61985C0089(01)
OPINION OF ADVOCATE GENERAL
DARMON
delivered on 7 July 1992 (
*1
)
Summary
The market for wood pulp
The product
The producers
The customers
Announced prices and transaction prices
Trends on the pulp market
Procedure and decision
I — Procedural submissions
A — The decision embodies complaints which are not referred to in the Statement of Objections
(1) The Statement of Objections did not refer to concertation on transaction prices
(2) Duration of concertation
(a) Duration of the infringement until the date of the Statement of Objections
(b) Duration of the infringement established for certain producers
(3) Identity of the producers involved in the concerted practice
(4) St Anne's participation in Fides
B — The evidence on which the decision is based
(1) Transaction prices
(2) The documents relating to Fides
C — The refusal to organize a joint administrative hearing
D — The failure to consult the Advisory Committee on Restrictive Practices and Monopolies
Conclusion
II — ‘General’ concertation on announced prices
A — The concept of concerted practices
B — Evidence of a concerted practice on announced prices for wood pulp
(1) Parallel conduct of the producers
1.1. Parallelism of announced prices
1.2. The system of price announcements
1.2.1. The system of price announcements created artificial transparency on the pulp market and constituted a system for exchanging information between producers
(a) The role of customers in the dissemination of information on announced prices
a.1 Integrated producers
a.2 The role of important customers
a.3 Common customers
a.4 Horizontal communication between purchasers
(b) Common agents
(c) The trade press
1.2.2. The system of quarterly announcements
(a) The quarterly announcements mechanism is said not to be necessitated by objective market conditions
a.1 Quarterly basis of price announcements
a.2 The use of the US dollar by non-United States producers
(b) Simultaneous price announcements
1.3. Parallelism of announced prices: evidence of concertation on the pulp market?
1.3.1. The Commission's analysis
1.3.2. The expert's report ordered by the Court
(a) The expert's report is said to oversimplify the Commission's reasoning
(b) The economic model used by the experts
(c) The alleged failure to examine the level of prices
(d) The period from 1975 to 1977
(e) The different aspects of price uniformity
e.1 Uniform prices for the same grade of pulp
e.2 Uniform prices for different qualities of pulp
e.3 Uniform prices for different customers buying differing quantities
e.4 Uniform prices in US dollars for customers in different countries
(f) Concertation or market conditions?
f.1 Undertakings that were not involved in the procedure
f.2 Changes in market shares
(g) The pulp market before 1975 and after 1981
g.1 The market before 1975
g.2 The market after 1981
Conclusion
1.4. The statement of reasons in the decision
(2) Direct and indirect exchange of information
III — Concertation within KEA
IV — Concertation within Fides
V — The clauses prohibiting export and resale
VI — Effect on trade between Member States
VII — The alleagation of discrimination
VIII — The undertaking
IX — The fines
(1) Discrimination
(2) The amount of the fines
X — Costs
Mr President,
Members of the Court,
1.
Last but not least... For several reasons, that is the expression which most readily comes to mind when delivering my Opinion in this, the ‘wood pulp’ case. First of all, because it is the last competition case brought by undertakings to be decided by the Court at first and last instance: the criterion adopted for the allocation of cases pending before the Court of Justice at the time of the establishment of the Court of First Instance meant, in view of the stage of the proceedings reached at the time, that this case would be heard by the Court of Justice. Secondly, because this Opinion and the Court's judgment will constitute the last stage of a long drawn-out procedure whose salient features were, in particular, a hearing in January 1988, an initial judgment of the full Court on 27 September 1988 rejecting the submission relating to the extraterritorial scope of Community competition law, the hearing in 1990 of the first ‘accountancy’ experts followed, in November 1991, by the hearing at which every aspect raised in the applications was considered and in which the ‘economics’ experts were heard. However, neither this case nor this last stage are by any means of little account. The quite vast dimensions of this case, in terms of both the complexity and the sheer volume of the arguments put forward, as well as the number of applicants, make it anything but ordinary.
2.
Inevitably, I have had to resign myself, in order to take account of manifold objective constraints and of the concern to keep this Opinion within reasonable limits, to neglecting certain aspects of those arguments where the reasons for the solution which I shall propose to the Court would seem not to be affected thereby.
3.
Before I proceed to examine a case which has itself helped to stimulate demand for wood pulp in the Community as a result of the sheer volume of documents produced, it is necessary to recall the characteristics of the market for wood pulp, followed by the main features of the procedure and of the contested decision.
The market for wood pulp
The product
4.
The contested decision is concerned with bleached sulphate pulp used in paper manufacturing and offered on the open market (‘market pulp’). There are other processes for the production of pulp (chemical or mechanical) but sulphate pulp is best in quality. It is obtained by the chemical processing of cellulose in a two-stage process. To begin with, the first stage leads to the production of unbleached (brown) sulphate pulp which is used in the manufacture of packaging material (bags, boxes etc). Next, in order to be used in the manufacture of finer papers, (newsprint, writing paper) requiring, in particular, a high degree of brightness, the pulp is bleached chemically. That process has the advantage of consuming less energy and causing less pollution than other processes. In addition, practically all types of wood can be used in the manufacture of bleached sulphate pulp. Consumption of such pulp has grown in recent years and, according to the decision, accounted for approximately one-third of the market in 1980.
5.
There are several types of bleached sulphate pulp whose classification depends on the type of tree from which it comes. The main distinction is between softwood pulp and hardwood pulp. The two categories have different properties: softwood pulp has longer and more resistant fibres. Hardwood pulp, which has shorter fibres, is used for the manufacture of soft paper, which is not so strong. Softwood pulp is considered to be of better quality than hardwood pulp. Within each category, moreover, there is a difference according to whether the pulp was produced in northern or southern latitudes. Generally speaking, hardwood and softwood from northern latitudes are considered better in quality than those from southern latitudes. Since 1978 there have been four price levels for those products, the highest prices being paid for- northern softwood and the lowest for southern hardwood.
6.
In view of the properties of the different categories of pulp, paper manufacturers generally use a mixture of types in order to obtain paper of the specific grade required.
7.
Within any pulp category, pulp is very largely interchangeable. In contrast, there is less interchangeability between the different categories in the short term. A switch in category is likely to be very costly for the paper manufacturer; it is a relatively long process requiring trials and possibly even conversion of equipment.
The producers
8.
Bleached sulphate pulp is produced by some 800 producers scattered in over 30 countries. A major part of the pulp is used by the producers (or their subsidiaries). The pulp which they sell on the market is known as ‘market’ pulp, it should be recalled, and it is this which forms the subject-matter of the contested decision. According to the decision, total output of bleached market pulp amounted to approximately 18 million tonnes in 1981. Canada was the leading producer (with more than 6 million tonnes), followed by the United States (with more than 4 million tonnes), Sweden (with 2.5 million tonnes) and Finland (with 1.6 million tonnes).
9.
According to the decision, there are more than 50 firms which sell market pulp in the Community. For their part, some of the applicants emphasize that pulp is sold in the Community by 115 firms and that it comes from 18 countries.
10.
As far as total turnover is concerned, the United States and Canadian producers are larger than the Swedish and Finnish producers, who are the traditional suppliers of the European market to which they sell twothirds of their output. The market was penetrated by Canadian and United States producers in the 1950s. Exports from the United States grew substantially in the 1970s. The Community market does not have the same importance for the North American producers as it has for the Swedish and Finnish producers. The main outlet for Canadian and United States producers is the United States domestic market. From their point of view, therefore, the Community market is used primarily to offset cyclical fluctuations on the United States market.
11.
The tendency towards vertical integration is particularly marked in the pulp industry: many pulp producers also manufacture paper or hold sizeable shares in paper mills. (
1
)
12.
The cost structure (
2
) varies according to the areas in which production is located. Generally speaking, wood costs are substantially higher in Finland and Sweden than in the United States and Canada. However, transport costs are said to be higher for pulp from the latter countries than they are for pulp from Scandinavia. Furthermore, the Commission and some of the applicants consider that fixed costs are high whereas the second group of experts, relying on the figures set out in the decision, (
3
) have instead concluded that the percentage of those costs is relatively small in relation to variable costs.
13.
The construction of a new pulp mill requires very large capital investments and a long period for its completion. Pulp mills are installed in the vicinity of forestry resources.
14.
The decision emphasizes that between 1975 and 1981 the capacity utilization ratio and level of stocks differed widely not only betwen different countries but also between the producers of one country.
15.
The Finnish producers are members of Finncell, (
4
) an association founded in 1918 whose object is to sell in its own name the wood pulp manufactured by its members. Finncell fixes the export prices and divides orders amongst its members.
16.
During the period covered by the decision, all the United States applicants, (
5
) with the exception of Bowater, were members of the Pulp, Paper and Paperboard Export Association, commonly known as the ‘KEA’, corresponding to the initials of its former name (Kraft Export Association). It was established under the Webb Pomerené Act, a United States statute which permits the formation of associations for the promotion of exports without infringing United States antitrust legislation. The Act authorizes producers, in particular, to exchange information on the marketing of their products abroad and to agree on export prices.
17.
As a rule, a single producer supplies some 50 customers in the Community. Finncell is said to have the largest number of customers (290).
18.
The producers market the pulp in the Community through their subsidiaries, sales offices, branches or agents. Some agents represent several producers.
The customers
19.
In the first place, it should be noted that the price of the pulp accounts for approximately 50% to 70% of the cost of paper. According to the decision, the Community market is the most important market for bleached sulphate pulp and in 1981 it accounted for one-third of global sales. In the same year Community pulp production amounted to approximately 700000 tonnes, whilst total sales in the Community amounted to some 6 million tonnes. The main purchasers were Germany (approximately 2 million tonnes), France (approximately 1.3 million tonnes) and the United Kingdom (approximately 1.1 million tonnes).
20.
Bleached sulphate pulp is bought by more than 800 paper manufacturers operating in the Community. According to the figures given by some of the applicants, (
6
) which have not been contradicted by the Commission, in the mid 1970's just 17 purchasers accounted for 50% of pulp purchases and 41 of them accounted for 80%. Purchasers of pulp are often linked with pulp producers whose headquarters are located outside the Community.
21.
The majority of pulp sales are made on the basis of long-term supply contracts which are concluded for periods ranging from three to five years and frequently contain an automatic renewal clause (known as ‘evergreen renewal provisions’). Those contracts generally provide that the seller is to reserve a particular tonnage of pulp for the purchaser on a quarterly basis at a price which is not to exceed the price announced in the period prior to the commencement of the quarter. It is common ground that the customer does not necessarily purchase the entire quantity reserved for him.
22.
The pulp sold on the spot market accounts for a negligible proportion of consumption.
23.
In order to obtain the desired mixture and to ensure availability of supplies, purchasers place their orders with several producers, who may be located in different areas. Furthermore, purchasers of pulp linked to a producer are led to purchase certain types of pulp from other suppliers.
Announced prices and transaction prices
24.
According to a well-established practice, a few weeks or, at times, a few days before the beginning of a quarter the producers communicate the prices which they wish to obtain for the types of pulp marketed by them. Those prices, which include the cost of transportation to European ports, are generally fixed in different ways according to whether they are for deliveries to ports in North-West Europe (zone 1) or to Mediterranean ports (zone 2). Those announcements are made to the producers' customers, potential customers, agents and sales offices. For the entire period covered by the decision after 1976, those prices have been quoted in United States dollars by all the producers concerned. The prices are published forthwith in the specialist press.
25.
Announced prices are to be distinguished from transaction prices, that is to say the prices actually invoiced to customers. Transaction prices may be identical to announced prices or may differ (where rebates, payment concessions or other discounts are granted).
Trends on the pulp market
26.
The pulp market is largely dependent on demand for paper and board, which in turn is influenced by changes in the general economic situation.
27.
The table set out below (
7
) shows changing patterns of consumption and importation of bleached sulphate pulp in the Community.
TABLE 2
Consumption and importation of bleached sulphate pulp in the EEC
(1 000 tonnes)
Year
consumption
IMPORTATION
Total EEC
From Canada
% of Total
From the USA
% of Total
From Sweden
% of Total
From Finland
% of Total
1974
4571, 7
4767, 5
1394, 0
29, 24
644, 0
13, 51
1718, 6
36, 05
466, 8
9, 79
1975
3850, 8
3371, 6
971, 6
28, 82
587, 0
17, 41
1180, 1
35, 00
282, 7
8, 38
1976
4408, 8
4708, 0
1359, 2
28, 87
718, 8
15, 27
1568, 7
33, 32
393, 0
8, 35
1977
4439, 1
4636, 8
1395, 8
30, 10
696, 2
15, 01
1406, 3
30, 33
437, 4
9, 43
1978
6136, 0
5546, 7
1664, 7
30, 01
781, 9
14, 10
1523, 5
27, 47
669, 9
12, 08
1979
6540, 8
5929, 3
1565, 9
26, 41
934, 9
15, 77
1571, 2
26, 50
836, 3
14, 10
1980
6774, 0
6178, 8
1721, 3
27, 86
1090, 3
17, 65
1340, 3
21, 69
838, 8
13, 57
1981
6598, 5
6140, 9
1568, 6
25, 54
1085, 0
17, 67
1371, 0
22, 33
804, 8
13, 11
1982
6406, 5
5872, 9
1427, 8
24, 31
1127, 6
19, 20
1143, 5
19, 47
700, 3
11, 92
28.
The very strong demand for paper pulp in 1973 — when there were shortages — began to fall at the end of 1974 and slumped in 1975. During that year the capacity utilization ratios of the United States, Swedish and Finnish producers declined significantly. The same was true in the case of those Canadian producers whose production was affected by strikes. Still in 1975, the Swedish Government introduced a stock incentive scheme as a result of which Swedish producers' stocks grew to colossal proportions. In 1976 demand for pulp in the Community recovered to almost the 1974 level.
29.
During 1977 consumption stagnated (+0.7%) and there was a very slight decline in imports (-1.5%). In 1978 consumption and imports began to rise appreciably, a trend which continued throughout 1979 and peaked in 1980. In 1981 there was a slight fall in demand which continued into 1982.
30.
According to the decision, the trend with regard to announced prices on the Community market may be summarized as follows: 1975 (
8
) and 1976 were characterized by complete stability until the third quarter of 1977 (
9
) which witnessed the beginnings of a decline that became more pronounced in the following quarter and the first two quarters of 1978. That was when announced prices fell to their lowest level during the period covered by the decision. In the third quarter of 1978 announced prices recovered slightly, and rose steadily in the fourth quarter. Subsequently, in each of the following quarters until the second quarter of 1980, announced prices continued to increase. They then remained stable until a further increase in the third and fourth quarters of 1981, which, according to the Commission, was not ‘accepted’ in all the Member States.
31.
It should be pointed out at this juncture that the Commission considers that during the period in question the producers almost simultaneously announced similar prices for similar periods and invoiced identical transaction prices, a finding which, in its view, can be explained only by the existence of a concerted practice. However, the Commission states that in 1977 and 1978 transaction prices differed significantly from announced prices, since according to the decision, weak demand led to greater competitive pressure which made it impossible for the undertakings to charge unrealistic concerted prices.
32.
It should be noted that in April 1978 the Commission initiated an antidumping procedure concerning imports of pulp originating in Canada, the United States, Finland and Sweden, (
10
) which was terminated at the end of the same year. (
11
)
Procedure and decision
33.
In 1977, after carrying out investigations under Article 14 of Regulation No 17, (
12
) the Commission stated that it had discovered the existence in the wood pulp industry of a number of restrictive practices and agreements which had not been notified under Articles 4 and 5 of that regulation.
34.
On completion of those investigations, on 29 July 1981 the Commission commenced on its own initiative a proceeding under Article 3(1) of Regulation No 17 against 57 producers or associations established in the United States, Canada, Finland, Norway, Sweden, the United Kingdom, Spain and Portugal. On 4 September 1981 the Commission served its Statement of Objections on them. They were alleged to have participated in price fixing by way of concerted practices, in decisions by associations, in common organizations, in joint and common agency agreements, in agreements on sales conditions and in exchanges of information. I have deliberately confined myself to reproducing the terms of the letter accompanying the Statement of Objections since the contents and scope of the latter are the subject of dispute between the parties.
35.
The hearing of the producers was held by the Commission in March/April 1982. On 1 September 1982 the Commission requested the addressees of the Statement of Objections to provide additional information under Article 11 of Regulation No 17.Taking the view that it was necessary, in the light of the observations made by the producers in reply to the Statement of Objections and at the hearing, to update and complement the information relating to the facts on which the proceeding was based, (
13
) the Commission asked the producers, in particular, to submit for the period from 1974 to the second quarter of 1982 the invoices and documents concerning transaction prices that differed from announced prices. The producers accordingly forwarded over 100000 invoices to the Commission.
36.
During the first six months of 1982, the producers and the Commission entered into negotiations concerning an undertaking by the producers to change their conduct on the Community market, particularly as regards the choice of the currency in which prices were to be announced or invoiced and the period of validity of price announcements. The Commission's aim was to reduce what it describes as ‘artificial transparency of the market’ in order, still according to the defendant, to make concertation on prices more difficult between the producers. (
14
) That undertaking was initially intended to serve as a basis for an amicable settlement of the matter (as the Commission acknowledged at the hearing in reply to a specific question in that regard). The discussions continued into 1983 and 1984, raising difficulties concerning, it would seem, both the actual content of the undertaking and the fact that certain producers consistently refused to sign it, in particular because they rejected any charge that they were engaging in a concerted practice.
37.
At the beginning of December 1984 the Swedish and Finnish producers signed the undertaking in the terms desired by the Commission, which included ‘currency’ clauses that were rejected by the North American producers at the time. According to those producers, on 11 December 1984 the Commission advised them that an amicable settlement was out of the question unless they gave an undertaking identical to that signed by the Scandinavian producers, no later than the following morning. Some of those producers thereupon agreed to give the undertaking, but were allegedly informed on 12 December that on the previous evening it had been resolved to adopt a decision.
38.
On 15 December 1984 the press (
15
) named the producers concerned and gave details of the fines that would be imposed on them by a forthcoming Commission decision. In imposing those fines, the Commission was said to have taken into account the undertaking signed by the Swedish and Finnish producers with regard to their future conduct.
39.
On 18 December 1984 the North American applicants were informed by the Commission that it would not go back on its resolve to adopt a decision and that the normal procedure would be followed leading to the notification of the decision. (
16
) The producers were also given until 18.00 hours (Belgian time) on the same day to agree to an undertaking identical to that which had been agreed by the Swedish and Finnish producers in order to qualify for a reduction in the amount of the fines in the same proportion. That period seems to have been extended by few hours. All the applicants but three (Bowater, St Anne and International Pulp Sales) agreed to the undertaking and accordingly had their fines reduced by 90% in the decision which was adopted on 19 December 1984 in relation to 43 of the addressees of the Statement of Objections. (
17
) Fines of between ECU 50000 and ECU 500000 were imposed on 36 of those addressees. (
18
) Six addressees of the decision have their registered offices in Canada, eleven in the United States, twelve in Finland, eleven in Sweden, one in Norway, one in Portugal and one in Spain. The Norwegian, Portuguese and Spanish addressees, as well as four Swedish producers, two Finnish producers and a United States producer, were not fined.
40.
The Commission found that the addressees had committed a number of infringements. First, it was found that practically all of them had concerted on prices for bleached sulphate wood pulp announced for deliveries to the Community (
19
) during the whole or part — depending on the producer — of the period from 1975 to 1981, and on actual transaction prices for the same pulp charged on the markets of five Member States in the whole or part — depending on the producer — of 1975, 1976, and 1979 to 1981. (
20
) Secondly, the addressees who are members of KEA were found to have concerted on announced prices and on actual transaction prices for deliveries of pulp, and to have exchanged individualized data concerning prices for those deliveries. (
21
) Thirdly, certain addressees (Swedish producers, Finncell, other European producers and a Canadian producer) were found to have concerted on announced and transaction prices and to have exchanged within the framework of Fides (
22
) individualized data concerning prices for deliveries of bleached sulphate hardwood pulp to the Community from 1973 to 1977. (
23
) Finally, an infringement was established against some of the addressees of the decision inasmuch as they had applied, in contracts for the sale of wood pulp to customers in the Community, clauses prohibiting export or resale of wood pulp purchased by the latter. (
24
)
41.
The undertaking is annexed to the decision which specifies that the fines imposed on the producers who have signed it have been substantially reduced.
42.
So far as the decision is concerned, it is necessary to recall certain aspects of the Commission's findings regarding ‘general’ concertation on announced prices and transaction prices, which is referred to in Article 1(1) and (2) of the decision.
43.
The operative part of the decision does not specify precisely the producers between whom concertation took place. The producers mentioned therein are said to have engaged in a concerted practice in certain specified years. The Court asked the Commission to give details of its findings, which it did by producing lengthy tables that are set out in the addendum to the Report for the Hearing.
44.
It would appear that the ‘Commission concluded that concertation had taken place at least between those producers who announced (or sold at) a common price for a given product in a given area for a given quarter.’ (
25
)
45.
In that regard, the details of the Commission's findings relating to prices are set out in Tables 6 and 7 annexed to the decision.
46.
Table 6 gives the prices that were allegedly announced by the producers concerned for each quarter of the period covered by the decision.
47.
Table 7 gives the transaction prices. The version published in the Official Journal does not mention any names. Each producer was sent a copy of the decision in which Table 7 omitted the names of its competitors and gave only that producer's own prices. The Court had received during the written procedure the table setting forth the transaction prices of all the producers.
48.
In April 1985, 28 of the 43 addressees of the decision brought between them a series of ten actions for annulment. (
26
)
49.
In view of the fact that on 21 February 1989 The Mead Corporation (Case 114/85) withdrew from the proceedings and that, by judgment of 27 September 1988, the Court declared the decision void in so far as it related to KEA (Case 114/85), the number of applicants has been reduced to 26, namely one association (Finncell) and 25 producers. The Swedish producers did not bring proceedings.
50.
The applicants seek the annulment of the decision adopted by the Commission against them or, failing that, a reduction in the fines imposed. In addition, some of the applicants have asked the Court to annul or discharge them from the undertaking.
51.
It should be borne in mind that in its judgment of 27 September 1988 the Court rejected the submission alleging that the Community lacked jurisdiction in relation to producers, such as the applicants, established outside the Community, on the ground that the conduct which they are alleged to have engaged in took place within the common market.
52.
By order of 25 November 1988 the Court decided to obtain an expert's report relating essentially to an analysis of the documents concerning the announced prices and the transaction prices; on 16 March 1989, the Court appointed the firm of Moret and Limperg to draw up the report together with Mr Whitehouse.
53.
I refer to the Report for the Hearing for the questions formulated by the Court and the written conclusions of the experts, who were heard by the Court on 5 June 1990.
54.
The Court subsequently asked Mr Fishwick and Mr Cockram to prepare an expert's report designed, in particular, to describe and analyse the characteristics of the wood pulp market during the period covered by the decision and to give their opinion, in the light of those characteristics, on whether and for what reasons the natural operation of the wood pulp market should lead to a differential price structure or to a uniform price structure. I shall deal at some length with the experts' conclusions, which are set out in the addendum to the Report for the Hearing, in my analysis below.
55.
As a preliminary remark, let me point out that some applicants raised an objection under Article 91(1) of the Rules of Procedure at the same time as they instituted these proceedings. They have asked the Court, in substance, for an order restraining the Commission from using or invoking in these proceedings the invoices communicated to the latter after the producers were heard. According to those applicants, the Statement of Objections did not contain any allegation of an infringement involving concertation on transaction prices.
56.
In their view, the Commission based the findings in its decision relating to concertation on transaction prices exclusively on an analysis of the invoices forwarded by the addressees after they had been heard. During the administrative procedure they were denied access to those documents by the Commission. The latter cannot remedy that irregularity by giving the producers an opportunity to consult those documents before the Court. That is not the function of the Court, which would be obliged to consider complex facts and rule on matters which the Commission ought normally to have examined during the administrative procedure on the basis of the observations submitted by the producers. The defendant cannot therefore make use of that evidence before the Court.
57.
The Court has reserved for the final judgment the decision on that interlocutory application which the Commission considers inadmissible on the grounds that it constitutes in fact a submission on the substance of the case, and is, moreover, irrelevant, and not a procedural issue or an objection. Although I do not consider it essential to state my views in that regard, let me point out that the applicants' reasoning in connection with the interlocutory application is substantively identical to that relied upon in support of the main applications themselves inasmuch as the latter seek the annulment of the decision with regard to concertation on transaction prices on the ground that the rights of the defence have been infringed. I would therefore suggest that the Court begin by considering the applicants' submissions concerning the irregularities in the administrative procedure which relate to transaction prices.
58.
I shall examine in turn:
I.
Procedural submissions
II.
‘General’ concertation on announced prices
III.
Concertation within KEA
IV.
Concertation within Fides
V.
Export and resale bans
VI.
Effect on trade between Member States
VII.
The allegations of discrimination
VIII.
The undertaking
IX.
The fines
X.
Costs
I — Procedural submissions (
27
)
59.
All the applicants have criticized the procedure followed by the Commission in relying on complaints which, on examination, let it be said at once, reveal certain manifest irregularities affecting much of the contested decision.
60.
Before we examine those irregularities, it should be noted that Bowater has pointed out that the letter notifying the decision bears a date on which the signatory was no longer the Commissioner responsible for competition. The Commission explains that anomaly by the Secretariat General's heavy workload at the time, in particular as a result of the large number of decisions despatched at the end of 1984.
61.
It is scarcely satisfactory for the Court to be confronted with a document which was not signed on the date which it bears. However, that finding, which is only to be deplored, does not seem to me to have any effect on the validity of the decision itself. That, it seems to me, is the conclusion which must be drawn from the Court's case-law, according to which ‘irregularities in the procedure for notification of a decision are extraneous to that measure and cannot therefore invalidate it.’ (
28
) The Court undoubtedly takes the view, however, that such irregularities are capable of preventing the period for lodging an application from starting to run. But it cannot be disputed in this case that the applicants ‘had full knowledge of the text of the decision and... exercised [their] right to institute proceedings within the prescribed period’. (
29
) Accordingly, ‘the question of possible irregularities concerning notification ceases to be relevant’. (
30
)
62.
I shall examine in turn the irregularities alleged with regard to the existence of complaints embodied in the decision and not referred to in the Statement of Objections,
—
the use in the decision of evidence not communicated to the parties,
—
the refusal to organize a joint hearing of the parties,
—
the failure to consult the Advisory Committee on Restrictive Practices and Monopolies after some producers had agreed to the undertaking.
A — The decision embodies complaints which are not referred to in the Statement of Objections
(1) The Statement of Objections did not refer to concertation on transaction prices
63.
The applicants found to have concerted on transaction prices (
31
) (that is to say the prices actually charged) claim that the Statement of Objections was concerned exclusively with concertation on announced prices. In embodying in its decision a distinct infringement relating to concertation on transaction prices, therefore, the Commission failed to observe the rights of the defence guaranteed in Article 4 of Regulation No 99/63 and in Article 19 of Regulation No 17, which provides that the only complaints which may be taken into account are those on which the undertakings concerned have been given an opportunity to make their views known. According to the producers, it was only in October 1984, that is to say two months before the adoption of the decision, that the Commission informed them that it would also make a finding of infringement relating to concertation on transaction prices.
64.
The Commission counters those arguments primarily by reference to the wording of the Statement of Objections, which contains passages concerning concertation on both transaction prices and announced prices.
65.
Before considering the passages in question, there is a point I wish to make. The defendant is obliged to rely both on passages in the ‘facts’ part of the Statement of Objections and on passages in the part headed ‘applicability of Article 85(1) of the EEC Treaty’. In the absence of a formal operative part, I consider that at least the latter part of the Statement of Objections should specifyin detail the infringements with which the addressees are charged.
66.
In the light of those remarks, the fact that certain passages in the ‘facts’ part of the Statement of Objections refer to transaction prices (
32
) is, in my view, of only limited significance in determining whether concertation on those prices was envisaged.
67.
As for the part headed ‘applicability of Article 85(1) of the EEC Treaty’, it refers to ‘concerted price-fixing practices pursued inter alia through the system of price announcements’. (
33
) Even though the expression ‘inter alia’ is underlined in the body of the text, it would require a considerable effort of the imagination to regard it as a reference to concertation on transaction prices. In any event, it is very much an implicit reference, to say the least.
68.
Paragraph 54 et seq. of the Statement of Objections, in which the Commission analyses concerted price-fixing practices between the producers, call in question essentially the practice of price announcements and ‘other contacts between producers’. The only reference which may be relevant (
34
) in support of the Commission's contention is to be found in paragraph 66 which states that ‘the North American producers charged until 1978... the same price as the Scandinavian producers, except during the first half of 1977, when they granted rebates and increased their market share’. In any event, a reading of the Statement of Objections does not reveal any express and unequivocal reference to support the conclusion that a complaint was formulated regarding concertation on transaction prices.
69.
However, the Commission maintains in its rejoinder that it is clear from the replies of certain producers to the Statement of Objections or at the administrative hearing that they had understood that concertation on transaction prices was meant.
70.
I do not believe that the passages relied upon by the Commission in that regard conclusively bear out its argument. Admittedly, KEA itself considered that ‘the Statement of Objections is wrong in assuming that actual transaction prices did not fluctuate in accordance with the market’, and criticized that document, moreover, for stating that ‘actual transaction prices were the same as announced prices or so-called list prices’. It is also true that the Finnish applicants maintained that competition was extremely vigorous and had led to the fixing of widely differing transaction prices. Nevertheless, those assertions do not in any way establish beyond dispute that the Statement of Objections envisaged concertation on transaction prices. The argument that those prices differed from announced prices may constitute a defence to a charge of concertation on announced prices alone. Nor does the Commission gain more leverage by relying on passages in which, for instance, the Canadian producers state that ‘each of the Canadian respondents is charged with a concerted practice to fix price’ or Bowater denies participating ‘in any price fixing or price setting’. It would still be necessary to establish beyond doubt that the expression ‘to fix price’ covers concertation on transaction prices, and that is precisely what has to be proved.
71.
Admittedly, the Commission's view that to distinguish between announced prices and transaction prices is not tantamount to considering that two wholly distinct concerted practices are involved would not seem to be altogether illogical.
72.
However, is the uncertainty not the result primarily of the course of action taken by the Commission itself? In that regard, the decision found that concertation on prices charged and concertation on announced prices constituted two distinct infringements. Thus, for 1977 and 1978, no concertation on transaction prices was found whereas, for the same years, an infringement was established with regard to announced prices. In the decision, St Anne was found to have taken part only in concertation on announced prices, whilst other producers were alleged to have taken part in concertation on transaction prices alone. Furthermore, it is clear from the explanations of the Commission itself that the fines were determined by taking into account concertation on announced prices separately from concertation on transaction prices.
73.
It must be stated that in the decision the Commission did indeed take the view that there were two distinct infringements, whereas in the Statement of Objections there was no express charge concerning the complaint regarding concertation on transaction prices.
74.
There is a further consideration which tips the scales decisively in favour of the applicants' argument. In Annex VI to the Statement of Objections there is a table which in fact refers only to announced prices, as the Commission confirmed, moreover, at the hearing in reply to a specific question on that point. The Statement of Objections does not contain any annex comparable to Table 7 of the decision which sets out transaction prices. That difference between the Statement of Objections and the decision is in itself extremely revealing. Admittedly, the Commission maintains that in the Statement of Objections it had quoted the announced prices on the ground that those prices mostly corresponded to the transaction prices. (
35
) However, that argument runs counter to the Commission's line of reasoning. In support of its contention to the effect that concertation on transaction prices was envisaged in the Statement of Objections, the Commission points in particular to certain passages thereof which mention a difference for certain periods between announced prices and actual prices. (
36
) Annex VI to the Statement of Objections contains no mention of transaction prices for those periods. To accept that the Statement of Objections envisaged concertation on transaction prices, it would still have been necessary for the table in question to show, clearly at the very least, the periods in which, according to the Commission itself, they had differed from the announced prices.
75.
As the Court has declared, the purpose of the Statement of Objections ‘is to enable those concerned to put forward their arguments in the context of proceedings initiated against them’. To that end, it must be possible for the addressee actually‘to take cognizance of the objections held against him’. (
37
)
76.
That function of the Statement of Objections would be largely disregarded in this case if the Commission's view were to prevail. The Court considers that the Statement of Objections satisfies the requirements laid down in Article 4 of Regulation No 99/63 where ‘it sets out, summarily indeed but clearly, the principal facts upon which the Commission relies’. (
38
) That requirement of clarity, which the Court has consistently recalled and verified, (
39
) is quite obviously not complied with when laborious explanations are needed to discern in the Statement of Objections the existence of a specific charge. It is essential for complaints which are brought to the attention of an undertaking to be precisely formulated (
40
) in order to enable the latter to present a full defence. In areas characterized by the complexity of the facts, the volume of information and the consequences of the procedures in question, the Court cannot allow those requirements to be satisfied by stretching the terms of the Statement of Objections which, in this regard, does not in any case contain an expressly formulated charge regarding concertation on transaction prices.
77.
I would therefore propose that the Court hold that, by making a finding in its decision of an infringement regarding concertation on transaction prices which had not been clearly, precisely and expressly envisaged in the Statement of Objections, the Commission has failed to comply with its obligations under Article 4 of Regulation No 99/63 and Article 19 of Regulation No 17. That infringement should, in my view, lead to the annulment of Article 1(2) of the decision, as requested by the applicants concerned. In any event, my examination of the legality of the procedure in regard to the evidence on which the Commission relied in establishing concertation on transaction prices will lead to the same conclusion.
(2) Duration of concertation
78.
A number of applicants claim that the duration of the infringement as found in the decision was longer than the period referred to in the Statement of Objections.
(a) Duration of the infringement until the date of the Statement of Objections
79.
The decision establishes the existence of concertation until the date of the Statement of Objections, namely September 1981. Table 6 annexed to the decision shows the prices announced for the four quarters of 1981, whilst Table 7 shows the transaction prices for the first three quarters of that year.
80.
The Canadian applicants and Bowater claim that the Statement of Objections covered a period which did not go beyond the second quarter of 1980.
81.
The Commission maintains that the Statement of Objections covers the whole of the period from 1973 until the date of its notification, namely September 1981. The description of the market and the conduct of the addressees of the Statement of Objections, as well the assessment of that conduct, relate to the whole of that period. There is not a single passage in the Statement of Objections which confines to a shorter period the description of the facts relating to the involvement of each applicant in the infringements.
82.
Let me point out in the first place that although the table set out in Annex VI to the Statement of Objections goes no further than the second quarter of 1980, there is a note expressly stating that prices were the same for the third and fourth quarters of 1980. At the very least, therefore, 1980 was covered in its entirety. But what about 1981? In my view, having regard to the information provided by the aforesaid table, a clear reference was necessary specifying that the infringement continued after the end of 1980 since prices for 1981 were not set out in Annex VI to the Statement of Objections. In maintaining that the Statement of Objections was never confined to a period shorter than that ending in September 1981, the Commission is, it seems to me, inverting the terms of the issue. The absence from Annex VI of any reference to 1981 should logically have been such as to exclude that period from the duration of the infringement, unless the Commission expressly stated otherwise in the Statement of Objections itself.
83.
According to the defendant, however, the document ‘clearly’ calls in question the addressees' ongoing conduct.
84.
I must voice serious reservations in that regard. There is not a single passage in the Statement of Objections which the Commission can properly rely upon in support of that contention, with the exception of paragraph 21 which reads ‘the table in Annex VI shows the prices announced by the... producers from 1974 to 1981’. The Court will gauge the weight to be attached to that statement from the fact that the table in question does not in fact contain any reference to prices after 1980. Furthermore, that sentence immediately precedes a long passage describing price trends for wood pulp over the period from 1974 to 1980. Accordingly, the statement in question in no way corroborates the Commission's contention.
85.
The Commission also denies that it was raising a fresh issue by extending in its decision the duration of the infringement until the date of the Statement of Objections. The Commission simply found that the addressees of the decision had continued to engage in the same conduct until the date of notification, pointing out that the prices announced and charged between the third quarter of 1980 and the third quarter of 1981 were the same as those announced and charged during the second quarter of 1980. There is no rule of Community law which requires the Commission to use only the information at its disposal when it draws up the Statement of Objections. Furthermore, in submitting the invoices and documents relating to 1981 requested by the Commission in its letter of 1 September 1982 pursuant to Article 11 — covering, it should be borne in mind, the period from 1974 to 1982 — the applicants are said to have commented on the Commission's allegation that they had concerted on prices. The Commission's letter referred expressly to the Statement of Objections and to the administrative hearing, yet none of the applicants refused to submit invoices for the period after the second quarter of 1980 on the ground that that period was not covered by the Statement of Objections.
86.
Let me point out first of all that the letter of 1 September 1982 seeking ‘to update and complement the information on the facts on which the... proceeding is based’ cannot in any event be equated with a Statement of Objections. Moreover, it seems to me particularly dangerous to infer from the attitude of the applicants, who did not express any reservations with regard to the transmission of the documents in question, implied confirmation that the Statement of Objections covered 1981.
87.
As certain producers point out, they also submitted in their replies documents relating to the period subsequent to the Statement of Objections — third quarter of 1981/second quarter of 1982 — which, by definition, cannot have been covered by the Statement of Objections.
88.
Besides, in response to the Commission's argument to the effect that ultimately the applicants should be taken to have been aware that the period subsequent to 1980 was covered by the Statement of Objections on the ground that they did not refuse to submit documentation in respect of that period, the producers maintain that they were trying to be cooperative on the assumption that the information would be used, in particular, for comparative purposes.
89.
The Court has held that the duration of an infringement constitutes an ‘essential factor’ in the infringement, which the Commission must indicate ‘on the basis of the information available to it at the time when it formulates the Statement of Objections’, (
41
) although ‘the Commission may extend the period thus stated if supplementary information obtained during the administrative procedure so justifies, provided that the undertakings have had an opportunity to make their views known in that respect’. (
42
)
90.
In this case, by claiming the right to use information obtained during the administrative investigation, the Commission would thus seem to acknowledge that it was that investigation which yielded the information for the period subsequent to 1980. It was still necessary for the producers in question clearly to be given an opportunity to state their views in that regard, something which has not specifically been established in the Commission's observations to the Court.
91.
