62007CC0322_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. This case concerns the appeals brought by three carbonless paper producers, Papierfabrik August Koehler AG (C‑322/07 P, ‘Koehler’), Bolloré SA (C‑327/07 P, ‘Bolloré’) and Distribuidora Vizcaína de Papeles, SL (C‑338/07 P, ‘Divipa’), against the judgment of the Court of First Instance of the European Communities of 26 April 2007 in Bolloré and Others
v Commission . (2)
2. In the judgment under appeal the Court of First Instance dismissed the actions for annulment brought by the applicants against Commission Decision 2004/337/EC, (3) in which the Commission found that they had participated in a complex of agreements and concerted practices on the market in carbonless paper, in breach of Article 81 EC.
3. In the present appeals, the appellants call in question first of all the lawfulness of the proceedings before the Court of First Instance. In particular, Bolloré complains that the Court of First Instance did not draw all the necessary conclusions regarding the lawfulness of the contested decision, in view of the infringement by the Commission of the European Communities of Bolloré’s rights of defence during the administrative procedure.
4. In addition, the appellants complain that the Court of First Instance infringed Article 81(1) EC by distorting certain evidence relating to their participation in the infringement and to the duration of that infringement. They also challenge its finding with regard to the calculation of the fines imposed by the Commission under Article 15(2) of Regulation No 17 of the Council, (4) claiming in particular infringement of the principles of equal treatment and proportionality. Lastly, one of the appellants complains that the judgment under appeal is vitiated by an inadequate statement of reasons as regards the assessment of attenuating circumstances.
5. In this Opinion I shall propose that the Court set aside the judgment under appeal in so far as the Court of First Instance erred in law by failing to draw all the necessary conclusions from the Commission’s infringement of Bolloré’s rights of defence. I shall argue that, since Bolloré was unable to defend itself against the objection alleging its personal and direct involvement in the activities of the cartel, the Court of First Instance should have annulled the contested decision in so far as it was based on that objection.
6. I shall, however, propose that the Court dismiss the appeals brought by Koehler and Divipa.
7. As I consider that in the present case the state of the proceedings permits judgment to be given, I shall propose that the Court give final judgment on Bolloré’s plea alleging infringement of its rights of defence. At the end of the presentation I shall invite the Court to annul the contested decision in so far as it is based on evidence implicating Bolloré personally and directly in commission of the infringement.
I – Legal background
8. Article 81 EC prohibits ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market’.
9. If that provision is infringed the Commission may, pursuant to Article 15(2) of Regulation No 17, ‘impose on undertakings or associations of undertakings fines of from [EUR 1 000] to [EUR 1 million], or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement’.
10. In order to ensure the transparency and impartiality of the Commission’s decisions, in the eyes of the undertakings and of the Community judicature alike, in 1998 the Commission published guidelines defining the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17. (5)
11. Section 1 of the Guidelines provides that, for calculating the amount of fines, the basic amount will be determined according to the criteria referred to in Article 15(2) of Regulation No 17, namely the gravity and duration of the infringement.
12. First, In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market (Section 1 A, first paragraph, of the Guidelines). In this connection, infringements will be put into one of three categories: ‘minor infringements’, for which the likely fines are between EUR 1 000 and EUR 1 million; ‘serious infringements’, for which the fine may range from EUR 1 million to EUR 20 million; and ‘very serious infringements’, for which the fine exceeds EUR 20 million (Section 1 A, second paragraph, first to third indents of the Guidelines).
13. Secondly, the gravity of the infringement is assessed in relation to the characteristics of each of the undertakings concerned. Within each of the categories, the proposed scale of fines makes it possible to apply differential treatment to undertakings according to the nature of the infringement committed. The Commission thus takes account of the effective economic capacity of the undertakings concerned to cause damage, and sets the fine at a level which ensures that it has a sufficiently deterrent effect (Section 1 A, fourth paragraph, of the Guidelines). At that stage the Commission may classify the undertakings in different categories and apply a weighting to the starting amount of the fine for each undertaking.
14. Thirdly, the Commission takes account of the duration of the infringement.
15. Under Sections 2 and 3 of the Guidelines, the Commission may also take account of certain aggravating or attenuating circumstances in order to increase or reduce the basic amount.
16. Also, under Section 4 of the Guidelines, the Commission may apply its Notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases. (6)
17. As a general comment, Section 5(a), first paragraph, of the Guidelines states that the final amount of the fine may not in any case exceed 10% of the worldwide turnover of the undertakings, as laid down by Article 15(2) of Regulation No 17.
II – Facts
18. The facts, as they are stated in the judgment under appeal, may be summarised as follows.
19. The facts in this case, as set out in paragraphs 1 to 21 of the judgment under appeal, may be summarised as follows.
20. Having been informed of the alleged existence of a secret cartel among undertakings in the carbonless paper sector, the Commission carried out investigations at the premises of a number of producers pursuant to Article 14(2) and (3) of Regulation No 17. In 1999 the Commission also sent requests for information pursuant to Article 11 of Regulation No 17 to several companies, some of which admitted their attendance at multilateral cartel meetings.
21. Mougeot SA (‘Mougeot’), which had agreed to cooperate in the investigation pursuant to the Leniency Notice, admitted that there was a cartel for fixing prices in the carbonless paper sector and provided the Commission with information on the structure of the cartel and in particular on the various meetings attended by its representatives.
22. On 26 July 2000 the Commission initiated the procedure in the present cases and adopted a statement of objections, which it addressed to 17 undertakings, including Bolloré and its subsidiary Copigraph SA (‘Copigraph’), Divipa and Koehler. Most of the undertakings submitted written observations in reply to the objections raised by the Commission. A hearing took place on 8 and 9 March 2001 and the Commission adopted the contested decision on 20 December 2001.
23. In the first paragraph of Article 1 of that decision, the Commission found that eleven undertakings had infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area, signed on 2 May 1992, (7) by participating in a complex of agreements and concerted practices in the carbonless paper sector.
24. In the second paragraph of Article 1 of that decision, the Commission found, in particular, that Arjo Wiggins Appelton plc (‘AWA’), Bolloré, Koehler, Sappi Ltd (‘Sappi’) and three other undertakings had participated in the infringement from January 1992 to September 1995, Divipa from March 1992 to January 1995 and Mougeot from May 1992 to September 1995.
25. Under the first paragraph of Article 3 of the contested decision, the Commission imposed a fine of EUR 33.07 million on Koehler, EUR 22.68 million on Bolloré and EUR 1.75 million on Divipa.
III – The proceedings before the Court of First Instance and the judgment under appeal
26. By separate applications lodged at the Registry of the Court of First Instance in April 2002, Bolloré, Koehler and Divipa and six other undertakings to which the contested decision was addressed brought actions for the annulment of that decision.
27. By the judgment under appeal, the Court of First Instance dismissed inter alia the actions brought by Bolloré, Koehler and Divipa.
IV – Proceedings before the Court of Justice and forms of order sought
28. Under Article 56 of the Statute of the Court of Justice, Koehler, Bolloré and Divipa, by applications lodged at the Registry of the Court of Justice on 12, 13 and 20 July 2007, respectively, brought appeals against the judgment under appeal.
29. In Case C‑322/07 P, Koehler asks the Court to set aside the judgment under appeal; annul the contested decision; in the alternative, reduce the fine imposed on it; in the further alternative, refer the case back to the Court of First Instance for determination in accordance with the judgment of the Court of Justice as to the law and, in any event, order the Commission to pay the costs of the proceedings before the Court of First Instance and the Court of Justice.
30. In Case C‑327/07 P, Bolloré asks the Court to set aside the judgment under appeal; give final judgment and annul the contested decision or, in any event, reduce the fine imposed on it; in the event that the Court does not itself decide on this case, reserve the costs and refer the case back to the Court of First Instance for reconsideration in accordance with the Court’s judgment, and order the Commission to pay the costs of the proceedings at first instance and on appeal.
31. In Case C‑338/07 P, Divipa claims that the Court should declare the appeal admissible and well-founded; set aside in whole or in part the judgment under appeal and give judgment expressly on the substance or refer the case back to the Court of First Instance; cancel or reduce the fine imposed in the contested decision, and order the Commission to pay the costs of the proceedings before the Court of First Instance and the Court of Justice.
32. In Cases C‑322/07 P and C‑338/07 P the Commission asks the Court to dismiss the appeal and order the appellants to pay the costs.
33. In Case C‑327/07 P, the Commission asks the Court, primarily, to dismiss the appeal as being in part inadmissible and unfounded; in the alternative, to dismiss the appeal as unfounded, and, in any event, to order the appellant to pay the costs.
V – Grounds of the appeals
A – Pleas put forward by Koehler (C‑322/07 P)
34. Koehler puts forward two pleas in support of its appeal.
35. In its first plea it challenges the assessment of the Court of First Instance in relation to the duration of the infringement it committed. In that regard, Koehler maintains that that Court distorted the evidence put before it, that it also failed to comply with its duty to state reasons and, lastly, that it infringed Koehler’s rights of defence.
36. In support of its second plea Koehler maintains that the Court of First Instance infringed the principles of equal treatment and proportionality in its assessment of the amount of the fine imposed by the Commission under Article 15(2) of Regulation No 17.
B – Pleas put forward by Bolloré (C‑327/07 P)
37. Bolloré puts forward two pleas in support of its appeal.
38. In support of its first plea Bolloré complains that the Court of First Instance failed to assess correctly the conclusions to be drawn from the Commission’s infringement of its rights of defence during the administrative procedure.
39. In support of its second plea Bolloré claims that the Court of First Instance infringed Article 81(1) EC by distorting the clear sense of the evidence on which it based its assessment of the duration of the infringement and by failing to comply with its obligation to state reasons.
C – Pleas put forward by Divipa (C‑338/07 P)
40. Divipa, for its part, puts forward four pleas in support of its appeal.
41. In support of its first plea it complains that the Court of First Instance took an excessive length of time to give judgment, thus infringing the principle that proceedings must be disposed of within a reasonable time.
42. By its second plea Divipa maintains that the Court of First Instance infringed Article 81(1) EC by distorting the clear sense of certain evidence in its assessment of Divipa’s participation in the infringement.
43. In support of its third plea Divipa also complains that the Court of First Instance infringed the principle of proportionality in its assessment of the amount of the fine imposed by the Commission under Article 15(2) of Regulation No 17.
44. Lastly, in its fourth plea Divipa claims that the judgment under appeal is vitiated by an inadequate statement of reasons so far as the assessment of attenuating circumstances is concerned.
VI – Joining the appeals and dealing with them in this Opinion
45. On account of the connection between them, the present cases were joined for purposes of the final judgment, under Article 43 of the Rules of Procedure. Since some of the pleas put forward by the appellants overlap, I have chosen to deal with them jointly, for reasons of clarity.
46. For the purposes of my assessment, I shall examine first of all the pleas relating to alleged procedural irregularities that may have vitiated the judgment under appeal. In that regard, I shall consider the plea put forward by Bolloré alleging infringement of its rights of defence and then consider the plea put forward by Divipa alleging the excessive duration of the proceedings.
47. I shall examine, secondly, the pleas alleging infringement of Article 81(1) EC in so far as the Court of First Instance distorted the clear sense of the evidence on which it based its assessment of the appellants’ participation in the infringement and the duration of that infringement.
48. Thirdly, I shall assess the pleas alleging that the Court of First Instance infringed the principles of equal treatment and proportionality in its assessment of the amount of the fines imposed by the Commission.
49. Fourthly and lastly, I shall examine whether the judgment under appeal is vitiated by an inadequate statement of reasons as regards the assessment of attenuating circumstances.
50. Before beginning my assessment I should like to make some preliminary observations concerning the scope of the power of review exercised by the Court of Justice in an appeal.
VII – Preliminary observations concerning the scope of the review exercised by the Court of Justice in the present appeals
51. In an appeal, the task of the Court of Justice is merely to examine whether the Court of First Instance erred in law in the exercise of its power of review.
