very least, reduce the fines imposed onit;  adopt any appropriate measure;  order the Commission to pay the costs. 43. Aalborg (T-44/95) claims that the Court should:  annul Articles 1, 2, 4(1) and (3)(a), 5, 8 and 12 of the contested decision,in so far as those articles concern it;  in the alternative, annul or at least reduce the fine imposed on it;  order the Commission to pay the costs. 44. Alsen-Breitenburg (T-45/95) claims that the Court should:  annul the contested decision in so far as it concerns it;  in the alternative, annul or at least reduce the fine imposed on it;  order the Commission to pay the costs. 45. Nordcement (T-46/95) claims that the Court should:  annul the contested decision in so far as it concerns it;  in the alternative, annul or at least reduce the fine imposed on it;  order the Commission to pay the costs. 46. BDZ (T-48/95) claims that the Court should:  annul Article 1, Article 2, Article 3(3), Article 4(1), (2) and (3)(a) andArticle 9(5) of the contested decision;  order the Commission to pay the costs. 47. Unicem (T-50/95) claims that the Court should:  annul the contested decision, at least in so far as it concerns it;  in the alternative, annul or reduce the fine imposed on it;  order the defendant to pay the costs and to reimburse to the applicant theexpenses and interest incurred in providing a guarantee either wholly or inrespect of the amount by which the fine is reduced. 48. Buzzi (T-51/95) claims that the Court should:  annul in whole or in part the contested decision in so far as it concerns it;  in the alternative, annul or reduce the fine imposed on it;  order the Commission to pay the costs;  order the Commission to reimburse the whole of the costs incurred by itduring the administrative procedure;  order the Commission to reimburse the whole of the costs incurred inlodging a security for the payment of the fine imposed;  authorise it to summon Franco Buzzi, its managing director, to appearbefore the Court. 49. Valenciana (T-52/95) claims that the Court should:  annul in whole or in part the contested decision, in so far as it concerns it;  in the alternative, reduce the fines imposed on it;  order the Commission to pay the costs. 50. Rugby (T-53/95) claims that the Court should:  annul Articles 1, 2, 4, 8, and 9 of the contested decision, in so far as theyconcern it;  in the alternative, annul or reduce the fine imposed on it;  order the Commission to pay the costs. 51. BCA (T-54/95) claims that the Court should:  annul the contested decision in so far as it concerns it;  order the Commission to pay the costs. 52. Asland (T-55/95) claims that the Court should:  annul in whole or in part the contested decision;  in the alternative, annul or reduce the fine imposed on it;  order the Commission to pay the costs, including the costs and interestincurred in lodging a security or for the possible payment in full or in partof the fine. 53. Castle (T-56/95) claims that the Court should:  annul in whole or in part the contested decision in so far as it concerns it;  annul or reduce the fine imposed on it;  order the Commission to pay the costs. 54. Heracles (T-57/95) claims that the Court should:  annul the contested decision;  in the alternative, annul or reduce the fine imposed on it;  order the Commission to produce all internal notes, memoranda and draftdocuments prepared by Members of the Commission or officials of theCommission, minutes of the Commission's meetings and opinions of theAdvisory Committee, meetings relating to  the dissemination of the applicant's defence, as set out in its Responseto the SO and minutes of the oral hearing, within the Commission andthe Advisory Committee, in languages other than the original Greekversion;  the calculation of the applicant's fine, in particular the Commission'sdraft Decisions presented to the Advisory Committee, in which it isunderstood but cannot be proven by the applicant, that the followingparagraph appears (which does not appear in the contested decision):'Account should be taken of the Greek producers' argument that theywere constrained by circumstances to sign the contracts with certainEuropean producers on the sale of cement and clinker. Consequently,the Commission considers that it should not impose fines on Titanand Heracles in respect of the agreements and concerted practicesrelating to the purchases of Greek cement and clinker referred to inpoint 56;  order that the Commission pay the costs. 55. Uniland (T-58/95) claims that the Court should:  annul at the very least Articles 1, 4(1), 4(2) and 4(3)(a) and 9 of thecontested decision;  in the alternative, reduce the fine imposed on it;  order the Commission to pay the costs, including the costs arising from thelodging and maintenance of the security for the fine. 56. Oficemen (T-59/95) claims that the Court should:  annul the contested decision in so far as it concerns it;  in the alternative, annul at least Articles 1, 2, 3(2), 4(1), 4(2), 4(3)(a), 5 and9 thereof in so far as they concern it;  in the further alternative, annul or reduce the fine imposed on it;  order the Commission to pay the costs, including the expenses of lodgingand maintaining the security for the fine. 57. In its reply, Oficemen (T-59/95) further asks the Court to call on the Commissionto disclose all documents relating to the correspondence and the reports includedin its case file in order to ascertain whether the mandatory formality that theCommission seek the opinion of the Advisory Committee, as required byRegulation No 17, was duly complied with. 58. Irish Cement (T-60/95) claims that the Court should:  annul the contested decision;  annul or reduce the fine imposed on it;  order the Commission to pay the costs. 59. Cimpor (T-61/95) claims that the Court should:  annul the contested decision in so far as it concerns it and, accordingly,annul the fine imposed upon it;  in the alternative, reduce that fine;  order the Commission to pay the costs;  order any necessary measures of inquiry. 60. SECIL (T-62/95) claims that the Court should:  annul the contested decision in so far as it concerns it and, accordingly,annul the fine imposed upon it;  in the alternative, reduce that fine;  order the Commission to pay the costs;  order any necessary measures of inquiry and, in particular, order theCommission to place on the file copies of the chapters of the SO whichwere not sent to it and all the necessary information to assess the legalityof Article 9 of the contested decision. 61. ATIC (T-63/95) claims that the Court should:  annul the contested decision in so far as it concerns it and, in particular,Article 1, Article 2(1) and (2)(b), and Article 5 thereof;  in the alternative, reduce the fine imposed on it;  order the Commission to pay the costs. 62. Titan (T-64/95) claims that the Court should:  annul or modify the contested decision in so far as it concerns it, byannulling or reducing the fine imposed on it;  order the Commission to pay the costs;  order such alternative or additional measures as justice may require. 63. Italcementi (T-65/95) claims that the Court should:  annul in whole or in part the contested decision in so far as it concerns it;  in the alternative, annul or reduce the fines imposed on it;  annul the Commission's decision of 23 September 1993 in so far as itterminates the international part of the proceeding initiated against the 12German undertakings and the 6 Spanish undertakings referred to therein;  order the Commission to pay the costs. 64. Holderbank (T-68/95) claims that the Court should:  annul the contested decision in so far as it concerns it;  in the alternative, annul or reduce the fine imposed on it;  order the Commission to pay the costs. 65. Hornos Ibéricos (T-69/95) claims that the Court should:  annul the contested decision in so far as it concerns it;  in the alternative, annul or reduce the fine imposed on it;  order the Commission to pay the costs;  request the Commission to produce the complete file and all the documentson which it relied in order to justify the contested decision and, inparticular, any analysis of the worldwide cement market situation, as well asany study carried out by the Commission on the economic reasons whichprompted the applicant to participate in the EPC;  authorise the applicant to examine those documents, in so far as they do notcontain any business secrets concerning other parties or do not refer toCommission internal documents. 66. Aker (T-70/95) claims that the Court should:  annul in whole or in part the contested decision in so far as it concerns it;  annul or reduce the fine imposed on it;  order the Commission to pay the costs. 67. EUROC (T-71/95) claims that the Court should:  annul in whole or in part the contested decision in so far as it concerns it;  annul or reduce the fine imposed on it;  order the Commission to pay the costs. 68. Cementir (T-87/95) claims that the Court should:  annul in whole or in part the contested decision;  in the alternative, annul or reduce the fine imposed on it;  order the Commission to pay the costs. 69. Blue Circle (T-88/95) claims that the Court should:  annul the contested decision;  in the alternative, annul in part, and accordingly reduce, the fine imposedon it;  order the Commission to pay the costs. 70. AGCI (T-103/95) claims that the Court should:  annul or modify the contested decision at least in so far as it concerns it, soas to cancel or reduce the fine imposed on it;  order the Commission to pay the costs;  order any other necessary measures. 71. Halkis (T-104/95) claims that the Court should:  give a judgment on the present action irrespective of any other relatedaction brought against the contested decision which could cloud the facts aswell as the legal assessment of the pleas in law in support of the actionbrought by the applicant;  annul the contested decision or, at the very least, vary it;  order the Commission to pay the costs. 72. In Cases T-25/95 and T-30/95, the Commission contends that the Court should:  declare the application inadmissible in so far as it concerns the rules on faircompetition;  dismiss the remainder of the application;  order the applicant to pay the costs. 73. In Cases T-26/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95,T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95,T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95,T-61/95, T-62/95, T-63/95, T-64/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95,T-88/95, T-103/95 and T-104/95, it contends that the Court should:  dismiss the application as unfounded;  order the applicant to pay the costs. 74. In Case T-65/95, it contends that the Court should:  declare the application inadmissible in so far as it is directed at theCommission's decision of 23 September 1993;  dismiss it as unfounded in so far as it is directed at the contested decision;  order the applicant to pay the costs. 75. The parties having been heard on the matter, the Court of First Instance (FourthChamber, Extended Composition) considers it is appropriate to join the presentcases for the purpose of the judgment, pursuant to Article 50 of its Rules ofProcedure. 76. All the actions seek annulment of the contested decision. One applicant,Italcementi, also seeks annulment of the decision of 23 September 1993 by whichthe Commission terminated the international part of the proceeding against 12German undertakings and six Spanish undertakings. The Court will first examineItalcementi's claim that the latter decision should be annulled.                                                                     The claim for annulment of the decision of 23 September 1993 inasmuch as itterminated the international part of the proceeding initiated against 12 Germanundertakings and six Spanish undertakings 77. On 23 September 1993 the Commission decided to drop the objections relating tothe international part of the SO against 12 German undertakings and six Spanishundertakings. It also decided to drop the objections relating to the nationalagreements and concerted practices against all addressees of the SO. On 27September 1993 it informed all of them of its decision to drop the objectionsrelating to the national agreements and concerted practices (see paragraphs 14 and15 above). 78. Italcementi (T-65/95) complains that the Commission did not send to it the decisionof 23 September 1993 to terminate the proceeding against 12 German undertakingsand six Spanish undertakings. It became aware of that decision upon reading thecontested decision, as the Commission's letter of 27 September 1993 (contesteddecision, recital 4, paragraph 2) did not make any reference to it. Nor does thecontested decision give reasons to justify that decision. Italcementi submits that itwas therefore deprived of the right to submit observations and to bring an actionagainst that decision. The latter decision was an essential act in preparation for thecontested decision, without which the contested decision would have been differentboth in form and substance. Italcementi considers that its action is admissible as achallenge to the decision of 23 September 1993. First, it has brought that actionwithin the period laid down in Article 173 of the EC Treaty (now, afteramendment, Article 230 EC), which began to run when that decision came to itsknowledge. Second, it has a legal interest in contesting that decision, because thatdecision is inconsistent with the joint responsibility which the Commission attributedto all the European cement producers and infringes the principle of non-discrimination. It also seeks an order that the Commission produce the text of itsdecision of 23 September 1993. It states that if its claim for annulment of the latterdecision is allowed, the contested decision must also be annulled. 79. The Court notes that the Commission's letter of 27 September 1993 does notmention the decision of 23 September 1993 to drop the international objectionsagainst 12 German undertakings and six Spanish undertakings, a fact which theCommission also acknowledged at the hearing in Case T-65/95. 80. It has, however, consistently been held that the acts or decisions against which anaction for annulment may be brought under Article 173 of the Treaty are thosewhich produce binding legal effects capable of affecting the interests of the partywho brings an action, by bringing about a significant change in his legal situation(see, inter alia, Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, andCimenteries CBR and Others v Commission, cited in paragraph 11 above, paragraph28). 81. In the present case, the Commission's decision to drop the international objectionsagainst 12 German undertakings and six Spanish undertakings did not produce sucheffects in regard to Italcementi. 82. It is not therefore an act against which it may bring an action for annulment underArticle 173 of the Treaty. Accordingly, its claim for annulment of that decision isinadmissible. 83. In any event, since Italcementi in reality complains of irregularities in an act thatwas preparatory to the contested decision  irregularities allegedly affecting thelegality of that decision because they constituted infringements of Italcementi'srights of defence, of the obligation to state reasons and of the principle of non-discrimination  those objections must be examined in the context of the claim forannulment of the contested decision (see paragraphs 461 to 471 below). It is settledlaw that any irregularities affecting a preparatory act which cannot itself be thesubject of an action for annulment may be relied upon in an action directed againstthe definitive act; in the present case, that act is the contested decision, the decisionof 23 September 1993 representing a preparatory step for it (IBM v Commission,cited in paragraph 80 above, paragraph 12; Cimenteries CBR and Others vCommission, cited at paragraph 11 above, paragraph 47, and Joined Cases T-39/92and T-40/92 CB and Europay v Commission [1994] ECR II-49, paragraphs 46 to62). 84. Since this claim is inadmissible, there is no need to grant Italcementi's applicationfor disclosure of the decision of 23 September 1993. The claim for annulment of the contested decision I  The pleas alleging various infringements of essential procedural requirements duringthe administrative procedure 85. All the applicants, except Halkis, have pleaded infringements of essentialprocedural requirements during the administrative procedure. Those pleas, 22 intotal, are not, however, submitted by each applicant. When considering each plea,the Court will specify which applicants have raised it. 86. The first plea alleges infringement of the rights of the defence in that the whole ofthe SO and the documents relating thereto were not accessible during theadministrative procedure. One applicant submits that the incomplete disclosure ofthe objections also infringes the principle of equal treatment. The second, third andfourth pleas allege infringement of the rights of the defence, infringement of theprinciple of equal treatment and infringement of Article 190 of the EC Treaty (nowArticle 253 EC) as a result of the Commission's abandonment of the nationalobjections and, in regard to some undertakings, of the international objections (seeparagraphs 14 and 15 above). The fifth plea alleges that the Commissioncommitted a procedural irregularity in dropping some of the internationalobjections. The sixth plea alleges that the imprecise and incomplete nature of theSO infringes the rights of the defence. The seventh plea is grounded oninfringement of the rights of the defence and of Council Regulation No 1 of 15April 1958 determining the languages to be used by the European EconomicCommunity (OJ, English Special Edition 1952-1958, p. 59) because certaindocuments sent to the applicants during the administrative procedure were nottranslated. The eighth plea alleges infringement of the rights of the defence as aresult of the incorrect translation and citation of some documents. The ninth pleaalleges infringement of the rights of the defence and of Article 11(1) of RegulationNo 99/63 because of the allegedly inadequate period for replying to the SO. The10th plea alleges infringement of the rights of the defence, of Article 19(1) ofRegulation No 17, and of Articles 7(1), 8(1) and 9 of Regulation No 99/63 becauseof the faulty organisation of the hearings. The 11th plea alleges infringement of theprinciple of ex officio investigation. The 12th plea is based on infringement of therights of the defence in that the duration of the administrative procedure wasexcessive. The 13th plea alleges infringement of Article 6 of the EuropeanConvention for the Protection of Human Rights and Fundamental Freedoms of 4November 1950 (hereinafter 'the ECHR). The 14th plea alleges that theCommission failed to observe the principle of the presumption of innocence. The15th plea alleges infringement of the parties' right not to give evidence againstthemselves. The 16th plea alleges infringement of Article 10 of Regulation No 17in that the Commission's consultation of the Advisory Committee was defective.The 17th, 18th, 19th and 20th pleas allege infringement, respectively, of theprinciples of subsidiarity, sound administration, legal certainty and protection oflegitimate expectations during the administrative procedure. The 21st plea allegesthat the Commission infringed the principle of collegiality when it adopted thecontested decision. Finally, the 22nd plea alleges defective authentication andnotification of the contested decision. The first plea: infringement of the rights of the defence and of the principle of equaltreatment in that the whole of the SO and the documents relating thereto were notaccessible during the administrative procedure 87. In this plea, complaint is made that the Commission did not ensure that theapplicants had access to the whole of the SO (B); that in failing to provide accessto certain parts of the SO and numerous documents in the file, the Commissionprevented the applicants from adducing exculpatory evidence (C); that in thecontested decision it used incriminating documents which had not been disclosedto the applicants or were not referred to in the SO (D); and, lastly, that it failedto disclose documents which, although not part of the file, might nevertheless havebeen useful to the defence (E). Before considering the relevant arguments, somepreliminary observations are necessary (A). A  Preliminary observations 88. It is necessary to recall the manner in which the objections were notified during theadministrative procedure and the conditions under which the addressees of the SOhad access to the file during that procedure. 89. On the basis of the documents and information obtained by its officials duringinvestigations carried out at European cement producers and their tradeassociations between April 1989 and July 1990, and based on replies to requests forinformation sent under Article 11 of Regulation No 17 and to a statement ofobjections relating to Article 15(1) of that regulation (see paragraph 2 above), theCommission concluded that there was probably a system of agreements orconcerted practices, both at European level and at that of various Member States,between the European cement producers. 90. In those circumstances, the Commission decided to initiate proceedings forinfringement of Article 85(1) of the Treaty against 76 undertakings and associationsof undertakings in the cement industry. In the course of those proceedings, inNovember 1991 it sent to all the undertakings and associations of undertakings theSO provided for in Article 2(1) of Regulation No 99/63. 91. The first page of the SO refers to three case numbers: 27.997, 33.126 and 33.322.Cases 33.126 and 33.322 are identified as the 'Cement cases. Case 27.997concerns the 'Common Price and Marketing Arrangements (the 'CPMA). Theyare pricing arrangements and conditions of sale adopted in the context of theCement Makers' Association (the 'CMF), a United Kingdom association, whichwere notified by it to the Commission in June 1973. 92. The SO draws a distinction between two types of objection: practices atinternational level ('the international agreements and concerted practices) and practices at national level ('the national agreements and concerted practices). Itis subdivided into two principal parts: 'The Facts (Part I) and 'Legal Assessment(Part II). 'The Facts has nine chapters. Chapter 1 deals with the cement market.Chapter 2 concerns the international agreements and concerted practices. Chapters3 to 9 relate to the various national agreements and concerted practices: Italy(Chapter 3), United Kingdom (Chapter 4), France (Chapter 5), Germany (Chapter6), Greece (Chapter 7), Spain (Chapter 8) and Portugal (Chapter 9). The 'LegalAssessment in the SO is subdivided into three sections (A, B and C). Section A,headed 'Article 85(1) of the EEC Treaty, contains Chapters 10 to 19 of the SO.Chapters 10 to 12 relate to the international agreements and concerted practicesand Chapters 13 to 19 relate to the various national agreements and concertedpractices: Italy (Chapter 13), United Kingdom (Chapter 14), France (Chapter 15),Germany (Chapter 16), Greece (Chapter 17), Spain (Chapter 18) and Portugal(Chapter 19). Section B concerns the inapplicability of Article 85(3) of the Treatyand Section C the applicability of Article 15(2) of Regulation No 17. 93. The CPMA (file 27.997), being the subject of national objections, are dealt with inthe chapters relating to the United Kingdom (Chapters 4 and 14). 94. The chapters relating to the international agreements and concerted practices(Chapters 2, 10, 11 and 12) and the full index of the SO were sent to each of theapplicants. The chapters relating to the national agreements and concertedpractices (Chapters 3 to 9 and 13 to 19) were sent only to the undertakings andassociations of undertakings established in the Member State in question. Thus,addressees of the SO who were established in a Member State in which there was,according to the SO, a national agreement or concerted practice between thecement producers of that State received the chapters of the SO relating to theinternational agreements and concerted practices and the chapters of the SOconcerning that national agreement or concerted practice, but not the chaptersconcerning the other national agreements and concerted practices. An addresseeof the SO who was established in a Member State which had not been specificallydealt with in the SO received only the chapters of the SO relating to theinternational agreements and concerted practices. 95. The Commission did not append to the SO the documents supporting itsconclusions or the other documents which it considered relevant. In view of thelarge number of documents in question, it prepared a box of documents, which wasmade available to each addressee of the SO when it inspected the file at the endof 1991 (hereinafter 'the Box). By that time, at the latest, the addressees of theSO had received the List (see paragraph 5 above). Rugby (T-53/95) states,however, that it received the List only with the Commission's letter of 4 June 1992. 96. The List (see paragraph 5 above), which referred to the three case numbers(27.997, 33.126 and 33.322), adopted a consecutive numbering system for thedocuments (from 1 to 3147 for file 33.322, from 1 to 20845 for file 33.126, and from 1 to 40 for file 27.997); an identification code for the documents (from 1 to 12); anaccessibility code for the documents ('A (accessible), 'PA (partly accessible) and'NA (not accessible)); the names of the parties to whom the documents inquestion were accessible or not accessible; and the indication of the loose-leafbinder in which the documents in question were kept. 97. It is apparent from the List (see paragraph 5 above) that the files in the 'Cementcases (33.126 and 33.322) contained the following documents: objections anddocuments cited in support of them (Identification Code '1); requests forinformation pursuant to Article 11 of Regulation No 17 and replies to them(Identification Codes '4.1 and '4.2); correspondence with certain undertakingsoutside the scope of Article 11 of Regulation No 17 (Identification Code '5.1);investigation reports and documents annexed to such reports (Identification Code'6.1); published documents (Identification Code '9); and internal Commissiondocuments (Identification Code '10). The file in the CPMA case (IV/27.997)contained a notification (Identification Code '2); the Commission's internaldocuments (Identification Code '10); and the opinion of the Advisory Committee(Identification Code '11). 98. All the documents on the List (see paragraph 5 above) will be referred to as 'theinvestigation file. 99. As regards access to the investigation file during the administrative procedure, eachundertaking or association of undertakings had access to the documents which theCommission had obtained from that undertaking or association of undertakings,together with the documents relating to the chapters of the SO which had beensent to it. As all the applicants in the present cases received the chapters relatingto the international agreements and concerted practices (SO, chapters 2, 10, 11 and12), they all had access to the documents classified as accessible on the List (seeparagraph 5 above) that related to those chapters of the SO. 100. The Box (see paragraph 95 above) did not contain all the documents relating to theinternational agreements and concerted practices which had been classified on theList (see paragraph 5 above) as accessible to all addressees ('A or 'A: all or 'A:European producers). According to the Commission, it contained the mostimportant documents concerning the international agreements and concertedpractices. 101. As regards access during the administrative procedure to the documents relatingto the national agreements and concerted practices, the Commission put togethera national file for each country concerned by the national chapters of the SO, thatis to say, Italy, the United Kingdom, France, Germany, Greece, Spain and Portugal.The applicants had access only to the national file of the Member State in whichthey were established. 102. Any request for additional access to the national chapters of the SO and/or theinvestigation file was refused by the Commission during the administrativeprocedure. The Commission's attitude gave rise to various actions before the Courtof First Instance in February 1992 (see paragraphs 6 and 7 above). 103. By decision of 23 September 1993, the Commission decided to drop the objectionsrelating to the international agreements and concerted practices and to terminatethe proceedings relating to those chapters of the SO. The effect of that severanceof the objections was that the CPMA case (27.997) was terminated, the objectionrelating to the CPMA being a national objection referred to in the chapters of theSO relating to the United Kingdom (chapters 4 and 14). For that reason, thecontested decision concerns solely cases '33.126 and 33.322  Cement. B  The notification of part of the SO 104. The following 30 applicants complain that the Commission did not serve the wholeof the SO on them: CBR (T-25/95), Cembureau (T-26/95), FIC (T-30/95), ENCI(T-31/95), VNC (T-32/95), Ciments Luxembourgeois (T-34/95), Dyckerhoff(T-35/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95),Aalborg (T-44/95), Alsen-Breitenburg (T-45/95), Nordcement (T-46/95), BDZ(T-48/95), Buzzi (T-51/95), Valenciana (T-52/95), Asland (T-55/95), Castle(T-56/95), Heracles (T-57/95), Uniland (T-58/95), Oficemen (T-59/95), Irish Cement(T-60/95), Cimpor (T-61/95), SECIL (T-62/95), ATIC (T-63/95), Italcementi(T-65/95), Aker (T-70/95), EUROC (T-71/95), Blue Circle (T-88/95) and the AGCI(T-103/95). They consider, first, that since the SO is presented as a singledocument, the whole of that document should have been sent to them. Second,they submit that the SO itself states that it was impossible to separate the nationalagreements and concerted practices from the international ones; the addressees ofthe SO should therefore have been sent all the national chapters in it. Lastly,Cembureau considers that the failure to send the whole of the SO infringes theprinciple of equal treatment. 1. The inseparability of the SO and the applicants' right of access to the whole ofit 105. The applicants in question submit that under Article 2(1) of Regulation No 99/63and Article 19(1) of Regulation No 17 they should have received, during theadministrative procedure, all the chapters of the SO relating to the nationalagreements and concerted practices. Where the Commission issues a single SO, allthe addressees of the SO should be able to peruse all the objections. 106. The Court points out that the provisions to which the applicants refer, which laydown an obligation on the Commission to notify the undertakings and associations of undertakings in writing of the objections raised against them, enshrine thefundamental principle of Community law that the rights of the defence must berespected in all proceedings in which sanctions may be imposed. The properobservance of that general principle requires that the undertakings and associationsof undertakings concerned be afforded the opportunity during the administrativeprocedure to make known their views on the truth and relevance of the facts,charges and circumstances relied on by the Commission (Case 85/76Hoffman-La Roche v Commission [1979] ECR 461, paragraph 11; Cimenteries CBRand Others v Commission, cited at paragraph 11 above, paragraph 39; Case T-30/91Solvay v Commission [1995] ECR II-1775, paragraph 59; T-36/91 ICI v Commission[1995] ECR II-1847, paragraph 69). Thus, the SO must give the undertakings andassociations of undertakings concerned all the information necessary to enablethem properly to defend themselves, before the Commission adopts a final decision(see, inter alia, Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 andC-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECRI-1307, paragraph 42, hereinafter referred to as 'Woodpulp II; Case T-352/94 Mooch Domsjö v Commission [1998] ECR II-1989, paragraph 63). 107. In the present case, the Commission did not include in the contested decision theobjections of the SO relating to the national agreements and concerted practices.It had taken the decision on 23 September 1993 to drop the objections relating tothose agreements and concerted practices and to terminate the proceeding relatingto the corresponding chapters of the SO (see paragraph 14 above). 108. In those circumstances, the applicants cannot use inseparability of the SO as aground for arguing that their rights of defence were infringed by the failure to sendthe chapters relating to the national agreements and concerted practices other thanthe chapter relating to the Member State in which the particular addressee of theSO was established. An infringement of the rights of defence during theadministrative procedure must be assessed in the light of the objections adoptedby the Commission in the SO and in the contested decision (see, to that effect, thejudgments cited in paragraph 106 above, T-30/91 Solvay v Commission, paragraph60, and T-36/91 ICI v Commission, paragraph 70). 109. The argument that because the SO is inseparable the Commission was obliged tosend to the addressees of the SO all the objections in it must therefore be rejected. 2. The existence of an inseparable link between the national and internationalagreements and concerted practices and the applicants' right of access to the wholeof the SO 110. The applicants referred to in paragraph 104 above submit that the failure to sendto them the chapters of the SO relating to the national agreements and concertedpractices, other than the chapter relating to the Member State in which the relevant addressee of the SO was established, infringes their rights of defence sincethe Commission inferred the existence of the international agreements andconcerted practices  the Cembureau agreement and its implementing measures from evidence which appeared in the chapters of the SO relating to the nationalagreements and concerted practices. As presented in the SO, the existence andoperation of the international agreements and concerted practices depended alsoon the existence of the national agreements and concerted practices implementingthat agreement. The national and international agreements and concerted practiceseven constituted a single agreement. The inseparable link between the national andinternational agreements and concerted practices is apparent from the wording ofthe SO. Thus, point 93(b) of the SO stated that 'it [was] impossible to separate thenational agreements, decisions and concerted practices from the European ones,since both form an inseparable whole. Furthermore, paragraphs 58 and 59 of theSO (see paragraph 119 below) emphasise the inseparable link between the variousinfringements. The Commission's decision of 23 September 1993 to drop theobjections relating to the national agreements and concerted practices and toterminate the proceeding relating to those chapters of the SO did not cure theinfringement of the rights of the defence, because there is an undeniable linkbetween the objections relating to the national agreements and concerted practicesand those relating to the international agreements and concerted practices. 111. The Court points out that the chapters of the SO relating to the nationalagreements and concerted practices were presented as separate chapters (chapters3 to 9 and 13 to 19), which enabled the Commission to send 'partial SOs to thevarious addressees of the SO. 112. Even though presented in that way, the chapters relating to the nationalagreements and concerted practices contain all the information concerning theinternational agreements and concerted practices. Thus, the French chapter in 'TheFacts of the SO (chapter 5, paragraph 44(f)) states that exports of Greek cementwere discussed in the office of the Syndicat National des Fabricants de Ciment etde Chaux ('SNFCC) and that the 'dates of the meetings of the office ... are to becompared with the dates of the activities of the Cembureau Task Force orEuropean Task Force referred to in section 2 [of chapter 2 of the SO relating tothe international agreements and concerted practices]. Similarly, the chapterrelating to the United Kingdom in 'The Facts of the SO contains a paragraphconcerning 'the decisions adopted by the CMF and the CPMA against Greekcement imports (SO, chapter 4, point 39). The chapter relating to the UnitedKingdom in the 'Legal Assessment of the SO states as follows: 'All the measuresadopted by the United Kingdom producers within the CMF and the CPMA, asdescribed in points 20 and 39 and examined in point 61(h), constituted agreementsand/or concerted practices that restrict competition within the meaning of Article85(1) (SO, chapter 14, point 75). The Court notes that points 20 and 61(h) of theSO, to which that extract refers, are in chapters 2 and 10 of the SO relating to theinternational agreements and concerted practices and are entitled 'The carrot actions adopted by Cembureau Task Force: Absorption of destabiliser'stonnage and 'Cembureau Task Force or European Task Force. 113. In the chapter in 'The Facts of the SO relating to Germany there is a partregarding the information exchanges between SFIC and BDZ (chapter 6, point49(a)(iii)) and a part regarding the Franco-German agreement and/or concertedpractice (chapter 6, point 49(b)(iv)). Those points are reproduced in the 'LegalAssessment of the SO relating to Germany (chapter 16, point 84). The chaptersof the SO dealing with Italy contain a detailed discussion of the agreementconcluded between the Italian producers and Calcestruzzi in order to protect theItalian industry against imports of Greek cement (SO, chapter 3, point 35; chapter13, point 70(b)). The chapter in 'The Facts of the SO relating to Greece dealswith the problem of exports from it (SO, chapter 7, point 53). Finally, the chaptersdealing with Spain and Portugal contain a part which deals with the Hispano-Portuguese agreements and/or concerted practices (SO, chapter 8, point 55(c);chapter 9, point 56(b); chapter 18, point 87; chapter 19, point 90). 114. The references to the international agreements and concerted practices and theexplanations which have been supplied concerning those agreements and concertedpractices in the chapters relating to the national agreements and concertedpractices of the SO do not, however, mean that the Commission was obliged tosend the national chapters to the applicants before adopting the contested decision,which contains findings of infringements solely in regard to the internationalagreements and concerted practices. An examination of the chapters relating to thenational agreements and concerted practices to which the applicants had not hadaccess was not necessary for the preparation of their defence against theinternational objections, since the chapters relating to the national agreements andconcerted practices did not contain incriminating evidence relating to theinternational agreements and concerted practices that was not also set out in theinternational chapters of the SO. The Court will consider below whether thenational chapters of the SO contained any evidence exculpating the applicantsconcerned. 115. Furthermore, the applicants cannot allege that in the SO the Commission based theexistence of the Cembureau agreement, and the measures to implement it, on thenational agreements and concerted practices. On the contrary, the Cembureauagreement and measures to implement it at international level were considered inthe SO to be separate infringements, on the basis of the documents referred to inthe international chapters of the SO (chapters 2 and 10 to 12). The Court pointsout in that regard that the chapters of the SO relating to the internationalagreements and concerted practices (chapters 2 and 10 to 12) do not contain anyreference to the national agreements and concerted practices. 116. However, it is apparent from the national chapters, and in particular the chapterdealing with Germany, that, for their proper operation, the national agreements and concerted practices were dependent on the existence of agreements andconcerted practices at international level. 117. Thus, in the chapter in the 'Legal Assessment relating to Germany, theCommission explained (SO, chapter 16, point 84): 'German cement producers wereall the more interested in avoiding exports to other EEC countries whose producerswere members of Cembureau, since this would violate the Cembureau principlediscussed in the first part of this Statement of Objections. It should be noted thata [German] market sharing agreement of this extent could never have beenimplemented with such rigidity and stability throughout the last thirty years, if theGerman market had not been isolated from cement imports by means of thisprinciple. The principle, by eliminating or limiting transfrontier flows, was thenecessary condition of maintaining the restrictive agreements and practices in thoseMember States, whose producers were members of Cembureau. Exchange ofsensitive information between the French and German cement organisations andcoordination of exports to the Benelux countries are among the factors that helpedthe German cement leaders maintain a tight control of their market throughout theyears and affected at the same time cement interstate trade. ... It follows that the[German] agreements on the exchange of market information and on sharing localmarkets and customers, both in themselves and as the consequence or complementon a local or regional basis of the Cembureau principle of not transhipping tointernal European markets, appreciably affect trade between Member States byconsolidating national compartmentalisations which obstruct the economicinterpenetration desired by the Treaty. 118. Irrespective of whether, as the Commission alleges, the inseparable link betweenthe national agreements and concerted practices and the international agreementsand concerted practices to which paragraph 93(b) of the SO refers concerns onlythe setting of the level of the fine, the Court finds that in any event this link existsin one sense only: the national agreements and concerted practices display, as 'theconsequence or complement on a local or regional basis of the Cembureauagreement, an inseparable link with that agreement, whereas the Cembureauagreement and the measures for implementing it at international level in no waydepend on the existence of the national agreements and concerted practices. 119. Nor, lastly, can the applicants base an argument on points 58 and 59 of the SO.Point 58, which introduces the legal assessment of the SO, states that 'theagreements and concerted practices described above are caught by the prohibitionlaid down in Article 85(1), and the undertakings in question are undertakings withinthe meaning of that Article, since they carry out economic activities in the cementproduction and marketing sectors. Although that point is supposed to apply to allthe objections referred to in the SO, both at national level and at internationallevel, it does not show that there is any link between all those objections. It merelyconcerns the application of Article 85 of the Treaty to all those objections and thedefinition of 'undertaking for the purposes of that provision. Point 59 of the SO, which is the first point in the legal assessment of the international agreements andconcerted practices described in chapter 2, sections 1 and 2 (that is to say, theCembureau agreement and the ETF), states: 'Within the framework of andthrough Cembureau, the European cement producers agreed on plans,arrangements and measures, adopted under Cembureau's institutional structure andwithin the framework of a system of meetings and continuous bilateral andmultilateral contacts promoted by the Cembureau institutions, designed to ensurenon-encroachment on respective home markets, the sharing of markets inaccordance with quotas or target volumes or temporary measures designed toregulate and control sales volumes, and the exchange of information on prices andexports and imports so as to enable them to coordinate their action moreeffectively. The Commission considers that all these arrangements adopted withinthe framework of Cembureau and the bilateral and multilateral meetings andcontacts constituted a single and continuous agreement, as from the datesindicated below, within the meaning of Article 85(1). Point 59 makes no referencewhatsoever to the objections set out in the national chapters of the SO. The 'singleagreement referred to in it concerns only the international agreements andconcerted practices. The fact that the international agreements and concertedpractices were characterised as a 'single agreement does not therefore show thatthe international and national agreements and concerted practices were inseparablylinked, as alleged. 120. It follows that the existence of the Cembureau agreement and its implementingmeasures is not based, in the SO, on the existence of the national agreements andconcerted practices. The inseparable link between the international and nationalagreements and concerted practices, as alleged by some applicants (see paragraph110 above), has not therefore been proved. 121. The applicants' argument that the existence of that link made it necessary for themto peruse the national chapters of the SO in order to prepare their defence to theobjections relating to the international agreements and concerted practices musttherefore also be rejected. 3. Infringement of the principle of equal treatment 122. Cembureau (T-26/95) considers that there has been an infringement of theprinciple that all parties implicated in the SO should be treated equally because thewhole of the SO was not notified to all the parties concerned. 123. That argument must be rejected. The principle of equal treatment precludes theapplication of different rules to comparable situations or the application of thesame rule to different situations (Case C-279/93 Schumacker [1995] ECR I-225,paragraph 30, and Case C-107/94 Asscher [1996] ECR I-3089, paragraph 40).However, in the present case, all the addressees of the SO were not in the same situation: although some of them, such as Cembureau, were the subject only ofinternational objections, others were deemed to have participated in nationalagreements and concerted practices in the Member State in which they wereestablished. The Commission was therefore entitled to send to the latter categoryof addressees the national chapters relating to the Member State in which theywere established as well as the international chapters of the SO. C  Inaccessibility of some parts of the SO and of some documents in theinvestigation file which might have contained exculpatory evidence 124. The following 39 applicants complain that the Commission did not grant themaccess to parts of the SO and of the investigation file which might have containedexculpatory evidence: CBR (T-25/95), Cembureau (T-26/95), FIC (T-30/95), ENCI(T-31/95), VNC (T-32/95), Ciments Luxembourgeois (T-34/95), Dyckerhoff(T-35/95), SFIC (T-36/95), Vicat (T-37/95), Cedest (T-38/95), Ciments Français(T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), Alsen-Breitenburg (T-45/95), Nordcement (T-46/95), BDZ (T-48/95), Unicem (T-50/95),Buzzi (T-51/95), Valenciana (T-52/95), Rugby (T-53/95), Asland (T-55/95), Castle(T-56/95), Heracles (T-57/95), Uniland (T-58/95), Oficemen (T-59/95), Irish Cement(T-60/95), Cimpor (T-61/95), SECIL (T-62/95), ATIC (T-63/95), Titan (T-64/95),Italcementi (T-65/95), Holderbank (T-68/95), Hornos Ibéricos (T-69/95), Aker(T-70/95), EUROC (T-71/95), Cementir (T-87/95), Blue Circle (T-88/95) and AGCI(T-103/95). 125. They allege that in failing to give them access to those items the Commissioninfringed their rights of defence. 126. The Court points out that, leaving aside the question whether they were refusedaccess to an item of exculpatory evidence in a chapter of the SO, the applicantshave not proved that the Commission infringed their rights of defence by failing tosend to them during the administrative procedure the chapters of the SO relatingto the Member States other than the State in which the addressee of the SO inquestion was established (see paragraphs 104 to 123 above). That being the case,it is necessary first to examine whether access to the investigation file was givenunder proper conditions during the administrative procedure (1). The Court willthen set out the measures of organisation of procedure adopted by it in the contextof the argument in question (2). The analytical framework for assessing anargument based on the inaccessibility of an alleged item of exculpatory evidenceduring the administrative procedure will then be explained (3). That analysis willcover both the documents in the investigation file that were not accessible and theparts of the SO that were not communicated. The applicants concerned considerthat both the documents in the investigation file and the parts of the SO that werekept secret during the administrative procedure might have contained exculpatoryevidence. Once the principles have been established, they will be applied to the case in point (4). Lastly, the Court will examine the general arguments relating toinfringement of the rights of the defence during the administrative procedure, thosearguments having been raised in pleadings lodged following the measures oforganisation of the procedure (5). 1. Organisation of access to the file during the administrative procedure 127. Some applicants criticise the composition and the inspection of the file to whichthey were given access during the administrative procedure. They state that therewere irregularities in the organisation of access to the investigation file (1.1) evenin regard to accessible documents. The 39 applicants referred to in paragraph 124above also submit that the organisation of access to the file during theadministrative procedure was irregular because they were not given access to somedocuments (1.2). 1.1 Irregularities in the organisation of access to the file in regard to accessibledocuments 128. ENCI, VNC, Dyckerhoff, Uniland, Oficemen, Cimpor, Holderbank, Aker andEUROC contend that the organisation of access to the file was irregular even inregard to the documents to which they were entitled to have access. The defectsto which they refer allegedly show that their rights of defence were infringed duringthe administrative procedure and that the contested decision should therefore beannulled. 129. ENCI and VNC complain that the Commission did not include in the investigationfile the documents that it had obtained from them during the administrativeprocedure, even though they were exculpatory documents. 130. However, the Court finds that ENCI and VNC have not proved that theirallegations are correct. Moreover, even if they were correct, their rights of defencewould not have been infringed, since exculpatory documents obtained from themby the Commission could have been put in evidence by them during theadministrative procedure. Their argument must therefore be rejected. 131. Holderbank asserts that it did not have sufficient access to the file owing to the factthat the pagination of some copies of accessible documents was illegible. As thedocuments cited in the SO were identified solely by reference to their paginationin the Commission's file, it was unable to determine the evidence used by theCommission in support of those objections and, accordingly, to properly prepareits defence. 132. The Court points out that the applicant is not claiming that the documents to whichit had access were illegible, but solely that their pagination was illegible. However,in the parts of the SO relating to the Cembureau agreement and the ETF, whichare the only parts which relate to the objections raised against Holderbank in thecontested decision (Articles 1 and 4), the various items of evidence were identifiednot by reference to any system of pagination, but by reference to their nature(minutes of a meeting, internal memorandum, letter, telex, etc.), their date and/ororigin. Furthermore, there is no dispute that the documents in the Box (seeparagraph 95 above) followed the order of the SO. Any illegibility of the paginationof some copies of documents could not therefore have prevented the applicantfrom linking those documents to the passage in the SO where they were mentioned.Consequently, Holderbank's argument must be rejected. 133. Uniland and Oficemen submit that the SO did not identify the documents byreference to the numbering which had been given to them in the investigation file.It was therefore extremely difficult to link documents in the Box (see paragraph 95above) to the relevant passages in the SO. This latter criticism is also made byHolderbank, Hornos Ibéricos, Aker and EUROC. 134. It is not disputed that the documents in the Box (see paragraph 95 above) followedthe order of the SO. Furthermore, in the SO the documents were identified byreference to their nature, date and/or origin. In those circumstances, there couldhave been no particular problems in linking the documents in the Box to therelevant passages of the SO. The argument must therefore be rejected. 135. ENCI, VNC and Uniland observe that some of the documents in the Box (seeparagraph 95 above) were illegible. Dyckerhoff complains of the illegibility of someof the documents. It states that when, by letters of 24 and 31 January 1992, itrequested the Commission to send it a legible copy of the documents in question,the new copies sent by the Commission on 11 February 1992 were just as illegibleas the first. 136. The Court points out, however, that there was nothing to prevent ENCI, VNC andUniland from requesting the Commission to send them a new copy of thedocuments which they had difficulty in reading. Since they did not take thatopportunity during the administrative procedure, they cannot now claim that theirrights of defence were infringed. As regards the alleged illegibility of the documentsto which Dyckerhoff was given access during the administrative procedure, theCourt points out that, as the applicant acknowledges, the Commission sent to it byletter of 11 February 1992 a new copy of the documents alleged in its letters of 24and 31 January 1992 to be illegible. If those new copies proved, in turn, to beillegible, that is because of the poor quality of the originals, for which theCommission cannot be held responsible. On any view, the fact that originaldocuments are illegible does not mean that the applicants' rights of defence wereinfringed: the position was the same for both the applicants and the Commission. The Commission did not therefore have better knowledge of documents that wereillegible or hardly legible than the applicants could have gained through consultingthose documents. The arguments of ENCI, VNC, Dyckerhoff and Uniland musttherefore be rejected. 137. Cimpor alleges that the List (see paragraph 5 above) contains errors. By way ofexample, it states that it had only partial access to the note on the meeting of 23January 1987 between the Portuguese producers and the Spanish association(contested decision, recital 21, paragraph 4; documents 33.322/1406 to 1408), eventhough in the List it was stated to be one of the documents which was accessiblein its entirety. 138. The Court points out that, on the List (see paragraph 5 above), documents33.322/1406 to 1408 are indeed included amongst the documents stated to beaccessible to Cimpor. However, Cimpor has not proved that it had only partialaccess to those documents. Its argument therefore has no factual basis and musttherefore be rejected. For the sake of completeness, the Court points out that theapplicant, to which access to the originals of those documents was offered followingthe measures of organisation of procedure of 18 and 19 June 1997 and which couldhave taken that opportunity to explain in what respect it had had partial access tothe documents in question and how its rights of defence were infringed, ceased toput forward that argument. 139. It follows from all the foregoing that the applicants have not proved that theorganisation of the access to the file was irregular in regard to the documents thatwere accessible during the administrative procedure. 1.2 Organisation of access to the file was irregular because the applicants did nothave access to certain documents 140. The 39 applicants referred to in paragraph 124 above complain that theCommission did not give them access to certain documents. Referring to thejudgment in Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711,paragraph 54, they state that during the administrative procedure access was notgiven to all documents in the investigation file other than the Commission's internalnotes and documents containing business secrets or other confidential information.Furthermore, contrary to the principles laid down in the Soda Ash judgments, inparticular in those cited in paragraph 106 above, T-30/91 Solvay v Commission(paragraphs 93 and 94) and T-36/91 ICI v Commission (paragraphs 103 and 104),the Commission did not provide them with non-confidential versions of thedocuments which, it claimed, contained business secrets or other confidentialinformation, or prepare a list allowing the undertakings and associations ofundertakings concerned to assess whether it was appropriate to request access tospecific documents. Since the documents which continued to be inaccessible might have contained exculpatory evidence, those defects should lead to a finding ofinfringement of the rights of the defence and to annulment of the contesteddecision. CBR, FIC, ENCI, VNC, Dyckerhoff, SFIC, Heidelberger, Asland, SECIL,ATIC and Hornos Ibéricos also refer to the general principle of equality of arms(judgments cited in paragraph 106 above, T-30/91 Solvay v Commission, paragraph83, and T-36/91 ICI v Commission, paragraph 93). 141. In the present case, it is common ground that, during the administrative procedure,the applicants were not granted access to the large majority of documents in theinvestigation file. Access to around three quarters of the documents itemised on theList (see paragraph 5 above) was denied. 142. Access to the file in competition cases is intended to allow the addressees of an SOto examine evidence held by the Commission so that they are in a positioneffectively to express their views on the conclusions which the Commission reachesin the SO on the basis of that evidence (see, most recently, Case C-51/92 PHercules Chemicals v Commission [1999] ECR I-0000, paragraph 75). Access to thefile is thus one of the procedural guarantees intended to protect the rights of thedefence and to ensure, in particular, that the right to be heard provided for inArticle 19(1) and (2) of Regulation No 17 and Article 2 of Regulation No 99/63can be exercised effectively. Observance of those rights in all proceedings in whichsanctions may be imposed is a fundamental principle of Community law which mustbe respected in all circumstances, even if the proceedings in question areadministrative proceedings (Cimenteries CBR and Others v Commission, cited inparagraph 11 above, paragraphs 38 and 39, T-65/89 BPB Industries and BritishGypsum v Commission [1993] ECR II-389, paragraph 30, T-30/91 Solvay vCommission, cited in paragraph 106 above, paragraph 59, T-36/91 ICI vCommission, cited in paragraph 106 above, paragraph 69, and Case T-37/91 ICI vCommission [1995] ECR II-1901, hereinafter 'T-37/91 ICI v Commission,paragraph 49) 143. In the defended proceedings for which Regulation No 17 provides it cannot be forthe Commission alone to decide which documents are of use for the defence ofparties involved in a proceeding under Article 85(1) of the Treaty (Cases T-30/91Solvay v Commission, paragraph 81, T-36/91 ICI v Commission, paragraph 91).Having regard to the general principle of equality of arms, it is not acceptable forthe Commission to be able to decide on its own whether or not to use documentsagainst the applicants, when the applicants had no access to them and weretherefore unable to decide whether or not to use them in their defence (judgmentscited in paragraph 106 above, Cases T-30/91 Solvay v Commission, paragraph 83,and T-36/91 ICI v Commission, paragraph 93). 144. It follows that in order to allow the undertakings and associations of undertakingsin question to defend themselves effectively against the objections raised againstthem in the SO, the Commission has an obligation to make available to them the entire investigation file, except for documents containing business secrets of otherundertakings, other confidential information and internal documents of theCommission (judgments in Hercules Chemicals v Commission, cited in paragraph140 above, paragraph 54, and BPB Industries and British Gypsum v Commission,cited in paragraph 142 above, paragraph 29; Opinions of Advocate General Légerin Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECRI-865, at I-867, point 116, and in Case C-185/95 P Baustahlgewebe v Commission[1998] ECR I-8417, at I-8422, point 150). 145. In the light of those principles, it is necessary to determine whether theCommission gave proper access to its investigation file during the administrativeprocedure. 146. As CBR and Heracles observe, the Commission appears to have based its refusalto grant access to the entire investigation file on considerations stemming from theconfidential nature of the documents in question. It thus seems to have taken theview during the administrative procedure that a document obtained by it in theexercise of the powers conferred on it by Regulation No 17 was accessible to thirdparties only where it had relied on it as evidence against them in the SO (see theorder in Cimenteries CBR and Others v Commission, cited in paragraph 8 above,paragraph 42, and the judgment in Cimenteries CBR and Others v Commission, citedin paragraph 11 above, paragraph 30). 147. The Court points out that the right of undertakings and associations ofundertakings to protect their business secrets must be balanced against thesafeguarding of the right to have access to the whole of the file (judgments citedin paragraph 106 above, Cases T-30/91 Solvay v Commission, paragraph 88, and T-36/91 ICI v Commission, paragraph 98). Consequently, if the Commission took theview that certain documents in its investigation file contained business secrets orother confidential information, it should have prepared a non-confidential versionof the documents in question or had them prepared by the undertakings orassociations of undertakings from which they came (judgment cited in paragraph106 above, Cases T-30/91 Solvay v Commission, paragraph 92, and Case T-36/91ICI v Commission, paragraph 102). If preparation of non-confidential versions ofall the documents were to prove difficult, it should have sent to the partiesconcerned a sufficiently precise list of the documents posing problems so as toenable the undertakings or associations of undertakings to ascertain, withknowledge of the facts, whether the documents described were likely to be relevantfor its defence (see Cases T-30/91 Solvay v Commission, paragraphs 93 and 94, andT-36/91 ICI v Commission, paragraphs 103 and 104). 148. The Court finds that, in the present case, the Commission did not act in that way. First, it did not make available to the undertakings and associations of undertakingsconcerned a non-confidential version of the documents which, it claimed, containedbusiness secrets or other confidential information. Second, as Cembureau, ENCI, VNC, Dyckerhoff, Ciments Français, Valenciana, Asland, Uniland, Oficemen, IrishCement, ATIC, Holderbank, Hornos Ibéricos and AGCI have correctly stated, thelist of documents which the Commission provided to the addressees of the SO wasnot sufficiently precise. Since it did not describe the content of the documents listedin it (see paragraph 96 above), it did not allow the undertakings and associationsof undertakings concerned to assess whether it was expedient to request access tospecific documents. 149. The Commission cannot therefore allege, as it has in the cases between it andDyckerhoff, Heidelberger, Valenciana, Asland, Holderbank and Hornos Ibéricos,that in the present case there can be no question of lack of proper access to theinvestigation file, because the addressees of the SO could, on the basis of the listitemising all the documents in its investigation file, have requested more extensiveaccess to the file. In any event, where the undertakings or associations ofundertakings did request additional access to the documents in the investigationfile, the Commission did not grant those requests, which caused some undertakingseven to bring an action before the Court (see the judgment in Cimenteries CBR andOthers v Commission, cited in paragraph 11 above). It follows that in the presentcases the fact that during the administrative procedure some applicants did notrequest the Commission to grant them more extensive access to the investigationfile or to send specific documents to them, cannot, in view of the obviouspointlessness of doing so at that time, lead to a plea that this was an infringementof their rights of defence being time-barred before the Court of First Instance(Case T-30/91 Solvay v Commission, cited in paragraph 106 above, paragraph 96). 150. In these proceedings, the Commission submits that during the administrativeprocedure all the relevant documents were made available to the addressees of theSO, that is to say, all documents that relate to the accusations against them,whether those documents support the applicants' case or the case against them(Opinion of Advocate General Warner in Case 30/78 Distillers Company vCommission [1980] ECR 2229, at 2295, and judgment in Case 322/81 Michelin vCommission [1983] ECR 3461, paragraphs 5 to 10), except for internal notes of theCommission and documents containing confidential information and businesssecrets. 151. Consequently, the Commission itself submits that, when it assessed which of thevarious documents in the investigation file should be accessible, it took therelevancy of the documents in question as the criterion for that assessment. In sodoing, it therefore selected the documents in the investigation file which, in its view,were useful for the defence of the undertaking or association of undertakings inquestion. 152. Having regard to all those considerations, the Court finds that, irrespective ofwhether the Commission's refusal to give access to the inaccessible documents wasbased on their irrelevancy or their confidential nature, or on a combination of those two criteria, in the present case the Commission did not give the applicants properaccess to the investigation file. 153. The Court also points out that during the hearings in Cases T-25/95, T-45/95, T-46/95 and T-60/95, the Commission itself acknowledged that the organisation ofaccess to the file during the administrative procedure in those cases was not astransparent as it should be in an investigation into agreements and concertedpractices between undertakings and associations of undertakings. It made thatstatement when commenting on the usefulness for the applicants' defence of theinternal note of Cimpor of 17 February 1983 written by Mr Toscano Jr (documents33.322/314 to 344) (see paragraph 1123 below). It accepted that this note, in so faras it related to the Head Delegates meeting of 14 January 1983 referred to in point19(a) of the contested decision, should have been accessible to the applicantsduring the administrative procedure. During the hearings in Cases T-31/95, T-32/95,T-38/95, T-52/95, T-53/95 and T-56/95 it also acknowledged that there had beenerrors in organisation of access to the investigation file during the administrativeprocedure. 154. FIC and Italcementi requested, in documents dated 10 November 1998 and 6November 1998 respectively, that the Court take formal note, in their cases too, ofthe Commission's statements regarding access to the file in the hearings in CasesT-25/95, T-45/95, T-46/95 and T-60/95 and in Cases T-31/95, T-32/95, T-52/95 andT-60/95. SFIC and Vicat requested the Court, by letters of 27 October 1998 and9 February 1999 respectively, to take into account in their cases the statementsmade by the Commission, regarding the internal note of Cimpor of 17 February1983 by Mr Toscano Jr (documents 33.322/314 to 344), at the hearings held inother cases. Lafarge and Blue Circle made a similar request in regard to theircases in letters dated 16 November 1998 and 2 December 1998 respectively. Cimpor and SECIL requested, by letters of 11 November 1998 and 17 November1998 respectively, the Court to take into account in their cases the statements madein Cases T-25/95, T-30/95 and T-60/95. In its letter of 20 November 1998 Cementirrequested the Court to take into account in its case the statements made by theCommission relating to access to the file during the hearings held in Cases T-25/95and T-60/95. Ciments Français made a similar request in regard to its own case ina letter of 4 November 1998. Italcementi also requested, by document of 6November 1998, that the oral procedure be re-opened pursuant to Article 62 of theRules of Procedure. Cembureau and Cementir also requested, by letters sent tothe Registry of the Court on 1 December 1998 and 20 November 1998 respectively,that the oral procedure be re-opened. According to Cembureau, Italcementi andCementir the various statements by the Commission in Cases T-25/95, T-31/95, T-32/95, T-52/95 and T-60/95 constitute a new fact. 155. The Court points out that the Commission's statements that proper access to theinvestigation file was not granted during the administrative procedure are in linewith the finding made by the Court solely on the basis of the arguments submitted during the written and oral procedure by the applicants referred to in the previousparagraph (see paragraph 152 above). In those circumstances, the applicants'requests that the Court should take into account statements made by theCommission in other 'Cement cases are devoid of purpose. As regards therequests for the re-opening of the oral procedure, the Commission has notacknowledged in any of the present 'Cement cases, either in its pleadings or atthe hearing, that it infringed the rights of the defence of the applicants during theadministrative procedure by not giving access to some documents in theinvestigation file (see paragraph 237 et seq. below). For that reason, its statementsdo not constitute a new fact of such a nature as to be a decisive factor in theoutcome of the proceeding (see, to that effect, Case C-415/93 Bosman and Others[1995] ECR I-4921, paragraph 53; Case C-199/92 P Hüls v Commission [1999] ECRI-0000, paragraphs 127 and 128; Case C-200/92 P ICI v Commission [1999] ECRI-0000, hereinafter 'C-200/92 P ICI v Commission, paragraphs 60 and 61; Case C-227/92 P Hoechst v Commission [1999] ECR I-0000, paragraphs 104 and 105; andCase C-234/92 P Shell v Commission [1999] ECR I-0000, paragraphs 63 and 64). There is therefore no need to re-open the oral procedure in Cases T-26/95, T-65/95and T-87/95, nor, therefore, to grant Italcementi's requests that, in preparation fora new oral procedure, there should be added to the file in Case T-65/95 theminutes of the hearing in Cases T-25/95, T-31/95, T-32/95, T-52/95 and T-60/95 andthe entire transcript of the hearing in those cases. 156. Contrary to the applicants' contentions, the finding that the Commission did notgive the applicants proper access to the investigation file during the administrativeprocedure cannot in itself lead to annulment of the contested decision as againstthe 39 applicants who submitted the corresponding line of argument. Access to thefile is not an end in itself, but is intended to protect the rights of the defence. Thus, the right of access to the file is inseparable from and dependent on theprinciple of the rights of the defence (Opinion of Advocate General Léger in BPBIndustries and British Gypsum v Commission, cited in paragraph 144 above, points97 and 98). 157. In the present case, it is therefore necessary to examine whether the applicants'defence was affected by the fact that they were not given proper access to thedocuments in the investigation file during the administrative procedure. 2. The various measures of organisation of procedure ordered by the Court 2.1 Preliminary observations 158. The Court has already found that the Commission did not give proper access to theinvestigation file during the administrative procedure (see paragraph 152 above). Furthermore, although no irregularity in that regard has been found (seeparagraphs 104 to 123 above), it is common ground that the applicants were not given access to the chapters of the SO relating to the national agreements andconcerted practices other than the chapter concerning the national agreements andconcerted practices in the Member State in which they were established (seeparagraph 94 above). 159. It is therefore necessary to examine whether the rights of the defence of the 39applicants concerned were infringed because they were not given access to certainpassages of the SO and to documents in the investigation file which might havecontained exculpatory evidence. 160. The Commission alleges that the applicants' assertion that their rights of defencewere infringed is purely theoretical. Referring to the judgment in BPB Industriesand British Gypsum v Commission, cited in paragraph 142 above, paragraph 35, itconsiders that the Court must reject the vague and hypothetical assertion that therehad to be exculpatory evidence in the chapters of the SO and the documents of theinvestigation file which were inaccessible to the applicants during the administrativeprocedure. 161. That preliminary argument by the Commission cannot be upheld. Applicants whohave raised a plea alleging infringement of their rights of defence cannot berequired to set out in their application detailed arguments or a consistent body ofevidence to show that the outcome of the administrative procedure might havebeen different if they had had access to certain documents which were in fact neverdisclosed to them. Such an approach would in effect amount to requiring aprobatio diabolica (Opinion of Advocate General Léger in BPB Industries andBritish Gypsum v Commission, cited in paragraph 144 above, point 119). 162. It was specifically in order to allow the 39 applicants concerned to identify anyexculpatory evidence which had not been accessible during the administrativeprocedure that the Court ordered various measures of organisation of procedurein the course of the present proceedings. 2.2 The various measures ordered 163. By decision notified between 19 January and 2 February 1996 to the parties in eachof the cases ('the measures of 19 January to 2 February 1996), the Courtrequested the Commission to produce various documents. The Commission did soon 29 February 1996. In each of the cases, it lodged the SO as notified to theapplicant concerned, the minutes of the oral hearing of that party, the List (seeparagraph 5 above), the Box (see paragraph 95 above) and the correspondencebetween the Commission and the applicant concerned during the administrativeprocedure. Since the cases were not joined during the written and oral procedure,none of the applicants could peruse documents lodged by the Commission in theother cases. The measure ordered did not therefore allow the 39 applicants invoking infringement of their rights of defence (see paragraph 124 above) toexpound their arguments in that regard. 164. In those circumstances, by decision notified to the parties in the 39 cases concerned(see paragraph 124 above) on 2 October 1996 (hereinafter 'the measure of 2October 1996), the Court requested the Commission to authorise the applicantsin question to consult the national chapters of the SO at its premises and, in regardto each of the national agreements and concerted practices, to give them access tothe same national file as that sent during the administrative procedure to theaddressees of the SO established in the Member State concerned. The applicantswere requested to identify the passages of the SO and the relevant documentswhich had not been sent to them during the administrative procedure and toexplain in what respect the outcome of the administrative procedure might havebeen different if those items had been made available to them during thatprocedure. They were requested to attach to their written submissions a copy ofeach document commented upon. The Commission was requested to lodge awritten reply in each of the cases concerned. 165. As a result it became apparent that all the documents in the files relating to thenational agreements and concerted practices were part of files 27.997, 33.126 and33.322, as itemised on the List (see paragraph 5 above). They were subsets ofdocuments from the Commission's investigation file. 166. By decision notified on 27 February 1997 the Court requested the Commission tospecify exactly which documents were rendered accessible to the applicantsfollowing the adoption of the measure of 2 October 1996 and to identify them onthe List (see paragraph 5 above). The Commission replied to that request byletters of 8 and 17 April 1997. 167. Although the measure of 2 October 1996 enabled the 39 applicants concerned toperuse the whole of the SO and of file 27.997 relating to a national objectionconcerning the CPMA (see paragraphs 91 and 93 above), it gave them access,however, to only around a quarter of files 33.126 and 33.322 as a whole. 168. Consequently, the Court ordered another measure of organisation of procedure forthe disclosure of the remainder of the investigation file. Thus, by decision notifiedto the parties in the 39 cases concerned (see paragraph 124 above) on 18 and 19June 1997 ('the measure of 18 and 19 June 1997), the Court requested theCommission to lodge at the Registry, by 30 September 1997 at the latest, theoriginals of all documents itemised on the List in files 33.126 and 33.322 except fordocuments containing business secrets or other confidential information and theCommission's internal documents. The Commission was requested to specify thenature of each internal document on the List (see paragraph 5 above). It was alsorequested to replace the confidential documents in the file with non-confidentialversions or non-confidential summaries (see paragraph 186 below). 169. The 39 applicants concerned were invited to consult, at the Registry of the Court,the original, non-confidential versions of the documents lodged by the Commission. They were allowed to lodge a pleading specifying any document to which they hadnot had access during the administrative procedure which could have affected theirdefence and explain briefly why the outcome of the administrative procedure mighthave been different if the document in question had been made available to them. They were requested to annex to the pleading a copy of each documentcommented upon. The Commission was allowed to lodge a response in thosecases. 170. All the applicants concerned by the measures of 2 October 1996 and 18 and 19June 1997, except for Ciments Luxembourgeois, lodged observations after they hadinspected the Commission's file. The Commission responded in each of thosecases. 171. Before examining the arguments which the applicants have set out in theirpleadings, the Court points out that in those pleadings Dyckerhoff, Vicat,Heidelberger, Lafarge, Unicem, Blue Circle and AGCI have made some commentsthat are unrelated to the measures of organisation of procedure, with no specificreference to a document in the investigation file. Those comments must bedisregarded: observations lodged in response to measures of organisation ofprocedure must not extend the written procedure as a whole. For the samereasons, documents which are not from the investigation file must be excluded fromconsideration. The Court will thus exclude, first, the documents in Annexes IV, Vand VI to Lafarge's observations of 10 February 1997 lodged following the measureof 2 October 1996 and the documents in Annexes 87 and 88 to Lafarge'sobservations of 28 January 1998 lodged following the measure of 18 and 19 June1997. It is pointed out, moreover, that those documents do not bear references tothe numbering in files 33.126 and 33.322 indicated on the List (see paragraph 5above). Nor can Lafarge allege, as it does in its observations of 28 January 1998,that the documents which it adduces in Annexes IV, V and VI to its observationsof 10 February 1997 correspond to documents 33.126/16473 and 16474 adduced inAnnex 41 to its observations of 28 January 1998. The alleged correspondence isnot apparent from reading those documents. 172. Similarly, the mere reference to a document in the investigation file, withoutprecise explanation of the effect which the failure to disclose it had on the exerciseof rights of the defence, does not satisfy the conditions laid down in the measuresof organisation of procedure. Consequently, since they cannot be the subject of anappraisal by the Court under those measures, Lafarge's reference to documents33.126/20386 to 20394 (observations on the measure of 2 October 1996, p. 65) andto documents 33.126/767 to 7886, 16316 to 16765 and 33.322/1 to 3147, listed in ablock without specific comments (observations on the measure of 18 and 19 June1997, pp. 18 to 30), must be rejected. 2.3. The conditions under which the Commission was to perform the measuresof organisation of procedure 173. Bearing in mind the object of the measures of organisation of procedure ordered,it is necessary to consider whether the Commission complied with their terms. 2.3.1. The measure of 19 January to 2 February 1996 174. In their pleadings lodged on 7 February 1997 and 13 February 1997 respectively,Rugby, on the one hand, and Castle, Aker and EUROC, on the other, asserted thatthe Commission had not correctly responded to the Court's requests (see paragraph163 above). They claimed that the Commission had not sent either the filesconcerning the national agreements and concerted practices, or the whole of thefile concerning the international agreements and concerted practices. Moreover,it had not disclosed certain documents from the correspondence between theapplicants and its officials. 175. The Court finds that the first objection has become devoid of purpose following themeasures ordered on 2 October 1996, 18 and 19 June 1997. As to the secondobjection, the applicants concerned do not indicate how the failure to produce thewhole of the correspondence between themselves and the Commission could haveinfringed their rights of defence. The two complaints must therefore be rejected.                                                                     2.3.2. The measure of 2 October 1996 176. Pursuant to the measure of 2 October 1996, the 39 applicants concerned weregiven access to the whole of the SO and to file 27.997 relating to the CPMA, towhich reference is made in the chapters of the SO concerning the United Kingdom(Chapters 4 and 14). The argument submitted by Uniland and Oficemen in theirpleadings lodged following the measure of 18 and 19 June 1997, claiming that thedocuments in file 27.997 were not made available to them, must therefore now berejected. 177. The 39 applicants concerned also had access, following the measure of 2 October1996, to the documents in files 33.126 and 33.322 relating to the nationalagreements and concerted practices (see paragraphs 164 to 167 above). 178. In their observations Cembureau, ENCI, VNC, Dyckerhoff, SFIC, Vicat, CimentsFrançais, Heidelberger, Lafarge, BDZ, Unicem, Valenciana, Rugby, Castle, Cimpor,SECIL, ATIC, Titan, Italcementi, Holderbank, Hornos Ibéricos, Aker, EUROC,Cementir and Blue Circle submit in essence that the Commission did not give themproper access to the investigation file in connection with the measure oforganisation of procedure in question. 179. However, those observations have become devoid of purpose. Following themeasure of 18 and 19 June 1997 the applicants concerned were given, as found inparagraphs 210 and 211 below, full access to the investigation file (files 27.997,33.126 and 33.322) apart from documents containing business secrets and otherconfidential information and the Commission's internal documents. 180. Cembureau, Rugby, Castle, ATIC, Aker and EUROC consider that following themeasure of 2 October 1996 the Commission should have made available to theapplicants concerned the observations which the addressees of the nationalchapters of the SO had made in their replies to the SO. According to SFIC,Castle, Irish Cement, Cimpor, SECIL, ATIC, Aker and EUROC, the same appliesto the minutes of the hearings concerning the national agreements and concertedpractices. 181. However, the measure of 2 October 1996 cannot be interpreted in the sense forwhich they contend. The Court points out that the measures of 2 October 1996and 18 and 19 June 1997 were restricted to the national chapters of the SO and tothe documents in the investigation file, as itemised on the List (see paragraph 5above). By those measures the Court wished to ascertain whether the applicants'rights of defence were infringed at the time when they prepared their reply to theSO. The applicants' arguments that their rights of defence were infringed becausethey were not given access during the administrative procedure to documents notitemised on the List (see paragraph 5 above) will be considered below (seeparagraphs 380 to 435). 182. Vicat, Unicem, Asland and Hornos Ibéricos also criticise the Commission's relianceon the plea that certain documents were confidential at the time that access to thenational files was organised following the measure of 2 October 1996. Substantialparts of some documents were blanked out because of their confidential nature. The applicants complain that the Commission did not send to them a non-confidential version of documents to which they did not have access. Unicemcomplains in particular that the Commission did not give access to certaindocuments relating to events that took place 5 to 10 years previously and whichwere thus no longer of the slightest business sensitivity. Asland complains that theCommission did not enquire of the undertakings and/or associations of undertakingsconcerned as to the status of documents for which confidentiality had been claimedin 1990 or in 1991. It refers, by way of example, to documents 33.322/2897 to 2902,to which it was given partial access when it inspected the file at the Commission'soffices on 12 November 1996, despite the fact that Hispacement, the undertakingconcerned by those documents, had withdrawn its reservation of confidentialitymore than three years previously. Vicat and Hornos Ibéricos refer to the samedocuments of Hispacement in their submission that the Commission arbitrarilypleaded confidentiality. 183. The Court points out that the purpose of the measure of 2 October 1996 was togrant to the 39 applicants concerned (see paragraph 124 above) access, in respectof each of the national agreements and concerted practices, to the same nationalfile as that which the addressees of the SO established in the Member Stateconcerned had been given access during the administrative procedure. Pursuantto that measure, the Commission did not therefore have to enquire of theundertakings and/or associations of undertakings concerned as to theappropriateness of maintaining the confidentiality claimed for certain documentsduring the administrative procedure. 184. However, in the measure of 18 and 19 June 1997 the Court requested theCommission to invite the undertakings and associations of undertakings from whichdocuments included in the file had been obtained to 'update their assessment ofthe appropriateness of maintaining the confidentiality which they had claimed forcertain documents. When they inspected the file at the Registry of the Court, oreven sooner (for example, in respect of the documents of Hispacement: documents33.322/2897 to 2902), Vicat, Unicem, Asland and Hornos Ibéricos were thereforeable to have access to all documents in respect of which the request forconfidentiality had been withdrawn by the undertakings and/or associations ofundertakings during the procedure before the Court, and to submit anyobservations they had on those documents. The arguments of those four applicants(see paragraph 182 above) have therefore become devoid of purpose. 2.3.3. The measure of 18 and 19 June 1997 185. The measure of 18 and 19 June 1997 applied to the whole of files 33.126 and33.322, except for documents containing business secrets or other confidentialinformation and the Commission's internal documents (BPB Industries and BritishGypsum v Commission, cited in paragraph 142 above, paragraph 29). 186. As regards the documents or categories of documents classified as internal on theList (see paragraph 5 above) (Identification Code No 10), the Commission wasrequested to explain the nature of each document and to insert those explanationsin place of the documents to which they referred in the files organised inaccordance with the numbering of the List. As regards the documents containingbusiness secrets or other confidential information, the Court requested theCommission to contact the undertakings and associations of undertakings fromwhich they had obtained the documents making up the investigation file and to askthem to specify which items should not be disclosed to third parties, giving reasonson each occasion for the request for confidentiality and preparing a non-confidential version or a non-confidential summary of the documents containingthose items. The Commission was requested to insert those non-confidentialversions or non-confidential summaries in the files organised in accordance with thenumbering of the List, in place of the documents containing confidential items. 187. After receiving files 33.126 and 33.322 the Court noted that, as Dyckerhoff,Ciments Français, Lafarge, Unicem, ATIC and Italcementi had submitted in theirobservations, the Commission had not specified the nature of documents33.126/19057 to 19156, classified on the List (see paragraph 5 above) as internaldocuments of the Commission, in a set of documents 33.126/19026 to 19156. Inreply to a written question from the Court, the Commission explained that an errorin numbering had been committed in the Registry of the Directorate-General forCompetition (DG IV) when all the documents in the investigation file wereregistered, and that documents 33.126/19057 to 19156 did not exist. 188. The Commission's explanations in that regard must be accepted. The summary andpagination of file No 49 of the investigation file, as made up by the Registry of DGIV, refer to pages 33.126/18612 to 19056, whereas the summary and pagination offile No 50 refer to pages 33.126/19157 to 19433. It can therefore be concluded thatthere was an error of numbering when file No 50 was made up. 189. Several applicants contend that the Commission did not always grant access to thewhole of the investigation file. 190. The Court finds that the applicants' argument is based on a factual error wherethey claim not to have had access to certain documents when those documents arein fact in the investigation file sent to the Court. That is so in the case ofdocuments 33.126/19865 to which Ciments Français refers, 33.126/5236 and 12012,33.322/56, 57, 1881, 1882 and 2463 to which Lafarge refers, 33.126/4595, 4621, 4633,4650, 4713 and 4796, 33.322/30 to 32, 207 to 209, 237, 1090, 1091 and 1184 towhich Uniland and Oficemen refer, document 33.126/166 to which Oficemen refers,and documents 33.126/11248, 11249, 17568 to 17576, 17994, 18007 and 19865, and33.322/1760 to 1769 to which Italcementi refers. 191. Ciments Français, Lafarge, Unicem and Italcementi also contend that theCommission failed to send to the Court documents 33.126/895 to 911. They state,moreover, that document 33.126/3434 in the investigation file has not been madeavailable. Nor, according to Ciments Français and Italcementi, did the file sent tothe Court include documents 33.126/10241 to 10243. Finally, Unicem complainsthat documents 33.126/19422 and 19423 were missing. 192. In response to a written question from the Court concerning that point, theCommission states that it sent all those documents to the Court. It assumes that,if the pages are no longer at the place where they should be, that is because theywere misfiled during inspection of the file. 193. That explanation may be accepted, particularly since the Commission resubmitted,prior to the hearings, a copy of the pages in question, which were thus part of thefile in each of the 39 cases concerned. 194. Lafarge also alleges that documents 33.126/1691 and 33.322/3 are incomplete. However, no part of those documents has been blanked out. The applicant'sargument therefore has no factual basis. 195. Lafarge, Uniland and Oficemen submit that they were not given access todocuments 33.126/1 to 165 and 11494 to 11517. Uniland and Oficemen made thesame objection in regard to documents 33.322/1092 to 1183 and 1185 to 1194, andUnicem in regard to document 33.126/19056. 196. However, the Court points out that all those documents are internal notes of theCommission, the nature of which was explained in the file sent to the Court. Asinternal notes, those documents could validly be excluded from the process ofinspection implemented pursuant to the measure of organisation of procedure(Hercules Chemicals v Commission, cited above at paragraph 140, paragraphs 53and 54, and BPB Industries and British Gypsum v Commission, cited at paragraph144 above, paragraph 22; order of 10 December 1997 in Joined Cases T-134/94,T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94,T-156/94 and T-157/94 NMH Stahlwerke and Others v Commission [1997] ECRII-2293, paragraph 35). 197. Several applicants allege that they were unable to gain access to the followingdocuments for which the companies at whose premises they had been obtained had,following the measure of organisation of procedure, maintained their request forconfidential treatment: documents 33.126/682 to 684 and 711 to 716 to whichLafarge, Uniland, Oficemen and Italcementi refer, documents 33.322/58 to 70 towhich Lafarge refers, documents 33.126/4596 to 4620, 4634 to 4649, 4659 to 4712and 4719 to 4795 to which Uniland, Oficemen and Italcementi refer, anddocuments 33.322/33 to 55 and 210 to 236 to which Lafarge, Uniland and Oficemenrefer. 198. Documents 33.126/682 to 684 and 711 to 716 are, respectively, a summary of the'Business plan of Inter-Béton, the joint venture between CBR and Obourg for themanufacture and distribution of concrete, and the management contract for Inter-Béton. Documents 33.322/58 to 70 contain a 'Strategic plan for Cimpor. Documents 33.126/4596 to 4620, 4634 to 4649, 4659 to 4712 et 4719 to 4795 aredocuments which Lafarge still considers to be covered by the protection of businesssecrets (budget for the years 1989-1991, by Gilbert Liduena, Lafarge, 18 October1988 (documents 33.126/4642 to 4649 and 4659 to 4712); Scénarios d'impasse Trois scénarios possibles (deadlock scenarios  three possible scenarios)(documents 33.126/4596 to 4620); Strategy against the Greek cement industry,Lafarge, DEP, 12 April 1988 (documents 33.126/4634 to 4641); Sud-Est/Vallée deSeine study, introduction  methodology, working document, Lafarge, DEP,F. Phélip, 21 April 1989 (documents 33.126/4719 to 4724); working document of theSud-Est/Vallée de Seine study, Direction Études et Plan, F. Phélip, Lafarge, 21April 1989 (documents 33.126/4725 to 4730); Vallée de Seine, DEP Lafarge, M. Morel, 21 April 1989 (documents 33.126/4731 to 4766); Sud-Est, DEP Lafarge,M. Morel, 21 April 1989 (documents 33.126/4767 to 4795)). Documents 33.322/33to 55 and 210 to 236 are internal studies of Cimpor which illustrate that company'sbusiness strategy and set out basic options as to the positioning of the company onthe market. 199. When they inspected the file pursuant to the measure of 18 and 19 June 1997, the39 parties were given access to a non-confidential version or a non-confidentialsummary of the above documents. By means of those non-confidential versions orsummaries they were therefore able to gain an adequate idea of the documents inquestion with which to assess the extent to which they were relevant to the exerciseof their rights of defence during the administrative procedure. The fact that theCommission always acceded to the various requests for confidential treatment andnever examined the substance of those requests, a point which was raised byUniland and Oficemen, is wholly irrelevant in that regard, since Lafarge, Uniland,Oficemen and Italcementi have not adduced any evidence to show that thedocuments could have been of interest for their defence. The objection based onlack of access to those documents during inspection of the file must therefore berejected. 200. Similarly, but in a general manner, Ciments Français contend that the lawyers'letters claiming confidentiality for certain documents not included in theinvestigation file do not refer to the numbers of the missing documents. However,it does not adduce the slightest evidence to show that the documents to which itrefers  which it does not even specify  could have been of interest for its defenceduring the administrative procedure. In those circumstances, its argument must berejected as insufficiently precise. 201. ATIC contends that the confidential documents were rarely replaced by summaries. Similarly, Cimpor and SECIL state that, of the documents made available followingthe measure of organisation of procedure, a large number were replaced by sheetsof paper which solely indicated the number and nature of the document. Thatargument, which has not been supported by any specific reference to documentsin the investigation file, must also be rejected on the ground that it lacks precision. 202. In that same context, Italcementi refers to documents 33.126/436 to 439, 4491 to4592, 11215 to 11218, 11224 to 11241, 11250 to 11252, 17476 to 17483, 17995 to18006, 18102 to 18109, pages 12 to 19 of document 33.126/4982, documents33.322/1636, 1638 to 1755, 1757, 1759, 1770 to 1789 and 1792 to 1796. Afterreading the lawyers' letters placed in the file, it notes that the absence of some ofthose documents is explained by the fact that the undertakings concerned repeatedthe reservation of confidentiality in the context of the inspection of the fileorganised by the measure of 18 and 19 June 1997. It considers, however, that thelawyers' letters, which make no reference to the numbering given by theCommission to the documents in its file, do not allow it to be ascertained whether all the missing documents are confidential. It states that although the Court, in itsmeasure of organisation of procedure, gave very specific instructions to theundertakings and associations of undertakings concerned regarding the treatmentof confidential documents, some lawyers' letters not only failed to annex the non-confidential version of the documents for which they were claiming continuedconfidentiality, but were even so vague that they did not allow their content to beascertained, even in summary. It refers, by way of example, to the letter of 5August 1997 from Valenciana's lawyers to the Commission asking it not to grantthird parties access to the documents of the board of directors of that company, asa result of which documents 33.322/1825 to 1880 were removed from the file, butwithout the inclusion in the file accessible to Italcementi of the agenda of thosemeetings or the subject-matter of the decisions adopted in them. 203. Lafarge also complains of the confidential treatment of documents 33.322/1825 to1880 and of documents 33.322/911 to 918. 204. The Court finds that documents 33.322/1792 to 1796 are not in the investigation fileto which the Commission granted access and that at the place where thosedocuments should be found there is no indication or explanation of the reasons fortheir unavailability. However, by its measure of 18 and 19 June 1997 the Courtalso requested the Commission to send to the Court the documents in theinvestigation file for which the parties concerned had requested confidentialtreatment. After checking the files containing the confidential documents in theinvestigation file thus sent by the Commission, the Court finds that confidentialtreatment had been requested by Asland for documents 33.322/1792 to 1796. Theyconstitute a document entitled 'details of balance sheet of Zemland InvestmentAG, which is unconnected with any objection raised against Italcementi in thecontested decision and which could clearly not have been of any use for its defenceduring the administrative procedure. In those circumstances, Italcementi cannotbase any argument on improper performance of the measure of organisation ofprocedure in regard to that document. 205. As regards documents 33.322/1825 to 1880 to which Lafarge and Italcementi refer,it is correct that, contrary to the instructions given by the Court in June 1997, theletter of 5 August 1997 from Valenciana's lawyers seeking continued confidentialtreatment of those documents was not accompanied by a non-confidential versionor summary of them, nor did it indicate the agenda or subject-matter of themeetings in question. Likewise, as regards documents 33.322/911 to 918, it wassolely stated that it was a framework agreement for cooperation between Cimporand Ciments Français. However, Lafarge and Italcementi have not explained howthose documents could have been of interest for their defence during theadministrative procedure. In any event, after checking the files containing theconfidential documents in the investigation file, the Court finds that the content ofdocuments 33.322/1825 to 1880 and 33.322/911 to 918 are unconnected with anyobjection raised against Lafarge and Italcementi in the contested decision. Those documents could not therefore have been useful for the defence of Lafarge andItalcementi during the administrative procedure. In those circumstances, Lafargeand Italcementi cannot base any argument on the improper performance of themeasure of organisation of procedure in regard to those documents. 206. Confidential treatment of all the other documents cited in paragraph 202 abovehad been requested, and, following the measure of organisation of procedure,Italcementi had access to a non-confidential version or summary of them. At theplace in the investigation file where documents 33.126/436 to 439 should be thereis a letter of 28 August 1997 from the lawyers of Obourg, which lists five documentswhich that company classifies as business secrets (Inter-Béton management contractbetween Obourg and CBR of 10 October 1967; agreement between the futureshareholders of NCGCP (Nouvelle Gralex) of 2 July 1985 and supplementaryagreement No 1 thereto of 12 July 1985; agreement between Obourg and CBR forthe common management of Nouvelle Gralex; business plan of Inter-Béton, Gralexand Obourg-Calcaire; cost price calculations for clinker and cement sold by Obourgin November 1988) with a brief non-confidential summary of those five documents. In the places in the file where documents 33.126/4491 to 4592 and pages 12 to 19of document 33.126/4982 should be found, there is, each time, a letter of 16September 1997 from Lafarge's lawyers which lists various documents which thatcompany still considers to be covered by the protection of business secrets (forwardplanning of the Lafarge group, cement and associated activities, summary of notesmade by members of the executive committee during the first quarter of 1986,Philippe Agid, 25 April 1986 (documents 33.126/4491 to 4509); scénario dedéstabilisation concurrentielle en Europe  éléments clés  risque d'impasse diagnostics (destabilisation of competition in Europe  key elements  risk ofdeadlock  diagnoses), Lafarge, March 1988 (documents 33.126/4510 to 4592);extract from the budget for 1989-1991, by Gilbert Liduena, Lafarge, 18 October1988 (documents 33.126/4982, pp. 12 to 19)) and which encloses a non-confidentialsummary of those documents. Documents 33.126/11215 to 11218, 11224 to 11241and 11250 to 11252 (relating to Blue Circle's business policy) have been replacedin the file by a non-confidential version. In the place in the file where documents33.126/17476 to 17483 and 17995 to 18006 should be there are 8 and 12 pagesrespectively, each with the words 'non-confidential version set out in the upperright corner. In the place in the file where documents 33.126/18102 to 18109should be there is a letter of 12 September 1997 in which CBR's lawyers state thatthe Commission's official to whom the letter was addressed had indicated thatObourg SA had 'requested confidentiality for the Inter-Béton management contractwhich it had concluded with CBR on 10 October 1967. It seemed to them to be'necessary for reasons of coherency and consideration for the other party to thecontract, to extend confidentiality to the two supplementary agreements to thecontract, namely the first confidential supplement to the Inter-Béton managementcontract of 10 October 1967 (freezing of securities) and the second confidentialsupplement to the Inter-Béton management contract, those two supplementaryagreements having been supplied by CBR to the Commission in Annex 5A to the reply to the request for information of 19 March 1990. It seemed to them 'to beall the more reasonable to give those two supplementary agreements confidentialtreatment since they relate to issues which are wholly irrelevant to the presentcase. In each place in the file where documents 33.322/1636, 1638 to 1755, 1757,1759, 1770 to 1789 and 1792 to 1796 should be, there is a letter of 28 July 1997from Asland's lawyers, which specifies amongst the documents in pp. 1508 to 1810of file 33.322 those documents which Asland wishes to keep confidential because'they relate to internal restructuring operations of the company, have no bearingon the alleged infringements, and are an integral part of the strategy and internalpolicy adopted by Asland during the reference period, and identifies thosedocuments to which Asland has no objection that they be made available to thirdparties. 207. In those circumstances, as Italcementi has not adduced any evidence to show thatthe documents listed in paragraph 202 above that were given confidential treatmentin accordance with the Court's instructions could have been of interest for itsdefence during the administrative procedure, the Court must reject the objectionbased on lack of access to those documents during the inspection of the filefollowing the measure of 18 and 19 June 1997. It should be added that the variousletters from the lawyers referred to in the previous paragraph each listed withprecision the documents affected by the reservation of confidentiality and identifiedthem systematically by reference to their heading. In the absence of proof to thecontrary, the Court must therefore find that the Commission, in allowing the partiesto inspect only the documents to which those requests related, correctly gave effectto the requests for confidential treatment in those letters. 208. Finally, Holderbank alleges that the Commission failed to protect business secretswhen it performed the measure of 18 and 19 June 1997. It states that although itand its subsidiary Obourg informed the Commission that the contract to establishInter-Béton, which was in the investigation file, should not be made available tothird parties because it contained business secrets (see letters of 3 September 1997from the applicant to the Commission and of 28 August 1997 from Obourg to theCommission, Annex 7 to the applicant's observations of 8 December 1997), theCommission made that document accessible to all parties. It states that, althoughaction on its part when it inspected the file on 29 October 1997 made it possibleto prevent other applicants from inspecting the document thereafter, itscompetitors and those of Obourg which inspected the file before 29 October 1997nevertheless saw that contract, so that its subsequent removal from the file did notredress the failure to protect its business secrets. It finds that this event is all themore incomprehensible since the other documents which Obourg and it hadclassified as business secrets were withdrawn from the file by the Commissionbefore inspection commenced. 209. Although it is regrettable that the Commission allowed that confidential documentto be inspected for a time by third parties, the Court finds that Holderbank's argument has no bearing on an assessment of the merits of its action. Suchconduct by the Commission does not affect the legality of the contested decision. 2.3.4. Interim findings 210. It follows from the whole of the foregoing that the 39 applicants concerned by theline of argument in question (see paragraph 124 above) had, during the writtenprocedure before the Court, full access to the SO and access to the investigationfile that was equal to that which they should have had during the administrativeprocedure. They had access to the whole of the investigation file except fordocuments containing business secrets of other undertakings or other confidentialinformation and the Commission's internal documents. Moreover, the Commissionspecified the nature of the internal documents in the investigation file and madeavailable a non-confidential version or non-confidential summary of documents forwhich confidential treatment had been requested. The rare defects in performanceof the measure of organisation of procedure which have been indicated inparagraphs 204 and 205 above relate to documents which would clearly not havebeen useful for the defence of the applicants during the administrative procedure. 211. The Court therefore finds that following the measures of 2 October 1996 and 18and 19 June 1997 the 39 applicants concerned had all the necessary information toexpound the argument that their rights of defence were infringed because thechapters of the SO and the documents in the investigation file to which they werenot given access during the administrative procedure contained exculpatoryevidence. Furthermore, those measures of organisation of procedure gave effectto the applications of Dyckerhoff, Aalborg, Rugby, Castle, Heracles, Aker, EUROCand Italcementi for an order that the Commission produce the documents in files27.997, 33.126 and 33.322. Finally, the complaint by Hornos Ibéricos that on 6January 1995 the Commission had refused to grant it access to the investigation filehas no further purpose. 2.3.5. Special circumstances which impaired the effectiveness of the measures of2 October 1996 and 18 and 19 June 1997 212. In their pleadings lodged following the measures of 2 October 1996 and 18 and 19June 1997, some applicants have pleaded that special circumstances impaired theeffectiveness of those measures. 213. First, Blue Circle complains that it was given an extremely short period of timewithin which to assess the documents which became available following the measureof 2 October 1996. Unicem, Titan and Blue Circle make the same criticismregarding the documents to which access was granted following the measure of 18and 19 June 1997, stating that they did not have adequate time to coordinate their examination of all those documents with the examination of the documents towhich they had previously had access. Blue Circle adds that it was unable toprovide any assistance to its lawyers in the examination of the mass of commercialdocuments, for the purposes of preparing its statement following the measure of18 and 19 June 1997, since none of its employees were available to do so duringthat period. 214. As regards the measure of 2 October 1996, the Court points out that Blue Circlewas able to inspect the files relating to the national objections on 27 November1996. That applicant, which lodged its observations on the relevance of thedocuments in that file on 10 February 1997, therefore had a period of two and ahalf months within which to prepare those observations. Unicem, Titan and BlueCircle then had a period of six weeks following inspection of the investigation filewithin which to prepare their written statements in connection with the measureof 18 and 19 June 1997. 215. Having regard to the fact that Article 173 of the Treaty allows a period of twomonths for the bringing of an action for annulment, those applicants were thereforegiven a reasonable period. The Court points out that the object of those measuresof organisation of procedure was limited. It was to enable the 39 applicantsconcerned to identify the exculpatory evidence in the documents which had beenkept secret during the administrative procedure and to explain how the outcomeof that procedure might have been different if they had had access to that evidenceduring that procedure. In order to prepare a statement following the measures itwas not necessary to make a careful examination of each document madeaccessible. It is apparent merely from the title of numerous documents in theinvestigation file that they had no bearing on the objections adopted againstUnicem, Titan or Blue Circle in the contested decision. 216. As to the argument that it was physically impossible for Blue Circle to assist itslawyers in the performance of the measure of 18 and 19 June 1997, the Courtpoints out that except in the case of force majeure, which has not been proved inthis case, the difficulties and uncertainties associated with a party's internalorganisation cannot be pleaded by it where it has had a reasonable period withinwhich to exercise its rights of defence. In any event, Blue Circle cannot reasonablycontend in this case that during the period allowed within which to lodgeobservations following its lawyers' inspection of the file at the Registry of the Courtnone of its employees was able to devote any time whatsoever to assist them inappraising the documents which they had selected. 217. It follows that the Court must reject the arguments of Unicem, Titan and BlueCircle alleging that an inadequate period was given to them within which toprepare a written statement following the measures of organisation of procedure. 218. Second, Dyckerhoff, BDZ, Asland, Uniland, Oficemen, Holderbank, HornosIbéricos and Blue Circle claim that some documents to which they were givenaccess following the measure of 2 October 1996 were illegible. Asland givesdocument 33.322/1012 et seq. as an example. BDZ, Castle, Holderbank andHornos Ibéricos also complain of the fact that the documents inspected were copiesand not original documents. Holderbank criticises in particular the Commission'sexpress refusal to allow access to the original documents. As the Commissionclaims that Holderbank was able to have access to the original documents,Holderbank requests the Court, in its letter of 27 May 1997, to examine therelevant Commission official. It explains that some documents were photocopiedin a reduced format before being made accessible following the measure of 2October 1996. It is, moreover, impossible to ascertain whether the copies madeavailable to the applicants were all complete and there are even grounds forsupposing that this was not the case with some of them. Holderbank refers inparticular to document 33.126/14929. 219. Uniland, Oficemen and Italcementi complain of the illegibility of some documentswhich were accessible following the measure of 18 and 19 June 1997. Uniland andOficemen refer to documents 33.126/879, 11411 to 1144 (sic), 5803, 5804, 5885,5886, 6499, 7157 to 7163, 14762, 14789, 15124, 15125, 15319, 15320, 15356, 15357,15391 to 15393, 19554, 19555, 20026 to 20032 and 20168 to 20171. 220. The Court finds that the applicants do not complain of the illegibility of thedocuments in file 27.997 made available following the measure of 2 October 1996. As to the documents in files 33.126 and 33.322, the applicants had access to theoriginals of those documents following the measure of 18 and 19 June 1997 (seeparagraphs 168 and 169 above). The observations regarding the illegibility ofcopies which the applicants were able to inspect following the measure of 2October 1996 therefore serve no further purpose. There is therefore no longer anyneed to order the measure requested by Holderbank. The Commission is notresponsible for the illegibility of original documents which it had during theadministrative procedure and such illegibility could not have hindered theattainment of the objectives which the measures of 2 October 1996 and 18 and 19June 1997 sought to attain by granting the applicants access to the investigation file:any such illegibility was the same for both the applicants and the Commission. Theknowledge gained by the Commission from the illegible documents was nottherefore different from that which the applicants could have gained frominspecting them. 221. The arguments of Dyckerhoff, BDZ, Asland, Uniland, Oficemen, Italcementi,Holderbank, Hornos Ibéricos and Blue Circle grounded on the illegibility of certaindocuments to which they had access following the measures of 2 October 1996 and18 and 19 June 1997 cannot therefore be upheld. 222. Third, Unicem, Titan and Blue Circle complain that they were not provided withtranslations of the documents to which they obtained access following the measuresof organisation of procedure, even though those documents were in many differentlanguages. That complicated the preparation of their observations within theperiod allowed to them. Similarly, Valenciana complains that it was not providedwith a translation of the national chapters of the SO other than the Spanishchapters, or of documents to which those chapters refer, or of other documents inthe file. 223. The Court points out that the language rules laid down in Article 3 of RegulationNo 1 apply solely to documents sent by the institutions to specified addressees(Case T-148/89 Tréfilunion v Commission [1995] ECR II-1063, paragraph 21). TheCommission was not therefore required to provide the applicants with a translationof the various documents obtained during its investigation: even though theCommission was required to provide access to them during the procedure beforethe Court, they were not documents officially communicated by the Commission tothe applicants. Nor was the Commission required to provide Valenciana with atranslation of the national chapters of the SO other than those relating to Spain(Chapters 8 and 18), as it was not one of the addressees of those other nationalchapters. The objection raised by Unicem, Valenciana, Titan and Blue Circle musttherefore be rejected. 224. Fourth, Valenciana, Asland, Uniland, Oficemen and Hornos Ibéricos complain thatthere was no list giving the tenor of the documents in the investigation file. 225. The Court notes that the applicants did not, either during the administrativeprocedure or during the procedure before the Court, have a list giving the tenorof the documents in the investigation file. The only list which they had was theList, sent to addressees of the SO during the administrative procedure (seeparagraph 5 above). 226. However, that fact did not impair their rights of defence during the procedurebefore the Court. Following the measures of 2 October 1996 and 18 and 19 June1997 they had access to all the documents in the investigation file, except for thosecontaining business secrets or other confidential information and internaldocuments of the Commission. They also had access to non-confidential versionsor summaries of documents regarded as confidential, and the Commission indicatedthe nature of the internal documents held in its files. The absence of a list givingthe tenor of each document could not have prevented them from identifying, duringthe procedure before the Court, those documents in the investigation file whichmight have been useful for their defence during the administrative procedure and,accordingly, from showing that their rights of defence were infringed during thelatter procedure. 227. Consequently, the Court must reject the applicants' argument inasmuch as itcriticises the lack, during the procedure before the Court, of a list giving the tenorof the documents in the investigation file. The Court will examine that argumentbelow (see paragraphs 272 to 275) inasmuch as it criticises the lack of a detailedlist during the administrative procedure. 228. Fifth, Dyckerhoff, Vicat, Ciments Français, Heidelberger, Lafarge, Aalborg, Asland,Uniland, Oficemen and Blue Circle point to several filing or classification errorswhich, they claim, increased the difficulties which they encountered when preparingwritten pleadings pursuant to the measures of organisation of procedure. Dyckerhoff, Vicat, Ciments Français, Heidelberger, Lafarge, Aalborg and Aslandcriticise the way in which the national files were composed. Ciments Françaisemphasises in particular the arbitrary classification of documents according to theirallegedly national or international character (33.126/10827, 10828, 17157 to 17159,17166 to 17170, 17178, 17179 and 19881 to 19887). According to Aalborg, thereis no logical distinction between the alleged national agreements and concertedpractices and the alleged international agreements and concerted practices. By wayof example, it refers to documents 33.126/19201 and 19202 which it found in theGreek file, despite the fact that they relate to a Greek-Spanish body cooperatingon overseas exports. Ciments Français also objects to the fact that numerousdocuments are numbered solely on the first page, in particular in the file relatingto Spain. Ciments Français and Lafarge criticise generally the total lack oftransparency in the composition of files 33.126 and 33.322. Heidelberger, for itspart, submits that the numbering of the investigation file is impenetrable. It refersto the lack of numbering of certain documents in the L ring binder of documentslodged by the Commission at the Registry of the Court pursuant to the measure of18 and 19 June 1997. It points to document 33.126/9571, which has 32 pages,document 33.126/4982 which is subdivided into numerous sub-numbers, and ringbinder XLI of the file. Dyckerhoff, Unicem, Castle, Holderbank, Hornos Ibéricosand Cementir complain that the numbering of documents was illegible. Cementiradds that the illegible numbering of a series of documents to which it was givenaccess following the measure of 2 October 1996 compelled it to undertake anextremely careful examination in order to identify the 'new documents to whichit had access following the measure of 18 and 19 June 1997. BDZ objects to theexistence of different numbering on the documents consulted. Asland observes thatsome documents appeared two or three times in the national files with a differentpagination but the same reference number on the List (see paragraph 5 above). By way of example, it refers to pp. 64 to 70, 105 to 111 and 182 to 188 of the filerelating to Portugal, which bear the number 33.322/2897 et seq. Hornos Ibéricosalso submits that the file made available to it seems to have been tampered with:various documents in the file have been annotated by the Commission's officials. It cites documents 33.322/170, 172 and 489 and documents 33.126/11988, 17359,17441, 17578, 17579, 17582, 17586, 17658, 17936 and 17996. 229. Italcementi makes similar observations regarding the investigation file which it wasallowed to inspect following the measure of 18 and 19 June 1997. When itinspected that file it saw that it included unnumbered documents (ring binderXVIII, document 33.126/6857a contains unnumbered pages in Annex 5; in ringbinder XX there are seven unnumbered pages after document 33.126/6891; in ringbinder XXII there are, after document 33.126/8384a, four unnumbered pages; inring binder XXIV, document 33.126/9416 is followed by seven unnumbered pagesand document 33.126/9571 by 33 unnumbered pages; in ring binder XXVII,document 33.126/10743 is followed by 17 unnumbered pages and document33.126/10745 by two unnumbered pages; in ring binder XXVIII there are twounnumbered pages, after document 33.126/11206; in ring binder XXX, documents33.126/11912 and 12230 are, in each case, followed by one unnumbered page; inring binder XXXVI, documents 33.126/14411 and 14502 are followed by oneunnumbered page; in ring binder XLII, document 33.126/16934 is followed by threeunnumbered pages; in ring binder XLIII, document 33.126/16971 is followed by fiveunnumbered pages; in ring binder XLVII, document 33.126/18099 is followed byone unnumbered page). The applicant also found that in the case of documentscomprising several pages, such as brochures, balance sheets, contracts or lists ofsales or prices, the Commission merely numbered the first page of the documentin question or numbered it alternately or non-consecutively (for example, ringbinder XXXVII, in which some documents printed on both sides of the page have,on their reverse, numbers which are several units higher than the numbers printedon their front (for example, front page 33.126/14982  reverse 33.126/14991, frontpage 33.126/14983  reverse 33.126/14990, front page 33.126/14984  reverse33.126/14989); ring binder LI in which certain contracts are numbered only on thecover page (for example, 33.126/19556), whereas others are numbered on eachpage (for example, 33.126/19561 to 19577)). Ring binder VIII of file 33.322 is insuch a state of disorder that it is impossible to be certain whether it is complete. 230. Blue Circle draws attention to the disorderly state of the file, the absence of somepages and the double numbering of some documents. Uniland and Oficemencontend that ring binder LI, relating to case 33.126 is not referred to in the List(see paragraph 5 above) of documents drawn up by the Commission. Similarly,inspection of that list would lead one to believe that in ring binder XXXVII, onlydocuments 33.126/14740 to 14742 relate to SIPAC, whereas SIPAC is dealt withfrom document 33.126/14739 onwards. When they inspected the file on 17December 1997, Uniland and Oficemen discovered documents relating to case33.126 in the files relating to case 33.322: documents 2448 to 2477 of case 33.126,which should have appeared in ring binder VII of that case, are in ring binders Iand II of case 33.322. The disorderly numbering of documents in ring binders IVand V of case 33.322 made it difficult to examine them. Uniland and Oficemenstate that the file passes without transition from document 1018 to document 1039then, further on, from document 1050 to document 1069, then, a little further again,from document 1072 to document 1012, which is immediately followed by document1038 and decreasing numbering until document 1019, which in turn is followed by six unnumbered pages which are impossible to place in the file. Some pages ofthose files are, moreover, impossible to classify. Documents 33.126/11123 to 11127which, according to the List drawn up by the Commission (see paragraph 5 above),should have been in ring binder XXVIII, are in ring binder XXVII. Ring binderXXIX of case 33.126 contains numbering errors, Nos 11694 to 11699 having beenused to designate two different series of documents. 231. Those objections are irrelevant to the Court's examination of the argument inquestion. The applicants have not explained how the way the files were made upaffected their rights of defence in this case. As regards the objection relating to thenumbering of and 'tampering with documents, the Court finds that, even if theparties' allegations were proved, the lack of numbering or incomplete ordisorganised numbering of one or other document, or the annotation by theCommission of one or other document in the investigation file, are not such as tohinder the attainment of the objectives which the measures of 2 October 1996 and18 and 19 June 1997 sought to attain by granting to the applicants access to theinvestigation file. The applicants were able to adduce, as annexes to theirobservations, documents from the file whose numbering was illegible or which hadbeen 'annotated by the Commission, and explain how those documents wouldhave been relevant to their defence during the administrative procedure. The sameholds for the disorderly state of some isolated parts of the investigation file. 232. The objection alleging that the Commission gave the same numbering(33.126/11694 to 11699) to two separate series of documents is based on thehandwritten alteration, on some copies made by Uniland and Oficemen, of thenumbering of the original documents in the Commission's file. It is absolutely clearfrom examination of the Commission's original file that the documents numberedfrom 33.126/11694 to 11699 in that file relate solely to extracts from hand-writtennotes taken (in all likelihood by Cembureau) at the meeting of the Head Delegatesof 30 May 1983 in Kerkyra (documents 33.126/11694 to 11696); a letter of 20January 1984 from J. Bailly (Chairman of Cembureau) to Mr Bertran (Chairmanof Asland) (document 33.126/11697); the minutes taken by 'P.D. (probablyPhilippe Dutron of Cembureau) on 13 March 1984; a telephone conversation withMr d'Agostino (Italcementi) relating to exports of cement from Italy to Switzerland(document 33.126/11698); and the list of participants in the Head Delegatesmeeting of 19 March 1984 in Noordwijk (document 33.126/11699). The otherseries of documents, which Uniland and Oficemen submit is also covered by thenumbering from 33.126/11694 to 11699 and which relates to other extracts fromhandwritten notes taken at the meeting of the Head Delegates of 30 May 1983 inKerkyra, is numbered 33.126/11689 to 11693. Finally, as Uniland and Oficemenpoint out, the List (see paragraph 5 above) does not refer to a ring binder LI. Itdoes, however, refer to two ring binders L, so that the second ring binder L towhich the List refers is in fact ring binder LI. 233. It follows from the foregoing that the whole of the arguments set out in paragraphs228 to 230 above must be rejected. 234. Finally, in the sixth place, Blue Circle states that it endeavoured to avoid relying,in its observations lodged following the measure of 18 and 19 June 1997, ondocuments which had legitimately been classified as confidential during theadministrative procedure. It complains that the Commission refused to supply itwith a list of those documents. It annexes to the observations it lodged followingthe measure of 18 and 19 June 1997 (Annex 3) the relevant exchanges ofcorrespondence in that regard, during which it justified its request by the concern,having regard to the short period allowed to it within which to submit itsobservations following its inspection of the remainder of the file, to distinguishbetween the documents to which it had been refused access during theadministrative procedure because a request for confidential treatment of them hadbeen made by the party or parties concerned, and documents to which it had nothad access because the Commission had decided that they were not relevant to itsdefence. 235. The Court points out that although the Commission did not make available to BlueCircle the list which it had requested, it nevertheless informed it, by letter of 13November 1997 (Annex 3 to the applicant's observations lodged following themeasure of 18 and 19 June 1997), of the criteria enabling it to identify thedocuments for which confidentiality had been claimed during the administrativeprocedure. There would have been no point whatsoever in a more preciseexplanation of the documents classified as confidential during that procedure, since,by the measure of 18 and 19 June 1997, the undertakings and associations ofundertakings concerned were requested to 'update their assessment of the needto maintain the confidentiality then claimed for certain documents. A number ofdocuments classified as confidential during the administrative procedure werethereby rendered accessible to the applicants when they inspected the investigationfile at the Registry of the Court. The provision by the Commission of the list ofdocuments classified as confidential during the administrative procedure certainlydid not deprive Blue Circle of the possibility of relying on one or other of thedocuments which were on that list but for which confidentiality subsequently ceasedto be claimed. Consideration of the documents annexed by the applicant to itsobservations shows, moreover, that  contrary to its assertions in those observations it did not hesitate to rely on documents which had been classified as confidentialduring the administrative procedure but which the undertakings and/or associationsof undertakings concerned had agreed to allow to be made available to thirdparties in the context of the measure of 18 and 19 June 1997. The Court refers,by way of example, to documents 33.126/16936 to 16938, contained in Annex 5-10to the applicant's observations, which are stated to be 'confidential. Blue Circle'sargument must therefore be rejected. 236. It follows from the whole of the foregoing that none of the special circumstancespleaded by the various applicants could have hindered the attainment of theobjectives which the measures of 2 October 1996 and 18 and 19 June 1997 soughtto attain by granting access to the whole of the SO and of the investigation file tothem. 3. Analytical framework for assessing an argument alleging infringement of therights of the defence because of the inaccessibility of allegedly exculpatory evidenceduring the administrative procedure 237. By the measures of 2 October 1996 and 18 and 19 June 1997, the 39 applicantssubmitting the argument under consideration (see paragraph 124 above) wererequested to provide a detailed explanation of their argument that the parts of theSO and of the investigation file to which they were not given access during theadministrative procedure would have been useful for their defence. 238. Before examining the various specific arguments adduced by those applicants, theCourt will set out generally the circumstances in which incomplete access to the SOand/or to the investigation file during the administrative procedure will lead to afinding that the rights of the defence have been infringed. 239. The 39 applicants in question submit that the defective access which they had tothe investigation file cannot but lead to the annulment of the contested decision. They refer in that regard to the judgments in Case T-30/91 Solvay v Commissionand Case T-36/91 ICI v Commission, cited in paragraph 106 above. They point outthat in those two judgments (at paragraphs 84 and 94 respectively) the Court foundthat the Commission had 'infringed the applicant's rights of defence by excludingfrom the proceeding documents which it possessed and which might have been ofuse in the applicant's defence. They state that in each of those judgments theCourt annulled the contested decision after having taken the view that aninfringement of the rights of the defence which occurred during the administrativeprocedure could not be regularised during the proceedings before the Court ofFirst Instance. 240. The Court points out that it cannot annul the contested decision in whole or in partunless it is found that the lack of proper access to the investigation file given to theapplicants during the administrative procedure prevented them from perusingdocuments which were likely to be of use in their defence and thus infringed theirrights of defence (judgments cited in paragraph 106 above, Case T-30/91 Solvay vCommission, paragraphs 80, 81, 84, 98 and 100, and Case T-36/91 ICI vCommission, paragraphs 90, 91, 94, 108, 110 and 115). The large number ofdocuments in the investigation file to which the applicants were not given accessduring the administrative procedure does not in itself suffice to justify such afinding. 241. When, in the context of an action seeking annulment of the Commission's finaldecision, an applicant challenges the Commission's refusal to disclose a documentor documents in the file, it is for the Court to require production of the documentsand to examine them (Opinion of Advocate General Léger in BPB Industries andBritish Gypsum v Commission, cited in paragraph 144 above, point 121). The Courtcannot act as a substitute for the Commission (judgments cited in paragraph 106above, Case T-30/91 Solvay v Commission, paragraph 98, and Case T-36/91 ICI vCommission, paragraph 113); its examination must first of all be directed at thequestion whether there is an objective link between the documents which were notmade accessible during the administrative procedure and an objection adoptedagainst the applicant concerned in the contested decision. If there is no such link,the documents in question are of no use in the defence of the applicant invokingthem. If, on the other hand, there is such a link, it must first be examined whetherthe failure to disclose them could have impaired the defence of that applicantduring the administrative procedure. It is therefore necessary to examine theevidence adduced by the Commission in support of that objection (judgments inCase T-30/91 Solvay v Commission, cited in paragraph 106 above, paragraphs 61to 65, Case T-36/91 ICI v Commission, cited in paragraph 106 above, paragraphs71 to 75, and Case T-37/91 ICI v Commission, cited in paragraph 142 above,paragraphs 51 to 56) and to assess whether the documents not disclosed might in the light of the evidence adduced by the Commission  have had a significancewhich ought not to have been disregarded (Case T-30/91 Solvay v Commission,paragraph 68, and Case T-36/91 ICI v Commission, paragraph 78). There will bean infringement of the rights of the defence if there was  even a small  chancethat the outcome of the administrative procedure might have been different if theapplicant could have relied on the document during that procedure (HerculesChemicals v Commission, cited in paragraph 140 above, paragraph 56, Case T-30/91Solvay v Commission, cited in paragraph 106 above, paragraph 68, Case T-36/91 ICIv Commission, cited in paragraph 106 above, paragraph 78, and opinion ofAdvocate General Léger in BPB Industries and British Gypsum v Commission, citedin paragraph 144 above, point 120). 242. In order to examine the question whether a document that was not accessibleduring the administrative procedure was likely to be useful in the defence of anapplicant it is therefore necessary, save where the document has no objective linkwith an objection adopted against that applicant, to carry out a provisionalexamination of the evidence on which the Commission relied in support of itsfinding of an infringement in the contested decision. 243. The Court points out that an initial examination of the evidence adopted by theCommission in its decision was also carried out by the Court of First Instance inits judgments in the Soda Ash cases (Case T-30/91 Solvay v Commission, cited inparagraph 106 above, Case T-31/91 Solvay v Commission [1995] ECR II-1821, CaseT-32/91 Solvay v Commission [1995] ECR II-1825, Case T-36/91 ICI v Commission,cited in paragraph 106 above, and Case T-37/91 ICI v Commission, cited in paragraph 142 above), even though the applicants consider that some parts of thosejudgments, read in isolation (in particular T-30/91 Solvay v Commission, paragraph98, and T-36/91 ICI v Commission, paragraph 108), show that a failure to giveproper access to the investigation file cannot but lead to annulment of thecontested decision. In the cases which gave rise to the judgments in T-32/91 Solvayv Commission, cited above, and T-37/91 ICI v Commission, cited above, theCommission had found in two separate decisions of 19 December 1990 that therehad been infringements of Article 86 of the EC Treaty (now Article 82 EC) bySolvay and ICI on the soda ash market. It alleged that Solvay had abused itsdominant position on that market on the western European market and that ICIhad done the same on the United Kingdom market. Furthermore, in a thirddecision of the same date, it had found that there had been a concerted practicebetween Solvay and ICI, contrary to Article 85(1) of the Treaty. It found that thispractice had existed from 1 January 1973 until the beginning of 1989 and hadconcerned the sharing of the western European soda ash market. Under thatpractice, continental western Europe had been allocated to Solvay, and the UnitedKingdom and Ireland to ICI. The last-mentioned decision gave rise to thejudgments cited in paragraph 106 above, Case T-30/91 Solvay v Commission, andT-36/91 ICI v Commission. 244. In those judgments, the Court had to examine a plea alleging that the rights of thedefence had been infringed because the parties had not had access, during theadministrative procedure, to the file concerning the alleged abuse of a dominantposition by the other party. The applicants took the view that those files mighthave contained exculpatory evidence. In dealing with that line of argument theCourt first of all examined the evidence on which the Commission had relied. TheCommission had first found that ICI and Solvay had concluded a market sharingagreement in 1949. Although that agreement had been formally cancelled in 1972,the Commission had taken the view in the decision that there was ample evidenceof collusion, from which it could be inferred that the original 1949 arrangement hadcontinued to be implemented in the form of a concerted practice after 1972 (seeCase T-30/91 Solvay v Commission, paragraph 61, and Case T-36/91 ICI vCommission, paragraph 71, cited in paragraph 106 above). Thus, in order to provethe concerted practice, the Commission relied on four elements, namely, first, theabsence of any trade in soda-ash by ICI and Solvay across the English Channelduring the period in question; second, the precise coincidence of that lack ofcompetition with the terms of the agreement concluded in 1949; third, theconclusion and implementation of purchase for resale agreements whereby soda-ashwas delivered by Solvay to ICI from 1983 to 1989; and, fourth, frequent contactsbetween Solvay and ICI designed to coordinate their strategy in the soda-ash sector(Case T-30/91 Solvay v Commission, paragraph 65, and Case T-36/91 ICI vCommission, paragraph 75). 245. Next, the Court found in those cases that the only specific documentary evidenceof the infringement found in respect of the period between 1973 and 1982 was the 1949 agreement: the purchase for resale contracts dated from the 1983-1989 period. Furthermore, there were no documents relating to meetings in that first period(Case T-30/91 Solvay v Commission, cited at paragraph 106 above, paragraph 74,and Case T-36/91 ICI v Commission, cited at paragraph 106 above, paragraph 84). The Court considered the evidential value of the 1949 agreement. It found (CaseT-30/91 Solvay v Commission, paragraph 73, and T-36/91 ICI v Commission,paragraph 83) that that agreement had been formally terminated in 1972 and thatthe Commission could not fail to take account of the possibility that by terminatingthat agreement the two undertakings wished to comply with the Treaty. In theCourt's view, the 1949 agreement was therefore weak evidence on which to findthat the infringement in question had been committed by ICI and Solvay from 1January 1973. The only other evidence of the existence of a concerted practice, atleast in regard to the period from 1973 to 1982, was derived from their conduct onthe market, that is to say, the absence of trade in soda ash by ICI and by Solvayacross the English Channel. However, on account of the weakness of thedocumentary evidence relating, in particular, to 1973 and the years immediatelyfollowing it, the Court held that the Commission should, in order to prove to therequisite legal standard the concerted practice alleged against ICI and Solvay, havebeen prompted to make an overall and detailed economic assessment, in thestatement of objections, in particular of the relevant market and the size andconduct of the undertakings active on that market. It considered that thatassessment, if it was to be complete, objective and balanced, ought at least to havetaken into account, first, the strong positions held by Solvay and ICI on theirrespective geographical markets and, second, the loyalty arrangements with theirclients, for which they had been criticised in the course of the proceedings initiatedunder Article 86 of the Treaty (Case T-30/91 Solvay v Commission, paragraph 76,and Case T-36/91 ICI v Commission, paragraph 86). It was in that context that theCourt held that the documents concerning the infringement of Article 86 allegedlycommitted by ICI could have been of use in Solvay's defence in order to rebut theclaim that a concerted practice existed between Solvay and ICI. Those documentsmight have shown that the passive conduct alleged against Solvay was based on itsown independent decisions, motivated by the difficulty of penetrating a market,access to which was blocked by an undertaking in a dominant position (Case T-30/91 Solvay v Commission, paragraph 77). On the same grounds, the documentsconcerning the infringement of Article 86 allegedly committed by Solvay were ofuse in ICI's defence (Case T-36/91 ICI v Commission, paragraph 87). As there wasa chance that, if ICI and Solvay had had access to the documents in questionduring the administrative procedure, they might have been able to influence theCommission's assessment, at least so far as concerns the conclusiveness of thealleged passive and parallel conduct in regard to the beginning and therefore theduration of the infringement, the Court found that the rights of the defence hadbeen infringed and annulled the decision in question (Case T-30/91 Solvay vCommission, paragraphs 98 and 99, and Case T-36/91 ICI v Commission,paragraphs 108 and 109). 246. However, in the judgment in Case T-37/91 ICI v Commission, cited in paragraph142 above, which related to the Commission's decision finding an infringement byICI of Article 86 of the Treaty, the Court rejected the plea of insufficient access tothe file. It held (paragraph 61) that the finding of a dominant position in thecontested decision had been based on ICI's market share and that the abuse of thatposition was apparent from specific documentary evidence, such as the rebatesystems applied by ICI and the exclusive supply contracts imposed by it on itscustomers. After appraising the conclusiveness of the evidence adduced by theCommission, it held (paragraph 63) that ICI's defence could not have been affectedby the fact that it had not had access during the administrative procedure to thedocuments emanating from the continental producers. There was no evidence tosuggest that those documents might have rebutted the findings made by theCommission in its decision, in which it had found an abuse of a dominant positionby ICI. 247. Consequently, where an applicant submits, in the context of an application forannulment, that its rights of defence have been infringed because it was not givenaccess during the administrative procedure to a document in the investigation filewhich, it claims, could have been useful in its defence, the Court must require thatdocument to be disclosed to the Court. It must then examine that document forany relationship with the objections upheld against the applicant in the contesteddecision. If there is no objective link between the document and the objectionupheld in the contested decision, the outcome of the administrative procedurecould not have been different for the applicant if it had had access to thatdocument during that procedure. In such circumstances, the plea by that applicantmust be rejected. If, on the other hand, there is an objective link between thedocument in question and one of the objections upheld against the applicant in thecontested decision, the Court must assess whether, in the light of the evidenceadduced by the Commission in support of the objections referred to in thecontested decision, the document would have had any  even a small  chance ofaltering the outcome of the administrative procedure if the applicant had been ableto rely on it during that procedure. If, in the light of the evidence as a whole, theCourt considers that the document would have had such a chance of altering theoutcome to the administrative procedure, it will find that the rights of the defencehave been infringed (see paragraphs 2205 to 2212, 2224, 2225, 2284 to 2290, 2384,2385, 2469, 3406 to 3435 and 3996 to 4005 below). 248. Finally, it cannot be accepted that an applicant's rights of defence were infringedby the Commission's failure to disclose a document which might contain exculpatoryevidence where that document emanates from that applicant or was manifestly inits possession during the administrative procedure (see, by analogy, BPB Industriesand British Gypsum v Commission, cited in paragraph 144 above, paragraph 25, andCase T-37/91 ICI v Commission, cited in paragraph 142 above, paragraph 64). Ifa document available to an addressee of the SO contains exculpatory evidence,there is nothing to prevent it from relying on that document during the administrative procedure. When organising its defence, an applicant is notrestricted to using only documents in the Commission's file to which it has access. It may use any document which seems to it to be appropriate to rebut theCommission's allegations. 4. Application of the principles to the present case 249. The Court finds, first, that several documents to which the applicants refer in theirwritten statements lodged following the measures of 2 October 1996 and 18 and 19June 1997 are documents to which they already had access during theadministrative procedure. Those documents were classified 'A ('A: all or 'A:European producers) on the List (see paragraph 5 above). Even though oftenthose documents were not in the Box (see paragraph 95 above), they wereaccessible during the administrative procedure and the applicants could have reliedon them to support the arguments set out in their replies to the SO. Theapplicants cannot therefore use those documents to support their claim that theirrights of defence were infringed during the administrative procedure. 250. The applicants listed below have referred in their written statements to thefollowing documents to which they had access during the administrative procedure:FIC to documents 33.126/4858 to 4861, 4911 to 4913, 19205 and 19218; ENCI todocuments 33.126/12519, 12627, 12642, 12648 to 12654 and todocument 33.126/4470, identical to document 33.126/12627, which was classified as'A: European producers on the List (see paragraph 5 above); Dyckerhoff todocuments 33.126/18959, 18960, 19195 and 19196 and to documents 33.126/16509,16515 and 16516, which correspond to documents 33.126/18857, 18821 and 18822,which were classified as 'A: European producers on the List; Heidelberger todocuments 33.126/14809, 14826, 19202, 19218, 19220 to 19233, 19250 and 19264 to19279; Aalborg to documents 33.126/15134, 15135, 15170 and 15201; Buzzi todocuments 33.126/4982, 14809, 14812, 14813, 14815, 14817, 14820, 14822, 14824,14898 and 15174; Valenciana to documents 33.126/4911 to 4913; Asland todocuments 33.126/19202, 19205 and 19218; Heracles to documents 33.126/18755 to18763; Uniland and Oficemen to documents 33.126/11026, 11027, 11080 to 11084,19195, 19196, 19754, 19762, 19770, 19776, 19817, 19819, 19827, 20011, 20019,20065, 20071 and 20072; Rugby and Castle to documents 33.126/14331 to 14333;Titan to documents 33.126/4858, 4859, 10982, 10985, 18755 to 18763, 18771 to18779, 18842, 18843 and 18848 and to documents 33.126/13119 and 16155, whichcorrespond to documents 33.126/18862 and 19007 respectively, which were classifiedas 'A: European producers on the List; Holderbank to documents 33.126/10959,19195 and 19196, and, lastly, Blue Circle to documents 33.126/19220 to 19347 and19875 to 19877 and to documents 33.322/1503 to 1505 which correspond todocuments 33.126/16786 to 16789, which were classified as 'A: Europeanproducers on the List. 251. Second, several applicants rely on passages in the SO and documents in theinvestigation file which have no link with the objections upheld against them in thecontested decision. They would therefore have been of no use in their defence (seeparagraphs 241 and 247 above). 252. Thus, some applicants refer to documents concerning the 'rules of faircompetition (SO, Chapter 10, point 60). SFIC refers to documents 33.126/2412to 2415 and Aalborg to document 33.126/14806. The Court points out, however,that the discussions on 'fair or healthy or correct competition referred to in recital17 of the contested decision were not the subject-matter of a specific objection inthe operative part of that decision. In those circumstances, the comments whichthe abovementioned applicants could have made on the basis of theabovementioned documents could not have altered the outcome of theadministrative procedure if they had had access to them during that procedure. 253. Heidelberger refers to documents which it claims prove that the Commission'sassertion that there were agreements and concerted practices between the German,Belgian and Netherlands producers to share the Netherlands market (contesteddecision, recital 23) is unfounded. It cites documents 33.126/832, 3720, 8165, 8728,8729 and 8915. However, as is explained in recital 51 of the contested decision, theCommission did not adopt a position in the contested decision on the facts set outin recital 23 relating to the Belgium-Netherlands-Germany agreements andconcerted practices. As no objection has been raised against it on that basis,Heidelberger cannot allege in this case that its rights of defence were infringedbecause it did not have access to the above documents during the administrativeprocedure. 254. Next, several applicants rely on documents relating to an infringement referred toin the contested decision but in which, they claim, they did not participate. 255. Vicat refers to documents 33.126/2088 to 2096, 6590, 6591, 6608, 6690, 6691, 7640,10811 to 10813, 10827, 10828, 11052, 11053, 11066, 11073 to 11075, 11077, 11078,13111, 15342 to 15347, 15386, 15387, 16445, 16446 to 16449, 16460 and 16461 asproof that it did not participate directly or indirectly in the ETF. However, as theCommission's decision did not allege that it participated in the ETF's activities, thedocuments in question are not relevant to its defence. 256. Hornos Ibéricos and Blue Circle refer to several documents directly relating to theSpanish-Portuguese agreement referred to in Article 3(2) of the contested decision. Hornos Ibéricos refers to documents 33.322/124 to 133, 170, 905, 966 to 973, 1019,1020, 1027, 1080 to 1089, 1319 to 1322, 1395, 1396 et 1409, and Chapter 9'Portugal of the SO. Blue Circle refers to documents 33.322/2898 to 2903. However, Hornos Ibéricos and Blue Circle are not referred to in Article 3(2) of thedecision. Consequently, even if the documents to which they refer would haveenabled them to show, during the administrative procedure, that the Spanish-Portuguese agreement did not exist, that could not have altered the outcome ofthat procedure for them. 257. Rugby, Castle, Aker and EUROC contend that it is apparent from the nationalchapters of the SO and from documents 33.126/3213 to 3222 that the informationexchange organised in the context of Cembureau could not have had anappreciable effect on competition and did not serve to facilitate the operation ofthe Cembureau agreement. Titan submits that it is apparent from documents33.126/3332 to 3334, 4919, 11121 to 11123 and 17881 to 17886 that the pricinginformation exchanged through Cembureau had no commercial value. Even if theassertion by Rugby, Castle, Titan, Aker and EUROC were correct, the fact thatthey did not have access during the administrative procedure to those items couldnot have impaired their defence, since they were not referred to in Article 2 of thecontested decision, which complains of the exchanges of price informationorganised within Cembureau. 258. Uniland and Oficemen refer to documents 33.126/11080 to 11084, 13104 to 13106,13108, 13109, 19817 to 19832 and 20065 to 20071, which all directly relate to thecarrot actions referred to in Article 4(4) of the contested decision. However, asthat infringement does not relate to them, those documents are of no relevance totheir defence. 259. Aker and EUROC submit that point 46 of 'The Facts in the SO, relating to theFrench agreements and concerted practices (Chapter 5), shows that the ECEC wasnot an instrument serving the export policies of the Community cement producers,set up in order to defend the home-market rule. However, they were not referredto in Article 5 of the contested decision relating to the concerted practices in theframework of the ECEC. The passage of the SO to which they refer is thereforeclearly irrelevant to their defence. 260. Third, as regards documents relating to infringements alleged against an applicantwho relies on those documents, the Court finds that, unlike in the cases which gaverise to the judgments in T-30/91 Solvay v Commission and T-36/91 ICI vCommission, cited in paragraph 106 above, in the present case the Commissionrelied, both in the SO and in the contested decision, solely on specific documentaryevidence to show the various infringements and the participation of the variousaddressees of the contested decision in one or more of those infringements. Inorder to assess the plea that the rights of defence were infringed because theapplicants did not have adequate access to the SO and to the investigation fileduring the administrative procedure, it will be necessary first to assess theconclusiveness of that evidence and then to examine whether the information towhich they had no access could have led to a different decision if the applicantshad been able to rely on those documents during the administrative procedure (seeparagraphs 241 and 247 above and paragraph 263 below). 261. Since the Court will in any event be required, when considering the substantivepleas, to rule on the evidence adduced by the Commission to prove the variousinfringements to which the contested decision refers, it will be appropriate forreasons of procedural economy to assess the correctness of the applicants'arguments based on documents relating directly to those infringements when theCourt considers the substantive pleas concerning the infringements found. However, the assessment of the procedural pleas will not be identical to that of theapplicants' substantive pleas. When examining the plea of infringement of therights of the defence, the Court will examine the evidence on which theCommission relies solely in order that it may assess whether, in the light of thatevidence, the fact of not having had access during the administrative procedure toa particular  allegedly exculpatory  document could have affected the applicants'defence. 262. The Court will therefore reserve its examination of the applicants' argumentsconcerning documents relating directly to the infringements which they are foundin the contested decision to have committed. 263. It should, however, be stated at this point that where, as in the present case, theCommission relied both in the SO and in the contested decision solely on specificdocumentary evidence in order to prove the various infringements and theparticipation by the addressees of the contested decision in one or more of them,the applicants must prove that the evidence that was inaccessible to them duringthe administrative procedure was at variance with the thrust of that evidence or atleast sheds a different light on it (see, to that effect, Case T-37/91 ICI vCommission, cited in paragraph 142 above, paragraph 63). Only in suchcircumstances might documents that were inaccessible during the administrativeprocedure have influenced the Commission's assessment of the documentaryevidence relied on in the contested decision. 264. It already follows that since the infringements were proved in the SO and in thecontested decision on the basis of documentary evidence, not on the basis ofparallel conduct on the market, the Court cannot uphold the argument adduced bysome applicants (CBR, Cembureau, FIC, Dyckerhoff, SFIC, Vicat, Aalborg,Unicem, Castle, Heracles, Oficemen, Irish Cement, Titan, Italcementi, Holderbank,Hornos Ibéricos, Aker, EUROC, Cementir, and Blue Circle) to the effect that analternative economic explanation of the cement producers' conduct on the marketcould have been given by them, based on the documents which remainedinaccessible to them. In the light of the way in which matters were proved in theSO and the contested decision, such an argument could not have altered theoutcome of the administrative procedure. 265. Fourth, several applicants refer to documents emanating from themselves or ofwhich they were manifestly aware during the administrative procedure. For the reasons set out in paragraph 248 above, any argument submitted by the applicantson the basis of such documents must be rejected. 266. Thus, ENCI refers to an extract from alleged draft minutes of the board of CBR(document 33.126/723) and an alleged business plan of CBR for 1989-1991(documents 33.126/732 and 733). As the Commission correctly states, document33.126/723 is an extract from the draft minutes of the board of ENCI itself whichtook place on 22 February 1989 in the offices of CBR, the company which controlsENCI. The extract cited is a report of an account given by Mr Platschorre, asenior executive of ENCI. Furthermore, the business plan annexed to the minutes(documents 33.126/732 and 733) concerns the ENCI group and cannot be regardedas a business plan of CBR. ENCI therefore already had those documents duringthe administrative procedure and could have based arguments on them if it hadbelieved that they contained evidence in its favour. In those circumstances, therecan be no finding that its rights of defence were infringed. For the same reasons,the Court must reject any argument based on the correspondence between Vicatand Mr Schuhmacher, chairman of Heidelberger (documents 33.126/3594 to 3597),on which Vicat relies. The same holds for the letter of the chairman of BDZ of20 May 1985 (document 33.126/14762) on which BDZ relies. Ciments Françaisrefers to a letter of 20 December 1983 from BDZ to the French association at thattime, the SNFCC (document 33.126/14762). It must, however, be pointed out thatthis letter was sent to the chairman of the SNFCC, who was none other than MrPoitrat, the then chairman of Ciments Français. The letter is, moreover, addressedto the registered office of Ciments Français ('p.a. Société des Ciments Français). Furthermore, the chairman of Ciments Français replied to that letter (document33.126/14763). Since the document in question was addressed to the chairman ofCiments Français, that company cannot now use it to support an argument that itsrights of defence were infringed during the administrative procedure, even in orderto illustrate an argument that it wishes to base on the content of other documents. As regards the correspondence between SECIL and Cimpor on 31 August and 1September 1987 and a telefax from Cimpor to SECIL in September 1987(documents 33.322/1018 to 1020 and 1031), to which SECIL refers, the Court pointsout that SECIL, too, which already had those documents during the administrativeprocedure, cannot use them to support a plea of infringement of its rights ofdefence. 5. General arguments relating to infringement of the rights of defence duringthe administrative procedure 267. Since the Court has reserved examination of arguments relating to documentsdirectly concerning the infringements found, it is necessary to examine otherarguments, of a general nature, in the statements lodged. 268. First, Cembureau, SFIC, Unicem, Valenciana, Asland, Titan, Cementir and BlueCircle contend that the measures of organisation of procedure are not capable ofredressing the procedural defect which vitiated the contested decision: aninfringement of the rights of the defence which has occurred during theadministrative procedure cannot be regularised during the proceedings before theCourt of First Instance (judgments cited in paragraph 106 above, Case T-30/91Solvay v Commission, paragraph 98, and Case T-36/91 ICI v Commission, paragraph108). Valenciana, Rugby, Asland, Cementir and Blue Circle add that following themeasures of organisation of procedure they were compelled to search, amongst thedocuments to which they had had access before the Court, for documents whichwere likely to disprove the charges made against them; that reversed the burdenof proof. Asland also observes that, if the Court were not to annul the contesteddecision, despite the substantive procedural defect affecting that decision, it wouldimplicitly authorise the Commission to infringe with impunity fundamental rightsenshrined in Article 6 of the ECHR. 269. The Court points out that the measures of 2 October 1996 and 18 and 19 June1997 did not seek to redress any alleged defect in the administrative procedure. The object of those measures was to allow the 39 applicants referred to inparagraph 124 above to show that the administrative procedure was vitiated by aprocedural defect, in the form of an infringement of their rights of defence, becausethey had not been given access during that procedure to passages of the SO anddocuments in the investigation file alleged to contain exculpatory evidence. Theidentification of that evidence necessarily meant, however, that the applicantsconcerned were able to peruse, during the procedure before the Court, passagesof the SO and documents from the investigation file which had been inaccessibleduring the administrative procedure. 270. Nor can it be claimed that the burden of proof was reversed. In conformity withthe principles laid down in the case-law (Case T-43/92 Dunlop Slazenger vCommission [1994] ECR II-441, paragraph 79; Case T-337/94 Enso-Gutzeit Oy vCommission [1998] ECR II-1571, paragraphs 87 and 151 to 153; Case C-49/92 PCommission v Anic [1999] ECR I-0000, paragraph 86; Hüls v Commission, citedabove at paragraph 155, paragraph 154; and Case C-235/92 P Montecatini vCommission [1999] ECR I-0000, paragraph 179), the various infringements referredto in the contested decision and the applicants' participation in one or more ofthose infringements were established by the Commission in the SO and in thecontested decision on the basis of specific documentary evidence, the conclusivenessof which will be assessed below. Far from reversing the burden of proof, themeasures of organisation of procedure enabled the applicants concerned to referto passages in the SO and documents in the investigation file to which they had nothad access during the administrative procedure and which were of such a natureas to contradict or shed a different light (see paragraph 263 above) on the specificdocumentary evidence on which the Commission relied in finding theabovementioned infringements and/or in order to prove the participation of the applicants in one or more of those infringements, so that they might show that theadministrative procedure had an  even small  chance of reaching a differentoutcome if they had had access to those items during the administrative procedure. 271. Second, Valenciana, Asland, Uniland, Oficemen and Hornos Ibéricos complain thatthere was no list indicating the tenor of the documents making up the investigationfile. The lack of a list prevented them from identifying, with a minimum ofcertainty, the general purport of the documents made available to them and,consequently, to make a detailed examination of the documents which might havebeen relevant to their defence. They submit that the Commission's attitude in thatregard is in marked contrast to those of the Spanish competition authorities. 272. The Court points out that the applicants did not, either during the administrativeprocedure or during the procedure before the Court, have a list giving the tenorof the documents in the investigation file. The only list which they had was the listsent to the addressees of the SO who inspected the file during the administrativeprocedure (see paragraph 5 above). 273. During that procedure, a list giving the tenor of documents in the file is a meanswhereby the undertakings or associations of undertakings concerned can ascertainthe documents which, classified as unavailable, might be relevant for their defence(judgments cited in paragraph 106 above, Case T-30/91 Solvay v Commission,paragraphs 93 and 94, and Case T-36/91 ICI v Commission, paragraphs 103 and104). The object of such a list is therefore to enable the undertakings orassociations of undertakings involved in a proceeding which may lead to a findingof an infringement to assess whether it is expedient to demand access to thedocuments classified as inaccessible, notwithstanding that classification. 274. It follows that the fact that the Commission did not prepare a list which describedeach document in the file cannot as such infringe the rights of the defence. Onlythe documents to which the list (see paragraph 5 above) refers, not the list itself,can contain information useful to the defence of an undertaking or an associationof undertakings. 275. The applicants' argument must therefore be rejected inasmuch as it relates to theadministrative procedure. That argument has already been examined in paragraphs225 to 227 above, to the extent that complaint is made of the lack of a list duringthe procedure before the Court.                                                                     276. Third, Rugby, Castle, Aker and EUROC state that a number of documents whichwere classified on the List (see paragraph 5 above) as available were not in the Box(see paragraph 95 above). 277. However, they were able, by comparing the numbers of documents in the Box withthe numbers of documents classified as accessible on the List, to establish that a number of accessible documents were not in the Box. That could also have beenestablished by comparing the volume of documents classified as accessible on theList with that of the documents in the Box. Nothing prevented the applicants atthat juncture from requesting access to accessible documents that were not in theBox. The fact that certain documents classified as accessible on the List were notin the Box could not therefore impair their defence. 278. Fourth, Vicat, Ciments Français, Lafarge, Rugby, Castle, Aker, EUROC andCementir object to the Commission's reliance on the plea that certain documentswere confidential at the time when access was granted to the investigation fileduring the administrative procedure. Ciments Français states that the Commissionwrongly made use of that plea so as to refuse it access to documents, the contentof which related to subjects touched on in the SO or was clearly public. Vicat,Ciments Français and Lafarge observe that identical documents were classified asnot accessible under Nos 33.126/11040 to 11045 and accessible under Nos33.126/18857 to 18862. Ciments Français adds that those same documents werethen classified as non-accessible under Nos 33.126/16150 to 16155 and 16509 to16514 and that the documents classified as non-accessible under Nos 33.126/14361and 14362 were accessible under 33.126/10997 and 10998. Lafarge also refers todocuments 33.126/2720, 2721, 2850, 2851 and 3245 to 3248. Rugby, Castle, Aker,EUROC and Cementir also claim that the Commission's approach was incoherentas it classified the same document on one occasion as 'not accessible and onanother as 'accessible. 279. The Court points out that those criticisms are relevant only to the extent that theycould show that the rights of the defence were infringed. The argument of CimentsFrançais that the Commission misused the plea of confidentiality so as to refuse togrant it access to various documents only goes to show that proper access was notgiven to the investigation file, a finding already made by the Court (see paragraph152 above). Ciments Français does not, however, explain in what respect that factaffected its right of defence during the administrative procedure. Furthermore,even though, following the measures of 2 October 1996 and 18 and 19 June 1997,the Court placed the applicants concerned in a position to inspect all thedocuments of the investigation file, they have not explained how the dualclassification of the documents referred to in the preceding paragraph impairedtheir rights of defence in the present case. Consequently, the criticisms as to thealleged misuse of the plea of confidentiality during the administrative procedure areirrelevant. 6. Conclusions 280. The Court has reserved examination of the arguments relied upon by the 39applicants referred to in paragraph 124 above that are based on documents relatingdirectly to the infringements which the contested decision finds they committed. The Court must reject the other arguments upon which they rely in support of theirplea that their rights of defence were infringed because the Commission refused togrant them access to documents in the investigation file and to parts of the SOallegedly containing exculpatory evidence. D  The use in the contested decision of incriminating documents not disclosed tothe applicants during the administrative procedure or not identified in the SO 1. Preliminary observations 281. Hornos Ibéricos (T-69/95) submits that it was unable to identify the new evidenceon which the Commission relied in the contested decision. It was unable to expressits views on that evidence during the administrative procedure, inasmuch as theCommission's method of referring to the evidence was different in the contesteddecision. 282. That argument must be rejected. In the parts of the SO relating to the Cembureauagreement and to the EPC (Chapters 1, 2, 10 and 12), which are the only parts ofthe SO relating to the objections raised against Hornos Ibéricos in the contesteddecision (Articles 1 and 6), the various items of evidence were identified byreference to the nature of the documents (minutes of a meeting, internal note,letter, telex, etc.), their date and/or origin. In the contested decision, thedocuments on which the Commission relied in order to establish the variousinfringements were identified in the same way. The only change in relation to theSO is that the contested decision also mentions, for each document, a numberrelating to the pagination of that document in files 33.126 or 33.322. However, themere addition of a number to each document referred to in the contested decisioncannot have prevented Hornos Ibéricos from identifying any new evidence on whichit had not had an opportunity to express a view during the administrativeprocedure. On the contrary, as all the documents in the Box (see paragraph 95above), which followed the order of the SO, and any other document accessible tothe applicant during the administrative procedure bore a number relating to theirpagination in files 33.126 or 33.322, the addition of that numbering for eachdocument used in the contested decision must have facilitated the applicant's taskwhen it drew up its application and needed to identify any new evidence. 283. VNC (T-32/95), SFIC (T-36/95), Ciments Français (T-39/95), Heidelberger(T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), Unicem (T-50/95), Castle(T-56/95), Uniland (T-58/95), Oficemen (T-59/95), Cimpor (T-61/95), SECIL(T-62/95), Italcementi (T-65/95), Holderbank (T-68/95), Aker (T-70/95), EUROC(T-71/95) and Blue Circle (T-88/95) state that during the administrative procedurethey were not given access to certain documents, specified in their applications,which were used against them in the contested decision. They consider that forthat reason the contested decision should be annulled as against them. 284. In that connection, the Court points out that a document can be regarded as adocument that incriminates an applicant only where it is used by the Commissionto support a finding of an infringement in which that party is alleged to haveparticipated. It does not suffice that an applicant shows that it was unable toexpress its views during the administrative procedure on a document used in somepart of the contested decision. For such a line of argument to succeed, it isnecessary for the applicant to prove that in the contested decision the Commissionused a new item of evidence in order to sustain an infringement in which theapplicant is alleged to have participated. 285. For the purposes of this analysis and before drawing conclusions from it (6), fourcategories of documents will be distinguished: documents which were neither citednor mentioned in the contested decision (2); documents which, although mentionedin the contested decision to describe a fact or conduct, were not used to make afinding of an infringement in the contested decision (3); documents which althoughsupporting the finding of an infringement in the contested decision do not relateto the infringements attributed to the applicants relying on the documents inquestion (4); documents used in the contested decision in the context of aninfringement attributed to the applicant relying on them (5). 2. Documents neither cited nor mentioned in the contested decision 286. Oficemen complains of the use by the Commission of documents 33.322/1582 to1588 as new items of evidence. However, the Court finds that those documentswere neither cited nor mentioned in the contested decision. The same holds fordocuments 33.322/59, 71 to 78, 80 to 83, 86, 87, 91, 94, 169, 171, 178 to 180, 1226to 1234, 1312, 1313, 1315, 1523 to 1527, 1531, 1636 to 1796, 1819 and 2952 to 2956and documents 33.126/11507 to 11516, 11494 to 11504, 13077 to 13129, 13132 to13177, 19393 to 19401 and 19878 to 19901, to which Cimpor and SECIL refer, andfor document 33.126/18951, to which Italcementi refers. Nor did the contesteddecision mention the organisation chart of Cembureau which, according to Unicem,is mentioned in recital 15, paragraph 4, of that decision. 287. The Court finds that none of the above documents were used as incriminatingevidence in the contested decision. The applicants' argument must therefore berejected. 3. Documents mentioned in the contested decision to describe a fact or conduct,but not used to make a finding of an infringement 288. SFIC, Lafarge, Aalborg, Uniland, Oficemen, Italcementi, Holderbank and BlueCircle refer, in their applications, to documents which were mentioned in thecontested decision to describe a fact or conduct, but not used to make a finding of an infringement. However, such documents cannot be regarded as incriminatingevidence. 289. Blue Circle complains that in recital 9, paragraph 6, of the contested decision theCommission relied on a table comparing cement prices in various States which hadnot been disclosed to it during the administrative procedure. It is clear that thetable in question was brought to the attention of the Commission by the Italianindustry during the hearing of 2 March 1993, in which Blue Circle did not wish totake part (contested decision, recital 3, paragraph 2). However, the Commissionrefers to that table in recital 9, paragraph 6, of the contested decision, solely inorder to illustrate the differences in production costs, and thus in prices, betweenthe various member countries of Cembureau. The table in question is nottherefore evidence on which the Commission relies in support of its finding of oneor other of the infringements in the contested decision. 290. Blue Circle also complains that the Commission did not mention documents33.126/6042 and 6043 (internal note of Vicat of 1 September 1982; contesteddecision, recital 11, paragraph 4) in the SO. Italcementi refers to all the documentsmentioned in recital 11, paragraph 4, of the contested decision. The Court pointsout that the documents cited in that part of the contested decision show that someEuropean cement producers were in a position to sell cement at more than 200kilometres from their established works. However, those documents were not usedby the Commission to make a finding of one or other infringement referred to inthe operative part of the contested decision. 291. Aalborg and Blue Circle refer to documents 33.126/296 to 298, 2388 to 2405, 9434to 9450 and 11725 (contested decision, recital 23, paragraphs 3 and 5), whichconcern the agreements and concerted practices relating to the Belgian,Netherlands and German markets. Nevertheless, those agreements and concertedpractices were not ultimately the subject of a finding of infringement in thecontested decision. Nor is the intergovernmental agreement between Greece andthe United Kingdom, to which document 33.126/2907 refers (contested decision,recital 28, paragraph 13), which Aalborg and Blue Circle also cite, an objection thatwas the subject of a finding of infringement in the contested decision. 292. Blue Circle also complains that the Commission did not mention in the SOdocuments 33.126/11617 to 11633 (contested decision, recital 17, paragraph 3), onwhich it nevertheless relied in recital 17 of the contested decision, headed 'Thediscussions on fair or healthy or correct competition. However, as thediscussions on 'fair or healthy or correct competition were not the subject-matterof any specific objection in the operative part of the contested decision, thedocuments relied on cannot be regarded as incriminating evidence on which theapplicants should have had an opportunity to express their views during theadministrative procedure. 293. Blue Circle also refers to documents 33.126/11523 and 11524, the Commission'srequest to Cembureau to produce documents (contested decision, recital 18,paragraph 4). However, such a request is obviously not incriminating evidenceagainst any applicant. Only the reply to that request was used as incriminatingevidence in the contested decision, that is to say, document 33.126/11525 (contesteddecision, recital 18, paragraph 4). 294. Documents 33.126/19210 to 19217 (contested decision, recital 27, paragraph 2) towhich Blue Circle also refers, the contract concluded on 30 April 1986 betweenCalcestruzzi and Titan, are not used in the decision as evidence of anyinfringement. 295. The same holds for document 33.126/4365 (contested decision, recital 35, paragraph5), to which Blue Circle refers, which is a checklist of the documents found in theoffice of the sales manager of Ciments Français. 296. Lafarge objects to the use, in support of the finding of an 'infringement, ofdocuments from the file of the German Bundeskartellamt relating to a decision bythat body dated 12 September 1988. It refers in that regard to documents33.126/20384 to 20394, 20416, 20417, 20418 to 20443, 20481, 20492 to 20495 and20497 to 20499. At the hearing, in reply to a question from the Court, Lafargeexplained that the infringement in question was the cartel on the cement marketin south-west Germany which, it claims, was the subject of the chapters in the SOdealing with the German market (chapters 6 and 16). Lafarge's argument must berejected: the cartel on the cement market in south-west Germany is not the subjectof the contested decision and the Commission never alleged that Lafarge took partin it. Even if Lafarge's complaint were that the Commission used documents fromthe German Bundeskartellamt's file relating to its decision of 12 September 1988to support the finding of the infringement referred to in Article 3(3)(a) of thecontested decision, namely the Franco-German Agreement, the Court finds that theBundeskartellamt's decision of 12 September 1988 and the documents relating tothat decision were not used in the SO and in the contested decision in order toprove the existence of the Franco-German Agreement and/or Lafarge'sparticipation in it. They were cited by the Commission solely in order to show thatLafarge was interested by the south-west German cement market because of thespecial situation of its subsidiary Wössingen on that market (SO, chapter 2, point12; contested decision, recital 22, paragraph 11; see paragraph 2380 below). Inthose circumstances, there cannot be any question of infringement of Lafarge'srights of defence. 297. SFIC complains of the use as new evidence in the contested decision of statementsmade by Ciments Français at the hearing (contested decision, recital 22, paragraph15). In those statements Ciments Français explained that the change in thedelivery gap between France and Germany after 1986 could not be linked to theexistence of an alleged Franco-German agreement. However, that explanation was rejected by the Commission in the contested decision (recital 22, paragraph 15); itis not therefore part of the set of documentary evidence on which the Commissionrelied in recital 22, paragraphs 1 to 12, in order to prove the existence of thevarious infringements relating to the Franco-German agreement. The statementsof Ciments Français reproduced in recital 22, paragraph 15, of the contesteddecision cannot therefore be regarded as new evidence. 298. Aalborg, Uniland, Oficemen, Italcementi, Holderbank and Blue Circle refer todocuments 33.126/19009 and 19010 (contested decision, recital 25, paragraph 43),which are the minutes of a meeting of 6 November 1986 between representativesof the European cement industry and Mr Sutherland, Member of the Commissionresponsible for competition policy, regarding the 'Greek problem. The Courtfinds, however, that this document relates to the lobbying activities which wereconducted at that time in regard to that issue but to which the Commission did notobject in the contested decision (see footnote 115 in the contested decision). Thatdocument was not therefore incriminating evidence. Similarly, documents33.126/18844 and 18845 (contested decision, recital 25, paragraph 19), to whichBlue Circle also refers, were not incriminating evidence, as they also concern thelobbying activities relating to the 'Greek problem. 299. Aalborg and Blue Circle refer also to document 33.126/22289a, cited in recital 30,paragraph 6, of the contested decision. It is a letter of 31 December 1992 in whichMr Gac informed the Commission that the European Cement ManufacturersExport Committee ('ECMEC) was being dissolved as from 1 January 1993. However, the Commission did not rely on that document to substantiate any of theinfringements found in the contested decision. 300. Both those applicants also refer to the telex from Holderbank of 13 August 1986mentioned in recital 25, paragraph 20, of the contested decision. It refers to theBlue Circle study on the possibility of investing in Halkis (document 33.126/18846). However, that document was not used by the Commission to substantiate any ofthe infringements found in the contested decision. It was not thereforeincriminating evidence. 301. Oficemen complains that it did not have access to documents 33.126/11260 to11267, 11269 and 11270 during the administrative procedure. Those documents arethe lease between Blue Circle and the ECMEC, to which reference was made inthe contested decision in order to explain an undisputed, material fact, namely thatthe ECMEC had its headquarters in the offices of Blue Circle (contested decision,recital 30, paragraph 4). They were not, however, used as incriminating evidencein the contested decision. Nor were they taken into account in order tocharacterise conduct in the ECEC and the EPC as infringements (contesteddecision, Articles 5 and 6). 302. Blue Circle refers, lastly, to documents relating to the activities of the EPC whichare mentioned in footnotes 183 and 184 in the contested decision but on which theCommission did not rely either to find the infringement referred to in Article 6 orto find that Blue Circle, or any other applicant, had participated in thatinfringement. Those documents are documents 33.126/11421 to 11430, 12762 to12770, 12788 to 12799, 12805 to 12807, 12815, 12817 to 12832, 12967 to 13050,14062 to 14085, 14094 to 14097, 14148 to 14154, 18169 to 18172, 18179, 18180 and18188 to 18191, mentioned in footnote 183 (contested decision, recital 37,paragraph 5) and documents 33.126/12732 to 12734, 12761, 12808 to 12814, 12864to 12874, 12876 to 12904, 12915 to 12966, 13854 to 14021, 14027 to 14029, 14043to 14061, 14086 to 14092, 14098 to 14147, 14155 to 14169, 14175 to 14180, 14186to 14229, 14237 to 14243 and 14270 to 14284, mentioned in footnote 184 (contesteddecision, recital 37, paragraph 6). Those documents are not therefore incriminatingdocuments used by the Commission in the contested decision. 303. It follows from the whole of the foregoing that none of the documents referred tounder this heading can be regarded as an incriminating document used by theCommission in the contested decision. SFIC, Lafarge, Aalborg, Uniland, Oficemen,Italcementi, Holderbank and Blue Circle cannot therefore refer to any of thosedocuments in order to show that the Commission did not grant them anopportunity during the administrative procedure to express their views onincriminating documents relied upon in the contested decision. 4. Documents supporting the finding of an infringement in the contested decisionbut not relating to infringements attributed to the applicants relying on thosedocuments 304. SFIC, Ciments Français, Aalborg, Uniland, Oficemen, Holderbank, Aker, EUROCand Blue Circle refer in their applications to documents which, although supportingthe finding of an infringement in the contested decision, do not relate toinfringements attributed to the applicants relying on those documents. As thosedocuments were not used against them in the contested decision, the applicantsconcerned cannot allege that their rights of defence were infringed because theycould not express their views on those documents during the administrativeprocedure. 305. Thus, Aker and EUROC assert that they were not given access to a series ofdocuments relating to the information exchanges on prices, in particular todocuments 33.126/15065 to 15305 (contested decision, recital 16, paragraphs 8 to22). Blue Circle complains that the Commission made no mention in the SO ofdocument 33.126/11592 (contested decision, recital 16, paragraph 3) relating to theexchange of specific information, and documents 33.126/15066, 15099 to 15102,15104 to 15107, 15109, 15111, 15112, 15115 to 15122, 15126, 15127, 15129 to 15167and 15170 to 15305 (contested decision, recital 16, paragraphs 8 to 21) relating to the periodic exchanges of information. In that regard it suffices to point out thatthose applicants were not found to have committed infringements in the form ofthe exchanges of price information (contested decision, Article 2(1) and (2)). Accordingly, the documents relating to those objections cannot be characterised asevidence incriminating them. 306. Likewise, documents 33.322/1410 to 1412 (contested decision, recital 21, paragraph5), to which Ciments Français refers, documents 33.322/1311, 1314, 1397 to 1399,1406 to 1408, 1410 to 1412 and 2901 (contested decision, recital 21, paragraphs 2to 6) to which Aalborg and Blue Circle refer, and documents 33.322/79, 84, 85, 88to 90, 158 to 162, 170, 172, 177, 181, 252, 270 to 276, 485, 486, 493 to 495, 512, 513,530 to 532, 537, 538, 549, 550, 566 and 567 (contested decision, recital 21,paragraphs 5 to 8) to which Blue Circle refers, relate to the Spanish-Portugueseagreement referred to in Article 3(2) of the contested decision. Those applicantsare not alleged to have participated in that agreement and, contrary to Aalborg'sassertions, the Commission did not rely on it any more than it relied on the otheralleged measures for implementing the Cembureau agreement in order to establishthe very existence of that agreement: the Commission deduced the existence of theCembureau agreement exclusively from the bundle of specific documentaryevidence referred to in recitals 18, 19 and 45 of the contested decision. 307. Documents 33.126/818 and 819 (contested decision, recital 22, paragraph 11) towhich Aalborg refers, and documents 33.126/3573 (contested decision, recital 22,paragraph 10), 33.126/16556 (contested decision, recital 22, paragraph 11) and33.126/15161 to 15163 and 15168 to 15170 (contested decision, recital 22, paragraph15) to which Blue Circle refers, all relate to the Franco-German agreements andconcerted practices which are the subject of Article 3(3) of the contested decision,for which those applicants were not held responsible. The documents relating tothe Franco-German agreements and concerted practices cannot therefore becharacterised as evidence incriminating Aalborg and Blue Circle. 308. Ciments Français refers to the statistics of BDZ referred to in recital 22, paragraph18, of the contested decision. Those statistics were not, however, used asincriminating evidence against it. They relate to the infringement referred to inArticle 3(3)(b) of the contested decision, in which, according to that provision, onlySFIC and BDZ participated. 309. Aalborg refers also to Holderbank's reply to the Commission's question 7e relatingto Holderbank's letters of 22 September 1986 regarding the payment of sharequotas in Interciment (contested decision, recital 26, paragraph 9) and to the letterof 3 May 1993 from Holderbank's lawyer relating to the dissolution of Interciment(contested decision, recital 26, paragraph 16). Those documents concern theinfringement relating to the agreement on the setting-up of Interciment referredto in Article 4(2) of the contested decision, an infringement which Aalborg was notalleged to have committed. 310. Aalborg submits, however, that the Commission relied on the letter of 3 May 1993from Holderbank's lawyer in order to establish the date on which the allegedinfringements ceased (contested decision, recital 65, paragraph 4) and that it istherefore evidence used against it in the contested decision. SFIC, which isreferred to in Article 4(2) of the contested decision, also considers that the letteris a new item of incriminating evidence, to which it should have had access duringthe administrative procedure and which should have been mentioned in the SO. 311. Those arguments must be rejected. That letter cannot be regarded as anincriminating document. In the grounds relating to the setting of the fines, theCommission states as follows in recital 65, paragraph 4, of the contested decision:'While the Commission is able to establish the date on which the infringementconstituted by the Cembureau agreement or principle commenced, it has nocertainty that the infringement ever really ceased, and it cannot therefore establisha date for the ending of the infringement. However, since the apparently finalmanifestation of the agreement, known to the Commission, is the liquidation ofInterciment SA on 26 March 1993, the Commission has used that date fordetermining the reference period for the fine. It is plain from that passage thatif the Commission had not had the information supplied in the letter of 3 May1993, it would have taken the view, for the purpose of setting the fines, that theinfringement constituted by the Cembureau agreement was still continuing whenthe contested decision was adopted, as had been its view in the SO (point 93). That letter therefore caused the Commission to shorten the reference periodadopted for the purpose of calculating the fines, thus benefiting all the addresseesof the contested decision, including SFIC and Aalborg, which do not therefore haveany interest in seeking to have that document excluded from the proceedings. 312. Ciments Français, Aalborg, Uniland and Oficemen refer to documents 33.126/12145to 12159 and 12161 to 12342 (contested decision, recital 27, paragraph 6). Thosedocuments concern agreements concluded between Calcestruzzi and the threeItalian cement producers, Italcementi, Unicem and Cementir. It is clear fromrecital 55, paragraph 2, of the contested decision that the Commission relied onthose documents as proof of the infringement complained of in Article 4(3)(b) ofthe contested decision, namely the agreement between the Italian cementproducers that aimed to prevent imports of Greek cement by Calcestruzzi. Sincethat infringement was not alleged to have been committed by Ciments Français,Aalborg, Uniland and Oficemen, they cannot claim that their rights of defence wereinfringed by the fact that they were not able to express their views on thosedocuments. 313. Uniland, Oficemen and Blue Circle refer to document 33.126/19208 (contesteddecision, recital 27, paragraph 10) and Blue Circle to documents 33.126/19203 and19204 (contested decision, recital 27, paragraphs 8 and 9). Contrary to theindication in the contested decision, document 33.126/19208 does not in factcorrespond to the telex of 2 June 1987 in which Calcestruzzi repeated to Titan its request for a meeting with the Italian cement producers in order to resolve theproblem linked to the non-performance of the contract to purchase Greek cement,but to a telex of 29 January 1987 from Titan to Calcestruzzi, which is not referredto in the contested decision. The telex of 2 June 1987 from Calcestruzzi to Titan,a large extract of which is reproduced in recital 27, paragraph 10, of the contesteddecision, in fact corresponds to document 33.126/19218, a document which was inthe Box (see paragraph 95 above). It supports the Commission's case relating tothe infringement referred to in Article 4(3)(b), namely the agreement between theItalian cement producers that aimed to prevent imports of Greek cement byCalcestruzzi. The same holds for documents 33.126/19203 (telex from Titan toCalcestruzzi of 20 May 1987 (contested decision, recital 27, paragraph 9)) and33.126/19204 (telex from Italcementi to Titan of 13 May 1987 (contested decision,recital 27, paragraph 8)) to which Blue Circle refers. As the infringement referredto in Article 4(3)(b) was not attributed to Uniland, Oficemen and Blue Circle, theabovementioned documents cannot be regarded as evidence used against them inthe contested decision. 314. Aalborg also refers to documents 33.126/10926 to 10941, 14446 to 14453 and 20057to 20064 (contested decision, recital 28, paragraphs 15, 17 and 19), which relate tothe infringements referred to in Article 4(4)(b), (d) and (f) respectively of thecontested decision; those infringements are not alleged to have been committed bythe applicant. Uniland refers to documents 33.126/10908 to 10913, 10927 to 10935,10937 to 10940, 10897 to 10901, 10903 to 10905, 19562 to 19574 and 19576 to19579 (contested decision, recital 28, paragraph 15), 19501, 19502, 19504 to 19510,19482, 19483, 19485 to 19487, 19489, 19814 to 19816, 19818, 19820 to 19826 and19828 to 19843 (contested decision, recital 28, paragraph 16), 20058, 20060, 20061,20064 and 20066 to 20070 (contested decision, recital 28, paragraph 17), 19708,19711 to 19716, 19718 to 19721 and 14407 (contested decision, recital 28,paragraph 18), 14455 to 14465, 14467 to 14469 and 14446 to 14453 (contesteddecision, recital 28, paragraph 19), 18118 to 18121 and 18125 to 18127 (contesteddecision, recital 28, paragraph 20), 7631 (contested decision, recital 28, paragraph21), 19622 to 19627, 19629, 19586, 19588 to 19590, 19592 to 19595, 19598 to 19600,19602, 19604, 19606, 19608, 19618 to 19620, 19631, 19633, 19634, 19636 to 19644,19646 to 19650, 19652 and 19654 (contested decision, recital 28, paragraph 22), allof which relate to the contracts or transactions for the purchase of Greek cementto which the Commission objected in Article 4(4)(b) to (h) of the contesteddecision on the ground that they were carrot actions. None of those infringementswas, however, alleged against Uniland. Aalborg and Uniland cannot thereforeallege that their rights of defence were infringed by the fact that they were not ableto express their views on the abovementioned documents. 315. Blue Circle also refers to documents 33.126/19482 to 19489, 19501 to 19511 and19814 to 19843 (contested decision, recital 28, paragraph 16) relating to theagreement between Titan and Holderbank objected to in Article 4(4)(c) of thecontested decision; documents 33.126/20057 to 20071 (contested decision, recital 28, paragraph 17), which relate to the agreement between Heracles andHolderbank objected to in Article 4(4)(d) of the contested decision; documents33.126/14407 to 14417 (contested decision, recital 28, paragraph 18) relating to theagreement between Lafarge and Titan objected to in Article 4(4)(e) of thecontested decision; documents 33.126/14446 to 14453, 18179 and 18180 (contesteddecision, recital 28, paragraph 19), relating to the agreement between Lafarge andHeracles objected to in Article 4(4)(f) of the contested decision; documents33.126/7629 to 7631, 18117 to 18121 and 18125 to 18127 (contested decision, recital28, paragraphs 20 and 21), relating to the concerted practice by CBR, Heracles andTitan objected to in Article 4(4)(g) of the contested decision; and documents33.126/19585 to 19620, 19621 to 19629 and 19631 to 19656 (contested decision,recital 28, paragraph 22), relating to the agreement between Titan, Aker andEUROC alleged in Article 4(4)(h) of the contested decision. However, as thosedocuments were used in the contested decision as evidence of infringements forwhich Blue Circle was not held responsible, they cannot be regarded asincriminating evidence relied upon as against it. 316. Lastly, Blue Circle complains that the Commission did not mention in the SOvarious documents concerning the ECEC: documents 33.126/12524 to 12534, 18201to 18204 (contested decision, recital 31, paragraph 3) and documents 33.126/3410to 3412, 3422 to 3433, 6139 to 6142, 12544 to 12674, 12706 to 12709, 12721 to12728, 14027 to 14029, 14245 to 14249, 14257 to 14262, 14289 to 14298, 14300,14301, 14303 to 14309, 14311 to 14316, 16766 and 16790 to 16824 (contesteddecision, recital 33, paragraphs 1 to 5). However, as Blue Circle was not allegedto have participated in the concerted practices in the framework of the ECEC, thesubject-matter of Article 5 of the contested decision, those documents cannot beregarded as evidence which was used against it. The same holds for otherdocuments to which Blue Circle refers (documents 33.126/3418 to 3421, 12607 to12610, 12614 to 12616, 12627 to 12634, 12667 to 12674, 14184, 14257 to 14262,14266, 14267, 14303 to 14315, 18218 and 18219; contested decision, recital 32,paragraphs 1 to 3), which concern the link between the EPC, in which Blue Circleparticipated, and the ECEC, since that link between the two export committees wasused solely in order to characterise the ECEC's activities as infringements(contested decision, recital 58, paragraph 3(b)). 317. It follows that none of the abovementioned documents identified by SFIC, CimentsFrançais, Aalborg, Uniland, Oficemen, Holderbank, Aker, EUROC and Blue Circlewere used against them as incriminating documents. Those applicants cannottherefore refer to one or other of those documents in order to show that theCommission did not give them an opportunity during the administrative procedureto express their views on incriminating documents used in the contested decision. 5. Documents used in the contested decision in the context of an infringementattributed to the applicant who is relying on them 318. First, the Court points out that documents used in the contested decision in thecontext of an infringement attributed to an applicant are not necessarily allincriminating documents used against it, on which it should have had anopportunity to express its views during the administrative procedure. Its rights ofdefence are not infringed where a document to which it was not given access wasused solely in the contested decision to substantiate an allegation that anotherapplicant participated in the same infringement or where it was used to refute aspecific argument relied upon by such an applicant during the administrativeprocedure. 319. Thus, document 33.126/15983 (contested decision, recital 25, paragraph 9), onwhich Uniland, Holderbank and Blue Circle rely, was used only to prove thatItalcementi participated in the meeting in Stockholm on 9 June 1986. It is a letterfrom Italcementi of 21 March 1990 in reply to the Commission's request forinformation, in which Italcementi states: 'As regards the Stockholm meeting, MrPesenti [of Italcementi] remembers having participated, on the margins of aCembureau meeting, with representatives of other European producers. Thatdocument does not contain any evidence of such a nature as to incriminateUniland, Holderbank or Blue Circle. It is not therefore used as incriminatingevidence against them. Nor do documents 33.126/18771 and 18755 (contesteddecision, recital 25, paragraph 9), to which Blue Circle also refers, constituteincriminating evidence used against Blue Circle inasmuch as they confirm thepresence of the Spanish and Swiss Head Delegates at the meeting in Stockholm on9 June 1986. 320. Uniland and Blue Circle also refer to documents 33.126/14828 to 14860 mentionedin recital 29, paragraph 4, of the contested decision; they are documents of theSFIC on which the Commission relies at that point of the contested decision torefute the SFIC's assertions that it did not take part in any meeting of the ETF andknew nothing of its activities. It is not therefore incriminating evidence usedagainst Uniland and Blue Circle in the contested decision. 321. In that same context, Blue Circle complains that the Commission did not refer inthe SO to documents 33.126/12808 to 12814, 12915 to 12966, 12967 to 12970, 12987to 12998 and 13004 to 13011, mentioned in recital 35, paragraph 3, of the contesteddecision, to substantiate its argument that Valenciana took part in the meetings ofthe EPC after 1 January 1986. It is, however, clear that the documents in questionwere not used as incriminating evidence against Blue Circle in the contesteddecision. The same is true of documents 33.126/2035 to 2043, 2063 to 2069 and2436 to 2447, to which Blue Circle also refers, which were mentioned (contesteddecision, recital 44, paragraph 3) in order to refute a specific argument which theFIC had raised at the hearing. 322. Second, the Court points out that in their applications several applicants referredto documents which had been used against them in the contested decision but to which they allegedly did not have access during the administrative procedure orwhich were not sufficiently identified in the SO. 323. In principle, only documents which have been cited or mentioned in the SO arevalid evidence (Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph21; Case T-11/89 Shell v Commission [1992] ECR II-757, paragraph 55; and CaseT-13/89 ICI v Commission [1992] ECR II-1021, paragraph 34). However,documents appended to the SO which are not mentioned in it may be used in thedecision as against the applicant if he could reasonably deduce from the SO theconclusions which the Commission intended to draw from them (Shell vCommission, cited above, paragraph 56, and T-13/89 ICI v Commission, citedabove, paragraph 35). 324. In the present case, there were no appendices to the SO. When access was givento the file, the Commission made available to each addressee, by means of the Box(see paragraph 95 above), a set of documents substantiating the SO. Thedocuments thus made available were comparable to appendices to the SO. Theytherefore constitute admissible evidence against the applicants inasmuch as theycould have reasonably deduced from the SO the conclusions which the Commissionintended to draw from them (judgments cited in paragraph 323 above, AKZO vCommission, paragraph 21, and T-13/89 ICI v Commission, paragraph 34). 325. SFIC contends, first of all, that although the SO is based on various documentsidentified in it the Commission should have made clear which documents werebeing relied upon as against which addressee. That argument must be rejected:where an addressee of the SO was specifically the subject-matter of an objectionset out in that SO it should have realised that the documents cited in support ofthat objection concerned it. 326. As regards the evidence used to support the finding of the infringement referredto in Article 1 of the contested decision, Blue Circle complains that theCommission did not mention in the SO the statement by Mr Kalogeropoulos at theHeracles board meeting of 25 June 1986 (contested decision, recital 18, paragraph5; documents 33.126/19875 to 19877; see paragraph 816 below). However, theCourt points out that the passage from that statement, set out in recital 18,paragraph 5, of the contested decision, was cited word for word in point 9 of theSO. Furthermore, the documents in question were in the Box (see paragraph 95above). In those circumstances, they must be considered to be admissible evidenceagainst Blue Circle and the other addressees of the contested decision. 327. Lafarge, Unicem, Cimpor and Italcementi refer to documents 33.126/11332 to11337, two internal notes of Blue Circle, the content of which is set out in recital18, paragraphs 2 and 3, of the contested decision in the part of 'The Factsrelating to the existence of the Cembureau agreement. Those notes were in theBox (see paragraph 95 above). Moreover, the notes which refer to a Cembureau principle of non-transhipment to home markets (documents 33.126/11332 to 11334and 11335 to 11337) were cited in recital 9 of the SO entitled 'The Cembureauagreement or Cembureau principle of not transhipping to internal Europeanmarkets. In those circumstances, the abovementioned notes of Blue Circle areevidence which may be relied upon as against all the addressees of the contesteddecision. 328. Unicem, Irish Cement and Blue Circle also contend that they had no opportunityduring the administrative procedure to reply to Cembureau's observations on thosesame notes. Those observations, set out in documents 33.126/11525 and 13568 to13573 (contested decision, recital 18, paragraph 4), were expressly referred to inpoint 9 of the SO. They were, moreover, in the Box (see paragraph 95 above). Unicem, Irish Cement and Blue Circle cannot therefore allege that they had noopportunity during the administrative procedure to submit their observations onthose documents. 329. Italcementi and Blue Circle also complain that the Commission did not rely, in theSO, on a number of documents relating to meetings of the Head Delegates. Asregards the meeting of the Head Delegates on 14 January 1983, they refer todocument 33.126/11581 (list of participants in the meeting of 14 January 1983;contested decision, recital 19, paragraph 4), and to documents 33.126/11578 and11579 (memorandum on the structure of the meeting; contested decision, recital19, paragraph 6). Blue Circle also refers to various documents concerning theamendment to the initial agenda for the meeting on 14 January 1983: documents33.126/11580 (draft agenda of that meeting; contested decision, recital 19,paragraph 3), 33.126/11559 (telex from Cembureau to Mr Van Hove of 17November 1982; contested decision, recital 19, paragraph 3), 33.126/11558 (telexfrom Mr Van Hove to Cembureau of 17 November 1982; contested decision, recital19, paragraph 3) and No 33.126/11565 (minutes of the Executive Committeemeeting on 22 December 1982; contested decision, recital 19, paragraph 3). Asregards the meeting of the Head Delegates on 19 March 1984, Italcementi andBlue Circle refer to the following documents: document 33.126/11715 (tableattached to the letter calling the meeting; contested decision, recital 19, paragraph7) and documents 33.126/11699 to 11700 (list of participants in the meeting inquestion; contested decision, recital 19, paragraph 8). Blue Circle also refers todocuments Nos 33.126/11714 and 11730 (letter calling the meeting of the HeadDelegates on 19 March 1984; contested decision, recital 19, paragraph 7) andItalcementi to documents 33.126/11717 to 11727 (documents attached to the lettercalling the meeting of 19 March 1984; contested decision, recital 19, paragraph 7). As regards the meeting of 7 November 1984, Italcementi and Blue Circle refer todocuments Nos 33.126/11748 (letter calling the meeting; contested decision, recital19, paragraph 12) and 33.126/11751 (draft introductory statement for the meeting,contested decision, recital 19, paragraph 12). Italcementi refers also to document33.126/11749 (agenda of the meeting on 7 November 1984; contested decision,recital 19, paragraph 12) and Blue Circle to document 33.126/11752 (list of participants in the meeting on 7 November 1984; contested decision, recital 19,paragraph 13). 330. All those documents were in the Box (see paragraph 95 above). In the SO(Chapter 2, point 9) the Commission had stated: 'Several Cembureau documentsrelating to Head Delegates meetings referred to the fact that the Cembureauagreement or Principle was developed and established within Cembureau. Inthat connection, it referred expressly (same point) to the Head Delegates meetingsof 14 January 1983, 19 March 1984 and 7 November 1984. In those circumstances,the applicants were able to understand that all the documents in the Box thatreferred to their presence at those meetings and/or disclosed the content of thediscussions at those meetings might be used against them in the Commission'sdecision. The documents referred to in the previous paragraph therefore constituteadmissible evidence against all the addressees of the contested decision. 331. As regards the evidence on which the Commission relied in finding theinfringement referred to in Article 3(2) of the contested decision, the Spanish-Portuguese agreement, Cimpor submits, first, that in the international part of theSO no reference was made to documents 33.322/155 to 157. Those documents areCimpor's record of the meeting held on 22 July 1985 between representatives ofthe Spanish and Portuguese producers. That record, which states that therepresentatives of Spanish and Portuguese cement producers expressed their clearsupport for the principle that there should be no cement movements from Spainto Portugal and from Portugal to Spain, was used by the Commission in recital 21,paragraphs 2 and 11, and recital 49, paragraph 1, of the contested decision in thecontext of the infringement found in Article 3(2) thereof. It had been mentionedin point 11 of the international part of the SO (Chapter 2) relating to the Spanish-Portuguese agreement and had even been cited word for word there. Thatdocument, which was also in the Box (see paragraph 95 above), is thereforeadmissible evidence against Cimpor. 332. Oficemen, Cimpor and SECIL object to the use of the Hispacement document(documents 33.322/2898 to 2903) in recital 21, paragraphs 2 and 11, of thecontested decision. They state that although that document was reproduced in partin the chapter of the SO relating to Spain (Chapter 8, point 55(c)), to whichOficemen had access during the administrative procedure, and in the chapter of theSO relating to Portugal (Chapter 9, point 56(b)) to which Cimpor and SECIL hadaccess during the same procedure, it was, on the other hand, not mentioned at allin the international part of the SO. It is not therefore admissible evidence. 333. The Court points out that point 55(c) of Chapter 8 of the SO dealing with Spainis entitled 'Movements of cement between Spain and Portugal. Point 56(b) ofChapter 9 of the SO dealing with Portugal is entitled 'Movements of cementbetween Portugal and Spain. In those passages of the SO it is explained thatrepresentatives of Spanish and Portuguese cement producers indicated their full support for the principle of excluding any movement of cement between the twocountries in either direction. Those passages refer expressly to the Hispacementdocument (document 33.322/2898 to 2903), on which Oficemen, Cimpor and SECILrely, as follows: 'That total support for excluding any movement of cement ineither direction between the two countries was ratified by an agreement adoptedin the last 10 days of October 1985 or in December 1985. In fact, in document17-4 discovered at Hispacement (documents 33.322/2898 to 2903) concerning themeeting of 28 May 1986 between SECIL and Hispacement, it is stated: MrBordado informs me that the chairmen of the Portuguese cement companies metat the premises of Oficemen with their Spanish counterparts in December last year,at which time it was decided to agree on a reciprocal ban on exports between thetwo countries. Accordingly, Oficemen, on reading point 55(c) of the chapter ofthe SO relating to Spain, and Cimpor and SECIL, on reading point 56(b) of thechapter of the SO relating to Portugal, must have been able to understand thatthose passages and the Hispacement document (documents 33.322/2898 to 2903)to which express reference had been made, had to be related to the objectionrelating to the Spanish-Portuguese agreement set out in the international chaptersof the SO (SO, Chapter 2, point 11, and Chapter 10, point 61(c)). According tothe SO, that agreement concerned the 'agreements entered into between theassociation of Spanish producers Oficemen ... and the Portuguese producersCimpor and SECIL (point 11) not to export to their respective traditional salesterritories (SO, Chapter 10, point 61(c)). Having regard to the obvious linkbetween the Hispacement document (documents 33.322/2898 to 2903) and theobjection relating to the Spanish-Portuguese agreement, and despite the positionof the reference to that document in the SO, the Commission was entitled, in thecontested decision, to use against the applicants concerned the parts of thatdocument which had been accessible to Oficemen, Cimpor and SECIL during theadministrative procedure (see paragraphs 369 to 372 below). 334. Cimpor and SECIL also object to the use of documents 33.322/1311 and 1314 asincriminating evidence in the contested decision. These documents are the minutesof the Oficemen board meeting referred to in recital 21, paragraph 3, of thecontested decision to support the finding that a meeting had been held betweenOficemen, Cimpor and SECIL on 20 January 1986, the object of which was amutual exchange of information as to changes in exports between Spain andPortugal. However, in point 11 of the SO (Chapter 2) the Commission had alreadyobserved: 'so as to overcome any problems posed by exports, meetings betweenPortuguese and Spanish producers were held [inter alia on] 20 January 1986. Inthose circumstances, Cimpor and SECIL could reasonably have foreseen theconclusions which the Commission was going to draw from documents 33.322/1311and 1314, both of which were in the Box (see paragraph 95 above). 335. Cimpor and SECIL also submit that in the international part of the SO there wasno reference to other evidence adduced by the Commission in recital 21,paragraphs 4 and 5, of the contested decision (documents 33.322/162, 163 to 166, 170, 172, 1406 to 1408 and 1410 to 1412). Cimpor also criticises the use ofdocuments 33.322/181 and 252 in recital 21, paragraph 7, of that decision. 336. Documents 33.332/163 to 166 and 33.322/1406 to 1408, on the one hand, anddocuments 33.322/1410 to 1412, on the other, relate, respectively, to the minutesof the meetings on 23 January and 6 March 1987 between the Portuguese andSpanish producers. The SO explicitly referred to the holding of those meetings,both in point 11 of Chapter 2 of the SO, dealing with the international objectionrelating to the Spanish-Portuguese agreement and in point 56(b) entitled'Movements of cement between Portugal and Spain of Chapter 9 of the SOrelating to Portugal. Although point 56(b) is in a national chapter of the SO,Cimpor and SECIL must have realised that this passage of the SO had to be placedin the context of the objection relating to the Spanish-Portuguese agreement set outin the international chapters of the SO (SO, Chapter 2, point 11, and Chapter 10,point 61(c)). Furthermore, point 11 of Chapter 2 of the SO, relating to theSpanish-Portuguese agreement, states: 'The solution to [the problem of exports ofcement to Spain by Portuguese distributors, retailers and transport undertakings]seems to have been found at the meeting on 23 January 1987: in the medium term,a policy of increasing Portuguese cement prices; in the short term, a policy ofdiscouraging Portuguese operators carrying out frontier-zone exports. Themeeting of 6 March 1987 was also expressly referred to in point 11 of the SO asone of the Spanish-Portuguese meetings which sought 'to overcome any problemsposed by [Portuguese] exports (SO, point 11). In those circumstances, Cimporand SECIL could have linked documents 33.322/163 to 166, which were in the Box(see paragraph 95 above), and documents 33.322/1406 to 1408 and 1410 to 1412,which were in the Portuguese file (to which they had access during theadministrative procedure), to the Spanish-Portuguese agreement referred to in theinternational chapters of the SO (SO, Chapter 2, point 11, and Chapter 10, point61(c)) and could have foreseen the conclusions which the Commission intended todraw from those various documents in the context of the infringement referred toin Article 3(2) of the contested decision. There can therefore be no question ofinfringement of the rights of the defence. 337. Documents 33.322/162, 181 and 252 and documents 33.322/170 and 172 were usedby the Commission to support its contention that the state of cement exports fromPortugal to Spain was examined in the meetings between representatives of thePortuguese and Spanish producers held between 6 March 1987 and 24 April 1989. As those meetings were expressly referred to in point 11 of the SO as amongst theSpanish-Portuguese meetings which aimed to 'overcome any problems posed by[Portuguese] exports (SO, point 11) and as the SO stated in the same point thatat 'each meeting, an analysis of monthly exports of Portuguese cement to Spain[had been] carried out for each entry point, Cimpor and SECIL could reasonablyhave foreseen the conclusions which the Commission was going to draw from thosedocuments (all of which were in the Box (see paragraph 95 above)) in recital 21,paragraphs 5 and 7, of the contested decision. 338. Cimpor also submits that in the international part of the SO there was no referenceto documents 33.322/512, 513, 549, 550, 566, 567, 1397 and 1398, which were usedin recital 21, paragraphs 6 and 8, of the contested decision. 339. Documents 33.322/512, 513, 549, 550, 566 and 567 are telexes from 1988 and 1989either to or from Cimpor, which, according to the contested decision, 'show thatCimpor ... refused all requests for cement from Spain [in 1988 and 1989] with thestandard response we have no availabilities for export (contested decision,recital 21, paragraph 8). Those documents were identified by their numbering inthe Portuguese chapter of the SO (see SO, Chapter 9, point 56(c); 'Refusal tosell), which concerned the refusals, using that standard response, of requests forcement received from Spain. The chapter of the SO relating to Portugal was sentto Cimpor during the administrative procedure and the documents in question wereall in the Portuguese file to which it had access during that procedure. Since theCommission stated in point 11 of the international part of the SO (Chapter 2)relating to the Spanish-Portuguese agreement that 'a whole series of telexes sentin 1988 and 1989 [showed] that Cimpor, the producer having the most directinterest in exports, [had] refused all Spanish requests for cement with the standardresponse we have no availabilities for export, Cimpor could reasonably havelinked those documents to point 11 of the SO and have foreseen the conclusionswhich the Commission intended to draw from them in the context of theinfringement referred to in Article 3(2) of the contested decision. 340. Documents 33.322/1397 and 1398 are telexes indicating the names of the personswho were to attend the Spanish-Portuguese meeting of 27 July 1988. That meetingwas clearly mentioned in point 11 of the international part of the SO (Chapter 2)as one of the Spanish-Portuguese meetings which aimed to 'overcome anyproblems posed by [Portuguese] exports. The meeting in question was alsoreferred to in point 56(b) of Chapter 9 of the SO relating to Portugal in the contextof the problems associated with movements of cement between Portugal and Spain. Moreover, the two documents in question were part of the national file to whichCimpor was given access during the administrative procedure. In thosecircumstances Cimpor could have foreseen that the Commission was going to relyon them in order to find in the contested decision (recital 21, paragraph 6) that ameeting had taken place on 27 July 1988 between representatives of the Spanishand Portuguese producers. The two documents are therefore also admissibleagainst Cimpor. 341. Oficemen refers to documents 33.322/92, 93, 95, 96, 177, 270 to 276, 492, 493 to495, 527 to 529, 530 to 532, 537, 538 and 575. Cimpor and SECIL object to theuse of documents 33.322/79, 84, 85, 88 to 90, 92, 93, 95, 177 and 270 to 276 asevidence in the contested decision. Cimpor also objects to the use of documents33.322/158, 159, 160, 161, 485, 486, 490 to 492, 493 to 495, 496 to 511, 514, 515,516, 517, 523, 524, 525, 526, 527 to 529, 530 to 532, 533 to 536, 537, 538, 539 to 541, 543 to 545, 546 to 548, 551 to 553, 554 to 556, 571 to 574 and 575 in thecontested decision. 342. The Court points out, however, that document 33.322/575, a telex from Tracoisato Cimpor of 13 March 1989, mentioned in recital 21, paragraph 8, of the contesteddecision, was expressly referred to in point 11 of the international part of the SO(Chapter 2). The same is true of documents 33.322/490 to 492, 496 to 511, 514,515, 516, 517, 523, 524, 525, 526, 533 to 536, 539 to 541, 543 to 545, 546 to 548, 551to 553, 554 to 556 and 571 to 574. Those documents are telexes which, accordingto point 11 of the SO and recital 21, paragraph 8, of the contested decision, showthat Cimpor agreed to specific requests for cement during 1988 and 1989 for thefollowing destinations: Africa, Guinea, Senegal, Libya, Madagascar, Puerto Rico,United States of America and Antilles. Those telexes, and the telex of 13 March1989, were also in the Box (see paragraph 95 above). They are thereforeadmissible against Oficemen (documents 33.322/492 and 575) and against Cimpor(documents 33.322/490 to 492, 496 to 511, 514, 515, 516, 517, 523, 524, 525, 526,533 to 536, 539 to 541, 543 to 545, 546 to 548, 551 to 553, 554 to 556, 571 to 574and 575). 343. Documents 33.322/485, 486, 493 to 495, 527 to 529, 530 to 532, 537 and 538 aretelexes from 1988 and 1989 sent by or to Cimpor. They are referred to in recital21, paragraph 8, of the contested decision in order to show that Cimpor refusedany request for Spanish cement in 1988 and 1989. Those documents were also inthe Box (see paragraph 95 above). Since the Commission stated in point 11 of theSO (Chapter 2) that 'a whole series of telexes sent in 1988 and 1989 [showed] thatCimpor, the producer having the most direct interest in exports, [had] refused allSpanish requests for cement with the standard response we have no availabilitiesfor export, Oficemen and Cimpor could reasonably have linked those documentsto the relevant passages of the SO and have foreseen the conclusions which theCommission intended to draw from them. Documents 33.322/92, 93, 95 and 96 anddocuments 33.322/158 and 159, 160, 161 and 270 to 276, referred to in recital 21,paragraph 6, of the contested decision, confirm that meetings were held betweenthe Portuguese cement producers and representatives of the Spanish producers on28 October 1988, 12 January, 23 February and 24 April 1989 and on 10 November1987, 5 February, 21 April, 10 May and 27 July 1988. Point 11 of the SO (Chapter2) mentioned that on those dates meetings had taken place between Spanish andPortuguese producers 'so as to overcome any problems posed by exports ofcement from Portugal to Spain. Documents 33.322/92, 93, 95, 96, 158, 159, 160,161 and 270 to 276 were all in the Box. Oficemen, Cimpor and SECIL couldreasonably have foreseen from point 11 of the international part of the SO whichconclusions the Commission would draw in the contested decision from documents33.322/92, 93, 95, 96 and 270 to 276. From reading point 11 of the internationalpart of the SO, Cimpor could also foresee that documents 33.322/158, 159, 160 and161 were going to be used against it in the context of the infringement referred toin Article 3(2) of the contested decision. 344. As regards documents 33.322/79, 84, 85 and 88 to 90, referred to in recital 21,paragraph 6, of the contested decision, they confirm that meetings were heldbetween the Portuguese cement producers and representatives of the Spanishproducers on 25 June 1987 (document 33.322/79), 10 November 1987 (document33.322/84), 5 February 1988 (document 33.322/85), 21 April 1988 (document33.322/88), 10 May 1988 (document 33.322/89) and 27 July 1988 (document33.322/90). Point 11 (Chapter 2) of the SO stated that on those dates meetingsbetween Spanish and Portuguese producers had been held 'so as to overcome anyproblems posed by exports of Portuguese cement to Spain. In thosecircumstances, Cimpor and SECIL could reasonably have foreseen the conclusionswhich the Commission was going to draw from those documents in the contesteddecision, all of those documents being in the Box (see paragraph 95 above). Finally, point 11 (Chapter 2) of the SO stated that 'at each meeting, an analysisof monthly exports of Portuguese cement to Spain [had been] carried out for eachentry point. As document 33.322/177, also contained in the Box, confirmed thatfact, Oficemen, Cimpor and SECIL should also have foreseen the conclusionswhich the Commission was going to draw from it in recital 21, paragraph 7, of thecontested decision, which paraphrases the abovementioned extract from the SO. 345. Next, as regards the evidence used to support the allegation of an infringement inArticle 3(3)(a) of the contested decision, namely the Franco-German agreementsand concerted practices, SFIC, Ciments Français and Heidelberger object to theuse in the contested decision of a Heidelberger memorandum of 12 August 1987(contested decision, recital 22, paragraph 10; document 33.126/3573) as allegedlynew evidence. Although it is clear that this memorandum is not referred to in theSO, the Court points out that it was nevertheless in the Box (see paragraph 95above). As it is therefore a document that is comparable to an appendix to theSO, it suffices to examine whether the applicants concerned could reasonably havededuced from the SO the conclusions which the Commission was going to drawfrom that memorandum. The applicants ought to have done so, since the SOcontained a point 12 entitled 'Implementation of the Cembureau agreement orPrinciple of not transhipping to internal European markets: France-Germany, inwhich the Commission referred expressly to the letter from Ciments Français of 22September 1986 (contested decision, recital 22, paragraph 10; documents33.126/3574 to 3576) which was attached to the Heidelberger memorandum of 12August 1987 (see paragraph 2396 below). 346. As regards the evidence used to substantiate the various infringements alleged inArticle 4 of the contested decision, namely the setting-up of the ETF and themeasures adopted in the context of the ETF, Holderbank and Blue Circle cite, firstof all, the handwritten record by Mr Dutron, director of Cembureau, following themeeting of 28 May 1986 in Rome (contested decision, recital 25, paragraph 1;documents 33.126/10982 and 10983). Blue Circle also refers to the typewrittenrecord of that meeting (contested decision, recital 25, paragraph 1; document33.126/18771). It refers, moreover, to the list of participants in the Zurich-Céligny meeting from 3 to 5 June 1986 (contested decision, recital 25, paragraph 2;document 33.126/18756). Those meetings and their subject-matter were clearly setout in point 17(a) and (b) of 'The Facts in the SO dealing with the ETF (Chapter2, Section 2), and the documents in question were in the Box (see paragraph 95above). Holderbank and Blue Circle could therefore reasonably have linked thosedocuments to the relevant passages in the SO and have deduced from them theconclusions that the Commission was going to draw as regards the variousinfringements referred to in Article 4 of the contested decision. 347. Holderbank also refers to the minutes of the meeting of the Head Delegates andof the ETF on 9 September 1986 in Baden-Baden (contested decision, recital 25,paragraph 22; documents 33.126/18849 to 18862), to the handwritten record ofLafarge relating to the ETF meeting of 11 February 1987 in Geneva (contesteddecision, recital 25, paragraph 46; documents 33.126/4911 to 4913) and to Lafarge'srecord of the meeting on 17 March 1987 of the subgroup of the ETF on 'stickactions (contested decision, recital 25, paragraph 47; documents 33.126/4858 to4861). Those various meetings were all referred to in the SO (at point 17(e) and(g) of the section of 'The Facts in the SO dealing with the ETF (Chapter 2,Section 2)) with a brief description of the agenda of those meetings. Furthermore,the various documents cited by that applicant in regard to those three meetingswere in the Box (see paragraph 95 above). Holderbank could therefore havereasonably linked those documents to the relevant passages of the SO and deducedfrom them the conclusions the Commission was going to draw from them asregards the various infringements referred to in Article 4 of the contested decision. For the same reasons, Lafarge's handwritten record of the ETF meeting of 11February 1987 in Geneva (contested decision, recital 25, paragraph 46; documents33.126/4911 to 4913) is admissible evidence against Aalborg. 348. Blue Circle also complains that in the contested decision the Commission relied ondocuments 33.126/18821 and 18822 (contested decision, recital 25, paragraphs 9 and10, and recital 26, paragraph 2), 33.126/18857 to 18861 (contested decision, recital26, paragraph 2) and 33.126/18755 (contested decision, recital 25, paragraphs 9 and10) in order to prove that Blue Circle participated in the Stockholm meeting on 9June 1986 and to prove the subject-matter of that meeting. It also complains ofthe use in the contested decision of the record of the Head Delegates meeting inBaden-Baden on 9 September 1986. It refers in particular to document33.126/18861, from which it may be inferred that it was present at the Stockholmmeeting (contested decision, recital 25, paragraph 9). The meetings at Stockholmand Baden-Baden and the subject-matter of those meetings were clearly alluded toin point 17(c) and (e) of the section of 'The Facts in the SO dealing with the ETF(Chapter 2, Section 2), and the documents in question were in the Box (seeparagraph 95 above). Blue Circle could therefore reasonably have linked thosedocuments to the relevant passages of the SO and have deduced from them theconclusions the Commission was going to draw from them as regards the variousinfringements referred to in Article 4 of the contested decision. 349. Blue Circle also refers to various documents concerning other meetings mentionedin recital 25 of the contested decision. They concern the ETF meeting of 17 June1986 in London, mentioned in recital 25, paragraph 11, of the contested decision(documents 33.126/18781 to 18790); documents concerning the ETF meeting on 2July 1986 in Milan, mentioned in recital 25, paragraph 12, of the contested decision(documents 33.126/18756, 18757 and 18791 to 18794); documents concerning theETF meeting on 8 July 1986 in Geneva, mentioned in recital 25, paragraph 13, ofthe contested decision (documents 33.126/18757 and 18795); documents concerningthe ETF meeting on 19 August 1986 in Geneva, mentioned in recital 25, paragraph14, of the contested decision (documents 33.126/18757, 18758 and 18795 to 18811);a document concerning the ETF meeting in Baden-Baden on 9 September 1986,mentioned in recital 25, paragraph 21, of the contested decision (document33.126/18848); documents concerning the meeting of the Head Delegates inBrussels on 6 November 1986, mentioned in recital 25, paragraph 39, of thecontested decision (documents 33.126/19007 and 19008); documents concerning theETF meeting in Milan on 9 January 1987, mentioned in recital 25, paragraph 44,of the contested decision (documents 33.126/18759, 18921 and 18922); documentsconcerning the ETF meeting in Geneva on 11 February 1987, mentioned in recital25, paragraph 45, of the contested decision (documents 33.126/18760, 18939 to18944 and 18946 to 18949); and documents concerning the meeting of the ETF'ssubgroup on 'stick actions on 17 March 1987, mentioned in recital 25, paragraph47, of the contested decision (documents 33.126/4858 to 4861). Those variousmeetings were all referred to in point 17(d), (f) and (g) of the section of 'TheFacts in the SO dealing with the ETF (Chapter 2, Section 2) with a briefdescription of the agenda of those meetings. Furthermore, the various documentscited by that applicant in regard to those meetings were all in the Box (seeparagraph 95 above). Blue Circle could therefore reasonably have linked thosedocuments to the relevant passages of the SO and have deduced the conclusionswhich the Commission was going to draw from them as regards the variousinfringements referred to in Article 4 of the contested decision. 350. Blue Circle refers in addition to documents 33.126/4487 to 4490 (contested decision,recital 25, paragraph 48), the internal note of 1 June 1987 drawn up by Lafargefollowing the meetings in Luxembourg from 25 to 28 May 1987, in which it isstated, inter alia, regarding the future of the ETF: '... as the tool had been forgedit might as well be kept ready for use. Those documents were in the Box madeavailable to Blue Circle during the administrative procedure (see paragraph 95above). Blue Circle could reasonably have foreseen the conclusions theCommission was going to draw from them, because in point 61(h) of the SO,relating to the 'Legal Assessment of the ETF (Chapter 10), the Commissionstated that 'the infringements committed by the undertakings in question [in theETF] from 1986 [were] all the more serious as they [had been] of long duration,but it did not establish, as it had done for the other objections, any date for the endof the infringement, and in point 93(b) of the SO, concerning the applicability ofArticle 15(2) of Regulation No 17, it '[considered] that almost all of the agreements, decisions and concerted practices [were] continuing. The documentsin question must therefore be considered to be admissible evidence against BlueCircle. 351. Italcementi refers to the following documents concerning the meetings mentionedin recital 25 of the contested decision: the draft agenda for the ETF meeting inMilan on 2 July 1986 (contested decision, recital 25, paragraph 12; document33.126/18794); the agenda of the ETF meeting in Geneva on 19 August 1986(contested decision, recital 25, paragraph 14; document 33.126/18811); and thenotes of the meeting of the Head Delegates in Brussels on 6 November 1986(contested decision, recital 25, paragraph 39; documents 33.126/19007 and 19008). Since all the abovementioned documents were in the Box (see paragraph 95 above)and the Commission referred in point 17(d) and (f) of the section of 'The Factsin the SO dealing with the ETF (Chapter 2, Section 2) to the holding of themeetings in question and to the agenda of those meetings, Italcementi couldreasonably have deduced from the SO the conclusions the Commission intendedto draw from the documents in question in regard to the infringements referred toin Article 4(1) to (3) of the contested decision. 352. The SFIC submits that there was no reference in the international part of the SOto the agendas and minutes of three of its meetings, held on 8 July, 9 Septemberand 7 October 1986 (documents 33.126/14828 to 14860; minutes cited in recital 29,paragraph 4, of the contested decision), which were used against it so as to hold itresponsible for the infringements referred to in Article 4(1) to (3)(a) of thecontested decision. However, the Court finds that the documents in question,which emanate from SFIC and were in the file relating to France to which it wasgiven access during the administrative procedure, were alluded to in broad termsin the chapter of the SO dealing with France, in the passage relating to exports ofcement from Greece (Chapter 5, point 44(f)), which concludes, in regard to thosedocuments, that 'in any case the dates of the meetings of the office (of the SFIC)with exports of Greek cement on their agenda must be compared with the datesof the activities of the Cembureau Task Force or European Task Force referredto in Section 2 above. It is clear from that passage that those documents,although referred to in the chapter of the SO relating to France, were clearlylinked by the Commission not only to the objections concerning the Frenchproducers but also to the international objections relating to the ETF. On readingthose statements, SFIC should therefore have realised that those documents,despite their position in the SO, were liable to be used by the Commission in thecontested decision also in support of the objections against the applicant in thecontext of the ETF, and that it was appropriate for it to comment on documents33.126/14828 to 14860 both by reference to the national objections and by referenceto the international objections raised against it in the SO. They are thereforeadmissible evidence against it. Since the link between those national documentsand the objections relating to the ETF had been clearly established in the SO andsince SFIC had been able to comment on those documents during the administrative procedure, the Commission was legally entitled to refer to them inthe contested decision, notwithstanding the fact that the national objections hadbeen dropped. 353. As regards, in particular, the evidence on which the Commission relied in findingthe infringement referred to in Article 4(2) of the contested decision, the setting-upof Interciment, Blue Circle submits that the Commission did not adequately referin the SO to documents 33.126/18734 to 18739 and 18823 to 18832. Thosedocuments were mentioned in the contested decision to substantiate the findingthat Interciment, a company with a share capital of SFR 50 000, had been set upon 24 June 1986 by three Swiss lawyers and had been registered in Fribourg at theoffices of the lawyer who had subscribed almost all of the shares and who was itssole administrator (contested decision, recital 26, paragraphs 3 and 5). Blue Circlealso refers to document 33.126/18329 (contested decision, recital 26, paragraph 9) extract from Holderbank's reply to a request for information  from which theCommission infers that Blue Circle had paid the relevant amount of its quota ofshares in Interciment. However, there was a clear reference to those facts in point18 of the section of 'The Facts in the SO dealing with the ETF (Chapter 2,Section 2). Blue Circle could therefore have reasonably linked documents33.126/18734 to 18739, 18823 to 18832 and 18329, all of which were in the Box (seeparagraph 95 above), to the relevant passages of the SO and deduced theconclusions which the Commission intended to draw from them as regards theinfringement referred to in Article 4(2) of the contested decision. 354. Blue Circle also complains of the fact that no mention was made by theCommission in the SO of the memorandum from Blue Circle's in-house lawyer of10 July 1986 (contested decision, recital 26, paragraph 13; documents 33.126/18842and 18843). However, on reading point 18 of the section of 'The Facts in the SOdealing with the ETF (Chapter 2, Section 2), it could have seen that thismemorandum, which was in the Box (see paragraph 95 above) and which statesthat the setting-up of Interciment infringes Article 85(1) of the Treaty, was goingto be used as incriminating evidence in the contested decision. 355. Documents 33.126/10960 to 10962 (statement of accounts of BCO, Blue Circle'sSwiss subsidiary, of 7 November 1986), 10958 (telex from Blue Circle to Cementiaof 10 October 1987), 6647 (handwritten Lafarge note of 3 October 1986) and 2915(undated legal opinion of French origin) (contested decision, recital 26, paragraphs7, 11, 12 and 13), to which Holderbank refers and which were also used by theCommission in the context of the infringement referred to in Article 4(2) of thecontested decision, were expressly mentioned in the SO (SO, point 18 and footnote14) and were in the Box (see paragraph 95 above). The mere fact that they werenot identified in the SO by reference to their pagination cannot constitute aninfringement of the applicant's rights of defence. Holderbank also refers todocuments 33.126/16218 and 16220 (contested decision, recital 26, paragraph 8)which relate to the subscription by Italcementi of its share quota in the capital of Interciment and the subsequent resale of its shares to Holderbank. Those factswere clearly set out in point 18 of the SO and the documents in question were inthe Box. Holderbank could therefore reasonably have linked those documents tothe relevant passages of the SO and deduced from them the conclusions theCommission intended to draw from them as regards the infringement referred toin Article 4(2) of the contested decision. 356. As regards the infringement referred to in Article 4(3)(b) of the contested decision,Italcementi objects to the fact that during the administrative procedure it was notgiven access to documents 33.126/12145 to 12342. Those documents, cited in recital27, paragraph 6, of the contested decision, are the agreements concluded in April1987 between Calcestruzzi and three Italian cement producers, Unicem, Cementirand Italcementi. Although those documents were indeed classified as inaccessibleto parties other than Unicem during the administrative procedure, with theexception of document 33.126/12160, most of them were accessible to Italcementiwhen it inspected the file relating to Italy during that same procedure, namelydocuments 33.126/12145 to 12166, 12180 to 12188 and 12231 to 12341. In anyevent, Italcementi, as a signatory to the agreements in question, was aware of theircontent. It also accepts that it had knowledge of those documents but considersthat it should have had access to them during the administrative procedure so thatit could check the copy in the Commission's file. It does not prove or even allegethat the Commission, when referring to those documents in recital 27, paragraph6, of the contested decision, misrepresented their original version. The Courtpoints out, next, that point 35 of the chapter in 'The Facts of the SO dealing withItaly, which was accessible to the applicant during the administrative procedure,indicated: 'The agreement [between the Italian producers and Calcestruzzi] wasfinalised on 3 and 15 April 1987, the dates on which a series of agreements weresigned. Point 70(b) of the chapter in the 'Legal Assessment of the SO relatingto Italy, also accessible to Italcementi during the administrative procedure, statedin regard to it: '... the agreements between the [Italian] producers and Calcestruzzi... constitute restrictions of competition within the meaning of Article 85[(1) of theTreaty]. Furthermore, in the SO, the agreements concluded in April 1987 werealso linked to the international objections relating to the ETF: point 19(d) of thesection of 'The Facts in the SO dealing with the ETF (Chapter 2, Section 2), towhich Italcementi had access during the administrative procedure, stated: '...Italcementi, Unicem, Cementir and Calcestruzzi signed an agreement ... underwhich the three cement producers undertook to meet all the Calcestruzzi's groups'cement requirements and the Calcestruzzi group undertook to obtain virtually allits cement supplies from them. Point 61(h)(iv) of the international part, 'LegalAssessment, in the SO states: 'The pressure brought to bear on Calcestruzzi andthe non-implementation by Calcestruzzi of the contract on the purchase of cementfrom Titan are the result of agreements and/or concerted practices between theItalian producers Italcementi, Unicem and Cementir, ... aimed at removing fromthe Greek producers an important customer through which they could penetratethe Italian market. Italcementi, which, as a signatory, had a copy of the agreements concluded in April 1987 could therefore reasonably have foreseen theconclusions which the Commission was going to draw from them as regards theinfringement referred to in Article 4(3)(b) of the contested decision. In thosecircumstances, documents 33.126/12145 to 12342 are admissible evidence againstItalcementi. 357. Italcementi also contends that document 33.126/19208, mentioned in recital 27,paragraph 10, of the contested decision, was not sufficiently identified in the SO. The Court points out (see paragraph 313 above) that that document, referred toin the contested decision in the description of the facts relating to the measures todefend the Italian market, does not in fact correspond, as the contested decisionindicates, to the telex of 2 June 1987 by which Calcestruzzi repeated its request toTitan for a meeting with the Italian producers in order to resolve the problemassociated with the non-performance of the contract for the purchase of Greekcement, but to a telex of 29 January 1987 from Titan to Calcestruzzi, to which noreference was made in the contested decision. The telex of 2 June 1987 fromCalcestruzzi to Titan, a large extract from which is reproduced in recital 27,paragraph 10, of the contested decision, is in fact document 33.126/19218, whichwas in the Box (see paragraph 95 above). In connection with the objection whichwas ultimately to be the subject-matter of Article 4(3)(b) of the contested decision,the SO (point 19(d)) refers to meetings at Calcestruzzi's request between theItalian producers and Titan. Upon reading that passage of the SO, Italcementicould therefore reasonably have foreseen the conclusions the Commission wasgoing to draw from the document in question in the context of the infringementreferred to in Article 4(3)(b) of the contested decision. 358. As regards, in particular, the carrot actions referred to in Article 4(4) of thecontested decision, Blue Circle complains that the Commission did not mention inthe SO the 'Memorandum of Understanding (document 33.126/11096) referredto in recital 28, paragraph 9, of the contested decision. It is a document, containedin the Box (see paragraph 95 above), which confirms the content of anotherdocument, namely the internal note of Blue Circle headed 'Discussion paper Cheap imports  Meeting 7.7.1986 (documents 33.126/10992 to 10994) which wasalso in the Box. That internal memorandum was expressly mentioned in point20(a) of the section of 'The Facts in the SO dealing with the ETF (Chapter 2,Section 2) and the extracts from that document were cited in the same point of theSO. In those circumstances, Blue Circle could reasonably have linked document33.126/11096 to the relevant passages of the SO and deduced the conclusions theCommission was going to draw from them as regards the infringement referred toin Article 4(4) of the contested decision. 359. Documents 33.126/19864 and 19865 (contested decision, recital 28, paragraph 9),to which Blue Circle refers, is an undated Heracles note on paper headed'Sheraton Park Tower  London which was used by the Commission in thecontext of the infringement referred to in Article 4(4)(a) of the contested decision. They were in the Box (see paragraph 95 above) and were expressly mentioned inpoint 20(a) of the section of 'The Facts in the SO dealing with the ETF (Chapter2, Section 2). They are therefore also admissible evidence against that applicant. 360. As regards the infringement referred to in Article 5 of the contested decision, theconcerted practices in the context of the ECEC, Cimpor and Italcementi refer tothe Blue Circle internal memorandum of 9 April 1981 referred to in recital 30,paragraph 1, of the contested decision in the context of the background to theestablishment of the export committees (documents 33.126/11338 to 11340; the dateof 4 April 1981 mentioned in the contested decision is erroneous). The note is ofno relevance to Cimpor's defence since Cimpor is not referred to in Article 5 of thecontested decision. In any event, the Blue Circle internal memorandum was in theBox (see paragraph 95 above). Furthermore, it is cited in point 24 of the SOrelating to the ECMEC. In those circumstances, it is admissible evidence againstthe applicants. 361. As regards the infringement referred to in Article 6 of the contested decision, theconcerted practice in the context of the EPC, Blue Circle considers that the letterfrom Mr Gac of 30 March 1990 (contested decision, recital 35, paragraph 2;documents nos 33.126/16766 to 16777) is a new item of evidence. That argumentmust be rejected. That document, which was moreover in the Box (see paragraph95 above), was expressly referred to in point 24 of the SO (Chapter 2, Section 4)relating to the background to the establishment of the ECMEC and the EPC. 362. Blue Circle also submits that the record of the EPC meeting of 20 October 1988(contested decision, recital 36, paragraph 8; documents 33.126/18179 and 18180),mentioned in order to prove that the intra-European problems were discussed inthe EPC, was not adequately referred to in the SO. The Court points out that inpoint 28 (Chapter 2, Section 4) of the SO, entitled 'Respect of home markets,express reference was made to the EPC meeting of 20 October 1988. In thosecircumstances, Blue Circle could have foreseen that the Commission would use therecord of that meeting, which was in the Box (see paragraph 95 above), to showthat the EPC dealt not merely with exports outside Europe but also with intra-European trade. 363. Ciments Français submits that its handwritten notes relating to the EPC meetingon 20 October 1988, cited in recital 36, paragraph 7, of the contested decision(documents 33.126/12791 to 12799), and the record of that meeting, referred to inrecital 36, paragraph 8, of the contested decision (documents 33.126/18179 and18180), which were used by the Commission in order to show that the intra-Community problems had been discussed in the context of the EPC, were not citedin the SO. The Court points out that the 'handwritten notes on the EPC meetingheld on 20 October 1988 are expressly cited in point 28 (Chapter 2, Section 4) ofthe SO, under the heading 'Respect of home markets. As regards the record ofthat meeting, although not expressly cited or mentioned in the SO, it was nevertheless in the Box (see paragraph 95 above) and Ciments Français could,upon reading the abovementioned passage of the SO which stated that the meetingof 20 October 1988 had been held, reasonably have foreseen the conclusions theCommission was going to draw from it in order to prove that the EPC did not dealmerely with exports outside Europe but also with intra-European trade. 364. The Court finds, however, that some applicants have identified in their applicationsdocuments which were used against them in the contested decision but which werenot available to them during the administrative procedure or from which they couldnot foresee the conclusions the Commission was going to draw. In accordance withsettled case-law, those incriminating documents must be excluded as evidence. Farfrom leading to the annulment of the entire decision, the exclusion of thosedocuments is significant only in so far as the corresponding objection raised by theCommission could be proved only by reference to them (Case 107/82 AEG vCommission [1983] ECR 3151, paragraphs 24 to 30; T-30/91 Solvay v Commission,cited in paragraph 106 above, paragraph 58, and T-37/91 ICI v Commission, citedin paragraph 142 above, paragraph 71). That question falls within the scope ofother pleas, concerning the correctness of the Commission's factual assessments. 365. As regards, first, the evidence used to substantiate the finding of the infringementreferred to in Article 1 of the contested decision, Unicem complains in particularthat it was not given access to the 'Members Directory of Cembureau. Thatdocument, which is not in the investigation file, was relied upon by the Commissionin recital 45, paragraph 13, of the contested decision in order to refute Unicem'sallegation that none of its representatives had ever been a Head Delegate. It is adocument on which the Commission relied in order to show that Unicemparticipated in the Cembureau agreement. As it was not mentioned in the SO andwas not in the Box (see paragraph 95 above), it cannot be considered to beadmissible evidence against Unicem. It will be necessary, when examining thesubstance of the claim that Article 1 is unlawful, to assess whether Unicem'sparticipation in the Cembureau agreement is adequately proved without that itemof evidence (see paragraphs 1429 to 1431 below). 366. Italcementi and Blue Circle refer to a series of documents relating to the HeadDelegates meetings mentioned in recital 19 of the contested decision. It is a keyparagraph of that decision as regards proof of the existence of the Cembureauagreement. The applicants in question are referring to documents 33.126/11560 to11577 and 11587 to 11633 relating to the Head Delegates meeting of 14 January1983 (contested decision, recital 19, paragraph 6), documents 33.126/11697, 11698,11701 to 11713 and 11732 relating to the Head Delegates meeting of 19 March1984 (contested decision, recital 19, paragraph 11) and documents 33.126/11739 to11747, 11750, 11756 to 11773 and 11774 to 11789 relating to the Head Delegatesmeeting of 7 November 1984 (contested decision, recital 19, paragraph 15). Asthose documents were not mentioned in the SO and, apart from a few pages, werenot in the Box (see paragraph 95 above), the Court, when examining the substance of the claim that Article 1 of the contested decision is unlawful, will have to assesswhether that infringement is adequately proved without those documents (seeparagraphs 1111 and 1112 below). 367. As regards the evidence used to substantiate the finding of the infringementreferred to in Article 2(2) of the contested decision, the periodic exchanges of priceinformation organised in Cembureau, VNC alleges that documents 33.126/15136 to15157 are not admissible evidence against it. The Court finds that those documentswere used in recital 16, paragraphs 8 and 18, of the contested decision in order toestablish the infringement linked to the above information exchanges. None ofthose documents were mentioned in the SO or were in the Box (see paragraph 95above). They cannot therefore be considered admissible evidence against VNC. The Court, when examining the substance of the claim that Article 2(2) of thecontested decision is unlawful, will assess whether the infringement which VNC isfound to have committed is adequately proved without those documents (seeparagraphs 1579 to 1593 below). 368. Aalborg submits that documents 33.126/15096 to 15305, cited in recital 16,paragraphs 8 to 22, of the contested decision, are new items of evidence. Thesedocuments are used by the Commission to prove the existence of the infringementreferred to in Article 2(2) of the contested decision and Aalborg's participationtherein. The Court finds that, apart from documents 33.126/15096 and 15097, noneof those documents were mentioned in the SO or were in the Box (see paragraph95 above). Those documents cannot be regarded as admissible evidence againstAalborg. The Court, when examining the substance of the claim that Article 2(2)of the contested decision is unlawful, will assess whether the infringement whichAalborg is found to have committed is adequately proved without those documents(see paragraphs 1579 to 1593 and 1684 to 1691 below). 369. As regards the evidence adduced by the Commission in support of its finding of theinfringement referred to in Article 3(2) of the contested decision, Oficemen,Cimpor and SECIL complain that during the administrative procedure they werenot given access to part of document 33.322/2901. That document, which is partof the record (documents 33.322/2898 to 2903) of a visit to SECIL on 28 and 29May 1986 by two employees of Hispacement, had been classified on the List (seeparagraph 5 above) as 'PA (partially accessible) to those three applicants. Theextract from document 33.322/2901 on which the Commission relies in thecontested decision (recital 21, paragraph 2) states as follows: 'Mr Bordado informsme that the Chairmen of the Portuguese cement companies met at the premisesof Oficemen with their Spanish counterparts in December last year, at which timeit was decided to agree on a reciprocal ban on exports between the two countries. He confirmed that SECIL is firmly committed to carrying out this arrangement. He said that Cimpor had recently received several requests to export toExtremadura in Spain. This is a temptation that Cimpor has resisted until now, in view of the harm which the cement companies in the two countries could suffer asa result of such a decision. 370. However, the version sent to the applicants during the administrative procedurecontained only the first sentence of the above extract. On the basis of the part ofdocument 33.322/2901 not disclosed to Oficemen, Cimpor and SECIL during theadministrative procedure, the Commission finds in recital 49, paragraph 2, of thecontested decision, in regard to the Spanish-Portuguese agreement: 'Theagreement was actually implemented. The representative of SECIL stated toHispacement ... that his firm was determined to abide by the agreement with theSpanish and that Cimpor had resisted any temptation to export even though it hadreceived orders from customers in Spain ... In the contested decision theCommission therefore used, as incriminating evidence against Oficemen, Cimporand SECIL, an extract from a document to which access had not been given at thetime of the SO. 371. The Commission contends, however, that there can be no question of infringementof the rights of the defence, because the whole of document 33.322/2901 was sentto the applicants on 3 May 1993. 372. However, the Court points out that on that date the hearings had already beenconcluded. As the applicants were not invited to submit their observations on thepassages of the document which had previously been blanked out, they were notin a position to effectively make known their views on the parts of document33.322/2901 on which the Commission relied in recital 49, paragraph 2 of thecontested decision. It follows that the last part of the extract set out in recital 21,paragraph 2 of the contested decision is not admissible evidence against them. TheCourt, when examining the substance of the claims that Article 3(2) of thecontested decision is unlawful, must therefore assess whether the infringementfound therein is adequately proved without the passages from document33.126/2901 to which access was not given during the written and oral phases of theadministrative procedure (see paragraphs 2041 to 2092 and 2136 below). 373. Oficemen considers that documents 33.322/512, 513, 549, 550, 566 and 567 cited inrecital 21, paragraph 8, of the contested decision are new items of evidence. Theyrelate to telexes in 1988 and 1989 showing that Cimpor refused requests for cementfrom Spain using the standard response 'We have no availabilities for export. Although those documents were identified by their numbering in the chapter of theSO relating to Portugal (see SO, Chapter 9, point 56(c) ('Refusal to sell)), it isnevertheless the case that this chapter of the SO was not sent to Oficemen duringthe administrative procedure. Furthermore, the documents in question were notmentioned in the international part of the SO, in particular in point 11, dealingwith the Spanish-Portuguese agreement, nor were they in the Box (see paragraph95 above). On the List (see paragraph 5 above), they were classified 'A: Cimpor. PA: third parties amongst the block of documents numbered from 33.322/497 to 33.322/577. In those circumstances, they cannot be admitted as evidence againstOficemen. The Court, when examining the substance of the claim that Article 3(2)of the contested decision is unlawful, must therefore assess whether theinfringement found therein is adequately proved without documents 33.322/512 and513, 549, 550, 566 and 567 (see paragraphs 2068 to 2092 and 2136 below). 374. Cimpor considers that document 33.322/1399 cannot be used as evidence againstit. That document, cited in recital 21, paragraph 6, of the contested decision, is atelex giving the names of persons who were to attend the Spanish-Portuguesemeeting of 27 July 1988. It was neither in the Box (see paragraph 95 above) norin the Portuguese file to which Cimpor was given access during the administrativeprocedure. It cannot therefore be used as evidence against Cimpor. The Court,when examining the substance of the claim that Article 3(2) of the contesteddecision is unlawful, must therefore assess whether the infringement found thereinis adequately proved without document 33.322/1399 (see paragraphs 2068 to 2092and 2129 below). 375. As regards the evidence adduced by the Commission to substantiate the finding ofthe infringement referred to in Article 3(3) of the contested decision, SFIC objectsto the use in that decision of BDZ's statistical model sent by it to the Commissionon 4 May 1993 (contested decision, recital 22, paragraph 18). The Court finds thatthe Commission refers to those statistics in the context of the infringement referredto in Article 3(3)(b) of the contested decision. As the applicant has not been ableto express its views on that evidence, it cannot be used against it. The Court, whenexamining the substance of the claim that Article 3(3)(b) of the contested decisionis unlawful, must, if necessary, assess the effect of the inadmissibility of thatevidence on the merits of the Commission's finding that the infringement wascommitted (see paragraph 2493 below).                                                                     376. As to the evidence adduced by the Commission to substantiate the finding of theinfringement referred to in Article 4(1) of the contested decision, namely thesetting-up of the ETF, Uniland, Oficemen, Italcementi and Blue Circle complainthat they did not have access to document 33.126/18950 (contested decision, recital25, paragraph 48) during the administrative procedure. That document is a faxsent on 23 February 1987 by Holderbank to various members of the ETF in orderto agree dates for meetings of the Head Delegates and of the ETF and was citedby the Commission in order to show that attempts to convene the ETF were stillbeing made at that time. It was not mentioned in the SO and was not in the Box(see paragraph 95 above). It was classified 'A: Holderbank, Ciments d'Obourg.NA: third parties on the List (see paragraph 5 above). That document is notadmissible against Uniland, Oficemen, Italcementi and Blue Circle. The Court,when examining the substance of the claim that Article 4(1) of the contesteddecision is unlawful, must assess whether the infringement found therein and itsduration are sufficiently proved without document 33.126/18950 (see paragraph2807 below). 377. Holderbank also refers to documents Nos 33.126/4487 to 4490 (contested decision,recital 25, paragraph 48), which correspond to the internal note of 1 June 1987drawn up by Lafarge following the meetings in Luxembourg on 25 to 28 May 1987,a note in which it is stated, in regard to the future of the ETF: '... as the tool hadbeen forged it might as well be kept ready for use. Although, according to theCommission, those documents were in the Box (see paragraphs 95 and 350 above),Holderbank has firmly denied that fact during the procedure before the Court. Inthe absence of proof of actual communication of those documents during theadministrative procedure they are not admissible against Holderbank. The Court,when examining the substance of the claim that Article 4(1) of the contesteddecision is unlawful, will assess whether the infringement found therein and itsduration are adequately proved without documents Nos 33.126/4487 to 4490 (seeparagraph 2808 below). 378. As regards the evidence used to substantiate the finding of the infringementreferred to in Article 6 of the contested decision, namely the concerted practice inthe context of the EPC, Blue Circle submits that the minutes of the meetings of theEPC of 12 November 1981 (documents Nos 33.126/11432 to 11440) and of 10November 1982 (documents Nos 33.126/11417 to 11420), mentioned in recital 37,paragraph 5, of the contested decision, were not adequately referred to in the SO. The Court finds that those documents, used by the Commission in order to showthat export prices were fixed collectively in the context of the EPC, are notmentioned in the SO and were not in the Box (see paragraph 95 above). They arenot therefore admissible against Blue Circle. The Court, when examining thesubstance of the claim that Article 6 of the contested decision is unlawful, mustassess whether the infringement found therein and Blue Circle's participation in itare adequately proved without documents Nos 33.126/11417 to 11420 and 11432to 11440 (see paragraphs 3987 and 3988 below). 6. Conclusions 379. The use in the contested decision of the documents identified in paragraphs 365 to378 above must be held illegal on the ground that it infringed the rights of defenceof the applicants concerned. The assessment of the consequences of thatinfringement will be carried out when the Court examines the substance of theclaim that the contested decision is unlawful. All the other arguments submittedin the context of the objection in question must be rejected. E  The failure to send to the applicants documents which were not in theinvestigation file 1. Preliminary observations 380. Several applicants complain that during the administrative procedure theCommission did not send to them certain documents which although not part of theactual investigation file would nevertheless have been useful in preparing theirdefence during the administrative procedure. Thus, they complain that they werenot given access to other addressees' replies to the SO (2); to the transcripts of thehearings relating to the national agreements and concerted practices (3); to theCommission's file on the notification of the Belgian-Dutch Basing point system (4);to the Commission's file on Greek State aid and the Helleno-British inter-governmental agreement (5); to some internal notes of the Commission (6); andto the written statements of defence in the other Cement cases (7). 381. Before examining the various arguments submitted, it is necessary to distinguish twosituations. 382. First, some applicants complain that the Commission did not allow them accessduring the administrative procedure to documents which were not in theinvestigation file and which were used as incriminating evidence in the contesteddecision. Since documents that have not been communicated to the partiesconcerned during the administrative procedure are not admissible evidence(judgments cited in paragraph 323 above, AKZO v Commission, paragraph 21, Shellv Commission, paragraphs 55 and 56, and T-13/89 ICI v Commission, paragraphs34 and 35), it will be necessary, if it should prove that the Commission relied in thecontested decision on documents that were not in the investigation file and werenot communicated to the applicants, to exclude those documents as evidence (AEGv Commission, cited in paragraph 364 above, paragraphs 24 to 30, T-30/91 Solvayv Commission, cited in paragraph 106 above, paragraph 58, and T-37/91 ICI vCommission, cited in paragraph 142 above, paragraph 71). 383. Second, some applicants consider that the Commission infringed their rights ofdefence by not communicating to them, during the administrative procedure,documents which, although not in the investigation file, might have containedexculpatory evidence. However, in a proceeding finding an infringement of Article85 and/or 86 of the Treaty the Commission is not required to make available, ofits own initiative, documents which are not in its investigation file and which it doesnot intend to use against the parties concerned in the final decision. Consequently,an applicant who learns during the administrative procedure that the Commissionhas documents which might be useful for its defence must make an express requestto the Commission for access to those documents. If the applicant does not do soduring the administrative procedure, his right to do so is barred in any action forannulment brought against the final decision. The reasoning in paragraph 96 ofCase T-30/91 Solvay v Commission, cited in paragraph 106 above, according towhich an infringement of the rights of the defence is unconnected with the mannerin which the undertaking concerned conducted itself during the administrativeprocedure, relates only to access to documents which are part of the Commission'sinvestigation file. If, during the administrative procedure, the Commission has rejected an applicant's request for access to documents which are not in theinvestigation file, an infringement of the rights of the defence may be found onlyif it is proved that the outcome of the administrative procedure might have beendifferent if the applicant had had access to the documents in question during thatprocedure (Hercules Chemicals v Commission, cited in paragraph 140 above,paragraph 56; T-30/91 Solvay v Commission, paragraph 68, and T-36/91 ICI vCommission, paragraph 78, both cited in paragraph 106 above). 2. Replies to the SO by other addressees 384. Aalborg (T-44/95), Rugby (T-53/95), Asland (T-55/95), Castle (T-56/95), IrishCement (T-60/95), Holderbank (T-68/95), Aker (T-70/95) and EUROC (T-71/95)consider that their rights of defence were infringed because they were not givenaccess during the administrative procedure to the replies to the SO of otheraddressees of that document. 385. They consider that their rights of defence have been infringed because theCommission uses extracts from various replies to the SO as incriminating evidence(2.1). Four applicants, Castle, Irish Cement, Aker and EUROC also allege thatother addressees' replies to the SO might have contained exculpatory evidence(2.2). 2.1 Use of replies to the SO as incriminating evidence 386. If the Commission wishes to rely on a passage in a reply to an SO or on adocument annexed to such a reply in order to prove the existence of aninfringement in a proceeding under Article 85(1) of the Treaty, the other partiesinvolved in that proceeding must be placed in a position in which they can expresstheir views on such evidence (judgments cited in paragraph 323 above, AKZO vCommission, paragraph 21, Shell v Commission, paragraphs 55 and 56, and T-13/89ICI v Commission, paragraphs 34 and 35). In such circumstances the passage inquestion from a reply to the SO or the document annexed thereto constitutesincriminating evidence against the various parties alleged to have participated inthe infringement. 387. The Court points out, first, that some applicants refer to documents which werementioned in the contested decision in order to describe a fact or behaviour, butwhich were not used subsequently in order to make a finding of an infringement. Accordingly, those documents cannot be regarded as incriminating evidence. 388. In the present case, Castle, Irish Cement, Aker and EUROC object to thereference in the contested decision to CBR's reply to the SO in the context ofrecital 17 (paragraph 4) headed 'The discussions on fair or healthy or correct competition. Those applicants, together with Aalborg, also refer to extracts fromCembureau's reply to the SO referred to in paragraphs 6 to 8 of recital 17 of thecontested decision. Castle, Aker and EUROC also criticise the reference in recital17, paragraph 4, of the contested decision to 'what most of the undertakings statein the replies to the statement of objections. However, as the discussions on 'fairor healthy or correct competition were not the subject-matter of any specificobjection in the operative part of the contested decision, the documents in questioncannot be regarded as incriminating evidence on which the above applicants shouldhave had the opportunity of expressing their views during the administrativeprocedure. 389. Irish Cement refers to other extracts from replies to the SO which merely asserta fact not used to support the finding of an infringement in the contested decision. Thus, the extract from Titan's reply to the SO, cited in recital 16, paragraph 14, ofthe contested decision, merely refers to the fact that cement prices in Greece weresubject to government authorisation up to May 1989. That extract cannot thereforebe regarded as incriminating evidence which the Commission should have notifiedto Irish Cement during the administrative procedure. The same is true of theextract from Blue Circle's reply to the SO, cited in recital 24, paragraph 3, to whichIrish Cement refers, which states that Mr Marshall was appointed from 1 June 1985as Head Delegate for the United Kingdom. On any view, as a direct member ofCembureau, Irish Cement should have known that Mr Marshall had become HeadDelegate for the United Kingdom with effect from that date. 390. Second, Aker, EUROC and Castle refer to extracts from other addressees' repliesto the SO cited in the contested decision which support the finding of aninfringement in that decision. However, inasmuch as those extracts do not relateto infringements attributed to the applicants, they are not documents used toincriminate them. The applicants cannot therefore allege that their rights ofdefence were infringed. The arguments submitted to that effect by Aker andEUROC, challenging the Commission's finding of the infringements referred to inArticles 2, 3, 4(4)(a) to (g), 5, 6 and 7 of the contested decision, and those ofCastle, challenging the finding of the infringements referred to in Articles 2, 3, 4(1)to (3) and 4(b) to (h), 6 and 7 of that decision, must therefore be rejected. 391. Third, the applicants refer to extracts from the replies to the SO which theCommission cites in the contested decision in order to summarise an argumentadduced by an addressee of the SO during the administrative procedure and thenreply to that argument in the contested decision. However, those extracts fromreplies to the SO cannot be considered incriminating evidence either. 392. Irish Cement cannot therefore rely to good effect on extracts from the reply ofCembureau to the SO, referred to in recital 16, paragraph 9, and recital 18,paragraphs 6 and 7, of the contested decision; that of FIC, referred to in recital 16,paragraph 10, fourth indent, and in recital 18, paragraph 7, of the contested decision; that of CBR, of SFIC and of Blue Circle, referred to in recital 18,paragraphs 7 and 8, of the contested decision; of Heracles and Ciments Français,referred to in recital 18, paragraph 8, of the contested decision; or those of theECMEC, referred to in recital 24, paragraph 3, of the contested decision. Similarly,Castle, Aker and EUROC cannot point to the references in the contested decisionto replies to the SO of Blue Circle (contested decision, recital 11, paragraph 6;recital 18, paragraphs 7 and 8; and recital 45, paragraph 3); of Cembureau (recital18, paragraphs 6 and 7; and recital 44, paragraphs 2 and 3); of CBR (recital 18,paragraphs 7 and 8); of FIC (recital 18, paragraph 7; and recital 44, paragraphs 2and 3); of SFIC (recital 18, paragraphs 7 and 8; recital 29, paragraph 4; and recital44, paragraphs 2 and 3), of Heracles; of Ciments Français (recital 18, paragraph8; recital 29, paragraph 4; and recital 53, paragraph 13); of ECMEC (recital 24,paragraph 3); of Oficemen (recital 29, paragraph 3); of ATIC (recital 44, paragraph2); of 'a number of associations and undertakings (recital 44, paragraph 4); of'some undertakings (recital 45, paragraph 8; and recital 53, paragraph 4); of BCA(recital 45, paragraph 12); of the 'Italian producers (recital 45, paragraphs 13 and14); of Unicem and Castle (recital 46, paragraph 2); or of the 'Germanundertakings (recital 53, paragraph 6). 393. Fourth, some applicants refer to extracts from replies to the SO which were usedby the Commission solely in order to prove the participation in infringementsreferred to in the contested decision by the addressees of the SO from whom thosereplies emanated. Thus, Aalborg refers to CBR's reply to the SO, mentioned inrecital 28, paragraph 21, of the contested decision. The extract from that reply wasused in the context of the infringement referred to in Article 4(4)(g) of thecontested decision. However, Aalborg was not held responsible for thatinfringement. The reply to the SO in question is not therefore incriminatingevidence used against it. Aalborg, Castle, Irish Cement, Holderbank, Aker andEUROC refer also to one or more extracts from the replies to the SO of CBR,Aker, EUROC, Blue Circle, Lafarge, Dyckerhoff, Heidelberger, BDZ and Asland,cited in recital 25, paragraph 9, of the contested decision. However, those extractscontain only an admission or denial by the undertaking or association ofundertakings concerned of participation in the Head Delegates meeting on 9 June1986 in Stockholm. Those extracts cannot therefore be considered incriminatingevidence against the abovementioned applicants which should have been notifiedto them during the administrative procedure. 394. Holderbank, Aker and EUROC refer also to a record of the ETF meeting on 19August 1986, submitted as Annex 15 to the reply to the statement of objections ofAker and EUROC, cited in recital 25, paragraph 14, of the contested decision. Byletter dated 9 July 1992, that record was sent by the Commission to all theundertakings and associations of undertakings to which the international section ofthe SO was addressed and they were invited to make known any comments whichthey might have on it (contested decision, recital 2, paragraph 3; see paragraph 5 above). Holderbank, Aker and EUROC cannot therefore contend that their rightsof defence were infringed by virtue of that document. 395. In its application Asland alleges that it did not receive the latter document and wastherefore unable to explain to the Commission, prior to the adoption of thecontested decision, that it had not taken part in the meeting on 19 August 1986and, accordingly, that at that time there was no link between it and the ETF. However, Asland withdrew its argument at the hearing because the Commissionproduced, as Annex 1 to its defence in Case T-55/95, an acknowledgement ofreceipt signed by Asland relating to the dispatch of the record of that meeting. 396. Lastly, Aker and EUROC refer to the extract from Blue Circle's reply to the SO,mentioned in recital 26, paragraph 9, of the contested decision, in which BlueCircle stated that it had reimbursed Holderbank its one-eighth share of theexpenses incurred in setting up Interciment. However, that item of evidence wasnot used to incriminate Aker and EUROC in the contested decision. 397. Irish Cement refers to an extract from Cembureau's reply to the SO, cited in recital45, paragraph 5, of the contested decision, according to which the Head Delegatesare ranked on a par with 'government representatives on international bodies andare appointed 'in order to cast votes in the general assembly. According to IrishCement, that extract was used by the Commission in Article 1 of the contesteddecision in reaching the conclusion that there was an agreement to respect homemarkets and to regulate sales. 398. It is, however, clear from recital 45, paragraph 5, of the contested decision that theCommission did not rely on that statement by Cembureau in finding that theCembureau agreement existed or in holding that the direct members ofCembureau, including Irish Cement, participated in that agreement. The statementwas used solely in order to show that the agreement also was binding on theindirect members of Cembureau. It is not therefore evidence used against IrishCement in the contested decision. 399. Fifth, Aalborg and Irish Cement refer to Cembureau's reply, mentioned in recital18, paragraph 4, of the contested decision, relating to a procedure under Article15(1) of Regulation No 17. In that reply Cembureau had stated that the BlueCircle memorandum of 1 December 1983 (contested decision, recital 18, paragraph2; documents 33.126/11332 to 11334), which refers to 'the Cembureau agreementor Cembureau Principle of not transhipping to internal European Markets,concerned 'good neighbour rules encouraged by Cembureau, that it was a 'typeof conduct which [was] desired by members but [did] not in itself contain anyconstraint or a fortiori any penalty or 'practices and ethics that have graduallyevolved through contact with businesses and economic development in variouscountries. It is apparent from recital 45, paragraphs 4 and 6, of the contesteddecision that those extracts from Cembureau's reply were used as evidence of the infringement referred to in Article 1 of the contested decision. However, the Courtfinds that Cembureau's reply (documents 33.126/13568 to 13573) was referred toand that extracts from it were even cited word for word in the SO (point 9). Furthermore, the document in question was in the Box (see paragraph 95 above). There cannot therefore be any question of infringement of the rights of thedefence. 400. Sixth and lastly, the applicants have pointed to some extracts from addressees'replies to the SO which were used against them in the contested decision asevidence of one of the infringements found. 401. Irish Cement refers in that regard to Annexes 2a and 2b to Cembureau's reply tothe SO (contested decision, recital 16, paragraphs 11 and 17), used as incriminatingevidence by the Commission to prove the infringement constituted by the periodicexchanges of price information between the members of Cembureau, aninfringement referred to in Article 2(2) of the contested decision. Thosedocuments, which correspond to the 'Cement Price Reference File (hereinafter'CPRF) for Luxembourg and Denmark respectively, were used in order to provethat the prices communicated by Ciments Luxembourgeois and Aalborg toCembureau were passed on to the members of Cembureau, including Irish Cement. Irish Cement also refers to extracts from replies to the SO of FIC, cited in recital16, paragraph 10, last subparagraph, of the contested decision; of Aalborg, cited inrecital 16, paragraph 11, first paragraph; and of BDZ, cited in recital 16, paragraph13. Those passages were also used by the Commission in finding the infringementreferred to in Article 2(2) of the contested decision. Aalborg complains that theCommission did not give it access to Annex 2a to Cembureau's reply referred toin recital 16, paragraph 17, of the contested decision, that is to say, to the CPRFfor Luxembourg. Aalborg also complains of the fact that during the administrativeprocedure it was not given access to the extracts from FIC's reply mentioned inrecital 16, paragraph 10, of the contested decision and to the extract from the replyof Irish Cement referred to in recital 16, paragraph 15. Those passages were alsoused by the Commission in order to establish the infringement referred to in Article2(2) of the contested decision, in which Aalborg is alleged to have participated. However, the Court finds that the above documents referred to by Aalborg and byIrish Cement were not mentioned in the SO or communicated to those applicantsduring the administrative procedure. In those circumstances, those documentscannot be regarded as admissible evidence against them (judgments in AEG vCommission, cited in paragraph 364, paragraphs 24 to 30, T-30/91 Solvay vCommission, cited in paragraph 106 above, paragraph 58, and T-37/91 ICI vCommission, cited in paragraph 142 above, paragraph 71). The Court, whenexamining the substance of the claim that Article 2(2) of the contested decision isunlawful, must therefore assess whether the infringement found therein and theparticipation of Aalborg and Irish Cement in it are sufficiently proved without thosedocuments (see paragraphs 1579 to 1593, 1684 to 1691 and 1711 to 1715 below). 402. Aker and EUROC refer to the extract from Blue Circle's reply to the SO set outin the following terms in recital 26, paragraph 10, of the contested decision: '... themembers [of the ETF] were entitled to examine Interciment's balance sheet, sincethe company was established pursuant to their instruction; in addition, Holderbankwas entitled to be reimbursed regardless of the subscription of the shares. Theyalso refer to the extract from Blue Circle's reply to the SO, mentioned in recital 26,paragraph 15, of the contested decision, according to which Blue Circleacknowledged 'that Interciment was still ready to operate, but that it could serveany objective. The Court finds that the Commission relied in particular on thoseitems of evidence in making its findings as to the existence and duration of theinfringement constituted by the setting-up of Interciment referred to in Article 4(2)of the contested decision. Consequently, the corresponding extracts from the replyto the SO, on which Aker and EUROC were unable to express their views duringthe administrative procedure, must also be excluded as evidence. The Court, whenexamining the substance of the claim that Article 4(2) of the contested decision isunlawful, must therefore assess whether the infringement found therein and itsduration are sufficiently proved without those documents (see, respectively,paragraphs 3008 to 3014 and 3018 and paragraphs 3087 to 3098 below). 403. Rugby and Castle complain that in the contested decision (recital 28, paragraph 12,last paragraph) the Commission referred to Blue Circle's reply to the SO asincriminating evidence. The Court finds that in that part of the contested decisionthe Commission, after having pointed to the evidence showing that Rugby andCastle had borne some of the costs which Blue Circle had incurred on the occasionof the defensive measures allegedly adopted by it against imports of Greek cement,states as follows: 'These pointers are indirectly confirmed by Blue Circle's reply tothe [SO]: it recognises that there was a practice of requesting contributions fromthe other undertakings; by acknowledging that this tactic was not always crownedwith success, it confirms that, on other occasions, contributions were paid. BlueCircle confines itself to affirming that there was no prior agreement with the otherproducers on the occasion in question. That extract from Blue Circle's reply wasused by the Commission to show that there was a concerted practice betweenRugby, Castle and Blue Circle, designed to prevent and/or reduce Greek cementimports into the United Kingdom. The corresponding infringement is referred toin Article 4(4)(a) of the contested decision. Since Rugby and Castle were not infact able to make known their views effectively on the extract in question duringthe administrative procedure, that extract must also be excluded as evidence. TheCourt, when examining the substance of the claim that Article 4(4)(a) of thecontested decision is unlawful, must therefore, if necessary, assess the effect of theinadmissibility of that evidence on the merits of the Commission's finding that theinfringement was committed. 2.2 Exculpatory evidence which might have been contained in the replies to theSO 404. Four applicants, Castle, Irish Cement, Aker and EUROC allege that otheraddressees' replies to the SO might have contained evidence exculpating them. They submit that the Commission's decision to terminate the proceeding concerningthe national agreements and concerted practices and to terminate the proceedingagainst 12 German undertakings and six Spanish undertakings was influenced bythe content of replies to the SO. Those replies might therefore also have containedinformation relevant to the applicants' defence. 405. The Court points out in that regard that in the SO and in the contested decisionthe Commission relied on specific documentary evidence in finding the variousinfringements and the applicants' participation in some of those infringements. Thefact that some undertakings, whose circumstances are not the subject ofproceedings before the Court (Woodpulp II, cited in paragraph 106 above,paragraph 197, and Dunlop Slazenger v Commission, cited in paragraph 270 above,paragraph 176), succeeded in their reply to the SO in showing that there was noadequate proof of their participation in the alleged infringements does not meanthat those replies contained evidence of such a nature as to cast a different lighton the specific documentary evidence on which the Commission relied in findingthat Castle, Irish Cement, Aker and EUROC participated in various infringementsreferred to in the contested decision. 406. Finally, Irish Cement submits that the Commission seriously misused its powers infailing to take into account its reply to the SO and in failing to refute the specificevidence produced in support of that reply. 407. However, the Court finds that Irish Cement has not adduced any particulars otherthan those in the various pleas and arguments by which it contests the substantivelegality of the contested decision in its own case. Examination of this argument istherefore indissociable from that relating to those pleas and arguments. 3. Records of the hearings relating to the national agreements and concertedpractices 408. In the statements which they lodged following the measure of 2 October 1996,SFIC (T-36/95), Castle (T-56/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL(T-62/95), l'ATIC (T-63/95), Aker (T-70/95) and EUROC (T-71/95) complain thatthe Commission did not give them access to the records of the hearings which tookplace in regard to the national agreements and concerted practices from 22 Marchto 1 April 1993. Holderbank (T-68/95), Aker and EUROC raised a similarobjection in their applications. 409. However, the applicants concerned have not identified any passage in the contesteddecision in which the Commission used an extract from the record of the hearingrelating to one or other national agreement or concerted practice as incriminating evidence against them. Furthermore, they have not shown that during theadministrative procedure they expressly requested a copy of the record of thehearings concerning the national agreements and concerted practices, nor do theyadduce any evidence to show that those documents might have containedexculpatory evidence. The relevance of the records at issue cannot be presumed,since the objections relating to the national agreements and concerted practices arenot the subject-matter of the contested decision. 410. The argument based on failure to grant access to those records must therefore berejected. 4. The Commission's file on the notification of the Belgian-Dutch Basing pointsystem 411. Dyckerhoff (T-35/95), Aalborg (T-44/95), Rugby (T-53/95), Castle (T-56/95), Aker(T-70/95) and EUROC (T-71/95) submit that in order to prepare their defenceduring the administrative procedure they should have had access to theCommission's file relating to the notification of the Belgian-Dutch Basing pointsystem. In their statements lodged following the measures of 2 October 1996 and18 and 19 June 1997 they requested the Court to order a measure of organisationof procedure or of inquiry requiring the Commission to give them access to thatfile. In a separate statement of 25 July 1996 Dyckerhoff made a similar request. 412. The Court points out that the Belgian-Dutch Basing point system is a system forsetting prices which had been notified to the Commission on 16 July 1981. Theapplicants allege that the documents in that file might have served to support theircontention that only lawful methods of regulating trade between Member Stateshad been on the agenda of the meeting of Head Delegates on 14 January 1983, inother words, that the file concerning the Belgian-Dutch Basing point systemconstitutes exculpatory evidence. 413. However, the Court finds that during the administrative procedure only Dyckerhoff,Rugby, Castle, Aker and EUROC made an express request that that file bedisclosed to them. Aalborg cannot therefore complain before the Court that it didnot have access to that file during the administrative procedure (see paragraph 383above). 414. The Court finds, next, that the applicants have not proved that if they had hadaccess to the file relating to the notification of the Belgian-Dutch Basing pointsystem they would have been able to raise arguments of such a nature as to affectthe outcome of the contested decision. In that decision the Commission expresslyrejected the argument that only lawful methods of regulating trade betweenMember States had been on the agenda of the meeting of the Head Delegates on14 January 1983 (contested decision, recital 17, paragraph 4). 415. The applicants' argument that the fact of their not having had access to theCommission's file on the notification of the Belgian-Dutch basing point systemimpaired their defence must therefore be rejected. As the applicants have notadduced any other evidence to show that this file would have been useful to theirdefence (Case T-145/89 Baustahlgewebe v Commission [1995] ECR II-987,paragraph 34), the Court also rejects their applications for an order for itsdisclosure in the proceedings before this Court. 5. The Commission's file on State aid granted by the Hellenic Republic andon the inter-governmental agreement between Greece and the United Kingdom 416. Dyckerhoff (T-35/95), Castle (T-56/95), Aker (T-70/95), EUROC (T-71/95) andBlue Circle (T-88/95) allege that their rights of defence were infringed by the factthat they were not given access during the administrative procedure to the file onState aid granted by the Hellenic Republic or to the file on the inter-governmentalagreement between Greece and the United Kingdom to limit imports into theUnited Kingdom of products from Greece. In its statement of 25 July 1996,Dyckerhoff requests the Court to order a measure of organisation or investigationthrough which the Commission would give access to its file relating to thediscussions concerning the State aid granted by the Hellenic Republic. In theirstatements lodged following the measures of 2 October 1996 and 18 and 19 June1997, Castle, Aker and EUROC make a similar request. Furthermore, in theirstatements lodged following the measures of 2 October 1996 and 18 and 19 June1997 Rugby, Castle, Aker and EUROC request the Court to order the Commissionto produce the file relating to the quota agreement apparently concluded by theUnited Kingdom Government and the Greek Government. By letter lodged at theRegistry of the Court on 26 August 1996, Blue Circle requested disclosure of thecorrespondence between the Commission and the Government of the UnitedKingdom and the Greek Government (in particular, correspondence between MrClark, then President of the Board of Trade at the Department of Trade andIndustry (hereinafter 'the DTI), and Mr Sutherland, then member of theCommission with responsibility for competition policy), of all correspondencebetween those two governments and of all the Commission's documents relating tothe 'Greek question (level of imports into the United Kingdom of Greek cementduring the period 1985-1986; State aid granted by the Hellenic Republic; restrictionof imports into the United Kingdom of products from Greece). 417. The Court finds, however, that the fact of not having had access to theabovementioned documents could not have impaired the applicants' defence duringthe administrative procedure. Those documents either relate to lobbying ofCommunity authorities, in which case the Court points out that the Commission hasnever disputed the existence of such lobbying or that it took into consideration onlymeasures which went beyond such awareness and/or pressure activities (contesteddecision, footnote 115); or they concern State aid granted by the Hellenic Republic, in which case the Court points out that the Commission expressly took thatcircumstance into account in the contested decision but considered that the Stateaid could in no way justify the private defensive measures adopted in contraventionof Article 85(1) of the Treaty (contested decision, recital 53, paragraph 8); or theyconcern the negotiations on and conclusion of an agreement between the UnitedKingdom Government and the Greek Government that aimed to restrict importsof Greek products into the United Kingdom, in which case the Court points outthat the Commission in fact took formal note of the fact that the restriction ofimports into the United Kingdom of products from Greece was not officially agreedbetween the Greek and the United Kingdom producers but between thegovernments of the two Member States concerned (contested decision, recital 28,paragraph 13), which did not prevent it from taking the view that the purchases bycertain Western European producers of Greek cement and clinker were measuresintended to curb Greek imports into the other Member States of the Communityand that they were the results of agreements between producers (contesteddecision, recital 28, paragraph 14). In those circumstances, the comments whichthe applicants might have made on the basis of the various exchanges of letterscould not but have confirmed matters fully taken into account by the Commissionand could not have led to a different outcome to the administrative procedure asregards the objections upheld against them in the contested decision. The requestsfor access to the documents identified in the preceding paragraph must be rejectedbecause those documents could not have been useful to the defence of theapplicants during the administrative procedure. 6. Internal notes of the Commission not included in the investigation file 418. Cimpor (T-61/95), SECIL (T-62/95) and Blue Circle (T-88/95) submit that variousinternal notes of the Commission would have been useful to their defence. 419. Cimpor requests the Court to order the Commission to disclose the reports,opinions, comments and notes made by officials in the Directorate General forIndustry (DG III) and of DG IV, by the Advisory Committee and by the hearingofficer, which, it claims, contain assessments of the SO, of the replies to the SO, ofthe hearings, of the criteria used for dropping objections and for applying fines, andof drafts of the contested decision. Cimpor and SECIL request the Court to orderthe Commission to disclose two internal notes of DG III sent to DG IV concerningthe 'Cement file, one dated the end of August 1994 and the other the beginningof November 1994. 420. The Court points out that the Commission is under no obligation to grant accessto its internal documents during the procedure (Hercules Chemicals v Commission,cited in paragraph 140 above, paragraph 54, and BPB Industries and British Gypsumv Commission, cited in paragraph 142 above, paragraph 29). Furthermore, inproceedings before the Community judicature the Commission's internal documents are not to be communicated to the applicants, unless the circumstances of the caseare exceptional and the applicants make out a plausible case for the need to do so(order of the Court of Justice in Joined Cases 142/84 and 156/84 BAT and Reynoldsv Commission [1986] ECR 1899, paragraph 11; judgment in Case T-35/92 Deere vCommission [1994] ECR II-957, paragraph 31, and order in NMH Stahlwerke andOthers v Commission, cited in paragraph 196 above, paragraph 35). That restrictionon access to internal documents is justified by the need to ensure the properfunctioning of the institution when it deals with infringements of the Treatycompetition rules (order in NMH Stahlwerke and Others v Commission, paragraph36). 421. However, Cimpor has not adduced any evidence to support its assertion that thereports, opinions, comments and notes drawn up by the officials in DG III and DGIV, by the Advisory Committee and by the hearing officer would be useful to itsdefence. 422. As regards the two internal memoranda of DG III sent to DG IV, Cimpor andSECIL seek to underpin their argument that it was economic reality and not theexistence of an alleged agreement and concerted practice which restricted tradebetween the Member States in general and between Spain and Portugal inparticular. 423. According to the contested decision, Cimpor and SECIL participated in twoinfringements, namely the Cembureau agreement (contested decision, Article 1)and the Spanish-Portuguese agreement (contested decision, Article 3(2)). TheCourt finds that both in the SO (points 9 and 61) and in the contested decision(recitals 18, 19, 45 and 46) the Commission relied not on the conduct of theundertakings concerned on the market but on specific documentary evidence toprove the existence of the Cembureau agreement and the participation of thosetwo undertakings in it. The same is true of the Spanish-Portuguese agreement (SO,points 11 and 61(c); contested decision, recitals 21 and 49). 424. It follows that any alternative explanations of the low level of trade between theMember States in general, and between Spain and Portugal in particular, which theapplicants might submit on the basis of the internal memoranda from DG III towhich they seek access, are not of such a nature as to shed a different light on thespecific documentary evidence on which the Commission relied in finding theinfringements referred to in Articles 1 and 3(2) of the contested decision. Thosememoranda could not therefore have been useful to the defence of Cimpor andSECIL during the administrative procedure. 425. Nor, in those circumstances, can the Court accept that there is an exception to thegeneral rule that the Commission's internal documents are not to be made availableto the applicants (order in BAT and Reynolds v Commission, cited in paragraph 420above, paragraph 11; Deere v Commission, cited in paragraph 420 above, paragraph 31; and order in NMH Stahlwerke and Others v Commission, cited in paragraph 196above, paragraph 35). 426. It follows that the Court must reject the argument of Cimpor and SECIL that thefact of their not having had access to the Commission's internal documents referredto in paragraph 419 above impaired their defence. The requests for the disclosureof those documents must therefore be rejected. 427. Blue Circle requests the Court to order the Commission to disclose all the internaldocuments and guidelines which it drew up in regard to access to the file followingthe judgments cited in paragraph 106 above (T-30/91 Solvay v Commission and T-36/91 ICI v Commission). It explains that those guidelines are relevant to itsdefence inasmuch as they may show that the Commission itself accepted that theapproach which it adopted in the administrative procedure, and which it continuesto defend before the Court, does not tally with the principles which it laid down foritself following those judgments. 428. The Court points out that the Commission cannot be obliged to disclose its internaldocuments. On any view, the internal documents and guidelines drawn up by theCommission in regard to access to the file are wholly irrelevant in the context ofthis plea. The judgments cited in paragraph 106 above (T-30/91 Solvay vCommission and T-36/91 ICI v Commission), which led the Commission to draw upthe internal documents and lay down the guidelines whose disclosure is requested,post-date the adoption of the contested decision. Consequently, the applicant'srights of defence were not infringed during the administrative procedure by failureto grant access to documents drawn up after the end of that procedure(Baustahlgewebe v Commission, cited in paragraph 415 above, paragraph 30). Norare those documents relevant to the proceedings before the Court: internaldocuments of the Commission cannot alter the substance of the rights of thedefence as defined in particular in the judgments cited in paragraph 106 above (T-30/91 Solvay v Commission and T-36/91 ICI v Commission). 429. It follows that the Court must reject Blue Circle's argument that the fact of its nothaving had access to the Commission's internal documents impaired its defence. The request for disclosure of the documents referred to must therefore be rejected. 7. The Commission's statements in defence 430. Aalborg (T-44/95) complains that the Commission did not grant its request foraccess to the Commission's statements in defence in cases other than Case T-44/95. 431. However, that applicant's request was for disclosure of documents drawn up by theCommission after the adoption of the contested decision. Consequently, thelegality of that decision cannot be affected by the Commission's refusal to grant the access requested (Baustahlgewebe v Commission, cited in paragraph 415 above,paragraph 30). 432. Furthermore, since the various cases were not joined during the written and oralprocedures, the Commission was not obliged to disclose to Aalborg the statementsin defence lodged in cases other than that between it and Aalborg. Moreover,during the present proceedings Aalborg has never requested that the variouspending cases be joined. On the contrary, by letter of 27 February 1996 it expresslyrequested the Court to treat those cases individually. Finally, by letter of 10December 1998 Aalborg stressed that only its own pleas in law and argumentsshould be taken into consideration by the Court. It cannot therefore complain thatthe Commission did not grant it access to the statements in defence in the othercases. 433. FIC (T-30/95) alleges that the Commission replies to some of its arguments in thecontext of Case T-26/95 Cembureau v Commission, but in that same case defendsarguments which contradict those which it defends in Case T-30/95. It considersthat the Commission's arguments in Case T-26/95 cannot be used against it andthat the Court cannot take them into account in order to decide on Case T-30/95. 434. However, even if they were well founded, those assertions do not prove that therewas an infringement of its rights of defence during the administrative procedure. They concern the conduct of the proceedings before the Court, which cannot assuch affect the legality of the contested decision (Baustahlgewebe v Commission,cited in paragraph 415 above, paragraph 30). In any event, even if the Commissioncontradicts itself in some of its statements in defence, it is only the contesteddecision which is authentic, not the Commission's interpretation of it in one orother of those statements. 8. Conclusions 435. The use in the contested decision of the extracts from the replies to the SOreferred to in paragraphs 401 to 403 above must be held unlawful because itinfringes the rights of defence of the applicants concerned. The consequences ofthat infringement of their rights of defence will be assessed when the Courtexamines the substance of the legality of the contested decision. All the otherarguments submitted in the context of the objection in question must be rejected. The second, third and fourth pleas: infringements of the rights of the defence, of theprinciple of equal treatment and of Article 190 of the Treaty as a result of theCommission's abandonment of the national objections and, as against someundertakings, of the international objections 436. It should be recalled that by decision of 23 September 1993 the Commissiondecided to drop the objections in the SO relating to the national agreements andconcerted practices against all addressees of the SO. On the same day it alsodecided to drop, as against 12 German undertakings and six Spanish undertakings,the objections in the SO relating to the international agreements and concertedpractices and to terminate the proceeding initiated against those undertakings (seeparagraph 14 above). 437. In their challenge to that approach, the applicants identified below rely on threepleas: infringement of the rights of the defence, the principle of equal treatmentand Article 190 of the Treaty. The Court will examine those pleas, drawing adistinction drawn between the dropping of the national objections (A) and thedropping of some of the international objections (B). A  The dropping of the national objections 438. FIC (T-30/95), ENCI (T-31/95), VNC (T-32/95), Ciments Français (T-39/95),Lafarge (T-43/95), BDZ (T-48/95), Rugby (T-53/95), Asland (T-55/95), Castle(T-56/95), Uniland (T-58/95), Oficemen (T-59/95), Italcementi (T-65/95), HornosIbéricos (T-69/95), Aker (T-70/95) and EUROC (T-71/95) submit that theCommission infringed their rights of defence during the administrative procedureby failing to grant them an opportunity to make known their views on the decisionof 23 September 1993 inasmuch as it dropped the national chapters of the SO. They refer in that regard to Article 19(1) of Regulation No 17 and to Articles 2and 4 of Regulation No 99/63 and to the judgment in CB and Europay vCommission, cited in paragraph 83 above. Since the factual and legal backgroundwas fundamentally altered by the decision of 23 September 1993, the applicantsargue that the Commission should have issued a new SO during the administrativeprocedure, which it failed to do. That defect affects the lawfulness of the contesteddecision. 439. The Court points out, however, that as a matter of principle the abovementionedundertakings and associations of undertakings cannot complain that their rights ofdefence were infringed by the Commission's dropping of some objections during theadministrative procedure: when an addressee of an SO replies to it, his specific aimis to cause the dropping of objections. Moreover, the case-law expressly recognisesthe Commission's power to drop objections (Joined Cases 100/80, 101/80, 102/80and 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825,paragraph 14). 440. The argument that the dropping of the national objections wholly changed the legaland factual context of the SO must be rejected. It has already been held that, aspresented in the SO, the international objections, namely the Cembureauagreement and the measures for implementing it at international level, are not at all dependent on the existence of the national agreements and concerted practices(see paragraphs 110 to 120 above). In those circumstances, the fact that theCommission did not issue a new SO after it dropped the national objections cannotconstitute an infringement of Article 19(1) of Regulation No 17 and of Articles 2and 4 of Regulation No 99/63. The observations which the applicants might havemade on the dropping of the national objections would not have been useful totheir defence, since the international objections, the only ones which are thesubject-matter of the contested decision, were not affected by the dropping of thenational objections. 441. Nor can the applicants draw support from CB and Europay v Commission, cited inparagraph 83 above. In that case, the Commission had amended the initialobjections and, during the administrative procedure, had issued a supplementarySO which had not been duly served on one of the applicants. The Court thereforefound that that applicant's rights of defence had been infringed. In the presentcase, the international objections were not amended as a result of the Commission'sdecision to drop the national objections. The Commission was not thereforeobliged to serve a new SO on the applicants before adopting the contesteddecision. 442. Unicem (T-50/95), Italcementi (T-65/95) and Cementir (T-87/95) submit that,despite the dropping of the national objections, an objection contained in thenational chapters of the SO relating to Italy, that is to say, the agreement on thecontracts and agreements concluded between Calcestruzzi and the Italian cementproducers, was 'revived by the Commission in Article 4(3)(b). 443. The Court finds that in the international part of the SO (Chapters 2 and 10) theCommission clearly set out the objection referred to in Article 4(3)(b) of thecontested decision. Thus, in point 61(h)(iv) of the SO (Chapter 10) it stated asfollows: 'The pressure brought to bear on Calcestruzzi and the non-implementationof the contract on the purchase of cement from Titan are the result of agreementsand/or concerted practices between the Italian producers Italcementi, Unicem andCementir .... Even though the chapters of the SO relating to Italy (Chapters 3and 13) set out the same objection, the Commission did not 'revive, in thecontested decision, a national objection that it had dropped: the infringementreferred to in Article 4(3)(b) of the contested decision is based on an objectionwhich was clearly set out in the international part of the SO. 444. Unicem submits that in the contested decision the Commission also upheld thenational objection concerning Italy, relating to the SIPAC agreements (SO, Chapter3, point 35(a); Chapter 13, point 70(b), first indent). 445. The Court points out that SIPAC is a joint subsidiary set up by Cementir,Italcementi, Unicem and Calcestruzzi. In the SO the Commission had taken theview that the setting-up of SIPAC infringed Article 85(1) of the Treaty (SO, Chapter 13, point 70(b), first indent). As the Commission acknowledges, thecontested decision does not uphold that objection. In that decision, theCommission does not express a view on the question whether or not SIPAC is inconformity with Article 85(1) of the Treaty. Unicem's argument must therefore berejected. 446. Italcementi alleges that, if it had been able to submit its comments on the droppingof the national objections, it would not have failed to point out that that decisionmust lead to the dropping of the objections relating to the agreement which,according to Article 4(3)(b) of the contested decision, it had concluded withUnicem and Cementir with a view to preventing imports of Greek cement byCalcestruzzi, because that agreement was referred to in the SO in the nationalchapter dealing with the Italian market (SO, Chapter 3, point 35). 447. However, although the agreement in question was referred to in the chapter of theSO relating to Italy, it was also referred to in the international part of the SO, inthe context of the objections relating to the ETF and the measures forimplementing it (SO, points 19(d) and 60(h)(iv)). Consequently, the commentswhich the applicant might have been able to make on the dropping of the nationalobjections would clearly not have led the Commission to drop the internationalobjection relating to the agreement between the Italian cement producers. 448. The SFIC (T-36/95), Oficemen (T-59/95), Cimpor (T-61/95) and SECIL (T-62/95)contend that after dropping the objections relating to the national agreements andconcerted practices, the Commission should also have removed from the file thedocuments relating to those agreements and concerted practices. However, thecontested decision contains some references to 'national documents. The SFICrefers in that regard to the minutes of the meetings of the SNFCC Bureau of 8July, 9 September and 7 October 1986 (contested decision, recital 29, paragraph4; documents 33.126/14828 to 14860) mentioned in Chapter 5 ('France) of theSO. Cimpor and SECIL refer to evidence cited in Chapter 9 ('Portugal) of theSO, namely documents 33.322/79, 84, 85, 88, 89, 90, 92, 93, 95, 96, 162, 163 to 166,170, 1314, 1406 to 1408, 1410 to 1412 and 2898 to 2903, all mentioned in recital 21of the contested decision. Cimpor refers to other documents which were alsoallegedly used by the Commission in the context of the Spanish-Portugueseagreement (contested decision, recital 21) and which were mentioned only in thenational chapter of the SO, namely Chapter 9 ('Portugal). Those documents aredocuments 33.322/59, 94, 155 to 157, 158, 159, 160, 161, 169, 171, 172, 177, 181,252, 270 to 276, 1311 and 1397 to 1399. Finally, Oficemen criticises the fact thatthe Hispacement document (documents 33.322/2898 to 2903) to which theCommission refers in recital 21, paragraphs 2 and 11, of the contested decision,although reproduced in part in the chapter of the SO relating to Spain (point 55),was not mentioned in the international part of the SO. 449. The Court has already found in the course of its examination of the first plea thatdocuments Nos 33.322/59, 94, 169 and 171, referred to by Cimpor, were not usedby the Commission in the contested decision (see paragraphs 286 and 287 above). The argument which Cimpor bases on those documents is therefore founded on anerror of fact. On the other hand, it has been held that document 33.322/1399,referred to in recital 21, paragraph 6, of the contested decision, is not admissibleas against Cimpor (see paragraph 374 above). The other documents to which theapplicants refer in the preceding paragraph were mentioned in the national chapterof the SO that was served on SFIC, Oficemen, Cimpor and SECIL during theadministrative procedure. Those documents, apart from the Hispacementdocument (documents 33.322/2898 to 2903), which was only partially accessible (seeparagraphs 369 to 372 above), were wholly accessible to them during thatprocedure. Furthermore, the applicants concerned could reasonably have expectedthat the Commission would use the documents in question in the contesteddecision; although mentioned in the chapters of the SO relating to the nationalobjections, those documents contain evidence as to the international objections (asregards documents 33.322/155 to 157, see paragraph 331 above; as regardsdocuments 33.322/2898 to 2903, see paragraphs 332 and 333 above; as regardsdocuments Nos 33.322/162, 163 to 166, 170, 172, 181, 252, 1311, 1314, 1406 to 1408and 1410 to 1412, see paragraphs 334 to 337 above; as regards documents33.322/1397 and 1398, see paragraph 340 above; as regards documents 33.322/79,84, 85, 88, 89, 90, 92, 93, 95, 96, 158, 159, 160, 161, 177 and 270 to 276, seeparagraphs 341 to 344 above; as regards documents 33.126/14828 to 14860, seeparagraph 352 above). In those circumstances, there can be no question ofinfringement of the rights of the defence. As regards, however, the parts of theHispacement document (documents 33.322/2898 to 2903), which were notaccessible during the administrative procedure, the Court has already held (seeparagraph 372 above) that when it examines the substantive pleas it will benecessary to assess whether the infringement found in Article 3(2) of the contesteddecision is adequately proved as against Oficemen, Cimpor and SECIL without thepassages from document 33.322/2901 to which access was not given during thewritten and oral stages of the administrative procedure (see paragraphs 2041 to2092 below). 450. Cimpor and SECIL, referring to the same documents mentioned in paragraph 448above, allege that the Commission itself, in referring in the contested decision toevidence contained in the chapter of the SO relating to Portugal in support of itsobjection relating to the Spanish-Portuguese agreement, accepts that the contentof the national chapters of the SO was relevant to an assessment of theinfringements referred to in the international chapters of the SO. Similarly, SFICcomplains of the alleged illogicality of the Commission's argument, which on theone hand submits that the documents in the file are not an indivisible orinextricable, which justifies its refusal to grant access to the documents relating tothe national agreements and concerted practices, but on the other hand refuses toremove from the file the documents relating to the part concerning France, even though the objections relating to the French agreements and concerted practiceshave been dropped. It refers in that regard again to the minutes of the meetingsof the SNFCC Bureau of 8 July, 9 September and 7 October 1986 (contesteddecision, recital 29, paragraph 4; documents Nos 33.126/14828 to 14860) used bythe Commission in the context of the infringements referred to in Article 4(1) to(3)(a) of the contested decision. 451. The Court finds, however, that, as the Commission had clearly established in theSO the link between the documents to which SFIC refers and the objectionsrelating to the ETF, together with the link between the documents to which Cimporand SECIL refer and the objections relating to the Spanish-Portuguese agreement,and that, as those documents had been submitted for the comments of SFIC,Cimpor and SECIL during the administrative procedure, the Commission waslegally entitled to refer to them in the contested decision, even though the nationalobjections had been dropped. One and the same document may relate to differentobjections; in the present case, they were the national and international objections. The fact that the national objections had been dropped did not prevent theCommission from using such a document in support of the international objectionsreferred to in the contested decision. 452. SFIC also observes that, although it actually dealt with the significance of thedocuments relating to the French agreements and concerted practices during theadministrative procedure, its comments were formulated exclusively from the pointof view of the national objections, not of the international objections. In thecontested decision the Commission took no account of the observations submittedby the applicant in reply to the national objections and, in particular, those relatingto the minutes of the meetings of the SNFCC Bureau on 8 July, 9 September and7 October 1986 (documents Nos 33.126/14828 to 14860). 453. The Court points out that in the SO the Commission had clearly demonstrated thelink between the documents to which SFIC refers and the objections relating to theETF (see paragraph 352 above). SFIC was at liberty to submit comments on thosedocuments, inasmuch as they were used by the Commission not only in the contextof the national objections, but also in the context of the various infringementsrelating to the ETF. The argument based on a failure by the Commission to takeinto account observations submitted by SFIC during the administrative procedureis unsupported by any evidence. It must therefore be rejected. In any event, theCourt finds that in recital 29, paragraph 4, of the contested decision theCommission discusses in detail the explanations put forward by SFIC to justify theabsence of any particulars in the minutes of the three abovementioned meetingsof the SNFCC concerning the issue of exports from Greece, even though thatsubject was on the agenda for those meetings. 454. Italcementi (T-65/95) considers that the Commission infringed the principle ofequal treatment in finding that it participated in the agreements concluded between Calcestruzzi, on the one hand, and Unicem, Cementir and itself, on the other, butnot finding that Calcestruzzi participated in that infringement. Similarly, Unicem(T-50/95) contends that the infringements objected to in Article 4(3)(a) and (b) ofthe contested decision should have been attributed to Calcestruzzi. It adds that theagreements referred to in Article 4(3)(b) of the contested decision should also havebeen attributed to the 11 other Italian producers called upon in the SO to reply tothat objection. It also submits that this infringement of the principle of equaltreatment also affected its rights of defence, since it was compelled to defend itselfon its own against an objection based on conduct which involved other parties whopossessed information essential to its defence. 455. Those arguments must be rejected. The fact that undertakings in a positioncomparable to that of the applicant were not found by the Commission to havecommitted any infringement cannot constitute a ground for setting aside the findingof an infringement by that applicant, provided it was properly established(Woodpulp II, cited in paragraph 106 above, paragraph 146). The Court willexamine below whether the infringements referred to in Article 4(3)(a) and (b) ofthe contested decision and the participation of Unicem and Italcementi in thoseinfringements were in fact established by the Commission (see paragraphs 3138 to3189, 3245 to 3253, 3264 to 3270 and 3343 to 3386 below). Furthermore, Unicemdoes not explain how the circumstances on which it relies in support of its plea ofinfringement of the principle of equal treatment could prevent it from gainingaccess to documents which might be useful to its defence and, accordingly, affectits rights of defence. 456. ENCI (T-31/95) and the VNC (T-32/95) also submit that the dropping of theproceedings in respect of the alleged national agreements and concerted practicesexamined in the SO caused them to suffer unequal treatment. The undertakingsconcerned by those alleged national agreements and concerted practices are in amore favourable situation than they are, since the proceeding concerning theanalysis of the Netherlands market and of the Benelux market was not referred toin the SO and is being continued to their detriment. 457. That argument must be rejected. The SO did not contain any national chapterrelating to the Netherlands. Furthermore, the applicants concerned have notshown that a proceeding concerning alleged agreements and concerted practices inthe Netherlands has in fact been initiated and is being pursued. The undertakingsand associations of undertakings referred to in a national chapter of the SO werenot therefore in the same situation as they were. In those circumstances, the factthat only the undertakings and associations of undertakings to which the SOreferred benefited from the dropping of the national objections cannot beconsidered to discriminate against ENCI and VNC (judgment in Schumacker, citedin paragraph 123 above, paragraph 30). The Belgium-Netherlands-Germanyagreements and concerted practices, in regard to which the Commission considersin recital 51 of the contested decision that it should not adopt a position, are an international objection. ENCI and the VNC cannot, by referring to the pursuit ofan investigation concerning an international objection, therefore allege that thedecision to drop the national objections infringed the principle of equal treatment. On any view, the Commission's decision not to adopt a position in the contesteddecision on the subject of the Belgium-Netherlands-Germany agreements andconcerted practices had the same effect on all the applicants concerned by thatobjection (see contested decision, recital 23), which in itself rules out infringementof the principle of equal treatment. 458. Lastly, FIC (T-30/95) submits that the Commission infringed Article 190 of theTreaty in failing to state in the contested decision reasons for dropping the nationalobjections and for its conclusion that the dropping of those objections had noimpact on the remainder of the objections upheld, even though it had initially takenthe view that all the objections formed an inseparable whole and proved theexistence of a single and continuous agreement. That infringement is claimed tobe all the more serious in that it concerns the statement of reasons for thecontested decision. FIC adds that the fact that the SO is of a preparatory naturecannot suffice to explain the dropping of the national objections and the retentionof the international objections. BCA (T-54/95), Asland (T-55/95) and Italcementi(T-65/95) object also to the fact that in the contested decision the Commission didnot give reasons for dropping the national objections. Italcementi asserts moreoverthat there is a contradiction between the principle of the single and continuousinfringement and the decision of 23 September 1993 not to continue theexamination of the national objections. 459. The Court finds that it was not necessary, in order to understand the Commission'sreasoning in regard to the international objections in the SO or in the contesteddecision, to examine the national objections set out in the SO. As presented in theSO and in the contested decision, the international objections, namely theCembureau agreement and the measures for implementing it at international level,did not depend on the existence of the national objections (see paragraphs 110 to120 above). Since the dropping of the national objections did not affect theinternational objections and was therefore extraneous to those objections  the onlyobjections to which the contested decision relates  the Commission was notrequired to give reasons in the contested decision for dropping them. As regardsthe contradiction alleged by Italcementi, the national objections were not, either inthe SO or in the contested decision, regarded as evidence of the single andcontinuous Cembureau agreement. The arguments of FIC, Asland and Italcementimust therefore be rejected. 460. It follows from the whole of the foregoing that the Court must reject the third plea,and the second and fourth pleas, inasmuch as they relate to the dropping of thenational objections. B  The abandonment of the international objections as against some undertakings 461. It should be recalled that by letter of 27 September 1993 the applicants wereinformed that the national objections had been dropped. They were not, however,informed of the Commission's decision to drop the international objections in theSO as against some German and Spanish undertakings. 462. Italcementi (T-65/95) complains specifically that the Commission did not notify itduring the administrative procedure of its decision to terminate the proceedinginitiated against 12 German undertakings and six Spanish undertakings. It statesthat it was thereby deprived of an opportunity to submit observations on thatdecision during the administrative procedure. It contends that those observationsmight have led to a different outcome to the administrative procedure, because itclaims that the decision of 23 September 1993 is not consistent with the collectiveresponsibility which the Commission attributes to the European cement producersas a whole. 463. BDZ (T-48/95) and Asland (T-55/95) allege that the Commission's decision of 23September 1993 to drop the objections against a number of Spanish and Germanundertakings also fundamentally altered the legal and factual background to thecomplaints made in the SO. Similarly, Aker (T-70/95) and EUROC (T-71/95)submit that when the Commission decided in September 1993 to terminate theproceeding against those undertakings, which were represented in Cembureau, butto maintain the international objections against the other undertakings addressedby the SO, it cannot but have reformulated the objections. In those circumstances,it should have given the latter addressees an opportunity to submit freshobservations in their defence. 464. The Court finds that, although the letter sent on 27 September 1993 by theCommission to the addressees of the SO did not refer to its decision of 23September 1993 to drop the objections as against 12 German undertakings and sixSpanish undertakings, the grounds now submitted by the applicants do not showthat the observations which they might have made at that time concerning thatdecision might have led to a different outcome to the administrative procedure,whether generally or specifically in regard to them. 465. The Court points out in that regard that the fact that the Commission dropped theinternational objections as against a number of undertakings cannot be interpretedas a change in its assessment of the very substance of the objections formulated inthe international part of the SO and upheld in the contested decision as against theapplicants concerned. In any event, the comments which BDZ, Asland, Italcementi,Aker and EUROC might have made on the Commission's decision of 23September 1993 to drop the international objections against a number ofaddressees of the SO could not have obscured the evidence on which the Commission relied in attributing to them the international objections alleged againstthem in the SO and subsequently in the contested decision. 466. As regards the argument of Italcementi, Aker and EUROC, based on allegedcollective responsibility, the Court finds that the undertakings in regard to whichthe proceeding was terminated are all indirect members of Cembureau, that is tosay, undertakings represented in Cembureau by their associations, BDZ orOficemen. The Commission never took the view, either in the SO or in thecontested decision, that all the undertakings represented by their association inCembureau participated in the infringements referred to in the international partof the SO. In terminating the proceeding as against some indirect members ofCembureau, the Commission did not therefore amend the objections. 467. In those circumstances, the arguments of BDZ, Asland, Italcementi, Aker andEUROC must be rejected. 468. Lastly, Cembureau (T-26/95) and Italcementi observe that in the contested decisionthe Commission did not state its reasons for dropping the international objectionsas against some undertakings. 469. In line with settled case-law, the statement of reasons required by Article 190 of theTreaty must disclose in a clear and unequivocal fashion the reasoning followed bythe Community authority which adopted the measure in question in such a way asto make the persons concerned aware of the reasons for the measure so that theymay defend their rights and the Community judicature may exercise its supervisoryjurisdiction (Case C-350/88 Delacre and Others v Commission [1990] ECR I-395,paragraph 15, and Joined Cases T-371/94 and T-394/94 British Airways and Othersand British Midland Airways v Commission [1998] ECR II-2405, paragraph 89). Therequirements to be satisfied by the statement of reasons depend on thecircumstances of each case, in particular the content of the measure in question,the nature of the reasons given and the interest which the addressees of themeasure, or other parties to whom it is of direct and individual concern, may havein obtaining explanations (Case C-367/95 P Commission v Sytraval and Brink'sFrance [1998] ECR I-1719, paragraph 63). 470. In order to understand the objections upheld against them in the contesteddecision, Cembureau and Italcementi did not need to know the reasons which hadled the Commission to drop the international objections as against some Germanand Spanish undertakings. Nor does the Court need to know those reasons inorder to review the legality of the contested decision. In any event, the applicantscannot allege that the Commission should have stated reasons in the contesteddecision for dropping the international objections as against some Spanish andGerman undertakings so that the Court can ascertain whether or not theCommission infringed the principle of equal treatment: the question whether theundertakings which are the subject of the decision of 23 September 1993 participated in the various infringements to which the contested decision relates isnot before the Court. Furthermore, the fact that a trader allegedly in a positioncomparable to that of an applicant was not found by the Commission to havecommitted any infringement cannot constitute a ground for setting aside the findingthat the applicant committed an infringement (Woodpulp II, cited in paragraph 106above, paragraph 146). Nor, in those circumstances, is it necessary to grantItalcementi's request that the Commission produce the decision of 23 September1993. 471. It follows from the whole of the foregoing that the second and fourth pleas,inasmuch as they relate to the abandonment of the international objections asagainst some undertakings, must also be rejected. The fifth plea: procedural irregularity by the Commission in dropping someinternational objections as against Irish Cement 472. Irish Cement (T-60/96) argues that there is a procedural irregularity because thecontested decision does not mention its participation in the infringement relatingto the setting-up of Interciment (contested decision, Article 4(2)), whereas at thehearings the Commission alleged that it did participate. It also notes that the salesof clinker which the Commission alleges, in point 15 of the SO, that it made toBlue Circle, are no longer described in the contested decision as measures toimplement the Cembureau agreement. 473. The Court points out, however, that the applicant cannot plead a proceduralirregularity by arguing that some accusations made against it by the Commissionduring the administrative procedure were ultimately dropped in the contesteddecision: the aim of an addressee of an SO is specifically to cause the Commissionto drop the objections made against him (see paragraph 439 above). 474. The fifth plea must therefore also be rejected.                                                                     The sixth plea: infringement of the rights of the defence resulting from the incompleteand imprecise nature of the SO A  Preliminary observations 475. A number of applicants submit first of all that there are gaps in the SO (B). Someof the applicants assert, moreover, that the SO did not set out sufficiently clearlythe extent to which they were alleged to have participated in the variousinfringements (C). Several applicants argue also that certain infringements oraspects of infringements referred to in the contested decision do not correspondto the objections in the SO. Since an assessment of whether there is discrepancy between the objections set out in the SO and the infringements found in thecontested decision requires an examination of all the constituent elements of theinfringements in question, the Court will carry out that examination when itconsiders the various substantive pleas and arguments. 476. The Court points out that the SO must be couched in terms that, albeit succinct,are sufficiently clear to enable the parties concerned properly to identify theconduct to which the Commission objects. It is only on that basis that the SO canfulfil its function under the Community regulations of giving undertakings andassociations of undertakings all the information necessary to enable them properlyto defend themselves, before the Commission adopts a final decision (see WoodpulpII, cited at paragraph 106 above, paragraph 42, and Mo och Domsjö v Commission,cited at paragraph 106 above, paragraph 63). The present plea must be consideredin the light of those principles. B  The allegedly incomplete nature of the SO 477. (1) FIC (T-30/95), VNC (T-32/95) and Oficemen (T-59/95) complain that theCommission did not state in the SO that it intended to impose fines on tradeassociations. (2) FIC, ENCI (T-31/95) and VNC criticise the method with which theSO deals with the CBS agreement concluded between the German, Belgian andNetherlands producers with regard to supply of the Dutch market. (3) Aker(T-70/95) and EUROC (T-71/95) submit that the SO did not set out all the mattersof fact and law on the basis of which the Commission claims to have territorialjurisdiction to apply Article 85(1) of the Treaty to the conduct of undertakingsestablished outside the Community. (4) Finally, Italcementi (T-65/95) and HornosIbéricos (T-69/95) submit that the SO did not analyse the market or preciselydefine the relevant markets. 1. The alleged failure by the Commission to state in the SO that it intendedto fine trade associations 478. The Commission imposed fines for participation in the Cembureau agreement notonly on the undertakings but also on the trade associations to which the contesteddecision was addressed (contested decision, Article 9). It considers it necessary tofine the trade associations also 'so as to dissuade them from taking the initiativein or facilitating such restrictive agreements and practices in future (contesteddecision, recital 65, paragraph 8, first indent). 479. FIC, VNC and Oficemen assert that they were not notified during theadministrative procedure of the Commission's intention to impose fines on them.Such infringement of their rights of defence should lead to the annulment ofArticle 9 of the contested decision in their case. 480. The Court points out that the Commission is not entitled to impose a fine on anundertaking or an association of undertakings without its having previouslyinformed the party concerned, during the administrative procedure, that it intendedto do so. The SO must make it possible for the undertaking or association ofundertakings concerned to defend itself not only against a finding of aninfringement but also against the imposition of a fine (Michelin v Commission, citedabove at paragraph 150, paragraph 20 and Opinion of Advocate General Fennellyin Joined Cases C-395/96 P and C-396/96 P CMB and Dafra-Lines v Commission,not yet published in the ECR, paragraph 178). In cases where, after service of theSO, the Commission decides to impose a fine that has not been mentioned in thatSO, it must serve on the undertaking or the association of undertakings concerneda supplement to the SO that observes the procedural rules applicable to any SO. 481. In the present case, the SO contains a single paragraph on the fines, point 93. Init, the Commission refers first of all to the provisions of Article 15(2) of RegulationNo 17, under which the Commission may impose fines on undertakings orassociations of undertakings (first paragraph of point 93 of the SO). The article inquestion is cited almost word for word. The wording of point 93 of the SO containsno other reference to associations of undertakings. The Commission states that 'theundertakings in question have, intentionally, or at the very least negligently,committed, as from the dates or during the periods indicated in the above outline,the infringements referred to in this Statement of Objections (second paragraphof point 93 of the SO). Further on, as regards the gravity and duration of theinfringements (third paragraph of point 93 of the SO), it refers to 'a number of theproducers and 'the undertakings concerned, but not to associations ofundertakings. It also refers to the failure to cooperate on the part of 'theundertakings during the investigation. 482. The Commission contends that, in the context of an SO which clearly describes theparticipation of the associations of undertakings in the Cembureau agreement, theparaphrasing of Article 15(2) of Regulation No 17 in the first paragraph of point93 of the SO should have been sufficient to inform the associations of undertakings,during the administrative procedure, that it was likely that fines would be imposedupon them in respect of their participation in the Cembureau agreement. 483. That argument cannot be accepted. Although the SO unequivocally complainedthat the associations of undertakings had participated in the Cembureau agreement,the same was also true with regard to the undertakings (see paragraphs 506 to 543below). The Commission explained in the second paragraph of point 93 of the SOthat the initial conditions (order of 25 March 1996 in Case C-137/95 P SPO andOthers v Commission [1996] ECR I-1611, paragraph 53) to enable the impositionof fines were fulfilled with regard to the undertakings, when it stated that they hadcommitted the infringements referred to in the SO 'intentionally or negligently.On the other hand, it made no statement of that kind in regard to the associationsof undertakings. Likewise, in the third paragraph of point 93, the Commission, when explaining how the amount of the fines would be determined, referred onlyto the conduct of undertakings. If the paraphrase of Article 15(2) of RegulationNo 17 in the first subparagraph of point 93 had sufficed to inform the associationsof undertakings that a fine would be imposed on them, it should also have sufficedfor the undertakings. It is thus clear that in its statements in the SO concerning theinitial conditions for the imposition of a fine and the determination of the amountof the fine, the Commission did not express its intention to impose fines also onassociations of undertakings. 484. Moreover, an SO must provide the person to whom it is addressed with details ofthe deliberate or negligent nature of the infringement he is alleged to havecommitted and of the gravity and duration of that infringement relevant todetermining the amount of the fine, so that he can foresee that a fine may beimposed on him (see, to this effect, Musique Diffusion Française and Others vCommission, cited above in paragraph 439, paragraph 21). Article 15(2) ofRegulation No 17 deals expressly with those two separate matters (order in SPOand Others v Commission, cited above at paragraph 483, paragraph 53). However,in the present case, all the information in the SO relating to the initial conditionsfor the imposition of a fine and to the gravity and the duration of the infringementrelated only to undertakings. The associations of undertakings could not thereforeforesee that the Commission was about to fine them also. 485. It is also normal practice for the Commission, where it finds that an association ofundertakings and its members have participated in the same infringement, toimpose a fine either on the undertakings which are members of that association ofundertakings or on the association of undertakings. In the latter case, it may takethe turnover of the members of the association as a basis for calculating the fine,at least where, by virtue of its internal rules, the association is able to bind itsmembers (CB and Europay v Commission, cited at paragraph 83 above, paragraphs136 and 137, Case T-29/92 SPO and Others v Commission [1995] ECR II-289,paragraph 385, and Joined Cases T-213/95 and T-18/96 SCK and FNK vCommission [1997] ECR II-1739, paragraph 253). If, for particular reasons, such asthose mentioned in recital 65, paragraph 8, of the contested decision, it intends tofine both the association of undertakings and the member undertakings of thatassociation, it must make that intention clear in the SO or in a supplement thereto.In the present case, from that point of view also, point 93 of the SO was notprecise enough to enable the associations of undertakings to discern theCommission's intention to impose fines upon them. 486. Furthermore, the Commission has not refuted Oficemen's claim in its application(paragraph 60) that Oficemen had expressly pointed out in its reply to the SO thatit assumed that the Commission did not intend to impose fines on the associationsof undertakings. Moreover, FIC's reply to the SO (annex 6 to the application) doesnot contain any argument relating to the fines. Nevertheless, the Commission did not consider it necessary to warn the associations of undertakings, in a supplementto the SO, that they could be subject to a fine. 487. Thus, by not requesting FIC, VNC and Oficemen, during the administrativeprocedure, to submit their observations on the possible exercise of its power toimpose fines under Article 15(2) of Regulation No 17, the Commission infringedan essential procedural requirement. A plea alleging breach of an essentialprocedural requirement may be raised by the Court of its own motion (Case C-291/89 Interhotel v Commission [1991] ECR I-2257, paragraph 14, and Commissionv Sytraval and Brink's France, cited in paragraph 469 above, paragraph 67); theCourt finds that there was such a breach in the course of the actions brought by theother associations of undertakings to which the contested decision was addressedand which also received, during the administrative procedure, an SO notmentioning the Commission's intention to impose a fine upon them. 488. Article 9 of the contested decision must therefore be annulled in so far as itimposes a fine on the following associations of undertakings: Cembureau, FIC,VNC, SFIC, BDZ, BCA, Oficemen, ATIC and AGCI. 2. The method of dealing with the CBS agreement 489. FIC, ENCI and VNC complain about the Commission's method of dealing with theCBS agreement, an agreement concluded between German, Belgian andNetherlands producers with regard to the supply of the Dutch market and notifiedto the Commission in 1975. 490. ENCI and VNC submit that the SO indicated in footnote 10 that there would bea separate examination of the CBS agreement. Since there is no chapter on theNetherlands, the SO is incomplete. ENCI and VNC claim that the German versionof the SO substantiates their contention, as footnote 10 in that language versionexpressly states that the CBS agreement is to be examined in another chapter ofthe SO yet to be drawn up. 491. That argument must be rejected. As the Commission points out, the reason for theabsence of any chapter in the SO dealing specifically with the Netherlands, is thatno objection was raised in respect of the Dutch market. Since ENCI and VNC havenot shown that an objection specific to the Dutch market was raised against themin the contested decision, they cannot claim that the SO was incomplete without a'Netherlands chapter. The absence of such a chapter has not impaired theirdefence during the administrative procedure against the objections upheld in thecontested decision. Moreover, the CBS agreement, referred to in footnote 10 of theSO and in recital 23, paragraph 2, and recital 51 of the contested decision, did notitself give rise to an objection either in the SO or in the contested decision. Thefact that the Commission reserved the right to initiate a proceeding concerning the CBS agreement could not have undermined ENCI's and VNC's defence in aprocedure in which no objection relating to that CBS agreement was everexpressed. Finally, the applicants cannot base any argument on the German versionof the SO. Since the applicants are established in the Netherlands, the Commissionsent them the Dutch version of the SO and only that version is therefore authenticas against them. 492. FIC argues that the Commission infringed its rights of defence by mentioning theCBS agreement in support of its contention that there was a Belgium-Netherlands-Germany agreement (contested decision, recital 23, paragraph 2), at a time whenthe Commission had not yet reacted to the notification of that agreement. In anyevent, the Commission sought in that way to undermine the credibility of theapplicant and of the other parties concerned. 493. The Court notes that, at recital 23, paragraph 2, of the contested decision, theCommission referred to the CBS agreement in the context of the factualdescription of a Belgium-Netherlands-Germany agreement. None the less, in recital51, after recalling that it had 'already stated (page 34, footnote 10, of the SO) thatthe CBS agreement would be examined under separate proceedings, it decided notto adopt a position on the existence of such an agreement. It therefore made noreference to the CBS agreement in the context of an objection upheld in thecontested decision. In those circumstances, FIC's argument must be rejected. 3. The alleged failure to explain the Commission's territorial jurisdiction 494. Aker and EUROC submit that the SO does not set out the factual or legal groundsto support the Commission's claim of territorial jurisdiction to apply Article 85(1)of the Treaty to the conduct of undertakings established outside the Community.Accordingly, those applicants did not have the opportunity to comment on thatpoint during the administrative procedure and their rights of defence were therebyinfringed. 495. Although the SO contains no explanations as to the Commission's jurisdiction toapply Article 85(1) of the Treaty to undertakings originating in third countries, theCourt points out, however, that on reading the SO, the applicants should have beenaware of the specific objection which the Commission was raising against them(participation in the Cembureau agreement on non-transhipment to domesticmarkets  SO, points 9 and 61(a)  and participation in the ETF and itsimplementation measures  SO, points 16, 17, 18, 19(d), 20(f), and 61(h); seeparagraphs 524 and 527 below). By letter dated 16 July 1992, the Commission alsoinformed the two applicants that 'the SO had been sent to them because of theirparticipation in the Cembureau Task Force or the ETF, whose object was toprevent supplies of Greek cement in the Community, to absorb Greek cement andto deflect the Greek production surplus outside Europe (contested decision, recital 53, paragraph 11). Since they were aware of the conduct with which they werecharged in the SO, Aker and EUROC therefore had the opportunity, during theadministrative procedure, to submit that they had a special situation resulting fromtheir location outside the Community, and to indicate the conclusions which, intheir view, should be drawn as to the territorial scope of Article 85(1) of theTreaty. 496. Their argument must therefore be rejected. 4. The alleged failure to analyse the market and to precisely define therelevant markets 497. Hornos Ibéricos states that the Commission should have carried out an economicanalysis of the market in order to verify whether there was an alternativeexplanation for the conduct complained of other than that of unlawful collusion(Woodpulp II, cited above at paragraph 106, paragraphs 71 and 72). TheCommission either did not make the requisite thorough study of the market, failingthus to observe the minimum requirements as to proof, or never sent the applicantthe documents concerning such a study, in which case there was an infringementof the rights of the defence. 498. The Court finds that the Commission was not required to establish whether theconduct complained of could be explained as the result of anything other than anunlawful concerted practice. The infringements were proved in the SO and in thecontested decision by specific documentary evidence and not by parallel conducton the market (see paragraph 264 above). Moreover, the SO does contain ananalysis of the market. Chapter 1 of the SO, consisting of nine pages, is entitled'The Cement Market. It is subdivided into four points: the Product;Characteristics of the industry; Supply; and Demand. The applicant does not denyhaving received that chapter during the course of the administrative procedure. Itsargument must therefore be rejected. 499. Italcementi submits that the Commission has not defined the relevant geographicalmarket in the SO. By failing so to do, it deprived it of the possibility of commentingon an essential factor for the assessment of its conduct. 500. The Court finds that point 5 of Chapter 1 of the SO, entitled 'Intra-Communitytrade, in which the Commission states that the low level of trade 'is due not somuch to the cost of transporting a heavy product as to a long-standing tradition ofnot encroaching on the markets of neighbouring countries. The Commission thusinformed the addressees of the SO that the geographical market was wider than thenational one, so that the practices referred to in the SO were liable to affect tradebetween Member States (SO, points 62, 65 and 68) and to infringe Article 85(1)of the Treaty. In those circumstances, the complaint that the geographical market was not defined must be rejected (see, to this effect, SPO and Others v Commission,cited at paragraph 485 above, paragraphs 74 and 75). 501. Italcementi also submits that in the SO the Commission made no distinctionbetween grey and white cement. By stating in the contested decision (recital 11,paragraph 1) that white cement is not in the same market as grey cement, theCommission altered its definition of the market but did not serve a fresh statementof objections on the parties. 502. That argument must also be rejected. The SO had already made a distinctionbetween grey and white cement (point 1). Moreover, it contained separatearguments dealing specifically with agreements and practices on the white cementmarket (Chapter 2, Section 3, and Chapter 11). The other agreements andpractices mentioned in the SO all concerned the grey cement market. By the stageof the SO, the Commission was already of the view that white cement was not partof the same market as grey cement. 503. It follows from all the foregoing that the present plea is well founded to the extentthat it relates to the Commission's failure to indicate in the SO that it intended toimpose fines on trade associations (see paragraphs 478 to 488 above). All the otherarguments claiming that the SO is incomplete must be rejected. C  The alleged lack of precision in the SO as to the participation of certainapplicants in various objections raised in the SO 504. Most of the applicants submit that the SO was not sufficiently precise as to theextent to which they are alleged to have participated in one or other type ofunlawful conduct. The Court points out, however, that such an argument, where itproves to be well founded, can lead to a finding of infringement of rights of thedefence only where the objection against the applicant concerned is insufficientlyprecise and is subsequently sustained in the contested decision. An infringement ofthe rights of the defence must therefore be assessed in the light of the objectionsraised by the Commission in the SO and in the contested decision (T-30/91 Solvayv Commission, paragraph 60, and T-36/91 ICI v Commission, paragraph 70, citedin 106 above). Thus, the assertion by Unicem (T-50/95) and Cementir (T-87/95)that the SO did not explain how they participated in the objection relating to therules of fair competition can already be rejected at this stage because thediscussions on 'fair or healthy or correct competition mentioned in paragraph 17of the contested decision were not the subject-matter of any complaint in theoperative part of the contested decision. 505. The other arguments put forward by various applicants will be analysed below inthe order that the infringements are found in the contested decision. 1. Participation of the applicants concerned in the infringement constituted bythe Cembureau agreement and the duration of that infringement 506. According to the contested decision, at the meeting of Head Delegates held on 14January 1983 Cembureau and its members reached an agreement on non-transhipment to domestic markets and on the regulation of sales from one countryto another (contested decision, recital 45, paragraphs 1 and 9), an agreementreferred to by the Commission as the 'Cembureau agreement. According to thecontested decision, the participants in that agreement were Cembureau,Cembureau's members (hereinafter referred to as 'direct members ofCembureau) and certain other undertakings not members of Cembureau but ofa national association which was itself a member of Cembureau (hereinafterreferred to as 'indirect members of Cembureau). However, so far as concerns theindirect members of Cembureau, 'for the purposes of [the] Decision, theCommission [took] into consideration only the undertakings which were representedwithin Cembureau by their association and which, in addition to their membershipof the association, [had] clearly manifested their accession to the agreement byparticipating in the implementation of the Cembureau agreement (contesteddecision, recital 65, paragraph 3, first subparagraph). Thus, the indirect membersof Cembureau which participated in one or more of the infringements referred toin Articles 3 to 6 of the contested decision were regarded in it as havingparticipated in the Cembureau agreement. Buzzi, which is neither a direct norindirect member of Cembureau, acceded to the Cembureau agreement through itsparticipation in the Franco-Italian concerted practices referred to in Article 3(1)of the contested decision (contested decision, recital 65, paragraphs 3 and 4). TheCommission took the view (in recital 46, paragraph 1, first subparagraph) that the'whole of the arrangements adopted within the framework of Cembureau and thebilateral and/or multilateral meetings and contacts constituted a single andcontinuous agreement. That single and continuous Cembureau agreement is thesubject-matter of Article 1 of the contested decision. 507. CBR (T-25/95), ENCI (T-31/95), VNC (T-32/95), Ciments Luxembourgeois(T-34/95), Dyckerhoff (T-35/95), SFIC (T-36/95), Vicat (T-37/95), Ciments Français(T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), BDZ(T-48/95), Unicem (T-50/95), Buzzi (T-51/95), Valenciana (T-52/95), Rugby(T-53/95), BCA (T-54/95), Asland (T-55/95), Castle (T-56/95), Uniland (T-58/95),Cimpor (T-61/95), SECIL (T-62/95), ATIC (T-63/95), Hornos Ibéricos (T-69/95),Aker (T-70/95), EUROC (T-71/95) and Blue Circle (T-88/95) submit that the SOdoes not identify them as parties to the Cembureau agreement. They were nottherefore able to defend themselves during the administrative procedure against theclaim that they participated in the infringement referred to in Article 1 of thecontested decision. That article should, accordingly, be annulled as against them. 508. In the context of the present plea, CBR, Vicat, Rugby and Castle also claim thatthe Commission did not inform them during the administrative procedure that it was going to take their membership of a national association that was a directmember of Cembureau as a ground for concluding that they had acceded to theCembureau agreement. FIC (T-30/95), Ciments Français, Aalborg, Lafarge,Unicem, Heracles, Uniland, Italcementi (T-65/95), Hornos Ibéricos, Aker, EUROCand AGCI (T-103/95) criticise the lack of precision of the SO as to the duration ofthe infringement found in Article 1 of the contested decision. 509. The Court will consider, first of all (in section 1.1.), whether Chapters 2 and 10 ofthe SO charge the abovementioned applicants sufficiently clearly with theparticipation in the Cembureau agreement found in Article 1 of the contesteddecision. Next (in section 1.2), it will ascertain whether, and to what extent, anundertaking's membership of a national association is a factor which was taken intoconsideration by the Commission in determining the participation in theinfringement found in Article 1 of the contested decision and whether the SO wassufficiently clear in that regard. In section 1.3 the Court will also examine thequestion whether the SO gives a sufficiently clear explanation of the duration of theCembureau agreement referred to in Article 1 of the contested decision. Finally,in section 1.4, the appropriate conclusions will be drawn from the findings made. 1.1. Participation in the infringement referred to in Article 1 of the contesteddecision 510. A distinction should be drawn between those applicants which are members ofCembureau (1.1.1.) and those which are not members of that association or notregarded as such in the SO (1.1.2.). 1.1.1. Addressees of the SO which are members of Cembureau 511. VNC, Ciments Luxembourgeois, SFIC, Aalborg, BDZ, Unicem, BCA and ATIC aredirect members of Cembureau. 512. The second paragraph of point 6 of Chapter 2 of the SO expressly refers to themas such. 513. The third paragraph of point 61 of Chapter 10 states: 'As may be seen from point 9, Cembureau and its members adopted theCembureau agreement or Cembureau principle of not transhipping to internalEuropean markets. 514. The first paragraph of Point 61(a) adds: 'The Cembureau agreement or principle of not transhipping to internal Europeanmarkets (point 9) constitutes an agreement and/or a concerted practice betweenCembureau and its members ... 515. In those circumstances, the abovementioned eight applicants, direct members ofCembureau, cannot claim that the SO does not identify them as being party to theCembureau agreement. 1.1.2. Addressees which are not direct members of Cembureau or regarded in theSO as not being direct members 516. The other applicants which have submitted the line of argument underconsideration are either not direct members of Cembureau (CBR, ENCI,Dyckerhoff, Vicat, Ciments Français, Heidelberger, Lafarge, Buzzi, Valenciana,Rugby, Asland, Castle, Uniland, Cimpor, SECIL, Hornos Ibéricos and Blue Circle)or are direct members but not regarded as such in the SO (Aker and EUROC).They claim that the third paragraph of point 61 of the SO, which states that'Cembureau and its members adopted the Cembureau agreement, shows that theSO was not sufficiently precise in regard to them so far as concerns theirparticipation in that agreement. 517. Separate analysis is required of the position of undertakings which, according to theSO and the contested decision, participated in bilateral or multilateral agreementsand concerted practices (Chapter 10, point 61 of the SO, and Articles 3 and 4 ofthe contested decision), namely CBR, Dyckerhoff, Vicat, Ciments Français,Heidelberger, Lafarge, Buzzi, Rugby, Asland, Castle, Uniland, Cimpor, SECIL,Aker, EUROC and Blue Circle (see 1.1.2.1 below); that of undertakings whichparticipated in the activities of the ECEC (Chapter 12, point 66, of the SO andArticle 5 of the contested decision), namely ENCI, Dykerhoff and Castle (see1.1.2.2 below); and that of undertakings which participated in the activities of theEPC (Chapter 12, point 67 of the SO and Article 6 of the contested decision),namely Ciments Français, Lafarge, Valenciana, Hornos Ibéricos and Blue Circle(see 1.1.2.3 below). 1.1.2.1. Addressees of the SO, not direct members of Cembureau, which arealleged to have participated in bilateral or multilateral agreements and concertedpractices 518. In order to ascertain whether CBR, Dyckerhoff, Vicat, Ciments Français,Heidelberger, Lafarge, Buzzi, Rugby, Asland, Castle, Uniland, Cimpor, SECIL,Aker, EUROC and Blue Circle could, upon reading the SO, have realised that theywere being accused of participating in the Cembureau agreement, it is necessaryfirst of all to refer to the structure of the part of 'The Facts of the SO relating to the Cembureau agreement and to the bilateral and multilateral agreements andconcerted practices (Chapter 2, Sections 1 and 2, of the SO). The structure is asfollows: 'Chapter 2  The international cement organisations Section 1  Cembureau ... 9. The Cembureau agreement or Cembureau principle of not transhipping tointernal European markets 10. Implementation of the Cembureau agreement or Principle of nottranshipping to internal European markets: France-Italy 11. Implementation of the Cembureau agreement or Principle of nottranshipping to internal European markets: Spain-Portugal 12. Implementation of the Cembureau agreement or Principle of nottranshipping to internal European markets: France-Germany ... Section 2  Cembureau Task Force or European Task Force ... 