I would therefore propose that the Court uphold the application submitted by the applicants concerned so far as concerns 1981, unless it adopts a purely exegetic argument based on the covering letter accompanying the Statement of Objections, according to which ‘it is proposed to require the firms concerned to terminate such infringements’. (
43
)
(b) Duration of the infringement established for certain producers
92.
IPS claims that the Statement of Objections envisaged infringements by IPS only in the period from 1974 to 1978 (with the exception of the first quarter of 1977), whereas the decision concerning IPS covers the period from 1975 to 1981.
93.
In my view, that argument cannot be upheld. With regard to the period commencing in the third quarter of 1978, Annex VI to the Statement of Objections refers to the prices of ‘producers US’, and it is undisputed that IPS is a United States producer. Accordingly, the can to my mind be no denying the fact that IPS was alleged to have taken part in concertation on prices in the period subsequent to 1978. On the same grounds, the Court should reject the argument in which Bowater, also a United States company, denies that the Statement of Objections called in question its conduct for the period subsequent to the first quarter of 1978.
94.
On the other hand, the Court should uphold Bowater's arguments with regard to 1975. Annex VI to the Statement of Objections does not mention Bowater's prices for that year, although it does specify those of the other United States producers for the same period, who are designated by name.
95.
Bowater's absence from the list set out in Annex VI for 1975 is not disputed by the Commission. The Commission also acknowledges that it did not contradict Bowater when the latter stated, at the administrative hearing, as regards the period from 1975 to 1976, that it was not involved in a ‘process covering a period first of all where there is no complaint, or none against us separately’. The defendant considers, however, that a possible irregularity cannot lead to the annulment of the decision in that respect since, in view of the existence of convincing evidence for the period in question, it does not seem that the Commission's finding would have differed in substance if the complaints relating to 1975 had been couched in more specific terms in the Statement of Objections.
96.
In my view, that suggestion is unacceptable: Bowater's conduct in 1975 was not in any event referred to in the Statement of Objections, if it is borne in mind that Annex VI does not give any of Bowater's prices for that year. Moreover, that annex, as we have seen, relates to announced prices whilst Bowater was found only to have participated in concertation on transaction prices in 1975. The applicant pointed out at the administrative hearing that it did not consider its conduct for that period to have been called in question. Since the Commission acknowledges that it refrained from challenging it in any way at the time, there cannot be any justification now in maintaining that the procedural irregularity is ‘covered’, as it were, in view of the evidence against Bowater for the period in question.
97.
The Commission seems to be suggesting here that the Court should apply the doctrine of breach of essential procedural requirements.
98.
It is true that in its judgment in Distillers (
44
) the Court considered it unnecessary to examine the procedural irregularities alleged by the applicant, pointing out that ‘the position would be different only if in the absence of those irregularities the administrative proceedings could have led to a different result’. (
45
) But it is necessary to specify what irregularities were at issue in that case. They related, in particular, to the failure to notify to the Advisory Committee the minutes of the applicant's hearing and matter supplementing the applicant's answer to the Statement of Objections, and to notify the complaint in full. The Court held that those procedural defects could not in any event have affected the decision inasmuch as it refused to grant exemption under Article 85(3) on the ground that as the price terms had not been notified to the Commission, they could not in any event be examined with a view to exemption.
99.
The difference between the gravity of those irregularities and that of an infringement resulting from an impairment of the primary function of the Statement of Objections — namely to indicate precisely the complaints made against an undertaking in order to enable it to present its defence — is too obvious for there to be any need for me to draw attention to it here. Let me simply point out that the contention put forward by the defendant in these proceedings could ultimately lead to the formulation of complaints against an undertaking being deemed to serve no purpose if the Commission considered that sufficient evidence existed against that undertaking. That is precisely the consequence to which the Commission's position leads on the specific issue of the complaint that Bowater engaged in concertation in 1975, and I strongly advise the Court to reject it.
(3) Identity of the producers involved in the concerted practice
100.
IPS considers that the Statement of Objections envisaged only its involvement in a concerted practice with the Scandinavian producers; in the decision IPS is alleged to have concerted on announced prices during certain periods with the Canadian producers and with other United States producers. In addition, so far as transaction prices are concerned, IPS claims that in the decision it is charged with concerting on southern hardwood pulp with producers whom the applicant ‘assumes’ are from the United States.
101.
The Commission emphasizes that by calling in question ‘concerted practices between Scandinavian producers and North American producers’, the Statement of Objections also envisaged concertation within each of those two groups of producers. According to the defendant, if the Statement of Objections had called in question only concertation between Scandinavian producers on the one hand and North American producers on the other, the result would have been a type of concertation so extraordinary that it could have been described as fanciful. It would mean interpreting the Statement of Objections as covering a series of distinct concerted practices, each involving producers from two continents separated by thousands of kilometres, but never involving more than a single competitor from the same region, the same country or the same continent.
102.
It is necessary to ascertain, therefore, whether the words ‘concerted practices between Scandinavian producers and North American producers’ covered only concertation between those two groups of producers, without calling in question concertation between producers within each of those groups.
103.
In my view, the Commission's standpoint, outlined above, would seem to be appropriate. It clearly exposes the ‘unreasonable’ consequences of IPS's argument regarding the identity of the producers involved in the concertation established in the Statement of Objections. It is self-evident, however, that the words ‘concerted practices between Scandinavian producers and North American producers’ are not entirely free from ambiguity. But it is clear from the actual contents of the Statement of Objections, in my view, that both concertation between regional groups and concertation within those groups were meant.
104.
Thus the following passage is to be found, as the Commission rightly emphasizes, under the heading in question: ‘C. Concerted practices between Scandinavian producers and North American producers. The relevant documents (...) indicate the existence of direct contacts between the Canadian firm MacMillan and US producers Weyerhaeuser and Georgia Pacific. The contacts resulted in exchanges of information on KEA prices and on sales quantities’. That passage establishes beyond doubt that concertation within the group of North American producers was covered by the Statement of Objections. The Court should therefore reject IPS's arguments in that regard.
(4) St Anne's participation in Fides
105.
St Anne, a Canadian producer, claims that the Statement of Objections did not call in question its participation in Fides, whereas the decision established that the applicant had committed an infringement on that account.
106.
The Commission acknowledges that Annex VII to the Statement of Objections, which lists the members of Fides, does not mention St Anne, and that the references in other passages to concerted practices between ‘Scandinavian producers and European producers’ to describe such practices within Fides are ‘unfortunate’ since they do not envisage St Anne, a Canadian producer. However, in view, in particular, of the telex mentioned in the factual part of the Statement of Objections referring to St Anne, the defendant considers that it is for the Court to determine whether St Anne should have regarded the Statement of Objections as alleging its participation in concerted practices within Fides.
107.
Let me point out first of all that in its legal assessment the Statement of Objections does not refer to St. Anne in connection with concertation within Fides. Nor is that producer included on the list in Annex VII to the Statement of Objections headed ‘Principal Members of the Hardwood Pulp Section of Fides’.
108.
Next, the factual part of the Statement of Objections sets out the text of a telex from a third party reporting on a meeting in which various producers, including St Anne, exchanged information on prices. In my view, however, that reference cannot constitute a sufficient ground for alleging that St Anne was involved in concertation within Fides. Another undertaking mentioned in the same telex as having taken part in the same meeting, Celbi, was not one of the addressees of the Statement of Objections and has not been involved in these proceedings. Accordingly, if the reference to Celbi in that document did not result in the Commission addressing the Statement of Objections to that undertaking, I do not consider that the telex could in itself have sufficed to formulate a complaint against St Anne regarding participation in Fides.
109.
Furthermore, it is unacceptable, in my view, for the Commission to justify in this case the failure to formulate a complaint against St Anne on the ground, relied upon on in the defence, that ‘it would have taken too long to enumerate, each time, all producers involved’. It was necessary to specify clearly, at least once, that St Anne was alleged to have taken part in concertation within Fides. In addition, the Commission emphasizes that St Anne is not mentioned in Annex VII to the Statement of Objections because that list is not exhaustive and concerns only the principal members. That argument, it seems to me, leads to the opposite conclusion to that which the Commission purports to draw. If St Anne is not regarded in the Statement of Objections as a sufficiently ‘important’ member of Fides to be included as such in the list of producers annexed to the Statement of Objections, the only logical consequence which can be drawn therefrom is that no complaint was made against St Anne in that regard. The interpretation which the Commission apparently seeks to derive from the fact that the list is not exhaustive flouts the most elementary requirements regarding the precision and clarity with which complaints must be formulated. Failure to comply with those requirements, in connection with St Anne's participation in Fides, must entail the annulment by the Court of Article 1(4) of the operative part of the decision in so far as it affects St. Anne.
B — The evidence on which the decision is based
(1) Transaction prices
110.
To begin with, let me remind the Court that earlier I came to the conclusion that the Statement of Objections did not in any event set out the allegation of concertation on transaction prices clearly, precisely and expressly, and therefore in conformity with the requirements stemming from the rights of the defence.
111.
Next, in order to make it easier to follow the applicants' reasoning, it is necessary to recapitulate briefly the chronological sequence of events in the proceeding. After hearing the producers in March/April 1982, the Commission notified them on 1 September 1982 of its intention ‘to update and complement the information on the facts on which the above proceeding is based’. With that end in view, it requested them to forward the invoices and documents relating to the period from 1974 to 1982 in order to establish that the transaction prices differed from their announced prices, an argument put forward by the applicants at the administrative hearing. In response to that request, made under Article 11 of Regulation No 17, approximately 100000 invoices were forwarded to the Commission, as I pointed out earlier.
112.
The applicants found to have concerted on transaction prices dispute the legality of the procedure followed by the Commission. (
46
) They maintain that the Commission relied exclusively on a comparative analysis of the documents in question as a basis for the findings in its decision with regard to transaction prices. Accordingly, they consider that the rights of the defence have been infringed since the defendant allegedly failed to inform them before the adoption of the decision of the results of that analysis. As regards the invoices communicated by the other producers, they emphasize, relying on the case-law of the Court and, in particular, on its judgment in Hoffmann-Laroche, (
47
) that if the confidential nature of those documents precluded their being communicated to the applicants, the Commission was not entitled to use the documents against them. In any event, the defendant should have asked the producers, before adopting the decision, whether they had any objection to their invoices being forwarded to their competitors or to their competitors' lawyers.
113.
The Commission denies in the first place that it relied exclusively on documents produced after the administrative hearing. It points out that in the course of its investigations in 1977 it asked the producers concerned for representative invoices showing that the prices actually charged duly corresponded to the ‘announced’ prices. The invoices produced after the administrative hearing merely confirmed that those prices were the same. The Commission also points out that it relied exclusively on the documents submitted by each applicant for confirmation that the transaction prices of each did not generally differ from its announced prices. Where those prices were broadly the same as the transaction prices, it was unnecessary to draw any conclusions from a comparison with the documents of other producers which were inaccessible to the applicants. In its view, therefore, the applicants had in no way substantiated their allegations to the effect that the Commission had relied entirely on conclusions of that kind or exclusively on documents submitted after the hearing. It was not necessary for each producer to consult the other parties' invoices to assert that its transaction prices differed from its announced prices, since those invoices had played no part in the Commission's assessment of that producer's involvement in concertation on transaction prices.
114.
Finally, the defendant contends that it was under no obligation either to inform every applicant of the results of its analysis of the documents produced by the latter or to give every applicant an opportunity to submit its observations on the Commission's evaluation. Each producer was given an opportunity to state its views on the facts alleged and on the legal assessment of those facts set out in the Statement of Objections, and to defend itself. It did not have any right to be informed whether or not the Commission considered its defence persuasive, or to discuss the position taken by the Commission before a decision was adopted.
115.
Let us begin by considering the applicants' claim that the Commission based it findings regarding concertation on transaction prices exclusively on documents produced after the administrative hearing.
116.
It should be borne in mind that the Court asked the ‘accountancy’ experts whether the documents which were available to the Commission when it drew up the Statement of Objections had already enabled it to conclude that the transaction prices offered by the producers to customers were identical to the prices announced by them.
117.
The experts' answer to that question was that the documents in question were not sufficient to enable the Commission to conclude that the transaction prices offered by the producers to their customers were the same as their announced prices.
118.
In reaching that conclusion, the experts pointed out, on the basis of an analysis of the documents that were at the Commission's disposal when it drew up the Statement of Objections, that
—
there are only 199 invoices relating to 13 producers of which only 9 are ‘defendants’; for 28 of the ‘defendants’ there are no invoices on file;
—
the invoices cover only the years 1974 to 1978; for the years 1979 to 1981 there are no invoices on file;
—
the number of invoices selected as such is very small in relation to the total number, that is to say the total number of invoices for all the producers over the relevant period;
—
it is clear that the invoices have not been chosen at random, since 5 producers (
48
) account for 159 out of the total of 199 invoices selected.
119.
Those conclusions, which are amply reasoned, establish beyond doubt that at the date of the Statement of Objections, the Commission had no objective evidence whatsoever that the announced prices and the prices charged were the same for all the producers. Even on the assumption that the sample available to the Commission at the time showed that the announced prices were the same as the prices charged, those invoices related only to a very small number of producers and transactions. Accordingly, the documents relating to transaction prices which the Commission had on file at the date of the Statement of Objections did not by any means constitute objective evidence concerning transaction prices against the vast majority of the producers.
120.
Accordingly, the evidence on which the finding of concertation on transaction prices is based — namely the documents used to compile Tables 7 and 8 annexed to the decision — was obtained in the main after the administrative hearing. Furthermore, a reading of paragraph 25 of the decision would seem to dispel any doubts in that regard. (
49
)
121.
That finding thus raises the question whether the Commission was under an obligation to draw up a new Statement of Objections.
122.
According to the case-law of the Court, ‘the Commission must take into account the factors emerging from the administrative procedure in order... to supplement and redraft its arguments both in fact and in law in support of the objections which it maintains’ and ‘the decision is not necessarily required to be a replica of the Commission's notice of objections’. (
50
) The Court has also held that the Commission ‘has the right and where appropriate the duty to institute fresh inquiries during the administrative procedure if it appears from the course of that procedure that additional investigations are necessary’ (
51
) and that the Commission is not systematically obliged to draw up an additional Statement of Objections following those investigations. The Court has made it quite clear, however, that an additional Statement of Objections would be required if the result of the further inquiries led the Commission ‘to take new facts into account against the undertakings or to alter materially the evidence for the contested infringements’. (
52
)
123.
Let us pause to consider the reasons which seem to have led the Court to lay down that requirement. The Statement of Objections constitutes the ‘measures stating the final attitude of the Commission concerning undertakings’. (
53
) On the one hand, it informs undertakings of the conduct which constitutes an infringement of the rules of competition, that is the complaints against them. On the other hand, however, it also brings to their attention the principal evidence in the Commission's possession, that is the evidence on which they may be charged with one or more infringements. When there is a very considerable alteration in the evidence as a result of investigations carried out during the administrative procedure, the initial Statement of Objections can no longer correctly describe the basis on which the complaints are founded. In other words, the Commission is then required formally to approach the undertakings concerned, specifying the substantial alteration in the evidence henceforth at its disposal.
124.
That, in my view, is precisely the step which the Commission was required to take in this case if it had reached the conclusion that the 100000 or so invoices ‘confirmed’, in the Commission's contention, the existence of concertation on transaction prices.
125.
The most, elementary common sense shows that there had been, at the very least, a material alteration in the evidence of the infringements: it is sufficient to note that the Commission did not have at its disposal, by the date of the Statement of Objections, the information to compile Tables 7 and 8 annexed to the decision. In addition, the substantial administrative task — emphasized by the Commission itself — of analysing the invoices involved deepening and widening its investigations, which in themselves provided a very revealing picture of the substantial extension in the range of evidence of concertation on transaction prices.
126.
Applying the Court's case-law to this case, the Commission would have been required to draw up a new Statement of Objections after processing the 100000 or so invoices and credit notes. That Statement was all the more essential since, in my view, as I mentioned earlier, the actual complaint regarding concertation on transaction prices was not referred to in a manner consistent with the requirements stemming from the rights of the defence in the Statement of Objections of 4 September 1981. That is my first conclusion, which would therefore lead to acceptance of the contention that the Commission unlawfully based its finding of concertation on transaction prices largely on documents submitted after the administrative hearing, when it was required to issue a new Statement of Objections.
127.
However, I shall extend my investigation to two further questions:
—
Was the Commission under an obligation, before adopting the decision, to notify each producer of its conclusions concerning that producer's transaction prices, drawn on the basis of an analysis of the invoices submitted by the latter?
—
Was the Commission entitled to refuse to communicate to each producer the documents submitted by the other producers?
128.
It should be borne in mind, in the first place, that the Commission did not give each producer the opportunity, before the decision was adopted, to discuss the conclusions which it had reached concerning that producer's own invoices and credit notes. In that regard, a letter dated 12 November 1984 states as follows:
‘It was the respondents in their replies who alleged that although the announced prices were similar the transaction (applied) prices widely differed. In raising this defence and submitting relevant documents the respondents have therefore already commented on the finding of the Commission that their transaction (applied) prices were broadly identical. Each respondent had the opportunity “to make known its views on the truth and relevance” of the invoices, credit notes, etc. submitted by him’. (
54
)
129.
Let me state first of all that, as the Canadian applicants have righdy pointed out, the administrative hearing could not ex hypothesi relate to the conclusions reached by the Commission in its decision to the effect that transaction prices were identical since, as we have seen, it was essentially the invoices received subsequently which made it possible to substantiate that conclusion.
130.
Secondly, I fail to grasp the significance which the Commission attaches to the statement that the producers had the opportunity to make known their views on the correctness and relevance of the documents in question at the same time as they forwarded them. The crucial issue here is whether each producer was entitled to be notified before the adoption of the decision of the individual conclusions resulting from the Commission's analysis of the documents forwarded to it by that producer.
131.
In support of an affirmative answer, it should be borne in mind that the Court stated in its judgment in AEG that
‘it must be observed that the important point is not the documents as such but the conclusions which the Commission has drawn from them’ (
55
)
and excluded certain documents which emanated from the company in question itself but which it had been unable to react to before the adoption of the decision.
132.
However, the AEG case differed from the present cases in one respect. Here, the documents were submitted by the producers themselves to the Commission, whilst in that case it was not AEG which had communicated the documents in question to the Commission. AEG was not in a position to know that the documents would be used in the decision. In this case, on the other hand, the producers quite clearly could not rule out that possibility.
133.
It is plain from the Court's decision, however, that knowledge of the document ‘as such’ is not necessarily sufficient to ensure compliance with the rights of the defence. It is indisputable that in these proceedings, regard being had in particular to the volume of documentation and the need to assess the competitive nature of rebates or discounts, the conclusions drawn from the documents presupposed an in-depth and detailed analysis, as is borne out by the discussions before the Court with regard to the first expert's report.
134.
However, the producers were never given an opportunity to discuss the Commission's conclusions before the decision was taken, precisely because at the time of the administrative hearing the invoices in question were not in the defendant's possession. It is obvious, therefore, that they were found to have concerted on transaction prices even though they had not been given an opportunity to state their views on the Commission's analysis of their own invoices, on which the complaint was based. As for the importance of discussing conclusions drawn from documents which, I repeat, were produced after the Statement of Objections, it is sufficiently apparent from the fact that they make up the total contents of Tables 7 and 8 annexed to the decision, on which the finding of concertation on transaction prices is based. That, in my view, is a further ground on which the Court should annul the findings in the decision regarding concertation on transaction prices, if it adopts my opinion that it was necessary to communicate to each producer the conclusions from the study of the invoices submitted by that producer.
135.
Second question: Was the Commission entitled to refuse to communicate to the producers the invoices from the other producers before the adoption of its decision?
136.
The defendant's refusal is based on two considerations:
—
the need to protect business secrets: the invoices and documents submitted by most of the producers after the administrative hearing contained individual data on pricing policy which they regard as business secrets;
—
the view that communication of those invoices would not have been of any use in the producers' defence since each producer was merely required to demonstrate that the prices it charged differed from its announced prices.
137.
Let us consider the latter justification first. The Commission contends that a comparison between the producers' invoices was unnecessary. It was sufficient for it to establish that each producer's transaction prices did not as a rule differ from its announced prices. However, a reading of the decision reveals precisely findings as to the similarity or identical nature of the producers' transaction prices.
138.
Thus, in the following passage, the similarity between transaction prices is referred to in these terms: ‘The firms concerned allowed such discounts on very similar terms. They usually did not exceed 3% and never amounted to more than 7%’. (
56
) Moreover, the decision itself describes the conduct of two producers in certain periods as regards the prices charged in support of the view that it was possible to differentiate between the prices for bleached sulphate pulp. In the case of the first producer, Domtar, the decision states that ‘prices ranged according to customer from USD 420 to USD 565 per tonne for northern softwood, whereas the firms to which this decision is addressed were uniformly charging USD 545 per tonne’. (
57
) As for Bowater, its conduct is described in the following terms: ‘whereas, in the latter years, its transaction prices corresponded to both announced prices and transaction prices of its competitors, its transaction prices in the first two years generally differed widely from those of itscompetitors’. (
58
) Finally, is it not in fact the aim of Table 7 annexed to the decision precisely to draw attention to the identical nature of transaction prices and that of Table 8 to point up the similarity between the discounts or allowances granted? Nevertheless, no producer was able to consult the documents furnished by its competitors which enabled those tables to be drawn up. Contrary to the defendant's contention, the rights of the defence cannot be exercised in full except in so far as undertakings are able not only to ascertain whether the analyses of their own price structures are correct but also, and above all, to see for themselves whether their own prices are identical to those of their competitors. The Commission's position in this case irresistibly calls to mind those plans of prisons in which the warder alone is able to see all the inmates but they cannot see each other.
139.
Moreover, as regards transaction prices at any rate, the producers were never given an opportunity before the adoption of the decision to ascertain the precise identity of those of their competitors with whom they allegedly concerted on transaction prices over a given period.
140.
Therefore I cannot accept the Commission's argument that the invoices and credit notes of other competitors were unnecessary for the purposes of each individual producer's defence. I would also point out that the Commission itself, in a letter subsequent to the adoption of the decision, acknowledged that full access to the documents in question was ‘psychologically more satisfactory’. (
59
) In my view, such access is surely no less important from the point of view of the legal requirements.
141.
What course of action should the Commission have taken, however, in view of the fact that the documents in question were regarded as business secrets, and that as such they were confidential?
142.
In that regard, the Court has consistently stated that the Commission cannot ‘use to the detriment of the undertakings involved in a proceeding referred to in Regulation No 17, facts, circumstances or documents which it cannot in its view disclose if such a refusal of disclosure adversely affects that undertaking's opportunity to make known effectively its views on the truth or implications of those circumstances, on those documents or again on the conclusions drawn by the Commission from them’. (
60
)
143.
I have had occasion to discuss in some depth the difficulties raised by the need to reconcile observance of confidentiality and the rights of the defence in connection with antidumping proceedings; I pointed out, in particular, that:
‘If the European Commission of Human Rights declares inadmissible applications directed against national decisions enacted pursuant to a Community act, the main reason is that, through its successive judgments, the Court has established the principle that it reviews the Community institutions' observance of fundamental rights. It is therefore far from unimportant to avoid conspicuous discrepancies between the construction this Court puts on the right to a fair trial and the requirements already laid down by the European Court of Human Rights.
On this point there seems to be no doubt that the antidumping proceeding, although conducted by an administrative authority, must meet the needs of a “fair hearing”, which implies that an “equality of arms” must prevail between the parties. Furthermore, observance of the principle of hearing arguments from both sides demands that the party or his representative have the opportunity of consulting and criticizing the case documents, and in particular the evidence on which the decision was based’. (
61
)
144.
After recalling the fundamental character of the principle that the rights of the defence must be observed, the Court emphasized that:
‘Consequently, in performing their duty to provide information, the Community institutions must act with all due diligence by seeking, as the Court stated in its judgment of 20 March 1985 in Case 264/82, Timex Corporation v Council and Commission [1985] ECR 849, to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information. In any event, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury’. (
62
)
145.
In the light of those principles, (
63
) therefore, in establishing the existence of concertation on transaction prices on the basis of confidential documents, the Commission should either have specified the procedures for communicating the information necessary for the exercise of the rights of the defence or have refrained from using the invoices even though its findings are based on them.
146.
It is clear from the correspondence exchanged between the Commission and the applicants after the adoption of the decision that various solutions were examined by both sides in order to find ways of enabling the producers to consult the documents in question. I do not consider it necessary at this juncture to assess the merits and drawbacks of those solutions. Allow me simply to point out that the applicants have referred to the practice applied by the Commission in other competition cases for safeguarding business secrets whilst observing the rights of the defence. In any event, however, communication subsequent to the adoption of the decision is too late to satisfy the requirements stemming from those rights if the infringements found are based specifically on the documents at issue. As we have seen, the infringement involving concertation on transaction prices was established essentially on the basis of documents and invoices submitted after the administrative hearing.
147.
The Court has categorically stated that:
‘in order to respect the principle of the right to be heard the undertakings concerned must have been afforded the opportunity during the administrative procedure to make known their views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement’. (
64
)
Those requirements have manifestly not been observed in this case. That irregularity therefore affects the decision in so far as it establishes concertation on transaction prices, and it must once again lead to the annulment of that finding of infringement.
148.
The ‘status’ of the documents at issue in the proceedings before the Court remains to be defined, by way of reply, in particular, to the objection raised by certain applicants under Article 91 of the Rules of Procedure. In that regard, since I am proposing that the Court should annul the decision in so far as it concerns concertation on transaction prices, the issue concerning the use of invoices in support of that complaint becomes devoid of purpose. Furthermore, it seems reasonable to me for the Court to consider that the Commission cannot rely in these proceedings on the conclusions drawn from the documents submitted after the administrative hearing in support of its findings relating to announced prices, having regard to the procedural irregularities which I have detected.
(2) The documents relating to Fides
149.
Finncell claims that the Commission's findings regarding the former's participation in concertation within the framework of Fides are based on documents which were not communicated to it, in particular written and oral opinions from third parties, and on a memorandum of a meeting said to have taken place in Zurich on 31 March 1977. Those documents, which are set out in paragraphs 57 to 60 of the decision, were produced either in reply to the Statement of Objections (
65
) or at the administrative hearing, (
66
) or else were forwarded in response to a request for further information made by the Commission after that hearing. (
67
)
150.
The Commission does not deny that those documents were not brought to Finncell's attention, but it maintains that there were other documents set out in the Statement of Objections which in any event established Finncell's participation in the infringement in question.
151.
In my view, the information and the documents mentioned in paragraphs 57 to 60 of the decision cannot be relied upon against the applicant since it was unable to consult them before the adoption of the decision.
152.
It will be necessary, therefore, when the substance of the case comes to be considered, to verify whether this finding of infringement against Finncell is proven by the other evidence which is referred to in the decision and on which the applicant was properly given an opportunity to state its views.
C — The refusal to organize a joint administrative hearing
153.
All the applicants, with the exception of St. Anne and IPS, claim that the Commission infringed the rights of the defence by refusing to organize a joint hearing of the producers or, at the very least, joint hearings on a regional basis. According to the producers, such hearings were necessary because the Commission was charging them with engaging in a concerted practice. They therefore had to be acquainted with the statements made when the other parties were heard in order to organize their own individual defence. They conclude, therefore, that they should have been allowed to attend the hearings of the other producers. Moreover, the Commission might have made improper use of separate hearings by pitting some of the ‘codefendants’ against the others or by extracting confidential information. Accordingly, even though Article 9(3) of Regulation No 99/63, under which persons are to be heard separately, does not provide for a joint hearing, it should be interpreted as meaning that it is for the producers themselves to decide whether it is necessary to hold a joint hearing rather than separate hearings. Furthermore, the Commission allegedly failed to keep its promise to hear the producers subsequently on any new facts or arguments which might arise in a hearing of one or other of them. Finally, certain producers state that they did not receive a copy of the record of the hearing until the end of 1985, that is say two months after the adoption of the decision.
154.
In reply to those arguments, the Commission considers that it alone has the power to decide whether or not it is necessary to organize a joint hearing. In this case, it took the view that the producers had to be heard separately. It was foreseeable that the principal matters dealt with at such hearings would concern the pricing policy of the different producers and the production and sales position. Information of that kind is covered by business secrecy and cannot be divulged. Hence most of the producers themselves had emphasized that the hearings should be held separately. In any event, it was for each producer to state its views, so far as it was concerned, on the Commission's conclusions regarding its own price structure. There is no general right for each party to a proceeding to state its views on each and every argument put forward by the other parties to that proceeding in relation to their own competitive conduct. In any event, the reasons stated in the decision were not based on any information disclosed in a hearing of one of the producers which was used against other producers.
155.
In my view, the applicants' argument is unfounded. Even though it is not expressly provided for in Article 9(3) of Regulation No 99/63, it is for the Commission, the authority entrusted with responsibility for laying down the detailed rules of the administrative procedure, and not for the producers, to decide whether it is necessary to organize a joint hearing.
156.
However, those powers must be exercised subject to observance of the rights of the defence and, in support of its decision, the Commission may not therefore use information gathered at the hearing of one of the producers against another producer, without having shown the information to the latter first.
157.
It is by no means apparent from a reading of the contested decision that the Commission based its findings of concertation on information gathered at the hearings. (
68
) Moreover, the applicants have failed to demonstrate that the decision is based on information so obtained.
158.
The Court should therefore reject their arguments in that regard.
D — The failure to consult the Advisory Committee on Restrictive Practices and Monopolies
159.
According to Bowater, the Commission is guilty of an irregularity in failing to consult the Advisory Committee on Restrictive Practices and Monopolies after certain producers had given the undertaking — not signed by Bowater — thereby obtaining a 90% reduction in the amount of the fines imposed on them.
160.
Consultation of the Advisory Committee would have enabled the Commission to recognize the illogicality regarding the amount of the fine imposed on Bowater. Bowater emphasizes that it was never a member of KEA and is charged with taking part in a concerted practice for periods shorter than those established for many other producers, yet one of the two largest fines was imposed on it even though the Commission has acknowledged elsewhere that it had cooperated during the procedure. The Advisory Committee would undoubtedly have drawn the defendant's attention to that situation and the Commission would then have reduced the amount of the fine imposed on Bowater.
161.
The Commission points out that the fines were initially fixed on the basis of the opinion given by the Advisory Committee on 26 September 1984. It concedes that the Advisory Committee was not consulted again after the undertakings were agreed but before the adoption of the decision. However, it rejects Bowater's arguments regarding the consequences of the failure to consult the Committee again after certain producers had agreed to the undertaking. It considers that any illogicality could have been taken into account only with regard to the proposed reduction in the fine but could not have affected the basic amount of the fine imposed on Bowater.
162.
It does not seem to me that, so far as Bowater is concerned, the procedure is unlawful on account of the failure to consult the Advisory Committee. Since it did not agree to the undertaking, Bowater's own position remained quite unchanged compared to what it had been at the time of the Advisory Committee's initial opinion. Accordingly, so far as concerns Bowater, the Commission was entitled to adopt the decision on the basis of that opinion. The Court will not, in any event, have to consider whether it was necessary to consult the Advisory Committee again with regard to the reduction in the amount of the fines imposed on the other producers, since they have not raised the issue.
Conclusion
163.
It is clear from consideration of the allegations relating to procedural irregularities that the Court must uphold a number of the submissions put forward by the applicants, the foremost of which relates to the finding in the decision of concertation on transaction prices (Article 1(2)), which I strongly urge the Court to annul, as requested by the applicants. In view of the reasons tor my attitude and the extensive discussion called for by the examination of the present applications, I do not propose to consider the merits in that regard, not even on a subsidiary basis. (
69
)
II — ‘General’ concertation on announced prices
164.
It is necessary, in my view, to begin with a discussion of the concept of concerted practices. I do not share the defendant's view that ‘the case-law extracted from continental systems (referred to by certain applicants) merely serves to underline the proposition that the problem in cases of alleged concerted practices is one of proof rather than [of] definition’. (
70
)
165.
On the contrary, as MacMillan rightly points out, a satisfactory approach in examining the concerted practices alleged in this case presupposes that that concept is defined first, before the question whether the Commission has furnished proof of such infringement of competition rules is considered.
A — The concept of concerted practices (
71
)
166.
In prohibiting concerted practices, Article 85(1) of the EEC Treaty did not define that concept. (
72
) The Court has had the matter raised before it on numerous occasions (
73
) and has therefore been able to provide guidance of some value in a number of noted cases. However, I cannot dissemble the fact that there is still, in my view, some uncertainty regarding the definition of concerted practices. Quite clearly, it is necessary to proceed with caution in order to avoid general forms of words which are too constricting in areas in which the law is faced with changing and complex economic realities. Courts must not engage in academic theorizing. However, one is not succumbing to the temptation to theorize if one seeks to clarify certain concepts where the requirements of legal certainty are at stake. Traders must have a clear frame of reference to ascertain which practices are prohibited by competition rules. Besides, who would deny that the effectiveness of the law depends on its precision? Let us therefore now attempt to identify the elements which make up the concept of concerted practices.
167.
One point may already be considered established: a concerted practice is to be distinguished from a formal agreement between undertakings. In its judgments in Dyestuffs, the Court made it clear that
‘[although] Article 85 draws a distinction between the concept of “concerted practices” and that of “agreements between undertakings”... the object is to bring within the prohibition of that article a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, ... substitutes practical cooperation between them for the risks of competition’. (
74
)
A concerted practice ‘by its very nature, then, does not have all the elements of’ an agreement (
75
) and therefore constitutes a legal category ‘sui generis’, independent of the latter. In the words of one writer, that is an ‘initial delimitation of the concept of concerted practices: it presupposes a common intention which does not amount to an agreement’. (
76
)
168.
Far more delicate is the question which then arises; what is the substance of the concertation required between undertakings? In its judgment in Suiker Unie, the Court stated that
‘the criteria of coordination and cooperation..., which in no way require the working out of an actual plan, must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the Common Market’. (
77
)
The Court added that
‘this requirement of independence... however strictly preclude [s] any direct or indirect contact between... [competitors], the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market’. (
78
)
169.
Those indicators are very broad in scope. They cover every form and method of contact between undertakings. From that point of view, the Court has quite rightly drawn the conclusions from the informality that is implicit in the very concept of a concerted practice. Similarly, the Court has considered that contacts for the joint determination and fixing of future conduct are unnecessary, once again in accordance with the specific nature of that concept in relation to that of an agreement. However, certain commentators have taken the view that the Court had widened the concept of concerted practices by including unilateral action by undertakings not capable of constituting concertation which presupposes joint discussions or the exchange of views. (
79
)
170.
I doubt whether it is possible to restrict to those two specific situations the instances of prohibited concertation. The form of the contacts between undertakings matters little. On the other hand, it is clear to me that by definition concertation requires reciprocation of communications between competitors. (
80
) Article 85(1) cannot apply to unilateral action by undertakings. But that is what would happen if the requirement of reciprocal communications, (
81
) by whatever means, was not laid down. In its aforesaid case-law the Court does not seem to me to have laid sufficient emphasis on that requirement. There are, however, some indications in more recent judgments that seem to postulate such reciprocity.
171.
Thus, in its judgment in Zücbner, the Court stated that a national court
‘must consider whether between the banks conducting themselves in like manner there are contacts or, at least, exchanges of information’. (
82
)
Clearly, such reciprocity of communication between competitors is something that must be defined in each individual case. At this stage, therefore, it is apparent that concertation presupposes reciprocal communications between undertakings, whatever the form. That being so, what must their purpose be?
172.
As I have said, it is not necessary that by means of such communications competitors jointly determine their future conduct. It is apparent from some of the Court's decisions that it is necessary, though sufficient, that by virtue of their communications the competitors have removed the uncertainty as to their future market conduct. Thus, in its judgment in Dyestuffs, the Court stated that
‘it is contrary to the rules on competition contained in the Treaty for a producer to cooperate with his competitors, in any way whatsoever, in order to determine a coordinated course of action relating to a price increase and to ensure its success by prior elimination of all uncertainty as to each other's conduct regarding the essential elements of that action, such as the amount, subject-matter, date and place of the increases’. (
83
)
In its judgment in Ziichner, the Court referred to an identical requirement in connection with the exchange of information on
‘the rate of the charges actually imposed for comparable transfers which have been carried out or are planned for the future’. (
84
)
173.
In other words, concertation must at the very least give the participants an assurance as to the conduct to be expected of their competitors; each of them can foresee the future actions of the others.
174.
It follows from those observations that the concept of concerted practices refers to reciprocal communications between competitors with the aim of giving each other assurances as to their conduct on the market. As one writer has pointed out, (
85
) the definition proposed by the Commission in the Dyestuffs case synthesizes those elements perfectly:
‘it is enough that they (the competitors) let each other know beforehand what attitude they intended to adopt, so that each of them could regulate his conduct, safe in the knowledge that his competitors would act in a similar fashion’. (
86
)
175.
It is further necessary that the competitors' knowledge of each other's conduct stem from communications between them, and not simply from monitoring the market.
176.
In its case-law, the Court has been at pains to point out that
‘every producer is free to change his prices, taking into account in so doing the present or foreseeable conduct of his competitors’. (
87
)
It has also stated that
‘this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors’. (
88
)
The Court there therefore recognizes that each undertaking is entitled to align itself independendy on the conduct of its competitors, if knowledge of such conduct is obtained solely by monitoring the market.
177.
That is a vital factor having regard to the principles of economic theory. (
89
) Parallel conduct is not necessarily the result of prior concertation. It can be explained, or even dictated, by the very structure of certain markets. As a summary outline, let me refer to the two examples most frequently mentioned in that regard. The first situation involves a concentrated oligopoly, in which undertakings are interdependent: each undertaking must take account in its decisions of the conduct of its rivals. Alignment on each other's conduct constitutes a rational response, independently of any concertation. (
90
)‘Price leadership’ constitutes the second situation: undertakings align themselves on a ‘price leader’ on account of the latter's power on the market. Mention may also be made of spontaneous alignment on a price leader which acts as a barometer, with its decisions reflecting changes in market conditions for reasons linked, for instance, to its previous knowledge of that market. (
91
)
178.
In view of the findings made in the contested decision, two further sets of remarks are called for.
179.
In the first place, the question may arise whether in itself monitoring the conduct of competitors on the market falls in any event outside the scope of the rules of competition. What is the position where the decisions of each undertaking operating on the market immediately or very rapidly come to the knowledge of its competitors? In the 1970's the United States antitrust authorities instituted proceedings against conduct known as ‘price signalling’ (
92
) with a view to prohibiting in certain cases indirect ‘discussions’ in public between competitors or even public price announcements.
