Judgment of the Court of First Instance (First Chamber) of 10 March 1992. - Solvay & Cie SA v Commission of the European Communities. - Competition - Concept of agreement and concerted practice - Collective responsibility. - Case T-12/89.



European Court reports 1992 Page II-00907



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1. Competition - Administrative procedure - Commission decision finding that an infringement has been committed - Evidence which may be used

(EEC Treaty, Art. 85(1))

2. Competition - Administrative procedure - Hearings - Provisional nature of the minutes submitted to the Advisory Committee and to the Commission - Procedural defect - None

(Commission Regulation No 99/63)

3. Competition - Cartels - Agreements between undertakings - Meaning - Common purpose as to conduct to be adopted on the market

(EEC Treaty, Art. 85(1))

4. Competition - Cartels - Prohibition - Agreements continuing to produce their effects after they have formally ceased to be in force - Application of Article 85 of the Treaty

(EEC Treaty, Art. 85(1))

5. Competition - Cartels - Concerted practice - Meaning - Coordination and cooperation incompatible with the requirement for each undertaking to determine independently its conduct on the market - Meetings between competitors having as their purpose the exchange of information decisive for the participants' marketing strategy

(EEC Treaty, Art. 85(1))

6. Competition - Cartels - Complex infringement involving elements of agreements and elements of concerted practices - A single characterization as "an agreement and a concerted practice" - Whether permissible - Consequences as regards the proof to be adduced

(EEC Treaty, Art. 85(1))

7. Competition - Administrative procedure - Single decision concerning a series of unlawful acts which are not uniformly attributable to all the undertakings to which the decision is addressed - Whether permissible - Condition - Each undertaking must be able to identify the objections maintained in its regard

(EEC Treaty, Art. 85(1))

8. Acts of the institutions - Reasons - Duty to state them - Scope - Decision implementing the competition rules

(EEC Treaty, Art. 190)

9. Competition - Fines - Amount - Determination - Criteria - Gravity of the infringement - Assessment factors - Raising of the general level of fines - Whether permissible - Conditions

(Regulation No 17 of the Council, Art. 15(2) )

10. Acts of the institutions - Presumption of validity - Challenge - Conditions

Summary

1. In a decision addressed to an undertaking pursuant to Article 85(1) of the Treaty there may be used against it as evidence only documents from which it appeared, at the time when the statement of objections was issued and from the mention made of them in the statement or its annexes, that the Commission intended to rely upon them so that the undertaking was thus able to comment on their probative value at the appropriate time.

2. The provisional nature of the minutes of the hearing submitted to the Advisory Committee on Restrictive Practices and Dominant Positions and to the Commission can only amount to a defect in the administrative procedure capable of vitiating the resulting decision on the grounds of illegality if the document in question is drawn up in such a way as to mislead in a material respect the persons to whom it is addressed.

3. In order for there to be an agreement within the meaning of Article 85(1) of the EEC Treaty it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way. Such is the case where there were common intentions between undertakings to achieve price and sales volume targets.

4. Article 85 of the EEC Treaty is applicable to agreements between undertakings which are no longer in force but which continue to produce their effects after they have formally ceased to be in force.

5. The criteria of coordination and cooperation enabling the concept of concerted practice to be defined must be understood in the light of the concept inherent in the competition provisions of the EEC Treaty according to which each economic operator must determine independently the policy which he intends to adopt on the common market. Although this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect conduct between such operators the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market.

Participation in meetings concerning the fixing of price and sales volume targets during which information is exchanged between competitors about the prices which they intend to charge, their profitability thresholds, the sales volume restrictions they judge to be necessary or their sales figures constitutes a concerted practice since the participant undertakings cannot fail to take account of the information thus disclosed in determining their conduct on the market.

6. Since Article 85(1) of the Treaty lays down no specific category for a complex infringement which is nevertheless a single infringement because it consists of continuous conduct, characterized by a single purpose and involving at one and the same time factual elements to be characterized as "agreements" and elements to be characterized as "concerted practices", such an infringement may be characterized as "an agreement and a concerted practice" and proof that each of those factual elements presents the constituent elements both of an agreement and of a concerted practice is not simultaneously and cumulatively required.

7. There is nothing to prevent the Commission from adopting a single decision in relation to a series of infringements of Article 85 of the Treaty in which the various undertakings to which it is addressed have not participated in the same way, provided that the decision enables each party to which it is addressed to obtain a clear picture of the objections maintained against it.

8. Although under Article 190 of the EEC Treaty the Commission is obliged to state the reasons on which its decisions are based, mentioning the factual and legal elements which provide the legal basis for the measure and the considerations which led it to adopt its decision, it is not required, in the case of a decision applying the competition rules, to discuss all the issues of fact and of law raised by every party during the administrative proceedings.

9. In assessing the gravity of an infringement for the purpose of fixing the amount of the fine the Commission must take into consideration not only the particular circumstances of the case but also the context in which the infringement occurs and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community.

The fact that in the past the Commission has imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy. In particular, it is open to the Commission to raise the level of fines in order to strengthen their deterrent effect when, although infringements of a specific type have been established as being unlawful at the outset of Community competition policy, they are still relatively frequent on account of the profit that some of the undertakings concerned are able to derive from them.

10. Since a measure which has been notified and published must be presumed to be valid, it is for a person who seeks to allege the lack of formal validity or the inexistence of a measure to provide the Court with grounds enabling it to look behind the apparent validity of the measure in question.

Parties

In Case T-12/89,

Solvay et Compagnie SA, a company incorporated under Belgian law, having its registered office at Brussels, represented by L. Simont, Advocate, with a right of audience before the Cour de Cassation of the Kingdom of Belgium, and by P.A. Foriers and B. Dauwe, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Messrs Loesch & Wolter, 8 Rue Zithe,

applicant,

v

Commission of the European Communities, represented by A. McClellan, Principal Legal Adviser, acting as Agent, assisted initially by L. Gyselen, a member of its Legal Service, acting as Agent, and subsequently by N. Coutrelis, of the Paris Bar, with an address for service in Luxembourg at the office of R. Hayder, a representative of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the Commission' s decision of 23 April 1986 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.149-Polypropylene, Official Journal 1986 L 230, p. 1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of: J.L. Cruz Vilaça, President of the Chamber, R. Schintgen, D.A.O. Edward, H. Kirschner and K. Lenaerts, Judges,

Advocate General: B. Vesterdorf,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing held from 10 to 15 December 1990,

after hearing the Opinion of the Advocate General at the sitting on 10 July 1991

gives the following

Judgment

Grounds

Facts and background to the action

1 This case concerns a Commission decision fining fifteen producers of polypropylene for infringing Article 85(1) of the EEC Treaty. The product which is the subject-matter of the contested decision (hereinafter referred to as "the Decision"), polypropylene, is one of the principal bulk thermoplastic polymers. It is sold by the producers to processors for conversion into finished or semi-finished products. The largest producers of polypropylene have a range of more than 100 different grades covering a wide range of end uses. The major basic grades of polypropylene are raffia, homopolymer injection moulding, copolymer injection moulding, high-impact copolymer and film. The undertakings to which the Decision is addressed are all major petrochemical producers.

2 The west European market for polypropylene is supplied almost exclusively from European-based production facilities. Before 1977, that market was supplied by ten producers, namely Montedison (now Montepolimeri SpA), Hoechst AG, Imperial Chemical Industries PLC and Shell International Chemical Company Limited (called "the big four"), which together account for 64% of the market, Enichem Anic SpA in Italy, Rhône-Poulenc SA in France, Alcudia in Spain, Chemische Werke Huels and BASF AG in Germany and the nationalized Austrian producer Chemie Linz AG. Following the expiry of the controlling patents held by Montedison, seven new producers came on stream in western Europe in 1977: Amoco and Hercules Chemicals N.V. in Belgium, ATO Chimie SA and Solvay et Cie SA in France, SIR in Italy, DSM N.V. in the Netherlands and Taqsa in Spain. Saga Petrokjemi AS & Co, a Norwegian producer, came on stream in the middle of 1978, and Petrofina SA in 1980. The arrival of the new producers, with nameplate capacity of some 480 000 tonnes, brought a substantial increase in installed capacity in western Europe which for several years was not matched by the increase in demand in that market. This led to low rates of utilization of production capacity, which, however, rose progressively between 1977 and 1983, increasing from 60% to 90%. According to the Decision, supply and demand were roughly in balance from 1982. However, during most of the period covered by the investigation (1977-1983), the polypropylene market was reported to be characterized by either low profitability or substantial losses, owing in particular to the extent of the fixed costs and to the increase in the cost of the raw material, propylene. According to the Decision (point 8), in 1983 Montepolimeri SpA held 18% of the European polypropylene market, Imperial Chemical Industries PLC, Shell International Chemical Company Limited and Hoechst AG each held 11%, Hercules Chemicals N.V. slightly below 6%, ATO Chimie SA, BASF AG, DSM N.V., Chemische Werke Huels, Chemie Linz AG, Solvay et Cie SA and Saga Petrokjemi AS & Co from 3 to 5% and Petrofina SA about 2%. The Decision states that there was a substantial trade in polypropylene between Member States because each of the then EEC producers supplied the product in most, if not all, Member States.