519. Although the 'Cembureau Task Force or European Task Force is thus dealt within a separate section of the SO, the footnote to the title of that section states: 'Logically, this Task Force should be included in Section 1, since its creation ismerely an aspect of the implementation of the Cembureau agreement orCembureau Principle of not transhipping to internal European markets. It is dealtwith in a separate section solely because of the length of the outline required. 520. Paragraphs 5 to 11 of Point 61 of the 'Legal Assessment of the SO (Chapter 10),which is entitled 'Agreements and concerted practices on the home market rule,present the various bilateral and multilateral agreements as applications of the'Cembureau agreement or Cembureau Principle of not transhipping to internalEuropean markets. Of the ETF, paragraph 11 states: 'The most flagrant and mostserious application of the home market rule occurred in connection with the so-called Greek problem (see Section 2, points 16 to 20). Cembureau and all theother members mobilised in order to attack the member which had dared to infringe the home market rule: a Task Force was set up, and market regulations,stick actions and carrot actions were taken against the Greek producers. 521. In Chapter 10 of the 'Legal Assessment of the SO, the parties to the bilateral andmultilateral agreements (France-Italy; Spain-Portugal; France-Germany; ETF) arementioned by name. Vicat, Ciments Français, Lafarge and Buzzi are identified ashaving participated in the Franco-Italian agreement (SO, point 61(b), Chapter 10),Cimpor and SECIL as having participated in the Spanish-Portuguese agreement(SO, point 61(c) of Chapter 10), Dyckerhoff, Ciments Français, Heidelberger andLafarge as having participated in the Franco-German agreement (SO, point 61(d),Chapter 10), and CBR, Dyckerhoff, Ciments Français, Heidelberger, Lafarge,Rugby, Asland, Castle, Uniland, Aker, EUROC and Blue Circle as havingparticipated in one or more infringements in the framework of the ETF (SO, point61(h) of Chapter 10). 522. The first and second paragraphs of point 61 of the SO state as follows: 'This involves a set of agreements and/or concerted practices resulting originallyfrom and conditioned by the laying down of and compliance with the home marketrule and, subsequently, from bilateral or multilateral arrangements supplementingsuch rule or underpinning its implementation. All the documents obtained during the investigation show that the Europeancement producers adopted and accepted the home market rule on the basis ofmutual cooperation enabling the sector to be organised. 523. It thus appears that, even though the SO states in the third paragraph of point 61(Chapter 10) that 'Cembureau and its members adopted the Cembureauagreement or Cembureau principle of not transhipping to internal Europeanmarkets, it also alleges sufficiently clearly that the addressees of the SO whichare not direct members of Cembureau acceded to the Cembureau agreement,accusing them of participating in one or more bilateral and multilateral agreementsand/or concerted practices. 524. In those circumstances, CBR, Dyckerhoff, Vicat, Ciments Français, Heidelberger,Lafarge, Buzzi, Rugby, Asland, Castle, Uniland, Cimpor, SECIL, Aker, EUROCand Blue Circle could have realised, on reading the SO, that they were regardedas acceding, by dint of their participation in one or more bilateral or multilateralagreements and/or concerted practices, to the Cembureau agreement, which haditself been adopted by Cembureau and its members. They cannot therefore claimthat the SO accused them only of participating in one or more of those agreementsand/or concerted practices but not in the infringement referred to in Article 1 ofthe contested decision. 525. Vicat submits further that the SO does not adduce any evidence to show that it wasa party to the conclusion of the Cembureau agreement. Its assertion cannot beaccepted. The evidence adduced by the Commission in support of the objectionraised against the Franco-Italian agreement between Vicat and Buzzi is expresslyset out in point 10 and in point 61(b) of the SO and, according to the SO, provesthat Vicat acceded to the Cembureau agreement. 526. Finally, Aker and EUROC observe that the letter of 16 July 1992 referred to in thecontested decision (recital 53, paragraph 11) informed them that the SO had beenaddressed to them on account of their participation in the ETF. 527. However, even though that letter informed them that the SO had been addressedto them on account of their participation in the ETF, those applicants could realise,on reading the SO, that by virtue of their participation in the ETF they weredeemed to have acceded also to the Cembureau agreement. 1.1.2.2. Addressees of the SO, not direct members of Cembureau, which arealleged to have participated in the activities of the ECEC 528. The fifth paragraph of point 66 of the 'Legal Assessment of the SO states: 'The agreement on the setting-up of the ECEC and the agreements and/orconcerted practices on exports to third countries constitute infringements of Article85(1) committed by the ECMEC and by the members of the ECEC as from 1980at least ... 529. Among the members of the ECEC mentioned by name in point 25 of the SO areENCI, Dykerhoff and Castle, which are not direct members of Cembureau. In theirapplications they complain that the SO lacks precision so far as concerns theirparticipation in the Cembureau agreement. 530. ENCI rightly observes that the drafting of the fifth paragraph of point 66 of theDutch version of the SO which was sent to it, and which is the only one which isauthentic as against it, differs from the other language versions of the SO. 531. That passage of the SO is in fact worded as follows: 'The agreement on the setting-up of the ECEC and the agreements and/orconcerted practices on exports to third countries constitute infringements of Article85(1) committed by the ECMEC and by the members of the ECMEC as from 1980at least ... 532. However, at point 25 of 'The Facts of the SO, the Commission lists the membersof the ECEC, among which appears 'for the Netherlands, ENCI. Furthermore, in point 24 it outlines the origin not only of the ECEC but also of the EPC, stating:'Since at least 1980, it had been decided that [those] two Committees would havea single secretariat, and the structure providing this secretarial service has beencalled the ECMEC. 533. Accordingly, on reading those two points, an addressee of the SO was able tounderstand that, where an objection was raised against the members of theECMEC, it was also raised against the members of the ECEC and those of theEPC. 534. It follows that ENCI, identified as a member of the ECEC at point 24 of the SO,cannot complain of a lack of precision in the SO so far as concerns its participationin the agreements and/or concerted practices in the ECEC, even if that objection,in point 66 of the Dutch version of the SO, was directed against the ECMEC andits members. 535. It is apparent, moreover, from the SO, that through their participation in theconcerted practices in the context of the ECEC the members of theECEC/ECMEC were deemed to have participated in the Cembureau agreement.The first and fourth paragraphs of point 66 of the SO state: 'In order to assess the activities of the ECEC, it must be seen in context. As seenin points 9 and [61], Cembureau adopted the Cembureau agreement or principleof not transhipping to internal European markets. In order to ensure that this wascomplied with, means had to be found of channelling Cembureau members' surplusoutput to other countries and ensuring that the surpluses did not end up on theEuropean markets ... Consequently, the agreement on the setting-up of the ECECand the agreements and/or practices relating to the commercial policy to bepursued on exports to third countries cannot be viewed in isolation, but must beseen as inseparable from the agreement on non-encroachment on respective homemarkets. 536. It follows that, on reading the SO, the members of the ECEC, including ENCI,Dykerhoff and Castle, could understand that their participation in the ECEC'sactivities was regarded as a sign of their having acceded to the Cembureauagreement. 1.1.2.3. Addressees of the SO, not direct members of Cembureau, which arealleged to have participated in the activities of the EPC 537. Point 67 of Chapter 12 of the SO relating to the 'legal assessment of the activitiesof the EPC accuses the members of the EPC of having committed an infringementof Article 85(1) of the Treaty by creating that committee and by participating inagreements and/or concerted practices concerning cooperation on exports to third countries. Among the members of the EPC mentioned by name in point 27 of 'TheFacts of the SO are Ciments Français, Lafarge, Valenciana, Hornos Ibéricos andBlue Circle, five undertakings which are not direct members of Cembureau, whichcomplain in their applications of the lack of precision of the SO so far as concernstheir participation in the Cembureau agreement. 538. So far as concerns the activities of the EPC, point 28 of 'The Facts of the SO,which deals with the EPC and is entitled 'Respect of home markets, states: 'Although the rule that home markets must be respected is not mentionedexplicitly, it is clearly evident [in various documents]. 539. The second and fourth paragraphs of point 67 in the 'Legal Assessment of the SOare worded as follows: 'The cooperation between the members involving market sharing, price fixing andthe exchange of information, in order to channel surplus output to third countries,is merely a consequence and a means of controlling the application of the homemarket rule: the home market rule and cooperation on exports are, thus, closelylinked. ... [The agreement on the establishment of the EPC has] the object of restricting,through the implementation of the home market rule, the scope for the membersof [the EPC] to sell within the common market. 540. Since the Commission thus considered that the cooperation between the membersof the EPC was a means of controlling the implementation of the home marketrule, it was necessarily accusing them of having acceded to that rule. 541. Accordingly, on reading the SO, the members of the EPC, including CimentsFrançais, Lafarge, Valenciana, Hornos Ibéricos and Blue Circle, could understandthat their participation in the activities of the EPC was an indication of their havingacceded to the Cembureau agreement. 1.1.3. Interim conclusions 542. It follows from the foregoing that all the applicants which have pleaded lack ofprecision of the SO as regards their participation in the Cembureau agreement (seeparagraph 507 above) could ascertain, upon reading the SO, that the Commissionwas accusing them of having participated in the Cembureau agreement. Accordingto the SO, the Cembureau agreement had been adopted by Cembureau and itsmembers; the applicants identified at paragraph 511 above, all direct members of Cembureau, should therefore have understood that that objection was being raisedagainst them. Moreover, so far as concerns the applicants identified at paragraph516 above, which are not direct members of Cembureau, the SO charged themsufficiently clearly with having acceded to the Cembureau agreement by virtue oftheir participation in one or more measures implementing that agreement. 543. Furthermore, at point 59 in the 'Legal Assessment of the SO, the Commissiondescribed 'all these arrangements adopted within the framework of Cembureauand the bilateral and multilateral meetings and contacts ... [as] a single andcontinuous agreement. All the applicants which have raised the present plea(see paragraph 507 above) were thus informed, during the administrativeprocedure, of the objection that they had participated in the single and continuousCembureau agreement referred to in Article 1 of the contested decision. Theycould thus have effectively made known their views on that objection during theadministrative procedure. 1.2. Membership of a national association that was a direct member ofCembureau as a criterion for attributing responsibility for the infringement referredto in Article 1 of the contested decision 544. CBR, Vicat, Rugby and Castle submit that the Commission did not inform themduring the administrative procedure that it was going to take an undertaking'smembership of a national association that was a direct member of Cembureau asa ground for concluding that that undertaking had acceded to the infringementreferred to in Article 1 of the contested decision. 545. All the indirect members of Cembureau which have claimed in their applicationsthat the SO was not sufficiently precise to enable them to understand that theywere accused of participating in the Cembureau agreement (namely CBR, ENCI,Dyckerhoff, Vicat, Ciments Français, Heidelberger, Lafarge, Valenciana, Rugby,Asland, Castle, Uniland, Cimpor, SECIL, Hornos Ibéricos and Blue Circle) also putforward the more restricted argument alleging that the SO was insufficiently preciseas to the inferences which the Commission was going to draw, in the contesteddecision, from an addressee's membership of a direct member of Cembureau. 546. In the contested decision (recital 65, paragraph 3, first subparagraph), theCommission states: 'All the undertakings and associations of undertakings to which this Decision isaddressed acceded to the agreement or principle of not transhipping to homemarkets (grey cement market), concluded on 14 January 1983 between theassociations and undertakings which were direct members of Cembureau. As fromthat date, that agreement bound those undertakings and the undertakings whichwere members of the national associations concerned. 547. It therefore considers that the indirect members of Cembureau were representedat the Head Delegates meeting held on 14 January 1983 by their nationalassociation, a direct member of Cembureau, so that they were bound as from thatdate by that agreement. 548. It takes the view (contested decision, recital 44, paragraph 5) that '... if the associations enter into commitments, they do so in the interests of theirmembers and in the name of their members and not in their own interest: in pointof fact, the cement producers are the real actors, acting through their tradeassociations. 549. However, as regards the direct and indirect members of Cembureau which, on 14January 1983 when the Cembureau agreement was allegedly concluded, wereestablished outside the Community, the Commission finds in the contested decision(recitals 45, paragraph 11 and 65, paragraph 4, and Article 1) that theirparticipation in the Cembureau agreement constituted an infringement ofArticle 85(1) of the Treaty from the date on which it has evidence that suchparticipation had effects within the Community. 550. Finally, in the case of Buzzi, in the contested decision (recital 65, paragraph 4, firstsubparagraph; see also recital 65, paragraph 3, first subparagraph) the Commissiontakes 11 May 1983 as the starting point of its participation in the infringementfound in Article 1: 'Buzzi was not, either directly or indirectly, a member of Cembureau. It istherefore the start of the concerted practice in which Buzzi participated which mustbe regarded as providing evidence of its participation in the Cembureau agreementor principle of not transhipping to home markets. 551. It follows from the foregoing that, in the contested decision, membership of anational association which was a member of Cembureau led the Commission tofind that indirect members of Cembureau which took part in one or more of themeasures for the implementation of the Cembureau agreement referred to inArticles 3 to 6 of the contested decision had participated in the Cembureauagreement as from 14 January 1983, the date on which it was concluded. However,contrary to the submissions of CBR and Vicat, it did not take such membership asthe only ground for concluding that the indirect members of Cembureau accededto the infringement referred to in Article 1. Indeed, it found such an infringementto have been committed only by 'the undertakings which were represented withinCembureau by their association and which, in addition to their membership of theassociation, clearly manifested their accession to the agreement by participatingin a measure implementing the Cembureau agreement (contested decision, recital65, paragraph 3, first subparagraph). 552. None the less, membership of a national association that was a direct member ofCembureau was taken into consideration when determining the starting point ofparticipation of the indirect members of Cembureau in the infringement. Thus,where indirect members of Cembureau were represented by a direct member ofCembureau at the time when the Cembureau agreement was agreed andconfirmed, their participation in a measure implementing that agreement was,according to the contested decision, a manifestation of their participation in theagreement itself as from 14 January 1983. 553. The addressees of the SO in question should have been informed during theadministrative procedure that that matter was being taken into consideration.Observance of the rights of the defence requires that the undertakings andassociations of undertakings concerned be afforded the opportunity, from the stageof the administrative procedure, to make known their views on the truth andrelevance of the facts, objections and circumstances put forward by the Commission(Hoffman-La Roche v Commission, cited in paragraph 106 above, paragraph 11,Woodpulp II, cited at paragraph 106 above, paragraphs 40 to 53, and CB andEuropay v Commission, cited at paragraph 83 above, paragraph 48). TheCommission, which must state in the SO, as an essential factor, the duration of theinfringement found by it (Musique Diffusion Française, cited at paragraph 439above, paragraph 15), must set out in the SO all the relevant information as to thestarting date of the infringement in question. 554. It is therefore necessary to examine whether the SO set out sufficiently clearly thatmembership of a national association that was a direct member of Cembureau wasrelevant in determining the date on which the indirect members of Cembureaustarted to participate in the infringement constituted by the Cembureau agreement. 555. Although the indirect members of Cembureau knew that they were members of anational association which was itself a direct member of Cembureau, it must beasked whether they could reasonably have deduced from the SO the conclusionswhich the Commission intended to draw from their membership of a direct memberof Cembureau (judgments cited at paragraph 323 above: T-11/89 Shell vCommission, paragraph 56, and T-13/89 ICI v Commission, paragraph 35). 556. The Court finds first of all that the Commission, when it establishes theirparticipation in the Cembureau agreement makes no reference whatsoever in theSO to the fact that the indirect members of Cembureau were members of anational association. Nowhere does the SO state that membership of a nationalassociation that was a direct member of Cembureau is relevant to determining thedate at which the indirect members of Cembureau began to participate in theinfringement constituted by the Cembureau agreement (SO points 9, 59 and 61).Moreover, the wording of the SO is inconsistent with such an interpretation. 557. In the first place, the SO states (third paragraph of point 61) that the Cembureauagreement was 'adopted by Cembureau and its direct members. It also refers(first paragraph of point 59) to the arrangements and measures 'adopted underCembureau's institutional structure. 558. As regards the non-members of Cembureau, the terms used are different: theCommission refers (first paragraph of point 61) to 'compliance with the homemarket rule. According to the SO, the undertakings in question were not thereforeresponsible for the adoption of the Cembureau agreement. They were deemed tohave acceded to the Cembureau agreement by virtue of their participation in oneor more measures implementing that agreement (see paragraph 542 above). 559. The organisation of the hearings during the administrative procedure reflected thatapproach (see paragraphs 664 to 674 below). Thus, only Cembureau and theundertakings and associations of undertakings which were regarded, in the SO, asdirect members of Cembureau had the opportunity to speak during the hearingsdealing specifically with the Cembureau agreement, because they were deemed tohave adopted that agreement. The indirect members of Cembureau, as well asBuzzi, which were deemed to have acceded to the Cembureau agreement by virtueof their participation in a measure implementing that agreement, were given anopportunity to speak only in the course of the hearings concerning the measuresimplementing the Cembureau agreement (see paragraphs 665 and 666 below). 560. Since 'accession to an agreement takes place ex nunc, the reference, during theadministrative procedure, to the 'accession of non-members of Cembureauconfirms that, at that stage, the Commission did not intend to take Cembureau'sindirect members' membership of a national association as a ground for holdingthem liable, from the date the Cembureau agreement was adopted, for theinfringement constituted by that agreement. 561. Secondly, in point 59 of the 'Legal Assessment of the SO, the Commission statedthat 'all these arrangements adopted within the framework of Cembureau and thebilateral and multilateral meetings and contacts constituted a single and continuousagreement, as from the dates indicated below. If the Commission then consideredthat, because they had been represented by their national associations at the HeadDelegates meeting on 14 January 1983, the participation of indirect members ofCembureau in a measure implementing the Cembureau agreement was amanifestation of their participation in that agreement as from the date on whichit had been concluded, it would not have referred in the SO to commencement'dates for their participation in the single and continuous Cembureau agreement,but to 14 January 1983, as it did in recital 65, paragraph 3, first subparagraph, ofthe contested decision (see paragraph 546 above). 562. It follows that, in the SO, the Commission considered that undertakings which werenot direct members of Cembureau acceded to the Cembureau agreement with effect from the date of their participation in a measure implementing thatagreement. It drew no distinction in that regard between the indirect members ofCembureau and Buzzi, which was neither a direct nor indirect member ofCembureau. As the Cembureau agreement had been adopted by Cembureau andits direct members, all the other undertakings that were not members ofCembureau were deemed to have acceded ex nunc to the Cembureau agreementwith effect from the date of their participation in an implementing measure. In thecontested decision, however, the view that non-members of Cembureau acceded tothe Cembureau agreement with effect from the date of 'their implementation wasadopted only vis-à-vis Buzzi (recital 65, paragraph 4, and Article 1). Unlike theindirect members of Cembureau, Buzzi had not been represented by a nationalassociation at the Head Delegates meeting. 563. It must therefore be concluded that, because of the inconsistency between the SOand the contested decision, the Commission was not entitled in the decision toregard membership, by indirect members of Cembureau, of a national associationthat was a member of Cembureau as a criterion for attributing liability for theinfringement constituted by the Cembureau agreement. 564. That finding cannot, however, lead to the annulment of Article 1 of the contesteddecision in its entirety as against all the indirect members of Cembureau to whomthe contested decision was addressed. As the fact that had not been disclosedduring the administrative procedure led the Commission to find in the contesteddecision that the indirect members of Cembureau that had taken part in one ormore of the implementation measures referred to in Articles 3 to 6 of thecontested decision had participated in the Cembureau agreement with effect from14 January 1983 (see paragraphs 551 and 552 above), the discrepancy between theSO and the contested decision affected the defence of Cembureau's indirectmembers only to the extent that the contested decision finds that they began toparticipate in the infringement referred to in Article 1 of the contested decisionbefore the date on which they had first implemented the Cembureau agreement. 565. That conclusion is therefore of no consequence to indirect members of Cembureauwhich, according to the SO and the contested decision, began to participate in aninfringement classified as a measure implementing the Cembureau agreement onor before the date stated in Article 1 of the contested decision to be the startingdate of their participation in the Cembureau agreement. Thus, Dykerhoff, CimentsFrançais, Heidelberger and Lafarge were identified in the SO (point 61(d)) and inthe contested decision (recital 50 and Article 3(3)(a)) as having participated in theFranco-German agreements and concerted practices which allegedly commencedon 23 June 1982. Accordingly, even though the Commission attached no importancein the contested decision to those undertakings' membership of SFIC or BDZ, itstill took 14 January 1983 as the starting date of their participation in theinfringement referred to in Article 1 of the contested decision. They are deemedto have acceded to the Cembureau agreement by virtue of their participation in the Franco-German agreements and concerted practices. The present argument mustalso be rejected in so far as it is relied upon by Valenciana, Hornos Ibéricos andBlue Circle: according to the SO (Chapter 12, point 67) and the contested decision(recital 59 and Article 6), those undertakings participated in a concerted practicein the framework of the EPC designed to prevent incursions on respective nationalmarkets of the Community at least from 1 July 1981 so far as concerns Blue Circle,and from 1 January 1986 so far as concerns Valenciana and Hornos Ibéricos (SO,Chapter 12, point 67, and contested decision, Article 6). If, without making anyreference to membership of a national association, the Commission had consideredthat the undertakings had acceded to the Cembureau agreement solely by virtueof their participation in a measure implementing that agreement, it would havetaken 14 January 1983 for Blue Circle, and 1 January 1986 for Valenciana andHornos Ibéricos, as the starting date of their participation in the infringementreferred to in Article 1 of the contested decision. Those dates are in fact thestarting dates set out in that article for those undertakings. The arguments putforward by Cimpor and SECIL must be rejected for the same reasons: accordingto the SO and the contested decision, they participated in a measure implementingthe Cembureau agreement, namely the Spanish-Portuguese agreement, thecommencement date of which was fixed in the SO and in the contested decision at1 January 1986 (SO, Chapter 10, point 61(c)); contested decision, recital 49 andArticle 3(2)). That date corresponds to the date set out for those undertakings inArticle 1 of the contested decision. 566. On the other hand, for CBR, ENCI, Vicat, Rugby, Asland, Castle and Uniland, theCommission would have taken a different starting date for their participation in theinfringement referred to in Article 1 of the contested decision, if it had not reliedon their membership of a national association that was a direct member ofCembureau and had taken the view that they had acceded to the Cembureauagreement solely by virtue of their participation in a measure implementing theCembureau agreement. Since all the implementing measures in which CBR, ENCI,Vicat, Rugby and Castle allegedly participated took place after 14 January 1983,it was only by relying on their membership of a national association which was adirect member of Cembureau that the Commission could have taken the view thatthose undertakings had participated in the infringement referred to in Article 1 ofthe contested decision as from that date. The Commission also took 1 January 1986as the starting date for the participation of Asland and Uniland in that infringementby virtue of their participation in Oficemen, although the starting date of theiralleged implementing measures is alleged to be after that date. 567. Article 1 of the contested decision will therefore be annulled to the extent that itholds that CBR, ENCI, Vicat, Rugby, Asland, Castle and Uniland participated inthe Cembureau agreement prior to the date on which they first adopted a measureimplementing that agreement. Vicat must be held to have been in a position todefend itself against the objection that it had acceded to the Cembureau agreementby virtue of its participation, as from 11 May 1983, in an alleged Franco-Italian concerted practice with Buzzi (contested decision, Article 3(1)(c)). CBR, Rugby,Asland and Uniland were able to defend themselves in regard to the question oftheir accession to the Cembureau agreement by virtue of their participation, asfrom 28 May 1986 with regard to CBR, Asland and Uniland (contested decision,Article 4(1)) and as from 16 June 1986 with regard to Rugby (Article 4(4)(a)), inone or more alleged measures taken in the framework of the ETF. Finally, ENCIand Castle were able to defend themselves against the objection that they hadacceded to the Cembureau agreement by virtue of their participation, as from 14March 1984, in alleged concerted practices in the framework of the ECEC(contested decision, Article 5). 568. It follows from the foregoing that Article 1 of the contested decision must, at thisstage, be annulled to the extent that it fixes the starting date of participation in theinfringement at a date prior to 11 May 1983 for Vicat, 14 March 1984 for ENCIand Castle, 28 May 1986 for CBR, Asland and Uniland, and 16 June 1986 forRugby. 1.3. Duration of participation in the infringement referred to in Article 1 of thecontested decision 569. FIC, Ciments Français, Aalborg, Unicem and Uniland (T-58/95) complain in theirapplications about the SO's lack of precision with regard to the starting date oftheir participation in the Cembureau agreement. Aker and EUROC criticise thefact that, unlike the SO, the contested decision (recital 65, paragraphs 3(a), 4 and9(a)) took the view that they had participated directly in the adoption of theCembureau agreement from the very beginning. 570. Those arguments, in so far as they are raised by indirect members of Cembureau,are indissociable from the argument that the Commission did not state sufficientlyclearly in the SO that it was going to take the indirect members' membership of anational association as a ground for concluding that they had participated in theCembureau agreement referred to in Article 1 of the contested decision from adate prior to the date on which they were first alleged to have implemented thatagreement. The argument of Ciments Français must therefore be rejected (seeparagraph 565 above), whereas that of Uniland will be upheld (see paragraphs 566to 568 above). 571. It is still necessary to examine whether FIC, Aalborg, Unicem, Aker and EUROCcould, on reading the SO, have realised that the Commission was accusing them ofhaving participated in the Cembureau agreement as from the commencement datefixed in Article 1 of the contested decision. 572. The SO states (point 61(a)) that the 'Cembureau agreement or principle of nottranshipping to internal European markets constitutes an agreement and/or a concerted practice between Cembureau and its members, in force since at least1983. In point 9, referring explicitly to the Head Delegates meeting held on 14January 1983, it observes that 'several Cembureau documents relating to HeadDelegates meetings referred to the fact that the Cembureau agreement orPrinciple was developed and established within Cembureau. It also indicatessufficiently clearly that the Cembureau agreement, subsequently referred to inArticle 1 of the contested decision, was an infringement of Article 85(1) of theTreaty by Cembureau and its members at least from 14 January 1983. 573. FIC, Aalborg and Unicem, direct members of Cembureau identified as such inpoint 6 of the SO, cannot therefore rely on an alleged lack of clarity of the SOregarding the starting date of the infringement found in Article 1 of the decision.Although Point 6 of the SO does not identify Aker and EUROC as direct membersof Cembureau, they themselves have, however, stated in their reply to the SO thatthey were direct members (joint reply of Aker and EUROC to the SO, points2.1.10 and 2.2.8; annex 2 to the applications in Cases T-70/95 and T-71/95). Theycannot therefore claim that their rights of defence were infringed by the fact thatin the contested decision the Commission treated them as direct members ofCembureau. The argument by Aker and EUROC must therefore be rejected. 574. As regards the end of the infringement found in Article 1 of the contested decision,Ciments Français, Lafarge, Uniland, Italcementi and Hornos Ibéricos state thatrecital 65, paragraph 4, of that decision holds that it ended on 26 March 1993, thatis to say, after the date on which the SO was notified. The Commission thusunlawfully extended the duration of the infringement without giving theundertakings concerned an opportunity to submit their views on that matter.Unicem and AGCI complain that no final termination date was set out in the SOfor the Cembureau agreement. Heracles claims that the SO does not indicatewhether or not, in the Commission's view, the Cembureau agreement had ceasedto be in force when the SO was drawn up. 575. The Court points out that Article 1 of the contested decision does not state whenthe infringement ended. In recital 65, paragraph 4, of the contested decision theCommission indicates that it has 'no certainty that the infringement ever reallyceased. The Commission took 26 March 1993 as the end of the infringement onlyfor the purpose of calculating the fines. 576. Even at the stage of the SO, it had refrained from indicating when most of theinfringements, including the Cembureau agreement, had ended. It considered atpoint 93 of the SO that: '... almost all of the agreements, decisions and concertedpractices are continuing. This statement thus referred to infringements in respectof which the SO did not determine a precise end date. In those circumstances, theaddressees of the SO were able to understand that the Commission intended tofind in the contested decision, in particular in regard to the Cembureau agreement,that the infringement had continued beyond the date of the SO. Accordingly, the rights of defence of the undertakings and associations concerned were notinfringed. 577. Hornos Ibéricos further complains that, in the contested decision (recital 65,paragraph 4), the infringement with which it is charged is found to have continueduntil 26 March 1993, the date on which Interciment was dissolved, whereas the SOdid not mention any link between it and Interciment. 578. According to the SO (see paragraphs 537 to 541 above), Hornos Ibéricos wasdeemed to have acceded to the Cembureau agreement by virtue of its participationin the unlawful activities of the EPC. As the SO indicated sufficiently clearly thatthe Commission considered that the infringement constituted by the Cembureauagreement was still continuing when the SO was drawn up, the Commission did notinfringe the applicant's rights of defence by taking 26 March 1993 as a date in thecontested decision. Neither the contested decision nor the SO found that theapplicant participated in Interciment. The Commission merely adopted, as againstall the addressees of the SO, the date of the liquidation of Interciment as the endof the reference period for calculating the fine, because it was the 'apparently finalmanifestation of the [Cembureau] agreement known to the Commission (contesteddecision, recital 65, paragraph 4). The applicant's argument must therefore berejected. 579. Finally, Heracles (T-57/95) submits that a reading of the second paragraph of point37 of the SO (relations between the United Kingdom and the continent) led it tobelieve that the Commission took the view that its participation in the Cembureauagreement ended in 1986, when it broke the home-market rule by exporting cementto the United Kingdom. 580. The Court points out that, in the SO, the Commission took the view that theinfringements for which it had not indicated a precise end date were continuing(see paragraph 576 above). Such was the case, in particular, for Heracles'participation in the Cembureau agreement. Moreover, the SO raised objectionsagainst Heracles relating to its participation in measures implementing theCembureau agreement well beyond 1986 (participation in the framework of theETF in the carrot actions referred to in points 20 and 61(h) and (v) of the SO;participation in the activities of the EPC referred to in points 27 and 67 of the SO).In those circumstances, the applicant cannot claim that it was misled by point 37of the SO. 1.4. Conclusions 581. The arguments put forward by CBR, ENCI, Vicat, Rugby, Asland, Castle andUniland to the effect that the SO is imprecise in regard to their participation in the Cembureau agreement justify the annulment in part of Article 1 of the contesteddecision (see paragraph 568 above). The other arguments must be rejected. 2. Precision of the SO as regards applicants' participation in the exchanges ofinformation on prices and the duration of that infringement 582. VNC (T-32/95), Ciments Luxembourgeois (T-34/95), SFIC (T-36/95), Aalborg(T-44/95), BDZ (T-48/95), Unicem (T-50/95), BCA (T-54/95) and ATIC (T-63/95)complain that the Commission did not indicate sufficiently clearly in the SOwhether they were held responsible for the exchanges of information on prices. 583. Point 8 of 'The Facts of the SO is entitled 'Circulation of prices betweenCembureau members and point 60 of the 'Legal Assessment, which refers backto point 8, states that 'the circulation of information on price lists, which has beenin force since 1983 at least, constitutes a concerted practice between Cembureauand its members. VNC, Ciments Luxembourgeois, SFIC, Aalborg, BDZ, Unicem,BCA and ATIC were all explicitly stated in point 6 of the SO to be members ofCembureau. In those circumstances, they were in a position to understand, uponreading the SO, that the Commission was accusing them of participating in theexchanges of information at issue. 584. Unicem is also of the view that its rights of defence were infringed because the SOdid not precisely state the date on which the exchanges of information withinCembureau ended. That argument must be rejected for the reasons set out inparagraph 576 above. 3. Precision of the SO as regards applicants' participation in the bilateral andmultilateral agreements referred to in Article 3 of the contested decision 585. Cimpor (T-61/95) maintains that the terms of the SO did not enable it todistinguish the objection concerning the sharing of the Portuguese market from theobjection relating to the Spanish-Portuguese market: the Spanish-Portugueseagreement was covered in the international chapters of the SO and both objectionswere included in the chapters of the SO relating to Portugal. 586. That argument must be rejected. Cimpor does not complain that there is a lack ofprecision in the passages of the international chapters of the SO concerning theSpanish-Portuguese agreement (Chapter 2, point 11, and Chapter 10, point 61(c)),referred to in Article 3(2) of the contested decision. Even though Chapters 9 and19 of the SO relating to Portugal reproduce a number of aspects of that agreementunder the heading 'Cement movements between Portugal and Spain (point 56(b)and 90), such repetition and additional explanation could not have been detrimentalto the applicant's defence. 587. SECIL (T-62/95) states that the terms of the SO did not enable it to discern thestarting date of the Spanish-Portuguese agreement referred to in Article 3(2) of thecontested decision or the date on which the Portuguese agreements and concertedpractices came to an end. 588. The Court points out that in point 61(c) of the SO, which deals with the 'Spanish-Portuguese agreement, the Commission took the view that: 'The agreements entered into between the association of Spanish producersOficemen, assisted by the member producers Valenciana, Asland, Cosmos, [HornosIbéricos] and Valderrivas, and the Portuguese producers Cimpor and SECIL ... notto export to their respective traditional sales territories constitute, as from 1January 1986, restrictions of cement sales and market sharing within the meaningof Article 85(1)(c). 589. The beginning of the infringement referred to in Article 3(2) of the contesteddecision was thus clearly set out in the SO. 590. The complaint that there was no indication of the date on which the Portugueseagreements and concerted practices ended is irrelevant, since the nationalobjections were not repeated in the contested decision. 591. As regards the Franco-German agreement, Dyckerhoff (T-35/95), SFIC (T-36/95),Heidelberger (T-42/95) and BDZ (T-48/95) submit that the SO did not statesufficiently clearly the allegation that they had participated in agreements andconcerted practices involving the regulation of cement supplies from France toGermany and from Germany to France, an infringement referred to inArticle 3(3)(a) of the contested decision. SFIC and BDZ further complain that theCommission did not set out sufficiently clearly in the SO the objection referred toin Article 3(3)(b) of the contested decision, concerning their participation in aconcerted practice involving the exchange of information designed to monitorcompliance with the quantitative restrictions on exports between France andGermany and the breakdown of such exports according to the Länder for whichthey were intended. They thus claim that they were prevented from defendingthemselves properly as regards their participation in the Franco-Germanagreements and concerted practices. 592. That argument must also be rejected: Dykerhoff, SFIC, Heidelberger and BDZwere mentioned by name in point 61(d) of the SO under the heading 'The Franco-German agreements and/or concerted practices as being party to 'agreementsand/or concerted practices ... regarding French supplies to Germany and Germansupplies to France. 593. Moreover, in point 61(d) (third paragraph) of the SO, it had been pointed out: 'The exchanges of statistical data between the [SFIC] and the [BDZ] constitute aconcerted practice restricting competition within the meaning of Article 85(1) ...Such exchanges of statistical information must be seen in conjunction with theagreements and/or practices on sharing the [Franco-German] market ... and aredesigned to allow the two associations concerned to control the target quantitiesallowed for export and their destination by Land. 4. Precision of the SO as regards applicants' participation in the setting-up ofthe ETF and in the measures adopted in the framework thereof, referred to inArticle 4 of the contested decision, and as regards the duration of thoseinfringements 594. Dyckerhoff (T-35/95), SFIC (T-36/95), Heidelberger (T-42/95), Aalborg (T-44/95),BDZ (T-48/95), Unicem (T-50/95), Asland (T-55/95), Uniland (T-58/95) and BlueCircle (T-88/95) claim that the SO did not allege that they had participated in theagreement on the setting-up of the ETF, an infringement referred to in Article 4(1)of the contested decision. 595. That argument must be rejected. Point 17 of 'The Facts of the SO is entitled'Setting up and activity of Cembureau Task Force or European Task Force.The first paragraph of point 61(h) of the 'Legal Assessment states that 'theagreements and practices entered into within the Cembureau Task Force orEuropean Task Force (points 16 to 20) must be viewed as the implementation ofa single plan established by ... Blue Circle ... Asland, Uniland, [... SFIC], ..., BDZ,Heidelberger, Dykerhoff, ... Aalborg ... Unicem ... against the Greek producers forhaving infringed the home market rule. Those undertakings and associations musttherefore have been aware that the Commission was alleging that they hadestablished a single plan against Greek exports, a plan which, on reading point 17in conjunction with point 61(h) of the SO, concerned in particular the agreementsetting-up the ETF. 596. Dyckerhoff, SFIC, Heidelberger, BDZ, Unicem, Asland, Uniland and Blue Circleargue that the SO did not allege that they had participated in the setting-up ofInterciment. They claim that they were not therefore able to defend themselvesagainst the objection referred to in Article 4(2) of the contested decision. 597. That argument must also be rejected. The applicants concerned were identified inthe fourth paragraph of point 61(h)(i) of the 'Legal Assessment of the SO asbeing parties to the agreement to set up Interciment. 598. Dyckerhoff, SFIC, Heidelberger, Lafarge, Aalborg, BDZ, Unicem, Asland, Unilandand Blue Circle also claim that the SO did not allege that they had participated inconcerted practices designed to cause Calcestruzzi to cease being a customer of theGreek producers, and of Titan in particular. They submit that they were therefore unable to defend themselves against the objection referred to in Article 4(3)(a) ofthe contested decision. Unicem claims that it did not have an opportunity ofdefending itself against the objection that it participated in the infringementreferred to in Article 4(3)(b) of the contested decision relating to the agreementbetween Unicem, Italcementi and Cementir which aimed to prevent imports ofGreek cement by Calcestruzzi. 599. It should be noted that in point 19(d) of 'The Facts of the SO, entitled 'Measuresto defend national markets: Italy, the Commission observes in the third paragraph: 'Following the signature of the contract between Titan and Calcestruzzi, the Italiancement producers, particularly Italcementi, Unicem and Cementir, brought theproblem before the Cembureau Task Force and asked the other Europeanproducers for help. The problem of cement imports by Calcestruzzi was includedon the agenda of all the Cembureau Task Force meetings. 600. At point 61(h)(iv) of the 'Legal Assessment of the SO, it states: 'The pressure brought to bear on Calcestruzzi and the non-implementation byCalcestruzzi of the contract on the purchase of cement from Titan are the resultof agreements and/or concerted practices between the Italian producersItalcementi, Unicem and Cementir, and between them and the other participantsin the Cembureau Task Force, aimed at removing from the Greek producers animportant customer through which they could penetrate the Italian market. 601. The objections relating to the measures to defend the Italian market were thusexpressly raised, in particular, against Unicem, which the Commission accused ofhaving participated, first, in agreements and/or concerted practices with the otherItalian producers and, secondly, in agreements and/or concerted practices with theother members of the ETF. Unicem cannot therefore complain that the SO isimprecise as regards its participation in the infringements referred to inArticle 4(3)(a) and (b) of the contested decision. 602. Dyckerhoff, SFIC, Heidelberger, Lafarge, Aalborg, BDZ, Asland, Uniland and BlueCircle were all identified in the SO (first paragraph of point 61(h)) as parties to a'single plan established ... against the Greek producers, or, in other words, asparticipants in the 'Cembureau Task Force or European Task Force. They werethus in a position to understand, upon reading the SO, that the Commission wasraising against them, as it was against the other participants in the ETF, theobjection that pressure had been brought to bear on Calcestruzzi. They were thusable to defend themselves against the objection referred to in Article 4(3)(a) of thecontested decision concerning the concerted practices to cause Calcestruzzi to ceasebeing a customer of the Greek producers, and of Titan in particular. 603. Titan (T-64/95) submits that the SO did not state clearly whether it was one of theEuropean cement producers accused of having engaged in unlawful activitiesdirected against the Greek producers or was, rather, a victim of those unlawfulactivities. 604. The Court points out that the SO did not accuse Titan at all of having been partyto the agreement setting up the ETF (first paragraph of point 61(h)(i) of the SO)and to the measures to defend the Italian market (point 61(h)(iv) of the SO). 605. However, point 61(h)(v) of the 'Legal Assessment of the SO clearly states: 'All the contracts listed in point 20 [some of which concerned Titan] areagreements prohibited by Article 85(1). As may be seen in points 16 to 20, suchcontracts form part of the carrot actions adopted by the Cembureau Task Forcein order to deflect the Greek production surplus, and the clear condition governingthe conclusion of the contracts was that the Greek producers must cease theirdirect supplies in Europe. 606. On reading those parts of the SO, Titan was thus in a position to understand that,in the framework of the ETF, the Commission was accusing it of participating, byvirtue of the conclusion of the contracts affecting it, as listed in point 20 of the SO,in unlawful agreements with producers which were members of the ETF, inasmuchas, in exchange for concluding those contracts, it undertook to cease its directsupplies in Europe. It follows that Titan's argument must be rejected. 607. Nor can Blue Circle claim that the SO does not set out sufficiently clearly that itparticipated in the carrot actions referred to in Article 4(4)(a) and (a) of thecontested decision. The agreements mentioned in point 20(a) in 'The Facts of theSO relate to a concerted practice between the various UK producers, referred toin Article 4(4)(a) of the contested decision, and to the agreement between BlueCircle and Titan, referred to in Article 4(4)(b) of that decision. 608. The Court points out that, in point 61(h)(v) of the 'Legal Assessment of the SO,the Commission takes the view that: 'All the contracts listed in point 20 are agreements prohibited by Article 85(1). Asmay be seen in points 16 to 20, such contracts form part of the carrot actionsadopted by the Cembureau Task Force in order to deflect the Greek productionsurplus, and the clear condition governing the conclusion of the contracts was thatthe Greek producers must cease their direct supplies in Europe. 609. Blue Circle was thus in a position to understand that, in the framework of the ETF,the Commission was accusing it of participating in the carrot actions referred to inArticle 4(4)(a) and (b) of the contested decision. 610. Unicem argues that its rights of defence were infringed because the SO made nomention of the date on which the infringements relating to the ETF ended. 611. It adds that the SO did not even mention a date marking the beginning of theinfringements relating to the setting-up of Interciment (contested decision,Article 4(2)) and the measures to defend the Italian market (contested decision,Article 4(3)(a) and (b)). 612. It further argues that its rights of defence were infringed inasmuch as the contesteddecision alleged that it participated in Interciment until 26 March 1993, the dateon which Intercimenti was wound up, that is to say, a date subsequent to thedispatch of the SO. 613. The Court points out that, in the SO (point 61(h)), Unicem was accused of havingparticipated in 'agreements and ... practices entered into within the CembureauTask Force or European Task Force from 1986 onwards. Unicem was thereforeable to defend itself properly against the objections relating to its participation inthe setting-up of Interciment (contested decision, Article 4(2)) and to the measuresto defend the Italian market (contested decision, Article 4(3)(a) and (b)) as fromthe beginning of 1986. 614. Its arguments that its rights of defence were infringed because the SO did notindicate the date marking the end of the various infringements referred to inArticle 4 of the contested decision, and that the Commission held the infringementreferred to in Article 4(2) to have ended on a date after that on which the SO wassent, must be rejected for the reasons set out in paragraph 576 above. 5. Precision of the SO as regards the applicants' participation in the concertedpractices in the framework of the export committees referred to in Articles 5 and6 of the contested decision, and as regards the duration of those infringements 615. ENCI (T-31/95), Dyckerhoff (T-35/95), SFIC (T-36/95), Aalborg (T-44/95), BDZ(T-48/95) and Unicem (T-50/95) claim that the SO did not allege that they hadparticipated in concerted practices in the framework of the ECEC. They weretherefore unable to defend themselves against the objection referred to in Article 5of the contested decision. 616. That argument must be rejected: in point 66 in the 'Legal Assessment of the SO,entitled 'The agreements and practices within the ECEC, the 'ECMEC and ... themembers of the ECEC were expressly held liable for 'the agreement on thesetting-up of the ECEC and the agreements and/or concerted practices on exportsto third countries (fifth paragraph of point 66). ENCI, Dyckerhoff, SFIC, Aalborg,BDZ and Unicem were named in the SO (point 25) as members of the ECEC. 617. ENCI states, however, that in the SO which it received the Commission merelystated that the agreements and/or concerted practices within the ECEC constitutedan infringement of Article 85(1) of the Treaty by the ECMEC and its members.ENCI claims it was never a member of the ECMEC. It submits that, in reply to arequest for details concerning the objections raised specifically against it in the SO,the Commission expressly stated that ENCI would be held responsible only forthose objections in respect of which it had been specifically named (letter of 12February 1992, annex 15 to the application). Likewise, in the application for interimrelief (Case T-14/92 R, cited above), the Commission confirmed that ENCI hadbeen held responsible only for objections in respect of which it had beenspecifically named in the SO (Commission's defence in Case T-14/92 R, paragraph24, annex 17 to the application). ENCI adds that, during the hearings, it stated onseveral occasions that it had based its case on the belief that it was held responsibleonly for those objections in respect of which it had been specifically named. Atthose hearings, none of the Commission's representatives had indicated to it thatit had misunderstood the SO and the Commission's comments in that regard. 618. That argument must be rejected for the reasons set out in paragraphs 530 to 534above. 619. ENCI also claims that it is practically impossible to identify the specific accusationscontained in the SO or the person against whom they are levelled. The contesteddecision is also similarly imprecise. 620. That argument must also be rejected. For the reasons set out in paragraphs 528 to536 above, ENCI must be deemed to have been able to understand, upon readingthe SO, that the Commission was accusing it of participating in the Cembureauagreement and in the agreements and concerted practices in the framework of theECEC. Likewise, the contested decision specifically names ENCI in the context ofthose two infringements (participation in the Cembureau agreement, contesteddecision, recital 45, paragraph 10; recital 65, paragraphs 3 and 9; and Article 1);participation in the ECEC (contested decision, recital 31, paragraph 3; recital 58,paragraphs 3 and 7; and Article 5)). 621. Unicem maintains that its rights of defence were infringed inasmuch as the SO didnot indicate the date marking the end of the infringement relating to theagreements and concerted practices within the ECEC. 622. That argument must be rejected for the reasons set out in paragraph 576 above. 623. As regards the concerted practice in the framework of the EPC, referred to inArticle 6 of the contested decision, Valenciana (T-52/95) and Blue Circle (T-88/95)claim that the imprecise nature of the SO prevented them from realising that theywere alleged to have participated in that practice. 624. The Court points out that point 67 of the SO, in the 'Legal Assessment of theactivities of the EPC, finds that the members of the EPC infringed Article 85(1) ofthe Treaty by setting up the EPC and by participating in agreements and/orconcerted practices concerning cooperation on exports to third countries. 625. Since Valenciana and Blue Circle were specifically named as members of the EPCin point 27 of 'The Facts of the SO, they cannot complain that the SO isimprecise as regards the objection that they participated in the infringementreferred to in Article 6 of the contested decision. 626. It is apparent from all the foregoing that the arguments alleging that the SO isimprecise must be rejected, except in so far as concerns CBR, ENCI, Vicat, Rugby,Asland, Castle and Uniland, whose rights of defence have been infringed becausethe SO did not allow them to realise that the Commission was going to take a dateprior to the date of 'their measure implementing the Cembureau agreement asthe starting date of their participation in the infringement referred to in Article 1of the contested decision (see paragraphs 566 to 568 above).                                                                     The seventh plea: infringements of the rights of the defence and of Article 3 ofRegulation No 1 resulting from the failure to translate certain documents 627. CBR (T-25/95), ENCI (T-31/95), la VNC (T-32/95), Dyckerhoff (T-35/95),Heidelberger (T-42/95), Aalborg (T-44/95), Unicem (T-50/95), Valenciana(T-52/95), Castle (T-56/95), Heracles (T-57/95), Uniland (T-58/95), Oficemen(T-59/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL (T-62/95), ATIC(T-63/95), Holderbank (T-68/95), Hornos Ibéricos (T-69/95), Aker (T-70/95) andEUROC (T-71/95) consider that the Commission infringed Article 3 of RegulationNo 1 and their rights of defence by failing to provide them, during theadministrative procedure, with a translation of certain documents in the languageof the Member State in which they were established. 628. Dyckerhoff, Heidelberger, Valenciana, Castle, Uniland, SECIL, Hornos Ibéricos,Aker and EUROC complain that the Commission failed to provide them with atranslation of certain items of evidence relied upon in the SO. CBR, Dyckerhoff,Heidelberger, Aalborg, Valenciana, Castle, Oficemen, Irish Cement, Cimpor, Akerand EUROC complain that the Commission did not translate into the language ofthe Member State in which they were established, certain passages of the SO, inparticular excerpts from the documents cited in it. Dyckerhoff, Aalborg,Valenciana, Oficemen, Cimpor and SECIL also complain of the failure to translatethe minutes of the hearings. 629. Article 3 of Regulation No 1 provides: 'Documents which an institution of the Community sends to a Member State orto a person subject to the jurisdiction of a Member State shall be drafted in thelanguage of such State. 630. The language rules laid down in Article 3(1) apply only to documents sent by theinstitutions to specific addressees (Tréfilunion v Commission, cited at paragraph 223above, paragraph 21). 631. The Commission is not required to provide a translation of annexes to the SO(Tréfilunion v Commission, cited at paragraph 223 above, paragraph 21). Thedocuments in question are not 'documents within the meaning of Article 3 ofRegulation No 1: they do not emanate from the Commission, but are evidence onwhich the Commission relies. 632. Consequently, the argument that the Commission infringed Article 3 of RegulationNo 1 by not providing the addressees of the SO with a translation of the supportingevidence must be rejected. 633. Nor can the documents which the Commission quotes verbatim in the SO insupport of its objections be regarded as emanating from it, even though the SO isa Commission 'document within the meaning of Article 3 of Regulation No 1(Tréfilunion v Commission, cited at paragraph 223 above, paragraph 21). Thepassages from those documents cited in the SO do not emanate from theCommission but from cement producers or their trade associations. Moreover, anytranslation which the Commission might possibly make of a document emanatingfrom an undertaking or an association of undertakings could never be regarded asan authentic version constituting good evidence. 634. Nor, therefore, can the fact that the SO contains various untranslated quotationsfrom documents emanating from undertakings and associations of undertakings beconsidered to infringe Article 3 of Regulation No 1. 635. It should be added that, in order to assess the evidential value of the evidencerelied upon by the Commission in support of its SO and, therefore, in order toprepare a defence against a SO, access must be given to the evidence itself ratherthan to a non-official translation of it. The observance of the rights of the defencetherefore requires that addressees of the SO should have access during theadministrative procedure to all the incriminating documents in their originalversions (see also paragraph 323, 324 and 364 above). That principle does nothowever require the Commission to translate documents cited in the SO or usedin support of it into the language of the Member State where the addressees of theSO are established. It follows that the Court must reject the argument of theapplicants specified in paragraph 627 above, alleging that their rights of defencewere infringed by the Commission's failure to provide a translation of someevidence cited in the SO or used in support of the SO. 636. As regards the failure to translate the minutes of the hearings, the Court points outthat under Article 9(4) of Regulation No 99/63 the essential content of thestatements made by each person heard is to be recorded in minutes which are tobe read and approved by him. The only purpose of the minutes of hearings is toproduce a written record of the oral submissions of the various parties in thelanguage used by them to enable those parties to check that their own statementshave been recorded correctly (see, to that effect, Case 48/69 ICI v Commission[1972] ECR 619, hereinafter 'Case 48/69 ICI v Commission, paragraph 29). Theyare not therefore documents within the meaning of Article 3 of Regulation No 1that emanate from the Commission. In those circumstances, the Court must rejectthe argument put forward by Dyckerhoff, Aalborg, Valenciana, Oficemen, Cimporand SECIL to the effect that the Commission infringed Article 3 of Regulation No1 by failing to provide a translation of the minutes of the hearings. Furthermore,at the hearings the applicants concerned were able to hear a simultaneousinterpretation of the various statements made. They cannot therefore complain thattheir rights of defence were infringed. 637. Aalborg submits that, where the Commission translates a passage from a documentin the SO, it must make available to the addressees of the SO a translation of thewhole document in order to allow the context of the extract to be fully understood.It refers in this connection to the statement made in Greek by Mr Kalogeropoulosat the Heracles board meeting held on 25 June 1986 (documents 33.126/19875 to19877; see paragraph 816 below), part of which is set out in point 9 of the SO,translated into Danish, the language of the Member State in which the applicant,an addressee of the SO, is established. The rest of the document exists in Greekonly. 638. That argument must be rejected. Since the Commission is not obliged to preparetranslations of documents which it cites in the SO, it cannot be required to translatethe entire document, of which, on its own initiative and without obligation to do so,it has translated a passage into the language of the Member State in which theaddressee of the SO is established. 639. Heracles considers that the Commission should have translated its reply to the SOand its statements at the hearings in March 1993 into a language other than Greek.By failing to do so, the Commission prevented Heracles from making known itsdefence satisfactorily to the Members of the Commission. For the same reasons,consultation of the Advisory Committee was not satisfactory. 640. That argument must be rejected. Heracles has failed to prove, by reference to thecontent of the contested decision, that it has not been correctly understood. In anyevent, the Commission is a multilingual institution which must be deemed capableof understanding documents submitted to it in an official language of theCommunity. Moreover, there is no evidence to suggest that the Advisory Committee was unable to deliver its opinion on the questions before it in fullknowledge of the facts. 641. Cimpor, SECIL and ATIC complain that the List (see paragraph 5 above) was notdrawn up in Portuguese and was sent to them in French. They claim that thisprocedural document was fundamental to the exercise of their rights of defence.Cimpor and SECIL also claim that the Commission's letter of 17 February 1992,which extended the time-limit for replying to the SO until 23 March 1992 or until27 March 1992 for those addressees of the SO which had undertaken to lodge 20copies of the reply, was also in French. SECIL adds that the invitation to thehearings, dated 5 February 1993, was not in Portuguese either. Dyckerhoffcomplains that the Commission sent it the list in French rather than in German. 642. The Court finds that there was an infringement of Article 3 of Regulation No 1 sofar as concerns those documents. They emanate from the Commission and shouldhave been drawn up in the language of the Member State in which the addresseeof the SO was established. 643. However, where an institution sends a person within the jurisdiction of a MemberState a document which is not drawn up in the language of that State, theirregularity, however regrettable, vitiates the procedure only if it gives rise toharmful consequences for that person in the administrative procedure (Case 41/69Chemiefarma v Commission [1970] ECR 661, paragraph 52; Case T-77/92 ParkerPen v Commission [1994] ECR II-549, paragraph 74). 644. That is clearly not the case here. The List (see paragraph 5 above), sent in Frenchto Cimpor, SECIL and ATIC, all of which are legal persons governed byPortuguese law, and to Dykerhoff, a company governed by German law, containeda consecutive numbering system for the documents, an indication of the nature ofthose documents, classification of documents as 'accessible, 'partly accessibleand 'non-accessible, and an indication of the loose-leaf binder in which thedocuments in question were kept (see paragraph 96 above). The applicantsconcerned do not deny having had access to all the documents described as'accessible in the List. Consequently, the fact that the List was in French did notprevent them from gaining access to the documents in the investigation file underthe conditions set out in the List. Nor did the fact that the letter extending thetime-limit for replying to the SO was not in Portuguese prevent Cimpor and SECILfrom benefitting from an extension of the time-limit. Cimpor sent the Commissionits reply to the SO on 24 March 1992 (annex 29 to the application). By letter of 20February 1992, SECIL acknowledged receipt of the Commission's letter of 17February 1992, noting that the Commission had extended the time-limit until 27March 1992 (annex 12 to the application). Finally, the fact that the invitation to thehearings sent to SECIL was not in Portuguese did not prevent it from attendingthose hearings. 645. Accordingly, failing any harmful consequences during the administrative procedure,the argument relating to those documents cannot be upheld. For the same reasons,the argument alleging infringement of the rights of the defence must be rejected. 646. It follows from all the foregoing that the seventh plea must be rejected in itsentirety. The eighth plea: infringement of the rights of the defence resulting from mistranslationand misquotation of certain documents 647. Castle (T-56/95), Aker (T-70/95) and EUROC (T-71/95) submit that theCommission infringed their rights by mistranslating or misquoting certaindocuments in the SO. 648. In the first place, the statement by the chairman of Heracles on 25 June 1986 (SO,point 9; contested decision, recital 18, paragraph 5; documents 33.126/19875 to19877) and the handwritten Italcementi note, on the Executive Committee meetingheld on 14 April 1986 (SO, point 7, in fine; contested decision, recital 17, paragraph9; document 33.126/3185), were not translated correctly. In particular, the statementof the chairman of Heracles, in its original version and contrary to theCommission's translation, does not refer to 'negotiations or to the 'UnitedKingdom cartel. So far as concerns Italcementi's note, the English version of theSO translated the extract 'trovare delle regole del gioco tra di noi per evitareconcorrenza non corretta as 'rules must be established between us to preventimproper competition. However, the proper translation is 'to find rules of thegame between us to prevent improper competition. 649. It is common ground that the two documents at issue were in the Box (seeparagraph 95 above). Castle, Aker and EUROC thus had the original versionsavailable at the stage of the administrative procedure. There was therefore nothingto prevent them from drawing the Commission's attention, at that early stage, toany mistranslations in the SO. In those circumstances, there is no question of theirrights of defence having been infringed. 650. Second, Castle, Aker and EUROC claim that on page 44 of the English version ofthe SO (point 18) the Commission alleges, in relation to subscription toInterciment's capital, that at the Head Delegates meeting on 6 November 1986 'itwas agreed that non-EEC-based companies would take up their shareholding forthe present, whereas the documents from which the Commission took thatquotation, documents 33.126/19007 and 19008, stated that 'no EEC-based companywould take up their shareholding for the present. 651. The Court points out that documents 33.126/19007 and 19008 were in the Box (seeparagraph 95 above). The applicants thus had the original versions of the abovementioned documents at their disposal during the administrative procedure,which should have enabled them to note the misquotation by the time theadministrative procedure was under way and to put forward their arguments in thatrespect already at that stage. In any case, the misquotation was corrected in thecontested decision. At recital 26, paragraph 10, of the contested decision, theCommission, referring to the two documents in question, observes that at the HeadDelegates meeting in Brussels of 6 November 1986 it was decided that 'noCommunity company would subscribe to the capital of Interciment. The applicantsclaim that it was after their statements at the hearings (application in Case T-56/95,point 5.5.3, and applications in Cases T-70/95 and T-71/95, point 4.5.3) that theCommission was forced to concede that it had made a mistake. The argument putforward by Castle, Aker and EUROC that their rights of defence were infringedmust clearly be rejected, since it was precisely the effective exercise of their rightsof defence which led the Commission to correct the mistake made in the SO (seeJoined Cases 40/73 to 48/73, 50/73, 54/73, 55/73, 56/73, 111/73, 113/73 and 114/73Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 94 to 99, andCase T-228 Irish Sugar Plc v Commission [1999] ECR II-0000, paragraph 34). The ninth plea: infringements of the rights of the defence and of Article 11(1) ofRegulation No 99/63 as a result of the inadequate period for replying to the SO 652. Dyckerhoff (T-35/95), Heidelberger (T-42/95), Buzzi (T-51/95) and SECIL(T-62/95) submit that the Commission infringed their rights of defence andArticle 11(1) of Regulation No 99/63 in setting an inadequate period in which toprepare their reply to the SO. They observe that an initial period of two monthshad been set for their reply and that, shortly before its expiry, it had been extendedby one month and then again by one month. They claim that they would haveprepared their reply to the SO much more thoroughly if a period of four monthshad been set from the start. Heidelberger and Buzzi add that they were forced todraw up the reply to the SO under the constant pressure of the time-limits withoutever being able to count on an extension of those time-limits when working on it.Heidelberger further submits that it refrained from translating several documentsbecause it did not have sufficient time to assess the document in question beforethe expiry of the time-limit. 653. The Court points out that Article 11(1) of Regulation No 99/63, which is intendedto ensure that an addressee of an SO has a sufficient period for the effectiveexercise of its rights of defence, provides that in fixing that period, which is to beat least two weeks, the Commission is to have regard both to the time required forpreparation of comments and to the urgency of the case. The period set must beassessed specifically in relation to the difficulty of the particular case (Suiker Unieand Others v Commission, cited in paragraph 651 above, paragraphs 94 to 99, andCase 27/76 United Brands v Commission [1978] ECR 207, paragraphs 272 and 273). 654. During the administrative procedure which led to the present proceedings, theaddressees of the SO were given an initial period of two months in which toprepare their reply. That period was extended on two occasions by one month,making a total period of four months, from the end of November 1991 to the endof March 1992. In view of all the particular circumstances of the cases in question,that period of four months was sufficient. As to the argument that only the initialtwo-month period was relevant to the assessment of the present plea, the Courtheld (paragraphs 94 to 99 of the judgment) in Suiker Unie v Commission (cited inparagraph 651 above), which was also a complex case, that a period of two monthswas reasonable. Moreover, as the Commission points out, the period initiallygranted was not as excessively short as the applicants concerned argue, if it iscompared with the two-month period provided for in the fifth paragraph ofArticle 173 of the Treaty for bringing an action for annulment. Finally, even thoughthe applicants concerned prepared a reply to the SO on the assumption that theyhad a period of only two months, they ultimately enjoyed, after extensions, twoadditional months in which to amend and elaborate their replies. 655. Heidelberger's argument that it allegedly dispensed with translations of severaldocuments must also be dismissed. Since it does not identify the documents drawnup in a language other than German which could have been useful in its defence,it has not shown how its rights of defence were affected by the setting of the time-limit for replying to the SO. 656. It follows that the ninth plea must be rejected. The 10th plea: infringements of the rights of the defence, of Article 19(1) of RegulationNo 17 and of Article 7(1), Article 8(1) and Article 9 of Regulation No 99/63 resultingfrom the defective organisation of the hearings A  Preliminary remarks 657. The hearings were held from 1 March to 1 April 1993. All the addressees of theSO were invited to take part in a 'plenary hearing on 1 and 2 March 1993 whichdealt specifically with the cement market. Hearings were held from 3 to 18 March1993 on the international part of the SO. All the addressees of the SO which hadbeen sent that part of the SO were able to attend. All the applicants in the presentcases were thus invited to attend the hearings dealing with the cement market andwith the international part of the SO. The hearings organised from 22 March to 1April 1993 dealt with the various national chapters of the SO. Participation in thosehearings was restricted to the undertakings and associations of undertakings towhich the relevant national chapters of the SO had been addressed (see paragraphs12 and 94 above). 658. The present plea in law consists of three parts. The first part (B) allegesinfringement of the rights of the defence and of Article 19(1) of Regulation No 17and Article 7(1) of Regulation No 99/63. The second part (C) claims infringementof Article 8(1) of Regulation No 99/63, and the third (D), infringement of Article 9of Regulation No 99/63. B  The first part: infringement of the rights of the defence and of Article 19(1)of Regulation No 17 and Article 7(1) of Regulation No 99/63 659. ENCI (T-31/95), VNC (T-32/95), SFIC (T-36/95), Vicat (T-37/95), Ciments Français(T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95),Valenciana (T-52/95), Asland (T-55/95), Castle (T-56/95), Uniland (T-58/95),Oficemen (T-59/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL (T-62/95),ATIC (T-63/95), Aker (T-70/95) and EUROC (T-71/95) consider that theorganisation of the hearings during the administrative procedure infringed theirrights of defence. Lafarge and Valenciana also submit that the Commission'sconduct was contrary to Article 19(1) of Regulation No 17. Valenciana, Oficemen,Aker and EUROC claim that Article 7(1) of Regulation No 99/63 was alsoinfringed. 660. Article 19(1) of Regulation No 17 provides that the Commission must give theundertakings or associations of undertakings involved in a proceeding pursuant toArticle 85(1) and/or Article 86 of the Treaty the opportunity of being heard on thematters to which the Commission has taken objection. Under Article 7(1) ofRegulation No 99/63, it is required to afford 'to persons who have so requested intheir written comments the opportunity to put forward their arguments orally, ifthose persons show a sufficient interest or if the Commission proposes to imposeon them a fine or periodic penalty payment. Those two provisions enshrine thefundamental principle of Community law that the rights of the defence must beobserved in all proceedings which are liable to culminate in a penalty. Accordingly,the arguments of the applicants claiming, first, infringement of the rights of thedefence and, second, infringement of Article 19(1) of Regulation No 17 andArticle 7(1) of Regulation No 99/63 are indissociable and must be analysedtogether. 661. The arguments of the applicants concerned may be grouped into four categories.They will be examined below. It is appropriate to assess (1) the argumentconcerning the unilateral imposition by the Hearing Officer of a programme for theconduct of the hearings. Next the Court will examine the alleged irregularitiescommitted (2) during the hearings concerning the international objections and (3)during the hearings concerning the national objections. Finally (4), otherirregularities allegedly committed during the hearings will be examined. 1. The Hearing Officer's programme for the hearings 662. SFIC, Heidelberger, Lafarge, Valenciana and Castle criticise the fact that thehearings were organised according to a programme imposed unilaterally by theHearing Officer. In their view, the Commission's approach prevented them fromfreely organising their defence. 663. That argument must be rejected. The hearings were organised following the orderin which the various objections are set forth in the SO. Observing that order makesit easier, in principle, for interested parties to prepare their defence. In any event,the mere fact that the Commission imposes a programme for the hearings does notof itself constitute an infringement of the rights of the defence. There can be suchan infringement only where the applicants concerned prove that the organisationof the hearings prevented them from attending the hearings relating to theobjections raised against them or from putting forward orally their argumentsagainst such objections. It is those questions which will be examined at paragraphs664 to 701 below. 2. Alleged irregularities during the hearings concerning the internationalobjections 664. Ciments Français, Heidelberger, Lafarge, Asland, Uniland, Aker and EUROCsubmit that they did not have an opportunity to comment orally on the Cembureauagreement, despite the fact that they were held to have committed thatinfringement in Article 1 of the contested decision. Aker and EUROC add that theonly part of the hearings at which they were invited to put forward theirobservations was that on 11 and 12 March 1993 concerning the ETF. 665. The applicants referred to in the preceding paragraph were able to attend thehearings relating to the chapters of the SO sent to them. They were therefore allable to attend the hearings on the international agreements and concertedpractices. However, only Cembureau and the undertakings and associations ofundertakings which were considered in the SO to be direct members of Cembureauwere able to make oral submissions during the hearings held from 3 to 5 March1993, which dealt in particular with the conclusion of the Cembureau agreement.During the hearings held from 5 to 18 March 1993, Ciments Français,Heidelberger, Lafarge, Asland, Uniland, which are not direct members ofCembureau, and Aker and EUROC which, in the SO, were not considered to bedirect members of Cembureau (see paragraph 516 above), were thus allowed topresent oral argument only in the hearings dealing with the various measuresimplementing the Cembureau agreement in which they were alleged to haveparticipated. 666. The Court points out that, as presented in the SO, the undertakings which were notdirect members of Cembureau were considered to have acceded to the Cembureauagreement by virtue of their participation in 'measures implementing theagreement which had been adopted by Cembureau and its members (seeparagraphs 511 to 542 above). In the hearings on the measures to implement theCembureau agreement in which they were alleged to have participated, CimentsFrançais, Heidelberger, Lafarge, Asland, Uniland, Aker and EUROC were thusable to comment orally not only on the truth of the facts alleged but also on thealleged link between those facts and the Cembureau agreement. Nor, at thehearings relating to the measures implementing the Cembureau agreement, wasthere anything to prevent them from submitting arguments challenging the veryexistence of that agreement. Their contention that they were unable to commentorally on the Cembureau agreement or on their participation in it is thus factuallyincorrect and must be rejected. 667. Heidelberger claims that it was misled by the programme for the hearings. Sinceit was not granted the right to present oral argument on its alleged participationin the Cembureau agreement and in various measures to implement thatagreement, it concluded that those objections did not concern it. 668. For the reasons set out in paragraphs 516 to 542 above, it must be held thatHeidelberger was able to understand, on reading the SO, that the Commission wasaccusing it of participating in the Cembureau agreement. Moreover, the allegationthat Heidelberger had participated in the Franco-German agreement and inmeasures adopted in the framework of the ETF was set out sufficiently clearly inthe SO (see paragraphs 591 to 602 above) and they were the only implementingmeasures alleged against it in the contested decision. The programme for thehearings which reached it about one year after its reply to the SO was lodged, areply which dealt with all those objections, cannot therefore have misled it in anyway as to the objections alleged against it. In any event, Heidelberger could havecommented orally on 8 March 1993, regarding its alleged participation in theFranco-German agreement, and on 11 and 12 March 1993 regarding its allegedparticipation in measures taken in the ETF. At those hearings, it could havedeveloped its arguments relating to the existence of the Cembureau agreement andits participation in it. Its argument must therefore be rejected. 669. Heidelberger also complains that it was not granted the right to speak at theplenary session of 1 and 2 March 1993  a session which it does not deny havingattended  which dealt with the cement market. 670. That argument also must be rejected. There was nothing to prevent Heidelbergerfrom challenging the Commission's analysis of the cement market in Chapter 1 ofthe SO during the hearings at which it was allowed to submit observations, inparticular, at those of 8, 11 and 12 March 1993. 671. Heidelberger submits finally that, since, according to the contested decision, theCommission considered the various bilateral and multilateral actions to constitutea single and continuous agreement, it too should have had an opportunity toexpress its views during the hearings on all the alleged measures implementing thatagreement. 672. However, the Court points out that the Commission never took the view thatHeidelberger participated in all the constitutive elements of the single andcontinuous Cembureau agreement. According to the contested decision, theapplicant participated in only two measures implementing the Cembureauagreement, namely the Franco-German agreements and concerted practices(contested decision, Article 3(3)(a)) and the ETF (contested decision, Article 4(1)to (3)(a)). It is not disputed that Heidelberger could have expressed its viewsduring the hearings of 8, 11 and 12 March 1993 on those measures to implementthe Cembureau agreement. The fact that it could not make oral submissions onobjections not raised against it could not have been detrimental to its defence. 673. Lafarge further claims that it had insufficient time to cover the international partof the file during the hearings. There is an obvious discrepancy between the timeallocated to it at the hearings and the overall liability ultimately attributed to it inthe contested decision. 674. The Court notes that the speaking time allotted to the various undertakings andassociations of undertakings at the hearings depended on the number of objectionsraised against them in the SO. Lafarge was allotted 30 minutes' speaking time inrespect of each of the measures implementing the Cembureau agreement withwhich it was charged in the contested decision. In those circumstances, it cannotrely on the argument that there was a discrepancy between the time it was allottedat the hearings and the overall liability ultimately attributed to it. Nor does itadduce any specific evidence to show that the speaking time allotted wasinsufficient. It has not proved that the alleged lack of speaking time prevented itfrom formulating or developing an argument which might have led to a differentoutcome to the administrative procedure. Lafarge's argument cannot therefore beupheld. 3. Alleged irregularities at the hearings concerning the national objections 675. SFIC, Vicat, Ciments Français, Lafarge, Valenciana, Castle, Uniland, Oficemen,ATIC, Aker and EUROC complain that they were not able to attend the hearingson the national agreements and concerted practices in the other Member Statesconcerned. 676. It is common ground that participation in the hearings on the national agreementsand concerted practices was restricted. It was restricted to the undertakings and the association of the Member State in question and thus to the undertakings and theassociation to which the relevant national chapters of the SO had been sent. 677. None the less, the fact that applicants were not able to attend hearings concerningnational agreements and concerted practices other than those in the Member Stateon whose territory they were established could not have been detrimental to theirdefence. It should be borne in mind that, notwithstanding the fact that point 93(b)of the SO states that the national agreements and concerted practices and theinternational agreements and concerted practices formed an inseparable whole, theCembureau agreement and its implementing measures at international level do notdepend at all on the existence of the national agreements and concerted practices(see paragraphs 110 to 120 above). Furthermore, the national objections were notreproduced in the contested decision and the applicants concerned have not shownthat the contested decision is based on information obtained in the course of thehearings relating to the national agreements and concerted practices. 678. In those circumstances, the argument put forward by the above 11 applicants mustbe rejected. 679. Heidelberger complains that, during the hearings on the national agreements andconcerted practices, the undertakings and associations of undertakings concernedwere not allowed to express their views on the international agreements andconcerted practices. Uniland alleges that the Commission did not allow it to expressa view on the international objections during the hearing on the Spanish market. 680. The Court points out that during the hearings on the international agreementsHeidelberger was able to make oral submissions on all the infringements of whichit is accused in the contested decision (see paragraph 668 above). According to thecontested decision, Uniland participated in the infringement constituted by theCembureau agreement (Article 1) and in infringements in the framework of theETF (Article 4(1) to (3)(a)). It had an opportunity to express its views on thoseobjections during the hearings relating to the ETF on 11 and 12 March 1993. Inthose circumstances, the fact that the applicants concerned were not able to expressa view on the international objections during the hearings dealing with the nationalmarkets could not have been detrimental to their defence. 681. Lafarge complains that it had to be satisfied with 70 minutes' speaking time inmaking its submissions on the French agreements and concerted practices. Itsargument is irrelevant, since the objection relating to the French agreements andconcerted practices was not upheld in the contested decision. 4. Other irregularities during the hearings 682. Irish Cement, Cimpor, SECIL and ATIC claim that they should have been givenan opportunity to participate in all the hearings. In their view, the right to be heardimplies a right to hear the cases of others. However, in the absence of any evidencethat in the contested decision the Commission relied on information obtained in thecourse of hearings in which those parties were not able to participate, and in theabsence of any evidence to show that evidence exculpating those applicants mighthave been disclosed at those hearings, that argument must be rejected. 683. SFIC submits that the Commission relied on 'self-incriminating replies givenduring the hearings in order to find that there had been an infringement involvingexchanges of information between SFIC and BDZ (contested decision,Article 3(3)(b)). In actual fact, the recital of the contested decision to which SFICrefers (recital 22, paragraph 18) mentions explanations put forward during thehearings by BDZ, rather than by SFIC. There is therefore no question of 'self-incriminating statements made by SFIC. Nor did the Commission base theinfringement referred to in Article 3(3)(b) of the contested decision on thestatements made by BDZ during the hearings. After alluding to BDZ's repliesduring the hearings, it states (contested decision, recital 22, paragraph 18):'Despite the arguments produced in writing and orally by BDZ, the Commissionhas been unable to find any valid explanation for the allocation of imports to thevarious Länder. It goes on to explain (contested decision, recital 22, paragraph 18,fifth and sixth subparagraphs) why the arguments put forward by BDZ should berejected. Therefore, far from basing the infringement in Article 3(3)(b) of thecontested decision on information divulged by BDZ during the hearings, theCommission, in the passage in question of the contested decision, merely stated thereasons why it rejected the explanations proffered at the hearings by BDZconcerning the exchanges of statistics between SFIC and BDZ. SFIC's argumentcannot therefore be upheld. 684. ENCI and VNC complain that the Commission was not impartial in the attitudeadopted to them during the hearing of 8 March 1993 when it refused to take intoconsideration the arguments they had put forward. They refer in this respect to astatement made by Mr Guerrin at the hearing. 685. The Court points out that at that hearing Mr Guerrin stated as follows: '... theCommission ... is not able to follow a certain number of observations made [by theparticipants at the hearing]. However, although the Commission is required to givethe addressees of an SO an opportunity to express a view and to defend themselveswith regard to the objections raised against them, it is not obliged to accept all thearguments put forward. Accordingly, neither ENCI nor VNC can claim that theirrights of defence were infringed by Mr Guerrin's statement. 686. Lafarge submits that at the hearings it was not allowed to explain its competitivestrategy otherwise than in regard to the objections raised against it, even though ithad expressly requested permission to do so. 687. The Court points out that Lafarge was free to organise as it wished the speakingtime allotted to it. It follows that the argument examined must also be rejected. 688. Finally, Aker and EUROC complain that at the hearings they and Castle, theirUnited Kingdom subsidiary, were not treated by the Commission as separateentities. 689. That complaint, which neither Aker nor EUROC use as the basis for any legal orfactual submissions, must be rejected. 690. It follows from all the foregoing that the first part of the 10th plea must berejected. C  Second part: infringement of Article 8(1) of Regulation No 99/63 691. Valenciana (T-52/95) claims that the Commission infringed Article 8(1) ofRegulation No 99/63 by allowing it insufficient time to prepare for the hearings. 692. Article 8(1) of Regulation No 99/63 provides that 'the Commission shall summonthe persons to be heard to attend on such date as it shall appoint but does notgive any guidance as to time-limits. 693. It is common ground that Valenciana was invited by letter of 5 February 1993(annex 12 to the application) to attend the hearings held from 1 March 1993. TheCommission does not deny that the applicant received that letter on 6 February1993. Valenciana thus had a period of 22 days between the summons and the dateof the hearing. 694. Valenciana has adduced no evidence that the period of 22 days was not sufficientto prepare for the hearings. Moreover, as is apparent from its reply of 11December 1997 to a written question put by the Court of First Instance, it did noteven request the Commission, before the hearings, to postpone them on the groundthat it did not have sufficient time to prepare its oral presentation. 695. It follows that the second part of the 10th plea must be rejected. D  Third part: infringement of Article 9 of Regulation No 99/63 696. Lafarge (T-43/95) submits that the Commission infringed Article 9(3) of RegulationNo 99/63 by refusing it the right to be heard separately on the objections relatingto the Franco-German market. Aalborg (T-44/95) complains that, contrary to thesame provision, the Commission did not allow it a separate hearing. 697. Those arguments must be rejected on the ground that they lack precision. Theapplicants do not explain in what way their rights of defence were infringed by thefailure to grant them a separate hearing. In any event, under Article 9(3) ofRegulation No 99/63, the Commission is free to hear persons separately or in thepresence of other persons invited to attend (Opinion of Advocate General Darmonin Woodpulp II, cited above at paragraph 106, at I-1445, paragraph 155). 698. Lafarge also complains that the documents relating to the ETF which it had lodgedat the hearings were not appended to the minutes of the hearing. 699. Article 9(4) of Regulation No 99/63 provides that 'the essential content of thestatements made by each person heard shall be recorded in minutes. SinceLafarge has not identified the documents which should have been appended to theminutes or explained why those documents should have been treated in the sameway as the essential content of statements within the meaning of theaforementioned provision, its argument must be rejected. 700. It follows that the third part of the 10th plea must also be rejected. 701. It follows from all the foregoing that the whole of the 10th plea must be rejected. The 11th plea: breach of the principle of ex officio investigation 702. Dyckerhoff (T-35/95) maintains that the contested decision fails to observe theprinciple that the Commission is under an obligation to investigate ex officio. First,the Commission failed to examine the question of Greek State aid, despite the factthat it was the only reason which led Dyckerhoff to participate in the Europeancement producers' meetings that were considered in the contested decision. Second,it did not properly examine the files on the discussions on the basing point system,despite the fact, that in the applicant's view, those files contain the explanation forthe Head Delegates meeting on 14 January 1983. It did not therefore fulfil itsobligation to examine all the relevant evidence carefully and impartially. 703. The submission relating to Greek State aid must be rejected. The Commission tookinto consideration the aid granted by the Greek State to its cement industry in the1980s, as is shown in recital 24, paragraph 2, the footnote 115 and, generally, inrecital 25 of the contested decision. In recital 53, paragraph 8, of the contesteddecision, the Commission sets out in detail the reasons which led it to reject thesubmissions made by some undertakings in the course of the administrativeproceedings that 'Article 85(1) was not applicable to the members of the ETFbecause they were acting in legitimate self-defence against exports by the Greekproducers, who were receiving unlawful aid from the government of their country.For the rest, that applicant's submissions will be assessed on their merits atparagraphs 2552 to 2561 below. 704. The other submission, concerning the basing-point system, must be rejected for thereasons set out in paragraphs 414 and 415 above. 705. It follows that the 11th plea must be rejected. The 12th plea: the rights of the defence were infringed by the excessive length of theadministrative procedure 706. Unicem (T-50/95) submits that its rights of defence were infringed because of theexcessive length of the administrative procedure. Part of the Commission'sobjections concerned conduct notified to the Commission on 16 July 1981. Evenwith regard to the most recent procedure, the period which elapsed between theinitial investigations (April 1989) and the adoption of the contested decision(November 1994) was too long. During that period Unicem claims that in manycases it can no longer recall events and has lost a considerable proportion of therelevant documents. In its reply, it further claims that the SO refers to facts whichgo back to July 1981, whereas the Commission did not carry out its initialinvestigations until April 1989. 707. The Court points out that it is a general principle of Community law that theCommission must act within a reasonable time in adopting decisions followingadministrative procedures relating to competition policy (SCK and FNK vCommission, cited in paragraph 485 above, paragraph 56). The question whetherthe duration of an administrative procedure is reasonable must be determined inrelation to the particular circumstances of each case and, in particular to itscontext, the various procedural stages followed by the Commission, the conduct ofthe parties in the course of the procedure, the complexity of the case and itsimportance for the various parties involved (SCK and FNK v Commission, cited inparagraph 485 above, paragraph 57). 708. In the present case, the notification sent to the Commission on 16 July 1981, towhich Unicem refers, concerns the Belgian-Netherlands basing-point system ofprice setting (contested decision, recital 17, paragraph 4), a system against whichno specific objection was raised either in the SO or in the contested decision. Itmust therefore be considered to be wholly outside the scope of the administrativeproceedings initiated by the Commission. Moreover, the fact that in the SO theCommission refers to events dating from 1981 is not relevant when assessingwhether the duration of the administrative proceedings, which did not commenceuntil April 1989, was reasonable. 709. The administrative procedure lasted five years and eight months, from the initialinvestigations in April 1989 to the adoption of the contested decision on 30November 1994. The duration of each of the stages of that procedure wasreasonable. The period of 31 months which elapsed between the investigations in April 1989 and dispatch of the SO in November 1991 was reasonable, taking intoaccount of the scope and the difficulties of an investigation into almost the wholeof the European cement industry. The period of nearly one year which thenelapsed between lodging of the replies to the SO in March 1992 and the hearings,which were held between 1 March and 1 April 1993, was also reasonable. It shouldbe pointed out that the various undertakings and associations of undertakingsbrought an action before the Court in March 1992 seeking annulment of theCommission's refusal to send the full text of the SO and of the investigation file onwhich the Court gave judgment on 18 December 1992 (see paragraphs 6 to 11above). The fact that it took the Commission 20 months after the end of thehearings to adopt the contested decision, on 30 November 1994, is not aninfringement of the principle that the duration of administrative proceedingsrelating to competition policy should be reasonable, since the decision had to besent to 42 undertakings and associations of undertakings, concerned 24 separateinfringements, and had to be drawn up in the nine official Community languages. 710. Unicem's argument that because of the lengthy duration of the administrativeproceedings, it could in many cases no longer recollect events and had lost aconsiderable proportion of the relevant documents must also be rejected. Thatargument is irrelevant so far as concerns the Head Delegates meetings in 1983 and1984 at which the Cembureau agreement was concluded and confirmed, sinceUnicem has always denied having attended those meetings (contested decision,recital 45, paragraph 13). The measures to implement the Cembureau agreementin which Unicem is alleged to have participated are infringements committed in theframework of the ETF (contested decision, Article 4) and in that of the ECEC(contested decision, Article 5). The events complained of with regard to theactivities of the ETF and the ECEC were still continuing at the time of theinvestigations in April 1989, so that Unicem should not have encountered anydifficulty in preparing its defence in that regard. 711. It follows that the 12th plea in law must be rejected. The 13th plea: infringement of Article 6 of the ECHR 712. Article 6 of the ECHR provides: '... everyone is entitled to a fair and public hearing within a reasonable time by anindependent and impartial tribunal established by law .... 713. Fundamental rights form an integral part of the general principles of law whoseobservance the Community judicature ensures (Case 11/70 InternationaleHandelsgesellschaft v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970]ECR 1125, paragraph 4, Case C-260/89 ERT v DEP [1991] ECR I-2925, paragraph41, and Bosman and Others, cited at paragraph 155 above, paragraph 79). For that purpose, the Community judicature draws inspiration from the constitutionaltraditions common to the Member States and from the guidelines supplied byinternational treaties for the protection of human rights on which the MemberStates have collaborated or of which they are signatories. The ECHR has specialsignificance in that respect (Case 222/84 Johnston v Chief Constable of the RoyalUlster Constabulary [1986] ECR 1651, paragraph 18, Case C-299/95 Kremzow vRepublik Österreich [1997] ECR I-2629, paragraph 14, and SCK and FNK vCommission, cited at paragraph 485 above, paragraph 53). Furthermore, accordingto Article F(2) of the Treaty on European Union (now Article 6 EU), 'the Unionshall respect fundamental rights, as guaranteed by the [ECHR] and as they resultfrom the constitutional traditions common to the Member States, as generalprinciples of Community law. 714. Aalborg (T-44/95), Asland (T-55/95) and Blue Circle (T-88/95) consider that theirfundamental right to be heard by an independent and impartial tribunal wasinfringed. The requirements as to independence and impartiality which a tribunalmust fulfil for the purpose of Article 6 of the ECHR preclude the Commissionfrom performing both investigative and decision-making functions in matters ofcompetition. The applicants state that the fine imposed by the Commission is penalin nature. 715. Asland states that its fundamental rights were infringed in two respects: first, thenature of the procedure in which the Commission applies Article 85(1) of theTreaty is contrary to Article 6 of the ECHR, as interpreted by the European Courtof Human Rights, and to the constitutional traditions common to the MemberStates, because the Commission has overlapping investigative and decision-makingduties and its decisions are not subsequently subject to review of unlimitedjurisdiction; the only review subsequently carried out by the Community judicatureis a review of legality. Second, the obligation to pay the fine or to lodge a bankguarantee as security for the amount of that fine before the Court of First Instancehas ruled on the validity of the contested decision also infringes its right to beheard by an impartial tribunal. Article 185 of the Treaty and Article 192 of the ECTreaty (now Article 256 EC) should, pursuant to Article F of the Treaty onEuropean Union, be reinterpreted in the context of the ECHR and theconstitutional traditions common to the Member States as meaning that theenforceability of the fines imposed depends on the Court's decision on legality. 716. Blue Circle for its part also points out that the Court is unable to investigate thewhole case de novo. 717. It is settled case-law that the Commission is not a 'tribunal within the meaningof Article 6 of the ECHR (Joined Cases 209/78 to 215/78 and 218/78 VanLandewyck v Commission [1980] ECR 3125, paragraph 81, and Musique DiffusionFrançaise, cited at paragraph 439 above, paragraph 7; T-11/89 Shell v Commission,cited at paragraph 323 above, paragraph 39). Moreover, Article 15(4) of Regulation No 17 specifically provides that decisions of the Commission to impose fines forinfringement of competition law are not of a criminal law nature (Case T-83/91Tetra Pak v Commission [1994] ECR II-755, paragraph 235). 718. Even though the Commission is not a 'tribunal within the meaning of Article 6of the ECHR, and even though the fines imposed by the Commission are not ofa criminal law nature, the Commission must nevertheless observe the generalprinciples of Community law during the administrative procedure (MusiqueDiffusion Française v Commission, cited at paragraph 439 above, paragraph 8, andT-11/89 Shell v Commission, cited at paragraph 323 above, paragraph 39).However, the fact that the Commission both investigates and makes findings ofinfringements of Article 85 and/or Article 86 of the Treaty does not of itselfconstitute a breach of a general principle of Community law (Case T-348/94 EnsoEspañola v Commission [1998] ECR II-1875, paragraph 56). Accordingly, the Courtmust reject the argument put forward by Aalborg, Asland and Blue Circle that thecontested decision is unlawful on the ground that it was adopted under a system inwhich the Commission carries out both investigatory and decision-making functions. 719. The arguments put forward by Asland and Blue Circle based on alleged limits tothe Community judicature's review of legality must also be rejected. When theCourt of First Instance reviews the legality of a decision finding an infringement ofArticle 85(1) and/or Article 86 of the Treaty, the applicants may call upon it toundertake an exhaustive review of both the Commission's substantive findings offact and its legal appraisal of those facts. Furthermore, so far as concerns the fines,it has unlimited jurisdiction under Article 172 of the EC Treaty (now Article 229EC) and Article 17 of Regulation No 17 (Enso Española v Commission, cited atparagraph 718 above, paragraphs 62 to 64). 720. Asland's argument that the enforceability of the fine imposed upon it infringes itsright to be heard by an impartial tribunal calls into question the lawfulness ofArticles 185 and 192 of the Treaty, which expressly provide that decisions of theCommission involving a pecuniary obligation are enforceable. It is inadmissible,because the Community judicature has no jurisdiction to examine the legality ofprovisions of the Treaty (order of 14 July 1994 in Case T-584/93 Roujansky vCouncil [1994] ECR II-585, paragraph 15). 721. SFIC (T-36/95) and Vicat (T-37/95) plead breach of the principle of impartiality onthe ground that the same official carried out the investigations, acted as rapporteur,drew up the SO and prepared the draft decision. That argument cannot be upheldeither: the contested decision was not taken by the official to whom SFIC and Vicatrefer, but by the college of Commissioners. What is more, the proceduralguarantees provided for by Community law do not require the Commission toadopt an internal organisation precluding the same official from acting asinvestigator and rapporteur in the same case (T-11/89 Shell v Commission, cited atparagraph 323 above, paragraph 40). 722. CBR (T-25/95) submits that the Commission's refusal to grant access during theadministrative procedure to all documents, whether incriminating or exculpatory,constitutes a manifest infringement of Article 6 of the ECHR, under which it isentitled to have the competent authorities collect all information which mightexculpate or enable it to have its penalty reduced. Likewise, Lafarge (T-43/95) andBlue Circle (T-88/95) consider that the fact that they were not given access to thefull file and to the full text of the SO infringes Article 6 of the ECHR. 723. Those arguments are in fact indissociable from those of CBR, Lafarge and BlueCircle in the first plea, already considered by the Court, alleging infringement ofthe rights of the defence inasmuch as the full text of the SO and the investigationfile was not accessible during the administrative procedure (see paragraphs 87 to435 above). 724. It follows from the foregoing that the 13th plea must be rejected. The 14th plea: breach of the principle of presumption of innocence 725. ENCI (T-31/95), VNC (T-32/95), Lafarge (T-43/95), Aalborg (T-44/95), Castle(T-56/95), Aker (T-70/95) and EUROC (T-71/95) claim that the Commissionprejudged its decision that the whole of the European industry had acted contraryto Article 85(1) of the Treaty. It thus infringed the principle of the presumption ofinnocence. ENCI, VNC and Aalborg put forward no particular argument tosubstantiate that claim. Lafarge, Castle, Aker and EUROC rely on press cuttingspredating the adoption of the contested decision which reveal the tenor of thatdecision and on a reply from Mr Van Miert, a Member of the Commission, dated15 September 1993, to a written question from the European Parliament (OJ 1993C 320, pp. 31 and 32), in which he described the agreements and concertedpractices referred to in the contested decision as 'cartels. 726. The Court finds that the arguments put forward are not relevant to the outcomeof the dispute: the existence of an infringement must be assessed by referencesolely to the evidence gathered by the Commission. Where the commission of aninfringement has actually been proved at the end of an administrative procedure,evidence that the Commission prematurely displayed, during that administrativeprocedure, its conviction that such an infringement exists does not render the proofof the infringement itself any less real. The only relevant question is to ascertain,on the merits, whether or not the infringement has been proved. 727. In any event, the information referred to by the various applicants set out inparagraph 725 above does not prove that the Commission prejudged its decision.The Commission deliberates, as a collegiate body, on the basis of a draft decision.It is clear that, in the present case, Commission officials were not able to preventleaks to the press as to the content of the draft decision. Mr Van Miert's answer of 15 September 1993 to a European Parliament written question states that: '...the Commission is currently considering what action to take. It will take account ofthe specific position of each of the undertakings concerned, including the smallerones, and of their individual behaviour within the cartel. Although the choice ofthe word 'cartel in the reply given by the Member of the Commission concernedmight appear to be unfortunate, the extract taken as a whole directly contradictsthe contention that the Commission had already prejudged its decision at that time. 728. The 14th plea, as submitted by the seven abovementioned applicants, musttherefore be rejected. 729. Italcementi (T-65/95) and Blue Circle (T-88/95) claim that the Commission has notproved beyond all reasonable doubt that the accusations against them were wellfounded. The Commission had assumed, on the basis of a real presumption of guilt,that any actions taken by the European cement producers had been in pursuanceof the Cembureau agreement. By resorting to the argument that there had beena single and continuous agreement, it attempted to avoid having to adducesufficient evidence to prove particular allegations. Blue Circle states that theCommission was wrong to consider that, following service of the SO, the burden ofproof transferred to the applicant. A number of extracts from the contesteddecision (recital 11, paragraph 6; recital 22, paragraph 14, third subparagraph;recital 22, paragraph 15; recital 28, paragraph 12(c); recital 28, paragraph 21,fourth subparagraph) show that the Commission considered that it was for theundertakings to prove that the allegations in the SO were incorrect. Moreover, itdid not deal with, or rejected out of hand, the explanations given by the applicantin its reply to the SO, without explaining why it considered them to be implausible. 730. In actual fact those arguments by Italcementi and Blue Circle relate to the questionof proof of the infringements alleged against them. They will therefore beconsidered with the substantive pleas, from which they are indissociable. The 15th plea: infringement of the right of the parties not to give evidence againstthemselves 731. Unicem (T-50/95) claims that the Commission infringed the principle that duringadministrative proceedings parties may refuse to reply in such a way as toincriminate themselves. It refers to Cembureau's reply during an investigationcarried out pursuant to Article 14(2) of Regulation No 17 (contested decision,recital 18, paragraph 4; document 33.126/11525) and to Cembureau's reply to thestatement of objections relating to a procedure pursuant to Article 15(1) ofRegulation No 17 (contested decision, recital 18, paragraph 4; documents33.126/13568 to 13573). Likewise, Castle (T-56/95), Aker (T-70/95) and EUROC(T-71/95) submit that in the contested decision the Commission relied to asignificant extent on evidence contained in replies to requests for information sent to them pursuant to Article 11 of Regulation No 17, contrary to the right ofundertakings and associations of undertakings not to give evidence againstthemselves. They refer in that regard to the case-law of the European Court ofHuman Rights, specifically to the judgment of 25 February 1993 in Funke v France,Series A, No 256-A, p. 22, which recognises the right under Article 6 of the ECHRof accused persons to remain silent under questioning and not to incriminatethemselves. The principles laid down in that judgment are even at variance with thecase-law of the Court of Justice and of the Court of First Instance. Castle, Akerand EUROC append to their application (annex 5.20 in Case T-56/95, annex 5.17in Cases T-70/95 and T-71/95) a list of replies to the SO on which the Commissionallegedly relied in the contested decision. 732. The Court points out that the Commission may not compel an undertaking involvedin a proceeding finding an infringement of Article 85(1) and/or Article 86 of theTreaty 'to provide answers which might involve an admission on its part of theexistence of an infringement which it is incumbent on the Commission to prove(Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 35; Case T-34/93Société Générale v Commission [1995] ECR II-545, paragraph 74; see, by analogy,the judgment of the European Court of Human Rights Funke v France, Series A,No 256-A, p. 22). 733. However, in the present case, the replies to which Unicem, Castle, Aker andEUROC refer do not emanate from them. They thus have no grounds for claimingthat, during the course of the administrative procedure, the Commission infringedtheir right not to give evidence against themselves. 734. In so far as, by this plea, the applicants concerned complain that the Commissionused allegedly self-incriminating replies by other undertakings and associations ofundertakings, the Court points out that all the replies referred to by Castle (annex5.20 to the application), Aker (annex 5.17 to the application) and EUROC (annex5.17 to the application) were made in response to requests for informationpursuant to Article 11(1) of Regulation No 17. Undertakings and associations ofundertakings are free to reply or not to questions put to them under that provision(Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94,T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 LVM and Others vCommission, not yet published in the ECR, hereinafter the 'PVC judgment,paragraph 456). That conclusion is not affected by the fact that the first part ofArticle 15(1)(b) of Regulation No 17 provides for a penalty. Such a penalty appliesonly where, having agreed to reply, the undertaking provides inaccurateinformation. Therefore, by making requests for information under Article 11(1) ofRegulation No 17, the Commission cannot be regarded as compelling anundertaking to provide it with answers which might involve an admission on its partof the existence of an infringement which it is incumbent upon the Commission toprove (ibidem, paragraph 457). 735. So far as concerns the replies to which Unicem refers (see paragraph 731 above),during the administrative procedure Cembureau was free to reply or not toquestions put to it in the course of an investigation pursuant to Article 14(2) ofRegulation No 17. It was likewise free to reply or not to the statement of objectionssent to it in a procedure pursuant to Article 15(1) of Regulation No 17. 736. It follows that Unicem, Castle, Aker, and EUROC have not proved that during theadministrative procedure the Commission infringed the right of certain undertakingsand associations of undertakings not to give evidence against themselves. 737. SFIC (T-36/96) submits that an SO which does not state sufficiently precisely theobjections raised against each of its addressees is likely to cause the partiesconcerned, through legitimate attempts to exercise their rights of defence, to admitto their participation in infringements which the Commission did not intend toattribute to them. Similarly, SECIL (T-62/95) claims that the imprecise nature ofthe objections transformed the inter partes stage of the procedure into an extensionof the inquisitorial stage of the investigation, in which the Commission sought onlyto obtain new evidence against the undertakings and associations concerned. BlueCircle (T-88/95) also complains about the imprecision of the SO. 738. The Court has already held (see paragraphs 504 to 626 above) that the SO referredsufficiently precisely to the participation of SFIC, SECIL and Blue Circle in thevarious infringements of which they are accused in the SO and in the contesteddecision. In those circumstances, there is no basis for the argument put forward bythose applicants and it must be rejected. 739. It follows from the foregoing that the 15th plea must be rejected. The 16th plea: infringement of Article 10 of Regulation No 17 in that there was noproper consultation of the Advisory Committee 740. ENCI (T-31/95), SFIC (T-36/95), Vicat (T-37/95), Ciments Français (T-39/95),Lafarge (T-43/95), BDZ (T-48/95), Buzzi (T-51/95), Valenciana (T-52/95), Asland(T-55/95), Uniland (T-58/95) and Oficemen (T-59/95) claim that the Commissioncommitted breaches of procedure in its consultation of the Advisory Committee.ENCI, SFIC, Lafarge, BDZ, Valenciana, Asland, Uniland and Oficemen alsocomplain of the fact that the Advisory Committee was not informed of the preciseamounts of the fines. Vicat, Ciments Français and Buzzi add that they believe thatthe Advisory Committee was consulted only as to the percentage of turnover andnot as to the precise amount of the fines expressed in ecus. 741. SFIC claims moreover that it is not in a position to check whether all the membersof the Advisory Committee had knowledge of the main documents in the file andhad access to all the minutes of the hearings and to the Hearing Officer's report. It asks the Court to adopt measures of organisation of procedure in order to verifywhether those documents were sent to the Advisory Committee. 742. The Court points out that consultation of the Advisory Committee, provided for inArticle 10(3) to (6) of Regulation No 17, is an essential procedural requirement,breach of which affects the legality of the Commission's final decision if it is provedthat failure to forward certain material information did not allow the AdvisoryCommittee to deliver its Opinion in full knowledge of the facts, that is to saywithout being misled in a material respect by inaccuracies or omissions (Case T-69/89 RTE v Commission [1991] ECR II-485, paragraph 23). 743. In the present case, the applicants concerned, except SFIC, complain only that fullinformation relating to the fines was not sent to the Advisory Committee. In thosecircumstances, the plea, should it prove to be well founded, could result only in theannulment of Article 9 of the contested decision, in so far as it imposes fines on theapplicants concerned. Since that provision must already be annulled to the extentthat it imposes a fine on the associations of undertakings (see paragraphs 478 to488 above), this plea has become devoid of purpose in the form put forward byBDZ and Oficemen. The plea relied upon by SFIC is also without purposeinasmuch as it complains that full information relating to the fines was not sent tothe Advisory Committee. 744. So far as the 16th plea in law is relied upon by ENCI, Vicat, Ciments Français,Lafarge, Buzzi, Valenciana, Asland and Uniland, the Court points out, first, thatthe Commission has explained during the proceedings before the Court that theAdvisory Committee met on 23 November 1994 in order to consider the matter ofthe fines. Following a written question put by the Court, it explained in a letter of11 December 1997 that in order to avoid leaks to the press the exact amounts ofthe fines proposed had not been sent to the Committee. The Commission didhowever give an approximate overall figure in ecus, representing the total fines tobe imposed, and informed the members of the Advisory Committee that it intendedto impose a fine of 5% of the turnover of the undertakings mentioned in recital 65,paragraph 9(a), of the contested decision, and of 3.5% on the undertakingsmentioned in recital 65, paragraph 9(b), of that decision. 745. In order to check the veracity of those statements, the Court, by a measure oforganisation of procedure of 9 September 1998, asked the Commission to producethe notice convening the meeting of the Advisory Committee of 23 November 1994,the extracts from the documents concerning the fines which were submitted to theCommittee at that meeting, and the minutes of that meeting. 746. In compliance with that measure of organisation of procedure, on 14 September1998 the Commission lodged at the Court Registry the notice convening themeeting at issue and the preliminary draft of the part of the decision relating to thefines, submitted at that meeting. The documents sent are copies of documents which the members of the Committee actually received. For that reason, theycontain certain handwritten notes added in the course of the meeting. TheCommission also sent to the Court the Opinion delivered by the AdvisoryCommittee at the conclusion of the meeting. That Opinion serves as the minutesof the meeting. 747. It is apparent from examination of those documents that, during its meeting of 23November 1994, the Advisory Committee was informed of the criteria envisagedfor the imposition of fines (point 1 of the Opinion). The majority of the membersof the Advisory Committee considered that 'the Commission [had] applied [those]criteria concerning both the gravity and the duration of the infringementsconsistently (point 2 of the Opinion). The handwritten notes made by a memberof the Advisory Committee on the preliminary draft of the part of the decisionrelating to the fines confirm the Commission's contention that the Committee wasaware that the undertakings mentioned in recital 6, paragraph 9(a), of thecontested decision bore greater responsibility and should be fined 5%, while theundertakings mentioned in recital 65, paragraph 9(b), of the contested decisionwere to be fined 3.5%, since they bore lesser responsibility. 748. In those circumstances, even though the members of the Advisory Committee werenot informed of the exact amount of the fines, in ecus, which the Commissionintended to impose on the undertakings in question, the Commission sent to theAdvisory Committee all the material information necessary for drawing up anopinion on the fines (see, to this effect, Case 45/69 Boehringer Mannheim vCommission [1970] ECR 769, paragraphs 19 to 21). The fact that the Commissionultimately adopted lower percentages for the fines in the contested decision, namely4% for the undertakings mentioned in recital 65, paragraph 9(a), of the contesteddecision and 2.8% for the undertakings mentioned in recital 65, paragraph 9(b), ofthe contested decision clearly did not damage the interests of the applicants raisingthe present plea. 749. SFIC's wider allegation that the members of the Advisory Committee had noknowledge of the main documents in the file must be rejected for lack of precision.As regards more specifically the minutes of the hearing, SFIC puts forward noevidence to show that it would have been necessary to send those minutes toenable the Advisory Committee to deliver its Opinion in full knowledge of the facts(RTE v Commission, cited at paragraph 742 above, paragraph 23). Finally, it shouldbe borne in mind that it is not mandatory for the Hearing Officer's report to bepassed on to the Advisory Committee (Case T-14/89 Montedipe v Commission[1992] ECR II-1155, paragraph 40). SFIC's argument set out at paragraph 741above must therefore be rejected and it is not necessary to adopt the measures oforganisation of procedure requested. 750. It follows from all the foregoing that the whole of the 16th plea in law must berejected. The 17th, 18th, 19th and 20th pleas: infringement of the principle of subsidiarity, theprinciple of sound administration, the principle of legal certainty and the principle oflegitimate expectations during the administrative procedure 751. Some applicants maintain that the administrative procedure is vitiated by theinfringement of various principles, namely the principles of subsidiarity, of soundadministration, of legal certainty and of legitimate expectations. In their view, suchinfringements warrant the annulment of the contested decision. 752. According to Ciments Français (T-39/95), by belatedly referring to the nationalauthorities the investigation of a proceeding whose complexity and duration wereexcessive, the Commission infringed the principle of sound administration andincreased the uncertainty of the undertakings concerned. The decision to refer thenational objections to the national authorities put in question the very purpose ofthe proceeding. Lafarge (T-43/95) and Oficemen (T-59/95) consider that theprinciple of sound administration required the Commission to complete the inquiryinto the national objections, instead of severing the national objections and leavingthe opening of a new case to the discretion of the national authorities. They doubtwhether the dropping of the national objections without giving any reason iscompatible with the principle of subsidiarity, since the matter manifestly falls withinthe scope of Community interest. 753. Lafarge complains that the Commission created legal uncertainty in the minds ofthe undertakings against which proceedings had been brought by reserving the rightto send the file on the national agreements and concerted practices to the variousnational authorities, without, however, indicating whether or not it had actuallydone so. It observes that, if the Commission had actually dropped the nationalobjections, it should have adopted a formal decision to terminate the proceedings. 754. That line of argument is unfounded. The Court points out that throughout theadministrative procedure the Commission observed the principle that the durationof proceedings should be reasonable (see paragraphs 706 to 711 above). Moreover,in dropping the national objections, it did not alter the nature of the internationalobjections which were the only objections ultimately to give rise to findings ofinfringements and the imposition of fines (see paragraphs 439 and 440 above). Inits letter of 27 September 1993, the Commission stated that it had 'informed thecompetent national authorities of that decision, leaving it to them to take, ifnecessary, any measures they [deemed] appropriate in order to bring to an end thepractices in question. On the contrary, far from being incompatible with theprinciple of legal certainty or that of sound administration, the decision to allow thenational authorities to take steps, if necessary, against those who had participatedin any national agreements or concerted practices assured the parties concernedthat, at Community level, the Commission would not penalise them for suchinfringements. The alleged legal uncertainty regarding the attitude which the national authorities would adopt cannot have any bearing on the legality of thefindings of infringements relating to the international objections; they are whollyseparate from the national objections. Moreover, claims that there was suchuncertainty are at variance with Article 9(3) of Regulation No 17. Under thatprovision, irrespective of any 'decision to refer which the Commission may adopt,the national authorities remain competent, where no procedure is pending beforethe Commission, to apply Articles 85(1) and 86 of the Treaty. So far as concernsthe principle of subsidiarity, suffice it to say that neither Lafarge nor Oficemen hadany interest in the Commission's completing proceedings which could also haveresulted in a finding of infringements in connection with national agreements andconcerted practices. Finally, the undertakings in question could not seek aCommission decision finding that their 'conduct at national level did not infringeArticle 85(1) of the Treaty, since they had not notified that conduct in order toobtain a negative clearance in accordance with Article 2 of Regulation No 17. 755. Ciments Français claims that the Commission infringed the principle of theprotection of legitimate expectations by accusing the defendant undertakings ofconcerted action between the Head Delegates of Cembureau on dumping and thebasing-point system, despite having itself to a very large extent advocated andencouraged such concerted action. 756. That plea is also unfounded: in the contested decision, the Commission does notcomplain that the European cement producers held discussions on dumping andon the basing-point system at certain Head Delegates meetings. The HeadDelegates meetings referred to in recital 19 of the contested decision are objectedto by the Commission solely on the ground that in its view, the participants had, inparallel with those unobjectionable topics of discussion, also concluded andsubsequently confirmed an anti-competitive agreement on non-transhipment tohome markets and regulation of transfers of cement from one country to another. 757. It follows from all the foregoing that the 17th, 18th, 19th and 20th pleas must berejected. The 21st plea: infringement of the principle of collegiate responsibility when thecontested decision was adopted 758. SFIC (T-36/95) doubts whether all the Members of the Commission actually hadaccess to all the observations made by the addressees of the SO, to all the minutesof the hearings, and to the Hearing Officer's report. The principle of collegiateresponsibility was thus breached. In its observations on the Report for the Hearing,SFIC asked the Court to adopt measures of organisation of procedure in order toverify whether the Members of the Commission had had access to thosedocuments. 759. The functioning of the Commission is governed by the principle of collegiateresponsibility (Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph33). The Court points out that, pursuant to that principle, decisions should be thesubject of collective deliberation and all the Members of the College ofCommissioners should bear collective responsibility at political level for all decisionsadopted (Case 5/85 AKZO Chemie v Commission [1986] ECR 2585, paragraph 30,and Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555,paragraph 63). 760. Under the principle of collegiate responsibility, the information on which theCommission's decisions are based must be available to all the members of thecollege (Commission v Germany, cited at paragraph 759 above, paragraphs 48 and49). Since SFIC has not adduced any concrete evidence to show that the principleof collegiality was infringed, there are no grounds for its assertion that theMembers of the Commission did not have access to the replies to the SO, to theminutes of hearings and to the Hearing Officer's report, before they adopted thecontested decision. 761. In those circumstances, the 21st plea in law must be rejected and it is not necessaryto adopt the measures of organisation of procedure requested (BPB Industries andBritish Gypsum v Commission, cited at paragraph 142 above, paragraph 35, andBaustahlegewebe v Commission, cited at paragraph 144 above, paragraphs 91 to 94). The 22nd plea: improper authentication and notification of the contested decision 762. CBR (T-25/95), Heidelberger (T-42/95), Unicem (T-50/95), Valenciana (T-52/95)and Italcementi (T-65/95) consider that there were irregularities during theauthentication and/or notification of the contested decision. 763. Heidelberger claims not to know, as a general matter, whether the Commissionobserved all its internal rules on procedure and on the adoption of decisions. Itstates that its fears that there may have been a procedural irregularity arereinforced by the fact that the Commission encountered problems whenauthenticating and notifying the contested decision. 764. Heidelberger's argument is not supported by any concrete evidence to enable theCourt to assess its merits. It must therefore be rejected for lack of precision. 765. Unicem and Italcementi claim that the authentication of the Italian version of thecontested decision is flawed. According to them, that flaw stems from the fact thatthe contested decision was notified twice, first in December 1994 and then inFebruary 1995, and that the letter accompanying the second notification to theItalian undertakings referred to an 'error at the stage of authentication ('unerrore nella fase di autentificazione). CBR also raises the question of the exact nature of the error made by the Commission which gave rise to the secondnotification of the contested decision on 2 February 1995. It therefore requests theCourt to verify whether the error to which the Commission refers actually concernsthe authentication of the Italian version of the decision. 766. The Court points out that authentication of a decision finding an infringement ofthe Community competition rules is an essential procedural requirement within themeaning of Article 173 of the Treaty (Commission v BASF, cited at paragraph 759above, paragraph 76, and T-37/91 ICI v Commission, cited at paragraph 142 above,paragraph 89). 767. In the present case, the Court took the view that the evidence of infringement ofthe principle of the inalterability of the contested decision put forward by theapplicants concerned (see paragraph 765 above) was sufficiently serious andconvincing to justify adoption of a measure of organisation of procedure (SPO vCommission, cited at paragraph 485 above, paragraph 55). It thus requested theCommission, by letter of 11 November 1997, to explain the nature of the error inauthentication referred to in the letter accompanying the second notification of thecontested decision to the Italian undertakings. The Commission was also asked tosend the authenticated Italian version of the contested decision. 768. By letter of 22 December 1997, the Commission explained that the error inquestion occurred at the printing stage of the contested decision prior tonotification. The version first notified to the Italian undertakings included a page233 which was identical to page 231, whereas the real page 233 was missing. Theauthentication of the contested decision was not, however, vitiated by an error.Indeed, the Italian version of the contested decision, annexed to the minutes of themeeting of the Commission held on 30 November 1994, did not contain the erroraffecting the text of the contested decision notified to the Italian undertakings. Withits letter of 22 December 1997 the Commission included a copy of theauthenticated Italian version of the contested decision, stating that the original inits possession was at the disposal of the Court, should it wish to verify it. 769. During the hearing on 30 September 1998 in Case T-65/95, the Court asked theCommission to produce, by 6 October 1998, the original of the authenticated Italianversion of the contested decision. CBR and Unicem were informed of that measureof organisation of procedure at the hearings on 14 October and 30 September 1998respectively. The Commission complied with the Court's request within theprescribed period. 770. CBR, Unicem and Italcementi did not challenge the explanation put forward by theCommission for the two notifications following adoption of the contested decision.At the hearings in Cases T-25/95, T-50/95 and T-65/95 respectively, they none theless asked the Court to verify whether the copy of the Italian version of thecontested decision annexed to the Commission's letter of 22 December 1997, and of which they had received notification, conformed to the original Italian versionof the contested decision. 771. The Court finds that the two documents in are perfect conformity. Moreover,examination of the authenticated version does not disclose any irregularity whichmight have been committed by the Commission upon authentication. 772. In those circumstances, the argument put forward by CBR, Unicem and Italcementimust be rejected. 773. Valenciana considers that notification of the contested decision was irregular. Itcomplains that, in the second notification, the Commission did not state clearlywhether the time-limit for instituting proceedings referred to in Article 173 of theTreaty was deemed to run from the first or from the second notification. Itcontends that, since the explanations provided by the Commission in its letter of13 February 1995 (annex 6 to its application) did not remove that uncertainty, ittook the view that the time-limit for instituting proceedings began to run from thefirst notification and, consequently, it had less time to bring its action. 774. When asked by the Court about the differences between the text of the contesteddecision as first notified and the text subsequently notified, Valenciana merelystated in its letter of 11 December 1997 that the text of the second notification,unlike that of the first one, did not include any figures in the tables and otherparticulars in recital 23, paragraphs 3 to 5, of the contested decision. It is nottherefore disputed that the text of the second notification is identical, in its Spanishversion, to the text of the first one, except with regard to some confidential datawhich was blanked out in the text of the second notification. Accordingly, eventhough the time-limit for bringing an action against the contested decision beganto run as from the first notification, rather than from the second notification as theCommission claims, Valenciana had a period of time corresponding to thatprovided for in Article 173 of the Treaty, together with an extension on account ofdistance, for the bringing of an action against all aspects of the contested decision.Valenciana's argument must therefore be rejected. 775. It follows from all the foregoing that the whole of the 22nd plea must be rejected. II The plea alleging misuse of powers 776. Ciments Français (T-39/95), Lafarge (T-43/95), Oficemen (T-59/95) and Halkis(T-104/95) allege misuse of powers. 777. Halkis claims that the Commission misused its powers by imposing on it a fine foran infringement in which it did not participate. Expressed in this way, the plea isindissociable from the plea alleging manifest error of assessment regarding Halkis' participation in the Cembureau agreement. The Court will therefore examine it inthe context of its examination of the substantive pleas concerning that applicant'sparticipation in the Cembureau agreement (see paragraphs 4096 to 4101 and 4210to 4213 below). 778. Ciments Français, Lafarge and Oficemen consider that the fact that theCommission dropped the national objections can be explained only by theCommission's desire to avoid the consequences of the judgment in Cimenteries CBRv Commission (cited at paragraph 11 above) and to avoid the annulment of thecontested decision on the ground that it had infringed the rights of the defence bynot granting full access to the SO and to the case-file. 779. The Court points out that a decision is vitiated by misuse of powers only if itappears, on the basis of objective, relevant and consistent evidence, that it wasadopted with the exclusive or main purpose of achieving ends other than thosestated (see Case T-143/89 Ferriere Nord v Commission [1995] ECR II-917,paragraph 68). 780. There is no such evidence in the present case: Ciments Français, Lafarge andOficemen have not adduced any concrete evidence to cast doubt on theCommission's argument that its decision to terminate proceedings in respect of thenational agreements and concerted practices was occasioned by the written repliesto the SO and the explanations put forward orally at the hearings. 781. It follows that the present plea must be rejected.                                                                     III  Pleas alleging infringements of Articles 85(1) and 190 of the Treaty, the principleof equal treatment and the rights of the defence in that the Commission found inArticle 1 of the contested decision that there had been an agreement contrary to Article85(1) of the Treaty and that the various applicants concerned had participated in it Preliminary observations 782. According to Article 1 of the contested decision, all the addressees of the contesteddecision 'infringed the provisions of Article 85(1) of the ... Treaty by participatingin an agreement designed to ensure non-transhipment to home markets and toregulate cement transfers from one country to another. The agreement thusfound to have been concluded is also referred to as the 'Cembureau agreement. 783. In the pleas to be considered here, a number of the applicants criticise thedefinition of the product market and the geographical market on which theCommission found that there had been an infringement. Some of the applicantsplead inconsistency between the SO and the contested decision in regard to the Cembureau agreement. A number of applicants dispute the very existence of thatagreement. All the applicants deny having participated in it. 784. Before considering whether the various arguments put forward are well founded,it is appropriate to set out the various findings of fact and of law on which theCommission relied in the contested decision in concluding that the infringementhad been committed. The infringement referred to in Article 1 of the contested decision 785. The infringement referred to in Article 1 of the contested decision is an agreementrelating to the market in grey cement. The Commission considers that '[i]n termsof the relevant product market, grey cement, white cement and clinker constituteseparate markets, since each product meets different requirements (contesteddecision, recital 11, paragraph 1). In the contested decision the Commission thusfinds infringements not only on the market in grey cement (Articles 1 to 6) but alsoon the market in white cement (Article 7). 786. In terms of the relevant geographic market, the Commission maintains that 'thecement market may be seen as a set of markets, centred around the variousfactories, overlapping one another and covering the whole of Europe (contesteddecision, recital 11, paragraph 2). 787. The Commission considers (contested decision, recital 11, paragraph 7, first andsecond subparagraphs) that: 'All the overlapping markets are interdependent on one another, and any actiontaken on one market may have an impact on the most distant markets ... It is evident from the above that Europe is the relevant market, consisting of a setof juxtaposed and interdependent markets. 788. The infringement in question consists of an agreement which, according to theCommission, was concluded within Cembureau, the European cementmanufacturers' trade association (contested decision, recitals 18, 19 and 45). Theagreement was concluded at the meeting of Cembureau Head Delegates held on14 January 1983 (contested decision, recital 45, paragraph 1). The 'HeadDelegates were the representatives of the members of Cembureau who wereentitled to vote at its General Assembly (contested decision, recital 15, paragraph4). 789. The purpose of the agreement was to 'ensure non-transhipment to home marketsand to regulate cement transfers from one country to another (contested decision,recital 45, paragraph 9, and Article 1). 790. In the contested decision the Commission relies solely on the specific documentaryevidence identified and discussed in recitals 18, 19 and 45. 791. It states, first, that the purpose and the content of the Cembureau agreement areapparent from the letter convening the meeting of Head Delegates on 14 January1983 signed by Mr Gil Braz de Oliveira (contested decision, recital 19, paragraph2; documents 33.126/11552 and 11553) and from a draft introductory statement bythe Chairman for that meeting (contested decision, recital 19, paragraph 5;documents 33.126/11583 to 11585). 792. The letter convening the meeting states: '... The general recession affecting the industry's domestic sales meant that cementtransfers between member countries could have harmful consequences for ourindustry if appropriate measures were not taken in time as in the case, for example,of the trade between Belgium and the Netherlands which is to be regulated by aprotocol shortly to be published in the Official Journal of the EEC. 793. The draft introductory statement by the Chairman states: ' We shall ... be able to assess the risks entailed by an increase in certainimports coupled with a sharp reduction in certain prices, before thisphenomenon has had time to spread in extent and gravity.  Our objective is not of course to take collective decisions here, to passjudgment on what we find or to act as arbiter, but rather, with yourassistance, to identify possible solutions capable of modifying marketdevelopments and to propose, at least in regard to principles, certain rulesof the game which it is in the interests of all of us to follow.  What we then expect of you is that this exchange of views encourages youto spread words of wisdom around you and that, each time it is necessary,multi- or bi-lateral discussions are held, as and when the need arises. 794. The statement concludes by stating: 'Needless to say there will be no minutes of this meeting. 795. Similarly, the memorandum on the structure of the meeting in question (contesteddecision, recital 19, paragraph 6; documents 33.126/11578 and 11579) states: '13.15/13.30  Close of meeting  No minutes. 796. The Commission takes the view that other documents relating to the HeadDelegates meeting held on 14 January 1983 also indicate the illicit nature of thediscussions at the meeting. 797. It refers in that regard to the changes made to the draft agenda for the meeting of14 January 1983 (contested decision, recital 19, paragraph 3; docs 33.126/11558,11559, 11565, 11580 and 11656). 798. The draft agenda dated 16 November 1982 originally contained, in particular, thefollowing item: '2. Intra-European Trade A. Analysis of situation 1. Data 2. Price situation  National Prices 3. Motivation and organisation of Crossborder Trade - Expecteddevelopments B. Possible measures to control intra-trade ... 799. By telex of 17 November 1982 (contested decision, recital 19, paragraph 3;document 33.126/11559) Mr Van Hove, Chairman of the Liaison Committee of theCement Industries in the EEC (hereinafter 'CLC), was informed that theChairman of Cembureau, Mr Bailly, sought his views on the wording of item 2 onthe agenda, which should 'read sufficiently clearly without giving rise to reactions. 800. By telex of the same date (contested decision, recital 19, paragraph 3; document33.126/11558) Mr Van Hove replied: 'The following words contained in your telex of 17 November must be removedfrom any official document: ... Organisation of Crossborder Trade ... Control Intra-trade ... 801. At the Executive Committee meeting held on 22 December 1982, item 2 on theagenda for the meeting on 14 January 1983 was in the following form (contesteddecision, recital 19, paragraph 3; document 33.126/11656): '2. Intra-European trade A. Analysis of situation ... (iii) Motivation and nature of trade  Expected developments B. Possible ways to maintain fair trading ... 802. The Commission maintains that the Cembureau agreement was confirmed at theHead Delegates meeting held on 19 March 1984 (contested decision, recital 45,paragraph 2). In support of that assertion it relies on the memorandum to theChairman for that meeting (contested decision, recital 19, paragraph 9; documents33.126/11728 and 11729) and the notes on that meeting (contested decision, recital19, paragraph 10; documents 33.126/11733 to 11737). 803. The memorandum to the Chairman states under item 2, entitled 'Situation on theEuropean market: ' The gap between [price] extremes which is between 1 and 2 inevitablyconstitutes a temptation.  It is therefore desirable gradually to reduce the gap, essentially by increasingthe lowest prices ... and also by moderating high price trends. 804. It further states: 'The hot spots are still:  Exports from Germany to the United Kingdom and Ireland;  Exports from France to Germany;  Exports from Spain to Ireland and the United Kingdom. A new hot spot is exports from Italy to Switzerland. 805. The notes on the Head Delegates meeting held on 19 March 1983 conclude: '... it was agreed that a visual presentation of price ranges was an effective meansof highlighting potential causes of conflict. 806. The Commission considers (contested decision, recital 45, paragraph 2, firstsubparagraph) that the notes taken at that meeting: '... show that Cembureau and its members re-examined jointly the tensions createdby cross-frontier flows, that they pursued the objective of reducing trade in cementbetween Cembureau member countries and that this objective was achieved. Thenotes state ... that the pressure from inter-member trade had slackenedconsiderably through improved bilateral contacts. Exports had tended to shrink butthere was still a threat from outsiders. 807. As regards the Cembureau agreement, the Commission considers (same paragraph,second subparagraph): 'The content of the agreement was again confirmed at the meeting of HeadDelegates held on 7 November 1984 ..., at which the channelling of Greek andSpanish production surpluses was endorsed by Cembureau and its members so asto avoid destabilising European markets. 808. In support of that assertion, the Commission refers to the following extracts fromthe 'summary notes of 12 November 1984 relating to the meeting held on 7November 1984 (contested decision, recital 19, paragraph 14; documents33.126/11754 and 11755): 'East European imports ... World market developments Situation ... Greek/Spanish Agreement This is unanimously considered as the basic criterion if better export prices are tobe achieved, and the risk of a destabilisation in Europe avoided. Negotiations havebeen proceeding for several months between four Spanish and three Greekcompanies, though the mechanism of the discussions was not described. Someresults have been achieved, but there has been no effect so far on prices.Discussions have already been held also with Japan and Korea. The generalsentiment, however, is that the main problem is to achieve a firm understandingbetween the major European exporters. ... General conclusions The situation was serious and export prices damagingly low. There was surpluscapacity both in West Europe and the Far East, which had to be used in aresponsible manner. The Greek and Spanish cement industries were to becongratulated on their efforts to reach understanding, and other member countrieswere prepared, if requested, to support fully their endeavours. Small quantitiesexpected by other countries would not disturb the market if mutual confidenceprevailed. 809. In the contested decision the Commission considers that both the existence and thecontent of the Cembureau agreement are confirmed by certain documents notdirectly relating to the abovementioned meetings of Head Delegates. It refers inthat regard to two Blue Circle internal memoranda, one dated 1 December 1983(contested decision, recital 18, paragraph 2; documents 33.126/11332 to 11334) andthe other undated (contested decision, recital 18, paragraph 3; documents33.126/11335 to 11337). 810. The first, entitled 'Strategy against imports and the future of the UK cementindustry, discusses the problem of surplus production in Western Europe: 'At the moment 22 million tonnes of the West European surplus is able to bechannelled to overseas markets in need of the product but there is every likelihoodthat this figure will collapse dramatically to 15 million tonnes or less by early 1985and under that strain it is probable that the Cembureau principle of nottranshipping to internal European markets will break down. 811. It suggests, in particular, the following defence against cement imports: 'Actually setting up silos in enemy territories. A credible and possible effectiveoption to a limited degree, but (a) will be time consuming and expensive (b) mayinfuriate the whole target country to even greater measures thereby totally breakingthe Cembureau agreement and if so [Blue Circle] will inevitably be the greatestloser. 812. The second Blue Circle memo, entitled 'Import threat, stated: 'Assuming that the Cembureau policy of non-transhipment holds and ourassumption that the West German imports are not going to prove profitable, therewould appear to be only three major residual threats ... 813. In the course of an investigation pursuant to Article 14(2) of Regulation No 17,Cembureau stated (contested decision, recital 18, paragraph 4: document33.126/11525): 'There is no Cembureau Agreement or Principle or a fortiori any otherdocument containing implementing rules. Where such an expression is used in a document, it refers not to an anti-competitive practice but to compliance withestablished practices and ethics that have gradually evolved through contact withbusinesses and economic development in various countries. 814. In its reply to a statement of objections pursuant to Article 15(1) of RegulationNo 17, Cembureau claimed, as regards the Blue Circle memorandum of 1December 1983 (contested decision, recital 18, paragraph 4; documents33.126/13568 to 13573): 'This document ... refers simply to good neighbour rules encouraged byCembureau. The reference to the Cembureau principle of not transhipping tointernal European markets relates to a type of conduct which is desired bymembers but does not in itself contain any constraint or a fortiori any penalty. The reference to a Cembureau agreement concerns the same principle, involvingestablished practices and ethics that have gradually evolved through contact withbusinesses and economic development in various countries. 815. The Commission takes the view that Cembureau itself thus ultimately indirectlyadmitted to the existence of the Cembureau agreement (contested decision, recital45, paragraph 4). 816. The Commission also refers (contested decision, recital 18, paragraph 5; documents33.126/19875 to 19877) to the following statement made by Mr Kalogeropoulos,Chairman of Heracles, on 25 June 1986 (not 15 June 1986, as wrongly stated in thecontested decision) at a Heracles Board Meeting: '... there has existed and continues to exist an agreement by all the Europeancement producers that no one must intervene within the national frontiers of theothers ... Because of this way of thinking over the last 30 years and because of thistactic, the Europeans have never had to face active competition and a decrease inprices. 817. The Commission considers finally (contested decision, recital 45, paragraph 5) that: '... the rule on non-transhipment to domestic markets and the regulation of salesfrom one country to another constitute an agreement between undertakings directlyor through the intermediary of their associations, in breach of Article 85(1),through the concurrence of wills that the domestic markets of the others should berespected and cement transfers from one country to another regulated and, thus,that the commercial freedom of the undertakings should be restricted. 818. In the Commission's view, the agreement also has direct effects on trade betweenMember States (contested decision, recital 52). 819. The Commission considers that 'the whole of the arrangements adopted within theframework of Cembureau and the bilateral and/or multilateral meetings andcontacts ... constituted a single and continuous agreement (contested decision,recital 46, paragraph 1, first subparagraph). 820. Accordingly, not only the concurrence of wills which emerged between Cembureauand its members at the Head Delegates meetings but also the conduct referred toin Articles 2 to 6 of the contested decision constitute a single and continuousagreement. 821. That single and continuous agreement is the agreement referred to in Article 1 ofthe contested decision. 822. As regards the duration of the infringement, the Commission refers (contesteddecision, recital 45, paragraph 6) to the abovementioned statement of MrKalogeropoulos: '[Mr Kalogeropoulos] suggests that the agreement not to tranship to internalmarkets had existed for some 30 years. Since it does not have any other evidencethan this statement to indicate that the conduct in question had lasted as long asthis, the Commission considers that the agreement took effect on 14 January 1983,the date of the meeting at which certain rules of the game which it is in theinterests of all of us to follow, were discussed ..., rules which were confirmed atthe following meetings of the Head Delegates. 823. As regards the date on which the infringement ended, the Commission states thatit does not have any factual evidence to determine that date and that it has no realcertainty that the infringement really ceased (contested decision, recital 45,paragraph 6, and recital 65, paragraph 4). 824. On this point, the Commission concludes (contested decision, recital 65, paragraph4): '... since the apparently final manifestation of the agreement, known to theCommission, is the liquidation of Interciment SA [the setting-up of which formedthe subject-matter of the infringement referred to in Article 4(2) of the contesteddecision] on 26 March 1993, the Commission has used that date for determiningthe reference period for the fine. Definition of the relevant market 825. Dyckerhoff (T-35/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge(T-43/95), Aalborg (T-44/95), Unicem (T-50/95), Buzzi (T-51/95), Asland (T-55/95),Castle (T-56/95), Uniland (T-58/95), Oficemen (T-59/95), Irish Cement (T-60/95), Italcementi (T-65/95), Aker (T-70/95), EUROC (T-71/95), Cementir (T-87/95) andBlue Circle (T-88/95) consider that by taking the market in grey cement as therelevant market, a market which it alleges to be of a European dimension, theCommission committed serious errors of assessment. Lafarge and Aalborgmaintain that that market does not constitute a separate market (A). Dyckerhoff,Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Buzzi, Asland, Castle,Uniland, Oficemen, Irish Cement, Italcementi, Aker, EUROC, Cementir and BlueCircle maintain that the cement market is a very local market, so that Europecannot constitute the relevant geographical market (B). 826. CBR (T-25/95), Ciments Français, Asland and Blue Circle consider that theCommission infringed Article 190 of the Treaty by failing to define the relevantproduct and geographical markets with sufficient clarity (C). A  The relevant product market 827. Lafarge and Aalborg challenge the definition of the relevant product market inrecital 11, paragraph 1, of the contested decision. 828. Lafarge maintains that the definition is based on the absurd economic reasoningthat clinker and cement are substitute products. The definition also ignores thedistinction between grey cement and white cement. 829. The Court points out that the Commission has never claimed that clinker, greycement and white cement are substitute products. On the contrary, it states inrecital 11, paragraph 1, of the contested decision that '[i]n terms of the relevantproduct market, grey cement, white cement and clinker constitute separate markets,since each product meets different requirements. The Commission merely pointsout (same paragraph) that 'it must be borne in mind [however] that clinker mayinfluence the other two markets, since it is the essential intermediate product usedin manufacturing grey cement and white cement. The fact that the Commissionexplained that clinker is used in manufacturing cement does not mean that itregards the products as substitute products belonging to the same market. 830. Aalborg argues that each country has not only different standards for cement butalso its own specific uses and traditions in construction. It is therefore inaccurateto claim, as the Commission does (contested decision, recital 6, paragraph 9), thatthere are one or more types of standard cement common to all domestic markets. Aalborg adds that, if the Commission chose not to distinguish between the marketsin the various types of grey cement, there was no reason to distinguish the grey-cement market from the white-cement market. 831. That argument must also be rejected. The arguments put forward by Aalborg,which merely contest the definition of the market in general terms without proposing an alternative definition of the relevant market or markets, do notundermine the Commission's detailed analysis of 'grey cement and 'whitecement in recitals 6 and 7 of the contested decision, which clearly concludes that'[w]hite cement has a different market from the grey cement market (contesteddecision, recital 7, paragraph 2), 'since each product meets different requirements(contested decision, recital 11, paragraph 1). B  The relevant geographical market 832. Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Buzzi,Asland, Castle, Uniland, Oficemen, Irish Cement, Italcementi, Aker, EUROC,Cementir and Blue Circle deny that Europe is the relevant geographical market(contested decision, recital 11, paragraphs 1 and 7). They submit that the cementmarket is made up of a mosaic of regional markets which are strictly delimited,with no overlapping areas, and entirely independent of each other. 833. The Court points out, however, that the approach to defining the relevant marketdiffers according to whether Article 85 or Article 86 of the Treaty is to be applied. For the purposes of Article 86, a proper definition of the relevant market is anecessary precondition for any judgment as to allegedly anti-competitive behaviour(Joined Cases T-68/89, T-77/89 and T-78/89 SIV and Others v Commission [1992]ECR II-1403, paragraph 159) because, before an abuse of a dominant position isascertained, it is necessary to establish the existence of a dominant position in agiven market, which presupposes that such a market has already been defined. Forthe purposes of applying Article 85, the reason for defining the relevant market isto determine whether the agreement, the decision by an association of undertakingsor the concerted practice at issue is liable to affect trade between Member Statesand has as its object or effect the prevention, restriction or distortion ofcompetition within the common market (SPO and Others v Commission, cited inparagraph 485 above, paragraph 74). 834. That is why, for the purposes of Article 85, the applicants' objections to thedefinition of the market adopted by the Commission cannot be seen in isolationfrom their objections concerning the effect on trade between Member States andthe impairment of competition (SPO and Others v Commission, cited in paragraph485 above, paragraph 75; Enso Española v Commission, cited in paragraph 718above, paragraph 232; and Joined Cases T-374/94, T-375/94, T-383/94 and T-388/94European Night Services and Others v Commission [1998] ECR II-3141, paragraphs90 to 105). 835. The Court must therefore reserve its examination of the various submissions thatthe Commission committed a manifest error of assessment when it took the viewthat Europe was the relevant geographical market. Those submissions will betaken into consideration when the Court examines the arguments concerning the effect on trade between Member States and the adverse effect on competition putforward in connection with the plea of infringement of Article 85(1) of the Treaty(see paragraphs 1085 to 1094 below). C  Infringement of Article 190 of the Treaty 836. Asland complains that the Commission did not conduct an economic study of themarket and of the effects of the Cembureau agreement. It submits that thedefinition of the relevant market is a necessary precondition for any judgmentconcerning allegedly anti-competitive behaviour (SIV and Others v Commission,cited in paragraph 833 above, paragraph 159). 837. Asland's argument must be rejected. In recitals 6 to 14 of the contested decisionthe Commission made a detailed economic analysis of the cement market. Therelevant markets, in terms of both product and geographical scope, were definedin recital 11 of the contested decision. Moreover, there is no need to take accountof the concrete effects of an agreement once it is clear that it has as its object therestriction, prevention or distortion of competition (Joined Cases 56/64 and 58/64Consten and Grundig v Commission [1966] ECR 299, 342; Case C-227/87 SandozProdotti Farmaceutici v Commission [1990] ECR I-45, summary publication;Commission v Anic, cited in paragraph 270 above, paragraph 99; Hüls vCommission, cited in paragraph 155 above, paragraph 178; Montecatini vCommission, cited in paragraph 270 above, paragraph 122; CB and Europay vCommission, cited in paragraph 83 above, paragraphs 85 and 87; and Case T-144/89 Cockerill Sambre v Commission [1995] ECR II-947, paragraph 67). InArticle 1 of the contested decision the Cembureau agreement was in fact found toconstitute an infringement because of its anti-competitive object. 838. CBR complains that the Commission favoured a European concept of the relevantmarket in the contested decision without considering the arguments and economicstudies submitted by CBR during the administrative procedure showing that variousfactors, such as the existence of national agreements and obstacles to Franco-Belgian trade, the costs associated with transport and crossing borders, and the fearof reprisals by producers in the adjoining target market limited its naturalgeographical market. It objects in particular to the fact that the Commissionrejected the economic arguments put forward during the administrative procedurebecause there was no agreement on the economically acceptable transport distance(contested decision, recital 11, paragraph 3, second subparagraph). CBR adds thatthe Commission's argument derived from the complexity of game theory (contesteddecision, recital 11, paragraph 6, fifth subparagraph) and the various conclusionsreached by the economic studies referred to above clearly shows that it had nointention of giving serious consideration to the economic arguments put forward byCBR. CBR then complains that the Commission drew general conclusions fromthe few isolated and atypical examples to which it refers in recital 11, paragraph 4, of the contested decision. Last, as regards the price differences between MemberStates, which the Commission sees, in recital 11, paragraph 6, of the contesteddecision, as an incentive to export, CBR points out that the price differencesbetween Belgium, the Netherlands and Germany were among the lowest and thatprices changed over the years, and it claims that the figures put forward in recital9, paragraph 6, and recital 11, paragraph 6, of the contested decision in relation tothe Belgian market are not supported by the tables reproduced in Annex 9 thereto,because the tables cover only a single year or provide no information on theposition in Belgium. 839. The Court finds that in recital 11 of the contested decision the Commissionprovides a detailed and consistent account of the reasons which led it to concludethat in the present case the geographical market in question was the Europeanmarket, 'consisting of a set of juxtaposed and interdependent markets (contesteddecision, recital 11, paragraph 7, final subparagraph), and discusses the variousobservations submitted during the administrative procedure by addressees of theSO, including those submitted by CBR. 840. Thus, as regards economically acceptable transport distances, the Commission, afterpointing out that there is no unanimity on this question among European cementproducers (contested decision, recital 11, paragraph 3, first subparagraph), statesthat 'for its part [it] is not in a position to determine such distance, since it mustconfine itself to factual findings (same paragraph, second subparagraph). 841. As regards the existence of oligopolies on the various markets, the Commissionstates (contested decision, recital 11, paragraph 6, fifth subparagraph): 'The last comment concerns the existence of oligopolies in the various markets,and consequently, the fact that each operator must, before deciding to enter themarket of another, take account of the reactions of competitors and of theretaliatory measures which they might take. Without wishing to enter into gametheory and the prisoner's dilemma, ... it is not certain that each operator gainsmore by remaining on his own market, since game theory also shows that eachoperator decides to enter the others' market and risk retaliation when he considersthat his long-term advantages are greater if he is present on several markets ratherthan only one. In addition, games between oligopolists are not simple to resolve,since there are many elements of uncertainty involved, and not just the possibleretaliation of one operator or another. 842. Contrary to what CBR claims, the Commission did not, therefore, merely rejectgame theory because of its complexity. It merely intended to put its significanceinto perspective. 843. As regards the various obstacles associated with crossing borders, the Commissiontakes into consideration, in recital 11, paragraph 4, of the contested decision, the comments of the Belgian producers, who 'have referred to the great difficultiesinvolved in supplying cement to France because of the costs of waiting times atcustoms, the different weights allowed in the two countries, the different standards,etc. (see record of the hearing of 8 March 1993, Annex VII/B, pp. 7 and 8 andAnnex VIII). 844. As regards, moreover, the price differences between the Belgian market and itsneighbouring markets, the Commission observes (contested decision, recital 9,paragraph 6, second subparagraph): '... Tables 7, presented at the hearing on 2 March 1993 by the Italian industry anddrawn up on the basis of Cembureau figures (see Annex 9), which show the trendof prices in the Community countries from 1981 to 1991, indicate that, as betweenUnited Kingdom prices and German, French and Belgian prices, there was in 1981a difference of some ECU 30 a tonne (the British price being around ECU 70) andof ECU 15 to 20 a tonne in 1991, that the price difference between France,Belgium and Germany, which was almost zero in 1981, gradually widened as from1982 to reach some ECU 12 a tonne in 1986, falling back to some ECU 7 a tonnein 1991 ... 845. It should be pointed out at the outset that the mere fact that the various tables andgraphs from which the Commission extracted those trends, which are not disputedby the applicant, were not all attached to the contested decision does not constitutean infringement of the duty to state the reasons on which the decision is based. 846. As to the remainder, the Commission is not required to provide in the decision adetailed answer to all the arguments formulated during the administrativeprocedure by the various addressees of the SO. It is sufficient that the statementof reasons allows the Community judicature to exercise its power of review as tothe legality of the contested decision and provides the undertakings and associationsconcerned with the necessary information to be able to determine whether or notthe decision is well founded (Joined Cases 43/82 and 63/82 VBVB and VBBB vCommission [1984] ECR 19, paragraph 22; Joined Cases 142/84 and 156/84 BATand Reynolds v Commission [1987] 4487, paragraph 72; and Case T-44/90 La Cinqv Commission [1992] ECR II-1, paragraph 42). 847. In the present case it follows from the above account of the contested decision thatthe Commission provided the undertakings concerned and the Court with all thenecessary information to assess whether the definition of the relevant geographicalmarket which it had adopted was well founded. In those circumstances, CBR's pleaof breach of the obligation to state the reasons for the definition of thegeographical market in question must be rejected. 848. Last, Ciments Français alleges that there is a contradiction in the definition of thegeographical reference market. In its view the Commission appears to consider, in recital 11, paragraphs 2, 6 and 7 of the contested decision, that there is both aEuropean market for cement and a multitude of local markets. The cementmarket is regional. Consequently, ascribing a European dimension to the relevantmarket amounts to including in the same market undertakings which are notcurrent or potential competitors and, accordingly, to denying that there is a'geographical market. Furthermore, in finding that there is a Europeandimension to the relevant market, the Commission contradicts its decision toseparate the domestic agreements and concerted practices from the internationalagreements. 849. The Court observes that the Commission states in recital 11, paragraph 2, of thecontested decision that '[i]n terms of the relevant geographic market, the cementmarket may be seen as a set of markets, centred around the various factories,overlapping one another and covering the whole of Europe. It then explains, onthe basis of specific examples, what led it to conclude that the cement market hada European dimension (recital 11, paragraphs 3 and 4) and then to the view thatthe various factors (natural obstacles, transport costs and distances, low level ofexports, considerations of profitability, oligopolistic structure of the markets,geographical separation of the markets) put forward during the administrativeprocedure by the addressees of the SO were not susceptible of invalidating its viewthat the market in question was a European one (contested decision, recital 11,paragraphs 5 and 6). 850. From its observations the Commission (contested decision, recital 11, paragraph 7)ultimately concludes as follows: 'All the overlapping markets are interdependent on one another, and any actiontaken on one market may have an impact on the most distant markets. This isdemonstrated by the following facts. The meetings of the Cembureau HeadDelegates ..., which brought together the whole of the European industry, includingthat not directly concerned at the time, took place to ensure that the phenomenonof intra-Community trade did not spread in volume and gravity and to advise areduction in price differences between markets so as to limit export temptations. The agreements between Greek and Spanish producers within the CementMarketing Association were viewed as being fundamental to equilibrium withinEurope. The reaction to Greek exports to the United Kingdom and Italy was acollective reaction by the European industry, because it was considered thatcooperation between the entire European industry was essential to safeguard itsstability and not just that of the industry in the countries threatened. It is evident from the above that Europe is the relevant market, consisting of a setof juxtaposed and interdependent markets. 851. It is impossible to detect any contradiction in the reasons underlying the definitionof the relevant geographic market as thus presented. Nor is there any contradiction between the definition of the market in the contested decision asEuropean and the Commission's separation of the domestic objections from theinternational objections during the administrative procedure. It must be pointedout that the international objections, the only ones to which the contested decisionrelates, do not depend on the existence of the national agreements and concertedpractices which had also been called in question in the SO (see paragraphs 110 to120 above). Consistency between the SO and the contested decision 852. CBR (T-25/95) claims that in the SO the Commission maintained that the 'rulesof the game on which the members of Cembureau agreed at the meeting of HeadDelegates held on 14 January 1983 related to the Basing point system (hereinafter'BPS), but then changed its approach. Following the comments which CBR madeduring the administrative procedure concerning the legality of that system and ofthe discussions which took place at the Head Delegates meeting, the Commissionultimately took the view in the contested decision that the 'rules of the game inquestion referred to an agreement not to tranship to domestic markets. 853. Aalborg (T-44/95) claims that the object of the Cembureau agreement was not setout in sufficient detail in the SO. Nor was Aalborg aware during the administrativeprocedure that the Commission would attach major significance to the HeadDelegates meetings held on 14 January 1983 and 19 March 1984. 854. The Court points out that in the SO the Commission complained of the conclusionof the Cembureau agreement and the fixing of the rules of fair competition (points8, 9, 60 and 61) in the framework of the Head Delegates meetings. Those ruleswere not, however, the subject-matter of any complaint in the contested decision. 855. Under the heading 'Agreements and concerted practices on the home market rulethe Commission, in point 61 of the SO, made the following assessment of the factsdescribed in point 9 of the SO, which mainly related to the Head Delegatesmeeting on 14 January 1983: 'As may be seen from point 9, Cembureau and its members adopted theCembureau agreement or Cembureau principle of not transhipping to internalEuropean markets; they encouraged the agreements on exports to third countriesso as to prevent the risk of a destabilisation in Europe through the exporting ofsurplus output to the Cembureau countries; they promoted bilateral or multilateralcontacts between members so that appropriate measures could be adopted toensure that, apart from traditional or even structural inter-State trade, e.g. exportsfrom Germany and Belgium to the Netherlands, transfers of cement betweenmember countries did not have harmful consequences for the cement industry. 856. It follows that in the SO the Commission clearly indicated that in its view theCembureau agreement related to the principle of non-transhipment to domesticmarkets and the regulation of sales from one country to another and that that 'ruleof the game had been agreed at the Head Delegates meeting held on 14 January1983. The SO therefore referred in sufficient detail to the Cembureau agreementmentioned in Article 1 of the contested decision. 857. As regards Aalborg's argument that during the administrative procedure it wasunaware of the significance that the Commission was going to attach to themeetings of Head Delegates held on 14 January 1983 and 19 March 1984, theCourt finds that the SO set out in detail the facts relating to those meetings, asregards both the 'circulation of prices between Cembureau members (SO, point8) and the 'Cembureau agreement or Cembureau principle of not transhipping tointernal European markets (SO, paragraph 9(a) and (b)). Aalborg, which doesnot deny having participated, as a direct member of Cembureau, in the twomeetings in question, must therefore have been aware of the very specialimportance which the Commission attached to those meetings. 858. FIC (T-30/95) and Aalborg also claim that in the SO the Commission did not statewhether the alleged rule on non-transhipment to internal markets adopted withinCembureau was an agreement or a concerted practice. 859. The Court points out that in the SO (point 61(a)) the Commission explained that'[t]he Cembureau agreement or principle of not transhipping to internalEuropean markets (point 9) constitutes an agreement and/or a concertedpractice. Accordingly, the addressees of the international chapters of the SO,including FIC and Aalborg, were informed during the administrative procedure thatthe 'Cembureau agreement or principle of not transhipping to internal Europeanmarkets might be characterised as an agreement in the contested decision. Theywere therefore put in a position to defend themselves against such a legalcharacterisation of the conduct in question. 860. It follows that the Court must reject the various arguments alleging inconsistencybetween the SO and the contested decision in regard to the infringement referredto in Article 1 of the contested decision. The existence of the Cembureau agreement 861. CBR (T-25/95), Cembureau (T-26/95), FIC (T-30/95), ENCI (T-31/95), VNC(T-32/95), Ciments Luxembourgeois (T-34/95), Dyckerhoff (T-35/95), SFIC(T-36/95), Vicat (T-37/95), Cedest (T-38/95), Ciments Français (T-39/95),Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), BDZ (T-48/95),Unicem (T-50/95), Rugby (T-53/95), Castle (T-56/95), Heracles (T-57/95), Uniland(T-58/95), Oficemen (T-59/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL (T-62/95), ATIC (T-63/95), Titan (T-64/95), Italcementi (T-65/95), Holderbank(T-68/95), Aker (T-70/95), EUROC (T-71/95), Cementir (T-87/95), Blue Circle(T-88/95), AGCI (T-103/95) and Halkis (T-104/95) submit that the Commissioninfringed Article 85(1) of the Treaty by finding in Article 1 of the contesteddecision that there was a Cembureau agreement (A). Cembureau, Dyckerhoff,SFIC and Heidelberger contend that the finding of the infringement referred to inArticle 1 of the contested decision is based on inadequate or contradictoryreasoning, contrary to Article 190 of the Treaty (B). Some of the applicantsconcerned by the measures of 2 October 1996 and 18 and 19 June 1997 (seeparagraphs 164 to 168 above) relied, in the statements which they subsequentlylodged, on various documents which they claim would have been of use to theirdefence had they been accessible during the administrative procedure. Italcementiand Blue Circle also claim that there has been a breach of their rights of defencein that they did not have proper access to the incriminating evidence in the file (C). A  Infringement of Article 85(1) of the Treaty 862. It should be recalled that the Commission relied solely on the specific documentaryevidence referred to in recitals 18, 19 and 45 of the contested decision in order toprove the existence of the Cembureau agreement. 863. A first set of arguments put forward by the applicants concerned disputes theprobative value of the documents referred to in recital 18 of the contested decision:those documents point to the existence of a Cembureau agreement or principle ofnot transhipping to internal European markets (internal Blue Circle memoranda(contested decision, recital 18, paragraphs 2 and 3; documents 33.126/11332 to11334 and 11335 to 11337)) or to the existence of an agreement between Europeancement producers (statement made by Mr Kalogeropoulos at the Heracles boardmeeting held on 25 June 1986 (contested decision, recital 18, paragraph 5;documents 33.126/19875 to 19877)). The applicants suggest an alternative readingof the documents in question, compatible with Article 85(1) of the Treaty. Theyclaim that Cembureau never recognised the existence of a Cembureau agreementor principle (1). A second set of arguments relates specifically to the HeadDelegates meetings during which the Cembureau agreement is alleged to have beenconcluded and confirmed. The applicants state that the Head Delegates were notcompetent to conclude such an agreement and they also dispute the probativevalue of a number of documents referred to in recitals 19 and 45 of the contesteddecision. The lawfulness of the discussions held at the Head Delegates meetingsis apparent not only from the documents referred to in those two recitals but alsofrom documents which the Commission omitted to examine. A number of theapplicants further rely on specific arguments which contradict the existence of aCembureau agreement (2). A third set of arguments disputes the unlawful natureof the alleged Cembureau agreement and criticises the Commission for not seekingan alternative explanation for the low volumes of inter-State trade in cement (3). These various arguments will be examined in turn and the Court will then drawconclusions from its findings (4). 864. First, however, the Court observes that some applicants challenge the probativevalue of documents relating to conduct which is not criticised in the contesteddecision. 865. Thus Cembureau, Blue Circle, FIC and Italcementi question the probative valueof the handwritten Italcementi note on the Executive Committee meeting held on14 April 1986 (contested decision, recital 17, paragraph 9; document 33.126/3185). Blue Circle also refers to the draft record of the Executive Committee meeting heldon 9 November 1983 (contested decision, recital 17, paragraph 5; documents33.322/286 to 294). 866. Irish Cement claims that the Commission cannot infer from the draft record of theExecutive Committee meeting held on 9 November 1983 (contested decision, recital17, paragraph 5; documents 33.322/286 to 294), and in particular from what wassaid at the meeting by Mr Bertrán and Mr Van Hove, that the Cembureauagreement was confirmed at that meeting. 867. The Court finds that in order to establish the existence, the conclusion or theconfirmation of the Cembureau agreement the Commission did not rely on any ofthe documents referred to by the applicants. Those documents were referred toin recital 17, paragraphs 5 and 9, of the contested decision purely to illustrate thediscussions held between the European cement producers during the period inquestion on 'fair or healthy or proper competition. Those discussions were notthe subject-matter of a complaint in the contested decision. The argumentsconcerning the probative value of the corresponding documents therefore have norelevance to the assessment of the legality of Article 1 or of any other article of thecontested decision. 868. Heidelberger states that the handwritten notes to which the Commission refers atthe end of recital 19, paragraph 6, of the contested decision (documents33.126/11587 to 11592) give no indication of the identity of their author and arelargely illegible. That deprives them of any probative value. Furthermore, thenotes relate to the preparations for a Head Delegates meeting held on 14 January1982 and therefore have no connection with the Head Delegates meeting called inquestion in recital 19(a) of the contested decision. 869. The Court observes, however, that, as those notes are not included in thedocumentary evidence on which the Commission relied in recitals 18, 19 and 45 ofthe contested decision (see paragraphs 790 to 817 above) in order to prove theexistence of the Cembureau agreement, there is no need to examine their probativevalue in relation to the infringement referred to in Article 1 of the contesteddecision. 870. Heidelberger also claims that the conclusions which the Commission draws in theSO (p. 20, footnote 5) from the handwritten notes entitled 'Preparation Meetingof Head Delegates 7.11.84 (contested decision, recital 19, paragraph 15; document33.126/11758) relating to the existence of collaboration within Cembureau on the'restructuring and reduction of production capacities in some surplus countries arenot supported by the 'summary notes of 12 November 1984 relating to the HeadDelegates meeting held on 7 November 1984 (contested decision, recital 19,paragraph 14; documents 33.126/11754 and 11755). 871. The Court points out that in the SO the Commission, after stating that thehandwritten notes in question 'show[ed] that the restructuring and reduction ofproduction capacities in some surplus countries [had been] agreed withinCembureau, none the less went on to say that it '[did] not have any proof of suchcollaboration apart from these items of evidence and some others (SO, p. 20,footnote 5). Furthermore, the objection that there was collaboration withinCembureau on the restructuring and reduction of production capacities was notpursued in the contested decision. It follows that Heidelberger's argument isirrelevant. 1. Documents referred to in recital 18 of the contested decision 872. In recital 18, paragraphs 2 and 3, of the contested decision, headed 'TheCembureau agreement or Cembureau principle of not transhipping to internalEuropean markets, the Commission refers first of all to two internal Blue Circlememoranda, one dated 1 December 1983 (documents 33.126/11332 to 11334) andthe other undated (documents 33.126/11335 to 11337), which are the onlydocuments mentioned in the contested decision that refer expressly to aCembureau agreement or principle of not transhipping to internal Europeanmarkets. In the same recital, paragraph 5, the Commission also mentions thestatement made by Mr Kalogeropoulos, Chairman of Heracles, at the Heraclesboard meeting held on 25 June 1986 (documents 33.126/19875 to 19877), whichrefers to the existence of 'an agreement by all the European cement producersthat no one must intervene within the national frontiers of the others. TheCommission also refers (paragraph 4) to statements by Cembureau itselfconcerning the Cembureau agreement or principle (documents 33.126/11525 and13568 to 13573). 873. In its legal assessment of the conduct referred to in Article 1 of the contesteddecision the Commission relies directly on the abovementioned documents(contested decision, recital 45). The Commission regards those documents as keyevidence of the existence of the Cembureau agreement. 874. It is necessary to examine in turn the various arguments put forward by theapplicants in respect of those documents. 1.1. Internal Blue Circle memoranda 875. First, Italcementi disputes the probative value of the Blue Circle memoranda(documents 33.126/11332 to 11334 and 11335 to 11337). The memoranda set outunilateral statements by one producer, which refer neither to the parties to, nor thesubject-matter of, the alleged agreement. Cembureau maintains that the BlueCircle memoranda do not refer to the existence of a Cembureau agreement: theauthor apparently has in mind the solutions to a number of trade problems. Lafarge also disputes the probative value of those memos, on the grounds that BlueCircle is not a member of Cembureau and the author of the memoranda did notattend the Head Delegates meetings. Aalborg, Uniland and Oficemen also pointout that the author of the memoranda was not present at the Head Delegatesmeeting held on 14 January 1983. 876. The Court points out that, contrary to what Italcementi and Cembureau claim, bothinternal memoranda refer to an agreement, a principle or a policy of nottranshipping to internal European markets which the memoranda link toCembureau. 877. Furthermore, although Blue Circle is not a direct member of Cembureau, it did infact have a role within that association. It is common ground that between 1975and 1985 its chairman, Sir John Milne, acted within Cembureau as Head Delegatefor the United Kingdom cement industry before he became Chairman ofCembureau. In his capacity as Head Delegate he participated in the three HeadDelegates meetings at which the Cembureau agreement was concluded andconfirmed. Mr G. Marshall, the deputy managing director of Blue Circle,succeeded Sir John Milne as United Kingdom Head Delegate when he becameChairman of Cembureau. As regards Mr Reiss, the author of the internal memos,it is apparent from Blue Circle's answer to a written question put by the Courtwhich was lodged at the Court Registry on 12 December 1997 that when thememoranda were drafted he held the post of regional director in Blue Circle'sexport division. It is also common ground that he participated in numerousmeetings of the EPC (contested decision, recital 45, paragraph 3;documents 33.126/11339, 11417 to 11440, 11442 to 11455, 13845 to 13850, 14035to 14042, 14062 to 14085, 14094 to 14097, 14148 to 14154 and 14401 to 14418),frequently accompanied by Mr Marshall, the deputy managing director (documents33.126/11365, 11447 and 14062). Although, as Blue Circle claims, documents33.126/11417 to 11440 and 13845 to 13850 cannot be used against it because it didnot have access to them during the administrative procedure, the fact that Mr Reisswas present at various EPC meetings is sufficiently clear from the other documentsreferred to in recital 45, paragraph 3, of the contested decision. 878. In those circumstances, the Commission was entitled to take the view that the BlueCircle memoranda were 'valid evidence because of Blue Circle's role within Cembureau and Mr Reiss's role within Blue Circle (contested decision, recital 45,paragraph 3, first subparagraph). Having regard to the leading role which the BlueCircle management played within Cembureau and Mr Reiss's position within BlueCircle, it could be concluded that the author of the memoranda had, with fullknowledge of the facts, indicated that there was an agreement, a principle or apolicy of not transhipping to internal European markets and connected thatagreement, principle or policy with Cembureau. 879. It is true, however, as Italcementi maintains, that the Blue Circle internalmemoranda do not identify the parties which subscribed to the Cembureauagreement, principle or policy of not transhipping to internal European markets. It will be necessary later to consider whether the participation of the variousundertakings and associations of undertakings in the agreement referred to inArticle 1 of the contested decision is actually established. 880. Second, CBR, FIC, Ciments Français, Oficemen and Blue Circle submit that theexpressions 'Cembureau principle or 'Cembureau agreement used by the authorof the internal memoranda could in reality be 'shorthand referring to economiccircumstances which naturally limit transhipment of cement between producercountries. Ciments Français adds that the marginal nature of flows within theCommunity was the consequence of the actual features of the European cementindustry and not of an agreement between European producers. 881. That argument cannot be accepted. Words or expressions such as 'agreement,'principle or 'Cembureau policy cannot refer to an economic fact. Furthermore,if the author of the memoranda had actually been referring to an economic factwhich naturally limited the transhipment of cement he would not have mentionedthe danger that the 'Cembureau agreement would be totally broken as a resultof retaliatory measures which might be taken by a 'target country in response toBlue Circle's presence on its territory (memorandum of 1 December 1983, point4) or that the 'Cembureau policy of non-transhipment would not hold (undatedmemo; see paragraphs 809 to 812 above). 882. Third, Cementir claims that both the internal memoranda concern dumped importsfrom Eastern Europe and Spain. Blue Circle claims that they concern dumpedimports from countries which subsidise their cement production. 883. The Court finds that the Blue Circle memorandum of 1 December 1983 concerns,inter alia, dumped imports from Spain. Point 1 mentions a measure already takenagainst those imports: '[a]nti-dumping suit which if successful in 1984 may beuseless in the long term if Spain joins the EEC. 884. The undated memorandum refers to imports from East Germany and Poland. Itcannot be ruled out that those imports were dumped. 885. However, those findings are not of such a nature as to affect the Commission'sconclusion that an agreement on non-transhipment to internal European marketswas concluded within Cembureau or to preclude the possibility that both the BlueCircle internal memoranda referred to that agreement. The memos, entitled'Strategy against imports and the future of the UK cement industry and 'Importthreat, both concerned the general problem of cement imports into the UnitedKingdom. It was therefore natural that they should deal both with the problem ofimports from Cembureau countries and the problem of imports from othercountries. In any event, even imports from countries outside Cembureaurepresented a threat to the principle of non-transhipment to internal Europeanmarkets as described in the Blue Circle memos. Dumped imports threatened toincrease European production surpluses, which would then have to be channelledoutside Europe in order to safeguard the Cembureau principle of non-transhipmentto internal European markets. In that regard, the memorandum of 1 December1983 clearly stated that owing to the impossibility of finding outlets in overseasmarkets for West European surplus the principle was in danger of breaking down. Last, even dumped imports from countries which did not then belong to theCommunity could amount to a breach of the Cembureau principle of nottranshipping to internal European markets. The entire European cement industrywas represented within Cembureau. Thus the Spanish Head Delegate participatedin the Head Delegates meeting held on 14 January 1983 (contested decision, recital19, paragraph 4; document 33.126/11581) and the one held on 19 March 1984(contested decision, recital 19, paragraph 8; documents 33.126/11699 and 11700). For that reason the Commission considered that the Spanish producers were boundby the Cembureau agreement with effect from 14 January 1983, although theirparticipation did not then constitute an infringement of Article 85(1) of the Treaty(contested decision, recital 45, paragraph 11) because their conduct did notproduce any significant effects within the Community. 886. It follows that even if the Blue Circle memoranda related to problems of dumpedcement imports from Spain and Eastern Europe, such a circumstance would nothave affected the legality of Article 1 of the contested decision, because thememoranda connected the cement imports with the survival of the Cembureauagreement, principle or policy of not transhipping to internal European markets. 887. There is no factual basis to Blue Circle's contention that the memoranda concerneddumped cement imports from countries that subsidised their cement production. The problem of State aid to producers in other countries was referred to only oncein the memorandum of 1 December 1983 (point 4) and only in connection with thepossible reaction of a 'target country in which Blue Circle had decided to set upsilos as a counter-measure to cement imports from that country. 888. Fourth, FIC and Blue Circle pointed out at the hearing that the author of thememos, Mr Reiss, dealt with Blue Circle's exports. His memoranda therefore referto an agreement concerning the non-European market whose aim was to ensure that European cement exported to non-European countries was not re-importedinto Europe. FIC also stated that the use of the word 'transhipment in thememoranda corroborates that interpretation. 'Transhipping refers to 'transitcountries, that is, non-European countries. Furthermore, the reference in point4 of the memorandum of 1 December 1983 to 'non-oil producing latin economiesis to the economies of South America and thus confirms that the Cembureauagreement or principle did not concern the Community market. 889. The Court observes, first of all, that the applicants never submitted such anexplanation of the Blue Circle memoranda before the oral procedure in Cases T-30/95 and T-88/95 was opened. 890. The argument must in any event be rejected and there is no need to determinewhether it is admissible. 891. The agreement relating to the non-European market to which the applicants referwould have required the approval of traders from non-European countries whobought cement produced in Europe. Where cement produced in Europe is soldin an overseas market, the purchaser is at liberty to re-export it to the Community. In those circumstances, an agreement such as that alleged by Blue Circle and FIC,which would have involved the consent of parties outside Cembureau, would nothave been described by the author of the memoranda as the 'Cembureauagreement, principle or policy. 892. Moreover, irrespective of the reference to Cembureau, if FIC's and Blue Circle'sinterpretation were correct it would have been natural for the author of thememoranda to have described the object of the agreement to be non-transhipmentto the European market, since that agreement would have been an agreementdesigned to ensure that cement produced in Europe and exported to non-Europeancountries was not re-imported into Europe. In those circumstances, the referenceto non-transhipment to internal European markets, in the plural in thememorandum of 1 December 1983, confirms the Commission's reading of thememoranda as meaning that the Cembureau agreement, principle or policy relatedto trade within Europe. 893. Furthermore, FIC's and Blue Circle's interpretation is contradicted by the followingextract from the memorandum of 1 December 1983: 'At the moment 22 million tonnes of the West European surplus is able to bechannelled to overseas markets in need of the product but there is every likelihoodthat this figure will collapse dramatically to 15 million tonnes or less by early 1985and under that strain it is probable that the Cembureau principle of nottranshipping to internal European markets will break down. 894. If FIC's and Blue Circle's interpretation were correct, a fall in demand in theoverseas market would not have presented any problem for the Cembureauagreement. The smaller the quantities of cement imported, the lower the risk thatthe exported cement would be re-imported into the European market. Furthermore, FIC does not establish that at the material time cement imports fromSouth American countries represented a threat to the European cement industry. The reference to 'non-oil producing latin economies must therefore be interpretedas referring to latin European economies. That interpretation is borne out by thereference to cement imports from Spain in point 1 of the memorandum of 1December 1983.                                                                     895. In any event, the various interpretations suggested by Blue Circle and FIC arecontradictory, as the 'economic fact which would 'naturally limit the transhipmentof cement (see paragraph 880 above) would not prevent cement sold by Europeancement producers in overseas markets, in particular in the South American market,from being re-imported into Europe. 896. Fifth, Irish Cement and Cementir consider that the reference in the undated BlueCircle memorandum (contested decision, recital 18, paragraph 3; documents33.126/11335 to 11337) to imports from West Germany is inconsistent with theexistence of the Cembureau agreement. 897. The Court finds, however, that the existence of imports from West Germany is notsuch as to shed a different light on the express and unequivocal reference by theauthor of that memorandum to the 'Cembureau policy of not transhipping tointernal markets. Furthermore, it is clear that in the memorandum to theChairman concerning the Head Delegates meeting held on 19 March 1984(contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729)exports from Germany to the United Kingdom and Ireland, which are described asa 'hot spot, were seen as problematical (see paragraph 804 above). It musttherefore be concluded that the Cembureau agreement, principle or policy of nottranshipping to internal European markets to which the Blue Circle memorandarefer was not successful everywhere. However, the fact that an agreement is notobserved by everyone does not mean that it does not exist (see, to that effect, CaseT-347/94 Mayr-Melnhof v Commission [1998] ECR II-1751, paragraph 135). 898. Sixth, FIC observes that the author of the Blue Circle memorandum of 1 December1983 paints a very negative picture of the situation, despite the fact that thememorandum was drafted only four months before the meeting of 18 March 1984,which, on its reading of the contested decision, found that the alleged Cembureauagreement had been a success. That undermines the probative value of thedocuments in question. 899. That argument must also be rejected. The content of the documents relating to theHead Delegates meeting held on 19 March 1984 is along the same lines as that of the two Blue Circle memos. Although the notes on that meeting (contesteddecision, recital 19, paragraph 10; documents 33.126/11733 to 11737) stated that'[p]ressure from inter-member trade had slackened considerably through improvedbilateral contacts and that '[e]xports had tended to shrink, there was 'still athreat from outsiders (see paragraph 806 above). Furthermore, in thememorandum to the Chairman concerning the meeting on 19 March 1984(contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729)various 'hot spots are identified, one of which is also mentioned in the undatedBlue Circle memo, namely exports from Germany (see paragraph 897 above). Inthe same document it is also stated (see paragraph 803 above) that '[t]he gapbetween [prices in the various Cembureau countries], which is between 1 and 2,inevitably constitutes a temptation. It is therefore desirable ... to reduce that gap. The first paragraph of the Blue Circle memorandum of 1 December 1983 refersto the problem of high prices in the United Kingdom as follows: 'The one and onlyreason we are suffering imports ... is our price. ... the cause is basically our exworks price of about £40 against a large European surplus available at £17 FOBor £25 into silo in the [United Kingdom]. It is not surprising, therefore, that BlueCircle should paint a rather negative picture of the situation a few months beforethe Head Delegates meeting on 19 March 1984. 900. Seventh, and last, Cementir disputes the probative value of the undated Blue Circlememo, in particular on the ground that it is undated. 901. That argument must also be rejected. The mere fact that a document is undateddoes not mean that it cannot contain evidence of the existence of an infringement. Furthermore, the other Blue Circle memo, which is dated 1 December 1983, andthe documents relating to the Head Delegates meetings (see paragraphs 790 to 808above) make it possible to date the 'Cembureau policy of not transhipping tointernal markets referred to in the undated memo. 1.2. Statement by Mr Kalogeropoulos at the Heracles Board Meeting held on 25June 1986 902. First, CBR, FIC, Ciments Français, Lafarge, Aalborg, Heracles, Uniland, Oficemen,Irish Cement and Blue Circle claim that the statement made by MrKalogeropoulos, the Chairman of Heracles, at its Board Meeting on 25 June 1986(contested decision, recital 18, paragraph 5; documents 33.126/19875 to 19877) isnot susceptible of establishing, and even contradicts, the existence of the allegedCembureau agreement. They maintain that the statement concerns an allegedagreement which had existed for 30 years. It cannot therefore be the agreementreferred to in Article 1 of the contested decision, which is alleged to have existedsince 14 January 1983. The applicants in question submit that the statement makesno reference to Cembureau. They state that Mr Kalogeropoulos was a politicianwho had just become Chairman of Heracles and who was unfamiliar with the reality of the cement industry. In order to justify the grant of State aid to hisundertaking, he was attempting to find external reasons for the internal problemsexperienced by his undertaking, which were in fact due to certain strategic errors. 903. The Court observes that although the statement made by Mr Kalogeropoulos doesnot refer to Cembureau it contains an unequivocal reference to the existence of anagreement between European cement producers designed to protect internalmarkets. He stated that 'there ha[s] existed and continue[s] to exist an agreementby all the European cement producers that no one must intervene within thenational frontiers of the others. 904. As regards the starting date of the infringement referred to in Article 1 of thecontested decision, the Court points out that the fact that the Commission took 14January 1983 as the starting date of the infringement, rather than an earlier datein view of the 30-year period for which Mr Kalogeropoulos claims the agreementhad been in existence, does not adversely affect the applicants and does not impairthe probative value of the statement as regards the actual existence of anagreement between European cement producers. 905. In the contested decision the Commission explains that, in the absence of anyevidence other than the statement by Mr Kalogeropoulos to indicate that theCembureau agreement had lasted as long as he claimed, it 'considers that theagreement took effect on 14 January 1983, the date of the meeting at whichcertain rules of the game which it [was] in the interests of all ... to follow werediscussed (contested decision, recital 45, paragraph 6). 906. That approach by the Commission cannot be challenged. The fact that in 1986 anagreement between European cement producers not to tranship to internal marketshad been in force for some 30 years does not preclude the possibility that at theHead Delegates meeting on 14 January 1983 a concurrence of wills was re-affirmedin regard to non-transhipment to internal markets and the regulation of sales fromone country to another. 907. As regards the argument that Mr Kalogeropoulos was not familiar with the realityof the cement industry, it is not credible that he should make a statement to theboard of his undertaking without being informed of the industrial and commercialenvironment in which that undertaking operated. Furthermore, the document inquestion contains no reference to State aid to Heracles or any indication that thecriticisms which Mr Kalogeropoulos directed at the United Kingdom and Europeanproducers was intended to conceal past strategic errors. In any event, thestatement by the Chairman of Heracles does not seek to justify its earlier conduct. It outlines the company's current strategy regarding exports to the United Kingdommarket and explains why those cross-border sales provoked such sharp reactionson the part of other European producers. 908. Second, Lafarge also relied at the hearing on the document 'Exports of Greekcement to England (document 33.126/11116) of 3 October 1986, signed by MrKalogeropoulos on behalf of Heracles and by Mr Canellopoulos on behalf of Titan. Lafarge maintains that in that document Mr Kalogeropoulos denied that cementexports from Greece had been subsidised. As it contains a 'gross untruth, thatdocument undermines his credibility. It follows that the statement which he madeon 25 June 1985 cannot be regarded as having any probative value. 909. The document entitled 'Exports of Greek cement to England (document33.126/11116) is a document sent to British producers or the British authorities inwhich the Greek producers put into perspective the threat which their exportsrepresented to British producers. The Court points out that the document does notcomment on whether the Greek producers received State aid. On that point, itmerely states: 'it is beyond any doubt that the Greek cement industry possesses,by international standards, modern, high-efficiency installations, whereas its Britishcounterpart is to a large extent technologically obsolete, burns approx. 30% morefuel per ton of cement and employs twice as much staff. Consequently, Greekcompetitiveness relies on modern technology and efficiency, which were achievedwith heavy investment and hard work. The document does not state, however,whether the Greek industry received State aid to carry out those heavy investments. Lafarge's argument is therefore unsubstantiated and must be rejected. 910. Third, Cementir emphasises that the statement by the Chairman of Heracles wasmade more than three years after the alleged conclusion of the Cembureauagreement. It cannot therefore constitute evidence of the infringement referred toin Article 1 of the contested decision. 911. That argument must also be rejected. The circumstance relied on by Cementirdoes not affect the probative value of the statement as regards the existence of anagreement between all European cement producers not to tranship to homemarkets. On the contrary, the fact that the Chairman of Heracles stated in June1986 that 'there ha[s] existed and continue[s] to exist an agreement by all theEuropean cement producers that no one must intervene within the nationalfrontiers of the others is perfectly consistent with the conclusions which theCommission drew as to the unlawfulness of the purpose of the Head Delegatesmeetings held in 1983 and 1984. 912. Fourth, and last, Aalborg maintains that in his statement the Chairman of Heraclesmust have been referring to an agreement which was binding on some but not allEuropean cement producers. 913. The Court finds that in reality the statement made by the Chairman of Heraclesshows the existence of two closely connected agreements: first, the specificagreement reached in 1986 between the United Kingdom producers and a numberof other European cement producers designed to deal with the threat which exports from Greece had represented since 1986 and, second, the general and longstandingagreement between 'all European cement producers that 'no one must intervenewithin the national frontiers of the others, which explains precisely why supportwas given to the United Kingdom producers by the other West Europeanproducers in their fight against imports of cement from Greece. Aalborg'sargument must therefore be rejected. 1.3. Admission by Cembureau 914. Cembureau claims that it has never acknowledged the existence of the Cembureauagreement. Contrary to what the Commission alleges in recital 45, paragraph 4,of the contested decision, it has argued throughout the administrative procedurethat there 'is no Cembureau agreement or Principle or a fortiori any otherdocument containing implementing rules (reply provided by Cembureau in thecourse of an investigation pursuant to Article 14 of Regulation No 17; contesteddecision, recital 18, paragraph 4; document 33.126/11525). Any other commentwhich Cembureau may have made concerning the alleged Cembureau agreementwas pure speculation on its part. Ciments Français, Uniland, Oficemen andCementir also maintain that Cembureau has always denied the existence of theCembureau agreement. 915. The Court observes, however, that although Cembureau has formally denied theexistence of the Cembureau agreement, it has none the less stated in the contextof an investigation pursuant to Article 14 of Regulation No 17 (contested decision,recital 18, paragraph 4; document 33.126/11525) as follows: 'Where such an expression is used in a document, it refers not to an anti-competitive practice but to compliance with established practices and ethics thathave gradually evolved through contact with businesses and economic developmentin various countries. 916. Similarly, in response to a statement of objections pursuant to Article 15(1) ofRegulation No 17, Cembureau stated with regard to the Blue Circle memorandum of 1 December 1983 (contested decision, recital 18, paragraph 4; documents33.126/13568 to 13573): '[This document] refers simply to good neighbour rules encouraged by Cembureau. The reference to the Cembureau principle of not transhipping to internalEuropean markets relates to a type of conduct which is desired by members butdoes not in itself contain any constraint or a fortiori any penalty. The reference to a Cembureau agreement concerns the same principle, involvingestablished practices and ethics that have gradually evolved through contact withbusinesses and economic development in various countries. 917. It follows from the foregoing that Cembureau has merely denied the existence ofa formal Cembureau agreement but not the existence of a concurrence of wills onthe part of Cembureau and its members. Thus it acknowledged during theadministrative procedure that the Cembureau agreement or principle referred tocompliance with good neighbour rules which had been 'encouraged byCembureau itself and which, moreover, were 'desired by members (contesteddecision, recital 18, paragraph 4; documents 33.126/13568 to 13573). Aconcurrence of wills between an association and its members concerning goodneighbour rules or established practices and ethics constitutes an agreement withinthe meaning of Article 85(1) of the Treaty, even if the binding element of theagreement is lacking (Van Landewyck and Others v Commission, cited in paragraph717 above, paragraphs 85 and 86). 918. Cembureau cannot claim that its description of the Cembureau agreement is purespeculation on its part. Where it describes the content of the good neighbour ruleswhich it 'encouraged, it does so in full knowledge of the facts. In the light of thedocuments already examined (see paragraphs 875 to 913 above) and the documentsrelating to the Head Delegates meetings (see paragraph 929 to 1095 below), itcannot be claimed that the good neighbour rules or the established practices andethics concerned anything other than non-transhipment to internal markets. 919. The Court therefore concludes that the Commission was justified in taking the viewin the contested decision that through the periphrases which it used in the courseof an investigation pursuant to Article 14 of Regulation No 17 and in a reply to astatement of objections pursuant to Article 15(1) of Regulation No 17 Cembureau'acknowledge[s] the existence of the agreement on non-transhipment and onregulation of sales (contested decision, recital 45, paragraph 4). 1.4. Conclusions 920. It follows from all the foregoing that none of the circumstances invoked by theapplicants are such as to affect the probative value of the two internal Blue Circlememoranda, the statement by Mr Kalogeropoulos, the Chairman of Heracles, on25 June 1986, or the statements by Cembureau during the administrativeprocedure. It must be observed, on the contrary, that those documents constituteobjective and consistent evidence of the existence of an agreement betweenEuropean cement producers having as its object non-transhipment to internalmarkets and the regulation of sales from one country to another. 2. Conclusion of the Cembureau agreement at the Head Delegates meeting heldon 14 January 1983 and confirmation of that agreement at the Head Delegatesmeetings held on 19 March and 7 November 1984 921. According to the Commission, the Cembureau agreement was concluded byCembureau and its members at the meeting of Head Delegates held on 14 January1983 (contested decision, recital 45, paragraph 1). It was an agreement that restricted competition and affected trade between Member States, contrary toArticle 85(1) of the Treaty (contested decision, recital 45, paragraph 5, recital 52and Article 1). The content of the agreement was confirmed at the meetings ofHead Delegates held on 19 March and 7 November 1984 (contested decision,recital 45, paragraph 2). 922. Before considering the arguments relating to the documentary evidence on whichthe Commission's findings are based and all the other arguments relating to theHead Delegates meetings in question, the Court will consider the argument that theHead Delegates were not competent to conclude a commercial agreement. 2.1. The competence of the Head Delegates to conclude the Cembureau agreement 923. CBR, Cembureau, FIC, VNC, Dyckerhoff, SFIC, Vicat, Heidelberger, Lafarge, BDZ, Rugby, Castle, ATIC, Italcementi, Aker, EUROC and Cementir state thatthe object, structure and activities of Cembureau were perfectly legitimate andclaim that the Head Delegates were not competent to conclude an agreementcontrary to Article 85(1) of the Treaty. Under Cembureau's Articles of Associationonly decisions of the General Assembly are binding on the members of thatassociation. Lafarge states that no Cembureau organ, whether the GeneralAssembly or the Head Delegates, was authorised to adopt commercial or industrialpolicy decisions capable of binding the cement industry. VNC states that the HeadDelegates meetings were not a Cembureau organ. Those meetings were merely aforum for informal discussion. 924. The Court points out that the first subparagraph of paragraph 6 of Cembureau'sArticles of Association applicable during the period to which the contested decisionrelates states: 'Members' privileges to decide on the activities of the Association are exercised inthe General Assembly, which is constituted by representatives appointed byMembers. Before each Meeting of the General Assembly, Members shall nominatethe representative of the country who shall cast the votes. 925. The Members' representatives who cast the votes at the General Assembly arecalled 'Head Delegates. 926. That name was confirmed by Cembureau in its reply to the SO, page 7 (contesteddecision, recital 15, paragraph 4): 'As is the case with government representatives on international bodies, anddespite the fact that the title Head Delegates is not provided for in the Articles..., a person was appointed Head Delegate in order to cast votes in the GeneralAssembly. Cembureau kept an up-to-date list of such Head Delegates. 927. Although the Head Delegates were not as such an organ provided for inCembureau's Articles of Association, they were, throughout the period to which thecontested decision relates, of considerable and even predominant importance withinCembureau, since they cast the votes at its General Assembly. Furthermore, theywere the de facto representatives of the cement industry of the various Cembureaumember countries. The Head Delegates meetings were therefore a de factoframework within which an agreement such as that referred to in Article 1 of thecontested decision could be concluded. 928. The argument that neither Cembureau nor the Head Delegates were empoweredby the Articles of Association to conclude the Cembureau agreement musttherefore be rejected. Accordingly, it is necessary only to examine whether theHead Delegates actually concluded an agreement contrary to Article 85(1) of theTreaty at the meeting held on 14 January 1983 and whether that agreement wasconfirmed at the meetings held on 19 March and 7 November 1984. To accept theargument of the applicants concerned would in effect deprive Article 85(1) of theTreaty of all practical effect, since the Articles of Association of an undertaking orassociation of undertakings never permit the conclusion of agreements with anunlawful purpose. 2.2. Conclusion of the Cembureau agreement at the Head Delegates meeting heldon 14 January 1983 929. CBR, Cembureau, FIC, ENCI, VNC, Ciments Luxembourgeois, Dyckerhoff, SFIC,Vicat, Cedest, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Rugby,Castle, Heracles, Uniland, Oficemen, Irish Cement, Cimpor, SECIL, ATIC, Titan,Italcementi, Holderbank, Aker, EUROC, Cementir, Blue Circle and AGCImaintain that the documents on which the Commission relies do not prove that theCembureau agreement was concluded at the meeting of Head Delegates on 14January 1983. Their association is based on an examination of the variousdocuments relating to that meeting referred to in recitals 19 and 45 of thecontested decision. 2.1 Letter convening the Head Delegates meeting on 14 January 1983 930. Cembureau, Ciments Français, Lafarge, Irish Cement and Cementir criticise theCommission for having included, among the evidence relating to the conclusion ofthe Cembureau agreement, the letter dated 16 November 1982 from Mr Gil Braz de Oliveira convening the Head Delegates meeting on 14 January 1983 (contesteddecision, recital 19, paragraph 2; documents 33.126/11552 and 11553). 931. In recital 19, paragraph 2, of the contested decision the Commission sets out thefollowing extract from that letter: 'At the recent Executive Committee meeting on 5 November, a matter was raisedwhich, in the unanimous opinion of members, required careful consideration byHead Delegates at an exceptional meeting. The general recession affecting theindustry's domestic sales meant that cement transfers between member countriescould have harmful consequences for our industry if appropriate measures were nottaken in time as in the case, for example, of the trade between Belgium and theNetherlands which is to be regulated by a protocol shortly to be published in theOfficial Journal of the EC ... 932. In the Commission's view it follows from that letter that it was envisaged that theHead Delegates meeting on 14 January 1983 would deal with the problems raisedby trade within Europe and that it would be necessary to find 'rules of the gameto limit and regulate those transfers (contested decision, recital 45, paragraphs 1and 9, and recital 46, paragraph 2). 933. Cembureau, Ciments Français, Lafarge, Irish Cement and Cementir claim, however,that the letter convening the meeting was sent by its author, acting in a personalcapacity, only to the Danish Head Delegate (Mr Larsen) and his Irish counterpart(Mr Dempsey). The 'official letter convening the meeting of Head Delegates on14 January 1983, which was also dated 16 November 1982 (documents 33.126/11554to 11557), enclosed by Cembureau as Annex 3.3 to its application, does not includethe passage set out in recital 19, paragraph 2, of the contested decision and showsthat the purpose of the meeting held on 14 January 1983 was lawful. 934. As the applicants in question point out, there are in fact two versions of the letterconvening the meeting. The version quoted in the contested decision is signed byMr Gil Braz de Oliveira, Delegate to Cembureau's Executive Committee (contesteddecision, recital 19, paragraph 2; documents 33.126/11552 and 11553). It iscommon ground that that letter was sent to Aalborg and to Irish Cement. In thatletter Mr Gil Braz de Oliveira informed them of the proposed date of the nextHead Delegates meeting, 14 January 1983, 'at the request of the CembureauChairman, Mr Jean Bailly. In those circumstances, the applicants cannotreasonably contend that Mr Gil Braz de Oliveira wrote to them in his personalcapacity. 935. The 'official letter convening the meeting is not in any way inconsistent with thetenor of the letter from Mr Gil Braz de Oliveira. 936. Although it does not refer expressly to 'cement transfers between membercountries, the letter states that 'at the meeting of the Executive Committee andCoordinating Group last week, ... it has been made clear that the European cementmakers are facing serious problems and that 'appropriate measures need to betaken to avoid that the cement industry follows the same disastrous path of someother heavy and traditional industries in Europe. 937. Furthermore, the fact that it was envisaged that the meeting on 14 January 1983would deal in particular with cement transfers between member countries ofCembureau is confirmed by the telex which Mr Collis and Mr Dutron, Directorsof Cembureau, sent to Mr Van Hove (contested decision, recital 19, paragraph 3;document 33.126/11559) on 17 November 1982, the day after the letter conveningthe meeting was sent by Mr Gil Braz de Oliveira. 938. In that telex Mr Van Hove was asked to give his view on item 2 on the agenda,which had to read 'sufficiently clearly without giving rise to reactions. 939. Item 2 on the original agenda referred expressly to 'intra European trade and oneof its subdivisions referred to possible measures to control intratrade (contesteddecision, recital 19, paragraph 3; documents 33.126/11559 and 11580; seeparagraphs 942 to 954 below). 940. It follows from the foregoing that the arguments disputing the probative value ofthe letter from Mr Gil Braz de Oliveira convening the meeting cannot be accepted. The Court finds, on the contrary, that the letter is relevant evidence, inasmuch asit stated that the members of the Cembureau Executive Committee considered thatintra-European cement transfers could 'have harmful consequences for thecement industry and that it was necessary to convene an exceptional meeting ofHead Delegates on 14 January 1983 in order to take the 'appropriate measures. 941. A number of the applicants claim, however, that the 'appropriate measuresenvisaged concerned the basing point system, not the principle of non-shipment tointernal markets. That argument will be considered in paragraphs 977 to 987below. 2.2.2. Amendments to the agenda for the Head Delegates meeting held on 14January 1983. 942. Item 2 on the original agenda of the Head Delegates meeting held on 14 January1983 was amended following the intervention of Mr Van Hove at the request ofthe Chairman of Cembureau, Mr Bailly (see paragraphs 797 to 801 above). 943. Cembureau, FIC, Ciments Luxembourgeois, SFIC, Lafarge, Aalborg and IrishCement claim that the amendments proposed by Mr Van Hove to item 2 ('Intra European Trade) on the draft agenda for the meeting of Head Delegates on 14January 1983 were purely formal and of no significance. Those amendments werenot intended to conceal the true content of the meeting. FIC states also that theirsole aim was to tighten up the wording of the agenda for the meeting on 14January 1983 so that it might properly reflect the topic that Mr Van Hove was todeal with at the meeting. The desire to avoid 'giving rise to reactions, referredto in the request to Mr Van Hove (contested decision, recital 19, paragraph 3;document 33.126/11559), was, according to FIC and Irish Cement, the consequenceof the existence of considerable tension between certain members of Cembureau,more particularly between the Spanish and Irish members. Irish Cement adds thatat the time the Chairman of Cembureau was afraid of the reactions of the Spanishmember to the filing of an anti-dumping complaint by the Irish industry with thesupport of the CLC, of which Mr Van Hove was Chairman. 944. The Court points out that the telex of 17 November 1982 from Mr Collis and MrDutron, Directors of Cembureau, to Mr Van Hove states that the Chairman ofCembureau, Mr Bailly, 'would welcome your views on the wording of item 2 whichshould read sufficiently clearly without giving rise to reactions (contested decision,recital 19, paragraph 3; document 33.126/11559). 945. In the original draft agenda dated 16 November 1982 (contested decision, recital19, paragraph 3; documents 33.126/11559 and 11580), item 2 was drafted as follows: '2. Intra European Trade A. Analysis of situation 1. Data 2. Price situation  National Prices 3. Motivation and organisation of Crossborder Trade  Expecteddevelopments B. Possible measures to control intratrade 1. Government support against dumping 2. Justification of reasonable price agreements. Intervention ofLiaison Committee 3. Studies and Seminars  Dumping, profitability 4. Other measures. 946. The discussions thus envisaged within an association bringing together directcompetitors from all the Member States, concerning measures designed to'control or 'organise intra-European trade, were clearly likely to fall foul ofArticle 85(1) of the Treaty. In that regard, it should be pointed out that onCembureau's own admission (Case T-26/95, application, point 3.1) Mr Van Hovewas Cembureau's expert on Community competition law. 947. Next, it must be emphasised that the request to Mr Van Hove related only to item2 on the draft agenda (see paragraph 944 above). The other items on the agenda,'1. Imports from Eastern Europe, '3. World market conditions and '4.Conclusions and decisions, were vague in comparison with item 2 and did not raiseproblems under Article 85(1) of the Treaty. 948. It must be held that the amendments suggested by Mr Van Hove to item 2 on theagenda related only to wording which was liable to disclose that the participants inthe meeting of 14 January 1983 pursued an anti-competitive objective. 949. By telex dated 17 November 1982 (contested decision, recital 19, paragraph 3;document 33.126/11558) Mr Van Hove suggested as follows: 'The following words contained in your telex of 17 November must be removedfrom any official document: ... Organisation of Crossborder Trade ... Control Intratrade ... Justification of reasonable price agreements ... 950. The amendments suggested by Mr Van Hove and adopted in the final agenda (seeparagraphs 797 to 801 above) were therefore designed to eliminate the risk that theagenda would reveal the true content of the discussions which were to take placebetween the Head Delegates. 951. Furthermore, other documents bear witness to the same desire by Cembureau toconceal the true content of the meeting of Head Delegates held on 14 January1983. The draft introductory statement by the Chairman for the Head Delegatesmeeting on 14 January 1983 (contested decision, recital 19, paragraph 5; documents33.126/11583 to 11585) states that '[n]eedless to say there will be no minutes of thismeeting, while the memorandum on the structure of the meeting (contesteddecision, recital 19, paragraph 6; documents 33.126/11578 and 11579) states'13.15/13.30  Close of meeting  No minutes (see paragraphs 962 to 976 below). 952. The argument that tension existed between the Spanish and Irish producers owing,in particular, to alleged dumping by the Spanish producers, must be rejected. All the references to dumping in the original draft were retained in the agendaadopted following the amendments suggested by Mr Van Hove. Moreover, thelatter amendments were unlikely to have a more beneficial effect on relationsbetween the Spanish and Irish producers than the original draft agenda. 953. The Court must also reject FIC's argument that the amendments to item 2 madeat Mr Van Hove's suggestion were intended to give a correct description of thetopic that Mr Van Hove was to deal with. Neither the original draft, the suggestedamendments nor the final agenda mentioned the titles of the reports to be givenat the meeting or a fortiori the various speakers. 954. It follows from all the foregoing that the Commission was justified in taking theview that the amendments to the agenda of the meeting held on 14 January 1983aimed to conceal the true content of the scheduled discussions, which related inparticular to measures to control the intra-European cement trade (contesteddecision, recitals 19, paragraph 3, 45, paragraph 1, and 65, paragraph 5). 2.2.3. Content of the documents relating to the conduct of the Head Delegatesmeeting on 14 January 1983 955. First, CBR, Cembureau, FIC, Ciments Luxembourgeois, Dyckerhoff, Heidelberger,Lafarge, Aalborg, Castle, Heracles, Aker, EUROC, Cementir and AGCI claim thatit is apparent from the draft introductory statement of the Chairman for the HeadDelegates meeting of 14 January 1983 (contested decision, recital 19, paragraph 5;documents 33.126/11583 to 11585) that the object of that meeting was not to decideupon particular collective conduct on the market or to prescribe such conduct tothe direct and indirect members of Cembureau. Far from establishing the existenceof the Cembureau agreement, the draft introductory statement proves that no suchagreement existed. In that regard, the applicants refer to the following extract fromthat document: 'Our objective is not of course to take collective decisions here. 956. Cembureau also refers to the document entitled 'Meeting of Head Delegates,Paris, 14 January 1983  Notes for the [Chairman] (contested decision, recital 17,paragraph 3; documents 33.126/11630 to 11633), in particular to point 4, entitled'Questions for consideration by Executive Committee, which, it claims, confirmsthat no decision or specific action was adopted at the meeting of 14 January 1983. 957. FIC also states that none of the documents relating to the Head Delegatesmeetings refers to or mentions the establishment of an agreement not to transhipto internal markets. 958. The Court observes that, for there to be an agreement within the meaning ofArticle 85(1) of the Treaty, it is sufficient for the undertakings in question to haveexpressed their joint intention to conduct themselves on the market in a specific way (judgments cited in paragraph 270 above, Commission v Anic, paragraph 130,and Montecatini v Commission, paragraph 162; Case T-141/89 Tréfileurope vCommission [1995] ECR II-791, paragraph 95). Thus the Community judicaturehas taken the view that a 'gentlemen's agreement constitutes an agreement withinthe meaning of Article 85(1) of the Treaty (ACF Chemiefarma v Commission, citedin paragraph 643 above, paragraphs 106 to 114, and Tréfileurope v Commission,paragraph 96). An agreement does not therefore have to be binding in order tobe classified as an agreement within the meaning of Article 85(1) of the Treaty. 959. In the present case the Chairman stated in his draft introductory statement for themeeting of Head Delegates on 14 January 1983: 'Our objective is ... to identify possible solutions capable of modifying marketdevelopments and to propose ... certain rules of the game which it is in theinterests of all of us to follow. 960. Even if the Chairman did not thus propose that formal decisions or a formalagreement be adopted within Cembureau, he expressed the wish that thoseparticipating in the meeting should agree on 'rules of the game. Where economicoperators establish 'rules of the game for their conduct on the market, then, inthe light of the case-law cited in paragraph 958 above, that undeniably constitutesan agreement within the meaning of Article 85(1) of the Treaty. 961. As regards Cembureau's argument based on point 4 of the document entitled'Meeting of Head Delegates, Paris, 14 January 1983  Notes for the [Chairman],the Court points out that the questions for consideration by the ExecutiveCommittee related to 'imports from Eastern Europe and 'world marketconditions, which correspond to items 1 and 3 of the agenda of the HeadDelegates meeting on 14 January 1983. However, the passage from the documententitled 'Meeting of Head Delegates, Paris, 14 January 1983  Notes for the[Chairman] invoked by the applicant contains no reference to the ExecutiveCommittee in relation to point 2 of the agenda, entitled 'Intra-European Trade,which confirms that the Head Delegates themselves took 'appropriate measuresat their meeting on 14 January 1983 to resolve the problems associated with tradein cement between member countries of Cembureau. 962. Second, CBR, Cembureau, FIC, Heidelberger, Lafarge, Aalborg, Irish Cement,Cementir and Blue Circle claim that the Commission cannot conclude from thepassage in the draft introductory statement for the Head Delegates meeting on 14January 1983, in which the Chairman states that there will be no minutes of themeeting, that the participants intended to shroud their actions and/or decisions insecrecy and that, accordingly, the purpose of the meeting was unlawful. 963. CBR, Cembureau and Irish Cement claim that the preparatory nature of the draftintroductory statement by the Chairman deprives it of any evidential value. 964. The Court points out that it is common ground (Cembureau's application in CaseT-26/95, point 2.5) that the draft introductory statement was drawn up by directorsof Cembureau, Mr Dutron and Mr Collis. There is no reason to conclude that itdid not reflect the views of Mr Bailly, the Chairman of Cembureau. On thecontrary, it is apparent from the telex dated 17 November 1982 from Mr Collis andMr Dutron to Mr Van Hove (contested decision, recital 19, paragraph 3; document33.126/11559) that there was close collaboration between the Chairman ofCembureau and the authors of the Chairman's draft introductory statement inpreparation for the meeting on 14 January 1983. The telex states: 'Mr Baillywould welcome your views on the wording of item 2 which should read sufficientlyclearly without giving rise to reactions (contested decision, recital 19, paragraph3; document 33.126/11559). Since Mr Dutron and Mr Collis normally drafted theminutes of meetings organised within the framework of Cembureau, and inparticular of meetings of the Executive Committee (Cembureau's application inCase T-26/95, points 2.5 and 2.15), it must be accepted that the passage in the draftintroductory statement in which it was stated that there would be no minutes of themeeting reflected the intention of the Chairman of Cembureau. Since it has notbeen shown that formal minutes of the meeting were none the less taken (seeparagraphs 970 to 976 below), the appropriate conclusion is that the Chairman ofCembureau did in fact announce at the meeting on 14 January 1983 that therewould be no minutes of the meeting and that that announcement received the, atleast tacit, approval of the participants. 965. Heidelberger and Aalborg claim that the words of the Chairman at issue can beexplained by the fact that it was not envisaged that any decisions would be adopted. 966. That argument must be rejected. It follows from various documents (letter fromMr Gil Braz de Oliveira convening the meeting (contested decision, recital 19,paragraph 2; documents 33.126/11552 and 11553); 'official letter convening themeeting of Head Delegates on 14 January 1983 (documents 33.126/11554 to11557); draft introductory statement by the Chairman (contested decision, recital19, paragraph 5; documents 33.126/11583 to 11585)) that the meeting of HeadDelegates on 14 January 1983 was an extraordinary meeting designed to deal withextremely serious problems, in particular those associated with trade in cementbetween member countries of Cembureau. The purpose of the meeting was toestablish 'rules of the game aimed at 'modifying market developments (draftintroductory statement by the Chairman). Moreover, even assuming that it was notenvisaged that decisions would be taken at the meeting, that circumstance wouldnot have explained why minutes of the meeting were not to be taken. The minutesof a meeting are not confined to reproducing the decisions taken at the meeting,but normally reflect the content of the various contributions to the meeting. 967. Cembureau and Irish Cement state that the Head Delegates meetings were of aninformal nature in comparison with those of the Executive Committee, at the endof which formal and detailed minutes were always taken on the basis of tape recordings. In announcing that there would be no minutes of the meeting held on14 January 1983, the Chairman therefore merely wished to indicate that themeeting was of a different nature from a meeting of the Executive Committee. Lafarge maintains that in reality the Chairman's announcement reflected the desireto reduce, by not expressly acknowledging it, the tension within Cembureau causedby the problems of dumping associated, in particular, with imports from Spain andEast Germany. 968. The Court must, however, also reject the explanations based on the informal natureof the meeting of 14 January 1983. Unlike in the case of the meeting of 14 January1983, the other Head Delegates meetings referred to in the contested decision werethe subject of 'notes on [the] meeting or 'summary notes (notes on the meetingof Head Delegates on 19 March 1984 (contested decision, recital 19, paragraph 10;documents 33.126/11733 to 11737); 'summary notes dated 12 November 1984relating to the meeting of Head Delegates on 7 November 1984 (contesteddecision, recital 19, paragraph 14; documents 33.126/11754 and 11755)). 969. Similarly, as regards Lafarge's explanation that there were tensions withinCembureau, the Court points out that the references at the Head Delegatesmeetings on 19 March and 7 November 1984 to the tension caused by exports fromSpain and East Germany did not prevent 'notes on [the] meeting or 'summarynotes from being drawn up. 970. Next, Cembureau, FIC, Aalborg, Irish Cement, Cementir and Blue Circle claimthat, contrary to what the Commission alleges, one or more minutes of the HeadDelegates meeting of 14 January 1983 exist. That shows that what the Chairmanproposed in his draft introductory statement was not put into effect. 971. Cembureau, FIC, Irish Cement and Blue Circle rely in that regard on the document'Meeting of Head Delegates, Paris, 14 January 1983  Notes for the [Chairman](contested decision, recital 17, paragraph 3; documents 33.126/11630 to 11633),drawn up on 18 January 1983 by Mr Collis, the Director of Cembureau. Cembureau, FIC, Ciments Français and Irish Cement also refer to a five-pagedocument called the 'Cimpor Note in the contested decision, which was alsodistributed to the participants in the meeting of the Executive Committee ofCembureau held on 25 March 1983 (contested decision, recital 17, paragraph 2;documents 33.322/308 to 312). Aalborg claims that minutes of the Head Delegatesmeeting held on 14 January 1983 exist and refers to an untitled document(contested decision, recital 17, paragraph 3; documents 33.126/11617 to 11629). Cembureau maintains that there is a reference to the meeting of 14 January 1983in the minutes of the meeting of the CLC held on 17 March 1983 (annex 3.17 tothe application in Case T-26/95). Cementir merely states that minutes of themeeting exist, without referring to any specific document. 972. The Court points out that there are two documents that refer to the intention notto take minutes of the meeting of Head Delegates on 14 January 1983. Like thepassage in the Chairman's draft introductory statement (see paragraph 962 above),the memorandum on the structure of the meeting of 14 January 1983 states:'13.15/13.30  Close of meeting  No minutes. 973. Furthermore, none of the documents referred to in paragraph 971 above can beregarded as official minutes of the meeting. The document entitled 'Meeting ofHead Delegates, Paris, 14 January 1983  Notes for the [Chairman], contains, asits title indicates, notes for the attention of the Chairman of Cembureau. It doesnot therefore constitute minutes of the Head Delegates meeting intended for thoseparticipating in the meeting. Second, contrary to what Cembureau claims, theminutes of the meeting of the CLC held on 17 March 1983 do not contain anyreference to the discussions at the meeting of 14 January 1983. The untitleddocument to which Aalborg refers, although its content largely corresponds to the'Notes for the [Chairman], contains no express reference to the Head Delegatesmeeting on 14 January 1983 and cannot therefore be regarded as official minutesof that meeting. As regards the 'Cimpor note, it contains only a handwrittenreference to the Head Delegates meeting on 14 January 1983 and it is commonground that it was distributed at the meeting of the Executive Committee on 25March 1983. Had they existed, the official minutes of the meeting of HeadDelegates of Cembureau would have been distributed in an different way, that isto say, to the Head Delegates themselves, and Cembureau, or a member ofCembureau, would therefore have been in a position to produce a document thusdistributed. 974. CBR admits that there are no formal minutes of the Head Delegates meeting heldon 14 January 1983. None the less, a number of documents reveal the content ofthe presentations made at that meeting. Even in the absence of a reliabletranscript of the report on the basing point system given at the meeting on 14January 1983, the document on the basis of which the report was given, namely thenotes of Mr Van Hove (contested decision, recital 17, paragraph 3; documents33.126/11602 to 11613) was circulated among the members of Cembureau. TheCommission also followed the same practice at its hearings, for example at thehearings in March 1993, when it distributed documents relating to the reports ofProfessor Encaoua and the expert witness, Mr Bensaid, and called them 'minutesof the hearing. 975. The Court points out that CBR itself admits that the basing-points system was notthe only topic discussed at the Head Delegates meeting on 14 January 1983 (replyin Case T-25/95, point 19). Mr Van Hove's notes cannot therefore be regarded aseven informal minutes of the meeting. 976. On the basis of all the foregoing, it must be concluded that the announcement thatthere would be no minutes of the meeting of Head Delegates on 14 January 1983, as evidenced by the draft introductory statement for that meeting and by thememorandum on the structure of the meeting, was made at the Head Delegatesmeeting on 14 January 1983 and received the at least tacit approval of theparticipants at the meeting. Since the other Head Delegates meetings referred toin the contested decision, that is to say, those held on 19 March and 7 November1984, gave rise to 'notes of [the] meeting or 'summary notes, and since theagenda of the meeting of 14 January 1983 was subject to amendments which aimedto conceal the true content of the discussions (see paragraph 954 above), theCommission was justified in taking the view that the absence of minutes of themeeting of 14 January 1983 reflected the intention of the participants to shroudtheir actions and/or decisions in secrecy and, accordingly, the illicit purpose of themeeting in question (contested decision, recitals 19, paragraph 3, and 65, paragraph5). 977. Third, CBR, Cembureau, FIC, Dyckerhoff, Ciments Luxembourgeois, SFIC, Vicat,Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Castle, Heracles,Oficemen, Irish Cement, Cimpor, SECIL, Titan, Italcementi, Aker, EUROC,Cementir, Blue Circle and AGCI stress that the subject-matter of the discussionsat the meeting of 14 January 1983 was lawful. Thus CBR, Cembureau, FIC,Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem,Castle, Heracles, Oficemen, Irish Cement, Cimpor, SECIL, Titan, Italcementi,Aker, EUROC, Cementir and AGCI maintain that the participants in the meetingin question sought solutions, such as the basing point system, which would, giventhe background of recession in the European cement industry, ensure conditionsof healthy competition, compatible with the rules of the Treaty. The discussionsconcerned, in particular, the possible introduction of a general basing point systemcomparable with that notified to the Commission on 16 July 1981 by the Belgianand Netherlands cement producers, which had been favourably received. CBR,Cembureau, FIC, Dyckerhoff, SFIC, Vicat, Ciments Français, Heidelberger,Lafarge, Aalborg, Unicem, Castle, Heracles, Irish Cement, Cimpor, SECIL, Aker,EUROC, Cementir and Blue Circle add that at the meeting of 14 January 1983consideration was given to the problems caused by imports of cement  frequentlydumped  from countries which were not members of the Community, in particularSpain and East European countries, and also to the preparation of an anti-dumpingcomplaint. SFIC and Unicem also maintain that the Head Delegates meeting on14 January 1983 also concerned the protection of members against importssubsidised by a Member State. 978. In support of their arguments the following applicants refer, not only to the letterfrom Mr Gil Braz de Oliveira convening the meeting of 14 January 1983 (contesteddecision, recital 19, paragraph 2; documents 33.126/11552 and 11553) and thememorandum on the structure of the meeting (contested decision, recital 19,paragraph 6; documents 33.126/11578 and 11579), but also to a number of otherdocuments:  Ciments Français, Heracles, Irish Cement, Cementir and Blue Circle: the'Cimpor note distributed to the participants in the Cembureau ExecutiveCommittee held on 25 March 1983 (contested decision, recital 17, paragraph2; documents 33.322/308 to 312);  Cembureau, Lafarge, Irish Cement and Unicem: the document entitled'Meeting of Head Delegates, Paris, 14 January 1983  Notes for the[Chairman] (contested decision, recital 17, paragraph 3; documents33.126/11630 to 11633);  Cembureau (annex 3.17 to its application) and Aalborg (annex 13 to itsapplication): draft minutes of the meeting of the CLC held on 17 March1983;  Aalborg and Unicem: untitled document relating to the Head Delegatesmeeting held on 14 January 1983 (contested decision, recital 17, paragraph3; documents 33.126/11617 to 11629);  Cembureau (annex 3.1 to its application), Irish Cement (point 3.2.5.2.1. ofits application) and Cementir (annex 14 to its application): draft minutes ofthe meeting of the Executive Committee held on 5 November 1982;  Cembureau (annex 3.16 to its application) and Irish Cement (paragraph3.2.5.2.2. of its application): draft minutes of the meeting of the ExecutiveCommittee held on 25 March 1983;  Cembureau and Irish Cement: letter from Irish Cement to Cembureaudated 5 January 1983 stating that an anti-dumping complaint had beensubmitted (contested decision, recital 19, paragraph 6; document33.126/11572);  Cembureau, Unicem, Cementir and Blue Circle: data distributed at theHead Delegates meeting held on 14 January 1983 (information on prices,production and volumes of exports of a number of countries in EasternEurope and the Middle East; tables relating to 'Imports from EasternEurope, to 'Domestic Prices (taxes excluded) and to 'Member tradedata: imports (intra-trade); contested decision, recital 19, paragraph 6;documents 33.126/11593 to 11601);  Unicem: document entitled 'Preparatory note for the Head Delegatesmeeting on 14 January 1983 (contested decision, recital 16, paragraph 2;document 33.126/11590) and Mr Van Hove's notes for the Head Delegatesmeeting on 14 January 1983 (contested decision, recital 17, paragraph 3;documents 33.126/11602 to 11613);  Cembureau: letter dated 7 January 1983 from Cembureau to the HeadDelegates concerning the meeting on 14 January 1983 (annex 3.9 to itsapplication) and letter dated 28 December 1982 from Cembureauconcerning the Head Delegates meeting on 14 January 1983 (annex 3.7 toits application), with which the final draft agenda of the meeting of 14January 1983 was enclosed;  FIC (annex 15 to its application): letter dated 18 February 1983 from theChairman of the CLC and of the FIC in preparation for the 88th meetingof FIC's Board. 979. It is clear from the letter from Mr Gil Braz de Oliveira convening the meeting andfrom the amendments to the agenda of the meeting of 14 January 1983 that thatmeeting was convened, in particular, in order to discuss intra-European transfersof cement which could have 'harmful consequences for the cement industry, sothat 'appropriate measures might be taken (contested decision, recital 19,paragraph 2; documents 33.126/11552 and 11553) in order to 'control intratrade(contested decision, recital 19, paragraph 3; document 33.126/11559). 980. The draft introductory statement by the Chairman for the meeting of 14 January1983 (contested decision, recital 19, paragraph 5; documents 33.126/11583 to 11585)confirms that it was envisaged that 'trade between members would be examined. It is apparent from that draft statement that it was necessary to assess 'the risksentailed by an increase in certain imports coupled with a sharp reduction in certainprices, before this phenomenon has had time to spread in extent and gravity. Thepurpose of the meeting was to 'identify possible solutions capable of modifyingmarket developments and to propose, at least in regard to principles, certain rulesof the game which it [was] in the interest of [all those participating in the meeting]to follow. The draft introductory statement went on: 'What we then expect ofyou is that this exchange of views encourages you to spread words of wisdomaround you and that, each time it is necessary, multi- or bi-lateral discussions areheld, as and when the need arises. 981. According to the Commission, the 'rules of the game which it was 'in theinterests of all the cement producers to 'follow were non-transhipment to homemarkets and the regulation of sales from one country to another, that is to say,market-sharing (contested decision, recital 45, paragraphs 1 to 6 and 9). 982. The correctness of the Commission's interpretation is shown by the body ofevidence referred to in recitals 18, 19 and 45 of the contested decision and, inparticular, by the following: the internal Blue Circle memoranda (contesteddecision, recital 18, paragraphs 2 and 3; documents 33.126/11332 to 11334 and11335 to 11337; see paragraphs 875 to 901 above); the statement of MrKalogeropoulos, the Chairman of Heracles, dated 25 June 1986 (contested decision,recital 18, paragraph 5; documents 33.126/19875 to 19877; see paragraphs 902 to 913 above); Cembureau's admission (contested decision, recital 18, paragraph 4;documents 33.126/11525 and 13568 to 13573; see paragraphs 914 to 919 above); thedesire of the participants in the meeting held on 14 January 1983 to shroud theiractions and/or decisions in secrecy, as is apparent from the draft introductorystatement by the Chairman for that meeting (contested decision, recital 19,paragraph 5; documents 33.126/11583 to 11585; see paragraphs 962 to 976 above)and the amendments to the agenda of that meeting (contested decision, recital 19,paragraph 3; documents 33.126/11558, 11559 and 11656; see paragraphs 942 to 954above); and also the documents relating to the Head Delegates meeting held on19 March 1984 (see paragraph 1004 to 1027 below). 983. It should be observed that the latter meeting also concerned, in particular, thesituation on the European market. 984. Thus the memorandum to the Chairman regarding the meeting of 19 March 1984(contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729)and the notes on that meeting (contested decision, recital 19, paragraph 10;documents 33.126/11733 to 11737) mention as item 2 on the agenda: 'Situation onthe European market. The memorandum to the Chairman refers to a numberof 'hot spots, namely '[e]xports from Germany to the United Kingdom andIreland, [e]xports from France to Germany, [e]xports from Spain to Ireland and theUnited Kingdom and ... exports from Italy to Switzerland. The same documentreports that: 'The gap between [prices in the various countries] which is between1 and 2 inevitably constitutes a temptation. It is therefore desirable gradually toreduce the gap, essentially by increasing the lowest prices ... and also by moderatinghigh price trends. As regards the notes on the meeting, they conclude: 'Pressurefrom inter-member trade had slackened considerably through improved bilateralcontacts. Exports had tended to shrink but there was still a threat from outsiders. It had earlier been stated in the notes that 'a visual presentation of price rangeswas an effective means of highlighting potential causes of conflict. 985. It is, therefore, clear from that evidence that the Head Delegates' objective was toestablish 'rules of the game in order to 'control intratrade. The purpose ofexchanging price information was to place the 'potential causes of conflict intoperspective. Exports which had none the less taken place, apart from 'traditionalor even structural inter-state trade, e.g. exports from Germany and Belgium to theNetherlands (contested decision, recital 19, paragraph 9; documents 33.126/11728and 11729), or, in other words, controlled trade, were, described as 'hot spots. The objective of reducing cement exports between the member countries ofCembureau was to be achieved through 'improved bilateral contacts (contesteddecision, recital 19, paragraph 10; documents 33.126/11733 to 11737), a measuresuggested by the Chairman of Cembureau in his draft introductory statement forthe meeting of 14 January 1983 to ensure that the 'rules of the game werefollowed. 986. The documents to which the applicants refer (see paragraph 978 above), are onlycapable of showing that the basing point system and the problems of imports fromEastern Europe and Spain were also discussed at the meeting held on 14 January1983, a fact which the Commission has never disputed (contested decision, recital19, paragraphs 2 to 15). They do not show that the discussions were limited tothose two topics. Accordingly, they do not shed a different light on the body ofdocumentary evidence examined in paragraphs 979 to 985 above, which shows thatat the meeting on 14 January 1983 the participants agreed on the principle of non-transhipment to home markets and the regulation of sales from one country toanother. 987. Last, SFIC and Unicem adduce no evidence whatsoever to support their contentionthat the Head Delegates meeting on 14 January 1983 also dealt with the protectionof producers against imports subsidised by a Member State. In any event, the factthat the discussions may have also related to subsidised imports is not such as toshed a different light on the body of documentary evidence examined in paragraphs979 to 985 above. 988. Fourth, Dyckerhoff, Irish Cement and Blue Circle maintain that it is clear from the'Cimpor note distributed to the participants in a meeting of the ExecutiveCommittee of Cembureau on 25 March 1983 that the participants in the meetingon 14 January 1983 evidently wished to comply with Articles 85 and 86. In thatregard, Dyckerhoff, Irish Cement, and FIC also refer to the document entitled'Meeting of Head Delegates, Paris, 14 January 1983  Notes for the [Chairman],which was written on 18 January 1983 by Mr Collis, a Director of Cembureau. SFIC submits that Mr Van Hove's presence at the meeting held on 14 January1983 confirms that the participants in the meeting intended to comply with theCommunity competition rules. 989. The Court notes that both documents in question state that 'Articles 85 and 86concerning competition policy are clear, and no actions which contravene thesearticles can be envisaged. However, neither document can be regarded as theofficial minutes of the meeting held on 14 January 1983. Even if it wereestablished that the matter had been considered at the meeting, that would notmake it possible to discount the body of specific documentary evidence, gatheredtogether in the contested decision (see paragraphs 979 to 985 above), which showsthat the Head Delegates agreed at that meeting not to tranship to home marketsand to regulate sales from one country to another, and therefore concluded anagreement within the meaning of Article 85(1) of the Treaty with an anti-competitive object. Thus, far from demonstrating the lawfulness of the discussionswhich took place at the Head Delegates meeting, the documents relied on are ofsuch a kind as to demonstrate the deliberate nature of the infringement. 990. Fifth, Cembureau and Lafarge claim that, according to the Chairman's draftintroductory statement for the meeting of 14 January 1983, Cembureau's role wasto be limited to providing special assistance in finding the necessary documentation. 991. The Court points out that the draft introductory statement is intended to be moreprecise than those two applicants make out, since it is stated that Cembureau's rolewould be limited to providing documentation 'for the time being ('à ce moment),that is to say, on each occasion that the participants deemed it necessary to holdmulti- or bi-lateral discussions to ensure that the agreed rules of the game werefollowed. That reference to Cembureau's future role in subsequent multi- or bi-lateral discussions cannot conceal either the role which Cembureau played inorganising the meeting held on 14 January 1983 or the manifestation at thatmeeting of a concurrence of wills on the rule of non-transhipment to home marketsand the regulation of sales from one country to another. 992. Sixth, FIC and SFIC stress that there is a distinction between trade betweenmembers of Cembureau and intra-Community trade. The documents on which theCommission relied in the contested decision to demonstrate the existence of thealleged Cembureau agreement relate to trade between members of Cembureau,not to intra-Community trade. 993. The Court finds that the documents referred to in recitals 19 and 45 of thecontested decision contain no evidence that the discussions on trade betweenmembers did not relate to intra-Community trade. On the contrary, it is clear fromthe 'hot spots identified in the memorandum to the Chairman concerning theHead Delegates meeting on 19 March 1984 and from the notes on that meetingthat the discussions did in fact relate to intra-Community trade (see paragraph 984above). The argument must therefore be rejected. 994. Seventh, Cembureau, Aalborg, Irish Cement and Cementir state that theCommission did not consider that the discussions at the Head Delegates meetingon 30 May 1983 were unlawful, even though that meeting had the same purposeas the meeting of 14 January 1983. Cembureau and Aalborg refer in that regardto the letter of 5 April 1983 convening the meeting of 30 May 1983 (document33.126/11643). Irish Cement refers to the minutes of that meeting (annex 3.20 toits application). They claim that the discussions on 14 January 1983 shouldtherefore also be considered lawful. 995. The Court observes that the letter convening the meeting of 30 May 1983 statedas follows: 'The executive committee has decided that a special meeting of headdelegates be held during the general assembly in Kerkyra to up-date the situationin connection with the questions examined at the meeting on 14 January 1983. The draft agenda for that meeting (document 33.126/11655) included three items:'1. Imports from Eastern Europe, 2. World markets and 3. Other questions. 996. The fact that there is no evidence that the principle of non-transhipment to internalEuropean markets was discussed at the Head Delegates meeting on 30 May 1983does not necessarily mean that there were no such discussions. Having regard tothe Head Delegates' intention to shroud their actions and/or decisions on thatsubject in secrecy (see paragraph 976 above), it cannot be ruled out that discussionson intra-Community trade took place in the context of the discussions relating tothe item on the agenda '3. Other questions. In particular, even if such discussionshad not taken place, that would provide no grounds for excluding the specificdocumentary evidence examined in paragraphs 979 to 985 above and referred toin recitals 18, 19 and 45 of the contested decision, from which it is apparent thatat the meeting of 14 January 1983 a concurrence of wills emerged as to theprinciple of non-transhipment to home markets and the regulation of sales fromone country to another. 997. Eighth, Dyckerhoff, Heracles and Titan maintain that the absence of any reference,in the various documents relied on by the Commission in connection with the HeadDelegates meetings held on 19 March and 7 November 1984, to an agreementconcluded on 14 January 1983 contradicts the claim that the Cembureau agreementwas concluded at the meeting on 14 January 1983. CBR, FIC, Heidelberger,Lafarge and AGCI assert that the discussion of 'hot spots at the meeting held on19 March 1984 (memorandum to the Chairman for the Head Delegates meetingon 19 March 1984) also contradicts that claim. 998. That argument must be rejected. The Commission has never claimed that a formalCembureau agreement was concluded at the meeting on 14 January 1983. TheCembureau agreement to which it refers is an informal concurrence of wills thatconstitutes an agreement within the meaning of Article 85(1) of the Treaty (see thecase-law cited in paragraph 958 above) on 'non-transhipment to home markets andthe regulation of sales from one country to another, i.e. market-sharing (contesteddecision, recital 45, paragraph 9). It is unequivocally clear from the specificdocumentary evidence referred to in paragraphs 979 to 985 above and examinedin recitals 18, 19 and 45 of the contested decision that this concurrence of willsemerged at the meeting on 14 January 1983. The absence of any reference to thatconcurrence of wills in the documents relating to the meetings held on 19 Marchand 7 November 1984 does not suffice to shed a different light on that specificdocumentary evidence. 999. As regards the reference to 'hot spots, it is apparent from the memorandum tothe Chairman for the Head Delegates meeting on 19 March 1984 that trade incement between the member countries of Cembureau, with the exception oftraditional or even structural inter-state trade, was described as a 'hot spot. Thefollowing were thus identified as 'hot spots: '[e]xports from Germany to theUnited Kingdom and Ireland, [e]xports from France to Germany, [e]xports fromSpain to Ireland and the United Kingdom [and] ... exports from Italy toSwitzerland. These 'hot spots do not shed a different light on the body of documentary evidence gathered by the Commission showing that the Cembureauagreement was concluded at the meeting held on 14 January 1983. They do notshow that there was no Cembureau agreement, but merely that the rule of thegame concerning non-transhipment to home markets and the regulation of salesfrom one country to another was not universally successful. The fact that anagreement is not observed by everyone does not mean that it does not exist (Mayr-Melnhof, cited in paragraph 897 above, paragraph 135). 1000. Ninth, Dyckerhoff submits that two facts contradict the argument that anagreement not to tranship to home markets was concluded on 14 January 1983:  the fact that at the meeting on 19 March 1984 the Chairman of Cembureauconsidered it 'desirable gradually to reduce the gap between extremes, bywhich he was referring to the prices in force in the various membercountries of Cembureau (memorandum to the Chairman); and  the fact that at that same meeting a number of participants considered thatit was 'pointless to continue the discussion within Cembureau (notes onthe meeting, dated 2 April 1984). 1001. Like Dyckerhoff, Aalborg states that the participants in the meeting held on 19March 1984 considered it pointless to discuss intra-European trade in that forum(notes on the meeting, dated 2 April 1984). 1002. The Court points out that Dyckerhoff cannot claim that the Chairman would havehad no further need to express the desire that price gaps be gradually reduced ifthe Cembureau agreement had in fact been concluded on 14 January 1983: thatagreement does not concern price-fixing arrangements between European cementproducers. The discussions by the European cement producers during the periodin question on 'fair or healthy or correct competition (contested decision, recital17) were not found to be an infringement in the contested decision. The object ofthe agreement was 'non-transhipment to home markets and the regulation of salesfrom one country to another, i.e. market-sharing (contested decision, recital 45,paragraph 9). Since the gap between extremes, which was between 1 and 2,inevitably constituted a 'temptation (contested decision, recital 19, paragraph 9;memorandum to the Chairman) for intra-European trade, and therefore a directthreat to the Cembureau agreement, the desire expressed by the Chairman to seethat gap gradually reduced confirms the contention that the Cembureau agreementwas concluded at the meeting held on 14 January 1983. The reference in the noteson the meeting of 2 April 1984 to the fact that it was pointless to 'continue thediscussion within Cembureau relates, according to the notes on that meeting,exclusively to the question of 'random additional exports [from Germany] to theNetherlands and Belgium, since 'previous discussions between Head Delegateshad not altered this state of affairs. At the very most, that reference shows thatthere had been a breach of the principle of non-transhipment to home markets, to which no solution had been found at the Head Delegates meetings. Such a findingcannot refute the body of documentary evidence assembled by the Commission (seeparagraphs 979 to 985 above). 2.2.4. Conclusions regarding the Head Delegates meeting on 14 January 1983 1003. The evidence set out by the Commission in recitals 18, 19 and 45 is such that it wasentitled to conclude that an agreement within the meaning of Article 85(1) of theTreaty had been concluded at the Head Delegates meeting on 14 January 1983, theobject of the agreement being 'non-transhipment to home markets and theregulation of sales from one country to another, i.e. market-sharing (contesteddecision, recital 45, paragraph 9). 2.3. Confirmation of the Cembureau agreement at the meeting of Head Delegateson 19 March 1984 1004. The Commission considers that the Cembureau agreement was confirmed at themeeting of Head Delegates held on 19 March 1984 (contested decision, recital 45,paragraph 2). It relies on the memorandum for the Chairman for the meeting of19 March 1984 (contested decision, recital 19, paragraph 9; documents33.126/11728 and 11729) and the notes on that meeting (contested decision, recital19, paragraph 10; documents 33.126/11733 to 11737). 1005. First, Cembureau, FIC, Aalborg, Irish Cement and Cementir claim that it followsfrom the draft record of the Executive Committee meeting held on 9 November1983 (contested decision, recital 17, paragraph 5; documents 33.322/286 to 294) thatthe meeting of 19 March 1984 was convened in order to deal with the problemsconsidered at the earlier Head Delegates meeting on 30 May 1983, namely dumpedimports from Eastern Europe and Spain and developments on the world cementmarkets. It could not therefore have been a question of confirming an agreementconcluded at the meeting held on 14 January 1983. CBR, Cembureau, CimentsLuxembourgeois, Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Unicem,Heracles, Oficemen, ATIC, Titan, Italcementi and AGCI assert that no measureor decision was adopted at the meeting of 19 March 1984. They therefore denythat the alleged Cembureau agreement was confirmed at that meeting. At the verymost, the documents relating to the meeting show the existence of bilateral contactsbetween certain producers, but not the existence of an agreement involving theentire European cement industry. 1006. The Court points out that the draft record of the Executive Committee meeting of9 November 1983 states: 'It was agreed that a special meeting of Head Delegates should be called to takeplace before the 4th Market Development Meeting (19 March 1984) to discussproblems examined at the previous meetings. 1007. The use of the words 'previous meetings, in the plural, shows that the meeting on19 March 1984 also dealt with the points discussed not only at the meeting of 30May 1983 but also at the Head Delegates meeting of 14 January 1983. 1008. As regards the question whether or not the memorandum to the Chairman for theHead Delegates meeting on 19 March 1984 and the notes on that meeting showthat the concurrence of wills which arose on 14 January 1983 was confirmed at themeeting of 19 March 1984, it should be pointed out that the fact that exports fromGermany to the United Kingdom and Ireland, from France to Germany, fromSpain to Ireland and the United Kingdom and from Italy to Switzerland aredescribed as 'hot spots in the memorandum to the Chairman in itself shows thatthose exports, unlike traditional or structural inter-State trade, or in other wordscontrolled inter-State trade, were considered not to comply with a rule of conductdesired by the participants at the meeting. Moreover, in the notes on that meeting,non-traditional or non-structural exports are referred to as 'random exports. The explanation given for the 'hot spots in the memorandum to the Chairmanis as follows: 'The gap [between prices in the various member countries ofCembureau] which is between 1 and 2 inevitably constitutes a temptation. It istherefore desirable gradually to reduce the gap, essentially by increasing the lowestprices ... and also by moderating high price trends. The notes on the meetingstate that it was agreed that the exchange of price information would place'potential causes of conflict in perspective. 1009. It follows that, like the participants in the meeting held on 14 January 1983, theparticipants in the meeting held on 19 March 1984 sought to reduce and controlthe quantities of cement exported between member countries of Cembureau. Although there were still some 'hot spots, it is clear from the general conclusionsto the notes on the meeting held on 19 March 1984 that the participants in thatmeeting found that '[p]ressure from inter-member trade had slackenedconsiderably through improved bilateral contacts. Exports had tended to shrink butthere was still a threat from outsiders. The objective of reducing cement exportsbetween the member countries of Cembureau was therefore achieved through'improved bilateral contacts, which was one of the measures suggested by theChairman of Cembureau in his draft introductory statement for the meeting heldon 14 January 1983 to ensure that the 'rules of the game were followed. 1010. It is therefore plain from the extracts from the memorandum to the Chairman forthe meeting of 19 March 1984 and from the notes on that meeting that theconcurrence of wills which had arisen at the meeting of 14 January 1983 wasconfirmed at the meeting of 19 March 1984. Even if, as a number of applicantsclaim, no formal decision was taken at the meeting in question, that concurrence of wills constituted an agreement within the meaning of Article 85(1) of the Treaty(ACF Chemiefarma v Commission, cited in paragraph 643 above, paragraph 112;Van Landewyck and Others v Commission, cited in paragraph 717 above, paragraph86; Commission v Anic, cited in paragraph 270 above, paragraph 130; Montecatiniv Commission, cited in paragraph 270 above, paragraph 162; and Tréfileurope vCommission, cited in paragraph 958 above, paragraph 95). 1011. Second, CBR claims that there is no evidence to support the Commission'sassertion that, in order to implement the Cembureau agreement, action wasnecessary only by those undertakings involved in a 'hot spot (contested decision,recital 45, paragraph 8, fifth subparagraph). 1012. The Court points out that in the draft introductory statement by the Chairman forthe meeting of Head Delegates on 14 January 1983 it was suggested that theparticipants at that meeting should establish certain 'rules of the game, 'spreadwords of wisdom around them and, each time it was necessary, hold 'multi- orbilateral discussions. Furthermore, in the notes dated 2 April 1984 on the meetingheld on 19 March 1984 it was stated that '[p]ressure from inter-member trade hadslackened considerably through improved bilateral contacts. 1013. In the light of these various items of documentary evidence, the Commission wasentitled to conclude in recital 45, paragraph 8, fifth subparagraph, of the contesteddecision as follows: 'It was inherent in the proposal made at the meeting held on 14 January 1983 thataction should be taken only by those undertakings involved in a hot spot. i.e. bynon-compliance with the home market principle, with such sources of friction beingdealt with in bilateral discussions ... 1014. Third, Cembureau maintains that, when the memorandum to the Chairman for theHead Delegates meeting on 19 March 1984 is compared with the notes on themeeting of 2 April 1984, it is apparent that the discussions, in particular those onprice-fixing, did not take place at the meeting as envisaged in the memorandum drawn up for the Chairman. 1015. The Court points out, however, that the contested decision contains no specificcomplaint relating to a price-fixing agreement (see paragraph 1002 above). Theapplicant's observations do not therefore shed a different light on the specificdocumentary evidence on which the Commission relies (see paragraphs 1008 to1010 above), which unequivocally shows that there was a concurrence of wills onnon-transhipment to home markets and the regulation of sales from one countryto another at the meeting of Head Delegates on 19 March 1984. 1016. Fourth, Cembureau relies on the data distributed at the Head Delegates meetingof 19 March 1984 in order to demonstrate the inaccuracy of the Commission's allegation that the Cembureau agreement was confirmed at that meeting. It pointsout that the data was made up of three categories: data on cement prices; data onproduction, imports and exports between European producers; and data on importsfrom Eastern Europe. The first category consisted of general data, which were nottherefore capable of influencing trade or distorting competition. The secondconsisted of data which were in the public domain and which were provided by aspecial department of Cembureau which gathered statistical data produced by thecustoms authorities of the Member States and other European countries; they werecomparable to the data which had been distributed at the meeting on 14 January1983 and showed an increase in trade between member countries of Cembureauwhich was at variance with the content of the alleged Cembureau agreement. Thedata in the third category were analogous to the data distributed at the meeting on14 January 1983. 1017. The Court points out, however, that the documents showing that various types ofinformation were distributed at the meeting on 19 March 1984 do not shed adifferent light on the specific documentary evidence which shows that at thatmeeting, as well as engaging in what may have been a lawful exchange ofinformation, the Head Delegates reaffirmed their concurrence of wills concerningtranshipment to home markets and the regulation of sales from one country toanother (see paragraphs 1008 to 1010 above). 1018. The argument alleging that there was an increase in intra-Community cement trademust also be rejected, because trade might have developed differently if there hadbeen no restrictive agreement (Consten and Grundig, cited in paragraph 837 above). 1019. Fifth, Cembureau and Irish Cement maintain that the references to 'potentialcauses of conflict and 'pressure from inter-member trade in the notes on themeeting of 2 April 1984 refer essentially to the danger represented by the conductof the Spanish cement industry at that time and the general preoccupation with it. Similarly, Ciments Français maintains that where the notes on the meeting dealwith trade between member countries they refer mainly to flows of cement fromSpain to Ireland and the United Kingdom. 1020. As regards, first, the references to 'potential causes of conflict and to 'pressurefrom inter-member trade in the notes on the meeting of 2 April 1984, the Courtpoints out that in both cases they are to be found in general conclusions whichrelate not just to imports from Spain but to the general situation on the Europeanmarket (contested decision, recital 19, paragraph 10; documents 33.126/11733 to11737). The very content of the notes on the meeting shows that the evaluationof the situation on the European market was not limited to the problem of exportsfrom Spain. It is apparent from those notes that, in addition to Spanish importsinto certain countries of the Community, 'random exports from Germany to theNetherlands and Belgium and the 'dispute between Switzerland and Italy werediscussed at the meeting. In any event, the interpretation proposed by Cembureau, Ciments Français and Irish Cement is not such as to shed a different light on thevarious passages from the memorandum to the Chairman for that meeting or onthe notes on the meeting, which unequivocally show that the Cembureau agreementwas confirmed in the course of the discussions (see paragraphs 1008 to 1010above). 1021. Sixth, Lafarge states that in Article 2 of the contested decision, the Commissionmade a separate finding on the exchange of price information referred to in thememorandum to the Chairman for the meeting of 19 March 1984 and the noteson that meeting. Those documents cannot therefore be linked to the allegedagreement on non-transhipment to home markets. 1022. That argument must be rejected. One item of evidence may relate to a numberof infringements. In any event, the Commission's proof that the Cembureauagreement was confirmed at the meeting on 19 March 1984 was not based solelyon the passages from the documents relating to that meeting which refer to theexchange of price information. It is clear from recital 45, paragraph 2, of thecontested decision that the Commission took into account principally thediscussions on tensions created by cross-frontier flows, the 'hot spots referred toin the memorandum to the Chairman, and the conclusions set out in the notes onthe meeting dated 2 April 1984, which stated that pressure from inter-membertrade had slackened considerably through improved bilateral contacts and thatexports had tended to shrink, although there was still a threat from outsiders. 1023. Seventh, Lafarge points out that in the notes on the meeting dated 2 April 1984there is a reference to the desire not to set up information exchanges that wouldbe contrary to Community competition law. 1024. That argument is irrelevant. The objection upheld in Article 1 of the contesteddecision does not concern the exchange of information but an agreement on non-transhipment to home markets and the regulation of sales from one country toanother (see paragraph 1017 above). 1025. Eighth, and last, Unicem states that the information enclosed with the letterconvening the meeting of 19 March 1984 was intended for use in a possible anti-dumping action in respect of imports from Eastern Europe. 1026. The Court points out that the first item on the agenda of the meeting of 19 March1984 was entitled 'Imports from Eastern Europe (document 33.126/11716). However, notwithstanding the fact that the documents to which Unicem refers mayhave been intended for use in an anti-dumping action in respect of those imports,the Cembureau agreement was confirmed in the context of the discussions relatingto the second item on the agenda, concerning the 'position on the Europeanmarket (document 33.126/11716). 1027. The Court therefore concludes that the evidence presented by the Commission inrecitals 18, 19 and 45 of the contested decision was such that it was entitled toconclude that the concurrence of wills in respect of the principle of non-transhipment to home markets and the regulation of sales from one country toanother was reaffirmed at the Head Delegates meeting on 19 March 1984(contested decision, recital 45, paragraph 9). 2.4. Confirmation of the Cembureau agreement at the meeting of Head Delegateson 7 November 1984 1028. The Commission maintains that the Cembureau agreement was confirmed oncemore at the Head Delegates meeting held on 7 November 1984 (contesteddecision, recital 45, paragraph 2, second subparagraph). In that regard, it relies onthe 'summary notes dated 12 November 1984 relating to that meeting (contesteddecision, recital 19, paragraph 14; documents 33.126/11754 and 11755). 1029. First, CBR, Cembureau, FIC, Ciments Luxembourgeois, Dyckerhoff, CimentsFrançais, Heidelberger, Lafarge, Aalborg, Unicem, Heracles, Oficemen, IrishCement, ATIC, Titan, Cementir and AGCI dispute the validity of that assertion. They argue that it follows from the documents referred to in recital 19, paragraphs12 to 14, of the contested decision that the meeting was devoted to East Europeanimports and world cement market developments. The Greek/Spanish agreementreferred to in the 'summary notes of 12 November 1984 relating to the HeadDelegates meeting on 7 November 1984 (contested decision, recital 19, paragraph14; documents 33.126/11754 and 11755) is an agreement whose sole purpose wasto stabilise the prices of exports outside Europe. In addition to the documentsmentioned in recital 19, paragraphs 12 to 14, of the contested decision, Cembureaurefers to various tables distributed at the meeting of 7 November 1984 (contesteddecision, recital 19, paragraph 15; documents 33.126/11774 to 11789) and to thedraft record of the meeting of the Executive Committee held on 8 November 1984(annex 4.11 to Cembureau's application). FIC also refers to the note dated 12November 1984 sent to its administrative board by Mr Van Hove (contesteddecision, recital 44, paragraph 3, in fine; documents 33.126/2063 to 2069 and 2436to 2447), which states, in regard to the meetings of the Executive Committee andof the Head Delegates on 7 and 8 November 1984, that 'no internal EEC problemwas dealt with or raised. 1030. The Court points out that, unlike the meetings held on 14 January 1983 and 19March 1984, intra-European trade was not a separate item on the agenda of themeeting held on 7 November 1984. The two items on the agenda of that meetingwere: '1. East European imports ... 2. World market developments. Similarly, thedraft record of the Executive Committee meeting held on 8 November 1984 statesthat the meeting on 7 November 1984 was 'devoted to imports from EasternEurope and the continued threat of their increase as well as the deterioration in the situation on the world market. As regards the note dated 12 November 1984to which FIC refers, it states that 'no internal EEC problem was dealt with orraised at the meeting held on 7 November 1984. 1031. However, it is clear from the 'summary notes dated 12 November 1984 that theparticipants in the meeting held on 7 November 1984 supported the conclusion ofan agreement between Greek and Spanish exporters. 1032. The 'summary notes state in respect of that agreement: 'This is unanimously considered as the basic criterion if better export prices are tobe achieved, and the risk of a destabilisation in Europe avoided. 1033. The notes then conclude: 'The situation was serious and export prices damagingly low. There was surpluscapacity both in West Europe and the Far East, which had to be used in aresponsible manner. The Greek and Spanish cement industries were to becongratulated on their efforts to reach understanding, and other member countrieswere prepared, if requested, to support fully their endeavours. Small quantitiesexpected by other countries would not disturb the market if mutual confidenceprevailed. 1034. By supporting the Greek/Spanish agreement the Head Delegates therefore pursueda double objective. 1035. They sought, first, to obtain better export prices. Cement prices on the worldmarket were considered damagingly low. The low level of export prices was causednot only by surplus capacity in Europe and in the Far East but also by the conflictbetween Greek and Spanish producers on the export markets. In that regard, thenote dated 12 November 1984 from Mr Van Hove states that the conflict betweenGreek and Spanish producers 'affected prices on the external markets. That iswhy the Greek/Spanish agreement was unanimously considered the basic criterionif better export prices were to be achieved. Similarly, the draft record of themeeting of the Executive Committee held on 8 November 1984 states that '[t]hepresident stressed the importance of the efforts being made by the Spanish andGreek exporters to restore prices to reasonable levels and the striking evidence thathad been shown at the meeting of the support that other members were willing togive them to this end. 1036. In supporting the Greek/Spanish agreement the Head Delegates also sought toavoid 'the risk of a destabilisation in Europe. In their general conclusions theylinked the risk of destabilisation in Europe with the existence of 'surplus capacity,which, according to them, had to be used 'in a responsible manner. At a timewhen prices on the world market were falling significantly, there was a real risk that European producers who normally exported their surplus production outsideEurope would be tempted to seek outlets in Europe for at least part of their excessproduction. The objective of the meeting of Head Delegates was therefore torestore prices on the world market to 'reasonable levels (draft record of themeeting of the executive committee held on 8 November 1984) in order to avoidsuch a diversion. Thus, as was also apparent from the Blue Circle internalmemorandum dated 1 December 1983 (contested decision, recital 18, paragraph2; documents 33.126/11332 to 11334), non-transhipment to home markets and thechannelling of exports went hand in hand. 1037. Accordingly, although the problem of cement trade between Member States wasnot on the agenda of the meeting held on 7 November 1984, the Commission wasentitled, after properly evaluating the evidence relating to that meeting, to concludeas follows in regard to the Cembureau agreement (contested decision, recital 45,paragraph 2, second subparagraph): 'The content of the agreement was again confirmed at the meeting of HeadDelegates held on 7 November 1984 ..., at which the channelling of Greek andSpanish production surpluses was endorsed by Cembureau and its members so asto avoid destabilising European markets. 1038. Second, Heidelberger and Unicem claim that the references in the 'summarynotes dated 12 November 1984 to the need to 'achieve a firm understandingbetween the major European exporters and to '[n]egotiations ... between fourSpanish and three Greek companies (see paragraph 808 above) are at variancewith the existence of the Cembureau agreement. 1039. That argument must be rejected. The agreement and negotiations in questionconcern the major export markets and are not at variance with the prior existenceand conclusion of an agreement not to tranship to internal European markets. Onthe contrary, it follows from the foregoing analysis (see paragraphs 1030 to 1037above) relating to the meeting held on 7 November 1984 that by supporting theconclusion of an agreement between Greek and Spanish exporters the HeadDelegates wished to ensure that the Cembureau agreement did not break down. 1040. Third, AGCI claims that in order to establish the existence of an unlawfulagreement on non-transhipment to home markets the Commission could not relyon the fact that information had been exchanged at the meeting of 7 November1984 on the Greek/Spanish agreement relating to the Cement MarketingAssociation (hereinafter 'the CMA). First, Greek and Spanish exporters havebeen competing on the major export markets since the beginning of the 1970s, sothat the presence of the producers of those two countries on those markets cannotbe seen as evidence of the implementation of the Cembureau agreement in theform of the channelling of their product to non-European countries; second, theagreement on the CMA was not called in question in the contested decision. Consequently, the Commission cannot rely on the existence of a lawful agreementin order to demonstrate the existence of another, unlawful, agreement. Titan alsocomplains that the Commission had 'given to believe that a lawful agreementcould constitute evidence of the existence of an unlawful agreement. AGCI refersto the intervention of its representative at the meeting of the Cembureau executivecommittee on 9 November 1984 (contested decision, recital 17, paragraph 6) andstates that to encourage cooperation in overseas markets is not objectionable underArticle 85(1) of the Treaty. 1041. The Court finds that the argument that there had been competition between Greekand Spanish producers since the 1970s does not shed a different light on the'summary notes dated 12 November 1984, which show that the Head Delegatessupported the Greek/Spanish agreement so that 'the risk of a destabilisation inEurope [could] be avoided and thus confirmed the Cembureau agreement (seeparagraphs 1030 to 1037 above). 1042. As regards the argument that the Commission established the existence of theCembureau agreement on the basis of the CMA agreement, the Court points outthat the Commission did not rely on the discussions at the meeting held on 7November 1984 as proof of the very existence of the Cembureau agreement. Inthe contested decision it merely claimed that the content of the Cembureauagreement had been confirmed at that meeting. Thus it asserted that theconcurrence of wills on 'non-transhipment to home markets and the regulation ofsales from one country to another, i.e. market-sharing (contested decision, recital45, paragraph 9), which had already come into being on 14 January 1983 and 19March 1984, had again been confirmed on 7 November 1984, not because thediscussions which had taken place at the latter meeting concerned the CMA butbecause those discussions sought to avoid 'the risk of a destabilisation in Europe(contested decision, recitals 19, paragraph 14, and 45, paragraph 2, secondsubparagraph). 1043. Last, AGCI's observations that cooperation between undertakings on the majorexport markets outside the Community did not infringe Article 85(1) of the Treatyare irrelevant because the CMA was not the subject-matter of a specific objectionin the contested decision. 1044. Fourth and last, Halkis considers that the reference to the Greek/Spanishagreement could not be used by the Commission as evidence to show that theCembureau agreement had been confirmed at the meeting of 7 November 1984:quite apart from the fact that that agreement never existed, it was not evenidentified in the contested decision as a manifestation of the principle of non-transhipment to home markets. 1045. That argument must also be rejected. It should be pointed out that theCommission did not rely on the actual existence and application of the Greek/Spanish agreement in concluding that the Cembureau agreement had beenconfirmed at the meeting held on 7 November 1984, but only on the fact that,according to the 'summary notes dated 12 November 1984, the participants in thatmeeting had unanimously considered the Greek/Spanish agreement to be the basiccriterion if 'the risk of a destabilisation in Europe [was to be] avoided. 1046. It must be concluded that on the basis of the evidence presented in recitals 18, 19and 45 of the contested decision the Commission was entitled to conclude that theconcurrence of wills in regard to the principle of non-transhipment to homemarkets and the regulation of sales from one country to another was reaffirmed atthe meeting held on 7 November 1984 (contested decision, recital 45, paragraph9). 2.5. Failure to take other Head Delegates meetings into consideration 1047. Cembureau, FIC, Irish Cement and Cementir complain that, although its argumentis based on the predominant role which the Head Delegates meetings played in theconclusion and implementation of the alleged Cembureau agreement, theCommission failed to take into consideration the Head Delegates meetings held on30 May 1983 and 10 June 1985 and the fact that the question of intra-Communitytrade was not raised at those meetings. This shows that the Commission adoptedan arbitrary and biased approach to selecting and analysing the evidence at itsdisposal. Titan complains that the Commission ignored the Head Delegatesmeeting of 30 May 1983, at which none of the questions at issue were raised. 1048. In support of the assertion that intra-Community trade was not discussed at themeetings held on 30 May 1983 and 10 June 1985, the applicants refer, as regardsthe first meeting, to the letter of 5 April 1983 convening the meeting (document33.126/11643), the draft agenda of the meeting dated 17 May 1983 (documents33.126/11654 and 11655) together with the report of that meeting given at themeeting of the executive committee held on the same date (annex 3.20 toCembureau's application) and, as regards the second meeting, to the letterconvening it and the documents enclosed therewith (documents 33.126/11793 and11796) and the documents distributed at the meeting (documents 33.126/11799 and11800). 1049. However, the Court finds that the Commission cannot be criticised for not takinginto consideration factual information that did not provide additional evidencecorroborating the body of specific documentary evidence which it had to show thatthe Cembureau agreement was concluded and confirmed at the meetings held on14 January 1983, 19 March and 7 November 1984. In any event, even assumingthat intra-Community trade was not discussed at the meetings held on 30 May 1983and 10 June 1985, that circumstance is not such as to shed a different light on thebody of documentary evidence showing that an agreement not to tranship to home markets was concluded, and then confirmed, at the meetings held on 14 January1983, 19 March and 7 November 1984 (see paragraphs 872 to 1046 above). 2.6. General arguments relating to the evidential value of the documents referredto in recitals 18 and 19 of the contested decision 1050. First, a number of applicants question the evidential value of some of the evidenceon the ground that they were not aware of it before the administrative procedure. 1051. Thus Vicat contends that the Commission did not seek to establish that it wasaware of the various documents relating to the Head Delegates meetings. Cementir and AGCI state that the two Blue Circle internal memoranda (contesteddecision, recital 18, paragraphs 2 and 3; documents 33.126/11332 to 11334 and11335 to 11337) do not emanate from them and that at the material time neitherthey nor the other members of Cembureau were aware of them. AGCI adds thatat the material time it was not aware of the correspondence between the Chairmanof Cembureau and Mr Van Hove (contested decision, recital 19, paragraph 3;documents 33.126/11558 and 11559) or of the existence or content of thememorandum to the Chairman concerning the Head Delegates meeting of 19March 1984 (contested decision, recital 19, paragraph 9; documents 33.126/11728and 11729). 1052. In the same context, VNC maintains that the documents and statements on whichthe Commission relies cannot be used against it. The documents in question eithercome from cement producers with which VNC had no connection, do not comefrom Cembureau, or do not refer to VNC by name. BDZ claims that its owndocuments contain no record of the Head Delegates meetings called in questionby the Commission or the slightest reference to the content of the allegedCembureau agreement. Ciments Français claims that the French Head Delegatewas not aware of either the letter from Mr Gil Braz de Oliveira convening themeeting of Head Delegates on 14 January 1983 (contested decision, recital 19,paragraph 2; documents 33.126/11552 and 11553) or the exchange of telexesbetween the secretariat of Cembureau and Mr Van Hove on 17 November 1982(contested decision, recital 19, paragraph 3; documents 33.126/11558 and 11559)or the draft introductory statement of the Chairman for the meeting of 14 January1983 (contested decision, recital 19, paragraph 5; documents 33.126/11583 to11585). Titan also claims that at the time it was not aware of the letter from MrGil Braz de Oliveira convening the meeting of Head Delegates on 14 January 1983or of the draft introductory statement of the Chairman for that meeting. 1053. The Court finds, however, that the circumstances referred to in paragraphs 1050to 1052 above do not affect the evidential value of the documents referred to inrecitals 18, 19 and 45 of the contested decision as regards establishing the actualexistence of an infringement. The evidential value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it isaddressed and its content (Opinion of Judge Vesterdorf, acting as AdvocateGeneral, in Case T-1/89 Rhône-Poulenc v Commission [1991] ECR II-867, II-869,at II-956; Case T-3/89 Atochem v Commission [1991] ECR II-1177, paragraphs 31to 38, and Case T-157/94 Empresa Nacional Siderúrgica v Commission [1999] ECRII-0000, paragraph 312). The circumstances invoked by the applicants concernedmay be taken into consideration at the most in assessing their participation in theinfringement. The Court will consider below whether their participation in theCembureau agreement was proved sufficiently in fact and in law in the contesteddecision. 1054. Second, Blue Circle maintains that in relying on parts of documents in thecontested decision the Commission clearly distorted the sense of some of them. 1055. Blue Circle's argument is not supported by any specific evidence which would allowthe Court to assess its substance. It must therefore be rejected as lacking inprecision. 1056. Third, Cembureau, Ciments Français, Heidelberger, Lafarge, Unicem, Heracles,Uniland, Oficemen and Irish Cement contend that in order to prove that theCembureau agreement had been concluded at the meeting held on 14 January 1983the Commission relied on preparatory documents, namely the letter convening thatmeeting (contested decision, recital 19, paragraph 2; documents 33.126/11552 and11553), the draft agenda of the meeting (contested decision, recital 19, paragraph3; document 33.126/11580) and the draft introductory statement (contesteddecision, recital 19, paragraph 5; documents 33.126/11583 to 11585). Preparatorydocuments have no evidential value, since they at most reflect the opinion of theirauthor but do not reveal what actually took place at the meeting in question. Heidelberger adds that the fact that one of the participants in the meeting on 14January 1983 stated that it wished to propose certain rules of the game does notconstitute either proof of an agreement or proof of the content of those rules. Forthe same reasons, Ciments Français and Unicem dispute the evidential value of thememorandum to the Chairman of Cembureau concerning the meeting of HeadDelegates on 19 March 1984 (contested decision, recital 19, paragraph 9;documents 33.126/11728 and 11729). 1057. Cembureau also states that the draft introductory statement of the Chairman forthe meeting of 14 January 1983 and the memorandum to the Chairman for themeeting on 19 March 1984, in particular the reference to 'hot spots in the latterdocument, reflect only the personal opinion of their authors, Mr Collis and MrDutron, Directors of Cembureau, rather than those of the Chairman and theparticipants in the meetings in question. 1058. Italcementi claims that it is impossible to prove, on the basis of the documentsrelating to the three Head Delegates meetings called in question in the contested decision, that a concurrence of wills existed between the participants in the variousmeetings, the documents concerned being preparatory documents, handwrittennotes and memos. In any event, Italcementi cannot be certain that they weresubmitted in full to the Head Delegates. 1059. The Court finds that there is a contradiction in the reasoning of most of theapplicants concerned: they deny that the preparatory documents for the variousmeetings of Head Delegates have any evidential value but rely on the samedocuments when they seek to show that the discussions at those meetings werelawful (see paragraphs 955 to 1026 above). 1060. In any event, the Commission did not rely in the contested decision solely onpreparatory documents for the Head Delegates meetings. It relied, in particular,on the notes dated 2 April 1984 concerning the Head Delegates meeting held on19 March 1984 (contested decision, recital 19, paragraph 10; documents33.126/11733 to 1737) and the 'summary notes dated 12 November 1984concerning the meeting held on 7 November 1984 (contested decision, recital 19,paragraph 14; documents 33.126/11754 and 11755). It follows from thosedocuments, and from the Blue Circle internal memoranda (documents 33.126/11332to 11334 and 11335 to 11337), the statement of the Chairman of Heracles andCembureau's admission (contested decision, recital 18, paragraph 4; documents33.126/11525 and 13568 to 13573), that the proposals of the Chairman ofCembureau, which are clearly set out in the preparatory documents for the HeadDelegates meetings held on 14 January 1983 and 19 March 1984, were made atthose meetings and, furthermore, that they were approved by the participants inthose meetings. Proof of the existence of the concurrence of wills on non-transhipment to home markets and the regulation of sales from one country toanother is therefore supported by the body of consistent evidence referred to inrecitals 18, 19 and 45 of the contested decision. 2.7. Documents subsequent to the Head Delegates meetings showing that theCembureau agreement was not concluded at the meeting held on 14 January 1983or confirmed at the meetings held on 19 March and 7 November 1984 1061. A number of applicants claim that various documents show that the Cembureauagreement could not have been concluded at the meeting held on 14 January 1983or confirmed at the meetings held on 19 March and 7 November 1984. 1062. First, Cembureau, FIC, Dyckerhoff, Aalborg, Irish Cement, Titan and AGCI referto the handwritten Italcementi note on the Executive Committee meeting held inParis on 14 April 1986 (contested decision, recital 17, paragraph 9; document33.126/3185), which states: '... we must establish rules of the game amongstourselves to avoid improper competition. The fact that it was necessary to 'establish rules of the game shows that those rules had not been adopted at theHead Delegates meeting held on 14 January 1983. 1063. That argument must be rejected. The Court points out that the sentence quotedfrom the Italcementi note is preceded by observations relating to dumped imports. The observations immediately following that sentence also relate to dumping. Moreover, it is apparent from that document that it was the Spanish delegate, MrBertrán, of Asland, who stated that it was necessary to 'establish rules of the game... to avoid improper competition. In that regard, it should be pointed out that ananti-dumping complaint had been lodged by the Community industry against theSpanish cement producers in April 1985 (OJ 1985 C 84, p. 5). 1064. It therefore follows from the foregoing, that contrary to what the Commissionclaims (contested decision, recital 17, paragraph 10), Mr Bertrán's statement wasmade in the context of a discussion of the problems caused by dumped imports. Even if such imports from Spain to other Member States show that the Spanishproducers did not always comply with the Cembureau agreement, it is none the lessthe case that such a finding is not such as to shed a different light on the evidenceon which the Commission relied in recitals 18, 19 and 45 of the contested decision,which shows that at the meeting held on 14 January 1983 a concurrence of willswas revealed regarding the principle of non-transhipment to home markets and theregulation of sales from one country to another (see, in particular, paragraphs 979to 985 above). Moreover, the fact that Mr Bertrán, the representative of anindustry against which an anti-dumping complaint had been lodged, assured theother participants in the meeting that he considered it necessary to avoid impropercompetition is perfectly consistent with the theory of a pre-existing Cembureauagreement. 1065. Second, Titan observes that at the meeting of the Executive Committee on 9November 1983 Mr Bertrán encouraged the establishment of cooperation betweenmembers of Cembureau but did not refer to any failure to comply with the ruleson cooperation adopted at the meeting of 14 January 1983. 1066. That argument must also be rejected. The document to which Titan refers dealswith the problem of low prices on the major export market and the need forcooperation between members of Cembureau to face up to that problem. Sincethe cooperation to which Mr Bertrán referred at the Executive Committee meetingon 9 November 1983 concerned the market outside Europe, the statement inquestion is not of such a nature as to shed a different light on the evidence onwhich the Commission relied in recitals 18, 19 and 45 of the contested decision(see, in particular, paragraphs 979 to 985 above). 1067. Third, Ciments Français considers that the Commission's argument that theCembureau agreement was concluded by Cembureau and its members at themeeting of Head Delegates on 14 January 1983, then confirmed at the meeting held on 19 March 1984, is irreconcilable with the fact that in the case ofHolderbank and the Spanish, Portuguese and Norwegian producers whoparticipated in that meeting the Commission states that it had no evidence thattheir participation in the Cembureau agreement had any effect within theCommunity before 1986 (contested decision, recital 65, paragraph 4). 1068. That argument is irrelevant. Even supposing that the Commission erred or wasinconsistent in its attribution of the infringement referred to in Article 1 of thecontested decision to Holderbank, Aker and the Spanish and Portugueseundertakings and associations, that would not affect the probative value of theevidence referred to in recitals 18, 19 and 45 of the contested decision, which showsthat a concurrence of wills on non-transhipment to home markets and theregulation of sales from one country to another was apparent at the HeadDelegates meetings held on 14 January 1983, 19 March and 7 November 1984 (see,in particular, paragraphs 979 to 985, 1008 to 1010, and 1030 to 1037 above). 1069. Fourth, and last, Aalborg claims that the Commission's assertion that it is notcertain that the infringement ever really ceased and cannot therefore establish adate for the ending of the infringement (contested decision, recital 65, paragraph4) confirms that the Cembureau agreement did not exist. If the Cembureauagreement had been real and influenced conduct on the market, the Commissionwould have been in a position to establish whether or not it had been terminated. 1070. That argument must be rejected. The fact that the Commission has no evidenceof the date when the agreement referred to in Article 1 of the contested decisionended does not affect the probative value of the evidence referred to in recitals 18,19 and 45 of the contested decision, which shows that a concurrence of wills onnon-transhipment to home markets and the regulation of sales from one countryto another emerged at the Head Delegates meetings held on 14 January 1983, 19March and 7 November 1984 (see, in particular, paragraphs 979 to 985, 1008 to1010 and 1030 to 1037 above). 2.8. Characterisation as an agreement within the meaning of Article 85(1) of theTreaty 1071. First, CBR, FIC, Dyckerhoff, Heidelberger and Italcementi submit that theCommission could not characterise the Cembureau agreement as an agreementwithin the meaning of Article 85(1) of the Treaty. CBR considers that theCommission has not shown the expressions of will which distinguish an agreementfrom a concerted practice. The mere fact that Cembureau encouraged theadoption of certain good neighbour rules does not, in the absence of proof of theadhesion of the members of Cembureau, show that they agreed to subscribe tosuch a suggestion. Dyckerhoff, Heidelberger and Italcementi maintain that theCommission did not provide evidence that the views of the various participantsconverged at the meetings of Head Delegates in regard to the subject-matter of the discussions. FIC claims that the vague and inconsistent nature of the terminologyused by the author of the Blue Circle internal memoranda to describe the allegedCembureau agreement shows that the precise characterisation of that agreementis uncertain. 1072. It is clear from the body of documentary evidence referred to in recitals 18, 19 and45 of the contested decision that a concurrence of wills on non-transhipment tohome markets and the regulation of cement sales from one country to anotherbecame apparent at the meeting of Head Delegates held on 14 January 1983 andthat it was confirmed at the Head Delegates meetings on 19 March and 7November 1984. Such a concurrence of wills constitutes an agreement within themeaning of Article 85(1) of the Treaty (ACF Chemiefarma v Commission, cited inparagraph 643 above, paragraph 112; Van Landewyck and Others v Commission,cited in paragraph 717 above, paragraph 86; Commission v Anic, cited in paragraph270 above, paragraph 130; Montecatini v Commission, cited in paragraph 270 above,paragraph 162; and Tréfileurope v Commission, cited in paragraph 958 above,paragraph 95). The use in the Blue Circle internal memoranda of the words'Cembureau agreement, principle or policy of non-transhipment to internalEuropean markets merely reflects the existence of that concurrence of wills andtherefore that there was an agreement within the meaning of Article 85(1) of theTreaty. The Court will, however, consider below whether all the applicants may beregarded as having participated in the agreement in question. 1073. Second, Cembureau, Lafarge and Castle claim that the Commission has notproduced evidence of its claim in recital 45, paragraph 8, of the contested decisionthat general instructions were given to the indirect members of Cembureau. Akerand EUROC consider that there is no evidence of instructions or recommendationsgiven by the Head Delegates, by the national trade associations or by Cembureauitself to the undertakings or associations of undertakings which did not participatein the meeting. 1074. The Court points out that the draft introductory statement of the Chairman for themeeting of 14 January 1983 requested the participants in the meeting to 'spreadwords of wisdom around [them]. In that respect, the manifestation of aconcurrence of wills at the meetings of Head Delegates did not depend on anycommunication by the Head Delegates of 'words of wisdom to the indirectmembers of Cembureau after the meeting. However, the fact that the indirectmembers of Cembureau may in particular cases have been unaware of the 'rulesof the game agreed at the Head Delegates meeting on 14 January 1983 is materialto the question whether they adhered to the Cembureau agreement. That questionwill be considered below. 1075. Third, Italcementi claims that the bilateral measures called in question in thecontested decision are not of such a nature as to prove the existence of an unlawfulagreement involving the entire European cement industry. The existence of a concurrence of wills cannot be proved by the implementation of such a commonintention. 1076. That argument must be rejected. It is sufficient to point out that the existence ofthe Cembureau agreement was properly established in the contested decision onthe basis of the specific documentary evidence referred to in recitals 18, 19 and 45(see, in particular, paragraphs 979 to 985, 1008 to 1010 and 1030 to 1037 above). The Commission did not therefore rely on the implementing measures allegedagainst the various addressees of the contested decision in order to prove theexistence of the Cembureau agreement, even though, according to the contesteddecision, those measures confirm the existence of the concurrence of wills on non-transhipment to home markets and the regulation of cement sales from one countryto another (contested decision, recital 45, paragraph 5). 1077. Fourth, and last, Italcementi claims that the evidence put forward by theCommission in recitals 18, 19 and 45 of the contested decision is also incapable ofdemonstrating the existence of a concerted practice that infringes Article 85(1) ofthe Treaty. 1078. That argument is irrelevant. In Article 1 of the contested decision the Commissioncorrectly finds that there was an agreement, not a concerted practice. 2.9. Object and nature of the Cembureau agreement 1079. ENCI and VNC complains that the Commission has not proved that the allegedCembureau agreement also applied to the Netherlands market. Such proof cannotin any event be inferred from the memorandum to the Chairman for the meetingof Head Delegates on 19 March 1984 (contested decision, recital 19, paragraph 9;documents 33.126/11728 and 11729). The memorandum expressly states that thediscussions did not concern exports from Germany and Belgium to the Netherlands. No other document relating to the Head Delegates meetings refers to the situationon the Netherlands market. 1080. The Court points out, however, that there is nothing in the documents before it toshow that a national market represented within Cembureau escaped the applicationof the agreement concluded on 14 January 1983 and confirmed on 19 March and7 November 1984. 1081. With regard specifically to the Netherlands market, it should be pointed out thatthe Netherlands Head Delegate, Mr Platschorre, was present at the HeadDelegates meeting on 14 January 1983 (contested decision, recital 19, paragraph4; document 33.126/11581) and at that on 19 March 1984 (contested decision,recital 19, paragraph 8; documents 33.126/11699 and 11700). There is no indicationthat Mr Platschorre openly distanced himself from what was agreed at the meetings in question. On the contrary, it is apparent from the documents relating to themeeting of Head Delegates held on 19 March 1984 that the Cembureau agreementalso applied to the Netherlands market. Thus, after being informed that thediscussions would not concern 'traditional or even structural inter-state trade, ...e.g. exports from Germany and Belgium to the Netherlands (memorandum to theChairman for the meeting of Head Delegates on 19 March 1984), the participantsin that meeting learnt during it that in addition to such exports there were'random additional exports to the Netherlands (notes on the meeting dated 2April 1984). On that point, it should be observed that the fact that certain exportsto the Netherlands were described as 'random already showed that those exports,unlike traditional or structural exports to that country, or in other words controlledexports, were seen as not complying with a rule of conduct in force on theNetherlands market concerning non-transhipment to home markets and theregulation of sales from one country to another. 1082. It follows that the argument put forward by ENCI and VNC must be rejected. 1083. AGCI claims that the Cembureau agreement in reality represents the commonposition adopted by a restricted group of undertakings, namely the 'group ofeight, which constituted the 'hard core of the ETF (contested decision, recital25, paragraph 21; document 33.126/18848). Acting exclusively in their own interestand without the knowledge of the other members of Cembureau, those eightundertakings sought to combine in order to meet imports from other MemberStates, such as Greece. On this point, AGCI refers to various factors (the fact thatthe Directors of Cembureau participated in the meetings setting up the ETF heldin Rome on 28 May 1986 and in Zurich and Celigny from 3 to 5 June 1986; thefact that a confidential copy of the minutes of the meetings of the EPC was sentto Blue Circle; and the fact that the Chairman of Cembureau and the Chairmanof the EPC belonged to Blue Circle) which, in its view, show that the Cembureauboard worked under the direction and on behalf of that restricted circle of largeproducers, independently of the other members of Cembureau, without theirknowledge and against their interests. Titan criticises the Commission for notexamining what was meant by the expression 'group of eight. 1084. That argument does not refute the specific documentary evidence referred to inparagraphs 979 to 985 above, which shows unequivocally that the Cembureauagreement was concluded in January 1983  well before the emergence of the'Greek threat, which only materialised after 1986  not in the restrictedframework of a group of undertakings but in that of a meeting of Cembureau HeadDelegates attended by the representatives of all the European cement industry and,in particular, a representative of AGCI. That undertaking's argument musttherefore be rejected. 3. The Cembureau agreement as an infringement of the Treaty: restriction ofcompetition and effects on trade between Member States 1085. It follows from all the foregoing that the Commission was entitled to conclude onthe basis of the evidence which it presented in recitals 18, 19 and 45 of thecontested decision that the Cembureau agreement had been concluded at themeeting of Head Delegates on 14 January 1983 (contested decision, recital 45,paragraph 1) and that the content of that agreement had been confirmed at themeetings of Head Delegates held on 19 March and 7 November 1984 (contesteddecision, recital 45, paragraph 2). The same evidence shows that the object of theCembureau agreement was 'non-transhipment to home markets and the regulationof sales from one country to another, i.e. market-sharing (contested decision,recital 45, paragraph 9). 1086. The Cembureau agreement therefore had an object which was in itself anti-competitive. It fell within a category of agreements expressly prohibited by Article85(1)(c) of the Treaty. Since the Head Delegates represented the entire Europeancement industry (see paragraphs 924 to 927 above), the agreement was clearly suchas to have a significant effect on trade between Member States. 1087. Ciments Luxembourgeois, Dyckerhoff, Lafarge, Aalborg, Alsen-Breitenburg,Nordcement, Unicem, Castle, Uniland, Oficemen, Irish Cement, Cimpor, SECIL,Italcementi, Aker, EUROC, Cementir and Blue Circle claim that the existence ofan agreement must be assessed in its economic context. The explanation for thelow level of trade in cement is not the existence of an agreement not to transhipto home markets but a series of economic reasons, such as the high costs oftransport and harbour charges, the specification rules, administrative barriers andthe cost of investing in exports. Furthermore, economic reality shows that theapplicants had no interest in concluding the Cembureau agreement and that if suchan agreement had been concluded it could not have significantly restrictedcompetition. As regards the United Kingdom market, Blue Circle further statesthat the Commission itself took the view in the SO (point 74(7)) that therestrictions imposed by the CPMA (see paragraph 91 above) had the effect ofisolating and dividing the national market and making it difficult, or evenimpossible, for Continental producers to penetrate that market. Aalborg and BlueCircle complain that the Commission, in assessing the evidence relating to theexistence of the Cembureau agreement, failed to take into consideration theincrease in crossborder trade in cement during the material period. 1088. The conformity of conduct with Article 85(1) of the Treaty must be assessed in itseconomic context (Case 56/65 Société Technique Minière [1966] ECR 235, at 248,and Case T-77/94 VGB and Others v Commission [1997] ECR II-759, paragraph140). However, even if the applicants' assertions were well founded, they are notof such a nature as to prove that the economic context excluded any possibility ofeffective competition (see, to that effect, the judgments in Van Landewyck and Others v Commission, cited in paragraph 717 above, paragraph 153, Joined Cases240/82 to 242/82, 261/82, 212/82, 268/82 and 269/82 Stichting Sigarettenindustrie andOthers v Commission [1985] ECR 3831, paragraphs 24 to 29, and Montecatini vCommission, cited in paragraph 270 above, paragraph 127). Moreover, theinherently anti-competitive object which characterises the conclusion of anagreement not to tranship to home markets  an agreement expressly prohibitedunder Article 85(1)(c) of the Treaty  cannot be altered by an analysis of theeconomic context in which the agreement is situated (see, in that regard,Tréfileurope v Commission, cited in paragraph 223 above, paragraph 109, andEuropean Night Services and Others v Commission, cited in paragraph 834 above,paragraph 136). An economic analysis cannot override the inescapable reality ofdocumentary evidence such as that referred to in recitals 18, 19 and 45 of thecontested decision. In any event, if the economic analysis proposed by theapplicants were accurate, it would actually underline the gravity of the infringement,because by concluding the Cembureau agreement the Head Delegates attemptedto eliminate the little actual competition remaining on the market. 1089. Aalborg's and Blue Circle's argument based on the alleged increase in the intra-Community trade in cement must be rejected for the reasons set out in paragraph1018 above. 1090. Heidelberger, Titan and Italcementi complain that the Commission failed toconsider whether the behaviour of operators on the market could be explainedotherwise than by collusion. 1091. The Court points out, however, that as the Commission did not base the existenceof the agreement on parallel conduct observed on the market, but on documentaryevidence proving an agreement (see, in particular, paragraphs 979 to 985, 1008 to1010 and 1030 to 1037 above) it was not required to examine whether theoperators' behaviour on the market could be explained otherwise than by thatagreement. 1092. Last, Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem,Buzzi, Asland, Castle, Uniland, Oficemen, Irish Cement, Italcementi, Aker,EUROC, Cementir and Blue Circle assert that, contrary to what is stated in thecontested decision (recital 11, paragraphs 1 and 7), Europe was not the relevantgeographical market. They submit that the cement market at the material timeconsisted of a mosaic of strictly delimited regional markets which did not overlapand were completely independent of one another. 1093. The Court points out (see paragraph 834 above) that, for the purposes of applyingArticle 85, the applicants' objections to the Commission's definition of the marketcannot be viewed in isolation from their objections concerning the effect on tradebetween Member States and the impairment of competition (SPO v Commission,cited in paragraph 485 above, paragraph 75; Enso Española v Commission, cited in paragraph 718 above, paragraph 232; and European Night Services and Others vCommission, cited in paragraph 834 above, paragraphs 90 to 105). 1094. In the present case, the objection to the definition of the relevant market istherefore of no consequence, because the Commission rightly concluded, on thebasis of the documents referred to in recitals 18, 19 and 45 of the contesteddecision, that the Cembureau agreement distorted competition and was liable tohave an appreciable effect on trade between Member States (see paragraphs 1085and 1086 above). Moreover, the very existence of the Cembureau agreement ata pan-European level directly contradicts the applicant's claim that Europe was thegeographic reference market for cement. 4. Conclusions 1095. It follows from all the foregoing that on the basis of the evidence which itpresented in recitals 18, 19 and 45 of the contested decision the Commission wasentitled to conclude, first, that the Cembureau agreement had been concluded atthe meeting of Head Delegates held on 14 January 1983 (contested decision, recital45, paragraph 1), then confirmed at the Head Delegates meetings held on 19March and 7 November 1984 (contested decision, recital 45, paragraph 2) and,second, that the agreement infringed Article 85(1) of the Treaty (contesteddecision, recital 45, paragraph 5, and Article 1). B  Infringement of Article 190 of the Treaty 1096. Cembureau (T-26/95) claims that the Commission failed to explain, either in 'TheFacts of the contested decision or in its 'Legal Assessment, the extent to whichthe various items of evidence of the conclusion and confirmation of the allegedCembureau agreement related to each other. It suspects that the Commissionwished to compensate for that failure and therefore changed its argument andestablished a link between the various items of evidence for the first time in itsdefence. 1097. The Court observes that in recital 45 of the contested decision, which is entitled'Non-transhipment to home markets and appears in the 'Legal Assessment, theCommission maintains at the outset (paragraph 1): 'At the meeting of Head Delegates held on 14 January 1983, Cembureau and itsmembers reached an agreement on non-transhipment to domestic markets and onthe regulation of sales from one country to another ... 1098. In the same recital (paragraph 2) the Commission states that the content of theagreement was confirmed at the meetings of Head Delegates held on 19 Marchand 7 November 1984. 1099. Thus, it is apparent upon reading recital 45, paragraphs 1 and 2, of the contesteddecision that the Commission based its legal assessment of the Cembureauagreement on the facts set out in recitals 18 and 19, entitled 'The Cembureauagreement or Cembureau principle of not transhipping to internal Europeanmarkets and 'Meetings of the Cembureau Head Delegates. 1100. Furthermore, in recital 45 the Commission refers to various specific items ofevidence in support of its argument. It maintains in particular (paragraph 1) thatthe purpose and content of the Cembureau agreement are evident from the letterconvening the meeting of Head Delegates held on 14 January 1983 (contesteddecision, recital 19, paragraph 2; documents 33.126/11552 and 11553) and from theChairman's draft introductory statement for that meeting (contested decision,recital 19, paragraph 5; documents 33.126/11583 to 11585). It also relies(paragraph 2) on the notes on the meeting dated 2 April 1984 (contested decision,recital 19, paragraph 10; documents 33.126/11733 to 11737) to show that theCembureau agreement was confirmed at the meeting of Head Delegates on 19March 1984, and on the 'summary notes dated 12 November 1984 (contesteddecision, recital 19, paragraph 14; documents 33.126/11754 and 11755) inconcluding that it was confirmed again at the meeting of Head Delegates held on7 November 1984. The Commission then states (paragraph 3) that the existenceof the Cembureau agreement and its content are confirmed by the internal BlueCircle memoranda to which it refers in recital 18, paragraphs 2 and 3, of thecontested decision (documents 33.126/11332 to 11334 and 11335 to 11337). Itconsiders (paragraph 4) that Cembureau itself indirectly admitted to the existenceof the Cembureau agreement in the statement which it made on the occasion ofan investigation pursuant to Article 14 of Regulation No 17 and in its reply to thestatement of objections pursuant to Article 15(1) of Regulation No 17 (contesteddecision, recital 18, paragraph 4; documents 33.126/11525 and 13568 to 13573). Itadds (paragraph 6) that, according to the statement dated 25 June 1986 by theChairman of Heracles (contested decision, recital 18, paragraph 5; documents33.126/19875 to 19877), the agreement not to tranship to internal markets hadexisted for some 30 years. However, since it did not have any other evidence toconfirm that the conduct in question had lasted so long, it considered that theCembureau agreement took effect only on 14 January 1983, the date of the HeadDelegates meeting. 1101. In those circumstances, the Court cannot uphold Cembureau's argument that theCommission failed to explain the inter-relationship between the various items ofevidence which it adduced to prove the conclusion and confirmation of theCembureau agreement. 1102. Heidelberger (T-42/95) claims that the Commission fails to specify in its statementof reasons whether the complaint concerning the Head Delegates meeting held on14 January 1983 relates to the conclusion of, or merely the proposal for, anagreement not to tranship to home markets. Heidelberger and Dyckerhoff (T-35/95) consider that the reasons on which the contested decision are based iscontradictory, in that the decision refers to the expressions 'general instructionsand 'proposal (contested decision, recital 45, paragraph 8) to describe what isalleged to be a firm decision adopted at the meeting on 14 January 1983. 1103. That argument must be rejected. It follows unequivocally from recital 45,paragraph 1, of the contested decision that the Commission complains that theparticipants in the meeting held on 14 January 1983 concluded an agreement notto tranship to home markets, not merely that they proposed such an agreement. The references in recital 45, paragraph 8, fourth and fifth subparagraphs, to'general instructions and to 'the proposal made at the meeting held on 14January 1983 relate to the content of the Chairman's draft introductory statementfor that meeting, in which it was proposed to establish 'rules of the game. TheCommission clearly explained in the contested decision that a concurrence of willsemerged at the meeting of 14 January 1983 concerning those 'rules of the game,which related to non-transhipment to home markets and the regulation of salesfrom one country to another. 1104. Dyckerhoff considers that it is contradictory to consider, on the one hand, that theCembureau agreement became binding on all the direct and indirect members ofCembureau on 14 January 1983 and, on the other, that the agreement wasconfirmed at the subsequent meetings of Head Delegates. 1105. The Court points out, however, that the Commission did not contradict itself bystating that the concurrence of wills which emerged at the meeting held on 14January 1983 was confirmed at the meetings held on 19 March and 7 November1984. The confirmation of an agreement necessarily supposes that it was concludedbeforehand. 1106. SFIC (T-36/95) maintains that the reasoning on which the contested decision isbased is circular. In order to demonstrate the existence of the Cembureauagreement the Commission presents a number of decentralised acts, which inreality are not anti-competitive in nature, as measures implementing thatagreement. SFIC claims that in the SO the Commission, using the existence ofnational agreements, had already reasoned from the base upwards in order to callin question the Cembureau agreement and that its reasoning became specious onceit had dropped the proceedings relating to the national objections. 1107. That argument must also be rejected. It follows unequivocally both from the SO(points 9 and 61(a)) and from the contested decision (recitals 18, 19 and 45) thatat the outset the Commission established the existence of the Cembureau agreement on the basis of a body of consistent specific documentary evidence, noton the existence of decentralised local, bilateral or multilateral agreements. 1108. Last, Heracles (T-57/95) maintains that in the contested decision the Commissiondid not sufficiently examine the arguments which it put forward in response to theSO. 1109. That argument is not supported by any concrete evidence on the basis of which theCourt could evaluate its merits. It must therefore be rejected for lack of precision. In any event, the Commission is not required to reply in detail to all the argumentsformulated by the various addressees of the SO during the administrativeproceedings. It is sufficient that the statement of reasons allows the Communityjudicature to review the legality of the contested decision and provides theundertakings and associations concerned with the information necessary for themto be able to determine whether or not the decision is well founded (VBVB andVBBB v Commission, cited in paragraph 846 above, paragraph 22, BAT andReynolds v Commission, cited in paragraph 846 above, paragraph 72; and La Cinqv Commission, cited in paragraph 846 above, paragraph 42). Recitals 18, 19, 28,35, 36, 45, 46, 56 and 59 of the contested decision provide both Heracles and theCourt with sufficient information from which to discern the principal elements offact and of law underlying the reasoning which led the Commission to holdHeracles responsible for the infringements referred to in Article 1, Article 4(4)(d),(f) and (g) and Article 6 of the contested decision.                                                                     C  Breach of the rights of the defence when access was given to the file 1110. Italcementi (T-65/95) and Blue Circle (T-88/95) complain that during theadministrative procedure they were not given access to certain incriminatingdocuments which were invoked in recital 19 of the contested decision to supportthe finding of the infringement referred to in Article 1 of the contested decision(1). In the observations which they filed following the measures of 2 October 1996and 18 and 19 June 1997, CBR (T-25/95), Cembureau (T-26/95), FIC (T-30/95),ENCI (T-31/95), VNC (T-32/95), Dyckerhoff (T-35/95), SFIC (T-36/95), Vicat (T-37/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95),Aalborg (T-44/95), BDZ (T-48/95), Unicem (T-50/95), Buzzi (T-51/95), Rugby (T-53/95), Asland (T-55/95), Castle (T-56/95), Heracles (T-57/95), Uniland (T-58/95),Oficemen (T-59/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL (T-62/95),ATIC (T-63/95), Titan (T-64/95), Italcementi, Holderbank (T-68/95), HornosIbéricos (T-69/95), Aker (T-70/95), EUROC (T-71/95), Cementir (T-87/95) andBlue Circle maintain that during the administrative procedure they were not givenaccess to exculpatory evidence relating to the infringement referred to in Article1 of the contested decision (2). 1. Incriminating evidence 1111. Italcementi and Blue Circle claim that their rights of defence were breached duringthe administrative procedure because they were not given access to a series ofdocuments relating to the Head Delegates meetings, those documents beingincriminating documents referred to in recital 19 of the contested decision (seeparagraph 366 above). They refer to documents 33.126/11560 to 11577 and 11587to 11633 concerning the Head Delegates meeting held on 14 January 1983(contested decision, recital 19, paragraph 6), documents 33.126/11697, 11698, 11701to 11713 and 11732 concerning the Head Delegates meeting on 19 March 1984(contested decision, recital 19, paragraph 11) and documents 33.126/11739 to11747, 11750, 11756 to 11773 and 11774 to 11789 concerning the Head Delegatesmeeting on 7 November 1984 (contested decision, recital 19, paragraph 15). 1112. However, even if all the documents to which Italcementi and Blue Circle refer wereheld inadmissible, it is apparent from the Court's analysis in paragraphs 861 to 1095above that the Commission has adequately proved the existence of the Cembureauagreement. 2. Exculpatory evidence 1113. The Court will first consider arguments relating to exculpatory evidence that wereraised by several applicants following the measures of 2 October 1996 and 18 and19 June 1997. Having regard to the diversity of the other arguments and thedocuments to which they relate, the Court will then consider each argument in turnin the context of one or more cases. 2.1. Arguments raised by several applicants 1114. First, CBR, Cembureau, ENCI, VNC, SFIC, Vicat, Heidelberger, Lafarge, Aalborg,Asland, Castle, Heracles, Irish Cement, Titan, Italcementi, Aker, Euroc, Cementirand Blue Circle maintain in their observations lodged following the measure of 2October 1996 that the whole of the national chapters of the SO and the associateddocuments constituted exculpatory evidence. They observe that none of thedocuments to which the Commission granted access following the measure of 2October 1996 mentions a Cembureau agreement. They consider that if such anagreement had explained or been the driving force behind the conduct of theundertakings concerned there would have been repeated references to it. 1115. Similarly, in the observations which they lodged following the measure of 18 and19 June 1997, Dyckerhoff, Aalborg, Unicem, Heracles, Italcementi, Cementir andBlue Circle state that there is no reference to a Cembureau agreement in the'remainder of the investigation file. 1116. The Court points out again that in the SO (points 9 and 61) and in the contesteddecision (recitals 18, 19 and 45) the Commission established the existence of theCembureau agreement on the basis of specific documentary evidence. Theargument set out in paragraphs 1114 and 1115 above must be rejected, because theapplicants concerned fail to explain how the absence of any direct or indirectreference to the Cembureau agreement in the documents to which they were notgiven access during the administrative procedure is of such a nature as to shed adifferent light on that specific documentary evidence. 1117. Second, in the observations which they lodged following the measure of 2 October1996 CBR, Cembureau, FIC, ENCI, VNC, Dyckerhoff, Aalborg, Irish Cement,Italcementi, Cementir and Blue Circle claim that the documents relating to Norcim,in the file on France, would have been of use to their defence. They observe thatduring the period to which the contested decision relates Norcim contemplatedexporting cement to the United Kingdom, the Netherlands and Denmark. Thedifficulties which Norcim encountered in exporting to those markets had nothingto do with the existence of an alleged agreement not to tranship to home marketsbut was the result of various factors, such as its uncompetitive prices and thedifferences between national standards for the certification of the quality of cement.Moreover, when Norcim was faced with exports from Benelux producers, it did notprotest against what would have been a breach of the Cembureau agreement butsought to ascertain what approach it could adopt to customers which it had lost toforeign competition. Norcim's conduct could not therefore be reconciled with theexistence of the alleged Cembureau agreement. 1118. In support of their arguments, CBR refers to documents 33.126/5626 to 5636, 5641to 5644, 5648 to 5663, 5682 to 5694, 5699 to 5702, 5705 to 5724 and 13484 to13486; Cembureau to documents 33.126/5626, 5627, 5638, 5644, 5653, 5658, 5661,5668, 5673, 5674, 5678, 5689, 5690, 5695, 5696, 5699, 5700, 5712, 5713, 5718, 5722,5727, 5728, 5746, 5748, 13485, 13495, 13545 and 13557; FIC to documents33.126/5660 to 5674, 5677 to 5679, 5680, 5681 and 13495 and 13497; ENCI andVNC to documents 33.126/5626 to 5634, 5651 to 5656, 5660 to 5663, 5671 to 5674,5682 to 5687, 5705 to 5708, 5712 and 5713; Dyckerhoff to documents 33.126/5637to 5644, 5651 to 5669, 5671 to 5674, 5676 to 5681, 5695 to 5698, 5709 to 5724, 5734to 5737, 5741 to 5746, 13484 to 13486, 13511 and 13512; Aalborg to documents33.126/5626 to 5637, 5641, 5644, 5657 to 5659, 5671, 5674 and 13484 to 13486; IrishCement to documents 33.126/5626, 5627, 5638, 5644, 5653, 5658, 5661, 5668, 5673,5674, 5678, 5684, 5689, 5690, 5695, 5696, 5699, 5700, 5712, 5713, 5718, 5722, 5727,5728, 5746, 5748, 13485, 13495, 13545 and 13557; Italcementi to documents33.126/5651, 5653, 5680, 5681, 5705, 5706, 13484, 13485, 13487, 13500, 13503 and13506; Cementir to documents 33.126/5626 to 5634 and 5682 to 5687; and BlueCircle to documents 33.126/5671 to 5724, 13498 to 13509, 13532 and 13542. 1119. CBR adds that had it been aware of Norcim's internal rules (documents33.126/5626 to 5634) it would have been in a position to challenge the validity of the Commission's argument that the existence of exports from Northern France tothe Netherlands demonstrates the European nature of the geographical referencemarket adopted in the SO and in the contested decision. 1120. The Court points out, however, that the Commission has never claimed that theCembureau agreement and its implementing measures had the effect of eliminatingall intra-Community trade in cement and any temptation to engage in inter-Statetrade. According to Article 1 of the contested decision, the Cembureau agreementwas impugned because of its anti-competitive object. At the very most, therefore,the documents referred to in paragraphs 1118 and 1119 above show that Norcim,which is not an addressee of the contested decision, did not always observe theCembureau agreement. 1121. Furthermore, the Cembureau agreement did not prohibit 'traditional or evenstructural inter-State trade (memorandum to the Chairman for the HeadDelegates meeting on 19 March 1984; contested decision, recital 19, paragraph 9;documents 33.126/11728 and 11729) but was opposed to 'random exports (noteson the Head Delegates meeting of 19 March 1984; contested decision, recital 19,paragraph 10; documents 33.126/11733 to 11737), namely uncontrolled orunregulated exports. The existence of imports or exports in a specific case is nottherefore of such a nature as to shed a different light on the specific documentaryevidence of the existence of the Cembureau agreement (SO, points 9 and 61;contested decision, recitals 18, 19 and 45). Finally, Norcim's conduct merelyconfirms the European dimension of the relevant geographical market. 1122. Third, in the observations which they lodged following the measure of 18 and 19June 1997 CBR, Cembureau, FIC, Dyckerhoff, SFIC, Heidelberger, Lafarge,Aalborg, BDZ, Unicem, Heracles, Uniland, Oficemen, Irish Cement, Secil, ATIC,Italcementi and Cementir maintain that the note by Mr Toscano Jr (of Cimpor)dated 17 February 1983 concerning the Head Delegates meeting on 14 January1983 (documents 33.322/314 to 344) would have been of use to their defence,because it supported their argument that the principle of not transhipping to homemarkets was not discussed at that meeting. The document confirms their contentionthat problems of dumping were discussed at that meeting. As the note in questionis a Cimpor internal note, there is no reason to assume that it does not give anaccurate account of all the exchanges of views which took place at the meeting of14 January 1983. At the hearing, Ciments Luxembourgeois, which did not lodgeobservations following the measures of 2 October 1996 and 18 and 19 June 1997(see paragraph 170 above), referred to Mr Toscano Jr's note to support itsallegation that there had been a breach of its rights of defence during theadministrative procedure. 1123. As the Commission acknowledged at the hearing (see paragraph 153 above), MrToscano Jr's note of 17 February 1983 is relevant to the infringement found in Article 1 of the contested decision: it relates to the Head Delegates meeting of 14January 1983. 1124. The Court must therefore assess whether, in the light of the evidence adduced bythe Commission in support of the objection upheld in Article 1 of the contesteddecision, the document would have had even a small chance of altering theoutcome of the administrative procedure if the applicants concerned had been ableto rely on it during that procedure (see paragraph 247 above). 1125. The Commission rightly considered that the documentary evidence referred to inpoints 9 and 61 of the SO and recitals 18, 19 and 45 of the contested decision, andin particular that referred to in paragraphs 979 to 985 above, shows that aconcurrence of wills concerning non-transhipment to home markets and theregulation of sales from one country to another was reached at the Head Delegatesmeeting held on 14 January 1983 and, therefore, that the Cembureau agreementto which Article 1 of the contested decision refers was concluded at that meeting.The same documents, in particular those mentioned in paragraphs 1008 to 1010and 1030 to 1037 above, also reveal that the agreement was confirmed at the HeadDelegates meetings held on 19 March and 7 November 1984. 1126. In reality, Mr Toscano Jr's note was not of such a nature as to shed a different lighton the evidence which the Commission set out in points 9 and 61 of the SO andrecitals 18, 19 and 45 of the contested decision to support its finding that theCembureau agreement existed. 1127. The document in question consists of the notes taken at the meeting by MrToscano Jr (documents 33.322/314 to 317) and eight annexes (documents33.322/318 to 344) consisting of the documents distributed at the meeting. 1128. Had it been Mr Toscano Jr's intention to draw up an exhaustive record of themeeting, his note would have covered all the points discussed and possibly, in thecase of certain points, have referred to one or other of the eight annexes. 1129. In that regard, the Court points out that the note contains no reference to thediscussions concerning the price formation systems. However, it is apparent fromthe final agenda of the meeting (contested decision, recital 19, paragraph 3;document 33.126/11656), the documents referred to in recital 17, paragraphs 2 and3 of the contested decision and the statements of the various applicants during theproceedings before the Court (see paragraph 977 above) that such discussions tookplace at the meeting. Although Mr Van Hove's suggestions concerning faircompetition form part of annex 8 (document 33.322/344), the note refers to thatannex only in the context of the problems of dumping discussed at the meeting:'Mr Van Hove, of the Liaison Committee of the EEC cement industries, presentedan analysis of the common market rules on protection against dumping and observed that all members of the EEC are associated in Cembureau. His analysisis in annex 8. 1130. In those circumstances, Mr Toscano Jr's note cannot be considered an accurate andexhaustive account of the discussions which took place at the meeting of 14 January1983. At the very most, the document in question proves that the problem ofdumped imports was discussed, a point which has never been disputed by theCommission (see paragraph 986 above). It does not show, however, that thediscussions were confined to that point. The note is therefore not of such a natureas to shed a different light on the specific documentary evidence on which theCommission relied in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45), which shows that at the meeting of Head Delegates heldon 14 January 1983 a concurrence of wills emerged on the rule of non-transhipment to home markets and the regulation of sales from one country toanother. 1131. The Court also points out that in both the SO (points 7 and 8) and the contesteddecision (recital 17, paragraphs 2 and 3) the Commission referred to two otherdocuments relating to the Head Delegates meeting held on 14 January 1983,namely the document 'Meeting of Head Delegates, Paris, 14 January 1983  Notesfor the [Chairman] (contested decision, recital 17, paragraph 3; documents33.126/11630 to 11633) and the 'Cimpor note for the meeting of the ExecutiveCommittee of Cembureau held on 25 March 1983 (documents 33.322/308 to 312),which, like Mr Toscano Jr's note (documents 33.322/314 to 344), contain no traceof a discussion of the rule on non-transhipment to home markets and the regulationof sales from one country to another. A number of applicants even consider thatone or other of these documents is the official record of the Head Delegatesmeeting held on 14 January 1983 (see paragraphs 970 and 971 above). In thecontested decision, however, the Commission discounts the argument submitted bya number of parties in their defence during the administrative procedure that thesedocuments showed that only lawful proposals were made at the Head Delegatesmeeting on 14 January 1983 (contested decision, recital 17, paragraph 4). TheCommission cannot see why in those circumstances 'there had to be no record ofthe Head Delegates meeting held on 14 January 1983 (contested decision, recital17, paragraph 4). In other words, the existence of those two documents did notsway the Commission from its conclusion that a concurrence of wills was expressedat the Head Delegates meeting held on 14 January 1983 in relation to theCembureau principle of non-transhipment to home markets and the regulation ofsales from one country to another, and that this concurrence of wills was confirmedat the Head Delegates meetings held on 19 March and 7 November 1984. 1132. The Court concludes, therefore, that if the applicants concerned had had access toMr Toscano Jr's note during the administrative procedure the comments which theycould have made on the basis of that note would not have had even a small chanceof altering the outcome of the administrative procedure. Accordingly, the fact that the document was not made available to the applicants concerned during theadministrative procedure did not prejudice their defence (see paragraph 247above). 2.2. Case T-25/95 CBR v Commission 1133. First, in its observations of 10 February 1997 CBR considers that the nationalchapters in the SO and their associated documents would have allowed it tochallenge, during the administrative procedure, the finding that the geographicalmarket was Europe. In that regard, it refers, first, to documents 33.126/17160 to17172 and 17635 to 17637 in the file relating to the United Kingdom, which showthat the United Kingdom cement producers were seeking to use the CPMA (seeparagraph 91 above) in order to make imports less attractive; second, to thechapters in the SO on Italy (Chapter 13), the United Kingdom (Chapter 14),France (Chapter 15), Spain (Chapter 18) and Portugal (Chapter 19), which showthat the national agreements and concerted practices were an obstacle to importsinto those countries; and, third, to the Ciments Français note dated 11 September1986 (documents 33.126/4115 to 4122), which is at variance with the Commission'sfinding that there were wide differences in prices over a long period, capable ofmeeting exporters' desire for long-term profitability (contested decision, recitals 9and 11, paragraph 6). 1134. The Court points out that in concluding that the Cembureau agreement existed theCommission relied on the specific documentary evidence referred to in points 9 and61 of the SO and in recitals 18, 19 and 45 of the contested decision. If the applicanthad been able, during the administrative procedure, to formulate observations onthe reference market on the basis of the documents referred to in the precedingparagraph that could not have altered the outcome of that procedure. The veryexistence of the Cembureau agreement at pan-European level, clearly shown by theabove documentary evidence, directly contradicts CBR's argument that thegeographical reference market for cement is not Europe. 1135. For the sake of completeness, the Court points out that far from supporting CBR'sargument, the documents to which it refers show that cement is the subject ofcross-border trade and that intra-Community imports exercise competitive pressure.Last, even if it should transpire that there was no 'significant gap between sellingprices in Belgium and France in 1983, 1984 and 1985 (document 33.126/4115mentioned in paragraph 1133 above), that circumstance would not be of such anature as to affect the definition of the geographical reference market adopted inthe contested decision. 1136. As regards, second, the existence of the Cembureau agreement, CBR states in itsobservations of 10 February 1997 that the dates of the alleged national agreementsand concerted practices do not coincide with the date of the alleged Cembureau agreement. It refers in that regard to Norcim's internal rules (documents33.126/5626 to 5634) and to various documents relating to the alleged UnitedKingdom agreement and concerted practice (documents 33.126/17017 to 17015). 1137. However, the difference between the dates on which the national agreements andthe Cembureau agreement were concluded is not of such a nature as to shed adifferent light on the specific documentary evidence on which the Commissionrelied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and45) in establishing the existence of the Cembureau agreement. Even supposing,moreover, that such an argument would have enabled the applicant to demonstratethe absence of any link between the national agreements and concerted practicesand the Cembureau agreement, the fact that it did not have access to thedocuments in question could not prejudice its defence, as ultimately the nationalobjections were not referred to in the contested decision and, in establishing theexistence of the Cembureau agreement, the Commission did not rely on a findingthat the national agreements and concerted practices existed. 1138. In its observations of 12 November 1997 CBR puts forward a number of documentswhich allegedly show that the observations made by its representatives, in particularat the meeting held on 14 January 1983, were in keeping with a general desire tofind a solution to the problems facing the cement industry in compliance with theEuropean competition rules. In that regard, it refers to two internal memorandafrom Lafarge, a memorandum dated 16 June 1982 (document 33.126/6962) and amemorandum dated 1 December 1982 (document 33.126/6966). 1139. However, those internal memoranda are not capable of establishing that there hasbeen a breach of CBR's rights of defence either. 1140. As regards the memorandum dated 16 June 1982, CBR considers it relevant thatit states: 'Indép. All forte pression et CBR a refusé de leur tordre le cou commedemandait D. [Indep. Germ. strong pressure and CBR refused to twist their necksas D. requested]. None the less, the Court points out that the Cembureauagreement did not prohibit all cement exports to a member country of Cembureau.The principle of non-transhipment to home markets did not prohibit 'traditionalor even structural inter-State trade (memorandum to the Chairman for themeeting of Head Delegates held on 19 March 1984; contested decision, recital 19,paragraph 9; documents 33.126/11728 to 11729), but was opposed to 'randomexports, that is to say, uncontrolled or unregulated exports. 'Random exports fromGermany to Belgium were expressly referred to at the meeting held on 19 March1984 (notes on the meeting of Head Delegates held on 19 March 1984; contesteddecision, recital 19, paragraph 10; documents 33.126/11733 to 11737). The fact thatthere were German imports into Belgium in a particular case was therefore not ofsuch a nature as to shed a different light on the specific documentary evidence ofthe existence of the Cembureau agreement. 1141. As regards the internal Lafarge memorandum dated 1 December 1982, CBR relieson an extract from this memorandum which states that Mr Van Hove 'seems toattach too much importance to what the EEC says. However, it is important toplace that extract in the context of the passage in the memorandum from which itis taken: 'He [Mr Van Hove] seems to attach too much importance to what theEEC says; is this because of proximity or rather with an idea at the back of hismind: to unlock the borders without being denounced by the trade as the instigatorof disorder. It is apparent, therefore, that, far from showing that the Cembureauagreement did not exist, the memorandum to which CBR refers confirms that'lock[ed] ... borders were a reality and that it was necessary to avoid 'disorderon the market. 1142. Neither of the internal Lafarge memoranda to which CBR refers is therefore ofsuch a nature as to shed a different light on the specific documentary evidence onwhich the Commission relied in the SO (points 9 and 61) and in the contesteddecision (recitals 18, 19 and 45) in finding that the Cembureau agreement existed.However, the Court will consider below whether those documents shed a differentlight on the question of CBR's participation in the Cembureau agreement (seeparagraphs 4479 to 4483 below). 2.3. Case T-26/95 Cembureau v Commission 1143. First, Cembureau states in its observations of 10 February 1997 that the marketanalysis in the national chapters of the SO and in the national files (morespecifically, the analysis of the German, French, United Kingdom, Italian, Spanish,Portuguese and Greek markets) was clearly relevant to the analysis of theEuropean cement market in the international chapters of the SO. It maintains thatthe national chapters of the SO and the relevant documents should have beenmade available to it during the administrative procedure. 1144. The Court points out that, in concluding that the Cembureau agreement existed,the Commission relied on a body of specific documentary evidence referred to inpoints 9 and 61 of the SO and in recitals 18, 19 and 45 of the contested decision.If the applicant had been able, during the administrative procedure, to submitarguments concerning the reference market using the market analysis in thenational chapters of the SO and in the relevant national files, that could have madeno difference to the outcome of that procedure. The very existence of theCembureau agreement concluded at pan-European level, which is shown by theabovementioned documentary evidence and not by an analysis of the cementproducers' behaviour on the market, confirms the definition of the geographicalreference market adopted in the contested decision (recital 11). 1145. Second, in its observations of 10 February 1997 Cembureau maintains that variousdocuments relating to the national objections provide reasons capable of contradicting the Commission's allegations that the European cement market wasartificially partitioned as a result of the alleged international agreement andconcerted practice. It refers, first, to two extracts from point 49 in Chapter 6 of theSO, on Germany, and to a number of documents in the file on Germany dealingwith fines imposed by the Bundeskartellamt on various national producers inrespect of illegal cartels during the 1980s. These various documents prove theexistence of national cartels but not the existence of a European cartel. As regardsthe file on the United Kingdom, there is no proof that the cement industry wasconcerned with imports before the Greek problem arose in 1986. That filetherefore makes it even less certain that imports from Germany represented athreat which might have been discussed at the Head Delegates meeting held on 19March 1984. It is also apparent from a number of documents in the file on theUnited Kingdom (documents 33.126/17073 to 17075, 17080 to 17091, 17160 to17174, 17178, 17179, 17203 to 17205, 17624, 17625, 17631 to 17633 and 17641 to17654) that at that time the CMF and its members were extremely anxious tocomply with Community competition law and that for that purpose detailed legalopinions had been obtained and regular contact maintained with the UnitedKingdom and European authorities. Access to the file on Italy would have allowedCembureau to argue that the low level of imports on that market was not the resultof the alleged Cembureau agreement but rather of over-capacity on the domesticmarket and the measures taken to regulate the consequences thereof (documents33.126/12485 to 12505). The Spanish file shows that there was no link between theagreements of 'Hispacement (a Spanish export joint venture) and the allegedCembureau agreement (SO, point 88). The low level of imports on that marketshould in fact have been attributed to its oligopolistic structure, characterised byvertical integration (documents 33.322/1372 to 1382, 1391, 1392, 1523, 1524, 1724,1727, 1728, 1730, 1732, 1791 and 1819). 1146. The Court points out, however, that none of the observations which Cembureauconsiders it would have been able to make on the basis of the documents to whichit refers would have been of such a nature as to shed a different light on thespecific documentary evidence on which the Commission relied in the SO (points9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing theexistence of the Cembureau agreement. Furthermore, the fact that in the file onthe United Kingdom there is no reference to the United Kingdom producers' beingconcerned with imports before 1986 would not have undermined the evidentialvalue of the memorandum to the Chairman of Cembureau for the meeting held on19 March 1984 (SO, point 9, paragraph (b); contested decision, recital 19,paragraph 9; documents 33.126/11728 and 11729), in which it is stated that the then'hot spots included '[e]xports from Germany to the United Kingdom andIreland. 1147. Third, in its observations of 10 February 1997 Cembureau maintains that thedocuments in the national files dealing with cement imports support its argumentthat there was no Cembureau agreement. In addition to the documents relating to Norcim (see paragraph 1118 above), Cembureau refers to documents 33.126/14798,14806 and 14807 in the file on France, which show that the concerns expressedrelated to dumped exports from Central Europe, not to intra-Community trade.The only document in the file on France to refer to discussions on defence againstimports is the extract from the record of the meeting of SFIC held on 7 July 1987(document 33.126/14879). However, that document deals exclusively with the lowerquality of imports and the risks for consumers if specifications for imported cementwere not determined by the cement industry. It therefore had no link with analleged Cembureau agreement. It is also apparent from the documents in theUnited Kingdom file (documents 33.126/17631 to 17633) that the Office of FairTrading (hereinafter 'the OFT) considered that the advent of imports in 1986 wasa new event which justified a review of the CPMA (see paragraph 91 above). TheCommission itself echoed that view of the United Kingdom market when itobserved, in the first paragraph of point 37, in Chapter 4 of the SO, that until 1985the United Kingdom had surplus production, which, in Cembureau's view, waslikely to discourage imports. There is therefore a discrepancy in timing between theevidence in the file on the United Kingdom showing that the United Kingdom wasnot threatened by imports until 1986 and the Commission's allegations that thealleged Cembureau agreement was concluded in 1983 in order to deal with a crisisin relation to trade between the members of Cembureau. It also follows from thefile on Spain (documents 33.322/1318 and 1412) that the reference to 'rules of thegame in the handwritten Italcementi note on the Executive Committee meetingheld in Paris on 14 April 1986 (contested decision, recital 17, paragraph 9;document 33.126/3185) concerned the question of antidumping measures, not thealleged Cembureau agreement. Last, Cembureau maintains that although the fileon Portugal contains a number of references to Cembureau meetings (documents33.322/88, 89, 92 and 96) there is no reason to suppose that those meetings werelinked with the alleged Cembureau agreement. 