180.
In my view, the greatest caution must be exercised in calling in question the practices known as ‘price signalling’. To begin with, challenging public price announcements even when made in advance seems to me to call for very serious reservations. (
93
) It must be borne in mind that such announcements do meet quite legitimate and normal business requirements. Who would deny, in particular, that purchasers may in some cases need to know prices some time in advance so as to be able to determine their own costs and their own prices in order to notify those prices to their own customers? In a market economy, information which a producer communicates to his customers, whether actual or potential, is of fundamental importance. One writer has pointed to the ‘absurdity’ (
94
) of ignoring the fact that prices by nature have to be communicated.
181.
That, in my view, is the basic consideration which must be borne in mind in connection with ‘price signalling’. However, it would be irrational to deny as a matter of principle that concertation between competitors may take the form of exchanges of information which, whilst being public, are nonetheless reciprocal and are such as to remove any uncertainty regarding the conduct of rival undertakings. From that point of view, the difficulty clearly hes in eliciting the criteria for demarcating ‘permissible’ public price announcements from a public exchange of information which is open to criticism. In that regard, reference has been made to ‘complex, unusual and artificial’ (
95
) practices which, lacking any commercial justification, in fact establish a public dialogue between undertakings by giving mutual assurances as regards each other's conduct. (
96
)
182.
If it were possible to identify the reciprocal nature of the communications in quesion, I would see no reason not to treat them as an element of concertation just because it is exchanged publicly, when the same exchanges recorded in the minutes drawn up at the end of a meeting held behind closed doors would constitute a breach of the competition rules. Let me emphasize, however, that a situation of that kind is not connected in any way with ‘mere’ price announcements which are, in principle, unilateral acts on the market and cannot therefore by themselves constitute a concerted practice.
183.
It remains to be determined, and this is my second point, what is the scope of a finding of identical conduct on the market, that is to say parallel conduct, in relation to the concept of concerted practices.
184.
In other words, is similar conduct by undertakings included as an ‘objective’ element within the concept of concerted practices? Some of my predecessors have answered that question in the affirmative. (
97
) However, the view has also been taken (
98
) that it is wrong to include parallel conduct within the actual concept of concerted practices. It is in the field of evidence that parallelism of conduct should be situated: it may point to the existence of concertation if it cannot be explained other than by concertation.
185.
The first view may be supported by reference to the actual wording of the Treaty: Does the use of the term ‘practice’ not seem to refer to actual conduct on the market? However, attention must be drawn to the scheme of Article 85(1) which prohibits not only concerted practices having the effect of restricting competition but also those whose object is to achieve that result. If parallel conduct is included within the concept of concerted practices as an ‘objective criterion’, (
99
) how can the prohibition in Article 85(1) extend to types of concertation which, albeit not implemented, nevertheless pursued a restrictive object? Accordingly, to take the view that de facto identical conduct forms part of the concept of concerted practices would lead to a particularly restrictive conception of the Treaty, which is contrary to the scheme of Article 85(1).
186.
The major obstacle here was clearly identified by Advocate General Mayras when he pointed out that:
‘There can be no doubt that it would seem curious for a concerted practice which has not had any material effect on the competitive situation, despite the intention of the participants and because of circumstances beyond their control, to escape the application of Article 85’. (
100
)
Yet that is the conclusion which follows from the inclusion within the concept of concerted practices of de facto common conduct which was the view held by my predecessor. In order to overcome the resultant obstacle, he suggested that
‘in such a case merely to attempt or to initiate execution would be enough to justify the application of Article 85(1)’. (
101
)
Hence the need to have recourse to categories of criminal law, which are alien to the concepts of Community competition law, reveals in my view the impasse resulting from the inclusion of an ‘objective criterion’ derived from the parallelism of undertakings' conduct in the definition of a concerted practice.
187.
No doubt the ambiguity of the term ‘practice’ lies at the root of this discussion. I believe, however, that, in the light of the scheme of Article 85 the scope of the concept of concerted practices is quite clear: a concerted practice does not refer to identical conduct by undertakings. In fact, within that concept, in my view, the Treaty distinguishes between and contrasts de facto concertation or concertation in practice, on the one hand, and formal concertation resulting from an agreement, on the other. (
102
) Ultimately, the Treaty precludes cooperation amongst traders in whatever form: ‘Article 85 does not rule out uniformity of conduct but only certain ways by which it is achieved’. (
103
)
188.
I therefore share the view that ‘mere concomitant conduct does not constitute a concerted practice but may at best point, on the basis of further evidence, to the existence of an agreement between the parties concerned’. (
104
)
189.
No doubt, certain forms of words used by the Court in its case-law might lead to the assumption that the Court regards parallel conduct as constituting in itself an objective criterion for establishing a concerted practice. (
105
)
190.
In Dyestuffs, however, the Court seemed to consider, at least as regards only the principles which it laid down, that it was in connection with evidence that the scope of parallel conduct had to be assessed, stating that although such conduct
‘may not by itself be identified with a concerted practice, it may however amount to strong evidence of such a practice if it leads to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings, and the volume of the said market’. (
106
)
191.
In any event, it must be emphasized that parallel conduct does not in itself (
107
) constitute proof of a concerted practice. From parallel conduct it is possible to deduce evidence of concertation where it cannot have arisen as a result of individual and rational decisions taken by the undertakings concerned having regard to the characteristics of the market in question. (
108
)
192.
Those principles, it may be worth noting, are ultimately no different from the solutions which seem to emerge from the development of United States case-law. Although the exceptional wealth of that case-law precludes a detailed exposition of it here, (
109
) I should like to draw attention to one crucial stage in its development. In 1948, relying it would seem on certain dicta of the Supreme Court, (
110
) the Federal Trade Commission expounded the view that where several undertakings engage in identical conduct in the knowledge that they are all acting in the same manner, there is an ‘agreement’ between them. In other words, the infringement of antitrust legislation was established by the mere fact of ‘conscious’ parallel conduct.
193.
The Supreme Court unequivocally rejected that analysis in the following terms:
‘To be sure, business behavior is admissible circumstantial evidence from which the fact finder may infer agreement... But this court has never held that proof of parallel business behavior conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offense. Circumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional judicial attitude towards conspiracy, but “conscious parallelism” has not yet read conspiracy out of the Sherman Act entirely’. (
111
)
194.
Whilst reaffirming (
112
) the possibility of establishing a ‘conspiracy’ on the basis of circumstantial evidence, the Supreme Court quite clearly refuses to regard parallel conduct in itself as proof of an infringement of antitrust legislation. The probative value of parallel conduct falls to be determined in each individual case by a specific assessment.
‘“Conscious parallelism” is not a blanket equivalent of conspiracy. Its probative value in establishing the ultimate fact of conspiracy will vary case by case. Proof of agreement, express or implied, is still indispensable to the establishment of a conspiracy under the antitrust law.’ (
113
)
So far as concerns Article 85 of the EEC Treaty, parallel conduct cannot be equated with a concerted practice either. On the other hand, however, such conduct may serve as evidence of concertation.
195.
In that regard, since recourse to indirect forms of evidence is involved, (
114
) caution (
115
) must be exercised in establishing the existence of a concerted practice. According to the Court's case-law, the evidence must be ‘sufficiently precise and coherent... to justify the view that the parallel behaviour... was the result of concerted action’. (
116
) In other words, it is necessary to establish a degree of certainty that goes beyond any reasonable doubt. In accordance with the principles governing the burden of proof, it is for the Commission to demonstrate that: the burden of proof cannot be shifted simply by a finding of parallel conduct. Unless the court can be satisfied by a set of presumptions having a solid basis, concertation is not established. In any event, if there is a plausible explanation for the conduct found to exist which is consistent with an independent choice by the undertakings concerned, concertation remains unproven.
196.
That is the principle which can be elicited from the Court's judgment in CRAM and Rheinzink. (
117
) The Commission had established the existence of a concerted practice by those two undertakings which had interrupted in quick succession their deliveries to a single producer who had re-exported the products concerned to the German market, contrary to the terms of the contracts of sale concluded with the suppliers concerned. CRAM and Rheinzink explained the reasons which allegedly prompted each of them individually to interrupt its deliveries and the Court held that
‘it is sufficient for the applicants to prove circumstances which cast the facts established by the Commission in a different light and which thus allow another explanation of the facts to be substituted for the one adopted by the contested decision’. (
118
)
197.
Of course, the existence of direct evidence of concertation may be conclusive by itself and, in circumstances in which it is sufficient, it may even render devoid of purpose recourse to indicia drawn from parallel conduct. (
119
) In this case, however, the Commission treats the analysis based on parallel prices as primary evidence, since the documents referred to in the decision play a secondary role, merely providing, as the defendant puts it, ‘independent support’.
198.
The foregoing observations were designed to pave the way for the examination of the facts of the case.
B — Evidence of a concerted practice on announced prices for wood pulp
199.
It must be borne in mind from the outset that, according to the grounds stated in the decision, concertation took place either between all the addressees of the decision, or between addressees located in the same country or the same continent, or between individual addressees. (
120
) I have already stated that since there is no express reference to this point in the operative part, the Court has been obliged to ask the defendant to specify its exact findings of concertation. On the basis of the lists communicated by the Commission, its approach can be summarized as follows: the Commission has concluded that a producer participated in concertation where he announced (or charged) a price identical to that of some of his competitors for a given product in a given area and for a given quarter. That is why the concertation which the Commission regards as established seems to be something of a ‘floating’ phenomenon. The Commission states, moreover, in its rejoinder, that the question is not whether intermittent participation in a concerted practice falls within the scope of Article 85(1), which it clearly does, but whether intermittent parallel conduct by undertakings constitutes sufficient evidence of concertation. The Court must therefore bear in mind that the fact that a given producer announced a price identical to that of his competitors constitutes the primary evidence on the basis of which his participation in concertation has been established in the decision.
200.
Further, I wish to express certain doubts regarding the connection between the findings of ‘general’ concertation on announced prices (Article 1(1) of the decision) (
121
) and those set out in Article 1(3) and (4). In paragraph 109 of the decision, the Commission considers that the exchange of information between certain United States producers within the framework of KEA and between producers of hardwood pulp within the framework of Fides was not only part of the concertation on prices but also constituted independent infringements of Article 85(1). That analysis prompts a number of observations.
201.
In the first place, the Court will find that the principle of non bis in idem seems to be disregarded as regards concertation between the producers who are members of KEA. Article 1(3) of the decision charges them with concerting on announced prices and transaction prices for bleached sulphate wood pulp within the framework of KEA without specifying, however, the period when such concertation took place. In paragraph 35 of the decision, however, the Commission points out that for most of the period from 1975 to 1981 the prices announced by the members of KEA were identical, as were those announced prices and the transaction prices of those producers for part of that period. If reference is made to the lists submitted to the Court by the defendant in describing its findings of ‘general concertation’ in Article 1(1) and (2) of the decision, on the other hand, the Court will find that concertation amongst members of KEA also seems to be at issue in that regard. In other words, concertation on prices between KEA producers seems to have been envisaged twice.
202.
Is there any need to emphasize that self-evidently the same facts cannot in any event lead to the same infringement being established twice over?
203.
With regard to Article 1(4) of the decision, the English version, which alone is authentic, states as follows: ‘Addressees 4, 29, 34, 36 and 40 to 43 by concerting on announced and actual transaction prices and exchanging within the framework of Fides individualized data concerning prices for deliveries of bleached sulphate hardwood pulp to the European Economic Community from 1973 to 1977’. There is already an ambiguity, to which I shall return, as to whether only concertation within Fides is meant in that section of the operative part. Even if that is the case, however, does not such concertation overlap, at least in part, in the case of the producers concerned, with some of the findings in Article 1(1) and (2) of the operative part?
204.
In the light of those observations, I now turn to the parties' arguments. The Court will recall that the defendant's position, as is apparent from the decision and from the further information provided at the Court's request, is as follows: evidence of general concertation on prices stems primarily from the producers' parallel behaviour which can be explained only by a concerted practice between them (1). That evidence is corroborated by various kinds of exchanges of information, which are mentioned in the decision (2).
(1) Parallel conduct of the producers
205.
Paragraph 83 of the decision calls in question both similar price announcements for similar periods, at short intervals or even simultaneously, and identical transaction prices in support of the rinding that parallel conduct of that kind can be explained only by a concerted practice on the part of the addressees. Let me point out first of all that under this heading I propose to consider only those aspects of the decision relating to concertation on announced prices. I therefore propose to ‘isolate’ parallel conduct relating to those prices.
206.
I shall tackle the question as follows: first, I shall set out my position on actual parallelism of announced prices (1.1). I shall go onto deal with the aspects of the system of price announcements (1.2). I shall then attempt to determine what guidance can be elicited from the discussion concerning the economic analysis of parallel prices in the light of the expert's report commissioned by the Court (1.3). Finally, I shall explain why, in my view, the contested decision is in any event seriously defective as regards the provision of an individual statement of reasons for the infringements which each addressee of the decision was found to have committed (1.4).
1.1. Parallelism of announced prices
207.
The Commission sets out its findings on parallelism of announced prices in paragraph 22 of its decision, stating that the addressees of the decision announced the same prices for northwest Europe (zone 1) and almost the same prices for southern Europe (zone 2) for the following periods:
—
from the first quarter of 1975 to the third quarter of 1977 and from the first quarter of 1978 to the third quarter of 1981 (the Canadian and United States producers);
—
from the first quarter of 1975 to the second quarter of 1977 and from the third quarter of 1978 to the third quarter of 1981 (the Swedish and Finnish producers);
—
from the first quarter of 1976 to the second quarter of 1977 and from the third quarter of 1979 to the third quarter of 1981 (all the producers).
208.
However, those findings are qualified significantly by three footnotes to the paragraph in question. The first footnote states that ‘in the second quarter of 1979 and in the second quarter of 1980 the uniform prices quoted by the Canadian firms were USD 5 higher than the uniform prices quoted by the US firms. In the third quarter of 1979 the difference was USD 10’. That footnote is, however, contradicted by Table 6: in the second quarter of 1979, the prices announced by the Canadian producers are not USD 5 higher than the prices of the United States producers but lower (softwood, zone 1). Even if they do not substantially affect the Commission's findings, such errors can but be deplored.
209.
According to the second footnote, ‘in the first quarter of 1975 the prices announced by Finncell were the same as those announced by the American firms. From the second to the fourth quarter of 1975 Finncell announced an alternative price of USD 450’. (
122
) However, it is appropriate to supplement that footnote by reference to paragraph 112 of the decision which states that Finncell ‘in the last three quarters of 1975 announced a price in US dollars and in Swedish kronor, the dollar price being at times higher and at times lower than that announced by Swedish suppliers in Swedish kronor...’. (
123
) That reference thus qualifies significantly the Commission's general statement in the second indent of paragraph 22 that from the first quarter of 1975 to the second quarter of 1977 the prices announced by the Swedish and Finnish producers were the same.
210.
The third and final footnote to paragraph 22 reads as follows: ‘In the third quarter of 1979 and in the second quarter of 1980 only the prices announced by the Canadian and European firms were the same. The US firms uniformly quoted prices that were respectively USD 10 and 5 (i. e. 1 to 2%) lower’, which, moreover, is borne out by the figures in Table 6.
211.
A detailed study of that table reveals, however, that many other footnotes would have been necessary in order to give an accurate reflection of the data set out therein. For example, again as regards the fourth quarter of 1979, the prices announced by the Canadian producers are USD 10 lower than the prices quoted by the Swedish and Finnish producers (softwood, zone 1). The same applies for the first quarter of 1980. In addition, from the second quarter of 1980 to the second quarter of 1981, the prices announced by the United States producers are USD 5 lower than the prices announced by the other producers for northern softwood (zone 1). In the third quarter of 1981, the difference between the Canadian prices and the Swedish and Finnish prices was USD 45 (zone 1, softwood), as is clear from Table 6. Accordingly, the Commission's assertion in the third indent of paragraph 22 of its decision that prices were absolutely identical from the third quarter of 1979 to the third quarter of 1981 by no means tallies exactly with its own findings.
212.
Therefore, while both the existence of the footnotes, which are moreover incomplete or inaccurate, and the analysis of Table 6 annexed to the decision, show a ‘single’ parallelism between all the producers for certain periods (particularly from the first quarter of 1976 to the third quarter of 1977 for softwood, zone 1), for other periods they reveal a number of price parallelisms whose pattern may be described as ‘complex’.
213.
The Commission has informed the Court that the primary evidence of a given producer's participation in concertation stems from the finding that he announced a price identical to that of one or more competitors in a given quarter. That approach therefore explains the statement in paragraph 81 of the decision that ‘this concertation took place either between all addressees of this decision, or between addressees located in the same country or the same continent [or] between individual addressees’. Let me point out at this juncture, however, that the operative part of the decision does not contain any indication of the precise methods of such concertation.
214.
I shall shortly consider the arguments of some of the applicants who challenge, for their part, the findings in Table 6. I must point out beforehand that both the first expert's report and the explanations given by the experts when they were heard by the Court on 5 June 1990 confirm, with one exception, the existence of parallelism as described by the Commission in that table (
124
) annexed to its decision; that exception stems, as stated on page 21 of the expert's report, from the fact that the information relating to the prices announced for the beginning and the middle of 1978 seems to be missing. In reply to a written question from the Court, the experts stated that there was no information regarding announced prices at the beginning of 1978 and in the summer of that year in the Commission's documentation.
215.
Apart from that qualification, the experts confirmed at the said hearing that they supported the conclusion, set out in paragraph 22 of the decision, which the Commission draws from the information in Table 6 regarding the existence of ‘parallelism’, the configuration of which, as we have seen, is variable.
216.
The Commission's findings regarding the existence of such ‘parallelism’ are not fundamentally called in question by the omissions and inaccuracies in Table 6 which were revealed during the written procedure as a result of the objections raised by certain applicants. Nevertheless, the evidence for the prices announced by certain individual producers for certain periods gives rise to serious misgivings.
217.
For instance, the members of Finncell claim that the Commission's investigation concerning Finncell's announced prices related only to the period from 1974 to 1977. The prices set out in Table 6 for the period after 1977 were obtained simply by imputing to the members of Finncell the prices established for the Swedish undertakings.
218.
The answer given by the first experts to a written question from the Court on that point is quite clear: the Commission's documentation did not contain any invoice or telex concerning the prices announced by the members of Finncell for the period after 1977.
219.
Accordingly, one can but surmise on what basis the Commission determined the prices announced by the members of Finncell for the latter period. The Commission, in its rejoinder, refers to the accounting documents, without further details, forwarded by the members of Finncell in response to the Commission's request under Article 11 of Regulation No 17, dated 1 September 1982, and to the telex messages listed in paragraph 61 et seq. of the decision.
220.
It is apparent on reading the aforesaid paragraphs of the decision that those telex messages all relate to the period prior to 1978. As for the Commission's request for information of 1 September 1982, it relates essentially to the prices charged, even though clarification is sought on any differences between those prices and the announced prices.
221.
It is worth noting, however, that whilst for the last three quarters of 1977 the members of Finncell relied on Table 6, which shows prices different from those of the other producers, the Commission has produced, in an annex to its defence, telex messages from Finncell showing that the figures in that table were the result of a ‘misunderstanding’ and that the members of Finncell had in fact announced the same prices as their competitors in respect of that period.
222.
It would have been helpful if, for the period subsequent to 1977, the Commission had likewise produced the documents on which it relied in determining the prices announced by Finncell. The figures in Table 6 are not in themselves sacrosanct; they merely serve as an indication. Since they are disputed by the applicants, it is for the Commission to produce before the Court the documents on which they are purportedly based, in order to demonstrate the accuracy of its previous findings.
223.
The Commission explains, in the general part of its defence, (
125
) which comprehensively rejects the arguments put forward by all the applicants, that it relied, in gathering the data recorded in Table 6, partly on telexes and other documents submitted to it during the investigation under Article 14 of Regulation No 17, partly on information given by the addressees of the decision in their replies to the Statement of Objections, and partly on articles published in Pulp and Paper International (PPI) and in PPI Newswire, and that as regards the first two sources the applicants had an opportunity to make their views known. According to the Commission, the information from the trade press was used only to rebut the applicants' argument that they had not announced prices for a given period. Hence the Commission would seem to acknowledge by implication that the last-mentioned information was not communicated to the applicants during the administrative procedure.
224.
It must be stated that, even though the information from the trade press served merely to rebut the argument based on the absence of price announcements, the use of such information nevertheless constitutes part of the evidence on which the Commission relied in support of its standpoint. It seems, moreover, that such information was also used to determine the announced prices, as is clear from the words ‘with effect from 3rd quarter 1978, the prices given have been taken from PPI’ in Annex VI to the Statement of Objections, at page 20, (
126
) and from the experts' reply to the written question from the Court, to the effect that the Commission did not have any telexes in respect of the prices announced by Finncell after 1977.
225.
That is borne out by the fact that whilst the defence to the action brought by the members of Finncell is silent in that regard, there is an annex to the defence to the action brought by the members of KEA containing six passages from trade journals which refer in places to the changes in Finncell's announced prices. It is possible, on the basis of an analysis of those passages in particular to verify the accuracy of Table 6 so far as concerns the prices announced by Finncell for the first and second quarters of 1980 and the third quarter of 1981. But what about the other periods? It would certainly have been of value for the Court to be able to carry out the same verification. It must be noted that, in any event, the information relied on by the Commission in establishing the prices announced by Finncell after 1977, which does indeed seem to be from the trade press, has not been communicated to the Court. Accordingly, there remain serious doubts regarding the relevant data in Table 6.
226.
Other shortcomings in the decision as to the evidence for the prices announced by certain applicants have been acknowledged by the Commission. Thus, so far as concerns Bowater, the defendant conceded that after rechecking the documentation, it was unable to trace any written evidence for the finding in Table 6 that in 1977 Bowater announced a price of USD 415. (
127
) Moreover — a point to which I shall return — the Commission was unable to contradict Bowater's statement concerning the dates of its price announcements for several quarters in the period from 1979 to 1981, which do not correspond to those cited in Table 6. Admittedly, it is conceivable that, having gathered its information from the trade press, the Commission found itself confronted with imprecise details concerning the date on which a given producer or group of producers intended to announce a price which, for its part, is recorded correctly. (
128
) The fact remains that given the failure to produce any documents whatsoever, including mere extracts from trade journals, doubts persist — yet again — with regard to the information on which the Commission relied in determining the prices announced by that producer for the period from 1979 to 1981.
227.
It would have been helpful, moreover, if the Commission had replied to Weldwood of Canada's allegation — which, in my view, is well documented — to the effect that the price of USD 415 for the first quarter of 1975, which is set out in Table 6, is incorrect. In its application, Weldwood claims to have demonstrated during the administrative procedure, in particular by producing the relevant letters and telexes, that the price of USD 425 was maintained throughout the first and second quarters of 1975. The Statement of Objections refers, moreover, for the first quarter of 1975, to a price of USD 425 in so far as concerns Weldwood. That must no doubt be a clerical error in the decision.
228.
Although the members of KEA do not formally challenge the figures set out in Table 6, they call in question the very existence of parallel prices in so far as they are concerned for the period from 1978 to 1981.
229.
It must be borne in mind that the concerted practice which should be at issue here is that allegedly established between the members of KEA and the other producers — in particular Canadian or European producers — not forming part of that association, since concertation on announced prices within the framework of KEA constitutes a separate infringement which is referred to in Article 1(3) of the decision. However, it is apparent on reading Table 6 that there is practically no quarter when the prices announced by the members of KEA differed from those announced by all the other producers. Thus, although after 1979 the prices announced by the members of KEA frequendy differ by USD 5 or 10 from those announced by the other European and Canadian producers (for instance, for softwood, zone 1: in the second quarter of 1979, USD 425 for the members of KEA, USD 420 for the Canadian producers and USD 435 for the Scandinavian producers; in the third quarter of 1979, USD 425 for the members of KEA and USD 435 for the Canadian and Scandinavian producers; in the fourth quarter of 1979, where the price of only one member of KEA is mentioned, it is USD 5 lower than the Canadian price and USD 15 lower than that of the Scandinavian producers; see also the second and third quarters of 1980), in respect of the same periods the members of KEA generally quote the same prices as those which Table 6 ascribes to Bowater, (
129
) a United States producer not forming part of that association (for instance, in the second and third quarters of 1979, USD 410 for southern softwood, zone 1, and USD 425 for zone 2; the same holds true for the second and third quarters of 1980: USD 530 for southern softwood, zone 1).
230.
The applicants' reasoning with regard to the difference between their announced prices and those announced by the Scandinavian or Canadian producers tallies with my previous findings that, for certain periods, the parallelism outlined by the Commission in Table 6 covers several parallelisms having variable configurations, according to the quarters in question.
231.
The members of KEA point out, moreover, that they have absolutely no idea where the Commission obtained its information and that, in any event, such information was not communicated to them during the administrative procedure.
232.
On those two points, the Commission explained in the general part of its defence, (
130
) as I said earlier, that it relied, in compiling Table 6, on telexes and other documents communicated during its investigations, on information given by the producers in their replies to the Statement of Objections, and finally on information from the trade press which, let me repeat, was used, according to the Commission, only to rebut the argument based on the absence of price announcements.
233.
In their reply, the members of KEA do not seem specifically to repeat their criticisms of the Commission's failure to communicate the information which enabled the amount of their announced prices to be determined. In any event, since they do not actually challenge the announced prices set out in Table 6, the arguments adduced here would scarcely seem to apply so far as concerns proof of the existence of parallel prices.
234.
Without calling in question the data in Table 6, St. Anne points out that in fact the prices referred to in that table show that, for the third and fourth quarters of 1976, it announced a price appreciably lower than that of its competitors (USD 395 for hardwood, zone 1, when the members of KEA were announcing a price of USD 405, and the Finnish and Swedish producers a price of USD 410). The Commission replies that, on the other hand, for zone 2 (Mediterranean ports), St. Anne announced the same prices as the United States producers, although it acknowledges that St. Anne's sales in Italy accounted for no more than 5.5% of Community imports in 1976. That fall in St. Anne's sales in the southern zone should, moreover, have led it, according to the Commission, to lower its prices for that zone.
235.
In Article 1(1) of the operative part of the decision, the Commission charges St Anne with concerting on announced prices for 1975 and 1976. Having regard to the data in Table 6, it follows that the alleged concertation for the last two quarters of 1976 applies only to the southern zone, given the absence of truly identical prices for the northern zone.
236.
Finally on this point, it is self-evident that if the data in Table 6 cannot be substantiated in relation to one producer, that would, in my view, ipso facto be a ground for annulling the decision in relation to that producer with regard to the period in question since the Commission considers that it is the existence of identical announced prices that constitutes the primary evidence of a producer's participation in general concertation on price announcements.
237.
In any event I consider that the Court will be required to draw the appropriate conclusions from the absence of proof or from the errors in the decision in that regard only if it decides not to follow my Opinion, expounded below, as to the inadequacy of the reasons stated in the decision relating to each applicant's individual participation in a concerted practice.
1.2. The system of price announcements
238.
Let me begin with a brief outline of the mechanism of quarterly price announcements. In the weeks before the beginning of a quarter, the producers announce the price which they wish to obtain in the following quarter. Long-term supply contracts entered into with customers generally provide for the fixing of prices on a quarterly basis. Those prices are communicated to the producers' customers or agents. It is common ground that the trade press swiftly publishes the prices announced by the producers. It is true, according to the producers, that they quickly learn of the prices announced by their competitors either through their customers or from the press.
239.
The first question which arises concerns the function of announced prices. Already in my introduction I observed, as was also stated in the Report for the Hearing, which has not been contested on this point by the Commission, that announced prices constitute a maximum or ceiling price throughout the period in which they are valid. A number of applicants emphasize that price announcements are designed to give purchasers the assurance that prices will not exceed the announced level during the quarter in question whilst individual prices will be negotiated on that basis. In its defence, however, the Commission states that the argument that announced prices merely serve as a ceiling for actual prices and as an opening bid in the bargaining with each customer is clearly without foundation, and points out that for the third quarter of 1979 some United States producers announced a price of USD 425 for northern softwood although the product was sold at USD 435, being the price announced by their Canadian and European competitors.
240.
In that regard, I wish to make two points. In the first place, having analysed the producers' prices covering a period of some seven years, it strikes me as extremely unconvincing to deny that announced prices serve as a ceiling price on the basis of the findings relating to a given quarter for a few producers. Secondly, as I have pointed out, it is apparent from the statements made by some pulp purchasers which are now before the Court that, in their view, announcements serve as a ceiling and that costs are thus assured for the period in question. (
131
) Those documents have not been discussed by the Commission in its pleadings before the Court.
241.
The decision is ambiguous with regard to the actual assessment of the system of price announcements. In places, the Commission seems to consider that the mechanism of quarterly announcements constitutes an aspect of concertation on prices. Thus, in paragraph 108 the Commission states that it constituted ‘at the very least’ an indirect exchange of information on future market conduct. (
132
) Elsewhere, it seems to regard the details of the system and, in particular, the simultaneity of announcements, as evidence of concertation between the producers at an earlier stage. (
133
) The Court did indeed request the Commission on two occasions to make up its mind whether it regarded the system of quarterly announcements as an aspect of concertation on announced prices or as evidence of concertation at an earlier stage. The information provided by the Commission has by no means dispelled all the uncertainty. In its initial reply, the Commission essentially stated that the system of announcements was both an important part of the concertation ‘tending to reinforce the concertation on the common announced price’ and, on account of its nature, timing and form, evidence of concertation between producers at an earlier stage. The Court then asked the Commission to indicate the precise scope of that analysis. In its second reply, the Commission maintains that the system of price announcements constituted evidence of an infringement for two reasons. First of all, certain aspects of the system (in particular, simultaneous announcements) were not dictated by market conditions. Secondly, it formed part of the pattern of exchange of price information, ensuring that the announced prices of each producer — ‘and thus any departures from the common announced price’ — would be known to all other producers before they were implemented. Hence the system of quarterly announcements constituted an ‘important part’ of the concertation on announced prices by ensuring artificial transparency whereby each of the producers concerned could ensure that the others were abiding by the ‘common’ price.
242.
It is precisely the term ‘common’ price which masks all the ambiguity inherent in the defendant's position. Is that ‘common price’ the result of concertation between the undertakings prior to the announcements themselves, whereby the system of announcements constitutes the means for monitoring compliance with such concertation? Or does the system of price announcements constitute the machinery of concertation for fixing that common price?
243.
The lack of clarity in the Commission's position is unfortunate. It was not possible to resolve it at the hearing since the Commission referred both to concertation prior to the announcements, suggesting that an earlier agreement on prices made it pointless to settle on which undertaking was to be the first to announce its prices, and to an ‘unspoken understanding’. (
134
)
244.
In any event I have been unable, notwithstanding the many hours spent in studying this bulky file, to grasp clearly the precise function played, according to the Commission, by the system of price announcements within the framework of concertation. The defendant's position in this case has the consistency of mercury. Just as one is about to grasp it, it eludes one, only to assume an unexpected shape.
245.
I do not propose to analyse further the structure of the Commission's position regarding the features allegedly exhibited by concertation in this case. I must simply emphasize that the Court's assessment of the findings in the decision will be severely hindered as a result. In any event, it seems to me to be more appropriate for the sake of clarity to discuss that aspect of the position taken in the contested decision from the following angles:
—
first, the price announcements were designed to bring about an artificially transparent market and constituted an exchange of information between the producers;
—
secondly, the features of that system, which were not dictated by the objective conditions of the market, constitute evidence of concertation.
1.2.1. The system of price announcements created artificial transparency on the pulp market and constituted a system for exchanging information between producers
246.
It is appropriate to begin by calling to mind the whole of the Commission's analysis which is contested by the applicants. According to the decision, although the large number of competitors should theoretically have made concertation between producers more difficult, that difficulty was neutralized by the transparency of prices on the market. However, there was nothing inevitable about that transparency. It was the result of behaviour deliberately chosen by the producers who were in constant direct or indirect contact with one another. The market was made artificially transparent simply by the fact that the prices quoted by the producers were made known, published by the trade press or passed on to agents acting for a number of producers so early that other producers were able to react even before those prices came into force. Still according to the decision, if the producers had disclosed their prices only to the potential customers actually concerned, it would have been impossible for them, given the large number of customers and the wide range of products on the market, to obtain a rapid and accurate picture of the prices quoted by their competitors. That system constituted in itself at the very least an indirect exchange of information on future market conduct. That applied particularly where prices were made known by the producers themselves by being given to the trade press for immediate publication or by being passed on to agents acting for other producers. In such cases, the producer could expect the prices he announced to reach his competitors, just as he himself would expect to be given details in the same manner of his competitors' prices. In transmitting that information, therefore, the producers made use of third parties (such as the press, agents etc.). The fact that prices were published well in advance of their entry into effect at the beginning of a new quarter guaranteed that producers had sufficient time to announce their own — corresponding — new prices before that quarter and to apply them from the beginning of that quarter. In any event, the producers were given the information in time.
247.
That analysis is contested by the producers. They claim, in the first place, that the transparency of the pulp market stems from certain features which the Commission has disregarded and that, in particular, the Commission underestimated the role played by customers in the dissemination of information. They also observe that the defendant wrongly described the communication of prices to common agents or their publication in the trade press as an exchange of information between competitors.
248.
Before I consider those arguments, there are a number of observations I wish to make.
249.
In the first place, it must be stated that in no circumstances can the behaviour of undertakings on a market, which comes to the knowledge of their competitors, constitute in itself an exchange of information amounting to concertation. That would be tantamount to calling in question by means of Article 85 the transparency of certain markets. However, undertakings cannot be prevented from having recourse to public and reciprocal exchanges of information as regards their future conduct. In that respect, in view of the requirements of legal certainty, a criterion must be laid down enabling situations of that kind to be categorized.
250.
The concept of artificial transparency of the market adopted in the decision strikes me as being far from ‘reliable’ from that point of view. Emphasis must be laid, in my view, less on the artificial nature of transparency than on the artificial nature of the conduct of the undertakings themselves. In other words, as I said earlier, if they engage in conduct which is justified by commercial needs, I do not see on what grounds it can be challenged.
251.
If, on the other hand, transparency is the result of practices which do not correspond to rational needs in the light of the characteristics of a given market, the possibility cannot be ruled out that the undertakings' conduct may cease to constitute behaviour on the market directed at customers and may amount to an exchange of information. In that regard, it should be borne in mind that what is at issue in this case are ‘simple’ price announcements.
252.
Secondly, I would observe that the fact that prices are known in advance seems, according to the Commission, to constitute one of the aspects which enables an exchange of information to take place. As I have pointed out, however, prior price announcements correspond to specific commercial needs. Purchasers may, as I have said, wish to know in advance the cost of the product concerned for the purpose of making their own cost forecasts, determining their future prices, and communicating them to their own customers. Clearly, those needs will assume all the greater significance where the product concerned accounts for a major proportion of the purchaser's costs.
253.
That is precisely the case on the wood pulp market. In the first place, that product accounts for 50-70% of the cost of papermaking. The need for purchasers to know prices in advance is clearly borne out by some of the documents before the Court. For instance, according to a purchaser who describes himself as the most important individual purchaser in the Community, ‘it is certainly necessary for the papermakers that the increases in the price of pulp be announced well in advance, so as to have sufficient lead time to implement their own price increases on their own market’. (
135
) According to others, ‘we also look for agreement of the pulp price well ahead of its application, to provide a basis for planning our paper sales strategy’ (
136
) or ‘any change in pulp prices should be announced by the supplier long in advance’. (
137
) Those statements are quite unambiguous. In my view, they are of fundamental importance: the fact that prices are announced in advance does not a priori show that there is anything abnormal about the wood pulp market. That leads me to view with considerable caution the Commission's appraisal, according to which price announcements constitute in themselves a system for exchanging information.
254.
I now turn to the issue of the transparency of the market which the Commission regards as the ‘artificial’ result of the system of price announcements.
(a) The role of customers in the dissemination of information on announced prices
255.
According to the Commission, it should be recalled, the communication of announced prices to potential customers alone would not have enabled the producers to gain a rapid and accurate picture of those prices, in view of the range of products and the number of customers. In its view, especially in times of rising prices, (
138
) customers have no interest in informing producers of their competitors' prices. (
139
)
256.
Consideration of the applicants' observations leads me to conclude that the Commission underestimated certain characteristics of the market for wood pulp, to which I know turn.
a.1 Integrated producers
257.
The producers have drawn attention to the importance of vertical integration in the wood pulp and paper industry. Several of the producers involved in this case belong to groups which also manufacture paper and purchase pulp from competing producers for their own needs. That aspect has, moreover, been referred to in the decision.
a.2 The role of important customers
258.
The Commission has not denied that although the number of potential purchasers is extremely large, the number of very important purchasers is relatively small. Thus, according to the figures supplied by the Canadian applicants — which were not disputed by the defendant — in the mid-1970's 17 purchasers accounted for 50% of the purchases made and 41 accounted for 80% of all transactions. Nor is it contested, or open to challenge at first sight, that those customers are very important to the producers, who have every reason to remain in constant touch with the papermakers concerned. (
140
)
a.3 Common customers
259.
The Commission has itself stated that paper mills diversify their purchases by buying from different producers. A single purchaser may therefore know the prices of several producers. In that regard, the figures set out in the common part of the application submitted by the producers from British Columbia are very instructive. (
141
)
a.4 Horizontal communication between purchasers
260.
On this point, it is sufficient to refer to the very vivid description given at the hearing by Mr Cockram. He pointed out, as the Court will recall, that direct contact concerning similar pulp products could take place between undertakings which were not necessarily situated in the same country. He also emphasized that information on any changes in price spreads very quickly through the industry and is passed on in a matter of hours rather than days. Mr Cockram pointed out that the purchasers also ‘talk’ to agents acting for the producers.
261.
At the very least, information relating to announced prices seems to spread very quickly and widely amongst the purchasers. The Court will find in that regard that transparency of announced prices for pulp is considered desirable by the purchasers themselves, if reference is made to the documents produced during the proceedings. (
142
) Although the Commission does not seem to have challenged those different characteristics, it has maintained in the proceedings that, particularly in times of rising prices, customers have no interest in letting a producer know the prices announced by his competitors. The applicants have vigorously challenged that contention on the ground that, even at such times, customers are likely to inform a producer in order to persuade him to announce a moderate price or in order to maintain good business relations.
