61998CC0286_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. By application lodged on 27 July 1998 Stora Kopparbergs Bergslags AB (Stora) appealed against the judgment of the Court of First Instance of 14 May 1998 in Stora Kopparbergs Bergslags v Commission (the contested judgment) seeking to have that judgment set aside.
2. The contested judgment was delivered following an action brought by the appellant contesting Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833) (hereinafter the decision) in which the Commission imposed fines on 19 manufacturers supplying cartonboard on the Community market on the ground that they had infringed Article 85(1) of the EC Treaty (now Article 81(1) EC). A fine of ECU 11 250 000 had been imposed on Stora. The Court of First Instance neither annulled nor reduced the fine.
3. In its appeal the appellant claims that the Court of Justice should:
(1) set aside the judgment of the Court of First Instance of 14 May 1998 in Case T-354/94 Stora Kopparbergs Bergslags AB v Commission in so far as it dismisses the application to annul the Commission decision of 13 July 1994 (IV/C/33.833 - Cartonboard);
(2) annul the above decision in so far as it concerns the appellant;
(3) in the alternative, annul or at least reduce the amount of the fine imposed on the appellant;
(4) order the Commission to pay the costs.
4. The Commission contends that the Court should:
(1) reject the appeal as inadmissible in part and in any event as unfounded;
(2) alternatively, refer the case back to the Court of First Instance for reassessment of the fine in the exercise of its unlimited jurisdiction;
(3) in any event, order the appellant to pay the costs of the appeal.
5. In support of its appeal, the appellant submits three pleas alleging:
- infringement of Article 85 of the Treaty, Article 15(2) of Regulation No 17/62 First Regulation implementing Articles 85 and 86 of the Treaty, and general principles of Community law;
- lack of reasoning for the calculation of the fine;
- an error of law in that the Court of First Instance held that the assessment of the gravity of the infringement could not be affected by the absence of the alleged effects on prices.
The first plea: infringement of Article 85 of the Treaty, Article 15(2) of Regulation No 17 and general principles of Community law
6. The appellant considers that the Court of First Instance erred in law in that it:
- held that the infringements of Article 85 of the Treaty committed by its subsidiary Kopparfors AB (Kopparfors) had to be imputed to the appellant, without having taken into account the Commission's failure to establish whether the appellant had actually exercised any influence on Kopparfors' commercial policy (paragraph 80 of the contested judgment);
- held that the infringements committed by Feldmühle and Papeteries Béghin-Corbehem (CBC) prior to and after their acquisition by the appellant had to be imputed to it on the ground that it could not have been unaware of their participation in the infringement and had failed to adopt appropriate measures in order to prevent the continuation of the infringement (paragraph 83 of the contested judgment).
7. The appellant's first plea is therefore divided into two parts, the first relating to the imputation to Stora of the conduct of its subsidiary Kopparfors and the second relating to the imputation to it of the conduct of Feldmühle and CBC.
The imputation to Stora of Kopparfors' conduct
8. Stora's challenge in the first part of the plea is directed at paragraph 80 of the contested judgment, which states as follows:
In the present case, since the applicant has not disputed that it was in a position to exert a decisive influence on Kopparfors' commercial policy, it is, according to the case-law of the Court of Justice, unnecessary to establish whether it actually exercised that power. Since Kopparfors has been a wholly-owned subsidiary of the applicant since 1 January 1987, it has necessarily followed a policy laid down by the bodies which determine the parent company's policy under its statutes (see AEG v Commission). In any event, the applicant has not submitted any evidence to support its assertion that Kopparfors carried on its business on the cartonboard market as an autonomous legal entity which determined its commercial policy largely on its own and had its own board of directors with external representatives.
9. The appellant construes that paragraph as containing two arguments: one main argument, based on the fact that Kopparfors is a wholly-owned subsidiary of Stora, and a secondary argument, based on Stora's failure to produce evidence of its claim that Kopparfors carried on its activities as a separate legal entity. It considers both arguments to be incorrect.