1148. The Court points out, however, that the discussions on the need for technicalspecifications for imported cement in the interests of consumers are not of such anature as to shed a different light on the specific documentary evidence on whichthe Commission relied in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) in concluding that the Cembureau agreement existed. Thesame applies to the circumstance that the alleged surplus production on the UnitedKingdom market restricted imports until 1986. 1149. As regards the documents relating to Spain, the Court points out that Mr Bertrán'sreference to 'rules of the game, reported in the handwritten Italcementi note onthe Executive Committee meeting held on 14 April 1986, was made, contrary to theCommission's claim in the contested decision (recital 17, paragraph 10), in thecontext of a discussion of the problems caused by dumped imports (see paragraph1064 above). However, that error in interpreting the note in question does notaffect the legality of Article 1 of the contested decision (see paragraph 1064 above).Moreover, that document was not included in the body of specific documentary evidence from which the Commission concluded that the Cembureau agreementexisted. The Italcementi note is referred to by the Commission in the contesteddecision (recital 17, paragraph 9) solely in order to illustrate the discussions whichtook place between European cement producers during the period in question on'fair or healthy or correct competition; furthermore, recital 17 is entitled 'Thediscussions on fair or healthy or correct competition. Those discussions were notfound to constitute an infringement in the contested decision. Consequently, evenon the assumption that through its comments Cembureau could have prevented theCommission's error in interpreting the Italcementi note, those comments could nothave altered the outcome of the administrative procedure in the applicant's favouras regards the infringement referred to in Article 1 of the contested decision. 1150. Fourth, Cembureau claims in its observations of 28 November 1997 that themeeting held on 14 January 1983 primarily concerned dumping and that this topicwas considered and discussed both under point 1 ('Imports from Eastern Europe)and under point 2 ('Intra-European trade) on the agenda of that meeting(contested decision, recital 19, paragraph 3; document 33.126/11656). Point 2 onthe agenda was also devoted to a series of legal questions concerning competitionand intra-Community trade, including a presentation of the basing point system (theBPS notified to the Commission in 1981) in the light of Articles 85 and 86 of theTreaty. Cembureau maintains that a number of documents to which it did not haveaccess during the administrative procedure thus cast further doubt on theCommission's view that point 2 of the agenda dealt with discussions which led tothe conclusion of the Cembureau agreement. In that regard, Cembureau refers todocuments 33.126/15443 to 15528 (documents relating to a Franco-German meetingon 6 and 7 December 1983), documents 33.126/8164 to 8166 (draft record of themeeting of the Administrative Board of CBR held on 15 September 1983) anddocuments 33.126/5295 and 5296 (memorandum from Mr Steinbach dated 13 May1983 concerning antidumping measures against the German Democratic Republic,Poland, Czechoslovakia, Yugoslavia and Spain). 1151. The Court points out that the Commission has never denied that at the meeting of14 January 1983 discussions took place on the various cement industries' concernswith dumped imports and on price formation systems (in particular the BPS)(contested decision, recital 19, paragraphs 2 to 15). If the various documents towhich Cembureau refers had been made available to it during the administrativeprocedure, any comments which it might have been able to make on the basis ofthose documents to show that the participants in the meeting had discusseddumping and price formation systems would therefore merely have confirmedmatters which the Commission had fully taken into account. They could not haveobscured the real situation disclosed by the specific documentary evidence on whichthe Commission relied in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) in finding that, in addition to dealing with what may havebeen legitimate topics for discussion, the participants in the meeting held on 14 January 1983 agreed on an unlawful principle of non-transhipment to homemarkets and the regulation of sales from one country to another. 2.4. Case T-30/95 FIC v Commission 1152. First, FIC maintains in its observations of 10 February 1997 that the nationalchapters in the SO are at variance with the Commission's allegation in theinternational chapters of the SO and in the contested decision as to the existenceof the Cembureau agreement. In the national chapters the Commission claimedthat the national markets were isolated by national or regional cartels which madeany imports difficult or even impossible (SO, Chapter 13, point 72 (Italian market),Chapter 14, points 74 and 77 (United Kingdom market), Chapter 15, point 81(French market), Chapter 16, point 84 (German market), Chapter 18, point 89(Spanish market), and Chapter 19, point 91 (Portuguese market)) and which hadthe effect of removing any incentive to export (SO, Chapter 15, point 81 (Frenchmarket) and Chapter 16, point 84 (German market)). 1153. FIC also maintains that after reading the national chapters it could see that therewere 'natural barriers to imports, namely the fact that numerous cementproducers in the States in question had subsidiaries both in their country of originand in other Community countries (concentration of supply at the level of largeinternational groups) and that the majority of these producers had facilities formaking ready-mixed concrete, thus controlling a significant part of demand forcement in their respective countries (policy of vertical integration) (SO, Chapter3, point 32 (Italian market), Chapter 4, point 37 (United Kingdom market),Chapter 5, point 42 (French market), Chapter 6, points 47 and 48 (Germanmarket) and Chapter 8, point 54 (Spanish market)). FIC considers that if it hadhad access to those documents during the administrative procedure it would havebeen able to submit in its defence that, as the undertakings had economic reasonsfor not exporting, they had no need to adopt an illegal principle in order to guardagainst what was clearly a very slight risk. 1154. The Court points out that in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) the Commission established the existence of the Cembureauagreement on the basis of specific documentary evidence. Alternative explanationsbased on an economic analysis of the markets, the existence of national or regionalagreements and natural obstacles to inter-State trade, which the applicant mighthave been able to provide for the low volume of intra-Community trade in cement,would not have been of such a nature as to shed a different light on that specificdocumentary evidence (see paragraphs 263 and 264 above). On the contrary,explanations of the 'natural barriers to inter-State trade in cement (highconcentration of supply and vertical integration policy) would have underlined thegravity of the infringement committed, because by concluding the Cembureau agreement the Head Delegates attempted to eliminate what little actualcompetition remained on the market (see paragraph 1088 above). 1155. Second, FIC submits in its observations of 10 February 1997 that the allegednational cartels predated the conclusion of the alleged Cembureau agreement. Itstresses that there is no link between those national cartels and the Cembureauagreement. 1156. For the reasons given in paragraph 1137 above, that argument would not have beenof such a nature as to alter the outcome of the administrative procedure. 1157. Third, in its observations of 20 January 1998 FIC refers to a letter from Mr VanHove, Chairman of the CLC, to the members of that committee, entitled 'EEC Price formation system (documents 33.126/3242 and 3243). A comparison betweenthe content of that letter and document 33.322/344, which is among the annexes toMr Toscano Jr's notes on the meeting of 14 January 1983 (see paragraph 1122above), unequivocally confirms that the 'suggestions for fair competition which MrVan Hove made at that meeting (contested decision, recital 17, paragraph 3)related to the BPS (see paragraph 852 above). 1158. The Court points out that in the contested decision the Commission rejected theargument that 'the suggestions put forward with the aim of ensuring faircompetition were none other than the suggestions put forward to the Commissionunder the notification procedure carried out by the Belgian and Dutch cementproducers on 16 July 1981 (contested decision, recital 17, paragraph 4). Moreover,the 'suggestions for fair competition are not part of the evidence on which theCommission relied to establish the existence of the Cembureau agreement. Thosesuggestions are referred to, in recital 17, paragraph 3, of the contested decision,solely in order to illustrate the discussions on 'fair or healthy or correctcompetition, discussions which were not ultimately found in the contested decisionto be an infringement. Consequently, the observations which FIC could have made,if it had had access to the documents which it invokes in relation to that point,could not have altered the outcome of the administrative procedure. 1159. Fourth, in its observations of 20 January 1998 FIC asserts that a Heidelberger noteon the meetings of Head Delegates and of the Executive Committee on 7 and 8November 1984 (documents 33.126/5312 to 5315) show that only questionsconcerning prices on overseas export markets and dumped imports from countriesof the East were dealt with at the meeting on 7 November 1984. At no point inthat meeting was the Cembureau principle of non-transhipment to home marketsconfirmed. 1160. The Court points out that the Heidelberger note, which is a brief record of themeetings of the Head Delegates and of the Executive Committee on 7 and 8November 1984, states: 'The conditions of competition on the export market have become increasingly worse. Greece and Spain are the fiercest competitors and areincreasingly drawing all the countries of the Pacific zone with surplus productioninto that price war. The observations which FIC might have made on the basis ofthat document, had it been accessible to it during the administrative procedure,would not have been of such a nature as to shed a different light on the 'summarynotes dated 12 November 1984 (documents 33.126/11754 and 11755) from whichthe Commission rightly concluded that the Cembureau agreement had beenconfirmed at the Head Delegates meeting on 7 November 1984, because those'summary notes show that at that meeting the channelling of Greek and Spanishproduction surpluses had been endorsed by Cembureau and its members in orderto avoid destabilising European markets (SO, point 9(c); contested decision, recital45, paragraph 2). In any event, those observations would not have shed a differentlight on the documentary evidence on which the Commission relied in the SO(points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in findingthat the Cembureau agreement had been concluded at the Head Delegates meetingheld on 14 January 1983. 1161. Fifth, FIC submits in its observations of 10 February 1997 that the documents inthe national files constitute fresh evidence that the members of Cembureauintended to comply with the rules of competition law. Thus it is apparent from thedocuments concerning the chapter of the SO on the United Kingdom that theUnited Kingdom cement industry was always scrupulously careful to comply withthe law, in particular competition law. FIC refers in that regard to the minutes ofthe meetings of the CMF held on 4 September 1985 (documents 33.126/17086 to17091), 2 October 1985 (documents 33.126/17092 to 17098), 16 October 1985(documents 33.126/17099 to 17102), 6 August 1986 (documents 33.126/17160 to17165), 3 September 1986 (documents 33.126/17166 to 17172), 16 September 1986(documents 33.126/17173 and 17174), 5 November 1986 (documents 33.126/17180to 17184), 11 February 1987 (documents 33.126/17203 to 17205; see also pressrelease dated 12 February 1987 concerning that meeting (document 33.126/17858))and 4 March 1987 (documents 33.126/17206 to 17209). In the light of the CMF'sconstant concern to avoid any infringement of competition law, it is difficult toaccept that it could have agreed to infringe those rules by concluding theCembureau agreement. In its observations of 20 January 1998 FIC relies on anumber of documents which, in its view, clearly convey the European cementindustries' intention to comply with competition law and which would thereforehave constituted a good deal of evidence of use to its defence during theadministrative procedure. It refers, first, to a Hispacement document of August1984 (documents 33.322/3081 to 3087) concerning a discussion of the agreementenvisaged between Spanish and Greek producers concerning the CMA (seeparagraph 1040 above) and which shows that the parties to that agreement tookinto consideration 'possible breaches of (Spanish and European) law governingpractices which restrict competition. FIC then refers to an Italcementi documentconcerning the draft minutes of the meeting of the Cembureau ExecutiveCommittee held on 5 and 6 December 1985 (documents 33.126/3190 to 3196), which records a suggestion by Mr Bertrán that at its next meeting the CLC shouldexamine 'the advisability of defining, in agreement with DG IV of the EEC, faircompetition rules in order to be ready to act should the necessity arise. Last, itagain relies on the record of the meetings of the Head Delegates and of theExecutive Committee on 7 and 8 November 1984 found at Heidelberger's premises(documents 33.126/5312 to 5315), which refers to a desire to 'deal with the matterin accordance with the law on restrictive agreements. 1162. The Court observes, however, that access to the various documents referred to byFIC, which allegedly convey the concern of the various parties (the CMF, theparties to the agreement on the CMA, Mr Bertrán of Asland, and Heidelberger)to comply with competition law, would not in any way have enabled it to convincethe Commission of its own intention always to act in accordance with the law. Inany event, none of those documents, which relate to national aspects (documents33.126/17086 to 17102, 17160 to 17174, 17180 to 17184, 17203 to 17209 and 17858),the overseas export policy (documents 33.322/3081 to 3087), the anti-dumpingmeasures (documents 33.126/3190 to 3196) or concentrations of undertakings(documents 33.126/5312 to 5315) rather than to intra-Community trade, would haveshed a different light on the specific documentary evidence on which theCommission relied in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement. 1163. Sixth, FIC claims in its observations of 10 February 1997 that none of thedocuments in the national files give grounds for concluding that Cembureau playedthe slightest role in monitoring imports. The documents relating to the nationalchapters of the SO show that the first producers to be affected by imports fromGreece, namely the United Kingdom and Italian producers, attempted to deal withthe problem by their own means. Thus, the only joint reaction by United Kingdomcement producers when confronted by imports from Greece took the form ofcontacts with their parliamentary and government authorities and with theCommission; there was not the slightest involvement of Cembureau. FIC refers inthat regard to the minutes of the meetings of the CMF held on 6 August 1986(documents 33.126/17160 to 17165), 3 September 1986 (documents 33.126/17166to 17172), 8 October 1986 (documents 33.126/17178 and 17179) and 5 November1986 (documents 33.126/17180 to 17184). These direct contacts, without theslightest Cembureau involvement, between European producers and publicauthorities or between the authorities of the various Member States threatened byimports from Greece are again confirmed in the minutes of the meeting ofOficemen held on 18 September 1986 (documents 33.322/1319 to 1323) and in theminutes of the meetings of the CMF held on 8 October 1986 (documents33.126/17178 and 17179) and 3 June 1987 (documents 33.126/17219 to 17225). Inorder to meet imports from Greece, the Italian producers concentrated oncontrolling domestic demand for cement by acquiring ready-mix concrete companiesor by concluding agreements with them. They clearly also concluded agreementswith Yugoslavian cement producers, seeking to purchase part of their production directly in order to avoid imports from those producers. None of the documents inthe file on Italy contains any reference to action by Cembureau (documents33.126/2945 to 2948, 2949 to 2951, 15990 to 15997, 12145 to 12341 and 16235 to16282). In conclusion, FIC considers that taken as a whole the documents to whichit refers would have enabled it to argue that the fact that Cembureau had nocoordinating or initiating role in combating imports from Greece was furtherconfirmation that the alleged Cembureau agreement did not exist. 1164. The Court points out that in concluding that the Cembureau agreement existed theCommission did not rely on Cembureau's involvement in measures to monitorimports, in particular measures designed to resolve the problem caused by importsfrom Greece, but, rather, on specific documentary evidence. The various documentson which FIC relies could not have shed a different light on that evidence. 1165. Seventh, and last, in its observations of 10 February 1997 FIC relies on the recordof the meeting of the Executive Committee of Oficemen held on 13 February 1986(documents 33.322/1311 to 1318), as confirmation that the only plausibleexplanation for the reference in the Italcementi note on the meeting of theExecutive Committee of Cembureau held on 14 April 1986 (contested decision,recital 17, paragraph 9; document 33.126/3185) to the need to adopt 'rules of thegame to avoid 'improper competition was to be found in the fight againstdumped imports from the East rather than in any principle of non-transhipment tohome markets within the Community, which the Commission has always refused toaccept. 1166. However, for the reasons given in paragraph 1149 above, that argument would nothave been of such a nature as to alter the outcome of the administrative procedure. 2.5. Cases T-31/95 ENCI v Commission and T-32/95 VNC v Commission 1167. In the pleadings lodged following the measure of 2 October 1996 ENCI and VNCstate that the alleged national cartels predated the conclusion of the allegedCembureau agreement. 1168. However, for the reasons given in paragraph 1137 above, that argument would nothave been of such a nature as to alter the outcome of the administrative procedure. 1169. In the pleadings lodged following the measure of 18 and 19 June 1997 ENCI andVNC claim that four documents are at variance with the existence of theCembureau agreement. First, they refer to the minutes of the meeting of the Boardof Directors of the Belgian company Obourg held on 26 June 1987 (documents33.126/375 to 379), which mention imports into the Netherlands of cement fromSpain and France. At point 2 of the minutes it is also stated: 'Retaliatory measures against Spanish cement manufacturers are difficult to envisage, while those againstFrench producers are being reviewed pending a later decision. Second, ENCI andVNC refer to the document of the Compagnie des Ciments Belges ('the CCB)entitled 'Basic information 1987 (documents 33.126/1629 and 1634 to 1641), whichobserves in regard to the cement market: '[In the Netherlands] competition fromcertain brands of German cement is still very keen on the market. In Zealand weare finding French bagged cement (point 1.1.2). In the same document it is added(points 2.1.1 and 2.1.2): 'The extended crisis in building and public works meansthat competition, in particular German competition, is very active [on the Belgianand Netherlands markets]. The document also refers to cement exports to theNetherlands by the CCB (point 4.1). Third, the applicants refer to the CCBdocument entitled 'Annual information 1989 (documents 33.126/1768 to 1783),which confirms as follows in regard to the Netherlands (point 1.1.2): 'Competitionfrom certain brands of German cement is still very keen on the market. In Zealandwe are finding French cement in bags and in bulk. There are also imports ofSpanish and Greek cement and, in smaller quantities, imports of cement from theGDR, Poland and Yugoslavia. This document states (points 2.1.1 and 2.1.2) that'in spite of a significant resumption of construction in 1988, German competitionis still present on the Belgian and Netherlands markets, and that in theNetherlands 'Spanish and Greek cement has also appeared. Fourth, and last, theapplicants refer to a Heidelberger document (document 33.126/3447), in which itis stated that sales by Heidelberger on the Netherlands market rose by 36.6% in1987. 1170. The Court points out that the Commission has never claimed that the Cembureauagreement and the implementing measures had the effect of eliminating all intra-Community trade in cement and any temptation to engage in inter-State trade.According to Article 1 of the contested decision, the Cembureau agreement wasfound to constitute an infringement because of its anti-competitive object.Furthermore, it did not prohibit 'traditional or even structural inter-State trade ...for example ... exports from Germany and Belgium to the Netherlands(memorandum to the Chairman for the Head Delegates meeting on 19 March1984; contested decision, recital 19, paragraph 9; documents 33.126/11728 and11729), but was opposed to 'random exports, namely uncontrolled or unregulatedexports; the 'random exports to the Netherlands and Belgium were expresslymentioned at the meeting of 19 March 1984 (notes on the Head Delegates meetingof 19 March 1984; contested decision, recital 19, paragraph 10; documents33.126/11733 to 11737). The fact that the documents referred to in the precedingparagraph attest to the existence of certain 'random exports to the Netherlandsand Belgium, of which the Head Delegates were aware, shows at most that theCembureau agreement was not always observed by certain Community producers.It is not of such a nature as to shed a different light on the specific documentaryevidence on which the Commission relied in the SO (points 9 and 61) and thecontested decision (recitals 18, 19 and 45) in finding that the Cembureauagreement existed. 2.6. Case T-35/95 Dyckerhoff v Commission 1171. First, Dyckerhoff claims that it is apparent from examining the national files andthe national chapters in the SO that the Commission itself proceeds from theprinciple that the markets are delimited by national borders; the file also containsmuch additional evidence of the cement markets' natural frontiers. In itsobservations of 7 February 1997 Dyckerhoff claims that a number of passages inthe national chapters of the SO on Italy (chapter 3, points 32 to 35), the UnitedKingdom (chapter 4, points 37 to 41), France (chapter 5, points 42 to 46) andGreece (chapter 7, points 50 to 53) and also documents 33.126/2985, 3017 to 3032,3099 to 3105, 3158 to 3166, 5626 to 5634, 5789, 5791, 11993, 12083 to 12087, 12136to 12140, 12142 and 12143, 14496, 14528, 14530, 17035 to 17051, 17863 to 17865,19398 to 19401 and 19394 and documents 27.997/1 to 7, show that the broadlimitation of cement markets is the consequence of the existence of nationalagreements and joint ventures, State price controls and the vertical integration ofnational markets, which allows many local producers to control demand on theirmarkets. In its observations of 5 January 1998 Dyckerhoff states that the'remainder of the investigation file contains a number of additional documentswhich confirm that the cement markets do in fact have natural frontiers. It statesthat documents 33.126/299, 2105 to 2113, 4132 to 4139 and 5677 to 5679 refer toadministrative and economic obstacles which hindered trade between MemberStates; that documents 33.126/5883, 8139, 10279 to 10283, 12139 to 12141 and13297 to 13319 attest to the existence of national regulations and nationalorganisations of the markets which made access to those national markets virtuallyimpossible; that documents 33.126/6112 to 6128 and 6746 to 6765 establish that theeffect of the compartmentalisation of the markets was strengthened by nationalprice controls; that documents 33.126/8630 to 8639, 14691 to 14711, 16931 to 18140,18296 to 18311, 18338 to 18340, 18359 to 18361, 18379, 18380, 18398 to 18400 and18417 to 18419 show that there was cross-shareholding between European cementproducers which provided more advantageous opportunities to secure outlets onregional and national markets than did localised crossborder sales operations. 1172. The Court points out, however, that, for the reasons given in paragraph 1154above, those arguments would not have been of such a nature as to alter theoutcome of the administrative procedure. 1173. Second, in its observations of 5 January 1998 Dyckerhoff claims that documents33.126/272 to 275, 719, 1852, 4125 to 4127, 5926, 5938, 6888, 6897, 7129, 14627,14630, 14637, 14661, 14663, 14691, 14711 and 18173 show that there was exportactivity despite the natural barriers to the market that otherwise existed. Thoseactivities were not criticised or censured within Cembureau and that is at variancewith the existence of the Cembureau agreement. 1174. The Court points out that the principle of non-transhipment to home markets didnot prohibit 'traditional or even structural inter-State trade, e.g. exports fromGermany and Belgium to the Netherlands (memorandum to the Chairman for themeeting of Head Delegates held on 19 March 1984) but was opposed to 'randomexports (notes on the meeting of Head Delegates held on 19 March 1984), namelyuncontrolled or unregulated exports. The fact that there may have been exports ina specific case is not therefore of such a nature as to shed a different light on thespecific documentary evidence on which the Commission relied in the SO (points9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing theexistence of the Cembureau agreement. 1175. Third, in its observations of 7 February 1997 Dyckerhoff argues that theCembureau agreement did not exist since (a) there was no causal link between thatagreement and the national concerted practices and (b) there was no link betweenthe documents relating to the alleged national agreements and concerted practicesand the alleged Cembureau agreement. Point (a) is established by the content ofcertain passages in the national chapters of the SO (chapter 4, points 37 and 38)and by document 33.126/5726, which show that the CPMA (see paragraph 91above) and certain national agreements and concerted practices existed well beforethe meeting of 14 January 1983. Point (b) is established by the fact that there is noreference to a European agreement in the documents relating to the allegednational agreements and concerted practices and by the fact that the nationalassociations and national groups were preoccupied with imports from otherMember States. In that regard, Dyckerhoff refers to a number of documentsrelating to France, Portugal and Spain, and Greece. In the case of France, it refersto the documents relating to Norcim (see paragraph 1118 above). In the case ofSpain and Portugal, it refers to points 54 to 56 of the SO and to documentsshowing the existence of a principle of non-delivery from Spain to Portugal and viceversa (documents 33.322/513, 575, 996 to 1010, 1037, 1038, 1400, 1406, 1407 and2901). It also points out that the documents relating to that bilateral concertedpractice make no reference to an agreement at European level. Furthermore,correspondence by telex in 1988 (documents 33.322/527 to 529) reveals that Cimporrefused to deliver cement in the Benelux countries but did not invoke the allegedCembureau agreement to justify its refusal. In the case of Greece, Dyckerhoffclaims that the file on that country contains a number of documents relating to thealleged Cembureau principle which were not communicated to it during theadministrative procedure (documents 33.126/19875 to 19887). 1176. The Court finds, however, that the various documents to which Dyckerhoff refersdo not show that its rights of defence were infringed. The absence of any referenceto the Cembureau agreement, the fact that some national agreements andconcerted practices predated that agreement and the fact that the nationalassociations and national groups were preoccupied with imports from otherMember States are not of such a nature as to shed a different light on the specificdocumentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing that theCembureau agreement existed. 1177. Furthermore, if the applicant had been able to show during the administrativeprocedure, on the basis of the documents referred to in paragraph 1175 above, thatthere was no link between the national agreements and concerted practices and theCembureau agreement, that would not have altered the outcome of that procedure,since the proof of the existence of the Cembureau agreement does not in any waydepend on the existence of the national agreements and concerted practices. 1178. Last, Dyckerhoff cannot claim that its rights of defence were infringed by theCommission's failure to grant it access to certain documents in the file on Greecerelating to the alleged Cembureau agreement (documents 33.126/19875 to 19877).Those documents set out the statement made by Mr Kalogeropoulos at theHeracles Board Meeting held on 25 June 1986. The Court points out that thepassage from that statement, reproduced in recital 18, paragraph 5, of thecontested decision, was quoted verbatim in point 9 of the international part of theSO. Moreover, the documents in question were in the Box (see paragraph 95above). In those circumstances, they must be regarded as evidence which can beused against Dyckerhoff. As regards documents 33.126/19878 to 19887, it issufficient to observe that the Commission did not use them either in the SO or inthe contested decision to prove the existence of the Cembureau agreement.Furthermore, Dyckerhoff has not submitted anything to show that those documentsmay have contained evidence that would exculpate it. 1179. Fourth, in its observations of 5 January 1998 Dyckerhoff claims that variousdocuments show that protection against dumped cement imports from EasternEurope was uppermost in the minds of the European industry in the meetings anddiscussions reported in 1983 and 1984. It refers in that regard to the letter dated16 November 1982 containing an invitation to the Head Delegates meeting on 14January 1983 (document 33.322/346), the minutes of the meeting of FIC held on8 December 1982 (documents 33.126/2026 to 2033), the minutes of the Franco-German meeting held on 6 and 7 December 1983 (documents 33.126/15494 to15496), the minutes of the meeting of the Board of Directors of FIC held on 10October 1984 (documents 33.126/2056 to 2062), the minutes of the meeting of theExecutive Committee of Cembureau held on 8 November 1984 (documents33.126/10485 and 10486), documents from BDZ (documents 33.126/5198 to 5208and 5243 to 5251), an internal Blue Circle memorandum (documents 33.126/10840and 10841) and a letter from Heidelberger to Cembureau dated 1 December 1987(documents 33.126/3604 and 3605). 1180. However, those documents are not of such a nature as to shed a different light onthe various items of specific documentary evidence referred to in the SO (points9 and 61) and in the contested decision (recitals 18, 19 and 45), which show thatat the meeting of 14 January 1983 the Head Delegates agreed on the principle of non-transhipment to home markets and the regulation of sales from one countryto another. At the very most, the documents in question prove that the problemsof dumping and cement imports from Eastern Europe were also discussed at themeeting of 14 January 1983, a point which the Commission has never disputed (seecontested decision, recital 19, paragraphs 2 to 15). Consequently, any observationswhich the applicant might have been able to make had it had access to thedocuments in question could not have altered the outcome of the administrativeprocedure. 2.7. Case T-36/95 SFIC v Commission 1181. First, in its observations of 10 February 1997 SFIC relies on a number ofdocuments in the file on the United Kingdom, relating to the CPMA (seeparagraph 91 above) (file IV/27.997 and documents 33.126/17017 to 17034, 17863to 17865 and 17867 to 17873). This price system, which was notified to theCommission and approved by the United Kingdom competition authorities, issimilar to the BPS (see paragraph 852 above), which had also been notified to theCommission in 1981 and which was referred to at the Head Delegates meeting on14 January 1983. SFIC considers that those documents would have been of use inshowing that the BPS and, more generally, the discussions at the Cembureaumeeting on 14 January 1983 were lawful. The same applies to the Italian documentrelating to the system of standardisation of delivered prices of cement, the'Incontro Nolo system (documents 33.126/11913 to 11919), which also resembledthe BPS to a certain extent. 1182. In its observations of 7 January 1998 SFIC also relies on a series of documents towhich it was granted access following the measure of 18 and 19 June 1997(documents 33.126/623, 632 to 673, 674, 730, 1175 to 1178, 1219 to 1221, 1552 to1554, 1960, 1961, 2026 to 2028, 2050, 2051, 2058, 2066, 2084, 2545 to 2553, 2591to 2609, 2682, 2683, 5038 to 5051, 5105 to 5119, 8098 to 8104, 8131, 8132, 8146 to8148, 8151, 9031 to 9048, 9050 to 9053, 9068 to 9074 and 9103 to 9112) as showingthat the discussions at the meeting of 14 January 1983 on price formation systems,in particular the BPS introduced by the Belgian, Netherlands and Germanindustries, were lawful. According to SFIC, it is also clear from one or other ofdocuments 33.126/2545 to 2553, 2591 to 2609, 2682, 2683, 9050 to 9053, 9068 to9074 and 9103 to 9112 that examination of the applicability of the BPS and theCommission's analysis of its compatibility with European competition law were notlimited to the Belgian, Netherlands and German markets but concerned all theCommunity markets. Accordingly, SFIC should have been given access to thosedocuments during the administrative procedure and would thereby have been in aposition to put forward solid facts to support its assertions that the Commission wasinformed of the European producers' deliberations concerning the BPS and thatthe reference to that price formation system at the meeting on 14 January 1983 wasperfectly legitimate, there being no reason at that time to presume what the Commission's official reaction to that subject would be. Other documents in theinvestigation file (documents 33.126/2047, 2413 and 16410 to 16413) show that atthe material time the European cement producers were concerned about dumpedimports from the Eastern Europe countries. 1183. The Court finds, however, that the documents in question are not of such a natureas to shed a different light on the various items of specific documentary evidencereferred to in the SO (points 9 and 61) and in the contested decision (recitals 18,19 and 45), which show that at the meeting held on 14 January 1983 the HeadDelegates agreed on the principle of non-transhipment to home markets and theregulation of sales from one country to another. At the very most, they prove thatthe problems of dumping and the BPS were also discussed at the meeting on 14January 1983. The Commission has never disputed either that price formationsystems, in particular the BPS, and antidumping measures were discussed at themeeting of 14 January 1983 (contested decision, recital 19, paragraphs 2 to 15) orthat there were contacts between certain European industries and it regarding thebasing point system (contested decision, recital 17, paragraph 4). 1184. Second, in its observations of 7 January 1998 SFIC claims that the record of themeeting of the Management Committee of FIC held on 27 June 1982 (documents33.126/1890, 1896 and 1897) confirms its claim that the Head Delegates meetingswere not covered by its articles of association. 1185. The Court considers that there is no need to analyse the content of that record indetail. It suffices to point out that it relates to an argument which had been raisedin a number of replies to the SO, including SFIC's, and that it is fully discussed bythe Commission in the contested decision (recital 44, paragraph 3). Accordingly,any further comments that SFIC might have made on that point could not havealtered the outcome of the administrative procedure. 1186. Third, SFIC claims in its observations of 7 January 1998 that various documents towhich it did not have access during the administrative procedure (documents33.126/2575 to 2585 and 2591 to 2609)  in particular a university study dated 1977on the method of fixing prices in the cement industry, which criticises the Phlipsstudy, the only one quoted by the Commission in the contested decision (recital 10) would have supported its argument based on the economic analysis of the cementmarket. 1187. The Court considers, however, that any alternative explanations by SFIC based onthe economic analysis of the cement market would not have been of such a natureas to shed a different light on the specific documentary evidence on which theCommission relied in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) in concluding that the Cembureau agreement existed (seeparagraphs 263 and 264 above). 1188. Fourth, in its observations of 7 January 1998 SFIC claims that notes drawn up bySECIL following the General Assembly of Cembureau on 11 to 13 June 1985(documents 33.322/119 to 123) show that the members of Cembureau wereconcerned with the need to restructure the industry and with governmentalreluctance to de-restrict prices. 1189. However, SFIC does not specify how access to those documents could have alteredthe outcome of the administrative procedure. In any event, those documents couldnot have shed a different light on the specific documentary evidence of theCembureau agreement. The fact that it did not have access to those documentsduring the administrative procedure did not therefore prejudice SFIC's defence. 2.8. Case T-37/95 Vicat v Commission 1190. First, Vicat states that in each chapter of the SO devoted to a particular nationalagreement and/or concerted practice, the Commission found that there werenational agreements and concerted practices which had the effect of renderingimports from other Member States difficult, or even impossible. It cites passagesfrom the chapters of the SO on Italy (chapters 3 and 13), Spain (chapters 8 and18), the United Kingdom (chapters 4 and 14), Portugal (chapters 9 and 19) andGermany (chapters 6 and 16). The fact that Vicat did not have access to thosepassages of the SO deprived it of the opportunity to provide an alternativeexplanation for the low level of crossborder trade in cement to which theCommission refers on numerous occasions in order to establish the existence of theCembureau agreement. 1191. The Court points out that in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) the Commission relied on specific documentary evidencein establishing the existence of the Cembureau agreement. Accordingly, anyalternative explanations for the low level of trade between the member countriesof Cembureau that Vicat could have put forward had it been given access to theentire SO during the administrative procedure would not have been of such anature as to shed a different light on that documentary evidence (see paragraphs263 and 264 above). 1192. Second, in its observations of 7 February 1997 Vicat alleges that documentsdemonstrate that the alleged national agreements and concerted practices wereindependent of Cembureau and of the role which the Commission sought toattribute to it. Vicat states that there is no reference to Cembureau or theCembureau agreement in the documents which it was able to consult following themeasure of 2 October 1996 and that the alleged national cartels predated theconclusion of the alleged Cembureau agreement. Vicat refers to the chapters of theSO on Italy (chapters 3 and 13) and Portugal (chapters 9 and 19), to documents33.126/2921 to 2931, 3017 to 3032, 3053 to 3059, 3099 to 3108, 3110 to 3126, 3150 to 3154, 3158 to 3160, 3163 to 3166, 3365, 11990, 11991, 12081 to 12096, 12136 to12140, 12142 and 12143, relating to the objections concerning Italy, documents33.322/1226 to 1228, 1300 to 1310, 1329 to 1332 and 1365 to 1368, relating to theobjections concerning Spain, documents 33.322/905, 1019 and 1020, 1072, 1406 to1408, 1410 to 1412, 2897 to 2903 and 2905, relating to the objections concerningPortugal, and documents 33.126/17017 to 17053, 17202 to 17205, 17620 to 17623and 17863 to 17865, relating to the objections concerning the United Kingdom. 1193. The Court points out, however, that, for the reasons given in paragraphs 1176 and1177 above, that argument would not have been of such a nature as to alter theoutcome of the administrative procedure. 1194. Third, in its observations of 8 January 1998 Vicat refers to an internal CimentsFrançais memorandum dated 22 September 1988 relating to the organisation ofCembureau (documents 33.126/4037 to 4039), whose content, it claims, shows thatCembureau and the Head Delegates could not have played any role in the areascalled in question by the Commission in the contested decision. 1195. Vicat's interpretation of the Ciments Français memorandum cannot be accepted.It cannot be inferred from a document dated 22 September 1988, referring tostructural changes within Cembureau envisaged at the end of 1987 and to thesituation existing at that time, that at the material time, that is to say in 1983 and1984, several years before that memorandum was drafted, Cembureau and theHead Delegates were unable to play any role in the areas referred to in thecontested decision. The fact that it did not have access to that document during theadministrative procedure did not therefore affect Vicat's rights of defence. 2.9. Case T-39/95 Ciments Français v Commission 1196. In its observations of 21 November 1997 Ciments Français claims that a numberof documents confirm that the discussions at the meeting of Cembureau on 14January 1983 and at the meeting of the Executive Committee on 25 March 1983concerned a study of a new pricing system for cement rather than an alleged ruleon non-transhipment to home markets. It refers in that regard to an extract fromthe minutes of a meeting of the CLC held on 7 July 1977 (documents 33.126/2545to 2548); a letter dated 21 November 1977 from the Netherlands Head Delegateto the General Delegate of the CLC (documents 33.126/2569 to 2571); a letterfrom Mr Van Hove dated 22 February 1978 (documents 33.126/9049 to 9058); aletter dated 15 June 1978 sent on behalf of the German, Belgian and Netherlandsproducers to Mr Witlox, of the Commission (documents 33.126/7858 to 7860); amemorandum dated 21 December 1978 concerning the study of a new cementpricing system (documents 33.126/7861 to 7875); a letter from Mr Van Hove dated23 December 1981 (documents 33.126/3242 and 3243); a draft letter to theCommission dated 21 June 1983 (documents 33.126/5038 to 5051); a report of FIC Board of Directors dated 5 July 1983 (documents 33.126/2050 to 2053); and anundated note on the background to relations between Belgian cement producersand the Commission found at the registered office of Ciments d'Obourg(documents 33.126/630 to 632). Ciments Français concludes from all thosedocuments that the Commission could not in any event have taken the view thatthe discussions on price formation systems within Cembureau in 1983, in particularthose at the meetings held on 14 January and 25 March 1983, constituted evidenceof an alleged general agreement not to tranship to home markets. 1197. The Court finds, however, that the comments by Ciments Français on the basis ofthe documents to which it refers do not give grounds for concluding that there hasbeen an infringement of its rights of defence. The Commission did not take theview that the discussions on the introduction of a new price formation system at themeeting on 14 January 1983 led to the conclusion of the Cembureau agreement.It has always stated that at the meeting held on 14 January 1983, as well as possiblydiscussing such a price formation system, the Head Delegates concluded a market-sharing agreement, known as the Cembureau agreement. The documents to whichCiments Français now refers shed no new light on the specific documentaryevidence used by the Commission both in the SO (points 9 and 61) and in thecontested decision (recitals 18, 19 and 45) in establishing the existence of thatagreement. It follows that the argument examined must be rejected. 2.10. Case T-42/95 Heidelberger v Commission 1198. In its observations of 10 February 1997 Heidelberger states, first, that thedocuments relating to the national objections in the SO show that the nationalassociations and undertakings of any particular Member State were concerned onlywith the situation on the market in that Member State. Moreover, the documentsrelating to the national chapters of the SO refer to the existence of national andbilateral agreements and concerted practices but not of a pan-European agreement.It cannot therefore be concluded from the national files that there was anagreement at European level which led to the compartmentalisation of the nationalmarkets pursuant to an alleged Cembureau agreement. In support of its argumentHeidelberger refers to documents 33.126/2921 to 2925, 3017 to 3036, 3081 to 3083,12508, 12509, 19188, 19194 and 19218. 1199. However, those documents do not show that there has been a breach ofHeidelberger's rights of defence. The absence of any reference to the Cembureauagreement in the documents to which it did not have access during theadministrative procedure and the existence of documents relating to measuresdecided upon by undertakings and their associations purely at national level, evenassuming that those measures were established by the documents on whichHeidelberger relies, are not of such a nature as to shed a different light on thespecific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in finding that theCembureau agreement existed. 1200. Second, in its observations of 20 February 1998 Heidelberger claims that a numberof documents show that the participants in the meeting held on 14 January 1983did not conclude the Cembureau agreement. It refers to a record of the meetingof FIC held on 8 December 1982 (document 33.126/2027) and an internal CBRnote concerning preparation for the meeting of 14 January 1983 showing that theintra-Community problems to be discussed at that meeting concerned the BPS (seeparagraph 852 above) and export aid (document 33.126/8132). It also refers todocuments from Obourg, CBR, Schwenk, BDZ, SFIC and FIC showing that themain concern at that time was dumped imports (documents 33.126/186, 2059, 2067,2102, 15443 to 15446, 8166, 5295, 5212 and 5213). 1201. However, the documents relied on are not of such a nature as to shed a differentlight on the various items of specific documentary evidence referred to in the SO(points 9 and 61) and in the contested decision (recitals 18, 19 and 45), which showthat at their meeting on 14 January 1983 the Head Delegates agreed on theprinciple of non-transhipment to home markets and the regulation of sales fromone country to another. At the very most those documents show that the problemsof dumping, the BPS and export aid were also discussed at the meeting. TheCommission has never disputed the fact that discussions on price formationsystems, in particular on the BPS, and on antidumping measures took place at thatmeeting (contested decision, recital 19, paragraphs 2 to 15). 1202. Third, in its observations of 20 February 1998 Heidelberger submits a number ofdocuments which, it claims, show that the European cement market was not theobject of a network of bilateral and multilateral agreements. It refers to the writtenversion of a speech made in Vancouver in 1987, from which it is clear that allEuropean cement producers wished to acquire a larger share of the market inEurope (document 33.126/8618), and to a Ciments Français memorandumdescribing the competitive situation on the international cement market, from whichit is clear that a number of European cement producers wanted to enterneighbouring European markets (document 33.126/4380). 1203. Heidelberger's interpretation of document 33.126/8618 cannot be accepted.Although the assertion that all European cement producers wished to acquire alarger share of the market is to be found among the claims made in that document,the context of that assertion shows that it does not have the meaning whichHeidelberger seeks to ascribe to it. It is actually the second part of a sentence inpoint 2 of that document, which is worded as follows: 'All European cementcompanies are working on further integration in ready mixed concrete andaggregates and are trying to acquire bigger market share in these activities. Thestatement quite clearly refers to 'ready mixed concrete and aggregates rather thanto cement. Similarly, Heidelberger fails to show, on the basis of the content of the Ciments Français memorandum (document 33.126/4380), that its rights of defencewere infringed. As the memorandum is undated, it is difficult to determine theperiod to which Ciments Français's remarks refer and Heidelberger has notprovided any information in that regard. Nor does the document reveal whether theexports to which it refers are exports between members of Cembureau or exportsof non-European producers. In any event, even if the exports in question wereexports between members, the Court points out that the Commission has neverclaimed that the Cembureau agreement had had the effect of eliminating all intra-Community trade in cement and any temptation to engage in inter-State trade.According to Article 1 of the contested decision, the Cembureau agreementconstituted an infringement because it had an anti-competitive object. Furthermore,the principle of non-transhipment to home markets did not prohibit 'traditional oreven structural inter-State trade (memorandum to the Chairman for the HeadDelegates meeting on 19 March 1984; contested decision, recital 19, paragraph 9;documents 33.126/11728 and 11729), but was opposed to 'random exports (noteson the Head Delegates meeting of 19 March 1984; contested decision, recital 19,paragraph 10; documents 33.126/11733 to 11737), namely uncontrolled orunregulated exports. Accordingly, the content of document 33.126/4380 is not ofsuch a nature as to shed a different light on the specific documentary evidence onwhich the Commission relied in the SO (points 9 and 61) and in the contesteddecision (recitals 18, 19 and 45) in establishing the existence of the Cembureauagreement. 2.11. Case T-43/95 Lafarge v Commission 1204. In the statement which it lodged on 28 January 1998 Lafarge emphasises that therecord of a discussion within CBR dated 3 November 1982 (document 33.126/8132)shows that, contrary to what the Commission alleges (contested decision, recital 19,paragraph 3), Mr Van Hove, the Chairman of CLC, did not orchestrate changesto the agenda of the meeting of 14 January 1983. 1205. That argument must be rejected. The document to which Lafarge refers predatesthe adoption of the agenda and the dealings to which it gave rise. The internalCBR meeting, of which the document is the record, was on 3 November 1982,whereas the draft agenda and the alterations suggested by Mr Van Hove are dated16 and 17 November 1982 (see paragraphs 798 to 800 above). Furthermore, thedocument submitted by Lafarge states: 'preparation Cembureau meeting 14January 1983: agenda will be fixed on 22 December 1982; the desirability of holdinga meeting of the DGR in order to prepare the Cembureau meeting will be assessedaccording to the agenda .... Contrary to what Lafarge suggests, the content of thedocument therefore confirms the timetable of events preceding the convening ofthe meeting of 14 January 1983, as described in the contested decision. Accordingly,any arguments which that applicant might have been able to put forward during theadministrative procedure could not have altered the outcome of that procedure. 1206. In the statement lodged on 10 February 1997 and 28 January 1998 Lafarge alsoclaims that a number of documents support its argument that the Head Delegateswere in fact concerned with dumping and imports from third countries. NoCembureau agreement was therefore concluded or confirmed at the HeadDelegates meetings. Lafarge refers to a document relating to the Head Delegatesmeeting held on 7 November 1984 (documents 33.126/5312 to 5315) and also tovarious documents which emanate mainly from German cement producers(documents 33.126/3854, 5156, 5200, 5203, 5215, 5230, 5231, 5233, 5234 to 5265,5295, 5301, 5312 and 8164). 1207. Lafarge also refers to a series of documents that allegedly support its argument thatthe lawful means of ensuring fair competition discussed by the Head Delegates infact referred to the BPS (see paragraph 852 above), which had been notified to theCommission and which concerned not just Belgian and Netherlands cementproducers but all other European producers too. It considers it unacceptable thatthe Commission refused to allow it to inspect all the documents relating to thenegotiations between it and the cement industry. It refers in that regard todocuments 33.126/1219 to 1221, 1552 to 1554, 2050, 2051, 2545 to 2553, 5038 to5051, 5105 to 5119, 7858 to 7860, 8146 to 8148, 8151, 8170, 8171, 9050 to 9053,9068 to 9073, 9078 to 9080 and 9103 to 9112. 1208. However, the documents to which Lafarge refers are not of such a nature as toshed a different light on the various items of specific documentary evidencereferred to in the SO (points 9 and 61) and in the contested decision (recitals 18,19 and 45), which establish the existence of the Cembureau agreement. At the verymost, they prove that the BPS, the problems of dumping and imports from thirdcountries were also discussed at the Head Delegates meetings, matters which theCommission has never disputed (contested decision, recital 19, paragraphs 2 to 15).Consequently, the observations which Lafarge might have been able to make couldnot have altered the outcome of the administrative procedure. 2.12. Case T-44/95 Aalborg v Commission 1209. First, Aalborg states that the documents which it was able to inspect following themeasures of 2 October 1996 and 18 and 19 June 1997 provide an alternativeexplanation for the objective of the meetings of European cement producers duringthe relevant period. It is clear from a number of documents that at those meetingsthe European cement industries did not allow themselves to be guided by aprinciple of non-transhipment to home markets but considered ways in which theycould lawfully regulate the formation of prices and prevent 'random imports anddumped imports. In its observations of 10 February 1997 Aalborg refers to the filewhich the CMF lodged with the Commission in 1973 when notifying the UnitedKingdom CPMA agreement (Case IV/27.997; see paragraphs 91 and 93 above)based on the basing point system; it was eventually decided to take no further action in that case when the agreement was terminated in 1987. Aalborg maintainsthat an opportunity to refer to that file during the administrative procedure wouldhave allowed it to show that no incriminating evidence could be inferred from thedescription of the basing point system given by Mr Van Hove at that meeting. Inits observations of 12 January 1998 Aalborg produces a series of documents(documents 33.126/1078 to 1088, 1147 to 1163, 2569 to 2578, 2591 to 2597, 5038 to5051, 9010 to 9075 and 9078 to 9082) to show that for many years the Europeancement industry, in particular the Belgian industry, maintained close contact withthe Commission concerning the introduction of a basing point system, the BPS (seeparagraph 852 above), which was to cover the markets in Belgium, the Netherlands,part of West Germany and, possibly, Northern France. Those documents wouldhave allowed Aalborg to show that what was actually discussed at the meeting heldon 14 January 1983 was whether it was possible, without infringing Communitycompetition law, to introduce on a European scale a price formation systemcomparable to the BPS notified to the Commission in 1981. Aalborg points out thatthe Commission had not yet officially responded to that notification as at 14January 1983. 1210. Aalborg also refers in its observations of 12 January 1998 to a letter sent by MrVan Hove to the members of the CLC on 18 February 1983 (documents33.126/2412 to 2415), which states expressly, under the heading 'B.ImportsExports of cement between EEC countries that 'any agreement onprices, deliveries per company etc. are prohibited and which reviews a series ofwhat Aalborg regards as legal means of cooperating to establish fair competition(legal proceedings under Article 86 of the Treaty; introducing a price formationsystem monitored by the Commission; occasional alignment of prices with those ofcompetitors, etc.), with no mention of an approach based on the principle of non-transhipment to home markets. Aalborg also puts forward a series of documents(documents 33.126/4982/54 and 66, 5295, 5296 and 6160 to 6165) to show that itwas dumped imports from Eastern Europe and Spain that preoccupied theEuropean cement industry in 1983 and 1984. It attempts, in particular, to show, inthe light of an extract from document 33.126/6162, which states that 'the rules ofthe economic game are not applied by the countries of the East and, in particular,by East Germany, that the 'rules of the game referred to in the draftintroductory statement of the Chairman for the meeting of Head Delegates on 14January 1983 (contested decision, recital 19, paragraph 5; documents 33.126/11583to 11585) actually related to dumping, not to intra-Community trade. Aalborg alsorefers to the SFIC notice of 4 January 1988 entitled 'Plan of the file Cementimports at dumped prices (document 33.126/14806) and to a letter dated 19January 1989 from Lafarge to the Directorate for External Economic Relations(documents 33.126/14799 and 14800). 1211. The Court points out, however, that for the reasons given in paragraph 1183 abovethe argument would not have been of such a nature as to alter the outcome of theadministrative procedure. It should be added, for the sake of completeness, that the fact that document 33.126/6162 states that 'the rules of the economic game are notapplied by the countries of the East, in particular by East Germany is not of sucha nature as to shed a different light on the specific documentary evidence on whichthe Commission relied in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement.It is common ground that the producers of Eastern Europe did not confinethemselves to their home markets but exported quantities of cement to theCommunity market. Moreover, document 33.126/6162 also states that the countriesof Eastern Europe 'are sometimes heavily in debt ... and are therefore obliged toexport in order to repay their foreign debt. Accordingly, the fact that the EasternEuropean producers did not apply 'the rules of the economic game is not of sucha nature as to shed a different light on the documentary evidence which shows thatthe Cembureau Head Delegates adopted and confirmed such rules. 1212. Second, in its observations of 10 February 1997 Aalborg claims that the SFICnotice of 4 January 1988 entitled 'Plan of the file Cement imports at dumpedprices (document 33.126/14806) would have been useful evidence to show thatthe reference to the need to 'establish rules of the game ... to avoid impropercompetition made by Mr Bertrán at the meeting of the Cembureau ExecutiveCommittee in Paris on 14 April 1986 and recorded in a handwritten Italcementinote (contested decision, recital 17, paragraph 9; document 33.126/3185) was to theproblems of dumped imports from markets outside the Community, not to intra-Community trade. 1213. The Court points out, however, that, for the reasons given in paragraph 1149above, that argument would not have been of such a nature as to alter the outcomeof the administrative procedure. 1214. Third, in its observations of 10 February 1997 Aalborg relies on chapters 6 and 16of the SO, relating to the German market, in which the Commission describes(point 47), and then condemns (points 82 to 84), an agreement dated 15 February1980 on the exchange of statistics and a number of alleged agreements to share theGerman market which, according to the Commission, would have been completelyineffective had they not come under the umbrella of the Cembureau principle ofnon-transhipment to home markets. Aalborg considers that those documents wouldhave allowed it to illustrate the way in which the Commission's legal assessment ofthe situation changed between the SO and the contested decision and,consequently, to show that its rights of defence were inevitably infringed. In thatregard, Aalborg points out that in the SO the Commission expressed the view thatthe German agreements of 1980 already formed part of a general principle of non-transhipment to home markets on a European scale, whereas subsequently in thecontested decision it took the view that the Cembureau agreement was concludedin 1983. 1215. That argument must be rejected. First, at the stage of the administrative procedureAalborg could not have foreseen the Commission's alleged change of assessmentin the contested decision. In any event, it should be pointed out that in both the SOand the contested decision the Commission takes the view that the Cembureauagreement entered into force with effect from 1983, even though it states that ithad evidence that the agreement not to tranship to home markets might haveexisted well before 1983 (SO, points 9 and 61; contested decision, recital 45,paragraphs 1 and 6). Consequently, Aalborg's complaint alleging a change in theCommission's legal assessment and a corresponding infringement of its rights ofdefence is in any event irrelevant. 1216. Fourth, and last, in its observations of 12 January 1998 Aalborg claims thatdocuments 33.126/1692, 1693, 2301, 2313, 2335, 2336, 2356, 3452 to 3463, 14809,14810 and 14817, and documents 33.322/1235, 2313 and 2335 show that intra-Community exports and imports took place after 14 January 1983, that being atvariance with the existence of the Cembureau agreement. 1217. The Court points out that the Commission has never claimed that the Cembureauagreement and its implementing measures had had the effect of eliminating allintra-Community trade in cement and any temptation to engage in inter-Statetrade. According to Article 1 of the contested decision, the Cembureau agreementconstituted an infringement because it had an anti-competitive object. Furthermore,the Cembureau agreement did not prohibit 'traditional or even structural inter-State trade (memorandum to the Chairman for the Head Delegates meeting of19 March 1984; contested decision, recital 19, paragraph 9; documents 33.126/11728and 11729), but was opposed to 'random exports (notes on the Head Delegatesmeeting of 19 March 1984; contested decision, recital 19, paragraph 10; documents33.126/11733 to 11737), namely uncontrolled or unregulated exports. The existenceof imports or exports in a specific case is not therefore of such a nature as to sheda different light on the specific documentary evidence of the existence of theCembureau agreement (SO, points 9 and 61; contested decision, recitals 18, 19 and45). 2.13. Case T-48/95 BDZ v Commission 1218. In its observations of 10 February 1997 BDZ claims that the documents which itwas able to inspect following the measure of 2 October 1996 would have enabledit to show that the alleged national agreements and concerted practices referred toin the national objections were unconnected with the Cembureau agreement. Itstates that the evidential value of the documents in the file concerning Greece isslight because they refer to a European agreement and concerted practice but donot give details of their subject matter. It refers in that regard to documents33.126/19875 to 19887. 1219. The Court finds, however, that if BDZ had been able to show during theadministrative procedure that there was no link between the national agreementsand concerted practices and the Cembureau agreement the outcome of thatprocedure could not have been different, because the proof of the existence of theCembureau agreement does not depend in any way on the existence of the nationalagreements and concerted practices. Inasmuch as BDZ's argument is based ondocuments 33.126/19875 to 19887, it must be rejected for the reasons set out inparagraph 1178 above. 2.14. Case T-50/95 Unicem v Commission 1220. First, in its observations of 28 November 1997 Unicem submits that documents33.126/8167, 8168 and 15494 to 15496 clearly show that at the meeting of 14January 1983, in which it did not participate, the discussions, including those underpoint 2 of the agenda 'Intra-European trade, solely concerned dumping andmeasures to counteract it. 1221. However, for the reasons set out in paragraph 1180 above, that argument wouldnot have been of such a nature as to alter the outcome of the administrativeprocedure. 1222. Second, in its observations of 28 November 1997 Unicem refers to documents33.126/299, 300, 304, 721, 2554, 6206 to 6208, 6244, 7440, 13399 to 13402, 13434 to13484, 14549, 14621, 14627, 14630, 14636, 14637, 14640, 14646, 14661 to 14663,14694, 14709 to 14711 and 16209. Those documents show that the Commission'scontention that Cembureau played a central role in the forces of competition onthe cement market was wholly irrelevant. The documents distributed by Cembureauover the period in which the alleged Cembureau principle was applicable, inparticular regarding the volume, origin, destination and prices of exports, werehistorical and globalised, wholly without commercial value, and did not enable theundertakings concerned to be identified or cross-border trade in cement to bepermanently monitored. 1223. However, the comments which Unicem could have made on the basis of thosevarious documents in order to highlight the lack of detail in the information onintra-Community exports/imports exchanged through Cembureau during the periodin question and the unsuitability of that information for permanently monitoringcross-border trade in cement would not have been of such a nature as to shed adifferent light on the body of specific documentary evidence on which theCommission relied in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement. 1224. Lastly, in its observations of 28 November 1997 Unicem submits that it is clearfrom the national files that the specific features of the various home markets, combined with the special agreements and independent bilateral contacts whichexisted on those markets, in themselves explain the lack of intra-Community tradein cement. Those features would have made imports into those markets difficult,even impossible, and would have had the effect of eliminating any incentive toexport. They are thus at variance with the Commission's theory based on theexistence of the Cembureau agreement. As regards the French market, Unicemrefers more specifically to documents 33.126/1394, 1395, 5648, 5674, 5688, 5695,5696, 5747, 5748, 5751, 14806, 14807, 14809 to 14826, 14938 to 14976, 15025, 15026and 15040 and to points 78 and 81 of the SO. As regards the United Kingdommarket, it relies on points 74 and 77 of the SO and on documents 33.126/17641 to17654. As regards the Spanish and Portuguese markets, it relies on point 89 of theSO. Lastly, in the chapters of the SO dealing with the German market, it refersmore specifically to points 47 and 84, and, in the chapters dealing with the Greekmarket, it refers to point 86. 1225. However, for the reasons set out in paragraph 1191 above, that argument wouldnot have been of such a nature as to alter the outcome of the administrativeprocedure. 2.15. Case T-51/95 Buzzi v Commission 1226. In its statement of 27 November 1997 Buzzi contends that certain documents showthat the conditions and costs of transport played a crucial role for the cementmarket. The importance of transport costs for an assessment of the profitability ofcement exports is confirmed by a SNFCC document of 2 December 1986(documents 33.126/6048 to 6050). That document would therefore have been usefulto show that the relevant geographic market could not have had a Communitydimension. 1227. The Court points out that during the administrative procedure Buzzi had alreadystressed the importance of transport costs for exports (Buzzi's reply to the SO,paragraph 4.3.). The Commission observed, however, in the contested decision(recital 20, paragraph 7) that Buzzi stated that despite that obstacle it had'[exported] worthwhile quantities (interessanti quantità) of cement to the Southof France. In those circumstances, the fact that Buzzi did not have access, duringthe administrative procedure, to the SNFCC document of 2 December 1986 did notprejudice its rights of defence. Moreover, the Court finds that the document inquestion confirms the definition of the market adopted in the contested decision(recital 11, paragraph 7). The document states that the considerable imports in theAntwerp-Rotterdam-Amsterdam zone 'would not leave France unaffected, becauseof their disturbing effect on the Benelux market and that of West Germany, whichmight spread. It follows that the document would not have been of any use forBuzzi's defence if it had been accessible to Buzzi during the administrativeprocedure. 2.16. Case T-57/95 Heracles v Commission 1228. First, in its observations of 10 January 1997 Heracles submits that it is clear froma number of documents in the national files that the alleged agreement to preventimports into the markets in fact stemmed from a series of national agreements inforce in various Member States, other than Greece, and not from a Cembureauagreement. Heracles asserts that the documents on which the Commission reliedin establishing the existence of the Cembureau agreement appear, when consideredin the context of the national files, to point to the existence of various nationalagreements (United Kingdom, France and Italy), regional agreements (SouthernGermany), bilateral agreements (France/Germany, France/Italy, Spain/Portugal)and multi-lateral agreements (Belgium/Netherlands/Germany), which were allconcluded by the parties concerned in order to strengthen their respective nationalarrangements rather than to implement the alleged Cembureau agreement, andwhich in themselves sufficed to isolate the national markets by making importsdifficult, if not impossible. The national files reveal that in many cases the nationalpractices that were designed to prevent imports predated the alleged Cembureauagreement; that those practices were implemented entirely independently of thatalleged agreement and without any reference to it; that they were considerablymore complex than that agreement, inasmuch as they were derived from far closercooperation between producers, stemming from the structure of theirshareholdings; and that the nature of that cooperation to prevent imports variedfrom one State to another, which shows that it could not have derived from analleged single Cembureau principle. As regards the United Kingdom market,Heracles refers to point 74 of the SO and to documents 33.126/17017 to 17051,which deal with the CPMA (see paragraph 91 above), adopted in 1934 by the CMFand notified to the Commission in 1973. It also states that, if it had had access tothe documents relating to the national agreements and concerted practices, inparticular those concerning the United Kingdom agreement and concerted practice,it could have shown that the statement made on 25 June 1986 by MrKalogeropoulos at the meeting of its board, to which the Commission refers inrecital 18, paragraph 5 of the contested decision (documents 33.126/19875 to19877), did not relate to the Cembureau agreement, but to the various national,bilateral and multilateral arrangements concluded at that time between theEuropean cement producers in order to hinder imports. In the file relating toGermany, the applicant refers more specifically to point 84, and points 48 and 49of the SO, which show the structural relationships existing between the principalGerman, French, Swiss, Belgian, Dutch and Luxembourg producers; thoserelationships could explain, better than the alleged Cembureau agreement, thebilateral agreements made between those various markets in order to restrictimports. Heracles also refers to the chapters of the SO dealing with the regionalagreements and concerted practices in Germany, in particular the agreementrelating to the award of quotas in Southern Germany. As regards the Frenchmarket, it refers to points 42 and 44 of the SO, which attest to the existence of links, at that time, between the main national producers, and also to points 78 and79 of the SO, where the Commission takes the view that the object and effect ofthe various forms of cooperation in existence on that market was to distortcompetition to an appreciable extent. In the file concerning Italy it refers to points32 to 34 of the SO, which summarise the market sharing and cooperationagreements in force on the market at that time. In the file relating to Spain, itrefers to point 55 of the SO, which illustrates the bilateral relations between theSpanish and Portuguese producers. 1229. The Court finds that the comments and alternative explanations, based on theexistence on a number of markets of national, bilateral or multilateral agreementsand on the structure of the shareholding of European producers of cement, whichHeracles could have provided in regard to the low volume of intra-Communityimports during the period in question would not have been of such a nature as toshed a different light on the specific documentary evidence on which theCommission relied in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) in order to establish the existence of the Cembureauagreement (see paragraphs 263 and 264 above). 1230. For the reasons set out in paragraph 1137 above, the argument that the nationalagreements and concerted practices predated the Cembureau agreement and thatthey were implemented entirely independently of that agreement would not havebeen of such a nature as to alter the outcome of the administrative procedure. 1231. Second, in its observations of 24 November 1997 Heracles submits that it is clearfrom several documents that no Cembureau agreement was concluded at themeeting of 14 January 1983. It claims that documents 33.126/5295, 5296, 15443 to15518 and 16410 to 16416 show that the main concern of the European cementindustry at that time was imports from non-member countries of the Community,not intra-Community trade. 1232. For the reasons set out in paragraph 1180 above, that argument would not havebeen of such a nature as to alter the outcome of the administrative procedure. 1233. Finally, in its observations of 24 November 1997 Heracles refers to severaldocuments which, it claims, show that, contrary to the Commission's allegations, thealleged Cembureau agreement was never confirmed at the Head Delegatesmeetings of 19 March and 7 November 1984. It thus cites the memorandum of 12November 1984 from Mr Van Hove to the board members of FIC (documents33.126/2436 to 2447), which clearly states, in regard to the meeting of 7 November1984, that 'no internal EEC problem was dealt with or raised (extract fromdocument 33.126/2436). The fact that the Head Delegates meeting dealt only withsubjects of legitimate concern to the members of Cembureau is also clear fromdocuments 33.322/119 to 123 relating to the Cembureau General Assembly in June 1985. They show that intra-Community trade was not even discussed at that generalassembly. 1234. The comments which Heracles could have made on the basis of the variousdocuments would clearly not have been of such a nature as to shed a different lighton the memorandum to the Chairman for the Head Delegates meeting on 19March 1984 (SO, points 9 and 61; contested decision, recital 19, paragraph 9;documents 33.126/11728 and 11729) and on the notes on that meeting, dated 2April 1984 (SO, points 9 and 61; contested decision, recital 19, paragraph 10;documents 33.126/11733 to 11737), which clearly show that the Cembureauagreement was confirmed at that meeting (see paragraphs 1008 to 1010 above). 1235. As to the meeting of 7 November 1984, the Commission regarded the discussionsheld at that meeting as proof that the Cembureau agreement had been confirmedonce again, in that the channelling of Greek and Spanish surplus production outsidethe Community had been supported by Cembureau and its members in order toavoid destabilisation of the European markets (SO, paragraphs 9 and 61; contesteddecision, recitals 19, paragraph 14, and 45, paragraph 2). Furthermore, at thehearing on 3 March 1993 the FIC put forward documents 33.126/2436 to 2447 andreferred in particular to the explicit statement that no internal EEC problem hadbeen dealt with at the meeting of 7 November 1984. However, for the reasonsgiven in recital 44, paragraph 3, of the contested decision, the Commission took theview that those documents and that statement were not of such a nature as to sheda different light on the content of the discussions at that meeting. Consequently, thecomments which Heracles could have made during the administrative procedurein order to argue that intra-Community trade in cement was not dealt with at themeeting of 7 November 1984 could not have altered the outcome of the procedureon that point. 1236. Lastly, the Commission has never alleged that intra-Community trade was discussedat the Cembureau General Assembly in June 1985. 1237. Consequently, the observations which Heracles could have made if it had hadaccess to the documents cited in paragraph 1233 above would not have altered theoutcome of the administrative procedure. 2.17. Cases T-53/95 Rugby v Commission, T-56/95 Castle v Commission, T-70/95Aker v Commission and T-71/95 EUROC v Commission 1238. First, in their statements of 10 February 1997 Castle, Aker and EUROC assert thatthe national chapters of the SO show that the low level of intra-Community tradein cement was explained by the cost of transport and by factors such as the degreeof concentration on national and regional markets, vertical integration, cross-supplyarrangements, minority shareholding links and other forms of cooperation. The low level of trade is also explained by the existence of national agreements andconcerted practices. 1239. However, for the reasons set out in paragraph 1154 above, that argument wouldnot have been of such a nature as to alter the outcome of the administrativeprocedure. 1240. Second, in their statements lodged following the measures of 18 and 19 June 1997,Rugby, Castle, Aker and EUROC contend that documents to which they did nothave access during the administrative procedure show that the discussions whichtook place at the meeting of 14 January 1983 did not concern the adoption of arule of non-transhipment to home markets but rather the establishment of a basingpoint system for cement and problems of dumping, in particular by easternEuropean countries. In that regard the applicants claim that an extract from theminutes of a CBR board meeting at the end of 1982 (document 33.126/8132) showthat the Belgo-Netherlands basing point system was to be analysed at the meetingon 14 January 1983. Furthermore, they refer to a note by Mr Van Hove concerninghis meeting on 16 February 1978 with an official of the Commission regardingpricing systems applicable in Belgium and the Netherlands (documents 33.126/9049to 9053). It is apparent from the latter document that some cement producers werediscussing with the Commission a basing point system which favoured faircompetition. That document therefore undermines the Commission's contentionthat the references to 'fair competition in some of the documents referred to inpoint 7 of the SO proves the unlawful object of Cembureau's activities. Rugby,Castle, Aker and EUROC also refer to a study on the application to the cementsector of a basing point system, sent to the Commission on 21 December 1978 byrepresentatives of the German, Belgian and Netherlands cement producers(documents 33.126/7861 to 7875). That study explains why the assumptions andconclusions of the 1976 Phlips study were not applicable to the cement industry. Inthe contested decision the Commission relied on that study in submitting that abasing point system was anti-competitive (contested decision, recital 17, paragraph4, footnote 53). Furthermore, the arguments used by Mr Van Hove in the courseof a talk at the Cembureau meeting of 14 January 1983 concerning the basing pointsystem (contested decision, recital 17, paragraph 3) are in conformity with theconclusions reached in the study sent to the Commission on 21 December 1978. Insupport of their argument that at the meeting of 14 January 1983 the discussionsconcerned a basing point system for the cement sector and the problem of dumpedimports, the applicants also refer to the following documents concerning thenotification to the Commission of the Belgo-Netherlands basing point system:extracts from the minutes of certain meetings of the board of CBR from Januaryto March 1981 (documents 33.126/8098 to 8104), a letter from Mr Van Hove of 23December 1981 to the CLC members in Cembureau (documents 33.126/3242 and3243) showing that the other members of Cembureau were closely following theprogress of the negotiations between the Commission and the cement producersconcerned by the basing point system which had been notified; the draft minutes of the CBR board meeting of 15 December 1983 (documents 33.126/8170 to 8173);an extract from the minutes of the meeting of the management board of CBR on20 December 1983 for the purpose of preparing a reply to the Commission's letterof August 1983 in which the Commission had stated that it was suspending itsformal assessment of the notification of the basing point system (documents33.126/8146 to 8148) and a memorandum entitled 'History of relations between theCommission and the Belgian cement industry (documents 33.126/9078 to 9080).The latter memorandum shows that the Commission's first official reaction to thenotification of the basing point system was made on 1 August 1983, that is to sayafter the meeting of 14 January 1983. Rugby submits that this information wouldhave enabled it to understand why the Commission could not fairly object todiscussions within Cembureau regarding a basing point system for Europe. It alsorefers to a CBR note of 12 March 1986 concerning the notification to theCommission of the basing point system (document 33.126/9114). Castle, Aker andEUROC refer to a letter of 15 June 1978 from the representatives of German,Belgian and Netherlands cement producers addressed to an official of theCommission and concerning price formation systems for cement (documents33.126/7858 to 7860). Lastly, Rugby submits that it is also clear from the abovedocuments that the basing point system was discussed at the meeting of theCembureau Executive Committee on 25 March 1983. 1241. The Court finds, however, that the documents on which Rugby, Castle, Aker andEUROC rely are not of such a nature as to shed a different light on the specificdocumentary evidence adopted in the SO (points 9 and 61) and in the contesteddecision (recitals 18, 19 and 45) to establish the existence of the Cembureauagreement. At the very most, those documents tend to show that problems ofdumping and the BPS (see paragraph 852 above) were also discussed at themeeting of 14 January 1983. It should be added that the Commission has neverdisputed that at that meeting discussions also took place on price formationsystems, in particular on the BPS, and on anti-dumping measures (contesteddecision, recital 19, paragraphs 2 to 15), or that there had been contacts betweenit and certain European industries in regard to the basing point system (contesteddecision, recital 17, paragraph 4). Furthermore, the fact that in the note concerningMr Van Hove's meeting with a Commission official on 16 February 1978(documents 33.126/9049 to 9053) Mr Van Hove considered that the basing pointsystem could promote fair competition would not have been of use to the defenceof the applicants concerned, because that note did not disclose what had beendiscussed at the meeting of 14 January 1983, and the passages of the SO (points7, 8 and 60) and of the contested decision (recital 17) relating to fair competitiondid not raise any objection that was found to be an infringement in the contesteddecision. For the same reasons, the rights of defence of the applicants concernedwere not infringed by the fact that access was not given during the administrativeprocedure to the study on the application to the cement sector of a basing pointsystem, sent to the Commission on 21 December 1978. Furthermore, the fact thatthe Commission's initial reaction to the notification of the Belgo-Netherlands system was given only on 1 August 1983 has no bearing on the discussions whichtook place at the meeting of 14 January 1983. 1242. As to Rugby's argument that it is apparent from the documents referred to inparagraph 1240 above that discussions took place on the basing point system at themeeting of the Executive Committee of Cembureau on 25 March 1983, the Courtfinds, first, that the Commission does not dispute that at that meeting there werediscussions, inter alia, concerning a basing point system (contested decision, recital17, paragraphs 2 and 4) and, second, that the Commission has never alleged thatthe Cembureau agreement was concluded or confirmed in the course of thatmeeting. As presented in the SO and the contested decision, the meeting of theCembureau Executive Committee on 25 March 1983 was linked to the discussionsof 'fair or healthy or correct competition. The Court points out that the passagesof the SO (points 7, 8 and 60) and of the contested decision (recital 17) relating tofair competition did not ultimately give rise to a finding of infringement in thecontested decision. Consequently, even if Rugby had been able to show during theadministrative procedure that it was apparent from the documents on which itrelies that at the meeting of the Executive Committee of Cembureau of 25 March1983 discussions took place on a basing point system, that could not have alteredthe outcome of that procedure. 2.18. Case T-60/95 Irish Cement v Commission 1243. First, in its observations of 10 February 1997 Irish Cement submits that in thevarious national chapters of the SO the Commission itself acknowledges that thenational or regional cartels which existed in a number of Member States sufficedto isolate those Member States from intra-Community trade because they madeimports from other Community countries difficult or even impossible and theyeliminated any incentive to export. Irish Cement therefore considers that the accessto the national chapters of the SO during the administrative procedure would haveenabled it to seek to show that, contrary to what the Commission alleges, the trueexplanation for the low volume of inter-State trade in cement was not theconclusion of an alleged Cembureau agreement but the existence of a series ofindependent national cartels. It refers more specifically to points 47 to 49 and 82to 84 of the SO as regards the German market, to paragraphs 44 to 46 and 78 to81 of the SO as regards the French market, paragraphs 38 to 40 and 73 to 77 ofthe SO as regards the United Kingdom market, paragraph 72 of the SO as regardsthe Italian market, paragraph 89 of the SO as regards the Spanish market, andparagraph 86 of the SO as regards the Greek market. 1244. The Court points out that in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) the Commission relied on specific documentary evidencein establishing the Cembureau agreement. Any alternative explanations for the lowlevel of trade between Cembureau member countries which Irish Cement could have put forward if it had had access to the entire SO during the administrativeprocedure would not have been of such a nature as to shed a different light on thatdocumentary evidence (see paragraphs 263 and 264 above). Furthermore, evensupposing that the documents relied on would have enabled the applicant to provethat there was no link between the national agreements and concerted practicesand the Cembureau agreement, the inaccessibility of the documents in question didnot impair its defence, because, for the reasons set out in paragraph 1137 above,the national objections are not upheld in the contested decision. 1245. Second, in its observations of 5 January 1998 Irish Cement submits that thelawfulness of the discussions which took place at the Head Delegates meeting of14 January 1983 and those at the Head Delegates meetings of 19 March and 7November 1984 is also confirmed by a series of minutes of meetings of theCembureau Executive Committee which took place between March 1983 andNovember 1984 (documents 33.322/1423 to 1444 and documents 33.126/7882 to7886). It is clearly apparent from those minutes that the discussions in questionconcerned dumped imports from East Germany and Spain. Those documents wouldalso have been useful to Irish Cement in order to show that the statements madeby some of the Head Delegates at the meeting of 19 March 1984 according towhich 'the hot spots [were] exports from Spain to Ireland and the UnitedKingdom and the 'future of Cembureau would be in doubt if the problem oftrade between member countries was not dealt with and settled within theAssociation (SO, point 9(b)), had in fact related to the concern of Cembureau'smembers regarding a major dispute (anti-dumping complaint) between some ofthem, the attempts to find an amicable settlement and the danger of a long-termsplit, if the dumping could not be prevented. Irish Cement adds that all thosedocuments would also have been useful to it in order to show that the sole objectof the exchanges of information on prices which took place at the Head Delegatesmeetings (contested decision, recital 16(a)) was to evaluate the dangers of dumpingand to include the information in the anti-dumping complaints filed with theCommission. 1246. The Court finds, however, that the documents relied upon are not of such a natureas to shed a different light on the various items of specific documentary evidencerelied upon in the SO (points 9 and 61) and in the contested decision (recitals 18,19 and 45) in establishing the existence of the Cembureau agreement. At the verymost, those documents prove that the problems posed by the dumped imports werealso discussed at the meetings in question, a point which the Commission has neverdisputed (see paragraph 1180 above). Consequently, the observations which theapplicant could have made if it had had access to those documents could not havealtered the outcome of the administrative procedure. As regards the meeting of 19March 1984, it should be added that the documents adduced by Irish Cement couldnot have shed a different light on the fact that amongst the 'hot spots referred toin the memorandum to the Chairman for that meeting were 'exports fromGermany to the United Kingdom and Ireland and 'exports from France to Germany (SO, point 9(b); contested decision, recital 19, paragraph 9; documents33.126/11728 and 11729), namely concerns directly touching upon the intra-Community transfers of cement which the Cembureau agreement set out toregulate. 1247. As to the objective of the exchanges of information on prices at the HeadDelegates meetings, the comments which Irish Cement could have submitted on thebasis of the documents in question could not have shed a different light on thespecific documentary evidence which shows that exchanges of information of thattype took place at those meetings in order to 'assess the risks entailed by anincrease in certain imports coupled with a sharp reduction in certain prices (draftintroductory statement by the Chairman for the meeting of Head Delegates on 14January 1983 (contested decision, recital 19, paragraph 5; documents 33.126/11583to 11585)), to '[highlight] potential causes of conflict (notes of 2 April 1984relating to the meeting of Head Delegates of 19 March 1984 (contested decision,recital 19, paragraph 10; documents 33.126/11733 to 11737)) and to 'reduce thegap between the prices in order to eliminate the 'temptation to export(memorandum to the Chairman for the meeting of Head Delegates of 19 March1984 (contested decision, recital 19, paragraph 9; documents 33.126/11728 and11729)). 1248. Third, in its observations of 10 February 1997 Irish Cement relies on the minutesof the CMF meeting of 16 October 1985 (documents 33.126/17099 to 17102), fromwhich it is apparent that two United Kingdom producers, RTZ and Rugby, fearedthat a change in the existing agreements on the United Kingdom market wouldencourage imports of cement on that market. It considers that to be evidence thatthere was no international agreement to restrict imports. 1249. The Court points out, however, that the comments which Irish Cement could havemade on the basis of that document, if it had been accessible to it during theadministrative procedure, could not have been of such a nature as to shed adifferent light on the specific documentary evidence on which the Commissionrelied in establishing the existence of the Cembureau agreement (SO, points 9 and61; contested decision, recitals 18, 19 and 45). The Commission has never allegedthat the effect of the Cembureau agreement was to eliminate all intra-Communitytrade in cement and any temptation to engage in inter-State trade. According toArticle 1 of the contested decision, the Cembureau agreement constituted aninfringement because it had an anti-competitive object. 1250. Fourth, in its observations of 5 January 1998 Irish Cement relies on a jointstatement of 3 October 1986 by Mr Cannellopoulos, for Titan, and MrKalogeropoulos, for Heracles, on the subject of 'Export of Greek cement toEngland (documents 33.126/11116 and 11117), which stated that 'threats havebeen heard and efforts launched with a view to form a common front with otherEuropean producers in order to block the Greek export drive wherever possible, even in third countries and to undermine the Greek cement industry and disruptits own domestic market by taking over one of the Greek companies. Accordingto Irish Cement, that statement clearly implies that at that time there was noCembureau agreement. If such an agreement had existed, the 'common front withother European producers referred to in that joint statement would already havebeen a reality and there would have been no need for efforts to form one. IrishCement adds that that statement is manifestly at variance with the allegedstatement made by Mr Kalogeropoulos at the meeting of 25 June 1986 of theBoard of Heracles (contested decision, recital 18, paragraph 5; documents33.126/19875 to 19877). 1251. The Court finds, however, that the extract from the document to which theapplicant refers is not of such a nature as to shed a different light on the specificdocumentary evidence on which the Commission relied in establishing the existenceof the Cembureau agreement (SO, points 9 and 61; contested decision, recitals 18,19 and 45). The organisation of a collective defence against the specific threatwhich Greek imports constituted for west European markets from 1986 onwardsin no way excludes the pre-existence of a general agreement on non-transhipmentto home markets on a European scale (see paragraph 913 above). 2.19. Cases T-61/95 Cimpor v Commission, T-62/95 SECIL v Commission andT-63/95 ATIC v Commission 1252. First, in their statements lodged on 21 January and 7 February 1998 respectively,Cimpor and ATIC contend that certain documents show that in 1983 the mainconcern of the European cement industry was dumped exports from easternEurope to western Europe. ATIC relies in that regard on the Vicat notes of 21 and22 December 1987 (documents 33.126/6160 to 6175) and Cimpor refers to the'1988 Management Report of Ciments d'Obourg (document 33.126/186). Theyclaim that those documents would have enabled them to refute the Commission'scontention that the Cembureau agreement was concluded at the Head Delegatesmeeting of 14 January 1983. 1253. The Court finds, however, that the two documents referred to are unrelated to theHead Delegates meeting of 14 January 1983 and do not therefore disclose whatwas discussed at that meeting. Even assuming that they relate to the meeting inquestion, they are not of such a nature as to shed a different light on specificdocumentary evidence on which the Commission relied in establishing that,alongside their discussions on dumping, the Head Delegates concluded, at theirmeeting of 14 January 1983, an agreement not to tranship to home markets and toregulate sales from one country to another, an agreement which was confirmed atthe Head Delegates meetings of 19 March and 7 November 1984 (SO, points 9 and61; contested decision, recitals 18, 19 and 45). 1254. Second, in their statements of 21 January 1998 Cimpor and SECIL refer to internaldocuments of FIC relating to meetings of the Executive Committee and of theCembureau Head Delegates on 7 and 8 November 1984 (documents 33.126/862and 863) which reveal not only the concerns of the representatives of the Europeanindustry to which imports of cement from eastern European countries gave rise, butabove all the fact that Cembureau was not involved in questions of competitionbetween its members. In that regard, it draws attention to the footnote in thedocument, which states that no internal Community problem was dealt with orraised at those meetings. 1255. The Court points out that the proof of the Cembureau agreement is in no waybased on the discussions which took place at the Cembureau Executive Committeemeeting on 8 November 1984. As to the meeting of Head Delegates of 7November 1984, document 33.126/862 indicates that 'no internal EEC problem wasdealt with or raised. It is the same document as document 33.126/2436 (seeparagraph 1233 above). The argument which Cimpor and SECIL base on thatstatement would not have been of such a nature as to alter the outcome of theadministrative procedure. Document 33.126/862 is not of such a nature as to sheda different light on the documents referred to in the SO (points 9 and 61) and inthe contested decision (recitals 18, 19 and 45), which show that the Cembureauagreement was concluded at the meeting of Head Delegates of 14 January 1983and confirmed at the meetings of 19 March and 7 November 1984 (see paragraphs979 to 985, 1008 to 1010, 1030 to 1037 and 1235). 2.20. Case T-65/95 Italcementi v Commission 1256. First, in its observations of 10 February 1997 Italcementi states that the documentsto which it was able to gain access following the measure of 2 October 1996 showthat the economic context of the alleged European agreements and concertedpractices was significantly more complex than described by the Commission in theinternational part of the SO and then in the contested decision and that the limitedvolume of cross-border trade in cement in the Community was easily explained bya number of characteristics of the market, such as its structural overcapacity (SO,points 37, 42, 47, 54 and 56 as regards, respectively, the United Kingdom, French,German, Spanish and Portuguese markets) and the cross-shareholding betweencompanies in the various Member States (SO, points 42, 54, 56 and 82 as regards,respectively, the French, Spanish, Portuguese and German markets). It isunnecessary to have recourse to a theory based on the existence of an allegedprinciple not to tranship to home markets. 1257. The Court points out that in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) the Commission established the existence of the Cembureauagreement on the basis of specific documentary evidence. The alternativeexplanations, based on the economic background, which the applicant could have supplied for the low volume of intra-Community trade in cement would not havebeen of such a nature as to shed a different light on that specific documentaryevidence (see paragraphs 263 and 264 above). On the contrary, explanations of'natural barriers to inter-State trade in cement which the applicant could have putforward if it had had access to the entire SO during the administrative procedurewould have been of such a nature as to underline the gravity of the infringementcommitted, because by concluding the Cembureau agreement the Head Delegatesattempted to eliminate the little actual competition which remained on the market(see paragraph 1088 above). 1258. Second, in its observations of 10 February 1997 Italcementi submits that thedocuments in the national files bring into proportion the central role attributed bythe Commission to Cembureau in affecting competition in Europe over the periodin question. It is apparent from those documents that the various national andregional cross-border agreements and concerted practices which were suspected bythe Commission, in the SO, to exist on a number of markets (United Kingdom,French, German, Greek, Spanish and Portuguese markets) were whollyindependent of the forum and activities of Cembureau. The SO states, moreover,that those various national or regional agreements and concerted practices sufficedin themselves to eliminate or limit the economic interpenetration desired by theTreaty and to hinder the natural flows of goods between Member States; they didnot need to be brought under a principle of non-transhipment to home markets ona European scale (SO, points 77, 81, 84, 86, 89 and 91 as regards, respectively, theUnited Kingdom, French, German, Greek, Spanish and Portuguese markets). Froma logical point of view, it is therefore unthinkable that the European cementproducers would have felt it necessary to weave the backdrop of a pan-Europeanagreement and restricted practice designed to restrict competition on a marketwhich was already structurally weakened by a mosaic of alleged national andregional agreements, some of which had been concluded well before 1983(documents 33.126/17863 and 17864 and points 46 and 82 of the SO, regarding theFrench and German markets respectively), the date from which the Commissionalleges that it has definite evidence of the existence of the Cembureau agreement.The German file is particularly revealing of the illogical and arbitrary nature of thereasoning adopted by the Commission in reaching the view that Cembureau wasthe 'compulsory crossroad for various agreements and concerted practices existingat a local level or in the border regions of the Community. Italcementi observesthat the Commission, after having explained why it considered that the allegedexchange of information between German producers through the BDZ, andbetween the BDZ and the SFIC, and the alleged market-sharing cartels on thesouthern German market were, although all of strictly national scope, in themselvesof such a nature as to influence intra-Community trade, took the view that thedecision of the German producers not to export was due to their concern not toinfringe the Cembureau agreement. In so doing, the Commission had not taken intoaccount the fact that the alleged German agreements went back to 1956, that is tosay, well before the alleged birth of the Cembureau principle (SO, points 82 and 84). Above all, it reached its analysis when there was nothing in the description ofthe facts (SO, points 47 to 49) to link such local and regional agreements to aCembureau agreement.                                                                     1259. In its observations of 26 November 1997 Italcementi also refers to a series ofdocuments relating to the Belgian market (documents 33.126/851, 853 to 856, 874,1135 to 1138, 1204 to 1206, 1543 to 1547, 1804 and 1805, 1823, 1824, 2661 to 2664,2691, 2692, 7784, 8055, 8154, 8155, 8207 to 8209, 8557, 8562, 9039, 9751, 10052,10330, 10351, 10352, 10439, 10440, 18056 to 18061, 18067, 18081, 18082, 18100,18101 and 18110 to 18113) which, it claims, show that on that market too therewere local agreements and concerted practices concerning market shares, prices,exports to other Member States of the Community or to non-member countries,the supply of clinker, upstream markets (exploitation of limestone deposits),downstream markets (inert materials, concrete), the supply of cement to concreteplants and transport. Those agreements and concerted practices were whollyindependent of Cembureau, its activities and the alleged principle which it hadcreated; they would in themselves have been of such a nature to eliminate anycompetition. The note of 24 January 1989 on the contacts between Cimpor, Secil,Asland and Ready-Mix (document 33.322/178) gives information concerning thelocal agreements and concerted practices between the two Portuguese producers,which, because they extended to the downstream market in concrete, would havereinforced the partitioning of that market against foreign competition. 1260. The Court points out that in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) the Commission established the existence of the Cembureauagreement on the basis of specific documentary evidence. Even assuming that thedocuments to which Italcementi refers would have enabled it to show that therewas no link between the national agreements and concerted practices and theCembureau agreement, the inaccessibility of the documents in question could nothave impaired its defence, because the national objections are not the subject ofthe contested decision and the proof of the existence of the Cembureau agreementin no way depends upon the existence of the national agreements and concertedpractices. Furthermore, even the comments which Italcementi might have been ableto make on the basis of the documents which allegedly show that the nationalagreements and concerted practices reduced trade between Member States couldnot have shed a different light on the specific documentary evidence used by theCommission in the SO and in the contested decision in establishing the existenceof the Cembureau agreement (see paragraphs 263 and 264 above). On thecontrary, those explanations would have been of such a nature as to underline thegravity of the infringement committed, because by concluding the Cembureauagreement the Head Delegates attempted to eliminate what little actualcompetition remained on the market (see paragraph 1088 above). 1261. Third, in its observations of 10 February 1997 Italcementi submits that amongst thedocuments which it was able to inspect there is no reference to an alleged 'macro-concertation on a European scale. On the contrary, the only references toCembureau in those documents (documents 33.126/14855, 14858, 14859, 14861,14870, 14871, 14889 and 14893) bring out its exclusive role as a forum fordiscussions of a strictly technical and economic, but not commercial, nature. 1262. The Court points out, however, that the comments which Italcementi could havemade on the basis of the various documents in order to bring out such a role byCembureau would not have been of such a nature as to shed a different light onthe body of specific documentary evidence on which the Commission relied in theSO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) inestablishing the existence of the Cembureau agreement. 1263. Fourth, in its observations of 10 February 1997 Italcementi alleges that the extractfrom the minutes of the meeting of 23 July 1986 of the Board of Heracles(documents 33.126/19879 and 19880) would have enabled it to shed a different lighton the statement by Mr Kalogeropoulos at the Heracles' board meeting on 25 June1986, on which the Commission relied in proving the existence of the Cembureauagreement (SO, point 9; contested decision, recital 18, paragraph 5; documents33.126/19875 to 19877). The document of 23 July 1986 contains, alongside themention of the United Kingdom cartel and the European agreement and restrictedpractices to which the statement of 25 June 1986 already referred, an explicitreference to Cembureau but does not establish a link between the agreements andconcerted practices and Cembureau. Italcementi claims that in his statement MrKalogeropoulos merely mentioned 'the agreement between all European cementproducers without referring to the 'Cembureau agreement or principle. Thatclearly shows that the agreement referred to in the minutes had no link toCembureau and that the author of the statement, the Chairman of Heracles,probably intended to refer, in rather condensed terms, to all the local and regionalagreements and concerted practices existing on the various national markets of theCommunity. 1264. The Court points out, however, that the fact that the minutes of the Heracles'board meeting of 23 July 1986 (documents 33.126/19879 and 19880) do notestablish an explicit link between Cembureau and the European agreements andconcerted practices is not of such a nature as to shed a different light on thespecific documentary evidence, in particular the internal memoranda of Blue Circle(contested decision, recital 18, paragraphs 2 and 3; documents 33.126/11332 to11334 and 11335 to 11337) and the documents relating to the Cembureau HeadDelegates meetings referred to in recital 19 of the contested decision, whichunambiguously establish a link between the infringement referred to in Article 1of the contested decision and Cembureau. 1265. Fifth, in its observations of 10 February 1997 Italcementi alleges that a number ofdocuments clearly show that in their daily commercial relations the Europeancement producers operated in total ignorance of the existence of an alleged overriding principle that there should be no transhipment to home markets.Furthermore, various documents show the existence of intra-Community exports orthe desire to make such exports, which is at variance with an alleged Cembureauagreement. Italcementi refers to several Spanish documents (documents 33.322/406to 408, 1607, 1608 and 2898 to 2901) and Portuguese documents (documents33.322/155 to 157, 470 to 481, 483, 484, 575, 1021 and 1022). By referring to theefforts underway to 'promote awareness both international and national as to theneed to stimulate solidarity between producers, which is the only serious  althoughdifficult  way of neutralising the consequences associated with imports, theminutes of the Asland board meeting of 24 September 1986 (documents33.322/1607 and 1608), proves that there was no such international awareness atthat time and, accordingly, that the actual effects of the alleged Cembureauagreement on the functioning of the national cement industries had passed totallyunnoticed. As regards documents 33.322/470 to 481, 483 and 484, they show thatapart from the alleged national and Spanish-Portuguese cartels, the Portugueseproducers remained free to export to other Cembureau member countries.Italcimenti adds that it has found several documents (documents 33.126/14956 to14976 (internal documents of SFIC summarising cement imports into Francebetween 1984 and 1988), 13487, 5680 and 5681 (minutes of meetings of the salesdirectors of the French company Norcim)) which show that, having regard to theevolution in cross-border trade in cement during the period in question, even if theCembureau agreement had existed from 1983 onwards (quod non) it was evidentlynot applied in practice. In its observations of 26 November 1997 Italcementi refersto another series of documents which provide further support for its contention onthat point. Several documents (documents 33.126/732 to 735, 1963, 1991, 2058 and10193 to 10195) thus attest the concerns of the Belgian industry that an excessiveincrease in their domestic prices might have dire effects on imports, in particularthose from Germany, which shows that such imports did not seem to be prohibitedby an alleged principle that there should be no transhipment to home markets. Aseries of documents relating to exports from Germany and France to Belgium andto exports from Belgium to the United Kingdom (documents 33.126/375, 885, 886,1404 to 1406, 1425, 6916, 6947, 6954, 7552, 7558, 7760, 7761, 8110, 8112 to 8118,8131 to 8132, 8382, 8519, 8540, 10193 to 10195 and 18099 bis) prove that thealleged Cembureau principle had no practical effect and show that the undertakingsthreatened, or feeling threatened, by imports defended themselves in particular bygranting rebates to their customers, organising retaliatory measures on the marketsin which those imports originated, envisaging or making alliances, acquisitions orshareholdings in various countries. Finally, many other documents (documents33.126/3973, 3974, 10837 to 10839 and 10857 to 10872) support its contention thatthe obstacles to export were due to entirely commercial reasons. On the otherhand, where such exports were possible, they took place regardless of an allegedagreement on non-transhipment to home markets. Italcementi concludes that allthe documents referred to prove that the international trade flows in cementcorresponded fully to the logic of the market (structure of the national markets,differences between price levels, deficiency of production capacity, natural and technical barriers to trade etc.) and not to alleged principles designed to limit theirvolume. 1266. The Court points out that the Commission has never claimed that the Cembureauagreement and the implementing measures had had the effect of eliminating allintra-Community trade in cement and any temptation to engage in inter-Statetrade. According to Article 1 of the contested decision, the Cembureau agreementconstituted an infringement because it had an anti-competitive object. Furthermore,the Cembureau agreement did not prohibit 'traditional or even structural inter-State trade (memorandum to the Chairman for the Head Delegates meeting of19 March 1984; contested decision, recital 19, paragraph 9; documents 33.126/11728and 11729), but was opposed to 'random exports (notes on the Head Delegatesmeeting of 19 March 1984; contested decision, recital 19, paragraph 10; documents33.126/11733 to 11737), namely uncontrolled or unregulated exports. The existenceof imports or exports in a specific case is not therefore of such a nature as to sheda different light on the specific documentary evidence of the existence of theCembureau agreement (SO, points 9 and 61; contested decision, recitals 18, 19 and45). 1267. The Asland document of 24 September 1986 (documents 33.322/1607 and 1608)must be placed in context, namely that of the specific threat represented by importsfrom Greece at that time. The comments which Italcementi might have made onthe basis of that document, if it had been made available to it during theadministrative procedure, would not therefore have been of such a nature as toshed a different light on the body of specific documentary evidence showing theprior conclusion of a general agreement, on a European scale, to ensure non-transhipment to home markets and to regulate sales from one country to another. 2.21. Case T-68/95 Holderbank v Commission 1268. In its observations of 8 February 1997 Holderbank contends, first, that if it had hadaccess during the administrative procedure to the chapters of the SO concerningthe United Kingdom agreement and concerted practice (chapters 4 and 14) and tothe documents relating thereto it could have shown that the absence of exports tothe other Member States was explained by circumstances unconnected with thealleged Cembureau agreement. It observes in that regard that the Commission itselfasserts in points 38, 73 and 74 of the SO that the United Kingdom market wasentirely isolated, partitioned and, therefore, inaccessible to foreign competitors asa result of the CPMA (see paragraph 91 above). The abovementioned points of theSO would therefore contradict the existence of the alleged Cembureau agreement. 1269. Next, Holderbank points to a series of documents in the file on the UnitedKingdom  essentially correspondence during 1986-1987 between the members ofthe CMF and with the OFT (see paragraph 1147 above)  which, had it had access to them during the administrative procedure, would have enabled it to substantiateits assertion that the United Kingdom market was in fact inaccessible to continentalproducers. It cites in particular the letter of the chairman of the CMF to the OFT(documents 33.126/17624 and 17625) which states that by virtue of the 'deliveredprice system, which distinguished the United Kingdom from the majority ofwestern European markets, cement intended for United Kingdom customers hadto be delivered to the building site, which caused considerable practical difficultiesfor potential foreign competitors. It is also apparent from documents 33.126/17625and 17641 to 17653 that, contrary to the Commission's allegations, in reality, takinginto account transport costs, United Kingdom prices were less than those chargedon the continental markets, in particular in West Germany; that would have beenlikely to curb exports to the United Kingdom. Those documents would thereforehave enabled Holderbank to counter, during the administrative procedure, theobjection that the absence of export activity was due to an international agreement.Documents 33.126/17642 and 17643 show that at the material time there was areduction in demand in the United Kingdom. That fact is also exculpatory evidence,because the increasing surplus capacity of the United Kingdom market would havehad the effect of increasing the pressure of costs on local producers and therebyreinforcing their tendency to hinder imports. Document 33.126/17646 relating toimports from Greece, former East Germany and Poland show that, on account inparticular of the retaliatory measures adopted on prices by local producers, theforeign producers could not hope to import into the United Kingdom except byway of dumping. Holderbank concludes on that point by annexing to itsobservations of 8 February 1997 a series of minutes from the meetings of the CMF(documents 33.126/17062, 17090, 17099, 17100, 17134, 17141, 17142, 17147, 17149,17158, 17163 to 17168, 17171, 17183, 17193, 17200, 17211, 17215, 17220, 17227,17262, 17280, 17623, 17624, 17666, 17667 and 17696 to 17699), which strikinglyillustrate the division and partitioning of the United Kingdom market. 1270. Finally, in the file relating to Greece, it points to a note of the Heracles board of29 September 1986 (documents 33.126/19881 and 19882) which, it claims, revealsthat the Commission took the statement of Mr Kalogeropoulos of 25 June 1986(SO, point 9; contested decision, recital 18, paragraph 5; documents 33.126/19875to 19877) out of context. That note clearly shows that exports from Greece to theUnited Kingdom were prevented solely by the United Kingdom agreement andconcerted practice, not by an international agreement. 1271. The Court points out that in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) the Commission relied on specific documentary evidencein establishing the existence of the Cembureau agreement. Neither the alternativeexplanations for lack of intra-Community trade in cement, based on the existencein the United Kingdom of agreements to share and partition the home market, northe comments which Holderbank could have made in regard to the note of theHeracles board of 29 September 1986 (documents 33.126/19881 and 19882) wouldhave been of such a nature as to shed a different light on the specific documentary evidence of the existence of the Cembureau agreement. It should be added that theHeracles note of 29 September 1986 merely states: 'Until now, in England, theagreement has terrorised the market and prevented the large undertakings in thefield of ready-to-use concrete from purchasing Greek cement otherwise they willreceive a lot of trouble. There are therefore no grounds for asserting that thatnote refers to the United Kingdom agreement rather than to the Europeanagreement. Even assuming that, as Holderbank alleges, the author of the notewished to refer to the United Kingdom agreement, that does not preclude the priorexistence of a broader European agreement 'supporting that local agreement.Holderbank's criticisms, in the light of the Heracles note of 29 September 1986, ofthe statement by Mr Kalogeropoulos, the chairman of Heracles, of 25 June 1986,which refers specifically to the 'interplay of the United Kingdom and Europeanagreements (see paragraph 913 above) in the context of the Greek problem, couldnot therefore have shed a different light on the body of specific documentaryevidence on which the Commission relied in finding that the Cembureau agreementexisted. 2.22. Case T-69/95 Hornos Ibéricos v Commission 1272. First, in its statement of 10 February 1997 Hornos Ibéricos submits that theexistence of a United Kingdom agreement and concerted practice, not the allegedCembureau agreement, made it impossible for other producers to penetrate theUnited Kingdom market. That fact is clear from the chapters of the SO relating tothe United Kingdom (Chapters 4 and 14) and from a note of the Heracles boardof 29 September 1986 (documents 33.126/19881 and 19882). The fact that theapplicant did not have access to those documents during the administrativeprocedure therefore infringed its rights of defence. 1273. For the reasons set out in paragraph 1271 above, that argument must be rejected. 1274. Second, in its statement of 10 February 1997 the applicant refers to an internalnote of the Commission's DG III of November 1994, which shows that theCommission's analysis of the market in the contested decision is erroneous. 1275. It should be recalled that, in principle, the applicants are not entitled to access tothe Commission's internal documents (judgments in Case C-310/93 P BPB Industriesand British Gypsum v Commission, cited in paragraph 144 above, paragraph 25, andin Case T-7/89 Hercules Chemicals v Commission, cited in paragraph 140 above,paragraph 54; order in NMH Stahlwerke and Others v Commission, cited inparagraph 196 above, paragraph 35). That restriction on access to internaldocuments is justified by the need to ensure the proper functioning of theCommission when dealing with infringements of the Community competition rules(order in NMH Stahlwerke and Others v Commission, cited above, paragraph 36). 1276. The Court finds that the internal note to which Hornos Ibéricos refers was notrendered accessible through the measures of organisation of procedure prescribedby the Court. The applicant, which cannot prove that the internal note of DG IIIwas disclosed to it in a lawful manner, may not base any argument on its content.In any event, even if it had been lawfully disclosed to the applicant during theadministrative procedure, the outcome of that procedure could not have beendifferent. It is a note sent in November 1994 to the Director-General of DG IVcontaining some suggestions from DG III with a view to the imminent adoption ofthe contested decision. If the applicant had been able to draw the Commission'sattention to some aspects of the note before the adoption of the contested decisionthat could not have had any effect on the contested decision, because theCommission adopted that decision on 30 November 1994 with full knowledge of allthe information in the note in question. Furthermore, in the SO (points 9 and 61)and in the contested decision (recitals 18, 19 and 45) the Commission relied onspecific documentary evidence in finding the infringement referred to in Article 1of the contested decision. If the applicant had been able, during the administrativeprocedure, on the basis of the internal note from DG III, to submit that therelevant market did not have a European dimension, that would not have been ofsuch a nature as to shed a different light on the specific documentary evidenceshowing the existence of the Cembureau agreement and also, having regard to theEuropean nature of the agreement and concerted practice, the Europeandimension of the relevant market. 2.23. Case T-87/95 Cementir v Commission 1277. First, in its observations of 10 February 1997 Cementir asserts that in the nationalfiles it found a number of documents proving that the European cement marketwas naturally divided into separate zones, that intra-Community trade in cementwas necessarily restricted to the frontier zones or, where possible, to exports by seaor river, and that such trade could at most involve certain specific undertakings, ofwhich Cementir was not one, as it did not carry out any export business. Itconsiders that in the light of those facts the Commission would have had torecognise that its 'European concept of the cement market distorted the facts andthat, consequently, it was arbitrary to assume that there was a single generalconcerted practice, whose anti-competitive effects were spread throughout Europe. 1278. Cementir adds that if the Commission had concentrated its attention on individualbehaviour on the national markets, it might have discovered infringementscommitted by one or other undertaking on certain clearly defined segments ofthose markets but would never have concluded that there was a European-wideagreement designed to ensure that there was no transhipment to home markets,a conclusion for which there is no evidence in the documents consulted. In supportof its contentions, Cementir cites a document relating to the Greek-Spanishagreement on the creation of the CMA (see paragraph 1040 above) (documents 33.126/19220 to 19223), minutes of the meeting of the CMF on 17 July 1986(documents 33.126/17157 to 17159), which refer to the measures taken by theUnited Kingdom producers in order to combat imports of Greek cement into theUnited Kingdom, internal SFIC documents relating to imports in 1985, 1987 and1988 (documents 33.126/14956 to 14976), the minutes of the Heracles boardmeeting of 23 July 1986 (documents 33.126/19878 to 19880), and a series ofdocuments showing that the actions taken by various Italian producers in order toprotect the Italian market against Greek imports had no connection with thealleged Cembureau agreement (documents 33.126/2945 to 2948, 2949 to 2951, 2934,2935, 2954 to 2966, 3065 to 3068). It also refers to the decision in 1972 of theBundeskartellamt finding a local agreement and concerted practice to be unlawful.It also refers, without identifying them precisely, passages in the SO indicating thatLafarge controlled Wössinger Zement (Germany) and Asland (Spain). It claimsthat those passages show that the export policy of those companies was that of agroup strategy, not the application of an alleged principle that there should be notranshipment to home markets. Finally, Cementir claims that Chapters 8 and 9 ofthe SO show that Oficemen, SECIL and Cimpor had concluded agreementsconcerning the Spanish and Portuguese markets, the effect of which, on theCommission's own admission, was to make imports of cement from abroad almostimpossible. 1279. In its observations of 29 December 1997 Cementir also claims that a number ofdocuments show the existence of agreements on the Belgian market from 1965onwards (documents 33.126/860, 861 and 1543 to 1551) and bi- or multilateralcontacts, cross-border agreements or draft agreements concerning the German,Netherlands and Belgian markets (documents 33.126/1119 to 1134, 1175 to 1179and 1574 to 1577), the Belgian and French markets (documents 33.126/837, 838and 985 to 1009), the French and Spanish markets (documents 33.126/4066 to4069), and the Luxembourg, German and French markets (documents 33.126/4251to 4253 and 4263 to 4269). All those documents confirm that the agreements,concerted practices and other types of cooperation which were able to exist inparticular zones had a purely local origin and explanation and were unconnectedwith an alleged European agreement and concerted practice. None of thosedocuments makes any allusion to such an agreement or concerted practice. Lastly,an FIC document (documents 33.126/2105 to 2113), which reflects the Belgianassociation's view of Cembureau's role and which shows that it was reluctant tocommunicate certain information to Cembureau, fully confirms Cementir'sassertions regarding the function and powers of Cembureau and the absence ofgeneral concerted action between the European producers at the level ofCembureau. 1280. The Court points out that in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) the Commission relied on specific documentary evidencein establishing the existence of the Cembureau agreement. That documentaryevidence shows that at their meeting of 14 January 1983 the Head Delegates concluded an agreement on non-transhipment to home markets and regulation ofsales from one country to another, an agreement subsequently confirmed at themeetings of 19 March and 7 November 1984. If, on the basis of the documents towhich it refers, Cementir had been able, during the administrative procedure, toput forward arguments relating to the reference market that could not have alteredthe outcome of the administrative procedure. The very existence of the Cembureauagreement concluded on a pan-European scale directly contradicts Cememtir'scontention that the geographical reference market for cement is not Europe.Furthermore, neither the absence of any allusion to the Cembureau agreement inthe various documents put forward by Cementir, nor the alternative explanationsbased on the existence of natural and technical barriers to cross-border trade incement or forms of cooperation and local and regional agreements  sometimesdating from well before 1983 and allegedly unconnected with a Europeanagreement to share markets  which Cementir could have put forward to explainthe low volume of intra-Community trade in cement during the period in question,nor the comments which it could have made on Cembureau's role and powers andthe reluctance of some associations to communicate certain information toCembureau, would not have been of such a nature as to shed a different light onthe specific documentary evidence on which the Commission relied in establishingthe existence of the Cembureau agreement. On the contrary, the explanationsbased on 'natural barriers to inter-State trade in cement which Cementir mighthave put forward if it had had access to the whole of the SO during theadministrative procedure would have been of such a nature as to underline thegravity of the infringement committed, because by concluding the Cembureauagreement the Head Delegates attempted to eliminate what little actualcompetition remained on the market (see paragraph 1088 above). 1281. Second, in its observations of 29 December 1997 Cementir argues that a series ofdocuments (documents 33.126/2056 to 2062) show that following a price increaseon the Belgian market in 1984 local customers began to turn to German cement,which was less expensive. It refers, moreover, to a CBR document of 17 January1986 (documents 33.126/10193 to 10198) which refers to imports into Belgium ofGerman cement and is thus at variance with the existence of the Cembureauagreement. 1282. The Court points out that the Commission has never alleged that the effect of theCembureau agreement had been to eliminate all intra-Community trade in cementand any temptation to engage in inter-State trade. According to Article 1 of thecontested decision, the Cembureau agreement was found to be an infringementbecause of its anti-competitive object. Furthermore, 'random exports to Belgiumwere explicitly referred to at the Head Delegates meeting of 19 March 1984 (noteson the meeting of 2 April 1984; contested decision, recital 19, paragraph 10;documents 33.126/11733 to 11737). The fact that the CBR document of 17 January1986 attests the existence of some 'random exports to Belgium, of which the HeadDelegates were aware, shows at the very most that some Community producers did not always comply with the Cembureau agreement; it is not of such a nature as toshed a different light on the specific documentary evidence on which theCommission relied in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) in finding that the Cembureau agreement existed. On thecontrary, the content of that document shows the effectiveness of the Cembureauagreement. The note in question states: 'Imports of German cement into Belgiumappear stable, although remaining at a relatively high level. They reached 250 000tonnes in 1983, 220 000 tonnes in 1984 and will probably reach 203 000 tonnes in1985. 1283. Third, in its observations of 29 December 1997 Cementir puts forward a series ofdocuments which it claims show the lawfulness of the subjects discussed at the twoHead Delegates meetings in which it took part, namely those of 14 January 1983and 7 November 1984. Other documents (documents 33.126/1175 to 1179, 2026 to2049, 2050 to 2053, 2056 to 2062 and 5295) would have confirmed that the objectof the two meetings was to examine changes in dumped imports from easternEurope and lawful means of meeting them (complaint to the Commission), as wellas conditions on the world cement market. That is also the context in whichallusion was made at the meeting of 14 January 1983 to the Belgo-Netherlandsbasing point system which had been notified to the Commission in 1981 but inregard to which the Commission had not yet officially reacted at that time.Cementir considers that access to all those documents during the administrativeprocedure would have enabled it to put forward an interpretation of the documentson which the Commission relied in establishing the existence of the Cembureauagreement that was totally different from the Commission's interpretation of themin the contested decision. 1284. For the reasons set out in paragraph 1208 above, that argument would not havebeen of such a nature as to alter the outcome of the administrative procedure. 2.24. Case T-88/95 Blue Circle v Commission 1285. First, in its memorandum of 10 February 1997 Blue Circle contends that thenational chapters of the SO and the documents relating to it refer to the existenceof local agreements and concerted practices (national, bilateral or multilateral)which, as the Commission accepts in the national chapters of the SO, had the effectof partitioning the markets in question or, at least, of materially affecting inter-Statetrade. However, those local agreements are wholly unconnected with a pan-European agreement or concerted practice. The local agreements were thuswrongly regarded by the Commission as proof of the existence or implementationof a Cembureau agreement. Moreover, since the agreements and concertedpractices described in the national chapters of the SO prevented trade in cementbetween Member States, the national files could have supported the observationsmade on its behalf by its economic expert, Dr Williamson, and his argument that the patterns of trade in cement found on the market over the period in question,in particular exports from Greece, were explicable by factors other than an allegedEuropean agreement and concerted practice. Blue Circle also contends that anumber of items in the national files show that bilateral agreements such as theGreco-Spanish agreement or the Hispano-Portuguese agreement, which theCommission had initially rightly included within the national objections and thendropped, were ultimately 'recycled by the Commission as evidence of theexistence of a Cembureau cartel. 1286. In support of each of those arguments Blue Circle puts forward passages ordocuments taken from the files relating to Greece, Germany, France, Italy, Spainand Portugal, which it identifies by reference to the numbers in the top right cornerof the page, their title or location in the SO. None of those documents are,however, appended to its memorandum. 1287. The Court finds that, by not appending to its memorandum the documents referredto therein, contrary to the clear instructions in the measure of 2 October 1996, BlueCircle made it impossible for the Court to identify those documents with theprecision necessary to assess their relevance to Blue Circle's defence during theadministrative procedure. Moreover, Blue Circle had an opportunity to make goodits error after the measure of 18 and 19 June 1997, which granted it full access tothe Commission's file, including documents already covered by the measure of 2October 1996 other than documents making up file IV/27.997 (the CMF filerelating to the CPMA (see paragraphs 91 and 93 above)), on which Blue Circle didnot rely in its observations of 10 February 1997. 1288. In any event, the alternative explanations based on the economic analysis of themarkets or the existence of many local (national, bilateral or multilateral)agreements which Blue Circle could have provided in regard to the patterns ofinter-State trade in cement over the period in question would not have been ofsuch a nature as to shed a different light on the body of specific documentaryevidence on which the Commission relied in finding that the Cembureau agreementexisted (SO, points 9 and 61; contested decision, recitals 18, 19 and 45).Furthermore, the existence of national agreements and other local agreements,such as the Greco-Spanish agreement or the Hispano-Portuguese agreement, wasnot taken into account by the Commission as proof of the existence of theCembureau agreement; the existence of that agreement was established exclusivelyon the basis of the documentary evidence referred to in points 9 and 61 of the SOand in recitals 18, 19 and 45 of the contested decision. Consequently, the commentswhich Blue Circle could have made in order to show that there was no connectionbetween the local agreements and the Cembureau agreement could not havealtered the outcome of the administrative procedure as regards the finding of thevery existence of the agreement referred to in Article 1 of the contested decision. 1289. Second, in its statement of 12 December 1997 Blue Circle submits that examinationof the documents which it was able to inspect following the measure of 18 and 19June 1997 supports its contention that the European cement industry was riddledwith local, national, bilateral or multilateral agreements. Blue Circle considers thatif it had had access to the entire file and the entire SO during the administrativeprocedure it could have drawn the Commission's attention to the existence of thoseagreements and the fact that they were totally independent of an allegedCembureau agreement not to tranship to domestic markets. It could thus havecaused the Commission to tackle those local agreements alone and to attributeresponsibility for them only to the producers involved in them. The Commission'sanalysis in the SO and in the contested decision is also quite at variance with theevidence in a number of documents (documents 33.126/4226, 4227, 4379 to 4392,6858 to 6865, 6908, 6912, 6913, 6920, 6921, 6923 to 6976, 7041, 7046 to 7048, 7766to 7772, 8124 to 8138, 8152 and 16936 to 16938). They show that various majorEuropean cement producers pursued active, competitive and expansionist policiesof acquiring controlling shareholdings in foreign companies. According to BlueCircle, that practice is wholly inconsistent with the implementation of an allegedagreement not to tranship to home markets. Those documents also show thatseveral companies had shareholdings, sometimes cross-shareholdings, in otherEuropean cement producers. They would thus have enabled Blue Circle to providea plausible alternative explanation for the low level of inter-State trade in cementduring the period in question. Some of the documents (documents 33.126/6914,6959, 8124 to 8138 and 8152) which provide details of some of those acquisitions,show that in the months preceding the acquisitions in question the purchaser andvendor often engaged in discussions on prices, imports and exports, the possibilityof joint action, etc. Viewed in context, they clearly show that the purchaser's desirewas not to implement the Cembureau agreement but rather to obtain informationon the target market in order to value the shares of the target company. BlueCircle submits that none of those documents refers to Cembureau or suggests theexistence of any agreement not to tranship to home markets or that such anagreement existed. It argues that if it had had access to those documents during theadministrative procedure it could have deepened its analysis of the Europeancement market and of the network of main relationships and controllingshareholdings which existed on that market. It could thus, by providing a differentexplanation for the functioning of the market than that given by the Commission,have refuted the Commission's theory based on the existence of a single andcontinuous European agreement pursuant to which there was to be notranshipment to home markets. 1290. A number of other documents (documents 33.126/270, 781 to 807, 839 to 843, 847to 849, 853 to 859, 1175 to 1245, 4066 to 4068, 4073, 5671 to 5724, 6883, 8124 to8138, 8186, 13498 to 13509, 13532, 13542, 18517, 18533 and 18534, and documents33.322/923 to 929) clearly show that the cement market was traditionally dividedby many local, national, bilateral (in particular between France and Belgium,France and Portugal, and Belgium and the Netherlands) or multilateral agreements (in particular between the Benelux countries, Germany and France), some of whichwent back to 1964. The documents relating to all those agreements in themselvesundermine the Commission's theory based on the existence of a Europeanagreement, because they offer a plausible alternative explanation for the lowvolume of intra-Community trade in cement. Blue Circle submits that some of thelocal agreements referred to in the national chapters of the SO, and the documentsrelating to them, expressly sought to promote export trade (for example, documentsrelating to the Franco-Portuguese cooperation agreement and to the agreementsbetween the Benelux countries, France and Germany, and also documents relatingto the French company, Norcim). 1291. Other documents show that numerous economic, commercial, technical or legalfactors, such as different national price control mechanisms (documents33.126/3333, 3336 to 3338 and 3342 to 3345), different transport costs (documents33.126/1224 to 1238, 3524 to 3526 and 3536 to 3542), differences in quality andspecifications (documents 33.126/3556, 5678 and 5699), different tax systems andenvironmental controls (document 33.126/3589) and the existence on some marketsof subsidies or special advantages for the local industry (document 33.126/5673)affected inter-State trade in cement and therefore explained the fragmentation ofthe markets observed during the period in question. 1292. Lastly, the existence of the local agreements, the network of cross-shareholdingsand the other factors referred to above, which were liable to reduce trade betweenMember States, also show that the European cement producers had no interest inadopting, at the level of Cembureau, a principle that there should be notranshipment to home markets. 1293. The Court points out that in the SO (points 9 and 61) and in the contested decision(recitals 18, 19 and 45) the Commission relied on specific documentary evidencein establishing the existence of the Cembureau agreement. Neither the absence ofany explicit or implicit allusion to Cembureau, the Cembureau agreement or anyEuropean agreement on non-transhipment to home markets in the documentsreferred to by the applicant in its observations of 12 December 1997, nor thealternative explanations based on the existence in Europe of a large number ofnational, bilateral or multilateral agreements, some of which predated 1983, theshareholding structure of European companies in the cement sector or theexistence of economic, commercial, legal and technical obstacles to inter-State tradein cement which Blue Circle could have supplied for the low volume of intra-Community trade in cement during the period in question, nor the comments whichit could have made on the basis of documents illustrating the expansionist policyof various European groups in the cement sector and the individual or joint exportactivities of various European producers, would have been of such a nature as toshed a different light on the specific documentary evidence on which theCommission relied in establishing the existence of the Cembureau agreement. Onthe contrary, the comments on the various factors which contributed to the fragmentation of the markets which Blue Circle might have submitted, had it hadaccess to the entire SO and the entire investigation file during the administrativeprocedure, would have been of such a nature as to underline the gravity of theinfringement committed, because by concluding the Cembureau agreement theHead Delegates tried to eliminate what little actual competition remained on themarket (see paragraph 1088 above). 1294. The Court points out that the Commission has never claimed that the Cembureauagreement and the implementing measures had had the effect of eliminating allintra-Community trade in cement and any temptation to engage in inter-Statetrade. According to Article 1 of the contested decision, the Cembureau agreementconstituted an infringement because of its anti-competitive object. Furthermore, theCembureau agreement did not prohibit 'traditional or even structural inter-Statetrade (memorandum to the Chairman for the Head Delegates meeting of 19March 1984; contested decision, recital 19, paragraph 9; documents 33.126/11728and 11729) but was opposed to 'random exports (notes on the Head Delegatesmeeting of 19 March 1984; contested decision, recital 19, paragraph 10; documents33.126/11733 to 11737), namely uncontrolled or unregulated exports. The existenceof imports or exports in a specific case is not therefore of such a nature as to sheda different light on the specific documentary evidence of the existence of theCembureau agreement (SO, points 9 and 61; contested decision, recitals 18, 19 and45). Finally, as regards the argument that there was no connection between thelocal agreements and the Cembureau agreement, the Court refers to paragraph1288 above. 3. Conclusions 1295. Italcementi and Blue Circle have not succeeded in showing that their rights ofdefence were infringed during the administrative procedure because they were notgiven access to documents subsequently used to support the finding of theinfringement referred to in Article 1 of the contested decision. As regards theexculpatory evidence that is alleged to be included in the parts of the SO and theinvestigation file to which access was not given during the administrative procedure,the Court finds that the 39 applicants concerned by the measures of 2 October1996 and 18 and 19 June 1997 (see paragraphs 124 and 158 to 172 above) have notsucceeded in showing that the comments which they could have made on the basisof documents that had been inaccessible to them would have had even a smallchance of altering the outcome of the administrative procedure as regards theexistence of the infringement referred to in Article 1 of the contested decision (seeparagraph 247 above). In those circumstances, the restricted access to the SO andto the investigation file which they had during the administrative procedure did notprejudice their defence against the objection relating to the existence of theCembureau agreement. The applicants' participation in the Cembureau agreement A  Preliminary observations 1296. The Commission has proved that the Cembureau agreement existed (see paragraph1095 above). 1297. The Commission found that various measures governed and conditioned by theCembureau agreement had been taken by various undertakings and associations ofundertakings (contested decision, recital 46, paragraph 1). Thus it took the viewthat all the following were measures implementing the Cembureau agreement: thespecific and periodic exchanges of information on prices within the framework ofCembureau (contested decision, Article 2), the Franco-Italian agreements andconcerted practices (contested decision, Article 3(1)), the Hispano-Portugueseagreement (contested decision, Article 3(2)), the Franco-German agreements andconcerted practices (contested decision, Article 3(3)), the measures adopted in theframework of the ETF (contested decision, Article 4), the ECEC (contesteddecision, Article 5) and the EPC (contested decision, Article 6). It stated(contested decision, recital 46, paragraph 2, second subparagraph) as follows: '...The objects are identical in all instances, namely the common rule on non-transhipment to home markets, the other arrangements being merely measures toimplement or back up that rule. The participants are also identical, since thesituation is characterised by the accession of the European cement industry, directlyor through the national trade associations, to a common rule and by theimplementation of that rule, in the various specific cases, by those most directlyinvolved. For that reason it took the view (contested decision, recital 46,paragraph 1, first subparagraph) that 'the whole of the arrangements adoptedwithin the framework of Cembureau and the bilateral and/or multilateral meetingsand contacts [... had] constituted a single and continuous agreement. 1298. The infringement referred to in Article 1 of the contested decision relates to thatsingle and continuous agreement. 1299. All the parties submit that the Commission committed an error of assessment orinfringed Article 85(1) and/or Article 190 of the Treaty in finding that theyparticipated in the infringement referred to in Article 1 of the contested decision. The Court must therefore first examine whether, on the basis of the evidence setout in the contested decsion, the Commission was entitled to find that had theyparticipated in the Cembureau agreement. 1300. For the purpose of that analysis, the situation of Cembureau and its directmembers must be distinguished from that of the other addressees of the contesteddecsision. 1301. As regards Cembureau and its direct members, the decision states that theCembureau agreement was concluded by 'Cembureau and its members 'at themeeting of Head Delegates held on 14 January 1983 (contested decision, recital45, paragraph 1) and that the same parties confirmed the content of thatagreement at the meeting of Head Delegates held on 19 March and 7 November1984 (contested decision, recital 45, paragraph 2). For that reason, Cembureau andits direct members are considered to be '[direct] parties to the agreement on non-transhipment to home markets and the regulation of sales from one country toanother (contested decision, recitals 45, paragraph 10, and 65, paragraph 3, firstsubparagraph). 1302. Although Cembureau and all its direct members had, according to the Commission,participated in one or more of the implementing measures referred to in Articles2 to 6 of the contested decision, the proof of their participation in the Cembureauagreement does not depend on their participation in those measures. That proofis based on their participation in the Head Delegates meetings and, in the case ofthe direct members, also on their membership of Cembureau (contested decision,recitals 44, paragraph 4, 45, paragraphs 1 and 2, and 65, paragraph 3, firstsubparagraph). 1303. However, in the case of the direct members of Cembureau established outside theCommunity at the time of the Head Delegates meetings, the Commission fixed thestarting date of their participation in the infringement referred to in Article 1 of thecontested decision by reference to their participation in a measure implementingthe Cembureau agreement within the Community (contested decision, recitals 45,paragraph 11, and 65, paragraph 4). 1304. As regards the other addressees of the contested decision, Article 1 refers toseveral indirect members of Cembureau and Buzzi. 1305. With regard to the indirect members of Cembureau, the Commission took the viewthat the Head Delegates appointed by the national associations represented theirmembers at the meetings in which the Cembureau agreement was concluded andthen confirmed. The Commission observes in that regard (contested decision,recital 44, paragraph 5): '... if the associations enter into commitments, they do soin the interests of their members and in the name of their members and not intheir own interest: in point of fact, the cement producers are the real actors, actingthrough their trade associations. It adds (contested decision, recital 65, paragraph3, first subparagraph): 'however, for the purposes of [the contested] decision, theCommission takes into consideration only the undertakings which were representedwithin Cembureau by their association and which, in addition to their membershipof the association, clearly manifested their accession to the agreement byparticipating in a measure implementing the Cembureau agreement. The proofof the participation of the indirect members of Cembureau in the Cembureauagreement may therefore be seen in their participation in one or more measures implementing it. For that reason, the indirect members are considered to have'participated indirectly in the [Cembureau] agreement, through their participationin the various arrangements and measures agreed on to supplement the generalagreement and/or assist in its implementation (contested decision, recital 45,paragraph 10). 1306. Lastly, in the contested decision, Buzzi, which is neither a direct nor an indirectmember of Cembureau, is considered to have acceded to the Cembureauagreement through its participation in the Franco-Italian agreements and concertedpractices referred to in Article 3(1) of the contested decision (contested decision,recital 65, paragraph 3, first subparagraph, and third paragraph under (c), andparagraph 4, third subparagraph, first indent). B  Membership of a national association that is a member of Cembureau as acriterion for attributing liability for the infringement referred to in Article 1 of thecontested decision 1307. CBR (T-25/95), ENCI (T-31/95), Dyckerhoff (T-35/95), Vicat (T-37/95), CimentsFrançais (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Alsen-Breitenburg(T-45/95), Nordcement (T-46/95), Rugby (T-53/95), Cimpor (T-61/95), SECIL(T-62/95) and Hornos Ibéricos (T-69/95) contend that the Commission committedan error of law in finding that they participated in the Cembureau agreementbecause they were members of a national association that was a direct member ofCembureau. 1308. The Court points out that, according to the SO, the Cembureau agreement hadbeen concluded by Cembureau and its members and the indirect members ofCembureau had adhered to the Cembureau agreement ex nunc with effect from thedate on which they participated in a measure implementing that agreement. However, the SO does not take Cembureau's indirect members' membership of anational association as the basis for attributing liability to them for the infringementconstituted by the Cembureau agreement (see paragraphs 554 to 562 above). 1309. It follows that in the contested decision the Commission was not entitled to rely onmembership of a national association that was a member of Cembureau as acriterion for attributing liability for the infringement referred to in Article 1. As hasalready been pointed out, the sole criterion on which the Commission could lawfullyrely as against the indirect members of Cembureau was that of accession to theCembureau agreement by virtue of participation in a measure implementing it(contested decision, recitals 45, paragraph 10, and 65, paragraph 3; see paragraphs563 and 564 above). It is the same criterion for attributing liability as is used in theSO. 1310. The Court must therefore examine whether the participation of the indirectmembers of Cembureau in the Cembureau agreement is shown sufficiently clearlyby their participation in one or more measures implementing the agreement(contested decision, recital 65, paragraph 3, first subparagraph). 1311. In those circumstances, the argument in question is devoid of purpose and must berejected. C  Power of Head Delegates and associations of undertakings to conclude theCembureau agreement 1312. First, CBR (T-25/95), Cembureau (T-26/95), FIC (T-30/95), VNC (T-32/95),Dyckerhoff (T-35/95), SFIC (T-36/95), Vicat (T-37/95), Ciments Français (T-39/95),Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), Alsen-Breitenburg(T-45/95), Nordcement (T-46/95), BDZ (T-48/95), Unicem (T-50/95), Rugby(T-53/95), BCA (T-54/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL(T-62/95), ATIC (T-63/95), Italcementi (T-65/95), Cementir (T-87/95) and AGCI(T-103/95) contend that an agreement such as the Cembureau agreement does notfall within the scope of the activities authorised in Cembureau's statues or in thestatutes of the various national trade associations involved. The Head Delegates arenot an organ of Cembureau or an organ of those associations with authority undertheir respective statutes to commit the members of Cembureau in a valid manner.Nor did the direct members of Cembureau ever authorise them to conclude theCembureau agreement. 1313. The argument that Cembureau and the Head Delegates of Cembureau had nopower under the statutes to conclude the Cembureau agreement has already beenrejected (see paragraphs 923 to 928 above). For the same reasons, any argumentbased on lack of competence under the statutes of the direct members ofCembureau must also be rejected. As the Commission correctly found, on the basisof the evidence put forward in recitals 18, 19 and 45 of the contested decision, thatthe Cembureau agreement was concluded at the meeting of the Head Delegatesheld on 14 January 1983 and was confirmed at the meetings of the Head Delegateson 19 March and 7 November 1984 (see paragraph 1095 above), the only questionis whether the Head Delegates acted in the name and on behalf of the directmembers of Cembureau. 1314. According to the first subparagraph of paragraph 6 of Cembureau's Articles inforce during the period considered by the contested decision, each member ofCembureau was to nominate, before each meeting of Cembureau's GeneralAssembly, the representative who was to cast its vote. The representatives ofCembureau's direct members so nominated were called 'Head Delegates. Thatwas confirmed by Cembureau in its reply to the SO, page 7 (contested decision,recital 15, paragraph 4): 'As is the case with government representatives on international bodies, and despite the fact that the title Head Delegates is notprovided for in the Articles ... a person was appointed Head Delegate in orderto cast votes in the General Assembly. Cembureau kept an up-to-date list of suchHead Delegates. 1315. It follows that the Head Delegates were authorised by the direct members to takedecisions at Cembureau's General Assembly. Their actual power of representationwas not, however, limited to the Cembureau general assemblies alone. 1316. It is apparent from the telex of 17 November 1982 (contested decision, recital 19,paragraph 3; document 33.126/11558) from Mr Van Hove to Mr Collis and MrDutron, directors of Cembureau, that the Head Delegates represented the directmembers of Cembureau also at the meetings of the Head Delegates organised byCembureau. In that telex Mr Van Hove, the Belgian Head Delegate, suggested thathe 'be invited [to the meeting of Head Delegates on 14 January 1983] as chairmanof the CLC for EEC problems and that Belgium appoint somebody else as HeadDelegate. 1317. That finding is corroborated by the 'official letter convening the Head Delegatesmeeting of 14 January 1983 (document 33.126/11554) which was sent to all thedirect members of Cembureau. It is unequivocally clear from that letter that theHead Delegates were invited to the meeting of 14 January 1983 not in theirpersonal capacity, but in their capacity as representative of a direct member ofCembureau. It stated: 'to have any chance of positive results it is necessary that allMembers are involved and participate in a common reflection. For this reason, Iam inviting you to a special meeting [of Head Delegates] to be held in the officeof Cembureau in Paris on 14 January 1983 at 9 am. 1318. In those circumstances, the Commission was entitled to take the view that when theHead Delegates concluded and then confirmed the Cembureau agreement at theirmeetings of 14 January 1983, 19 March and 7 November 1984 they wererepresenting and committing the direct members of Cembureau. 1319. Second, FIC contends that by its nature a trade association is not able to concludean agreement restricting competition within the meaning of Article 85(1) of theTreaty, as it does not carry on any commercial or economic activity. To the sameeffect, Cembureau submits that an association must play an active commercial roleif Article 85(1) of the Treaty is to apply to it. ATIC states that by virtue of itsstatutes it could not carry on any type of commercial activity. 1320. As the Commission rightly observes in the contested decision (recital 44, paragraph2) it is not necessary for trade associations to have a commercial or economicactivity of their own for Article 85(1) of the Treaty to be applicable to them (Case71/74 Fruit- en Groentenimporthandel and Frubo v Commission [1975] ECR 563,paragraphs 28 to 32, hereinafter 'Frubo; Van Landewyck and Others v Commission, cited in paragraph 717 above, paragraphs 87 and 88; Joined Cases96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ and Others v Commission[1983] ECR 3369, paragraph 19; and Case 123/83 BNIC v Clair [1985] ECR 391,paragraphs 20 and 26; CB and Europay v Commission, cited in paragraph 83 above,paragraphs 76 and 77). Article 85(1) of the Treaty applies to associations in so faras their activities or those of the undertakings belonging to them are calculated toproduce the results which it aims to suppress. To place any other interpretation onArticle 85(1) of the Treaty would be to remove its substance (Frubo, cited above,paragraphs 30 and 31). 1321. It follows that the argument must be rejected. D  The finding that both undertakings and associations were responsible for thesame infringement 1322. Cembureau (T-26/95), SFIC (T-36/95), Vicat (T-37/95), BDZ (T-48/95), Cimpor(T-61/95), SECIL (T-62/95), ATIC (T-63/95) and Italcementi (T-65/95) contend thatthe Commission committed an error of law in finding that both associations andmembers of those associations participated in the infringement referred to inArticle 1 of the contested decision. SECIL states that the same infringement cannotbe characterised as both an agreement and a decision within the meaning of Article85(1) of the Treaty, the former concerning undertakings and the latter associations.One and the same infringement should therefore be characterised either as anagreement between undertakings or as a decision by associations of undertakings.Cembureau, SFIC, Vicat, BDZ, Cimpor, SECIL and ATIC allege that theCommission did not observe the conditions laid down in the case-law for validlyattributing one and the same infringement to an association and to its members. Itstates that such an attribution of responsibility is permissible only where theCommission succeeds in proving that the association's conduct was separate andautonomous from that of its members. In those circumstances, the Commission'sapproach also infringes the non bis in idem rule. Italcementi contends that, if thelogic of the description in the contested decision is followed, the infringementshould be characterised as a decision of an association and not as an agreementbetween undertakings. The Commission ought therefore to have proved thatItalcementi had indicated its agreement to what had been decided at the level ofCembureau and that it had acceded to it. Italcementi's participation in theCembureau agreement could not therefore be based solely on its capacity as amember of Cembureau. 1323. The Court finds that contrary to SECIL's assertion, the Commission did notcharacterise the Cembureau agreement as both an agreement and a decision ofassociations of undertakings. It considers in the contested decision (recital 45,paragraph 5) that 'the rule on non-transhipment to domestic markets and theregulation of sales from one country to another constitute an agreement. 1324. However, in Article 1 of the contested decision the Commission finds not only thatundertakings participated in the agreement found therein but also severalassociations of undertakings and an association of associations of undertakings andundertakings, namely Cembureau. 1325. The Court points out in that regard that the wording of Article 85(1) of the Treatydoes not exclude agreements between associations of undertakings andundertakings from the scope of the prohibitions which it lays down. In order to findthat an association and its members have participated in one and the sameinfringement the Commission must establish conduct on the part of the associationwhich is separate from that of its members (Joined Cases 89/85, 104/85, 114/85,116/85, 117/85 and 125/85 to 129/85 Ahlström Osakeyhtiö and Others v Commission[1988] ECR 5193, hereinafter 'Woodpulp I). 1326. In the present case, there is no doubt as to the separate role played by theassociations in the infringement referred to in Article 1 of the contested decision.Cembureau's separate role consisted in its taking the initiative for the meetings ofthe Head Delegates during which the Cembureau agreement was concluded andthen confirmed, and in preparing those meetings (contested decision, recital 19).The separate role of the national associations that were members of Cembureauconsisted in concluding, then confirming, the Cembureau agreement withCembureau. The indirect members of Cembureau acceded to the agreementthrough the measures implementing that agreement. Their accession was madepossible by the fact that the national associations were invited to spread 'words ofwisdom around them (draft introductory statement by the Chairman for themeeting of 14 January 1983 (contested decision, recital 19, paragraph 5; documents33.126/11583 to 11585)), a circumstance which also underlines the separate roleplayed by the national associations. Lastly, Cembureau and the national associationsplayed a separate role from that of the indirect members of Cembureau in theimplementation of the Cembureau agreement. Only Cembureau and its directmembers are the subject of the infringements constituted by the exchanges of priceinformation found in Article 2(1) and (2) of the contested decision (see paragraphs1450 to 1452 below). 1327. On the other hand, in the contested decision, the member undertakings of theassociations that are the subject of the contested decision are not regarded ashaving concluded the Cembureau agreement. According to that decision (recitals45, paragraph 10, and 65, paragraph 3, first subparagraph), they acceded to theCembureau agreement through their participation in one or more of theimplementing measures referred to in Articles 3 to 6 of the contested decision. 1328. Having regard to the separate roles played by the associations and the undertakingsin concluding and implementing the agreement referred to in Article 1 of thecontested decision, the Commission was entitled to attribute responsibility for that infringement to both the associations and the members of those associations. Forthe same reasons, there was no infringement of the non bis in idem rule. 1329. Lastly, as to Italcementi's argument, irrespective of whether the Cembureau'agreement could also be characterised as a decision of association(s) ofundertakings, the Commission was entitled to characterise the conduct referred toin Article 1 of the contested decision as an agreement within the meaning ofArticle 85(1) of the Treaty, because it had established the existence of aconcurrence of wills between the participants at the meetings of the HeadDelegates of 14 January 1983, 19 March and 7 November 1984 (see paragraph1072 above). Moreover, Italcementi's participation in the Cembureau agreementwas established not merely on the basis of its capacity as member of Cembureaubut also on the basis of its presence at the meeting of Head Delegates on 19 March1984, at which the Cembureau agreement was confirmed (contested decision,recital 19, paragraph 8, recital 45, paragraphs 1, 2 and 10, and recital 65, paragraph3, first subparagraph). Italcementi cannot therefore allege that its participation inthe Cembureau agreement was based solely on its capacity as member ofCembureau. 1330. All the arguments examined must therefore be rejected. E  Participation of Cembureau and its direct members in the infringementreferred to in Article 1 of the contested decision 1331. The Court must examine first whether the Commission has proved the participationof Cembureau and its direct members in the infringement referred to in Article 1of the contested decision (1). The Court will then examine the argument based oninfringement of the principle of equal treatment raised by some direct members ofCembureau (2). The Court will also examine the arguments of Cembureau and ofits direct members relating to inadequacy of the reasoning in the contested decision(3) and infringement of the rights of the defence during the administrativeprocedure on account of insufficient access to certain passages of the SO andcertain documents in the investigation file (4). 1. Proof of participation of Cembureau and its direct members in the infringementreferred to in Article 1 of the contested decision 1332. The direct members of Cembureau are identified in recital 15, paragraph 2, secondsubparagraph, of the contested decision. Article 1 of the contested decision refersto the following direct members: FIC, VNC, Ciments Luxembourgeois, SFIC,Aalborg, BDZ, Unicem, BCA, Oficemen, Irish Cement, ATIC, Italcementi, Aker,EUROC, Cementir and AGCI. 1333. The Court must first examine the argument of Aalborg and of BCA to the effectthat that they were held responsible for acts committed by another legal entity(1.1). It will then analyse, separately, the situation of the applicants whichparticipated in one or more meetings of the Head Delegates (1.2), then that ofUnicem, which did not participate in any of those meetings (1.3). 1.1. Succession of certain direct members of Cembureau 1334. First, Aalborg (T-44/95) complains that the Commission found it responsible for theactions of Aktieselskabet Aalborg Portland-Cement Fabrik, a company whichtransferred its cement production site to Aalborg on 1 January 1990. It states thatthat company has not ceased to exist as a legal person, as it became a holdingcompany which held, under a new name, 50% of shares in Aalborg. As theCembureau agreement was not in written form, it could not have gained awarenessof it upon the transfer. Aalborg also claims that the statement of reasons for thecontested decision is defective as regards the finding that it was liable because ofacts committed by another undertaking. 1335. The Court points out that at the hearing Aalborg acknowledged that its formationon 26 June 1990 and its acquisition, with retroactive effect to 1 January 1990, of thecement plant of Aktieselskabet Aalborg Portland-Cement Fabrik were part of areorganisation of the group to which it belongs. The applicant and AktieselskabetAalborg Portland-Cement Fabrik must therefore be considered to constitute thesame economic entity for the purposes of applying Article 85(1) of the Treaty(Joined Cases 29/83 and 30/83 CRAM and Rheinzink v Commission [1984] ECR1679, paragraph 9). It follows that the Commission was entitled to hold Aalborgresponsible for the activities of Aktieselskabet Aalborg Portland-Cement Fabrik. 1336. As to the alleged defect in the statement of reasons, the Court points out that theSO (appendix 5 to the application) was addressed to Aalborg. At the hearingAalborg acknowledged that in its reply to the SO it had not submitted before theCommission that it could not be held responsible for the activities of AktieselskabetAalborg Portland-Cement Fabrik. In such circumstances, and since the latterundertaking and the applicant constituted one and the same economic entity forthe purposes of applying Article 85(1) of the Treaty, the Commission was notrequired to explain further in the contested decision why it held the applicantresponsible for the conduct of Aktieselskabet Aalborg Portland-Cement Fabrik. 1337. Second, BCA (T-54/95) complains that the Commission held it responsible foralleged unlawful activities conducted by another body, CMF (see paragraph 91above), which represented the British cement industry's interests within Cembureauuntil 1 June 1988. It states that the activities of BCA, viewed as a whole, weresubstantially different from those of CMF. 1338. The Court finds that in the contested decision (recital 45, paragraph 12) theCommission sets out the reasons which led it to take the view that BCA ought tobear responsibility for the conduct of CMF. Thus, it observes that the members ofCMF were members of the Cement and Concrete Association (hereinafter 'CCA)and that on 1 June 1988 CMF was dissolved and its activities, together with therepresentation of the interests of the United Kingdom cement producers, weretransferred to CCA, which, on the same date, changed its articles and changed itstitle to BCA. It considered that there was therefore continuity of CMF's activity byBCA and that the members of the two associations were identical. 1339. It is common ground that until 1 June 1988, the date on which BCA became amember of Cembureau, BCA was called CCA and that prior to that date CMFrepresented the interests of the United Kingdom cement industry withinCembureau. It is apparent from a resolution of CMF of 1 June 1988 (documents33.126/17259 and 17260) that on that date CMF was in fact dissolved and that theapplicant took over its assets. Finally, it is not disputed that the members of thetwo associations were identical, that the last Chairman of CMF became Chairmanof BCA and that the Head Delegate representing CMF in Cembureau (MrMarshall) became the Head Delegate representing BCA. 1340. Even if, as the applicant alleges, the activities of CMF concerned principally theCPMA (see paragraph 91 above), which were terminated in 1987 before thecreation of BCA, and BCA exercises certain functions which were never exercisedby CMF, CMF and BCA are obviously identical as regards the activities theypursued within Cembureau and, accordingly, as regards the conduct for which BCAis held responsible in the contested decision (Suiker Unie and Others v Commission,cited in paragraph 651 above, paragraphs 84 to 88, and CRAM and Rheinzink vCommission, cited in paragraph 1335 above, paragraph 9). BCA succeeded CMFas member of Cembureau and, following the resumption of the activities of CMF,the same person continued to exercise the function of United Kingdom HeadDelegate within Cembureau. 1341. In those circumstances, the Commission was entitled to find that BCA had toanswer for the conduct of CMF within Cembureau. BCA's argument must thereforebe rejected. 1.2. Applicants which participated in one or more meetings of the Head Delegates 1.2.1. Participation in the meetings of the Head Delegates at which the Cembureauagreement was concluded and then confirmed 1342. It is not disputed that Cembureau was represented by its President, Mr Bailly,assisted by two directors, Mr Collis and Mr Dutron, at the three meetings of theHead Delegates referred to in recital 19 of the contested decision. The presence of those persons is moreover clear from the documents entitled 'Meeting of HeadDelegates, Paris, 14 January 1983 (contested decision, recital 19, paragraph 4;document 33.126/11581), 'Meeting of Head Delegates, Noordwijk, 19 March 1984(contested decision, recital 19, paragraph 8; documents 33.126/11699 and 11700),and 'Meeting of Head Delegates, Paris, 7 November 1984 (contested decision,recital 19, paragraph 13; document 33.126/11752). 1343. Moreover, all the direct members of Cembureau apart from Unicem (seeparagraphs 1404 to 1417 below) participated in one or more of the Head Delegatesmeetings referred to in the contested decision. 1344. As regards, first, the meeting of 14 January 1983, it is apparent from the documententitled 'Meeting of Head Delegates, Paris, 14 January 1983 that the Belgian(Mr Pestalozzi), Netherlands (Mr Platschorre), Luxembourg (Mr Tesch), French(Mr Poitrat), Danish (Mr Stevens Larsen), German (Mr Schuhmacher), UnitedKingdom (Sir John Milne), Spanish (Mr Bertrán), Irish (Mr Quirke), Portuguese(Mr Toscano Jr), Norwegian (Mr Heiberg), Swedish (Mr Borelius) and Greek(Mr Canellopoulos) Head Delegates were present at it. Furthermore, it is clearfrom the same document that Cementir sent a member of its staff to that meetingas Head Delegate (Mr Cesareni). The participation of those various HeadDelegates has not been disputed in any way in the proceedings before the Court. 1345. As the Head Delegates represented the direct members of Cembureau (seeparagraphs 1314 to 1318 above), the Court can already find that FIC, VNC,Ciments Luxembourgeois, SFIC, Aalborg, BDZ, CMF/BCA (see paragraphs 1337to 1341 above), Oficemen, Irish Cement, ATIC, Aker, EUROC, Cementir andAGCI, all direct members, participated in the meeting. 1346. Italcementi (T-65/95) alleges that because of illness its Head Delegate, Mr Pesenti,did not take part in the meeting. It observes in that regard that the documententitled 'Meeting of Head Delegates, Paris, 14 January 1983 is undated. Thatdocument shows only that Mr Pesenti forgot to inform Cembureau that he wouldnot be present at the meeting. In support of its argument it refers to the draftrecord of the meeting of the Executive Committee of 22 December 1982 (contesteddecision, recital 19, paragraph 3; document 33.126/11565), to the draft record of theExecutive Committee meeting held on 9 November 1983 (contested decision, recital17, paragraph 5; documents 33.322/286 to 294) and to a record of a telephoneconversation between Mr Dutron and Mr d'Agostino (contested decision, recital 19,paragraph 11; document 33.126/11698). 1347. The Court finds that it was envisaged that Mr Pesenti would be present at themeeting of 14 January 1983. The document entitled 'Meeting of Head Delegates,Paris, 14 January 1983 mentions his name amongst the Head Delegates who weregoing to participate in the meeting. 1348. However, the documents adduced by Italcementi cast doubt on Mr Pesenti's actualpresence at the meeting. They show that, for reasons of ill health, Mr Pesenti wasabsent from several meetings during the period from the end of 1982 to thebeginning of 1984. Although the draft record of the meeting of the ExecutiveCommittee of 22 December 1982 mentions solely that Mr Pesenti was absent fromthat meeting, the draft record of the Executive Committee meeting of 9 November1983 explains that he was prevented from taking part in the previous meetings forreasons of ill health and also refers to his absence from that meeting. The recordof a telephone conversation between Mr Dutron and Mr d'Agostino mentions thatthe latter would attend the meeting of 19 March 1984, as Mr Pesenti would beprevented from attending for reasons of ill health. Lastly, the draft record of themeeting of the Executive Committee of 8 November 1984 (Appendix 4.11 toCembureau's application) refers to the death of Mr Pesenti. 1349. In those circumstances, the Court finds that the Commission has not establishedthat Mr Pesenti, and therefore Italcementi, took part in the meeting of 14 January1983. 1350. With regard to the meeting of Head Delegates of 19 March 1984, there is nodispute that the Head Delegates of FIC, VNC, Ciments Luxembourgeois, SFIC,Aalborg, BDZ, CMF/BCA (see paragraphs 1337 to 1341 above), Oficemen, IrishCement, ATIC, Aker, EUROC and AGCI were present at it (see also thedocument headed 'Meeting of Head Delegates, Noordwijk, 19 March 1984). 1351. Italcementi acknowledges that it sent its general manager, Mr d'Agostino, asdelegate to that meeting (application, p. 45). Even though, as a replacement for MrPesenti (see paragraph 1348 above), he was not a Cembureau Head Delegate, herepresented Italcementi, so that it was bound by his acts. 1352. Lastly, as regards the meeting of Head Delegates of 7 November 1984 the Courtmust also find that, as has not been disputed, the Head Delegates of FIC, CimentsLuxembourgeois, SFIC, Aalborg, BDZ, CMF/BCA (see paragraphs 1337 to 1341above), Irish Cement, ATIC, EUROC, Cementir and AGCI (see also the documentheaded 'Meeting of Head Delegates, Paris, 7 November 1984) and thus thosedirect members of Cembureau themselves were present at that meeting. 1353. It follows from the whole of the foregoing that Cembureau, FIC, VNC, CimentsLuxembourgeois, SFIC, Aalborg, BDZ, BCA, Oficemen, Irish Cement, ATIC,Italcementi, Aker, EUROC, Cementir and AGCI all participated in one or moreof the meetings of Head Delegates at which a concurrence of wills emerged or wasconfirmed on the principle of non-transhipment to home markets and theregulation of cement transfers from one country to another. By virtue of theirpresence they subscribed to or at least gave the impression to the other participantsthat they subscribed to the subject-matter of the Cembureau agreement that wasconcluded and subsequently confirmed at those meetings (Hercules Chemicals v Commission, cited in paragraph 140 above, paragraph 232, and Tréfileurope vCommission, cited in paragraph 958 above, paragraph 85). Unless they openlydistanced themselves, those applicants must therefore be considered to haveparticipated in the Cembureau agreement to which Article 1 of the contesteddecision refers (Hüls v Commission, cited in paragraph 155 above, paragraph 155;Montecatini v Commission, cited in paragraph 270 above, paragraph 181; HerculesChemicals v Commission, cited in paragraph 140 above, paragraph 232, Case T-142/89 Boël v Commission [1995] ECR II-867, paragraph 60; and Mayr-Melnhof vCommission, cited in paragraph 897 above, paragraph 135). The duration of theirparticipation in the Cembureau agreement will be examined below. 1.2.2. The parties' claims to have distanced themselves and other circumstancesrelied on in order to contest their participation in the Cembureau agreement 1354. FIC (T-30/95) and Ciments Luxembourgeois (T-34/95) state that their accession toan agreement contrary to Article 85(1) of the Treaty cannot be established byshowing that they did not openly distance themselves from it. 1355. That argument is irrelevant. The participation of the direct members of Cembureauin the Cembureau agreement was not established by showing that they did notopenly distance themselves from it. It was established on the basis of theirmembership of Cembureau and their participation in one or more meetings of theHead Delegates at which the Cembureau agreement was concluded andsubsequently confirmed (see paragraph 1302 above). 1356. FIC, VNC (T-32/95), Ciments Luxembourgeois, SFIC (T-36/95), Aalborg (T-44/95),BDZ (T-48/95), BCA (T-54/95), Oficemen (T-59/95), Irish Cement (T-60/95), ATIC(T-63/95), Italcementi (T-65/95), Cementir (T-87/95) and AGCI (T-103/95) claimthat they openly distanced themselves or that there are other special circumstanceswhich show that they did not participate in the Cembureau agreement. 1357. First, FIC, Aalborg, BDZ, BCA and AGCI claim that they were unaware of theCembureau agreement until the Commission initiated a proceeding. They could nottherefore have participated in the infringement referred to in Article 1 of thecontested decision. 1358. FIC also states that it was informed only of the subject-matter of the meeting of7 November 1984 by a note of its Chairman, Mr Van Hove, of 12 November 1984(contested decision, recital 44, paragraph 3; documents 33.126/2063 to 2069 and2436 to 2447) which expressly stated that no internal EC problem had been dealtwith or even raised during that meeting (see paragraph 1029 et seq. above).Contrary to the Commission's claims, that is not inconsistent with the minutes ofthe FIC administrative board meeting No 88 of 23 February 1983 (contesteddecision, recital 44, paragraph 3; documents 33.126/2035 to 2043; the contested decision wrongly refers to 23 March 1983) which merely refers to Cembureau in thecontext of the FIC meeting of 11 January 1983 in preparation for the HeadDelegates meeting of 14 January 1983. Lastly, FIC disputes the Commission'sassertion that 'FIC's minutes do not always reproduce the real content of thediscussions held within the administrative board (contested decision, recital 44,paragraph 3). 1359. BCA adds that its alleged awareness of the Cembureau agreement is based on alegal fiction. Even if CMF had been aware of the agreement, which it disputes,BCA had never been informed of it prior to the initiation of the administrativeprocedure. 1360. Those arguments must be rejected. It is common ground that the Belgian, Danish,German, United Kingdom and Greek Head Delegates were present at the threeHead Delegates meetings at which the Cembureau agreement was concluded andsubsequently confirmed (see paragraphs 1344, 1345, 1350 and 1352 above). Since,on those occasions, each of those Head Delegates represented and bound a directmember of Cembureau (see paragraphs 1314 to 1318 above), the awareness whichthe Belgian, Danish, German, United Kingdom and Greek Head Delegates had ofthe Cembureau agreement must be ascribed directly to FIC, Aalborg, BDZ, BCA,as successor to CMF (see paragraphs 1337 to 1341 above), and AGCI. 1361. For the sake of completeness, the Court points out that the account given by theChairman of FIC, Mr Van Hove, of 12 November 1984 to FIC administrative boarddoes not enable any conclusion to be drawn as to the nature of the informationwhich might have been communicated to FIC following the meetings of 14 January1983 and 19 March 1984. Lastly, the fact that FIC challenges the Commission'sassertion that the minutes of FIC did not always reproduce the real content ofdiscussions within the administrative board is irrelevant. That factor is not takeninto account in the contested decision in order to show that FIC participated in theCembureau agreement. It was held to have participated on the grounds that it wasa member of Cembureau and had participated in the meetings of the HeadDelegates at which the Cembureau agreement was concluded and subsequentlyconfirmed (contested decision, recital 19, paragraphs 4, 8 and 13, recital 45,paragraphs 1, 2 and 10, and recital 65, paragraph 3, first subparagraph). 1362. Second, FIC alleges that if the view had to be taken that Cembureau and itsmembers had concluded an agreement restricting competition, a number of actionsby representatives of the Belgian cement industry should be regarded as evidencethat they had openly distanced themselves from that agreement. By way ofexamples, it refers to the memorandum drawn up following the meeting which itorganised on 11 January 1983 in preparation for the Head Delegates meeting of14 January 1983 (Appendix 14 to its application); the documents referred to inparagraph 18 of the minutes of its administrative board meeting No 88 of 23February 1983 (Appendices 15, 16 and 17 to its application); the statement of the Belgian Head Delegate at the Head Delegates meeting of 19 March 1984(contested decision, recital 19, paragraph 10; documents 33.126/11733 to 11737)and the minutes of its administrative board meeting No 112 of 1 September 1987(Appendix 20 to its application). 1363. However, none of those documents shows that FIC openly distanced itself from thecontent of the three meetings of Head Delegates to which the contested decisionrefers and in which it participated. 1364. As regards the memorandum drawn up following the meeting organised by FIC on11 January 1983 in order to prepare for the Head Delegates meeting of 14 January1983, the Court points out that this document 'sent to Mr Pestalozzi, FICspokesman cc Mr J. Van Hove, Chairman of CLC is headed 'Cembureau meetingof Head Delegates of 14 January 1983 in Paris in order to examine the factorsinfluencing the cement markets. Note of the preparatory meeting of 11 January1983 for FIC. The fact that that document does not refer to a principle that thereshould be no transhipment to home markets does not preclude that an agreementon that principle was adopted some days later in the course of the meeting of 14January 1983. Furthermore, the memorandum in question does not containanything to show that Mr Pestalozzi, the Belgian Head Delegate, and Mr VanHove, Chairman of FIC, who participated in that meeting (contested decision,recital 19, paragraph 4; document 33.126/11581) intended to distance themselvesfrom what was agreed at that meeting. 1365. Similarly, none of the documents mentioned in paragraph 18 of the minutes of theFIC administrative board meeting No 88 of 23 February 1983 refer to the fact thatFIC had openly distanced itself in any way from the content of the Cembureauagreement. The Court points out that a failure to mention the Cembureauagreement in a document, which is not sufficient to shed a different light on thedocuments establishing that that agreement was concluded at the meeting of 14January 1983 (see paragraph 1116 above), cannot prove that the author of thatdocument openly distanced itself from the agreement either. 1366. The statement of the Belgian Head Delegate at the Head Delegates meeting of 19March 1984 is reproduced as follows in the notes concerning that meeting:'Belgium: Attention is drawn to the fact that although in fact some exports ofcement from Germany to the Netherlands are structural and traditional in naturethere have been for several years additional random exports to the Netherlandsand Belgium. Since previous discussions between Head Delegates have not alteredthis state of affairs, it is considered pointless to continue the discussion withinCembureau. The fact that the Belgian Head Delegate thought it necessary toinform the other participants of his concerns regarding those 'random additionalexports clearly shows his intention to draw the attention of the members ofCembureau to a 'hotspot endangering the principle that there should be notranshipment to home markets, which had been adopted at the meeting of Head Delegates of 14 January 1983. Far from constituting an expression of distancingfrom the Cembureau agreement, the Belgian Head Delegate's statement istherefore fully consistent with compliance with that agreement. The allegedpointlessness of a discussion by the Head Delegates relates only to the problem of'random exports to Belgium and the Netherlands, not to the other 'hotspotsidentified in the memorandum to the Chairman for the meeting of Head Delegatesof 19 March 1984 (contested decision, recital 19, paragraph 9; documents33.126/11728 and 11729) and in the notes concerning that meeting (contesteddecision, recital 19, paragraph 10; documents 33.126/11733 to 11737). Lastly, byvirtue of its presence at the meetings of Head Delegates on 19 March and 7November 1984, at which the Cembureau agreement was confirmed, FIC in anyevent gave the other participants the impression that it continued to subscribe tothe Cembureau agreement. 1367. Lastly, the minutes of the FIC administrative board meeting No 112 of 1September 1987 contains some observations on the role which Cembureau shouldplay. 1368. The Court points out that at that time discussions were taking place concerning therole and future of Cembureau (see paragraphs 1194 and 1195 above). The minutesNo 112 of 1 September 1987 refer to FIC's position in that debate. However, theyare unrelated to the discussions which took place at the meetings of the HeadDelegates to which the contested decision refers and do not show that FIC openlydistanced itself from what was agreed at those meetings. 1369. FIC also states that the note drawn up following the FIC meeting of 11 January1983 in preparation for the Head Delegates meeting of 14 January 1983 andvarious other documents illustrate the constant concern of the Belgian cementindustry to act within the Community competition rules, in cooperation with theCommission's departments. 1370. However, the references to Community competition rules in the documents onwhich FIC relies are not of such a nature as to shed a different light on the bodyof specific documentary evidence showing, first, that at the meeting of 14 January1983 the Head Delegates agreed on the principle of non-transhipment to homemarkets and the regulation of sales from one country to another (see paragraphs979 to 985 above) and that, second, Mr Pestalozzi, Belgian Head Delegate, and MrVan Hove, Chairman of FIC, participated in that meeting without openly distancingthemselves from what was agreed at it. Thus, far from exonerating FIC, thedocuments on which it relies show the deliberate nature of the infringementcommitted. 1371. Lastly, FIC alleges that it never ratified ex post facto either the agreement allegedlyconcluded at the meeting of 14 January 1983 or its confirmation at the meetingsof 19 March and 7 November 1984. 1372. That argument is irrelevant. There is no assertion in the contested decision thatFIC ratified ex post facto the agreement concluded on 14 January 1983 andsubsequently confirmed on 19 March 1984 and 7 November 1984. It is alleged tohave concluded that agreement and to have confirmed it on those dates (contesteddecision, recital 45, paragraphs 1 and 2). FIC has never disputed that the BelgianHead Delegate was present at the three meetings in question. As the Belgian HeadDelegate represented and bound the applicant at those meetings (see paragraphs1314 to 1318 above) and as the specific documentary evidence referred to inrecitals 18, 19 and 45 of the contested decision shows the existence of theCembureau agreement (see paragraph 1095 above), the participation of FIC in thatagreement is itself established. 1373. Third, VNC, Ciments Luxembourgeois, BCA, Irish Cement, Italcementi, Cementirand AGCI submit that they had no interest in participating in the Cembureauagreement, that they played a modest role on the cement market and that they hadspecific reasons for participating in the Head Delegates meetings. 1374. However, the facts and circumstances on which the applicants concerned rely arenot of such a nature as to shed a different light on the specific documentaryevidence referred to in recitals 18, 19 and 45 of the contested decision whichestablish the existence of the Cembureau agreement (see paragraph 1095 above).As it has been established that Ciments Luxembourgeois, CMF/BCA (seeparagraphs 1337 to 1341 above), Irish Cement and AGCI participated in the threemeetings in question, that the VNC participated in those of 14 January 1983 and19 March 1984, that Cementir participated in those of 14 January 1983 and 7November 1984 and that Italcementi participated in the meeting of 19 March 1984,those applicants, who do not even assert that they openly distanced themselvesfrom what was agreed at those meetings, subscribed, by their very presence at thosemeetings, to the Cembureau agreement or at least gave the impression to the otherparticipants that they subscribed to it. Their participation in the Cembureauagreement is therefore established. 1375. VNC and Cementir argue that their absence from one of the three meetings ofHead Delegates, that of 7 November 1984 and that of 19 March 1984 respectively,shows that they did not participate in the infringement. 1376. That argument must be rejected. The mere presence of the VNC and of Cementirat one of the Head Delegates meetings at which the Cembureau agreement wasconcluded or confirmed suffices for a finding that they participated in theconcurrence of wills which was reached. 1377. Fourth, in contesting that it participated in the Cembureau agreement, CimentsLuxembourgeois asserts that it was not identified in the contested decision as oneof the parties to the bilateral contacts which were discussed at the meetings. Itstates that, unlike the SO (point 13), the contested decision does not refer to quantitative restrictions on cement deliveries from Luxembourg to Belgium.Italcementi considers that the contested decision is contradictory in that it finds thatit participated in the Cembureau agreement but does not complain that itparticipated in the bilateral agreements and concerted practices referred to inArticle 3 of the contested decision which are the only measures implementing thatagreement. Likewise, AGCI considers that the memorandum to the Chairman forthe meeting of the Head Delegates of 19 March 1984 must be related to theinfringements referred to in Article 3 of the contested decision, in which neitherAGCI nor its members participated. 1378. It must, however, be pointed out that in the contested decision the participation ofCiments Luxembourgeois, Italcementi and AGCI in the Cembureau agreement wasestablished on the basis of their capacity as direct members of Cembureau andtheir participation in one or more of the Head Delegates meetings in question(contested decision, recital 19, paragraphs 4, 8 and 13, recital 45, paragraphs 1, 2and 10, and recital 65, paragraph 3, first subparagraph). The fact that in thecontested decision those applicants were found to have participated in theCembureau agreement even though they did not participate in the infringementsreferred to in Article 3 of the contested decision does not therefore give rise to acontradiction. 1379. As it has been established that Ciments Luxembourgeois and AGCI participatedin the three meetings in question and that Italcementi participated in that of 19March 1984, those applicants, which do not even allege that they openly distancedthemselves from what was agreed at those meetings, subscribed, by their verypresence in those meetings, to the content of the Cembureau agreement or at leastgave the impression to the other participants that they subscribed to it. Theirparticipation in the Cembureau agreement is therefore established, even thoughthey did not participate in bilateral contacts or agreements. 1380. Fifth, SFIC submits that its Chairman participated in the Cembureau HeadDelegates meetings in the exercise of the functions provided for in its statutes asan association, functions which, until the contrary is proved, must be presumed tohave been exercised lawfully. The various items of evidence adduced by theCommission in the contested decision are not of such a nature as to reverse thatpresumption of lawfulness. SFIC therefore complains that the Commission did notsatisfy that test in submitting that its mere participation in the meetings meant thatit had acceded to the Cembureau agreement. 1381. It is not disputed that SFIC participated in the three Head Delegates meetings on14 January 1983, 19 March and 7 November 1984 (see paragraphs 1344, 1345, 1350and 1352 above). By its presence at those meetings SFIC, which does not evenallege that it openly distanced itself from what was agreed at the meetings inquestion, subscribed to the content of the Cembureau agreement or at least gavethe impression to the other participants that it subscribed to it. In those circumstances, the Commission was entitled to find in the contested decision thatSFIC had participated in the Cembureau agreement. 1382. SFIC also stresses that a distinction should be made between trade betweenmembers of Cembureau and intra-Community trade. It claims that, given the factthat half of the participants in the Head Delegates meetings of Cembureau camefrom countries outside the Community, the Commission could not use evidencerelating to countries such as Spain and Portugal in order to call in question theconduct of undertakings established in the Member States of the Community. 1383. That argument is irrelevant inasmuch as SFIC is an association of undertakings. Inany event, SFIC's participation in the Cembureau agreement was established on thebasis of its capacity as a direct member of Cembureau and its participation in theHead Delegates meetings at which the Cembureau agreement was concluded andsubsequently confirmed (contested decision, recital 19, paragraphs 4, 8 and 13,recital 45, paragraphs 1, 2 and 10, and recital 65, paragraph 3, first subparagraph).The Commission did not therefore take into consideration factors relating tocountries that were not members of the Community. 1384. Sixth, Aalborg alleges that it cannot be considered to be a party to the Cembureauagreement, since at the meeting of 19 March 1984 the discussions were in French,which its representative, Mr Stevens Larsen, could not understand. Moreover, hedid not make any statement during the meeting and was not invited to give hisviews on any decisions adopted, whether in the form of a vote, written acceptance,approval of the minutes or a similar document. At the hearing Aalborg alsosubmitted that discussions at the meeting of 14 January 1983 were also in French. 1385. That argument must be rejected. It is not credible that the Danish Head Delegatetravelled on two occasions to be present at meetings held solely in a languagewhich he did not understand. Moreover, as the Commission pointed out at thehearing, Aalborg's argument is contradicted by document 33.126/11582 which makesit clear that simultaneous interpretation from French to English and vice versa wasplanned for the meeting of 14 January 1983. As to the argument based onAalborg's alleged passive conduct, it has been established that it participated in thethree meetings of 14 January 1983, 19 March and 7 November 1984 (seeparagraphs 1344, 1345, 1350 and 1352 above). By its very presence at thosemeetings, Aalborg, which does not even allege that it openly distanced itself fromwhat was agreed at those meetings, subscribed to the content of the Cembureauagreement or at least gave the impression to the other participants that itsubscribed to it. In those circumstances, the Commission was entitled to find in thecontested decision that Aalborg participated in the Cembureau agreement. 1386. Seventh, Oficemen contends that even if the Cembureau agreement was concludedthere is conclusive evidence to show that it never acceded to it. It refers to theconcerns expressed by the Irish producers (draft introductory statement by the Chairman for the meeting of Head Delegates of 14 January 1983 (contesteddecision, recital 19, paragraph 5; documents 33.126/11583 to 11585)) and theUnited Kingdom producers (internal memorandum of Blue Circle dated 1December 1983 (contested decision, recital 18, paragraph 2; documents33.126/11332 to 11334)) in regard to imports from Spain and to the anti-dumpingcomplaints sent in 1983 and in 1985 by the CLC to the Commission regarding thoseimports. Finally, it states that the memorandum to the Chairman for the HeadDelegates meeting of 19 March 1984 explains that the exports from Spain toIreland and the United Kingdom were still a 'hotspot at that time. 1387. The Court points out that the various matters adduced by Oficemen, whichillustrate the conduct of its members rather than its own conduct, cannot hide thefact that it actually participated in the meetings of 14 January 1983 and 19 March1984 (see paragraphs 1344, 1345 and 1350 above). By its presence at thosemeetings, Oficemen, which does not even allege that it openly distanced itself fromwhat was agreed at the meetings, subscribed continuously to the content of theCembureau agreement or, at least, gave the impression to the other participantsthat it subscribed to it. Its participation in the Cembureau agreements at the timeof the Head Delegates meetings is therefore established. However, in the contesteddecision, Oficemen's participation in the Cembureau agreement was considered toconstitute an infringement only as from 1 January 1986 (see paragraph 1303above). It will therefore be necessary to examine below whether Oficemen was stillactually participating on 1 January 1986 (see paragraphs 4226 to 4232 below). 1388. Eighth, Aalborg, Irish Cement and Italcementi allege that their behaviour provesthat they did not accede to the Cembureau agreement. Aalborg asserts that itorganised its sales, in particular its exports, according to independent commercialconsiderations. Irish Cement claims that the increase in its exports to the UnitedKingdom during the 1980s shows that it did not accede to any agreement that thereshould be no transhipment to home markets. Italcementi claims that theCommission has not proved that its behaviour was influenced by the informationexchanged at the meetings of Head Delegates referred to in the contested decision. 1389. Those arguments must be rejected. It is established that Aalborg and Irish Cementparticipated in the three meetings of Head Delegates in question (see paragraphs1344, 1345, 1350 and 1352 above) and that Italcementi participated in the meetingof 19 March 1984 (see paragraph 1351 above). By their presence at those meetings,Aalborg, Irish Cement and Italcementi, which do not even claim that they distancedthemselves openly from what was agreed at the meetings, subscribed to the contentof the Cembureau agreement or at least gave the impression to the otherparticipants that they subscribed to it. It is settled law that the fact that anundertaking does not abide by the outcome of meetings which have a manifestlyanti-competitive purpose is not such as to relieve it of full responsibility for the factthat it participated in the agreement or concerted practice, if it has not openlydistanced itself from what was agreed at the meetings (Mayr-Melnhof v Commission, cited in paragraph 897 above, paragraph 135, and Tréfileurope v Commission, citedin paragraph 958 above, paragraph 85). Even assuming that the market behaviourof the applicants in question was not in conformity with the agreed 'rules of thegame, that does not affect their liability as participants in the Cembureauagreement. 1390. Ninth, Aalborg, BDZ and Cementir contend that they were not referred to in thedocuments establishing the existence of the Cembureau agreement. In thosecircumstances, the Commission was not entitled to find in the contested decisionthat they had participated in that agreement. 1391. That argument must be rejected. The fact that the applicants are not referred toby name in the documents relating to the Cembureau agreement is not of such anature as to shed a different light on the specific documentary evidence referredto in recitals 18, 19 and 45 of the contested decision, which shows that theparticipants in the meeting of 14 January 1983, the Head Delegates designated byAalborg, BDZ and Cementir amongst them, concluded the Cembureau agreement(see paragraph 1095 above) but does not show that they openly distancedthemselves from what was agreed at that meeting. 1392. Tenth, BDZ states that it has 37 members and that there is no evidence to showthat they were informed by it of the alleged Cembureau agreement. Likewise,Oficemen and ATIC submit that they never communicated to or imposed on theirmembers any rule, indication or instruction in pursuance of the alleged Cembureauagreement. 1393. That circumstance, even if it were well founded, could not hide the fact that BDZ,Oficemen and ATIC participated in the Head Delegates meeting of 14 January1983 and, accordingly, that they participated directly in the Cembureau agreement(see paragraphs 1095, 1344 and 1345 above). 1394. Lastly, AGCI complains that the Commission has not proved that in participatingin the Head Delegates meetings in question AGCI had given the other participantsthe impression that it shared their possibly unlawful objectives. It refers to aninternal memorandum of Blue Circle of 24 October 1986 from Mr Horner(document 33.126/11132) which, explaining that the Greek producers were notbound by the same rules of trading as the other European producers, clearly showsthat they had always been regarded as undesirable third parties because they didnot abide by the large European producers' rules. 1395. The Court points out that the infringement referred to in Article 1 of the contesteddecision is alleged against both AGCI and the Greek producers Heracles, Titan andHalkis. In those circumstances, even if, as the applicant alleges, the Blue Circleinternal memorandum of 24 October 1986 from Mr Horner indicated that theGreek producers had distanced themselves from the content of the Cembureau agreement, such a circumstance cannot be taken into account in assessing whetherAGCI in fact participated in the infringement in question. It is common ground thatthe AGCI participated in the three Head Delegates meetings of 14 January 1983,19 March and 7 November 1984 (see paragraphs 1344, 1345, 1350 and 1352 above).By its presence at those meetings, it subscribed to the content of the Cembureauagreement or at least gave the impression to the other participants that itsubscribed and was continuing to subscribe to that agreement. The participation ofAGCI in the Cembureau agreement is therefore established. The participation ofHeracles, Titan and Halkis in the Cembureau agreement will be examined atparagraphs 4074 to 4077, 4096 to 4101 and 4210 to 4213 below. 1.2.3. Alleged inadmissibility of certain documents against direct members ofCembureau 1396. Certain applicants who are direct members of Cembureau, namely VNC (T-32/95),BDZ (T-48/95), Cementir (T-87/95) and AGCI (T-103/95), contend that somedocuments referred to in recitals 18 and 19 of the contested decision cannot beused to show that they participated in the Cembureau agreement, because thosedocuments do not emanate from them and they had no knowledge of them beforethe initiation of the administrative procedure (see paragraphs 1050 to 1053 above).At the hearing, Aalborg (T-44/95) and Irish Cement (T-60/95) submitted a similarargument. 1397. That argument must be rejected and it is not necessary to rule on its admissibilityin so far as it has been raised by Aalborg and Irish Cement. The fact that theapplicants concerned were not party to drawing up one or other document or thatthey had no knowledge of it prior to the initiation of the administrative procedureis not such as to render those documents inadmissible against them as evidence ofthe infringement with which they are charged (see to that effect Case T-157/94Empresa Nacional Siderúrgica v Commission, cited in paragraph 1053 above,paragraph 312). The Court points out that the body of evidence referred to inrecitals 18, 19 and 45 of the contested decision proves that the Commission rightlyconcluded that the Cembureau agreement existed (see paragraph 1095 above). Itis common ground that all the applicants referred to in the preceding paragraphparticipated in the meeting of 14 January 1983, in at least one of the two meetingsof 19 March and 7 November 1984, and did not openly distance themselves fromwhat was agreed at those meetings. Their participation in the Cembureauagreement is therefore established. 1398. At the hearing Irish Cement claimed that the internal memoranda of Blue Circle(contested decision, recital 18, paragraphs 2 and 3; documents 33.126/11332 to11337) and the statement of Mr Kalogeropoulos of 25 June 1986 (contesteddecision, recital 18, paragraph 5; documents 33.126/19875 to 19877) were inadmissible because they had not had an opportunity to cross-examine the authorsof those documents. 1399. That argument, raised for the first time at the hearing, must be rejected and thereis no need to rule on its admissibility. In the present case, the administrativeprocedure was governed by the provisions of Regulations Nos 17 and 99/63, whichdo not provide for any form of cross-examination. In any event, Irish Cement'sargument does not pertain to the documents referred to in recital 19 of thecontested decision relating to the meetings of the Head Delegates, which show thatthe Cembureau agreement was concluded at those meetings and that Irish Cementparticipated in them (see paragraphs 921 to 1095, 1344, 1345, 1350 and 1352above). 1.2.4. Conclusions regarding the participation of Cembureau and its directmembers, other than Unicem, in the infringement referred to in Article 1 of thecontested decision 1400. It is established that Cembureau, FIC, VNC, Ciments Luxembourgeois, SFIC,Aalborg, BDZ, BCA, Oficemen, Irish Cement, ATIC, Aker, EUROC, Cementirand AGCI participated in the Head Delegates meeting of 14 January 1983 (seeparagraphs 1344 and 1345 above). In the light of the evidence adduced in recitals18, 19 and 45 of the contested decision, which show that the agreement wasconcluded in the course of that meeting, and with no evidence to show that any ofthem openly distanced itself from what was agreed in it, the Commission hastherefore established that they participated in the Cembureau agreement as fromthat date. 1401. As regards Cembureau, FIC, VNC, Ciments Luxembourgeois, SFIC, Aalborg, BDZ,BCA, Irish Cement, Cementir and AGCI, the Commission could therefore lawfullyfind that they participated in the infringement referred to in Article 1 of thecontested decision as from 14 January 1983. The Court will examine below whethertheir participation in that infringement was continuous. 1402. As regards Oficemen and ATIC, on the one hand, and EUROC, on the other,which were direct members established at the material time outside theCommunity, the Commission held them liable for the infringement referred to inArticle 1 of the contested decision as from 1 January 1986 and 9 June 1986respectively. The Commission found that Aker, which is still established outside theCommunity, participated in the infringement referred to in Article 1 of thecontested decision as from 9 June 1986. The Commission explains that 'in the caseof Oficemen and ATIC ... [it] could deem their accession to the agreement to havehad effects within the Community as from the date on which they acceded to theagreement; however, it deems the infringement to have occurred as from 1 January1986, since the participation of the Spanish and Portuguese undertakings did not, according to the Commission's information, produce any significant effects withinthe Community until after the accession of their countries to the Community(contested decision, recital 45, paragraph 11). As to Aker and EUROC, theCommission states that it 'has no evidence that their participation in theCembureau agreement or principle had any effect within the Community before [9June 1986] (contested decision, recital 65, paragraph 4, fourth indent). Althoughit has been proved that those four parties participated in the Cembureauagreement, it will therefore be necessary to examine whether their participation wascontinuous and constituted an infringement as from the two dates found in thecontested decision (see paragraphs 4226 to 4242 below). 1403. Finally, as regards Italcementi, the Court has found that its participation in themeeting of 19 March 1984 shows that it participated in the Cembureau agreementand, accordingly, in the infringement referred to in Article 1 of the contesteddecision (see paragraph 1351 below). Italcementi's participation in thatinfringement is therefore established in any event as from 19 March 1984. TheCourt will examine below whether the Commission was entitled, on the basis ofparticipation in one or other measure implementing the Cembureau agreement, tofix 14 January 1983 as the starting date of Italcementi's participation in theinfringement (see paragraphs 4224 and 4225 below). 1.3. Situation of Unicem, a direct member of Cembureau which did not participatein any of the Head Delegates meetings 1404. Unicem states that it did not participate in any of the Head Delegates meetings towhich the contested decision relates. It claims, moreover, that it was never informedthat those meetings were being held. It claims that its participation in theinfringement referred to in Article 1 of the contested decision has not thereforebeen established. 1405. In the contested decision (recital 44, paragraph 4) the Commission states asfollows: 'The fact that members who were entitled to attend the meetings of thebodies did not do so does not mean that the decisions and/or agreements reachedwithin such bodies do not apply to or do not have to be applied by such absentmembers. As a general rule, belonging to an association means accepting its rulesand conduct and implies awareness that the association and/or organisation actsthrough the direct or indirect contribution of each member and relies on eachmember's consent and support. Unless dissent is expressed, this applies not only tothe activities provided for in the articles of the association, but also to its de factoactivities. It observes moreover (contested decision, recital 45, paragraph 13, infine): 'The fact that [Unicem] did not attend meetings does not mean that [it] wasnot party to the agreement on non-transhipment to home markets and on theregulation of sales from one country to another, first because other Italian HeadDelegates were present and represented their country, secondly because the association acts through the contribution of all members present and absent, andlastly because, at the time when Unicem was, with the other Italian producers,suffering the effects of Greek imports, it received the support of the otherCembureau members (see recital 27), thus benefitting from the solidarity inherentin the home market rule. 1406. There is no need to rule on whether Unicem was informed of the holding of theHead Delegates meetings, it being common ground that neither Mr Nasi, HeadDelegate designated by Unicem to represent it in Cembureau (Unicem's reply of5 June 1998 to a written question from the Court), nor any other member ofUnicem's staff participated in the Head Delegates meetings of 14 January 1983, 19March and 7 November 1984. That fact is apparent from the lists of personsattending them (contested decision, recital 19, paragraphs 4, 8 and 13; documents33.126/11581, 11699, 11700 and 11752). Moreover, it was acknowledged by theCommission in the contested decision (recital 45, paragraph 13) and in theproceedings before the Court (defence in Case T-50/95, paragraph 49). 1407. It must therefore be examined whether, in the absence of its Head Delegate,Unicem was represented at the three meetings by another Italian Head Delegate,as the Commission alleges. 1408. The Commission contends that the function of Head Delegate is comparable tothat of government representatives in international bodies. In order to show thatthe Italian Head Delegate present represented the three Italian members ofCembureau, it refers to the following record of a telephone conversation betweenMr Dutron and Mr d'Agostino (contested decision, recital 19, paragraph 11;document 33.126/11698): 'Mr G. Pesenti, who has the flu, will not be at Noordwijkbut Mr d'Agostino will represent Italy at the meeting of Head Delegates. It alsorefers to the reference to the Member State of origin, rather than the undertaking,of the Head Delegate in the document entitled 'Meeting of Head Delegates, Paris,14 January 1983 (contested decision, recital 19, paragraph 4; document33.126/11581). 1409. The Court points out that at the time of the meetings of Head Delegates in 1983and 1984 Cembureau had three Italian members, namely Unicem, Italcementi andCementir, which each appointed their own Head Delegate. The fact that the threeItalian direct members of Cembureau each had a Head Delegate in itselfcontradicts the Commission's assertion that a single Italian Head Delegate hadpower to represent all three of them. 1410. The provision made for the presence of two Italian Head Delegates at the meetingof 14 January 1983, namely Mr Pesenti of Italcementi and Mr Cesareni ofCementir, which is apparent from the document headed 'Meeting of HeadDelegates, Paris, 14 January 1983, is also at variance with the existence of a mandate from the three Italian members to the one Italian Head Delegate who waspresent. 1411. Lastly, if, as the Commission alleges, each of the three Italian Head Delegatesrepresented all the Italian members of Cembureau, Mr Pesenti of Italcementi, whowas prevented from attending the meeting on 19 March 1984, would have arrangedto have been replaced by the Cementir or Unicem Head Delegate rather than byMr d'Agostino, an employee of Italcementi. 1412. It must therefore be accepted that Unicem was not represented at the meetings of14 January 1983, 19 March and 7 November 1984. Consequently, Unicem did notparticipate directly in the concurrence of wills which emerged at those meetings. 1413. Even if, as the Commission states, an association acts through the contribution ofall members present and absent and belonging to an association means acceptingits rules and conduct, Unicem can be found to have participated in theinfringement referred to in Article 1 of the contested decision only if it isestablished that it consented, explicitly or implicitly, to the content of theCembureau agreement. Its mere capacity as member of Cembureau cannot sufficeto render Unicem liable for the manifestly unlawful decisions adopted by the HeadDelegates in its absence. The Court points out in that regard that the Commissionhas not refuted Cembureau's assertion that its articles do not confer any power onthe Head Delegates as a body (contested decision, recital 15, paragraph 4). 1414. Since there is no documentary evidence of Unicem's consent in regard to thediscussions which took place at the three meetings, the Court must examinewhether its conduct shows such consent. 1415. On that point, the Commission states that Unicem implemented the Cembureauagreement in the framework of the ETF (contested decision, recital 45, paragraph13; Article 4, recitals 1, 2 and 3(a) and (b)) and by participating in the activities ofthe ECEC (contested decision, recital 58 and Article 5). 1416. Thus, for the purpose of proving participation in the infringement referred to inArticle 1 of the contested decision, Unicem's situation is comparable to that of anindirect member of Cembureau. As in the case of an indirect member, Unicem canbe found to have participated in the Cembureau agreement only if it is proved thatit participated in a measure implementing that agreement (see paragraphs 1307 to1311 above). 1417. The Court will examine below whether Unicem's alleged participation in theactivities referred to in Articles 4 and 5 of the contested decision can be regardedas implementation of the Cembureau agreement (see paragraphs 4102 to 4107below). The Court will therefore reserve its examination of the question whether Unicem participated in the infringement referred to in Article 1 of the contesteddecision. 2. Infringement of the principle of equal treatment 1418. VNC (T-32/95) considers that the contested decision discriminates against itbecause not all the members of Cembureau were the subject of a finding ofinfringement in the contested decision. By way of example, it refers to the membersof Cembureau established in a non-member country of the Community. Similarly,ATIC (T-63/95) alleges that consistent application of the principle set out in recital44, paragraph 4, of the contested decision should have led the Commission to findthat all the direct members of Cembureau were liable for the infringementscommitted within the framework of that association. 1419. The Court points out that the only direct members of Cembureau not covered bythe contested decision, namely the Austrian, Finnish, Icelandic, Swiss and Turkishmembers, were all established in a non-member country of the Community at thetime when the contested decision was adopted. Moreover, the contested decisiondoes not contain any evidence that those direct members participated in a measureimplementing the Cembureau agreement (see paragraph 1303 above). The situationof the direct members of Cembureau which are not covered by the contesteddecision therefore differs from that of VNC and ATIC, which, at the date taken asthe starting date of their participation in the infringement, were established in theCommunity and had participated in one or more measures implementing theCembureau agreement. The argument alleging infringement of the principle ofequal treatment must therefore be rejected. 1420. In any event, even if it were found that some direct members of Cembureau notcovered by the contested decision were in a similar situation to that of theapplicants concerned, such a finding could not constitute a ground for setting asidethe finding of an infringement by VNC and ATIC, provided it was properlyestablished (Woodpulp II, cited in paragraph 106 above, paragraph 146). 1421. Aalborg (T-44/95) also alleges that, pursuant to the principle of equal treatment theCommission should have verified whether its participation in the Cembureauagreement had had effects in the Community, as it had done in the case of theSpanish and Portuguese undertakings. 1422. That argument must be rejected for the reasons set out in paragraph 1420 above. 3. Infringement of Article 190 of the Treaty 1423. SFIC (T-36/95) complains that the Commission did not adequately explain thereasons why Article 85 was applicable to it. The Commission combined variousconcepts without ever explaining how, on the basis of Community case-law, anassociation could be deemed to have undertaken to conclude and perform anagreement such as the Cembureau agreement. As the infringement which theassociations of undertakings are held to have committed is based on theunauthorised conduct of persons exercising functions within those associations, thecase-law requires the Commission to set out specific reasons in its decision becauseof the novelty of that question. 1424. That argument must be rejected. In recital 44 (paragraph 1) of the contesteddecision the Commission starts its legal assessment with the question of theapplicability of Article 85 of the Treaty to associations of undertakings, stating that,since this problem would recur a number of times throughout its account, it wouldbe useful to establish at the outset the essential principles that apply to situationsin which associations participate in behaviour prohibited under Article 85 of theTreaty. In the same recital (paragraphs 2 and 3) it analyses the Community case-law applicable to that question and refutes the arguments submitted in that regardby a number of associations, including SFIC, during the administrative procedure.Finally, the contested decision sets out the reasons why the associations ofundertakings are held liable for the unlawful actions of persons exercising functionsin those associations (contested decision, recital 44, paragraph 3, secondsubparagraph, and paragraph 4, second subparagraph). 1425. Aalborg (T-44/95) complains that in its legal assessment the Commission did notexplain the reasons for the allegedly novel theory that liability attaches to a failureto express dissent, a theory on which the Commission relies in recital 44 of thecontested decision. 1426. However, since the Commission established that Aalborg was present at themeetings of 14 January 1983, 19 March and 7 November 1984 (contested decision,recital 19, paragraphs 4, 8 and 13; documents 33.126/11581, 11699, 11700 and11752) and that the Cembureau agreement was concluded and confirmed at thosemeetings, it was entitled to take the view that Aalborg had participated in theinfringement referred to in Article 1 of the contested decision unless it hadexpressly distanced itself from it. That approach by the Commission, which ismoreover laid down in the case-law (see, for example, Hercules Chemicals vCommission, cited in paragraph 140 above, paragraph 232) did not thereforerequire any special statement of reasons. 1427. Lastly, BCA (T-54/95) submits that the Commission did not clearly explain itsreasons for concluding that BCA should be held responsible for the unlawfulactivities carried on within Cembureau. 1428. However, the reasons why BCA was held responsible for the infringementcomplained of in Article 1 of the contested decision are clearly set out in recitals44, 45, especially at paragraphs 1, 2, 7, 10 and 12, and recitals 46 and 65,particularly paragraphs 3 and 8, of the contested decision. BCA's argument musttherefore also be rejected. 4. Infringement of the rights of the defence when access was granted to the file 4.1. Incriminating evidence 1429. Unicem (T-50/95) complains that the Commission did not grant it access during theadministrative procedure to the 'Members Directory of Cembureau. Since it is anincriminating document used in the contested decision (recital 45, paragraph 13),its rights of defence were infringed. 1430. The Court points out that in the contested decision (recital 45, paragraph 13) theCommission refers to the Members Directory in order to refute Unicem's allegationthat none of its representatives ever bore the title of Head Delegate. According tothe Commission, 'this does not correspond to the facts, since Mr Nasi of Unicemwas at the time of the relevant events, at least until 1988, Head Delegate (see theCembureau Members Directory of July 1988, p. 56). 1431. The argument alleging infringement of its rights of defence is invalid in the presentcase, because Unicem itself accepted in its reply of 5 June 1998 to a writtenquestion from the Court that it had appointed Mr Nasi as Head Delegate duringthe period taken into consideration by the contested decision. In any event, thatargument is devoid of purpose. The Court has already held that the Commissioncould not rely on the designation of Mr Nasi as Head Delegate in order to findUnicem responsible for the infringement referred to in Article 1 of the contesteddecision, because Mr Nasi did not participate in any of the meetings at which theCembureau agreement was concluded and subsequently confirmed (see paragraphs1404 to 1417 above). 4.2. Exculpatory evidence 1432. In the observations which they lodged following the measures of 2 October 1996and 18 and 19 June 1997 Cembureau (T-26/95) and Cementir (T-87/95) submit thatduring the administrative procedure they were not given access to exculpatoryevidence relating to their participation in the infringement referred to in Article 1of the contested decision. 4.2.1. Case T-26/95 Cembureau v Commission 1433. In its observations of 10 February 1997 Cembureau submits that none of thedocuments in the national files which it was able to consult show that it hadconcerns about intra-Community trade in cement. On the contrary, the documentsconcerning imports support its argument that, first, it had no connection with analleged international market sharing agreement and, second, that no suchagreement existed. Thus, the file relating to France does not contain any evidenceto show that Cembureau involved itself in any way in the monitoring by the Frenchindustry of import levels (documents 33.126/14809 to 14827 and 33.126/14941 to14976). 1434. However, Cembureau's argument could not have altered the outcome of theadministrative procedure. The comments which it might have made on the basis ofthe documents referred to in the preceding paragraph would not have been of sucha nature as to shed a different light on the specific documentary evidence on whichthe Commission relied in the SO (recitals 9 and 61) and in the contested decision(recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement.Nor would those comments have been of such a nature as to shed a different lighton the documents entitled 'Meeting of Head Delegates, Paris, 14 January 1983(contested decision, recital 19, paragraph 4; document 33.126/11581), 'Meeting ofHead Delegates, Noordwijk, 19 March 1984 (contested decision, recital 19,paragraph 8; documents 33.126/11699 and 11700), and 'Meeting of HeadDelegates, Paris, 7 November 1984 (contested decision, recital 19, paragraph 13;document 33.126/11752) which show that Cembureau participated in the threemeetings of Head Delegates to which the contested decision refers and, accordingly,in the conclusion and confirmation of the Cembureau agreement. 4.2.2. Case T-87/95 Cementir v Commission 1435. In its observations of 10 February 1997 Cementir asserts that in the national filesit discovered a series of documents proving that the European cement market wasnaturally divided into separate zones, that intra-Community trade in cement wasnecessarily restricted to the frontier zones or, where it was possible, to exports bysea or river transport, and that that trade could at the very most concern certainspecific undertakings, but not itself, as it did not carry on any export activities. Itcould not therefore have been concerned by the alleged Cembureau agreement. 1436. The Court points out that the three Italian producers, Cementir amongst them,have already asserted in their reply to the SO that Italy could not have beeninvolved in the agreement on non-transhipment to home markets, since it did notimport or export (contested decision, recital 45, paragraph 14). However, theCommission sets out in the contested decision (recital 45, paragraph 14) thereasons for its view that 'this argument is not correct adding that 'at all events,... the fact remains that the undertakings of such countries, being members ofCembureau, participated in an agreement whose object was to prevent competition. Accordingly, the additional comments which Cementir might havemade in order to show that it did not engage in export trade would clearly not havebeen of such a nature as to alter the outcome of the administrative procedure. 1437. In its observations of 29 December 1997 Cementir also claims that a number ofdocuments show the existence of local agreements between various cementproducers. It refers in that regard to documents 33.126/837, 838, 860, 861, 985 to1009, 1119 to 1134, 1175 to 1179, 1543 to 1551, 1574 to 1577, 2934, 2935, 2945 to2951, 2954 to 2966, 3065 to 3068, 4066 to 4069, 4251 to 4253, 4263 to 4269 and5682 to 5687. Those documents prove that Cementir was not involved in any wayin those local agreements. 1438. The Court points out that in the contested decision Cementir was found to haveparticipated only in the international agreements and concerted practices (Articles1, 2, 4(1), (2) and (3)(a) and (b) and Article 5). Accordingly, the comments whichCementir might have made in order to show that it was wholly uninvolved incertain local agreements could not have altered the outcome of the administrativeprocedure. In any event, even if the documents to which it refers showed thatCementir did not participate in some international agreements and concertedpractices, that would not be of such a nature as to shed a different light on theevidence referred to in the SO (recitals 9 and 61) and in the contested decision(recitals 18, 19 and 45), which shows that the Cembureau agreement was concludedat the meeting of 14 January 1983 (see paragraph 1095 above), or on the documententitled 'Meeting of Head Delegates, Paris, 14 January 1983 (contested decision,recital 19, paragraph 4; document 33.126/11581) which is admissible as againstCementir (see paragraphs 329 and 330 above) and from which it is clear thatCementir's Head Delegate, Mr Cesareni, participated in that meeting and,therefore, in the conclusion of the Cembureau agreement. F  Participation of Unicem, of the indirect members of Cembureau and of Buzziin the infringement referred to in Article 1 of the contested decision 1439. Unicem was not represented at any of the meetings of Head Delegates at whichthe Cembureau agreement was concluded or confirmed. The indirect members ofCembureau were indirectly represented by their national association at thosemeetings. Buzzi is wholly unconnected with Cembureau. 1440. Apart from Hispacement, which has not brought an action to annul the contesteddecision, the indirect members of Cembureau to which Article 1 of the contesteddecision refers are: CBR, ENCI, Dyckerhoff, Vicat, Cedest, Ciments Français,Heidelberger, Lafarge, Alsen-Breitenburg, Nordcement, Valenciana, Rugby, Asland,Castle, Heracles, Uniland, Cimpor, SECIL, Titan, Holderbank, Hornos Ibéricos,Blue Circle and Halkis. In the contested decision, the proof of their participationin the infringement referred to in Article 1 is based on their participation in one or more measures implementing the Cembureau agreement. The decision states inregard to them (recital 65, paragraph 3, first subparagraph) that 'for the purposesof this decision, the Commission takes into consideration only the undertakingswhich were represented within Cembureau by their association and which, inaddition to their membership of the association, clearly manifested their accessionto the agreement by participating in a measure implementing the Cembureauagreement. 1441. The Court points out, however, that the Commission also relies on the presence ofa Head Delegate, who was a member of staff of certain indirect members ofCembureau, namely Blue Circle, CBR, Ciments Français, Lafarge, Dyckerhoff,Heidelberger, Titan, ENCI, Asland and Cimpor, at the meetings to which thecontested decision refers in finding that 'there is ... no doubt as to the participationof these undertakings in the agreement (contested decision, recital 65, paragraph3(b)). Although the above passage cited from recital 65, paragraph 3, firstsubparagraph, of the contested decision may cause confusion, it clearly emergesfrom the contested decision that the presence of a member of staff of an indirectmember undertaking of Cembureau at one of the meetings of Head Delegates didnot suffice for a finding that that undertaking had participated in the infringementreferred to in Article 1 of the contested decision. Proof that an indirect memberparticipated in the Cembureau agreement was not based on its presence at themeetings in question but rather on its participation in one or more measuresimplementing the Cembureau agreement. For that reason, the indirect membersof Cembureau which had been represented by a member of their staff at one ormore meetings of Head Delegates were considered  like the other indirectmembers and unlike the direct members  to have 'participated indirectly in the[Cembureau] agreement, through their participation in the various arrangementsand measures agreed on to supplement the general agreement and/or assist in itsimplementation (contested decision, recital 45, paragraph 10). For that reasonalso, Ciments d'Obourg, an indirect member of Cembureau whose member of staff,Mr Pestalozzi, was present at the Head Delegates meeting of 14 January 1983(contested decision, recital 19, paragraph 4), was not referred to in Article 1 of thecontested decision, because the Commission did not find that Ciments d'Obourghad participated in a measure implementing the Cembureau agreement. 1442. As regards Unicem, the Court has found that for the purpose of proving that it, adirect member of Cembureau, participated in the infringement referred to inArticle 1 of the contested decision, its situation is comparable to that of an indirectmember of Cembureau (see paragraph 1416 above). Thus, it can be found to haveparticipated in the Cembureau agreement only if it is proved that it participatedin a measure implementing the Cembureau agreement. 1443. Lastly, as regards Buzzi, which is neither a direct nor an indirect member ofCembureau, the Commission considers that it 'applied, through the concertedpractices [referred to in Article 3(1) of the contested decision] with Ciments Français, Lafarge and Vicat, which were associated with Cembureau, the agreementor principle of not transhipping to home markets (contested decision, recital 65,paragraph 3(c); see also recital 48, paragraph 2). Thus, in the case of Buzzi, itsparticipation in implementing measures, namely the infringements referred to inArticle 3(1) of the contested decision, 'must be regarded as providing evidence ofits participation in the Cembureau agreement or principle of not transhipping tohome markets (contested decision, recital 65, paragraph 4). 1444. It follows from the foregoing that, in the case of both the indirect members ofCembureau and in the case of Unicem and Buzzi, the proof of their participationin the Cembureau agreement is based on their participation in one or moremeasures implementing the Cembureau agreement and thus on their accession tothat agreement. 1445. Consequently, the argument by Ciments Français and Unicem that theirparticipation in the infringement referred to in Article 1 of the contested decisionwas proved on the basis that they had not openly distanced themselves mustalready be rejected at this stage. 1446. The measures implementing the Cembureau agreement are referred to in Articles2 to 6 of the contested decision. They were regarded not only as constituentelements of the single and continuous Cembureau agreement but also 'asinfringements in themselves (contested decision, recital 46, paragraph 1). 1447. In order to assess whether Unicem, the indirect members of Cembureau and Buzziparticipated in the infringement referred to in Article 1 of the contested decision,it will therefore be necessary to establish whether, first, they participated in thearrangements referred to in Articles 2 to 6 of the contested decision (seeparagraphs 1450 to 4015 below) and, second, whether their participation in thosearrangements, which might already constitute infringements in themselves, must beconsidered as implementation by them of the Cembureau agreement (seeparagraphs 4016 to 4114 below). 1448. It follows that the Court must reserve its examination of participation in theCembureau agreement by CBR, ENCI, Dyckerhoff, Vicat, Cedest, CimentsFrançais, Heidelberger, Lafarge, Alsen-Breitenburg, Nordcement, Unicem, Buzzi,Valenciana, Rugby, Asland, Castle, Heracles, Uniland, Titan, Cimpor, SECIL,Holderbank, Hornos Ibéricos, Blue Circle and Halkis. G  Conclusions 1449. Subject always to the question which has just been reserved for examination below,the Court must reject the pleas alleging infringements of Articles 85(1) and 190 ofthe Treaty, the principle of equal treatment and the rights of the defence in that the Commission found in Article 1 of the contested decision that there was anagreement contrary to Article 85(1) of the Treaty and that the various applicantsconcerned participated in it.                                                                     IV  Pleas alleging infringements of Articles 85(1) and 190 of the Treaty, of theprinciple of equal treatment and of the rights of the defence inasmuch as theCommission finds that there were two infringements of Article 85(1) of the Treatyconcerning exchanges of price information at Cembureau level and that the variousparties participated in them (contested decision, Article 2(1) and (2)) Preliminary observations 1450. In Article 2 of the contested decision the Commission finds that there were twoinfringements of Article 85(1) of the Treaty, each of which related to exchanges ofprice information at Cembureau level. 1451. In Article 2(1) it finds that at the Cembureau Head Delegates and ExecutiveCommittee meetings Cembureau and its direct members participated in agreementson the exchange of price information designed to facilitate the implementation ofthe Cembureau agreement. 1452. In Article 2(2) it finds that Cembureau and its direct members participated inconcerted practices involving periodic exchanges of price information, the purposeof which was also to facilitate the implementation of the Cembureau agreement. 1453. All the applicants referred to in Article 2 of the contested decision put forwardarguments seeking the annulment of that article. Some of the arguments aregrounded on discrepancies between the SO and the contested decision. Some of theapplicants deny that agreements on the exchange of price information wereconcluded at the Cembureau Head Delegates and Executive Committee meetings.Others claim that certain price information referred to in Article 2(2) was notproperly identified by the Commission. A series of arguments seeks to challengethe claim that the exchanges of price information referred to in Article 2constituted an infringement. Finally, certain applicants deny that they participatedin one or other or both of the infringements found or, at the very least, dispute theduration of such participation. When the Court examines the various arguments,it will identify the various applicants concerned. 1454. Furthermore, Cembureau (T-26/95), FIC (T-30/95), VNC (T-32/95), SFIC(T-36/95), Aalborg (T-44/95), Unicem (T-50/95), Irish Cement (T-60/95), ATIC(T-63/95), Italcementi (T-65/95) and Cementir (T-87/95) complain that, whenfinding the infringements in Article 2, the Commission infringed their rights ofdefence by not granting them, during the administrative procedure, access to thefull SO and to its investigation file, thus depriving them of exculpatory evidence. 1455. Lafarge (T-43/95), Rugby (T-53/95), Castle (T-56/95), Heracles (T-57/95), Cimpor(T-61/95), SECIL (T-62/95), Aker (T-70/95), EUROC (T-71/95), Blue Circle(T-88/95) and Halkis (T-104/95) also put forward a series of arguments contesting,on the substance, the validity of Article 2. However, they are not found to havecommitted the infringements referred to in that provision. Their arguments aretherefore irrelevant and so must be rejected here. 1456. Following the measures of 2 October 1996 and 18 and 19 June 1997, Rugby(T-53/95), Castle (T-56/95), Titan (T-64/95), Aker (T-70/95) and EUROC (T-71/95)also put forward evidence by which they sought to show that the administrativeprocedure could have had a different outcome, so far as concerns the infringementsrelating to exchanges of price information at Cembureau level, if they had had thefull version of the SO and of the Commission's investigation file in order to preparetheir defence against the SO. For the reasons set out in paragraph 257 above, thosearguments must also be rejected. 1457. In order to assess the legality of Article 2 of the contested decision, the Court mustascertain whether the Commission rightly found that the agreements and theconcerted practices which it found in that provision in fact existed, and whether itinfringed the rights of defence of the applicants mentioned in paragraph 1454above in not granting them full access to its investigation file during theadministrative procedure. Agreements on the exchange of price information at Cembureau meetings (Article 2(1)of the contested decision) 1458. According to Article 2(1) of the contested decision, Cembureau, FIC, Aalborg,SFIC, BDZ, AGCI, Irish Cement, Italcementi, Unicem, Cementir, CimentsLuxembourgeois, VNC, BCA, from 14 January 1983 to 14 April 1986, and ATICand Oficemen, from 1 January 1986 to 14 April 1986, 'infringed the provisions ofArticle 85(1) of the EC Treaty by participating in agreements on the exchange ofprice information, designed to facilitate the implementation of the agreementreferred to in Article 1, at the Cembureau Head Delegates and ExecutiveCommittee meetings. 1459. In the light of the arguments put forward by the applicants contesting the legalityof Article 2(1) of the contested decision, the Court must examine whether theinfringement found had already been complained of in the SO (A); whether it isestablished that the agreements on the exchange of price information were reachedat the Cembureau Head Delegates and Executive Committee meetings (B); andwhether the unlawful nature of those agreements (C), and the participation in themof the various associations and undertakings mentioned in Article 2(1) (D), areestablished. A  Consistency between the SO and the contested decision 1460. VNC (T-32/95), SFIC (T-36/95) and Unicem (T-50/95) maintain that theinfringement of which they are accused in Article 2(1) of the contested decision isa new objection which did not appear in the SO. SFIC claims that, in the SO, theonly objection raised with regard to exchanges of information at Cembureau levelconcerned a concerted practice relating to the circulation of information on pricelists (SO point 60, p. 169). However, in regard to the exchanges of information atissue, the contested decision draws a distinction between, on the one hand,agreements on exchanges of price information at the Cembureau meetings(Article 2(1)) and, on the other, concerted practices relating to the circulation ofprice lists (Article 2(2)). SFIC goes on to state that, even if it were accepted thatthe two types of information exchanges were presented separately in the factualpart of the SO, there is no consistency between the SO and the contested decisionsince no conclusion was drawn from that separate treatment in the legal assessmentof the SO (Wood Pulp II, cited at paragraph 106 above, paragraph 153). 1461. In this connection, the Court points out that point 8 of the SO, dealing with thefacts of the 'circulation of prices between members of Cembureau (Chapter 2),distinguished between, on the one hand, specific exchanges of price informationduring Cembureau meetings  broadly referring to the documents citedsubsequently in recital 16, paragraphs 2 to 7, of the contested decision  (SO, pages13 and 14) and, on the other, the system of regular circulation of the price lists setup at Cembureau level (SO, pages 14 and 15). In the legal assessment in point 60of the SO (Chapter 10) on the 'rules of fair competition and the circulation ofprice lists, the Commission referred to point 8 of the SO (see the first sentenceof point 60 of the SO, p. 168) and therefore, unequivocally, to the distinctionbetween each type of exchange. The objection based on specific exchanges of priceinformation during Cembureau meetings was therefore referred to both in fact andin law in the SO. VNC, SFIC and Unicem, which were specifically mentioned, inpoint 6 of the SO, as being among the 'members of Cembureau, were thus ableto understand that that objection, addressed to 'Cembureau and [to] its members(SO, point 60, p. 169), concerned them. 1462. There remains to be examined SFIC's argument concerning the legal classificationin the contested decision of the specific exchanges of price information. 1463. The SO must clearly set out the facts on which the Commission relies and its legalclassification of them (Akzo v Commission, cited in paragraph 323 above, paragraph29, and Cimenteries CBR v Commission, cited in paragraph 11 above, paragraph33). 1464. In the present case, the specific exchanges of price information were presented inthe SO (point 60, p. 169) as being the result of a 'concerted practice, whereas, in the contested decision, the Commission finally considered those specific exchangesto be the result of 'agreements (Article 2(1)). 1465. Such a reclassification did not infringe the rights of the defence during theadministrative procedure. First, the specific exchanges of price information weredescribed in point 60 of the SO as contrary to Article 85(1) of the Treaty. Secondly,that infringement was established, and classified as a concerted practice, on thebasis of the specific documentary evidence referred to in point 8 of the SO evidence which was sent to SFIC at the same time as the SO  and not on the basisof a finding of parallel conduct on the market. In such a case, the only line ofdefence available to SFIC during the administrative procedure lay in challengingthe documents on which the Commission relied in point 8 of the SO in concluding,at point 60, that there had been concerted action contrary to Article 85(1) of theTreaty. The actual classification adopted by the Commission in the SO to describesuch allegedly unlawful concerted action was of no relevance in establishing sucha defence. 1466. It follows from the foregoing that the argument put forward by VNC, SFIC andUnicem to the effect that there are discrepancies between the SO and thecontested decision must be rejected. B  The existence of agreements on exchanges of price information during theCembureau Head Delegates and Executive Committee meetings 1467. In Article 2(1) of the contested decision, the Commission finds that there wereagreements on the exchange of price information at 'the Cembureau HeadDelegates and Executive Committee meetings between Cembureau and its directmembers mentioned in that provision. 1468. Recital 47, paragraph 1, which refers to the presentation of the facts in recital 16on the 'circulation of information for meetings, states: 'At the meetings of Head Delegates held on 14 January 1983, 30 May 1983 and19 March 1984, ... the price situation in the various Cembureau countries wasexamined. Such examination was carried out at meetings during which the problemof increases in trade flows between member countries was discussed and solutionsput forward. 1469. The Court must ascertain whether the Commission has in fact proved thatagreements on exchanges of price information were concluded at the CembureauHead Delegates (1) and Executive Committee (2) meetings. 1. Cembureau Head Delegates meetings. 1470. None of the applicants denies that price information was exchanged during theHead Delegates meeting held on 14 January 1983 and on 19 March 1984, with theexception, first, of Ciments Luxembourgeois (T-34/95), which claims that duringthose two meetings talks centred exclusively on the economic situation of thecement industry and, secondly, BDZ (T-48/95), which states that the Commissionhas not proved that there were exchanges of information during the HeadDelegates meetings. 1471. The arguments put forward by Ciments Luxembourgeois and BDZ cannot beupheld. The bundle of documents referred to by the Commission in recital 16,paragraphs 2 to 7, recital 17, paragraphs 2 and 3, and recital 19, paragraphs 3, 5,6, 7, 9 and 10, of the contested decision irrefutably shows that, during thediscussions on intra-European trade (Head Delegates meeting held on 14 January1983) or on the situation of the European market (Head Delegates meeting on 19March 1984), comparative cement price levels in the Cembureau member countrieswere examined. 1472. While not denying that price information was exchanged during the Head Delegatesmeetings on 14 January 1983 and on 19 March 1984, Cembureau (T-26/95),Aalborg (T-44/95) and Irish Cement (T-60/95) claim that the data exchangedprincipally related to dumped imports originating particularly in Eastern Europe. 1473. None the less, although it is apparent from a number of documents referred to bythe Commission in recital 16, paragraphs 2 to 4, 6 and 7, of the contested decisionthat information on the price of imports originating in Eastern Europe wasdistributed during the Head Delegates meetings on 14 January 1983 and 19 March1984, information was also exchanged on intra-European trade prices at the firstof those meetings (see the handwritten 'preparatory note for the Head Delegatesmeeting held on 14 January 1983 (contested decision, recital 16, paragraph 2;document 33126/11590), document 33126/11592, cited in recital 16, paragraph 3,of the contested decision, found among the documents relating to the HeadDelegates meeting held on 14 January 1983, as well as a document dated 18January 1983 entitled 'Meeting of Head Delegates, Paris, 14 January 1983  Notesfor the President (contested decision, recital 17, paragraph 3, documents33.126/11630 to 11633)), and, at the second of those meetings, on the levels ofcement prices in the member countries (see the explanatory note to the diagramsent on 22 February 1984 by Cembureau to the Head Delegates, attached to thedraft agenda for the meeting on 19 March 1984 (recital 16, paragraph 6, of thecontested decision; documents 33.126/11714, 11715 and 11717), and notes for theHead Delegates meeting on 19 March 1984 (recital 16, paragraph 7, and recital 19,paragraph 10, of the contested decision; document 33.126/11735)). 1474. Cembureau, FIC (T-30/95), Irish Cement, ATIC (T-63/95) and Cementir (T-87/95)maintain that the table setting out the domestic prices (exclusive of tax) (document33126/11599), the only document on which the Commission relies, in recital 16, paragraph 5, of the contested decision, in order to establish that price informationwas distributed at the Head Delegates meeting on 30 May 1983 was, in actual fact,distributed during the Head Delegates meeting held on 14 January 1983. 1475. The Court finds that there is in fact nothing to connect the document in questionto the Head Delegates meeting on 30 May 1983. In recital 19, paragraph 6, of thecontested decision, the Commission itself includes that document among thoserelating to the Head Delegates meeting held on 14 January 1983. The Commissionhas not therefore established that, during the Head Delegates meeting on 30 May1983, price information had been exchanged or agreed to be exchanged. Such aconclusion is apposite not only with regard to those applicants which raised theargument under consideration, but also to the other applicants concerned byArticle 2(1), since they all essentially challenge the legality of that provision. 1476. Cembureau, Oficemen (T-59/95), ATIC and Cementir maintain that theCommission did not provide any evidence or explanation in the contested decisionto justify the conclusion that exchanges of price information took place any timeafter the Head Delegates meeting on 19 March 1984. 1477. The Commission, in its description in recital 16, paragraphs 2 to 7, of the contesteddecision of the 'circulation of information for meetings, does not in fact putforward any document or other evidence to prove that exchanges of priceinformation took place at the Head Delegates meeting on 7 November 1984referred to in recital 19, paragraphs 12 to 15, or at subsequent Head Delegatesmeetings. Moreover, in its legal assessment, in recital 47, paragraphs 1 to 5, of thematters set out in recital 16, paragraphs 2 to 7, it refers only to the Head Delegatesmeetings on 14 January 1983, 30 May 1983 and 19 March 1984. It must thereforebe held that it has not proved that price information was exchanged or was agreedto be exchanged at the Head Delegates meeting on 7 November 1984 or atsubsequent meetings. Such a conclusion is apposite not only with regard to thoseapplicants which raised the argument under consideration, but also to the otherapplicants concerned by Article 2(1), since they all essentially challenge the legalityof that provision. 2. Cembureau Executive Committee meetings. 1478. Cembureau, FIC, Aalborg, BDZ, BCA (T-54/95), Oficemen and Cementir maintainthat there was no exchange of price information during Cembureau ExecutiveCommittee meetings, in particular during the meeting on 14 April 1986  the datetaken to mark the end of the infringement referred to in Article 2(1) of thecontested decision  or, at the very least, that in the contested decision theCommission did not prove that exchanges took place in the course of thosemeetings. VNC (T-32/95), BCA and Cementir also complain that the Commissiongave no explanation, in recital 47, paragraphs 1 to 5, of the factors and reasons which led it to consider that price information had been exchanged duringExecutive Committee meetings and to take the date of the Cembureau ExecutiveCommittee meeting on 14 April 1986 as the end of the infringement referred to inArticle 2(1). 1479. The Commission does not in fact make any allusion to Cembureau ExecutiveCommittee meetings either in its presentation of the facts in recital 16, paragraphs2 to 7, concerning the circulation of specific price information or in the legalassessment which it then makes of those matters in recital 47, paragraphs 1 to 5. The evidence mentioned by the Commission in recital 16, paragraphs 2 to 7 refersexclusively to Head Delegates meetings, namely those on 14 January 1983, 30 May1983 and 19 March 1984 (see paragraphs 1470 to 1477 above). In recital 47,paragraph 1, the Commission simply states: 'At the meetings of Head Delegatesheld on 14 January 1983, 30 May 1983 and 19 March 1984 (see recital 16 above),the price situation in the various Cembureau countries was examined. 1480. At most, one of the handwritten notes found among the documents relating to theHead Delegates meeting held on 14 January 1983 states, with regard to 'EuropeanIntra-Trade prices, as follows: 'some informal prices but could be obtained withauthority of Executive Committee (contested decision, recital 16, paragraph 3;document 33.126/11592). However, that document does not, of itself, make itpossible to conclude that there were 'agreements on the exchange of priceinformation at 'the Cembureau Executive Committee meetings (Article 2(1)). 1481. In recital 47, paragraph 1, the Commission adds that 'examination [of the pricesituation in the various Cembureau countries] was carried out at meetings duringwhich the problem of increases in trade flows between member countries wasdiscussed and solutions put forward. The exchanges of price information were thuspurportedly the natural corollary to discussions on problems linked to trends intrade between the Cembureau countries. 1482. The Court must ascertain whether it may be concluded from the conduct describedin the contested decision, more specifically in recital 17, relating to the meetings ofthe Cembureau Executive Committee, that such discussions and/or exchanges ofprice information took place during those meetings. 1483. Of the Executive Committee meeting on 25 March 1983 (contested decision, recital17(a)) the Commission states that 'according to a handwritten Cimpor note at thetop of a page, a five-page document was distributed (documents 33322/308 to 312)at that meeting (contested decision, recital 17, paragraph 2). As the Commissionitself observes in recital 17, paragraph 3, that five-page document, which discusses'Intra-European trade, and specifically 'price comparisons (contested decision,recital 17, paragraph 2; document 33.322/311), 'is the same as the document, inEnglish and French versions, found amongst the documents relating to the HeadDelegates meeting held on 14 January 1983 (documents 33126/11617 to 11629) and is most of a document in English found amongst the document relating to the HeadDelegates meeting held on 14 January 1983 (documents 33.126/11630 to 11633)entitled Meeting of Head Delegates, Paris, 14 January 1983  Notes for thePresident, dated 18.1.83-HC/no .... 1484. However, even though that document is of such a nature as to confirm that acomparison of prices in intra-European trade took place during the HeadDelegates meeting held on 14 January 1983, it cannot be concluded from it thatthere was an exchange or an agreement to exchange information on those pricesat the Executive Committee meeting on 25 March 1983 in the course of which thatdocument was distributed. 1485. As to the Executive Committee meeting held on 9 November 1983, the Commissionstates (contested decision, recital 17(b)): 'The draft record of the Executive Committee meeting held on 9 November 1983(document 33.322/286 to 294), point 2. Current activities, letter (b) Otherquestions currently being pursued by the Committee  Cooperation on exports,after having noted Mr Canellopoulos's finding that export prices had deteriorated,states: Mr Bertran stated that he was personally optimistic as regards themaintenance of the volume of the overseas markets, but that the problem of priceweakness nevertheless remained critical. He felt that it was time to re-examine thescope for improving cooperation, not only between the large exporting countries,but between all the members of Cembureau. One of Cembureau's roles had to beto contribute to the establishment of healthy but realistic competition. The recordthen noted Mr Heiberg's statement on voluntary restraints on exports by theJapanese and South Korean cement industries, and the statement of Sir J. Milneon the need to establish closer relations between the Export Policy Committee, setup outside Cembureau, and the Executive Committee, after Mr Van Hove hadexpressed the opinion that no EEC rules opposed consultations and cooperationin overseas markets. 1486. The Court finds that that passage does not enable it to be concluded that duringthe meeting in question, which clearly concerned cooperation on overseas exports,the problem of increases in trade flows between Member States was discussed andthe price situation in the various Cembureau countries examined. 1487. As to the Executive Committee meeting on 14 April 1986, the Court points to thestatement made by Mr Bertrán, of Asland, recorded in the handwritten Italcementinote on that meeting: 'We must establish rules of the game amongst ourselves toavoid improper competition (contested decision, recital 17, paragraph 9; document33.126/3185). 1488. However, whatever was meant thereby, that unilateral statement does not of itselfmake it possible to take the view that the participants at that meeting examined,or agreed to examine, the price situation in the various Cembureau countries. 1489. It is apparent from the foregoing analysis that the Commission has not proven thatprice information was exchanged during meetings of the Executive Committee ofCembureau. Such a conclusion is apposite not only with regard to the applicantswhich raised the argument under consideration, but also those other applicantsconcerned by Article 2(1), since they all essentially challenge the legality of thatprovision. 1490. In conclusion, the Commission was not justified in finding that there wereagreements on exchanges of price information at Cembureau meetings other thanthose of the Head Delegates on 14 January 1983 and 19 March 1984. 1491. The link between the exchange of price information at those two meeting isestablished by various documents cited in the contested decision. The explanatorynote accompanying the diagram on prices sent on 22 February 1984 by Cembureauto the Head Delegates in view of the forthcoming meeting of 19 March 1984('Cement price level in member countries on 31/12/83; contested decision, recital16, paragraph 6; document 33.126/11715) states: 'As last year, this information isgiven in the attached diagram, which calls for the following explanations ....Secondly, the conclusion reached by the participants at the Head Delegatesmeeting held on 14 January 1983 as a result of the intra-European trade pricecomparison, namely that 'the price differentials, which could range from single todouble within Europe, explained in part the new flows in intra-European trade(see the five-page document distributed at the Executive Committee meeting on25 March 1983 (contested decision, recital 17, paragraph 2; document 33.322/311)and the document entitled 'Meeting of Head Delegates, Paris, 14 January 1983 Notes for the President (contested decision, recital 17, paragraph 3; document33.126/11632)) was reiterated at the Head Delegates meeting held on 19 March1984, during which it was emphasised that 'the gap between extremes which isbetween 1 and 2 inevitably constitutes a temptation (memorandum for thechairman for the Head Delegates meeting on 19 March 1984; contested decision,recital 16, paragraph 7, and recital 19, paragraph 9; document 33.126/11728). 1492. It follows from the whole of the foregoing that Article 2(1) of the contesteddecision must be annulled with regard to all the undertakings and associations towhich it refers in so far as it finds that there were agreements on the exchange ofprice information at Cembureau Head Delegates meetings held after that on 19March 1984 or at Cembureau Executive Committee meetings. 1493. BCA also complains that the Commission infringed Article 190 of the Treaty byfailing to state why it assumed that an agreement on the exchange of price information (Article 2(1)) had been concluded separately from a concerted practicerelating to the circulation of the same information (Article 2(2)). 1494. However, the Court finds that the Commission clearly sets out, in recital 16(a)('Circulation of information for meetings) and recital 16(b) ('Circulation ofperiodical information) of the contested decision, the facts and documents onwhich it relies in order to conclude at recital 47(a) ('The exchanges of priceinformation at the meetings), that there were, first, anti-competitive agreementson the exchange of price information at Cembureau meetings (Article 2(1)) and,secondly, anti-competitive concerted practices involving periodic exchanges of priceinformation (Article 2(2)). 1495. Moreover, a simple reading of the documents referred to by the Commission inrecital 16(a), on the one hand, and 16(b), on the other, reveals the significantdifferences between the price information distributed 'at the meetings (contesteddecision, recital 16(a)) and that periodically exchanged between Cembureau andits members (contested decision, recital 16(b)). 1496. BCA's argument must therefore be rejected. 1497. For its part, Italcementi (T-65/95) maintains that the Commission has not provedthe existence of an 'agreement or 'concurrence of wills on exchanges of priceinformation at the Head Delegates meetings held on 14 January 1983 and 19March 1984. Moreover, the information exchanged during those meetings wassimilar to that communicated periodically via the CPRF (see paragraph 401 above)of the Cembureau member countries, in regard to which the Commission foundthere to be a concerted practice (contested decision, Article 2(2)). 1498. However, the fact that the exchanges in question took place at meetings of itselfsuffices to conclude that they were the object of a concurrence of wills between theparticipants in those meetings, and thus of an agreement within the meaning ofArticle 85(1) of the Treaty (see the case-law cited in paragraph 1010 above). Thatanalysis is borne out by the passage from the session notes of the Head Delegatesmeeting on 19 March 1984 (contested decision, recital 16, paragraph 7, and recital19, paragraph 10; document 33.126/11735), according to which, during that meeting,'it was agreed that a visual presentation of price ranges was an effective means ofhighlighting potential causes of conflict. 1499. Furthermore, it has already been pointed out (see paragraph 1495 above) that theprice information which was compared during the Head Delegates meetings on 14January 1983 and 19 March 1984 and that which was periodically exchanged via theCPRF were materially different, despite a number of similarities illustrated, forexample, by the document cited by the Commission in recital 16, paragraph 5, ofthe contested decision (document 33.126/11599). In those circumstances, subject tothe assessment to be made as to the unlawfulness of the specific and periodic exchanges of price information at Cembureau level (see paragraphs 1501 to 1537and 1620 to 1682 below), it must be concluded that the Commission was able,without contradiction, to take the view that the former were the subject ofagreements (Article 2(1)), and the latter the subject of concerted practices(Article 2(2)). 1500. Italcementi's argument must therefore be rejected. C  The unlawful nature of the exchanges of price information which took placeat the Head Delegates meetings on 14 January 1983 and on 19 March 1984 1501. According to Article 2(1) of the contested decision, the exchanges of specific priceinformation which took place during the Head Delegates meetings on 14 January1983 and on 19 March 1984 were the result of agreements contrary to Article 85(1)of the Treaty inasmuch as they were designed to 'facilitate the implementation ofthe agreement referred to in Article 1, that is to say the Cembureau agreement. 1502. In recital 47, paragraph 1, the Commission states: '... According to the letter convening the meeting held on 14 January 1983 and thechairman's draft introductory statement (see paragraphs 2 and 5 of recital 19) andthe memorandum and session notes for the meeting held on 19 March 1984 (seeparagraphs 9 and 10 of recital 19), the purpose of the exchanges was to assess therisks entailed by an increase in certain imports coupled with a sharp reduction incertain prices (see paragraph 5 of recital 19), to highlight potential causes ofconflict (see paragraph 10 of recital 19) and gradually to reduce the pricedifferentials so as to remove any temptation to export (see paragraph 9 of recital19). 1503. It adds (first subparagraph of paragraph 2) that 'through the exchanges of priceinformation, Cembureau and its members were aiming to achieve another objective,namely the introduction of fair competition rules amongst themselves for inter-member and external exports, rules whose content and purpose it subsequentlysets out (second and third subparagraphs). 1504. Finally, it points out (recital 47, paragraph 4): 'It is also evident from the documents mentioned in recitals 16 and 17 and, inparticular, from the documents relating to the Head Delegates meetings held on14 January 1983 and 19 March 1984 that the purpose of the exchange ofinformation was to reinforce the general agreement on non-transhipment to homemarkets and, thus, to curb intra-Community trade in cement. 1505. The applicants mentioned in Article 2(1) of the contested decision put forwardessentially five arguments disputing the unlawful nature of those specific exchangesof price information. 1506. First, all those applicants dispute that the exchanges of information which tookplace during the Head Delegates meetings held on 14 January 1983 and on 19March 1984 were unlawful, pointing out that the data exchanged during thosemeetings or, at the very least, those which were distributed during them inconnection with their own market were devoid of any confidential, commercial orstrategic value. 1507. The applicants assert that the information exchanged during those meetings wasofficial information in the public domain or, at least, obtainable by other means,and relating for the most part to State-controlled prices and, in any event, tocurrent prices. According to the applicants, those data were historical and purelystatistical, part of the normal and lawful activity of trade associations or approvedstatistical organisations. They did not differ fundamentally from the data which wascirculated via the CPRF. They were approximate and involved average orhypothetical prices and thus did not reflect the prices actually charged byundertakings. They were in fact mere 'trend indicators. On the participants' ownadmission (see the memorandum for the chairman for the Head Delegatesmeeting on 19 March 1984 (contested decision, recital 16, paragraph 7, and recital19, paragraph 9; document 33.126/11728), and the session notes of the HeadDelegates meeting held on 19 March 1984 (contested decision, recital 16,paragraph 7, and recital 19, paragraph 9; document 33.126/11735)), the dataexchanged was difficult to compare in view of the great heterogeneity of pricingmechanisms, currency fluctuations which inevitably affect any international analysisand the fact that they did not concern the same category of cement for everycountry. They were devoid of any confidential information on reductions anddiscounts, transport costs, or rates of VAT, and did not identify any of theundertakings. 1508. The applicants claim that the specific exchanges of information on prices were notonly not contrary as such to Article 85(1) of the Treaty, but, moreover, wereneither capable nor intended to facilitate either of the anti-competitive objectswhich the Commission attributes to them in recital 47, paragraphs 1 to 4, namelyto reinforce the Cembureau agreement and to introduce rules of fair competitionwhen exporting within the Community and to non-member countries. At the veryleast, the Commission neither adduced nor even sought to adduce such evidence.Cembureau, SFIC, Aalborg, Oficemen and Irish Cement maintain that, in actualfact, those exchanges of prices took place only in the framework of discussions atthat time, first, on the possible extension, at European level, of the BPS (seeparagraph 852 above), which had been notified to the Commission in July 1981,and, secondly, on the problems linked to dumped imports from Eastern Europeand Spain (preparation of anti-dumping proceedings; collection of data to justify and illustrate the extent of the damage sustained). That is the context in which theapplicants claim that the various documents on which the Commission bases itslegal assessment in recital 47, paragraph 1 (see paragraph 1502 above), ought tobe interpreted. Oficemen and AGCI add that those exchanges of information werealso intended to enable national associations from a country applying a Statecontrol pricing system to substantiate requests for price increases which theyintended to lodge with their governmental authorities. For its part, FIC states thatthe only purpose of such exchanges was to clarify the situation of the cementindustry in a period of recession. 1509. FIC and Cementir also maintain that the contested decision is vitiated by failureto state reasons as to the allegedly unlawful nature of the specific exchanges ofprice information which took place at Cembureau level. FIC claims that thedocuments mentioned in recital 17 of the contested decision, on 'discussions onfair or healthy or correct competition, are not used against it and that theCommission had no intention of drawing any legal consequences therefrom. Inthose circumstances, the Commission could not legitimately use them to underpinits line of argument as to the unlawful nature of the specific exchanges of priceinformation. Cementir, on the other hand, criticises the Commission for havingmerely referred to the documents mentioned in recital 16, paragraphs 2 to 7,without specifying its reasons for alleging that the exchanges of information wererestrictive. 1510. In that respect, it should be recalled that, in Article 2(1) of the contested decision,the Commission objects to the exchanges of price information during the HeadDelegates meetings held on 14 January 1983 and on 19 March 1984, in that theagreements from which they resulted were 'designed to facilitate theimplementation of the [Cembureau] agreement. Those exchanges are thusconsidered unlawful not in themselves but in that they were the linchpin or, at thevery least, one of the linchpins of the Cembureau agreement. 1511. Accordingly, the Court need only ascertain whether or not they were carried outwith the anti-competitive object found by the Commission in the contested decision.There is no need to examine whether the intrinsic nature of the informationexchanged might or might not by itself make them unlawful. 1512. In that connection, the Court points to the discrepancy in the contested decisionbetween the operative part and the legal assessment as regards the purpose of thespecific exchanges of price information. 1513. Although, in Article 2(1) the Commission finds those exchanges to be contrary toArticle 85(1) of the Treaty on the ground that they were designed 'to facilitate theimplementation of the [Cembureau] agreement, it attributes a twofold objectiveto them in its legal assessment of those exchanges in recital 47(a): first (paragraph2), 'the introduction of fair competition rules amongst themselves for inter-member and external exports; secondly (paragraph 4), 'to reinforce the general agreementon non-transhipment to home markets and, thus, to curb intra-Community tradein cement. That discrepancy is not, however, of any consequence, since thepassages of the contested decision (paragraph 17) on the 'discussions on fair orhealthy or correct competition were not ultimately the subject-matter of anobjection upheld in the operative part of the decision, as the Commission hasconfirmed on various occasions during the written and oral procedures. 1514. Thus it is only necessary to examine whether or not, in Article 2(1) of the contesteddecision, the Commission was justified in finding that the exchanges of priceinformation which took place during the Head Delegates meetings held on 14January 1983 and on 19 March 1984 were contrary to Article 85(1) of the Treaty,on the ground that their purpose had been to 'facilitate the implementation of the[Cembureau] agreement. There is no purpose in examining the applicants'arguments that those exchanges were neither liable nor intended to introduce faircompetition rules for inter-member exports and exports to third countries. 1515. So far as concerns the Head Delegates meeting held on 14 January 1983, theChairman's draft introductory statement  to which the Commission refers in recital47, paragraph 1  states as follows (contested decision, recital 19, paragraph 5;document 33.126/11584): 'I shall now give a very precise description of the aim and scope of our discussions:  the first task, with your help, is to set out all the data we have in the threefields in question [namely the three items set down in the agenda for themeeting, including inter-European trade and, in particular, the nationalprice situation].  we shall thus be able to assess the risks entailed by an increase in certainimports coupled with a sharp reduction in certain prices, before thisphenomenon has had time to spread in extent and gravity.  our objective is ..., with your assistance, to identify possible solutions capableof modifying market developments and to propose, at least in regard toprinciples, certain rules of the game which it is in the interests of all of usto follow. ... 1516. So far as concerns the Head Delegates meeting held on 19 March 1984, thememorandum prepared on 15 March 1984 for the Chairman  also referred to inrecital 47, paragraph 1  states as follows in item 2 dealing with the 'situation onthe European market (contested decision, recital 16, paragraph 7, and recital 19,paragraph 9; document 33.126/11728): 'Comments on the table summarising the prices situation:  the price levels indicated are approximate but none the less significant. ...  the gap between extremes which is between 1 and 2 inevitably constitutesa temptation.  it is therefore desirable gradually to reduce the gap, essentially by increasingthe lowest prices (two thirds of output are sold at under $50, i.e. well belowJapanese and US domestic prices), and also by moderating high pricetrends. 1517. The notes on that meeting  also mentioned by the Commission in recital 47,paragraph 1  draw the following conclusions from the comments generated by the'table showing cement prices (in principle ex-works) in the member countries andin Japan and the USA (contested decision, recital 16, paragraph 7, and recital 19,paragraph 10; document 33.126/11735): 'Although the data collected were not fully comparable in view of differences inprice quotations, it was agreed that a visual presentation of price ranges was aneffective means of highlighting potential causes of conflict ... 1518. In view of those various extracts, the Commission was justified in considering thatthe purpose of the exchanges of price information during the Head Delegatesmeetings on 14 January 1983 and on 19 March 1984 was (recital 47, paragraph 1)'to assess the risks entailed by an increase in certain imports coupled with a sharpreduction in certain prices ... as well as to highlight potential causes of conflict... and gradually to reduce the price differentials so as to remove any temptationto export. It was thus fully entitled, and gave adequate reasons, to conclude thatthe purpose of the exchanges of information on the Cembureau member countries'prices which had taken place during the discussions on intra-Community trade oron the European market situation in the course of the Head Delegates meetingson 14 January 1983 and 19 March 1984 was 'to reinforce the general agreementon non-transhipment to home markets which had been concluded and thenconfirmed at those meetings and thus, 'to curb intra-Community trade in cementor, in short (Article 2(1) of the contested decision), to 'facilitate theimplementation of the [Cembureau] agreement. 1519. Contrary to what Cembureau maintains, in order to do so, the Commission is notobliged to show that those exchanges were the result of a mandate to reduce pricedifferentials in Europe. 1520. Secondly, Irish Cement complains that, with regard to the Head Delegates meetingheld on 14 January 1983, the Commission put forward only three handwritten notes(contested decision, recital 16, paragraphs 2 to 4; documents 33.126/11590, 11592and 11614), two of which were merely preparatory (documents 33.126/11590 and11592), in order to submit that the exchanges of price information during thatmeeting were intended to assist the implementation of the Cembureau agreement. 1521. That argument must be rejected. The three handwritten notes in question were putforward by the Commission principally in order to prove that '[at] the meeting ofHead Delegates held on 14 January 1983 ... the price situation in the variousCembureau countries was examined (contested decision, recital 47, paragraph 1,first sentence). The Commission infers the anti-competitive object of thoseexchanges from the analysis of all the document extracts which it cites in the thirdsentence of recital 47, paragraph 1. Those extracts contain precisely, so far asconcerns the Head Delegates meeting held on 14 January 1983, a passage from theChairman's draft introductory statement which shows that the purpose of thatmeeting was 'to assess the risks entailed by an increase in certain imports coupledwith a sharp reduction in certain prices (contested decision, recital 19, paragraph5; document 33.126/11584). Read in their context (see paragraph 1515 above), theyclearly signify that the purpose of the exchanges of information on prices inCembureau member countries during that meeting was to point up the differencesbetween various national price levels, some of which had been sharply reduced, inorder 'to identify possible solutions capable of modifying market developmentsbefore the 'phenomenon of an increase in imports and a sharp reduction incertain prices 'had time to spread in extent and gravity (Chairman's draftintroductory statement, cited above). The Commission was therefore right toconsider that the exchange of information in question was intended to assist theimplementation of the Cembureau agreement concluded at that meeting (seeparagraphs 979 to 985 above). 1522. Thirdly, Aalborg, Irish Cement, Italcementi, Cementir and AGCI state that a largeamount of the information exchanged during the Head Delegates meetings held on14 January 1983 and on 19 March 1984, at least the information distributed inregard to their own market, related to State-controlled prices, so that the exchangesreferred to in Article 2(1) of the contested decision could not have had an anti-competitive interest or purpose, at least so far as they were concerned. 1523. BCA claims that under the CPMA (see paragraph 91 above) in force on its marketat that time the CMF would have been incapable of contributing during the HeadDelegates meetings to any arrangement intended to lead to alignment of prices inEurope. BCA explains that, because of the CPMA, which had entrusted to theIndependent Costs Committee the calculation of price variations on the basis of aseries of specific criteria, no external factor  not even changes in prices abroad was capable of influencing the level of United Kingdom prices. 1524. Such a line of argument cannot be upheld. The information on the prices in thevarious Cembureau member countries exchanged during the Head Delegatesmeetings held on 14 January 1983 and 19 March 1984 fell within the framework ofcomparisons whose purpose was to 'assess the risks entailed by an increase incertain imports coupled with a sharp reduction in certain prices (Chairman's draftintroductory statement for the Head Delegates meeting held on 14 January 1983;contested decision, recital 19, paragraph 5; document 33.126/11584) and to'highlight potential causes of conflict (session notes of the Head Delegatesmeeting held on 19 March 1984; contested decision, recital 16, paragraph 7, andrecital 19, paragraph 10; document 33.126/11735), in the light of which it wasdeemed 'desirable, so as to avoid 'temptation[s] to export, 'gradually to reducethe gap [between extremes], essentially by increasing the lowest prices ... and alsoby moderating high price trends (memorandum for the Chairman for the HeadDelegates meeting on 19 March 1984; contested decision, recital 16, paragraph 7,and recital 19, paragraph 9; document 33.126/11728). As to the rest, the existence,in certain countries, of mechanisms for controlling or setting prices did not preventthe industries concerned from taking into account general trends expressed by thoseprice comparisons either  on markets characterised by high price levels  by'moderating requests for price increases lodged with the public authorities orcompetent bodies or  on markets experiencing low price levels  by submittingrequests for price increases in order gradually to reduce the gap between extremes,in compliance with the wish expressed at the Head Delegates meeting. 1525. Fourthly, Cembureau and Irish Cement maintain that, contrary to what is claimedin recital 47, paragraph 3, of the contested decision, the Commission has not shownthat 'price guidelines were defined or applied during the Head Delegates meetingon 14 January 1983. 1526. Although, in fact, there is nothing to prove that guidelines were defined or applied,so far as concerns prices, at the Head Delegates meeting on 14 January 1983, it ishowever clear that at the Head Delegates meeting of 19 March 1984 it was deemed'desirable gradually to reduce [the gap between extremes, which remained from 1to 2], essentially by increasing the lowest prices ... and also by moderating highprice trends (memorandum for the Chairman for the Head Delegates meetingon 19 March 1984; contested decision, recital 16, paragraph 7, and recital 19,paragraph 9; document 33.126/11728). 1527. In all events, the submissions by Cembureau and Irish Cement cannot obscure thefindings of fact on which the Commission relied in recital 47, paragraph 1, of thecontested decision as a basis for concluding in Article 2(1) that the exchanges ofprice information which took place during the Head Delegates meetings held on14 January 1983 and on 19 March 1984 were 'designed to facilitate theimplementation of the [Cembureau] agreement, a conclusion which the analysisset forth in paragraphs 1515 to 1519 shows to be justified. 1528. The argument put forward by Cembureau and Irish Cement must therefore berejected. 1529. Fifthly, a number of the applicants put forward a series of arguments disputing theanti-competitive effects of the specific exchanges of price information referred toin Article 2(1) of the contested decision. 1530. Italcementi thus claims that the Commission neither showed nor even claimed inthe contested decision that, following such exchanges of information, the prices ofItalian cement were realigned on the prices charged on other markets. AGCImaintains that those exchanges of prices did not hinder the expansion of intra-Community trade for Greek cement as from the mid-1980s. 1531. Such an argument cannot be upheld. It should be recalled that, for the purposesof applying Article 85(1) of the Treaty, there is no need to take account of theconcrete effects of an agreement when it is apparent that it has as its object theprevention, restriction or distortion of competition within the common market (seethe cases cited in paragraph 837 above). In such a case, the absence in thecontested decision of any analysis of the effects of the agreement on competitiondoes not therefore constitute a defect in the decision capable of entailing itsannulment. In the present case, the Commission has shown that the agreements onthe exchanges of price information at the Head Delegates meetings held on 14January 1983 and on 19 March 1984 were designed to facilitate the implementationof the Cembureau agreement. Since it had proved that the purpose of thoseagreements was anti-competitive, it did not have to show in addition that theexchanges of price information resulted in restriction of competition in the commonmarket. 1532. FIC maintains that the Commission cannot take the view that the following extractof the notes of the Head Delegates meeting of 19 March 1984: 'Although the datacollected were not fully comparable in view of the differences in price quotations,it was agreed that a visual presentation of price ranges was an effective means ofhighlighting potential causes of conflict (contested decision, recital 19, paragraph10; document 33.126/11735) is evidence that 'the price guidelines established at themeetings on 14 January 1983 and 30 May 1983 were followed (contested decision,recital 47, paragraph 3). 1533. It is true that the extract in question illustrates not the anti-competitive effects ofthe specific exchanges of price information, but rather their unlawful purpose andtheir capacity for serving such an end, even though the data collected were not fullycomparable. 1534. However, the confusion in the Commission's assessment in this regard is of noconsequence, since the agreements on the exchange of price information inArticle 2(1) of the contested decision were found to be an infringement on the basis of their anti-competitive purpose, which was proven by the Commission (seeparagraphs 1515 to 1519 above). 1535. Finally, Aalborg maintains that the Commission infringed Article 190 of the Treatyby failing to explain in what way the agreements referred to in Article 2(1) of thecontested decision appreciably affected trade between Member States. 1536. However, since, in Article 2(1), it found the agreements on the exchange of priceinformation to be an infringement solely on the ground that their purpose was anti-competitive, namely to facilitate the implementation of the Cembureau agreement,the Commission could confine itself to explaining, in recital 52 of the contesteddecision, how the purpose of those agreements had been to affect trade betweenMember States. 1537. Aalborg's argument must therefore be rejected. D  The participation of the applicants in the infringement referred to inArticle 2(1) of the contested decision 1538. The infringement referred to in Article 2(1) is alleged against Cembureau and thefollowing direct members: FIC, VNC, Ciments Luxembourgeois, SFIC, Aalborg,BDZ, Unicem, BCA, Oficemen, Irish Cement, ATIC, Italcementi, Cementir andAGCI. 1539. First, VNC (T-32/95) claims that it was only indirectly concerned by the HeadDelegates meetings, which were in any case purely informal. It adds that, by reasonof the special features of the Netherlands industry, it had no interest in facilitatingthe implementation of the Cembureau agreement by means of any agreementwhatsoever. 1540. However, those arguments cannot hide the fact that VNC participated in the HeadDelegates meetings of 14 January 1983 and 19 March 1984, which gave rise toexchanges of price information designed to facilitate the implementation of theCembureau agreement. Since VNC adduced no evidence to show that, during thosemeetings, it had openly distanced itself from the anti-competitive purpose of thoseexchanges or indicated to the other participants that it was present for reasonsdifferent from theirs, it must be considered to have subscribed to, or at least giventhe other participants the impression that it subscribed to, the unlawful objectiveof those exchanges. The Commission was therefore entitled to find that itsparticipation in the agreements at issue was unlawful (see, to this effect, the case-law cited in paragraph 1353 above). 1541. VNC's argument must therefore be rejected. 1542. Secondly, SFIC (T-36/95) maintains that the Commission has not proved that it sentprice information for the Head Delegates meetings. 1543. However, the Court points out that in Article 2(1) of the contested decisionCembureau and its direct members, including SFIC, are not accused of havingcommunicated price information during or for the meetings at issue, but of havingparticipated during those meetings in agreements on the exchange of priceinformation designed to facilitate the implementation of the Cembureau agreement.Since SFIC has neither denied having participated in the Head Delegates meetingsof 14 January 1983 and 19 March 1984 nor adduced any evidence of anyreservation or dissent on its part with regard to the anti-competitive object of theexchanges of price information during those two meetings, it must be consideredto have subscribed to, or at least given the other participants the impression thatit subscribed to, the unlawful object of those exchanges. The Commission wastherefore justified in finding that it had unlawfully participated in the agreementson the exchange of price information during those meetings (see, to that effect, thecase-law cited in paragraph 1353 above). 1544. SFIC's argument must therefore be rejected. 1545. Thirdly, BDZ (T-48/95) states that none of the documents which led to the findingof the infringement referred to in Article 2(1) of the contested decision was foundin its files. It denies having participated in that infringement, observing, first, thatnone of the documents relating to the meetings at issue make any reference tostatements or to any particular action by it in relation to the exchanges of priceinformation during those meetings and, secondly, that the evidence relied upon bythe Commission does not prove that it received from its members any priceinformation or sent them such information itself. It adds that it always consideredthat it was pointless to send its members the information exchanged in the courseof Cembureau meetings, because of the lack of value of that information. 1546. It must however be observed that the fact that none of the evidence put forwardas proof of the infringement referred to in Article 2(1) of the contested decisionwas found in BDZ's files is not of such a nature as to affect the evidential value ofthe documents in question (see paragraph 1397 above), to hide the fact that BDZparticipated in the Head Delegates meetings of 14 January 1983 and 19 March1984, or to prevent a finding that the BDZ participated in that infringement. 1547. BDZ has not adduced any evidence to show that, during the meetings, in question,it openly distanced itself from the anti-competitive purpose of the exchanges onprice information. It must be considered to have subscribed to, or at least giventhe other participants the impression that it subscribed to, the unlawful object ofthose exchanges. In those circumstances, and in view of what has been pointed outin paragraph 1543 above with regard to the infringement complained of inArticle 2(1) of the contested decision, the Commission was justified in finding that BDZ participated unlawfully in the agreements on the exchange of priceinformation during the Head Delegates meetings of 14 January 1983 and 19 March1984 (see the case-law cited in paragraph 1353 above), and was not required toprove that BDZ had gathered information on prices from its members inpreparation for those meetings, and/or that following those meetings it had passedon to its members the information exchanged during the meetings. 1548. BDZ's argument must therefore be rejected. 1549. Fourthly, Unicem (T-50/95) claims that, since it did not participate in any of themeetings which gave rise to the exchanges of price information referred to inArticle 2(1) of the contested decision, no liability can attach to it for them. It addsthat its capacity as direct member of Cembureau alone does not demonstrate thatit participated in that infringement. 1550. In the present case, it is not disputed that Unicem did not attend the HeadDelegates meetings of 14 January 1983 and 19 March 1984 (see paragraph 1406above). 1551. In holding Unicem responsible for the infringement referred to in Article 2(1) ofthe contested decision, the Commission (defence in Case T-50/95, paragraph 49)bases itself on the fact that Unicem was allegedly represented at those twomeetings by the Italian Head Delegates who did attend, namely Cementir (meetingof 14 January 1983) and Italcementi (meeting of 19 March 1984). 1552. For the reasons set out in paragraphs 1407 to 1412 above, that assessment cannotbe upheld. 1553. Nor does the fact that Unicem was a direct member of Cembureau, on which theCommission relies in its defence in Case T-50/95 (paragraph 50), demonstrate thatit participated in the unlawful agreements referred to in Article 2(1) of thecontested decision. Membership of a trade association, in this case Cembureau,cannot result automatically in a finding that the member concerned is liable forunlawful conduct by the association, doing away with the need to prove actualparticipation of that member in the unlawful conduct complained of. 1554. The Commission was therefore wrong to find that Unicem participated in theinfringement upheld in Article 2(1) of the contested decision. 1555. It follows that that provision must be annulled in so far as it finds that from 14January 1983 to 14 April 1986 Unicem participated in agreements on the exchangeof price information designed to facilitate the implementation of the Cembureauagreement. 1556. Fifthly, in its reply, BCA (T-54/95) claims not to know what information wasexchanged at the Head Delegates meetings and, therefore, not to be able toexpress an opinion on the purpose and effect of those exchanges of information. 1557. However, BCA cannot claim not to know the type of information was exchangedduring Head Delegates meetings and also assert (application, paragraph 36) thatthat information was not fundamentally different from the periodical informationon prices which was already circulating via the CPRF. 1558. In all events, it is not disputed that Sir John Milne, who had been appointedUnited Kingdom Head Delegate by the CMF, attended the Head Delegatesmeetings of 14 January 1983 and 19 March 1984 (contested decision, recital 19,paragraphs 4 and 8). The CMF could not therefore have been unaware of the factthat there were exchanges of price information during those meetings, and of theanti-competitive purpose of those exchanges. The Commission was thereforejustified in finding that BCA, as successor to the CMF (see paragraphs 1337 to1341 above), participated unlawfully in the agreements to exchange priceinformation at the Head Delegates meetings of 14 January 1983 and 19 March1984. 1559. Sixthly, Oficemen (T-59/95) and ATIC (T-63/95) maintain that, throughout theperiod of the infringement found against them in Article 2(1) of the contesteddecision  that is to say from 1 January to 14 April 1986  there is no evidence oftheir having participated in the Cembureau meetings which gave rise to agreementson the exchange of price information designed to facilitate the implementation ofthe Cembureau agreement. 1560. It has been found in paragraphs 1489, 1490 and 1492 above that the Commissionhas not in fact shown that there were agreements on the exchange of priceinformation designed to facilitate the implementation of the Cembureau agreementsubsequent to the Head Delegates meeting of 19 March 1984. 1561. Article 2(1) of the contested decision must therefore be annulled, in so far as itfinds that from 1 January 1983 to 14 April 1986 Oficemen and ATIC participatedin agreements on the exchange of price information designed to facilitate theimplementation of the Cembureau agreement. 1562. Seventhly, Irish Cement (T-60/95) states that its reply of 5 January 1983 (annex 18to its application; documents 33.126/11576 and 11577) to circular number 104Hc/gm sent by Cembureau on 28 December 1982 contains only information relatingto imports from Eastern Europe. 1563. That argument must be rejected. Even supposing that the information sent to theHead Delegates meeting of 14 January 1983 concerned only imports from EasternEurope, the fact remains that Irish Cement participated in that meeting and in the meeting of 19 March 1984. Since the applicant has not shown that at those twomeetings it expressed any reservation or dissent with regard to the anti-competitivepurpose of the exchanges of price information, it must be considered to havesubscribed to, or at least given the other participants the impression that itsubscribed to, the unlawful object of those exchanges. The Commission wastherefore justified in finding that it had unlawfully participated in the agreementson the exchange of price information at those meetings (see, to that effect, thecase-law cited in 1353 above). 1564. Eighthly, the Commission has not established that Italcementi participated in theHead Delegates meeting of 14 January 1983 (see paragraphs 1346 to 1349 above).That applicant cannot therefore be held to have taken part in the unlawfulagreement on the exchange of price information concluded at that meeting. On theother hand, Italcementi was represented at the Head Delegates meeting of 19March 1984 (see paragraph 1351 above). Failing evidence to the contrary, theCommission was entitled to find that it had participated in the agreement on theexchange of price information at that meeting. 1565. Accordingly, in the absence of evidence that Italcementi participated in theinfringement in question before 19 March 1984, Article 2(1) of the contesteddecision must be annulled in so far as it finds that it participated in agreements onthe exchange of price information designed to facilitate the implementation of theCembureau agreement before that date. 1566. Ninthly, Cementir (T-87/95) maintains that the only Head Delegates meeting inwhich it participated at which price information was exchanged was that of 14January 1983. 1567. It is not disputed that Cementir attended only one of the two meetings at whichexchanges of price information took place, namely that of 14 January 1983. 1568. The Commission claims (defence in Case T-87/95, paragraph 25) that Cementir wasrepresented by Italcementi at the meeting of 19 March 1984. 1569. However, it should be pointed out that as a direct member of Cembureau,Cementir had its own Head Delegate (see paragraph 1409 above). In thosecircumstances, and in the absence of any evidence that Cementir asked Italcementito represent it at the meeting of 19 March 1984, the Commission was not justifiedin inferring from Italcementi's presence at that meeting that Cementir had beenrepresented at it and, thus, that it had subscribed to the agreement on theexchange of price information on that date. 1570. Nor, for the reasons set forth in paragraph 1553 above, does the fact that Cementirwas a direct member of Cembureau make it possible to hold it liable for the agreement on the exchange of price information reached at a meeting which it hadnot attended. 1571. In the absence of evidence that Cementir participated in the infringement inquestion after 14 January 1983, Article 2(1) of the contested decision must beannulled in so far as it finds that Cementir participated in agreements on theexchange of price information designed to facilitate the implementation of theCembureau agreement after that date. 1572. Tenthly, Italcementi (T-65/95), Cementir (T-87/95) and AGCI (T-103/95) submitthat they  or, in AGCI's case, its members  had no interest in or fear of intra-Community trade at the time of the disputed meetings, so that, as far as they wereconcerned, the exchanges on price information which took place at those meetingscould not have had an anti-competitive purpose. 1573. However, whatever might have been the Italian and Greek undertakings' feelingswith regard to intra-Community trade at that time, the fact remains that Italcementidid take part in the Head Delegates meeting of 19 March 1984, Cementir in thatof 14 January 1983 and AGCI in both those meetings. 1574. Since none of those applicants has shown that, during those meetings, theyexpressed any reservation or dissent with regard to the ant-competitive purpose ofthose exchanges of price information, they must be considered to have subscribedto, or at least given the other participants the impression that they subscribed tothe unlawful object of those exchanges. The Commission was therefore justified infinding that they had unlawfully participated in one and/or both agreements on theexchange of price information reached at those meetings (see to that effect thecase-law cited in paragraph 1353 above). 1575. The arguments put forward by Italcementi, Cementir and AGCI must therefore berejected. Concerted practices involving the periodic exchanges of price information(Article 2(2)(a) and (b) of the contested decision) 1576. According to Article 2(2) of the contested decision, Cembureau, FIC, Aalborg,SFIC, BDZ, AGCI, Irish Cement, Italcementi, Unicem, Cementir, CimentsLuxembourgeois, VNC, BCA, from 1 January 1984 to 31 December 1988, andATIC and Oficemen, from 1 January 1986 to 31 December 1988, 'infringed theprovisions of Article 85(1) of the EC Treaty by participating in concerted practicesdesigned to facilitate the implementation of the agreement referred to in Article1 and relating to: (a) the circulation of information on the Belgian and Dutch producers'minimum prices for supplies of cement by lorry and of the Luxembourgproducer's prices, inclusive of rebates; (b) the circulation of information on the Danish and Irish producers' individualprice-lists, on the trade price-lists in force in Greece, Italy and Portugal, andon the average prices charged in Germany, France, Spain and the UnitedKingdom. 1577. It is not disputed that, at least during the period covered by Article 2(2), there was,at Cembureau level, a system of periodically exchanging information, in the contextof which 'Cembureau receiv[ed] from and communicat[ed] to its membersinformation on the prices applicable in the various countries (contested decision,recital 16, paragraph 8). In recital 16, paragraphs 8 to 22, the Commission analysesthe documents on which it relies in reaching the conclusion that information wascirculated via that system between Cembureau and its members, at least onBelgian, Danish, French, German, Greek, Irish, Italian, Luxembourg, Netherlands,Portuguese, Spanish and United Kingdom prices. 1578. In the light of the arguments put forward by the applicants in contesting the legalityof Article 2(2) of the contested decision, the Court must examine whether theinfringement found had already been complained of in the SO (A); whether theCommission properly identified the price information referred to therein (B);whether the unlawful nature of those periodic exchanges of information (C) and theparticipation in the infringement by the various associations and undertakingsconcerned (D) are established; and whether the duration of the infringement wascorrectly assessed so far as concerns those undertakings and associations (E). A  Consistency between the SO and the contested decision 1579. VNC (T-32/95), SFIC (T-36/95), Aalborg (T-44/95) and Irish Cement (T-60/95)maintain that their rights of defence were infringed during the administrativeprocedure, either in that the objection relating to 'the circulation of informationon the Belgian and Dutch producers' minimum prices for supplies of cement bylorry and of the Luxembourg producer's prices, inclusive of rebates(Article 2(2)(a) of the contested decision) was not set out in the SO, or in that thatobjection was upheld in the contested decision on the basis of evidence which wasnot referred to in the SO and of which they were not informed during theadministrative procedure. 1580. VNC thus states that documents 33.126/15136 to 15157, on which the Commissionrelied in recital 16, paragraph 18, and recital 47, paragraph 9, in concluding that'information on the ... Dutch producers' minimum prices for supplies of cement by lorry (Article 2(2)(a)) circulated between Cembureau and its direct members,including VNC, were not referred to in the SO. 1581. SFIC maintains that, in the SO, none of the Commission's claims related evencursorily to the objection upheld in Article 2(2)(a), an objection which in fact arosefrom a question raised during the hearings in March 1993. 1582. Aalborg states that documents 33.126/15099 to 15114 and 15136 to 15157, on whichthe Commission relies in recital 16, paragraphs 10 and 18, and recital 47,paragraphs 7 and 9, in concluding that 'information on the Belgian and Dutchproducers' minimum prices for supplies of cement by lorry (Article 2(2)(a))circulated between Cembureau and its direct members, including Aalborg, were notreferred to in the SO and were not in the Box (see paragraph 95 above) whichaccompanied the SO. 1583. Finally, Aalborg and Irish Cement observe that, in concluding that 'information onthe ... Luxembourg producer's prices, inclusive of rebates (Article 2(2)(a) of thecontested decision) had been circulated, the Commission relied in recital 16,paragraph 17, and recital 47, paragraph 8, on a document they had not received inthe course of the administrative procedure, namely annex 2a to Cembureau's replyto the SO. 1584. Before considering the merits of those various arguments, the Court points out thatalthough, as will be stated below (paragraphs 1633 to 1638), the periodic exchangesof price information referred to in Article 2(2) are all held to have been unlawfulon the ground that their object was to 'facilitate the implementation of the[Cembureau] agreement and not because of the intrinsic nature of the dataconcerned, the Commission not only complains of that common anti-competitiveobject but also highlights, in recital 47(b)(i), the particular seriousness of theperiodic exchanges on Benelux prices, emphasising that 'Cembureau and, throughit, all its members receive[d] information that was particularly likely to influencetheir competitive behaviour vis-à-vis the Belgian, Dutch and Luxembourgproducers (contested decision, recital 47, paragraph 10; see also recital 47,paragraph 12). Far from being irrelevant statements regarding the quality of theinformation exchanged on the Benelux countries' prices, the specific arguments inrecital 47(b)(i) dealing with that information, which led to the finding inArticle 2(2)(a), thus emphasise the gravity of the periodic exchanges of suchinformation and of the infringement of Article 85(1) of the Treaty which theyconstitute. In any event they show that in the contested decision the Commissiontakes a more severe view of them than the regular circulation of information on theother Cembureau countries' prices (see, to that effect, recital 47, paragraph 13,second subparagraph). 1585. Having made that observation, the Court points out that in point 8 of the SO (pp.14 and 15) on 'the circulation of prices between Cembureau members the Commission described 'the system of circulating prices that has been in force atleast since 1980 in the following terms: 'Each member sends Cembureau, usually before the prices enter into force, thenew price list or amendments to the existing price list with the date on which theytake effect; as soon as it receives this information from each member, Cembureausends its members a cement price reference file which refers to the membercommunicating the information and contains the new prices (normally ex-works)for each type of cement and the terms of sale (ex-works, delivered in terms ofdistance, minimum delivery quantities) and a file on price development forcement containing the dates of price changes since 1980 and the prices ex-worksand the percentage increases of each change to the price list. The Cembureau memorandum sent to the Commission along with the documentson the circulation of price lists between members contains a number of comments,some of which are quoted here: [Belgium since 1986 confirmation of prices bytelephone once a year. France ... Prices for two types of cement. As from 1987,France no longer wants to see these prices published in the Cembureau documents.They may be communicated by telephone to the Members. Spain... We stoppedpublishing cement prices in 1984, a price average is communicated to us once ayear, for information, by telephone. United Kingdom ... We have not receivedany official communication of prices since 1985. We obtain prices from differentsources (i.e. builders) which we communicate as an approximate estimate bytelephone]. The memorandum adds: [We generally communicate prices only to our members.... Unfortunately, the price structures and cement types chosen as references byeach country are so different that all the comparisons which have been carried outhave proved erroneous]. The memorandum concludes: [A cement producer who is familiar with thestandards and with the costs of transport can of course make use of such prices.However, we never carry out this work for our members]. 1586. Thus the SO did not allude, in its presentation of the periodic exchanges of priceinformation, to the special nature of the information which was alleged to circulatebetween Cembureau and its members on Benelux prices. In the legal assessment,in point 60 of the SO, of the facts described in point 8, the Commission complainedgenerally about the 'circulation of price lists (SO, p. 168) or the 'circulation ofinformation on price lists (SO, p. 169) between Cembureau and its members, butdid not highlight the allegedly more sensitive nature, under competition law, of theinformation on Benelux prices. 1587. Furthermore, it has already been found (see paragraphs 367 and 368 above) thatdocuments 33.126/15099 to 15114 and 15136 to 15157, on which the Commission relied in recital 16, paragraphs 10 and 18, and recital 47, paragraphs 7 and 9, inconcluding in Article 2(2)(a) that the information which had circulated periodicallybetween Cembureau and its direct members related, so far as concerned Belgiumand the Netherlands, to 'minimum prices for supplies of cement by lorry, weredocuments that had not been referred to in the SO and were not in the Box (seeparagraph 95 above). 1588. As regards the objection concerning the periodical circulation of price lists, therewere, among the documents contained in that Box, in document 33.126/15096 cited, in particular, in recital 16, paragraph 8(i), of the contested decision  only thefollowing particulars on Belgian and Netherlands prices: 'The prices sent on to Cembureau are exclusive of VAT and without rebate. Eachcountry has a different price structure, prices may be ex-works, delivered to the siteor delivered at the station, by road, by waterway, etc.  Belgium Photocopies of the prices from 1984 to 1986  more price increases after 1986 System of prices (full control until 1986, public price list sent on to Cembureau) Confirmation over telephone of prices once a year ...  Netherlands Photocopies of the prices from 1984 to 1986 System of prices (practically free since 1985) ENCI's public price list. 1589. Finally, it is not disputed that annex 2a to Cembureau's reply to the SO, on whichthe Commission relies in recital 16, paragraph 17, and recital 47, paragraph 8, ofthe contested decision in concluding in Article 2(2)(a) that the periodicalinformation which circulated between Cembureau and its members related, so faras concerned Luxembourg, to the 'Luxembourg producer's prices, inclusive ofrebates was not sent by the Commission to the addressees of the SO in the courseof the administrative procedure (see paragraph 401 above). 1590. As regards the objection concerning regular circulation of price lists, there were,among the documents contained in the Box, in document 33.126/15096, mentionedin paragraph 1588 above, only the following particulars on Luxembourg prices: 'The prices sent on to Cembureau are exclusive of VAT and without rebate. Eachcountry has a different price structure, prices may be ex-works, delivered to the siteor delivered at the station, by road, by waterway, etc.  Luxembourg Photocopies of the prices from 1984 to 1986 (last price change received) System of prices (control) Prices communicated by Ciments Luxembourgeois, the only cement producer. 1591. The Court must therefore uphold the arguments put forward by VNC, SFIC,Aalborg and Irish Cement claiming that their rights of defence were infringedinasmuch as Article 2(2)(a) of the contested decision finds that the periodicalcirculation of information between Cembureau and its members related, so far asconcerned the Belgian and Netherlands prices, to '[those two countries'] producers'minimum prices for supplies of cement by lorry and, so far as concernsLuxembourg, '[that country's] producer's prices, inclusive of rebates. 1592. As regards infringement of essential procedural requirements, the Court finds ofits own motion (Interhotel v Commission, cited in paragraph 487 above, paragraph14) that the rights of defence of the other applicants referred to in Article 2(2) ofthe contested decision were also infringed. 1593. It follows that Article 2(2)(a) of the contested decision must be annulled in so faras it finds that the periodical circulation of information between Cembureau andits members related, so far as concerned Belgian and Netherlands prices, to '[their]producers' minimum prices for supplies of cement by lorry and, so far as concernsLuxembourg, '[its] producer's prices, inclusive of rebates. Such annulment doesnot however affect the finding  which is not contested by the applicants  thatinformation on Belgian, Dutch and Luxembourg prices circulated betweenCembureau and its members during the period in question. 1594. Cembureau (T-26/95) criticises generally the lack of precision in the arguments inthe SO dealing with the periodic exchanges of price information. It submits that thevery detailed analysis of the price information set out in recital 16, paragraphs 8 to22, of the contested decision did not appear in the SO, which contained only ageneral account of Cembureau's practices regarding the circulation of informationon prices lists. 1595. VNC (T-32/95) and BCA (T-54/95) assert that the objection upheld in Article 2(2)of the contested decision is an entirely new objection. BCA states that The Factsin the SO included only a brief description of the system of regular circulation ofprice information in force at Cembureau level (SO, pp. 14 and 15) and that the Legal Assessment in the SO contained only general references to the circulation ofthe price lists (SO, pp. 168 to 170). 1596. In this connection, it should be observed that, although the SO must clearly setforth the facts on which the Commission relies and its legal classification of them,that may be done summarily and the decision is not necessarily required to be areplica of the statement of objections (see Musique Diffusion Française vCommission, cited in paragraph 439 above, paragraph 14). 1597. In the present case, it has already been pointed out (see paragraph 1585) that point8 of the SO (Chapter 2, pp. 14 and 15) gave a general description of the system forcirculating prices in force at Cembureau level, setting out several observations, aswell as final remarks, contained in Cembureau's note accompanying the documentssent to the Commission in response to a request for information, concerning theperiodical circulation of price lists (documents 33.126/15096 and 15097). That note,which was referred to in the SO and was in the Box (see paragraph 95 above),contains (see document 33.126/15096) a succinct country-by-country description ofthe type of price information provided by Cembureau for distribution to itsmembers during the period under consideration. 1598. In point 60 of the SO (pp. 168 and 169) the Commission explained how, in its view,'Cembureau and its members had infringed Article 85(1) of the Treaty, 'from1983 at least, by participating in a system of periodic exchanges of priceinformation: first, that system was intended to 'to provide information on theconduct of Cembureau members in the various countries and thus to allow therules of fair competition to be complied with; secondly, its objective was 'to getCembureau members to reduce price differences between the various countries soas to remove or reduce the temptation to export to the other members' markets. 1599. Without prejudice to the conclusions arrived at in paragraph 1593 above withregard to the findings in Article 2(2)(a) concerning the periodical circulation ofinformation on Benelux prices, Cembureau, VNC and BCA were thus able torealise, in the light of the various passages of the SO, that the Commission wasalleging that they had participated in the infringement ultimately upheld inArticle 2(2) of the contested decision. The additional particulars provided by theCommission in recital 16, paragraphs 11 to 16 and 19 to 21, which led it, inArticle 2(2)(b), to group the information exchanged on the 'non-Beneluxcountries' prices under three categories  that is, 'individual price-lists (forDenmark and Ireland, countries which at the time had only one national producer),'trade price-lists (for Greece, Italy and Portugal) and 'average prices (forGermany, France, Spain and the United Kingdom)  cannot be held to be aninfringement by the Commission of the rights of the defence during theadministrative procedure. Those particulars do no more than substantiate evidencewhich, for the most part, was already apparent from document 33.126/15096 referred to in paragraph 1588 above. Moreover, they did not increase the gravity of the objection set forth in the SO relating to the periodical circulation of pricelists within Cembureau, unlike in the case of the additional details provided by theCommission in the contested decision regarding information on Benelux prices (seeparagraph 1584 above). 1600. The arguments put forward by Cembureau, VNC and BCA must therefore berejected. 1601. In its reply, Aalborg also argues that the objection in respect of the periodicexchanges of price information was reformulated in the contested decision,inasmuch as, in the decision, the Commission claims that those periodic exchangeswere intended to enable alignment of prices for exports which would have takenplace notwithstanding the Cembureau agreement, whereas in the SO (point 60) theCommission interpreted those exchanges as an infringement that was closely linkedto the rules of fair competition. Unicem (T-50/95) claims that in the SO (point 60,third paragraph) the circulation of price lists was considered to be the subject ofa separate agreement or concerted practice, intended to set up coordinationbetween the participants and to impose conditions that differed from normalmarket conditions, whereas in the contested decision (recital 47) the exchange ofprice lists was described as a supplementary agreement designed to facilitate theCembureau agreement. Unicem considers it was unable to refute, during theadministrative procedure, that 'facilitation of the Cembureau agreement. 1602. The Court points out first of all that according to Article 2(2) of the contesteddecision, the periodic exchanges of price information were held contrary toArticle 85(1) of the Treaty inasmuch as they were allegedly 'designed to facilitatethe implementation of the [Cembureau] agreement. It is therefore necessary toascertain whether it was sufficiently clear from the SO that it was that particularanti-competitive purpose that was being complained of. 1603. In point 59 of the SO (Chapter 10, p. 168), the Commission stated, with regard tothe various 'agreements and practices described in Chapter 2  Section 1 andSection 2 [of the SO]: 'Within the framework of and through Cembureau, the European cementproducers agreed on plans, arrangements and measures, adopted underCembureau's institutional structure and within the framework of a system ofmeetings and continuous bilateral and multilateral contacts promoted by theCembureau institutions, designed to ensure non-encroachment on respective homemarkets, the sharing of markets in accordance with quotas or target volumes ortemporary measures designed to regulate and control sales volumes, and theexchange of information on prices and exports and imports so as to enable themto coordinate their action more effectively. 1604. In the legal assessment of 'the rules of fair competition and the circulation ofprice lists, the Commission explained  as pointed out above (see paragraph 1598) that the circulation of price lists was intended, in its view, not only to provideinformation on the conduct of Cembureau members in the various countries andthus to allow the rules of fair competition to be complied with, but also 'to getCembureau members to reduce price differences between the various countries soas to remove or reduce the temptation to export to the other members' markets(SO, point 60, first paragraph, p. 168). 1605. On reading those various passages of the SO, Aalborg and Unicem were in aposition to take cognizance of the fact that the Commission was objecting to thesystem of periodic exchanges of price information between Cembureau members,not only because this had the result of artificially changing the competitiveconditions on the market or of imposing fair competition rules, but also becauseit was intended to get the Cembureau members to reduce price differences and,consequently, the temptation to export, in short, to ensure compliance with theCembureau agreement. 1606. The arguments put forward by Aalborg and Unicem must therefore be rejected. B  Identification of the information referred to in Article 2(2)(b) of the contesteddecision 1607. Cembureau (T-26/95) and Italcementi (T-65/95) claim that, in Italy, determinationof cement prices was subject to the approval of the public authorities until 1993,rather than 1985, as the Commission states in recital 16 of the contested decision. 1608. The Court finds, however, that the Commission does not claim in the contesteddecision that Italian cement prices were liberalised from 1985. It only observes(recital 16, paragraph 16) that, from December 1985, the system of price controlswas replaced by 'supervisory arrangements, under which each undertaking, on thebasis of the cost trend survey carried out by the CIP amongst a number ofproducers, submits to the relevant Ministry the price list which it intend[ed] toapply, on which the Ministry [had to] reach a decision within 30 days. 1609. In any event, neither Cembureau's nor Italcementi's assertions are of such a natureas to invalidate the conclusion drawn by the Commission, in Article 2(2)(b) of thecontested decision, from the analysis set out in recital 16, paragraph 16, thereof,namely that the system of periodic exchanges of price information in force atCembureau level related, so far as Italian prices were concerned, to 'trade pricelists. 1610. SFIC (T-36/95) claims that it only transmitted average price lists to Cembureau, notindividualised data on French producers' actual prices. Those average prices were drawn up on the basis of price lists sent by its members, so that they cannot bedescribed as 'average prices, contrary to what the Commission states inArticle 2(2) of the contested decision. 1611. It must, however, be held that the Commission does not allege in the contesteddecision that the information on French prices which circulated betweenCembureau members, was individualised data. In Article 2(2)(b) it finds only thatinformation was circulated on 'average prices charged in ... France. In recital 47,paragraph 14, third subparagraph, it points out that 'the price averages sent for ...France ... did not include any identification of producers. Nor does it submit thatthe information on the French market related to real prices actually charged by thedomestic producers. 1612. Moreover, the various documents referred to in recital 16, paragraph 12, in orderto illustrate the kind of information which was circulated at Cembureau level inrespect of the French market (documents 33.126/15096, 15170 to 15182 and 15230to 15243) all use the word 'prices, which nullifies the argument put forward bySFIC grounded on the distinction which it claims the Commission should havedrawn in the present case between 'prices and 'price lists. 1613. The Commission was therefore justified in finding, in Article 2(2)(b), that thesystem of periodical circulation of price information in force at Cembureau levelrelated, so far as concerns France, to 'average prices charged on that market. 1614. Irish Cement (T-60/95) considers that the information on Ireland, as described inrecital 16, paragraph 15, of the contested decision, does not convey the real natureof the information sent to Cembureau, since the description contains the words'minimum and 'maximum, which do not feature in the actual information sent(see document 33.126/15122, cited in recital 16, paragraph 15). 1615. It should, however, be pointed out that, according to document 33.126/15122referred to in the preceding paragraph, the following information was sent on 8July 1985 by Irish Cement to Cembureau: 'The following are cement prices from 8 July 1985 ... Bagged: ordinary portland cement  from ...  to ... ... 1616. The Commission cannot reasonably be accused of having distorted the real natureof the information sent by Irish Cement to Cembureau on the ground that it statesin recital 16, paragraph 15, that 'judging from the example supplied by Cembureau, Irish Cement provided price data for: ... bagged ordinary Portland cement from ...(minimum) to ... (maximum). 1617. In any event, Irish Cement's argument is not of such a nature as to invalidate theanalysis which led the Commission to find, in Article 2(2)(b) of the contesteddecision, that the periodical circulation of price information organised atCembureau level related, so far as concerned Ireland, to 'the Irish producer'sindividual price-lists. 1618. AGCI (T-103/95) denies having distributed 'market price lists or 'price lists, asthe Commission claims in recital 47, paragraphs 13 and 15, of the contesteddecision. At the hearing it stated that by that argument it meant that the data onprices which it had provided to Cembureau during the period under considerationhad never contained confidential commercial information. 1619. That argument, which seeks to deny that there was any significant value in the priceinformation circulated on Greek prices at Cembureau level, will be consideredbelow in paragraphs 1622 to 1647. At this stage it need only be observed that theCommission does not claim in the contested decision that the periodical circulationof information on prices in force at Cembureau level concerned, so far as concernsthe Greek market, confidential commercial information. It states (recital 47,paragraph 14, second indent) that, 'as regards ... Greece ... the price liststransmitted [were] those approved by the public authorities and relate[d] to theentire trade in each country, a finding which leads it to conclude, in Article 2(2)(b)of the contested decision, that the periodical circulation of price informationbetween Cembureau members related, so far as concerned Greece, to 'trade pricelists. AGCI's argument is not of such a nature as to invalidate that finding. C  The unlawful nature of the periodic exchanges of price information 1620. In Article 2(2) of the contested decision, the Commission objects to the system ofperiodical circulation of prices set up at Cembureau level because it was the resultof 'concerted practices designed to facilitate the implementation of the[Cembureau] agreement. 1621. The applicants referred to in Article 2(2) of the contested decision put forward, insubstance, eight arguments to contest that the periodic exchanges of priceinformation were unlawful. 1622. First, those applicants put forward a series of arguments emphasising the totalabsence of commercial, confidential or strategic value of the price informationcirculated between them during the period under consideration or, at least, of thevalue of the information relating to the prices applicable in their own markets. 1623. The applicants claim that the information in question was official data in the publicdomain or at least obtainable from other sources and was always distributed byCembureau to its members after the entry into force of the prices communicated,on the occasion of annual updates. It is clear from the description in recital 16,paragraphs 8 to 22, of the contested decision that much of that informationconcerned prices subject to State control or supervision or, as in the case of theUnited Kingdom, prices set under market agreements whose legality wasacknowledged. The information in the CPRF (see paragraph 401 above) consistedof historical and statistical data, collected as part of the normal activity of tradeassociations or approved State organisations. That information was unreliable,approximate and incomplete, since it related to 'price lists or 'averages of pricelists and covered only a limited range of cement types. The data were difficult tocompare, bearing in mind the enormous heterogeneity of the price mechanisms andthe currency fluctuations which affect any international analysis. The informationwas globalised and no more than a 'trend indicator which made no reference toVAT rates, rebates, transport costs or conditions of sales, and did not individualiseundertakings or give a breakdown by regional markets of the country concerned orby production area of the domestic operators. In no case did the exchangescomplained of reveal the actual prices charged on the market. AGCI, for its part,believes that it was conceivable that the information contained in Cembureau'sCPRF was inaccurate. It points to the wide discrepancy between the officialinformation on export volumes provided by Cembureau to its members and theEurostat documents. 1624. The applicants claim that not only were the periodic exchanges of information onprices not as such contrary to Article 85(1) of the Treaty, but they were notcapable of nor intended to serve either of the anti-competitive purposes which theCommission ascribes to them in the contested decision, namely of ensuringcompliance with the Cembureau agreement and compliance with the rules on faircompetition in intra-Cembureau exports. At the very least, the Commissionadduced no evidence to substantiate its accusations. Cembureau adds that theCPRF's data could have provided useful information on another undertaking'sintention to break the home-market rule only if it had contained details on factorssuch as transport costs, excess capacity, the ability to acquire a position in theexport markets, the ability to comply with local legislation and an assessment of thelikelihood of possible retaliatory measures. AGCI, for its part, disputes theCommission's argument that the regular circulation of prices at Cembureau levelwould enable the producers to align their export prices with prices charged by thelocal price leaders; it states that the setting of export prices also depended on theparticular method of international maritime trading, and on the existence, at thetime, of exchange controls.                                                                     1625. Cembureau, FIC, SFIC, BCA, Oficemen and ATIC state that, as the Commissionitself observes in recital 47, paragraph 13, of the contested decision, the informationsystem at issue existed long before the adoption of the Cembureau agreement, which makes it impossible to take the view that the periodic exchanges referred toin Article 2(2) were intended to ensure or facilitate the implementation of thatagreement. BCA considers that, before it came to the conclusion that from 1984the system was intended to facilitate the implementation of the Cembureauagreement, the Commission should at least have shown that, from 1984, the datetaken as the starting point of the infringement referred to in Article 2(2), a changehad taken place in the way that system operated. 1626. Cembureau, BCA, Oficemen, Irish Cement, ATIC and AGCI maintain that, inactual fact, the periodic exchanges in question served a number of perfectly lawfulends, such as the dissemination of statistical studies to the public, the State andindustrial authorities, performance of technical, academic and economic analysesin order, for example, to assess the competitive position of the cement industry bycomparison with other industries producing construction materials, or to showgeneral trends in cement prices in Europe with a view to supporting requests forprice increases lodged with the relevant public authorities by industries in marketssubject to a system of price control or supervision. 1627. Cembureau, FIC and Cementir also claim that the contested decision is vitiated byfailure to provide an adequate statement of reasons concerning the allegedlyunlawful nature of the periodic exchanges of price information found inArticle 2(2). Cembureau and Cementir thus criticise the Commission for not havingexplained in what way the periodic exchanges of general and historic informationcould have constituted an measure which was supplementary to the Cembureauagreement. FIC states that, since the evidence referred to in recital 17 with regardto 'discussions on fair or healthy or correct competition is not used against itand the Commission had no intention of drawing any legal conclusions from it, theCommission could not legitimately use them to underpin its argument as to theunlawful nature of the periodic exchanges of price information 1628. On that question, the Court points out first that the price information circulated viathe CPRF was not as neutral as the applicants make out. 1629. Thus, as the Commission rightly states in recital 47, paragraph 14, first indent, ofthe contested decision: 'The price lists for Denmark and Ireland relate to individual undertakings [Aalborgand Irish Cement respectively, the only domestic producers on their market at thematerial time]. The claim that the information is not individualised is thusinvalidated. 1630. Moreover, although the CPRF information actually related only to applicable pricelists, the fact remains that, as the Commission rightly points out in recital 16,paragraph 8(i), of the contested decision, certain members sometimes sent toCembureau notification of changes to the price list before they took effect. In those circumstances, in view of the regularity with which the price data was updated (seedocuments submitted by Cembureau to the Commission; documents 33.126/15098to 15305), the arguments of the applicants seeking to reduce the value of theinformation exchanged to that of purely statistical or historical interest cannot beupheld. 1631. Finally, according to a note from Cembureau to the Commission (contesteddecision, recital 16, paragraph 22; document 33.126/15097), although 'the pricestructures and cement types chosen as references by each country were so differentthat all the comparisons which have been carried out have proved erroneous, '[a]cement producer who was familiar with the standards and with the costs oftransport [could] of course make use of such prices. Thus, the informationcontained in the CPRF could be profitably exploited by those in the trade, eventhough, according to Cembureau, they were inadequate for internationalcomparisons. 1632. The argument put forward by AGCI based on a comparison between Cembureauand Eurostat documents (see paragraph 1623 above) must be rejected, since it isbased on mere suspicions arising from a comparison between sources ofinformation which relate to volumes of exports rather than to prices; it is notsupported by the slightest concrete evidence. 1633. In any event, it should be recalled that although in its legal assessment, theCommission distinguishes between the exchanges of information on Benelux prices(contested decision, recital 47(b)(i))  exchanges which, in its view (recital 47,paragraph 10), related to 'information which is particularly likely to influence theircompetitive behaviour vis-à-vis the Belgian, Dutch and Luxembourg producers and exchanges of information on other countries' prices (contested decision, recital47(b)(ii))  exchanges which, in its view (recital 47, paragraph 13), were 'lessserious , all those periodic exchanges are, in the end, held to be unlawful inArticle 2(2) on the ground that they were part of the framework for theCembureau agreement, whose implementation they facilitated. 1634. The Court must therefore ascertain whether or not those periodic exchanges weremotivated by the anti-competitive object which the Commission attributes to themin the contested decision, irrespective of whether the intrinsic nature of theinformation thus exchanged could, by itself, have rendered unlawful the system bywhich they were periodically circulated. 1635. So far as concerns the alleged object of the periodic exchanges of priceinformation, a comparison between the operative part and the legal assessment ofthe contested decision shows the same discrepancy as that pointed out inparagraphs 1512 and 1513 above with regard to the specific exchanges of priceinformation at Cembureau meetings. 1636. Although in Article 2(2) the Commission finds those exchanges to be contrary toArticle 85(1) of the Treaty because they are designed 'to facilitate theimplementation of the [Cembureau] agreement, in the legal assessment of thoseexchanges in recital 47(b) it attributes a twofold objective to them:  'implementing the agreement on non-transhipment to home markets andon the regulation of sales from one country to another (recital 47,paragraph 13; see also recital 47, paragraph 15)  'prompting compliance [or getting competitors to comply] with the rules offair competition in [or for] inter-Cembureau exports (recital 47, paragraphs10 and 13). 1637. For the reasons set out in paragraph 1513 above, that discrepancy is however ofno significance. 1638. It is therefore necessary only to examine, in the light of the terms of Article 2(2),whether the Commission was justified in finding the concerted practices relating tothe periodical circulation of information on prices in Cembureau countries to beanti-competitive, on the ground that they were intended 'to facilitate theimplementation of the [Cembureau] agreement. It is pointless to examine thearguments of the applicants to the effect that such periodic exchanges of price listswere neither capable of nor intended to encourage compliance with the rules of faircompetition for exports between Cembureau members. 1639. In recital 47, paragraph 13, second and third subparagraphs, of the contesteddecision, the Commission sets out the reasons which led it to consider that, from1984, the object of the periodic exchanges of price information was to facilitate theimplementation of the Cembureau agreement: '... Even if the exchange of information began in 1981, the Commission cannot inits assessment ignore the fact that the exchange of information continued after thediscussions at the Head Delegates meetings (see recitals 16, 17 and 19) and thatit is a suitable means of implementing the agreement on non-transhipment to homemarkets and on the regulation of sales from one country to another ... As pointed out in paragraph 1 above, the discussions at the meetings of HeadDelegates related essentially to the need to avoid the risks of any increase inimports, to check the causes of conflicts and to reduce price differences so as toprevent any temptation to export. 1640. The fact that, on the one hand, periodic exchanges of price information continuedafter the Head Delegates meetings at which the Cembureau agreement wasadopted and price differentials between the various member countries werediscussed, and that, on the other, those exchanges were such as to ensure the implementation of that agreement therefore means, in the Commission's opinion,that as from that time they intended to implement that agreement. 1641. So far as concerns the temporal aspect, it is not disputed that the periodicexchanges of price information took place after the Head Delegates meetings of1983 and 1984, at least until the end of 1988 (see, in particular, documents33.126/15066 and 15096, cited in recital 16, paragraphs 8 and 9, of the contesteddecision). 1642. As regards whether those periodic exchanges were capable of ensuringimplementation of the Cembureau agreement, the CPRF in fact enabled anundertaking with an order from a potential customer in another member countryto know the general level of prices in force at that time in that country and to alignits export prices accordingly, so as to dissuade that customer from seeking cementoutside his country, and so avoid competing with local producers. Simple knowledgeof official or average prices in force on the market in question, which the systemof periodic exchanges of information organised by the CPRF offered for eachCembureau member country, sufficed for those in the trade in order to pitch theirexport prices at a sufficient deterrent level in order to comply with the Cembureauagreement, without the need to have detailed knowledge of the prices actuallycharged on the various markets by local producers. 1643. Furthermore, even though, according to Cembureau, 'the price structures andcement types chosen as references by each country were so different that all thecomparisons which have been carried out have proved erroneous (contesteddecision, recital 16, paragraph 22; document 33.126/15097), the CPRF wereundeniably a good indicator of trends in the price differences between the variousmember countries of Cembureau which the Head Delegates, at their meetings of14 January 1984 and 19 March 1984, had considered 'desirable gradually toreduce in order to eliminate the 'temptation to export (memorandum to theChairman for the Head Delegates meeting of 19 March 1984; contested decision,recital 19, paragraph 9, and recital 47, paragraph 1; document 33.126/11728). 1644. In those circumstances, the Commission was right to consider that, with effect fromthe Head Delegates meetings referred to in recital 19 of the contested decision,one of the objectives assigned to the system for the periodic exchanges of priceinformation had been to ensure the implementation of the Cembureau agreementadopted at those meetings. The fact that the system had been in place well beforethe adoption of the Cembureau agreement did not preclude the Commission fromfinding  without the need to show that a change had taken place in the way thatsystem functioned  that, from the moment when the Cembureau agreement hadbeen adopted, one of the functions of such periodic exchanges of price informationwas to facilitate the implementation of that agreement. The Commission was thusjustified in finding that from that time the system of periodic exchanges of priceinformation had taken over and subsequently extended the anti-competitive object pursued by the discussions which took place during the Head Delegates meetingsof 14 January 1983 and 19 March 1984 on 'the risks entailed by an increase incertain imports coupled with a sharp reduction in certain prices (Chairman's draftintroductory statement for the Head Delegates meeting held on 14 January 1983;contested decision, recital 19, paragraph 5; document 33.126/11584), on the'pressure from inter-member trade (notes of the Head Delegates meeting of 19March 1984; contested decision, recital 19, paragraph 10; document 33.126/11736),and by the specific exchanges of price information at those two meetings. 1645. The validity of that assessment is borne out by a document included among thosecited by the Commission in recital 16 of the contested decision in order to illustratethe circulation of price information between Cembureau members. 1646. The table headed 'Domestic prices (exclusive of tax) distributed at the HeadDelegates meeting of 14 January 1983 (contested decision, recital 16, paragraph 5;document 33.126/11599) refers to 'Prices listed Cement Price Reference File. Thedata contained in the CPRF were thus used in compiling that document, whichserved as an aid for the discussions during that meeting which sought to 'assess therisks entailed by an increase in certain imports coupled with a sharp reduction incertain prices, before this phenomenon has had time to spread in extent andgravity (Chairman's draft introductory statement for the Head Delegates meetingheld on 14 January 1983; contested decision, recital 19, paragraph 5; document33.126/11585). It is thus clear from that table that the data in the CPRF wereemployed for the anti-competitive object of the discussions which took place, inparticular with regard to prices, at the Cembureau Head Delegates meetings on thesubject of the intra-European trade situation. 1647. In conclusion, the Commission, having given adequate reasons, was entitled to findin Article 2(2) of the contested decision that the periodic exchanges of priceinformation on various Cembureau member countries were designed 'to facilitatethe implementation of the [Cembureau] agreement. 1648. Secondly, Aalborg complains that the Commission did not express a view on thearguments, submitted by Aalborg during the administrative procedure, that itsprices had been subject to supervision by the Danish competition authorities until1989 and that the prices sent to Cembureau had previously been approved by thoseauthorities and had been published. 1649. The Court points out, first of all, that in recital 16, paragraph 11, of the contesteddecision, the Commission reproduces the extract from Aalborg's reply to the SO(p. 13, footnote 2) in which Aalborg explains: 'The prices of Aalborg have until 1989 been subject to advance approval by theMonopoly Control Authorities, and revised price lists have been sent to Cembureauafter approval and publication in Denmark. 1650. In recital 47, paragraph 14, second indent, of the contested decision, it expressesa view on the observations made by 'some undertakings during the administrativeprocedure to the effect that 'the distribution of such price information [could not]have [had] any influence on the market, since the information [concerned] ... theprice lists approved by the authorities. 1651. It also explains, with regard to the Italian, Greek and Portuguese price lists whichwere also subject to State control at the time that: '... even though it is public, [the undertakings] felt it necessary to send theinformation and to have it circulated. If the undertakings deemed it necessary tohave the price lists for the trade in their country circulated, the reason is that suchcirculation of information was relevant to the discussions at the Head Delegatesmeetings, discussions which, as stated in paragraph 1 above, related to the need toavoid the risks entailed by an increase in imports, to identify the causes of conflictsand to reduce price differences so as to avoid any temptation to export. 1652. The view thus expressed applies necessarily also to Aalborg's price lists which,clearly, were not included with the Greek, Italian and Portuguese price listsbecause, unlike the latter lists, they concerned the individual price lists of the onlyDanish undertaking, which the Commission took into consideration under adifferent head (contested decision, recital 47, paragraph 14, first indent), ratherthan the price lists of 'the entire trade in that country (recital 47, paragraph 14,second indent). 1653. Aalborg's argument must therefore be rejected. 1654. Thirdly, BCA submits that, although the changes to the price list were notified bythe CMF to Cembureau on 8 May 1985, undoubtedly before the entry into forceof that increase on 1 June 1985 (contested decision, recital 16, paragraphs 8(i) and21; document 33.126/15117), that increase had been announced in the press on 6March 1985, as shown by documents 33.126/15118 and 15119, referred to in recital16, paragraph 8(i), of the contested decision. BCA further complains that theCommission failed to fulfil its obligation to state reasons since it failed to explainwhy it had not taken account of facts put forward by BCA during the administrativeprocedure, namely that prices notified to Cembureau by the United Kingdomassociation were public and easily obtainable. 1655. The Court finds that documents 33.126/15118 and 15119 do in fact show that thechanges made to the price list in the United Kingdom on 1 June 1985 and notifiedto Cembureau by the CMF on 8 May 1985 had been announced by CMF in thepress on 6 March 1985. 1656. Moreover, in its reply to the SO (point 53, p. 35), BCA pointed out: 'Since the Common Price and Marketing Agreement (the CPMA) was registeredunder the Restrictive Trade Practices Act (having been examined by the UnitedKingdom Restrictive Practices Court) the current price schedules prevailing underthe CPMA (in addition to the CPMA itself) were available for public inspectionduring business hours at the offices of the Office of Fair Trading, the UKcompetition authority. All price changes made under the CPMA were registeredpromptly with the Office of Fair Trading and were also open to public inspection. 1657. If those statements had been taken into consideration by the Commission, theywould at the very most have led it to alter its assessment, in recital 47, paragraph14, third subparagraph, of the contested decision, of the characteristics of the 'priceaverages sent for ... the United Kingdom. They would not however have led it toreverse the factual findings set forth in recital 47, paragraph 13, following which itrightly concludes (see paragraphs 1639 to 1647 above), in Article 2(2) of thecontested decision, that the periodic exchanges of price information on the variousCembureau member countries were designed, from 1984, to facilitate theimplementation of the Cembureau agreement. 1658. Fourthly, Cembureau and Irish Cement claim that the Commission misunderstoodthe significance of the remark recorded in document 33.126/15097 and reproducedin recital 16, paragraph 22, of the contested decision which Cembureau made in itsnote accompanying the documents sent to the Commission on the periodiccirculation of price information. Cembureau claims that all it had intended to pointout was that a producer who knew the special features of his market was likely tomake greater use of the information in the CPRF than an undertaking operatingin another market without specific knowledge of that market, as is always the casewhere statistical information is concerned. In Irish Cement's view, the fact thatCembureau stated, in the note in question, that 'a cement producer who [was]familiar with the standards and with the costs of transport [could] of course makeuse of such prices does not, contrary to what the Commission maintains in recital47, paragraph 15, second subparagraph, of the contested decision, mean that theprice lists exchanged often allowed a perfect comparison of prices in variouscountries. In actual fact, Cembureau sought at most to explain that the comparisonsmade were erroneous because of the wide divergence between the price structuresand cement types chosen as a reference by the various Cembureau members. 1659. It must, however, be stated that neither Cembureau nor Irish Cement dispute that,according to the note in question, the prices provided by the CPRF for eachmarket could be used by the cement producers of the various Cembureau membercountries. The interpretations of that note put forward by those two applicants arethus not of such a nature as to invalidate the analysis set forth in paragraphs 1639to 1647 above as to the validity of the Commission's assessment, in recital 47,paragraph 13, of the contested decision, of the anti-competitive purpose assignedto the periodic exchanges of price information as from the Head Delegatesmeetings of 1983 and 1984. 1660. With regard to that note, BDZ also maintains that the Commission cannot rely,against it, on Cembureau's statement that 'a cement producer who [was] familiarwith the standards and with the costs of transport [could] of course make use ofsuch prices (contested decision, recital 16, paragraph 22, and recital 47, paragraph15; document 33.126/15097). The note did not concern German average prices,calculated and regularly published by the German National Statistical Office. 1661. It should, however, be observed that the extract in question refers withoutdistinction to all the price information described in the document preceding it(document 33.126/15096), which includes information on German average prices. 1662. In any event, BDZ's contention is not of such as nature as to invalidate the analysisset forth in paragraphs 1639 to 1647 above as to the correctness of the assessmentmade by the Commission in recital 47, paragraph 13, of the contested decisionregarding the anti-competitive purpose of the periodic exchanges of information onprices in the Cembureau member countries, including the distribution of Germanaverage prices, after the Head Delegates meetings of 1983 and 1984. 1663. BDZ's argument must, therefore, be rejected. 1664. Fifthly, Cembureau submits, in its reply, that the Commission, by stating in itsdefence that it objected to the exchanges of price information at Cembureau levelnot because they related to commercially confidential information but because theywere intended to facilitate the implementation of the Cembureau agreement,contradicts the wording of its order in Article 8 of the contested decision. ATICconsiders for its part that Article 8 reveals the error committed by the Commissionin its assessment of the nature of the price information referred to in Article 2(2),inasmuch as it enjoins the undertakings to bring to an end 'any exchange ofconfidential commercial information designed to monitor the performance of anyexpress or tacit agreement or any concerted practice involving the sharing ofmarkets in the Community. 1665. It should be pointed out that in Article 8 the Commission orders the 'undertakingsspecified in Articles 1 to 7 ... forthwith [to] bring the infringements referred to inthose Articles to an end (if they have not already done so) and ... henceforth [to]refrain, in relation to the markets for grey cement and white cement, from anyagreement or concerted practice which may have the same or similar object,including any exchange of confidential commercial information designed to monitorthe performance of any express or tacit agreement or any concerted practiceinvolving the sharing of markets in the Community. That order, a general one,applies to the whole of the conduct found in Articles 1 to 7 of the contesteddecision. No definitive conclusion may therefore be drawn from Article 8 as regardsthe Commission's assessment of the nature of the various kinds of price informationreferred to in Article 2(2). 1666. In any event, whatever interpretation or argument might be submitted on that pointon the basis of Article 8, the periodic exchanges of price information referred toin Article 2(2) were found to be unlawful because they were intended to facilitatethe implementation of the Cembureau agreement, an anti-competitive object whichwas in fact proved by the Commission (see paragraphs 1639 to 1647 above). 1667. The arguments put forward by Cembureau and ATIC must therefore be rejected. 1668. Sixthly, Cembureau complains that the Commission did not provide any evidencethat the periodic exchanges of price information had been used in order to alignprices or to ensure the implementation of the Cembureau agreement. Italcementiconsiders that, by failing to prove that its conduct had actually been influenced bythe periodic exchanges of price information at Cembureau level, the Commissionfailed to show the material factor distinguishing a concerted practice from anagreement, namely the existence of anti-competitive conduct on the part of theundertaking concerned. AGCI maintains that the periodic exchanges of priceinformation relating to the various Cembureau countries never hindered intra-Community movements of Greek cement, even when the Greek industryconsiderably increased its exports to the Community markets following the collapseof its traditional export markets. 1669. Those arguments, which assert the lack of proof of market conduct correspondingto the concerted action which took place and lack of restriction on trade, must berejected since they are based on a misconception of the requirements for provinga concerted practice within the meaning of Article 85(1) of the Treaty. 1670. As is clear from the very terms of Article 85(1) of the Treaty, a concerted practiceimplies, besides undertakings' concerting together, conduct on the market pursuantto that concerted practice, and a relationship of cause and effect between the two(Commission v Anic, cited in paragraph 270 above, paragraph 118, and Hüls vCommission, cited in paragraph 155 above, paragraph 161). 1671. However, subject to proof to the contrary, which it was for the parties concernedto adduce, it must be held that the price information exchanged periodically atCembureau level influenced the market conduct of the direct and indirect membersof Cembureau. That is all the more so since the concerted action in question tookplace on a regular basis over a long period and the direct and indirect members ofCembureau remained active on the market during that period (see, to that effect,the judgments cited in Commission v Anic, cited in paragraph 270 above, paragraph121, and Hüls v Commission, cited in paragraph 155 above, paragraph 162). 1672. Moreover, concerted practices such as those found in this case fall within the scopeof Article 85(1) of the Treaty, even in the absence of anti-competitive effects onthe market. 1673. First, it follows from the actual wording of that provision that concerted practicesare prohibited, regardless of their effect, where they have an anti-competitiveobject, as they do in the present case (see paragraphs 1639 to 1647 above). 1674. Next, although the very concept of a concerted practice presupposes conduct onthe market, it does not necessarily mean that that conduct should have the specificeffect of restricting, preventing or distorting competition (Commission v Anic, citedin paragraph 270 above, paragraphs 122 to 124, Hüls v Commission, cited inparagraph 155 above, paragraphs 163 to 165, and Montecatini v Commission, citedin paragraph 270 above, paragraphs 123 to 125). 1675. As regards the anti-competitive effects of those periodic exchanges of priceinformation, Aalborg maintains that the Commission infringed Article 190 of theTreaty by failing to explain in what way the concerted practices found inArticle 2(2) of the contested decision appreciably affected trade between MemberStates. 1676. That argument must be rejected for reasons analogous to those set out inparagraph 1536 above. 1677. Seventhly, SFIC claims that the Commission contradicts itself when it states, on theone hand, that the exchanges of information on minimum prices between Belgian,Dutch and Luxembourg producers were the result of concerted practices intendedto facilitate the implementation of the Cembureau agreement (contested decision,recital 47(b) and Article 2(2)) and, on the other, that Ciments Luxembourgeois didnot introduce any measures to implement that agreement (contested decision,recital 65, paragraph 9(b)). 1678. The Court finds, however, that SFIC's observation is not of such a nature as toinvalidate the factual findings on which the Commission relied in recital 47,paragraph 13, of the contested decision in concluding, in Article 2(2), that from1984 the periodic exchanges of price information relating to the Benelux countrieswhich took place between Cembureau and its members, including SFIC, wereintended, just like the periodical circulation of information on the prices in themarkets of Cembureau's other European members, to facilitate the implementationof the Cembureau agreement. 1679. SFIC's argument must therefore be rejected. 1680. Eighthly, Unicem, referring to Case T-34/92 Fiatagri and New Holland Ford vCommission [1994] ECR II-905, paragraph 91, maintains that in a non-oligopolisticmarket such as the cement market the exchanges of information referred to inArticle 2(2) of the contested decision, in actual fact, had a positive effect oncompetition. 1681. However, it must be observed that the description of the cement market putforward by Unicem, unsupported by any reasons, is refuted by the Commission'sanalysis in recital 12, in particular paragraphs 3 and 5, of the contested decision,concerning the nature of supply on the cement market, an analysis which the Italianundertaking does not even attempt to refute. 1682. In any event, Unicem's claim is not of such a nature as to invalidate the analysisset forth in paragraphs 1639 to 1647 above as to the correctness of the assessmentmade by the Commission in recital 47, paragraph 13, of the contested decisionregarding the anti-competitive purpose of the periodic exchanges of priceinformation from 1984 onwards. D  The participation of the applicants in the infringement referred to inArticle 2(2) of the contested decision 1683. Cembureau and the following direct members, FIC, VNC, CimentsLuxembourgeois, SFIC, Aalborg, BDZ, Unicem, BCA, Oficemen, Irish Cement,ATIC, Italcementi, Cementir and AGCI, are alleged to have committed theinfringement referred to in Article 2(2) of the contested decision. 