262.
First of all, it should be noted that the Commission does not seem to challenge the view that when announced prices are falling, or even holding firm (which was the case from 1975 until the end of 1978), purchasers may inform producers of the prices announced by competitors.
263.
Secondly, there is clearly no doubt that paper mills which are linked to producers will disclose the prices announced by other pulp manufacturers, whatever the trend with regard to prices.
264.
Finally, and above all, documents were produced during the proceedings showing that even in times of rising prices a producer may find out his competitors' announced prices from his own customers. The file on the case contains documents which flatly contradict the Commission's assertions. Thus, IPS which, like the other applicants, claims to obtain from its customers information on the prices announced by its competitors, has annexed to its application (
143
) under the heading ‘A representative pricing decision’ (
144
) several telex messages from its sales offices (
145
) in Europe (
146
) which related precisely to a period of rising prices, namely the end of 1979. Those documents are quite unambiguous: during that period of rising prices, IPS was very rapidly apprised of some of its competitors' price announcements as a result of information supplied by customers to its own sales offices. If the Court refers to those documents, it will find that IPS was able to take cognizance of a rival producer's announcement within two days, one day, or even on the day it was made. What is more, in certain cases, a customer was able to disclose that a competitor's announcement was imminent, or would be made, for instance, on the following day.
265.
It cannot be said that too much weight was attached to those documents. The defendant, which, according to IPS, had nevertheless known about them since the Statement of Objections, did not dispute either their contents or their authenticity: they are not even referred to in its defence or rejoinder. It was for the defendant to demonstrate how it was able to reconcile the information yielded by the documents in question with its categorical assertion that ‘there is no valid explanation of how such information spread so rapidly (i. e. within a matter of days, in some instances, on the same day) between such a large number of firms’ (paragraph 89 of the decision). Accordingly, the statement in the decision that the disclosure of information only to customers would not permit the producers to gain a rapid and an accurate picture of the prices quoted by their competitors is, to say the least, far from proven.
266.
It remains to consider the parties' arguments relating to the role of common agents and the trade press.
(b) Common agents
267.
According to the decision, the communication by a producer to common agents of its announced prices contributed to making the market ‘artificially’ transparent and constituted a flagrant example of the indirect exchange of information between producers. The producers concerned claim that the Commission's argument is contradictory. It had initially taken the view in the Statement of Objections that the activities of common agents constituted restrictions of competition within the meaning of Article 85(1). It then stated that it intended to terminate the proceeding.
268.
The defendant disputes that argument and points out that the fact that it ‘has not proceeded with certain objections involving common agents does not mean that the Commission concedes that common agents cannot be used by the producers as a means of exchanging information as to their respective prices. It was, however, sufficient to bring an end to the concertation between the producers without putting an end to the legal activities of the common agents’. (
147
)
269.
I am not swayed by that contention. The Commission considers that the activities of common agents may be lawful. The reasons which led it to take that view may be debatable. (
148
) It must be recognized, however, that if agents may, without infringing the rules of competition, act for several producers, those producers must evidently and necessarily communicate their prices to those agents in order to reach potential customers.
270.
Accordingly, the Commission cannot merely affirm that the communication of prices to common agents, which is justified by the actual sale of the pulp, constitutes an exchange of information between producers without demonstrating that such exchanges took place. From that point of view, the only telex mentioned in the decision which emanates from a common agency (paragraph 18) and concerns some of the applicants shows that Continental Cellulose, a Belgian agent for wood pulp, communicated the prices announced by KEA to Norrlands. (
149
) It is sufficient to state in that regard that, according to paragraph 36 of the decision, the agent in question did not represent either KEA or producers belonging to that association.
(c) The trade press
271.
In its decision, the Commission stated that announcements were made through the trade press. (
150
) Most of the producers claim never to have communicated their prices to the press. That is true, in particular, of Bowater, IPS, and the Finnish and Canadian applicants. St. Anne, which denies any systematic communications to the press, states that it has occasionally answered questions from the trade press. KEA producers claim, for their part, never to have made any public announcement to the press or to have taken any action to that end.
272.
In response to those arguments, the Commission contends in its defence that ‘the term “announcement” is used in the decision as comprising any form of disclosure or intimation of the future prices of a producer that enables these prices to be commonly known. It is therefore immaterial whether a producer contacted the trade press or whether the press contacted him. The relevant question is whether the prices would be published or in any other way passed on to other producers before they became effective and whether the producer disclosing them to a third person could count on this fact’. (
151
)
273.
Those arguments call for two observations.
274.
In the first place, although the decision asserts that announcements are made to the press by the producers, which the producers deny, the Commission does not even seek to prove that assertion. In that regard, its arguments seem to be directed exclusively at those producers who acknowledged that they have occasionally replied to questions from the trade press. I find, therefore, that the Commission has failed to establish in this case a single instance in which prices were systematically communicated to the press by the producers. Accordingly, there is no need even to consider at this juncture whether such conduct would be justified by business reasons on the market for pulp.
275.
Secondly, it seems to me that the Commission's contention must be firmly rejected as it is so vague. The fact that a producer may know, in disclosing a price to a ‘third person’, that it would become known to his competitors is certainly not sufficient to constitute an exchange of information. In any event, the term ‘third person’ is fairly imprecise. Does it refer to customers? Does the Commission consider that customers should be bound by a duty of confidentiality? Does it refer to agents? Does the Commission consider that agents cannot communicate prices to customers if that renders the market transparent? Does it refer to the press? As we have just seen, there is no proof that the producers systematically communicated prices to the trade press.
276.
In other words, the Commission does not even attempt to demonstrate which aspects of the producers' conduct were artificial: the mere fact of announcing prices in full awareness that they will become known is treated as participation in an exchange of information.
277.
Besides, some applicants have pointed out that the size and importance of the pulp and paper industries in the economies of a number of countries lay at the root of the development of a highly effective specialist press and the appearance of specialist trade and investment analysts (the shares of several of their companies are quoted on the stock exchange). They have emphasized that a large number of qualified professionals thus ‘track down’ information which they subsequently spread. Those observations have the merit of drawing attention to the fact that the role of the press is not a purely passive one. The journals in question can no doubt obtain information from the producers, but what about the agents and the customers?
278.
That survey leads me to the conclusion that the Commission's assessment according to which the system of price announcements constituted an indirect exchange of information between competitors and created artificial transparency on the pulp market is supported by very inadequate evidence and is based on an analysis which seems to have disregarded certain features of that market.
1.2.2. The system of quarterly announcements
279.
According to the Commission, the system of price announcements adopted by the producers is not necessitated by objective market conditions and it demonstrates that the parallel conduct of undertakings does not form part of the rationale behind independent competitive behaviour on the part of producers (a). It considers, more particularly, that the close succession or simultaneity of announcements constitutes evidence of concertation (b).
(a) The quarterly announcements mechanism is said not to be necessitated by objective market conditions
280.
According to the Commission, the practice of announcing prices for at least a quarter and of communicating them before its commencement is well established on the pulp market. However, it is not necessitated by objective market conditions. It was, for example, abandoned in 1982 and 1983. Moreover, the addressees of the decision declared their readiness to abandon that system by signing the unilateral undertaking annexed to the decision.
281.
Let me say at the outset that, as certain applicants have pointed out, the question whether the application of the system of price announcements is determined by the market is of no relevance whatsoever to the production of evidence of a concerted practice. The fact that the producers were able to adopt another system or even drastically amend their pricing policy as a result of the undertaking is altogether immaterial. Instead the fundamental issue is whether the details of the system of price announcements appear to be artificial. In that regard, two aspects of the system have in fact been called in question: the quarterly basis of the announcements and the use of the US dollar by producers from outside the United States. It should be noted that the undertaking entails abandoning those two features of the announcements mechanism, to which I now turn.
a.1 Quarterly basis of price announcements
282.
To begin with, it is undisputed that for the period under consideration virtually all the producers generally announced their prices as applying for a given quarter. (
152
)
283.
The applicants claim that the practice of fixing prices on a quarterly basis is well established on the pulp market. In their view, the purchasers favour stable prices in the long term whereas the sellers generally prefer prices to be fixed for shorter periods.
284.
Let me point out that most of the purchasers have expressed a preference for a system of fixing prices that remain valid for a long period of time and regard a quarter as the minimum duration of such a period. According to some papermakers, prices should be increased only every six months, or every year. (
153
)
285.
From that, the Commission infers that ‘it is not impossible’, particularly when prices are rising, for a producer to offer to fix his prices for a longer period in order to attract new customers.
286.
That does not go far enough, in my view, if we accept that price announcements have served as maximum prices. By offering a longer period, the particular producer may in some cases attract fresh customers drawn by the prospect of stable prices in the longer term. At the same time, however, he runs the risk of losing for the whole of the period in question the benefit of a rise in prices. In other words, he has to decide whether in order to attract new customers he must forego the prospective benefit of a foreseeable increase in prices during the period in question.
287.
The possibility cannot automatically be ruled out of the producer taking the view that the profit realized on fresh sales may not necessarily be higher than that yielded by the foreseeable increase in prices during the period in question. Is it not possible for an individual and rational choice to prompt him to opt to exploit a prospective price increase to the full?
288.
In pointing out that the producers could have acted differently, the Commission in no way demonstrates in its decision that the practice of quarterly announcements, which, it acknowledges, is well established on the pulp market, necessarily constituted irrational conduct on the part of each individual producer.
a.2 The use of the US dollar by non-United States producers
289.
In its rejoinder, the Commission observes that the decision of non-United States producers to price pulp in US dollars was not due to some unalterable characteristic of the market, as shown by the fact that the Swedish and Finnish producers, at least until 1976, fixed their prices in Swedish kronor, and some of the Canadian producers (e. g. BCFP and St Anne) had earlier fixed their prices in Canadian dollars. In its decision the defendant had regarded as evidence that the addressees of the decision had ‘aimed to establish a uniform price level for their products independently of market forces’ the fact that the Swedish and Finnish producers had reverted to quoting their prices exclusively in US dollars (instead of Swedish kronor) at the beginning of 1976 in order to reestablish the parity of prices which had been affected by the devaluation of the US dollar in 1975.
290.
To treat the fact that the prices of the producers in question are the same as those of their competitors as evidence of concertation is one thing. To regard the use of the US dollar by non-United States producers as in itself an artificial practice on the pulp market is quite another.
291.
In any event, the Court will find that from 1975 at any rate, Finncell was using that currency at least in part. Table 6 annexed to the decision shows a price of USD 415 announced by Finncell for the first quarter of 1975 for softwood pulp, zone 1. And, according to paragraph 112 of the decision, in the last three quarters of 1975 Finncell announced a price in US dollars and in Swedish kronor, the dollar price being at times higher and at times lower than that announced by the Swedish producers in kronor.
292.
During both the proceedings before the Court and the administrative procedure, (
154
) moreover, the Finnish applicants explained why the US dollar was regarded as a ‘lead currency’ on the market for wood pulp, emphasizing, in particular, the European customers' preference for the use of the dollar. Negotiations between the Commission and the producers with regard to the undertaking gave purchasers, or at least some of them, the opportunity to make their views known quite clearly in that regard. Their position, often expressed in very forceful terms, is free from any ambiguity: there has to be a single currency, whether or not the US dollar, for pulp transactions.
293.
I do not intend to embark here on a detailed examination of the various letters sent by paper mills to the Commission during its discussions with the producers. (
155
)
294.
Allow me simply to quote a passage taken from a letter from the Secretary General of the Association of German Papermakers: ‘Apart from that general remark, I consider it important that dealings in a raw material of world wide significance are carried out in a single currency. In that connection it is of no importance to the German paper industry whether that currency is the US dollar or another strong currency. We are concerned only that it should be a single currency because only that can provide the guarantee that all competitors who obtain that raw material purchase it at the same quoted price’. (
156
)
295.
A passage from another letter reads as follows: ‘We have always found it valuable to use the dollar price as a reference point. The removal of that reference point would not, in our view, be beneficial to the buyers, nor lead to any ultimate benefit for the consumer. Changing the basis to a wide range of currencies would make any assessment of the true current price more difficult due to variation in currency exchange rates. This would be to the disadvantage of the buyer rather than the seller and could lead to buyers in particular countries being placed at a competitive advantage over others. Therefore our ability to ensure that we are in a fair competitive situation with competitors in other countries would be eroded’. (
157
)
296.
It is quite clear from those documents that both the German and British purchasers in question are in favour of the system of using a single currency. Are those standpoints representative? It would in any event have been useful if the Commission had expressly stated its views (
158
) on those documents, the production of which during the proceedings makes it impossible, in my view, to establish with any degree of certainty that the use of the US dollar as such constitutes an artificial mechanism.
(b) Simultaneous price announcements
297.
The Commission considers that the rapid succession or even simultaneity of price announcements would not have been possible without a constant flow of information between the producers concerned (paragraph 107). It considers that there is no valid explanation of how such information spread so rapidly, that is to say, within a matter of days, or even on the same day, between such a large number of producers. The information supplied by customers passes from one producer to another in a multistage process (the producer — his agent or subsidiary — the customer — the agent or subsidiary of another producer — the producer) before it is disclosed to another producer who makes his own announcement.
298.
According to the decision, the simultaneity of announcements was particularly clear in some quarters, notably the first quarter of 1978 and the first three quarters of 1979. Producers in the same country generally announced their prices within a few days of one another.
299.
The applicants consider that the Commission's findings with regard to the dates on which announcements were made show that those dates were fairly close; however, those findings are often incomplete and they disregard such features as enabled the applicants to discover the prices announced by their competitors, and in particular the role played by customers.
300.
Let it be noted, first of all, that the Commission seems to have substantially underestimated the speed at which the information on announced prices given by the customers themselves was circulated. In that regard, I would again emphasize that it is clear from certain documents which were produced during the proceedings and whose authenticity has not been called in question by the defendant, that the possibility cannot be categorically ruled out, as the decision did, that producers are informed by customers of the prices announced by their competitors very soon after the latter have ‘brought out’ their prices, even in times of rising prices. It is also apparent from those documents that the customers are, in some cases, aware of the intentions of producers who have not yet disclosed their prices and that, once again, such information may be passed to competing producers by the customers themselves.
301.
The relevance of the Commission's contention that there is ‘no valid explanation’ (paragraph 89 of the decision) of how the producers are able to discover their competitors' prices so quickly must therefore be assessed in the light of the documents referred to earlier.
302.
It seems to me, therefore, that the proximity of the dates of the announcements (
159
) cannot as such be regarded as an indication of prior communication between producers.
303.
On the other hand, announcements ‘brought out’ on the same day by several producers would attract attention, particularly if they constituted the first announcements for a given quarter. In that regard, the Court will find that, according to the first experts, the announcements were not made on the same day.
304.
For my part, I have examined those quarters in which, according to the decision, the simultaneity of announcements was particularly striking. However, there is a preliminary remark I wish to make.
305.
The decision found that the members of KEA had committed a distinct infringement and, as I have already pointed out, the Commission cannot, on the same facts, have established that they committed an infringement by engaging in general concertation on prices. In any event, any simultaneity of the dates on which announcements were made solely as between members of KEA (
160
) cannot be regarded as evidence of concertation against producers outside that group. On the other hand, the simultaneity of those dates with that of other North American producers not members of KEA may in certain circumstances constitute a ‘cause for concern’.
306.
I now turn to an examination of the quarters in question, with reference to Table 6 annexed to the decision.
307.
Let me begin with the first quarter.
Quarter
Undertaking
Date of announcement
Softwood
Hardwood
Zone 1
Zone 2
Zone 1
Zone 2
1978/1
BC Timber
330
Canfor
330
295
MacMillan
9.12.1977
330
St Anne
22.12.1977
Weldwood
13.12.1977
330
320
Bowater
12.12.1977
310
310(S)
295(S)
280(S)
Crown Zellerbach
16.12.1977
320
Federal Paper
330
295(S)
295(S)
Georgia-Pacific
15.12.1977
295(S)
330
IPS
12.12.1977
330
320
305
295(S)
ITT Rayonier
15.12.1977
330
330
310(S)
Weyerhaeuser
13.12.1977
330
330
325
305
KEA
330
310(S)
330
325
325
Iggesunds
By telephone
330
305
305
Korsnäs
330
325
305
MoDoCell
30.09.1977
330
330
315
325
Norrlands
350
350
310
Södra
15.12.1977
330
Stora
350
SCA
29.12.1977
330
Borregaard
308.
The dates of announcements by the Swedish producers are particularly scant and neither the date of Finncell's announcements nor its prices are set out in the table.
309.
On the other hand, the dates on which certain North American producers made their announcements are very close. MacMillan seems to have been the first to announce its prices on 9 December, followed on 12 December by Bowater and ITT Rayonier, which was a member of KEA at the time, on 13 December by KEA itself and by Weldwood, a Canadian producer, on 15 December by another two KEA producers and on 16 December by Crown Zellerbach, also a KEA producer.
310.
It should be noted, however, that Weldwood's announcement was made four days after the first announcement by the only other Canadian undertaking referred to in the table, namely MacMillan.
311.
On the other hand, the simultaneous announcements made on 12 December by Bowater and ITT Rayonier, apparently the first United States undertakings (
161
) to have simultaneously ‘brought out’ their prices, may give pause for consideration. However, no conclusion can be drawn in that respect. The date of the announcement which the table attributes to Bowater was formally challenged by the latter. Bowater claims that it disclosed its prices on 5 January 1978 and the Commission has acknowledged that ‘the files do not contradict’ that claim. Furthermore, the price announced by Bowater is USD 10 or 20 lower than that of the other United States producers and Bowater was not found by the Commission to have been involved in any way in concertation on announced prices for 1978.
312.
I now turn to the first quarter of 1979.
Quarter
Undertaking
Date of announcement
Softwood
Hardwood
Zone 1
Zone 2
Zone 1
Zone 2
1979/1
BCFP
15.12.1978
400
BC Timber
400
Canfor
400
MacMillan
14.12.1978
400
410
Weldwood
20.11.1978
400
400(S)
Bowater
20.11.1978
385(S)
405
Crown Zellerbach
20.11.1978
400
400(S)
Federal Paper
20.11.1978
385(S)
400(S)
Georgia-Pacific
20.11.1978
385(S)
405
390
400
IPS
20.11.1978
400
405
Weyerhaeuser
24.11.1978
400
420
390
400
Iggesunds
20.11.1978
410
420
390
400
Kopparfors
24.11.1978
410
390
400
27.11.1978
420
390
400
Korsnäs
21.11.1978
410
420
390
400
MoDoCell
22.11.1978
410
420
390
395
Norrlands
17.11.1978
410
420
390
Södra
22.11.1978
410
420
Stora
28.11.1978
410
SCA
410
415
Finncell
410
313.
Apparently, the first undertaking to announce its prices was the Swedish producer Södra, on 17 November. Three days later, on 20 November, the table shows that six United States undertakings announced their prices simultaneously. Who would not be struck at first sight by the simultaneity of the dates on which five KEA producers and Bowater, a producer outside that group, made their announcements? It should, however, be observed that, once again, the date attributed to Bowater in Table 6 cannot be proved by the Commission. Bowater claims to have stated its prices on 15 December 1978 and the Commission considers, let us remember, that the file does not contradict Bowater's claim in that regard. Finally, scarcely any guidance can be obtained, in my view, from the announcements of the only two Canadian producers, which are recorded as having been made within a day of each other, and it is noteworthy that no date is given for Finncell's announcement.
314.
That brings me to the second quarter of 1979.
Quarte
Undertaking
Date of announcen:
Softwood
Hardwood
Zone 1
Zone 2
Zone 1
Zone 2
1979/II
BC Timber
420
Canfor
420
MacMillan
20.3.1979
420
Weldwood
Start of March
420
415(S)
Bowater
Start of March
410(S)
Chesapeake
430
Crown Zellerbach
425
415(S)
Federal Paper
410(S)
415(S)
Georgia-Pacific
Start of March
410(S)
430
IPS
14.3.1979
425
430
ITT Rayonier
16.3.1979
425
430
410
425
Weyerhaeuser
16.3.1979
425
450
410
425
Kopparfors
13.3.1979
435
415
430
8.3.1979
420
410
425
Korsnäs
20.3.1979
435
450
410
425
MoDoCell
14.3.1979
435
450
410
405 to 410
Norrlands
7.3.1979
435
450
410 to 415
Södra
March
435
450
Stora
435
SCA
435
440
Finncell
435
This table also reveals the proximity of the dates on which the Swedish producers made their announcements. No date is given for the Finncell's announcement, and the table made merely states that it was made in Marc for There is a specific date for only one North American producer, at least 13 days after the first Swedish announcement indicated on the table. For Bowater and Chesapeake, a United States member of KEA, the date is given merely as the start of March. What conclusion can be drawn from that succession of announcements, other than the proximity of the Swedish announcements?
315.
Finally, I turn to the third quarter of 1979.
Quarter
Undertaking
Date of announcement
Softwood
Hardwood
Zone 1
Zone 2
Zone 1
Zone 2
1979/II
BCFP
435
BC Timber
435
Canfor
435
MacMillan
15.6.1979
435
450
Weldwood
End of May
435
425(S)
Bowater
410(S)
435
Crown Zellerbach
End of May
425
425(S)
Federal Paper
410(S)
425(S)
Georgia-Pacific
410(S)
435
410
410
IPS
19.6.1979
425
435
410
425
ITT Rayonier
15.6.1979
425
435
410
425
Weyerhaeuser
19.6.1979
425
450
410
425
Korsnäs
16.6.1979
435
450
410
410
MoDoCell
18.6.1979
435
410
Norrlands
435
450
410
Södra
435
450
Stora
435
SCA
435
445
Finncell
435
This table has at least as many gaps as that for the previous quarter: a specific date is given for only one North American producer, and none at all for Finncell. As the table is so incomplete as regards the dates of announcements, it is impossible, once again, to establish the chronological sequence of announcements for the quarter in question, particularly in the case of the Canadian and United States producers.
316.
A detailed examination of the tables in question is a somewhat tedious exercise which I have been obliged to carry out on account of the Commission's contentions as to the striking simultaneity of the announcements made for the periods in question. Apart from the marked proximity of the dates of those announcements, I have not found any obvious evidence of an inexplicable similarity. (
162
) Have I perhaps overlooked a particularly ‘eloquent’ set of identical dates? I cannot rule out such a possibility, notwithstanding the care I have sought to exercise in analysing the periods in question. If that had been the case, it would nevertheless have been for the Commission specifically to draw attention to situations of that kind. Besides, those tables are evidently incomplete and the Commission has been unable to establish the dates of announcements — I have in mind Bowater's — which would at times have served to reveal the most marked similarities. In any event, let me emphasize, it is at first sight hard to understand why the Commission has persisted in arguing that announced prices could not accurately and rapidly come to the knowledge of competitors without attempting to explain how it justified that position in the light of certain evidence to the contrary which it has apparently disregarded, without even discussing it.
317.
In my view, therefore, the Commission's assessment of the system of announcements and of the details of that system has by no means been established beyond all doubt in the light of the documents before the Court. In any event, the defendant has failed to provide a satisfactory answer to the applicants' arguments to the effect that it underestimated certain features of the pulp market.
1.3. Parallelism of announced prices: evidence of concertation on the pulp market?
1.3.1. The Commission's analysis
318.
The grounds of the decision seem to apply without distinction to concertation on transaction prices (Article 1(2)) and to concertation on announced prices (Article 1(1)), the only kind which I consider it necessary to examine here. The Court requested the defendant to explain, in particular, whether the analysis in paragraphs 90 to 105 of the decision also applies to parallelism of announced prices. The Commission replied that the analysis was also relevant to its conclusions regarding concertation on announced prices.
319.
Let us recall, therefore, the substance of the Commission's analysis in its entirety, which is aimed at excluding the possibility that parallelism can be explained without concertation. According to the decision, in the light of the conditions prevailing on the pulp market and of a proper economic analysis, the producers' conduct from 1975 to 1981 cannot be explained as independently chosen parallel conduct in a narrow oligopolistic situation.
320.
The Commission stated that the European market is supplied by 50 or so producers and consists of several hundred customers; it emphasized that, among both suppliers and purchasers, there are a large number of substantial undertakings whose size and market position enable them to pursue an independent and active competitive policy. The large number of competitors, the many customers, and the very wide range of products give the undertakings an opportunity to improve their position at the expense of their rivals. However, they have continually foregone such opportunities, which are the mainspring of competition, and have systematically offered their products on the same terms. The Commission further explained how the system of price announcements had created artificial transparency on the market, which neutralized the fact that concertation had been made more difficult by the large number of competitors. (
163
)
321.
The decision also noted that the simultaneity of the price announcements and the similarity of announced prices cannot be explained by the existence of a ‘price leader’ whose prices are adopted by competitors. In the period under consideration, the order of the undertakings announcing new prices changed from quarter to quarter and no individual undertaking had a sufficiently strong market position to establish itself as a market leader.
322.
Furthermore, the similarity of announced prices and actual prices cannot be explained as so-called ‘equilibrium prices’. The Commission acknowledges that effective competition tends to lead in any market situation to an ‘equilibrium price’. However, that price, which fluctuates with any change in market conditions, is the result of a testing of the market by trial and error which can lead to higher or lower prices and compel the undertaking which was the first to announce a higher price to abandon it. From that point of view, it is inexplicable, under normal competitive conditions, that in the step-by-step rise in prices, such as occurred in the case of northern softwood from the third quarter of 1979 to the second quarter of 1980 in four stages, and in the case of southern softwood from the second quarter of 1979 to the second quarter of 1980 in five stages, the first higher price demanded should in each case prove to be the new ‘equilibrium price’ and that no undertaking should have tested the market with a different price. It is equally inexplicable that under real competitive conditions on a rapidly changing market and during a period of two years (from the first quarter of 1975 to the fourth quarter of 1976) no undertaking except Finncell should have made the slightest attempt to test, by charging a different price, whether the price charged still corresponded to the ‘equilibrium price’.
323.
The decision also stated that, in view of the large number of producers and the differences in economic conditions which determine the pricing policy of individual producers, the uniformity of prices cannot be explained by mere coincidence of independent decisions. In view of the differences in the producers' positions, there is no reasonable economic explanation for the fact that the addressees of the decision behaved with regard to their pricing policy in an absolutely similar fashion. An analysis of the differences in question is set out in paragraph 90 et seq. of the decision. To summarize, the Commission has found that:
—
the Community market is more important for the Finnish and Swedish producers than it is for the Canadian and United States producers;
—
the capacity utilization ratio differed widely between the undertakings; it was generally higher for the United States and Canadian producers than it was for the Finnish and Swedish producers, and it varied even between producers located in the same country;
—
production, storage and transport costs varied from one producer to another;
—
the relationship between costs and selling prices shifted continually for the Canadian, Swedish and Finnish producers, by far the greatest proportion of whose costs was incurred in their national currencies whereas supplies were priced in US dollars, and the exchange rates between the US dollar on the one hand, and the Canadian dollar, the Swedish krona and the Finnish mark, on the other, continually fluctuated during the period in question;
—
demand for pulp varied very widely from one importing country in the Community to another;
—
the costs per tonne incurred by producers depend on the quantity sold to each individual customer, whilst the price differences recorded in the periods under review between a single purchase of a small quantity and regular purchases of a very large quantity generally amounted to no more than 3%; such discounts were granted on very similar terms. (
164
)
324.
According to the decision, the differentiation of prices for bleached sulphate wood pulp would nevertheless have been possible. The decision thus refers to the differences between the second quarter of 1977 and the second quarter of 1979 when, as regards the prices invoiced, the producers must have decided not to charge the unrealistic concerted prices. (
165
) The Commission also refers to the practice of two undertakings, Domtar and Bowater, in showing that during certain periods their transaction prices differed from those of their competitors.
325.
Furthermore, the Commission considers that the shifts in market shares between the producers between 1975 and 1981 do not support the conclusion that there was no concertation. Those shifts were much less marked at times when the producers charged uniform prices than at other times.
326.
Finally, it should be noted that according to the decision, the prices announced in 1976, 1977 and 1981 were kept at an artificial level which differed widely from that which would have been expected under normal competitive conditions. For example, it would have been inconceivable, given unrestricted competitive conditions, for the same price of USD 415 announced for northern softwood to have remained unchanged from the first quarter of 1975 to the third quarter of 1977. Thus, in the second and third quarters of 1977, announced prices sometimes stood at up to USD 100 above the selling price which could in fact be obtained on the market. Similarly, the rapid fall in actual selling prices in 1977 (25%) and in 1982 (20%) showed that, for a significant period, selling prices were higher than those which would have been obtained under normal competitive conditions. According to the decision, the fall in prices was triggered by market forces which compelled the producers to bring to an end concertation between them. The stagnation or slight fall in consumption in 1977 and in 1982 would not have been sufficient to trigger a fall in prices of that magnitude if the prices achieved in 1976 and in 1981 had corresponded to the competitive market equilibrium price. Furthermore, in 1975 the producers had absorbed a fall in consumption of more than 15% and a fall in imports of just under 30% without that leading to a fall in prices. The prolonged strike in Canada in 1975 and the Swedish Stock Incentive Scheme were not sufficient to compensate for the overall decline in demand. The Swedish suppliers capacity utilization ratios fell, despite the State aid programme, by 10% to 15%, that of Finnish suppliers by some 15% and that of United States suppliers by up to 20%.
327.
That is the Commission's argument, which led it to conclude that parallel conduct could not be explained without concertation.
328.
Against that analysis, the applicants have marshalled abundant arguments, which are very clearly set out in the Report for the Hearing. I refer to that document for details of the discussion before the Court between the parties in that regard. Let me say simply that the applicants challenge the Commission's conclusions on the ground that their conduct with regard to announced prices reflected independent decisions to align themselves with the prices announced by their competitors, which were known on account of the natural transparency of the market, and that their individual pricing policy was determined in a rational and independent manner in the light of their own economic circumstances which they frequently describe in great detail.
329.
I would observe at this juncture that most of the applicants claim, at least with regard to the periods in which they acknowledge that announced prices were the same, that this can be explained, in particular, by the homogeneity of the product in question and the transparency of the market. A producer has no interest in announcing prices higher than those of his competitors since he would then lose customers, as the Swedish and Finnish producers found in 1975. Nor, according to some of the applicants, does a producer have an interest in undercutting announced prices since such prices merely constitute a ceiling for the negotiation of actual transaction prices with individual customers. The Finnish applicants emphasize, for their part, that a fall in Finncell's prices would be followed by their competitors, whilst the quoting of prices higher than those of their competitors leads to a fall in sales.
330.
It should also be stated that, according to the applicants, certain groups of competitors acted as market leaders, although none of the applicants admits to belonging to a group which was strong enough to do so. The Finnish applicants claim that, having sustained losses in 1975, when they announced prices higher than those of their competitors, from the following year until the beginning of 1977 (
166
) they had no choice but to fall into line with the prices generally quoted by their competitors, emphasizing in that regard the strength of the North American producers whose policy with regard to prices they could not afford to disregard if they wished to avoid losing more customers. According to the members of KEA, the ‘KEA recommended price’ was generally adopted after the Swedish, Finnish and Canadian producers had announced their prices. IPS observes, for its part, that, for most of the quarters in question, the Scandinavian producers were the first to announce their prices. Bowater and St Anne claim always to have acted as ‘followers’ in relation to other producers, and were generally the last to announce their prices. St Anne states that when it announced the same prices as its competitors, it was merely aligning itself independently with the prices of KEA and Finncell, which — St Anne claims — acted as market leaders. Finally, the five producers from British Columbia also claim that they did no more than align themselves with the prices of other producers, always waiting for Scandinavian, KEA or individual United States producers to make their announcements. They also emphasize that the Scandinavian producers are the natural market leaders and that the decision contains firm evidence of the existence of an export association (KEA), a joint marketing agent (Finncell) and discussions on prices under the auspices of the Bristol Club. Those different groups, to which they never belonged, account for a substantial share of the Community market.
331.
In support of their view, some of the applicants submitted, either during the administrative procedure or in the proceedings before the Court, opinions drawn up by distinguished economists, Professors Budd, Hart, Jacquemin, Phlips and Von Weiszäcker.
332.
I would simply observe here that some of those opinions focused more specifically on analysing the behaviour of individual addressees — such as Professor Budd's report concerning Bowater and the reports compiled by Professors Hart and Von-Weiszäcker on the members of KEA — in reaching the conclusion that such behaviour did not in any way point to their participation in concertation with other producers. In their analysis, Professors Jacquemin and Phlips considered, for their part, that the structure of wood pulp prices could be explained without reference to the possibility of concertation, having regard to the characteristics of that market.
333.
In its rejoinder the Commission carried out a critical examination of those different opinions, firmly rejecting their conclusions. On completion of the written procedure, therefore, the Court was confronted with a substantial body of economic argument, referring at times to theoretical models which, whilst doubtless familiar to an economist, are nevertheless, in my view at any rate, of manifest complexity (I am thinking, for example, of the Cournot-Nash equilibrium which, according to Professor Phlips, was a feature of the pulp market). The Court was therefore obliged to order an expert's report whose compilation was entrusted, with the parties' consent, to Mr Cockram and Mr Fishwick.
1.3.2. The expert's report ordered by the Court
334.
In substance, Mr Cockram and Mr Fishwick came to the conclusion that the uniformity of prices could be explained by the natural operation of the wood pulp market. Indeed, such uniformity of prices was in some respects inconsistent with the operation of a cartel. They pointed out, however, that this did not per se prove the absence of concertation.
335.
The Commission, both in its observations on the expert's report — annexed to which is an opinion by Professor Neumann on which the defendant relies — and at the hearing, challenged the expert's report and requested the Court not to accept its conclusions.
336.
It is now time to embark on a discussion of this issue, which I shall attempt to organize around those aspects of the experts' report at which the Commission's major criticisms are directed.
(a) The expert's report is said to oversimplify the Commission's reasoning
337.
The Commission raised the objection first of all that the expert's report was based on a misleading oversimplification of the reasoning in the decision. In asserting that the Commission's conclusion was ‘based mainly, but not entirely, on the indirect evidence of apparently similar prices’ the experts disregarded the fact that the decision was based on a ‘dynamic’ approach to price trends. Thus, it was the manner in which identical prices were announced and, in particular, the simultaneity or near-simultaneity of the announcements, the total lack of an alternative announced price and the fact that the announced prices continued to be applied by the applicants in transactions over at least the following three months, notwithstanding differences in the economic conditions determining the pricing policies of individual producers which, together with the uniformity of the prices themselves, was regarded as evidence of the concerted practice. By contrast, the models used by the experts were essentially static, taking no account of the manner in which the ‘equilibrium prices’ were achieved on the pulp market.
338.
I have three observations to make in that regard.
339.
If the Court refers to the task entrusted to the experts, it will find that the second question put to them was as follows: ‘the expert is requested to give his opinion, in the light of those factual characteristics, on whether, and for what reasons, the natural operation of the wood pulp market should lead to a differential price structure, or whether, and for what reasons, it should lead to a uniform price structure’. It must be noted that the question did not lay emphasis specifically on the details of the changes in prices underlined by the Commission. When the Court communicated to the defendant the draft definition of the task of the experts, which was precisely couched in those terms, (
167
) the defendant replied by letter of 31 August 1990 that it was satisfied with it.
340.
Secondly, the Court will find that some of the aspects which the experts did not deal with, wrongly according to the Commission, in fact relate to the details of the system of price announcements, and in particular the simultaneity of those announcements. I have already analysed the defendant's views in that regard.
341.
Finally, at the hearing I asked the experts to explain whether they considered that the expression ‘equilibrium price’ was applicable to announced prices or whether it applied to transaction prices alone. That is the view taken by several of the applicants who maintain that only transaction prices are capable of reflecting the balance between supply and demand, whilst the announced prices merely act as a ceiling. Mr Fishwick stated that the announced price acted as a ceiling price, whilst the transaction price would be the ‘equilibrium’ price. I have already pointed out in that regard that the Commission, in contending that the applicants' argument that announced prices constituted a ceiling is manifesdy unfounded, had stated that, in one quarter out of the 28 covered by the decision, certain United States producers had charged a price higher than that which they had announced. In that regard, I pointed out that the defendant had drawn certain conclusions which, in my view, were highly debatable, from a situation which, according to its own findings, was exceptional and that the pulp purchasers themselves regarded announced prices as buffers.
(b) The economic model used by the experts
342.
The Commission further considers that the experts referred in some places to the ‘perfect competition’ model, and in others to the ‘pure oligopoly’ model. In its view, neither of those models applies to the pulp market and it is, in any event, inconsistent to use them simultaneously.
343.
As regards, first of all, the ‘perfect competition’ model, it should be noted that the expert's report contains a number of express references to that model and that the defendant has, moreover, drawn attention to those characteristics of the pulp market which depart from it, emphasizing in addition that, as the relationship between undertakings' average costs and observed prices on the pulp market also demonstrates, the standard model is quite inapplicable in this case. (
168
)
344.
At the hearing of the experts, Mr Fishwick informed the Court that he had used the concept of a ‘perfect market’ and did not suggest at any point in the report that the structure of the wood pulp market approximated the conditions of ‘perfect competition’, which requires an atomistic supply structure. The definition of a ‘perfect market’ is to be found on page 5 of the report: it is a market where customers are perfectly informed about prices and qualities of goods available and are willing and freely able to substitute one product for another. In a market of that kind, identical products would sell at the same price. Demand for the product of any one undertaking would be perfectly elastic and would not be affected by the structure of supply. From that point of view, in the short term pulp purchasers depended on a small number of suppliers for each type of pulp and would pay similar prices. The references to perfect competition on pages 7 and 8 of the report were a response in theoretical terms to the observations in paragraphs 84, 90 and 93 of the decision in which the Commission implied that supply by a large number of undertakings with different costs would lead to price differences. (
169
) The experts thus sought to demonstrate that, even under conditions of ‘atomistic’ supply or perfect competition, prices would be uniform irrespective of differences in costs.
345.
For my part, I can only take note of those explanations and add that the expert's report does indeed state that ‘uniform prices would prevail in a perfect market irrespective of the structure of supply to that market. Provided that buyers remain aware of the homogeneous nature of the product and are free to transfer between suppliers, it does not matter whether there are very few suppliers or very many — identical products must sell at the same price’. (
170
) I find, however, that there is at least one other passage in the expert's report which refers to competition on the pulp market between a large number of competitors. (
171
)
346.