52. According to the second subparagraph of Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal is to be limited to points of law and may lie on the grounds of lack of competence of the Court of First Instance, a breach of procedure before that Court or the infringement of Community law by the latter. Also, under Article 112(1)(c), of the Rules of Procedure of the Court of Justice, the appeal must contain the pleas in law and legal arguments relied on.
53. On the basis of those provisions, the Court of Justice has laid down the conditions for the admissibility of appeals brought against judgments of the Court of First Instance.
54. First, the Court has ruled that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal. (8)
55. Secondly, the Court has held that an appellant cannot put forward for the first time before it pleas in law and arguments which it has not raised before the Court of First Instance. That would be to authorise a party to bring before the Court of Justice a case of wider ambit than that which came before the Court of First Instance, even though in an appeal the jurisdiction of the Court of Justice is limited. (9)
56. Thirdly, the Court has held that an appeal is inadmissible if the appellant simply repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance without describing and identifying the error of law allegedly vitiating the judgment. In that case, the Court has held that an appeal amounts in reality to no more than a request enabling the appellant to obtain re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake. (10) By contrast, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, according to the Court of Justice, if an appellant could not base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose. (11)
57. It is also clear from the abovementioned provisions that an appeal can be based only on pleas in law relating to infringements of rules of law. Pleas relating to the assessment of facts are, in principle, regarded as inadmissible, except in two cases expressly referred to in case-law.
58. In principle, the Court of First Instance has exclusive jurisdiction, to find and to assess the facts. It is also for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it, provided that the evidence has been properly obtained and the general principles of law and rules of procedure in relation to the burden of proof and the taking of evidence have been observed. (12)
59. In that case, the Court of Justice has jurisdiction under Article 225 EC only to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. (13)
60. Therefore, in the implementation of Article 81 EC and Article 15 of Regulation No 17 in particular, the purpose of review by the Court of Justice is twofold. First, the Court must examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of the undertaking’s conduct in the light of Article 81 EC and Article 15 of Regulation No 17. Secondly, it must consider whether the Court of First Instance responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced. (14) However, it is not for the Court of Justice to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings. (15)
61. As mentioned above, there are two cases where the Court may hear complaints based on findings of fact and on the assessment of those facts. (16)
62. The first case is one in which the appellant claims that the Court of First Instance has made findings whose substantive inaccuracy is apparent from the documents in the file.
63. The second case is one in which the appellant claims that the Court of First Instance has distorted the clear sense of the evidence before it. In that case, the Court of Justice, which does not, in principle, have jurisdiction to review the evidence accepted in support of the facts by the Court of First Instance, may conduct a judicial review. The appellant must then state clearly the evidence allegedly distorted by the Court of First Instance and demonstrate the errors of assessment which, in its view, led the Court of First Instance to such distortion. It is settled case‑law that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence or obtain fresh evidence. (17)
64. The admissibility of the pleas and arguments put forward by the appellants in the present appeals will be examined on the basis of those considerations.
VIII – Pleas relating to alleged procedural irregularities
65. Under Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, the Court of Justice has jurisdiction to verify whether a breach of procedure adversely affecting the appellants’ interests was committed before the Court of First Instance. It must satisfy itself in that regard that the general principles of Community law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed. (18)
66. The Court has held that the right to fair legal process, including the principles of observance of the rights of the defence and the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law. (19)
67. It is appropriate now to consider the pleas put forward by Bolloré and Divipa, alleging that the proceedings before the Court of First Instance were unlawful.
A – First plea: incorrect assessment of the consequences of the Commission’s infringement of Bolloré’s rights of defence
68. Bolloré complains that the Court of First Instance infringed its rights of defence by failing to draw all the necessary conclusions from the Commission’s infringement of its right to be heard and to defend itself during the administrative procedure as regards its direct involvement in the infringement.
1. The judgment under appeal
69. Before the Court of First Instance, Bolloré maintained that, at the statement of objections stage, the Commission established its participation in the infringement merely on the basis of its liability as a parent company for the conduct of its subsidiary Copigraph. However, the contested decision, in its view, contained a new objection, alleging its personal and independent involvement in the cartel. Bolloré claimed that by not offering it the opportunity to comment on that objection at the time of the administrative procedure the Commission infringed the principle of observance of the rights of the defence so far as it was concerned.
70. After setting out the relevant case-law on that principle in paragraphs 66 to 68 of the judgment under appeal, the Court of First Instance held in paragraph 79 of that judgment that the statement of objections had not enabled Bolloré to acquaint itself with the objection alleging its direct involvement in the infringement, or even with the facts established by the Commission in the contested decision in support of that objection, so that Bolloré was unable properly to defend itself during the administrative procedure vis-à-vis that objection and the facts in question.
71. None the less, later in its assessment the Court of First Instance held that infringement by the Commission of the principle of observance of the rights of the defence was not sufficient to justify annulment of the contested decision. According to that Court that procedural irregularity had no decisive effect on the operative part of the decision, since the Commission was correct to hold Bolloré liable for the participation of its subsidiary Copigraph in the cartel.
72. The reasoning of the Court of First Instance was as follows:
‘80. 	However, even if the [contested] decision contains new allegations of fact or law on which the undertakings concerned have not been given the opportunity to comment, the defec t will only entail the annulment of [that] decision in that respect if the allegations concerned cannot be substantiated to the requisite legal standard on the basis of other evidence in [that] decision on which the undertakings concerned were given the opportunity to comment. [(20) ] Moreover, infringement of Bolloré’s rights of defence is only capable of affecting the validity of the [contested] decision relating to Bolloré if [that] decision is based purely on the fact of Bolloré’s direct involvement in the infringement. [(21) ] In that case, since the new objection in [that] decision relating to Bolloré’s direct involvement in the cartel activities could not be upheld, Bolloré could not be held liable for the infringement.
81. Conversely, if it transpires, when examining the substance (see paragraphs 123 to 150 [of the judgment under appeal]), that the Commission was correct to hold Bolloré liable for the participation of its subsidiary Copigraph in the cartel, the fact that the Commission erred in law cannot be sufficient to justify annulment of the [contested] decision because it could not have had a decisive effect on the operative part adopted by the Commission. [(22) ] According to settled case-law, in so far as certain grounds of a decision in themselves provide a sufficient legal basis for that decision, any errors in other grounds of the decision have no effect in any event on its operative part. [(23) ]’
73. In paragraphs 123 to 149 of the judgment under appeal, the Court of First Instance established that Bolloré should be held liable for the infringement of its subsidiary Copigraph on account of the latter’s participation in the cartel. It concluded from this, in paragraph 150 of the judgment under appeal, that ‘[i]rrespective of any direct involvement in the infringement, which the Court has ruled out (see paragraphs 66 to 81 [of the judgment under appeal]), Bolloré’s liability for the infringement is therefore established’.
74. It was in the light of all those considerations that the Court of First Instance rejected Bolloré’s plea alleging infringement of the rights of the defence and of the adversarial principle as a result of inconsistency between the statement of objections and the contested decision.
2. Arguments of the parties
75. Bolloré claims that the Court of First Instance was wrong to reject its plea for annulment of the contested decision in which it alleged that the Commission, after addressing a statement of objections to Bolloré in which the latter was held liable only for the infringement committed by its subsidiary Copigraph, went on to censure it in the contested decision because of its direct personal involvement in the activities of the cartel. In Bolloré’s view, the Court of First Instance infringed the principle of observance of the rights of the defence, first, by refusing to annul the contested decision in so far as it was concerned and, secondly, by asserting that the irregularity found did not affect the operative part of that decision.
76. In support of its claim, Bolloré relies first on a number of judgments of the Court of Justice and of the Court of First Instance in the fields of anti-competitive practices and of merger law and contends that, by failing to annul the contested decision although the statement of objections was incomplete, the Court of First Instance infringed the rights of the defence. (24)
77. Secondly, Bolloré contends that the case-law on which the Court of First Instance relied is irrelevant. On the one hand, the first set of judgments cited in paragraph 80 of the judgment under appeal concerns a different situation from that in the present case. In those judgments the Community judicature found a lack of precision in the statement of objections which did not concern the determination and precise identification of liability, but merely facts, namely, the activities complained of. On the other hand, the second set of judgments also listed in paragraph 80 of the judgment under appeal is even less relevant to the discussion. Those judgments concern merger control and State aid proceedings.
78. Thirdly, Bolloré challenges the ‘end-result approach’ taken by the Court of First Instance in respect of the rights of the defence, whereby a measure is declared void only if the infringement of the rule in question damages the interests of the party concerned. That approach cannot be taken to all procedural infringements, in particular in the present case.
79. Fourthly, Bolloré takes issue with the Court of First Instance’s finding that there was no reason to annul the operative part of the contested decision in so far as it concerned Bolloré, since that would have had no effect on the amount of the fine of EUR 22.68 million imposed on it. It contends that that reasoning is vitiated by an error of law since it does not take into account the way in which that amount was calculated.
80. The Commission considers the arguments to be inadmissible since they repeat arguments already made before the Court of First Instance and, in any event, they are unfounded since Bolloré has been held liable for the activities of its subsidiary Copigraph, and that liability is not in dispute. It contends that the basis of the contested decision so far as Bolloré is concerned is only, as the Court of First Instance confirmed in the judgment under appeal, its liability for the activities of its subsidiary. According to the Commission, the Court of First Instance merely applied Community case-law in the traditional way.
3. Assessment
81. I consider the judgment under appeal to be vitiated by an error of law in that the Court of First Instance failed to draw all the necessary conclusions from the Commission’s infringement of the rights of the defence which, as is well-known, constitute a fundamental principle of the Community legal system. (25)
82. I do not consider the Court of First Instance’s reasoning to be satisfactory. Although it acknowledges the fundamental nature of that principle and the requirements it entails, the Court of First Instance held that the Commission’s infringement of Bolloré’s rights of defence was not sufficient to justify annulment of the contested decision since the Commission’s error had no decisive effect on the operative part of that decision. The Court of First Instance therefore, in one paragraph of the judgment under appeal, simply ruled out the objection concerning Bolloré’s personal and direct involvement in the infringement.
83. If, as the Court of First Instance states, the rights of the defence constitute a ‘fundamental principle of Community law’, should not the sanction necessarily be that the contested decision or, in any event, the evidence on which the undertaking has been unable to defend itself should be declared void?
84. In giving precedence to the efficiency of the administrative procedure, the Court of First Instance’s stance causes me to have certain reservations. It amounts to calling into question the fundamental nature of the principle of observance of the rights of the defence in what might be described as ‘quasi-criminal’ proceedings in which the Commission enjoys a very broad discretion and where judicial review is restricted.
85. Before considering the arguments on which my assessment is based, it is appropriate to recall the case-law of the Court concerning observance of the rights of the defence in a proceeding pursuant to Article 81 EC.
a) Community case-law concerning observance of the rights of the defence in a proceeding pursuant to Article 81 EC
86. The Court has expressly recognised the general principle of Community law that everyone is entitled to a fair hearing. (26) That right draws on Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). (27)
87. That provision states that ‘[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.
88. As regards more specifically the rights of the defence, these occupy an important place in the Commission’s conduct of the administrative enquiry procedure into infringements of Articles 81 EC and 82 EC. (28) The Court of Justice has stated on a number of occasions that observance of those rights is in this respect a fundamental principle of Community law. (29)
89. The substance of those rights has been constantly defined over time by case-law and given concrete expression by the Community legislature. (30)
90. As the Court has held, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its 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 of the EC Treaty. (31)
91. To that end, Article 19(1) of Regulation No 17 provides that the parties should be sent a statement of objections. (32)
92. The Court has held that that document provides an essential procedural safeguard, (33) the requirements of which were laid down at a very early stage in detailed case-law. (34) The statement of objections must set out clearly all the essential factors upon which the Commission is relying at that stage of the procedure. Those factors include, inter alia, the facts alleged against the undertaking, the classification of those facts and the evidence on which the Commission relies, and the factors it will take into consideration when setting the fine, such as the duration of the infringement. In ARBED
v Commission, the Court also held that the statement of objections must specify unequivocally the legal person on whom fines may be imposed.