3 Solvay et Compagnie SA is one of seven new producers which appeared on the market in 1977. Its position on the polypropylene market was that of a medium-sized producer whose market share was between approximately 3.1 and 4%.

4 On 13 and 14 October 1983, Commission officials, acting pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, the first regulation implementing Articles 85 and 86 of the Treaty (Official Journal, English Special Edition 1959-1962, p. 87, hereinafter referred to as "Regulation No 17"), carried out simultaneous investigations at the premises of the following undertakings, producers of polypropylene supplying the Community market:

ATO Chimie SA, now Atochem ("ATO"),

BASF AG ("BASF"),

DSM N.V. ("DSM"),

Hercules Chemicals N.V. ("Hercules"),

Hoechst AG ("Hoechst"),

Chemische Werke Huels ("Huels"),

Imperial Chemical Industries PLC ("ICI"),

Montepolimeri SpA, now Montedipe ("Monte"),

Shell International Chemical Company Limited ("Shell"),

Solvay et Cie SA ("Solvay"),

BP Chimie ("BP").

No investigations were carried out at the premises of Rhône-Poulenc SA ("Rhône-Poulenc") or at the premises of Enichem Anic SpA.

5 Following the investigations, the Commission addressed requests for information under Article 11 of Regulation No 17 (hereinafter referred to as "the request for information"), not only to the undertakings mentioned above but also to the following undertakings:

Amoco,

Chemie Linz AG ("Linz"),

Saga Petrokjemi AS & Co, which is now part of Statoil ("Statoil"),

Petrofina SA ("Petrofina"),

Enichem Anic SpA ("Anic").

Linz, which is an Austrian undertaking, contested the Commission' s jurisdiction and declined to reply to the request for information. In accordance with Article 14(2) of Regulation No 17, the Commission officials then carried out investigations at the premises of Anic and Saga Petrochemicals UK Ltd, the United Kingdom subsidiary of Saga, and of the selling agents of Linz established in the United Kingdom and in the Federal Republic of Germany. No request for information was sent to Rhône-Poulenc.

6 The evidence obtained during the course of those investigations and pursuant to the requests for information led the Commission to form the view that between 1977 and 1983 the producers concerned had, in contravention of Article 85 of the EEC Treaty, by a series of price initiatives, regularly set target prices and developed a system of annual volume control to share out the available market between them according to agreed percentage or tonnage targets. On 30 April 1984, the Commission therefore decided to open the proceedings provided for by Article 3(1) of Regulation No 17 and in May 1984 sent a written statement of objections to the undertakings mentioned above with the exception of Anic and Rhône-Poulenc. All the addressees submitted written answers.

7 On 24 October 1984, the hearing officer appointed by the Commission met the legal advisers of the addressees of the statements of objections in order to agree certain procedural arrangements for the hearing provided for as a part of the administrative procedure, which was to begin on 12 November 1984. At that meeting the Commission announced, as a result of the arguments advanced by the undertakings in their replies to the statement of objections, that it would shortly send them further material complementing the evidence already served on them regarding the implementation of price initiatives. On 31 October 1984, the Commission sent to the legal advisers of the undertakings a bundle of documents consisting of copies of the price instructions given by the producers to their sales offices together with tables summarizing those documents. In order to ensure the protection of business secrets, the sending of that material was made subject to certain conditions; in particular, the documents were not to be made known to the commercial services of the undertakings. The lawyers of a number of undertakings refused to accept those conditions and returned the documentation before the oral hearing.

8 In view of the information supplied in the written replies to the statement of objections, the Commission decided to extend the proceedings to Anic and Rhône-Poulenc. To that end, a statement of objections, similar to the statement of objections addressed to the other fifteen undertakings, was sent to those two undertakings on 25 October 1984.

9 The first session of the oral hearing took place from 12 to 20 November 1984. During that session all the undertakings were heard, with the exception of Shell (which refused to take part in any hearing) and Anic, ICI and Rhône-Poulenc (which considered that they had not had sufficient opportunity to prepare their case).

10 At that session, several undertakings refused to deal with the matters raised in the documentation sent to them on 31 October 1984, asserting that the Commission had completely changed the direction of its case and that at the very least they should have the opportunity to make written observations. Other undertakings claimed that they had had insufficient time to examine the documents in question before the hearing. A joint letter to that effect was sent to the Commission on 28 November 1984 by the lawyers of BASF, DSM, Hercules, Hoechst, ICI, Linz, Monte, Petrofina and Solvay. In a letter of 4 December 1984, Huels associated itself with the view taken in the joint letter.

11 Consequently, on 29 March 1985 the Commission sent to the undertakings a new set of documentation, setting out price instructions given by the undertakings to their sales offices, accompanied by price tables, as well as a summary of the evidence relating to each price initiative for which documents were available. It requested the undertakings to reply both in writing and at further sessions of the oral hearing and stated that it was removing the original restrictions on disclosure to commercial departments.

12 By another letter of the same date the Commission replied to the argument raised by the lawyers that it had not clearly defined the legal nature of the alleged cartel under Article 85(1) and invited the undertakings to submit written and oral observations.

13 A second session of the oral hearing took place from 8 to 11 July 1985 and on 25 July 1985. Anic, ICI and Rhône-Poulenc submitted their observations and the other undertakings (with the exception of Shell) commented on the matters raised in the Commission' s two letters of 29 March 1985.

14 The preliminary draft of the minutes of the oral hearing, together with all other relevant documentation, was given to the Members of the Advisory Committee on Restrictive Practices and Dominant Positions (hereinafter referred to as "the Advisory Committee") on 19 November 1985 and sent to the applicants on 25 November 1985. The Advisory Committee gave its opinion at its 170th meeting on 5 and 6 December 1985.

15 At the end of that procedure, the Commission adopted the contested decision of 23 April 1986, which has the following operative part:

"Article 1

ANIC SpA, ATO Chemie SA (now Atochem), BASF AG, DSM N.V., Hercules Chemicals N.V., Hoechst AG, Chemische Werke Huels (now Huels AG), ICI PLC, Chemische Werke LINZ, Montepolimeri SpA (now Montedipe), Petrofina SA, Rhône-Poulenc SA, Shell International Chemical Co. Ltd, Solvay & Cie and SAGA Petrokjemi AG & Co. (now part of Statoil) have infringed Article 85(1) of the EEC Treaty, by participating:

- in the case of ANIC, from about November 1977 until a date in late 1982 or early 1983,

- in the case of Rhône-Poulenc, from about November 1977 until the end of 1980,

- in the case of Petrofina, from 1980 until at least November 1983,

- in the case of Hoechst, ICI, Montepolimeri and Shell from about mid-1977 until at least November 1983,

- in the case of Hercules, LINZ and SAGA and Solvay from about November 1977 until at least November 1983,

- in the case of ATO, from at least 1978 until at least November 1983,

- in the case of BASF, DSM and Huels, from some time between 1977 and 1979 until at least November 1983,

in an agreement and concerted practice originating in mid-1977 by which the producers supplying polypropylene in the territory of the EEC:

(a) contacted each other and met regularly (from the beginning of 1981, twice each month) in a series of secret meetings so as to discuss and determine their commercial policies;

(b) set 'target' (or minimum) prices from time to time for the sale of the product in each Member State of the EEC;

(c) agreed various measures designed to facilitate the implementation of such target prices, including (principally) temporary restrictions on output, the exchange of detailed information on their deliveries, the holding of local meetings and from late 1982 a system of 'account management' designed to implement price rises to individual customers;

(d) introduced simultaneous price increase implementing the said targets;

(e) shared the market by allocating to each producer an annual sales target or 'quota' (1979, 1980 and for at least part of 1983) or in default of a definitive agreement covering the whole year by requiring producers to limit their sales in each month by reference to some previous period (1981, 1982).