10. As to the first, it puts forward a line of argument which seeks to prove that neither the judgment in AEG v Commission, cited above, on which the Court of First Instance relies, nor the other judgments of the Court of Justice which have dealt with the question of groups of companies, can be regarded as definitively holding that where a parent company owns all the shares in a subsidiary the parent company must automatically be liable for the subsidiary's conduct.
11. Stora asserts, first, that the Court of First Instance misinterprets the judgment in AEG v Commission, cited above. It states that under paragraph 50 of that judgment, which the Court of First Instance set out almost word for word, the automatic imputation of a wholly-owned subsidiary's infringement to the parent company is conditional on the two companies' being under the same management.
12. If they are not under the same management, the infringement can be imputed to the parent company only if it is proved that the parent company, through the means conferred on it by its 100% shareholding, in fact determines its subsidiary's conduct on the market.
13. It submits, second, that an analysis of the case-law of the Court of Justice and of the Court of First Instance shows that attribution to the parent company of the subsidiary's conduct has never been presented as following solely from control of share capital, but has always been coupled with a finding that there was actual exercise of management power; some judgments even expressly state that a finding to that effect is a condition of such an attribution of liability.
14. To support its view of the case-law, Stora relies on the judgments of the Court of Justice in ICI v Commission and BPB Industries and British Gypsum v Commission and of the Court of First Instance in Shell v Commission and Viho v Commission.
15. Lastly, it points out that the Court of Justice, in its judgment in BMW Belgium and Others v Commission, held that the bond of economic dependence existing between a parent company and a subsidiary does not preclude a divergence in conduct or even a divergence of interests between the two companies (paragraph 24).
16. What are we to make of those arguments?
17. Let me state straight away that they do not seem to me to be of equal weight. The first argument, that the Court of First Instance misunderstood the sense of the judgment in AEG v Commission, cited above, seems to me to be difficult to accept. In paragraphs 49 and 50 of that judgment it is stated most precisely that:
49. As the Court has already emphasised, particularly in its judgment of 14 July 1972 International Chemical Industries, Case 48/69 ([1972] ECR 619) "The fact that a subsidiary has separate legal personality is not sufficient to exclude the possibility of imputing its conduct to the parent company ... in particular where the subsidiary, although having separate legal personality, does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company."
50. As AEG has not disputed that it was in a position to exert a decisive influence on the distribution and pricing policy of its subsidiaries, consideration must still be given to the question whether it actually made use of this power. However, such a check appears superfluous in the case of TFR which, as a wholly-owned subsidiary of AEG, necessarily follows a policy laid down by the same bodies as, under its statutes, determine AEG's policy.
18. That explanation of the position is particularly clear: a wholly-owned subsidiary necessarily follows a policy laid down by its parent company, so that the parent may have the subsidiary's conduct imputed to it without the need to show in any way that it gave instructions or guidelines to its subsidiary.
19. It is wholly artificial for Stora to allege that it can be inferred from the words necessarily follows a policy laid down by the same bodies as, under its statutes, determine AEG's policy that the Court of Justice held that a wholly-owned subsidiary's actions could be imputed to the parent company only if, in addition to such control, they also had identical management bodies.
20. In fact, the Court of Justice merely pointed out that the effect of a 100% shareholding in the subsidiary is that the competent organs in the parent company also determine the subsidiary's policy and that this is so irrespective of the identity of the natural persons who make up the bodies governing it.
21. On the other hand, it is necessary to consider very carefully Stora's second argument, namely that, as a general rule, the case-law requires that before a subsidiary's conduct may be imputed to the parent company it must be established that the parent company actually exercised the power to influence the conduct of the subsidiary which its control of the latter's shares conferred on it.
22. Although the judgment in AEG v Commission cannot be made to say something which it does not, it seems to me to be important to consider whether that judgment is fully in keeping with a clear line of case-law or whether, on the other hand, it stands somewhat apart.