93. However, that information may be given summarily and the decision is not necessarily required to be a replica of the statement of objections. According to the Court, the statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature. (35) The Commission must take into account the factors emerging from the administrative procedure, either in order to abandon such objections as have been shown to be unfounded or in order to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains, provided however that it relies only on facts on which those concerned have had an opportunity to make known their views and provided that, in the course of the administrative procedure, it has made available the evidence necessary for the defence.
94. According to the case-law of the Court of First Instance referred to in paragraph 68 of the judgment under appeal, an infringement of the rights of the defence during the administrative procedure must be examined in the light of the objections established by the Commission in the statement of objections and in the decision.
95. Those procedural safeguards were laid down in Article 19(1) of Regulation No 17 and in Articles 2 and 4 of Regulation No 99/63 (36) and were later codified in Article 27 of Regulation No 1/2003 and Articles 10 to 12 and 15 of Regulation No 773/2004.
96. It is in the light of those considerations that the merits of the plea put forward by Bolloré should now be examined.
b) Examination of the plea put forward by Bolloré
97. As stated above, the Court of First Instance found there had been an infringement of Bolloré’s rights of defence in so far as the statement of objections had not enabled Bolloré to acquaint itself with the objection based on its personal and direct involvement in the infringement, or even with the facts relied on by the Commission in the contested decision in support of that objection.
98. None the less, the Court of First Instance held that the irregularity committed by the Commission was not sufficient to justify annulment of the contested decision since it did not have a decisive effect on the operative part of that decision.
99. The Court of First Instance held, in paragraph 81 of the judgment under appeal, that ‘[a]ccording to settled case-law, in so far as certain grounds of a decision in themselves provide a sufficient legal basis for that decision, any errors in other grounds of the decision have no effect in any event on its operative part’. (37)
100. In paragraph 150 of the judgment under appeal, the Court of First Instance therefore ‘ruled out’ (38) the objection concerning Bolloré’s own liability for the infringement and, after considering all the pleas put forward by Bolloré, dismissed its action for annulment.
101. I consider that the Court of First Instance erred in law in applying that case-law in this case.
102. It is true that the pleas in respect of which Bolloré was heard are in themselves sufficient to justify its censure, since it must answer for the conduct of its subsidiary.
103. The operative part of the contested decision remains unchanged for two reasons. First, the Commission considered that Bolloré, being the parent company of the group, should be held liable for the infringement committed by its subsidiary. It is therefore liable, as such, for the infringement of Article 81 EC, and the wording of Article 1 of the contested decision remains in effect the same. Secondly, the amount of the fine given in Article 3 of that decision has not been changed either – however surprising that may seem – because of the Commission’s method of calculation. In fact, the fine imposed on the undertakings concerned was calculated on the basis of the turnover from the sale of carbonless paper in the EEA. In Bolloré’s case, it was only the subsidiary that had such turnover. Consequently, if we consider that Bolloré must only be held liable for the activities of its subsidiary, the amount of the fine remains the same as that shown in the operative part of the contested decision.
104. None the less, it appears to me that the case-law referred to by the Court of First Instance in paragraph 81 of the judgment under appeal cannot be applied in the present case. I consider that in a case such at that at issue, the Court of First Instance could not merely dismiss the objection based on the personal and direct involvement of Bolloré in the cartel and draw no other conclusion as to the lawfulness of the contested decision, for the following reasons:
– first, because that would amount to disregard for the fundamental nature of the principle of observance of the rights of the defence;
– secondly, because the case-law of the Court on this subject is well established;
– thirdly, because the Court of First Instance’s analysis fails to have regard to the consequences deriving from a Commission decision censuring an undertaking for an infringement under Article 81(1) EC, and,
– fourthly, because the procedure concerned is quasi-criminal in nature and may fall within the provisions of Article 6(1) of the ECHR.
105. I shall now expand on each of those arguments.
106. First, in the judgment under appeal the Court of First Instance appears to misconstrue the nature of the right in question by giving precedence to the effectiveness of the Commission’s action and public policy in the field of competition.
107. In fact, the Commission has infringed not merely a procedural rule but the right of an undertaking to defend itself against being implicated in the commission of an infringement. The principle of observance of the rights of the defence, since it is a fundamental principle of the Community legal system, is an essential procedural requirement. Consequently, infringement of that principle should, in my view, be penalised as such by the Community judicature under Article 230 EC and should entail annulment of the measure in question, in whole or in part.
108. Secondly, where the Court finds there has been an infringement of the rights of the defence of undertakings on account, in particular, of inconsistency between the statement of objections and the decision, the Court adopts a very protective position in respect of the rights of undertakings and a firm stance with regard to the Commission, by annulling the decision or that part of the decision relating to the facts or objections on which the parties have been unable to submit their observations.
109. In this respect it gives a traditional application of Article 230 EC, under which the Court may annul any acts of the Commission adopted in breach of essential procedural requirements. The Court also applies Article 4 of Regulation No 99/63 and Article 11(2) of Regulation No 773/2004, under which the Commission in its decisions must deal only with those objections raised against undertakings and associations of undertakings in respect of which they have been afforded the opportunity of making known their views.
110.
The Court will partly annul a decision where the contested factors, notwithstanding the importance of their subject matter, are capable of being severed from the other provisions. (39)
111. Such factors may be of purely secondary importance in relation to the infringement alleged in the final decision, for example, where it was found that the Commission failed to send undertakings certain documents which had enabled it to assess their conduct with regard to Article 81 EC. In that case, the Court held that such a breach could not affect the validity of the whole of the decision but that instead it was appropriate to disregard the contents of those documents when considering the substantive validity of the decision. (40)
112. They may also be essential factors concerning the alleged infringement, such as its duration or identification of the undertakings responsible.
113. Thus, in Musique Diffusion française and Others
v Commission
the Commission had failed to indicate to the applicants its intention to censure them, under Article 1 of the decision at issue, for committing an infringement of a longer duration than was mentioned in the statement of objections. The Court declared that decision void ‘to the extent to which it [found] that the concerted practices [had] exceeded the period late January/early February 1976’, that is to say, the period in respect of which the undertakings had not had an opportunity to make known their views. (41)
114. In two other cases cited above, Compagnie maritime belge transports and Others
v Commission
and ARBED
v Commission, the statement of objections was ambiguous as to the legal persons on whom the fines might be imposed for an infringement of Article 81(1) EC.
115. In the first case, the statement of objections merely identified a collective body, a liner conference, as the perpetrator of the infringement. However, in its decision the Commission imposed an individual fine on certain members of that conference. In an action brought before it for annulment of that decision, the Court of First Instance rejected the plea put forward by those members alleging infringement of their procedural rights on the ground, in particular, that they had been apprised of the statement of objections and had themselves replied to the Commission’s objections. (42)
116. The Court of Justice held that the Court of First Instance had erred in law with the result that the judgment should be set aside. It held that the statement of objections addressed to the liner conference did not make its members sufficiently aware that they would be ordered to pay fines individually if the infringement was made out. In its final judgment, the Court therefore annulled the provisions of the decision imposing individual fines on the members of that conference. (43)
117. In the second case, the statement of objections did not mention the Commission’s intention to impute to the parent company, ARBED SA, liability for the conduct of its subsidiary and therefore to order it to pay a fine calculated on the basis of its own turnover. (44) The Court of First Instance, although it noted the infringement of the company’s rights of defence, did not penalise that procedural irregularity on the ground that throughout the administrative procedure there had been some uncertainty as to the respective roles and liability of the parent company and its subsidiary.
118. In the appeal brought by ARBED SA, the Court of Justice set aside the judgment of the Court of First Instance. Although the company was aware of the statement of objections addressed to its subsidiary and of the procedure which had been initiated against that subsidiary, the Court held that it could not be concluded from that fact that that company’s rights of defence had not been infringed. It stated that ‘[a]mbiguity as to the legal person on whom the fines would be imposed, which could have been dispelled only by properly addressing a fresh statement of objections to the appellant, persisted up to the end of the administrative procedure’. (45) Therefore, in its final judgment the Court annulled the decision at issue ‘in so far as it concern[ed] ARBED SA’.
119. It is correct that in those cases the grounds that were flawed had a direct effect on the operative part of the decision at issue. In Musique Diffusion française and Others
v Commission, Article 1 of the decision was flawed in so far as it related to the period on which the undertakings had not had an opportunity to make known their views. In Case C‑395/96 P Compagnie maritime belge transports and Others
v Commission, Article 6 of the decision was flawed in so far as it imposed an individual fine on some of the undertakings which had not been properly informed. Lastly, in ARBED
v Commission, Article 4 of the decision at issue was flawed because it ordered the parent company, ARBED SA, to pay the fine.
120. None the less, I consider that, over and above the effect which the flawed ground might have on the operative part of the decision at issue, the Court has attached greater importance to whether the contested grounds are essential or subsidiary. In those cases, each of the flawed grounds was an essential factor in the infringement complained of.
121. The same applies in this case as regards identification of the undertakings liable. The contested objection concerns Bolloré’s personal and direct involvement in commission of the infringement. It refers to that undertaking as the perpetrator of the infringement complained of. If such an objection is to be ruled out since that undertaking has not had an opportunity to defend itself, it is right that the full conclusion should be drawn from this with regard to the lawfulness of the contested decision based on such factors.
122. Thirdly, in finding that infringement of Bolloré’s rights of defence is not likely to affect the validity of the contested decision in so far as it concerns that undertaking, the Court of First Instance, in my view, failed to have regard to the consequences of a Commission decision establishing an infringement under Article 81(1) EC.
123. I consider, on the one hand, that Bolloré has a moral interest in having the contested decision annulled in so far as it implicates that undertaking directly and personally in the commission of the infringement.
124. On the other hand, annulment of the contested decision, since it is based on a flawed ground, is needed for reasons of clarity and legal certainty, in particular as regards the civil law consequences of infringement of Article 81 EC.
125. Where the Commission establishes an infringement of Article 81 EC, a victim of that infringement may bring an action for damages before the national courts against the perpetrators of the anti‑competitive practice at issue, seeking compensation for loss suffered. (46) The persons who can benefit from that protection are not only third parties, that is to say, consumers and competitors who are damaged by the anti-competitive agreement but also, in exceptional circumstances, a party to that agreement. (47)
126. In that regard, the Commission decision, as upheld or invalidated by the Community judicature, forms the basis for their proceedings. It is thus essential, in particular in the case of a complex, collective and continuous infringement, that that decision should state very clearly the liability of the various undertakings in committing the infringement. If that decision results in the undertakings in question incurring civil liability, it is only because they have been found to have participated in the collective conduct that has been collectively penalised and correctly defined. That constitutes an essential preliminary for the proper institution of a damages action, which the Commission advocates strongly in its white paper on damages actions for breach of the EC antitrust rules. (48)
127. In the present case, taking these factors into account, it seems to me that the Court of First Instance should not therefore merely reject the objection in question, without ‘expurgating’ from the contested decision the factors on which the Commission based Bolloré’s own liability. The rejection of an objection is by no means equivalent to its annulment by the Community judicature and so the Court of First Instance has not removed it from the legal order, whereas it is deemed never to have existed if it is annulled. Such reasoning does not give the procedure in question for establishing an infringement the nece ssary clarity as regards the role and liability incumbent on Bolloré, which, under that procedure, is likely to be held liable for committing that infringement.
128. Fourthly, I consider that judicial review must be all the stricter because the infringement of the rights of the defence is committed by the Commission in quasi-criminal proceedings which may fall within the provisions of Article 6(1) of the ECHR.
129. That provision reads: ‘[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal established by law’. (49)
130.
