Judgment — ECLI:EU:T:1998:97
Date: 1998-05-14
Language of the case: Italian
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Statement of reasons;Determining the amount of the fine;Rights of the defence and procedural guarantees;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Hearing of persons concerned and of third parties / Access to the file;Termination of infringements: powers of the Commission
Procedure: Action for annulment - unfounded;Action for annulment - successful;Action for annulment - inadmissible;Appeal against penalty - successful
Origin: Spain

summary publication, and T-151/89 Société des 
Treillis et Panneaux Soudés ν Commission [1995] ECR 11-1191, summary publica­
tion), that this Court stressed for the first time that it is desirable for undertakings 
to be able to ascertain in detail the method used for calculating the fine imposed 
without having to bring court proceedings against the Commission's decision in 
order to do so. 
II -1548 
SARRIO ν COMMISSION 
352 It follows that, when it finds in a decision that there has been an infringement of 
the competition rules and imposes fines on the undertakings participating in it, the 
Commission must, if it systematically took into account certain basic factors in 
order to fix the amount of fines, set out those factors in the body of the decision in 
order to enable the addressees of the decision to verify that the level of the fine is 
correct and to assess whether there has been any discrimination. 
353 In the specific circumstances set out in paragraph 351 above, and having regard to 
the fact that in the procedure before the Court the Commission showed itself to be 
willing to supply any relevant information relating to the method of calculating the 
fines, the absence of specific grounds in the Decision regarding the method of cal­
culation of the fines should not, in the present case, be regarded as constituting an 
infringement of the duty to state reasons such as would justify annulment in whole 
or in part of the fines imposed. Finally, the applicant has not shown that it was 
prevented from properly asserting its rights of defence. 
354 Consequently, this plea cannot be upheld. 
F — Error of appraisal by the Commission in not taking due account of the role 
played by Sarrio in the cartel and its actual conduct on the market and failure by 
the Commission to state reasons in that regard 
Arguments of the parties 
355 The applicant claims that the Commission did not take due account of its particu­
lar position on the market and in the PG Paperboard. It gives a detailed descrip­
tion of its position on the market and explains that, from the point of view of 
production capacity, it was only the fifth and fourth producer in Western Europe 
in 1990 and 1991 respectively (see the studies referred to in point 9 of the 
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JUDGMENT OF 14. 5. 1998 — CASE T-334/94 
Decision) and that its market share was half of that of the market leader. Moreover, 
owing to its specialisation in GD grades it did not have the flexibility of those 
producers with significant production in both the GD grade and GC grade sectors. 
It was, and is still, exposed to the high degree of aggressiveness of Scandinavian 
producers, who benefit from direct and integrated access to virgin fibres, and of 
German and Austrian producers, who benefit from national recycling rules. It was 
in order to face up to its competitors' dynamism that in 1986 it asked to be 
allowed to participate in the meetings of the PG Paperboard, with the intention of 
monitoring its main competitors' conduct. 
356 The Commission has not adduced any proof relating to the applicant's actual con­
duct or put forward any argument to refute its assertion that: (a) its transaction 
prices were determined autonomously and in accordance with market conditions; 
(b) there were considerable discrepancies between announced prices and transac­
tion prices; (c) its market shares had fluctuated considerably throughout the period 
under consideration and (d) in alignment with market conditions, it had never 
taken downtime. The applicant states that it never took initiatives intended to 
restrict its competitors' freedom of action. The only evidence of such conduct is a 
private note from one manager of a competitor to that of another. However, that 
note is in general terms and the conduct referred to in it is merely attributed to the 
applicant (appendix 109 to the statement of objections). 
357 The applicant claims that an examination of its actual conduct showed that it did 
not correspond to that of the alleged cartel, and this should have led the Commis­
sion to assess the applicant's position much more favourably when determining the 
amount of the fine. The note discovered at FS Carton, on which the Commission 
relies as evidence of the actual implementation of the cartel by the applicant, does 
not in any way relate to its actual conduct on the market, but merely shows its 
participation in concerted action on announced prices. 
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SARRIO ν COMMISSION 
358 Lastly, the Decision is vitiated by an inadequate statement of reasons in that, with­
out giving any grounds, the Commission failed to assess the essential evidence 
adduced by the applicant in regard to its role within the PG Paperboard and its 
conduct on the market. 