The Commission's second criticism of the expert's report touches, in my view, one of the key points of the report in that the experts concluded that the pulp market reflected short-term oligopolistic situations.
347.
It is necessary to refer to the expert's analysis in that regard. They took the view that although price-elasticity of demand for pulp in aggregate may be low, price-elasticity in response to a price change by an individual supplier would be very high, if other manufacturers of interchangeable products keep their prices unchanged. Each manufacturer is acutely aware of the cost of his pulp in relation to that used by his competitors, since pulp represents a major element of cost. However, such elasticity is reduced owing to the effect of two factors: the products are not altogether interchangeable and the existence of stable relationships between producers and purchasers.
348.
In that regard, according to the experts, hardwood pulps are generally mutually interchangeable, whereas only 75% of northern softwood pulps and 95% of southern softwood pulps are. Southern softwoods may, for certain types of paper, be substituted for northern softwoods but, since they are of inferior quality and slow down the papermaking process, such substitution is possible only in weak market conditions. In order to make substitution permanent, specific equipment must be installed, which means that southern softwood must sell at a lower price.
349.
Paper is produced from a mixture of different types of pulp. Each paper manufacturer needs a particular kind of mixture and identifies suppliers who are reliable in terms of delivery and quality. Thus, even though the number of suppliers and purchasers may seem large, for any one category of pulp within which products are interchangeable there may be only a few suppliers and a small number of purchasers accounting for a substantial proportion of total purchases. The experts have described that situation as an ‘oligopoly-oligopsony’, that is to say few sellers to few purchasers.
350.
In view of the interdependence between pulp producers and papermakers, long-term relationships have been established. Those relationships were mutually advantageous to the producers and their customers, providing security of demand and supply. They have been sustained by the cyclical nature of the market: customer loyalty in a weak market balancing supplier priority in a more buoyant market. Advance notification of prices to purchasers for each quarter forms an integral part of that arrangement.
351.
According to the experts, that analysis has implications for price-elasticity, which they describe as the most complex aspect of the case. In the short term, commercial relationships between purchasers and suppliers are likely to have reinforced the oligopoly-oligopsony for individual qualities of pulp. That being so, pricing strategies must take account of the interdependence of producers. Thus, any producer reducing his prices would expect competitors to follow suit. His customers would probably demand parallel price reductions as an alternative to switching orders. In the short term, no producer would wish to initiate a price war, if the foreseeable result was a reduction in prices in a market where aggregate demand is considered inelastic. Similarly, no producer would raise prices unless he was confident that his competitors would follow suit, and they would only do so if they did not have the capacity to increase sales at the expense of the producer who was the first to raise his prices.
352.
In the short term, prices would thus tend to be static in a weak market, because each supplier of a particular type of pulp would realize that any price cut would be followed by other suppliers of that product. In short-term oligopoly conditions, prices would tend to be slow to fall in conditions of excess supply and that inflexibility of prices downwards would be reinforced by market transparency, every supplier realizing that any change in price would quickly be matched by competitors. Under tighter conditions in a strong market, transparency would facilitate price increases because the reactions of competitors would soon be revealed. Concertation on prices would not be necessary to produce that result.
353.
Still according to the experts, however, short-term oligopoly was limited in its effects by longer-term substitutability.
354.
To begin with, long-term commercial relationships depend largely on price uniformity. Ability to raise prices depends not only on the willingness to follow on the part of other suppliers of the same category of pulp, but also on parallel price increases for other pulps which can be substituted by means of changes in the mixture or in the production process. Except in the short term, the number of potential suppliers far exceeded the number likely to be supplying one grade of pulp to a particular papermaker. Secondly, in the late 1970's and early 1980's there was potential competition from the south of the United States and from tropical climates, particularly from eucalyptus of Brazilian origin. The use of recycled paper provided another possible brake on price increases. Those longer-term considerations limited the upward movement of prices which would otherwise have occurred during periods of buoyant demand under oligopoly conditions.
355.
The Commission disputed the principle on which the experts' analysis was based. In its view, it was impossible to isolate relations between certain market participants in order to determine whether those relations constituted an oligopoly; it was necessary to consider the market as a whole. At the hearing, Mr Fishwick stated in that regard that, where relationships exist between sellers and purchasers, the theory has to be adapted in some respects because of the situation which he regards as abnormal but that, in any event, it did not affect the validity of the principles concerned.
356.
I do not believe I am flinching from my responsibilities in considering myself unable to express a view on the theoretical pertinence of an analysis which distinguishes a series of ‘small oligopolies’ in the short term within a given market. At the very least, is it possible to establish whether relations between sellers and purchasers took the form indicated by the experts? The Commission emphasizes in that regard that some of the applicants — and certain economists whose opinions they have produced — have themselves laid emphasis on the large number of competitors and the distribution of sales on the market.
357.
At the hearing, Mr Fishwick stated that each purchaser bought a given grade of pulp from two or three sellers. He also pointed out, referring by way of illustration to the situation of the Canadian producers for the first quarter of 1977, that although each producer sold to a large number of customers, a few customers accounted for most of the sales.
358.
For my part, I have already observed that the Commission did not apparently dispute that the number of major customers was relatively small. However, although the pattern of relations between sellers and purchasers as found by the experts may have corresponded to the pattern that existed on the pulp market, I believe that it can hardly be regarded as constant in view of the documents before the Court. Besides, the applicants have scarcely drawn attention to the phenomena found by the experts. As the Commission points out, some of them have on the contrary laid emphasis on the large number of sellers and purchasers. It is true that the experts' analysis applies to short-term relationships between sellers and purchasers as regards pulp of a particular grade. In that connection, however, the report emphasizes that ‘the supplier's perception of “price-elasticity” is of greater significance than any objective measurement, because it is the perception which would have determined pricing policy’. In other words, on the assumption that for pulp of a particular grade there are few purchasers and few sellers, at least in the short term, and that this situation has given rise to interdependence between the producers concerned, it is puzzling to observe that not all the producers have emphasized that phenomenon which, however, according to the experts, led to a policy of fixing prices. With regard to interdependence, however, attention must be drawn to the arguments of Finncell in which it expressly emphasized that ‘any substantial departure by a large supplier from the prices generally quoted has the effect either of inducing his competitors to align themselves with his price or of preventing him from gaining customers' acceptance of his new price’. (
172
) The Commission apparently acknowledged that, in view of Finncell's market share, it was plausible that competitors reacted to the fall in Finncell's prices. But that was not the case, according to the defendant, for the individual United States and Canadian producers who, in view of their much smaller market share, would have been far less likely to be followed if they had reduced their prices.
359.
Let me point out, moreover, that at the hearing the experts were asked to explain how they reconciled their view that, in times of rising prices, parallelism without concertation is a result of market transparency with the principle, referred to in their report, that in an oligopolistic market prices are slow to rise.
360.
Mr Fishwick stated in that regard that the increases in 1979 and 1980 were followed because stock levels were low and utilization of production capacity was high. This meant that producers could increase prices in the knowledge that they would not lose market shares because their competitors did not have spare capacity and would therefore follow suit. He also pointed out that Table 6 annexed to the decision did not provide evidence of price ‘leadership’ for the period from 1977 to 1980. Different undertakings were the first to announce price increases in different quarters, which showed that there was no collusion.
361.
According to the Commission, that analysis was based on the assumption that producers were aware of their competitors' capacity utilization ratios. From that point of view, Mr Fishwick pointed out that he did not think that producers knew each other's capacity utilization ratios but that the market was extremely transparent and yielded a remarkable amount of information concerning capacity utilization and the level of stocks in the industry as a whole.
362.
With regard to the ostensible absence of ‘price leadership’ in times of rising prices, the Commission raised the question whether it mattered which undertaking announced a price first, if there was prior agreement on what the announced price would be.
363.
I wish to make two observations with regard to that aspect of the matter. First of all, it should be noted that the expert's report itself has relatively little to say with regard to parallelism of price increases. Mr Fishwick's explanation is, certainly, not altogether implausible in that respect but I must say that a more detailed examination in the written report itself would have been welcome. However, contrary to the attitude which the Commission seemed to take during the oral procedure, the experts expressly referred in their report to the publication of stocks and utilization ratios in stating that transparency may have played an important part in this case by facilitating price increases when the market was strong.
364.
It should also be noted that Mr Fishwick stated, in reply to a question from the Commission, that consultation between producers before price announcements would have been an effective way of exploiting the increase in demand and maximizing the price that could be obtained on the market. He pointed out that such incentives to concert were not peculiar to the pulp market but were true of any market in which aggregate demand was inelastic.
(c) The alleged failure to examine the level of prices
365.
The experts pointed out that on an oligopolistic market, the smaller the number of competitors, the greater the degree of interdependence and the greater the excess of price over marginal costs. According to the defendant, however, the experts failed to mention that it is possible to examine the amount of the price excess for any given degree of concertation in an oligopolistic industry to determine whether it is merely of the size that would be expected without collusion. A higher excess is cogent evidence of collusion.
366.
In that regard, the Commission relied on Professor Neumann's opinion. He considered that if all 39 producers listed in Table 5 annexed to the decision had been acting independently, a Cournot-Nash equilibrium would have emerged where the ratio of ‘price minus marginal cost over price’ would have been equal to the Herfindahl Index of concentration divided by the price elasticity of demand. That is a standard result of oligopoly theory. Applying that formula to the data given in the decision, Professor Neumann considers that the price excess over marginal costs in the event of non-collusion should have been around 5 to 10%, whilst it amounted to around 40 to 60% from 1974 to 1976 and around 36% in 1981. Whilst he acknowledges that those rough and ready calculations are subject to a wide margin of error, there can be no doubt, in his view, that, given that order of magnitude, collusive arrangements led to price-cost margins being substantially higher than they would have been under truly competitive conditions where producers acted independently.
367.
At the hearing, Mr Fishwick challenged that analysis. He considered that it was based on the assumption that all the producers were in the oligopoly. In the short term, there was a greater degree of restriction on the supply available, with the result that the Herfindahl Index should have been calculated differently. The ‘time dimension’ should be introduced in the market definition and, in the short term, profit margins were greater than would be the case if all the producers were included in the oligopoly.
368.
In my view, if, as the Commission contends, economic theory provides a mechanism for establishing cogently whether the level of prices is collusive, it is unfortunate that it was not referred to either in the decision or in the Statement of Objections and that the Commission invoked it only in its observations on the expert's report. The decision does not specify the formula for computation on which the defendant relies in discussing the conclusions reached by Mr Fishwick and Mr Cockram. But, as the Commission pointed out at the hearing, paragraphs 112 and 113 of the decision do refer to the artificial level of prices at certain periods.
369.
In that regard, the experts considered that the fall in prices in 1977 was the result of the massive excess supply resulting from the termination of the Swedish stock subsidy scheme in June 1977 at a time of stagnating demand. It should be borne in mind at this juncture that the Commission considered in paragraph 113 of the decision that the very substantial fall in transaction prices in 1977 (25%) showed that the previous level of prices had been artificial since such a fall in prices could not have been triggered by the stagnation in consumption or the slight decline in imports during that year. I must observe that, so far as concerns the fall in prices in 1977, the decision makes absolutely no mention of the possible consequences of the ending of the Swedish stock incentive scheme, although it does refer to the huge increase in stocks in Sweden caused by that scheme. (
173
) However, one does not have to be a top flight economist to imagine the impact on the level of prices of the disposal of stocks accumulated under the Swedish State aid scheme. All I need say is that in failing to refer expressly to the ending of that scheme, the contested decision seems to me to contain an analysis which is to say the least incomplete in that respect. Moreover, the difference of USD 100 found by the decision to have existed in the second and third quarters of 1977 between announced prices and actual prices is indeed substantial. But, assuming that announced prices constitute ceiling prices, does the fact that they apparently lost all credibility at the time when the Swedish scheme was on the point of being discontinued or had just ended carry decisive weight?
370.
In their report, the experts stated that the fall in prices for 1977 had brought prices down towards the variable costs per unit of the most efficient producers. According to the Commission, that finding showed that prices were previously higher than the producers' marginal costs. It emphasized in that regard that Table 1 annexed to the decision shows that prices were far higher than the producers' total variable average costs, whilst the capacity utilization ratios of a number of producers were not very high.
371.
From that point of view, Mr Fishwick stated that profits were no doubt greater than they would have been under conditions of perfect competition, but considered that the excess could be explained by the oligopolistic nature of the market. He pointed out that prices for 1975 and 1976 had remained the same as that determined in 1974 by excess of demand over supply. Oligopoly theory does not serve to account for the level of prices but merely explains their tendency towards rigidity. In that regard, according to the experts, special factors, to which I now turn, contributed to the persistence of that situation, which was particularly marked before the fall which occurred in 1977.
(d) The period from 1975 to 1977
372.
It should be noted, in the first place, that an announced price for northern softwood pulps, zone 1, of USD 415 was maintained by all the producers for most of the period in question, and by certain producers for the whole of that period. The experts considered that there had been a number of specific reasons why the increase in the level of stocks and the fall in capacity utilization had not led to a decrease in prices.
373.
The experts focused on 1976, in particular, emphasizing that this was the year in which world production of paper recovered and economic forecasts were considered good. They also pointed out that, in view of the rate of inflation, the real value of list prices fell, even though their nominal value remained unchanged.
374.
So far as the situation of the producers was concerned, the experts analysed it by reference to national groups.
375.
With regard to the Swedish producers, the experts found that they qualified for a government stock incentive scheme. Financing was based on the value of stocks and therefore any fall in prices led to a decrease in the aid granted.
376.
With regard to the United States producers, some of whom had, however, been building stocks, the experts emphasized the strength of demand on the United States market in 1976 and the high capacity utilization ratios. Apparent consumption of paper on the United States market during that period was at record levels, showing an increase of 32.8% on 1975.
377.
The buoyancy of the United States market was also beneficial to the Canadian producers, whose utilization ratios were reasonably high. In connection with the Canadian producers, Mr Fishwick also emphasized at the hearing that they benefited at the time from negative real interest rates. The cost of stock-building in those circumstances was therefore particularly attractive. Accordingly the experts consider that the Canadian producers had no interest in lowering prices having regard to the spare production capacity of the Swedish and Finnish producers, who would undoubtedly have followed suit. In that connection, when the Commission emphasized at the hearing that Table 3 annexed to the decision refers to average utilization capacity for individual producers, Mr Fishwick stated that he had not been aware of this. According to the Commission, the table in question shows that there was at least one Canadian producer with a capacity utilization ratio of 63% for 1976, which was incompatible with prices remaining at the same level. Mr Fishwick stated that if the table were read in that manner, it would certainly raise a question as to why a producer operating at 63% of capacity did not reduce his prices. But he emphasized that it would have been extremely dangerous even for such an undertaking to initiate a price war in view of the risk that the Swedish and Finnish producers, who also had substantial spare capacity at the time, might have followed suit.
378.
The experts further point out that the Finnish producers had substantial spare production capacity although the growth in their stocks was unaccompanied by offsetting subsidies as was the case in Sweden. The experts considered that, in view of the conditions prevailing in the four countries in question, the traditional theory of competition among a very large number of undertakings suggested that in spite of longer-term strategic considerations, Finnish undertakings would have been the first to cut prices. That theory was confirmed, in their view, by Table 6 annexed to the decision, which showed that Finncell began to cut announced prices for hardwood in the first quarter of 1977, followed by a similar reduction in the second quarter for softwood.
379.
The Commission has vigorously challenged that analysis of the Finnish undertakings' behaviour. It contends, in that regard, that over the same period Finncell discussed prices with other European producers within the framework of the Bristol Club, which is hardly consistent with a traditional theory of competition. It has also pointed out that all the producers began to reduce their transaction prices at the end of 1976 and the beginning of 1977, quoting, moreover, extracts from documents in which Finncell claims to have adopted a policy of following its competitors.
380.
The Commission's criticisms in that respect run counter at first sight to the indication in Table 6 of a fall in the prices unilaterally announced by Finncell during the first two quarters of 1977. Furthermore, Professor Neumann, whose opinion was submitted by the Commission, has pointed to that apparent fall in Finncell's prices, which was followed by a fall in the prices of two Swedish undertakings. His explanation of that fact is that it was the result of Finland and Sweden entering a recession, which, he claims, bears out the view that peaceful cooperation breaks down in times of economic recession.
381.
A careful examination of the documents before the Court, which I carried out earlier in this regard, shows that the data in Table 6 are inaccurate so far as concerns Finncell's behaviour at the beginning of 1977. As I said earlier, the Commission demonstrated in its defence, on the basis of telex messages, that the prices announced by Finncell remained unchanged for the first three quarters of 1977 contrary to what is set out in Table 6.
382.
There are two observations I wish to make in that regard.
383.
First of all, although I am aware of the considerable administrative burden entailed by this case, I find it regrettable that the decision contains inaccuracies which in the circumstances are far from negligible. I find it equally unsatisfactory that the defendant, in its observations on the expert's report, failed to remind the Court that the data in Table 6 concerning Finncell's prices for 1977 were incorrect.
384.
Secondly, the fact that two conflicting explanations could be given for data that is incorrect justifies a cautious approach to what may be deduced with any certainty from what is shown by economic arguments. Allow me simply to point out, however, that the experts appointed by the Court have shown, it seems to me, a degree of caution in explaining the conduct allegedly engaged in by Finncell at the beginning of 1977.
385.
The experts did indeed state that the theory of competition suggests that it was confirmed by the data in Table 6. But at the same time they noted that Finncell was ‘in a weak position to sustain a long-run price war’ and that the decision to cut prices was made ‘in spite of longer-term strategic considerations’. The experts acknowledged, moreover, that analysis of why prices suddenly fall after periods of stability is one of the least satisfactory elements in the economic model of pricing behaviour under oligopoly. In that regard, they raised the question why Finncell decided to cut prices given the oligopolistic nature of the market in the short term. They then went on to list the reasons which seem to have led the Finnish producers to take that decision.
386.
Although I thus find that the experts did not state that Finncell's unilateral reduction was unavoidable at the beginning of 1977, it must be observed that their conclusions are in any event ‘unusable’ in connection with that particular point since, contrary to the information incorrectly given in the decision, that reduction did not take place.
(e) The different aspects of price uniformity
387.
I shall confine myself to consideration of four of the five aspects of price uniformity contemplated by the experts. (
174
)
e.1 Uniform prices for the same grade of pulp
388.
In this context, the experts considered that for any category of pulp within which there is complete elasticity, there may be taken to exist a near-perfect market for the following reasons:
—
consumers are technically aware and are able to analyse and test the quality of the product;
—
long-term relationships between sellers and purchasers, in which each seller supplies most of his pulp to a few purchasers and each purchaser obtains pulp of a given grade from a small number of suppliers, constitute a pattern which gives rise to oligopoly and oligopsony;
—
concern on the part of customers to obtain pulp at the lowest possible price, in view of the fact that it accounts for 60 to 75% of the cost of paper;
—
market transparency resulting from contact on the part of any one purchaser with a large number of suppliers, the existence of integrated undertakings, ‘a well-developed informal network of information within the industry’ and the trade press.
389.
According to the experts, the principle of identical prices for identical products in a perfect market is not negated by differences in unit costs. Equality of prices results from the transferability of demand, which is independent of costs of supply. Under conditions of perfect competition, producers would supply additional units until opportunity costs were equal to the market price. On a competitive oligopolistic market, which fits some of the short-term market situations in the pulp sector, prices exceeded ‘opportunity costs’ but were equal for all suppliers.
390.
Let me point out first that, in reply to a specific question at the hearing, Mr Cockram stated that the phrase ‘well-developed informal network of information within the industry’ related to contacts between purchasers of paper pulp and not between the sellers themselves.
391.
The Commission's criticisms of that part of the report essentially reiterate certain objections which I have already considered (failure to examine the manner in which prices were announced, uniformity and simultaneity of announcements, reference to the perfect competition model, theory of short-term oligopoly, inadequate analysis of the level of prices). I therefore refer to my earlier observations on those points.
392.
Furthermore, the defendant considers that the experts failed to examine in their report whether the high degree of market transparency came about naturally or artificially. The Commission points out that the experts stated that transparency had worked uniformly in favour of sellers — by discouraging price cuts and facilitating price increases during a market upswing — and considers that the producers had every incentive to have recourse to artificial devices and that there was ample direct evidence of unlawful exchange of information between producers.
393.
I have already examined the Commission's analysis of the artificial nature of the transparency which is said to result from the system of price announcements. I shall return in due course to the question of the use in the contested decision of direct evidence of exchanges of information.
e.2 Uniform prices for different qualities of pulp
394.
The experts stated that, in view of the fact that pulp is not homogeneous, prices in a perfect market would be expected to vary according to quality. They pointed out that in 1975 and 1976, southern hardwood pulp was sold at a lower price than northern hardwood pulp.
395.
With regard to softwood, however, the prices announced for northern softwood and southern softwood — the latter being of lower quality — were the same in 1975 and 1976. A differential only became apparent in the first quarter of 1977.
396.
According to the experts, substitution of southern softwood for northern softwood (NBSK) requires a slowing-down of the production process or investment in new equipment, both of which imply the need for a price difference. The fact that there was no such difference in 1975 and 1976 may reflect the relatively recent introduction of southern softwood pulp into the Community, so that the need for a differential had not yet become established. The high level of demand in the United States and almost 100% capacity utilization of southern United States producers were probably other factors involved.
397.
The Commission has emphasized in that regard that if the use of southern pulp had the impact on the papermaking process referred to by the experts, the added cost should have been reflected in the prices. The defendant's objection would not seem to be wholly unfounded. It would have been helpful if during the oral procedure the experts had been able to explain the reasons which led them to suggest that explanation which, in their report moreover, is put forward as a matter of conjecture.
e.3 Uniform prices for different customers buying differing quantities
398.
The experts pointed out, on the basis of the invoices forwarded by the producers from British Columbia, that discounts offered on small orders were apparently greater than those offered on large orders. They explained that result by the willingness of regular customers to pay announced prices or prices close to the average prices in order to ensure supplies and by the fact that fidelity rebates would not be shown on individual invoices and might not be recorded for that reason. The Commission emphasized in that connection that those two explanations are mutually exclusive.
399.
I shall not dwell on this point since I consider that the Court will in any event have to annul the findings of concertation on transaction prices set out in the decision even if the Commission had not also called in question the existence of secret discounts as evidence of concertation on announced prices. In tracing the historical background to the period prior to 1975 on the basis of their interviews with pulp purchasers, the experts stated that papermakers welcomed at the time the existence of a uniform list price because their main concern was to ensure that they paid no more for pulp than their competitors. There was a widespread belief (
175
) that firm pulp prices helped to stabilize prices for paper and that pulp price reductions led to demands for lower paper prices. Purchasers were therefore in favour of high announced prices, which were known to their own customers, but were quick to exploit market weaknesses by negotiating confidential rebates that did not necessarily appear on invoices. Some were based on annual tonnages purchased and could not be calculated until the end of the year. It was even possible for a papermaker to receive a cheque, without any paperwork whatsoever, but understood to be for fidelity and long-term business. That situation is said to continue today.
400.
Professor Neumann considered that secret discounts were evidence of collusion whose existence, moreover, was established by the experts for periods prior to 1975 (
176
) since in the absence of collusion secrecy would not be necessary.
401.
From that point of view, the Commission stated during the written procedure that the grant of rebates by a separate credit note, as was allegedly done, would make sense only if the producers wished to give their competitors the impression that transaction prices were the same as announced prices and wished to conceal any deviation from the pricing policy of those competitors. In so far as each purchaser compares the net prices he has to pay to a potential supplier, genuine rebates cannot be concealed from the customer even if they are given some other designation. However, they can be concealed from competing producers who are unable to check whether a discount is justified to offset poorer quality or transport costs or whether it is a competitive discount.
402.
There can be no doubt, in my view, that the concealment of rebates may, in certain circumstances, be regarded as ‘cheating’ on concertation. Is that the only possible explanation? The applicants were at pains to challenge that conclusion, even though their own arguments are not always persuasive. That is the case, for example, with regard to the producers' concern to prevent their competitors from discovering a rebate in an attempt to regain the customer. A customer can after all always disclose to the supplier's competitors the actual price he has paid, whether or not the discount appears on the invoice. However, I would attach more weight to the explanation that the concealment of a rebate may reflect the intention of the seller or the customer — or both — to conceal the rebate from the latter's competitors, since the seller has no wish to grant such a discount again and the purchaser wishes to retain his competitive advantage. However, that explanation presupposes that purchasers show their invoices to one another, which clearly raises other questions as to the reasons for a practice of that kind. I would simply point out that from a document produced during the proceedings the — no doubt tenuous — inference may be drawn that the practice of separate credit notes does not necessarily reflect the will of the sellers themselves. (
177
)
403.
Let me say, moreover, that, in support of its view that the practices in question afford evidence of concertation, the Commission considers it unsurprising that most of the applicants refuse to allow other producers to inspect their invoices and related documents. In my view, that is a bold interpretation, with regard to which the producers from British Columbia have very humorously pointed out that had the producers permitted such inspections, the Commission would no doubt have viewed this as evidence that they had been in the habit of exchanging information.
e.4 Uniform prices in US dollars for customers in different countries
404.
According to the experts, in paragraphs 136 to 140 of its decision, the Commission considered that the producers had foregone the opportunity to exploit differences in market conditions in different Member States. In their view, that analysis is incorrect. In the first place, if there was no barrier to resale, international trade (arbitrage) would eliminate any price differences between the different States. Secondly, the absence of collusion is evidenced precisely by the absence of price differences between Member States. An international structure of different prices would have been possible only if it had been collectively implemented. In the absence of an effective cartel, embracing all existing and potential suppliers, and of barriers to resale, international price discrimination would be impossible. In the absence of collusion, prices would therefore be the same even in market segments with different demand conditions.
405.
In its written observations, the Commission considered that the experts had essentially addressed the issue of the effect on competition between Member States, disregarding the question whether the use by the producers of the United States dollar was a result of the natural operation of the market. For my part, I have already considered the argument concerning the use of the dollar by all the producers. Let me point out, moreover, that paragraph 99 of the decision, which contains an economic analysis of price parallelism, refers to the differences in demand conditions between the European States in support of the view that uniformity of prices cannot be explained without concertation. In that passage the Commission seems at first sight to be suggesting that, in the absence of concertation, prices should have varied from one Member State to another.
406.
In my view, however, it is impossible to elicit any decisive indication of the absence of concertation from the experts' conclusions in that regard. Admittedly, the fixing of prices which vary from one State to another may be regarded as constituting a highly organized form of cooperation between undertakings, which is designed to maximize profits on each ‘national segment’. From that point of view, the absence of differences in price between Member States may serve to demonstrate that there was no such cartel on the pulp market with an organized strategy in order to maximize profits. However, the absence of differences in price in no way proves that there was no concertation. Common sense suggests, surely, that a single price may be far easier to fix or to ‘apply’ by the participants in a concerted practice. Accordingly, the most that can be said, in my view, of that part of the report, is that the absence of price differences between the different countries could be explained in theory by the absence of any barrier to resale and does not therefore necessarily constitute evidence of concertation. Mr Fishwick has stated that he ‘understood’ that the clauses precluding export and resale were inoperative. In addition, certain applicants contended in the written procedure that because, in particular, of transpon and storage costs, arbitrage was relatively unattractive. Mr Fishwick disagreed with that statement on the ground that any differences in price would be cleared by arbitrage on the part of papermakers who purchased pulp for use in different parts of the Community and that, in any event, even the threat of arbitrage would be sufficient to prevent any differential pricing.
(f) Concertation or market conditions?
407.
Under this heading, the experts stated that although price uniformity could be explained as a natural consequence of the structure and trading conditions of the pulp market, that does not per se prove that there was no concertation. In a passage which I consider should be cited in its original version, Mr Cockram and Mr Fishwick expressed themselves in the following terms:
‘Transparency and interdependence provide conditions likely to induce some collusion, but there are several indications from our analysis of the wood pulp market between 1975 and 1981, that any collusion which occurred was limited in its effects’.
408.
According to the experts, the following factors were involved:
—
the existence of actual and potential competitors from outside the group of undertakings alleged to have taken part in concertation was sufficient to ensure fair trading;
—
changes in market shares between undertakings which point to the lack of quotas and indicate competition between them;
—
the absence of differences in prices between different countries, although a cartel would have attempted to exploit differences in elasticity associated with different market conditions.
409.
Let me point out that, at the hearing, the experts were in fact asked whether they considered that the uniformity of prices was to be explained by concertation or by the natural operation of the market. Mr Fishwick reminded the Court — quite rightly, indeed — that it had asked the experts not whether concertation existed but whether the uniformity of prices could be explained by natural forces in the market, and added that the latter was the more probable explanation. In his view, the aforesaid factors would have thwarted any attempt to concert effectively. He pointed out, however, that those same factors may have been consistent with ineffective collusion.
410.
I consider that the existence of competitors from outside the group of addressees of the decision and the changes in market shares call for two series of observations in that the decision seems to me manifestly ambivalent on those points.
f.1 Undertakings that were not involved in the procedure
411.
It should be borne in mind, first of all, that, as is clear from the decision itself, its addressees accounted for approximately 60% of total consumption of bleached sulphate pulp in the Community. Certain applicants, in particular the members of KEA, regarded as implausible the Commission's view that concertation took place between the producers covered by the procedure. They contended that the defendant was unable to explain how concertation could have worked since producers accounting for 40% of production could have constituted an alternative for papermakers if concertation had existed between the undertakings covered by the decision.
412.
The Commission's explanations in that regard are far from clear. In its defence, it stated that the producers in question were Outsiders' who usually sold only small quantities of pulp and were not regarded by papermakers as an alternative source of supply to the addressees of the decision. Historically, it says, the pulp market in the Community was influenced by the addressees of the decision and not by the ‘outsiders’ who could regularly be expected to be followers.
413.
I would note at the outset that it is a priori surprising that producers accounting for 40% of consumption should, taken together, be described as ‘outsiders’, with no further qualification other than the bald statement that they sell small quantities.
414.
In any event, the Court will find it impossible on the basis of the information submitted by the Commission to determine which undertakings supply the 40% share of Community consumption which is not accounted for by the addressees of the decision. In reply to a number of questions from the Court, the Commission explained, in the first place, that most of the producers who were addressees the Statement of Objections but were not the subject of a finding of infringement sold only small quantities of bleached sulphate pulp or did not manufacture it, and secondly that the producers who were never involved in the procedure and whose invoices it had checked dealt entirely, or almost entirely, in a product other than bleached sulphate pulp. Therefore, the Commission did not deem it necessary to pursue enquiries into their pricing policy. In the light of those explanations, all I would say is that the Commission's analysis of the market is quite inadequate so far as concerns the composition of supply on the pulp market.
415.
My second observation concerns the defendant's statement that outsiders can regularly be expected to be followers. It is legitimate, therefore, to raise the question why they were not involved in the procedure since the announcement of a price which is the same as that of their competitors constitutes, according to the Commission, direct evidence of participation in concertation. In reply to a written question from the Court, the Commission stated that ‘on the basis of the invoices and the other information then available to it... these producers did not appear to have been involved in the public announcement of quarterly prices or to have otherwise participated in concerted practices’. I have also noted the strongly-worded statements in the Commission's rejoinder in which, in connection with the allegation of discrimination, it claims to have no evidence against any producers other than the addressees of the decision and invites the latter — somewhat rhetorically — to produce such evidence.
416.
In my view, however, there would seem to be some difficulty in reconciling the assertion that outsiders can regularly be expected ‘to be followers’ — which presupposes at the very least that their behaviour is known — with the assertion that the Commission lacked sufficient information regarding their trading policy.
417.
Let me make it quite clear that I am not entirely convinced of the logic of the Commission's analysis.
f.2 Changes in market shares
418.
The Commission observes that the shifts in market shares (
178
) between 1975 and 1981 do not constitute evidence that there was no concertation. It should be noted, however, that the reasoning in the decision on that point demonstrates exactly the opposite of what the Commission purports to prove. Paragraph 105 states that the shifts in market shares were far less marked at times when the undertakings charged uniform prices than at other times. For example, the average changes in the respective shares of Finnish, Swedish, Canadian and United States undertakings were 0.97 percentage points from 1975 to 1976 and 0.86 percentage points from 1980 to 1981. From 1978 to 1979, on the other hand, those changes were 2.06 percentage points and, from 1979 to 1980, 2.17 percentage points. As the Court will find, the latter figure, which thus represents according to the Commission the largest shift in market shares, relates to a period in which the defendant in fact considers that there was concertation on transaction prices. The decision on that point is not consistent.
419.
Doubtless, the Commission is entitled to argue that the concertation it is taking issue with did not eliminate all competition between the producers. The shifts in market shares alleged by the applicants may, conceivably, not be incompatible with concertation at least on announced prices. In that regard, I share the view expressed by the defendant in its rejoinder to the effect that announced prices must be considered as such to be a feature of competition on the pulp market. The fact remains, nevertheless, that the finding of concertation on announced prices over a long period (1977 to 1978) in which the undertakings behaved competitively as regards transaction prices for softwood pulp in any event again raises serious questions concerning the role which the system of price announcements played, according to the defendant. As the Commission states in its defence: (
179
)
‘Under the conditions prevailing in the pulp market, the communication of “list prices” on a quarterly basis to customers and agents and the giving of information to the trade press about such “list prices” are likely to impede active price competition between producers. Information about “list prices” is sensitive information when the prices actually charged usually correspond to the “list prices”. Making available such information in advance to competitors — directly or indirecdy via third persons — is likely to influence the pricing policy of these competitors if they can assume that the “list prices” will be the prices actually charged later on’.
420.
Accordingly, the appropriateness of that analysis for the periods in which transaction prices were in substance very different from announced prices is at first sight highly questionable.
421.
Furthermore, the changes in market shares led the experts to regard it as an indication that the producers did not have quotas. At the hearing, the Commission pointed out that, in this case, the producers had adopted a ‘weak’ or moderate form of collusion, leaving in place some possibilities for competition. It stated that it had never suggested that there was a formal cartel with regard to production quotas, a complex monitoring arrangement or penalties. That contention prompts me to make the following observation.
422.
In its pleadings before the Court, the Commission's position as regards the existence of a quota system was a singularly ‘floating’ one. (
180
) In certain passages it seemed to be taking the view that such a system had not been necessary, but in others it clearly alluded to the existence of that type of partitioning of the markets. Thus, in reply to the argument of the North American producers and, in particular, the members of KEA, according to which the fact that they had higher capacity utilization ratios than the other producers and — in the case of the United States producers — increased their share of the market is incompatible with collusion, the defendant emphasizes that:
‘It may be said that no cartel is ever perfect and within a cartel there is no reason why quotas should not be expected to change if circumstances change. In fact, low-cost producers (as the US producers were up to 1981 due partly to the weakness of the dollar) will always be in a better bargaining position vis-à-vis other cartel members for everincreasing quotas’.
423.
I do not believe I am straining the language used by the Commission in stating that the reference to a quota system is evident.
(g) The pulp market before 1975 and after 1981
g.1 The market before 1975
424.
On the basis, in particular, of interviews with pulp purchasers, the experts stated that during the 1950's and the 1960's the market, which was composed of a small number of suppliers and a relatively large number of customers, was ‘closely controlled’, a situation which was supported by influential purchasers. In 1975, that ‘controlled’ market had already given way to the competitive market governed by the laws of supply and demand which exists today. The experts considered it quite possible that some ‘vestiges’ of controlled-market thinking were still present in the minds of the more traditional sellers and purchasers, but that their ability to exert control had already been severely weakened by 1975.
425.
At the hearing, when requested to explain the significance of that somewhat cryptic passage, Mr Cockram stated that for most of the 1950's the sellers at the time — namely the Swedish producers, Finncell and some other European producers — would in all probability not ‘have stood up to the sort of competitive regulations which have been introduced since’. The expert pointed out that those sellers were still operating in the 1960's and the 1970's. He emphasized that there was no exact answer to the question when the market ceased to be closely controlled and became an open market of the kind which exists today. There was a ‘large grey transition area’ and it was impossible to point to a particular year as the year when the market became open.
g.2 The market after 1981
426.
After referring to the gradual changes in the features of the pulp market, (
181
) the experts examined the consequences of the undertaking which provides, let us remember, that the signatories are to fix their prices ‘until further notice’ and to effect at least 50% of sales at prices expressed in the purchaser's currency.
427.
Since the implementation of the undertaking in 1985, the market has undergone a prolonged upturn (1986 to 1989) and a downturn (since 1990). According to the experts, the undertaking has led to a fundamental change, namely the introduction of a minimum degree of short-term price adjustment, not previously present. In view of the use of several currencies rather than only the dollar, as was the case before, there are regular, well-defined steps for purchasers to push prices down or for sellers to push prices up. A whole new mechanism has been established. When the market is weak, prices tend at best to remain constant in the weaker currencies and when the market is strong, they tend at least to be constant in the stronger currencies.
428.
In its observations, the Commission considered that that situation constituted an improvement for customers by comparison with that which prevailed during the period covered by the decision.
429.
At the hearing, Mr Cockram was asked to explain that description. He stated that the price of pulp changed owing to the use of several currencies. In strong market conditions, prices tend to be adjusted to the highest level and in weak market conditions, they tend to be adjusted to the lowest level. Thus, between 1985 and 1989, when the market was strong and the dollar was weak, prices for pulp rose in thirteen consecutive quarters. Since 1989, when the market has been weak, prices have constandy been reduced. Mr Cockram also confirmed the existence of a factor described by some applicants at the hearing as the ‘zigzag effect’ which is as follows: if a currency used in a transaction has weakened in relation to another, the sellers using the first currency rely on that depreciation to increase their prices in that currency on the ground that the purchasers are in any event willing to pay a higher price in the second currency.
430.
With regard to trends in the period subsequent to 1981, the experts considered that the following market factors had remained unchanged:
—
in a strong market, announced prices change on a roughly quarterly basis and act as an upper limit for transaction prices;
—
those announced prices are well known to all sellers and purchasers, as well as to other interested parties, through direct sources and the specialist press;
—
at the peak of the market, there is a period of stability followed by discounting from the announced price;
—
when the ‘record’ announced price (‘peak list price’) finally loses market credibility, it is lowered, but never enough to be a realistic indication of transaction prices, as it is in a strong market;
—
at all times, sellers and purchasers interact very quickly in response to any short-term price differences which arise between various countries or currencies;
—
both parties have increased the sophistication of their monitoring systems in order to overcome the reduced transparency of the market.