According to its settled case-law, the European Court of Human Rights does not require all courts involved in both types of judicial proceedings to observe all the requirements of Article 6 of the ECHR. Thus, where a decision is taken by an administrative authority which does not provide all the safeguards of judicial proceedings, that decision must then be open to subsequent review by a judicial body having unlimited jurisdiction, in accordance with the requirements of Article 6(1) of the ECHR. (50)
131. Application of Article 6 of the ECHR to a proceeding pursuant to Article 81 EC has raised a number of questions, in particular since the Commission cannot be classed as a ‘tribunal’ (51) within the meaning of that provision and the proceeding does not, strictly speaking, constitute criminal proceedings.
132. It appears none the less that the fines referred to in Article 15 of Regulation No 17 can, by their nature and size, be likened to a criminal penalty (although strictly speaking they are an administrative penalty) and in view of the Commission’s investigation, inquiry and decision-making functions, a proceeding pursuant to Article 81 EC is quasi‑criminal in nature. The Court moreover expressly noted the special nature of such a proceeding in Hüls
v Commission, (52) and did not hesitate on that occasion to refer to the presumption of innocence resulting from Article 6(2) of the ECHR. In that case, the Court observed that ‘given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments’. (53)
133. It seems to me perfectly possible to transpose that case-law to the present case and so a proceeding pursuant to Article 81 EC must also comply with the requirements laid down in Article 6(1) of the ECHR. It is not clear however how compliance with the principle of the presumption of innocence can accommodate infringement of the rights of the defence.
134. That means that, in quasi-criminal proceedings like the proceeding at issue, in which the Commission performs investigation, inquiry and decision-making functions, the Community judicature must conduct a very detailed judicial review to ascertain whether the Commission has observed the procedural rights of the parties. In other words, I consider that it should draw all the necessary conclusions where the Commission, in exercising its prerogatives, fails to observe the fundamental rights afforded to undertakings in a proceeding pursuant to Article 81 EC.
135. In the present case, the approach taken by the Court of First Instance seeks to restrict the review which, in my view, the judicature should exercise over Commission decisions, for the purposes of Article 6(1) of the ECHR. That approach may, in my view, prove dangerous. In a case such as that at issue, to hold that infringement by the Commission of an undertaking’s right to be heard does not vitiate the decision since the undertaking must in any event be held liable for the infringement committed by a third party amounts to saying that the Commission may infringe essential procedural requirements with impunity.
136. In the light of all those factors, I consider that the Court of First Instance erred in law in its assessment of the infringement of Bolloré’s rights of defence, by failing to annul any of the provisions of the contested decision implicating that undertaking directly and personally in the commission of the infringement. In my view, the Court of First Instance should have drawn the necessary conclusions, namely, that the contested decision should be annulled in so far as it was based on the objection alleging Bolloré’s personal and direct involvement in the infringement.
137. I therefore propose that the Court should declare Bolloré’s first plea in law well-founded.
138. As a final comment, I should like merely to state that it is clear that where a statement of objections is vitiated by such a significant omission the Commission can only remedy the matter by adopting a supplementary statement of objections allowing the parties to examine it and express their views during the prior administrative procedure.
B – Second plea put forward by Divipa: the duration of the proceedings before the Court of First Instance was excessive
1. Arguments of the parties
139. Divipa observes that the the right to legal process within a reasonable period applies in competition matters to administrative procedures and judicial proceedings, and refers in that regard to Baustahlgewebe
v Commission . That right was infringed because the proceedings before the Court of First Instance lasted five years from the time the appeal was lodged until the time the judgment under appeal was delivered.
140. The Commission submits that, in view of the particular circumstances of the case, the duration of the proceedings was not excessive. In any event, it points out that a procedural irregularity such as the one complained of, were it to be established, would not result in the judgment under appeal being set aside in its entirety.
2. Assessment
141. As stated above, the general principle of Community law that everyone is entitled to a fair legal process and, in particular, the right to legal process within a reasonable period, is applicable in a judicial action brought against a Commission decision censuring an undertaking for infringement of Article 81 EC.
142. In order to assess whether proceedings have been disposed of within a reasonable period the Court has referred to the criteria laid down by the European Court of Human Rights in the context of the application of Article 6(1) of the ECHR. It thus held in Baustahlgewebe
v Commission
that the reasonableness of the period must be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities. (54)
143. The Court has held in that regard that the list of criteria is not exhaustive and that the assessment of the reasonableness of the period in question does not require a systematic examination of the circumstances of the case in the light of each of them where the duration of the proceedings appears justified in the light of one of them. Thus the Court held that the complexity of the case may be deemed to justify a duration which is prima facie too long. (55)
144. In the present case the proceedings before the Court of First Instance began on 18 April 2002, the date on which Divipa lodged its application for annulment of the contested decision, and ended on 26 April 2007, the date on which the judgment under appeal was delivered. The proceedings before the Court of First Instance therefore lasted approximately five years.
145. Although that period may appear long, it seems to me to be justified in view of the particular complexity of the case.
146. Virtually all the facts forming the basis of the contested decision were disputed at first instance and therefore had to be verified. The probative value of the statements and the documents available concerning, in particular, the various meetings that took place on the national and European markets had to be evaluated. Also, as is clear from paragraphs 40 to 63 and 109 to 117 of the judgment under appeal, the Court of First Instance had to hear various issues relating to access to documents in the administrative procedure and determine whether they could be used. Moreover, the measures of inquiry ordered by the Court of First Instance in connection with the preparation of that procedure and, in particular, the various written questions put to the parties required prior analysis of the documents in the case or at least of some parts of them.
147. I would also point out that nine undertakings brought actions for annulment against the contested decision, in four different languages. The judgment under appeal was delivered on the same day as the eight other judgments in the actions brought against that decision.
148. In the light of those findings I consider that the duration of the proceedings culminating in the judgment under appeal may be explained, in particular, by the number of undertakings that participated in the impugned cartel and brought actions against the contested decision, which necessitated a parallel examination of those different actions, by the thorough investigation of the case carried out by the Court of First Instance and by the language constraints imposed by the latter’s Rules of Procedure.
149. It follows that the duration of the proceedings before the Court of First Instance is justified in the light of the particular complexity of the case.
150. I therefore propose that the Court should reject as unfounded Divipa’s plea alleging infringement of the right to have proceedings disposed of within a reasonable period.
IX – Pleas alleging infringement of Article 81(1) EC in that the Court of First Instance distorted the evidence concerning participation by the appellants in the infringement and the duration of that infringement
151. In essence, the appellants complain that the Court of First Instance distorted the evidence on which it based its assessment, under Article 81 EC, of their participation in the infringement and the duration of that infringement.
152. Before considering the admissibility and the merits of those pleas, I should like briefly to recall the case-law of the Court of Justice relating to the taking of evidence of infringement of Article 81 EC.
153. According to the Community judicature, the Commission must adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. (56) The Commission must therefore produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place. None the less, the Community judicature does not require every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, satisfies them. (57) In addition, as the Court of First Instance observed in paragraph 155 of the judgment under appeal, the evidence of participation in a cartel must be assessed in its entirety, taking into account all relevant circumstances of fact.
154. The taking of evidence in competition cases involves particular problems which the Court summarised in Aalborg Portland and Others
v Commission . The activities which anti-competitive practices involve take place in a clandestine fashion, meetings are held in secret, most frequently in a non-member country, and the associated documentation is sparse and reduced to a minimum. Also, in most cases, the existence of an anti-competitive practice must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. (58)
155. It is necessary to add to this the limitations to which the Commission is subject when it exercises its powers of investigation. I refer to those resulting from the right of undertakings not to give evidence against themselves (59) or those resulting from the fact that the Commission cannot, under Regulation No 17, question individuals in order to obtain information relevant to the investigation.
156. Consequently, in a proceeding pursuant to Article 81 EC, written documents play a central role in the taking of evidence, however difficult it may be in practice to gather them.
157. In the present case, Koehler, Bolloré and Divipa challenge the probative value of certain facts and documents that led the Court of First Instance to establish that they attended collusive meetings on the national markets and on the European market and assess the period of time during which they did so.
158. According to the principles I set out in points 56 to 58 above, I reject as inadmissible Divipa’s arguments seeking merely to obtain from the Court a new assessment of the facts. I shall, however, examine the appellants’ arguments asserting in essence that the Court of First Instance distorted the facts.
159. In order to do so, I would point out that the appellants must state precisely the items that were allegedly distorted by the Court of First Instance and demonstrate the errors of analysis, in its assessment, which led the Court of First Instance to that distortion. According to settled case-law, such distortion must be obvious from the documents before the Court, without its being necessary to undertake a fresh assessment of the facts and evidence or seek new evidence.
160. It is therefore necessary to take such evidence into account in my assessment, in particular, the special difficulties involved in the taking of evidence in a proceeding pursuant to Article 81 EC.
A – First plea: infringement of Article 81(1) EC in so far as the Court of First Instance is alleged to have distorted the evidence with regard to Divipa’s participation in the infringement
161. In its appeal, Divipa complains that the Court of First Instance distorted the clear sense of the evidence submitted to it when it asserted, first, that Divipa attended the meeting on 5 March 1992, secondly, that it attended the meeting on 19 October 1994 and, thirdly, that it participated in the cartel on the European market. It refers in particular to paragraphs 156 to 171, 192 to 197, 205 to 207 and 216 of the judgment under appeal.
1. First part of the plea: distortion of the evidence with regard to Divipa’s attendance at the meeting on 5 March 1992
a) Arguments of the parties
162. Divipa maintains, in particular, that the Court of First Instance distorted the note from the Sappi employee, dated 9 March 1992, on the ground that it failed to take into account or cite in the judgment under appeal a part of that note which stated that it was through customers and not directly that Sappi learnt about Divipa’s prices. In its view, it is not logical that an undertaking which had allegedly attended a cartel meeting at which the issue of prices was discussed did not itself supply its prices directly at that meeting.
163. The Commission rejects that argument on the ground in particular that any document must be examined in conjunction with the other items in the case-file. It also points out that Divipa casts no doubt on the probative value of the statements made by AWA and Sappi, nor their interpretation by the Court of First Instance.
b) Assessment
164. I consider that Divipa’s criticisms of the assessment made by the Court of First Instance are unfounded.
165. Divipa fails to demonstrate in what way the Court of First Instance distorted the note from the Sappi employee by omitting to state that the details on prices supplied by that employee came from information supplied by customers. I do not see how that omission can be interpreted as an error of assessment on the part of the Court of First Instance regarding Divipa’s attendance at the meeting on 5 March 1992. Divipa does not however dispute the probative value of that note.
166. In any event, Divipa was able to acquaint itself with, and have an opinion on the content of, that note, since, as is clear from paragraph 162 of the judgment under appeal, Sappi’s statements were attached to the statement of objections and were sent to the Court of First Instance, so that Divipa had access to them.
167. I therefore propose that the Court should reject the first part of the plea as unfounded.
2. Second part of the plea: distortion of the evidence concerning Divipa’s attendance at the meeting on 19 October 1994
a) Arguments of the parties
168. Divipa argues that Mougeot’s statements, which the Court of First Instance used in order to justify Divipa’s alleged attendance at the meeting on 19 October 1994, were given after the material events and for the purpose of application of the Leniency Notice.
169. The Court of First Instance allegedly distorted the evidence by relying mainly on its case-law in order to assert that Divipa attended that meeting, which is a manifest infringement of the principle of fair legal process and a flagrant error in the appraisal of the facts.
170. The Commission rejects that argument.
b) Assessment
171. I consider that Divipa’s arguments concerning Mougeot’s statements should also be rejected.
172. The fact that those statements were given after the material events and for the purpose of application of the Leniency Notice was expressly noted by the Court of First Instance in paragraph 166 of the judgment under appeal. That Court cannot therefore be criticised for not taking them into account. As the Court of First Instance observed, those statements cannot however be devoid of probative value since, as they run counter to the interests of the declarant, they must in principle be regarded as particularly reliable evidence.