Article 2

The undertakings named in Article 1 shall forthwith bring the said infringement to an end (if they have not already done so) and shall henceforth refrain in relation to their polypropylene operations from any agreement or concerted practice which may have the same or similar object or effect, including any exchange of information of the kind normally covered by business secrecy by which the participants are directly or indirectly informed of the output, deliveries, stock levels, selling prices, costs or investment plans of other individual producers, or by which they might be able to monitor adherence to any express or tacit agreement or to any concerned practice covering prices or market sharing inside the EEC. Any scheme for the exchange of general information to which the producers subscribe (such as Fides) shall be so conducted as to exclude any information from which the behaviour of individual producers can be identified and in particular the undertakings shall refrain from exchanging between themselves any additional information of competitive significance not covered by such a system.

Article 3

The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1:

(i) ANIC SpA, a fine of 750 000 ECU, or Lit 1 103 692 500;

(ii) Atochem, a fine of 1 750 000 ECU, or FF 11 973 325;

(iii) BASF AG, a fine of 2 500 000 ECU, or DM 5 362 225;

(iv) DSM N.V., a fine of 2 750 000 ECU, or Fl 6 657 640;

(v) Hercules Chemicals N.V., a fine of 2 750 000 ECU, or Bfrs 120 569 620;

(vi) Hoechst AG, a fine of 9 000 000 ECU, or DM 19 304 010;

(vii) Huels AG, a fine of 2 750 000 ECU, or DM 5 898 447.50;

(viii) ICI PLC, a fine of 10 000 000 ECU, or 6 447 970;

(ix) Chemische Werke LINZ, a fine of 1 000 000 ECU, or Lit 1 471 590 000;

(x) Montedipe, a fine of 11 000 000 ECU, or Lit 16 187 490 000;

(xi) Petrofina SA, a fine of 600 000 ECU, or Bfrs 26 306 100;

(xii) Rhône-Poulenc SA, a fine of 500 000 ECU, or FF 3 420 950;

(xiii) Shell International Chemical Co. Ltd, a fine of 9 000 000 ECU, or 5 803 173;

(xiv) Solvay & Cie, a fine of 2 500 000 ECU, or Bfrs 109 608 750;

(xv) Statoil Den Norske Stats Oljeselskap AS (now incorporating SAGA Petrokjemi), a fine of 1 000 000 ECU or 644 797.

Article 4

...

Article 5

..."

16 On 8 July 1986, the definitive minutes of the hearings, incorporating the textual corrections, additions and deletions requested by the applicants, were sent to them.

The procedure

17 These are the circumstances in which, by application lodged at the Registry of the Court of Justice on 5 August 1986, the applicant brought this action seeking annulment of the Decision. Thirteen of the fourteen other addressees of the Decision have also brought actions for its annulment (Cases T-1/89 to T-4/89, T-6/89 to T-11/89 and T-13/89 to T-15/89).

18 The written procedure took place entirely before the Court of Justice.

19 By order of 15 November 1989, the Court of Justice referred this case and the thirteen other cases to the Court of First Instance, pursuant to Article 14 of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities (hereinafter referred to as "the Council Decision of 24 October 1988").

20 Pursuant to Article 2(3) of the Council Decision of 24 October 1988, an Advocate General was designated by the President of the Court of First Instance.

21 By letter of 3 May 1990, the Registrar of the Court of First Instance invited the parties to an informal meeting in order to determine the arrangements for the oral procedure. That meeting took place on 28 June 1990.

22 By letter of 9 July 1990, the Registrar of the Court of First Instance requested the parties to submit their observations on the possible joinder of Cases T-1/89 to T-4/89 and T-6/89 to T-15/89 for the purposes of the oral procedure. No party had any objection on this point.

23 By order of 25 September 1990, the Court joined the abovementioned cases for the purposes of the oral procedure, on account of the connection between them, in accordance with Article 43 of the Rules of Procedure, then applicable mutatis mutandis to the procedure before the Court of First Instance by virtue of the third paragraph of Article 11 of the Council Decision of 24 October 1988.

24 By order of 15 November 1990 the Court adjudicated on the requests for confidential treatment lodged by the applicants in Cases T-2/89, T-3/89, T-9/89, T-11/89, T-12/89 and T-13/89 and granted them in part.

25 By letters lodged at the Registry of the Court between 9 October and 29 November 1990, the parties replied to the questions put to them by the Court in a letter sent to them by the Registrar on 19 July 1990.

26 In the light of the answers provided to its questions, on hearing the report of the Judge-Rapporteur and after hearing the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

27 The parties presented oral argument and answered questions from the Court at the hearing which took place from 10 to 15 December 1990.

28 The Advocate General delivered his Opinion at the sitting on 10 July 1991.

Forms of order sought by the parties

29 The Solvay company claims that the Court should:

(i) annul the Commission' s decision of 23 April 1986 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.149 - Polypropylene);

(ii) in the alternative, annul the contested decision in so far as it imposes a fine of ECU 2 500 000;

(iii) in the further alternative, set the fine at a symbolic amount or at the very least reduce the fine in a substantial and equitable manner;

(iv) order the Commission to pay the costs.

The Commission claims that the Court should:

(i) dismiss the application;

(ii) order the applicant to pay the costs.

Substance

30 The Court considers that it is necessary to examine, first, the applicant' s grounds of challenge relating to a breach of the rights of the defence allegedly committed by the Commission in so far as it (1) did not communicate to the applicant documents on which it based the Decision, (2) based a presumption of guilt on the absence of the applicant' s marketing executives from the hearings, (3) did not set out in the statement of objections all the objections which it then maintained in the Decision, and (4) the final minutes of the hearings were not communicated to the members of the Commission or to those of the Advisory Committee; secondly, the grounds of challenge relating to proof of the infringement concerning (1) the findings of fact made by the Commission and (2) the application to those facts of Article 85(1) of the EEC Treaty, whereby it is contended that the Commission (A) did not correctly define the infringement and (B) did not correctly assess the restrictive effect on competition; thirdly, the grounds of challenge relating to the reasoning of the Decision; and fourthly, the grounds of challenge relating to the determination of the fine, which is alleged to be (1) disproportionate to the duration of the alleged infringement and (2) disproportionate to the gravity of the alleged infringement.

The rights of the defence

1. Non-disclosure of documents upon notification of the statement of objections

31 The applicant contends that when the Commission notified it of the statement of objections it did not send it certain documents on which it based the Decision and that the Commission thus made it impossible for it to explain their contents. The documents concerned consist of notes of the meeting of 10 March 1982 and of the meeting of 13 May 1982 made by a Hercules executive (Decision, point 15b), a document of 6 September 1977 allegedly found at the premises of Solvay (Decision, point 16, fifth paragraph), two notes of Shell internal meetings held on 5 July and 12 September 1979 respectively (Decision, points 29 and 31), an internal Solvay document (Decision, point 32), a reminder sent by Solvay to its sales offices of 17 July 1981 (Decision, point 35), an internal ICI note relating to the "firm climate" (Decision, point 46), a Shell document headed "PP W. Europe-Pricing" and "Market quality report" (Decision, point 49), an internal note found at the premises of ATO dated 28 September 1983 (Decision, point 50), the note of the meeting of 10 March 1982 made by an ICI executive (Decision, point 58), an undated ICI note made in preparation for a meeting with Shell scheduled for May 1983 (Decision, point 63, second paragraph) and a working document relating to the first quarter of 1983 found at the premises of Shell (Decision, point 63, third paragraph).

32 It contends that observance of the rights of the defence means that undertakings which are the subject of a proceeding under Article 85(1) of the EEC Treaty should be informed of the objections which the Commission raises against it and of the documents on which the Commission bases its objections, at least when those documents are important documents, as in the present case (judgment of the Court of Justice in Joined Cases 43 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 25).

33 It is futile for the Commission to claim that the documents in question were made available to Solvay during the access-to-file procedure since simply making available voluminous files to parties does not enable them to make their comments effectively if they do not know the conclusions which the Commission intends to draw from those documents.

34 Finally, it contends that this procedural defect cannot be made good before the Court since the Court' s task is to conduct a review of legality which must lead it to annul the Decision once it is vitiated by a breach of the rights of the defence.

35 The Commission states that the applicant is complaining of a possible discrepancy between the final Decision and the statement of objections which was due to the insertion in the Decision of references to documents to complete the arguments of the Commission. According to the case-law of the Court of Justice (judgment in Case 41/69 ACF Chemiefarma N.V. v Commission [1970] ECR 661, paragraphs 91 to 93; judgment in Joined Cases 209 to 215 and 218/78 Heintz Van Landewyck v Commission [1980] ECR 3125, paragraph 68, and order in Joined Cases 142 and 156/84 British American Tobacco Company and Reynolds Industries v Commission [1986] ECR 1899, paragraph 14), the Decision is not necessarily required to be a replica of the notice of complaints and the Commission may either abandon complaints or supplement and amend its arguments both in fact and in law without acting in breach of the rights of the defence. According to the Commission, the documents which appear for the first time in the final Decision are intended to amend or refine the argument developed in the statement of objections and to confirm the content of the documents disclosed.