23. Prior to the AEG case, the Court of Justice had on various occasions been called upon to rule on how competition law must take account of the parent and subsidiary company relationship between two companies.
24. It first did so in the Dyestuffs cases, in which certain producers established in non-member countries contested the Commission's power to impose fines on them in respect of practices within the common market in which they themselves had not taken part, only their subsidiaries being present on that market.
25. In response to that line of argument, the Court of Justice laid down the principle that the fact that a subsidiary has separate legal personality is not sufficient to exclude the possibility of imputing its conduct to the parent company, but stated immediately thereafter that such may be the case in particular where the subsidiary, although having separate legal personality, does not decide independently upon its own conduct on the market, but carries out, in all material respects, instructions given to it by the parent company.
26. But that principle of imputability does not work in only one direction, that is to say, it does not serve solely to place on the parent company responsibility for an infringement committed by the subsidiary; it also serves to take certain conduct outside the scope of Article 85 of the Treaty because where the subsidiary does not enjoy any real autonomy in determining its course of action on the market, the prohibitions laid down by Article 85(1) may be considered to be inapplicable in the relationship between it and the parent company with which it forms one economic unit.
27. In the case of Imperial Chemical Industries Ltd (ICI) and its subsidiaries operating within the common market, the Court held as follows in attributing to the parent company responsibility for the infringement:
It is well known that at the time the applicant held all or at any rate the majority of the shares in those subsidiaries.
The applicant was able to exercise decisive influence over the policy of the subsidiaries as regards selling prices in the Common Market and in fact used this power upon the occasion of the three price increases in question.
28. The same approach was adopted in the judgment in Europemballage and Continental Can v Commission. The Court of Justice, after recalling that the circumstance that this subsidiary company has its own legal personality does not suffice to exclude the possibility that its conduct might be attributed to the parent company. This is true in those cases particularly where the subsidiary company does not determine its market behaviour autonomously, but in essentials follows directives of the parent company, pointed to the matters which, in that specific case, allowed it to be concluded that the subsidiary had acted on the instructions of its parent company.
29. It is also that criterion of the extent of real independence enjoyed by the subsidiary, used to assess whether or not there is an economic unit, to which the Court refers in its judgments in Centrafarm v Sterling Drug, Bodson and Ahmed Saeed Flugreisen and Silver Line Reisebüro.
30. However, in those cases, as in the case of Viho v Commission, cited above, it was not a question, for the Court, of verifying whether the actions of the subsidiaries could be attributed to the parent company, but of deciding whether there was an agreement or concerted practice between the parent company and its subsidiaries which could fall within the scope of Article 85(1) of the Treaty.
31. Let us consider, by way of example, the judgment in Viho v Commission, the most recent of the cases on which the appellant relies.
32. That case concerned a company marketing office equipment by wholesale, import and export. It had requested Parker Pen Ltd (Parker), the manufacturer of pens and similar articles, to supply it with its products on conditions equivalent to those granted to Parker's subsidiaries and independent distributors. As it had not been able to obtain satisfaction, Viho Europe BV (Viho) lodged a complaint with the Commission under Article 3 of Regulation No 17.
33. The Commission stated that it could not see in what respects the distribution system practised by Parker exceeded the limits of what can normally be regarded as a necessary distribution of tasks within a group of companies.
34. After Viho had brought an action, the Court of First Instance, and then the Court of Justice, found that Article 85(1)(d) of the Treaty could not apply to the relationship between Parker and its subsidiaries because they formed only a single economic entity (paragraph 63 of the judgment in Viho v Commission, cited above) or an economic unit (paragraph 16 of the judgment of the Court of Justice in Viho v Commission ).
35. It is true that in support of that assertion the Court of Justice noted that Parker owned the entire share capital of its subsidiaries and that the subsidiaries did not enjoy any real autonomy in determining their course of action on the market but applied the instructions given to them by the parent company which controlled them (paragraph 16 of the judgment in Viho v Commission, cited above).