173. In addition, the Court of First Instance found, in paragraph 168 of the judgment under appeal, that Mougeot’s statements support those of Sappi and AWA on a number of points. AWA, in its reply to the statement of objections, supplied a list of meetings concerning the Spanish market, which included the meeting on 19 October 1994.
174. In any event, as the Commission observes, the Court of First Instance cannot be criticised for interpreting Mougeot’s statements incorrectly.
175. Consequently, it seems to me that the second part of the plea should also be rejected as unfounded.
3. Third part of the plea: distortion of the evidence relating to Divipa’s participation in the cartel on the European market
a) Arguments of the parties
176. Divipa maintains that the Court of First Instance distorted or omitted certain evidence. It stresses that it is not a producer, that it only sold on the national market, that it was the only non-producer company criticised for allegedly attending certain meetings on the national market which does not belong to any distribution network, in Spain, of major European carbonless paper producers. There is no document indicating that there was any mention, at the meetings which it is deemed to have attended, of the existence of a plan for wider collusion.
177. The Commission also rejects that argument. It observes, in particular, that Divipa does not specify the points in the Court of First Instance’s arguments where there was any distortion of the facts.
b) Assessment
178. The Court should, in my view, hold those arguments inadmissible.
179. As regards, first of all, the argument alleging distortion of ‘certain evidence’, I find on reading the appeal that Divipa fails to identify the evidence which it alleges was distorted by the Court of First Instance.
180. As regards, secondly, the argument alleging that the Court of First Instance failed to take into account certain evidence concerning its status as a producer, it is a matter solely for the Court of First Instance to assess the value that should be attached to evidence submitted to it. In my view, that argument is therefore not admissible. In any event, the argument concerned does not appear to me to be valid in so far as, contrary to what Divipa maintains, the Court of First Instance assessed on a number of occasions in the judgment under appeal, in particular in paragraphs 203, 605 and 628 of that judgment, the value that should be attached to Divipa’s status as a distributor.
181. In those circumstances, I consider that the third part of the plea is inadmissible.
182. In the light of all those considerations, I am of the view that the Court of First Instance did not distort in any way the evidence on which it based its finding that Divipa participated in the agreement at issue and in the measures for implementing that agreement.
183. I therefore propose that the Court should reject the first plea as being in part inadmissible and in part unfounded.
B – Second plea: infringement of Article 81(1) EC in so far as the Court of First Instance distorted the evidence, failed in its duty to state reasons and infringed Koehler’s rights of defence as regards the duration of the infringement it had committed
184. Koehler in essence challenges the assessment of the Court of First Instance concerning its participation in the cartel during the period before September or October 1993. It claims that the Court of First Instance conducted an inadequate examination of the evidence and drew incorrect conclusions from it as regards a system of collusive meetings, on the one hand, within the AEMCP (Association of European Manufacturers of Carbonless Paper), before September and October 1993 (first part of the plea) and, on the other hand, at national or regional level before that time (second part of the plea).
1. First part of the plea: distortion of the evidence as regards Koehler’s attendance at meetings that were held at European level within the AEMCP before September and October 1993
a) Arguments of the parties
185. According to Koehler, the Commission relied on three categories of evidence, namely, Mougeot’s statements, the testimony of the Sappi employee and the evidence of organisation of national or regional cartel meetings.
186. Koehler argues, first of all, that Mougeot’s letter of 14 April 1999 contains no admission of cartel meetings for the period before October 1993. The Court of First Instance states, however, in paragraph 279 of the judgment under appeal, that it has not been established that collusive agreements on prices were entered into from January 1992, therefore before October 1993. The arguments of the Court of First Instance concerning the alleged price agreements within the framework of official AEMCP meetings before October 1993 are inadequate and contain an inconsistency in the reasoning, constituting an error in law. Nor did the Court of First Instance observe the presumption of innocence when it sought to interpret Mougeot’s statements as being an admission of an infringement in respect of the period before October 1993.
187. Koehler also argues that the Sappi employee’s testimony gives no information regarding the period during which the cartel meetings took place. The Court of First Instance was not entitled to conclude that by failing to make any ‘assertions to the contrary’ that employee wished to confirm implicitly that the infringement had begun before September 1993. The Court of First Instance thus distorted the content of the testimony. That infringes the right to a fair hearing contained in Article 6(1) of the ECHR, and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1).
188. Lastly, Koehler submits that no credence can be given to statements by a repentant witness which is also under investigation unless the statements are corroborated by other evidence. In the present case there is no corroborating evidence.
189. According to the Commission, that part of the plea is not admissible since Koehler is in reality seeking a new assessment of the facts.
b) Assessment
190. Koehler’s complaints regarding the relevance of Mougeot’s statements and those of the Sappi employee do not appear to me well‑founded.
191. Koehler seems to overlook the fact that the Court of First Instance based its findings in paragraphs 261 to 310 of the judgment under appeal on a body of evidence concerning the existence of collusive meetings held before September or October 1993. Although, as the Court of First Instance acknowledges in paragraph 262 of the judgment under appeal, Mougeot’s letter of 14 April 1999 in fact constitutes the key element in the Commission’s case on this point, the fact remains that it is necessary to read and understand the statements made in that letter in the light of the other evidence examined by the Court of First Instance and, in particular, the evidence of the Sappi employee and of AWA. Also, as the Court of First Instance held in paragraph 264 of that judgment, the meaning of that letter is particularly clear and its content is not contradicted by any evidence that might cast doubt on the probative value of the document.
192. As regards the testimony given by the Sappi employee, it seems to me that, even if it does not specify the period in which the collusive meetings at issue took place, it enabled the Court of First Instance, in view of all the evidence, to find that those meetings began in February 1993, the date on which that employee was recruited.
193. Lastly, contrary to what Koehler maintains, the fact that it has not been established that the collusive price agreements were concluded from January 1992 onwards gives no grounds for concluding that those agreements were not negotiated before October 1993.
194. In the light of those factors, it seems to me that Koehler’s criticisms do not permit us to conclude that the Court of First Instance manifestly distorted that evidence. There is therefore no need, in my view, to examine the other complaints alleging infringement of the right to a fair hearing.
195. In those circumstances, I propose that the Court should reject the first part of the plea as unfounded.
2. Second part of the plea: distortion of the evidence concerning Koehler’s attendance at collusive meetings on the Spanish market before October 1993
a) Arguments of the parties
196. According to Koehler, the Court of First Instance distorted the evidence that was deemed to establish its attendance at collusive meetings on the Spanish market before October 1993.
197. With regard to the meeting on 17 February 1992 concerning the Spanish market, the Court of First Instance should not have concluded that Koehler attended that meeting since the Sappi employee, in his note of 17 February 1992, refers only to a meeting of ‘interested parties’ without naming those parties. The Court of First Instance does not explain precisely why Koehler was believed to have participated in the agreement.
198. As regards the meeting of 16 July 1992 concerning the Spanish market, Koehler’s attendance at it is not proven, contrary to what the Court of First Instance held, since AWA, in particular, did not expressly acknowledge such attendance.
199. The Commission contends that Koehler is not pleading distortion of the evidence but is seeking to challenge the assessment of the facts by the Court of First Instance. The plea is therefore inadmissible.
b) Assessment
200. I consider Koehler’s first argument concerning its attendance at the meeting on 17 February 1992 to be inadmissible.
201. It seems to me that the analysis by the Court of First Instance in paragraph 321 of the judgment under appeal concluding that the Commission was entitled to conclude that Koehler was among the ‘interested parties’ referred to in the note from the Sappi employee amounts to an assessment of the facts which, as noted above, cannot be reviewed by the Court in an appeal.
202. In any event, even if the Court were to hold that complaint admissible, I consider it to be unfounded. As is clear from paragraphs 169 and 321 of the judgment under appeal, the Court of First Instance interpreted that information in the light of the other information given by the employee in that note. In the note the employee explains to his line manager the situation in which the undertaking is placed due to the uncertainties caused by the conduct of Koehler and Sarriopapel y Celulosa SA (‘Sarrió’). It is in that connection that he states that a ‘meeting of the interested parties’ took place on the same day. Consequently, and in the light of the wording used in the note, I take the view that the Court of First Instance could indeed infer, without manifestly distorting the clear sense of that document, that Koehler attended that meeting. Also, I do not consider that the Court of First Instance was required to provide any more detail concerning the reasons why Koehler was believed to have participated in that agreement.
203. As regards Koehler’s second argument, concerning its attendance at the meeting on 16 July 1992, to my mind it should be rejected as irrelevant.
204. As is clear from paragraph 332 of the judgment under appeal, the Court of First Instance based its assessment with regard to Koehler’s attendance at that meeting, on Mr B.G.’s statements (60) in particular, and it was merely in order to corroborate those statements that the Court of First Instance referred to AWA’s general assertions. Koehler does not, however, challenge the probative value of Mr B.G.’s statements.
205. In the light of all these factors, I propose that the Court should reject the second part of the plea as being in part inadmissible and in part irrelevant.
3. Third part of the plea: lack of evidence and inadequate grounds as regards Koehler’s attendance at meetings in Paris in the spring of 1992 and 1993
a) Arguments of the parties
206. In support of that part of the plea, Koehler takes issue with the findings of the Court of First Instance set out in paragraph 325 et seq. of the judgment under appeal, concerning its attendance at two meetings in the spring of 1992 and 1993 concerning the French market. Koehler contends that there is no evidence that one of its employees travelled to Paris to attend a cartel meeting in the spring of 1993. The arguments of the Court of First Instance in that regard are so imprecise that they do not satisfy the obligation to state reasons. In any event, the Court of First Instance makes no finding that Koehler attended a meeting in the spring of 1992 concerning the French market.
b) Assessment
207. I consider that that part of the plea should be rejected as inoperative. Koehler’s complaints relate to the grounds for the judgment under appeal given purely for the sake of completeness, as is clear from paragraph 320 of that judgment.
4. Fourth part of the plea: infringement of Koehler’s rights of defence owing to the failure to provide a document
a) Arguments of the parties
208. Koehler complains that the Court of First Instance based its assessment on a document, AWA’s reply of 30 April 1999 to the Commission’s request for information, while Koehler itself had not been sent a copy of that document. The Court of First Instance took that document as evidence that Koehler attended a collusive meeting, that is to say, the meeting on 5 March 1992 concerning the Spanish market.
b) Assessment
209. I consider that the fourth part of the plea should be rejected as inadmissible, according to the principles set out in point 56 above.
210. That part of the plea is only verbatim repetition of a plea which Koehler has already put forward before the Court of First Instance (61) and does not identify any error in law.
211. In that connection, it should be noted that in paragraph 59 of the judgment under appeal (62) the Court of First Instance held that Koehler had failed to prove that it had expressly requested the Commission to disclose evidence not contained in the investigation file. It also stated that Koehler had admitted at the hearing that it had not filed a request for access to those documents. The Court of First Instance therefore held that Koehler’s complaint was inadmissible.
212. In the light of all the foregoing, I am therefore of the view that Koehler’s plea should be rejected as in part inoperative, in part inadmissible and in part unfounded.
C – Third plea: infringement of Article 81(1) EC in as much as the Court of First Instance distorted the evidence and rendered the judgment under appeal unlawful as a result of failure to state adequate reasons concerning the duration of the infringement committed by Bolloré
213. In the third plea, Bolloré complains that the Court of First Instance distorted the evidence concerning, first, the existence of a cartel at European level from January 1992 and, secondly, the purpose of the official AEMCP meetings.
1. First part of the plea: distortion of AWA’s statements and inconsistency in the reasoning
a) Arguments of the parties
214. Bolloré relies on four grounds in support of the first part of the plea.
215. First, Bolloré observes that, in its statements, AWA excluded all the official AEMCP meetings from its reply to the Commission’s request for information. There is therefore no reason for the use of the conditional tense in [the French text of] the judgment under appeal. The distortion of AWA’s statements by the Court of First Instance is therefore manifest.