359 The Commission contends that in point 169 of the Decision it took account both 
of the role played by each undertaking in the collusive agreements and the appli­
cant's actual conduct. The Decision contains a correct statement of reasons in that 
regard. 
Findings of the Court 
360 It follows from the Court's findings relating to the applicant's pleas in support of 
its application for annulment in whole or in part of Article 1 of the Decision that 
the nature of the PWG's functions, as set out in the Decision, has been demon­
strated by the Commission. 
361 In those circumstances, the Commission was fully entitled to conclude that the 
undertakings, including the applicant, which participated in the meetings of that 
body had to be regarded as 'ringleaders' of the infringement found and that 
accordingly they had to bear special responsibility (see point 170, first paragraph, 
of the Decision). The applicant's explanation that it participated in the meetings of 
the PWG only in order to obtain information which would permit it to monitor 
the behaviour of its principal competitors merely confirms the essentially anti­
competitive purpose of its participation. 
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JUDGMENT OF 14. 5. 1998 — CASE T-334/94 
362 Moreover, the applicant has not in any way proved that it played an essentially 
passive role in the bodies of the PG Paperboard and that its actual conduct on the 
market was always determined independently. 
363 It is not disputed that the applicant actually took part in the concerted price initia­
tives by announcing the agreed price increases on the market. Furthermore, as the 
Commission has correctly claimed, it is clear from appendix 109 to the statement 
of objections (see paragraph 55 above) that the applicant asked other producers to 
abide by the agreed price increases. Lastly, as to the applicant's actual behaviour in 
regard to prices, there is nothing to support the conclusion that its transaction 
prices were significantly lower than those of the other producers participating in 
the collusion on prices. 
364 As to the applicant's arguments based on the fluctuations in its market shares dur­
ing the period of the infringement found by the Decision, it suffices to state that 
the applicant argues that those fluctuations are explained by the fact that several 
producers had increased their production capacities in order to meet the strong 
growth in demand found until 1990. In those circumstances, although it is true that 
the applicant did not carry out any increase in its production capacities before the 
acquisition of Prat Carton in February 1991, the fluctuations in its market shares 
cannot constitute a factor mitigating its responsibility for its unlawful conduct. 
365 Furthermore, it was only in 1990 that market conditions were such that the under­
takings considered that it was necessary to take actual downtime and, according to 
the Decision itself, there was merely a 'loose system of encouragement' in that 
regard (see paragraphs 96 and 151 above). Consequently, since the applicant took 
part in meetings at which the question of downtime was dealt with, but did not 
publicly distance itself from the discussions which took place, the Court considers 
II -1552 
SARRIÓ ν COMMISSION 
that, even assuming that the applicant did not take downtime during the period 
covered by the Decision, that fact cannot prove that its own conduct might have 
helped to counter the anti-competitive effects of the infringement found. 
366 In short, in the light of its grounds as a whole, the Decision adequately explains 
the Commission's appraisal of the applicant's role in the infringement found and 
of its conduct on the market. 
367 Consequently, this plea must also be rejected. 
G — The Commission ought to have taken certain mitigating circumstances into 
account 
Arguments of the parties 
368 The applicant claims that, even assuming that the cartel must be considered, in 
general, to have affected market conditions, the Commission, when appraising the 
applicant's situation, should have recognised, as mitigating circumstances, a series 
of factors which show that the cartel had no, or only insignificant, effect on the 
segment of the relevant market. 
369 According to the applicant, the Commission should have taken into account, first, 
the fact that between 1986 and 1992 the transaction prices secured by the applicant 
on the Italian market, the main outlet for its products, had always followed 
changes in the industrial prices index. Second, it should have taken into account 
the ease with which other types of products, such as all those derived from plastic, 
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JUDGMENT OF 14. 5. 1998 — CASE T-334/94 
may be substituted for cartonboard, which, it claims, means that any form of 
'exploitation' of the market is precluded or extremely limited. Third and last, the 
Commission should have taken account of the fact that during the period in ques­
tion GD grade had lost a large part of its market share to GC grade. Having regard 
also to the erosion of the applicant's market share and to the level of increases of 
Italian prices, which was lower than the level of price increases on the other Euro­
pean markets, it should therefore be concluded that the cartel was not successful 
for the applicant. 
