Judgment — ECLI:EU:C:2000:626
Date: 2000-11-16
Language of the case: French
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Determining the amount of the fine;Definition of undertaking
Procedure: Action for annulment;Appeal - unfounded;Appeal - successful
Origin: France

summary publication, and T-151/89 Société des Treillis et Panneaux Soudés v Commission [1995] ECR II-1191, summary publication), that this Court stressed for the first time that it is desirable for undertakings to be able to ascertain in detail the method used for calculating the fine imposed without having to bring court proceedings against the Commission's decision in order to do so. 222 It follows that, when it finds in a decision that there has been an infringement of the competition rules and imposes fines on the undertakings participating in it, the Commission must, if it systematically took into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision in order to enable the addressees of the decision to verify that thelevel of the fine is correct and to assess whether there has been any discrimination. 223 In the specific circumstances set out in paragraph 221 above, and having regard to the fact that in the procedure before the Court the Commission showed itself to be willing to supply any relevant information relating to the method of calculating the fines, the absence of specific grounds in the Decision regarding the method of calculation of the fines should not, in the present case, be regarded as constituting an infringement of the duty to state reasons such as would justify annulment in whole or in part of the fines imposed. 224 Consequently, this plea cannot be upheld. 18. In those circumstances the Court of First Instance dismissed the application. The appeal 19. In support of its appeal the appellant puts forward three pleas in law. 20. First, the appellant claims that the contested judgment is vitiated by inconsistency in that the Court of First Instance did not give full effect to its own findings that the statement of reasons for the Decision was inadequate in regard to the determination of the general level of the fines. 21. Second, it alleges that the Court of First Instance misinterpreted the concept of 'effects of the infringement on the market and in any event infringed the principle of proportionality in not reducing the level of the fine imposed by the Commission when it had found that the Commission had not proved all the effects taken into account in determining the general level of the fines. 22. Third, the appellant asserts that the Court of First Instance infringed the principle of non-discrimination by upholding the criteria adopted by the Commission, themselves discriminatory, regarding the attributability of the conduct of undertakings transferred during the course of the infringement. The first plea 23. In its first plea the appellant complains that the Court of First Instance erred in law in that it did not annul the Decision despite having found in paragraphs 214, 219 and 220 of the contested judgment that the statement of reasons was inadequate in view of the requirements laid down by Article 190 of the EC Treaty (now Article 253 EC), because the Commission had failed to set out in the Decision the factors which it had systematically taken into account in order to set the amount of the fines. 24. The appellant adds that such information should, in accordance with the settled case-law referred to by the Court of First Instance in paragraph 220 of the contested judgment, have been set out in the actual body of the Decision and that, save in exceptional circumstances, explanations given by the Commission to the press or during the proceedings before the Court of First Instance cannot be taken into account. Indeed, the Court of First Instance had specifically found in paragraph 220 of the contested judgment that the Commission had accepted at the hearing that nothing had prevented it from indicating those matters in the Decision. In those circumstances, the Court of First Instance could not take account of the fact that the 'Commission [had] showed itself to be willing to supply any relevant information relating to the method of calculating the fines (paragraph 223 of the contested judgment). 25. Furthermore, according to the appellant, ex post facto reasoning does not enable the undertakings or the Community judicature to verify whether the criteria indicated by the Commission during the proceedings before the Court of First Instance in fact corresponded to the factors taken into account when initially calculating the fine. There is no guarantee that those factors were taken into account when the Decision was adopted by the College of Commissioners, which remains the only body with power to take and give reasons for a Decision. 26. The appellant also complains that the Court of First Instance limited the temporal scope of the interpretation, in regard to the fixing of fines, which it gave as to the requirements of Article 190 of the EC Treaty in its judgments in Tréfilunion v Commission, Société Métallurgique de Normandie v Commission and Société des Treillis et Panneaux Soudés v Commission, cited above (hereinafter 'the Welded Steel Mesh judgments), referred to in paragraph 221 of the contested judgment, despite the fact that the Court of Justice has always held that the interpretation which it gives to a rule of Community law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force, save where it is provided to the contrary in the judgment giving that interpretation. 