1684. In the first place, as regards Aalborg (T-44/95), it should be recalled that, for thereasons set out in paragraph 368 above, documents 33.126/15096 to 15305, cited bythe Commission in recital 16, paragraphs 8 to 22, of the contested decision, maynot be used against it. Moreover, as has already been stated (paragraph 401above), the extracts from the replies of FIC and Irish Cement to the SO, cited atrecital 16, paragraphs 10 and 15 respectively, may not be used against Aalborg. Itmust therefore be ascertained whether, in the absence of those items of evidence,Aalborg's participation in the infringement referred to in Article 2(2) is established. 1685. First of all, as has already been pointed out (see paragraph 1597 above)document 33.126/15096, referred to in the SO and sent to the parties in thecourse of the administrative procedure, contains the succinct description,made by Cembureau in its note to the Commission accompanyingdocuments on the periodic exchanges of price information, of what priceinformation was provided by the European members of Cembureau(Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg,the Netherlands, Portugal, Spain and the United Kingdom) during theperiod 1984 to 1989, with a brief mention of the price system in force at thetime in each of those countries. 1686. So far as concerns specifically Denmark  Aalborg's country of origin  as well asBelgium and Ireland  the countries of origin of FIC and Irish Cement respectively the document states as follows: ' Belgium Photocopies of the prices from 1984 to 1986  more price increases after 1986 System of prices (full control until 1986, public price list sent on to Cembureau) Confirmation over telephone of prices once a year  Denmark Photocopies of the prices from 1984 to 1989  Prices communicated by Aalborg,sole producer System of prices (control) Prices changes approximately once a year, ordinary cement prices supplied toCembureau  Ireland Photocopies of the prices for 1985 (no price changes since then, and nothing in1984) System of prices (practically free since 1986). 1687. In document 33.126/15097, large parts of which were reproduced in the SO (seeparagraph 1585 above), and which was also sent to the parties in the course of theadministrative procedure, Cembureau states as follows: 'We generally communicate prices only to our members. External requests alwaysoriginate from companies or consultants offices wishing to carry out pricecomparisons. Unfortunately, the price structures and cement types chosen asreferences by each country are so different that all the comparisons which havebeen carried out have proved erroneous. A cement producer who is familiar withthe standards and with the costs of transport can of course make use of such prices.However, we never carry out this work for our members. 1688. Finally, in connection with the objection raised against the periodic exchanges ofprice information at Cembureau level, there was also, among the documents sentin the Box (see paragraph 95 above) to the addressees of the SO, document33.126/15066, cited at recital 16, paragraph 9, of the contested decision. Thatdocument, which accompanied the documents sent by Cembureau to theCommission, dealing in particular with the periodic exchanges of prices, in responseto its request for information, states among other things: 'Please find attached, inAnnex 3, all the documents which we have been able to find concerning the information on domestic cement prices, received from our associates and passedon to our associates from 1984 to the end of 1989. 1689. The three abovementioned documents, 33.126/15096, 15097 and 15066, thus provethat Aalborg participated both actively (communicating information) and passively(receiving information) in the periodic exchanges of information on pricesapplicable in the Cembureau member countries throughout the period covered byArticle 2(2) of the contested decision. 1690. The anti-competitive purpose of those exchanges was proved by the Commissionon the basis of the factual findings set out in recital 47, paragraph 13, of thecontested decision (see paragraph 1639 above). Since Aalborg participated, as theDanish Head Delegate, in the Head Delegates meetings of 14 January 1983 and19 March 1984, those findings must be upheld in regard to it. 1691. It is clear from the foregoing that, without prejudice to the conclusions arrived atin paragraph 1593 above with regard to the findings in Article 2(2)(a) concerningthe periodic exchanges of price information on the Benelux countries, Aalborg'sparticipation in the infringement referred to in Article 2(2) is proven,notwithstanding the fact that the evidence mentioned in paragraph 1684 above maynot be used against it. 1692. Secondly, BDZ (T-48/95) claims never to have sent to its members  who allegedlynever asked it to do so  information gathered on the prices applicable on themarkets of the other Cembureau member countries; the information was of nocommercial interest whatsoever. 1693. However, it should be observed that, even supposing that that claim were true, itdoes not alter the fact that BDZ participated both actively (communicatinginformation on the average German prices (contested decision, recital 16,paragraph 13; documents 33.126/15096 and 15161 to 15167)) and passively(receiving information on the prices applicable in the other Cembureau membercountries) in the periodic exchanges of information on prices. 1694. BDZ's argument must therefore be rejected. 1695. Thirdly, Unicem (T-50/95) maintains that, since it did not participate in theCembureau agreement, it cannot be accused of having sought to 'facilitate theimplementation of that agreement by way of an exchange of information. 1696. It should be recalled that according to Article 2(2) of the contested decision, theparticipation of Cembureau and of its direct members to whom the decision wassent, including Unicem, in the concerted practices relating to the periodicexchanges of price information is held contrary to Article 85(1) of the Treaty inasmuch as it sought to facilitate the implementation of the Cembureauagreement. 1697. It is not disputed that Unicem did not attend the Head Delegates meetings of 1983and 1984, at which the Cembureau agreement was adopted (see paragraph 1406above). It is therefore not certain that on 1 January 1984, the date taken as thestart of the infringement referred to in Article 2(2), it had already acceded to thatagreement. 1698. On the other hand, as will be seen below (paragraphs 4243 to 4247), Unicem'saccession to the Cembureau agreement is established as from 9 September 1986.As from that date, Unicem must have participated in the periodic exchanges ofprice information referred to in Article 2(2), motivated by a desire to see theCembureau agreement applied. It therefore participated in the infringement asfrom 9 September 1986. 1699. In conclusion, Article 2(2) of the contested decision must be annulled in so far asit finds that Unicem participated, before 9 September 1986, in concerted practicesinvolving the periodic exchanges of information on prices in the Cembureaumember countries intended to facilitate the implementation of the Cembureauagreement. 1700. Unicem also observes that the Associazione Italiana Tecnico Economica delCemento ('AITEC), which collected and forwarded to Cembureau informationrelating to the Italian market, was not accused of having committed an infringementrelating to the periodic exchanges of price information. Accordingly, it claims thatthere is no reason to hold it liable for that infringement either. Unicem adds thatsuch a breach of the principle of equal treatment also affected its rights of defencein that it was allegedly forced to defend itself on its own in respect of conductwhich involved other parties possessing information essential for the conduct of thatdefence. 1701. None the less, the fact that AITEC was not charged with the infringement foundin Article 2(2) of the contested decision cannot absolve Unicem of its liability forthat infringement, provided that it is properly established (see, to that effect,Woodpulp II, cited in paragraph 106 above, paragraph 146). 1702. Moreover, the fact that AITEC was not held responsible for the infringementrelating to the periodic exchanges of price information did not preclude Unicemfrom obtaining access, for example, through that association, to documents whichmight have supported its defence during the course of the administrative procedure. 1703. Unicem's arguments must therefore be rejected. 1704. Fourthly, BCA (T-54/95) claims that it has not been proven that it asked itsmembers for, or received from them, any price information or that it helped toforward such information to Cembureau. 1705. It should be pointed out, however, that the documents concerning the informationexchange system at issue include in particular a letter of 8 May 1985, whereby theCMF informed Cembureau of the changes to the price lists which were to enterinto force in the United Kingdom on 1 June 1985 (contested decision, recital 16,paragraph 21; documents 33.126/15115 and 15116). Next, Cembureau, in its noteto the Commission accompanying the abovementioned documents, states, withregard to the United Kingdom: 'We have not received any official communicationof prices since 1985 (contested decision, recital 16, paragraph 21; document33.126/15096). By contrary inference, that statement means that until 1985 theUnited Kingdom member of Cembureau, at that time the CMF, officiallycommunicated to Cembureau the prices applicable on its market. 1706. All those various factors therefore show the active participation of the CMF in theperiodic exchanges of price information organised at Cembureau level. Subject toexamination of BCA's argument contesting the duration of its participation in theinfringement for which it is held liable in Article 2(2) of the contested decision (seeparagraphs 1743 to 1747 below), it must be held that the Commission was justifiedin finding that BCA, as successor to the CMF (see paragraphs 1337 to 1341 below),participated in that infringement. 1707. Fifthly, Oficemen (T-59/95) maintains that the sending by the Belgian, Dutch andLuxembourg producers of information on their prices to Oficemen and, through it,to the Spanish producers cannot be deemed to constitute a concerted practicecontrary to Article 85(1) of the Treaty, since the Spanish producers were not actualor potential competitors of the Benelux producers. Irish Cement (T-60/95) andItalcementi (T-65/95) submit that the information on the Benelux countries' pricesnever had any particular value for them at a competitive level, since they had neverexported to those countries or even contemplated doing so. Irish Cement criticises,in this regard, the reference made by the Commission to the judgment in CaseT-6/89 Enichem Anic v Commission [1991] ECR II-1623, paragraphs 213 to 220, infootnote 215 to the contested decision when it alleged that Irish Cement hadparticipated, together with other undertakings and associations, in a concertedpractice relating to the periodic exchanges of price information on the Beneluxcountries (recital 47, paragraph 12). It states that the Commission did not seek toascertain whether its participation in the alleged infringement was liable to restrictcompetition. 1708. The Court points out first of all that, although the applicants claim that they  or,in the case of Oficemen, its members  were neither actual nor potentialcompetitors of the producers in the Benelux countries, they do not argue that theywere neither actual nor potential competitors of producers from other markets about whose prices information was circulated through the CPRF. The informationexchanged via the CPRF could thus have been useful to Oficemen and itsmembers, to Irish Cement and to Italcementi from the point of view of observingthe Cembureau agreement vis-à-vis those other markets. 1709. In any event, the claims made by Oficemen, Irish Cement and Italcementi are notof such a nature as to conceal the fact that they participated both actively andpassively in the periodic exchanges of information on prices nor to refute thefindings of fact on which the Commission relied in recital 47, paragraph 13, of thecontested decision in concluding that, following the Head Delegates meetings of1983 and 1984, the system of periodic exchanges of price information atCembureau level was intended, as regards Cembureau and its members, includingOficemen, Irish Cement and Italcementi, to facilitate the implementation of theCembureau agreement, findings which are corroborated by the analysis inparagraphs 1639 to 1647 above. 1710. The arguments put forward by Oficemen, Irish Cement and Italcementi musttherefore be rejected. 1711. Sixthly, as regards Irish Cement (T-60/95) again, it should be recalled that, for thereasons set out in paragraph 401 above, Annex 2b to Cembureau's reply to the SO,cited in recital 16, paragraph 11, of the contested decision, and the extracts fromthe replies of FIC, Aalborg and BDZ to the SO, cited in recital 16, paragraphs 10,11 and 13 of the contested decision respectively, constitute evidence which may notbe used against it. The Court must therefore ascertain whether, in the absence ofthose items of evidence, Irish Cement's participation in the infringement referredto in Article 2(2) is established. 1712. The extract from FIC's reply to the SO, cited in recital 16, paragraph 10, of thecontested decision, merely sets out the passage from Cembureau's note referred toin paragraph 1588 above (document 33.126/15096)  a memorandum which hadbeen sent to the addressees of the SO during the administrative procedure andwhich is therefore admissible against Irish Cement  and which says that, so far asconcerns Belgium, 'confirmation [was given] of prices by telephone once a year. 1713. Annex 2b to Cembureau's reply to the SO is used by the Commission in recital 16,paragraph 11, of the contested decision in order to show that the prices sent toCembureau by the Danish undertaking Aalborg (see documents 33.126/15183 to15188 and 15244 to 15249) were then reproduced by Cembureau in the CPRF andsent out to all its members. The extract from Aalborg's reply to the SO, cited in thesame place in the contested decision, explains that 'the prices of Aalborg have until1989 been subject to advance approval by the Monopoly Control Authorities, andrevised price lists have been sent to Cembureau after approval and publication inDenmark. The fact that those two documents may not be used against IrishCement does not preclude the finding following from reading document 33.126/15066 in conjunction with 15096 and 15097  all of which may be usedagainst Irish Cement for the reasons set out in paragraphs 1685, 1687 and 1688above  namely that, so far as concerns Denmark, Cembureau had received fromAalborg, the 'sole producer (document 33.126/15096), and then sent on to its'members/'associates (documents 33.126/15066 and 15097), including IrishCement, the 'ordinary cement prices from '1984 to 1989 (document33.126/15096). 1714. BDZ's reply to the SO, cited in recital 16, paragraph 13, of the contested decisionmerely confirms the information in the Cembureau note referred to in paragraph1588 above, according to which 'the price average supplied to Cembureau by theGerman Association [was] the price average calculated by the German NationalStatistical Office (document 33.126/15096). 1715. It is clear from the foregoing (paragraphs 1712 to 1714) that, without prejudice tothe conclusions set out in paragraph 1593 above as to the findings in Article 2(2)(a)regarding the periodical circulation of price information on the Benelux countries,the fact that the various items of evidence referred to in paragraph 1711 above maynot be used against Irish Cement does not preclude the finding that Irish Cementparticipated in the system of periodic exchanges of information on prices, includingBelgian prices, the 'Danish producer's individual price-lists and the 'averageprices charged in Germany (Article 2(2)(b)). 1716. Seventhly, Italcementi (T-65/95) claims that AITEC did not receive any mandatefrom its members to communicate the data on Italian prices to Cembureau. 1717. The Court points out, however, that AITEC was not a member of Cembureau. Itcould not therefore have decided on its own initiative to pass on information on theItalian prices to Cembureau. As the Commission rightly points out in recital 16,paragraph 16, of the contested decision, AITEC was responsible for passing on thatinformation to Cembureau 'on behalf of the Italian members of Cembureau,including Italcementi. Moreover, Italcementi does not deny having received, as adirect member of Cembureau, regular information on the prices in force in theother Cembureau member countries during the period under consideration. It isthus proved that Italcementi participated both actively and passively in the periodicexchanges of information on prices organised at Cembureau level. 1718. Italcementi's argument must therefore be rejected. 1719. Eighthly, Italcementi (T-65/95) and Cementir (T-87/95) deny that they participatedin the concerted practices referred to in Article 2(2) of the contested decision, onthe ground that, since prices are subject to control on their market, the informationgathered on prices in the other Cembureau member countries could not haveinfluenced their commercial conduct. AGCI (T-103/95) submits that, on account ofthe system of price controls in force at the time in Greece, it was impossible for its members to align their prices on those of local producers so as to ensureapplication of the home-market rule. 1720. That argument cannot be accepted. 1721. First of all, it is common ground that the systems of price controls in force inGreece and in Italy during the period under consideration related only to domesticprices and excluded export prices. Information on the prices received from thevarious Cembureau member countries were therefore of interest to both the Greekand the Italian undertakings which, in the event of an order from customers basedabroad, had available, in the shape of the CPRF, a useful reference tool to enablethem to adapt their export prices with a view to complying with the Cembureauagreement. 1722. Next, the existence of a system of State control of prices in Greece and Italy didnot preclude the cement industries of those countries from contributing, inaccordance with the wish expressed at the Head Delegates meetings of 14 January1983 and 19 March 1984, to the gradual reduction of the gap between the pricesof the various Cembureau member countries by taking into account the generaltrends identified in the CPRF when requesting price increases from their publicauthorities. 1723. Ninthly, the three Italian producers Unicem (T-50/95), Italcementi (T-65/95) andCementir (T-87/95) deny that their participation in the periodic exchanges of priceinformation could have had an anti-competitive nature linked to compliance withthe Cembureau agreement, since they did not export to the other Communitymarkets. 1724. That argument cannot be accepted. 1725. First of all, the alleged absence of export activities by those Italian cementproducers in the Community may be explained, at least in part, by their concernto respect the home markets of the other Cembureau members, in accordance withwhat had been agreed at the Head Delegates meetings of 1983 and 1984. Theinformation exchanged on the prices applicable in the various Cembureau membercountries could thus be of interest to the Italian producers who, faced with possibleorders from customers from other Community markets, had available, through suchinformation, the necessary data to align their export prices with a view to complyingwith the Cembureau agreement. 1726. In any event, even supposing that the Italian cement producers did not export atthat time, and whatever the reasons for that decision, those producers did have aninterest in making known to the other Cembureau members the prices applicableon their market, so that any foreign competitors could take into account that information in order to comply with the Cembureau agreement with regard to theItalian market. 1727. Next, the fact that, at a given time, undertakings adopting conduct restrictive ofcompetition did not have any interest in intra-Community trade does not supportthe conclusion that the conduct in question was not likely to affect trade betweenStates, given that the situation may vary from one year to the next as changes inthe conditions or composition of the market occur, both in the common market asa whole and in the various national markets (see Case 19/77 Miller v Commission[1978] ECR 131, paragraph 14, and AEG v Commission, cited in paragraph 364above, paragraph 60). 1728. Tenth, AGCI (T-103/95) explains that, because of the abnormally low prices on itsmarket, the Greek industry had not felt any need to protect itself against possibleimports or to respect any market-sharing rule. It adds that the conduct of itsmembers throughout the period in question did not make it possible to assert that,as far as they were concerned, the purpose of the periodic exchanges of priceinformation had been to promote the application of the home-market rule. Priorto 1985 the Greek industry had not been interested in the Community markets.After 1985, driven by its economic interests, it exported massively to theCommunity markets, in defiance of the home-market rule. 1729. In this regard, the Court points out, first of all, that only the direct members ofCembureau to whom the contested decision is addressed are accused of theinfringement referred to in Article 2(2). As regards the Greek market, AGCI wasthus alone in being charged with that infringement; its member undertakings werenot. 1730. In those circumstances, the conduct adopted by the Greek undertakings with regardto the Community markets during the period covered by Article 2(2) cannot betaken into consideration when assessing whether AGCI did in fact participate in theinfringement in question. 1731. So far as concerns specifically that participation, it must be observed that, afterhaving taken part in the Head Delegates meetings of 1983 and 1984, AGCIcontinued to participate actively throughout that period in the periodic exchangesof price information by sending 'all the price changes for three types of cement(contested decision, recital 16, paragraph 14; documents 33126/15291 to 15305) see also Cembureau's note accompanying the documents sent to the Commissionon those periodic exchanges, which states in respect of Greece: 'Photocopies forprices from 1984 to 1989 (contested decision, recital 16, paragraph 8; document33.126/15096). In so doing, it helped to highlight the gap between the prices of thevarious member countries which it had been deemed desirable, at those HeadDelegates meetings, to reduce gradually in order to prevent any temptation to export. Its participation in the infringement referred to in Article 2(2) of thecontested decision is thus proved. 1732. AGCI's arguments must accordingly be rejected. 1733. AGCI further criticises the Commission for not having drawn a distinction in theoperative part of the contested decision (Article 2(2)) between the associationswhich were members of Cembureau, according to the gravity of the exchanges ofprice information in which they participated (Benelux countries  other markets),when such a distinction had been made in the legal assessment (contested decision,recital 47, paragraphs 6 to 15). 1734. In the light of the conclusions arrived at in paragraph 1593 above, there is nolonger any need to examine that argument. 1735. Finally, AGCI complains that the Commission did not take into consideration themeans used by the various members of Cembureau to transmit price information.In this connection, it points out that from 1987 SFIC transmitted its information toCembureau only by telephone, refusing moreover to have it published inCembureau's official documents (contested decision, recital 16, paragraph 12;document 33.126/15096). In AGCI's view, such a decision revealed that SFIC nolonger intended to transmit information on the prices applicable on its market tocertain members of Cembureau, including AGCI, in view of their or their members'activities on the French market. 1736. It must be stated that AGCI's line of argument is contradicted by the contents ofthe document to which it specifically refers. Although it is true that as from 1987,France 'no longer [wanted] to see these prices published in the Cembureaudocuments, the fact remains that 'they [could] be communicated by telephone tothe Members (contested decision, recital 16, paragraph 12; document33.126/15096). 1737. In any event, the fact that SFIC refused, as from 1987, to see information which itprovided on French price lists published in Cembureau's documents does not makeit possible to rule out AGCI's participation, both active and passive, in the periodicexchanges of price information throughout the whole period under consideration.Nor does it undermine the analysis set forth in paragraphs 1639 to 1647 above asto the correctness of the assessment made by the Commission in recital 47,paragraph 13, of the contested decision on the anti-competitive purpose pursuedby Cembureau and its members, including AGCI, through those exchanges of priceinformation, with effect from the Head Delegates meetings of 1983 and 1984. E  The duration of the infringement referred to in Article 2(2) of the contesteddecision 1738. On the basis of the documents supplied by Cembureau on the periodic exchangesof price information, the Commission considers that those exchanges lasted 'atleast from 1 January 1984 to 31 December 1988 (contested decision, recital 47,paragraph 12 and 15). In Article 2(2) it therefore finds that there was aninfringement between those two dates relating to periodic exchanges of priceinformation committed by Cembureau and its various direct members to which thecontested decision was sent, apart from Oficemen and ATIC, Spanish andPortuguese direct members, in respect of which it takes the infringement intoaccount only as from 1 January 1986, for the reasons set out in recital 45,paragraph 11, and recital 46, paragraph 3, of the contested decision. 1739. Unicem (T-50/95) points out that in the note referred to in paragraph 1588 above,Cembureau states that it was provided with no information from Italy for 1987 and1988 (document 33.126/15096). In the case of Unicem, the infringement found inArticle 2(2) of the contested decision could not therefore have continued until 31December 1988. 1740. The Court points out that the note in question, cited in recital 16, paragraph 8, ofthe contested decision, states with regard to Italy: 'Photocopies of the prices from1984 to 1986 (no price changes up to 1989, 1989 prices communicated bytelephone). It is clear from this that the communication of the Italian prices toCembureau continued beyond the date adopted by the Commission as marking theend of the infringement referred to in Article 2(2). 1741. Furthermore, Unicem does not deny having received, as a direct member ofCembureau, the information provided on the prices applicable in the otherCembureau member countries, at least until 31 December 1988. 1742. On those grounds, Unicem's arguments must be rejected. 1743. BCA (T-54/95) points out that, as may be seen from Cembureau's note, referredto in paragraph 1588 above, neither the CMF nor itself sent price list informationto Cembureau after 1985. BCA considers that the Commission failed to fulfil itsobligation under Article 190 of the Treaty to provide reasons, as it did not explainin the contested decision how, after having noted that the CMF had ceased toprovide price information to Cembureau after 1985, and failing evidence oftransmission of such information by the BCA to Cembureau at any time, it couldconclude that the CMF and BCA had participated in unlawful concerted practicesinvolving the exchange of prices without interruption throughout the period underconsideration. 1744. So far as concerns the alleged failure to provide reasons, it is nevertheless clearfrom recital 47(b) of the contested decision, which deals with the legal assessmentof the facts relating to the periodical circulation of price information, that inArticle 2(2) the Commission intended to find as an infringement not only active participation in such periodic exchanges through the supply of information onprices to Cembureau, but, more widely, involvement with the system of periodicinformation organised at Cembureau level, even if such involvement was restrictedto receiving information on the other markets. 1745. On the merits, the Court finds the fact of having remained involved in the systemof periodic exchanges of price information during the period under considerationwas sufficient proof of participation in the infringement found in Article 2(2)throughout that period. The periodic receipt of information on prices applicable inthe various Cembureau member countries brought data which could be used toensure application of the Cembureau agreement in cases of orders from potentialforeign customers and/or to seek to reduce gradually the various price levelsapplicable on the European market, in accordance with the wish expressed by theHead Delegates at their meetings of 14 January 1983 and 19 March 1984. 1746. However, in this case, although Cembureau stated in its note, mentioned inparagraph 1588 above, with regard to the United Kingdom, that it had 'notreceived any official communication of prices since 85 (contested decision, recital16, paragraph 21; document 33.126/15096), it is nevertheless the case that theCMF, and then BCA, remained involved, as members of Cembureau, in the systemfor the periodic exchanges of information throughout the duration of theinfringement found in Article 2(2). They thus continued to benefit, and to allowtheir members to benefit, at least until 31 December 1988, from the informationon the prices applicable on the various markets of the Cembureau membercountries, which could be used to comply with the Cembureau agreement. 1747. BCA's argument must therefore be rejected. 1748. The participation of Italcementi (T-65/95) in the Head Delegates meeting of 14January 1983 has not been established (see paragraphs 1347 to 1349 above).Moreover, as will be held below (paragraph 4224), there is no evidence, such asevidence showing that Italcementi participated in a measure implementing theCembureau agreement, to prove that it had acceded to that agreement beforetaking part in the Head Delegates meeting of 19 March 1984, at which theagreement was confirmed. 1749. Since the periodic exchanges of price information were found to be infringementsin Article 2(2) of the contested decision in that they had been designed to facilitatethe implementation of the Cembureau agreement, the Commission had no basis forfinding that Italcementi participated in the infringement in question before 19March 1984. 1750. It follows that Article 2(2) of the contested decision must be annulled in so far asit finds that Italcementi participated in the concerted practices involving theperiodic exchanges of price information before 19 March 1984. 1751. Cementir (T-87/95) complains that no reasons whatsoever are given in thecontested decision as regards the duration of the infringement relating to theperiodic exchanges of price information. 1752. It should none the less be observed that, so far as concerns the periodic exchangesof information on prices in the Benelux countries, the Commission states (contesteddecision, recital 47, paragraph 12): 'According to the price information supplied by Cembureau, covering the period1984 to 1988 for these countries (doc. 33126/15096), this infringement lasted atleast from 1 January 1984 to 31 December 1988. 1753. As for the periodic exchanges relating to the prices of the other Cembureaumember countries, it states (contested decision, recital 47, paragraph 15): 'In the context described above, the circulation of information on price lists, anarrangement which according to the documents available was engaged in at leastfrom 1984 to 1988, constituted, from 1 January 1984 to 31 December 1988, aconcerted practice between Cembureau and its members, identified in paragraph5 above. 1754. Those statements constitute an adequate statement of reasons with regard to theduration of the concerted practices found in Article 2(2). 1755. Cementir's argument must therefore be rejected. Access to the file 1756. Cembureau (T-26/95), FIC (T-30/95), VNC (T-32/95), SFIC (T-36/95), Aalborg(T-44/95), Unicem (T-50/95), Irish Cement (T-60/95), ATIC (T-63/95), Italcementi(T-65/95) and Cementir (T-87/95) put forward a series of observations based ondocuments which they were able to consult following the measures of 2 October1996 and 18 and 19 June 1997 regarding access to the file (see paragraphs 164 and168 above). They sought to show that, by granting them only limited access to theSO and to its investigation file during the administrative procedure, the Commissioninfringed their rights of defence when it found the infringements alleged inArticle 2 of the contested decision, since they did not have access to exculpatorydocuments. 1757. Those parties put forward essentially eight arguments to that effect. 1758. First, they all claim that several of the documents to which they were given accessfollowing the abovementioned measures of organisation of procedure would haveenabled them to show that, because of their general and approximate nature, the price information which was exchanged specifically and periodically at Cembureaulevel was of no commercial value or use, and that they could not have pursued theanti-competitive object alleged in the contested decision. 1759. Cembureau also states, in its observations of 10 February 1997, that the documentsrelating to price information included in the national files corroborate its argumentthat the information distributed through the CPRF was of an average statisticalnature incapable of facilitating any price alignment or market-sharing agreements.Those documents also enabled it to substantiate its argument that it was difficultto draw market price comparisons between the various European countries,different types and qualities of cement and between different methods of delivery. 1760. Cembureau refers in this connection to a letter, in the file on France, which hadbeen sent to it by SFIC on 27 November 1986 and which provides information onprices for four categories of cement following increases applied between 1 July and1 November 1986 (document 33.126/14938). According to Cembureau, the pricesmentioned in that document, like those appearing in documents 33.126/15026,15029, 15040 to 15051, were average prices. If its purpose in disseminating thatinformation had been to enable the producers of various countries to align theirprices, it would have been necessary to send them a range of prices rather than aweighted average. Cembureau further states that SFIC had price data that wasmuch more detailed than that which it sent to Cembureau, but that data was onlysent to the French authorities to enable them to monitor trends in the nationaleconomy. Cembureau also states that a letter of 25 November 1986 from the CMFto the OFT (see paragraph 1147 above), found in the United Kingdom file, atteststo the difficulties encountered in attempting to compare prices between MemberStates (documents 33.126/17641 to 17654). 1761. In its observations of 28 November 1997, it submits that the documents to whichit was able to obtain access following the measure of 18 and 19 June 1997demonstrate that there were a great variety of factors, such as transport costs,rebates, product specifications and sale conditions, which had a significant andvarying impact on the pricing of cement, from one Member State to another, andeven from one producer to another within a single State. To illustrate the extentto which transport costs can vary, it refers to documents 33.126/14536 (list oftransport rates for a French producer) and 17905 to 17917 ('Typical example ofinternal haulage rates per tonne from Castle Ketton works for 1989 by various loadsizes). In support of its claims in relation to the great diversity in commercialpolicies on rebates and discounts, it relies on documents 33.126/4982/54 to 70 (notefrom a French producer on its 'commercial policy), 17881 to 17886 ('CastleCement Limited specific terms  1990), 11221 to 11223 (internal Blue Circlememorandum of 12 April 1989 entitled 'Cement Pricing, a letter of 15 December1988 from Blue Circle to RMC concerning 'BCC price and rebate proposals toRMC 1 January 1989 to 31 December 1989) and 17436 to 17438 (documents fromRugby on 'Quantity rebate scales 1990, 'Merchant rebates and 'Off-invoice discounts). In support of its arguments on the differences in technicalspecifications, it refers to documents 33.322/1410 to 1412 (minutes of a meeting of6 March 1987 between Spanish and Portuguese cement producers) and33.126/17623 to 17625 (draft letter of 6 September 1985 from the CMF to theOFT). In order to show the great diversity in conditions of sale, it submitsdocuments 33.126/17368 to 17431 (documents from Rugby between 1985 and 1990showing the prices set for a variety of cement products), 17888 and 17889 (letterof 10 May 1985 from Ribble Cement containing 'cement prices in Great-Britain)and 4853 ('factory price list for February 1988 of a French producer). Cembureauclaims that, if it had had access to those documents during the administrativeprocedure, it would have been able to use them in support of the arguments it putforward in its defence to the effect that the data exchanged between its membersthrough its offices, specifically (for the Head Delegates meetings) and periodically(through the CPRF), could not reasonably have had the object or effect of servingthe anti-competitive objectives alleged in the SO and in recital 47 of the contesteddecision, since they did not contain the many elements involved in fixing actualprices to customers. 1762. FIC states, in its observations of 10 February 1997, that certain documents of theUnited Kingdom file confirm that the exchange of statistics at Cembureau level hadconcerned general data, with no commercial significance or value, so that there wasnothing reprehensible about it. It relies, in that regard, on the minutes of the CMFmeeting of 2 October 1985 (documents 33.126/17092 to 17098), which sets out thecriticisms made by the chairman of Cembureau of its members for their unequalcontribution to the statistics exchanged for the 'Cembureau European AnnualReview. It makes reference not only to documents 33.126/17623 to 17625 and17641 to 17653, mentioned in paragraphs 1760 and 1761 above, but also to a letterof 22 September 1986 from the OFT to the CMF (documents 33.126/17635 to17638). Those various documents are claimed to illustrate the anodyne andapproximate nature of the data exchanged through Cembureau. The documentsrelating to the SO's chapter on France (see in particular document 33.126/14938,referred to in paragraph 1760 above) also confirms the lack of commercialimportance of the statistical exchange organised by Cembureau and theapproximate nature of the data provided by its members, including SFIC. 1763. In its observations of 10 February 1997, VNC illustrates its arguments in thatrespect by reference to documents 33.126/14938, 17623, 17635 to 17637 and 17641to 17653, referred to in paragraphs 1760, 1761 and 1762 above. 1764. In its observations of 7 January 1998, SFIC relies on an extract from the minutesof the sixth meeting of the CLC on 7 July 1977 (documents 33.126/2545 to 2548),and on the minutes of the 'Pricing Working Party meeting of 26 July 1978(documents 33.126/2591 to 2609) to show the wide diversity in cement prices amongthe nine Community Member States at that time. 1765. Aalborg, in its observations of 12 January 1998, points to a series of documentswhich it claims show that many factors of major significance in the setting ofcement prices were not included in the information on prices distributed throughCembureau. It thus mentions not only documents 33.126/4853, 11221 to 11223,17436 to 17438 and 17881 to 17886, referred to in paragraph 1761 above, but alsoLafarge documents (documents 33.126/4850 to 4852) as well as correspondencebetween Blue Circle and its customer RMC (documents 33.126/11224 to 11241),in order to show the influence of rebates on the setting of prices, and theirconfidential and personal nature in relation to each customer. It goes on to citedocuments 33.126/17905 to 17917, mentioned in paragraph 1761 above, a CBRmemorandum from 1981 (documents 33.126/7555 and 7556), a Lafarge study(documents 33.126/4869 to 4910), a draft letter of 21 June 1983 from the NCHcompany to the Commission (documents 33.126/5038 to 5051), as well as a letterof 6 October 1986 from Blue Circle to the OFT (documents 33.126/11119 to 11121)in order to show the relative importance of transport costs in the make-up ofcement prices. Finally, it relies on documents 33.126/17624, 17625 and 17641 to17653, mentioned in paragraphs 1760 and 1761 above, and on the abovementionedletter of 6 October 1986 from Blue Circle to the OFT, in order to illustrate the factthat the differences in technical specifications made price comparisons betweenmember countries uncertain. Aalborg further points out that, according todocument 33.126/15170, the indications of the French prices were approximate, 'ex-works excluding taxes and covered by the following warning: 'These areapproximate average values  any comparison with previously published prices isunreliable and no significance attaches to any price differential between categories. 1766. Unicem puts forward, in its observations of 28 November 1997, a series ofdocuments intended to show that the data on prices distributed through Cembureauwere neither reliable, comparable nor useful for anti-competitive commercialpurposes, since they did not contain, nor could they contain, any indication oftransport costs, rebates, product quality and terms of sales and delivery, variableswhich are essential for assessing the actual sales prices applied. 1767. It shows the significance and the variability of:  transport costs in setting cement prices, relying on documents 33.126/5038to 5051, 11119, 17905 to 17917 et 4869 to 4910, mentioned in paragraphs1761 and 1765, as well as documents 33.126/9659, 8155, 9672, 9673 and 4994to 5000;  rebates, relying on documents 33.126/4982, 11221 to 11241 and 17437,mentioned in paragraphs 1761 and 1765;  the quality of the product, relying on documents 33.126/17624, 17625 and17641 to 17646, mentioned in paragraphs 1760 and 1761;  conditions of sales and delivery, referring to documents 33.126/4850 and4853, mentioned in paragraphs 1761 and 1765. 1768. In its observations of 5 January 1998, Irish Cement puts forward documents33.126/14536, 17905 to 17917, 17881 to 17886, 11221 to 11223, 17436 to 17438,17888 and 17889, mentioned in paragraph 1761 above, in order to illustrate the factthat a large variety of factors, such as product specifications, credit conditions,delivery costs and discounts have a considerable influence on the setting of cementprices in the various countries. 1769. ATIC states, in its observations of 10 February 1997, that the rare references to theexchanges of information in the national chapters of the SO and in the documentsin the national files make it clear that the information transmitted between thenational associations and Cembureau were anodyne. It refers to point 52 of the SO,contained in the chapter on Greece, to a letter of 10 July 1990 from AGCI toCembureau (documents 33.126/19395 to 19397), to a letter of 12 October 1989from AITEC to its members (documents 33.126/12051 and 12052), and to the letterof 27 November 1986 from SFIC to Cembureau (document 33.126/14938),mentioned in paragraph 1760 above. 1770. Italcementi submits, in its observations of 10 February 1997, that, in the nationalfiles, there were a number of documents which would have enabled it, during theadministrative procedure, to support its argument that the statistical datadisseminated through Cembureau was overall information of a general nature,relating in every case to the past, rather than individualised data on each and everyundertaking. In particular, it would have been better able to show that theinformation to which it had access at Cembureau level was totally devoid of anycommercial usefulness, since it did not give any indication as to rebates or paymentterms. It claims that documents 33.126/15026 and 15040 to 15051, mentioned inparagraph 1760 above, document 33.126/15025, and the letter of 27 November 1986from SFIC to Cembureau (document 33.126/14938), mentioned in paragraph 1760above, indicate that the information provided in respect of the French marketconsisted of approximate figures, and when sent to Cembureau was accompaniedby the following warning: 'any comparison with previously published prices isunreliable and no significance attaches to any price differential between categories.It refers also to the draft letter from the CMF to the OFT (documents33.126/17624 and 17625), mentioned in paragraph 1761 above, containing a fullexplanation of the various factors which made it impossible to make anycomparison of sales prices of cement in the various Member States. It also refersto the extract from the minutes of the CMF meeting of 2 October 1985 (document33.126/17097) mentioned in paragraph 1762 above, relating to the statements of theChairman of Cembureau complaining about the unequal contribution of themembers to the exchanges of statistics for the 'Cembureau European AnnualReview. 1771. In its observations of 26 November 1997, Italcementi claims first that a Lafargememorandum of 7 October 1986 (documents 33.126/4919 à 4921) shows just howlittle use was the information on prices collected through Cembureau: 'Subject:Cement prices in Europe. The enclosed table brings together the informationcollected in respect of each country by the most reliable means. In the absence ofmore precise information, those are the figures published by Cembureau.Documents 33.126/17370 to 17374, mentioned in paragraph 1761 above, indicatethat because of various factors prices in a single company could vary widelyaccording to the customer or the sales area. Document 33.126/3826 shows, for itspart, in the view of the applicant, that hundreds of pages were sometimes necessaryto describe the pricing policy of a single company, which proves that the pricestransmitted by Cembureau could not have favoured comparisons with anti-competitive objectives. Finally, documents 33.126/17396 to 17399, 14536 and 4853,mentioned in paragraph 1761 above, show that the extreme simplification of thedata provided by Cembureau (no mention of essential elements such as VAT,transport costs, discounts and terms of sale) is in marked contrast to the complexityof the structure of the prices actually applied by each individual undertaking. 1772. Cementir refers, in its observations of 29 December 1997, to documents33.126/4982/54 to 70, 4869 to 4910, 14536, 4850 to 4853 and 17905 to 17917,mentioned in paragraphs 1761 and 1765 above, document 33.126/17918, and todocuments 33.126/4919, 4920, 4954 to 4982 and 3826, which it claims show that theprices of a single company could vary greatly, in particular according to the locationof its factory or customer, rebates, transport costs, payment methods, type ofpackaging, services provided according to product type, distribution system, nationaland/or local taxes and charges, etc. The data provided by Cembureau, which didnot include those various factors, would thus have been of no use in determiningwith precision what price was actually applied by the various cement producers. 1773. The Court points out, however, that the various elements put forward by theapplicants all relate to arguments which were duly taken into account by theCommission in the contested decision. At recital 16, paragraph 22, the Commissionsets out the extract included in the memorandum which Cembureau had sent withthe documents on the circulation of price lists: 'Unfortunately, the price structuresand cement types chosen as references by each country are so different that all thecomparisons which have been carried out have proved erroneous (document33.126/15097). In recital 47(b)(ii), it expresses a view on the observations madeduring the course of the administrative procedure by the addressees of the SOwhich had argued that 'the distribution of ... market price lists, which generally[related] to current prices and not to future prices, [had] no effect on competition,or less effect than the direct exchange of price information between theundertakings (recital 47, paragraph 13) and that 'the distribution of such priceinformation [could not have had] any influence on the market, since theinformation is not individualised, giving in some cases the price lists approved by the authorities and in others price averages (contested decision, recital 47,paragraph 14). 1774. With regard to Aalborg and Italcementi, it should be added that the particulars indocuments 33.126/14938 and 15170 on French prices  documents which werementioned in paragraphs 1765 and 1770 above  are set forth in full in recital 16,paragraph 12, of the contested decision. 1775. Despite those various arguments, the Commission was justified in concluding (seeparagraphs 1515 to 1519 and 1639 to 1647 above), in the light of the factualfindings in recital 47, paragraphs 1, 4 and 13, of the contested decision, that thespecific and periodic exchanges of price information referred to in Article 2(1) and(2) were designed, contrary to Article 85(1) of the Treaty, 'to facilitate theimplementation of the [Cembureau] agreement (Article 2 of the contesteddecision). 1776. Any additional comments which the applicants could have made at the time inorder to emphasise the general and approximate nature of the price informationexchanged, specifically and periodically, at Cembureau level, could not thereforehave had even a small chance of altering the outcome of the administrativeprocedure. 1777. Finally, document 33.126/15170, put forward by Aalborg, was accessible throughoutthe course of the administrative procedure (see paragraph 250 above). Aalborgcould thus have used it to support its reply to the SO. In those circumstances, itcannot now rely upon it to prove that its rights of defence were infringed during thecourse of the administrative procedure. 1778. Secondly, Cembureau points out, in its observations of 10 February 1997, that areport of the CMF meeting of 11 February 1987 (documents 33.126/17203 to17205) records the suspension, pending legal advice, of the transmission of priceinformation by CMF to Cembureau in the light of the ending of the CPMA (seeparagraph 91 above). It considers that, if it had been aware of that documentduring the course of the administrative procedure, it would have been justified inclaiming that it was highly unlikely that the CMF (and its members) wouldconsciously participate in illegal arrangements at European level, when it wastaking such care to comply with competition law, both at Community and nationallevel. 1779. However, the Court points out that, in recital 16, paragraph 21, of the contesteddecision, the Commission states that Cembureau had not received any officialcommunication of prices via the CMF since 1985 and that it obtained prices fromdifferent sources which they communicated as an approximate estimate bytelephone. 1780. Furthermore, any comments which Cembureau could have made during the courseof the administrative procedure as to the alleged concern of the United Kingdomassociation to comply with competition law could not have hidden the fact thatCembureau was actively involved in specific and periodic exchanges of priceinformation, which took place within it, or the fact that the United Kingdomassociation remained a member of the system for the periodic exchanges of priceinformation throughout the period of the infringement referred to in Article 2(2). 1781. Any comments which Cembureau could have made on the basis of the documentsmentioned in paragraph 1778 above could not therefore have had even a smallchance of altering the outcome of the administrative procedure. 1782. Thirdly, Cembureau refers, in its observations of 10 February 1997, to documentsfrom 1990 in the file on Greece (documents 33.126/19394 to 19401), concerning thesending of statistics by Titan to AGCI, and by AGCI to Cembureau, in which thereis no price information. 1783. However, that document, if it could have been put forward by Cembureau duringthe administrative procedure, would not have been of such a nature as to invalidatethe evidence contained in the bundle of documents referred to in recital 16 of thecontested decision, which shows that there were specific and periodic exchanges ofprice information, including Greek price information, at Cembureau level duringthe period under consideration. 1784. Fourthly, SFIC claims, in its observations of 10 February 1997, that it would havebeen useful for its defence if it had had available to it, during the administrativeprocedure, various documents from the files on Portugal (documents 33.322/1019and 1020, 1406 to 1408, and 1410 to 1412) and on Italy (documents 33.126/11919,11990 and 11991, 11993, 11994 and 11995) which concern the system of pricecontrol for cement in force in those two countries at the material time. It claimsthat those documents would have enabled it to show that, like the price informationwhich it transmitted to Cembureau, the information on price lists which it receivedfrom those two markets contained no sensitive data. In its observations of 7January 1998, SFIC also claims that a document from the Blue Circle file(documents 33.126/11007 and 11008), relating to the CPMA, would have enabledit to support its argument on the rigidity of prices in Europe as a result of the Statecontrol to which they were subject in a number of Member States during the periodunder consideration. 1785. In its observations of 12 January 1998, Aalborg puts forward documents33.126/15134 and 15135 in order to show that the Italian prices distributed viaCembureau had previously been published. It also produces document 33.126/15201in support of its contention that the Portuguese prices were fixed by the State andwere therefore totally transparent. 1786. It is however clear that the arguments put forward by SFIC and Aalborg concernmatters already taken into account by the Commission in the contested decision. 1787. Thus, in recital 16, paragraph 16, the Commission explains that, during the periodunder consideration, prices in Italy were subject, first, to a control system and,subsequently, from the end of 1985, to supervisory arrangements. It points out thatuntil 30 November 1985 AITEC sent to Cembureau the Italian prices 'asauthorised for the entire country by the public authority and officially publishedand that although, from December 1985, prices were no longer officially published,'each producer made it prices public and 'an AITEC announcement [was]published in the specialised press. 1788. In recital 16, paragraph 19, it notes that, in Portugal, prices were subject to thedeclared prices system up to 1987 and that, since then, they have been subject tothe 'price agreement system. 1789. In recital 16, paragraph 21, it points out that until February 1987 there existed aCommon Price and Marketing Arrangement among the United Kingdomproducers. Under that agreement, 'prices and terms of sale were decided on jointlyand notified to the British authorities. 1790. In recital 47(b)(i), the Commission expresses its view on the observations putforward during the course of the administrative procedure by some addressees ofthe SO, according to which 'the distribution of such price information [could not]have any influence on the market, since the information [was] not individualised,giving in some cases the price lists approved by the authorities and in others priceaverages (contested decision, recital 47, paragraph 14). It again points out that,'as regards Italy ... and Portugal, the price lists transmitted [were] those approvedby the public authorities and [related] to the entire trade in each country (recital47, paragraph 14, second indent), and that 'the price averages sent for ... theUnited Kingdom did not include any identification of producers (contesteddecision, recital 47, paragraph 14, third indent). 1791. The Court has already pointed out (see paragraph 1775 above) that despite thosevarious arguments the Commission was justified in concluding (see paragraphs 1515to 1519 and 1639 to 1647 above), in the light of the factual findings set forth inrecital 47, paragraphs 1, 4 and 13, of the contested decision, that the specific andperiodic exchanges of price information referred to in Article 2(1) and (2) weredesigned, contrary to Article 85(1) of the Treaty, 'to facilitate the implementationof the [Cembureau] agreement (Article 2 of the contested decision). 1792. Any comments which SFIC and Aalborg could have submitted during theadministrative procedure in order to illustrate the rigidity of the systems of pricecontrol and fixing in force in a number of Cembureau member countries during the period under consideration were therefore unlikely to have had even a smallchance of altering the outcome of the administrative procedure. 1793. As regards Aalborg, it should be added that documents 33.126/15134, 15135 and15201, which that applicant relies on in its observations of 12 January 1998 (seeparagraph 1785 above), were accessible to it during the administrative procedure(see paragraph 250 above). Aalborg could thus have used them in support of itsreply to the SO. In those circumstances, it cannot now rely upon them to prove thatits rights of defence were infringed during the administrative procedure. 1794. For its part, ATIC maintains, in its observations of 10 February 1997, that had thedocuments referred to in paragraph 1769 above been made available to it duringthe administrative procedure, it would have been possible for it to strengthen itsargument that the information which it had transmitted to Cembureau had notcontained any confidential material and were not therefore of such a nature as tofacilitate the adoption of conduct which restricted competition. 1795. However, none of the documents relied on by ATIC relate to the price informationwhich it transmitted to Cembureau during the period under consideration.Accordingly, none of them would have enabled ATIC to emphasise the anodynenature of the data which it had itself provided to Cembureau at that time. 1796. For its part, Cementir, without relying on any specific documents in support of itsstatements, submits, in its observations of 29 December 1997, that in manycountries prices were subject to the control of the public authorities. 1797. That argument, which is not supported by any concrete evidence in the documentswhich Cementir was able to consult following the measures of 2 October 1996 and18 and 19 June 1997, cannot be upheld in the context of the examination of a pleaalleging infringement of rights of the defence because full access was not given tothe SO and to the investigation file during the course of the administrativeprocedure. In any event, it cannot be upheld on the grounds set forth in paragraphs1787 to 1792 above. 1798. Fifthly, SFIC, Aalborg, Unicem and Cementir claim that, if they had been given fullaccess to the text of the SO and the investigation file during the administrativeprocedure, they would have been able to shed a different light on the objectivepursued by the exchanges of price information referred to in Article 2 of thecontested decision. 1799. In its observations of 7 January 1998, SFIC states that the two documentsmentioned in paragraph 1764 above show that the information on prices gatheredat Cembureau level was intended for the Commission, at its request. 1800. In its observations of 12 January 1998, Aalborg, relying principally on document33.126/516, states that the documents to which it was given access following themeasures of 2 October 1996 and 18 and 19 June 1997 attest to the fact that theexchanges of price information which took place at Cembureau level were fulfillinga classic task of a trade association, namely the drawing up of general statistics onprices designed to enable construction costs to be calculated or to support requestsfor price increases lodged by the industries with the price control authorities. 1801. In its observations of 28 November 1997, Unicem maintains that a thoroughexamination of the Commission's investigation file reveals that the frequency of theexchanges of data on prices at the time was at its highest around 1983, when theEuropean cement producers studied, under the auspices of the Commission, thefeasibility of the basing point pricing system; that proves that the exchanges of priceinformation at Cembureau level were lawful. It refers specifically to documents33.126/814 and 815. 1802. Cementir relies, in its observations of 29 December 1997, on documents33.126/2167, 18081 and 18082, which it claims illustrate the existence in certainmarkets of price information exchange mechanisms which deprived the systems ofexchanges of price information set up at Cembureau of any usefulness, or at leastof any anti-competitive effect. 1803. The Court observes, however, that the various arguments put forward by those fourapplicants would not have enabled them to invalidate the factual findings on whichthe Commission justifiably relied (see paragraphs 1515 to 1519 and 1639 to 1647above) in recital 47, paragraphs 1, 4 and 13, of the contested decision in order toconclude, first, that the object of the specific exchanges of price information ofCembureau member countries during the Head Delegates meetings of 14 January1983 and 19 March 1984 was to facilitate the implementation of the Cembureauagreement and, secondly, that, as from 1 January 1984, the system of periodicexchanges of price information which existed at that time at Cembureau level wasalso designed to facilitate the implementation of that agreement. 1804. So far as concerns SFIC and Unicem, it should also be added that their allegationsare not substantiated by any relevant document, since documents 33.126/2545 to2548 and 2591 to 2609 and 33.126/814 and 815, relied on by SFIC (see paragraph1799 above) and by Unicem (see paragraph 1801 above), respectively, go back tothe 1977 to 1978 period, that is to say, to a period largely before thecommencement dates of the infringements found in Article 2(1) (14 January 1983)and Article 2(2) (1 January 1984) of the contested decision. 1805. Sixthly, in its observations of 7 January 1998, SFIC refers to a document in theCiments Français file (documents 33.126/4125 to 4127) which it claims proves thatthe information used by that company for the Belgian market was not the result ofexchanges between FIC and itself, but came from the customs authorities. SFIC is of the view that that document would have been useful in its defence against theobjection raised in respect of the exchange of statistics with FIC. 1806. The Court observes, however, that that document would not have been of such anature as to invalidate the evidence contained in the bundle of documents referredto in recital 16 of the contested decision, which attest the existence, at Cembureaulevel, of specific and periodic exchanges of price information among Cembureau'sdirect members, including FIC and SFIC, the purpose of which was to facilitateimplementation of the Cembureau agreement. 1807. For its part, ATIC maintains, in its observations of 10 February 1997, that none ofthe documents to which it had access following the measure of 2 October 1996mentions the contacts it allegedly had with other national associations concerningexchanges of price information. 1808. However, even if such information were to have been adduced by ATIC during theadministrative procedure, it would not have enabled it to invalidate the evidencecontained in the bundle of documents referred to in recital 16 and, moreparticularly, in paragraph 19, of the contested decision, which proves itsparticipation in the system of exchanges of price information organised atCembureau level. 1809. Italcementi relies, in its observations of 10 February 1997, on a series of documents(documents 33.126/14810, 14811, 14814, 14818 to 14821, 14823, 14825, 14827,14894, 14941 to 14955, 16383, 16386, 16548, 16601 to 16604, 16605 to 16608, 16618to 16623, 14896 and 14897, and documents 33.322/1410 to 1412, 314 and 315) asillustrating the existence, without the least involvement of Cembureau, of a largenumber of exchanges of information on the flow of imports and exports, as well ason prices and terms of sale, between the cement producers of the various countries. 1810. However, even if Italcementi had been able to put those facts forward during thecourse of the administrative procedure, they would not have been of such a natureas to hide the fact that it participated, at Cembureau level, in the exchanges ofprice information which took place during the Head Delegates meeting of 19March 1984 and through the CPRF. Neither would the various arguments putforward by Italcementi have enabled it to invalidate the factual findings on whichthe Commission was justified (see paragraphs 1515 to 1519 and 1639 to 1647above), in recital 47, paragraphs 1, 4 and 13, of the contested decision, inconcluding that the said exchanges were designed to facilitate the implementationof the Cembureau agreement. 1811. Seventhly, Aalborg maintains, in its observations of 10 February 1997, that accessto the CPMA notification file (file IV/27.997) would have enabled it to explain thatthe handwritten note entitled 'United Kingdom Prices (document 33.126/11614)reproduced by the Commission at recital 16, paragraph 4, of the contested decision, which deals with the Head Delegates meeting of 14 January 1983, in actual fact didno more than describe the arithmetic method behind the basing-point system inforce in those countries and did not refer to any confidential price information. 1812. It should, however, be recalled that the exchange of price information which tookplace during the Head Delegates meeting of 14 January 1983 was found to beobjectionable in Article 2(1) of the contested decision not because of the degreeof sensitivity of the data to which it related but because its object was to facilitatethe implementation of the Cembureau agreement. Any comments which Aalborgcould have made during the administrative procedure on the basis of the CPMAnotification file would not have enabled it to invalidate the factual findings onwhich the Commission relied (see paragraphs 1515 to 1519 above), in recital 47,paragraphs 1 and 4, of the contested decision, in concluding that, during the HeadDelegates meeting of 14 January 1983, the object of the exchange of informationduring which specific indications on United Kingdom prices were given was tofacilitate the implementation of the Cembureau agreement. Those comments didnot therefore have even a small chance of altering the outcome of theadministrative procedure. 1813. Eighthly, ATIC claims, in its observations of 10 February 1997, that it is apparentfrom the national chapters of the SO and from the national files that theinvolvement of the other associations in the conduct referred to in Article 2 of thecontested decision was much more flagrant that its own. Access to those nationaldocuments during the administrative procedure would have enabled it to avoidbeing dealt with as severely as those other national associations in the contesteddecision. 1814. That argument lacks precision and is supported only by a vague, general referenceto the national chapters of the SO and to the files relating to them, without anyspecific example. For that reason alone, it cannot be upheld. 1815. Moreover, its contradictory nature must be emphasised. AITEC relies, on the onehand, on documents emanating from other associations which are members ofCembureau, specifically SFIC and AGCI, in order to support its argument that theprice information exchanged at Cembureau was not sensitive (see paragraph 1769above), but claims, on the other hand, that the involvement of the otherassociations which are members of Cembureau, including SFIC and AGCI, in theinfringements referred to in Article 2 of the contested decision was considerablygreater than its own. 1816. In conclusion, it is apparent from the foregoing considerations (see paragraphs 1758to 1815 above) that, so far as concerns the infringements found in Article 2, noneof the applicants has shown that its rights of defence were infringed during thecourse of the administrative procedure because access was given to only part of theSO and the Commission's investigation file. Conclusions 1817. It is apparent from the whole of the foregoing considerations (see paragraphs 1450to 1816 that:  Article 2(1) of the contested decision must be annulled in its entirety in sofar as it concerns Unicem, Oficemen and ATIC;  Article 2(1) of the contested decision must be annulled with regard toItalcementi in so far as it finds that it participated in the infringement inquestion before and after 19 March 1984;  Article 2(1) of the contested decision must be annulled with regard toCementir in so far as it finds that it participated in the infringement inquestion before and after 14 January 1983;  Article 2(1) must be annulled with regard to FIC, VNC, CimentsLuxembourgeois, SFIC, Aalborg, BDZ, BCA, Irish Cement and AGCI in sofar as it finds that they participated in agreements on the exchange of priceinformation intended to facilitate the implementation of the agreementreferred to in Article 1 of the contested decision at Head Delegatesmeetings subsequent to the meeting of 19 March 1984, and at CembureauExecutive Committee meetings;  Article 2(2)(a) of the contested decision must be annulled with regard to allthe applicants concerned in so far as it finds that the circulation ofinformation which took place between them related, so far as concernsBelgian and Netherlands prices, to those two countries' producers' minimumprices for supplies of cement by lorry and, so far as concerns Luxembourg,the prices, inclusive of rebates, of that country's producer;  Article 2(2) of the contested decision must be annulled with regard toUnicem in so far as it finds that it participated in the infringement inquestion before 9 September 1986;  Article 2(2) of the contested decision must be annulled with regard toItalcementi in so far as it finds that it participated in the infringement inquestion before 19 March 1984. 1818. The remainder of the pleas examined must be rejected.                                                                     V  The pleas alleging infringements of Article 85(1) of the Treaty and of the rightsof the defence in that the Commission finds the existence of three Franco-Italian concerted practices which infringed Article 85(1) of the Treaty and that the applicantsin question participated in them (Article 3(1)(a), (b) and (c) of the contested decision) Introduction 1819. The Commission alleges, in Article 3(1)(a), (b) and (c) of the contested decision,three concerted practices corresponding to a similar number of bilateralrelationships allegedly constituting infringements between the Italian cementproducer Buzzi, on the one hand, and the three French cement producers Lafarge,Ciments Français and Vicat, on the other. 1820. In Article 3(1)(a) it complains that Lafarge and Buzzi infringed, from 26 Novemberto 31 December 1988, the provisions of Article 85(1) of the EC Treaty byparticipating in a concerted practice involving the sharing of the market in southernFrance and the restriction of their autonomy of conduct with regard to productionsources. 1821. In Article 3(1)(b) it complains that Ciments Français and Buzzi infringed, from 17March to 31 December 1988, the provisions of Article 85(1) of the Treaty byparticipating in a concerted practice involving information on current prices and aforecast of price increases, with a view to the restriction of their autonomy ofconduct. 1822. In Article 3(1)(c) it complains that Vicat and Buzzi infringed, from 11 May 1983to 31 December 1988, the provisions of Article 85(1) of the Treaty by participatingin a concerted practice involving the exchange of price information with a view tothe restriction of their autonomy of conduct as regards cement supplies in southernFrance. 1823. Lafarge (T-43/95) claims that the Commission infringed Article 85(1) of the Treatyby finding that it had participated in an anti-competitive concerted practice withBuzzi. During the present proceedings, and in particular in the documents whichit sent to the Court of First Instance on 10 February 1997 and 28 January 1998following the measures of 2 October 1996 and 18 and 19 June 1997 (seeparagraphs 164 and 168 above), Lafarge has not argued that that finding was madein detriment of its rights of defence. 1824. Ciments Français (T-39/95) submits that the Commission made several manifesterrors of assessment and that it breached its rights of defence in finding that itparticipated in an anti-competitive concerted practice with Buzzi. 1825. Vicat (T-37/95) claims that the Commission made an error of assessment and thatit breached its rights of defence in finding that it had participated in an anti-competitive concerted practice with Buzzi. 1826. Buzzi (T-51/95) complains that the Commission made several errors of assessmentand breached Article 85(1) of the Treaty and its rights of defence in finding thatit had participated in three anti-competitive concerted practices with Lafarge,Ciments Français and Vicat respectively. 1827. As stated above (see paragraphs 1819 to 1822 above), although the Commissionfinds that 'continuity is thus evident in Buzzi's conduct, whose 'information ...,even though it was provided individually to the three French producers, ultimatelybenefited all three (contested decision, recital 48, paragraph 7), separately finds,in Article 3(1) of the contested decision, three concerted practices, withoutmentioning on each occasion the same addressees, while deeming each of thosepractices to have been of different duration. The only result common to all ofthem, which it bases on its findings with regard to Buzzi's conduct, is the date onwhich the three infringements ended, which it fixes at 31 December 1988 for eachof them (recital 48, paragraph 7, of the contested decision). 1828. In order to assess the legality of Article 3(1) of the contested decision, it isnecessary to ascertain whether the Commission was entitled to find three concertedpractices and whether it breached the rights of defence of Vicat, Ciments Françaisand Buzzi. Concerted practice between Lafarge and Buzzi found in Article 3(1)(a) of thecontested decision A  Introduction 1829. As a basis for its conclusion that the infringement of which it accuses Lafarge andBuzzi (see paragraph 1820 above) existed, the Commission relies on the followingextract from the record drawn up by Pierre Saint-Hillier of Lafarge at a meetingheld with Emmanuello Buzzi of Buzzi, on 26 November 1988 (contested decision,recital 20, paragraph 3; document 33.126/6857 bis): 'Several subjects were discussed: 1. South of France Emmanuello understood (following meeting with G. Liduena) that he had threepossibilities:  Build a clinker plant near the sea  Build a grinding plant  Close the plant. Negotiate markets. Set up supply company, for supplieseither from La Malle, or from Robilante, or through imports (e.g. Greece). I said there was no urgency as we had 15 or 20 years of reserves. The problem waschiefly the operating licence. Buzzi's position:  The market belonged to Ciments Lafarge.  No desire to enter Côte d'Azur to upset the market.  They have had only two or three customers in 20 years.  A war is pointless.  Agreements must be concluded to avoid conflict.  Prepared to consider joint venture. 1830. The Commission sees in this extract 'a statement of intent to share the Côted'Azur market and to share cement supply sources in the medium and long term(contested decision, recital 20, paragraph 3). It finds that there was a concertedpractice between Lafarge and Buzzi in contravention of Article 85(1) of the Treaty:'Whereas the provisions of that Article prohibit any direct or indirect contactintended to reveal to a competitor the conduct which one has decided or plans toadopt on the market, Buzzi and Lafarge, through the contact which they had on 26November 1988, took concerted action ... to restrict their autonomy of behaviourand, in particular, Buzzi's autonomy of behaviour and, ultimately, to share themarket in the south of France and restrict their future autonomy regarding sourcesof supply in the regions along the Franco-Italian frontier (contested decision,recital 48, paragraph 3). B  Correspondence between the Statement of Objections (SO) and the contesteddecision 1831. Buzzi states that it is surprised to be accused of having participated in a concertedpractice with Lafarge with the object of restricting their autonomy of behaviour inthe management of their sources of supply, when no such allegation appeared inthe SO. 1832. It must first of all be observed that, in the 'Facts of the SO on the'Implementation of the Cembureau agreement or Principle of not transhippingto internal European markets France-Italy and in particular on 'relations between Buzzi and Lafarge, the only passage of the abovementioned record of themeeting of 26 November 1988 between Lafarge and Buzzi which the Commissionmentioned was that summarising Buzzi's position (see paragraph 1829 above). TheCommission further stated: 'The introduction to the record states that: Cetterencontre fait suite à celle que nous avions eue à Paris avec Sandro et EmanueleBuzzi en septembre dernier, au cours de laquelle nous avions envisagé la possibilitéd'un accord sur les affaires de béton (That meeting followed the one we held inParis with Sandro and Emanuele Buzzi last September, during which we envisagedthe possibility of an agreement on cement) (SO, point 10, p. 21). On the otherhand, the Commission did not refer in the facts of the SO to the excerpt from therecord of the meeting relating to the 'three options envisaged by Buzzi 'followingthe meeting with G. Liduena  namely to build a clinker plant near the sea, builda grinding plant or close the plant, negotiate markets and set up a supply companyfor supplies either from La Malle, or from Robilante, or through imports (e.g.Greece)  at the end of which Lafarge had said to Buzzi that there was no urgencybecause there were 15 or 20 years of reserves. 1833. In point 61(b) of the SO (p. 173), concerning the legal assessment of the factsrelating to the Franco-Italian agreements and/or concerted practices, theCommission complained that Lafarge and Buzzi in particular had participated inagreements and/or concerted practices the object of which was 'sharing themarkets between such producers, excluding any uncertainty as to their mutualconduct and depriving consumers of the economic possibility of choosing theirsources of supply. Although the Commission accused Lafarge and Buzzi of having,through their agreement and/or concerted practice to share the markets, deprivedconsumers of the economic choice as to their sources of supply, it did not, however,object to the parties having colluded to restrict their autonomy of behaviour withregard to their sources of supply. 1834. The Court therefore upholds Buzzi's argument that the SO is not in conformitywith the contested decision as regards the accusation that it participated in aconcerted practice with Lafarge concerning such a restriction. 1835. It follows that, so far as concerns that accusation, Article 3(1)(a) of the contesteddecision must be annulled as against Buzzi, and, consequently, also as againstLafarge, which cannot be accused of having participated in alleged concerted actionrelating to the sharing of source of supply in the Franco-Italian border region, sincethat accusation may no longer be maintained against the only other party to thealleged concerted action. C  The existence of an anti-competitive concerted practice between Lafarge andBuzzi with regard to the sharing of the south of France market 1836. In view of the conclusion arrived at in the preceding paragraph, all that need beascertained is whether the Commission was legally justified in considering thatLafarge and Buzzi were guilty, when they met on 26 November 1988, of aconcerted practice contrary to Article 85(1) of the Treaty in so far as the meetingconcerned 'the sharing of the market in the south of France (Article 3(1)(a) ofthe contested decision). 1837. Lafarge observes that the Commission relies on a single document, which is notcorroborated by any other evidence or indication, in order to prove the accusationit makes in Article 3(1)(a) of the contested decision. Buzzi is of the view that theCommission disregarded the doctrine laid down in the case-law on the burden ofproof by basing its allegations solely on the internal Lafarge memorandumconcerning the 26 November 1988 meeting. 1838. It should however be pointed out that there is no principle of Community lawwhich precludes the Commission from relying on a single piece of evidence in orderto conclude that Article 85(1) of the Treaty has been infringed, provided that itsevidential value is undoubted and that the evidence itself definitely attests to theexistence of the infringement in question. In this connection, in order to assess theevidential value of a document, regard should be had first and foremost to thecredibility of the account it contains. Regard should be had in particular to theperson from whom the document originates, the circumstances in which it cameinto being, the person to whom it was addressed and whether, on its face, thedocument appears sound and reliable (Opinion of Mr Vesterdorf acting asAdvocate General in Rhône-Poulenc v Commission, cited in paragraph 1053 above,p. II-956). 1839. In the present case, the record of the meeting held on 26 November 1988 betweenLafarge and Buzzi was drawn up shortly afterwards by Mr Saint-Hillier, Lafarge'srepresentative at the meeting, since it was distributed within the Lafarge companyon 1 December 1988. The applicants put forward no argument which would makeit possible to consider that the information contained in that document does notreflect the content of the discussions held on that occasion. 1840. Without prejudging the question  considered below at paragraphs 1843 to 1876 as to whether the excerpt from the minutes in question, set out at recital 20,paragraph 3, of the contested decision, in itself proves the existence of theinfringement as found, it must thus be concluded at this stage that there is no doubtas to the evidential value of that document and that the Commission was right torely on it. The fact  as pointed out by Buzzi at the hearing  that the minutes weredistributed within Lafarge by Mr Liduena, and not by Mr Saint-Hillier, its author,is of no significance in that respect. 1841. Buzzi further criticises the Commission for substantiating its claim that there wasconcerted action with Lafarge by means of evidence based on contacts which it had had with other French producers, claiming that the various bilateral relations whichit maintained with the latter producers were unique. 1842. However, perusal of recital 20, paragraphs 3 and 7, and of recital 48, paragraphs3 and 7, of the contested decision clearly show that the Commission based thevarious aspects of the infringement of which Lafarge and Buzzi are accused(existence of a concerted action, anti-competitive purpose and duration thereof)solely on the excerpt, reproduced in recital 20, paragraph 3, of the contesteddecision, of the record of the meeting held on 26 November 1988. Buzzi'sargument must therefore be rejected. 1843. Next, Lafarge and Buzzi put forward eight arguments, essentially denying theexistence of an anti-competitive concerted practice involving the sharing of themarket of the south of France. 1844. First, Buzzi claims that the Commission committed a manifest error of assessmentin stating, at recital 20, paragraph 2, of the contested decision that 'in the periodin question, the prices charged by Italian producers were roughly 20% lower thanprices charged by French producers. In actual fact, from 1983 to 1988, the pricescharged by Italian producers were always, apart from those for 1988, higher thanthose charged by French producers, as shown by a comparison between its ownCement 425 prices and those charged by Vicat for CPJ 45 cement (Annex 17 to theapplication). 1845. The Court points out that the figures produced by the Italian cement industry atthe hearing of 2 March 1993 show that the French prices were, on average, always20% higher than the Italian prices during the period 1981 to 1991 (contesteddecision, recital 9, paragraph 6, and the tables in Annexes 9-3 and 9-4). 1846. Furthermore, the analysis put forward by Buzzi in fact challenges the Commission'sargument for the period prior to that under consideration in respect of theinfringement at issue. 1847. In any event, it does not make it possible to disregard the statements, cited above,which it made to Lafarge during the meeting of 26 November 1988: ' No desire to enter Côte d'Azur to upset the market ...  A war is pointless.  Agreements must be concluded to avoid conflict. 1848. Secondly, Buzzi maintains that the Commission, by merely stating that Buzzi hadinformed Lafarge of the conduct which it planned to adopt on the market inquestion, without stating that Lafarge did likewise vis-à-vis Buzzi, has not shown that there was an element of reciprocity, which is necessary in order to prove thatthere was a concerted practice within the meaning of Article 85(1) of the Treaty.Lafarge claims for its part that the fact that one party lets another party know ofits personal point of view cannot reasonably lead to the conclusion that there is aconcerted practice. 1849. In that connection, the Court points out that the concept of concerted practice doesin fact imply the existence of reciprocal contacts (Opinion of Advocate GeneralDarmon in Woodpulp II, cited at paragraph 697 above, points 170 to 175). Thatcondition is met where one competitor discloses its future intentions or conduct onthe market to another when the latter requests it or, at the very least, accepts it.Perusal of the covering letter with which Mr Liduena of Lafarge distributed withinhis company the minutes of the meeting of 26 November 1988 reveals that themeeting was held at the behest of Lafarge. Moreover, there is nothing in thoseminutes drawn up by Lafarge which shows that its representative expressed anyreservations or objections whatsoever when Buzzi informed it of its positionregarding the market in the south of France. In those circumstances, the applicantscannot seek to reduce Lafarge's attitude during the meeting in question to thepurely passive role of a recipient of the information which Buzzi unilaterallydecided to pass on to it, without any request by Lafarge. 1850. It may be inferred therefrom that the contacts between Lafarge and Buzzi weremotivated by the element of reciprocity essential to a finding of concerted practice.Accordingly, the applicants' arguments must be rejected. 1851. Thirdly, Buzzi denies the existence of an anti-competitive concerted practiceclaiming, first, that the views which it expressed to Lafarge during the meeting inquestion only concerned present and past circumstances, rather than anticipatingfuture actions, and, secondly, that it had not given any undertaking to Lafarge asto its future conduct on the market in the Côte d'Azur. 1852. The Court points out in this regard that any direct or indirect contact betweeneconomic operators of such a nature as to disclose to a competitor the course ofconduct which they themselves have decided to adopt or contemplate adopting onthe market, where the object or effect of such contact is to create conditions ofcompetition which do not correspond to the normal conditions of the market inquestion, constitutes a concerted practice prohibited by Article 85(1) of the Treaty(see most recently the judgments of the Court of Justice in Commission v Anic,cited in paragraph 270 above, paragraph 117, and Hüls v Commission, cited inparagraph 155 above, paragraph 160). In order to prove that there has been aconcerted practice, it is not therefore necessary to show that the competitor inquestion has formally undertaken, in respect of one or several others, to adopt aparticular course of conduct or that the competitors have colluded over their futureconduct on the market (Opinion of Advocate General Darmon in Woodpulp II,cited at paragraph 697 above, point 172). It is sufficient that, by its statement of intention, the competitor should have eliminated or, at the very least, substantiallyreduced uncertainty as to the conduct to expect of the other on the market (CaseT-4/89 BASF v Commission [1991] ECR II-1523, paragraph 242; and HerculesChemicals v Commission, cited at paragraph 140 above, paragraph 260). However,in the present case, Buzzi, after acknowledging, at its meeting with Lafarge on 26November 1988, that the market belonged to Lafarge, told it that it had no desireto enter Côte d'Azur to upset a market in which it had had only had two or threecustomers in the last 20 years, that war was pointless, and that it was necessary tomake arrangements to avoid conflicts. By doing so, it gave Lafarge an assurance,with an anti-competitive intent, as to the  in this case peaceful  attitude which thelatter could count on as regards the market in the south of France. 1853. Fourthly, Lafarge and Buzzi criticise the Commission for not having analysed theirmeeting of 26 November 1988 in its economic context. They complain first of allthat it misjudged the geography (the natural obstacle of the Alps) and roadconditions (poor quality of the road and motorway infrastructure) of the Franco-Italian border area. Buzzi observes in particular that the Commission states atrecital 11, paragraph 5, of the contested decision that 'natural obstacles such asmountains do not form any impediment to cement supplies ... [since] the Italianproducers are able to carry out supplies across the Alps in Switzerland, whereasthe deliveries in question were restricted to the canton of Tessin which, for atransporter coming from Italy, is situated before the Alps. The applicants, inparticular Buzzi (see annexes 18 to 29 to its application), also stress a whole seriesof factors which explain, in their view, why the market in the Franco-Italian borderarea was not in fact amenable, at least during the period under consideration in thecontested decision, to cross-border transportation of cement and, therefore, thatthey were not at that time actual or potential competitors in the south of Francemarket: geographical location of their respective production sites; Italian pricelevels; transport and customs conditions and costs; strike-related difficulties;delivery and transport time restrictions in force in the building sector; specificconditions placed on the use of cement in the context of tenders in the Frenchpublic sector as well as numerous private projects; natural preference of Frenchconsumers for local producers etc. The applicants claim that, during the meetingof 26 November 1988, Buzzi merely drew attention to those objective economiclimits to export activities on the Franco-Italian border market. 1854. However, the record of the 26 November 1988 meeting does not contain anyreference to the various factors put forward by the applicants seeking to explain thereal reasons and significance of the remarks made by Buzzi to Lafarge. On thecontrary, statements such as 'a war is pointless or 'agreements must be concludedto avoid conflict undermine the analysis defended by the applicants. They makeit clear that the difficulties and obstacles of all kinds put forward by them did notprevent a certain level of interpenetration of French and Italian border markets.According to the record of the meeting, Buzzi had furthermore stated that it hadhad two or three customers in the last 20 years in the Côte d'Azur market. During the administrative procedure, it stated that 'despite a number of obstacles whichit had [had] to overcome (transport costs, customs, difference in the quality ofItalian and French cement), and although it could have sold its products on closerand more profitable markets, it [had] been exporting worthwhile quantities(interessanti quantità) of cement to the south of France and, 'at prices lowerthan those charged by French producers (paragraph 4.3 of Buzzi's reply to the SO;contested decision, recital 20, paragraph 7). Lafarge and Buzzi were thuscompetitors, at least potentially, on the south of France market. 1855. The Commission was therefore right to see in the meeting of 26 November 1988on the south of France market 'a statement of intent to share the Côte d'Azur(contested decision, recital 20, paragraph 3), that is, in short, a concerted practicebetween Lafarge and Buzzi intended to 'to restrict their autonomy of behaviourand, in particular, Buzzi's autonomy of behaviour and, ultimately, to share themarket in the south of France (contested decision, recital 48, paragraph 3). 1856. In those circumstances, the explanations proffered by the applicants, based on allkinds of limitations affecting cross-border trade between the south of France andthe north of Italy, are all the more such as to underline the seriousness of theinfringement of which they are accused, inasmuch as, by their concerted action,they sought to eliminate or, at least, restrict the little actual competition whichmight exist on the market. 1857. Fifthly, Lafarge and Buzzi claim that the  legitimate  purpose of their meetingof 26 November 1988 was discussion of a joint industrial project in the region inquestion, a project that never came to fruition. 1858. Although it is perfectly conceivable that, during their meeting of 26 November1988, Lafarge and Buzzi discussed a joint industrial project, the fact remains that,on that occasion, Buzzi told Lafarge that the south of France market belonged toLafarge, that it had no desire to enter Côte d'Azur to upset the market, that warwas pointless, and that agreements should be concluded to avoid conflict. Theapplicants' argument cannot therefore hide the reality of the unlawful collusion atthe meeting of 26 November 1988 regarding the sharing of the market in the southof France. 1859. Sixthly, Buzzi claims that, although the effect of its statements could have been toguarantee to its French competitors a sharing of the south of France market, itwould have been illogical for those selfsame competitors to have then spentconsiderable sums in order to acquire a number of its customers in that region. 1860. The Court points out in that respect that during the meeting of 26 November 1988Buzzi indicated to Lafarge that it had had two or three customers in the last 20years in Côte d'Azur and that that did not elicit any obvious reaction or objectionon the part of the latter. The concerted action in relation to the south of France market did not therefore rule out Buzzi's keeping the 'two or three isolatedaccounts which it had long maintained with a number of customers in that region,since those few commercial links did not appear to be such as to upset the Côted'Azur market. The fact that the French producers should have subsequentlydecided to acquire part of Buzzi's customer base in that market is therefore notinconsistent with the existence of an unlawful concerted action between Lafargeand Buzzi at the end of 1988, as shown by the excerpt from the record of themeeting mentioned by the Commission in recital 20, paragraph 3, of the contesteddecision 1861. Seventhly, Buzzi states that, despite its alleged undertaking not to become involvedin the south of France market, its sales on that market have improved almostconsistently, with the exception of those in 1988 (Annex 16 to its application).Supported on that point by Lafarge, it adds that the fall in its sales in France in1988 can only be explained by the takeover, by certain French producers, of twoof its main customers in that region, and not, as maintained by the Commission atrecital 20, paragraph 7, of the contested decision, by the existence of a concertedaction with the French producers, and in particular with Lafarge. 1862. The Court points out that the information provided by Buzzi to illustrate theconsistent improvement in its sales until 1987 on the south of France market isirrelevant as a challenge to the infringement as found, since it is accused of havingparticipated in an unlawful concerted practice with Lafarge only since 26 November1988. 1863. As to the fall in Buzzi's sales in France in 1988, although it is conceivable that itmay be linked, at least in part, to the loss of two important customers in the regionof the south of France, those explanations do not make it possible to disregard thestatements of intention made by Buzzi to Lafarge on 26 November 1988. 1864. Eighthly, Lafarge and Buzzi allege that the Commission has not proved that thealleged concerted action influenced their subsequent conduct, by leading them toaligning their respective policies on the market in question, or, at least, that theconcerted action had such potential. Buzzi adds that, in any event, such influencewas inconceivable, regard being had to the nature of the Franco-Italian bordermarket. 1865. However, although, as is clear from the very terms of Article 85(1) of the Treaty,a concerted practice implies, besides undertakings' concerting together, conduct onthe market pursuant to those collusive practices, and a relationship of cause andeffect between the two, it must be held, subject to proof to the contrary, which theparties concerned must adduce, that the concerted action in question influenced theparties' conduct on the market (Commission v Anic, cited in paragraph 270 above,paragraph 118 and 121, and Hüls v Commission, cited in paragraph 155 above,paragraphs 161 and 162). 1866. Lafarge states specifically that, after the meeting of 26 November 1988, Buzzicontinued to supply its customers in the south of France. 1867. However, the Court points out that, during that meeting, Buzzi told Lafarge thatit had had two or three customers in the last 20 years on the Côte d'Azur market.Lafarge expressed no objection, in that respect, obviously considering that thatsituation was not such as to upset that market. In such a context, the evidenceinvoked by Lafarge does not prove that the collusion between Buzzi and it on 26November 1988 did not influence their conduct on the market. 1868. It follows from all the foregoing that the Commission was justified in concluding inArticle 3(1)(a) of the contested decision that there was an anti-competitiveconcerted practice between Lafarge and Buzzi involving 'the sharing of the marketof the south of France. Such a concerted practice is manifestly contrary toArticle 85(1)(c) of the Treaty, which expressly prohibits all agreements andconcerted practices 'which share markets. D  Duration of the infringement 1869. The Commission takes the view that the concerted practice found in Article 3(1)(a)of the contested decision lasted from 26 November to 31 December 1988. 1870. First of all, Buzzi claims that the Commission found that the infringement beganin May 1983. 1871. In actual fact, as has been pointed out above (paragraph 1869), the contesteddecision cites 26 November 1988 as the starting point for the concerted practice.Buzzi's argument is thus unfounded. 1872. Secondly, Buzzi states that, until 26 November 1988 there had been a 'state ofwar on the south of France market and that there was no 'agreement ... to avoidconflicts, in view of the record of the meeting held on that date. 1873. However, the fact that Lafarge and Buzzi agreed during that meeting that war waspointless does not necessarily mean that the parties were at war until then on thesouth of France market. Such a statement could just as well indicate their intentionnot to engage in warfare. In any event, there was held to be a concerted practicebetween Lafarge and Buzzi only as from 26 November 1988. The Commission hastherefore not claimed that concerted action between the two parties, based onagreements intended to avoid 'war or 'conflicts, existed already before that date. 1874. Thirdly, Buzzi states that the Commission, without giving reasons, set 31 December1988 as the date on which the concerted practice at issue was brought to an end, even though it acknowledged (contested decision, recital 48, paragraph 7) that itdid not have any specific information in that regard. 1875. At recital 48, paragraph 7, of the contested decision the Commission explains that'[i]n the absence of any other precise indications of when the infringement ended,[it] considers that it lasted at least until the end of 1988, since the last concertedaction with Lafarge dates from 26 November 1988 and involved Buzzi's revealingto Lafarge its future conduct on the market. 1876. On the basis of that factor, and in the absence of evidence to the contrary adducedby the undertakings concerned, the Commission was right to consider that theunlawful concerted action between Lafarge and Buzzi lasted 'at least until the endof 1988. Concerted practice between Ciments Français and Buzzi found in Article 3(1)(b) ofthe contested decision A  Introduction 1877. As a basis for its conclusion that the infringement of which it accuses CimentsFrançais and Buzzi in Article 3(1)(b) of the contested decision existed (seeparagraph 1821 above), the Commission relies on a fax of 17 March 1988 wherebyCiments Français sent Buzzi a list of its prices applicable from 2 March 1987together with the following covering note: 'In reply to your telex of today, herewithour ex-works prices for sacked and bulk cement. Price increase timetable has notbeen decided as yet. An average increase of 1% to 1.5% in the current year isenvisaged (contested decision, recital 20, paragraph 4; documents 33.126/11982 to11987). The Commission takes the view that the 'reason why Ciments Françaiscommunicated its price list and forecast price increases ... was so that Buzzi couldalign its cement prices in France on Ciments Français ... prices (contesteddecision, recital 20, paragraph 6). It concludes that 'the transmission by CimentsFrançais to Buzzi on 17 March 1988, at Buzzi's request, of the price list of theBeaucaire factory and of the forecast average increase for the year constitutes aconcerted practice, covered by Article 85(1) (contested decision, recital 48,paragraph 4), given that 'any communication to a competitor of the conduct whichit is planned to adopt on the market, such as to enable an influence to be exertedon the competitive conduct of such competitor, constitutes an infringement ofArticle 85(1) (contested decision, recital 48, paragraph 5, last indent). B  Whether there was an anti-competitive concerted practice between CimentsFrançais and Buzzi 1878. Ciments Français complains that the Commission committed an error of fact in itsdescription, in recital 20, paragraph 1, of the contested decision, of the location ofplant on either side of the Franco-Italian border belonging to the four undertakingsmentioned in Article 3(1) of the contested decision, inasmuch as it placed itsRanville plant at Bouches-du-Rhône, whereas Ranville is in Normandy. 1879. However, that error  which the Commission acknowledges (defence in Case T-39/95, p. 30)  has no consequences. As pointed out above (see paragraph 1877),the Commission, in its legal assessment in recital 48, paragraph 4, of the contesteddecision, merely objects to the disclosure made by Ciments Français to Buzzi of itsBeaucaire price list and the provision of the forecast average increase for the year. 1880. Buzzi, for its part, complains that the Commission infringed the requirements laiddown in the case-law with regard to the burden of proof by basing its finding of aninfringement on a single fax of 17 March 1988 by which Ciments Français hadtransmitted its price list to it. 1881. It has already been stated in that respect (see paragraph 1838 above) that there isno principle of Community law which precludes the Commission from relying ona single piece of evidence in order to conclude that Article 85(1) of the Treaty hasbeen infringed, provided that its evidential value is undoubted and that theevidence itself definitely attests to the existence of the infringement in question.Since Buzzi has not adduced any evidence to refute the evidential value of thedocument cited at recital 20, paragraph 4, of the contested decision, it must beconcluded here that the Commission was right to base itself on that document inorder to prove the existence of the unlawful concerted action of which it accusesCiments Français and Buzzi. That does not, however, prejudge the question examined below in paragraphs 1883 to 1921  whether the document in questionproves, by itself, that the said infringement existed. 1882. Next, Ciments Français and Buzzi set out in substance nine arguments challengingthe existence of the anti-competitive concerted practice alleged against them. 1883. First of all, as has already been stated above (paragraph 1844), Buzzi disputes theCommission's statement that 'in the period in question, the prices charged byItalian producers were roughly 20% lower than prices charged by Frenchproducers (paragraph 20(2) of the contested decision). It maintains that the pricescharged by Italian producers were always, apart from those for 1988, higher thanthose charged by French producers during that period. 1884. The Court points out that the information provided by the Italian cement industryduring the hearing of 2 March 1993 shows that French prices were, on average,always 20% higher than Italian prices during the period 1981 to 1991 (contesteddecision, recital 9, paragraph 6, and the tables in annexes 9-3 and 9-4). 1885. In any event, Buzzi's criticisms, which amount to a challenge of the Commission'sanalysis in respect of the period prior to that under consideration in respect of theinfringement at issue, cannot obscure the fact that on 17 March 1988 CimentsFrançais sent it, at Buzzi's request, its price list and forecast average increase forthe year (contested decision, recital 20, paragraph 4; documents 33.126/11982 to11987). 1886. Secondly, Buzzi maintains that the Commission, by merely stating that there wasa unilateral flow of information coming out of Ciments Français, has not provedthat there was the element of reciprocity essential to a finding of a concertedpractice. 1887. That argument must be rejected. As has been pointed out above (paragraph 1849),the condition of reciprocity, which is necessary for a finding of concerted practice,is met where it appears that one competitor discloses information relating to itsconduct on the market at the request of another competitor. The very wording ofthe fax referred to in recital 20, paragraph 4, of the contested decision makes itclear that the price list was transmitted by Ciments Français to Buzzi 'in reply to[the] telex of today (document 33.126/11983), that is, as the Commission rightlyobserves (contested decision, recital 48, paragraph 4), 'at Buzzi's request. Theelement of reciprocity is thus established in the present case. 1888. Thirdly, Ciments Français submits that, for various reasons to do, in particular, withthe high cost of transport over the border between Italy and France, and theabsence of overlap between their respective natural markets, Buzzi and itself arenot actual or potential competitors. It criticises the Commission in this regard forhaving taken a distance considerably less than the actual distance by road ormotorway as the distance separating the nearest Buzzi factory from its own(contested decision, recital 48, paragraph 5). It enclosed with its application(annexes 4 and 5) surveys carried out under the supervision of a bailiff's official,stating the actual duration and distance of a journey made under its orders by acement lorry departing from a factory near that of Buzzi in Italy to Nîmes, at theheart of the market for Ciments Français' Beaucaire factory in southwest France.According to Ciments Français, the influence of those two factors makes that typeof delivery impracticable. Ciments Français concludes that the exchange ofinformation between Buzzi and itself did not have as its object or effect therestriction of competition within the meaning of Article 85(1) of the Treaty, sincethe prime condition for such concerted practice, namely the existence ofcompetition between the parties concerned, was absent. 1889. For its part, Buzzi again criticises the Commission for not having carried out aneconomic analysis of the Franco-Italian border market, emphasising the variousreasons which explain, in its view, that that market was not amenable to the cross-border transportation of cement (see paragraph 1853 above). 1890. That argument cannot be accepted. As the Commission rightly pointed out, 'the... fact is that Buzzi exports to France (contested decision, recital 48, paragraph5). Buzzi stated during the administrative procedure that, 'despite a number ofobstacles which it had to overcome (transport costs, customs, difference in thequality of Italian and French cement), and although it could have sold its productson closer and more profitable markets, it has been exporting worthwhile quantities(interessanti quantità) of cement to the south of France since the end of the1960s (point 4.3 of Buzzi's reply to the SO; contested decision, recital 20,paragraph 7). 1891. Since there is no doubt that Buzzi exported to the south of France market, theCommission was entitled to consider that Ciments Français, which owns aproduction plant on that market, at Beaucaire (contested decision, recital 20,paragraph 1), and Buzzi were 'actual or, at the very least, potential competitors(contested decision, recital 48, paragraph 5). 1892. Fourthly, Ciments Français and Buzzi deny that the transmission of price lists, suchas those in the fax of 17 March 1988, could have served an anti-competitivepurpose. They put forward a series of arguments centred on the nature of theinformation communicated by that fax. Ciments Français maintains that thatinformation had already been made public, first, through the specialist press andthe economic press in general and, secondly, as a result of an obligation imposedby French Order 86/1243 of 1 December 1986 concerning freedom of pricing andcompetition. Buzzi claims that the document transmitted to it by Ciments Françaisconcerned official prices set by the French State and easily available to anyinterested party and that the increase forecasts could be calculated on the basis ofan analysis of the economic indicators taken into account by the public authoritieswhen dealing with applications for increases. Transmission of that information byCiments Français was a matter of simple commercial courtesy. The applicants statethat the prices which had been forwarded had been in force for more than a year(from the beginning of March 1987) and that they were about to be changed, sothat they were of purely historical value, making it possible at most to shed lighton Ciments Français' past conduct but not to predict its future conduct. The pricerise forecast for the year was given as a purely approximate range and in any eventsubsequently proved incorrect (2.5% instead of the 1 to 1.5% initially announcedby Ciments Français). Furthermore, the information mentioned neither the type ofcement nor the region concerned by the envisaged price increase. Buzzi furtherstates that the information sent to it merely gave indications as to prices but noother information, such as Ciments Français' share of the market or the level ofsales in the region in question. 1893. Such an argument must be rejected. The obligation of transparency required, inparticular in relation to prices, of French producers by Order 86/1243 of 1December 1986, cited above, applies only to 'purchaser(s) of the product(Article 33 of that Order), which was not Buzzi's position in this case. Moreover, it is clear from the fax of 17 March 1988 that the information sent by CimentsFrançais to Buzzi related not to the official price list, but to '(its) ex-works pricesfor sacked and bulk cement, including those of the factory located in theBeaucaire region, Ciments Français' natural market in the south of France(contested decision, recital 20, paragraph 4; documents 33.126/11983, 11985 and11987). Although the prices in question had already been in force for more thana year and liable to be amended at any time, the fact remains that these wereprices which were (still) in force at that time. Far from being of merely historicalor statistical interest, the information which Ciments Français sent to Buzzi wasthus of 'current value (contested decision, recital 48, paragraph 5). It is true thatBuzzi could have obtained those prices from Ciments Français' customers.Nevertheless, it requested them of Ciments Français, which sent them to it thatsame day. 1894. As regards the indication as to the price rise envisaged for the year, Buzzi cannotreasonably defend the view that that information could be easily calculated on thebasis of a simple analysis of the economic indicators taken into account by theState, since State control of cement prices had been abolished in France since 1986(contested decision, recital 16, paragraph 12). In actual fact, that information wascommercially confidential and thus particularly sensitive. 1895. The applicants thus took part, through that transmission of information, in aconcerted practice prohibited by Article 85(1) of the Treaty within the meaning ofthe case-law cited in paragraph 1852 above. 1896. By sending to Buzzi, at Buzzi's request, its sales prices in force and the forecastincrease for the year, Ciments Français revealed both its current and futurecommercial conduct, eliminating or, at the very least, substantially reducing inadvance any uncertainty as to its pricing policy, in particular on the south of Francemarket. 1897. The fact that the information thus sent only concerned prices and not any othercommercial information does not mitigate the infringement constituted by thesending of the information. 1898. Even though the price increase announced by Ciments Français eventually provedinaccurate, communication of that forecast, as the Commission rightly points out,enabled Buzzi 'to plan its pricing policy with a great degree of certainty even afterthe price changes forecast (contested decision, recital 48, paragraph 5). 1899. Fifthly, Ciments Français complains that the Commission engaged in an artificialterminological manipulation of the fax of 17 March 1988 by taking the statementthat 'an average increase of 1% to 1.5% in the current year is envisaged(contested decision, recital 20, paragraph 4; document 33.126/11983) as proof ofdisclosure, by Ciments Français, of a 'forecast ... increase of its prices (contested decision, recital 48, paragraph 4). According to the applicant, the Commission thusgave the impression that the price rise had already been firmly and definitivelydecided. 1900. That argument must be rejected. Recourse to the term 'forecast in place of theterm 'envisage cannot be considered to reveal an intention on the part of theCommission to misrepresent the wording of the fax of 17 March 1988. Moreover,nowhere in the contested decision does the Commission present Ciment Français'forecast average price increase for the year as being the result of a firm anddefinitive decision. 1901. Sixthly, Buzzi claims that the disclosure by Ciments Français of its price list couldnot have served the anti-competitive purpose claimed for it by the Commission,namely 'so that Buzzi could align its cement prices in France on Ciments Français... prices (contested decision, recital 20, paragraph 6). The prices actually chargedby the French cement producer on the south of France market did not in factcorrespond to those appearing in that price list. Buzzi refers, in that respect, to theFrench price list for 1983 to 1988, set out in annexes 18 to 23 of its application. 1902. That argument must be rejected. 1903. Examination of the information contained in the fax sent by Ciments Français on17 March 1988 and the indications of the French price for 1987 provided by Buzziin annex 22 to its application leads to the conclusion that the French price specifiedby Buzzi for that year was of FRF 365 per tonne, that is to say exactly the sameprice which Ciments Français had communicated to it on 17 March 1988 in respectof its Beaucaire factory. 1904. When invited to explain itself on that point by a written question put by the Courtof First Instance of 27 May 1998, Buzzi replied on 25 June 1998 that theinformation which it had enclosed in annexes 18 to 23 of its application wasintended, in actual fact, to show that the prices which it had itself charged on thesouth of France market between 1983 and 1988 were largely below those of theFrench producers and, in particular, of Ciments Français. That argument will beexamined in paragraphs 1909 to 1913. 1905. Be that as it may, even if the prices communicated by Ciments Français to Buzzidid not correspond to the prices actually charged by the French producer on themarket  a price which depends on a number of additional parameters which varycase by case  the price specifications set out in the fax in question were such asto enable Buzzi to 'align its cement prices in France on Ciments Français ... prices(contested decision, recital 20, paragraph 6) by raising those export prices to a levellikely to dissuade actual or potential Ciments Français customers from importingits products into the south of France and/or by passing on to its own customers inthat region the changes in 'local prices, in this case those of Ciments Français, in order not to upset the natural market of that producer. Knowledge of the pricelist applied by a competitor at a given time, as well as the price increase envisagedby it for the year, enables an operator  particularly where, as in the present case,that information includes a precise indication of the VAT rate in force (seedocuments 33.126/11984 to 11987)  to adjust its own prices accordingly, withoutit being necessary to have available the exact actual prices  which vary accordingto the customer  charged by that competitor on the market. 1906. Seventhly, Buzzi considers that, if, as the Commission claims, 'the lower prices[were] justified by the fact that the Portland cements sold by Buzzi in France(grades 325 and 425) have lower resistance grades than the corresponding cementsmanufactured and sold by the French producers (grades 350 and 450) (contesteddecision, recital 20, paragraph 7), Buzzi cannot be criticised for having acted on thebasis of the price list which had been sent by Ciments Français on 17 March 1988,since that list concerned products of a type different from those which it marketed. 1907. The Court points out that, in its application (p. 20), Buzzi contests precisely theexplanation put forward by the Commission at recital 20, paragraph 7, of thecontested decision (see the preceding paragraph), stating that the products whichit sold in France were identical in quality to French cement and that, in the eyesof customers, they were thus entirely interchangeable and competitive as betweenthem. 1908. In any event, whatever the degree of comparability, in terms of quality andresistance, between products manufactured by Buzzi and French cement, it isnevertheless the case that on 17 March 1988 Buzzi asked Ciments Français for itsprice list, which the latter hurried to transmit to it that same day, informing it alsoof the forecast price increase for the year. In the absence of any persuasivealternative explanation to justify that transmission of information, and regard beinghad to what has been set out at paragraph 1905 above, the Commission was rightto consider that the 'reason why Ciments Français communicated its price-list andforecast price increases ... was so that Buzzi could align its cement prices in Franceon Ciments Français ... prices (contested decision, recital 20, paragraph 6). It wastherefore entitled to conclude that the bilateral contact, which had the object ofbringing about competitive conditions that did not correspond to the normal marketconditions, was unlawful (see, to that effect, the case-law cited in paragraph 1852above). 1909. Eighthly, Buzzi maintains that, both before and after communication of the pricelist by Ciments Français, it constantly charged prices in that region which weresignificantly lower than those of the French producers, in particular of CimentsFrançais. It refers in that respect to annexes 18 to 23 to its application, in which itcompares French and Italian prices during the period 1983 to 1988. In reply to awritten question put by the Court of First Instance on 27 May 1998, it alsoprovided, on 25 June 1998, copies of the invoices relating to sales in the south of France, to which it referred in its application (p. 41, paragraph 11) in order tosupport its arguments on that point. Those invoices confirm that, in fact, Buzzi'sprices for certain customers in the south of France between February 1987 andDecember 1988 were constantly lower (FRF 290 to 300 per tonne) than thosespecified by Ciments Français for its Beaucaire factory (FRF 365 per tonne) in itsfax of 17 March 1988 (contested decision, recital 20, paragraph 4; documents33.126/11982 to 11987). As indicated above (paragraph 1907), Buzzi dismisses theexplanation put forward by the Commission in recital 20, paragraph 7, of thecontested decision to justify its lower prices for sales in France than those ofFrench producers. 1910. It should be pointed out in that regard that although, as is clear from the veryterms of Article 85(1) of the Treaty, a concerted practice implies, besidesundertakings' concerting together, conduct on the market pursuant to thosecollusive practices, and a relationship of cause and effect between the two, it mustbe held that, subject to proof to the contrary, which the parties concerned mustadduce, undertakings participating in the concerted action and which remain activeon the market take into account the information exchanged with their competitorsin determining their conduct on that market (Commission v Anic, cited inparagraph 270 above, paragraphs 118 and 121, and Hüls v Commission, cited inparagraph 155 above, paragraphs 161 and 162). 1911. It is appropriate to bear in mind that Buzzi has never denied having had, duringthe period under consideration in the contested decision, a number of customersin the south of France, more specifically in the Côte d'Azur market. It did not,however, intend to wage 'war there against the French producers (see the recordof the meeting of 26 November 1988 between Lafarge and Buzzi; contesteddecision, recital 20, paragraph 3; document 33.126/6857 bis). It was thus perfectlyable to follow an independent commercial policy with regard to those customers,which, according to the information it provided at the hearing, was essentially thefruit of personal contacts of the Buzzi brothers, while taking into account theinformation on prices communicated by Ciments Français in its fax of 17 March1988, in order to respond to possible requests for exports coming from actual orpotential customers of the French producer in the south of France region. 1912. It should be pointed out moreover that the Commission does not claim at all in thecontested decision that the communication by Ciments Français of its price list toBuzzi led Buzzi to apply prices identical to those of the French producer. At thevery most, it claims that the 'reason why Ciments Français communicated its pricelist and forecast price increases ... was so that Buzzi could align its cement pricesin France on Ciments Français ... prices (contested decision, recital 20, paragraph6). The fact that Buzzi's prices in the south of France were in actual fact lowerthan those which had been communicated to it by Ciments Français does not makeit inconceivable that the Italian undertaking, despite everything, allowed the information which had been provided to it on 17 March 1988 to influence its exportprices. 1913. In conclusion, Buzzi's submissions set out in paragraph 1909 above do not provethat the information which it had obtained, at its request, from Ciments Françaishad no impact on its conduct on the market. 1914. Ninthly, Buzzi refers to the takeover by the French producers of a number of itsFrench customers. 1915. However, such a circumstance does not hide the fact of unlawful concerted actionbetween Ciments Français and it, when Ciments Français sent to Buzzi, at Buzzi'srequest, its price list and details of the increase envisaged for 1988. 1916. It follows from all the foregoing that the Commission was justified in concludingthat there was a concerted practice as stated in Article 3(1)(b) of the contesteddecision. C  Duration of the infringement 1917. The Commission considers that the concerted practice which it finds inArticle 3(1)(b) of the contested decision lasted from 17 March to 31 December1988. 1918. First, Ciments Français claims that it did not have an opportunity to express itsviews during the administrative procedure regarding the date on which theinfringement in question ceased, as that date was not mentioned in the SO. 1919. In this connection, the Court points out that, at point 61(b) of the SO, dedicatedto the legal assessment of the facts relating to the Franco-Italian agreement orconcerted practice, the Commission considered that 'the exchanges of price listsbetween the French producers Lafarge, Ciments Français and Vicat and the Italianproducer Buzzi [constituted] concerted practices restricting competition within themeaning of Article 85(1) [of the Treaty] from at least 1983 to 1988 (SO, p. 173).Ciments Français must have realised, on reading that passage of the SO, that theCommission intended to complain that it had allegedly participated in a concertedpractice with Buzzi until at least the end of 1988. Its argument alleging lack ofconsistency between the SO and the contested decision must therefore be rejected. 1920. Second, Ciments Français observes that the exchange of information of which it isaccused consisted of no more than the sending of a single fax to Buzzi on 17 March1988 (contested decision, recital 20, paragraph 4; documents 33.126/11982 to11987). Like Buzzi, it challenges the Commission's right to base itself, at recital 48,paragraph 7, of the contested decision, on the concerted action between Lafarge and Buzzi in order to extend until 31 December 1988 the duration of theinfringement of which it is accused, where it has not been proved that the variouscontacts between Buzzi and the French producers had arisen from a singleinfringement. Buzzi also complains that the Commission determined the durationof its unlawful concerted action with Ciments Français without providing a specificreason. It stresses that the price list which had been sent to it on 17 March 1988by Ciments Français was no longer in force on 1 September 1988, that is to say,four months before the date fixed in the contested decision for the end of theinfringement. 1921. It must however be observed that, by informing Buzzi on 17 March 1988, at thelatter's request, of its prices in force, and of the forecast price increase 'for thecurrent year, Ciments Français offered it a reasonable degree of certainty as toits commercial conduct, in terms of prices, for the whole of 1988. The unlawfulconcerted action was thus likely to be of benefit to the participants until the endof 1988. The Commission was therefore entitled to find that the infringement hadlasted from 17 March to 31 December 1988. Concerted practice between Vicat and Buzzi found in Article 3(1)(c) of the contesteddecision A  Introduction 1922. In concluding that the infringement of which it accuses Vicat and Buzzi inArticle 3(1)(c) of the contested decision (see paragraph 1822 above) existed, theCommission relies on various telexes concerning exchanges of price lists betweenthe two undertakings during the period from 11 to 16 May 1983 (contesteddecision, recital 20, paragraph 5; documents 33.126/11974, 11973 and 11975 to11977). It also relies on a telex of 23 April 1986 sent by Buzzi to Vicat. In thattelex, Buzzi stated as follows to Vicat: 'We have received requests to supplycement not only from Nice but also Toulon. We replied in the negative to all suchrequests and intend to continue so doing. We have learnt that your prices roserecently. Please inform us: ex-works prices for bulk and sacked goods, thepercentage increase, and if other price increases are planned for this year. Ourprices from March 1986 are: .... The percentage increase was around 4.5%. Weanticipate/hope for another increase in September of 3% (contested decision,recital 20, paragraph 5; document 33.126/6144). The Commission bases itself finallyon a document relating to Vicat's list of prices applicable from 1 July 1986,allegedly sent by that company to Buzzi, at the top of which appears the followinghandwritten note in Italian: '+ 6.3% for bulk compared with March 1986; + 18.79for sacked (contested decision, recital 20, paragraph 5; document 33.126/11971). 1923. The Commission considers that the reason why 'Vicat sent its price list was so thatBuzzi could align its cement prices in France on ... Vicat prices and that 'the fact that Buzzi informed Vicat both of its refusal to fill cement orders from the southof France and that it intended to continue doing so [constituted] sharing the southof France market (contested decision, recital 20, paragraph 6). At recital 48,paragraph 6, of the contested decision, the Commission finds in the following termsthat there was a concerted practice between Vicat and Buzzi, contrary toArticle 85(1) of the Treaty: '... on the one hand, Buzzi reassured Vicat of its desirenot to disrupt the market in the south of France, and, on the other, through theexchanges of price lists and the notification of price increases, Vicat and Buzziendeavoured to establish a reasonable degree of certainty that any exports whichcontinued to take place would be carried out on the basis of a pricing policycomparable to that of Vicat. By these means, they eliminated a large part of thenormal risk inherent in any autonomous change in market behaviour (contesteddecision, recital 48, paragraph 6, last subparagraph). B  Existence of an anti-competitive concerted practice between Vicat and Buzzi 1924. Buzzi states that, according to the Commission, its statements to Vicat, accordingto which it intended to reply in the negative to all requests for cement coming fromNice and Toulon, constituted 'sharing the south of France market (contesteddecision, recital 20, paragraph 6) or reflected its 'desire not to disrupt the marketin the south of France (contested decision, recital 48, paragraph 6). Buzzi states,however, that neither it nor Vicat were censured on that ground in Article 3(1)(c)of the contested decision. It also states that the Commission did not find it wasunlawful to send to Vicat on 23 April 1986 a forecast of price increases (contesteddecision, recital 20, paragraph 5; document 33.126/6144), even though it found thetransmission of the same type of information to it on 17 March 1998 by CimentsFrançais to be unlawful (contested decision, recitals 20, paragraph 4, and 48,paragraphs 4 and 5, and Article 3(1)(b); documents 33.126/11982 to 11987). 1925. It is true that in Article 3(1)(c) of the contested decision the Commission does notexpressly charge either Vicat or Buzzi with having participated in a concertedpractice consisting in sharing the south of France market, unlike as alleged inArticle 3(1)(a) of the contested decision against Lafarge and Buzzi, or with havingexchanged information relating to forecast price increases, unlike the complaint itmakes in Article 3(1)(b) of the contested decision against Ciments Français andBuzzi. 1926. In its legal assessment of the facts set out in recital 20, paragraph 5, of thecontested decision, which leads it to conclude in Article 3(1)(c) that there was aconcerted practice between Vicat and Buzzi 'involving the exchange of priceinformation with a view to the restriction of their autonomy of conduct as regardscement supplies in southern France, the Commission gives its reasons for findingsuch an infringement in the following terms: 'The exchange of price lists whichtook place on 11-16 May 1983 and April and July 1986, and Buzzi's communication to Vicat on 23 April 1986 of its intention not to accept orders from Nice andToulon constitute a concerted practice, covered by Article 85(1). Even if the pricelists can be obtained through customers, the procedure is more complicated andmore time-consuming. Furthermore, the exchanges related not only to the pricelists, but also, on one occasion, to the forecasts of price increases. Through thisconcerted practice, on the one hand Buzzi reassured Vicat of its desire not todisrupt the market in the south of France, and, on the other, through the exchangesof price lists and the notification of price increases, Vicat and Buzzi endeavouredto establish a reasonable degree of certainty that any exports which continued totake place would be carried out on the basis of a pricing policy comparable to thatof Vicat. By these means, they eliminated a large part of the normal risk inherentin any autonomous change in market behaviour (contested decision, recital 48,paragraph 6). 1927. That analysis shows that, in finding that there was a concerted practice betweenVicat and Buzzi, the Commission sought to object to the exchanges of prices andforecast price increases between those two undertakings, inasmuch as the purposeof those exchanges was to restrict their autonomy of behaviour, in particular thatof Buzzi, by enabling the latter to apply with regard to the south of France marketan export pricing policy comparable to the pricing policy followed by Vicat in ordernot to disrupt that market, in accordance with the intentions expressed by Buzzi inits telex to Vicat of 23 April 1986. Consequently, even if Article 3(1)(c) of thecontested decision does not expressly allege that Vicat and Buzzi participated in aconcerted practice to share the south of France market, it is nevertheless the casethat, according to the Commission, the information exchanges objected to weredesigned to avoid disturbing the market in question. 1928. Next, Vicat and Buzzi put forward essentially 10 arguments denying the existenceof the anti-competitive concerted practice of which they are accused. 1929. Firstly, Buzzi claims, as has been stated above (see paragraphs 1844 and 1883), thatthe Commission committed a manifest error of assessment in stating, at recital 20,paragraph 2, of the contested decision, that 'in the period in question, the pricescharged by Italian producers were roughly 20% lower than prices charged byFrench producers. It submits that the prices charged by Italian producers werealways, apart from those for 1988, higher than those charged by French producers,as shown by a comparison between its own Cement 425 prices and those chargedby Vicat for CPJ 45 cement (Annex 17 to its application). 1930. It should be recalled once more that the figures produced by the Italian cementindustry at the hearing of 2 March 1993 show, for their part, that the French priceswere, on average, always 20% higher than the Italian prices during the period 1981to 1991 (contested decision, recital 9, paragraph 6, and the tables in Annexes 9-3and 9-4). In any event, on 23 April 1986 Buzzi told Vicat that it had receivedrequests to supply cement not only from Nice but also Toulon  which serves to illustrate the attractiveness of the Italian prices and thus to bolster theCommission's argument  but that it had replied in the negative to all of them andintended to continue so doing (contested decision, recital 20, paragraph 5;document 33.126/6144). 1931. Secondly, Buzzi submits that there is nothing to prove that the document containingVicat's price list effective as from 1 July 1986 (contested decision, recital 20,paragraph 5; document 33.126/11971) was sent to it by Vicat. 1932. It must be accepted that although the document in question was found on Buzzi'spremises, with handwritten notes in Italian at the top of the page, there is no proofthat it was sent by Vicat to Buzzi. Buzzi could have obtained it from one of Vicat'scustomers, to which no objection can be made. In those circumstances, theCommission has not shown that the abovementioned document was part ofexchanges between Vicat and Buzzi. It follows that it cannot be taken into accountas evidence of the concerted practice at issue. 1933. Thirdly, Vicat complains that the Commission arrived at the conclusion that itscontacts with Buzzi were unlawful on the ground that they were the result of theCembureau agreement to ensure non-transhipment to domestic markets, mentionedin Article 1 of the contested decision. 1934. That argument must be rejected. It is clear from recital 48, paragraph 6, of thecontested decision that in the Commission's legal assessment of relations betweenVicat and Buzzi, the Commission relied solely on the evidence referred to in theabovementioned recital 20, paragraph 5, in order to conclude that they wereunlawful and made no reference whatsoever to the Cembureau agreement. 1935. Fourthly, both applicants deny that the communications complained of had an anti-competitive purpose, raising a number of arguments based on the nature of theinformation exchanged. Vicat submits that, because of the price-control regimewhich existed in France until 1986, the prices which it transmitted to Buzzi gave noindication as to its commercial policy (rebates, conditions for payment ...). It relies,furthermore, in support of its argument, on the judgments in Fiatagri and NewHolland Ford v Commission, cited in paragraph 1680 above, paragraph 91, andDeere v Commission, cited at paragraph 420 above, paragraph 81. Buzzi claims, forits part, that all the prices exchanged were available to the public. The applicantsadd that, contrary to what the case-law requires before it can be concluded thatthere has been an unlawful concerted practice, the information which theyexchanged did not lead to their revealing or influencing their commercial conducton the market in question. 1936. The Court finds that the price lists exchanged between Vicat and Buzzi, referredto in recital 20, paragraph 5, of the contested decision, mostly concerned prices inforce and therefore up to date. Although it was possible for the parties to obtain those price lists through customers, the fact remains that 'the procedure is morecomplicated and more time-consuming (contested decision, recital 48, paragraph6), and the parties preferred to go directly to each other in order to obtain them.Moreover, Vicat sent Buzzi on 11 May 1983 a change to forthcoming prices bynotifying it of the ex-works prices list for the factory at La Grave de Peille witheffect from 1 June 1983 (contested decision, recital 20, paragraph 5; document33.126/11973). On 23 April 1986 Buzzi even notified Vicat of an anticipated/hopedfor 3% increase in September and in turn, asked Vicat to indicate ex-works pricesfor bulk and sacked goods and the percentage increase, of which it had learnt, andto tell it 'if other price increases are planned for this year (contested decision,recital 20, paragraph 5; document 33.126/6144). Contacts between Vicat and Buzzithus concerned sensitive and at times even confidential commercial information. 1937. Furthermore, in May 1983 and April 1986, Vicat and Buzzi sent each other theirrespective ex-works prices for bulk and sacked cement and, on one occasion, aforecast price increase. On 23 April 1986, Buzzi further informed Vicat that it hadrefused requests to supply cement from Nice and Toulon and that it intended tocontinue so doing. By doing so, the two applicants revealed their current and futureconduct on the market, thus eliminating or, at the very least, substantially reducingthe uncertainty as to their respective policies on the said market. In the light of thecase-law cited at paragraph 1852 above, the Commission was therefore right toconsider that, by that exchange of information, they had 'eliminated a large partof the normal risk inherent in any autonomous change in market behaviour(contested decision, recital 48, paragraph 6). 1938. Although, as is clear from the very terms of Article 85(1) of the Treaty, a concertedpractice implies, besides undertakings' concerting together, conduct on the marketpursuant to those collusive practices, and a relationship of cause and effect betweenthe two, it must be held that subject to proof to the contrary, which the partiesconcerned must adduce, undertakings participating in the concerted action whichremain active on the market take into account the information exchanged with theircompetitors in determining their conduct on that market (Commission v Anic, citedin paragraph 270 above, paragraphs 118 and 121, and Hüls v Commission, cited inparagraph 155 above, paragraphs 161 and 162). It will be necessary to examine(paragraphs 1952 to 1956 below) whether in the present case the evidence adducedby the parties concerned amounts to such contrary evidence. 1939. Lastly, Vicat cannot rely on the judgments in Fiatagri and New Holland Ford vCommission, cited at paragraph 1680 above, and Deere v Commission, cited atparagraph 420 above. First, the exchange of information referred to in those casesdid not involve prices. Secondly, it is clear from the judgment in Fiatagri and NewHolland Ford v Commission (paragraph 91) that, for transparency between tradersto be considered lawful under Article 85(1) of the Treaty, it must be likely to lead,on a market that is truly competitive owing to the atomised nature of supply, to theintensification of competition between suppliers, a condition evidently not fulfilled by the exchange of price lists between Vicat and Buzzi, if only because of therelative concentration of supply which characterises the market in question. 1940. Fifthly, Buzzi claims that the Commission contradicts itself when it affirms, first,that the exchanges of price lists and notification on price increases enabled it todevelop a commercial policy comparable to that of Vicat on the south of Francemarket, and secondly, that those products did not belong to the same class ofresistance as those of the French producers. 1941. It should be borne in mind that Buzzi contests specifically, in its application, theexplanation put forward by the Commission at recital 20, paragraph 7, of thecontested decision for its prices being lower than those of the French producers,by emphasising that its products were of equivalent quality to those of Frenchcement (see paragraph 1907 above). 1942. In any event, whatever the degree of comparability, in terms of quality andresistance, between the products marketed by Buzzi and the French cementproducers, it has been established that Buzzi asked Vicat on various occasions tosend it its price list for its factory at La Grave de Peille, together with someindication of any price increases envisaged. In the absence of an alternativepersuasive explanation by Buzzi as to the reason for such price list notification, theCommission was justified in considering that 'through the exchanges of price listsand the notification of price increases, Vicat and Buzzi [had] endeavoured toestablish a reasonable degree of certainty that any exports which continued to takeplace would be carried out on the basis of a pricing policy comparable to that ofVicat (contested decision, recital 48, paragraph 6). 1943. Sixthly, Vicat puts forward several alternative justifications for the relations itmaintained with Buzzi during the period under consideration. The exchanges ofprice lists complained of allegedly enabled Buzzi to offer prices lower than its own,which led the Italian company to increase its sales. Vicat thus prevented Buzzi fromattempting to encroach on its own client base in the south of France. 1944. That explanation cannot be accepted. An undertaking which seeks to avoid havingits customers poached by a competitor would more likely seek to ensure or restoreits competitiveness rather than communicate its prices to its competitor in the hopethat that information would lead it to losing interest in its own customer base. Inactual fact, the explanations put forward by Vicat disclose its anti-competitiveintention when it exchanged information, namely to protect its natural market inthe south of France. 1945. Vicat further states that, since at the time there was a system of price control inItaly, it considered it lawful that Buzzi should ask it for its price list in order to seekto have the Italian public authorities accept an increase in its prices. 1946. It must however be found that the various documents relating to the exchanges ofprice lists between Vicat and Buzzi (contested decision, recital 20, paragraph 5;documents 33.126/11974, 11973, 11975 to 11977 and 6144) do not contain theslightest evidence to confirm that affirmation. Moreover, the justification putforward by Vicat does not explain why Vicat itself requested Buzzi's ex-works pricesfor its Robilante factory on several occasions, (contested decision, recital 20,paragraph 5; documents 33.126/11975 to 11977 and 6144). 1947. Seventhly, Vicat submits that the statement of intention which Buzzi sent to it inthe telex of 23 April 1986 (contested decision, recital 20, paragraph 5; document33.126/6144) was at most, at least in so far as concerned orders from Toulon,technically impossible, given the distance between that region and the Robilantefactory. For its part, Buzzi criticises the Commission once again for its failure toanalyse the market in question. It informed Vicat of its intention not to accept theorders it received from Nice and from Toulon because of the numerous objectiveobstacles to export activity in the Franco-Italian border region (see paragraph 1853above). 1948. It must however be pointed out that the telex of 23 April 1986 does not containany evidence of such a nature as to support to the explanations which theapplicants now put forward. Moreover, the applicants cannot argue that Buzzi'srefusal to accept orders from the south of France may be explained by thedifficulties and inconveniences relating to Franco-Italian cross-border trade, whenBuzzi itself stated, during the administrative procedure, that those various obstacleshad not dissuaded it from exporting 'worthwhile quantities of cement to the southof France, moreover 'at prices lower than those charged by French producers(paragraph 4.3 of Buzzi's reply to the SO; contested decision, recital 20, paragraph7). 1949. Eighthly, Vicat argues that Buzzi's statement to the effect that it would refuse andintended to continue to refuse requests coming from Nice for it to supply cementis inconsistent with the truth, inasmuch as Buzzi has always sold its product in Nice.Furthermore, the report of the meeting of 26 November 1988 between Lafarge andBuzzi (contested decision, recital 20, paragraph 3; document 33.126/6857 bis) itselfdenies the existence of an agreement over domestic markets, in this case the southof France market, between the Italian undertaking and the French producers, inparticular Vicat, in that it records Buzzi's statement that it had had two or threecustomers in the last 20 years in the south of France. 1950. In that regard, the parties agree that, as is shown by the passage from the recordof the meeting of the 26 November 1988 between Lafarge and Buzzi andhighlighted by Vicat, Buzzi maintained on the Côte d'Azur market several businesscontacts based on the personal links established by the Buzzi brothers. None theless, in its telex of 23 April 1986 to Vicat, Buzzi actually told the latter that it hadgiven a negative reply to requests for the supply of cement which it had received not only from Nice but also from Toulon and that it intended to continue so doing.The indication given by Vicat means therefore at most that the French producers,among them Vicat, saw no objection to Buzzi keeping its two or three customersof 20 years standing on the Côte d'Azur market (record of the meeting of 26November 1988 between Lafarge and Buzzi), provided that the Italian undertakingabstained from increasing its exports on that market, in order not to disrupt thenatural market of the French producers and in particular of Vicat. 1951. In conclusion, the Commission was right to see in Buzzi's statement of intention of23 April 1996 the expression of its desire 'not to disrupt the market in the southof France (contested decision, recital 48, paragraph 6). It was also entitled to find (ibidem) that through their exchanges of price information Vicat and Buzziendeavoured to establish a reasonable degree of certainty that any exports whichcontinued to take place would be carried out on the basis of a pricing policycomparable to that of Vicat. The Commission was therefore entitled to concludethat those bilateral contacts, which sought to bring about competitive conditionsthat did not correspond to the normal market conditions, were unlawful (see, tothat effect, the case-law cited in paragraph 1852 above). 1952. Ninthly, Buzzi argues that the unlawful concerted practice of which the Commissionaccuses it and Vicat is contradicted by the constant increase of its sales in Francebetween 1983 and 1986 (annex 16 to its application). It adds that the Commissioncannot rely, at recital 20, paragraph 7, of the contested decision, on the fall in salesin France from 1987 in order to show that the abovementioned concerted actiondid in fact influence the behaviour of the parties concerned on the south of Francemarket, since that drop followed the takeover by the French producers of a numberof its customers in the Côte d'Azur. 1953. It states that, during the whole of the period from 1983 to 1988, its prices on theFrench market were significantly lower than those of the French producers, inparticular those of Vicat (annexes 18 to 23 to its application). It refutes (seeparagraphs 1907 and 1941) the explanation put forward in that respect by theCommission at recital 20, paragraph 7, of the contested decision. For its part, Vicatcompares Buzzi's sale prices with its own on the south of France market for theperiod in issue. It appears from that comparison that at the end of 1985 Buzzi'sprices in France were approximately FRF 100 per tonne lower than those of Vicat. 1954. As has been stated above (see paragraph 1911), Buzzi has never denied havinghad, during the period under consideration in the contested decision, a number ofcustomers in the south of France, more specifically in the Côte d'Azur market. Itdid not intend however waging 'war against the French producers (see the recordof the meeting of 26 November 1988 between Lafarge and Buzzi; contesteddecision, recital 20, paragraph 3; document 33.126/6857 bis). It was thus perfectlyable to follow an independent commercial policy, both in terms of prices and ofvolume of sales, with regard to those customers, which was the fruit of personal contacts of the Buzzi brothers, while restricting vis-à-vis all other customers itsautonomy of behaviour on the basis of information provided to it by Vicat in ordernot to disrupt the south of France market and in particular Vicat's natural marketin that region. 1955. Next, the Commission does not claim, in the contested decision, that the exchangesof price lists between Vicat and Buzzi led the latter to apply prices identical tothose of the French producer in the south of France market. It maintains only that'through the exchanges of price lists and the notification of price increases, Vicatand Buzzi endeavoured to establish a reasonable degree of certainty that anyexports which continued to take place would be carried out on the basis of apricing policy comparable to that of Vicat (contested decision, recital 48,paragraph 6). The fact that Buzzi in fact applied in the south of France priceslower than those communicated to it by Vicat does not rule out the possibility thatBuzzi, despite everything, followed a 'pricing policy comparable to that of Vicatby reflecting in its export prices the change in 'local prices on that market, in thiscase, Vicat's prices. 1956. The various arguments put forward by the applicants either to illustrate thecommercial conduct of Buzzi during the period under consideration or to refute theexplanations proffered to that end by the Commission at recital 20, paragraph 7,of the contested decision do not therefore show that the bilateral contacts betweenVicat and Buzzi described in recital 20, paragraph 5, of the contested decision hadno impact on their conduct on the market. They do not therefore show that theinfringement in question did not in fact take place. 1957. Tenthly, Vicat maintains, it its reply, that the Commission could not, withoutcontradicting itself, criticise it for having taken part in a concerted practice withBuzzi involving both an exchange of information on prices intended to ensure thattheir prices were aligned with each other and, at the same time, a systematic refusalby Buzzi to deliver to the south of France. 1958. The Court points out that the Commission does not claim, in the contesteddecision, that Vicat and Buzzi colluded on the systematic refusal by Buzzi to deliverin the south of France or, in other words, on total non-delivery of cement by Buzzion that market. All it alleged against Vicat and Buzzi was that they participated ina concerted practice which involved 'the exchange of price information with a viewto the restriction of their autonomy of conduct as regards cement supplies insouthern France (Article 3(1)(c) of the contested decision), after it had found that'through the exchanges of price lists and the notification of price increases, Vicatand Buzzi endeavoured to establish a reasonable degree of certainty that anyexports which continued to take place  without prejudice to the desire, expressedby Buzzi to Vicat, not to disrupt the market in the south of France by acceptingany order which it might receive not only from Nice but also from Toulon  'wouldbe carried out on the basis of a pricing policy comparable to that of Vicat (contested decision, recital 48, paragraph 6). It follows that Vicat's argumentalleging that the Commission contradicts itself on this point must be rejected. 1959. It follows from all the foregoing that the Commission was justified in concludingthat there was concerted practice as stated in Article 3(1)(c) of the contesteddecision. C  The duration of the infringement 1960. The Commission considers the concerted practice between Vicat and Buzzi lastedfrom 11 May 1983 to 31 December 1988. 1961. First, Buzzi complains that the Commission extended the starting point of theconcerted practice engaged in with Vicat by finding that that practice existed fromMay 1983 rather than, as in the SO, from April 1986. 1962. In the SO, the Commission actually took the following view: 'The agreementsand/or concerted practices between the French producers Lafarge and Vicat andthe Italian producer Buzzi ... on Buzzi's exports to France constitute restrictions ofcompetition within the meaning of Article 85(1) since at least 1986 [in that] suchagreements and/or practices have the object of sharing the markets between suchproducers (Chapter 10, first paragraph of point 61(b), of the SO, p. 173).However, it added: 'The exchanges of price lists between the French producersLafarge, Ciments Français and Vicat and the Italian producer Buzzi constituteconcerted practices restricting competition within the meaning of Article 85 [(1) ofthe Treaty] from at least 1983 to 1988. Such exchanges were carried out because,as may be seen in point 10 [of the SO], there is a reasonable degree of certaintythat a firm wishing to export will charge prices for its supplies that are comparableto those charged by the producers established in the importing country. Thisremoves the possibility of unforeseen or unforeseeable reactions on the part ofcompetitors and, hence, a large part of the normal risks inherent in anyautonomous change of behaviour on the market (SO, Chapter 10, secondparagraph of point 61(b), p. 173). On reading that passage of the SO, Buzzi musthave realised that the Commission intended to complain that it had participatedwith Vicat, at least since 1983, in a concerted practice which involved 'theexchange of price information with a view to the restriction of their autonomy ofconduct as regards cement supplies in southern France (Article 3(1)(c) of thecontested decision). 1963. Secondly, Vicat and Buzzi submit that the Commission, by merely producingevidence of exchanges of price lists in May 1983, April 1986 and July 1986, hasfailed to fulfil the obligation required by the case-law (see in particular DunlopSlazenger v Commission, cited above at paragraph 270, paragraph 79) to adduce atleast evidence of facts sufficiently proximate in time for it to be reasonable to accept that the infringement continued uninterruptedly between 11 May 1983 and31 December 1988. Vicat stresses in particular that the Commission has not shownthat Buzzi and itself continued to exchange their price lists after 1986. 1964. The applicants go on to state that the exchanges of prices lists are time-barred byvirtue of Article 1(1)(b) of Regulation (EEC) No 2988/74 of the Council of 26November 1974 concerning limitation periods in proceedings and the enforcementof sanctions under the rules of the European Economic Community relating totransport and competition (OJ 1974 L 319, p. 1), because the Commission'sinvestigations began in April 1989, that is to say more than five years after theevents. Buzzi adds that the 1983 exchanges at issue are also time-barred by virtueof Article 2(3) of that regulation, because the Commission, in adopting its decisionon 30 November 1994, was penalising the conduct more than 10 years after itoccurred. The applicants conclude that proceedings can be brought in respect ofthe infringement alleged against them at most for the period between April andJuly 1986. 1965. The Court points out that, although the telexes relied on by the Commission atrecital 20, paragraph 5, of the contested decision attest only to exchanges of pricelists in May 1983 and April 1986, the directness of the language used by Vicat andBuzzi and the spontaneity with which they sent each other their respective pricelists, without explaining or asking the other party to explain the reasons behind suchrequest for price-related information, show that those exchanges were normalpractice. 1966. It should further be observed that, on 23 April 1986, Buzzi informed Vicat of thefact that it had given a negative reply to requests for the supply of cement whichit had received not only from Nice but also from Toulon. By so doing, Buzzireassured Vicat as to its previous conduct on the market in the south of France. 1967. The continuity of the infringement alleged against Vicat and Buzzi is thereforecertain for the period between 11 May 1983 and 23 April 1986 inclusive. Havingregard to Articles 1 and 2 of Regulation No 2988/74, the Court must reject theargument that the offending conduct involving exchanges of price lists in May 1983is time-barred. 1968. On the other hand, there is no proof of exchanges of price lists between Vicat andBuzzi after 23 April 1986. In finding that the infringement alleged in Article 3(1)(c)of the contested decision lasted until 31 December 1988, the Commission relies on'the last concerted action with Lafarge ... from 26 November 1988 which involvedBuzzi's revealing to Lafarge its future conduct on the market (contested decision,recital 48, paragraph 7, third subparagraph). It concludes: 'December 1988 mustbe deemed to be the end of the infringement as regards the three Frenchproducers too. Even though it was provided individually to the three French producers, Buzzi's information ultimately benefited all three (contested decision,recital 48, paragraph 7, fourth subparagraph). 1969. However, the fact that, at the meeting of 26 November 1988 with Lafarge, Buzzitold Lafarge that it had no desire to upset the Côte d'Azur market, and that warwas pointless, does not demonstrate that 'exchanges of information on prices,which is the specific subject of the infringement found in Article 3(1)(c) of thecontested decision, took place between Vicat and Buzzi until 31 December 1988. 1970. It follows that Article 3(1)(c) of the contested decision must be annulled in so faras it finds that Vicat and Buzzi participated, after 23 April 1986, in a concertedpractice involving exchanges of information on prices in order to restrict theirautonomy of conduct so far as concerns deliveries of cement in the south of France. Access to the file 1971. None of the applicants mentioned in Article 3(1) of the contested decision hasclaimed that it did not have access during the administrative procedure to theincriminating evidence mentioned in recital 20 of the contested decision. 1972. So far as it contains exculpatory evidence, Vicat, Ciments Français and Buzzi madea number of observations on the basis of those documents which they had beenable to consult following the measures of 2 October 1996 and 18 and 19 June 1997.They sought to show that, by giving them only restricted access to the SO and toits investigation file during the administrative procedure, the Commission hadbreached the rights of the defence when finding the infringements of which they areaccused in Article 3(1)(a), (b) and/or (c) respectively of the contested decision. Asstated above (see paragraph 1823), Lafarge did not submit any observations toshow that the finding of the infringement of which it is accused in Article 3(1)(a)of the contested decision was made in breach of its rights of defence. A  Case T-37/95 Vicat v Commission 1973. Vicat states that, if it had been aware of a number of documents during theadministrative procedure, it would have been able to use them in order to supportits defence against the complaint in Article 3(1)(c) of the contested decisionalleging that it had participated in an anti-competitive concerted practice withBuzzi. 1974. In its observations of 10 February 1997, it argues, first, that the documentsconsulted confirm the presence of economic and historic obstacles to the existenceof a Franco-Italian concerted practice. Documents 33.126/12485 to 12492, 12493 to 12509, 12463 to 12484, 12452 to 12462, 2921 to 2928, 2929 to 2931, 3158 to 3160,3163 to 3166, 3150 to 3154, 3017, 3018, 3019 to 3032, 3053 to 3059, 3099 to 3108,3110 to 3126, 12083 to 12096, 12081, 12082, 12136 to 12138, 3365, 12139, 12140,12142 and 12143 show that from the early 1980s the Italian market was closed offby a series of agreements entered into by the three principal cement producers;these were agreements in relation to which Buzzi had always been hostile. All thosedocuments would thus have enabled Vicat to prove that Buzzi was unlikely toparticipate in restrictions and that a concerted practice with Buzzi would have beentotally ineffective, in view of its indiscipline and the small part which it played onthe Italian market. 1975. Vicat relies moreover on documents 33.126/11990 and 11991, which relate to theprice increase for Italian cement authorised in September 1989 by theInterministerial Price Committee (Comitato interministeriale dei prezzi  CIP) dueto be announced in the Italian press by AITEC. Those documents would show, inVicat's view, that the pricing information which Buzzi had sent to it occasionallywas not confidential at all and that its commercial value was limited. 1976. Secondly, Vicat claims that there is an astonishing disparity between the practices,termed unlawful, between Italian and French cement producers and the much moreelaborate practices revealed by the documents in the Spanish file. The informationexchanged with Buzzi in the telex referred to by the contested decision wasanodyne compared to that which, on reading the file on Spain and Portugal, wereexchanged between the Portuguese and Spanish markets. In that respect, Vicatrefers in particular to documents 33.322/1410 to 1412 and 1406 to 1408. It expressesastonishment therefore that its occasional exchanges of information with Buzzishould have been the subject of investigations similar to those carried out into morefrequent and, above all, more sensitive exchanges of information, inasmuch as thelatter involved, in particular, names of customers and volumes of exports. 1977. It should however be noted that, contrary to those affirmations, the commentswhich Vicat could have made on the basis of the documents it lists are not such asto prove the existence of an infringement of its rights of defence in the course ofthe administrative procedure. 1978. First of all, the documents relied upon in order to illustrate the 'cartelisation ofthe Italian market since the early 1980s and the allegedly rebellious attitude ofBuzzi in that respect (see the documents referred to in paragraph 1974 above)would not have shed a different light on the documents on which the Commissionrelied in the SO (Chapter 2, point 10, and Chapter 10, point 61(b)) and in thecontested decision (recital 20, paragraphs 5 to 7, and recital 48, paragraphs 6 and7) in order to conclude in Article 3(1)(c) of the contested decision that there hadbeen a concerted practice between Vicat and Buzzi. 1979. Nor are documents 33.126/11990 and 11991 likely to reveal the existence of abreach of Vicat's rights of defence during the administrative procedure. Anycomments which Vicat might have been able to make on the basis of thosedocuments would not have prevented the Commission from finding, objectively andirrefutably, in the light of the telexes referred to in point 10 of the SO and atrecital 20, paragraph 5, of the contested decision (documents 33.126/11974, 11973,11975 to 11977 and 6144), that the exchanges between Vicat and Buzzi during theperiod under consideration involved their own ex-works prices applicable at theirfactories at La Grave de Peille (Vicat) and Robilante (Buzzi), as well as, 'on oneoccasion, ... forecasts of [those] price increases (contested decision, recital 48,paragraph 6), information whose sensitive or even confidential nature is undeniable,rather than price lists and price increases approved by the State authorities. Thosedocuments would therefore not have shown that the contacts between Vicat andBuzzi set out in Article 3(1)(c) of the contested decision were not unlawful. 1980. Finally, the quantity, nature and content of the documents used by the Commissionin order to prove one particular infringement cannot, as such, affect the evidentialvalue of  fewer  documents relied upon in support of a finding of anotherinfringement. Accordingly, documents 33.322/1406 to 1408 and 1410 to 1412,relating to the Hispano-Portuguese agreement mentioned in Article 3(2) of thecontested decision, cannot undermine the evidential value of the documents reliedupon by the Commission, in the SO and in the contested decision, in concludingthat there was a concerted practice between Vicat and Buzzi as stated inArticle 3(1)(c) of the contested decision. 1981. In its observations of 8 January 1998, Vicat refers, first, to the extracts from aninternal Ciments Français memorandum of 20 June 1988 (documents 33.126/4366,4372 and 4387) which reflected the French company's desire to enter intocooperation agreements with Buzzi, something which would have beeninconceivable if, as the Commission maintains in its contested decision, Buzzi wasinvolved with Vicat, a competitor of Ciments Français. Those extracts thus allegedlydisprove the existence of an agreement between Vicat and Buzzi. The same is truefor Lafarge's minutes of a meeting of 20 December 1988 (documents 33.126/7357to 7362) dealing, in particular, with the French company's prospects in Italy, andwhich involved a possible alliance between Lafarge and, specifically, Buzzi. 1982. The Court points out that the documents thus relied on by Vicat, which do indeedrefer to possible alliances with Buzzi, reflect expansionist strategies envisaged byCiments Français and Lafarge in Italy. Those documents do not however shed adifferent light on the documents on which the Commission relied, in the SO andthe contested decision, in concluding that there was concerted practice betweenVicat and Buzzi as stated in Article 3(1)(c) of the contested decision. The fact thattwo French cement producers could have pondered strategic alliances in 1988 withBuzzi does not preclude or contradict the pursuit from 1983 to 1986 of unlawfulcollusion between Vicat and Buzzi. 1983. Secondly, Vicat states that documents 33.126/4395 to 4399 and 4406 to 4414,apparently of 9 March 1989, relating to the cooperation agreements betweenCiments Français and Unicem, could have been of use in its defence during theadministrative procedure, since they would have enabled it to establish a contrariothat the Commission's file did not contain any proof of an agreement or a draftagreement of that type between Buzzi and itself. 1984. However, it is not possible to argue a contrario from the existence of proof of anagreement between two parties that there is no proof of concerted action betweentwo other parties. Moreover, in the present case, the Commission did in fact refer,in the SO and the contested decision, to documents proving that there was unlawfulconcerted action between Vicat and Buzzi involving 'the exchange of priceinformation with a view to the restriction of their autonomy of conduct as regardscement supplies in southern France (Article 3(1)(c) of the contested decision).Any comments which Vicat might have been able to make could not thereforeprevent a finding of such concerted action. 1985. Thirdly, Vicat invokes documents 33.126/4421 and 4422, which contain a briefdescription of the Italian cement industry in 1986, in order to emphasise the lackof impact on the common market of the alleged concerted practice, given the verymodest position held by Buzzi on the Italian market (3% share of the market). 1986. However, that reasoning does not support the conclusion that Vicat's rights ofdefence were infringed during the administrative procedure. In prohibitingagreements which have as their object or effect the restriction of competition andwhich are likely to affect trade between Member States, Article 85(1) of the Treatydoes not require that the agreement in question should have actually affected tradebetween Member States, which, moreover, is difficult to prove to a sufficient legalstandard in most cases, but requires that it be established that the agreement becapable of having that effect (Miller v Commission, cited in paragraph 1727 above,paragraph 15, and Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411,paragraph 19). An agreement may thus affect trade between Member States whereit is possible to foresee with a sufficient degree of probability on the basis of a setof factors of law or fact that the agreement or practice in question may have aninfluence, direct or indirect, actual or potential, on the pattern of trade betweenMember States (see to that effect Case 99/79 Lancôme v ETOS [1980] ECR 2511,paragraph 23, and Montecatini v Commission, cited in paragraph 270 above,paragraph 170). In the present case, it is apparent from the documents examinedin paragraphs 1922 to 1970 above that the concerted practice between Vicat andBuzzi was likely to affect normal business in the cement sector in the Franco-Italianborder region, both in regard to quantities and to prices. Any observations whichVicat might have been able to make during the administrative procedure in orderto illustrate the modest position held by Buzzi on the Italian market could nottherefore have altered the outcome of the administrative procedure. 1987. Fourth, Vicat puts forward an internal Lafarge document, undated but probablyfrom 1987, entitled 'Implications of the risks of overland importation over theFrench borders (documents 33.126/4869 to 4873). That document, relatingspecifically to Italian exports to the Nice-Côte d'Azur area, allegedly confirms theexistence of considerable difficulties encountered by Buzzi when exporting cementto France. In other words, that document demonstrates that the low level of tradein cement between France and Italy may be explained solely by purely objectiveconsiderations to do with the various obstacles to exportation prevailing in theFranco-Italian border area, rather than, as the Commission claims, by a localconcerted practice between Buzzi and the French producers, in particular Vicat.The document in question thus states, with regard to the 'Italy/Nice-Côte d'Azurmarket: 'The advantage in cost terms of the nearest Italian factory (Buzzi) is notfavourable ... despite a variable cost of FRF 90 per tonne instead of FRF 100 pertonne charged by French factories; as regards transport costs, the favouredapproach is that of the widening of the pass at Tende (a project under seriousconsideration) with direct deliveries; a commercially justified warehouse atVentimiglia would only increase delivery costs. The position of French plants on theborder with Italy places them, in some circumstances, in a good position to carryout reprisals. Finally, the Italian factory does not have for the time being therequisite overcapacity  investment in grinding plant is required. The whole of theabove would indicate that there is no significant threat of overland imports. 1988. The Court finds that that document shows that, although, according to Lafarge,there was no 'significant threat of overland imports, in particular from Italy, andspecifically from Buzzi, the 'risk which such imports involved was none the lesslatent. 1989. Furthermore, any comments which Vicat might have made on that document in thecourse of the administrative procedure in an attempt to show that the low level ofcross-border trade in cement between France and Italy was due to the variousobstacles and inconveniences linked to export between those two markets wouldnot have made it possible to disregard Buzzi's statements during that administrativeprocedure, set forth as follows in the contested decision (recital 20, paragraph 7)'... despite a number of obstacles which it had to overcome (transport costs,customs, difference in the quality of Italian and French cement), and although itcould have sold its products on closer and more profitable markets, it has beenexporting worthwhile quantities (interessanti quantità) of cement to the south ofFrance since the end of the 1960s [... at] prices ... lower than the pricescommunicated to it by the French producers. 1990. Finally, Vicat's comments would not have prevented the Commission from decidingthat Buzzi, by informing Vicat on 23 April 1986 of its decision not to give afavourable reply to requests for supply of cement which it received from the southof France and of its intention to continue so doing (contested decision, recital 20,paragraph 5; document 33.126/6144), had 'reassured Vicat of its desire not to disrupt the market in the south of France (contested decision, recital 48,paragraph 6). 1991. It appears from the foregoing considerations that, so far as concerns theinfringement mentioned in Article 3(1)(c) of the contested decision, none of thearguments put forward by Vicat in its observations of 10 February 1997 and 8January 1998 is such as to show that its rights of defence were infringed in thecourse of the administrative procedure. B  Case T-39/95 Ciments Français v Commission 1992. Ciments Français states that, if it had been aware of a number of documents duringthe administrative procedure, it would have been able to make full use of them inorder to support its defence against the complaint in Article 3(1)(b) of thecontested decision that it had participated in an anti-competitive concerted practicewith Buzzi. 1993. In its observations of 10 February 1997, it argues that the chapters in the SOdealing with Italy and the documents relating thereto (in particular documents33.126/2945 to 2948, 2949 to 2951 and 19871 to 19873) would have enabled it tostate that Buzzi had not participated in the action undertaken by the Italianproducers against the Greek exporters, which had nothing to do with Cembureau.According to Ciments Français, in the absence of any such relationship betweenBuzzi and Cembureau, the transmission of a public price list to Buzzi by CimentsFrançais on 17 March 1988 (documents 33.126/11982 to 11987; contested decision,recital 20, paragraph 4) should not have been considered to be proof of anunlawful concerted action and, still less so, of an application of the Cembureauagreement. Finally, those passages from the SO relating to the Italian market makeno reference to any document suggesting there were links or contacts between theFrench and Italian producers nor, a fortiori, between Ciments Français and Buzzi. 1994. The Court finds, however, that no breach of the rights of the defence wascommitted in the course of the administrative procedure with regard to thedocuments referred to by Ciments Français. The Commission has never claimedthat Buzzi had links with Cembureau. On the contrary, in recital 48, paragraph 2,of the contested decision it emphasises the lack of any structural link betweenBuzzi and Cembureau. Comments by Ciments Français intended to deny theexistence of such a link could therefore not have altered the outcome of theadministrative procedure. 1995. In any event, any comments which Ciments Français might have been able to makein order to demonstrate the lack of any link between Buzzi and Cembureau andthe absence of participation by Buzzi in the action against Greek exportsundertaken by the producers belonging to its market and, finally, the total absence of any reference in the Italian chapters of the SO to documents concerning contactsbetween the Italian and French producers, in particular between Ciments Françaisand Buzzi, would not have made it possible to disregard or to shed a different lighton the contents of the fax of 17 March 1988 whereby Ciments Françaiscommunicated to Buzzi, at the latter's request, its price list and the increases whichit envisaged for the year (contested decision, recital 20, paragraph 4; documents33.126/11982 to 11987) and on which the Commission relied in the SO (Chapter2, point 10, and Chapter 10, point 61(b)) and in the contested decision (recital 20,paragraphs 4, 6 and 7 and recital 48, paragraphs 4, 5 and 7) in concluding that theconcerted practice existed. 1996. In its observations of 21 November 1997, Ciments Français makes reference, asVicat has done, to the study carried out by Lafarge entitled 'Implications of therisks of overland importation over the French borders (documents 33.126/4869 to4910) in which it highlights the same excerpts as those relied upon by Vicat (seeparagraph 1987 above). It considers that if it had been able to have access to thatstudy during the administrative procedure, it would have enabled it to confirm themerits of the argument put forward in reply to the SO, to the effect that there hadbeen no possibility that Ciments Français and Buzzi were in competition. In thosecircumstances, the sending of a price list could not have been considered to beproof of an anti-competitive agreement. What that document in fact shows is thatBuzzi, which owns the nearest factory to the French border, was not in an actualor potential competitive relationship with Vicat and Lafarge on the market of thesouth-east of France. That conclusion applies all the more in the case of CimentsFrançais, whose nearest factory to the Italian border is even farther away thanthose of Vicat and Lafarge. Ciments Français takes the view that that exculpatorydocument would have altered the outcome of the administrative procedure if theCommission had seen fit to take it into account during the abovementionedprocedure. 1997. As has been pointed out at paragraph 1988 above, the Lafarge document showsthat, although the French undertaking did not perceive, at that time, any'significant threat of overland imports, in particular from Italy and specificallyfrom Buzzi, the 'risk linked with such imports was none the less latent.Furthermore, for the reason set out at paragraph 1989 above, any comments whichCiments Français might have made on that document in the course of theadministrative procedure would not have prevented the Commission from findingthat Buzzi exported to France (contested decision, recital 48, paragraph 5, secondsubparagraph). Finally, any comments which Ciments Français might have madewould not have enabled the Commission to alter the conclusions it made in thesecond and fourth subparagraphs of recital 48, paragraph 5, of the contesteddecision: '... Ciments Français and Buzzi are actual or, at the very least, potentialcompetitors and ... any communication to a competitor of the conduct which it isplanned to adopt on the market, such as to enable an influence to be exerted on the competitive conduct of such competitor, constitutes an infringement of Article85(1). 1998. It is clear from the foregoing considerations that, so far as concerns theinfringement mentioned in Article 3(1)(b) of the contested decision, none of thearguments put forward by Ciments Français in its observations of 10 February andof 21 November 1997 are such as to show that its rights of defence were infringedin the course of the administrative procedure. C  Case T-51/95 Buzzi v Commission 1999. Buzzi, referring to various documents, states that, if it had been aware of themduring the administrative procedure, it would have been able to use them tosupport its defence against the complaint in Article 3(1)(b) of the contesteddecision alleging that it had participated in three anti-competitive concertedpractices with the French producers Lafarge, Ciments Français and Vicat. 2000. Buzzi makes the general point that none of the documents in the Commission's fileto which it obtained access following the measures of organisation of procedureordered by the Court of First Instance supports the conclusion that it was involvedin an unlawful concerted practice with the principal French producers. 2001. However, the fact that unlawful conduct on its part was not shown by any of thedocuments which Buzzi was able to consult during the procedure before the Courtdoes not, of itself, shed a different light on the documents which were accessibleduring the administrative procedure on which the Commission relied in the SO(Chapter 2, point 10, and Chapter 10, points 61(b)) and in the contested decision(recitals 20 and 48) in order to conclude that there had been a concerted practicebetween Buzzi and the French producers Lafarge, Ciments Français and Vicat. 2002. Buzzi next refers to a first series of documents which, in its view, could have beenuseful during the administrative procedure in clarifying the market conditions andproving the total absence of any competitive relationship between the Frenchproducers and itself. 2003. First of all, it refers, in its document of 9 January 1997, to an internal Lafargememorandum of 21 April 1989 (documents 33.126/4709 and 4710), from which, itclaims, that it is clear that it was not perceived by the French undertaking as acompetitor on the market in the south-east of France. In its observations of 28November 1997 it relies on another internal Lafarge memorandum of 28 February1988 concerning 'Investigations by the Commission in Brussels (documents33.126/16838 to 16840). That memorandum makes clear that Buzzi's factory inRobilante was not deemed a likely source of competition in the south-east ofFrance on which Lafarge, Ciments Français and Vicat faced each other. Buzzi further refers in its observations of 28 November 1997 to an internal Vicatmemorandum of 18 July 1988 (documents 33.126/6245 to 6247), which Buzzi claimsconfirms that it was not perceived by Vicat as a competitor on the south of Francemarket. 2004. It should first of all be pointed out that the three internal memoranda in questionmake no reference to Buzzi. They concern exclusively competition between thethree French producers Lafarge, Ciments Français and Vicat on the south ofFrance market. The fact that those documents make no mention of Buzzi does notin itself mean that the Italian undertaking was not perceived by the Frenchproducers as an actual or potential competitor on that market. 2005. Next, it is appropriate to recall once again that during the administrative procedureBuzzi itself stated that, 'despite a number of obstacles which it had to overcome(transport costs, customs, difference in the quality of Italian and French cement),and although it could have sold its products on closer and more profitable markets,it had been exporting worthwhile quantities (interessanti quantità) of cement tothe south of France since the end of the 1960s in order to show that it 'actedcompletely independently, in accordance with the actions of an entrepreneurseeking new markets (point 4.3 of the response to the SO; contested decision,recital 20, paragraph 7) and thereby to deny the complaints made against it in theSO with regard to having participated in unlawful concerted actions with theFrench producers. 2006. It follows that any comments which Buzzi might have made in the course of theadministrative procedure to show, in the light of the three internal memorandawhich it relies upon, that it was not perceived as a competitor by the Frenchproducers with which the Commission accuses it of having engaged in unlawfulconcerted actions would not have prevented the Commission from finding thatBuzzi exported to France (contested decision, recital 48, paragraph 5) and thus thatthe French producers and Buzzi were actual or, at the very least, potentialcompetitors on the south of France market (contested decision, recital 48,paragraph 5). Finally, they would not have made it possible to disregard thedocuments on which the Commission relied, in the SO and in the contesteddecision, in concluding that the three concerted practices of which Buzzi is accuseddid exist. 2007. Secondly, Buzzi refers in its document of 28 November 1997 to a study on themarket in the south-east of France, carried out by the commercial department ofLafarge on 10 December 1987 (documents 33.126/14549 to 14604). It claims thatthat document shows that the market study was carried out by Lafarge using onlythe undertaking's internal database. Buzzi considers that if the other Frenchproducers operating in the south-east of France, as well as itself, had providedLafarge with enough data to enable it to know and assess the market in question,Lafarge would not have needed to resort to that internal study. It further claims that it also makes it clear that, since 1984, Lafarge had abandoned an importantproject, specifically on the basis of its knowledge of the market in question. Buzzifinds it remarkable that the abandonment of that project was not compensated bynew initiatives, such as an exchange of information with the competition. On thecontrary, Lafarge's knowledge of the market became significantly worse after 1984.Those various aspects thus contradict the Commission's argument that Buzzi hadentered into an agreement with the three French producers Lafarge, CimentsFrançais and Vicat to share the market of the south of France on the basis ofreciprocal exchanges of information. 2008. The Court points out first of all that the contested decision does not allege theexistence of a single agreement or concerted practice between, on the one hand,the French producers Lafarge, Ciments Français and Vicat and, on the other, theItalian producer Buzzi. The Commission accuses Buzzi of three different concertedpractices, corresponding to a like number of bilateral relationships constituting aninfringement, in which the Italian producer engaged with each of the three Frenchundertakings. Since the internal study put forward by Buzzi comes from Lafarge,and Buzzi claims that the study reveals the difficulties encountered at the time bythat undertaking in collecting information on the south of France market, the onlymatter which need be considered is whether access to the document in question byBuzzi during the administrative procedure would have been useful in its defenceagainst the complaint in Article 3(1)(a) of the contested decision that it hadparticipated in a concerted practice with Lafarge involving the sharing of themarket in southern France. 2009. Lafarge's internal study concerns exclusively the volume of sales and the share ofthat company's market in France. However, the Commission, in finding thatLafarge and Buzzi committed the infringement mentioned in Article 3(1)(a) of thecontested decision, never claimed either in the SO or in the contested decision thattheir concerted action related to exchanges of information on their respective salesvolumes and market shares in southern France. 2010. It follows that any comments which Buzzi might have made on that internal studyby Lafarge in the course of the administrative procedure in order to illustrate thedifficulties of that company in obtaining information on the south of France marketand to seek in that way to refute the existence of an unlawful concerted actionbetween Lafarge and itself, would not have made it possible to disregard the recordof the meeting of 26 November 1988 between Lafarge and Buzzi, on which theCommission relied in the SO (Chapter 2, point 10, and Chapter 10, point 61(b))and in the contested decision (recital 20, paragraphs 3 and 7 and recital 48,paragraphs 3 and 7), in concluding that the concerted practice found against thosetwo undertakings in Article 3(1)(a) of the contested decision did exist. 2011. Thirdly, Buzzi draws attention in its document of 9 January 1997 to the fact that,in the statistics drawn up by SFIC (documents 33.126/14809 to 14824) the flow of imports of cement from Benelux, Germany and Switzerland had always beenspecifically analysed, whereas the flows from the other countries, including Italy,were mentioned under the residual heading 'Others. Those documents, in Buzzi'sview, thus showed that the flow from Italy was very small. It is further alleged thatit is clear from those documents, in the light of an SFIC internal memorandumdrawn up for its Bureau of 5 January 1988 (documents 33.126/14806 and 14807),that the Italian imports into France were not considered to be 'normal flows ofimports coming from ... European neighbours, undertaken in markets governedby economic principles. Only imports from the Benelux, Germany and Switzerlandwere regarded as such and were, for that reason, subject to strict control. Buzziadds that it is precisely the cement producers of countries subject to closesurveillance by SFIC which had 'structural links likely to enable them to exchangeinformation (SO, Chapter 16, point 82, p. 211). It also compares other SFICstatistics (documents 33.126/14956 to 14976) with the abovementioned statistics(documents 33.126/14809 to 14824), pointing out that that comparison confirms thatItalian importations into France were of a completely different type to thosecoming from Germany, the Benelux and Switzerland. It further observes that,according to an SFIC document of 10 November 1987 (document 33.126/14894)and a FIC memorandum of 9 March 1989 (documents 33.126/14898 and 14899),the members of Cembureau were in the habit of keeping in contact with thepurpose of controlling imports. However, the Commission's file does not show thatthat habit was shared by Buzzi. 2012. The abovementioned documents as a whole show that imports from Italy wereoccasional and residual and were perceived as such a small threat by the Frenchproducers, that they were treated in the same way as episodic importations fromcountries like Japan. It follows from all the foregoing that there could not havebeen an agreement on the Côte d'Azur market between the French producers andBuzzi, since the basic condition of such an agreement, namely that the partiesconcerned should, if only potentially, be operational on the same market, was notfulfilled. 2013. It should be observed, first of all, so far as concerns the SFIC statistics (documents33.126/14809 to 14824), that documents 33.126/14809, 14812, 14813, 14815, 14817,14820, 14822 and 14824 were accessible to Buzzi during the administrativeprocedure (see paragraph 250 above). Buzzi was therefore in a position to makeuse of them in order to support its reply to the SO. In those circumstances, itcannot now rely upon them in order to prove that its rights of defence wereinfringed during the administrative procedure. 2014. The internal SFIC memorandum drawn up for its Bureau on 5 January 1988(documents 33.126/14806 and 14807) refers to 'the existence of normal flows ofimportations from ... European neighbours [and to] the appearance of abnormalflows of cement coming from East Germany. There is nothing in that internalmemorandum, read in conjunction with the SFIC statistics (documents 33.126/14809 to 14824), to support the conclusion that the flows from Italy were deemedabnormal. Only the flows originating in East Germany were described thus. 2015. In any event, any comments which Buzzi might have made in the course of theadministrative procedure on the basis of the various documents on which it reliesand, in particular, in the light of the comparison between various SFIC statistics(documents 33.126/14956 to 14976 and 14809 to 14824), in order to prove thatItalian imports into France were not of the same kind as the flows from Germany,the Benelux and Switzerland, would not have made it possible to disregard thestatements it made during the administrative procedure to the effect that it hadexported 'worthwhile quantities to the south of France market (contesteddecision, recital 20, paragraph 7) and, thus, have cast doubt on the finding thatBuzzi and the French producers were, on that market, actual or, at the very least,potential competitors (contested decision, recital 48, paragraph 5). In short, suchcomments would not therefore have made it possible to disregard the content ofdocuments on which the Commission relied in the SO and in the contesteddecision, in concluding that the three concerted practices of which Buzzi is accusedexisted. 2016. Finally, as regards the SFIC document of 10 November 1987 (document33.126/14894) and the FIC memorandum of 9 March 1989 (document 33.126/14898and 14899), the Court points out that Buzzi had access to document 33.126/14898during the administrative procedure (see paragraph 250 above). On that documentFIC states, for the attention of SFIC: 'Please find enclosed the update to end ofFebruary of our exports to France. As soon as we have official figures for 1988 weshall try to draw up a comparison with the figures which you very recently sent us.Buzzi was thus in a position to develop an argument during the administrativeprocedure on the basis of that document in order to show that, although theCembureau membership were in the habit of exchanging information intended toenable the control of importations, there was no document in the Commission fileto prove that it, not being either a direct or indirect member of Cembureau,engaged in such practices. Buzzi cannot therefore invoke that document in orderto prove that its rights of defence were infringed during the administrativeprocedure. In any event, the argument which Buzzi could have submitted on thebasis of the SFIC and FIC documents cited above would not have been of such anature as to invalidate the documents on which the Commission relied in the SOand in the contested decision in concluding that the three concerted practices ofwhich Buzzi is accused existed. 2017. It follows from all the foregoing that the fact that Buzzi did not have access, duringthe course of the administrative procedure, to documents 33.126/14806, 14807,14810, 14811, 14814, 14816, 14818, 14819, 14821, 14823, 14956 to 14976, 14894 and14899 was not detrimental to its defence during that procedure. 2018. Fourthly, Buzzi adduces in its document of 28 November 1997 several documentswhich purportedly show the significant impact of transport conditions and costs onthe cement market. It refers to a Lafarge document entitled 'Commercial Policy(document 33.126/4982), which states that there 'does not exist a uniform domesticcement market but rather specific regional markets on account of, in particular,the 'the impact of transport costs. The preponderant effect of transport costs onthe assessment of profitability of exports is moreover confirmed by an SNFCCdocument of 2 December 1986 (document 33.126/6048 to 6050). 2019. It should be recalled in that respect that in the course of the administrativeprocedure Buzzi emphasised the impact of transport costs on exports to the southof France (point 4.3 of Buzzi's reply to the SO), while adding, however, that'despite a number of obstacles which it had to overcome (transport costs ... ), andalthough it could have sold its products on closer and more profitable markets, it[had] been exporting worthwhile quantities (interessanti quantità) of cement tothe south of France since the end of the 1960s (contested decision, recital 20,paragraph 7). Any additional comments which Buzzi might have made during theadministrative procedure on the basis of the abovementioned documents in orderto emphasise the influence of transport conditions and costs on export policy wouldnot have altered the outcome of the administrative procedure in that respect. 2020. Furthermore, the Lafarge document entitled 'Commercial Policy (document33.126/4982) was accessible to Buzzi during the administrative procedure (seeparagraph 250 above). It was even in the Box (see paragraph 95 above). Buzzi wastherefore in a position to use it in support of its reply to the SO. It cannot now relyupon it in order to prove that its rights of defence were infringed during theadministrative procedure. 2021. The SFIC document of 2 December 1986 (documents 33.126/6048 to 6050) doesnot show at all that the transport costs were deemed to be prohibitive for exports.The fact that that document analyses the risks of importation of cement intoFrance becoming more serious tends rather to prove the opposite. 2022. In its observations of 28 November 1997, Buzzi refers again, as do Vicat andCiments Français, to the undated internal Lafarge memorandum entitled'Implications of the risks of overland importation over the French borders(documents 33.126/4869 to 4909), in which it highlights the same excerpts as thoserelied upon by Vicat (see paragraphs 1987 and 1996 above). It argues that it isclear from that document that its imports into France were not perceived as athreat by Lafarge, owing, in particular, to the prohibitive nature of the transportcosts involved in trade in cement between Italy and France. It concludes that, sinceit was not perceived as a threat, Lafarge had no interest in entering into anagreement with it to restrict its autonomy of behaviour on the south of Francemarket. 2023. Nevertheless, as has been pointed out on several occasions, Buzzi itselfacknowledged during the administrative procedure that the transport costs, just asthe other obstacles and difficulties involved in trade in cement between Italy andFrance, were not prohibitive to the extent of dissuading it from all export activityin the southern region of France (contested decision, recital 20, paragraph 7). Anycomments which Buzzi might have been able to make in the course of theadministrative procedure in respect of the internal Lafarge memorandum(documents 33.126/4869 to 4909) in order to prove that its imports were notperceived by the latter as a threat would not therefore have prevented theCommission from finding objectively that Buzzi exported to the south of France atthe time of the conduct complained of in the contested decision, and, thus, that itwas an actual or, at the very least, potential competitor of the French producersin that region. In short, such comments would not therefore have made it possibleto disregard the content of the record of the meeting of 26 November 1988between Lafarge and Buzzi, on which the Commission relied in the SO and in thecontested decision in order to find in Article 3(1)(a) of the contested decision thatthere was unlawful concerted action between the two undertakings involving thesharing of the market in southern France. 2024. Buzzi next refers to a second series of documents which it claims shows theexistence of a practice between the French producers in which it did notparticipate. In its document of 9 January 1997, it refers to internal Vicatmemoranda of 18 and 30 September and of 2 and 22 October 1987 (documents33.126/5824 to 5830), as well as to a letter of 28 February 1983 sent by Vicat toCiments Français (documents 33.126/5844 to 5845). Examination of those variousdocuments reveals that certain of the information sent by Buzzi to Vicat or toCiments Français could not have been circulated between those two Frenchundertakings or communicated in turn by those two to Lafarge. Buzzi thus seesthose documents as additional proof that it was never bound by a single agreementor concerted practice to the three French producers mentioned in Article 3(1) ofthe contested decision. 2025. The Court points out first of all that, in the contested decision, the Commissioncomplains not of a single Franco-Italian agreement or practice, but of threedifferent concerted practices. Thus any comments which Buzzi might have beenable to make in the course of the administrative procedure in order to deny theexistence of a single Franco-Italian practice could not have altered the outcome ofthe administrative procedure in that respect. 2026. As to any comments which Buzzi might have been able to make on the basis of thevarious Vicat documents referred to above (see paragraph 2024 above) in order toprove its total lack of involvement in the agreement which existed at the timebetween the French producers, they would not have enabled it to exclude thecontent of the various documents on which the Commission relied in the SO and in the contested decision in order to establish the reality of the three unlawfulconcerted practices found in Article 3(1)(a), (b) and (c) of the contested decision. 2027. Finally, Buzzi puts forward a third series of documents, relating to the prices itcharged to its French customers during the period taken into account in thecontested decision. 2028. In its document of 9 January 1997, it first of all states that the prices it chargedFrench customers in 1986 for 425 cement ranged between FRF 240 and 290 pertonne, whereas it appears from a letter from SFIC to Cembureau of 27 November1986 (document 33.126/14938) that the price in France for CPJ 45 cement, aproduct in competition with its own, was FRF 357 per tonne. Moreover, otherdocuments discovered at the SNFCC (documents 33.126/15040 to 15051) allegedlyconfirm that the prices applied by the French producers in respect of differenttypes of cement at different times between 1987 and 1989 were vastly greater thanthose which it charged its French customers during the same period. 2029. In its document of 28 November 1997, Buzzi explains that it appears from amemorandum found on Vicat's premises (documents 33.126/6166 to 6175) that theprice in France in 1987 was FRF 370 per tonne and that cement imported fromEast Germany at a price of FR 320 per tonne was considered to be dumped. Thatpoint is purportedly confirmed by an internal Lafarge document entitled'Commercial Policy (see paragraph 2018 above). Buzzi concludes that, if the priceof FRF 320 per tonne charged by the East German producers was considered asa dumping price, the same was necessarily true of those even lower prices (anaverage FRF 263.5 per tonne) which it charged its French customers also during1987. That conduct is totally incompatible with the existence of an agreementinvolving the sharing of markets, an agreement which, by its nature, shouldnecessarily have been turned to maximising profits as a result of the absence of anycompetition on the market. Buzzi makes the further comment that, according toa Vicat document entitled 'Average sales prices 1987 and 1988 (document33.126/5476), the price charged by the French undertaking in January 1987 wasFRF 427 per tonne. 2030. On the basis of the various documents mentioned in the two preceding paragraphsand a document entitled 'France Price Development For Cement (document33.126/15174), Buzzi submits a table showing that there was a constant increase inaverage prices in France applied by the French producers during the period 1983to 1987, but that, at the same time, its own prices for sales in France advanced inpeaks and troughs, with very small upward adjustments, followed by significantdrops. It concludes that the trend of its prices during that period is typical of thebehaviour of a marginal producer which, on a given market, tries to make smallgains (on the market) by resorting to large price reductions, while carefullyattempting, in so far as possible, to pass on any increases onto the market. 2031. It must nevertheless be pointed out that during the administrative procedure Buzzistated, in reliance on a number of documents (see point 4.4(a) and annexes 12 to14 of Buzzi's reply to the SO), that 'the prices it charged were lower than theprices communicated to it by the French producers in order to show that it 'hadembarked on the difficult task of exporting ... completely independently, inaccordance with the actions of an entrepreneur seeking new markets (contesteddecision, recital 20, paragraph 7). However, the Commission expressed a view onthat line of reasoning in the last subparagraph of recital 20, paragraph 7, of thecontested decision by replying that in its view 'the lower prices were justified by thefact that the Portland cements sold by Buzzi in France (grades 325 and 425) havelower resistance grades than the corresponding cements manufactured and sold bythe French producers (grades 350 and 450). Any additional comments which Buzzimight have made during the administrative procedure on the basis of thedocuments referred to in paragraphs 2028 to 2030 above to show that its prices onthe south of France market were significantly lower than those of the Frenchproducers were therefore not likely to have altered the outcome of theadministrative procedure in that respect. 2032. It must further be pointed out that the document entitled 'France PriceDevelopment for Cement (document 33.126/15174) was accessible to Buzzi duringthe administrative procedure (see paragraph 250 above), as was the Lafargedocument entitled 'Commercial Policy (document 33.126/4982). Buzzi was thusin a position to make use of those documents in order to support its reply to theSO. It cannot now rely upon it in order to prove that its rights of defence wereinfringed during the administrative procedure. 2033. It follows from the foregoing analysis that, so far as concerns the infringementsmentioned in Article 3(1)(a), (b) and (c) of the contested decision, none of thedocuments put forward by Buzzi in its observations of 9 January and 28 November1997 are such as to show that its rights of defence were infringed in the course ofthe administrative procedure. Conclusions 2034. It is apparent from the foregoing considerations (see paragraphs 1819 to 2033) thatArticle 3(1) of the contested decision must be annulled:  in so far as it finds in subparagraph (a) that from 26 November to 31December 1988, Lafarge and Buzzi infringed Article 85(1) of the Treaty byparticipating in a concerted practice involving the restriction of theirautonomy of conduct with regard to production sources,  in so far as it finds in subparagraph (c) that Vicat and Buzzi infringedArticle 85(1) of the EC Treaty after 23 April 1986 by participating in a concerted practice involving the exchange of price information with a viewto the restriction of their autonomy of conduct as regards cement suppliesin southern France. 2035. The remainder of the pleas examined must be rejected.                                                                     VI  Pleas alleging infringements of Article 85(1) of the Treaty, the principle of equaltreatment and rights of the defence in that the Commission found that there was aHispano-Portuguese agreement which infringed Article 85(1)of the Treaty and thatvarious applicants participated in it (contested decision, Article 3(2)) Introduction 2036. Oficemen (T-59/95), Cimpor (T-61/95) and SECIL (T-62/95) deny the existence ofthe infringement found in Article 3(2) of the contested decision, their participationin it and the duration of the unlawful conduct of which they are accused. Cimporand SECIL complain, moreover, that the principle of equal treatment was infringedinasmuch as the Commission found that they participated in that infringement,whereas no such finding was made in respect of the Spanish undertakings. 2037. Oficemen, Cimpor and SECIL also plead infringement of their rights of defenceinasmuch as they were not given full access to incriminating and exculpatingdocuments in the Commission's file during the administrative procedure. 2038. In this connection the Court points out that, because of irregularities committedduring the administrative procedure, certain items of incriminating evidence reliedupon by the Commission in the contested decision may not be used against theapplicants concerned. 2039. Those documents should therefore be disregarded when assessing the evidence ofthe infringement and participation in it of those parties. 2040. The following must therefore be disregarded:  the three last sentences of document 33.322/2901 used in the contesteddecision, recital 21, paragraph 2, second subparagraph, and recital 49,paragraph 2 (see paragraphs 369 to 372 above) as inadmissible evidenceagainst the three applicants;  documents 33.322/512, 513, 549, 550, 566 and 567, telexes sent by oraddressed to Cimpor in 1988 and 1989, used in the contested decision,recital 21, paragraph 8 (see paragraph 373 above), as inadmissible evidenceagainst Oficemen; and  document 33.322/1399 concerning the meeting of 27 July 1988, used in thecontested decision, recital 21, paragraph 6 (see paragraph 374 above) asinadmissible evidence against Cimpor. Infringement referred to in Article 3(2) of the contested decision A  The Commission's analysis 2041. Article 3(2) of the contested decision states that Oficemen, Cimpor and SECILinfringed the provisions of Article 85(1) of the Treaty 'from 1 January 1986 to 24April 1989 by participating in an agreement on the monitoring of cementmovements between Spain and Portugal and on non-transhipment to theirrespective home markets. 2042. Evidence of that infringement is given in particular in recitals 21 and 49 of thecontested decision. 2043. The Commission explains, first of all (recital 21, paragraph 1), that 'the Portugueseproducers Cimpor and SECIL and the Spanish producers' association Oficemenheld several meetings between 1985 and 1989 to discuss cement exports, mainlyfrom Portugal to Spain, resulting from the difference in prices between the twocountries .... 2044. It refers next (recital 21, paragraph 2) to documents relating to two meetings heldin July and December 1985, during which the principle of excluding any movementof cement between Spain and Portugal was agreed. 2045. It also refers to the following record drawn up by Cimpor of the meeting held on22 July 1985 (contested decision, recital 21, paragraph 2, first subparagraph;documents 33.322/155 to 157): '1. The parties present, who may be regarded as the representatives of Spanishand Portuguese cement producers, expressed their clear support for the principlethat there should be no cement movements from Spain to Portugal or fromPortugal to Spain that are not instigated or controlled by the cement industry ofeither country. 2. However, they acknowledge that this unambiguous position of agreementdoes not prevent third parties (distributors, retailers, consumers, carriers, etc.) fromundermining the intentions of the two parties, without the latter being able toexercise effective control. In the event of such situations arising, the two partiesshould hold open exchanges of information in order to find a solution to theproblem. 2046. It also refers to an extract from document 33.322/2901 (see paragraph 2040 above),which is a record of a visit to SECIL on 28 and 29 May 1986 by two employees ofHispacement (hereinafter 'the Hispacement document). The part used againstthe applicants concerned (see paragraphs 369 to 372 above) states: '... the Chairmen of the Portuguese cement companies met at the premises ofOficemen with their Spanish counterparts in December last year (that is to sayDecember 1985), at which time it was decided to agree on a reciprocal ban onexports between the two countries. 2047. The Commission states, moreover (recital 21, paragraphs 3 to 7) that a number ofmeetings were held between Oficemen, Cimpor and SECIL between 20 January1986 and 24 April 1989, during which the state of exports between Portugal andSpain was examined. 2048. Finally, basing itself on other documents (recital 21, paragraph 8), it refers to thefact that Cimpor refused to fill orders for cement coming from Spain. 2049. The Commission concludes from the whole of its analysis (recital 21, paragraph 9)that: '... the aim of the Portuguese and Spanish producers, represented by theirassociations, was to control cement exports between their two countries and henceto share the markets. 2050. It then refutes the explanations put forward by the applicants during theadministrative procedure (recital 21, paragraphs 10 and 11). 2051. In the legal assessment of the conduct at issue (recital 49, paragraph 1), theCommission concludes: 'The restrictions agreed at the meetings held from 22 July 1985 to 24 April 1989between Oficemen, Cimpor and SECIL constitute an agreement within the meaningof Article 85(1). Through that agreement, [Oficemen, Cimpor and SECIL] opted,deliberately and in the knowledge that they were committing infringements of thelaws of their countries and of the Community competition rules ..., for a form ofcooperation designed to restrict, or actually to prevent, trade in cement betweenthe two countries and, in this way, to ensure non-encroachment on their respectivetraditional sales markets, consolidating the partitioning of the Spanish andPortuguese markets. The agreement constitutes an infringement as from 1 January 1986, the date onwhich Spain and Portugal joined the Community, until 24 April 1989 at least. 2052. It adds (recital 49, paragraphs 2 to 5) that the agreement was actually implementedand that the arguments submitted by the applicants concerned did not legitimisetheir conduct in any way. B  Agreement between Oficemen, Cimpor and SECIL on the monitoring ofcement movements between Spain and Portugal and on non-transhipment to theirrespective home markets 2053. For the purposes of the present analysis, a distinction should be drawn between theagreement referred to in Article 3(2) of the contested decision (1) and theimplementation of that agreement (2). The Court will then examine the argumentsput forward by the applicants concerned as to special circumstances claimed to beunreconcilable with its existence (3). Finally, SECIL's special position will beexamined (4). 1. Conclusion of the agreement 2054. In the contested decision, evidence that there was an agreement on the monitoringof cement movements between Spain and Portugal and on non-transhipment totheir respective home markets is based on the two documents mentioned above(see paragraphs 2045 and 2046), namely the record drawn up by Cimpor of themeeting held on 22 July 1985 and the Hispacement document. 2055. Oficemen, Cimpor and SECIL submit that those documents do not constitute proofof the existence of an agreement between them. 2056. According to SECIL and Cimpor, the record of the meeting of 22 July 1985 doesnot reflect the point of view of its author. It does not prove the existence of anyagreement, but rather that there was support for a principle. The reference to 'theprinciple that there should be no cement movements from Spain to Portugal orfrom Portugal to Spain relates to a statement of intention which should beappraised in the light of Community and national competition rules. 2057. The three applicants also challenge the evidential value of the passage from theHispacement document used against them. There is not in fact any evidence thatthe meeting of December 1985, which that passage mentions, actually took place. 2058. It is common ground that Oficemen, Cimpor and SECIL participated in themeeting of 22 July 1985. That fact is moreover confirmed by the record of thatmeeting drawn up by Cimpor. 2059. That last-mentioned document proves the existence of a concurrence of willsbetween the parties present at the meeting, and thus between the applicants referred to in Article 3(2) of the contested decision, involving 'clear support for theprinciple that there should be no cement movements from Spain to Portugal orfrom Portugal to Spain that are not instigated or controlled by the cement industryof either country. 2060. The part of the Hispacement document which is admissible evidence against theapplicants concerned (see paragraphs 369 to 372 above) confirms the fact that anagreement was struck between them some months previously. It states that: 'theChairmen of the Portuguese cement companies met at the premises of Oficemenwith their Spanish counterparts in December last year [that is to say December1985], at which time it was decided to agree on a reciprocal ban on exportsbetween the two countries 2061. The argument put forward by Cimpor and SECIL to the effect that the record ofthe meeting attests to support for a principle rather than accession to an agreementmust be rejected. An agreement within the meaning of Article 85(1) of the Treatydoes not necessarily have to be in writing (Case 28/77 Tepea v Commission [1978]ECR 1391, paragraph 41). For there to be an agreement within the meaning ofthat provision, it is sufficient for the participants in the meeting in question to havethe common intention of conducting themselves in the market in a particular way(see the case-law, cited in paragraph 1010 above). In the present case, the recordof the meeting of 22 July 1985 clearly shows the existence of a concurrence of willsand, therefore, of an agreement within the meaning of Article 85(1) of the Treaty,relating to the two aspects of the infringement referred to in Article 3(2) of thecontested decision, namely the monitoring of cement movements between Spainand Portugal and non-transhipment to their respective home markets. 2062. The other arguments challenging the evidential value of the same document andof the Hispacement document must also be rejected. The evidence must beassessed, not in isolation, but as a whole (Case 48/69 ICI v Commission, cited inparagraph 636 above, paragraph 68; Case T-141/94 Thyssen v Commission [1999]ECR II-0000, paragraph 175). The documents in question emanated from Cimporand Hispacement, companies which are perfectly acquainted with the cementmarket and its traders. Since they thus emanate from two different reliable sources,they confirm the existence of the agreement at issue. 2063. Moreover, the holding of a number of meetings between Oficemen, Cimpor andSECIL between 20 January 1986 and 24 April 1989, during which the state ofexports between Portugal and Spain was examined (contested decision, recital 21,paragraphs 3 to 7), also confirms that the applicants concerned sought to limit andcontrol trade in cement between Portugal and Spain. Accordingly, it confirms theexistence of an agreement (see paragraphs 2070 to 2082 below). 2064. Cimpor and SECIL further submit that it is clear from the Hispacement documentthat what Hispacement sought to discover was whether it could purchase clinker from SECIL under better conditions than those offered by the Spanish competitors,rather than to obtain assurances that no cement exports would be made to Spain. 2065. That argument must also be rejected. Even if Hispacement had sought to importPortuguese clinker, the fact remains that the Hispacement document proves that'the Chairmen of the Portuguese cement companies met at the premises ofOficemen with their Spanish counterparts [in December 1985], at which time it wasdecided to agree on a reciprocal ban on exports between the two countries. It isapparent from the record of the meeting of 22 July 1985 that the agreementbetween the industries of the two countries concerned cement and did not includeclinker and that movements instigated or controlled by the cement industry ofeither country were permitted. 2066. On the basis of the document and of the extract it analysed, the Commission wastherefore able to find, rightly, that there was an agreement on the monitoring ofcement movements between Spain and Portugal and on non-transhipment to theirrespective home markets. However, it must be examined at a later stage whetherit was right in finding that the participation of the parties concerned in thatagreement constituted an infringement of Article 85(1) of the Treaty with effectfrom 1 January 1986 and that the infringement lasted until 24 April 1989. 2. Implementation of the agreement 2067. In recital 49, paragraph 2, first subparagraph, of the contested decision, theCommission states: 'The agreement [between Oficemen, Cimpor and SECIL] was actuallyimplemented. The representative of SECIL stated to Hispacement ... that his firmwas determined to abide by the agreement with the Spanish and that Cimpor hadresisted any temptation to export even though it had received orders fromcustomers in Spain; the parties to the agreement exchanged all the informationnecessary to monitor and halt exports by third parties ...; Cimpor refused to sell inSpain on the pretext that we have no availabilities for export, although it isproven that, during those same periods, it met specific requests for cement fromother countries ... 2068. However, as Oficemen, Cimpor and SECIL point out, various documents relied onby the Commission in recitals 21 and 49 of the contested decision as evidence thatthe agreement between them was implemented, are not admissible against all thethree applicants (three last sentences of the Hispacement document), Oficemen(documents 33.322/512, 513, 549, 550, 566 and 567, cited in the contested decision,recital 21, paragraph 8), or Cimpor (document 33.322/1399, cited in the contesteddecision, recital 21, paragraph 6) on account of irregularities committed by the Commission during the administrative procedure (see paragraphs 369 to 374 and2038 to 2040 above). 2069. The Court must therefore examine whether the other documents relied upon by theCommission prove that the agreement was actually implemented. 2.1 Meetings held between Oficemen, Cimpor and SECIL 2070. It is apparent from various documents used as evidence against the applicantsconcerned that they met on several occasions in order to follow closely thedevelopment of exports between Portugal and Spain, seeking to monitormovements of cement between the two countries, in accordance with the principlesagreed at the meeting of 22 July 1985. 2071. In that connection, the record of that last meeting states: '[The parties present] acknowledge that [the] unambiguous position of agreement[on the principle that there should be no cement movements] does not preventthird parties (distributors, retailers, consumers, carriers, etc.) from undermining theintentions of the two parties, without the latter being able to exercise effectivecontrol. In the event of such situations arising, the two parties should hold openexchanges of information in order to find a solution to the problem. 2072. It would appear from the minutes of the Oficemen board meeting of 13 February1986 (contested decision, recital 21, paragraph 3; documents 33.322/1311 and 1314)that a meeting between Oficemen, Cimpor and SECIL was held on 20 January1986. Its purpose was to 'exchange information on the development of cementexports between the two countries. During that meeting, the parties present alsoagreed to 'inform each other about any exports known to them. 2073. According to documents 33.322/163 to 166 and 1406 to 1408 (contested decision,recital 21, paragraph 4) which record the meeting, another meeting took place on23 January 1987 between Cimpor and SECIL and representatives of the Spanishproducers, including Mr Andía, of Oficemen. In light of those documents,importation into Spain of cement from Portugal was perceived as a problem, sothat the participants in the meeting suggested, on the one hand, a medium-termsolution consisting of an increase in the price of Portuguese cement, and, on theother, a short-term solution, consisting in discouraging Portuguese operatorsengaging in cross-frontier exports. 2074. Further meetings took place on 5 and 6 March 1987 between Cimpor, SECIL andrepresentatives of the Spanish producers, including Mr Andía of Oficemen. SECILdoes not expressly acknowledge that he attended those meetings. However, hisparticipation as well as that of Oficemen and Cimpor are clear from documents 33.322/169 to 172 (contested decision, recital 21, paragraph 5). At those meetings,the Portuguese producers provided their Spanish colleagues with a list of theSpanish operators who had asked them for cement quotations (document33.322/172). The position of Portuguese cement exports to Spain for each point ofentry (Valencia, Alcántara, Badajoz, Tuy) was also examined in respect of eachmonth of 1986 and for January and February 1987 (document 33.322/170). Theminutes of the meeting of 6 March 1987 (contested decision, recital 21, paragraph5; documents 33.322/1410 to 1412) indicate that the participants had noted 'arelatively rapid increase of imports [from Portugal to Spain] since mid-October [ofthe previous year]. It adds that, on that occasion, 'the Spanish representativesinsisted in the view that Portuguese cement prices should be amended. 2075. Oficemen, Cimpor and SECIL do not deny that, at the abovementioned meetings,the movements noted in exports of cement from Portugal to Spain were followedclosely. They claim, however, that the purpose of the meetings was legitimate. Theysought, in actual fact, to limit the likelihood of cement P-300 exports from Portugalto Spain, on the ground that use of that product, which was prohibited in Spain,could render Spanish cement producers liable. It is alleged that the record of themeeting of 6 March 1987 shows that the purpose of the meetings in question wasto check that Spanish standards were observed with the aim of preventing civil orcriminal proceedings being brought against Spanish producers. Oficemen for itspart pressed the Portuguese producers to negotiate a change to the system ofmaximum prices with their government. 2076. The Court finds that, although in the contested decision (recital 22, paragraph 11)the Commission expressed doubts as to the scope of Spanish Royal Decree No1964/1975 of 23 May 1975, it was no longer disputed during proceedings before theCourt that that royal decree, in force from 1975 to 1988, generally prohibited theuse in Spain of Portland cement of a resistance below 350 kg per cm2 (cement P-350). Moreover, the Commission does not challenge the explanations put forwardby the applicants concerned, according to which two grades of cement wereauthorised at the time in Portugal, namely grade 30 (P-300) and grade 40 (P-400).SECIL alleges that until 1989 it only produced grade 30 cement. Cimpor claimsthat it did not begin to produce grade 40 cement until 1985 and in small quantitieswhich were always absorbed by domestic demand. Nor is it disputed that in 1988Decree No 1964/1975 was repealed and replaced by Royal Decree No 1313/1988of 28 October 1988, expressly prohibiting the importation into Spain of cementwhich did not comply with the type approved by the Spanish authorities, and ofcement which did meet type-approval but lacked a certificate of conformity ofproduction. 2077. However, the argument of the applicants concerned cannot be accepted. 2078. It should be pointed out that, according to the record drawn up by Cimpor of themeeting held on 22 July 1985, those who took part in that meeting 'expressed their clear support for the principle that there should be no cement movements fromSpain to Portugal or from Portugal to Spain that are not instigated or controlledby the cement industry of either country. Likewise, it is apparent from theadmissible part of the Hispacement document that the purpose of the agreementwas to prevent 'exports between the two countries. The agreement did notprovide that the exported cement should conform to the standards applicable in thecountry of importation. 2079. It is also apparent from the record of the meeting of 22 July 1985 that, in so far asthe agreement in question bound the cement producers, but not third parties (forexample, distributors and retailers), the parties to the agreement agreed that, in theevent that the actions of third parties should undermine that agreement, theyshould 'hold open exchanges of information in order to find a solution to theproblem. 2080. Admittedly, the record of the meeting of 6 March 1987 does expressly mentionOficemen's concern over the problems posed by the use in Spain of grade 30cement coming from Portugal. However, that document shows that the solutionsought to the problem of exports coming from Portugal consisted in increasingPortuguese prices. Moreover, several other documents confirm that that solutionwas invariably suggested, as Oficemen pointed out during proceedings before theCourt (see the records of the meetings of 23 January 1987 (contested decision,recital 21, paragraph 4; documents 33.322/163 to 166 and 1406 to 1408) and from6 March 1987 (contested decision, recital 21, paragraph 5; documents 33.322/1410to 1412)). The applicants cannot therefore claim that any increase in the prices ofPortuguese cement was likely to resolve the problem arising, in some circumstances,from the failure of Portuguese cement to comply with Spanish standards. 2081. It follows that the purpose of the various meetings held by the Portuguese andSpanish producers was to limit exports between Portugal and Spain, rather than tomake Portuguese exports conform to Spanish standards. 2082. Even if the purpose of the meetings had been to monitor observance of Spanishstandards, the applicants have not explained why they did not inform the competentauthorities of the problem posed by the danger of the possible use of Portuguesecement which did not conform to Spanish standards. It is in principle the task ofpublic authorities and not of private undertakings and associations to ensure thatstatutory requirements are complied with (Case T-30/89 Hilti v Commission [1991]ECR II-1439, paragraph 118, and SCK and FNK v Commission, cited at paragraph485 above, paragraph 194). Moreover, it must be observed that the agreementbetween Oficemen, Cimpor and SECIL prohibited also 'cement movements fromSpain to Portugal (record drawn up by Cimpor of the meeting held on 22 July1985; contested decision, recital 21, paragraph 2; documents 33.322/155 to 157) andthat the applicants concerned exchanged 'information on the development ofcement exports between the two countries (minutes of the Oficemen board meeting of 13 February 1986; contested decision, recital 21, paragraph 3;documents 33.322/1311 and 1314) and not only on exports from Portugal to Spain.However, the argument based on the divergence between Portuguese and Spanishstandards does not at all justify the monitoring of exports from Spain to Portugal.Since Spanish cement being, at the time, at least of grade 35, it was of higherquality than the grade 30 produced in Portugal. 2.2 Cimpor's refusal to sell 2083. It is apparent from several documents submitted as evidence against the applicantsconcerned, specifically documents 33.322/485, 486, 493 to 495, 530 to 532, 537 and538, cited in recital 21, paragraph 8, first subparagraph, of the contested decisionthat, in 1988 and 1989, Cimpor refused all requests for cement from Spain with thestandard response 'we have no availabilities for export. 2084. Oficemen and Cimpor claim that there were objective reasons for such refusals tosell. It therefore had nothing to do with the implementation of an anti-competitiveagreement by Cimpor. The applicants explain that Cimpor's capability to export atthe time was limited. That company was thus very sensitive to fluctuations indomestic demand and to the technical vicissitudes of production. It was allegedlyin such understandable circumstances that, during a particular period, certainorders were accepted and certain others refused. Furthermore, in view of its limitedcapability to export, Cimpor was not able to establish a strategy for developingexport markets. For those reasons, maintaining links with markets in which demandexceeded supply, in particular with African countries with Portuguese as the officiallanguage, was still considered a priority, but without neglecting possibilities whichmight occasionally arise in other markets, such as those of the Cembureaucountries, including Spain, and to fill orders sent to it in so far as it was able froma technical and logistical point of view. However, the quantities of grade 40cement produced by Cimpor were wholly taken up by the Portuguese market. Grade 30 cement was prohibited in Spain. Orders refused related explicitly orimplicitly to cement of a type not manufactured by Cimpor and which it did nothave available for export. 2085. The telexes relied upon by the Commission in the contested decision (contesteddecision, recital 21, paragraph 8; documents 33.322/485, 486, 493 to 495, 530 to 532,537 and 538) must be viewed in their context in order to understand Cimpor'srefusal to sell. It is already unequivocally clear from the record of the meeting heldon 22 July 1985 drawn up by Cimpor that it participated in the agreement on themonitoring of cement movements between Spain and Portugal and onnon-transhipment to their respective home markets referred to in Article 3(2) ofthe contested decision. That document refers to 'clear support for the principlethat there should be no cement movements from Spain to Portugal or fromPortugal to Spain that are not instigated or controlled by the cement industry of either country. The participation of Cimpor in the agreement is also apparentfrom the admissible extract of the Hispacement document used against the threeapplicants (document 33.322/2901) (see paragraph 2060 above). That fact is furtherconfirmed by the fact that various meetings were held between the Spanish andPortuguese producers in 1986 and 1987, in which the development of exportsbetween the two countries was analysed and solutions suggested (contesteddecision, recital 21, paragraphs 3 to 5). 2086. In that context, Cimpor's refusal to deliver cement in Spain in 1988 and 1989 is initself a sign of Cimpor's continued participation in the agreement. However, it isappropriate to examine whether the arguments put forward by Oficemen andCimpor undermine the value of that evidence. 2087. The justification put forward by Cimpor in the abovementioned telexes relating toits refusal to sell in Spain, namely the lack of availability for export, cannot beaccepted. Indeed, it is not disputed that, at the time when Cimpor refused to sellcement in Spain, it had agreed to fill specific orders for cement to: Africa, Guinea,Senegal, Libya, Madagascar, Puerto Rico, United States of America, and Antilles(contested decision, recital 21, paragraph 8; documents 33.322/490 to 492, 496 to511, 514 to 517, 523 to 526, 533 to 536, 539 to 541, 543 to 548, 551 to 556 and 571to 574). 2088. Cimpor's argument based on the divergence between standards in Spain andPortugal must also be rejected. The Spanish Royal Decree No 1964/1975 prohibitedthe use, but not the importation, into Spain of Portland cement of a resistancebelow 350 kg per cm2  prohibition of importation of such a product was addedonly by Spanish Royal Decree No 1313/1988 (see paragraph 2076 above). In thosecircumstances, there was nothing to prevent Cimpor from selling in Spain grade 30cement, which it in fact produced, until the entry into force of Royal Decree No1313/88. A fortiori, there was nothing to prevent Cimpor from selling in Spain grade40 cement, the importation and use of which were not prohibited, as Cimpor hadbegun, as it admits in its submissions, to produce that type of cement in 1985 'insmall quantities. It must in addition be pointed out that Cimpor has not justifiedany of the disputed refusals to sell by claiming that its products did not conform tothe Spanish standards in force. It constantly used the standard response 'we haveno availabilities for export. Yet, at the same time, it accepted orders for Guinea,Senegal, Libya, Madagascar, Puerto Rico, United States of America and Antilles.Moreover, in reply to 'Spanish orders, it stated that it had no cement availableeven where the orders did not indicate the type of cement required (see document33.322/538, cited in recital 21, paragraph 8, first subparagraph, of the contesteddecision). On the other hand, when, in August 1988, it received from 'Jcc ImpExp an order for grade 35 cement for delivery in Senegal, that is to say outsidethe Community, it offered it grade 30 cement (documents 33.322/551 and 553, citedin recital 21, paragraph 8, third subparagraph, of the contested decision). 2089. In view of the automatic nature of the refusals to sell and of the standard responseused to that effect which was, moreover, not true, the Commission was right toconclude (contested decision, recital 49, paragraph 2) that such refusals to sellconstituted implementation of the agreement entered into by the Portugueseproducers and Oficemen. That finding is borne out by the telex from Tracoisa, aSpanish trader, to Cimpor of 13 March 1989 (contested decision, recital 21,paragraph 8; document 33.322/575): '... If exports to Spain cannot (be) evenconsidered due to the bilateral agreement between Spanish and Portugueseproducers, okay but please let us know your possibilities for other markets. Evenif, as Oficemen claims, that telex represents merely the speculative view of oneundertaking which could not have any direct knowledge of the alleged Hispano-Portuguese agreement, the fact remains that that factor is evidence which entirelyagrees with other evidence proving, when taken together, that the agreemententered into by the Portuguese and Spanish producers was implemented. 2090. Cimpor further argues that all the documents relied upon by the Commissionallegedly post-date the adoption of Spanish Royal Decree No 1313/1988. It couldtherefore not have been at all legally or technically possible for it to fill the'Spanish orders. 2091. However, the relevant date is not that of the adoption of Spanish Royal Decree No1313/1988, that is to say 28 October 1988, but rather that of its entry into force, 4January 1989. Among the documents relied upon by the Commission in recital 21,paragraph 8, of the contested decision, there are several refusals to sell relating toSpanish orders prior to the date on which the royal decree entered into force(Cimpor telexes of 24 August 1988 (document 33.322/549), of 11 November 1988(document 33.322/532) and of 20 December 1988 (document 33.322/537 and 538).In any event, it must be pointed out that, so far as concerns orders after the dateon which the royal decree entered into force, Cimpor's refusal to sell does notmake any reference to legal difficulties (see paragraph 2088 above). 2.3. Conclusions 2092. It follows from all the foregoing that, solely on the basis of the documents thatwere admissible evidence against the applicants concerned, the Commission wasproperly able to find in recital 49, paragraph 2, subparagraph 2, of the contesteddecision that the agreement referred to in Article 3(2) was actually implemented. 3. Specific circumstances ruling out the existence of an agreement 2093. Firstly, Oficemen claims that the existence of any Hispano-Portuguese agreementis ruled out by the report on the cement industry in Spain, published on 31 July1991 by the Tribunal de Defensa de la Competencia (Annex O to its application). That report states that there was no sign of the existence of agreements orconcerted practices between Spanish producers and foreign producers. 2094. However, the fact that the Tribunal de Defensa de la Competencia did not find anysuch evidence does not shed a different light on the documentary evidence analysedin paragraphs 2054 to 2092 above. The study which led the national court to itsconclusion of July 1991 did not in fact deal with that direct documentary evidence. 2095. Secondly, Oficemen claims that the increase in cement exports from Portugal toSpain disproves the existence of the agreement referred to in Article 3(2) of thecontested decision. Those exports rose from 2 439 to 75 427 tonnes between 1986and 1988, that is to say an increase of 2 993%, whereas Portuguese exports to othercountries decreased from 52.6 million tonnes in 1986 to 39.6 million tonnes in 1988,that is a reduction of 33%. The fact that Portuguese exports to Spain amounted tono more than 2 715 tonnes in 1989 and only 83 tonnes in 1990 was allegedly dueto the adoption of Royal Decree No 1313/1988. 2096. It should however be borne in mind that the Commission, in concluding that therehad been an infringement, based itself on documentary evidence of direct collusionbetween the applicants concerned rather than on an analysis of the market. Anyincrease in exports from Portugal to Spain is not such as to shed a different lighton the direct documentary evidence examined in paragraphs 2054 to 2092 above,which unequivocally shows not only that an agreement existed but also that it wasimplemented. In any event, as the Commission rightly points out (contesteddecision, recital 49, paragraph 4), exports to Spain could have taken place underother conditions in the absence of a restrictive agreement (see, to that effect,Consten and Grundig v Commission, cited at paragraph 837 above, paragraph 495).The argument must therefore be rejected. 2097. Thirdly, Cimpor and SECIL rely on the following passage from the record of themeeting of 6 March 1987 (contested decision, recital 21, paragraph 5; documents33.322/1410 to 1412): 'The Portuguese ... are minded not to do anything about it,so that we shall have to insist at other meetings. That passage purportedly showsthat there was no agreement between Spanish and Portuguese producers. 2098. That argument must be rejected. When examined in the light of all the informationcontained in the record in question, the passage relied upon shows that Oficemenharboured grave doubts as to the action which the Portuguese producers had totake vis-à-vis the Portuguese authorities, and in particular vis-à-vis the DirectorateGeneral for Competition and Prices, in order to bring about an increase in theprice of cement in Portugal. Such action is perfectly consistent with an agreementon the regulation of trade in cement between Spain and Portugal and onnon-transhipment to their respective home markets. 2099. Fourthly, Oficemen, Cimpor and SECIL set out a series of arguments explainingthat the reduced volume of exports of Portuguese cement to Spain between 1January 1986 and 24 April 1989 was due to the existence of technical and structuralbarriers rather than to any alleged agreement between the Spanish and Portugueseproducers. Having regard to the applicable technical standards in Spain, the pricelevels in Spain, the system of maximum prices in Portugal and the high utilisationrate of production capacity, export of cement from Portugal to Spain was not arealistic option. 2100. Thus, SECIL claims to have produced only grade 30 cement, the marketing and,subsequently, the importation of which into Spain were prohibited (see paragraph2076 above). Cimpor also produced almost exclusively grade 30 cement. It did notbegin to produce grade 40 cement until 1985, in small quantities, which were alwaysabsorbed by domestic demand. Since the Portuguese plants worked at the limit oftheir production capacity during the period under consideration (in the order of90%), the use of the existing lines with a view to manufacturing and stocking P-350cement or cement of greater resistance intended for export would not have beenpossible without causing serious depletion in the supply of the Portuguese market. 2101. Moreover, it claims that prices charged in Spain and in Portugal were similar.Cimpor and SECIL refer in that connection to the passages of the Hispacementdocument (documents 33.322/2898 to 2903) which were not disclosed duringinspection of the investigation file during the administrative procedure (seeparagraphs 369 to 372 above). The Spanish market was thus allegedly of nointerest, even in the rare event of Cimpor or SECIL having spare capacity. Oncethe costs of transport were taken into account, the final price for their product inSpain was not competitive. Furthermore, there was a risk that the Spanishproducers might take reprisals, a risk which no rational businessman could ignore,having regard to the volume of the Spanish industry's surplus. It was thereforenatural, when seeking an outlet for the small surpluses which they occasionally had,that the applicants should have preferred those markets in which demandstructurally exceeded supply, such as the African markets, rather than the Spanishmarket, which was structurally in surplus. The applicants state in that connectionthat no Portuguese cement production plant was situated near the Spanish border. 2102. According to the applicants, the increase of imports into Spain of cement fromPortugal between 1986 and 1988 was the result of the fact that Royal Decree No1964/1975 prohibited the use of cement P-300 in work carried out within Spain, butnot its importation. Taking advantage of the fact that the customs authorities didnot check at the border whether the imported cement complied with the technicalrequirements of the Spanish royal decree, a number of unscrupulous intermediariesand undertakings imported and used Portuguese cement of the P-300 type in Spainuntil 1988. 2103. Another factor which helped to dissuade Portuguese producers from selling theircement in Spain was the system of maximum prices applicable in Portugal.According to Oficemen, Cimpor and SECIL, the prices imposed did not give a trueview of the costs of production, so that the level of prices in force in Portugal wasartificially low. Moreover, the maximum authorised sale price had been the samesince 1986 irrespective of whether the cement was delivered to the purchaser fromfactories situated on the Portuguese coast or from stores in the interior.Accordingly, the 'ex warehouse sale price did not reflect the cost borne by thecement producer to transport the product between the factory and the warehouse.Purchase of Portuguese cement at Portuguese warehouses situated close to theborder at artificially low prices thus became attractive from 1986 for Spanishintermediaries and consumers, which triggered exports to Spain. However, becauseof the Portuguese pricing system the effect of which was that long-distance salesachieved by producers (including all sales for export to Spain) were subsidised bysales close to factories, Portuguese producers had no interest in promoting theirsales for export to Spain at the cost of more profitable sales on the Portuguesecoast. 2104. The Court points out that in order to prove the existence of the infringement theCommission relied on documentary evidence of direct collusion between theapplicants concerned and of implementation of the agreement, rather than on thereduced volume of cement exports from Portugal to Spain (see paragraphs 2054to 2092 above). 2105. The arguments which the applicants base on the existence of technical andstructural barriers in order to justify the low level of trade between Portugal andSpain are not of such a nature as to shed a different light on that directdocumentary evidence. Thus, the applicants do not explain why, faced with allegeddifficulties over the export of cement from Portugal to Spain, they undertook notto tranship to their respective home markets. Rather, their line of argument is suchas to emphasise the seriousness of the infringement committed, since, by concludingand implementing the agreement referred to in Article 3(2) of the contesteddecision, they attempted to eliminate the little actual remaining competition on themarket. 2106. For the sake of completeness, the Court makes the following observations: theargument based on the divergence between Portuguese and Spanish standards doesnot justify the monitoring of exports from Spain to Portugal. Since Spanish cementwas, at the time, at least of grade 35, it was of a better quality than the grade 30produced in Portugal (see paragraph 2082 above). The system of maximum pricesapplicable in Portugal could not have discouraged 'ex warehouse sales by Cimporand SECIL to Spanish customers prepared to pay the transport costs. Theargument based on the allegedly prohibitive costs of transport or distance isinconsistent with the large number of Spanish orders placed with Portugueseproducers (contested decision, recital 21, paragraph 8; documents 33.322/485, 486, 493 to 495, 530 to 532, 537 and 538). Finally, the Court points out the contradictionbetween the various arguments put forward by the applicants concerned, whoallege, on the one hand, that the price levels in Spain and Portugal were nearlyidentical and, on the other, that, because of the artificially low prices in Portugal,Portuguese cement was attractive to Spanish and Portuguese intermediaries andconsumers. 4. SECIL's special position 2107. SECIL maintains that it took no initiative in seeking to conclude an agreement withthe Spanish producers. It claimed that such an agreement would have been of nointerest to it, given that its production capacity was fully utilised to meet domesticdemand and it feared Spanish reprisals. It points out that its commercial behaviourdid not give rise to Spanish concerns and that Cimpor's refusal to sell are notevidence that it participated in an agreement on non-transhipment to homemarkets. 2108. The Court finds that the fact that SECIL did not participate in the drawing up ofany of the documents referred to in recital 21 of the contested decision and thatmost of the documents were not discovered in its files does not mean that they maynot be used against it as evidence of the infringement with which it is charged(Empresa Nacional Siderúrgica v Commission, cited at paragraph 1053 above,paragraph 312). 2109. It is apparent from Cimpor's record of the meeting held on 22 July 1985 thatSECIL undertook to apply the agreement entered into by the participants at thatmeeting (see paragraphs 2058 and 2059). Moreover, the admissible part of theHispacement document, which confirms the existence of that agreement (seeparagraph 2060 above), reports the visit by two Hispacement employees preciselyto SECIL. Moreover, there is specific documentary evidence of the implementationof the agreement in the context of meetings in which SECIL took part (seeparagraphs 2070 to 2082 above). SECIL's alleged lack of interest in exporting toSpain is thus not of such a nature as to shed a different light on that specificdocumentary evidence. 2110. Finally, the Commission did not put forward Cimpor's refusals to sell to Spanishclients in 1988 and 1989 as evidence of SECIL's participation in the conclusion ofthe agreement. As pointed out above, that evidence is constituted by Cimpor'srecord of the meeting held on 22 July 1985 and the Hispacement document. Inorder to illustrate the implementation of the agreement, the Commission referredto Cimpor's refusal to fill orders for exports of cement from Portugal to Spain in1988 and 1989. Evidence that the agreement was implemented by SECIL is not,however, based on Cimpor's refusal to sell but on participation in various meetings held by the Portuguese and Spanish producers with a view to limiting exports ofcement between Portugal and Spain (see paragraphs 2070 to 2082 above). 5. Conclusion 2111. It follows from all the foregoing that none of the circumstances relied on by theapplicants give grounds for overruling the finding that the disputed agreement wasconcluded and implemented (see paragraphs 2066 and 2092 above). C  Unlawful nature of the applicants' conduct 2112. Since Cimpor and SECIL admit to having been, during the period covered by thecontested decision, the only Portuguese cement producers, and since Oficemen wasthe trade association to which the Spanish cement producers belonged, theagreement concluded by those parties manifestly restricted competition betweenPortuguese and Spanish producers and was such as to have a material effect ontrade between the two Member States concerned. Such an anti-competitiveagreement is one of the kinds of conduct expressly prohibited by Article 85(1)(c)of the Treaty. 2113. Even though the first item of documentary evidence relates to a meeting held on22 July 1985, the Commission was justified in concluding that 'the agreement[constituted] an infringement as from 1 January 1986, the date on which Spain andPortugal joined the Community (contested decision, recital 49, paragraph 1,second subparagraph). From 1 January 1986, the agreement, which continued tobe implemented (see paragraphs 2070 to 2082 above) by parties established fromthat date within the Community, clearly fell within the scope of Article 85(1) of theTreaty. 2114. Oficemen submits that the Commission has not adduced evidence that theagreement or concerted practice was maintained after the accession of Spain andPortugal to the Community. It observes that the documents relating to meetingsafter 1 January 1986 make no reference at all to a Hispano-Portuguese agreement.At those meetings the Spanish representatives merely expressed their disquiet atthe growing imports of grade 30 cement from Portugal and asked the Portugueseproducers to negotiate, with their Government, a change of those aspects of themaximum price system which stimulated such exportation. Cimpor also complainsthat the Commission based its finding of infringement on evidence dating frombefore 1986. SECIL, for its part, observes that Cimpor's record of the meeting of22 July 1985 only mentions an intention to enter into an agreement (see paragraph2056 above). Without breaching the principle of the presumption of innocence, theCommission is not entitled to assume that, as from 1 January 1986, SECIL beganto infringe Article 85 of the Treaty by putting that intention into practice. 2115. Those arguments must be rejected. Although Cimpor's record of the meeting of 22July 1985 predates the accession of Spain and Portugal to the Community, and inthe contested decision that record plays a leading part in proving the existence ofthe infringement found, the Court finds that point 6 of that document shows thatthe parties to the agreement considered that their intention not to compete witheach other could raise problems from the point of view of Community anddomestic competition law in the two countries in question. Such a concern thusdisclosed the intention of Oficemen, Cimpor and SECIL to implement theagreement after 1 January 1986. It is apparent, moreover, from the first sentenceof the extract from the Hispacement document, concerning its two employees' tripto Lisbon in May 1986, that the same parties met in December 1985 and that 'itwas decided to agree on a reciprocal ban on exports between the two countries.When that document was drawn up, namely at the end of May 1986, the Hispano-Portuguese agreement was also described not as an agreement which had expiredbut as an existing agreement. Finally, it has already been observed that theagreement referred to in Article 3(2) of the contested decision was implementedin the framework of the various meetings held by Oficemen, Cimpor and SECILafter 1 January 1986 (see paragraphs 2070 to 2082 above). 2116. The Court must still examine the applicants' arguments that their conduct did notfall within the scope of Article 85(1) of the Treaty. 2117. First, Oficemen, Cimpor and SECIL assert that Cimpor's record of the meetingheld on 22 July 1985 shows the participants' intention to comply with competitionlaw. Such an intention rules out the possibility that the applicants could haveentered into an anti-competitive agreement contrary to the provisions ofArticle 85(1) of the Treaty. 2118. The Court finds that point 6 of the record of that meeting reveals that the partiesconsidered that their intention not to compete with each other could raise problemsfrom the point of view of Community and domestic competition law in the twocountries in question. However, that awareness, far from exonerating the applicantsconcerned of any liability, reveals, as the Commission rightly points out (contesteddecision, recital 49, paragraph 1), the conscious and deliberate nature of theinfringement. 2119. Secondly, SECIL and Cimpor state that the cement industry in Portugal wasnationalised in 1975. One of the results of nationalisation was the priority given toservicing the Portuguese market. The balance between domestic demand andnational production thus arose out of a deliberate policy pursued by the PortugueseState, so that the conduct of the two undertakings falls outside the scope ofArticle 85(1) of the Treaty. 2120. That argument must be rejected. Neither Cimpor nor SECIL have proved thatthrough the conduct of the Portuguese authorities they were denied the degree of autonomy required of them by Article 85(1) of the Treaty (see, to that effect,Joined Cases C-359/95 P and C-379/95 P Commission and France v LadbrokeRacing [1997] ECR I-6265, paragraphs 33 and 34, and Case T-387/94 Asia MotorFrance and Others v Commission [1996] ECR II-961, paragraphs 61 and 65). Thus,there is nothing in the file to show that the Portuguese State prohibited cementexports or exerted pressure on Cimpor and SECIL to restrict their exports toSpain. They thus enjoyed a sufficient degree of autonomy in the choice ofcommercial policy, in particular export policy. Moreover, the circumstances towhich Cimpor and SECIL refer do not explain why the Portuguese producersthought it necessary to give an undertaking to Spanish producers that they wouldnot export to Spain. 2121. Thirdly, Oficemen, Cimpor and SECIL submit that, in view of the divergencebetween Portuguese and Spanish standards, their conduct could not have had ananti-competitive effect. They are of the view that, even if an agreement had beenconcluded between the Portuguese producers and Oficemen, it would have beenrendered purposeless as soon as the Spanish Royal Decree No 1313/88 entered intoforce (see paragraph 2076 above). 2122. That argument must also be rejected. Even though use of cement of a resistancebelow 350 kg per cm2 was prohibited in Spain, the various refusals to sell attest tothe existence of real demand in Spain for cement from Portugal (see paragraphs2083 to 2091 above). Moreover, none of the refusals to sell to Spanish customerswas based on the ground that the Portuguese producers did not produce cementof a quality equal to or greater than that of Spanish cement of resistance 350.Moreover, it was not for the Portuguese and Spanish producers to stem suchdemand. It was conceivable that potential Spanish importers of cement fromPortugal intended to re-export that cement to other States in which the use ofgrade 30 cement was not prohibited. Finally, the agreement in question alsoprohibited exports from Spain to Portugal; the applicants have not even claimedthat there were technical and structural barriers to it. In those circumstances, it wasin any event likely to have an appreciable effect on trade between Spain andPortugal. 2123. Even after the entry into force of Spanish Royal Decree No 1313/1988 on 4January 1989, the disputed agreement was not rendered purposeless, since thePortuguese producers continued to have an interest in seeing their national marketprotected and it was in the Spanish producers' interest that the Portugueseproducers should not hasten to apply to the Spanish authorities for approval oftheir cement types which complied with the requirements laid down by them. Thus,SECIL admitted to making its first application for approval on 3 February 1992(application, point 2.2.6). D  Duration of the infringement 2124. Oficemen, Cimpor and SECIL submit that, should the Court find that theCommission has proved the existence of the infringement, it could not beconsidered to have lasted until 24 April 1989. 2125. The Court has already found that the Commission was right to fix the beginning ofthe infringement as 1 January 1986 (see paragraph 2113 above). 2126. None of the documents in the file show that the agreement was entered into fora limited period. The record of the meeting held on 22 July 1985 reveals that theagreement provided for the organisation of meetings between the parties when'third parties (distributors, retailers, consumers, carriers, etc.) [could undermine]the intentions of the two parties. It was also provided that, at such meetings, theSpanish and Portuguese producers 'should hold open exchanges of information inorder to find a solution to the problem. 2127. In those circumstances, the Commission was right to consider that, in the absenceof any sign to the contrary, the Hispano-Portuguese agreement lasted throughoutthe period in respect of which it has documents confirming the holding of meetingsbetween the Spanish and Portuguese producers at which information on exportsbetween the two countries was examined. 2128. It is unequivocally clear from the records of the meetings held between thePortuguese and Spanish producers on 20 January 1986, 23 January and 5 and 6March 1987 that, at those meetings, the problem of Portuguese imports wasdiscussed and that solutions were proposed, namely an increase in the price ofPortuguese cement and a policy intended to discourage Portuguese operatorsengaging in cross-frontier exports (see paragraphs 2070 to 2082 above). 2129. It is also apparent from the documents mentioned in the contested decision that,even leaving aside document 33.322/1399 (see paragraphs 374 and 2040 above),other meetings between the Spanish and Portuguese producers also took place, inparticular on 25 June 1987, 10 November 1897, 5 February 1988, 21 April 1988, 10May 1988, 27 July 1988, 28 October 1988, 12 January 1989 and 24 April 1989, asshown in Cimpor's documents 'Programa de Acção Conjunta and variousmemoranda and telexes (contested decision, recital 21, paragraph 6). However, theCommission does not have any minutes of those meetings. 2130. The applicants concerned conclude therefrom that the Commission has notadduced any evidence proving that the meetings in question pursued an objectivecontrary to Article 85 of the Treaty. 2131. The Court finds however that, under the 'Programa de Acção Conjunta run byCimpor, a number of meetings were called with the Spanish producers and thatSECIL acknowledges having participated in some of those meetings. If, contrary towhat is suggested by the Commission in the contested decision (recital 21, paragraph 7), it cannot be concluded from documents 33.322/162, 177, 181 and 252,tables drawn up by Oficemen setting out the imports into Spain of cement comingfrom Portugal, that those tables were prepared on the basis of informationcollected from Portuguese producers and that they were discussed at meetingsorganised as part of the 'Programa de Acção Conjunta, the very fact that suchmeetings were held in that context between Spanish and Portuguese producersnevertheless constitutes objective and relevant evidence showing that the agreementlasted from June 1987 until 24 April 1989, when the last meeting of which theCommission was aware took place. Other objective and relevant evidence confirmsthe pursuit of that agreement during the same period. First, it is apparent from thedocuments found by the Commission that, at the time, Cimpor refused any orderfor cement coming from Spain, while at the same time accepting orders relating todeliveries outside the Community (see paragraphs 2083 to 2091 above). Secondly,the telex from Tracoisa of 13 March 1989 mentions the 'bilateral agreementbetween Spanish and Portuguese producers (see paragraph 2089 above). 2132. Since those various items of objective and consistent evidence demonstrate that theagreement continued until 24 April 1989, the Commission was right to concludethat the infringement was committed from 1 January 1986 to 24 April 1989. Breach of the principle of equal treatment 2133. Cimpor and SECIL maintain that, by not finding that all the Spanish undertakingswhich are members of Oficemen or, at least, those which attended the meetingsreferred to in recital 21 of the contested decision, participated in the infringement,the Commission infringed the principle of equal treatment. It is incorrect to allegethat the Hispano-Portuguese agreement was concluded between Cimpor andSECIL, on the one hand, and Oficemen, on the other. It is apparent from thedocuments gathered by the Commission that various Spanish producers, namelyPortland Mallorca, Cementos del Mar, Cementos del Atlántico, PortlandValderrivas, Cementos Portland Hispania, Asland, Hornos Ibéricos, Hispacement,Cementos Cosmos, Tudela Veguin and Cementos Alba, took part in the meetingsbetween Spanish and Portuguese producers. Cimpor and SECIL rely in that regardon Cimpor's record of the meeting held on 22 July 1985 (documents 33.322/155 to157), an internal document of SECIL's concerning the same meeting (document33.322/167), Cimpor's memoranda on the meeting of 23 January 1987 (documents33.322/163 to 166), Oficemen's internal memoranda on that same meeting(documents 33.322/1406 to 1408) and the memoranda relating to the meetings of5 March 1987 (document 33.322/171), of 6 March 1987 (documents 33.322/1410 to1412), of 5 February 1988 (document 33.322/161) and of 12 January 1989(document 33.322/997). 2134. The Commission replies that the representatives of the Spanish producers who tookpart in the meetings referred to in recital 21 of the contested decision were on Oficemen's board of directors and attended the meetings in question in thatcapacity. 2135. Even if the explanation put forward by the Commission were, at least in so far asconcerns the meetings of 23 January 1987 (attended by Mr Viñolas of Asland), of5 March 1987 (attended by Mr Quemeda of Portland Valderrivas, Mr Asunción ofAsland and Mr Fresno of Cementos Portland Hispania), of 5 February 1988(attended by Mr Suana of Hornos Ibéricos) and of 21 April 1988 (attended byMr Magan of Hornos Ibéricos), the Court points out that the fact that traders whowere in a position similar to that of Cimpor and SECIL were not found by theCommission to have committed any infringement cannot in any event constitute aground for setting aside the finding of an infringement by Cimpor and SECIL,provided that that infringement was properly established (Woodpulp II, cited inparagraph 106 above, paragraph 146). The foregoing grounds have shown that, inthe contested decision, the Commission was right to conclude that Cimpor andSECIL participated in the infringement from 1 January 1986 to 24 April 1989. Inthose circumstances, Cimpor's and SECIL's complaint must be rejected. Infringement of the rights of the defence when access to the file was granted A  Incriminating documents 2136. So far as concerns incriminating documents not made available to the applicantsduring the administrative procedure, it must be emphasised again that, even if theextracts from documents reporting the trip of two of Hispacement's employees toLisbon in May 1986 (document 33.322/2901) are disregarded (see paragraphs 369to 374 and 2038 to 2040 above), the Commission adduced, in the contesteddecision, evidence of the existence of the alleged infringement and of theparticipation in it of Oficemen, Cimpor and SECIL. B  Exculpatory documents 2137. In their application, Cimpor and SECIL submit that the parts of the Hispacementdocument (documents 33.322/2898 to 2903) which were not disclosed duringinspection of the investigation file during the administrative procedure (seeparagraphs 369 to 372 above) contains exculpatory evidence. 2138. However, Cimpor and SECIL cannot claim for the first time in their applicationthat the passages initially omitted from the document in question containedexculpatory evidence, since they received the full text of the document in the courseof the administrative procedure, a year and a half before the adoption of thecontested decision, namely on 3 May 1993. If Cimpor and SECIL considered thatthat document contained information which exculpated them, they could have drawn the Commission's attention to that point before the contested decision wasadopted. In any event, none of the information contained in the passages which hadat first been omitted is of such a nature as to shed a different light on the specificdocumentary evidence on which the Commission relied in the SO (points 11 and61(c)) and in the contested decision (recitals 21 and 49) to establish theinfringement (see paragraphs 2101 and 2104 to 2106 above). 2139. Oficemen, Cimpor and SECIL also make a number of observations based ondocuments which they were able to consult following the measures of 2 October1996 and 18 and 19 June 1997 on the matter of access to the file. According tothem, those documents would have been useful in the course of the administrativeprocedure in their defence against the complaint laid against them. Hornos Ibéricosand Blue Circle also rely on a number of documents relating to the same complaint(Hornos Ibéricos: documents 33.322/124 to 133, 170, 905, 966 to 973, 1019, 1020,1027, 1080 to 1089, 1319 to 1322, 1395, 1396 et 1409 and Chapter 9 'Portugal atthe SO; Blue Circle: documents 33.322/2898 to 2903). However, the observationswhich they were able to make on the basis of those documents could not havealtered the outcome of that procedure for those applicants, since they are notreferred to in Article 3(2) of the contested decision (see paragraph 256 above). 1. Case T-59/95 Oficemen v Commission 2140. In its observations of 10 February 1997 Oficemen submits that a number ofdocuments included in the file on Portugal attest to the fact that it was impossiblefor the Portuguese producers to export cement to the Spanish market, sincePortuguese domestic demand was practically identical to their total production andthey were bound by longstanding undertakings with regard to the markets of theformer Portuguese colonies. Thus, Cimpor's report of activities for 1987 (document33.322/905) and SECIL's for 1988 (document 33.322/1072) reveal that during theperiod from 1983 to 1987 Portuguese production was taken up in satisfyingdomestic demand. A letter of 17 November 1987 from Cimpor to SECIL(document 33.322/1021), which mentions the intention of the latter to importcement, is put forward as evidence that the Portuguese producers did not have thecapacity to export. Likewise, the data in the fax sent by Cimpor to SECIL on 7March 1987 (documents 33.322/1025 and 1026) concerning exports to Spain, attestto their sporadic nature and confirm the difficulties encountered by the Portugueseproducers in supplying the neighbouring market. Finally, ATIC's data on importsand exports to and from Portugal in 1989 (document 33.322/197) are put forwardas evidence that the Portuguese industry exported only to those countries withwhich it had traditional links (former Portuguese colonies such as Guinea-Bissauand São Tomé). That information is alleged to prove that the slight potential thatthere was for export was principally channelled towards trade with those markets,thus rendering exports to Spain impossible. 2141. The Court finds however that the alternative explanations which Oficemen putforward in order to justify the low level of trade in cement between Spain andPortugal during the period under consideration, based on the various documentson which it relies, were not of such a nature as to shed a different light on the bodyof specific documentary evidence on which the Commission relied in the SO (points11 and 61(c)) and in the contested decision (recitals 21 and 49), whichunequivocally shows not only that an agreement existed but also that it wasimplemented (see paragraphs 2054 to 2092 above). 2. Cases T-61/95 Cimpor v Commission, and T-62/95 SECIL v Commission 2142. In their written pleadings of 7 and 10 February 1997, Cimpor and SECIL putforward, first, a series of arguments alleging that they did not receive the chaptersof the SO relating to Spain (Chapters 8 and 18) during the administrativeprocedure. They mention in particular point 55 of the SO (p. 155), which theyclaim substantiates their argument that the Spanish technical rules explain thereduction of cement exports to Spain. Moreover, according to SECIL, it is clearfrom the same point (p. 151) that it did not have any interest in subscribing to anagreement which offered the certain prospect to Spanish producers that it wouldnot export its cement to Spain. 2143. The Court points out that, in the SO (points 11 and 61(c)) and in the contesteddecision (recitals 21 and 49), the Commission relied on specific documentaryevidence, not on the market conduct of the undertakings in question, in order toestablish the existence of the infringement and the participation of Cimpor andSECIL in it. Consequently, even if Cimpor and SECIL had had available to themthe extracts from the chapters of the SO on Spain during the administrativeprocedure in order to support their two arguments, those extracts would not havebeen of such a nature as to shed a different light on the specific documentaryevidence on which the Commission relied (see paragraphs 2054 to 2092 above). 2144. Secondly, Cimpor and SECIL submit, in their statements of 7 and 10 February1997, that points 55 and 87 of the SO (pp. 153, 155 to 157 and 220) show that, ifthe absence of exports was indeed the result of an agreement, responsibility for thatinfringement should be attributed not only to Oficemen, but also to the Spanishcement producers. They further claim that, if they had had access to the SO pagesin question, the manifestly discriminatory nature of the contested decision couldhave been avoided. In support of that argument they mention numerous otherdocuments in the investigation file. Thus, they submit that it is clear fromOficemen's Articles of Association (documents 33.322/1216 to 1219) that, in theevent of an agreement being entered into, this would be possible only between thePortuguese and Spanish producers, but not between the Portuguese producers andOficemen. That is also clear, furthermore, from the minutes of Oficemen's boardmeetings of 13 February 1986 (documents 33.322/1311 to 1318), of 18 September 1986 (documents 33.322/1319 to 1323), of 12 March 1987 (documents 33.322/1329to 1333) and of 10 March 1988 (documents 33.322/1334 to 1340), from varioustelexes and notes from Cimpor, SECIL and Oficemen (documents 33.322/1035 to1038), and replies from Asland (documents 33.322/1801, 1802 and 1805) andHispacement (document 33.322/2597) to a question put by the Commission duringthe administrative procedure. 2145. The Court finds that, if Cimpor and SECIL had been able, during theadministrative procedure, to point out that several passages of the SO showed thatSpanish undertakings participated in the Hispano-Portuguese agreement theCommission could at most only have found that the latter had participated eitherin addition to or instead of Oficemen in the infringement complained of. On theother hand, such an observation would not have been of such a nature as toexonerate Cimpor and SECIL in any way, since it would not have shed a differentlight on the specific documentary evidence establishing Cimpor and SECIL'sparticipation in that agreement (see paragraphs 2054 to 2092 above). 2146. Thirdly, Cimpor and SECIL submit, in their written pleadings of 21 January 1998,that, during the period covered by the contested decision, their natural market,namely the Portuguese market, was undergoing a period of expansion. In suchcircumstances, it was allegedly impossible for them to develop an export policy.They cite, in that regard, a report of the board of directors of Ciments d'Obourgof 29 September 1988 (document 33.322/215). They also rely on various minutesof the Comité de Programación, a committee set up by several Spanishundertakings (documents 33.322/2816, 2820, 2829, 2830, 2833 and 2837). Thosedocuments confirm that the Portuguese undertakings were unable to exploit theSpanish market in the long term. They show that, where surplus production wassignificant, as was the case in Spain, definition of an export policy would have madesense only towards countries which had regular deficits and subject to the existenceof permanent capacity to deliver cement and clinker. For that reason, undertakingssuch as Asland, Molins, Sanson, Uniland, Portcemen and Hispacement wereobliged to act together in order to palliate the difficulties entailed by thefluctuations in exportable surpluses. In support of the same argument, SECIL reliesmoreover on a document entitled 'Peter Schuhmacher, of 22 May 1980(document 33.126/6007). It refers, further, to the report on the trip by Mr Torrela,of Hispacement, to Lisbon, on 3 to 5 June 1987 (document 33.322/2954), fromwhich it is clear that neither in 1986 nor in 1987 was there any actual exportcapacity and that it had even imported clinker. The memorandum shows moreoverthat Hispacement was aware that SECIL's export capacities were purely theoretical. 2147. The Court must once again point out that in the SO (points 11 and 61(c)) and inthe contested decision (recitals 21 and 49) the Commission relied on specificdocumentary evidence in order to establish the existence of the infringement andthe participation of Cimpor and SECIL in it. In particular, the record drawn up byCimpor of the meeting held on 22 July 1985 between representatives of cement producers from Spain and Portugal shows that the parties present 'expressed theirclear support for the principle that there should be no cement movements fromSpain to Portugal or from Portugal to Spain that are not instigated or controlledby the cement industry of either country. The fact that various documents confirmthat the Portuguese undertakings had no interest in or any possibility of exploitingthe Spanish market in the long term is not of such a nature as to shed a differentlight on the documentary evidence used by the Commission. Moreover, theargument put forward by Cimpor and SECIL makes no mention of the interestwhich Portuguese producers had in Spanish producers' not exporting theiroverproduction to Portugal. 2148. Fourthly, Cimpor and SECIL consider that the content of a number of documentsis inconsistent with the existence of an Hispano-Portuguese agreement or theirparticipation in it. They explain that their participation in various meetings withSpanish producers must be understood as a prudent response on their part to theconcerns expressed by the Spanish producers. They submit in their writtenpleadings of 21 January 1998 that several documents point out the large exportcapacity of the Spanish undertakings. Those documents are two plans setting outCim-Bel's strategy (documents 33.126/8382 and 8406) and internal Lafargememoranda of 20 and 25 April 1988 (documents 33.126/4631 and 4621 to 4624).Cimpor also relies on a CCB document entitled 'Basic information 1987 (seeparagraph 1169 above) (documents 33.126/1634 and 1636). It was natural for thePortuguese undertakings to view with some apprehension the concerns of theSpanish producers, whose surpluses were equal to or greater than the Portuguesemarket, and which were complaining of unfair competition conditions. Cimpor andSECIL claim that, if they had had access to those documents during theadministrative procedure, they would have been better able to explain the contextin which the meetings with the Spanish producers took place. 2149. That argument must be rejected. The background against which those meetingsbetween Spanish and Portuguese producers took place was necessarily known tothe latter, which included Cimpor and SECIL. There was therefore nothing toprevent them from putting forward that argument even during the administrativeprocedure. Moreover, it must be stated that the aforesaid documents, which attestto the existence of Spanish exports to the German, Belgian, Netherlands andFrench markets, contain nothing which constitutes either a direct or indirect linkwith the meetings which took place between the Spanish and Portuguese producersand which are referred to in recital 21 of the contested decision. Cimpor andSECIL have thus not succeeded in demonstrating that access, during theadministrative procedure, to the documents to which they refer, would haveenabled them to make comments of such a nature as to shed a different light onthe specific documentary evidence on which the Commission relied in the SO(points 11 and 61(c)) and in the contested decision (recitals 21 and 49). 2150. Cimpor and SECIL submit, in their written pleadings of 7 February 1997, thatcertain Oficemen documents (documents 33.322/1225 and 1372 to 1374) show thatthere were some imports of cement and clinker from Spain to Portugal between1986 and 1989. They observe next that, in the report for 1988 drawn up by theDirectorate General for Mines and Construction (documents 33.322/1245 to 1289),the pages on cement imports and exports are missing. In their written pleadings of21 January 1998, they state that the Informe General al Consejo de Administración(General Report to the Board of Directors) of Hispacement of March 1987(document 33.322/2941), proves that trade in cement between Portugal and Spaincontinued to grow between 1986 and 1989, when the new Spanish technical rulesblocked the access of Portuguese cement to the Spanish market. The documentconfirms that meetings were held by Spanish producers, in particular betweenHispacement and Expocemsa, on coordinating the export of bagged cement andclinker to Portugal. 2151. The Court finds that the pages of the report drawn up by the Directorate Generalfor Mines and Construction on the import and export of cement were accessibleto the applicants following the measure of 18 and 19 June 1997. The pages inquestion are pages 57 to 67, which are included in the file as documents33.322/1273 to 1278. However, in their written pleadings of 21 January 1998,Cimpor and SECIL did not claim that the fact of not having had access to thosedocuments during the administrative procedure was detrimental to their defence. 2152. As to the argument that there was an increase in cement exports between the twocountries concerned, it is clear from Cimpor's record of the meeting held on 22July 1985 that the agreement between the Portuguese and Spanish producers didnot ban all cement movements between the two countries but only movements thatwere not instigated or controlled by the cement industry of either country (seeparagraph 2045 above). Moreover, the argument in question has already beenraised by the interested parties during the administrative procedure. It was howeverrejected in the contested decision. The Commission was of the opinion that 'theincrease in exports [was] not sufficient to refute the documentary evidence(contested decision, recital 21, paragraph 11, last subparagraph). It also took theview (contested decision, recital 49, paragraph 4) that: 'The argument put forwardby the parties that the agreement did not prevent cement movements between thetwo parties ... carries no weight. As the Court ruled in 1966, the fact that anagreement does not in any way prevent or indeed promotes an increase in thevolume of trade between Member States does not mean that there may not be arestriction of competition or that the agreement cannot affect trade betweenMember States, since such trade could have developed under other conditions ifthere had been no restrictive agreement. In so far as the Oficemen documents(documents 33.322/1225 and 1372 to 1374) and the Hispacement report of March1987 (document 33.322/2941) substantiate an argument which was already putforward during the administrative procedure, and in the absence of any explanationby the applicants of how those documents could add to that argument, it must be held that Cimpor and SECIL have not been able to establish that lack of access tothe said documents during the administrative procedure infringed their rights ofdefence. 2153. Cimpor also refers, in its memorandum of 7 February 1997, to an extract fromValenciana's annual report for 1988 (document 33.322/1818), which mentionsunder-use, in the order of 30%, of the production capacity available in Spain. Itmaintains that it could have used that document in support of its argument that itmade no sense for it, as an undertaking without any significant export capacity, tofavour exportation to markets in which the potential offer greatly exceeded demandas a result of plant capacity. 2154. The Court points out that the fact that a Spanish undertaking, namely Valenciana,experienced 30% production under utilisation of capacity bears no directrelationship to the Hispano-Portuguese agreement found in the SO and in thecontested decision. In any event, the document relied on is not of such a nature asto shed a different light on the specific documentary evidence on which theCommission relied in the SO (points 11 and 61(c)) and in the contested decision(recitals 21 and 49) in order to find that there was an infringement and thatCimpor participated in it. It is precisely a Cimpor memorandum on a meeting of22 July 1985 which states that the parties present 'expressed their clear support forthe principle that there should be no cement movements from Spain to Portugalor from Portugal to Spain that are not instigated or controlled by the cementindustry of either country. 2155. In its written pleadings of 21 January 1998, SECIL refers to an internalmemorandum of Cimpor's of 12 February 1987 (document 33.126/108), whichallegedly attests to the importation in 1987 by Cimpor of cement in areas on theborder with Spain in sufficient quantities for the Spanish undertakings to feelthreatened. It also cites a Cimpor document of 12 April 1988 regarding Cementosdel Norte (document 33.322/185) which refers to the serious threat from the exportof Spanish surplus to Portugal and the need for the dissuasive measures taken byCimpor. It claims that it could have used those documents to explain the non-collusive relationship between undertakings in Spain and Portugal. It explains thatthe Spanish market was threatened by the lower prices in Portugal and thePortuguese market by the Spanish surpluses. There was competition, even if it wascautious and restricted by the circumstances, and any thought of limiting it bymeans of a restrictive agreement would have been an illusion. That analysis wascorroborated by the study carried out by Cimpor on 17 May 1988 of the takeoverbid made by Cementos del Norte for the Souselas factory (documents 33.322/256to 269). At the time, Cementos del Norte felt threatened by the Souselas factory'sexport capacity and its plan to purchase it was seen as a way of eliminating acompetitor. Cimpor was aware of the aggressiveness of the Spanish cementproducers and did indeed consider the market of the north of Spain as a naturalmarket with great potential. Neither the strategy pursued by Cementos del Norte nor Cimpor's reaction are consistent with the existence of an agreement betweenthe cement industries of both countries for the purpose of protecting theirrespective home markets and discouraging trade in cement. 2156. The Commission, in the SO (points 11 and 61(c)) and in the contested decision(recitals 21 and 49), relied on specific documentary evidence in order to establishthe existence of a Hispano-Portuguese agreement and the participation of thevarious parties in it. The documents mentioned in the foregoing paragraph wouldnot have been useful to SECIL in its defence. The Commission has never claimedthat the agreement complained of had put an end to all actual or threatenedcement export between the two countries concerned. The SO (point 11, secondparagraph) and the contested decision (recital 21, paragraphs 3 to 7) refer in factto various meetings between Portuguese producers and Oficemen 'with thepurpose of exchanging information on the development of cement exports betweenthe two countries. Moreover, the existence of production surpluses in Spain wasnot such as to render Article 85(1) of the Treaty inapplicable to the anti-competitive conduct of the Portuguese producers, a matter which is unequivocallyclear from various items of specific documentary evidence (see paragraphs 2054 to2092 above). Finally, the circumstances relied upon by the applicant show that thePortuguese and Spanish producers had a real interest in concluding the agreementat issue. Accordingly, if SECIL had been able to show, during the administrativeprocedure, on the basis of documents 33.332/108, 185 and 256 to 269, that in 1988there were production surpluses in Spain and a threat of cement being exportedbetween the two countries, that could not have altered the outcome of theprocedure. For the sake of completeness, the Court points out that the documentsrelied upon by SECIL only concern the individual conduct of Cimpor on themarket and are not such as to exonerate SECIL in any way. 2157. Fifthly, Cimpor and SECIL submit, in their written pleadings of 21 January 1998,that various documents could have reinforced their argument that the main topicsof discussion at the meetings between Spanish and Portuguese producers, duringthe period covered by the contested decision, were technical requirements andquality control of imported cement. They refer to the minutes of the meetings ofthe board of directors of Oficemen of 18 September 1986 (documents 33.322/1319to 1323), of 12 February 1987 (documents 33.322/1329 to 1333) and of 10 March1988 (documents 33.322/1334 to 1340). The use of those documents during theadministrative procedure would have therefore enabled them to strengthen the lineof argument that the Spanish undertakings were above all concerned about theunequal conditions of competition and the notion that trade in cement between thetwo countries should be on the basis of similar technical regulations and qualities. The minutes of Asland's board of directors meeting of 24 September 1986(documents 33.322/1607 and 1608) would also have been useful to that end. Thatdocument purportedly shows that Asland was concerned by cement imports of nodeclared origin and by the need to adopt measures to thwart them. Far from contemplating seriously the possibility of agreeing to share the market, Aslandsought rather the adoption of monitoring statistics and quality checks. 2158. Cimpor relies on other documents which, in its view, could have reinforced itsargument that the main topic of discussion at the meetings between Spanish andPortuguese producers, during the period covered by the contested decision, wasthat of the technical requirements in force in the two countries and theirimplications for bilateral trade. In its written pleadings of 7 February 1997, it refersto an extract from the agenda for the meeting of the Oficemen board of directorsof 15 February 1990 (documents 33.322/1362 and 1363) and, in its written pleadingsof 21 January 1998, it relies on minutes No 11/88 of SECIL's board of directors of12 May 1988 for the meeting with the Spanish cement producers (documents33.322/1048 and 1049), and an internal SECIL memorandum of 10 May 1988(documents 33.322/1051 and 1052). The two last-mentioned documents also showthat the undertakings in the two countries closely followed changes in technicalrequirements 'in order to avoid placing obstacles in the way of entry of cement intoeach country. 2159. It must be stated that that argument was already pleaded by the applicants duringthe administrative procedure (contested decision, recital 21, paragraph 10) andrejected in the contested decision. Thus, as the Commission found (contesteddecision, recital 49, paragraph 3): 'if the parties' concern was to prevent thecirculation of cement that did not correspond to the standards of a country, suchconcern does not explain why the monitoring of cement movements between thetwo countries by the producers themselves would have brought the cementexported into conformity with the standards of the country of destination. Inaddition ... it is not the task of an undertaking (or association of undertakings) toact, on its own initiative, in place of the public authorities responsible forimplementing the laws of its country .... Moreover, it considered (contesteddecision, recital 21, paragraph 1) that the argument was not sufficient to 'justify thecontrol of any exports from Spain to Portugal since Spanish cement [was] at leastgrade 35 and thus higher than the Portuguese grade 30. In so far as documents33.322/1048 and 1049, 1051 and 1052, 1319 to 1323, 1329 to 1333, 1334 to 1340,1362, 1363, 1607 and 1608 substantiate an argument which was already put forwardduring the administrative procedure, and in the absence of any explanation by theapplicants on what those documents could add to that argument, it must be heldthat Cimpor and SECIL have not been able to establish that, had they had accessto the said documents during the administrative procedure, that procedure wouldhave had a different outcome. 2160. Cimpor adds, in its written pleadings of 21 January 1998, that various documentsshow that the producers of other Member States and Cembureau attachedimportance to harmonisation and to the need for competition to take place inconditions of equality and without dumping (minutes of the meetings of the FICboard of 29 June 1977 (documents 33.126/1953 to 1965), 12 July 1978 (documents 33.126/1967 to 1974), 17 October 1979 (documents 33.126/1976 to 1988), 12December 1979 (documents 33.126/1990 to 1999), 9 July 1980 (document33.126/2009), 8 December 1982 (documents 33.126/2026 to 2033), 23 February 1983(documents 33.126/2035 to 2043) and 13 July 1983 (documents 33.126/2044 to2049)). Access to those documents during the administrative procedure would havemade it possible to emphasise the relevance of technical regulations and qualitycontrol in the context of the relationship between the Spanish industry and thePortuguese industry. 2161. However, the Court finds that the documents aforementioned are not connectedwith the infringement found to have been committed. Moreover, they do notcontain any information concerning the Spanish and Portuguese markets orproducers. Their contents could not therefore have shed a different light on thespecific documentary evidence used by the Commission both in the SO (points 11and 61(c)) and in the contested decision (recitals 21 and 49). 2162. Sixthly, Cimpor and SECIL refer, in their memoranda of 21 January 1998, to alarge number of documents relating to agreements concluded between Italianundertakings and between Italian and Swiss undertakings (documents 33.126/2902,2916, 2919 to 2921, 2943, 2976, 2985 to 3013, 3014 to 3032, 3033 to 3036, 3042,3043, 3053 to 3059, 3110 to 3126, 3127 to 3131, 11878 to 11966, 12083 to 12113 and12116 to 12135). They claim that access to those documents during theadministrative procedure would have enabled them to show more clearly andforcefully the weakness of the evidence against them, taking account of theapparently institutionalised and organised market sharing by the undertakings in thecement industry in the various Member States. 2163. In that respect, it is sufficient to observe that the possible existence ofinstitutionalised agreements between Italian and Swiss producers is not of such anature as to shed a different light on the specific documentary evidence on whichthe Commission based itself both in the SO (points 11 and 61(c)) and in thecontested decision (recitals 21 and 49) in order to find the existence of theinfringement and that the Portuguese producers participated in it. 2164. It follows from all the foregoing that the rights of the defence of Oficemen, Cimporand SECIL were not affected by the lack of access to the parts of the SO and tothe documents on which they relied in order to exculpate themselves during thepresent proceedings. Conclusion 2165. It follows from all the foregoing (see paragraphs 2036 to 2164 above) that the pleasexamined must be dismissed.                                                                     VII  Pleas alleging infringements of Articles 85(1) and 190 of the Treaty, the principleof equal treatment and the rights of the defence in that the Commission finds thatthere was a Franco-German agreement and concerted practice contrary to Article85(1) of the Treaty and that various applicants participated therein (contested decision,Article 3(3)(a)) Preliminary observations 2166. Dyckerhoff (T-35/95), SFIC (T-36/95), Cedest (T-38/95), Ciments Français(T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95) and BDZ (T-48/95), which arefound in Article 3(3)(a) of the contested decision to have committed aninfringement of Article 85(1) of the Treaty consisting in a Franco-Germanagreement and concerted practice, dispute the existence of such an agreement andconcerted practice and also their participation in the infringement. CimentsFrançais and Heidelberger specifically dispute the existence of the various elementsin respect of that infringement, namely an agreement on the sharing of theSaarland market, various concerted practices and an agreement on the generalregulation of cement supplies between France and Germany, or at the very leasttheir participation therein. Dyckerhoff, SFIC, Cedest, Lafarge and BDZ dispute theexistence of certain of those elements, or at the very least their participationtherein. Ciments Français, Heidelberger and Lafarge dispute the length of theirparticipation in the infringement. Ciments Français also criticises the artificialnature of the link which the Commission finds between the three elementsidentified in respect of that infringement. The applicants' complaints relate both tothe assessment of the economic background to the alleged Franco-Germanagreement and to the interpretation of the evidence which the Commission putsforward in the contested decision. 2167. Before assessing the substance of the various arguments put forward, it isappropriate to examine the infringement in question as presented in the contesteddecision. 2168. The Commission states in Article 3(3)(a) of the contested decision that SFIC,Lafarge, Ciments Français, Cedest, BDZ, Dyckerhoff and Heidelberger 'infringedthe provisions of Article 85(1) of the Treaty from 23 June 1982 to at least 30September 1989 by participating in agreements and concerted practices involvingthe regulation of cement supplies from France to Germany and from Germany toFrance. The reasoning which the Commission devotes to this infringement in thecontested decision is to be found, in the account of the facts, in recital 22,paragraphs 1 to 11 and 13 to 18, first subparagraph, and, in the legal assessment,in recital 50, paragraphs 1 to 4. 2169. It is apparent from that reasoning that the Commission, in reliance on the contentof a number of documents, finds the existence, from 1982, of an agreement toshare the Saarland market and concerted practices between various French and German producers and associations and, from 1984, of an agreement on thegeneral regulation of cement supplies between France and Germany. 2170. The Commission states in recital 50, paragraph 4, first and third subparagraphs: 'In view of the fact that the agreement on the sharing of the Saarland market, theconcerted practices involved in the pursuit of a solution on the limiting of sales byCedest in Germany apart from the Saarland, and the 1984 agreement referred toin the letter of 22 September 1986 all had as their object the sharing of marketsand the restriction of cross-frontier flows of cement between France and Germany,the Commission takes the view that the agreements and concerted practices maybe deemed to be a single and continuous infringement. ... The single and continuous infringement relating to the restriction of cross-frontierflows between France and Germany was committed, from 23 June 1982 to 30September 1989, by SFIC, Cedest, Ciments Français, Lafarge, BDZ, Dyckerhoffand Heidelberger. 2171. The Commission therefore finds the participation of those applicants in aninfringement consisting of various elements, the existence of which it claims to haveestablished on the basis of specific documentary evidence. The arguments putforward by the applicants seek to show that the Commission has failed to adduceproof of its allegations The Court will examine those arguments in turn accordingto the element of the infringement to which they relate. Agreement to share the Saarland market 2172. It follows from the contested decision that the Commission, as it has confirmed byimplication in its written submissions and expressly in its answer to a writtenquestion put by the Court in Cases T-35/95, T-36/95, T-38/95, T-39/95, T-42/95,T-43/95 and T-48/95, considered that one of the constituent elements of theinfringement referred to in Article 3(3)(a) of the contested decision was anagreement to share the Saarland market. 2173. Without providing any specific details of the date on which the agreement wasconcluded or from which it was applied, the Commission observes in the LegalAssessment of the contested decision (recital 50, paragraph 2, first and secondsubparagraphs): 'The memoranda of 23 June 1982, 22 July 1982 and 17 November 1982 ... showthat the sharing of sales on the Saarland market between Ciments Français, Cedest,Heidelberger and Dyckerhoff was an established fact that was not disputed by any of the undertakings concerned, since it was only other markets that were disputed(Saarland excluded). The existence of this agreement is confirmed by the statement made by Dyckerhoffto Ciments Français at the meeting on 9 and 10 May 1983 ... that it did not intendto sell in Saarland and France the cement obtained through the grinding of 100 000tonnes of clinker at the factory of Ciments Luxembourgeois. 2174. The Commission considers that the existence of this agreement not only predatesthe period in issue but is also contemporaneous with that period. It points out(recital 22, paragraph 17, second subparagraph) that 'the agreement on Saarlandis referred to in the notes of two different producers; the agreement is mentionednot only as a historical fact but also as an existing fact .... 2175. The Commission maintains that the three documents to which it refers in recital 50,paragraph 2, first subparagraph, of the contested decision establish that Cedestbegan to sell cement in German Länder other than Saarland, which led theGerman producers to react by 'attacking the market in eastern France to thedetriment of the French producers there. This move by Cedest did not affect theapplication of the agreement to share the Saarland market, however, so that thepreexisting agreement continued and the other parties concerned by the generalregulation of cement supplies between France and Germany, following Cedest'sconduct, took part in the agreement to share the Saarland market on that occasionby incorporating it into a broader framework. 2176. The Commission thus explains (recital 50, paragraphs 2, third subparagraph, and3, first subparagraph): 'This agreement on the sharing of the Saarland market initially involved CimentsFrançais, Cedest, Heidelberger and Dyckerhoff. However, on the basis of the pointsmade in paragraphs 3, 4 and 5 below, the Commission considers that theagreement forms part of the wider arrangements covering relations as a wholebetween the German and French producers, not just these four producers alone. Following the exports by Cedest to the German Länder other than Saarland andthe German producers' reaction in France, bilateral consultations took place witha view to limiting cross-frontier flows of cement. 2177. The bilateral agreements referred to correspond, in the structure of the contesteddecision, to the concerted practices referred to in Article 3(3)(a) of the contesteddecision. 2178. Furthermore, the Commission states in recital 50, paragraph 4, secondsubparagraph that: '... even though initially SFIC, BDZ and Lafarge were not parties to the agreementon the Saarland, they accepted it as from 23 June 1982, i.e. as from the time whenthey acted to extend the agreement on the Saarland to other German Länder andto fit the agreement into the broader framework of the regulation of trade flowsbetween France and Germany. 2179. The Commission also states (recital 50, paragraph 4, first subparagraph) that thefact that 'the agreement on the sharing of the Saarland market, the concertedpractices involved in the pursuit of a solution on the limiting of sales by Cedest inGermany apart from the Saarland, and the 1984 agreement referred to in the letterof 22 September 1986 all had the same object gives grounds for it to regard thoseagreements and concerted practices as a single and continuous infringement. 2180. Consequently, even though in the contested decision the Commission finds aninfringement only in respect of the concerted practices implemented between 1982and 1984 and the agreement concluded in 1984 when it states (recital 50, paragraph3, final subparagraph) that '[t]he concerted practices described here, which tookplace from 1982 to 1984, and the 1984 agreement resulting from the letter of 22September 1986 constitute infringements of Article 85(1) committed by SFIC,Cedest, Ciments Français, Lafarge, BDZ, Dyckerhoff and Heidelberger, its failureexpressly to refer to the agreement to share the Saarland market leaves no scopefor ambiguity as to the characterisation by the Commission of that agreement in thecontested decision, contrary to what is alleged by BDZ. Moreover, the wording ofArticle 3(3)(a) of the contested decision refers to the participation of the applicantsin question in agreements and concerted practices. The use of the plural confirmsthat the agreement to share the Saarland market is regarded as one of theconstituent elements of the infringement. 2181. As regards the evidence, Dyckerhoff, Ciments Français, Heidelberger and BDZclaim that the Commission has failed to establish the existence of an agreement toshare the Saarland market in 1982 and 1983. Cedest (T-38/95) denies havingparticipated in such an agreement at that time. 2182. For the purpose of establishing the existence of the agreement, the Commissionrelies in the contested decision (recitals 22, paragraph 2, and 50, paragraphs 1 and2) on, first, four documents and, second, the setting-up of a transport company, theSaarländische Silo-Transport GmbH (hereinafter 'SST). 2183. The four documents in question lead the Commission to consider that in 1983 theagreement to share the Saarland market was an established and undisputed fact forCiments Français, Cedest, Heidelberger and Dyckerhoff (contested decision, recital50, paragraph 2). 2184. However, the Commission's analysis of those matters in the contested decision andin the context of the present proceedings cannot be accepted. 2185. It is apparent from two documents referred to in the contested decision that theagreement to share the Saarland market to which they refer formed part, at leastuntil Cedest adopted a more aggressive commercial approach in Germany, of abroader framework involving the regulation of transfers of cement between Franceand Germany. 2186. First, an internal memorandum from Vicat (documents 33.126/6055 to 6057) dated22 July 1982 and entitled 'Deliveries of German cement to Eastern France, statesthat sales in the Saarland market, at least until 1977, were made in accordance witha specific quota arrangement between Cedest, Ciments Français, Dyckerhoff andHeidelberger. 2187. In point 1 of that memo, which deals with the background to supplies of Germancement in eastern France, the author points out that: 'Historically, the starting point to this business was when Saarland became aneconomic part of Germany in 1959. ... In the period 1947-1959, cement was supplied by French (Thionville andHagondange) and German steelmakers under a specific quota system. Thus, untilrecently, deliveries were broken down as follows:  SCF [Ciments Français] = 120 000 tonnes/year through SaarländischeZement-Gesellschaft (affiliated to SCF);  Cedest = 90 000 tonnes/year;  German producers (Dyckerhoff from the Gommel plant and Heidelberger)= 250 000 tonnes/year. ... This generally accepted situation was considerably altered some five years ago byCedest which, not content with supplying the Saarland market, acquired an entiresection of German consumers representing an annual share of some 100 000 to 120000 tonnes/year. The German producers protested vehemently, then, tired offruitless discussions, took the initiative by entering eastern France with the aim ofmaking good their losses on the French market, in particular by targeting Cedestcustomers. 2188. The author of the memorandum therefore considered that the previous situation,which included an agreement to share the Saarland market, was considerablyaltered by Cedest's conduct. Cedest was no longer satisfied with its quota share inSaarland and began to sell a quantity of approximately 120 000 tonnes to Germancustomers outside Saarland. This considerable change in the situation led the German producers to react and to begin to sell their cement in France, moreparticularly in the east. The author of the memorandum therefore saw theagreement to share the Saarland market as part of a broader arrangement whichalso covered transfers of cement between France and Germany in areas other thanSaarland. 2189. The remaining passages in the document confirm that subsequently the agreementto share the Saarland market, which existed at least from 1959 until 1977, was nolonger applied. 2190. Thus the memorandum goes on: 'Despite the devaluation of the French franc and the price freeze (11.6.82),German producers decided to intensify their action in the East. ... Furthermore, Cedest is spoiling the climate which can only result in conflict, aconflict that is liable to spread at a time when we are endeavouring to increase ourtonnage. The problem remains unsolved, however, as regards the tonnes taken on theFrench market by German producers, owing to the attitude of Cedest. 2191. Accordingly, it cannot be concluded from the memorandum in question that anagreement to share the Saarland market existed in 1982, as the Commission claims(contested decision, recital 50, paragraph 2). 2192. Second, it follows from a handwritten internal memorandum dated 23 June 1982by Lafarge (documents 33.126/6592 to 6596) referred to in recital 22, paragraph 4,of the contested decision that the agreement to share the Saarland market whichexisted until the 1970s represented the reaction of the producers concerned to thefirst disruption of relations between French and German producers. In the contextof that reaction it was decided to split the Saarland market by giving one half ofsales to the French producers and the other half to the German producers, whichsupports the information in Vicat's memorandum of 22 July 1982 that Cedest andCiments Français held a quota of 210 000 tonnes and Dyckerhoff and Heidelbergera quota of 250 000 tonnes (see paragraph 2187 above). The Lafarge internalmemorandum of 23 June 1982 confirms that the agreement to share the Saarlandmarket fitted into a broader context of regulation of transfers of cement betweenFrance and Germany. 2193. That memorandum records discussions between Lafarge and Dyckerhoff. Althoughthe German producer in question is not expressly named in the document, it canbe identified from the use of the letters 'GR in the memorandum to indicate what was said by Mr Grüner, a Dyckerhoff employee, and also from what is stated in thecontested decision (recital 22, paragraph 4) and the arguments exchanged by theparties in Cases T-35/95 and T-43/95. 2194. The author of the memorandum reports what Mr Grüner said as follows: 'Gr 1) Background Two years ago, opportunity to speak to G d'A. about  Laf. [Lafarge] in Germany  Cedest's relations  South Germany The first disruption was Saarland. Rule of the game sharing. France the resultbeing Germany a price increase of DM 15 or %. Disastrous clause 5 000 t too much -> necessary. 10 000 reaction That worked Towards 1970 the Thionvillaise began to supply 20-30 000 ... later -} W [Wössingen] ... 2195. The Commission states in the contested decision (recital 22, paragraph 4), withoutbeing contradicted by the applicants, that the 'Thionvillaise meant Cedest. 2196. It is apparent upon examining the memorandum that Cedest had ceased to complywith the agreement to share the Saarland market at the beginning of the 1970s andhad clearly exceeded its quota. Since it follows from Vicat's internal memorandumof 22 July 1982 that Cedest had also sold cement in German regions other thanSaarland since the end of the 1970s, which would have considerably altered theposition thus far prevailing between France and Germany (see paragraph 2187above), Lafarge's memorandum confirms that Cedest's conduct and the Germanproducers' reaction related to both the Saarland and the various other borderregions. 2197. The author of the Lafarge memorandum states elsewhere that '... Cedest tried todemolish the Fr. sys. ..., which also demonstrates that Cedest's attitude was seento threaten the entire position. 2198. The author of the memorandum also states that 'BC asks 'What are Cedest'srights since this has been going on for 10 years? Those words were spoken by Mr B. Collomb, of Lafarge, who was at the meeting representing the interests ofWössingen (formerly Portland Zementwerk Wössingen, PZW for short), a Germansubsidiary of Lafarge (contested decision, recital 22, paragraph 11, fourthsubparagraph). His words show that the disruption caused by Cedest's conduct hadbeen continuing for 10 years when the memorandum was drafted. 2199. Accordingly, it cannot be maintained that the Lafarge internal memorandum of 23June 1982 shows that the agreement to share the Saarland market was still beingapplied in 1982 and 1983. 2200. That document and the preceding document show that the agreement to share theSaarland market was an arrangement whose scope extended beyond the boundariesof Saarland and covered all relations between France and Germany. Theagreement was not to sell cement outside the home frontiers and where sales weremade these were to be made within the agreed limits, as for the Saarland market,which was an exceptional case owing to its historical attachment. However, the twodocuments do not show that the agreement still existed in 1982 and 1983, since theyrecord that it was called in question not only by Cedest but also by the Germanproducers. 2201. The Commission cites two further documents in support of its argument: anundated internal note by Lafarge (documents 33.126/6582 and 6583), cited in recital22, paragraph 7, of the contested decision, setting out the content of discussionsheld at a meeting on 17 November 1982 between Cedest, Dyckerhoff andHeidelberger, and a summary record drawn up by Ciments Français on 17 May1983 (documents 33.126/4251 to 4253), cited in recital 22, paragraph 9, of thecontested decision, which reports a meeting between Ciments Français andDyckerhoff on 9 and 10 May 1983. 2202. However, these two documents do not contradict the conclusions which may bedrawn from an examination of Vicat's internal memorandum of 22 July 1982 andthe Lafarge memorandum of 23 June 1982. 2203. First, the undated internal note by Lafarge, entitled 'Summit MeetingCEDEST/DYCK/HEI 17/11, is headed 'JM to B. Collomb. The first paragraphis worded as follows: 'Knut BFB called me this afternoon to give me a briefaccount of yesterday morning's meeting, which continued through lunch, all in thebest atmosphere  participants: Seillière + Renard Lose-Grüner Brenke. Theinitials 'JM are those of Mr J. Marichal, representing Lafarge. Mr Seillière andMr Renard represent Cedest. The abbreviation 'Knut BFB corresponds to thename of one of Lafarge's associates in its Wössingen subsidiary, Mr Knut Bücker-Flürenbrock. Mr J. Lose and Mr H. Grüner represent Dyckerhoff. Mr T. Brenkerepresents Heidelberger. 2204. It therefore follows from the first paragraph of the note, which is not reproducedin the contested decision, that the information which it contains comes fromsomeone, Mr Knut Bücker-Flürenbrock, who had not participated in the meetingon 17 November 1982. 2205. In its observations of 7 January 1998 concerning access to the Commission filewhich it had been granted following the measure of 18 and 19 June 1997, Cedestrelied, in particular, on the content of an internal note of Lafarge of 7 January 1983(documents 33.126/7514 to 7516), to which it had not been given access during theadministrative procedure, to challenge the probative value of the internal Lafargenote cited in recital 22, paragraph 7, of the contested decision and to establish thatit had continued to act independently in Germany during that period. 2206. It should be emphasised that the note of 7 January 1983, which the Commission,at the hearing in Case T-38/95, did not deny had an objective link with a complaintagainst Cedest, would not only have been useful to Cedest for the purpose of itsrights of defence during the administrative procedure (see paragraph 247 aboveand paragraphs 2284 to 2290 below) but sheds fresh light on the content of theinternal note by Lafarge referred to in recital 22, paragraph 7, of the contesteddecision as regards what was actually said by Cedest's representatives during themeeting on 17 November 1982 with the representatives of Dyckerhoff andHeidelberger. 2207. The internal note of 7 January 1983 is an internal record of the informationobtained by two Lafarge representatives, Mr Collomb and Mr Marichal, at ameeting on 10 December 1982 with, inter alios, the representatives of Dyckerhoffand Heidelberger on the occasion of the twenty-fifth anniversary of the brothers E.and K. Bücker-Flürenbrock, Lafarge's associates in Wössingen. Under the headingthat note states, 'Lose and Bremke: 'Nothing very special, very friendly.  Thetraditional refrain: You should do business in the FGR, but nothing new.  Yes,we have had a conversation with Cedest. The form was very subdued, pleasant, butessentially there is no change. On the other hand, they made no reference to whatKnut Bücker-Flürenbrock claims was said by Cedest at that meeting, namely: Weare quite happy for RMC to obtain additional tonnage of cement from Wössingen.In that case, however, RMC will purchase less cement in Rheinland-Westphalia,that is from Dyckerhoff. 2208. Several factors show that this extract from the note refers to the meeting on 17November 1982 between Cedest, Dyckerhoff and Heidelberger. First, Mr Loserepresents Dyckerhoff and the name 'Bremke corresponds to Mr T. Brenke, whorepresents Heidelberger. Second, the meeting to which the note of 7 January 1983refers took place on 10 December 1982, less than a month after the meeting on 17November 1982 between Cedest, Dyckerhoff and Heidelberger. Third, both notes,the note of 7 January 1983 and the note referred to in the contested decision(recital 22, paragraph 7), are internal notes of Lafarge, drafted by the same person, Mr Marichal. Fourth, the wording of the note of 7 January 1983 shows the linkbetween that note and the undated note referred to in the contested decision(recital 22, paragraph 7). Thus the first paragraph of the undated note states thatit is a record of the meeting of 17 November 1982 given to Mr Marichal by Mr K.Bücker-Flürenbrock via the telephone on 18 November 1982 (see paragraph 2203above). The note of 7 January 1983 not only mentions the pleasant atmosphere atthe meeting which Mr Lose, of Dyckerhoff, and Mr Brenke, of Heidelberger, hadwith the representatives of Cedest, but refers expressly to what Mr Bücker-Flürenbrock ascribes to Cedest during that meeting (see preceding paragraph). 2209. The wording of the note of 7 January 1983 and the source of the information whichit records therefore remove all probative value from the document which theCommission used in the contested decision (recital 22, paragraph 7) as evidence ofwhat Cedest's representatives said about the Saarland market at the meeting of 17November 1982. 2210. First, it directly contradicts the wording of the note cited by the Commission in thecontested decision and from which it concludes that Cedest was prepared to limitits sales in Germany and adapt them to market trends (recitals 22, paragraph 7,and 50, paragraph 3, second subparagraph). Second, unlike the internal note citedin the contested decision (recital 22, paragraph 7), they report information obtainedfrom persons, Mr Lose and Mr Brenke, who actually attended the 17 November1982 meeting between Cedest, Dyckerhoff and Heidelberger. 2211. It follows that, apart from the fact that the failure to grant access to the noteduring the administrative procedure affected the rights of defence of Cedest (seeparagraphs 2284 to 2290 below), the content of the note shows that theCommission committed an error of assessment when, relying on the extracts fromthe undated internal note quoted in the contested decision stating that '... 1. MrSeillière for the first time produced the following figures (exports to FGR,excluding Saarland): ... 3. Cedest confirmed that it would sell only to RMC... andto PZW [Wössingen] in Germany. It also agreed in future to adjust its supplies toGermany (excluding Saarland) to delivery trends in that country whether the trendis upward or downward ..., it considered that Cedest was prepared to limit its salesin Germany and adapt them to market trends (contested decision, recital 22,paragraph 7) and had 'stated to Dyckerhoff and Heidelberger that it wished to sellin Germany only to RMC and PZW and agreed in future to adjust its supplies toGermany (excluding Saarland) to delivery trends in that country, whether the trend[was] upward or downward (see memorandum of 17 November 1982, paragraph7 of recital 22) (contested decision, recital 50, paragraph 3, second subparagraph). 2212. In that context, the Commission cannot establish the existence of an agreement toshare the Saarland market in 1982 and 1983 by relying solely on what, accordingto the Lafarge internal note cited in the contested decision, Mr Knut Bücker-Flürenbrock attributed to Cedest's representatives. 2213. Second, the Commission does not demonstrate that an overall agreement to sharethe Saarland market was pursued solely on the basis of the summary record drawnup by Ciments Français on 17 May 1983 (contested decision, recital 22, paragraph9; documents 33.126/4251 to 4253). The very most that can be inferred from thatrecord is that there was an exchange of views between Dyckerhoff and CimentsFrançais concerning the Saarland market. 2214. The words used indicate that the Saarland situation was seen, by Ciments Françaisat least, as being different from the 'zone in which Ciments Français operatedthrough the Luxembourg company Intermoselle, which it owned jointly withCiments Luxembourgeois and Dyckerhoff. 2215. Thus in the second subparagraph of paragraph 1 the author of the record says ofa representative of Dyckerhoff, Mr Grüner, who was to retire: 'He will continueto play an active role, however, especially concerning relations with neighbouringcountries. He will therefore probably continue to be involved in one way or anotherin Intermoselle, Ciments Luxembourgeois and perhaps the situation in Saarland. 2216. In the second and third subparagraphs of paragraph 5 the author says: 'MrDoumenc, [who] provided a broad account of the projects which we have agreedwith CL [Ciments Luxembourgeois], revealed that we regard our position in IM[Intermoselle] as the starting point for our entire policy in the region, that, on thatbasis, where we are on an equal footing with DYZ [Dyckerhoff], we should reflecttogether on future changes in which we should be associated. Similarly, it would bedesirable to be on the same side in the sector in Saarland, where there will bechanges. The author of the record thus implicitly states that at that period the twoproducers concerned were not, or were no longer, on the same side in the sectorin the Saarland market and that changes in the market situation were expected. 2217. Last, the author notes in paragraph 6 that 'DYZ [Dyckerhoff] confirmed that talkswere nearing completion with CL [Ciments Luxembourgeois] to provide DYZ[Dyckerhoff] with a grinding quota of 100 000 t on CL's [Ciment Luxembourgeois's]grinding plant and for cement deliveries in the Trier region and in the Eifel. Thesetonnes will not a priori go to Saarland unless there is a definite economicadvantage compared with the Goellheim plant which currently delivers to Saarland.The tonnes will never go to France. 2218. The Commission's interpretation of the summary record cannot be accepted. Evensupposing that the words used in paragraph 6 shows that Dyckerhoff intended toinform Ciments Français that it would not alter their respective positions on theSaarland market, they do not establish the existence of an overall agreement toshare the Saarland market between French and German producers. 2219. To conclude, it cannot be denied that the first two documents relied on by theCommission (Vicat's note of 22 July 1982 and the Lafarge internal note of 23 June 1982, see paragraphs 2186 to 2200 above) show that an agreement to share theSaarland market existed and operated at least until 1970, or even until 1977.However, the scope of that agreement was wider than that determined by theCommission in the contested decision, and the four documents to which it refersin that decision do not support the view that the agreement was an established andundisputed fact in 1982 and 1983. 2220. Only the existence of the agreement to share the Saarland market, as apprehendedin the contested decision, is capable of affecting the legality of Article 3(3)(a) ofthat decision, since the Commission regards it as one of the elements of theinfringement which commenced on 23 June 1982 (see paragraphs 2172 to 2180above). 2221. As regards the agreement to set up SST, to which the Commission refers in recital22, paragraph 2, of the contested decision, none of the applicants concerneddisputes either the existence of that company or the dates on which, according tothe contested decision, it was set up and sold (recital 22, paragraph 2). Dyckerhoffclaims that SST has no relevance to any question of the sharing of supplies and thatits activities were confined to transporting cement in silos. Heidelberger observesthat it had no influence over SST, since it had only a small shareholding in thatcompany, and that it never used SST to transport its cement. 2222. The Commission does not state in the contested decision what role it considers thatthe agreement to set up SST played in the implementation of the allegedagreement to share the Saarland market. Although it states in its account of thefacts (recital 22, paragraph 2) that '[t]he agreement to share the Saarland marketwas supported by another agreement on the setting-up of a joint cement transportcompany Saarlaendische Silo-Transport GmbH, the only company which theassociates (Arbed, Ciments Français, Cedest, Wülfrather, Heidelberger andDyckerhoff) would use to transport their cement to Saarland, it makes no furtherreference to SST in the legal assessment in establishing the existence of anagreement to share the Saarland market. In its answer to a written question put bythe Court in Cases T-35/95, T-38/95, T-39/95 and T-42/95 the Commission statesthat it mentioned the agreement to set up SST in the context of its account of thefacts, but drew no legal inference from it. It further states that Article 3(3)(a) ofthe contested decision concerning the regulation of cement supplies betweenGermany and France does not refer to that agreement and that the agreementdoes not appear to have been applied during the period of the infringement foundin Article 3(3)(a). 2223. Consequently, there are no grounds for taking that agreement into considerationin order to rule on whether the agreement to share the Saarland market was aconstituent element of the infringement referred to in Article 3(3)(a) of thecontested decision. 2224. It follows from all the foregoing that the Commission has failed to demonstrate theexistence in 1982 and 1983 of the agreement to share the Saarland market to whichit refers in the contested decision. Accordingly, there is no need to decide on theparticipation of the various parties in such an agreement or on the claims ofCiments Français and Heidelberger that the matters are time barred. 2225. Article 3(3)(a) must therefore be annulled in part in so far as it finds thatDyckerhoff, SFIC, Cedest, Ciments Français, Heidelberger, Lafarge and BDZparticipated in an agreement to share the Saarland market from 23 June 1982. Concerted practices between various French and German producers and associationsbetween 1982 and 1984 2226. Dyckerhoff, SFIC, Cedest, Ciments Français, Heidelberger and Lafarge deny havingin any way participated in the concerted practices which the Commission found inthe contested decision. BDZ on the other hand does not devote any specificargument to the concerted practices. 2227. Before the merits of the various arguments put forward by the applicants areassessed, it is appropriate to recall the description of the concerted practices givenby the Commission in the contested decision. 2228. In recital 50, paragraph 3, first subparagraph, the Commission states: 'Following the exports by Cedest to the German Länder other than Saarland andthe German producers' reactions in France, bilateral consultations took place witha view to limiting cross-frontier flows of cement. 2229. The Commission then refers (same paragraph, second and third subparagraphs) totalks between SFIC and BDZ, to pressure exerted on Cedest by SFIC and theFrench producers concerned, to concerted action between Cedest, Dyckerhoff andHeidelberger, to concerted action between Lafarge and Dyckerhoff and toconcerted action between Dyckerhoff and Ciments Français. 2230. The Commission observes (fourth subparagraph) that '[t]he problem of relationsbetween French and German producers was discussed, as a hot spot, at themeeting of Head Delegates on 19 March 1984 (see paragraph 9 of recital 19). 2231. The Commission states (fifth subparagraph) that these various instances ofcollusion are 'concerted practices [which] led to the conclusion of an agreementbetween the French and German undertakings and associations of undertakingsconcerned and observes (seventh subparagraph) that those concerted practices,which took place from 1982 to 1984, constitute infringements of Article 85(1) of theTreaty. 2232. In Article 3(3)(a) of the operative part of the contested decision the Commissionfinds the existence of an infringement consisting, inter alia, of those concertedpractices. 2233. In support of the contested decision the Commission relied on the content of anumber of documents to establish the five concerted practices referred to in recital50, paragraph 3, second and third subparagraphs, of the contested decision, whichtook place in 1982 and 1984 and had 'as their object the sharing of markets andthe restriction of cross-frontier flows of cement between France and Germany(contested decision, recital 50, paragraph 4, first subparagraph) and moreparticularly to 'extend the agreement on the Saarland to other German Länder andto fit the agreement into the broader framework of the regulation of trade flowsbetween France and Germany (contested decision, recital 50, paragraph 4, secondsubparagraph). 2234. Dyckerhoff does not deny that it took part in discussions with German and Frenchproducers in 1982 and 1983 or that it was concerned about Cedest's expandingactivities in Dyckerhoff's natural market. Similarly, Heidelberger admits that theremay have been contacts between French and German producers in 1982 with aview to putting a stop as soon as possible to the cross-frontier supplies which hadincreased at that time. However, it states that no agreement was concluded. 2235. The Court will examine each of the concerted practices found by the Commissionin the order in which they are referred to in recital 50, paragraphs 2 and 3, of thecontested decision. A  Talks between SFIC and BDZ 2236. In recital 50, paragraph 3, second subparagraph, of the contested decision theCommission states that talks were held between SFIC and BDZ and refers to thehandwritten internal memorandum of Lafarge of 23 June 1982 (documents33.126/6592 to 6596) mentioned in recital 22, paragraph 4, of the contesteddecision, but does not specify the relevant passages. 2237. SFIC disputes the Commission's interpretation of that memorandum in thecontested decision, and more particularly its interpretation of the following passage,which is on the first page of that document and reports what was said by MrGrüner of Dyckerhoff: '1) Background: '... then Gemalen Schäben Germany pq domestic reaction in France. Verband [BDZ] found it very hard to see all the more so because there was Not dominate the partner (subsidiary)? Talks with Fr. syn. [SFIC] and let's suppose that tonnage increased to the point at which the market was disrupted CLK 25/HOZ 25 and PZ 35 mixture by RMC. Publicity Waited a very long time without doing anything ... 2238. SFIC considers that there is no reason to think that the talks in question were talkswith BDZ and points out that the note in any event relates to events before 1982. 2239. Although this passage from the note actually refers to BDZ ('Verband) and totalks with SFIC, it appears, as SFIC says, in the context of an historical account byMr Grüner of the events which marked relations between the French and Germanindustries following Cedest's conduct in the 1970s. Even supposing that suchreferences provide evidence of the existence of talks between SFIC and BDZ, theyclearly relate to a period before the note in question was drawn up. 2240. The note therefore fails to establish the existence of talks between SFIC and BDZalleged to have taken place between 1982 and 1984. 2241. Even though the Commission makes express reference only to that note when itaccuses SFIC and BDZ of having colluded (contested decision, recital 50,paragraph 3, second subparagraph), it also adduces two other pieces of evidenceto demonstrate that such talks took place between SFIC and BDZ, at least in 1984,when it explains the result, in its view, of the various concerted practices, namelythe conclusion of an agreement in 1984. 2242. In recital 50, paragraph 3, fifth subparagraph, of the contested decision theCommission states that the letter of 22 September 1986 from the Chairman ofCiments Français and of SFIC, Mr B. Laplace, to the Chairman of Heidelbergerand of BDZ, Mr P. Schuhmacher (contested decision, recital 22, paragraph 10)'refers [inter alia] to the progress achieved as compared with 1984 at the periodicmeetings between Mr Laplace, Mr Lose and Mr Brenke. 2243. At least one passage in that letter (first and second subparagraphs) confirms thatmeetings were held between the two associations in 1984 to deal with the problemsencountered in relations between the French industry and the German industry:'As you know I have periodic meetings with Jürgen Lose [from Dyckerhoff] andTed Brenke [from Heidelberger]. I believe, if we look back at the situation we werefaced with in 1984, that what we discussed during the course of these meetings hasworked reasonably well. It is significant, moreover, that although the letter iswritten on Ciments Français notepaper, Mr Laplace makes particular reference tohis capacity as Chairman of SFIC (fifth paragraph) and refers to the 'Frenchparties. Similarly, he does not refer specifically at any point in his letter to the position of Heidelberger, of which Mr Schuhmacher was Chairman, but speaks ofthe 'German side and of the 'French and German interests. Last, the mattersdealt with in the letter are within the competence of a national trade association,since they refer to relations between the industries of two different countries. 2244. The Commission also refers to the discussions at the Cembureau Head Delegatesmeeting on 19 March 1984 in footnote 100 and in recital 50, paragraph 3,subparagraph 4, of the contested decision. 2245. As the Commission points out in footnote 100, it follows from the memorandumto the Chairman dated 15 March 1984, concerning the meeting of CembureauHead Delegates on 19 March 1984 (documents 33.126/11728 and 11729), referredto in recital 19, paragraph 9, of the contested decision, that exports from Franceto Germany were seen by the meeting as still being a 'hot spot. Both SFIC andBDZ participated in that meeting, the former represented by Mr Collomb and thelatter by Mr A. von Engelhardt (recital 19, paragraph 8). 2246. The memorandum of 15 March 1984 states that exports from France to Germanywere to be discussed and that the discussions did not concern traditional or evenstructural trade between those two Member States. 2247. Thus item 2, entitled 'Situation on the European markets, states, in particular: ' Comments on the table showing imports and exports of member countries.  It will be noted that the discussions will not concern traditional oreven structural inter-state trade, e.g. exports from Germany andBelgium to the Netherlands.  The hot spots are still:  Exports from Germany to the United Kingdom and Ireland;  Exports from France to Germany;  Exports from Spain to Ireland and the United Kingdom.  A new hot spot is exports from Italy to Switzerland.  Participants will then be asked to comment round the table. 2248. The fact that there is no reference to discussions concerning Franco-Germanrelations at the meeting of 19 March 1984 in the notes on the meeting dated 2April 1994 (documents 33.126/11733 to 11737), cited in recital 19, paragraph 10,of the contested decision, does not deprive the information in the memorandum of 15 March 1984 concerning discussions between SFIC and BDZ in 1984 of allprobative force. 2249. The conclusion reached in the notes on the meeting that '[p]ressure from inter-member trade had slackened considerably through improved bilateral contactsconfirms that, as indicated in the two abovementioned paragraphs from MrLaplace's letter of 22 September 1986 to Mr Schuhmacher (see paragraph 2243above), bilateral contacts took place in any event between the French industry andthe German industry in 1984. The reference in the memorandum of 15 March 1984to exports from France to Germany and the fact that SFIC and BDZ were presentat the meeting on 19 March 1984 therefore attest to the fact that the twoassociations did hold talks at that time. 2250. Finally, the content of the documents presented in the contested decision not onlygives reason to conclude that talks were held between the two national associations,SFIC and BDZ, at least in 1984, but also shows that the subject-matter of thosetalks concerned the special situation of relations between the industries of both thecountries concerned, and in particular the attempts to limit or regulate exportsfrom one country to the other. The anti-competitive nature of the subject-matterof the talks in which the two associations were involved is therefore established.Moreover, subject to proof to the contrary, which it was for the associations toadduce (Commission v Anic, cited in paragraph 270 above, paragraph 121, and Hülsv Commission, cited in paragraph 155 above, paragraph 162), it must be held thatthe talks between SFIC and BDZ influenced their conduct and that of theirmembers concerned by trade between France and Germany. 2251. It follows from the foregoing (paragraphs 2236 to 2250) that the Commission wasentitled to find that there was a concerted practice between SFIC and BDZcontrary to Article 85(1) of the Treaty. However, the contested decision does notcontain any evidence to show that the concerted practice existed before 1984.Itfollows that Article 3(3)(a) must be annulled in so far as it finds that there wereunlawful talks between SFIC and BDZ before 1984. B  Pressure exerted on Cedest by SFIC and the other French producers concerned 2252. The Commission infers from the internal memorandum of Lafarge of 23 June 1982(contested decision, recitals 22, paragraph 4, and 50, paragraph 3, secondsubparagraph; document 33.126/6592 to 6596) that following concerted action,whose objective was to limit cross-frontier flows of cement, the SFIC and the otherFrench producers concerned exerted pressure on Cedest to restrain its exports toGermany. 2253. In recital 50, paragraph 3, of the contested decision the Commission does notindicate precisely the part of that memorandum from which it drew that inference. 2254. In recital 22, paragraph 16, however, it cites the following passage (p. 3 of thememo): 'The industry (Syndicat) and Lafarge in particular applied their full weight when:unregulated competition (Kerpen). Ground slag dangerous for mixtures. 2255. When placed in the context of the discussions described in the memo, this passageshows that pressure was actually exerted on Cedest. The pressure was anti-competitive in nature: the passages which precede the one set out above show thatthe purpose of the pressure was to induce Cedest to put a stop to its aggressivecommercial policy in Germany and to respect the 'home market principle (theexpression found on p. 2 of the memo). 2256. As regards those responsible for the pressure, the Commission refers to SFIC and'the other French producers concerned (contested decision, recital 50, paragraph3, second subparagraph), namely Lafarge and Ciments Français. 2257. SFIC maintains that in the SO the Commission, relying on an extract from theLafarge internal memorandum of 23 June 1982, criticised it only for having heldtalks with BDZ. That document does not mention the existence of pressure exertedon Cedest. 2258. It must be pointed out that the information provided in the SO does not identifySFIC as one of those responsible for bringing pressure to bear on Cedest. Afterciting the extract from the Lafarge internal memorandum of 23 June 1982concerning the talks between SFIC and BDZ, the Commission states that '[t]hememorandum goes on to refer to pressure brought to bear by Lafarge and CimentsFrançais on Cedest (SO, paragraph 12, p. 25). Nor is SFIC criticised elsewhere inthe SO for having participated in the pressure on Cedest referred to in the Lafargememorandum of 23 June 1982. Consequently, the description of this objection inthe SO was not worded in such a way that SFIC could be aware that it was accusedof the conduct in question. The exercise of its rights of defence was thereforeaffected. Consequently, Article 3(3)(a) of the contested decision must be annulledin so far as it finds that SFIC participated in a concerted practice designed to exertpressure on Cedest. 2259. As regards Lafarge, it is sufficient to observe that the passage from its internalmemorandum of 23 June 1982, cited in paragraph 2254 above, to the effect that'the industry (Syndicat) and Lafarge in particular applied their full weight ...,reproduces what was said by Mr Collomb, who specifically represented Lafarge'sinterests. The passage clearly shows that Lafarge brought pressure to bear onCedest, whatever the effect it may have had on Cedest's conduct. It follows that Lafarge's participation in the conduct referred to in recital 50, paragraph 3, of thecontested decision was established in the decision. 2260. Nor does Lafarge devote any specific argument to the abovementioned passage. Itmerely states that its internal memorandum reveals only that its good offices weresought in the dispute provoked by Cedest and that, as the other documentsreferred to in recital 22 of the contested decision bear out, there was continuingdisagreement among the various parties concerned, which precluded any concertedaction or cooperation susceptible of being classified as a concerted practice withinthe meaning of case-law (Case 48/69 ICI v Commission, cited in paragraph 636above, paragraph 64, and Case T-2/89 Petrofina v Commission [1991] ECR II-1087,paragraphs 214 and 215). In that regard, Lafarge also relies on the content of itsinternal memorandum concerning a meeting between Cedest, Dyckerhoff andHeidelberger on 17 November 1982 (contested decision, recital 22, paragraph 7)and a summary record drawn up by Ciments Français on 17 May 1983 (contesteddecision, recital 22, paragraph 9), which show that Cedest did not alter its conductor withdraw from the German market. 2261. It should be pointed out, however, that even supposing that Lafarge's interpretationof its internal memorandum of 23 June 1982 is correct, it cannot be described ascomplete. The fact that it was approached to settle the dispute provoked by Cedestdoes not weaken the evidence that there was in fact concerted action with CimentsFrançais in particular. Nor does it preclude the possibility that it exerted somepressure on that occasion. The fact that Lafarge holds shares in Cedest is even ofsuch a kind as to confirm the reality of the pressure described in its own internalmemorandum of 23 June 1982. The illegal nature of the concerted action aimed atexerting pressure on Cedest has been established (see paragraph 2255 above). 2262. Furthermore, the Commission did not allege that Cedest altered its commercialconduct following the pressure brought to bear by SFIC and the other Frenchproducers concerned. In that regard, it merely demonstrated that the exercise ofthat pressure, following concerted action, was designed to compel Cedest to alterits conduct (see paragraph 2255 above), which is sufficient to find that it wasunlawful for the purposes of Article 85(1) of the Treaty (see the case-law cited inparagraph 1674 above). The argument which Lafarge bases on Cedest's conductafter pressure had been brought to bear on it is therefore irrelevant. 2263. In any event, it is necessary to reject Lafarge's argument, first, that it had nointerest in exerting any pressure whatsoever on Cedest, having regard to the specialfeatures of its situation and that of its German subsidiary Wössingen on the market,and, second, that the 'oil stain ('tache d'huile) economic theory, which theCommission used to prove the existence of a Franco-German agreement, does notexplain Lafarge's competitive conduct in Germany, where Wössingen's salesincreased between 1976 and 1991; moreover, that theory cannot be applied toregional markets scattered throughout the territory. 2264. It should be observed that, contrary to what Lafarge claims, the existence of theconcerted action designed to bring pressure to bear on Cedest is established not onthe basis of an economic analysis of the market, in the light of an 'oil stain theory,but on that of specific documentary evidence coming from Cedest itself. Thequestion whether Lafarge had or did not have any 'interest in bringing pressureto bear on Cedest is therefore irrelevant, since the existence of such pressure hasbeen properly established. Nor is it contradictory for an undertaking to participatein a bilateral agreement designed to ensure respect for home markets and at thesame time to seek to strengthen its local subsidiary in a territory concerned by thatagreement. That observation also applies to all the concerted actions in whichLafarge is alleged to have participated (see paragraphs 2295 to 2315 and 2331 to2442 below). 2265. Moreover, a number of items contradict Lafarge's argument. It may be seen, first,that it was preoccupied with the state of Franco-German relations, since a numberof documents show that it participated in discussions on that subject (internalmemorandum of 23 June 1982 (contested decision, recital 22, paragraph 4;documents 33.126/6592 to 6596), in which its representative, Mr Collomb, referredin particular to the existence of the 'home market principle; undated internal noteconcerning a meeting between Cedest, Dyckerhoff and Heidelberger on 17November 1982 (contested decision, recital 22, paragraph 7; documents 33.126/6582and 6583); letter of 28 July 1982 from Mr C. Hummel, of Dyckerhoff, to MrCollomb, of Lafarge (contested decision, recital 22, paragraph 5; documents33.126/6597 to 6599) and internal note by Lafarge of 2 September 1982, drawn upby Mr Marichal for Mr Collomb (contested decision, recital 22, paragraph 6;document 33.126/6584)). Then, as the Commission points out in the contesteddecision, Lafarge had a special interest in taking part in the discussions on Franco-German relations in view of the position of its German subsidiary Wössingen(recital 22, paragraph 13, third and fourth subparagraphs). Last, as the Commissionalso observes in the contested decision (recital 22, paragraph 13, secondsubparagraph), even if Lafarge's position were not entirely comparable to that ofother French producers, owing to the location of its plants, it was not protectedfrom the consequences of competition between French and German producers inits own trading area, since there was a risk that the conflict provoked by Cedest'sattitude in the German market would spread in the event of reprisals on the partof the German producers. 2266. Furthermore, Lafarge's attempt to rely on its own internal memoranda of 6 August1982 (documents 33.126/7522 to 7524) and 7 January 1983 (documents 33.126/7514to 7516) is inadmissible under Article 48(2) of the Rules of Procedure, since itrelied on them for the first time at the hearing. 2267. In any event, the existence and the content of those two internal memoranda inreality confirms the interest which Lafarge showed in the problems raised by Cedest's conduct in Germany, more particularly because of Lafarge's presencewithin Wössingen. 2268. The memorandum of 6 August 1982, drawn up by Mr Marichal and entitled 'LC[Lafarge] strategy in Germany Cedest affair, consists of three separate parts: A.Forces present, B. Foreseeable movements and C. Proposed action. 2269. In point 3 of part A the author notes that Wössingen 'like others is affected by C.'s[Cedest's] inroads. 2270. The five points in part C also show that Lafarge felt concerned by Cedest's conductin Germany: '1. Refuse so-called concerted action with the two large German producers withoutCedest, which can only cause LC [Lafarge] setbacks. 2. Maintain position. we shall only come if Cedest invites us. In France, wherethere are minority shareholdings, that is the way it is done. 3. Do not accept even the concept of compensation given to PZW [Wössingen]on an undertaking by Cedest not to attack any more which would probably not becomplied with (a fool's game) and consequently avoid the slippery slope of ... (thuskilling two birds with one stone). 4. Exert a form of blackmail on Cedest: more than CK if no brakes RMC/Ludwigwhy refrain from using the only means of pressure that seems to be available? in practice  JM [Mr J. Marichal] tf [no doubt meaning telephone]write to B.R. [Mr B. Renard of Cedest] to insist on havingthe result of the enquiry which he promised L.M. and saythat we are relying heavily on his intervention with RMC  no ... CK to Cedest if no result Otherwise  we are pleasing an enemy (or rather acompetitor) of W [Wössingen]  in refusing those whom W [Wössingen] we must tryto manage without it costing us anything 5. Tell Cedest (orally) that we shall not be the inquisitors in the proceedingsbrought against them in Germany. 2271. The internal memorandum of 7 January 1983 shows that the Lafarge managementwere anxious to ascertain the content of the discussions held in Lafarge's absence between Cedest and the German producers Dyckerhoff and Heidelberger at ameeting on 17 November 1982. 2272. Turning last to Ciments Français, it must be stated that the extract from theinternal Lafarge memorandum of 23 June 1982 cited in paragraph 2254 above doesnot expressly mention Ciments Français, although in the SO (paragraph 12, p. 25)the Commission expressly accuses it of bringing pressure to bear on Cedest. 2273. Ciments Français claims that the memorandum in issue provides no grounds forconcluding that it participated in discussions about Cedest's sales in Germany, stillless in bringing pressure to bear on Cedest. 2274. None the less, it follows from the content of that memo, examined in the light ofthe content of the internal Ciments Français memorandum of 25 January 1983(documents 33.126/4254 to 4256), cited in recital 22, paragraph 8, of the contesteddecision, and the summary record drawn up by Ciments Français on 17 May 1983(contested decision, recital 22, paragraph 9; documents 33.126/4251 to 4253), thatthe Commission was correct to take the view that, in the context of concertedaction whose objective was to limit cross-border trade in cement, Ciments Françaisbrought pressure to bear on Cedest. 2275. In that regard, it should be observed, first, that although Ciments Français is notactually mentioned by name in the extract from the internal Lafarge memorandumof 23 June 1982 concerning pressure on Cedest (see paragraph 2254 above) andalthough that memorandum describes, in the Commission's own words, a discussionbetween the representatives of Lafarge and Dyckerhoff (contested decision, recital22, paragraph 4), the author refers to the 'ind. (Syn), that is to the Frenchindustry, of which Ciments Français indisputably then formed part. Furthermore,Ciments Français is mentioned later in the memo, where reference is made to itsinfluence on Cedest, in the following words: 'CF [Ciments Français] we know thatit has less influence on Cedest than L [Lafarge]. Also delivery prices to RMC arebelow French prices. BC put the ball in Ciments Français's court. As theCommission observed in its answer to a written question put by the Court in CaseT-39/95, the reference to Ciments Français can only be explained by its involvementin the earlier discussions to which the memorandum refers. 2276. Next, it follows from the Ciments Français memorandum of 25 January 1983 andits summary record of 17 May 1983 that Ciments Français was still involved in 1983in the discussions on Cedest's conduct in Germany. Both documents thus indicatethat it participated in discussions with Dyckerhoff on the restriction of Cedest'ssales in Germany and the retaliatory measures which Dyckerhoff intended to takeagainst Cedest. Even though those documents are relied upon in the contesteddecision to support the existence of a different concerted practice, between CimentsFrançais and Dyckerhoff (see paragraphs 2316 to 2330 below), they confirm CimentFrançais's involvement in the concerted action pursuant to which pressure was brought to bear on Cedest by the French industry, as indicated by the Lafargememorandum of 23 June 1982 (see preceding paragraph). Subject to proof to thecontrary, which it was for Ciments Français to adduce (Commission v Anic, citedin paragraph 270 above, paragraph 121, and Hüls v Commission, cited in paragraph155 above, paragraph 162), it must be held that the concerted action in questioninfluenced its conduct in trade between France and Germany. 2277. Ciments Français cannot plead lack of interest in Cedest's sales in the Palatinateon the grounds that it was not present in that area, controlled no Germanproducer, did not own shares in Cedest and was not involved in the proceedingsbrought by the Bundeskartellamt in relation to southern Germany. CimentsFrançais further points out that it did not have access to the file relating to thatnational cartel during the administrative procedure. 2278. As the Commission correctly observed in its submissions in Case T-39/95, thatargument is irrelevant, since what is at issue is not an agreement to share sales inthe Palatinate market but pressure brought to bear to prevent the Germanproducers, who were irritated by Cedest's conduct, from adopting retaliatorymeasures against the French regions in which Ciments Français was present, forexample eastern France, and the only German region where Ciments Françaisconfirms that it was present, Saarland. Moreover, neither in the SO nor in thecontested decision did the Commission find that Ciments Français participated inthe infringement found in Article 3(3)(a) of the contested decision on the groundthat it participated in a national cartel relating to southern Germany which mayhave been found to exist by the Bundeskartellamt or any other authority. 2279. Nor can Ciments Français find support in the internal Lafarge note concerning ameeting between Cedest, Dyckerhoff and Heidelberger on 17 November 1982(contested decision, recital 22, paragraph 7; documents 33.126/6582 and 6583) forits argument that it did not participate in bringing pressure to bear on Cedest. Evensupposing, as Ciments Français claims, that the note records discussions relatingexclusively to Cedest's conduct in the Palatinate, the content of the note has noeffect whatsoever on the evidence that Ciments Français participated in bringingpressure to bear on Cedest, since that evidence is in another document, the Lafargememorandum of 23 June 1982 (contested decision, recital 22, paragraph 4;documents 33.126/6592 to 6596). Furthermore, the note relating to the meetingheld on 17 November 1982 does not anywhere mention Ciments Français. 2280. Accordingly, it follows that the Commission has shown that Lafarge and CimentsFrançais brought pressure to bear on Cedest to reduce its sales in the Germanmarket. On the other hand, because SFIC's rights of defence were infringed duringthe administrative procedure (see paragraphs 2257 and 2258 above), itsparticipation in the exercise of such pressure has not been lawfully established. 2281. Moreover, it is established that the pressure in question was anti-competitive (seeparagraph 2255 above). C  Concerted action between Cedest, Dyckerhoff and Heidelberger 2282. The Commission infers the existence of this concerted action from an internalhandwritten note by Lafarge recording a meeting between Cedest, Dyckerhoff andHeidelberger on 17 November 1982, during which the parties concerned discussedCedest's sales in Germany (contested decision, recitals 22, paragraph 7, and 50,paragraph 3, second subparagraph; documents 33.126/6582 and 6583). 2283. None of the three parties concerned has denied that the meeting took place on 17November 1982 or that it was present at the meeting. Although they do not disputethe subject-matter of the discussions which took place at the meeting, all threeclaim that, in spite of that particular subject-matter, it did not constitute conductcontrary to Article 85(1) of the Treaty, either because the discussions consistedpurely in the communication of an undertaking given by Cedest to Dyckerhoff andHeidelberger, or because they were not followed up, or because it is evident fromthe handwritten note that Cedest did not give a favourable response to the requeststhat it give an undertaking, or again because, since Cedest did not agree to theproducers' request to cease its aggressive sales policy in Germany, or evencontemplate adopting a course of conduct consistent with that request, the attemptwas at the very most unilateral and did not in any event constitute a concertedpractice contrary to Article 85(1) of the Treaty, which requires, at least, concertedaction between two people. 2284. As indicated in paragraph 2205 above, in its observations of 7 January 1998concerning access to the Commission file which it had been granted following themeasure of 18 and 19 June 1997, Cedest relied, in order to establish that it hadcontinued to act independently in Germany, in particular, on the content of aninternal note of Lafarge of 7 January 1983 (documents 33.126/7514 to 7516), towhich it had not been given access during the administrative procedure. 2285. That internal memorandum is at variance with the content of the Lafarge noteconcerning the meeting on 17 November 1982 referred to in the contested decision(recital 22, paragraph 7) as regards what was said by Cedest's representatives atthat meeting (see paragraphs 2203 to 2210 above). 2286. It is clear, therefore, that that note could have proved useful to Cedest in theexercise of its rights of defence during the administrative procedure (see paragraph247 above). The administrative procedure might have had a different outcome hadCedest had access to that document before the contested decision was adopted,having regard to its impact on the evidential value of the note describing themeeting on 17 November 1982. 2287. The note of 7 January 1983 contradicts the content of the only documentevidencing Cedest's participation in the concerted practice with Dyckerhoff andHeidelberger referred to in Article 3(3)(a) of the contested decision. 2288. Since the concerted practice with Dyckerhoff and Heidelberger is the only onereferred to in Article 3(3)(a) of the contested decision in which Cedest is allegedto have participated, that provision must be annulled as against Cedest, in so faras it establishes that Cedest participated in concerted practices involving theregulation of cement supplies from France to Germany and from Germany toFrance. 2289. In any event, it should be reiterated that the content of the note of 7 January 1983shows that the Commission committed an error of assessment when it consideredthat 'Cedest was prepared to limit its sales in Germany and adapt them to markettrends (contested decision, recital 22, paragraph 7) and that 'Cedest stated toDyckerhoff and Heidelberger that it wished to sell in Germany only to RMC andPZW and that it agreed in future to adjust its supplies to Germany (excludingSaarland) to delivery trends in that country, whether the trend is upward ordownward (see memorandum of 17 November 1982, paragraph 7 of recital 22)(contested decision, recital 50, paragraph 3, second subparagraph) (see paragraph2211 above). 2290. The Commission cannot claim, as it did at the hearing in Case T-38/95, that it alsorelies on certain passages in the internal Lafarge memorandum of 23 June 1982(contested decision, recital 22, paragraph 4; documents 33.126/6592 to 6596). Thatmemorandum makes no mention of specific meetings or undertakings given toGerman producers by Cedest at such meetings. The most that can be inferred fromthe passage worded '... H. Since 1980 we have constantly told our Frenchcolleagues not to accept Cedest (81). ... is that the person making that remark,from Dyckerhoff, was referring to contacts between Dyckerhoff and Cedest in 1981.Apart from the fact that the reference was to events which, even on the assumptionthat they had actually occurred, did so before the period of the infringement foundin Article 3(3)(a) of the contested decision, the Commission made no mention inthat decision either of the existence of those contacts between Dyckerhoff andCedest or of their content. 2291. However, the infringement of Cedest's rights of defence resulting from theinfringement of its right to have access to the Commission's file during theadministrative procedure, the absence of any evidence that it participated in aconcerted practice with Dyckerhoff and Heidelberger on 17 November 1982 andthe consequences flowing therefrom do not mean that the findings which theCommission based on the content of the internal Lafarge note referred to in recital22, paragraph 7, of the contested decision in relation to Dyckerhoff andHeidelberger are unlawful. 2292. Apart from the fact that in their observations on the access to the file which wasgranted following the measures of organisation of procedure adopted by the Court(see paragraphs 2446, 2447, 2461 and 2462 below) neither of those parties assertedthat the internal Lafarge note of 7 January 1983 was relevant, they did not denyhaving attempted in concert at the meeting on 17 November 1982 to secureundertakings from Cedest. In their case that meeting therefore had an anti-competitive object, since the purpose of that contact between two competitors onthe market, Dyckerhoff and Heidelberger, was to influence by common agreementthe conduct on the market of an actual or potential competitor (see, in that regard,Suiker Unie and Others v Commission, cited in paragraph 651 above, paragraph 174;Rhône-Poulenc v Commission, cited in paragraph 1053 above, paragraph 121; BASFv Commission, cited in paragraph 1852 above, paragraph 240, and HerculesChemicals v Commission, cited in paragraph 140 above, paragraph 258). Subject toproof to the contrary, which it was for Dyckerhoff and Heidelberger to adduce(Commission v Anic, cited in paragraph 270 above, paragraph 121, and Hüls vCommission, cited in paragraph 155 above, paragraph 162), it must be held that theconcerted action between those two undertakings relating to Cedest's conduct inGermany influenced their conduct in trade between France and Germany. 2293. Heidelberger cannot deny having participated in that concerted practice by relyingon the internal memoranda of Lafarge of 23 June and 2 September 1982 (contesteddecision, recital 22, paragraphs 4 and 6; documents 33.126/6592 to 6596 and 6584),which describe discussions between Lafarge and Dyckerhoff. Apart from the factthat it relies on those two memoranda in order to show that it did not participatein an agreement or concerted action with Lafarge and Dyckerhoff, which theCommission did not allege in the contested decision, the content of the two internalmemoranda of Lafarge provides no details of the meeting on 17 November 1982during which Heidelberger and Dyckerhoff sought to convince Cedest to alter itsconduct in Germany. 2294. It follows that the evidence presented by the Commission in the contested decision(recital 22, paragraph 7) justified its conclusion that Dyckerhoff and Heidelbergerhad infringed Article 85(1) of the Treaty at the meeting with Cedest on 17November 1982 (contested decision, recital 50, paragraph 3, second subparagraph).The content of the internal memorandum of Lafarge of 7 January 1983, whichcontradicts the terms of the memorandum referred to in the contested decisionsolely as regards Cedest's conduct, does not alter that fact. D  Concerted action between Lafarge and Dyckerhoff 2295. The Commission finds the existence of concerted action between Lafarge andDyckerhoff on the basis of three documents: a handwritten internal memorandumdated 23 June 1983 by Lafarge (documents 33.126/6592 to 6596) cited in recital 22,paragraph 4, of the contested decision, a letter of 28 July 1982 from Mr Hummel, of Dyckerhoff, to Mr Collomb, of Lafarge (documents 33.126/6597 to 6599), citedin recital 22, paragraph 5, of the contested decision, and an internal handwrittennote by Lafarge dated 2 September 1982 (document 33.126/6584), cited in recital22, paragraph 6, of the contested decision. Those three documents lead theCommission to take the view that 'Lafarge and Dyckerhoff endeavoured to preventany aggressiveness and to establish a climate of harmony between the French andGerman producers involved in exports (contested decision, recital 50, paragraph3). 2296. As indicated in paragraph 2234 above, Dyckerhoff acknowledges that discussionstook place between German and French producers in 1982 and 1983 but makes nospecific comment in relation to the three documents presented by the Commission.It merely points out that even if the object of the discussions in question was toencourage Cedest to abandon its aggressive sales policy in Germany, they cannotconstitute concerted practices since Cedest did not agree to do as they wished. 2297. That submission must be rejected. Although the discussions undertaken byDyckerhoff and Lafarge were actually aimed at inducing Cedest, by one means oranother, to cease its particular conduct in Germany, they had an anti-competitiveobject. Subject to proof to the contrary, which it was for Dyckerhoff and Lafargeto adduce (judgments in Commission v Anic, cited in paragraph 270 above,paragraph 121, and Hüls v Commission, cited in paragraph 155 above, paragraph162), it must be held that the concerted action between those two undertakingsinfluenced their conduct in trade between France and Germany. Such concertedaction constitutes an infringement of the prohibition in Article 85(1) of the Treaty(see the case-law cited in paragraph 2292 above). 2298. In the present case the anti-competitive nature of the discussions betweenDyckerhoff and Lafarge results specifically from the three documents to which theCommission refers in the contested decision. 