370 The Commission observes that it is necessary to assess the cartel's impact on the 
market as a whole and that, from that point of view, the cartel was in fact very suc­
cessful. In any event, none of the factors invoked by the applicant can be regarded 
as a mitigating circumstance justifying a reduction of the fine. 
Findings of the Court 
371 The Court has already considered the question whether the Commission had cor­
rectly assessed the effects of the infringement on the market (see paragraph 295 et 
seq. above) and whether the applicant's conduct on the market should have been 
taken into account as a mitigating circumstance when the amount of the fine was 
set (see paragraph 360 et seq. above). 
372 Having regard to those findings of the Court, the arguments on which the appli­
cant relies in support of the present plea cannot, be upheld. 
373 Since the collusion on prices concerned both GC cartonboard and GD carton-
board and there is nothing to support the view that the applicant's own conduct 
II -1554 
SARRIO ν COMMISSION 
helped to counter the anti-competitive effects of the infringement, the Commission 
was fully entitled not to take into account, when determining the amount of the 
fine imposed on the applicant, the loss of market share from G D cartonboard to 
G C cartonboard. Furthermore, the applicant has not shown that there is a link 
between the infringement and changes in the market shares of the various grades of 
cartonboard. 
374 Furthermore, even assuming that the increases in transaction prices found on the 
Italian market, the applicant's main outlet, were lower than those found on the 
other Community markets, it suffices to observe that the collusion on prices in 
which the applicant participated concerned almost the whole of the territory of the 
Community and that the applicant announced the agreed price increases on all the 
principal European markets (see tables Β to G annexed to the Decision). 
375 Finally, any high degree of interchangeability between cartonboard and other 
products cannot affect the findings already made by the Court regarding the effects 
of collusion on prices (see paragraph 295 et seq. above). 
376 Consequently, this plea must be rejected. 
H — Material error in the calculaion of the fine imposed on Sarrio 
Arguments of the parties 
377 The applicant submits that the Commission committed a material error when it 
calculated the fine. The Commission took the turnover figure for 1990, which was 
sent to it in August 1991 in reply to a request for information under Article 11 of 
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JUDGMENT OF 14. 5. 1998 — CASE T-334/94 
Regulation N o 17, whereas it should have calculated the fine by reference to the 
corrected and certified turnover figure sent in 1993 as an annex to the reply to the 
statement of objections. 
378 In those circumstances, the Commission not only committed a material error in 
calculating the fine imposed on Sarrio but it also infringed the principle of equal 
treatment, because the fines imposed on the other addressees of the Decision were 
calculated on a correct basis. In calculating the fine on the basis of a turnover fig­
ure furnished before Sarrio could have foreseen the imposition of a fine and in 
ignoring the certified figures provided subsequently, the Commission also 
infringed Sarrió's rights of defence. 
379 The Commission counters by stating that it is precisely in order to avoid any dis­
pute that it used the turnover figure supplied in reply to a request for information 
under Article 11 of Regulation N o 17 and that it does not see why the figure sent 
before the statement of objections is incorrect while the figure sent after it is cor­
rect. 
Findings of the Court 
380 Having regard to the documents before the Court, the Commission did not com­
mit any error in adopting as its basis for calculating the fine the 1990 turnover 
figure sent by the applicant in August 1991 and not the corrected figure sent in 
May 1993. An undertaking which, during the administrative procedure before the 
Commission, corrects a figure, such as a turnover figure, previously sent to the 
Commission in reply to one of its requests for information, must set out in detail 
the reasons for which the figure initially sent should no longer be adopted for the 
remainder of the procedure. 
II -1556 
SARRIÓ ν COMMISSION 
381 The applicant did not do so in the present case. In its reply to the statement of 
objections the applicant merely stated that the 1990 turnover figure had been cor­
rected by subtracting amounts relating to internal group operations, to sales of 
products falling outside the scope of the Commission's investigation (boxes and 
raw cartonboard), complaints, quantity rebates, unsold goods and discounts 
allowed to customers, but without supporting that rectification by means of a 
detailed breakdown in figures. Moreover, the rectified turnover figure was not cer­
tified by an accountant, and the applicant confirmed at the hearing that its claim in 
that regard was incorrect. In the result, the Commission acted correctly in reject­
ing the rectified turnover figure and in calculating the fine on the basis of the turn­
over figure originally submitted. 