216. Secondly, Bolloré claims that since, as the Court of First Instance itself has held, the appellants should enjoy the benefit of reasonable doubt, it would be surprising if AWA’s statements none the less provided a ‘substantial’ indication of the existence of a cartel at European level from the beginning of 1992.
217. Thirdly, Bolloré claims that the judgment under appeal is vitiated by inconsistency in the reasoning. Although the Court of First Instance stated in paragraph 275 of the judgment under appeal that AWA’s statements did not permit the inference that the AEMCP meeting at issue functioned as a framework for collusion on prices, it none the less held that those statements were a substantial indication of the existence of a cartel at European level from the beginning of 1992.
218. Fourthly, Bolloré complains that the Court of First Instance sought, in paragraph 274 of the judgment under appeal, to combine the national and regional AEMCP meetings with the European AEMCP meetings held between 1992 and 1995, merely by observing that Zurich appeared among the cities AWA listed in its statements.
b) Assessment
219. As regards the first ground, it must clearly be rejected as unfounded, since use of the conditional tense by the Court of First Instance does not convey the latter’s manifestly incorrect assessment of AWA’s statements.
220. As regards the second ground, it should, in my view, be rejected as inadmissible. According to the principles set out in point 57 above, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced before it, unless the appellant pleads that the clear sense of the evidence has been distorted by the Court of First Instance. In the present case, by describing that statement as a ‘substantial indication’, the Court of First Instance merely assessed the value that in its view should be attached to the statements made by AWA, and Bolloré has not demonstrated in what way that assessment is manifestly incorrect.
221. I consider the third ground, alleging inconsistency in the reasoning, is unfounded. Although AWA’s statements were insufficient in themselves to prove the purpose of the AEMCP meeting on 23 January 1992 they could none the less provide an indication. As stated above, the fact that that indication was described as ‘substantial’ by the Court of First Instance is not open to review by the Court of Justice in an appeal.
222. The fourth ground must obviously be rejected as unfounded. It is clear from paragraph 274 of the judgment under appeal that the Court of First Instance by no means ‘combined’ the national meetings with the European meetings by observing that Zurich appeared among the cities listed in Table A of Annex I to the contested decision. The Court of First Instance merely noted that fact, which Bolloré does not challenge in its appeal.
223. In the light of all these considerations, I propose that the Court should reject the first part of the third plea as in part inadmissible and in part unfounded.
2. Second part of the plea: distortion of the evidence concerning the alleged anti-competitive purpose of the official AEMCP meeting on 23 January 1992
a) Arguments of the parties
224. Bolloré puts forward three grounds in support of the second part of the plea.
225. First, Bolloré complains that the Court of First Instance did not indicate in paragraphs 295 and 304 of the judgment under appeal the evidence that enabled it to confirm that agreements to increase prices had been concluded at European level since January 1992.
226. Secondly, Bolloré maintains in particular that the Court of First Instance at no point specifies which undertakings made admissions concerning their participation in a European cartel from January 1992. None of the statements made by Mougeot, Sappi or AWA demonstrate, without distortion, that collusive meetings took place at European level from January 1992 onwards.
227. Thirdly, there is no evidence that Copigraph attended the collusive meetings alleged to have been held in Spain from February 1992 onwards. The Court of First Instance asserts that European AEMCP meetings were combined with national or regional meetings, but does so without substantiating the assertion and by distortion of the evidence.
228. The Commission contends that the plea, in both its first two parts, is inadmissible in that it seeks to challenge the assessment of the facts made by the Court of First Instance.
b) Assessment
229. The first two grounds are in my view unfounded. The alleged omissions affecting the reasoning of the Court of First Instance in paragraphs 295, 304 and 308 of the judgment under appeal can be explained by the fact that the Court of First Instance refers to evidence that it has already set out and described in its assessment of the official AEMCP meetings held before September or October 1993.
230. Thus, the ‘evidence’ on which the Court of First Instance relied in paragraphs 295 and 304 of the judgment under appeal refers to that which it had just set out in paragraphs 261 to 280 of that judgment. Also, the ‘undertakings’ which made admissions and to which the Court of First Instance refers in paragraph 308 of that judgment are, in my view, those mentioned in paragraphs 272 to 279 of the judgment under appeal, in particular, AWA and Sappi.
231. As regards the third ground, I propose that the Court should rule that it is inoperative, since it concerns grounds for the judgment under appeal given purely for the sake of completeness.
232. In those circumstances, I consider that the second part of the third plea should be rejected, in part as inoperative and in part as unfounded.
233. In the light of all these factors I consider that Bolloré’s third plea is in part inoperative and in part unfounded.
X – The pleas alleging infringement of Article 15(2) of Regulation No 17 in so far as the Court of First Instance incorrectly assessed the amount of the fine
234. Subject to the specific aspects of their respective situations, Koehler and Divipa in essence complain that the Court of First Instance incorrectly assessed the amount of the fine imposed on them by the Commission by failing to take any account of the principles of equal treatment and proportionality.
235. In the contested decision, the Commission described the infringement committed by the appellants as very serious. In view of the differences in scale between the undertakings in question, the Commission treated the undertakings differently, classifying them into five categories. The Commission based this classification on their EEA‑wide product turnover and their market shares in the carbonless paper sector. It considered that Koehler, being a medium‑sized business on that market, should be classified in the second category with Mitsubishi HiTech Paper Bielefeld GmbH (‘MHTP’) and Zanders Feinpapiere AG, which became M‑real Zanders GmbH (‘Zanders’). The Commission considered that Divipa should be classified in the fifth category since its sales were mainly in one or a few EEA countries.
236. In paragraphs 486 to 497 and 500 to 522 of the judgment under appeal the Court of First Instance held that the Commission had assessed the amount of the fines imposed on Koehler and Divipa in accordance with the principles of proportionality and equal treatment.
237. In the present appeals, the Court’s analysis is limited to the question whether, by approving the criteria used by the Commission in setting the fines imposed on Koehler and Divipa under Article 3 of the contested decision and by reviewing their application, the Court of First Instance made a manifest error or failed to have regard to the principles of equal treatment and proportionality which govern the imposition of fines.
A – Koehler’s plea alleging infringement of the principle of equal treatment
1. Arguments put forward by Koehler
238. In support of that plea, Koehler compares the fine it received with the fines imposed on Zanders, MHTP and AWA. In essence it complains that the Court of First Instance treated it in the same way as those undertakings by classifying it in the second category, together with Zanders and MHTP, although there were significant structural and financial differences between it and those undertakings.
239. First, it complains that the Court of First Instance held that the fact that it is a family business which does not have access to the capital market, unlike undertakings quoted on the stock exchange, was irrelevant for the purposes of assessing the amount of the fine.
240. Secondly, Koehler contends that the Court of First Instance erred in law by ruling that the Commission was not required to take into account the turnover of the group to which MHTP and Zanders belong, although it did so in its own case.
241. Thirdly, Koehler claims that it is being punished more severely than AWA, although the latter played the part of leader within the cartel and belongs to a group so that it can call on the financial resources of the whole group.
2. Assessment
242. I consider that the complaints made by Koehler are unfounded and that the Court of First Instance correctly assessed the way in which the Commission exercised its discretion in the light of the requirement it is under to comply with the principle of equal treatment.
243. It should be noted that the Commission enjoys a wide discretion as regards the method used for calculating fines. (63) The Guidelines, which set out the Commission’s method of calculation, display flexibility in a number of ways, enabling the Commission to take into account many factors in assessing the gravity of the infringement, within the limits laid down in Article 15 of Regulation No 17. (64)
244. Among those factors, referred to in Section 1 A of the Guidelines, are not only those relating to the nature of the infringement, its impact and its geographic size, but also factors linked to the actual characteristics of the undertakings and the need to provide a deterrent effect. (65)
245. Where an infringement is classified as serious or very serious, and where, in particular, it involves several undertakings, the Guidelines allow the Commission to apply weightings to the basic amount of the fine established according to the gravity of the infringement in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings concerned.
246. Thus, as Section 1 A of the Guidelines states, ‘the principle of equal punishment for the same conduct may, if the circumstances so warrant, lead to different fines being imposed on the undertakings concerned without this differentiation being governed by arithmetic calculation’.
247. Although those Guidelines are not rules of law which the institution is bound to observe, the Court has held that the Commission cannot depart from those rules without being found to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations. (66)
248. As the Court of First Instance observed in paragraph 501 of the judgment under appeal, the principle of equal treatment is infringed where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified.
249. Application of that principle to a proceeding pursuant to Article 81 EC in the context of an infringement involving several undertakings has given rise to a large body of case-law.
250. In this type of proceeding the Commission has considerable discretion in relation to setting the amount of the fine that will be imposed on the undertakings concerned. The Guidelines permit the Commission to take account of a number of factors in the calculation of the fine and thus to fit the penalty to the individual conduct and characteristics of the undertakings concerned in order to ensure that, in each case, the Community competition rules are fully effective. (67)
251. Thus, the Community judicature expressly acknowledges that ‘a certain difference in … treatment’ between the undertakings concerned is inherent in the application of the method chosen by the Guidelines and in the Commission’s exercise of the powers conferred on it under Regulation No 17. (68)
252. In its appeal Koehler contends, in essence, that the Commission’s division of the undertakings into groups infringes the principle of equal treatment since Koehler itself is treated in the same way as undertakings which are in a different situation, such as Zanders or MHTP.
253. Division into groups may indeed infringe the principle of equal treatment since such a method results in a flat-rate starting amount and has the effect of ignoring the differences in size between undertakings in the same group.
254. The Community judicature none the less accepts that method if the assessment of the thresholds for each of the categories identified is coherent and objectively justified. It has held that the Commission is not required to ensure that the final amounts of the fines resulting from its calculations reflect any distinction between the undertakings concerned in terms of their overall turnover or their turnover in the relevant product market. (69)
255. In paragraphs 506 to 513 of the judgment under appeal, the Court of First Instance considered whether the Commission’s classification into categories was in fact coherent and objectively justified.
256. The Court of First Instance pointed out first of all, in paragraphs 506 and 507 of the judgment under appeal, that the Commission based its classification into categories in this case on two criteria, namely the EEA-wide product turnover and the market shares of each of the undertakings. The Court of First Instance held that the use of those criteria was wholly justified as they provided a basis for assessment of the relative importance of the undertakings concerned in the market, which is not disputed in Koehler’s action. Also, after establishing the reliability of the figures which the Commission had used, the Court of First Instance held in paragraph 513 of the judgment under appeal that that system was coherent and did not discriminate against Koehler.
257. That finding appears to me to be perfectly clear and devoid of any errors in law.
258. I consider that Koehler’s first argument is unfounded. The Court of First Instance rejects that argument, concerning the fact that Koehler is a family business, since the criteria which the Commission took into account in order to classify the undertakings into categories were based solely on the turnover relating to carbonless paper and market shares of the undertakings concerned. Those criteria, the soundness of which is not challenged in Koehler’s appeal, do not allow for structural differences between the undertakings concerned to be taken into account. Consequently, even though Koehler is a family business, it could be classified only on the basis of its turnover relating to carbonless paper, which, as the Court of First Instance noted in paragraph 495 of the judgment under appeal, did not permit it to be classified as one of the small undertakings of the sector.
259. I also propose that the Court should reject Koehler’s second argument. It is clear in my view that the Court of First Instance could not require the Commission to take into account for purposes of classifying MHTP and Zanders into categories, the total turnover of the groups to which they belong since, as paragraph 478 of the judgment under appeal states, the Commission did not find sufficient evidence to attribute the infringement committed by those undertakings to those groups.