36 It adds that the ICI note on the "firm climate", which the applicant contends was not disclosed to it, it appended to the main statement of objections (main statement of objections, Appendix 35).

37 The Commission further states that the other documents were all accessible to the undertakings during the access-to-file procedure in June 1984; the Commission was thus going beyond the requirements which the Court had laid down in this matter in its judgment in the VBVB case (judgment in Joined Cases 43 and 63/82, cited above, paragraph 25). Only the ICI note of a meeting of 10 March 1982 was not made accessible owing to an error. However, it contends that this note does not constitute the basis of any new objection made against the undertakings but simply enables a table appended to the main statement of objections to be identified (main statement of objections, Appendix 71).

38 Finally, it points out that the non-disclosure of documents cannot affect the Decision as a whole if it relates only to secondary documents, which is the position in this case (judgment of the Court of Justice in Joined Cases 100 to 103/80 Musique Diffusion Française SA and Others v Commission ("Pioneer") [1983] ECR 1825, paragraph 30).

39 The Court notes that, according to the case-law of the Court of Justice, the important point is not the documents as such but the conclusions which the Commission has drawn from them, and if those documents were not mentioned in the statement of objections, the undertaking concerned was entitled to take the view that they were of no importance for the purposes of the case. By not informing an undertaking that certain documents would be used in the Decision, the Commission prevented it from putting forward at the appropriate time its view of the probative value of such documents. It follows that these documents cannot be regarded as admissible evidence as far as that undertaking is concerned (judgment in Case 107/82 AEG-Telefunken AG v Commission [1983] ECR 3151, paragraph 27, and see most recently the judgment of 3 July 1991 in Case C-62/86 AKZO Chemie v Commission [1991] ECR I-3359, paragraph 21).

40 In this instance, only the documents mentioned in the main or particular statements of objections or in the letter of 29 March 1985, or those appended to them without being specifically mentioned therein, may be treated as admissible evidence as against the applicant in the present case. As far as the documents which are appended to the statements of objections but which are not mentioned therein are concerned, they may be used in the Decision as against the applicant only if the applicant could reasonably deduce from the statements of objections the conclusions which the Commission intended to draw from them.

41 It follows from the foregoing considerations that, of the documents referred to by the applicant, only the internal ICI note on the "firm climate" (Decision, point 46) may be used as evidence against the applicant since that document is mentioned in point 71 of the main statement of objections addressed to the applicant, of which it forms, moreover, Appendix 35. The other documents referred to by the applicant may not be regarded as evidence which may be used against the applicant in the present case.

42 The question whether those last-mentioned documents provide the essential support for the findings of fact made by the Commission against the applicant in the Decision falls to be considered by the Court in its examination of the question whether those findings are well founded.

2. Presumption of guilt based on the absence of marketing executives at the hearings

43 In the reply, the applicant contends that the rights of the defence were infringed by the Commission which, in the defence, pointed out with great emphasis that the undertakings were not represented at the hearings by the managers or marketing executives who participated in the activities in question. Thus, from the way in which the undertakings chose to organize their defence at the hearings, the Commission drew a presumption of guilt. However, undertakings are at liberty to decide whether or not to participate in the hearings and to be assisted or represented at them by the person of their choice. The Commission may not therefore presume from the way in which an undertaking organizes its defence that it is guilty. Moreover, at no time in the administrative procedure did the Commission indicate to the undertakings that it intended to base a presumption of guilt on their choices in this regard. By basing the Decision on this ground, which was not made clear, without allowing Solvay to defend itself, the Commission acted in breach of the rights of the defence.

44 Since this breach did not become apparent until the statement of defence was studied, the objection based on the breach of the rights of the defence is admissible.

45 The Commission contends that this objection is inadmissible and in any event ill-founded. First of all it is a new plea in law which, under Article 42(2) of the Rules of Procedure of the Court of Justice, incorporated in Article 48(2) of the Rules of Procedure of the Court of First Instance, is inadmissible. The applicant cannot contend that this plea is based on matters of fact or of law emerging during the written procedure since it was must have been aware that it was not represented by its marketing executives at the hearings.

46 According to the Commission, this plea is in any event without foundation. The absence from the hearings of the marketing executives of the undertakings was not a matter forming the basis of the Decision and the Commission did not make a "presumption of guilt" based on that circumstance. On the contrary, it based its findings on abundant documentary evidence and confined itself in the defence to stating that the undertakings - which were naturally at liberty to choose their method of defence - had refrained from challenging that documentary evidence with the oral testimony of the persons concerned.

47 The Court considers that this plea is admissible since, although it is true that the applicant was not unaware that its marketing executives had not taken part in the hearings, the fact remains that it was only in the defence that the Commission first referred to this fact in the present proceedings.

48 As regards the substance of the plea, the Court finds that the statements made by the Commission in the defence about the absence of any marketing executives of the applicant and other undertakings at the hearings amount to no more than an observation that the applicant did not use oral testimony in order to challenge the content and significance of the documentary evidence adduced by the Commission. In the first paragraph of point 70, the Decision also took note of this fact, stating that: "While offering various alternative interpretations of the nature and purpose of the meetings, the undertakings have not produced any documentary account of meetings or any oral evidence which might cast doubt on the accuracy of the ICI notes". Consequently, the Commission' s statement of defence merely clarified the reasoning of the Decision.

49 Moreover, it must be observed that at the meeting of 24 October 1984 the hearing officer had invited the applicant to equip itself with the means to enable it to have recourse to such testimony at the hearing.

50 The applicant' s ground of challenge must therefore be dismissed.

3. New objections

51 The applicant complains that during the proceedings the Commission changed its position on the question of the characterization of the infringement and that it finally concluded that the question was immaterial. In the applicant' s view, the evidence to be produced is different in the case of an agreement than in the case of a concerted practice.

52 It points out that in the statement of objections the Commission relied primarily on the existence of agreements and alternatively on the existence of concerted practices. The aim of those agreements and concerted practices was allegedly threefold: the joint setting and application of sale prices, the setting and application of quotas, and the misuse of the Fides data exchange system for the purposes of the exchange of information. At the preparatory meeting prior to the hearings, the Commission changed its position, explaining that it had not meant to argue that the agreed target prices had been applied on the marketplace but that it regarded the issue by the undertakings in question of parallel price instructions to their sales offices as a concerted practice. In its letter of 29 March 1985, the Commission stated that "in substance little turns on the precise form which the alleged collusion took, and ... the producers participated in a prohibited cartel which presents the aspects of both 'agreements' and 'concerted practices' ". According to the applicant, this was the argument which came to be adopted in the Decision. However, in the argument it presented to the Court the Commission went one step further, now basing its argument on a wrong analysis of the case-law and essentially deducing from it that the concept of a concerted practice is associable with the concept of consultation or of making contact consisting, for example, in an exchange of information.

53 The Commission disputes the applicant' s contentions concerning the alleged changes in its position on the objections raised against members of the cartel.

54 It contends that from the time of notification of the statement of objections it had maintained that the producers sought to control the market and that continuous, institutionalized cooperation at a high level replaced the normal operation of competition. Thus, what it was alleging was the existence of an overall agreement under which were implemented multifarious agreements and concerted practices which had an anti-competitive purpose and in which the members of the cartel could participate in different ways and with varying enthusiasm. That position was adopted by the Commission throughout the administrative procedure and was the basis of the Decision. It is that same position which the Commission is defending before the Court in explaining that there was a core agreement concerning a system of regular and institutionalized meetings at which prices and quotas were discussed and that this core agreement was supplemented by specific measures in which the applicant had taken part. Thus, in no event was a breach of the rights of the defence committed.

55 The Court notes that the applicant accepts in the reply (paragraph 22) that the Commission adopted in the Decision the argument which it had set out in its letter of 29 March 1985. Consequently, there can be no question of a new objection being raised in the present case. The purpose of the letter of 29 March 1985 was indeed to supplement the main statement of objections on the question of the legal characterization of the infringement since it states:

"By letter dated 28 November 1984 the legal representatives of a number of the polypropylene producers involved in the present proceedings maintained that in its objections the Commission had not clearly expressed the legal position against which the producers had to defend themselves and had exacerbated the situation by shifting its position during the hearing. As a result (it was argued) the rights of defence were substantially impaired.

I do not accept that argument. The facts were treated in extenso in the objections and the legal issues, although succinctly expressed, were clearly delineated.