36. However, they were findings of fact of such a nature as to show that there could be no question of an agreement or concerted practice between Parker and its subsidiaries.
37. It does not follow from the above that, in all cases, equally tight links are a necessary condition for holding a parent company liable for its subsidiary's conduct. The same observation must be made in regard to the judgments in Centrafarm v Sterling Drug, Bodson and Ahmed Saeed Flugreisen and Silver Line Reisebüro, cited above.
38. Ought one nevertheless to take the view that before the subsidiary's infringement may be imputed to the parent company it is always necessary to prove in each case that the parent company in fact exercised the power to influence its subsidiary which a 100% or majority shareholding confers on the parent company?
39. In the judgments in ICI v Commission, Europemballage and Continental Can v Commission and BPB Industries and British Gypsum v Commission, cited above, it was possible to find that the parent company had in fact issued instructions to its subsidiary. The Court of Justice obviously had to refer to that important fact in founding its line of reasoning. Moreover, as Advocate General Léger stated in his Opinion in the BPB Industries and British Gypsum case (which the Court of Justice simply adopted in its judgment), in a case of that kind it is irrelevant to examine whether a parent company's power to influence its wholly-owned subsidiary must be presumed, so that the passage in the Court of First Instance's judgment, in which the attribution to the parent company is justified by applying the judgment in AEG v Commission (paragraph 29), must be regarded as superfluous.
40. But can one conclude, a contrario, from those judgments that, failing evidence that instructions were issued by the parent company to its subsidiary, it is not possible to attribute to the parent company infringements committed by its subsidiary? I consider that this would go too far and that evidence of such instructions cannot be demanded. Having said that, I am, however, of the opinion that a mere 100% shareholding does not in itself suffice as a ground for the parent company's liability.
41. I think that it is necessary to carry out a two-stage approach, as Advocate General Darmon did in his Opinion in Orkem v Commission.
42. After he had noted that the Court of Justice had held in the judgment in BMW Belgium and Others v Commission, cited above, that the bond of economic dependency existing between a parent company and a subsidiary company did not preclude a divergence in conduct or even a divergence in interests between the two companies, Advocate General Darmon continued as follows: This, it seems to me, clearly indicates that the legal status of a wholly owned subsidiary does not of itself justify a presumption of unity of conduct in a market or disregard of the legal identity of each undertaking from the procedural standpoint. In principle it is only when the Commission has established such unity of conduct that it can take account of it (paragraph 19).
43. But, he also added straightaway:
However, it also seems to me that, in view of the attitude taken by the two undertakings which evinces, with some consistency, a degree of interchangeability as regards procedural documents emanating from the Commission, neither of those two undertakings is entitled, with a belated display of concern for strict adherence to formal requirements, to rely on a separate legal identity which it had previously made singular efforts to blur (paragraph 20).
44. That line of reasoning was in essence endorsed by the Court of Justice in paragraph 6 of its judgment.
45. Although the facts are not the same in the case before us, there is still a two-stage reasoning. The Court of First Instance did not confine itself to stating that a wholly-owned subsidiary necessarily follows its parent company's policy. It adds in any event, Stora has not submitted any evidence to support its assertion that its subsidiary carried on its business on the cartonboard market as an autonomous legal entity which determined its commercial policy largely on its own and had its own board of directors with external representatives.
46. Did the Court of First Instance thereby wish to state that the burden of proving its subsidiary's independent conduct was on Stora? The applicant interprets that passage in this sense, and if that were the case, I could not agree with the Court of First Instance.
47. However, as is apparent from paragraph 72 of the contested judgment, it is Stora itself which first made those assertions. The Court of First Instance therefore merely finds that those assertions have not been proved. Nevertheless, in expressing that finding at that place in its reasoning (that is to say, in paragraph 80 of the contested judgment) it implicitly accepts that a 100% shareholding does not definitively decide the issue.