The Commission has criticized the expert's report in that regard for examining only trends in announced prices.
Conclusion
431.
After that lengthy examination, a concise conclusion is called for.
432.
The experts considered that uniformity of prices on the wood pulp market could be explained by the natural operation of the market. However, their conclusions raise a number of questions since some of the fundamental points are based, as we have seen, on an analysis of the features of the wood pulp market which are far from established beyond question in the light of the information before us.
433.
In those circumstances, the Court may find it difficult to base its judgment on the report compiled by Mr Fishwick and Mr Cockram.
434.
At the same time, however, the discussion has shown that the Commission's view clearly has its weaknesses. The partial analysis of the composition of supply is not the least of them. In addition, it may be recalled that in its assessment of the transparency of the market the Commission undoubtedly underestimated certain features of the pulp market. It is not always clear that the defendant is consistent in its views as regards, in particular, the role which the system of announcements played in the concertation. Accordingly, there are a number of ‘shadowy areas’ and contradictions in the Commission's reasoning. Can that reasoning therefore be such as to support the findings in the decision regarding the participation of each of the addressees in a concerted practice? In any event, that conclusion presupposes in this case that the presumption based on parallel conduct ‘stands up to’ the individual arguments of each applicant. If the Court were to undertake such an investigation, it would discover at once that there are a number of defects in the contested decision, to which I now turn.
1.4. The statement of reasons in the decision
435.
The contested decision would seem to be vitiated by a serious defect as regards the method adopted by the Commission to establish the individual participation of each addressee of the decision in the general concertation on prices. (
182
)
436.
Let me begin by stating that, in the general part of the rejoinder concerning the definition of the concept of ‘concerted practices’, (
183
) the Commission considers that ‘the participation of each party in a concertation may be established by the observed similarity of its behaviour to that of the other enterprises, and by the fact that such similarity or “parallelism” cannot be dismissed purely as the intelligent adaptation to the existing or anticipated conduct of competitors’. (
184
)
437.
It should be noted that whereas parallel conduct may constitute evidence of concertation, the Treaty does not preclude each undertaking from adapting itself intelligently to the existing or anticipated conduct of its competitors. (
185
)
438.
Although in the contested decision the Commission considers that there is no valid economic explanation for parallel conduct, the statement of reasons in the decision precisely fails to set out a systematic and individual exposition, undertaking by undertaking or association by association, followed by the express conclusion that the addressee in question has been unable to prove that the similarity of his conduct to that of his competitors cannot be regarded as such an adaptation. The lack of individualization in the decision in that respect leads, in this case, to unacceptable consequences so far as concerns the statement of the reasons for the individual participation of each producer in concertation. In so far as the Commission considers that it is for the producers to prove that their conduct is not merely adaptation to the conduct of their competitors, it has to be borne in mind that the decision marks the culmination of a prior administrative procedure intended to give the producers an opportunity to state their views on the complaints communicated to them. In this case, in my view, it would have been necessary, at the very least, for the Commission in the statement of reasons, to examine, perhaps concisely, but expressly and individually, undertaking by undertaking or association by association, the arguments put forward by each of them. From that point of view, it transpires from the documents before the Court that several applicants had indeed put forward explanations, either in reply to the Statement of Objections or at the administrative hearing, with a view to demonstrating that their own conduct was based on a rational and independent attitude or that, in certain cases, relying on the opinions of economists, parallel prices could be explained on grounds other than concertation. There is no doubt that all the addressees of the decision likewise furnished justification for their conduct and, if their arguments were particularly concise on that point, the Commission could precisely have made a finding to that effect.
439.
It is, for example, entirely pertinent to state that although it is only in the rejoinder that the Commission examined and rejected the economists' opinions produced by the applicants, those of Professors Hart, Jacquemin and Phlips (
186
) had been available to it since the administrative procedure.
440.
The solution adopted in the contested decision means that a trader who has announced the same price as that of certain competitors for one or more quarters is fined, even though the Commission has not even expressly and individually refuted the arguments put forward by him in order to prove that his conduct was the result of intelligently adapting himself to the market having regard to his own particular circumstances.
441.
That failure to examine the addressees' arguments individually in the contested decision certainly cannot be justified by the case-law of the Court, according to which the Commission is not required to discuss in its decision all the issues of fact and law raised by the producers during the administrative procedure. (
187
) According to the defendant, the most important issues raised by the applicants were examined in the contested decision. It must be observed, however, that the contested measure in any event contains only an overall analysis, and the Commission did not carry out an examination setting out expressly and individually the arguments of each addressee.
442.
Having acted in that way, the Commission is not entitled to take the view, in this case, that it has established in a satisfactory manner the individual participation of each addressee in a concerted practice.
443.
In his opinion in Hasselblad v Commission, (
188
) Advocate General Sir Gordon Slynn stated as follows:
‘What is important is that the Commission should set out the facts and reasons upon which the decision is based so that they can be reviewed. The Commission has to make findings of fact rather than necessarily to set out the conflicting contentions as evidence as to the facts. There may be cases where fairness requires that both versions are set out and analysed: it is in any event somewhat cavalier to make no references to the principal contentions of the company under investigation even when those contentions are rejected. It is in my view better that brief reasons are given why the principal contentions are rejected even though all arguments raised do not have to be dealt with’.
444.
The cases referred to by the Advocate General clearly include a situation in which the Commission relies on a presumption. Such a method of establishing infringements of the Treaty must be carefully defined in order to remain consistent with the requirements stemming from the fundamental rights with which the Court ensures compliance in competition proceedings. (
189
) In that regard, it is impossible to overlook certain sharp criticisms which have already been levelled against Community competition law. Thus, according to one recent article: ‘Those pecuniary penalties may be imposed on undertakings, even though the infringement has not actually been proved, by applying the doctrine of multiple evidence. Where an action, or even an omission, has an anticompetitive effect, that is sufficient under competition law to impose a penalty on the parties concerned. In my view, that runs counter to the elementary principles of the rights of the defence, since an administrative penalty must, in those circumstances, like a criminal penalty, be imposed having regard to the complaints established and not only on the basis of firm beliefs. More serious still, the fines decided upon by the Conseil de la Concurrence and the Commission in Brussels are at times imposed on the parties concerned who have not been able to furnish evidence of their innocence. The burden of proof seems to be reversed since the existence of parallel conduct constitutes sufficient evidence of a cartel, and it is thus up to the undertakings to adduce proof to the contrary’. (
190
)
445.
No doubt if competition law is to be effective, evidence in the form of a presumption based on parallel conduct must be accepted. But the Court must then ensure that the requirements applying to the statement of reasons for any decision based on such an approach are strictly complied with.
446.
From that point of view, the failure to examine expressly and individually the arguments of the addressees of the decision is a dangerous path in so far as the rule of law in the Community is concerned.
447.
It serves no purpose to invoke the administrative burden which such an examination in the decision would impose on the Commission. The Commission must in any event reply to the arguments of each of the addressees where the decision is the subject of an action and the Court, for its part, is then inevitably bound to examine individually the arguments put forward by the applicants. A composite approach of the kind seen here is unacceptable. It is for the defendant institution to give reasons for its findings that Community competition law has been infringed and it is for the Court to review the manner in which the Commission has accomplished its task in that respect. To take the opposite view would be tantamount to disregarding both the most elementary rights of the defence and the very function of the Court of Justice. In this case, the Court will have to examine directly whether the explanation given by each of the applicants for its conduct can be regarded as constituting a satisfactory alternative to the allegation of concertation, even if the decision contains no express and individual examination of the applicants' arguments. That prospect in itself bears witness to the inadequacy of the decision. Besides, the Commission — far more than the Court — has the means to reply to the complex economic justifications put forward by the producers concerned, particularly on the basis of the statistics for the sector in question which are at its disposal, economic surveys and the results of the investigations which it has been able to carry out.
448.
In his work entitled ‘Les droits de la défense et le droit communautaire de la concurrence’, (
191
) A. Pliakos draws attention to the fact that
‘not to refer in a decision to the submissions of the parties may be tantamount to authorizing the Commission to rely simply on vague and general findings or, more serious still, to shift the debate to the courtoom, which, apart from reversing the burden of proof is such as to render holding an adversary procedure purely and simply meaningless’. (
192
)
I find that, in view of the failure to examine the specific arguments of each party expressly and individually, the nub of that criticism is pertinent in this case.
449.
Other authors emphasize that the rights of the defence
‘would be manifestly disregarded if the undertaking, in order to ascertain the Commission's response to the arguments it has put forward, had to institute proceedings before the Court of Justice, without being able to refute in the preliminary procedure a response which never came and of which it takes cognizance at best only on receipt of the Commission's formal reply. If, on the other hand, the Commission was obliged to reply, that would inevitably redound to the benefit of the quality and persuasiveness of its decision. If the undertaking's submissions are not well founded, the Commission will easily be able to refute them. If they are well founded, the decision will be different. In either case, the situation will be far more satisfactory: first of all for the Court, which will be better informed and will find it easier to exercise its power of review; for the Commission which, in view of the discipline to which it is subject, will have a better grasp of the situation in fact and law and, finally, for the undertaking whose lawful rights will be protected’. (
193
)
450.
In this case, a specific, even if summary, indication of the grounds which led the Commission to reject each addressee's explanation of its conduct was essential for two reasons. First of all, an addressee found to have committed an infringement must be able to ascertain that the decision contains a minimum express and individual examination of the arguments put forward by him during the administrative procedure, which justifies the finding that his own conduct is deemed to constitute participation in a concerted practice. Secondly and above all, by acting as it did, the Commission prevents the Court from exercising in a satisfactory manner its power to review the assessment which led the Commission to reject the individual explanations of each addressee. The Commission has thus disregarded the two aims which, according to the consistent case-law of the Court, are inherent in the requirement of a statement of reasons. (
194
)
451.
Admittedly, that case-law reveals a flexible and graduated approach to that requirement. The Court has consistently held that the extent of the duty to provide a statement of reasons under Article 190 of the Treaty depends on the nature of the measure in question. (
195
) A regulation of general application cannot be required to state in minute detail the reasons which led to its adoption. A Commission decision in the field of competition is another matter entirely, particularly where it orders a trader to pay a fine and is therefore manifestly of a penal nature.
452.
I therefore consider that, in the absence of a specific and individual examination of the arguments of each undertaking or association in a form which, whilst being consistent with the constraints inherent in administrative action, would nevertheless satisfy the need for reasons to be given for individual findings of infringement, the contested decision does not satisfy the requirement as to statements of reasons imposed by the Treaty so far as concerns evidence of the specific participation of each addressee in the general concertation on announced prices referred to in Article 1(1) of the decision.
453.
Since the presumption based on parallel conduct is affected by those considerations, what of the allegation of direct or indirect exchange of information, which is referred to in the decision?
(2) Direct and indirect exchange of information
454.
In paragraph 106 et seq., the decision refers to different kinds of direct and indirect exchange of information between the producers. The Commission's findings in paragraphs 107, 108 and 109 call for a number of preliminary observations. I have already considered the Commission's view that the system of price announcements constituted an indirect system of exchanging information between the undertakings (paragraph 108) and its conclusion that the close succession or even simultaneity of announcements would not have been possible without a ‘constant flow of information between the firms concerned’ (paragraph 107). As I said earlier, I am by no means wholly convinced by those arguments.
455.
With regard to the statement that the exchange of information on prices between North American producers within the framework of KEA and between producers of hardwood pulp within the framework of Fides was not only part of the general concertation on prices but also constituted a direct infringement of Article 85 (paragraph 109), I have already pointed out that it seems to me to disregard the principle of non bis in idem.
456.
Finally, the Commission refers to the telexes mentioned in paragraphs 61 to 70 of the decision, stating that in its view that documentary evidence proves that those meetings took place. Whilst that constitutes only indirect evidence, based on information supplied by customers, it is reliable since it comes from purchasers, who are generally very well informed. Still according to the decision, that evidence is corroborated by information from a variety of sources relating to different periods.
457.
The Court has asked the Commission what precise conclusions it drew from the telex messages reproduced in paragraphs 61 to 70 of the decision, and to specify to which producers and in respect of what periods those conclusions applied. The Commission's initial reply was as follows:
‘The conclusions drawn by the Commission in the decision from the telex messages, and also from the other documents and statements referred to at paragraphs 61-70 of the decision, are set out at paragraphs 106 and 110.
The telexes in question (paragraphs 62, 63, 65 and 68-70) either constituted internal documents within a producer, evidencing an extensive exchange of information between producers as to their commercial assessments of, and intentions on, the markets for wood pulp in the EEC, or in some cases constituted the actual exchange of information between the producers. As is clear from a comparison of the dates of the telexes or other documents concerning price announcements and the dates of the relevant announcements (Table 6 of the decision), the information was passed between the producers concerned at almost the same time as the price announcement, and in one case at least the day before the announcement (decision, paragraph 69, referring to Westar's (then BC Timber) price for the first quarter of 1976). (It should also be recalled that Weyerhaeuser and ITT Rayonier were both members of the KEA, market information passing through them could be expected to be made known to all other KEA members, this being one of the purposes of the KEA).
The Commission considered that these contacts between producers, evidenced by all the documents mentioned at paragraphs 61 — 70 provided independent support for the Commission's economic assessment that the uniformity of behaviour on announced and transaction prices was the result of concertation rather than independent competitive conduct. That conclusion was reached, in the first place, in relation to the undertakings that were specifically mentioned in the documents, and apply not only to the specific period covered by the document in question, but to the whole period for which the other available evidence indicated concertation by those producers on announced or transaction prices.
The Commission also considered this conclusion was material, though indirectly, in supporting its similar conclusions in respect of other producers not specifically mentioned in these documents.’
458.
Noting that the Commission had referred to certain paragraphs of the decision which did not indicate between which producers and in respect of what period the Commission had concluded that there had been concertation on the basis of the telexes set out in paragraphs 61 to 70, the Court put a further question to the Commission, in which it asked for those details to be supplied. The defendant replied as follows:
‘As explained above, the Commission's findings as to concertation in regard to prices were based on two distinct categories of evidence: first, the parallel conduct of the producers in regard to both announced and transaction prices and second the various kinds of exchange of individual price data (described at paragraphs 106 — 110). This second category of evidence — which includes the telex messages (and other documents and statements) set out at paragraphs 61 — 70 of the decision — was primarily relevant as corroborating (i. e. providing independent support for) the Commission's interpretation of the first category of evidence, namely that the parallelism of conduct was not the result of independent competitive behaviour by those producers but was instead the manifestation of a concerted practice in regard to price.
As the Commission stated in its original reply (third paragraph and fourth paragraph, passim) to the Court's question, the telexes and other documents were regarded, in the first place, as providing “independent support” for the Commission's conclusions “not only to the specific period covered by the document in question, but to the whole period for which the other available evidence (i. e. the evidence of individual announced prices (decision, paragraphs 22 — 23 and Table 6) and transaction prices (decision, paragraphs 24 — 25 and Tables 7 and 8) indicated concertation... on announced [or] transaction prices”; and this was so with regard both to the undertakings specifically mentioned in the documents, and (though indirectly) to producers not so specifically mentioned. As is implicit in the word “support”, the evidence referred to in these paragraphs played a secondary role. In all cases, findings of concertation on announced or transaction prices were primarily based on the actual price which each producer had announced, or applied in transactions, in a given quarter. In no case was a finding of concertation on announced or transaction prices made solely on the basis of the telexes or other documents set out in paragraphs 61 — 70.
It follows that the telexes and other documents were regarded as relevant (in the sense of providing support for the Commission's conclusions) to all the findings of concertation made in Articles 1(1) (announced prices) and 1(2) (transaction prices) of the decision.’ (
196
)
459.
I have seen fit to set out those passages in full, in order to make it perfectly clear that:
—
the exact conclusions drawn from those documents as to the producers between whom and the periods when they are said to establish concertation have not been communicated to the Court by the defendant;
—
in any event, according to the Commission, the documents in question provided independent support, corroborating the primary evidence based on the parallel conduct of all the producers for the whole of the period covered by the decision.
460.
My position is simple, clear and firm. As I said earlier, I consider that so far as the primary evidence based on parallel conduct is concerned, the statement of reasons for the contested decision is vitiated. Accordingly, the Court does not have to take into consideration matter which, according to the defendant, constitutes indirect evidence in determining whether it provides adequate support for all the findings in the decision. If the Commission states that in no circumstances was the conclusion relating to the existence of concertation on announced (or transaction) prices based exclusively on telexes or other documents referred to in paragraphs 61 to 70, it is quite out of the question, in my view, for the Court to take them into consideration if it adopts my analysis concerning the defects in the contested decision so far as the ‘primary evidence’ is concerned.
461.
The Court may, however, consider whether it is necessary to examine the extent to which the documents concerned provide a basis for justifying the findings in the operative part in whole or in part only as against the undertakings charged therein. Such an approach would presuppose that the Court itself determine the significance of certain documents where the Commission has not set out the exact inferences of concertation which it drew therefrom. That would call for some reflection on the role of the Court.
462.
Is it for the Court, in the light of the few documents set out in the contested decision, to draw specific conclusions in relation to the producers charged when such conclusions were not drawn by the Commission which preferred to rely on that information in support of a more general infringement? In my view, the Court's unlimited jurisdiction falls to be exercised, as Article 172 of the EEC Treaty shows, ‘in regard to the penalties’ provided for in Community decisions in matters of competition but not in regard to the evidence which may be set out in the file on the case. That jurisdiction implies a full discretion with regard to the penalty itself; for the rest, competition proceedings are proceedings for annulment based on the second paragraph of Article 173 of the Treaty. It is for the Court to review the legality of the contested decision, in particular the grounds which led to its adoption, and not to make, in the Commission's stead, specific findings which the latter has not set out in relation to the producers concerned.
463.
That is why I would advise the Court not to refer specifically to the documents mentioned in the decision, to declare that the statement of the reasons regarding parallel conduct is inadequate and consequently to annul Article 1(1) of the decision in relation to the applicants.
464.
But for the eventuality that the Court should decide to examine the documents in question in order to determine precisely what conclusions to draw from them, I shall consider their contents.
465.
To begin with, some of those documents refer to contacts between producers during a period earlier than that referred to in Article 1(1) of the decision. Concertation on announced prices was engaged in, it should be noted, according to the decision, as from 1975. The note referred to in paragraph 61 of the decision, sent by Canfor London to Canfor Vancouver and referring to a general meeting in Scandinavia, is dated 29 January 1974 and concerns prices for the first two quarters of that year. Besides, Canfor claims to have received that information through customers and the terms in which the telex is couched do not support the inference that Canfor took part in that meeting. (
197
) The telex quoted in paragraph 65 of the decision, from MacMillan headquarters to its London subsidiary, is dated 15 October 1973 and concerns prices for the first half of 1974. (
198
) Although the aforesaid documents cannot prove the existence of concertation several months after the contacts between producers which are referred to therein, they do reveal that during that period there were meetings between Scandinavian producers to discuss the fixing of prices.
466.
The telexes set out in paragraphs 63 and 64 and relating to the period covered by the decision also bear witness to meetings held for the same purpose by Scandinavian producers. That is so in the case of the document set out in paragraph 64, which is entitled ‘Pulp market report for the UK’ and, according to the decision, was prepared for the sales conference of Svenska (
199
) held on 16 September 1977. According to that report ‘It is known that meetings are due to take place in Scandinavia for decision towards the end of the month — which is expected to result in further price reductions. One would hope that this can be restricted to USD 15, but there is strong opinion that it could be USD 20 to 25’.
467.
That document must be viewed in connection with the document referred to in paragraph 63, dated only seven days earlier, in which MacMillan London informs MacMillan Canada that ‘we hear that meetings will be held in Stockholm in next two weeks to determine Swedish/Finnish attitudes on pulp prices and expect that Finns will press point that their 3% devaluation leaves no room for significant reduction’. MacMillan claims to have received that information from a customer, a plausible explanation in view of the terms in which that telex is couched, which in my view does not establish the participation of that Canadian producer in meetings which, on the other hand, may well have taken place at least between the Swedish and Finnish producers.
468.
Finncell annexes to its application the telex quoted in paragraph 63 and points out that it also states that ‘we know of other Swedes already quoting very low levels’ and ‘some Swedes seem intent on using devaluation as opportunity to increase their pulp market share’, passages not reproduced in the decision.
469.
Although those statements may indeed prove that there was competition between some of the Scandinavian producers, the fact remains that, as the part of the telex quoted by the Commission in its decision demonstrates, contacts probably took place between Scandinavian producers in order to establish a common attitude with regard to prices.
470.
Paragraphs 68 to 70 of the decision refer to contacts between senior staff of Finncell and an employee of Cancel (formerly Westar). First, a telex was sent on 9 September 1975 by a Cancel employee, a Mr Huff, to a senior employee of Finncell, a Mr Londen, about the price announcements which had just been made for the fourth quarter of 1975. An identical telex was sent on the following day to another senior employee of Finncell. By a telex of 27 November 1975, Mr Huff then notified Mr Londen about Cancel's price announcements which were to be made on 28 November. The final document is a copy of a telex from Finncell to its agents, sent by Mr Londen to Mr Huff, stating that ‘the only sensible course of action to the benefit of the industry and trade as a whole are gradual price increases... because of the market situation we have felt, however, that an unchanged price level coupled with strong curtailments is the only alternative for the time being’.
471.
In its application, Westar states that its employee was a personal friend of the Finncell executive to whom the information was sent and that this person, who was a salesman in Westar's Brussels office, had no authority to fix the amount of the prices announced by Westar. Furthermore, the Commission had omitted to mention a fourth telex from Cancel Canada to Cancel Brussels (
200
) dated 16 May 1975 and cited in the Statement of Objections, according to which a Finncell manager had informed Cancel Brussels that Finncell had just announced unchanged prices for the third quarter. That telex went on to say that ‘if this price announcement is matched by major Scan producers before May 30, I would hope that our BC [British Columbia] friends will follow suit. I recommend that we maintain our present pricing policy for the third quarter and that we announce in Europe on May 30...’. According to Westar, that telex shows that there was no concertation since its Brussels employee had been uncertain either as to what prices would be announced by the Scandinavian producers other than Finncell or as to the attitude of British Columbia, and had recommended the retention of the price of USD 415 (softwood, zone 1) previously in force for the second quarter of 1975 even though Finncell had maintained for the third quarter its price of USD 450. Finally, on the same day, PPI Newswire Service informed its readers that the Finnish producers had announced an unchanged price of USD 450, which deprived the information set out in the third telex of any significance.
472.
Westar also relies on the fact that the 1975 telexes were subsequent to Finncell's price announcements for the quarters in question. With regard to the third telex sent by a senior employee of Finncell to Westar, the latter may already have known Finncell's prices for the fourth quarter of 1976 since they had been announced on 9 August 1976.
473.
For my part, all I shall say is that the exchanges between Westar and Finncell are in any event manifestly inconsistent with independent commercial behaviour between competitors. As regards the alleged friendship between the employee of the one producer who sent the telexes to the employee of the other producer, it is scarcely convincing in view of the fact that the copy of the September 1975 telex was in any case sent to a Finncell executive other than the one who allegedly enjoyed a personal relationship with Westar's employee. Besides, the telex sent by Finncell to Westar clearly reveals the pricing policy which Finncell considers is to be pursued in the future.
474.
Next, let me point out that the decision quotes in paragraphs 26 and 27 two telexes which, according to paragraph 111, prove that certain addressees of the decision aimed ‘to establish a uniform price level for their products independendy of market forces’. The first telex is that dated 19 November 1975 from Finncell to its subsidiary in Belgium, according to which ‘our main aim is stability and an internationally uniform price level for pulp from all sources of supply...’ (paragraph 26). In my view, it is scarcely fortuitous that the aim expressed therein of ‘stabilizing’ prices involves, so far as might be considered necessary, concertation with other producers. Nor could the most fertile imagination provide an ‘innocent’ explanation for the telex of 16 December 1977 from SCA to its subsidiary in Italy, according to which ‘Kraft Exponer Association (KEA) in an attempt to support the Scandinavians have this week announced their first quarter 1978 prices for Western Europe’. In that regard, one can but note that, according to Table 6, the price announced by KEA for that quarter was the same as that of five of the seven Swedish producers referred to, including SCA itself.
475.
A final point is that Borregaard, a Danish producer who is not an applicant in this case (
201
) and was found to have participated in general concertation on announced prices in 1977 and in concerted practices within Fides, informed the Commission in January 1978 that ‘we receive and supply market information concerning prices of various pulp on the international market. This information was obtained from friendly customers and competitors alike’. Let me point out, in any event, that, with the exception of prices for the first quarter of 1978, announced prices for Borregaard, which are set out in Table 6 (hardwood, zone 1, for the third quarter of 1976 and three out of four quarters in 1977), are generally the same as those of several, if not all, the Scandinavian producers.
476.
Having regard to the contents of those various documents, it is for the Court to determine the extent to which it would be able to draw specific conclusions as to concertation by the producers in question, an exercise which, as I have said, the Court does not seem to me to be required to carry out. Although the defects in the decision as regards the requirement to state reasons and, consequently, as regards the requirement of due compliance with the law lead me to advise the Court to annul it so far as concerns general concertation on announced prices by the applicants, I am not entirely satisfied in the light of some of the evidence in this case. My dissatisfaction is scarcely mitigated by the fact that the decision also established specific infringements relating to concertation within Fides and KEA, to which I now turn.
III — Concertation within KEA
477.
Article 1(3) of the decision refers to concertation within KEA (
202
) on both announced and transaction prices and to the exchange of individualized data concerning prices for deliveries to addressees 8 to 16 of the decision. (
203
)
478.
With regard to concertation on transaction prices, the Commission had obtained, as we have seen, from certain members of KEA, so-called ‘representative’ invoices in the course of its investigations preceding the Statement of Objections. In their reply, the applicants who are members of KEA maintain that those invoices related only to the period from 1974 to 1978, that some producers (Chesapeake, Mead and Scott) did not submit any invoices, and finally that the other producers did not submit sufficient invoices to be regarded as representative. (
204
)
479.
It is indeed plain from the first expert's report that the addressees of the decision from whom the Commission had obtained the largest number of invoices at the time of the Statement of Objections were precisely members of KEA. But it does in fact appear that the defendant did not have any invoices for Chesapeake, Scott and Mead and had only three invoices from Crown Zellerbach and four from IPS. (
205
) Furthermore, the expert's report confirmed that none of the invoices in question carried a date beyond the end of 1978. In that regard, the operative part does not specify the period in respect of which there was concertation within KEA. With regard especially to concertation on transaction prices within KEA, paragraph 120 of the decision states that, generally speaking, KEA's recommended prices were observed at least in 1975 and 1976. Paragraph 121 goes on to state that in 1977 and 1978 there might have been a discrepancy between the recommended price and the price charged. From that, the applicants inferred in their application that the Commission had acknowledged by implication that for the other years and, in particular, from 1979 to 1981, the members of KEA did not engage in concertation either with each other or with their competitors. The defendant strongly disputed that inference, pointing out that it was not in possession of the necessary information as to KEA recommended prices for 1979, 1980 and 1981, a period in which the simüarity of prices charged by the members of KEA suggests that such recommended prices existed and were followed. Clearly, therefore, the Commission considers that there was concertation on transaction prices between the members of KEA for the years in question. Furthermore, the factual part of the decision relating to KEA states in paragraph 35 that the uniform prices announced by the members of KEA coincide with the real transaction prices from 1975 to 1976 and from 1979 to 1981.
480.
It is clear, therefore, that, so far as concerns the persons and the period covered, the Commission's conclusions relating to concertation on transaction prices between members of KEA are based largely on the invoices submitted after the administrative hearing of the producers, and that the defendant should have communicated the conclusions which it had drawn from those invoices before adopting the decision. For that reason also I consider that the finding of an infringement in that regard is vitiated.
481.
That still leaves the other two aspects of concertation within KEA, namely concertation on announced prices and the exchange of individualized data on the prices charged.
482.
The first point raises few difficulties. As the applicants themselves state in their application, the Webb Pomerene Act, which governs the operation of KEA, authorizes the members of an association of that type to have meetings and to agree on the prices they propose to charge in export markets. Paragraphs 32 and 33 of the decision set out Article 11(A) of the policy statement of the Pulp Group, which states, in particular, that ‘those members represented at such a meeting will agree unanimously on prices and terms of payment for sales to a majority of the export markets of selected grades of pulp produced in the United States’ and that ‘the membership agrees to adopt the new prices as their minimum prices in each export market’. Article 11(A) further stipulates that ‘each member company does, however, agree to report to the manager, before quoting, any deviation in price below that shown on the recommended price list or any deviation in terms of payment. If such quotation results in an order, this fact will also be reported promptly to the manager. Such notification should be made by telephone within 48 hours. If, in the judgment of the manager, such deviation or deviations will adversely affect the validity of the recommended price list in any export market, it is his responsibility to call a meeting of the Pulp Group for a discussion of appropriate action’.
483.
In their application, the applicants deny that there actually was a restrictive effect on competition inasmuch as the transaction prices were not the same as the KEA recommended prices. That argument is not pertinent. It should be noted that, within KEA, the producers do in any event concert on announced prices for their export sales and that the applicants cannot deny, generally speaking, that their respective announced prices are the same. Concertation on announced prices leads to a restriction of competition inasmuch as the absence of any disparity between the list prices, having regard to long-term relationships between producers and customers, reduces the possibility of purchasers turning to supplies from producers other than their usual suppliers.
484.
As to the second point, the last passage to which I have referred in Article 11(A) of the policy statement of the Pulp Group presupposes the individualized exchange of data on the prices charged. The members of KEA undertake to report to the manager of the association, before quoting, any deviation in price below the recommended price. If such quotation results in an order, that is to be reported to the manager forthwith. If he considers that the price charged adversely affects the validity of the recommended price list, he may call a meeting of the Pulp Group to discuss appropriate action.
485.
In their application, the applicants claim that, as a rule, deviations in price were not reported to KEA or its members. In that regard, it is sufficient to point out that the applicants' denial is particularly weak since they themselves acknowledge by implication that differences between the recommended price and the actual price have been reported, at least from time to time. The Court should therefore reject the arguments put forward by the members of KEA.
IV — Concertation within Fides
486.
I would observe first of all that only two of the addressees of the decision concerned by this point have instituted proceedings.
487.
It should also be noted that Finncell, in its application, construed Article 1(4) of the decision as referring to concertation both within Fides and outside the framework of that association. The Commission does not seem to have raised any objection to that construction of the operative part of the decision. It is true, moreover, that the wording used in the English version of the decision — which is the only authentic version — seems to distinguish between the existence of concertation within Fides and concertation outside the framework of that association. (
206
) It seems clear to me, however, that notwithstanding the ambiguities in the wording of the operative part it is possible to conclude with certainty from the grounds of the decision that Article 1(4) refers only to concertation within Fides.
488.
I would also point out that although St Anne, which is referred to in Article 1(4) of the decision, has instituted proceedings in this regard, the Court will not have to examine that producer's circumstances since it will find, as I have stated in Part I of this Opinion, that the Statement of Objections cannot be regarded as charging St Anne with this particular infringement.
489.
With regard to concertation within Fides, the Commission's legal assessment is set out in paragraph 125 et seq. of the decision on the basis of the documents referred to in paragraphs 44 to 60. In that regard, the decision refers to GEC's internal notes, (
207
) various telexes and, in paragraphs 57 to 60, the replies of Portucel and Borregaard and certain documents forwarded to the Commission after the Statement of Objections. The last-mentioned documents must, however, be excluded at once, as we have seen, since they were not communicated to Finncell before the adoption of the contested decision.
490.
Fides, it will be noted, is a Swiss trust company which operates the Research and Information Centre for the European Pulp and Paper Industry. It includes a hardwood pulp section, within which the producers regularly discussed prices and quantities and fixed their pricing policy. Meetings took place several times a year, particularly in a smaller group, initially called the ‘Mini-Fides Club’ and now the ‘Bristol Club’, or sometimes when two or more producers were gathered together. According to the decision, those meetings were generally organized by the Swedish Pulp and Paper Association and the participants included at least, in addition to that association, MoDoCell, Södra, Finncell, Borregaard, ENCE, Portucel, St Anne and GEC.
491.
Finncell claims in the first place — without, however, formally alleging any infringement of its right to a fair hearing — that in the Statement of Objections it was charged, so far as concertation within Fides is concerned, merely with exchanging information with GEC. The Court will find, in that regard, that Finncell's claim is unfounded inasmuch as paragraph 31 of the Statement of Objections expressly states that the Mini-Fides Club comprised the Scandinavian, Portuguese and Spanish producers, and, until 1981, GEC, and served as a forum for discussions on hardwood pulp prices and the quantities to be sold. As we shall see shortly, the expression ‘Scandinavian producers’ was such as to cover Finncell.
492.
In its application, Finncell disputes the relevance of the information contained in GEC's internal notes (essentially paragraphs 45, 48, 51, 53, 54 and 56 of the decision), Borregaard's letter to its London subsidiary (paragraph 49) and a telex of 28 March 1977 from ENCE to its agent Becelco (paragraph 52). The arguments it has put forward have failed to convince me.
493.
Finncell's contention that the term ‘Scandinavian’ used in several documents (see paragraphs 48, 49, 51, 52 and 53 of the decision) does not cover the Finnish producers should be rejected. It is undisputed that on the pulp market that expression covers Swedish and Finnish producers. That is borne out by the use of the term ‘Norscan’ which refers to both the North American producers (from Canada and the United States) under the abbreviation ‘Nor’ and the Swedish and Finnish producers under the abbreviation ‘Scan’.
494.
Besides, the Court will find that some of the documents set out in paragraphs 44 to 56 undoubtedly refer to Finncell. Thus the note from Borregaard which is referred to in paragraph 45 refers specifically to Finland's participation in a meeting held on 27 September 1973, even pointing out that Finland, like a number of other producer countries, would follow the Swedish prices. The same is true of the minutes of GEC's meeting of 26 May 1977, which refer expressly to the Finns' presence (paragraph 54 of the decision).
495.
The Court will also find that the minutes of GEC's meeting of 14 April 1977 (paragraph 53 of the decision) are quite unambiguous in stating that Mrjooris, GEC's sales manager, would go to Helsinki on 11 May 1977 in order to study the possibility of raising prices as from the second half of 1977.
496.
Contrary to Finncell's contention, that trip by GEC's sales manager does not by any means appear to be a unilateral initiative since it is quite clear from all the documents that, in the face of criticism, GEC was obliged to justify its behaviour with regard to prices which quite clearly laid it open to the threat of reprisals (see, for example, the documents set out in paragraphs 51, 53 and 54).
497.
Furthermore, Finncell claims that its prices were fixed before the meetings referred to in the various documents. In my view, that argument is to no avail. The exchanges within Fides demonstrate not only that there were various communications between competitors, including discussions on the fixing of prices, but also that the Scandinavian producers exerted pressure on the pricing policy of other European producers.
498.
Besides, as the Commission rightly points out, it is immaterial that the producers who took part in discussions within Fides subsequently announced or charged uniform prices. Even if a producer had already announced its prices before such a meeting, the exchanges of information were such as to encourage the other producers to base thenown prices on those already announced. Furthermore, the first producer to have announced its prices could, in the event of appreciable resistance from its competitors at such meetings, alter its own policy, for instance by granting rebates.
499.
I would therefore advise the Court to reject Finncell's arguments in so far as they are directed against Article 1(4) of the decision.
V — The clauses prohibiting export and resale
500.
Westar, Canfar, MacMillan and St. Anne seek the annulment, so far as concerns them, of Article 1(5) of the decision, which found that those producers had committed a distinct infringement (
208
) of Article 85(1) by inserting in contracts of sale concluded with purchasers in the Community clauses prohibiting the purchaser from reselling pulp (Westar, Canfor (
209
) and MacMillan), or exporting it (MacMillan, St Anne) without the seller's consent (as stipulated by every contract except that of Westar). (
210
)
501.
Those applicants claim that:
—
the clauses were inserted through negligence and had, moreover, been removed following the Statement of Objections;
—
they did not have as their object or effect the restriction of competition;
—
they had not affected competition between Member States.
502.
To begin with, the allegation that the clauses had been inserted through negligence must be rejected: it is quite clear that Article 85 does not require any element of intent. (
211
)
503.
Secondly, with regard to the allegation that the contested clauses restricted competition, the Court has taken the view that ‘there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition’. (
212
) Recently the Court has further stated that, in such a case, the absence in the Commission's decision of any analysis of the effects of the agreement from the point of view of competition does not constitute a defect capable of justifying a declaration that it is void. (
213
)
504.
Some of the applicants have also maintained that they did not enforce the clauses or that the purchasers did not consider themselves bound by them. The Court has already rejected arguments of that kind.
505.
Thus, in Hasselblad v Commission, (
214
) in a case concerning a prohibition of sales to dealers established in a Member State ‘or elsewhere’, and notwithstanding the applicant's claim that the words ‘or elsewhere’ had been inserted by its solicitor and that it had never interpreted them as impeding exports, the Court nevertheless held that
‘a prohibition of sales between authorized dealers constitutes a restriction of their economic freedom and, consequently, a restriction of competition. Furthermore, the fact that the applicant never impeded exports by its dealers is not sufficient to preclude the existence of a clear prohibition of exports’. (
215
)
506.
In its judgment in Sandoz, (
216
) the Court also pointed out that the fact that a supplier may not have taken steps to ensure the observance by his customers of a contractual clause intended to restrict competition was not sufficient to remove that clause from the scope of the prohibition in Article 85(1) of the Treaty.
507.
The question whether there is an appreciable effect on trade between Member States is perhaps more delicate. St Anne, for instance, states that the annual volume of pulp which it sold during the period in question in the Community accounted on average for 3% of the total quantity imported or used in the Community. Westar, in particular, points out that the small number of similar clauses in the contracts of a few producers cannot have an appreciable effect on prices on the Community paper pulp market. So far as concerns Westar, only one contract was cited by the Commission as containing such a clause.
508.
The Court has already held that an undertaking holding approximately 5% of the relevant market is an undertaking of sufficient importance for its behaviour to be, in principle, capable of affecting trade between Member States. (
217
) It would seem, moreover, that in its decisions the Court attaches as much weight to the size of the undertaking in question as to its share of the market. Thus, in Musique Diffusion Française v Commission (
218
) when the applicants considered that their market shares were 3.38% in France and 3.18% in the United Kingdom, the Court pointed out that
‘the percentages stated by the applicants exceed those of most of their competitors’
and that
‘in those circumstances, regard being had to their absolute turnover figures, it cannot be denied that conduct by those undertakings... was capable of exercising an influence on the pattern of trade between Member States...’. (
219
)
509.