... for the avoidance of any doubt, and at the risk of repetition, I will set out the following matters for your consideration" (there then follow eight pages of explanation of which two are devoted to the question of legal characterization)

and the letter ends as follows:

"You may submit your written observations on the matters covered by this letter within six weeks from the date of receipt. A further oral hearing is foreseen in the near future for three undertakings which were not in a position to make their presentation in November, and if you wish to attend, the opportunity may be given for you then to expand your written comments not only on this matter but also on my separate letter to you of today' s date dealing with certain other issues."

56 There can therefore be no question of the existence of a new objection and of a breach of the rights of the defence.

57 In any event, even on the assumption that it is established, the fact that in the written pleadings submitted to the Court the Commission has adduced arguments going further than the arguments contained in the Decision is irrelevant since the present case is concerned with the review of the legality of the Decision challenged by the action brought by the applicant.

58 Consequently, this ground of objection cannot be upheld.

4. Non-disclosure of the minutes of the hearings

59 The applicant contends that Articles 1 and 9(4) of 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 (Official Journal, English Special Edition 1963-1964, p. 47) and Article 19(1) and (2) of Regulation No 17 require the Commission to hold a hearing of the undertakings concerned so as to enable them to make known their point of view and to set down the essential content of the statements made by each person heard in minutes which are then submitted for that person' s approval. Since the members of the Commission and those of the Advisory Committee do not attend the hearings, they can only become acquainted with the undertakings' arguments through a reading of the minutes. They must therefore have available duly approved minutes of the hearings in order to be able to come to a decision with full knowledge of the facts. However, this was not the case in this instance, since the final minutes were sent to the applicant only on 8 July 1986, that is to say more than two months after the adoption of the Decision.

60 According to the applicant, that irregularity vitiates the legality of the Decision since there is no reason for excluding the possibility that the Decision might have been different if the members of both of the aforementioned bodies had been in the possession of the minutes of the hearings incorporating the numerous amendments made by Solvay to the provisional version of those minutes concerning its statements at the hearing.

61 The Commission replies that Article 9(4) of Regulation No 99/63 does not state the period within which the undertakings must approve the minutes nor the bodies to which the provisional and final minutes must be submitted.

62 It goes on to state that the amendments of the draft minutes requested by the applicant were insignificant and that the Decision could have been no different if the final minutes had been provided to the members of the Advisory Committee and to the members of the Commission and that therefore, if there had been any procedural irregularity, it was not necessary to examine it (judgment of the Court of Justice of 10 July 1980 in Case 30/78 Distillers Company v Commission [1980] ECR 2229, at paragraph 26).

63 As regards the Advisory Committee, the Commission points out that although its members did not have the provisional minutes, the Member States were represented at the hearings, with the exemption of Greece and Luxembourg which did not attend the second session of hearings. The minutes therefore simply serve as a reminder for the authorities of the Member States. In this regard, it matters little that the official present at the hearings was a person other than the member of the Advisory Committee.

64 As regards the members of the Commission, they had not only the provisional minutes but also the observations which the undertakings had made on those minutes.

65 The Court observes that it is apparent from the case-law of the Court of Justice that the provisional nature of the minutes of the hearing submitted to the Advisory Committee and to the Commission can only amount to a defect in the administrative procedure capable of vitiating the resulting decision on the grounds of illegality if the document in question is drawn up in such a way as to mislead the persons to whom it is addressed in a material respect (judgment of the Court of Justice in Case 44/69 Buchler & Co v Commission [1970] ECR 733, paragraph 17).

66 As regards the minutes forwarded to the Commission, it must be pointed out that along with the provisional minutes the Commission received the remarks and observations made in relation to those minutes by the undertakings, and it must therefore be concluded that the members of the Commission were aware of all the relevant information before they adopted the Decision.

67 As regards the provisional minutes forwarded to the Advisory Committee, it must be pointed out that the applicant has not indicated how those minutes did not record the hearings in a faithful and correct way and that it has confined itself to referring in general to the amendments which it had addressed to the Commission. It has not therefore established that the minutes in question were drawn up in such a way as to mislead the members of the Advisory Committee on an essential issue.

68 This ground of challenge must therefore be dismissed.

Proof of the infringement

69 According to the Decision (point 80, first paragraph), from 1977 onwards the polypropylene producers supplying the EEC had been party to a whole complex of schemes, arrangements and measures decided on in the framework of a system of regular meetings and continuous contact. The Decision (point 80, second paragraph) goes on to state that the overall plan of the producers was to meet and reach agreement upon specific matters.

70 It is therefore necessary to verify first of all whether the Commission has established to the requisite legal standard its findings of fact relating to (A) the meeting of the European Association for Textile Polyolefins (EATP) on 22 November 1977, (B) the system of regular meetings of polypropylene producers, (C) the price initiatives, (D) the measures designed to facilitate the implementation of the price initiatives and (E) the fixing of target tonnages and quotas, taking into account (a) the contested decision and (b) the arguments of the parties, before going on to (c) an assessment of them; it will then be necessary to review the application of Article 85(1) of the EEC Treaty to those facts.

1. The findings of fact

A. The EATP meeting of 22 November 1977

(a) The contested decision

71 In the Decision (point 17, fourth paragraph; point 78, third paragraph; point 104, second paragraph) the Commission asserts that the applicant, like Hercules, Hoechst, ICI, Linz, Rhône-Poulenc and Saga, stated that it would be supporting the announcement made by Monte in an article which appeared on 18 November 1977 in the trade press (European Chemical News, hereinafter referred to as "ECN") of its intention to raise the price for raffia to DM 1.30/kg as from 1 December. The various statements made in this regard at the EATP meeting held on 22 November 1977, as recorded in the minutes, showed, according to the Decision, that the DM 1.30/kg level set by Monte had been accepted by the other producers as a general industry "target".

72 According to the Decision (point 16, first and second paragraphs), that declaration of support was made in the context of discussions initiated between the producers with a view to avoiding a substantial drop in price levels and attendant losses, discussions in which the major producers, Monte, Hoechst, ICI and Shell, initiated a "floor-price agreement" which was to be in operation by 1 August 1977 and the details of which were communicated to the other producers, including Hercules.

73 The Decision (point 16, fifth and sixth paragraphs) further states that ICI and Shell admit that there were contacts with other producers as to how the price slide could be checked. However, the Commission acknowledges that, with the exception of the "big four" (Hoechst, ICI, Monte and Shell) and Hercules and Solvay, it was not able to establish the identity of the producers involved in discussions at that time or to obtain details of the operation of the floor-price agreement.

74 The Decision (point 17, first paragraph) states once more that it was about the time of Monte' s announcement of its intention to increase prices that the system of regular meeting of polypropylene producers began. It points out, however, that on ICI' s own admission contact was occurring between producers before that date, probably by telephone and on an ad hoc basis.

(b) Arguments of the parties

75 The applicant maintains that it never participated in, or supported in any way, the floor-price agreement, as the Commission accused it of doing in its letter of 29 March 1985. If an attempt was made in this regard on the initiative of the "big four", it was in order to limit the consequences for the established producers of the arrival on the market of new producers such as Solvay. The applicant had no interest in following a price increase since at that time it had the sole aim of using its production capacity to the full.

76 According to the applicant, those claims are not contradicted by the statements made on 22 November 1977 by its representative at the meeting of the EATP, the consumer association. When the problem of polypropylene prices was raised, the representative complained about the collapse in prices, which, in his view, was just as unfavourable to producers as to consumers. Neither the record of that meeting nor any other document proves that Solvay participated in any initiative designed to set the price at DM 1.30/kg for 1 December 1977. The comments of Solvay' s representative were perfectly in line with the policy of bluff and double-dealing adopted at the meetings by the applicant whose interests lay in having the other producers increase their prices so that it could penetrate the market more quickly.

77 In the reply, the applicant points out the hesitation shown by the Commission in its statement of defence in which it states: "It may be" that the other producers (which included Solvay) subscribed to that agreement.

78 The Commission replies that the aim of the cartel was to lay open the way, in a concerted fashion, for the entry onto the market of new producers by reconciling their interests with those of the established producers, the new producers wishing to acquire market share whilst the others wished to maintain their existing market shares, in a situation in which prices were clearly below the "break-even point", as is shown by the statements made by the applicant at the EATP meeting of 22 November 1977, that is to say in the presence of customers.

79 The Commission states that those statements must be considered in the context of the central agreement on floor prices made in mid-1977 between the four main producers: Monte, Hoechst, ICI and Shell (main statement of objections, Appendix 2). Following that agreement, an initiative was implemented in November 1977 and at least five other producers (Rhône-Poulenc, Hercules, Linz, Saga and Solvay) subscribed to it by announcing their support for that initiative at the EATP meeting of 22 November 1977 (main statement of objections, Appendix 6). However, it was not possible to establish whether they became parties to the central agreement or whether they acted only as part of a concerted practice. A discussion on prices took place between Shell and Solvay at a meeting of 30 August 1977.