2299. Thus the internal memorandum of 23 June 1982 by Lafarge describes a meetingbetween representatives of Lafarge and Dyckerhoff during which Cedest's conductand its effects on Franco-German relations were discussed. The memorandum alsoexpressly refers to the principle of respect for home markets, in the followingwords: 'Home market principle OK. But is it easily complied with  In Belgium?Should perhaps be reviewed at frontier level but not without agreement. Where dowe stand with regard to Cedest? 2300. Similarly, in his letter of 28 July 1982, Mr Hummel, of Dyckerhoff, says: 'And aswe are frankly exchanging ideas, I should like to add today that, in our opinion,true cooperation could have positive effects not only as regards your majorityholding in Wössingen but especially on Cedest. It should be possible to resolveexisting problems through a fundamentally positive attitude on the part of all the participants, in view of the composition of the Cedest and Lafarge administrativeboards. 2301. Lastly, in the internal note by Lafarge dated 2 September 1982 the author, MrMarichal, describing a telephone conversation with Mr Grüner, of Dyckerhoff, onthe same day states, in particular: 'I replied that first of all it was absolutelyessential to explore all the possibilities of direct negotiation with Cedest and then,as you had already said, to seek a meeting with the Chairman of Cedest, in whichyou would be prepared to take part if invited by the Chairman of Cedest. I alsosaid that I considered it too soon to organise a meeting with the German producersaffected by Cedest's aggression to discuss what each of them can or cannot tolerate,as long as the talks with Cedest had not taken place ... Finally, and still in German,he gave a very good summary of what he took to be our position: No generalmeeting, but an essential talk between Dyckerhoff (with or without Heidelberger)and the Chairman of Cedest before any other meeting. 2. A meeting with theGerman producers affected, after the talks, so as to some extent to share thesacrifices if an agreement has been concluded. 2302. Lafarge claims that the content of the three documents shows that there waspersistent disagreement between the various parties concerned. 2303. First, while it acknowledges that its internal memorandum of 23 June 1982 refersto the discussions which it had with Dyckerhoff, it claims that the memorandumcontains no trace of any agreement concluded between it and Dyckerhoff. Thememorandum establishes only that Lafarge's intervention was approved in thecontext of a conflict provoked by Cedest's conduct in Germany. 2304. The Court points out that the mere fact that Lafarge acknowledges that itsmemorandum of 23 June 1982 provides an accurate account of discussions whichit had with Dyckerhoff and that those discussions related to Cedest's conduct inGermany, which is already quite plain from the content of that document, showsthat it thereby participated in concerted action contrary to Article 85(1) of theTreaty. It is irrelevant whether Lafarge complied with the alleged requests madeby Dyckerhoff, since the content of the internal memorandum shows that those twoproducers informed one another of conduct which they envisaged adopting inresponse to Cedest's own conduct. Subject to proof to the contrary, it must be heldthat the discussions between those two undertakings influenced their conduct intrade between France and Germany, so that their attitude constitutes a concertedpractice within the meaning of Article 85(1) of the Treaty (see the case-law citedin paragraph 2292 above). 2305. It is also necessary to reject Lafarge's argument that the reference to 'Homemarket principle OK in its memorandum of 23 June 1982 concerned the naturalmarkets theory based on the weight of cement. As the Commission correctlypointed out, if the cement market were actually determined naturally because of the weight of the product in question there would be no need to ensure compliancewith such a rule relating to the natural organisation of the market. 2306. Second, Lafarge maintains that the letter of 28 July 1982 from Mr Hummel, ofDyckerhoff, is at the very most an invitation to enter into talks, which is notsusceptible of infringing Article 85(1) of the Treaty. 2307. It must be pointed out, however, that the letter in question states that it is in replyto a letter of 8 July 1982 from Lafarge. It also refers to a meeting between therepresentatives of Dyckerhoff and Lafarge. Those factors already preclude thehypothesis of an isolated initiative by Dyckerhoff which would absolve Lafarge inso far as it merely constituted an invitation to enter into talks. It also follows fromDyckerhoff's letter that both producers were 'frankly exchanging ideas (see extractreproduced in paragraph 2300 above). Consequently, even if the objective pursuedby Mr Hummel was actually to secure Lafarge's intervention with the Cedestadministrative board, it is the case that Lafarge discussed with Dyckerhoff thesituation in Germany resulting from Cedest's conduct. That conclusion is confirmedby the internal memorandum of 23 June 1982 from Lafarge, which describes ameeting between those two producers one month previously. 2308. Third, Lafarge claims that it follows from its internal note of 2 September 1982 thatit was unable to exercise any influence over Cedest and that it had refused toparticipate in a general meeting. 2309. That argument must also be rejected. 2310. Contrary to what Lafarge claims, the content of its note does not indicate that itwas unable to exercise any influence on Cedest. The author of the note, MrMarichal, stated: 'L [Lafarge] could not in any way impose its viewpoint onCedest. The subtle difference between imposing a viewpoint and exercisinginfluence leaves scope for conduct on Lafarge's part which was anti-competitive,since its purpose was to interfere with the way in which another economic operatoron the market, Cedest, determined its conduct. Moreover, contrary to what Lafargewould have the Court believe, Mr Marichal did not consider that any initiative byLafarge against Cedest was then inevitably doomed to fail. On the contrary, it isapparent from the note that Lafarge was prepared, on certain conditions, to takeaction to implement the steps undertaken against Cedest. The note states: 'Ireplied that first of all it was absolutely essential to explore all the possibilities ofdirect negotiations with Cedest and then, as you had already said, to seek a meetingwith the Chairman of Cedest, in which you would be prepared to take part ifinvited by the Chairman of Cedest. 2311. Lafarge therefore informed Dyckerhoff that it was prepared to intervene, albeit oncertain conditions, notwithstanding that it had acknowledged that it was unable toimpose its viewpoint on Cedest. 2312. Nor can Lafarge claim that the content of its note of 2 September 1982 expressesits refusal to participate in a general meeting. Apart from the finding made in thepreceding paragraph, it is evident from that note that during the telephoneconversation which it describes Mr Marichal set out the reasons why in Lafarge'sview it was too soon to organise such a meeting and why it was first essential toexplore all possibilities of direct negotiations with Cedest. It is apparent, therefore,that Lafarge and Dyckerhoff discussed the most appropriate way of settling thedispute provoked by Cedest's conduct. What Lafarge's representative said was nottherefore the expression of a categorical refusal to participate in a general meetingof the various parties concerned by Cedest's conduct in Germany. 2313. Furthermore, the arguments which Lafarge derives from the particularcircumstances of its own and its subsidiary Wössingen's positions on the marketmust again be rejected, for the reasons set out in paragraphs 2263 to 2265 above. 2314. It follows that, although, as Lafarge observes, good relations between French andGerman management are not in themselves contrary to Article 85(1) of the Treaty,the content of the three documents on which the Commission relies in thecontested decision establishes that Dyckerhoff and Lafarge acted in concert witha view to preventing any aggressiveness and establishing a climate of harmonybetween the French and German producers (contested decision, recital 50,paragraph 3, third subparagraph ). 2315. Moreover, the foregoing considerations confirm that the Commission did not accuseHeidelberger of having participated in an agreement or a concerted practice withDyckerhoff and Lafarge on the basis of Lafarge's memoranda of 23 June and 2September 1982 (see paragraph 2293 above). E  Concerted action by Dyckerhoff and Ciments Français 2316. The Commission infers the existence of concerted action by Dyckerhoff andCiments Français from two documents, an internal Ciments Français memorandumdated 25 January 1983 (contested decision, recital 22, paragraph 8; documents33.126/4254 to 4256) and a summary record drawn up on 17 May 1983 by CimentsFrançais concerning a meeting between Dyckerhoff and Ciments Français on 9 and10 May 1983 (contested decision, recital 22, paragraph 9; documents 33.126/4251to 4253)). Those two documents lead the Commission to take the view that'Dyckerhoff informed Ciments Français of its plans for dealing with thecompetition from Cedest and its intention not to sell in France (contesteddecision, recital 50, paragraph 3, third subparagraph). 2317. Dyckerhoff acknowledges again that discussions between German and Frenchproducers took place in 1982 and 1983 but makes no specific comment in relationto the two documents to which the Commission refers (see paragraph 2234 above). Dyckerhoff merely observes that the discussions in question cannot constitute aconcerted practice, since they led to no specific result. It analyses the CimentsFrançais summary record only in connection with the objection alleging anagreement to share the Saarland market. In that regard, Dyckerhoff states that itis not to be inferred from that document that it expressed the intention not to sellin France cement which had been ground at the Ciments Luxembourgeois plant.Point 6 of the summary record merely states that Dyckerhoff explained that itintended to use its grinding quota to supply its customers in the Trier region andin the Eifel. 2318. Ciments Français considers that Dyckerhoff's reference to Cedest's conduct at themeetings to which the two documents relied upon in the contested decision relate,one of which refers to the Luxembourg company Intermoselle, cannot constituteevidence of its participation in a concerted practice. Those documents do not revealany intention on its part, but show that it merely played a passive role in thematter. Such a passive role does not serve to show, in accordance with therequirements of case-law (Petrofina v Commission, cited in paragraph 2260 above,paragraphs 214 and 215), that the information provided to Ciments Français waspart of a relationship which involved the exchange of information. Ciments Françaisagain emphasises that it was not present in the Palatinate market in which Cedestwas active, having regard to the special features of its industrial capacity. 2319. The arguments put forward by Dyckerhoff and Ciments Français must be rejected. 2320. First, neither undertaking claims that the content of the summary record drawn upby Ciments Français on 17 May 1983 does not give a faithful account of thediscussions which actually took place on 9 and 10 May 1983. 2321. Second, items 6 and 7 of the record state: '6. DYZ [Dyckerhoff] confirmed that talks were nearing completion with CL[Ciments Luxembourgeois] to provide DYZ with a grinding quota of 100 000 t onCL's [Ciments Luxembourgeois's] grinding plant and for cement deliveries in theTrier region and in the Eifel. These tonnes will not a priori go to Saarland unlessthere is a definite economic advantage compared with the Goelheim plant whichcurrently delivers to Saarland. The tonnes will never go to France. 7. DYZ [Dyckerhoff] described its difficulties on the German market following thecommercial aggression shown by Cedest on this market, and the measures it hadtaken and planned to take to deal with the competition. 2322. It is apparent from item 6 that Dyckerhoff stated during its discussions withCiments Français that cement deliveries in the Trier region and in the Eifel, whichat the time were the subject of talks with Ciments Luxembourgeois, would not apriori go to Saarland and would never go to France. Since Ciments Français has stated that it was present in Saarland and in eastern France, Dyckerhoff thereforeinformed it of conduct on the market which it proposed to adopt in future and tookcare to point out that it would avoid the areas in which Ciments Français wasactive. Ciments Français agreed to discuss the matter. A discussion on the futureconduct of at least one of the two operators concerned, in point of fact Dyckerhoff,constitutes a concerted practice prohibited by Article 85(1) of the Treaty, because,subject to proof to the contrary, which it was for the undertakings concerned toadduce, it must be held that their concerted action influenced their conduct in tradebetween France and Germany (see the consistent line of decisions cited inparagraph 2292 above). 2323. Contrary to what Ciments Français claims, the discussions on the destination of thequantities ground at the Ciments Luxembourgeois plant did not relate solely todeliveries of cement produced from clinker supplied by Intermoselle, since, as theCommission observes in the contested decision (recital 22, paragraph 15, thirdsubparagraph), the record of the meeting states that the discussions concernedcement destined for the Trier region or the Eifel. 2324. The anti-competitive nature of the discussions between Dyckerhoff and CimentsFrançais on 9 and 10 May 1983 is confirmed by item 7 of the record of themeeting, which shows that Dyckerhoff informed Ciments Français of its proposalsto deal with competition from Cedest in Germany. 2325. Third, it follows from the internal Ciments Français memorandum dated 25 January1983 recording a visit to Dyckerhoff on 21 January 1983 that both producersdiscussed Cedest's sales in Germany and Dyckerhoff's sales in France. Item 3,which sets out comments on the items on the agenda of a meeting scheduled for15 February 1983, states that item 7 of that agenda, entitled 'Franco-Germanrelations (document 33.126/4259), deals with Cedest's sales in Germany andDyckerhoff's sales in France ('Item 7. In fact concerns sales by Cedest in Germanyand by DYZ [Dyckerhoff] in France (request by Mr Gruner)). As theCommission observes in its submissions, it is irrelevant that Dyckerhoff took theinitiative in discussing Cedest's conduct in Germany with Ciments Français, sincethat question had by common agreement been included on the agenda of a meetingbetween the two producers. 2326. The content of the memorandum of 25 January 1983 confirms at the very least thatDyckerhoff and Ciments Français intended to discuss Cedest's conduct in Germanyand Dyckerhoff's conduct in France in reaction to Cedest's conduct. It also confirmsthe anti-competitive nature of the discussions. 2327. It follows that the Commission has established that Dyckerhoff and CimentsFrançais participated in the concerted action which it describes in recital 50,paragraph 3, third subparagraph, of the contested decision. 2328. It should further be emphasised that despite its denials Ciments Français did havea particular interest in discussing Cedest's conduct in Germany with Dyckerhoff, inview of the fear of possible reprisals in eastern France by the Germanmanufacturers. The matters raised at the two meetings between Dyckerhoff andCiments Français referred to in the two documents in question constituteparticularly convincing evidence that that was so. Further confirmation of the factthat Ciments Français had an interest in Cedest's conduct in Germany is provided,as the Commission observes in the contested decision (recital 22, paragraph 15,second subparagraph), by the content of an internal memorandum from Vicatdated 22 July 1982 (contested decision, recital 22, paragraph 1; documents33.126/6055 to 6057), which states: 'Very tense relations thus arose between Cedestand SCF [Ciments Français], further heightened by the battle taking place betweenthese two competitors in the Lower Rhine and Moselle regions. This extractconfirms not only the existence of intense competition between Cedest and CimentsFrançais, as the latter claims, but also of serious tension aggravated by thecompetition between those two producers in certain regions. The tension wastherefore not the result of the fact that, as the author of the memorandum claims,the two producers concerned were in competition in the Lower Rhine and Moselleregions. 2329. It follows from all the foregoing considerations, therefore, that the Commission hasdemonstrated in the contested decision that '[f]ollowing the exports by Cedest tothe German Länder other than Saarland and the German producers' reactions inFrance, bilateral consultations took place with a view to limiting cross-frontier flowsof cement (contested decision, recital 50, paragraph 3, first subparagraph)involving Dyckerhoff (paragraphs 2282 to 2328 above), SFIC (paragraphs 2236 to2251 above), Ciments Français (paragraphs 2252 to 2281 and 2316 to 2328 above),Heidelberger (paragraphs 2282 to 2294 above), Lafarge (paragraphs 2252 to 2281and 2295 to 2315 above) and BDZ (paragraphs 2236 to 2251 above). 2330. In any event, the arguments whereby Ciments Français, Heidelberger and Lafargeseek to show an error of assessment in the economic analysis of the Franco-German market in order to dispute their participation in the concerted practicesfound in Article 3(3)(a) of the contested decision must be rejected, since thevarious concerted practices and the participation of the various applicantsconcerned were established on the basis of documents whose probative value doesnot need to be considered in the light of an economic analysis of the relevantmarket (see paragraphs 263 and 264 above). General regulation of cement supplies between France and Germany 2331. Dyckerhoff (T-35/95), SFIC (T-36/95), Cedest (T-38/95), Ciments Français(T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95) and BDZ (T-48/95) deny thatan agreement on the general regulation of cement supplies between France and Germany was concluded, as the Commission asserts in the contested decision(recitals 22, paragraph 10, and 50, paragraph 3, fifth subparagraph), or that theyparticipated in that agreement. 2332. Before the Court assesses the merits of their arguments it is appropriate to set outthe allegations which the Commission makes in the contested decision. 2333. In recital 50, paragraph 3, fifth subparagraph, the Commission states: 'All these concerted practices led to the conclusion of an agreement between theFrench and German undertakings and associations of undertakings concerned. Theletter of 22 September 1986 refers to the progress achieved as compared with 1984at the periodic meetings between Mr Laplace, Mr Lose and Mr Brenke, anagreement reached in 1984, the possibility of renewing the agreement, and adifference between French and German supplies. The memorandum of 12 August1987 refers to continued discussions to resolve the questions raised in the letter of22 September 1986 ... 2334. The Commission further states (recital 22, paragraph 10, third subparagraph): 'The Commission does not have any proof concerning the renewal of theagreement, but the statistics on French deliveries to Germany and Germandeliveries to France (see paragraph 12 below) show that the agreement betweenSFIC, Lafarge, Ciments Français and Cedest on the one hand and BDZ,Heidelberger and Dyckerhoff on the other hand continued after 1986. 2335. The Commission thus identifies first the conclusion in 1984 of an agreement on thegeneral regulation of supplies between France and Germany, then the possibilityof renewing the agreement in 1986 and, last, the existence of the agreement after1986. In the operative part of the contested decision (Article 3(3)(a)) it merelystates that the parties concerned infringed Article 85(1) of the Treaty 'from 23June 1980 to at least 30 September 1989 by participating in agreements andconcerted practices involving the regulation of cement supplies from France toGermany and from Germany to France. A  Conclusion of an agreement in 1984 2336. All the applicants concerned deny having participated in the conclusion of anagreement in 1984. Dyckerhoff, Ciments Français, Heidelberger and Lafargecriticise the Commission in particular for using a document, the letter of 22September 1986 from Mr Laplace to Mr Schuhmacher (contested decision, recital22, paragraph 10), from which, they maintain, it is impossible to ascertain thecontent of the alleged agreement concluded in 1984 or to identify the parties whichconcluded it. 2337. It should be pointed out that Mr Laplace, who drafted the letter, was bothChairman of Ciments Français and Chairman of SFIC, while Mr Schuhmacher, towhom it was sent, was both Chairman of Heidelberger and Chairman of BDZ(contested decision, recital 22, paragraph 10). In the contested decision theCommission considered the letter against the general background revealed by theother documents referred to in recitals 22 and 50. 2338. After setting out the content of the letter, the Commission concluded (contesteddecision, recital 22, paragraph 10, third subparagraph): 'The following essential points emerge from the letter: that there was anagreement between certain French and German enterprises (SFIC, Lafarge,Ciments Français and Cedest on the one hand, and BDZ, Heidelberger andDyckerhoff on the other hand); that the performance or interpretation of theagreement gave rise to disputes submitted for arbitration; that there werediscussions on renewal of the agreement; that the gap between French deliveriesand German deliveries was not the result of bilateral discussions ... between theFrench and German enterprises but of differences of opinion between the Frenchenterprises; that the chairmen of the French and German associations met on 11October 1986 to discuss the two problems referred to in the letter and agreed, asregards quantities, to deal officially with the problem after the Franco-Germanmeeting which took place in Paris on 27-28 October 1986 (according to documents33.126/14764-14768). 2339. The Commission also observes (recital 50, paragraph 3, seventh subparagraph): '... the 1984 agreement resulting from the letter of 22 September 1986 constitute[s][an] infringement of Article 85(1) committed by SFIC, Cedest, Ciments Français,Lafarge, BDZ, Dyckerhoff and Heidelberger. 2340. The criticisms made by the four applicants named in paragraph 2336 above provideno grounds for holding the finding by the Commission to be invalid. In thecontested decision the Commission established the existence of an agreement onthe general regulation of cement supplies between France and Germany and thepurpose of that agreement and also identified the parties to that agreement. 2341. First, it should be observed that although there is no document formally entitled'agreement on the general regulation of supplies between France and Germanyor any single item of evidence of the organisation of a special meeting during whichall the parties concerned expressed their views, the probative force of thedocumentary evidence put forward by the Commission in the contested decisionmust be evaluated in the light of the events which marked relations between theFrench and German industries before 1984, the reality and anti-competitive natureof which have already been established (see paragraphs 2226 to 2330 above). It issettled law that an agreement within the meaning of Article 85(1) of the Treaty does not necessarily have to be recorded in writing (Tepea v Commission, cited inparagraph 2061 above, paragraph 41). For there to be an agreement, it is sufficientfor the undertakings or associations of undertakings in question to have expressedtheir joint intention to conduct themselves in the market in a particular way (seethe case-law cited in paragraph 1010 above). It is not therefore essential todetermine the precise date on which such an agreement was concluded, once theexistence of a concurrence of wills is established on the basis of documentaryevidence. 2342. First, a number of documents identified by the Commission in the contesteddecision establish the existence of the agreement on the general regulation ofcement supplies between France and Germany both in 1984 and in 1986. 2343. In the first place, it follows from a number of passages in the letter of 22September 1986 from the Chairman of Ciments Français and of SFIC, Mr Laplace,to the Chairman of Heidelberger and of BDZ, Mr Schuhmacher, which was draftedseveral weeks before the meeting between the German industry and the Frenchindustry in Paris on 27 and 28 October 1986, that an agreement between the twoindustries on French and German supplies had been concluded in 1984 and thatit still existed then, since its renewal was discussed. 2344. Thus Mr Laplace wrote (first, second and sixth paragraphs): 'As you know, I have periodic meetings with Jürgen Lose and Ted Brenke. I believe, if we look at the situation facing us in 1984, that what we discussed atthose meetings has worked well. ... The second problem concerns the future. Ted Brenke expressed during our lastmeeting the opinion that, if we were to renew our agreement, there would be ademand from the German side that the gap existing since 1984 between French andGerman deliveries be reduced. I told him that, if this demand were to bemaintained, I saw very little hope in our reaching a further agreement. As youremember, there was no logical and, even less, ethical justification for this gap,which was not, in fact, the result of bilateral discussions between French andGerman interests, but resulted from a far more complicated pattern of discussionwhich included conflicts between the French parties, and would probably haveincluded conflicts on the German side had we not agreed then to leave Wössingenaside for the time being. I do not believe that we can have so many people agreeon something new unless they are under pressure, and the very purpose of arenewal is not to let such a pressure develop ... 2345. In the light of those factors, the Commission was entitled to take the view that atthat time there still existed an agreement, concluded in 1984, between the Frenchindustry and the German industry on the regulation of cement supplies betweenFrance and Germany and that its renewal was contemplated when the letter wasdrafted. It is therefore necessary to reject the argument of Dyckerhoff andHeidelberger that the content of the letter demonstrates that the agreementconcluded in 1984 no longer existed in any event on 22 September 1986. 2346. Next, the memorandum to the Chairman dated 15 March 1984 shows that theChairman of Cembureau intended that the Head Delegates should discuss Frenchexports to Germany at their meeting on 19 March 1984 as one of the 'hot spotsthen still existing. It is true that, although the notes on that meeting no longermention French exports to Germany, the participants in the meeting held on 19March 1984 concluded that the pressure from inter-member trade had slackenedconsiderably through improved bilateral contacts (see contested decision, recitals19, paragraphs 9 and 10, and 50, paragraph 3, fourth subparagraph; see alsofootnote 100; documents 33.126/11728, 11729 and 11733 to 11737) (see paragraphs2245 to 2250 above). The fact that the 'hot spot referred to in theabovementioned memorandum was exclusively concerned with French exports toGermany  and not German exports to France  confirms that the parties involvedin Franco-German relations concluded an agreement which resolved at least a largeproportion of the problems which had given rise to the concerted practices whichwere a feature of 1982 and 1983, in particular Cedest's conduct on the Germanmarket and the retaliatory measures taken by the German producers. The fact thatFrench exports to Germany continued to be problematic confirms that, as indicatedin the letter of 22 September 1986, the German industry concerned (the 'Germanside) intended to secure a reduction in the gap between the volume of Frenchexports to Germany and that of German exports to France when the agreementconcluded in 1984 was renewed. 2347. SFIC claims, however, that the memorandum of 15 March 1984, which is merelycited in a footnote in the section of the contested decision devoted to the Franco-German agreement, has no connection with the internal memorandum of 23 June1982 by Lafarge (contested decision, recital 22, paragraph 4; documents33.126/6592 to 6596) or with the Franco-German agreement in general. It reachesthat conclusion on the basis of a contradiction which it finds between theconclusions of the meeting of 19 March 1984 set out in the notes on the meetingdrawn up on 2 April 1984 (recital 19, paragraph 10; documents 33.126/11733 to11737) that 'exports had tended to shrink and the trends registered in thestatistics, otherwise used by the Commission to characterise the Franco-Germanagreement (recital 22, paragraph 10, in fine), according to which cement exportsfrom Germany to France had increased between 1985 and 1989. 2348. First, the interpretation of the actual wording of the contested decision advocatedby SFIC cannot be accepted. The Commission refers to the memorandum of 15 March 1984 not only in footnote 100 but also in recital 50, paragraph 3, fourthsubparagraph, of the contested decision. 2349. Second, it must be pointed out that the contradiction complained of by SFIC resultsfrom an abbreviated presentation of the matters in the contested decision. Sinceonly exports from France to Germany are seen in the memorandum to theChairman dated 15 March 1984 as being problematic in regard to the rule on non-transhipment to internal markets in the Cembureau agreement, the conclusionreached in the notes on the meeting drawn up on 2 April 1984 that 'exports hadtended to shrink can refer only to exports from France to Germany. Consequently,that conclusion is not at variance with the trend which the Commission noted in thestatistics referred to in recital 22, paragraph 12, of the contested decision, to theeffect that exports from Germany to France had increased between 1985 and 1989. 2350. Furthermore, the conclusions reached in the notes on the meeting are morequalified than SFIC suggests, since they state: 'Pressure from inter-member tradehad slackened considerably through improved bilateral contacts. Exports hadtended to shrink but there was still a threat from outsiders. 2351. Last, SFIC infers the existence of a contradiction from the comparison of twofactors relating to different periods, the first before 19 March 1984 and the secondafter that date. 2352. Similarly, the fact that French exports to Germany were not mentioned as a 'hotspot in the notes dated 2 April 1984 on the meeting of Cembureau HeadDelegates held on 19 March 1984 (contested decision, recital 19, paragraph 10),whereas they were referred to as such in the memorandum to the Chairman dated15 March 1984 (contested decision, recital 19, paragraph 9), does not mean, asCiments Français maintains, that the conclusion reached by the Cembureau HeadDelegates at their meeting on 19 March 1984 that pressure from inter-membertrade had slackened considerably through improved bilateral contacts does notconcern Franco-German relations. Having regard to the contacts between theFrench and German industries, to which the letter of 22 September 1986unequivocally attests (see paragraphs 2242 and 2243 above), and the reference toFrench exports to Germany in the memorandum of 15 March 1984, the fact thatthere is no reference to Franco-German relations in the notes on the meeting is ofsuch a nature as to show that the Cembureau Head Delegates considered that theyno longer presented a problem and were therefore no longer a 'hot spot. 2353. Lafarge cannot infer from the reference to French exports to Germany in thememorandum to the Chairman dated 15 March 1984 that there was disagreementwhich showed that the agreement allegedly concluded in 1984 did not exist. Itcannot be ruled out that the agreement was concluded in 1984 after the HeadDelegates meeting on 19 March 1984. Furthermore, even on the assumption thatit was concluded before that meeting, it cannot be ruled out that the disagreement or the problem remaining between the French and German industries was theresult of the German desire to reduce the gap between the volumes of cementexported by the French producers and the German producers. 2354. It is therefore irrelevant that it has not been possible to determine the precise dateon which that agreement was concluded in 1984, since the evidence adduced by theCommission indicates that an agreement within the meaning of Article 85(1) of theTreaty was concluded in 1984. 2355. Dyckerhoff and Heidelberger claim that it is contradictory to find that theagreement commenced in 1984 when, according to the letter of 22 September 1986,the German producers sought to reduce the gap which had existed since 1984between French and German deliveries. Dyckerhoff adds that that contradictionalso follows from the fact that Franco-German supplies were one of the 'hot spotsexamined at the Cembureau Head Delegates meeting on 19 March 1984 and fromthe fact that the agreements and concerted practices relating to supplies betweenFrance and Germany, referred to in Article 3(3)(a) of the contested decision, arefound to have commenced on 23 June 1982. 2356. In reality there is no contradiction following from the matters which, according toDyckerhoff and Heidelberger, rule out the conclusion of an agreement in 1984.First, it follows from the letter of 22 September 1986 that it was the Germanproducers' desire to reduce the gap between French imports into Germany andGerman imports into France that led Mr Laplace to talk of renewing theagreement. Then, as indicated in paragraphs 2347 to 2353 above, the fact thatFranco-German deliveries were discussed at the Cembureau Head Delegatesmeeting on 19 March 1984 provides further evidence that negotiations took placebetween the French and German industries and that an agreement was concludedbetween them, since the documentary evidence submitted by the parties shows thatthose deliveries were not subsequently discussed within Cembureau. Last,Dyckerhoff is confusing two different matters: first, the single and continuousinfringement involving the regulation of cement supplies from France to Germanyand from Germany to France between 23 June 1982 and 30 September 1989, whichincludes all the concerted practices and agreements established by the Commissionin recital 50, paragraphs 1 to 4, of the contested decision (see paragraph 2170above) and, second, the agreement having the same purpose concluded in 1984,referred to more specifically in recital 50, paragraph 3, fifth subparagraph, of thecontested decision. Since the latter agreement is just one of the constituentelements of the single and continuous infringement it is not contradictory to findthat it commenced on a different date from that on which the 1984 agreement isfound to have commenced. 2357. Second, the passages from the letter of 22 September 1986 quoted in paragraph2344 above, and more particularly the one to the effect that Ted Brenke expressedthe opinion that, if the agreement were to be renewed, there would be a demand from the German side that the gap existing since 1984 between French andGerman deliveries be reduced, shows that the object of the agreement, which wasstill in force in 1986, was to regulate cement supplies between France andGermany. 2358. None of the evidence adduced by the applicants permits the conclusion that theobject of the agreement was limited to areas other than Saarland. In that regard,Ciments Français cannot rely on a distinction between the object of the variousconstituent elements of the infringement referred to in Article 3(3)(a) of thecontested decision, the alleged agreement to share the Saarland market, theconcerted practices relating to Cedest's sales in the Palatinate and the agreementconcluded generally. It is sufficient to find that all those elements concern thesharing of the market and that no distinction between Saarland and the otherfrontier areas concerned is apparent from the wording of the letter of 22September 1986. Any geographical distinction between the first element, thealleged agreement to share the Saarland market, and the second, the concertedpractices relating to Cedest's commercial conduct in Germany, is not justified interms of the evidence of the existence of an agreement involving the generalregulation of cement sales between France and Germany, having regard to thewording of the letter of 22 September 1986. 2359. Accordingly, there is no need to distinguish what the parties had in mind forSaarland from what they intended for the other areas in the context of thatagreement involving the general regulation of the markets. It follows that theCommission was entitled to take the view that the 1984 agreement had as its objectthe sharing of markets and the restriction of cross-frontier flows of cement betweenFrance and Germany (contested decision, recital 50, paragraph 4, firstsubparagraph). In any event, even on the assumption that the allegations that theagreement did not concern Saarland are well founded, it is none the less the casethat such an agreement still involved the regulation of sales between France andGermany. 2360. Nor can Ciments Français maintain in that regard that neither the content of theagreement concluded in 1984 nor, a fortiori, its anti-competitive nature can beestablished on the basis of a letter drafted on 22 September 1986, which refers,without more, to the mere existence of an agreement. The absence of a formaldocument recording in precise terms the content of a concurrence of wills betweena number of economic operators in a market does not necessarily mean that it isimpossible to identify the elements of an agreement contrary to Article 85(1) of theTreaty. In this case the Commission established, upon examining the letter of 22September 1986 in the light of the other documents referred to in the contesteddecision (see paragraphs 2226 to 2330 above), that the agreement concluded in1984 had as its object the regulation of cement sales between France and Germany.Furthermore, the fact that the Commission established the existence of thatagreement mainly on the basis of a letter drafted in 1986, after the agreement in question had been concluded, shows both that the agreement was concluded andthat it was implemented. 2361. In the present case the object of the agreement concluded in 1984 and still in forcein 1986, namely to regulate cement supplies between France and Germany, wassufficient to establish that it was in the nature of an infringement. 2362. Third, it is necessary to identify the parties to that agreement. 2363. As regards, first, the two national associations, SFIC and BDZ, it has already beenfound that the letter of 22 September 1986 indicates at a number of points thatthey participated in the agreement (see paragraphs 2242 and 2243 above). 2364. Furthermore, SFIC has nothing specific to say about that letter from its Chairmanto the Chairman of BDZ. 2365. BDZ, on the other hand, puts forward a number of arguments in order to showthat it did not participate in the agreement concluded in 1984. It relies on the factthat there is no copy of the letter in its own files and that its Director General, MrSteinbach, only became aware of the letter upon reading the SO. 2366. The Commission rightly observes in the contested decision (recital 22, paragraph18) that, as the letter was sent to the Chairman of BDZ, Mr Schuhmacher, thereis no need to determine whether there was a copy of the letter in Mr Steinbach'sfiles or the point at which he became aware of it. It is sufficient to establish thatthe writer of the letter, referring to his capacity as Chairman of SFIC, consideredthat Mr Schuhmacher represented the German cement industry's interests in itsrelations with the French cement industry, which could only be because of MrSchuhmacher's then position as head of BDZ. It is also significant that the letteruses expressions such as 'French and German interests, 'French side and'German side (see paragraph 2243 above). 2367. BDZ cannot rely in its defence on its allegation that the handwritten comments inGerman on the letter of 22 September 1986 show that Mr Schuhmacher had nointention of discussing the matters dealt with in the letter at the meeting betweenthe French and German industries in Paris in October 1986. At the most, thosecomments confirm that the addressee of the letter, Mr Schuhmacher, regarded theletter as falling within the scope of his activities in the national association ofcement producers in his country, namely BDZ. They are as follows: 'Conversation of 11.10: (a) Agreed in principle on function of arbitrators (b) No to the quantity ratios, official discussion only after Paris. 2368. As regards the memorandum to the Chairman dated 15 March 1984 (contesteddecision, recital 19, paragraph 9; documents 33.126/11728 and 11729) concerningFrench exports to Germany, it was intended to prepare for a meeting ofCembureau Head Delegates in which SFIC and BDZ participated as members ofCembureau representing the interests of the cement industries of their countries.The Commission was therefore right to find in the contested decision that SFICand BDZ had participated in the agreement concluded in 1984 and which was stillin force in 1986. 2369. BDZ questions how it could have participated in an agreement from 23 June 1982,when in the contested decision the Commission alleges the existence of concertedpractices between 1982 and 1984 and relies on the finding of an agreement onlyfrom 1984. 2370. Like Dyckerhoff (see paragraph 2356 above), BDZ confuses the single andcontinuous infringement involving the regulation of cement supplies from Franceto Germany and from Germany to France between 23 June 1982 and 30 September1989, which embraces all the concerted practices and agreements identified by theCommission in recital 50, paragraphs 1 to 4, of the contested decision, with theagreement having the same object concluded in 1984, which is referred to morespecifically in recital 50, paragraph 3, fifth subparagraph, of the contested decisionand is just one of the elements constituting the single and continuous infringement. 2371. BDZ also claims that the Lafarge internal memorandum of 23 June 1982(contested decision, recital 22, paragraph 4; documents 33.126/6592 to 6596), in sofar as it refers to a discussion between producers in which Lafarge did not takepart, is no evidence of its accession to an agreement to share the markets. It alsoquestions the connection which the Commission attempts to make between MrSchuhmacher's activities in the summer of 1985 and BDZ's participation inagreements to share the French and German markets. 2372. In that regard, it must be observed that the Commission did not claim that itestablished BDZ's participation in a market-sharing agreement on the basis of theLafarge memorandum of 23 June 1982. That document is referred to in thecontested decision (recitals 22, paragraph 4, and 50, paragraph 3, secondsubparagraph) in order to show that talks were held between SFIC and BDZ (seeparagraphs 2236 to 2251 above). Moreover, as the Commission correctly observes,no connection was established between Mr Schuhmacher's activities during thesummer of 1985 and BDZ's participation in the infringement referred to in Article3(3)(a) of the contested decision. BDZ's argument is therefore devoid of purpose. 2373. As regards Ciments Français, it transpires that, as well as being affiliated to SFIC,it was chaired by the writer of the letter of 22 September 1986, Mr Laplace.Referring to his capacity as Chairman of SFIC, Mr Laplace expressed his view onbehalf of the members of that association and, first and foremost, on behalf of his own company, Ciments Français. Furthermore, the fifth paragraph of the letterreads: 'The reason why I am proposing this is that while we can bestow thatauthority on the arbiters, I for one, as chairman of the Syndicate, have none whenit comes to taking even small decisions regarding the rights of my constituents,other than my own company, and would have to refer to all of them, at their toplevel for everything, which is very cumbersome. 2374. Ciments Français's participation in the agreement involving the general regulationof supplies also forms part of the extension of its conduct before 1984, whichconsisted inter alia in bringing pressure to bear on Cedest and in taking part inbilateral concerted action with Dyckerhoff (see paragraphs 2252 to 2281 and 2316to 2328 above). 2375. As regards Lafarge, it must be pointed out that it is a member of SFIC and thatthe Chairman of SFIC, Mr Laplace, expressly stated in his letter of 22 September1986 that in order to take the least decision concerning the rights of the membersof SFIC he would have to refer to their leaders (fifth paragraph of the letter,referred to in paragraph 2373 above). That shows that, having regard to SFIC'sinternal decision-making procedure, Lafarge was directly involved in the conclusionof the agreement in 1984. Nor has Lafarge relied on any document to show thatit abandoned the agreement concluded in 1984. In that regard, contrary to what itclaims, the reference to Wössingen in the letter of 22 September 1986 cannot bepresented as evidence that Lafarge did not participate in the agreement concludedin 1984. Although it is apparent from the sixth paragraph of that letter that at thetime when the agreement was concluded a decision had been taken not todetermine Wössingen's case, that does not mean that Lafarge did not participatein the agreement. The only inference that can be drawn is that Wössingen'sposition in Germany still posed a problem in 1984. Lafarge itself stated in itssubmissions that the only reference to Wössingen in the Bundeskartellamt'sdecision of 12 September 1988 concerning an agreement in southern Germanyconcerned its relations with the other German cement producers after May 1986,which confirms that Wössingen's position up to that date was a special case. On theother hand, there is nothing to support the conclusion that this special position ofWössingen in Germany was taken by the other parties to the agreement, whetherFrench or German, to mean that Lafarge was not participating in it. 2376. Moreover, it follows from documents 33.126/6976 to 6979 and 33.126/16556(contested decision, recital 22, paragraph 11) that Lafarge's representatives on theWössingen supervisory board expressed the wish that Wössingen should take partin the quota system for southern Germany. The Bundeskartellamt inquiry anddecision of 12 September 1988 concerning that quota allocation for southernGermany revealed that Lafarge had agreed with Mr Schuhmacher, the Chairmanof BDZ and of Heidelberger, that Wössingen should take part in that agreement(contested decision, recital 22, paragraph 11, fourth subparagraph; documents33.126/6720 to 6745). 2377. Lafarge claims that the reference in the contested decision to the Bundeskartellamtdecision of 12 September 1988 infringes its rights of defence, in so far as thatdecision appears in the file of national complaints relating to the German market,which were dropped, and the decision was only supplementary evidence in the SO.Lafarge states that Wössingen is mentioned in the Bundeskartellamt decision onlyin connection with its relations with the other German cement producers after May1986, so that the Commission could not find on the basis of that decision thatLafarge took part in an alleged Franco-German agreement before May 1986. Itaccuses the Commission of having distorted the content of the Bundeskartellamtdecision in relation to Wössingen. 2378. Those arguments must be rejected. 2379. As regards the alleged infringement of Lafarge's rights of defence, it is sufficientto observe that the Commission made specific reference in the part of the SOdealing with the Franco-German agreement (paragraph 12, p. 28) to all the mattersset out in the contested decision, recital 22, paragraph 11, and that all thedocuments referred to on that occasion were in the Box (see paragraph 95 above). 2380. As regards the content of the Bundeskartellamt decision, it should be observed thatthe decision is referred to in recital 22, paragraph 11, of the contested decision.According to footnote 104, however, which is included in that paragraph, the factswhich paragraph 11 describes 'are not part of the objections of the Commission[and] are referred to solely in order to present a fuller picture of the relationshipsbetween the various actors. Irrespective of whether or not the Commission usedthe content of the Bundekartellamt's decision to establish Lafarge's participationin the infringement referred to in Article 3(3)(a), it suffices to find that the factsset out in recital 22, paragraph 11, of the contested decision were explicitlymentioned in point 12 of the SO (Chapter 2) and that the documents relied on bythe Commission in that connection were all in the Box (see paragraph 95 above).In those circumstances, there is no question of an infringement of Lafarge's rightsof defence in that regard. 2381. It should be pointed out, next, that Lafarge did not dispute the fact, established onthe basis of documents cited in the contested decision, that on 27 September 1985its representatives on the Wössingen supervisory board expressed the wish thatWössingen should take part in the quota system for southern Germany and thatLafarge agreed with Mr Schuhmacher, Chairman of BDZ and of Heidelberger, thatWössingen should be able to take part in that agreement (see paragraph 2376above). 2382. The proximity of the date on which the agreement involving the general regulationof cement supplies between France and Germany was concluded (1984) to the dateon which Wössingen joined the agreement concerning southern Germany (1985),when considered together with the intervention of Mr Schuhmacher  Chairman of BDZ, recipient of the letter of 22 September 1986 and negotiator with Lafargevis-à-vis the agreement for southern Germany  is further evidence of Lafarge'sparticipation in the agreement concluded in 1984. 2383. Furthermore, as in the case of Ciments Français (see paragraph 2374 above),Lafarge's participation in the agreement involving the general regulation of suppliesis also an extension of its conduct before 1984, which consisted inter alia in bringingpressure to bear on Cedest and in taking part in bilateral concerted action withDyckerhoff (see paragraphs 2252 to 2281 and 2295 to 2315 above). 2384. As regards Cedest, it is clear that there are already grounds for annulling Article3(3)(a) of the contested decision in so far as it finds that it participated in the firsttwo constituent elements of the infringement in question, namely the allegedagreement to share the Saarland market and the concerted practices between 1982and 1984 (see paragraphs 2225 and 2288 above). According to the contesteddecision (recital 50, paragraphs 1 to 3), it was those first two elements which ledto the conclusion of an agreement in 1984, which is the only other elementconstituting the infringement referred to in Article 3(3)(a). The Commission cannottherefore find that Cedest participated in the third element, since its participationin the first two elements cannot be regarded as established, for both proceduraland substantive reasons (see paragraphs 2211 and 2284 to 2290 above), and thereis no direct evidence that Cedest participated in the agreement concluded in 1984.Cedest's membership of SFIC cannot in itself suffice in that regard, since SFIC alsoincludes other members which were not identified by the Commission as parties tothe agreement concluded in 1984. 2385. It follows that in the contested decision the Commission has failed to establish tothe requisite factual and legal standard that Cedest participated in the infringementreferred to in Article 3(3)(a). That provision must therefore be annulled in so faras it relates to Cedest. 2386. As regards Dyckerhoff, it is apparent from the letter of 22 September 1986 that since 1984 one of its representatives, Mr Lose, had participated in periodicmeetings with the Chairman of SFIC, Mr Laplace, and Mr Brenke, of Heidelberger(contested decision, recital 22, paragraph 10, first subparagraph). As in the case ofCiments Français and Lafarge (see paragraphs 2374 and 2383 above), Dyckerhoff'sparticipation in that agreement involving the general regulation of supplies is thecontinuation of its pre-1984 conduct, which consisted inter alia in taking part inbilateral concerted actions with Heidelberger, with Lafarge and with CimentsFrançais (see paragraphs 2282 to 2328 above). 2387. As regards Heidelberger, it must be pointed out that the recipient of the letter of22 September 1986 was not only Chairman of BDZ but also Chairman ofHeidelberger. Furthermore, in that letter the Chairman of SFIC, Mr Laplace,mentions periodic meetings with Mr Lose, of Dyckerhoff, and Mr Brenke, of Heidelberger, since 1984. As in the case of the other French and Germanproducers concerned (see preceding paragraph), Heidelberger's participation inthat agreement involving the general regulation of supplies was the continuation ofits pre-1984 conduct, which consisted inter alia in taking part in bilateral concertedaction with Dyckerhoff (see paragraphs 2282 to 2294 above). 2388. As in the case of the concerted practices examined above (see paragraph 2330), theCourt must reject the arguments whereby Ciments Français, Heidelberger andLafarge seek to establish an error of assessment in the economic analysis of theFranco-German market in order to challenge the finding, in Article 3(3)(a) of thecontested decision, that they participated in the agreement involving the generalregulation of cement sales between France and Germany. The existence andcontent of that agreement and the participation of the various applicants concernedwere established on the basis of documents whose probative value does not needto be assessed in the light of an economic analysis of the relevant market. 2389. It follows from all the foregoing that the Commission was entitled to take the viewthat, apart from Cedest (see paragraphs 2384 and 2385 above), all the French andGerman producers involved in cement supplies between France and Germany hadparticipated in an agreement involving the general regulation of cement suppliesbetween those two Member States. B  Pursuit of the agreement after 1986 2390. Dyckerhoff, Ciments Français, Heidelberger and BDZ complain of the lack ofproof that the agreement was renewed, a lack of proof acknowledged by theCommission in the contested decision (recital 22, paragraph 10, thirdsubparagraph): 'The Commission does not have any proof concerning the renewalof the agreement .... The applicants consider that since the Commission had noproof that the agreement was renewed it could not then rely (same paragraph)solely on an analysis of the statistics exchanged by the national associations inquestion to establish that the agreement was renewed. They claim that there is atleast an alternative economic explanation to the findings deriving from thosestatistics. 2391. However, although it is clear from the contested decision, that in order to establishthat the parties to the 1984 agreement intended to renew it, the Commission onceagain refers to the letter of 22 September 1986 (see recital 50, paragraph 3, fifthsubparagraph: 'The letter of 22 September 1986 refers to ... the possibility ofrenewing the agreement), the Court finds that, contrary to what is suggested bythe applicants, the Commission did not accept the existence of an agreementrenewed in 1986 or later as part of the infringement of Article 85(1) to which itrefers in Article 3(3)(a) of the contested decision. 2392. The Commission actually used its findings from the statistics exchanged by the twonational associations to confirm that the concurrence of wills existing since 1984between the French and German industries had continued, not to show that theagreement concluded in 1984 had been renewed. Thus in recital 22, paragraph 10,third subparagraph in fine, of the contested decision the Commission states: 'TheCommission does not have any proof concerning the renewal of the agreement, butthe statistics on French deliveries to Germany and German deliveries to France ...show that the agreement between SFIC, Lafarge, Ciments Français and Cedest onthe one hand and BDZ, Heidelberger and Dyckerhoff on the other hand continuedafter 1986. 2393. Although the Commission does not have any proof that the agreement concludedin 1984 was renewed and acknowledges that fact in the contested decision, theparties' intention to improve the agreement arrived at in 1984 and still in force in1986 is clearly apparent from the passages from the letter of 22 September 1986(contested decision, recital 22, paragraph 10; documents 33.126/3574 to 3576)quoted in paragraph 2344 above. The meetings between Mr Laplace, Mr Lose andMr Brenke and the need to have recourse to arbitrators (Schiedsrichter), and alsothe 'German side's desire to reduce the gap existing since 1984 between Frenchand German deliveries, show that the parties then wished to continue theiragreement on the regulation of sales between France and Germany, if necessaryby refining the scope of their concurrence of wills in order to settle all the problemsencountered in the Franco-German frontier area. 2394. Dyckerhoff cannot claim that the letter of 22 September 1986 does not describeany discussion having as its object the renewal of an agreement. The sixthparagraph of the letter refers on an number of occasions to the renewal of anagreement ('if we were to renew our agreement, 'very little hope in our reachinga further agreement and 'the very purpose of a renewal is not to let such apressure develop). 2395. Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and BDZ claim that,having regard to the judgment in Woodpulp II, cited in paragraph 106 above(paragraph 71), the analysis of the statistics relating to deliveries between Franceand Germany could not serve to demonstrate the continuation of the agreementconcluded in 1984, since there is an alternative economic explanation to thecollusion found in the contested decision. 2396. Furthermore, Dyckerhoff, SFIC, Ciments Français and Heidelberger dispute theevidential value of the content of the internal Heidelberger memorandum of 12August 1987 (document 33.126/3573) cited in recital 22, paragraph 10, fourth andfifth subparagraphs. They further maintain that this document, which is not referredto in the SO, could not be used against them in the contested decision. 2397. The Court points out that the argument alleging an infringement of the rights ofthe defence has already been rejected in paragraph 345 above. 2398. Before assessing the merits of the other arguments, it is appropriate to re-examinethe relevant passages of the contested decision. In the contested decision theCommission, after observing that it has no proof concerning the renewal of theagreement, claims that the statistics on French deliveries to Germany and Germandeliveries to France between 1 January 1985 and 30 September 1989 show that theagreement continued after 1986 (recital 22, paragraph 10, third subparagraph infine). It goes on to state that according to an internal Heidelberger memorandumof 12 August 1987 the Franco-German discussions continued in 1987. In recital 22,paragraph 12, third subparagraph, the Commission observes that a comparison ofthese data 'shows that the gap existing since 1984 between French and Germandeliveries (letter of 22 September 1986 ...) was reduced. 2399. In its submissions in Case T-48/95 the Commission confirmed that it had concludedfrom the changes in the statistics that the agreement had continued beyond 1986. 2400. The Commission therefore puts forward two different pieces of evidence todemonstrate that the concurrence of wills which materialised in 1984 and stillexisted in 1986, the purpose of which was to regulate cement sales between Franceand Germany, survived at the very least until 30 September 1989: the findings fromthe statistics set out in recital 22, paragraph 12, and the Heidelberger memorandumof 12 August 1987 (contested decision, recital 22, paragraph 10). 2401. It is necessary, first, to assess the evidential value of the memorandum of 12 August1987. 2402. Heidelberger cannot claim that the complaint alleging the continuation of theagreement in 1987 was not made against it in the SO. There is nothing in the SOto indicate that the Commission considered that the concurrence of wills found toexist in 1984 no longer existed in 1987 (see also paragraph 576 above). On thecontrary, in the passages of the SO dealing with the Franco-German agreement theCommission took great care not to state that the concurrence of wills had ceased.It even observed that the handwritten comments on the letter of 22 September1986 showed that the problem of the quantities exported to France and Germanyhad been discussed after the Franco-German meeting on 27 and 28 October 1986(SO, paragraph 12, p. 27). 2403. Dyckerhoff and Heidelberger claim that the content of the memorandum of 12August 1987 shows that there was no agreement. Ciments Français states that thereis nothing in the memorandum to indicate the content of the 1984 agreement orthat the agreement was renewed. 2404. Those arguments must be rejected. 2405. First, the Commission used the memorandum of 12 August 1987 not todemonstrate the existence, the continuation or the renewal of the agreementconcluded in 1984 but rather to show that the Franco-German discussions referredto in the letter of 22 September 1986 had continued. Thus the Commission statesin the contested decision (recital 22, paragraph 10, third and fourth subparagraphs):'According to an internal Heidelberger memorandum of 12 August 1987(document 33.126/3573), the Franco-German talks continued in 1987: I agreedwith Mr Laplace to discuss, before his term of office in the French cement industrycame to an end, a number of well-known unresolved matters. You will meet himwith the Cembureau delegation that is leaving for Russia. I should like to discusswith you, before you meet him, the content of your talks with him. Annex. TheAnnex is the letter of 22 September 1986 referred to above. The reference to'well-known ... matters which were 'unresolved and the fact that the letter of 22September 1986 is annexed to the memorandum show that the 'mattersconcerned relate to the possible renewal of the agreement with which the letterdeals. According to the content of the letter, the parties to the agreement wishedto improve it and extend its scope to the regulation of certain matters left inabeyance when it was concluded in 1984, such as the reduction of the gap betweenthe volumes of deliveries in both countries. The fact that such questions stillsubsisted therefore shows that the concurrence of wills which came into existencein 1984 and which was again referred to in the letter of 22 September 1986 stillexisted in August 1987. 2406. On the other hand, the continuation of the concurrence of wills whose existence isestablished in 1984 and 1986 in the case of Dyckerhoff, SFIC, Ciments Français,Heidelberger, Lafarge and BDZ (see paragraphs 2363 to 2389 above) is alsoapparent from the fact that the letter of 22 September 1986 from the Chairman ofSFIC and of Ciments Français to the Chairman of BDZ and of Heidelberger wasannexed to the Heidelberger memorandum of 12 August 1987. 2407. Furthermore, Lafarge and BDZ have made no criticism or particular comment inrelation to the Heidelberger memorandum or to its use by the Commission in thecontested decision. 2408. Second, it is necessary to assess the conclusiveness of the findings based on thestatistics reproduced in recital 22, paragraph 12, of the contested decision. 2409. In recital 22, paragraph 10, of the contested decision the Commission states thatthe statistics show that the agreement continued after 1986. In recital 22, paragraph12, third subparagraph, it considers that a comparison of these statistics shows thatthe gap existing since 1984 between French and German deliveries referred to inthe letter of 22 September 1986 was reduced. In recital 50, paragraph 3, sixthsubparagraph, it explains that the exchanges of information between the twoassociations indicate that the reduction sought in the difference between the Frenchand German supplies was achieved. 2410. It is true that in March 1984 exports from France to Germany were still regardedas a 'hot spot (see memorandum to the Chairman dated 15 March 1984(contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729);that the letter from the Chairman of SFIC and of Ciments Français to theChairman of BDZ and of Heidelberger dated 22 September 1986 (see paragraphs2343 and 2344 above) indicates that the German industry concerned expressed thedesire to reduce the gap between the volume of French exports to Germany andthat of German exports to France; and that none of the applicants concerneddisputes the reality of the trend towards the reduction of that gap between 1January 1985 and 30 September 1989 as a result of an increase in German exportsto France, a point confirmed by the data reproduced in recital 22, paragraph 12,of the contested decision. However, it must be emphasised that at the hearingCiments Français submitted an alternative economic explanation which theCommission, contrary to what it maintains in the contested decision (recital 22,paragraph 15) and in its submissions, did not succeed in refuting. 2411. Ciments Français explained that the reasons for a trend towards a reduction in thegap were the greater expansion of the French regional market and the higher levelof French prices in comparison with German prices. 2412. In rejecting the explanation that cement producers found French prices moreattractive in 1986, 1987 and 1988 the Commission presented a table based ondocuments setting out the prices communicated to Cembureau by BDZ (documents33.126/15161 and 15163) and by SFIC (documents 33.126/15168 to 15170) fromwhich it is clear that German prices were higher than French prices. TheCommission concluded (contested decision, recital 22, paragraph 15, sixthsubparagraph): '... French prices were not at all more attractive than Germanprices in the period 1986-88. On the contrary, the price difference is all the greaterconsidering that the German PZ35 cement has a lower resistance grade than theFrench CPJ45 and CPA55R grades. The Commission therefore concluded (recital22, paragraph 15, final subparagraph): 'It is clear that the explanations given byCiments Français are not supported by the facts. 2413. In the present proceedings Ciments Français pointed out to the Commission thatit had committed an error of assessment when comparing the German pricescommunicated to Cembureau by BDZ with the French prices communicated toCembureau by SFIC, in that it presents them as 'gross ex-works price[s](contested decision, recital 22, paragraph 15), whereas the prices communicated toCembureau by BDZ were delivered prices and those communicated to Cembureauby SFIC were 'ex-works prices. 2414. It follows from documents 33.126/15161 to 15163 and 15168 to 15170, which arereferred to in the contested decision (recital 22, paragraph 15), that, as CimentsFrançais emphasises, the prices communicated to Cembureau by BDZ and SFICare not comparable as such, since the former are delivered prices ('frei site or 'frei station bundesgebiet) and the latter 'ex-works prices. It is also clear froma table presented by Ciments Français (annex 30 to the application in Case T-39/95) that the expression 'frei station bundesgebiet does not take account of theex-works price. That table, which originated in a Cembureau database and is datedMay 1994, sets out the prices for Germany for the years 1979 to 1993. It refers to'delivered on site or 'delivered to site prices which, for the months and yearsreferred to in documents 33.126/15161 to 15163, correspond to the prices in thetable in recital 22, paragraph 15, of the contested decision. The latter table clearlycontains an error, since it describes the prices indicated in documents 33.126/15161to 15163 as 'German average gross ex-works price communicated by BDZ only forPZ 35. As such, the table therefore has no evidential value. 2415. Ciments Français also submitted other documents in order to establish, on the basisof a comparison between delivered prices at various places, that French prices werehigher than German prices for the years 1986, 1987 and 1989 (annex 30 to theapplication in Case T-39/95). However, the Commission did not discuss the contentof those documents, but merely referred to the contested decision. 2416. In such circumstances, the Commission cannot rely on an analysis of the datareproduced in recital 22, paragraph 12, of the contested decision to establish thecontinuation of an agreement between the French industry and the Germanindustry on the regulation of sales between the two countries. It has failed todemonstrate that the only plausible explanation for the reduction in the gapbetween the volume of French exports and the volume of German exports resultingprincipally from the increase in German exports was the continuation of anagreement (Woodpulp II, cited in paragraph 106 above, paragraph 71). Thereduction in the gap could equally well result from competitive conduct on the partof the undertakings concerned and in particular from the fact that cementproducers found French prices more attractive in 1986, 1987, 1988 and 1989, asCiments Français explained to the Commission during the administrative procedure. 2417. Accordingly, there is no need to examine the other arguments put forward by theapplicants to challenge the value of the statistics on which the Commission relied,since the existence of a reasonable alternative economic explanation deprives thosestatistics of all probative force as regards all the applicants concerned by Article3(3)(a). 2418. It follows from the foregoing (see paragraphs 2390 to 2417 above) that theevidence referred to in the contested decision establishes the continuation of theagreement referred to in Article 3(3)(a) of the contested decision only until 12August 1987, the date on which the Heidelberger memorandum was drafted (recital22, paragraph 10, fourth subparagraph). It follows that Article 3(3)(a) must beannulled in so far as it finds the existence of an infringement of Article 85(1) of theTreaty after 12 August 1987 and finds that Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and BDZ participated in such an infringement after thatdate. 2419. For the remainder, Heidelberger cannot claim that the Commission reversed theburden of proof by requiring it to show that it did not participate in any of theelements of the infringement referred to in Article 3(3)(a) of the contesteddecision. Nor can it rely on the existence of only a small number of documentsreferred to in the contested decision that concern it. The Commission has shown,on the basis of documents, that Heidelberger participated in the infringement inquestion. The fact that Heidelberger considers that only the letter of 22 September1986 and its internal memorandum of 12 August 1987 concern it is not of such anature as to undermine the evidence that it participated in the infringement inquestion. The precise number of documents used to prove its participation is notdecisive, since it is only their evidential value which is relevant. Furthermore, otherdocuments, such as the internal Lafarge memorandum referring to the meeting on17 November 1982 between Dyckerhoff, Heidelberger and Cedest (see paragraphs2282 to 2294 above), establish Heidelberger's participation in the infringementreferred to in Article 3(3)(a). 2420. As a result of this assessment of the arguments put forward by the applicantsreferred to in Article 3(3)(a) of the contested decision, it has been determinedwhether or not each of the constituent elements of the infringement referred to inthat provision has been established as against those parties. However, a number ofthem have specifically disputed the duration of their participation in theinfringement. Duration of the participation of certain parties in the infringement referred to in Article3(3)(a) 2421. Ciments Français complains of the artificial nature of the construction whereby theCommission establishes a link between the various elements found to be aninfringement in Article 3(3)(a) of the contested decision, when those elements havedifferent actors and distinct objectives, as the Commission acknowledges in thecontested decision. 2422. Heidelberger claims that the Commission has failed to adduce evidence that theagreements and concerted practices in question continued until 30 September 1989. 2423. Lafarge questions how the Commission is able in its case to take the date of 30September 1989 as the date on which the infringement ceased without adducingevidence that it participated in the infringement until that date. 2424. Before assessing the merits of those various arguments, it is appropriate to considerthe passages in the contested decision which deal with that point. 2425. It is apparent from the contested decision that the question of the duration of theinfringement referred to in Article 3(3)(a) is linked to the question of its single andcontinuous nature. The Commission states (recital 50, paragraph 4): 'In view of thefact that the agreement on the sharing of the Saarland market, the concertedpractices involved in the pursuit of a solution on the limiting of sales by Cedest inGermany apart from the Saarland, and the 1984 agreement referred to in the letterof 22 September 1986 all had as their object the sharing of markets and therestriction of cross-frontier flows of cement between France and Germany, theCommission takes the view that the agreements and concerted practices may bedeemed to be a single and continuous infringement. In addition, even thoughinitially SFIC, BDZ and Lafarge were not parties to the agreement on theSaarland, they accepted it as from 23 June 1982, i.e. as from the time when theyacted to extend the agreement on the Saarland to other German Länder and to fitthe agreement into the broader framework of the regulation of trade flows betweenFrance and Germany. The single and continuous infringement relating to therestriction of cross-frontier flows between France and Germany was committed,from 23 June 1982 to 30 September 1989, by SFIC, Cedest, Ciments Français,Lafarge, BDZ, Dyckerhoff and Heidelberger. 2426. It should be observed that for there to be a 'single infringement there must be aseries of efforts made by the various parties in pursuit of a single anti-competitiveeconomic aim (see in particular Rhône-Poulenc, cited in paragraph 1053 above,paragraphs 125 and 126). 2427. In the present case it is therefore necessary to ascertain whether the conductcomplained of in Article 3(3)(a) of the contested decision was part of a singleinfringement. 2428. It has already been established that the Commission did not demonstrate theexistence throughout the material period of one of the constituent elements of theinfringement referred to in Article 3(3)(a), namely the alleged agreement on thesharing of the Saarland market (see paragraphs 2172 to 2225 above). It is thereforenecessary to determine whether, even in the absence of that constituent element,the existence of a single and continuous infringement is still established. 2429. The identity of object between the different elements of the infringement whichwere properly established is not open to dispute. Both the various concertedpractices between 1982 and 1984, and the 1984 agreement, which remained in forceuntil 12 August 1987, had as their object the regulation of cross-frontier flows ofcement between France and Germany or the sharing of the markets (seeparagraphs 2226 to 2420 above). 2430. Moreover, the participants in those aspects of the unlawful conduct knew, or oughtto have known, that it was part of an overall plan in pursuit of that commonunlawful object. 2431. The criticisms put forward by Ciments Français must therefore be rejected. Evenif it were established, the mere fact, on which that undertaking relies, that thevarious elements of the single infringement found by the Commission did not havea wholly similar geographical scope does not show that those elements did not havean identical object, namely the regulation of flows of cement between France andGermany. 2432. The participation of Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafargeand BDZ in that single infringement is established, as all those applicantsparticipated in one or other of the concerted practices established by theCommission and also in the 1984 agreement. The fact that Article 3(3)(a) of thecontested decision must be annulled in so far as it finds that Cedest participatedin an infringement of Article 85(1) of the Treaty does not affect that finding. 2433. Consequently, the Commission has demonstrated that the unlawful acts referred toin Article 3(3)(a) whose existence it has duly shown, were sufficiently alike in termsof parties involved and subject-matter to be classified as a single infringement. 2434. When assessing the continuous nature of the infringement in the case of CimentsFrançais, Heidelberger and Lafarge, the Court must have regard to the variousunlawful acts which have been validly attributed to them and the related dates. 2435. Ciments Français participated with Lafarge in a concerted practice whose objectwas to bring pressure to bear on Cedest and which was established on the basis ofa document dating from 23 June 1982 (see paragraphs 2252 to 2281 above). It alsoparticipated with Dyckerhoff in a concerted practice, established on the basis oftwo documents dated 25 January and 17 May 1983 (see paragraphs 2316 to 2328above). From 1984 to 12 August 1987 it participated in the agreement involving thegeneral regulation of cement supplies between France and Germany (seeparagraphs 2332 to 2418 above). The continuous nature of its participation in thesingle infringement is therefore established from 23 June 1982 to 12 August 1987. 2436. Heidelberger participated in a concerted practice with Dyckerhoff, established onthe basis of a document relating to a meeting on 17 November 1982 (seeparagraphs 2282 to 2294 above) and, from 1984 to 12 August 1987, in theagreement involving the general regulation of cement supplies between France andGermany (see paragraphs 2332 to 2418 above). The continuous nature of itsparticipation in the single infringement is therefore established only from 17November 1982 to 12 August 1987. Article 3(3)(a) of the contested decision musttherefore be annulled in so far as it finds that Heidelberger participated in theinfringement from 23 June to 16 November 1982. 2437. Lafarge participated with Ciments Français in a concerted practice whose objectwas to bring pressure to bear on Cedest and which was established on the basis ofa document dated 23 June 1982 (see paragraphs 2252 to 2281 above). It also participated with Dyckerhoff in a concerted practice, established on the basis ofthree documents dated 23 June, 28 July and 2 September 1982 (see paragraphs2295 to 2315 above). From 1984 to 12 August 1987 it participated in the agreementinvolving the general regulation of cement supplies between France and Germany(see paragraphs 2332 to 2418 above). The continuous nature of its participation inthe single infringement is therefore established from 23 June 1982 to 12 August1987. 2438. Dyckerhoff also pleads infringement of Article 190 of the Treaty. However, it doesnot allege any failure to state reasons or any inadequacy of the reasons for thepassages of the contested decision which deal with the Franco-German agreement.Its plea must therefore be rejected. 2439. It follows from all the foregoing that the Commission did not infringe either Article85(1) or Article 190 of the Treaty in finding, to the extent determined inparagraphs 2172 to 2438 above, that Dyckerhoff, SFIC, Ciments Français,Heidelberger, Lafarge and BDZ participated in the infringement referred to inArticle 3(3)(a) of the contested decision. 2440. Ciments Français also states that the Commission discriminated unjustifiably in itstreatment of the objection relating to Spain and Portugal as against that of theobjection relating to France and Germany: in the former case, it found only thetrade association liable, and not the Spanish producers, whereas in the latter caseit found the individual producers, including Ciments Français, liable as well as thenational trade associations. Nor does the fact that the Spanish undertakings didnot directly participate in the negotiations complained of justify that discriminationsince, as the Commission itself has acknowledged, those undertakings wereconcerned by the alleged agreement and certain documents clearly show thesignificant role which they played. The Commission's approach to the members ofthe Spanish trade association in the case of the Hispano-Portuguese complaint isthus at variance with its approach to the indirect members of Cembureau inattributing the Cembureau agreement to them. 2441. That argument must be rejected. Even on the assumption that Ciments Français'sposition is comparable on all points with that of the Spanish producers to which itrefers, it follows from the case-law (Woodpulp II, cited in paragraph 106 above,paragraph 146) that the fact that a trader who was in a position similar to that ofCiments Français was not found by the Commission to have committed anyinfringement cannot in any event constitute a ground for setting aside the findingof an infringement by that applicant, provided that the infringement was properlyestablished. The foregoing grounds have enabled the Court to find that in thecontested decision the Commission has established that both Ciments Français andthe national trade association to which it belongs, namely SFIC, participated in theinfringement referred to in Article 3(3)(a). 2442. SFIC and Ciments Français also dispute, in the context of the argumentsspecifically devoted to the legality of Article 3(3)(a), the existence of a link betweenthat infringement and the Cembureau agreement. That argument will be dealt within the context of the examination of the single nature of the infringement referredto in Article 1 of the contested decision (see paragraphs 4045 to 4048 and 4152 to4154 below). 2443. As well as disputing the existence of a Franco-German agreement, Dyckerhoff,SFIC, Ciments Français, Heidelberger, Lafarge and BDZ also complain of aninfringement of their rights of defence owing to the fact that they were deniedaccess during the administrative procedure to documents in the Commission's filewhich might have proved useful to their defence. Access to the file 2444. Only Lafarge (T-43/95) maintains that it did not have access, prior to the adoptionof the contested decision, to incriminating evidence relating to the infringementfound in Article 3(3)(a). In its observations of 10 February 1997 it maintains thatthe documents from the German Bundeskartellamt file relating to its decision of12 September 1988 (documents 33.126/20481, 20418 to 20443, 20416, 20417, 20492to 20495, 20497 to 20499 and 20384 to 20394) were used by the Commission toestablish an infringement. At the hearing in Case T-43/95 Lafarge stated, in answerto a question put by the Court, that the infringement in question was the cartel onthe cement market in South-West Germany which was referred to in the chaptersof the SO dealing with the German market (chapters 6 and 16). 2445. That argument must be rejected for the reasons stated in paragraph 296 above. 2446. Dyckerhoff, SFIC, Ciments Français, Heidelberger and BDZ have formulated aseries of observations concerning access to exculpatory documents, based on thosewhich they were able to consult following the measures of 2 October 1996 and 18and 19 June 1997 (see paragraphs 164 and 168 above). Lafarge (T-43/95) has madeno particular criticism on that point. At the hearing it also stated, in answer to aquestion put by the Court, that it was not relying on its internal memoranda of 6August 1982 and 7 January 1983 in respect of the infringement of its right of accessto the file. 2447. Dyckerhoff claims that the documents which it was able to consult following themeasures of 2 October 1996 and 18 and 19 June 1997 confirm that the relationsbetween the German and French producers and their national associations, BDZand SFIC, do not give rise to any legal objection. In its observations of 7 February1997 it observes that documents 33.126/14861 to 14874, 14883, 14802 to 14804,19264 and 14801, which consist of the minutes of internal meetings of the Frenchassociation and the annexes thereto, have no connection with the objections made against it but show that Franco-German relations consisted of contacts to whichthere was no objection in law, so that acquaintance with their content might haveproved useful to the defence of its interests in the administrative procedure. In itsobservations of 5 January 1998 it again refers to documents 33.126/15443 to 15453(record of what was said at a meeting between the delegations of German andFrench cement producers on 6 and 7 December 1983), 6044 to 6047 (letter fromSNFCC dated 17 April 1989 communicating information relating to cement importsfrom the Federal German Republic for 1988 and the first two months of 1989) and14623 (table of cement imports from the same Member State for 1989), the contentof which confirms that the German and French cement producers merely engagedin a general exchange of views. 2448. The content of those documents, as analysed by Dyckerhoff, is not of such a natureas to establish that Dyckerhoff's rights of defence were infringed during theadministrative procedure. It sheds no new light on the direct documentary evidencewhich, in so far as determined above, served to establish the objections madeagainst Dyckerhoff in the SO (chapter 2, paragraph 12, and chapter 10, paragraph61(d)) and in the contested decision (recitals 22 and 50, Article 3(3)(a)). Moreover,document 33.126/19264 (document 128 in the French national file), which isannexed to Dyckerhoff's observations of 7 February 1997, does not correspond tothe description of its content given by Dyckerhoff, since it is a list of the referencesof three Greek undertakings and four Spanish undertakings. Similarly, apart fromthe fact that the statistics in documents 33.126/6044 to 6047 confirm theCommission's findings in paragraph 12 in fine of the SO (Chapter 2) and recital 22,paragraph 12, of the contested decision, there is clearly no longer any need to ruleon Dyckerhoff's allegation that its rights of defence were infringed in that regard,since the Court has been able to conclude on the basis of the foregoing assessmentthat Article 3(3)(a) of the contested decision must be annulled in so far as it findsthe existence of an infringement on the basis of the statistics in the table set out inrecital 22, paragraph 12 (see paragraphs 2408 to 2418 above). 2449. Ciments Français claims that the documents which it was able to consult followingthe measures of 2 October 1996 and 18 and 19 June 1997 might have proved usefulto its defence. In its observations of 10 February 1997 it puts forward fourarguments on the basis of the documents which it selected from those consulted. 2450. First, it maintains that the chapters of the SO on Germany would have enabled itto show that the Commission reached opposite conclusions concerning the existenceof a Franco-German agreement and the identity of the parties to that agreement,depending on whether it looked at them from a national or an internationalviewpoint. Ciments Français points out that the chapters of the SO in questionrefer to the existence of three cartels connected with southern Germany but do notmention its name or that of its subsidiary, SZG. In that regard, it emphasises thatit is the only French cement producer concerned by the objection relating to theFranco-German agreement which is not referred to in the German chapters of the SO. It alleges that the passages in the SO contradict the very documents on whichthe Commission relies as against it in connection with the alleged Franco-Germanagreement, more particularly the Vicat memorandum of 22 July 1982 (contesteddecision, recital 22, paragraph 1) and the Lafarge memorandum of 23 June 1982(contested decision, recital 22, paragraph 4). In any event, the mere existence ofa chapter of the SO devoted to Germany and referring to an alleged Franco-German agreement indicates that it was essential that Ciments Français had accessto all the objections and documents relating to that alleged agreement. 2451. First, it should be pointed out that the Commission relied in the SO (chapter 2,paragraph 12, and chapter 10, paragraph 61(d)) and in the contested decision(recitals 22 and 50) on specific documentary evidence to establish the existence ofthe Franco-German agreements and/or concerted practices and Ciments Français'sparticipation in them. The fact that there is no reference to Ciments Français in thechapters of the SO on Germany (chapters 6 and 16) is not of such a kind as toshed new light on the specific documentary evidence which establishes theinfringement referred to in Article 3(3)(a) of the contested decision and CimentsFrançais's participation in those agreements and concerted practices to the extentdetermined above. Furthermore, contrary to what Ciments Français claims, theobjections made specifically against the German producers in the chapters of theSO on Germany are not presented as being closely linked with those relating to theFranco-German agreements and practices. The cartels covering southern Germanyare not confused, on a reading of the chapters of the SO devoted to Germany, withthe Franco-German agreements and practices in which Ciments Français is accusedof having participated. Nor do the passages in the German chapter of the SO onthe Franco-German agreements and practices contain evidence against CimentsFrançais not mentioned in the international chapter of the SO dealing with theFranco-German agreements and practices (see paragraph 114 above). It followsthat the fact that Ciments Français did not have access to the chapters of the SOon Germany (chapters 6 and 16) during the administrative procedure could notharm its defence. 2452. Second, Ciments Français observes that the Bundeskartellamt decision of 1 June1989 concerning three cartels in southern Germany (annex 2 to its observations; pp.176 to 209 of the 'German file) also fail to mention its name or that of itssubsidiary, SZG, and do not refer to the existence of a Franco-German agreementwhose object was to share the Saarland market or an agreement aimed atrestricting Cedest's exports. 2453. That argument must be rejected for the reasons stated in paragraph 2451 above. 2454. Third, Ciments Français submits that a number of documents make it possible toplace the letter dated 22 September 1986 from Mr Laplace, Chairman of SFIC andof Ciments Français, to Mr Schuhmacher, Chairman of BDZ and of Heidelberger(contested decision, recital 22, paragraph 10) in its proper context, namely normal and lawful relations with the French and German associations enjoyedindependently of their members. That letter does not therefore in any way establishthe existence of an agreement on the sharing of the markets in 1984 in whichCiments Français participated. Ciments Français refers to the evidence of MrSteinbach, Chairman of BDZ, to the Commission on 6 March 1990 (document33.126/16386), the letters of 21 November 1989 and 6 February 1990 from SNFCCto BDZ (documents 33.126/16603 to 16608) and the letters of 31 January and 16February 1990 from BDZ to SNFCC (documents 33.126/16601 and 16602). CimentsFrançais further states that the existence of independent and normal relationsbetween the two associations was already suggested by the letter dated 20December 1983 from the German association to the French association, which isin the French file (document 33.126/14762). It also refers, by way of example, todocument 33.126/14894, in the French file, which sets out informationcommunicated to the French association by BDZ for several years, and todocuments 33.126/14814, 14816, 14818 and 14820, to show that BDZ was in thehabit of sending overall statistics to the French association. 2455. It should be observed at the outset that Ciments Français cannot derive anyargument from the letter of 20 December 1983 (document 33.126/14762) in thecontext of its plea alleging infringement of its rights of defence (see paragraph 266above), as it had access to that document during the administrative procedure. 2456. Nor do the other documents on which it relies establish an infringement of its rightsof defence during the administrative procedure. First, they are not susceptible ofshedding new light on the content of the letter of 22 September 1986 (contesteddecision, recital 22, paragraph, 10) with regard to the context in which that letterwas drafted as described in those documents. All the documents in question weredrafted months, or even years, after the letter of 22 September 1986. Next, it isapparent from the SO (Chapter 2, paragraph 12) that the Commission hadobserved that the French and German associations had been exchanging statisticsfor several years. Last, the content of those documents does not shed a differentlight on the documents referred to in the SO (Chapter 2, paragraph 12) and in thecontested decision (recital 22), which show that relations between the French andGerman industries were not limited solely to the innocent exchange of statisticsbetween the two national trade associations, as, according to Ciments Français, thedocuments to which it had access following the measure of organisation ofprocedure of 2 October 1996 establish. It follows that Ciments Français's thirdargument must also be rejected. 2457. Fourth, Ciments Français claims that the documents relating to the Hispano-Portuguese agreement confirm its argument that the fact that it is accused ofhaving allegedly participated in actions to limit exports between France andGermany is incompatible with the treatment of the situation in Spain and Portugaland reveals discrimination in the procedure. It also observes that only the Spanishtrade association is held liable in the contested decision in connection with the Hispano-Portuguese agreement, although in the SO the Commission maintainedthat the Spanish trade association and representatives of certain Spanish producershad participated in meetings aimed at overcoming the problems posed byPortuguese cement exports to Spain. By way of example, it refers to documents33.322/1410 to 1412 and 1400, also referred to in recital 21, paragraph 5, of thecontested decision but which remained inaccessible throughout the administrativeprocedure. 2458. However, Ciments Français cannot claim to establish on that basis that there wasan infringement of its rights of defence during the administrative procedure. It issufficient to observe that, as Ciments Français itself states in its submissions, thecontent of the SO (paragraphs 11 and 61(c)) did not give grounds for theconclusion that the Commission would not find that the Spanish undertakingsreferred to therein had participated in the Hispano-Portuguese agreement. Accessto the documents during the administrative procedure would not therefore haveallowed Ciments Français to persuade the Commission to adopt a different decisionon that point. Its fourth argument must therefore be rejected. 2459. In its observations of 21 November 1997 Ciments Français put forward eightdocuments on the basis of which it sought to establish that it did not participate inthe Franco-German agreements and concerted practices, regarded as a single andcontinuous infringement, referred to in Article 3(3)(a) of the contested decision. Itrefers to a letter from Cedest to Lafarge dated 4 January 1979 describing thedifficulties encountered in the relations between Cedest and Wössingen or betweenCedest and Lafarge (documents 33.126/7505 to 7507); an internal Lafargememorandum dated 30 June 1982 which also describes the deterioration ofrelations between Cedest and Wössingen and between Cedest and Lafarge and theanxiety of the large German cement producers (documents 33.126/7038 to 7040);an internal Lafarge memorandum dated 6 August 1982, which refers to Lafarge'sstrategy in Germany and to the Cedest affair and mentions, in particular, the forcespresent and the proposals for action (documents 33.126/7522 to 7524); an internalLafarge memorandum dated 7 September 1982 which shows that the problemscaused by Cedest's deliveries to Germany still concerned the same protagonists inFrance and in Germany (documents 33.126/6686 and 6687); a telex from Lafargedated 26 October 1982 referring to the commitments given by Cedest to Wössingenin the past (documents 33.126/7110); and an internal Lafarge memorandum dated7 January 1983 referring to discussions between Heidelberger and Dyckerhoff onthe situation in Rheinland-Westphalia and describing a meeting between themselvesand Cedest (documents 33.126/7514 and 7516). Ciments Français concludes fromthe fact that there is no reference to its name in those various documents that itwas not concerned by the situation brought about by Cedest's conduct in Germany.It adds that in a memorandum dated 23 May 1985, probably attributable toLafarge, Ciments Français is always presented as an minor player in the Franco-German area, since Lafarge regards it as a competitor in France but not inGermany (documents 33.126/7408 to 7412). Ciments Français also observes that an internal Heidelberger memorandum dated 22 February 1983 describesHeidelberger's proposals to penetrate France in retaliation against Cedest andshows the intensity of competition between French and German producers at atime when the Commission claims that those producers were combining to sharethe market (document 33.126/3477). Those various documents far from corroboratethe documents presented by the Commission, in particular the Vicat memorandumdated 22 July 1982 (contested decision, recital 22, paragraph 1), which, moreover,comes from an undertaking which, according to the Commission, is not evenconcerned by that situation. Ciments Français also concludes from those documentsthat the Franco-German agreement referred to in the international objections andthe Franco-German cartel centred on Wössingen referred to in the Germannational objections were inextricably linked, since Wössingen's commercial policyin Germany and Cedest's exports to Germany were the cause of the practicesidentified in the international objections. The documents also make it possible tocall in question the link which the Commission has established between the allegedagreement on sharing the Saarland market and the other practices called inquestion under the alleged Franco-German agreements and practices. Theytherefore preclude the existence of a single and continuous infringement. 2460. It should be observed, however, that the documents referred to above are notsusceptible of establishing the existence of an infringement of Ciments Français'srights of defence. The comments which it makes on the basis of those documentsdo not shed new light on the specific documentary evidence which the Commissionused to establish Ciments Français's participation in the concerted practicedesigned to bring pressure to bear on Cedest (SO, chapter 2, paragraph 12;contested decision, recitals 22, paragraph 4, and 50, paragraph 3), the concertedpractice with Dyckerhoff (SO, chapter 2, paragraph 12; contested decision, recitals22, paragraphs 8 and 9, and 50, paragraph 3) and the agreement on the sharing ofthe markets concluded in 1984 (SO, chapter 2, paragraph 12; contested decision,recitals 22, paragraph 10, and 50, paragraph 3). As regards the latter, it should beobserved that its existence follows in particular from the letter dated 22 September1986 which Mr Laplace, Chairman of SFIC and of Ciments Français, sent to MrSchuhmacher, Chairman of BDZ and of Heidelberger (contested decision, recital22, paragraph 10). 2461. Heidelberger claims that the documents which it was able to consult following themeasures of 2 October 1996 and 18 and 19 June 1997 confirm that no Franco-German agreement was established and, in any event, that it did not participate insuch an agreement. In its observations of 10 February 1997 it states at severalpoints that the only conclusion that can be drawn from the documents in theFrench file is that the French undertakings were concerned only with the situationon the French market. It thus refers to documents 33.126/14809, 14810, 14826,14827, 14894, 5626 to 5634, 5637 to 5640, 5641 to 5644, 5645 to 5647, 5651 to 5656,5664 to 5670, 5675, 13529, 5705 to 5708 and 5718, as confirming that the Frenchundertakings were anxious to restrict the volume of imports into their national market but contains no evidence to support the conclusion that there was anagreement between French and German producers and certainly not one betweenHeidelberger and the French producers. 2462. In its observations of 20 February 1998 Heidelberger again claims that documents33.126/4135 and 4383 confirm that the alleged Franco-German agreement did notexist. The first document is an internal Ciments Français memorandum dated 15May 1986, the content of which indicates that Ciments Français was thenconsidering extending its services to the German market; that contradicts theexistence of a Franco-German agreement. Heidelberger emphasises that theCommission relied mainly on the content of a letter which the Chairman ofCiments Français sent to its own Chairman on 22 September 1986 to demonstratethe existence of that alleged agreement (contested decision, recital 50, paragraph3). The second document is also an internal Ciments Français memorandumdescribing its thoughts on the strategy which would allow it to penetrate theEuropean markets; that helps refute the existence of a Cembureau principle ofnon-transhipment to domestic markets and, a fortiori, of a Franco-Germanagreement. 2463. The content of the documents referred to in the previous paragraphs, as analysedby Heidelberger, is not of such a nature as to establish an infringement of its rightsof defence during the administrative procedure. It sheds no fresh light on thespecific documentary evidence on which the Commission relied in the SO (chapter2, paragraph 12, and chapter 10, paragraph 61(d)) and in the contested decision(recitals 22 and 50) in order to establish the existence of the Franco-Germanagreements and concerted practices and Heidelberger's participation therein.Furthermore, according to the information on the List (see paragraph 5 above),documents 33.126/14809 and 14826 were accessible during the administrativeprocedure (see paragraph 250 above). During the administrative procedureHeidelberger could therefore have raised the argument which it now raises beforethe Court. Last, it follows from the internal Ciments Français memorandum dated15 May 1986 (document 33.126/4135) that the form of expansion referred to in thatmemorandum entailed working together with other undertakings active on theEuropean market. As the Commission rightly points out in its observations of 30March 1998, however, apart from the fact that that circumstance sheds no freshlight on the specific documentary evidence used by it, the agreements and theexpansion strategies involving company takeovers are not mutually exclusive. 2464. BDZ claims in its observations of 16 January 1998 that SFIC's statistics reveal theexistence of a significant volume of exports by French producers between 1978 and1988 (documents 33.126/1427, 14630, 14637, 14661 and 14663), which confirms thatthere was no agreement between French and German manufacturers. 2465. However, the documents on which BDZ relies also fail to establish the existenceof an infringement of its rights of defence during the administrative procedure. 2466. Document 33.126/1427 has no relevance to BDZ's argument, since it sets out thegeneral conditions of sale of CCB (see paragraph 1169 above). It must thereforebe disregarded without further examination. 2467. Next, while it is true that documents 33.126/14630 and 14637, extracts from theSNFCC 'Courier d'Information of 10 October 1989, contain data on Frenchexports for 1978 to 1988, for two reasons BDZ cannot draw any particularconclusions from those documents as to the evidential significance of the volumeof French exports to Germany between 1978 and 1988. First, the tables in boththose documents relate to export deliveries of 'all binding materials and clinker,without distinguishing between their destinations outside France, which makes itimpossible to draw any conclusions as to the volume of French exports of cementto Germany. Second, even supposing that those figures related only to Frenchexports of cement to Germany, the 'export deliveries of all binding materialsanalysed in document 33.126/14630 went from 1 198 000 tonnes in 1978 to1 153 000 tonnes in 1988. Similarly, the data relating to clinker exports between1978 and 1988 set out in document 33.126/14637 indicate that those deliveries wentfrom 2 310 000 tonnes in 1978 to 878 000 tonnes in 1988. A mere reading of thosedocuments therefore contradicts the very basis of BDZ's argument. Nor, for tworeasons, can documents 33.126/14661 and 14663, which are extracts from SNFCC'smonthly information bulletin for December 1987, be relied on to support thatargument. First, like documents 33.126/14630 and 14637, documents 33.126/14661and 14663 fail to state the destinations of the exports which they record. Second,the data set out in documents 33.126/14661 and 14663 only contain a comparisonbetween the years 1986 and 1987. In any event, the Court has already found on thebasis of direct documentary evidence that the Commission has shown that BDZparticipated in the infringement referred to in Article 3(3)(a). 2468. It follows from the foregoing that the rights of defence of Dyckerhoff, SFIC,Ciments Français, Heidelberger, Lafarge and BDZ in relation to their participationin the infringement referred to in Article 3(3)(a) of the contested decision, unlikethose of Cedest, were not affected by the fact that they did not have access to thedocuments on which they have relied during the present procedure (see paragraphs2284 to 2289 above). Conclusion 2469. To conclude, Article 3(3)(a) of the contested decision will be annulled:  as regards Cedest, in its entirety;  as regards Dyckerhoff, Ciments Français and Lafarge, in so far as it findsthat they participated in an agreement on sharing the Saarland market andin an infringement of Article 85(1) of the Treaty after 12 August 1987;  as regards SFIC, in so far as it finds that it participated in an agreement onthe sharing of the Saarland market, in a concerted practice with BDZbefore 1984, in a concerted practice aimed at exerting pressure on Cedestand in an infringement of Article 85(1) of the Treaty after 12 August 1987;  as regards Heidelberger, in so far as it finds that it participated in anagreement on the sharing of the Saarland market and in an infringement ofArticle 85(1) of the Treaty between 23 June and 16 November 1982 andafter 12 August 1987;  as regards BDZ, in so far as it finds that it participated in an agreement onthe sharing of the Saarland market, in a concerted practice with SFICbefore 1984 and in an infringement of Article 85(1) of the Treaty after12 August 1987. 2470. The remaining pleas which have been considered are rejected. VIII  Pleas alleging infringements of Article 85(1) of the Treaty and of the rights ofthe defence in that the Commission finds the existence of a concerted practice betweenSFIC and BDZ contrary to Article 85(1) of the Treaty (contested decision, Article3(3)(b)) Concerted practice between SFIC and BDZ 2471. Although SFIC (T-36/95) and BDZ (T-48/95) do not deny having exchangedstatistics on the volume of exports between France and Germany, they dispute theanti-competitive nature of those exchanges and, accordingly, the finding that theyconstituted an infringement. They rely on the fact that those exchanges took placeprior to the conduct referred to in Article 3(3)(a) of the contested decision, on thereal objective of such exchanges, on the fact that the statistics exchanged werelawful in the light of the Commission's previous decisions and the Court's case-law,and also on the fact that they did not transmit more precise, individualisedinformation or information on French supplies to Germany broken down accordingto the Land of destination. 2472. Before assessing the merits of those arguments, it is appropriate to recall theinfringement referred to in Article 3(3)(b) of the contested decision. 2473. In that provision the Commission states that: '[SFIC and BDZ] infringed theprovisions of Article 85(1) of the EC Treaty from 1 January 1985 to 30 September1989 by participating in a concerted practice involving the exchange of informationdesigned to monitor compliance with the quantitative restrictions on exportsbetween France and Germany and to monitor the destination of such exports interms of the various German Länder. 2474. In the recitals of the contested decision the Commission deals with the infringementin question in The Facts, in recital 22, paragraphs 12 and 18, and in the LegalAssessment, in recital 50, paragraph 5. 2475. In recital 22, paragraph 12, the Commission states: 'SFIC and BDZ have for several years exchanged monthly data on French exportsto Germany and German exports to France. The stated aim of the exchange is tobe able to compare the data in the possession of the two associations with thosepublished by the national statistical institutes. Although the data exchanged areaggregate and do not contain any indication of destination by region and althoughthe data published by the various statistical institutes and those published by theStatistisches Bundesamt do not indicate destination by region, BDZ is able, eachquarter, to establish that imports from various countries are intended for specificLänder and to publish those results. In particular, BDZ is able to state that Frenchcement imports have always been intended for Rheinland-Pfalz, Saarland andBaden-Württemberg, with tonnages for each Land, as can be seen from the figuresavailable at the time of verification for the last five years: [table]. This system of data exchange is a means of monitoring the implementation of theagreement on regulating sales between French and German enterprises (seeparagraph 10 above). A comparison of these data shows that the gap existing since 1984 betweenFrench and German deliveries (letter of 22 September 1986 referred to above inparagraph 10) was reduced. 2476. The data in the table presented by the Commission in recital 22, paragraph 12, ofthe contested decision are, first, the annual volume of French exports to Germanyfor the Länder of Rheinland-Pfalz, Saarland and Baden-Württemberg, and the totalof those exports, and, second, the annual volume of German exports to France. 2477. In recital 22, paragraph 18, of the contested decision the Commission answers thearguments put forward by BDZ to justify, on the basis of mathematical estimates,the existence of data on French exports for each Land. 2478. In recital 50, paragraph 5, the Commission makes the following analysis: 'The exchange of statistical information between SFIC and BDZ constitute, on thebasis of the data available (see paragraph 12 of recital 22), from 1 January 1985to 30 September 1989, a concerted practice restricting competition within themeaning of Article 85(1). The exchange of information must be seen in the contextof the market-sharing agreements mentioned above, the aim being to allow the twoassociations concerned to monitor compliance with the quantitative restrictions onexports and the Länder for which they were intended (see paragraph 12 of recital 22). As stated in paragraphs 12 and 18 of recital 22, determining which Länderexports were intended for cannot be properly explained in any other terms thanconcerted action based on the exchange of data. This practice creates an artificialmarket situation in which abnormal transparency and stability in trade betweenMember States tend to rigidify the behaviour of economic agents and to eliminatethe risks inherent in competition. 2479. It is apparent from the words used by the Commission in the contested decision,therefore, that it took the view that the concerted practice in question was ancillaryto the infringement referred to in Article 3(3)(a) of the contested decision. Inrecital 22, paragraph 12, second subparagraph, the Commission emphasised that'[t]his system of data exchange is a means of monitoring the implementation of theagreement on regulating sales between French and German enterprises and refersto paragraph 10 of that recital. In recital 50, paragraph 5, it again states, withparticular reference to recital 22, paragraph 12, that '[t]he exchange of informationmust be seen in the context of the market-sharing agreements mentioned above. 2480. It is also apparent from the wording of the contested decision that the Commissionconsiders that the concerted practice referred to in Article 3(3)(b) has a twofoldobject: first, to monitor compliance with the quantitative restrictions on exportsbetween France and Germany and, second, to monitor the destination of suchexports in terms of the various German Länder. The German version of thecontested decision brings out even more the twofold object which the Commissionattributes to the concerted practice. Article 3(3)(b) reads: '[SFIC] und [BDZ]haben vom 1. Januar 1985 bis 30. September 1988 gegen Artikel 85 Absatz 1 EG-Vertrag verstoßen, indem sie an einer abgestimmten Verhaltensweise betreffendden Austausch von Informationen zwecks Kontrolle der Einhaltung dermengenmäßigen Ausfuhrbegrenzungen zwischen Frankreich und Deutschland sowiezur Kontrolle der für die verschiedenen Bundesländer bestimmten Leiferungenteilgonommen haben. The Commission cannot therefore claim, as it did at thehearing in Case T-48/95, that it established the breakdown of French exports interms of the various Länder in response to an argument developed by theapplicants concerned during the administrative procedure. It is sufficient to pointout that the Commission already referred in the SO (paragraph 12, p. 29, andparagraph 61(d), pp. 174 and 175) to that twofold object of the infringementreferred to in Article 3(3)(b) of the contested decision. 2481. The Commission therefore considers, as it confirmed in its submissions in Case T-48/95, that the exchanges of overall statistics in themselves made it possible tomonitor the implementation of the agreement involving the general regulation ofsales between France and Germany, even though such exchanges of overall databetween trade associations, taken in isolation, are not unlawful. That positioncorroborates the first object which the Commission attributes in the contesteddecision to the infringement referred to in Article 3(3)(b). 2482. First, in the context of Franco-German relations at the material time, in which bothSFIC and BDZ had an active part (see paragraphs 2236 to 2251 and 2332 to 2418above), the exchanges of official statistics enabled SFIC and BDZ to monitorcompliance with the agreement concluded in 1984. In that regard, it is sufficient topoint out that when the Chairman of SFIC, Mr Laplace, sent his letter of 22September 1986 (contested decision, recital 22, paragraph 10; documents33.126/3574 to 3576) to the Chairman of BDZ, Mr Schuhmacher, the opposingparties were discussing the gap between French deliveries to Germany and Germandeliveries to France with a view to renewing the agreement concluded in 1984 (seeparagraph 2344 above). The Commission was therefore able to take the view thatthe statistics exchanged were used to monitor the quantitative restrictions whichhad been adopted and to envisage possible improvements for the future, in thecontext of the discussions on the renewal of the agreement concluded in 1984. 2483. In any event, the argument derived from the fact that those exchanges took placebefore the conduct referred to in Article 3(3)(a) of the contested decision must berejected. A practice between national associations may, over the course of itsexistence, play a new role, separate from the role or roles which it previously had.The mere fact that a particular practice predated other conduct is therefore not asufficient criterion on which to establish that it is lawful, having regard to all theroles which the practice may be called upon to serve. 2484. Next, the anti-competitive nature of a concerted practice whose object is to monitoran agreement to regulate cement deliveries between two Member States is notopen to dispute. Subject to proof to the contrary, which it was for the twoassociations to adduce (see Commission v Anic, cited in paragraph 270 above,paragraph 121, and Hüls v Commission, cited in paragraph 155 above, paragraph162), it must be held that the exchanges of information between them influencedtheir conduct and that of their members concerned by trade between France andGermany. 2485. Last, although the first object of the concerted practice between SFIC and BDZreferred to in Article 3(3)(b) must be regarded as established, as SFIC and BDZhave not disputed that the exchanges did actually take place, it should be pointedout that, having regard to the relationship which the Commission has establishedbetween the conduct referred to in Article 3(3)(b) and that referred to in Article3(3)(a) (see paragraph 2479 above), the exchanges of information between SFICand BDZ no longer constituted an infringement after the date on which theinfringement referred to in Article 3(3)(a) is deemed to have ceased. Accordingly,Article 3(3)(b) of the contested decision must also be annulled in so far as itestablishes an infringement of Article 85(1) of the Treaty after 12 August 1987 (seeparagraph 2418 above). 2486. As regards the second object of the concerted practice consisting in monitoring thedestination of French exports to Germany in terms of Länder, it should be observed that the Commission has not presented any document to establish that thedata on French exports for each Land found at BDZ's premises (documents33.126/16709, 16702, 16694, 16686, 16609, 16706, 16698 and 16683) were takendirectly from the data transmitted by SFIC. The Commission in fact consideredthat, having regard to the quarterly exchanges of overall statistics between SFICand BDZ, the existence of precise data on French exports to individual Ländercould be explained only by concerted action between the two associationsconcerned. 2487. However, such reasoning does not establish with certainty the intervention of SFICor concerted action between it and BDZ. Furthermore, BDZ explained both duringthe administrative procedure (contested decision, recital 22, paragraph 18, secondand third subparagraphs) and in the present proceedings, that the statistics derivefrom estimates which it prepared on the basis of official statistics, the location ofFrench plants and transport costs, and that they were later compared with dataprovided by the various Länder. The arguments which the Commission putsforward in the contested decision (recital 22, paragraph 18, fourth, fifth and sixthsubparagraphs) and in its submissions to refute those explanations do not deprivethem of all relevance. 2488. Furthermore, SFIC stated at the hearing in Case T-36/95, without beingcontradicted by the Commission on that point, that the overall statistics on Frenchimports to Germany which it provided to BDZ do not correspond to those whichBDZ arrived at in its own calculations on the basis of its estimates broken downinto Länder. 2489. The Commission could not therefore accuse SFIC and BDZ of having colluded inorder to monitor the destination in terms of Länder of French exports to Germany. 2490. Accordingly, Article 3(3)(b) of the contested decision must be annulled in so far asit finds the existence, from 1 January 1985 to 12 August 1987, of a concertedpractice between SFIC and BDZ designed to monitor the destination in terms ofLänder of French exports to Germany. 2491. On the other hand, in spite of the illegal aspects of Article 3(3)(b) of the contesteddecision identified in paragraphs 2485 and 2490 above, and contrary to theallegations made by BDZ, the Commission did not infringe Article 85(1) of theTreaty by stating that '[t]his practice creates an artificial market situation in whichabnormal transparency and stability in trade between Member States tend torigidify the behaviour of economic agents and to eliminate the risks inherent incompetition (contested decision, recital 50, paragraph 5, in fine). 2492. As well as disputing the existence of the concerted practice found in Article 3(3)(b)of the contested decision, SFIC and BDZ complain of an infringement of theirrights of defence in so far as they were denied access during the administrative procedure to documents in the Commission's file which might have proved usefulto their defence. Access to the file 2493. SFIC complains that the Commission did not allow it to express a view during theadministrative procedure on the statistical model which had been sent to it by BDZon 4 May 1993 and which it mentions in recital 22, paragraph 18, of the contesteddecision (see paragraph 375 above). However, Article 3(3)(b) will be annulled inso far as it finds the existence of a concerted practice between SFIC and BDZ tomonitor the destination of exports from France to Germany in terms of the variousGerman Länder (see paragraph 2490 above). Accordingly, SFIC's argument hasbecome devoid of purpose. 2494. As regards the incriminating evidence, SFIC and BDZ made a series ofobservations based on the documents which they were able to consult following themeasures of 2 October 1996 and 18 and 19 June 1997. 2495. In its observations of 10 February 1997 and 7 January 1998 SFIC claims that all thedocuments in the German file were essential to its defence, since it would haveenabled it to establish that BDZ had no information at its disposal which wouldhave allowed it to put a figure on French imports for each Land in the statisticsdistributed to its members. In support of its argument, it refers more particularlyto certain documents to which it considers it should have had access. 2496. The Court finds, however, that having regard to what was held in relation to thelegality of Article 3(3)(b) (see paragraphs 2486 to 2490 above), that argument hasbecome devoid of purpose, since the Commission has not established that SFIC andBDZ exchanged information allowing them to monitor the breakdown of Frenchexports between the various German Länder. 2497. In its observations of 10 February 1997 BDZ observes that the documents whichit was able to consult following the measure of 2 October 1996 make no referenceto any exchange of information other than that of insignificant overall figures.There is nothing in the documents from the French file to indicate that figuresbreaking down French imports between the various Länder were communicated toit. BDZ relies on the letter which its Chairman sent to the Chairman of SFIC on20 December 1983 (document 33.126/14762) and to minutes of various meetingsbetween the two associations and between their members. 2498. It should be pointed out that BDZ cannot derive any argument from its Chairman'sletter of 20 December 1983 in the context of the plea alleging infringement of itsrights of defence during the administrative procedure (see paragraph 266 above). 2499. As regards the other documents relied on, it must again be found that, havingregard to what was held in relation to the legality of Article 3(3)(b) (see paragraphs2486 to 2490 above), BDZ's argument has become devoid of purpose, since theCommission has not established that SFIC and BDZ exchanged informationallowing them to monitor the breakdown of French exports between the variousGerman Länder. 2500. In its observations of 16 January 1998 BDZ again claims that documents33.126/14809 to 14827 show that the sole object of the exchanges of overallstatistics between the two national associations was to verify the overall importfigures provided by the French customs, which were available to everyone. 2501. That argument does not demonstrate that there has been an infringement of itsrights of defence. The content of the documents in question does not shed adifferent light on the content of the documents on which the Commission relied infinding that BDZ participated in a concerted practice with SFIC designed tomonitor compliance with the quantitative restrictions on exports between Franceand Germany. The mere fact that the object of the exchanges of data betweenSFIC and BDZ was to check the figures provided by the French customs does notpreclude the same data being used to monitor the quantitative restrictions agreedbetween the French and German industries. 2502. It follows from the foregoing that the rights of defence of SFIC and BDZconcerning their participation in the infringement referred to in Article 3(3)(b) ofthe contested decision, as found to have been properly established after the aboveassessment (see paragraphs 2471 to 2491 above), were not affected by the lack ofaccess to the documents on which they relied in the present proceedings. 2503. It follows, first, that Article 3(3)(b) of the contested decision must be annulled, inso far as it finds that the exchange of information between SFIC and BDZ includedinformation on French exports to Germany according to the Land of destination.That conclusion does not preclude the finding that that exchange of informationwas designed to monitor compliance with the quantitative restrictions on exportsbetween France and Germany. Second, Article 3(3)(b) of the contested decisionmust be annulled in so far as it finds an infringement of Article 85(1) of the Treatyafter 12 August 1987. The remainder of the pleas which have been considered mustbe rejected.                                                                     IX  Pleas alleging infringement of Articles 85(1) and 190 of the Treaty, of theprinciple of equal treatment, of the rights of the defence, and abuse of process andmisuse of powers in that the Commission finds that there were agreements andconcerted practices within the framework of the ETF contrary to Article 85(1) of theTreaty and that the various applicants participated in them (contested decision, Article4(1), (2), (3)(a) and (b) and (4)(a) to (h)) Preliminary observations 2504. At the end of 1985 and beginning of 1986 the Greek cement producers, which hadsignificantly increased their production capacities between the second half of the1970s and the start of the 1980s to meet the strong demand from the constructionand technical equipment markets in the Middle East, turned towards Europe in anattempt to solve overcapacity problems linked to the collapse, towards the end of1985, of those markets in the Middle East (contested decision, recital 24, paragraph1). 2505. In Article 4 of the contested decision, the Commission finds a series ofinfringements of Article 85(1) of the Treaty, following the emergence of the 'Greekproblem, namely:  'the agreement on the setting-up of the Cembureau Task Force orEuropean Task Force (Article 4(1));  'an agreement on the setting-up of the Joint Trading Company, IntercimentSA, having as its purpose the carrying-out of the persuasive and dissuasivemeasures against those threatening the stability of the member countries'markets (Article 4(2));  'concerted practices designed to withdraw Calcestruzzi as a customer fromthe Greek producers, and from Titan in particular (Article 4(3)(a));  'an agreement relating to the contracts and agreements signed on 3 and 15April 1987 having as their aim the prevention of imports of Greek cementby Calcestruzzi (Article 4(3)(b));  'agreements and concerted practices designed to deflect the Greekproduction surplus and to curb Greek cement imports into the MemberStates (Article 4(4)(a) to (h)). 2506. The Commission claims that those various agreements and practices arose from asingle and continuous agreement intended to eliminate imports into the MemberStates of cement from Greece (contested decision, recital 53, in particularparagraphs 2, 3, 9 and 14). 2507. In the operative part of the contested decision, however, the Commission does notfind that that single and continuous agreement existed as such. Thus, Article 4(1)refers to 'the agreement on the setting-up of the Cembureau Task Force orEuropean Task Force, and not 'the single and continuous agreement relating tothe setting-up of the Cembureau Task Force or ETF and the various measuresadopted at the meetings to eliminate imports into Western Europe and, in particular, to prevent imports of Greek cement into the Member States (contesteddecision, recital 53, point 9). 2508. The Commission confirmed this interpretation when replying to the writtenquestion raised by the Court of First Instance between 15 May and 15 June 1998concerning the cases relating to the undertakings and associations of undertakingsreferred to in Article 4(1) of the contested decision: 'In the Commission's view, Article 4(1) does indeed relate only to the setting -upor organisation of the ETF (bearing in mind that participation in the setting-up ofan organisation is tantamount to agreement to the proposed activities for thatorganisation). 2509. In Article 4 of the contested decision, the Commission in actual fact dealsseparately with the various elements alleged to constitute the single and continuousagreement in relation to the 'Cembureau Task Force or European Task Force,not mentioning the same addressees each time, and finds a different duration foreach of them. 2510. In its rejoinder in Case T-43/95 (p. 41), it explains: 'Careful reading of Article 4 of the decision shows that the various paragraphs ofthat article do not all involve the same undertakings, or the same dates, and theyare therefore not mere empty repetition. The reason is that the Commissionpointed out, first, the actual setting-up of the ETF (referred to in paragraph 1) and,second, various practical measures implemented on the recommendation of theETF, but not all the protagonists were involved in those various measures at thesame time. 2511. In its reply to the Court's written question referred to in paragraph 2508, theCommission adds: 'In the operative part of the decision the Commission sought to distinguishbetween the setting-up or actual existence of the ETF (Article 4(1)), which is aninfringement quite independently of any implementing measures, and the variousmeasures adopted and applied within the framework of the ETF (Article 4(2) to(4)). 2512. In order to assess the legality of Article 4 of the contested decision, the Court mustascertain whether the Commission was right to decide that the agreements andconcerted practices found in that article did in fact exist. Furthermore, it will benecessary to consider the submissions by which some applicants dispute theCommission's classification, in recital 53 of the contested decision, of those variousagreements and practices as 'a single and continuous agreement. The agreement relating to the setting-up of the ETF (contested decision, Article 4(1)) 2513. According to Article 4(1) of the contested decision, Cembureau, Holderbank, BlueCircle, Oficemen, Asland, Uniland, Hispacement, SFIC, Lafarge, Ciments Français,BDZ, Dyckerhoff, Heidelberger, CBR, Aker, EUROC, Aalborg, Irish Cement,Italcementi, Unicem and Cementir 'infringed the provisions of Article 85(1) of theEC Treaty as from 28 May 1986 by participating in the agreement on the setting-upof the Cembureau Task Force or European Task Force. 2514. Except for Hispacement, which has not brought an action for annulment of thecontested decision, all the undertakings and associations of undertakings mentionedin Article 4(1) put forward arguments for annulment of that provision. Two of theapplicants allege lack of consistency between the SO and the contested decision.A series of arguments seeks to show that the agreement on the setting-up of theETF was not an infringement. Most of the applicants deny any unlawfulinvolvement in that agreement. Finally, some of them dispute the duration of theinfringement or, at least the duration of their participation in it. The applicantsconcerned will be identified when those various arguments are considered. 2515. Furthermore, Cembureau, Dyckerhoff, SFIC, Ciments Français, Heidelberger,Lafarge, Aalborg, BDZ, Unicem, Asland, Uniland, Oficemen, Irish Cement,Italcementi, Holderbank, Aker, EUROC, Cementir und Blue Circle allege that theCommission, in finding the infringement referred to in Article 4(1) of the contesteddecision, infringed their rights of defence by not making available to them duringthe administrative procedure the whole of the SO and the investigation file, thusdepriving them of allegedly exculpatory evidence. 2516. Halkis (T-104/95) puts forward a series of arguments seeking to deny anyinvolvement in the infringements described in Article 4, in particular in Article 4(1)of the contested decision. Inasmuch as those arguments are adduced by anapplicant who has not been charged with those infringements, they must bedismissed at this point. 2517. Following the measure of 18 and 19 June 1997, Vicat (T-37/95) lodged a series ofdocuments which, it claims, might have been useful in its defence during theadministrative procedure in order to establish that it was absolutely not involved,whether directly or indirectly  through the SNIC  in the ETF and its unlawfulactivities. For the reasons set out above at paragraph 255, that line of argumentmust also be rejected. A  Consistency between the SO and the contested decision 2518. Aalborg asserts that the SO presented the facts as showing, on the one hand, a setof agreements or concerted practices on the circulation of price information from an unspecified date in 1983 and, on the other hand, continuous agreements on thehome market rule and/or concerted practices 'resulting originally from andconditioned by the laying down of and compliance with the home market rulewhich had existed for dozens of years (SO, point 61). In the contested decision, theCommission altered that characterisation of the facts and referred instead, inparticular, to an agreement concerning the ETF, concluded on 28 May 1986. 2519. The Court points out, however, that the Commission devoted the second sectionof Chapter 2 of the SO (points 16 to 20) to setting out the facts relating to the'Cembureau Task Force or European Task Force. 2520. Point 17 describes the circumstances relating in particular to the 'setting-up andactivity of Cembureau Task Force or European Task Force. 2521. The Commission began by mentioning the meeting held in Rome on 28 May 1986: '(a) Meeting in Rome. On 28 May 1986, the representatives of Blue Circle, CimentsFrançais and Lafarge, Holderbank, Heidelberger and Dyckerhoff, Italcementi,Asland and Cembureau held a meeting in Rome to examine and draw up defensivemeasures (the stick) and supportive measures (the carrot) vis-à-vis the Greekproducers who were exporting cement to the European countries. The participantsdecided to set up a working group comprising the representatives of the UnitedKingdom, Spanish, French and Italian industries assisted by Cembureau. 2522. In paragraph 61 of the SO, the Commission stated: 'The most flagrant and most serious application of the home market rule occurredin connection with the so-called Greek problem (see Section 2, points 16 to 20).Cembureau and all the other members mobilised in order to attack the memberwhich had dared to infringe the home market rule: a Task Force was set up .... 2523. Point 61(h), which is the legal assessment of the facts set out concerning the'Cembureau Task Force or European Task Force, states that the agreements andpractices entered into within the ETF, including the agreement setting up the latter,must be viewed as the implementation of a single plan established by Cembureauand a series of undertakings and associations of undertakings, including Aalborg,against the Greek producers for having infringed the home market rule. Thoseagreements and practices were considered to be 'clear infringements of Article85(1). They were found to exist 'as of 1986. 2524. The infringement found in Article 4(1) of the contested decision to have beencommitted by, inter alia, Aalborg in connection with the agreement setting up theETF, was therefore clearly referred to in the SO, both in the summary of facts andin the legal assessment. 2525. Aalborg's submissions must therefore be rejected. 2526. Unicem claims that, in the SO, the ETF was referred to solely in connection withthe disagreement with the Greek producers on account of their infringement of thehome market rule. By contrast, in the contested decision, the Commissionconsidered that the object of the ETF was wider than the attempt to preventimports from Greece. 2527. In this connection, it is true that, in the contested decision, the Commission finds(recital 53, paragraph 7) that 'ETF's purpose ... is thus general and not simplyconfined to the problem of Greek exports, which it did not mention expressly inthe part of the SO concerning the ETF. 2528. None the less, the document on which the Commission relies in this part of thecontested decision in concluding that the objective pursued by the ETF was generalin nature, is the record of the meeting of the ETF held on 19 August 1986 inGeneva (contested decision, recital 25, paragraph 15). That document, appendedby Aker and EUROC to their reply to the SO, was sent by letter of 9 July 1992 bythe Commission to all the relevant addressees of the SO, including Unicem, whichwere requested to make known any comments on that document (contesteddecision, recital 2, paragraph 3). Unicem therefore had the opportunity, during theadministrative procedure, to put forward its comments concerning the definition ofthe objective pursued by the ETF as it appeared in that document. 2529. Its argument must therefore be rejected. B  Unlawful nature of the agreement setting up the ETF 2530. In recital 53, paragraph 7, of the contested decision, the Commission explains whyit was prompted to consider the agreement setting up the ETF to be contrary toArticle 85(1) of the Treaty: 'The record of the ETF meeting held in Geneva on 19 August 1986 (see paragraph15 of recital 25) makes it clear what the sole objective pursued is: ETF's purposeis to evaluate measures to eliminate imports to Western Europe, presently from Greece.ETF shall recommend measures to the Head Delegates. The aim is thus general andnot simply confined to the problem of Greek exports: it thus falls wholly within theframework of the Cembureau agreement on non-transhipment to home markets. 2531. The applicants concerned put forward, in essence, nine arguments disputing theunlawful nature of the agreement setting up the ETF. 2532. First, CBR, Dyckerhoff, SFIC, Ciments Français, Lafarge, Italcementi, Holderbank,Aker, EUROC and Blue Circle claim that ETF's central function was lawful, since it was to make the national and European authorities aware of the problemscaused to the Western European cement industry by cheap imports from Greece.Uniland (T-58/95) alleges that, in the contested decision, the Commission did notmention the effort by some members of the European cement industry to holdlawful dialogue with Community authorities. 2533. In support of its submissions, CBR refers to document 33.126/18761, in whichHolderbank, replying to a request for information addressed to it by theCommission in 1990 concerning the ETF, explained that the essential role of thelatter was to support the intensive lobbying activities of the European cementindustry, between the end of summer 1986 and beginning of 1987, with a view topersuading the European authorities to adopt measures against the anti-competitiveconduct of the Hellenic Republic and its cement producers. Uniland, Italcementiand Holderbank refer to the meeting which the representatives of the Europeancement industry had with Mr Sutherland, a member of the Commission, inNovember 1986, in order to inform him and, through him, the College ofCommissioners, of the concern to which the scheme of State aid granted to Greekproducers gave rise. In addition, Holderbank produced various documentsillustrating the political steps taken to that end by the European cement producers,in particular in relation to members of the European Parliament and Members ofthe Commission. Italcementi complains that the Commission referred exclusively,in its assessment of the lawfulness of ETF's objectives, to the actions described inthe document mentioned in paragraphs 3 to 7 of recital 25 of the contesteddecision, whereas that document was finalised at a meeting held earlier than thatof 9 June 1986, during which the formal decision to set up the ETF was adopted(contested decision, recital 25, paragraphs 8 and 10). 2534. To illustrate the actual result of those political actions, Uniland and Italcementiclaim that it was through those actions that the Commission reversed its 1985decision in which it had authorised Greece to grant export aid to its producers(Commission Decision 86/614/EEC of 16 December 1986 amending CommissionDecision 85/594/EEC authorising Greece to take certain safeguard measures underArticle 108(3) of the EEC Treaty (OJ 1986 L 357, p. 28)). Holderbank refers to thequestions asked of the Commission by certain members of the EuropeanParliament concerning the 'Greek problem and the replies given in March 1987and May 1988 by Mr Sutherland, a member of the Commission. 2535. Aker and EUROC further allege that the exchange of information at ETF levelwas also intended to evaluate the extent to which risks of imports into WesternEurope of cement from Greece had or had not been reduced by the Greekproducers' opening up alternative outlets in non-member countries. 2536. The Court finds that several documents referred to in the presentation of the factsrelating to the setting-up and activities of the ETF (contested decision, recital 25)do in fact show that, in order to settle the Greek problem, the European cement producers took action to make the national and Community authorities aware ofthe problem. 2537. However, the report of the ETF meeting held in Geneva on 19 August 1986,referred to by the Commission in recital 53, paragraph 7, of the contested decision,defines the ETF's objective as follows: 'ETF's purpose is to evaluate measures to eliminate imports to Western Europe,presently from Greece. ETF shall recommend measures to the Head Delegates. 2538. That objective is confirmed by the minutes of the meeting of ETF Head Delegatesand representatives in Baden-Baden on 9 September 1986 (contested decision,recital 25, paragraph 24: document 33.126/18858): 'The ETF was set up in order to examine possible dissuasive and persuasivemeasures to counter the arrival of cheap cement on European markets (primarilyagainst Greek imports into the United Kingdom) and to submit recommendationsto the Head Delegates. 2539. The allusion, in that second extract, to 'dissuasive and 'persuasive measuresnecessarily refers back to the paper entitled 'Collective response to problemsposed by destabilising cement industry, which was finalised by a working groupconsisting of several representatives of the European cement industry, from 3 to5 June 1986 in Zurich and then in Céligny (contested decision, recital 25,paragraphs 2 to 7; documents 33.126/18772 to 18779, 'the Zurich/Célignydocument), and which, in substance, contains the following explanationsconcerning the measures involved: 'Dissuasive measures (Stick Actions)  Defence of European domestic markets by various means, e.g.administrative obstacles, imposition of quality standards, action byAssociations, penalising of customers purchasing imported cement.  Attacking the export markets of producers destabilising the market bytaking the place of Greek suppliers in various countries (Algeria, UnitedStates, West Africa, Egypt and Saudi Arabia) or by making Greek exportsunprofitable.  Boycott of shipping companies controlled by the producers destabilising themarket;  Studying the possibility of exporting cement to Greece and, if the cost is toohigh, studying the possibility of guerilla measures and of exporting otherproducts manufactured by the subsidiaries of European cement producers.  Studying the situation of floating silos and intermediaries.  Seeking the assistance of international banks to convince the producersdestabilizing the market, intermediaries and shipowners to cooperate. Persuasive measures (Carrot Actions) Purchase of available tonnage from producers destabilising the market and itschannelling towards the United States (Blue Circle, Holderbank, Lafarge,Cementa/Norcem and others could do this), West Africa (France could beresponsible for this), other countries (complex solutions are envisaged ifnecessary). 2540. In the light of the foregoing, the Commission was justified in considering that theobject of the ETF was 'the prevention of trade in cement in the Community andthe partitioning of national markets to the benefit of local producers and thedetriment of consumers (contested decision, recital 53, paragraph 14). TheCommission was therefore fully entitled to conclude (same paragraph) that such arestriction of competition constituted 'a clear infringement of Article 85(1) of theTreaty. 2541. The arguments of the applicants referred to at paragraph 2532 above musttherefore be rejected. 2542. Holderbank claims that the ETF discussions took place in the presence of MEPs,government representatives and Commission agents. In this connection, it mentionsthe documentation forwarded to the members of the European Parliamentallegedly present at the meeting of 9 September 1986 in Baden-Baden, and also thepress release drawn up by the president of the parliamentary committee responsiblefor economic, monetary and industrial policy (Annexes 11d and 11e to itsapplication). 2543. It must, however, be pointed out that the documents submitted by Holderbankindicate at most that representatives of the European cement industry metmembers of the European Parliament in Strasbourg on 10 September 1986, tomake them conscious of the problems connected with imports of cement fromGreece into European markets. They do not support the claim that the meetingsof or concerning the ETF, described in recital 25 of the contested decision  inparticular the meeting of the Head Delegates and representatives of the ETF inBaden-Baden on 9 September 1986 (contested decision, recital 25, paragraphs 22to 33)  were held in the presence of representatives of the Community authorities. 2544. In any event, Holderbank's allegations cannot obscure the documents analysed atparagraphs 2537 to 2540 above, which show that the ETF was given an obviouslyanti-competitive objective, namely, to examine, with a view to submittingrecommendations to the Head Delegates, dissuasive and persuasive measures likelyto eliminate cheap imports of cement into Western European markets. 2545. It follows that Holderbank's argument must be rejected. 2546. Second, Blue Circle claims that the agreement setting up the ETF was a purelypreparatory act, with no anti-competitive object. The common intention of thefounder members of the ETF never went beyond setting it up. 2547. However, it must once again be held that those allegations are plainly contradictedby the bundle of documents considered in paragraphs 2537 to 2540 above, whichshow that the ETF was assigned an anti-competitive object from the beginning. 2548. Blue Circle also states that there never was an anti-competitive plan common tothe members of the ETF. It claims that the Commission erred in law in contending,in recital 53, paragraph 5, in the preamble to the contested decision, that it was notnecessary to show that there was a common intention of the parties to conductthemselves on the market in an anti-competitive manner in order to prove theexistence of an agreement or practice contrary to Article 85(1) of the Treaty. 2549. The Court points out, however, that the contentions which Blue Circle imputes tothe Commission do not appear in recital 53, paragraph 5, in the preamble to thecontested decision. At that point in the recitals, the Commission merely states, onthe basis of the judgment in Case T-2/89 Petrofina v Commission cited in paragraph2260 above, paragraph 210, that 'where a restrictive agreement is complex incharacter, it is not necessary for all the undertakings to express their formal assentto a particular course of action adopted by the others, since it is sufficient for someof them to have indicated their general support and conducted themselvesaccordingly. 2550. In any event, and without prejudice to the assessment to be made in paragraphs2592 to 2782 below as to the merits of the Commission's decision finding that thevarious undertakings and associations of undertakings referred to in Article 4(1) ofthe contested decision took part in the agreement setting up the ETF, it is alreadyclear from the analysis in paragraphs 2537 to 2540 above that the formation of theETF was prompted by a manifestly anti-competitive common intention. 2551. Blue Circle's arguments must therefore be rejected. 2552. Third, CBR, Dyckerhoff, SFIC, Ciments Français, Lafarge, BDZ, Uniland,Italcementi, Holderbank, Aker, EUROC and Blue Circle claim that theCommission's assessment of the economic and legal context in which the ETF was set up was inaccurate or inadequate. The ETF was set up as an act of legitimateself defence against imports from Greece, unlawfully aided by the publicauthorities. In that regard, Lafarge and Holderbank claim that the Commission'slist, in footnote 113 of the contested decision, of State aids received at that time bythe Greek cement industry is incomplete. 2553. The SFIC considers that, in such a context, it was not open to the Commission tobe satisfied with establishing participation in meetings. It ought also to have shownthat measures contrary to Article 85(1) of the Treaty had been adopted, inparticular by SFIC, against Greek cement producers. Lafarge maintains that, inaccordance with the case-law of the Court (Suiker Unie and Others v Commission,cited at paragraph 651 above), if government measures seriously distortcompetition, thus preventing traders from following the normal patterns ofcompetition, Article 85(1) of the Treaty is no longer applicable. Aker and EUROC,after pointing out that one of the objectives of the Treaty is to establish 'a systemensuring that competition in the internal market is not distorted (Article 3g),consider, on the basis of the judgment in Case 6/72 Europemballage Corporationand Continental Can Company v Commission [1973] ECR 215, paragraph 24, whereundertakings and Member States perform acts or adopt measures which distortcompetition, Article 85(1) of the Treaty must not be applied to actions which areintended only to eliminate the consequences of those incompatible measures. 2554. Lafarge, BDZ, Uniland, Italcementi, Holderbank, Aker, EUROC and Blue Circleallege that the Commission did not adopt the measures which were necessary inorder to ensure that the distortion of competition caused by the aid unlawfullyreceived by the Greek producers was swiftly eliminated. In support of theirarguments, Lafarge, Uniland, Italcementi, Holderbank and Blue Circle cite thejudgment in Joined Cases T-447/93, T-448/93 and T-449/93 AITEC and Others vCommission [1995] ECR II-1971, which annulled a Commission decision of 1August 1991, contained in Commission communication 92/C 1/03 pursuant toArticle 93(2) of the EEC Treaty to other Member States and interested partiesconcerning aid to Heracles General Cement Company in Greece (OJ 1992 C 1, p.4), a decision which had declared that aid granted by the Hellenic Republic wascompatible with the common market. 2555. Those various arguments cannot be accepted. 2556. They seek in essence to claim exemption from the prohibition laid down in Article85(1) of the Treaty, on account of the particular circumstances surrounding thesetting-up of the ETF. The conditions for such an exemption are expressly andexhaustively listed in Article 85(3) of the Treaty. Any grant of such an exemptionin this case would, in addition, have required formal notification to the Commissionof the agreement setting up the ETF (Case 30/78 Distillers Company v Commission,cited in paragraph 150 above, paragraphs 19 to 24, and Van Landewyck and Othersv Commission, cited in paragraph 717 above, paragraphs 61 and 62). 2557. Moreover, undertakings cannot justify infringement of the rules on competition byclaiming that they were forced into it by the conduct of other traders (see, interalia, Case 16/61 Modena v High Authority [1962] ECR 289 and Musique DiffusionFrançaise and Others v Commission, cited in paragraph 439 above, paragraphs 90and 100). 2558. Nor can the fact that traders have, in the present case, received public aid justifythe adoption of private anti-competitive initiatives, even if the aid in question wasunlawful. As the Commission correctly points out in recital 53, paragraph 8, whileundertakings have the right 'not only to notify the competent authorities (includingthe Commission itself) of any infringements of national or Community provisions,but also to make a joint approach for this purpose, which necessarily presupposesthe ability to hold preparatory discussions amongst themselves, they are notentitled to take the law into their own hands by substituting themselves for theauthorities with competence to penalise any infringements of national and/orCommunity law and by preventing, through measures adopted on their owninitiative, the movement of products within the internal market (see Hilti vCommission, cited in paragraph 2082 above, paragraphs 115 to 119, and SCK andFNK v Commission, cited in paragraph 485 above, paragraph 194). The case-lawrelied on by Lafarge and by Aker and EUROC (see paragraph 2553 above) isirrelevant in that regard. 2559. Nor can the laxity allegedly displayed by the Commission in connection with the fileon Greek State aid justify unlawful initiatives adopted by the undertakings in orderto resolve the 'Greek problem. Even on the assumption that the Commission hasfailed to fulfil certain of its obligations under Article 155 of the EC Treaty (nowArticle 211 EC), that fact cannot justify any infringements of Community law (seeLandewyck v Commission, cited in paragraph 717 above, paragraph 84, andTréfilunion v Commission, cited in paragraph 223 above, paragraph 127). Moreover,it is apparent from the Zurich/Céligny document (contested decision, recital 25,paragraphs 3 to 7; documents 33.126/18772 to 18779) that the route of unlawfulprivate actions was chosen from the beginning without awaiting the outcome of aparallel, lawful route. Accordingly, the alleged uncertainties connected with thatlatter course of action cannot even be put forward as a reason for recourse toprivate anti-competitive measures. 2560. Finally, as the Commission rightly observes in recital 53, paragraph 8, of thecontested decision, the various documents considered above in paragraphs 2537 to2540 show that while the ETF's prime responsibility was to study measuresintended to prevent cheap imports onto Western European markets of cementfrom Greece, it had a wider mission, namely, the elimination of any import ofcheap cement likely to destabilise European markets. Justification of the ETFmerely by reference to the threat of allegedly unlawful imports from Greece cannottherfore be accepted. 2561. In conclusion, the applicants' explanations based on necessity arising out of thethreats of imports from Greece cannot render Article 85(1) of the Treatyinapplicable to the agreement referred to in Article 4(1) of the contested decision. 2562. Lafarge alleges that the Commission was guilty of abuse of process and misuse ofpowers, in that it chose to apply Article 85 of the Treaty without previously orsimultaneously applying Article 93 of the Treaty (now Article 88 EC) against theGreek practices. 2563. However, a decision is vitiated by misuse of powers only if it is apparent, on thebasis of objective, relevant and consistent evidence, that it was adopted with theexclusive or main purpose of achieving ends other than those stated (see the case-law cited at paragraph 779 above). 2564. In the present case, the Commission explains, in particular at recital 53, paragraph7, of the contested decision that it judged the agreement setting up the ETF to becontrary to Article 85(1) of the Treaty on the grounds that the objective pursuedby that agreement was 'to evaluate measures to eliminate imports to WesternEurope [i.e.] imports from Greece. It having been concluded in the analysisdeveloped at paragraphs 2537 to 2540 above that that assessment was well founded,Lafarge's submission alleging misuse of power or abuse of process by theCommission must therefore be rejected. 2565. Italcementi claims, citing Commission Decision 92/444/EEC of 30 July 1992 relatingto a proceeding under Article 85 of the EEC Treaty (Case No IV/33.494  ScottishSalmon Board) (OJ 1992 L 246, p. 37), that in so far as the European industriestried, through the ETF, to protect themselves against disturbances on the market,when safeguard measures were likely to be implemented by the Community publicadministration, the Commission ought, as in the case giving rise to that decision, tohave confined itself to the finding of infringement of the Treaty, without imposingany penalty on the undertakings concerned, a fortiori because such an approach wasauthorised by the Court (Case 7/82 GVL v Commission [1983] ECR 483, paragraph25). 2566. It must, however, be observed that, as is clear from a simple reading of Article 9of the contested decision (see also recital 65, paragraph 8), the infringements foundin Article 4 of the contested decision did not give rise, in themselves, to theimposition of a fine, since only the infringement found in Article 1, concerningparticipation in the Cembureau agreement, was penalised. 2567. In any event, in comparison with the case which gave rise to Decision 92/444 of 30July 1992, cited above, there are differences in the facts of the present case whichmake it impossible for Italcementi to rely on the position adopted by theCommission in that decision. Thus, in the Scottish Salmon Board case dumping hadbeen formally recognised by the Commission, which was not the case in the present instance. Moreover, the setting-up of the ETF, which sought the general eliminationof imports of cement into Western Europe, pursued an objective which, unlike thatof the Scottish Salmon Board, went far beyond adopting defensive measures against'disturbances in respect of which the Community authorities were likely to takeaction. 2568. For those various reasons, Italcementi's argument must be rejected. 2569. Fourth, CBR, Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Italcementi,Holderbank and Blue Circle consider that the setting-up of the ETF cannot beconsidered to constitute an infringement, since its members constantly displayedtheir concern to comply with Community law, by agreeing, first, to submit themeasures contemplated to legal scrutiny to ensure their lawfulness and, second, tonotify the Community authorities thereof. In this connection, they refer to variousdocuments mentioned in recital 25 of the contested decision (record of the meetingheld on 28 May 1986 in Rome (contested decision, recital 25, paragraph 1;document 33.126/18771); the Zurich/Céligny document; minutes of the ETFmeeting of 21 October 1986 (contested decision, recital 25, paragraphs 34 to 38, inparticular paragraph 35; documents 33.126/18895 to 18900, in particular 18895 and18896); 'notes of the meeting of EEC cement industry representatives in the HiltonHotel, Brussels, at 9.00 a.m., 6 November 1986, (contested decision, recital 25,paragraphs 39 to 43, in particular paragraph 40; documents 33.126/19007 and19008)). 2570. The Court finds that the various documents put forward by the applicants do infact reveal the wish of the members of the ETF to ensure compliance withCommunity law. However, the fact remains that the ETF was set up with theobjective of considering, with a view to making recommendations to the HeadDelegates, dissuasive and persuasive measures intended to eliminate imports(primarily those from Greece) into Western European markets, without awaitingthe result of the contacts and legal opinions envisaged. Furthermore, none of theapplicants is able to show that the Community authorities were informed of thesetting-up of the ETF. In any event, the submissions of the applicants cannot hidethe lack of formal notification to the Commission, under Article 85(3) of theTreaty, of the agreement setting up the ETF, the only conceivable lawful methodfor an agreement whose object was plainly contrary to Article 85(1) of the Treaty(see, to this effect, the case-law cited above at paragraph 2556). 2571. It follows that the applicants' argument must be rejected. 2572. Lafarge, Italcementi and Holderbank assert that, at their meeting on 6 November1986 with Mr Sutherland, a member of the Commission, the European cementproducers informed him of the existence of the ETF and of its goals. According toItalcementi, on that occasion Mr Sutherland approved the ETF's activities. 2573. However, the document relied on in this connection by the applicants ('notes ofthe meeting with Commissioner Sutherland in Brussels, 6 November 1986 at 11.00;documents 33.126/19009 and 19010) do not bear out such assertions. At most, itwould appear that representatives of the European cement industry made themember of the Commission aware of their common anxieties concerning the Greeksituation and their desire to find a solution which would reconcile the variousinterests in play. That document does not show that the setting-up of the ETF, itsobjective or the dissuasive and persuasive measures that it had been instructed toconsider in order to deal with the threat created by Greek imports were madeknown to Mr Sutherland or that he approved them. In any event, that line ofargument cannot hide the fact that there was no formal notification to theCommission of the agreement setting up the ETF or, therefore, that the agreementwas unlawful. 2574. The arguments of Lafarge, Italcementi and Holderbank must, therefore, berejected. 2575. Fifth, Aalborg claims that there is no reference in any of the documents concerningthe ETF to the Cembureau agreement. Blue Circle submits that there is nothingin the contested decision to show that those participating in the ETF had thecommon objective of implementing the Cembureau agreement. 2576. However, it must be found that those submissions cannot prevail over thedocuments analysed at paragraphs 2537 to 2540 above, which prove the anti-competitive purpose of the ETF. 2577. Sixth, Aker and EUROC maintain that the Commission found the ETF to becontrary to Article 85 of the Treaty solely on the ground that it came within theframework of the single and continuous agreement relating to the protection ofhome markets. 2578. That argument must be rejected. In the words of recital 53, paragraph 7, of thecontested decision, the Commission concluded that the ETF was contrary to Article85(1) of the Treaty, not because it was connected to the Cembureau agreement buton the basis of the evidence in the record of the ETF meeting held in Geneva on19 August 1986, set out in paragraph 2537 above. That information also led theCommission to take the view that the objective of the ETF '[fell] wholly within theframework of the Cembureau agreement on non-transhipment to home markets(same paragraph). The correctness of the latter assessment will be considered inparagraphs 4050 to 4052 below. 2579. Seventh, Lafarge considers that the Commission misunderstood the relevantgeographical market in the case concerning Greece. In its view, that marketconsisted solely of the European harbour areas and their immediate hinterlands,where there was little vertical integration and large independent purchasers. 2580. It should, however, be pointed out that that claim is contradicted by variousdocuments showing that the relevant geographical market to which the agreementreferred to in Article 4(1) of the contested decision relates had the Europeandimension described by the Commission in recital 11 thereof. Thus it is clear fromthe record of the meeting held on 28 May 1986 in Rome  first meeting describedin recital 25 of the contested decision in relation to the Greek question  that 'allcountries [of Western Europe] were concerned by the decision of the Greekindustry to export 2 million surplus tonnes a year, a decision which was at the originof the 'common front reaction of the European producers, based on dissuasiveand persuasive measures (contested decision, recital 25, paragraph 1; document33.126/18771). Moreover, the Zurich/Céligny document advocated 'cooperationbetween the common market/Western European producers in order to confrontthe threat of destabilising imports which was of concern 'to the whole of Europeand not only to the countries under immediate attack. Last, it has already beenpointed out (see paragraphs 2537 and 2538 above) that, in the words of the reportsof the ETF meeting held on 19 August 1986 in Geneva (contested decision, recital25, paragraph 15: annex 15 to the reply by Aker and EUROC to the SO) and themeeting of the Head Delegates and representatives of the ETF on 9 September1986 in Baden-Baden (contested decision, recital 25, paragraph 24; documents33.126/18849 to 18862), the objective of the ETF was to examine dissuasive andpersuasive measures to eliminate imports of cement into European markets. 2581. In any event, Lafarge's argument cannot prevail against the analysis, in paragraphs2537 to 2540 above, showing that the Commission was justified in finding that theagreement setting up the ETF was contrary to Article 85(1) of the Treaty. 2582. Lafarge's argument must therefore be rejected. 2583. Eighth, several of the applicants put forward a series of arguments intended toestablish that the setting-up of the ETF had not given rise to any effect, measure,action or decision liable to restrict competition in the common market. 2584. Lafarge thus claims that the ETF was a think-tank, with mere power to submitproposals. The setting-up of the ETF was therefore not in itself a measure fallingwithin the scope of Article 85(1) of the Treaty. That think-tank was unable to reacha concurrence of wills, since it lacked any decision-making power  which wasreserved exclusively to the Head Delegates  and it could not have caused anyrestriction of competition, since its powers were confined to the formulation ofmere proposals. Lafarge adds that the only two measures proposed by the ETF inorder to settle the 'Greek problem were actions intended to raise theconsciousness of national and Community authorities, on the one hand, and thecreation of Interciment, on the other. However, none of those measures wasunlawful. Article 4(1) of the contested decision, which classifies the setting-up ofthe ETF as an infringement of Article 85(1) of the Treaty, is, in Lafarge's opinion, ultimately devoid of purpose, because the creation of Interciment, the only measureto which the setting-up of the ETF led, is found to be unlawful in Article 4(2). 2585. Aalborg claims that, with the exception of Interciment, a dormant company, theETF never went beyond the stage of intentions. 2586. Holderbank points out that none of the reprisal measures discussed within the ETFwas actually put into effect. 2587. Aker and EUROC maintain that the ETF was a discussion group, the foundermembers of which did not in any definite way commit themselves to unlawfulcollective action. They add that the agreement setting up the ETF did not have anappreciable effect on competition. 2588. Blue Circle claims that the ETF and its working subgroups were think-tanks andforums for the exchange of information, and never led to collective decisions.Furthermore, the ETF was not convened again after March 1987, because it hadnever put forward any useful proposals. 2589. However, none of those arguments can refute the findings that follow from thedocuments referred to in recital 25 of the contested decision, namely that, when theproblem of imports of Greek cement arose, various representatives of theEuropean cement industry agreed to set up the ETF, giving it the objective ofexamining dissuasive and persuasive measures intended to eliminate imports ofcement into European markets, primarily those from Greece, and to recommendto the Head Delegates the measures to be adopted for that purpose. Around thatinitiative, a concurrence of wills therefore emerged, that is to say, an agreementwithin the meaning of Article 85(1) of the Treaty (see to that effect the case-lawcited in paragraph 1010 above), the objective of which the Commission correctlyfound (see paragraphs 2537 to 2540 above) to be anti-competitive. For thepurposes of application of Article 85(1) of the Treaty, it is not necessary to takeaccount of the actual effects of an agreement, once it is plain that the agreementis intended to prevent, restrict or distort competition within the common market(see the case-law cited in paragraph 837 above). Therefore, there is no need toconsider the various arguments of the applicants seeking to demonstrate that thesetting-up of the ETF did not lead to any effect, result, measure or decisionrestrictive of competition, and it must be concluded that the Commission wasjustified in treating the agreement setting up the ETF, referred to in Article 4(1)of the contested decision, as an infringement of Article 85(1) of the Treaty. 2590. Ninth, Aker and EUROC maintain that the agreement setting up the ETF had noappreciable effect on trade between Member States. 2591. It must however be recalled that, by prohibiting agreements the object or effect ofwhich is to restrict competition and which are liable to affect trade between Member States, Article 85(1) of the Treaty does not require it to be establishedthat the agreement or concerted practice in question has in fact appreciablyaffected that trade, proof of which, in most cases, would be difficult to establish. Itrequires proof that the agreement or practice was capable of having such an effect.An agreement may thus affect trade between Member States where it is possibleto foresee with a sufficient degree of probability, on the basis of a set of factors oflaw or of fact, that the agreement or practice in question may have an influence,direct or indirect, actual or potential, on the pattern of trade between MemberStates (see, to that effect, the case-law cited in paragraph 1986 above). By its veryobjective, which was to eliminate imports into Western Europe (see the documentsexamined in paragraphs 2537 to 2540 above), the agreement setting up the ETFwas capable of having an appreciable effect on trade in cement within the commonmarket. Aker and EUROC's argument must therefore be rejected. C  Participation, in the agreement setting up the ETF, of the applicants namedin Article 4(1) of the contested decision 1. Preliminary observations 2592. The following applicants are alleged to have committed the infringement relatingto the agreement setting up the ETF: CBR, Cembureau, Dyckerhoff, SFIC,Ciments Français, Heidelberger, Lafarge, Aalborg, BDZ, Unicem, Asland, Uniland,Oficemen, Irish Cement, Italcementi, Holderbank, Aker, EUROC, Cementir andBlue Circle. 2593. In recital 53, paragraph 2, of the contested decision, the Commission explains: 'The concurrence of wills on the part of each participant was expressed at variousmeetings and, in particular, at the meetings of the Head Delegates as well asthrough participation in the various actions undertaken. 2594. It is common ground that the appearance of the 'Greek problem gave rise, in1986 and 1987, to a series of meetings between representatives of the Europeancement industry, in particular to those described by the Commission in recital 25of the contested decision:  the meeting on 28 May 1986 in Rome (recital 25, paragraph 1);  working party meetings from 3 to 5 June 1986 in Zurich and then in Céligny(paragraphs 2 to 7);  meeting on 9 June 1986 in Stockholm (paragraphs 8 to 10);  eight meetings of the ETF: on 17 June 1986 in London (paragraph 11), on2 July 1986 in Milan (paragraph 12), on 8 July 1986 in Geneva (paragraph13), on 19 August 1986 in Geneva (paragraphs 14 to 20), on 9 September1986 in Baden-Baden (paragraph 21), on 21 October 1986 in Geneva(paragraphs 34 to 38), on 9 January 1987 in Milan (paragraph 44) and on11 February 1987 in Geneva (paragraphs 45 and 46);  meeting of the ETF working subgroup on 'stick actions on 17 March 1987(paragraph 47);  meeting of the 'Head Delegates and representatives of the taskforce on9 September 1986 in Baden-Baden (paragraphs 22 to 33);  meeting of 'EEC cement industry representatives on 6 November 1986 inBrussels (paragraphs 39 to 43);  a meeting at the end of May 1987, connected with Cembureau's generalassembly (paragraph 48). 2595. Except for Holderbank and Blue Circle, which deny only that the setting-up of theETF was an infringement and, in the alternative, dispute the duration of thatinfringement  arguments which are analysed at paragraphs 2532 to 2561, 2569 to2576 and 2583 to 2589 above and at paragraphs 2791 to 2808 below, respectively all the applicants named in Article 4(1) of the contested decision deny that theyparticipated in the infringement referred to therein. 2. CBR 2596. CBR claims not to have been represented in the ETF and not to have taken partin any of the meetings described in recital 25 of the contested decision. Itacknowledges that the Belgian Head Delegate was present at the meeting on 9June 1986 in Stockholm. At that meeting, the only decision taken was to createInterciment. CBR acknowledges that the Belgian Head Delegate was present at themeeting in Baden-Baden on 9 September 1986, described in recital 25, paragraphs22 to 32 of the contested decision. None the less, that meeting was purelyinformative: it enabled the members of the ETF to put forward the conclusionsdrawn from their work and to prepare the next day's meeting, in Strasbourg, withmembers of the European Parliament. Moreover, at that meeting it was decidedto keep Interciment dormant. CBR admits that the Belgian industry wasrepresented at the meeting held on 6 November 1986. It claims, however, that thatmeeting merely served as preparation for the meeting arranged the same day withMr Sutherland, a member of the Commission, concerning the file relating toGreece. It was also confirmed at that meeting that Interciment would remain dormant. CBR submits that it did not take part in any other meeting of the ETFuntil it was dissolved, nor did it take part in any of its working subgroups. 2597. It must be pointed out that the Belgian Head Delegate present at the meeting inStockholm on 9 June 1986 was Mr Van Hove, then Chairman of CBR (reply byCBR on 16 June 1998 to the written question of the Court). At that meeting, MrVan Hove represented the interests of the Belgian industry as a whole, includingthose of CBR, which he could not disregard, taking account of the major role whichhe then played in CBR. 2598. According to Holderbank's reply 7b of 7 May 1990 to a request by the Commissionfor information (contested decision, recital 25, paragraph 10; document33.126/18755), the participants at the meeting in Stockholm held on 9 June 1986'decided formally to set up the ETF. It is, moreover, clear from the record of themeeting held in Rome on 28 May 1986 ('informal meeting concerning the Greekproblems, Rome, 28 May 1986; contested decision, recital 25, paragraph 1;document 33.126/18771) that the participants in that meeting agreed to meet againin Stockholm on 9 June 1986 and that, for the purposes of that Stockholm meeting,they had instructed a restricted working group to meet in Zurich the week after inorder to prepare detailed documentation on all aspects concerning possibledefensive measures. For its part, Holderbank had suggested preparing, immediatelyafter the Rome meeting, a 'position paper including several draft persuasivemeasures. Read in conjunction with the information in the records of the meetingof the ETF held on 19 August 1986 and the meeting of Head Delegates andrepresentatives of the ETF held on 9 September 1986 concerning the objectivegiven to the ETF (see paragraphs 2537 and 2538 above), that information supportsthe conclusion that, at the meeting held in Stockholm on 9 June 1986, theparticipants endorsed the Zurich/Céligny document and charged the ETF withconsidering the dissuasive and persuasive measures recommended by thatdocument. 2599. Furthermore, it is apparent from the minutes of the meeting of Head Delegatesand representatives of the ETF in Baden-Baden on 9 September 1986 that 'Mr P.Sytor, Cimenteries CBR, Belgium took part in that meeting (contested decision,recital 25, paragraph 23; document 33.126/18857). For the other participants, MrSytor was the CBR representative. 2600. According to the minutes of the meeting (contested decision, recital 25, paragraphs22 to 32; documents 33.126/18849 to 18862), at the beginning of the meeting theETF's objective was recapitulated in the following terms: The ETF was establishedin order 'to examine possible dissuasive and persuasive measures to counterthe arrival of cheap cement on European markets (primarily against Greek importsinto the United Kingdom) and to submit recommendations to the Head Delegates.The ETF then identified a series of subjects requiring study and investigation:agreement with the Greek industry; retaliatory action on the traditional markets for Greek export; exports to Greece; threats from other countries; cement dealers. Asthe ETF was overloaded with work and had not proposed any significant solutionsince it had been set up, the decision was taken to create various workingsubgroups (subgroup of intermediaries; subgroup 'Greek export markets;subgroup 'exports to Greece; subgroup 'exchange of defensive experiences;subgroup 'threats from other countries), coordination of which was to be carriedout by the ETF and work submitted from time to time to the Head Delegates.Several of the dissuasive and persuasive measures contemplated in theZurich/Céligny document were then examined. Decisions or positions were adoptedon some of these: thus, it was decided to continue negotiations with a view to anagreement intended to absorb Greek excess capacity, the ETF was instructed tosubmit recommendations to the Head Delegates by the end of Septemberconcerning the feasibility of exports to Greece as retaliation, and it was decided togather further information following Blue Circle's fruitless approaches to BanqueWorms and to Crédit Suisse France with a view to cutting the flow of finance toBouri, the intermediary of the Greek producers in the United Kingdom. It was alsoagreed that, while the joint trading company, Interciment, which had beenconstituted in accordance with the decision adopted in Stockholm on 9 June 1986,would for the time being remain dormant, it should be ready to become operationalin order to implement the dissuasive and persuasive measures. 2601. The notes of the meeting held in Brussels on 6 November 1986 mention thepresence of Mr Van Hove at that meeting of 'EEC cement industryrepresentatives (contested decision, recital 25, paragraph 39; document33.126/19007). At that meeting, Mr Van Hove thus represented the Belgianindustry and, in particular, CBR, of which he was at the time the chairman andchief executive officer. 2602. According to the notes of that meeting (contested decision, recital 25, paragraphs39 to 43; documents 33.126/19007 and 19008), discussions were held, as CBRmaintains, concerning the meeting arranged with the member of the Commissionresponsible for competition policy. However, it was also agreed at that meeting that'the task force would continue to meet from time to time and reviewdevelopments concerning the development of Greek imports into Europeanmarkets. 2603. In the absence of evidence to the contrary, CBR, by taking part in the meeting inStockholm on 9 June 1986, the meeting of Head Delegates and representatives ofthe ETF in Baden-Baden on 9 September 1986 and in the meeting held in Brusselson 6 November 1986, approved or at least gave the other participants theimpression that it approved the setting-up of the ETF and the evaluation by theETF of dissuasive and persuasive measures intended to eliminate destabilisingimports into Western Europe. The Commission was therefore justified in findingin Article 4(1) of the contested decision that CBR had taken part in the agreementsetting up the ETF (see, to that effect, the case-law cited in paragraph 1353 above). 2604. However, since there is nothing in the contested decision to support the conclusionthat CBR acceded to the agreement constituting the ETF before it took part in themeeting held in Stockholm on 9 June 1986, Article 4(1) of the contested decisionmust be annulled in so far as it finds that CBR took part in that agreement beforethat date. 2605. CBR also disputes various items of evidence on which the Commission relies inrecital 24, paragraph 3, of the contested decision in submitting that the coalitionintended to tackle the 'Greek threat was formed within Cembureau. 2606. However, there is no need to consider whether that line of argument is wellfounded; it suffices to point out that it cannot refute the findings made inparagraphs 2597 to 2602 above regarding CBR's participation in the meeting inStockholm on 9 June 1986, the meeting of the Head Delegates and representativesof the ETF in Baden-Baden on 9 September 1986 and the meeting in Brussels on6 November 1986. It is not therefore of such a nature as to invalidate theconclusion reached in paragraph 2603 above as to the correctness of theCommission's decision finding that CBR took part in the agreement setting up theETF. 3. Cembureau 2607. Cembureau denies any involvement in the setting-up and running of the ETF. Itclaims that its two directors, Mr Dutron and Mr Collis, who were present at themeeting in Rome on 28 May 1986 and the meeting held in Zurich on 3 June 1986respectively, carried out tasks which were merely secretarial (Mr Dutron) orconsisted of lawful assistance (Mr Collis), which could not have turned those twomeetings into Cembureau meetings. It adds that, as is apparent from reply 7b of7 May 1990 by Holderbank to a request for information from the Commission(contested decision, recital 25, paragraph 2; document 33.126/18756), Mr Collis waspresent only at the start of the meeting in Zurich on 3 June 1986. He then left themeeting on account of the conflict of interests on his part created by the raising ofthe question of public aid granted to Greek producers. 2608. Nevertheless, it should be pointed out that, in the words of the record of themeeting held in Rome on 28 May 1986, drafted by Mr Dutron ('informal meetingon problems raised by Greece, Rome, 28 May 1986; contested decision, recital 25,paragraph 1; document 33.126/18771), the object of that meeting was to respond,rapidly and in common, to the decision of the Greek cement industry to exportcement (two million tonnes per year) into Western Europe, by combining defensivemeasures ('the stick) and supportive measures ('the carrot). The participants atthat meeting agreed to meet again in Stockholm on 9 June 1986. With a view tothat new meeting, a working group of four members was appointed with the taskof preparing in Zurich the following week, with the assistance of Mr Collis, 'detailed documentation on all the matters dealing with possible defensivemeasures. It was also agreed at that meeting that Holderbank was to prepare a'position paper including some proposed supportive measures. Thus, at themeeting in Rome on 28 May 1986 the idea arose of a common response todestabilising imports, primarily those from Greece, by means of dissuasive andpersuasive measures. That meeting gave rise to the 'ETF initiative. 2609. By taking part in the meeting on 28 May 1986, in the person of Mr Dutron, whowas responsible for drafting the record of that meeting, and by offering Mr Collis'assistance in order to prepare detailed documentation on feasible dissuasivemeasures for the purposes of the meeting in Stockholm on 9 June 1986,Cembureau indicated its support, from the very start, for the setting-up of the ETFand for the evaluation by the ETF of dissuasive and persuasive measures. 2610. Cembureau's participation in the agreement setting up the ETF is also shown bythe presence, even if of short duration, of Mr Collis at the meeting on 3 June 1986,during which the Zurich/Céligny document, 'the framework document of theETF's studies for the evaluation of dissuasive and persuasive measures, began tobe finalised. The argument put forward by Cembureau with regard to the allegedreason for Mr Collis' hasty departure from the meeting on 3 June 1986 is notsupported by any specific evidence and cannot be accepted. Mr Dutron took partin the entire meeting in Rome on 28 May 1986, without at any time havingperceived a real or potential conflict of interests for Cembureau, even though thatmeeting was exclusively dedicated to the need for a joint reaction to imports ofcement from Greece into Western Europe. 2611. In conclusion, the Commission was entitled to find in Article 4(1) of the contesteddecision that Cembureau participated in the agreement setting up the ETF as from28 May 1986. 2612. Cembureau then challenges the various pieces of evidence put forward by theCommission in recital 24, paragraph 3, of the contested decision to show that theETF was formed within Cembureau. 2613. There is, however, no need to consider whether those criticisms are well founded,becasue they cannot refute the findings, set out above in paragraphs 2608 to 2610,that Cembureau participated in the meetings in Rome on 28 May 1986 and inZurich on 3 June 1986. Accordingly, they are not of such a nature as to affect theconclusion reached in paragraph 2611 above as to the correctness of theCommission's decision finding that Cembureau took part in the agreement settingup the ETF. 4. Dyckerhoff 2614. Dyckerhoff points out that, of all the meetings described in recital 25 of thecontested decision, it took part only in the meetings in Rome on 28 May 1986, inStockholm on 9 June 1986, of the Head Delegates and representatives of the ETFin Baden-Baden on 9 September 1986, and of the representatives of the Europeancement industry in Brussels on 6 November 1986. 2615. It maintains that it participated in those four meetings for the sole purpose ofmaking national and Community authorities aware of the problems created by Stateaid granted to Greek cement producers. That corresponded with one of the twoobjectives pursued by the ETF. It claims to have shown its lack of interest in andlack of support for the unlawful activities of the ETF by not appointing anyrepresentative within the ETF, by ceasing to take part in any meeting after havinghad the interview with Mr Sutherland, a member of the Commission, in Brusselson 6 November 1986, and by not taking part in any dissuasive measure. In its view,those various aspects of its conduct clearly showed the other producers concernedthat its sole interest lay in making the Commission take action in respect ofbreaches of Community law committed by the Hellenic Republic. 2616. Finally, Dyckerhoff claims that, as is shown by the documents relied on by theCommission in recital 25 of the contested decision, all the discussions in which ittook part were subject to the condition that they should be compatible with theprovisions of the Treaty relating to competition. It therefore assumed that thedecisions and measures adopted at those meetings did not infringe Community law. 2617. That line of argument cannot be accepted. 2618. As it acknowledges, Dyckerhoff took part in the meetings held in Rome on 28 May1986 and in Stockholm on 9 June 1986, in the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986 and in themeeting held in Brussels on 6 November 1986. 2619. In the light of the facts set out in paragraphs 2598, 2600, 2602 and 2608 above, andin the absence of any evidence submitted by Dyckerhoff to show that, at thosemeetings, it openly distanced itself from the manifestly anti-competitive objectivewhich was apparent upon the setting-up of the ETF, or had clearly informed theother participants that it was taking part in those meetings with different objectsin mind, namely, solely for the purpose of preparing actions to make national andCommunity authorities aware of the 'Greek problem, it must be found thatDyckerhoff subscribed to, or at least gave the other participants the impression thatit subscribed to, the setting-up of the ETF and its anti-competitive objective (see,to this effect, the case-law cited in paragraph 1353 above). 2620. Having regard to the findings in paragraphs 2507 to 2511 above, there is no needto assess at this juncture whether Dyckerhoff's argument denying that it took partin dissuasive measures against Greek producers is well founded, and it must therefore be concluded that the Commission was fully entitled to hold thatDyckerhoff took part from 28 May 1986 in the agreement setting up the ETF. 5. SFIC 2621. SFIC maintains that the evidence put forward by the Commission does not provethat it was involved in the agreement setting up the ETF. There is no evidence ofany decision of an association of undertakings, and the Commission has notdemonstrated how the conduct of the persons carrying out duties within it couldhave had anti-competitive object. 2622. It should be pointed out that, before a trade association can be considered to haveparticipated in an agreement contrary to Article 85(1) of the Treaty alongside theundertakings which are its members, the Commission must establish conduct by theassociation, in connection with the infringement, that is separate from that of itsmembers (see to that effect, the case-law cited in paragraph 1325 above). 2623. In the present case, it is common ground that Mr Laplace took part in the meetingsin Rome on 28 May 1986, in Stockholm on 9 June 1986 and in Brussels on 6November 1986 (contested decision, recital 25, paragraph 9) and that Mr Kasrieltook part in the meeting of Head Delegates and representatives of the ETF inBaden-Baden on 9 September 1986 (contested decision, recital 25, paragraph 23;document 33.126/18857). Mr Laplace, the chairman of Ciments Français (contesteddecision, recital 25, paragraph 9), was also chairman of the SFIC (see documents33.126/14834, 14846 and 14855, cited at recital 29, paragraph 4, of the contesteddecision), and Mr Kasriel, a Lafarge employee (contested decision, recital 25,paragraph 23; document 33.126/18857), was also a member of the SFIC bureau(see documents 33.126/14834, 14846 and 14855, referred to above). 2624. Furthermore, as the Commission points out in recital 29, paragraph 4, of thecontested decision, 'item 3 of the agenda of the meetings of the SFIC bureau on8 July 1986, 9 September 1986 and 7 October 1986 deals with the problem ofexports of cement from Greece and 'the members of the bureau present [at thosemeetings] always included Mr Laplace, chairman and, at one meeting [that of 7October 1986], Mr Kasriel .... 2625. It is thus apparent that Mr Laplace and Mr Kasriel were present, at the very leastas representatives of the SFIC, at the four meetings mentioned in paragraph 2623above, at each of which a concurrence of wills was expressed concerning thesetting-up of the ETF (see paragraphs 2598, 2600, 2602 and 2608 above), and thatthe SFIC, by relaying to its market the discussions held at those meetings on thequestion of exports from Greece, adopted, in connection with the infringementfound to exist by Article 4(1) of the contested decision, an individual course ofconduct, separate from that of the French undertakings referred to in that provision. The Commission was therefore fully entitled to consider that as from 28May 1986 the SFIC participated in the agreement setting up the ETF, as found inArticle 4(1) of the contested decision. 6. Ciments Français 2626. Ciments Français observes that Mr Laplace, its chairman, took part in only threeof the fourteen meetings at issue described in recital 25 of the contested decision,namely, that held in Rome on 28 May 1986, that held in Stockholm on 9 June 1986and that held in Brussels on 6 November 1986. It claims that Mr Laplace took partin those meetings only as chairman of the SFIC and as member of the CLC, andsolely in connection with actions taken to make national and Community authoritiesaware of the 'Greek problem. It states that neither it nor Mr Laplace ever tookpart in meetings with the ETF, that it did not participate in the running ofInterciment or in the latter's executive committee, that it was not involved inpurchases of cement and clinker from Greek producers and that it did not have thefacilities necessary to take part in the alleged dissuasive and persuasive measures.It adds that, on account of its limited export and trading activity, and the fact thatit has no factory by the sea, it had no real interest in committing itself. 2627. It considers that, as it was not represented at the meetings of the ETF and did nottake part in any specific measure, it cannot be regarded as a party to the allegedagreement concerning unfair imports from Greece. Furthermore, it states that thefunction of the ETF was to prepare the decisions of the Head Delegates in theGreek matter. Since the Head Delegates were not bound by the conclusions of theETF, they could not be held responsible for the work done by the ETF. 2628. It must, however, be pointed out that, according to the record of the meeting heldin Rome on 28 May 1986 (contested decision, recital 25, paragraph 1; document33.126/18771), a representative of 'Ciments Français was present at that meeting.According to that same record, the representatives of the 'companies who hadmet in Rome decided to meet again in Stockholm on 9 June 1986. By letter of 22September 1986 (recital 25, paragraph 33 of the contested decision; document33.126/19022), Holderbank requested Lafarge to give 'Ciments Français a copyof the minutes of the meeting of Head Delegates and members of the ETF heldin Baden-Baden on 9 September 1986. 2629. Whether or not the meetings in Rome on 28 May 1986, Stockholm on 9 June 1986and Brussels on 6 November 1986 were official meetings of the Head Delegates ofCembureau, it is therefore apparent that Mr Laplace was present at those meetingsin his capacity as high representative of Ciments Français as well as of SFIC. 2630. In that connection, the Commission correctly states in the contested decision(recital 53, paragraph 13): 'Even if Mr Laplace did, like other representatives, participate [in those meetings]in his capacity as President of an Association or chairman of a committee, he couldnot, in attending the meetings, disregard the fact that he was chairman of CimentsFrançais ... His presence therefore ensured that SFIC and the Committee, togetherwith the company of which he was chairman, had a role within the Task Force. 2631. In the light of the facts set out in paragraphs 2598, 2602 and 2608 above, and inthe absence of any evidence adduced by Ciments Français showing that, at thosemeetings, it informed the other participants that it was taking part in the meetingssolely in connection with actions to make the public authorities aware of the'Greek problem, it must be found that Ciments Français approved or at leastgave the other participants to understand, that it approved the setting-up of theETF and its anti-competitive object (see, to that effect, the case-law cited inparagraph 1353 above). 2632. Having regard to the findings in paragraphs 2507 to 2511 above, there is no needto assess at this juncture whether Ciments Français' argument denying that it tookpart in the management of Interciment and in dissuasive and persuasive measuresagainst Greek producers is well founded, and it must therefore be concluded thatthe Commission was fully entitled to hold that Ciments Français took part from 28May 1986 in the agreement setting up the ETF. 7. Heidelberger 2633. Heidelberger claims first of all not to have been a member of the ETF. It is allegedto have taken part in only one of the meetings described in recital 25 of thecontested decision in relation to the ETF, namely that held in Rome on 28 May1986. That meeting took place before the ETF was set up. Moreover, Heidelbergerwas not even invited to take part. Mr Brenke, who was in Rome for other reasons,was spontaneously invited to participate. None the less, his participation was notactive. 2634. In its view, it is apparent from the record of the meeting that the purpose of themeeting was simply to consider in a general manner possible measures againstcheap imports from Greece. The meeting merely led to the setting-up of a limitedworking group, composed of the producers affected by those imports (UnitedKingdom, Spain, France and Italy). That group was instructed to preparedocumentation on the legal aspects of any defensive measures. At the meeting, onlylawful responses were considered. No unlawful action or measure was eithercontemplated or adopted. 2635. Heidelberger states that it did not participate in the Zurich/Céligny meeting of theworking group from 3 to 5 June 1986, in the course of which no measure was inany event adopted. It neither approved nor supported the setting-up of the ETF. It had distanced itself from the measures contemplated against Greek producersat a time when it could not yet foresee the possibility of infringements of the ruleson competition. Nor did it play any part in the application of the measures adoptedin connection with the ETF. It acknowledges that the name of Mr Brenke ismentioned in the minutes of the meeting of Head Delegates and representativesof the ETF in Baden-Baden on 9 September 1986 amongst the members of thesubgroup 'exchange of defensive experiences, created at that meeting (contesteddecision, recital 25, paragraph 24; document 33.126/18862). It claims, however, thatit was only through the SO that it was informed of the existence of that subgroupand that it never took part in its meetings. Nor did it take part in the meetings ofthe Head Delegates at which ETF proposals were adopted. 2636. Heidelberger observes that the Commission concludes that there existed a commonobjective in connection with the ETF, on the basis of the record of the meeting ofthe ETF held in Geneva on 19 August 1986 (contested decision, recital 25,paragraph 15). It was not present at that meeting. It therefore did not participatein establishing the common objective in question. 2637. Furthermore, it claims to have had no interest in participating in the ETF,inasmuch as it was not affected by imports from Greece on its market in the southof Germany. 2638. That argument cannot be accepted. 2639. Heidelberger acknowledges that it was present at the meeting in Rome on 28 May1986. At that meeting, it was agreed to respond rapidly and in common, throughdissuasive and persuasive measures, to the decision of the Greek industry to exportcement to Western Europe, a decision which threatened the stability of allEuropean markets (see paragraph 2608 above). The 'ETF initiative was thustaken at that meeting. 2640. Since Heidelberger has not adduced any evidence to show that it openly distanceditself at that meeting from the  manifestly  anti-competitive objective pursued atit, it must be held that Heidelberger indicated, from the start, its support for thesetting-up of the ETF and its anti-competitive object or at least gave the otherparticipants to believe that it supported that unlawful initiative (see, to that effect,the case-law cited in paragraph 1353 above). 2641. The fact that, on the one hand, the name of Mr Brenke of Heidelberger was putforward, even if unknown to him, at the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986 as a member ofthe ETF subgroup 'exchange of defensive experiences and that, on the otherhand, Holderbank asked Dyckerhoff to send a copy of the minutes of that meetingof 9 September 1986 to Mr Schuhmacher, the then chairman of Heidelberger(contested decision, recital 25, paragraph 33; document 33.126/19020), shows moreover that, contrary to what Heidelberger would now have the Court believe,it never gave the other participants the impression that it had no interest in theproblem of imports of Greek cement into European markets. 2642. In those circumstances, it is immaterial that, in order to illustrate the unlawfulobjective pursued by the setting-up of the ETF, the Commission relied, inter aliaon a document which related to a meeting subsequent to that held in Rome on 28May 1986, namely the ETF meeting held in Geneva on 19 August 1986, at whichHeidelberger was not present. 2643. There being no need, in the light of what has been found in paragraphs 2507 to2511, to evaluate at this juncture whether Heidelberger's argument denying anyparticipation in the application of the measures adopted in connection with theETF is well founded, it must therefore be concluded that the Commission was fullyentitled to consider that, as from 28 May 1986, Heidelberger participated in theagreement setting up the ETF. 2644. Next, Heidelberger challenges the relevance of the evidence relied on by theCommission in recital 24, paragraph 3, of the contested decision in order toestablish a structural link between Cembureau and the ETF. It adds that theexistence of such a link is belied by the fact that Cembureau is the Europeancement industry organisation, of which the association of Greek cement producersis a part and therefore, indirectly, the Greek producers themselves. It musttherefore be be ruled out that Cembureau would have adopted measures againstthe Greek industry. In consequence, Heidelberger cannot be held indirectlyresponsible for the ETF through Cembureau. 2645. There being no need to examine whether that argument is well founded, it issufficient to point out that it cannot override the finding in paragraph 2639 aboveconcerning Heidelberger's participation in the meeting in Rome on 28 May 1986.Therefore, that argument does not invalidate the conclusion set out in paragraph2643 above with regard to the validity of the Commission's finding thatHeidelberger took part in the agreement setting up the ETF. 2646. Finally, Heidelberger points out that the Spanish undertaking Hornos Ibéricos,found by the Commission, in recital 25 of the contested decision, to haveparticipated in various meetings of or relating to the ETF, has not been chargedwith the infringement referred to in Article 4(1). 2647. That argument cannot be accepted. The fact that the infringement mentioned inArticle 4(1) of the contested decision was not found to have been committed byHornos Ibéricos cannot make it in any way possible to disregard that infringementfound to have been committed by Heidelberger, provided that it has been properlyestablished (Woodpulp II, cited in paragraph 106 above, paragraph 146). Theforegoing grounds have enabled the Court to find that in the contested decision the Commission was fully entitled to conclude that Heidelberger participated in theagreement setting up the ETF. 8. Lafarge 2648. Lafarge claims that the Commission has not proved that there is a link between theETF and Cembureau. It challenges the evidence cited in recital 24, paragraph 3,and recital 53, paragraph 1, of the contested decision. The fact that the ETF wascreated after Cembureau cannot reveal any link between those two organisations.In its view, the organisation of a general assembly of Cembureau and a meeting ofthe ETF in Stockholm on the same day, namely 9 June 1986, can be explained onpractical grounds. According to Lafarge, it does not reveal that there is any linkbetween the two cases. The Cembureau documents in fact establish the totalindependence of those two bodies, since there is in them no allusion to the ETFin 1986 or 1987. Finally, it claims that the ETF could never have pursued itsobjective within Cembureau, the role of which is more general, and of which Greekcement producers are members. 2649. There is no need to consider whether that line of argument is well founded, as itcannot refute the findings made by the Commission in recital 25 of the contesteddecision, which Lafarge does not challenge, namely, that Lafarge took part in thefollowing meetings:  meeting in Rome on 28 May 1986 (contested decision, recital 25, paragraph1; document 33.126/18771);  meetings of the Zurich/Céligny working group on 3 and 5 June 1986(contested decision, recital 25, paragraph 2; document 33.126/18756);  meeting in Stockholm on 9 June 1986 (contested decision, recital 25,paragraph 9);  meeting of the ETF in London on 17 June 1986 (contested decision, recital25, paragraph 11; document 33.126/18756);  meeting of the ETF in Milan on 2 July 1986 (contested decision, recital 25,paragraph 12; documents 33.126/18756, 18757 and 18793);  meeting of the ETF in Geneva on 8 July 1986 (contested decision, recital25, paragraph 13; documents 33.126/18757 and 18795);  meeting of the ETF in Geneva on 19 August 1986 (contested decision,recital 25, paragraph 14; documents 33.126/18757 and 18758, and Annex 15to the reply to the SO by Aker and EUROC);  meeting of the ETF in Baden-Baden on 9 September 1986 (contesteddecision, recital 25, paragraph 21; document 33.126/18848);  meeting of the Head Delegates and representatives of the ETF at Baden-Baden on 9 September 1986 (contested decision, recital 25, paragraph 23;document 33.126/18857);  meeting of the ETF in Geneva on 21 October 1986 (contested decision,recital 25, paragraph 34; documents 33.126/18758, 18895, 18896 and 18899);  meeting of the ETF on 9 January 1987 (contested decision, recital 25,paragraph 44; document 33.126/18759);  meeting of the ETF in Geneva on 11 February 1987 (contested decision,recital 25, paragraph 45; documents 33.126/18760 and 18929, 18930, 18934and 18936);  meeting of the subgroup 'stick actions of 17 March 1987 (contesteddecision, recital 25, paragraph 47; documents 33.126/4858 to 4861). 2650. Having regard to what has been set out in paragraphs 2598, 2600 and 2608 aboveand in view of Lafarge's participation in the meetings in Rome on 28 May 1986 andin Stockholm on 9 June 1986 and the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986, together with,on the one hand, its contribution to the finalisation of the Zurich/Céligny documentand, on the other, its capacity as a direct member of the ETF, the Commission wasfully entitled to consider that Lafarge had, from the start, approved the setting-upof the ETF and its anti-competitive objective. The Commission was thus correct infinding, in Article 4(1) of the contested decision, that Lafarge had participated inthe agreement setting up the ETF as from 28 May 1986. 9. Aalborg 2651. Aalborg claims not to have been informed in the SO of the importance, in regardto it, which the Commission attached to the meeting in Rome held on 28 May1986, a meeting in which it did not participate. Moreover, it contends that theCommission infringed Article 190 of the Treaty, in that it did not explain in thecontested decision how Aalborg could be held to be responsible for the setting-upof the ETF at that meeting, to which it was not invited and of which it was neveraware. 2652. Aalborg asserts that the ETF was set up by eight European cement producers atthe meeting in Stockholm on 9 June 1986, in which it did not participate. 2653. Aalborg submits that its participation in the meeting held in Baden-Baden on 9September 1986 formed a part of the lobbying efforts of the European cementindustry vis-à-vis the Community institutions, in order that appropriate measuresshould be adopted to end State aid unlawfully received by the Greek industry. ForAalborg, the sole purpose of that meeting was therefore to prepare for the nextday's meeting with members of the European Parliament. The applicant claims tohave received a fax on 3 September 1986 informing it that the ETF was to reporton its activities at that meeting in Baden-Baden. It supposed that report could beuseful in lobbying the Community institutions. In any event, that point was enteredinto the agenda after the agenda had already been drawn up. It was, therefore,purely as a result of a coincidence that Aalborg was informed of the activities ofthe ETF. In the meeting, the members of the ETF made known their thoughts asto feasible activities. According to Aalborg, none of them was presented as beingappropriate, or as having been adopted or implemented. Nor was any decisionprepared or adopted at Baden-Baden in which Aalborg could have regarded itselfas a participant. In the light of information communicated at that meeting, Aalborgalso understood that no activity contemplated by the ETF was to be implementedwithout previous legal advice. 2654. The applicant acknowledges having participated in a meeting in Brussels on 5November 1986, with a view to the next day's meeting with Mr Sutherland, amember of the Commission. It did not take part in any other meeting connectedwith the ETF. 2655. It must, however, be pointed out that Aalborg admits having participated in themeeting of Head Delegates and representatives of the ETF in Baden-Baden on 9September 1986. 2656. Having regard to the matters set out in paragraph 2600 above, and in the absenceof any evidence put forward by Aalborg to demonstrate that it had distanced itself,for example, on being informed at the beginning of the meeting about the anti-competitive purpose assigned to the ETF, from the unlawful content of thediscussions which were to be held at that meeting, or that it had indicated to theother participants that it intended to attend it with different objects in mind,namely to prepare for the next day's meeting with members of the EuropeanParliament, it must be held that Aalborg demonstrated its support for the creationof the ETF and its anti-competitive objective or at least gave the other participantsto believe that it supported such a measure. The Commission was therefore fullyentitled to find in Article 4(1) of the contested decision that Aalborg had takenpart in the agreement setting up the ETF (see, to that effect, the case-law cited inparagraph 1353 above). 2657. Nevertheless, the contested decision does not contain any evidence supporting theconclusion that Aalborg had taken part in the agreement constituting the ETFbefore it participated in the Baden-Baden meeting. Even if it were well founded, the fact on which the Commission relies in its pleadings, namely that the ETF wasconceived and brought into being in the framework of Cembureau, of whichAalborg was a direct member, could not entitle it to take the view that Aalborg hadacceded to the agreement setting up the ETF with effect from 28 May 1986, thedate of the Rome meeting referred to in recital 25, paragraph 1, of the contesteddecision, in which Cembureau took part. Article 4(1) of the decision must thereforebe annulled, in so far as it finds that Aalborg participated in that agreement before9 September 1986. 2658. In those circumstances, the Court need not consider Aalborg's arguments alleginglack of precision in the SO and failure to state reasons for the contested decisionin so far as concerns the Commission's finding that Aalborg participated in theinfringement referred to in Article 4(1), as from 28 May 1986, the date of theRome meeting. 2659. Aalborg also denies that there was ever any link between Cembureau and the ETF.It states that most of the documents referring to the ETF use the expression'group of eight to designate the ETF. It also denies that the Head Delegatescalled upon to ratify the ETF's proposals were the official Head Delegates ofCembureau. 2660. However, there is no need to consider whether that line of argument is wellfounded. It suffices to point out that it cannot alter the finding in paragraph 2655above that Aalborg participated in the meeting held in Baden-Baden on 9September 1986, as described in recital 25, paragraphs 22 to 32, of the contesteddecision. Accordingly, that argument is not of such a nature as to undermine theconclusion reached in paragraph 2656 above as to the validity of the Commission'sfinding that Aalborg participated in the agreement setting up the ETF. 10. BDZ 2661. BDZ states that, according to the contested decision, the exports from Greecewhich triggered the measures alleged by the Commission concern Germany onlyincidentally. Moreover, BDZ was not represented in the ETF, which involvedproducers. Furthermore, none of the documents cited by the Commission in recital25 of the contested decision comes from its files. 2662. It argues that the meetings in Rome on 28 May 1986 and in Zurich/Céligny from3 to 5 June 1986 were meetings of representatives of undertakings, in which it wasinconceivable that an association should take part. Nor did the BDZ take part inthe alleged meeting of Head Delegates in Stockholm on 9 June 1986. In addition,Dyckerhoff had informed the Commission that, at that meeting, its representativehad not acted in the capacity of Head Delegate of BDZ. While Mr Steinbach, themanaging director of BDZ, was in Baden-Baden on 9 September 1986, he did not, on the other hand, participate either at the meeting of the ETF or at the meetingof the Head Delegates of Cembureau, organised in the same place on the samedate. BDZ asserts that he merely took part in a meeting organised on the fringesof the meeting of the Head Delegates intended to prepare for the meeting the nextday in Strasbourg with members of the European Parliament in order to obtaintheir support for complaints against State aid received by certain Greek cementproducers. The minutes of the meeting of Head Delegates in Baden-Baden on 9September 1986, which were never sent to BDZ, are therefore wrong in so far asthey refer to the presence of Mr Steinbach. Mr Steinbach also took part in ameeting on 17 March 1987, again in connection with lawful actions intended toraise the awareness of the Community authorities concerning the 'Greek problem.BDZ's activities connected with that question were therefore lawful and legitimate,having regard to the AITEC v Commission judgment, referred to in paragraph 2554above. 2663. Last, BDZ submits that none of the documents quoted by the Commission withregard to the ETF demonstrates that the BDZ informed its members of unlawfulmeasures adopted in connection with the ETF. 2664. It must be noted that the BDZ acknowledged at the hearing that a member ofDyckerhoff's staff took part in the meeting in Stockholm on 9 June 1986. 2665. That meeting is described as a 'Head Delegates meeting in the minutes of themeeting of Head Delegates and representatives of the ETF in Baden-Baden on 9September 1986. Moreover, it is not disputed that that meeting was held on thefringes of annual general assembly of Cembureau (contested decision, recital 25,paragraph 8). 2666. In the light of those facts, it must be concluded that participants in the Stockholmmeeting who represented an undertaking which was a member of the tradeassociation had been given, if not the official title of Head Delegate within themeaning used in Cembureau, at the very least power to represent the tradeassociation in question. The Commission was therefore justified in considering thatthe German participant at that meeting had taken part in it also in his capacity asrepresentative of the BDZ, of which Dyckerhoff was a member. 2667. Moreover, although Mr Steinbach, then general manager of the BDZ, was able toparticipate at Baden-Baden on 9 September 1986 in a meeting to prepare for thepolitical encounter the next day with members of the European Parliament inStrasbourg, the minutes of the meeting of Head Delegates and representatives ofthe ETF in Baden-Baden on 9 September 1986 nevertheless mention, among theparticipants, 'Dr B. Steinbach, Bdv Deutschen Zementindustrie, W. Germany andthat, by letter of 22 September 1986, Holderbank asked Mr Lose, of Dyckerhoff,who the abovementioned minutes state was present at the meeting in question together with Mr Steinbach, to send a copy of those minutes to Mr Steinbach(contested decision, recital 25, paragraph 33; document 33.126/19020). 2668. In the light of those factors, and in the absence of any evidence adduced by BDZto support its argument that the reference to Mr Steinbach's participation in themeeting of the Head Delegates and members of the ETF in Baden-Baden on 9September 1986 was an error, it must be concluded that the Commission wasjustified in considering that BDZ had, in the person of Mr Steinbach, taken partin that meeting. 2669. Having regard to what has been set out in paragraphs 2598 and 2600 above, andin the absence of evidence from BDZ to show that at the meetings referred to inparagraphs 2664 to 2668 above it distanced itself from the agreement setting up theETF, it must be held that the BDZ indicated its support for that agreement or atleast gave the other participants to believe that it supported it (see, to that effect,the case-law cited in paragraph 1353 above). 2670. Further confirmation of BDZ's accession to the agreement setting up the ETF isto be found in Mr Steinbach's participation in the meeting of the subgroup on'stick actions on 17 March 1987 (see record of that meeting drawn up by MrMarichal (Lafarge), entitled 'Menaces d'invasion chez les cimentiers européens: lepoint sur la situation au 15 mars 1987 (the threat of European cement producersbeing overrun: overview of the situation as at 15 March 1987); contested decision,recital 25, paragraph 47; documents 33.126/4858 to 4861), a subgroup which it hadbeen decided, at a meeting of Head Delegates and members of the ETF in Baden-Baden on 9 September 1986, to set up in order to assist the ETF, which could noton its own investigate the various dissuasive and persuasive measures contemplatedin order to counter the arrival of cheap cement on European markets (contesteddecision, recital 25, paragraph 24; documents 33.126/18858 and 18862). 2671. In those circumstances, it is immaterial that none of the documents referred to inthe contested decision with regard to the ETF was discovered at the BDZ.Similarly, it is immaterial that none of the documents demonstrates that BDZinformed its members of the unlawful measures adopted in connection with theETF. 2672. In conclusion, the Commission was fully entitled to consider, in Article 4(1) of thecontested decision, that the BDZ had taken part in the agreement setting up theETF. 2673. However, since the contested decision does not contain any evidence that the BDZhad acceded to the agreement setting up the ETF before the meeting in Stockholmon 9 June 1986, Article 4(1) must be annulled in so far as it finds that BDZparticipated in that agreement before that date. 11. Unicem 2674. Unicem claims to have participated only in the meeting of the subgroup 'stickactions of 17 March 1987. In its view, the fact that it took part in that meetingalone, during which it played only a marginal role, means that it cannot be heldresponsible for the setting-up and activities of the ETF. In any event, the object ofthat meeting, the agenda of which was not sent to Unicem, was lawful, as isevidenced by the minutes drawn up by Mr Marichal of Lafarge. The cementproducers who had attended the ETF meeting on 11 February 1987, where thesubject of relations between Italian producers and the Ferruzzi/Calcestruzzi groupwas broached, merely profited from the presence of Unicem to ask it to update theposition. Unicem merely informed them that the contract in question had not yetbeen concluded and that the Italian cement producers were contemplating relyingon the provisions of Council Regulation (EEC) No 288/82 of 5 February 1982 oncommon rules for imports (OJ 1982 L 35, p. 1). Such information cannot beconsidered to constitute an infringement of Article 85(1) of the Treaty. 2675. Unicem considers that its membership of Cembureau does not make it responsiblefor the setting-up and activities of the ETF either, in so far as the variouscommittees meeting within the ETF were not Cembureau bodies. The participantsin the meetings in Rome on 28 May 1986 and in Zurich/Céligny from 3 to 5 June1986 were, essentially, major undertakings which represented only their own specialinterests and whose unlawful conduct could not, therefore, be attributed to Unicem.The alleged meetings of Head Delegates organised within the ETF were outsidethe institutional role of the official Head Delegates of Cembureau. 2676. Unicem claims to have been unaware that a meeting was being held in Rome on28 May 1986 and never to have known what had been prepared and decided atthat meeting, or at those of Zurich/Céligny and the alleged meetings of HeadDelegates described in recital 25 of the contested decision. Accordingly, theZurich/Céligny document, which recommended solidarity between the cementproducers, had been finalised at a meeting at which Unicem was not present, witha view to another meeting, that in Stockholm on 9 June 1986 at which it was notpresent either. In those circumstances, that document cannot constitute evidenceagainst it. 2677. Last, Unicem claims not to have participated in any of the actions undertaken inconnection with the ETF. 2678. It must, however, be pointed out that, according to the minutes of the meeting ofHead Delegates and representatives of the ETF in Baden-Baden on 9 September1986, it was agreed that Mr Albert, of Unicem, was to be a member of two of thefive working subgroups, namely the subgroup 'exchange of defensive experiencesand the subgroup 'threats from other countries, set up at that meeting in orderto assist the ETF in its anti-competitive task. 2679. Mr Albert then took part in the meeting of the subgroup on 'stick actions on 17March 1987, the record of which states (recital 25, paragraph 47 of the contesteddecision; document 33.126/4860): '[Mr Albert] summarised what had already been said at the task force meetings(see note JM of 12 February 1987), pointing out however that the agreement withFerruzzi was not yet finalised. 2680. According to the 'note JM of 12 February 1987 referred to in that extract fromthe record (contested decision, recital 25, paragraph 46; documents 33.126/4911 to4913, particularly 4912), concerning the meeting of the ETF in Geneva on 11February 1987, the Italian participant had claimed, in particular, at that meetingthat 'the agreement between the cement producers and Ferruzzi has been signed,thus avoiding the threat of imports by the latter group of 1.5 [million tonnes]through 10 ports, which would have been disastrous for prices. 2681. In the light of the various pieces of information, the Commission was justified inconsidering that Unicem had agreed to the setting-up of the ETF and to the anti-competitive purpose entrusted to it, because of the interests of Italy, 'where smallassociations formed by consumers and small import/export companies had takenthe step of importing Greek cement (contested decision, recital 24, paragraph 1). 2682. In the light of what is stated in paragraphs 2507 to 2511 above, there is no needto assess at this point whether Unicem's argument denying all involvement in theactions undertaken in connection with the ETF is well founded and it must beconcluded that the Commission was justified in considering that Unicemparticipated in the agreement setting up the ETF. 2683. However, the contested decision contains no evidence to support the conclusionthat Unicem acceded to that agreement before 9 September 1986, the date of themeeting of the Head Delegates and representatives of the ETF in Baden-Badenat which Mr Albert was appointed member of two working subgroups of the ETF,an appointment which he had accepted, at least as regards the subgroup 'exchangeof defensive experiences, as is shown by his participation in the meeting of thesubgroup 'stick actions on 17 March 1987. Even if it were well founded, the facton which the Commission relies in its pleadings, namely that the agreement relatingto the setting-up of the ETF was conceived and brought into being in theframework of Cembureau, of which Unicem was a direct member, could not hidethe lack of evidence that Unicem itself had acceded to the agreement before 9September 1986. The Court must also reject the Commission's argument thatUnicem was represented at earlier meetings of, or relating to, the ETF byItalcementi, the Italian Head Delegate, which took part in those meetings: first,Unicem had its own Head Delegate (see paragraph 1409 above) and, second, theCommission cannot adduce any evidence to show that Unicem mandatedItalcementi to represent it at those meetings. Article 4(1) of the contested decision must therefore be annulled in so far as it finds that Unicem took part in thatagreement before 9 September 1986. 12. Asland 2684. Asland maintains that it took no part either in setting up the ETF or in the actionsallegedly decided within the ETF. The only evidence of its involvement in the ETF,advanced by the Commission in the contested decision, is its participation in themeeting in Rome on 28 May 1986. However, Asland did not infringe Article 85(1)of the Treaty merely by being present at that meeting, since it was nothing morethan a preliminary meeting for information and general consideration of the actualproblems likely to be of interest to all European producers, in this case, theartificial support granted by the Hellenic Republic to its cement producers. 2685. Asland claims that, contrary to the Commission's submissions in recital 25,paragraph 9, of the contested decision, it was not represented at the meeting ofHead Delegates in Stockholm on 9 June 1986. Furthermore, the Commission didnot put forward in the SO, at the hearing or in the contested decision, any evidenceof its presence at that meeting. Asland maintains that the minutes of its boardmeeting of 26 June 1986 (document 33.322/1562), which the Commission now citesin its defence in order to try to establish Asland's presence at the meeting inStockholm, are inadmissible, as they were not referred to by the Commission eitherduring the administrative procedure or in the contested decision. In any event, theydo not prove that Asland took part in the ETF. Asland also challenges the variousarguments used by the Commission in the contested decision in attempting toestablish its presence at the Stockholm meeting. 2686. Last, Asland observes that no member of its staff appears on the list of personswho were members of the various sub committees of the ETF and that two of theSpaniards who did appear on that list belong to undertakings which were not finedin the contested decision. 2687. The Court points out that Asland acknowledges having participated in the meetingin Rome on 28 May 1986. 2688. As has been stated (see paragraph 2608 above), the object of that meeting was tosettle a common response to the Greek industry's decision to export cement toWestern Europe. The ETF was thus conceived at that meeting. 2689. Consequently, there is no need rule on whether Asland's arguments denying itsparticipation in the meeting in Stockholm on 9 June 1986 are well founded or, inthe light of what has been stated in paragraphs 2507 to 2511, to examine therelevance of its arguments denying any involvement in the actions decided upon inconnection with the ETF, and it must be held that, in the absence of any evidence showing that Asland indictated otherwise at the meeting of 28 May 1986 in Rome,Asland expressed its support, from the beginning, for the setting-up of the ETF andits anti-competitive object, or at least gave the other applicants the impression thatit supported such a measure. 2690. The Commission was therefore fully entitled to find in Article 4(1) of the contesteddecision that Asland had participated in the agreement setting up the ETF as from28 May 1986 (see, to that effect, the case-law cited in paragraph 1353 above). 2691. The fact that some undertakings, whose members appear in the lists of the workingsubgroups of the ETF set up at the meeting of Head Delegates and representativesof the ETF in Baden-Baden on 9 September 1986, were not found by theCommission, in Article 4(1) of the contested decision, to have committed anyinfringement cannot make it possible to disregard the infringement which Aslandis found to have committed, provided that it has been properly established (see, tothis effect, Woodpulp II, cited in paragraph 106 above, paragraph 146). For theforegoing reasons, the Court concludes that the Commission was fully entitled tofind in the contested decision that Asland participated in the agreement setting upthe ETF. 13. Uniland 2692. Uniland denies having taken part in the meetings of Head Delegates of the ETF.It claims that, as it told the Commission during the investigation, Mr Rumeu waspresent in his personal capacity, as an expert and not as representative of Uniland,at the meetings in Baden-Baden on 9 September 1986 and in Brussels on 6November 1986. Accordingly, it denies that the reference to 'Mr Rumeu,Cementos Uniland, which appears in the minutes of the meeting in Baden-Badenon 9 September 1986, can prove that it participated it that meeting. 2693. Mr Rumeu's presence at those two meetings was, in any event, marginal andsporadic. The statements made on behalf of Spain during the meeting on 9September 1986 were made by the two Spanish members of the ETF who werepresent, Messrs Félix and Bruguera. In any event, those statements merely alludedbriefly to imports into Spain of cement from Tunisia. Furthermore, Mr Rumeuneither asked for nor received the minutes of that meeting. With regard to themeeting in Brussels on 6 November 1986, Mr Rumeu's participation consistedmerely of some vague general observation concerning the situation in Spain. 2694. Uniland asserts that Mr Rumeu did not take part in any meeting of the ETF afterthe meeting on 6 November 1986, nor did he take part in the meeting of the ETFin Geneva on 21 October 1986. Therefore, it argues, the statements in the minutesof that meeting concerning a discussion which allegedly took place between Mr Félix and Mr Rumeu cannot be relied upon as against Mr Rumeu nor, a fortiori,against Uniland. 2695. It must, however, be pointed out that the minutes of the meeting of the HeadDelegates and representatives of the ETF in Baden-Baden on 9 September 1986refers to the participation of 'Mr P. Rumeu, Cementos Uniland, Spain. In thelight of that fact, and in the absence of any evidence to show that Mr Rumeu hadtold the other participants that he was taking part in that meeting in a personalcapacity, the Commission was justified in considering that the person concerned,even if he did attend that meeting on account of his special experience in the field,did represent Uniland at that meeting. 2696. It is clear from the notes of the meeting on 6 November 1986 that it was a meetingof 'EEC cement industry representatives (contested decision, recital 25, paragraph39; document 33.126/19007). The Commission was therefore entitled to concludethat Mr Rumeu had taken part in that meeting not in his personal capacity, but inhis capacity as representative of the European cement industry and, therefore, inparticular, of Uniland, which at that time employed him. 2697. Having regard to what has been set out in paragraphs 2600 and 2602 above, andsince Uniland merely states that at the two meetings concerned Mr Rumeu playeda marginal role, but does not adduce the slightest evidence showing that he hadopenly distanced himself from the anti-competitive purpose pursued, theCommission was justified in considering that Uniland had shown its support for thesetting-up of the ETF and for its anti-competitive object or at least that it hadgiven the other participants the impression that it supported that measure. 2698. The Commission was therefore fully entitled to find in Article 4(1) of the contesteddecision that Uniland participated in the agreement on the setting-up of the ETF(see, to that effect, the case-law cited in paragraph 1353 above). 2699. However, there is no evidence in the contested decision to support the conclusionthat Uniland had acceded to the agreement setting up the ETF before taking partin the meeting of Head Delegates and representatives of the ETF in Baden-Badenon 9 September 1986. Even if, as the Commission submits in its pleadings, Unilandwas represented by the Spanish participants in meetings preceding or relating tothe ETF, it is nevertheless the case that the first tangible sign of its own accessionto the agreement on the setting-up of the ETF was on 9 September 1986. Article4(1) of the contested decision must therefore be annulled, in so far as it finds thatUniland participated in that agreement before that date. 2700. Uniland goes on to observe that, in stating that Mr Rumeu represented bothHispacement and Oficemen, the Commission's reasoning became confused andcontradictory, using the same fact, namely, the presence of Mr Rumeu in twomeetings concerning the ETF, to impose penalties on different undertakings. 2701. It must, however, be observed that, with regard to Hispacement, the Commissionnotes the presence of Mr Fernandez, a member of that company, at the meetingsof 3 to 5 June 1986, at which the Zurich/Céligny document was finalised. This factwas obviously crucial in determining whether Hispacement participated in aninfringement found to exist by Article 4(1) of the contested decision. With regardto Oficemen, the Commission relies not only on the presence of Mr Rumeu 'at theHead Delegates meeting ... of 9 September 1986 and 6 November 1986, but alsoon the presence of a 'Spanish Head Delegate at the meeting in Stockholm on 9June 1986, and also on 'the fact that Mr Andia [Oficemen] was appointed memberof this subgroup [stick measures] at the Head Delegates meeting of 9 September1986 ... and above all by the fact that the record of the meeting [17 March 1987 ofthat subgroup] states that Mr Andia was present ... (contested decision, recital 29,paragraph 3). 2702. In any event Uniland's assertions cannot undermine the analysis in paragraphs 2695to 2698 concerning the validity of the Commission's finding that Unilandparticipated in the infringement referred to in Article 4(1) of the contesteddecision. 2703. Finally, Uniland maintains that the Commission discriminated against it by findingthat in the meetings of 9 September and 6 November 1986 Mr Rumeu representedboth it and Oficemen, whereas, when it examined the contacts which therepresentatives of the Spanish and Portuguese industries had had (contesteddecision, recital 49, paragraph 1), Oficemen alone was described as representingthe Spanish industry as a whole, and there was no finding of participation by theundertakings with which the participants in those contacts were associated. 2704. However, Uniland's argument cannot invalidate the finding of an infringement inArticle 4(1) of the contested decision, since its participation in that infringementwas properly established by the Commission (see, to that effect, Woodpulp II, citedin paragraph 106, paragraph 146 above). 14. Oficemen 2705. Oficemen states that, according to the contested decision (recital 29, paragraph 3),the Commission deduces its involvement in the ETF, first, from the participationof a Spanish Head Delegate at the meetings of 9 June, 9 September and 6November 1986 and, second, from the participation of Mr Andia, then chairmanof Oficemen, at the meeting of the 'defensive measures subgroup on 17 March1987. 2706. Oficemen denies, however, having been present or represented at the meeting inStockholm on 9 June 1986. With regard to the meetings on 9 September and 6 November 1986, it asserts that Mr Rumeu, who was present at those meetings, wasappointed Spanish Head Delegate to Cembureau only in November 1988. 2707. So far as concerns the meeting of the 'defensive measures subgroup on 17 March1987, Oficemen claims that, according to a statement sworn by Mr Andia, theproposal to appoint him as a member of that subgroup at the meeting of HeadDelegates and representatives of the ETF in Baden-Baden on 9 September 1986was made without his knowledge and against his will. Moreover, Mr Andia neverknew that the meeting of 17 March 1987 was part of the activities of the ETF, ofwhose existence he was indeed unaware. Finally, he did not attend that meeting,his flight having been delayed. Therefore, neither he nor Oficemen could haveknown about the matters debated at that meeting and thus, indirectly, about theexistence of the ETF. The fact that Mr Andia is mentioned among those takingpart in that meeting might be due to confusion between persons taking part andpersons invited. Similarly, the fact that the record of that meeting contains certaininformation concerning imports of cement into Spain does not, according toOficemen, suffice to prove that Mr Andia participated in that meeting, since thatinformation was practically identical to the information in a handwritten note by thesame writer (Mr Marichal) concerning the meeting of the ETF of 11 February1987. In addition, the record of the meeting of 17 March 1987 does not relate anyspoken contribution made by Mr Andia, whereas it does report the speeches ofother participants. 2708. Concerning those various points, the Court points out that Oficemen does not denythat a Spanish participant took part in the meeting in Stockholm on 9 June 1986. 2709. In the light of the findings made in paragraph 2665 above, it must be concludedthat participants who represented an undertaking which was a member of a tradeassociation were given, if not the official title of Head Delegate within the meaningof that term in Cembureau, then at least power to represent the association inquestion. 2710. The Commission was therefore justified in considering that the Spanish participant,whoever he was, represented Oficemen also (contested decision, recital 29,paragraph 3). Having regard to what has been set out in paragraph 2598 above, theCommission was therefore able to find that Oficemen had, through theparticipation of the Spanish representative at the Stockholm meeting, manifestedits approval of the setting-up of the ETF and its anti-competitive object, or at leastgave that impression to the other participants through lack of any indication to thecontrary (see, to that effect, the case-law cited in paragraph 1353 above). 2711. So far as concerns the meeting of Head Delegates and representatives of the ETFin Baden-Baden on 9 September 1986, it is clear from the minutes of that meetingthat three Spanish representatives (Messrs Rumeu, Félix and Bruguera) werepresent and that the name of Mr Andia, who, according to the information supplied by Oficemen at the hearing, was the general manager of the association, wasproposed as a member of one of the working subgroups, called 'exchange ofdefensive experiences, which it had been decided to set up in order to assist theETF in its anti-competitive task. 2712. It was not possible to put forward Mr Andia's name because, among the threeSpanish participants in the meeting, there was at least one person performingfunctions within the Spanish association which, in his opinion, authorised him to putforward the name of the general manager of Oficemen when the ETF workingsubgroups were being set up. Even if none of the three Spanish participants had,at that time, the official title of Spanish Head Delegate of Cembureau, Oficemenwas therefore represented at that meeting, which dealt in turn with the setting-upof the ETF, its anti-competitive purpose, its composition, the organisation of itswork, and the various dissuasive and persuasive measures entrusted to itsconsideration (see paragraph 2600 above). In the absence of evidence to thecontrary, the Commission was entitled to find that Oficemen had once againexpressed its support for the setting-up of the ETF or at least given that impressionto the other participants (see to that effect the case-law cited in paragraph 1353above). 2713. The meeting in Brussels on 6 November 1986 was a meeting of 'EEC cementindustry representatives, at which Mr Rumeu reported on developments in Spain(see the notes concerning that meeting; contested decision, recital 25, paragraph39; document 33.126/19007). The Commission was therefore justified inconsidering that Mr Rumeu, even though he did not attend the meeting in hiscapacity as Spanish Head Delegate in the official sense of that term, hadrepresented, in addition to Uniland, his then employer, the entire Spanish market,that is to say Oficemen also. In the light of what has been set out in paragraph2602 above, the Commission was thus entitled to consider that Oficemen, throughMr Rumeu's participation in that meeting, had again expressed its support for thesetting-up of the ETF, or at least given that impression to the other participants(see, to that effect, the case-law cited in paragraph 1353 above). 2714. The Court cannot accept the various arguments put forward by Oficemen to denythat Mr Andia took part in the meeting of 17 March 1987 of the subgroup 'stickactions. 2715. The record, drawn up on 25 March 1987 by Mr Marichal, the coordinator of thatsubgroup, mentions the participation of 'Mr Andia (Spain), as the sole Spanishrepresentative, and it attributes very specific statements to him, in particular on thequestion of Greek exports ('invasion threats to European cement producers:overview of the situation at 15 March 1987; contested decision, recital 25,paragraph 47; documents 33.126/4858 to 4860): 'New threat posed by the smallest Greek producer, Xalips. At the moment theother Greek producers show no wish to offload in Spain. It is thought that theyintend thus to avoid provoking the only cement producers capable of routing themin the near East and North Africa (their principal markets) ... 2716. Contrary to Oficemen's submissions, those statements differ fundamentally from theinformation about imports into Spain contained in the handwritten note by MrMarichal concerning the meeting of the ETF on 11 February 1987 (contesteddecision, recital 25, paragraph 46; document 33.126/4911). 2717. In the light of that evidence, the Commission was entitled to find in recital 29,paragraph 3, of the contested decision that Mr Andia took part in the meeting on17 March 1987 of the working subgroup 'stick actions. 2718. The remarks made at that meeting by Mr Andia on the problem of Greek exportsshow that he was perfectly aware of the objective assigned to that subgroup, andalso of the overall strategy to combat destabilising imports into Western Europe,primarily those of Greece. 2719. In conclusion, the Commission was fully entitled to find in Article 4(1) of thecontested decision that Oficemen participated in the agreement setting up the ETF. 2720. However, since Oficemen's accession to that agreement is established only as from9 June 1986, the date of the Stockholm meeting, Article 4(1) must be annulled inso far as it finds that Oficemen participated in the infringement before that date. 2721. Oficemen goes on to observe that the Commission did not take the view thatpresence on the list of participants in the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986 was sufficientevidence to conclude that the undertakings listed in that document took part in theETF's activities, since many of those undertakings were not referred to in Article4(1) of the contested decision. 2722. However, the fact that the Commission did not find that some of the undertakingsidentified among the participants in the meeting concerned were involved in theinfringement found in Article 4(1) of the contested decision does not relieveOficemen of responsibility for that infringement, since it was properly establishedby the Commission (see, to that effect, Woodpulp II, cited in paragraph 106 above,paragraph 146). For the foregoing reasons, the Commsiion was fully entitled to findin the contested decision that Oficemen participated in the agreement setting upthe ETF. 2723. Last, Oficemen claims that only three national associations have been accused oftaking part in the agreement setting up the ETF, namely, SFIC, BDZ and itself. Unlike Oficemen, the French and German associations were represented at the ETF meetings, the former by its chairman and the second by its manager. Oficemen's participation was, in reality, based on the presence at the meetings inStockholm on 9 June 1986, in Baden-Baden on 9 September 1986 and in Brusselson 6 November 1986 of a Spanish Head Delegate. The presence of the Belgianand British Head Delegates was not deemed sufficient to render FIC and BCAliable for participation in the ETF. Oficemen therefore considers itself to havebeen treated unequally. 2724. Nevertheless, it must be borne in mind that Mr Andia, of Oficemen, attended themeeting of the subgroup 'stick actions on 17 March 1987 (see paragraphs 2715and 2716 above). Like SFIC through its chairman, Mr Laplace, and BDZ throughits general manager, Mr Steinbach, Oficemen therefore played a direct part in theinfringement referred to in Article 4(1) of the contested decision. 2725. The fact that the Commission did not find that that infringement had beenestablished in the cases of the Belgian and British associations does not absolveOficemen of liability for that infringement, since, as follows from the reasoning setout in paragraphs 2708 to 2719 above, the participation of Oficemen in theagreement setting up the ETF has been properly established (see, to that effect,Woodpulp II, cited in paragraph 106 above, paragraph 146). 15. Irish Cement 2726. Irish Cement (T-60/95) denies any direct involvement in the unlawful activities ofthe ETF. It states that, according to the evidence presented by the Commissionin recital 25 of the contested decision, the ETF was set up and run by a group ofeight major European cement producers. Irish Cement claims that it did notparticipate in any of their meetings. The presence of its representative, Mr Quirke,at the meetings in Baden-Baden on 9 September 1986, in Strasbourg on 10September 1986 and in Brussels on 6 November 1986 was justified by lawfulattempts to lobby members of the Community institutions. 2727. The purpose of the meeting in Baden-Baden on 9 September 1986 was to organisethe meeting arranged the next day in Strasbourg with members of the EuropeanParliament on the question of export aids granted by the Hellenic Republic, ameeting in which Irish Cement was particularly involved. Irish Cement states thatit did not receive the agenda for that meeting, examined in recital 25, paragraphs24 to 32, of the contested decision. 2728. The meeting in Brussels on 6 November 1986 prepared for a meeting with MrSutherland, the Commissioner responsible for competition policy, and sought tomake the Commission change its decision authorising the export aid granted by theHellenic Republic to its cement producers. The presence of a representative ofIrish Cement was due simply to the fact that Mr Sutherland was Irish. Irish Cement claims to have had no reason to suspect that that meeting had anyunlawful object, having regard to the statement of Sir John Milne that, 'anyrestructuring of a European cement industry suffering from chronic overcapacitymust be carried out in compliance with the competition rules (contested decision,recital 25, paragraph 40; document 33.126/19007). 2729. Irish Cement further states that it did not take part in the ETF meeting on 9 June1986, held on the fringe of the general assembly of Cembureau. Furthermore,various documents [the invitation from Holderbank to the sixth ETF meeting inBaden-Baden on 9 September 1986 (contested decision, recital 25, paragraph 21;document 33.126/18848); Holderbank's letter of 22 September 1986 to Blue Circle(contested decision, recital 25, paragraph 33; document 33.126/19024)] demonstratethat Irish Cement was not a member of 'the group of eight constituting the ETF. 2730. It must, however, be pointed out that Irish Cement acknowledges having beenrepresented by Mr Quirke at the meeting of Head Delegates and members of theETF in Baden-Baden on 9 September 1986. While discussions laying the groundfor the political meeting the next day with members of the European Parliamentmay well have taken place in connection with, or on the fringe of, that meeting, theminutes of the meeting are nevertheless exclusively concerned with discussionsdedicated to the setting-up and the composition of the ETF, the organisation of itstasks and the consideration of the various dissuasive and persuasive measuresentrusted to it (see paragraph 2600 above). 2731. Furthermore, Irish Cement was represented at the meeting in Brussels on 6November 1986. While the notes of that meeting actually show that discussionswere held concerning the meeting with Mr Sutherland, they also make it clear thatit was agreed that the ETF was to continue to meet and to examine developmentsin imports into Western European markets of cement from Greece (see paragraph2602 above). 2732. As has already been pointed out (see paragraph 2600 above), the objective of theETF was set out in the following terms at the beginning of the meeting of HeadDelegates and representatives of the ETF in Baden-Baden on 9 September 1986: 'The ETF was set up in order to examine possible dissuasive and persuasivemeasures to counter the arrival of cheap cement on European markets (primarilyagainst Greek imports into the United Kingdom) and to submit recommendationsto the Head Delegates. 2733. Irish Cement could not, therefore, have been unaware that, at the two meetings atwhich it was present, the discussions in which it took part concerning the ETF andits activities pursued an objective contrary to Article 85(1) of the Treaty. 2734. Moreover, it has put forward no evidence to show that, at those meetings, it openlydistanced itself from the anti-competitive objectives of the ETF or informed theother participants that it was taking part in them with different objects in mind,namely the preparation of the political overtures contemplated towards theCommunity authorities. 2735. In those circumstances, the Commission was justified in taking the view that IrishCement had shown its support for the setting-up of the ETF and for its anti-competitive object, or at least that it had given that impression to the otherparticipants. 2736. The Commission was therefore fully entitled to find, in Article 4(1) of the contesteddecision, that Irish Cement had taken part in the agreement setting up the ETF(see, to that effect, the case-law cited in paragraph 1353 above). 2737. However, the decision contains no evidence to support the conclusion that IrishCement acceded to the agreement setting up the ETF before it took part in themeeting of Head Delegates and representatives of the ETF in Baden-Baden on 9September 1986. Even if it were well founded, the fact on which the Commissionrelies in its pleadings, namely that the agreement relating to the setting-up of theETF was conceived and brought into being in the framework of Cembureau, ofwhich Irish Cement was a direct member, did not entitle the Commission toconclude that Irish Cement had acceded to the agreement from 28 May 1986, thedate of the Rome meeting, referred to in recital 25, paragraph 1 of the contesteddecision, in which Cembureau took part. Article 4(1) must therefore be annulledin so far as it finds that Irish Cement participated in that agreement before 9September 1986. 2738. Irish Cement goes on to challenge the various items cited by the Commission inrecital 24, paragraph 3, of the contested decision as evidence that the ETF was partof Cembureau. It also contends that the Commission incorrectly treated themeetings of Head Delegates of the ETF as being the same as meetings of HeadDelegates of Cembureau. 2739. However, there is no need to consider whether that line of argument is wellfounded, as it suffices to point out that it cannot alter the findings in paragraphs2730 to 2735 regarding Irish Cement's participation in the meetings described inrecital 25, paragraphs 22 to 33 and 39 to 43, of the contested decision. Accordingly, that line of argument cannot undermine the conclusion reached inparagraph 2736 above as to the correctness of the Commission's finding that IrishCement participated in the agreement setting up the ETF. 2740. Last, Irish Cement claims that the contested decision gives no reasons as regardsits alleged direct participation in the ETF. 2741. However, in the summary of facts relating to the ETF, the Commission finds thatMr Quirke was present at the 'meeting of Head Delegates in Baden-Baden on9 September 1986 (contested decision, recital 25, paragraph 23), and also at themeeting in Brussels on 6 November 1986 (contested decision, recital 25, paragraph39). 2742. In the Commission's legal assessment of the facts relating to the ETF, it takes intoconsideration 'the claim made by certain undertakings and associations ofundertakings that, not having participated in the task force meetings or subgroupmeetings, but only in the meetings of the Head Delegates, they cannot be heldresponsible for the measures examined (recital 53, paragraph 4). 2743. The Commission explains (same paragraph): 'Even if they did not participate in the task force meetings, the task forceconsisting of a restricted group, they did participate in the meetings of the HeadDelegates at which the task force proposals were endorsed and the measuresadopted. As stated in recital 44, the fact that the composition of the various bodiesmay vary from one to another does not mean that all the activities of the partiesto such structure are not attributable to all the members, since the structure actswith and is based on the assistance of all the members. 2744. Sufficient reasons were therefore given in the contested decision for theCommission's finding that Irish Cement infringed the Treaty by participating in theagreement setting up the ETF. 16. Italcementi 2745. Italcementi stresses the autonomous and temporary nature of the ETF. Itchallenges the various pieces of evidence on which the Commission bases its case,in recitals 24, paragraph 3, and 53, paragraphs 1, 3 and 7, of the contested decision,in establishing a link between the ETF and the Cembureau agreement. It addsthat, according to the very terms of the contested decision, a considerable numberof the alleged parties to the Cembureau agreement did not participate in the ETFagreement found in Article 4. 2746. There is no need to consider whether that argument is well founded, as it cannotrefute the Commission's findings in recital 25 of the contested decision, which arenot challenged by Italcementi, namely, that the Italian undertaking took part in thefollowing meetings:  the meeting in Rome on 28 May 1986 (contested decision, recital 25,paragraph 1: document 33.126/18771);  the meeting of the Zurich/Céligny working group on 4 June 1986 (contesteddecision, recital 25, paragraph 2; document 33.126/18756);  the meeting in Stockholm on 9 June 1986 (contested decision, recital 25,paragraph 9);  the meeting of the ETF on 17 June 1986 in London (contested decision,recital 25, paragraph 11; document 33.126/18756);  the meeting of the ETF on 2 July 1986 in Milan (contested decision, recital25, paragraph 12; documents 33.126/18756, 18757 and 18791 to 18793);  the meeting of the ETF on 8 July 1986 in Geneva (contested decision,recital 25, paragraph 13; documents 33.126/18757 and 18795);  the meeting of the ETF on 19 August 1986 in Geneva (contested decision,recital 25, paragraph 17; documents 33.126/18757 and 18758 and Annex 15to the reply to the SO by Aker and EUROC);  the meeting of the ETF on 9 September 1986 in Baden-Baden (contesteddecision, recital 25, paragraph 21; document 33.126/18848);  the meeting of the Head Delegates and representatives of the ETF inBaden-Baden on 9 September 1986 (contested decision, recital 25,paragraph 23; document 33.126/18857);  the meeting of the ETF on 21 October 1986 in Geneva (contested decision,recital 25, paragraph 34; documents 33.126/18758, 18895, 18896 and 18900);  the meeting of EEC cement industry representatives on 6 November 1986in Brussels (contested decision, recital 25, paragraph 39; document33.126/19007);  the meeting of the ETF on 9 January 1987 (contested decision, recital 25,paragraph 44; document 33.126/18759);  the meeting of the ETF on 11 February 1987 in Geneva (contested decision,recital 25, paragraph 45; documents 33.126/18760, 18929 and 18934). 2747. In the light of what has been set out in paragraphs 2598, 2600, 2602 and 2608above and having regard to the fact that Italcementi took part in the meetings inRome on 28 May 1986 and in Stockholm on 9 June 1986, in the meeting of HeadDelegates and representatives of the ETF in Baden-Baden on 9 September 1986and the meeting in Brussels on 6 November 1986, compounded, first, by itscontribution to the finalisation of the Zurich/Céligny document and, secondly, by its capacity of direct member of the ETF, the Commission was fully entitled toconsider that Italcementi had approved, from the beginning, the setting-up of theETF and its anti-competitive objective. The Commission was accordingly justifiedin finding, at Article 4(1) of the contested decision, that Italcementi acceded to theagreement setting up the ETF as from 28 May 1986. 2748. Next, Italcementi claims to have played a marginal role in the ETF. It alleges thatit was never involved in the alleged dissuasive and persuasive measures. Onaccount of its purely regional position on the Italian market, it had no interest inparticipating in such actions, nor any actual opportunity to do so. It had at itsdisposal neither harbour facilities, nor means of transport, nor outlets throughwhich to channel the products that it might have bought from Greek cementproducers. The only things that could possibly be laid to its account are thedrawing up of a report on the possibility of exporting to Greece and the holdingof shares in Interciment for 21 months. However, neither of these activities led itto infringe Article 85(1) of the Treaty. Italcementi also denies having taken partin concerted practices and an agreement intended to lure Calcestruzzi, a majorItalian customer, away from Greek producers. 2749. In the light of what has been set out in paragraphs 2507 to 2511 above there is noneed to assess the merits of Italcementi's submissions, first, denying any unlawfulinvolvement in the actions contemplated by the ETF and, second, defining thescope of its commitment to Interciment, as it must be pointed out that, accordingto the evidence set out in paragraph 2746 above, Italcementi is one of theundertakings at the origin of the ETF initiative and of the programme of dissuasiveand persuasive measures envisaged in order to combat destabilising imports intoWestern Europe and that it then took part, in its dual capacity as direct memberof the ETF and a Head Delegate, in all the meetings of or concerning the ETForganised between 17 June 1986 and 11 February 1987. The argument of theItalian undertaking that its role was marginal must therefore be rejected. 2750. Furthermore, Italcementi, which does not deny that 'at the end of 1985/early 1986,Greek producers looked towards ... Italy, where small associations formed byconsumers and small import/export companies had taken the step of importingGreek cement (contested decision, recital 24, paragraph 1), cannot reasonablyclaim to have had no interest in participating in the ETF. 2751. Italcementi goes on to allege a lack of reasoning concerning the date used by theCommission as the starting point for participation in the single and continuous ETFagreement, namely, 28 May 1986. The Commission itself finds, in recital 25,paragraph 10 of the contested decision, that it was decided to set up the ETF atthe meeting in Stockholm on 9 June 1986. 2752. As regards that question, the Court points out (see paragraphs 2506 to 2511 above)that, while in its legal assessment (recital 53 of the contested decision) the Commission puts forward the various facts described in recitals 25 to 28 of thecontested decision as constituting the subject-matter of a single and continuousagreement intended to counter imports into Western Europe (primarily those fromGreece), that agreement was referred to in Article 4, not as such, but as constitutedby its various components. It is in that context that 28 May 1986 is fixed as thestarting point for the infringement found in Article 4(1) of the contested decisionin relation to the agreement on the setting-up of the ETF. 2753. The date of 28 May 1986 is the date of the Rome meeting, as regards which theCommission finds in recital 25, paragraph 1, of the contested decision that therepresentatives of eight major European cement producers, including Italcementi,agreed inter alia to 'take rapid stock of the defensive and support measures tocounter the decision of the Greek cement industry to export to Western Europeand to create a working party 'to prepare ... documents on possible defensivemeasures. Those are sufficient reasons for the decision of the Commission to find,in Article 4(1), that Italcementi participated in the agreement setting up the ETFas from 28 May 1986. The fact that the Commission finds, in recital 25, paragraph10, of the contested decision, that it was 'formally decided to set up the ETF atthe meeting in Stockholm on 9 June 1986 cannot, in this regard, be deemed toshow inadequate or contradictory reasoning on that point. 2754. Italcementi's argument must therefore be rejected. 17. Aker and EUROC 2755. Aker and EUROC claim that they did not take part in any meeting of the ETF andthat Scancem took part in several meetings of or concerning the ETF in order tosafeguard its own interests, not to represent those two applicants. 2756. They add that, in any event, Scancem's participation in the ETF discussions did notaim to safeguard its interests in the Community, since at that time it did not haveany. Scancem had in fact taken part in ETF discussions with a lawful purpose,namely, to support its international activity outside the Community. For Scancem,the availability of surplus cement and clinker from Greece represented acommercial opportunity and not a threat, Scancem had to satisfy growing demandin its overseas operations. For Scancem, the real threat was the actionscontemplated by the ETF to counter imports from Greece and, in particular, thesetting-up of Interciment, whose arrival on the international scene posed the riskof higher cement and clinker prices on its national markets, thereby deprivingScancem of an advantageous source. By taking part in the ETF meetings, Scancemdid not, therefore, intend to distort competition and trade on the market, butrather to ensure that its network was supplied at favourable prices and to watchover the situation created by the setting-up of Interciment. 2757. That line of argument cannot be accepted. 2758. It is not disputed that, at the material time, Aker and EUROC controlled Norcemand Cementa respectively. In May 1986, those two groups decided to merge theirinternational activities by creating Scancem, a joint subsidiary in which they haveequal shares (contested decision, recital 5, paragraph 2). 2759. At the hearing, Aker and EUROC acknowledged that Cementa, Norcem andScancem represented them at the meetings in which they took part during theperiod under consideration. In the person of Mr Linderoth, Cementa took part inthe meeting in Stockholm on 9 June 1986 (contested decision, recital 25, paragraph9). In the person of Mr Rabl, Norcem took part in the meeting of Head Delegatesand representatives of the ETF in Baden-Baden on 9 September 1986 (contesteddecision, recital 25, paragraph 23; document 33.126/18857). In the person of MrUlestig, Scancem took part in the meetings of the ETF of 19 August 1986(contested decision, recital 25, paragraph 14; Annex 15 to the reply to the SO byAker and EUROC), of 21 October 1986 (recital 25, paragraph 34 of the contesteddecision; document 33.126/18895) and of 11 February 1987 (contested decision,recital 25, paragraph 45; document 33.126/18933).                                                                     2760. As set out in paragraphs 2598 and 2600 above, a concurrence of wills wasexpressed regarding the setting-up of the ETF at the meeting in Stockholm on 9June 1986 and at the meeting of Head Delegates and representatives of the ETFin Baden-Baden on 9 September 1986. Representatives of Aker and EUROCwere, moreover, present at meetings of the ETF on 19 August 1986, 21 October1986 and 11 February 1987 (see the previous paragraph). Since those twoapplicants have not put forward any evidence to show that, at those variousmeetings, their representatives openly distanced themselves from the anti-competitive objective pursued by the ETF, even though that objective had beenexpressly pointed out to them at the meeting in Geneva on 19 August 1986 and atthe meeting in Baden-Baden on 9 September 1986, or that they had informed theother participants that they were attending those meetings with different objects inmind, the Commission was justified in considering that Aker and EUROC hadindicated their support for the setting-up of the ETF and its anti-competitive objector at least given that impression to the other participants (see, to that effect, thecase-law cited in paragraph 1353 above). 2761. The explanations now put forward by Aker and EUROC as to the alleged lawfulreasons which led to Scancem taking part in the ETF meetings are not borne outby any evidence to suggest that, at the time, Scancem told the other participantsof the special reasons for its presence at those meetings. 2762. On the contrary, they are contradicted by the extract from the record of themeeting of the EPC on 13 May 1987, drafted by Mr Marshall of Blue Circle, and recited in recital 24, paragraph 3, of the contested decision (documents33.126/11344 and 11345): 'Cembureau Task Force. I was approached on two occasions to try to make surethat the Cembureau Task Force continues in operation as a means of keeping upour pressure on the Greeks. Scancem ... felt that as 80% of the cement to the USAis handled by four European organisations  Blue Circle, Lafarge, Holderbank andScancem  some pressure could be brought to bear on the Greeks. 2763. Moreover, as will be found in paragraph 3013 below, Aker and EUROC agreed totake up shares in Interciment, which wholly undermines their argument that theirpresence at the meetings referred to in paragraph 2759 above was due to theirconcerns regarding the appearence of Interciment on the scene. 2764. In conclusion, the Commission was justified in finding in Article 4(1) of thecontested decision that Aker and EUROC took part in the agreement on thesetting-up of the ETF. However, since there is no evidence in the decision tosupport the conclusion that Aker and EUROC had acceded to the agreementsetting up the ETF before the meeting in Stockholm on 9 June 1986, Article 4(1)of the decision must be annulled in so far as it finds that they participated in thatagreement before that date. 2765. Aker and EUROC also deny that there was any link between the ETF andCembureau. They challenge the evidence put forward on this point by theCommission in recital 24, paragraph 3, of the contested decision, stating that thereis an almost total absence of correspondence between the meetings of the ETF andthe meetings of Cembureau, or between the participants in the ETF meetings andthe Head Delegates of Cembureau. They add that if, as the Commission claims,the ETF were an emanation of Cembureau, constituting a breach of Article 85(1)of the Treaty, that breach should have been charged against all the companiesrepresented at Cembureau level. 2766. There is no need to consider whether that line of argument is well founded, as itis sufficient to point out that it cannot alter the findings in paragraphs 2759 to 2763above concerning the participation of Aker and EUROC in several meetings of orconcerning the ETF. Consequently, that argument cannot undermine theconclusion reached in paragraph 2764 above as to the validity of the Commission'sfinding that Aker and EUROC took part in the agreement setting up the ETF. 18. Cementir 2767. Cementir claims to have been absolutely unconnected with the setting-up andactivities of the ETF. It was never invited to the meetings described in recital 25 of the contested decision, never took part in them, and was never informed of theircontent. 2768. It must be stated that Cementir did not, in fact, take part in any of the meetingsof or concerning the ETF, to which the Commission refers in recital 25 of thecontested decision. 2769. In recital 53, paragraph 12, of the contested decision, and in its defence in Case T-87/95, the Commission claims that Cementir demonstrated its support for thegeneral ETF agreement by participating in 'one of the most important measuresdecided on by the [ETF], namely, the measures to defend the Italian market. 2770. However, as has been stated (see paragraphs 2507 to 2511 above), Article 4(1) ofthe contested decision refers only to the agreement relating to the setting-up of theETF, and not to the 'single and continuous agreement relating to the setting-up ofthe Cembureau Task Force or European Task Force and the various measuresadopted at the meetings to eliminate imports into Western Europe and, inparticular, to prevent imports of Greek cement into the Member States (recital53, paragraph 9). Furthermore, it must be observed that the Commission has notattributed to Rugby, Castle, Titan and Heracles responsibility for that agreement,even though it finds in Article 4(4) that they participated 'within the framework of[the ETF] [recital 65, paragraph 3(c) of the contested decision] in persuasivemeasures (carrot actions) contrary to Article 85(1) of the Treaty. In this regard,the Commission (reply of 22 June 1998 to the written question of the Court of 27May 1998 in Case T-87/95) explains that those four undertakings did not take partin any of the meetings described in recital 25 of the contested decision, so that itconsidered that it did not have sufficient evidence of their acquiescence in thesetting-up or the existence of the ETF itself. 2771. In those circumstances, the Commission was not justified in inferring that thealleged participation of Cementir in measures to defend the Italian market againstimports from Greece constituted evidence of participation by Cementir in theinfringement found in Article 4(1) of the contested decision. 2772. In its defence in Case T-87/95, the Commission advances various arguments. 2773. First, it claims that an Italian Head Delegate, from Italcementi, was present at themeetings of Head Delegates during which important decisions concerning the ETFwere adopted. 2774. However, as has already been pointed out (see paragraph 1409 above), Cementir,as a direct member of Cembureau, had its own Head Delegate. In thosecircumstances, and in the absence of any evidence to show that Cementir hadinstructed Italcementi to represent it at one or other of the meetings described inrecital 25 of the contested decision, the Commission was not entitled to infer from Italcementi's presence at those meetings that Cementir was represented at themand that Cementir had thus subscribed to the agreement setting up the ETF. 2775. The Commission also relies upon the fact that Cementir was a direct member ofCembureau. 2776. However, even if the ETF were, as the Commission claims (contested decision,recital 24, paragraph 3), an emanation of Cembureau, that would not support theconclusion that Cementir had agreed to the setting-up of the ETF. As set out inparagraph 1553 above, membership of a professional association, in this caseCembureau, does not mean that the member concerned is automaticallyresponsible for the various unlawful acts committed within that association, doingaway with the need to show personal participation by the member in those unlawfulacts. 2777. The Commission then relies on the fact that the ETF was, in its opinion, anapplication of the Cembureau agreement, to which Cementir had subscribed. 2778. However, even if that assessment were correct, the Commission would not therebybe relieved of the need to adduce evidence of Cementir's individual participationin the infringement found to exist in Article 4(1) of the contested decision. Tofollow the Commission's argument would be to take the view that all theundertakings and associations of undertakings which had actually subscribed to theCembureau agreement should have been held responsible for the infringementconcerning the agreement setting up the ETF, without any need for furtherinquiries as to whether they had really participated individually in that infringement. 2779. Finally, the Commission alleges that Cementir took part in the meeting of HeadDelegates held at the same time as the Cembureau general assembly inLuxembourg on 25 to 28 May 1987, at which the destiny and future role of theETF were discussed (contested decision, recital 25, paragraph 48). 2780. It must, however, be found that, while it is clear from a telex sent by the Italianundertaking Calcestruzzi on 28 May 1987 to the Greek producer Titan (contesteddecision, recital 27, paragraph 10; document 33.126/19201) that Cementir, as itacknowledges, met Titan in Luxembourg on 27 May 1987, together with the twoItalian producers, Italcementi and Unicem, the contested decision contains noevidence to support the conclusion that Cementir took part in the meeting referredto in the previous paragraph. 2781. It follows therefore (see paragraphs 2767 to 2780) that the Commission has notproved that Cementir took part in the agreement setting up the ETF. 2782. It follows that Article 4(1) of the contested decision must be annulled in so far asit finds that Cementir took part in the agreement concerning the setting-up of theETF. D  Duration of the infringement found in Article 4(1) of the contested decision 2783. In Article 4(1) of the contested decision, the Commission finds that as from 28 May1986 there was an infringement relating to the agreement setting up the ETF, butdoes not indicate the date on which the infringement ended. 2784. It has already been found that, by taking 28 May 1986 as the starting date of thatinfringement for CBR, Aalborg, BDZ, Unicem, Uniland, Oficemen, Irish Cement,Aker and EUROC, the Commission incorrectly assessed the starting date of theirparticipation in that infringement. That date must thus be set at 9 June 1986 forCBR (see paragraph 2604 above), for BDZ (see paragraph 2673 above), forOficemen (see paragraph 2720 above), for Aker and EUROC (see paragraph 2764above), and at 9 September 1986 for Aalborg (see paragraph 2657 above), forUnicem (see paragraph 2683 above), for Uniland (see paragraph 2699 above) andfor Irish Cement (see paragraph 2737 above). 2785. The Court must now examine the arguments put forward by some of the applicantsreferred to in Article 4(1) of the contested decision in order to challenge theCommission's finding that the infringement lasted for an indefinite period. 2786. First, Aalborg alleges that, contrary to Article 190 of the Treaty, the Commissionfailed to explain why it had found Aalborg to be involved in the ETF after 9September 1986, the date of the meeting of Head Delegates and representativesof the ETF in Baden-Baden, at which Aalborg could have heard references to theETF for the last time. Italcementi claims that the failure to provide reasons affectsthe date held by the Commission to be the end of the infringement, namely 26March 1993. 2787. In that regard, it must be pointed out, in connection with Italcementi's assertion,that the Commission does not fix any date for the end of the infringement foundin Article 4(1) of the contested decision (see paragraph 2783 above). The date of26 March 1993 is in fact the date considered to be the end of the infringementfound in Article 4(2) of the contested decision, the agreement setting upInterciment. 2788. With regard to a statement of reasons, it should be observed that in recital 53,paragraph 14, of the contested decision, the Commission explains: 'The infringement committed is all the more serious as it lasted a long time, andthe Commission is entitled to presume that it is still continuing. Despite Holderbank's statement that the Task Force was dissolved at the end of May 1987,the Lafarge memorandum of 1 June 1987 states that the mission of the teamformed just a year ago will in future be strictly limited to exchanges of informationon very specific subjects. The British were in favour of winding it up, but the Swissfinally convinced their colleagues that this would be a mistake: as the tool had beenforged it might as well be kept ready for use. It appears therefore that the toolwas kept ready for use after May 1987. This is all the more probable as themeasures designed to absorb the destabilising cement were implemented up to1991 (see recital 28) and as the Joint Trading Company was dissolved only on 26March 1993 (see paragraph 16 of recital 26). 2789. Subject always to consideration of the arguments disputing the merits of thatassessment by the Commission (see paragraphs 2791 to 2815 below), thosestatements constitute sufficient reasons for the Commission's decision in Article4(1) of the contested decision to find that the infringement arising from theagreement on the setting-up of the ETF, in particular with respect to Aalborg andItalcementi, lasted for an indefinite period. 2790. The arguments of Aalborg and Italcementi alleging failure to provide reasons forthe measure in question must therefore be dismissed. 2791. Second, CBR, Lafarge, Unicem, Uniland, Oficemen, Italcementi and Holderbankmaintain that the ETF was wound up at a meeting held at the end of May 1987 atthe same time as the Cembureau general assembly, as stated by Holderbank in1990 in reply to a request by the Commission for information (contested decision,recital 25, paragraph 48; document 33.126/18760). CBR and Holderbank state thatthat winding up was justified because the ETF's lobbying activities had led to theanticipated results. Holderbank also points out that, since the ETF was aninformal group, the Commission could not draw any inference from the fact thatthere was no evidence of a formal winding up decision. Blue Circle claims that theETF never managed to produce any useful ideas, so it disappeared from the scenein March or April 1987. 2792. Oficemen and Holderbank add that the information supplied by Holderbank to theCommission (see the previous paragraph) is not contradicted by the note writtenby Mr Marichal of Lafarge on 1 June 1987, concerning the meeting of May 1987in question (contested decision, recital 25, paragraph 48; documents 33.126/4487to 4490). It is apparent from that note that, since the ETF had attained its initialobjective, the participants wound it up and confined themselves to a mere exchangeof information. Italcementi claims that Lafarge's statement in that note that 'asthe tool had been forged it might as well be kept ready for use, should be readin context: at the end of May 1987 it was decided to dissolve the ETF, whichexplains why Mr Marichal had not yet been informed of that decision at the timehe wrote his note on 1 June 1987. 2793. Lafarge, Unicem, Uniland and Italcementi also allege that the Commissionassumed that the infringement continued after May 1987, without putting forwardany actual evidence in support of that assessment. Those applicants, followed onthis point by Oficemen and Holderbank, dispute that the Commission had the rightto rely on the alleged continuation until 1993 of the supposed measures for theapplication of the ETF so as to extend indefinitely the duration of the infringementfound in Article 4(1) of the contested decision. 2794. The Court points out in that regard that, according to the documents put forwardby the Commission in recital 25 of the contested decision, the ETF met untilFebruary 1987 in order to examine, inter alia, the dissuasive and persuasivemeasures contemplated in order to eliminate imports of cement from Greece intoWestern Europe (contested decision, recital 25, paragraphs 45 and 46; documents33.126/18937 to 18944 and 4911 to 4913). The subgroup on 'stick actions held ameeting on 17 March 1987 at which the participants took stock of the threatenedinvasion of cement, particularly from Greece, onto their respective markets, settingout where appropriate the measures adopted or contemplated to counter suchthreats (contested decision, recital 25, paragraph 47; documents 33.126/4858 to4861). 2795. It is clear from the information supplied by Holderbank in response to a requestfor information from the Commission (reply 7b of 7 May 1990; contested decision,recital 25, paragraph 48; document no 33.126/18760), and from an internal note ofLafarge of 1 June 1987 (same paragraph; documents 33.126/4487 to 4490), that thefate of the ETF was discussed at a meeting held in Luxembourg at the end of May1987. 2796. Those various facts demonstrate that, until the end of May 1987, the concurrenceof wills which led to the setting-up of the ETF continued to exist. On the otherhand, it cannot be considered that such a concurrence of wills continued beyondthat date. 2797. Admittedly, the internal note of Lafarge on 1 June 1987 states, as quoted by theCommission in recital 53, paragraph 14, of the contested decision; 'European Task Force (ETF)  The mission of the team formed just a year agowill in future be strictly limited to exchanges of information on very specificsubjects. The British were in favour of winding it up, but the Swiss finallyconvinced their colleagues that this would be a mistake: as the tool had beenforged, it might as well be kept ready for use. 2798. In any event, the Commission has not adduced any evidence to show that, after themeeting in Luxembourg at the end of May 1987, the ETF met again with a viewto examining the dissuasive and persuasive measures adopted or contemplated. 2799. The duration of the various measures referred to in Article 4(2) to (4) of thecontested decision cannot in any event be used to assess the duration of theinfringement found in Article 4(1). That infringement, as stated in paragraphs 2507to 2511, concerns the agreement relating to the setting-up of the ETF, not thesingle and continuous agreement relating to the setting-up of the ETF and thevarious measures adopted as a result of the 'Greek problem. 2800. During the written procedure, the Commission referred to the Opinion of AdvocateGeneral Sir Gordon Slynn in Case 100/80 Musique Diffusion Française and Othersv Commission (cited in paragraph 439, p. 1941), according to which 'a conspiracy,once established, is presumed to continue until the contrary is shown. Accordingto the Commission, it was for the parties to prove that they had formally wound upthe ETF. 2801. The Court points out that the case which gave rise to the abovementioned opinionconcerned a concerted practice between distributors, whereby imports into Franceof products from Germany and the United Kingdom were prevented with a viewto maintaining a higher price level in the Member State in question. In his Opinion(p. 1941), Sir Gordon Slynn states: '... A concerted practice is capable of continuingin existence, even in the absence of active steps to implement it. Indeed, if thepractice is sufficiently effective and widely known, it may require no action tosecure its implementation. Cases may arise in which the absence of any evidenceof measures taken to implement a concerted practice may suggest that the practicehas come to an end. That, however, is a matter of evidence, which must dependupon the circumstances of the case ... It is perhaps of interest to observe thedecision of the United States Court of Appeals in US v Stromberg and Others, 268F 2d.256, in which it held that a conspiracy, once established, is presumed tocontinue until the contrary is shown. 2802. Sir Gordon Slynn's approach does not therefore amount to an assertion that, oncethe Commission has proved the existence of an agreement, decision, or concertedpractice contrary to Article 85(1) of the Treaty, it is automatically for the partiesinvolved in that agreement, decision or concerted practice to prove that it has cometo an end. Such a reversal of the burden of proof is possible only where the casein question possesses particular features. In any event, it is clear from the case-lawthat it is for the Commission to prove not only the existence of the agreement orconcerted practice but also its duration (Dunlop Slazenger v Commission, cited inparagraph 270, paragraph 79). 2803. In this case, the Commission was right to find that there was an agreement settingup the ETF. The nature of that agreement is fundamentally different from that ofthe concerted practice analysed by Sir Gordon Slynn in the abovementionedopinion. Whereas the pursuit of that concerted practice did not require any specialpositive measures, the agreement in question concerned the setting-up of a working group to examine dissuasive and persuasive measures capable of eliminatingimports into Western Europe. 2804. In such circumstances, the Commission cannot now assume that that agreement hadnot ended, when it has not been able to prove that after the end of May 1987 theETF met again to consider those dissuasive and persuasive measures. 2805. Since the ETF was an informal working group, without statutes or any act creatingit, the Commission may not simply use the fact that there is no evidence of itsformal dissolution in order to assert that the agreement leading to the setting-upof the ETF was not brought to an end. 2806. In conclusion, the Commission was not entitled to find that the infringementrelating to the agreement setting up the ETF continued beyond the end of May1987. It follows that Article 4(1) of the contested decision must be annulled in sofar as it finds that that infringement continued beyond 31 May 1987. Thatconclusion applies not only to the applicants identified in paragraphs 2791 to 2793above, but also the to other applicants mentioned in Article 4(1) of the contesteddecision (except Cementir (see paragraph 2782 above)), since they all in substancechallenge the legality of that provision. 2807. With regard to Uniland, Oficemen, Italcementi and Blue Circle, it must be statedthat the fact that document no 33.126/18950, cited by the Commission in thecontested decision, recital 25, paragraph 48, cannot be relied on against them (seeparagraph 376 above) in order to demonstrate that attempts were made to holdmeetings of the ETF between March and May 1987 cannot undermine the analysisin paragraphs 2794 to 2806 above concerning the duration of the infringementfound in Article 4(1) of the contested decision. As explained in paragraph 2795above, it is apparent from documents 33.126/18760 and 4487 to 4490 that the fateof the ETF was discussed at a meeting held in Luxembourg at the end of May1987, which proves that the concurrence of wills that emerged on the setting-up ofthe ETF had continued until that meeting. 2808. Nor, as regards Holderbank, can the fact that Lafarge's internal note of 1 June1987 (documents 33.126/4487 to 4490), cited in paragraph 2795 above, cannot berelied upon against it (see paragraph 377 above) undermine the analysis inparagraphs 2794 to 2806 above concerning the duration of the infringement foundin Article 4(1) of the contested decision. According to statements made byHolderbank itself to the Commission (contested decision, recital 25, paragraph 48;document no 33.126/18760) 'it was decided at an informal meeting taking place atthe same time as a Cembureau assembly in Luxembourg to wind up the ETF at theend of May 1987, which demonstrates that the concurrence of wills which had ledto the setting-up of the ETF had continued until that date. 2809. Third, Dyckerhoff (T-33/95), Ciments Français (T-39/95), Aalborg (T-44/95) andUniland (T-58/95) dispute the duration of their participation in the infringementfound in Article 4(1) of the contested decision, stating that after a particular datethey took no more part in the meetings of or concerning the ETF. 2810. Dyckerhoff claims that it took the view that there was no longer any advantage forit in remaining in contact with its competitors after the highest authorities of theCommission had been informed, on 6 November 1986, of the actions of the GreekGovernment. After that date, it took no part in any meeting or measure involvedin that case. Its participation in the ETF therefore lasted six months at the most,from 28 May to 6 November 1986. 2811. Ciments Français observes that the 'Head Delegates of the ETF did not meetagain to discuss the 'Greek problem after meeting Mr Sutherland, a member ofthe Commission, on 6 November 1986. 2812. Aalborg maintains that, after the meeting held on 5 November 1986 to prepare forthe next day's meeting with Mr Sutherland, it took no part in any meeting to dowith the ETF. Nor was it informed of the ETF's activities. The ETF never askedit to take a position on any matter whatsoever after the meeting in Baden-Badenon 9 September 1986. However the facts described in the contested decision,recital 25, are interpreted, it is therefore impossible for Aalborg to have infringedArticle 85(1) of the Treaty after 9 September or 5 November 1986. 2813. Last, Uniland states that there is no evidence to extend its participation in the ETFbeyond 6 November 1986, the date of the second and last meeting at which MrRumeu took part at that period. 2814. It must, however, be stated that the various applicants have put forward noevidence to show that, after subscribing to the agreement setting up the ETF, theyopenly made known to the other participants, for example at the last meeting inwhich they took part at that time, their disapproval of the ETF's continuedconsideration of dissuasive and persuasive measures intended to eliminate importsof cheap cement into Western Europe. 2815. The Court therefore finds that they supported that measure until its end, as hasbeen assessed in paragraphs 2794 to 2806 above, or at least gave the otherparticipants the impression that they did so (see, to that effect, the case-law citedin paragraph 1353 above). E  Access to the file 1. Preliminary observations 2816. Cembureau (T-26/95), Dyckerhoff (T-35/95), SFIC (T-36/95), Ciments Français(T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), BDZ(T-48/95), Unicem (T-50/95), Asland (T-55/95), Uniland (T-58/95), Oficemen(T-59/95), Irish Cement (T-60/95), Italcementi (T-65/95), Holderbank (T-68/95),Aker (T-70/95), EUROC (T-71/95) and Blue Circle (T-88/95) put forward a seriesof observations based on the documents which they were able to consult as a resultof the measures of 2 October 1996 and 18 and 19 June 1997 concerning access tothe file. They maintain that, by granting them only limited access to the SO and toits investigation file during the administrative procedure, the Commission deniedthem access to exculpatory documents and thus infringed their rights of defencewhen it found the infringement alleged against them in Article 4(1) of the contesteddecision. 2817. Cementir (T-87/95) puts forward, following the abovementioned measures, a seriesof documents which, it claims, would have been useful during the administrativeprocedure in order to defend itself against the allegation that it had participatedin the agreement setting up the ETF. There is, however, no need to assess whetherthose observations are well founded, since it has already been found that Article4(1) of the contested decision must be annulled in so far as it finds that Cementirtook part in that agreement (see paragraphs 2767 to 2782 above). 2. Case T-26/95 Cembureau v Commission 2818. In its submissions of 10 February and 28 November 1997, Cembureau claims thatin all the documents which it has been able to consult as a result of the measuresof organisation of procedure referred to in paragraph 2816 above there is noevidence to connect it to the ETF other than, first, the expression 'HeadDelegates used sporadically and imprecisely in certain documents and, second, thevery limited role played by two members of its staff in the first two meetingspreparatory to the ETF. On the contrary, the evidence contained in the filerelating to the United Kingdom support the conclusion that the 'Greek problemin no way involved Cembureau, since it was dealt with by the CMF and individualundertakings (documents 33.126/17160 to 17172, 17178 and 17179), throughcontacts at the highest political level with the United Kingdom Government, andthrough the intervention of the latter (33.126/17157 to 17165, 17180 to 17184, 17191to 17194, 17219 to 17225, 17624, 17625, 17631 to 17633, 17635 to 17638, 17641 to17654, 10827 and 10828). Those documents, and numerous others (33.126/11188,11189, 10842 to 10844, 11072, 10827, 10828, 11123 to 11127, 11130, 11131, 11165to 11169, 11171 to 11175, 11178, 11179, 11000, 11001, 11243, 11244, 7725 to 7740,15351 to 15353, 15363, 15355, 15388, 15364 to 15367, 16087, 16088, 16091 to 16110and 16122 to 16126) further illustrate importance of the awareness campaign andpressure brought to bear on the British authorities (government and parliament)and on members of the European Parliament, as well as contacts with theCommission, in response to the Greek problem. The file concerning the United Kingdom also shows that the Greek Government had recommended to its cementindustry that it should make contact with its British counterpart in order to resolvethe Greek problem (documents 33.126/17178 and 17179). The solution of thatproblem was not therefore the result of a measure implementing the Cembureauagreement. In Cembureau's view, it is also significant that France, when confrontedwith the problem raised by imports from Greece, made contact not withCembureau, but with the Government of the United Kingdom and the DTI (seeparagraph 416 above) (documents 33.126/17219 to 17225). Cembureau considersthat if all those documents had been made available to it during the administrativeprocedure it would have been able to point to the complete absence of any proofof its participation, through its staff, its managers, committees or representativebodies, in the above actions and political pressures and to disprove theCommission's allegations that Cembureau played a central role in the organisationand activities of the ETF. 2819. However, the Court points out that the Commission has never denied that theappearance of the problems caused by imports from Greece gave rise to a hugeawareness campaign and to pressure brought to bear on the national authorities (inparticular the British and Greek) and Community authorities (Commission,European Parliament) concerning the effect of cheap exports from Greece (SO,paragraphs 16; contested decision, recital 24, paragraph 2, and recital 25,paragraphs 12, 19, 36, 42, 43, 44, 45 and 47). Nevertheless, in the contesteddecision, the Commission was interested only in the measures which went beyondthose actions (contested decision, footnote 115). The observations whichCembureau might have made during the administrative procedure in order toemphasise the political steps to which the question of Greek exports gave rise couldtherefore only have illustrated one aspect of that file, which had been duly notedby the Commission. They would not, however, have prevailed over the bundle ofdocuments referred to in recital 25 of the contested decision on the basis of whichthe Commission rightly found, in recital 53, that the threatened imports intoWestern Europe of cement from Greece had given rise, concurrently with thepolitical actions, to the setting-up of the ETF for the purpose of consideringdissuasive and persuasive measures capable of eliminating imports of cheap cement(primarily those from Greece) onto European markets. 2820. Nor could those observations, even if they could have been presented during theadministrative procedure, have precluded the findings made by the Commission inthe contested decision, recital 24, paragraph 2, and recital 25, paragraphs 1 and 2,concerning the participation of Mr Dutron, director of Cembureau, in the meetingin Rome on 28 May 1986 and of Mr Collis, another Cembureau director, in partof the meeting in Zurich on 3 June 1986. They would not, therefore, have provideda basis for dismissing Cembureau's participation in the agreement setting up theETF. 2821. To conclude, they would not have had even a small chance of altering the outcomeof the administrative procedure. Cembureau has, therefore, not proved that therewas an infringement of its rights of defence in this regard during the administrativeprocedure. 3. Case T-35/95 Dyckerhoff v Commission 2822. Dyckerhoff claims that the documents that it was able to consult following themeasures of organisation of procedure referred to in paragraph 2816 above wouldhave supported its case, during the administrative procedure, as to the lawfulnessof the ETF's activities and the role which it played in them. 2823. It puts forward nine arguments in that regard. 2824. First, it states, in its observations of 7 February 1997, that there is no mention ofits name in the detailed report regarding the ETF in minutes drawn up by Heracles(documents 33.126/19875 to 19887), which goes to show that it was not involved inthe ETF. 2825. It must, however, be pointed out that the observations which Dyckerhoff mighthave presented during the administrative procedure on the basis of thosedocuments could not have precluded the findings made by the Commission inrecital 25 of the contested decision, paragraphs 1, 9, 23 and 39, concerning itsparticipation in the meeting in Rome on 28 May 1986, in the meeting in Stockholmon 9 June 1986, in the meeting of Head Delegates and representatives of the ETFin Baden-Baden on 9 September 1986, or in the meeting of representatives of theEuropean cement industry in Brussels on 6 November 1986. Accordingly, theywould not have given grounds for ruling out Dyckerhoff's participation in theagreement setting up the ETF. 2826. Second, Dyckerhoff claims, in its observations of 7 February 1997, that somedocuments in the Italian and Spanish files (documents 33.126/12060, 12061 and12063, and 33.332/1390 to 1394) show that, like Dyckerhoff, other cementproducers and national associations had regarded the discussions and measuresadopted in connection with the ETF as a lawful attempt to have anti-dumpingmeasures adopted against imports from Greece. 2827. However, it is apparent that the documents relied upon contain Unicem's answerto questions put by the Commission in the procedure which led to the adoption ofthe SO and the contested decision, and Oficemen's replies to questions put by theTribunal de Defensa de la Competencia. In those replies, Unicem and Oficemendeny that any actions were taken against Greek producers on the basis of the ETFmeetings. It is quite plain that such denials would not have been capable ofrefuting either the extracts from the documents referred to in recital 25 of the contested decision, paragraphs 15 and 24, and recital 53, paragraph 7, on which theCommission rightly relied in order to establish the anti-competitive purpose of theETF, or the findings referred to in paragraph 2825, which prompted theCommission to find that Dyckerhoff took part in the infringement concerning theagreement setting up the ETF. 2828. Third, Dyckerhoff, in its observations of 7 February 1997, puts forward the agendaof a meeting of the SFIC (document no 33.126/14828), which, it claims, shows that,at the time of the Greek export problem, there were individual and independentinitiatives by producers and national associations. Those facts therefore contradictthe existence at that time of any European collusion against imports from Greece. 2829. Dyckerhoff adds that such individual and independent initiatives were also aimedat imports from markets other than the Greek market, which shows that it was notnecessary to organise any concerted European action to counter imports fromGreece. First it quotes documents concerning the French market (documents33.126/5695 to 5698, 5637 to 5640, 5651 to 5656, 5657 to 5659, 5709 to 5713 and5714 to 5724). It questions why it should have been necessary to combat importsfrom Greece with the aid of the ETF's considerable resources, whereas similarimports from other markets were discussed only at national level. It then refers todocuments concerning the Spanish market, namely, minutes of Oficemen(documents 33.322/1311 to 1318) and minutes of Asland's board meeting(documents 33.322/1604, 1607 and 1608), in which only national measures tocounter imports were contemplated. 2830. It must however be pointed out that Dyckerhoff's observations, even if they couldhave been put forward during the administrative procedure, could not have refutedthe bundle of documents referred to in recital 25 of the contested decision on thebasis of which the Commission rightly found, in recital 53, that the appearance ofthe 'Greek problem had given rise, over and above the individual initiatives oncertain markets, to the birth of a multilateral agreement between variousundertakings, including Dyckerhoff, and of associations of European undertakingsconcerning the setting-up of the ETF for the purposes of considering dissuasive andpersuasive measures capable of eliminating imports of cheap cement into WesternEurope, primarily those from Greece. 2831. Fourth, in its observations of 7 February 1997 Dyckerhoff refers to extracts froman internal Italcementi note concerning imports from Greece (documents33.126/2950, 2951 and 2954), which contain no direct mention of the ETF or ofother undertakings or associations which are members of the ETF. In its view, itfollows from those extracts that, in Italy, the 'Greek problem was treated inconjunction with the problems raised by exports from Yugoslavia. Even thoughthose extracts contain a direct reference to the activities of the ETF with regard toan assault on the Greek market, they do not refer to any measure decided on orcoordinated by the ETF. 2832. However, it must be pointed out that Dyckerhoff puts forward two contradictoryinterpretations of the Italcementi note in question. First, it claims that the contentof that note does not display any direct relationship to the ETF and, secondly, thatit refers specifically to the ETF's activities. In fact, the author of that notededicates a special section to the ETF's activities (document no 33.126/2950), underparagraph '2. Task Force Activity. 2833. Moreover, Dyckerhoff does not explain how the observations that it might havebeen able to put forward during the administrative procedure to show that theGreek and Yugoslav 'problems were treated jointly in Italy could have beenrelevant to its defence against the objections relating to the ETF. 2834. In any event, the observations that it might have been able to put forward duringthe administrative procedure on the basis of that Italcementi note could not haverefuted the various findings referred to in paragraphs 2825 and 2830 on the basisof which the Commission rightly concluded that Dyckerhoff took part in theagreement setting up the ETF, which aimed to eliminate imports of cheap cementinto Western Europe. 2835. Fifth, in its observations of 7 February 1997, Dyckerhoff refers to a series ofdocuments (documents 33.126/14832, 17129, 17140, 17171, 17176, 17187, 17193,17196, 17071, 17158 and 19875 to 19887) to demonstrate that the nationalassociations, in particular the French and the British, had made representations totheir State authorities to make known their concern with regard to imports fromGreece. In that connection, it points out that it has always claimed (reply to theSO, p. 60, and application, p. 92) that the activities of the ETF in which itparticipated related exclusively to the lodging of an anti-dumping complaint withthe Commission. Moreover, it refers to, but does not append to its observations,Oficemen's minutes dealing with imports from Tunisia, giving an account of stepsto be taken with reference to national and Community public authorities. 2836. In its observations of 5 January 1998, Dyckerhoff claims that an internal note ofBlue Circle of 2 September 1986 demonstrates the intention of the Europeancement producers to ask the Commission to take measures against cement importsfrom Greece, which were judged to be incompatible with Community law(documents 33.126/11023 to 11025). It also cites two handwritten notes of BlueCircle concerning the preparation for the ETF meeting at the beginning ofSeptember 1986, which show that that preparation related only to the politicalmeasures in respect of the European Parliament and the Commission (documents33.126/11028 to 11034), and also a fax of 17 September 1986 from Sir John Milneof Blue Circle, which shows that exclusively political concerns were at the centreof the discussions at the meeting in Baden-Baden on 9 September 1986 (documentno 33.126/11079). Dyckerhoff also mentions several documents which, it claims,demonstrate the lawfulness of the ETF's activities, in that they give an account ofthe representations made by the cement producers and their national associations to national authorities (documents 33.126/16494, 16495, 16467, 16469 to 16471,16473 to 16487, 15364 to 15366, 11125, 11126 and 11127). Finally, it puts forwardthe content of a Blue Circle internal note of 5 September 1986, concerning themeeting in Strasbourg with members of the European Parliament on 9 and 10September 1986, to show that the initiative for those representations was not takenby the German producers (documents 33.126/11052 and 11053). 2837. However, it must be pointed out that, contrary to what Dyckerhoff contends,documents 33.126/11028 to 11034 do not shed a different light on the content ofthe two meetings in Baden-Baden on 9 September 1986, described in contesteddecision, recital 25, paragraphs 21 to 33. The handwritten notes contained in thosedocuments simply refer to the fact that a meeting was held in Baden-Baden on 9September 1986, without specifying the subject-matter, and that a meeting was heldin Strasbourg the next day with members of the European Parliament. Thatinformation does not therefore contradict the findings based on the documentsreferred to in recital 25 of the contested decision, paragraphs 21 to 33, namely, thatin Baden-Baden on 9 September 1986 there was first a meeting at midday of theETF devoted to the preparation of the meeting of Head Delegates and of therepresentatives of the ETF and then, at the end of the afternoon, the later meeting,during which the setting-up of the ETF, its anti-competitive object, its compositionand organisation of its work, and the various dissuasive and persuasive measuresentrusted to its consideration were in turn examined. 2838. The same assessment holds for the Blue Circle fax of 17 September 1986(document no 33.126/11079): the fact that that document refers only to politicalconsiderations following the meeting held in Baden-Baden the previous weekcannot refute the findings referred to in the previous paragraph. 2839. For the rest, it has already been pointed out (see paragraph 2819 above) that theCommission has never denied that the appearance of the Greek export problemgave rise to a huge awareness campaign and pressure on the national authorities.However, in the contested decision it was interested only in the measures whichwent beyond those actions (contested decision, p. 56, footnote 115). Theobservations which Dyckerhoff might have been able to put forward during theadministrative procedure in order to stress the political dimension of the Greek filecould therefore only have illustrated an aspect of that file duly noted by theCommission. On the other hand, they would not have been able to prevail overthe bundle of documents referred to in recital 25 of the contested decision on thebasis of which the Commission rightly found, in recital 53, that the threat of importsinto Western European of cement from Greece had given rise, alongside politicalactions, to the setting-up of the ETF for the purpose of examining dissuasive andpersuasive measures to eliminate cheap imports of cement (primarily those fromGreece) onto European markets. Nor could those observations have precluded thefindings referred to in paragraph 2825 above as to Dyckerhoff's participation in thevarious meetings devoted to the ETF and its unlawful activities. 2840. Sixth, in its observations of 7 February 1997 Dyckerhoff claims that the Commissiondid not mention, in the summary of facts which the SO devotes to the Greekmarket (chapter 7), the anti-dumping procedure contemplated by the Europeanproducers and the State measures in favour of Greek producers, whereas variousdocuments refer to the latter (documents 33.126/19882 and 19884). 2841. However, in the contested decision, the Commission states in footnote 113 that'[w]hen Greece joined the Community, its cement industry was receiving aconsiderable amount of State aid, before referring to a number of decisions whichit took in relation to that aid, during and after the period in which the ETF wasoperational. In the contested decision, recital 53, paragraph 8, it discusses in detailthe argument put forward by Lafarge at the hearing on 12 March 1993 that'Article 85(1) [of the Treaty] was not applicable to the members of the ETFbecause they were acting in legitimate self-defence against exports by the Greekproducers, who were receiving unlawful aid from the government of their country. The Commission had therefore correctly understood, during the administrativeprocedure, the economic background to the reactions of the European producersto imports from Greece. Accordingly, any observations that Dyckerhoff might havebeen able to formulate then on the basis of documents 33.126/19882 and 19884could only have repeated observations already duly taken into account in thecontested decision. 2842. Seventh, Dyckerhoff puts forward, in its observations of 5 January 1998, severalBlue Circle telexes concerning the planning of the ETF meeting of 10 September1986. Dyckerhoff is not mentioned in any of those telexes, which, in its view, showsthat it did not take part in the planning and preparation of the alleged activities ofthe ETF (documents 33.126/11010 to 11012). Dyckerhoff raises the same argumenton the basis of the telexes relating to the ETF meetings on 21 October 1986,January, March and May 1987 (documents 33.126/15343 to 15347, 18874 to 18894,18901 to 18918, 18950, 18951, 18953 to 18955 and 18956 to 18960). 2843. However, the Commission has never claimed that a meeting of the ETF took placeon 10 September 1986. In the contested decision, recital 25, paragraph 21, it pointsout that the ETF met in Baden-Baden at midday on 9 September 1986, but doesnot allege that Dyckerhoff was present at that meeting. Nor does it maintain in thecontested decision that Dyckerhoff participated in the ETF meetings of 21 October1986 and 9 January 1987, a meeting of its subgroup on 'Stick actions on 17 March1987 or the meeting at the end of May 1987 at which the fate of the ETF wasdiscussed. As pointed out in paragraph 2825 above, the Commission found thatDyckerhoff took part in the meeting in Rome on 28 May 1986, the meeting inStockholm on 9 June 1986, the meeting of Head Delegates' representatives of theETF in Baden-Baden on 9 September 1986 and the meeting of European cementindustry representatives in Brussels on 6 November 1986. Those findings of fact,which led the Commission to find that Dyckerhoff took part in the infringementrelating to the setting-up of the ETF, could not have been refuted by the observations that Dyckerhoff might have put forward in the course of theadministrative procedure on the basis of the documents referred to in the previousparagraph. 2844. It must be added that in the contested decision, recital 53, paragraph 4, theCommission adopts a position on 'the claim made by certain undertakings andassociations of undertakings that, not having participated in the Task Forcemeetings or subgroup meetings, but only in the meetings of the Head Delegates,they cannot be held responsible for the measures examined. Observations likethose now put forward by Dyckerhoff were therefore fully taken into considerationby the Commission in the contested decision. 2845. Eighth, in its observations of 5 January 1998 Dyckerhoff mentions an internal BlueCircle note of 28 August 1986 (document no 33.126/11013), which relates BlueCircle's unsuccessful efforts to meet imports from Greece on a European front. It claims that those statements show that, apart from its political initiatives,Dyckerhoff did not participate in the adoption of collective measures with otherEuropean producers. 2846. However, contrary to Dyckerhoff's submissions, the document in question does notrelate a failure by Blue Circle in its attempt to create a common European frontto counter imports from Greece. It merely refers to the great difficulties, on theone hand, of proving 'collusion between the Greek producers and, on the otherhand, reaching a collective agreement with the Greek industry. 2847. In any event, the observations that Dyckerhoff might have put forward during theadministrative procedure on the basis of that document could not have precludedthe findings, referred to in paragraphs 2825 and 2830 above, concerning the setting-up of the ETF in mid-1986 in order to respond with a common front to the importsthreatening the stability of the various Western European markets, andDyckerhoff's participation in that agreement. 2848. Ninth, in its observations of 5 January 1998 Dyckerhoff claims that, according toa Holderbank letter addressed to members of the ETF, it did not collaborate in thefollow-up and implementation measures of the Baden-Baden meeting, in which ithad taken part solely in order to prepare for the meeting with the members of theEuropean Parliament. Its name is not mentioned on the list of recipients of thatletter (documents 33.126/18870 to 18873). 2849. However, that fact, even if it could have been raised by Dyckerhoff during theadministrative procedure, could not have cast doubt on the contents of the minutesof the meeting of Head Delegates and representatives of the ETF in Baden-Badenon 9 September 1986, which mentions the presence of Mr Lose, from Dyckerhoff,at that meeting, during which the setting-up of the ETF, its anti-competitive object,its composition, its working methods and the various measures entrusted to it for consideration were examined in turn (contested decision, recital 25, paragraphs 22to 32; documents 33.126/18857 to 18862). Any observations which Dyckerhoffmight have made during the administrative procedure on the basis of theHolderbank letter mentioned in the previous paragraph to show that it had takenpart in that meeting solely for the purpose of the political actions contemplated inrelation to members of the European Parliament could not have offset thecomplete absence of any evidence to show that, at that meeting, Dyckerhoffexpressly told the other participants that it was attending it with different objectsin mind. 2850. In conclusion, there was not even a small chance that any of Dyckerhoff'sobservations could have altered the outcome of the administrative procedure.Dyckerhoff has not therefore established the existence of an infringement of itsrights of defence in that regard during the administrative procedure. 4. Case T-36/95 SFIC v Commission 2851. SFIC claims in its observations of 10 February 1997 that a number of documentsin the British file (documents 33.126/17157 to 17159, 17163, 17164, 17171, 17172,17182 and 17193) show that the CMF had undertaken numerous representationsto its national administration in order to bring about the adoption of measures todeal with imports from third countries into the Community or from Greece. TheCMF thus made contact with the Minister for Trade and the OFT (see paragraph1147 above) in order to consider governmental action and the support that it couldoffer for such action, by informing the DTI in particular (see paragraph 416 above)of the market situation with respect to imports from Eastern Europe (documents33.126/17220, 17623 to 17625, 17628 to 17630, 17635 to 17638 and 17641 to 17653). With regard to the question of imports from Greece, several documents in theUnited Kingdom file, in particular the minutes of the meeting of the CMF on 8October 1986 (documents 33.126/17168 and 17178), mention direct contactsbetween the United Kingdom Government and the Greek Government, which goesto support SFIC's argument that that question was likely to create a bilateral'lobbying response, rather than the implementation of agreements or concertedpractices. In addition, those documents tend to support the evidence of the sizeof the 'Greek problem at the economic level. Among the documents in theUnited Kingdom file, the SFIC refers to the minutes of the meeting of the CMFon 3 June 1987, which reports contacts entered into by the French administrationwith its British counterpart, when the threats arose of imports of Greek cementinto France through the port of Rouen. Finally, several documents in the filerelating to Spain (documents 33.322/1319 to 1323, 1604, 1607 and 1608) show thatthose steps were taken by Oficemen in relation to its government authorities inconnection with lobbying activity on various matters, for example the certificationof the quality of the cement. All those documents would have been particularlyuseful to the SFIC in order to support its argument concerning the lawfulness of the actions it took, individually or through Cembureau, during the period inquestion. The SFIC considers that, if the Cembureau agreement had existed, thesteps taken by the various national associations to counter imports (particularlythose from Greece) would have been fundamentally different. 2852. In its observations of 7 January 1998, the SFIC cites a series of documents(documents 33.126/2088 to 2096, 2122 to 2125, 7717 to 7722, 11003, 11004, 11021,11022, 11052, 11053, 11066 to 11068, 11077 to 11079, 11122 to 11124, 11130, 11131,11180, 11181, 15388, 16436, 16437, 16467, 16468, 16469, 16470, 16471, 16472 to16474, 16488, 16489, 16490, 16508 and 16509) to support its explanations suppliedduring the administrative procedure, that its actions and those of the otherEuropean associations and undertakings to deal at European level with theunlawful exports from Greece, had consisted in political initiatives made to thegovernment and Community authorities, with the particular support of membersof the European Parliament, initiatives which were moreover successful. The SFICthen refers again to the minutes of the CBR's management committee meeting of29 March 1988 (documents 33.126/7635 to 7637), which reflect the relativepassiveness of the Commission with regard to the question of the Greek cementindustry, in spite of the fact that some of that industry's practices were notcompatible with Community rules. That document would have helped the SFICto have a better understanding of the question of imports into Europe of cementfrom Greece and to justify the necessity of the lobbying activities subsequentlycarried out, both by trade associations and by various cement producers. Finally,the SFIC refers to the extract from a document sent by Blue Circle to theCommission on 8 December 1989 (documents 33.126/13633 to 13648), which showsthat the documents concerning imports from Greece, seized by the Commission'sagents at Blue Circle, 'entirely support Blue Circle's contention that although therewere discussions about a variety of possible solutions to the problem of the Greekpolicy of exporting heavily subsidised cement to the United Kingdom, no agreementor arrangement with other cement producers was ever concluded or implemented(document no 33.126/13643). According to the SFIC, the information in thatstatement ought, in order to observe its rights of defence, have been made availableto it during the administrative procedure as it constituted exculpatory evidence. 2853. It has, however, already been pointed out on various occasions (see, in particular,paragraph 2819 above) that the Commission has never denied that the problem ofimports into Western Europe, especially from Greece, had given rise to a campaignof awareness-raising and of pressure on the national and Community authoritiesconcerning the effects of those cheap imports. However, in the contested decisionit was interested only in the measures which went beyond those political initiatives(footnote 115). The observations which the SFIC might have put forward duringthe administrative procedure in order to emphasise the political initiatives to whichthe Greek problem gave rise could therefore only have illustrated one aspect ofthat file duly noted and not challenged by the Commission. They could not,however, have prevailed over the bundle of documents referred to in recital 25 of the contested decision on the basis of which the Commission rightly found, inrecital 53, that the threatened imports into Western Europe of cement from Greecehad prompted, in addition to political actions, the setting-up of the ETF for thepurpose of considering the dissuasive and persuasive measures intended toeliminate cheap imports of cement (principally those from Greece) onto Europeanmarkets. 2854. Furthermore, those observations could not have refuted the various findings madeby the Commission in the contested decision, recital 29, paragraph 4, on the basisof which it rightly found that the SFIC had taken part in the infringement relatingto the agreement setting up the ETF. 2855. Any observations that the SFIC might have made during the administrativeprocedure on the basis of the CBR document (documents 33.126/7635 to 7637)would, like the observations put forward by Lafarge at the hearing on 12 March1993, have attempted to justify, on the grounds of an alleged state of legitimateself-defence, the collective measures adopted by the European producers againstimports from Greece, observations on which the Commission expressed its view inthe contested decision, recital 53, paragraph 8. 2856. Finally, the observations which the SFIC might have put forward during theadministrative procedure on the basis of Blue Circle's denials (documents33.126/13633 to 13648), an undertaking directly involved in the ETF, could quiteplainly not have prevailed over the bundle of documents referred to in recital 25of the contested decision on the basis of which the Commission rightly concludedthat there was an 'ETF coalition and that the SFIC was involved in that anti-competitive agreement. 2857. In conclusion, there was not even a small chance that the SFIC's variousobservations could have altered the outcome of the administrative procedure. SFIChas not therefore established the existence of an infringement of its rights ofdefence in that regard during the administrative procedure. 5. Case T-35/95 Ciments Français v Commission 2858. In its observations of 10 February 1997, Ciments Français claims that certaindocuments relating to the chapters of the SO concerning Greece, the UnitedKingdom and Italy would have enabled it to establish that, contrary to the claimsof the Commission, the actions taken to counter imports from Greece had not beentaken by the ETF or by the Head Delegates or on the basis of an agreementbetween Cembureau and several European producers. 2859. It refers to various documents (Italcementi's internal notes of 15 and 26 October1987 (documents 33.126/2945 to 2951) and a record of the meeting of a working group in Rome on 12 January 1988 (documents 33.126/19871 to 19873)) referringto measures relating to imports into Italy of cement from Greece, which make noreference at all to any agreement whatsoever concluded between Italian and otherEuropean producers at Cembureau or ETF level. 2860. It claims further that the measures concerning imports into the United Kingdomof cement from Greece were not the work of the Head Delegates nor of the ETFand that they had no connection with Cembureau. It mentions a series ofdocuments, the dates of which coincide with those of the meetings of the ETF orof the Head Delegates referred to by the Commission, which in its view indicatesthat the British producers alone attempted, at national and Community level, tofind a legal and political solution to the problems raised by imports from Greece,without any reference ever being made to concerted actions with the ETF or theHead Delegates (documents 33.126/10827, 10828, 17157 to 17159, 17166 to 17170,17178, 17179 and 19881 to 19887). 2861. In its observations of 21 November 1997 Ciments Français mentions severaldocuments which show that the ETF and the meetings of the European cementindustry representatives had the sole purpose of organising lobbying activities atnational and Community level, at the prompting of the British producers, in orderthat the subsidies for exports from Greece to the rest of the Community might bebrought to an end (documents 33.126/18961, 16494, 16495, 16493, 16508, 16489,16490, 16469, 18962, 18963, 16463, 11021, 11022, 11052, 11053, 18972, 16443,11079, 16436, 16437, 11123 to 11126, 11165 to 11167, 11171 to 11175 and 19014 to19016). Furthermore, some of those documents confirm that the only role playedby Mr Laplace, the president of Ciments Français and, at the time, president of theSFIC, was to represent the French industry in those political initiatives (documents33.126/18962, 18963, 11021, 11022, 11052 and 11053). 2862. It must however be found that all those observations, even if they could have beenmade by Ciments Français during the administrative procedure, could not haveprevailed over the bundle of documents referred to in recital 25 of the contesteddecision on the basis of which the Commission rightly found in recital 53 that,beside the individual responses of the markets most directly threatened by importsfrom Greece (the United Kingdom and Italy, in particular) and the political actionsto raise the awareness of the national and Community authorities and to bringpressure to bear upon them, the 'Greek problem had given rise to the setting-upof the ETF on the initiative of a number of larger undertakings, including CimentsFrançais, for the purposes of considering, with a view to making recommendationsto the Head Delegates, dissuasive and persuasive measures intended to eliminatedestabilising imports (principally those from Greece) onto European markets. 2863. It must then be pointed out that, at the hearing on 12 March 1993, CimentsFrançais, after stating that its president, Mr Laplace, then also president of theETF, had been present at the meetings in Rome, Stockholm and Brussels, had claimed that Mr Laplace's presence 'at these meetings of the Head Delegatesrelated to his role in the Syndicat and on the Liaison Committee (contesteddecision, recital 25, paragraph 9). 2864. Notwithstanding those assertions, the Commission considered (contested decision,recital 53, paragraph 13): 'Even if Mr Laplace did, like other representatives, participate in his capacity asPresident of an Association or chairman of a committee, he could not, in attendingthe meetings, disregard the fact that he was the chairman of Ciments Français. Hispresence therefore ensured that SFIC and the Committee, together with thecompany of which he was chairman, had a role within the task force. 2865. The observations of Ciments Français set out in paragraph 2861, stressing that theonly role played by Mr Laplace was to represent the French industry in the politicalactions taken in connection with the Greek question, would not have addedanything new to the debate. They could not therefore have provided a basis forexcluding the responsibility of Ciments Français in the infringement found in Article4(1) of the contested decision. 2866. In conclusion, there was not even a small chance that Ciments Français'observations could have altered the outcome of the administrative procedure. Ciments Français has therefore not established an infringement of its rights ofdefence in that regard during the administrative procedure. 6. Case T-42/95 Heidelberger v Commission 2867. In its observations of 20 February 1998, Heidelberger claims that several documentsshow that it had no financial interest in taking part in dissuasive measures againstGreek producers, inasmuch as, for reasons of geography, southern Germany couldnot be affected by Greek deliveries. It refers first to documents 33.126/19902,19910, 19918 and 19935 as showing that Heracles had not made any cementdeliveries in Germany during 1985 and 1986, second, page 8 of the 32-pagedocument reproduced in loose-leaf binder L, pages which include documents33.126/19411 and 19418, the content of which demonstrates also that, from 1985 to1989, there were no deliveries in Germany of cement from Greece and, third,documents 33.126/19397 and 19401, the content of which shows that in 1990 alsothere were no such deliveries in Germany, at a time when, according to the findingsof the Commission (contested decision, recital 25, paragraph 48), the ETF nolonger existed. Heidelberger then points out that, with the exception of thedocuments referred to in the contested decision, its name is not mentioned in anyof the files relating to the ETF. By way of example it cites the numerousdocuments concerning the setting-up of Interciment, and mentions in particulardocuments 33.126/7639 to 7641, 7643, 7644, 7657 and 7658. 2868. The Court points out, however, that the observations which Heidelberger couldhave made during the administrative procedure on the basis of those variousdocuments in order to establish its alleged lack of interest in the measures tocounter imports from Greece could not have refuted the finding made by theCommission in the contested decision, recital 25, paragraph 1, concerning itsparticipation in the meeting in Rome on 28 May 1986, at which it was agreed torespond rapidly and collectively to the decision of the Greek cement industry toexport 2 million tonnes of cement to Western Europe, a decision felt to be a 'veryserious problem for 'all the markets (document 33.126/18771). Thoseobservations could not therefore have provided a basis for excluding theresponsibility of Heidelberger in the infringement found in Article 4(1) of thecontested decision. 2869. In conclusion, there was not even a small chance that any of Heidelberger'sobservations could have altered the outcome of the administrative procedure.Heidelberger has not therefore established an infringement of its rights of defencein that regard during the administrative procedure. 7. Case T-43/95 Lafarge v Commission 2870. Lafarge claims that access to the whole of the SO and to the Commission'sinvestigation file would have enabled it successfully to substantiate its case duringthe administrative procedure on four specific points concerning the head of claimrelating to the setting-up of the ETF: the fact that there was no European cartelto combat imports from Greece; the economic background and the politicaldimension to the 'Greek problem; the role played by the ETF in that matter; theCommission's information concerning the discussions within the ETF. 2871. First, in its observations of 10 February 1997 and 28 January 1998 Lafarge relieson the complete absence of any reference, in the documents made available to itas a result of the measures of organisation of procedure referred to in paragraph2816, to the existence of any European cartel with responsibility for combattingcement imports from Greece. 2872. The Court points out, however, that any observations that Lafarge might have beenable to put forward on the basis of that alleged circumstance would not have beencapable of overriding the bundle of documents referred to in recital 25 of thecontested decision, on the basis of which the Commission correctly found, in recital53, that there was a multilateral agreement between various undertakings including Lafarge  and associations of European undertakings concerning thesetting-up of the ETF for the purpose of considering dissuasive and persuasivemeasures to eliminate destabilising imports into Western Europe, principally thosefrom Greece. 2873. Second, in its observations of 10 February 1997 and 28 January 1998, Lafarge putsforward a large number of documents which in its view would have been useful toit during the administrative procedure in order to illustrate the economicbackground and the political dimension of the Greek problem. 2874. In its observations of 10 February 1997, it refers first to minutes of the CMFmeeting on 17 July 1986 (document 33.126/17158), illustrating the politicaldimension of the Greek problem; second, documents showing the actionsundertaken in vain by the British public authorities with regard to the Commissionin order to combat the Greek problem (documents 33.126/17163, 17171 and 19880);third, documents referring to the measures taken by the British public authoritieswith regard to the Greek Government in order to prevent imports of cement fromGreece, and which recall in particular the conclusion of an inter-governmentalquota agreement (documents 33.126/17168, 17178 and 19878); and, fourth,documents concerning the intervention of the British competition authority, whichreveal involvement of the British public administration in their cement industry'smanoeuverings in order to counter the threat of subsidised imports from Greece(documents 33.126/17133, 17171, 17169, 17168 and 17176). Lafarge then producestwo sets of minutes of CMF meetings (documents 33.126/17191 to 17196, inparticular 17193), to show that the ETF saw its efforts overtaken by political action,namely the conclusion in December 1986 of an agreement between the Greek andUnited Kingdom Governments to limit imports into the United Kingdom of Greekcement. 2875. In its observations of 28 January 1998, Lafarge refers first to documents which donot mention the existence of a European cartel and which therefore show theunilateral character of the actions undertaken by the British industry (documents33.126/10825, 10827 to 10829, 11007 to 11009, 10837, 11015 to 11020, 11074, 11075,11110, 11116 and 11000); secondly, to documents illustrating the political supportgiven to the British industry in that file (documents 33.126/16473 and 16474);thirdly, to documents demonstrating that the only actions undertaken to resolve the'Greek problem were those of the public authorities which intended to put an endto the unlawful aid granted to the Greek cement industry (documents 33.126/11119to 11131, 11165, 10840 to 10844, 11164 to 11169, 11171, 11172, 111777 and 11190to 11191); fourthly, to documents demonstrating that political actions were takenby the German, Belgian and Italian industries (documents 33.126/18961, 16494,16495, 16465 to 16468, 16472, 16508, 16436, 16442, 2088 to 2090, 2122 to 2125,16087, 16088, 16091 to 16104, 16016 to 16110 and 7725 to 7740); and, fifthly, todocuments establishing the existence of a Greek cartel with designs on the Britishmarket and supported by the Greek Government (documents 33.126/19369, 19370to 19392, 11004, 11108 and 11109). 2876. The Court has however already pointed out several times (see in particularparagraph 2819 above) that the political dimension of the Greek problem had notescaped the Commission, but that in the contested decision it concentrated solely on the measures which went beyond those political actions (see footnote 115). Moreover, in the contested decision, recital 28, paragraph 13, the Commissionrefers to the conclusion in December 1986 of an inter-governmental agreementbetween Greece and the United Kingdom to limit the imports into the UnitedKingdom of cement from Greece, emphasising that the record of the meeting ofthe ETF defensive measures subgroup on 17 March 1987 mentions that 'highpolicy agreement. 2877. The Commission had also correctly perceived the State aid elements whichprompted the response of the European producers to imports from Greece (seeparagraph 2841 above; contested decision, footnote 113). In the contested decision,recital 53, paragraph 8, it rejects the observations put forward specifically byLafarge at the hearing in March 1993 to justify those responses by alleging lawfulself-defence. For the reasons set out in the fifth and sixth paragraphs of recital 53,paragraph 8, namely, that according to various documents the ETF's purpose wasbroader than merely to counter imports from Greece, the same fate wouldnecessarily have met Lafarge's argument concerning the existence of a Greekexport cartel at the time of the ETF. 2878. The observations which Lafarge might have presented during the administrativeprocedure on the basis of the various documents referred to in paragraphs 2874and 2875 above could therefore only have repeated considerations duly taken intoaccount by the Commission in the contested decision. They could not have refutedthe objective findings referred to in paragraph 2872 above concerning the setting-up of the ETF by a series of producers and associations of European producers including Lafarge  for the purposes of considering dissuasive and persuasivemeasures intended to eliminate cheap imports of cement (primarily from Greece)into western Europe. 2879. Third, in its observations of 10 February 1997 and 28 January 1998, Lafarge refersto a series of documents to demonstrate that the ETF's true role in the Greekaffair consisted of lobbying and deliberation. 2880. In its observations of 10 February 1997, Lafarge cites in this connection documents33.126/17168, 17176, 17163, 17646, 17648, 17178 and 19878 to 19888. 2881. In its observations of 28 January 1998, it claims that documents show that theBritish cement industry at the material time exhorted the European industry as awhole to join in its campaign to raise public awareness of the Greek problem(documents 33.126/18961, 18962, 18972 and 19011). It then puts forwarddocuments relating to the ETF meeting in Baden-Baden on 9 September 1986which show that the object of that meeting was to enable the British producers toinform the other European industry representatives of the content of thepresentation of the 'Greek problem which it had planned for the following dayto members of the European Parliament (documents 33.126/11021, 11022, 11033 to 11039, 11052, 11066 to 11068, 11072 and 11077). Lastly, it refers to documentsrelating to the meeting of the ETF in Brussels on 6 November 1986, which showthat the object of that meeting was to prepare for the interview to be held thesame day with Mr Sutherland, a member of the Commission, on the subject of theGreek problem (documents 33.126/11077, 11078, 18991, 18992 and 19003). 2882. As regards, first, documents 33.126/11021, 11022, 11033 to 11039, 11052, 11066 to11068, 11072 and 11077, which Lafarge tries to link to the content of the ETFmeeting in Baden-Baden on 9 September 1986 referred to in the contesteddecision, recital 25, paragraph 21, those documents show at most that severalmeetings took place in Baden-Baden on 9 September 1986 and in Strasbourg on10 September 1986. According to document 33.126/11038, on 9 September 1986there took place at midday a meeting of the 'working group, the purpose of whichwas not specified, and then at 19.00 hours, a meeting of the 'trading group andalso 'strategy discussion for meetings on 10 September, and finally at 21.00 hours,'dinner for all industry participants. On 10 September 1986 there took placebetween 10.30 and 15.00 hours a 'briefing meeting with UK MEPs, then 'lunchwith 12 to 15 members of the Economic Monetary Affairs and Industry PolicyCommittee of the European Parliament. Neither document 33.126/11038 nor theother documents referred to above contradict the content of the documentsreferred to by the Commission in the contested decision, recital 25, paragraphs 21to 33, which show, first, that the meeting in Baden-Baden at midday on 9September 1986 was an ETF meeting which 'was essentially aimed at preparing abriefing for each subject for the Head Delegate the same day after 18.00(contested decision, recital 25, paragraph 21; document 33.126/18848) and, second,that in the late afternoon of the same day, again in Baden-Baden, there was ameeting of the 'Head Delegates and representatives of the ETF, at which thesetting-up of the ETF, its anti-competitive purpose, its composition, organisationof its tasks and the various dissuasive and persuasive measures which it had beengiven to it to consider were referred to in turn (contested decision, recital 25,paragraphs 22 to 32; documents 33.126/18849 to 18862). 2883. With regard to the meeting in Brussels on 6 November 1986, described in thecontested decision, recital 25, paragraphs 39 to 43, the Commission has neverdenied that its purpose was, inter alia, to prepare for the interview arranged withMr Sutherland (see contested decision, recital 25, paragraph 43). Any observationswhich Lafarge might have presented during the administrative procedure on thebasis of documents 33.126/11077, 11078, 18991, 18992 and 19003 could thereforeonly have corroborated the findings duly made by the Commission. They could not,on the other hand, have altered the fact that, as is clear from the notes concerningthat meeting, referred to in the contested decision, recital 25, paragraphs 39 to 43(documents 33.126/19007 and 19008), it was also agreed then that the ETF shouldcontinue to meet in order to follow up developments in the threat of imports ofcement from Greece into Western European markets. 2884. As to the remainder, the various observations which Lafarge might have putforward during the administrative procedure to emphasise the ETF's politicalactivities could not have prevailed over the documents referred to in recital 25 ofthe contested decision on the basis of which the Commission rightly found in recital53 that the ETF had pursued another, unlawful objective, namely the considerationof dissuasive and persuasive measures to eliminate destabilising imports (primarilythose from Greece) into Western European markets. 2885. Fourth, in its observations of 28 January 1998, Lafarge refers to documents33.126/11086, 11130 and 11131, in order to show that the Commission had beeninformed of the discussions of the Greek problem at ETF level. Those documentsshow that the discussions between the British and Greek industries were linked withthe more general discussions of the way in which to resolve the 'Greek problemand that they had been openly entered into in connection with actions taken tolobby the Commission. 2886. However, the documents in question at most show that the Commission wasinformed at the time of bilateral discussions between British and Greek cementproducers in connection with the Greek problem. None of them shows that theCommission had been informed of the setting-up of the ETF with a view toexamining the dissuasive and persuasive measures capable of eliminating imports(particularly those from Greece) into Western Europe. Therefore, the observationswhich Lafarge could have presented during the administrative procedure on thebasis of those documents could not have refuted the Commission's finding in recital25, paragraph 7, of the contested decision that 'none of the firms indicatedwhether and which Commission officials were informed of the collective actionsproposed [at ETF level]. 2887. In conclusion, there was not even a small chance that any of Lafarge's observationscould have altered the outcome of the administrative procedure. Lafarge has nottherefore established an infringement of its rights of defence in that regard duringthe administrative procedure. 8. Case T-44/95 Aalborg v Commission 2888. First, in its observations of 10 February 1997 Aalborg refers to a series ofdocuments in the file concerning the United Kingdom (documents 33.126/17627,17629, 17630 and 17641 to 17653, in particular 17641 and 17646) concerning theexamination by the Commission of an anti-dumping complaint lodged by theEuropean cement producers, and of action by the trade objecting to the aidgranted by Greece to its own industry and not, as the Commission would have itin paragraph 15 of the SO, action to sanction some infringement or other of theCembureau agreement by the Greek producers. In its view, those documentswould have enabled Aalborg to disprove the Commission's argument that the ETF was set up in 1986 in order to ensure that the Cembureau agreement, adopted in1983, was applied. Several extracts from minutes of CMF meetings held betweenJuly and September 1986 (documents 33.126/17158, 17163, 17164, 17168) would intheir turn have enabled it to show that the presence of its manager, Mr Larsen, ata preparatory meeting in Baden-Baden on 9 September 1986 was explained not byits involvement in any Cembureau task force, but by its participation in Strasbourgon 10 September 1986 in action to raise the awareness of members of theEuropean Parliament of the problem of unlawful subsidies granted by the HellenicRepublic to its cement industry. Those minutes of meetings, which also showdevelopments in the anti-dumping file, would also have been useful to Aalborg inorder to support its argument concerning the lawfulness of the cement industry'sactions. Finally, Aalborg refers to an internal note concerning the meeting of theBlue Circle 'Management Group on 19 June 1986 (documents 33.126/10822 and10823), which reports the threat posed by the imports, in connection with an anti-dumping proceeding, of cement from Greece, and also the proposed lobbying ofthe British authorities with a view to trying to confine that threat. That note, whichrelates to the period immediately preceding Blue Circle's invitation to Aalborg tomake contact with its national authorities and with the Danish members of theEuropean Parliament in order to obtain action on the unlawful Greek aid, wouldhave been particularly useful to it in showing the legitimate reasons which led it toparticipate in the preparatory meeting in Baden-Baden on 9 September 1986. 2889. In its observations of 12 January 1998, Aalborg refers to a series of documents(documents 33.126/16469, 11000, 11001, 11007 to 11009, 11074, 11075, 18961,18962, 18963, 11004, 11021, 11022, 11062 to 11064, 11054 to 11060, 16183, 11028to 11031, 11033 to 11038, 7723, 11072, 17173, 17174, 11126, 11130, 11131, 11138to 11141, 11116, 11117, 18892 to 18997 and 15388, and 33.322/1319 to 1323). Itclaims that those documents demonstrate that although from 1986 onwards theEuropean cement industry showed that it was worried by intra-Community trade,their concerns related only to imports from Greece, subsidised by the nationalauthority. They also show that these concerns gave rise, on the one hand, to thesetting-up of the ETF consisting solely of several large European cement producers(the 'Group of Eight), excluding Aalborg and, on the other hand, to measures,quite lawful and in essence instigated by Blue Circle, to make the national andCommunity authorities aware of the matter. Those measures, which were partlysuccessful, were the only action in which Aalborg took part. They explain itsparticipation on 9 September 1986 in Baden-Baden in a meeting preparatory to thenext day's interview in Strasbourg with members of the European Parliament, ameeting from which the Commission drew the erroneous conclusion that Aalborgwas involved in the unlawful ETF agreement. 2890. The Court has, however, already pointed out several times (see in particularparagraphs 2819 and 2841 above) that the Commission had correctly perceived thepolitical dimension and the economic background of the problem connected withimports from Greece (see footnotes 113 and 115 of the contested decision). Any observations that Aalborg might have made on those various aspects of the Greekfile could therefore only have reiterated considerations duly taken into account bythe Commission in the contested decision. They could not have prevailed over thedocuments referred to in recital 25 of the contested decision on the basis of whichthe Commission rightly found, in recital 53, that, alongside action to make thenational and Community public authorities aware of the matter and to bringpressure to bear upon them, the appearance of the Greek export issue had givenrise to the setting-up of the ETF for the purposes of considering dissuasive andpersuasive measures capable of eliminating cheap imports of cement (principallythose from Greece) into Western Europe. 2891. Nor could those observations have precluded the finding made by the Commissionin the contested decision, recital 25, paragraph 23, with regard to the participationof Aalborg's Mr Larsen in the meeting of Head Delegates and representatives ofthe ETF in Baden-Baden on 9 September 1986, at which the setting-up of the ETF,its anti-competitive purpose, its composition, the organisation of its tasks and thevarious measures which it was given to consider, were in turn discussed (contesteddecision, recital 25, paragraphs 22 to 32; documents 33.126/18849 to 18862). Theobservations that Aalborg might have formulated during the administrativeprocedure on the basis of the documents referred to in paragraphs 2888 and 2889above in order to show that it had taken part in that meeting solely for the purposeof the political action envisaged vis-à-vis members of the European Parliamentcould not have disguised the total lack of evidence to show that at that meetingAalborg expressly informed the other participants that it was attending it with quitedifferent objects in mind. 2892. As to the particular stress that Aalborg might have put during the administrativeprocedure on the fact that it had not been a member of the 'Group of Eightconstituting the ETF, it must be pointed out, first, that the Commission has nevermaintained that the applicant was part of that group (see its findings in thecontested decision, recital 25, paragraph 24, concerning the composition of theETF) and, second, that in the contested decision, recital 53, paragraph 4, it sets outthe grounds which led it to the conclusion that 'the claim made by certainundertakings and associations of undertakings that, not having participated in thetask force meetings or subgroup meetings, but only in the meetings of HeadDelegates they cannot be held responsible for the measures examined, is withoutany foundation. 2893. In short, Aalborg's observations could not have provided a basis for excluding itsresponsibility in the infringement found in Article 4(1) of the contested decision. 2894. Second, Aalborg points out in its observations of 10 February 1997, that theinternal Blue Circle note mentioned in paragraph 2888 above (documents33.126/10822 and 10823) emphasised the need to consult a lawyer in connectionwith the measures to be taken concerning the unlawful imports from Greece. 2895. The Court points out in that regard that in the contested decision, recital 25,paragraphs 1 and 7, the Commission notes that the members of the ETF hadcontemplated seeking the advice of an expert in Community law on the legality ofthe actions they had in mind. Any observations that Aalborg might have made onthis point during the administrative procedure could therefore only havecorroborated the evidence already duly taken into account by the Commission inthe contested decision. On the other hand, they could not have refuted the findingthat follows from the documents referred to in recital 25 of the contested decisionnamely, that notwithstanding its declared intention, the ETF was set up andcharged with considering the dissuasive and persuasive measures intended toeliminate cheap imports of cement into Western Europe, an objective manifestlycontrary to Article 85(1) of the Treaty. 2896. Third, in its observations of 12 January 1998, Aalborg refers to an internalItalcementi note of 15 October 1987 (documents 33.126/2945 to 2948), which statesthat the name 'ETF was also used in Italy to designate a form of ad hoc regionalcooperation, intended to counter dumped imports of cement from Greece onto theItalian market. This document therefore shows that the ETF did not have theinstitutionalised character attributed to it by the Commission in the contesteddecision, and was not the embodiment of the Cembureau agreement. 2897. However, even if that evidence could have been put forward by Aalborg during theadministrative procedure, it could not have prevailed over the voluminous bundleof documents referred to by the Commission in the contested decision, recital 25,paragraphs 10 to 48, from which it is clear that the name 'ETF was also given tothe working group set up in the middle of 1986 at European level in order toconsider, with a view to making recommendations to the Head Delegates, thedissuasive and persuasive measures intended to eliminate cheap imports of cementinto Western Europe. 2898. In conclusion, none of Lafarge's observations had even a small chance of alteringthe outcome of the administrative procedure. Lafarge has not therefore establishedan infringement of its rights of defence in that regard during the administrativeprocedure. 9. Case T-48/95 BDZ v Commission 2899. The BDZ claims, in its observations of 10 February 1997, that several documentsin the files concerning France, the United Kingdom and Greece (documents33.126/14832, 17129, 17141, 17171, 17176, 17187, 17193, 17196, 17071, 17158, 19882and 19884) show that the activities undertaken by the European producers tocounter imports of cement from Greece, actions in which it admits having takenpart in order to represent the interests of the German cement industry, wereconfined to lawful initiatives vis-à-vis the national and Community authorities. 2900. Nevertheless, even if BDZ could have made those observations during theadministrative procedure, they could have done no more than confirm the realityof the political initiatives to which the Greek export problem gave rise, initiativeswhich are not disputed by the Commission. On the other hand, they could nothave prevailed over the bundle of documents referred to in recital 25 of thecontested decision on the basis of which the Commission has rightly found in recital53 that the threat of imports into Western Europe of cement from Greece hadgiven rise to the setting-up of the ETF for the purpose of examining dissuasive andpersuasive measures to eliminate cheap imports of cement (primarily those fromGreece) into Western Europe. 2901. There was thus not even a small chance that any of BDZ's observations could havealtered the outcome of the administrative procedure. BDZ has not thereforeestablished an infringement of its rights of defence in that regard during theadministrative procedure. 10. Case T-50/95 Unicem v Commission 2902. In its observations of 7 February 1997, Unicem claimed, inter alia, that consultationof the file as a result of the measures of 2 October 1996 revealed that thedocuments examined did not contain the slightest evidence of general collusion atEuropean level when the problem of imports from Greece arose. 2903. In support of that line of argument, Unicem put forward a series of documentsfrom national files, which it identified by reference, where appropriate, to thepagination used by the Commission in drawing up the measure of 2 October 1996or to the pagination/numbering of the SO. None of these documents, however, wasenclosed with its observations. 2904. In its memorandum lodged at the Registry of the Court on 28 November 1997following its inspection of the rest of the Commission's file in connection with themeasure of 18 and 19 June 1997, Unicem made good that omission by including allthe comments it had made in its observations of 7 February 1997 and enclosing asannexes the various documents on which it had relied in those observations. 2905. In its observations of 28 November 1997, Unicem maintains that the nationaldocuments setting out the concerns caused by imports of cement from Greece ontoEuropean markets and the reactions thereto (documents 33.126/7720, 7725, 7740,7635 to 7638  in particular 7637 , 17163, 17157 to 17160, 17172, 17193, 17219 to17225, 17624, 17625, 17631 to 17633, 17635 to 17638, 17641 to 17653, 10827, 10828,17178, 17179, 10842, 10843, 15354, 15363, 11077, 11086, 15364 to 15367, 15368,11087, 11166, 11188, 11189, 15386, 15387, 6881, 6882, 15351 to 15353, 15355, 15363to 15367, 15388 and 2088 to 2097  in particular 2094) show that the 'Greekproblem was treated quite independently on each market by measures adapted to the type of attack on each market, without the slightest collusion at European level. In its view, all those documents contradict the Commission's argument, based onan alleged single design drawn up in advance by Cembureau intended to punish theGreek producers for their infringement of the rule that there should be notranshipment to home markets. Those documents should therefore have led theCommission to assess the responsibility of each national industry, rather thanholding the entire European industry liable for isolated action taken to counterimports from Greece. Unicem also states that the British documents do notcontain any reference to the involvement of Cembureau, the ETF or the ECEC inthat matter, or any mention of the support which the Commission alleges that theItalian producers gave to the British producers in their campaign against importsfrom Greece, or any reference to Unicem. The French documents (in particulardocuments 33.126/17219 to 17225) show that, when France was threatened withimports from Greece, the French Government turned directly to its UnitedKingdom counterpart. It claims that those facts prove the utterly marginal roleplayed by Cembureau in the resolution of those problems. A good number ofdocuments dealing with imports from Greece, in particular the British documents,show that the lobbying activities undertaken on the initiative of the Britishproducers (in particular Blue Circle) vis-à-vis the political and institutionalauthorities, and the individual negotiations between certain European producersand the Greek producers, were far and away the most important in resolving the'Greek problem, which confirms the purely marginal role of the ETF, a bodywhich acted purely as a 'sounding box for the unilateral initiatives of the Britishproducers. Finally, in the files concerning Spain, Portugal and Germany, Unicemfound no document indicating that the imports from Greece had received concertedattention and reaction at European level. 2906. Unicem further claims that the national files confirm that the discussions onchanges in imports and actions to deal with them were held in isolation on eachmarket, without any involvement of the members of Cembureau, the ETF or theECEC. In its view, those files also show that Unicem was not a party to attemptsto 'lock up the markets, which were of absolutely no interest to it since it did notexport. In the file relating to France, Unicem refers in particular to documents33.126/14806, 14807, 14938, 15025, 15026, 15040, 14809 to 14826, 14938 to 14976,5688, 1394, 1395, 5648, 5747, 5748, 5695, 5696, 5751 and 5674, and also toparagraphs 78 and 81 of the SO. In the file concerning the United Kingdom, itrefers to paragraph 74 (p. 199) and 77 (p. 202) of the SO, and to documents33.126/17641 to 17654; it submits that the latter documents also contradict theconclusions drawn by the Commission in paragraph 16 of the SO that British priceswere the highest in Europe. From the files relating to Spain and Portugal, Unicemextracts chapters 18 and 19  in particular paragraph 89  of the SO. Amongst thedocuments in the file relating to Germany, it refers in particular to paragraphs 47(p. 126) and 84 (pp. 213 and 214), and paragraph 86 (p. 218) among those relatingto Greece. 2907. Even if those various comments could have been put forward by Unicem during theadministrative procedure, they would not, however, have prevailed over the bundleof documents referred to in recital 25 of the contested decision on the basis ofwhich the Commission rightly found in recital 53 that the emergence of the issueof imports into Western European of cement from Greece had given rise  besidespolitical actions, isolated actions on some markets, and bilateral contacts betweenthe national authorities of some Community countries  to the setting-up atEuropean level of the ETF for the purpose of examining dissuasive and persuasivemeasures to eliminate destabilising imports of cement (primarily those fromGreece) into Western Europe, in particular into Italy, one of the countries mostthreatened by such imports. 2908. Nor could those comments have precluded the findings set out by the Commissionin the contested decision, recital 25, paragraphs 24 and 47, concerning theparticipation of Unicem's Mr Albert in the meeting of the ETF subgroup on 'stickactions on 17 March 1987 (documents 33.126/4858 to 4861), in accordance withwhat had been agreed at the setting-up, at the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986, of workingsubgroups to assist the ETF, which was no longer able to deal on its own with theburden of work created by the task entrusted to it (contested decision, recital 25,paragraph 24; documents 33.126/18858 and 18862). Accordingly, they could nothave provided a basis for excluding Unicem's responsibility in the infringementfound in Article 4(1) of the contested decision. 2909. The Court also points out that, contrary to what Unicem appears to claim, theCommission has never maintained either in the SO or in the contested decision thatthe ECEC took part in the measures to combat the imports into Western Europeof cement from Greece. The comments that Unicem might have been able tomake during the administrative procedure in order to deny all involvement of theECEC in the resolution of the Greek problem would therefore have been totallyirrelevant. 2910. In conclusion, Unicem's comments would not have had even a small chance ofaltering the outcome of the administrative procedure. Unicem has not thereforeestablished an infringement of its rights of defence in that regard during theadministrative procedure. 11. Case T-55/95 Asland v Commission 2911. In its observations of 10 February 1997, Asland states that in the numerousdocuments in the national files there is not the least evidence of any participationor intervention on its part in the activities and implementation measures of theETF. On the contrary, it is clear from the letter of 25 November 1986 sent by thedirector of the CMF to the director of the OFT (documents 33.126/17641 to 17653) that Spain represented a serious threat to the application of the principle of non-transhipment to home markets, to such an extent that, before it joined theCommunity, the European cement industry had brought anti-dumping proceedingsagainst it. Those considerations make it difficult for the Commission to sustain itsargument that the Spanish undertakings, and Asland in particular, should havetaken part, only five months after their country joined the Community, in collusivepractices and agreements intended to ensure non-transhipment to home markets. Asland then states that the minutes of the CMF meetings held between 9 January1985 and 1 June 1988 (documents 33.126/17056 to 17259) do not contain anyreference to any responsibility or participation on Asland's part in anti-competitiveactions on the British or European market. On the other hand, those variousdocuments mention other European undertakings, such as Titan, and reportdiscussions on the aid granted by the Hellenic Republic to its cement industry,negotiations held by the United Kingdom Government and the Greek Governmentwith the Commission, and contacts between the trade and the European Parliamenton that matter (see documents 33.126/17166 to 17170, in particular 17168). ForAsland, it is logical to suppose that the same wish to comply with the law inspiredthe discussions which were held in Rome on 28 May 1986 concerning the Greekquestion. 2912. In its observations of 5 February 1998, Asland states that it was not one of the'members of the European Task Force which were to take up shares inInterciment SA, to which Holderbank wrote on 22 September 1986 (document33.126/18328). Asland submits that this proves that it did not in any wayparticipate in the ETF. 2913. It must nevertheless be stated that those comments, even if they could have beenmade by Asland during the administrative procedure, could not have refuted thefinding by the Commission in the contested decision, recital 25, paragraph 1,concerning Asland's participation in the meeting on 28 May 1986 in Rome, atwhich the European producers for the first time agreed to respond rapidly, througha common front, with dissuasive and persuasive measures to the decision of theGreek industry to export 2 million tonnes of cement into Western Europe(document 33.126/18771). They could not therefore have provided a basis forexcluding the responsibility of Asland in the infringement found in Article 4(1) ofthe contested decision. 2914. With regard to the particular emphasis that Asland might have been able to placeon the fact that it was not a member of the ETF and that Holderbank had notrequested that it pay for a proportion of the shares in Interciment, it must bestated, first, that the Commission has never taken the view that Asland was a directmember of the ETF (see, in particular, its findings in the contested decision, recital25, paragraph 24, concerning the composition of the ETF) and, second, that in thecontested decision, recital 26, paragraph 6, it finds that the Spanish undertakingwhich received the letter of 22 September 1986 by which Holderbank requested payment of the Spanish proportion of Interciment was Hornos Ibéricos. Thecomments that Asland might have been able to formulate on the basis of document33.126/18328, referred to in paragraph 2912 above could therefore at most havecorroborated points which the Commission has not disputed. 2915. Finally, it has already been repeated many times (see in particular paragraphs 2819and 2841 above) that the Commission correctly perceived the political dimensionand economic background of the Greek file (see footnotes 113 and 115 of thecontested decision). The comments which Asland might have put forward in thecourse of the administrative procedure to reflect those two aspects of the file couldtherefore only have repeated considerations duly raised and not disputed by theCommission in the contested decision. 2916. In conclusion, Asland's various observations could not have had even a smallchance of altering the outcome of the administrative procedure. Asland has nottherefore established an infringement of its rights of defence in that regard duringthe administrative procedure. 12. Case T-58/95 Uniland v Commission and Case T-59/95 Oficemen v Commission 2917. Uniland and Oficemen claim, in their observations of 10 February 1997 and 3March 1998, that in the documents to which they had access as a result of themeasures of 2 October 1996 and 18 and 19 June 1997 there is no mention orevidence of their participation in the agreement setting up the ETF, as found inArticle 4(1) of the contested decision. On the contrary, various documents in thefiles relating to Greece, the United Kingdom and Italy show that the steps takento counter imports from Greece arose not from a multilateral agreement in whichUniland and Oficemen took part but from the unilateral reactions by Britishproducers on the one hand and Italian producers on the other. 2918. Among the documents in the file concerning Greece, Uniland and Oficemen referin their observations of 10 February 1997 and 3 March 1998 to a series ofdocuments reflecting the purely bilateral nature of the contact at the time betweenGreek and Italian producers on the one hand and between Greek and Britishproducers on the other, and also the strictly local nature of the agreementsproposed or concluded by the Italian producers, on the one hand, and by theBritish producers, on the other, in order to counter the imports onto their marketsof cement from Greece. By contrast, none of those documents contains anyreference to Uniland or Oficemen or, more generally, to European undertakingsother than Greek, British and Italian. In their observations of 10 February 1997,Uniland and Oficemen also refer to a series of minutes of meetings of the boardof directors of Heracles held between July and December 1986 (documents33.126/19878 to 19880, 19881, 19882, 19883, 19884 and 19885 to 19887). In theirobservations of 3 March 1998, they refer first of all to a letter sent on 2 September 1988 by Titan to its lawyers (documents 33.126/19195 to 19197), which explains (seein particular document 33.126/19196) that the non-performance by the Italianundertaking Calcestruzzi of the cement supply contract concluded with Titan inApril 1986 was due to an agreement between the group Calcestruzzi/Ferruzzi andthe only Italian cement producers. On that point, they also refer to documents33.126/19188 to 19193 and 19197 to 19200. They then mention a note relating toa meeting of Italian cement producers at Cementir in Rome on 12 January 1988(documents 33.126/19871 to 19873) which, to their mind, shows that the reactionto the imports into Italy of cement from Greece was that of the Italian producersalone. 