260. Lastly, I regard the third argument also as groundless. As stated above, the Commission’s classification into categories was done solely on the basis of the relative importance of the undertakings in the market concerned, irrespective of the structural or behavioural differences between them. In those circumstances, the fact that AWA was the principal leader of the cartel and belonged to a group could not be taken into account at that stage. That does not mean, however, that that method led the Commission to set the amount of the fine according to a calculation based solely on the undertakings’ turnover without taking into account the particular individual circumstances of each of the undertakings concerned. As the Court of First Instance noted in paragraph 493 of the judgment under appeal, it was at the stage when the fine was increased for deterrence that the Commission took account of the difference in size and overall resources between Koehler and AWA. Also, as is clear from recitals 418 to 424 of the contested decision, it was at the stage of assessing the existence of aggravating circumstances that the Commission took into account AWA’s role as instigator.
261. In the light of all these factors, I consider that the Court of First Instance was right to hold that the Commission had not infringed the principle of equal treatment in its assessment of the amount of the fine imposed on Koehler.
262. I therefore propose that the Court should reject Koehler’s plea alleging infringement of the principle of equal treatment as unfounded.
B – Divipa and Koehler’s plea alleging infringement of the principle of proportionality
1. Arguments of the parties
263. It is clear from its appeal that Divipa maintains that the fine imposed on it is disproportionate in view of the gravity of the infringement, its participation in that infringement, its financial capacity and its status as a small distributor.
264. First, according to Divipa, the Court of First Instance infringed the principle of proportionality by describing the infringement as very serious, although Divipa did not participate in a European cartel and its participation, which did not cover all the meetings concerning the Spanish market, lasted less than a year.
265. Secondly, Divipa complains that the Court of First Instance did not take into account a factor that distinguishes it from the other undertakings, namely, its status as a distributor.
266. Thirdly, it contends that the Court of First Instance cannot approve the Commission’s failure to assess the economic capacity of the undertaking concerned for purposes of determining the amount of the fine. In its case, the financial consequences resulting from payment of the fine are clear from the information given in the application.
267. Koehler, for its part, complains that the Court of First Instance infringed the principle of proportionality by failing to take into account, in its calculation of the fine, the differences in treatment which Koehler complained of. In that regard, Koehler challenges the assessment made by the Court of First Instance in paragraphs 486 to 497 of the judgment under appeal. It points out that what may be appropriate in the case of an undertaking quoted on the stock market far exceeds what is necessary in order to provide a deterrent for a family business with no direct access to the capital market.
2. Assessment
a) Arguments put forward by Divipa
268. According to settled case-law, the proportionality of a fine must be assessed in the light of all of the circumstances of the infringement and, in particular, the gravity and duration of the infringement, the scale of its anti-competitive effects on the market, the interests of the consumers or competitors injured thereby, and the financial capacity of the undertakings concerned. (70)
269. In support of its appeal, Divipa contends that the fine imposed on it is disproportionate in view of the gravity and duration of the infringement, its participation in that infringement, its financial capacity and its status as a distributor.
270. First, despite the lack of clarity in the judgment under appeal on that point, I consider that Divipa’s first two arguments should be rejected.
271. I have stated that the Court of First Instance rightly held that Divipa did in fact participate in a Europe-wide cartel and attended collusive meetings on the Spanish market during the period March 1992 to January 1995. The Court of First Instance cannot be criticised for infringing the principle of proportionality by wrongly alleging that Divipa participated in a European cartel, which would have resulted in the infringement being described as a very serious infringement instead of a serious infringement. Those factors, together with the classification of the infringement, on which Divipa bases its claim of infringement of the principle of proportionality, cannot be successfully relied upon.
272. Moreover, Divipa’s argument does not take into account the considerations which the Commission took into account when determining the amount of the fine and which led to the imposition of a fine that was proportionally smaller than those imposed on the other undertakings. I refer in that regard to recital 408 of the contested decision, in which the Commission concluded that Divipa should be classified in the fifth category since its sales were only in one or a few EEA countries and in recital 416 of that decision, in which the Commission took into account the duration of Divipa’s participation in the infringement by increasing the fine by 25 %, unlike the other undertakings.
273. Lastly, I do not see how Divipa’s status as a distributor could affect the amount of the fine imposed on it.
274. Second, I think that Divipa’s third argument, alleging failure to take its financial capacity into account, is not admissible. In view of the principles set out in point 55 above, Divipa cannot raise for the first time before the Court an argument which it has not raised before the Court of First Instance.
275. In the light of those factors, I therefore propose that the Court should reject Divipa’s arguments as inadmissible in part and unfounded in part.
b) Arguments put forward by Koehler
276. The arguments put forward by Koehler should in my view also be rejected.
277. Contrary to what Koehler maintains, the Court of First Instance did not ‘disregard’ the structural and financial differences between it and the other undertakings when assessing whether the principle of proportionality had been infringed. Koehler pleaded before the Court of First Instance that the fine imposed on it was disproportionate in relation to its economic power. (71) In that connection, it compares the fines imposed by the Commission as percentages of the total turnovers of the undertakings concerned. (72)
278. In paragraph 494 of the judgment under appeal, the Court of First Instance rightly held that such a comparison was not sufficient to establish the disproportionate nature of Koehler’s fine. According to settled case-law to which the Court of First Instance referred in paragraph 468 of that judgment, the fixing of an appropriate fine cannot be the result of a simple calculation based on undertakings’ overall turnover. As I stated above, the proportionality of a fine must be assessed in the light of all the circumstances of the infringement and, in particular, its gravity and duration, the scale of its anti-competitive effects, the interests of the consumers or competitors injured thereby, and the financial capacity of the undertakings concerned.
279. In any event, the Court of First Instance cannot be criticised for infringing the principle of proportionality when, as it stated in paragraph 495 of the judgment under appeal, Koehler did not adduce any evidence capable of proving that the basic amount of the fine imposed on it was excessive in relation to its specific weight.
280. In those circumstances, I consider that Koehler’s arguments should be rejected as unfounded.
281. In the light of all those considerations I therefore propose that the Court should reject the plea alleging infringement of the principle of proportionality as inadmissible in part and unfounded in part.
XI – Plea alleging failure to state reasons in the judgment under appeal as regards the assessment of attenuating circumstances
282. In the contested decision the Commission did not accept that the undertakings concerned could be granted the benefit of any attenuating circumstances.
283. Divipa argued before the Court of First Instance that the Commission should have accepted that non-implementation in practice of the infringing agreements or practices constituted an attenuating circumstance in its favour. The Court of First Instance rejected that argument on the grounds set out in paragraphs 618 to 626, 628, 629 and 635 of the judgment under appeal.
284. In its appeal Divipa claims that the Court of First Instance infringed its obligation to state reasons.
A – Arguments of the parties
285. Divipa argues that the Court of First Instance infringed its obligation to state reasons by failing to explain one of the factors on which it relied in rejecting its complaint. It means the reference to its ‘benefit’ in the last sentence of paragraph 629 of the judgment under appeal.
286. Divipa cites the following passage:
‘In addition, the mere fact that it may not have complied fully with the agreements entered into – if established – is not sufficient to oblige the Commission to make a finding of attenuating circumstances in its favour. [Divipa] could, through its more or less independent policy on the market, simply be trying to exploit the cartel for its own benefit ’. (73)
B – Assessment
287. Like the Commission, I think that Divipa’s plea has no bearing on the issue. The ground it refers to is only one given for completeness, as the Court of First Instance’s use of the words ‘[i]n addition’ and the use of the conditional tense [in the French text] show.
288. In any event, the first two grounds given by the Court of First Instance, in paragraph 629 of the judgment under appeal, are quite sufficient to answer and reject the argument put forward by Divipa in its appeal.
XII – The consequences of setting aside the judgment under appeal
289. As stated above, I propose that the Court should set aside the judgment under appeal since the Court of First Instance did not annul the contested decision in so far as it was based on evidence implicating Bolloré personally and directly in the commission of the infringement.
290. As I consider that in the present case the state of the proceedings permits judgment to be given, I shall invite the Court, under the first paragraph of Article 61 of the Statute of the Court of Justice, to give final judgment on the plea for annulment raised by Bolloré before the Court of First Instance alleging infringement of its rights of defence.
291. In accordance with the assessment set out in points 81 to 137 of this Opinion, I propose that the Court should annul the contested decision in so far as it is based on evidence implicating Bolloré personally and directly in the commission of the infringement.
XIII – Costs
292. I propose that the Court should make a decision as to costs in accordance with the first paragraph of Article 122 and Article 69(2) and (3) of the Rules of Procedure of the Court of Justice.
293. Koehler and Divipa have failed on all their heads of claim. I therefore propose that the Court should order them to bear their own costs and pay those incurred by the Commission.
294. Bolloré has failed on one head of claim. I therefore propose that the Court should order it to bear its own costs and pay 50% of the costs incurred by the Commission.
XIV – Conclusion
295. In the light of all the foregoing considerations, I therefore propose that the Court should:
(1) Set aside the judgment of the Court of First Instance of the European Communities of 26 April 2007 in Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others
v Commission
to the extent that it is vitiated by an error of law, since the Court of First Instance held that the infringement by the Commission of the European Communities of the rights of defence of Bolloré SA was not such as to entail annulment of Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (in Case COMP/E-1/36.212 – Carbonless paper) so far as the personal and direct involvement of Bolloré SA in the infringement was concerned;
(2) Annul Decision 2004/337/EC in so far as it implicates Bolloré SA directly and personally in the commission of the infringement;
(3) Dismiss the appeals brought in Case C‑322/07 P Papierfabrik August Koehler
v Commission
and Case C‑338/07 P Distribuidora Vizcaína de Papeles
v Commission
in their entirety;
(4) In Case C‑327/07 P, order Bolloré SA to bear its own costs and 50% of the costs incurred by the Commission of the European Communities, and order the latter to bear 50% of its own costs;
(5) In Cases C‑322/07 P and C‑338/07 P, order Papierfabrik August Koehler AG and Distribuidora Vizcaína de Papeles, SL each to pay their own costs and the costs incurred by the Commission of the European Communities.
(1) .
(2)  –	Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 [2007] ECR II‑947 (‘the judgment under appeal’).
(3)  –	Decision of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (in Case COMP/E-1/36.212 — Carbonless paper) (OJ 2004 L 115, p. 1) (‘the contested decision’).
(4)  –	Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87), as amended by Council Regulation (EC) No 1216/1999 of 10 June 1999 (OJ 1999 L 148, p. 5) (‘Regulation No 17’). It should be noted that that regulation has been replaced by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
(5)  –	Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) (‘the Guidelines’).
(6)  –	OJ C 207, p. 4, ‘the Leniency Notice’.
(7)  –	OJ 1994 L 1, p. 3, ‘the EEA Agreement’.
(8)  –	Case C‑7/95 P Deere
v Commission
[1998] ECR I‑3111, paragraph 19, and case‑law cited.
(9)  –	Case C‑167/04 P JCB Service
v Commission
[2006] ECR I‑8935, paragraph 114, and case-law cited.
(10)  –	See, in particular, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others
v Commission
[2004] ECR I‑123, paragraph 51, and case-law cited.
(11)  –	Case C‑229/05 P PKK and KNK
v Council
[2007] ECR I‑439, paragraph 32, and case-law cited.
(12)  –	JCB Service
v Commission, paragraphs 106 and 107, and case-law cited, and Case C‑328/05 P SGL Carbon
v Commission
[2007] ECR I‑3921, paragraph 41, and case-law cited.
(13)  –	See, in particular, JCB Service
v Commission, paragraph 106, and case-law cited, and SGL Carbon
v Commission, paragraph 41, and case-law cited.
(14)  –	See Case C‑185/95 P Baustahlgewebe
v Commission
[1998] ECR I-8417, paragraph 128; Case C‑359/01 P British Sugar
v Commission
[2004] ECR I‑4933, paragraph 47; Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others
v Commission
[2005] ECR I‑5425, paragraph 244, and Case C‑3/06 P Groupe Danone
v Commission
[2007] ECR I‑1331, paragraph 69.
(15)  –	See, in particular, Baustahlgewebe
v Commission, paragraph 129; British Sugar
v Commission, paragraph 48, and Dansk Rørindustri and Others
v Commission, paragraph 245.