48. At this stage, I suggest that the Court of Justice should find that although the Commission has the burden of proving that the parent company in fact exercised decisive influence over its subsidiary's conduct, that burden is eased in the case of 100% control. Something more than the extent of the shareholding must be shown, but it may be in the form of indicia.
49. When a parent company owns all the shares in another company, it can be assumed that it is much more probable that it will exercise tight control over the subsidiary in regard to strategic decisions on pricing, salaries and major investments than that the parent company is not interested in such matters and that the subsidiary enjoys complete autonomy.
50. Furthermore, where a company producing a particular raw material purchases other companies which transform that material, it does so in particular in order to benefit from the added value which results from the transformation of that material. It will therefore necessarily be interested in the prices at which those transformed products are sold, and that must cause it to become aware of the concerted price increase practices existing in that sector.
51. Even though, in the present case, Stora did not instruct Kopparfors to participate in the cartel, since Kopparfors was already participating in it before it was acquired, and even though it did not formally approve Kopparfors' participation in the price increases which then followed, the Court of First Instance was entitled to conclude that Stora was informed of those matters and that it did not object to them, as Kopparfors continued to participate in the actions in question.
52. As to the additional indicia that are necessary, due weight must be given to the findings made by the Court of First Instance regarding the attitude adopted by Stora during the administrative procedure and after service of the statement of objections, and the conclusions which it drew from those findings.
53. In paragraph 48 of the contested judgment, the Court of First Instance held that:
In view of the circumstances set out in paragraphs 43 to 47 above the Commission was nevertheless entitled to infer from the applicant's stance that the applicant considered itself to be the correct addressee of the future decision and that it would not put this point in issue before the Court of First Instance.
54. In paragraphs 50 and 51 the Court of First Instance went on to state as follows:
Although an undertaking's express or implicit acknowledgement of matters of fact or of law during the administrative procedure before the Commission may constitute evidence for this Court when determining whether an action brought before it is well founded, such an acknowledgement cannot restrict the actual exercise of the right to bring proceedings under the fourth paragraph of Article 173 of the Treaty. In the absence of a specific legal basis, such a restriction would be contrary to the fundamental principles of the rule of law and of respect for the rights of the defence.
In the present case, Stora's conduct in the administrative procedure before the Commission and, in particular, the content of the statements addressed to the Commission are evidence which the Court will take into account when considering the merits of the application.
55. Even if the Court accepts as admissible an argument which had not been put in issue after the statement of objections, it cannot be required to refrain from drawing any conclusions at all from conduct which consisted in replying to certain points appearing in a statement of objections but not to the central points in that statement, on which all the rest depended, that is to say, in the present case, the question whether or not its subsidiaries' conduct could be imputed to Stora. (It should be recalled that Stora as such did not participate in the bodies of the cartel.)
56. In my opinion, the Court of First Instance was therefore entitled to conclude in paragraph 85 of its judgment that the applicant's conduct during the administrative procedure, in which it presented itself as being, as regards companies in the Stora Group, the Commission's sole interlocutor concerning the infringement in question (see, by analogy, Case 374/87 Orkem v Commission) supported the other arguments from which it was clear, in its view, that the Commission had been entitled to impute to Stora the conduct of its subsidiaries.
57. Lastly, it should be pointed out that one assertion made by Stora in order to exculpate itself may also be interpreted against it. This is set out in paragraph 72 of the contested judgment:
Kopparfors continued to operate on the cartonboard market as an autonomous legal entity and determined its business policy largely on its own, it having been the only group company active in the cartonboard sector at the material time. Moreover, it had its own board of directors with outside representatives.
58. It follows from the first of those assertions that Kopparfors did not determine its commercial policy wholly independently and therefore, necessarily, that Stora did in fact exercise some power of control over it. Similarly, the fact that Kopparfors' board of directors included outside representatives indicates that it also included managers or employees of the parent company.