Moreover, the market-share criterion is, in my view, far more significant where the undertaking is established in one of the Member States of the Community and achieves most of its turnover there, than where it is established in a nonmember country and consequently its presence on the Community market is by its very nature only partial. In those circumstances, the size of the undertaking, particularly its turnover and its production capacity, is very much a relevant criterion in view of the influence which its conduct may have on the Community market.
510.
It is sufficient for the Court to note, therefore, that in 1981 MacMillan Bloedel's overall turnover was USD 1800 million and that of Westar was USD 280 million, and that the production capacities of Canadian Forest Products, MacMillan, St Anne and Westar were 180, 385, 290 and 580 thousand tonnes a year respectively, as is clear from Table 5 annexed to the decision.
511.
Finally, the Court should reject St Anne's argument that the Community purchasers are papermakers who resell only a very small part of the wood pulp purchased. According to St Anne, any restriction imposed on a papermaker within the Community on reselling pulp to another Community papermaker would therefore have a minimal impact.
512.
It is sufficient to state that, in view of the restrictive nature of the clauses in question, the potential effect on trade between Member States is clear. If there had been intra-Community trade in wood pulp, its development would inevitably have been hindered by the stipulation of such clauses. And, above all, those clauses are in any event such as to prevent the appearance of such patterns of trade.
VI — Effect on trade between Member States
513.
Several applicants criticize the Commission's findings in paragraphs 136 to 140 of the decision with regard to the effect on trade between Member States.
514.
In my observations on this point, I shall focus essentially on the infringements referred to in Article 1(3) and (4) of the decision, bearing in mind that I am proposing that the Court annul Article 1(1) and (2) and that I have just specifically examined in Section V of this Opinion the question of the effect of the clauses prohibiting export and resale on trade between Member States. (
220
)
515.
Finticeli and the members of KEA point out that there is no trade in paper pulp between the Member States. The Community purchasers of such pulp use it exclusively to make paper. According to the members of KEA, all of the production of the five paper mills located in the Community (one in Belgium and four in France) is used by the producers in their own paper or board plants and thus is not sold as market pulp. Only minimal quantities of pulp are shipped by Community producers to a few customers in other Member States.
516.
The members of KEA also emphasize that their volume of exports to the Community is small, a point that in fact relates to the requirement that there be an appreciable effect on intra-Community trade.
517.
I shall consider each of those two points in turn.
518.
With regard to the first point, I would merely observe that in any event the concerted practices referred to in Article 1(3) and (4) of the decision were capable of affecting trade between Member States. As the Court has consistently held
‘any agreement whose object or effect is to restrict competition... for an intermediate product is capable of affecting intra-Community trade, even if there is no trade in that intermediate product between the Member States, where the product constitutes the raw material for another product marketed elsewhere in the Community’. (
221
)
519.
In any event, the practices referred to in Article 1(3) and (4) of the decision were such as to have a substantial impact on costs and, consequently, on the price of paper made from pulp. It should be borne in mind, in that regard, that pulp accounts for more than half of the cost of paper, in which there obviously is intra-Community trade. In that regard, the Commission has, moreover, stated in its rejoinder that the value of intra-Community trade in paper and board amounted to ECU 3.4 billion. Hence the effect on trade between Member States cannot be disputed.
520.
With regard to the second point, namely whether the effect on trade is appreciable, it is sufficient to observe that the members of KEA are all large producers, whose overall turnover in 1981 and production capacity are set out in Table 5 annexed to the decision. The figures for those two items are as follows:
—
Chesapeake Corporation: USD 280 million and 91000 tonnes a year;
—
Crown Zellerbach Corporation: USD 3150 million and 286000 tonnes a year;
—
Federal Paper Board Corporation: USD 520 million and 260000 tonnes a year;
—
Georgia Pacific Corporation: USD 5410 million and 225000 tonnes a year;
—
Mead Corporation: USD 2900 million and 370000 tonnes a year;
—
Scott Paper Company: USD 2310 million and 1500000 tonnes a year;
—
Weyerhaeuser: USD 4500 million and 295000 tonnes a year;
—
International Pulp Sales Company: USD 4980 million (for the group) and 80000 tonnes a year.
521.
In examining the question of the effect on trade between Member States in connection with the infringement referred to in Article 1(5) of the decision concerning the clauses prohibiting export or resale, I have already expressed the view that in the case of an undertaking established in a nonmember country, it would seem that the criterion of the size of the undertaking should be taken into consideration and not just that of the market share actually held by the undertaking in the Community.
VII — The alleagation of discrimination
522.
A number of applicants allege discrimination with regard to the amount of the fines that were imposed upon them. I shall consider that allegation shortly in the section on fines in this Opinion.
523.
The members of KEA also allege discrimination as regards the decision itself, inasmuch as it finds them guilty of infringements. They rely, first of all, on the following arguments:
—
the Commission arbitrarily restricted its decision to the bleached pulp market, although an analysis of the semi-bleached pulp market would have been particularly relevant as regards parallel prices and the — allegedly artificial — transparency of the market;
—
the Commission did not extend the procedure to French and German producers, even though they were mentioned in Annex 7 to the Statement of Objections as principal members of the hardwood pulp section of Fides. (
222
)
524.
The Court will find, to begin with, that the first argument put forward by the members of KEA cannot in any event be described as an allegation of discrimination. It is an argument concerning the definition of the market adopted by the Commission, which, according to the applicants, affects the relevance of the Commission's economic analysis.
525.
Next, as regards discrimination resulting from the failure to extend the procedure to certain European producers, it seems to me that GEC is the only producer shown to have participated in concerted practices, namely within Fides. Apparently, the Commission refrained from addressing the Statement of Objections to GEC because it had been the subject of a court liquidation order in 1980 and dissolved in February 1981. Did that preclude the initiation of a proceeding against — if not the group — at least its members? However that may be, it does not seem to me that the possibility of the Commission's having been mistaken in that regard has any effect whatsoever on the legality of the contested decision. I am guided here by the Court's decisions in antidumping cases. The Court has consistently refused to annul a regulation imposing antidumping duties on certain imports into the Community, even when it has been established that an undertaking concerned by another decision was accorded more favourable treatment, in particular where the Commission has adopted a decision terminating the proceeding inititiated against it. (
223
)
526.
As Advocate General Sir Gordon Slynn emphasized in his Opinion in the Sharp Corporation case,
‘if an exporter is dumping, it is dumping, and it cannot exculpate itself by pointing to another exporter which may or may not be dumping’. (
224
)
527.
It would certainly be regrettable if the Commission, which is responsible for ensuring compliance with the provisions of Article 85(1), were to aggravate distortions of competition by deciding to institute proceedings against some undertakings and not others, where all the undertakings concerned were ex hypothesi competing on the same market. However, the Court must stay within the bounds of the issue raised before it: it cannot declare that an undertaking which is not the subject of a decision has committed an infringement. Where an undertaking which has brought an action against a Commission decision has infringed the rules of competition law, it cannot, in my view, escape any of the consequences resulting therefrom by arguing that another trader has also behaved unlawfully. Any damage resulting from a future omission by the Commission would, where appropriate, call for remedies other than the annulment of the measure in question.
528.
The Court should therefore reject the applicants' arguments in that regard.
529.
The members of KEA also allege that they have been discriminated against by comparison with Finncell. They claim that the rules on concertation between the undertakings in KEA are less constricting than those governing Finncell. However, in the decision the members of KEA were found guilty of an infringement (Article 1(3)) for concerting within that association, although the Commission did not state its position on the question of the compatibility of Finncell itself with Article 85 of the Treaty, leaving that for a separate decision.
530.
The Court should reject that allegation on the ground that the circumstances of KEA and those of Finncell were not altogether identical at the time of the adoption of the decision. In the first place, the Commission emphasized that, unlike those of KEA, the material circumstances and legal status of Finncell were far from clear at the time of the decision. Secondly, again unlike KEA, Finncell had notified, at least in part, the agreement establishing the association.
VIII — The undertaking
531.
With the exception of the Finnish applicants, (
225
) all the producers who signed the undertaking, as well as Bowater who did not, are asking the Court to annul the undertaking itself or to discharge them from it. The Commission considers the applications inadmissible in this respect and, in my view, rightly so.
532.
Mere appearances can be deceptive. It is true that paragraph 149 of the decision refers to the fact that, in determining the amount of the fines, the Commission took account of the undertaking and the text thereof is annexed to the decision. However, the Court cannot regard that undertaking as a unilateral act by the Commission, which are the only acts capable of being challenged before the Court by an action under the second paragraph of Article 173 of the EEC Treaty.
533.
The fact that the Commission determined the amount of the fines taking account of the undertaking cannot make that undertaking an act of a Community institution,
534.
The applications are therefore inadmissible in so far as they are directed against the undertaking. By the same token the allegations relating to the conditions in which the Commission is said to have persuaded the producers to sign the undertaking and those relating to the illegality of the undertaking as such are also inadmissible.
535.
Nor do I consider that the Court need examine in this case the producers' arguments calling in question the Commission's power to make a reduction in the fines conditional on their giving an undertaking to adopt specific conduct. Such allegations are also inadmissible in so far as they are directed against the undertaking itself. Furthermore, as the Commission points out, the Court could no doubt, in the exercise of its unlimited jurisdiction with regard to the amount of the fines, determine whether those arguments are well founded by considering to what extent the Commission was entitled to take the undertaking into consideration in fixing those amounts.
536.
However, since all the applicants referred to in Article 1(3), (4) and (5) of the decision, with the exception of Finncell, were also charged with the infringements referred to in Article 1(1) and (2), which I am proposing that the Court annul, the findings on which the Commission relied have in any event been significantly modified. The Court will therefore have to fix the amount of the fines anew, in the exercise of its unlimited jurisdiction, to take account of the gravity of only those infringements in respect of which the decision is not declared void.
537.
Finncell is not in any event seeking the annulment of the undertaking and it does not challenge the Commission's power to make a reduction in the fine conditional on the giving of an undertaking. It claims merely that it was promised that a ‘symbolic fine’ would be imposed on it, which is tantamount to seeking a reduction of the fine. I shall examine that point in due course, noting simply here that the Commission observes, quite rightly, that such a promise could have been made only by an official specifically authorized to do so, (
226
) whereas the persons referred to by the applicants had not been given such authority.
IX — The fines
538.
Two questions must be addressed here so far as concerns the fines imposed. The first concerns the allegation of discrimination put forward by certain applicants. I shall then deal with the amount of the fines imposed on those producers whose applications I am advising the Court to dismiss in whole or in part.
(1) Discrimination
539.
In view of my proposal that the Court should annul Article 1(1) and (2) of the operative part of the decision, the only arguments relating to the discriminatory nature of the fines imposed which I consider I must examine are those relied upon by the producers whose actions against Article 1(4) and (5) I am proposing that the Court dismiss. (
227
)
540.
Westar, Canfor and St Anne, whose applications I am advising the Court to dismiss in so far as they are directed against the finding of an infringement by virtue of the imposition of clauses prohibiting export and resale, argued precisely that no fine was imposed on ITT Rayonier, a producer which is not an applicant in these proceedings and is referred to in Article 1(1), (2), (3) and (5) of the decision. It is clear that if the Court were to impose a fine on the producers in question solely on account of the export and resale bans, ITT Rayonier, which was found to have committed the same infringement, will not have been penalized by a fine. Even though that result is far from satisfactory, it is inevitable, in my view, given the terms in which this issue has been raised before the Court: the Court cannot impose a fine on the producer in question. In my view, (
228
) where an undertaking has acted in breach of Article 85(1) of the Treaty, it cannot, in proceedings before the Court, escape being penalized altogether on the ground that another trader has not been fined, when that trader's circumstances are not even the subject of the proceedings before the Court.
541.
The fact that the Commission did not impose a fine on Borregaard, ENCE and Portucel, which were found to have engaged in concertation within Fides, has also been relied upon by the applicants. The Court should reject the arguments put forward in that regard. In the decision the Commission found that at meetings those producers had played a different role from that of the Finnish and Swedish producers and had varied their pricing policy. The Commission also stated that it was difficult for a producer in a weak position who is not a traditional supplier to resist pressure exerted by stronger producers and to stay out of concertation. (
229
) In any event, that is how the defendant has described the differences between the positions with regard to the concerted practices in question of those producers and of the Scandinavian producers, emphasizing that those differences would be taken into account in fixing the amount of the fine. (
230
)
542.
The Court should therefore reject the applicants' allegations in that regard.
(2) The amount of the fines
543.
Let me point out first of all that, as is clear from the defence, the Commission did not impose a fine on the members of KEA for the concertation within that organization referred to in Article 1(3) of the decision. The decision states on that point that, so far as concerns concertation within KEA, the Commission took account of the fact that this was the first Community action against an export organization falling within the Webb Pomerené Act.
544.
The Court will also have to consider the amount of the fine imposed on Finncell in respect of the infringement referred to in Article 1(4) of the decision. It should be borne in mind that the Commission stated in the decision that it relied on the tonnages delivered during the last year of the period covered by the procedure, namely 1981. Finncell maintains that those figures are incorrect and that the fine imposed on it should have been merely symbolic.
545.
With regard to the first point, Finncell disputes the contention in paragraph 128 of the decision that the Finnish and Swedish producers hold relatively large shares of the Community market. It maintains that Table 2 gives a better picture but is also inaccurate. In its view, it is based on statistics from the European Confederation of Pulp, Paper and Board Industry (CEPAC), which include internal deliveries within groups. Finncell thus claims that its pulp sales in the Community in 1981 and 1982 represented a lower percentage of Community imports and a smaller market share than the figures in Table 2 indicate.
546.
The Commission categorically denies relying on the overall figures yielded by CEPAC statistics and maintains that it took as a basis the information provided by the applicants themselves concerning their sales in the Community.
547.
It will be found that there is nothing to cast doubt on the fact that, in determining the amount of the fine, the Commission referred to the data provided by the applicants themselves.
548.
So far as concerns the reduction of the fine to a ‘symbolic’ amount, as sought by Finncell, the Court should simply observe that the infringement with which Finncell is charged was committed from 1973 to 1977 and that the overall turnover in 1981 of all the members of Finncell (
231
) exceeds USD 3000 million. Accordingly, the fine of ECU 100000 imposed on Finncell seems indeed to be very small having regard to the criteria laid down by Regulation No 17 regarding the duration and gravity of an infringement and the ceiling set at 10% of turnover. Accordingly, there is no justification for reducing the fine.
549.
So far as concerns the fines imposed in respect of the infringement concerning the clauses prohibiting expon and resale, it should be noted that such clauses are by nature particularly harmful to the attainment of the internal market and indisputably favour the partitioning of the markets. That clause was removed in or around December 1978 by Westar, and shortly after the Statement of Objections by Canfor and St Anne. MacMillan removed it from its standard contract in 1979 (
232
) even though it seems to have remained in some old long-term contracts. I therefore propose that the fine imposed on those four producers should be fixed at ECU 20 000.
X — Costs
550.
In regard to costs I would, subject to the following observations, refer the Court to my proposals for the operative part set out below.
551.
To begin with, since the expert's reports commissioned by the Court related in substance to the infringements established in Article 1(1) and (2), which I consider the Court should annul, the Commission should, in my view, be ordered to bear the costs of those reports.
552.
So far as concerns the remainder of the costs, in the case of the applications which the Court should, in my view, either reject in part, or declare inadmissible (
233
) — in so far as they seek the annulment or the discharge of the undertaking — each of the parties must in accordance with the applicable rules bear its own costs.
553.
Furthermore, it follows from the dismissal of Finncell's application in its entirety that Finncell must bear the costs of the Commission in its defence against the action challenging Article 1(4) of the decision, although the defendant must for its part be ordered to pay the costs of the individual Finnish producers who are not referred to in that provision, since I am proposing that their applications against Article 1(1) and (2) of the decision be upheld by the Court.
554.
Mead withdrew from the proceedings and it must accordingly bear the costs incurred by the Commission in connection with its application. Finally, the United Kingdom, which intervened in the proceedings, must bear its own costs.
555.
Accordingly, I propose that the Court:
—
declare inadmissible the applications in so far as the applicants are seeking the annulment of the undertaking in whole or in part or to be discharged therefrom;
—
annul Article 1(1) of the contested decision in so far as it concerns St Anne;
—
annul Article 1(2) of the decision in so far as it concerns Chesapeake and Scott;
—
annul Article 1(1) and (2) of the decision in so far as those paragraphs concern:
—
British Columbia Forest Products Ltd,
—
Canadian Forest Products Ltd,
—
MacMillan Bloedel Ltd,
—
Weldwood of Canada Ltd,
—
Westar Timber Ltd,
—
Bowater Incorporated,
—
Federal Paper Board Company,
—
Crown Zellerbach,
—
Georgia-Pacific Corporation,
—
International Pulp Sales Company,
—
Weyerhaeuser Company,
—
Ahlström Oy,
—
Enso-Gutzeit Oy,
—
Joutseno-Pulp Co.,
—
Kaukas AB Oy,
—
Kemi Oy,
—
Metsä-Botnia AB Oy,
—
Metsäliiton Teollisuus Oy,
—
Oulu Oy,
—
Wilh Schaumann AB Oy,
—
Sunila Oy,
—
Veitsiluoto Oy;
—
annul Article 1(3) of the decision in so far as it finds that the applicants concerted on transaction prices within KEA;
—
annul Article 1(4) in so far as it concerns St Anne;
—
annul Article 3 of the decision in so far as it imposes a fine on the applicants, with the exception of Canadian Forest Products, MacMillan, St Anne, Westar and Finncell;
—
fix the fine imposed on Canadian Forest Products, MacMillan, St Anne and Westar at ECU 20 000;
—
dismiss the remainder of the applications;
—
order the Commission to bear the costs relating to the expert's reports commissioned in this case;
—
declare that, for the rest, the parties including the United Kingdom, as intervener, are to bear their own costs, except for the Commission's costs in connection with the applications by Mead and Finncell which are to be borne by those applicants respectively and the costs of the Finnish undertakings in Case C-89/85 which are to be borne by the Commission.
(
*1
)	Original language: French.
(
1
)	See Table 5 annexed to the decision.
(
2
)	With regard to costs, the figures in Table 1 were challenged at the hearing, in particular on the ground that they were never communicated to the producers and were not set out in the Statement of Objections; it is true that this table was not referred to in the Statement of Objections which, however, contained other figures (Annex III) relating to production costs.
(
3
)	Table 1 annexed to the decision.
(
4
)	Enso-Gutzeit withdrew from Finncell on 31 December 1979 and Ahlström did so on 31 May 1986.
(
5
)	International Pulp Sales withdrew from KEA in 1979; Chesapeake, ITT Rayonier and Mead are said to have withdrawn at the time when the Statement of Objections was notified and Crown Zellerbach in 1982, that is to say after the period covered by the decision.
(
6
)	See the common part of the applications in Cases 125 to 129/85, at p. 25.
(
7
)	Table No 2 annexed to the decision; it should be noted that according to the Finnish applicants the figures in that table include internal deliveries within groups, even though those deliveries do not concern merchant pulp; specifically as regards 1981 and 1982, Finland's import share was 10.11% and 8.74% respectively.
(
8
)	1975 is the first year of the period covered by the contested decision in connection with the ‘general’ concertation on prices referred to in Article 1(1) and (2) of the decision; according to the decision, prices had increased by 40% between the first quarter of 1974 and the first quarter of 1975; it should be noted that the decision also referred to changes in prices in 1982, although the period covered by it ends in 1981.
(
9
)	I am referring to the data in paragraph 15 of the decision; Table 6 annexed to the decision shows a reduction in Finncell's prices in the first two quarters of 1977, a point to which I shall return in due course.
(
10
)	See the Notice of the initiation of the procedure in OJ C 89 of 12 April 1978, p. 2.
(
11
)	See the Notice of termination in OJ C 303 of 19 December 1978, p. 10, which states as follows: ‘Having regard to the development of the situation, it is not considered necessary at present to introduce defensive measures’.
(
12
)	First Regulation implementing Articles 85 and 86 of the Treaty of 6 February 1962 (OJ, English Special Edition 1959-1962, p. 87).
(
13
)	The full sentence reads as follows: ‘In your written reply to the Statement of Objections and in the Hearing you have raised certain points, in the light of which it seems necessary to update and complement the information on the facts on which the above proceeding is based’ (see Annex S, Doc. 4, in Volume III of the annexes to the common part of the application submitted by the producers from British Columbia).
(
14
)	See, for example, the letter of 30 November 1984 from the Director General for Competition; see also paragraph 149 of the decision.
(
15
)	Agence Europe of 15 December 1984, No 3991, p. 10.
(
16
)	Letter from the Director General for Competition (see Annex U, Doc. 24, in Volume III of the annexes to the common part of the applications submitted by the producers from British Columbia).
(
17
)	Article 4 of the decision.
(
18
)	Article 3 of the decision.
(
19
)	Article 1(1) of the decision.
(
20
)	Article 1(2) of the decision.
(
21
)	Article 1(3) of the decision.
(
22
)	Fides is a Swiss trust company which, amongst other activities, operates the Research and Information Centre for the European Pulp and Paper Industry.
(
23
)	Article 1(4) of the decision; reference should be made here to the operative part of the English version, which alone is authentic, and which differs in this respect from the French version.
(
24
)	Article 1(5) of the decision.
(
25
)	Commission's reply of 22 May 1990 to the Court's third supplementary question.
(
26
)	Case 89/85 (Finnish applicants):
A. Ahlström, Joutseno-Pulp, Kymmene Oy (Oy Kaukas), Kemmy Oy, Metsae-Botnia, Teollilsuus (no fine imposed), Vetisuluoto Oy (Oulu), Schaumann, Sunila (no fine imposed). Veitsiluoto, Finncell (a trade association comprising all the Finnish producers, apart from Enso-Gutzeit, which withdrew on 31 December 1979, and Ahlström, which withdrew on 31 May 1986) and Enso-Gutzeit
Case 104/85, Bowater Incorporated (USA)
Case 114/85 (members of KEA)
KEA, Chesapeake Corporation, Crown Zellerbach Corporation, Federal Paper Board Company, Georgia-Pacific Corporation, The Mead Corporation, Scon Paper Company, Weyerhaeuser Company
Case 116/85, St Anne-Nackawic (Canada)
Case 117/85, International Pulp Sales Company (USA)
Case 125/85, Westar Timber Limited (Canada)
Case 126/85, Weldwood of Canada Limited (Canada)
Case 127/85, MacMillan Bloedel Limited (Canada)
Case 128/85, Canadian Forest Products Limited (Canada)
Case 129/85, British Columbia Forest Products Limited (Canada)
(
27
)	Some of the applicants have submitted that the statement of reasons in the contested decision is inadequate; I consider it necessary, in this case, to examine that submission in connection with the substance.
(
28
)	Judgment of 14 July 1972 in Case 52/69 Geigy v Commission [1972] ECR 787, at paragraph 18.
(
29
)	Ibid.
(
30
)	Ibid.
(
31
)	Only Bowater has not referred to this complaint; in the case of the United Sutes applicants who are members of KEA, the point is expressly raised in the application made under Article 91(1) of the Rules of Procedure.
(
32
)	Thus, paragraph 20 states that ‘with the exception of 1977 and almost all of 1978, these producers applied two different prices in Europe’. According to paragraph 21 ‘the prices announced and/or applied by the various producers selling in the common market (Norscan and others) are broadly identical’. Next, after stating that for 1977 ‘prices remained officially unchanged for the whole year’, paragraph 25 refers to rebates secretly granted by manufacturers and gives their actual prices. Finally, in paragraph 26 the Commission states as follows: ‘1978. In December 1977, the producers reduced their prices for 1978. This time the announced prices were the actual ones’.
(
33
)	Original English text, p. 40.
(
34
)	With regard to concertation within Fides between Scandinavian producers and other European producers, paragraph 61 refers to restraints on competition in the area of pricing policy, specifying that those restraints include rebates; however, concertation within Fides constitutes an infringement distinct from ‘general’ concertation on announced prices and transaction prices, which is referred to in the decision; the passage in question cannot therefore be relied upon in support of the Commission's argument; that also holds true, for the same reasons, as regards the passages in the Statement of Objections relating to concertation within KEA with reference to actual prices (see, for example, paragraph 41).
(
35
)	See p. 28 of the Commission's defence: ‘... when summarizing the results of the investigation in the Statement of Objections, the Commission emoted the “announced” prices in order to indicate the level of concerted prices, making it clear that the “announced” prices mostly corresponded to the “transaction” prices’.
(
36
)	For example, paragraphs 20 and 25.
(
37
)	Judgment in Geigy v Commission, cited above, at paragraph 11.
(
38
)	Judgment of 14 February 1978 in Case 27/76 United Brands v Commission [1978] ECR 207, at paragraph 275, emphasis added.
(
39
)	Judgment of 15 July 1970 in Case 45/69 Boehringer Mannheim v Commission [1970] ECR 769, at paragraph 9; judgment of 7 June 1983 in Joined Cases 100 to 103/80 Musique Diffusion Française v Commission [1983] ECR 1825, at paragraph 14.
(
40
)	See in that regard the judgment of 16 December 1975 in Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie v Commission [1975] ECR 1663 where the Court, in rejecting a submission alleging that there were irregularities in the Statement of Objections, points out that ‘this complaint has been clearly ana accurately formulated on pages 91 to 93, 107 to 108 and 121 to 123 of the notification of objections and supported by documents emanating from SZV or which explicitly mention SZV’ (paragraph 427, emphasis added).
(
41
)	Joined Cases 100 to 103/80 Musique Diffusion Française v Commission, cited above, at paragraph 15.
(
42
)	Ibid-, emphasis added.
(
43
)	That textual argument is in any event a tenuous one since it is counterbalanced by another passage in the same document in which the past tense is used (‘The Commission, ... has found that the firms ... have participated in price fixing’), emphasis added.
(
44
)	Judgment of 10 July 1980 in Case 30/78 Distillers Company v Commission [1980] ECR 2229.
(
45
)	Paragraph 26.
(
46
)	I have attempted to summarize the applicants' position with regard to the procedural irregularities relating to the evidence on which the allegation of concertation on transaction prices was based; the Canadian producers in Cases 125 to 129/85 and the members of KEA (Case 114/85) who, moreover, have submitted an application on the basis of Article 91(1) of the Rules of Procedure, put forward substantive arguments in that regard; IPS (Case 117/85) also relied on that submission in its application (see p. 36 et seq. of the English version); the Finnish applicants, for their part, laid emphasis particularly on the fact that the Statement of Objections did not envisage concertation on transaction prices, but they also stated that the Commission did not inform them of tne result of its investigations concerning those prices; in its written observations, Bowater (Case 104/85) maintained that the Commission did not inform it of its conclusions relating to Bowater's own invoices before the adoption of the decision; that producer relied at the hearing on the failure to communicate its competitors' invoices; it should be remembered that St. Anne (Case 124/85) was not found to have concerted on transaction prices.
(
47
)	Judgment of 13 February 1979 in Case 85/76 Hoffmann-Laroche v Commission [1979] ECR 461.
(
48
)	It is clear from the expert's report that the four addressees of the decision for whom the Commission had the largest number of invoices at its disposal at the date of the Statement of Objections were members of KEA (see Annex 15-1 to the first expert's report); I shall return to this point when I consider the substantive aspects of concertation within KEA in order to determine whether the finding of concertation on transaction prices within that association is valid from the procedural point of view.
(
49
)	‘Since the replies to the Statement of Objections contained the unsubstantiated allegation that transaction prices differed widely from announced prices, the Commission requested written proof under Article 11 of Regulauon No 17. More than 100000 invoices and credit notes were submitted by the firms concerned. They reveal that genuine rebates or concessions in the form of easier terras of payment were (with rare exceptions) granted only to a small circle of leading firms. The firms concerned allowed such discounts on very similar terms. They usually did not exceed 3% and never amounted to more than 7%. Deductions serving merely to offset the supplier's failure to fulfil his contractual obligations or an additional service rendered by the customer or a third party do not constitute genuine pnce rebates and have not therefore been taken into consideration. Similarly, the invoicing of quantities shipped in a subsequent quarter at prices applicable when the agreement was entered into (carryover) does not constitute a genuine price rebate. Details of the transaction prices are set out in Tables 7 and 8’.
(
50
)	Judgment of 29 October 1980 in Joined Cases 209 to 215 and 218/78 Van Landetvyck and Others v Commission [1980] ECR 3125, at paragraph 68.
(
51
)	Judgment in Geigy, cited above, at paragraph 14.
(
52
)	Ibid., emphasis added.
(
53
)	Judgment of 14 July 1972 in Case 51/69 Bayer v Commission [1972] ECR 745, at paragraph 5.
(
54
)	Letter of 12 November 1984, see Annex S, Doc. 6, in Volume III of the annexes to the common part of the application submitted by the producers from British Columbia.
(
55
)	Judgment of 25 October 1983 in Case 107/82 AEG v Commission [1983] ECR 3151, at paragraph 27.
(
56
)	Paragraph 25 of the decision, emphasis added.
(
57
)	Paragraph 103 of the decision, emphasis added.
(
58
)	Paragraph 104 of the decision, emphasis added.
(
59
)	Letter of 12 April 1985 (see the annex to the application under Article 91 of the Rules of Procedure submitted by Westar (Case 125/85)).
(
60
)	Case 85/76 Hoffmann Laroche v Commission, cited above, at paragraph 14; see also the judgment in Joined Cases 100 to 103/90 Musique Diffusion Française, cited above, the judgment in Case 107/82 AEG, cited above, and the judgment of 9 November 1983 in Case 322/81 Michelin v France [1983] ECR 3461, at paragraph 8.
(
61
)	Opinion of 7 February 1991 in Case C-49/88 Al Jubail v Council [1991] ECR I-3187, p. 3205 et seq., paragraphs 111 and 112.
(
62
)	Judgment of 27 June 1991 in Case C-49/88 Al Jubail v Council [1991] ECR I-3187, at paragraph 17.
(
63
)	The application of the principles laid down by the Court in the Al Jubail judgment cannot be limited to the field of antidumping legislation; the Court elicited those principles on the basis of requirements arising from the observance of the rights of the defence, as laid down by the Court in its case-law on competition and, in particular, in its judgment of 17 October 1989 in Case 85/87 Dow Benelux v Commission [1989] ECR 3137.
(
64
)	Judgment in Hoffmann Laroche, cited above, at paragraph 11, emphasis added.
(
65
)	Paragraphs 57 and 58.
(
66
)	In paragraph 58, reference is made to statements made by Borregaard at the hearing of that producer.
(
67
)	Paragraphs 59 and 60.
(
68
)	Except, however, for the reference to Borregaard's hearing in paragraph 58 of the decision as regards concertation between producers within Fides; I have already pointed out that it would be appropriate to disregard such information, as well as all the information set out in paragraphs 57 to 60, in determining whether Finncell's participation in such concertation is proven.
(
69
)	For the same reasons, I have not dealt with the submission alleging failure to adopt a decision on the basis of Article 11(5) of Regulation No. 17, put foward by certain applicants in regard to ‘evidence in the form of presumptions’ to which the Commission had recourse in determining the transaction prices of certain producers for certain periods.
(
70
)	Defence, 2(1), p. 20.
(
71
)	Which, by common consent, was derived from ‘concerted actions’ or ‘concerted practices’, concepts laid down in connection with the ‘conspiracy’ prohibited by Article 1 of the Sherman Act; that provision prohibits any ‘contract, coordination or conspiracy’, legal categories which necessarily presuppose an ‘agreement’, that is to say a meeting of minds which is not necessarily the result of a legally binding contract; see, for example, Blaise, Le sutut juridique des ententes économiques dans le droit français et le droit des Communautés européennes, Paris, 1964, at p. 114; Bortolotti, ‘Pratiques concertées’ et notion d'ententes dans le traité CEE, Droit et Affaires CEE, 1970, No 176, Doc. No 17, p. 1, at p. 3; Henrichs, Die ‘conscious parallelism’ — Doktrin des US-Antitrustrechts und der Begriff ‘Aufeinander Abgestimmte Verhaltensweisen’ in Art. 85 EWG-Vertrag, Wirtschaft und Wettbewerb, 1965, No 2, p. 95; Joliet, La notion de pratique concertée et l'arrêt ICI dans une perspective comparative, CDE, 1974, p. 251, at p. 258 et seq.
(
72
)	On the concept of concerted practices, see in particular Gleiss, Der Begriff der ‘Aufeinander Abgestimmten Verhaltensweisen’ in Art. 85 EWG-Vertrag, Wirtschaft und Wettbewerb, 1964, No 6, p. 485; Henrichs, op. cit.; Trimarchi, Die Rechtliche Beurteilung Abgestimmter Verhaltensweisen auf Oligopolistischen Märkten, Gewerblicher Rechtsschutz und Urheberrecht, Internationaler Teil, 1970, No 10, p. 311; Kersten, Bewusstes Parallelverhalten — Aufeinander Abgestimmte Verhaltensweise, Kartellvertrag, Wirtschaft und Wettbewerb, 1972, No 2, p. 69; Bortolotti, op. cit.; Korah, ‘Concerted practices’ under the note on ‘Dyestuffs’, Modern Law Review, March 1973, vol.36, p. 220; Goldman, Clunet, 1973, p. 936; Moehring, ‘Abgestimmtes Verhalten’ im Kartellrecht, Neue Juristische Wochenschrift, 1973, No 18, p. 777; Pfeiffer, Uniform pricing in concentrated markets: is conscious parallelism prohibited by Article 85(1) of the Treaty of Rome? (note on the judgments of the Court of 14 July 1972 in Cases 48, 49 and 51 to 57/69), Cornell International Law, 1974, vol.VII, No 2, p. 113; Daig, Zum Begriff der ‘Aufeinander Abgestimmten Verhaltensweisen’ nach Art. 85 EWG-Vertrag, unter besonderer Berücksichtigung des ‘Zuckerurteils’ des EUGH vom 16.12.1975, Europarecht, 1976, No 3, p. 213; Kovar, Clunet, 1977, p. 217; Flint, Comportements parallèles conscients et pratiques concertées, Comparaison du droit antitrust aux Etats-Unis, dans la Communauté économique européenne et en Australie, Revue Internationale de Droit Comparé, 1981, No 1, p. 33; Joliet, op. cit.; Petropoulos, L'affaire Binon-parallélismes de comportement, pratiques concertées et ententes ‘verticales-horizontaies’, Cahiers de droit européen, 1986, No 3/4, p. 332; Schapira, Le Tallec, Blaize, Droit européen des affaires, 3rd Ed., PUF, 1992, at p. 303.
(
73
)	See, in particular, the Court's judgments of 14 July 1972 in Case 48/69 ICI [1972] ECR 619, Case 49/69 BASF [1972] ECR 713, Case 51/69 Bayer [1972] ECR 745, Case 52/69 Ceigy [1972] ECR 787, Case 53/69 Sandoz [1972] ECR 845, Case 54/69 Francolor [1972] ECR 851, Case 55/59 Candía [1972] ECR 887, Case 56/69 Hoechst [1972] ECR 927, Case 57/69 ACNA [1972] ECR 933; the judgment of 16 December 1975 in Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie [1975] ECR 1663; the judgment of 7 June 1983 in Joined Cases 100 to 103/80 Musique Diffusion Française [1983] ECR 1825; the judgment of 28 March 1984 in Joined Cases 29 and 30/83 CRAM and Rheinzink [1984] ECR 1679; the judgment of 14 July 1981 in Case 172/80 Züchner [1981] ECR 2021, the judgment of 10 December 1985 in Joined Cases 240, 241, 242, 261, 262, 268 and 269/82 Stichting Sigarettenindustrie [1985] ECR 3831.
(
74
)	Case 48/69, cited above, at paragraph 64.
(
75
)	Ibid., at paragraph 65.
(
76
)	Une ‘première frontière du concept de pratique concertée: elle suppose un concours de volontés qui se situe en-deçà de l'accord’, Piriou, CDE 1973, p. 50, at p. 52.
(
77
)	Suiker Unie, cited above, at paragraph 173, emphasis added.
(
78
)	Ibid., at paragraph 174, emphasis added.
(
79
)	See L. Focsaneanu, Gigantisme juridique: l'arrêt-fleuve du 16 December 1975 de la Court de justice des Communautés européennes concernant les affaires ‘industrie européenne du sucre’, JCP 1976, II 12168, p. 417, at p. 424; see also Flint, op. cit., at p. 48, who emphasizes that to influence the conduct of a competitor or to disclose to the latter a proposed course of action merely constitutes unilateral conduct.
(
80
)	See in that regard the definition given by Judge Cross of the ‘arrangement’ under United Kingdom law in British Basic Slag Ltd's Application: ‘... all that is required to constitute an arrangement not enforceable in law is that the parties to it shall have communicated with one another in some way, and that as a result of the communication each has intentionally aroused in the other an expectation that he will act in a certain way’, (1962) L.R.3R.P. 178, p. 195.
(
81
)	For an instance of reciprocal and informal communications, see the ‘Containers’ judgment of the Supreme Court of the United States, in which Judge Douglas on behalf of the majority stated that: ‘Here all that was present was a request by each defendant of its competitor for information as to the most recent price charged or quoted, whenever it needed such information and whenever it was not available from another source. Each defendant on receiving that request usually furnished the data with the expectation that it would be furnished reciprocal information when it wanted it. That concerted action is of course sufficient to establish the combination or conspiracy, the initial ingredient of a violation of paragraph 1 of the Sherman Act’, 393 US 333, 21 Led 2d 526, 895 Ct 510 (the passage cited is in paragraph 335).
(
82
)	Judgment in Züchner, at paragraph 21, emphasis added.
(
83
)	Judgment in ICI, cited above, at paragraph 118, emphasis added; see, on that point, Joliét, op. cit., at pp. 266 and 267.
(
84
)	Case 172/80, cited above, at paragraph 21, emphasis added.
(
85
)	Joliét, op. cit., p. 270.
(
86
)	Judgment in ICI, cited above, at p. 639, emphasis added.
(
87
)	Ibid., at paragraph 118, emphasis added.
(
88
)	Judgment in Züchner, cited above, at paragraph 14, emphasis added.
(
89
)	See Wathelet, Pratiques concertées et comportements parallèles en oligopole, RTDE, 1975, No 4, p. 663/699.