(c) Assessment by the Court

80 The Court notes as a preliminary point that the Commission has no direct evidence of contacts between Solvay and other producers before the EATP meeting of 22 November 1977 since it may not use in evidence against the applicant the note dated 6 September 1977 of the meeting which was held between Shell and Solvay on 30 August 1977 since that document was not properly disclosed to the applicant. Consequently, any such contacts should not be considered in examining the statements made by the applicant at that EATP meeting.

81 It must be noted in this regard that the statements made by the applicant at the EATP meeting of 22 November 1977 (main statement of objections, Appendix 6) constitute an expression of general support for the policy of increasing prices initiated by Monte and a precise indication, intended for its competitors, of the conduct which it decided to adopt on the market. The following passage occurs in the record of those statements:

"On the subject of sale price, Solvay associates itself with the opinion expressed by the other producers. (...) Solvay will fall into line with the prices already quoted by the main producers. The level of these prices still does not seem at all sufficient to ensure a normal profitability for the PP manufacturers."

Those findings are borne out by the note of the following EATP meeting, of 26 May 1978 (main statement of objections, Appendix 7), which records the assessments made by the various producers of the results obtained on the market following the meeting of 22 November 1977. The applicant stated that:

"Re-reading the Minutes of the last meeting which was held in Paris on 22nd November, 1977, everyone knew that the polypropylene price situation in Europe was absolutely catastrophic. Today, six months later, we can confirm that the situation has improved slightly, even if the price levels have not reached the desired level."

82 It follows that the Commission has established to the requisite legal standard that the applicant, in the presence of its competitors, expressed general support for the policy of increasing prices initiated by Monte (Decision, point 17, fourth paragraph, first sentence; point 78, third paragraph, second sentence) and that it gave a precise indication of the conduct which it had decided to adopt on the market.

B. The system of regular meetings

(a) The contested decision

83 According to the Decision (point 18, first paragraph), at least six meetings were held during 1978 between senior managers responsible for the overall direction of the polypropylene business of some of the producers ("bosses"). This system soon evolved to include a lower tier of meetings attended by managers possessing more detailed marketing knowledge ("experts") (reference is made to ICI' s reply to the request for information under Article 11 of Regulation No 17, main statement of objections, Appendix 8). The Decision accuses the applicant of having attended those meetings regularly until at least the end of September 1983 (point 105, fourth paragraph).

84 The Decision (point 21) states that the purpose of those regular meetings of polypropylene producers was, in particular, to set price and sales volume targets and to monitor their observance by the producers.

(b) Arguments of the parties

85 The applicant admits to having participated quite regularly in the "bosses' " and "experts' " meetings but contends that the Commission may not deduce from this fact that Solvay entered into anti-competitive agreements. In this regard, it advances two arguments relating to the nature of its participation in the meetings and to the different interests of the various producers which prevented any agreement on prices or quotas from being reached. GROUNDS CONTINUED UNDER DOC.NUM : 689A0012.1

86 In the present case, it states that it was not possible for the Commission to deduce an intention to enter into commitments on the part of the participants in the meetings from the mere fact that they expressed their agreement, without examining the interests and the particular situation of each undertaking. Solvay participated in the meetings not in order to enter into any commitment but solely in order to obtain technical and commercial information which, as a newcomer on the market, it did not have and which was necessary for its future development. In order to be able to continue participating in the meetings without committing itself, Solvay engaged in double-dealing and provided inaccurate information to the other undertakings.

87 The applicant further states that its conduct on the market was not consistent with the outcome of the meetings, as its competitors repeatedly noted at meetings, in particular at the meeting of 15 June 1981 which it did not attend (main statement of objections, Appendix 64). When in 1982 Solvay was finally using its production capacity to the full, the information it obtained became useless and at the meeting of 13 May 1982 (main statement of objections, Appendix 24) it proposed to end the producers' meetings.

88 It also argues that the lack of commitment is apparent from the major differences of interest which existed between the producers. The aim of the newcomers was rapidly to bring their production capacity on to full stream by adopting an aggressive pricing policy whereas the established producers wished to maintain their market share. Those differences of interest made the conclusion of any real comprehensive agreement between all the producers impossible. It does not, however, rule out the possibility that the "big four" attempted to conclude an agreement in order to maintain their market share.

89 The Commission, for its part, states that where the existence of a cartel is established by a whole body of evidence, as it is in the present case, the argument that one particular party to the cartel had no intention to commit itself cannot negate the evidence of the existence of the cartel.

90 It states that, similarly, the object of the general agreement, which was to restrict competition, should not be confused with the intention of a particular party at a particular meeting. Such intention does not have to be taken into account in determining whether the undertaking participated in the general agreement, since such participation is manifested through the undertaking' s presence at the meetings at which target prices and the quota targets were set. The individual case of each undertaking cannot therefore be separated from the overall context, since the cartel in the polypropylene sector constituted a complex whole in which the undertakings participated, each one for itself, in a specific way according to their own situation and interests.

91 The Commission observes that discussions on the key parameters of competition, in particular on the level to be reached by sale prices and on the allocation of sale quotas, have nothing to do with discussions allowing a newcomer to familiarize itself with the operation of a market which it still does not know very well. It was not because it no longer needed to gather information that Solvay proposed, in May 1982 (main statement of objections, Appendix 24), that the system of meetings should be abandoned, but rather because it considered that the price cartel had lost its raison d' être owing to the restoration of the price level following the re-establishment of the balance between supply and demand. The Commission also points out that the other producers did not share its point of view and that all of them, including the applicant, reached an agreement to take advantage of that situation so as to bring about a further price increase.

92 The Commission repeats that the purpose of the meetings was to reconcile the different interests of the producers. The participants in the cartel are undertakings which are all in competition with one another and which at a given moment decided that it was in their interests to participate in the cartel. This does not exclude the possibility that from time to time a particular undertaking may have had "mental reservations" or engaged in double-dealing but without ever giving this expression. However, common sense made the Commission interpret the terms or phrases contained in the meeting notes as meaning what they say, namely that agreements were concluded at the meetings. Solvay was not a mere observer. Furthermore, it is not remotely possible that in the meetings producers who were prepared to commit themselves to agreements sat side by side with others who erected a wall of obstinate silence and showed an unhealthy interest in those negotiations. The Commission concludes that the applicant did not confine itself to being a mere observer but that it committed itself like the other participants.

(c) Assessment by the Court

93 The Court notes that, in its application, the applicant admits "having taken part [from 1979] quite regularly in meetings of all the European polypropylene producers. At those meetings, which were chaired by Monte and then by ICI, technical and commercial information was exchanged. At the initiative of the established producers, discussions took place on the setting up of a common pricing policy and, at certain times, on the elaboration of a sales quota system. It is conceivable in this regard that the producers established on the market were attempting to come to an agreement in order to maintain their market shares".

94 That statement is confirmed by ICI' s reply to the request for information (main statement of objections, Appendix 8), which classifies the applicant, unlike two other producers, amongst the regular participants of the "bosses' " and "experts' " meetings.

95 The Court considers that the Commission was fully entitled to take the view, based on information provided by ICI in its reply to the request for information and which was confirmed by numerous notes of meetings, that the purpose of the meetings was, in particular, to set target prices and sales volumes. That reply contains the following passages:

"Generally speaking however, the concept of recommending 'Target Prices' was developed during the early meetings which took place in 1978";

"' Target prices' for the basic grade of each principal category of polypropylene as proposed by producers from time to time since 1 January 1979 are set forth in Schedule ...";

and

"A number of proposals for the volume of individual producers were discussed at meetings".

96 In addition, in explaining the organization of marketing "experts' " meetings as well as "bosses' " meetings from the end of 1978 or the beginning of 1979, ICI' s reply to the request for information reveals that the discussions about the fixing of target prices and sales volumes became increasingly concrete and precise whereas in 1978 the "bosses" had confined themselves to developing the actual concept of target prices.

97 Besides the foregoing passages, the following statement appears in ICI' s reply to the request for information: "Only 'Bosses' and 'Experts' meetings came to be held on a monthly basis". The Commission was fully entitled to deduce from that reply, as well as from the identical nature and purpose of the meetings, that they were part of a system of regular meetings.

98 Faced with that evidence, the applicant claims that it took part in the meetings without any anti-competitive intention since, as a newcomer on the market, it needed to obtain information in order to acquire a share of that market. In this regard, it should be observed that since it has been established that the applicant took part in those meetings and that their purpose was inter alia to fix price and sales volume targets the applicant at least gave its competitors the impression that it was participating in them in the same spirit as the others.