382 The plea must therefore be rejected. 
I — Error in the method of calculating the fine 
Arguments of the parties 
383 The applicant states that in arriving at the amount of the fine the Commission first 
converted the turnover for the relevant financial year, namely 1990, into ecus, 
applying the average rate applicable for that year, and then determined the amount 
of the fine by applying the previously established percentage, namely 6% in its 
case. In so doing, the Commission failed to take account of the effects of monetary 
fluctuations, since both the Spanish peseta and the Italian lira had undergone a 
substantial devaluation as against the ecu and the other European currencies since 
1990. The applicant claims that today, in national currency, it will have to pay 
approximately PTA 2 452 million in order to discharge the fine. O n the basis of 
the certified turnover figure (PTA 27 256 million) relating to cartonboard sales 
within the Community in 1990, a fine of 6% of that amount would have been 
approximately PTA 1 635 million. The fine actually imposed therefore represents 
an additional financial charge of PTA 817 million. According to the applicant, if 
the exchange rate applicable at the moment when the Decision was published is 
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JUDGMENT OF 14. 5. 1998 — CASE T-334/94 
used, the amount of the fine in fact corresponds to approximately 9% of its 1990 
turnover. It must therefore be concluded that either the Commission did not take 
account of the one-third reduction which it had nevertheless allowed, or that, 
before that reduction, the fine corresponds to approximately 13.4% of the relevant 
turnover figure, thereby exceeding the legal limit of 10% of turnover laid down in 
Article 15(2) of Regulation N o 17. 
384 The applicant submits, next, that the purpose of the (percentage) rate of the fine is 
to express the conclusion reached by the Commission as regards the amount, and 
therefore the impact, which the fine should represent in relation to the turnover of 
the undertaking concerned. Consequently, the amount of the fine must be deter­
mined on the basis of the assessment of the gravity of the infringement and, by 
contrast, factors such as monetary fluctuations, which are unrelated to the 
infringement to be punished and which are not imputable to the person respon­
sible for that infringement, must not therefore affect the amount of the fine. The 
applicant refers to the Opinion of Advocate General Sir Gordon Slynn in Musique 
Diffusion Française and Others ν Commission, cited above, (at p. 1914), according 
to which, when fixing the amount of fines, it is necessary to take account of the 
most recent turnover figure, which then best reflects the undertaking's real pos­
ition. 
385 It considers that its contention that the amount of the fine should not be affected 
by exchange rate fluctuations is confirmed by the judgment of the Court of Justice 
in Joined Cases 41/73, 43/73 and 44/73 — interpretation — Société Anonyme Gén­
érale Sucrière and Others ν Commission [1977] ECR 445, paragraphs 12 to 17). As 
regards that judgment, the applicant in its reply contests the Commission's conten­
tion that it confirms that if the unit of account ('u. a.') relevant at that time had 
been a currency of payment, its conversion into national currency would have 
been unnecessary. 
386 The applicant claims that the Decision also leads to unjustified differences in treat­
ment, because the monetary fluctuations completely alter the relationship between 
the various fines imposed. It states that between 1990 and 1994 the peseta was 
II -1558 
SARRIÓ ν COMMISSION 
devalued by 22% as against the ecu, whereas during the same period, the Dutch, 
German and Austrian currencies were revalued by approximately 7.5% as against 
the ecu. Consequently, without any objective grounds, the applicant received a fine 
which entailed for it a cost approximately 30% more than the cost of fines 
imposed on other undertakings, and particularly the German undertakings. 
387 The applicant concludes that nothing requires the Commission to express the 
amount of the fine in ecus and that it should therefore have expressed that amount 
in national currency in order to avoid unjustified differences in treatment. Even 
assuming that the Commission has the power to express the amount of the fine in 
ecus, it should at least have used an exchange rate which ensures equal treatment, 
namely the exchange rate at the time when the fine was imposed (the day of the 
publication or of notification of the Decision). 
388 The Commission observes that Article 15(2) of Regulation N o 17 allows it to 
impose fines 'not exceeding 10% of the turnover in the preceding business year' of 
each of the undertakings participating in the infringement. That rate of 10% 
applied to overall turnover constitutes the upper limit of the fine (Case C-279/87 
Tipp-Ex ν Commission, summary publication, [1990] ECR I-261, paragraph 38 et 
seq.). Thus, since the Commission determined the fine by reference to the 1990 
financial year, the last complete year during which the cartel operated, and con­
verted all the turnover figures into ecus on the basis of the average exchange rate 
for that year, it kept within the limits laid down by Regulation N o 17. 