59. In my opinion, all those indicia constitute the minimum proof to which I have referred above, which must be required in order to hold a parent company responsible for the conduct of its wholly-owned subsidiary.
60. Even if the Court of First Instance wrongly held that in the case of a wholly-owned subsidiary there was no need to ascertain whether the parent company had in fact exercised the power, the existence of which Stora did not dispute, to exercise decisive influence over the subsidiary's commercial policy, it nevertheless referred to sufficient evidence indicating that that had in fact been the case.
61. According to the case-law of the Court of Justice, even if the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but the operative part appears well founded on other legal grounds, the appeal must be dismissed.
62. The Court of First Instance therefore rightly concluded that the appellant was responsible for Kopparfors' conduct in respect of the period after its acquisition of that undertaking.
The imputation to Stora of the conduct of Feldmühle and CBC in respect of the period after their acquisition
63. The same considerations apply as regards the imputation to Stora of the conduct of its subsidiaries Feldmühle and CBC from the time when it obtained control over them.
64. As the Court of First Instance noted, in essence, in paragraphs 81 and 82 of the contested judgment, it was not disputed that at the date when the appellant acquired 75% of shares in the German Feldmühle-Nobel Group (FeNo), to which Feldmühle and CBC belonged, the latter companies were participating in an infringement in which Kopparfors was also participating. As Kopparfors' conduct had to be imputed to Stora, the Commission rightly took the view that the appellant could not have been unaware of the anti-competitive conduct of Feldmühle and CBC.
65. I am convinced by that finding of the Court of First Instance. Through Kopparfors, Stora knew how price increases operated in the cartonboard sector. When acquiring FeNo and through it, Feldmühle and CBC, Stora knew for a fact that those companies had been participating in the same cartel. It must also have known that a director of Feldmühle had, for a number of years, been the kingpin of the cartel. As the Court of First Instance points out (paragraph 84 of the contested judgment), the appellant has not even argued that it attempted to bring the infringement in question to an end, by for example simply making a request to that effect to the Feldmühle management board.
66. Furthermore, one is entitled to assume that, after having acquired several companies that were active in the same field, Stora pursued through them a group strategy which encompassed questions of pricing.
67. I therefore propose that the Court should find that the Court of First Instance did not err in law in confirming the imputation to Stora of the infringements committed by Feldmühle and CBC after the acquisition of those companies.
The imputation of responsibility in respect of the period prior to the acquisition of the subsidiaries
68. I must still examine whether the Court of First Instance was correct in concluding that Stora should also be regarded as responsible for the conduct of its three subsidiaries in respect of the period prior to their acquisition.
69. It is apparent from table 8 in the decision that:
- Kopparfors was acquired by Stora with effect from 1 January 1987;
- FeNo, including CBC, was acquired by Stora between April and December 1990.
70. In paragraph 81 of the contested judgment the Court of First Instance states that in April 1990 the applicant concluded contracts for the acquisition of approximately 75% of shares in the FeNo Group, which included Feldmühle, although the actual transfer of those shares took place only in September 1990. Lastly, the applicant itself has stated that it acquired the shares of small shareholders at the end of 1990, so that it held 97.84% of shares in FeNo.
71. It is therefore possible to conclude that with effect from September 1990 Stora exercised decisive control over FeNo.
72. It remains to be established whether Stora may also be held responsible for the conduct of its three subsidiaries during the period prior to their acquisition.
73. I have already stated above that if a parent company is to bear responsibility for the conduct of a subsidiary, it must have been possible for it to have exercised decisive influence over the subsidiary's commercial policy and that, except where that subsidiary is wholly-owned, there must be sufficiently cogent evidence that it in fact exercised that power.
74. Obviously that cannot be so in the case of a period during which the future parent company had neither shares in its future subsidiary nor power of some kind to direct its course of conduct.