(16)  –	See PKK and KNK
v Council, paragraph 35.
(17)  –	See, in particular, JCB Service
v Commission, paragraph 108, and case-law cited, and PKK and KNK v Council, paragraph 37, and case-law cited.
(18)  –	See, in particular, Baustahlgewebe
v Commission, paragraph 19, and case-law cited.
(19)  –	Ibid., paragraph 21, and case-law cited.
(20)  – Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others
v Commission
[2003] ECR II‑3275, paragraph 196. See also, to that effect, Case T‑86/95 Compagnie générale maritime and Others
v Commission
[2002] ECR II‑1011, paragraph 447.
(21)  – See, to that effect, Case T‑352/94 Mo och Domsjö
v Commission
[1998] ECR II‑1989, paragraph 74.
(22)  – See, to that effect, Case T‑126/99 Graphischer Maschinenbau
v Commission
[2002] ECR II‑2427, paragraph 49, and Case T‑209/01 Honeywell
v Commission
[2005] ECR II‑5527, paragraph 49.
(23)  – See also, to that effect, Joined Cases C-302/99 P and C-308/99 P Commission and France
v TF1
[2001] ECR I-5603, paragraphs 26 to 29, and Case T‑87/05 EDP
v Commission
[2005] ECR II-3745, paragraph 144.
(24)  –	In that regard, Bolloré refers to Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others
v Commission
[1993] ECR I‑1307; Joined Cases C‑395/96 P and C‑396/96 P Compagnie maritime belge transports and Others
v Commission
[2000] ECR I‑1365; Case C‑176/99 P ARBED
v Commission
[2003] ECR I‑10687; Joined Cases T‑39/92 and T‑40/92 CB and Europay
v Commission
[1994] ECR II‑49, and Case T‑310/01 Schneider Electric
v Commission
[2002] ECR II‑4071.
(25)  –	Case C‑7/98 Krombach [2000] ECR I‑1935, paragraphs 25 and 26.
(26)  –	See, in particular, Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel
v Commission
[2007] ECR I‑729, paragraph 115, and case-law cited.
(27)  –	Article 6(2) EU embodies that case-law, since according to that provision ‘[t]he Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law’.
(28)  –	The Court has held that the need to ensure observance of the rights of the defence must be respected by the Commission in the performance of its duties and, in particular, in all administrative procedures in which sanctions, in particular fines or penalty payments, may be imposed (see, in particular, Case 85/76 Hoffman‑La Roche
v Commission
[1979] ECR 461, paragraph 9; Case 322/81 Nederlandsche-Industrie-Michelin
[1983] ECR 3461, paragraph 7; Joined Cases 46/87 and 227/88 Hoechst
v Commission
[1989] ECR 2859, paragraph 15; Case 374/87 Orkem
v Commission
[1989] ECR 3283, paragraphs 32 and 33; Krombach, paragraphs 25 and 26, and ARBED
v Commission, paragraph 19).
Those rights must be observed for the duration of the administrative procedure and at the stage of the preliminary inquiry, since the latter may be decisive in providing evidence of the unlawful nature of conduct engaged in by an undertaking (see, in particular, Hoechst
v Commission, paragraph 15, and Orkem
v Commission, paragraph 33).
(29)  –	See, in particular, Groupe Danone
v Commission, paragraph 68, and case-law cited.
(30)  –	See, in that regard, Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (OJ, English Special Edition 1963-1964 p. 47), which was replaced following the adoption of Regulation (EC) No 1/2003 by Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).
(31)  –	See, in particular, Aalborg Portland and Others
v Commission, paragraph 66, and case-law cited.
(32)  –	That provision reads: ‘Before taking decisions as provided for in Articles 2, 3, 6, 7, 8, 15 and 16 [of that regulation], the Commission shall give the undertakings or associations of undertakings concerned the opportunity of being heard on the matters to which the Commission has taken objection’.
(33)  –	Joined Cases 100/80 to 103/80 Musique Diffusion française and Others
v Commission
[1983] ECR 1825, paragraphs 10 and 14.
(34)  –	See, in particular, Musique Diffusion française and Others
v Commission, paragraphs 14 and 15; ARBED
v Commission, paragraphs 20 and 21, and case-law cited, and Aalborg Portland and Others v Commission, paragraphs 142 to 146.
(35)  –	See, to that effect, Joined Cases 142/84 and 156/84 BAT and Reynolds Industries v Commission
[1987] ECR 4487, paragraph 70.
(36)  –	Article 2(1) of that regulation states that ‘[t]he Commission shall inform undertakings and associations of undertakings in writing of the objections raised against them. The communication shall be addressed to each of them or to a joint agent appointed by them’. Article 2(3) of that regulation states that ‘[a] fine or a periodic penalty payment may be imposed on an undertaking or association of undertakings only if the objections were notified in the manner provided for in paragraph 1’. Article 4 of Regulation No 99/63 provides that ‘[t]he Commission shall in its decisions deal only with those objections raised against undertakings and associations of undertakings in respect of which they have been afforded the opportunity of making known their views’.
(37)  –	The Court of First Instance refers to Commission and France
v TF1, paragraphs 26 to 29, and EDP
v Commission, paragraph 144.
(38)  –	Emphasis added.
(39)  –	See, in particular, Case 17/74 Transocean Marine Paint Association
v Commission
[1974] ECR 1063, paragraph 21.
(40)  –	Musique Diffusion française and Others
v Commission, paragraph 30. See also Case 107/82 AEG-Telefunken
v Commission
[1983] ECR 3151, paragraph 30.
(41)  –	Paragraphs 15 and 16.
(42)  –	Joined Cases T‑24/93 to T‑26/93 and T‑28/93 Compagnie maritime belge transports and Others
v Commission
[1996] ECR II‑1201, paragraph 35.
(43)  –	Case C-395/96 P Compagnie maritime belge transports and Others
v Commission, paragraphs 141 to 150.
(44)  –	Case T‑137/94 ARBED
v Commission
[1999] ECR II‑303.
(45)  –	Case C‑176/99 P ARBED
v Commission, paragraphs 22 to 25.
(46)  –	Case C‑453/99 Courage and Crehan
[2001] ECR I‑6297, paragraphs 24 to 28, and Joined Cases C‑295/04 to C‑298/04 Manfredi and Others
[2006] ECR I‑6619, paragraphs 39, 58 to 61, and case-law cited. In those judgments, the Court observed that Article 81(1) EC, and Article 82 EC, produce direct effects in relations between individuals and create rights for the individuals concerned which the national courts must safeguard. According to the Court, that includes the right for individuals to be protected against the damaging effects that a cartel that is automatically void may have produced.
(47)  –	Those situations are, in my view, fairly rare and concern only the case of vertical agreements, in which the lead undertaking adopts unilateral policies such as the distribution of a circular in which a minimum resale price has been set by the supplier.
(48)  –	COM(2008) 165 final. That white paper followed the green paper on damages actions for breach of the EC antitrust rules (COM(2005) 672 final) and a resolution of the European Parliament of 25 April 2007 on that green paper.
(49)  –	Emphasis added.
(50)  –	See Eur Court HR, Grecu v. Romania, judgment of 28 February 2007, § 62, and case-law cited. Those principles derive from Eur. Court HR, König v. Germany
judgment of 28 June 1978, Series A no 27; Le Compte, Van Leuven and De Meyere
judgment of 18 October 1982, Series A no 54, and Albert and Le Compte v. Belgium
of 24 October 1983, Series A no 68. This applies particularly in criminal matters, since the requirements of Article 6 of the ECHR are less onerous as regards cases concerning civil rights than they are as regards criminal charges.
(51)  –	Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission [1980] ECR 3125. In that judgment the Court held that ‘the Commission is bound to respect the procedural guarantees provided for by Community law …; it cannot, however, be classed as a tribunal within the meaning of Article 6 of the [ECHR]’.
(52)  –	Case C‑199/92 P [1999] ECR I‑4287.
(53)  –	Paragraph 150. The European Court of Human Rights adopts three criteria for determining whether a charge is a criminal charge, namely, the classification given by the domestic law of the State concerned, the criminal and deterrent nature of the penalty and the seriousness of the penalty incurred (see Eur. Court H.R., Engel and Others v. The Netherlands
judgment of 23 November 1976, Series A no 22). More specifically, the Court followed this reasoning with regard to administrative penalties, including penalties imposed by national competition authorities (see Eur. Court H.R., Société Stenuit v. France, judgment of 27 February 1992, Series A no 232‑A).
(54)  –	Paragraph 29. See also Sumitomo Metal Industries and Nippon Steel
v Commission, paragraph 116, and case-law cited, and Joined Cases C‑120/06 P and C‑121/06 P FIAMM et FIAMM Technologies v Council and Commission
[2008] ECR I-0000, paragraph 212, and case-law cited.
(55)  –	See Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission
[2002] ECR I‑8375, paragraph 188; Case C‑194/99 P Thyssen Stahl
v Commission
[2003] ECR I‑10821, paragraph 156, and Sumitomo Metal Industries and Nippon Steel
v Commission, paragraphs 117 to 122.
(56)  –	See Baustahlgewebe
v Commission, paragraph 58, and Case C‑49/92 P Commission
v Anic Partecipazioni
[1999] ECR I‑4125, paragraph 86.
(57)  –	See Limburgse Vinyl Maatschappj and Others
v Commission, paragraphs 513 to 523, and Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others
v Commission
[2004] ECR II‑2501, paragraphs 179 and 180, and case-law cited.
(58)  –	Paragraphs 55 to 57.
(59)  –	See Orkem
v Commission .
(60)
–	It is clear from paragraph 181 of the judgment under appeal that Mr B.G., who worked for Unipapel, was Sappi’s agent in Portugal.
(61)  –	Paragraphs 83 to 89 of Koehler’s application.
(62)  –	That point is considered in the context of the second plea, alleging infringement of the right of access to the file as a result of failure to disclose documents not contained in the investigation file sent on CD‑ROM.
(63)  –	Case C‑308/04 P SGL Carbon
v Commission
[2006] ECR I‑5977, paragraph 46, and case-law cited.
(64)  –	Ibid.
(65)  –	The Commission may base its decision on the numerous factors which the Court itself has identified in its case-law. It may assess the gravity of the infringement in the light of the particular circumstances of the case and the legislative background and economic context of the conduct to which exception is taken. When examining the nature of the restrictions on competition, the Commission may take into account the content, duration, number of incidents and their intensity, and geographical extent of the agreement and the value of the goods concerned. It may also take into consideration the number and relative size of the parties to the agreement on the market by examining, in particular, their market share, their size and the part they played in drawing up the agreement. The Commission may also examine the market situation at the time the infringement was committed and take into account the damage to the economic public order. Lastly, it may take into account the threat which the agreement in question poses to the objectives of the Community (see Case 41/69 ACF Chemiefarma
v Commission
[1970] ECR 661, paragraph 176; Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others
v Commission
[1975] ECR 1663, paragraph 612; Case C‑219/95 P Ferriere Nord
v Commission
[1997] ECR I‑4411, paragraph 38, and Aalborg Portland and Others
v Commission, paragraphs 90 and 91 and case-law cited, and Dansk Rørindustri and Others
v Commission, paragraphs 241 and 242, and case-law cited).
(66)  –	JCB Service
v Commission, paragraphs 207 and 208, and case-law cited.
(67)  –	Case T‑43/02 Jungbunzlauer
v Commission
[2006] ECR II‑3435, paragraph 238.
(68)  –	Ibid.
(69)  –	See Case T‑23/99 LR AF 1998
v Commission
[2002] ECR II‑1705, paragraph 278.
(70)  –	See, in particular, Case T‑83/91 Tetra Pak
v Commission
[1994] ECR II‑755, paragraph 240, and case-law cited, and Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others
v Commission
[1999] ECR II‑931, paragraph 1215.
(71)  –	See paragraph 48 of its application.
(72)  –	See tables in paragraphs 56 and 57 of its application.
(73)  – Emphasis added.