389 The conversion into ecus on the basis of the exchange rate in the reference year 
provides the actual turnover expressed in ecus, precisely in order to avoid any dis­
crimination between the addressee undertakings resulting from fluctuations in the 
national currencies of the various Member States. The judgment in Société 
Anonyme Générale Sucrière and Others ν Commission, cited above, does not 
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JUDGMENT OF 14. 5. 1998 — CASE T-334/94 
support the applicant's contention. It is clear from that judgment that it deals only 
with the question of whether or not it is necessary to express the fine in national 
currency owing to the fact that the u. a. was not a currency of payment. 
390 As to the allegedly discriminatory effects of the method applied, the Commission 
states that the risk of monetary fluctuations is inherent in commerce and interna­
tional trade. It is a factor which is impossible to eliminate and which will in any 
event affect the amount of the fine at the moment of payment. However, it is pre­
cisely by the conversion of the turnover figures into ecus that any discrimination is 
best eliminated. By that method, the fine is calculated in 'real' terms. The imposi­
tion of the fine in national currency would ultimately render it wholly nominal, to 
the benefit, as the applicant's calculations prove, of undertakings whose turnover is 
expressed in a weak currency. It should be noted that the value of the ecu is deter­
mined on the basis of the value of each national currency and that, since the 
addressee undertakings of the Decision operate in various Member States and in 
various national currencies, conversion into ecus is an effective application of the 
principle of equal treatment. 
391 As to the applicant's argument that the Commission should at the very least have 
used the exchange rate prevailing at the time when the fine was imposed, the Com­
mission counters by stating that the turnover figure for the reference year had a 
real value at the rate in force at that moment and not at the subsequent rate in 
force at the moment when the Decision was adopted. 
Findings of the Court 
392 Article 4 of the Decision provides that the fines imposed are to be payable in ecus. 
II -1560 
SARRIO ν COMMISSION 
393 Nothing precludes the Commission from expressing the amount of the fine in 
ecus, a monetary unit which is convertible into national currency. That also allows 
the undertakings more easily to compare the amounts of the fines imposed. More­
over, the possibility of converting the ecu into national currency distinguishes that 
monetary unit from the 'unit of account' referred to in Article 15(2) of Regulation 
N o 17, in regard to which the Court expressly held that, since it was not a cur­
rency in which payment was made, it necessarily meant that the amount of the fine 
had to be determined in national currency (Société Anonyme Générale Sucrière and 
Others ν Commission, cited above, paragraph 15). 
394 The Court cannot uphold the applicant's criticism in regard to the legality of the 
Commission's method of converting into ecus the undertakings' reference turn­
over at the average exchange rate for that same year (1990). 
395 First of all, the Commission should ordinarily use one and the same method of 
calculating the fines imposed on the undertakings penalised for having participated 
in the same infringement (see Musique Diffusion Française and Others ν Commis­
sion, cited above, paragraph 122). 
396 Second, in order to be able to compare the different turnover figures sent to it, 
which are expressed in the respective national currencies of the undertakings con­
cerned, the Commission must convert those figures into a single monetary unit. As 
the value of the ecu is determined in accordance with the value of each national 
currency of the Member States, the Commission rightly converted the turnover 
figure of each of the undertakings into ecus. 
397 The Commission also acted correctly in taking the turnover in the reference year 
(1990) and converting that figure into ecus on the basis of the average exchange 
rates for that same year. In the first case, the taking into account of the turnover 
achieved by each undertaking during the reference year, that is to say, the last com­
plete year of the period of infringement found, enabled the Commission to assess 
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JUDGMENT OF 14. 5. 1998 — CASE T-334/94 
the size and economic power of each undertaking and the scale of the infringement 
committed by each of them, those aspects being relevant for an assessment of the 
gravity of the infringement committed by each undertaking (see Musique Diffusion 
Française and Others ν Commission, cited above, paragraphs 120 and 121). In the 
second place, taking into account, in order to convert the turnover figures in ques­
tion into ecus, the average exchange rates for the reference year adopted, enabled 
the Commission to prevent any monetary fluctuations occurring after the cessation 
of the infringement from affecting the assessment of the undertakings' relative size 
and economic power and the scale of the infringement committed by each of them 
and, accordingly, its assessment of the gravity of that infringement. The assessment 
of the gravity of an infringement must have regard to the economic reality as 
revealed at the time when that infringement was committed. 