2919. In their observations of 10 February 1997 Uniland and Oficemen cite severaldocuments from the file concerning the United Kingdom [minutes of the CMFmeetings in 1986 and 1987 (documents 33.126/17163, 17164, 17168 to 17172, 17173,17174, 17176, 17177, 17178, 17179, 17187, 17196 and 17215), a letter from the CMFto the OFT (documents 33.126/17646 and 17647) and minutes of a Blue Circlemeeting on 19 June 1986 (documents 33.126/10827 and 10828)] which they considercorroborate the strictly bilateral nature of the contacts between the UnitedKingdom and Greek markets (industries and public authorities) in connection withthe 'Greek problem, and also the purely local dimension of the British responsesto imports from Greece. The only references in those documents to the otherEuropean producers refer to the meetings held with Mr Sutherland, a member ofthe Commission, and with some members of the European Parliament, with a viewto obtaining action by the Commission in the case of the unlawful aid granted bythe Hellenic Republic. In their observations of 3 March 1998, Uniland andOficemen refer to other documents found among the British papers, namely theextract concerning point 1.2 ('Take-off-agreement with Greek industry) of theminutes of the meeting of Head Delegates and ETF representatives in Baden-Baden of 9 September 1986 (documents 33.126/16150 to 16155, particularly 16151and 16152), an internal Blue Circle note of 4 September 1986 headed'Management Briefing Note: Greek Imports (documents 33.126/11026 and 11027),a letter of 22 September 1986 from Blue Circle to Holderbank (documents33.126/13108 and 13109), a Blue Circle discussion note 'Cheap Imports  Meetingat 9.30 a.m. on Monday 7th July 1986 (documents 33.126/13104 to 13106), and twointernal Blue Circle notes of September 1986 (documents 33.126/11080 to 11084). They claim that all those documents prove that the United Kingdom responses toimports from Greece were strictly local in dimension, to the exclusion of anyagreement, response or measure on a European scale, and that the only actionsconcerning the resolution of the 'Greek problem in which Uniland and Oficemenwere involved were meetings to make the Community authorities (Commission andEuropean Parliament) aware of the subsidies paid by the Hellenic Republic to itscement industry. With regard to the minutes of the meeting of Head Delegatesand members of the ETF in Baden-Baden on 9 September 1986 (documents33.126/16150 to 16155), Oficemen claims that that document rules out once and forall any suspicion of its participation in the ETF, since the list of participants contains no mention of any of its representatives being present (see in particulardocument 33.126/16150). 2920. In their observations of 10 February 1997 Uniland and Oficemen refer to twodocuments among the documents in the file on Italy, namely extracts from anItalcementi letter of 26 October 1987 (document 33.126/2950) and, once again, theminutes of the meeting held at Cementir on 12 January 1988 (document33.126/19872). Those documents do not contain any reference to any participation,whether direct or indirect, by Uniland and Oficemen in the measures taken by theItalian market to counter imports from Greece. On the contrary, they confirm thepurely local dimension of those measures. In their observations of 3 March 1998,Uniland and Oficemen rely, among the Italian documents, on an extract from thereplies by Unicem to the Commission in October 1989 concerning the ETF'sactivities (documents 33.126/12060 to 12065, in particular 12063), and also a letterin which Calcestruzzi explains to the Commission that a reduction of its importsfrom Greece was attributable solely to the fact that the Italian authorities had notissued it with the authorisations necessary to construct a quay for unloading thecement (documents 33.126/16317 to 16321, in particular 16319). 2921. However, it should be recalled (see paragraph 250 above) that several of thedocuments relied upon by Uniland and Oficemen in their observations of 3 March1998 had been classified 'A or 'A: European Producers for the purposes ofconsulting the file during the administrative procedure (see documents33.126/11026, 11027, 11080 to 11084, 19195 and 19196). Furthermore, the followingdocuments were found in the Box (see paragraph 95 above): minutes of themeeting of Head Delegates and representatives of the ETF in Baden-Baden on 9September 1986 (documents 33.126/16151 to 16155, the content of which isidentical to that of documents 33.126/18857 to 18862, which were in the Box), BlueCircle's 'Management Briefing Note of 4 September 1986 (documents33.126/11026 and 11027), Blue Circle's letter of 22 September 1986 to Holderbank(documents 33.126/13108 and 13109, the content of which corresponds to that ofdocuments 33.126/11094 and 11095, which were in the Box), Blue Circle's discussionnote entitled 'Cheap Imports (documents 33.126/13104 to 13106, the content ofwhich coincides with that of documents 33.126/10992 to 10994, which were in theBox) and Blue Circle's internal notes of September 1986 (documents 33.126/11080to 11084). Uniland and Oficemen could therefore have used all those documentsin support of their reply to the SO. In those circumstances, they cannot now relyon them to establish a breach of their rights of defence during the administrativeprocedure. 2922. In any event, the comments that Uniland and Oficemen might have put forwardduring the administrative procedure on the basis of the various documents referredto in paragraphs 2918 to 2920 above in order to illustrate the bilateral contactswhich took place between the Greek and United Kingdom markets, on the onehand, and the Greek and Italian markets, on the other, when the 'Greek problem arose, could not have prevailed over the bundle of documents referred to in recital25 of the contested decision, on the basis of which the Commission rightly found,in recital 53, that, at the same time as the isolated reactions of the United Kingdomand Italian producers, the question of imports from Greece had led to the setting-up of the ETF at European level with a view to examining dissuasive andpersuasive measures to eliminate cheap imports of cement (primarily those fromGreece) into Western Europe. 2923. Nor could those comments have precluded the findings made by the Commissionin the contested decision, recital 25, paragraphs 23 and 39, concerning theparticipation of Uniland's Mr Rumeu at the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986 and in themeeting of representatives of the European cement industry in Brussels on 6November 1986. Nor could they have precluded the findings made concerningOficemen in the contested decision, recital 29, paragraph 3, with regard to theappointment at that meeting on 9 September 1986 of Mr Andia as a member ofthe ETF 'defensive measures subgroup and his participation in the meeting ofthat subgroup on 17 March 1987, on the one hand, and the presence of arepresentative of 'the Spanish industry and [who] therefore represented Oficemen... at the Head Delegates meetings of 9 June 1986, 9 September 1986 and 6November 1986, on the other. Accordingly, the comments that Uniland andOficemen might have made during the administrative procedure could not havealtered the fact that they had both indicated their support for the setting-up of theETF and for its anti-competitive object. 2924. In their observations of 3 March 1998, Uniland and Oficemen claim to have foundin the Greek file a series of cement supply contracts concluded, during the periodof the infringement, between Greek producers and other European producers(documents 33.126/19175 to 19178, 19855 to 10859, 19447 to 19454, 19754 to 19762,19770 to 19778, 19781 to 19786, 19793 to 19798, 19802 to 19812, 19817 to 19832,20011 to 20019, 20104 to 20117, 20132 to 20137, 20140 to 20147, 20148 to 20156,20157 to 20164, 20166, 20167, 20225, 20226, 20229 to 20239, 20240 to 20249 and20259 to 20267), and between Greek producers and non-member countries, fordelivery into the Community (documents 33.126/20065 to 20071). They argue thatthe existence of those various contracts is evidence that imports into theCommunity from Greece were as regular during the period of the infringementconcerned. Uniland and Oficemen therefore consider that, if they had had accessto those various documents during the administrative procedure, they would havehad an additional means of disproving the Commission's allegations that the ETF'sobjective was to limit the imports of cement (in particular cement from Greece) toWestern Europe. They add that the annual report on Titan's balance sheet for theyear 1988 (document 33.126/19432) reveals a spectacular improvement in Titan'spresence on the Italian market that year, which contradicts the Commission'sconclusions, in particular in recital 53 of the contested decision. 2925. It must first be pointed out (see paragraph 250 above) that documents33.126/19754, 19762, 19770, 19776, 19817, 19819, 19827, 20011, 20019, 20065, 20071and 20072 had been classified as 'A or 'A: European Producers for the purposesof consultation of the file during the administrative procedure. Uniland andOficemen could therefore have used all those documents in support of their replyto the SO. In those circumstances, they cannot now rely on them in order todemonstrate an infringement of their rights of defence during the administrativeprocedure. 2926. In any event, those comments could at most have enabled Uniland and Oficemento argue that the agreement setting up the ETF did not have anti-competitiveresults. They could not, on the other hand, have prevailed over the documentsreferred to in the contested decision, recital 25, paragraphs 15 and 24, and recital53, paragraph 7, on the basis of which the Commission rightly found thatagreement had pursued a manifestly anti-competitive object, namely the eliminationof imports into Western Europe, which suffices to render it contrary to Article85(1) of the Treaty (see the case-law cited in paragraph 837 above). 2927. In conclusion, none of Uniland and Oficemen's comments would have had even asmall chance of altering the outcome of the administrative procedure. Uniland andOficemen have therefore not shown that there was an infringement of their rightsof defence in that regard during the administrative procedure. 13. Case T-60/95 Irish Cement v Commission 2928. In its observations of 10 February 1997, Irish Cement claims, first, that the meetingsof 9 and 10 September and 6 November 1986 at which it was invited to assist in thelobbying of European politicians and, in particular, Mr Sutherland, a member ofthe Commission, against Greek State aid, were used by the Commission as evidencethat the ETF was a Cembureau body in which Irish Cement was implicated directlyand by reason of the fact that it was a direct member of Cembureau. It maintainsthat the Commission did, however, have evidence in a series of minutes of CMFmeetings, showing, first, that the meetings on 9 and 10 September 1986 betweenthe 'European Cement Makers and members of the European Parliament hadbeen organised and coordinated by Blue Circle (see documents 33.126/17163 and17168) and, second, that the purpose of the meeting in Brussels on 6 November1986 was to prepare for the meeting between 'Heads of EEC Cement Industriesor 'Senior representatives of a number of European cement industries and MrSutherland (see documents 33.126/17176 and 17182). Contrary to what theCommission alleges in the contested decision, all those documents show that noneof those meetings was a meeting of 'Head Delegates of Cembureau, that the ETFwas merely an association of major European cement producers created for thepurposes of lobbying, that the activities of the ETF could not therefore be imputedto Cembureau, which was not even mentioned in those various documents. It is also clear from those documents that no reference was made at those two meetingsto the Cembureau agreement. In its observations of 5 January 1998, Irish Cementalleges that several more documents concerning the meetings on 9 and 10September 1986 (documents 33.126/11052, 11053, 11056 to 11060, 11061, 11062 and7717 to 7722) would have been useful to it in order to show that the participationof its representative (Mr Quirke) in those meetings was legitimate and in goodfaith, since, to Mr Quirke's knowledge, the sole purpose of those meetings was tomake the Community authorities aware of the problem posed by Greek State aid. 2929. In its observations of 5 January 1998, Irish Cement cites various minutes ofmeetings of Cembureau's Executive Committee (documents 33.126/7882 to 7886and documents 33.322/1423 to 1444), and more specifically the minutes of themeeting of the Executive Committee of Cembureau on 30 May 1983 (documents33.322/1429 and 1431) and again stresses that the ETF meetings were not meetingsof Cembureau 'Head Delegates. Those documents show that those meetingswere always prepared by the Executive Committee, could be convened only by thatcommittee and were always the subject of a subsequent report at committee level. That was not the case for the ETF meetings, which were convened by Blue Circle,and more specifically by Sir John Milne, as shown by documents 33.126/7717 to7722 (note of Mr Sytor, of CBR, of 11 September 1986, concerning the meetingsin Baden-Baden and Strasbourg on 9 and 10 September 1986) for the meetings of9 and 10 September 1986. 2930. The Court points out, however, that, as regards the meetings of 9 and 10September 1986, the comments which Irish Cement might have made during theadministrative procedure on the basis of the various documents referred to in thetwo preceding paragraphs could at most have shown that, during those two days,the European producers gave themselves over to political pressure connected withthe Greek question. Its comments would not, however, have refuted what wascontained in the documents referred to in the contested decision, recital 25,paragraphs 22 to 32, which make it clear that a meeting of 'Head Delegates andrepresentatives of the task force was held in Baden-Baden towards the end of theafternoon of 9 September 1986, a meeting in which Mr Quirke, the representativeof Irish Cement, took part, and which was, after an express reminder of theunlawful purpose of the ETF, exclusively devoted to the composition of the ETF,the organisation of its tasks and the various measures which had been entrusted toit for its consideration (contested decision, recital 25, paragraphs 22 to 32;documents 33.126/18857 to 18862). 2931. It should also be pointed out that, in the CBR note referred to by Irish Cement(see paragraph 2929 above; documents 33.126/7717 to 7722), mention is made ofa meeting in Baden-Baden on 9 September 1986 which had 'the essential object[of the] debriefing of the working group (Task Force committee established inStockholm). According to the note, that meeting dealt with the creation of theJoint Trading Company and the 'studies carried out by, or under consideration within, the working group. Those statements therefore corroborate rather thaninvalidate the findings made by the Commission in the contested decision, recital25, paragraphs 22 to 32, on the basis of documents 33.126/18849 to 18862. Inaddition, the same CBR memorandum makes it clear that at the meeting inquestion Sir John Milne of Blue Circle 'agreed not to break off contacts with theGreek cement producers, but to redirect those contacts towards the idea of anundertaking by the other cement producers to take substantial quantities of Greekcement (Trading Group idea) [;] the working group is to continue. Later in thatdocument, under the heading 'other points, it is indicated that 'Mr Quirke hasstated that, in his opinion, a fourth dimension should be added to the threeactions already underway or provided for (namely Trading Group  protectionmeasures taken by national governments  lobbying the EEC), namely, action atCembureau Liaison Committee level. Those extracts reveal that Irish Cement'sinterest in the action contemplated to counter imports from Greece was notconfined to political initiatives but also extended to the private measurescontemplated in order to restrain such imports. They would therefore not havehelped Irish Cement's defence in the administrative procedure against theobjections relating to the setting-up of the ETF. 2932. As regards the meeting in Brussels on 6 November 1986, described in the contesteddecision, recital 25, paragraphs 39 to 43, the Commission has never denied that thepurpose of that meeting was in part to prepare for the meeting with Mr Sutherland(contested decision, recital 25, paragraph 43). Any comments that Irish Cementmight have made in the course of the administrative procedure on the basis of thedocuments referred to in paragraph 2928 above could therefore at most haveconfirmed the matters duly taken into consideration by the Commission. Theycould not, on the other hand, have altered the fact, apparent from the notesconcerning that meeting and cited in the contested decision, recital 25, paragraphs39 to 43 (documents 33.126/19007 and 19008), that the participants, including IrishCement, agreed that the ETF was to continue to meet in order to followdevelopments in the threat of imports of cement from Greece onto WesternEuropean markets. 2933. Finally, the comments that Irish Cement might have made during the administrativeprocedure in order to show that the meetings in which it participated in Septemberand November 1986 had not been meetings of Head Delegates of Cembureau andthat the ETF was not a Cembureau body would not, in any event, have precludedthe findings relating to the presence of Mr Quirke at the two meetings referred toin the contested decision, recital 25, paragraphs 22 to 32 and paragraphs 39 to 43,respectively. Accordingly, they would not have provided a basis for excluding theresponsibility of Irish Cement in the infringement found in Article 4(1) of thecontested decision. It must moreover be pointed out that, during the administrativeprocedure, the German undertakings had claimed that 'the persons present at themeetings in ... Baden-Baden and Brussels did not have the status of HeadDelegates, to which the Commission responded that 'this status was given by the task force and by the records of the meetings and not by the Commission(contested decision, recital 53, paragraph 6). Observations comparable to thosenow put forward by Irish Cement were therefore duly considered by theCommission in the contested decision. 2934. Second, in its observations of 5 January 1998, Irish Cement puts forward variousdocuments (documents 33.126/11180 to 11182 and 15386) relating to a letter sentby Blue Circle's Mr Marshall to a series of European cement producers to thankthem for their help in resolving the problem raised by Greek State aid. In its view,those documents reveal Mr Marshall's inaccuracy of expression in using the term'Cembureau people in referring to the European cement producers. IrishCement considers that if it had had access to those documents during theadministrative procedure, it would have been able to establish that the referencemade by Mr Marshall in the records of the EPC meeting of 13 May 1987 to the'Cembureau Task Force to designate the 'European Task Force was due to thesame inaccuracy of expression and that, contrary to what the Commissionconcluded from it in paragraph 16 of the SO, that reference did not therefore meanthat the ETF was a coalition formed at Cembureau level. 2935. However, those comments might equally well have strengthened the Commission'sview that the cartel set up by various European cement producers to counterimports into Western Europe of cement, from Greece in particular, wasattributable to 'Cembureau people and, therefore, that it had been created at thelevel of that European association. In any event, they could not have refuted thefinding made in the contested decision, recital 24, paragraph 3, that Mr Marshall'held a position giving him a good knowledge of the structures of Cembureau andits activities, a finding which led the Commission to consider that the reference tothe 'Cembureau Task Force in the memorandum concerning the EPC meetingon 13 May 1987, drawn up by Mr Marshall, 'effectively establish[ed] a link betweenCembureau and the task force, a link resulting from the actual terms chosen by MrMarshall. 2936. In any event, Irish Cement's comments on that point would not have precluded thefindings, referred to in paragraphs 2930 and 2932 above, on the basis of which theCommission rightly concluded that Irish Cement participated in the agreementsetting up the ETF. 2937. In conclusion, none of Irish Cement's observations had even a small chance ofaltering the outcome of the administrative procedure. Irish Cement has nottherefore established an infringement of its rights of defence in that regard duringthe administrative procedure. 14. Case T-65/95 Italcementi v Commission 2938. First, in its observations of 10 February 1997, Italcementi maintains that Chapters7 and 17 of the SO, concerning the Greek market, confirm that the Commissioncommitted a serious error of assessment when it failed to accord the necessaryimportance to the obvious illegality of the export activities of the Greek producers,who not only received subsidies from their government that were incompatible withArticle 92 of the EC Treaty (now, after amendment, Article 87 EC) but had alsoentered into a 'gentlemen's agreement in respect of their exports to theCommunity, an agreement whose actual existence and potentially anti-competitivenature the Commission had itself recognised in the chapters of the SO concerningGreece. According to the applicant, those facts would have been particularly usefulto it in order to stress the purely defensive nature of the ETF. 2939. In its observations of 26 November 1997, Italcementi refers to a further series ofdocuments (documents 33.126/19369 to 19377) as evidence of the existence since1962 of specific agreements between Greek cement producers concerning theirexports. Those agreements were intended to prevent any excess capacity disturbingthe internal equilibrium of their home market. 2940. However, the Court points out in that regard that at the hearing on 12 March 1993Lafarge stressed that it was legitimate self-defence which had allegedly inspired thesetting-up of the ETF (contested decision, recital 53, paragraph 8, firstsubparagraph). In recital 53, paragraph 8, second to sixth subparagraphs, theCommission sets out the reasons which prompted it to reject that argument. In thelight of the reasons thus given by the Commission, in particular in the fifth andsixth subparagraphs, namely that various documents relating to the ETF indicatethat its objective was broader than merely countering imports from Greece, thesame fate would necessarily have awaited Italcementi's argument alleging that atthe time of the ETF there was a Greek export cartel. 2941. Second, in its observations of 10 February 1997, Italcementi claims that the nationalchapters of the SO (in particular Chapters 7 and 17, concerning Greece, and 4 and14, concerning the United Kingdom) and the documents relating to those chapters(documents 33.126/10827, 10828, 17157, 17158, 19879, 19880, 17163, 17164, 17169,17171, 17172, 17176, 17168, 17178, 19884, 19886, 17193 and 17220, and 33.322/1321and 1322) demonstrate the purely marginal role of the ETF's activities in thesolution of the 'Greek problem, a solution which essentially arose out of bilateralnegotiations, under the aegis of the Commission, between the industries, the UnitedKingdom Government and the Greek Government. None of those documentsmentions the ETF, which shows that it was helpless and powerless to resolve thedifficulties created by the imports of cement from Greece onto Western Europeanmarkets. Those documents prove that, in actual fact, the ETF, far from being apan-European decision-making centre of anti-competitive activities designed tocounter imports from Greece, was at most an 'information terminal through whichthe cement producers in the various Member States confronting the Greek threatkept one another informed of the measures adopted or contemplated in that regard, on the one hand, and a study and pressure group intended to make theCommunity authorities aware of that problem, on the other. The absence of aEuropean agreement to counter the imports from Greece can be explained by thefact that the avowed objective of the Greek producers in their search for newoutlets for exports was initially the United Kingdom market (document33.126/19882). It was only after the tripartite (Commission/GreekGovernment/United Kingdom Government) fixing of quotas for exports fromGreece to the United Kingdom that the Greek cement industry turned towards theItalian market. Documents 33.322/1321 and 1322 (extract from the minutes of themeeting of Oficemen's steering committee), which relate the steps taken by theBritish producers so that their Spanish counterparts would request the support ofthe Spanish members of the Commission in resolving the 'Greek problem, againgo to show the absence of any planned initiative at ETF level in order to deal withthat problem. Italcementi then refers to document 33.126/17220 (extract of theminutes of the meeting of the CMF of 3 June 1987), which shows that, when theFrench market was confronted with the problem of imports from Greece, strictlybilateral discussions were held between the French and the British governmentalauthorities. 2942. In its observations of 26 November 1997, Italcementi refers to a series ofdocuments (documents 33.126/16484 to 16487, 16478, 16473, 16474, 16469, 11062to 11064, 16489, 16490, 16488, 16470, 16471, 16491 to 16493, 16463, 16464, 16459,16498 to 16501, 16494, 16495, 16465 to 16468, 11182, 16436 to 16441 and 16508)to show the pressure brought to bear by Blue Circle and the other Europeancement producers, particularly the German producers, in order that they shouldsupport the lobbying efforts carried out by the British industry to persuade theCommunity authorities to challenge the unlawful imports from Greece. Thosedocuments confirm the lawfulness of the ETF's activities and the decisive roleplayed by the British industry in the resolution of the 'Greek problem. Otherdocuments (documents 33.126/18868, 18869 and 11086) show the independence ofBlue Circle's commercial policy, since Blue Circle, while seeking to rally itsEuropean colleagues to the lobbying activities of the ETF, continued to manage itscommercial relations with the Greek cement producers in total freedom, buyingGreek cement for its operations in the United States. Those documents confirmtherefore that the ETF, beside its lobbying function, was simply a forum for theexchange of information a posteriori concerning political action and commercialactivity taking place on the various markets. 2943. In its observations of 26 November 1997, Italcementi also produces severaldocuments (documents 33.126/19014 to 19016 and 11165) as evidence that theactual results of the negotiations concerning the Greek question were achieved bythe British cement producers, quite independently of the ETF; the sole effect ofthose lobbying activities, which was moreover indirect and long term, was theCommission's revision in December 1986 of its decision concerning Greek State aid. Those documents support Italcementi's argument as to the purely marginal role of the ETF, which was in fact used by the British producers, while they at the sametime took a much more effective approach in order to find a solution to their ownproblem. 2944. It must, however, be found that even if Italcementi could have put forward thosecomments during the administrative procedure they would not have precluded thefindings made by the Commission in the contested decision, recitals 24 and 25, thatis to say, that the threatened exports by Greek producers which 'at the end of1985/early 1986, ... looked towards Western Europe, especially ... Italy, where smallassociations formed by consumers and small import/export companies had takenthe step of importing Greek cement (contested decision, recital 24, paragraph 1),had given rise to the setting-up of the ETF on the initiative of a series of majorEuropean producers, including Italcementi, for the purposes of examining, with aview to submitting recommendations to the Head Delegates, the dissuasive andpersuasive measures capable of eliminating imports of cheap cement (primarilyfrom Greece) into Western Europe. 2945. Any particular emphasis which Italcementi might, during the administrativeprocedure, have been able to place on the ETF's marginal contribution to thesolution of the 'Greek problem could not have prevailed over the documentsreferred to in the contested decision, recital 25, paragraphs 15 and 24, and recital53, paragraph 7, on the basis of which the Commission found that the objectpursued through the agreement setting up the ETF was manifestly anti-competitive,which sufficed to make that agreement contrary to Article 85(1) of the Treaty (seethe case-law cited in paragraph 837 above). 2946. Third, Italcementi maintains that, even on the assumption that the ETF's activitiesmay have been unlawful, if the various national documents to which it refers in itsobservations of 10 February 1997 in order to show the nature of the reactions tothe imports from Greece could have been presented during the administrativeprocedure, they would of necessity have prompted the Commission to draw adistinction, in its assessment of the gravity of the individual responsibility of thevarious participating undertakings, between, on the one hand, the United Kingdomproducers which brought all sorts of pressure to bear in order to block importsfrom Greece and which eventually managed to reduce them to a minimum thanksto the tripartite agreement mentioned in paragraph 2941 above and, on the other,the other European producers, including Italcementi and the other Italianproducers, which watched the arrival of considerable quantities of Greek productsonto their market and even had to grant Calcestruzzi, their biggest customer inItaly, a significant price reduction upon the conclusion of the supply contract inApril 1987. 2947. However, even if Italcementi could have made those comments during theadministrative procedure, they would not have been of such a nature as toinvalidate the general conclusion following from the various factual evidence adduced by the Commission in recital 25 of the contested decision as to theprominent part played by Italcementi in the setting-up of the ETF, of which it wasone of the instigators, through its participation in the meetings in Rome on 28 May1986, in Zurich on 4 June 1986 and in Stockholm on 9 June 1986, before takingpart, in its two-fold capacity as direct member of the ETF and Head Delegate, atthe series of meetings of or relating to the ETF organised between 17 June 1986and 11 February 1987. 2948. In conclusion, none of Italcementi's observations would have had even a smallchance of altering the outcome of the administrative procedure. Italcementi hasnot therefore established an infringement of its rights of defence in that regardduring the administrative procedure. 15. Case T-68/95 Holderbank v Commission 2949. First, in its observations of 8 February 1997, Holderbank puts forward, among thedocuments in the file concerning the United Kingdom, a series of documents(documents 33.126/17157 to 17159, 17160, 17180, 17181, 17184, 17182, 17183, 17191to 17194, 17219 to 17225, 17624, 17625, 17631 to 17633, 17635 to 17637, 17638,17641 to 17653 and 17654) to show that, at the time of the ETF, the CMF, inagreement with the United Kingdom Government and authorities, had had contactsand discussions with the Commission in order to resolve the problem raised byimports of subsidised cement from Greece. Holderbank considers that if it hadknown of those documents it would have been able to make use of them tosupplement its defence concerning the charges relating to the ETF. 2950. It has, however, already been stated several times (see in particular in paragraph2819 above) that the Commission had perfectly understood that the emergence ofthe problems connected with the imports of cement from Greece had given rise toactions to make the national and Community authorities aware of the problems andto bring pressure to bear upon them, on the initiative of the United Kingdomproducers, but that the Commission was not concerned with that kind of action inthe contested decision (see footnote 115). Any comments that Holderbank mighthave put forward during the administrative procedure to demonstrate the politicalactivities brought into being by the appearance of the Greek export problem couldtherefore only have illustrated one aspect of the file noted by the Commission inthe contested decision. They would not, on the other hand, have prevailed over thebundle of documents referred to in the contested decision, recital 25, on the basisof which the Commission rightly found, in recital 53, that alongside those politicalactions, the Greek issue had led to the setting-up of the ETF, on the initiative ofa group of major European producers, including Holderbank, with a view toconsidering the dissuasive and persuasive measures likely to eliminate cheapimports of cement (primarily from Greece) into Western Europe. 2951. Second, in its observations of 8 February 1997, Holderbank refers to a note ofHeracles' board of directors of 29 September 1986 (documents 33.126/19881 and19882) as evidence that the imports into the United Kingdom of cement fromGreece were prevented by the United Kingdom agreement alone, not byinternational agreements, such as the ETF, in which Holderbank took part. Whilerecognising that the 'Greek problem was tackled at ETF level, Holderbank claimsthat that note convincingly demonstrates that the ETF was a mere discussion forumand possessed no means of taking action. 2952. The Court points out, however, that the note in question states that 'until now, inEngland, the agreement has terrorised the market and has prevented the majorundertakings in the ready-for-use cement ... sector from buying Greek cement forfear of reprisals. Contrary to what Holderbank would appear to maintain, it doesnot state that the 'agreement in question was the United Kingdom agreement. 2953. In any event, the comments which Holderbank might have been able to makeduring the administrative procedure on the basis of that note could not haveprevailed over the bundle of documents referred to in recital 25 of the contesteddecision, on the basis of which the Commission has rightly found in recital 53 that,alongside the local reactions of the most directly threatened markets (in particular,the United Kingdom market), the emergence of the problem of imports fromGreece had led to the setting-up of the ETF, on the initiative of a series of majorundertakings, including Holderbank, for the purpose of examining dissuasive andpersuasive measures to eliminate destabilising imports of cement (primarily thosefrom Greece) onto Western European markets. 2954. Third, in its observations of 8 February 1997, Holderbank maintains that it isapparent from Chapters 7 and 17 of the SO  particularly from Chapter 17,paragraph 86, subparagraphs 1, 2 and 3, page 218  concerning the Greek market,that the Commission itself had considered that the effect of the Greek cementproducers' agreements restricting competition was to eliminate competition bothon the local market and also at the level of export transactions towards otherMember States. Holderbank considers that if those findings of the Commission hadbeen made available to it at the administrative procedure stage, they would havebeen useful to it then, inasmuch as they show that the Greek cement producers notonly received subsidies from their national authorities, but also carried on theirlocal and export activities under the cover of agreements and concerted practices. Holderbank considers that that fact, while it might not have excused the collectivedefensive response organised through the ETF, would nevertheless have been heldby the Commission to be an exonerating circumstance when it assessed the amountof the fine. In addition, the Greek agreement explains why Holderbank could nothave launched the counter offensive in Greece alleged by the Commission, or thatit could have done so only with considerable difficulty. 2955. However, as has already been stated on several occasions (see in particularparagraph 2841 above), at the hearing on 12 March 1993 Lafarge had insisted thatit was legitimate self-defence which had inspired the setting-up of the ETF(contested decision, recital 53, paragraph 8, first subparagraph). In recital 53,paragraph 8, second to sixth subparagraphs, the Commission sets out the reasonswhy it rejected that line of argument. In the light of the considerations thus set outby the Commission, in particular in the fifth and sixth subparagraphs, namely thatvarious documents concerning the ETF show that its objective was more generalthan simply to counter imports from Greece, the same fate must necessarily haveawaited Holderbank's argument alleging that, at the time of the ETF, there was aGreek export cartel. For the same reason, that fact could obviously not have beenheld to be a mitigating circumstance for the purposes of setting the fine, which was,moreover, imposed on account of the infringement referred to in Article 1 of thecontested decision. 2956. Next the Court points out that in the contested decision the Commission confineditself to stating, first, that the 'reprisal measures taken by the European producerson the Greek market (in the form of exports to Greece) had appeared among thestick actions envisaged in the Zurich/Céligny document (see contested decision,recital 25, paragraph 4, fourth indent; document 33.126/18774) and that, second,the possibility and economic feasibility of such a counter attack had been studiedat the various meetings of or relating to the ETF (contested decision, recital 25,paragraphs 11, 12, 17, 24, 26 and 45). The Commission has not, however, everclaimed that those measures were actually implemented. On the contrary, it findsin recital 25, paragraph 26, of the contested decision that, at the meeting of HeadDelegates and representatives of the ETF in Baden-Baden on 9 September 1986,'as regards item 3, exports to Greece, the Task Force was instructed to submit arecommendation to the Head Delegates by the end of September but seriousdoubts as to economic feasibility were expressed. In short, those counter-attackmeasures were not found to be an infringement in Article 4 of the contesteddecision. 2957. In conclusion, none of Holderbank's observations could have had even a smallchance of altering the outcome of the administrative procedure. Holderbank hasnot therefore established an infringement of its rights of defence in that regardduring the administrative procedure. 16. Case T-70/95 Aker v Commission and Case T-71/95 EUROC v Commission 2958. In their observations of 10 February 1997 Aker and EUROC put forwardItalcementi's notes of 15 October 1986 (documents 33.126/2945 to 2948), 26October 1987 (documents 33.126/2949 to 2951) and 13 November 1987 (documents33.126/2954 to 2960) as evidence that the 'Greek problem was at the time dealtwith on a purely bilateral basis between the principal Italian cement producers and their Greek counterparts. They refer in particular to the Italcementi note of 13November 1987, referred to above, which states: 'We must consider whom tocontact, how to contact the Greeks and to propose a truly viable agreement, whichshould not last longer than two years, with the intention of subsequently managingthe Greek cement industry better with the European producers, either by directparticipation in share capital, or by indirect presence. The statements containedin that document contradict the Commission's argument that there weremultilateral arrangements or concerted practices previously decided upon betweenEuropean producers at Cembureau or ETF level. 2959. It must, however, be observed that the comments which Aker and EUROC mighthave made during the administrative procedure in order to emphasise that theemergence of the 'Greek problem had given rise to bilateral contacts, inparticular between the Italian and Greek producers, could not have prevailed overthe bundle of documents referred to in recital 25 of the contested decision on thebasis of which the Commission rightly found in recital 53 that the problem ofimports into Western Europe of cement from Greece had given rise, alongsidethose particular steps, to the setting-up of the ETF at European level for thepurpose of examining dissuasive and persuasive measures to eliminate cheapimports of cement (primarily from Greece) into Western Europe. 2960. Nor could those comments have invalidated the findings made by the Commissionin recital 25, paragraphs 9, 14, 23, 34 and 45 concerning the participation of Akerand EUROC representatives in the meeting in Stockholm on 9 June 1986, themeeting of Head Delegates and members of the ETF in Baden-Baden on 9September 1986, and the ETF meetings on 19 August, 21 October 1986 and 11February 1987. Accordingly, those observations could not therefore have provideda basis for excluding the responsibility of Aker and EUROC in the infringementfound in Article 4(1) of the contested decision. 2961. In conclusion, the comments of Aker and EUROC would not have had even asmall chance of altering the outcome of the administrative procedure. Aker andEUROC have not therefore established an infringement of their rights of defencein that regard during the administrative procedure. 17. Case T-88/95 Blue Circle v Commission 2962. In its observations of 10 February 1997, Blue Circle claims that if it had had accessto the documents in the Greek file during the administrative procedure, they wouldhave enabled it to show, first, that the exports from Greece, which received publicsubsidies thus lending themselves to dumping and which formed the subject-matterof a local cartel, owed nothing to fair competition; second, that Blue Circle'scoordination of the actions of the other European producers was lawful, since itrelated exclusively to lobbying the European authorities (European Parliament and Commission); and, third, that the reaction of the United Kingdom producers toimports from Greece took place within a strictly local framework and was unrelatedto Cembureau. 2963. The Court finds, however, that the comments which Blue Circle might have madeduring the administrative procedure on the basis of the Greek file, in order to showthat the United Kingdom producers' reactions to exports by Greek undertakingstook place within a strictly local framework, and that the coordination by BlueCircle at European level upon the emergence of the problem of Greek importsrelated exclusively to political action, could not have prevailed over the bundle ofdocuments referred to in recital 25 of the contested decision, on the basis of whichthe Commission rightly found, in recital 53, that the emergence of the 'Greekproblem had given rise to the setting-up of the ETF at European level, on theinitiative of a number of major European producers, including Blue Circle, for thepurposes of examining dissuasive and persuasive measures to eliminate destabilisingimports (primarily from Greece) onto western European markets. 2964. Next, the Court has already stated on several occasions (see in particular paragraph2841 above) that the Commission had correctly understood the economicbackground to the reactions of the European producers to exports by Greekundertakings. Thus, it states in footnote 113 in the contested decision that '[w]henGreece joined the Community, its cement industry was receiving a considerableamount of State aid, before citing a number of decisions which it had takenconcerning that aid, during and after the period in which the ETF was operational. In recital 53, paragraph 8, of the contested decision, the Commission sets out indetail the grounds which led it to reject submissions similar to those now made byBlue Circle, alleging that the setting-up of the ETF was the result of legitimate self-defence against unlawfully subsidised exports from Greece. For the reasonsexpressed in that part of the contested decision  in particular in the fifth and sixthsubparagraphs  namely that, according to certain documents referred to in recital25 of the contested decision, the ETF had a more general objective than simplycountering imports from Greece, the same fate must necessarily have awaited BlueCircle's submission that, at the time of the ETF, there was a Greek export cartel. 2965. In its observations of 12 December 1997, Blue Circle observes that, in the contesteddecision, recital 25, paragraph 43, the Commission claims that documents33.126/19009 and 19010 refer to the meeting of Head Delegates in Brussels on 6November 1986, whereas they are in fact the notes of 10 November 1986concerning the meeting on 6 November 1986 between Mr Sutherland, a memberof the Commission, and representatives of the European cement industry. 2966. It is correct that the documents in question refer not, as the Commission suggestsin the contested decision, recital 25, paragraph 43, to the preparation, at the 'HeadDelegates meeting in Brussels on 6 November 1986, of the document for MrSutherland in anticipation of the meeting which had been arranged with him concerning the Greek matter, but rather to the meeting in question, which tookplace that same day in Brussels. Only documents 33.126/19007 and 19008, cited inthe contested decision, recital 25, paragraph 39, record the discussions concerningthe preparation of the document intended for the member of the Commission. Blue Circle has not, however, shown how the outcome of the administrativeprocedure could have differed if, during that procedure, it could have raised thatmistake by the Commission, a mistake which relates to an aspect of the ETF'sactivities which was not subsequently found to be an infringement in the contesteddecision, namely, that steps were taken to make the Community authorities awareof the concerns caused by imports from Greece (see contested decision, footnote115). 2967. In conclusion, there was not even a small chance that Blue Circle's observationscould have altered the outcome of the administrative procedure. Blue Circle hasnot therefore established an infringement of its rights of defence in that regardduring the administrative procedure.                                                                     Agreement on the setting-up of the Joint Trading Company, Interciment (Article 4(2)of the contested decision) A  Introduction 2968. According to Article 4(2) of the contested decision, Holderbank, Blue Circle,Oficemen, Asland, Uniland, Hispacement, SFIC, Lafarge, Ciments Français, BDZ,Dyckerhoff, Heidelberger, Aker, EUROC, CBR, Italcementi, Unicem and Cementir'infringed the provisions of Article 85(1) of the EC Treaty from 9 June 1986 to 26March 1993 by participating in an agreement on the setting-up of the Joint TradingCompany, Interciment SA, having as its purpose the carrying-out of the persuasiveand dissuasive measures against those threatening the stability of the membercountries' markets. 2969. Except for Hispacement, which has not brought an action for annulment of thecontested decision, all the undertakings and associations of undertakings referredto in Article 4(2) put forward arguments seeking annulment of that provision. Oneline of arguments seeks to deny that the setting-up of Interciment constituted aninfringement. The great majority of the applicants deny any involvement in theinfringement found in Article 4(2). Finally, several of them challenge the period forwhich that infringement was found to exist or, at least, the duration of their ownparticipation in the infringement. The applicants concerned will be identified whenthe various arguments are considered. 2970. Moreover, Dyckerhoff, SFIC, Heidelberger, Lafarge, Asland, Holderbank, Aker,EUROC and Cementir allege that, when making the finding of the infringementin Article 4(2) of the contested decision, the Commission breached their rights of defence by failing to give them access during the administrative procedure to thewhole of the SO and investigation file, thus depriving them of allegedly exculpatoryevidence. 2971. Aalborg (T-44/95) also puts forward a line of argument seeking to deny anyinvolvement in the setting-up of Interciment. 2972. However, the infringement found to exist in Article 4(2) of the contested decisionhas not been alleged against Aalborg. Its argument must therefore be rejected fromthe outset. B  The unlawful nature of the setting-up of Interciment 2973. In recital 26, paragraph 1, of the contested decision the Commission refers tovarious extracts of documents. It states that it is clear from them that 'the decisionto set up the Joint Trading Company, Interciment SA, adopted at the meeting ofHead Delegates on 9 June 1986 ... constitutes an agreement between undertakingswithin the meaning of Article 85(1). The purpose of the agreement was toimplement the persuasive and dissuasive measures (either for 'stick or'carrot measures), i.e., as specified in the document drawn up at Céligny-Zurich,to purchase and market cement and clinker from the countries threatening thestability of the member countries' markets, and to take away export markets fromthe countries threatening the stability of the member countries' markets (recital54, paragraph 1). 2974. The applicants concerned put forward, in essence, four arguments denying that thesetting-up of Interciment constituted an infringement. 2975. First, CBR maintains that the role and activities of Interciment were never defined.Referring to recital 54, paragraph 2, of the contested decision, Blue Circle statesthat the Zurich/Céligny document there referred to contained mere proposals,suggested by a restricted working group, for the setting-up of a joint tradingsubsidiary. There was, however, never any agreement as to the purposes for whichthat joint subsidiary might be used. The agreement found to exist in Article 4(2) ofthe contested decision therefore concerned only the performance of purelypreparatory acts. That agreement, in so far as it was directed at setting up acompany which might have been used for anti-competitive purposes, did nottherefore infringe Article 85(1) of the Treaty. 2976. Nevertheless, it is apparent from the minutes of the meeting of Head Delegatesand representatives of the ETF in Baden-Baden on 9 September 1986 (contesteddecision, recital 25, paragraphs 22 and 32, and recital 26, paragraph 1; documents33.126/18858 and 18861) that: '[I]n accordance with the decision of the HeadDelegates at their meeting in Stockholm, a Joint Trading Company has been set up and registered at Fribourg, Switzerland, under the company name IntercimentSA, Interciment AG, Interciment Ltd ... [That] company can be put immediatelyinto operation either for stick or carrot measures. 2977. The reference in that extract to 'stick or carrot measures must refer to theZurich/Céligny document which, after defining the measures concerned (seeparagraph 2539 above), describes the tasks of the Joint Trading Company asfollows (contested decision, recital 25, paragraph 6, and recital 26, paragraph 1;documents 33.126/18776 and 18777):  to capture the orders of the principal export markets supplied by thecountries threatening the stability of the member countries' markets;  to purchase cement and clinker from the countries threatening the stabilityof the member countries' markets;  to market the quantities purchased through market intervention;  to export cement and clinker to the countries threatening the stability of themember countries. 2978. In the light of those various extracts, the Commission was entitled to take the view(contested decision, recital 54, paragraphs 1 and 2) that the objective assigned tothe Joint Trading Company Interciment was to implement the dissuasive andpersuasive measures recommended in the Zurich/Céligny document againstcountries threatening the stability of the member countries' markets. Therefore, theCommission was fully entitled to find (same recital, paragraphs 2 and 7) that theagreement setting-up Interciment constituted an infringement of Article 85(1) ofthe Treaty, an 'infringement ... serious by its nature ... [whose] object wasmanifestly restrictive. 2979. The arguments of CBR and Blue Circle must therefore be rejected. 2980. Second, Ciments Français and Holderbank claim that the Commission cannot inferany anti-competitive purpose from the objects laid down in Interciment's articlesof association. Those articles, and in particular the definition of its objects (Article2), correspond to the standard articles of association proposed by the Law Societyof the Swiss canton in question. 2981. In that connection, it is apparent from Article 2 of Interciment's articles ofassociation that 'the object of the company [was] to engage in the internationaltrade in building and construction materials and to take holdings in foreignundertakings engaged in the trade in building and construction materials [and that,]in general, the company [might] carry out all transactions and perform all functions,both for its own account and for the account of third parties, that [were] directly or indirectly related to its goal (contested decision, recital 26, paragraph 4;document 33.126/18833). However, the documents referred to by the Commissionin recital 26, paragraph 1, of the contested decision show (see paragraphs 2976 and2977 above) that the goal entrusted to Interciment was to implement the dissuasiveand persuasive measures recommended by the Zurich/Céligny document as againstcountries threatening the stability of the member countries' markets. 2982. Under cover of a standard form clause in its articles of association, Interciment wasthus given an object that was manifestly contrary to Article 85(1) of the Treaty, asis confirmed by the following extract from the Blue Circle internal memorandumof 10 July 1986 cited in recital 26, paragraph 13, of the contested decision(document 33.126/18842): 'The proposal to set up a Swiss company, the members of which would be majorEuropean cement producers, for the purpose of buying specific tonnages of cementproduced in Greece for distribution throughout the world clearly infringes Article85 of the Rome Treaty. Even if it is not expressly stated the implicit object is toinfluence inter-State trade within the EEC. 2983. Third, Dyckerhoff, Ciments Français, Lafarge, Italcementi, Holderbank, Aker,EUROC and Blue Circle state that the question whether Interciment wascompatible with Article 85(1) of the Treaty was taken into consideration before itwas set up, and also on various subsequent occasions. From the start it had evenbeen envisaged that Interciment would be notified to the Commission in order toobtain exemption pursuant to Article 85(3) of the Treaty. Dyckerhoff refers to thevarious legal opinions mentioned by the Commission in recital 26, paragraph 13,of the contested decision. It adds that since Interciment was never active it was notnecessary to make the recommended notification. Ciments Français refers to therecord of the meeting held in Rome on 28 May 1986, which reflects the concernof the participants to ensure the lawfulness of their actions and, in particular, of theproposed setting-up of a Joint Trading Company, in the light of the Communityrules on competition (contested decision, recital 25, paragraph 1). Blue Circle citesthe recommendation, at the end of the Zurich/Céligny document, that the adviceof a Community law expert should be obtained on the various actionscontemplated. It adds that Interciment was never notified to the Commissionbecause there was never any agreement as to the purposes for which it might beused. It claims that that company was never operational. 2984. It is apparent from the various documents referred to by the Commission in thecontested decision, particularly in recital 26, paragraphs 11 and 13, that both thecompatibility of Interciment with Article 85(1) of the Treaty and the advisability ofnotifying it to the Commission pursuant to Article 85(3) of the Treaty wereconsidered. However, without waiting for the legal opinions proposed, theparticipants in the meeting in Stockholm on 9 June 1986 decided to set upInterciment and to assign it the objective of implementing the dissuasive and persuasive measures recommended by the Zurich/Céligny document againstcountries threatening the stability of the member countries' markets. In addition,even though the object of the agreement setting-up Interciment was manifestlycontrary to Article 85(1) of the Treaty, notification of that agreement to theCommission, while envisaged, never took place (contested decision, recital 26,paragraph 13). 2985. The arguments of the applicants must therefore be rejected. 2986. CBR states that the amendment to Interciment's articles of association proposedby Mr Van Hove, the Belgian representative at the meeting in Brussels on 6November 1986, reflects the concern to comply with Community law. CBR refersto the notes concerning that meeting (documents 33.126/19007 and 19008) and tothe letter sent by Mr Van Hove on the day of that meeting to Mr Akermann, ofHolderbank, which states in particular: 'In order to comply with the provisions ofthe Treaty of Rome (Article 85) concerning competition, we believe that Article2 must be amended as follows: The object of the company is to engage in tradein building materials for export outside the European Economic Community.(Document 33.126/18927). 2987. It must be stated, however, that, while the participants in the meeting in Brusselson 6 November 1986 approved Mr Van Hove's proposed amendment of Article 2of Interciment's articles of association (contested decision, recitals 25, paragraph41, and 26, paragraph 4; document 33.126/19007), no undertaking has producedarticles of association that incorporate the amendment so approved. 2988. Moreover, a note found at Italcementi concerning the meeting of the ETF in Milanon 9 January 1987 states that 'the opinion of the French on Interciment is,curiously, very cautious (contested decision, recital 25, paragraph 44; document33.126/2905). 2989. With that note was enclosed (Annex 4) the 'legal opinion of a French expert onInterciment SA, who considered in particular (contested decision, recitals 25,paragraph 44, and 26, paragraphs 12 and 13; document 33.126/2915): 'Setting up Interciment SA with the proposed shareholders would quite clearlyinfringe Community legislation, since most of the major European producers willbe involved in it. If the shareholders represent more than half of their country'stotal consumption, it is not inconceivable that the EEC will consider thatInterciment is a cartel designed to hinder inter-State trade within the Community.... Simply to gain a maximum of 12 months, it is possible to notify the Commissionat the same time as the start of operations. 2990. Those statements show that the concerns as to the compatibility of Interciment withArticle 85(1) of the Treaty continued after the meeting on 6 November 1986. They therefore demonstrate that the approval during that meeting of the amendment tothe articles of association proposed by Mr Van Hove did not have the effect ofputting an end to the anti-competitive purpose assigned to Interciment on itssetting-up. 2991. CBR's argument must therefore be rejected. 2992. Fourth, CBR, Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Italcementi,Holderbank, Aker, EUROC and Blue Circle emphasise the fact that Intercimentnever became operational. Immediately after the company had been set up, it wasdecided that it should remain dormant. According to Ciments Français, Italcementiand Holderbank, that decision was based on doubts as to whether the initiative wascompatible with Article 85(1) of the Treaty. Blue Circle states that a prerequisiteto Interciment's becoming operational was that it would be notified to theCommission. Interciment was at most a legal shell, possessing no staff, executivebodies, working capital, premises or plant, which its sole shareholder, Holderbank,maintained as a dormant company, as one of the many companies which it had setup in form only. Ciments Français adds that that company was created in case itwas legally possible for Holderbank to use it, possibly for other purposes than thoseoriginally envisaged. Holderbank points out that, although it asked a number ofundertakings to settle their contributions and to take up the Interciment shares dueto them, only Italcementi and Blue Circle paid for their shares in Interciment. BlueCircle stated, however, that it did not wish to have such a shareholding on accountof its reservations as to the compatibility of Interciment with Communitycompetition law. Italcementi transferred its shares back to Holderbank on 7November 1988. 2993. The Court notes that it was in fact decided at the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986 to keepInterciment as a dormant company (contested decision, recitals 25, paragraph 32and 26, paragraph 14; document 33.126/18861). That decision was confirmed at themeeting of the ETF in Geneva on 21 October 1986 (contested decision, recitals 25,paragraph 37 and 26, paragraph 14; document 33.126/18895), at the meeting inBrussels on 6 November 1986 (contested decision, recitals 25, paragraph 41 and 26,paragraph 14; document 33.126/19007), and at the meeting of the ETF on 9January 1987 (contested decision, recital 26, paragraph 14; document 33.126/18921). 2994. However, at the meeting on 9 September 1986 mentioned in the previousparagraph, it was considered 'important to ensure that [Interciment was] readyfor operation in order to implement 'both persuasive and dissuasive measuresagainst countries threatening the stability of the member countries' markets(contested decision, recitals 25, paragraph 32, 26, paragraph 15, and 54, paragraph2; document 33.126/18861). 2995. In any event, the Commission has shown (see above paragraphs 2976 to 2978) thatthe object of the agreement setting up Interciment was contrary to Article 85(1) ofthe Treaty, as it has established that Interciment had been assigned the objectiveof implementing the dissuasive and persuasive measures proposed in theZurich/Céligny document against countries threatening the stability of the membercountries' markets. Since the anti-competitive object of that agreement has thusbeen proved, it is immaterial, for the purposes of application of Article 85(1) of theTreaty, that the agreement did not in the end lead to any such result (see to thateffect the case-law cited at paragraph 837 above). The Commission was thereforefully entitled to take the view that the setting-up of Interciment constituted 'quiteapart from the effects ... an infringement of Article 85 (contested decision, recital54, paragraph 2). 2996. In consequence, the submissions of the applicants must be rejected. C  The participation in the agreement setting up Interciment of the applicantsreferred to in Article 4(2) of the contested decision 1. Preliminary observations 2997. In recital 54, paragraph 3, of the contested decision the Commission states: 'In the light of the attendance at the Stockholm meeting, at which it was decidedto set up the Joint Trading Company, and at the Baden-Baden meeting, at whichthe tasks of the Joint Trading Company were confirmed, and the fact thatHolderbank requested payment of their quota of shares in Interciment from BlueCircle in respect of its individual holding and from the other addresses of the letterin respect of the holding of their respective countries (see Holderbank's letter of22 September 1986, referred to in paragraph 6 of recital 26), the Commissionconsiders that the following participated in the agreement to set up Interciment SA:the Holderbank group, Blue Circle, Oficemen, Asland, Uniland, Hispacement,SFIC, Lafarge, Ciments Français, BDZ, Heidelberger, Dyckerhoff, Aker andEUROC, CBR, Italcementi, Unicem and Cementir. Holderbank asked all theundertakings directly or indirectly concerned or concerned as representatives ofother companies participating in the Cembureau Task Force to pay their quota. 2998. With the exception of Holderbank and Blue Circle, which deny solely that thesetting-up of Interciment constituted an infringement and, in the alternative, theduration of that infringement (arguments analysed at paragraphs 2975 to 2985 and2992 to 2996 below and at paragraphs 3084 to 3097), all the applicants concernedput forward arguments seeking to deny their involvement in the infringement foundin Article 4(2) of the contested decision. 2. CBR, Dyckerhoff, Lafarge, Italcementi, Aker and EUROC 2999. CBR states that it has never held shares in Interciment. In its view, the Commissioncannot dispute that fact by relying on the request for payment of a quota of sharesin Interciment addressed to CBR by Holderbank or on Mr Van Hove's proposedamendment of Interciment's articles of association. Holderbank's request forpayment was made before the decision of the Belgian and Netherlandsundertakings not to take part in Interciment. It does not therefore constituteevidence of their subsequent participation. The notes of the meeting in Brussels on6 November 1986 show, moreover, that it was decided at that meeting that noCommunity undertaking would subscribe to Interciment's shares. Mr Van Hove'sproposed amendment of Interciment's articles of association demonstrates at mostthat the undertakings concerned by the Belgian representative's actioncontemplated participating in Interciment upon certain conditions. 3000. Dyckerhoff claims that it is has not been established that the setting-up ofInterciment was decided on at the meeting in Stockholm on 9 June 1986.Interciment is in actual fact the result of an independent initiative by Holderbank.Moreover, it was set up on 24 June 1986 by Swiss lawyers. Dyckerhoff also pointsout that in Blue Circle's internal memorandum of 10 July 1986, mentioned aboveat paragraph 2982 (contested decision, recital 26, paragraph 13; documents33.126/18842 and 18843), the issue was still 'the proposal to set up the Swisscompany. In Stockholm, therefore, it was merely decided to prepare for thesetting-up of such a company. 3001. Dyckerhoff claims that it never had any interest in the tasks assigned toInterciment. It sought merely to obtain the Commission's intervention in the Greekcase. Furthermore, it did not sign the document setting up Interciment, or subscribefor a quota of its shares, or provide any part of the capital either directly orindirectly. 3002. Lastly, it claims that the Commission cannot infer that it took part in the setting-upof Interciment from the fact that Holderbank requested it to subscribe toInterciment's capital. Shortly after that request, it was decided in Brussels on 6November 1986 that no Community undertaking would subscribe to Interciment'scapital. In addition, it was agreed to leave the company dormant. Dyckerhoff couldnot possibly think that maintaining a dormant company could infringe Article 85(1)of the Treaty. 3003. As is apparent from the documents referred to by the Commission in recital 26,paragraph 10, of the contested decision, Dyckerhoff was not shown Interciment'sbalance sheet as at 31 December 1986. Nor did it receive its subsequent balancesheets. Interciment belonged to Holderbank alone, and Holderbank alone decidedto wind it up in March 1993. The Commission cannot rely against Dyckerhoff on the discussions which took place at the meetings of the ETF on 9 January and 11February 1987, since it did not take part in either of those two meetings. 3004. Lafarge maintains that the Commission has not adduced evidence of itsparticipation in Interciment. It claims never to have subscribed to the company'scapital and never to have taken any action in response to Holderbank's letter of22 September 1986 requesting it to do so. 3005. Italcementi claims that the fact that it held shares in Interciment, a dormantcompany, for 21 months (from February 1987 to November 1988) does notconstitute an infringement of Article 85(1) of the Treaty. 3006. Aker and EUROC maintain that although documents 33.126/18821, 18822 and18857 to 18861, cited in recital 26, paragraph 2, of the contested decision state thatit was suggested that they should take a 12.5% share in Interciment, they nevercommitted themselves to that effect, never made a financial contribution to thatcompany's capital and were never allotted shares in it. They add that, even on theassumption that there was an unconditional undertaking to create and implementInterciment, such an undertaking did not arise out of the meeting in Stockholm on9 June 1986 and, in any event, did not concern them. They refer to Holderbank'stelex of 12 June 1986 to Blue Circle, cited in recital 25, paragraph 11, of thecontested decision (document 33.126/18781). They also claim that they had nointention of committing themselves to Interciment until it could be guaranteed thatthat company was compatible with Article 85(1) of the Treaty. 3007. Those arguments cannot be accepted. 3008. The six undertakings in question took part in the meeting in Stockholm on 9 June1986 (see paragraphs 2597, 2618, 2649, 2746 and 2759 above). 3009. Although Interciment was in fact set up on 24 June 1986 by three Swiss lawyers(contested decision, recital 26, paragraph 3; documents 33.126/18734 to 18739), thedecision to create it was taken at that meeting in Stockholm, as is shown by theminutes of the meeting of Head Delegates and representatives of the ETF inBaden-Baden on 9 September 1986 (contested decision, recitals 25, paragraphs 22and 32, and 26, paragraph 1; documents 33.126/18858 and 18861). Those minutes,like Annex 2 to the agenda of the ETF meeting of 19 August 1986 (contesteddecision, recitals 25, paragraph 10, and 26, paragraph 2; document 33.126/18821),show in addition that it was agreed at the Stockholm meeting that Intercimentshares were to be divided between eight countries and/or companies. The fact thatBlue Circle's internal memorandum mentions the 'proposal to set up a Swisscompany does not, in this respect, make it possible to disregard the variousfindings based on the documents referred to above. 3010. CBR, Dyckerhoff, Lafarge, Italcementi, Aker and EUROC also took part in themeeting of Head Delegates and representatives of the ETF in Baden-Baden on 9September 1986 (see paragraphs 2599, 2618, 2649, 2746 and 2759 above). 3011. In connection with point 1.9 in the agenda for that meeting, dealing withInterciment, the participants were first told of the setting-up, pursuant to thedecision taken by the Head Delegates at their meeting in Stockholm, of the JointTrading Company Interciment SA/Interciment AG/Interciment Ltd, with sharecapital of CHF 50 000 (wholly paid up by Swiss lawyers acting as trustee andadvanced for that purpose by Holderbank on behalf of the companies and/orcountries represented at the Stockholm meeting). It was also stated that thecompany could be immediately ready for operation for both persuasive anddissuasive measures. Mention was made of the division of shares in Intericment,agreed on at Stockholm. As regards organisation, it was pointed out that, sinceSwiss law required that the majority of the board of directors of the companyshould be Swiss, Mr Cottier, one of the three lawyers present at the setting-up ofthe company, was the sole director, but he would act on the instructions of anexecutive committee whose functions were yet to be settled and for which the ETFhad proposed the following names: Messrs d'Agostino (Italcementi  Italy),Marichal (Lafarge Coppée  France), Félix (Hornos Ibéricos  Spain), Horner(Blue Circle  United Kingdom) and Akermann (Holderbank  Switzerland), thelatter acting as coordinator. Finally, it was agreed that the company would remaindormant but ready for operation (contested decision, recitals 25, paragraphs 22 and32, and 26, paragraph 1; documents 33.126/18858, 18860 and 18861). 3012. Since CBR, Dyckerhoff, Lafarge, Italcementi, Aker and EUROC have not adducedany evidence to show that at those meetings in Stockholm and Baden-Baden theyopenly distanced themselves from the plainly anti-competitive concurrence of willsexpressed there regarding the setting-up of the Joint Trading Company Intercimentor that they had informed the other participants that they intended to be presentat those meetings with different objects in mind, it must be held that those sixundertakings subscribed to the agreement referred to in Article 4(2) of thecontested decision, or at least gave that impression to the other participants (seethe case-law cited above at paragraph 1353). Aker and EUROC cannot rely onHolderbank's telex to Blue Circle on 12 June 1986 (document 33.126/18781) inorder to claim that they were not involved in the undertakings given during theStockholm meeting with regard to Interciment. The contents of that telex show atmost that Holderbank requested Blue Circle to send it its further comments on thesetting-up of the Joint Trading Company, in anticipation of the meeting of the ETFon 17 June 1986. 3013. The participation of the six undertakings in the agreement setting up Intercimentis, moreover, confirmed by the fact that they were sent the letter of 22 September1986 in which Holderbank requested payment of quotas of Interciment shares(contested decision, recital 26, paragraph 6; documents 33.126/19019 to 19022 and 19025). Holderbank was able to send such a request to those undertakings onlybecause they had agreed to contribute to the implementing of that agreement byoffering, on their own account or on behalf of their market, to take up shares inInterciment. The minutes of the meeting of Head Delegates and representatives ofthe ETF in Baden-Baden on 9 September 1986 (contested decision, recital 26,paragraph 2; document 33.126/18861) and Annex 2 to the agenda for the meetingof the ETF on 19 August 1986 (contested decision, recital 26, paragraph 2;document 33.126/18821) also show that 12.5% of Interciment's share capital hadbeen allotted to each of 'Belgium  more specifically to 'CBR/Cim. d'Obourg to 'Germany, to 'France  more specifically to 'Lafarge (France), to 'Italy more specifically to 'Sogec (Italy), a subsidiary partly owned by Italcementi and to 'Norcem/Cementa. 3014. The claim by CBR, Dyckerhoff, Lafarge, Aker and EUROC that ultimately theynever actually financed Interciment, or even subscribed for their quota of theshares in question is irrelevant. 3015. The Commission correctly observed in recital 54, paragraph 4, of the contesteddecision: 'The actual paying-up of the shares in Interciment SA is of little relevance inestablishing the participation of the undertakings in the agreement on the setting-up of the company. The important point is that the tool was already set up as aresult of an agreement and was ready for operation on behalf of the participantsin the agreement. 3016. Similarly, the fact, emphasised by Dyckerhoff, that it had not signed the deedsetting up Interciment and had never received its balance sheets cannot hide thevarious facts mentioned in paragraphs 3008 to 3013 above, which unambiguouslyshow that Dyckerhoff was a party to the agreement setting up Interciment. 3017. In conclusion, the Commission was fully entitled to find in Article 4(2) of thecontested decision that CBR, Dyckerhoff, Lafarge, Italcementi, Aker and EUROCparticipated in the agreement setting up Interciment as from 9 June 1986. 3018. It must be pointed out that the fact that, for the reasons set out in paragraph 402above, the extract from Blue Circle's reply to the SO reproduced in recital 26,paragraph 10, of the contested decision cannot be relied on against Aker andEUROC, has, in the light of the analysis in paragraphs 3008 to 3014 above, nobearing on the merits of the Commission's finding that they participated in theagreement setting up Interciment. 3019. Aker and EUROC also claim that in the contested decision (recitals 26, paragraph9, and 54, paragraph 6) the Commission seems to have withdrawn its allegation inthe SO that they held shares in Interciment. They state that the Commission now considers (contested decision, recital 54, paragraph 4) that 'the actual paying-upof the shares in Interciment SA is of little relevance in establishing the participationof the undertakings in the agreement on the setting-up of the company. Theycontend that the Commission has thus reformulated its objection concerningparticipation in the agreement on the setting-up of Interciment. 3020. The Court finds that in the Legal Assessment of the SO, concerning Interciment,the Commission did place particular emphasis on the actual payment for shares inthat company by the various undertakings which had received Holderbank's letterof 22 September 1986 [SO, paragraph 61(h)(i), p. 179], which it did not do in thecontested decision (recital 54, paragraph 4). Nevertheless, the three factors onwhich the Commission relied, in recital 54, paragraph 3, of the contested decision(see paragraph 2997 above) in finding that the applicants took part in theagreement setting up Interciment were explicitly referred to in The Facts of the SO(see Chapter 2, section 2, paragraph 18, pp. 43 and 44). Aker and EUROC werethus in a position to put forward their comments, during the administrativeprocedure, on the three factors relied upon in the contested decision in chargingundertakings with the infringement referred to in Article 4(2). They cannot,therefore, claim that their rights of defence were infringed during the administrativeprocedure, with regard to the finding of that infringement. 3021. Aker and EUROC's argument must therefore be rejected. 3. SFIC, BDZ and Oficemen 3022. SFIC maintains that the facts put forward in the contested decision do not establishthat it was involved in the agreement setting up Interciment. It claims that thereis no proof of any decision by an association of undertakings. Nor has theCommission demonstrated how any actions by persons carrying out duties withinInterciment could have had an anti-competitive object. 3023. BDZ, in addition to the line of argument presented in paragraphs 2661 to 2663above, denies any involvement in setting up Interciment. It claims that it was aninitiative of certain producers, in which it could not have participated, since it is anassociation. It never participated in Interciment or even expressed a wish to do so.Furthermore, the Commission found no documents in its files concerning thatcompany. 3024. Oficemen denies any involvement in Interciment. It did not take part in themeeting in Stockholm on 9 June 1986. The fact that several documents mention theallocation of a percentage of Interciment shares to the Spanish market does notsupport the conclusion that Oficemen took part in that meeting and subscribed tothe agreement setting-up Interciment. Oficemen never took part in the subsequentmeetings of Head Delegates at which the running of Interciment was discussed. It was not mentioned in any document concerning the setting-up and running ofInterciment. It was not represented on the executive committee of that companyand never paid for any shares, directly or indirectly. 3025. It must nevertheless be borne in mind that SFIC, BDZ and Oficemen wererepresented at the meeting in Stockholm on 9 June 1986 (see paragraphs 2623 to2625, 2664 to 2666 and 2708 to 2710 above), at which it was decided to set upInterciment (see above paragraph 3009). 3026. Those three associations were also represented at the meeting of Head Delegatesand members of the ETF in Baden-Baden on 9 September 1986 (see paragraphs2623 to 2625, 2667, 2711 and 2712 above), at which the setting-up of Interciment,its anti-competitive purpose, the details of its running and the structure of its shareownership were discussed and at which it was agreed to ensure that the companywould remain ready for operation (see paragraph 3011 above). 3027. In addition, it must be pointed out that the Commission has demonstrated theSFIC's own role in the infringement found in Article 4(2) of the contested decision.In particular, it noted in recital 29, paragraph 4, that SFIC had relayed to itsmarket the discussions held at European level, in particular, at the meetings of 9June and 9 September 1986 at which it had been represented by Mr Laplace andMr Kasriel, concerning imports from Greece (see paragraphs 2624 and 2625above). 3028. In those circumstances and in the absence of any evidence produced by those threeapplicants to show that at the meetings referred to in paragraphs 3025 and 3026above they had openly distanced themselves from the concurrence of wills relatingto the setting-up of the Joint Trading Company Interciment, it must be held thatthey adhered to that anti-competitive concurrence of wills or, at least, that theygave that impression to the other participants (see, to that effect, the case-law citedat paragraph 1353 above). 3029. The fact, relied on by the BDZ, that no document relating to Interciment wasfound in its files is irrelevant in that respect. The same holds for Oficemen'sassertions that it was not mentioned in any document concerning the setting-up andrunning of Interciment, that it was not represented on the executive committee ofthat company and that it never subscribed to its capital, directly or indirectly. 3030. In conclusion, the Commission was fully entitled to find in Article 4(2) of thecontested decision that SFIC, BDZ and Oficemen participated in the agreementsetting up Interciment as from 9 June 1986. 3031. Oficemen claims to have suffered discrimination in connection with the finding ofthe infringement relating to the setting-up of Interciment, inasmuch as the Belgianand United Kingdom associations were not charged with that infringement, even though the Belgian and United Kingdom Head Delegates took part in theStockholm and Baden-Baden meetings. 3032. However, the fact that associations in a situation comparable to that of Oficemenwere not found by the Commission in Article 4(2) of the contested decision to havecommitted an infringement cannot in any event make it possible to disregard theinfringement found to have been committed by Oficemen, where that infringementhas been correctly established (see to that effect Woodpulp II, cited above atparagraph 106, paragraph 146). For the reasons set out above, the Commission wasfully entitled to conclude in the contested decision that Oficemen had participatedin the agreement setting up Interciment. 4. Ciments Français 3033. Ciments Français claims never to have participated in the management, executivecommittee or capital of Interciment. Contrary to what the Commission states inrecital 26, paragraph 6, of the contested decision, there are no grounds forincluding it in the 'French shareholding covered by the share quota in Intercimentrequested from Lafarge by Holderbank. In any event, the Head Delegates presentat the meeting in Brussels on 6 November 1986 decided, as a result of various legalopinions, that no Community undertaking would subscribe to Interciment's capital. 3034. Ciments Français maintains that its chairman, Mr Laplace, took part in themeetings of Head Delegates described in recital 26 of the contested decision in hiscapacity as chairman of the SFIC and member of the CLC, purely in connectionwith actions taken to make the national and Community authorities aware of theproblem. 3035. However, the Court points out that Mr Laplace also represented Ciments Français,whose chairman he was at the time, at the meeting in Stockholm on 9 June 1986(see paragraphs 2629 and 2630 above). 3036. In the light of what has been stated in paragraph 3009 above, and since CimentsFrançais has not adduced any evidence to demonstrate that, at that meeting, MrLaplace openly distanced himself from the decision to set up Interciment or thathe informed the other participants that he intended to be present at the meetingwith different objects in mind (namely merely to prepare for the political actionscalled for by the appearance of the 'Greek problem), it must be held thatCiments Français manifested its support for the setting-up of the Joint TradingCompany Interciment or, at the very least, that it gave that impression to the otherparticipants (see, to that effect, the case-law cited in paragraph 1353 above). 3037. In this connection, it is immaterial that Ciments Français did not subsequentlyparticipate in the management, executive committee or shares of Interciment. 3038. In conclusion, the Commission was fully entitled to find in Article 4(2) of thecontested decision that Ciments Français participated in the agreement setting upInterciment as from 9 June 1986. 5. Heidelberger 3039. Heidelberger claims that it does not meet any of the criteria defined by theCommission in recital 54, paragraph 3, of the contested decision in order toallocate responsibility for the infringement constituted by the agreement setting upInterciment. 3040. The Court points out that Heidelberger did not take part in the meeting inStockholm on 9 June 1986 or the meeting of the Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986. Nor was it sentthe Holderbank letter of 22 September 1986 in which Holderbank asked a seriesof undertakings to pay for quotas of shares in Interciment. 3041. Admittedly, that letter, addressed to Mr Lose, of Dyckerhoff, concerning theGerman market (contested decision, recital 26, paragraph 6; document33.126/19020), did request payment of the 'German shareholding in Intercimentand requested the German producers to decide between them which of them wasto hold those shares. Nevertheless, those facts do not make it possible to concludethat Heidelberger had shown its support for the taking-up of shares in Intercimentwhich had been accepted by Dyckerhoff at the meeting in Stockholm on 9 June1986. Having regard to the smallness of the sums involved (CHF 6 250),Dyckerhoff was able to accept such a shareholding on behalf of the Germanmarket without first receiving the consent of the other undertakings on its market,even though it might have to bear the financial burden of taking up thatshareholding by itself if it did not subsequently manage to obtain theircontributions. 3042. The Commission claims that the preparation of means to implement the dissuasiveand persuasive measures had already been discussed at the meeting in Rome on28 May 1986, at which Heidelberger was present. 3043. Nevertheless, and without any need to rule on the relevance of that assertion, theCourt points out that in the contested decision the Commission makes absolutelyno reference to that meeting in the summary of facts relating to the agreement onsetting up Interciment (recital 26) or in the legal assessment of those facts, inparticular among the factors used in recital 54, paragraph 3, to attributeresponsibility for the infringement to the various undertakings and associationsreferred to in Article 4(2). 3044. The Commission then points to the fact that, in its letter of 22 September 1986 toDyckerhoff, Holderbank asked Dyckerhoff to send Mr Schuhmacher (ofHeidelberger) a copy of the minutes of the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986, in whichInterciment was discussed, and also the 'file consisting of the most importantdocuments relating to the setting-up of the company Interciment AG. 3045. None the less, against an undertaking which, like Heidelberger, has not taken partin either of the two meetings referred to in recital 54, paragraph 3, of the contesteddecision, those facts cannot constitute evidence of its support, even tacit, for thesetting-up of Interciment, a necessary precondition for attribution of responsibilityfor the infringement found in Article 4(2) of the contested decision. 3046. It follows from all the above that the Commission was not entitled to find thatHeidelberger participated in the agreement setting up Interciment. It follows thatArticle 4(2) of the contested decision must be annulled in so far as it finds thatHeidelberger participated in that agreement. 6. Unicem 3047. Unicem claims that it did not take part in any meeting relating to the setting-up oractivities of Interciment. In addition, Holderbank never asked it to pay for a quotaof Interciment's shares. The fact that such a payment was requested of Italcementiin respect of the Italian shareholding, even if it were established, does not make itpossible to implicate Unicem. 3048. The Court points out that Unicem was not present at the meeting in Stockholm on9 June 1986 or at the meeting of Head Delegates and representatives of the ETFin Baden-Baden on 9 September 1986. Nor was it sent the Holderbank letter of 22September 1986 in which Holderbank asked a number of undertakings to pay forquotas of Interciment's shares. 3049. Admittedly, that letter, which was addressed to Mr d'Agostino of Italcementi, so faras regards the Italian market (contested decision, recital 26, paragraph 6; document33.126/19019), asked for payment of the 'Italian shareholding in Interciment'scapital. For the reasons set out in paragraph 3041 above, such a fact does nothowever make it possible to conclude that Unicem had demonstrated its consentto the taking-up of a shareholding in Interciment which had been accepted byItalcementi at the meeting in Stockholm on 9 June 1986. 3050. The Commission states that, according to Annex 2 to the agenda of the meeting ofthe ETF on 19 August 1986 (contested decision, recital 26, paragraph 2; document33.126/18821), the Italian quota of shares in Interciment had been allotted toSogec, a joint subsidiary of Italcementi and Unicem. 3051. However, the fact that at the meeting in Stockholm on 9 June 1986 Italcementiproposed Sogec as an Italian shareholder in Interciment does not prove thatUnicem agreed to participate in such a shareholding and, therefore, in the setting-up of the Joint Trading Company Interciment. It must, moreover, be pointed outthat in February 1987 the Italian share quota in Interciment was taken up byItalcementi, not by Sogec (contested decision, recital 26, paragraph 8; document33.126/16220). 3052. The Commission also claims that Unicem was represented by the Italian HeadDelegate, namely Italcementi, at the meetings of 9 June and 9 September 1986,referred to in recital 54, paragraph 3, of the contested decision. 3053. However, it has already been stated that in its capacity as a direct member ofCembureau Unicem had its own Head Delegate (see paragraph 1409 above). Inthose circumstances, and in the absence of any evidence that Unicem hadinstructed Italcementi to represent it at the two meetings referred to in theprevious paragraph, the Commission was not entitled to deduce from the presenceof Italcementi at those meetings that Unicem was represented in them and,therefore, that it had participated in the concurrence of wills concerning the setting-up of Interciment and its anti-competitive purpose. 3054. Last, at the hearing in Case T-50/95 the Commission referred to the fact that, inits letter to Italcementi of 22 September 1986, Holderbank requested Italcementito send Unicem a copy of the minutes of the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986, which mentionthe Interciment situation. 3055. As has already been stated in paragraph 3045 above, such a fact does not howevershow that Unicem participated in the agreement concerning the setting-up ofInterciment. 3056. It is clear from all the foregoing that the Commission was not entitled to find thatUnicem participated in the agreement setting up Interciment. It follows that Article4(2) of the contested decision must be annulled in so far as it finds that Unicemparticipated in that agreement. 7. Asland 3057. Asland denies any participation in the setting-up of Interciment. It states that,contrary to what the Commission claims, it was not represented at the meeting inStockholm on 9 June 1986, at which the decision was taken to set up Interciment.Nor did the Commission adduce in the SO, at the hearing in March 1993 or in thecontested decision any evidence of Asland's presence at that meeting. In addition,Asland disputes the various conclusions drawn by the Commission in recital 25, paragraph 9, of the contested decision in order to establish its presence at thatmeeting. Furthermore, it points out that the Commission has never claimed that ittook part in the meeting in Baden-Baden on 9 September 1986, during whichInterciment's functions were confirmed. Finally, it is not alleged in the contesteddecision that Asland was sent the Holderbank letter of 22 September 1986requesting payment for a quota of Interciment shares. 3058. In its defence, the Commission relies on two documents, namely the minutes of themeeting of Asland's executive committee on 25 June 1986 (documents 33.322/1562and 1563) and the minutes of the meeting of the Spanish undertaking's board ofdirectors on 26 June 1986 (documents 33.322/1598 to 1603), which irrefutably showAsland's presence at the meeting in Stockholm on 9 June 1986. In its rejoinder, itstates that production of those two documents is intended merely to establishdefinitively for the Court a fact already adequately established in the contesteddecision. 3059. On that point, the Court points out first of all that in recital 25, paragraph 9, of thecontested decision the Commission relies on two points in order to establishAsland's presence at the meeting in Stockholm on 9 June 1986: the fact thatAsland's participation in that meeting was foreseen at the meeting in Rome on 28May 1986; the allotment at the meeting in Stockholm on 9 June 1986 of a Spanishshareholding in Interciment. 3060. So far as regards the first point, while it is true that according to the report of themeeting in Rome on 28 May 1986 the participants in that meeting, includingAsland, had agreed to meet again in Stockholm on 9 June 1986 (contested decision,recital 25, paragraph 1; document 33.126/18771), that does not prove that Aslandactually took part in the Stockholm meeting. 3061. As regards the second point, it shows at most that a Spanish participant waspresent at the Stockholm meeting. It does not prove that the representative was amember of Asland. The fact that Holderbank addressed its request for payment ofthe Spanish shareholding in Interciment to Mr Félix of Hornos Ibéricos (contesteddecision, recital 26, paragraph 6; document 33.126/19023) casts further doubt onAsland's presence at the Stockholm meeting. 3062. In those circumstances, and having regard to the fact that during the administrativeprocedure Asland persistently maintained that the only evidence adduced againstit in the SO in support of the various charges brought against it was itsparticipation in the meeting in Rome on 28 May 1986 (see Asland's reply to theSO, pp. 41 and 42, and the Report for the Hearing on 11 March 1993, pp. 38 and39), the Commission cannot here seek to establish that Asland was present at themeeting in Stockholm on 9 June 1986 on the basis of the two sets of minutes ofthat undertaking referred to in paragraph 3058 above, documents which were notreferred to in the SO, were not in the Box (see paragraph 95 above) and on which the Commission never formally requested Asland to submit its observations duringthe administrative procedure. 3063. It is thus clear from the foregoing that the Commission has not established thatAsland was present at the meeting in Stockholm on 9 June 1986. 3064. In addition, Asland did not take part in the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986. Nor was it sentthe letter of 22 September 1986 in which Holderbank requested a number ofundertakings to pay for share quotas in Interciment. Admittedly, that letter, whichwas sent to Mr Félix, of Hornos Ibéricos, with regard to the Spanish market (seeabove paragraph 3061), sought payment for the 'Spanish shareholding inInterciment. For the reasons set out in paragraph 3041 above, that fact does nothowever make it possible to conclude that Asland demonstrated its consent to thetaking-up of a shareholding in Interciment which had been accepted by the Spanishrepresentative at the meeting in Stockholm on 9 June 1986. 3065. In conclusion, the Commission was not entitled to find that Asland participated inthe agreement setting up Interciment. It follows that Article 4(2) of the contesteddecision must be annulled in so far as it finds that Asland participated in thatagreement. 8. Uniland 3066. Uniland maintains that the Commission has not cited the evidence on which itrelies in order to establish its participation in the agreement concerning the setting-up of Interciment. 3067. It claims not to have been present at the meeting in Stockholm on 9 June 1986.The presence of Mr Rumeu at the meeting in Baden-Baden on 9 September 1986cannot in itself constitute evidence of its participation in the setting-up ofInterciment. With regard to the meeting in Brussels on 6 November 1986, MrRumeu did not take part in the discussions and agreements concerning Interciment.In any event, the participants at that meeting merely discussed the, purely formal,possible change to Interciment's objects, a change which was never made in theend. The complete lack of any connection between Interciment and Uniland isfurther borne out by the fact that the documents concerning Interciment do notrefer either to Uniland or Mr Rumeu. The Commission cannot rely on documentsdrafted by third parties stating that documents were to be handed to Mr Rumeu(contested decision, recital 25, paragraph 33) in order to establish a connectionbetween Interciment and Uniland. 3068. Last, Uniland claims that it never subscribed, directly or indirectly, to ashareholding in Interciment and that it was never asked to make such a subscription. It adds that the Commission has provided no evidence to that effect.Such a subscription cannot be inferred from the letter sent by Holderbank on 22September 1986 to Hornos Ibéricos with a view to obtaining payment of the'Spanish shareholding in Interciment. Uniland also states that it was neverrepresented in Interciment's administrative bodies. 3069. It must however be pointed out that, in the person of Mr Rumeu, Uniland tookpart in the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 (see paragraph 2695 above). 3070. In the light of what has been set out in paragraph 3011, and without the need toconsider whether Uniland's argument concerning its participation in the meetingin Brussels on 6 November 1986 is well founded, that not being a meeting referredto in recital 54, paragraph 3, of the contested decision, the Court finds, in theabsence of any evidence produced by Uniland to show that at the meeting referredto in the previous paragraph it had openly distanced itself from the agreementsetting up Interciment, that Uniland did subscribe to that initiative or at least gavethat impression to the other participants (see, to that effect, the case-law citedabove at paragraph 1353). 3071. It is, in that regard, immaterial that there is no mention of Uniland or Mr Rumeuin any document concerning Interciment or that Uniland never made a financialcontribution to Interciment or that such a subscription was never requested of it,or even that Uniland was not represented in Interciment's administrative body. 3072. In conclusion, the Commission was entitled to find in Article 4(2) of the contesteddecision that Uniland participated in the agreement setting up Interciment. 3073. However, the contested decision does not contain any evidence allowing theconclusion that Uniland demonstrated its support for that agreement before takingpart in the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986. Even on the assumption that, as the Commissionmaintains in its pleadings, Uniland was represented by the Spanish participant atthe meeting in Stockholm on 9 June 1986, it is nonetheless the case that the firstdefinite manifestation of Uniland's own participation in the agreement setting upInterciment was on 9 September 1986, the date of its participation in the meetingof Head Delegates and members of the ETF in Baden-Baden. Article 4(2) musttherefore be annulled in so far as it finds that Uniland participated in thatagreement before that date. 3074. Uniland complains that the Commission has not charged the undertaking to whichMr Félix belonged with participating in the agreement setting up Interciment, eventhough Mr Félix was a part of Interciment's executive committee. 3075. However, that fact cannot in any event make it possible to disregard theinfringement found to have been committed by Uniland, where that infringementhas been properly established (see, to that effect, Woodpulp II, cited above atparagraph 106, paragraph 146). The grounds set out above show that in thecontested decision the Commission was fully entitled to conclude that Unilandparticipated in the agreement setting up Interciment. 9. Cementir 3076. Cementir claims to have been wholly uninvolved in the setting-up and running ofInterciment. It does not meet any of the conditions laid down by the Commissionin recital 54, paragraph 3, of the contested decision. The reference to the Italianindustry in the letter of 22 September 1986, in which Holderbank requestedItalcementi to pay for a quota of shares in Interciment, did not concern Cementir,since only Italcementi and Unicem were involved in the ETF. In any event, thatItalian shareholding was wholly paid by Italcementi, which has confirmed that it hadnot transferred any part to other Italian producers (see Italcementi's reply of 21March 1990 to a request by the Commission for information). 3077. In that connection, the Court points out that Cementir did not take part in themeeting in Stockholm on 9 June 1986 or in the meeting in Baden-Baden on 9September 1986. Nor was it sent the letter of 22 September 1986 in whichHolderbank asked a number of undertakings to pay for a quota of shares inInterciment. Admittedly, that letter, which was addressed to Mr d'Agostino ofItalcementi, regarding the Italian market (see above paragraphs 3013 and 3049),requested payment of the Italian shareholding in Interciment. For the reasons setout in paragraph 3041 above, that reference to the 'Italian shareholding does nothowever make it possible to conclude that Cementir agreed to the taking-up ofsuch a shareholding and thus to the agreements setting-up Interciment.Furthermore, the Italian shareholding in Interciment had been allotted to Sogec(Annex 2 to the agenda of the meeting of the ETF on 19 August 1986; contesteddecision, recital 26, paragraph 2; document 33.126/18821), a company to whichCementir was in no way connected, and it was in the end taken up by Italcementialone (see above paragraph 3051). 3078. As regards the presence of an Italian Head Delegate at the meetings in Stockholmand Baden-Baden and the fact that Cementir was a direct member of Cembureau,those matters cannot, for the reasons set out above at paragraphs 2774 and 2776,lead to a finding that Cementir participated in the agreement setting upInterciment, contrary to what the Commission submits in its defence. 3079. In conclusion, the Commission was wrong to find that Cementir took part in theagreement concerning the setting-up of Interciment. 3080. It follows that Article 4(2) of the contested decision must be annulled in so far asit finds that Cementir took part in that agreement. D  The duration of the infringement found in Article 4(2) of the contesteddecision 3081. In Article 4(2) of the contested decision, the Commission finds that theinfringement concerning the agreement setting up Interciment lasted from 9 June1986 to 26 March 1993. 9 June 1986 is the date of the Stockholm meeting, at whichit was decided to set up the Joint Trading Company Interciment (contesteddecision, recital 26, paragraph 1). 26 March 1993 is the date of the Intercimentgeneral assembly at which it was decided to dissolve the company (see the recordof that general assembly, sent by Holderbank's lawyer to the Commission on 3 May1993; contested decision, recital 26, paragraph 16). 3082. It has already been stated that, by taking 9 June 1986 as the starting date of thatinfringement as regards Uniland, the Commission wrongly assessed the start of itsparticipation in the infringement. That start must therefore be fixed at 9 September1986 (see paragraph 3073 above). 3083. The Court must now consider the applicants' arguments seeking to challenge theCommission's decision to fix 26 March 1993 as the date on which the infringementended. 3084. First, CBR, Ciments Français, Lafarge, Uniland, Oficemen, Italcementi,Holderbank and Blue Circle argue that the Commission incorrectly extended theduration of the infringement concerning the setting-up of Interciment until 26March 1993, when that company was at most an 'empty shell. It had been decidedon 9 September 1986 that Interciment would remain dormant, a decision confirmedon 6 November 1986. Uniland and Oficemen maintain that, in any event, theagreement setting up Interciment could not have lasted beyond the end of May1987, the time when the agreement setting-up the ETF fell into desuetude. 3085. Lafarge claims that it was by pure oversight that the undertakings concerned, whichhad lost all interest in Interciment, did not decide formally to dissolve it until 26March 1993. Holderbank explains that on reading the SO it had not realised theimportance which the Commission attached to Interciment. It was only at thehearing in March 1993 that it became aware of the conclusions which theCommission intended to draw from the continued existence of Interciment, whichexplains its decision to carry out the formal dissolution of that companyimmediately after the hearing. 3086. Dyckerhoff, Italcementi and Holderbank state that the decision to wind upInterciment in March 1993 was taken by Holderbank alone, which proves that the latter was the sole shareholder in Interciment. Italcementi stresses the fact that ittransferred its Interciment shares back to Holderbank on 7 November 1988. 3087. On this point, it must be borne in mind that, while it was agreed on severaloccasions that Interciment was to remain dormant (see paragraph 2993 above), itwas considered important at the meeting in Baden-Baden on 9 September 1986 toensure that that company was ready for operation in order to implement thedissuasive and persuasive measures recommended by the Zurich/Céligny documentagainst countries threatening the stability of the member countries' markets(contested decision, recitals 25, paragraph 32, and 26, paragraph 14; document33.126/18861). Subsequently, Interciment was further discussed at the meetings ofthe ETF on 9 January 1987 (contested decision, recital 25, paragraph 44;documents 33.126/18921 and 18922) and 11 February 1987 (contested decision,recitals 25, paragraphs 45, and 26, paragraph 10; documents 33.126/18937 and18938). With a view to that last meeting, Holderbank sent the members of the ETFInterciment's balance sheet as at 31 December 1986 (contested decision, recital 26,paragraph 10; documents 33.126/18946 to 18949). 3088. In addition, it is clear from documents 33.126/10960 to 10962, cited in recital 26,paragraph 7, of the contested decision, and from the extract from Blue Circle'sreply to the SO reproduced in recital 26, paragraph 9, that in September orOctober 1986 Blue Circle made a payment through its Swiss subsidiary BCO AGto Holderbank in connection with Interciment. 3089. Last, Italcementi subscribed to Interciment's capital on 11 February 1987 beforereselling its shares to Holderbank on 7 November 1988 (contested decision, recital26, paragraph 8; documents 33.126/16218 and 16220). 3090. Those various facts establish that the concurrence of wills which led to the setting-up of Interciment continued until 7 November 1988. On the other hand, it is notpossible to consider that such a concurrence of wills continued after that date. 3091. In recitals 26, paragraph 9, and 54, paragraph 6, of the contested decision, theCommission states that Holderbank, which claimed to have bought back all theshares in Interciment, had never specified from whom it repurchased those sharesnor produced any document whatsoever to show that it became the soleshareholder in Interciment. 3092. However, the Commission has not been able to put forward any evidence to showthat, after 7 November 1988, any undertakings other than Holderbank held sharesin Interciment. On the contrary, the record of the general assembly of Intercimenton 26 March 1993 (contested decision, recital 26, paragraph 16) shows thatInterciment was dissolved by Mr Akermann of Holderbank alone. 3093. In recital 26, paragraph 15, of the contested decision, the Commission relies againon the extract from Blue Circle's reply to the SO stating that the Britishundertaking claimed that 'Interciment was still ready to operate, but that it couldserve any objective. 3094. However, the extract in question shows at most that Interciment still existed at thattime and that it could be made operational at any moment. It does not show thatthe concurrence of wills expressed in the middle of 1986 entrusting that companywith the implementation of the dissuasive and persuasive measures recommendedby the Zurich/Céligny document against countries threatening the stability of themember countries' markets was still in existence during the administrativeprocedure. 3095. Finally, in recital 54, paragraph 4, of the contested decision, the Commission putsforward the fact that the persuasive measures consisting of the absorption of Greekcement and clinker were carried out until 1991. 3096. It does not however produce any evidence to show that such persuasive measureswere carried out by Interciment. 3097. In conclusion, Article 4(2) of the contested decision must be annulled in so far asit finds that the infringement relating to the agreement setting up Intercimentcontinued after 7 November 1988. That conclusion applies not only to theapplicants referred to in paragraphs 3084 to 3086 above, but also to SFIC, BDZ,Aker and EUROC, which have put forward arguments seeking, in substance,annulment of Article 4(2). 3098. With regard to Aker and EUROC, it must be stated that, having regard to theanalysis in paragraphs 3087 to 3097 above, it is immaterial that the extract fromBlue Circle's reply to the SO, mentioned at paragraph 3093 above, ought, for thereasons set out in paragraph 402 above, to have been considered inadmissible asevidence against them. 3099. Second, Lafarge claims that, by not taking any action on Holderbank's letter of 22September 1986 requesting it to subscribe to Interciment's capital, it made it clearthat it did not intend to take part in the setting-up of Interciment from September1986. That decision was taken because Interciment did not satisfy the criteria oflawfulness which the ETF had set itself. 3100. It must, however, be stated that Lafarge adduces no evidence that, at the time, itopenly informed the other parties concerned that such a decision was to beregarded as an act whereby it was disengaging itself from the agreement setting upInterciment or, at least, as a sign of distancing it from the unlawful purposeattributed to that company when it was set up. On the contrary, it is apparent thaton 10 February 1987 Holderbank sent Lafarge Interciment's balance sheet as at 31 December 1986 with a view to the meeting of the ETF on the following day(contested decision, recital 26, paragraph 10; documents 33.126/18936 to 18938),a fact which contradicts Lafarge's argument that it had disassociated itself from theagreement setting up Interciment in September 1986. 3101. That argument cannot therefore, with regard to Lafarge, lead to the invalidity ofthe above analysis in paragraphs 3087 to 3097 concerning the duration of theinfringement referred to in Article 4(2) of the contested decision. 3102. Third, Uniland claims that it cannot be held liable for maintaining Intercimentwhen it has never participated in that company's share capital or managing bodies. 3103. However, that undertaking does not put forward any evidence to show that, afterdemonstrating its support, at the meeting in Baden-Baden on 9 September 1986,for the setting-up of Interciment and the anti-competitive object conferred on it,it thereafter openly distanced itself from the unlawful concurrence of wills in whichit had taken part at that meeting. 3104. Uniland's argument cannot therefore invalidate the above analysis in paragraphs3087 to 3097 concerning the duration of the infringement referred to in Article 4(2)of the contested decision. E  Access to the file 3105. Following the measures of organisation of 2 October 1996 and 18 and 19 June 1997concerning access to the file, Heidelberger, Asland and Cementir produceddocuments which, according to them, could have been useful to them during theadministrative procedure in order to defend themselves against the claim allegingthat they participated in the agreement setting up Interciment. 3106. There is however no longer any need to assess whether those comments are wellfounded, since it has already been held that Article 4(2) of the contested decisionmust be annulled in so far as it finds that Heidelberger, Asland and Cementirparticipated in the infringement concerning the agreement setting up Interciment(see paragraphs 3046, 3065 and 3080 above). 3107. Dyckerhoff, SFIC, Lafarge, Holderbank, Aker and EUROC also put forward aseries of observations based on the documents which they were able to consult asa result of the measures of organisation of procedure referred to in paragraph 3105above. They seek to show that, by granting them only limited access to the SO andto its investigation file during the administrative procedure, the Commissioninfringed their rights of defence when making the finding of an infringement bythem in Article 4(2) of the contested decision, in so far as they had no access toevidence which might have exculpated them. 3108. First, Dyckerhoff, SFIC, Lafarge, Aker and EUROC rely on various documentswhich, in their view, underline the concern of the parties involved in the setting-upof Interciment to ensure that their initiative was lawful. 3109. In its observations of 5 January 1998, Dyckerhoff adduces documents to show thatit had been agreed from the start to make the setting-up of Interciment conditionalon a legal opinion being obtained (documents 33.126/7639 to 7641). 3110. Nevertheless, the observations which Dyckerhoff might have been able to putforward during the administrative procedure on the basis of those documents couldnot have precluded the findings made on the basis of the bundle of documentsreferred to by the Commission in recital 26 of the contested decision, namely that,without waiting for the contemplated legal opinion, it was decided to set upInterciment and to assign it an objective manifestly contrary to Article 85(1) of theTreaty. 3111. SFIC, in its observations of 7 January 1998, Lafarge, in its observations of 28January 1998, and Aker and EUROC, in their observations of 29 December 1997,also rely on document 33.126/7639, mentioned in paragraph 3109 above. They claimthat that document, a letter sent by CBR's Mr Van Hove on 6 November 1986 toHolderbank's Mr Akermann, is proof that the Community authorities had beeninformed of the setting-up of Interciment and that notification of that measure tothe Commission had been contemplated. 3112. However, even if observations on that point could have been presented during theadministrative procedure, they could not have refuted the argument raised by theCommission against the parties concerned in the setting-up of Interciment, namely,that it had never been notified to it (contested decision, recitals 26, paragraph 13,and 65, paragraph 5, fifth indent). 3113. Lafarge also relies on document 33.126/19009, a Blue Circle memorandumconcerning the discussion on 6 November 1986 between Mr Sutherland, a memberof the Commission, and some representatives of the European cement industry, inarguing that the setting-up of Interciment had been brought to the Commission'sknowledge and discussed with it. 3114. However, that document shows at most that 'Mr Laplace pointed out thedifficulties for other EEC cement companies retaliating in the Greek market. Itdoes not show that the representatives of the European cement industry informedthe Commission of the setting-up of the Joint Trading Company Interciment witha view to implementing the dissuasive and persuasive measures against theproducers  Greek producers in this case  threatening the stability of the otherEuropean markets. In any event, any observations which Lafarge might have putforward during the administrative procedure on the basis of those documents couldnot have rebutted the Commission's objection against the parties involved in the setting-up of Interciment, namely, that the setting-up had never been notified to theCommission. 3115. Second, Dyckerhoff and Holderbank maintain that if various documents in theCommission's file had been made available to them during the administrativeprocedure, they could have claimed with advantage that Interciment had remaineda dormant company. 3116. In its observations of 5 January 1998, Dyckerhoff produces several documents toprove that Interciment never carried on any business whatsoever (documents33.126/16509, 16515 and 16516). 3117. In its observations of 8 December 1997, Holderbank relies on the following extractfrom information supplied by Italcementi to the Commission on 21 March 1990 inconnection with the investigation into this case (documents 33.126/15978 to 15985,in particular 15984): 'Until our shares were bought back [by Holderbank],Interciment remained dormant. It claims that that extract would have provided itwith support for its argument that Interciment had always been a dormantcompany, maintained in its books as a purely formal company, and did not trade. 3118. With regard to Dyckerhoff, it must first be observed that document 33.126/16509corresponds to document 33.126/18857, and that documents 33.126/16515 and16516 correspond to documents 33.126/18821 and 18822. Documents 33.126/18857,18821 and 18822 were in the Box (see paragraph 95 above). In those circumstances,Dyckerhoff cannot plead infringement of its rights of defence during theadministrative procedure. 3119. In any event, any comments which Dyckerhoff and Holderbank might have beenable to make during the administrative procedure, on the basis of the documentsmentioned in paragraphs 3116 and 3117 above, could only have confirmed whathad already been duly noted by the Commission in the contested decision. In recital26, paragraph 14, the Commission finds that it was decided on several occasionsthat Interciment was to remain dormant. In recital 54, paragraph 2, it acknowledgesthat that company 'did not apparently become operational. 3120. Those observations could not, however, have shed a different light on the extractfrom the minutes of the meeting of Head Delegates and representatives of the ETFon 9 September 1986, reproduced in recitals 26, paragraph 15, and 54, paragraph2, of the contested decision, according to which it was agreed to ensure thatInterciment remained ready for operation in order to implement the dissuasive andpersuasive measures (document 33.126/18861). In addition, they could not haveshed a different light on the documents referred to in recital 26, paragraph 1, ofthe contested decision, on the basis of which the Commission correctly found inrecital 54, paragraphs 1 and 2, that the object of the agreement setting upInterciment was anti-competitive, a finding which was sufficient for the conclusion that the agreement was contrary to Article 85(1) of the Treaty (see the case-lawcited at paragraph 837 above). 3121. Third, in its observations of 8 December 1997, Holderbank identifies a Blue Circleinternal memorandum of 20 October 1987 (document 33.126/10959), which states: 'A sum of money had been advanced to Holderbank with the intention that thisshould be a contribution towards share capital, but subsequently a decision wasmade and communicated to Holderbank that the Group did not wish to participatein the company's share capital. This latter decision was not communicated,however, to those responsible for maintaining the books of BCO AG and hence anerror was made in recording the nature of this cash outflow. This error will becorrected in 1987. 3122. Holderbank considers that, if it could have had that document available to it inorder to prepare its defence to the SO, it would have supported its argumentregarding Blue Circle's decision not to take part in Interciment. 3123. Holderbank also relies on the following extract from the information supplied byItalcementi on 21 March 1990 following a request for information by theCommission (documents 33.126/15978 to 15985, in particular 15984, mentionedabove at paragraph 3117): 'These were bearer shares. According to what Holderbank told us orally, until thelatter repurchased our 12.5% holding in the shares, Holderbank and our companywere the only members. 3124. It claims that that extract would have enabled it to support its argument that, otherthan itself, Italcementi had been the only undertaking to hold shares in Interciment,before reselling its shares to Holderbank on 7 November 1988. 3125. Nevertheless, the Court points out that the Blue Circle internal memorandum of20 October 1987 (document 33.126/10959) had been classified 'A: Europeanproducers for the purposes of consulting the file during the administrativeprocedure and it was also in the Box (see paragraph 95 above). Holderbank couldtherefore have used that document in order to support its reply to the SO. In thosecircumstances, it cannot now rely on that document in order to demonstrate theexistence of any infringement of its rights of defence during the administrativeprocedure. 3126. In any event, the evidence which it finds in that internal memorandum and in theextract of information supplied by Italcementi on 21 March 1990 were duly notedby the Commission in the contested decision. 3127. Thus, in the summary of facts relating to Interciment, the Commission (contesteddecision, recital 26, paragraph 7) observes first of all: 'Blue Circle paid the amount involved in its quota through the intermediary of itsSwiss subsidiary BCO AG between the months of September and October, as maybe seen from a statement of accounts of 7 November 1986 (documents33.126/10960 to 10962), but it subsequently got BCO AG to amend the object ofthe payment relating to the shareholding in Interciment; it asked that the paymentshould be identified as being a contribution towards market research expenses(document 33.126/10958). 3128. It then reproduces (recital 26, paragraph 9) the extract of Blue Circle's reply to theSO (point 4.159) in which Blue Circle stated that, 'through the payment carriedout, it had reimbursed Holderbank its one-eighth share of the expenses incurredby Holderbank in setting up Interciment SA. 3129. In addition, the Commission finds (recital 26, paragraph 8; documents 33.126/16218and 16220) that Italcementi subscribed to the share capital on 11 February 1987and resold its shares to Holderbank on 7 November 1988. 3130. Last, reproducing Holderbank's own statements supplied following a request forinformation (document 33.126/18329), it points out (contested decision, recital 26,paragraph 9): 'Apart from Holderbank, one other member [Italcementi] of the European TaskForce subscribed and paid up its shares. (Another member [Blue Circle] paid therelevant amount, but never became an actual shareholder. The member in questionpreferred to request the postponement sine die of the transmission of the sharesto the holders and subsequently never requested any such transmission, apparentlythrough lack of interest. It is for this reason, and in view of the relatively smallamounts involved, that no refund has so far taken place.) No document was drawnup on this subject; proof of this may be deduced from the wording of the documentcommunicated in reply to question 7/e (abovementioned letters dated 22September 1986, through which Holderbank requested payment of share quotas).Furthermore, Holderbank repurchased all the shares some time ago and is thus theonly shareholder in Interciment SA, a company which has not so far had anyactivity. 3131. Any observations which Holderbank might have been able to put forward duringthe administrative procedure in order to claim that, apart from Italcementi'stemporary shareholding in Interciment's capital, no undertaking other than itselfsubscribed to shares in the Joint Trading Company, could thus only have confirmedevidence duly taken into account by the Commission in the contested decision. Bycontrast, they could not have shed a different light on the bundle of documentsreferred to in recital 26, in particular paragraphs 1, 2 and 6, of the contested decision, on the basis of which the Commission correctly found, in recital 54, inparticular paragraphs 1, 2 and 4, that there was a concurrence of wills as from 9June 1986 with regard to the setting-up of the Joint Trading Company Intercimentfor the purposes of implementing dissuasive and persuasive measures, whichsufficed for a finding that there was an infringement of Article 85(1) of the Treaty. 3132. In conclusion, the observations by Dyckerhoff, SFIC, Lafarge, Holderbank, Akerand EUROC would not have had even a small chance of altering the outcome ofthe administrative procedure. Those applicants have therefore not proved thatthere was any infringement of their rights of defence in that regard during theadministrative procedure.                                                                     Measures to defend the Italian market (contested decision, Article 4(3)) 3133. In Article 4(3) of the contested decision, the Commission finds two infringementsconnected with measures to defend the Italian market against imports of cementfrom Greece:  concerted practices designed to withdraw Calcestruzzi as a customer fromthe Greek producers, and from Titan in particular (Article 4(3)(a));  an agreement relating to the contract and agreements signed on 3 and 15April 1987 having as their aim the prevention of imports of Greek cementby Calcestruzzi (Article 4(3)(b)). 3134. The Commission alleges that the first infringement was committed by the threeItalian cement producers, Italcementi, Unicem and Cementir, and also the 'otherparticipants in the Cembureau Task Force (contested decision, recital 55,paragraph 1). The second infringement is alleged against the three Italianproducers alone. A  Concerted practices designed to withdraw Calcestruzzi from the Greekproducers, and from Titan in particular (contested decision, Article 4(3)(a)). 3135. According to Article 4(3)(a) of the contested decision, Cembureau, Holderbank,Blue Circle, Oficemen, Asland, Uniland, Hispacement, SFIC, Lafarge, Cimentsfrançais, BDZ, Dyckerhoff, Heidelberger, CBR, Aker, EUROC, Aalborg, IrishCement, Italcementi, Unicem and Cementir 'infringed the provisions of Article85(1) of the EC Treaty from 17 June 1986 to 15 March 1987 by participating inconcerted practices designed to withdraw Calcestruzzi as a customer from theGreek producers, and from Titan in particular. 3136. With the exception of Hispacement, which has not brought an action for annulmentof the contested decision, Cembureau and the SFIC, whose arguments do notcontain any formal challenge to the existence of the infringement found in Article4(3)(a), all the undertakings and associations of undertakings referred to in thatprovision seek its annulment. Some of the applicants deny the existence of theconcerted practices in question. The great majority of them deny all involvementin such practices. Some of the arguments relate to the duration of the infringementfound. The applicants concerned will be identified when those various argumentsare considered. 3137. In addition, CBR, Dyckerhoff, Ciments Français, Asland, Uniland, Oficemen,Holderbank, Aker and EUROC allege that the Commission, in finding theinfringement referred to in Article 4(3)(a) of the contested decision, infringed theirrights of defence by not making available to them during the administrativeprocedure the whole of the SO and the investigation file, thus depriving them ofallegedly exculpatory evidence. 1. Existence of concerted practices 3138. In its exposition of the facts concerning the measures to defend the Italian market(contested decision, recital 27, paragraph 2), the Commission states: 'On 30 April 1986, the Greek producer Titan ... and Calcestruzzi ..., the largestItalian ready-mix concrete producer, signed a five-year contract under which Titanundertook to sell and Calcestruzzi to buy up to a maximum of 440 000 tonnes ofcement a year, with the quantities actually deliverable each year being specified insubsequent agreements (documents 33.126/16361 to 16368 and 19210 to 19217). 3139. The Commission adds (recital 27, paragraph 3, first paragraph) that the problemof imports of Greek cement into Italy by Calcestruzzi was then brought before theETF and discussed at several of its meetings from 17 June 1986 onwards, and atthe meetings of Head Delegates on 9 September and 6 November 1986. Aninternal Blue Circle memorandum of 4 September 1986 (documents 33.126/11026and 11027) shows that Blue Circle raised the problem of exports into Italy withTitan (paragraph 3, second subparagraph). 3140. Referring to a letter sent by Titan to its lawyers in London on 2 September 1988at a time when the non-performance of the Titan-Calcestruzzi contract was beingreferred to arbitration, the Commission states (paragraph 4): 'At the same time as the problem was brought to the ETF's attention, pressurewas exerted on Calcestruzzi not to honour the contract with Titan. As may be seenfrom [the letter in question], Calcestruzzi was unwilling to perform the contractbecause of talks with certain Italian cement producers. 3141. The Commission then refers (paragraph 5) to extracts from the records of themeeting of the ETF on 11 February 1987 and of the meeting of the subgroup'Defensive Measures on 17 March 1987 (not 15 March 1987, as statederroneously in the contested decision), which mention the report given by theItalian representative on the negotiations between the Italian cement producers, onthe one hand, and Calcestruzzi and its parent company, Ferruzzi, on the otherhand. 3142. On the basis of those various facts, the Commission considers (recital 55, paragraph1): 'The pressure exerted on Calcestruzzi and the non-performance by Calcestruzzi ofthe contract for the purchase of Titan cement ... are the result of concertedpractices between the Italian producers Italcementi, Unicem and Cementir andbetween them and the other participants in the Cembureau Task Force referredto in paragraph 9 of recital 53, the aim being to take away from the Greekproducers a customer who was important to their penetration of the Italianmarket. 3143. In substance, the applicants put forward seven arguments challenging the existenceof the concerted practices found in Article 4(3)(a) of the contested decision. 3144. First, several of them maintain that the Commission has not established that theproblem of imports by the Ferruzzi/Calcestruzzi Group of cement from Greece intoItaly had given rise to unlawful collusion between cement producers at Europeanlevel. 3145. Unicem challenges the link established by the Commission between the allegedpressure on Calcestruzzi and the ETF. It considers that a link cannot beestablished on the basis of the reference in the Zurich/Céligny document to thedesired cooperation between Western European cement producers. It claims tohave resolved the problem of supplying Calcestruzzi quite separately from andquite independently of the other European cement producers. Had the positionbeen otherwise, it would not have shown any reluctance to approach those otherproducers in order to obtain their support for its actions vis-à-vis Calcestruzzi andTitan. Last, the documents relating to the meetings of the ETF and of the HeadDelegates did not mention any specific action in relation to the Calcestruzzi-Titancontract. None of those documents mentions Titan. As regards the Blue Circlememorandum of 4 September 1986 cited in recital 27, paragraph 3, of thecontested decision, its author might, in Unicem's opinion, very well have been ableto obtain the information contained in it directly from Titan or from third parties. That note does not therefore show that there was any collusion at the ETF levelconcerning the Calcestruzzi-Titan contract. 3146. Uniland claims that in order to establish the alleged concerted practices theCommission relies on a vague allusion to alleged dissuasive measures in theZurich/Céligny document (recital 27, paragraph 1). This applicant denies that the'Calcestruzzi problem was discussed at the meetings of the Head Delegates andof the ETF. It claims that the Commission cannot rely on statements made byItalian cement producers, since those statements are at most unilateral assertionsin which the other participants had no interest. Finally, the Commission has notestablished the existence of the various constituent elements of a concerted practicecontrary to Article 85(1) of the Treaty. It has not shown that there was an actualcontract between the parties, since the only evidence put forward is a series ofmeetings at which some of the participants unilaterally expressed their concerns butat which there was no question at any time of an exchange of information or anydiscussion. Nor has it proved that the alleged collusion had led the parties to actin an anti-competitive manner on the market or to alter their behaviour on themarket. 3147. Oficemen claims that the Commission has not established that the receipt of theinformation disclosed at ETF level was likely to influence its behaviour with regardto competition, or that of its members or that of the Italian cement producers. 3148. Italcementi states that the Commission puts forward no evidence of the existenceof concerted practices. It maintains that, on the contrary, the exchange ofinformation between undertakings (which took part within the framework of theETF in the concerted lobbying activity and pursued perfectly lawful objectives)concerning the forces of competition in play on one of the markets most exposedto the pressure of the Greek producers was engendered by an attitude in keepingwith the requirements of Article 85(1) of the Treaty. It was, therefore, perfectlylawful for negotiations between the Italian cement producers and Calcestruzzi tohave been discussed at the meetings of the ETF, negotiations which were,moreover, public knowledge. In addition, the discussions held within theframework of the ETF concerning Calcestruzzi did not result in pressure beingbrought to bear on Calcestruzzi and no action was taken following them. Furthermore, those discussions were random and unfocussed. Italcementi stressesthat there was no connection between the contract for the delivery of cementconcluded between the Italian cement producers and Calcestruzzi, on the one hand,and the dissuasive measures contemplated within the framework of ETF, on theother hand. It points out that the Commission has not stated what sort of pressurewas brought to bear on Calcestruzzi by the other members of the ETF, which didnot export into Italy and had no interest in doing so. Nor did the Commission takeinto account the fact that Italian cement producers alone took part in the deliverycontracts concluded with Calcestruzzi. 3149. Holderbank denies that there was ever any fundamental agreement whatsoeverwithin the ETF with regard to measures to defend the Italian market. 3150. On that point, the Court points out that the concept of a concerted practice refersto a form of coordination between undertakings which, without having been takento the stage where an agreement properly so-called has been concluded, knowinglysubstitutes practical cooperation between them for the risks of competition. Thecriteria of coordination and cooperation used to define that term must beunderstood in the light of the concept inherent in the provisions of the Treatyrelating to competition, according to which each economic operator must determineindependently the policy which he intends to adopt on the common market. Thisrequirement of independence strictly precludes any direct or indirect contactbetween traders, the object or effect of which is to create conditions of competitionwhich do not correspond to the normal conditions of the market in question. Asis clear from the very terms of Article 85(1) of the Treaty, a concerted practiceimplies, besides undertakings' concerting together, conduct on the market pursuantto those collusive practices, and a relationship of cause and effect between the two(see, most recently, Commission v Anic, cited above at paragraph 270, paragraphs115 to 118, and Hüls v Commission, cited above at paragraph 155, paragraphs 158to 161). 3151. In this instance, it must be found that at the meeting of the ETF in London on 17June 1986, that is to say several weeks after the conclusion of the contract for thesupply of cement between Calcestruzzi and Titan, it was agreed that Mr d'Agostinoof Italcementi should 'coordin[ate] ... [the] Ferruzzi situation (memorandum fromMr Cheney of Blue Circle dated 19 June 1986, headed 'Points for action;contested decision, recital 25, paragraph 11; document 33.126/18787). 3152. In an internal memorandum of 4 September 1986 (contested decision, recital 27,paragraph 3; document 33.126/11026), Blue Circle states: 'In regard to Italy, Titan remain adamant that they will not cancel their contractwith Ferruzzi before December 1987 at the earliest when it appears they have anescape clause. 3153. At the meeting of Head Delegates and representatives of the ETF in Baden-Badenon 9 September 1986, it was observed, as regards Italy, in connection with point 1.5('Summary of statements and conclusions of the meetings of the Head Delegatesand representatives of the Task Force at Baden-Baden on 9 September 1986;contested decision, recital 25, paragraphs 22 and 28; documents 33.126/18859 and18860): '... Several meetings took place between Italian cement manufacturers and Ferruzziand it appears that an understanding regarding the ready-mix market can bereached. ... Titan could determine agreements with Ferruzzi end of 1987. 3154. According to Titan's letter of 2 September 1988 (contested decision, recital 27,paragraph 4; document 33.126/19196), mentioned above at paragraph 3140, '[o]n 6 February 1987, Calcestruzzi for the first time seem[ed] reluctant to confirmshipments schedule claiming that the situation is in evolution with the local cementindustries. 3155. According to the handwritten record drawn up on the following day by MrMarichal of Lafarge (contested decision, recital 27, paragraph 5; document33.126/4912), at the meeting of the ETF held in Geneva on 11 February 1987 theItalian representative, Italcementi, reported as follows on the Italian situation: 'The agreement between the cement producers and Ferruzzi has been signed. Itallows the threat to be removed of imports of 1.5 [million tonnes] by the lattergroup in a dozen ports, which would have been catastrophic for prices. Duration:5 years. Apart from the cross holdings which will block Calcestruzzi, the Ferruzzisubsidiary BPE [ready-made cement], but also the parent company, Ciments deRavenna, a series of measures designed to consolidate the alliance have beentaken. Ferruzzi will in return for its compliance receive the tidy sum of US$ 15 million ayear for five years. The sum will be paid partly in securities (Montedison) andpartly in cash: Ferruzzi will have to use part of the money to purchase BPEcompanies or holdings in BPE companies so as to put the coast under lock andkey. Two problems remain to be solved: 1. A use would have to be found for two Ferruzzi vessels. These are 6 000 DWTfloating silos. 2. The contracts for 75 000 tonnes a year with Titan ... will have to be honouredor the relevant penalties paid. In order to solve these problems, Italcementi requests the aid of its Europeancolleagues. The Italian cement producers will request EEC agreement for application of theItalian Law providing for the introduction of prior notification of all cementimports. They ask their European colleagues to apprise their EEC representatives so thatthey will not oppose the request. 3156. At the meeting of the subgroup 'Defensive Measures held on 17 March 1987, theItalian representative 'reiterated what had already been said at the meeting to theTask Force (cf. J.M. note of 12 February 1987), adding however that the agreementwith Ferruzzi had not yet been finalised ('Invasion threats to European cement producers: overview of the situation at 15 March 1987; contested decision, recital27, paragraph 5; document 33.126/4860). 3157. Those various extracts show that shortly after the conclusion of the contract for thesupply of cement between Calcestruzzi and Titan in April 1986 the question ofimports into Italy by the Ferruzzi/Calcestruzzi group of Greek cement was raisedat the level of the ETF, which had been set up in order to evaluate measures, inparticular dissuasive measures, to eliminate imports of cheap cement (in particularthose from Greece) threatening the stability of Western European markets (seeparagraphs 2537 and 2538 above). 3158. At the meeting of the ETF held on 17 June 1986, Italcementi was given the taskof coordinating the 'Ferruzzi situation. 3159. As a result of that collusion, vain attempts were made to induce Titan to terminatethe contract which it had concluded with Calcestruzzi. At the same time, theItalian cement producers entered into negotiations with the Ferruzzi group for thepurpose of persuading Ferruzzi's subsidiary Calcestruzzi to cease performing thatcontract. 3160. Those negotiations, reported to the members of the ETF and to the HeadDelegates in their meeting in Baden-Baden on 9 September 1986, led to anagreement between the Italian cement producers and Ferruzzi. 3161. The Italian representative informed the members of the ETF of that agreement atthe meeting on 11 February 1987. He stated, inter alia, that that agreement madeit possible to avoid the threatened imports of cement by the Ferruzzi group, whichwould have been regarded as disastrous for prices. He also asked for the assistanceof his European colleagues in resolving the problems connected with the non-performance of the Calcestruzzi-Titan contract. 3162. The agreement between the Italian cement producers and Ferruzzi was alsomentioned at the meeting of the subgroup 'Defensive Measures on 17 March1987. 3163. It follows from the foregoing analysis that, subject to the assessment in paragraphs3190 to 3300 below as to the correctness of the Commission's finding that thevarious undertakings and associations of undertakings referred to in Article 4(3)(a)of the contested decision did in fact participate, the Commission was entitled tofind that there were concerted practices at European level, the anti-competitivepurpose of which was to ensure that Calcestruzzi should cease to be a customer ofthe Greek producers, and in particular of Titan. Those practices constituteconcerted practices contrary to Article 85(1) of the Treaty according to the case-law cited at paragraph 3150 above. 3164. The applicant's argument must therefore be rejected. 3165. Second, Cementir claims that the measures to defend the Italian market had noanti-competitive object. 3166. It is, however, apparent from the above analysis in paragraphs 3150 to 3163 thatthe object of the concerted practices implemented as a result of Calcestruzzi'simports of cement from Greece was to make that undertaking cease to be acustomer of Titan, and thus to avoid the threatened import of 1.5 million tonnes'which would have been catastrophic for prices (document 33.126/4912). TheCommission was therefore entitled to find that the object of those concertedpractices was contrary to Article 85(1) of the Treaty. 3167. Third, Italcementi states that the record of the ETF meeting on 11 February 1987,drawn up by Lafarge's Mr Marichal, merely refers to the signing of an agreementwhose object was to avoid the threatened imports by Calcestruzzi of cement fromGreece. That document does not indicate that the agreement in question requiredCalcestruzzi to cease such imports. 3168. The Court points out that according to the document in question the Italianrepresentative stated that 'the agreement allowed the threat to be removed ofimports of 1.5 million tonnes by Ferruzzi into a dozen ports, which would havebeen catastrophic for prices. 3169. That statement shows that the object of the concerted practices which led to theagreement between the Italian cement producers and the Ferruzzi group was toprevent the economic interpenetration of markets and to hinder competition, whichis sufficient basis for a finding that those concerted practices were contrary toArticle 85(1) of the Treaty. 3170. Italcementi's argument must therefore be rejected. 3171. Fourth, Italcementi challenges the accuracy of the other information contained inthe abovementioned record of the meeting of the ETF held on 11 February 1987. It claims that that document does not prove that the Italian producers compensatedCalcestruzzi for the breach of its contract with Titan. The sum of USD 15 millionmentioned therein corresponds to the value of the discounts on list prices grantedto Calcestruzzi by the Italian cement producers. Similarly, the sale of shares inMontedison to the Ferruzzi group, also mentioned in that record, was separatefrom the negotiations with Calcestruzzi for the conclusion of the supply contracts. 3172. The Court points out that, in assessing the evidential value of a document, regardshould be had first and foremost to the credibility of the account it contains. Regard should be had in particular to the person from whom the documentoriginates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable(Opinion of Judge Vesterdorf, acting as Advocate General, in Rhône-Poulenc vCommission, cited above at paragraph 1053, at p. II-956). 3173. In the present case, the record of the meeting of the ETF on 11 February 1987 wasdrawn up by Lafarge's Mr Marichal the day after the meeting in which he hadtaken part. 3174. It states that the Italian representative first informed the other members that theagreement between the Italian cement producers and the Ferruzzi group had beensigned, which removed the threat of cement imports which was perceived ascatastrophic for prices. 3175. Next, it reports that the Italian representative stated that 'Ferruzzi [would] inreturn for its compliance receive the tidy sum of USD 15 million a year for fiveyears ... [a] sum [which would] be paid partly in securities (Montedison). 3176. Last, it mentions the problems raised by the Italian representative with regard tothe non-performance of the Calcestruzzi-Titan contract. 3177. The record therefore shows quite unequivocally that the Italian producers intendedto reward the Ferruzzi group, by transferring to it in particular Montedisonsecurities, for agreeing to suspend performance of the Calcestruzzi-Titan contract,a contract which Calcestruzzi had plainly concluded on particularly advantageousconditions in terms of price. 3178. In any event, Italcementi's argument cannot overturn the analysis of documents inparagraphs 3151 to 3163 above, which shows that the Commission correctly foundthat there were concerted practices whose anti-competitive purpose was to causeCalcestruzzi to cease being a customer of Titan. 3179. Fifth, Italcementi asks what reasons could have led the defensive measures decidedon by a score of undertakings to be limited to the Italian market only. It claimsthat the absence of evidence of measures to defend the other national marketsdemonstrates that there was no connection whatsoever between the pressureallegedly brought to bear on Calcestruzzi and a common strategy to protectnational markets. 3180. The Court points out, however, that Italcementi does not deny that 'at the end of1985/early 1986, Greek producers looked towards Western Europe, especially tothose markets [they] regarded as more easily accessible, [including] Italy, wheresmall associations formed by consumers and small import/export companies hadtaken the step of importing Greek cement (contested decision, recital 24,paragraph 1). 3181. In any event, the absence of evidence of any measures to defend markets otherthan the Italian market cannot alter the evidence in the bundle of documentsreferred to in recital 27, paragraphs 3 to 5, of the contested decision, on the basisof which the Commission correctly found that there were concerted practices todefend the Italian market (see paragraphs 3151 to 3163 above). 3182. Italcementi's argument must therefore be rejected. 3183. Sixth, Cementir states that the measures to defend the Italian market had no anti-competitive effect, as is shown by the statistics indicating that Heracles' exports toItaly increased from 1987 onwards. 3184. It must, however, be recalled that the concerted practices implemented followingthe imports into Italy by the Ferruzzi group of cement from Greece led in the endto an agreement between the Italian cement producers and the Ferruzzi group, anagreement which, according to the report by the Italian representative at themeeting of the ETF on 11 February 1987, 'allow[ed] the threat to be removed ofimports of 1.5 [million tonnes] by [the Ferruzzi group] in a dozen ports, whichwould have been catastrophic for prices. 3185. In any event, those concerted practices were found by the Commission to beinfringements on the sole ground that they had an anti-competitive object, whichhas in fact been established (see paragraphs 3151 to 3163). Such proof is sufficientfor a finding that such concerted practices are contrary to Article 85(1) of theTreaty (see, to that effect, the case-law cited in paragraph 1674 above). 3186. Seventh, CBR and Blue Circle argue that, since presence at ETF meetings wasused to establish the infringement found in Article 4(1) of the contested decision,the Commission could not conclude that a separate infringement existed, on thebasis of presence at those meetings, simply because the Italian situation wasmentioned at them. 3187. None the less, it is apparent from reading recitals 25 and 27, paragraphs 1 to 5, ofthe contested decision, that the Commission relied for the most part on differentevidence in establishing, on the one hand, the infringement referred to in Article4(1) (agreement on the setting-up of the ETF) and, on the other, the infringementfound in Article 4(3)(a) (concerted practices for the defence of the Italian market). 3188. Amongst the evidence presented in the above paragraphs of recital 27, it is clearthat, as has been found in paragraphs 3138 to 3142 above, in finding the concertedpractices referred to in Article 4(3)(a) the Commission relied on evidence otherthan discussion of the Italian situation at meetings of the ETF, namely, on the BlueCircle internal memorandum of 4 September 1986 which refers to discussions withTitan concerning the contract which Titan had concluded with Calcestruzzi(contested decision, recital 27, paragraph 3; documents 33.126/11026 and 11027) and the extract from the letter of 2 September 1988 from Titan to its lawyers inLondon, describing Calcestruzzi's reluctance to perform that contract afterFebruary 1987 (contested decision, recital 27, paragraph 4; documents 33.126/19195and 19196). 3189. CBR and Blue Circle's argument must therefore be rejected. 2. The applicants' participation in the concerted practices 3190. In the contested decision (recital 55, paragraph 1), the Commission states: 'The pressure exerted on Calcestruzzi and the non-performance by Calcestruzzi ofthe contract for the purchase of Titan cement ... are the result of concertedpractices between the Italian producers Italcementi, Unicem and Cementir andbetween them and the other participants in the Cembureau Task Force referredto in paragraph 9 of recital 53 ... The other participants in the Cembureau TaskForce are also parties to the concerted practices, since the Calcestruzzi problemwas discussed at a number of meetings of the Task Force and Head Delegates (seeparagraphs 3 and 5 of recital 27) and since the strategies developed by the TaskForce are based on the solidarity of all the participants (see paragraph 3 of recital25). 3191. On those grounds, the Commission attributes responsibility for the concertedpractices to all the applicants referred to in Article 4(1) of the contested decision,namely: CBR, Cembureau, Dyckerhoff, SFIC, Ciments Français, Heidelberger,Lafarge, Aalborg, BDZ, Unicem, Asland, Uniland, Oficemen, Irish Cement,Italcementi, Holderbank, Aker, EUROC, Cementir et Blue Circle. 3192. Apart from Cembureau and the SFIC (see paragraph 3136 above), all thoseapplicants have put forward arguments denying any involvement in the concertedpractice in question. 2.1. CBR, Dyckerhoff, Aalborg, Uniland and Irish Cement 3193. CBR claims that it never took part in any meeting of the ETF. In any event, atthose meetings there was never any question of exerting any pressure whatsoeveron Calcestruzzi. While it acknowledges that it took part, as Head Delegate, in themeetings of Head Delegates on 9 September and 6 November 1986, CBR statesthat it is apparent from the minutes of the first of those two meetings that it wasnot associated with the measures taken to resolve the Calcestruzzi problem andthat its intervention was neither contemplated nor sought. That can be explainedby the fact that it was not present on the markets threatened by the exports of Greek producers. At the meeting of 6 November 1986, the Italian representativemerely reported facts relating to his market. 3194. CBR adds that the Commission's argument that the ETF strategies were foundedon the solidarity of all the participants is not relevant. That allegation is based onan extract from a mere working document, namely the Zurich/Céligny document,which was, moreover, updated at meetings in which CBR did not take part. 3195. Dyckerhoff states that it did not take part in the meetings of the ETF and that thedocuments referred to by the Commission in the contested decision show that the'Calcestruzzi problem was not tackled at the meetings in Rome on 28 May 1986,in Stockholm on 9 June 1986 or in Brussels on 6 November 1986, at which it waspresent. At the meeting of Head Delegates in Baden-Baden on 9 September 1986,in which it took part in the person of Mr Lose, there was only a very brief reporton the Italian situation. Mr Lose was not up to date on relationships betweenFerruzzi, Titan and the Italian cement producers. In any event, no decision orcollusion on that point took place during that meeting. Emphasising that it had nobusiness on the Italian market, Dyckerhoff claims that, according to the reportgiven at the Baden-Baden meeting, the Italian producers had entered intonegotiations with the Ferruzzi group a long time previously. The pressure broughtto bear by the Italian producers on the Ferruzzi group to make it give up itssupplies of Greek cement cannot therefore have been triggered off by that meeting. 3196. Aalborg claims that, although the Calcestruzzi-Titan contract was mentioned at themeeting in Baden-Baden on 9 September 1986, it was not invited to give any activesupport in that regard. Nor was it informed of subsequent developments in thatmatter. Moreover, it found no cause for concern in the purchase by Calcestruzziof cement from Greece. 3197. Uniland denies that the solidarity rule to which all the participants in the meetingsof the ETF supposedly conformed makes it possible to find that it participated inthe concerted practices at issue. The reference to that alleged solidarity appears,moreover, in the Zurich/Céligny document, drawn up at meetings in which it didnot take part. Uniland states that the presence of Mr Rumeu at the meetings ofHead Delegates of 9 September and 6 November 1986 does not establish that itparticipated in the concerted practices at issue. It cannot be concluded from thedocuments concerning those two meetings that Mr Rumeu participated in anydiscussion whatsoever concerning the attitude to be adopted with regard to theItalian market. Nor can remarks made by other persons at those meetingsconcerning the Italian market make it possible to conclude that there was anyconduct seeking to restrict competition of which Mr Rumeu could have been aware. The allusion to the negotiations of the Italian cement producers reflect mereunilateral statements simply mentioning a future intention. Those statements neverled to declarations or sanctions on the part of other European cement producers. The Calcestruzzi problem was not mentioned at the meeting in Brussels on 6November 1986. 3198. Irish Cement objects to the way in which the Commission holds it responsible formeasures to defend the Italian market, when it is not referred to in recitals 27 and55 of the contested decision, which concern those defensive measures. It states thatthe Zurich/Céligny document, on which the Commission relies in recital 55,paragraph 1, was conceived at meetings in which it did not take part. It claims,moreover, not to have taken part in any discussion concerning the Ferruzzi problemat any meetings of the ETF, since it did not attend them, or at the meeting ofHead Delegates in Baden-Baden on 9 September 1986. At that last meeting, thediscussions concerning the measures to defend the Italian market did not take placein the presence of its representative, Mr Quirke, or, in any event, he was not awarethat those discussions related to unlawful actions, since the sole purpose of hisbeing there was to coordinate contacts arranged with members of the EuropeanParliament in Strasbourg on 10 September 1986. Irish Cement points out in thisconnection that it was only its nationality that was of interest to the otherparticipants in that meeting, since the member of the Commission responsible forcompetition policy at the time, Mr Sutherland, was Irish. Finally, it is not apparentfrom the notes concerning the meeting in Brussels on 6 November 1986, in whichit acknowledges having taken part, that the problem of imports into Italy of cementfrom Greece was discussed during that meeting. 3199. The Court points out that where an undertaking has, even without playing an activerole, attended a meeting during which unlawful concerted action has been mooted,it is deemed to have participated in that concerted action unless it proves that itopenly distanced itself from it or informed the other participants that it intendedto take part in that meeting with different objects in mind (see, to that effect, thecase-law cited in paragraph 1353 above). 3200. In the present case, CBR, Dyckerhoff, Aalborg, Uniland and Irish Cement werepresent at the meeting of Head Delegates and representatives of the ETF inBaden-Baden on 9 September 1986 (see paragraphs 2599, 2618, 2655, 2695 and2730 above). 3201. According to paragraph 1.5 of the minutes of that meeting (contested decision,recital 25, paragraphs 22 and 28; documents 33.126/18859 and 18860), it waspointed out, with regard to Italy: '... Several meetings took place between Italian cement manufacturers and Ferruzziand it appears that an understanding regarding the ready-mix market can bereached. ... Titan could determine agreements with Ferruzzi end of 1987. 3202. As stated in paragraph 2600 above, that meeting in Baden-Baden was dedicatedexclusively to the ETF, the anti-competitive objective of which was mentioned at the start of the meeting, and more specifically to the organisation of its work andto the assessment of the progress of various dissuasive and persuasive measureswhich had been entrusted to its consideration. The participants were therefore notunaware of the unlawful purpose behind the negotiations described to them duringthat meeting in regard to the Ferruzzi situation. 3203. Since CBR, Dyckerhoff, Aalborg, Uniland and Irish Cement have not shown that,at that meeting, they openly showed their disapproval of those unlawful practicesor informed the other participants that they intended to take part in that meetingwith different objects in mind, the Commission was therefore entitled to considerthat those five undertakings had acceded to those practices or at least that they hadgiven that impression to the other participants in a spirit of solidarity whenconfronted with the decision of the Greek cement industry to export its surplusproduction to the markets of Western Europe, a decision perceived as a seriousthreat to the stability of all those markets. The lack of evidence of conduct bythose undertakings on that market in relation to the situation brought about byCalcestruzzi is irrelevant in that regard, because the Commission has established(see paragraphs 3151 to 3163 above) that the collusion to which they acceded atthe meeting in Baden-Baden was in the nature of a concerted practice contrary toArticle 85(1) of the Treaty in that it gave rise to conduct on the market by otherundertakings involved in that same collusion. Moreover, in the absence of proof tothe contrary, which it was for them to adduce, it must be held that thoseundertakings, which remained active on the market, took account of that collusionwhen determining their conduct on that market (Commission v Anic, cited inparagraph 270 above, and Hüls v Commission, cited in paragraph 155 above,paragraph 162). 3204. There being no need to consider the correctness of the applicants' argumentsseeking to show that the Ferruzzi situation was not raised during the meeting inBrussels on 6 November 1986, it must therefore be concluded that the Commissionwas entitled to find in Article 4(3)(a) of the contested decision that CBR,Dyckerhoff, Aalborg, Uniland and Irish Cement participated in the concertedpractices which sought to cause Calcestruzzi to cease being a customer of theGreek producers, and of Titan in particular. 3205. None the less, the contested decision does not include any evidence that those fiveundertakings adhered to those concerted practices before taking part in a meetingof Head Delegates and representatives of the ETF in Baden-Baden on 9September 1986. In those circumstances, Article 4(3)(a) must be annulled in so faras it finds that those undertakings participated in the infringement in questionbefore that date. 3206. Uniland also points out that the Commission did not find that Hornos Ibéricos,Cementos del Norte or Norcem took part in the infringement, even though representatives of those undertakings were present at the meeting of HeadDelegates and members of the ETF in Baden-Baden on 9 September 1986. 3207. However, that fact cannot in any event constitute a ground for setting aside thefinding of an infringement by Uniland, provided that its participation in theinfringement has been correctly established by the Commission (see, to that effect,Woodpulp II, cited at paragraph 106 above, paragraph 146). On the basis of thegrounds set out above, the Court is able to find that, in the contested decision, theCommission was entitled to conclude that Uniland had participated in theconcerted practices referred to in Article 4(3)(a). 2.2. Ciments Français 3208. Ciments Français claims that the Head Delegates took no steps to defend theItalian market at the meetings referred to in the contested decision. At most, theywere briefly informed of the general situation in Italy by that country's HeadDelegate. In any event, Ciments Français never took part in discussions concerningthe imports into Italy of cement from Greece. 3209. The Court points out that Ciments Français did not participate in any of themeetings of the ETF referred to in recital 27, paragraph 3, of the contesteddecision. Nor did it take part in the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986. 3210. Mr Laplace, its Chairman, did attend the meeting in Brussels on 6 November 1986,also referred to in recital 27, paragraph 3, of the contested decision. However,according to the notes relating to that meeting (contested decision, recital 25,paragraphs 39 and 40; document 33.126/19007), Italcementi's Mr Pesenti merelyinformed the other participants that 'while they had expected to see the firstshipment of cement arrive in Sardinia in mid-October, nothing [had] yet takenplace. That extract does not prove that the problem of Calcestruzzi's imports intoItaly of cement from Greece was discussed during that meeting. 3211. Consequently, Ciments Français' participation in the concerted practices in questioncannot be inferred from its presence at the meeting in Brussels on 6 November1986. 3212. In recital 55, paragraph 1, of the contested decision, the Commission, referring tothe Zurich/Céligny document mentioned in recital 25, paragraph 3, claims that thestrategies developed by the ETF were based on the solidarity of all the participants. It also points (defence in Case T-39/95) to the information in the report of themeeting of the ETF on 11 February 1987 concerning the help requested by theItalian representative from his 'European colleagues to resolve the problemsarising from the non-performance of the Calcestruzzi-Titan contract (contested decision, recital 27, paragraph 5; document 33.126/4912). Finally, the Commissionpoints out that Mr Marichal of Lafarge was asked to send Ciments Français a copyof the minutes of the meeting of Head Delegates and representatives of the ETFin Baden-Baden on 9 September 1986, minutes which mentioned the negotiationsbetween Italian cement producers and the Ferruzzi group. 3213. It must however be stated that Ciments Français played no direct role in thenegotiations seeking the termination of the Calcestruzzi-Titan contract. As hasbeen found in paragraphs 3209 to 3211 above, it did not take part in any of themeetings at which those negotiations were mentioned. 3214. In those circumstances, none of the evidence adduced by the Commission (seeabove, paragraph 3212) is sufficient to prove that Ciments Français acceded, evenimplicitly, to the concerted practices in question, a necessary precondition for afinding that it was responsible for that infringement. 3215. The Commission was therefore not entitled to hold that Ciments Français took partin those concerted practices. It follows that Article 4(3)(a) of the contesteddecision must be annulled in so far as it finds that Ciments Français participatedin those concerted practices. 2.3. Heidelberger 3216. Heidelberger claims that, according to the contested decision, the concertedpractices began on 17 June 1986. The Commission has proved its presence onlyat the meeting in Rome on 28 May 1986. In those circumstances, it cannot be heldresponsible. 3217. The Court points out that Heidelberger did not in fact take part in any of themeetings referred to by the Commission in recital 27, paragraph 3, of the contesteddecision. 3218. In recital 55, paragraph 1, of the contested decision, the Commission, referring tothe Zurich/Céligny document mentioned in recital 25, paragraph 3, claims that thestrategies developed by the Task Force were based on the solidarity of all theparticipants. It also states (defence in Case T-42/95) that Mr Lose, of Dyckerhoff,was asked to send to Mr Schuhmacher, of Heidelberger, a copy of the minutes ofthe meeting of Head Delegates and representatives of the ETF in Baden-Badenon 9 September 1986, minutes which mentioned the negotiations between theItalian cement producers and the Ferruzzi group. 3219. Heidelberger played no direct role in the negotiations seeking the termination ofthe Calcestruzzi-Titan contract. Nor did it attend any of the meetings at whichthose negotiations were mentioned (see paragraph 3217 above). 3220. In those circumstances, none of the evidence adduced by the Commission (seeparagraph 3218 above) is sufficient to prove that Heidelberger acceded, evenimplicitly, to the concerted practices in question, a necessary precondition for afinding that it was responsible for that infringement. 3221. The Commission also claims that Heidelberger was present at the meeting in Romeon 28 May 1986 at which it was agreed to divert imports from Greece in order toprotect the European markets, in particular the Italian market, which was especiallythreatened by those imports. 3222. However, besides the fact that the meeting of 28 May 1986 was not taken intoconsideration in the statement of facts relating to the measures to defend theItalian market (recital 27) or in the legal assessment of those facts (recital 55,paragraph 1), the minutes of that meeting do not show that the 'Calcestruzziproblem was raised. Heidelberger's participation in the concerted practicescannot therefore be inferred from its presence at the meeting in Rome. 3223. The Commission was therefore not entitled to find that Heidelberger participatedin the concerted practices in question. It follows that Article 4(3)(a) of thecontested decision must be annulled in so far as it finds that Heidelbergerparticipated in those concerted practices. 2.4. Lafarge 3224. Lafarge cannot understand the Commission's claims that it brought pressure tobear on Calcestruzzi. None of the documents referred to by the Commission, towhich Lafarge had access, mentions its participation in such pressure. 3225. The Court points out that the Commission does not claim that Lafarge broughtpressure to bear on Calcestruzzi in order to cause it to cease to be a customer ofTitan. In recital 55, paragraph 1, of the contested decision, the Commission statesthat the pressure brought to bear to that end on Calcestruzzi was the result ofconcerted practices between the Italian cement producers, on the one hand, andthe participants in the Task Force, including Lafarge, on the other hand. The latterwere party to the concerted practices in question on the grounds, in particular, thatthe 'Calcestruzzi problem was discussed at several meetings of the ETF and ofthe Head Delegates. 3226. Lafarge does not deny attending:  the meeting of the ETF on 17 June 1986, at which it was agreed to entrustthe 'coordination of [the] Ferruzzi situation to Italcementi (contesteddecision, recital 25, paragraph 11: documents 33.126/18756 and 18787);  the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986, at which it was stated that the negotiationsbetween the Italian cement producers and the Ferruzzi group mightproduce an agreement and that Titan might put an end to its contracts withthat group by the end of 1987 (contested decision, recital 25, paragraphs 22,23 and 28; documents 33.126/18857, 18858 and 18860);  the meeting of the ETF of 11 February 1987 at which the Italianrepresentative informed the other participants that the Italian cementproducers and the Ferruzzi group had reached an agreement making itpossible to avoid the threat of imports of cement by the Ferruzzi group, athreat considered to be catastrophic for prices, and requested the aid of hisEuropean colleagues with a view to resolving the problems raised by thenon-performance of the Calcestruzzi-Titan contract (contested decision,recital 27, paragraph 5; documents 33.126/4911 and 4912);  the meeting of the subgroup 'Defensive Measures on 17 March 1987 atwhich it was again reported that agreement had been reached between theItalian cement producers and the Ferruzzi group (contested decision, recital27, paragraph 5; document 33.126/4860). 3227. Since Lafarge has not shown that at those meetings it openly distanced itself fromthe unlawful measures mooted in relation to the Ferruzzi situation or that itinformed the other participants that it intended to attend those meetings withdifferent objects in mind, the Commission was entitled to take the view thatLafarge had acceded to those measures or at least that it had given that impressionto the other participants in a spirit of solidarity when confronted with the decisionof the Greek cement industry to export its surplus production onto the markets ofWestern Europe, a decision perceived as a serious threat to the stability of all thosemarkets (see, to that effect, the case-law cited at paragraph 1353 above). The lackof evidence of conduct by Lafarge on that market in relation to the situationbrought about by Calcestruzzi is irrelevant in that regard, because the Commissionhas established (see paragraphs 3151 to 3163 above) that the collusion to whichthey acceded at the meetings referred to paragraph 3226 above was a concertedpractice contrary to Article 85(1) of the Treaty in that it gave rise to conduct onthe market by other undertakings involved in that same collusion. Moreover, in theabsence of proof to the contrary, which it was for Lafarge to adduce, it must beheld that Lafarge, which remained active on the market, took account of thatcollusion when determining its conduct on that market (Commission v Anic, citedin paragraph 270 above, paragraph 121, and Hüls v Commission, cited in paragraph155 above, paragraph 162). 3228. The Commission was therefore entitled to find in Article 4(3)(a) of the contesteddecision that Lafarge participated from 17 June 1986 in the concerted practices designed to induce Calcestruzzi to cease being a customer of the Greek producers,and of Titan in particular. 3229. Lafarge maintains that at the hearings in March 1993 it was not able to submitarguments on the objection that it participated in the concerted practices intendedto deprive the Greek producers of Calcestruzzi as a customer. 3230. None the less, it is apparent from the timetable of the hearings that Lafarge wasinvited to submit its observations on 12 March 1993 between 10.30 and 11.00 onthe objections set out in Chapter 2, section 2, and Chapter 10, point 61(h), of theSO concerning the European Task Force. One of those objections was thatpressure had been brought to bear on Calcestruzzi in order to deprive the Greekproducers, in particular Titan, of its custom (SO, point 19(d) and point 61(h)(iv)). Lafarge, which on reading the SO was in a position to understand that that specificobjection was also directed against it (see paragraph 602 above), therefore had anopportunity to express itself with regard to that claim at the hearing on 12 March1993. Its argument must therefore be rejected. 3231. Lafarge alleges that the Commission has found it responsible for an infringementof Article 85(1) of the Treaty consisting of bringing pressure to bear onCalcestruzzi on the sole basis of its participation in the ETF, an infringementupheld in Article 4(1). By so doing, the Commission breached its rights of defenceand also Article 6(2) of the European Convention on Human Rights. 3232. However, in both the SO and the contested decision, the Commission separatelyidentified the facts on the basis of which, correctly as far as Lafarge is concerned,it found, first, the infringement connected with the agreement on the setting-up ofthe ETF (SO, point 17; contested decision, recital 25) and, second, theinfringements connected with the concerted practices directed at depriving theGreek producers and Titan in particular of Calcestruzzi as a customer (SO, point19(d); contested decision, paragraph 27) (see above, paragraphs 2649 and 2650 and3226 to 3228, respectively). 3233. Lafarge's argument, alleging infringement of its rights of defence and breach of theprinciple of the presumption of innocence laid down in Article 6(2) of the ECHR,must therefore be rejected. 2.5. BDZ and Oficemen 3234. BDZ states that recital 27 of the contested decision does not contain any allusionto either the BDZ or the participation of German representatives in the measuresto defend the Italian market. It states that the ETF was a tool of the cementproducers and not a Cembureau committee. In addition, none of the documents referred to in the contested decision reveals the express or implied approval byBDZ of the defensive measures in question. 3235. Oficemen states that it did not participate in the setting up and running of theETF. Consequently, it cannot be held responsible for the disputed concertedpractices. Nor has the Commission proved that its participation in the infringementin question went beyond mere passive receipt of information concerning the Italiansituation. Moreover, the Commission has not shown how Oficemen could haveparticipated in exerting pressure on a market quite foreign to its members' markets. 3236. The Court points out that BDZ's Mr Steinbach attended the meeting of HeadDelegates and representatives of the ETF in Baden-Baden on 9 September 1986(see paragraphs 2667 and 2668 above) and that Oficemen was represented there(see above, paragraphs 2711 and 2712). As has already been stated (see paragraph3201 above), it was indicated at that meeting that negotiations between the Italiancement producers and the Ferruzzi group might lead to an agreement and thatTitan might determine its contracts with that group at the end of 1987. 3237. Furthermore, BDZ and Oficemen attended the meeting of the subgroup'Defensive Measures on 17 March 1987 (see above, paragraphs 2670 and 2715to 2718). At that meeting, the Italian representative recalled what had been saidat the previous meetings, in particular the meeting of the ETF on 11 February1987, concerning the agreement between the Italian cement producers and theFerruzzi group. 3238. Since BDZ and Oficemen have not demonstrated that, at those meetings, theirrepresentatives openly distanced themselves from the unlawful measures mootedin relation to the Ferruzzi situation or that they informed the other participantsthat they intended to attend those meetings with different objects in mind, theCommission was justified in considering that they had acceded to those measuresor at least that they had given that impression to the other participants in a spiritof solidarity when confronted with the decision of the Greek cement industry toexport its surplus production onto the markets of Western Europe, a decisionperceived as a serious threat to the stability of all those markets (see, to that effect,the case-law cited at paragraph 1353 above). The lack of evidence of action bythose two associations on that market in relation to the situation brought about byCalcestruzzi is irrelevant in that regard, because the Commission has established(see paragraphs 3151 to 3163 above) that the collusion to which they acceded atthe meeting in Baden-Baden was in the nature of a concerted practice contrary toArticle 85(1) of the Treaty in that it gave rise to action on the market by otherundertakings involved in that same collusion. Moreover, in the absence of proof tothe contrary, which it was for them to adduce, it must be held that those twoassociations took account of that collusion when determining their conduct on themarket (Commission v Anic, cited in paragraph 270 above, paragraph 121, and Hülsv Commission, cited in paragraph 155 above, paragraph 162). 3239. The Commission was therefore entitled to find in Article 4(3)(a) of the contesteddecision that those two associations of undertakings had participated in theconcerted practices designed to cause Calcestruzzi to cease being a customer of theGreek producers, and of Titan in particular. 3240. Nevertheless, since the contested decision does not contain any evidence to showthat BDZ and Oficemen acceded to those concerted practices before the meetingof Head Delegates and representatives of the ETF in Baden-Baden on 9September 1986, Article 4(3)(a) must be annulled in so far as it finds that BDZ andOficemen participated in the infringement before that date. 3241. Oficemen claims that the infringement alleged against it cannot be distinguishedfrom the infringement consisting of its participation in the ETF. The Commissionhas therefore fined it twice for the same facts, in breach of the non bis in idemprinciple. 3242. However, as appears from Article 9 and recital 65, in particular paragraph 8, of thecontested decision, it is only the infringement arising from participation in theCembureau agreement referred to in Article 1 which has given rise to theimposition of a fine with regard to the market for grey cement. Oficemen'sargument alleging breach of the non bis in idem principle must, therefore, berejected. 3243. Oficemen considers that, by finding the members of the ETF responsible for themeasures taken by the ETF solely on the basis of their being members, theCommission has departed from the criterion used to impugn the other measuresimplementing the Cembureau agreement. Those measures were attributed only totheir authors, whether or not they were discussed at meetings involving otherundertakings or associations of undertakings. 3244. However, that line of argument cannot prevail over the above analysis inparagraphs 3236 to 3240 concerning the merits of the Commission's finding thatOficemen participated in the concerted practices found in Article 4(3)(a) of thecontested decision. 2.6. Unicem 3245. Unicem observes that it took part in only one meeting concerning the ETF, namelythat of the subgroup 'Defensive Measures on 17 March 1987. That meeting, theobject of which was lawful, does not establish any link between the presumedcollusion at ETF level and Unicem. The applicant claims that no active or passiveconduct on its part or on the part of the other European cement producersresulted from that meeting. 3246. The Court points out that, according to the minutes of the meeting of HeadDelegates and representatives of the ETF in Baden-Baden on 9 September 1986(contested decision, recital 25, paragraphs 22 and 28; documents 33.126/18859 and18860), '[s]everal meetings took place between the Italian cement producers andFerruzzi and it appeared that an agreement might be reached with regard to theready-mix cement market. 3247. In its letter of 2 September 1988 to its lawyers in London (contested decision,recital 27, paragraph 4; document 33.126/19196) Titan explains that 'on 6 February1987, Calcestruzzi for the first time seem[ed] reluctant to confirm shipmentsschedule claiming that the situation is in evolution with the local cementindustries. 3248. At the meeting of the ETF on 11 February 1987 and that of the subgroup'Defensive Measures on 17 March 1987, mention was made of an agreementbetween the Italian cement producers and the Ferruzzi group, which made itpossible to avoid a threat of imports of cement which was perceived as disastrousfor prices. 3249. According to a telex from Italcementi to Titan on 13 May 1987 (contested decision,recital 27, paragraph 8; document 33.126/19204) and a telex from Calcestruzzi toTitan on 2 June 1987 (contested decision, recital 27, paragraph 10; document33.126/19218, and not 19208, as mistakenly stated in the contested decision (seeabove, paragraph 313)), the suspension of deliveries of cement agreed betweenTitan and Calcestruzzi was determined by an agreement concluded by Calcestruzziwith the major Italian cement producers, including Unicem. 3250. It is apparent from that bundle of documents that Unicem was one of the Italiancement producers which intervened with the Ferruzzi group in order to bring aboutCalcestruzzi's suspension of the performance of its contract concluded with Titanin April 1986. 3251. Moreover Mr Alber, of Unicem, reported at the meeting of the subgroup'Defensive Measures on 17 March 1987 on the progress of negotiations betweenthe Italian cement producers and the Ferruzzi group (contested decision, recital 25,paragraph 47; documents 33.126/4858 and 4860). 3252. In those circumstances, the Commission was entitled to find in Article 4(3)(a) ofthe contested decision that Unicem had participated in the concerted practicesdesigned to induce Calcestruzzi to cease being a customer of the Greek producers,and of Titan in particular. 3253. Nevertheless, the contested decision contains no evidence on the basis of which itcan be held that Unicem participated in those concerted practices before 9September 1986, the date of the meeting of Head Delegates and representatives of the ETF in Baden-Baden, in whose minutes mention is made for the first timeof the negotiations between the Italian cement producers and the Ferruzzi group. It follows that Article 4(3)(a) must be annulled in so far as it finds that Unicemparticipated in the infringement in question before that date. 2.7. Asland 3254. Asland states that it is not mentioned at all in the statement of facts concerning themeasures to defend the Italian market. Moreover, the automatic application of thetheory of a single and continuous agreement concerning the ETF cannot prove itsinvolvement in such measures, since it has not been charged with participating inall the infringements supposedly constituting measures to implement that single andcontinuous agreement. The Commission's reference in recital 55, paragraph 1, ofthe contested decision to the alleged solidarity of the participants in the ETF isquite without relevance in assessing Asland's responsibility for the infringementfound in Article 4(3)(a). Finally, the dates taken as the start (17 June 1986) andend (15 March 1987) of that infringement rule out Asland's participation in it. 3255. The Court points out that Asland did not in fact attend any of the meetingsreferred to by the Commission in recital 27, paragraph 3, of the contested decision. 3256. In recital 55, paragraph 1, the Commission, referring to the Zurich/Célignydocument mentioned in recital 25, paragraph 3, claims that the strategies developedby the ETF were based on the solidarity of all the participants. 3257. Asland played no direct role in the negotiations directed at termination of theCalcestruzzi-Titan contract. Nor did it attend any of the meetings at which thosenegotiations were mentioned (see above, paragraph 3255). 3258. In those circumstances, the fact that, according to the Zurich/Céligny document, thevarious measures contemplated at the time in order to counter the importsthreatening the stability of the Western European markets (in particular importsfrom Greece) represented 'a response based on solidarity (contested decision,recital 25, paragraph 3; document 33.126/18772) is not sufficient to prove theparticipation, even implicit, of Asland in the concerted practices in question, anecessary precondition of liability for the infringement. 3259. The Commission relies next on the presence of Asland at the meeting in Stockholmon 9 June 1986. 3260. It is sufficient to point out here that that fact has not been established (see above,paragraphs 3060 to 3063). 3261. Finally, the Commission claims that Asland's membership of the ETF indicated itsgeneral acceptance of the ETF's rules and actions. It is not therefore necessary toproduce evidence of its specific consent with regard to each measure adopted bythe others. 3262. However, the fact that it had established that Asland was involved in one of theinfringements constituting the single continuous agreement concerning the ETF,namely the agreement relating to the setting up of the ETF (contested decision,Article 4(1)), did not entitle the Commission to find, on absolutely no evidence,that Asland participated in other unlawful acts allegedly linked to the single andcontinuous ETF agreement, in this instance, the concerted practices to defend theItalian market referred to in Article 4(3)(a) of the contested decision. Nor is theCommission's line of argument in keeping with the approach followed in theoperative part of the contested decision. As has been pointed out (see paragraphs2509 to 2511 above), the Commission dealt quite separately with the various factorsallegedly constituting the single and continuous ETF agreement, not referring to thesame addressees each time, and finding a different duration for each of them. 3263. The Commission was therefore not justified in finding that Asland participated inthose concerted practices. It follows that Article 4(3)(a) of the contested decisionmust be annulled in so far as it finds that Asland participated in the infringementin question. 2.8. Italcementi 3264. Italcementi claims that the explanations put forward by Calcestruzzi in February1987 in order to justify breach of its delivery contract with Titan (see contesteddecision, recital 27, paragraph 4) cannot be relied upon against it, since they relateto a fact which concerns Calcestruzzi alone. 3265. However, it must be pointed out that Italcementi attended various meetings atwhich the Calcestruzzi problem was mentioned. 3266. It took part in the meeting of the ETF in London on 17 June 1986, at which it wasgiven the task of 'coordinating the Ferruzzi situation (contested decision, recital25, paragraph 11; document 33.126/18787). 3267. It took part in the meeting of Head Delegates and representatives of the ETF inBaden-Baden on 9 September 1986, at which it was stated that the negotiationsunder way between the Italian cement producers and Ferruzzi might lead to anagreement regarding the ready-mix concrete market, and that Titan mightterminate its contracts with Ferruzzi at the end of 1987 (contested decision, recital25, paragraphs 22 and 28; documents 33.126/18859 and 18860). 3268. It also attended the meeting of the ETF on 11 February 1987 (contested decision,recital 25, paragraph 45; document 33.126/18760). At that meeting, it informed theother participants that the Italian cement producers and the Ferruzzi group hadreached an agreement making it possible to avoid threatened imports of cementby that group, a threat judged to be catastrophic for prices. It reported theproblems connected in particular to the non-performance of the Calcestruzzi-Titancontract and sought the aid of its European colleagues with a view to resolvingthose problems (contested decision, recital 27, paragraph 5; document 33.126/4912). 3269. Furthermore, having regard to Italcementi's telex to Titan on 13 May 1987 and toCalcestruzzi's telex to Titan on 2 June 1987 (see paragraph 3249 above),Italcementi was one of the Italian cement producers which approached Ferruzzi inorder to induce Calcestruzzi to suspend performance of its contract with Titan. 3270. On the basis of those various findings, the Commission was therefore justified infinding in Article 4(3)(a) of the contested decision that Italcementi participatedfrom 17 June 1986 in the concerted practices designed to induce Calcestruzzi tocease to be a customer of the Greek producers and of Titan in particular. 2.9. Holderbank 3271. Holderbank denies any participation in the agreements signed with Calcestruzzi. Furthermore, it had no interest in participating in an agreement relating to theItalian market since, at that time, it had no production of its own or sales networkin Italy. 3272. The Court points out that, among the measures to defend the Italian market, theCommission finds that Holderbank participated only in the concerted practicesdesigned to induce Calcestruzzi to cease to be a customer of the Greek producers,and of Titan in particular (contested decision, Article 4(3)(a)). It does not find thatHolderbank participated in the agreement relating to the contracts and agreementssigned on 3 and 15 April 1987 with Calcestruzzi, the purpose of which was toprevent imports by Calcestruzzi of cement from Greece (Article 4(3)(b)). 3273. With regard to Holderbank's participation in the infringement found in Article4(3)(a) of the contested decision, it must be observed that Holderbank attendedthe meeting of the ETF on 17 June 1986 (contested decision, recital 25, paragraph11; document 33.126/18756), the meeting of the Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986 (contesteddecision, recital 25, paragraphs 22 and 23; document 33.126/11857), and themeeting of the ETF on 11 February 1987 (contested decision, recital 25, paragraph45; document 33.126/18760). 3274. Having regard to the above findings concerning those three meetings (seeparagraph 3226 above), and in the absence of any evidence adduced byHolderbank to show that at these meetings it openly distanced itself from theunlawful measures which were mooted there concerning the Ferruzzi situation orthat it informed the other participants that it was attending the meetings withdifferent objects in mind, the Commission was justified in considering thatHolderbank had taken part in such measures or at least given that impression tothe other participants in a spirit of solidarity when confronted with the decision ofthe Greek cement industry to export its surplus production onto the markets ofWestern Europe, a decision perceived as a considerable threat to the stability ofall those markets (see, to that effect, the case-law cited above at paragraph 1353).The lack of evidence of action by Holderbank on that market in relation to thesituation brought about by Calcestruzzi is irrelevant in that regard, because theCommission has established (see paragraphs 3151 to 3163 above) that the collusionto which they acceded at the meetings referred to in paragraph 3273 above was inthe nature of a concerted practice contrary to Article 85(1) of the Treaty in thatit gave rise to action on the market by other undertakings involved in that samecollusion. Moreover, in the absence of proof to the contrary, which it was forHolderbank to adduce, it must be held that Holderbank took account of thatcollusion when determining its conduct on the market (Commission v Anic, citedin paragraph 270 above, paragraph 121, and Hüls v Commission, cited in paragraph155 above, paragraph 162). 3275. The Commission was therefore entitled to find in Article 4(3)(a) of the contesteddecision that Holderbank had participated from 17 June 1986 in the concertedpractices designed to induce Calcestruzzi to cease to be a customer of the Greekproducers, and of Titan in particular. 2.10. Aker and EUROC 3276. Aker and EUROC consider that the mere fact that they were present at severalmeetings of the ETF at which they were then informed of the situation on theItalian market is not sufficient to make them liable for the concerted practices forthe defence of that market. They entered into no undertakings at those meetings,which they attended with perfectly lawful intentions. Moreover, liability on theirpart presupposed that they had taken some action concerning Calcestruzzi. 3277. The Court points out that Aker and EUROC were represented at several of themeetings referred to by the Commission at recital 27, paragraph 3, of the contesteddecision. Thus, they were represented at the meeting of the ETF in Geneva on 19August 1986 (contested decision, recital 25, paragraph 14; document 33.126/18757and Annex 15 to Aker and EUROC's reply to the SO), the meeting of HeadDelegates and representatives of the ETF in Baden-Baden on 9 September 1986(contested decision, recital 25, paragraphs 22 and 23; document 33.126/18857), the meeting of the ETF in Geneva on 21 October 1986 (contested decision, recital 25,paragraph 34; documents 33.126/18758 and 18897), and the meeting in Geneva on11 February 1987 (contested decision, recital 25, paragraph 45; document33.126/18760). 3278. The documents relating to the meetings on 19 August and 21 October 1986 do notshow that at those meetings there was any specific discussion of the situationconcerning the imports by the Ferruzzi group of cement from Greece. 3279. By contrast, at the meeting of Head Delegates and representatives of the ETF inBaden-Baden on 9 September 1986, it was stated that the negotiations between theItalian cement producers and the Ferruzzi group might lead to results and thatTitan might terminate its contracts with that group by the end of 1987. At themeeting on 11 February 1987, the Italian representative told the other participantsthat the Italian cement producers and the Ferruzzi group had reached anagreement to make it possible to avoid the threatened imports of cement by thatgroup, a threat thought to be catastrophic for prices. In addition, he requested theaid of his European colleagues with a view to resolving the problems arising fromthe non-performance of the Calcestruzzi-Titan contract. 3280. In the light of those findings, and in the absence of any evidence produced by Akerand EUROC to show that at those two meetings their representatives openlydistanced themselves from the unlawful measures which were mooted thereconcerning the Ferruzzi situation or that they informed the other participants thatthey were attending the meetings with different objects in mind, the Commissionwas justified in considering that Aker and EUROC had acceded to such measuresor at least that they had given that impression to the other participants in a spiritof solidarity when confronted with the decision of the Greek cement industry toexport its surplus production onto the markets of Western Europe, a decisionperceived as a major threat to all those markets (see, to that effect, the case-lawcited above at paragraph 1353). The lack of evidence of action by those twoundertakings on the market in relation to the situation brought about byCalcestruzzi is irrelevant in that regard, because the Commission has established(see paragraphs 3151 to 3163 above) that the collusion to which they acceded atthe meetings referred to in paragraph 3279 above was in the nature of a concertedpractice contrary to Article 85(1) of the Treaty in that it gave rise to action on themarket by other undertakings involved in that same collusion. Moreover, in theabsence of proof to the contrary, which it was for Aker and EUROC to adduce,it must be held that Aker and EUROC took account of that collusion whendetermining their conduct on the market (Commission v Anic, cited in paragraph270 above, paragraph 121, and Hüls v Commission, cited in paragraph 155 above,paragraph 162). 3281. The Commission was therefore entitled to find in Article 4(3)(a) of the contesteddecision that Aker and EUROC had participated in the concerted practices designed to induce Calcestruzzi to cease to be a customer of the Greek producers,and of Titan in particular. 3282. None the less, since the contested decision does not contain any evidence to showthat Aker and EUROC acceded to those concerted practices before 9 September1986, the date on which they participated in the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden, Article 4(3)(a) must be annulled in sofar as it finds that they participated in the infringement in question before thatdate. 2.11. Cementir 3283. Cementir asserts that it never entered into negotiations with Calcestruzzi toimplement an anti-competitive agreement seeking to prevent imports from Greece,of whose existence and content it was allegedly aware. It adds that it was neverasked to bring any pressure to bear on Calcestruzzi. 3284. The Court points out, however, that, according to the minutes of the meeting ofHead Delegates and representatives of the ETF in Baden-Baden on 9 September1986 (contested decision, recital 25, paragraphs 22 and 28; documents 33.126/18859and 18860), 'several meetings took place between the Italian cement producers andFerruzzi and it appeared that an agreement might be reached concerning theready-mix concrete market. 3285. In its letter sent to its lawyers in London on 2 September 1988 (contested decision,recital 27, paragraph 4; document 33.126/19196), Titan explains that 'on 6February 1987, Calcestruzzi for the first time seem[ed] reluctant to confirmshipments schedule claiming that the situation is in evolution with the local cementindustries. 3286. At the meeting of the ETF on 11 February 1987 and the meeting of the subgroup'Dissuasive Measures on 17 March 1987, it was reported that an agreement hadbeen reached between the Italian cement producers and Ferruzzi, making itpossible to avoid a threat of imports of cement perceived as catastrophic for prices. 3287. According to Italcementi's telex to Titan on 13 May 1987, and the telex fromCalcestruzzi to Titan on 2 June 1987 (see paragraph 3249 above), the suspensionof deliveries of cement agreed between Titan and Calcestruzzi was determined byan agreement concluded by Calcestruzzi with major Italian cement producers,including Cementir. 3288. That bundle of documents shows that Cementir was one of the Italian cementproducers which intervened with the Ferruzzi group in order to induce Calcestruzzito suspend performance of the supply contract that it had concluded with Titan. 3289. In those circumstances, the Commission was entitled to find in Article 4(3)(a) ofthe contested decision that Cementir had participated in the concerted practicesdesigned to induce Calcestruzzi to cease to be a customer of the Greek producers,and of Titan in particular. 3290. However, the contested decision does not contain any evidence from which it canbe concluded that Cementir participated in those concerted practices before 9September 1986, the date of the meeting of Head Delegates and representativesof the ETF in Baden-Baden in whose minutes the first report is made ofnegotiations between the Italian cement producers and the Ferruzzi group. Itfollows that Article 4(3)(a) must be annulled in so far as it finds that Cementirparticipated in the infringement in question before that date. 2.12. Blue Circle 3291. Blue Circle claims that its participation in the concerted practices in question isinferred by the Commission from a Blue Circle internal memorandum dated 4September 1986 (contested decision, recital 27, paragraph 3), in which it noted thatTitan had told it that it was not going to cancel its contract with Calcestruzzi. Thatdocument does not, however, suggest that Blue Circle attempted to bring pressureto bear on Titan to do so. 3292. Nor, claims Blue Circle, can its participation in the abovementioned infringementbe inferred from the mere fact that the dissuasive and persuasive measuresexamined by the ETF had included possible action against Calcestruzzi. The ETFexamined many approaches in order to submit proposals to the decision-makers. 3293. Finally, Blue Circle considers that the Commission could not infer its involvementin the concerted practices in question from the agreements concluded in April 1987between the Italian producers in order to satisfy all Calcestruzzi's cementrequirements (contested decision, recital 27, paragraphs 4 to 11). It acknowledgesthat the ETF was informed of the Italian situation. That information was not,however, very accurate. In any event, the mere receipt of information is insufficientto establish participation in a concerted practice. Blue Circle adds that theabovementioned agreements in April 1987 were strictly local and outside itsknowledge, the evidence of those agreements never having been brought to itsknowledge. 3294. The Court points out that, among the measures to defend the Italian market, theCommission finds that Blue Circle participated only in the concerted practicesdesigned to withdraw Calcestruzzi as a customer from the Greek producers, andfrom Titan in particular (contested decision, Article 4(3)(a)). The Commissiondoes not find that Blue Circle participated in the agreement concerning the contracts and agreements signed on 3 and 15 April 1987, the purpose of which wasto prevent imports by Calcestruzzi of cement from Greece (Article 4(3)(b)). 3295. With regard to Blue Circle's participation in the infringement found in Article4(3)(a) of the contested decision, the Court points out that in its internalmemorandum of 4 September 1986 (contested decision, recital 27, paragraph 3;document 33.126/11026) Blue Circle states: 'In regard to Italy, Titan remainadamant that they will not cancel their contract with Ferruzzi before December1987 at the earliest when it appears they have an escape clause. Those statementsshow that Blue Circle tried in vain to persuade Titan to put an early end to thesupply contract that it had just concluded with the Ferruzzi group. 3296. In any event, Blue Circle attended the meeting of the ETF on 17 June 1986(contested decision, recital 25, paragraph 11; documents 33.126/18756 and 18787),the meeting of Head Delegates and representatives of the ETF in Baden-Badenon 9 September 1986 (contested decision, recital 25, paragraphs 22 and 23;document 33.126/18857), the meeting of the ETF on 11 February 1987 (contesteddecision, recital 25, paragraph 45; document 33.126/18760) and the meeting of thesubgroup 'Defensive Measures of 17 March 1987 (contested decision, recital 25,paragraph 47; document 33.126/4858). 3297. In the light of the findings already made relating to those four meetings (seeparagraph 3226 above) and in the absence of any evidence adduced by Blue Circleto show that at those meetings it openly distanced itself from the unlawful measureswhich were mooted there concerning the Ferruzzi situation, or that it informed theother participants that it was attending the meetings with different objects in mind,the Commission was entitled to take the view that Blue Circle had acceded to suchmeasures or at least had given that impression to the other participants in a spiritof solidarity when confronted with the decision of the Greek cement industry toexport its surplus production onto the markets of Western Europe, a decisionperceived as a major threat to the stability of all those markets (see, to that effect,the case-law cited above at paragraph 1353). 3298. It follows that the Commission was entitled to find in Article 4(3)(a) of thecontested decision that Blue Circle participated from 17 June 1986 in the concertedpractices designed to induce Calcestruzzi to cease to be a customer of Calcestruzzi,and of Titan in particular. 3299. Blue Circle claims not to understand how the Commission could have consideredthat the non-performance of the Calcestruzzi-Titan contract was the result of theconcerted practices described in recital 55, paragraph 1, of the contested decision,but not have charged either Calcestruzzi or Titan with those practices. 3300. However, that argument cannot overturn the above analysis in paragraphs 3150 to3163 and 3295 to 3298 concerning the merits of the Commission's findings as to the existence of concerted practices designed, in an anti-competitive spirit, to induceCalcestruzzi to cease to be a customer of Titan, and of the Commission's findingthat Blue Circle participated in those concerted practices. 3. The duration of the infringement 3301. In Article 4(3)(a) of the contested decision, the Commission finds that theinfringement lasted from 17 June 1986 until 15 March 1987. 3302. The Court has already found that by taking 17 June 1986 as the date on which theinfringement began in the case of CBR, Dyckerhoff, Aalborg, BDZ, Unicem,Uniland, Oficemen, Irish Cement, Aker, EUROC and Cementir, the Commissionwrongly assessed the start of their participation in that infringement. That datemust therefore be fixed at 9 September 1986 (see paragraphs 3205, 3240, 3253,3282 and 3290 above). 3303. Aker, EUROC and Cementir state that they did not attend either of the twomeetings of the ETF on the dates taken to mark the start (17 June 1986) and end(15 March 1987) of the infringement. The duration of their participation in theinfringement must in any event therefore be reduced. 3304. The start of the infringement in question has already been fixed at 9 September1986 in the case of Aker and EUROC (see paragraph 3282 above) and in the caseof Cementir (see paragraph 3290 above). 3305. As regards the end of the infringement, the Court points out, with regard to Akerand EUROC, that they were represented at the meeting of the ETF on 11February 1987. There are therefore grounds for concluding that the concertedpractices in question influenced their conduct on the market until the end of theperiod of infringement fixed by Article 4(3)(a) of the contested decision. It followsthat the Commission was entitled to find that Aker and EUROC participated in theconcerted practices in question until 15 March 1987. 3306. As for Cementir, the Court points out that at the meeting of the subgroup'Defensive Measures on 17 March 1987 a report was made of the negotiationsbetween the Italian cement producers and the Ferruzzi group, negotiations in whichCementir was directly involved, as is clear from the above analysis in paragraphs3284 to 3288. The Commission was therefore entitled to find in Article 4(3)(a) ofthe contested decision that Cementir had participated in the concerted practicesin question until the end of the period of infringement fixed by that provision. 3307. Blue Circle claims that the contested decision does not give reasons for theCommission's conclusions as to the duration of the infringement found in Article4(3)(a). 3308. The Court points out that the date of 17 June 1986 taken as the start of theinfringement corresponds to the first of the meetings referred to in recital 27,paragraph 3, of the contested decision in order to establish that the Ferruzzisituation was discussed at ETF level. 3309. As regards the date of 15 March 1987, taken as the date marking the end of theinfringement, it relates, according to the evidence contained in recital 27,paragraphs 3 and 5, of the contested decision (see documents 33.126/4858 to 4861),to a meeting of the subgroup 'Defensive Measures held on 17 March 1987, andnot 15 March 1987 as erroneously stated by the Commission (see paragraph 3141above), a meeting at which, according to the documents available, a report wasgiven for the last time of the negotiations between the Italian cement producersand the Ferruzzi group. 3310. In those circumstances, Blue Circle, which also attended the meeting of 17 June1986 and the meeting of 17 March 1987, cannot properly allege any lack ofstatement of reasons as to the duration of the infringement. 4. Access to the file 3311. Following the measures of 2 October 1996 and 18 and 19 June 1997 concerningaccess to the file, Ciments Français and Asland submitted documents which, theyallege, could have been useful to them during the administrative procedure in orderto defend themselves against the claim that they participated in the concertedpractices concerning Calcestruzzi. 3312. There is no longer any need to assess whether those observations are well founded,since it has already been found that Article 4(3)(a) of the contested decision mustbe annulled in so far as it finds that those two undertakings participated in theinfringement referred to therein (see paragraphs 3215 and 3263 above). 3313. CBR, Dyckerhoff, Uniland, Oficemen, Holderbank, Aker and EUROC also putforward a series of observations on the basis of the documents which they wereable to consult following those same measures of organisation of procedure. Theyseek to show that by granting them only limited access to the SO and to itsinvestigation file during the administrative procedure the Commission infringedtheir rights of defence when it found that they had committed the infringement, inso far as they had no access to exculpatory documents. 3314. In its observations of 10 February 1997 CBR invokes documents 33.126/2945 to2951, 2954 to 2960, 15990 to 15995, 15997, 12145 to 12166, 12180 to 12188, 12204to 12217, 12231 to 12338, 12341, 16235 to 16282, 15731 to 15739, 2917, 2918, 2948and 2949, none of which shows that it played any role whatsoever in therelationships between Italian cement producers and Calcestruzzi. It observes that, in the chapters of the SO concerning Italy and (points 35 and 70), there is noreference to it among the cement producers who signed agreements withCalcestruzzi in breach of Article 85(1) of the Treaty. 3315. It must be observed that, with regard to the measures to defend the Italian market,the Commission finds that CBR participated only in the concerted practicesdesigned to induce Calcestruzzi to cease being a customer of the Greek producers,and of Titan in particular (contested decision, Article 4(3)(a)). It does not find thatCBR participated in the agreement relating to the contracts and agreements signedon 3 and 15 April 1987, the purpose of which was to avoid imports by Calcestruzziof cement from Greece (contested decision, Article 4(3)(b)). Therefore, the onlypoint to be assessed is whether CBR's comments set out in the previous paragraphcould have had even a small chance of altering the outcome of the administrativeprocedure as regards the infringement which it was actually held to havecommitted. 3316. In point of fact, those comments would not have prevented the Commission fromfinding that CBR had participated in the meeting of Head Delegates andrepresentatives of the ETF in Baden-Baden on 9 September 1986, at whichmention was made of the negotiations under way concerning the Calcestruzziproblem. Therefore, they would not have provided grounds for dismissing CBR'sresponsibility in the concerted practices in question. 3317. In its observations of 5 January 1998, Dyckerhoff cites several documents which,in its opinion, contradict the evidence put forward in the contested decisionconcerning pressure brought to bear on Calcestruzzi. 3318. It cites, first, the letter sent by Titan on 2 September 1988 to its lawyers in London(documents 33.126/19195 to 19197). 3319. On that point, without there being any need to consider whether the observationsput forward by Dyckerhoff on the basis of that letter are of any relevance, it issufficient to observe that the letter was expressly mentioned in point 19(d) of theSO, in the statement of facts concerning the measures to defend the Italian market. 3320. The first two pages of that letter (documents 33.126/19195 and 19196) weremoreover to be found in the Box (see paragraph 95 above). Dyckerhoff couldtherefore have used them in support of its reply to the SO. In those circumstances,it cannot now invoke them in order to establish that there was a breach of its rightsof defence during the administrative procedure. 3321. The third page of that letter (document 33.126/19197) contains only informationconcerning the address to which the reply to that letter was to be sent and the signature of the person who wrote the letter. It would therefore have been quiteuseless to Dyckerhoff's defence during the administrative procedure. 3322. Dyckerhoff then refers to Calcestruzzi's reply of 22 March 1990 to a request by theCommission for information (documents 33.126/16316 to 16330). Calcestruzziexplains in it that the termination of the contract that it had concluded with Titanin April 1986 was justified because it had not obtained from the Italian authoritiesthe authorisation necessary in order to use its harbour installations for the purposesof performing that contract. Dyckerhoff claims that the documents which constitutethat reply would have made it possible for it to refute the explanation put forwardby the Commission in recitals 27 and 55 of the contested decision concerning thenon-performance of the Calcestruzzi-Titan contract. 3323. The Court points out, however, that any comments which Dyckerhoff might havebeen able to submit during the administrative procedure on the basis of thedocuments which it now puts forward would not have made it possible to disregardthe bundle of documents referred to in recital 27, paragraphs 3 to 5, of thecontested decision, on the basis of which the Commission correctly found in Article4(3)(a) of the contested decision that there were concerted practices between theItalian producers Unicem, Italcementi and Cementir and a number of Europeancement undertakings and associations, including Dyckerhoff, practices which soughtin an anti-competitive spirit to induce Calcestruzzi to cease to be a customer of theGreek producers, and of Titan in particular. 3324. Finally, Dyckerhoff points out in its observations of 7 February 1997 that it isapparent from the Italian file that Dyckerhoff played no role in the measuresconcerning Calcestruzzi, since the latter was linked to the Italian producers throughGU SIPAC, of which Dyckerhoff was not part (documents 33.126/15990 to 15997,12145 to 12166, 12180 to 12188, 12204 to 12217 and 12231 to 12341). 3325. Nevertheless, any comments which Dyckerhoff might have put forward during theprocedure on the basis of the documents to which it refers would not haveprevented the Commission from finding that it had participated in the meeting ofHead Delegates and representatives of the ETF in Baden-Baden on 9 September1986 at which a report was made of initiatives under way in connection with theFerruzzi situation. Therefore, they would not have provided grounds for dismissingDyckerhoff's responsibility in the concerted practices referred to in Article 4(3)(a)of the contested decision. 3326. Uniland and Oficemen maintain, in their observations of 10 February 1997 and 3March 1998, that in the documents to which they had access following the measuresof organisation of procedure referred to in paragraph 3311 above there is noevidence of their participation in the concerted practices found in Article 4(3)(a)of the contested decision. On the contrary, several documents show that themeasures to defend the Italian market against imports from Greece did not arise out of a multilateral concerted practice in which they participated but out ofunilateral reactions by the Italian producers. 3327. In their observations of 10 February 1997, they refer to an Italcementi letter of 26October 1987 (document 33.126/2950) and the report of a meeting on 12 January1988 of the Italian cement producers at Cementir (document 33.126/19872). Thosetwo documents contain no allusion to any direct or indirect participationwhatsoever by them in the measures taken by the Italian market to counter theimports from Greece. On the contrary, they confirm the purely local dimension ofthose measures. 3328. In their observations of 3 March 1998, Uniland and Oficemen rely on an extractfrom Unicem's replies to the Commission in October 1989 concerning the activitiesof the ETF (documents 33.126/12060 to 12065, especially 12063), and also on theletter in which Calcestruzzi explains to the Commission that the falling off in itsimports from Greece could be explained by the sole fact that the ItalianGovernment had not issued it with the necessary authorisations for the constructionof a quay for the unloading of cement (documents 33.126/16317 to 16321, especially16319, mentioned at paragraph 3322 above). They also refer to the letter sent byTitan on 2 September 1988 to its lawyers in London (documents 33.126/19195 to19197) and to documents 33.126/19188 to 19193 and 19198 to 19200. Finally, theyrefer once again to the minutes of the meeting of the Italian cement producers atCementir in Rome on 12 January 1988 (documents 33.126/19871 to 19873). 3329. The Court points out that, for the reasons set out in paragraphs 3319 to 3321above, Titan's letter of 2 September 1988 to its lawyers in London cannot be reliedon to any advantage by Uniland and Oficemen in order to prove infringement oftheir rights of defence during the administrative procedure. 3330. In any event, the comments which those two applicants might have been able toput forward during the administrative procedure on the basis of the variousdocuments identified at paragraphs 3327 and 3328 above could not have prevailedover the documents referred to in recital 27, paragraphs 3 to 5, of the contesteddecision, on the basis of which the Commission correctly found in Article 4(3)(a)of the contested decision that there were concerted practices at European level thatwere designed, in an anti-competitive spirit, to induce Calcestruzzi to cease to bea customer of the Greek producers, and of Titan in particular. 3331. Nor could those observations have prevented the Commission from finding, first,that Uniland had attended the meeting of Head Delegates and representatives ofthe ETF in Baden-Baden on 9 September 1986, at which mention was made of thenegotiations under way concerning the Ferruzzi situation and, second, thatOficemen had been represented at that meeting and had attended the meeting ofthe subgroup 'Defensive Measures on 17 March 1987, at which the agreementbetween the Italian cement producers and the Ferruzzi group was mentioned. Therefore, they would not have provided grounds for dismissing Uniland andOficemen's responsibility in the concerted practices found to exist in Article 4(3)(a)of the contested decision. 3332. In their observations of 3 March 1998, Uniland and Oficemen further cite a seriesof documents relating to contracts concluded between the Greek cement producersand Italian undertakings (documents 33.126/19781 to 19786, 19793 to 19798, 19802to 19812, 20140 to 20147, 20148 to 20156, 20157 to 20164, 20166 and 20167), andto contracts concluded between Greek producers with a view to supplies to bemade in Italy (documents 33.126/20132 to 20137 and 20259 to 20267). They alsorefer to the report on Titan's balance sheet for the year 1988 (document33.126/19432), which shows that Titan's presence on the Italian market grew quitespectacularly in that year. Those various documents are at variance with theassessments made by the Commission in recital 55 of the contested decision. 3333. However, those observations by the applicants could not have prevailed over thedocuments referred to in recital 27, paragraphs 3 to 5, on the basis of which theCommission correctly found that there were concerted practices designed, in ananti-competitive spirit, to induce Calcestruzzi to cease to be a customer of Titan,a finding which was sufficient to support the conclusion that those concertedpractices were contrary to Article 85(1) of the Treaty (see the case-law cited aboveat paragraph 837). 3334. In its observations of 8 December 1997, Holderbank claims, on the basis of theletter sent by Titan on 2 September 1988 to its lawyers in London (documents33.126/19195 to 19197), that Calcestruzzi's non-performance of its contractconcluded with Titan for the supply of cement was the result of an agreementbetween the Ferruzzi-Calcestruzzi group and the Italian cement producers alone,and not the result of any overall concerted practice in which Holderbank took part. 3335. However, for the reasons set out in paragraphs 3319 to 3321 above, Holderbankcannot now rely on that letter to show the existence of a breach of its rights ofdefence during the administrative procedure. 3336. Holderbank also refers to the note concerning the meeting of 12 January 1988 ofthe Italian cement producers at Cementir (see paragraph 3328 above). That noteshows how the Italian market was sealed off as regards imports of cement, in thisinstance imports from Yugoslavia. It also mentions the solidarity which the Italiancement producers were requested to demonstrate in order to confront thoseimports. Finally the note refers to the necessity for finding an agreement with theGreek producers in order to prompt them to reduce their exports, on pain ofunleashing a price war. Holderbank considers that, if that document had beenavailable during the administrative procedure, it would have been able to show thatthe sealing off of the Italian market was due, not to the measures adopted by theETF, but simply to the actions of the local producers. 3337. The Court finds, however, that those observations could not have prevailed overthe bundle of documents referred to in recital 27, paragraphs 3 to 5, of thecontested decision, on the basis of which the Commission correctly found in Article4(3)(a) of the contested decision that there were concerted practices between theItalian cement producers Italcementi, Unicem and Cementir and a series ofparticipants in the ETF, including Holderbank, practices which designed, in an anti-competitive spirit, to induce Calcestruzzi to cease to be a customer of the Greekproducers, and of Titan in particular. 3338. In their observations of 10 February 1997, Aker and EUROC refer to variousdocuments mentioned at paragraph 3324 above. These documents, they claim,would have made it possible for them to show that the contracts concluded in April1987 between Cementir and Italcementi, on the one hand, and Calcestruzzi, on theother hand, were the result of negotiations carried out at local level between themajor Italian cement producers. None of those documents supports theCommission's argument that those contracts were the tool for implementing a planof action that had been debated and approved at the meetings of the ETF at whichAker and EUROC were present. They refer also to Italcementi's notes of 15October 1986 (documents 33.126/2945 to 2948), 26 October 1987 (documents33.126/2949 to 2951) and 13 November 1987 (documents 33.126/2954 to 2960),which show that 'the Greek problem was dealt with at the time on a purelybilateral basis between the major Italian cement producers and their Greekcounterparts. They refer in particular to the following extract from the Italcementinote of 13 November 1987 which, as translated by them, states: 'We must wonderwhom to contact, how to contact the Greeks and to propose a truly viableagreement which should not last more than two years, with the intentionsubsequently of managing the Greek cement industry better, with the Europeanproducers, either by direct participation in capital, or by an indirect presence. 3339. However, the observations that Aker and EUROC might have made during theadministrative procedure on the basis of the various documents mentioned in theprevious paragraph could not have prevailed over the bundle of documentsreferred to in recital 27, paragraphs 3 to 5, of the contested decision, on the basisof which the Commission correctly found in Article 4(3)(a) of the decision thatthere were concerted practices at European level, which were designed, in anti-competitive spirit, to induce Calcestruzzi to cease to be a customer of the Greekproducers, and of Titan in particular. Nor could those observations have preventedthe Commission from finding that Aker and EUROC had been represented at themeeting of Head Delegates and representatives of the ETF in Baden-Baden on 9September 1986, at which mention was made of the negotiations under wayconcerning the Ferruzzi situation, and at the meeting of the ETF of 11 February1987, at which it was stated that an agreement had been reached between theItalian cement producers and the Ferruzzi group and that that agreement hadmade it possible to avoid the threat of imports of cement by that group, a threatconsidered catastrophic for prices. Those comments would not therefore have provided grounds for dismissing the responsibility of those two applicants in theinfringement found at Article 4(3)(a) of the contested decision. 3340. In their observations of 29 December 1997, Aker and EUROC refer to a reportof a meeting held on 13 March 1989 between Italian and Yugoslav cementproducers (documents 33.126/16002 to 16006). To their mind, that documentwould have supported their argument that the contracts relating to Calcestruzziwere a purely local matter. 3341. However, the document in question shows at most that, nearly two years after theperiod of the infringement found in Article 4(3)(a) of the contested decision,bilateral negotiations were entered into between the Italian and Yugoslav markets,with a view to restricting imports from Yugoslavia to Italy. Any observations thatAker and EUROC could have put forward on the basis of that document wouldtherefore quite obviously not have altered the findings of fact, referred to inparagraph 3339 above, concerning the concerted practices at European level at thetime when the Calcestruzzi problem arose. 3342. In conclusion, the comments by CBR, Dyckerhoff, Uniland, Oficemen, Holderbank,Aker and EUROC would not have had even a small chance of altering theoutcome of the administrative procedure. Those applicants have not thereforeshown in that regard that there was any breach of their rights of defence during theadministrative procedure. B  Agreement concerning the contracts and agreements signed in April 1987 withCalcestruzzi (contested decision, Article 4(3)(b)) 3343. According to Article 4(3)(b) of the contested decision, Italcementi, Unicem andCementir 'infringed the provisions of Article 85(1) of the EC Treaty from 3 April1987 to 3 April 1992 by participating in an agreement relating to the contracts andagreements signed on 3 and 15 April 1987 having as their aim the prevention ofimports of Greek cement by Calcestruzzi. 3344. The three applicants in question put forward a line of argument which basicallyseeks the annulment of that provision. In addition, Italcementi and Cementir allegethat the Commission, when finding the infringement in question, infringed theirrights of defence by failing to grant them during the administrative procedureaccess to the whole of the SO and its investigation file, thus depriving them ofalleged exculpatory evidence. 1. Existence of the infringement 3345. In recital 27 of the contested decision, the Commission after observing (paragraph5) that 'the agreement between the [Italian] cement producers and Ferruzzi hadbeen referred to by the Italian representative at the meeting of the ETF on 11February 1987 and at the meeting of the subgroup 'Dissuasive Measures on 17March 1987 (see paragraph 3141 above), finds (paragraph 6) that that agreementwas concluded the following April: 'On 3 and 15 April 1987 the Italian cement producers Italcementi, Unicem,Cementir and Calcestruzzi signed agreements and contracts on the supply ofcement and on cooperation with one another (documents 33.126/12145 to 12342). Through the agreements and contracts, Italcementi, Unicem and Cementir jointlyundertook to meet all the cement requirements of the Calcestruzzi group and toapply the price reduction specified; for its part, Calcestruzzi undertook to channelhalf of the price reductions to a joint subsidiary of the four contractors, which wasto invest the sums in ready-mix concrete companies or related activities, and toobtain at least 80% of its cement requirements from Italcementi, Unicem andCementir or from companies designated by them; the three cement producersreserved the right to terminate the agreements and contracts if Calcestruzzi'spurchases from them were less than 95% of its requirements. 3346. The Commission then refers (recital 27, paragraphs 7 to 10) to a series of telexesexchanged in May and June 1987 between Calcestruzzi and Titan, on the one hand,and Italcementi and Titan, on the other. Those telexes show that, following theagreement reached with the three Italian cement producers, Calcestruzzi suspendedperformance of the contract which it had concluded in April 1986 with Titan. Theyalso show that there were meetings between the Italian producers Italcementi,Unicem and Cementir, on the one hand, and Titan, on the other hand, in order tofind a solution to the problems linked to the non-performance of that contract. 3347. In recital 55, paragraph 2, the Commission states: 'The contracts and agreements signed on 3 and 15 April 1987 (see paragraph 6 ofrecital 27) represent the implementation of an agreement between Italcementi,Unicem and Cementir that is caught by Article 85(1) and, consequently, aninfringement as from the date they were signed and throughout their duration, i.e.until 3 April 1992. As may be seen from the minutes of 11 February 1987 and 15March 1987, the purpose of the agreement was to avoid a threat of the import of1.5 million tonnes of Greek cement by Calcestruzzi in ten or so ports, which wouldhave been catastrophic for prices (see paragraph 5 of recital 27). 3348. Unicem, Italcementi and Cementir put forward in essence nine arguments denyingthe alleged infringement. 3349. First, they deny that the agreements signed with Calcestruzzi in April 1987 weremotivated by any anti-competitive purpose. 3350. Unicem claims that those agreements did not have any connection with the ETF. The fact that, in connection with those agreements, it adopted a line of conductthat was quite independent of any non-Italian producer must be the best proof ofthat. It adds that the agreements in question had a lawful purpose. The relationsbetween the Italian cement producers and Calcestruzzi are explicable oncommercial grounds, which had nothing to do with any international collusion. Calcestruzzi, which was the largest Italian customer on the cement market, wieldedconsiderable purchasing power. The agreements in April 1987 must be consideredas the realisation of Calcestruzzi's long-term objective for obtaining a 15% discounton all its purchases of cement in Italy. The price concessions made by Italcementi,Cementir and Unicem were the result of lawful competition. In addition, the offermade by the three Italian producers presented numerous advantages forCalcestruzzi compared to the contract which it had concluded with Titan in April1986: the standard of service, the physical closeness of the suppliers, the lowertransport costs, greater flexibility in the performance of the contract, the availabilityof technical and commercial assistance by the Italian suppliers. The deliverycontracts were signed jointly by Italcementi, Cementir and Unicem, becauseCalcestruzzi's considerable supply requirements could not have been met by oneproducer alone. 3351. Italcementi claims that the above agreements constituted a competitive responseby the Italian producers to imports onto their market of cement from Greece. Inits view, the object of an agreement must be defined according to its sense and thepurpose which it pursues, as objectively identified in the light of the economiccontext in which that agreement is to be applied, and not according to anysubjective intention of the parties. In this instance, the Commission has not shownthat there was any such objective to restrict competition. 3352. Cementir maintains that it took the initiative, with Italcementi and Unicem, tonegotiate with Calcestruzzi in order to define the best organisation possible of theircommon commercial relationships. It points to the commercial importance of thosenegotiations, Calcestruzzi representing an annual demand of approximately2 200 000 tonnes of cement. That was the background to the setting up of theItalian company SIPAC, a joint subsidiary of Italcementi, Unicem and Cementir. The object of that company was not therefore to prevent the performance of theobligations which Calcestruzzi had contracted vis-à-vis Titan. Cementir argues thatthere is an explanation for its actions in this matter other than unlawful collusion,namely, its wish to conclude a profitable contract. Its attitude was comparable tothat adopted by a number of other Italian producers which took part in supplycontracts with Calcestruzzi, but which were not fined in the contested decision. 3353. The Court points out that none of those three applicants denies that the conclusionin April 1987 of the agreements between them and Calcestruzzi was the object ofthe 'agreement between the [Italian] cement producers and Ferruzzi which wasreferred to at the meeting of the ETF on 11 February 1987 (contested decision, recital 27, paragraph 5; document 33.126/4912) and at the meeting of the subgroup'Defensive Measures on 17 March 1987 (same paragraph; document 33.126/4860). 3354. At the first of those two meetings, the Italian representative stated that thatagreement allowed 'the threat to be removed of imports of 1.5 million tonnes by[the Ferruzzi group] in a dozen ports, which would have been catastrophic forprices (contested decision, recital 27, paragraph 5; document 33.126/4912). Headded: 'Ferruzzi will in return for its compliance receive the tidy sum of US$ 15million a year for [the] five years [of the agreement and] will have to use part ofthe money to purchase BPE [ready-mix concrete] companies or holdings in BPEcompanies so as to put the coast under lock and key. 3355. Nor do the three applicants deny that the agreement between the Italian cementproducers and Calcestruzzi referred to in the telexes mentioned by the Commissionin recital 27, paragraphs 7 and 10, of the contested decision corresponds to theagreement relating to the contracts and agreements signed in April 1987. According to that telex, that agreement led to the suspension of the deliveries ofcement which had been agreed between Calcestruzzi and Titan. 3356. On the basis of that bundle of documents, the Commission was entitled to find thatthe contracts and agreements signed in April 1987 between Italcementi, Unicemand Cementir, on the one hand, and Calcestruzzi, on the other hand, constitutedthe implementation of an agreement between Italcementi, Unicem and Cementirdesigned to prevent, in an anti-competitive spirit, imports by Calcestruzzi of cementfrom Greece. The Commission was therefore entitled to find in Article 4(3)(b) ofthe contested decision that that agreement was contrary to Article 85(1) of theTreaty. 3357. The argument, put forward by Cementir, that the other Italian cement producerswhich allegedly took part in those agreements with Calcestruzzi were not referredto in the contested decision cannot overturn the analysis in paragraphs 3353 to3356 above as to the merits of the Commission's finding concerning the anti-competitive object pursued by the agreement relating to those contracts andagreements, or the responsibility in that anti-competitive agreement of Cementir,which acknowledges having taken part in those agreements. 3358. Second, Italcementi claims that the meetings between the Italian cement producersand Titan described in recital 27, paragraphs 7 to 11, of the contested decisionwere intended purely to avoid worsening the tensions then existing on the Italianmarket, by demonstrating the lawfulness of the conclusion of new supply contractswith Calcestruzzi. The Italian producers took part in those meetings without theleast intention of obtaining results that were unlawful under Article 85(1) of theTreaty. 3359. For its part, Cementir maintains that the meeting held in Luxembourg on 27 May1987 between the Italian producers and Titan, a meeting referred to in recital 27,paragraphs 9 to 11, of the contested decision, was part of an attempt to settle adispute arising out of the commercial negotiations between Italcementi, Unicemand Cementir, on the one hand, and Calcestruzzi, on the other, for the solepurpose of preventing that dispute from damaging the proper operation of thesupply agreement concluded by Calcestruzzi with Titan. It adds that it participatedin that meeting at the request of Calcestruzzi. 3360. However, it is apparent from the bundle of documents referred to in recital 27,paragraphs 7 to 10, of the contested decision (documents 33.126/19205, 19204,19201 and 19218) that a meeting was held in Luxembourg at the end of May 1987between Italcementi, Unicem and Cementir, on the one hand, and Titan, on theother, for the purpose, inter alia, of finding a solution to the problems connectedto the 'suspension of deliveries provided in the contract concluded at the time[April 1986] between Calcestruzzi and Titan (contested decision, recital 27,paragraph 10; document 33.126/19201), a suspension which had 'been determinedby an agreement reached with the major Italian cement producers (Italcementi Unicem  Cementir) (contested decision, recital 27, paragraph 10; document33.126/19218). 3361. In any event, Italcementi and Cementir's line of argument cannot prevail over theextract from the report of the meeting of the ETF on 11 February 1987 (seeparagraph 3354 above), on the basis of which the Commission correctly concludedthat the three Italian cement producers, Italcementi, Unicem and Cementir, had,by means of the agreement relating to the contracts and agreements signed withCalcestruzzi in April 1987, intended to prevent the threat of imports by theFerruzzi group of 1.5 million tonnes of cement from Greece into a dozen ports,which would have been catastrophic for prices. 3362. Third, Italcementi points out that at the time imports into Italy of cement fromGreece were being made at less than actual cost, so breaching the principle offairness which must govern intra-Community trade. Cementir claims that, from theend of 1985, the Greek producers made massive exports of cement and clinker,notably to Italy, thanks to very considerable State aid. 3363. Those arguments must, however, be dismissed, for the reasons set out above inparagraphs 2557 and 2558. 3364. Fourth, Unicem, Italcementi and Cementir claim that the contracts and agreementsof 1987 did not prevent Calcestruzzi from performing its contractual obligations toTitan. The deliveries agreed upon between Calcestruzzi and Titan in their contractof April 1986 concerned, for the first year, only 75 000 tonnes, that is to say aquantity clearly lower than Calcestruzzi's real needs, which were estimated at some2 200 000 tonnes a year. No minimum purchase obligation was provided for the following years. In addition, the deliveries made by Titan did not meet the samequality requirements as Italian cement. 3365. Italcementi adds that, at the same time, the supply contract concluded byCalcestruzzi with Yugoslav cement producers was performed in full. The clauseallowing the Italian producers to terminate the contract if Calcestruzzi did notobtain 95% of its needs from them was never applied. Calcestruzzi thereforebreached its contract with Titan quite independently, for financial reasons,exploiting the conditions offered by the Greek producer in order to negotiate theconclusion of contracts with its usual suppliers. It therefore demands theopportunity to inspect the documents in the Commission's file concerning theexplanations given by Calcestruzzi during the administrative procedure as to whyit breached its contract with Titan. 3366. Unicem further points out that Calcestruzzi's commitment to the three Italiancement producers was for 80% of its supply needs. Those needs being estimatedat around 2 200 000 tonnes a year, Calcestruzzi therefore had a residual importmargin of 400 000 tonnes, that is to say 325 000 tonnes more than the quantitiessupplied by Titan. Calcestruzzi therefore wrongly claimed in its telex of 13 May1987 to Titan that it could not 'import cement in Italy as per purchase contractalready signed as consequence of an agreement [it had] reached with Italian cementproducers (contested decision, recital 27, paragraph 7; document 33.126/19205). Calcestruzzi simply considered it more advantageous to obtain its supplies fromItalian rather than Greek producers. 3367. It must however be stated that the applicants' argument cannot prevail against thebundle of documents referred to in recital 27, paragraphs 5 to 10, of the contesteddecision, from which it is clear that Calcestruzzi suspended the deliveries providedfor in the contract which it had signed with Titan in April 1986, not on the basis ofan independent decision prompted by commercial reasons, but as a result of theagreement concluded in April 1987 with Italcementi, Unicem and Cementir, which,motivated by an anti-competitive objective, had undertaken to pay Ferruzzi USD15 million a year for the five years of that agreement in recognition of itscooperation in that matter. 3368. Italcementi's request to inspect certain documents in the Commission's file (seeparagraph 3365 above) was granted when the measures of organisation ofprocedure referred to above at paragraphs 164 and 168 were adopted. Theyenabled Italcementi to inspect, within the bounds set by the need to protectbusiness secrets, the documents in the Commission's file containing the explanationsput forward by Calcestruzzi to justify the breach of its April 1986 contract withTitan. 3369. Fifth, Italcementi asserts that Calcestruzzi's entering into supply contracts jointlywith Unicem, Cementir and itself was the result of Calcestruzzi's own requirements, because it was anxious to ensure a continuous supply. The conclusion of contractswith Calcestruzzi could not therefore be considered to be the implementation ofa pre-existing agreement between the Italian cement producers. 3370. However, Italcementi's claim cannot prevail over the documents referred to inrecital 27, paragraphs 5 and 6, of the contested decision, on the basis of which theCommission found that the agreements of April 1987 between Italcementi, Unicemand Cementir, on the one hand, and Calcestruzzi, on the other, was the result of'the agreements between the [Italian] cement producers and Ferruzzi, as notedby Italcementi itself at the meeting of the ETF on 11 February 1987 (see thehandwritten report of that meeting; contested decision, recital 27, paragraph 5;document 33.126/4912). According to Italcementi's own statements at that meeting,that agreement by the Italian cement producers was intended to make it possibleto avoid the threat of imports of cement by Ferruzzi, which was perceived ascatastrophic for prices. The Commission was therefore entitled to consider(contested decision, recital 55, paragraph 2) that 'the contracts and agreementssigned on 3 and 15 April 1987 ... represent[ed] the implementation of an agreementbetween Italcementi, Unicem and Cementir that is caught by Article 85(1) .... 3371. Sixth, Unicem, Italcementi and Cementir allege, with supporting statistics, that thecontracts concluded in April 1987 with Calcestruzzi had no effect restrictingcompetition. Those contracts did not prevent Titan from carrying on exporting toItaly. The Greek producers even appreciably increased their presence on theItalian market at that time despite the considerable disadvantage caused bytransport costs. Unicem states that Calcestruzzi continued to look for new importopportunities in order to satisfy its cement requirements, in particular by acquiringa Greek cement works. 3372. Nevertheless, it is apparent from the bundle of documents referred to in recital 27,paragraphs 4 to 11, of the contested decision that the agreement relating to thecontracts and agreements of 1987 referred to above led Calcestruzzi to suspend thedeliveries of cement which it had agreed upon in April 1986 with Titan, whichmade it possible to avoid the threatened import of 1.5 million tonnes of cement,regarded as catastrophic for prices. The agreement in question therefore did havethe effect of restricting competition. 3373. In any event, the Commission considered that agreement to be an infringementsolely because of its anti-competitive object and that object has been established(see paragraphs 3353 to 3356 above). Such proof was sufficient for the finding inArticle 4(3)(b) of the contested decision that that agreement was contrary toArticle 85(1) of the Treaty (see, to that effect, the case-law cited at paragraph 837above). 3374. Seventh, Italcementi states that Calcestruzzi's requirements represented only 6%of Italian cement production. Since the contracts of April 1987 related to 80% of those requirements, they concerned scarcely 5% of Italian demand for cement. Those facts should give rise to a considerable qualification as to the actual effectof the conclusion of those contracts in terms of penetration of the Italian marketby cement from Greece. 3375. Cementir considers that Calcestruzzi's demand amounted to 5% of total demandon the Italian market. Any restrictive effects of the agreements concluded betweenthe Italian producers and Calcestruzzi would therefore have had no effect on 95%of the Italian market. 3376. In this connection, it should be borne in mind that, in prohibiting agreements whichhave as their object or effect the restriction of competition and which are likely toaffect trade between Member States, Article 85(1) of the Treaty does not requirethat the agreement in question should have actually affected such trade, which isdifficult to prove to a sufficient legal standard in most cases, but requires it to beestablished that the agreement was capable of having such an effect. The conditionthat there be an effect on trade between Member States is therefore fulfilled whereit is possible to foresee with a sufficient degree of probability, on the basis of a setof factors of law or of fact, that the agreement or practice in question may have aninfluence, direct or indirect, actual or potential, on the pattern of trade betweenMember States (see, to that effect, the case-law cited above at paragraph 1986). 3377. In this instance, the agreement referred to in Article 4(3)(b) of the contesteddecision involved 'the three [major] Italian producers (Italcementi  Unicem Cementir) (see Calcestruzzi's telex of 2 June 1987 to Titan; contested decision,recital 27, paragraph 10; document 33.126/19218). Its purpose was to induceCalcestruzzi, the main Italian producer of ready-mix concrete (contested decision,recital 27, paragraph 2), to abandon the import of 1.5 million tonnes of cementwhich would have caused a collapse in prices. 3378. In those circumstances, the Commission was justified in taking the view (recital 57)that that agreement was by its nature liable to have an appreciable effect on thefree play of competition within the Community and to affect trade betweenMember States. 3379. Eighth, Italcementi maintains that it was not necessary to notify the contractsconcluded by Calcestruzzi with the Italian producers under Article 4(1) ofRegulation No 17, since they satisfied the conditions laid down in Article 4(2)(1)of that regulation. In those circumstances, the Commission could not impose a fineon Italcementi without having checked of its own motion whether or not theconditions for exemption under Article 85(3) of the Treaty had been satisfied. Onthis point, Italcementi refers to the judgments of the Court of Justice in Case 43/69Bilger [1970] ECR 127, paragraphs 5 and 6, Case 63/75 Fonderies Roubaix [1976]ECR 111, paragraphs 7 and 8, and Stichting Sigarettenindustrie and Others vCommission, cited in paragraph 1088 above, paragraph 75. 3380. It should be borne in mind that, according to Article 4(1) of Regulation No 17,agreements, decisions and concerted practices which come into existence after theentry into force of that regulation and in respect of which the parties seekapplication of Article 85(3) of the Treaty must be notified to the Commission,failing which no decision in application of Article 85(3) may be taken. However,Article 4(2)(1) of that regulation exempts from notification agreements where theonly parties thereto are undertakings from one Member State and where theagreements do not relate either to imports or exports between Member States. 3381. The two conditions thus laid down for exemption from notification are cumulative. If either of those conditions is not satisfied, the agreement cannot qualify forexemption under Article 85(3) of the Treaty unless it has been notified inaccordance with Article 4(1) of that regulation (see IAZ and Others v Commission,cited at paragraph 1320 above, paragraph 33). 3382. In addition, the second condition must be interpreted with reference to thestructure of Article 4 of Regulation No 17 and its aims of simplifying administrativeprocedure, which it pursues by not requiring undertakings to notify agreementswhich, whilst they may be covered by Article 85(1), appear in general, by reasonof their special characteristics, to be less harmful from the point of view of theobjectives of that provision (see Fonderies Roubaix, cited above at paragraph 3379,paragraph 6, and IAZ v Commission, cited above at paragraph 1320, paragraph 34). 3383. In this instance, the agreement found to exist in Article 4(3)(b) of the contesteddecision does not satisfy the second condition. It was intended (see paragraphs3353 to 3356 above) to prevent Calcestruzzi, the principal Italian producer ofready-mix concrete, from importing 1.5 million tonnes of cement and to prevent thecollapse of prices as a result of those imports. The agreement therefore related toimports to an extent which cannot be considered harmless. 3384. In consequence, the agreement could not qualify for the exemption fromnotification provided for in Article 4(3) of Regulation No 17. Failing notification,it could not therefore qualify for exemption under Article 85(3) of the Treaty. 3385. Ninth, Cementir points out that the Italian competition authority, to which theCommission had sent its decision not to take action against the national agreementsand concerted practices, carried out investigations of the Italian undertakingsconcerned and sent them an SO. It claims that the Commission, by maintaining inthe contested decision the claim based on the Calcestruzzi contracts, breached theprinciple that no one may be held liable twice on the same facts, at national andCommunity level. 3386. That argument must be rejected. As the Commission correctly points out in itsrejoinder in Case T-87/95, the decision of the Italian competition authority related to the supply contracts and cooperation agreements signed between Calcestruzziand the Italian cement producers (SIPAC Agreements) as such (Decision No 3671(I.123) of 6 March 1996 of the Italian Competition and Market Authority,Bollettino of 25 March 1996, pp. 7 to 47). By contrast, the contested decisionconcerns the agreement concluded between the three Italian cement producersconcerning those contracts and agreements, inasmuch as that agreement sought toprevent Calcestruzzi importing cement from Greece. 2. Access to the file 3387. Italcementi and Cementir put forward a series of observations on the basis ofdocuments which they were able to inspect as a result of the measures oforganisation of procedure (referred to in paragraphs 164 and 168 above). Theyseek to show that, by giving them only limited access to the SO and to itsinvestigation file during the administrative procedure, the Commission breachedtheir rights of defence in finding the infringement alleged in Article 4(3)(b) of thecontested decision, in so far as they did not have access to exculpatory evidence. 3388. In its observations of 10 February 1997, Italcementi quotes the following extractfrom the minutes of the meeting of Heracles' board of directors on 23 July 1986(documents 33.126/19880): 'That agreement [the Calcestruzzi-Titan Agreement of30 April 1986] ... does not contain any exclusive dealing clause inasmuch as theItalians have undertaken [to buy] 70-500 000 tonnes a year, which allows them toobtain supplies from any other producer. Italcementi considers that documentwould have been useful to it during the administrative procedure in order to pointout the arbitrariness of the connection established by the Commission in the SO,and then in the contested decision, between the signing in April 1987 of five-yearsupply contracts between Calcestruzzi and the three Italian cement producersItalcementi, Unicem and Cementir, and the concern to prevent Calcestruzzi fromimporting cement from Greece. 3389. In its observations of 26 November 1997, Italcementi refers to a series of contractsfor the supply of cement and clinker from Greece to Italian customers, and Titan'sbalance sheet for the year 1989 (documents 33.126/20140 to 20147, 20148 to 20156,20157 to 20167 and 19433 (pp. 22 and 23)). Those documents go to show that,when the three Italian cement producers concluded the supply contracts withCalcestruzzi, imports from Greece, in particular Titan's imports, were flooding theItalian market. They thus contradict the Commission's assertions that the Italianmarket had been closed to Greek cement producers. In addition, they prove thetotal absence of any connection between those contracts and the actions taken bythe ETF to confront the Greek imports. 3390. Cementir claims, in its observations of 10 February 1997, that the minutes of themeeting of Heracles' board of directors on 23 July 1986 (documents 33.126/19878to 19880) show, first, that the Greek producers concluded joint supply contracts inItaly and, second, that the contract concluded by Calcestruzzi with Titan in April1986 did not prevent the other Greek producers from exporting to Italy. In itsview, that document also confirms that Cementir's argument is well founded,Cementir having always maintained that its decision to conclude joint supplycontracts with Calcestruzzi was solely intended to protect, and was the only possiblemeans of protecting, its commercial interests, namely to avoid the loss of a majorlocal customer, and that the raison d'être of those contracts was to be found in theparticular circumstances of the Italian cement and concrete market. Cementir thenproduces a series of documents (documents 33.126/2945 to 2951, 2934, 2935, 3065to 3068 and 2954 to 2966) to show that various Italian producers had at the timeundertaken action seeking to protect their market against imports from Greece,actions which had nothing whatsoever to do with the Cembureau agreement. Furthermore, those documents reflect the minor role played by Cementir in thoselocal actions. 3391. In its observations of 29 December 1997, Cementir relies on a series of documentsshowing that exports from Greece, which had been artificially maintained bysubstantial public subsidies wrongly tolerated by the Commission, and by exportcooperation agreements concluded a long time previously between Greek producers(documents 33.126/19369 to 19377, 19387, 19389 and 19412), reached a particularlyhigh level during the whole period considered in the contested decision, and thatthey even grew after 1987 (documents 33.126/20275 to 20282, 20294, 19889, 19781,20124 to 20137, 20140 to 20156, 19433, 20001, 19401 and 19410). All thosedocuments, which illustrate how deeply the Italian market was penetrated by Greekexports, are at variance with the existence, alleged by the Commission, of aEuropean agreement for the protection of home markets. In any event, they showthat that agreement had no effect in Italy, which the Commission ought to havetaken into consideration, at the very least when setting fines. They also bear outCementir's argument that its participation in the Calcestruzzi agreements wasinspired by strictly commercial consideration and that those agreements had nodamaging effect on the trade in cement between Italy and Greece. 3392. The Court points out, however, that any observations which Italcementi andCementir might have been able to formulate during the administrative procedureon the basis of the documents to which they now refer could not have prevailedover the bundle of documents referred to in recital 27, paragraphs 5 to 10, of thecontested decision, on the basis of which the Commission correctly found that theagreements signed between Calcestruzzi and the three Italian cement producers,Italcementi, Unicem and Cementir, in April 1987 constituted the implementationof an agreement between those producers seeking to prevent the threat of importsby Calcestruzzi of cement from Greece, a threat perceived as catastrophic forprices. 3393. In addition, it must be pointed out that in recital 55, paragraph 3, of the contesteddecision the Commission expresses a view on the argument put forward by theItalian producers during the administrative procedure that 'imports of Greekcement into Italy rose every year, and the agreement had no effect on imports andthus no effect restricting competition. 3394. Finally, it must be stated with regard to Cementir that during the administrativeprocedure the Commission clearly perceived the economic context which influencedthe reactions of the Western European cement producers, in particular themeasures to defend the Italian market against imports from Greece (see contesteddecision, recital 24, paragraph 2, and footnote no 113, and also recital 53,paragraph 8). 3395. It follows that Italcementi and Cementir's observations would not have had evena small chance of altering the outcome of the administrative procedure. Italcementi and Cementir have therefore not proved on this point the existence ofany breach of their rights of defence during the administrative procedure. 3396. It is clear from the foregoing considerations (paragraphs 3343 to 3395) that theCommission was fully entitled to find in Article 4(3)(b) of the contested decisionthat Italcementi, Unicem and Cementir infringed the provisions of Article 85(1) ofthe Treaty from 3 April 1987 to 3 April 1992 by participating in an agreementrelating to the contracts and agreements signed on 3 and 15 April 1987 having astheir aim the prevention of imports of Greek cement by Calcestruzzi.                                                                     Measures intended to deflect the Greek production surplus and to curb imports ofcement from Greece into the Member States (contested decision, Article 4(4)) 3397. In Article 4(4) of the contested decision the Commission finds a number ofinfringements relating to measures which were designed 'to deflect the Greekproduction surplus and to curb Greek cement imports into the Member States:  a concerted practice between Blue Circle, Castle and Rugby designed toprevent and/or reduce Greek cement imports into the United Kingdom(Article 4(4)(a));  an agreement between Blue Circle and Titan designed to deflect quantitiesof cement and clinker produced by Titan to the United States and Nigeriaand to prevent direct sales of such products by Titan on the Europeanmarkets (Article (4)(4)(b));  an agreement between Holderbank and Titan designed to deflect quantitiesof cement and clinker produced by Titan to the United States and Africa and to prevent direct sales of such products by Titan on the Europeanmarkets (Article 4(4)(c));  an agreement between Holderbank and Heracles designed to prevent directsales of cement by Heracles on the European markets and to deflectquantities of cement and clinker produced by Heracles to other markets(Article 4(4)(d));  an agreement between Lafarge and Titan designed to deflect quantities ofclinker produced by Titan to Canada and to prevent direct sales by Titanon the European markets (Article 4(4)(e));  an agreement between Lafarge and Heracles designed to deflect quantitiesof cement and clinker produced by Heracles outside Europe and to preventdirect sales of such products by Heracles on the European markets (Article4(4)(f));  a concerted practice between CBR, Heracles and Titan designed to preventdirect sales by the two Greek producers on the European markets (Article4(4)(g));  an agreement between Aker, EUROC and Titan designed to deflectquantities of cement and clinker produced by Titan to Africa, the UnitedStates and the Bahamas and to prevent direct sales of such products byTitan on the European markets (Article 4(4)(h)). 3398. Before examining the lawfulness of that provision of the contested decision, theCourt points out that Dyckerhoff (T-35/95), Ciments Français (T-39/95) and Halkis(T-104/95) deny having taken part, in the context of the ETF, in persuasivemeasures to encourage the purchase of cement and clinker from Greece. 3399. However, those three undertakings are not alleged to have committed any of theinfringements found in Article 4(4) of the contested decision. Their arguments musttherefore be rejected from the outset. 3400. It should also be pointed out that, in the observations it lodged on 10 February1997 following the measure of 2 October 1996 regarding access to the file (seeparagraph 164 above), Titan (T-64/95) relied on a number of items in the Italianfile which, in its view, would have enabled it to show that there were no agreementsor concerted practices between the Italian and Greek producers seeking to divertthe Greek production surplus away from European markets and/or prevent exportsfrom Greek producers to those markets, in particular to the Italian market. 3401. However, the contested decision does not accuse Titan of any infringement basedon its participation in a bilateral agreement or concerted practice or in channelling measures with the Italian cement producers that were intended to prevent itexporting to European markets. The observations of that applicant must thereforebe rejected from the outset. A  Concerted practice referred to in Article 4(4)(a) of the contested decision 3402. According to Article 4(4)(a) of the contested decision, Blue Circle, Castle andRugby infringed the provisions of Article 85(1) of the Treaty 'from 16 June 1986to 5 September 1986, by participating in a concerted practice designed to preventand/or reduce Greek cement imports into the United Kingdom. 3403. In recital 28, paragraphs 8 to 11, of the contested decision, the Commission claimsthat a number of internal Blue Circle memoranda show that Blue Circle held anumber of discussions, between June and September 1986, with the Greekproducers with the intention of stopping or at least reducing their sales in theUnited Kingdom. 3404. It goes on to state (paragraph 12, first subparagraph): '... it is apparent from a number of references in the documents obtained by theCommission that Blue Circle was not acting solely for its own account, but also forthat of the two other British producers, Rugby and RTZ (now Castle). Blue Circletook defensive measures against imports on various occasions and got the other twocompanies to bear some of the costs. This may be seen from the following: (a) the memo on the meeting held on 16 June 1986 between Mr Horner andMr Presanis (document 33.126/10991) contains an explicit reference toRugby and RTZ: Blue Circle was counting on their financial support so asto reduce the cost which it would otherwise have to bear alone for themeasures envisaged with Titan; (b) the internal Blue Circle memo relating to a meeting with Titan held on 17September 1986 (document 33.126/11080) refers to a position which, in itstalks with Titan, Blue Circle attributes to the United Kingdom industry asa whole; (c) the internal Blue Circle memos of 7 September 1987, 22 October 1987, 18December 1987 and 8 January 1988 (document 33126/11195 to 11198) showthat Blue Circle had managed to get the other two companies to bear partof what it called the Import Battle Costs. In particular, the memo of 18December 1987 (document 33126/11197) reveals that there was a generalrequirement to share the costs relating to several years, which made itunnecessary to have any specific prior agreement for each operation. 3405. On the basis of those various documents, it concluded (recital 56, paragraph 3) thatthere was a concerted practice between Blue Circle, Rugby and Castle aimed atpreventing and/or reducing Greek cement imports into the United Kingdom. 3406. At the hearing, Castle (T-56/95) produced documents 33.126/11199 to 11206, whichwere in the part of the Commission's file which it was able to consult after themeasures of organisation of procedure mentioned in paragraphs 164 and 168above. Those documents are an internal Blue Circle memorandum on the cost offighting imports. 3407. According to Castle, the comments which it could have made on the basis of thosedocuments, if they had been made available during the administrative procedure,would have enabled it to shed a different light on the content of the four internalBlue Circle memoranda referred to in recital 28, paragraph 12, first subparagraph,(c), of the contested decision (documents 33.126/11195 to 11198), on which theCommission relied in finding that Castle had agreed to bear part of the costsincurred by Blue Circle in preventing the importation into the United Kingdom ofcement from Greece. More specifically, Castle states that documents 33.126/11199to 11206 would have enabled it to show that there was no connection betweenthose costs and the offer of GBP 595 000 made to Blue Circle by RTZ (Castle'spredecessor (contested decision, recital 56, paragraph 4)) as a contribution to thecost of fighting imports, which is the offer mentioned in the abovementioned fourinternal Blue Circle memoranda and which the Commission expressly links to thecosts involved in the battle against Greek imports (contested decision, recital 28,paragraph 12(e), third indent). 3408. The Commission, which raised no objection to the production of those documents,acknowledged that they led it to consider that the offer in question was not relatedto the costs incurred in the fight against Greek imports. It also acknowledged thatin light of those documents it could not rely, as it had relied in the contesteddecision, on the four internal Blue Circle memoranda referred to in recital 28,paragraph 12, first subparagraph, (c), of the contested decision in order to find thatCastle had participated in the infringement referred to in Article 4(4)(a). 3409. So as to allow the parties to submit their observations on the documents producedby Castle, the oral procedure was reopened in Case T-53/95 Rugby v Commissionpursuant to Article 62 of the Rules of Procedure. 3410. The Commission then acknowledged that on reading those documents it could nolonger rely on the four internal Blue Circle memoranda referred to recital in 28,paragraph 12, first subparagraph, (c), of the contested decision, in finding thatRugby had participated in the infringement referred to in Article 4(4)(a). 3411. It is none the less necessary to ascertain what it is in the documents relied upon byCastle that sheds a different light on the content of the four internal Blue Circle memoranda in question to such an extent that they should be excluded as evidencewhen establishing the reality of the concerted practice between Blue Circle, Rugbyand Castle referred to in Article 4(4)(a). That step is necessary in order to assessthe effect of those documents on the other evidence adduced in that connection bythe Commission in the contested decision. 3412. The four internal Blue Circle memoranda referred to in the contested decisionmention two types of costs incurred by Blue Circle in the import battle. 3413. They raise, first of all, the matter of the costs involved in the 'East GermanContract. In its memorandum of 22 October 1987 (document 33.126/11196) BlueCircle states that it entered into that contract on its own initiative, 'without theknowledge of the other companies. Although it expected them to contribute, theyhad made it clear that they did not acknowledge any responsibility in the matter. 3414. The memoranda deal furthermore with the costs involved in 'West EuropeanImports. They show that the costs incurred by Blue Circle in fighting those importshad been the subject, for the period from 1983 to 1986, of at least a tacitagreement between Blue Circle, RTZ and Rugby to share them. Although BlueCircle was able to obtain a contribution to those costs from Rugby, there was adispute between Blue Circle and RTZ in that regard during the second half of1987. The offer to contribute GBP 595 000 which RTZ had made to Blue Circlein 1985/86 was not accepted by Blue Circle, since it considered that thecontribution should be of GBP 840 000. In the end, RTZ informed Blue Circle thatit did not intend to contribute to the costs. 3415. The documents relied upon by Castle (see paragraph 3406 above) are those in theannex to the internal Blue Circle memorandum of 7 September 1987 (document33.126/11195), a point which was not challenged by the Commission at the hearing. 3416. They describe first of all (documents 33.126/11199 to 11204) nine cases in which,during the period from 1983 to 1986, Blue Circle incurred costs on behalf of theBritish cement industry in the fight against imports into the United Kingdom: Item 1 Bulk Freighters Item 2 Hego Item 3 Marcon Item 4 Cebo Item 5 BCM (UK) Item 6 East German Cement Item 7 Cementa Item 8 White Mountain Item 9 MHS Cement Sales. 3417. They contain (document 33.126/11205) a 'suggested apportionment between BlueCircle, RTZ and Rugby of the costs involved in those various cases. 3418. Document 33.126/11206 states: 'It should be noted, however, that it has already been agreed with Rugby that theirobligations have been met except for items 5 & 6 by them having dealt with partof item 8 and having made a contribution of GBP 250 000. RTZ have offered GBP595 000 as their contribution; their view on items 5 & 6 is not yet clear ... 3419. None of those documents permits the inference that any of the cases they describeconcerned imports of cement from Greece, at the end of 1985 or early 1986, intothe United Kingdom market. 3420. They do not therefore make it possible to argue, as the Commission does in thecontested decision, that the references made by Blue Circle in its four internalmemoranda to the sharing between Rugby, RTZ and itself of the costs related toWestern European imports, and in particular to the dispute between itself andRTZ at that time over the amount of its contribution, concerned the costs involvedin the battle against imports from Greece. 3421. The four internal memoranda cannot therefore serve to show that the infringementfound in Article 4(4)(a) of the contested decision actually took place. 3422. At the hearing in Case T-56/95 and when the oral procedure was reopened in CaseT-53/95, the Commission nevertheless stated that the contributions made by Castleand Rugby to the costs borne by Blue Circle in the fight against imports fromGreece and, thus, the existence of the concerted practice found were sufficientlyestablished by Blue Circle's internal memorandum relating to the meeting held on16 June 1986 between Mr Horner (Blue Circle) and Mr Presanis (Titan) (contesteddecision, recital 28, paragraph 8, and paragraph 12, first subparagraph, (a)), morespecifically by the information contained in note (b) of its memorandum. 3423. In that connection, it should be stated that the last-mentioned document, drawn upby Mr Horner (Blue Circle) the day after his meeting on 16 June 1986 with MrPresanis (Titan), relates a series of 'concepts arrived at by the parties with regardto cement and clinker purchase/sale transactions involving Blue Circle, the Greekproducers Heracles and Titan, and Bouri (agent for the Greek producers in theUnited Kingdom), and with regard to Blue Circle's charter of a Bouri terminal. Asthings stood at the time, it is apparent that the purpose of those discussions was tofind a solution intended to halt or reduce imports into the United Kingdom ofcement from Greece. The memorandum states however: 'Bouri will be moreexpensive to remove once he starts selling. 3424. Note (b) of that document, to which the Commission specifically refers, states: '[P]rices are tentative  subject to negotiation. If achieved BCI should not haveadditional cash outlay beyond GDR commitment and Rugby and RTZ still paytheir proportion of nett loss, i.e. $ 5 per tonne. 3425. That statement shows that Blue Circle, which was confident at the time that Rugbyand RTZ would agree to contribute to the costs of the measures which it had beentaking since 1983 in the fight against imports into the United Kingdom, 'wascounting on their financial support so as to reduce the cost which it wouldotherwise have to bear alone for the measures envisaged with Titan (contesteddecision, recital 28, paragraph 12, first subparagraph, (a)). 3426. They do not however prove that Rugby and RTZ had agreed to share the costsinvolved in those possible measures. As stated in paragraphs 3415 to 3419 above,Blue Circle's description in January 1987 of the costs which it had borne from 1983to 1986 on behalf of the British cement industry in the fight against imports intothe United Kingdom (documents 33.126/11199 to 11206) does not allude to costsinvolved in measures taken in the fight against imports from Greece, which Rugby,RTZ and itself are alleged to have agreed to bear together. Neither does thestatement referred to in paragraph 3424 above prove that there was any collusionbetween Rugby, RTZ and Blue Circle designed to prevent and/or reduce importsof Greek cement into the United Kingdom. 3427. In conclusion, the evidence adduced by the Commission in recital 28, paragraphs8 and 12, first subparagraph, (a), of the contested decision does not therefore provethe existence of the concerted practice referred to in Article 4(4)(a). 3428. In recital 28, paragraph 12, first subparagraph, (b), of the contested decision, theCommission relies once again on the internal Blue Circle memorandum relating toits meeting of 17 September 1986 with Titan (document 33.126/11080) in order toestablish the existence of the concerted practice referred to in Article 4(4)(a) (seeparagraph 3404 above). That memorandum '[referred] to a position which, in itstalks with Titan, Blue Circle attributes to the United Kingdom industry as awhole. 3429. The Court points out that in the memorandum in question Blue Circle relates whattranspired during its meeting on 17 September 1986 with Titan, which dealt withthe situation of the Greek cement industry and the question of imports into theUnited Kingdom of cement from Greece. 3430. That memorandum states among other things: 'Turning to the UK, I explained that the British Industry had taken a firm positionand were unwilling to reach any accommodation with Bouri in the UK. There wasconsiderable political and union activity going on, which we could not call a halt to,and were not minded to do so anyway. 3431. Those statements do not make it possible to identify the precise nature of theconduct referred to when Blue Circle alludes to the taking of a firm position by the'British industry. 3432. Whatever its nature, Blue Circle might have wished to give Titan the impressionthat it was speaking on behalf of the United Kingdom industry as a whole, in orderto bring pressure to bear on its interlocutor in the discussions then taking place inan attempt to resolve the matter of exports to the United Kingdom of Greekcement. 3433. In those circumstances, the evidence adduced by the Commission in recital 28,paragraph 12, first subparagraph, (b), of the contested decision cannot prove theexistence of collusion between Blue Circle, Rugby and Castle intended to eliminateor reduce imports into the United Kingdom of Greek cement. 3434. It follows from the foregoing (paragraphs 3406 to 3433) that the Commission hasnot established the existence of a concerted practice between Blue Circle, Castleand Rugby designed to prevent and/or reduce Greek cement imports into theUnited Kingdom. 3435. It follows that Article 4(4)(a) of the contested decision must be annulled. 3436. It is therefore not necessary to examine the observations which Rugby (memorandaof 7 February and 29 December 1997) and Castle (memoranda of 10 February and24 December 1997) submitted following the measures of organisation of procedurementioned in paragraphs 164 and 168 above with a view to proving that their rightsof defence had been infringed during the administrative procedure in connectionwith the finding of the infringement in Article 4(4)(a) of the contested decision. B  Agreements and concerted practice referred to in Article 4(4)(b) to (h) of thecontested decision 3437. In Article 4(4)(b) to (h) of the contested decision, the Commission finds seveninfringements each of which involved, on the one hand, a European producer whichparticipated in the ETF and, on the other, the Greek producers Heracles and/orTitan. 3438. The various alleged infringements relate to the purchases and contracts describedin recital 28, paragraphs 15 to 22, of the contested decision, which all represent,according to the Commission (contested decision, recital 56, paragraph 1) 'theimplementation of agreements and concerted practices prohibited by Article 85(1),since they 'form part of the persuasive measures (carrot actions) adopted by theCembureau Task Force with a view to deflecting the Greek production surplus and halting or, at the very least, curbing exports within Europe by the Greek cementproducers. 3439. In the contested decision (recital 56, paragraphs 5, 8, 11, 12 and 13), theCommission takes the view that the abovementioned purchases and contracts werethe implementation of agreements or concerted practices contrary to Article 85(1)of the Treaty because they were designed to prevent direct sales by the Greekproducers on the European markets and/or to deflect all or part of the quantitiesconcerned to other markets, and that the parties concerned were aware of this. 3440. It therefore finds that the Greek producers were responsible for infringements ofArticle 85(1) of the Treaty on the ground that, in its view, they knew that the aimpursued by their European co-contractors through the purchase transactions inquestion was to prevent direct sales of their products on the European marketsand/or to deflect quantities of those products to other markets. It relies, in thatconnection, on various documents referred to in recital 28 of the contested decisionto show that, after the problem involving imports into Western Europe of Greekcement arose, the Greek producers held discussions from mid-1986 with theEuropean producers with a view to finding a solution to that problem. 3441. In that connection, it should first be observed that the Commission does not disputethat the business relations between the cement producers in general, and betweenthe parties to the alleged infringements in particular, constitute a standard practiceon the international market, which existed well before the problem of imports ofGreek cement arose (see contested decision, recital 28, paragraphs 15, eighthsubparagraph, 16, last subparagraph, 19, last subparagraph, and 22, lastsubparagraph). The purchases referred to in recital 28 of the contested decisioncannot therefore be considered to be the result of an unusual process engenderedby the conditions of the time, which would in itself make it possible to deem themunlawful. It must also be pointed out that other contracts entered into during thesame period between Western European producers and the Greek producers werereferred to in the SO (see point 20), but are no longer referred to in the contesteddecision. 3442. Next, it should be borne in mind that, towards mid-1985, the Greek producers werefaced with very serious problems of over-capacity linked to the collapse of theirMiddle-Eastern export markets. They sought to resolve those problems by lookingtowards western Europe, where they began to export, towards the end of 1985 orearly 1986, on markets which they regarded as most accessible (contested decision,recital 24, paragraph 1, and contested decision, recital 56, paragraph 1). Thatsituation induced a number of non-Greek cement producers and associations ofcement producers to set up the ETF, which was entrusted with devising, inter alia,persuasive measures to eliminate the imports of cement into western Europe,primarily from Greece. According to the Zurich/Céligny document (contesteddecision, recital 28, paragraph 1; document 33.126/18775), the persuasive measures in question were to consist in placing on a certain number of markets, primarily theUnited States of America and West Africa, tonnage of cement produced by the'destabilising cement industry, that is to say, at that time, the Greek cementindustry. 3443. In such a context, the mere fact that the Greek producers, following theirdiscussions with the western European producers, knew that, by the purchases inquestion, the latter intended to halt or, at least, reduce their direct sales in westernEurope does not allow the conclusion that they were parties to agreements orconcerted practices contrary to Article 85(1) of the Treaty. 3444. Such knowledge can be deemed to reveal unlawful conduct only if it is establishedthat it was accompanied by the adherence of the Greek producer in question to theobject pursued by the western European producers through the purchasesconcerned. Since the object in question was clearly against the interests of theGreek cement industry (see paragraph 3442 above), only evidence of anundertaking by the Greek producer that, in return for the purchases or contractsunder consideration, it would halt or reduce its direct sales on the Europeanmarkets could be deemed to constitute adherence by it to that object. 3445. That was in any event the approach adopted in the SO by the Commission asregards the factor rendering the Greek producers liable. 3446. In point 61(h)(v) it stated: 'All the contracts listed in point 20 are agreements prohibited by Article 85(1). Asmay be seen in points 16 to 20, such contracts form part of the carrot actionsadopted by the Cembureau Task Force in order to deflect the Greek productionsurplus, and the clear condition governing the conclusion of the contracts was thatthe Greek producers must cease their direct supplies in Europe. Consequently, all the contracts must be deemed to be agreements in breach ofArticle 85, not only those concerning supplies in Europe, but also those concerningsupplies outside Europe. Such latter contracts also restrict competition since, byvirtue of their contractual obligations, the Greek producers selling outside Europehave lost the possibility of marketing all or a large proportion of their goods withinthe common market, where they were entitled to hope to be able to market themin the light of circumstances and in particular the prices which they could havecharged. This applies all the more as the Greek producers had already begun toexport to the Community countries which they considered most vulnerable and asthe declared aim of the contracts was to halt such exports. 3447. It is unequivocally clear from that passage that, in the SO, the Commission foundthe Greek producers liable for agreements with Western European producerscontrary to Article 85(1) of the Treaty on the ground that, in its view, in exchange for the contracts in question, they had adhered to the unlawful object pursued bythe Western European producers through such contracts, by undertaking in theirturn to 'halt (or 'cease) their direct supplies on the Community markets, thuslosing, because of their 'contractual obligations, the chance of disposing of theirproducts on those markets in accordance with their commercial interests. 3448. In conclusion, the Greek producer in question can be held responsible for conductcontrary to Article 85(1) of the Treaty only if there is evidence that in exchange forthe purchases in question it undertook to halt or reduce its direct sales on theEuropean markets. 3449. Only one undertaking, apart from Heracles and/or Titan, is accused of each of theinfringements referred to in Article 4(4)(b) to (h) of the contested decision, namelythe European co-contractor involved in the purchases or contracts in question, itbeing understood that, in Article 4(h), the Commission attributes to Aker andEUROC the allegedly unlawful conduct of their joint subsidiary Scancem (seecontested decision, recital 28, paragraph 22, and recital 56, paragraph 13). It istherefore only on the condition set out in the preceding paragraph that it may beconcluded that there was an agreement or concerted practice, as found in thosevarious paragraphs of Article 4 of the decision. Even if it were to be found that theEuropean co-contractor in question purchased products from Greece with a viewto the anti-competitive object pursued at ETF level, it cannot be accused of havingparticipated on its own in an unlawful agreement or concerted practice. 3450. In the light of those considerations, the legality of Article 4(4)(b) to (h) of thecontested decision must be examined. 1. Agreement between Blue Circle and Titan referred to in Article 4(4)(b) of thecontested decision 3451. According to Article 4(4)(b) of the contested decision, Blue Circle and Titaninfringed the provisions of Article 85(1) of the Treaty 'from 4 July 1986 to 31December 1989, by participating in an agreement designed to deflect quantities ofcement and clinker produced by Titan to the United States and Nigeria and toprevent direct sales of such products by Titan on the European markets. 3452. The matters relating to that infringement are set out in The Facts, in recital 28,paragraph 15, of the contested decision, and in the Legal Assessment, in recital 56,paragraph 5, of the contested decision. 3453. In recital 28, paragraph 15, first subparagraph, the Commission refers to twotelexes of 4 and 7 July 1986 (documents 33.126/19545 and 19546) by which BlueCircle purchased from Titan 20 000 tonnes of cement destined for Boston at theprice of USD 29 per tonne FOB. It also refers (third subparagraph) to telexes of 11 and 14 August and 1 and 5 September 1986 (documents 33.126/19547 to 19551and 19553 to 19555) which report the purchase by Blue Circle of some 25 000tonnes of cement from Titan on behalf of Blue Circle Atlantic for a maximum priceof USD 27 FOB depending on the strength of the cement. It compares thequantities and the prices mentioned in those various telexes to the followinginformation which appears in the record of the ETF meeting on 19 August 1986(contested decision, recital 28, paragraphs 3 and 15, second and thirdsubparagraphs): 'BCI [Blue Circle Industries] has started taking deliveries fromGreece to US already (first vessel completed discharging Boston 20 000 ton secondloading shortly for Baltimore 25 000 ton). Price: 1st shipment USD 29  FOB and2nd USD 27. 3454. It then observes (paragraph 15, fifth subparagraph): 'The following contracts for cement supplies to the United States were signedbetween Blue Circle Atlantic and Titan: contract of 14 October 1986, amended on30 November 1986 (documents 33.126/10926 to 10941); contract of 1 August 1987,amended on 2 August 1987, 31 August 1987, 15 January 1988 and 24 October 1988(documents 33.126/10896 to 10905, 10946 to 10951 and 19562 to 19579); contractof 24 October 1988 (documents 33.126/10907 to 10914). These contracts relate tosupplies, respectively, of 300 000 tonnes from 1 January to 31 December 1987, 200000 tonnes from 1 January to 31 December 1988 plus an option for 200 000 tonnes,and 216 000 tonnes from 1 November 1988 to 31 December 1989. 3455. According to the Commission, those quantities are to be compared with thequantities which Blue Circle stated it wished to purchase from Titan and Heraclesfor the United States for each of the years 1986/87, 1987/88 and 1988/89. TheCommission observes, moreover, that item 1.5 on the agenda for the ETF meetingheld on 11 February 1987 states 'Greek exports: quantities and contracts withmembers of the Task Force 1987 [documents 33.126/18937 and 18938]. 3456. It also mentions (sixth subparagraph) the telexes of 17 December 1986, 7 and 15January, 12 and 26 February, 1 and 3 April 1987 (documents 33.126/19461 to19469), concerning cement ordered by Blue Circle from Titan for Nigeria.According to the Commission (same subparagraph), those purchases should becompared with the quantities of 100 000 tonnes for unspecified destinations whichBlue Circle stated that it wished to purchase for each year from 1986 to 1989. 3457. At recital 56, paragraph 5, the Commission concludes: 'Blue Circle's purchases from Titan agreed by telex message on 4 July 1986, 11August 1986, 14 August 1986, 1 September 1986, 5 September 1986, 17 December1986, 7 January 1987, 15 January 1987, 12 February 1987, 26 February 1987, 1April 1987 and 3 April 1987 and the contracts concluded on 14 October 1986, 1August 1987 and 24 October 1988 and their additional clauses, between Blue Circle and Titan (see paragraph 15 of recital 28) embody an agreement betweenundertakings in breach of Article 85(1) from 4 July 1986 to 31 December 1989. Thepurpose of the contract was to deflect the quantities concerned to markets otherthan the European markets, and this was known to the two parties (see paragraphs1 to 11 and 15 of recital 28). 3458. Rugby (T-53/95) and Castle (T-56/95) put forward a number of arguments to showthe lawfulness of the purchases to which the agreement referred to in Article4(4)(b) of the contested decision related. By those arguments, they in actual factseek to prove the lawfulness of the object of the concerted practice found inArticle 4(4)(a), a practice which, in the Commission's view, related in particular tosome of the purchases covered by Article 4(4)(b) (see contested decision, recital56, paragraph 3(i)). 3459. Those arguments must be rejected here, inasmuch as, first, Article 4(4)(a) of thecontested decision has been annulled (see paragraphs 3406 to 3435 above) and,secondly, neither Rugby nor Castle is charged with the infringement referred to inArticle 4(4)(b). 3460. Titan (T-64/95) and Blue Circle (T-88/95) put forward an argument on thesubstance whereby they seek the annulment of Article 4(4)(b). They claim,moreover, that the Commission infringed their rights of defence when it found theinfringement in question, in that it did not grant them access during theadministrative procedure to the full SO and its investigation file, thus deprivingthem of allegedly exculpatory evidence. 3461. As to the substance, Titan argues that, whatever might have been the objectpursued by the members of the ETF through the transactions referred to in recital28 of the contested decision, they formed part, so far as it was concerned, of itsnormal export activities. Those transactions were not tainted, so far as it wasconcerned, by any anti-competitive purpose. 3462. Titan gives details of the economic context and the commercial opportunities whichprompted it to seek new export markets from 1986. It explains that it turned itsattention to the American market, which was booming, as well as to WesternEuropean markets, where it considered that there were unexploited opportunities.Those exports to the American market were determined solely by market forcesand by the single concern to carry out profitable transactions. Furthermore, thequality of the cement which it produced (in particular its low alkaline content)corresponded to what was required on that market. As for the European markets,Titan observes that, on account of the structural over-capacity of those markets atthe time, it, like the other Greek producers, had to overcome innumerablepressures, difficulties, obstacles (commercial, technical and administrative) anddissuasive measures, intended to prevent it from disposing of its production surpluses. In that situation, it cannot be criticised for having accepted purchaseoffers made to it from various European producers. 3463. Titan adds that, despite those many obstacles, its exports in western Europeboomed from 1985. Thus it cannot be accused of having sought to reduce the levelof intra-Community trade in cement and clinker. The fact that its Europeanpartners might have purchased its production surplus with a view to absorbingthose quantities deemed to be destabilising for their markets does not make itpossible to conclude that there was an unlawful intention on its part. Titan in anyevent did not knowingly participate in an unlawful agreement contrary to itsinterests by agreeing to the persuasive proposals whose purpose was to divert itsproduction to non-member countries. 3464. Titan also complains that the Commission infringed the principle of equaltreatment by finding its exports to the United States to be measures implementingthe Cembureau agreement without having assessed the legality of the exportactivities of the members of the ETF on non-Community markets, in particular theUnited States, when their activities represented a major proportion of imports ontothe American market. It claims also that the Commission failed to fulfil itsobligation to provide reasons in that it did not set out in the contested decision thereasons which had led it to consider that the exports from Greece should bedistinguished in that respect from other exports from Europe. 3465. Titan and Blue Circle submit, next, that the purchases referred to in recital 28,paragraph 15, of the contested decision, formed part of the long-term commercialrelationship between Blue Circle and Titan, on the one hand, and Titan andNigeria, on the other. Titan explains that trade between European cementproducers with a view to re-exportation to countries which are not members of theCommunity is standard practice. Blue Circle adds that the contested decision doesnot suggest that an express or implied condition of those purchases was that Titanshould in future refrain from exporting cement to any other place in the commonmarket. It claims that the Commission made an error of law. Even if one of thereasons which induced it to purchase Greek cement was to reduce the surplus ofthat cement in western Europe, and in the United Kingdom in particular, theexistence of that intention, one of a number of reasons for those purchases, did notmake those normal commercial transactions an infringement. 3466. So far as concerns, firstly, the cement purchased by Blue Circle from Titan destinedfor the United States, referred to in paragraph 3453 above, the Court points outthat the parties do not dispute the connection made by the Commission betweenthose purchases and the statements in the record of the ETF meeting on 19 August1986 (contested decision, recital 28, paragraph 15, second and third subparagraphs).Such a connection leads to the view that those purchases had their origin in BlueCircle's contribution to the persuasive measures referred to in the Zurich/Célignydocument in order to absorb the 'destabiliser's tonnage (contested decision, recital 28, paragraph 1; document 33.126/18775), measures which it had been for the ETFto evaluate (see paragraph 2538 above). 3467. Moreover, when that document was being finalised, Blue Circle had pointed outthat its American subsidiary, Blue Circle Atlantic, could place some of that'destabiliser's tonnage on the American market (contested decision, recital 28,paragraph 1; document 33.126/18775). 3468. That analysis is confirmed by the following extract from the internal Blue Circlememorandum (contested decision, recital 28, paragraphs 4 and 11; document33.126/11083) entitled 'Greek imports, undated, but drafted in early September1986, which is not challenged by the parties: 'In recent weeks Blue Circle, Holderbank and Lafarge have all started absorbingsome Greek cement or clinker, primarily from Titan, in their US and Canadianoperations in good faith to keep the door open with the Greeks. 3469. None the less, neither the telexes concerning Blue Circle's purchases destined forthe United States (see paragraph 3453 above), the record of the ETF meeting on19 August 1986, nor the documents mentioned in the two preceding paragraphscontain anything to show that, in exchange for the purchases in question, Titan gaveBlue Circle an undertaking that it would halt or reduce its direct sales on theEuropean markets, particularly in the United Kingdom. 3470. On the contrary, in a letter dated 22 September 1986 to Holderbank (contesteddecision, recital 28, paragraph 4; document 33.126/11094), Blue Circle stated thatit had 'decided to continue with [its] arrangement to take Greek tonnage for [its]US operations, despite no resolution so far of the UK problem. It continues: 'Itold Presanis (and Karageropoulos in an earlier phone call) that so long as theGreeks remained a threat to the UK market we would not go on paying thepremium prices that we had accepted on the recent shipments from Titan and ourfuture US business would have to be at market rates. It concludes: 'We hope thatby holding out the prospects of continuing Blue Circle business in the USA, we willat least keep down their level of activity in the UK. 3471. Such statements show that no solution to the problem of Greek imports had beenfound in the United Kingdom at the end of September 1986. They show that BlueCircle had not obtained a promise from Titan that it would halt or reduce its directsales on the United Kingdom market in exchange for orders placed between thebeginning of July and the beginning of September 1986. 3472. The lack of evidence of such an undertaking by Titan is also clear from thefollowing extract from an internal Blue Circle memorandum of 24 October 1986(document 33.126/11132, not cited in the contested decision): '[T]he Greeks arehere to stay. Whilst political attention remains focused on the issue they cannot withdraw quietly and not being bound by the same rules of trading which limit ourroom for manoeuvre they have everything to gain and nothing to lose by waiting. 3473. In short, it appears that the orders referred in recital 28, paragraph 15, first andthird subparagraphs, of the contested decision were merely a gesture of 'goodfaith on the part of Blue Circle intended to 'to keep the door open with theGreeks (contested decision, recital 28, paragraph 4; document 33.126/11083). 3474. As regards, secondly, the contracts between Blue Circle Atlantic and Titan (seeparagraph 3454), it must be observed that the documents relating to those contractsdo not show that, in exchange for them, Titan gave an undertaking to Blue Circlethat it would halt or reduce its direct sales on the European markets. The extractfrom the internal Blue Circle memorandum of 24 October 1986 (see paragraph3472 above) is proof to the contrary, in any event so far as concerns the contractof 14 October 1986. 3475. As has been pointed out above (paragraph 3455), the Commission makes aconnection between the tonnage provided for under the contracts in question andthose which 'Blue Circle stated it wished to purchase from Titan and Heracles forthe United States for each of the years 1986/87, 1987/88, 1988/89. 3476. In that respect, the Court points out that, in an internal memorandum 'Discussionpaper  Cheap imports  Meeting at 9.30 a.m. on Monday 7 July 1986 (contesteddecision, recital 28, paragraph 9; documents 33.126/10992 to 10994), Blue Circle,after setting out the solutions available to the British cement industry, namely apolicy of non-cooperation with the Greek producers or a policy of cooperation withthem, states with regard to the latter that the discussions with Titan and Heracleshad led to examination of two alternative solutions. 3477. According to the first solution, a European intermediary would purchase 1 milliontonnes over one year for shipment to destinations outside Europe. 3478. The second solution envisaged a three-year agreement under which Titan andHeracles would sell part of their production to Blue Circle. It was thus envisagedthat in each of the three years of the agreement 500 000 tonnes would be boughtfor shipment to the United States. 3479. The tonnage and destinations mentioned under that second solution are set out ina handwritten, undated Heracles note (contested decision, recital 28, paragraph 9;documents 33.126/19864 and 19865), as well as in a memorandum of understanding,also undated (contested decision, recital 28, paragraph 9; document 33.126/11096). 3480. Even if what had been offered in exchange for the two 'solutions was the haltingor, at least, the reduction by Heracles and Titan of their direct sales to the United Kingdom, it must be pointed out that none of the documents referred to in thecontext of those solutions show that either of them was adopted by the parties. 3481. As the Commission observes (contested decision, recital 28, paragraph 9), it is clearfrom the internal Blue Circle memorandum for the meeting of 7 July 1986 that theGreek producers had not accepted the one-year restriction under the first solution. 3482. So far as concerns the second solution, the same internal Blue Circle memorandumstates that it is true that it '[had] been agreed in principle with the Greeks, but[that it was] contingent upon, as is [the first solution], reaching agreement withBouri (contested decision, recital 28, paragraph 9; document 33.126/10993).However, the contested decision does not adduce any evidence to show that thelatter agreement was reached. 3483. On the contrary, the memorandum of understanding referred to in paragraph 3479above states (item 5): 'The Parties will enter into a formal agreement(s) to reflectthe above intentions. The implementation of the agreement(s) will be conditionalupon the Buyer concluding an agreement with Party D, in respect of its distributionfacilities in the United Kingdom and Sellers appointing Buyer as its distributor inthe UK. However, once again the contested decision does not contain anyevidence that those various conditions were fulfilled. 3484. Nor does the undated handwritten Heracles note (see paragraph 3479 above) provethat the second solution set out in the internal Blue Circle memorandum on themeeting on 7 July 1986 was adopted by the parties. 3485. In those circumstances, there is no evidence to establish, as the Commission claims,that there is a link between the quantities concerned by the contracts referred toin recital 28, paragraph 15, fifth subparagraph, of the contested decision and 'thequantities which Blue Circle stated that it wished to buy from Titan and fromHeracles for the United States for each of the years 1986/87, 1987/88, 1988/89during its discussions with them. 3486. Moreover, at the same time Blue Circle and Titan were discussing a programmeunder which purchases would be made for the United States 'independently fromthe [United Kingdom] situation (internal Blue Circle memorandum on the meetingheld on 17 September 1986 between Blue Circle and Titan; contested decision,recital 28, paragraph 10; document 33.126/11081). Under that programme, BlueCircle 'could make available 600 000  1 million tonnes of business to Titan and/orHeracles in the North East [United States] (same document). 3487. The contracts referred to in recital 28, paragraph 15, fifth subparagraph, of thecontested decision could have been related to that programme of importationrather than to the discussions to which the Commission links them. 3488. The Commission (same subparagraph) also compares those contracts with the factthat item 1.5 on the agenda of the ETF meeting on 11 February 1987 reads 'Greekexports: quantities and contracts with members of the Task Force 1987 (document33.126/18937 and 18938). 3489. None the less, such a statement does not prove that the contracts were concludedas a result of an agreement between Titan and Blue Circle which was unlawful inso far as Titan had promised Blue Circle that in exchange for those contracts itwould halt or reduce its direct sales on the European markets. 3490. So far as concerns, thirdly, Blue Circle's orders for Titan cement destined forNigeria (see paragraph 3456 above), the telexes relating to those contracts do notshow that, in exchange for them, Titan gave an undertaking to Blue Circle that itwould halt or reduce its direct sales on the European markets, in particular in theUnited Kingdom. 3491. As has been stated above (paragraph 3456), the Commission compares thequantities concerned by those orders to 'the quantities of 100 000 tonnes forunspecified destinations which Blue Circle stated that it wished to purchase foreach year from 1986 to 1989. 3492. Under the second solution set out in the internal Blue Circle memorandum on themeeting of 7 July 1986 (see paragraph 3476 above), it was envisaged in particularthat Heracles and Titan would sell to Blue Circle, during each of the three yearsof the agreement referred to in that second solution, 100 000 tonnes for unspecifieddestinations. Those particulars are also set out in the handwritten Heracles noteand in the abovementioned memorandum of understanding (see paragraph 3479above). 3493. However, as has been stated above (see paragraphs 3480 and 3482 to 3484), thereis no evidence to support the view that the solution in question was adopted. 3494. Moreover, there is no evidence establishing, as the Commission claims, that thereis a link between the quantities concerned by the orders referred to in recital 28,paragraph 15, sixth subparagraph, of the contested decision and 'the quantities of100 000 tonnes for unspecified destinations which Blue Circle stated that it wishedto purchase for each year from 1986 to 1989 during its discussions in July 1986with the Greek producers. 3495. In recital 28, paragraph 15, penultimate subparagraph of the contested decision, theCommission sets out the following extract taken from Mr Marshall's (Blue Circle)note of 14 May 1987 concerning the EPC meeting of 13 May 1987 (documents33126/11344 and 11345): 'Titan. They were pleased with their contact with Blue Circle and in particular withPhilip Hawkesworth. Ivan Tryfonas commented that with hindsight he believes thatcommon sense is beginning to prevail, certainly in Titan. They respect the way we have dealt with them in the USA and feel that theirsupplying Northern Ireland is not as emotive as to the mainland. 3496. According to the Commission, that extract shows that the purchases referred to inrecital 25, paragraph 15, of the contested decision 'represent something other thana normal business relationship (same paragraph, last subparagraph). 3497. In that connection, the Court points out that the said extract does not contain anyreference to Blue Circle's orders placed with Titan destined for Nigeria. It cannottherefore, in any event, prove the unlawful nature of the purchases referred to inrecital 28, paragraph 15, sixth subparagraph, of the contested decision. 3498. Moreover, the comments and views expressed by Titan's representative to theparticipants in the meeting of the EPC of 13 May 1987 might have been intendedto make the European producers reduce the pressure they were bringing to bearon the Greek producers, in particular on Titan, in order to induce them to halttheir exports to Western European markets. In any case, they do not prove thatin exchange for the purchases referred to in recital 28, paragraph 15, of thecontested decision Titan promised Blue Circle that it would halt or reduce its directsales on the European markets. 3499. The Commission (defence and rejoinder in Case T-64/95) refers to a number ofdocuments to show that Titan participated in the elements of the infringementdescribed in recital 28, in particular paragraph 15, of the contested decision. 3500. It relies, in the first place, on the content of the Zurich/Céligny document (seeparagraph 2539 above). According to the Commission, that document shows thatthe members of the ETF quickly persuaded Titan, after it wished to break the ruleon non-transhipment to home markets, to cooperate in implementing that rule byaccepting measures intended to share the market. 3501. However, the Zurich/Céligny document only proves that, following the 'problemsposed by the destabilising cement industry (document 33126/18772), the WesternEuropean cement producers agreed a number of measures, in particular persuasive,intended to eliminate those destabilising imports. It does not prove that Titan,which, for obvious reasons, was in no way involved in drawing it up nor ever askedto approve its content, adhered to the anti-competitive purpose pursued by themeasure it advocated, by agreeing to halt or reduce its direct sales on theEuropean markets in exchange for purchases by the European producers of itsproduction surpluses. It cannot therefore constitute proof that the purchases referred to in recital 28, paragraph 15, of the contested decision embodied anunlawful agreement between Blue Circle and Titan. 3502. Secondly, the Commission observes, as it does in the contested decision (recital 28,paragraph 11), that, according to the internal Blue Circle memorandum of earlySeptember 1986 (see paragraph 3468 above), 'at a meeting held the previous weekin Athens, Titan proposed restricting the combined sales of Titan and Heracles inthe United Kingdom to 300 000 tonnes the first year and 500 000 tonnes the secondand third years. 3503. However, that memorandum does not show that the offer in question was made byTitan in exchange for the purchases and contracts referred to in recital 28,paragraph 15, of the contested decision. Contrary to the Commission's submission,the statement in that memorandum to the effect that 'Titan see a quota for theUK as additional to any tonnage being absorbed by Blue Circle in its USoperations does not establish a link between the purchases made by Blue Circleof Titan cement for the United States and the reduced presence of Titan on theUnited Kingdom market. At most, it evinces Titan's concern not to have thequantities purchased by Blue Circle for its operations in the United States takeninto account as part of a possible agreement to limit imports into the UnitedKingdom of cement from Greece. 3504. Moreover, the abovementioned offer was never seen by Blue Circle as a clearundertaking by Titan to halt or reduce its direct sales in the United Kingdom. Ina letter to Holderbank dated 22 September 1986 (document 33.126/11094), that isto say shortly after Titan made the offer, Blue Circle stated that there was 'noresolution so far of the UK problem. Furthermore, as the Commission states(recital 28, paragraph 13), restriction of Greek imports into the United Kingdomwas the result of an agreement reached at the end of December 1986 between theUnited Kingdom and Greek governments rather than between the Greek andUnited Kingdom producers. 3505. Thirdly, the Commission submits that Titan was actively involved in the search forsolutions likely to guarantee, in the interest of all the parties concerned, thestability of the Community markets. It relies on the various documents referred toin recital 28, paragraphs 1 to 9, of the contested decision. 3506. The documents referred to in recital 28, paragraphs 3, 5, 8 and 9 of the contesteddecision clearly show that discussions were held between Titan and Europeancement producers, primarily Blue Circle, with a view to finding a solution to theproblem posed by the importation into Western Europe of cement from Greece. 3507. None the less, as the Commission finds (recital 28, paragraph 7), 'the ETFmembers did not manage to reach a collective agreement with the Greek producers[to absorb destabilising quantities], since the Greek producers were very hesitant on this subject. The solution based on a restriction of Greek imports into theUnited Kingdom was the result of an intergovernmental agreement between theUnited Kingdom and Greece (see paragraph 3504 above). 3508. In any event, none of the documents referred to in recital 28, paragraphs 1 to 9,of the contested decision shows that, in exchange for the transactions referred toin recital 28, paragraph 15, Titan gave an undertaking to halt or reduce its directsales on the European markets. 3509. Fourthly, the Commission states that, according to the letter of 22 September 1986from Blue Circle to Holderbank, the special prices fixed in the contracts agreedbetween Titan and Blue Circle Atlantic were explained by the anti-competitiveobject of those contracts rather than the particular quality of the Titan products.It also relies on the following extract from the internal Blue Circle memorandumon the meeting of 17 September 1986 (documents 33.126/11080 to 11082) 'Presanis[Titan] agreed that the premium prices we had been paying on the shipments toBoston and Baltimore this year had been contingent upon finding a negotiatedsolution in the UK and that next year's business should be discussed, therefore, ona commercial basis relative to BC Inc's interests. 3510. It is true that those various items of evidence confirm the persuasive intentionbehind Blue Circle's purchases referred to in recital 28, paragraph 15, first andthird subparagraphs of the contested decision. However, the internal Blue Circlememorandum of 17 September 1986 shows also that, in exchange for thosepurchases at preferential prices, Titan had at most agreed to give some thought toa negotiated solution to the problem posed by the importation into the UnitedKingdom of cement from Greece. 3511. However, none of those particulars shows that in exchange for orders from BlueCircle for Boston and Baltimore Titan gave an undertaking to halt or reduce itsdirect sales in the United Kingdom. Rather, as has been pointed out (seeparagraph 3470 above), the Blue Circle letter to Holderbank of 22 September 1986emphasises the continuing absence, up to the end of September 1986, of a solutionto the matter of imports into the United Kingdom of cement from Greece. 3512. In view of the foregoing (paragraphs 3439 to 3450 and 3466 to 3511), it must beconcluded that the Commission has not established that the purchases andcontracts referred to in recital 28, paragraph 15, of the contested decisionembodied an anti-competitive agreement between Blue Circle and Titan designedto deflect quantities of cement and clinker produced by Titan to the United Statesand Nigeria and to prevent direct sales of such products by Titan on the Europeanmarkets. 3513. It follows that Article 4(4)(b) of the contested decision must be annulled. 3514. Accordingly, there is no need to examine the observations which Blue Circle(memorandum of 10 February 1997) and Titan (memoranda of 10 February and18 December 1997) submitted following the measures of organisation of theprocedure mentioned in paragraphs 164 and 168 above in order to prove that theirrights of defence were infringed during the administrative procedure in relation tothe finding of the infringement in Article 4(4)(b) of the contested decision. 2. Agreement between Holderbank and Titan referred to in Article 4(4)(c) of thecontested decision 3515. According to Article 4(4)(c) of the contested decision, Holderbank and Titaninfringed the provisions of Article 85(1) of the Treaty 'from 19 June 1986 to 31December 1990, by participating in an agreement designed to deflect quantities ofcement and clinker produced by Titan to the United States and Africa and toprevent direct sales of such products by Titan on the European markets. 3516. The arguments concerning that infringement are set out, in The Facts, in recital 28,paragraph 16, of the contested decision and, in the Legal Assessment, in recital 56,paragraphs 6 and 8, of the contested decision. 3517. In recital 28, paragraph 16, first subparagraph, the Commission observes: 'There is a draft contract between Titan and UMAR (a Holderbank subsidiary)dated 19 June 1986; this draft was signed by Titan but not by UMAR and relatesto the supply of clinker and cement for the United States (document 33126/19501to 19511). According to Titan (p. 50 of the reply to the statement of objections),this contract was not accepted by UMAR: nevertheless during June and July 1986Titan supplied UMAR with two cargoes of clinker and one of cement totalling 61437 tonnes. This tonnage is to be compared with the record of the ETF meetingof 19 [August] 1986 (see paragraph 3 above). Holderbank has also agreed to buy(not signed yet) 90 000 tons from Titan. One shipment of 7 000 tons has beentaken... 3518. It states next (second subparagraph) that two contracts were signed betweenUMAR and Titan on 16 January and 18 December 1987 relating to the supply ofclinker of at least 200 000 tonnes for 1987 and 90 000 tonnes for 1988 to IdealBasic Industries (a Holderbank subsidiary in the United States) (documents33.126/19482 to 19489). 3519. It also states (third subparagraph) that, on 20 August 1988, Pays Bas Cement Co(a subsidiary of Holderbank in the Netherlands) and Titan signed a contractrelating to the shipment from 1 August 1988 to 31 December 1990 of a total of 300000 tonnes of clinker, at least half of which was destined for Benelux and the restfor Africa (documents 33.126/19814 to 19843). 3520. It compares (fourth subparagraph) the quantities concerned by those threecontracts with 'the undertaking of ETF members to buy a million tonnes and more,and even 2 to 3 million tonnes from Greek producers (see documents mentionedin paragraphs 1 to 6 above). 3521. In recital 56, paragraphs 6 and 8, it concludes: 'The purchases made by the Holderbank group in June and July 1986 from Titanand the contracts signed between the Holderbank group and Titan on 16 January1987, 18 December 1987 and 20 August 1988 (see paragraph 16 of recital 28)embody an agreement between those undertakings in breach of Article 85(1) from19 June 1986 to 31 December 1990. ... The purpose of the contracts was to prevent direct sales by the two Greekproducers on the European markets and to deflect part of the quantities concernedto other markets, and this was known to the parties in question (see paragraphs 1to 7 and 16 and 17 of recital 28). 3522. Titan (T-64/95) and Holderbank (T-68/95) submit arguments on the substanceseeking the annulment of Article 4(4)(c) of the contested decision. Titan also claimsthat the Commission infringed its rights of defence when it found the infringementin question, because it did not grant it access during the administrative procedureto the full SO and its investigation file, thus depriving it of allegedly exculpatoryevidence. 3523. As to the substance, Titan, in addition to its general line of argument set out abovein paragraphs 3461 to 3464, and Holderbank maintain that the various purchasesreferred to in recital 28, paragraph 16, of the contested decision formed part oftheir pre-existing business relationship. Those transactions were devoid of any anti-competitive purpose. Titan adds that the trade between European cement andclinker producers with a view to re-exportation to countries within and outside theCommunity is standard practice. 3524. So far as concerns the transactions referred to in recital 28, paragraph 16, firstsubparagraph, of the contested decision (see paragraph 3517 above), the Courtpoints to the following statements contained in the record of the ETF meeting on19 August 1986 (contested decision, recital 28, paragraph 3): 'Holderbank has ... agreed to buy (not signed yet) 90 000 tons from Titan. Oneshipment of 7 000 tons has been taken. ... Holderbank has also bought 50 000 tons clinker from Titan at a price of US$ 19.80FOB. 25 000 tons already delivered, all above for US markets. 3525. The internal Blue Circle memorandum of early September 1986 (see paragraph3468 above) states: 'In recent weeks Blue Circle, Holderbank and Lafarge have all started absorbingsome Greek cement or clinker, primarily from Titan, in their US and Canadianoperations in good faith to keep the door open with the Greeks. 3526. On reading those various extracts, the Commission was justified in taking the viewthat the purchases of cement and clinker made by UMAR in June and July 1986from Titan originated, at least in part, in Holderbank's contribution to thepersuasive measures envisaged in the Zurich/Céligny document in order to absorbthe 'tonnage (from) the destabilising Cement Industry (contested decision,recital 28, paragraph 1; document 33.126/18775), measures which it had been forthe ETF to evaluate (see paragraph 2538 above). 3527. At the time when that document was finalised, Holderbank had also offered toplace part of that 'destabilising tonnage on the American market. 3528. However, the contested decision does not contain any evidence that, in exchangefor those purchases, Titan gave an undertaking that it would halt or reduce itsdirect sales on the European markets. 3529. Those purchases were thus merely a sign of 'good faith on the part of Holderbankvis-à-vis Titan, intended to encourage it to seek with the European producers asolution to the problem posed by the importation into Western Europe of cementfrom Greece. 3530. So far as concerns, next, the contracts of 16 January 1987, 18 December 1987 and20 August 1988 (see paragraphs 3518 and 3519 above), the Court finds that thedocuments relating to them do not show that, in return for them, Titan gave anundertaking to Holderbank that it would halt or reduce its direct sales on theEuropean markets. 3531. The documents referred to in recital 28, paragraphs 1 to 6, of the contesteddecision (see paragraph 3520 above), which the Commission (same recital,paragraph 16, fourth subparagraph) compares with the quantities concerned by thecontracts in question in order to establish their unlawful nature, show first of allthat, when the Zurich/Céligny document was finalised, several European producers,members of the ETF, pointed to the apparent opportunities for placing part of theGreek production surplus on non-European markets (see the Zurich/Célignydocument, in particular document 33.126/18775, cited in the contested decision,recital 28, paragraph 1). 3532. Those documents indicate that, during August 1986, Blue Circle, Holderbank andLafarge 'all started absorbing some Greek cement or clinker, primarily from Titan,in their US and Canadian operations in good faith to keep the door open with theGreeks (contested decision, recital 28, paragraph 4; document 33.126/11083). Atthe same time, the participants in the ETF examined, in August/September 1986,the possibility of negotiating with the Greek producers a collective take-offagreement involving one or even two to three million tonnes of their production inreturn for the halting of their direct shipments of cement to Western Europe(contested decision, recital 28, paragraphs 2 and 5; documents 33.126/10988 to10990, 18858 and 18859). The 'undertaking given by the European producers topurchase the abovementioned quantities was thus part of a collective negotiation,the consideration being the halting of direct sales of Greek products in WesternEurope. 3533. However, as the Commission states, 'the ETF members did not manage to reacha collective agreement with the Greek producers, since the Greek producers werevery hesitant on this subject (contested decision, recital 28, paragraph 7). 3534. The Commission contends that the absence of a collective take-off agreement isexplained by the Greek producers' preference for individual agreements withcertain ETF members. 3535. In that regard, the only document referred to in the contested decision which maybe relied upon in support of that claim is the record of the meeting of HeadDelegates and ETF representatives of 9 September 1986 in Baden-Baden. It statedthat 'the Task Force believes that the Greek industry is no longer interested in aglobal take-off-agreement, preferring individual agreements with other countries(e.g. Italy) (contested decision, recital 25, paragraphs 22 and 25; document33.126/18859). It added: 'In the light of the support by the British Government andother institutions in the campaign against subsidised Greek cement imports it wouldnot be appropriate to enter into any agreements at that time. Such statements donot prove that individual take-off agreements were concluded between the Greekproducers and ETF members on the basis of the former promising the latter thatthey would halt or reduce their direct sales on the European markets. 3536. In those circumstances, the connection alleged by the Commission in recital 28,paragraph 16, fourth subparagraph, of the contested decision cannot support theconclusion that the contracts signed by Holderbank and Titan on 16 January 1987,18 December 1987 and 20 August 1988 were unlawful. 3537. The Commission (defence and rejoinder in Case T-64/95) relies on two furtherdocuments to show that Titan participated in the infringement referred to in recital28, particularly in paragraph 16, of the contested decision. 3538. It relies, first of all, on the content of the Zurich/Céligny document (see paragraph3500 above). 3539. For the reasons set out in paragraph 3501 above, that document cannot howeverprove that the transactions referred to in recital 28, paragraph 16, embodied anunlawful agreement between Holderbank and Titan. 3540. The Commission states, secondly, that Titan was actively involved in the search forsolutions to ensure the stability of the Community markets in the interest of all theparties concerned. It relies on the various documents referred to in recital 28,paragraphs 1 to 9, of the contested decision. 3541. Several of those documents do in fact refer to discussions between Titan andEuropean cement producers intended to find a solution to the 'Greek problem.The record of the meeting of Head Delegates and ETF representatives of 9September 1986 in Baden-Baden states in particular that, '[during] the most recentmeeting between Titan and Blue Circle/Holderbank, Titan had expressedwillingness to cooperate 3542. None the less, as has already been stated several times (see, inter alia, paragraph3507 above), those discussions were never successful owing to the hesitancy of theGreek producers. As regards the United Kingdom in particular, the problem posedby imports from Greece was resolved in December 1986 at political level by anintergovernmental agreement between the United Kingdom and Greece. 3543. In any case, none of the documents referred to in recital 28, paragraphs 1 to 9, ofthe contested decision shows that, in return for the transactions referred to inrecital 28, paragraph 16, Titan gave an undertaking to Holderbank that it wouldhalt or reduce its direct sales on the European markets. 3544. In view of the foregoing (paragraphs 3439 to 3450 and 3524 to 3543), it must beconcluded that the Commission has not established that the shipments andcontracts referred to in recital 28, paragraph 16, of the contested decisionembodied an unlawful agreement between Titan and Holderbank designed todeflect quantities of cement and clinker produced by Titan to the United States andAfrica and to prevent direct sales of such products by Titan on the Europeanmarkets. 3545. It follows that Article 4(4)(c) of the contested decision must be annulled. 3546. Accordingly, there is no longer any need to examine the observations which Titan(memoranda of 10 February and 18 December 1997) submitted following themeasures of organisation of the procedure mentioned in paragraphs 164 and 168above, in order to prove that its rights of defence were infringed during the administrative procedure in relation to the finding of the infringement inArticle 4(4)(c) of the contested decision. 3. Agreement between Holderbank and Heracles referred to in Article 4(4)(d) ofthe contested decision 3547. According to Article 4(4)(d) of the contested decision, Holderbank and Heraclesinfringed the provisions of Article 85(1) of the Treaty 'from 9 May 1986 to 31December 1990, by participating in an agreement designed to prevent direct salesof cement by Heracles on the European markets and to deflect quantities ofcement and clinker produced by Heracles to other markets. 3548. The arguments concerning that infringement are set out in The Facts, in recital 28,paragraph 17, of the contested decision, and in the Legal Assessment, in recital 56,paragraphs 7 and 8, of the contested decision. 3549. In the contested decision, recital 28, paragraph 17, first subparagraph, theCommission observes that '[o]n 9 May 1986 a contract for the supply of 100 000tonnes of cement was signed between Heracles and UMAR (documents33.126/20057 to 20064). It compares those quantities with the information in therecord of the ETF meeting on 19 August 1986: 'Furthermore they [Holderbank]have bought 100 000 tons from Heracles, whereof 40 000 has been delivered. 3550. It goes on to state (second subparagraph): 'On 19 May 1988 a contract for the supply of 490 000 tonnes (230 000 tonnes ofclinker and 260 000 tonnes of clinker or cement) broken down into 110 000 tonnesin 1988, 190 000 tonnes in 1989 and 190 000 tonnes in 1990, was signed betweenHeracles and UMAR (documents 33.126/20063 to 20071). Under Article 6 of thiscontract, the destination for at least 230 000 tonnes of clinker must, at thepurchaser's choice, be the Netherlands and/or Luxembourg and/or Belgium; theremaining quantities of clinker or cement may go to non-Benelux countries and thepurchaser must ask for the vendor's prior consent in writing. 3551. It compares (third subparagraph) the quantities concerned by that contract with'the statement by Holderbank and other producers that they wished to purchaseone million tonnes and more, and even 2 to 3 million tonnes from Greek producers(see documents mentioned in paragraphs 1 to 6 above). 3552. In recital 56, paragraphs 7 and 8, it concludes: 'The contracts signed between the Holderbank group and Heracles on 9 May 1986and 19 May 1988 (see paragraph 17 of recital 28) embody an agreement between those undertakings in breach of Article 85(1) from 9 May 1986 to 31 December1990. The purpose of the contracts was to prevent direct sales by the two Greekproducers on the European markets and to deflect part of the quantities concernedto other markets, and this was known to the parties in question (see paragraphs 1to 7 and 16 and 17 of recital 28). 3553. Heracles (T-57/95) and Holderbank (T-68/95) contest the existence of theinfringement found in Article 4(4)(d) of the contested decision. 3554. Heracles complains that the Commission wrongly evaluated its market position andstrategy and the economic context which led it to turn, from 1986, to theCommunity markets in order to ensure its survival. It refers to the numerousobstacles and difficulties which it had to surmount in order to dispose of itsproduction on those markets. They related in part to the economic situation, thestructure of the Western European markets, its geographical location, financialsituation and infrastructures, as well as, in part, to the setting-up of the ETF. Thosebarriers did not however prevent it from concluding contracts with variousEuropean producers and from increasing considerably the volume of its exports toEurope from 1986. In those circumstances, it cannot be accused of havingknowingly participated, against its own interests, in arrangements which reduced itsexport opportunities. 3555. Heracles and Holderbank maintain that the contracts referred to in recital 28,paragraph 17, of the contested decision were normal commercial transactions,devoid of any anti-competitive object or effect. They stress that UMAR, a businesspartner of Heracles' in those transactions, was a company specialising in theinternational clinker and cement trade. 3556. As regards the contract of 9 May 1986 mentioned in recital 28, paragraph 17, firstsubparagraph, of the contested decision (see paragraph 3549 above), the followingextract from the record of the ETF meeting of 19 August 1986 (contested decision,recital 28, paragraph 3) should be noted: 'Furthermore they have bought 100 000tons from Heracles, whereof 40 000 tons has been delivered. Bloom is involved inthe last deal as he unloads the vessels in Mississippi and distributes it to Dundee'smarket. 3557. On reading that extract, the Commission was entitled to consider that Holderbankhad intended to present the contract in question, which concerned the supply of100 000 tonnes of cement, as its contribution to the persuasive measurescontemplated in the Zurich/Céligny document in order to absorb the 'tonnage[from] the destabilising Cement Industry (contested decision, recital 28,paragraph 1; document 33.126/18775), measures which it had been for the ETF toevaluate (see paragraph 2538 above). 3558. It is common ground that the problem relating to the importation into WesternEurope of cement from Greece arose towards the end of 1985 or early 1986(contested decision, recital 24, paragraph 1). Holderbank was thus able, withoutawaiting the setting-up of a structured agreement or concerted practice with itsEuropean colleagues, to undertake action through its subsidiary UMAR designedto remove the threat from such imports, action which it subsequently presented asits contribution to the persuasive measures agreed in the meantime at ETF level. 3559. However, the contested decision contains no evidence to show that, in return forthat contract, Heracles gave an undertaking to Holderbank that it would halt orreduce its direct sales on the European markets. Indeed, according to thedocuments mentioned in recitals 25 to 28 of the contested decision, that contractwas concluded before discussions were held between the European and Greekproducers with a view to finding a solution to the problem posed by theimportation into Western Europe of cement from Greece. 3560. The absence of an undertaking by Heracles to halt or reduce its direct sales on theEuropean markets in return for the contract concluded with UMAR on 9 May 1986is corroborated by the following passage from the minutes of the meeting of theboard of Heracles on 23 July 1986 (documents 33.126/19878 to 19880, not cited inthe contested decision): '[Th]e European manufacturers have formed a united front with the British toprevent us from going into Britain with Titan, and in the face of this threat theyoffered us some small quantities for America. Of course we rejected thisarrangement, because it was not in our interest, nor did we yield to their threatsand coercion. However, they continued to threaten us, and closed ranks with acompany based in Switzerland, which they are financing, in order to make war onus. ... It is true ... that this trust of European cement manufacturers is formidable,because they have control of 120 million tonnes of cement, but in spite of this wedid not yield to their threats. The result of this was that the British alone asked tonegotiate and offered us satisfactory quantities for America. Once again we stuckto our guns, on the grounds that we want to have foot in Britain, and in the endthe British accepted this, but we are still negotiating. 3561. So far as concerns the contract of 19 May 1988, referred to in recital 28, paragraph17, second subparagraph, of the contested decision (see paragraph 3550 above), theCourt points out that the documents relating to that contract do not show that, inreturn for it, Heracles gave an undertaking to Holderbank that it would halt orreduce its direct sales on the European markets. 3562. In the light of the Court's analysis of the abovementioned documents made inparagraphs 3531 to 3535 above, the connection established by the Commission, onthe basis of the documents referred to in recital 28, paragraphs 1 to 6, of thecontested decision, between the quantities concerned by that contract and the 'statement by Holderbank and other producers that they wished to purchase onemillion tonnes and more, and even 2 to 3 million tonnes from Greek producers(contested decision, recital 28, paragraph 17, third subparagraph) does not supportthe view that the contract was unlawful. 3563. The Commission (defence in Case T-57/95) also puts forward other documents toshow that Heracles committed an infringement by participating in the contractsreferred to in recital 28, paragraph 17, of the contested decision. 3564. Referring generally to the documents referred to in recital 28 of the contesteddecision, it states that Heracles knew about the ETF and the discussions whichwere held in that context with a view to diverting part of the Greek surplusproduction outside Western European markets. Heracles was even involved inthose discussions. It thus participated in full awareness of the facts in resolving theproblem relating to the importation of Greek cement. The documents referred toin recital 28, paragraph 9, illustrate Heracles' involvement in the negotiations. 3565. In point of fact, several documents mentioned in recital 28, particularly inparagraphs 5 and 9, of the contested decision illustrate Heracles' participation indiscussions with the European cement producers, primarily Blue Circle, with a viewto finding a solution to the problem relating to the importation of cement fromGreece. 3566. None the less, as has already been found several times (see, inter alia, paragraph3507 above), those discussions were never successful because of the hesitancy of theGreek producers. As regards the United Kingdom in particular, the problem posedby imports from Greece was resolved in December 1986 at political level by anintergovernmental agreement between the United Kingdom and Greece. 3567. In any case, none of the documents referred to in recital 28 of the contesteddecision show that, in return for the contracts mentioned in recital 28, paragraph17, Heracles gave an undertaking to Holderbank that it would halt or reduce itsdirect sales on the European markets. 3568. In view of the foregoing (paragraphs 3439 to 3450 and 3556 to 3567), it must beconcluded that the Commission has not established that the contracts signed on 9May 1986 and on 19 May 1988 between the Holderbank Group and Heraclesembodied an anti-competitive agreement between those two undertakings designedto prevent direct sales of cement by Heracles on the European markets and todeflect quantities of cement and clinker produced by Heracles to other markets. 3569. It follows that Article 4(4)(d) of the contested decision must be annulled. 4. Agreement between Lafarge and Titan referred to in Article 4(4)(e) of thecontested decision 3570. According to Article 4(4)(e) of the contested decision, Lafarge and Titan infringedthe provisions of Article 85(1) of the Treaty 'from 22 July 1986 to 31 December1991, by participating in an agreement designed to deflect quantities of clinkerproduced by Titan to Canada and to prevent direct sales by Titan on the Europeanmarkets. 3571. The matters concerning that infringement are set out in The Facts, in recital 28,paragraph 18, and in recital 19, third and fourth subparagraphs, and in the LegalAssessment, in recital 56, paragraphs 9 and 11, of the contested decision. 3572. In recital 28, paragraph 18, first subparagraph, the Commission notes the followingstatement from the record of the ETF meeting of 19 August 1986: 'Lafarge hasbought one cargo from Titan for Montreal and second cargo will be taken inSeptember. 3573. It mentions next (second subparagraph) a number of Lafarge's internal documentsof 28 January 1986 (rather than 28 January 1987, as erroneously stated) and of 8July 1986, and the table of Lafarge's purchases from Greece in 1986 (documents33.126/14407, 14412 and 14417). According to those documents (samesubparagraph), 'on 22 July 1986 Lafarge bought 33 051 tonnes of clinker in Greecevia CFCI for delivery to Montreal on 5/10 August 1986 and on 19 August 1986bought 29 806 tonnes of clinker for Canada Cement Lafarge. 3574. It also states (third subparagraph): '[o]n 12 June 1987, Titan agreed to sell Lafargea cargo of 26 000 tonnes of clinker for Montreal (document 33.126/14433 to14437). 3575. Finally, it mentions (fourth subparagraph) the contract of 3 June 1988 (documents33.126/14422 to 14424), incorporated into the contract of 20 October 1988(document 33.126/19708 to 19721), by which 'Titan and Lafarge agreed on 150 000tonnes a year of clinker to be supplied from 1 November 1988 to 31 December1991, half of which was to go to France, including the islands belonging to France. 3576. According to the Commission (fifth subparagraph), the quantities involved in thosecontracts should be compared with 'the statement by Lafarge and other producersthat they wished to buy one million tonnes and more, and even 2 to 3 milliontonnes from Greek producers. 3577. In recital 56, paragraphs 9 and 11, it concludes: 'The direct or indirect purchases made by Lafarge from Titan on 22 July 1986, 19August 1986 and 12 June 1987, and the contracts concluded between Lafarge and Titan on 3 June 1988 and 20 October 1988 (see paragraph 18 of recital 28) embodyan agreement between those undertakings in breach of Article 85(1) from 22 July1986 to 31 December 1991. ... The purpose of the contracts was to prevent direct sales by the two Greekproducers on the European markets and to deflect a part of the quantitiesconcerned to other markets, and this was known to the parties in question (seeparagraphs 1 to 7 and 18 and 19 of recital 28). 3578. Lafarge (T-43/95) and Titan (T-64/95) put forward an argument on the substance,seeking the annulment of Article 4(4)(e) of the contested decision. They complain,moreover, that the Commission infringed their rights of defence when it found theinfringement in question in that it did not grant them access during theadministrative procedure to the full SO and its investigation file, thus deprivingthem of allegedly exculpatory evidence. 3579. On the substance, Lafarge complains first of all that the Commission ignored thespecial features of international trade in cement and clinker when it analysed thetransactions referred to in recital 28, paragraph 18, of the contested decision. Theoutlets offered by the markets for which the purchases were intended weremanifestly much greater than the surpluses which the Greek cement producerssought to dispose of at that time. The Commission also failed to take account ofthe difference between cement and clinker. 3580. Next, Lafarge and Titan, in addition to Titan's general line of argument set out inparagraphs 3461 to 3464 above, state that the various purchases referred to aboveformed part of their pre-existing business relationship and that they were motivatedexclusively by lawful concerns. 3581. As regards, first, the purchases referred to in recital 28, paragraph 18, secondsubparagraph, of the contested decision (see paragraph 3573 above), the Courtpoints to the following statement from the record of the ETF meeting of 19 August1986 (contested decision, recital 28, paragraph 3): 'Lafarge has bought one cargofrom Titan for Montreal and second cargo will be taken in September. 3582. The internal Blue Circle memorandum of early September 1986 (see paragraph3468 above) states: 'In recent weeks Blue Circle, Holderbank and Lafarge have allstarted absorbing some Greek cement or clinker, primarily from Titan, in their USand Canadian operations in good faith to keep the door open with the Greeks. 3583. Although the Lafarge documents mentioned in recital 28, paragraph 18, secondsubparagraph, do not indicate that the orders for Greek clinker to which they referwhere placed with Titan, the Commission was justified, in view of the fact that the times and the destinations coincided, to compare those orders with the informationin the record of the ETF meeting on 19 August 1986. Such a comparison leads tothe view that those purchases originated in Lafarge's contribution to the persuasivemeasures contemplated in the Zurich/Céligny document in order to absorb the'tonnage [from] the destabilising Cement Industry (contested decision, recital28, paragraph 1; document 33.126/18775), measures which it had been for the ETFto evaluate (see paragraph 2538 above). 3584. However, the contested decision does not contain any evidence that, in return forthose orders, Titan gave an undertaking to Lafarge that it would halt or reduce itsdirect sales on the European markets. 3585. Those purchases were thus merely a sign of 'good faith on the part of Lafarge vis-à-vis Titan, intended to encourage them to seek with the European producers asolution to the problem posed by the importation into Western Europe of cementfrom Greece. 3586. So far as concerns, secondly, the contracts referred to in recital 28, paragraph 18,third and fourth subparagraphs, of the contested decision (see paragraphs 3574 and3575 above), the documents relating to them do not show that, in return for them,Titan gave an undertaking to Lafarge that it would halt or reduce its direct saleson the European markets. 3587. In the light of the Court's analysis in paragraphs 3531 to 3535 above of thedocuments referred to in recital 28, paragraphs 1 to 6, the connection establishedby the Commission between the quantities concerned by those contracts and 'thestatement by Lafarge and other producers that they wished to buy one milliontonnes and more, and even 2 to 3 million tonnes from Greek producers (recital28, paragraph 18, fifth subparagraph) does not support the view that thosecontracts were unlawful. 3588. In recital 28, paragraph 19, third subparagraph, of the contested decision, theCommission also relies on the fact that the contract of 20 October 1988, in whichthe contract of 3 June 1988 was incorporated (recital 28, paragraph 18, fourthsubparagraph), was mentioned at the EPC meeting of 20 October 1988, asindicated in the record of that meeting drawn up by Ciments Français (documents33.126/18179 and 18180). 3589. The Court points to the following passage from that record: 'Lafarge is engaged in two sets of negotiations with the Greeks which are provingvery difficult because of their fussiness over details. ... negotiation with Titan is more difficult, Lafarge is looking to incorporate itscontract with the contract for the exchange of Dassault aircraft, which would yielda commission (?) of 3% for them. Many bilateral talks between Mr Liduena and the Greeks of course, but also withHispacement. 3590. The parties do not dispute that the 'negotiation with Titan, which Lafargementioned during that meeting, concerned the contract which they concluded on20 October 1988, that is to say, the day of the meeting itself. Moreover, thatcontract was signed in Barcelona, the very city in which the EPC meeting inquestion was held. 3591. However, there is nothing in the extract from the abovementioned record of themeeting to suggest that, in return for that contract, Titan gave an undertaking toLafarge that it would halt or reduce its direct sales on the European markets. 3592. The Commission (defence and rejoinder in Case T-64/95) relies on two furtherdocuments to show that Titan committed an infringement by participating in thetransactions referred to in recital 28, particularly in paragraph 18, of the contesteddecision. 3593. It relies, first of all, on the content of the Zurich/Céligny document (see paragraph3500 above). 3594. For the reasons set out in paragraph 3501 above, that document cannot howeverprove that the transactions referred to in recital 28, paragraph 18, embodied anunlawful agreement between Lafarge and Titan. 3595. The Commission states, secondly, that Titan was actively involved in the search forsolutions to ensure, in the interest of all the parties concerned, the stability of theCommunity markets. It relies on the various documents referred to in recital 28,paragraphs 1 to 9, of the contested decision. 3596. Several of those documents do in fact attest to the participation of Titan indiscussions with European cement producers to find a solution to the problemrelating to importations into Western Europe of cement from Greece. 3597. None the less, as has already been stated several times (see, inter alia, paragraph3507 above), those discussions never had a successful outcome. In any case, noneof the documents referred to in recital 28, paragraphs 1 to 9, of the contesteddecision show that, in return for the transactions mentioned in recital 28, paragraph18, Titan gave an undertaking to Lafarge that it would halt or reduce its direct saleson the European markets. 3598. In view of the foregoing (paragraphs 3439 to 3450 and 3581 to 3597), it must beconcluded that the Commission has not established that the purchases andcontracts between Lafarge and Titan referred to in recital 28, paragraph 18, of thecontested decision embodied an unlawful agreement between those partiesdesigned to deflect quantities of clinker produced by Titan to Canada and toprevent direct sales by Titan on the European markets. 3599. It follows that Article 4(4)(e) of the contested decision must be annulled. 3600. Accordingly, there is no longer any need to examine the observations which Lafarge(memorandum of 28 January 1998) and Titan (memoranda of 10 February and 18December 1997) submitted following the measures of organisation of procedurementioned in paragraphs 164 and 168 above, in order to prove that their rights ofdefence were infringed during the administrative procedure in relation to thefinding of the infringement in Article 4(4)(e) of the contested decision. 5. Agreement between Lafarge and Heracles referred to in Article 4(4)(f) of thecontested decision 3601. According to Article 4(4)(f) of the contested decision, Lafarge and Heraclesinfringed the provisions of Article 85(1) of the Treaty 'from 1 June 1988 to 15June 1991, by participating in an agreement designed to deflect quantities ofcement and clinker produced by Heracles outside Europe and to prevent directsales of such products by Heracles on the European markets. 3602. The arguments concerning that infringement are set out in The Facts, in recital 28,paragraph 19, of the contested decision, and in the Legal Assessment, in recital 56,paragraphs 10 and 11, of the contested decision. 3603. In recital 28, paragraph 19, first subparagraph, the Commission states: 'On 17 June 1988, a contract, running from 1 June 1988 to 15 June 1991, wassigned between Lafarge Overseas America and Heracles (documents 33.126/14454to 14469). This contract is for the supply, for each year of the contract, of 500 000tonnes of clinker and cement. The clinker could be for destinations outside France,and part of the cement could be exported to the countries indicated in addendumNo 2 and, as far as Europe is concerned, to France, Portugal, Scandinavia, Turkey,but most of it had to go to France. The price of the clinker and cement for deliveryto France varied in keeping with changes in the price of cement in France(documents 33.126/14446 to 14453). 3604. It compares (second subparagraph) the quantities concerned by that contract 'withthe statement by Lafarge and other producers that they wished to buy a milliontonnes and more, and even 2 to 3 million tonnes from Greek producers. 3605. In recital 56, paragraphs 10 and 11, it concludes: 'The contract concluded between Lafarge and Heracles on 17 June 1988 (seeparagraph 19 of recital 28) embodies an agreement between those undertakings inbreach of Article 85(1) from 1 June 1988 to 15 June 1991. The purpose of [that] contrac[t] was to prevent direct sales by the two Greekproducers on the European markets and to deflect a part of the quantitiesconcerned to other markets, and this was known to the parties in question (seeparagraphs 1 to 7 and 18 and 19 of recital 28). 3606. Lafarge (T-43/95) and Heracles (T-57/95) put forward an argument on thesubstance seeking the annulment of Article 4(4)(f) of the contested decision.Lafarge also complains that the Commission infringed its rights of defence whenit found the infringement in question in that it did not grant it access during theadministrative procedure to the full SO and its investigation file, thus depriving itof allegedly exculpatory evidence. 3607. On the substance, Lafarge puts forward an argument similar to that set out inparagraph 3579 above. Heracles also criticises the Commission for having failed totake account, when examining the contract in question, of the difference betweenthe markets for cement and for clinker, a distinction which it does neverthelessrecognise in the contested decision. 3608. Lafarge and Heracles, in addition to Heracles' general line of argument set out inparagraph 3554 above, state that their contract of 17 June 1988 formed part oftheir pre-existing business relationship and that it was motivated exclusively bylawful grounds. They claim that that contract had no anti-competitive object oreffect. 3609. The Court points out that the documents relating to that contract do not show that,in return for it, Heracles gave an undertaking to Lafarge that it would halt orreduce its direct sales on the European markets. 3610. In the light of the Court's analysis in paragraphs 3531 to 3535 above, of thedocuments referred to in recital 28, paragraphs 1 to 6, the connection establishedby the Commission between the quantities concerned by that contract and the'statement by Lafarge and other producers that they wished to purchase onemillion tonnes and more, and even 2 to 3 million tonnes from Greek producers(recital 28, paragraph 19, second subparagraph) cannot support the view that thecontract was unlawful. 3611. In recital 28, paragraph 19, third subparagraph, of the contested decision, theCommission also relies on the fact that that contract was referred to at the EPC meeting of 20 October 1988, as attested by the record of that meeting drawn upby Ciments Français (documents 33.126/18179 and 18180). 3612. The following passage from that record states: 'Lafarge is engaged in two sets of negotiations with the Greeks which are provingvery difficult because of their fussiness over details. The Heracles talks seem settled (Lafarge must provide them with a supplytimetable next month, once their 1989 budgets are drawn up). ... Many bilateral talks between Mr Liduena and the Greeks of course, but also withHispacement. 3613. Even if the Commission were justified in making the connection between thecontract signed on 17 June 1988 between Heracles and Lafarge and theinformation provided by Lafarge at the EPC meeting of 20 October 1988 on itsnegotiations with Heracles, it must be held that there is nothing in the aboveextract of the record drawn up by Ciments Français of that meeting to suggest that,in return for the contract of 17 June 1988, Heracles gave an undertaking to Lafargethat it would halt or reduce its direct sales on the European markets. 3614. The Commission (defence in Case T-43/95) also states that that contract providedfor changes in the purchase price in line with fluctuations in the price of cementand clinker on the French market. That clause shows that the purchases referredto in that contract were intended to prevent competition from the Greek producerson the Community market. 3615. However, whatever the purpose of such a clause, there is no evidence that Heraclespromised Lafarge that it would halt or reduce its direct sales on the Europeanmarkets in return for the contract in question. 3616. In view of the foregoing (paragraphs 3439 to 3450 and 3609 to 3615), it must beconcluded that the Commission has not established that the contract of 17 June1988 between Lafarge and Heracles embodied an unlawful agreement betweenthose parties designed to deflect quantities produced by Titan outside Europeanmarkets and to prevent direct sales of the products by Titan on those markets. 3617. It follows that Article 4(4)(f) of the contested decision must be annulled. 3618. Accordingly, there is no longer any need to examine the observations which Lafarge(memorandum of 28 January 1998) submitted, following the measures oforganisation of the procedure mentioned in paragraphs 164 and 168 above, in order to prove that its rights of defence were infringed during the administrativeprocedure in relation to the finding of the infringement in Article 4(4)(f) of thecontested decision. 6. Concerted practice between CBR, Heracles and Titan referred to inArticle 4(4)(g) of the contested decision 3619. According to Article 4(4)(g) of the contested decision, CBR, Heracles and Titaninfringed the provisions of Article 85(1) of the Treaty 'from 4 May 1988 to 31December 1990, by participating in a concerted practice relating to supplies,through UMAR, of clinker intended for CBR and ENCI in Belgium and theNetherlands and designed to prevent direct sales by the two Greek producers onthe European markets. 3620. The matters concerning that infringement are set out, in The Facts, in recital 28,paragraphs 20 and 21, of the contested decision, and in the Legal Assessment, inrecital 56, paragraph 12, of the contested decision. 3621. In recital 28, paragraph 20, second subparagraph, of the contested decision, theCommission observes that 'on 19 May 1988 and 20 August 1988 UMAR and PaysBas Cement Co. signed contracts with Heracles and Titan respectively for thesupply of clinker, at least half of which was intended for Benelux. 3622. It goes on to state (third subparagraph): 'On 15 July 1988, UMAR and CBR concluded a contract on the general conditionsfor transferring Greek clinker (documents 33.126/18117 to 18121). By telexmessages dated 13 September 1988, 27 January 1989 and 24 March 1989, CBRplaced orders, each for 25 000 tonnes of clinker, with UMAR (documents331276/18122 to 18124). Sea freight contracts for the execution of three ordersindicate CBR as the consignee and Titan as the supplier-consignor (documents33.126/18125 to 18127). 3623. Finally, it sets out (fourth subparagraph) the following extract from the handwrittenrecord of the CBR Board of Directors meeting on 4 May 1988 on the conclusionof the transfer contract referred to in the preceding paragraph (documents33.126/7632 and 7633): 'Preferring in Benelux clinker imports to cement imports because they confer nopossibility of influence over the market, Mr Celis, with the agreement of the EEC,concluded an agreement to import clinker from Greece. This clinker will be usedin the grinding halls of the Netherlands and in Belgium. Through the intermediaryof the Madrid company (U)mar (international trading company) Mr Celis will drawup a contract relating to the import of Greek clinker, provided that Greece limits cement exports to Benelux. This contract will run for two years and will cover280 000 tonnes or 1.65% of our consumption. The purchase price FOB Greece isUSD 29.5, plus transport and unloading costs. The Chairman thanks Mr Celis fornegotiating this contract brilliantly and reaching a very positive result. 3624. In recital 56, paragraph 12, it concludes: 'The contract concluded between UMAR and CBR on 15 July 1988 (seeparagraphs 20 and 21 of recital 28), being an indirect application of a concertedpractice between CBR, Heracles and Titan on the limitation of sales by thoseGreek producers in the Benelux countries in return for purchases by CBR,constitutes an infringement of Article 85(1) from 4 May 1988 to 31 December 1990. The purpose of the contract was to prevent direct sales by the two Greekproducers on the Benelux markets, and this was known to the parties in question(see paragraphs 1 to 7, 16, 17, 20 and 21 of recital 28). 3625. Although the alleged arrangement between CBR, Heracles and Titan is describedas a concerted practice, it is none the less clear from the latter passage in thecontested decision that the Commission accuses the parties concerned of havingpursued, through the alleged concerted practice, a purpose similar to that of theagreements referred to in Article 4(4)(b) to (f) and (h) of the contested decision,namely to prevent direct sales by the Greek producers on the European markets. 3626. The three applicants concerned put forward an argument on the substance seekingthe annulment of Article 4(4)(g) of the contested decision. CBR and Titan alsocomplain that the Commission infringed their rights of defence when it found theinfringement in question in that it did not grant them access during theadministrative procedure to the full SO and its investigation file, thus deprivingthem of allegedly exculpatory evidence. 3627. On the substance, CBR (T-25/95), Heracles (T-57/95) and Titan (T-64/95) disputethat the transactions referred to in recital 28, paragraph 20, of the contesteddecision amount to an infringement. 3628. CBR states that its purchases of Greek clinker from UMAR in pursuance of theiragreement of 15 July 1988 responded to a real demand. It is clear from the officialminutes of the meeting of its Board of Directors on 4 May 1988 (contesteddecision, recital 28, paragraph 21; documents 33.126/7629 to 7631) that it had todeal with a period of unexpected growth in cement consumption on its naturalmarket. It also claims that it was concerned to honour the clinker export contractswhich it had signed in early 1988 with Scancem. Finally, it explains the reasons forthe difference between the Commission's estimates and its own of the level ofgrowth of its supplies of cement in 1988 (see recital 28, paragraph 21, lastsubparagraph, of the contested decision). It relies also on the comparison (1985) in its reply to the SO illustrating the increase of its supplies of cement and clinkerduring the period from 1988 to 1990. 3629. It maintains that the handwritten record mentioned in recital 28, paragraph 20, ofthe contested decision was drawn up by one of its secretaries. It claims that thatrecord contains clear errors which the Commission does not dispute and whichdeprives it of any evidential value. 3630. Heracles, in addition to the general line of argument set out in paragraph 3554above, stresses the lawful nature of the contract which it concluded with UMARon 19 May 1988. It disputes the connection made in recital 28, paragraphs 20 and21, of the contested decision between that contract and the contract for the transferof clinker signed between CBR and UMAR on 15 July 1988. It points out thatUMAR was a company engaged in the international clinker and cement trade andthat therefore it was solely for UMAR to decide to whom it wished to sell on thequantities of cement and clinker in question. Heracles was not in any way involvedwith that process. Nor has the Commission produced any evidence to suggest thatit was involved. 3631. Titan, in addition to its general line of argument set out in paragraphs 3461 to 3464above, observes that the contract which it signed on 20 August 1988 with Pays BasCement Co. was part of its normal business activity. It claims that the decision,taken quite independently by UMAR, to deliver clinker to CBR cannot beattributed to the existence of an agreement or concerted practice between Titanand CBR. It also points out that, even if CBR could have been under theimpression that it was fulfilling a promise made to the members of the ETF bybuying from UMAR clinker originating from Titan, Titan was unaware of such apromise. 3632. It should be borne in mind that the handwritten record of the CBR Board ofDirectors meeting on 4 May 1988 states that, '[t]hrough the intermediary of the ...company [U]mar ... Mr Celis will draw up a contract relating to the import ofGreek clinker, provided that Greece limits cement exports to Benelux. 3633. According to the statement in that record, CBR intended to make the contract inquestion subject to an undertaking by the Greek producers to limit their directsales of cement on the Benelux markets. Such statements do not however provethat CBR did, in fact, actually obtain a promise to that effect from the Greekproducers, in particular from Heracles and Titan. 3634. It is not disputed that, at that time, CBR had to deal with an increase inconsumption on its natural market. The parties differ only as to the extent of thatincrease (see contested decision, recital 28, paragraph 21, penultimate and finalsubparagraphs). In those circumstances, CBR might have signed its import contract with UMAR on 15 July 1988, despite not being able to obtain an undertaking fromthe Greek producers to limit their direct sales of cement on the Benelux markets. 3635. In recital 28, paragraph 21, penultimate subparagraph, of the contested decision,the Commission refers to the extract from CBR's reply to the SO in which CBRstates that, 'in buying clinker from Greek producers, CBR was hoping to reducethe interest which the importation of cement into Belgium might have had forthem. In the course of the written and oral procedure, the Commission alsopointed out that the import contract signed by CBR was the kind of persuasivemeasure envisaged by the ETF, in which CBR had participated, in order to preventthe destabilisation of the European markets. 3636. However, none of those documents proves that Heracles and Titan promised toreduce their direct sales of cement on the Benelux markets in return for the importcontract signed between CBR and UMAR in July 1988. 3637. In recital 28, paragraph 20, of the contested decision the Commission links thecontract to import Greek clinker, signed on 15 July 1988 by CBR and UMAR, tothe contracts concluded on 19 May 1988 between UMAR and Heracles and on 20August 1988 between Pays Bas Cement Co. and Titan respectively, contracts whichprovided that at least half the quantities concerned was destined for the marketsof the Benelux. At the hearing in Case T-25/95, the Commission particularlyemphasised that the latter two contracts involved subsidiaries of Holderbank, oneof the undertakings which was primarily responsible for the ETF and its activities. 3638. However, even if the Commission were justified in making the connection betweenthe various contracts, there is nothing in the documents relating to those contractsto suggest that, in return for them, Heracles and Titan gave an undertaking, asCBR claims, that they would halt or reduce their direct sales of cement on theBenelux markets. 3639. At the hearing in Case T-25/95, the Commission observed that both thehandwritten record and the official minutes of the meeting of the CBR Board ofDirectors meeting of 4 May 1988 mention the gratitude expressed by the Chairmanof CBR to Mr Celis for the 'positive result of his negotiations. 3640. However, there is no evidence to suggest that the chairman of CBR was therebythanking Mr Celis for having obtained an undertaking from Heracles and Titan tolimit their direct sales of cement on the Benelux markets in return for the importcontract which it was preparing to sign with UMAR. On the contrary, thehandwritten record of the meeting (see paragraph 3632 above) shows that such anundertaking had not yet been obtained. The 'positive result in question couldhave referred to the purchase price negotiated by Mr Celis with UMAR or to thefact that his having opted to import clinker rather than cement warded off the 'possibility of [the Greek producers exerting an] influence over the market (samedocument). 3641. The Commission (defence and rejoinder in Case T-64/95) relies on the content ofthe Zurich/Céligny document in order to establish that Titan participated in theconcerted practice referred to in Article 4(4)(g) of the contested decision (seeparagraph 3500 above). 3642. For the reasons set out in paragraph 3501 above, that document cannot howeverconstitute evidence that the transactions referred to in recital 28, paragraph 20,embodied a concerted practice between CBR, Heracles and Titan. 3643. During the written procedure in Cases T-57/95 and T-64/95, the Commission alsostated that Heracles and Titan had been involved in discussions aimed at resolving,in the interest of all the parties concerned, the problems posed by the importationof cement from Greece. 3644. However, as has already been stated several times (see, in particular, paragraph3507 above), those discussions never had a successful outcome. In any case, noneof the documents referred to in the contested decision show that, in return for thetransactions mentioned in recital 28, paragraph 20, Heracles and Titan gave anundertaking to CBR that they would halt or reduce their direct sales in Europe,and on the Benelux markets in particular. 3645. In view of the foregoing (paragraphs 3439 to 3450 and 3632 to 3644), it must beconcluded that the Commission has not established the existence of a concertedpractice between CBR, Heracles and Titan designed to prevent direct sales by thetwo Greek producers on the European markets. 