27. The Commission observes that the Court of First Instance held in paragraph 215 of the contested judgment that points 169 to 172 of the Decision contained 'a relevant and sufficient statement of the criteria taken into account in order to determine the gravity and the duration of the infringement committed by each of the undertakings in question. There is no contradiction, as the appellant alleges, in the fact that the Court of First Instance set out, in addition to that finding, comments as to the appropriateness of the Commission's including other information in its decisions, over and above the duty to state reasons, strictly construed. 28. Paragraphs 219 to 222 of the contested judgment are, according to the Commission, superfluous in that they refer to the consequences of the Welded Steel Mesh judgments. In those judgments the Court of First Instance expressed, as it did in the contested judgment, the wish that there should be greater transparency as to the method ofcalculation adopted. In so doing, the Court of First Instance did not treat the lack of transparency as amounting to a failure to state adequate reasons for the Decision. At most, the position adopted by the Court of First Instance reflects the principle of good administrative practice, in the sense that addressees of decisions should not be forced to bring proceedings before the Court of First Instance in order to ascertain all the details of the method of calculation used by the Commission. However, such considerations of opportuneness could not in themselves constitute a ground of annulment. 29. Last, the Commission states that the implications to that effect of the Welded Steel Mesh judgments have recently been confirmed by the Court of First Instance. According to that Court, the information which it is desirable that the Commission should communicate to the addressee of a decision must not be regarded as an additional statement of reasons, but solely as the translation into figures of the criteria set out in the Decision in so far as they are themselves capable of being quantified (see judgments in the 'Steel Beams cases, Case T-134/94 NMH Stahlwerke v Commission [1999] ECR II-239, Case T-136/94 Eurofer v Commission [1999] ECR II-263; Case T-137/94 Arbed v Commission [1999] ECR II-303, Case T-138/94 Cockerill-Sambre v Commission [1999] ECR II-333, Case T-141/94 Thyssen Stahl v Commission [1999] ECR II-347; Case T-147/94 Krupp Hoesch v Commission [1999] ECR II-603), Case T-148/94 Preussag v Commission [1999] ECR II-613, Case T-151/94 British Steel v Commission [1999] ECR II-629, Case T-156/94 Aristrain v Commission [1999] ECR II-645 and Case T-157/94 Ensidesa v Commission [1999] ECR II-707, and more particularly the judgment in Thyssen Stahl v Commission, cited above, paragraph 610). 30. It is necessary, first, to set out the various stages in the reasoning adopted by the Court of First Instance in response to the plea alleging infringement of the duty to state reasons in regard to the calculation of the fines. 31. The Court of First Instance first of all referred, in paragraph 208 of the contested judgment, to the settled case-law to the effect that the purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged, the scope of that obligation being dependent on the nature of the act in question and on the context in which it was adopted (see, in particular, besides the case-law cited by the Court of First Instance, Case C-22/94 Irish Farmers Association and Others v Ministry for Agriculture, Food and Forestry, Ireland, and the Attorney General [1997] ECR I-1809, paragraph 39). 32. The Court of First Instance then explained in paragraph 209 of the contested judgment that as regards a decision which, as in this case, imposes fines on several undertakings for infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of the infringements depends on numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines;moreover, no binding or exhaustive list of criteria to be applied has been drawn up (order in SPO and Others v Commission, cited above, paragraph 54). 33. In that regard, the Court of First Instance held in paragraph 215 of the contested judgment that: 'points 169 to 172 of the Decision, interpreted in the light of the detailed statement in the Decision of the allegations of fact against each of its addressees, contain a relevant and sufficient statement of the criteria taken into account in order to determine the gravity and duration of the infringement committed by each of the undertakings in question. 34. It added, in paragraph 218 of the contested judgment, that 'the Decision therefore clearly contains an adequate statement of the reasons for the Commission's view that the applicant was a ringleader. 35. However, in paragraphs 219 to 223 of the contested judgment the Court of First Instance qualified, somewhat ambiguously, that statement in paragraph 215 and 218. 36. According to paragraphs 219 and 220 of the contested judgment, the Decision does not indicate the precise figures systematically taken into account by the Commission in fixing the amount of the fines, albeit it could have disclosed them and this would have enabled the undertakings better to assess whether the Commission had erred when fixing the amount of each individual fine and whether that amount was justified by reference to the general criteria applied. The Court added, in paragraph 221, that according to the Welded Steel Mesh judgments it is desirable for undertakings to be able to ascertain in detail the method used for calculating the fine imposed without having to bring court proceedings against the Commission's decision in order to do so. 37. It concluded, in paragraph 223 of the contested judgment, that there had been an 'absence of specific grounds in the Decision regarding the method of calculation of the fines, which was justified in the specific circumstances of the case, namely the disclosure of the method of calculating the fines during the proceedings before the Court of First Instance and the novelty of the interpretation of Article 190 of the Treaty given in the Welded Steel Mesh judgments. 