398 Thus, the argument that the turnover figure for the reference year should have 
been converted into ecus on the basis of the rate of exchange at the date of adop­
tion of the Decision cannot be upheld. The method of calculating the fine by using 
the average rate of exchange for the reference year makes it possible to avoid the 
uncertain effects of changes in the real value of the national currencies which may, 
and in this case actually did, arise between the reference year and the year in which 
the Decision was adopted. Although this method may mean that a given undertak­
ing must pay an amount, expressed in national currency, which is in nominal terms 
greater or less than that which it would have had to pay if the rate of exchange at 
the date of adoption of the Decision had been applied, that is merely the logical 
consequence of fluctuations in the real values of the various national currencies. 
399 In addition, several of the addressee undertakings of the Decision own carton-
board mills in more than one country (see points 7, 8 and 11 of the Decision). 
Moreover, the addressees of the Decision generally carry out their activities in 
more than one Member State through the intermediary of local representatives. As 
a result, they operate in several national currencies. The applicant itself achieves a 
considerable part of its turnover on export markets. Where a decision like the 
decision at issue penalises infringements of Article 85(1) of the Treaty and where 
the addressees of the decision generally pursue their activities in several Member 
States, the turnover for the reference year converted into ecus at the average 
II -1562 
SARRIO ν COMMISSION 
exchange rate used during that same year is made up of the sum of the turnovers 
achieved in each country in which the undertaking operates. It therefore takes per­
fect account of the actual economic situation of the undertakings concerned during 
the reference year. 
400 Lastly, it is necesary to determine whether, as the applicant claims, the ceiling set 
by Article 15(2) of Regulation N o 17, namely '10% of the turnover in the preced­
ing business year', was exceeded by reason of the monetary fluctuations which 
occurred after the reference year. 
401 According to the case-law of the Court of Justice, the percentage referred to in 
that provision refers to the total turnover of the undertaking in question {Musique 
Diffusion Française and Others ν Commission, paragraph 119). 
402 For the purposes of Article 15(2) of Regulation N o 17, 'preceding business year' is 
the one which precedes the date of the decision, namely, in the present case, the 
last full business year of each of the undertakings concerned as at 13 July 1994. 
403 In the light of those considerations, the Court holds, on the basis of the infor­
mation supplied by the applicant in reply to a written question put by this Court, 
that the amount of the fine converted into national currency at the rate of 
exchange prevailing at the time when the Decision was published does not exceed 
10% of the applicant's total turnover in 1993. 
404 Having regard to the foregoing, this plea must be rejected. 
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JUDGMENT OF 14. 5. 1998 — CASE T-334/94 
J — Erroneous calculation of the part of the fine corresponding to the infringement 
imputed to Prat Carton and infringement of the obligation to state reasons in that 
regard 
Arguments of the parties 
405 The applicant claims that the Commission wrongly calculated the part of the fine 
corresponding to the infringement allegedly committed by Prat Carton in that it 
adopted the same percentage of turnover as that selected for the applicant, namely 
9%, reduced by one-third on account of its cooperation during the investigation of 
the case. However, the limited participation of Prat Carton in the meetings of the 
JMC from June 1990 to March 1991 and the fact that it was not a 'ringleader' were 
grounds for reducing the amount of the fine. 
406 Lastly, the applicant complains of a total lack of transparency and absence of rea­
sons for the calculation of the part of the fine corresponding to the infringement 
imputed to Prat Carton. 
407 The Commission observes that, as it explained in point 154 of the Decision, the 
applicant, which acquired Prat Carton in February 1991, is responsible for the lat-
ter's anti-competitive conduct for the whole of the period of its membership of the 
cartel. Since the Decision imposed a single fine on the applicant, which was calcu­
lated on the basis of its total turnover for cartonboard, and thus included the turn­
over of Prat Carton, the conduct of the latter undertaking did not give rise to the 
imposition of a separate fine. According to the Commission, the applicant's argu­
ment is therefore at variance with the fact that a fine was imposed on the applicant 
alone. 