3646. It follows that Article 4(4)(g) of the contested decision must be annulled. 3647. Accordingly, there is no longer any need to examine the observations which CBR(memorandum of 12 November 1997) and Titan (memoranda of 10 February and18 December 1997) submitted following the measures of organisation of procedurementioned in paragraphs 164 and 168 above, in order to prove that their rights ofdefence were infringed during the administrative procedure in relation to thefinding of the infringement in Article 4(4)(g) of the contested decision. 7. Agreement between Aker, EUROC and Titan referred to in Article 4(4)(h) ofthe contested decision 3648. According to Article 4(4)(h) of the contested decision, Aker, EUROC and Titaninfringed the provisions of Article 85(1) of the Treaty 'from 28 January 1987 to 31December 1990, by participating in an agreement designed to deflect quantities ofcement and clinker produced by Titan to Africa, the United States and the Bahamas and to prevent direct sales of such products by Titan on the Europeanmarkets. 3649. The matters concerning that infringement are set out, in The Facts, in recital 28,paragraph 22, and in the Legal Assessment, in recital 56, paragraph 13, of thecontested decision. 3650. In recital 28, paragraph 22, first subparagraph, the Commission states: 'The document prepared by the working party in Zurich and Céligny (seeparagraph 1 above) mentions Cementa/Norcem among the companies which couldtake part in the absorption of Greek cement. The Blue Circle internalmemorandum of 4 September 1986 (documents 33.126/11026 to 11027) states thatNorcem/Cementa (part of the same Aker/EUROC group as Scancem) are amongthe companies which should participate in the absorption of Greek products. TheAker/EUROC group was represented at two Head Delegates meetings and at ETFmeetings (see points (c), (g), (i), (l) and (o) of recital 25). 3651. It goes on to state (second subparagraph) that Titan and Scancem signed thefollowing contracts: ' on 28 January 1987 (documents 33.126/19621 to 19629) [a contract] on thesupply, from 1 February to 31 December 1987, of 125 000 tonnes of clinkerto Ghana, Liberia and Togo;  on 7 October 1987, [a contract] amended several times by additionalclauses, the most recent dating from 17 November 1989 (documents33.126/19585 to 19620), on the supply, from 1 January 1988 to 31 December1990, of 650 000 tonnes of cement to the United States and the Bahamas;  on 15 October 1987, [a contract] amended several times by additionalclauses, the most recent dating from 15 March 1990 (documents33.126/19631 to 19656), on the supply, from 1 January 1988 to 31 December1990, of 300 000 tonnes of clinker to Ghana, Liberia and Togo. 3652. It compares (third subparagraph) the quantities concerned by those variouscontracts with 'the European producers' intention of absorbing 2 to 3 milliontonnes of products with a view to curbing Greek exports to Europe (see documentsmentioned in paragraphs 1 to 6 above). 3653. In recital 56, paragraph 13, it concludes: 'The contracts concluded between Titan and Scancem (Aker/EUROC) on 28January 1987, 7 October 1987 and 15 October 1987 and their additional clauses (see paragraph 22 of recital 28) embody an agreement between those undertakingsin breach of Article 85(1) from 28 January 1987 to 31 December 1990. The purpose of the contracts was to deflect the quantities concerned to marketsother than the European markets, and this was known to the two parties (seeparagraph 1 to 7 and 22 of recital 28). 3654. Titan (T-64/95), Aker (T-70/95) and EUROC (T-71/95) put forward an argumenton the substance seeking the annulment of Article 4(4)(h) of the contesteddecision. They also complain that the Commission infringed their rights of defencewhen it found the infringement in question in that it did not grant them accessduring the administrative procedure to the full SO and its investigation file, thusdepriving them of allegedly exculpatory evidence. 3655. As to the substance, Titan, in addition to its general line of argument set out abovein paragraphs 3461 to 3464, Aker and EUROC state that the contracts referred toin recital 28, paragraph 22, of the contested decision formed part of the normalbusiness activity of Scancem and Titan. Those contracts, according to Titan, had noanti-competitive purpose. 3656. Titan states that its deliveries of clinker to Scancem for Ghana, Liberia and Togowere justified by the effort to find outlets for clinker produced in its Thessalonikiplant and that its deliveries for the United States were a response to the particularopportunities in that market. Furthermore, Scancem was one of the main cementand clinker traders in the world and therefore a particularly appropriate purchaser. 3657. Aker and EUROC claim that the purchases by Scancem from Titan were to allowScancem to meet the increasing demand for cement and clinker in its operationsoutside Europe. 3658. Titan, Aker and EUROC also complain that the Commission did not examine theprices at which Scancem purchased Titan's product. They add that those priceswere no different from the prices paid by Scancem under the purchase contractsconcluded with Heracles and Halkis, contracts which, although mentioned in theSO, were not deemed to constitute an infringement in the contested decision. 3659. The Court finds that the documents relating to the contracts between Scancem andTitan referred to in recital 28, paragraph 22, of the contested decision do not showthat, in return for them, Titan gave an undertaking to the Aker/EUROC group tohalt or reduce its direct sales on the European markets. 3660. The Commission states that the Zurich/Céligny document mentionedCementa/Norcem among the companies which could take part in the absorptionof Greek cement. It also mentions the internal Blue Circle memorandum of 4September 1986, which identifies Norcem and Cementa as among the companies which were to participate in the absorption of Greek products (see paragraph 3650above). 3661. In that regard, it is worth noting the following extract from the Zurich/Célignydocument (contested decision, recital 28, paragraph 1; document 33.126/18775): 'Absorption of destabiliser's tonnage The opportunity exists in a number of markets for European Producers to arrangeto place tonnage with the destabilising Cement Industry. For example: USA  1st priority ... (4) Cementa/Norcem could offer? 3662. For its part, the internal Blue Circle memorandum of 4 September 1986(documents 33.126/11026 and 11027) states: 'On the carrot side a solution basedon the absorption of 1 million tonnes plus outside Europe by Holderbank, Lafarge,Norcem, Cementa and ourselves etc., is predicated .... 3663. Those extracts show that in mid-1986 Aker and EUROC offered, through theirsubsidiaries Norcem and Cementa, to participate in the absorption of surplusGreek production outside European markets. They do not however prove that thecontracts between Scancem and Titan, mentioned in recital 28, paragraph 22, of thecontested decision were the result of an unlawful agreement between the partiesinasmuch as in return for those contracts Titan promised to halt or reduce its directsales on the European markets. 3664. In recital 28, paragraph 22, third subparagraph, of the contested decision, theCommission cites the record of the ETF meeting on 19 August 1986. It claims thatit shows 'that Scancem was participating in the absorption of Greek products sinceits author complains solely of the fact that the initiatives of certain ETF membershad put Scancem in a weak position in the negotiations with Greek producers. 3665. It should be observed that that record, drawn up by Mr Ulestig (Scancem), statesfirst of all (point 4.1): 'No agreement has been reached with the Greek companies.They have not even been in contact with each other the last month! .... He nextreports the information given by Blue Circle, Lafarge and Holderbank on theirpurchases of product from Heracles and Titan for the United States and Canada,concluding in that respect: 'In summary, although we have not agreed with the Greeks on a take-off agreement, some members, in my opinion, have put us in arather weak position in negotiations. 3666. Those statements show that Scancem feared that the absorption measuresundertaken during the summer of 1986 by certain ETF members with regard toHeracles and Titan might have weakened the position of the European cementproducers in the negotiations they were holding with their Greek counterparts witha view to reaching a collective take-off agreement for their surplus production,negotiations which ultimately failed on account of the great hesitancy of the Greekproducers (see paragraph 3507 above). 3667. They do not show that the contracts signed between Scancem and Titan on 28January, 7 and 15 October 1987 were conditional on Titan's undertaking to halt orreduce its direct sales on the European markets. 3668. Nor is it possible to infer that those contracts were unlawful in nature from the factthat the 'Aker/EUROC group was represented at two Head Delegates meetingsand at ETF meetings (contested decision, recital 28, paragraph 22, firstsubparagraph). That fact is at most evidence that Aker and EUROC acceded tothe agreement setting up the ETF and to the measures discussed at those meetingswith a view to eliminating destabilising imports into Western Europe. It does not,however, prove that in exchange for the abovementioned contracts, Titan gaveAker and EUROC an undertaking that it would halt or reduce its direct sales onthe European markets. 3669. In the light of the Court's analysis of the documents in paragraphs 3531 to 3535above, the Court finds that the connection alleged by the Commission, on the basisof the documents referred to in recital 28, paragraphs 1 to 6, of the contesteddecision, between the quantities concerned by the contracts referred to in recital28, paragraph 22, second subparagraph, of the contested decision and the'European producers' intention of absorbing 2 to 3 million tonnes of products witha view to curbing Greek exports to Europe (contested decision, recital 28,paragraph 22, third subparagraph) does not support the view that those contractswere unlawful. 3670. The Commission (defence and rejoinder in Case T-64/95) relies on two furtherdocuments to show that Titan committed an infringement by participating in thetransactions referred to in recital 28, particularly paragraph 22, of the contesteddecision. 3671. It relies, first of all, on the content of the Zurich/Céligny document (see paragraph3500 above). 3672. For the reasons set out in paragraphs 3501 and 3663 above, that document cannothowever prove that the contracts referred to in recital 28, paragraph 22, embodied an unlawful agreement between Aker and EUROC, on the one hand, and Titan,on the other. 3673. The Commission states, secondly, that Titan was actively involved in the search forsolutions to ensure, in the interest of all the parties concerned, the stability of theCommunity markets. It relies on the various documents referred to in recital 28,paragraphs 1 to 9, of the contested decision. 3674. However, as has already been stated on several occasions (see, in particular,paragraph 3507 above), those discussions never had a successful outcome. In anycase, none of the documents referred to in recital 28, paragraphs 1 to 9, of thecontested decision show that, in return for the contracts mentioned in recital 28,paragraph 22, Titan gave an undertaking to halt or reduce its direct sales on theEuropean markets. 3675. The Commission (defence in Cases T-70/95 and T-71/95) again relies on the recordof the EPC meeting of 13 May 1987, reproduced in recital 24, paragraph 3, secondsubparagraph, of the contested decision. It claims that it reflects the anti-competitive purpose which led Scancem to conclude with Titan the variouscontracts referred to in recital 28, paragraph 22. 3676. However, the extract in question illustrates at most Scancem's continuing uneaseover imports from Greece, and its concern to see joint pressure maintained on theGreek producers. It does not prove that the above contracts embodied a commonanti-competitive concurrence of wills between Aker and EUROC, on the one hand,and Titan, on the other. 3677. In view of the foregoing (paragraphs 3439 to 3450 and 3659 to 3676), it must beconcluded that the Commission has not established that the contracts in questionembodied an anti-competitive agreement between Aker and EUROC, on the onehand, and Titan, on the other, designed to deflect quantities of cement and clinkerproduced by Titan to Africa, the United States and the Bahamas and to preventdirect sales of such products by Titan on the European markets. 3678. It follows that Article 4(4)(h) of the contested decision must be annulled. 3679. Accordingly, there is no longer any need to examine the observations which Titan(memoranda of 10 February and 18 December 1997), Aker and EUROC(memoranda of 10 February 1997) submitted following the measures oforganisation of procedure mentioned in paragraphs 164 and 168 above, in orderto prove that their rights of defence were infringed during the administrativeprocedure in relation to the finding of the infringement in Article 4(4)(h) of thecontested decision.                                                                     Characterisation, as a single and continuous agreement, of the agreements andconcerted practices referred to in Article 4 of the contested decision 3680. In recital 53 of the contested decision, the Commission states that the agreementsand practices described in Chapter 5, on the 'Cembureau Task Force or'European Task Force, proceeded from a 'single and continuous agreement. 3681. It states (same recital, paragraphs 2 and 3): 'Under the single and continuous agreement on non-transhipment to homemarkets, Cembureau and the undertakings specified below entered into a singleand continuous agreement ... consisting of all the measures adopted at themeetings held from 28 May 1986 to the end of May 1987. The concurrence of wills on the part of each participant was expressed at variousmeetings and, in particular, at the meetings of the Head Delegates as well asthrough participation in the various actions undertaken. The agreement has the following features: (1) a Task Force, set up by commonagreement by the participants in the infringement, examined and prepared thevarious dissuasive and persuasive measures and the market regulation measures(see paragraphs 2 to 6 of recital 25); (2) the measures were put for decision to theHead Delegates, who adopted some of them (see paragraph 10, 24 to 32 and 40and 41 of recital 25); (3) the measures were then implemented by the variousparticipants in the Task Force (see recitals 26, 27 and 28). 3682. It concludes (same recital, paragraph 9) that there was a 'single and continuousagreement relating to the setting-up of the Cembureau Task Force or ETF and thevarious measures adopted at the meetings to eliminate imports into WesternEurope and, in particular, to prevent imports of Greek cement into the MemberStates. It also refers (paragraph 14) to the 'single and continuous agreementrelating to the Cembureau Task Force or ETF. 3683. Before examining the arguments raised on that point by the applicants, it shouldbe recalled that, although the various agreements and practices found in Article 4are considered in recital 53 of the contested decision to be the constituent elementsof a single and continuous agreement relating to the ETF, the Commission doesnot find in the operative part of the decision that such an agreement existed. Ashas been stated in paragraphs 2507 to 2511 above, Article 4(1) refers only to theagreement on the setting-up the ETF, not to the single and continuous agreementrelating to the setting-up of the ETF and the measures adopted in the frameworkthereof. The Commission in fact deals separately with the various elements allegedto constitute that single and continuous agreement. 3684. The only inference specifically drawn by the Commission from its conclusions as tothe single and continuous nature of the conduct referred to in Article 4 of thecontested decision is set out in recital 65, paragraph 3(c). In summarising, in itsreasoning relating to the fixing of fines, how the indirect members of Cembureaumentioned in Article 1 implemented the Cembureau agreement it takes thoseagreements and practices into consideration not separately but as being in thenature of the single and continuous 'ETF agreement ('... participated in theagreement relating to the Cembureau or European Task Force) or in conformitywith it ('... participated, within the framework of the Cembureau or European TaskForce). 3685. CBR (T-25/95), Cembureau (T-26/95), Ciments Français (T-39/95), Aalborg(T-44/95), Unicem (T-50/95), Asland (T-55/95), Uniland (T-58/95), Italcementi(T-65/95) and Cementir (T-87/95) submit arguments concerning thecharacterisation, as a single and continuous agreement, of the practices referred toin Article 4 of the contested decision. 3686. One argument is based on the lack of consistency between the SO and thecontested decision. Several applicants dispute the existence of a link between thevarious agreements and concerted practices referred to in Article 4 of the contesteddecision. Some of them deny having participated in the single and continuousagreement relating to the ETF or, at least, dispute the duration of theirparticipation. One argument alleges breach of the principle of equal treatment. 3687. Heracles (T-57/95) and Titan (T-64/95) also submit arguments which go to thesubstance of their participation in the single and continuous ETF agreement.Moreover, in the memoranda which they submitted following the measures oforganisation of procedure mentioned in paragraphs 164 and 168 above, they putforward observations seeking to show that incomplete access to the Commission'sfile in the course of the administrative procedure impaired the exercise of theirrights of defence, inasmuch as the Commission deprived them of access to allegedlyexculpatory evidence. 3688. However, the only practices for which Heracles and/or Titan were held responsible'within the framework of the Cembureau or European Task Force (contesteddecision, recital 65, paragraph 3(c), 17th and 18th subparagraphs) are thosementioned in Article 4(4)(b) to (h) of the contested decision. Since the Court findsin paragraphs 3513, 3545, 3569, 3599, 3617, 3646 and 3678 above that each of thoseprovisions should be annulled, their arguments and observations are now devoid ofpurpose. A  Consistency between the SO and the contested decision 3689. Aalborg claims not to have had the opportunity of expressing a view during theadministrative procedure on the Commission's characterisation, in recital 53 of thecontested decision, of the various agreements and concerted practices referred toin Article 4 as a single and continuous agreement. 3690. It should be pointed out that in the first subparagraph of point 61(h) of the SO theCommission stated: 'The agreements and practices entered into within the Cembureau Task Force orEuropean Task Force (points 16 to 20) must be viewed as the implementation ofa single plan established by Cembureau and [a number of undertakings andassociations of undertakings, including] Aalborg against the Greek producers forhaving infringed the home market rule. The overall measures were decided on 3,4 and 5 June 1986 and implemented in full. These agreements and practices constitute clear infringements of Article 85(1).Their object is to partition national markets despite the removal of economicfrontiers and to prevent consumers from taking advantage of supply from anotherCommunity country. The infringements committed by the undertakings in question as from 1986 are allthe more serious as they were of long duration ... 3691. On reading those passages, Aalborg was able to understand that the Commissionconsidered that the various agreements and practices mentioned in point 61(h) ofthe SO were the result of a 'single and continuous agreement relating to the'Cembureau Task Force or 'European Task Force, intended to eliminateimports into Western Europe from a Community country. 3692. In any event, any mistake by Aalborg on that point could not have harmed its rightsof defence. As has been stated in paragraphs 2506 to 2511 above, the Commission,while stating in the contested decision that the various infringements found inArticle 4 were part of the single and continuous ETF agreement, does not refer tothe ETF agreement as such in the operative part. It considers the constituentelements separately. Aalborg was thus found to have been involved in theagreement on the setting-up of the ETF (Article 4(1)) and in concerted practicesdesigned to cause Calcestruzzi to cease being a customer of the Greek producers,and of Titan in particular (Article 4(3)(a)). Those two objections were clearly madeagainst Aalborg in the SO (see paragraphs 599 to 602 and 2519 to 2524 aboverespectively). 3693. Aalborg's argument must therefore be rejected. B  The single and continuous nature of the infringement referred to in Article 4of the contested decision 3694. CBR, Unicem, Uniland and Italcementi contest the single nature of the variousinfringements found in Article 4 of the contested decision. 3695. CBR states that the ETF was a specific working party, created on the initiative ofa number of undertakings in the cement industry, whose main tasks consisted insupporting lobbying of the Community authorities in order to heighten awarenessof the anti-competitive practices of the Hellenic Republic and to seek othersolutions which complied with Community competition law. It claims that, otherthan the creation of Interciment, the Cembureau head delegates did not take anydecision on the basis of ETF recommendations. Nor did they ratify proposals madeby the ETF. 3696. Unicem states that a link between the pressure brought to bear on Calcestruzzi andthe ETF cannot be established on the basis of the reference in the Zurich/Célignydocument to solidarity between the cement producers. Nor does examination of thedocuments reveal that in the discussions which took place at the ETF and HeadDelegates meetings there was any specific action with regard to the contractconcluded in April 1986 between Calcestruzzi and Titan. Unicem claimsfurthermore that the contracts concluded in April 1987 between the Italian cementproducers and Calcestruzzi/Ferruzzi are not linked at all to the ETF. 3697. Uniland rejects the Commission's assertion that Interciment was the ETF's tool. 3698. Italcementi states that the Commission cannot infer from the documents adducedthat there was a concurrence of wills on the part of the ETF members tocoordinate their conduct on the market. It adds that the Commission establishedan artificial link, unsubstantiated by reliable evidence, between, on the one hand,the contacts among European cement producers in order to settle their jointlobbying activities and, on the other, the unilateral measures adopted by some ofthose producers. 3699. The Court points out that the concept of 'single agreement or 'singleinfringement presupposes a complex of practices adopted by various parties inpursuit of a single anti-competitive economic aim (see, in particular, Rhône-Poulencv Commission, cited in paragraph 1053 above, paragraphs 125 and 126). 3700. In the present case, the Court must therefore ascertain whether the Commissionwas justified in concluding that the agreements and concerted practices referred toin Article 4(1), (2), (3)(a) and (b) of the contested decision were the result of asingle infringement. That is unnecessary as regards the practices to which theCommission refers in Article 4(4), since they have not been proved (see paragraphs3402 to 3679 above). 3701. The purpose of the agreement on the setting-up of the ETF (Article 4(1)) was toevaluate dissuasive and persuasive measures capable of eliminating imports toWestern Europe, primarily those from Greece (see paragraphs 2537 and 2538above). 3702. The aim of the agreement on the setting-up of the Joint Trading Company,Interciment (Article 4(2)) was to implement dissuasive and persuasive measuresagainst countries which threatened to destabilise the markets of the Member States(see paragraph 2978). 3703. The concerted practices referred to in Article 4(3)(a) of the contested decisionwere designed, with anti-competitive intent, to stop Calcestruzzi/Ferruzzi fromcontinuing as a customer of the Greek producers, and of Titan in particular (seeparagraph 3163 above). 3704. The aim of the agreement referred to in Article 4(3)(b) of the contested decisionwas to prevent, with anti-competitive intent, imports of Greek cement byFerruzzi/Calcestruzzi (see paragraph 3356 above). 3705. Those various agreements and concerted practices were thus driven by the sameanti-competitive economic aim, namely the elimination of imports to WesternEurope, primarily those from Greece. That identity of purpose is confirmed by thefact that those various unlawful measures were adopted, or at least discussed,during the series of meetings of, or relating to, the ETF between 28 May 1986 andthe end of May 1987. 3706. In view of the foregoing, it must be concluded that the Commission was justifiedin finding that the infringements referred to in Article 4(1), (2), and (3)(a) and (b)of the contested decision were part of a single agreement relating to the ETFdesigned to 'eliminate imports into Western Europe and, in particular, to preventimports of Greek cement into the Member States (contested decision, recital 53,paragraph 9). 3707. Italcementi states that the various documents on which the Commission based itselfin order to conclude that there was a single and continuous ETF agreement are notofficial documents. They reflect only purely personal views. 3708. The Court points out that the evidence must be assessed as a whole (Case 48/69ICI v Commission, cited in paragraph 636 above, paragraph 68). 3709. In the present case, the various items of evidence adduced by the Commission inorder to conclude that there was a single ETF agreement consist essentially ofminutes of meetings held between May 1986 and May 1987. All those documents,drawn up by different authors, reflect a clear convergence of the unlawful objectives pursued by the measures referred to in Article 4(1), (2), and (3)(a) and(b) of the contested decision. 3710. Italcementi's argument must, accordingly, be rejected. 3711. Italcementi criticises the Commission for using the Zurich/Céligny document, whichhad been finalised prior to the setting-up of the ETF. Moreover, the contesteddecision does not specify the date and place of adoption of that document, or theparties which allegedly adopted it. 3712. In that connection, it should first of all be noted that Italcementi does not disputethe contents of the Zurich/Céligny document, which it also helped to draft duringthe meeting of 4 June 1986 in Zurich (contested decision, recital 25, paragraph 2). 3713. Next, it should be noted that that document, to which the Commission refers inrecital 53, paragraph 3, of the contested decision, forms part of the series ofdocuments referred to in paragraphs 2 and 3 of that same recital. Taken together,those documents make it clear that the intended aim within the framework of thevarious infringements found in Article 4(1) to (3) was identical. 3714. Italcementi's argument must, therefore, be rejected. 3715. Italcementi claims that, contrary to what the Commission states in recital 53,paragraph 5, of the contested decision, the participants in the ETF did not shareout tasks in order to achieve the unlawful objective which they are alleged to havejointly pursued. 3716. The Court points out that in its description of the features of the single andcontinuous ETF agreement (contested decision, recital 53, paragraphs 2 and 3) theCommission does not claim that there was a formal sharing-out of tasks among theparticipants in the ETF. The allusion to 'sharing between the participants of thetasks and actions required to achieve [the single design] (recital 53, paragraph 5)was a response to the observation made during the administrative procedure bysome of the undertakings to the effect that, since they had not participated in theETF meetings or in the measures decided on by it, they could not be heldresponsible for the whole of the conduct relating to the ETF. 3717. In any event, various documents mentioned in recital 25 of the contested decisionshow that there was a sharing of tasks and actions at ETF level. Thus, for example,the Blue Circle memorandum ('Points for action) drawn up following the firstETF meeting (London, 17 June 1986) sets out a series of actions agreed at thatmeeting, indicating for each of them who was responsible for its implementation.At that time, Mr d'Agostino, of Italcementi, was entrusted, in particular, withcoordination of the 'Ferruzzi situation (contested decision, recital 25, paragraph11; document 33.126/18787). As has been stated in paragraph 2600 above, it is apparent from the minutes of the meeting of ETF Head Delegates andrepresentatives on 9 September 1986 at Baden-Baden that it was agreed to createfive subgroups to assist the ETF in its anti-competitive task. Mr Clemente, ofItalcementi, was appointed as a member to the 'Greek export markets subgroupand coordinator for the 'exports to Greece subgroup (contested decision, recital25, paragraph 24; documents 33.126/18858 and 18862). 3718. Italcementi's argument cannot therefore be accepted. C  Participation in the single agreement relating to the ETF 3719. CBR, Cembureau, Ciments Français, Unicem, Uniland, Italcementi and Cementirdispute that they participated in the single agreement relating to the ETF or, atleast, the duration of their participation. 1. CBR 3720. CBR denies having participated in the single ETF agreement. It adds that, in anyevent, most of those who participated in the creation of Interciment, the only ETFproposal adopted by the Head Delegates, decided not to continue to participatein that company beyond 6 November 1986. That should have been regarded asindicating their withdrawal from the agreement. 3721. It should be borne in mind that CBR participated in the following constituentelements of the single agreement relating to the ETF: agreement on the setting-upof the ETF (see paragraphs 2597 to 2603); agreement on the setting-up ofInterciment (see paragraphs 3008 to 3017); concerted practices referred to inArticle 4(3)(a) of the contested decision (see paragraphs 3199 to 3204). 3722. It attended the meeting of 9 June 1986 in Stockholm, at which it was decided, first,to entrust the ETF with examination of the dissuasive and persuasive measuresadvocated by the Zurich/Céligny document in order to eliminate imports intoWestern Europe and, secondly, to create Interciment with a view to implementingthose dissuasive and persuasive measures. Furthermore, it participated in themeeting of ETF Head Delegates and representatives on 9 September 1986 inBaden-Baden, during which the creation, anti-competitive objective and activitiesof the ETF, the creation of Interciment and the negotiations in hand on theFerruzzi situation were dealt with in turn. 3723. It therefore knew that the agreements and concerted practices in which itparticipated at that time formed part of an overall strategy designed to eliminateimports to Western Europe, primarily those from Greece. 3724. In those circumstances, the Commission was justified in considering that CBR hadparticipated in the single agreement relating to the ETF (contested decision, recital65, paragraph 3(c), sixth subparagraph). The fact that CBR did not participate inall the constituent elements of that single infringement cannot exonerate it ofresponsibility in it (see, to that effect, PVC, cited in paragraph 734 above,paragraph 773). 3725. CBR participated in the agreement on the setting-up of the ETF from 9 June 1986to the end of May 1987; the agreement on the setting-up of Interciment from 9June 1986 to 7 November 1988; and in the concerted practices referred to inArticle 4(3)(a) of the contested decision from 9 September 1986 to 15 March 1987. 3726. It therefore participated continuously in the single agreement relating to the ETFfrom 9 June 1986 to 7 November 1988. 2. Cembureau 3727. Cembureau denies any involvement in the single agreement relating to the ETF. 3728. The Court points out that Cembureau's participation in the agreement on thesetting-up of the ETF has been established (see paragraphs 2608 to 2613 above).Cembureau does not deny its participation in the concerted practices referred toin Article 4(3)(a) of the contested decision. 3729. Through Mr Dutron it attended the meeting of 28 May 1986 in Rome, in which itwas agreed to react collectively to the decision of the Greek cement industry toexport cement into Western Europe with a combination of dissuasive andpersuasive measures. It also took part, through Mr Collis, in the meeting of 3 June1986, during which work began on the Zurich/Céligny document, 'the frameworkdocument of the ETF's studies for the evaluation of dissuasive and persuasivemeasures. Finally, it was represented by Sir John Milne, its chairman at the time(contested decision, recital 24, paragraph 3), at the meeting of Head Delegates andETF representatives on 9 September 1986 in Baden-Baden, at which the creation,anti-competitive objective and activities of the ETF, and the negotiations in handon the Ferruzzi situation were dealt with in turn. 3730. It therefore knew that the agreement and concerted practices in which itparticipated at that time were part of an overall strategy designed to eliminateimports to Western Europe, primarily those from Greece. Its responsibility in thesingle infringement relating to the ETF is therefore established. The fact thatCembureau did not participate in all the constituent elements of that singleinfringement cannot exonerate it of such responsibility (see, to that effect, the case-law cited in paragraph 3724 above). 3731. Cembureau participated in the agreement on the setting-up of the ETF from 28May 1986 to the end of May 1987 and in the concerted practices referred to inArticle 4(3)(a) of the contested decision from 17 June 1986 to 15 March 1987. 3732. It therefore participated continuously in the single agreement relating to the ETFfrom 28 May 1986 to the end of May 1987. 3. Ciments Français 3733. Ciments Français claims not to have had an overall view of the strategy to combatGreek exports. Since it was not represented at the meetings of the ETF and did nottake part in any actual measure, it cannot be regarded as a party to the agreementconcerning imports from Greece. 3734. The Court points out that Ciments Français participated in the followingconstituent elements of the single agreement relating to the ETF: agreement on thesetting-up of the ETF (see paragraphs 2628 to 2632 above); agreement on thesetting-up of Interciment (see paragraphs 3035 to 3038 above). 3735. It attended the meeting of 28 May 1986 in Rome, during which it was agreed toreact collectively to the decision of the Greek cement industry to export cementinto Western Europe with a combination of dissuasive and persuasive measures. Atthat meeting, the possible setting-up of a joint venture between the majorEuropean cement producers in order to put the necessary measures into practicewas also raised (contested decision, recital 25, paragraph 1; document33.126/18771). Ciments Français also participated in the meeting of 9 June 1986 inStockholm, in the course of which it was decided, first, to entrust the ETF withexamination of the dissuasive and persuasive measures advocated by theZurich/Céligny document in order to eliminate imports into Western Europe and,secondly, to create Interciment with a view to implementing those measures. 3736. It was not therefore unaware that the agreements in which it participated at thattime formed part of an overall strategy designed to eliminate imports to WesternEurope, primarily those from Greece. 3737. In those circumstances, the Commission was justified in taking the view thatCiments Français had participated in the single agreement relating to the ETF(contested decision, recital 65, paragraph 3(c), 13th subparagraph). The fact thatCiments Français did not participate in all the constituent elements of that singleinfringement cannot exonerate it of responsibility in it (see, to that effect, the case-law cited in paragraph 3724 above). 3738. Ciments Français participated in the agreement on the setting-up of the ETF from28 May 1986 to the end of May 1987 and in the agreement on the setting-up ofInterciment from 9 June 1986 to 7 November 1988. 3739. It therefore participated continuously in the single agreement relating to the ETFfrom 28 May 1986 to 7 November 1988. 4. Unicem 3740. Unicem claims that its participation in only one meeting (that of the 'stick actionssubgroup of 17 March 1987) cannot render it responsible for the various activitiesof the ETF. Only regular attendance at the meetings held in the context of theETF could justify holding it responsible for the activities of that committee (BASFv Commission, cited in paragraph 1852 above, paragraphs 76, 92 and 185).Moreover, it took no part in the actions undertaken in the context of the ETF. Itclaims to have been unaware that a meeting was being held in Rome on 28 May1986. 3741. The Court points out that Unicem participated in the following constituentelements of the single agreement relating to the ETF: agreement on the setting-upof the ETF (see paragraphs 2678 to 2682); concerted practices and agreementreferred to in Article 4(3) of the contested decision relating to the measures todefend the Italian market (see paragraphs 3246 to 3253 and 3345 to 3373). 3742. It had proposed that a member of its staff, Mr Albert, should be a member of twoof the five working subgroups (the 'exchange of defensive experiences subgroupand the 'threats from other countries subgroup) set up at the meeting of HeadDelegates and ETF representatives on 9 September 1986 in Baden-Baden in orderto assist the ETF in its anti-competitive task. Through Mr Albert it participated inthe meeting of the subgroup on 'stick actions on 17 March 1987. At that meetingit reported on the latest developments concerning the agreement between theItalian cement producers and the Ferruzzi group, whose purpose was to avoid thethreat of imports by that group of large quantities of cement from Greece. 3743. It was thus fully aware that the agreements and concerted practices in which itparticipated at that time formed part of an overall strategy designed to eliminateimports to Western Europe, in particular those from Greece. Its responsibility forthe single infringement relating to the ETF is therefore established. The fact thatit did not participate in all the constituent elements of that single infringementcannot exonerate it of such responsibility (see, to that effect, the case-law cited inparagraph 3724 above). 3744. Unicem participated in the agreement on the setting-up of the ETF from 9September 1986 to the end of May 1987, in the concerted practices found in Article 4(3)(a) of the contested decision from 9 September 1986 to 15 March 1987and in the agreement referred to in Article 4(3)(b) from 3 April 1987 to 3 April1992. 3745. It therefore participated continuously in the single agreement relating to the ETFfrom 9 September 1986 to 3 April 1992. 5. Uniland 3746. Uniland objects to the Commission's finding that it is responsible for theinfringement. It points out that the mere attendance by Mr Rumeu at two meetingson the ETF does not in any way lead to the conclusion that it participated in analleged overall agreement which lasted until 1993. It states that the Commissioncannot merely assert that there was a single and continuous agreement involvingall the participants, even where they did not participate individually in each of thepractices adopted by the group. 3747. The Court points out that Uniland participated in the following constituentelements of the single agreement relating to the ETF: agreement on the setting-upof the ETF (see paragraphs 2695 to 2698); agreement on the setting-up ofInterciment (see paragraphs 3069 to 3072); concerted practices referred to inArticle 4(3)(a) of the contested decision (see paragraphs 3199 to 3204 above). 3748. It attended the meeting of Head Delegates and ETF representatives on 9September 1986 in Baden-Baden, during which the creation, anti-competitiveobjective and activities of the ETF, the creation of Interciment and the negotiationsin hand on the Ferruzzi situation were dealt with in turn. 3749. It therefore knew that the agreements and concerted practices in which itparticipated at that time formed part of an overall strategy designed to eliminateimports to Western Europe, primarily those from Greece. 3750. In those circumstances, the Commission was justified in considering that Unilandhad participated in the single agreement relating to the ETF (contested decision,recital 65, paragraph 3(c), 10th subparagraph). The fact that Uniland did notparticipate in all the constituent elements of that single infringement cannotexonerate it of responsibility in it (see, to that effect, the case-law cited inparagraph 3724 above). 3751. Uniland participated in the agreement on the setting-up of the ETF from 9September 1986 to the end of May 1987; the agreement on the setting-up ofInterciment from 9 September 1986 to 7 November 1988; and in the concertedpractices found in Article 4(3)(a) of the contested decision from 9 September 1986to 15 March 1987. 3752. It therefore participated continuously in the single agreement relating to the ETFfrom 9 September 1986 to 7 November 1988. 6. Italcementi 3753. Italcementi claims that the Commission did not specify the date and place ofadoption of the Zurich/Céligny document or the parties which purportedly adoptedit. It claims, furthermore, that the various ETF participants acted independently ofeach other. Any activities pursued by some participants with the object or effect ofrestricting competition could therefore render only those participants liable. 3754. The Court points out that Italcementi participated in all the constituent elementsof the single agreement relating to the ETF: agreement on the setting-up of theETF (see paragraphs 2746 and 2747); agreement on the setting-up of Interciment(see paragraphs 3008 to 3017); concerted practices and agreement referred to inArticle 4(3) of the contested decision relating to the measures to defend the Italianmarket (see paragraphs 3265 to 3270 and 3345 to 3384). 3755. There is no doubt that it was aware of the overall strategy designed to eliminateimports to Western Europe, primarily those from Greece. Its responsibility in thesingle infringement relating to the ETF is clearly established. 3756. Italcementi participated in the agreement on the setting-up of the ETF from 28May 1986 to the end of May 1987; in the agreement on the setting-up ofInterciment from 9 June 1986 to 7 November 1988; in the concerted practicesfound in Article 4(3)(a) of the contested decision from 17 June 1986 to 15 March1987; and in the agreement referred to in Article 4(3)(b) from 3 April 1987 to 3April 1992. 3757. It therefore participated continuously in the single agreement relating to the ETFfrom 28 May 1986 to 3 April 1992. 7. Cementir 3758. Cementir denies having participated in a single agreement concluded in the contextof the ETF. 3759. It should be recalled that Cementir participated in two constituent elements of thesingle agreement relating to the ETF, namely the concerted practices and theagreement referred to in Article 4(3) of the contested decision relating to themeasures to defend the Italian market against imports of cement from Greece (seeparagraphs 3284 to 3289 and 3345 to 3386). 3760. It took part in those two infringements in particular with the two other majorItalian cement producers, Unicem and Italcementi, which, as is apparent from theanalysis set out in paragraphs 3742, 3743, 3754 and 3755, were fully aware of theoverall anti-competitive strategy of which the measures to defend the Italian marketformed part. Unicem and Italcementi must necessarily have informed Cementir ofthe anti-competitive background against which those measures took place. Cementirmust therefore have known that the concerted practices and the agreement inwhich it participated at that time originated in an overall plan designed to eliminateimports of cement into Western Europe, especially from Greece. 3761. Cementir's responsibility in the single agreement relating to the ETF is thereforeestablished. The fact that Cementir did not participate in all the constituentelements of that single infringement cannot exonerate it of such responsibility (see,to that effect, the case-law cited in paragraph 3724 above). 3762. Cementir participated in the concerted practices found in Article 4(3)(a) of thecontested decision from 9 September 1986 to 15 March 1987 and in the agreementreferred to in Article 4(3)(b) from 3 April 1987 to 3 April 1992. It must thereforebe concluded that it participated continuously in the single agreement relating tothe ETF from 9 September 1986 to 3 April 1992. D  Infringement of the principle of equal treatment 3763. Asland claims that the Commission did not give the same treatment to all theundertakings allegedly involved in the ETF activities. The Commission argued, first,that mere involvement in a specific measure implied participation in the single andcontinuous ETF agreement and, secondly, that participation in that agreement wasmerely in the form of involvement in one or other specific measure. Asland citesthe example of Rugby and Castle, where the fact that they were mentioned in thecontracts to purchase cement and clinker from Greece did not lead the Commissionto regard them as parties to the single and continuous agreement in the frameworkof the ETF. 3764. The Court points out that the only infringement alleged against Rugby and Castle'within the framework of the Cembureau or European Task Force (contesteddecision, recital 65, paragraph 3(c), penultimate and last subparagraphs), namelythe concerted practice with Blue Circle referred to in Article 4(4)(a), has not beenupheld (see paragraphs 3402 to 3435 above). On the other hand, it is establishedthat Asland did participate in the agreement on the setting-up of the ETF (seeparagraphs 2687 to 2691 above). 3765. Asland attended the meeting of 28 May 1986 in Rome, in the course of which itwas agreed to react collectively to the decision of the Greek cement industry to export cement into Western Europe by a combination of dissuasive and persuasivemeasures. 3766. It knew, therefore, that the agreement in which it participated formed part of anoverall plan designed to eliminate imports to Western Europe, primarily those fromGreece. 3767. In those circumstances, the Commission was justified in taking the view that Aslandhad participated in the single agreement relating to the ETF (contested decision,recital 65, paragraph 3(c), seventh subparagraph). The fact that Asland participatedin only one of the constituent elements of that single infringement cannot exonerateit of responsibility in it (see, to that effect, the case-law cited in paragraph 3724above). 3768. Asland participated in the agreement on the setting-up of the ETF from 28 May1986 to the end of May 1987. That same period must be regarded as the durationof its participation in the single agreement relating to the ETF. Conclusions 3769. It is apparent from the whole of the foregoing (see paragraphs 2504 to 3768) that:  Article 4(1) of the contested decision must be annulled in its entirety so faras it concerns Cementir;  Article 4(1) must be annulled with regard to CBR, BDZ, Oficemen, Akerand EUROC in so far as it finds that they participated in the agreement onthe setting-up of the ETF before 9 June 1986 and after 31 May 1987;  Article 4(1) must be annulled with regard to Aalborg, Unicem, Uniland andIrish Cement in so far as it finds that they participated in the agreement onthe setting-up of the ETF before 9 September 1986 and after 31 May 1987;  Article 4(1) must be annulled with regard to Cembureau, Dyckerhoff, SFIC,Ciments Français, Heidelberger, Lafarge, Asland, Italcementi, Holderbank,and Blue Circle in so far as it finds that they participated in the agreementon the setting-up of the ETF after 31 May 1987;  Article 4(3)(a) must be annulled with regard to CBR, Dyckerhoff, Aalborg,BDZ, Unicem, Uniland, Oficemen, Irish Cement, Aker, EUROC andCementir in so far as it finds that they participated in concerted practicesdesigned to withdraw Calcestruzzi as a customer from the Greek producers,and from Titan in particular, before 9 September 1986;  Article 4(4)(a) must be annulled in its entirety so far as it concerns Rugby,Castle and Blue Circle;  Article 4(4)(b) must be annulled in its entirety so far as it concerns Titanand Blue Circle;  Article 4(4)(c) must be annulled in its entirety so far as it concerns Titanand Holderbank;  Article 4(4)(d) must be annulled in its entirety so far as it concerns Heraclesand Holderbank;  Article 4(4)(e) must be annulled in its entirety so far as it concerns Lafargeand Titan;  Article 4(2) must be annulled in its entirety so far as it concernsHeidelberger, Unicem, Asland and Cementir;  Article 4(2) must be annulled with regard to Uniland in so far as it findsthat it participated in the agreement on the setting-up of the joint tradingcompany Interciment before 9 September 1986 and after 7 November 1988;  Article 4(2) must be annulled with regard to CBR, Dyckerhoff, SFIC,Ciments Français, Lafarge, BDZ, Oficemen, Italcementi, Holderbank, Aker,EUROC and Blue Circle in so far as it finds that they participated in theagreement on the setting-up of the joint trading company Interciment after7 November 1988;  Article 4(3)(a) must be annulled in its entirety so far as it concerns CimentsFrançais, Heidelberger and Asland;  Article 4(4)(f) must be annulled in its entirety so far as it concerns Lafargeand Heracles;  Article 4(4)(g) must be annulled in its entirety so far as it concerns CBR,Heracles and Titan;  Article 4(4)(h) must be annulled in its entirety so far as it concerns Titan,Aker and EUROC. 3770. The remainder of the pleas examined must be rejected.                                                                     X  The pleas of infringements of Articles 85(1) and 190 of the Treaty and of therights of the defence in that the Commission finds that there were concerted practices within the framework of the ECEC contrary to Article 85(1) of the Treaty and that thevarious applicants concerned participated in them (Article 5 of the contested decision) Preliminary observations 3771. Article 5 of the contested decision finds that FIC, ENCI, Dyckerhoff, SFIC,Aalborg, Alsen-Breitenburg, Nordcement, Unicem, Castle, Oficemen, Irish Cement,ATIC, Italcementi, Cementir and AGCI infringed the provisions of Article 85(1)of the Treaty 'by participating, within the framework of the ECEC, in concertedpractices relating to the exchange of information, the supply and demand situationin the importing third countries, the export prices chargeable, the import situationin the member countries and the supply and demand situation on the homemarkets and designed to prevent incursions by competitors on respective nationalmarkets in the Community. The Commission found that the infringementcommenced on 14 March 1984, except in the case of Castle, Oficemen and ATIC,for which it fixed a commencement date of 1 January 1986. The Commissionfound that all the applicants concerned participated in the infringement until 22September 1989. 3772. All the applicants referred to in Article 5 of the contested decision dispute thatthere was an infringement and they participated in it. ENCI, Aalborg, Alsen-Breitenburg, Nordcement, Unicem, Castle and ATIC also complain of aninfringement of their rights of defence because of inadequate access during theadministrative procedure to the Commission's file, which denied them allegedlyexculpatory evidence concerning the objection upheld in Article 5 of the contesteddecision. Furthermore, ENCI and Italcementi consider that this objection was notset out sufficiently clearly in the SO. Dyckerhoff, Unicem and Cementir alsosubmit that the statement of reasons for the finding of the infringement isinsufficient and thus contrary to Article 190 of the Treaty. Contested decision 3773. The ECEC and the concerted practices found to have existed within the frameworkof that committee are the subject-matter of recitals 30 to 34, 58 and 60 of thecontested decision. 3774. The Commission first of all sets out the background to the establishment of theECEC (recital 30). It states that it is apparent from the Blue Circle note of 9 April1981  not 4 April 1981 as the contested decision wrongly indicates  (recital 30,paragraph 1; documents 31.126/11338 to 11340) that the ECEC and the EPC wereset up following Cembureau's decision to cease running an export committee itself. 3775. The setting-up of the ECEC was decided at a meeting held in Paris on 23 January1979 (recital 30, paragraph 2). The Commission refers to the statutes setting upthe ECEC of 6 December 1979 (recital 31, paragraph 2; documents 33.126/16786to 16789) and of 26 September 1986 (recital 31, paragraph 2; documents33.126/12516 to 12518) and states that according to the statutes the aim of theECEC was to promote, on an informal basis, cooperation between the Europeanproducers concerned with the exports of grey cement to all countries with theexception of the Western European countries and the United States. 3776. The Commission then refers to the various undertakings and associations ofundertakings which it considers to be members of the ECEC, namely FIC, ENCI,Dyckerhoff, SFIC, Aalborg, Alsen-Breitenburg, Nordcement, Unicem, Castle,Oficemen, Irish Cement, ATIC, Italcementi, Cementir and AGCI. Referring to thehandwritten notes of Mr Leboeuf, of Ciments Français, relating to a meeting of theSteering Committee of the ECEC in Brussels on 13 and 14 April 1989 (recital 31,paragraph 3; documents 33.126/18201 to 18204), it explains that 'it was countrieswhich were ECEC members and which decided as they pleased who was torepresent them from among the associations or the companies. 3777. The Commission also emphasises the close links between the ECEC and the EPC(recital 32). It refers in that regard to the statutes of the ECEC of 6 December1979, which provided that two members of the Steering Committee of the ECEChad to be elected from among the members entitled to two or three votes in thePlenary Assembly of the ECEC, that is to say, the large exporters, members of theEPC (recital 32, paragraphs 1 and 2). It adds that even if the statutes of 26September 1986 no longer envisaged a special role for the large exporters in theSteering Committee of the ECEC, EPC information nevertheless continued to becommunicated to the ECEC after September 1986 (recital 32, paragraph 3). 3778. The Commission describes various activities which were performed in theframework of the ECEC, namely exchanges of statistics on exports to non-membercountries of Cembureau (recital 33, paragraph 1); examination of the supply anddemand situation in importing non-member countries (recital 33, paragraph 2);recommendation of reference prices for the exports (recital 33, paragraph 3);examination of the import situation in the member countries of Cembureau (recital33, paragraph 4); and examination of the supply and demand situation on homemarkets (recital 33, paragraph 5). 3779. Lastly, it refers to the dissolution of the ECEC (recital 34). 3780. In the part of the contested decision containing the legal assessment of theactivities of the ECEC the Commission explains that, in order to ensure that theprinciple of not transhipping to home markets was complied with, means ofchannelling the production surpluses had to be found. If there were no outlets forthe production surpluses outside the Community there was a very great risk of the principle of non-transhipment to home markets being violated (recital 58,paragraph 2). 3781. The Commission then refers to three facts (see paragraph 3793 et seq. below) asproof that 'the object and effect of the cooperation within the ECEC was toreinforce the rule that there should be no transhipment to home markets (recital58, paragraphs 3 to 5). 3782. It concludes (recital 58, paragraph 6): 'The concerted practices described in recital 33 relating to examination of theinternal situation in member countries and to exports to third countries constituteinfringements of Article 85(1) from 14 March 1984 to 22 September 1989, thesebeing the dates of the first and last meetings of which the Commission is aware.Through these practices, the ECEC members waived the pursuit of anyautonomous business policy, setting up a system of solidarity and monitoring aimedat preventing any incursions by competitors on to respective home markets withinthe Community. The unlawful nature of the activities of the ECEC referred to in Article 5 of thecontested decision 3783. FIC, ENCI, Dyckerhoff, SFIC, Aalborg, Alsen-Breitenburg, Nordcement, Unicem,Castle, Oficemen, Irish Cement, Italcementi, Cementir and AGCI do not disputethat exchanges of information took place within the ECEC. However, they stressthe fact that the activities of the ECEC aimed to defend the interests of theEuropean cement industry on export markets outside Europe. They consider thatsuch cooperation, which relates solely to markets outside the Community, does notfall within the scope of application of Article 85(1) of the Treaty. They add thatnone of the documents referred to in recitals 30 to 34, 58 and 60 of the contesteddecision prove the existence of any link between the ECEC's activities and a rulethat there should be no transhipment to European home markets. TheCommission's contention necessarily implies that any cooperation on exportsbetween competing undertakings is unlawful. 3784. The Commission, on the other hand, considers that the activities of the ECECdescribed in recital 33 of the contested decision distorted competition within theCommunity (contested decision, recital 58) and affected trade between MemberStates (contested decision, recital 60). According to the Commission, 'the objectand effect of the cooperation within the ECEC was to reinforce the rule that thereshould be no transhipment to home markets by channelling the productionsurpluses (contested decision, recital 58, paragraphs 2 to 5). Consequently, inArticle 5 of the contested decision the ECEC's activities were held to be concertedpractices contrary to Article 85(1) of the Treaty in that they were designed 'to prevent incursions by competitors on respective national markets in theCommunity. 3785. The Court points out that where concerted practices in regard to exports tocountries that are not members of the Community have as their object or effect theprevention, restriction or distortion of competition within the Community and theyare liable to affect trade between Member States, they fall within the scope ofapplication of Article 85(1) of the Treaty (Suiker Unie and Others v Commission,cited in paragraph 651 above, paragraphs 580 and 599 to 601, and CRAM andRheinzink v Commission, cited in paragraph 1335 above, paragraphs 24 to 31). 3786. In the present case, it is therefore necessary to examine whether, as theCommission alleges, the facts found in the contested decision enabled theconclusion to be drawn that the object of the members of the ECEC in that exportcommittee was to reinforce the rule that there should be no transhipment toEuropean home markets. If that was the case, the Commission was entitled to findthat the ECEC's activities were concerted practices contrary to Article 85(1) of theTreaty. 3787. In order to examine that question it is necessary to assess whether the Commissionproved that the cooperation within the ECEC was designed 'to prevent incursionsby competitors on respective national markets in the Community (Article 5 of thecontested decision). 3788. Article 1 of the ECEC statutes of 6 December 1979 and Article 1 of the statutesof 26 September 1986 provide that the object of the ECEC is as follows: 'Topromote on an informal basis cooperation between Western European CementManufacturers interested in export to countries outside Western Europe, excludingWhite, Coloured, Aluminous and Oil Well Cements (documents 33.126/16786 to16789 and 12516 to 12518). Article 2 of those same statutes states, as regards the'Area of Operations that the ECEC 'does not discuss or concern itself in any waywith exports by members ... to west European countries or the United States ofAmerica (same documents). 3789. The minutes of the meeting in Paris on 23 January 1979 (contested decision, recital30, paragraph 2; documents 33.126/12751 and 12752) confirm that the object of theECEC is 'the promotion of export and the exchange of commercial information. An internal memorandum of Ciments Français of 7 March 1989 states also that'the ECEC confines itself to an exchange of statistical information and forecastsby country, dealing solely with tonnages outside Cembureau (contested decision,recital 35, paragraph 6; documents 33.126/4466 and 4467). 3790. It follows that the object of the cooperation within the ECEC was the promotionof exports of various types of grey cement excluding those to Western Europe andthe United States of America. It is not therefore apparent from the above documents that the real object of the members of the ECEC was to reinforce therule that there should be no transhipment to European home markets. 3791. The Commission acknowledges that 'there is in the documents setting up theECEC no direct link between the home market rule and the channelling ofexports (contested decision, recital 58, paragraph 3). It states, however, that thelawfulness of the activities of the ECEC must be assessed in their context. It claimsthat it is clear from several documents that in order to be able to apply the rule ofnon-transhipment to home markets, it was indispensable to know what flows ofcement were intended for exports to non-member countries, so as to ensure thechannelling of production surpluses. In the contested decision (recital 58,paragraph 2) the Commission refers in that regard to Blue Circle's internalmemorandum of 1 December 1983 (contested decision, recital 18, paragraph 2;documents 33.126/11332 to 11334). In the present proceedings, it relies, moreover,on Vicat's notes concerning the ECEC meeting of 11 and 12 September 1985(contested decision, recital 33, paragraph 3; documents 33.126/6139 to 6142). 3792. However, the Court finds that the Blue Circle memorandum of 1 December 1983emanates from an undertaking which was not a member of the ECEC and that itscontent does not display any direct link with the ECEC's activities. Although itrefers to a link between the rule that there should be no transhipment to homemarkets and the channelling of production surpluses, it cannot be presumed, on thebasis of the mere existence of an export committee, that its members intended,through their activities in it, to 'prevent incursions by competitors on respectivenational markets in the Community (Article 5 of the contested decision). As tothe Vicat notes of 11 and 12 September 1985, they prove only that export priceswere recommended in the ECEC, a matter which the applicants concerned do notdispute, and that at that time supply exceeded demand on the export markets, acircumstance which caused prices to fall on those markets. Those notes are not,however, of such a nature as to show that the members of the ECEC intended tochannel their production surpluses in order to reinforce the rule that there shouldbe no transhipment to European home markets. 3793. The Commission submits that the link between the ECEC's activities and the rulethat there should be no transhipment to European home markets is apparent fromthe following three facts (contested decision, recital 58, paragraph 3): first, themembers of the ECEC were direct or indirect members of Cembureau. Consequently, they were all subject to the obligation to comply with the homemarket principle. Second, the members of the EPC, except for Blue Circle, wereindirect members of the ECEC through their national associations. The EPC'sactivity therefore influenced the conduct and activity of the ECEC and its members. The EPC's object was specifically the protection of home markets. Third, it isevident from the documents referred to in recital 33, paragraphs 4 and 5, of thecontested decision that the ECEC's activities were not confined to the overseasexport markets. According to the Commission, at their meetings the members of the ECEC discussed imports and supply and demand in the member countries. The members of the ECEC thus themselves established a link between homemarkets and overseas export markets. 3794. It must be examined whether the Commission was entitled to conclude, on the basisof that evidence, that the object and effect of the cooperation within the ECEC wasto reinforce the rule that there should be no transhipment to home markets. A  The ECEC's members' direct or indirect membership of Cembureau 3795. In the contested decision the Commission states that the members of the ECECwere direct or indirect members of Cembureau. In the course of the presentproceedings, it has pointed to the historical link between Cembureau and theECEC, which, it claims, is apparent from the abovementioned Blue Circlememorandum of 9 April 1981. 3796. The Court finds that that memorandum proves that there was no institutional linkbetween Cembureau and the ECEC. The ECEC was established followingCembureau's decision to cease running an export committee itself (see paragraph3774 above). Although it is correct that the members of the ECEC were all director indirect members of Cembureau, that fact does not in itself prove that the objectand effect of the cooperation within the ECEC was to reinforce the rule that thereshould be no transhipment to home markets. 3797. The Commission was not justified in stating as follows in the contested decision(recital 58, paragraph 3(a)) in regard to the members of the ECEC, on the groundthat they were direct or indirect members of Cembureau: 'They are consequently all under the obligation to comply with the home marketprinciple. Their conduct is accordingly influenced by this obligation, in that theyhave to channel their production surpluses to third countries. 3798. In making that statement the Commission merely presumed what it had to prove,namely the existence of a link between the activities of the ECEC and the rule thatthere should be no transhipment to home markets. Furthermore, it cannot beruled out a priori that some direct and indirect members of Cembureau hadestablished cooperation within the framework of the ECEC that was unconnectedto a rule that there should be no transhipment to European home markets. TheCourt points out in that regard that the ECEC was set up in 1979, four yearsbefore the conclusion of the Cembureau agreement at the Head Delegates meetingof 14 January 1983. 3799. Admittedly, for the parties to the Cembureau agreement which took part in theactivities of the ECEC after the conclusion of that agreement, the information exchanged during ECEC meetings concerning third country markets helped themto channel their production surpluses to non-European destinations and as suchtherefore facilitated the implementation of the Cembureau agreement. Amongstthe members of the ECEC are several direct members of Cembureau (FIC, SFIC,Aalborg, Oficemen, Irish Cement, ATIC, Italcementi, Cementir and AGCI), whoseparticipation in the Cembureau agreement is not in any doubt, as they participatedin the meetings of the Head Delegates at which the Cembureau agreement wasconcluded and/or confirmed (see paragraphs 1342 to 1403 above). 3800. However, that finding does not mean that the cooperation organised within theframework of the ECEC between all its members had as its object thereinforcement of the rule that there should be no transhipment to home markets.The Court points out in that regard that the members of the ECEC includeUnicem and several indirect members of Cembureau, whose participation in theCembureau agreement has not yet been proved. The proof that those undertakingsadhered to the Cembureau agreement is based on their participation in a measureimplementing that agreement (see paragraphs 1305 and 1404 to 1417 above), ameasure whose object was identical to that of the Cembureau agreement (contesteddecision, recitals 46, paragraphs 1 and 2, and 65, paragraph 3, first subparagraph). However, by relying on the presumed accession of those undertakings to the ruleon non-transhipment to home markets because of their direct or indirectmembership of Cembureau in order to prove the unlawful nature of the ECEC'sactivities, the Commission in fact adopted a circular argument. In it, the accessionof undertakings to the Cembureau agreement is considered to be shown by theirparticipation in an agreement or concerted practice having the same object as theCembureau agreement, whereas the same object is proved on the basis ofpresumed accession to the rule on non-transhipment to home markets. 3801. In order to find that the conduct referred to in Article 5 of the contested decisionwas unlawful the Commission therefore had to prove that the activities of theECEC were designed to reinforce the home market rule, without relying on apresumption of accession to that rule by virtue of the ECEC members' direct orindirect membership of Cembureau. Only on that condition could the participationof Unicem and the relevant indirect members of Cembureau in the activities of theECEC be considered to be a clear sign of their accession to the common rule ofnot transhipping to internal markets. 3802. Lastly, if the two other facts adduced by the Commission in recitals 30 to 34, 58and 60 of the contested decision were to prove that the cooperation within theframework of the ECEC had in fact aimed 'to prevent incursions by competitorson respective national markets in the Community (Article 5 of the contesteddecision) and, accordingly, that the cooperation organised within the ECEC and theCembureau agreement had the same object, the ECEC members' direct or indirectmembership of Cembureau would constitute a relevant fact when determining whether the ECEC's activities were a measure implementing the Cembureauagreement. B  Links between the ECEC and the EPC 3803. In the contested decision the Commission emphasises the links allegedly existingbetween the ECEC and the EPC. First, the Steering Committee of the ECECensured a link between the ECEC and the EPC. The Commission refers in thatregard to the statutes of the ECEC of 6 December 1979 which provided that twomembers of the ECEC's Steering Committee were to be elected from amongst themembers entitled to two or three votes in the plenary assembly of the ECEC, thatis to say, from amongst the large exporters, who were members of the EPC. Inorder to prove the existence of an institutional link between the ECEC and theEPC it stated during the present proceedings, first, that the two export committeeshad a common origin, as is apparent from the Blue Circle memorandum of 9 April1981 (contested decision, recital 30, paragraph 1; documents 33.126/11338 to 11340)and, second, the fact that the ECEC and the EPC had a joint secretariat, namelythe ECMEC. It also places weight on the fact that information concerning theEPC was communicated to the ECEC (contested decision, recital 32, paragraph 2). Thus, the record of the meeting in Paris on 23 January 1979 (contested decision,recital 30, paragraph 2; documents 33.126/12751 and 12752) states: 'The largestexporters will continue to meet from time to time and their points of view oncommercial problems will be shared with the other members of the [ECEC]through their representatives on this Committee. In the contested decision (recital32, paragraphs 2 and 3) the Commission quotes some examples of such exchangesof information. Even if there were no longer any 'institutional link between theECEC and the EPC by virtue of the ECEC's statutes of 26 September 1986 whichno longer provided for a special role for the large exporters in the SteeringCommittee of the ECEC, it is apparent, according to the Commission, that fromtime to time EPC information continued to be communicated to the ECEC evenafter 26 September 1986 (contested decision, recitals 32, paragraph 3, and 58,paragraph 3(b)). 3804. Since the Commission considered that the EPC's rule was non-transhipment tointernal markets, it takes the view that the links between the EPC and the ECEC'contaminated the latter's activities. 3805. The Court must first examine whether the various items of evidence on which theCommission relied in the contested decision (recital 32) enable the conclusion tobe reached that the links between the EPC and the ECEC were such that the EPCmust have influenced the ECEC's conduct. 3806. In that regard, the Court finds, having regard to the evidence to which theCommission refers in the contested decision, that the members of the ECEC always took the view that the characteristics and identity of their export committee wereindependent of those of the EPC. 3807. The minutes of the meeting of the ECEC of 22 March 1985 (contested decision,recital 32, paragraph 2; documents 33.126/14289 to 14294) states: 'The identity and character of ECEC is different from EPC or CMA [seeparagraph 1040 above] or even Cembureau. ECEC has served us well by providingthe forum for members to meet each other, discuss business together and exchangeinformation on prices and statistics as well as give us a better assessment ofcompetitive market situations. 3808. The minutes of the meeting of the ECEC of 23 January 1986 (contested decision,recital 32, paragraph 2; documents 33.126/12667 to 12674) confirm: 'EPC feels that they are a completely separate body. ... EPC takes the view thatthey like to have few members as restricted numbers of participants facilitatediscussion. 3809. It is thus apparent that the special features of the ECEC in comparison with theEPC were highlighted by the members of the ECEC themselves. 3810. Moreover, the documents in the file and in particular the minutes of the meetingsof the Steering Committee of the ECEC of 21 February 1985 (contested decision,recital 32, paragraph 2; documents 33.126/14266 and 14267) and 22 January 1986(ibidem; documents 33.126/12614 to 12616) and of the ECEC meeting of 23January 1986 (ibidem; documents 33.126/12667 to 12674) reveal the existence ofsome tension between the ECEC and the EPC. They show that the members ofthe ECEC sought to establish cooperation with the EPC which was refused by themembers of the EPC. The memorandum of Ciments Français, a member of theEPC, of 28 May 1986 (contested decision, recital 32, paragraph 3; documents33.126/18218 and 18219) explains that the relations between the ECEC and theEPC were 'difficult and that there was even a 'lack of confidence between thetwo committees. A limited concession was nevertheless made to the ECEC. Thus,the abovementioned Ciments Français memorandum mentions that a request wasmade to the chairman of the EPC that Mr Gac, secretary of the ECMEC, whichconstituted a joint secretariat of the ECEC and the EPC (contested decision, recital30, paragraph 3) be 'authorised to give the ECEC information relating generallyto the members of the ECEC that had no commercial consequence (conditionsregarding prices, competition, etc.) that was brought together at the level ofcountries and not at that of individual companies. However, the same note statesthat it is undesirable that 'a representative of the Policy [namely the EPC] reportson the activity of that body [to the ECEC] because one organisation does notdepend on the other and it is not appropriate to make it materialise. 3811. In those circumstances, the Commission cannot allege that the existence of a linkbetween the ECEC and the EPC at the level of the Steering Committee of theECEC and the existence of a joint secretariat to the two committees influenced theECEC's activities. 3812. It is still necessary to examine whether the information concerning the EPC whichwas actually communicated to the ECEC shows that the object of the ECEC wasnon-transhipment to internal markets. Recital 32, paragraphs 2 and 3, of thecontested decision refers in that regard to various records of meetings of the ECECand of its Steering Committee, namely the records of the ECEC's meetings of 14March 1984 (documents 33.126/14257 to 14262), 11 September 1984 (documents33.126/14303 to 14309), 14 December 1984 (documents 33.126/14310 to 14315), 22March 1985 (documents 33.126/14289 to 14294), 23 January 1986(documents 33.126/12667 to 12674) and 23 September 1988(documents 33.126/12627 to 12634), the minutes of the ECEC SteeringCommittee's meetings of 21 February 1985 (documents 33.126/14266 and 14267),22 January 1986 (documents 33.126/12614 to 12616 and 12667 to 12674), 10 June1986 (documents 33.126/12607 to 12610) and the handwritten notes of Italcementiconcerning the meeting of the ECEC's Steering Committee on 22 September 1988or on the ECEC meeting of 23 September 1988 (documents 33.126/3418 to 3421). 3813. First of all, the record of the ECEC meeting of 14 March 1984 states, in thechapter 'Report from the Policy Committee, that the ECEC found that 'businesshad sharply increased in the course of the year in the Mediterranean and hadimproved in the Red Sea Markets but declined in the Gulf. Other Marketsrecorded a substantial improvement. The same document states: 'Relationsbetween East and West are difficult ... The contacts between individual companies,however, ... were very useful and certainly helped to achieve an improved pricelevel. There was an East-West meeting in Singapore .... In the light of thosestatements, the Court finds that the information communicated by the EPC to theECEC during the ECEC meeting of 14 March 1984 referred exclusively to exportsto non-Community countries. In any event, it is not possible to discern any linkin that document between the information communicated during that meeting andany reinforcement within the ECEC of the rule that there should be notranshipment to internal markets. 3814. The record of the ECEC meeting of 11 September 1984 indicates that there waslittle to report in regard to the EPC. Only the date of the next EPC meeting wasgiven. The record of the ECEC meeting of 14 December 1984 mentions, in regardto the EPC, only the fact that a meeting took place between the chairmen of theECEC and of the EPC concerning the relations between the two committees. Those documents do not demonstrate that the activities of the ECEC aimed toreinforce the rule that there should be no transhipment to internal Europeanmarkets. 3815. The record of the ECEC meeting of 22 March 1985 contains an item on the EPC. It is clear from it that a report was made on the situation of the export marketsand that discussions took place on the formation of the CMA and on the future ofthe EPC after the formation of the CMA. However, no information reportedduring that meeting was brought into the context of the internal European market. 3816. The record of the Steering Committee of 21 February 1985 mentions that at 'thelast EPC meeting held on 14 February 1985 pressure of time prevented a discussionof the relationship between ECEC and EPC ... The participants authorised MrCouniotakis to continue his correspondence with the chairman of EPC, to bringabout a closer, reciprocal cooperation of [the] two organisations. The informationcommunicated during that meeting is not of such a nature as to show that theunderlying rule of cooperation in the ECEC was the reinforcement of the rule thatthere should be no transhipment to home markets. 3817. As the Commission states in the contested decision (recital 32, paragraph 2), therecords of the meeting of the Steering Committee of the ECEC on 22 January 1986and of the meeting of the ECEC on 23 January 1986 show that there wasapparently some tension between the ECEC and the EPC (see paragraph 3810above). It emerges from the record of the ECEC's Steering Committee of 10 June1986 that the chairman of the ECEC tried to overcome the reluctance of the EPCto communicate information to the ECEC. However, none of those records showthat during the meetings in question information was communicated concerning theEPC, information which would show that the cooperation within the ECEC aimedto reinforce the rule that there should be no transhipment to European homemarkets. 3818. Even though the new statutes of the ECEC of 26 September 1986 did not providefor any special role of the large exporters in the Steering Committee, someinformation of the EPC was, as the Commission states (contested decision, recital32, paragraph 3), still being communicated to the ECEC after 1986. 3819. Thus, the record of the ECEC meeting of 23 September 1988 indicates that, undera general agreement between the ECEC and EPC chairmen, information on themeetings with Far East producers were available to ECEC members. As to thehandwritten Italcementi notes on the ECEC Steering Committee meeting on 22September 1988 or on the ECEC meeting of 23 September 1988, they confirm thatEPC information had been communicated to the ECEC. Italcementi noted: 'EPC 25% in the first three months  1988 trend  Total EPC 10 mil. Hispacement,Heracles, Valenciana, Titan ~ 7 mil.  Ciments Français, Lafarge, Norcem,Cementos del Mar, Hornos Ibéricos, Rezola, Cementa, Blue Circle, Halkis ~ 3mil. and 'Hispacement 1.1 mil.; Heracles 2.8 mil. ton; Titan 1.8 mil.; Valenciana1 mil.  All destinations 10 mil. ('EPC  25% nei primi tre mesi  1988 trend Total EPC 10 mil. Hispacement, Heracles, Valenciana, Titan ~ 7 mil.  Ciments Français, Lafarge, Norcem, Cementos del Mar, Hornos Ibéricos, Rezola, Cementa,Blue Circle, Halkis ~ 3 mil. and 'Hispacement 1.1 mil.; Heracles 2.8 mil. ton;Titan 1.8 mil.; Valenciana 1 mil.  All destinations 10 mil.) As the Commissionobserves (contested decision, recital 32, paragraph 3, these are data exchanged inthe EPC which were communicated to the ECEC. There is an explicit referenceto the EPC in the handwritten notes of Italcementi, a member of the ECEC butnot of the EPC. 3820. It is, however, apparent from the minutes of the ECEC meeting of 23 September1988 that during that meeting the ECEC members evaluated supply and demandon the export markets outside the Community for the years 1988 and 1989. In thatcontext, the information communicated by the EPC to the ECEC that wascontained in the handwritten Italcementi notes were of obvious use to the membersof the ECEC since they gave an indication as to exports by EPC members in 1988. Nevertheless, neither the handwritten Italcementi notes nor the minutes of theECEC meeting of 23 September 1988 support the conclusion that the ECEC'sactivities aimed to preserve internal markets through channelling surplusproduction. The documents in question do not contain any evidence of such anature as to show that the information communicated by the EPC to the ECECconcerning the overseas export markets were connected with the protection ofinternal European markets. 3821. Even if it is accepted that non-transhipment to home markets was the ruleunderlying cooperation in the EPC, the documents referred to in recital 32 of thecontested decision do not therefore support the conclusion that the links whichexisted between the ECEC and the EPC had influenced the activities of the ECECin such a way that the members of the ECEC had adopted the rule of nottranshipping to internal markets for their activities within the ECEC. C  ECEC's activities not confined to the overseas export markets 3822. The Commission submits that the activities of the ECEC were not confined to theoverseas export markets. In the contested decision it acknowledges (recital 58,paragraph 3(c)): '... The ECEC's main activities are the compiling and distributionof information on sales in the various export markets in third countries. However,it considers (ibidem) that '[Those activities are] closely connected to the ECECmembers' concerns regarding home markets. Knowledge of such data reassures theECEC members that production surpluses are being effectively channelled. TheECEC members are thus assured that the surpluses will not by and large go to theEuropean markets. In support of its arguments the Commission refers to thedocuments cited in recital 33, paragraphs 4 and 5, of the contested decision. 3823. The Court must examine whether the latter documents show a concern on the partof the ECEC members to channel production surpluses in order to 'reinforce the rule that there should be no transhipment to home markets (contested decision,recital 58, paragraph 5). 3824. As regards the documents referred to in recital 33, paragraph 4, of the contesteddecision, the minutes of the ECEC meeting of 22 March 1985 (documents33.126/14289 to 14294) states: 'Blue Circle buys 400 000 of bulk from DDR. EastGerman marketing is aggressive and price of bags may come down to US $ 14-15f.o.b.. 3825. The Commission cannot, however, rely on those minutes in order to prove that thecooperation within the ECEC aimed to reinforce the rule that there should be notranshipment to home markets through the channeling of production surpluses. The minutes only make it clear that Blue Circle is an importer of cement. Theextract quoted is not about the need to export surplus production in order toensure compliance with the rule that there should be no transhipment to homemarkets. 3826. Furthermore, the Commission cannot allege in general terms (contested decision,recital 33, paragraph 4) as follows: 'At the following plenary meetings (documents33.126/12617 to 12674), each member reports on cement imports into his country,usually from the East European countries. The minutes of the ECEC meetingsof 18 April 1986 (documents 33.126/12665 and 12666), 11 March 1988(documents 33.126/12635 to 12641), 23 September 1988 (documents 33.126/12627to 12634), 14 April 1989 (documents 33.126/12622 to 12626) and 22 September1989 (documents 33.126/12617 to 12621) do not contain anything to show thatduring those meetings the ECEC members exchanged information on cementimports into their countries. However, at the ECEC meetings of 23 January 1986(documents 33.126/12667 to 12674), 18 April 1986 (documents 33.126/12660 to12664), 26 September 1986 (documents 33.126/12654 to 12659), 27 March 1987(documents 33.126/12648 to 12653) and 25 September 1987(documents 33.126/12642 to 12647), some members of the ECEC gave an accountof imports into their country of cement from Eastern Europe, Asia and Tunisia. 3827. The Court finds that none of the minutes cited in the previous paragraph prove alink between imports from non-member countries and the principle of non-transhipment to home markets. Thus, none of those minutes refers to the need toexport production surpluses or to take retaliatory measures against the imports. Furthermore, it is clear from those documents that the discussions relating toimports from non-member countries took place in the context of the competitionwhich the exports from those countries represented for exports from countries ofthe ECEC on the overseas export markets. In any event, the mere fact that onsome occasions the situation of imports from non-member countries was examineddoes not prove that 'the object and effect of the cooperation within the ECEC wasto reinforce the rule that there should be no transhipment to home markets(contested decision, recital 58, paragraph 5). 3828. As regards the documents referred to in recital 33, paragraph 5, of the contesteddecision, it is true, as the Commission submits, that some minutes refer to someinformation on the situation in the member countries. However, the mere mentionof an item of information relating to an internal market of the Community at ameeting of the ECEC or of the ECEC Steering Committee does not necessarilyprove that the activities of the ECEC aimed to 'reinforce the rule that there shouldbe no transhipment to home markets (contested decision, recital 58, paragraph 5)or, in other words, 'to prevent incursions by competitors on respective nationalmarkets in the Community (Article 5 of the contested decision). The Court musttherefore examine whether the Commission was entitled to conclude that theinformation exchanged regarding internal markets was linked to the principle ofnon-transhipment to home markets. 3829. In recital 33, paragraph 5 of the contested decision the Commission refers to fivedocuments, namely the minutes of the ECEC Steering Committee of 26 March1987 (documents 33.126/12594 to 12598) and 10 March 1988 (documents33.126/12579 to 12581), the Italcementi notes on the ECEC Steering Committeemeeting of 22 September 1988 or on the ECEC meeting of 23 September 1988(documents 33.126/3415, 3416 and 3419), the Italcementi notes on the ECECSteering Committee of 16 December 1988 (documents 33.126/3401 and 3402) andthe minutes of the ECEC Steering Committee meeting of 13 April 1989(documents 33.126/12566 to 12569). 3830. The minutes of the ECEC Steering Committee of 26 March 1987 state that in 1986exports declined by 24%: 'The decline was particularly sharp in Egypt where ourmembers delivered less than half of the 1985 volume. Saudi Arabia continued itsdownward trend. In West Africa the change was mainly in clinker which declinedby 300 000 tonnes. They also state that Spain, France and Turkey experienced aparticularly sharp decline. In regard to Spain they observe: 'Spain enjoyed a sounddemand in the home market which compensated partially for the lost exports. TheSpanish industry has reduced its capacity. 3831. The minutes of the Steering Committee of 10 March 1988 explain: 'The continuingSpanish decline [in exports] is a matter of policy. The Spanish producers feel thata continuing high level of production serves no useful purpose commercially orpolitically and therefore are determined to keep their export at a minimum. 3832. The minutes referred to in the two preceding paragraphs do not support theconclusion that the members of the ECEC aimed to channel their productionsurpluses in order to reinforce the rule that there should be no transhipment toEuropean home markets. They only contain information relating to one membercountry of the ECEC, namely Spain. If the object of the ECEC had been tochannel production surpluses, the members of the ECEC Steering Committee, inthe face of the considerable drop in the exports of ECEC members on the worldmarkets to which the above minutes refer, would also have been inclined to discuss, at their meetings of 26 March 1987 and 10 March 1988, the other home marketsof the Community and not merely the Spanish market, which was the very marketwhich did not present any problem as regards the rule that there should be notranshipment to home markets because it enjoyed considerable domestic demandand was experiencing a reduction in capacity. 3833. The Court points out that according to its statutes the aim of the ECEC wascooperation between the European producers concerned with exports of varioussorts of grey cement to the world markets (see paragraph 3788 above). In thatcontext, the Spanish member of the Steering Committee wished to explain to theother members the reasons for the lower representation of the Spanish producerson the overseas export markets. In any event, the Commission does not explain inthe contested decision how the exchange of information referred to in the extractsfrom the minutes of the ECEC Steering Committee of 26 March 1987 and 10March 1988 was intended to reinforce the rule that there should be notranshipment to home markets. 3834. In those circumstances, the minutes of 26 March 1987 and 10 March 1988 do notprove that the activities of the ECEC were unlawful. 3835. The Italcementi notes on the meeting of the ECEC or of the ECEC SteeringCommittee of 22 and 23 September 1988 refer to the following:  'The floating silo which was in the port of Brest has moved off, apparentlyto Algeria following probable agreements with Lafarge: the Gizan floatingsilo is still in the port of Sète and is welcomed by the dockers who wouldlike to take revenge for the fact that Lafarge has closed a cement plant inthe region from which cement was exported ('il silo flottante, che eraall'ancora nel porto di Brest, a seguito di probabili accordi con Lafarge haripreso il mare diretto apparentemente verso Algeri; il silo flottante Gizanè sempre fermo in rada nel porto di Sète; detta unità sembrerebbe beneaccolta dalla compagnia portuale, la quale vorrebbe nella fare uno sgarboalla Lafarge rea di aver chiuso una cementeria in zona, dalla quale venivaesitato cemento in esportazione);  'Blue Circle is buying clinker from the Lebanon (Holderbank) for theUnited Kingdom; it is also buying in Belgium. ('Blue Circle acquistaclinker dal Libano (cementeria Holderbank) per U.K.; Tipo quasi a bassotenero in alkali acquista anche dal Belgio.) 3836. Those statements must be compared with the paragraph in the minutes of theECEC meeting of 23 September 1988 (documents 33.126/12627 to 12634) whichstates, under the heading 'Importing Terminals: 'Mr Torrella requested that a revised list of floating terminals is prepared anddistributed to members. The information on terminals is obviously held byindividual members who were therefore requested to forward such information tothe Secretariat. The information will be compiled and distributed to all members. 3837. Although the Italcementi notes relating to the meetings of 22 and 23 September1988 mention a fact concerning the Community market, namely that Blue Circleis importing into the United Kingdom cement from the Lebanon and Belgium, theyare not of such a nature as to prove that the members of the ECEC intended,through their cooperation in that body, to reinforce the rule that there should beno transhipment to home markets by channelling their production surpluses. AsBlue Circle was importing cement, it was clearly not experiencing problems ofsurplus production. 3838. The Italcementi notes on the ECEC Steering Committee meeting of 16 December1988 state that the United Kingdom would have to import 2 million tonnes ofcement and clinker in 1989. The author of the notes comments that if Italcementiwere 'authorised to act like Intertrading  which has been translated in thecontested decision by 'authorised to act as a marketing company  it couldinterpose itself in the supplies for the United Kingdom, for example with Yugoslavcement. 3839. During the present proceedings the Commission has stressed the use of the word'authorised in the Italcementi notes. It claims that they show that, in theframework of the ECEC, exports to the other member countries were subject toprior authorisation, which proves that the rule underlying cooperation in the ECECwas that there should be no transhipment to home markets. 3840. On the other hand, in its reply of 23 June 1998 to a written question from theCourt Italcementi explained, with supporting documentary evidence, that it had setup Intertrading on 16 November 1988 in order to be present on the internationalcement trading market. However, at the time when the notes on the meeting ofthe ECEC Steering Committee of 16 December 1988 were drawn up, that is to sayon 21 December 1988, Intertrading had not yet been registered in the register ofcompanies, a precondition for carrying on business activities. At that time,therefore, Intertrading was not yet 'authorised to operate. 3841. The explanation submitted by Italcementi must be accepted. The use of a capitalletter in the name 'Intertrading in the notes of the ECEC Steering Committee of16 December 1988 shows that it is a reference to a company. Italcementi hasproved that Intertrading was registered in the register of companies on 9 January1989 (Appendix 3 to the reply of 23 June 1998). From that date that company wastherefore 'authorised to carry on commercial activities. Consequently, it cannotbe inferred from the use of the word 'authorised in the Italcementi notes on themeeting of the ECEC Steering Committee of 16 December 1988 that the object of the ECEC was to reinforce the rule that there should be no transhipment toEuropean home markets. 3842. The Court finds next that the notes in question show that it was necessary for theUnited Kingdom to import cement in order to satisfy its internal demand, anecessity which implies that on that market supply was less than demand. The samenotes also show that Italcementi was not suffering problems of surplus productioneither, since it saw an opportunity in that situation to export Yugoslav cement tothe United Kingdom. 3843. They are not therefore of such a nature as to show that the object of the ECEC'sactivities was to channel production surpluses in order to reinforce the rule thatthere should be no transhipment to home markets. 3844. Finally, the minutes of the ECEC Steering Committee meeting of 13 April 1989states: 'The French clinker exports are being reduced as the capacity is limited, whilethere is a strong demand in the attractive nearby markets. While the Frenchexports to countries outside Western Europe declined, the first quarter of 1989recorded an 8% increase in combined local and export sales. 3845. Similarly, the handwritten notes of Mr Leboeuf, of Ciments Français, relating to theplenary session of the ECEC of 14 April 1989 in Brussels (contested decision,recital 31, paragraph 3; documents 33.126/18201 to 18204) state that the decline inexports of cement in '1988 is more the consequence of a lack of availability inEurope on account of good national markets and a preference for favouring intra-European trade at better prices than on the overseas export markets, than it is ofstrong foreign competition. 3846. The content of those two documents is at variance with the Commission'scontention that 'the object and effect of the cooperation within the ECEC was toreinforce the rule that there should be no transhipment to home markets(contested decision, recital 58, paragraph 5) by the 'channelling of productionsurpluses (recital 58, paragraphs 2 and 3). The exports to the non-Europeanmarkets were reduced and channelled towards Europe. No opinion is expressedon that state of affairs in the abovementioned documents concerning the meetingsof 13 and 14 April 1989, although Mr Leboeuf's notes state that 'It may be ... thatglobally the total world demand for exports is difficult to satisfy, all the morebecause new production plants are becoming rare. 3847. It follows that the Commission cannot allege, as it did in the contested decision,that the 'concerted action [in the ECEC] influenced [the] business decisions [of themembers of the ECEC] regarding the home markets, since, if there had been nosuch concerted action and if they had not been certain of the quantities exportable and the prices chargeable, they could have decided to market more products in theMember States, thus altering the structure of intra-Community trade (recital 58,paragraph 4) and that 'the ECEC members are thus assured that the surpluses willnot by and large go to the European markets (recital 58, paragraph 3). It is clearfrom the documents referred to in paragraphs 3844 and 3845 above that when theprices in Europe were higher than the prices on the overseas export markets, themembers of the ECEC preferred intra-European trade. 3848. It follows from the foregoing that the Commission has not proved that thediscussions which occasionally took place during the plenary meetings of the ECECor the meetings of the Steering Committee of the ECEC on imports into themember countries from Eastern countries (contested decision, recital 33, paragraph4) and on the home markets (recital 33, paragraph 5) were linked to the rule thatthere should be no transhipment to home markets. None of the documents refers,even implicitly, to a need to channel production surpluses. The references to thehome markets of the Community either concern the problems of under production,since they show that some European producers (Blue Circle and Italcementi) wereenvisaging importing cement, or they provide explanations for a reduction inSpanish exports outside Europe. Furthermore, two documents, namely the minutesof the meeting of the ECEC Steering Committee of 13 April 1989 and thehandwritten notes of Mr Leboeuf, of Ciments Français, relating to the plenarysession of the ECEC of 14 April 1989 in Brussels are even at variance with theCommission's contention that 'the object and effect of the cooperation within theECEC was to reinforce the rule that there should be no transhipment to homemarkets (contested decision, recital 58, paragraph 5) by 'channelling exports(recital 58, paragraphs 2 and 3). Conclusions 3849. The documents referred to in recitals 31 to 34, 58 and 60 of the contested decision,even considered as a whole, do not establish that the members of the ECEC aimed,in the framework of their cooperation within the ECEC, to channel theirproduction surpluses in order to reinforce the rule that there should be notranshipment to home markets. 3850. Article 5 of the contested decision must be annulled inasmuch as the activitieswithin the ECEC were considered in that article to be an infringement of Article85(1) of the Treaty on the ground that they were designed to 'prevent incursionsby competitors on respective national markets in the Community (contesteddecision, recital 58, paragraphs 5 and 6), and it is not necessary to examine theother pleas and arguments of the applicants concerned.                                                                     XI  Pleas of infringements of Articles 85(1) and 190 of the Treaty and of the rightsof the defence in that the Commission finds that there was a concerted practice withinthe framework of the EPC contrary to Article 85(1) of the Treaty and that the variousapplicants concerned participated in it (Article 6 of the contested decision) Preliminary observations 3851. Article 6 of the contested decision states that Lafarge, Titan, Heracles, Halkis,Ciments Français, Blue Circle, Hispacement, Hornos Ibéricos, Valenciana and itssubsidiary Cementos del Mar infringed the provisions of Article 85(1) of theTreaty 'by participating, within the framework of the EPC, in a continuousconcerted practice involving the examination of the situation on Communitymarkets, the sharing of third-country markets, the setting of prices for productsintended for overseas export, the exchange of individualised data on exportavailabilities and on actual exports to third countries and designed to preventincursions by competitors on respective national markets in the Community. 3852. The Commission fixed the starting date of that infringement at 1 July 1981, exceptin the case of the Spanish undertakings, where the starting date was fixed at 1January 1986. The infringement continued until 19 May 1989 in the case of all theundertakings concerned, with the exception of Blue Circle and Ciments Français,where the dates on which the infringement came to an end were fixed at 12October 1987 and 17 February 1989, respectively. 3853. Ciments Français (T-39/95), Lafarge (T-43/95), Valenciana (T-52/95), Heracles (T-57/95), Titan (T-64/95), Hornos Ibéricos (T-69/95), Blue Circle (T-88/95) andHalkis (T-104/95) deny both that the infringement in question existed and that theyparticipated in it. Valenciana, Hornos Ibéricos and Blue Circle also complain thatthere was a breach of their rights of defence in so far as they were not givensufficient access to the Commission's file during the administrative procedure,which denied them allegedly exculpatory evidence relating to the objection upheldin Article 6 of the contested decision. Hornos Ibéricos and Halkis further contendthat the statement of reasons for the finding of the infringement referred to inArticle 6 of the contested decision is insufficient and thus contrary to Article 190of the Treaty. Contested decision 3854. The EPC and the concerted practice found to have existed within the frameworkof that committee are the subject-matter of recitals 30, 35 to 37, 59 and 60 of thecontested decision. 3855. The Commission first describes the history of the establishment of the EPC (recitals30 and 35). Cembureau abandoned its export committee owing to the '[Commission's] distaste for cartels of any sort (contested decision, recital 30,paragraph 1; documents 33.126/11338 to 11340), which led to the formation of the'London Club. The Commission observes that in 1978 the large cement exportersfelt that they should have separate meetings from the 'London Club andestablished the EPC (recital 30, paragraph 2). The 'London Club was an informalcommittee of chief executives (recital 35, paragraph 2). 3856. The Commission then refers to the various undertakings which it considers to havebeen members of the EPC, including Ciments Français, Lafarge, Valenciana,Heracles, Titan, Hornos Ibéricos, Blue Circle and Halkis (recital 35, paragraph 3). The Commission states that it does not have a copy of the EPC statutes and that,according to the statement by Mr Gac, the EPC appears never to have had anystatutes (recital 34, paragraph 4). 3857. The objective pursued by the EPC is inferred by the Commission from variousitems of evidence referred to in recital 35, paragraphs 5 to 9, and recitals 36 and37 of the contested decision. 3858. The Commission observes that according to a handwritten memorandum fromCiments Français (recital 35, paragraph 5; document 33.126/4365), in setting up theEPC 'the Chairmen wished to control the exporters. The Commission maintainsthat this interpretation seems to be confirmed by the Blue Circle internalmemorandum of 9 April 1981, referred to above, which states that within the EPC'member companies would be represented at Chief Executive level. 3859. The Commission acknowledges that the EPC's activities essentially concerned theexport markets and that cooperation within the EPC related to market sharing,price fixing, the exchange of data, and the effort to conclude agreements with otherexporting organisations with headquarters in Asia (recital 37). However, itmaintains that some documents quoted in recital 35 of the contested decision andthe documents quoted in recital 36 of the contested decision show that the EPC didnot just deal with exports outside Europe but also with intra-European trade(recital 36, paragraph 1). 3860. In the part of the contested decision devoted to legal assessment of the EPC'sactivities, the Commission maintains, with reference to three factors (seeparagraphs 3870 to 3873 below), that there is a link between the EPC's activitiesand the home market rule (contested decision, recital 59, paragraph 1). 3861. The Commission states (same paragraph, final subparagraph) that: '... the EPC's main activities are the compiling and distribution of information onmembers' sales on the various export markets in third countries. In addition themembers share export markets, set or communicate to one another the pricescharged or to be charged on the various markets. However, all of this is closely linked to the EPC members' concerns regarding home markets. Knowledge of suchdata reassures the EPC members that production surpluses are being effectivelychannelled. The EPC members are thus assured that the surpluses will not by andlarge go to the European markets. 3862. Since non-transhipment to home markets was the rule underlying the EPC'sactivities, the Commission concludes (first subparagraph of recital 59, paragraph 2)that 'one of the EPC's objectives is to restrict competition within the Community. 3863. The Commission concludes (recital 59, paragraph 3) that the cooperation within theEPC in the form of the activities referred to in recitals 36 and 37 of the contesteddecision constitutes a continuous concerted practice through which 'the EPCmembers waived the pursuit of an autonomous commercial policy, setting up asystem of solidarity and monitoring designed to prevent incursions by competitorson respective home markets within the Community. Concerted practice designed to prevent incursions by competitors on respectivehome markets within the Community 3864. Ciments Français, Lafarge, Valenciana, Heracles, Titan, Hornos Ibéricos, BlueCircle and Halkis do not deny that they were members of the EPC. Nor do theydeny the facts found in recital 37, paragraphs 3 to 6, of the contested decision,namely that the participants in the EPC shared overseas export markets, fixedprices for and exchanged data on their exports. 3865. The applicants concerned emphasise that their cooperation within the EPC wasdesigned to increase export prices of cement. However, that cooperation was notlinked to any home market rule. The EPC's activities were therefore concernedonly with the markets of countries outside the Community and thus fell outside thescope of Article 85(1) of the Treaty. The applicants maintain that to follow theCommission's argument would be tantamount to accepting that any agreement onexports on the part of industries with surplus capacity constitutes an infringementof Article 85(1) of the Treaty. 3866. Blue Circle maintains that there was no question of channelling productionsurpluses within the framework of the EPC. In so far as the EPC met its objectiveof increasing export prices, the law of supply and demand had the effect ofreducing the volume of exports. 3867. The Commission, on the other hand, considers that the EPC's activities distortedcompetition within the Community (contested decision, recital 59) and affectedtrade between Member States (contested decision, recital 60). According to theCommission, non-transhipment to home markets within the Cembureau countrieswas the underlying rule of cooperation on overseas exports within the EPC (contested decision, recital 35, paragraph 9, recital 37, paragraph 1 and recital 59,paragraph 2). The cooperation within the EPC described in recitals 36 and 37 ofthe contested decision was therefore found in Article 6 to constitute a continuousconcerted practice, contrary to Article 85(1) of the Treaty, 'designed to preventincursions by competitors on respective national markets in the Community. 3868. As the Commission points out (contested decision, recital 37, paragraph 1),cooperation between undertakings on the export markets can be deemed aninfringement of Article 85(1) of the Treaty only if such cooperation has as its objector effect the prevention, restriction or distortion of competition within theCommunity and if it is liable to affect trade between Member States (Suiker Uniev Commission, cited in paragraph 651 above, paragraphs 580 and 599 to 601, andCRAM and Rheinzink v Commission, cited in paragraph 1335 above, paragraphs 24to 31). 3869. In order to determine whether the members of the EPC participated within theframework of that committee in a concerted practice contrary to Article 85(1) ofthe Treaty, it is therefore necessary to examine whether the Commission hasproved that their cooperation within the EPC was designed 'to prevent incursionsby competitors on respective national markets in the Community (Article 6 of thecontested decision). 3870. In the contested decision (recital 59, paragraph 1(a) to (c)), the Commission reliesessentially on the following facts to establish a link between the EPC's activities andthe rule that there should be no transhipment to home markets. 3871. The Commission first claims (paragraph 1(a)): '[According to a Ciments Français memo] through the setting-up of the EPC theChairmen wanted to control exporters (see paragraph 5 of recital 35) [document33.126/4454]. Defining the WCC [see paragraph 21 above] by reference to theEPC, Ciments Français states that the WCC is an informal club which is to whitecement what the Export Policy Committee is to grey cement [internal CimentsFrançais memorandum of 7 March 1989; documents 33.126/4466 and 4467]: theWCC rule is non-transhipment to home markets. 3872. The Commission then refers (paragraph 1, first indent, and subparagraph (b)) tothe historical association between Cembureau and the EPC and to the fact that theEPC members, through their national associations, are indirect members ofCembureau. 3873. Last, the Commission observes (paragraph 1(c)) that the internal problems of theMember States were examined on several occasions within the EPC. The EPCmembers themselves thus established a link between home markets and exportmarkets. 3874. The Court must first examine whether the links between the EPC and Cembureauare evidence of the existence of a link between the EPC's activities and the rulethat there should be no transhipment to home markets (A). It will then examinethe Ciments Français internal memoranda (B) and the documents issuing from theEPC structure, which are said to show that the members of that committee hadthemselves established a link between home markets and the EPC's activities (C). A  Links between the EPC and Cembureau 3875. In order to demonstrate that the EPC's activities were intended to ensure thatthere would be no transhipment to European home markets, the Commission refersto the historical link between Cembureau and the EPC (contested decision, recital59, paragraph 1, first indent). It goes on to state that the EPC members, asindirect members of Cembureau, were all required to abide by the home marketprinciple (same paragraph, subparagraph (b)). 3876. Ciments Français, Lafarge and Hornos Ibéricos contend that there was noinstitutional link between Cembureau and the EPC. It was the ECEC, not theEPC, that succeeded to the 'London Club and, accordingly, there was nohistorical affiliation between Cembureau and the EPC (see paragraph 3855 above). Furthermore, the EPC members were hostile to Cembureau. The applicantsreferred to in Article 6 of the contested decision also point out that their status asindirect members of Cembureau does not support the Commission's argument inthe present case. 3877. The Court finds that the Blue Circle memorandum of 9 April 1981 (contesteddecision, recital 30, paragraph 1; documents 33.126/11338 to 11340) shows thatthere was no institutional link between Cembureau and the EPC. The EPC andthe ECEC were established following a decision by Cembureau that it would nolonger run an export committee (see paragraph 3855 above). Accordingly, theCommission could not conclude from the existence of an historical affiliationbetween Cembureau and the EPC that Cembureau's activities after theestablishment of the EPC, namely the conclusion of the Cembureau agreement atthe meeting of Head Delegates held on 14 January 1983, influenced the EPC'sactivities. 3878. Furthermore, although it is true that the members of the EPC were all indirectmembers of Cembureau, that in itself does not show that the rule that there shouldbe no transhipment to home markets was the rule underlying the cooperationwithin the EPC. The assertion in the contested decision that the members of theEPC, by their indirect membership of Cembureau, were 'required to abide by thehome market principle (contested decision, recital 59, paragraph 1(b)) musttherefore be rejected. In that passage of the contested decision the Commissionmerely presumes what it is required to prove, namely that there was a link between the EPC's activities and the rule that there should be no transhipment to homemarkets. Nor can it be ruled out a priori that some indirect members ofCembureau had established within the framework of the EPC cooperation that hadno connection with a rule that there should be no transhipment to home marketswithin the Cembureau countries. In that regard, it is accepted that the EPC wasformed in 1978 (Mr Gac's answer of 30 March 1990 to a request from theCommission for information (contested decision, recital 35, paragraph 2; documents33.126/16766 to 16777, in particular 16772), five years before the Cembureauagreement was concluded at the meeting of Head Delegates on 14 January 1983. 3879. It should further be pointed out that as far as concerns the members of the EPC,who were all indirect members of Cembureau, proof that they adhered to theCembureau agreement is based on their participation in a measure implementingthat agreement (see paragraphs 1309, 1310, 1440 and 1441 above), whose objectwas identical to that of the Cembureau agreement (contested decision, recitals 46,paragraphs 1 and 2, and 65, paragraph 3, first subparagraph). However, bypresuming the accession of those undertakings to the rule on non-transhipment tohome markets by virtue of their direct or indirect membership of Cembureau andrelying on it in order to prove the unlawful nature of the EPC's activities, theCommission in fact adopted a circular argument. The accession of undertakingsto the Cembureau agreement is considered to be shown by their participation inan agreement or concerted practice having the same object as the Cembureauagreement, whereas the same object is proved on the basis of presumed accessionto the rule on non-transhipment to home markets. 3880. In order to find that the conduct referred to in Article 6 of the contested decisionwas unlawful the Commission must therefore prove, without relying on apresumption of accession to that rule by virtue of the EPC's members' direct orindirect membership of Cembureau, that the EPC's activities were designed tocomply with the home market rule. Only on that condition can the participation ofthe members of the EPC in the activities of that export committee be consideredto be a clear sign of their accession to the common rule of not transhipping tointernal markets. 3881. Last, if the other facts adduced in recitals 30, 35 to 37, 59 and 60 of the contesteddecision show that the members of the EPC sought 'to prevent incursions bycompetitors on respective national markets in the Community (Article 6 of thecontested decision) and, accordingly, that the cooperation within the EPC and theCembureau agreement shared the same object, the EPC's members' indirectmembership of Cembureau will constitute a relevant factor when the Courtdetermines whether the EPC's activities were a measure implementing theCembureau agreement (see paragraphs 4096 to 4101 below). B  Ciments Français internal memos 3882. Valenciana states that the Ciments Français internal memoranda (documents33.126/4454, 4466 and 4467) referred to in recitals 35, paragraphs 5 and 6, and 59,paragraph 1(b), of the contested decision are not persuasive evidence, since theydo not emanate from the EPC or Valenciana and they can therefore be bindingonly on their author. Hornos Ibéricos claims that it cannot be presumed that bothmemoranda were written by the same person or within a short time of one another. 3883. The Court observes that the fact that Valenciana did not participate in the draftingof the memoranda referred to in the contested decision in connection with theinfringement referred to in Article 6 of the contested decision does not mean thatthey are inadmissible against it (Empresa Nacional Siderúrgica v Commission, citedin paragraph 1053 above, paragraph 312). In this case it is not seriously disputedthat the memoranda in question, which were found in the office of the salesdirector of Ciments Français, come from that company. Ciments Français is oneof the founder members of the EPC and participated continuously in thatcommittee from 1978 until 17 February 1989 (unchallenged reply from Mr Gac of30 March 1990 to a request for information from the Commission (documents33.126/16766 to 16777, in particular 16772)). In those circumstances, andirrespective of whether the memoranda in question were written by the sameperson and during the same period, the information which they contain must beregarded as reliable evidence on which the Commission was entitled to rely todemonstrate the illegality of the EPC's activities. 3884. Next, it should be pointed out that the undated Ciments Français memorandum(contested decision, recital 35, paragraph 6; document 33.126/4454) states '[TheWCC] is a club: object: protection of home markets  rule: everyone respects hishome markets and exports excess production under general consensus. The otherCiments Français memo, dated 7 March 1989 (same paragraph; documents33.126/4466 and 4467) states that the WCC is 'an informal club which is to whitecement what the Policy is to grey cement. None of the applicants concerneddisputes that the reference to the 'Policy in this memorandum is to the EPC. 3885. These Ciments Français memoranda therefore constitute objective evidence thatthe members of the EPC sought to reinforce the home market principle bychannelling their production surpluses to non-member countries. 3886. Hornos Ibéricos claims, however, that the Commission misquoted the undatedCiments Français memorandum (document 33.126/4454) in the contested decision. That memorandum does not contain the passage set out in recital 35, paragraph6, of the contested decision and in the SO (point 27) to the effect that '[The WCC]is a club: object: protection of home markets. 3887. That argument must be rejected. The passage in question appears on the reverseof document 33.126/4454, a copy of both sides of which was in the Box (see paragraph 95 above) and it was correctly quoted both in the SO and in thecontested decision. 3888. In the contested decision the Commission also concluded from the passage 'lesPdr. ont voulu contrôler les exportateurs in the undated Ciments Françaismemorandum (document 33.126/4454) that 'the Chairmen wished to control theexporters. 3889. Hornos Ibéricos considers that 'Pdr might mean 'producers rather than'présidents (Chairmen). The Commission deliberately mistranslated theabbreviation so that it could conclude that the memorandum was consistent withthe Blue Circle memorandum of 9 April 1981 (documents 33.126/11338 to 11340),which states that the companies were represented within the EPC at ChiefExecutive level. 3890. However, the question whether 'Pdr referred to 'présidents or 'producers isnot decisive. What matters is that the Ciments Français memorandum in questionreflected a clear intention to control exports. When read together the two CimentsFrançais memoranda (documents 33.126/4454, 4466 and 4467) show that thiscontrol was necessary to ensure observance of the rule on non-transhipment tohome markets. 3891. Those memos, read together, thus constitute objective evidence that the EPC'sactivities were designed 'to prevent incursions by competitors on respectivenational markets in the Community (Article 6 of the contested decision). 3892. Ciments Français also contends that the sole intention of the author of thememorandum dated 7 March 1989 (documents 33.126/4466 and 4467), in statingthat the WCC was an informal club which was to white cement what the Policy wasto grey, was to point out that the WCC, like the EPC, was also intended to bringtogether the principal companies which exported white cement. 3893. That argument must be rejected. The parallel nature of the WCC and the EPCis referred to by the author of the memorandum of 7 March 1989 in general terms. The undated Ciments Français memorandum (documents 33.126/4454) statesunequivocally that the rule on non-transhipment to home markets was the ruleunderlying the WCC's activities. Having regard to the general nature of theparallelism between the two committees referred to in the memorandum of 7March 1989, the two memos, read together, constitute objective evidence that themembers of the EPC intended, through their cooperation within the EPC, tosupport the rule that there should be no transhipment to home markets. There isalso a considerable amount of further evidence (see paragraphs 3894 to 3915below) that corroborates the interpretation of the Ciments Français internalmemoranda (documents 33.126/4454, 4466 and 4467) in the contested decision, namely that non-transhipment to home markets within the Cembureau countrieswas the rule underlying cooperation on overseas exports within the EPC. C  Documents issuing from the EPC structure showing that the membersof that committee had themselves established a link between domesticmarkets and the EPC's activities 3894. In the contested decision (recital 36, paragraph 1) the Commission states that somedocuments quoted in recital 35 and all the evidence mentioned in recital 36 'issuingfrom the EPC structure show that the EPC did not just deal with exports outsideEurope but also with intra-European trade. It follows from those documents thatthe members of the EPC, who had themselves established a link between homemarkets and export markets, sought, through their cooperation within the EPC, toensure that there were no transhipments to European home markets (contesteddecision, recital 59, paragraphs 1 and 2). 3895. The Court finds, first, that the documents prepared by Mr Gac on 1 September1986, entitled 'EPC Beyond 1986 (contested decision, recital 36, paragraph 4;documents 33.126/12771 to 12773), and 4 November 1986, entitled 'Future ofEPC (contested decision, recital 36, paragraph 5; documents 33.126/12775 to12778), constitute additional specific and consistent evidence that, through theircooperation within the EPC, the members of that committee sought to ensurecompliance with the rule that there should be no transhipments to European homemarkets. 3896. In the document dated 4 November 1986, 'overcapacity in Western Europe wasregarded as a 'problem [looming] over the horizon of ... home markets. Thedocument dated 1 September 1986 states under '1st option  Maintenance of thestatus quo: 'The continuing decline in volume of business as well as intra-European friction produced by the Greek intention to export into West Europeanmarkets, suggest that there is no further benefit in continuing EPC under thepresent agreement. 3897. Accordingly, after observing that the Greek producers intended to dispose of partof their production on the Western European market, Mr Gac expressed doubt asto the ability of the EPC to survive. That shows that, at that time at least, the ruleunderlying cooperation on overseas exports within the EPC was the rule that thereshould be no transhipment to home markets. 3898. Hornos Ibéricos contends that the documents prepared by Mr Gac on 1 Septemberand 4 November 1986 merely reflected his predictions of the EPC's future andmerely revealed what was common knowledge, namely that there was overcapacityin the European cement industry at the time. Hornos Ibéricos further states that the document dated 4 November 1986 refers to the reluctance of the members ofthe EPC to address the issue of overcapacity in Western Europe. 3899. That argument must be rejected. Although the document prepared by Mr Gac on4 November 1986 reveals that the problem of overcapacity was 'not tangibleenough to become a subject of lively discussions, that document and the one dated1 September 1986, and also numerous other documents (see paragraphs 3900 to3915 below), establish a link between the EPC's activities and the need to channelproduction surpluses in order to protect the rule that there should be notranshipment to home markets. That link between the EPC's activities and the ruleon non-transhipment to home markets explains why Mr Gac, after observing thatthe Greek producers intended to dispose of part of their production in WesternEurope, considered it necessary to question the survival of the EPC. However, thefact that overcapacity itself, which was the problem underlying productionsurpluses, was not discussed within the EPC is not of such a nature as to invalidatethe finding that the members of the EPC intended, within the framework of thatexport committee, to channel their production surpluses in order to 'preventincursions by competitors on respective national markets in the Community(Article 6 of the contested decision). 3900. Second, it is apparent from various documents quoted in recital 36 of the contesteddecision that the references to the European markets made at certain EPCmeetings related to problems associated with intra-European trade. 3901. Thus the draft minutes of the EPC meeting of 18 November 1983 which were sentto Blue Circle (contested decision, recital 36, paragraph 2; documents 33.126/11365to 11373) contain, on page 4, the following annotations, which are not in the officialminutes (same paragraph; documents 33.126/14062 to 14068): 'The followingconcerns intra-European business and I am not sure it should be included in ourMinutes? ... The UK market is under pressure from Spanish suppliers. MrManglano assured delegates that neither Valenciana nor Cementos del Mar areinvolved in any UK trade. Valenciana therefore thought it necessary to assure theother participants in the EPC meeting that neither it nor its subsidiary Cementosdel Mar was involved in exports to the United Kingdom. 3902. Hornos Ibéricos contends that the passage quoted from page 4 of the draft minutessent to Blue Circle shows that the discussions on intra-Community trade did notform part of the objectives of the EPC. 3903. It is, however, necessary to determine what were the real activities of the EPCrather than merely to consider its 'official objectives. It follows not only from thedraft minutes of the EPC meeting of 18 November 1983 which were sent to BlueCircle, but also from other documents, that problems caused by intra-Communitytrade were discussed at EPC meetings. 3904. Thus the note which Mr Gac prepared on 29 August 1985 for the Chairman of theEPC, entitled 'memorandum for the EPC Steering Committee, Athens, 12September 1985 (contested decision, recital 36, paragraph 3; documents33.126/12804) mentions the 'seriousness of the threat that Spanish bulk will besupplied to the Bouri terminal in England. 3905. Similarly, the note dated 14 May 1987 which Mr Marshall, Chairman of the EPCand an executive director of Blue Circle, sent to Sir John Milne, Chairman of BlueCircle, and to three other persons at Blue Circle, concerning the EPC meeting heldon 13 May 1987 (contested decision, recital 36, paragraph 6; documents33.126/11344 and 11345) shows that problems caused by intra-Community tradewere dealt with at EPC meetings. The note refers to Greek imports into theUnited Kingdom and to the Cembureau Task Force and observes that '... commonsense is beginning to prevail, certainly in Titan. They respect the way we havedealt with them in the USA (see paragraphs 3964 to 3966 below). 3906. Titan and Hornos Ibéricos claim, however, that Mr Marshall's note of 14 May 1987is not an account of the discussions which took place at the EPC meeting of 13May 1987 but a summary of a private meeting which Mr Marshall had on the fringeof that meeting. That point of view is supported by the fact that the officialminutes of the meeting (contested decision, recital 36, paragraph 6; documents33.126/13004 to 13011) make no reference to the problems caused by Communitytrade. 3907. The Court observes that Mr Marshall's note of 14 May 1987 is not actually anofficial minute of the meeting of 13 May 1987. However, it relates discussionswhich took place at that meeting. It is headed 'European Export PolicyCommittee  Meeting on 13th May 1987. The various subdivisions of thedocument (which are drafted in the third person, unlike the passage reproduced inparagraph 3909 below) contain information communicated at the meeting which MrMarshall considered would be of use to Blue Circle's management, and the author'sappraisal of that information. 3908. The Court considers that the fact that there is no reference to intra-Communitytrade in the official minutes of the meeting of 13 May 1987 (documents33.126/13004 to 13011) is explained by the desire not to disclose what was discussedin that regard. Furthermore, the draft minutes of the EPC meeting of 18November 1983 sent to Blue Circle contained information on intra-European trade(see paragraph 3901 above) which was also deliberately omitted from the officialminutes of that meeting. 3909. A single passage in the note of 14 May 1987, namely the passage devoted to the'Cembureau Task Force, describes private meetings held on the fringe of the EPCmeeting of 13 May 1987. The style and content of that passage are different fromthose of the other passages in the note in question. In that passage, the Chairman of the EPC states: 'I was approached on two occasions to try to make sure that theCembureau Task Force continues in operation as a means of keeping up ourpressure on the Greeks. Scancem were particularly anxious and felt that ... somepressure could be brought to bear on the Greeks (contested decision, recital 24,paragraph 3; documents 33.126/11344 and 11345). Not only the fact that theChairman of the EPC was 'approached on two occasions but also the purposebehind those approaches, namely to keep up pressure on the Greek members ofthe EPC, show that this passage from the note does not relate to discussions whichtook place during the EPC meeting of 13 May 1987 which the three Greekmembers attended (see paragraphs 3965 and 3966 below). 3910. Since the finding of an infringement in respect of the EPC meeting of 13 May 1987is based solely on the passages from Mr Marshall's note describing discussionswhich did take place at that meeting (see paragraph 3905 above and contesteddecision, recital 36, paragraph 6), the argument put forward by Titan and HornosIbéricos must be rejected. 3911. Next, the record of the EPC meeting of 20 October 1988 drawn up by CimentsFrançais (contested decision, recital 36, paragraph 8; documents 33.126/18179 and18180) mentions, inter alia, the status of the negotiations between Lafarge,Heracles and Titan over the supply of cement or clinker (see paragraphs 3967 and3968 below). 3912. Titan and Hornos Ibéricos claim that this document is a minute of a privatemeeting on the fringe of an EPC meeting, namely a meeting between Lafarge andCiments Français. 3913. That argument must be rejected. The record in question is entitled 'PolicyCommittee Meeting, Barcelona, 20 October 1988. Furthermore, it containsinformation on a number of members of the EPC, such as Hispacement, Heracles,Titan and Valenciana, and refers to the fact that 'the members believe that therewill be a drop of 5% in their sales to the USA. It is not therefore a minute of aprivate meeting between representatives of Lafarge and Ciments Français. 3914. Last, the members of the EPC again discussed intra-European trade at the meetingof the Steering Committee on 15 February 1989 (contested decision, recital 36,paragraph 7; documents 33.126/13019 to 13021), when it was stated that 'Spain isunder increasing pressure from importers. 3915. It follows that various documents referred to in recital 36 of the contested decisionand analysed in paragraphs 3901 to 3914 above show that at their meetings themembers of the EPC themselves established a link between intra-European tradeand the overseas export markets. This constitutes further specific and consistentevidence that the EPC's activities were designed to 'prevent incursions by competitors on respective national markets in the Community (Article 6 of thecontested decision). 3916. Ciments Français, Lafarge, Valenciana and Hornos Ibéricos cannot claim that thereferences to intra-Community trade made at the EPC meetings were anodyne andfortuitous. Unlike those relating to the ECEC (see paragraphs 3803 to 3848above), the documents relating to the EPC meetings show that within the EPCintra-Community trade was regarded as a problem. Thus, reference was made toa 'threat ('memorandum for the EPC Steering Committee, Athens, 12 September1985 (contested decision, recital 36, paragraph 3; document 33.126/12804)) andto 'pressure (draft minutes of the EPC meeting of 18 November 1983 (samerecital, paragraph 2; documents 33.126/11365 to 11373) and minutes of the EPCSteering Committee meeting of 15 February 1989 (same recital, paragraph 7;documents 33.126/13019 to 13021)) which caused 'intra-European friction(document entitled 'EPC Beyond 1986 (same recital, paragraph 4; documents33.126/12771 to 12773)). 3917. Furthermore, the fact that problems caused by intra-European cement trade werediscussed at the EPC meetings shows that the EPC's members themselves took theview that those problems could be resolved in that forum. In the face of theproblem which had arisen, the channelling of production surpluses to non-membercountries seemed an obvious solution to the members of a committee concernedwith overseas exports of cement. The principle of not transhipping to homemarkets and the channelling of exports went hand in hand (Blue Circlememorandum of 1 December 1983 (contested decision, recital 18, paragraph 2;documents 33.126/11332 to 11334)). 3918. Moreover, it is apparent from the documents relating to the EPC meetings that themembers of that committee did in fact discuss the channelling of productionsurpluses. At the EPC meeting on 13 May 1987 efforts by Blue Circle to channelTitan cement to the United States market were discussed (memorandum from theChairman of the EPC to the Chairman of Blue Circle concerning the EPC meetingon 13 May 1987 (see paragraph 3905 above)). Furthermore, at the EPC meetingon 20 October 1988 (contested decision, recital 36, paragraph 7; documents33.126/18179 and 18180) reference was made to the status of negotiations betweenLafarge, on the one hand, and Heracles and Titan, on the other hand, over thesupply of cement or clinker. Those negotiations form part of the attempts whichWestern European producers made to offer the Greek producers outlets for theirproduction surpluses (see paragraphs 3397 to 3679 above) in exchange for anundertaking by the Greek producers to comply with the rule on non-transhipmentto home markets (see paragraphs 3964 to 3968 below). 3919. It follows from all the specific and consistent evidence analysed above, therefore,that, as the Commission claims, 'non-transhipment to home markets [was] the rule underlying the cooperation on overseas exports within the EPC (contesteddecision, recital 59, paragraph 2). 3920. Halkis maintains that the sole objective pursued in setting up the EPC in 1978 wasto provide its members with the opportunity to discuss problems encountered onthe export markets outside Western Europe. 3921. However, even supposing that the objective pursued by the setting-up of the EPCin 1978 was lawful, it is apparent from the specific documentary evidence referredto in recitals 30, 35 to 37 and 59 of the contested decision that the members of theEPC, in the framework of their activities within that committee, intended to'prevent incursions by competitors on respective national markets in theCommunity (Article 6 of the contested decision). 3922. Lafarge and Hornos Ibéricos also claim that the Commission should have carriedout a thorough economic analysis of the market in question, the undertakingsconcerned and the nature of the products before concluding that the rule that thereshould be no transhipment to home markets was the only plausible explanation forthe EPC's activities. 3923. The Court observes that in the contested decision the Commission relied not onparallel conduct on the market but on the specific documentary evidence referredto in recitals 30, 35 to 37 and 59 of the contested decision and analysed inparagraphs 3882 to 3918 above which shows that non-transhipment to homemarkets was the rule underlying cooperation on overseas exports within the EPC. A more thorough economic analysis of the market in question would not thereforehave been of such a nature as to shed a different light on that evidence. Theargument must therefore be rejected. 3924. Last, the Commission was correct to classify the cooperation within the EPCdesigned to 'prevent incursions by competitors in respective national markets in theCommunity as an infringement of Article 85(1) of the Treaty (Article 6 of thecontested decision). Within the EPC, the members of that committee, or at thevery least some of them, substituted for the risks of competition practicalcooperation between themselves, with a clearly anti-competitive object (judgmentsin Suiker Unie and Others v Commission, cited in paragraph 651 above, paragraph26, and Woodpulp II, cited in paragraph 106 above, paragraph 63). 3925. Lafarge, Hornos Ibéricos, Blue Circle and Halkis criticise the Commission forfailing to show that the export activities complained of in connection with the EPChad had anti-competitive effects in the Community. 3926. However, concerted practices such as those found to exist in the present case arecaught by Article 85(1) of the Treaty even where they have no anti-competitiveeffects on the market. 3927. First, it follows from the very wording of that provision that concerted practices areprohibited irrespective of any effect where, as in the present case (see paragraphs3882 to 3923 above), they have an anti-competitive object. 3928. Next, although the very concept of concerted practice presupposes some conducton the market, it does not necessarily mean that that conduct actually has the effectof restricting, preventing or distorting competition (see case-law cited in paragraph1674 above). 3929. Lafarge, Hornos Ibéricos and Blue Circle also complain that the Commission failedto show that the export activities within the framework of the EPC to which itobjected had affected trade between Member States. 3930. However, in prohibiting agreements or concerted practices whose object or effectis to restrict competition and which are of such a nature as to affect trade betweenMember States, Article 85(1) of the Treaty does not require proof that suchagreements or practices have in fact significantly affected trade between MemberStates, which, moreover, is difficult to establish to a sufficient legal standard in mostcases, but requires that it be established that the agreement or practice was capableof having that effect. The condition that trade between Member States be affectedis satisfied where it is possible to foresee with a sufficient degree of probability onthe basis of a set of factors of law or fact that the agreement or practice found toexist may have an influence, direct or indirect, actual or potential, on the patternof trade between Member States (see the case-law cited at paragraph 1986 above). In the present case, having regard to the object of the EPC and the economicimportance of its members, the conduct within that committee of which theCommission complains was in fact capable of having an appreciable effect on tradebetween Member States. 3931. Ciments Français contends that the discussions which took place within the EPCconcerning the internal problems of the Community market were not prohibited byArticle 85(1) of the Treaty, since they related to the questions of dumping and thelegitimate concerns caused by the aid which the Greek State provided to its cementindustry. Blue Circle emphasises that the overcapacity in Europe arose as a resultof illegal State aid. 3932. The Court points out that the Commission has never denied that the Greekindustry received a significant amount of State aid during the period taken intoconsideration by the contested decision (recital 24, paragraph 2; footnote 113). Nor has it denied that at the EPC meetings the members of that committeeexpressed their concern at dumped imports and State aid granted to Greekundertakings. As it correctly observed, however (contested decision, recital 36,paragraph 10), those facts 'cannot in any circumstances justify the adoption ofprivate measures in addition to the possibility of bringing the matter to theknowledge of the competent authorities. It is clear from the documents referred to in recitals 30, 35 to 37 and 59 of the contested decision and analysed inparagraphs 3882 to 3914 above that within the framework of the EPC activitieswere undertaken which were designed to support the rule on non-transhipment toEuropean home markets by channelling production surpluses to third markets. These activities constituted a concerted practice prohibited by Article 85(1) of theTreaty, since they had as their object the restriction of competition within theCommunity and were capable of having an appreciable effect on trade betweenMember States. The argument put forward by Ciments Français must thereforebe rejected. 3933. It follows from all the foregoing that the Commission was correct to conclude in thecontested decision that within the framework of the EPC there was a concertedpractice contrary to Article 85(1) of the Treaty. Continuity of the concerted practice 3934. In the contested decision the Commission considers that the activities within theEPC were a continuous concerted practice from 1 July 1981 to 19 May 1989(Article 6). 3935. The date 1 July 1981 is the date of the first EPC meeting of which the Commissionwas aware (contested decision, recitals 37, paragraph 3, and 59, paragraph 4;documents 33.126/11442 to 11446). However, that meeting is not among those towhich the Commission refers in recitals 36 and 59, paragraph 1(c), of the contesteddecision in support of its argument that the rule on non-transhipment to Europeanhome markets was the rule underlying cooperation within the EPC. In any event,it cannot be concluded from the minutes of the EPC meetings of 1 and 2 July 1981(documents 33.126/11442 to 11455) that the participants in those meetings soughtto channel their production surpluses in order to reinforce the rule on non-transhipment to European home markets. 3936. Furthermore, none of the evidence referred to in the contested decision is of sucha nature as to show that the activities of the EPC, which was set up in 1978, hadalready become unlawful in 1981. Thus the extract from the Blue Circlememorandum of 9 April 1981 (documents 33.126/11338 to 11340) quoted in recital35, paragraph 5, of the contested decision, which states that the members of theEPC sought to 'keep supply in line with demand, concerned only the overseasexport markets. In the same memorandum the author complains that 'the Greeksand Spanish have placed considerably more tonnage on the [overseas export]market with disastrous results. If the EPC's object in 1981 had been to channelproduction surpluses to non-European markets the increased Greek and Spanishsales on those markets would not have been criticised. 3937. In those circumstances, the starting date of the concerted practice found to existwithin the EPC must be taken to be 18 November 1983, the date of the first EPCmeeting referred to in the contested decision at which the participants discussedproblems linked with the intra-European cement trade (see paragraph 3901 above). 3938. The documents analysed in paragraphs 3904 to 3914 above concerning the activitiesof the EPC confirm that the concerted practice continued from 18 November 1983to 19 May 1989. In that regard, it is necessary to refer to the 'memorandum forthe EPC Steering Committee, Athens, 12 September 1985 (documents33.126/12804), the note from the Chairman of the EPC to the Chairman of BlueCircle concerning the EPC meeting of 13 May 1987 (documents 33.126/11344 and11345), the minutes of the EPC meeting of 20 October 1988 (documents33.126/18179 and 18180) and the minutes of the meeting of the EPC SteeringCommittee of 15 February 1989 (documents 33.126/13019 to 13021). 3939. With all this specific and consistent evidence of the continuous nature of theconcerted practice referred to in Article 6 of the contested decision, and in theabsence of any evidence that the parties had put an end to the practice, theCommission was entitled to take the view that the concerted practice had lasteduntil 19 May 1989, the date of the last EPC meeting of which the Commission wasaware and the holding of which has not been disputed by any of the applicantsconcerned. Participation of the various applicants concerned in the concerted practice 3940. None of the applicants concerned denies having been a member of the EPC. It isapparent from all the evidence referred to in recitals 35 to 37 and 59 of thecontested decision that, in the context of their cooperation within the EPC, itsmembers sought to channel their production surpluses in order to 'preventincursions by competitors on respective national markets (contested decision,recital 59, paragraph 3, and Article 6). 3941. Heracles, Titan and Halkis contend that the Commission was not entitled to findthat they participated in the infringement solely on the ground that they weremembers of the EPC, since the official objectives pursued by that committeerelated to overseas exports and were therefore lawful. 3942. The Court points out, however, that all the applicants referred to in Article 6 of thecontested decision participated in one or other of the EPC meetings at which theparticipants expressly established a link between the rule on non-transhipment toEuropean home markets and their cooperation on export markets (see paragraphs3900 to 3914 above). They cannot therefore escape liability for an infringement ofArticle 85(1) of the Treaty by relying on the lawful 'official objectives pursued bythe EPC. 3943. Thus it is common ground that Ciments Français, Lafarge, Valenciana, HornosIbéricos, Blue Circle and Halkis participated in the EPC meeting of 18 November1983 (contested decision, recital 36, paragraph 2; documents 33.126/11365 to 11373)and that Blue Circle, Ciments Français, Lafarge, Valenciana, Heracles, Titan,Hornos Ibéricos and Halkis attended the EPC meeting of 13 May 1987 (contesteddecision, recital 36, paragraph 6; documents 33.126/13004 to 13011). CimentsFrançais, Lafarge, Cementos del Mar (Valenciana's subsidiary), Heracles, Titan,Hornos Ibéricos and Halkis participated in the EPC meeting of 20 October 1988(contested decision, recital 36, paragraph 7; documents 33.126/12791 to 12799 and12971 to 12977). Finally, Lafarge and Heracles participated in the EPC SteeringCommittee meeting of 15 February 1989 (contested decision, recital 36, paragraph7; documents 33.126/13019 to 13021). 3944. It is necessary to ascertain whether those applicants have adduced evidence thatthey distanced themselves from what was agreed at those meetings (see paragraphs3945 to 3972 below) which is such as to lead to the conclusion that, despite theirpresence at those meetings, they did not subscribe, or even give the impression tothe other participants that they subscribed, to the unlawful objectives pursuedwithin the framework of the EPC meetings which they attended (see the case-lawcited at paragraph 1353 above). 3945. A number of applicants claim that they distanced themselves in such a way and relyon other special circumstances of such a nature as to bring their conduct within theEPC into line with Article 85(1) of the Treaty. 3946. Thus Ciments Français claims that it had only observer status within the EPC owingto the negligible quantities which it exported. It further states that the documentsreferred to in the contested decision contain no trace of any involvement on itspart. It states that it has not been a member of the EPC since February 1989, thatis to say, before the Commission's investigation was opened. 3947. That argument must be rejected. It follows from an internal Ciments Françaismemorandum dated 7 March 1989 (contested decision, recital 35, paragraph 6;documents 33.126/4466 and 4467) that the EPC was the 'club of the largestexporters in Cembureau. Ciments Français, which confirms that it was a memberof the EPC, cannot therefore claim that the quantities which it exported werenegligible. Furthermore, it participated in various EPC meetings, in particular themeetings of 18 November 1983, 13 May 1987 and 20 October 1988, at which theaim was to prevent incursions by competitors on respective European nationalmarkets. As a result of its presence at those meetings it could not fail to have beenaware of their express anti-competitive object. It does not even claim to haveopenly distanced itself from what was agreed at those meetings. By its presenceit therefore subscribed to the objective pursued or, at the very least, gave theimpression to the other participants that it subscribed to it (see the case-law citedin paragraph 1353 above). Its participation in the concerted practice is therefore established. As regards the duration of its participation, the Commission correctlytook account of the fact that Ciments Français resigned from the EPC on 17February 1989 (contested decision, recitals 35, paragraph 3, and 59, paragraph 4,and Article 6). 3948. Hornos Ibéricos claims that its participation in the EPC was dictated solely by itsdesire to obtain general information on the world cement markets and by economicnecessities to do with guaranteed supplies of cement for new export markets andthe profitability of its investments. It also observes that it was never a member ofthe EPC Steering Committee. In any event, it was not aware that the principalobject of the EPC meetings was to ensure that there would be no transhipment tohome markets. 3949. Furthermore, a number of items of evidence are inadmissible in its case. HornosIbéricos claims, in that regard, that the minutes of the EPC meeting of 18November 1983 (contested decision, recital 36, paragraph 2; documents33.126/11365 to 11373) and Mr Gac's memorandum of 29 August 1985, entitled'memorandum for the EPC Steering Committee, Athens, 12 September 1985(contested decision, recital 36, paragraph 3; documents 33.126/12804), refer toactivities of the Spanish producers directed against the United Kingdom, whenSpain had not yet acceded to the Community at that time. The Commission wasnot entitled to rely on evidence prior to 1 January 1986 to find that HornosIbéricos participated in an infringement from that date. 3950. The Court points out that Hornos Ibéricos participated in various EPC meetings,in particular the meetings of 18 November 1983, 13 May 1987 and 20 October1988, which aimed to prevent incursions by competitors on respective Europeannational markets. It is true that the documents referred to in the precedingparagraph predate the accession of Spain to the Community. However, a numberof other documents (EPC meeting of 13 May 1987 (contested decision, recital 36,paragraph 6; documents 33.126/13004 to 13011) and EPC meeting of 20 October1988 (same recital, paragraph 7; documents 33.126/12791 to 12799 and 12971 to12977)) show that Hornos Ibéricos participated continuously in the concertedpractice after 1 January 1986. Its presence at the various meetings in questionmeant that Hornos Ibéricos could not fail to be aware of their express anti-competitive object. It does not even claim to have openly distanced itself fromwhat was agreed at those meetings. By its presence it therefore subscribed to theobjective pursued or, at the very least, gave the impression to the other participantsthat it subscribed to it (see case-law cited in paragraph 1353 above). Itsparticipation in the concerted practice referred to in Article 6 of the contesteddecision is therefore established. 3951. The Greek applicants contend that owing to their special position they could notbe held liable for the infringement referred to in Article 6 of the contesteddecision, even on the assumption that other members of the EPC sought, within the framework of that export committee, to channel production surpluses in order toprevent incursions by competitors on respective national markets in theCommunity. 3952. Heracles and Titan rely, in particular, on the spectacular increase in their exportsto the Community markets after 1986. 3953. The Court finds that the contested decision contains no evidence that Heracles andTitan participated before 1986 in an EPC meeting at which the participantsdiscussed problems relating to the intra-European cement trade. Since it had notshown that Heracles and Titan were present at an EPC meeting which had anunlawful object, the Commission could not find that they participated in theinfringement before that date. Since the Commission itself acknowledges that theEPC's main activities related essentially to export markets in non-member countries(contested decision, recital 59, paragraphs 1 and 2), an undertaking could not befound to have participated in the concerted practice designed to prevent incursionsby competitors on respective national markets in the Community solely because itwas a member of the EPC. 3954. Halkis participated in the EPC meeting of 18 November 1983 (documents33.126/11365 to 11373). It has been established that the object of the participantsin that meeting was to prevent incursions by competitors on respective Europeannational markets (see paragraphs 3901 to 3903 above). As a result of its presenceat the meeting in question Halkis could not fail to be aware of its express anti-competitive object. It does not even claim to have openly distanced itself fromwhat was agreed at that meeting. By its presence it therefore subscribed to theobjective pursued or, at the very least, gave the impression to the other participantsthat it subscribed to it (see case-law cited at paragraph 1353 above). Itsparticipation on 18 November 1983 in the concerted practice referred to in Article6 of the contested decision is therefore established. 3955. As regards the question whether the Greek producers participated in the concertedpractice after 1986, the Court points out that the Commission acknowledges in thecontested decision that '[a]t the end of 1985/early 1986, Greek producers lookedtowards Western Europe, especially to ... the United Kingdom ... and ... Italy(contested decision, recital 24, paragraph 1) and that, in order to cope with that'Greek threat, the ETF was formed (contested decision, recital 24, paragraph 2). 3956. The Greek producers' exports to the Community markets were not seen by otherproducers merely as an attempt 'to avoid implementing the Cembureau agreementto which [the Greek producers] acceded (contested decision, recital 65, paragraph9(b)). By exporting to the Community markets they were regarded as openlydistancing themselves from the rule on non-transhipment to home markets, the ruleunderlying the operations within the EPC. 3957. Thus in a Blue Circle internal memorandum of 24 October 1986 (document33.126/1132), which was referred to by Titan and AGCI in their applications butnot quoted in the contested decision, it was stated that, as regards the situation onthe United Kingdom market, 'the Greeks are here to stay. Whilst politicalattention remains focused on the issue they cannot withdraw quietly and not beingbound by the same rules of trading which limit our room for manoeuvre they haveeverything to gain and nothing to lose by waiting. 3958. The Commission put forward three explanations for the reference to the 'rules oftrading by which the Greek producers, unlike the United Kingdom producers,were not bound. It explained that the author of the Blue Circle memorandummeant to say that the Greek undertakings received State aid. The 'rules oftrading in question might also refer to the CPMA (see paragraph 91 above). Last,the Commission acknowledged at the hearing in Case T-64/95 that the referenceto those rules might refer to the principle of non-transhipment to European homemarkets. 3959. Irrespective of the last explanation, the Court points out that the memorandum inquestion states that 'the Greeks are here [on the United Kingdom market] tostay. In that memorandum the Greek producers were therefore regarded by BlueCircle, a member of the EPC, as not subscribing to the rule on non-transhipmentto home markets. 3960. Similarly, the document drawn up by Mr Gac on 1 September 1986, entitled 'EPCBeyond 1986 (contested decision, recital 36, paragraph 4; documents33.126/122771 to 12773) shows that the Greek producers were no longer regardedas adhering to the fundamental rule on non-transhipment to home markets, theunderlying rule of the EPC's activities. Since the members of the EPC sought, inparticular, to channel their production surpluses to markets in non-member Statesin order to reinforce the rule on non-transhipment to European home markets, theconduct of the three Greek members of the EPC, Heracles, Titan and Halkis, ledMr Gac to question the survival of the EPC: 'the Greek intention to export intoWest European markets [suggests] that there is no further benefit in continuingEPC under the present agreement. 3961. It follows from the foregoing analysis that at the very least from 1 September 1986,the date of Mr Gac's document, Heracles, Titan and Halkis did not adhere to therule on non-transhipment to European home markets and, moreover, were notperceived by the other members of the EPC as bound by that rule. Theirparticipation in the EPC's activities during that period cannot therefore beregarded as infringing Article 85(1) of the Treaty, since, in the eyes of the otherparticipants, the three undertakings had openly distanced themselves from the anti-competitive purpose of the EPC's activities. 3962. It is necessary to examine whether the participation of the Greek members of theEPC in the EPC meetings referred to in the contested decision which were heldafter 1986 show that Heracles, Titan and Halkis adhered to the rule on non-transhipment to European home markets. It is common ground that the threeundertakings attended the EPC meetings of 13 May 1987 (contested decision,recital 36, paragraph 6; documents 33.126/13004 to 13011) and 20 October 1988(same recital, paragraph 7; documents 33.126/12791 to 12799 and 12971 to 12977). Heracles also participated in the meeting of the EPC Steering Committee on 15February 1989 (same paragraph; documents 33.126/13019 to 13021). 3963. None of the documentary evidence relating to those meetings shows, however, thatthe Greek producers participated in the EPC's activities with a view to'[preventing] incursions by competitors on ... national markets in the Community(Article 6 of the contested decision). 3964. As regards, first, the EPC meeting of 13 May 1987, the note of 14 May 1987 fromthe Chairman of the EPC to the Chairman of Blue Circle and three otherindividuals at Blue Circle (documents 33.126/11344 and 11345) gives no indicationthat there had been any change in Halkis's conduct. As regards Heracles, the notestates: 'A second ship is on its way from Heracles to Bourie in the UK. Althoughit states, in regard to Titan, that 'common sense is beginning to prevail, it isapparent that the other members of the EPC did not yet see Titan as being boundby the rule on non-transhipment to home markets. Thus the note mentions cementimports by Titan into Northern Ireland. 3965. Furthermore, on the fringe of the EPC meeting of 13 May 1987 (see paragraph3909 above), the Chairman of the EPC stated (contested decision, recital 24,paragraph 3; document 33.126/11345): 'I was approached on two occasions to tryto make sure that the Cembureau Task Force continues in operation as a meansof keeping up our pressure on the Greeks. Scancem were particularly anxious andfelt that ... some pressure could be brought to bear on the Greeks. 3966. It follows that when the EPC meeting of 13 May 1987 was held the Greekmembers were still seen as a source of concern for the other members of the EPC,whence the suggestion that pressure be kept up on them. Accordingly, even thoughthe other participants in the meeting sought to 'prevent incursions by competitorson respective national markets in the Community (Article 6 of the contesteddecision) (see paragraph 3905 above), that anti-competitive object was still notshared by the Greek producers at that time. 3967. As regards the meeting of 20 October 1988, the memorandum drawn up byCiments Français (documents 33.126/18179 and 18180) describes, in particular, thestatus of the negotiations between Lafarge, Heracles and Titan over the supply ofcement or clinker. It states: 'Lafarge is currently pursuing two sets of negotiations with the Greeks, which are very difficult owing to their finicky ways. It also refersto 'bilateral discussions ... with the Greeks. 3968. It should be pointed out that at that time the other European producers wereseeking a commitment from the Greek producers that they would no longer makedirect deliveries in Europe, in exchange for the purchase of significant quantitiesof cement by non-Greek European producers (see paragraph 3918 above). However, the Commission did not establish in the contested decision that theGreek producers had succumbed to the pressure brought to bear by the otherEuropean producers (see, in particular, paragraphs 3397 and 3679 above). Therefore, the fact that the Ciments Français memorandum relating to the EPCmeeting of 20 October 1988 refers to 'negotiations with the Greeks and to'bilateral discussions ... with the Greeks shows that the members of the EPC otherthan the Greek members continued at that time, within the framework of theirmeetings within the EPC, to 'prevent incursions by competitors on ... nationalmarkets (Article 6 of the contested decision). The document in question does not,however, contain any evidence to establish that on 20 October 1988 the Greekproducers adhered to the principle of non-transhipment to European homemarkets. 3969. Nor, last, is there anything in the minutes of the EPC Steering Committee meetingof 15 February 1989, in which Heracles participated, to indicate that the Greekproducers were seen by the other participants to be complying with the rule onnon-transhipment to European home markets. 3970. It follows from all the foregoing that the Commission was not entitled to find thatHeracles and Titan participated in the infringement referred to in Article 6 of thecontested decision before 1986 (see paragraph 3953 above). Furthermore, thosetwo applicants openly distanced themselves from the rule underlying the EPC'sactivities in 1986 and there is no evidence that they adhered to the principle ofnon-transhipment to European home markets after that date. Since the activitieswithin the EPC were classified in the contested decision as infringements of Article85(1) of the Treaty on the ground that they were designed to 'prevent incursionsby competitors on respective national markets in the Community, Article 6 of thecontested decision must be annulled in so far as it concerns Heracles and Titan. 3971. On the other hand, Halkis's participation in the infringement referred to in Article6 of the contested decision is established by its participation in the EPC meetingof 18 November 1983 (see paragraph 3954 above), since it has failed to show thatthe cooperation within the EPC was not of such a nature as to influence its conducton the Community market. The fact that Halkis also openly distanced itself fromthe rule underlying the EPC's activities in 1986 will be taken into considerationwhen the Court determines the duration of its participation in the infringement (seeparagraph 3980 below). 3972. Since the other applicants referred to in Article 6 of the contested decision didnothing to distance themselves from the rule in question, it must be concluded thatthe Commission was also entitled to find that Ciments Français, Lafarge,Valenciana, Hornos Ibéricos and Blue Circle participated in the infringement. Duration of the participation in the infringement by applicants other thanHeracles and Titan 3973. The Court has already found (see paragraph 3937 above) that the Commission hasnot established that the concerted practice referred to in Article 6 of the contesteddecision existed before 18 November 1983. After that date the continuous natureof the anti-competitive concerted practice is established until 19 May 1989 (seeparagraph 3939 above). 3974. Hornos Ibéricos and Valenciana claim that the Commission has not shown thattheir participation in the EPC produced effects in the Community after 1 January1986. 3975. Contrary to what those applicants claim, the Commission was not required to showthat their participation in the EPC produced effects in the Community after 1January 1986, since their participation in a concerted practice with an anti-competitive object was sufficient for the purposes of the application of Article 85(1)of the Treaty. Since their continuous participation in the concerted practice after1 January 1986 was apparent from their presence at EPC meetings having anunlawful object (see paragraph 3943 above) and since they have adduced noevidence that the cooperation in the EPC was not of such a nature as to influencetheir conduct on the Community market, the Commission was entitled to fix 1January 1986 as the starting date of their participation in the infringement. 3976. Blue Circle and Halkis dispute the dates on which their participation in theinfringement is found to have ended. 3977. Blue Circle states that the last EPC meeting in which it participated was themeeting of 2 June 1987. The Commission could not therefore find that itsparticipation in the infringement ceased on 12 October 1987. 3978. The file contains no evidence relating to the EPC meeting of 2 June 1987. However, it is apparent from the minutes of the EPC meeting of 13 May 1987 thatBlue Circle participated in that meeting (contested decision, recital 36, paragraph6; documents 33.126/13004 to 13011). At that meeting Mr Marshall, the Chairmanof the EPC, informed the other participants that 'this was the last meeting at whichhe represented Blue Circle. The Court points out again (see paragraph 3905above) that at that meeting the participants sought to 'prevent incursions bycompetitors on respective national markets in the Community (Article 6 of the contested decision). In the absence of evidence to the contrary, the Court findsthat the unlawful collusion on 13 May 1987 influenced Blue Circle's competitiveconduct on the Community market after that date. The Commission was thereforeentitled to find that the infringement by Blue Circle came to an end on 12 October1987, the date on which Blue Circle resigned from the EPC. By resigning BlueCircle openly distanced itself from the anti-competitive purpose of the EPC'sactivities. 3979. Last, as regards Halkis, in whose case the infringement was found to have ceasedon 19 May 1989, it should be pointed out that Halkis participated in the EPCmeeting of 18 November 1983, which proves that it participated in the concertedpractice (see paragraph 3954 above). It has also been found that, from 1September 1986 at least, the Greek producers were no longer seen by the otherEPC members as adhering to the rule on non-transhipment to European homemarkets. Article 6 must therefore be annulled as against Halkis in so far as it findsan infringement of Article 85(1) of the Treaty after 1 September 1986. 3980. It follows from all the foregoing that Article 6 of the contested decision must beannulled as against Ciments Français, Lafarge, Blue Circle and Halkis in so far asit finds that there was an infringement of Article 85(1) of the Treaty before 18November 1983 and as against Halkis in so far as it finds that the infringementcontinued after 1 September 1986. Infringement of Article 190 of the Treaty 3981. In its reply Hornos Ibéricos claims that the Commission prevented it fromeffectively preparing its defence to the contested decision by failing to specifywhether its participation in the EPC was deemed to have taken the form of anagreement or that of a concerted practice, although those two legal classificationsare quite different, both in terms of their constituent elements and the standard ofproof to be satisfied by the Commission. 3982. The Court points out, first of all, that this is a new plea, which is inadmissible underArticle 48(2) of the Rules of Procedure. In any event, the plea is completelyunfounded. It is unmistakeably clear from both recital 59 and Article 6 of thecontested decision that the Commission accused the members of the EPC, includingHornos Ibéricos, of participating, within the framework of that committee, in aconcerted practice. 3983. Halkis contends that the decision does not contain an adequate statement ofreasons as regards the infringement referred to in Article 6. 3984. That plea must also be rejected. In recitals 30 and 35 to 37 of the contesteddecision the Commission sets out the facts and documentary evidence on which it relied in concluding in recital 59, first, that there existed within the EPC acontinuous concerted practice of channelling production surpluses to non-membercountries, in respect of which it then makes a finding of an infringement in Article6 of the contested decision, and, second, that Halkis participated in thatinfringement. Access to the file A  Incriminating evidence 3985. Hornos Ibéricos claims that one page of the minutes of the EPC SteeringCommittee meeting of 15 February 1989, namely document 33.126/13020, was notin the file sent to it during the administrative procedure. It was therefore not ina position to submit its observations on that document. 3986. However, even disregarding document 33.126/13020, it is clear that the Commissionprovided proof in the contested decision that the infringement existed and thatHornos Ibéricos participated in it. The allegation that Hornos Ibéricos suffered abreach of its rights of defence during the administrative procedure must thereforebe rejected (see paragraph 364 above). 3987. Blue Circle contends that there was insufficient reference in the SO to the minutesof the EPC meetings of 12 November 1981 (documents 33.126/11432 to 11440) and10 November 1982 (documents 33.126/11417 to 11420) referred to in recital 37,paragraph 5, of the contested decision. 3988. However, even disregarding the documents to which Blue Circle refers, it followsfrom the reasoning set out in paragraphs 3882 to 3915 above that the Commissionshowed in the contested decision that the EPC's activities constituted aninfringement. Moreover, the period to which those documents relate is no longermaterial to the infringement (see paragraphs 3973 to 3980 above). B  Exculpatory evidence 3989. Valenciana, Hornos Ibéricos and Blue Circle submit a series of observations basedon documents which they were able to consult following the measures of 2 October1996 and 18 and 19 June 1987 concerning access to the file. Those documentswould in their view have been of use during the administrative procedure for theirdefence against the objection upheld in Article 6 of the contested decision. 1. Case T-52/95 Valenciana v Commission 3990. First, Valenciana claims in its submissions of 10 February 1997 that a number ofdocuments to which it had access following the measure of 2 October 1996 showthat the EPC's activities did not in any way encroach on grey cement exports toMember States. On the contrary, when the EPC was in operation there wasconsiderable trade in cement between the Member States. In particular, theSpanish undertakings exported large quantities of grey cement both to marketsoutside the Community and to the markets of the Member States of theCommunity. In that regard, the applicant refers to the document entitled'Estimate of cement imports 1988 Great Britain (document 33.126/1901), whichshows that in 1988 producers in seven of the twelve Member States exportedcement to the United Kingdom. Other documents confirm the existence of exportsby Community producers, in particular exports by Spanish producers to France(SNFCC statistics on cement imports into France in 1985 and 1987 (documents33.126/14958 and 14965)) and Italy (letter of 19 January 1989 from Lafarge to thedirectorate of foreign economic relations (document 33.126/14799)). Last, it isapparent from a number of documents in the file on Greece that for the purposesof cement exports the Member States were regarded by the members of the EPCin the same way as non-Community countries. In that regard, Valenciana relies onCembureau statistics for May 1990 (document 33.126/19397) and AGCI statisticsfor 1989 (document 33.126/19418). It concludes that there was no agreementbetween the members of the EPC to exclude the Community markets fromoverseas exports. It also follows from the documents cited above that theCembureau agreement referred to in Article 1 of the contested decision did notexist. 3991. The Court points out that in the SO (paragraphs 9 and 61) and the contesteddecision (recitals 18, 19 and 45) the Commission relied on specific documentaryevidence to establish the existence of the Cembureau agreement. The Commissionalso relied on specific documentary evidence to establish that the rule on non-transhipment to home markets was the rule underlying the cooperation on overseasexports within the EPC and to establish that Valenciana participated in theconcerted practice within the framework of the EPC (SO, paragraphs 27 to 29 and67; contested decision, recitals 30, 35 to 37 and 59). 3992. The documents on which Valenciana relies show that some cement was exportedto European destinations. However, the Cembureau agreement did not prohibit'traditional or even structural inter-State trade (memorandum to the Chairmanfor the meeting of Head Delegates on 19 March 1984 (contested decision, recital19, paragraph 9; documents 33.126/11728 and 11729)), but was opposed to'random exports (notes on the meeting of Head Delegates of 19 March 1984(contested decision, recital 19, paragraph 10; documents 33.126/11733 to 11737)),namely uncontrolled or unregulated exports. Furthermore, none of the documentsto which the applicant refers concerns the applicant's conduct on the market. Itcannot therefore be established on the basis of those documents that the applicantmade 'random exports of grey cement to Community destinations during the period to which the contested decision relates. It follows that the documentsexamined are not of such a nature as to shed a different light on the specificdocumentary evidence on which the Commission relied to establish that theCembureau agreement existed and that Valenciana complied with the principle ofnon-transhipment to home markets within the framework of the EPC. 3993. It must be concluded, therefore, that the fact that Valenciana did not have accessto documents 33.322/1901, 33.126/14799, 14958, 14965, 19397 and 19418 during theadministrative procedure did not adversely affect its defence. 3994. Second, Valenciana relies in its observations of 22 December 1997 on a legalopinion of 24 October 1988 prepared for Blue Circle by a firm of lawyers(documents 33.126/11256 to 11259). It is apparent from that opinion that afterBlue Circle had probably described the activities carried out within the ECEC andthe EPC and made a detailed analysis of the minutes of those committees, thoselawyers advised Blue Circle that if it joined those committees it would run the riskthat the cooperation effected in those committees would be regarded as a violationof United States antitrust law. Valenciana considers that if a breach of Communitycompetition law had been just as obvious the lawyers concerned would inevitablyhave drawn their client's attention to that risk. The legal opinion thereforeindicates that the EPC's activities did not have as their object compliance with therule on non-transhipment to home markets. 3995. That argument must be rejected. The opinion sought from the firm of lawyers inquestion clearly related to the application of United States antitrust law to theactivities of the ECEC and the EPC at the time when Blue Circle was consideringwhether it was appropriate to (re)join one or other of those committees. However,in the legal opinion in question Blue Circle was warned in the following terms:'membership in the EPC or the ECEC ... would expose the company and its USinvestments to significant risks under US criminal and civil law. You may also wantto consider the implications of the European Community competition laws. Eventhough the opinion was confined to United States law, therefore, the lawyers nonethe less thought it necessary to remind their client that it was in its interest toobtain advice on the application of Community competition law. 3996. Third, Valenciana relies in its observations of 22 December 1997 on a Lafargeinternal memorandum of 25 April 1988 in which the possible advantages of analliance between Lafarge and the Spanish cement manufacturer Uniland areanalysed (documents 33.126/6916 to 6919): 'An alliance with Uniland may be ofstrategic interest in that it might discourage imports from producers in Barcelona;it would no doubt be unable to check attacks from Cementos del Mar or fromValencia. 3997. Even though, as the Commission observes in its submissions of 17 February 1998,the content of the document is speculative, it reveals that another member of the EPC, Lafarge, no longer saw Valenciana as being bound by the rule on non-transhipment to home markets, the rule underlying the activities of the EPC. Thedocument in fact refers to the possibility of a 'random attack by Valenciana. 3998. None the less, if Valenciana had had access to the document during theadministrative procedure that would not have altered the outcome of thatprocedure as regards the starting date of its participation in the infringement. Thefact that Valenciana might have been able to demonstrate during the administrativeprocedure, on the basis of the internal memorandum in question, that on 25 April1988 it was seen to be no longer complying with the rule underlying the activitiesof the EPC would not have been of such a nature as to shed a different light onthe specific documentary evidence referred to in the SO (paragraphs 27 to 29 and67) and in the contested decision (recitals 30, 35 to 37 and 59), which showunequivocally that Valenciana participated in EPC meetings before 25 April 1988,in the framework of which the participants colluded in order to prevent incursionsby competitors on respective national markets in the Community. 3999. It is common ground that Mr Manglano, from Valenciana, participated in the EPCmeetings of 18 November 1983 (contested decision, recital 36, paragraph 2;documents 33.126/11365 to 11373) and 13 May 1987 (contested decision, recital 36,paragraph 6; documents 33.126/13004 to 13011). Any participation in meetingswith a clearly anti-competitive object is covered by the concept of a concertedpractice prohibited by Article 85(1) of the Treaty, unless the undertaking openlydistances itself from what was agreed at the meetings. By its presence at thosemeetings, Valenciana, which does not even claim to have openly distanced itselffrom what was agreed at them, subscribed to the objective pursued at thosemeetings or, at the very least, gave the impression to the other participants that itdid so (see case-law cited at paragraph 1353 above). 4000. Consequently, the Lafarge internal memorandum of 25 April 1988 would have beenof use to Valenciana's defence against the objections upheld in Article 6 of thecontested decision, but only to show that its participation in the concerted practicewithin the framework of the EPC was of shorter duration. 4001. In its submissions of 17 February 1998 the Commission observes that the fact thatthere was some crossborder trade does not invalidate its assertions. It points outthat the contested decision refers to the existence of such trade. In that regard, itrefers to the minutes of the EPC meeting of 18 November 1983 (documents33.126/11365 to 11373) referred to in recital 36, paragraph 2, and to the documentby Mr Gac entitled 'EPC Beyond 1986 (documents 33.126/12771 to 12773)referred to in recital 36, paragraph 4. 4002. However, the tension which existed within the EPC in relation to certain intra-Community trade is not capable of concealing the fact that the Lafargememorandum of 25 April 1988 would have been of use to Valenciana's defence during the administrative procedure for the purpose of demonstrating that itsparticipation in the infringement was of shorter duration. 4003. The Commission argues that the memorandum was confidential and maintains thatit could not have been made available to Valenciana during the administrativeprocedure because of its confidential nature. 4004. That argument must be rejected. An undertaking's right to protection of itsbusiness secrets must be balanced against the safeguarding of the rights of thedefence (Case T-30/91 Solvay v Commission, cited in paragraph 106 above,paragraph 88). There was nothing to prevent the Commission from concealing theconfidential information in the passages of the Lafarge memorandum which wereof use to Valenciana's defence. 4005. It follows from all the foregoing that by not making the Lafarge memorandumavailable to Valenciana during the administrative procedure the Commissioninfringed that party's rights of defence. None the less, since Valenciana hadparticipated in the EPC meeting of 13 May 1987, which aimed to preventincursions by competitors on respective European national markets, theCommission would have found that it had participated in the infringement until thatdate even if the applicant had had access to the internal memorandum in questionduring the administrative procedure. Since the document might have altered theCommission's assessment of Valenciana's participation in the infringement after 13May 1987, Article 6 of the contested decision must therefore be annulled as regardsValenciana in so far as it finds that the infringement lasted beyond that date. 2. Case T-69/95 Hornos Ibéricos v Commission 4006. In its submissions of 10 December 1997 Hornos Ibéricos refers to two documentswhich in its view would have been of use for its defence against the objectionrelating to its participation in the activities of the EPC (Article 6 of the contesteddecision). 4007. First, it refers to a report to the Board of Directors of Hispacement of a visit bytwo employees of that company to the applicant on 26 June 1986 (documents33.322/2906 to 2909). That report states, in regard to exports to Algeria: 'HornosIbéricos gave the impression that it was not for the time being prepared to give anundertaking to Conmex which might restrict its opportunities of increasing itsexports. If it were forced to give such a commitment there would be a risk that itwould not comply with it and would subsequently seek to put an interpretation onthe commitment that would justify its conduct. Hornos Ibéricos considers that ifthe alleged restrictions of exports to countries outside the Community had theobject or effect of restricting competition within the Community, it would benecessary to accept, by contrary inference, that the clear approach which it took by not agreeing to restrict its exports also assumed a clear intention not to restrictcompetition within the Community. That approach also indicates that the applicantwas firmly resolved to make its own decisions and to act independently. 4008. The Court points out that the Commission relied on specific documentary evidencein the SO (paragraphs 27 to 29 and 67) and in the contested decision (recitals 30,35 to 37 and 59) to establish the concerted practice within the framework of theEPC referred to in Article 6 of the contested decision. The document to whichHornos Ibéricos refers has no connection with the activities of the EPC and,accordingly, is not of such a nature as to shed a different light on the specificdocumentary evidence on which the Commission relied in establishing theinfringement. Furthermore, the Court finds that in the SO (paragraph 67) and inthe contested decision (recital 59) the Commission considered that the activities ofthe EPC were not intended to restrict sales of cement on markets outside theCommunity but, on the contrary, to channel production surpluses to marketsoutside the Community in order to safeguard compliance with the rule on non-transhipment to European home markets. Far from refuting the Commission'sargument, Hornos Ibéricos's refusal to place a limit on its sales to Algeria istherefore perfectly consistent with that argument. 4009. Second, Hornos Ibéricos refers to the minutes of an EPC meeting held in Londonon 13 February 1987 (documents 33.126/18181 to 18187). It points out that theintra-Community cement market was not on the agenda and was not raised duringthe discussions. It was thus not possible to infer from those minutes that themembers of the EPC had knowingly examined the situation on the Communitycement market in order to devise and implement a sales strategy of not supplyingcement to customers in the Community. 4010. The Court observes that Hornos Ibéricos, as a member of the EPC, must havereceived a copy of the minutes of the EPC meeting of 13 February 1987. It wouldtherefore have been able to rely on that document during the administrativeprocedure if it had thought it of use to its defence. Consequently, there can be noquestion of a breach of the rights of the defence (see paragraph 248 above). Furthermore, it should be pointed out that the Commission relied on specificdocumentary evidence in the SO (paragraphs 27 to 29 and 67) and in the contesteddecision (recitals 30, 35 to 37 and 59) to establish a link between the discussionsheld within the EPC and intra-Community trade. The fact that the minutes of theEPC meeting of 13 February 1987 do not mention the intra-Community market isnot of such a nature as to shed a different light on that specific evidence, whichshows the existence of a concerted practice within the framework of the EPC, theobject of which was to channel production surpluses towards countries outside theCommunity in order to prevent incursions by competitors on respective nationalmarkets in the Community. 3. Case T-88/95 Blue Circle v Commission 4011. Blue Circle maintains that document 33.322/1485 would have been useful to itsdefence against the objection relating to its participation in the activities of theEPC (Article 6 of the contested decision). 4012. The Court points out that that document is identical to document 33.126/12751,which was in the Box (see paragraph 95 above) and to which Blue Circle hadaccess during the administrative procedure. 4013. Blue Circle also claims that a series of documents (documents 33.322/1488 to 1507)relating to the ECEC corroborate its argument that the sole object of the exportcommittees referred to in the contested decision was to increase prices for overseasexports, not, as the Commission has always maintained, to increase the volume ofthose exports. Those documents show the complete absence of any link betweenthose export committees and the principle of non-transhipment to home markets. Blue Circle claims that document 33.322/1494 expressly states that 'under itsconstitution, the Committee does not discuss or concern itself in any way withexports by its members to West European countries. Any recommendations madeby the Committee, therefore, could not apply to such exports. 4014. The Court points out that the Commission did not raise against Blue Circle theobjection upheld in Article 5 of the contested decision concerning the activities ofthe ECEC. As regards cooperation on overseas exports, Blue Circle was foundliable only in respect of the activities of the EPC (Article 6 of the contesteddecision). It follows that the comments which Blue Circle makes on the basis ofdocumentary evidence relating to the ECEC have no relevance to the infringementsof which it is accused. In any event, the comments which Blue Circle might havebeen able to make on the basis of the documents referred to would not have beenof such a nature as to shed a different light on the specific documentary evidenceon which the Commission relied in the SO (paragraphs 27 to 29 and 67) and in thecontested decision (recitals 30, 35 to 37 and 59) in concluding that there was, withinthe EPC, a concerted practice 'designed to prevent incursions by competitors onrespective national markets in the Community. Conclusions 4015. Article 6 of the contested decision must be annulled in its entirety so far as itconcerns Heracles and Titan. It must be annulled with regard to Halkis in so faras it finds an infringement of Article 85(1) of the Treaty before 18 November 1983and after 1 September 1986. It must also be annulled with regard to CimentsFrançais, Lafarge and Blue Circle in so far as it finds an infringement of Article85(1) of the Treaty before 18 November 1983. It will also be annulled with regard to Valenciana in so far as it finds an infringement of Article 85(1) of the Treatyafter 13 May 1987. The remaining pleas must be rejected.                                                                     XII  Pleas alleging errors of assessment and infringements of Article 85(1) and 190of the Treaty, the principle of equal treatment and the rights of the defence in that theCommission classified as a single and continuous agreement the infringement referredto in Article 1 of the contested decision and found that the various parties involvedhad participated in that single and continuous agreement 4016. All the applicants claim that the Commission committed an error of assessmentand/or an infringement of the provisions of Article 85(1) of the Treaty in findingthat they participated in the infringement referred to in Article 1 of the contesteddecision. SFIC (T-36/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), Alsen-Breitenburg (T-45/95), Nordcement (T-46/95), Rugby (T-53/95),Castle (T-56/95), Uniland (T-58/95), Oficemen (T-59/95), Italcementi (T-65/95),Hornos Ibéricos (T-69/95), Aker T-70/95), EUROC T-71/95), Cementir (T-87/95)and Blue Circle (T-88/95) specifically dispute the classification of the infringementas a single and continuous agreement. 4017. SFIC, Vicat (T-37/95), Ciments Français (T-39/95), Asland (T-55/95), Uniland,Cimpor (T-61/95), SECIL (T-62/95), Italcementi, Aker, EUROC, Blue Circle andAGCI (T-103/95) complain that the method employed to attribute liability for theinfringement referred to in Article 1 of the contested decision infringes theprinciple of non-discrimination. Furthermore, CBR (T-25/95), Dyckerhoff (T-35/95), SFIC, Vicat, Ciments Français, Heidelberger, Aalborg, BCA (T-54/95),Asland, Irish Cement (T-60/95), Italcementi, Holderbank (T-68/95), Aker, EUROC,Blue Circle, AGCI and Halkis (T-104/95) claim that there has been an infringementof Article 190 of the Treaty. 4018. Finally, all the applicants apart from BCA and Halkis claim infringement of theirrights of defence in that they were not given sufficient access during theadministrative procedure to the documents in the Commission's file relating to theobjection upheld in Article 1 of the contested decision. Contested decision 4019. The infringement referred to in Article 1 of the contested decision relates to theCembureau agreement, which is described in the contested decision as a single andcontinuous agreement constituted by 'the whole of the arrangements adoptedwithin the framework of Cembureau and the bilateral and/or multilateral meetingsand contacts (contested decision, recital 46, paragraph 1, first subparagraph). 4020. Thus in the contested decision the exchanges of price information (Article 2), theFranco-Italian concerted practices (Article 3(1)), the Hispano-Portugueseagreement (Article 3(2)), the Franco-German agreements and concerted practices(Article 3(3)), the setting-up of the ETF and the various measures associated withthat task force (Article 4), the activities of the ECEC (Article 5) and the activitiesof the EPC (Article 6) were all regarded as constituent elements of the single andcontinuous Cembureau agreement. 4021. In reaching that conclusion the Commission relies on two findings. 4022. First, it observes that the conduct referred to in Articles 2 to 6 of the contesteddecision pursue the same objective, 'namely the common rule on non-transhipmentto home markets (contested decision, recital 46, paragraph 2, secondsubparagraph). 4023. Second, the Commission observes that all the participants in the conduct referredto in Articles 2 to 6 of the contested decision were aware that their actions werepart of a 'joint plan (contested decision, recital 46, paragraph 2, thirdsubparagraph). The Commission maintains that 'the situation is characterised bythe accession of the European cement industry, directly or through the nationaltrade associations, to a common rule and by the implementation of that rule, in thevarious specific cases, by those most directly involved (contested decision, recital46, paragraph 2, second subparagraph). The fact that the various addressees of thecontested decision did not participate in all the measures which implemented theCembureau agreement does not affect the classification of the infringement as asingle and continuous agreement. The Commission observes (contested decision,recital 46, paragraph 2, third subparagraph) that '... it is the very essence ofassistance by undertakings in accomplishing a joint plan that there should bedifferent actions and actors which, however, interact to contribute to the commonobjective pursued. Participation by the applicants concerned in the single and continuous Cembureauagreement 4024. The Court must examine, first, whether the various types of conduct referred to inArticles 2 to 6 of the contested decision are manifestations of adherence to theobjective of the Cembureau agreement concluded at the Head Delegates meetingof 14 January 1983 and, as such, constituent elements of a single Cembureauagreement. Second, it will be necessary to examine whether the participation byeach undertaking or association of undertakings in the infringement was continuousand to determine the duration of such participation. A  A single Cembureau agreement 4025. It is necessary first to ascertain whether, as the Commission claims, the conductreferred to in Articles 2 to 6 of the contested decision, on the one hand, and theCembureau agreement, on the other, pursued the same objective (contesteddecision, recitals 46, paragraphs 1 and 2, and 48, paragraph 2). Next, it will benecessary to examine whether the Commission was correct to take the view that allthe participants in the conduct referred to in Articles 2 to 6 of the contesteddecision were aware that their actions were part of a 'joint plan, namely theCembureau agreement (contested decision, recital 46, paragraph 2, thirdsubparagraph). 1. Identity of object between the measures called in question in Articles 2 to 6 ofthe contested decision and the Cembureau agreement 4026. All the applicants contend that the various types of conduct called in question inArticles 2 to 6 of the contested decision, or at least those in which theyparticipated, did not pursue the same objective as the alleged Cembureauagreement. Each measure called in question in the contested decision pursued itsown specific objective and did not form part of a pan-European agreement orconcerted practice. 4027. In that regard, it should be pointed out that the types of conduct in question canonly be regarded as constituent elements of the single Cembureau agreement if itis established that they formed part of an overall plan pursuing a common objective(Rhône Poulenc v Commission, cited at paragraph 1053 above, paragraph 126). 4028. It is necessary, therefore, first to examine whether, as the Commission claims, 'thecommon rule of non-transhipment to home markets ... governs and conditions allthe other arrangements [referred to in Articles 2 to 6 of the contested decision],which were agreed in order to back up the rule and/or assist in its application(contested decision, recital 46, paragraph 1, second subparagraph). 1.1. Exchanges of information (Article 2 of the contested decision) 4029. Ciments Luxembourgeois and SFIC claim that the exchanges of informationorganised within Cembureau were not classified in the contested decision asmeasures implementing the Cembureau agreement. 4030. That argument must be rejected. According to the actual wording of Article 2(1)and (2), those exchanges were designed to facilitate the implementation of theCembureau agreement. Furthermore, recital 46, paragraph 1, first subparagraph,states that 'the whole of the arrangements referred to in the contested decisionconstituted a 'single and continuous agreement. Finally, Article 9 of the contesteddecision states that 'the infringement found in Article 1 ... was put into effect, in particular, by the conduct set out in Articles 2-6. Consequently, when theCommission stated that Ciments Luxembourgeois, which had taken part in theexchanges of information referred to in Article 2(1) and (2) of the contesteddecision, had not 'put into effect any implementing measure (contested decision,recital 65, paragraph 9(b), third indent; see also recital 65, paragraph 3, thirdsubparagraph, indent (a)), its point was that Ciments Luxembourgeois, unlike allthe other undertakings referred to in the contested decision, had not participatedin any of the measures implementing the Cembureau agreement on the market thatwere referred to in recital 65, paragraph 3, first subparagraph, of the contesteddecision, that is to say, the conduct referred to in Articles 3 to 6. It certainly didnot take the view that the exchanges of information referred to in Article 2 of thecontested decision were not a constituent element of the single Cembureauagreement. 4031. Furthermore, the Court has already held that the Commission was entitled to takethe view that the specific exchanges of information referred to in Article 2(1) of thecontested decision and the periodic exchanges of information referred to in Article2(2) of the contested decision were designed, to the extent specified above inparagraphs 1501 to 1518 and 1576 to 1647 respectively, to 'facilitate theimplementation of the [Cembureau] agreement. 4032. Since the objective pursued by the exchanges of information corresponded to theobjective of the Cembureau agreement, namely non-transhipment to home markets,it must be concluded that there was identity of object between the Cembureauagreement and the conduct referred to in Article 2 of the contested decision. 1.2. Franco-Italian concerted practices (contested decision, Article 3(1)) 4033. The Commission distinguished three Franco-Italian concerted practices: onebetween Lafarge and Buzzi (Article 3(1)(a)), one between Ciments Français andBuzzi (Article 3(1)(b)) and one between Vicat and Buzzi (Article 3(1)(c)). 4034. As regards the concerted practice between Lafarge and Buzzi, the Commissionfound that these two undertakings had taken concerted action 'to restrict theirautonomy of behaviour ... [in order] to share the market in the south of France(contested decision, recital 48, paragraph 3, second subparagraph). 4035. The Commission refers in that regard to a record of a meeting between Mr Buzziand Mr Saint-Hillier of Lafarge (contested decision, recital 20, paragraph 3;documents 33.126/6857 bis), which summarises Buzzi's position as follows: ' The market belonged to Ciments Lafarge.  No desire to enter Côte d'Azur to upset the market.  They have had only two or three customers in 20 years.  A war is pointless.  Agreements must be concluded to avoid conflict. 4036. It follows from the very words of that record that there was identity of objectbetween the infringement referred to in Article 3(1)(a) of the contested decisionand the Cembureau agreement, namely non-transhipment to home markets. 4037. As regards the concerted practice between Vicat and Buzzi, the Commission refersin the contested decision to a telex of 23 May 1986 from Buzzi to Vicat (contesteddecision, recital 20, paragraph 5; documents 33.126/6144), which states: 'We havereceived requests to supply cement not only from Nice but also Toulon. Wereplied in the negative to all such requests and intend to continue so doing. 4038. The Court must therefore conclude, as the Commission did (contested decision,recital 20, paragraph 6) that the fact that Buzzi informed Vicat of its refusal to fillcement orders from the south of France, and that it intended to continue doing so,constituted market sharing between Buzzi and Vicat. Although Vicat and Buzzi arenot expressly accused in Article 3(1)(c) of the contested decision of havingparticipated in a concerted practice involving market sharing (see paragraph 1927above), it is none the less the case that the extract from Buzzi's telex to Vicat of23 April 1986 shows that the exchange of information objected to reflected thedesire 'not to disrupt the market in the south of France (contested decision,recital 48, paragraph 6, third subparagraph). The objective pursued by the conductreferred to in Article 3(1)(c) of the contested decision was therefore to help ensurecompliance with the rule of non-transhipment to home markets. 4039. It follows that the concerted practice between Vicat and Buzzi and the Cembureauagreement also pursued the same objective. 4040. As regards, finally, the concerted practice between Ciments Français and Buzzi, itinvolved 'information on current prices and a forecast of price increases, with aview to the restriction of their autonomy of conduct (contested decision, Article3(1)(b)). 4041. The Court points out that, in contrast to the documents invoked in support of theinfringements referred to in Article 3(1)(a) and (c), the only document on whichthe Commission relies to establish the infringement referred to in Article 3(1)(b),namely the fax dated 17 March 1988 from Ciments Français to Buzzi (contesteddecision, recital 20, paragraph 4; documents 33.126/11982 to 11987) does notexpress any intention on the part of those undertakings to observe any principle ofnon-transhipment to home markets. Nor does the Commission state anywhere inthe contested decision that by the exchange of prices referred to in Article 3(1)(b) Ciments Français and Buzzi sought to observe such a principle. It merely states inrecital 20, paragraph 6, of the contested decision that 'the reason why CimentsFrançais communicated its price list and forecast price increases and why Vicat sentits price list was so that Buzzi could align its cement prices in France on CimentsFrançais and Vicat prices. The Commission goes on to state (same paragraph),in relation to the infringement referred to in Article 3(1)(c) of the contesteddecision, that 'the fact that Buzzi informed Vicat both of its refusal to fill cementorders from the south of France and that it intended to continue doing soconstitutes sharing the south of France market. However, it puts forward nosimilar explanation in relation to the infringement referred to in Article 3(1)(b) ofthe contested decision. Last, the Commission again seeks to link that agreementonce more with the Cembureau agreement when it claims that the Cembureauagreement also sought 'to align cross-frontier sales prices on local prices(contested decision, recital 48, paragraph 1). The Court points out, however, thatthat aspect falls within the scope of the 'fair competition rules (see contesteddecision, recital 47, paragraph 2), which the Commission accepts did not constitutethe subject-matter of an objection in the contested decision (see, in particular,paragraph 1513 above). 4042. Consequently, it must be concluded that the Commission has failed to establishidentity of object between the Cembureau agreement and the concerted practicereferred to in Article 3(1)(b) of the contested decision. 1.3. The Hispano-Portuguese agreement (Article 3(2)) 4043. The record drawn up by Cimpor of a meeting held on 22 July 1985 (contesteddecision, recital 21, paragraph 2; documents 33.322/155 to 157) states: 'The partiespresent, who may be regarded as the representatives of Spanish and Portuguesecement producers, expressed their clear support for the principle that there shouldbe no cement movements from Spain to Portugal or from Portugal to Spain thatare not instigated or controlled by the cement industry of either country. Similarly,the admissible part of the Hispacement document (contested decision, recital 21,paragraph 2; documents 33.322/2901) refers to the fact that 'the Chairmen of thePortuguese cement companies met at the premises of Oficemen with their Spanishcounterparts in December [1985], at which time it was decided to agree on areciprocal ban on exports between the two countries. 4044. It is unequivocally clear from those two documents that the objective pursued bythe parties to the Hispano-Portuguese agreement referred to in Article 3(2) of thecontested decision corresponded perfectly to the objective of the Cembureauagreement. 1.4. Franco-German agreements and concerted practices (contested decision,Article 3(3)) 4045. The Franco-German agreements and concerted practices referred to in Article 3(3)of the contested decision consist of two elements. In Article 3(3)(a) theCommission finds that a number of French and German undertakings, and theFrench and German associations (SFIC and BDZ) participated 'in agreements andconcerted practices involving the regulation of cement supplies from France toGermany and from Germany to France. Article 3(3)(b) of the contested decisionthen states that BDZ and SFIC participated in a 'concerted practice involving theexchange of information designed to monitor compliance with the quantitativerestrictions on exports between France and Germany and to monitor thedestination of such exports in terms of the various German Länder. 4046. As regards the infringement found in Article 3(3)(a) of the contested decision, andto the extent specified in paragraph 2469 above, it is apparent from the documentsanalysed in recital 22 of the contested decision that, following the exports by Cedestto the German Länder other than Saarland and the German producers' reactionin France, bilateral consultations took place with a view to limiting cross-frontierflows of cement. Thus the Lafarge internal memorandum dated 23 June 1982(contested decision, recital 22, paragraph 4; documents 33.126/6592 to 6596) states:'We clearly expressed the opinion that each party should remain within itsborders. In that regard, the memorandum refers to the 'Home market principle. It also follows from a summary record by Ciments Français (contested decision,recital 22, paragraph 9; documents 33.126/4251 to 4253) that Dyckerhoff hadinformed Ciments Français that it did not intend selling in France. 4047. The letter which the Chairman of Ciments Français, who was also Chairman ofSFIC, wrote to the Chairman of Heidelberger, who was also Chairman of BDZ(contested decision, recital 22, paragraph 10; documents 33.126/3574 to 3576)states, inter alia: '... Ted Brenke [of Heidelberger] expressed ... the opinion that ifwe were to renew our agreement, there would be a demand from the German sidethat the gap existing since 1984 between French and German deliveries be reduced. I told him that, if this demand were to be maintained, I saw very little hope in ourreaching a further agreement. As you remember, there was no logical and, evenless, ethical justification for this gap, which was not, in fact, the result of bilateraldiscussions between French and German interests ... 4048. As the Commission maintains in the contested decision (recital 50, paragraph 4),and as also follows from the Court's assessment in paragraphs 2427 to 2433 above,the concerted practices involved in the pursuit of a solution on the limiting of salesby Cedest in Germany other than the Saarland, and the 1984 agreement, which wasto be renewed and which is referred to in the letter of 22 September 1986, all hadas their object 'non-transhipment to home markets and the regulation of sales fromone country to another, i.e. market-sharing (contested decision, recital 45, paragraph 9). It follows that the infringement found in Article 3(3)(a) of thecontested decision pursued the same objective as the Cembureau agreement. 4049. As regards the infringement found in Article 3(3)(b) of the contested decision, itconsists, to the extent specified in paragraphs 2471 to 2491 above, in a concertedpractice involving an exchange of information between SFIC and BDZ designed tomonitor compliance with quantitative restrictions on exports between France andGermany. It is therefore an infringement which supplements the infringementfound in Article 3(3)(a) of the contested decision and which pursues the sameobjective. There is thus also identity of object between the exchange of informationreferred to in Article 3(3)(b) and the Cembureau agreement. 1.5. Elements of the single agreement relating to the ETF (Article 4 of thecontested decision) 4050. The Court has already found (see paragraph 2537 above) that by means of theagreement on the setting-up of the ETF referred to in Article 4(1) of the contesteddecision the undertakings and associations concerned sought to 'eliminate importsto Western Europe, presently imports from Greece (record of the ETF meetingheld in Geneva on 19 August 1986 (contested decision, recital 25, paragraph 15;annex 15 to Aker's and EUROC's reply to the SO)). The objective pursued insetting up the ETF was therefore non-transhipment to European home markets. 4051. Next, the Court points out that the agreements and concerted practices referredto in Article 4(2) and (3) were inspired by the same anti-competitive purpose. Theagreement on the setting-up of Interciment referred to in Article 4(2) was designedto implement dissuasive and persuasive measures vis-à-vis producers which, notfeeling that they were bound by the rule on non-transhipment to European homemarkets, threatened the stability of the markets in the member countries ofCembureau (see paragraph 2978 above). The aim of the concerted practicesidentified in Article 4(3)(a) and the agreement referred to in Article 4(3)(b) wasto prevent, with anti-competitive intent, imports by the Feruzzi/Calcestruzzi groupof Greek cement (see paragraphs 3163 to 3356 above) and thus to restore orderon the market by respecting national frontiers. 4052. In the light of the foregoing observations, it must be concluded that theinfringements referred to in Article 4(1) to (3) had the same objective  whichentitled the Commission to conclude that there was a single agreement relating tothe ETF (see paragraph 3706 above)  and, furthermore, that that objectivecorresponded perfectly to the objective of the Cembureau agreement. 4053. On the other hand, since Article 4(4) of the contested decision must be annulledin its entirety (see paragraph 3769 above), as it has not been established that thepurchases referred to in that provision were designed to prevent imports of Greek products into Western Europe, the conduct in question cannot be held to havebeen inspired by the rule on non-transhipment to home markets. 1.6. ECEC (Article 5 of the contested decision) 4054. The Court has already held that the Commission has not established that theECEC's activities were designed to comply with the rule that there should be notranshipment to home markets, and that Article 5 of the contested decision musttherefore be annulled (see paragraphs 3849 and 3850 above). Consequently, theactivities within the ECEC cannot be regarded as a measure implementing theCembureau agreement. 1.7. EPC (Article 6 of the contested decision) 4055. The Court has already held (see paragraph 3919 above) that the Commission wasentitled to take the view that the cooperation within the EPC was designed to'prevent incursions by competitors on respective national markets in theCommunity (Article 6 of the contested decision). 4056. Since the aim of the cooperation within the EPC corresponded to the objective ofthe Cembureau agreement, namely that there should be no transhipment to homemarkets, it must be concluded that the objects of the Cembureau agreement andthe conduct referred to in Article 6 of the contested decision were identical. 1.8. Conclusions 4057. It follows from the foregoing analysis that the conduct referred to in Article 2,Article 3(1)(a) and (c), (2) and (3), Article 4(1) to (3) and Article 6 of thecontested decision all pursued the same anti-competitive object as the Cembureauagreement. The Commission was fully entitled to conclude that the objective of allthis conduct was the common rule of non-transhipment to home markets (contesteddecision, recital 46, paragraph 2). 4058. On the other hand, since it has not been established that the conduct referred toin Article 3(1)(b), Article 4(4) and Article 5 of the contested decision pursued thesame objective as the Cembureau agreement, that conduct cannot be regarded aselements of the infringement referred to in Article 1 of the contested decision. 2. The participants' awareness 2.1. Proof of participation by the various categories of applicants concerned 4059. All the applicants maintain that they were never aware of the Cembureauagreement supposedly concluded and confirmed at the Head Delegates meetingsheld on 14 January 1983, 19 March and 7 November 1984. 4060. As they observe, identity of object between the various bilateral and multilateralarrangements and the Cembureau agreement does not in itself suffice to show thatthe arrangements in which the applicants participated constituted measuresimplementing the Cembureau agreement (see, to that effect, the judgment inCommission v Anic, cited at paragraph 270 above, paragraph 203). If theapplicants were not aware of the existence of a Cembureau agreement, thoseactions could not constitute the expression of their accession to or participation inthat agreement. 4061. It is necessary, therefore, to examine whether the Commission was entitled to takethe view in the contested decision (recital 46, paragraph 2) that the parties to thebilateral and multilateral agreements that had the same anti-competitive objectiveas the Cembureau agreement were aware that their conduct formed part of thejoint plan adopted and confirmed at the Head Delegates meetings held on 14January 1983, 19 March and 7 November 1984 (see paragraph 4023 above). 4062. In order to do so, it is necessary to distinguish two categories of applicants. 4063. As regards, first, Cembureau and its direct members, with the exception of Unicem,it has already been held that the Commission has established that they participatedin the infringement referred to in Article 1 of the contested decision (seeparagraphs 1400 to 1403 above). In the contested decision, proof that thoseassociations and undertakings participated in the single Cembureau agreement isbased not on their participation in a measure implementing that agreement but ontheir direct membership of Cembureau and their participation in one or moreHead Delegates meetings at which the Cembureau agreement was concludedand/or confirmed (see paragraphs 1301 and 1302 above). 4064. Cembureau and its direct members, all of which, with the exception of Unicem,participated in one or more of those meetings (see paragraphs 1342 to 1353above), must have been aware that their participation in one or more of thebilateral or multilateral arrangements with an object identical to that of theCembureau agreement took place within the framework of that agreement. Theirparticipation in arrangements which pursued the objective of non-transhipment tohome markets therefore constituted, on their part, the implementation of theCembureau agreement and, accordingly, manifested their continuous adherence tothe infringement referred to in Article 1 of the contested decision. 4065. Awareness is therefore established in the case of Cembureau, FIC, VNC, CimentsLuxembourgeois, SFIC, Aalborg, BDZ, BCA, Oficemen, Irish Cement, ATIC,Italcementi, Aker, EUROC, Cementir and AGCI. Accordingly, there is no need in the case of those parties to examine the various links (see paragraphs 4069 to4073 below) which the Commission puts forward in the contested decision in orderto establish a connection, in terms of their awareness, between the various bilateraland multilateral arrangements in which they participated and the Cembureauagreement. 4066. As regards, second, the indirect members of Cembureau, and Unicem and Buzzi,the Court has pointed out that in the contested decision (recitals 45, paragraphs 10and 13, and 65, paragraph 3) proof of their participation in the infringementreferred to in Article 1 is based on their participation in one or more measuresimplementing the Cembureau agreement (see paragraphs 1439 to 1448 above). Participation by those parties in a measure implementing the Cembureauagreement shows that they acceded to the agreement concluded and confirmed atthe Head Delegates meetings. 4067. Those applicants observe that even if the Head Delegates present at the relevantmeetings had concluded a Cembureau agreement, the contested decision does notestablish that the Head Delegates concerned informed them of the existence of thatagreement. The fact that they may have participated in a local agreement cannottherefore be regarded as a manifestation of their accession to the Cembureauagreement. 4068. It is particularly important, therefore, to show awareness in the case of thoseapplicants. If the Commission fails to show that they knew, or must necessarilyhave known, that the bilateral and multilateral arrangements pursuing the sameobjective as the Cembureau agreement in which they participated were part of apan-European agreement on non-transhipment to home markets and the regulationof sales from one country to another, they cannot be held to have participated inthe single infringement referred to in Article 1 of the contested decision. 2.2. Links adduced as evidence in the contested decision 4069. In the contested decision the Commission relies on a number of factors to showthat the participation of the addressees of the contested decision in a multilateralor bilateral arrangement having the same object as the Cembureau agreement mustbe regarded as a manifestation of their participation in the Cembureau agreement. 4070. First, the Commission states (contested decision, recital 65, paragraph 3(b)): 'Theundertakings Blue Circle, CBR, Ciments Français, Lafarge, Dyckerhoff,Heidelberger, Titan, ENCI, Asland and Cimpor, though not direct members ofCembureau, represented their national associations as Head Delegates at themeetings organised by Cembureau on 14 January 1983, 19 March 1984 and 7November 1984: there is thus no doubt as to the participation of these undertakingsin the [Cembureau] agreement. 4071. Second, the Commission considers that at the Head Delegates meetings theassociations which were direct members of Cembureau entered into 'commitments... in the interests of their members and that, 'in point of fact, the cementproducers are the real actors, acting through their trade associations (contesteddecision, recital 44, paragraph 5; see also recital 46, paragraph 2, secondsubparagraph). 4072. Third, the Commission refers to the letter convening the meeting of HeadDelegates on 14 January 1983 (contested decision, recital 19, paragraph 2;documents 33.126/11552 and 11553) and to the draft introductory statement of theChairman for the same meeting (contested decision, recital 19, paragraph 5;documents 33.126/11583 to 11585) and concludes (contested decision, recital 46,paragraph 2, fourth subparagraph; see also recital 50, paragraph 3, fourthsubparagraph): 'Cembureau and its members ... acknowledge that the frictions dueto inter-member trade are of common interest, because they constituteinfringements of the common rules of the game. Such bilateral situations are,thus, a specific manifestation of the general agreement not to tranship to homemarkets. It continues (contested decision, recital 46, paragraph 2, fifth and sixthsubparagraphs): 'It is not necessary ... that each bilateral or multilateral situationshould have been discussed explicitly at the Cembureau meetings, although suchdiscussion can be demonstrated in the case of some of them ... It is evident fromthe Cembureau documents that only those situations which it had obviously notbeen possible to resolve through direct contacts between the parties concernedwere discussed at the meetings. For example, the hot spot between Italy andSwitzerland, included in the memorandum to the chairman of the meeting of HeadDelegates held on 19 March 1984 ... does not seem to have been discussed at themeeting because the dispute ... was about to be resolved ... It follows that theimplementation of the general agreement covers not only the situations specificallymentioned in the Cembureau documents, but also those which were apparentlyresolved through direct contacts between the parties concerned, as in the case ofthe situations involving France and Italy, and Spain and Portugal. 4073. Fourth, and last, the Commission refers in the context of the ETF and the EPC tothe existence of an institutional link between the ETF and Cembureau (contesteddecision, recital 24) and between the EPC and Cembureau (contested decision,recital 59, paragraph 1, first subparagraph) to demonstrate that the conductreferred to in Articles 4 and 6 of the contested decision constituted measuresimplementing the Cembureau agreement. 2.3. Proof of the participation of the indirect members of Cembureau and ofUnicem and Buzzi in the Cembureau agreement through their participation in ameasure implementing that agreement 4074. The Court has already held that the Commission has not established that theconduct referred to in Article 3(1)(b), Article 4(4) and Article 5 of the contesteddecision constituted constituent elements of the Cembureau agreement (seeparagraph 4058 above). Furthermore, Article 3(3)(a) and Article 6, must beannulled in so far as they relate to Cedest (see paragraphs 2384 and 2385 above)and to Heracles and Titan (see paragraph 3970 above) respectively. 4075. It follows that the finding in the contested decision that certain indirect membersof Cembureau, namely ENCI, Cedest, Nordcement, Alsen-Breitenburg, Rugby,Castle, Heracles and Titan, participated in a measure implementing the Cembureauagreement is not established. In Cedest's case, the conduct referred to in Article3(3)(a) of the contested decision is, according to the contested decision, the onlymanifestation of its accession to the Cembureau agreement. The same applies toRugby's participation in the conduct referred to in Article 4(4)(a) of the contesteddecision and to the participation of ENCI, Nordcement and Alsen-Breitenburg inthe conduct referred to in Article 5 of the contested decision. Castle's participationin the arrangements referred to in Article 4(4)(a) and Article 5 of the contesteddecision is also the only manifestation of its participation in the Cembureauagreement. Last, the conduct referred to in Article 4(4) and that referred to inArticle 6 of the contested decision constitute the only 'measures implementing theCembureau agreement in which Heracles and Titan are alleged to haveparticipated. 4076. The indirect members of Cembureau are expressly stated in the contested decisionto have participated indirectly in the Cembureau agreement 'through theirparticipation in the various arrangements and measures agreed on to supplementthe general agreement and/or assist in its implementation (contested decision,recital 45, paragraph 10). For that reason, Article 1 covers only the undertakingswhich (contested decision, recital 65, paragraph 3) 'clearly manifested theiraccession to the [Cembureau] agreement by participating [in a measureimplementing that agreement]. 4077. Since the Commission has failed to show that ENCI, Cedest, Nordcement, Alsen-Breitenburg, Rugby, Castle, Heracles and Titan participated in a measureimplementing the Cembureau agreement, it is not entitled, according to the methodit uses in the contested decision to attribute liability, to find that thoseundertakings, all indirect members of Cembureau, participated in the infringementreferred to in Article 1 of the contested decision. 4078. The Commission cannot claim, as it has done in these proceedings, that theparticipation of ENCI and Titan in the Cembureau agreement is established in anyevent because a member of the staff of those undertakings participated in the HeadDelegates meeting of 14 January 1983 at which that agreement was concluded. Itmust be pointed out in that regard that, as presented in the contested decision, thatcircumstance did not suffice to support a finding that an indirect member of Cembureau participated in the infringement referred to in Article 1 (see paragraph1441 above). Proof that an indirect member of Cembureau participated in theCembureau agreement is based solely on its participation in one or more measuresimplementing the Cembureau agreement. For that reason, indirect members ofCembureau whose staff had attended one or more Head Delegates meetings wereregarded, like the other indirect members but unlike the direct members, as having'participated indirectly in the [Cembureau] agreement, through their participationin the various arrangements and measures agreed on to supplement the generalagreement and/or assist in its implementation (contested decision, recital 45,paragraph 10). For that reason, too, Ciments d'Obourg, which was an indirectmember of Cembureau and whose staff had attended the Head Delegates meetingof 14 January 1983 (contested decision, recital 19, paragraph 4), is not referred toin Article 1 of the contested decision, since the Commission did not find that it hadparticipated in one of the measures implementing the Cembureau agreement. 4079. Article 1 of the contested decision must therefore be annulled in so far as itconcerns ENCI, Cedest, Nordcement, Alsen-Breitenburg, Rugby, Castle, Heraclesand Titan. 4080. The Court must next consider whether the Commission was entitled to find that theother indirect members of Cembureau, namely CBR, Dyckerhoff, Vicat, CimentsFrançais, Heidelberger, Lafarge, Valenciana, Asland, Uniland, Cimpor, SECIL,Holderbank, Hornos Ibéricos, Blue Circle and Halkis, acceded to the single andcontinuous Cembureau agreement through their participation in one or more of thebilateral or multilateral arrangements referred to in the contested decision whichhad the same object as the Cembureau agreement. It must do likewise in the caseof Unicem, a direct member of Cembureau which did not participate in any of theHead Delegates meetings, and that of Buzzi, which was neither a direct nor indirectmember of Cembureau. 4081. In the case of those undertakings the Court must therefore determine whether thelinks referred to in paragraphs 4069 to 4073 above are of such a kind as toestablish a connection between their participation in an agreement or concertedpractice that had the same object as the Cembureau agreement and theCembureau agreement itself, a connection which would show that theirparticipation constituted a manifestation of their accession to the Cembureauagreement. 2.3.1. Presence of a member of staff at the Head Delegates meetings at which theCembureau agreement was concluded and/or confirmed 4082. The Commission relies on the presence of a member of staff of certain indirectmembers of Cembureau at the Head Delegates meetings in order to show that theyparticipated in the Cembureau agreement (contested decision, recital 65, paragraph 3(b)). A Head Delegate who represented the national association was indeednormally a senior executive of an undertaking in the cement sector in the countryin question. The Court points out, however, that, from the angle of the contesteddecision, the presence of a member of the staff of an indirect member ofCembureau did not in itself suffice to establish that that indirect memberparticipated in the Cembureau agreement (see paragraph 1441 above). Nevertheless, in the case of indirect members which participated in one or moreof the bilateral or multilateral arrangements referred to in the contested decision,such presence is a relevant factor in showing that their participation in such anindividual arrangement must be regarded as accession to the Cembureauagreement. 4083. It is not disputed that a member of staff of the following undertakings, all indirectmembers of Cembureau, attended the Head Delegates meeting of 14 January 1983at which the Cembureau agreement was concluded: Mr Van Hove of CBR, MrGruner of Dyckerhoff, Mr Poitrat of Ciments Français, Mr Schuhmacher ofHeidelberger, Mr Bertrán of Asland, Mr Toscano Jr of Cimpor and Sir John Milneof Blue Circle. That fact is also confirmed by the list of those attending themeeting of 14 January 1983 (contested decision, recital 19, paragraph 4; document33.126/11581). Nor is it disputed that those undertakings delegated a member oftheir staff to attend at least one of the two Head Delegates meetings at which theCembureau agreement was confirmed (contested decision, recital 19, paragraphs8 and 13; documents 33.126/11699, 11752 and 11753). 4084. It is also common ground that a member of the staff of Lafarge, Mr Collomb,attended the Head Delegates meetings of 19 March and 7 November 1984, atwhich the Cembureau agreement was confirmed (contested decision, recital 19,paragraphs 8 and 13; documents 33.126/11699, 11752 and 11753). 4085. Even though, as CBR, Ciments Français and Asland state, the persons referred toin paragraphs 4083 and 4084 above might have been present in their capacity asHead Delegates or as experts at the meetings at which the Cembureau agreementwas concluded and/or confirmed, it is none the less the case that, through thepresence of one of their senior executives at the meetings, the undertakingsconcerned necessarily became aware of the existence of the Cembureau agreementand of its content. 4086. In those circumstances, it must be concluded that those indirect members ofCembureau were aware that their participation in a bilateral or multilateralagreement or concerted practice having the same object as the Cembureauagreement constituted the implementation by them of the Cembureau agreement. 4087. Thus CBR's participation in the infringements referred to in Article 4(1) to (3)(a),Dyckerhoff's participation in the infringements referred to in Article 3(3)(a) andArticle 4(1) to (3)(a), Ciments Français's participation in the infringements referred to in Article 3(3)(a), Article 4(1) and (2) and Article 6, Heidelberger's participationin the infringements referred to in Article 3(3)(a) and Article 4(1), Lafarge'sparticipation in the infringements referred to in Article 3(1)(a) and (3)(a), Article4(1) to (3)(a) and Article 6, Asland's participation in the infringement referred toin Article 4(1), Cimpor's participation in the infringement referred to in Article3(2) and Blue Circle's participation in the infringements referred to in Article 4(1)to (3)(a) and Article 6 of the contested decision manifested their accession to theCembureau agreement. 4088. The Commission was therefore fully entitled to find in the contested decision thatCBR, Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Asland, Cimpor andBlue Circle participated in the single infringement referred to in Article 1 of thecontested decision. The duration of their participation will be examined below. 2.3.2. Other links 4089. In the case of Unicem, the indirect members of Cembureau whose staff did notattend one of the Head Delegates meetings, and Buzzi, which is neither a directnor an indirect member of Cembureau, any connection between a bilateral ormultilateral agreement or concerted practice on non-transhipment to home marketsin which they participated and the Cembureau agreement must be established onthe basis of other evidence. Since it has already been possible to conclude fromthe foregoing analysis that the finding of infringement made in Article 1 of thecontested decision cannot be upheld as against ENCI, Cedest, Nordcement, Alsen-Breitenburg, Rugby, Castle, Heracles and Titan, the other links on which theCommission relied in the contested decision are relevant only as against thefollowing nine undertakings: Unicem (a direct member of Cembureau), Vicat,Halkis, Holderbank, SECIL, Uniland, Hornos Ibéricos, Valenciana (indirectmembers of Cembureau) and Buzzi (neither a direct nor indirect member ofCembureau). 4090. As regards the bilateral and multilateral agreements and practices having the sameobject as the Cembureau agreement, the Court points out that, according to theCommission, the fact that the undertakings concerned, with the exception ofUnicem and Buzzi, are indirect members of Cembureau and the fact that instancesof bilateral friction were discussed at the Head Delegates meetings lead to theconclusion that the agreements and practices were measures implementing theCembureau agreement. As regards the infringements referred to in Articles 4 and6 of the contested decision, the Commission also refers to the institutional linkbetween Cembureau and the ETF and between Cembureau and the EPC. 4091. As regards the discussions of instances of bilateral friction, the Court finds that onlyone of these instances can be linked with a bilateral or multilateral agreement orpractice referred to in the contested decision, namely the Franco-German agreements and concerted practices (contested decision, Article 3(3)). Accordingto the contested decision, 'exports from France to Germany were discussed at theHead Delegates meeting on 19 March 1984 (memorandum to the Chairman for themeeting of 19 March 1984; contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729). The other instances of bilateral friction referred to in thedocuments concerning the Head Delegates meetings, in particular thememorandum to the Chairman for the meeting of 19 March 1984 and the notes onthat meeting (contested decision, recital 19, paragraph 10; documents 33.126/11733to 11737) did not give rise to a bilateral or multilateral agreement or practice inrespect of which a finding of infringement was made in the contested decision. 4092. It follows that the fact that some instances of bilateral friction were discussed at theHead Delegates meeting does not prove that the nine undertakings referred toabove participated in the Cembureau agreement. It is apparent from the contesteddecision that none of those undertakings participated in the Franco-Germanagreements or concerted practices. 4093. Furthermore, the Commission correctly observes in the contested decision (recital46, paragraph 2, fifth and sixth subparagraphs) that the Cembureau agreementmakes provision, where necessary, for bilateral or multilateral discussions betweenthe parties directly concerned, so that only cement transfers between memberswhich were 'hot spots for which no solution had been found locally were discussedat the Head Delegates meetings (see draft introductory statement by the Chairmanfor the meeting of 14 January 1983 (contested decision, recital 19, paragraph 5;documents 33.126/11583 to 11585) and notes on the meeting of 19 March 1984referred to in paragraph 4091 above). 4094. However, even though the lack of evidence that frictions underlying agreementsand concerted practices with the same object as the Cembureau agreement werediscussed at the Head Delegates meetings does not in itself mean that thoseagreements and practices were not measures implementing the Cembureauagreement, the fact that no reference was made at those meetings to frictionsrelating to the agreements and practices between France and Italy and Spain andPortugal, to the ETF or to the EPC clearly cannot constitute positive proof of alink between those agreements and practices and the Cembureau agreement. 4095. As regards the alleged institutional link between Cembureau, on the one hand, andthe ETF and the EPC, on the other, the Court finds that the Commission fails toexplain how such a link shows that the nine undertakings referred to above in thefinal sentence of paragraph 4089 were aware of the Cembureau agreement, acondition which must be satisfied before their participation in the infringementsreferred to in Articles 4 and 6 of the contested decision can be regarded as proofthat they acceded to that agreement. 4096. On the other hand, indirect membership of Cembureau is a relevant criterion ofconnection with the Cembureau agreement. As the Commission correctly observes,the real actors on the market are the undertakings, not the trade associations whichare the direct members of Cembureau (contested decision, recital 44, paragraph5). Those associations must therefore be deemed to have informed their membersof the conclusion and confirmation of the Cembureau agreement following theHead Delegates meetings of 14 January 1983, 19 March and 7 November 1984. At the meeting of 14 January 1983, moreover, the Chairman of Cembureauexpressly invited the Head Delegates present to 'spread words of wisdom around[them] (draft introductory statement by the Chairman for the Head Delegatesmeeting of 14 January 1983 (contested decision, recital 19, paragraph 5; documents 33.126/11583 to 11585)). 4097. Furthermore, on the cement market any action on one market may have an impacton the most distant markets, as indicated in the passage from the Zurich/Célignydocument (contested decision, recital 25, paragraph 3; documents 33.126/18772 to18779; see paragraph 2539 above), which states, on the subject of Greek exportsto the United Kingdom and Italy: 'Clearly the current situation constitutes a threatto the whole of Europe and not only to the countries under immediate attack. Asthe success of the rule of non-transhipment to home markets adopted andconfirmed at the Head Delegates meetings of 14 January 1983 and 19 March and7 November 1984 depended on its general implementation, the nationalassociations which were the direct members of Cembureau must have informedtheir members of the existence and subject-matter of the Cembureau agreement. 4098. It follows that all the indirect members of Cembureau must have been aware of theexistence and subject-matter of that agreement. Even though in the present casethe fact that the indirect members of Cembureau were represented at the HeadDelegates meetings cannot in itself be used as a criterion for the imputation ofliability for the infringement referred to in Article 1 of the contested decision (seeparagraphs 563 and 564 above), indirect membership of Cembureau none the lessshows that the participation of an undertaking in a bilateral or multilateralagreement having the same object as the Cembureau agreement constitutedimplementation of the Cembureau agreement and thus implied accession to thatagreement. 4099. Among the nine applicants referred to in the final sentence of paragraph 4089above are the following indirect members of Cembureau: Vicat, Valenciana,Uniland, SECIL, Holderbank, Hornos Ibéricos and Halkis. When thoseundertakings participated in a bilateral or multilateral agreement having the sameobject as the Cembureau agreement they were necessarily aware that in doing sothey were taking part in the pan-European agreement which had been concludedand confirmed at the Head Delegates meetings of 14 January 1983 and 19 Marchand 7 November 1984. 4100. Accordingly, Vicat's participation in the infringement referred to in Article 3(1)(c),SECIL's participation in the infringement referred to in Article 3(2), Uniland's andHolderbank's participation in the infringements referred to in Article 4(1) to (3)(a),and the participation of Valenciana, Hornos Ibéricos and Halkis in the infringementreferred to in Article 6 of the contested decision manifested their accession to theCembureau agreement. 4101. The Commission was therefore fully entitled to find in the contested decision thatVicat, Valenciana, Uniland, SECIL, Holderbank, Hornos Ibéricos and Halkisparticipated in the single infringement referred to in Article 1 of the contesteddecision. The duration of their participation in the infringement will be consideredbelow. 2.3.3. The particular case of Unicem and Buzzi 4102. It cannot be held that Unicem was represented at the Head Delegates meetings atwhich the Cembureau agreement was concluded and confirmed (see paragraphs1404 to 1416 above). 4103. The Court has already held that the Commission has proved that Unicemparticipated in the following infringements within the framework of the ETF:  the setting-up of the ETF (contested decision, Article 4(1); see paragraphs2682 and 2683 above);  concerted practices designed to withdraw Calcestruzzi as a customer fromthe Greek producers, and from Titan in particular (contested decision,Article 4(3)(a); see paragraphs 3252 and 3253 above);  an agreement having as its aim the prevention of imports of Greek cementby Calcestruzzi (contested decision, Article 4(3)(b); see paragraph 3396above). 4104. For reasons analogous to those set out in paragraphs 4096 to 4098 above inrelation to the indirect members of Cembureau, Unicem, as a direct member ofCembureau, was necessarily aware that by participating in the various activitiesreferred to in Article 4(1) and (3)(a) and (b), the object of which was identical tothat of the Cembureau agreement (see paragraphs 4050 to 4052 above) it wasimplementing that agreement. 4105. It should further be pointed out that, in the course of the infringement referred toin Article 4(1) of the contested decision, Unicem had direct contacts withrepresentatives of Blue Circle, Oficemen and Lafarge, which either directlyparticipated in or delegated a member of their staff to participate in the Head Delegates meetings at which the Cembureau agreement was concluded and/orconfirmed. Unicem participated with Mr Marichal of Lafarge, Mr Andia ofOficemen, and Mr Shepherd of Blue Circle, in the subgroup 'Exchange ofdefensive experiences set up at the Head Delegates meeting of 9 September 1986(minutes of the meeting of 9 September 1986 (contested decision, recital 25,paragraph 22; documents 33.126/18849 to 18862) and Lafarge document of 25March 1987 (contested decision, recital 25, paragraph 47; documents 33.126/4858to 4861)). Similarly, as regards the infringement referred to in Article 4(3)(b), itmust be pointed out that Cementir and Italcementi, the other two parties to theagreement which aimed to prevent imports of Greek cement by Calcestruzzi, aredirect members of Cembureau and were represented at the meetings at which theCembureau agreement was concluded and/or confirmed. 4106. As the Commission correctly observes, Unicem's ignorance of the Cembureauagreement is also irreconcilable with the following passage from the telex sent toTitan by Italcementi on 13 May 1987 (contested decision, recital 27, paragraph 8;document 33.126/19204): 'With reference to the contract between Titan andCalcestruzzi related to cement supplies in Italy and also to the proposed meetingrequested by M/S. Calcestruzzi itself to take place in Luxembourg on May 24, 1987,I wish to inform you that we, the cement Manufacturers, will clearly take part [in]said meeting since we are the parties involved at top level. Therefore, MessrsPesenti, Testore and Carella (in charge of Italcementi, Unicem and Cementirrespectively) will gladly be available for the meeting after the General Assembly ofCembureau, with the aim to find a solution to the problem, object of ourdiscussions, with the same spirit that for many years has [bound] the cementindustries of various European countries. 4107. It follows that a link between the measures taken by Unicem within the frameworkof the ETF and the Cembureau agreement is established. The Commission wastherefore entitled to find in the contested decision that Unicem participated in thesingle infringement referred to in Article 1 of the contested decision. The durationof its participation in that infringement will be considered below. 4108. Buzzi, which is neither a direct nor an indirect member of Cembureau, participatedin two infringements the object of which was identical to that of the Cembureauagreement: the concerted practice with Lafarge referred to in Article 3(1)(a) of thecontested decision (see paragraphs 1868 and 4036 above) and the concertedpractice with Vicat referred to in Article 3(1)(c) of the contested decision (seeparagraphs 1959 and 4039 above). 4109. In this case, however, the Court must ascertain whether Buzzi knew, or ought tohave known, when it participated in those Franco-Italian concerted practices thatit was taking part in the pan-European agreement concluded and confirmed at theHead Delegates meetings on 14 January 1983 and 19 March and 7 November 1984. As the Commission also acknowledged at the hearing in Case T-51/95, identity of object between the bilateral or multilateral agreements and concerted practices andthe Cembureau agreement does not in itself suffice to show such accession (seealso paragraph 4060 above). Only if Buzzi's knowledge of the existence of theCembureau agreement was sufficiently firm could its participation in the Franco-Italian concerted practices concerned constitute the expression of its accession tothat agreement. 4110. The Court points out that in the contested decision the Commission relies on anumber of factors to show that the undertakings which participated in a bilateralor multilateral agreement were aware of the Cembureau agreement (seeparagraphs 4069 to 4073 above). However, the Commission does not invoke anyof those factors in Buzzi's case (contested decision, recitals 20 and 48). 4111. In order to demonstrate that Buzzi was aware of the Cembureau agreement theCommission refers solely to the fact that it had contacts within the framework ofthe Franco-Italian concerted practices with certain parties to the Cembureauagreement (contested decision, recital 48, paragraph 2). The Commission furtherstates: 'What is important is the objective [of the Franco-Italian concerted practicesin which Buzzi participated], which coincides with that of the general agreement(contested decision, recital 48, paragraph 2). 4112. As the Court has already pointed out, however, the fact that objectives coincide isnot sufficient to establish that an undertaking participated in the Cembureauagreement. Furthermore, none of the documents on which the Commission reliedto demonstrate the identical objects of the Franco-Italian concerted practices andthe Cembureau agreement (see paragraphs 4033 to 4042 above) contains anyevidence that Buzzi was aware of the Cembureau agreement. In the absence ofsuch evidence, the fact that Buzzi had contacts with certain undertakings whoseparticipation in the Cembureau agreement is established is not sufficient todemonstrate that it was aware of that agreement. 4113. It follows that although Buzzi's participation in the bilateral concerted practicesreferred to in Article 3(1)(a), (b) and (c) has been established (see paragraphs1819 to 2035 above), the Commission has not shown that its participationconstituted accession to the Cembureau agreement, a pan-European agreementdistinguished by its particular gravity (contested decision, recitals 48 and 65,paragraph 5). Accordingly, Article 1 of the contested decision must be annulledin so far as it relates to Buzzi. 2.4. Conclusions 4114. It follows from all the foregoing that the Commission has established that CBR,Cembureau, FIC, VNC, Ciments Luxembourgeois, Dyckerhoff, SFIC, Vicat,Ciments Français, Heidelberger, Lafarge, Aalborg, BDZ, Unicem, Valenciana, BCA, Asland, Uniland, Oficemen, Irish Cement, Cimpor, SECIL, ATIC,Italcementi, Holderbank, Hornos Ibéricos, Aker, EUROC, Cementir, Blue Circle,AGCI and Halkis participated in the Cembureau agreement. By participating, asthe case may be, in the conduct referred to in Article 2, Article 3(1)(a) and (c), (2)and (3), Article 4(1) to (3) and Article 6 of the contested decision thoseundertakings and associations implemented the Cembureau agreement. TheCommission was therefore fully entitled to regard the bilateral and multilateralagreements and concerted practices as constituent elements of the Cembureauagreement and to classify that agreement in the contested decision as a singleagreement (recital 46). 3. General arguments questioning the use of the concept of a 'singleagreement 4115. First, FIC, SFIC, Vicat, Ciments Français, Lafarge, Unicem, Uniland, Oficemen,Cimpor, SECIL, Hornos Ibéricos and Blue Circle claim that the Commission usedcircular reasoning to demonstrate the existence of the single Cembureauagreement. Certain types of conduct which were allegedly innocent or only of alocal dimension were described by it as anti-competitive on the ground that theywere connected with a hypothetical single agreement; at the same time theCommission relied on that conduct to prove the existence of the Cembureauagreement. 4116. That argument must be rejected. The Commission did not infer the existence ofthe Cembureau agreement from the existence of the bilateral or multilateralarrangements referred to in Articles 2 to 6 of the contested decision but did sofrom the specific documentary evidence referred to in recitals 18, 19 and 45 of thecontested decision (see paragraphs 862 to 1095 above), which show that at theHead Delegates meetings of 14 January 1983 and 19 March and 7 November 1984a concurrence of wills emerged concerning the principle of non-transhipment tohome markets and the regulation of sales from one country to another. In thecontested decision, proof of the existence of the Cembureau agreement does nottherefore in any way depend on the existence of the measures implementing theCembureau agreement. Similarly, the Commission relied each time on documentsto establish that the conduct described in Articles 2, 3 and 4(1) to (3) of thecontested decision was unlawful. As regards the infringement referred to in Article6 of the contested decision, the Commission's reasoning is circular only in so far asit infers the unlawful nature of the EPC's activities from the fact that all themembers of the EPC are indirect members of Cembureau and therefore requiredto comply with the rule of non-transhipment to home markets (see paragraph 3879above). However, the other evidence adduced by the Commission supports itsconclusion that the EPC's activities infringed the provisions of Article 85(1) of theTreaty, since they were designed to 'prevent incursions by competitors onrespective national markets in the Community (see paragraphs 3882 to 3933 above). It follows that in the contested decision proof of the unlawful nature of themeasures referred to in Articles 2, 3, 4(1) to (3) and 6 of the contested decision isnot based on a theoretical connection with the Cembureau agreement but ratheron specific documentary evidence. 4117. Second, Vicat, Heidelberger, Italcementi and Blue Circle claim that in havingrecourse to the single agreement theory the Commission reduced and even reversedthe burden of proof by dispensing with the need to establish the existence ofunlawful conduct on the part of each addressee of the contested decision. TheCommission presumed that all the conduct of the European cement producers hadbeen adopted in application of the Cembureau agreement, thus formulating apresumption of guilt. Blue Circle further observes that it is apparent from variouspassages in the contested decision that the Commission considered that it wasunder no obligation to prove the various infringements but that it was for thedefendant undertakings to show that the allegations in the SO were untrue. 4118. Those arguments must be rejected. The various infringements complained of in theSO and upheld in the contested decision, and the participation therein of thevarious applicants concerned, were established not on the basis of a presumptionof guilt but on the basis of specific documentary evidence. 4119. Nor does the fact that in the contested decision the Commission considers thatBlue Circle's arguments and those of the other addressees of the contested decisiondo not invalidate the findings which it had made in the SO on the basis ofdocumentary evidence in any way show that it reversed the burden of proof. 4120. Third, Heidelberger, Uniland and Oficemen question the classification as a singleagreement of the measures adopted within the framework of Cembureau, since theoperative part of the contested decision reveals that the participants in the variousinfringements were not at all identical. They maintain that certain infringementsare attributed to Cembureau and its members (contested decision, Article 2(1) and(2)), others to some direct members and some indirect members of Cembureau(contested decision, Article 3(2) and (3) and Article 4(1) to (3)), and still others toindirect members of Cembureau (contested decision, Article 3(1) and Article 6) orto undertakings not affiliated to Cembureau (the case of Buzzi, contested decision,Article 3(1)). 4121. Aker and EUROC observe that it has not been established in relation to any of thepresumed bilateral or multilateral infringements on individual markets that theundertakings concerned considered that they were applying a Cembureauagreement, that they penalised other undertakings if they failed to comply with thatagreement, that they threatened to bring cases of 'unfair competition beforeCembureau, that they ascribed their conduct to a Cembureau agreement or thatthey invoked that agreement. They further emphasise that in many cases theconduct concerned was seen only on local or regional markets. 4122. The Court points out that the Commission has established that the Cembureauagreement was concluded at the Head Delegates meeting of 14 January 1983, theobject of the agreement being non-transhipment to home markets and theregulation of sales from one country to another (see paragraphs 862 to 1095above). The success of that agreement depended on its being applied generally. Having regard to the interdependence of the various national markets, any actionon one market might spread to the most distant markets. For that reason theCembureau agreement provided, in the case of uncontrolled exports in Europe, for'multi- or bi-lateral discussions to be held to ensure observance of the 'rule of thegame (draft introductory statement by the Chairman for the Head Delegatesmeeting of 14 January 1983 (contested decision, recital 19, paragraph 5; documents 33.126/11583 to 11585)). Thus the application of the Cembureau agreement wasad hoc and local. 4123. Therefore, as the Commission maintains, the fact that various undertakings playeddifferent roles in the pursuit of a common objective does not mean that there wasno identity of participants (contested decision, recital 46, paragraph 2, thirdsubparagraph). Each party whose participation in the Cembureau agreement isestablished contributed, at its own level, to the pursuit of the common objective byparticipating in one or more of the implementing measures referred to in thecontested decision, aware that the other participants in the Cembureau agreementwould take similar measures when their national frontiers were threatened. Thusthe actions undertaken by various parties to the Cembureau agreement interactedto support the common object pursued, namely general observance of the rule ofnon-transhipment to home markets and the regulation of sales from one countryto another. 4124. The fact that none of the documents relating to the bilateral and multilateralagreements makes express reference to the Cembureau agreement is not of sucha nature as to call that assessment into question. In that regard, the Court pointsout that the Cembureau agreement is not a formal agreement but an informalconcurrence of wills on 'non-transhipment to home markets and the regulation ofsales from one country to another, i.e. market-sharing (contested decision, recital45, paragraph 9) (see paragraph 998 above). 4125. The arguments put forward by Heidelberger, Uniland, Oficemen, Aker andEUROC must therefore be rejected. 4126. Fourth, Heidelberger and Hornos Ibéricos submit that, unlike in the facts in thePolypropylene cases (see, for example, Hercules Chemicals v Commission, cited atparagraph 140 above, paragraph 263, and BASF v Commission, cited at paragraph1852 above, paragraph 244 et seq.), the alleged parties to the Cembureauagreement did not participate in a system of regular meetings. They consider thata single agreement requires at least the organisation of regular meetings or variouscontacts at which all the participants are generally or at least regularly present and the objectives of the arrangements and the procedures for implementing them areexamined. 4127. That argument must be rejected. The infringement constitutes a single agreementby virtue of the identical nature of the objective pursued by each participant in theCembureau agreement, not by virtue of the methods of implementing thatagreement. In that regard, the Court points out that the objective of theCembureau agreement was simple: the principle was 'everyone stays at home. Unlike the arrangement which formed the subject-matter of the Polypropylene cases,the objective of which was to increase prices on the market, it was not necessaryto hold regular meetings in order to implement the Cembureau agreement. Allthat was required to comply with that agreement was that each participant shouldnot become involved in unregulated cement exports to other European countriesand that 'multi- or bi-lateral discussions [be] held to ensure that the 'rule of thegame was observed (draft introductory statement of the Chairman for the HeadDelegates meeting of 14 January 1983 (contested decision, recital 19, paragraph 5;documents 33.126/11583 to 11585)). 4128. Fifth, Heidelberger, Unicem, BCA, Italcementi, Aker, EUROC, Cementir and BlueCircle maintain that as a result of the single agreement theory they were held tobe collectively responsible for all the matters established in the contested decision,including those in respect of which they were not specifically accused. TheCommission thus infringed the principle that liability for an infringement of Article85(1) of the Treaty is of a personal nature (Opinion of Judge Vesterdorf acting asAdvocate General in Rhône-Poulenc v Commission, cited at paragraph 1053 above,at II-953). 4129. However, the personal nature of liability for infringements of Article 85 of theTreaty does not prevent the Commission from classifying various forms of conductby a number of parties as a single infringement if, as in the present case, itestablished that those parties regarded their participation in that conduct as theircontribution to an overall plan linking the entire cement industry. The individualparticipation of the applicants concerned in the single Cembureau agreement hasbeen established by the Commission (see paragraph 4114 above). 4130. Sixth, Italcementi and Cementir criticise the Commission for having used theconcept of a single infringement to conclude that they participated in theinfringement referred to in Article 1 of the contested decision purely because theywere members of Cembureau. 4131. That argument is based on a misreading of the contested decision and must berejected. Proof of the participation of Italcementi and Cementir, both directmembers of Cembureau, in the single Cembureau agreement is based not only ontheir membership of Cembureau but also, and above all, on their participation in the Head Delegates meetings at which the Cembureau agreement was concludedand/or confirmed (see paragraphs 1302 and 1342 to 1353 above). 4132. Seventh, Blue Circle complains that the Commission established the existence ofa single Cembureau agreement by relying on the three documents identified inrecital 18 of the contested decision, namely the two Blue Circle internal memos,one dated 1 December 1983 (contested decision, recital 18, paragraph 2; documents33.126/11332 to 11334) and the other undated (contested decision, recital 18,paragraph 3; documents 33.126/11335 to 11337), and the statement of theChairman of Heracles (contested decision, recital 18, paragraph 5; documents 33.126/19875 to 19877). 4133. That argument must be rejected. In concluding that the various types of conducthad originated in a single agreement (contested decision, recital 46), theCommission relied on the fact that the conduct identified in Articles 2 to 6 of thecontested decision and the content of the Cembureau agreement, as disclosed inparticular by the three documents to which the applicant refers and by thedocuments referred to in recitals 19 and 45 of the contested decision, had identicalobjects, and also on the fact that the parties participated, with full knowledge of theCembureau agreement, in the conduct referred to in Articles 2 to 6 of thecontested decision. 4134. Eighth, Italcementi, Aker, EUROC, Cementir and Blue Circle claim that bydeciding to drop the national objections the Commission contradicted its single-infringement theory. 4135. The Court points out that the Commission never claimed in the SO that thenational objections referred to therein came within the single and continuousCembureau agreement (see paragraph 119 above). Only the 'arrangementsadopted within the framework of Cembureau and the bilateral and multilateralmeetings and contacts described in points 59 to 62 and 66 to 68 of theinternational chapters of the SO were deemed by the Commission to constitute asingle and continuous agreement (SO, point 59). Consequently, the Commissiondid not contradict itself by dropping the national objections at the end of theadministrative procedure while maintaining its theory based on the existence of asingle and continuous agreement. 4136. Ninth, Oficemen claims that the fact that the Commission relied on the criterionof identical participants to establish the link between a specific agreement and theCembureau agreement has the effect, owing to the large number of allegedparticipants in the Cembureau agreement, of linking with the Cembureauagreement virtually any agreement or concerted practice implemented by Europeancement producers. The same conclusion necessarily follows in regard to thecriterion of objective identity, owing to the Commission's wide definition of thecontent of the Cembureau agreement. 4137. That argument must be rejected. The Commission did not presume that the entirecement industry had acceded to the Cembureau agreement in order to establish alink between the various measures which implemented the Cembureau agreementand the agreement itself. It has showed that the 'implementing measures referredto in the contested decision, with the exception of the conduct referred to in Article3(1)(b), Article 4(4) and Article 5, had as their object non-transhipment to homemarkets and thus pursued the same aim as the Cembureau agreement. The veryobject of the Cembureau agreement and the measures implementing thatagreement is unequivocally clear from the documentary evidence referred to in thecontested decision. By participating in a measure having the same object as theCembureau agreement the various applicants demonstrated their accession to theCembureau agreement, an agreement of which they were aware. 4138. Tenth, and last, Aker and EUROC claim that the heterogeneous nature of theconditions of competition and the local dimension of the markets in the Communityare incompatible with the Commission's theory of the existence of a singleagreement on a European scale. 4139. That argument must be rejected. An economic analysis of the cement marketcannot hide the inescapable reality of the documentary evidence on which theCommission properly relied in concluding that the Cembureau agreement existed. Nor can it conceal the identical object of various 'implementing measures and theCembureau agreement, which enabled the Commission to classify that agreementas a single agreement linking all those which, like Aker and EUROC (seeparagraphs 4063 to 4065 above), had participated in those measures in fullknowledge of the Cembureau agreement. 4. Particular circumstances showing that the various bilateral and multilateralagreements and concerted practices were not measures implementing the singleCembureau agreement 4140. Some of the applicants claim that various circumstances relating to the bilateral ormultilateral agreements and concerted practices in which they participated are atvariance with the Commission's argument that those arrangements constitutedmeasures implementing the Cembureau agreement. 4141. Thus Lafarge claims that in not attributing to it the infringements relating to theexchanges of price information found in Article 2 of the contested decision, eventhough those infringements were supposed to have been designed to facilitate theimplementation of the Cembureau agreement to which it is said to have acceded,the Commission contradicts itself and shows that there is no link between thoseexchanges and the Cembureau agreement. 4142. That argument must be rejected. The exchanges of price information found inArticle 2(1) and (2) of the contested decision were alleged against Cembureau andall its direct members. Quite apart from the identity of object between the twoinfringements (see paragraph 4032 above), the link between the exchanges ofinformation and the Cembureau agreement is clear from the fact that Cembureauand its direct members participated in the exchanges of information with full'knowledge of the Cembureau agreement, since it was those very members  withthe exception of Unicem  which concluded and then confirmed the Cembureauagreement at the Head Delegates meetings referred to in recital 19 of thecontested decision. The conduct identified in Article 2 may therefore be regardedas measures implementing the Cembureau agreement by Cembureau and its directmembers, other than Unicem (see paragraphs 1695 to 1699 above). The fact thatthat conduct was not attributed to the indirect members of Cembureau  and inparticular not to Lafarge  which were accused of having acceded to theCembureau agreement is not of such a nature as to undermine that approach. 4143. Furthermore, Cembureau, FIC, SFIC, Lafarge, BCA, Oficemen, Cimpor, SECIL,ATIC, Aker, EUROC and Blue Circle claim that the periodical informationexchanges referred to in Article 2(2) of the contested decision cannot be regardedas a measure implementing the Cembureau agreement, since the contested decisionitself (recital 16, paragraph 8) states that those exchanges commenced in 1980. 4144. The Court points out, however, that the fact that the information exchangescommenced before the Cembureau agreement was adopted is not in any way ofsuch a nature as to invalidate the finding that those exchanges were designed tofacilitate the implementation of the Cembureau agreement following its conclusion(see paragraphs 1625 to 1647 above). 4145. As regards the infringements referred to in Article 3(1) of the contested decision,Vicat contends that the 'Franco-Italian relations were never referred to at theHead Delegates meetings as a 'hot spot. 4146. Similarly, as regards the infringement referred to in Article 3(2) of the contesteddecision, Cimpor, SECIL and Oficemen contend that the trade in cement betweenSpain and Portugal was never regarded at the Head Delegates meetings as a sourceof bilateral friction. Nor is it apparent from the documents in the file that theHispano-Portuguese cement trade was discussed within Cembureau or one of thecommittees or working groups referred to in the contested decision. 4147. However, as the Commission submits (contested decision, recital 46, paragraph 2,fifth and sixth subparagraphs), the fact that there is no evidence that certaininstances of bilateral or multilateral friction were discussed at the Head Delegatesmeetings at which the Cembureau agreement was concluded or confirmed does notmean that the bilateral or multilateral agreements and concerted practicesconcluded in response to such friction did not constitute measures implementing the Cembureau agreement. In that regard, it is apparent from the draftintroductory statement by the Chairman for the Head Delegates meeting of 14January 1983 (contested decision, recital 19, paragraph 5; documents 33.126/11583to 11585) that in the interest of 'modifying market developments it was essential,'each time it [was] necessary, that multi- or bi-lateral discussions [be] held, as andwhen the need [arose]. Therefore the mechanism of the Cembureau agreementprovided, where necessary, for bilateral or multilateral discussions between theparties directly concerned, not for discussion within Cembureau. Thus only cementtransfers between members described as 'hot spots for which no solution hadbeen found locally were discussed at the Head Delegates meetings. 4148. The argument must therefore be rejected. 4149. Oficemen further claims that the link between the Hispano-Portuguese agreementand the Cembureau agreement is based on pure speculation and circular reasoning. In substance, the Commission merely stated that the fact that the Hispano-Portuguese agreement was not discussed within Cembureau did not prove that itwas not linked with the Cembureau agreement, since that agreement assumed thatonly conflicts which had not been resolved through direct contacts were to bediscussed at Cembureau level (contested decision, recital 46, paragraph 2, fifth andsixth subparagraphs). However, the Commission inferred that feature of theCembureau agreement from the very fact that the Hispano-Portuguese agreementhad not been discussed within Cembureau. 4150. That argument, too, must be rejected. The link between the Hispano-Portugueseagreement and the Cembureau agreement is based on the finding that the partiesto the Hispano-Portuguese agreement, which were all aware of the Cembureauagreement, must have realised that in participating in that agreement, whichpursued the same objective as the Cembureau agreement, they were implementingthe joint plan adopted and confirmed at the Head Delegates meetings. 4151. Furthermore, the Commission did not base its conclusion that the Cembureauagreement did not necessarily require that 'each bilateral or multilateral situationshould have been discussed explicitly at the Cembureau meetings (contesteddecision, recital 46, paragraph 2, fifth subparagraph) on the finding that theHispano-Portuguese agreement had never been discussed at Cembureau level. That conclusion was based on various documentary extracts which showed that, inorder to modify market developments, priority had first and foremost been givento the bilateral or multilateral discussions and that only 'hot spots which could notbe resolved solely through direct contacts between the parties concerned were tobe discussed at Cembureau level (see contested decision, recital 46, paragraph 2,final subparagraph). 4152. As regards the infringement referred to in Article 3(3) of the contested decision,Dyckerhoff, SFIC, Lafarge, Oficemen, Aker, EUROC and Blue Circle contend that the Franco-German agreements and concerted practices, if established, could notbe regarded as being linked with the Cembureau agreement, since they wereimplemented before 1983. They therefore have no connection with the agreementconcluded at the meeting of 14 January 1983, as they predated that meeting. 4153. However, even though the Franco-German agreements and concerted practicespredated the Cembureau agreement, the link between them is apparent not onlyfrom the fact that they had the same object and all the undertakings andassociations whose participation in the infringements referred to in Article 3(3) isestablished had delegated a member of their staff to attend the Head Delegatesmeetings at which the Cembureau agreement had been concluded and/orconfirmed, but also from the documents relating to the Head Delegates meetingof 19 March 1984. Thus, in the statement for the President concerning thatmeeting (contested decision, recital 19, paragraph 9; documents 33.126/11728 and11729), the breach of the rule of non-transhipment to home markets at Franco-German level was described as a 'hot spot, which shows that the Franco-Germanagreements and practices were regarded by the Head Delegates themselves as aconstituent element of the Cembureau agreement. 4154. The parties to the Franco-German agreement were therefore aware that theirparticipation in the agreements and practices, in accordance with the 'rule of thegame adopted at the Head Delegates meeting of 14 January 1983, was thereafterseen by the other parties to the Cembureau agreement as a manifestation of theiraccession to that agreement. 4155. As regards the infringements referred to in Article 4(1) to (3) of the contesteddecision, Lafarge relies on the allegedly restricted object of the ETF  to meet thethreat of allegedly unlawfully subsidised exports from Greece  to dispute the linkbetween the ETF and its implementing measures, on the one hand, and theCembureau agreement, on the other, an agreement which pursued a widerobjective. 4156. The Court points out in that regard that, although the ETF was principally set upto deal with the Greek problem, it had a wider purpose than that attributed to itby Lafarge, since its purpose was to 'evaluate measures to eliminate imports toWestern Europe (minutes of the ETF meeting of 19 August 1986 in Geneva(contested decision, recital 25, paragraph 15; annex 15 to Aker's and EUROC'sreply to the SO)) or to 'examine possible dissuasive and persuasive measuresto counter the arrival of cheap cement on European markets (summary ofstatements and conclusions of the meetings of the Head Delegates andrepresentatives of the Task Force at Baden-Baden on 9 September 1986 (contesteddecision, recital 25, paragraph 22; documents 33.126/11849 to 18862)). The ETFand the Cembureau agreement therefore had perfectly identical objects, also interms of their geographical scope. 4157. Ciments Français, Heidelberger, Lafarge, Irish Cement, Italcementi, Aker andEUROC further dispute the relevance of the various elements which theCommission puts forward in recital 24, paragraph 3, of the contested decision inorder to establish the link between the ETF and Cembureau. They claim thatthere was no institutional link between Cembureau and the ETF. 4158. Ciments Français claims, in reliance on the judgment in AITEC v Commission, citedat paragraph 2554 above (paragraphs 141 and 142), that the Commission could not,without infringing the principle of proportionality, take the view that the singleagreement on the ETF was a serious application of the Cembureau principle,without first carrying out an examination of the foreseeable effects on competitionand inter-State trade of the subsidies granted to Greek cement producers. 4159. However, since it has been established that the infringements referred to in Article4(1) to (3) of the contested decision and the Cembureau agreement pursued thesame object and that the participants in those infringements were aware that theywere implementing the Cembureau agreement, it is irrelevant, for the purposes ofdetermining a link between the ETF agreement and the Cembureau agreement,whether the ETF maintained links of affiliation and institutional links withCembureau, as maintained by the Commission on the basis of the various factorswhich it puts forward in recital 24, paragraph 3, of the contested decision. 4160. Furthermore, irrespective of whether the State aid granted to the Greek industrydistorted competition and affected trade between Member States, the Commissionwas entitled to conclude that, in view of the number of participating undertakingsand associations and the perfect identity between the ETF agreement and theCembureau agreement, the private measures taken in the context of the singleagreement concerning the ETF were a serious application of the Cembureauagreement. 4161. Last, Lafarge and Blue Circle claim that the concerted practice referred to inArticle 6 of the contested decision, if established, could not be regarded as beinglinked with the Cembureau agreement, since that concerted practice wasimplemented well before 1983. Because it predated the agreement concluded atthe meeting of 14 January 1983, the cooperation within the EPC therefore had noconnection with that agreement. 4162. That argument has become devoid of purpose, since Article 6 of the contesteddecision must be annulled in so far as it finds an infringement of Article 85(1) ofthe Treaty before 18 November 1983 (see paragraph 3980 above). It has beenestablished that from that date, certain members of the EPC sought, through theircooperation within that committee, to achieve the objective of the Cembureauagreement. 4163. Lafarge further observes that none of the documents relating to the EPC makesany reference to the content of the Cembureau agreement. 4164. The Court points out that it has been shown that certain members of the EPCsought, within the framework of that export committee, to reinforce the rule onnon-transhipment to home markets by channelling production surpluses to thirdcountries and that they thus sought to implement the Cembureau agreement (seeparagraphs 4055, 4056, 4086, 4087 and 4100 above). The fact that none of thedocuments relating to the EPC makes express reference to the Cembureauagreement, which is not a formal agreement (see paragraph 4124 above), is not ofsuch a nature as to call that assessment in question. 5. Particular circumstances showing that some applicants had distanced themselvesfrom the single Cembureau agreement or that their participation in that agreementdid not constitute an infringement of Article 85(1) of the Treaty 4165. CBR, Unicem and Blue Circle claim that they did not participate in the bilateralcontacts referred to in Article 3 of the contested decision that were discussed at theHead Delegates meetings noted by the Commission. Unicem claims that thestatement made at the Head Delegates meeting of 19 March 1984 to the effect that'pressure due to inter-member trade had slackened considerably through improvedbilateral contacts (notes on the meeting, dated 2 April 1984; contested decision,recital 19, paragraph 10; documents 33.126/11733 to 11737) should constituteexculpatory evidence in its case, since it never participated in bilateral contacts ofthat type. 4166. Those arguments are irrelevant, since the Commission was entitled to find that theundertakings concerned participated in the infringement referred to in Article 1 ofthe contested decision through their participation in constituent elements of thesingle agreement relating to the ETF (see paragraphs 4087 and 4104 above). 4167. Next, CBR claims that it distanced itself from the Cembureau agreement throughthe intermediary of its national association, FIC. It refers, first, to the minutes ofthe meeting of FIC's board of directors of 1 September 1987 (annex 3 to theapplication), from which it takes two passages. The first passage (pages 2 and 3of the minutes), which concerns the 'European cement industry strategic planningseminar, Aldermaston, 2 and 3 October 1987, states that 'it is not Cembureau'stask to draw up or recommend policies for the European cement industry or tomonitor its economy. The second (p. 6 of the minutes), which is on the topic'Structure of the European cement industry and foreseeable capacity 1990-2000,states, in relation to a questionnaire submitted by Cembureau on productioncapacities: 'It would have the effect of collating the confidential strategic data ofthe member companies in order to draw up a European cement strategy, whichCembureau must not do. The Board [of FIC] therefore sees no point in responding. Mr Latteur is requested to prepare a draft reply to Cembureau,summarising the main criticisms made at the meeting of that inappropriate initiativeand declining to respond on behalf of Belgian cement manufacturers. 4168. CBR then refers to what was said by the Belgian Head Delegate, Mr Van Hove,who stated at the Head Delegates meeting of 19 March 1984, in relation to'random exports, that it was pointless to continue the discussion withinCembureau (notes on the meeting, dated 2 April 1984; contested decision, recital19, paragraph 10; documents 33.126/11733 to 11737). That observation, accordingto CBR, reflected the position adopted by CLC (see paragraph 799 above) on 17March 1983 regarding intra-Community trade, according to which 'it [was] notpermitted to adopted a common approach at the level of the CLC, or evenbetween cement industries and/or companies (annex 7 to the application; p. 5 ofthe minutes of the CLC meeting of 17 March 1983), a position which had itselfbeen discussed and approved in an earlier discussion held at the FIC (see annexes8, 9 and 9b to the application). 4169. CBR maintains that what Mr Van Hove said at the Head Delegates meetingsreflected a permanent desire to support any action which Cembureau might takewithin the limits laid down by Article 85 of the Treaty. 4170. The Court points out, however, that CBR, as an indirect member of Cembureau,was aware of the existence and content of the Cembureau agreement (seeparagraph 4098 above). Furthermore, a member of CBR's staff, Mr Van Hove,attended the three Head Delegates meetings at which the Cembureau agreementwas concluded and confirmed (contested decision, recital 19, paragraph 4,documents 33.126/11581; contested decision, recital 19, paragraph 8, document33.126/11699; contested decision, recital 19, paragraph 13, documents 33.126/11752and 11753)). 4171. In the contested decision the Commission was entitled to rely on CBR'sparticipation in infringements within the framework of the ETF in order toestablish its accession to the Cembureau agreement. When CBR participated inthe agreements and concerted practices referred to in Article 4(1) to (3)(a) of thecontested decision, which had the same object as the Cembureau agreement, it wasnecessarily aware that it was implementing the joint plan adopted and confirmedat the Head Delegates meetings and that it would in future be seen by the otherparticipants to the Cembureau agreement as adhering to that agreement. 4172. None of the evidence put forward by CBR is of such a nature as to vitiate thatfinding. The documents on which it relies make no reference to a position adoptedby CBR. They cannot therefore be interpreted as showing that CBR openlydistanced itself from the content of the Cembureau agreement to which it adhered. 4173. For the sake of completeness, the Court observes that the most that can beinferred from the extract from the minutes of the CLC meeting of 17 March 1983is that the members of the CLC felt concerned by cement imports and exportsbetween the Member States of the Community. Far from showing that CLCrenounced the principle of non-transhipment to home markets which had beenadopted two months earlier at the Head Delegates meeting of 14 January 1983,those documents clearly show that the members of CLC continued to discusspossible ways of resolving that problem. Furthermore, the arguments which CBRderives from the extracts from the minutes of the meeting of the Board ofDirectors of FIC of 1 September 1987 and from what the Belgian Head Delegatehad to say at the Head Delegates meeting on 19 March 1984 must be rejected forthe reasons set out in paragraphs 1366 to 1368 above. 4174. Dyckerhoff, Uniland, Holderbank, Hornos Ibéricos and Halkis maintain that theyhad no interest in participating in an agreement such as the Cembureau agreement. 4175. However, those applicants must have been aware of the Cembureau agreement,since they are indirect members of that association (see paragraph 4098 above). Furthermore, a member of the staff of Dyckerhoff, Mr Gruner, and of Holderbank,Mr Schrafl, attended the Head Delegates meeting of 14 January 1983 at which theCembureau agreement was concluded (contested decision, recital 19, paragraph 4;document 33.126/11581). Accordingly, when the applicants concerned participatedin bilateral and multilateral agreements and concerted practices having the sameobject as the Cembureau agreement (Dyckerhoff participated in the agreementsand concerted practices referred to in Article 3(3)(a) and Article 4(1) to (3)(a);Uniland and Holderbank participated in the agreements and concerted practicesreferred to in Article 4(1) to (3)(a)), they were necessarily aware that they wereimplementing the joint plan adopted and confirmed at the Head Delegatesmeetings and that they would in future be seen by the other participants to theCembureau agreement as adhering to that agreement. Accordingly, it cannot availthem to allege that they had no interest in participating in the Cembureauagreement. 4176. Vicat disputes the existence of a link between the concerted practice in respect ofwhich it and Buzzi are criticised and the Cembureau agreement. It maintains thatthe exchange of information on tariffs noted in recital 20, paragraph 5, of thecontested decision was effected on each occasion at the initiative of Buzzi, whichwas neither a direct nor an indirect member of Cembureau, and whose initiativescannot therefore be regarded as implementing instructions from Cembureaudesigned to ensure compliance with the rule on non-transhipment to home markets. 4177. Vicat further maintains that, contrary to what should have been the result ofapplication of the Cembureau agreement, Buzzi's sales in Southern Franceincreased between 1980 and 1987 and that Buzzi's prices in that geographical areawere always significantly lower than Vicat's. Last, it points out that at the end of 1987 it bought out Buzzi's largest French customer, which would not have beennecessary if Buzzi and it had actually set up a concerted practice designed toensure compliance with the Cembureau agreement. 4178. Those arguments must be rejected. 4179. As an indirect member of Cembureau, Vicat was necessarily aware of the contentand existence of the Cembureau agreement (see paragraph 4098 above). Furthermore, it follows from a Vicat memorandum of 22 July 1982 (contesteddecision, recital 22, paragraph 1; documents 33.126/6055 to 6057) on the Franco-German agreements and concerted practices that Vicat was aware that the marketswere interdependent. It considered that Cedest's activity in Germany was 'spoilingthe climate which [could] only result in conflict, a conflict which [was] liable tospread. Consequently, when it participated in the concerted practice referred toin Article 3(1)(c), which had the same object as the Cembureau agreement, it wasnecessarily aware that it was implementing the joint plan adopted and confirmedat the Head Delegates meetings and that it would in future be seen by the otherparticipants in the Cembureau agreement as adhering to that agreement. 4180. Vicat considers, finally, that in taking the fact that the Chairman of SFIC waspresent at Head Delegates meetings to mean that SFIC participated in theCembureau agreement the Commission contradicts the approach it adopted inpoints 143 and 207 of Decision 89/515/EEC of 2 August 1989 relating to aproceeding under Article 85 of the EEC Treaty (IV/31.553  Welded steel mesh)(OJ 1989 L 260, p. 1). 4181. The Court finds that by that argument Vicat is disputing SFIC's liability for theCembureau agreement, not its own. It follows that its argument is of no relevanceto Case T-37/95 Vicat v Commission and that it must be rejected. 4182. Ciments Français claims that it was never aware of any Cembureau agreement. Even if it had been informed that such an agreement existed it would not havebeen able to express its disagreement with it, since it was not a member ofCembureau. It observes that by exonerating the Spanish undertakings on theground that only their association was involved in the Hispano-Portugueseagreement referred to in Article 3(2) of the contested decision and by alsoexonerating 18 Spanish and German undertakings, even though they were membersof their national associations, which were still held liable in relation to theCembureau agreement, the Commission itself acknowledged that it could notdemand proof that an undertaking disagreed with acts carried out by an association. 4183. The Court points out, however, that Ciments Français was necessarily aware of theCembureau agreement, since it was an indirect member of that association (seeparagraph 4098 above). Furthermore, as the applicant acknowledged at thehearing, a member of its staff, Mr Poitrat, attended the Head Delegates meeting of 14 January 1983 at which the Cembureau agreement was concluded (contesteddecision, recital 19, paragraph 4; document 33.126/11581). Consequently, when itparticipated in bilateral and multilateral agreements and concerted practices havingthe same object as the Cembureau agreement, namely those referred to in Article3(3)(a), Article 4(1) and (2) and Article 6 of the contested decision, it wasnecessarily aware that it was implementing the joint plan adopted and confirmedat the Head Delegates meetings and that, since it failed to show that it distanceditself from that plan, it would in future be seen by the other participants in theCembureau agreement as adhering to that agreement. 4184. The Commission did not ask Ciments Français to prove that it had distanced itselffrom the acts of the national association of which it was a member. On thecontrary, it established that Ciments Français acceded to the Cembureau agreementby participating in a number of measures which implemented that agreement. Since Ciments Français did nothing to distance itself from the content of theCembureau agreement, the Commission was entitled to find that it participated inthe infringement referred to in Article 1 of the contested decision. 4185. Last, Ciments Français cannot rely on the discriminatory treatment which it claimsto have suffered in comparison with various German and Spanish undertakings, asits participation in the infringement referred to in Article 1 of the contesteddecision was properly established (see, in that regard, Woodpulp II, cited atparagraph 106 above, paragraph 146). 4186. Lafarge claims that the implementing measures in which it took part have noconnection whatsoever with the alleged Cembureau agreement. In the absence ofany evidence that it acceded to the general instructions issued by the Cembureauorgans, it considers that the Commission cannot find that it participated in an'agreement not to tranship to home markets. 4187. That argument must be rejected. Lafarge must have been aware of the Cembureauagreement, since it was an indirect member of that association (see paragraph 4098above). Furthermore, a member of Lafarge's staff, Mr Collomb, attended theHead Delegates meetings of 19 March and 7 November 1984 at which theCembureau agreement was confirmed (contested decision, recital 19, paragraphs8 and 13; documents 33.126/11699, 11752 and 11753). Consequently, when Lafargeparticipated in bilateral and multilateral agreements and practices having the sameobject as the Cembureau agreement, namely the agreements and concertedpractices referred to in Article 3(1)(a) and (3)(a), Article 4(1) to (3)(a) and Article6, it was necessarily aware that it was implementing the joint plan adopted andconfirmed at the Head Delegates meetings, which the Commission correctlyclassified as an agreement within the meaning of Article 85(1) of the Treaty (seeparagraphs 1071 to 1078 above) and that it would in future be seen by the otherparticipants in the Cembureau agreement as adhering to that agreement. 4188. Heidelberger claims that the fact that no member of its staff was present at theHead Delegates meeting of 19 March 1984 shows that it did not participate in theCembureau agreement. It further maintains that four documents clearly show thatit has always endeavoured to export as much as possible and that it has nevereither observed or applied any agreement not to tranship to home markets. Thosefour documents are therefore at variance with its alleged participation in theCembureau agreement. 4189. Heidelberger refers in that regard to:  the memorandum to the Chairman of Cembureau for the Head Delegatesmeeting of 19 March 1984 (contested decision, recital 19, paragraph 9;documents 33.126/11728 and 11729), in particular the extract which statesthat the 'hot spots include 'exports from Germany to the United Kingdomand Ireland and 'exports from France to Germany;  the notes on the Head Delegates meeting of 19 March 1984, in particularthe passage on 'random additional exports [from Germany] to theNetherlands and Belgium (contested decision, recital 19, paragraph 10;documents 33.126/11733 to 11737);  the undated Blue Circle internal memorandum entitled 'Import threat(contested decision, recital 18, paragraph 3; documents 33.126/11335 to11337), more specifically the extract referring to imports into the UnitedKingdom from West Germany;  the statement by Mr Schuhmacher recorded in the handwritten note relatingto the Head Delegates meeting of 7 November 1984 (contested decision,recital 19, paragraph 15; document 33.126/11765), to the effect that '[itdoes] not [make] sense to get into contact with companies which could enterinto [the] market. 4190. Heidelberger further observes that it was not mentioned in the documentsestablishing the existence of the Cembureau agreement and considers that it cannottherefore be accused of having participated in that agreement. 4191. Those arguments must be rejected. Heidelberger must have been aware of theCembureau agreement, since it was an indirect member of that association (seeparagraph 4098 above). Furthermore, its Chairman, Mr Schuhmacher, attendedthe Head Delegates meetings of 14 January 1983 and 7 November 1984 at whichthe Cembureau agreement was concluded and confirmed (contested decision,recital 19, paragraphs 4 and 13; documents 33.126/11581, 11752 and 11753). Consequently, by participating in bilateral and multilateral agreements andconcerted practices having the same object as the Cembureau agreement, namelythose referred to in Article 3(3)(a) and Article 4((1), it must have been aware that it was implementing the joint plan adopted and confirmed at the Head Delegatesmeetings and that it would in future be seen by the other participants in theCembureau agreement as adhering to that agreement. 4192. None of the evidence put forward in paragraphs 4188 to 4190 above is of such anature as to invalidate that finding. There is nothing in the documents describingintra-Community imports from Germany to show that Heidelberger breached theCembureau agreement by making intra-Community exports. Furthermore, the factthat Mr Schuhmacher considered that it made no sense to get into contact withcompanies which might penetrate the market does not prove that he did notsubscribe to the agreement not to tranship to home markets which had beenconcluded in his presence at the Head Delegates meeting of 14 January 1983, butproves rather that he may have disapproved of bilateral contacts as a means ofseeking to ensure compliance with that agreement. 4193. Unicem maintains that the fact that an agreement not to tranship to domesticmarkets might have been in its interest because the closing of the Italian marketmight have been advantageous to it does not mean that it was involved in theCembureau agreement. The Commission's approach, whereby it seeks to createa kind of strict liability of all members of an association for measures adopted bythe organs of that association, without requiring any additional evidence of guilt,is contrary to the principles laid down in case-law (judgment in Case 45/85 Verbandder Sachversicherer v Commission [1987] ECR 405, paragraph 32; Opinion ofAdvocate General Sir Gordon Slynn in BNIC, cited at paragraph 1320 above, at p.392; Opinion of Judge Vesterdorf acting as Advocate General in Rhône-Poulenc vCommission, cited at paragraph 1053 above, at pp. II-875 to II-953). 4194. The Court points out that the mere fact of being a member of Cembureau does notof itself suffice to render Unicem liable for the manifestly unlawful decision takenby the Head Delegates in its absence (see paragraph 1413 above). For that reason,in order to assess its participation in the Cembureau agreement, Unicem wastreated in the same way as an indirect member of Cembureau. 4195. The Commission has in fact established that Unicem demonstrated its adherenceto the Cembureau agreement by participating in measures adopted within theframework of the single agreement relating to the ETF (see paragraph 4104above). Consequently, Unicem's argument that the members of Cembureau wereheld objectively liable for Cembureau's conduct must be rejected. 4196. Valenciana claims that, in the absence of any link between Cembureau and theEPC, the Commission could not find that its participation in the EPC meant thatit had participated in the Cembureau agreement. 4197. That argument must be rejected. As an indirect member of Cembureau,Valenciana must have been aware of the Cembureau agreement (see paragraph 4098 above). Regardless of whether the EPC maintained links with Cembureau,Valenciana, by participating in the EPC's activities, which have been shown to havepursued the same objective as the Cembureau agreement (see paragraphs 4055 and4056 above), was aware that it was implementing the joint plan adopted andconfirmed at the Head Delegates meetings and that in future it would be seen bythe other participants in the Cembureau agreement as adhering to that agreement. 4198. Asland and Uniland observe that, in view of the special position of the Spanishcement industry compared with the other Community cement industries at the timewhen the Commission believes the Cembureau agreement to have been concluded,the Spanish producers cannot be criticised for having participated in thatagreement. They point out that Spanish exports to the Community marketsprovoked considerable reaction on the part of the European cement industry, inparticular the Irish industry (see contested decision, recital 19, paragraph 5), whichled to anti-dumping complaints being lodged with the Commission by the CLC. Furthermore, it follows from the Blue Circle internal memorandum referred to inrecital 18, paragraph 2, of the contested decision that the United Kingdomproducers did not contemplate taking any steps other than lodging anti-dumpingcomplaints to deal with Spanish exports. Uniland further observes that the Spanishproducers increased their exports to Ireland in spite of the pressure brought to bearon them. Finally, Uniland rejects the various documents, all dating from 1984, onwhich the Commission relies in its statement of defence when it asserts that thewithdrawal of the anti-dumping complaints against the Spanish producers followedtheir participation, and in particular Uniland's participation, in the Cembureauagreement. Uniland observes that it was Spain's accession to the Community on1 January 1986 that was the decisive factor in the withdrawing of the complaints. 4199. Those arguments must also be rejected. Asland and Uniland must have beenaware of the Cembureau agreement, since they were indirect members of thatassociation (see paragraph 4098 above). Furthermore, a member of Asland's staff,Mr Bertrán, attended the Head Delegates meetings on 14 January 1983 and 19March 1984 at which the Cembureau agreement was concluded and confirmed(contested decision, recital 19, paragraphs 4 and 8; documents 33.126/11581 and11699). Consequently, when Asland and Uniland participated in 1986 inagreements and concerted practices having the same object as the Cembureauagreement within the framework of the ETF (Asland participated in theinfringement referred to in Article 4(1) of the contested decision; Unilandparticipated in the infringement referred to in Article 4(1), (2) and (3)(a) of thecontested decision), they must have been aware that they were implementing thejoint plan adopted and confirmed at the Head Delegates meetings and that infuture they would be seen by the other participants in the Cembureau agreementas adhering to that agreement. 4200. The various factors put forward by the applicants concerned, which relate to aperiod prior to their participation in 'their measures implementing the Cembureau agreement, are not of such a nature as to call that assessment intoquestion. In any event, the Cembureau agreement did not prohibit all exportsbetween Member States; it was only opposed to 'random exports (see paragraphs1120 and 1121 above). 4201. CBR, Ciments Français and Asland maintain that the Head Delegates represented,at the very most, their respective national associations, at the Head Delegatesmeetings, not individual undertakings. The Commission was therefore not entitledto find that they participated in the Cembureau agreement purely on the groundthat a member of their staff was present at the meetings concerned. 4202. Asland further observes that the Commission's approach to the Cembureauagreement, pursuant to which the Commission considered that Mr Bertrán'sconduct at the Head Delegates meetings in 1983 and 1984 rendered two separatelegal persons, Asland and Oficemen, both liable, contrasts with its approach to theHispano-Portuguese agreement, in regard to which the Commission considered thatthe natural persons representing Oficemen did not also act on behalf of the variousundertakings to which they belonged. 4203. The Court points out, however, that those arguments are based on a misreading ofthe contested decision. Evidence of the participation in the Cembureau agreementof the applicants concerned, all indirect members of Cembureau, was based not onthe presence of a member of their staff at the Head Delegates meetings but ontheir participation in measures which implemented the Cembureau agreement (seeparagraphs 1308 to 1310, 1440 and 1441 above). 4204. Furthermore, the fact that the Commission chose not to impugn the Spanishundertakings in connection with the Hispano-Portuguese agreement referred to inArticle 3(2) of the contested decision is not of such a nature as to exonerate theapplicants concerned from their full liability for participating in the infringementreferred to in Article 1 of the contested decision, provided that their participationwas properly established (see, to that effect, Woodpulp II, cited in paragraph 106above, paragraph 146). 4205. Cimpor and SECIL claim that the Commission used the Cembureau agreement toexplain why they made no sales in Spain and that it used that fact and the existenceof an alleged Hispano-Portuguese agreement to show that they had acceded to theCembureau agreement. 4206. SECIL observes that it was not mentioned in the documents establishing theexistence of the Cembureau agreement and considers that it cannot therefore beaccused of having participated in that agreement. 4207. The Court points out, however, that in the contested decision only Cimpor's andSECIL's participation in the Hispano-Portuguese agreement referred to in Article 3(2), not the fact that they had made no sales in Spain, was regarded as amanifestation of their accession to the Cembureau agreement. The existence of theHispano-Portuguese agreement and Cimpor's and SECIL's participation in thatagreement were established on the basis of specific documentary evidence (seeparagraphs 2053 to 2092 above). That agreement pursued the same objective asthe Cembureau agreement, an agreement of which Cimpor and SECIL must havebeen aware in their capacity as indirect members of Cembureau (see paragraphs4043, 4044 and 4098 above). Furthermore, at the material time ATIC, a directmember of Cembureau, had only two members, Cimpor and SECIL (letter of 29June 1998 from ATIC to the Court Registry). Furthermore, a member of Cimpor'sstaff attended the three Head Delegates meetings at which the Cembureauagreement was concluded and confirmed (contested decision, recital 19, paragraphs4, 8 and 13; documents 33.126/11581, 11699, 11752 and 11753). 4208. Consequently, when Cimpor and SECIL participated in the Hispano-Portugueseagreement they must have been aware that they were implementing the joint planconcluded and confirmed at the Head Delegates meetings and that in future theywould be seen by the other participants in the Cembureau agreement as accedingto that agreement. 4209. The fact that there is no reference to SECIL in the documents establishing theexistence of the Cembureau agreement is not of such a nature as to call thatassessment in question. 4210. Halkis claims that its membership of the Greek association was purely formal, sinceit played no substantial role in adopting the decisions of that association. In orderto challenge its participation in the Cembureau agreement, it emphasises that theagreement and its implementing measures ran counter to its interests. 4211. It further relies on the fact that its conduct provoked strong reactions on the partof a number of undertakings, associations and European governments. It observesthat its name is not mentioned in the two Blue Circle internal memos, one dated1 December 1983 (contested decision, recital 18, paragraph 2; documents 33.126/11332 to 11334) and the other undated (contested decision, recital 18,paragraph 3; documents 33.126/11335 to 11337). 4212. The Court observes, however, that, as an indirect member of Cembureau, Halkismust have been aware of the Cembureau agreement (see paragraph 4098 above). Regardless of the role which it played within AGCI, by participating in the activitiesof the EPC, which pursued the same objective as the Cembureau agreement, atleast from 18 November 1983 (see paragraphs 3980 and 4056 above), Halkis wasnecessarily aware that it was implementing the joint plan concluded and confirmedat the Head Delegates meetings and that in future it would be seen by the otherparticipants in the Cembureau agreement as acceding to that agreement. The factthat there is no reference to Halkis in the Blue Circle internal memoranda is irrelevant. Nor can Halkis claim that the Cembureau agreement ran counter to itsinterests, since that agreement protected the Greek market, like all the otherEuropean home markets, against imports. 4213. None the less, owing especially to the particular conduct of the Greek undertakingson the market, it has already been found that as from 1 September 1986 Halkis wasno longer seen by the other cement producers as subscribing to the common ruleof non-transhipment to home markets. The particular conduct on the market towhich Halkis refers, which triggered the formation of the ETF and the measuresadopted within it, is therefore a factor which the Court will take into considerationwhen it determines the duration of that undertaking's participation in theinfringement referred to in Article 1 of the contested decision (see paragraphs 4414to 4417 below). B  Continuous nature of the single infringement 4214. In the course of their pleas to the effect that Article 1 is illegal Dyckerhoff, SFIC,Heidelberger, Lafarge, Aalborg, BCA, Asland, Uniland, Oficemen, Holderbank,Hornos Ibéricos, Aker, EUROC and AGCI expressly dispute the alleged durationof their participation in the infringement referred to in that article. In the contextof their pleas to the effect that the fines should be cancelled, CBR, CimentsLuxembourgeois, Vicat, Ciments Français, Unicem, Valenciana, Irish Cement,Cimpor, SECIL, Italcementi, Cementir, Blue Circle and Halkis dispute the durationof the infringement. In any event, since all the applicants have disputed theirparticipation in the infringement referred to in Article 1 of the contested decision,they have also raised the more limited argument that there is insufficient proof ofthe duration of their participation in that infringement. 1. Contested decision 4215. As regards the continuous nature, or the duration, of the single Cembureauagreement, the Commission fixed the starting date of the infringement referred toin Article 1 of the contested decision at 14 January 1983, the date on which theCembureau agreement was concluded (contested decision, recital 45, paragraph 1,and recital 65, paragraph 4). 4216. That date was taken in the case of all the addressees of the contested decisionwhich were established in the Community when the Head Delegates meetings inquestion were held, except for Buzzi. 4217. The Commission observes in that regard (contested decision, recital 65, paragraph3, first subparagraph): 'All the undertakings and associations of undertakings towhich [the] decision is addressed acceded to the agreement or principle of not transhipping to home markets (grey cement market), concluded on 14 January 1983between the associations and undertakings which were direct members ofCembureau. As from that date, that agreement bound those undertakings and theundertakings which were members of the national associations concerned. 4218. As regards the Spanish applicants, Asland, Uniland, Oficemen, Hornos Ibéricos andValenciana, and the Portuguese applicants, Cimpor, SECIL and ATIC, theCommission states that it 'could deem their accession to the agreement to havehad effects within the Community as from the date on which they acceded to theagreement (contested decision, recital 45, paragraph 11). It goes on to state,however, that 'it deems the infringement to have occurred as from 1 January 1986,since the participation of the Spanish and Portuguese undertakings did not,according to the Commission's information, produce any significant effects withinthe Community until after the accession of their countries to the Community(same paragraph; see also recital 65, paragraph 4, third subparagraph, secondindent). 4219. The Commission deems the infringement to have occurred as from 28 May 1986in the case of Holderbank and as from 9 June 1986 in the case of Aker andEUROC (contested decision, recital 45, paragraph 11, and recital 65, paragraph 4,third subparagraph, third and fourth indents). The Commission states that it hasno evidence that the participation of those undertakings in the Cembureauagreement had any effect within the Community before those dates. 4220. As regards the end of the infringement, the Commission states that it does not have'any factual evidence to determine the date on which the infringement ended(contested decision, recital 45, paragraph 6). Nor does it identify a date on whichthe infringement referred to in Article 1 of the contested decision came to an end,since 'it has no certainty that the infringement ever really ceased (contesteddecision, recital 65, paragraph 4, fourth subparagraph). For that reason, in Article8 of the contested decision it orders the undertakings to bring the infringement toan end if they have not already done so. 4221. Since the last apparent manifestation of the Cembureau agreement known to theCommission was the liquidation on 26 March 1993 of Interciment, the setting-upof which formed the subject-matter of the infringement referred to in Article 4(2)of the contested decision, the Commission used that date in order to determine thereference period for the fine (contested decision, recital 65, paragraph 4). 2. Starting date of the infringement 2.1. Cembureau and its direct members 4222. The Court has already pointed out that the Commission could lawfully find thatCembureau, FIC, VNC, Ciments Luxembourgeois, SFIC, Aalborg, BDZ, BCA, IrishCement, Cementir and AGCI participated in the infringement referred to in Article1 of the contested decision as from 14 January 1983 (see paragraph 1401 above). Those associations and undertakings participated in the Head Delegates meetingof 14 January 1983 at which the Cembureau agreement was concluded (seeparagraphs 1344 and 1345 above). 4223. As regards Italcementi, it has been found that its participation in the HeadDelegates meeting of 19 March 1984, at which the Cembureau agreement wasconfirmed, shows that it participated in the Cembureau agreement and, accordingly,in the infringement referred to in Article 1 of the contested decision (see paragraph1403 above). 4224. However, the contested decision does not put forward any evidence to show thatItalcementi acceded before 19 March 1984 to the concurrence of wills whichemerged at the Head Delegates meeting of 14 January 1983. Nor has Italcementi'sparticipation in a measure which implemented the Cembureau agreement beenestablished before 19 March 1984. 4225. Consequently, Article 1 of the contested decision must be annulled in so far as itfinds that Italcementi participated in the Cembureau agreement before 19 March1984. 4226. Oficemen and ATIC also participated in the Head Delegates meeting of 14 January1983 and must therefore be considered to have been parties to the Cembureauagreement as from that date (see paragraph 1400 above). 4227. However, the Commission took 1 January 1986 as the starting date of theirparticipation in the infringement. It considered that it was not established that theparticipation of the Spanish and Portuguese undertakings in the Cembureauagreement had produced any significant effects within the Community until afterthe accession of their countries to the Community (contested decision, recital 45,paragraph 11; see also recital 65, paragraph 4, third subparagraph, second indent). 4228. Oficemen and ATIC consider that, since the Commission took the view that theyhad not participated in the infringement before 1 January 1986 because theirparticipation in the Cembureau agreement had not produced any significant effectswithin the Community at that time (contested decision, recital 45, paragraph 11),it should a fortiori have acknowledged that no such effects were produced after 1January 1986, a period in respect of which the Commission had no evidence or firmindication of their participation in the Cembureau agreement. 4229. The Court points out, however, that the participation of Oficemen and ATIC in theCembureau agreement clearly infringed Article 85(1) of the Treaty from 1 January1986 onwards. 4230. In that regard, the Commission was entitled to find that on 1 January 1986Oficemen and ATIC participated, within the framework of Cembureau, in theperiodic information exchanges referred to in Article 2(2) of the contested decisionand that Oficemen also participated in the Hispano-Portuguese agreement referredto in Article 3(2) of the contested decision. That conduct constituted theimplementation of the Cembureau agreement on their part, which showed that on1 January 1986 they had acceded to the anti-competitive object of the Cembureauagreement (see paragraph 4064 above). 4231. Next, the Court points out that on 1 January 1986 the applicants concerned wereestablished in the Community. Regardless of whether the Commission was rightto find that they participated in the infringement before that date on the groundthat they had participated directly in the Head Delegates meeting of 4 January1983, it was not in any event required, in order to establish an infringement ontheir part after 1 January 1986, to show that their participation in the Cembureauagreement had a significant effect on trade between Member States. Theapplication of Article 85(1) of the Treaty requires only that the agreements inrestriction of competition are capable of affecting trade between Member States:there is no need for the Commission to show that the individual participation ofeach party is of such a kind as to affect trade between Member States (Petrofinav Commission, cited at paragraph 2260 above, paragraphs 226 and 227). Theobject of the Cembureau agreement, in which the applicants actually participated,was to prevent or regulate trade between Member States. That agreement wastherefore capable of having an appreciable effect on trade between Member States. 4232. The argument put forward by Oficemen and ATIC must therefore be rejected. 4233. ATIC further maintains that all the documents which the Commission used todemonstrate the existence of the Cembureau agreement and ATIC's participationin that agreement were drawn up before 1 January 1986. They therefore relate toevents which took place before the date from which, according to the contesteddecision, the conduct attributed to ATIC was anti-competitive. ATIC further statesthat proof of its participation in the Cembureau agreement was thus based purelyon its status as a member of Cembureau. 4234. The Court points out that proof of the participation of the direct members ofCembureau in the single and continuous Cembureau agreement relies not only ontheir membership of Cembureau but also, and above all, on their participation inthe Head Delegates meetings at which the Cembureau agreement was concludedand/or confirmed (see paragraphs 1302 and 1342 to 1353 above). ATICparticipated in the three Head Delegates meetings at which the Cembureau agreement was concluded and confirmed. Its participation in the Cembureauagreement as from 14 January 1983 is therefore established. The Commissionfound, however, that its participation in that agreement constituted an infringementonly as from 1 January 1986, not because ATIC's conduct before that date had notbeen anti-competitive but because its participation in the Cembureau agreementhad not produced any significant effects within the Community before that date. 4235. Since it is established that on 1 January 1986 ATIC was still demonstrating itscontinuing adherence to the anti-competitive object of the Cembureau agreementthrough its participation in the periodical exchanges of information referred to inArticle 2(2) of the contested decision, ATIC's argument must be rejected. 4236. Next, Aker and EUROC claim that it follows from the judgment in Woodpulp I,cited in paragraph 1325 above (paragraphs 11 to 18), that the Commission is notcompetent to apply Article 85(1) of the Treaty to an undertaking establishedoutside the Community unless that undertaking has implemented the agreement,decision or concerted practice inside the Community. The applicants claim thatthey never implemented the Cembureau agreement within the Community, evensupposing that the existence of that agreement is established. Article 1 of thecontested decision must therefore be annulled in so far as it relates to them. 4237. The Court points out that Aker and EUROC are direct members of Cembureau,whose respective Head Delegates, Mr Heiberg and Mr Borelius, participated in theHead Delegates meeting of 14 January 1983 (see paragraph 1344 above). As theHead Delegates represented the direct members of Cembureau at the HeadDelegates meetings (see paragraphs 1314 to 1318 above), the participation of Akerand EUROC in the Cembureau agreement is therefore established as from 14January 1983. 4238. The Cembureau agreement, which was concluded between associations andundertakings established inside the Community and outside the Community, aimedto prevent transhipment to home markets in Europe, in particular in theCommunity, and to regulate sales from one country to another. Its object wasmanifestly anti-competitive and capable of having appreciable effects on tradebetween Member States.                                                                     4239. None the less, in the contested decision the Commission found that Aker andEUROC participated in the infringement referred to in Article 1 of the contesteddecision only as from 9 June 1986. 4240. Even if the principles laid down in Woodpulp I, cited at paragraph 1325 above,were to apply in the present case, it would still be quite clear that, contrary to whatAker and EUROC claim, the Commission correctly assessed the territorial scopeof Article 85 of the Treaty in the contested decision. 4241. As from 9 June 1986 (see paragraphs 2764, 3006 to 3021 and 3081 above), Akerand EUROC participated in two agreements within the framework of the singleagreement relating to the ETF, namely the agreement on the setting-up of the ETF(contested decision, Article 4(1)) and the agreement on the setting-up ofInterciment (contested decision, Article 4(2)). The participants in thoseagreements were essentially Community producers and, in particular, the solepurpose of the agreements was to eliminate imports in Western Europe. Byparticipating in those agreements Aker and EUROC implemented the Cembureauagreement in the Community as from 9 June 1986. 4242. The Commission was therefore entitled to consider that Aker's and EUROC'sparticipation in the Cembureau agreement constituted an infringement of Article85(1) of the Treaty as from 9 June 1986. 4243. Finally, as it correctly points out Unicem did not participate in any of the HeadDelegates meetings. 4244. None the less, the Commission was entitled to find that Unicem participated in theinfringement referred to in Article 1 of the contested decision. Unicem'sparticipation in the setting-up of the ETF (contested decision, Article 4(1)) and themeasures adopted within the framework of the single agreement relating to theETF designed to prevent imports of Greek cement by Calcestruzzi (contesteddecision, Article 4(3)) manifested its accession to the Cembureau agreement (seeparagraph 4107 above). 4245. However, it has not been established that Unicem participated in the singleagreement relating to the ETF before 9 September 1986 (see paragraphs 3744 and3745 above). Its participation in the various measures adopted within theframework of the single agreement relating to the ETF therefore shows that itparticipated in the Cembureau agreement but only after that date. 4246. Even if, as the Commission claims, Unicem participated in the periodical exchangesof information as from 1 January 1984, that fact is not of such a nature as to showthat it participated in the Cembureau agreement before 9 September 1986. Participation in those exchanges was designed only to 'facilitate the implementationof the [Cembureau] agreement (contested decision, Article 2(2)) by theassociations and undertakings whose participation in the Cembureau agreement hasalready been established (see paragraphs 1695 to 1699 above). The contesteddecision contains no evidence to show that Unicem had adhered to the Cembureauagreement before 9 September 1986. 4247. Consequently, Article 1 of the contested decision must be annulled in so far as itfinds that Unicem participated in the Cembureau agreement before 9 September1986. 2.2. Indirect members of Cembureau 4248. The indirect members of Cembureau did not participate directly in the HeadDelegates meetings at which the Cembureau agreement was concluded andconfirmed. None the less, the Commission took 14 January 1983, the date of theHead Delegates meeting at which the Cembureau agreement was concluded, as thestarting point of the infringement by indirect members established in theCommunity at the material time (see paragraphs 4216 and 4217 above). TheCommission considers that the Head Delegates represented not only the directmembers of Cembureau but also its indirect members at their meetings. Itobserves, in that regard, that 'the cement producers are the real actors, actingthrough their trade associations (contested decision, recital 44, paragraph 5). 4249. The Court has already pointed out, however, that because of inconsistency betweenthe SO and the contested decision the Commission was not entitled in thecontested decision to take Cembureau's indirect members' membership of anassociation as a ground for holding them liable for the infringement (seeparagraphs 544 to 563 above). The sole ground on which it could lawfully hold theindirect members of Cembureau liable for the infringement was that of accessionto the Cembureau agreement through a measure implementing that agreement(contested decision, recital 45, paragraph 10, and recital 65, paragraph 3) (seeparagraph 564 above). That is the same ground used to attribute liability in the SO(see paragraphs 556 to 563 above). In the SO the Commission considered thatundertakings which were not direct members of Cembureau had acceded to theCembureau agreement with effect from the date of their participation in a measureimplementing that agreement. 4250. The Court has also found, when it assessed the substance of the pleas, that theCommission established that the following indirect members of Cembureau hadacceded to the Cembureau agreement by virtue of their participation in one ormore measures implementing that agreement: CBR, Dyckerhoff, Vicat, CimentsFrançais, Heidelberger, Lafarge, Valenciana, Asland, Uniland, Cimpor, SECIL,Holderbank, Hornos Ibéricos, Blue Circle and Halkis. 4251. It is still necessary to consider whether the Commission has established that thoseindirect members participated in the infringement as from the date applied to themin the contested decision. 4252. The Court points out that proof has been adduced that Dyckerhoff, CimentsFrançais and Lafarge participated in the Franco-German agreements and concertedpractices (contested decision, Article 3(3)(a)) from 23 June 1982. The Commissionalso found that Heidelberger had participated in that agreement from 17 November1982 (see paragraph 2436 above). Since the Franco-German agreements andconcerted practices constituted, on the part of those undertakings, a measureimplementing the Cembureau agreement as from 14 January 1983 (see paragraph 4154 above), the Commission was entitled to find that Dyckerhoff, CimentsFrançais, Heidelberger and Lafarge participated in the infringement referred to inArticle 1 of the contested decision as from that date. 4253. Next, the Court points out that in the case of the Portuguese undertakings, Cimporand SECIL, the Commission was entitled to fix the starting date of the infringementat 1 January 1986. It established that their participation in the infringementrelating to the Hispano-Portuguese agreement as from 1 January 1986 (contesteddecision, Article 3(2)) constituted a manifestation of their accession to theCembureau agreement (see paragraph 4208 above). 4254. However, Cimpor and SECIL claim that the documents which the Commissionused to demonstrate the existence of the Cembureau agreement and theirparticipation therein pre-date 1 January 1986. 4255. That argument is factually inaccurate. The Commission established that Cimporand SECIL participated in the infringement relating to the Hispano-Portugueseagreement as from 1 January 1986 on the basis of specific documentary evidence,some of which post-dates 1 January 1986 (see paragraphs 2070 to 2082 and 2115above). Their participation in the Hispano-Portuguese agreement manifests theiraccession to the Cembureau agreement. 4256. Similarly, Article 1 correctly finds that Valenciana and Hornos Ibéricos participatedin the infringement as from 1 January 1986, because from that date they manifestedtheir accession to the Cembureau agreement through their participation in theconcerted practice in the framework of the EPC (Article 6 of the contesteddecision). 4257. Since the starting point of Holderbank's participation in the setting-up of the ETF(contested decision, Article 4(1)) was properly fixed at 28 May 1986, participationwhich manifested its accession to the Cembureau agreement, the Commission hasshowed that Holderbank participated in the infringement referred to in Article 1of the contested decision as from that date. 4258. On the other hand, in the case of CBR, Vicat, Asland, Uniland, Blue Circle andHalkis, the Commission has not adduced proof of their participation in theinfringement as from the date stated in the contested decision. 4259. First, the Court points out that, after noting the inconsistency referred to inparagraph 4249 above, the Court has already held, in connection with the pleaalleging infringement of the rights of the defence, that Article 1 of the contesteddecision must be annulled in so far as it fixes the starting point of participation inthe infringement at a date before 11 May 1983 in Vicat's case and before 28 May1986 in the case of CBR, Asland and Uniland (see paragraph 568 above). Afterexamining the pleas on the substance of the case, the Court must determine whether those undertakings may still be regarded as having acceded to theCembureau agreement as from those dates. 4260. Vicat manifested its accession to the Cembureau agreement by participating in theconcerted practice with Buzzi referred to in Article 3(1)(c) of the contesteddecision, the starting date of which was properly fixed at 11 May 1983. TheCommission therefore showed that Vicat participated in the infringement referredto in Article 1 of the contested decision as from that date. 4261. The participation of CBR, Asland and Uniland in the infringement referred to inArticle 4(1) of the contested decision constitutes the first manifestation of theiraccession to the Cembureau agreement. 4262. The starting date of Asland's infringement was lawfully fixed at 28 May 1986. TheCommission has therefore showed that Asland participated in the infringementreferred to in Article 1 of the contested decision as from that date. 4263. Asland, like Oficemen and ATIC (see paragraph 4228 above), maintains that itsalleged participation in the Cembureau agreement never produced significanteffects within the Community (contested decision, recital 45, paragraph 11). Thatargument must be rejected for the reasons stated in paragraph 4231 above. 4264. As regards CBR and Uniland, Article 4(1) of the contested decision must beannulled in so far as it finds that they participated in the agreement on the setting-up of the ETF before 9 June 1986 (see paragraph 2604) and 9 September 1986(see paragraph 2699 above) respectively. In the absence of any evidence that CBRand Uniland acceded to the Cembureau agreement before those dates, Article 1of the contested decision must be annulled in so far as it finds that CBRparticipated in the Cembureau agreement before 9 June 1986 and that Uniland didso before 9 September 1986. 4265. As regards, second, Blue Circle and Halkis, their participation in the concertedpractice within the framework of the EPC referred to in Article 6 of the contesteddecision constituted the first manifestation of their accession to the Cembureauagreement. However, the Commission has not established that the members of theEPC sought to 'prevent incursions by competitors on respective national marketsin the Community before 18 November 1983 (see paragraph 3980 above). Theconduct referred to in Article 6 of the contested decision cannot therefore beregarded as implementation of the Cembureau agreement by Blue Circle andHalkis before that date. 4266. It follows that Article 1 of the contested decision must be annulled in so far as itfinds that Blue Circle and Halkis participated in the Cembureau agreement before18 November 1983. 2.3. Conclusions 4267. Article 1 of the contested decision must be annulled in so far as it findsparticipation in the Cembureau agreement by:  CBR before 9 June 1986;  Vicat before 11 May 1983;  Unicem before 9 September 1986;  Asland before 28 May 1986;  Uniland before 9 September 1986;  Italcementi before 19 March 1984;  Blue Circle before 18 November 1983;  Halkis before 18 November 1983. 3. Continuous nature of the infringement 4268. The applicants named in paragraph 4214 above deny that the infringement referredto in Article 1 of the contested decision was a continuous infringement. TheCommission had no reason to consider that the infringement was continuing whenit adopted the contested decision. The applicants point out that the last HeadDelegates meeting referred to in the contested decision was held on 7 November1984. They consider that in any event they cannot be found to have participatedin the Cembureau agreement for longer than the duration of the relevantimplementing measures. 4269. The Commission observes, with reference to the Opinion of Advocate General SirGordon Slynn in Musique Diffusion Française and Others v Commission, cited atparagraph 2800 above (at p. 1941), that 'a conspiracy, once established, ispresumed to continue until the contrary is shown. It has been shown that theCembureau agreement existed and that the various applicants participated in it: theapplicants concerned must therefore prove that the agreement had come to an endor that they demonstrated that they did not agree with it. 4270. That argument cannot be upheld, for the reasons stated in paragraphs 2801 and2802 above. It is for the Commission to prove not only the existence of theagreement but also its duration (Dunlop Slazenger v Commission, cited at paragraph270 above, paragraph 79). 4271. In order to determine whether the Commission was entitled not to fix the date onwhich the infringement ended and, accordingly, to presume that the agreement wasstill in force when it adopted the contested decision, the Court must first examinethe only two passages in the grounds of the decision dealing with the duration ofthe infringement. 4272. In recital 45, paragraph 6, which deals with the Cembureau agreement, theCommission observes: 'The Commission does not have any factual evidence todetermine the date on which the infringement ended; nor is it indeed in a positionto establish that the undertakings in question have put an end to it. 4273. In recital 65, paragraph 4, fourth subparagraph, which deals with the fines, theCommission further observes: 'While the Commission is able to establish the dateon which the infringement constituted by the Cembureau agreement or principlecommenced, it has no certainty that the infringement ever really ceased, and itcannot therefore establish a date for the ending of the infringement. However,since the apparently final manifestation of the agreement, known to theCommission, is the liquidation of Interciment SA [the company whose setting-upforms the subject-matter of the infringement referred to in Article 4(2) of thecontested decision], the Commission has used that date for determining thereference period for the fine. 4274. It follows that the Commission presumed that the agreement had continued to beobserved even after the last known manifestation of its application and so did notfix a date for the ending of the infringement referred to in Article 1 of thecontested decision. 4275. At the hearing the Commission defended its approach by invoking the particularcharacteristics of the Cembureau agreement. It observed that the agreement inquestion was of indeterminate duration. The object of the agreement was simple,unlike, for example, a price-fixing agreement, and there was no need to holdperiodic meetings. All that the parties needed to do to comply with the agreementwas to refrain from making (uncontrolled) sales outside their territory; compliancewith the agreement thus left no traces. Therefore the fact that at a particular timethe undertakings no longer participated in visible measures implementing theCembureau agreement does not show that they no longer adhered to thatagreement. The Commission also emphasised that the success of the agreementdepended on its being complied with by all producers. 4276. The Court accepts that the Cembureau agreement did in fact present the particularcharacteristics described by the Commission. The question in the present case is,however, whether, having regard to the fact that the Commission bears the burdenof proving an infringement of Article 85 of the Treaty, those characteristics sufficeto show that each applicant participated in the Cembureau agreement until thedate on which the contested decision was adopted. 4277. In that regard, the Court finds that all the bilateral or multilateral agreements andconcerted practices which the Commission correctly classified as measuresimplementing the Cembureau agreement, with the exception of the infringementreferred to in Article 4(3)(b) of the contested decision, had ended by 19 May 1989at the latest, the date which, in the case of certain members of the EPC,corresponds to the date on which the infringement referred to in Article 6 of thecontested decision came to an end. In that regard, it should be recalled thatArticle 4(1) and (2) of the decision must be annulled in so far as they find aninfringement after 31 May 1987 (see paragraph 2806 above) and 7 November 1988(see paragraph 3097 above) respectively. 4278. Even though the Commission has shown that the infringement referred to in Article4(3)(b) of the contested decision lasted until 3 April 1992, that infringementinvolves only three of the applicants, Unicem, Italcementi and Cementir. Althoughthe five-year contracts which form the subject-matter of that infringement andwhich had 'as their aim the prevention of imports of Greek cement byCalcestruzzi had produced effects on the Community market until 3 April 1992,that does not mean that the Cembureau agreement still governed relations betweencompeting European cement producers on that date, even less so on the date whenthe contested decision was adopted, 30 November 1994. The fact that all the othermeasures implementing the Cembureau agreement which are referred to in thecontested decision came to an end by 19 May 1989 at the latest, a few weeks afterthe first investigations carried out by the Commission (contested decision, recital1), tends rather to demonstrate the contrary. 4279. The Court therefore concludes that having regard to all the evidence put forwardin the contested decision the Commission was not entitled to take the view that allthe addressees whose participation in the Cembureau agreement had beenestablished were still adhering to that agreement when the contested decision wasadopted. 4280. Next, the Court must consider the duration of each applicant's participation in theCembureau agreement, having regard to the factual evidence in the contesteddecision. 4281. As the Commission correctly observes (contested decision, recital 65, paragraph 4),participation by an undertaking or association in a measure implementing theCembureau agreement manifested its accession to that agreement. Thereforeparticipation by an applicant in the infringement referred to in Article 1 of thecontested decision is established at least for the entire period in respect of whichthe Commission lawfully established its participation in a measure implementing theCembureau agreement. 4282. Admittedly, as the Commission alleges, participation by an applicant in theCembureau agreement left few traces. None the less, having regard to the method of establishing an infringement employed in the contested decision, the Commissionwas not entitled to rely on that factor in order to find that an applicant hadcontinued to adhere to the Cembureau agreement beyond the date on which thelast measure whereby it implemented the Cembureau agreement came to an end. 4283. In that regard, it should be observed that in the contested decision the Commissionchose to rely solely on specific documentary evidence to establish the variousinfringements and the participation of the undertakings and associations concernedin those infringements. As a result, the undertakings whose participation in theCembureau agreement was not shown by such evidence were not referred to in thecontested decision. Since the Commission itself considered that it was impossibleto establish that an undertaking had participated in the Cembureau agreement ifthere was no documentary evidence of such participation, it could not, without suchdocumentary evidence, presume that an undertaking whose participation in theCembureau agreement had been established continued to adhere to that agreementbeyond the point at which it was last shown to have participated in animplementing measure. 4284. The documentary evidence which the Commission put forward in the contesteddecision in support of its finding of the infringements referred to in Article 2,Article 3(1)(a) and (c), Article 3(2) and (3), Article 4(1) to (3) and Article 6 showunequivocally that the applicants concerned acceded to the Cembureau agreement. On the other hand, the absence of documentary evidence of continuing adherenceto the agreement can be interpreted in two ways. It may indicate that the partywhose participation in the Cembureau agreement is established continued toadhere to the agreement without leaving any traces. It may, however, also indicatethat the party concerned did not continue to participate in the agreement. It wasprecisely because the lack of documentary evidence could be interpreted in twoways that the Commission took into consideration, for the purposes of thecontested decision, only the undertakings whose participation in the Cembureauagreement it had been able to establish on the basis of specific documentaryevidence. 4285. Consequently, the Court must assess, solely on the basis of the documentaryevidence set out in the contested decision, the duration of the participation of eachapplicant whose participation in the Cembureau agreement has been establishedby the Commission. 3.1. CBR 4286. It has already been pointed out that the Commission was not entitled to fix thestarting date of CBR's participation in the infringement at a date before 9 June1986 (see paragraph 4264 above). 4287. CBR manifested its accession to the Cembureau agreement through variousmeasures which implemented that agreement. Thus it participated in theagreement on the setting-up of the ETF (contested decision, Article 4(1)) between9 June 1986 and 31 May 1987 (see paragraphs 2604, 2784 and 2806 above), theagreement on the setting-up of Interciment (contested decision, Article 4(2))between 9 June 1986 and 7 November 1988 (see paragraphs 3017 and 3097 above)and in the concerted practices designed to withdraw Calcestruzzi as a customerfrom the Greek producers, and from Titan in particular (contested decision, Article4(3)(a)) between 9 September 1986 and 15 March 1987 (see paragraphs 3204, 3205and 3301 to 3305 above). 4288. In the absence of any evidence that CBR continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established between 9 June 1986 and 7 November 1988. 4289. Article 1 of the contested decision must therefore be annulled in so far as it findsthat CBR participated in that infringement before 9 June 1986 and after 7November 1988. 3.2. Cembureau 4290. Cembureau participated in the Head Delegates meetings of 14 January 1983 and19 March and 7 November 1984 (see paragraph 1342 above). It also participatedin a number of measures which implemented the Cembureau agreement. 4291. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) between 14 January 1983 and 19 March 1984 and the periodicexchanges of information (contested decision, Article 2(2)) between 1 January 1984and 31 December 1988 (see paragraph 1817 above). It also participated in anumber of measures within the framework of the single agreement relating to theETF (contested decision, Article 4(1) and (3)(a)) between 28 May 1986 and 31May 1987 (see paragraphs 3731 and 3732 above). 4292. In the absence of any evidence that Cembureau continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 14 January 1983 to 31 December 1988. 4293. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Cembureau participated in that infringement after 31 December 1988. 3.3. FIC 4294. FIC participated in the Head Delegates meetings of 14 January 1983 and 19 Marchand 7 November 1984 (see paragraphs 1344, 1345, 1350 and 1352 above). It alsoparticipated in two measures which implemented the Cembureau agreement. 4295. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) between 14 January 1983 and 19 March 1984 and the periodicexchanges of information (contested decision, Article 2(2)) between 1 January 1984and 31 December 1988 (see paragraph 1817 above). 4296. In the absence of any evidence that FIC continued to participate in the Cembureauagreement after it had ceased to participate in the last implementing measure, itscontinuous participation in the Cembureau agreement must be considered to havebeen established from 14 January 1983 to 31 December 1988. 4297. Article 1 of the contested decision must therefore be annulled in so far as it findsthat FIC participated in that infringement after 31 December 1988. 3.4. VNC 4298. VNC participated in the Head Delegates meetings of 14 January 1983 and 19March 1984 (see paragraphs 1344, 1345 and 1350 above). It also participated intwo measures which implemented the Cembureau agreement. 4299. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) between 14 January 1983 and 19 March 1984 and the periodicexchanges of information (contested decision, Article 2(2)) between 1 January 1984and 31 December 1988 (see paragraph 1817 above). 4300. In the absence of any evidence that VNC continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 14 January 1983 to 31 December 1988. 4301. Article 1 of the contested decision must therefore be annulled in so far as it findsthat VNC participated in that infringement after 31 December 1988. 3.5. Ciments Luxembourgeois 4302. Ciments Luxembourgeois participated in the Head Delegates meetings of 14January 1983 and 19 March and 7 November 1984 (see paragraphs 1344, 1345,1350 and 1352 above). It also participated in two measures which implemented theCembureau agreement. 4303. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) between 14 January 1983 and 19 March 1984 and the periodicexchanges of information (contested decision, Article 2(2)) between 1 January 1984and 31 December 1988 (see paragraph 1817 above). 4304. In the absence of any evidence that Ciments Luxembourgeois continued toparticipate in the Cembureau agreement after it had ceased to participate in thelast implementing measure, its continuous participation in the Cembureauagreement must be considered to have been established from 14 January 1983 to31 December 1988. 4305. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Ciments Luxembourgeois participated in that infringement after 31 December1988. 3.6. Dyckerhoff 4306. Dyckerhoff manifested its accession to the Cembureau agreement through variousmeasures which implemented that agreement. 4307. Thus between 23 June 1982 and 12 August 1987 (see paragraph 2469 above) itparticipated in the Franco-German agreements and concerted practices (contesteddecision, Article 3(3)(a)), by which it implemented the Cembureau agreement asfrom 14 January 1983 (see paragraph 4154 above). It also participated in theagreement on the setting-up of the ETF (contested decision, Article 4(1)) between28 May 1986 and 31 May 1987 (see paragraphs 2620 and 2806 above), theagreement on the setting-up of Interciment (contested decision, Article 4(2))between 9 June 1986 and 7 November 1988 (see paragraphs 3017 and 3097 above)and in the concerted practices designed to withdraw Calcestruzzi as a customerfrom the Greek producers, and from Titan in particular (contested decision, Article4(3)(a)) between 9 September 1986 and 15 March 1987 (see paragraphs 3204, 3205and 3301 to 3305 above). 4308. In the absence of any evidence that Dyckerhoff continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 14 January 1983 to 7 November 1988. 4309. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Dyckerhoff participated in that infringement after 7 November 1988. 3.7. SFIC 4310. SFIC participated in the Head Delegates meetings of 14 January 1983 and 19March and 7 November 1984 (see paragraphs 1344, 1345, 1350 and 1352 above). It also participated in a number of measures which implemented the Cembureauagreement. 4311. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) between 14 January 1983 and 19 March 1984 and the periodicexchanges of information (contested decision, Article 2(2)) between 1 January 1984and 31 December 1988 (see paragraph 1817 above). Between 23 June 1982 and12 August 1987 it also participated in the Franco-German agreements andconcerted practices (contested decision, Article 3(3)) (see paragraphs 2469 and2503 above), by which it implemented the Cembureau agreement as from 14January 1983 (see paragraph 4154 above). It also participated in a number ofmeasures within the framework of the single agreement relating to the ETF(contested decision, Article 4(1) to (3)(a)) between 28 May 1986 and 7 November1988 (see paragraphs 2625, 2806, 3030, 3097, 3135 and 3136 above). 4312. It follows that SFIC must be held to have participated continuously in theCembureau agreement from 14 January 1983 to 31 December 1988. 4313. In the absence of any evidence that SFIC continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, Article 1 of the contested decision must be annulled in so far as it findsthat SFIC participated in that infringement after 31 December 1988. 3.8. Vicat 4314. The Court has already held that the Commission was not entitled to fix the startingdate of Vicat's participation in the infringement referred to in Article 1 of thecontested decision at a date before 11 May 1983 (see paragraphs 4259 and 4260above). 4315. Vicat manifested its accession to the Cembureau agreement through a measurewhich implemented that agreement, namely the concerted practice with Buzzi(contested decision, Article 3(1)(c)), which has been proved to have been aninfringement from 11 May 1983 to 23 April 1986 (see paragraphs 1970 and 2034above). 4316. In the absence of any evidence that Vicat continued to participate in theCembureau agreement after it had ceased to participate in that single implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to be established from 11 May 1983 to 23 April 1986. 4317. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Vicat participated in that infringement before 11 May 1983 and after 23 April1986. 3.9. Ciments Français 4318. Ciments Français manifested its accession to the Cembureau agreement throughvarious measures which implemented that agreement. 4319. Thus between 23 June 1982 and 12 August 1987 (see paragraph 2469 above) itparticipated in the Franco-German agreements and concerted practices (contesteddecision, Article 3(3)(a)), by which it implemented the Cembureau agreement asfrom 14 January 1983 (see paragraph 4154 above). It also participated in theagreement on the setting-up of the ETF (contested decision, Article 4(1)) between28 May 1986 and 31 May 1987 (see paragraphs 2632 and 2806 above), theagreement on the setting-up of Interciment (contested decision, Article 4(2))between 9 June 1986 and 7 November 1988 (see paragraphs 3038 and 3097 above). Last, it participated in the concerted practice within the framework of the EPCbetween 18 November 1983 and 17 February 1989 (see paragraph 3980 above). 4320. In the absence of any evidence that Ciments Français continued to participate inthe Cembureau agreement after it had ceased to participate in the lastimplementing measure, its continuous participation in the Cembureau agreementmust be considered to be established from 14 January 1983 to 17 February 1989. 4321. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Ciments Français participated in that infringement after 17 February 1989. 3.10. Heidelberger 4322. Heidelberger manifested its accession to the Cembureau agreement through twomeasures which implemented that agreement. 4323. Thus between 17 November 1982 and 12 August 1987 (see paragraph 2469 above)it participated in the Franco-German agreements and concerted practices(contested decision, Article 3(3)(a)), by which it implemented the Cembureauagreement as from 14 January 1983 (see paragraph 4154 above). It alsoparticipated in the agreement on the setting-up of the ETF (contested decision,Article 4(1)) between 28 May 1986 and 31 May 1987 (see paragraphs 2643 and2806 above). 4324. In the absence of any evidence that Heidelberger continued to participate in theCembureau agreement after it had ceased to participate in the last implementing measure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 14 January 1983 to 12 August 1987. 4325. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Heidelberger participated in that infringement after 12 August 1987. 3.11. Lafarge 4326. Lafarge manifested its accession to the Cembureau agreement through a numberof measures which implemented that agreement. 4327. Thus it participated in a concerted practice with Buzzi (contested decision, Article3(1)(a)) between 26 November and 31 December 1988 (see paragraphs 1829 to1876 above) and, between 23 June 1982 and 12 August 1987 (see paragraph 2469above), in the Franco-German agreements and concerted practices (contesteddecision, Article 3(3)(a)), by which it implemented the Cembureau agreement asfrom 14 January 1983 (see paragraph 4154 above). It also participated in theagreement on the setting-up of the ETF (contested decision, Article 4(1)) between28 May 1986 and 31 May 1987 (see paragraphs 2650 and 2806 above), in theagreement on the setting-up of Interciment (contested decision, Article 4(2))between 9 June 1986 and 7 November 1987 (see paragraphs 3017 and 3097 above)and in the concerted practices designed to withdraw Calcestruzzi as a customerfrom the Greek producers, and from Titan in particular (contested decision, Article4(3)(a)), between 17 June 1986 and 15 March 1987 (see paragraphs 3228 and 3301to 3305 above). Finally, it participated in the concerted practice within theframework of the EPC between 18 November 1983 and 19 May 1989 (seeparagraphs 3973 and 3980 above). 4328. In the absence of any evidence that Lafarge continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 14 January 1983 to 19 May 1989. 4329. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Lafarge participated in that infringement after 19 May 1989. 3.12. Aalborg 4330. Aalborg participated in the Head Delegates meetings of 14 January 1983 and 19March and 7 November 1984 (see paragraphs 1344, 1345, 1350 and 1352 above). It also participated in a number of measures which implemented the Cembureauagreement. 4331. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) between 14 January 1983 and 19 March 1984 and the periodicexchanges of information (contested decision, Article 2(2)) between 1 January 1984and 31 December 1988 (see paragraph 1817 above). It also participated in anumber of measures within the framework of the single agreement relating to theETF (contested decision, Article 4(1) and (3)(a)) between 9 September 1986 and31 May 1987 (see paragraphs 2657, 2806, 3204, 3205 and 3301 to 3305 above). 4332. In the absence of any evidence that Aalborg continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 14 January 1983 to 31 December 1988. 4333. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Aalborg participated in that infringement after 31 December 1988. 3.13. BDZ 4334. BDZ participated in the Head Delegates meetings of 14 January 1983 and 19March and 7 November 1984 (see paragraphs 1344, 1345, 1350 and 1352 above). It also participated in a number of measures which implemented the Cembureauagreement. 4335. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) between 14 January 1983 and 19 March 1984 and the periodicexchanges of information (contested decision, Article 2(2)) between 1 January 1984and 31 December 1988 (see paragraph 1817 above). Between 23 June 1982 and12 August 1987 (see paragraphs 2469 and 2503 above) it participated in theFranco-German agreements and concerted practices (contested decision, Article3(3)), by which it implemented the Cembureau agreement as from 14 January 1983(see paragraph 4154 above). It also participated in a number of measures withinthe framework of the single agreement relating to the ETF (contested decision,Article 4(1) to (3)(a)) between 9 June 1986 and 7 November 1988 (see paragraphs2673, 2806, 3030, 3097, 3239, 3240 and 3301 to 3305 above). 4336. In the absence of any evidence that BDZ continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 14 January 1983 to 31 December 1988. 4337. Article 1 of the contested decision must therefore be annulled in so far as it findsthat BDZ participated in that infringement after 31 December 1988. 3.14. Unicem 4338. The Court has already held that the Commission was not entitled to fix the startingdate of Unicem's participation in the infringement referred to in Article 1 of thecontested decision at a date before 9 September 1986 (see paragraph 4247 above). 4339. Unicem manifested its accession to the Cembureau agreement through a numberof measures which implemented that agreement. 4340. Thus it participated in the periodic exchanges of information (contested decision,Article 2(2)) between 9 September 1986 and 31 December 1988 (see paragraph1817 above). It participated in the agreement on the setting-up of the ETF(contested decision, Article 4(1)) between 9 September 1986 and 31 May 1987 (seeparagraphs 2683 and 2806 above), in the concerted practices designed to withdrawCalcestruzzi as a customer from the Greek producers, and from Titan in particular(contested decision, Article 4(3)(a)), between 9 September 1986 and 15 March1987 (see paragraphs 3252, 3253 and 3301 to 3305 above), and also in theagreement with Italcementi and Cementir relating to the contracts and agreementssigned on 3 and 15 April 1987 having as their aim the prevention of imports ofGreek cement by Calcestruzzi (contested decision, Article 4(3)(b)) between 3 April1987 and 3 April 1992 (see paragraph 3396 above). 4341. In the absence of any evidence that Unicem continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 9 September 1986 to 3 April 1992. 4342. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Unicem participated in that infringement before 9 September 1986 and after3 April 1992. 3.15. Valenciana 4343. Valenciana manifested its accession to the Cembureau agreement through ameasure which implemented that agreement, namely the concerted practice withinthe framework of the EPC (Article 6 of the contested decision), which, inValenciana's case, constitutes an infringement of Article 85(1) of the Treaty from1 January 1986 to 13 May 1987 (see paragraph 4005 above). 4344. In the absence of any evidence that Valenciana continued to participate in theCembureau agreement after it had ceased to participate in that single implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 1 January 1986 to 13 May 1987. 4345. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Valenciana participated in that infringement after 13 May 1987. 3.16. BCA 4346. BCA, which must be held responsible for the conduct of CMF (see paragraph 1341above), participated in the Head Delegates meetings of 14 January 1983 and 19March and 7 November 1984 (see paragraphs 1344, 1345, 1350 and 1352 above). It also participated in two measures which implemented the Cembureau agreement. 4347. Thus BCA participated in the specific exchanges of information (contested decision,Article 2(1)) between 14 January 1983 and 19 March 1984 and the periodicexchanges of information (contested decision, Article 2(2)) between 1 January 1984and 31 December 1988 (see paragraph 1817 above). 4348. In the absence of any evidence that BCA continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 14 January 1983 to 31 December 1988. 4349. Article 1 of the contested decision must therefore be annulled in so far as it findsthat BCA participated in that infringement after 31 December 1988. 3.17. Asland 4350. The Court has already held that the Commission was not entitled to fix the startingdate of Asland's participation in the infringement referred to in Article 1 of thecontested decision at a date before 28 May 1986 (see paragraph 4267 above). 4351. Asland manifested its accession to the Cembureau agreement through a singlemeasure which implemented that agreement, namely the agreement on the setting-up of the ETF (contested decision, Article 4(1)), in which it participated between28 May 1986 and 31 May 1987 (see paragraphs 2690 and 2806 above). 4352. In the absence of any evidence that Asland continued to participate in theCembureau agreement after it had ceased to participate in that single implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 28 May 1986 to 31 May 1987. 4353. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Asland participated in that infringement before 28 May 1986 and after 31 May1987. 3.18. Uniland 4354. The Court has already held that the Commission was not entitled to fix the startingdate of Uniland's participation in the infringement referred to in Article 1 of thecontested decision at a date before 9 September 1986 (see paragraphs 4264 and4267 above). 4355. Uniland manifested its accession to the Cembureau agreement through a numberof measures which implemented that agreement. 4356. Thus it participated in the agreement on the setting-up of the ETF (contesteddecision, Article 4(1)) between 9 September 1986 and 31 May 1987 (seeparagraphs 2699 and 2806 above), in the agreement on the setting-up ofInterciment (contested decision, Article 4(2)) between 9 September 1986 and 7November 1988 (see paragraphs 3073 and 3097 above) and in the concertedpractices designed to withdraw Calcestruzzi as a customer from the Greekproducers, and from Titan in particular (contested decision, Article 4(3)(a)),between 9 September 1986 and 15 March 1987 (see paragraphs 3204, 3205 and3301 to 3305 above). 4357. In the absence of any evidence that Uniland continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 9 September 1986 to 7 November 1988. 4358. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Uniland participated in that infringement before 9 September 1986 and after7 November 1988. 3.19. Oficemen 4359. Oficemen participated in the Head Delegates meetings of 14 January 1983 and 19March 1984 (see paragraphs 1344, 1345 and 1350 above). It also participated ina number of measures which implemented the Cembureau agreement. 4360. Thus it participated in the periodic exchanges of information (contested decision,Article 2(2)) within the framework of Cembureau between 1 January 1986 and 31December 1988 (see paragraph 1817 above). It participated in the Hispano-Portuguese agreement between 1 January 1986 and 24 April 1989 (see paragraph2132 above). It also participated in a number of measures within the frameworkof the single agreement relating to the ETF (contested decision, Article 4(1) to(3)(a)) between 9 June 1986 and 7 November 1988 (see paragraphs 2720, 2806,3030, 3097, 3239, 3240 and 3301 to 3305 above). 4361. In the absence of any evidence that Oficemen continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the infringement referred to in Article 1 ofthe contested decision has been established from 1 January 1986 (see paragraphs4226 to 4231 above) to 24 April 1989. 4362. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Oficemen participated in that infringement after 24 April 1989. 3.20. Irish Cement 4363. Irish Cement participated in the Head Delegates meetings of 14 January 1983 and19 March and 7 November 1984 (see paragraphs 1344, 1345, 1350 and 1352 above). It also participated in a number of measures which implemented the Cembureauagreement. 4364. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) between 14 January 1983 and 19 March 1984 and the periodicalexchanges of information (contested decision, Article 2(2)) between 1 January 1984and 31 December 1988 (see paragraph 1817 above). It also participated in anumber of measures within the framework of the single agreement relating to theETF (contested decision, Article 4(1) and (3)(a)) between 9 September 1986 and31 May 1987 (see paragraphs 2737, 2806, 3204, 3205 and 3301 to 3305 above). 4365. In the absence of any evidence that Irish Cement continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 14 January 1983 to 31 December 1988. 4366. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Irish Cement participated in that infringement after 31 December 1988. 3.21. Cimpor 4367. Cimpor manifested its accession to the Cembureau agreement through a measurewhich implemented that agreement, namely the Hispano-Portuguese agreement(contested decision, Article 3(2)), which has been found to have constituted aninfringement from 1 January 1986 to 24 April 1989 (see paragraph 2132 above). 4368. In the absence of any evidence that Cimpor continued to participate in theCembureau agreement after it had ceased to participate in that one implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 1 January 1986 to 24 April 1989. 4369. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Cimpor participated in that infringement after 24 April 1989. 3.22. SECIL 4370. SECIL manifested its accession to the Cembureau agreement through a measurewhich implemented that agreement, namely the Hispano-Portuguese agreement(contested decision, Article 3(2)), which has been found to have constituted aninfringement from 1 January 1986 to 24 April 1989 (see paragraph 2132 above). 4371. In the absence of any evidence that SECIL continued to participate in theCembureau agreement after it had ceased to participate in that one implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 1 January 1986 to 24 April 1989. 4372. Article 1 of the contested decision must therefore be annulled in so far as it findsthat SECIL participated in that infringement after 24 April 1989. 3.23. ATIC 4373. ATIC participated in the Head Delegates meetings of 14 January 1983 and 19March and 7 November 1984 (see paragraphs 1344, 1345, 1350 and 1352 above). It also participated in a measure which implemented the Cembureau agreement. 4374. Thus it participated in the periodic exchanges of information (contested decision,Article 2(2)) between 1 January 1986 and 31 December 1988 (see paragraph 1817above). 4375. In the absence of any evidence that ATIC continued to participate in theCembureau agreement after it had ceased to participate in that one implementingmeasure, its continuous participation in the infringement referred to in Article 1 ofthe contested decision has been established from 1 January 1986 (see paragraphs4226 to 4231 above) to 31 December 1988. 4376. Article 1 of the contested decision must therefore be annulled in so far as it findsthat ATIC participated in that infringement after 31 December 1988. 3.24. Italcementi 4377. The Court has already held that the Commission was not entitled to fix the startingdate of Italcementi's participation in the infringement referred to in Article 1 of thecontested decision at a date before 19 March 1984 (see paragraph 4225 above). 4378. As regards the continuous nature of Italcementi's participation in the Cembureauagreement, it must be pointed out that Italcementi participated in the HeadDelegates meeting of 19 March 1984 (see paragraph 1351 above). It alsoparticipated in a number of measures which implemented the Cembureauagreement. 4379. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) on 19 March 1984 and the periodic exchanges of information(contested decision, Article 2(2)) between 19 March 1984 and 31 December 1988(see paragraph 1817 above). It also participated in the agreement on the setting-up of the ETF (contested decision, Article 4(1)) between 28 May 1986 and 31 May1987 (see paragraphs 2747 and 2806 above), in the agreement on the setting-up ofInterciment (contested decision, Article 4(2)) between 9 June 1986 and 7November 1987 (see paragraphs 3017 and 3097 above), in the concerted practicesdesigned to withdraw Calcestruzzi as a customer from the Greek producers, andfrom Titan in particular (contested decision, Article 4(3)(a)), between 17 June 1986and 15 March 1987 (see paragraphs 3270 and 3301 to 3305 above) and also in theagreement with Unicem and Cementir relating to the contracts and agreementssigned on 3 and 15 April 1987 having as their aim the prevention of imports ofGreek cement by Calcestruzzi (contested decision, Article 4(3)(b)) between 3 April1987 and 3 April 1992 (see paragraph 3396 above). 4380. In the absence of any evidence that Italcementi continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 19 March 1984 to 3 April 1992. 4381. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Italcementi participated in that infringement before 19 March 1984 and after3 April 1992. 3.25. Holderbank 4382. Holderbank manifested its accession to the Cembureau agreement through anumber of measures which implemented that agreement. 4383. Thus it participated in the agreement on the setting-up of the ETF (contesteddecision, Article 4(1)) between 28 May 1986 and 31 May 1987 (see paragraphs2783 and 2806 above), in the agreement on the setting-up of Interciment (contesteddecision, Article 4(2)) between 9 June 1986 and 7 November 1988 (see paragraphs3081 and 3097 above) and also in the concerted practices designed to withdrawCalcestruzzi as a customer from the Greek producers, and from Titan in particular(contested decision, Article 4(3)(a)), between 17 June 1986 and 15 March 1987 (seeparagraphs 3275 and 3301 to 3305 above). 4384. In the absence of any evidence that Holderbank continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 28 May 1986 to 7 November 1988. 4385. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Holderbank participated in that infringement after 7 November 1988. 3.26. Hornos Ibéricos 4386. According to the contested decision, Hornos Ibéricos manifested its accession tothe Cembureau agreement through a measure which implemented that agreement,namely the concerted practice within the framework of the EPC (Article 6 of thecontested decision), which constituted an infringement by Hornos Ibéricos ofArticle 85(1) of the Treaty between 1 January 1986 and 19 May 1989 (seeparagraphs 3975 and 3980 above). 4387. It follows that Hornos Ibéricos must be held to have participated continuously inthe Cembureau agreement from 1 January 1986 to 19 May 1989. 4388. In its rejoinder the Commission emphasised Hornos Ibéricos's involvement inInterciment in order to show the duration of its participation in the Cembureauagreement. However, Hornos Ibéricos is not among the undertakings andassociations of undertakings referred to in Article 4(2) of the contested decision. In any event, since that article must be annulled in so far as it finds that there wasan infringement of Article 85(1) of the Treaty after 7 November 1988, anyparticipation by Hornos Ibéricos in the agreement on the setting-up of Intercimentwould not be capable of showing that it continued to participate in the Cembureauagreement after it had ceased to participate in the infringement referred to inArticle 6 of the contested decision. 4389. In the absence of any evidence that Hornos Ibéricos continued to participate in theCembureau agreement after it had ceased to participate in the concerted practicewithin the framework of the EPC, Article 1 of the contested decision must beannulled in so far as it finds that Hornos Ibéricos participated in that infringementafter 19 May 1989. 4390. The applicant's argument that the Commission disregarded the rules of evidenceby fixing the end of the reference period for the calculation of fines at 26 March1993, when it had no evidence that the unlawful activities continued after 19 May1989, is thus devoid of purpose. 3.27. Aker 4391. Aker participated in the Head Delegates meetings of 14 January 1983 and 19March 1984 (see paragraphs 1344, 1345 and 1350 above). It also participated ina number of measures which implemented the Cembureau agreement. 4392. Thus it participated in the agreement on the setting-up of the ETF (contesteddecision, Article 4(1)) between 9 June 1986 and 31 May 1987 (see paragraphs 2764and 2806 above), in the agreement on the setting-up of Interciment (contesteddecision, Article 4(2)) between 9 June 1986 and 7 November 1988 (see paragraphs3017 and 3097 above) and also in the concerted practices designed to withdrawCalcestruzzi as a customer from the Greek producers, and from Titan in particular(contested decision, Article 4(3)(a)), between 9 September 1986 and 15 March1987 (see paragraphs 3281, 3282 and 3301 to 3305 above). 4393. In the absence of any evidence that Aker continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, it must be held to have participated continuously in the infringementreferred to in Article 1 of the contested decision from 9 June 1986 (see paragraph4242 above) to 7 November 1988. 4394. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Aker participated in that infringement after 7 November 1988. 3.28. EUROC 4395. EUROC participated in the Head Delegates meetings of 14 January 1983 and 19March and 7 November 1984 (see paragraphs 1344, 1345, 1350 and 1352 above). It also participated in a number of measures which implemented the Cembureauagreement. 4396. Thus it participated in the agreement on the setting-up of the ETF (contesteddecision, Article 4(1)) between 9 June 1986 and 31 May 1987 (see paragraphs 2764and 2806 above), in the agreement on the setting-up of Interciment (contesteddecision, Article 4(2)) between 9 June 1986 and 7 November 1988 (see paragraphs3017 and 3097 above) and also in the concerted practices designed to withdrawCalcestruzzi as a customer from the Greek producers, and from Titan in particular(contested decision, Article 4(3)(a)), between 9 September 1986 and 15 March1987 (see paragraphs 3281, 3282 and 3301 to 3305 above). 4397. In the absence of any evidence that EUROC continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, it must be held to have participated continuously in the infringementreferred to in Article 1 of the contested decision from 9 June 1986 (see paragraph4242 above) to 7 November 1988. 4398. Article 1 of the contested decision must therefore be annulled in so far as it findsthat EUROC participated in that infringement after 7 November 1988. 3.29. Cementir 4399. Cementir participated in the Head Delegates meetings of 14 January 1983 and 7November 1984 (see paragraphs 1344, 1345 and 1352 above). It also participatedin several measures which implemented the Cembureau agreement. 4400. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) on 14 January 1983 and the periodic exchanges of information(contested decision, Article 2(2)) between 1 January 1984 and 31 December 1988(see paragraph 1817 above). It also participated in the concerted practicesdesigned to withdraw Calcestruzzi as a customer from the Greek producers, andfrom Titan in particular (contested decision, Article 4(3)(a)), between 9 September1986 and 15 March 1987 (see paragraphs 3289, 3290, 3301 to 3304 and 3306 above)and also in the agreement with Unicem and Italcementi relating to the contractsand agreements signed on 3 and 15 April 1987 having as their aim the preventionof imports of Greek cement by Calcestruzzi (contested decision, Article 4(3)(b))between 3 April 1987 and 3 April 1992 (see paragraph 3395 above). 4401. In the absence of any evidence that Cementir continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 14 January 1983 to 3 April 1992. 4402. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Cementir participated in that infringement after 3 April 1992. 3.30. Blue Circle 4403. The Court has already held that the Commission was not entitled to fix the startingdate of Blue Circle's participation in the infringement referred to in Article 1 of thecontested decision at a date before 18 November 1983 (see paragraphs 4266 and4267 above). 4404. Blue Circle manifested its accession to the Cembureau agreement through anumber of measures which implemented that agreement. 4405. Thus it participated in the agreement on the setting-up of the ETF (contesteddecision, Article 4(1)) between 28 May 1986 and 31 May 1987 (see paragraphs2783 and 2806 above), in the agreement on the setting-up of Interciment (contesteddecision, Article 4(2)) between 9 June 1986 and 7 November 1988 (see paragraphs 3081 and 3097 above) and in the concerted practices designed to withdrawCalcestruzzi as a customer from the Greek producers, and from Titan in particular(contested decision, Article 4(3)(a)), between 17 June 1986 and 15 March 1987 (seeparagraphs 3298, 3301 and 3307 to 3310 above). It also participated in theconcerted practice within the framework of the EPC between 18 November 1983and 12 October 1987 (see paragraphs 3973 to 3980 above). 4406. In the absence of any evidence that Blue Circle continued to participate in theCembureau agreement after it had ceased to participate in the last implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 18 November 1983 to 7 November 1988. 4407. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Blue Circle participated in that infringement before 18 November 1983 andafter 7 November 1988. 3.31. AGCI 4408. AGCI participated in the Head Delegates meetings of 14 January 1983 and 19March and 7 November 1984 (see paragraphs 1344, 1345, 1350 and 1352 above). It also participated in two measures which implemented the Cembureau agreement. 4409. Thus it participated in the specific exchanges of information (contested decision,Article 2(1)) between 14 January 1983 and 19 March 1984 and in the periodicexchanges of information (contested decision, Article 2(2)) between 1 January 1984and 31 December 1988 (see paragraph 1817 above). 4410. It follows that AGCI must be held to have participated continuously in theCembureau agreement from 14 January 1983 to 31 December 1988. 4411. AGCI maintains that the Greek industry's conduct on the market was completelyincompatible with any participation in the Cembureau agreement. It observes thatuntil 1985 its sole reason for participating in Cembureau was to obtain information:on the one hand, AGCI's members were not present on the Community market atthat time, since their export outlets were in the Middle East; on the other hand, theextremely low price levels pertaining on its market were in themselves an obstacleto imports of cement into its market, so that it had no interest whatsoever inparticipating in an agreement which restricted competition. As regards the periodafter 1985, AGCI claims that the spectacular increase in its members' exports tothe Community markets, as a result of which they became victims of collectiveretaliatory measures by the main European producers through the ETF, shows thatthe conduct of the Greek industry did not show its alleged participation in theCembureau agreement. In conclusion, AGCI claims that throughout the period inissue its members acted in a way that was dictated solely by economic and commercial considerations and in all respects consistent with the requirements ofthe international market. 4412. However, those explanations to not make it possible to ignore AGCI's continuousparticipation in the Cembureau agreement from 14 January 1983 to 31 December1988. AGCI refers only to the commercial conduct adopted by its members andadduces no evidence of having itself sought to distance itself from the Cembureauagreement before 31 December 1988. In any event, by participating in the periodicexchanges of information on prices referred to in Article 2(2) of the contesteddecision, AGCI assured the other participants in the Cembureau agreement of itscontinuing support for the object of that agreement. 4413. In the absence of any evidence that AGCI continued to participate in theCembureau agreement after 31 December 1988, Article 1 of the contested decisionmust be annulled in so far as it finds that AGCI participated in that infringementafter 31 December 1988. 3.32. Halkis 4414. The Court has already held that the Commission was not entitled to fix the startingdate of Halkis's participation in the infringement referred to in Article 1 of thecontested decision at a date before 18 November 1983 (see paragraphs 4265 and4267 above). 4415. Halkis participated in a measure implementing the Cembureau agreement, namelythe concerted practice within the framework of the EPC (Article 6 of the contesteddecision), between 18 November 1983 and 1 September 1986 (see paragraph 3980above). 4416. In the absence of any evidence that Halkis continued to participate in theCembureau agreement after it had ceased to participate in that one implementingmeasure, its continuous participation in the Cembureau agreement must beconsidered to have been established from 18 November 1983 to 1 September 1986. 4417. Article 1 of the contested decision must therefore be annulled in so far as it findsthat Halkis participated in that infringement before 18 November 1983 and after1 September 1986. Infringement of the principle of equal treatment 4418. Vicat and Hornos Ibéricos claim that the fact that some members of SFIC andOficemen are not referred to in the contested decision constitutes discrimination. 4419. Ciments Français, Aker and EUROC maintain that by drawing, for the purposesof the contested decision, a distinction between undertakings according to whetheror not they had implemented the Cembureau agreement the Commission infringedthe principle of non-discrimination. They further maintain that the closure of theproceedings initiated against undertakings which had not adopted measures toimplement the Cembureau agreement was discriminatory. In their view, producerswhich had not made any sales outside their national market should have beendeclared guilty of having adhered to the Cembureau agreement in the most flagrantmanner. Ciments Français also alleges that the Commission's approach wascontradictory. 4420. Asland, Uniland, Cimpor and SECIL also consider that the contested decisiondiscriminates against them, because not all the direct and indirect members ofCembureau were penalised. 4421. Irish Cement claims to have suffered discrimination, in comparison with theundertakings which are indirect members of Cembureau, as regards the conditionsfor attributing liability for the Cembureau agreement. The Commission reliedsolely on its membership of Cembureau in holding it liable for the infringementassociated with that agreement, whereas of the indirect members of Cembureauonly those which, as well as belonging to a national association, had manifestedtheir accession to the Cembureau agreement by participating in the implementingmeasures were held liable for that infringement. 4422. In a plea alleging infringement of Article 190 of the Treaty, Italcementi claims tofind a contradiction in the contested decision between direct participation andindirect participation by the parties to the Cembureau agreement (contesteddecision, recitals 45, paragraph 9, and 65, paragraph 3). It states that the criterionused to determine whether the mere fact of being a member of Cembureau showedthat the undertaking concerned had participated in the Cembureau agreement wasnot applied uniformly. The Commission distinguished between the undertakingswhich participated directly in Cembureau and those which participated throughtheir national trade associations, as the accession of the latter undertakings wasexamined separately in the context of the alleged implementing measures(contested decision, recital 45, paragraph 10). Italcementi does not accept theprinciple that responsibility for any decisions taken by an association can beattributed directly to the members of that association and states that theCommission did not apply that principle uniformly to all the addressees of thecontested decision. 4423. Those arguments must be rejected. The situation of the direct members ofCembureau which participated in one or more Head Delegates meetings at whichthe Cembureau agreement was concluded and/or confirmed is objectively differentfrom that of the indirect members of Cembureau. The participation of the directmembers of Cembureau in the Cembureau agreement is already evident from their participation in the meetings at which the concurrence of wills emerged concerningthe principle of non-transhipment to home markets, whereas the participation ofthe indirect members in the agreement had to be established through theirparticipation in a measure showing their accession to the agreement. 4424. The Court points out that Irish Cement, Italcementi, Aker and EUROC are all direct members of Cembureau and participated directly in the conclusion and/orconfirmation of the Cembureau agreement. The argument put forward by thoseapplicants, which do not claim that any other direct members of Cembureau arenot referred to in the contested decision, must therefore be rejected. 4425. Vicat, Ciments Français, Asland, Uniland, Cimpor, SECIL and Hornos Ibéricos, areindirect members whose participation in the Cembureau agreement was establishedthrough their participation in a measure which implemented that agreement. 4426. In the case of indirect members of Cembureau not referred to in the contesteddecision, whose situation the Court is not required to consider, the Commissionstates that it does not have documentary evidence showing that they in any waymanifested their accession to the Cembureau agreement. 4427. The situation of undertakings not referred to in the contested decision is thereforedifferent from that of Vicat, Ciments Français, Asland, Uniland, Cimpor, SECIL,Hornos Ibéricos and the other indirect members of Cembureau for which theCommission has documentary evidence showing that they participated in theCembureau agreement. The argument must also be rejected in so far as it wasraised by those undertakings. 4428. In any event, even supposing that the situation of some undertakings to which thecontested decision was not addressed was comparable to that of the applicantsconcerned, such a circumstance could not in any event constitute a ground forsetting aside the finding of an infringement by Vicat, Ciments Français, Asland,Uniland, Irish Cement, Cimpor, SECIL, Italcementi, Hornos Ibéricos, Aker andEUROC, provided that it was properly established on the basis of documentaryevidence showing that they participated in the Cembureau agreement (see, in thatregard, judgment in Woodpulp II, cited at paragraph 106 above, paragraph 146). 4429. Blue Circle considers that the Commission acted arbitrarily in taking the view thatagreements to restrict imports involving producers from more than one MemberState manifest accession to the Cembureau agreement, while purely nationalagreements having the same object as the Cembureau agreement were notregarded as measures implementing that agreement. 4430. The Court has already pointed out that the SO included separate chapters relatingto the purely national agreements. However, those national objections were dropped by decision of 23 September 1993 and are therefore not taken up in thecontested decision. 4431. Even supposing that some undertakings to which the contested decision was notaddressed thought that, through their participation in a national agreement orconcerted practice referred to in one of the national chapters of the SO, they wereimplementing the Cembureau agreement, that could not constitute a ground forsetting aside the finding in the contested decision of an infringement by Blue Circle,as that has been properly established (see, in that regard, Woodpulp II, cited atparagraph 106 above, paragraph 146). 4432. Aker and EUROC consider that they suffered discrimination in comparison withthe Spanish and Portuguese undertakings and associations. The latter were notregarded as having infringed Article 85(1) of the Treaty during the period whenthey were not established in the Community. 4433. However, even supposing that at the time the contested decision was adopted Akerand EUROC were in a comparable situation to that of the Spanish and Portugueseaddressees of the contested decision before Spain and Portugal acceded to theCommunity, that could not constitute a ground for setting aside the finding of aninfringement by them as from 9 June 1986, provided that it was properlyestablished (see, in that regard, Woodpulp II, cited at paragraph 106 above,paragraph 146). 4434. Finally, AGCI complains of discrimination resulting from the fact that not all theparticipants in the Head Delegates meeting of 14 January 1983 were penalised fortheir participation in the Cembureau agreement as from that date. It gives theexample of Holderbank, which was penalised for its participation in the Cembureauagreement only as from 28 May 1986, even though Mr Pestalozzi, representing itsBelgian subsidiary Ciments d'Obourg, was present at the meeting. 4435. That argument must be rejected. AGCI is a direct member of Cembureau and,unlike Holderbank, which is an indirect member of Cembureau, it participateddirectly in the conclusion of the Cembureau agreement. Mr Pestalozzi participatedin the Head Delegates meeting of 14 January 1983 not as a representative ofHolderbank but as a representative of FIC. In any event, even supposing thatHolderbank was in a comparable situation to that of AGCI, which has not beenshown to be the case, that could not constitute a ground for setting aside thefinding of an infringement by AGCI as from 14 January 1983, provided that it wasproperly established (see, in that regard, Woodpulp II, cited at paragraph 106above, paragraph 146). Infringement of Article 190 of the Treaty A  Classification of the Cembureau agreement as a single and continuousagreement 4436. SFIC claims that the contested decision fails to demonstrate the single andcontinuous nature of the Cembureau agreement. It claims that the Commissionfailed to establish a connection between the Cembureau agreement and thebilateral and multilateral agreements and concerted practices in which the Frenchundertakings were involved; the mere semblance of an objective connectionbetween the Cembureau agreement and the conduct of the French undertakingscannot suffice for that purpose. It observes that the Franco-German agreement isbased on events which predate the conclusion of the Cembureau agreement, ofwhich it is deemed to be the result. 4437. The Court points out that SFIC's complaints in reality go to the substance of thecontested decision. They are therefore irrelevant in the context of a plea based onArticle 190 of the Treaty. In any event, the connection between the Cembureauagreement and the bilateral or multilateral agreements and concerted practiceswhich have been established is made sufficiently explicit in recital 46 of thecontested decision. 4438. Heidelberger maintains that the contested decision does not explain the conceptof a single and continuous agreement. In any event, it considers that a number ofagreements or arrangements which are all contrary to Article 85(1) of the Treatycannot constitute a 'single agreement. 4439. It argues that the contested decision as also completely incomprehensible in so faras it asserts that the existence of the 'single and continuous agreement may bededuced merely from the 'accession of the producers to the Cembureau principle(contested decision, recital 46, paragraph 1). Accession cannot create anagreement, but assumes that an agreement is already in existence. 4440. Heidelberger maintains that it is contradictory to classify the Cembureau agreementas single and continuous and at the same time to make a finding of infringementin the operative part of the contested decision in respect not only of that 'singleagreement (Article 1 of the contested decision) but also of the various measureswhich implemented that agreement (Articles 2 to 6 of the contested decision). 4441. The Court points out, however, that the Commission clearly explains in recital 46of the contested decision (paragraph 1) why it considered that 'the whole of thearrangements adopted within the framework of Cembureau and the bilateral and/ormultilateral meetings and contacts ... constituted a single and continuousagreement. 4442. Heidelberger's argument that the contested decision is incomprehensible (seeparagraph 4439 above) must also be rejected. The applicant has confused the question of the proof of the existence of the Cembureau agreement and thequestion of the classification of the various arrangements found in the contesteddecision as a single and continuous agreement. The Commission established theexistence of the Cembureau agreement solely on the basis of the directdocumentary evidence analysed in recitals 18, 19 and 45 of the contested decision,not on the basis of the 'measures taken to implement that agreement. In recital46 of the contested decision the Commission, having established that theundertakings in question acceded to the Cembureau agreement by participating inarrangements which pursued the same objective as that agreement, classified thewhole of those arrangements as a single and continuous agreement. The Courtfinds no contradiction or lack of clarity in that approach. 4443. Nor is it contradictory for the Commission to find that the various addressees ofthe contested decision participated in the infringement relating to the single andcontinuous agreement on non-transhipment to home markets established in Article1 of the contested decision and at the same time to describe, in Articles 2 to 6, thevarious unlawful measures whereby, in the Commission's view, that agreement wasapplied (see, in that regard, Commission v Anic, cited at paragraph 270 above,paragraph 81). In any event, it was stated in the contested decision that the variousarrangements referred to in Articles 2 to 6 could be 'regarded as infringements inthemselves (contested decision, recital 46, paragraph 1, first subparagraph). 4444. Italcementi claims that the Commission contradicts itself when it maintains inrecital 53, paragraph 4, of the contested decision that each addressee of thecontested decision was responsible for all the infringements implemented by theparties to the Cembureau agreement, even where they had not actually participatedin them, but finds that some undertakings, including Italcementi, are notresponsible for some infringements, in particular those established in Articles 3 and6 of the contested decision. 4445. The applicant has misread recital 53, paragraph 4, of the contested decision. 4446. That provision refers to participation in the single agreement relating to the ETF,not participation in the Cembureau agreement. Nor does the Commission statethere what Italcementi claims it does. It explains why it considered unfounded theobservations formulated by certain undertakings and associations of undertakingsduring the administrative procedure to the effect that they could not be heldresponsible for the measures examined by the ETF, since they had participatedonly in the meetings of the Head Delegates held at that time and not in themeetings of the ETF and its working subgroups: 'Even if they did not participatein the Task Force meetings, the Task Force consisting of a restricted group, theydid participate in the meetings of the Head Delegates at which the Task Forceproposals were endorsed and the measures adopted. As stated in recital 44, thefact that the composition of the various bodies may vary from one to another doesnot mean that all the activities of the parties to such structure are not attributable to all the members, since the structure acts with and is based on the assistance ofall the members. 4447. It follows that Italcementi's argument must be rejected. B  Participation of the various applicants in the single and continuous Cembureauagreement 4448. CBR maintains that the contested decision fails to state the reasons on which it isbased, or gives contradictory reasons, so that it is unable to ascertain with sufficientprecision the exact nature of the objections made against it and is thus preventedfrom defending itself. 4449. By way of example, it states that the decision:  establishes the existence of an agreement concluded on 14 January 1983 andgives it a specific content, even though there is no documentary evidence ofthe existence and content of that agreement;  accepts as proof of an agreement not to tranship to home marketsconcluded on 14 January 1983 the allegation that a similar principle hadbeen in existence for 30 years;  sees in the existence of alleged bilateral or multilateral relations betweencertain undertakings proof of an agreement linking all the associations whichare members of Cembureau and the members of those associations;  accepts as proof of an agreement concluded on 14 January 1983 certain'established practices and ethics or 'neighbour rules which Cembureauencouraged;  maintains that the associations which are members of Cembureau and themembers of those associations are parties to a Cembureau agreement, sincethey take part in the 'de facto activities of that association;  considers that the purchase of Greek clinker by CBR formed part of theETF's activities, whereas the ETF had been dissolved a year earlier;  considers that cooperation on exports outside the Community is contrary toArticle 85 of the Treaty, without examining the actual effects which thatcooperation might have on the Community market. 4450. The Court points out, however, that the various illustrations which CBR putsforward in support of its plea are in reality arguments which go to the substance, which have already been examined when the Court assessed the merits of thecontested decision. 4451. Cembureau and SFIC find a contradiction in the grounds of the contested decisionin that they are found to have participated in the Cembureau agreement andvarious alleged measures taken to implement that agreement but not ordered tobring the infringements to an end. 4452. The Court points out that under Article 3(1) of Regulation No 17 (see paragraph2 above), where the Commission finds that there is an infringement of Article 85(1) of the Treaty 'it may by decision require the undertakings or associations ofundertakings concerned to bring such infringement to an end. Since theCommission is thus under no obligation to do so, the applicants cannot claim thatit is contradictory for it to find that they participated in the Cembureau agreementand in measures taken to implement that agreement but not to order them to bringthose infringements to an end. The argument must therefore be rejected. 4453. SFIC, Ciments Français, Vicat and Irish Cement consider that the reasoning onwhich the Commission bases Article 1 of the contested decision is contradictory, inthat it is based on the assumption that any undertaking belonging to a nationalassociation involved in the conclusion of the Cembureau agreement was bound bythat agreement, whereas ultimately only the undertakings which played a direct partin the conclusion of that agreement and those which manifested their accession tothe agreement in the form of specific actions were penalised. 4454. That argument is based on a misreading of the contested decision. In the contesteddecision the Commission did not find that indirect members of Cembureau notreferred to in the contested decision had participated in the Cembureau agreement,even though it considered that such participation was likely 'since the agreementwas acceded to by the Head Delegates, who are ranked on a par with governmentrepresentatives on international bodies ... and are appointed in order to castvotes in the General Assembly (contested decision, recital 45, paragraph 5). Having regard to the burden of proof which it bears, the Commission properlyconsidered that it could not find that the indirect members of Cembureau hadparticipated in the infringement unless it was established that they had clearlymanifested their accession to the Cembureau agreement by participating in ameasure implementing that agreement. The Court finds no contradiction in thatapproach. 4455. Heidelberger maintains that the Commission contradicts itself where it states thatHeidelberger took part indirectly in the Cembureau agreement and also that itacceded to it. 4456. However, since Heidelberger did not participate directly in the Head Delegatesmeetings at which the Cembureau agreement was concluded and confirmed, it is by no means contradictory to consider that it participated indirectly in thatagreement through its participation in measures implementing it (contesteddecision, recital 45, paragraph 10, and recital 65, paragraph 3, first subparagraph). 4457. Heidelberger also claims that in the contested decision the Commission does notclearly state whether Heidelberger is accused of direct participation or of indirectparticipation through measures implementing the Cembureau agreement. 4458. That argument must also be rejected. In recital 45, paragraph 10, of the contesteddecision Heidelberger is among the undertakings found to have 'participatedindirectly in the [Cembureau] agreement, through their participation in the variousarrangements and measures agreed on to supplement the general agreement and/orassist in its implementation. 4459. Dyckerhoff, Aalborg, Asland, Irish Cement, Holderbank and Blue Circle criticisethe Commission for failing to take account in the contested decision of the variousobservations which they had submitted during the administrative procedure. 4460. The Court points out once more that the Commission is not required to providein the decision a detailed answer to all the arguments formulated during theadministrative procedure by the various addressees of the SO. It is sufficient thatthe statement of reasons allows the Community judicature to exercise its power ofreview as to the legality of the contested decision and provides the undertakingsand associations concerned with the necessary information to be able to determinewhether or not the decision is well founded (judgments cited at paragraph 846above, VBVB and VBBB v Commission, paragraph 22, BAT and Reynolds vCommission, paragraph 72, and La Cinq v Commission, paragraph 42). It isapparent from the Court's assessment of the merits of the finding of infringementmade in Article 1 of the contested decision that the statement of reasons gave theCourt and the applicants sufficient indication of the principal points of fact and lawwhich constituted the basis for the reasoning which led the Commission to hold theapplicants concerned responsible for that infringement (see, to that effect, Case T-111/96 ITT Promedia v Commission [1998] ECR II-2937, paragraph 81). Theargument must therefore be rejected. 4461. BCA claims that the Commission did not explain how the fact that BCA no longerprovided information to Cembureau after 1985 could be reconciled with theconclusion that BCA had subscribed to the principle of non-transhipment to homemarkets, when the Commission had been convinced in the SO that the provisionof information on prices and accession to the Cembureau principle were closelylinked. 4462. In the contested decision (recital 45, paragraph 12) the Commission states thatBCA, 'which has been a member of Cembureau since 1 June 1988, is alsoresponsible ... for the conduct of the former Cembureau member, [CMF]. The Commission's conclusion that BCA participated in the Cembureau agreement isbased on its membership of Cembureau and its participation in the Head Delegatesmeetings at which the agreement was adopted and confirmed (contested decision,recitals 45, paragraphs 1 and 10, and 65, paragraph 3(a)) for a period which theCommission is not certain ever ceased (contested decision, recital 65, paragraph 4). BCA's complaint alleging failure to state reasons on that point must be rejected. 4463. Aker and EUROC claim that the contested decision does not contain an adequatestatement of reasons concerning the Commission's competence ratione territoriaein the case of undertakings established outside the Community. The Commissionshould have expressly stated the reasons which led it to declare itself competent toapply Article 85(1) of the Treaty to Aker and EUROC. 4464. The Court points out that the Commission states in recital 65, paragraph 4, of thecontested decision that in the case of those two applicants it deems theinfringement to have started on 9 June 1986 because it has no evidence that theirparticipation in the Cembureau agreement had any effect within the Communitybefore that date. 4465. That statement of reasons is sufficient, because the application of Article 85(1) ofthe Treaty to Aker and EUROC had been part of the Commission's previouspractice when adopting decisions, a practice which, moreover, had been approvedby the Court of Justice in the judgment in Woodpulp I, cited at paragraph 1325above (see, in that regard, Case 73/74 Groupement des Fabricants de Papiers Peintsde Belgique and Others v Commission [1975] ECR 1491, paragraph 31). 4466. AGCI criticises the Commission for its failure to explain the criteria which it usedto determine which participants in the Head Delegates meeting of 14 January 1983were to be regarded as parties to the Cembureau agreement. It also findsinconsistency between the statement of reasons and the operative part of thecontested decision. The Commission held AGCI and its members responsible foran alleged restriction of trade within the Community, whereas their conduct would,upon examination, have revealed a considerable contribution to that trade, whichled to the forming of a coalition of the principal European cement producersagainst AGCI and its members. 4467. Those arguments must be rejected. It follows from recitals 19 and 45 of thecontested decision that the Commission attributed the infringement to AGCI on thebasis of its membership of Cembureau and its presence at the Head Delegatesmeetings at which the Cembureau agreement was concluded and confirmed. TheCommission was not required to state its reasons for not attributing thatinfringement to undertakings or associations of undertakings which were notreferred to in the contested decision. 4468. Furthermore, the Commission explained the reasons for its view that theCembureau agreement, in which AGCI participated, infringed Article 85(1) of theTreaty (contested decision, recitals 45, 46 and 52). The alleged inconsistency towhich AGCI refers essentially merely aims to dispute the substance of theCommission's assessment of the gravity of AGCI's participation in the infringementreferred to in Article 1 of the contested decision. Such an argument, which belongsto an examination of the merits of the contested decision, is irrelevant in thecontext of a plea based on Article 190 of the Treaty. 4469. Halkis complains that there is no correlation between the facts, the legalassessment and the operative part of the contested decision. It analyses the varioussections of the part of the contested decision headed 'The Facts (sections 2 to 7of the contested decision) and concludes that, with the exception of its conductwithin the framework of the EPC, the Commission considers that it is completelyunconnected with the alleged agreements and concerted practices described there. Furthermore, unlike the SO, the contested decision no longer pursues the Greco-Spanish agreement on the setting-up of the CMA, in which Halkis claims not tohave been involved. Examination of the facts presented in the contested decisionalso leads Halkis to consider that the Commission may also have criticised it forparticipating in exchanges of price information within its national association, aswell as at Cembureau level, through its indirect membership of Cembureau. However, Halkis denies ever having exchanged such information at any level,adding that such exchanges of information could not in any event be deemedillegal. Having regard to all the foregoing, Halkis does not understand how theCommission can have held it liable in the context of the Cembureau agreement. 4470. The Court points out that in the contested decision the Commission finds thatHalkis participated only in the infringements referred to in Articles 1 and 6. 4471. In recitals 18 and 19 of the contested decision the Commission clearly sets out thefacts and documents on the basis of which it concluded, in recital 45, paragraphs1 to 3, of the contested decision, that the Cembureau agreement, which it classifiedas a single and continuous agreement in recital 46 of the contested decision, did infact exist. Then, in recitals 30 and 35 to 37 of the contested decision it sets out thefacts and documentary evidence on the basis of which it concluded, in recital 59,that there was, within the framework of the EPC, a continuous concerted practiceof channelling production surpluses to third countries, in respect of which it makesa finding of an infringement in Article 6 of the contested decision, and that Halkisparticipated in that infringement. Finally, it explains in recitals 45, 46 and 65 thatHalkis's participation in the infringement referred to in Article 6 is to be regardedas a manifestation of its accession to the single and continuous Cembureauagreement in respect of which a finding of an infringement is made in Article 1. 4472. It follows that the complaint alleging that there is no correlation between the facts,the legal assessment and the operative part of the contested decision must berejected. 4473. Last, Halkis claims that in 1988, when the Commission accuses it in the SO ofparticipating in an overall agreement with the other European cement producers,it was at the same time initiating a proceeding relating to the grant of State aid(Commission Decision 91/144/EEC of 2 May 1990 on aid granted by the Greekgovernment to a cement manufacturer (Halkis Cement Company) (OJ 1991 L 73,p. 27)), in which the Commission complained that Halkis was attempting to enterother Community markets. Halkis criticises the Commission for failing to explainthat ambivalent attitude, by reason of which it has been penalised both for havingallegedly restricted competition on the Community markets and for havingattempted to enter those markets. 4474. Halkis's argument has become devoid of purpose, since the Court has held that theCommission has not established that it participated in the Cembureau agreementafter 1 September 1986 (see paragraph 4417 above). In any event, contrary towhat Halkis asserts, Decision 91/144 never complained of its attempts to enter theCommunity markets. In that decision the Commission merely ruled on the legalityof the aid which the Geek Government had granted to Halkis. The Court finds nocontradiction in the fact that the Commission criticised an undertaking forparticipating in a European agreement and at the same time initiated a proceedingagainst a Member State concerning the grant of illegal State aid to thatundertaking. Infringement of the rights of the defence when the applicants were given access to thefile 4475. The arguments whereby the parties concerned allege infringement of their rightsof defence when they were given access to the file have to a large extent alreadybeen examined. 4476. Thus all the arguments alleging inadequate access to the incriminating evidence inthe investigation file which the Commission used to support its finding of theinfringement referred to in Article 1 of the contested decision have been examinedin paragraphs 1111, 1112 and 1429 to 1431 above. 4477. As regards allegedly exculpatory evidence, the various arguments whereby theapplicants concerned allege that they were not given access during theadministrative procedure to documents in the file which would have been of use totheir defence against the objection concerning the existence of the Cembureauagreement have been examined in paragraphs 1113 to 1295 above. Furthermore,Cembureau's and Cementir's arguments alleging that they had insufficient access to the documents in the case-file relating to their participation in the infringementreferred to in Article 1 of the contested decision have been examined in paragraphs1432 to 1438 above. 4478. The Court must still examine, first, the arguments which various indirect membersof Cembureau and Unicem formulated in the observations which they lodgedfollowing the measures of 2 October 1996 and 18 and 19 June 1997 (seeparagraphs 164 and 168 above), in which they allege that they had insufficientaccess to the documents in the case-file relating to their participation in theinfringement referred to in Article 1 of the contested decision, and, second, thearguments of certain direct and indirect members of Cembureau alleging that theyhad insufficient access to the documents in the case-file relating to the single andcontinuous nature of the Cembureau agreement. A  Case T-25/95 CBR v Commission 4479. In its observations of 12 November 1997 CBR puts forward a number of documentswhich allegedly show that the observations made by Mr Van Hove at the HeadDelegates meeting of 14 January 1983 were in keeping with a general desire to finda solution to the problems facing the cement industry in compliance with Europeancompetition rules. It refers to three internal memoranda from Lafarge. The firstis dated 16 June 1982 (document 33.126/6962) and states that CBR refused to'twist [the] necks of the German independents which were exerting strongpressure on its market. The second is dated 1 December 1982 (documents 33.126/6696) and states that Mr Van Hove seems to attach too much importanceto what the Community says. The third is dated 14 January 1984 (document33.126/7452) and states that the Belgians and Dutch are the most European. 4480. The Court points out, however, that those documents do not establish a breach ofCBR's rights of defence. They are not of such a nature as to shed a different lighton the specific documentary evidence on which the Commission relied in the SOand in the contested decision in finding that the Cembureau agreement existed(SO, points 9 and 61(a); contested decision, recitals 18, 19 and 45) and that CBRparticipated in that agreement by participating in measures adopted within theframework of the single agreement relating to the ETF (SO, points 16 to 19, 59and 61(h); contested decision, recitals 24 to 27, 29, 45, paragraph 10, 46, 53 to 55,57 and 65, paragraph 3). 4481. As regards the Lafarge memorandum of 16 June 1982 (document 33.126/6962), theexistence of German imports into Belgium in a specific case is not of such a natureas to shed a different light on the specific documentary evidence of the existenceof the Cembureau agreement (see paragraph 1140 above). Furthermore, the factthat CBR did not act to stop imports from independent German undertakings doesnot in any way show that CBR did not comply with its obligations under the Cembureau agreement. The object of the agreement is limited to non-transhipment to home markets and the regulation of sales of cement from onecountry to another by the participants in the Cembureau agreement. Consequently,access during the administrative procedure to the Lafarge internal memorandumof 16 June 1982 (document 33.126/6962), which also predates the conclusion of theCembureau agreement, could have made no difference to the outcome of theadministrative procedure. 4482. As regards the Lafarge internal memorandum of 1 December 1982 (document33.126/6966), it is important to place the extract to which CBR refers in its originalsentence: 'He [Mr Van Hove] seems to attach too much importance to what theEEC says; is this because of proximity or rather with an idea at the back of hismind: to unlock the borders without being denounced by the trade as the instigatorof disorder. Far from demonstrating conduct differing from that in respect ofwhich CBR is criticised in the contested decision, the memorandum in questiontends to confirm, on the contrary, that even in December 1982 CBR was acting inaccordance with a rule which was subsequently adopted in the context of theCembureau agreement. Access to that memorandum during the administrativecould have made no difference to the outcome of the administrative procedure. 4483. Nor, finally, is the internal memorandum of 14 January 1984 (document33.126/7452), which includes the remark 'Belges et Holl. les + européens, of sucha nature as to shed a different light on the specific documentary evidence on whichthe Commission relied in the SO to establish that CBR participated in theCembureau agreement through its participation in measures implementing thatagreement within the framework of the single agreement relating to the ETF. Theabove remark is brief, not accompanied by any explanation, and does not refer tospecific conduct of CBR. B  Case T-30/95 FIC v Commission 4484. In its observations of 20 January 1998 FIC relies on a document dealing with thebusiness plan of the Netherlands company ENCI for 1989-1991 (documents33.126/732 to 735), which shows that when ENCI was faced with imports frommarkets in southern Europe the sole reaction which it envisaged was an effort toincrease productivity in order to improve its competitiveness as against thoseimports. FIC considers that if the alleged Cembureau agreement on non-transhipment to home markets had existed it is more likely that ENCI would haveenvisaged attempting to remind the 'guilty parties of their alleged obligations. 4485. The Court points out, first, that that argument has become devoid of purpose, sinceit has been established (see paragraphs 4077 to 4079 above) that the Commissionhas failed to show to the requisite standard that ENCI participated in theCembureau agreement. Furthermore, the document relates to a period (1989 to 1991) after that during which FIC has been found to have unlawfully participatedin the Cembureau agreement (see paragraph 4296 above). In any event, the factthat the ENCI document (documents 33.126/732 to 735) contains no reference tothe Cembureau principle or to the European cement producers' obligations underthat agreement is not of such a nature as to shed a different light on the specificdocumentary evidence on which the Commission relied in concluding that theCembureau agreement existed and that FIC participated in that agreement (SO,points 9 and 61(a); contested decision, recitals 18, 19 and 45). C  Case T-37/95 Vicat v Commission 4486. In its observations of 10 February 1997 Vicat emphasises, first, the absence ofstructural links between Buzzi and Cembureau. Thus, it observes that documents 33.126/2945 to 1951 show that the problems raised by the Greek and Yugoslavexports were examined by the Italian cement producers among themselves, withoutCembureau's assistance being sought. The documents in question make noreference to Cembureau. Vicat also claims that the sections of the SO devoted toItaly (sections 3 and 13) and documents 33.126/2945 to 2951 establish that Buzzidid not take part in the setting-up of SIPAC, a company governed by Italian lawwhich allegedly served as a joint intermediary for a number of Italian cementproducers for the purpose of supplying cement to Calcestruzzi. 4487. Vicat also relies on documents 33.126/2929 to 2931 and 3150 to 3154 to emphasiseBuzzi's isolated position in relation to its national competitors, since Buzziexpressed its active opposition to an agreement with Italcementi, Unicem andCementir. Buzzi's conduct as an irregular on the Italian market also shows that ithad little inclination to join in agreements or concerted practices, especially witha foreign undertaking such as Vicat. 4488. The Court points out, however, that both in the SO (points 9 and 61(a)) and in thecontested decision (recitals 18, 19 and 45) the Commission relied on specificdocumentary evidence in order to establish that the Cembureau agreement existed. The same applies to the concerted action between Vicat and Buzzi (SO, points 10and 61(b); contested decision, recitals 20, paragraphs 5 to 7, and 48). Accordingto the Commission, the Franco-Italian concerted practice referred to in Article3(1)(c) of the contested decision constituted, on Vicat's part, a manifestation of itsaccession to the Cembureau agreement. The Commission relies in that regard onthe identity of object between the Cembureau agreement and the Franco-Italianconcerted practice and on the circumstance that Vicat, as an indirect member ofCembureau, was necessarily aware that its conduct implemented the Cembureauagreement (contested decision, recitals 46 and 48). The Commission did not relyin the SO and in the contested decision on the existence of structural links betweenBuzzi and Cembureau in order to show that Vicat had participated in theCembureau agreement and the Franco-Italian concerted practice. To the contrary, in recital 48, paragraph 2, of the contested decision it expressly stated: 'It is truethat Buzzi is not a member of Cembureau, but it is also true that the three Frenchproducers in question [Vicat, Ciments Français and Lafarge] are indirectly membersthrough their national association. Even though Buzzi was not a member ofCembureau, it applied the agreement through its contacts with the Frenchproducers, who were linked to Cembureau. Therefore if during the administrativeprocedure Vicat had been able, on the basis of the documents referred to inparagraphs 4486 and 4487 above, to demonstrate that there was no structural linkbetween Buzzi and Cembureau, that could not have altered the outcome of theadministrative procedure. Furthermore, the fact that there is no reference to theCembureau agreement or to Cembureau in those documents, and Buzzi's specificposition on the Italian market as disclosed in those documents, are not of such anature as to shed a different light on the specific documentary evidence on whichthe Commission relied in the SO and the contested decision to establish that Vicatparticipated in the Cembureau agreement through its participation in an unlawfulconcerted action with Buzzi (SO, points 10, 59 and 61(b); contested decision,recitals 20, paragraphs 5 to 7, 45, paragraph 10, 46, 48 and 65, paragraph 3). 4489. Second, Vicat refers to a number of documents which, it maintains, show that it didnot participate indirectly in Cembureau's activities. It observes that there aredocuments which show that Oficemen's representatives in Cembureau wereappointed and authorised by the board of directors of that association (documents33.322/1334 to 1346 and 1348 to 1353) and that CMF's representatives inCembureau were also appointed by their association (documents 33.126/17073 to17075 and 17199 to 17202). The fact that there are no documents of that typerelating to SFIC's representatives indicates that the Commission does not have thenecessary evidence to establish that Vicat participated, even indirectly, inCembureau. 4490. That argument must be rejected. The Commission has never claimed that Vicat'sparticipation in the Cembureau agreement was based on evidence that a particularnational delegate had been appointed. To the contrary, proof of Vicat'sparticipation in the Cembureau agreement relies, both in the SO (points 10, 59 and61(b)) and in the contested decision (recitals 45, paragraph 10, 46, 48 and 65,paragraph 3), on its participation in a measure implementing that agreement. 4491. Third, Vicat refers to documents to show that there is no link between theHispano-Portuguese agreement and the Cembureau agreement. It maintains thatdocuments 33.322/1406 to 1408 and 1410 to 1412 would have enabled it to showthat Cembureau was not involved in the bilateral relations between cementproducers, even where those relations went to the extent of drawing up anagreement to restrict exports. It emphasises that there is no reference toCembureau or a Cembureau principle in those documents. Furthermore, it statesthat the exchanges which it had with Buzzi were much less frequent and lessspecific than those between Spanish and Portuguese cement producers. 4492. That argument must also be rejected. The existence of a bilateral agreementbetween Spanish and Portuguese producers was not used by the Commission toestablish Vicat's participation in the Cembureau agreement. That participation isbased, both in the SO and in the contested decision, on Vicat's participation in aconcerted practice with Buzzi, which constituted, on Vicat's part, theimplementation of the Cembureau agreement. Documents 33.322/1406 to 1408 and1410 to 1412 on the Hispano-Portuguese agreement cannot therefore shed adifferent light on the specific documentary evidence used in the SO and in thecontested decision to establish the reality of the concerted practice between Vicatand Buzzi and Vicat's participation in the Cembureau agreement (SO, points 10,59 and 61(b); contested decision, recitals 20, paragraphs 5 to 7, 45, paragraph 10,46, 48 and 65, paragraph 3). 4493. In its observations of 8 January 1998 Vicat puts forward still more documents toshow that it did not participate in an alleged Cembureau agreement. 4494. First, it refers to documents 33.126/370, 371, 387, 423, 623, 630, 632, 673, 674 and1543 to 1547 on the Franco-Belgian agreement referred to in the SO in order toshow that the Commission intentionally remained silent about a Belgian nationalagreement of which it had been notified and in respect of which it had adopted amore positive position. Vicat claims that this constitutes objective evidence whichcould have been a source of specific facts to support the alternative explanation,namely that the conduct of the European cement producers was due to the naturalor actual inflexibility of the various national markets. Furthermore, document33.126/18023, which contains the replies of the Belgian company CCB (seeparagraph 1169 above) to the written questions put by the Commission's officials,would have been of use in its defence to the objection relating to its participationin an alleged Franco-Belgian agreement. 4495. The Court points out, however, that the observations which Vicat makes on thebasis of the documents referred to above do not show that there has been a breachof its rights of defence. First, Vicat cannot rely on documents which support itsanalysis of the market in question to challenge the existence of the Cembureauagreement, which was established on the basis of specific documentary evidence(see paragraph 264 above). Second, at no point in the contested decision is Vicataccused of having participated in a Franco-Belgian agreement. Access to thedocuments referred to above would not therefore have been of such a nature asto induce the Commission to adopt a different decision on that point. Vicat'sargument must therefore be rejected. 4496. Vicat then puts forward a number of documents to establish that it is in a specialposition on the French market and that it pursues an independent strategy from itscompetitors. It refers to the Lafarge internal memoranda of 25 April 1988(documents 33.126/4621 to 4624) and 21 April 1989 (documents 33.126/4796 to4804), and to a Lafarge record of a visit to Brussels on 11 November 1987 (documents 33.126/7418 to 7428), the content of which shows that Vicat occupieda comparatively atypical position on the French market and the European marketand that it had no interest in agreements or concerted practices involvingundertakings from other European countries. 4497. However, those documents would not have been of any use to Vicat's defenceduring the administrative procedure. The assessment of Vicat's special competitiveposition and of its interest in taking part in international agreements or concertedpractices was not of such a nature as to shed a different light on the specificdocumentary evidence on which the Commission relied in the SO and the contesteddecision to establish the existence of the Cembureau agreement and Vicat'sparticipation in that agreement through an unlawful concerted practice with Buzzi(SO, points 9, 10, 59 and 61(b); contested decision, recitals 18, 19, 20, paragraphs5 to 7, 45, paragraph 10, 46, 48 and 65, paragraph 3). D  Case T-39/95 Ciments Français v Commission 4498. Ciments Français claims in its observations of 10 February 1997 that it would havebeen able to show on the basis of the content of the national files that the allegedCembureau agreement had no connection with the Franco-German agreement,with the Hispano-Portuguese agreement, with the Franco-Italian agreement or withthe ETF's actions. It claims that the documents relating to the national agreementscontain no reference to Cembureau or to a Cembureau agreement. 4499. That argument must be rejected. The fact that the documents relating to thenational agreements contain no reference to Cembureau or to the Cembureauagreement is not of such a nature as to shed a different light on the evidence onwhich the Commission relied, in the SO and the contested decision, to demonstratethe existence of the Cembureau agreement and the link between the variousinternational agreements and that agreement (SO, points 9 to 19, 27 to 29, 59, 61and 67; contested decision, recitals 18 to 27, 30, 35 to 37, 45 to 55, 59 and 65). E  Case T-42/95 Heidelberger v Commission 4500. In its observations of 20 February 1998 Heidelberger refers to a telex from MrSchuhmacher to Mr Schleicher dated 16 March 1984 (documents 33.126/5217 and5218). The content of that document shows that, during the meeting of 14 January1983 in which he took part, Mr Schuhmacher had no precise picture of the conceptand function of a Head Delegate. He therefore confused the Head Delegatesmeeting with the meeting of the liaison group, at which no topic contrary to theCommunity rules on agreements and concerted practices was addressed. MrSchuhmacher, who was clearly unaware of his function in the system which the Commission believes it has detected within Cembureau, could not have committedthe German industry to an agreement which was contrary to the Treaty. 4501. The Court points out, however, that Mr Schuhmacher, who wrote the telex inquestion, was then the Chairman of the Board of Directors of Heidelberger. Thedocument in question was therefore known to Heidelberger when theadministrative procedure took place. If Heidelberger had then considered that thedocument contained exculpatory evidence, there was nothing to prevent it fromrelying on it during the administrative procedure. Accordingly, there can be noquestion of infringement of its rights of defence (see paragraph 248 above). In anyevent, the telex would not have been of such a nature as to shed a different lighton the bundle of specific documentary evidence on which the Commission reliedin concluding that the Cembureau agreement existed (SO, paragraphs 9 and 61;contested decision, recitals 18, 19 and 45) and that that agreement had beenimplemented by Heidelberger, in particular through its participation in the Franco-German agreement and the setting-up of the ETF (SO, points 12, 16, 17, 59 and61(d) and (h); contested decision, recitals 22, 24, 25, 45, paragraph 10, 46, 50, 53,and 65, paragraph 3). F  Case T-50/95 Unicem v Commission 4502. In its observations of 28 November 1997, Unicem maintains that a number ofdocuments (documents 33.126/4140 to 4142 and 6619 to 6622) to which it hadaccess following the measures prescribed by the Court confirm that, owing to theextremely fragmented nature of supply, its internal market could not form thesetting for the collusion which the Commission believes to be found there. Thosedocuments also show that the Italian cement producers were not capable ofdevising coordinated retaliatory measures against imports from abroad, owing tothe large number of actors on the market, and that they were not in a position toexport, since the Italian market did not form part of a 'natural transfrontiermarket, as was the case, for example, of the markets in Western Germany,Belgium, the Netherlands, Luxembourg and northern France (see documents33.126/939, 1081, 1107, 2550, 7810, 7835, 7857, 7858, 8107 and 9212). A Lafargedocument of June 1985 (document 33.126/6852), moreover, expressly shows thatowing to the distance between Unicem's factory and the coast, inadequate portinfrastructures and the power of the dockers' unions, it was impossible for Unicemto export profitably. 4503. Unicem refers to the documents referred to in paragraph 1224 above on thenational agreements and concerted practices and claims that it did not participatein any initiative designed to 'lock the national markets. 4504. The Court observes that only the international objections were pursued by theCommission in the contested decision, not the national objections. The only international objection involving solely the Italian producers which was upheld inthe contested decision is the agreement between Italcementi, Cementir and Unicemrelating to the contracts and agreements signed on 3 and 15 April 1987 with theItalian company Calcestruzzi (Article 4(3)(b)). In that regard, it is clear that theexplanations based on an economic analysis of the Italian market which Unicemwould have been able to put forward on the basis of the documents to which itrefers in its observations of 28 November 1997 to dispute the possibility of collusionon its domestic market, would not have been of such a nature as to shed a differentlight on the bundle of specific documentary evidence on which the Commissionrelied in concluding that there was an agreement between the three main Italiancement producers and that it had an anti-competitive purpose, namely to preventa threat of imports by Calcestruzzi, in approximately 10 ports, of 1.5 million tonnesof cement from Greece, which would have had a catastrophic effect on prices (SO,points 19(d) and 61(h); contested decision, recital 27, in particular paragraphs 5and 7 to 11, and recital 55, paragraph 2). 4505. Next, the Court observes that the three Italian producers, including Unicem,claimed in their answer to the SO that 'Italy could not be involved in theagreement on non-transhipment to home markets, since it did not ... export(contested decision, recital 45, paragraph 14). For the reasons stated in recital 45,paragraph 14, however, the Commission considered that '[t]his argument is notcorrect and that it was irrelevant in any event, since 'the fact remains that theundertakings of [that member country] of Cembureau [had] participated in anagreement whose object was to prevent competition. Accordingly, the furthercomments which Unicem would have been able to make to show that it wasimpossible for it, as for the other Italian producers, to export profitably wouldclearly not have been of such a nature as to alter the outcome of the administrativeprocedure. 4506. Unicem further states that it is clear from the documents to which it had accessfollowing the measures prescribed by the Court that the local conduct, individualactions, relations and bilateral agreements noted at the time among Europeancement producers operated wholly independently of an alleged Europeanagreement on non-transhipment to home markets. It observes that the documentswhich it was able to consult made no reference to any overall plan seeking toguarantee non-transhipment to home markets on a European scale. That alsoclearly contradicts the Commission's theory that the various bilateral andmultilateral actions and forms of cooperation which could be seen on the marketswere based on a Cembureau principle of sharing the national markets. The variousnational files actually show that each of the actions observed on the markets wasthe responsibility of the producer(s) concerned and responded to commercialconstraints and production requirements specific to each market. 4507. Unicem relies first on document 33.126/375, the minutes of the meeting of theBoard of Directors of Ciments d'Obourg held on 26 June 1987. It is apparent from that document that, where cement producers were threatened by imports, theyalone decided on retaliatory measures. Unicem then refers to a series ofdocuments relating, in turn, to Franco-German cooperation (documents33.126/14763, 14801 to 14803, 16383 to 16389, 16600 to 16608 and chapters of theSO on Germany), German agreements on the exchange of information and thesharing of regional markets (pp. 176 to 262 of the German file and documents33.126/20382, 20383, 20416 to 20431, 20433 to 20442, 20498 and 20560 to 20571),the successful moves by the German producers to convince PZW to join thenational association and the local agreements on the allocation of productionquotas (documents 33.126/3740, 3741, 5385 to 5388, 5392 to 5394, 6687, 6710 to6714, 7041 bis to 7041 decies, 16545, 16546, 16559, 16560, 16588 to 16595, 20386to 20397, 20405, 20492 to 20497 and 20499), cooperation between Spain andPortugal (documents 33.322/311, 996 to 1011 and 2897 to 2903) and cooperationbetween France and the United Kingdom (documents 33.126/17220). All thosedocuments show that those local actions and bilateral agreements were completelyindependent of an alleged European agreement on non-transhipment to homemarkets. The documents relating to the bilateral agreements, in particular thoserelating to cooperation between Spain and Portugal and between France andGermany, also prove that those agreements were quite sufficient to ensure theharmonisation of the various interests of the markets and that there was no needto resort to a general European principle for that purpose. Unicem again considersthat if it had had access to the documents relating to the Franco-German andHispano-Portuguese agreements it would have been able to support the argumentwhich it put forward in its defence, namely that it had no connection with anybilateral or multilateral relations which might have existed between certainEuropean producers. 4508. The Court points out, however, that no national objection was upheld in thecontested decision. Furthermore, the contested decision did not attribute toUnicem any of the bilateral agreements and concerted practices defined in Article3, namely the Franco-Italian concerted practices (Article 3(1)), the Hispano-Portuguese agreement (Article 3(2)) and the Franco-German agreements andconcerted practices (Article 3(3)). Consequently, the comments which Unicemwould have been able to make during the administrative procedure to show thatthere was no connection between those national, bilateral and multilateralagreements and concerted practices and the Cembureau agreement could not havealtered the outcome of the administrative procedure in its case. 4509. In any event, neither the fact that in the various documents on which Unicem reliesthere is no reference to a Cembureau agreement or principle of non-transhipmentto home markets, nor the comments which Unicem could have made as to theautonomy of the individual actions and the bilateral relations and agreementsobserved on the various markets, and the effectiveness of those relations andagreements themselves in ensuring harmony of the various interests on the markets,would have been of such a nature as to shed a different light on the body of specific documentary evidence on which the Commission relied in concluding thatthe Cembureau agreement existed (SO, points 9 and 61; contested decision, recitals18, 19 and 45) and that it was implemented by Unicem through its participation invarious measures within the framework of the single agreement relating to the ETF(SO, points 16 to 19, 59 and 61(h); contested decision, recitals 24 to 27, 45paragraph 10, 46, 53 to 55 and 65, paragraph 3). G  Case T-55/95 Asland v Commission 4510. Asland claims in its observations of 10 February 1997 that there is nothing in thedocuments to which it had access to support the conclusion that it clearly andintentionally manifested its accession to the alleged Cembureau agreement. 4511. It fails to state, however, how the fact that there is nothing in the documents madeavailable to it during the administrative procedure to indicate that it participatedin the Cembureau agreement is of such a kind as to shed a different light on thespecific documentary evidence made available to it and on which the Commissionrelied in concluding that the Cembureau agreement existed (SO, points 9 and61(a); contested decision, recitals 18, 19 and 45) and that it acceded to thatagreement through its participation in the setting-up of the ETF (SO, points 17, 59and 61(h); contested decision, recitals 25, 45, paragraph 10, 46, 53 and 65,paragraph 3). Its argument must therefore be rejected. H  Case T-65/95 Italcementi v Commission 4512. In its observations of 10 February 1997 Italcementi states that it is apparent fromthe German file that there can have been no link between the Franco-Germanagreement and the alleged Cembureau agreement. 4513. However, that argument has no relevance to proof of a breach of Italcementi'srights of defence. The Franco-German objection referred to in Article 3(3) of thecontested decision was not raised against Italcementi. Accordingly, those commentscould not have altered the outcome in its case. In any event, they would not havebeen of such a nature as to shed a different light on the various items of evidenceon which the Commission relied in the SO and the contested decision in concludingthat the Franco-German agreement had been, from 14 January 1983, a measureimplementing the Cembureau agreement (SO, points 12 and 61(d); contesteddecision, recitals 22, 46 and 50, paragraph 3). I  Case T-88/95 Blue Circle v Commission 4514. In its submissions of 12 December 1997 Blue Circle maintains that the fact thatnone of the documents to which it had access following the measures prescribedby the Court refers to its participation in the Cembureau agreement constitutesexculpatory evidence. 4515. Blue Circle fails to state, however, how the fact that there is no reference to itsparticipation in the Cembureau agreement in the documents made available to itduring the present proceedings is of such a nature as to shed a different light onthe specific documentary evidence on which the Commission relied in concludingthat the Cembureau agreement existed (SO, points 9 and 61(a); contested decision,recitals 18, 19 and 45) and that it had acceded to that agreement through itsparticipation in various measures adopted within the framework of the singleagreement relating the ETF (SO, points 16 to 19, 59 and 61(h); contested decision,recitals 25 to 27, 45, paragraph 10, 46, 53 to 55 and 65, paragraph 3) and itsparticipation in the activities of the EPC (SO, points 24, 27 to 29, 59 and 67;contested decision, recitals 30, 35 to 37, 45, paragraph 10, 46, 59 and 65, paragraph3). Its argument must therefore be rejected. Final conclusions 4516. It follows from all the foregoing that Article 1 of the contested decision must beannulled in its entirety in so far as it concerns ENCI, Cedest, Alsen-Breitenburg,Nordcement, Buzzi, Rugby, Castle, Heracles and Titan. 4517. Article 1 of the contested decision must also be annulled in so far as it finds aninfringement by:  CBR, before 9 June 1986 and after 7 November 1988;  Cembureau, after 31 December 1988;  FIC, after 31 December 1988;  VNC, after 31 December 1988;  Ciments Luxembourgeois, after 31 December 1988;  Dyckerhoff, after 7 November 1988;  SFIC, after 31 December 1988;  Vicat, before 11 May 1983 and after 23 April 1986;  Ciments Français, after 17 February 1989;  Heidelberger, after 12 August 1987;  Lafarge, after 19 May 1989;  Aalborg, after 31 December 1988;  BDZ, after 31 December 1988;  Unicem, before 9 September 1986 and after 3 April 1992;  Valenciana, after 13 May 1987;  BCA, after 31 December 1988;  Asland, before 28 May 1986 and after 31 May 1987;  Uniland, before 9 September 1986 and after 7 November 1988;  Oficemen, after 24 April 1989;  Irish Cement, after 31 December 1988;  Cimpor, after 24 April 1989;  SECIL, after 24 April 1989;  ATIC, after 31 December 1988;  Italcementi, before 19 March 1984 and after 3 April 1992;  Holderbank, after 7 November 1988;  Hornos Ibéricos, after 19 May 1989;  Aker, after 7 November 1988;  EUROC, after 7 November 1988;  Cementir, after 3 April 1992;  Blue Circle, before 18 November 1983 and after 7 November 1988;  AGCI, after 31 December 1988;  Halkis, before 18 November 1983 and after 1 September 1986. 4518. The remaining pleas must be rejected.                                                                     XIII  Pleas of infringements of Article 85(1) and Article 190 of the Treaty and therights of defence in that the Commission finds that there were, within the frameworkof the WCC, infringements of Article 85(1) of the Treaty and that various applicantsparticipated in them (Article 7 of the contested decision) Preliminary observations 4519. According to Article 7 of the contested decision Italcementi, Dyckerhoff, Lafarge,Ciments Français and CBR, from 6 May 1982 to 26 May 1988, and Valenciana,from 1 January 1986 to 26 May 1988, 'infringed the provisions of Article 85(1) ofthe EC Treaty by participating, within the framework of the WCC, in the concertedpractice and agreement relating to non-transhipment to home markets, in thecontinuous concerted practice relating to the channelling of production surplusesfor export to third countries, and in a continuous concerted practice relating toexchanges of information on the production capacities, output, domestic and exportsales, domestic prices for white and grey cement and export prices of individualundertakings. 4520. The reasoning dealing with these infringements is set out, in 'The Facts, in recitals38 to 41 and, in the 'Legal Assessment, in recitals 61 to 63 of the contesteddecision. 4521. The Commission first sets out the framework within which these infringements werecommitted, namely the WCC, and describes the object pursued by its members andthe unlawful activities in which they engaged. 4522. In recital 38, paragraph 1, of the contested decision the Commission, relying on ahandwritten undated note of Ciments Français (document 33.126/4454), an internalnote of Ciments Français dated 7 March 1989 (documents 33.126/4466 and 4467)and the record of the WCC meeting on 3 October 1985 drawn up by CBR(documents 33.126/9962 to 9966), states that 'the WCC [was] a club of Europeanexporting white-cement manufacturers. It was (recital 38, paragraph 2) aninformal club without by-laws or founding instrument and its secretariat wasprovided in turn by the members. 4523. The Commission continues (same paragraph): 'The only certainties about the WCC, according to the records of the meetingsbetween 6 and 7 May 1982 and 26 May 1988 entered in the file, are that itsmembers [met] twice a year and that the activity of the club [was] supported by aWhite Cement Promotion Committee (WCPC), which consist[ed] only of the WCC's members ... and which [was] responsible for the promotion of white cementand the exchange of information on its various uses. 4524. Furthermore (recital 38, paragraph 5): 'According to a note from Italcementi of 30 August 1985 (document 33.126/2802),which points out that the WCC is not an offshoot of Cembureau although it wasset up several years ago by Cembureau members, the founder members of theWCC were: Aalborg (Denmark), Alsen and Dyckerhoff (Germany), CBR(Belgium), Lafarge (France), Blue Circle (United Kingdom), Italcementi (Italy);they were joined later by, first, Ciments Français (France) and then Valenciana(Spain) ... 4525. The Commission goes on to state (recital 39, paragraph 7): 'In January 1984 (documents 33.126/2850 to 2852), Italcementi, Dyckerhoff,Lafarge, Ciments Français and CBR met in restricted committee and, havingobserved that cooperation with Aalborg was no longer possible, decided to suspendthe old WCC and set up a new one ... 4526. Referring to the content of an internal Italcementi memorandum dated 30 April1984 (recital 39, paragraph 8; documents 33.126/2842 to 2844), the Commissionobserves that the new WCC, composed of those five undertakings and Valenciana,held its first meeting on 13 March 1984. 4527. The Commission then describes the illegal activities in which the applicants inquestion were involved within the framework of the WCC. Those activitiesconsisted, first, in establishing close cooperation based on the twofold rule ofrespect for home markets and the channelling of surplus production outside theCommunity market and, second, in exchanging data on production capacities,output, home and export sales, home prices for white and grey cement and exportprices of individual undertakings. 4528. As regards the first branch of those activities, the Commission observes (recital 61,paragraphs 1 and 2): 'The documents referred to in recital 39 reveal that the object of the WCC is toprotect the members' home markets and to export their production surpluses undera general agreement. The members of the WCC established close cooperation and a community ofinterests in which the division of the Community markets forms the basis of ageneral consensus amongst them. To make it effective, the division of markets wasreinforced by the practice of channelling for export to third countries that part ofproduction that was not absorbable by the markets of the countries in which each member is established. The protection of home markets and the channelling ofproduction surpluses for export are thus two inseparable aspects of one and thesame obligation. 4529. As regards the second branch of the WCC's activities, the Commission states(recital 62, paragraph 1): 'The system of information exchange (recital 40) under which the WCC memberspass on to one another at the meetings data on the production capacities, output,home and export sales, home prices for white and grey cement and export pricesof individual undertakings ... The object of the system of information exchange isto make known the conduct which each member plans to pursue on the variousCommunity and export markets, and it creates, between the undertakingsparticipating in it, a system of solidarity and reciprocal influence designed toachieve coordination of their economic activities. 4530. CBR (T-25/95), Dyckerhoff (T-35/95), Lafarge (T-43/95), Valenciana (T-52/95) andItalcementi (T-65/95) dispute both the existence of the infringements and theirparticipation therein. Ciments Français (T-39/95) does not devote any plea in itsapplication to formally disputing the infringement referred to in Article 7 of thecontested decision. The applicants' complaints concern both the assessment of theeconomic context of the infringements established in Article 7 and theinterpretation of the evidence presented by the Commission in the contesteddecision. There are also arguments alleging that certain matters are time-barred.Valenciana and Italcementi also rely on an infringement of their rights of defenceowing to the lack of access during the administrative procedure to documents in theCommission's file which might have proved useful to their defence, having regardto the complaints ultimately upheld in Article 7 of the contested decision. Protection of home markets and coordinated export of production surpluses outsidethe Community 4531. In recital 39 of the contested decision the Commission refers to five documentswhich lead it to the view (recital 61, paragraph 1) that 'the object of the WCC[was] to protect the members' home markets and to export their productionsurpluses under a general agreement. 4532. It refers, first (recital 39, paragraph 1; document 33.126/4454), to a handwrittenundated note from Ciments Français, according to which the WCC 'is a club:purpose: protection of home markets  rule: each member keeps to its homemarket and exports its excess production on generally agreed terms. 4533. Second, it observes (recital 39, paragraph 2) that: 'The object and the rule are confirmed by certain records of WCC meetings. Therecord of the meeting of 9 May 1985, compiled by Ciments Français (documents33.126/2793 to 2798) states at item 2 Relations with Aalborg/BC and ABZ/Japanthat the decision was taken not to invite Aalborg to the meetings any more and[t]hey point out that respecting 'home markets is the sine qua non formembership of the WCC or WCPC. 4534. Third, it reproduces at length (recital 39, paragraph 3; documents 33.126/9958 to9961) the general conclusions reached by CBR in an internal memorandum drawnup after the WCC meeting on 3 October 1985, and in particular the followingconclusions: 'The current members abide amongst themselves by a certain set of rules, but forhow much longer? (example of Tunisia) Most white-cement manufacturers have an easy life within their national borders... Respecting the home market does not suit us, because de facto it limits our naturalmarket in the Benelux. 4535. Fourth, and last, it relies on the content of two records of WCC meetings. 4536. It refers, first (recital 39, paragraph 4; documents 33.126/9874 and 9875), to anextract from the record of the meeting of 2 October 1986 compiled by CBR, whichin 'point 1. Aalborg relates the following conversation between Ciments Françaisand Aalborg: (Aalborg) 'You still don't want us in the WCC; (Ciments Français) 'You know very well why you are no longer in the WCC. Weare all affected in proportion to the exports we made. There was a gentlemen'sagreement (to) respect home market. 4537. The Commission then refers (recital 39, paragraph 4; documents 33.126/2737 to2739) to Italcementi's record of the same meeting, which states: 'Mr Leboeuf [representing Ciments Français] seized the opportunity to drawattention to respect for home markets. 4538. The applicants put forward in essence six separate arguments disputing that theobject of the WCC was illegal. 4539. First, CBR, Dyckerhoff, Lafarge, Valenciana and Italcementi claim that the soleobject of the WCC was to promote its members' exports to non-member countries, in particular by exchanging information on overseas export markets, so that theWCC's activities had no impact on competition in the Community cement market. Dyckerhoff adds that although the WCC was actually responsible for promoting thesale in non-member countries of the quantities of white cement which its memberswere unable to sell in the Community there was no question of an activity contraryto Article 85(1) of the Treaty, since the undertakings belonging to the WCCremained free to make independent decisions on the sale of their output. Lafargemaintains that the WCC's object was not to channel its members' productionsurpluses outside the Community but to obtain the best prices and that, moreover,the records of the WCC meetings deal only with overseas exports. 4540. The Court points out first that it is apparent from the various documents referredto in recital 40 of the contested decision that cooperation between the members ofthe WCC covered all areas and not merely overseas exports outside theCommunity: production capacity (present and future) and output; sales andforecast sales on home markets; export sales and forecasts; export prices; andprices on home markets. Accordingly, it cannot be denied that the members of theWCC analysed and exchanged with one another information relating to theircommercial policies, both domestic and export. 4541. Next, the applicants' allegations are unable to undermine what is shown by thebundle of documents to which the Commission refers in recital 39, paragraphs 1 to4, of the contested decision (see paragraphs 4531 to 4537 above), whichunequivocally shows that the WCC's real object was respect for its members' homemarkets and the channelling of their production surpluses to non-member countriesas a guarantee thereof. 4542. It is clear upon reading those various documents that the Commission was entitledto take the view (recital 61, paragraph 1) that 'the object of the WCC [was] toprotect the members' home markets and to export their production surpluses undera general agreement. 4543. Article 85(1)(c) of the Treaty expressly prohibits all agreements and concertedpractices which 'share markets. In that regard, where undertakings reach anunderstanding to exclude particular products from certain markets in theCommunity they engage in anti-competitive practice contrary to Article 85(1) of theTreaty, whether the products in question are channelled towards other MemberStates or outside Europe (see, in particular, Dunlop Slazenger v Commission, citedin paragraph 270 above, paragraphs 67, 68 and 87 to 127). 4544. In the present case, therefore, the WCC pursued an aim which restrictedcompetition, contrary to Article 85(1) of the Treaty. 4545. Second, CBR, Dyckerhoff, Valenciana and Italcementi dispute the probative valueof the documents presented by the Commission in recital 39 of the contested decision, or at the very least some of them. As the WCC had neither by-laws nora formal structure and organisation, those documents were internal documentswhich at the very most expressed the personal views of the authors and thereforeonly rendered the authors liable. 4546. Those arguments must be rejected. Evidence must be assessed, not in isolation, butas a whole (Case 48/69 ICI v Commission, cited in paragraph 636 above, paragraph68; Thyssen Stahl v Commission, cited in paragraph 2062 above, paragraph 175). Although the various documents referred to above come from different sources(CBR, Ciments Français, Italcementi), they consistently show that the WCC'spurpose was to ensure respect for home markets. The Commission was thereforeentitled to rely on that consistent body of evidence in arriving at the conclusionswhich it draws in recital 61, paragraph 1, of the contested decision. 4547. Dyckerhoff further claims that the content of the documents in question does notreflect what actually took place at the various meetings in which its representativeparticipated. 4548. However, it adduces no evidence to show that the documents used by theCommission do not provide an accurate account of the discussions which took placeduring the WCC meetings to which those documents relate. Its argument musttherefore be rejected. 4549. Dyckerhoff also draws attention to the limited number of documents to which theCommission refers in comparison with the total number of documents relating tothe WCC in its file, which show that the WCC's members concentrated on theirexports outside the Community. 4550. It should be pointed out, however, that proof of the existence of an infringementof Article 85(1) of the Treaty depends not on the number of documents used forthat purpose but on their value as evidence. In that regard, Dyckerhoff's criticismhas no effect on the probative value which the Commission properly ascribed to thedocuments referred to in recital 39, paragraphs 1 to 4, of the contested decision. Dyckerhoff's argument must therefore be rejected. 4551. It is also necessary to reject the criticisms made by Italcementi in respect of theItalian translation of the handwritten undated note from Ciments Français(contested decision, recital 39, paragraph 1; documents 33.126/4454 and 4455). Those criticisms cannot alter the express meaning of the original version of thatextract, which alone is authentic. 4552. Valenciana further maintains, in response to the Commission's reference, in itsdefence, to the record of the WCC meeting on 17 December 1987 (document33.126/9890), that the reference in that document to home markets does not justifythe conclusion that there was a prior agreement to share the national markets but merely illustrates the influence which supply on national markets inevitably has onthe volume of exports to non-member countries. 4553. Although in footnote 185 of the contested decision the Commission provides thereferences to the various records of the WCC meetings held throughout the periodof the infringement, including the meeting on 17 December 1987, it is apparentupon reading recital 39 of the contested decision that the Commission did not relyon the record of that meeting to show that the fundamental rule of the WCC wasrespect for home markets. Valenciana's argument is therefore irrelevant. 4554. Third, Valenciana maintains that the Commission cannot presume that thechannelling of production surpluses and the protection of home markets were twoaspects of the same rule, without reaching the incorrect conclusion that anycooperation in exporting to non-member countries necessarily implies the existenceof a non-aggression pact in respect of the markets of the various parties to thatpact. 4555. That argument must be rejected. A number of documents presented by theCommission in the contested decision contradict Valenciana's allegations. First, itfollows from the undated handwritten note by Ciments Français (contesteddecision, recital 39, paragraph 1; document 33.126/4454) that the WCC '[was] aclub: purpose: protection of home markets  rule: each member keeps to its homemarket and exports its excess production on generally agreed terms. Next, theextract from the conversation between Aalborg and Ciments Français reproducedin CBR's record of the WCC meeting on 2 October 1986 (contested decision,recital 39, paragraph 4; documents 33.126/9874 and 9875) states: 'We are allaffected in proportion to the exports we made. There was a gentlemen'sagreement (to) respect home market. 4556. Both those extracts from documents establish that the members of the WCC hadmade respect for home markets and the channelling of exports to non-membercountries two interdependent parts of one and the same rule of the game, whosepurpose was to ensure the protection of their domestic markets. The Commissionwas therefore entitled to conclude (recital 61, paragraph 2, in fine) that '[t]heprotection of home markets and the channelling of production surpluses for exportare thus two inseparable aspects of one and the same obligation or again (recital61, paragraph 5) that '[t]he channelling of production surpluses to third countries[was] a corollary of the concerted practice and agreement on the protection ofhome markets. 4557. The foregoing assessment (paragraphs 4555 and 4556) also leads the Court toreject Dyckerhoff's argument that the objection relating to the channelling ofproduction surpluses to exports to non-member countries has no basis in fact or inlaw in the contested decision, since there is no reference to such concertedchannelling within the WCC in the documents referred to by the Commission. 4558. Fourth, Lafarge maintains that there was not even an indirect link between theWCC and Cembureau. Dyckerhoff and Italcementi dispute the Commission'sassertion (contested decision, recital 38, paragraph 6) that the WCC came underthe ECMEC, like the EPC and the ECEC. 4559. However, although in recital 38 of the contested decision ('Nature and functionsof the WCC) the Commission does in fact analyse a number of documents and onthat basis reach the conclusion (recital 38, paragraph 6) that 'the ECMECconsisted of the three export committees: ECEC, EPC and WCC, the Court pointsout that its conclusion that the WCC had an anti-competitive object was basedexclusively (recital 61, paragraph 1) on '[t]he documents referred to in recital 39and that it never treated the link between the WCC and Cembureau or theECMEC as one of the decisive elements of its legal assessment. The parties'arguments on this point must therefore be rejected. 4560. Fifth, CBR, Dyckerhoff, Valenciana and Italcementi dispute the Commission'sanalysis in recital 39, paragraphs 6 to 17, of the contested decision of the specificcases in which the home market rule was applied, namely the exclusion of Aalborgfrom the WCC for its alleged breach of the home market rule (recital 39,paragraphs 6 to 13), the exclusion of Blue Circle and Alsen-Breitenburg from theWCC for reasons allegedly linked with those which had led to Aalborg's exclusion(recital 39, paragraphs 14 and 15), the relations between Blue Circle and Lafarge(recital 39, paragraph 16) and the relations between Italcementi and Dyckerhoff(recital 39, paragraph 17). 4561. Before the various arguments formulated by the applicants in regard to thosedifferent cases are examined in detail, it should be pointed out that the mere factthat an agreement or concerted practice is animated by an anti-competitive purposeis sufficient to render it incompatible with Article 85(1) of the Treaty, whether ornot it had effects of that type (see, to that effect, the case-law cited in paragraphs837 and 1674 above). It has been established that, in the present case, the purposeof the WCC was anti-competitive (see paragraphs 4531 to 4544 above). Moreover,in the absence of proof to the contrary, which it was for the undertakingsconcerned to adduce, the Court finds that the cooperation at WCC level influencedthe conduct of its members, which remained active on the market (see, to thateffect, Commission v Anic, cited in paragraph 270 above, paragraph 118, and Hülsv Commission, cited in paragraph 155 above, paragraph 161). 4562. It must now be established, by examining the arguments put forward by theapplicants in regard to each of the cases which the Commission presents as anapplication of the home market rule in force within the WCC, whether theCommission was justified in seeing further proof of the illegal object of the WCCin the fact (contested decision, recital 61, paragraph 3) that '[t]he home marketrule [had been] applied ... [and that] [a]ny infringement of the rule [had been]penalised. 4563. As regards, first, Aalborg's exclusion from the WCC, CBR, Dyckerhoff andItalcementi contend that it was excluded not, as the Commission claims, becauseit had breached the alleged home market principle but for reasons to do with itsaggressive pricing policy on the overseas export markets. 4564. CBR states that at the close of the WCC meeting on 24 July 1986, which wasdevoted specifically to the Aalborg case, a decision was taken to react individually,not collectively, to Aalborg's conduct. The need to hold an ad hoc meeting on thatissue confirms that the WCC's object was not to impose the home market rule. 4565. Dyckerhoff claims that the account of the Aalborg case confirms that the WCC'sactivity consisted solely in cooperating on the overseas markets. It explains thatAalborg, which was anxious to increase its exports to the overseas markets byadopting very aggressive pricing conduct, participated in the WCC meetings withthe sole aim of obtaining information for that purpose. That attitude led the otherWCC members to exclude Aalborg from the exchange of information on theoverseas markets, as the various records of the WCC meetings confirm, especiallythe record of the meeting on 13 September 1983 (contested decision, recital 39,paragraph 6). Dyckerhoff considers that it is wholly illogical to exclude one of themost important white cement manufacturers from the WCC, on the ground that ithad breached an alleged home market rule, when the principal aim of the WCCwas, in the Commission's words, to implement the home market rule. Similarly, itcannot be presumed from any of the documents presented in the contested decisionthat the WCC members made the resumption of collaboration with Aalborgconditional upon the latter's acceptance, in any form whatsoever, of the allegedhome market rule. 4566. Italcementi contends that it is inaccurate to describe as an expulsion or a penaltythe WCC's members' refusal of Aalborg's application to join. Aalborg was notadmitted to the WCC because it practised an aggressive commercial policy on theoverseas markets (see Italcementi's memorandum of 3 September 1982 (documents33.126/286 to 2880) and the record of the WCC meeting on 2 October 1986compiled by CBR (contested decision, recital 39, paragraph 4; documents33.126/9874 and 9875)). 4567. It must be pointed out, however, that the evidence adduced by the Commission inthe contested decision specifically contradicts the argument advanced by these threeapplicants. 4568. The documents referred to in recital 39, paragraphs 6 to 8, of the contesteddecision unequivocally show that Aalborg was at first temporarily excluded from theWCC for slashing its prices in the overseas export markets, whereas it had beenagreed among the members of the WCC that production surpluses should beexported 'on generally agreed terms in order to protect home markets (contesteddecision, recital 39, paragraph 1; document 33.126/4454). As stated in the contested decision (recital 39, paragraph 9), that temporary suspension started tolook like an expulsion when the members of the WCC learnt that Aalborg hadbegun to export to certain European markets (Germany and Belgium), that it waspreparing to sell white cement in 5 kg bags and that it had not replied at all to theletter sent to it on 19 March 1984 by Mr Clemente (Italcementi) on behalf of themembers of the new WCC. At the meeting on 21 May 1984 all the members ofthe WCC expressed the desire not to allow Aalborg back in the committee(contested decision, recital 39, paragraph 9; documents 33.126/2830 to 2832). Aalborg's conduct was seen by the WCC members as infringing the home marketrule adopted in the WCC, which is confirmed by the extract from the conversationbetween Ciments Français and Aalborg set out in the record compiled by CBRfollowing the WCC meeting on 2 October 1986 (contested decision, recital 39,paragraph 4): (Ciments Français) 'You know very well why you are no longer inthe WCC. We are all affected in proportion to the exports we made. There wasa gentlemen's agreement (to) respect home market. Further confirmation of theCommission's analysis is to be found in the note from Italcementi dated 30 August1985 (contested decision, recital 38, paragraph 5; document 33.126/2808 (not 2802,as wrongly indicated at that point in the contested decision)), which states whyAalborg was not able to join the new WCC in 1984: 'Aalborg broke theagreements. The Commission was therefore entitled to take the view thatAalborg's exclusion from the WCC was intended to penalise its infringement of thetwofold rule of respect for home markets and the export of production surplusesoutside the Community under a general agreement. 4569. Contrary to what Dyckerhoff alleges, moreover, it follows from all those documents,and in particular from the extract from the conversation between Ciments Françaisand Aalborg referred to in the previous paragraph, that the penalty ultimatelyimposed on Aalborg was simply expulsion from the WCC, not merely from thesystem of exchange of periodic information on the overseas export markets. 4570. Likewise, contrary to what CBR alleges, the fact that the members of the WCCconsidered it necessary to hold a working session on 24 July 1986 for the specificpurpose of examining possible retaliatory measures to counter any attack byAalborg on their home markets and that, following that meeting, it was finallyagreed, at the WCC meeting on 2 October 1986, that each member would respondindividually to Aalborg's attacks (contested decision, recital 39, paragraphs 11 to13) is not susceptible of invalidating any of the points in the analysis presented bythe Commission in the contested decision. On the contrary, the very fact of holdingthat meeting for the specific purpose of examining the retaliatory measures thatmight be envisaged to prevent a competitor from intruding on the home marketsmerely confirms the anti-competitive purpose of the WCC. 4571. As regards, second, the exclusion of Blue Circle and Alsen-Breitenburg from theWCC (contested decision, recital 39, paragraphs 14 and 15), CBR, Dyckerhoff,Valenciana and Italcementi claim that the explanation lies solely in the fact that Blue Circle had stopped exporting white cement to non-member countries, whileAlsen-Breitenburg no longer manufactured white cement. 4572. Again, the evidence adduced by the Commission in the contested decisioncategorically contradicts the applicants' argument. Although Blue Circle and Alsen-Breitenburg were actually suspended and then excluded from the WCC, the formerbecause it no longer produced white cement for export and the latter because ithad stopped producing white cement (contested decision, recital 39, paragraph 14),Italcementi's record of the WCC meeting in January 1984 (contested decision,recital 39, paragraph 7; documents 33.126/2850 to 2852) states that: 'Cooperationis equally unlikely with the British company Blue Circle and Alsen-Breitenburg,because both companies buy Aalborg products to supply their foreign customers. As regards Blue Circle, the record of the WCC meeting on 19 June 1986, afternoting, under the item 'Possible return of former members, that as there was nomajority in favour Blue Circle's request to be readmitted to the WCC had beenrejected, mentions two remarks (contested decision, recital 39, paragraph 15;documents 33.126/9914 to 9920, in particular 9920): '1) CBR referred to itscontacts with Blue Circle (position regarding imports from Aalborg into Scotland). 2) Ciments Français thinks that Aalborg is supplying or has supplied white clinkerto Blue Circle. It follows from those various documents that although Blue Circleand Alsen-Breitenburg were excluded from the WCC partly as a result of theindustrial and commercial decisions which they had taken, another reason was thefact that they bought white cement from Aalborg to supply their foreign customers,thus making themselves accomplices, in the eyes of the other WCC members, in aninfringement of the twofold rule of respect for home markets and the channellingof exports under a general agreement. 4573. As regards, third, relations between Blue Circle and Lafarge (contested decision,recital 39, paragraph 16), Dyckerhoff complains that the Commission tookItalcementi's record of the WCC meeting on 2 October 1984 (documents33.126/2815 to 2817) as the basis for its conclusion that this was a case of theapplication of the home market rule, whereas the author of the record was notfrom either of the undertakings concerned and the document referred to anindividual (Mr Wiggins) who had not attended the meeting in question. Dyckerhofffurther claims that it only became aware of that document upon reading thecontested decision. 4574. That argument cannot be accepted. 4575. First, the Court points out that point 22(c) of the SO, dealing with 'Blue Circle Lafarge reproduces the following extract from the record of the WCC meeting on2 October 1984 made by Italcementi: 'Mr Wiggins, a former secretary of the WCC, asked Mr Balbo of Lafarge aboutsupplies of white cement for the United Kingdom. Mr Balbo replied that he couldhave considered the request only with Blue Circle's prior agreement. 4576. This passage from the SO corresponds virtually word for word with the content ofrecital 39, paragraph 16, of the contested decision. Furthermore, Italcementi'srecord of the WCC meeting on 2 October 1984 (documents 33.126/2815 to 2817)was in the Box (see paragraph 95 above). Dyckerhoff cannot therefore claim thatit only became aware of the content of that document upon reading the contesteddecision. 4577. The Commission was justified in regarding the extract reproduced in recital 39,paragraph 16, of the contested decision as expressing Lafarge's intention toobserve, with regard to Blue Circle, the home market principle agreed within theframework of the WCC. 4578. The fact that Mr Wiggins was not present at the WCC meeting on 2 October 1984,like the fact that the record of the meeting did not come from one of the twoundertakings concerned, does not affect either the evidential value of that extractfrom the document or the likelihood that the information which it contained wascorrect. 4579. As regards, fourth, relations between Italcementi and Dyckerhoff (contesteddecision, recital 39, paragraph 17), Dyckerhoff also claims that it only becameaware of the Italcementi note entitled 'Reflections on the white cement markets(documents 33.126/3370 to 3375) upon reading the contested decision. It alsostates that Italcementi never gave any commitment to it. 4580. Italcementi asserts that, contrary to what the Commission maintains, it does notfollow from its internal note of 23 December 1987 that it had concluded anagreement to respect the German market with Dyckerhoff, in implementation ofthe alleged home market rule. It claims to have taken an autonomous strategicdecision to export white cement only to neighbouring countries, such as Switzerlandand Austria, and to overseas countries, because it considered exports to otherEuropean markets difficult and unprofitable. Its note of 23 December 1987actually shows that it had not undertaken any commitment to others not to exportto Germany, since it also states that it intended to help the Italian company Sebinoto export cement to Germany. Its purpose in supporting Sebino in its efforts topenetrate the German market was to remove part of that Italian competitor'ssupply from its own traditional markets. 4581. Both Dyckerhoff's arguments and Italcementi's arguments must be rejected. 4582. In paragraph 22(f) of the SO, headed 'Italcementi  Dyckerhoff, the Commissionobserves: 'On 23 December 1987, Italcementi's representative drew up a memorandum forthe commercial director under the title Considérations sur les marchés du cimentblanc. The memorandum examines, inter alia, the outlook for each market and,with regard to the German market, states: En Allemagne où nous sommesengagés à ne pas déranger directement Dyckerhoff, mais où Sebino ... pourraitplacer avec notre appui, une partie de sa production, avec des compensationsquantitatives pour nous en Autriche et en Suisse. 4583. This passage from the SO corresponds virtually word for word with the content ofrecital 39, paragraph 17, of the contested decision. Furthermore, Italcementi's noteof 23 December 1987 was in the Box (see paragraph 95 above). Dyckerhoff cannottherefore claim that it became aware of the content of that document only uponreading the contested decision. 4584. Nor can Dyckerhoff and Italcementi maintain that Italcementi's decision not toexport to Germany was the outcome of a free strategic choice, when one ofItalcementi's representatives stated in a note for his sales director (contesteddecision, recital 39, paragraph 17; documents 33.126/3370 to 3375): ' in Germany... we are committed not to disturb Dyckerhoff directly. Italcementi's conduct vis-à-vis Dyckerhoff was the necessary consequence of its intention to comply, in theirbilateral relations, with the principle of the division of home markets agreed withinthe framework of the WCC, of which both undertakings were members. Thereference in the note to the possibility that Italcementi might assist Sebino to sellpart of its production in Germany cannot hide the commitment given byItalcementi to Dyckerhoff to respect Dyckerhoff's home market. 4585. Sixth, Dyckerhoff, Lafarge and Italcementi claim that the Commission hascompletely misunderstood the functioning and characteristics peculiar to the whitecement market as compared with the grey cement market (limited number ofmanufacturers; higher price of the product; reduced impact of transport costs;greater elasticity of demand with respect to price; substantial demand from non-member countries). 4586. Those arguments must also be rejected. It is evident from recital 7 of thecontested decision that the Commission took the characteristics peculiar to theproduction of white cement (particular production requirements, structure ofsupply, level of cost price and selling price) into consideration before reaching theconclusion that '[w]hite cement has a different market from the grey cementmarket (contested decision, recital 7, paragraph 2, and recital 11, paragraph 1). 4587. In any event, the considerations drawn from the particular features of the whitecement market cannot conceal the anti-competitive purpose of the WCC thatemerges from the analysis in paragraphs 4531 to 4544 above. 4588. Last, it is clear that the producers themselves recognised on various occasions thatthe white cement and grey cement markets were not as compartmentalised andindependent as they would now have the Court believe. 4589. Thus the record of the WCC meeting on 19 and 20 June 1986 (contested decision,recital 39, paragraph 11; document 33.126/9918) states: '[I]t is therefore agreed that a working session of the WCC be held in Brussels on24 July on the subject: What retaliatory measures can be taken to counter apossible attack by Aalborg on our home markets? The measures may also applyto grey cement. 4590. A number of extracts from the record of that working session, which was held on24 July 1986 (contested decision, recital 39, paragraph 12; documents 33.126/9876to 9883), show that when the question of protecting their home markets arose thewhite cement producers had no hesitation in treating the markets for white cementand grey cement in the same way: 'Dyckerhoff reports having lost two customers ... who had been visited byAalborg and had bowed to the Danes' arguments ... In return, they [i.e. Dyckerhoff]visited Ole Stevens Larsen and threatened him with retaliation on the Danish greycement market ... Lafarge: One must not hide one's face. It's difficult to discusswhite cement without taking grey into account ... As Mr Leboeuf [CimentsFrançais] had no mandate to discuss grey cement, the subject will not be discussedtoday, but each member will reconsult its board to find out whether a scenariobased on retaliation in the grey market can be worked out and studied, if notapplied. 4591. Italcementi also accuses the Commission of not having specifically defined thegeographical market for white cement. 4592. However, Italcementi adduces no evidence susceptible of challenging the conclusiondrawn by the Commission in recital 11, paragraph 7, of the contested decisionfollowing its analysis of both the grey cement market and the white cement marketthat 'Europe [was] the relevant [geographic] market, consisting of a set ofjuxtaposed and interdependent markets. System of exchange of information on individual undertakings 4593. CBR, Dyckerhoff, Lafarge and Italcementi put forward a series of arguments aimedat challenging the anti-competitive nature of the cooperation established, in theform of exchanges of information, between the members of the WCC. They claimthat the data provided  or at least those relating to the Community markets were limited and very general, that they contained no confidential trade information (prices actually practised on the markets; rebates and other advantages granted tocustomers, etc.) or information on the output of each individual establishment ofthe manufacturers brought together in the WCC, or reference to the costs oftransport, market exploration or assistance. The information on prices charged onthe Community markets came from the public domain owing to the system of Statecontrol in force in a considerable number of Member States. The exchanges weredesigned solely to compare national markets and overseas markets and the marketsin white cement and grey cement, for the sole purpose of promoting overseasexports. Dyckerhoff further states that this system was not capable ofimplementing the alleged home market rule, since there is no proof that the ruleexisted. Furthermore, no agreement on prices was ever concluded within the WCC. 4594. The argument whereby Dyckerhoff seeks to show that no agreement on prices wasconcluded within the WCC must be rejected forthwith. In recital 62 and Article 7of the contested decision the Commission finds a concerted practice relating to asystem of exchange of individualised information set up at WCC level, not anagreement on prices. 4595. Next, the Court finds that the various arguments put forward by the applicants areunfounded. The numerous documents which the Commission lists in recital 40 ofthe contested decision, which have not been challenged by the applicants, confirmthat during their meetings the members of the WCC periodically and continuouslyexchanged information broken down by individual producer and country on allaspects of their present and future commercial policies, both within and outside theCommunity: installed and future production capacity and actual output; sales onhome markets during the period preceding each meeting and sales forecasts for theperiod following the meeting; current level of export sales and sales forecasts;export prices; home market prices, both for white cement and for grey cement(current prices, but sometimes also adjustments which had not yet becomeapplicable). 4596. By taking part in such meetings the members of the WCC participated in concertedaction contrary to Article 85(1) of the Treaty. By means of those exchanges theydisclosed to each other, continuously and over many years, the commercial conductwhich they were following or which they contemplated following on the Communityand export markets, thus eliminating uncertainty about their present and futurepolicies, with the aim of bringing about conditions of competition that did notcorrespond to normal market conditions (see the case-law cited in paragraph 1852above). 4597. It is apparent from a number of documents that the purpose of those informationexchanges was to coordinate the policies of the members of the WCC with thepermanent intention of imposing collective discipline which would ensure thestability and protection of the home markets in white cement. Thus, in a telex sentto Italcementi on 17 January 1984 (contested decision, recital 39, paragraph 7; document 33.126/2854) Valenciana states: 'It is our intention to continue tocollaborate with Italcementi, Dyckerhoff, Ciments Français, Ciments Lafarge andCBR as we have done thus far, by exchanging information and endeavouring tosecure a stable and profitable market for all the undertakings. In the conclusionswhich it drew from the WCC meeting on 9 May 1985 (contested decision, recital39, paragraph 2; document 33.126/2796) Ciments Français stated: 'Our cooperationhas enabled us to prevent the price aggression observed on the grey cement marketfrom affecting white cement, and this policy must be maintained by increasing theinformation exchanges and preserving contacts between the companies. Finally,at the WCC meeting on 26 May 1986 (contested decision, recital 41; documents33.126/9885 to 9887) it was observed that: 'CBR [confirms] that Aalborg is presenteverywhere on the export markets, always at prices lower than ours. 4598. Moreover, in the light of the extract from document 33.126/2796 reproduced in thepreceding paragraph and in the absence of evidence to the contrary, which it wasfor the parties in question to adduce, the Court finds that the undertakings whichtook part in those information exchanges, which remained active on the market,took account of the information exchanged with their competitors in order todetermine their conduct on that market. Such an assessment is all the morecompelling in view of the fact that the above exchanges took place on a regularbasis over a long period (see, to that effect, Commission v Anic, cited in paragraph270 above, paragraphs 118 and 121, and Hüls v Commission, cited in paragraph 155above, paragraphs 161 and 162). 4599. CBR also seeks to rely on John Deere v Commission, cited in paragraph 420 above(paragraph 51), in support of its argument that the information exchange systemset up within the WCC was lawful. In that regard, it disputes the Commission'sassertion that the white cement market is an oligopolistic market. 4600. However, CBR provides no evidence to support its general criticism of theCommission's description of supply on the cement market (in particular the whitecement market) in recital 12 of the contested decision. Consequently, it cannot usethe judgment in John Deere v Commission, cited in paragraph 420 above, in orderto defend the lawfulness of the periodic information exchange system set up withinthe WCC. 4601. CBR further states that it cannot understand how the same information exchangescould, within the framework of Cembureau, constitute an infringement of Article85(1) of the Treaty only in so far as they made it possible to comply with an anti-competitive agreement, but, within the framework of the WCC, they could inthemselves constitute such infringements. 4602. However, CBR's argument does not undermine the analysis set out in paragraphs4595 to 4598. 4603. In conclusion, the Commission was justified in finding that the system ofcooperation described in recital 40 of the contested decision '[had] the object ofmak[ing] known the conduct which each member plan[ned] to pursue on thevarious Community and export markets, and ... create[d], between the undertakingsparticipating in it, a system of solidarity and reciprocal influence designed toachieve coordination of their economic activities (contested decision, recital 62,paragraph 1). Effect on inter-State trade 4604. CBR, Dyckerhoff, Lafarge and Valenciana claim that the Commission accuses themof conduct which had no effect on trade between Member States. 4605. CBR considers that the Commission has failed to show that competition within theCommunity could have been affected by the collaboration in respect of exportsoutside the Community, as practised within the WCC, which was limited to theexchange of general information and recommendations on prices that were notfollowed up  as the Commission acknowledges (contested decision, recital 40,paragraph 5). 4606. Dyckerhoff relies on a record drawn up by Italcementi of the WCC meetings on6 and 7 May 1982 (contested decision, footnote 185; document 33.126/2881) toshow that the alleged agreements restricting competition and the informationexchanges within the WCC of which the Commission complains had no adverseeffect on intra-Community trade. That record shows significant variations duringthe period 1980 to 1982 in the domestic and export turnover of the variousundertakings referred to in the document. 4607. Lafarge asserts that the exchange of information relating to overseas exports hadno effect on competition within the Community. 4608. Valenciana accuses the Commission of having simply assumed, in recital 63 of thecontested decision, that the WCC's activities had had an impact on inter-Statetrade, without providing further details of or grounds for that allegation. It alsodisputes that trade within the Community actually suffered any harm as a result ofthe WCC's activities. 4609. The arguments put forward by those four applicants must be rejected. 4610. First, it must be pointed out that the Commission devotes two paragraphs of thecontested decision (recital 63, paragraphs 1 and 2) to explaining what led it toconclude that the twofold rule of respect for home markets and the channelling ofexports, on the one hand, and the periodic information exchange system, on the other hand, had affected or, at the very least, been capable of affecting, inter-Statetrade: 'The home market rule and the rule on the channelling of production surpluses forexport to third countries were intended to prevent or restrict marketing betweenMember States: Community trade is therefore directly and appreciably affected. The information exchange system is liable to affect trade between Member Statesto the extent that it contributes to the implementation of agreements and concertedpractices having as their object or effect the prevention or restriction of trade inwhite cement between Member States. Trade between Member States is alsoaffected because each of the undertakings involved in the exchange of informationis induced to define its policies on prices and sales on the basis of those of theother participating producers and, consequently, the natural flows of trade betweenMember States are artificially influenced to an appreciable extent. 4611. The contested decision is not, therefore, vitiated by a failure to provide reasons inthat regard. 4612. Next, it should be pointed out that, in prohibiting agreements and concertedpractices which may affect trade between Member States and which have as theirobject or effect the restriction of competition, Article 85(1) of the Treaty does notrequire proof that such agreements or concerted practices have actually affectedsuch trade, which would moreover be difficult in the majority of cases to establishfor legal purposes, but merely requires that it be established that the agreement orconcerted practice in question was capable of having that effect. The condition thattrade between Member States must be affected is thus satisfied where it is possibleto foresee with a sufficient degree of probability on the basis of a set of factors oflaw and of fact that the agreement or practice found to exist may have aninfluence, direct or indirect, actual or potential, on the pattern of trade betweenMember States (see, to that effect, the case-law cited in paragraph 1986 above). Having regard to the actual object of the WCC (protection of home markets andchannelling of production surpluses to exports to non-member countries) and itsactivities (information exchange system), and to the size of the undertakingsinvolved in the WCC (the principal European white cement manufacturers) and theduration of the practices (from 1982 until 1988), the Commission was justified intaking the view that the WCC's activities were at the very least liable to affectinter-State trade to an appreciable extent, as it states in the contested decision. 4613. Furthermore, the WCC and its activities did actually affect inter-State trade. 4614. Thus Italcementi decided not to export to Germany in view of its undertaking 'notto disturb Dyckerhoff directly [in Germany] (contested decision, recital 39,paragraph 17) (see paragraph 4584 above). 4615. Moreover in its comments on the WCC meeting held on 3 October 1985, (contested decision, recital 39, paragraph 3; document 33.126/9961), CBR states: 'Most white-cement manufacturers have an easy life within their national borders(Italcementi, Ciments Français, Dyckerhoff. The latter are being attacked a littleby Aalborg through Alsen). Respecting the home market does not suit us, because de facto it limits our naturalmarket in the Benelux. 4616. The Italcementi record of May 1982 on which Dyckerhoff relies (see paragraph4606 above) is of no relevance, in so far as the variations in trade which it describesrelate to a period before 6 May 1982, the date taken by the Commission as thestarting point of the infringement established in Article 7 of the contested decision. 4617. It follows from the foregoing analysis (paragraphs 4531 to 4616) that the WCCactivities to which the contested decision refers had an anti-competitive object andwere capable of having an appreciable effect on inter-State trade. The Commissionwas therefore entitled to find in Article 7 of the contested decision that they werecontrary to Article 85(1) of the Treaty. The applicants' participation in the infringements referred to in Article 7 of thecontested decision 4618. As well as disputing the existence of an infringement of Article 85(1) of the Treatywithin the framework of the WCC's activities described in the contested decision,CBR, Dyckerhoff, Valenciana and Italcementi submit a number of arguments todispute their participation in the infringements found in Article 7. 4619. CBR contends that it cannot be accused of having deliberately or negligentlyinfringed Article 85(1) of the Treaty since it was entitled to believe that the WCC'sactivities were lawful in the light of the approach adopted by the Commission in1972 in the 'Cimbel case, relating to an overseas export agreement. 4620. That argument cannot be accepted. As the Commission rightly observes in itsdefence in Case T-25/95, the conclusion of the Cimbel agreement was found to bean infringement and fined (Commission Decision 72/474/EEC of 22 December 1972relating to a proceeding under Article 85 of the EEC Treaty (IV/243, 244, 245 Cimbel) (Journal Officiel 1972 L 303, p. 24)). In any event, CBR, which was afounder member of the WCC and which participated in the various WCC meetingsduring which the home market principle was evoked, recalled or applied, cannottake refuge behind the alleged legitimate expectation derived from the Cimbel caseand maintain that it had every reason to believe that the general objective of theWCC and its activities were lawful. As agreements and practices consisting in sharing the home markets are expressly prohibited by Article 85(1)(c) of theTreaty, CBR must have participated, with full knowledge of the facts, in activitieswhich it could not but be aware were unlawful. 4621. Dyckerhoff emphasises its modest role on the white cement market (2% share ofthe world market; 8% share of the European market). 4622. None the less, that circumstance cannot alter the reality of its participation in theWCC's meetings and unlawful activities, which was established on the basis of theevidence which the Commission set out in recitals 39 and 40 of the contesteddecision. 4623. Dyckerhoff also relies on the size of its export activities (between 20% and 40%of its output), mainly to European States, to show that it did not share theapproach of the undertakings responsible for the various documents on which theCommission based its conclusion that the WCC's basic rule was respect for homemarkets. To its knowledge the home market rule was never referred to at theWCC meetings. Last, its decision not to export to the 'areas of influence of theother European white cement producers was taken deliberately, whollyautonomously and independently of any home market principle, and for strictlyeconomic reasons, having regard to the conditions of competition existing on themarket for that product. 4624. Those arguments must be rejected. 4625. Dyckerhoff was a founder member of the WCC. In that capacity, it necessarilygave a commitment to respect the rule on the protection of the home markets ofthe members of the WCC, which was the basic rule of the WCC. Furthermore, atthe WCC meeting on 9 May 1995, which Dyckerhoff attended, the participantspointed out that 'respecting home markets [was] the sine qua non formembership of the WCC or WCPC(record of the WCC meeting on 9 May 1985;contested decision, recital 39, paragraph 2; documents 33.126/2793 to 2798). Dyckerhoff has provided no evidence that it openly distanced itself from that ruleat that meeting. Consequently, the Commission was right to consider thatDyckerhoff had adhered to the home market rule which prevailed within the WCC(see, to that effect, the case-law cited in paragraph 1353 above). 4626. Dyckerhoff's claims that it exported a significant part of its white cement output toother European States are not supported by any solid evidence. In any event, evensupposing that Dyckerhoff's conduct on the market did not comply with the ruleagreed within the WCC, that circumstance is not such as to relieve it of fullresponsibility for the fact that it participated in the agreement found in Article 7of the contested decision because, at the WCC meetings in which it participated,it never openly distanced itself from that rule, to which it had acceded when theWCC was set up (see, in that regard, Tréfileurope v Commission, cited in paragraph 958 above, paragraph 85, and Case T-310/94 Gruber and Weber v Commission[1998] ECR II-1043, paragraph 130, Case T-311/94 BPB de Eendracht v Commission[1998] ECR II-1129, paragraph 203, Case T-317/94 Weig v Commission [1998] ECRII-1235, paragraph 87, and Mayr-Melnof v Commission, cited in paragraph 897above, paragraph 135). 4627. Valenciana disputes its participation in the unlawful conduct found in Article 7 ofthe contested decision and denies having either adopted or applied the homemarket rule. 4628. First, the home market rule was never adopted or referred to during the WCCmeetings which it attended. Valenciana emphasises that it was not present at eightof the fourteen meetings held by the WCC during the period in issue, eitherbecause it had no interest in the information exchanged or simply because it hadnot been invited to participate. It observes that the Commission cannot show thatValenciana actually received the records of the WCC meetings in which it did notparticipate. Accordingly, the Commission could not find that it adhered to thehome market rule solely on the basis of what was said at those meetings by theother members of the WCC. Valenciana places particular emphasis on an extractfrom CBR's record of the WCC meeting held on 2 October 1986 (contesteddecision, recital 39, paragraph 4; documents 33.126/9874 and 9875), which statesthat 'in SCF's [Ciments Français's] opinion, Spain = as dangerous as Aalborg. In conclusion, Valenciana states that as far as it was concerned the WCC wassimply a meeting place for European white cement exporters where information onexports to non-member countries was exchanged and where questions relating tothe protection of European producers' interests in the face of illegal imports fromnon-member countries were discussed. Last, it points out that it was not a foundermember of the WCC. 4629. That argument must be rejected. 4630. It should be pointed out that, in the words of the record of the WCC meeting of9 May 1985, the commitment to respect home markets had been established as'the sine qua non for membership of the WCC or WCPC (contested decision,recital 39, paragraph 2; documents 33.126/2793 to 2798). The fact that that extractis taken from the record of a meeting in which Valenciana did not participate doesnot deprive it of its probative value vis-à-vis the Spanish undertaking. Sinceadherence to the principle of respect for home markets  and its corollary, theprinciple that production surpluses were to be channelled towards exports to non-member countries, under a general agreement  therefore appears to be acondition of joining the WCC, and since Valenciana does not deny having been amember of that club, it must be concluded that, upon joining, it necessarily gavea commitment to respect the other members' home markets. 4631. Furthermore, the home market rule was referred to at the WCC meeting on 3October 1985, in which Valenciana participated. The note commenting on themeeting subsequently drawn up by CBR states, in the general conclusions, that'[t]he current members abide amongst themselves by a certain set of rules, byvirtue of which 'most white-cement manufacturers have an easy life within theirnational borders (contested decision, recital 39, paragraph 3; documents33.126/9958 to 9961). 4632. It is true, finally, that Valenciana did not attend all the WCC meetings, and thatCiments Français said at the meeting on 2 October 1986 that 'Spain [was] just asdangerous as Aalborg. However, Valenciana continued to participate in the WCCmeetings until the end of the period of the infringement found in Article 7 of thecontested decision (see record of the WCC meeting on 17 December 1987 in Rome(contested decision, footnote 185; documents 33.126/9888 to 9891) and record ofthe WCC meeting on 26 May 1988 in Baden-Baden (contested decision, recital 41;documents 33.126/9885 to 9887)). 4633. The Commission was therefore right to take the view that Valenciana had adheredto the twofold rule of respect for home markets and the concerted channelling ofproduction surpluses outside the Community from 1 January 1986 to 26 May 1988(Article 7). In that regard, Valenciana's claim that it did not receive the recordsof the WCC meetings in which it did not participate is irrelevant. 4634. Valenciana further maintains that the Commission committed an error ofassessment by transforming (contested decision, recital 61, paragraph 4) theconcerted practice relating to respect for home markets into an agreement(concurrence of will), alleged by the Commission to have been formed during theWCC meeting on 21 May 1984, whereas the document on which the Commissionrelies for that purpose relates to the WCC meeting on 9 May 1985, in which theapplicant did not participate. 4635. In fact it must be pointed out that the document on which the Commission reliesis not the record of the WCC meeting on 21 May 1984 but the record of the WCCmeeting on 9 May 1985 compiled by Ciments Français (contested decision, recital39, paragraph 2; documents 33.126/2793 to 2798), more specifically the extract fromthat record which reads '[t]hey point[ed] out that respecting home markets [was]the sine qua non for membership of the WCC or WCPC. That error of fact is ofno consequence, however. Valenciana attended the WCC meeting on 3 October1985 during which the home markets rule was referred to (see note commentingon the meeting drawn up by CBR following the meeting; contested decision, recital39, paragraph 3; documents 33.126/9958 to 9961). As Valenciana has provided noevidence that it expressed any reservation or dissented in any way at that meeting,it must be concluded that it acceded on that occasion to what had then become aconcurrence of will, or an agreement within the meaning of Article 85(1) of theTreaty, having as its object the protection of home markets. In any event, Valenciana's argument cannot hide the fact that when it joined the WCC itsubscribed to the principle of respect for home markets and therefore acceded toan unlawful arrangement which, at the date taken as the starting point of theinfringement in its case (1 January 1986, the date on which Spain acceded to theCommunity), was no longer a concerted practice, but an agreement. 4636. Second, Valenciana claims that it never took part in the measures adopted inimplementation of the rule on not transhipping to home markets which theCommission describes in recital 39, paragraphs 6 to 17, of the contested decision. 4637. Thus, in regard, first, to Aalborg's exclusion from the WCC, Valenciana claims thatit was not present at any of the WCC meetings during which retaliatory or punitivemeasures were considered and/or adopted in respect of Aalborg (meetings of 4January and 2 October 1984, 19 June, 24 July and 2 October 1986). It furtherpoints out, with reference to the documents quoted in recital 39, paragraphs 11 to13, of the contested decision, that certain members expressed the wish thatValenciana should not be associated with the adoption of those measures. Although it was present at the meetings on 21 May 1984 and 3 October 1985, allit did was to make known its opposition to any request by Aalborg to be readmittedto the WCC; however, Aalborg never requested to be readmitted. Valenciana alsopoints out that both meetings in question were held before Spain acceded to theCommunity on 1 January 1986. 4638. It is correct that Valenciana did not participate in the following meetings:  the meeting in January 1984, during which it was agreed to set up the newWCC because it was impossible to continue cooperating with Aalborg(contested decision, recital 39, paragraph 7; documents 33.126/2850 to2852);  the meeting on 2 October 1984, during which the decision not to readmitAalborg to the WCC was confirmed (contested decision, recital 39,paragraph 9; documents 33.126/2815 to 2817);  the meeting on 19 and 20 June 1986, during which it was decided to holda special seminar on 24 July 1986 to consider what retaliatory measuresmight be taken against Aalborg (contested decision, recital 39, paragraph11; documents 33.126/9914 to 9920);  the seminar on 24 July 1986 (contested decision, recital 39, paragraph 12;documents 33.126/2751 to 2755 and 9876 to 9883);  the meeting on 2 October 1986, during which the members of the WCCdecided to respond individually to Aalborg's attacks and to reject Aalborg'srequest to be admitted to the WCPC (contested decision, recital 39, paragraph 13; documents 33.126/9874 and 9875, and documents 33.126/2737to 2739). 4639. None the less, a number of factors show that Valenciana was involved in Aalborg'sexclusion from the WCC and supported the decision to exclude it. 4640. First, at the WCC meeting on 13 September 1983, during which the participantsnoted that Aalborg had increased its production capacity and slashed its pricesdespite the commitment given at the meeting on 31 May 1983, Valencianainformed the other participants that, in the circumstances, it no longer intended toparticipate in WCC meetings, thus displaying its disapproval of the conduct adoptedby Aalborg in breach of the rules in force within the WCC (contested decision,recital 39, paragraph 6; documents 33.126/2855 to 2858). 4641. Then, in Paris on 13 March 1984, it participated in the first meeting of the newWCC, during which the decision temporarily to exclude Aalborg from the WCCwas confirmed (contested decision, recital 39, paragraph 8; documents 33.126/2842to 2844). 4642. Valenciana also participated in the WCC meeting on 21 May 1984, during whichit expressly confirmed that it did not want to see Aalborg readmitted to the newWCC. 4643. Thus the record of that meeting (documents 33.126/2830 to 2832, referred to in thecontested decision, recital 39, paragraph 9) states under the heading '1. Attitudeof the six members to Aalborg/BC/ABZ: 'Mr Clemente informed the members present that he had received no official replyfrom those to whom the letter of 19 March 1984 sent on behalf of the six memberswas sent. A survey of those present shows that none of the members of therestricted WCC wants to have Aalborg back in the committee. VC [Valenciana]is not interested in seeing the Danes readmitted to the WCC, because they exploitthe information obtained to take their decisions. The later they have thatinformation, the better for us. We must not make their task easy. As far as MrBoffarul [Valenciana's representative] is concerned, therefore, it is clear that theWCC should continue without Aalborg. 4644. Finally, Valenciana's intention not to readmit Aalborg to the WCC is confirmed bythe note drawn up by CBR following the WCC meeting on 3 October 1985 inMilan (contested decision, recital 39, paragraph 3; documents 33.126/9958 to 9961),in which Valenciana participated. That note states: 'All the current members areopposed to Aalborg rejoining, since they no longer have any confidence in thecurrent directors at Dansk [Aalborg]. 4645. The fact that all these factors relate to the period prior to 1 January 1986 does notprevent their being taken into consideration for the purpose of establishingValenciana's adherence to the sanction imposed on Aalborg and, accordingly, itsadherence to the rule prohibiting transhipments to home markets, respect for whichwas the sine qua non of membership of the WCC. 4646. In any event, the arguments whereby Valenciana seeks to show that it was notinvolved in Aalborg's exclusion from the WCC cannot refute the findings inparagraphs 4630 to 4632 above that it adhered continuously to the twofold rule ofrespect for home markets and the channelling of production surpluses under ageneral agreement which was in force among the WCC's members. 4647. As regards, second, Blue Circle's and Alsen-Breitenburg's exclusion, Valencianamaintains that it played no part in the adoption of the measures taken within theWCC against those two undertakings. 4648. In that regard, it should be pointed out that although Valenciana was not presentat the WCC meeting in January 1984 at which it was noted that cooperation withBlue Circle and Alsen-Breitenburg was becoming unlikely, in particular becauseboth undertakings had bought from Aalborg in order to supply their foreigncustomers (contested decision, recital 39, paragraph 14; documents 33.126/2850 to2852), it follows from the record of the WCC meeting on 19 and 20 June 1986(contested decision, recital 39, paragraph 11; documents 33.126/9914 to 9920) thatat the meeting in Milan on 3 October 1985 in which it had participated Valencianahad opposed Blue Circle's return to the WCC (documents 33.126/2781 to 2784),and that its opinion was taken into account at the meeting on 19 and 20 June 1986when Blue Circle's return was refused. 4649. In any event, the arguments whereby Valenciana seeks to show that it was notinvolved in Blue Circle's and Alsen-Breitenburg's exclusion from the WCC cannotrefute the findings in paragraphs 4630 to 4632 above that it adhered continuouslyto the twofold rule in force among the WCC's members on respect for homemarkets and the channelling of production surpluses under a general agreement. 4650. As regards, third, relations between Blue Circle and Lafarge, Valenciana relies onthe fact that it was not present at the WCC meeting on 2 October 1984, whenreference was made to those relations. 4651. In fact Valenciana did not participate in the WCC meeting during which referencewas made to the relations between Blue Circle and Lafarge. However, thatcircumstance is not in itself of such a nature as to call in question the evidence thatit participated in the agreement and concerted practices found in Article 7 of thecontested decision, in relation to the rules on respect for home markets and thechannelling of production surpluses to exports to non-member countries. TheCommission's purpose in referring to the relations between Blue Circle and Lafarge was not to show that all the members of the WCC were involved in Lafarge'sdecision to respect the rules in force in the WCC in its relations with Blue Circle,but to illustrate the actual implementation of the home market rule adopted withinthe WCC, inter alia, in the relations between Blue Circle and Lafarge. 4652. As regards, fourth, the relations between Italcementi and Dyckerhoff, Valencianadenies having been in any way involved in this case of the implementation of thehome market rule and points out that the Commission's case relies solely on thecontent of a note drawn up on 23 December 1987 by Italcementi, an undertakingwith which Valenciana had no particular link. 4653. It should once again be pointed out, however, that the Commission's purpose inreferring to the case based on the relations between Italcementi and Dyckerhoffwas not to show that all the members of the WCC were involved in Italcementi'scommitment not to disturb Dyckerhoff in Germany. Its sole purpose was toillustrate the actual implementation of the home market rule adopted within theWCC. Consequently, Valenciana's arguments denying any involvement in theItalcementi-Dyckerhoff 'case described in recital 39, paragraph 17, of thecontested decision cannot refute the findings in paragraphs 4630 to 4632 above thatit adhered continuously to the twofold rule on respect for home markets and thechannelling of production surpluses under a general agreement which was in forceamong the WCC's members. 4654. Third, Valenciana disputes any participation within the WCC in an informationexchange system designed to establish solidarity between the members of the WCC. It observes that some members did not have the same confidence in it as they didin others (CBR note of 24 July 1986; document 33.126/9884). 4655. It must be pointed out, however, that the lack of trust which the members of theWCC had in Valenciana was mainly the result of what was considered to be theunreliable position of its representatives in the WCC (Mr Bofarull and MrManglano) and the fact that 'the Spanish [were] not people who would readily givetheir opinion or their word (see document 33.126/9882, referred to in recital 39,paragraph 12, of the contested decision). The lack of confidence in Valenciana wasmainly expressed during discussions at the special working session of the WCC on24 July 1986 devoted to possible defence strategies against Aalborg (contesteddecision, recital 39, paragraph 12). On the other hand, the documents before theCourt do not reveal that this lack of confidence extended to the quality of theinformation provided by Valenciana at the WCC meetings. 4656. Furthermore, the words used by Valenciana in its telex of 17 January 1984 toItalcementi (contested decision, recital 39, paragraph 7; document 33.126/2854)show that it was willing to continue to participate with the other members of theWCC in the information exchange system established within the WCC. 4657. In any event, Valenciana does not deny having periodically provided and received,during the period of the infringement found in regard to it in Article 7 of thecontested decision, information on the various topics covered by the cooperationestablished within the WCC. 4658. The Commission was therefore entitled to find that Valenciana participated in thecontinuous concerted practice relating to exchanges of information referred to inArticle 7 of the contested decision. 4659. In conclusion, the Commission was entitled to find that Valenciana participated inthe various infringements found in Article 7 in relation to the WCC. None the less,it will be necessary, when examining the legality of Article 10 in regard to the finesimposed in respect of the infringements found in Article 7, to assess the merits ofthe alternative arguments put forward by Valenciana regarding its lesserinvolvement in the unlawful conduct found in that article (see paragraphs 4992 and4997 to 5004 below). 4660. Italcementi seeks to absolve itself by showing its marginal interest in intra-Community exports of white cement and that it did not have any particular interestin protecting itself against any exports into Italy. 4661. That argument must be rejected. 4662. Italcementi was a founder member of the WCC, a 'club of European exportingwhite cement manufacturers (contested decision, recital 38, paragraph 1;documents 33.126/4454, 4466, 4467 and 9962 to 9966), which contradicts its claimedlack of interest in intra-Community trade in white cement. 4663. Next, the internal Italcementi note of 23 December 1987 (contested decision, recital39, paragraph 17; documents 33.126/3370 to 3375) reflects its interest in certainCommunity markets, in particular Germany, where it was, however, committed notto disturb Dyckerhoff directly, in accordance with the principle of non-transhipmentto the home markets of WCC members (see paragraph 4584 above). 4664. Last, it is apparent from the documents presented by the Commission in thecontested decision that Italcementi attended various WCC meetings at which theprinciples of respect for home markets and the channelling of exports to non-member countries were agreed and referred to. Italcementi emphasised, in itsrecord of the WCC meeting on 2 October 1986, that 'Mr Leboeuf [had] seized theopportunity to draw attention to respect for home markets (contested decision,recital 39, paragraph 4; documents 33.126/2737 to 2739). Italcementi has adducedno evidence that it openly distanced itself from the anti-competitive objective whichwas the WCC's driving force. Nor has it adduced evidence to show that thecooperation within the WCC did not influence its conduct on the market.Accordingly, the Commission was entitled to take the view that Italcementi had manifested its accession to and support for the various agreements and unlawfulpractices found in Article 7 of the contested decision (see the case-law cited inparagraphs 1353 and 1671 above). 4665. Italcementi further maintains that it did not play a major role in dealing with theproblem posed by Aalborg and that it even opposed Aalborg's exclusion from theWCPC, as may be seen from the letter from its representative to Aalborg's salesdirector dated 11 August 1986 (document 33.126/2756). 4666. However, the document submitted by Italcementi shows at the most that it was notin favour of Aalborg's exclusion from the WCPC, which is confirmed by the recordof the WCC meeting on 24 July 1986 compiled by CBR (contested decision, recital39, paragraph 12; document 33.126/9883), which states that '... as regards theDanes' and Blue Circle's membership of the WCPC, Mr Clemente [Italcementi]reports that his company is not in favour of their being excluded but will none theless support the decision of the majority, and also by Italcementi's record of theWCC meeting on 2 October 1986 (contested decision, recital 39, paragraph 4;documents 33.126/2737 to 2739). 4667. On the other hand, those documents do not show that Italcementi took a stand onAalborg's exclusion from the WCC. 4668. On the contrary, it follows from the documents to which the Commission refers inrecital 39, part (a), of the contested decision that Italcementi participated in thevarious WCC meetings in 1983 and 1984 during which the members of the WCCdecided to exclude Aalborg from the WCC, first on a temporary basis and thenpermanently, and also in the WCC meetings in 1986 during which retaliatorymeasures against Aalborg were considered. Among those documents, referenceshould be made to the extract from the record of the WCC meeting on 21 May1984 (documents 33.126/2830 to 2832 mentioned in recital 39, paragraph 9, of thecontested decision), which reports the position of Mr Clemente, Italcementi'srepresentative in the WCC, as follows: 'Mr Clemente fully agrees with themembers present and personally considers it inappropriate to have Aalborg backin the WCC. 4669. Italcementi was therefore fully involved in the decisions which the WCC tookagainst Aalborg. In any event, its arguments on this point cannot refute thefindings in paragraphs 4662 to 4664 above that it adhered continuously to thetwofold rule on respect for home markets and the channelling of productionsurpluses under a general agreement which was in force among the WCC'smembers. Time bar of matters found in Article 7 of the contested decision 4670. Dyckerhoff asserts that, as the decision ordering the investigations was notified inApril 1989, it must be concluded, pursuant to Article 1(1)(b) of RegulationNo 2988/74 (see paragraph 1964 above), that matters before 20 April 1984 are timebarred. 4671. Italcementi observes that in Article 7 of the contested decision the Commissioncomplains, in particular, that the members of the WCC participated in a concertedpractice and in an agreement relating to non-transhipment to home markets. Itconcludes from the Commission's presentation of the facts in recital 39 of thecontested decision that the activities of the members of the old WCC constitutedthe concerted practice found, while those of the members of the new WCC arosefrom the agreement. Italcementi maintains that these were two quite separateinfringements that should not have been classified by the Commission as a singleand continuous infringement (contested decision, recital 61, paragraph 4). Thefacts relating to the old WCC, that is the facts prior to January 1984, musttherefore be declared time barred, in accordance with Article 1 of RegulationNo 2988/74. 4672. Those arguments cannot be accepted. 4673. Contrary to what Italcementi maintains, the Commission never considered that theconcerted practice relating to non-transhipment to home markets had become anagreement when the new WCC succeeded the old one in January 1984. In thecontested decision the Commission states that the transition from a concertedpractice to an agreement took place at the WCC meeting during which themembers pointed out that respecting 'home markets was the 'sine qua non forparticipation in the WCC and the WCPC (see contested decision, recital 39,paragraph 2, and recital 61, paragraph 4; documents 33.126/2793 to 2798). 4674. In that regard, it follows from the documents to which the Commission refers inrecitals 38 to 41 of the contested decision that all the facts found in connection,first, with a concerted practice and then with an agreement were the consequenceof a continuous infringement within the meaning of Article 1(2) of RegulationNo 2988/74, which throughout the entire period of the infringement found inArticle 7 of the contested decision had been guided by the same anti-competitivepurpose: respect for home markets and the channelling of production surplusesoutside the Community. Thus the extract quoted in the preceding paragraph fromthe record of the WCC meeting on 9 May 1985, on which the Commission basesits conclusion that the concerted practice became an agreement, showsunequivocally that one and the same anti-competitive purpose inspired both theconcerted practice up to that date and the concurrence of wills thereafter. The factthat the Commission classified that arrangement as a concerted practice and thenas an agreement does not alter the fact that the infringements found in Article 7of the contested decision continued from 6 May 1982 until 26 May 1988;accordingly, for the purpose thereof time began to run on 26 May 1988, in accordance with Article 1(2) of Regulation No 2988/74, and had not expired whenthe Commission commenced its investigations in April 1989. Access to the file 4675. Neither Valenciana nor Italcementi claims not to have had access during theadministrative procedure to the incriminating evidence referred to in recitals 38 to41 of the contested decision in connection with the infringements found in Article7. Dyckerhoff's allegations in that regard have been rejected (see paragraphs 4573,4575, 4576, 4579, 4582 and 4583 above). 4676. As regards incriminating evidence, Valenciana and Italcementi make a series ofobservations based on the documents which they were able to consult following themeasures of 2 October 1996 and 18 and 19 June 1997 (see paragraphs 164 and 168above). 4677. In its submissions of 10 February 1997 Valenciana refers to the statistics of theSFIC on French cement imports for 1985 (documents 33.126/14956 to 14962),which show that Spanish producers exported 36 tonnes of white cement to theFrench market in 1985. Those statistics show that the German, Italian and Britishundertakings did likewise. Furthermore, SFIC statistics on French cement importsfor 1987 (document 33.126/14964) show that Germany, Italy, the United Kingdomand the Netherlands also exported white cement to the French market in 1987. Those documents, all of which provide evidence of the existence of some exportsof white cement to the Community countries, therefore show that it was not theWCC's object to protect its members' home markets. 4678. It should be pointed out, however, that in the SO (paragraphs 21 to 23 and 63 to65) and the contested decision (recitals 38 to 41 and 61 to 63) the Commissionrelied not on statistics showing the low level of trade in white cement betweenMember States of the Community but on specific documentary evidence toestablish the infringements found in Article 7 of the contested decision and theparticipation of Valenciana, among others, in those infringements. 4679. Moreover, nowhere in the SO or the contested decision did the Commission claimthat the infringements committed within the framework of the WCC had stoppedall exports of white cement in the Community. It merely observed that the objectof the WCC was to protect home markets. 4680. The SFIC documents to which Valenciana had access following the measure of 2October 1996 are therefore not of such a nature as to shed a different light on thedocumentary evidence used by the Commission in finding not only that theinfringements referred to in Article 7 of the contested decision existed but also thatValenciana participated in them. They merely illustrate the existence of white cement exports within the Community and do not identify the individualundertakings behind such exports. As regards, particularly, Valenciana'sparticipation in the infringements found within the WCC, the SFIC documentsrelating to 1985 (documents 33.126/14956 to 14962) mention imports of whitecement from Spain amounting to 36 tonnes. However, Valenciana has providedno evidence that they were its own exports. Furthermore, the SFIC documentrelating to 1987 (document 33.126/14964) no longer mentions Spanish exports toFrance. 4681. Consequently, the SFIC statistics on French cement imports for 1985 and 1987would not have proved useful to Valenciana's defence against the objection upheldin Article 7 of the contested decision. 4682. In its submissions of 22 December 1997 Valenciana again refers to an internalCiments Français memorandum (documents 33.126/4464 and 4465). Thatmemorandum confirms that it did not apply any home market rule. First, it followsfrom the memorandum that Valenciana exported white cement to the Communitymarket. Second, the memorandum shows that Valenciana began to participate inthe WCC's activities when the members of the WCC had already decided toexclude Alsen-Breitenburg, Aalborg and Blue Circle. Valenciana therefore did notparticipate in any of the actions in respect of which the Commission concluded(contested decision, recital 61, paragraph 3): 'Any infringement of the rule waspenalised. 4683. The Court points out that the memorandum states, in the case of Valenciana,'500 KT capacity and, for Spain, '350 to 400 KT, with the reference 'homemarket. However, there is no reason to conclude that the second reference is toValenciana's exports to Community countries. Furthermore, any comments whichValenciana might have been able to make during the administrative procedure onthe basis of documents 33.126/4464 and 4465 to dispute its participation in themeasures that excluded Aalborg, Blue Circle and Alsen-Breitenburg from the WCCcould not have refuted the findings in paragraphs 4639 to 4643 and 4648 above tothe effect that Valenciana was involved in those measures. In any event, theevidence now adduced by Valenciana is not of such a nature as to shed a differentlight on the specific documentary evidence (see paragraphs 4630 to 4632 above)which shows that Valenciana adhered, on the white cement market, to the principleof non-transhipment to home markets and the channelling of production surplusesreferred to in Article 7 of the contested decision. On the contrary, the internalCiments Français memorandum (documents 33.126/4464 and 4465) whichValenciana puts forward merely confirms the Commission's findings in the SO andthe contested decision, since it states that the principle of the WCC was to 'exportexcess production and 'not to disturb home markets. It also confirms thatValenciana participated in the WCC meetings: 'In theory, Manglano is boss; inpractice Bofarull is. 4684. It follows that the internal Ciments Français memorandum (documents 33.126/4464and 4465) would not have proved useful to Valenciana's defence against thecomplaints referred to in Article 7 of the contested decision. 4685. Last, in its memorandum of 22 December 1997 Valenciana refers to an internalCBR memorandum of 4 May 1987 (documents 33.126/10209 to 10211) as showingthat it exported white cement to the Community market. That proves that it neverapplied the rule on the protection of home markets in the white cement market. 4686. It should be pointed out, however, that the memorandum in question merely statesthat 'Valenciana and Aalborg have continued to produce tonnage which theyexport in bulk. It does not say that those exports were destined for Europeanmarkets or, in particular, for the markets of the other WCC members. In any event,the comments which Valenciana might have been able to make on the basis of thatmemorandum would not have been of such a nature as to shed a different light onthe specific documentary evidence on which the Commission properly relied inorder to find, in Article 7 of the contested decision, that the Spanish undertakinghad adhered to the rule on non-transhipment to home markets which was thenapplied by the members of the WCC. 4687. In its observations of 26 November 1997 Italcementi claims that a series of CBRdocuments show that CBR sold its white cement output in other countries of theCommunity (document 33.126/8519 et seq. (sic), in particular 8540, 8969, 8970,8424, 8425 and 8431). Other documents (documents 33.126/6938 and 6943, anddocument 33.322/2017) show that the ways of dealing with intra-Community importsof white cement which were contemplated consisted in adopting retaliatorymeasures or other immediate means of action, but nowhere is there any referenceto an alleged home market principle. Those documents would therefore haveenabled Italcementi to dispute the existence or, at any rate the effectiveness, of ahome market principle in the white cement sector. 4688. It should be pointed out that a number of documents to which Italcementi refers(documents 33.126/8519 and 8540, and document 33.322/2017) relate to matterswhich occurred after the period of the infringement (May 1982-May 1988) foundby the Commission in the contested decision. Those documents therefore have norelevance to the complaints addressed to Italcementi within the context of theWCC. 4689. In any event, the comments which Italcementi could have made on the basis of thedocuments on which it relies, had they been available to it during the administrativeprocedure, would not have been of such a nature as to shed a different light on thespecific documentary evidence on which the Commission relied in order to establishthe existence of a principle of non-transhipment to home markets of the membersof the WCC, which included Italcementi, and the application of that principle in a number of specific cases (SO, paragraphs 21 to 23, 63 and 64; contested decision,recitals 38 to 40 and 61 to 63). 4690. Last, the Commission has never claimed that the home market principle applicableamong members of the WCC in the white cement market had the effect ofeliminating all inter-State trade in white cement, even between the home marketsof the WCC members. It imposed a penalty on the WCC because of its anti-competitive object (contested decision, recital 61, paragraph 1) and stated that ithad direct evidence that the principle had been applied on various occasions andthat certain members of the WCC had been penalised for infringing the rule(contested decision, recital 61, paragraph 3). 4691. In conclusion, none of the comments by Valenciana and Italcementi examined inparagraphs 4676 to 4690 above would have had even a small chance of altering theoutcome of the administrative procedure. Those applicants have therefore failedto show, on this point, that there was an infringement of their rights of defenceduring the administrative procedure. General conclusions 4692. In the light of all the foregoing (see paragraphs 4519 to 4691 above), theCommission was entitled to find in Article 7 of the contested decision that'[Italcementi], [Dyckerhoff], [Lafarge], [Ciments Français] and [CBR], from 6 May1982 to 26 May 1988, and [Valenciana] from 1 January 1986 to 26 May 1988,infringed the provisions of Article 85(1) of the EC Treaty by participating, withinthe framework of the WCC, in the concerted practice and agreement relating tonon-transhipment to home markets, in the continuous concerted practice relatingto the channelling of production surpluses for export to third countries, and in acontinuous concerted practice relating to exchanges of information on theproduction capacities, output, domestic and export sales, domestic prices for whiteand grey cement and export prices of individual undertakings. 4693. All the pleas examined must therefore be rejected.                                                                     XIV  The plea alleging that the order in Article 8 of the contested decision isunlawful 4694. In Article 8 of the contested decision the Commission directs 'the undertakingsspecified in Articles 1 to 7 [to] forthwith bring the infringements referred to inthose articles to an end (if they have not already done so) and [to] henceforthrefrain, in relation to the markets for grey cement and white cement, from anyagreement or concerted practice which may have the same or similar object,including any exchange of confidential commercial information designed to monitor the performance of any express or tacit agreement or any concerted practiceinvolving the sharing of markets in the Community. 4695. The lawfulness of that order is contested by FIC (T-30/95), alleging errors of factand of law, by Aalborg (T-44/95), alleging infringement of Article 85(1) of theTreaty, and Halkis (T-104/95), alleging infringement of Articles 85(1) and 190 ofthe Treaty. 4696. FIC requests the Court to confirm that the order in question does not relate to itand does not preclude an exchange of statistics with Cembureau. The Court shouldtherefore find that the Commission implicitly acknowledges that the associationsthemselves did not commit infringements, which would be at variance with theCommission's decision to attribute to them responsibility for the infringementsreferred to in the contested decision and to impose a separate fine on them. If, onthe other hand, Article 8 is held to relate to FIC, it should be annulled because theCommission has not explained the reasons which led it to characterise FIC as an'undertaking. 4697. FIC states that the order is directed specifically at the statistical work ofCembureau and, therefore, of the trade associations, and that it calls that work intoquestion for the future even though the Commission has not explained why itprohibited activities which are nevertheless in conformity with the Commission'sprevious decisions and the case-law in that area. 4698. The Court finds that the order in Article 8 of the contested decision is not in factaddressed to the associations of undertakings. Nor are they referred to in therecital relating to that order (recital 64). Such a finding does not, however, affectthe Court's analysis set out in paragraphs 1343 to 1372, 1400, 1401, 1458 to 1755and 4063 to 4065 regarding the correctness of the Commission's decision findingthat FIC participated in the infringements referred to in Articles 1 and 2(1) and (2)of the contested decision. 4699. Moreover, as the Commission confirmed during the written procedure in Case T-30/95, Article 8 of the contested decision does not prohibit exchanges of statistics,first, between the member associations of Cembureau and, second, between thosemembers and Cembureau inasmuch as those exchanges are not designed tofacilitate the monitoring and/or implementation of agreements or concertedpractices having the same or similar object to that of the infringements to which thecontested decision refers. 4700. Aalborg considers that the order in Article 8 of the contested decision is so generalthat it does not constitute a formal decision for the purposes of Regulation No 17(see paragraph 2 above). It adds that it is impossible to comply with that orderbecause the order does not indicate how it can withdraw from an agreement to which it is not a party. Halkis asserts that it cannot be ordered to put an end toinfringements which it has never committed. 4701. The Court points out that, by virtue of Article 3(1) of Regulation No 17, where theCommission finds that there is an infringement, inter alia, of Article 85(1) of theTreaty, it may require the undertakings concerned to bring the infringement to anend. 4702. Recital 64 of the contested decision expressly refers to that provision of RegulationNo 17. 4703. It then states as follows: 'The great majority of the undertakings have denied most of the infringements ofArticle 85(1). Although a fairly limited number of undertakings have informed theCommission that they have taken steps to prohibit their staff from participating inmeetings or having any contacts with the representatives of the other undertakingson business matters, the Commission is not certain that the infringements describedin recitals 45, 46, 47, 49, 50, 53, 55, 56, 61 and 62 have in fact ever ceased.Similarly, the Commission is not certain that the concerted practices within theEPC are not continuing under the new CDICT Committee. The Commission must therefore not only find that infringements have beencommitted, but also require the undertakings to terminate them. 4704. It is settled law that Article 3(1) of Regulation No 17 may be applied so as toinclude an order directed at bringing an end to certain acts, practices or situationswhich have been found to be unlawful but also at prohibiting the adoption ofsimilar conduct in the future (see, inter alia, PVC, cited in paragraph 734 above,paragraph 1249). 4705. Moreover, since Article 3(1) of Regulation No 17 is to be applied according to thenature of the infringement found, the Commission has the power to specify theextent of the obligations on the undertakings concerned in order to bring aninfringement 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 (Joined Cases C-241/91 P andC-242/91 P RTE and ITP v Commission [1995] ECR I-743, paragraph 93; PVC,cited in paragraph 734 above, paragraph 1250). 4706. In Article 8 of the contested decision the Commission directs the undertakingsspecified in Articles 1 to 7 forthwith to bring to an end the infringements found inthose provisions. It then directs them to refrain in future, in relation to themarkets for grey cement and white cement, from any agreement or concertedpractice which may have the same or similar object, including any exchange of confidential commercial information designed to monitor the performance of anyexpress or tacit agreement or any concerted practice involving the sharing ofmarkets in the Community. 4707. Such directions clearly fall within the Commission's powers under Article 3(1) ofRegulation No 17. 4708. The Commission was entitled to find that on the markets for grey cement andwhite cement there was a general agreement that there should be no transhipmentto home markets and that there was a series of measures intended to ensure thatthat agreement, including the exchanges of confidential commercial information,would be applied. 4709. With regard specifically to Aalborg, the Commission was fully entitled to find thatit participated in the Cembureau agreement referred to in Article 1 of thecontested decision and in the measures implementing that agreement referred toin Article 2(1) and (2) (specific and periodic exchanges of information on prices)and Article 4(1) and (3)(a) (agreement on the setting-up of the ETF and concertedpractices designed to cause Calcestruzzi to cease being a customer of the Greekproducers). As to Halkis, the Commission was fully entitled to find that itparticipated in the Cembureau Agreement and in the concerted practice of theEPC referred to in Article 6 of the contested decision. 4710. In the light of those matters, it is clear that the obligations imposed on Aalborg andHalkis by Article 8 of the contested decision do not exceed what is appropriate andnecessary to restore compliance with the rules infringed. 4711. The arguments of Aalborg and of Halkis must therefore be rejected. 4712. It follows from the whole of the foregoing that the Commission, in adopting Article8 of the contested decision, did not exceed the powers conferred on it by Article3(1) of Regulation No 17. 4713. The plea that the order is unlawful must therefore be rejected.                                                                     Alternative claims seeking the cancellation or reduction of the fines 4714. The fines imposed by the Commission on the recipients of the contested decisionare set out in Articles 9 and 10 thereof:  Article 9 sets out the fines 'imposed on the associations and undertakingsconcerned, in respect of the infringement found in Article 1, which was putinto effect, in particular, by the conduct set out in Articles 2, 3, 4, 5 and 6, that is to say, the fines in respect of the infringement associated with theCembureau agreement found to exist in relation to the grey cement market;  Article 10 sets out the fines 'imposed on the undertakings named herein inrespect of the infringements found in Article 7, that is to say, the fines inrespect of the infringement committed on the white cement market in thecontext of the WCC. 4715. The grounds relating to the imposition of those fines are set out in recital 65 of thecontested decision. 4716. All the applicants submit alternative claims seeking cancellation or reduction of thefines imposed. 4717. As a result of the Court's conclusions in paragraphs 478 to 488 above, there is nolonger any need to examine the claims submitted by Cembureau, FIC, VNC, SFIC,BDZ, BCA, Oficemen, ATIC and AGCI. 4718. Since the participation of ENCI, Cedest, Alsen-Breitenburg, Nordcement, Rugby,Castle, Heracles and Titan in the infringement referred to in Article 1 of thecontested decision has not been established (see paragraphs 4074 to 4079 above),Article 9, which links the fine to that infringement as regards the grey cementmarket (see paragraph 4714 above), must be annulled so far as concerns thoseundertakings. Since they are not affected by Article 10, their alternative claimsseeking cancellation or reduction of their fines are thus devoid of purpose. 4719. Although it has been established that Buzzi participated in the three concertedpractices referred to in Article 3(1) of the contested decision (see paragraphs 1819to 2035 above), it has not been proven that its participation in those concertedpractices constituted a sign of its accession to the Cembureau agreement referredto in Article 1 (see paragraphs 4108 to 4113 above). So far as concerns the marketfor grey cement, the Commission decided, in Article 9, to impose a fine forparticipation in the Cembureau agreement alone, rather than to impose, as it couldhave done, a separate fine for each of the infringements referred to in Articles 1to 6 (see paragraph 4714; see also recital 65, paragraph 8). Article 9 musttherefore be annulled as against Buzzi. Since Buzzi is not concerned by Article 10,which relates to the fines imposed in respect of the finding of an infringement onthe market for white cement, there is no longer any need to examine its alternativeclaims seeking cancellation or reduction of its fine. 4720. The arguments put forward by the other applicants, namely CBR (T-25/95),Ciments Luxembourgeois (T-34/95), Dyckerhoff (T-35/95), Vicat (T-37/95), CimentsFrançais (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95),Unicem (T-50/95), Valenciana (T-52/95), Asland (T-55/95), Uniland (T-58/95), IrishCement (T-60/95), Cimpor (T-61/95), SECIL (T-62/95), Italcementi (T-65/95), Holderbank (T-68/95), Hornos Ibéricos (T-69/95), Aker (T-70/95), EUROC(T-71/95), Cementir (T-87/95), Blue Circle (T-88/95) and Halkis (T-104/95), maybe broken down, essentially, into 13 pleas in law or series of pleas:  inadequate or contradictory statement of reasons in the contested decisionas regards the fines;  infringements of Article 190 of the Treaty, Article 15(2) of RegulationNo 17, and the principle of equal treatment, inasmuch as the Commissionimposed a single fine for the group of infringements found in relation to thegrey cement market;  infringements of Article 190 of the Treaty, Article 15(2) of RegulationNo 17, and the principle of proportionality in the assessment of theintentional nature of the infringements;  infringement of Regulation No 2988/74 on limitation periods;  infringements of Article 190 of the Treaty, Article 15(2) of RegulationNo 17, the principles of equal treatment and proportionality, and manifesterrors of assessment as regards the duration of the infringement found inrelation to the grey cement market;  infringements of Article 15(2) of Regulation No 17 and the principle ofproportionality so far as concerns the duration of the infringement found inrelation to the white cement market;  infringements of Article 190 of the Treaty, Article 15(2) of RegulationNo 17, the principles of proportionality and equal treatment, and manifesterrors of assessment in assessing the gravity of the infringement found inrelation to the grey cement market;  infringements of Article 190 of the Treaty, Article 15(2) of RegulationNo 17, the principles of proportionality and equal treatment, and manifesterrors of assessment in assessing the responsibility of individual undertakingsin respect of the infringement found in relation to the grey cement market;  infringements of Article 190 of the Treaty, Article 15(2) of RegulationNo 17 and of the principle of proportionality in assessing the responsibilityof individual undertakings in respect of the infringement found in relationto the white cement market;  infringements of Article 15(2) of Regulation No 17, the principles ofproportionality and equal treatment, and manifest errors of assessment as regards the turnover taken into account for the purpose of calculating thefines;  infringements of Article 15(2) of Regulation No 17 and the principles ofequity, proportionality and equal treatment in relation to the fixing of thefines in ecus and the choice of conversion rate;  infringements of various general principles of Community law;  infringement of rights of the defence owing to incomplete access to theCommission file during the administrative procedure. 4721. Not all of those pleas in law are relied upon by each of the applicants mentionedin the preceding paragraph. When the Court examines each plea it will indicatewhich applicants have raised it. I  Plea alleging inadequate or contradictory statement of reasons in the contesteddecision as regards the fines 4722. First, Dyckerhoff, Ciments Français, Heidelberger, Aalborg, Asland, Irish Cement,SECIL, Italcementi, Holderbank, Hornos Ibéricos, Aker, EUROC, Cementir, BlueCircle and Halkis submit that the statement of reasons for the fines in thecontested decision is insufficient. The information provided in recital 65 is general,vague and insufficiently detailed. It does not explain the factual or legalconsiderations, the method or the basis of calculation  in particular the turnover(basis of assessment, year, rate of conversion into ecus) and the rate of the fine adopted in respect of each undertaking. Italcementi, Holderbank, Hornos Ibéricosand Cementir state that the only information available in that respect comes fromthe statements made by Mr Van Miert, Member of the Commission responsible forcompetition policy, at a press conference held on the day on which the contesteddecision was adopted. Such information does not, however, redress the failure toprovide a statement of reasons. Cementir adds that, even in the light of Mr VanMiert's statements, it is impossible for it to discern with precision the factors andcalculation criteria used by the Commission when determining the fines. BlueCircle states that the failure to provide reasons cannot be cured by any clarificationwhich the Commission might be called upon to provide at the request of the Court. 4723. The abovementioned applicants claim that, on reading the arguments contained inrecital 65 of the contested decision, neither they nor the Court are able to verifywhether the fines imposed are lawful, proportionate and non-discriminatory. 4724. Asland adds that the lack of transparency of the contested decision is made yetworse by the fact that the Commission refused to send it the recording of the pressconference. 4725. The Court points out that the statement of reasons required by Article 190 of theTreaty, which is an essential procedural requirement within the meaning of Article173 thereof, must be appropriate to the act at issue and must disclose in a clearand unequivocal fashion the reasoning followed by the institution which adoptedthe measure in question in such a way as to enable the persons concerned toascertain the reasons for the measure and to enable the competent Communitycourt to exercise its power of review. The requirements to be satisfied by thestatement of reasons depend on the circumstances of each case, in particular thecontent of the measure in question, the nature of the reasons given and the interestwhich the addressees of the measure, or other parties to which it is of direct andindividual concern, may have in obtaining explanations. It is not necessary for thereasoning to go into all the relevant facts and points of law, since the questionwhether the statement of reasons meets the requirements of Article 190 of theTreaty must be assessed with regard not only to its wording but also to its contextand to all the legal rules governing the matter in question (see, in particular,Commission v Sytraval and Brink's France, cited in paragraph 469 above, paragraph63). 4726. Although, in the case of a decision imposing fines on several undertakings orassociations for an infringement of Community competition rules, the scope of theduty to state reasons must be assessed inter alia in the light of the fact that thegravity of the infringement depends on a large number of factors, such as theparticular circumstances of the case, its context and the dissuasive effect of fines,no binding or exhaustive list of the criteria to be applied has been drawn up (SPOv Commission, cited in paragraph 483 above, paragraph 54). The Commission hasa discretion when determining the amount of each fine, and it cannot be requiredto apply a precise mathematical formula for that purpose. 4727. In the present case, the Commission sets out in recital 65 of the contested decisionthe factors taken into account in order to determine the amount of the fines. 4728. It explains (paragraphs 1 and 2) the reasons which lead it to consider that theinfringements found in relation to the grey cement and white cement markets werecommitted intentionally within the meaning of Article 15(2) of Regulation No 17. 4729. It explains (paragraph 4) the duration of the infringement taken into account indetermining the fines imposed. It specifies the circumstances which lead it to findthat some of the addressees of the contested decision participated in theinfringement over a shorter period. 4730. It sets forth (paragraphs 5 and 6) the factors taken into account in order todetermine the general amount of the fines, having regard to the gravity of theinfringement constituted by the Cembureau agreement. It refers to five factorswhich led it to conclude that the infringement was of particular gravity. It asserts nevertheless that it has taken account of the difficult situation in which the cementindustry found itself during the period under consideration. 4731. After summarising, for each addressee of the contested decision, the factors onwhich it relied in finding its participation in the Cembureau agreement (paragraph3), the Commission sets out the criteria used to make the amount of the fineimposed on the undertakings reflect their degree of responsibility in respect of thatagreement (paragraph 9). On the basis of those criteria, it draws a distinctionbetween two categories of undertaking. The first category includes those which itdeems to bear greater responsibility on the ground that they 'participated in theCembureau agreement or principle through accession to it and/or application of themeasures and arrangements agreed to supplement the agreement ... and havingdirect effects tending to partition home markets (same paragraph, subparagraph(a)). The second category contains those which 'bear a lesser responsibility forreasons which the Commission specifies (same paragraph, subparagraph (b)). Eachundertaking is allocated to a sub-category defined by the Commission within eachof those two categories. 4732. So far as concerns the infringement relating to the white cement market, theCommission states (paragraph 11) that it has taken account of the fact that it wasserious as a whole and that all the undertakings concerned played an importantrole. 4733. The Court finds that, in the light of the facts and the legal assessment put forwardin respect of each addressee of the contested decision, recital 65 contains anadequate and relevant explanation of the three factors (intentional or negligentacts; gravity; duration) which Article 15(2) of Regulation No 17 requires to betaken into account when the Commission determines the amount of the fine. 4734. It is indeed desirable that in order to enable undertakings to define their positionin full knowledge of the facts they should be able to determine in detail, inaccordance with such system as the Commission might consider appropriate, themethod of calculating the fine imposed upon them in a decision finding aninfringement of the Community competition rules, without their being obliged, inorder to do so, to bring court proceedings against the decision (Tréfilunion vCommission, cited in paragraph 223 above, paragraph 142). 4735. That applies a fortiori where, as here, the Commission has used detailedarithmetical formulas to calculate the fines. In such a case it is desirable that theundertakings concerned and, if need be, the Court should be in a position to checkthat the method employed and the steps followed by the Commission are free oferror and compatible with the provisions and the principles applicable in regard tofines, and in particular with the principle of non-discrimination (see, in particular,Thyssen Stahl v Commission, cited at paragraph 2062 above, paragraph 609). 4736. Such calculations do not, however, constitute an additional a posteriori statementof reasons for the contested decision, but merely translate into figures the criteriaset out in it that are capable of being quantified (Thyssen Stahl v Commission, citedat paragraph 2062, paragraph 610, and PVC, cited at paragraph 734 above,paragraph 1181). 4737. Pursuant to Articles 64 and 65 of its Rules of Procedure it is for the Court of FirstInstance to ask the Commission, if the Court considers it necessary in order toexamine the applicants' pleas, for specific explanations of the various criteriaapplied by the Commission and referred to in the contested decision (PVC, citedat paragraph 734 above, paragraph 1182). 4738. In the present case, the Court asked the Commission, by a written question in June1998, to provide it with details of the calculation of the fines imposed on variousundertakings to which the contested decision was addressed. In July 1998 theCommission sent the information requested. 4739. Consequently, the Court must reject the applicants' argument that the contesteddecision did not adequately state reasons concerning the criteria taken into accountfor the purposes of determining the fine. 4740. Secondly, Aalborg claims that, in the contested decision, the Commission did notanswer the argument which it had raised during the procedure as to the time-limiton proceedings in respect of events occurring before 27 November 1986. 4741. However, in recital 65, paragraph 4, of the contested decision, the Commissiontakes the view that Aalborg participated uninterruptedly from 14 January 1983onwards in the infringement relating to the Cembureau agreement for which finesare imposed in Article 9, adding that it had no certainty, at the time when thecontested decision was adopted, that the infringement had ever ceased. It couldnot therefore establish a date for the end of the infringement. To its mind, thelimitation period laid down in Article 1 of Regulation No 2988/74 (see paragraph1964 above) had therefore not even begun to run when the contested act wasadopted. 4742. Such an analysis rendered it unnecessary for the Commission to answer the specificargument raised by Aalborg in the course of the administrative procedure allegingthat events before 27 November 1986 were the subject of a time-bar. 4743. Thirdly, Blue Circle submits that the contested decision fails to identify the conductfor which it was fined. It believes that the fine imposed in Article 9 was imposedin respect of the conduct set out in Articles 2 to 6, including aspects of that conductwhich do not concern it. 4744. In that respect, it should be recalled that according to Article 9 of the contesteddecision the fines were imposed in relation to the grey cement market in respectof the infringement relating to the Cembureau agreement found in Article 1, which,according to the Commission, was put into effect, in particular, by the conduct setout in Articles 2 to 6. 4745. In recital 65, paragraph 3, third subparagraph, (c), 23rd indent, the Commissionstates that Blue Circle implemented the Cembureau agreement by participating inthe agreement relating to the ETF and in the continuous concerted practice of theEPC. 4746. Those contentions, which are moreover established (see paragraphs 4082 to 4088,4404 and 4405), therefore clearly identify which measures implementing theCembureau agreement are taken into account in the case of Blue Circle for thepurpose of determining the fine imposed on it in Article 9. They show,furthermore, that a fine was imposed on Blue Circle only in respect of the unlawfulconduct with which it is charged. 4747. Fourthly, Halkis expresses surprise that the Commission should hold it responsiblein respect of the Cembureau agreement and impose a fine on it on that account,even though the Commission has not cited any unlawful acts by it in 'The Facts. According to Halkis, that is the result of a last-minute amendment to the contesteddecision. The Commission thus fined it without having proven its participation inany infringement by reference to the facts found. Halkis relies in that regard onthe preliminary draft of the contested decision, which did not provide for a fine tobe imposed upon it. 4748. However, it should be observed that Halkis is named both in the 'The Facts(contested decision, recitals 35 to 37) and in the 'Legal Assessment (recital 59)with respect to the concerted practice of the EPC referred to in Article 6. Inrecital 45, paragraph 10, the Commission identifies Halkis as one of theundertakings which participated indirectly in the Cembureau agreement throughtheir involvement in arrangements and measures agreed upon to supplement thatagreement and/or assist in its implementation. In recital 65, paragraph 3, thirdsubparagraph, (c), 16th indent, the Commission states that Halkis implemented thatagreement by participating in the continuous concerted practice of the EPC. 4749. The Commission therefore clearly sets out in the contested decision the matters offact and law on the basis of which it holds Halkis responsible for the Cembureauagreement referred to in Article 1 and imposes a fine on it in Article 9. 4750. The fact that no fine on Halkis was provided for in the preliminary draft of thecontested decision is totally irrelevant. 4751. The argument put forward by Halkis must therefore be rejected. 4752. It follows from the foregoing that the present plea must be dismissed. II  Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, and the principle of equal treatment, inasmuch as the Commissionimposed a single fine for the group of infringements found in relation to the greycement market 4753. First, Italcementi states that the Commission did not indicate in the 'LegalAssessment that it intended to regard the whole of the unlawful conduct found asa single infringement for the purpose of imposing the fine. In its reply, it statesthat the Commission does not mention, in its defence, any passage of the contesteddecision indicating that, so far as concerns the grey cement market, the aggregatefine is imposed in respect of an overall infringement. 4754. However, it suffices to point out that recital 65, paragraph 8, of the contesteddecision states as follows: 'In the case of the group of infringements relating to the grey cement market, theCommission has set ... an aggregate fine on each undertaking in respect of itsparticipation in the Cembureau agreement or principle and in the measuresimplementing it. Since all these actions are connected, the Commission does notfeel it necessary to impose separate fines in respect of the various implementingmeasures. 4755. Italcementi's argument must accordingly be rejected. 4756. Secondly, Lafarge, Asland, Italcementi and Blue Circle complain that theCommission imposed upon them a single fine for the group of infringements foundin relation to the grey cement market, rather than a separate fine for eachinfringement found. 4757. Lafarge and Blue Circle claim that the Commission thereby made it impossible forthem to determine how much of the fine is attributable to each infringement inwhich they are alleged to have taken part or to assess the responsibility attributedto them in respect of the various types of conduct at issue. It is thereforeimpossible for them to check whether the fine imposed on them is appropriate. The Commission has also made it impossible for the Court to check the legality ofthe fines. 4758. Asland states that, by doing so, the Commission has infringed the principle of equaltreatment in holding all the undertakings equally responsible for the infringement,irrespective of the degree of their participation in it. 4759. Italcementi states that the fact of not having imposed a separate fine perinfringement infringes the principles of equal treatment and of proportionality. TheCommission unfairly penalised addressees of the contested decision which, as in itscase, were only charged with attendance at the Cembureau Head Delegatesmeetings. Moreover, the Commission did not assess Italcementi's responsibility inrelation to the actual gravity of only those infringements of which it was accused,the extent of its anti-competitive conduct on the market in question, and itsbehaviour towards the other parties. The applicant adds that the Commissioncannot rely on the single and continuous nature of the infringement referred to inArticle 1 in order to justify the imposition of a single fine, since it has suggestedthat certain infringements did not fall within the scope of single and continuousCembureau agreement. 4760. The Court points out that according to Article 9 of the contested decision, the finesrelating to the grey cement market were imposed 'in respect of the infringementfound in Article 1, which was put into effect, in particular, by the conduct set outin Articles 2, 3, 4, 5 and 6. The grounds for that choice of approach are set forthin recital 65, paragraph 8, cited in paragraph 4754 above. 4761. Under Article 15(2) of Regulation No 17, the Commission may impose a single fineon an undertaking which has committed several infringements (see in particularBoël v Commission, cited in paragraph 1353 above, paragraph 107, and CockerillSambre v Commission, cited in paragraph 837, paragraph 92), without beingrequired to break down the amount of the fine by reference to each infringement. That is all the more so where the various infringements found are part of acoherent overall strategy (Tetra Pak v Commission, cited in paragraph 717 above,paragraph 236). 4762. In the present case, the Commission considered that the various items of unlawfulconduct referred to in Articles 2 to 6 of the contested decision constitutedmanifestations by the undertakings in question of adherence to the common ruleof non-transhipment to home markets, the object of the Cembureau agreementreferred to in Article 1 (see contested decision, recital 46). 4763. Although that claim is unfounded so far as concerns the concerted practice referredto in Article 3(1)(b) (see paragraphs 4040 to 4042 and 4058 above), Buzzi'sparticipation in the concerted practices found in Article 3(1) (see paragraphs 4108to 4113 above), and the agreements and concerted practices referred to in Articles4(4) and (5), which are not proven (see paragraphs 3397 to 3679 and 3771 to 3850above respectively), it has, on the other hand, been found that the infringementsin which Lafarge, Asland, Italcementi and Blue Circle took part on the grey cementmarket were the result of their accession to the Cembureau agreement (seeparagraphs 4063 to 4065, 4082 to 4088, 4326, 4327, 4351, 4378, 4379, 4404 and 4405above). 4764. It was therefore proper to impose an aggregate fine on those applicants in respectof their participation in the Cembureau agreement. 4765. The Commission's approach in Article 9 does not in itself lead to a breach of theprinciples of proportionality and equal treatment. Nor does it make it impossiblefor the undertakings concerned to check whether the fines were well founded, orfor the Community judicature to carry out a review of legality, because in thepresent case (see paragraphs 4725 to 4738) the contested decision, read as a whole,provides the information necessary to that end (Boël v Commission, cited inparagraph 1353 above, paragraph 108). 4766. In view of the foregoing considerations, the pleas examined must be rejected. III  Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, and the principle of proportionality in the assessment of theintentional nature of the infringements 4767. A number of applicants object that the Commission considered generally that allthe undertakings intentionally infringed Article 85(1) of the Treaty, and did notexplain in what way each of them was motivated by such an intention whencommitting the infringements with which they are charged. Some of them putforward arguments aiming to show that their unlawful conduct was not deliberate. 4768. CBR maintains, so far as concerns its participation in the WCC, that it was entitledto believe that that committee's activities were lawful in the light of the approachadopted by the Commission in 1972 in the Cimbel case, which related to anoverseas export agreement (see paragraph 4619 above). 4769. Ciments Luxembourgeois submits that, in view of the Commission's previouspractice, it could not assume that communication of published lists of gross pricescould infringe Article 85(1) of the Treaty. 4770. Dyckerhoff states that the Commission has not established that it was guilty ofintentional or negligent misconduct. The passages of the contested decisionreferred to in recital 65, paragraph 2, relate to events in which it took no part orwhose interpretation it contests. Dyckerhoff claims that it acted in good faith,without having been aware that the activities of Cembureau or the WCC wereunlawful. In its reply, it maintains, as regards its participation in the ETF, that,since the discussions in which it took part were subject to the condition that theywere compatible with the Treaty's provisions on competition, it could legitimatelyassume that the decisions taken and measures agreed during those discussions werelawful. 4771. Lafarge submits that the conditions laid down by Article 15(2) of Regulation No17 and the requirement to provide a statement of reasons under Article 190 of theTreaty meant that the Commission was bound to establish, for each infringement,that it had infringed Article 85(1) of the Treaty intentionally or negligently. However, the Commission does not allege negligence and has not proved that theinfringements alleged against Lafarge in Articles 1, 3, 6 and 7 of the contesteddecision were intentional. Lafarge questions in particular the reliability of thedocuments referred to in recital 19, paragraphs 3 and 5, to which the Commissionrefers in recital 65, paragraph 2. 4772. Aalborg denies any intentional participation in the infringements. 4773. Unicem submits that its conduct in the agreements and concerted practices referredto in the contested decision cannot be characterised as intentional. It states thatthe facts found in recital 65, paragraph 2, in establishing the intentional nature ofthe infringement do not relate to it. It adds that, at the time, neither itself nor anyother Italian cement producer had been the subject of competition lawproceedings. Moreover, Italian laws on competition were adopted at the end of1990. 4774. Valenciana claims to have considered, in all good faith, that its participation in theEPC and in the WCC was compatible with Article 85(1) of the Treaty, even afterthe accession of Spain to the Community. The other members of those committeeswere the largest European cement producers, whose knowledge of Communitycompetition law was greater than its own. 4775. Asland denies having infringed Article 85(1) of the Treaty intentionally ornegligently. 4776. Irish Cement submits that there is no credible evidence that the infringement wascommitted intentionally by it. 4777. Italcementi asserts that its participation in the infringements relating to theexchange of price information and the activities of the WCC were not intentional. As for the activities of the WCC, it adds that it was for the Commission to provesuch intention, given that the purpose of the conduct in question was exportationoutside the Community and that, therefore, its incompatibility with Communitycompetition law was not obvious. 4778. Hornos Ibéricos, in its reply, and Halkis claim that the Commission has not shownthat they committed the infringement intentionally or negligently. Hornos Ibéricoscites a sentence from the letter sending the minutes of the EPC meeting of 18November 1983 to Blue Circle: 'The following concerns intra-European businessand I am not sure it should be included in our minutes. According to Hornos Ibéricos, that sentence, placed back in its economic context, has a meaning contraryto that attributed to it by the Commission. 4779. Aker and EUROC maintain that they did not commit any infringementintentionally. So far as concerns their participation in the ETF, they observe thatin 1986 they had no stake or controlling interest in the Community cement industry. In those circumstances, as the case-law stood at the time (see, in particular,Woodpulp I, cited in paragraph 1325 above), they had no reason to suspect thattheir participation in the ETF could bring them within the scope of Article 85(1)of the Treaty. They add that the Commission seeks to reinforce its conclusion thatthe alleged infringements were intentional by emphasising the covert nature of theactivities referred to in the contested decision. 4780. Blue Circle states that its intention in participating in the ETF was solely to set upa 'think tank. It has not been established that it was aware that the agreementhad as its object the restriction of competition. As regards the setting-up ofInterciment, it points out that that company remained dormant. Furthermore,several documents show that Interciment would have been the subject ofnotification to the Commission if a decision had been taken to make it operational. Lastly, as regards the concerted practices referred to in Article 4(3)(a) of thecontested decision, it has not been established that Blue Circle was involved inpractices which had as their object the prevention, restriction or distortion ofcompetition. 4781. In that regard, the Court points out that, under Article 15(2) of Regulation No 17,'the Commission may by decision impose on undertakings and associations ofundertakings fines of from 1 000 to 1 000 000 ecus, or a sum in excess thereof butnot exceeding 10% of the turnover in the preceding business year of each of theundertakings participating in the infringement where, either intentionally ornegligently ... they infringe Article 85(1) ... of the Treaty. 4782. In this case, the Commission found that the infringements had been intentional andnot merely negligent. 4783. In recital 65, paragraph 2, of the contested decision it states: 'The undertakings ... to which this Decision is addressed intentionally infringedArticle 85(1). The infringements are expressly covered by Article 85(1). Althoughfully aware of the prohibition laid down by Community law and the risk of havingsubstantial fines imposed on them (see in particular recital 19, paragraphs 3 and5, recital 21, paragraph 2, recital 25 and recital 26), they intentionally adopted,within the framework of Cembureau and a system of bilateral or multilateralmeetings and contacts and within the framework of the three export committees,measures and arrangements aimed at ensuring non-transhipment to home markets,the sharing of markets and the exchange of information. The infringements were therefore such as to thwart a basic principle of the common market, namely theremoval of obstacles to the free movement of goods. 4784. It is not necessary for an undertaking to have been aware that it was infringing thecompetition rules laid down in the Treaty for an infringement to be regarded ashaving been committed intentionally. It is sufficient that it could not have beenunaware that the object of its conduct was the restriction of competition (Case246/86 Belasco v Commission [1989] ECR 2117, paragraph 41, and Ferriere Nord vCommission, cited in paragraph 779 above, paragraph 41). 4785. In the present case, the infringements in respect of which fines have been imposedunder Articles 9 and 10 of the contested decision relate to agreements or concertedpractices whose object was to ensure the protection and partitioning of homemarkets. The undertakings could not therefore have been unaware that theirparticipation in such agreements or concerted practices, which are moreoverexpressly referred to in Article 85(1)(c) of the Treaty, aimed to prevent, restrict ordistort competition within the Community. 4786. It follows that the Commission was entitled, having provided adequate reasons, toconclude in recital 65, paragraph 2, of the contested decision that the infringementsin question were intentional. 4787. Accordingly, the present pleas must be rejected. IV  Plea alleging infringement of Regulation No 2988/74 on limitation periods 4788. The arguments alleging that events relating to the infringements found in relationto the white cement market (Article 7 the contested decision) are time barred wereexamined in paragraphs 4670 to 4674 above. A number of applicants maintain thatthe power to impose fines in respect of the infringements found in relation to thegrey cement market was time barred, in whole or in part, by virtue of RegulationNo 2988/74. 4789. First of all, Dyckerhoff, Heidelberger and Italcementi state that the decisionordering the investigations was notified to them in April 1989. All the events whichtook place before April 1984 are therefore time barred pursuant to Article 1(1)(b)of Regulation No 2988/74. Article 9 of the contested decision should therefore beannulled in so far as it imposes a fine on them in respect of those events. 4790. Lafarge states that the infringement referred to in Article 1 of the contesteddecision is time barred, having regard to Article 1(1)(b) of Regulation No 2988/74. The Commission has not established that that infringement continued beyond 1983. Lafarge adds that it is not for the accused undertakings to prove that theinfringement was brought to an end, otherwise the burden of proof would be reversed, contrary to the fundamental principles of the law of evidence commonto all the Member States and contrary to Article 6(2) and (3) of the ECHR. 4791. In that regard, the Court points out that Article 1(1) of Regulation No 2988/74provides that the Commission's power to impose fines is subject to a five-yearlimitation period in respect of breaches of Article 85(1) of the Treaty. Pursuantto Article 1(2) of that regulation, the period begins to run on the day on which theinfringement is committed; however, in the case of continuing or repeatedinfringements, time begins to run on the day on which the infringement ceases. 4792. Under Article 2 of the regulation, any action taken by the Commission for thepurpose of the preliminary investigation or proceedings in respect of aninfringement (for example, decisions ordering an investigation, requests forinformation or notification of the Commission's statement of objections) interruptsthe period and each interruption starts time running afresh. 4793. In the present case, the infringement in respect of which fines are imposed inArticle 9 of the contested decision is the infringement found in Article 1. It hasbeen found that Dyckerhoff participated continuously in that infringement from 14January 1983 to 7 November 1988 (see paragraph 4308 above), Heidelberger from14 January 1983 to 12 August 1987 (see paragraph 4324 above), Lafarge from 14January 1983 to 19 May 1989 (see paragraph 4328 above) and Italcementi from 19March 1984 to 3 April 1992 (see paragraph 4380 above). 4794. Having regard to the investigations undertaken by the Commission into theapplicants between April 1989 and July 1990, the requests for information sent tothem and the notification of the SO in November 1991, the power of theCommission to fine them for their participation in the infringement committed onthe grey cement market was not time barred when the contested decision wasadopted. 4795. The applicants' arguments must therefore be rejected. 4796. Secondly, Aalborg claims that it did not receive any requests for information fromthe Commission and was not the subject of any investigations under Articles 11 and14 of Regulation No 17. The procedure, in so far as it was concerned, was initiatedwith the dispatch of the SO, which it received on 27 November 1991. Pursuant toArticles 1 and 2 of Regulation No 2988/74, a fine could not therefore have beenimposed upon it, since the most recent evidence of its participation in the unlawfulacts dated from 9 September 1986 (the Head Delegates meeting in Baden-Baden),more than five years before receiving the SO. 4797. However, it has been found that Aalborg participated continuously from 14 January1983 to 31 December 1988 in the infringement in respect of which fines wereimposed in Article 9 of the contested decision (see paragraph 4332 above). It is sufficient to observe that the limitation period was in any event interrupted inNovember 1991, when the SO was notified to Aalborg, and there is no need to ruleon the correctness of the applicant's arguments that the investigations carried outinto certain undertakings to which the contested decision was addressed did notinterrupt the limitation period as against it. Pursuant to Articles 1 and 2 ofRegulation No 2988/74, the power of the Commission to fine Aalborg for itsparticipation in the infringement was therefore not time barred when the contesteddecision was adopted. 4798. Aalborg's argument must therefore be rejected. 4799. Thirdly, Unicem states that the decision ordering investigations, which interruptedthe limitation period in its regard, was taken on 24 October 1989. The unlawfulconduct of which it is accused before 24 October 1984 is therefore time barred,pursuant to Article 1(1)(b) of Regulation No 2988/74. 4800. However, it has been found that Unicem's participation in the infringement forwhich fines are imposed in Article 9 of the contested decision was not establishedbefore 9 September 1986 (see paragraphs 4243 to 4247 and 4338 above). Examination of its argument has therefore become pointless. 4801. Fourthly, Cementir claims that the events relating to the Head Delegates meetingsof 14 January 1983 and 7 November 1984, in which it took part, are time barredunder Regulation No 2988/74. It observes next that the only Head Delegatesmeeting in which it participated, and in which price information was exchanged, wasthat of 14 January 1983. The duration of the infringement referred to inArticle 2(1) of the contested decision was therefore no more than one day in so faras it is concerned. The allegations against it in that regard are accordingly timebarred. 4802. However, it should be borne in mind that Cementir's participation in the unlawfulpractices arising at the Head Delegates meetings of 14 January 1983 and 7November 1984 follows from its continuous participation between 14 January 1983and 3 April 1992 in the infringement found in Article 1 of the contested decision(see paragraph 4401 above), in respect of which a fine was imposed on it inArticle 9. Under Regulation No 2988/74, the power of the Commission to imposethat fine upon it was not time barred when the contested decision was adopted. Cementir's argument must therefore be rejected. 4803. It follows from the foregoing that the plea must be dismissed. V  Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, and the principles of equal treatment and proportionality, and manifest errors of assessment as regards the duration of the infringement found inrelation to the grey cement market 4804. All the applicants mentioned in paragraph 4720 above submit that the Commissionhas not correctly assessed the duration of their unlawful conduct when itdetermined the fines in Article 9 of the contested decision. 4805. Asland, Italcementi and Uniland dispute the date taken for them as thecommencement of the infringement. 4806. They complain in particular that the Commission did not take into account theduration of their participation in the infringements found in Articles 2 to 6 of thecontested decision. They were arbitrarily held responsible for the infringementuntil 26 March 1993. Some of them claim that that date is irrelevant to them. Unicem, Italcementi, Holderbank and Blue Circle state that it relates to the formaldissolution of Interciment by Holderbank, its sole shareholder. It does nottherefore have any bearing on the duration of the infringements found in thecontested decision. Valenciana, Irish Cement, Cimpor, SECIL and Hornos Ibéricosclaim that the infringement relating to the setting-up of Interciment has not beenattributed to them. Cementir states that it took no part in the agreement on thesetting-up of Interciment. Moreover, that agreement was, at most, a measureimplementing the ETF, which had nothing to do with the structure and activitiesof Cembureau. 4807. The applicants request that the amounts of their fines be reduced in line with theactual duration of their participation in the infringement. 4808. In that respect, the Court points out that, so far as concerns the grey cementmarket, the undertakings were fined in respect of their participation in theinfringement found in Article 1 of the contested decision, namely the Cembureauagreement. 4809. In recital 65, paragraph 4, first subparagraph, the Commission states that '[that]infringement was of long duration. 4810. It takes the view that that infringement commenced on 14 January 1983 (sameparagraph, second subparagraph). That date is the date of the Head Delegatesmeeting during which the Cembureau agreement was concluded. For the reasonsset out in the third subparagraph of the abovementioned paragraph, theCommission none the less finds that some of the applicants mentioned inparagraph 4720 above participated in the infringement with effect from an earlierdate. The starting date for Asland, Hornos Ibéricos, Uniland, Valenciana, Cimporand SECIL is thus found to be 1 January 1986, for Holderbank 28 May 1986, andfor Aker and EUROC 9 June 1986. 4811. While the Commission is able to establish the date on which the infringementconstituted by the Cembureau agreement commenced, it has no certainty that theinfringement ever really ceased. It could not therefore establish a date for theending of the infringement. Since the final apparent manifestation of theCembureau agreement known to it was the liquidation of Interciment on 26 March1993, it used that date for determining the reference period for the purpose ofdetermining the fines (fourth subparagraph). 4812. In recital 65, paragraph 10, it states that when determining the amount of their fineit took account of the fact that Asland, Hornos Ibéricos, Uniland, Valenciana,Cimpor, SECIL, Holderbank, Aker and EUROC participated in the infringementover a shorter period. 4813. It is apparent from the particulars which it forwarded to the Court in July 1998 (seeparagraph 4738 above) that it calculated the duration of the infringement inmonths. The undertakings which, in its view, participated in the Cembureauagreement throughout the reference period, that is to say from 14 January 1983 to26 March 1993, were thus held responsible for the infringement for a duration of122 months. The duration of the infringement committed by Asland, HornosIbéricos, Uniland, Valenciana, Cimpor and SECIL was fixed at 86.5 months, thatby Holderbank at 82 months, and by Aker and EUROC at 81.5 months. 4814. The infringement in question is established:  as against CBR, from 9 June 1986 to 7 November 1988 (see paragraph 4288above), that is to say for a period of 29 months;  as against Ciments Luxembourgeois, Aalborg and Irish Cement, from 14January 1983 to 31 December 1988 (see paragraphs 4304, 4332 and 4365above), that is to say for a period of 71.5 months;  as against Dyckerhoff, from 14 January 1983 to 7 November 1988 (see paragraph 4308 above), that is to say for a period of 70 months;  as against Vicat, from 11 May 1983 to 23 April 1986 (see paragraph 4316above), that is to say, for a period of 35.5 months;  as against Ciments Français, from 14 January 1983 to 17 February 1989 (seeparagraph 4320 above), that is to say, for a period of 73 months;  as against Heidelberger, from 14 January 1983 to 12 August 1987 (seeparagraph 4324 above), that is to say, for a period of 55 months;  as against Lafarge, from 14 January 1983 to 19 May 1989 (see paragraph4328 above), that is to say, for a period of 76 months;  as against Unicem, from 9 September 1986 to 3 April 1992 (see paragraph4341 above), that is to say, for a period of 67 months;  as against Valenciana, from 1 January 1986 to 13 May 1987 (see paragraph4344 above), that is to say, for a period of 16.5 months;  as against Asland, from 28 May 1986 to 31 May 1987 (see paragraph 4352above), that is to say, for a period of 12 months;  as against Uniland, from 9 September 1986 to 7 November 1988 (seeparagraph 4357 above), that is to say, for a period of 26 months;  as against Cimpor and SECIL, from 1 January 1986 to 24 April 1989 (see,respectively, paragraphs 4368 and 4371 above), that is to say, for a periodof 40 months;  as against Italcementi, from 19 March 1984 to 3 April 1992 (see paragraph4380 above), that is to say, for a period of 96.5 months;  as against Holderbank, from 28 May 1986 to 7 November 1988 (seeparagraph 4384 above), that is to say, for a period of 29.5 months;  as against Hornos Ibéricos, from 1 January 1986 to 19 May 1989 (seeparagraph 4387 above), that is to say, for a period of 40.5 months;  as against Aker and EUROC, from 9 June 1986 to 7 November 1988 (see,respectively, paragraphs 4393 and 4397 above), that is to say, for a periodof 29 months;  as against Cementir, from 14 January 1983 to 3 April 1992 (see paragraph4401 above), that is to say, for a period of 110.5 months;  as against Blue Circle, from 18 November 1983 to 7 November 1988 (seeparagraph 4406 above), that is to say, for a period of 59.5 months;  as against Halkis, from 18 November 1983 to 1 September 1986 (seeparagraph 4416 above), that is to say, for a period of 33.5 months. 4815. The fines imposed on those applicants must therefore be reduced accordingly (seeparagraph 5115 below), bearing in mind that, with regard to each of them, the finewill be related to the proportion of the total duration of 122 months representedby the actual duration of their participation, in accordance with the method ofcalculation applied by the Commission to addressees of the contested decisionwhich were not found by it to have participated throughout the reference period. VI  Pleas alleging infringements of Article 15(2) of Regulation No 17 and theprinciple of proportionality so far as concerns the duration of the infringement foundin relation to the white cement market 4816. Dyckerhoff complains that the Commission has not assessed the duration of theinfringement committed by each undertaking for the purposes of determining thefines in Article 10 of the contested decision. 4817. None the less, Dyckerhoff does not put forward, in support of its complaint, anyargument such as to rebut the Commission's finding that it participated in theinfringement committed on the white cement market throughout the period foundin Article 7 of the contested decision, namely from 6 May 1982 to 26 May 1988. The Commission was therefore entitled to take that period as the duration of theinfringement when determining the fine. 4818. Ciments Français states that it resigned from the WCC in October 1988. 4819. However, the infringement on the white cement market in respect of which a finewas imposed was found to have continued until 26 May 1988 (contested decision,Article 7 and recital 65, paragraph 4, last subparagraph). The argument putforward by Ciments Français is therefore irrelevant. 4820. In conclusion, the pleas examined must be dismissed. VII  Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, and principles of proportionality and equal treatment as well asmanifest errors of assessment in assessing the gravity of the infringement found inrelation to the grey cement market 4821. A number of the applicants contest the matters set out by the Commission inrecital 65, paragraph 5, of the contested decision in support of its allegation thatthe infringement associated with the Cembureau agreement was of particulargravity. One argument concerns the mitigating circumstance referred to in recital65, paragraph 6. Some applicants invoke circumstances which the Commissionallegedly ignored when it assessed the gravity of the infringement. The aggravating circumstances found in recital 65, paragraph 5, of the contesteddecision 4822. In recital 65, paragraph 5, of the contested decision the Commission states: 'In determining the general amount of the fines, the Commission has takenaccount of the fact that the infringement constituted by the Cembureau agreement or principle and by the various actions implementing it is of particular gravity,warranting substantial fines, for the following reasons:  the collusion on market-sharing and the associated exchange of informationis in itself a very serious restriction of competition;  the cement market is a basic industrial sector that is highly important to thebuilding and construction industry and to the economy in general;  the undertakings and associations of undertakings participating in theinfringements account for virtually the whole of the Community cementmarket, in which there are moreover no new market entrants;  the collusion was institutionalised in a system of international organisationsor bilateral or multilateral meetings or contacts designed to regulate andorganise the cement market;  despite the fact that the collusion took place within an institutionalframework that also had legitimate objectives, the undertakings took care,in the case of conduct that might infringe the competition rules, to shroudtheir actions and/or decisions in secrecy (see in particular recitals 19 and 24to 28). Although there was discussion of notifying certain practices to theCommission, such notification did not take place (see recital 26). 4823. In the first place, Lafarge criticises the Commission for having unreasonablyextended the gravity of the infringement to matters outside its proper scope. Theconsiderations in recital 65, paragraph 5, of the contested decision, assuming theyare correct, concern only the main infringement referred to in Article 1. Theycannot be applied to the measures implementing it. 4824. In that respect, it should be recalled that, as regards the grey cement market, thefines were imposed in respect of the infringement found in Article 1 of thecontested decision. The aggravating circumstances referred to in recital 65,paragraph 5, therefore refer specifically to that infringement. Moreover, Lafargedoes not provide, in the context of that argument, any evidence to support its claimthat those aggravating circumstances should not be applied to the implementationof that infringement. Its argument must therefore be rejected. 4825. Secondly, Lafarge disputes the Commission's assertion that the cement market isa basic industrial sector that is highly important to the building and constructionindustry (contested decision, recital 65, paragraph 5, second indent). It asserts that,in terms of value, that market represents only a minute percentage. 4826. However, it cannot be reasonably disputed that cement is an essential product forthe building industry and, consequently, for the economy in general. Lafarge'sargument must therefore be rejected. 4827. Thirdly, Blue Circle maintains that there is no evidence to support the claim thatthe undertakings and associations of undertakings which participated in theinfringement represented practically the whole of the Community cement market. Rather, such an assertion is undermined by the fact that the Commission droppedthe objections which it had raised against 18 European cement producers(contested decision, recital 4, paragraph 1). 4828. Nevertheless, the infringement associated with the Cembureau agreement involvedthe main European cement producers, all the trade associations representing theCommunity markets, and Cembureau, the European association. The Commissionwas therefore entitled to take the view that the undertakings and associations ofundertakings which participated in that infringement represented 'virtually thewhole of the Community cement market (contested decision, recital 65, paragraph5, third indent). Accordingly, Blue Circle's argument must be rejected. 4829. Fourthly, Cementir contests the allegation that the collusion was institutionalisedin a system of international organisations. It states that the trade organisations towhich it belonged did not pursue an anti-competitive object. 4830. The Court points out, however, that Cementir, as a direct member of Cembureau,attended the Head Delegates meetings of 14 January 1983 and 7 November 1984,during which the Cembureau agreement was adopted. It took part, in the contextof the agreement relating to the ETF, in the collective strategy designed toeliminate imports into Western Europe, in particular those from Greece. Itparticipated from 1984 to 1988 in the system of periodic circulation of the pricelists set up at Cembureau level, with a view to facilitating the implementation of theCembureau agreement. It follows that the aggravating circumstance based on theinstitutionalised nature of the collusion applies to it. 4831. Blue Circle argues that the Commission has preserved the superficial appearanceof a structural cartel after jettisoning the national objections and the objectionsrelating to the 'Euro-British contracts. 4832. That argument cannot be accepted. The Court's examination of the contesteddecision has shown that, despite the dropping of those objections, the Commissionestablished the institutionalised nature of the collusion on implementation in whichBlue Circle participated, with respect to the grey cement market, in the frameworkof the ETF and the EPC. 4833. Fifthly, Lafarge, Aker and EUROC deny that there was any plan to dissimulate. Lafarge points to the negotiations from 1973 with the Commission, in particular on the matter of the basing point system. It states also that the actions undertakenwhen the problem of imports of cement from Greece arose were the result ofpolitical steps which aimed precisely to raise the Commission's awareness of thatproblem. Aker and EUROC claim that the undertakings concerned had no reasonto conceal their actions, since they did not realise that they were infringingArticle 85(1) of the Treaty. In their view, the Commission's contention is alsocontradicted by the mass of documents gathered during its investigations. 4834. Unicem states that the arguments put forward by the Commission in recital 65,paragraph 5, fifth indent, of the contested decision to illustrate the desire of theparties to keep their actions secret do not apply to it. 4835. Cementir argues that there is no evidence to show the existence of a desire todissimulate on its part. 4836. It should be pointed out that at the Head Delegates meeting of 14 January 1983,Aker, EUROC and Cementir shared the common intention of the participants toshroud the conclusion of the Cembureau agreement in secrecy (see paragraph 976above). 4837. Lafarge, Unicem, Aker and EUROC participated in the agreement setting up theETF and in measures to defend the Italian market. Those various measures weredesigned to eliminate destabilising imports into Western Europe, in particular thosefrom Greece. Although it had been suggested, when the Zurich/Céligny documentwas drawn up, that the Commission should be notified of the collective actionsplanned to that end (contested decision, recital 25, paragraph 7; document33.126/18779), none of the undertakings has been able to establish that that was thecase for the abovementioned measures. 4838. Lafarge, Aker and EUROC were also party to the agreement setting upInterciment. Although various legal opinions recommended its notification to theCommission on account of its manifestly unlawful object, no such notification wasever made (see paragraph 2984 above). 4839. It follows from the foregoing that the Commission was justified in finding that theaggravating circumstance of the intention to conceal the infringements also appliedto Lafarge, Unicem, Aker, EUROC and Cementir. The mitigating circumstance found in recital 65, paragraph 6, of the contested decision 4840. In recital 65, paragraph 6, of the contested decision, the Commission states: 'In determining the amount of the fines, the Commission has taken account of thefact that the Community undertakings had, during the period in question, to cope with a sudden increase in cement imports at a time when the Community industrywas having difficulty in overcoming the bad economic situation. 4841. Lafarge claims not to be able to determine the impact of that attenuatingcircumstance on the calculation of the fine imposed upon it. 4842. That argument must be rejected. When determining the fines, the Commission isnot required to quantify the various factors which it takes account of in assessingthe gravity of the infringement. Failure to take account of certain mitigating circumstances A  Size and influence on the market of the offending undertaking 4843. Vicat, Uniland, Irish Cement, Cimpor, SECIL, Hornos Ibéricos and Cementir claimthat the Commission did not take account of the fact that their influence on themarket was limited because of their size, market share and low turnover. 4844. Placing reliance on Boël v Commission, cited in paragraph 1353 above (paragraph131), Vicat adds that it is a family undertaking and does not belong to a powerfuleconomic entity. Irish Cement states that it does not control, nor is it controlledby, any other European undertaking. Cementir states that it does not maintain anylinks with production units located in other countries. 4845. The Court points out that the factors to be taken into consideration when assessingthe gravity of an infringement may include the size and economic power of theundertaking and, consequently, the influence which it was able to exert on themarket (see Musique Diffusion Française and Others v Commission, cited inparagraph 439 above, paragraphs 120 and 129, and IAZ and Others v Commission,cited in paragraph 1320 above, paragraph 52). 4846. In the present case, it is clear from the information submitted to the Court by theCommission (see paragraph 4738 above) that it imposed on the undertakings a finecalculated on the basis of their turnover. It is moreover clear from thatinformation that the fines imposed on Vicat, Uniland, Irish Cement, Cimpor,SECIL, Hornos Ibéricos and Cementir were calculated on the basis of their ownturnover, whereas the fines imposed on undertakings which headed a group duringthe period in question were calculated on the basis of their consolidated turnover.The fines imposed on the undertakings thus reflect their size, economic power and,consequently, their influence on the market. 4847. The nature of the shareholding is of no relevance to assessing the gravity of theinfringement committed by an undertaking for the purpose of determining its fine. 4848. Finally, in Boël v Commission, cited in paragraph 1353 above, relied upon by Vicat,the Court merely corrected the unequal treatment suffered by the undertaking inquestion in comparison with undertakings which, although not belonging to any lesseconomically powerful entity than that to which that undertaking belonged, weregiven the benefit of a mitigating circumstance based on the fact that their unlawfulconduct had had a limited impact on competition because they did not belong toa powerful economic entity (see paragraphs 131 and 132 of the judgment). Vicatcannot therefore rely on that judgment in order to argue that the Commissiondisregarded the principles laid down in the case-law by not reducing its fine on theground that it did not belong to a powerful economic entity. 4849. In conclusion, the arguments of the applicants must be rejected. 4850. Ciments Luxembourgeois is of the view that the amount of the fine imposed uponit is totally unfair, inasmuch as its turnover in 1991 amounted to LUF1 764 000 000 4851. None the less, that argument must be rejected on the grounds set out in paragraph4846 to the extent that it consists in objecting that the Commission imposed onCiments Luxembourgeois a fine that was disproportionate in view of its lowturnover. B  Absence or minor impact of the anti-competitive effects of theinfringements 4852. Some applicants complain that the Commission did not take account of the absenceor at least the minor impact of the anti-competitive effects, whether actual orpotential, of the unlawful conduct of which they are accused. 4853. Vicat states that the anti-competitive effect of the concerted practice referred toin Article 3(1)(c) of the contested decision was minimal in view of theunrepresentativeness of the two undertakings in question, on the one hand, and thelimited nature of its sales in the geographical area concerned by its disputedcontacts with Buzzi, on the other. It criticises the Commission for not havingcarried out an analysis of the market and of the extent to which competition on thesouth of France regional market was affected. 4854. Aalborg and Italcementi criticise the Commission for not having taken account ofthe fact that their participation in the infringement did not have any effect on themarket. Italcementi adds that, in view of the nature of the Italian market and itsown conduct, the Cembureau agreement would have been of the same nature,extent, duration and would have had the same effects as those described in thecontested decision if the Commission had not found that Italcementi hadparticipated in it. 4855. Unicem criticises the Commission for not having acknowledged that its conduct hadnot caused any damage to consumers. Its conduct did not prevent the continuinggrowth of imports into Italy of cement from Greece between 1986 and 1991. 4856. Asland states that the contested decision does not contain any passage on theactual effects of the infringement found. It complains that the Commission did notexamine those effects, thereby depriving itself of a significant factor on the basis ofwhich to assess the gravity of the actions in question. Such an analysis, it isclaimed, would have led the Commission to find that intra-Community trade incement had increased since 1985. 4857. Irish Cement maintains that its involvement in the exchange of price informationreferred to in the contested decision had no impact on competition within theCommunity. 4858. Cimpor complains that the Commission did not compare the actual effects of itsparticipation in the infringement with those resulting from the participation of theother undertakings involved. 4859. SECIL criticises the Commission for not having taken account of the actual effectsof its participation in the infringement. 4860. Cementir claims that the Commission, in omitting to take account of the specialfeatures of the cement market, did not establish that by the very nature of thecompetition which existed on that market any restrictive effects which could havearisen from the infringements found would necessarily have been marginal, limitedto a reduction in any trade there might have been in the border areas betweenregional markets. 4861. Blue Circle complains that the Commission did not take account of the fact thatduring the period of the infringement intra-Community trade flows increasedsignificantly and that imports of cement into the United Kingdom rose despite thefact that there were substantial constraints, unrelated to any unlawful conduct, onimports of cement into the United Kingdom. 4862. The Court points out that, in order to find that an agreement is contrary toArticle 85(1) of the Treaty, it is not necessary to establish that the agreement inquestion had an anti-competitive effect. A finding that the agreement pursued ananti-competitive object is sufficient for it to be declared contrary to Article 85(1)of the Treaty (see the case-law cited in paragraph 837 above). 4863. So far as concerns fines, the assessment of the effects of an infringement may berelevant where the Commission takes precisely such effects into account whendetermining the gravity of the infringement in question, and does not succeed inproving them or providing good reasons for taking them into account. 4864. In the present case, it should be observed that in recital 65, paragraph 5, of thecontested decision the Commission does not rely on the fact that the Cembureauagreement led to anti-competitive effects in finding that it was particularly serious. It points out, correctly, that the collusion on market-sharing and the associatedexchange of information is in itself a very serious restriction of competition (recital65, paragraph 5, first indent). 4865. It is true that it is clear from recital 65, paragraph 9, that in order to assess therespective responsibilities of the undertakings concerned the Commission relied inparticular on the effects of the measures by means of which they had implementedthe Cembureau agreement. It thus placed the heaviest burden of responsibility onthose undertakings which had taken part in measures 'having direct effects tendingto partition home markets (same paragraph, (a)). On the other hand, it deemedless serious the responsibility of those undertakings which participated only in themeasures designed to channel production surpluses to third countries, on theground that such measures had 'less direct effects on the protection of homemarkets (same paragraph, (b), first indent). 4866. The latter considerations cannot, however, be regarded as an analysis of the anti-competitive effects observed as a result of the infringement which the Commissionought to have substantiated with specific details. They are the result of atheoretical assessment, which is not contested by the parties, of the effects oncompetition potentially linked to those two types of measure. 4867. The arguments of the parties must therefore be rejected. C  Conduct on the market during the period in question 4868. Vicat criticises the Commission for not having taken account of its independentcommercial strategy, centred in particular around the development of a productwhich it alone produces: 'Prompt. 4869. However, that does not prove that Vicat sought to abstain from implementing theCembureau agreement during the period between 11 May 1983 and 23 April 1986during which it acceded to it by way of its participation in the concerted practicefound in Article 3(1)(c) of the contested decision (see paragraph 4316 above). Itsargument must be rejected. 4870. Asland criticises the Commission for not having accorded any importance in thecontested decision to its competitive conduct during the period in question. Itrefers to the tables which show the constant increase, between 1985 and 1991, oftrade in cement between Spain and the other Community countries. It also pointsto its shareholding in Hispacement, a joint subsidiary belonging to several Catalanproducers seeking to promote trade in cement outside the Catalan market. 4871. It should be recalled that Asland's participation in the Cembureau agreement isonly established between 28 May 1986 and 31 May 1987 (see paragraph 4352above). Therefore, Asland's contentions relating to the period prior to 28 May1986 and that subsequent to 31 May 1987 are now irrelevant. 4872. In addition, the overall data indicating a constant increase from 1985 in cementexports from Spain to other Community countries do not prove that Asland haditself adopted a competitive mode of conduct on the market. 4873. Finally, the Cembureau agreement did not prohibit all intra-Community trade incement. It was designed to prevent only 'random exports capable of destabilisingthe markets. It did not exclude traditional or even structural exports (seeparagraph 1121 above). 4874. In such a context, the circumstances put forward by Asland cannot be interpretedas establishing its desire not to implement the Cembureau agreement during theperiod in which it adhered to it. 4875. Asland's argument must therefore be rejected. 4876. Cementir criticises the Commission for having systematically failed to take accountof the policy which it had actually followed on the market during the period inquestion. Moreover, the Commission did not show that Cementir's policy arose outof the agreements or concerted practices found. Thus, its participation in theagreements concluded with Calcestruzzi did not and could not have had the leasteffect on imports of cement from Greece, which had grown appreciably since 1987. 4877. However, Cementir does not produce, in support of its argument, any evidence thatit intended to refrain from implementing the Cembureau agreement between 14January 1983 and 3 April 1992 when it acceded to the agreement. The appreciableincrease in imports into Italy of cement from Greece cannot be deemed to reveala desire on its part to distance itself from that agreement (see paragraph 4401above). At most, it signifies that the measures to implement it, in which Cementirparticipated, as found in paragraphs 3283 to 3290 and 3343 to 3396 above,following the advent of the problem relating to imports of Greek cement intoWestern Europe, did not produce the anticipated effects on the Italian market. Cementir's argument must, accordingly, be rejected. D  No benefit from the infringement 4878. Vicat and Ciments Français criticise the Commission for not having taken accountof the fact that they derived no benefit from the infringements of which they areaccused. 4879. Lafarge states that the Commission did not take account of the rules which it haditself, laid down specifically in its Twenty-first Report on Competition Policy, underwhich any financial advantage gained by undertakings from an infringement was inthe future to be a determining factor when calculating the amount of their fine. 4880. Irish Cement criticises the Commission for failing to establish or not even seekingto prove that it had derived or attempted to derive any benefit from its unlawfulactivities. 4881. However, the fact that an undertaking did not benefit from an infringement cannotpreclude the imposition of fines, since otherwise they would cease to have adeterrent effect (see T-143/89 Ferriere Nord v Commission, cited in paragraph 779above, paragraph 53). It follows that the Commission is not required, in order todetermine fines, to establish that the infringement brought about an unlawfuladvantage for the undertakings concerned, nor to take into consideration any lackof benefit from the infringement. 4882. Assessment of the unlawful gains from the infringement may be relevant if theCommission bases itself precisely on such gains in order to assess the gravity of theinfringement and/or to calculate the fine. 4883. However, that is not the case here. In recital 65, paragraph 5, of the contesteddecision, the Commission does not rely on the existence of a profit linked to theCembureau agreement in concluding that that infringement is particularly serious. As has been pointed out (see paragraph 4846 above), it calculated the fines on thebasis of the turnover of the undertakings concerned. 4884. So far as Lafarge is concerned, it should further be pointed out that in its Twenty-first Report on Competition Policy the Commission stated (p. 120): 'In assessing the fine, the Commission takes into account all the relevant facts ofthe case. The financial benefit which companies infringing the competition ruleshave derived from their infringements will become an increasingly importantconsideration. Wherever the Commission can ascertain the level of this ill-gottengain, even if it cannot do so precisely, the calculation of the fine may have this asits starting point. When appropriate, that amount could then be increased ordecreased in the light of the other circumstances of the case, including the need tointroduce an element of deterrence or penalty in the sanction imposed on theparticipating companies. 4885. That does not mean that the Commission has now taken it upon itself to establishin every case, for the purpose of determining the fine, the financial advantagelinked to the infringement found to have been committed. It only shows itsintention to take that factor more into account and to use it as a basis for calculating fines, where it is able to assess it, even if it cannot do so precisely. However, that was not the case here. 4886. In the light of the foregoing considerations, the arguments put forward by Vicat,Lafarge and Irish Cement must be rejected. E  The state of the cement market during the period in question 4887. Irish Cement claims that it was itself the victim of serious dumping on its domesticmarket by exporters from non-member countries from 1982 to 1986, which led itto complain to the Commission. Hornos Ibéricos criticises the Commission for nothaving taken account of the general situation of the cement market during theperiod in question. 4888. In that respect, the Court points out that in recital 65, paragraph 6, of thecontested decision the Commission states: 'In determining the amount of the fines,the Commission has taken account of the fact that the Community undertakingshad, during the period in question, to cope with a sudden increase in cementimports at a time when the Community industry was having difficulty in overcomingthe bad economic situation. 4889. In reply to a request to clarify that statement in the course of proceedings, theCommission explained (reply of 6 July 1998 to a written question from the Court): '[T]he allusion in recital 65(6) of the decision to a sudden increase in cementimports refers to imports from non-member countries. During the period of theinfringement there were in particular considerable imports from Tunisia, Turkeyand Romania, in respect of which anti-dumping complaints were submitted. 4890. At the hearing, Irish Cement explained that it was referring to imports from EastGermany and Spain. 4891. In that regard, it must be observed that the Commission's explanations show thatthe examples of imports from Tunisia, Turkey and Romania are indicative ratherthan exhaustive. 4892. Furthermore, since a decision constitutes a single whole, each of its parts must beread in the light of the others (see Cases T-150/89 Martinelli v Commission [1995]ECR II-1165, paragraph 66, and Case T-49/95 Van Megen Sports Group vCommission [1996] ECR II-1799, paragraph 51). The considerations set forth inrecital 65, paragraph 6, of the contested decision must thus be read in the light ofthe explanations contained in 'The Facts, which mention the problems caused byimports from East Germany and Spain during the period referred to by IrishCement (see recital 18, paragraphs 2 and 3, and recital 19, paragraphs 9 and 10). 4893. In the light of the foregoing, the arguments put forward by Irish Cement andHornos Ibéricos must be rejected. F  Self-defence 4894. Ciments Français, Lafarge, Unicem, Hornos Ibéricos and Blue Circle criticise theCommission for not having taken account of the fact that the measures againstimports of cement from Greece were taken in legitimate self-defence as a reactionto the conditions of unfair competition in which such importation took place. Theycriticise the Commission for its inertia and the ineffectiveness of its actions withregard to the aid granted at the time by the Greek authorities to their cementindustry. 4895. Ciments Français, Unicem and Hornos Ibéricos rely on AITEC and Others vCommission, cited in paragraph 2554 above, as support for their arguments that theCommission failed to analyse correctly the effects of the importation of cementfrom Greece. The Commission thus misassessed the difficulties created by suchillegally subsidised imports. 4896. In that respect, and in addition to what is set out in paragraphs 2556 to 2559 above,it should be recalled that, so far as concerns the grey cement market, in Article 9of the contested decision a fine was imposed on those applicants in respect of theirparticipation in the Cembureau agreement, which was an agreement designed toensure non-transhipment to home markets and to regulate cement transfers fromone Community country to another (see paragraph 1085 above). 4897. Their involvement in that infringement consisted, in whole or in part, in unlawfulconduct that was totally unrelated to the problem concerning the importation oflow-cost cement from Greece, or whose scope was not restricted to that problem. 4898. Unicem participated in the periodic exchange of price information designed tofacilitate the implementation of the Cembureau agreement (Article 2(2)). Lafargeparticipated in a concerted practice with Buzzi involving the sharing of the marketin southern France (Article 3(1)(a)). Ciments Français and Lafarge were involvedin agreements and concerted practices concerning the regulation of cement suppliesbetween France and Germany (Article 3(3)(a)). Ciments Français, Lafarge,Hornos Ibéricos and Blue Circle participated in the continuous concerted practiceof the EPC relating to the examination of the situation on Community markets, thesharing of third-country markets, the setting of prices for products intended foroverseas export, the exchange of individualised data on export availabilities and onactual exports to third countries, which aimed to prevent incursions by competitorsinto each national market in the Community (Article 6). 4899. Although the measures adopted in the context of the agreement relating to theETF were undoubtedly the result of the threat of cheap cement imports fromGreece, several of those measures pursued an unlawful objective which wentbeyond that particular case. Thus, the purpose of the agreement on the setting-upof the ETF was the elimination of any import of cheap cement likely to destabiliseEuropean markets (see paragraph 2560 above). The purpose of the agreement onthe setting-up of Interciment was the carrying-out of persuasive and dissuasivemeasures against countries threatening the stability of the member countries'markets (Article 4(2)). 4900. Finally, it must be pointed out that, so far as concerns the measures referred to inArticle 4(3), an undertaking cannot properly rely on the defensive nature of theagreement or concerted practice in which it has taken part, once it has resorted tomeasures incompatible with Community law in order to protect the participants'markets against competition from other Member States (Baustahlgewebe vCommission, cited in paragraph 415 above, paragraph 148). 4901. The arguments of the parties must, accordingly, be rejected. G  Cooperation during the administrative procedure 4902. Lafarge and Valenciana emphasise their willingness to cooperate with theCommission during the administrative procedure. Valenciana states that itfacilitated the investigations carried out by the Commission at its premises, that itsubmitted its written and oral observations on the SO despite not knowing preciselywhat the complaint against it was, and that it took part in the hearing. Aker andEUROC submit that they sent to the Commission during the administrativeprocedure the record of the ETF meeting of 19 August 1986 drawn up by MrUlestig (Scancem). The Commission must have considered that documentsufficiently important, for it sent it to all the parties to which the SO was addressed. Aker and EUROC further state that they sent one of their main directors and thesenior president of Scancem to the hearing in March 1993. 4903. However, Lafarge does not substantiate its claims with any evidence which makesit possible to assess whether it is well founded. For that reason alone, its argumentmust be rejected. 4904. Valenciana's conduct, for its part, was no more than the performance of itsobligations and the exercise of rights under the regulations applicable to theconduct of administrative procedures in matters of infringements of Communitycompetition law. Its argument must therefore also be rejected (see, to this effect,Case T-12/89 Solvay v Commission [1992] ECR II-907, paragraphs 341 and 342). On the same grounds, the argument put forward by Aker and EUROC based on the attendance of one of their main directors and of the senior president ofScancem at the hearing of March 1993 must also be rejected. 4905. Aker and EUROC did indeed append to their reply to the SO (annex 3, document15) the record of the ETF meeting of 19 August 1986 drawn up by Mr Ulestig(Scancem), a document to which the Commission refers on various occasions in'The Facts (recitals 25, paragraphs 14 to 20, 27, paragraph 3, and 28, paragraphs3, 15 to 18 and 22) and in the 'Legal Assessment (recitals 53, paragraphs 7 and8, 55, paragraph 1, and 56, paragraphs 5, 8, 11 and 13) concerning the ETF. 4906. However, it is clear from their reply to the SO (Points 6.3.5.7 and 6.3.5.16) that thereason for sending that document to the Commission was not so much a desire tofacilitate establishing the complaints made by the Commission in the SO as a desireto deny the involvement of Aker and EUROC in the infringement regarding theagreement on the setting-up of Interciment. In those circumstances, it must beheld that the Commission did not commit an error of assessment in failing toconsider that factor to be a mitigating circumstance when it fixed the fines inrespect of those two applicants. Consequently, their argument must also berejected. H  Intention to comply with Community competition law 4907. Lafarge criticises the Commission for not having taken account of the conduct ofthe undertakings against which proceedings had been brought which had soughtthroughout the period in question to act within the law, as attested by thenumerous references in the documents seized by the Commission to therequirements of Community competition law. 4908. However, such a line of reasoning does not alter the fact that infringements werecommitted on the grey and white cement markets, or reduce their gravity. Nordoes it make it possible to disregard the factors referred to in paragraphs 4836 to4838 above, which bear witness to the willingness of the participants in theinfringement, including Lafarge, to shroud in secrecy some of the unlawful practiceswhich they adopted in the context of the Cembureau agreement. 4909. Unicem claims that, as soon as it became aware of the importance of Communitycompetition law, it adopted a code of conduct to be followed by its staff. 4910. None the less, whilst it is important that Unicem took steps to prevent freshinfringements of Community competition law from being committed by membersof its staff in the future, that circumstance does not alter the fact that it has beenfound to have committed a serious infringement in the present case (see, inparticular, T-7/89 Hercules Chemicals v Commission, cited in paragraph 140 above, paragraph 357, and T-13/89 ICI v Commission, cited in paragraph 323 above,paragraph 395). I  Novelty of the matter at issue 4911. Lafarge objects that the Commission did not take account of its own practice of notimposing fines, or of imposing only moderate fines, where it takes a decision for thefirst time on the operation of a particular Community market, which is the casehere. 4912. Dyckerhoff states that a fine should not have been imposed in the context of alegal situation which had yet to be clarified by administrative practice. TheCommission's view as to the unlawfulness of the collaboration maintained withregard to third countries in the framework of the WCC was entirely new or, atleast, could not have been foreseen by the undertakings. 4913. Although it is true that in determining the amount of the fine, the Commission andthe Community judicature may, in certain circumstances, take account of the factthat at the date of the events at issue the practices objected to had not been clearlyidentified as such in the Commission's previous decisions (AKZO v Commission,cited in paragraph 323 above, paragraph 163, and Dunlop Slazenger v Commission,cited in paragraph 270 above, paragraph 143), the novelty of the matter at issuemust be assessed not with regard to the business sector concerned, but rather thelegal questions raised by the infringement found. 4914. In the present case, the infringement in respect of which a fine has been imposedarose, on both the grey and the white cement markets, from an agreement onnon-transhipment to home markets. The incompatibility of such an agreement orconcerted practice with the rules on competition is expressly set out inArticle 85(1)(c) of the Treaty and laid down in settled case-law. The applicantshad therefore been informed that their practices were unlawful. 4915. Their argument that the matters raised in the contested decision were new must,accordingly, be rejected. J  The European cement industry as world leader 4916. Lafarge submits that the Commission did not take account of the fact that, thanksto an efficient restructuring policy, the European cement industry had become theleading cement industry in the world. To penalise an entire industry which hasovercome a difficult crisis by being adaptable does not appear to it to be inaccordance with the objectives of a Community industrial policy, the importanceof which is laid down in Article 130 of the EC Treaty (now Article 157 EC). 4917. However, the interest in encouraging a leading industrial sector cannot rule out theimposition of substantial fines in respect of serious infringements of Communitycompetition law, otherwise undertakings operating in fields considered to beimportant for European industry and its economy would be certain of impunity. K  Legal and technical barriers to intra-Community trade in cement 4918. Valenciana refers to the barriers, legal (initiation of an anti-dumping procedureagainst Portland cements from Spain) and technical (disparity between nationalrules on type-approval), which it has come across in its export activities, bothbefore and after the accession of Spain to the Community. 4919. However, such factors do not affect either the reality, seriousness or duration of theinfringement by Valenciana. They do not therefore warrant reducing its fine. L  Arrival of a new competitor on the market 4920. Irish Cement complains that the Commission did not take account of the entry ofa new producer into the Irish market, namely Sean Quinn Cement Limited, whichcommenced production in 1989 just north of the border between Ireland andNorthern Ireland. 4921. However, that event is subsequent to 31 December 1988, the date taken by theCourt as marking the end of Irish Cement's participation in the infringement foundin Article 1 of the contested decision (see paragraphs 4365 and 4366 above). There is therefore no purpose in examining the merits of Irish Cement's claim M  Fines not tax-deductible 4922. Italcementi submits that the amount of the fine imposed upon it is excessive in thatit does not take into consideration the fact that fines are not tax deductible in Italy. 4923. However, in fixing fines, the Commission is not required to take into accountdifferences existing between national tax laws (Case 44/69 Buchler v Commission[1970] ECR 733, paragraph 51). N  Financial situation of the offender 4924. Halkis claims that the fine imposed upon it exceeds its ability to pay and couldplace it in dire financial straits, since it is under special winding-up arrangements. In its reply, it adds that, although it was put into liquidation after the date on which the contested decision was adopted, the consequences of Decision 91/144 on theaid which had been granted to it by the Greek Government had left it, since then,in a very difficult financial position. 4925. However, the Commission is not required to take into account the loss-makingsituation of an undertaking when determining its fine, since that may give anunjustified competitive advantage to undertakings least well adapted to the marketconditions (IAZ and Others v Commission, cited in paragraph 1320 above,paragraph 55). 4926. It follows from the foregoing considerations that the pleas examined cannot beupheld. VIII  Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, the principles of proportionality and equal treatment, and manifesterrors of assessment in assessing the responsibility of individual undertakings in respectof the infringement found in relation to the grey cement market 4927. First, Aalborg submits that to be ordered to pay a fine for infringement ofArticle 85 of the Treaty presupposes individual responsibility. It cannot be orderedto pay a fine on the basis of collective responsibility for acts committed by others. Blue Circle considers that an undertaking cannot be held responsible for aninfringement in which it did not participate, even if the infringement was committedpursuant to an agreement or concerted practice to which it was party. 4928. However, as is apparent from the examination carried out in paragraphs 4330 to4333 and 4403 to 4407 above, Aalborg and Blue Circle were fined only in respectof the matters charged against them individually in the context of the infringementfound in Article 1. Their argument must therefore be rejected. 4929. Secondly, a large number of applicants complain that the Commission appliedabstract and general criteria when it assessed their responsibility in the infringementon the grey cement market in respect of which fines were imposed, and did nottake account of their individual involvement in that infringement. Several of themargue that the Commission did not take into account the actual role which theyplayed in the elements of the infringement attributed to them. A number claimthat the Commission ought to have taken account of the limited number ofinfringements which they had committed in the framework of the Cembureauagreement and/or the degree of gravity of each of the measures implementing it. 4930. CBR complains that the Commission inferred its accession to the Cembureauagreement from the fact that one of its directors had represented, as head delegate,his national association at the Cembureau Head Delegates meetings of 14 January1983, 19 March and 7 November 1984. However, the conduct of that director in the course of his duties in the FIC could not be attributed to CBR. Moreover, hisparticipation in the abovementioned meetings of 14 January 1983 and 19 March1984 were only aimed at continually ensuring that actions likely to be undertakenin the framework of Cembureau were compatible with Article 85. The Commissionattempted to portray that director as playing an important role in the conclusionand implementation of the Cembureau agreement, whereas his only involvementrelated to the basing point system, the lawfulness of which is not challenged in thecontested decision. CBR further claims that its role in the ETF was very limited. 4931. Dyckerhoff complains that the Commission did not allude, even briefly, to its minorrole in the infringement referred to in Article 3(3)(a) of the contested decision. 4932. Vicat observes that, according to the contested decision, it participated in only onemeasure implementing the Cembureau agreement, namely the concerted practicereferred to in Article 3(1)(c) of the contested decision. That infringement is alsoless serious than the other measures implementing that agreement. Vicatcomplains that the Commission did not take account of that aspect, placing it onthe same footing as the other undertakings, against which there was much greaterinculpating evidence, and that it did not set out the reasons why it believed it couldfine it as heavily as the other undertakings. After comparing its situation with thatof Lafarge and Italcementi, it concludes that the unit value of the fine perinfringement committed is clearly greater in its case than in the case of those twoundertakings. 4933. Ciments Français states that it participated, by means of one of the members of itsboard of directors acting as chairman of the SFIC, in only one of the threeCembureau Head Delegates meetings during which the Cembureau agreement wasadopted. It claims that it was only very slightly involved in the collusion promptedby the importation of cement from Greece. Finally, it contends that itsparticipation in the EPC was negligible, having regard to the insignificant role itwas able to play on the overseas exports markets. 4934. Heidelberger complains that the Commission based itself on the argument thatthere existed a single and continuous agreement so that it could totally ignore theindividual role played by each undertaking and determine an aggregate fine inrespect of participation in that agreement. Its fine should therefore be cancelledor, at least, reduced. Heidelberger claims to have been involved but slightly in theevents referred to in the contested decision. Only five unlawful measures were heldagainst it from amongst those mentioned in the contested decision. Moreover, theextent of its participation was clearly less than that of the other undertakings. Itsparticipation in the events at issue was restricted to more or less passive attendanceat negotiations during which anti-competitive agreements or concerted practiceswere adopted. By imposing on it such a heavy fine, the Commission totally failedto take account of its role in the Cembureau agreement. Heidelberger adds thatthe principle of equal treatment precludes that an undertaking accused of a minor participation in an agreement or concerted practice should be fined more heavilythan an undertaking accused of more serious conduct. 4935. Aalborg states that the Commission failed to observe the principle that fines mustbe proportional to the degree of responsibility and the scope of the infringement. It also criticises the Commission for not having compared its degree ofresponsibility and the gravity of its infringement with those of the otherundertakings. Comparing its situation with that of Ciments Luxembourgeois,Aalborg claims that a very large part of its fine may be explained by its presenceat the Head Delegates meeting of 9 September 1986 in Baden-Baden. It,therefore, criticises the Commission for not having checked scrupulously thereasons for its participation in that meeting, which in actual fact related only to thelodging of an anti-dumping complaint and to the lobbying activities concerningGreek State aid. It further criticises the fact that its unintentional participation inaspects of the infringement found in the contested decision resulted in a fine asheavy as that imposed on the undertakings which were most involved. 4936. Unicem claims that it played a purely passive role in the periodic exchanges ofprice information and that it participated in only one of the fourteen meetingswhich took place between May 1986 and May 1987 within the framework of theETF. It never took measures to implement the Cembureau agreement. Moreoverit had no part whatsoever in certain practices referred to in the contested decision. Its marginal role in the infringements committed showed in particular its limitedinterest in international trade. However, the Commission imposed on it a fine ofthe same size as that imposed on undertakings which played a major role in theanti-competitive practices in question. 4937. Valenciana submits that by imposing on each undertaking an aggregate fine inrespect of its participation in the various infringements found in relation to the greycement market the Commission failed to assess the gravity of the unlawful conductof each undertaking. Thus no account was taken of the lesser gravity of its ownparticipation in the EPC. The contested decision is silent about the fact that itsexport activities were directed towards the United States and that it did notparticipate in the EPC sub-committees or the Committee for Development ofInternational Cement Trade. 4938. Asland criticises the Commission for having held all the undertakings responsiblefor the infringement in the same measure, irrespective of the degree of theirparticipation in the infringement. It points specifically to its own limited role in theETF. 4939. Uniland states that the Commission, by relying solely on the passive and sporadicpresence of Mr Rumeu at two meetings of the ETF in order to accuse it ofparticipating in the agreements and concerted practices referred to in Articles 1and 4(1), (2) and (3)(a) of the contested decision, unjustifiably attributes to it a role comparable to that of undertakings such as Holderbank, the scale and degree ofwhose participation in the Cembureau agreement are, in its view, manifestly notcomparable to its own. 4940. Irish Cement maintains that it played a minor role in the infringement constitutedby the Cembureau agreement, which the Commission failed to take into account. It submits that it did not participate in the principal bi- or multilateral agreementsidentified in the contested decision. The evidence gathered by the Commissionmight at the very most be used to show that Irish Cement went along with theCembureau agreement and the various associated implementing agreements. Norwas Irish Cement directly involved in the ETF, as the Commission recognises. TheCommission also acknowledged that the commercial relations between IrishCement and the United Kingdom did not constitute an implementation of theCembureau agreement. Irish Cement concludes that, by placing it in the categoryof undertakings which played the largest roles in the infringement, the Commissionattributes excessive and disproportionate responsibility to it compared with theother undertakings in the same category. 4941. Cimpor points out that, whereas some undertakings have been held responsible fornine infringements, it is charged with only two. It states, next, that it was notdirectly involved in the conclusion of the Cembureau agreement, since it was nota member of Cembureau. 4942. SECIL submits that it is amongst the undertakings accused of the smallest numberof infringements. Reliance on abstract and uniform criteria, which place it amongthe undertakings which seriously infringed Article 85(1) of the Treaty, thereforeconstitutes a breach of the principle of proportionality with regard to the fineimposed on it. 4943. Cimpor and SECIL further criticise the Commission for not having taken accountof the fact that they took no initiative in the infringements they were found to havecommitted in the contested decision. Nor has the Commission established thattheir activities were ever considered to be a 'hot spot or that they transmittedsensitive or confidential information to ATIC or to Cembureau. 4944. Italcementi points to the existence of a statutory price control system in Italy, thenature of the information exchanged, its lack of interest in exports and the lack ofinterest in Italy on the part of the other European producers. It states that themeasures adopted in the framework of the ETF by the Italian cement producersamounted to an independent and lawful response to Greek competitors. Suchmeasures can therefore be treated in the same way as measures designed tochannel Greek production surpluses towards non-member countries. Finally,Italcementi's conduct with regard to Interciment cannot be compared to that ofHolderbank, the sole shareholder in that company, from creation to liquidation. 4945. Holderbank, in its reply, criticises the Commission for not having examined itsparticular involvement in the various infringements of which it is accused. 4946. Hornos Ibéricos states that the EPC was a legitimate instrument. The specificallusions to certain intra-Community situations in the course of EPC meetings donot prove that all the meetings of that committee were unlawful. Furthermore, theCommission did not take account of the fact that none of those allusions concernedHornos Ibéricos. Nor did it take into account the fact that it took no initiative inthe setting-up of that committee, the limited nature of its duties and responsibilitieswithin the EPC, or of the fact that it was never part of the EPC's SteeringCommittee. Moreover, the contested decision contains no discussion of theeconomic and legal context in which the EPC was created or the accession ofHornos Ibéricos to that committee. Hornos Ibéricos further claims that, byimposing a fine on it of the same magnitude as that imposed on undertakings whichcommitted more serious infringements, the Commission infringed the principle ofequal treatment. 4947. Cementir complains that the Commission imposed fines in respect of theagreements concluded with Calcestruzzi in the same way as the agreements orconcerted practices which aimed to monitor or eliminate trade between MemberStates. It further complains that the Commission did not take account of itsmarginal or even non-existent role within Cembureau and the ETF, its lack ofinterest in exporting and its irregular attendance at Head Delegates meetings. Inits view, the Commission should have differentiated between the fine which itimposed upon it and that which it imposed on Italcementi and Unicem, since thelatter played a much more important role in the infringements found to have beencommitted. 4948. Halkis criticises the Commission for not having taken into account the fact that theinfringement it was found to have committed was not serious. It also observes thatthe Commission relied only on its participation in the EPC in order to fine it,without proving that such participation contributed to the implementation of anagreement on the sharing of home markets. 4949. The Court points out that, in fixing the amount of the fines, regard must be had toall the factors capable of affecting the assessment of the gravity of theinfringements, such as the role played by each of the parties to the infringementand the threat that infringements of that type pose to the objectives of theCommunity (Musique Diffusion Française and Others v Commission, cited inparagraph 439 above, paragraphs 120 and 129, and IAZ and Others v Commission,cited in paragraph 1320 above, paragraph 52). Where an infringement has beencommitted by several undertakings, the relative gravity of the participation of eachof them must be examined (C-51/92 P Hercules Chemicals v Commission, cited inparagraph 142 above, paragraph 110 and Montecatini v Commission, cited inparagraph 270 above, paragraph 207). 4950. In the present case, the Commission states in recital 65, paragraph 9, of thecontested decision: 'In determining the amount of the fine for each undertaking in respect of theinfringements described in Chapters 8, 9 and 10, the Commission started from thefact that, as it specified in paragraph 3 above, all the undertakings acceded to theagreement or principle of non-transhipment to home markets. However, within thisgeneral approach, it has taken account of the role played by each undertaking inthe conclusion of the home market agreement or principle of not transhipping tohome markets and the arrangements and measures agreed to supplement theagreement or principle and/or assist in its implementation, the participation of eachundertaking in the various measures or arrangements agreed to supplement theagreement or principle and/or assist in its implementation, and the duration of suchmeasures and arrangements. 4951. On the basis of those considerations, the Commission identifies two categories ofundertaking. 4952. The first category includes those which, in its view, bear the greatest responsibilityin the infringement relating to the Cembureau agreement, in that they 'participated in the Cembureau agreement or principle through accession to itand/or application of the measures and arrangements agreed to supplement theagreement or principle and having direct effects tending to partition homemarkets (contested decision, recital 65, paragraph 9, subparagraph (a)). It is clearfrom recital 65, paragraph 9(a), second indent in fine, and (b), first indent, that, bythose measures and arrangements, the Commission means the infringementsreferred to in Articles 3 and 4 of the contested decision. 4953. Within that first category the Commission identifies three sub-sets. 4954. In the first of those, it places the undertakings which 'as Cembureau members,participated directly in the conclusion of the agreement or principle ofnon-transhipment to home markets (contested decision, recital 65, paragraph 9(a),first indent). Among the applicants referred to in paragraphs 4929 to 4948,Aalborg, Unicem, Irish Cement, Italcementi and Cementir are included in that sub-set. 4955. The second sub-set contains the undertakings which 'performed, through their mostsenior staff, the function of Head Delegate within Cembureau either at the timewhen the agreement or principle of non-transhipment to home markets was agreedor during the period of its implementation (contested decision, recital 65,paragraph 9(a), second indent). The Commission considers (ibidem) that 'thereis thus no doubt as to the essential role of these undertakings in the conclusionand/or implementation of the agreement, adding that those undertakings alsoparticipated in measures implementing the Cembureau agreement designed directly to protect home markets. Among the applicants referred to in paragraphs 4929 to4948, CBR, Dyckerhoff, Ciments Français, Heidelberger, Asland and Cimpor arein that sub-set. 4956. The third sub-set groups together the undertakings which 'participated in measuresimplementing the Cembureau agreement or principle that were designed directlyto protect home markets (contested decision, recital 65, paragraph 9(a), thirdindent). Among the applicants referred to in paragraphs 4929 to 4948, Vicat,Uniland, SECIL and Holderbank are in that sub-set. 4957. It is apparent from the information communicated by the Commission during thepresent proceedings (see paragraph 4738 above) that the basic rate of the fineimposed on the undertakings in that first category was 4% of their referenceturnover. 4958. The second category includes the undertakings which 'bear a lesser responsibilityfor the Cembureau agreement (contested decision, recital 65, paragraph 9(b)). 4959. Within that second category, the Commission again identifies three sub-sets. 4960. In the first, it places the undertakings which 'participated only in the measuresimplementing the Cembureau agreement or principle that were designed to channelproduction surpluses to third countries (contested decision, recital 65, paragraph9(b), first indent). In its view (ibidem), such measures 'have less direct effects onthe protection of home markets than those described in Chapters 4 and 5. Among the applicants referred to in paragraphs 4929 to 4948, Valenciana, HornosIbéricos and Halkis are included in that sub-set. 4961. The second sub-set concerns the undertakings which, 'though participating inmeasures implementing the Cembureau agreement or principle that were designeddirectly to protect home markets, tried to avoid implementing the Cembureauagreement to which they acceded (contested decision, recital 65, paragraph 9(b),second indent). There is no longer any point in assessing whether the identificationof that sub-set is well founded because the fines imposed on the three undertakingsin it, namely Cedest, Heracles and Titan have been annulled (see paragraph 4718above). 4962. A third sub-set contains Ciments Luxembourgeois, which, 'though a direct memberof Cembureau and though participating in the Head Delegate meetings at whichthe Cembureau agreement or principle was agreed, did not, as far as theCommission is aware, put into effect any implementing measure (contesteddecision, recital 65, paragraph 9(b), third indent). In its view (ibidem), the 'lessactive role [of that undertaking] therefore warrants its inclusion in the group ofundertakings that bear a lesser responsibility. 4963. According to the information provided by the Commission during the presentproceedings (see paragraph 4738 above), the basic rate of the fine imposed on theundertakings in that second category was 2.8% of their reference turnover. 4964. The Court finds that the Commission's analysis set out in paragraphs 4950 to 4963above appropriately assesses the degree of responsibility borne by each of theapplicants for the infringement in relation to the grey cement market in respect ofwhich they were fined. 4965. As the Court has held in paragraphs 4753 to 4766 above, the Commission chose,properly, to impose fines, in relation to the grey cement market, in respect of theinfringement constituted by the Cembureau agreement rather than to imposeseparate fines in respect of the various constituent elements of that infringement. In those circumstances, it was justified in assessing the overall responsibility of theundertakings involved in that infringement. It was not required to evaluate thespecific role played by each of them in the various unlawful acts found in thecontested decision. 4966. The number of individual infringements committed by a given undertaking in theframework of the Cembureau agreement does not constitute, in the present case,an appropriate criterion by which to assess its degree of responsibility in thatagreement. Each undertaking that was a party to it sought to ensure non-transhipment to home markets by means of the number of measures deemednecessary in the light, in particular, of its commercial interests and the geographicalsituation of its natural market. The fact of having taken part, in the light of thosefactors, in fewer unlawful measures does not consequently reflect a lesser degreeof adhesion to the Cembureau agreement and, therefore, a lesser responsibility inthe infringement in respect of which a fine was imposed. 4967. As for the gravity of each of the measures implementing the Cembureauagreement, it is apparent from the Commission's arguments set out in paragraphs4950 to 4963 above that it drew a distinction between the measures referred to inArticles 3 and 4 of the contested decision, on the one hand, and the measureschannelling production surpluses to non-member countries, on the other. Theundertakings involved in the former were fined at a basic rate of 4% of theirreference turnover. Those whose participation in the Cembureau agreementstemmed exclusively from their involvement in the latter measures were fined at abasic rate of 2.8% of their reference turnover. 4968. Such differentiation is well founded, a point which is, moreover, not formallydisputed by any applicant. The practices found in Articles 3 and 4 of the contesteddecision which constituted measures implementing the Cembureau agreement were,as the Commission rightly points out in recital 65, paragraph 9(a), measures aimedat directly protecting home markets. Such practices were far more serious thanmeasures to channel production surpluses to non-member countries, which, as the Commission rightly observes in recital 65, paragraph 9(b), had less direct effects onthe partitioning of home markets. 4969. For the remainder, the Commission was not required to assess the gravity of eachmeasure within each group of measures arising from the distinction considered inthe two preceding paragraphs. First of all, those measures were not finedseparately, since the Commission properly chose to impose one fine in respect ofthe infringement found in Article 1 of the contested decision (see paragraphs 4760to 4765 and 4965 above). Next, the measures falling within the first of those twogroups were all equally serious. They were all designed directly to partition homemarkets, each within the geographical area in which they were to produce theireffects. There is no longer any purpose in dealing with the measures in the secondgroup, since the only measure of that type which has been established is thecontinuous concerted practice of the EPC. 4970. In conclusion, the arguments of the parties must be rejected. 4971. It has been found that Unicem did not take part in the Head Delegates meetingsof 14 January 1983 and 19 March and 7 November 1984 and that it did nottherefore participate directly in the conclusion of the Cembureau agreement (seeparagraphs 1405 to 1412 above). 4972. It has also been held that the Commission wrongly found that infringements oraspects of infringements referred to in Articles 2 to 5 of the contested decision hadbeen committed by parties to which it was addressed. 4973. Thus, as regards the applicants mentioned in paragraph 4720 above:  the infringement with which CBR is charged in Article 4(4)(g) is notestablished (see paragraphs 3619 to 3646 above);  in Article 2(2)(a) the Commission was wrong to find that the system ofperiodic exchange of price information in which Ciments Luxembourgeois,Aalborg, Unicem, Irish Cement, Italcementi and Cementir participatedrelated, so far as concerned the Belgian and Netherlands prices, to thosetwo countries' producers' minimum prices for supplies of cement by lorryand, so far as concerns Luxembourg, that country's producer's prices,inclusive of rebates (see paragraphs 1584 to 1593 above);  in Article 3(3)(a) the Commission was wrong to accuse Dyckerhoff, CimentsFrançais, Heidelberger and Lafarge of an agreement to share the Saarlandmarket (see paragraphs 2172 to 2225 above);  the infringement with which Dyckerhoff, Aalborg, Unicem, Irish Cement,Italcementi and Cementir are charged in Article 5 is not established (seeparagraphs 3771 to 3850 above);  the participation of Ciments Français in the infringement found in Article4(3)(a) is not established (see paragraphs 3208 to 3215 above);  the participation of Heidelberger and Asland in the infringement found inArticle 4(2) and (3)(a) is not established (see paragraphs 3039 to 3046, 3057to 3065, 3216 to 3223 and 3254 to 3263 above);  in Article 3(1)(a) the Commission was wrong to accuse Lafarge ofparticipating in a concerted practice with Buzzi involving the sharing of themarket in southern France and the restriction of their autonomy of conductwith regard to production sources (see paragraphs 1831 to 1835 above);  the infringements with which Lafarge is charged in Article 4(4)(e) and (f)are not established (see paragraphs 3570 to 3617 above);  the participation of Unicem in the infringement found in Article 2(1) andin Article 4(2) is not established (see paragraphs 1549 to 1555 and 3047 to3056 above);  the infringements with which Holderbank is charged in Article 4(4)(c) and(d) are not established (see paragraphs 3515 to 3569 above);  the infringement with which Aker and EUROC are charged in Article4(4)(h) is not established (see paragraphs 3648 to 3678 above);  the participation of Cementir in the infringements found in Article 4(1) and(2) is not established (see paragraphs 2767 to 2782 and 3076 to 3080above);  the infringements with which Blue Circle is charged in Article 4(4)(a) and(b) are not established (see paragraphs 3402 to 3513). 4974. Furthermore, it has been held that Ciments Français, by participating in theconcerted practice found in Article 3(1)(b) of the contested decision, did notimplement the Cembureau agreement, in respect of which a fine was imposed inArticle 9 (see paragraphs 4040 to 4042 and 4058 above). 4975. Those various factors cannot however result in a reduction in the fine imposed onthe undertakings concerned. As has been stated in paragraphs 4753 to 4766 and4965 above, the Commission did not impose separate fines in respect of the variousunlawful practices covered by the Cembureau agreement. The Commission properly decided to penalise participation in that agreement as such. In spite ofwhat has been stated in paragraphs 4971 to 4974, such participation is still, for eachof those undertakings, of the gravity correctly found by the Commission in recital65, paragraph 9, of the contested decision. 4976. Thus, it is still established that the undertakings in the category referred to inrecital 65, paragraph 9(a), of the contested decision manifested their continuousadhesion to the Cembureau agreement by taking part in one or more of themeasures implementing that agreement which were rightly regarded as the mostserious, namely those designed directly to protect home markets. As for CimentsLuxembourgeois, the factor mentioned in the second indent of paragraph 4973above does not call in question the assessment made by the Commission in recital65, paragraph 9(b), third indent, relating to its degree of responsibility in theCembureau agreement. 4977. Thirdly, Vicat, Unicem and SECIL submit that they did not attend the HeadDelegates meetings in 1983 and 1984 during which the Cembureau agreement wasadopted. They therefore played no role at all in the conclusion of that agreement. Nevertheless, they were fined as heavily as the undertakings which had not onlytaken part in measures implementing the Cembureau agreement but had even beenparty to the conclusion and confirmation of the agreement at the above meetings. 4978. However, the Court points out that those applicants participated in theinfringement in respect of which a fine was imposed in Article 9 of the contesteddecision through one or more measures implementing the Cembureau agreementthat were rightly regarded by the Commission as the most serious, namely thosedesigned directly to partition home markets. Vicat acceded to the Cembureauagreement through its participation in the concerted practice referred to inArticle 3(1)(c) (see paragraph 4315 above). Unicem acceded to that agreementparticularly through its participation in the agreements and concerted practicesreferred to in Article 4(1) and (3) (see paragraph 4340 above). SECILimplemented it by participating in the agreement referred to in Article 3(2) (seeparagraph 4370 above). The fact that those undertakings did not take part in theHead Delegates meetings during which the Cembureau agreement was adopteddoes not in any way diminish the extent of their accession to that agreement nor,therefore, the gravity of their responsibility in the infringement in question. TheCommission therefore rightly imposed a fine on them at a basic rate of 4% of theirreference turnover. The applicants' argument must therefore be rejected. 4979. Fourthly, Ciments Luxembourgeois criticises the Commission for not having takenaccount of the limited nature of its participation in the infringements found in thecontested decision. It points out that the Commission itself acknowledged that ithad not participated in most of the infringements. Nor did the Commissiondiscover any measure by it implementing the Cembureau agreement. 4980. However, as observed in paragraph 4962 above, the Commission, having regard tothe considerations set out in recital 65, paragraph 9(b), third indent, of thecontested decision, took the view that Ciments Luxembourgeois bore lesserresponsibility in the Cembureau agreement than the undertakings mentioned inrecital 65, paragraph 9(a). Accordingly, Ciments Luxembourgeois was fined at thebasic rate of 2.8% of its reference turnover, instead of at the rate of 4% appliedto the other undertakings. Those findings are sufficient to reject the arguments putforward by Ciments Luxembourgeois. 4981. Fifthly, Vicat maintains that, since a single fine is imposed in respect of twoinfringements, one of which is not established, the fine should be reducedaccordingly. 4982. However, it should be recalled that Vicat was fined under Article 9 of thecontested decision in respect of its participation in the infringement found inArticle 1, which was properly established by the Commission on the basis of thefinding that it had participated in the infringement referred to in Article 3(1)(c)(see paragraph 4315 above). Vicat's argument must therefore be rejected. 4983. Sixthly, Hornos Ibéricos maintains that, contrary to what is stated in recital 65,paragraph 9(b), of the contested decision, the Commission did not take account ofthe lesser gravity of its responsibility in the Cembureau agreement. A reductionof the rate of its fine to 2.8% would show that the limited duration of itsparticipation in that agreement, rather than just its participation in the EPC'sactivities, had been taken into account. 4984. However, it is apparent from the information submitted by the Commission (seeparagraph 4738 above) that it took account of the limited responsibility of HornosIbéricos in the Cembureau agreement by reducing the basic rate of its fine to 2.8%. The argument put forward by Hornos Ibéricos is thus unfounded. 4985. Seventhly, Halkis points out that, by setting only two basic rates for thedetermination of the fines, the Commission placed it on the same footing as otherGreek undertakings which it nevertheless accuses of a much greater number ofinfringements. Moreover, the Commission infringed the principle ofproportionality, in view of the minor difference between the fine imposed on it andthose imposed on the other European producers, even though the latter areaccused of conduct which is much more detrimental to competition. 4986. In that respect, the Court points out that although the participation of Halkis in theCembureau agreement has been established (see paragraph 4101 above) it has notbeen found that Heracles and Titan participated (see paragraphs 4074 to 4079above). 4987. Furthermore, the Commission could validly take the view that a reduction of thebasic rate of the fine from 4 to 2.8% (that is to say, a 30% reduction) was a fairreflection of the fact that account had been taken of Halkis' lesser responsibility inthe infringement in comparison with that of the undertakings mentioned in recital65, paragraph 9(a), of the contested decision. 4988. Halkis' argument must therefore be rejected. 4989. It follows from all the foregoing that the pleas examined must be dismissed. IX  Pleas alleging infringements of Article 190 of the Treaty, Article 15(2) ofRegulation No 17, and the principle of proportionality in assessing the responsibility ofindividual undertakings in respect of the infringement found in relation to the whitecement market 4990. Dyckerhoff claims that the Commission did not separately assess the gravity of theinfringement committed by each undertaking in the framework of the WCC. Itcomplains that it did not even briefly mention the role which it might have playedin the infringement found in Article 7 of the contested decision. 4991. Ciments Français points to its negligible role in the WCC, as attested by the extractof CBR's internal memorandum of 3 October 1985, according to which the WCCwas not able to fix export prices, on the ground in particular that Ciments Françaisno longer exported very much and that it was a spectator rather than a player(contested decision, recital 39, paragraph 3; document 33.126/9958). 4992. Valenciana claims that the Commission did not take account of various factorsshowing the lesser gravity of its participation in the WCC. It cites its absence fromthe meetings during which the rule of non-transhipment to home markets wasadopted and subsequently applied against Aalborg, as well as the lack of trustwhich the members of the WCC had in Valenciana. It further points to a passageof the contested decision (recital 40, paragraph 5) which reports that at the WCCmeeting of 3 October 1985 Lafarge sharply rebuked Valenciana for having'slashed its prices on the Tunisian market. 4993. Italcementi states that the Commission does not substantiate its allegations inrecital 65, paragraph 11, of the contested decision. In particular, it complains thatthe Commission did not make itself clear as to the specific responsibility attributedto Italcementi in the context of the infringement committed in the WCC. Next, itpoints to its altogether marginal role in the activities of the WCC on account of thelimited nature of its white cement export activities. 4994. It should be borne in mind that, in fixing the amount of the fines, regard must behad to all the factors capable of affecting the assessment of the gravity of the infringements, such as the role played by each of the parties to the infringement(Musique Diffusion Française and Others v Commission, cited in paragraph 439above, paragraphs 120 and 129, and IAZ and Others v Commission, cited inparagraph 1320 above, paragraph 52). Where an infringement has beencommitted by several undertakings, the relative gravity of the participation of eachof them must be examined (C-51/92 P Hercules Chemicals v Commission, cited inparagraph 142 above, paragraph 110 and Montecatini v Commission, cited inparagraph 270 above, paragraph 207). 4995. In the present case, the Commission states, in recital 65, paragraph 11, of thecontested decision, that all the undertakings mentioned in Article 7 played animportant role in the infringements committed in the context of the WCC. 4996. The Court finds that throughout the period of the infringement Dyckerhoff,Ciments Français and Italcementi in fact manifested their unconditional adherenceto the twofold rule on the respect for home markets and the channelling ofproduction surpluses under a general agreement, which was the WCC's object. They participated consistently in the meetings and activities of the WCC. Theytook the initiative, along with Lafarge and CBR, of setting up the new WCC inJanuary 1984, after it was found that Aalborg's infringement of the above rulemade it impossible to cooperate with Aalborg. They actively participated in theWCC meetings held between June and October 1986 for the purpose of examiningretaliatory measures to counter possible attacks by Aalborg on their home markets. The Commission was therefore right to consider that those undertakings played animportant, and equally serious, role in the infringement fined in Article 10 of thecontested decision. 4997. On the other hand, although it has been established that Valenciana participatedin that infringement (see paragraphs 4627 to 4659 above), aspects relating to theperiod of the infringement it was found to have committed, namely between 1January 1986 and 26 May 1988, reveal less strict adherence on its part to theunlawful rule agreed at WCC level and lesser involvement in the most flagrantapplications of that rule, namely the conduct of that committee vis-à-vis Aalborg. 4998. First, it is apparent from the record of the WCC meeting of 24 July 1986(contested decision, recital 39, paragraph 12; documents 33.126/9882 and 9883) thatthe members of the WCC considered the case of Valenciana, which had not beeninvited to the meeting, and that they wondered about the approach to take inregard to it. CBR first of all observed that the 'strategy proposed by Lafarge forthe [United States] and 'Valencia's own strategy competed with each other. Ciments Français stated: '[T]he Spanish are not people who would readily givetheir opinion or their word. They cannot be trusted as much as the othermembers. CBR however was of the view that it was 'difficult not to have themparticipate. Lafarge, for its part, said: '[W]e cannot take the risk of provokingValenciana into leaving the WCC by continuing to meet without them, which they will end up by hearing about. We must be patient with them, however irritatingthat may be. Item 4 ('Other business) of the record states that Mr Fraisse, ofLafarge, after having pointed out that at the time 'Aalborg's delivery price to GPI[Florida] [was] USD 106 cif per short ton, adds: 'Valenciana offered USD 90 cifper short ton! 4999. At the WCC meeting of 2 October 1986 which was a follow-up to that of 24 July1986, Ciments Français stated that 'Spain [was] as dangerous as Aalborg (CBR'srecord of that meeting; contested decision, recital 39, paragraph 4; document33.126/9874). 5000. Those statements show that at that time Valenciana was temporarily excluded fromthe WCC's deliberations because its conduct on the overseas export markets didnot appear, in the eyes of the other members, to comply with the WCC's rule onthe channelling of production surpluses under a general agreement. 5001. On the other hand, although it had supported Aalborg's exclusion from the WCC(see paragraphs 4639 to 4645 above), Valenciana was not involved in thedeliberations of that committee on the retaliatory measures that might be envisagedto counter a possible attack by Aalborg on the home markets of the WCCmembers. It did not attend the meeting of 19 and 20 June 1986, during which itwas agreed to organise a special seminar, on 24 July 1986, to consider thoseretaliatory measures (contested decision, recital 39, paragraph 11; documents33.126/9914 to 9920). As observed in paragraph 4998 above, it was not invited totake part in the last-mentioned meeting (contested decision, recital 39, paragraph12; documents 33.126/9876 to 9883). 5002. It thus follows from the foregoing that Valenciana bears less responsibility in theinfringement for which a fine is imposed in Article 10 of the contested decision. 5003. According to the information provided by the Commission (see paragraph 4738above), Valenciana was fined at a basic rate of 4% of its reference turnover. Inview of the foregoing, the Court considers, in the exercise of its unlimitedjurisdiction, that that rate should be reduced to 2.8%. 5004. In conclusion, the plea by Valenciana alleging infringement of Article 15(2) ofRegulation No 17 must be upheld in so far as it concerns the white cement market. The other pleas examined must be rejected. X  Pleas alleging infringements of Article 15(2) of Regulation No 17, theprinciples of proportionality and equal treatment, and manifest errors ofassessment as regards the turnover taken into account for the purpose ofcalculating the fines 5005. A number of applicants dispute the turnover figure used by the Commission tocalculate their fine. 5006. First, Vicat, Ciments Français, Unicem, Italcementi, Holderbank and Cementirclaim that under Article 15(2) of Regulation No 17 the Commission is required tocalculate fines on the basis of the turnover for the business year preceding that inwhich the contested decision is adopted. In the present case, that should thereforebe turnover for 1993. However, the Commission took into account turnover for1992. Ciments Français and Italcementi claim that, at the very least, theCommission should have given reasons for such a choice in the contested decision. 5007. Ciments Français, Italcementi and Cementir add that the Commission was in aposition to calculate the fine on the basis of their turnover for 1993 since they hadsent that figure with the figure for 1992. In their view, the Commission should havetaken all necessary measures to have all the undertakings do likewise. 5008. Vicat, relying on Boël v Commission, cited in paragraph 1353 above (paragraph133), claims that that error had serious consequences, since its turnover in 1993 waslower than that for 1992, which increased the disproportionate nature of the fineimposed upon it. Ciments Français points to an increase in its fine in the order ofa million ecu. Unicem, Holderbank and Cementir observe that their turnover in1992 was much higher than in 1993. The Commission's choice, in their view,significantly increased their fine. Italcementi states that its turnover in 1992 was22% greater than in 1993. 5009. The Court points out that 'preceding business year, within the meaning ofArticle 15(2) of Regulation No 17, refers to the last full business year of each ofthe undertakings concerned as at the date of adoption of the contested decision,that is to say, in the present case, the 1993 business year. Reference to that yearis, however, relevant only to the upper limit of the fine, 10%, which may beimposed on an undertaking for infringement of Article 85(1) of the Treaty (seeMusique Diffusion and Others v Commission, cited in paragraph 439 above,paragraph 119, and PVC, cited in paragraph 734 above, paragraph 1146). It istherefore open to the Commission to take into account, when determining thefines, the turnover relating to an earlier business year, provided that the finecalculated on that basis does not exceed the abovementioned limit. 5010. In the present case, it is apparent from the information provided by theCommission (see paragraph 4738) that the fines imposed in respect of theinfringements committed on the grey and white cement markets were calculated onthe basis of the turnover relating to the 1992 business year of the undertakingsconcerned. 5011. Since none of the applicants has established that this choice of business yearresulted in the imposition of a fine exceeding the limit set by Article 15(2) of Regulation No 17, it must be held that the Commission was justified in taking suchturnover as the basis for calculating the fine. 5012. Furthermore, as regards Vicat, the Court in Boël v Commission, cited in paragraph1353, reduced the fine imposed on the undertaking concerned because its turnoverduring the reference year applied by the Commission, namely 1985, had been thehighest of the whole period of the infringement in question, whilst the turnover ofthe other undertakings involved in the infringement had been less significant in thatyear. The Court considered that, for that undertaking, the choice of that year hadmerely exacerbated the disproportionate nature of the fine imposed upon it (seeBoël v Commission, cited in paragraph 1353 above, paragraph 132). 5013. In the present case, it is sufficient to state that, according to the information whichit provided in the course of proceedings (reply of 3 July 1998 to a written questionput by the Court on 29 May 1998), Vicat achieved a turnover in 1992 that wascertainly greater than in 1993, but lower than that in the four preceding years. 5014. It follows from the foregoing that the arguments of the applicants must be rejected. 5015. It is apparent from paragraph 4814 above that, with the exception of Unicem,Italcementi and Cementir, none of the applicants mentioned in paragraph 4720above was still participating in the infringement in 1992. The reference year chosenby the Commission, in terms of turnover, for the purpose of calculating the finesis not therefore within the period in which the Court has found that theyparticipated in the Cembureau agreement. 5016. However, such a finding cannot call into question the choice made at the relevanttime by the Commission. 5017. On the one hand, none of the applicants has submitted that, in the event that theCourt should find that it did not participate in the Cembureau agreement until theend of the reference period applied by the Commission, its fine should berecalculated on the basis of the turnover for the year during which it ceased toparticipate in the infringement or that relating to the last business year fallingentirely within the infringement period found by the Court. 5018. Moreover, so far as concerns the infringement relating to the white cement market,it is clear from the information sent by the Commission (see paragraph 4738 above)that the Commission also correctly relied (see paragraphs 5009 to 5011 above) onthe turnover of the undertakings concerned in 1992, even though it finds that thatinfringement continued only until 26 May 1988. In the contested decision, the dateof the end of the period of infringement was not therefore the decisive criterion asregards the reference year to be taken into account, in terms of turnover, whendetermining the fines. 5019. Secondly, the applicants criticise the Commission for having calculated the fine onthe basis of turnover that was too widely defined in terms of geography andproducts. 5020. Vicat and Ciments Français submit that the turnover which should have been takeninto account is their turnover in the geographical area(s) affected by the specificinfringement(s) in which they are alleged to have participated. Relying on ParkerPen v Commission, cited in paragraph 643 above, Vicat states that the turnover onthe geographical market of its plant in La Grave de Peille is only 12% of its totalturnover, that is to say, a relatively low amount by comparison with its turnoverfrom total sales. Lafarge submits that the Commission, once it had dropped thenational objections, should have taken account only of the turnover relating toexports. Italcementi claims that the Commission should only have used the turnoverrelating to its sales on the local northern Italian markets and on those of borderingcountries. 5021. Unicem, Italcementi and Cementir submit that turnover relating to sales of clinkershould not have been incorporated in the figure used to calculate the fines. TheCommission found restrictions on competition only on the cement market. Italcementi lays particular emphasis on the fact that the order set out in Article 8of the contested decision does not mention the clinker market. Moreover, thecontested decision itself states (recital 11, paragraph 1) that grey cement, whitecement and clinker constitute separate markets, since each product meets differentrequirements. 5022. In this connection, the turnover referred to in Article 15(2) of Regulation No 17as the upper limit of a fine must be understood as referring to the total turnoverof the undertaking concerned, which alone gives an approximate indication of itssize and influence on the market (see Musique Diffusion Française and Others vCommission, cited at paragraph 439 above, paragraph 119, T-13/89 ICI vCommission, cited at paragraph 323 above, paragraph 376, and Baustahlgewebe vCommission, cited at paragraph 415 above, paragraph 158). Article 15(2) ofRegulation No 17 contains no territorial limit in regard to the turnover (Case C-279/87 Tipp-Ex v Commission [1990] ECR I-261, summary publication, paragraph39). 5023. Provided it remains within the limit laid down by Article 15(2), the Commissionmay choose which turnover to take in terms of territory and products in order todetermine the fine. 5024. In the present case, it is apparent from the information provided by theCommission (see paragraph 4738) that, when determining the fine imposed inrespect of the infringement committed on the grey cement market, it relied on theturnover relating to sales of grey cement and clinker for grey cement within theterritory of the Member States of the Community in 1992. In order to determine the fine imposed in respect of the infringement committed on the white cementmarket, it took the turnover relating to sales of white cement and white cementclinker within the territory of the Member States of the Community for the sameyear. 5025. Having regard to the rate of the fine applied by the Commission to that basicfigure (4 or 2.8%, as appropriate), the fines laid down in Articles 9 and 10 of thecontested decision are well below the upper limit set down in Article 15(2) ofRegulation No 17, a fact not disputed by any of the applicants. 5026. As regards Vicat, it should be pointed out that the Community judicature has in thepast indeed found that the fact that the turnover realised by the undertaking inquestion from the products concerned by the infringement represented no morethan a small proportion of its total turnover indicated that the infringementcommitted by it was less serious and that its fine should be reduced accordingly(see Musique Diffusion and Others v Commission, cited in paragraph 439 above,paragraph 121, and Parker Pen v Commission, cited in paragraph 643 above,paragraph 94). 5027. However, in the present case, Vicat does not claim that its turnover in thereference year from the product concerned by that infringement, as defined inrecital 11, paragraph 1, represented only a small proportion of its total turnover. Its argument is based on the modest nature, by comparison with its total turnover,of sales from its plant in the south of France mentioned in 'The Facts (recital 20,paragraph 1) relating to the concerted practice with which it is charged inArticle 3(1)(c). However, as held in paragraphs 1093 and 1094 above, thegeographical market concerned by the infringement relating to the Cembureauagreement, in respect of which Vicat was fined in Article 9, was Europe. SinceVicat does not argue that its sales on the European market represented only asmall part of its total turnover, it cannot properly rely on the judgment in ParkerPen, cited in paragraph 643 above. 5028. Cementir pleads that there was an accounting error in the figures it sent to theCommission with its letter of 22 February 1994. In that letter, it sent figuresincluding amounts relating to the supply of goods and services which wereunconnected, in its view, with sales of grey cement and clinker, namely amountsrelating to the reimbursement of transport costs, sales of bags and, to a lesserextent, to other services. It explains that, on noticing its mistake, it asked theCommission on 22 February 1995 to alter the fine imposed in the contesteddecision, in line with the correct figures in the accounting certificate from theauditing firm of Arthur Andersen, a request which was rejected by the Commissionon 2 March 1995. It is convinced that other undertakings restricted themselves tosending the Commission figures relating only to sales of grey cement. By notcarrying out the requested correction, the Commission not only calculated its fine on the basis of erroneous figures but also infringed the principle of equaltreatment. 5029. That argument cannot however be accepted. 5030. So far as concerns transport costs, where, at the customer's request, a cementproducer delivers the quantities sold to a specified destination the transport servicebecomes an integral part of the sale of the product. The price charged for such aservice, even where it corresponds, as Cementir maintains, to the reimbursementof amounts payable by the seller to the independent carrier on whose services ithas called, is therefore a component of the total sale price, as the system of quotinga price for delivery to a given destination reflects for that type of sale. 5031. So far as concern the supply of bags, Cementir cannot reasonably dispute that,when selling bagged cement, sale of the bag is an integral part of sale of theproduct. The price charged for such supply is therefore a component of the totalprice of the transaction. 5032. Cementir provides no particulars of the 'other services which are allegedlyunrelated to the sales of grey cement and of clinker for grey cement. Finally, itsclaim that other undertakings had not communicated to the Commission theirturnover relating to sales of grey cement is mere speculation. Cementir cannottherefore plead breach of the principle of equal treatment. 5033. Fourthly, Ciments Français, Italcementi and Holderbank criticise the Commissionfor having included in the turnover used in calculating their fine the turnover ofsubsidiaries which are not concerned by the contested decision. 5034. Ciments Français cites the case of its Spanish subsidiaries Financiera y Minera(hereinafter 'FyM) and Cementos Rezola (hereinafter 'Rezola), its Belgiansubsidiary CCB (see paragraph 1169 above) and its Greek subsidiary Halyps. Itadds that, as it had pointed out to the Commission in February 1994 when it sentit its data on turnover in 1992 and 1993, it did not take over Rezola until July 1989,FyM until January 1990 and Halyps until May 1990. It claims that the rate of itsfine, applied to its own turnover, is 6.5%. 5035. Italcementi cites the case of its two subsidiaries, Cementerie di Sardegna andCementerie Siciliane, stating that it does not fully control them. 5036. Holderbank mentions the case of its two Belgian subsidiaries Ciments d'Obourgand Ciments d'Origny. 5037. Ciments Français and Holderbank add that, by proceeding in that way, theCommission penalised subsidiaries not concerned by the contested decision more heavily than subsidiaries which it had considered responsible for infringements ofArticle 85(1) of the Treaty. 5038. Ciments Français asserts that the Commission applied a different procedure andfine to the foreign subsidiaries of groups charged in the contested decision than itdid to their parent company, even though it was a majority, or even sole,shareholder in them throughout the period in question. It cites the cases of ENCI,Hornos Ibéricos, Alsen-Breitenburg, Nordcement, Asland, Heracles, Cementir,CBR and Cedest, which received a fine in respect of the infringements allegedagainst them individually, without their turnover having been included in that of theparent company in order to calculate the fine imposed on the latter. CimentsFrançais considers itself to have been the victim of discriminatory treatmentinasmuch as the undertakings in its group, although not referred to in the contesteddecision, were fined more heavily than the undertakings acknowledged to haveconducted themselves unlawfully. 5039. Holderbank states that it was fined at a rate of 4% of its turnover, which includedthat of its two Belgian subsidiaries mentioned in paragraph 5036 above. Therefore,those of its subsidiaries which were individually fined in the contested decision inrespect of their participation in the Cembureau agreement (Alsen-Breitenburg,Nordcement and Hornos Ibéricos) were treated more favourably than its twoBelgian subsidiaries. They were fined at a rate of 2.8% of their turnover, whereasthe two Belgian subsidiaries were fined at a rate of 4% as a result of theincorporation of their turnover into the figure used to calculate the fine on theirparent company. 5040. In that connection, the Court points out that where the perpetrator of aninfringement heads a group which constitutes an economic unit the turnover of thegroup as a whole must be taken into account when calculating its fine. Thatturnover is the best indicator of its economic weight on the market. 5041. In the present case, Italcementi does not dispute that it controls CementerieSiciliane and Cementerie di Sardegna. At most it states that it does not fullycontrol them. Upon being requested to expand on that point by a written questionof 10 June 1998, it produced on 20 July 1998 a series of documents from which itis clear that until 1986 it was sole shareholder in those two subsidiaries and thatsince that date it holds 71.41% of share capital of the former and 76.67% of sharecapital of the latter. 5042. In those circumstances, the Commission was right, in view of the economic unitconstituted by Italcementi and its two subsidiaries, to include the subsidiaries'turnover in the figures used to calculate the fines imposed on Italcementi underArticles 9 and 10 of the contested decision. 5043. Holderbank does not deny that it wholly controls Ciments d'Obourg and Cimentsd'Origny. In those circumstances, the Commission was right, in view of theeconomic unit constituted by Holderbank and its two Belgian subsidiaries, toinclude the subsidiaries' turnover in the figure used to calculate the fines imposedon Holderbank under Article 9 of the contested decision. 5044. Ciments Français does not dispute that, when it took part in the infringementsfound to have been committed on the grey cement and white cement markets, itcontrolled CCB. At most, it indicated during the course of proceedings (reply of3 July 1998 to a written question put by the Court on 29 May 1998) that theturnover of its Belgian subsidiary had not been incorporated into its accountingsystem until 1 July 1990. 5045. On the other hand, it is apparent that Ciments Français took control of FyM,Rezola and Halyps when its participation in the abovementioned infringements hadcome to an end. The participation of Ciments Français in the Cembureauagreement is not established after 17 February 1989 (see paragraphs 4318 to 4321above) and the infringement in which it took part in the framework of the WCCis held to have continued until 26 May 1988 (Article 7 of the contested decision). In those circumstances, it is necessary to exclude, from the figure used by theCommission in determining the fines to be imposed on Ciments Français in Articles9 and 10, amounts relating to sales by its three subsidiaries during the referencebusiness year on the Community market for grey cement and for clinker for greycement and on that for white cement and for clinker for white cement. 5046. It is apparent from the information provided by the Commission (see paragraph4738 above) that the turnover taken into account by it when calculating the fineimposed on Ciments Français in respect of its participation in the Cembureauagreement amounted to FRF 4 232 000 000. According to the informationprovided by Ciments Français in the course of proceedings (see the reply to thewritten question put by the Court referred to in paragraph 5044 above), theturnover from the aggregate sales in 1992 by FyM, Rezola and Halyps on theCommunity market for grey cement and for clinker for grey cement wasFRF 650 000 000. The fine imposed on Ciments Français in respect of itsparticipation in the infringement found in Article 1 of the contested decision shouldbe recalculated on the basis of a lower reference turnover of FRF 3 582 000 000. 5047. So far as concerns the infringement in respect of which a fine is imposed inArticle 10 of the contested decision, the information provided by the Commission(see paragraph 4738 above) shows that the turnover taken into account by it whencalculating the fine imposed on Ciments Français in respect of its participation inthat infringement amounted to FRF 181 000 000. According to the informationprovided by Ciments Français mentioned in the preceding paragraph, the turnovercorresponding to the aggregate sales in 1992 by FyM, Rezola and Halyps on the Community market for white cement and for clinker for white cement wasFRF 1 000 000. The fine imposed on Ciments Français for participating in theinfringement found in Article 7 of the contested decision should therefore berecalculated on the basis of a lower reference turnover of FRF 180 000 000. 5048. The Court must reject the arguments put forward by Ciments Français andHolderbank alleging that the subsidiaries referred to in the contested decision weretreated differently from other subsidiaries as regards fines. 5049. They cannot claim that the subsidiaries not mentioned in the contested decisionwere nevertheless fined as a result of the incorporation of their turnover into thatof their parent company for the purpose of calculating the fine imposed on it. Thefines in Article 9(2) and (21) are imposed on the 'undertakings 'HolderbankFinancière Glar[u]s SA and 'Société des Ciments Français SA. The fine inArticle 10(4) is imposed on the 'undertaking 'Société des Ciments Français SA. Those two undertakings are the addressees of the contested decision (seeArticle 12(2) and (17)). They alone are therefore liable for those fines. The factthat the burden of those fines might be shared out within the group headed bythose undertakings is of no relevance from the point of view of the rules on thedetermination of fines. 5050. It follows from the foregoing considerations that, subject to what has been held inparagraphs 5046 and 5047 above regarding Ciments Français, the pleas examinedmust be rejected. XI  Pleas alleging infringements of Article 15(2) of Regulation No 17, and theprinciples of equity, proportionality and equal treatment, owing to the fixing of the finesin ecus and the choice of conversion rate 5051. Asland and Cementir, relying on Joined Cases 41/73, 43/73 and 44/73 SociétéAnonyme Générale Sucrière and Others v Commission [1977] ECR 445, and Uniland,claim that Community law does not require the Commission to express the amountof a fine in ecus. The Commission is only required to avoid unjustified differencesin treatment between participants in the same infringement solely on account ofappreciation or depreciation in national currency, which the Commission failed todo in this case. 5052. Those applicants, with Unicem and Italcementi, complain that the Commissionconverted into ecus the turnover figures expressed in national currencies, using theaverage exchange rate for 1992. In their view, such calculation should have beenmade at the exchange rate in force on the day on which the contested decision wasadopted or notified. Unicem, Asland and Cementir add that the other possibilityopen to the Commission was to calculate and express the fine in the nationalcurrency of the Member State of the undertaking concerned. 5053. The applicants specified in the preceding paragraph claim that their nationalcurrency depreciated as against the ecu between 1992 and November 1994. Theyconsider themselves to have suffered unjustified discrimination in comparison withundertakings from a country whose currency remained stable or has appreciatedas against the ecu during that period. Unicem claims that the Commission's choiceincreased their fine by 23.16%. Asland estimates the detriment at approximatelyESP 170 000 000. It compares the value of the fine imposed upon it with thatwhich an undertaking in its position would have incurred had its turnover for thereference year been expressed in German marks at that year's rate of exchange. Uniland calculates the detriment at ECU 361 000. Italcementi considers its finewas increased by about 25% as a result of the Italian lira's devaluation in relationto the ecu between 1992 and November 1994. Cementir estimates a 23% increasein the actual burden of its fine between the reference year applied by theCommission for the conversion into ecu of the amounts expressed in nationalcurrencies and the year in which it lodged its application. In real terms, its finecorresponds to a fine of 5.5% of its 1992 turnover, at the 1995 rate of exchangefrom ecu to Italian lire. 5054. The Court points out that the Commission is entitled to express the amount of thefine in ecus, a monetary unit convertible into national currency. The possibility ofconverting the ecu into national currency distinguishes it from the unit of accountoriginally referred to in Article 15(2) of Regulation No 17, in respect of which theCourt of Justice (Société Anonyme Générale Sucrière, cited in paragraph 5051 above,paragraph 15) expressly recognised that, not being a currency in which payment ismade, it necessarily entailed the fixing of the amount of the fine in nationalcurrency (Case T-157/94 Ensidesa v Commission [1999] ECR II-0000, paragraph470, and PVC, cited in paragraph 734 above, paragraph 1220. 5055. In the present case, it is apparent from the information provided by theCommission (see paragraph 4738 above) that in order to calculate the fines, itconverted the turnover figures expressed in national currency into ecus on the basisof the average exchange rate for the year to which those figures related, namely1992. 5056. The arguments put forward by the applicants to the effect that such a conversionshould have been carried out at the exchange rate on the date of adoption ornotification of the contested decision cannot be upheld. Since the Commissionproperly chose (see paragraphs 5009 to 5011 above) to calculate the fine on thebasis of the 1992 turnover, it was entitled to convert it from the national currencyin which it was expressed using the average exchange rate for that reference year. If such an approach may mean that a particular undertaking must pay an amountin its national currency which is more or less than the amount it would have hadto pay if the exchange rate in force on the date of notification or adoption of thecontested decision had been applied, that is merely the logical result of fluctuationsin the real value of the various national currencies. 5057. In any event, none of the applicants has established that through depreciation inthe currency of its own Member State the fine imposed on it under Article 9 and,in the case of Italcementi, Article 10 of the contested decision, even whenexpressed in national currency, exceeds the upper limit laid down in Article 15(2)of Regulation No 17. 5058. The pleas examined must therefore be dismissed. XII  Pleas alleging infringements of various general principles of Community law 5059. A number of applicants argue that the determination of the fines is vitiatedinasmuch as they infringe various general principles of Community law: theprotection of legitimate expectations, non bis in idem and equal treatment. 5060. First, Lafarge claims that, in view of the Commission's conduct during the periodin question (lack of reaction to the publication of the study carried out in 1976 atits request by Mr Phlips on 'Spatial pricing and competition  a study cited inrecital 10 of the contested decision ; informal assessments of the price systemcontemplated by CBR, as well as the dumping of imports from eastern (European)countries; approach to the 'Greek file), the European cement producers wereentitled to think that their conduct complied with the Community competition rulesor, at least, was tolerated. By imposing such a heavy fine on Lafarge, theCommission infringed the principle of the protection of legitimate expectations. 5061. That plea is unfounded. In the contested decision, the Commission does notcriticise at all the parties' discussing systems of price-setting and dumped imports. Its criticism is aimed at conduct whereby those parties sought to protect homemarkets and regulate the transfer of cement from one country to another. Lafargecannot seriously claim that the arguments it puts forward in support of its plea inlaw could reasonably have made European cement producers believe that suchconduct, which is formally prohibited by Article 85(1) of the Treaty, was permissibleunder Community competition rules. 5062. Secondly, Dyckerhoff, Uniland and Holderbank  the latter in its reply  complainthat the Commission fined them twice in respect of the same conduct, first for theiraccession to the Cembureau agreement referred to in Article 1 of the contesteddecision and a second time for participating in measures implementing thatagreement. Blue Circle claims that the fine imposed on it for the allegedinfringements of which it is accused in Article 4 of the contested decision had theeffect of imposing a second fine on it for conduct which had already received a finein respect of the infringement found in Article 1. 5063. It should however be observed that only one fine is imposed on the applicants sofar as concerns the grey cement market. According to Article 9 of the contested decision, that fine is imposed on them in respect of their participation in theCembureau agreement. The arguments alleging that the principle non bis idem wasinfringed must therefore be rejected. 5064. Aalborg claims that, under Article 9 of the contested decision, a specific fine wasimposed on Cembureau. Since its responsibility for the infringements is not linkedto its capacity as a direct member of Cembureau, it considers itself to have beenpunished twice for the same conduct. Blue Circle states that it will bear over halfof the fine imposed on the BCA. Since the Commission also considers itresponsible for the infringement referred to in Article 1, it is being fined twice forthe same infringement. 5065. However, there is no longer any point in examining those arguments because thefines imposed on the associations of undertakings to which the contested decisionwas addressed have been annulled (see paragraphs 478 to 488 above). 5066. Blue Circle adds that, under Article 9 of the contested decision, it has been finedin respect of the infringement found in Article 1, which was implemented, inparticular, by the conduct set out in Article 2. However, according to that article,BCA alone was involved in that conduct so far as concerns the United Kingdommarket. Blue Circle was thus fined for conduct for which it was not heldresponsible. 5067. However, as observed in paragraph 4746 above, Blue Circle was fined in respectonly of unlawful conduct with which it is itself charged. Its argument musttherefore be rejected. 5068. Thirdly, CBR, Ciments Français, Lafarge, Asland, Uniland, Cimpor, SECIL andHornos Ibéricos claim that the Commission infringed the principle of equaltreatment when determining the fines. 5069. First of all, CBR and Ciments Français state that the Commission infringed theprinciple of non-discrimination by imposing a fine for participating in theCembureau agreement only on those undertakings which were both represented bytheir association within Cembureau and had clearly manifested their accession tothat agreement by participating in other actions objected to in the contesteddecision (recital 65, paragraph 8), whereas elsewhere it states that the Cembureauagreement rendered liable all Cembureau's members and the whole of theEuropean cement industry represented in it throughout the period of theinfringement found (recital 45, paragraphs 5 and 8, and recital 65, paragraph 3). Ciments Français adds that, by doing so, the Commission made the fine out of allproportion to the infringement. 5070. In addition to what has been stated in paragraphs 4425 to 4427, the Court pointsout that where the conduct of an undertaking infringes Article 85(1) of the Treaty it cannot escape the fine imposed on it on the ground that no fine was imposed onother economic operators when, as in the present case, those other undertakings'circumstances are not even the subject of proceedings before the Communityjudicature (see Woodpulp II, cited in paragraph 106 above, paragraph 197, DunlopSlazenger v Commission, cited in paragraph 270 above, paragraph 176, and VanMegen Sports v Commission, cited in paragraph 4892 above, paragraph 56). 5071. As regards Ciments Français, it should be added that, by not fining the indirectmembers of Cembureau in respect of which it had no evidence of theirparticipation in measures implementing the Cembureau agreement, theCommission has not infringed the principle of proportionality to the detriment ofthose who, like Ciments Français, did in fact participate in such measures. 5072. Secondly, Lafarge claims that there is no rational, consistent or objectiveexplanation for the variations in the treatment meted out to the undertakings onwhich fines were imposed, despite the information provided in recital 65 of thecontested decision as to the criteria taken into account by the Commission whencalculating the fines. There are flagrant discrepancies in that the total turnover ofcertain undertakings was not taken into account, or that the Commission, contraryto Mr Van Miert's statements at the press conference of 30 November 1994,applied more than two rates of fines. 5073. In that regard, it has been held (see paragraphs 4725 to 4739) that the reasons setforth in recital 65 of the contested decision contain an adequate statement of thecriteria taken into account by the Commission for the purpose of determining thefines laid down in Articles 9 and 10. 5074. Moreover, it is apparent from the information provided by the Commission (seeparagraph 4738 above) that, so far as concerns the infringement relating to the greycement market, the Commission applied two basic rates in order to calculate thefines. Those undertakings which, for the reasons set out in recital 65, paragraph9(a), bear greater responsibility for that infringement, were fined at a basic rate of4%. Those whose responsibility for that infringement is less serious, on thegrounds set out in recital 65, paragraph 9(b), had a fine imposed on them at a rateof 2.8%. In respect of the infringement relating to the white cement market, theCommission adopted a basic rate of 4% for all the undertakings involved. Thoserates were applied, so far as concerns the infringement committed on the grey-cement market, to the turnover from the sales of each undertaking concerned onthe Community market for grey cement and for clinker for grey cement in 1992and, so far as concerns the infringement committed on the white cement market,to the turnover from the sales of each undertaking concerned on the Communitymarket for white cement and for clinker for white cement in the same year. Theamount of the fine on each undertaking was adjusted in accordance with theduration of its participation in the infringement in question. 5075. Since Lafarge puts forward no concrete evidence to show that it was the subject ofunjustified discrimination in the application of those calculation criteria, itsargument must be rejected. 5076. Thirdly, Asland claims that, so far as concerns the gravity of the infringement, theSpanish undertakings were treated less favourably than the other undertakingsmentioned in the contested decision inasmuch as the border between Spain andPortugal is the only area in which the infringement committed by the Spanishundertakings could have been committed, whereas the unlawful conduct of theGerman, French and United Kingdom undertakings produced effects on a morevaried range of border regions, namely those straddling the borders between theirrespective Member States. 5077. In that connection, the Court has pointed out (paragraph 4864 above) that thequestion whether the Cembureau agreement did or did not have anti-competitiveeffects on the Community's markets was not taken into account in the assessmentof the gravity of that infringement. It is only when examining the responsibility ofthe undertakings involved in that infringement that the Commission assessed theeffects normally associated with measures such as those through which thosevarious undertakings implemented the Cembureau agreement. In that context,Asland was properly classed among the undertakings bearing greater responsibilityfor the infringement. The measure implementing the Cembureau agreement inwhich it participated, namely the agreement on the setting-up of the ETF(Article 4(1)), is one of the measures which had direct effects tending to partitionthe home markets. Asland's arguments must therefore be rejected. 5078. Asland claims that it did not receive the reduction in the percentage of its finewhich was accorded to the other Spanish and Portuguese undertakings on the basisthat they participated in the infringement over a shorter period. 5079. However, it is clear from the information sent by the Commission (see paragraph4738 above) that the fine imposed on Asland was calculated, as were thoseimposed on the other Spanish and Portuguese addressees of the contested decision,by taking into account an infringement period of 86.5 months. In any case, it willbe taken into account (see paragraph 5115 below) that Asland's participation in theCembureau agreement is established only from 28 May 1986 to 31 May 1987, thatis to say for a period of 12 months (see the 10th indent of paragraph 4814 above). 5080. Fourthly, Ciments Français observes that, according to the contested decision,Hornos Ibéricos attended five ETF meetings. However, the Commission identifiedthat undertaking as among those bearing less responsibility in the Cembureauagreement on the ground that its participation in that infringement was restrictedto involvement in measures to channel production surpluses towards non-membercountry markets, which had a less direct effect on the protection of home markets. Uniland states that the Commission infringed the principle of non-discrimination in fining it and deeming its participation in the Cembureau agreement to beserious, whereas other undertakings which, according to the contested decisionitself, participated continuously and actively in the infringements relating to theETF and Interciment were not fined in that connection (Hornos Ibéricos andCementos del Norte) or were excluded from the proceeding. Asland alsocomplains of the treatment of Hornos Ibéricos and Cementos del Norte. 5081. It must be pointed out that it is not for the Court, in the exercise of its review oflegality, to substitute its own appraisal for that of the Commission as to thesituation of an undertaking in relation to an infringement which it has not beenfound to have committed in the contested act. 5082. In the present case, Ciments Français, Asland and Uniland were properly classedin recital 65, paragraph 9(a), of the contested decision among the undertakingsbearing greater responsibility for the infringement in respect of which a fine wasimposed in Article 9. Those three applicants participated in the Cembureauagreement by means of implementing measures designed directly to protect homemarkets. Thus, Ciments Français was in particular involved in the Franco-Germanagreements and practices referred to in Article 3(3)(a), in the agreement settingup the ETF (Article 4(1)) and in the agreement establishing Interciment(Article 4(2)) (see paragraph 4319 above). Asland participated in the agreementsetting up the ETF (see paragraph 4351 above). Uniland was party to that last-mentioned agreement, to the agreement establishing Interciment and to theconcerted practices to defend the Italian market referred to in Article 4(3)(a) (seeparagraph 4356 above). 5083. In those circumstances, they cannot properly compare their situation with that ofthe undertakings to which they refer in their respective arguments in order to claimthe cancellation or reduction of the fine imposed on them in Article 9 (see, to thateffect, Woodpulp II, cited in paragraph 106 above, paragraph 197, Dunlop Slazengerv Commission, cited in paragraph 270 above, paragraph 176, and Van Megen Sportsv Commission, cited in paragraph 4892 above, paragraph 56). 5084. Fifthly, Cimpor and SECIL observe that, according to the documents mentionedin recital 21 of the contested decision, various Spanish producers took part in themeetings examined at that point in the contested decision. They cite PortlandMallorca, Cementos del Mar, Cementos del Atlantico, Portland Valderrivas,Cementos Portland Hispania, Asland, Hisalba, Hispacement, Cementos Cosmos,Tudela Veguin and Cementos Alba. However, most of those undertakings werenot addressees of the contested decision. Those which were, were not charged withthe infringement referred to in Article 3(2). Moreover, Oficemen, which, inaddition to the infringements found against it in Articles 1, 2, 4 and 5 of thecontested decision, assumed sole responsibility for the Hispano-Portugueseagreement on the Spanish side, was fined only ECU 70 000, whereas fines ofECU 9 324 000 and ECU 3 017 000 were imposed on Cimpor and SECIL respectively. They claim that this is a blatant infringement of the principle of equaltreatment. 5085. In that connection, the Court points out, in addition to the principle set out inparagraph 5081 above, that Cimpor and SECIL were rightly included in thecategory of undertakings bearing greater responsibility for the infringement finedin Article 9 of the contested decision. The Hispano-Portuguese agreement foundin Article 3(2), whereby the two applicants implemented the Cembureauagreement, was designed directly to protect home markets. In those circumstances,they cannot properly compare their situation with that of the undertakings to whichthey refer in their arguments in order to claim the cancellation or reduction of thefine imposed on them in Article 9 (see, to that effect, Woodpulp II, cited inparagraph 106 above, paragraph 197, Dunlop Slazenger v Commission, cited inparagraph 270 above, paragraph 176, and Van Megen Sports v Commission, citedin paragraph 4892 above, paragraph 56). 5086. As to the discrimination which they allege to have suffered in comparison withOficemen, it should be borne in mind that, although Oficemen's responsibility inthe infringement found in Article 3(2) is indeed established, its situation isobjectively different from that of Cimpor or SECIL. As the Commission rightlypoints out in recital 44, paragraph 5, of the contested decision, the cementproducers are the real actors. They act through their trade associations. In thosecircumstances, the Commission was justified in punishing the conduct of theundertakings with large fines, calculated in accordance with their turnover, whereaswhen it imposed a small overall fine on the trade associations, its intention was todissuade them from taking the initiative in or facilitating such restrictive agreementsand practices in the future (recital 65, paragraph 8, first indent). 5087. Cimpor and SECIL also submit that the Commission imposed on Oficemen and onthe five Spanish undertakings to which the contested decision was addressed finestotalling ECU 10 576 000, that is to say a lower amount than the sum of the finesimposed on the two Portuguese undertakings (ECU 12 341 000). 5088. None the less, a mere comparison of the cumulative amounts of the fines imposedon the Spanish and Portuguese addressees of the contested decision cannot leadto a finding that the principle of equal treatment was infringed, having regard tothe range of objective parameters which may explain the differences. 5089. It follows from the foregoing that the pleas examined must be dismissed. XIII  Plea alleging infringement of rights of the defence owing to incompleteaccess to the Commission file during the administrative procedure 5090. In the observations which they submitted following the measures of 2 October 1996and 18 and 19 June 1997 ( see paragraphs 164 and 168 above) a number ofapplicants maintain that, by granting them only limited access to the file during theadministrative procedure, the Commission infringed their rights of defence whendetermining the fines, inasmuch as they were deprived of access to exculpatoryevidence. 5091. In the first place, Lafarge refers, in its observations of 28 January 1998, to twodocuments which allegedly show that the Commission had been notified at thematerial time of certain collective action which the Western European cementproducers planned to take against imports from Greece. 5092. It relies first of all on document 33.126/19009, a Blue Circle note of the meetingof 6 November 1986 between Mr Sutherland, member of the Commission, andrepresentatives of the European cement industry. According to that document,they informed the member of the Commission of their difficulties in exporting toGreece as a form of reprisal against that country's producers. 5093. However, as stated in paragraph 3114, that document does not prove that therepresentatives of the European cement industry had informed Mr Sutherland ofthe measures which they had in any event already adopted at the time with a viewto eliminating cheap cement imports into Western Europe, primarily those fromGreece, namely the setting-up of the ETF, the setting-up of Interciment and theconcerted practices designed to cause Calcestruzzi to cease being a customer of theGreek producers, and of Titan in particular. Any comments that Lafarge mighthave made on the basis of that document during the administrative procedurewould not therefore have altered the Commission's conclusions in recital 65,paragraph 5, fifth indent, of the contested decision as to the desire of the partiesto shroud their unlawful conduct in secrecy. 5094. Next, Lafarge puts forward an extract from a letter sent on 6 November 1986 byMr Van Hove (CBR) to Mr Akermann (Holderbank) (document 33.126/7639) toshow that the Commission had been aware at the time of the setting-up ofInterciment: 'The Competition Directorate-General of the EEC believes that that founding ofthis company should be notified, if several EEC cement companies are toparticipate as shareholders or members of a board of directors. 5095. However, any comments that Lafarge might have made on the basis of that extractduring the administrative procedure could not have refuted the specific complaintlevelled by the Commission against the parties involved in the agreement on thesetting-up of Interciment, namely that it had never been notified to it despite thefact that various legal opinions had recommended such notification in view of the manifestly unlawful object of that measure (contested decision, recital 26,paragraph 13, and recital 65, paragraph 5, fifth indent). 5096. In conclusion, Lafarge's comments examined in paragraphs 5091 to 5095 abovewould not have had even a small chance of altering the outcome of theadministrative procedure. 5097. Secondly, Aalborg submits, in its observations of 12 January 1998, that accordingto documents 33.126/3833 to 3844, 18130 to 18138 and 171 to 174 the Commissiondid not originally intend to investigate an overall European agreement or concertedpractice, but regional agreements or concerted practices and suspected cooperationbetween several large European cement producers  the 'Group of 8  with whichAalborg had no connection whatsoever. Aalborg states that the documents wouldhave enabled it to show that the Commission investigated the supposed existenceof the Cembureau agreement only later and, therefore, that the conduct allegedagainst it in the context of that agreement was the subject of a time-bar. 5098. However, documents 33.126/171 to 174, cited by Aalborg, contain the decision ofthe Commission of 20 April 1989 relating to the investigations which gave rise tothe present case. It is clear from them that those investigations were justified bythe following considerations: '... the Commission received information that agreements and/or concertedpractices have been agreed upon by the major European cement producers duringmeetings held in various European cities. ... according to the information received by the Commission, those agreementsand/or concerted practices had [in particular] as their object: (1) the agreed reduction of production capacity in the common market with theaim of protecting the market share of each producer; ... (iii) the allocation of quotas and the geographical distribution of the markets aswell as control of their implementation through checks on the destination ofproducts; ... (v) the systematic exchange of information, intended to ensure that the agreementsor concerted practices are implemented and to allow the setting-off of quotasallocated to each producer from one year against the next. 5099. It is apparent from those extracts that the Commission's investigations following itsdecision of April 1989 were aimed from the outset at the Cembureau agreementand the implementing measures. Aalborg's argument is therefore unfounded. 5100. Thirdly, Italcementi maintains in its observations of 26 November 1997 that severaldocuments show its marginal role in the infringements committed. It is thusevident from documents 33.126/4869 to 4871 and 3944 to 3948, as well as fromdocument 33.322/1478, that the Italian cement industry has different features fromthose of the other European cement industries (natural barriers and price levelcreating an obstacle to exportation from Italy; absence of vertical integrationleaving the Italian market vulnerable to imports) and, therefore, that Italcementiwas not involved at all in the discussions which took place on questions concerninginternational trade in cement. 5101. Certain documents also reveal that the other cement producers saw Italcementicertainly as a large, but relatively inactive, operator at international level(documents 33.126/8895, 8774, 8791, 8792 and 8894) and that when it participatedin meetings of European cement producers Italcementi dealt with the problemsexclusively from the angle of its home market (documents 33.126/2545 to 2548 and4923 to 4926). 5102. Finally, documents 33.126/19868 to 19870 and 19884 allegedly confirm the marginaland lawful nature of Italcementi's activity within the ETF. They were restricted toparticipation in the lobbying activities by that working group in order to resolve theproblems linked to imports from Greece. They never took the form of dissuasiveor even aggressive actions for which the United Kingdom cement producers mightsometimes have been responsible. 5103. In conclusion, Italcementi states that if it had had the entire investigation fileavailable during the administrative procedure it would have been able to persuadethe Commission of the need to make, when determining the fines, an assessmentof the individual responsibility of each producer for the conduct complained of,rather than an overall assessment of responsibilities. 5104. None the less, such comments could not have prevailed over the factual evidenceof Italcementi's presence, in its capacity as a direct member of Cembureau, at theHead Delegates meetings of 19 March and 7 November 1984 during which theCembureau agreement was confirmed, as well as its leading role in the setting-upof the ETF and Interciment and in the measures adopted to defend the Italianmarket against cement imports from Greece. They were not therefore such as tolead the Commission to assess Italcementi's responsibility for the infringementrelating to the market in grey cement differently than in recital 65, paragraph 9(a),of the contested decision, namely that Italcementi should be classed among thoseundertakings bearing grave responsibility for that infringement. 5105. Nor would those comments have been of such a nature as to prevail over theevidence contained in the bundle of documents referred to in recitals 38 to 40 ofthe contested decision, from which it is evident that Italcementi participatedconstantly and assiduously, throughout the period in question, in meetings and inthe unlawful activities of the WCC. They could not therefore have overturned thefinding that Italcementi played an important role in the infringement committed onthe white cement market. 5106. It is apparent from the foregoing that Italcementi's comments examined inparagraphs 5100 to 5105 above would not have had even a small chance of alteringthe outcome of the administrative procedure. 5107. Fourthly, in its observations of 8 December 1997 Holderbank puts forward a faxfrom Blue Circle of 20 October 1987 (document 33.126/10959) worded as follows: 'A sum of money had been advanced to Holderbank with the intention that thisshould be a contribution towards share capital, but subsequently a decision wasmade and communicated to Holderbank that the Group did not wish to participatein the company's share capital. This latter decision was not communicated,however, to those responsible for maintaining the books of BCO AG and hence anerror was made in recording the nature of this cash outflow. This error will becorrected in 1987. 5108. Holderbank claims that, if it had had that document available during theadministrative procedure, it would have been able to refute the Commission'scharge that Blue Circle wanted to conceal its participation in Interciment bymisrepresenting the purpose of its advance to Holderbank. It considers that itwould have been able to rebut the Commission's argument that the undertakingssought to dissimulate their unlawful behaviour. 5109. In that connection, it suffices to observe that the document put forward byHolderbank was classified as 'A: European producers for the purposes of theconsultation of the file during the administrative procedure (see paragraph 250above) and that it was even in the Box (see paragraph 95 above). In thosecircumstances, Holderbank cannot now rely upon it in order to show that its rightsof defence were infringed during the administrative procedure. 5110. Fifthly, Cementir bases itself, in its observations of 29 October 1997, on thedocuments referred to in paragraph 3391 above to illustrate the strong penetrationof Greek exports into the Italian market during the period covered by the contesteddecision, particularly from 1987 onwards. Those documents allegedly show at thevery least that the Cembureau agreement had no effect in Italy, which theCommission should have taken into account, if only when fixing the fines. 5111. None the less, had it been possible for Cementir to have made such commentsduring the administrative procedure they could not have prevailed over theconsiderations set forth correctly by the Commission in recital 65, paragraph 9(a),of the contested decision, according to which Cementir bore grave responsibility forthe infringement relating to the grey cement market in view of the fact that, as adirect member of Cembureau, it participated directly in the conclusion of theCembureau agreement and took part in measures implementing that agreementwhich were designed directly to protect home markets. 5112. It follows that Cementir's comments set out in paragraph 5110 above would nothave had even a small chance of altering the outcome of the administrativeprocedure. 5113. In conclusion, the plea must be dismissed. XIV  Conclusions 5114. Article 9 of the contested decision must be annulled as against ENCI, Cedest,Alsen-Breitenburg, Nordcement, Buzzi, Rugby, Castle, Heracles and Titan (seeparagraphs 4718 and 4719 above). 5115. In the light of the examination carried out by the Court in paragraphs 4714 to 5113above and the figures provided by the Commission during the proceedings, thefines in Articles 9 and 10 of the contested decision, expressed in euros pursuant toArticle 2(1) of Council Regulation (EC) No 1103/97 of 17 June 1997 on certainprovisions relating to the introduction of the euro (OJ 1997 L 162, p. 1), must bereduced as follows:  the fine imposed on CBR in Article 9 is reduced to EUR 1 711 000;  the fine imposed on Ciments Luxembourgeois in Article 9 is reduced toEUR 617 000;  the fine imposed on Dyckerhoff in Article 9 is reduced to EUR 7 055 000;  the fine imposed on Vicat in Article 9 is reduced to EUR 2 407 000;  the fines imposed on Ciments Français in Articles 9 and 10 are reduced toEUR 12 519 000 and to EUR 1 051 000 respectively;  the fine imposed on Heidelberger in Article 9 is reduced to EUR 7 056 000;  the fine imposed on Lafarge in Article 9 is reduced to EUR 14 248 000;  the fine imposed on Aalborg in Article 9 is reduced to EUR 2 349 000;  the fine imposed on Unicem in Article 9 is reduced to EUR 6 399 000;  the fines imposed on Valenciana in Articles 9 and 10 are reduced to EUR250 000 and to EUR 388 000 respectively;  the fine imposed on Asland in Article 9 is reduced to EUR 740 000;  the fine imposed on Uniland in Article 9 is reduced to EUR 592 000;  the fine imposed on Irish Cement in Article 9 is reduced to EUR 2 065 000;  the fine imposed on Cimpor in Article 9 is reduced to EUR 4 312 000;  the fine imposed on SECIL in Article 9 is reduced to EUR 1 395 000;  the fine imposed on Italcementi in Article 9 is reduced to EUR 25 701 000;  the fine imposed on Holderbank in Article 9 is reduced to EUR 1 918 000;  the fine imposed on Hornos Ibéricos in Article 9 is reduced toEUR 836 000;  the fine imposed on Aker in Article 9 is reduced to EUR 14 000;  the fine imposed on EUROC in Article 9 is reduced to EUR 14 000;  the fine imposed on Cementir in Article 9 is reduced to EUR 7 471 000;  the fine imposed on Blue Circle in Article 9 is reduced to EUR 7 717 000;  the fine imposed on Halkis in Article 9 is reduced to EUR 510 000. The claims for reimbursement of the fine, together with interest, and forreimbursement of the expenses incurred in providing a bank guarantee 5116. In Cases T-31/95 and T-32/95, the applicants request that the Commission beordered to pay them interest on the fine wrongly paid. 5117. In Cases T-50/95 and T-51/95, the applicants request that the Commission beordered to reimburse the expenses incurred by them in providing a bank guarantee,at least in respect of the amount by which the fine is reduced. 5118. Suffice it to state that those claims in actual fact concern compliance with thepresent judgment and that it is for the Commission to take the necessary steps tocomply with it, in accordance with Article 176 of the EC Treaty (now Article 233EC) (see Case T-151/94 British Steel v Commission [1999] ECR II-0000, paragraph697). The claims are therefore inadmissible.                                                                     Costs 5119. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. 5120. Under the first subparagraph of Article 87(3) of the Rules of Procedure, the Courtmay, where each party succeeds on some and fails on other heads, order costs tobe shared or order each party to bear its own costs. 5121. Under the second subparagraph of Article 87(3), the Court may also order a party,even if successful, to pay the costs which it considers that party to haveunreasonably or vexatiously caused the opposite party to incur. A successful partymay thus be ordered to pay costs which have arisen as a result of the conduct ofthat party (Case T-7/96 Perillo v Commission [1997] ECR II-1061, paragraph 47). 5122. In the present case, the second subparagraph of Article 87(3) is to be applied,having regard to the conduct of the Commission which, by not granting properaccess to the investigation file during the administrative procedure (see paragraph152 above), did not satisfy the requirements of sound administration. It cannot beheld against an applicant that it instituted proceedings before the Court for reviewof such conduct, if necessary, after adoption of the requisite measures oforganisation of procedure. 5123. In the light of the above principles, costs are to be determined in the various casesbefore the Court by reference to five separate categories. 5124. First, since the Commission has been unsuccessful in its submissions in CasesT-31/95, T-38/95, T-45/95, T-46/95, T-53/95, T-56/95, T-57/95 and T-64/95, it mustbe ordered to pay the costs relating to those cases, as sought by the applicantsconcerned. 5125. Secondly, although the applicant in Case T-51/95 has failed on some of its claims,it has succeeded on most of them. The Court has held in particular that Articles1 and 9 of the contested decision must be annulled in so far as they concern it.Moreover, the applicant complained about the irregular access to the Commission'sfile granted to it during the administrative procedure. 5126. Accordingly, the Court will make an equitable assessment of the circumstances ofthe case in holding that in Case T-51/95 the applicant is to bear one third of itscosts and the Commission is to pay two thirds of the applicant's costs and to bearits own costs. 5127. Thirdly, in Cases T-26/95, T-30/95, T-32/95, T-36/95, T-48/95, T-54/95, T-59/95,T-63/95 and T-103/95, the applicants in question have failed on some of theirclaims but have succeeded on a significant number of them. The Court has held inparticular that Article 9 of the contested decision, imposing a fine on them, mustbe annulled in so far as it concerns them. Moreover, the applicants in CasesT-26/95, T-30/95, T-32/95, T-36/95, T-48/95, T-59/95, T-63/95 and T-103/95complained about the irregular access to the Commission's file granted to themduring the administrative procedure. 5128. In those circumstances, it must be held that in Cases T-26/95, T-30/95, T-32/95,T-36/95, T-48/95, T-59/95, T-63/95 and T-103/95 the applicants and the Commissionare each to bear their own costs. On the other hand, since the applicant in CaseT-54/95 did not complain about the irregular access to the Commission's filegranted to it during the administrative procedure, the Commission is to be orderedto bear three quarters of its own costs and the applicant to pay one quarter of theCommission's costs and to bear its own costs. 5129. Fourthly, the applicant in Case T-55/95 has failed on some of its claims, but hassucceeded on a significant number of them. The Court has held in particular thatArticle 1 of the contested decision must be annulled in so far as it finds that itparticipated in the infringement complained of before 28 May 1986 and after 31May 1987. Moreover, the applicant complained about the irregular access to theCommission's file granted to it during the administrative procedure. 5130. Accordingly, the Court will make an equitable assessment of the facts of that casein holding that in Case T-55/95 the Commission is to bear three quarters of its costsand that the applicant is to pay one quarter of the Commission's costs and to bearits own costs. 5131. Fifthly, in Cases T-25/95, T-34/95, T-35/95, T-37/95, T-39/95, T-42/95, T-43/95,T-44/95, T-50/95, T-52/95, T-58/95, T-60/95, T-61/95, T-62/95, T-65/95, T-68/95,T-69/95, T-70/95, T-71/95, T-87/95, T-88/95 and T-104/95, the applicants in questionhave failed on a significant number of their claims, even though they havesucceeded on some of them. In Cases T-25/95, T-35/95, T-39/95, T-43/95, T-52/95and T-65/95, the applicants have failed in particular on their claims concerningArticle 7 of the contested decision relating to the white cement market. None theless, in Cases T-25/95, T-34/95, T-35/95, T-37/95, T-39/95, T-42/95, T-43/95, T-44/95,T-50/95, T-52/95, T-58/95, T-60/95, T-61/95, T-62/95, T-65/95, T-68/95, T-69/95,T-70/95, T-71/95, T-87/95 and T-88/95, the applicants complained about the irregular access to the Commission's file granted to them during the administrativeprocedure. 5132. Accordingly, in those cases the Commission is to bear two thirds of its costs and theapplicants are to pay one third of the Commission's costs and to bear their owncosts. On the other hand, since the applicant in Case T-104/95 did not complainabout the irregular access to the Commission's file granted to it during theadministrative procedure, the Commission is to bear one half of its own costs andthe applicant is to pay one half of the Commission's costs and to bear its own costs. 5133. Irrespective of the abovementioned categories, the claims by the applicants inCases T-55/95, T-58/95 and T-59/95 for an order that the Commission pay the costs,including the costs of providing and maintaining the bank guarantee, must bedismissed. It is settled law that expenses incurred in providing a bank guarantee inorder to avoid the enforcement of a decision are not expenses incurred for thepurpose of the proceedings within the meaning of Article 91(b) of the Rules ofProcedure (see the order of 20 November 1987 in Case 183/83 Krupp v Commission[1987] ECR 4611, paragraph 10, and the judgment in Weig v Commission, cited inparagraph 4626 above, paragraph 308). 5134. Likewise, the applicant's claim in Case T-51/95 that the Commission should beordered to reimburse the expenses incurred by it during the administrativeprocedure must be dismissed. According to Article 91 of the Rules of Procedure,'the following shall be regarded as recoverable costs ... expenses necessarilyincurred by the parties for the purpose of the proceedings. By 'proceedings thatprovision refers only to proceedings before the Court of First Instance and does notinclude any prior stage. That follows in particular from Article 90 of the Rules ofProcedure, which refers to 'proceedings before the Court of First Instance (see,by analogy, the orders of the Court of Justice in Case 75/69 Hake v Commission[1970] ECR 901 and Case C-294/90 DEP British Aerospace v Commission [1994]ECR I-5423, paragraphs 10 to 12). In any event, if that claim were to be regardedas a claim for damages, it would have to be declared inadmissible inasmuch as itdoes not fulfil the requirements of Article 19 of the EC Statute of the Court ofJustice or of Article 44(1)(c) of the Rules of Procedure (Case T-13/96 TEAM vCommission [1998] ECR II-4073, paragraph 27).