(
90
)	See Turner, The Definition of Agreement under the Sherman Act: Parallelism and Refusals to Deal, 75 Harvard Law Review 655 (1962) according to whom ‘conscious parallelism’ is the result of interdependence on concentrated oligopolistic markets and of a rational and individual response by the undertakings concerned (see pp. 665 and 666); that analysis has been challenged by Posner (see, in particular, Oligopoly and the Antitrust Laws: A Suggested Approach, 21 Stanford Law Review 1562 (1969) for whom conscious parallelism may instead constitute ‘tacit collusion’ and who advocates recourse to economic analysis in order to establish such collusion. Generally speaking, the subject of conscious parallelism has given rise to much discussion, which is summarized in Oppenheim, Weston and Mac Carthy, Federal Antitrust Law, 4th Ed., St Paul, Minn. West Publishing 1981, at p. 205 et seq.; reference may be made to the following publications in particular: Markham, The Nature and Significance of Price Leadership, 41 American Economic Review 891 (1951); Rahl, Conspiracy and the Antitrust Laws, 44 Nw. V. L. Rev. 743 (1950); Schermer, Industrial Market Structure and Economic Performance, 2nd Ed., 1980, especially Chapters 5 and 6, p. 151-199; Bork, the Antitrust Paradox: A Policy at War with itself, Basic Book, 1978, New York; Markovits, Oligopolistic Pricing Suits, the Sherman Act and Economic Welfare, 26 Stanford Law Review 493 and 717 (1974); see also all the texts reproduced in the Journal of Reprints for Antitrust Law and Economics, ‘Conscious Parallelism-The New Wave’, 1982, vol. XIII, De Jong, The Economics of Concerted Practices (Collusion) in European Competition Policy, 1973, Sijthoff-Leiden, p. 92, Aspects économiques du comportement parallèle sur le marché, CDE 1971, p. 550.
(
91
)	On ‘barometric’ price leaders see De Jong, op. cit., at p. 201; see also Wathelet, op. cit., at p. 685-687, who lays emphasis on the need for caution in relation to that concept, pointing out that it cannot constitute a ‘catchall category’ providing undertakings with an easy way out in explaining parallel conduct.
(
92
)	The doctrine of ‘price signalling’ was put forward for the first time by the Department of Justice in US v GM Corp., cited in the following footnote; reference must be made, in particular, to two cases: GE Westinghouse (see above) and the Federal Trade Commission's action in Ethyl Corporation and Du Pont de Nemours. In the latter case, the Federal Commission had considered that four manufacturers of antiknock gasoline additives, accounting for 80% of the market, had engaged in unfair methods of competition. The practices challenged were: the sale of the products in question at a price which included transportation costs, the giving by Ethyl and Du Pont of advance notice of price increases, over and above the 30 days stipulated in the contracts concluded with customers, and the use of a ‘most favoured nation’ clause under which the seller promised that no customer would be charged a higher price than other customers. The Federal Commission had considered that, although the adoption by the undertakings of those practices was non-collusive, their collective effect, by removing some of the uncertainties regarding price determination, was substantially to reduce competition by facilitating price parallelism at levels higher than might otherwise have been the case. The Federal Commission had stated that none of the practices at issue was by itself an unfair method of competition and none had been undertaken in agreement with the other manufacturers. However, their cumulative effect had been to reduce competition and they thus constituted a violation of the Federal Trade Commission Act. Accordingly, the Federal Commission had prohibited Ethyl and Du Pont from announcing price changes prior to the 30-day contractual period and from using the ‘most favoured nation’ clause. It must be emphasized that the Federal Commission did not charge the undertakings in question with any agreement. The order in question had been adopted on the basis of Section 5a(1) of the Federal Trade Commission Act which prohibits unfair methods of competition. However, the Court of Appeal, Second Circuit, considered that even under that provision — which is distinct from conspiracy under the Sherman Act — definable standards had to be applied in order to distinguish between normally acceptable business behaviour and unreasonable or unacceptable conduct. Otherwise, the door would be open to the arbitrary application of Section 5 of the Federal Trade Commission Act. The court considered that, for conduct to be considered unfair in an oligopolistic industry, a minimum standard demands, in the absence of a tacit agreement, at least some evidence of ‘Oppressiveness’, such as proof of anticompetitive intent or purpose or the absence of an independent legitimate business reason for the conduct complained of. If, for instance, a producer's conduct, even in the absence of identical behaviour on the part of his competitors, is contrary to his own independent self-interest, that would indicate that the business practice at issue is ‘unfair’. In this case, the court found unequivocal evidence that each undertaking had adopted its practices for legitimate business reasons. Moreover, it considered that the evidence of lessening of competition as a result of the practices challenged was not sufficient to permit the Federal Commission to prohibit them. The order was set aside (see E. I. Du Pont de Nemours and Co v FTC, 729, F. 2d/28, 2d Circ. 1984 in E. M. Fox and L. A. Sullivan, Cases and Materials on Antitrust, West Publishing, St Paul, Minn. 1989, p. 490 et seq.); on price signalling, see also US Department of Justice, A Section 1 Approach to Shared Monopoly Prosecution: Facilitating Devices (May 26, 1978), Trade Reg. Ref. ((H) Supplement to No 345 (August 8, 1978), reprinted in Journal of Reprints for Antitrust Law and Economics, 1982, p. 863 et seq.).
(
93
)	‘The public announcement of a pricing decision cannot be twisted into an invitation or signal to conspire; it is instead an economic reality to which all competitors must react’, United Suites v CM Corp., 2 Trade Cas. ((H) 97, 656 (E. D. Mich. 1974) at 97, 661; see also Kestenbaum, What is ‘Price Signalling’ and does it Violate the Law?, Antitrust Law Journal, 91 (1980), at p. 914, reprinted in Journal of Reprints for Antitrust Law and Economics, cited above, at p. 686; Joliét, op. cit., p. 268, and Korah, op. cit., p. 221.
(
94
)	Kestenbaum, op. cit-, at p. 914; that writer considers it doubtful, moreover, whether the First Amendment (freedom of speech) affords protection to such communications; see, on that point, in particular, E. T. Sullivan, First Amendment Defences in Antitrust Legislation, 46 Miss. Law Review 517 (1981), reproduced in Journal of Reprints for Antitrust Law and Economics, 1982, p. 909, at p. 951 et seq.
(
95
)	‘The warning signals will be the nature of the practices and the nature of the communications. I have referred to practices which are complex, unusual, artificial; and to communications which go beyond commercial needs or expectations, and which are also peculiar because of their content or because of their reciprocal character. Agreement may be inferred because the parties appear to have been acting out in public the intent to express commitments and to provide assurances to one another, or because of an overwhelming suspicion that there were undiscovered direct communications’, Kestenbaum, op. cit., p. 921.
(
96
)	See in that regard, the GE-Westinghouse case; according to the Department of Justice (see Journal of Reports for Antitrust Law and Economics, 1982, p. 739 et seq.; United States v General Electric Co. 1977 (E. D. Pa. 1977) in E. M. Fox and L. A. Sullivan, cited above, at p. 484 et seq.), General Electric had published a book containing simplified formulas for pricing turbine generators and worked examples, and had adopted a public policy of fixing prices which guaranteed each purchaser the benefit of any discount granted to another purchaser within six months of the date of purchase; it also published a list of outstanding bids whenever there was a price change; Westinghouse had adopted a policy that was similar in every respect. The Department of Justice took the view that, in so doing, Westinghouse had carefully sought to demonstrate its acceptance of General Electric's strategy with a view to stabilizing prices; on this case, see, in particular, Kestenbaum, who refers to the exceptionally complex nature of the practices in question (op. cit., pp. 916-917).
(
97
)	See the Opinion of Advocate General Mayras in ICI, cited above, at p. 675.
(
98
)	See Joliét, op. cit., p. 271; Flint, op. cit. at pp. 37-38; Wathelet, op. cit., p. 668; it should also be noted that Bellamy and Child, Common Market Law on Competition, 3rd Ed., Sweet and Maxwell, at p. 60, No 2-040, m referring to the ‘requisite elements’ of a concerted practice, do not envisage identical conduct.
(
99
)	Opinion of Advocate General Mayras in Dyestuffs, cited above, at p. 671.
(
100
)	Ibid., at p. 683.
(
101
)	Ibid.
(
102
)	See Bellamy and Child, op. cit., at p. 55, 2-033, ‘The inclusion of “concerted practices” in Article 85(1) is intended to bring within the Treaty informal cooperation between undertakings that is not characterized by any formal agreement or decision’.
(
103
)	‘L'article 85 ne condamne pas l'uniformité des comportements mais uniquement certains moyens par lesquels on l'obtient’, Wathelet, op. cit., p. 666; see, on that point, more generally M. R. Pfeiffer, op. cit., p. 119 et seq., where the author contrasts the ‘result-oriented approach’ and the ‘rule-oriented approach’, and takes the view that the Treaty of Rome adopted the latter.
(
104
)	‘Un simple comportement concomittant ne consume pas une pratique concertée mais peut au mieux fournir un indice permettant, grâce à des éléments ultérieurs de preuve, de conclure à l'existence d'une entente entre les parties intéressées’, Bortolotti, op. cit., No 176, at p. 10.
(
105
)	See, for example, the operative part of the judgment in Züchner, cited above: ‘Parallel conduct in the debiting of a uniform bank charge on transfers by banks from one Member State to another of sums from their customers' funds amounts to a concerted practice prohibited by Article 85(1) of the Treaty if it is established by the national court that such parallel conduct exhibits the features of coordination and cooperation characteristic of such a practice and if that practice is capable of significantly affecting conditions of competition in the market for the services connected with such transfers’.
(
106
)	ICI, cited above, at paragraph 66, emphasis added.
(
107
)	See Bellamy and Child who classify parallel behaviour as part of the evidence whilst pointing out that, on its own, it is insufficient to establish the existence of a concerted practice, although there will be ‘strong evidence’ of a concerted practice if such behaviour is unlikely to occur in normal market conditions (op. cit., p. 61, No 2-041); see also Turner, ‘conscious parallelism is never meaningful by itself, but always assumes whatever significance it might have from additional facts’, op. cit., p. 658.
(
108
)	See Wathelet, op. cit., at p. 665-667.
(
109
)	Apart from the references cited in footnote 91 above, see, in particular, Bortolotti, op. cit., at p. 3 et seq. and Joliét, op. cit., at p. 258 et seq.
(
110
)	See, in particular, Interstate Circuit v United States (306 US 208 (1939)); the manager of two corporations operating cinema theatres, which operated most of the first-run theatres in Texas and New Mexico, had sent an identical letter to eight film distributors containing two demands as a condition for the establishment of good commercial relations; the first demand was the imposition in subsequent-run theatres of a minimum admission charge, and the other was that first-run theatres should never show another film in conjunction with the first-run feature film; each tetter gave the name of all the addressees who ultimately agreed to comply with those demands. After pointing out that there was vigorous competition amongst the distributors, the Supreme Court considered that there was a strong interest in concerted action but that there were serious risks that without an ‘agreement’ different kinds of action would follow. It therefore considered itself unable to ascribe to mere chance the distributors identical reactions, a result which could not have been achieved ‘without some understanding that all were to join’. However, the judgment contains several far more general statements: ‘It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of conspirators... Acceptance by competitors, without previous agreement, of an invitation to participate in a plan... is sufficient to establish an unlawful conspiracy under the Sherman Act’; see also United States v Paramount Pictures (334 US 131 (1981)).
(
111
)	Theatre Enterprises Inc v Paramount Film Distributing Corp. (346 US 537 (1954), at paragraphs 540-541); the facts of the case were as follows: the manager of a suburban cinema had sought a licence from various distributors to exhibit first-run feature films shown in theatres in the centre of town. All the distributors concerned had refused, on the ground that their policy was to restrict first-run films to theatres situated in the centre of town for a given period of time. Apparently, each distributor knew that the others were aware, at the time of their reply, of their competitors' refusals; on this case see, in particular, Turner, op. cit., p. 65; Bortolotti, op. cit., p. 5; Joliet, op. cit., p. 261.
(
112
)	The principle was conceded, it would seem, in Eastern States Retail Lumber Dealer's Association v United States (234 US 600 (1914)): ‘conspiracies are seldom capable of proof by direct testimony, and may be inferred from the things actually done’.
(
113
)	Attorney General's Report in Oppenheim, cited above, at p. 201; the Report states that: ‘The significance of uniform action may depend, in any one instance, on a variety of factors. How pervasive is the uniformity? Does it extend to price alone or to all other terms and conditions of sale? How nearly identical is the uniformity? How long has the uniformity continued? What is the time lag, if any, between a change by one competitor and that of the other or others? Is the product involved homogeneous or differentiated? In the case of price uniformity, have the defendants raised as well as lowered prices in parallel fashion? Can the conduct, no matter how uniform, be adequately explained by independent business justifications? Upon the answers to questions like these depends the weight to be accorded parallel action in any given case. In short, evidence of uniformity will have varying probative significance depending on the particular business setting in which it occurs. Proof of independent business justification for the allegedly concerted conduct is, of course, always important to rebut agreement. No hard and fast rule can be formulated for all possible combinations of evidentiary features’.
(
114
)	Reference may be made here to a judgment of the Ober-landesgericht Stuttgart of 22 July 1983 (WvW, OLG 3113), holding that an infringement of Article 25 of the GWB (penalizing concerted practices under national law) is not established on the sole basis of evidence of very small differences in prices between undertakings submitting tenders which can be explained on grounds peculiar to each undertaking.
(
115
)	See, for example, Schapira, Le Tallec, Blaise, op. cit., p. 305.
(
116
)	Judgment of 28 March 1984, in Joined Cases 29 and 30/83 CRAM and Rheinzink v Commission [1984] ECR 1679, at paragraph 20.
(
117
)	Cited above.
(
118
)	Ibid, paragraph 16.
(
119
)	See, in this connection, the judgment of the Paris Court of Appeal of 15 November 1989 (the Yeast case) in which the view was taken that the documents seized established in the circumstances that the undertakings concerned had laid down a common strategy and it was therefore not essential to consider whether the parallel conduct could not be explained without concertation in the light of the characteristics of the market (Bulletin Officiel de la Concurrence, de la Concertation et de la Répression des Fraudes, 18 November 1989, p. 278); the Court of Cassation dismissed the appeal against that judgment (Chambre Commerciale, 14 January 1992, BOCCRF, 1 February 1992, p. 56).
(
120
)	Reference must be made to the English version of the decision, which alone is authentic in this case, and which specifies in paragraph 81 that ‘This concertation took place either between all addressees of this decision, or between addressees located in the same country or the same continent between individual addressees’ (unfortunately that passage omits the term ‘or’ between ‘continent’ and ‘between’, which makes it difficult to understand at first. The French version is not exactly identical: ‘Cette concertation a eu lieu entre tous les destinataires de la présente décision, et cela tant entre destinataires situés dans un même pays ou dans un même continent, qu'entre destinataires individuels’.
(
121
)	Although the same remarks apply to Article 1(2).
(
122
)	Still as regards softwood, zone 1.
(
123
)	Emphasis added.
(
124
)	See the first expert's report (original version, p. 15) which states that ‘the prices have been accurately summarized in Table 6 and in our opinion the information is sufficient to decide upon parallelism of announced prices’.
(
125
)	Paragraph 1.4.8., p. 34.
(
126
)	As the Commission itself acknowledges in its rejoinder, part B, paragraph 1.8, in Case 117/85.
(
127
)	Defence, at p. 54.
(
128
)	As is apparent from the passages taken from the PPI and produced by the Commission in an annex to its defence in Case 114/85.
(
129
)	There may be recalled in this connection, however, the uncertainty surrounding the evidence on which the Commission relied with regard to the prices announced by that producer.
(
130
)	Paragraph 1.4.8.
(
131
)	See the annex to the application of the Canadian producers, Vol III, Annex F, for instance Doc. 3: ‘We find that announced prices are ceilings and not minimums’ and Doc. 6: ‘We have known guaranteed costs for our basic raw material for a period of three to six months, together with assured supply for a similar period’.
(
132
)	This analysis is echoed in certain passages of the defence (see, in particular, 3.2 ‘Advance information’).
(
133
)	In this connexion it may be pointed out that, in describing the decision, the 14th Report on Competition Policy states that economic analysis snows in this case that ‘under the given circumstances the similarity of prices was — inexplicable unless there was concertation beforehand’, p. 64, emphasis added.
(
134
)	In the opinion produced by the Commission in support of its observations on the second expert's report. Professor Neumann points out that ‘as documented in the decision there is a lot of circumstantial evidence supporting the claim of the Commission that the wood pulp suppliers exercised tacit collusion’ (emphasis added). He goes on to say that ‘only a loose cooperation turned out to be feasible’ and that ‘the evidence collected by the Commission yields the strong suspicion that a framework of communication had been created’. Still according to Professor Neumann, it is the interest of each firm to inhibit defection by creating transparency, and ‘an open price system’ in which prices are communicated amongst sellers is a viable strategy to limit defection. In that regard, he takes the view that the existence of secret discounts constitutes, in this case, ‘clear evidence for collusion’ since otherwise secrecy would not be necessary.
(
135
)	See Annex F to the application submitted by the Canadian applicants, Docs 5 ana 9.
(
136
)	Ibid., Doc. 12.
(
137
)	Ibid., Doc. 16.
(
138
)	I am relying on the English version which refers to a period oí ‘rising prices’; the same passage in the French version, on the other hand, refers to a period of ‘baisse des prix’ [falling prices].
(
139
)	It should be noted that this argument is also used by the Commission, apparently to demonstrate the existence of ‘hidden’ direct contacts between undertakings (see above).
(
140
)	See, for example, the statement made by that purchaser in part F (Doc. 9) of Volume III of the annexes to the application submitted by the producers from British Columbia: ‘... we have business relations with most world producers and we therefore receive price announcements from all those who operate lawfully on the European market’.
(
141
)	See paragraph 199 in the common part of the application and part E of Annex F in Volume III of the annexes to the common part of the application submitted by the producers from British Columbia.
(
142
)	See, in particular, the letter from the Secretariat General of the Association of German Papermakers, part G, Doc. 10, in Volume III of the annex to the common part of the application submitted by the applicants from British Columbia.
(
143
)	IPS has stated, moreover, that it submitted this document in replying to the Statement of Objecdons.
(
144
)	See p. 77 et seq. of the annex in question.
(
145
)	It should be noted in this regard that IPS stated that it did not make use of the services of an independent agent but sold its pulp to customers itself.
(
146
)	It should be noted that one of the telexes produced by the applicant is wholly irrelevant since it concerns the prices announced on the Japanese market.
(
147
)	Defence, paragraph 3.3, at p. 37.
(
148
)	St. Anne points out in that regard that its own products were not in competition with those of other producers represented by common agents.
(
149
)	Let me point out that that telex is dated 22 May 1975 and specifies that KEA proposes to announce unchanged prices for the third quarter of 1975. Table 6 shows that KEA announced its price on 1 June 1975 but it also reveals that IPS, a producer who was a member of KEA at the time, had announced its prices on 21 May 1975. On that point, as on others, the decision does not contain any precise conclusions regarding the weight the Commission attaches to the telex in question, which it merely reproduces in support of the finding that producers learn the prices announced by their competitors very quickly.
(
150
)	See paragraph 17: ‘The announcements are made either orally, by telephone, in writing or by telex to customers, agencies or the specialist press (notably “Pulp and Paper International”, “Paper” and “Deutsche Papierwirtschart”), which publishes the information forthwith’; see also paragraph 108: ‘This applied particularly where prices were made known by the firms themselves, by being given to the trade press for immediate publication’.
(
151
)	Defence, paragraph 31, at p. 36.
(
152
)	The most significant exception concerns the Swedish producers who, in 1975, generally announced prices for a period of six months.
(
153
)	For specific details, see part F of Volume III of the annexes to the common part of the application submitted by the producers from British Columbia.
(
154
)	See Doc. 9 annexed to the application, letter of 23 December 1982 to the Commission.
(
155
)	See in that regard Docs. 1 to 12 in part G of Volume III of the annex to the common part of the application submitted by the producers from British Columbia.
(
156
)	Doc. 10 in Annex G.
(
157
)	Doc. 9 in Annex G to the application submitted by the Canadian producers.
(
158
)	According to a footnote to paragraph 2.11.1 of the rejoinder, on p. 39, ‘the fact that pricing was in US dollars meant that for all consumers and for most producers (including the Canadians) the price was unstable, because of exchange rate fluctuations’; the purchasers whose statements have been produced in the proceedings seem, however, to have favoured the use of that currency notwithstanding the drawback referred to by the Commission.
(
159
)	In this connection, moreover, reference must be made to the following statement by a purchaser: ‘When an increase is announced, it is a security for the paper industry if such announcement is made at the same time by the majority of manufacturers. As a matter of fact, if the market were no longer in the future following the practice which has been taking place since the beginning of the century, this could only have unfortunate effects on the economic activity of the paper industry and in particular the European paper industry,’Annex F Doc. 3, in Volume III of the annexes to the application submitted by the producers from British Columbia.
(
160
)	Or solely as between the Swedish producers, who have not instituted proceedings.
(
161
)	ITT Rayonier was a member of KEA, whereas Bowater was not.
(
162
)	For the sake of accuracy, there is one point that needs to be made. In carefully examining Bowater's announcements, I have found on the basis of its own figures two successive instances of the dates of its announcements coinciding with those of Weldwood for the second and third quarters of 1979. Weldwood announced its prices on 20 March and 15 June, whilst the Commission stated that Bowater had announced its prices at the beginning of March and the end of May. Bowater claims to have made its announcements on 20 March and 15 June. It may be pointed out, however, that, unlike Weldwood, Bowater's announcements relate to northern as opposed to southern softwood and that in both cases Bowater's prices were lower than Weldwood's. It should be noted, in that regard, that the actual dates of the announcements of the United States producers of southern softwood pulp, who are in competition with Bowater and are members of KEA, are not referred to in the table for the two quarters in question.
(
163
)	The decision included in its analysis of parallel conduct an analysis of the system of price announcements which was said to have given rise to artificial transparency; I have already considered that aspect of the decision.
(
164
)	With reference to this argument, it should be borne in mind that in so far as the decision establishes concertation on transaction prices, it must, in my view, be annulled on the procedural grounds examined earlier.
(
165
)	It should be noted that the Commission considers that from 1977 to 1978 there was no concertarion on transaction prices, although it established concertarion on announced prices.
(
166
)	The Finnish applicants deny that the Commission carried out an investigation into announced prices after 1977.
(
167
)	With regard to the second question, the only difference between the draft submitted to the parties and the task finally entrusted to the experts concerns the question whether the answer had to be qualified on the basts of the type or quantity of pulp sold.
(
168
)	See, on that point, in particular, Professor Neumann's analysis at pp. 5 to 8 of his opinion.
(
169
)	Let me point out that Professor Budd also criticized the decision in that respect, emphasizing that it is incorrect to suggest that prices depend on the costs of individual producers and stating that differences in costs lead to differences in profits; Professor Von Weiszäcker, for his part, considered that on a market for a homogeneous product such as pulp, the existence of homogeneous prices is not surprising whatever the difference in costs; low-cost suppliers did not have to announce prices lower than those of high-cost producers; they obtain market shares by offering lower transaction prices and the high-cost producers will be compelled to withdraw as they are unable to grant equal discounts; however, the situation is complicated by the fact that in the short term the relevant costs are marginal costs rather than total production costs. Marginal costs, which depend on capacity utilization ratios m a capital-intensive industry, will remain low as long as capacity is not used to the full. Accordingly, a high-cost producer could withstand competition in the short term as long as his marginal cost does not exceed the prices he obtains. The Commission, whilst acknowledging the theoretical accuracy of the model according to which identical prices can be expected for totally homogeneous products on a perfectly transparent market and that marginal costs will determine price strategies, has disputed the applicability of that model to the pulp market. It considers that marginal costs vary between producers, there is a large surplus capacity and a high cost of keeping plant idle, and the product is not totally homogeneous. In those circumstances, according to the defendant, pricing policies would be expected to be different, not identical.
(
170
)	Page 9 of the original version.
(
171
)	See page 25 of the report: ‘the traditional theory of competition among a large number of firms...’; moreover, at page 41 of the original version, the report refers to perfect competition (‘under perfect (atomistic) competition...’); however, it is not easy to determine in the context of that passage whether the experts consider that this model applies to the pulp market or whether that relationship is purely ‘theoretical’ since it directly precedes the reference to competitive oligopolies which, it is expressly stated on the other hand, reflected certain short-term situations on the pulp market.
(
172
)	Emphasis added.
(
173
)	However, paragraph 113 also refers to that scheme in stating that it coula not have compensated for the decline in demand in 1975 when prices remained stable.
(
174
)	The experts' conclusions regarding the fifth aspect, namely uniform prices over periods of changing demand, reiterate in substance their explanations, discussed earlier, concern ing rigidity of prices and parallel increases.
(
175
)	I note that at least one purchaser does not share that belief and considers it instead to be a matter on which there are differences of opinion between pulp manufacturers and papermakers, emphasizing that there can be a lasting increase in the price of pulp only if the paper market is expanding; that purchaser also claims never to have witnessed an artificial increase in the price of pulp leading a price increase in the paper market and is convinced that such a possibility is in the nature of a sales argument and not a serious economic analysis (Doc. 3, Annex F to the application submitted by the Canadian producers).
(
176
)	On this point, see below, (g.l).
(
177
)	The document in question is a letter sent by BCFP to its agent in Italy in 1978; the authenticity of that document, which predates the Statement of Objections, has not been challenged by the Commission. In that letter, after listing and recapitulating various credit notes for domestic transportation, the undertaking in question concludes as follows: ‘As a point to consider unless the buyers strongly object to showing these allowances on the invoices we would prefer showing these discounts on the face of the invoice. It would certainly simplify the payment procedure’ (Annex C-1 to BCFP's reply).
(
178
)	See Table 2 annexed to the decision and reproduced above; the table shows the market shares collectively held by the producers by country, although certain applicants maintain that the changes in individual market shares were far more marked.
(
179
)	Paragraph 3.2, at p. 36, emphasis added.
(
180
)	What is to be made of the passage in the rejoinder in which the Commission, examining Professor Hart's opinion, states that ‘the fact that the Commission's decision is silent as to the existence of a quota mechanism... does not mean that such a mechanism did not exist or that the Commission found no evidence of such a mechanism; still less does it mean that it must be presumed for the purpose of these proceedings that there was no such mechanism. In fact, in an industry with customer loyalty and longstanding supply arrangements between buyer and seller, there is less need for quota or output control by the cartel as each producer stays with his traditional customers’?
(
181
)	With regard to supply, the expert's report emphasizes the importance of new grades or pulp from South America and the introduction of new technical approaches to pulping adopted by new undertakings, especially in Canada, which have penetrated the pulp market. The market shares of Norscan pulp are lower than in 1981 and Norscan producers have correspondingly less influence in the market. Paper mills have improved their equipment in order to enable them to use the greater variety of grades of pulp available on the market and substitutability has increased. Finally, the acquisition of pulp-consuming undertakings in Europe by major suppliers in the Nordic countries and the United States has become widespread.
(
182
)	Bowater and St Anne expressly raised the objection that the decision had failed to deal with their specific circumstances, as did the applicants from British Columbia in Cases 125 to 129/85; the latter also laid particular emphasis on the fact that the decision did not examine their own arguments, as put forward during the administrative procedure. So far as is necessary, it should be borne in mind that, as the Court has consistently held (judgment of 21 December 1954 in Case 1/54 France v High Authority [1954 to 1956] ECR 1, and in Case 2/54 Italy v High Authority [1954 to 1956] ECR 37, judgment of 20 March 1959 in Case 18/57 Nold v High Authority [1959] ECR 41, and judgments of 7 May 1991 in Case C-304/89 Oliveira v Commission [1991] ECR I-2283, at paragraph 18, and C-291/89 Interhotel v Commission [1991] ECR I-2257, at paragraph 14), it may of its own motion examine infringements of essential procedural requirements.
(
183
)	Paragraph 1.6.
(
184
)	Emphasis added.
(
185
)	See, for example, the Court's judgment in Suiker Unie, cited above, at paragraph 174.
(
186
)	Professor Hart's opinion, however, essentially related to transaction prices inasmuch as, so far as the members of KEA were concerned, those prices differed from the announced prices; on the other hand, both Professor Jacquemin ana Professor Phlips maintained that parallelism of announced prices could be explained otherwise than by concertation.
(
187
)	See, for example, the judgment of 29 October 1980 in Joined Cases 209 to 215 and 218/78 Van Landewyck v Commission [1980] ECR3125, at paragraph 66; the judgment of 9 November 1983 in Case 322/81 Michelin v Commission [1983] ECR 3461, at paragraph 14; the judgment of 17 January 1984 in Joined Cases 43 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, at paragraph 22; the judgment of 21 February 1984 in Case 86/82 Hasselblad v Commission [1984] ECR 883, at paragraph 17; see, on that point, A. Phakos, Les droits de la défense et le droit communautaire de la concurrence, Bruyland, Bruxelles, 1987, p. 396.
(
188
)	Case 86/82, cited above, at p. 915.
(
189
)	Judgment of 17 October 1989 in Case 85/87 Dow Benelux v Commission [1989] ECR 3137.
(
190
)	‘Ces sanctions pécuniaires peuvent être infligées à des entreprises, sans que l'infraction ait été effectivement prouvée, par application de la théorie des faisceaux d'indices. Une action, voire même une omission, ayant un effet anticoncurrentiel, suffit en droit de la concurrence pour infliger une sanction aux intéressés. Ceci nous semble contraire aux principes élémentaires des droits de la défense, car la sanction administrative, dans ce cas, tout comme la sanction pénale, doit être prononcée au vu des griefs établis et pas seulement sur la base de convictions. Plus grave encore, les amendes prononcées par le Conseil de la concurrence et la Commission de Bruxelles sont parfois infligées aux intéressés qui n'ont pas pu apporter la preuve de leur innocence. La charge de la preuve semble être renversée puisqu'il suffit qu'u y ait parallélisme des comportements pour prouver l'entente, laissant ainsi le soin aux entreprises de démontrer le contraire’. M. S. E. Helali in La Convention européenne des droits de l'homme et les droits français et communautaire de la concurrence, RTDE 1991, No 4, p. 609 at pp. 627 and 628.
(
191
)	Bruylant, Bruxelles 1987.
(
192
)	‘ne pas faire état dans une décision des moyens allégues par les parties peut aboutir à autoriser la Commission à se contenter de constatations vagues et générales ou, plus grave encore, à déplacer le débat devant le prétoire de la Court ce qui, outre le renversement de la preuve, est de nature à vider purement et simplement de son sens l'institution d'une procédure contradictoire’. Op. cit., p. 398, emphasis added.
(
193
)	‘seraient singulièrement méconnus si l'entreprise, pour connaître la réponse de la Commission aux moyens qu'elle a développés, devait intenter un recours devant la Cour de Justice, sans pouvoir réfuter dans le recours introductif d'instance, une réponse qui ne lui a pas été donnée et ne prendre connaissance de cette réponse dans la meilleure hypothèse qu'à la réception du mémoire en réponse. Si, au contraire, la Commission était obligée de répondre, sa décision ne pourrait que gagner en qualité et en force persuasive. Si les moyens ne sont pas fondés, il lui sera aisé de les réfuter. S'ils le sont, la décision sera différente. Dans un cas comme dans l'autre, la situation sera beaucoup plus satisfaisante: pour la Cour d'abord que sera mieux informée, et dont le contrôle se fera plus aisément; pour la Commission qui, en raison de la discipline qui lui est imposée, cernera mieux la réalité en fait et en droit, pour l'entreprise enfin dont les droits légitimes seront sauvegardés’. L. Goffin in La jurisprudence de la Court de justice sur les droits de la défense. Cahiers de droit européen, 1980, p. 127 at p. 139.
(
194
)	For example, the judgment of 30 September 1982 in Case 108/81 Amylum v Council [1982] ECR 3107.
(
195
)	For example, the judgment of 3 July 1985 in Case 3/83 Abrias v Commission [1985] ECR 1995.
(
196
)	Emphasis supplied in the text of the Commission's answers.
(
197
)	Nor docs the telex mentioned in paragraph 62 from Rayonier New York to Rayonier London of 13 September 1974, which refers to meetings between Scandinavian producers, establish in my view the participation of that undertaking, which is not an applicant in this case, in those meetings.
(
198
)	Furthermore, Weyerhaeuser explained in its application that in 1973 it had concluded an important contract with a Netherlands undertaking, part of whose capital is held by MacMillan. That contract stipulated that the prices were to be fixed either every three months or every six months on the basis of market conditions in Western Europe. Those circumstances would explain how it was possible for MacMillan to be informed of Weyerhauser's intentions. The Commission has not replied to that point.
(
199
)	A Swedish pulp and paper association which is not an applicant in this case.
(
200
)	It should be borne in mind that Westar was formerly called Cancel.
(
201
)	Paragraph 67 of the decision sets out a note from that producer concerning a meeting with SCA, a Swedish producer who is not an applicant either, referring to the latter's attitudes with regard to prices and its assessment as to what pulp suppliers should do in order to stabilize prices.
(
202
)	It will be noted that the Court's judgment of 27 September 1988 declared the decision void so far as it concerned KEA itself, which is specified in Article 1(3) of the decision as having recommended prices on the basis of Article 11(A) of its policy statement.
(
203
)	Namely, Chesapeake Corporation, Crown Zellerbach, Federal Paper Board Company, Georgia Pacific Corporation, International Pulp Sales Company, 111 Rayonier, Mead Corporation, Scott Paper Company and Weyerhaeuser.
(
204
)	Reply, pp. 33 and 34.
(
205
)	See Annex 15.1 to the first expert's report.
(
206
)	‘Addressees 4, 29, 34, 36 and 40 to 43 by concerting on announced and actual transaction prices and exchanging within the framework of Fides individualized data concerning prices for deliveries of bleached sulphate hardwood pulp to the European Economic Community from 1973 to 1977’.
(
207
)	A ‘groupement d'intérêt économique’ [economic interest grouping] comprising various French papermakers, the Institut Français pour le Développement Industriel and, until 1980, MacMillan Bloedel. GEC went into liquidation in February 1981.
(
208
)	A similar infringement was established against ITT Rayonier, which was not fined and is not an applicant in these proceedings, and against various Scandinavian producers, who are not applicants either.
(
209
)	Canadian Forest Products Ltd (addressee 2).
(
210
)	See paragraphs 72 to 76 of the decision.
(
211
)	See, for example, the judgment of 11 July 1989 in Case 246/86 Belasco v Commission [1989] ECR 2117, at paragraph 41, in which the Court pointed out that ‘it is not necessary for an undertaking to have been aware that it was infringing Article 85...; it is sufficient that it could not have been unaware that the contested conduct had as its object the restriction of competition’.
(
212
)	Judgment of 13 July 1966 in Joined Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECR 299, at p. 342; see, in connection with an ‘export prohibited’ clause, the judgment of 11 January 1990 in Case C-277/87 Sandoz v Commission [1990] ECR I-45 (summary publication), especially point 3 of the summary of the judgment, at p. 46.
(
213
)	Judgment in Sandoz, cited above, point 3 of the summary of the judgment, at p. 46.
(
214
)	Judgment of 21 February 1984 in Case 86/82 [1984] ECR 883.
(
215
)	Paragraph 46.
(
216
)	Cited above.
(
217
)	Judgment of 25 October 1983 in Case 107/82 AEG v Commission [1983] ECR 3151.
(
218
)	Judgment of 7 June 1983 in Joined Cases 100 to 103/80 [1983] ECR 1825.
(
219
)	Paragraph 86, emphasis added.
(
220
)	In the event of the Court deciding not to follow my proposal to annul Article 1(1) and (2) of the decision, it can refer to the observations which follow so far as concerns the arguments relating to the absence of intra-Community trade in wood pulp, and note that the addressees of the decision, as is pointed out in paragraph 140 and has not been contested, supply some 60% of the bleached sulphate pulp used in the Community.
(
221
)	Judgment of 30 January 1985 in Case 123/83 BNIC v Clair [1985] ECR 391, at paragraph 29.
(
222
)	This argument was put forward by counsel for the Finnish applicants in the common part of the oral observations; let me point out, however, that, so far as concerns those applicants, the allegation of discrimination is not set out in the application.
(
223
)	For example, the judgments of 5 October 1988 in Case 301/85 Sharp Corporation v Council [1988] ECR 5813, at paragraph 22, Joined Cases 260/85 and 106/86 TEC v Council [1988] ECR 5855, at paragraph 18, and Joined Cases 273/85 and 107/86 Silver Seiko v Council [1988] ECR 5927, at paragraph 55.
(
224
)	[1988] ECR 5841, at p. 5844.
(
225
)	According to the Finnish applicants, the Commission had initially promised that no decision would be adopted in relation to them if the undertaking was signed; in any event, consideration of the annexes to Finncell's application reveals the existence of a letter of 9 December 1984 from the applicants' counsel to Mr Andriessen, a Member of the Commission, which reads as follows: ‘I confirm that the Finnish respondents are prepared to give the same undertaking if the Commission determines to issue a decision...’, and it goes on to state ‘the Finnish respondents would like to ask you, to honour the extraordinary efforts which they have made in order to achieve a settlement and their readiness to commit themselves in such a way even in the case of a decision’.
(
226
)	See, in that connection, in particular, the judgment of 31 March 1965 in Case 21/64 Macchiorlati v High Authority [1965] ECR 175, in which, in rejecting the argument that certain officials had offered a verbal assurance that a surcharge would be remitted, the Court stated, in particular, that ‘the general rules of law governing the exercise of administrative authority and the validity or efficacy of compromises would have required that this assurance be expressly approved by the responsible officers of the High Authority’ (emphasis added, p. 189).
(
227
)	The decision did not impose a fine on account of participation in KEA, as is stated below.
(
228
)	However, support for the contrary view might be derived from the Court's judgment of 30 January 1985 in Case 35/83 BAT v Commission [1985] ECR 363, whose precise import seems to me to be unclear.
(
229
)	Paragraph 131 of the decision.
(
230
)	Ibid.
(
231
)	See Table 5 annexed to the decision.
(
232
)	See, in that regard, paragraphs 72 to 76 of the decision.
(
233
)	It should be pointed out that this applies to KEA, in relation to which the Court declared the decision void in its earlier judgment in this case.