38. Before examining, in the light of the arguments submitted by the appellant, the correctness of the findings by the Court of First Instance regarding the consequences which disclosure of calculations during the proceedings before it and the novelty of the Welded Steel Mesh judgments may have in regard to fulfilment of the obligation to state reasons, it is necessary to determine whether fulfilment of the duty to state reasons laid down in Article 190 of the Treaty required the Commission to set out in the Decision, not only the factors which enabled it to determine the gravity and duration of the infringement, but also a more detailed explanation of the method of calculating the fines. 39. The Court of First Instance has jurisdiction in two respects over actions contesting Commission decisions imposing fines on undertakings for infringement of the competition rules. 40. First, under Article 173 of the Treaty (now, after amendment, Article 230 EC) it has the task of reviewing the legality of those decisions. In that context, it must in particular review compliance with the duty to state reasons laid down in Article 190 of the Treaty, infringement of which renders a decision liable to annulment. 41. Second, the Court of First Instance has power to assess, in the context of the unlimited jurisdiction accorded to it by Article 172 of the Treaty (now Article 229 EC) and Article 17 of Regulation No 17, the appropriateness of the amounts of fines. That assessment may justify the production and taking into account of additional information which is not as such required, by virtue of the duty to state reasons under Article 190 of the Treaty, to be set out in the decision. 42. As regards review of compliance with the duty to state reasons, the second subparagraph of Article 15(2) of Regulation No 17 provides that '[i]n fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement. 43. In those circumstances, in the light of the case-law referred to in paragraphs 208 and 209 of the contested judgment, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. If those factors are not stated, the decision is vitiated by failure to state adequate reasons. 44. The Court of First Instance correctly held in paragraph 215 of the contested judgment that the Commission had satisfied that requirement. It must be observed, as the Court of First Instance observed, that points 167 to 172 of the Decision set out the criteria used by the Commission in order to calculate the fines. First, point 167 concerns in particular the duration of the infringement. It also sets out, as does point 168, the considerations on which the Commission relied in assessing the gravity of the infringement and the general level of the fines. Point 169 contains the factors taken into account by the Commission in determining the amount to be imposed on each undertaking. Point 170 identifies the undertakings which were to be regarded as 'ringleaders of the cartel, and which should accordingly bear special responsibility in comparison with the other undertakings. Lastly, points 171 and 172 of the Decision set out the effect on the amount of the fines of the cooperation by various manufacturers with the Commission during its investigations in order to establish the facts or when they replied to the statement of objections. 45. The fact that more specific information, such as the turnover achieved by the undertakings or the rates of reduction applied by the Commission, were communicated subsequently, at a press conference or during the proceedings before the Court of First Instance, is not such as to call in question the finding in paragraph 215 of the contestedjudgment. Where the author of a contested decision provides explanations to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the Community court of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision. 46. Admittedly, the Commission cannot, by a mechanical and exclusive recourse to arithmetical formulae alone, divest itself of its own power of assessment. However, it may in its decision give reasons going beyond the requirements set out in paragraph 43 of this judgment, inter alia by indicating the figures which, especially in regard to the desired deterrent effect, influenced the exercise of its discretion when setting the fines imposed on a number of undertakings which participated, in different degrees, in the infringement. 47. It may indeed be desirable for the Commission to make use of that possibility in order to enable undertakings to acquire a detailed knowledge of the method of calculating the fine imposed on them. More generally, such a course of action may serve to render the administrative act more transparent and facilitate the exercise by the Court of First Instance of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision but also the appropriateness of the fine imposed. However, as the Commission has submitted, the availability of that possibility is not such as to alter the scope of the requirements resulting from the duty to state reasons. 