99 In those circumstances it is for the applicant to adduce evidence to show that its participation in the meetings was without any anti-competitive intention, by showing that it had indicated to its competitors that it was participating in the meetings in a spirit which was different from theirs.

100 It must be observed that the applicant' s arguments based on its conduct on the market and designed to show that its participation in the meetings had the sole purpose of enabling it to obtain information on foreseeable market trends do not form evidence of such a kind as to prove that it had no anti-competitive intention, since the applicant puts forward no evidence capable of proving that it had informed its competitors that its conduct on the market would not be governed by what occurred at the meetings. Even if its competitors had been told this, the mere fact of exchanging with them information which an independent operator keeps strictly secret as confidential business information is sufficient to demonstrate that it had an anti-competitive intention.

101 It follows that the Commission has established to the requisite legal standard that the applicant participated in the system of regular meetings of polypropylene producers between 1978 and September 1983, that the purpose of those meetings was, in particular, to fix price and sales volume targets, that they were part of a system and that the applicant' s participation in those meetings was not without anti-competitive intention.

C. The price initiatives

(a) The contested decision

102 According to the Decision (points 28 to 51), six price initiatives, forming part of a system for fixing price targets, could be identified, the first lasting from July to December 1979, the second from January to May 1981, the third from August to December 1981, the fourth from June to July 1982, the fifth from September to November 1982 and the sixth from July to November 1983.

103 With regard to the first of those price initiatives, the Commission (Decision, point 29) states that it has no detailed evidence of any meetings held or price initiatives undertaken in the first part of 1979. However, a note of a meeting held on 26 and 27 September 1979 shows that a price initiative had been planned based on a raffia grade price of DM 1.90/kg applicable from 1 July and DM 2.05/kg from 1 September. The Commission has price instructions from certain producers showing that those producers had given orders to their sales offices to apply this price level or its equivalent in national currencies from 1 September, in most cases before the planned price increase was announced in the trade press (Decision, point 30).

104 However, since it was difficult to get further price increases, the producers decided at the meeting held on 26 and 27 September 1979 to postpone the date for implementing the target by several months until 1 December 1979, the new plan being to "hold" the existing levels over October with the possibility of an immediate step increase to DM 1.90 or 1.95/kg in November (Decision, point 31, first and second paragraphs).

105 As regards the second price initiative, the Commission, whilst admitting (in point 32 of the Decision) that no meeting notes were found for 1980, states that at least seven producers' meetings were held in that year (reference is made to Table 3 of the Decision). Although at the beginning of the year producers were reported in the trade press as favouring a strong price push during 1980, a substantial fall occurred in market prices to a level of DM 1.20/kg or less before they began to stabilize in about September of that year. Price instructions issued by a number of producers - DSM, Hoechst, Linz, Monte, Saga and ICI - indicated that in order to re-establish price levels targets were set for December 1980 - January 1981 based on raffia at DM 1.50/kg, homopolymer at DM 1.70/kg and copolymer DM 1.95 to 2.00/kg. A Solvay internal document includes a table comparing "achieved prices" for October and November 1980 with what are referred to as "list prices" for January 1981 of DM 1.50/1.70/2.00. The original plan was to apply these levels from 1 December 1980 (a meeting was held in Zurich on 13 to 15 October) but this initiative was postponed to 1 January 1981.

106 The Decision (point 33) refers to Solvay' s participation in two meetings in January 1981, at which it was decided that a price increase, fixed in December 1980 for 1 February 1981, was required in two stages on the basis of DM 1.75/kg for raffia: the 1 February target was to remain at DM 1.75/kg and a target of DM 2.00/kg was to be introduced "without exception" from 1 March. A table was drawn up in six national currencies of the target prices for six principal grades, to come into effect on 1 February and 1 March 1981. Documentation obtained from various producers shows in particular that they took steps to introduce the targets set for February and March.

107 According to the Decision (point 34), the plan to move to DM 2.00/kg on 1 March not, however, appear to have succeeded. The producers modified their expectations and now hoped to reach the DM 1.75/kg level by March. An experts' meeting, of which no record survives, was held in Amsterdam on 25 March 1981 but immediately afterwards at least BASF, DSM, ICI, Monte and Shell gave instructions to raise target (or "list") prices to the equivalent of DM 2.15/kg for raffia, effective on 1 May. Hoechst gave identical instructions for 1 May but was some four weeks behind the others in doing so. Some of the producers allowed their sales offices flexibility to apply "minimum" or "rock bottom" prices somewhat below the agreed targets. During the first part of 1981 there was a strong upward movement in prices, but despite the fact that the 1 May increase was strongly promoted by the producers momentum was not maintained. By mid-year the producers anticipated either a stabilizing of price levels or even some downward movement as demand fell during the summer.

108 As regards the third price initiative, the Decision (point 35) states that Shell and ICI had already foreseen a further price initiative in September/October 1981 in June of that year when the slowing down of the first-quarter price rise had become apparent. Shell, ICI and Monte met on 15 June 1981 to discuss methods of implementing higher prices in the market. Within a few days of this meeting both ICI and Shell instructed their sales offices to prepare the market place for a major rise in September based on a plan to move the raffia price to DM 2.30/kg. Solvay also reminded its Benelux sales office on 17 July 1981 to warn customers of a substantial price increase due to take effect on 1 September, the exact amount of which was to be decided in the last week of July (when, significantly, an experts' meeting was planned for 28 July 1981). The original plan to go for DM 2.30/kg in September 1981 was revised (probably at this meeting) with the planned level for August back to DM 2.00/kg for raffia. The September price was to be DM 2.20/kg. A handwritten note obtained at the premises of Hercules and dated 29 July 1981 (the day after the meeting, which Hercules probably did not attend) lists these prices as the "official" prices for August and September and refers in cryptic terms to the source of the information. More meetings were held in Geneva on 4 August and in Vienna on 21 August 1981. Following these sessions, new instructions were given by producers to go for a price of DM 2.30/kg on 1 October. BASF, DSM, Hoechst, ICI, Monte and Shell gave virtually identical price instructions to implement these prices in September and October.

109 According to the Decision (point 36), the plan now was to move during September and October 1981 to a "base price" level of DM 2.20 to 2.30/kg for raffia. A Shell document indicates that originally a further step increase to DM 2.50/kg on 1 November had been mooted but was abandoned. Reports from the various producers showed that during September prices increased and the initiative continued into October 1981 reaching achieved market prices of some DM 2.00 to 2.10/kg for raffia. A Hercules note shows that during December 1981 the target of DM 2.30/kg was revised downwards to a more realistic DM 2.15/kg, but reports that "general determination got prices up to DM 2.05, the closest ever to published (sic) target prices". By the end of 1981, the trade press was reporting polypropylene market prices as raffia DM 1.95 to 2.10/kg, some 20 pfennig below the producers' targets. Capacity utilization was said to be running at a "healthy" 80%.

110 The fourth price initiative of June to July 1982 took place as supply and demand returned into balance on the market. That initiative was decided upon at the producers' meeting of 13 May 1982 at which Solvay participated and during which a detailed table of price targets for 1 June was drawn up for various grades of polypropylene in various national currencies (DM 2.00/kg for raffia) (Decision, points 37, 38 and 39, first paragraph).

111 The meeting of 13 May 1982 was followed by price instructions from ATO, BASF, Hoechst, Hercules, Huels, ICI, Linz, Monte and Shell, corresponding, with a few insignificant exceptions, to the target prices set at the meeting (Decision, point 39, second paragraph). At the meeting on 9 June 1982, the producers were able to announce only modest increases.

112 According to the Decision (paragraph 40), the applicant also participated in the fifth price initiative of September-November 1982 decided upon at the meeting on 20 and 21 July 1982, the aim of which was to achieve a price of DM 2.00/kg by 1 September and DM 2.10/kg by 1 October, in so far as it was present at the majority, and in most cases, all the meetings held between July and November 1982 at which that initiative was planned and monitored (Decision, point 45). At the meeting of 20 August 1982, the increase planned for 1 September was postponed to 1 October and that decision was confirmed at the meeting on 2 September 1982 (Decision, point 41).

113 Following the meetings of 20 August and 2 September 1982, ATO, DSM, Hercules, Hoechst, Huels, ICI, Linz, Monte and Shell gave price instructions in accordance with the price target set at those meetings (Decision, point 43).