408 In those circumstances, any claim of a lack of transparency or incoherency in the 
statement of reasons of the Decision in that connection is also to be rejected. 
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SARRIO ν COMMISSION 
Findings of the Court 
409 According to the Commission's explanations, the fine imposed on the applicant 
corresponds to 6% of the turnover achieved in 1990 by the applicant and Prat Car­
ton together (a rate of 9% adopted against 'ringleaders', reduced by one-third on 
account of the applicant's cooperative attitude). Even though in such a case it is 
desirable that the Decision should contain a fuller explanation of the calculation 
method applied, for the reasons already stated (see paragraphs 351 to 353 above) 
the applicant's claim that there has been an infringement of Article 190 of the 
Treaty must be rejected. 
410 Next, it should be observed (see paragraph 250 above) that the Commission has 
demonstrated Prat Carton's participation in collusion on prices and collusion on 
downtime between June 1990 and February 1991. O n the other hand, it has been 
held that the Commission has not adequately proved Prat Carton's participation in 
collusion on market shares during the same period nor its participation from 
mid-1986 until June 1990 in one of the constituent elements of the infringement set 
out in Article 1 of the Decision. 
411 Because Prat Carton participated in some only of the constituent elements of the 
infringement and for a much lesser period than that found by the Commission, the 
amount of the fine imposed on the applicant must be reduced. 
412 In the present case, as none of the other pleas on which the applicant relies justifies 
reducing the fine, the Court, exercising its unlimited jurisdiction, sets the amount 
of that fine at E C U 14 million. 
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Costs 
413 Under Article 87(3) of the Rules of Procedure, the Court may, where each party 
succeeds on some and fails on other grounds, order costs to be shared or order 
each party to bear its own costs. As the action has been only partially successful, 
the Court considers it fair in the circumstances of the case to order the applicant to 
bear its own costs and to pay one-half of the Commission's costs and to order the 
Commission to bear the other half of its own costs. 
On those grounds, 
THE COURT O F FIRST INSTANCE 
(Third Chamber, Extended Composition) 
hereby: 
1. Annuls, as regards the applicant, the first to fourth paragraphs of Article 2 
of Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding 
under Article 85 of the EC Treaty (IV/C/33.833 — Cartonboard) save and 
except the following passages; 
'The undertakings named in Article 1 shall forthwith bring the said 
infringement to an end, if they have not already done so. They shall hence­
forth refrain in relation to their cartonboard activities from any agreement 
or concerted practice which may have the same or a similar object or effect, 
including any exchange of commercial information: 
(a) by which the participants are directly or indirectly informed of the pro­
duction, sales, order backlog, machine utilisation rates, selling prices, 
costs or marketing plans of other individual producers. 
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SARRIO ν COMMISSION 
Any scheme for the exchange of general information to which they sub­
scribe, such as the Fides system or its successor, shall be so conducted as to 
exclude any information from which the behaviour of individual producers 
can be identified.'; 
2. Sets the amount of the fine imposed on the applicant by Article 3 of 
Decision 94/601 at ECU 14 million; 
3. Dismisses the application as regards the remaining claims; 
4. Orders the applicant to bear its costs and to pay one-half of the Commis­
sion's costs; 
5. Orders the Commission to bear one-half of its costs. 
Vesterdorf Briët Lindh 
Potocki Cooke 
Delivered in open court in Luxembourg on 14 May 1998. 