48. Consequently, the Court of First Instance could not, consistently with Article 190 of the Treaty, find, as it did in paragraph 222 of the contested judgment, that 'the Commission must, if it systematically took into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision. Nor, without contradicting itself in the grounds of its judgment, could it, after finding in paragraph 215 of the contested judgment that the Decision contained 'a relevant and sufficient statement of the criteria taken into account in order to determine the gravity and duration of the infringement committed by each of the undertakings in question, then refer, as it did in paragraph 223 of the contested judgment, to 'the absence of specific grounds in the Decision regarding the method of calculation of the fines. 49. However, the error of law so committed by the Court of First Instance is not such as to cause the contested judgment to be set aside, since, having regard to the considerations, set out above, the Court of First Instance validly rejected, notwithstanding paragraphs 219 to 223 of the contested judgment, the plea of infringement of the duty to state reasons in regard to calculation of the fines. 50. As there was no obligation on the Commission, as part of its duty to state reasons, to indicate in the Decision the figures relating to the method of calculating the fines, there is no need to examine the various objections raised by the applicant which are based on that erroneous premiss. 51. The first plea must therefore be rejected. The second plea 52. In its second plea the appellant complains that the Court of First Instance wrongly interpreted the concept of 'effect of the infringement on the market which it took into account when determining the amount of the fine. It confused that concept, which is relevant in order to assess the gravity of an infringement in accordance with Article 15 of Regulation No 17, with the concept of the restrictive effect on competition of an agreement between undertakings, which is a criterion for the application of Article 85(1) of the Treaty (see paragraph 194 of the contested judgment). 53. In the present case, of the three effects of the collusion taken into consideration by the Court of First Instance (see paragraph 176 et seq. of the contested judgment: the fact that the agreed price increases were announced to customers; the fact that changes in transaction prices followed those in prices announced to customers; and the fact that the level of transaction prices would have been different from that which would have applied in the absence of collusion), only the third effect should be taken into consideration in order to determine the gravity of the infringement. The two other effects concern only the implementation of the collusion, in that they show that as well as drawing up the terms of an agreement on prices, the undertakings actually implemented the collusion, but did not prove the existence of a real impact of the agreement on prices or on the other competitive conditions on the market. 54. The appellant submits, in the alternative, that the Court of First Instance infringed the principle of proportionality in maintaining the level of the fine imposed while finding that the Commission had not proved that the infringement had had on effect on cartonboard prices. 55. The Commission states that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute its own assessment for that of the Court of First Instance with regard to the amount of the fines, lest it encroach on the exercise of its unlimited jurisdiction (see Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 31). 56. It contends that in paragraph 194 of the contested judgment the Court of First Instance did not confuse restriction of competition, the test for classifying a practice as prohibited under Article 85(1) of the Treaty, and the impact of that practice on the market, one of the many criteria which may be taken into consideration when assessing the gravity of the infringement, which falls precisely within the scope of its unlimited jurisdiction. The Court of First Instance held that the gravity of the infringement remained substantially the same in the present case, even in the absence of proof that it had had an effect on transaction prices. 57. According to the Commission, to accept the appellant's contention would be tantamount to accepting that the Court of First Instance is under an obligation to reduce the amount of the fine where the Commission has not succeeded in proving one or other of the factors on which it based its assessment of the gravity, and to limiting the Court's discretion in matters of fines by reference to that of the Commission. That would be the very negation of unlimited jurisdiction. 58. In the contested judgment the Court of First Instance first set out, in paragraph 188, the Commission's powers under Article 15 of Regulation No 17, the obligation to take into consideration, when determining the amount of the fine, both the gravity and duration of the infringement, as well as the case-law of the Court of Justice which establishes that the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines and that no binding or exhaustive list of the criteria which must be applied has been drawn up (order in SPO and Others v Commission, cited above, paragraph 54). 59. The Court of First Instance then set out, in paragraph 189, and reviewed the considerations listed in the Decision in regard to the gravity of the infringement. 