75. Of course, if the subsidiary was then merged into the parent company, the parent company would have taken on its assets and liabilities, including its liabilities for infringements of Community law. However, Kopparfors, Feldmühle and CBC continued to exist as independent companies after their acquisition by Stora.
76. Consequently, the only argument which could justify imputing to Stora the infringements committed by Feldmühle and CBC is the fact that Stora could not have been unaware that they were taking part in the cartel, because it had itself been participating in it from January 1987, through its Kopparfors subsidiary, and that it must be deemed to have endorsed those anti-competitive acts in so far as, being undoubtedly aware of them, it did nothing to force its new subsidiaries to put an end to them.
77. That is the argument on which the Commission relies and which the Court of First Instance implicitly endorsed, since it does not expressly state why it holds Stora responsible for the actions of Feldmühle and CBC over the period prior to their acquisition by it.
78. The line of reasoning is simple: Stora knew what it was acquiring and in taking no action to put an end to the infringement, despite being aware of it, Stora placed itself in a situation in which it had itself to answer for the infringement committed by its new subsidiaries.
79. I could, possibly, accept such reasoning if Stora itself had participated in the bodies directing the cartel.
80. However, since it has already been necessary to resort to lengthy reasoning in order to find it responsible on account of its shareholding in its wholly-owned subsidiary Kopparfors, I cannot conceive that the mere fact that it could not have been unaware that Feldmühle and CBC had also participated in the cartel can suffice to impute to it responsibility for the infringements committed by those companies prior to their acquisition.
81. I am thus compelled to conclude that the Court of First Instance erred in law in finding in paragraph 83 of the contested judgment that the Commission was entitled to attribute to the appellant the conduct of Kopparfors, Feldmühle and CBC in respect of the period prior to their acquisition by the appellant. I therefore propose that the Court of Justice should set aside the contested judgment on that point.
82. We are, however, faced with an additional problem owing to the fact that the Commission took the view that, having regard to the participation of Feldmühle and CBC in the meetings of the Presidents Working Group (PWG), Stora was one of the ringleaders of the cartel and as such had to bear special responsibility (see point 170 of the decision and paragraph 19 of the contested judgment).
83. As Stora assumed control of those two undertakings only in September 1990, and the cartel was terminated in April 1991, it is not possible to impose on it a fine calculated by applying to its 1990 turnover the 9% rate reserved for the ringleaders (even though the amount obtained by applying that rate was then reduced by two thirds on account of the appellant's cooperation).
84. Since all those aspects must be taken into account in the calculation of the fine which should ultimately be imposed on Stora, the proceedings do not permit final judgment to be given and the case must be referred back to the Court of First Instance.
The second plea: defective reasoning as to the calculation of the fine
85. In my Opinion in Case C-283/98 P Mo och Domsjö AB v Commission, I have explained why this plea, submitted by several applicants, must be rejected.
The third plea: error of law as to the effect on the gravity of the infringement of the lack of evidence of the alleged effects of the price collusion
86. This plea has also been examined in my opinion in Mo och Domsjö AB, in which I have proposed that the Court should reject it.
Costs
87. Under Article 121 of the Rules of Procedure of the Court of First Instance, that Court is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice.
Conclusion
88. In the light of the foregoing arguments, I propose that the Court of Justice should:
(1) set aside the judgment of the Court of First Instance of 14 May 1998 in Case T-354/94 Stora Kopparbergs Bergslags AB v Commission, in so far as it:
- attributes to Stora Kopparbergs Bergslags AB responsibility for the infringements committed by Kopparfors AB prior to 1 January 1987 and by Feldmühle and Papeteries Béghin-Corbehem prior to September 1990;
- confirms that Stora Kopparbergs Bergslags AB was a ringleader;
- dismisses the appellant's application for a reduction in the fine;
- orders the appellant to pay the costs;
(2) dismiss the remainder of the appeal;
(3) refer the case back to the Court of First Instance.