H. Jung 
Registrar 
B. Vesterdorf 
President 
II-1567 
JUDGMENT OF 14. 5. 1998 — CASE T-334/94 
Summary 
Facts II - 1447 
Procedure II - 1454 
Forms of order sought II - 1456 
The application for annulment of the Decision II - 1457 
A — The plea relating to procedure and requirements of form, grounded upon infringe­
ment of the rights of the defence II - 1457 
Arguments of the parties II - 1457 
Findings of the Court II - 1458 
Β — Substance II - 1459 
The plea as to the absence of collusion on transaction prices and infringement of 
the obligation to state reasons II - 1459 
Arguments of the parties II - 1459 
Findings of the Court II - 1461 
Non-participation by the applicant in an agreement to freeze market shares and 
control supply II - 1465 
Arguments of the parties II - 1465 
Findings of the Court II - 1469 
1. Existence of concerted action to freeze market shares and to control 
supply II - 1469 
2. The applicant's actual conduct II - 1478 
Error by the Commission regarding the duration of concertation on prices II - 1479 
Arguments of the parties II - 1479 
Findings of the Court II - 1480 
Error of the Commission regarding the duration of the understanding on the 
freezing of market shares and on controlling supply II - 1485 
Arguments of the parties II - 1485 
Findings of the Court II - 1486 
Error of assessment by the Commission as regards the Fides information exchange 
system II - 1488 
Error committed by the Commission in considering that there was one overall 
infringement and that Sarrio was responsible for it as a whole II - 1489 
Arguments of the parties II - 1489 
Findings of the Court II - 1490 
II - 1568 
SARRIO ν COMMISSION 
Failure of the Commission to take the Spanish market situation into consideration II - 1494 
Non-participation of Prat Carton in the infringement II - 1495 
Arguments of the parties II - 1495 
Findings of the Court II - 1497 
1. Period from mid-1986 to June 1990 II - 1498 
(a) Participation of Prat Carton in meetings of the PC II - 1499 
(b) Participation of Prat Carton in certain meetings of the Economic 
Committee I I - 1 5 0 2 
(i) Object of the Economic Committee's meetings in general II - 1502 
(ii) Meeting of the Economic Committee of 3 October 1989 II - 1504 
(c) Stora's statement concerning the transmission of information to 
undertakings not present at the meetings II - 1506 
(d) Participation of Prat Carton in meetings of the JMC II - 1507 
(e) Conclusion as regards the period in question II - 1507 
2. Period from June 1990 to February 1991 I I - 1 5 0 8 
(a) Participation of Prat Carton in collusion on prices II - 1508 
(b) Participation of Prat Carton in collusion on downtime I I - 1 5 1 3 
(c) Participation of Prat Carton in collusion on market shares I I - 1 5 1 6 
3. Conclusions relating to participation of Prat Carton in an infringe­
ment of Article 85(1) of the Treaty before its acquisition by the appli­
cant in February 1991 I I - 1 5 1 8 
The application for annulment of Article 2 of the Decision II - 1519 
Arguments of the parties II - 1519 
Findings of the Court II - 1522 
The claim for annulment or reduction of the amount of the fine II - 1528 
A — Need to reduce the fine on account of an erroneous definition of the subject-
matter and duration of the infringement II - 1528 
Β — Error of appraisal by the Commission in that it considered that the cartel 'was 
largely successful in achieving its objectives' and infringement of the obligation to 
state reasons in that regard II - 1529 
Arguments of the parties II - 1529 
Findings of the Court II - 1532 
II - 1569 
JUDGMENT OF 14. 5. 1998 — CASE T-334/94 
C — Error of law by the Commission in holding that concealment of the cartel was an 
aggravating factor and defective statement of reasons in that regard 11-1537 
Arguments of the parties II - 1537 
Findings of the Court II - 1537 
D — Infringement of the principle of equal treatment in that the Commission imposed, 
without objective reasons, much higher fines than in its previous practice II - 1539 
Arguments of the parties II - 1539 
Findings of the Court II - 1540 
E — Insufficient statement of reasons and infringement of the rights of the defence as 
regards calculation of the fine II - 1544 
Arguments of the parties II - 1544 
Findings of the Court II - 1545 
F — Error of appraisal by the Commission in not taking due account of the role played 
by Sarrio in the cartel and its actual conduct on the market and failure by the Com­
mission to state reasons in that regard II - 1549 
Arguments of the parties II - 1549 
Findings of the Court II - 1551 
G — The Commission ought to have taken certain mitigating circumstances into 
account II - 1553 
Arguments of the parties II - 1553 
Findings of the Court II - 1554 
H — Material error in the calculation of the fine imposed on Sarrio II - 1555 
Arguments of the parties II - 1555 
Findings of the Court II - 1556 
I — Error in the method of calculating the fine II - 1557 
Arguments of the parties II - 1557 
Findings of the Court II - 1560 
J — Erroneous calculation of the part of the fine corresponding to the infringement 
imputed to Prat Carton and infringement of the obligation to state reasons in that 
regard II - 1564 
Arguments of the parties II - 1564 
Findings of the Court II - 1565 
Costs II - 1566 
II - 1570