60. It held that the Commission was entitled to raise the general level of fines above that in its previous decisions in order to strengthen their deterrent effect (paragraph 191 of the contested judgment) and to take account of the fact that the undertakings concerned foot steps to conceal the existence of the collusion, which constitutes 'a particularly serious aspect of [the infringement] which differentiated it from infringements previously found (paragraph 192 of the contested judgment). It also stressed the lengthy duration and the flagrant nature of the infringement of Article 85(1) of the Treaty (paragraph 193 of the contested judgment). 61. It concluded, in paragraph 194 of the contested judgment, that in the light of the foregoing considerations, the fact that the Commission had only partially proved the effect of the collusion on prices could not 'materially affect the assessment of the gravity of the infringement found. It observed in that regard that 'the fact that the undertakings actually announced the agreed price increases and that the prices so announced served as a basis for fixing individual transaction prices suffices in itself for a finding that the collusion on prices had both as its object and effect a serious restriction of competition. 62. It follows from the foregoing that, far from confusing the concept of a cartel's restrictive effect on competition and its impact on the market, the Court of First Instance considered, in the exercise of its unlimited jurisdiction, that its findings regarding the effects of the infringement were not such as to alter the Commission's own assessment of the gravity of the infringement, or, more precisely, as to diminish the gravity of the infringement so assessed. It considered, in the light of the specific circumstances of the case and the context in which the infringement took place, astaken into account by the Commission's Decision and set out in paragraphs 56 and 57 of this judgment, and in the light of the deterrent effect of the fines imposed, all being factors which could be applied, in accordance with the case-law of the Court of Justice, in assessing the gravity of the infringement (see Joined Cases 100/80 to 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, paragraph 106; Order in SPO and Others v Commission, cited above, paragraph 54, and Ferriere Nord v Commission, cited above, paragraph 33), that it was not appropriate to reduce the level of the fine. 63. The second plea must therefore be rejected as unfounded. The third plea 64. By its third plea the appellant complains that the Court of First Instance infringed the principle of non-discrimination by approving the criteria adopted by the Commission with regard to the imputability of acts of undertakings acquired during the period when the infringement was committed. 65. The Commission contests the admissibility of the plea. It observes that the appellant was aware, once the Decision was adopted, of the factors which led it to raise this plea before the Court of Justice. If it considered that there had been discrimination between the various undertakings participating in the infringement, it should have raised that plea already in its application at first instance. The third plea is therefore a new plea which, by virtue of Article 42(2) of the Rules of Procedure of the Court of Justice, applicable to appeals by virtue of Article 118 of those rules, may not be introduced in these proceedings. 66. In reply the appellant states that, although this plea was not raised before the Court of First Instance, that was because of the particularly muddled nature of the criteria adopted by the Commission, whose exact scope could be clarified only during the proceedings before the Court of First Instance. 67. The Commission's submissions cannot be upheld in that regard. As the Advocate General has observed in points 20 and 40 of his Opinion, the appellant submitted before the Court of First Instance a plea alleging that 'the conduct of Duffel and Djupafors prior to their acquisition was not attributable to Cascades, within whose scope the third plea raised before the Court of Justice undoubtedly falls. The latter plea is not therefore a new plea which may not be submitted in the course of an appeal. 68. As to the substance of the plea, the appellant claims that, according to point 145 of the Decision, responsibility for the conduct of a subsidiary prior to its transfer may be attributed either to the subsidiary itself, if it has participated in the infringement in its own right, or to the vendor group of companies if that group participated in the infringement. Moreover, according to point 143 of the Decision, if the subsidiaryitself infringed Community law and the acquiring group itself participated in the infringement, the Commission may attribute to the acquiring group the responsibility for paying the fine in respect of the subsidiaries conduct prior to its acquisition. 69. The appellant concludes from the above that a group which has acquired a subsidiary which has participated in the infringement may be treated in two radically different ways depending on whether or not the vendor has participated in the infringement, a circumstance over which the appellant had no control. Thus the acquiring group will take on the burden of paying the fine in respect of its subsidiary's conduct prior to the transfer if the vendor group did not participate in the infringement; in the contrary case, it will not be responsible for the subsidiary's conduct and will not therefore have to pay the fine. Application of those criteria leads to blatant discrimination between two acquiring groups. 70. The appellant states that, applying the above criteria, the Court of First Instance held it liable for the conduct of its two subsidiaries, Duffel and Djupafors, prior to their acquisition, whereas, in Case T-347/94, Mayr-Melnhof Kartongesellschaft mbH ('Mayr-Melnhof) was not held liable for the conduct of its subsidiary Mayr-Melnhof Eerbeek BV ('Eerbeek) in respect of the period preceding its acquisition, since liability for that conduct had been attributed to NV Koninklijke KNP BT ('KNP), the vendor group which had participated in the infringement (see Case T-347/94 Mayr-Melnhof v Commission [1998] ECR II-1751, paragraphs 400 to 405). 71. The appellant therefore requests the Court of Justice to set aside the contested judgment in so far as it held it liable for the conduct of Duffel and Djupafors prior to their acquisition and, if it considers the state of the proceedings so permits, to annul the Decision on the same grounds. 72. The Commission contends that the criteria set out in the Decision and confirmed by the Court of First Instance merely applied to the present case the principles laid down in the case-law regarding the imputability of an infringement within groups of undertakings. 73. The Commission states that in the case of the appellant, as in that of Mayr-Melnhof (regarding its subsidiary Deisswil), it applied those principles by attributing to the parent company responsibility for the conduct of its subsidiaries, both before and after the sale. It is only in the case of Eerbeek, originally a subsidiary of Mayr-Melnhof and then of KNP, that the Commission apportioned responsibility between the two parent companies, both of which had participated in the infringement. 74. In that regard, it must be observed that the Court of First Instance held in paragraph 148 of the contested judgment that 'where, prior to its acquisition, a company has participated in its own right in the infringement, the identity of the addressee of the Decision, that is to say, whether that should be the transferred company or the new parent company, is determined solely by the criteria set out in point 143. 75. Point 143 of the Decision states that as regards 'acts of companies deemed to be independent subsidiaries, the Commission addressed the Decision to the entity named in the membership lists of the PG Paperboard, except that: 1. where more than one company in a group participated in the infringement; or 2. where there is express evidence implicating the parent company of the group in the participation of the subsidiary in the cartel, the proceedings have been addressed to the group (represented by the parent company). 76. In the present case, the Court of First Instance held, in paragraph 157 of the contested judgment, that at the date of the acquisition of Djupafors and Duffel 'those two companies ... were participating in an infringement in which the applicant was also participating by virtue of the involvement of Cascades La Rochette and Cascades Blendecques and concluded, in paragraph 158: 'In those circumstances, the Commission was entitled to attribute to the applicant the conduct of Djupafors and of Duffel in respect of the period before and the period after their acquisition by the applicant. It was for the applicant, as parent company, to adopt in regard to its subsidiaries any measure necessary to prevent the continuation of the infringement of which it was aware. 77. Although the appellant was rightly held liable for the conduct of the two subsidiaries in question with effect from their acquisition, it had not been proved that it could validly be held liable for their infringements prior to that date. 78. It falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, when the Decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking. 79. In the present case, it is apparent from the contested Decision that Djupafors and Duffel participated in their own right in the infringement from mid-1986 until their acquisition by the appellant in March 1989 (see paragraph 18 of the contested judgment). Moreover, those companies were not purely and simply absorbed by the appellant but continued their activities as its subsidiaries. They must, therefore, answer themselves for their unlawful activity prior to their acquisition by the appellant, which cannot be held responsible for it. 80. Consequently, the Court of First Instance erred in law in holding that the appellant was liable for the infringements committed by Duffel and Djupafors prior to their acquisition and the contested judgment must be set aside on that ground. 81. Under the first paragraph of Article 54 of the EC Statute of the Court of Justice, if the appeal is well founded, the Court is to set aside the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment. 82. Since the documents in the file do not indicate what part of the fine related to the participation in their own right by Duffel and Djupafors in the cartel from mid-1986 until their acquisition by the appellant in March 1989, the case must be referred back to the Court of First Instance for assessment of the amount of the fine, taking into account the foregoing considerations. Costs must be reserved. On those grounds, THE COURT (Fifth Chamber), hereby: 1. Sets aside the judgment of the Court of First Instance of 14 May 1998 in Case T-308/94 Cascades v Commission in so far as it attributes to Cascades SA responsibility for the infringements committed by Van Duffel NV and Djupafors AB during the period from mid-1986 until February 1989 inclusive; 2. Dismisses the remainder of the appeal; 3. Refers the case back to the Court of First Instance; 4. Reserves the costs. La Pergola Wathelet Edward Jann Sevón Delivered in open court in Luxembourg on 16 November 2000. R. Grass D.A.O. Edward Registrar President of the Fifth Chamber 1: Language of the case: French.