114 According to the Decision (point 44), at the meeting on 21 September 1982 an examination of the measures taken to achieve the target previously set was undertaken and the undertakings expressed general support for a proposal to raise the price to DM 2.10/kg by November-December 1982. That increase was confirmed at the meeting on 6 October 1982.

115 Following the meeting on 6 October 1982, BASF, DSM, Hercules, Hoechst, Huels, ICI, Linz, Monte, Shell and Saga gave price instructions applying the increase decided upon (Decision, point 44, second paragraph).

116 ATO, BASF, DSM, Hercules, Hoechst, Huels, Linz, Monte and Saga supplied the Commission with price instructions issued to their local sales offices, which corresponded not only with each other in terms of amount and timing but also with the target-price table attached to ICI' s account of the "experts' " meeting held on 2 September 1982 (main statement of objections, Appendix 29) (Decision, point 45, second paragraph).

117 According to the Decision (point 46, second paragraph), the December 1982 meeting resulted in an agreement that the level planned for November-December was to be established by the end of January 1983.

118 Finally, according to the Decision (point 47), the applicant participated in the sixth price initiative of July-November 1983. At the meeting on 3 May 1983, it was agreed that the producers would try to apply a price target of DM 2.00/kg in June 1983. However, at the meeting on 20 May 1983, the target previously set was postponed until September and an intermediate target was fixed for 1 July (DM 1.85/kg). Subsequently, at a meeting on 1 June 1983, the producers present, which did not include the applicant, reaffirmed complete commitment to the DM 1.85/kg increase. On that occasion, it was agreed that Shell would lead publicly in a trade publication, European Chemical News (hereinafter referred to as "ECN").

119 The Decision (point 49) states that after the meeting of 20 May 1983, ICI, DSM, BASF, Hoechst, Linz, Shell, Hercules, ATO and Petrofina issued instructions to their sales offices to apply from 1 July a price table based on DM 1.85/kg for raffia. Solvay was also behind the other producers in notifying its sales offices of the increase but its internal documentation, dating from 26 July, set immediate minimum prices for each country identical with the DM 1.85/kg raffia target and gave new minima applicable from 1 September based on the DM 2.00 which had been agreed by the producers. The Decision concludes that, with the exception of Huels, for which the Commission found no price instructions for July 1983, all the producers which had attended the meetings or had promised support for the new price target of DM 1.85/kg are shown to have given instructions to implement the new price.

120 The Decision (point 50) also points out that further meetings, in which all the regular participants took part, took place on 16 June, 6 and 21 July, 10 and 23 August and 5, 15 and 29 September 1983. At the end of July and beginning of August 1983, BASF, DSM, Hercules, Hoechst, Huels, ICI, Linz, Solvay, Monte and Saga all issued price instructions to their various national sales offices for application from 1 September based on raffia at DM 2.00/kg, whilst a Shell internal note of 11 August, relating to its prices in the United Kingdom, indicated that its United Kingdom subsidiary was "promoting" basic prices to be in force on 1 September corresponding to the targets fixed by the other producers. By the end of the month, however, Shell was instructing the United Kingdom sales office to postpone the full increase until the other producers had established the desired basic level. The Decision states that, with minor exceptions, those instructions were identical by grade and currency.

121 According to the Decision (point 50, last paragraph), the instructions obtained from the producers show that it was later decided to maintain the impetus of the September move with further steps based on raffia at DM 2.10/kg on 1 October, rising to DM 2.25/kg on 1 November. It is further stated (point 51, first paragraph) that BASF, Hoechst, Huels, ICI, Linz, Monte and Solvay each sent instructions to their sales offices setting identical prices for October and November, with Hercules initially fixing slightly lower prices.

122 The Decision (point 51, second and third paragraphs) states that while ATO and Petrofina were present at all relevant meetings, they both claim that if any internal price instructions were given for the period covering the price initiative of July-November 1983, they were given by word of mouth. However, an internal note obtained at the premises of ATO and dated 28 September 1983 shows a table headed "Rappel du prix de cota (sic)" giving for various countries prices for September and October for the three main grades of polypropylene which are identical to those of BASF, DSM, Hoechst, Huels, ICI, Linz, Monte and Solvay. During the investigation at the premises of ATO in October 1983 the representatives of the undertaking confirmed that these prices were communicated to sales offices.

123 According to the Decision (point 105, fourth paragraph), whatever the date of the last meeting, the infringement lasted until November 1983, since the agreement continued to produce its effects at least until that time, November being the last month for which it is known that target prices were agreed and price instructions issued.

124 Finally, the Decision (point 51, last paragraph) points out that, according to the trade press, by the end of 1983 polypropylene prices had "firmed" to reach a raffia market price of DM 2.08 to 2.15/kg (compared with the reported target of DM 2.25/kg).

(b) Arguments of the parties

125 The applicant repeats that from the fact that it attended the meetings of producers it cannot be deduced that it participated in price agreements and insists that it participated in the meetings only in order to gather information, that it engaged in double-dealing and that its conduct on the market was not consistent with the outcome of the meetings. This conduct led to Solvay being called a "permanent troublemaker" in June 1981 (main statement of objections, Appendix 64) whilst Shell, in December 1981 (Solvay reply, statement of objections, Appendix 3) and in February 1982 (Solvay reply, statement of objections, Appendix 2), pointed out the aggressiveness of Solvay' s pricing policy. In February 1983, ATO observed that Solvay had settled down somewhat (Solvay reply, statement of objections, Appendix 2 bis). Hoechst did likewise in February 1982 (Solvay reply, statement of objections, Appendix 4), as did ICI in December 1982 (main statement of objections, Appendix 35). The applicant concludes that its participation in the meetings lacked any real intention to align its prices with those of its competitors. The only other evidence mentioned by the Commission to demonstrate that Solvay had the intention of committing itself concerned two isolated meetings of 2 September 1982 (main statement of objections, Appendix 29) and 1 June 1983 (main statement of objections, Appendix 40). However, that evidence is not relevant since the Commission accuses Solvay of having been a party to a general agreement since 1977 and disregards the fact that Solvay did not attend the meeting of 1 June 1983.

126 It points out that differences of interest between the producers which were established on the market before 1977 and the newcomers, such as the applicant, made the conclusion of price agreements impossible because some wished to maintain their market share whilst pursuing a high-price policy whilst others wished to increase their market share by means of an aggressive pricing policy.

127 The applicant goes on to state that the more detailed reasoning contained in the Decision as regards the price initiatives is likewise irrelevant in an assessment of the applicant' s situation. It is based on a petitio principii, namely that at the outset there was a general agreement even if it was not always carried out. According to Solvay, however, the question was first whether there was an agreement and then whether that agreement bound each undertaking.

128 As regards the 1981 initiatives, the applicant explains that the prices which it charged on the market differed considerably from the target prices and that this proves that it did not participate in that year' s initiatives.

129 As regards the 1982 initiatives, it states that the different changes in the target prices and the prices charged by Solvay on the market clearly show that the former had no effect on the latter. The note on which the Commission relies is not conclusive (main statement of objections, Appendix 78) because although it records that Solvay was claiming a higher quota in order to compensate for the disadvantage which it had suffered through its firm price policy, that claim was made more out of bluff.

130 As regards the 1983 initiatives, the applicant explains that its price instructions for July post-dated the announcement of a price increase which appeared in ECN on 13 June 1983 (main statement of objections, Appendix 41). Consequently, it was simply following, with some delay, an initiative announced publicly as a result of the improved state of the market. It also points out that it was absent from the meeting of 1 June at which, according to the Commission, the target price was set. As regards the October 1983 initiative, the scenario was the same.

131 It concludes that in the Decision, the Commission reached conclusions by means of generalization and raised against all the producers objections which were perhaps well founded only in the case of some of them.

132 The Commission replies that, as far as the various price initiatives are concerned, Solvay' s participation in the setting of target prices is established by its regular participation in the meetings at which those prices were agreed.

133 It maintains that, although Solvay was described as a "troublemaker", this was only on one very specific occasion, at a meeting in June 1981 (main statement of objections, Appendix 64), when the market was greatly out of balance and Solvay, taking advantage of the lack of any agreement on quotas for 1981, had doubled its production capacity and sought to sell the maximum of its production at prices temporarily lower than the target prices. That conduct is not representative of the whole period.

134 In the Commission' s view, temporarily disruptive price setting, the holding of unexpressed "mental reservations", an occasional lack of the determination needed to resist the demands of customers and not grant them lower prices are just so many typical characteristics of a price cartel operating on a real market which is therefore constantly subject to some pressure from within (the participants) and from without (the customers).

135 As regards the implementation of those agreements in the form of price initiatives, the Commission states that, as far as the year 1981 is concerned, it is not surprising that in the absence of a quota agreement, Solvay was able to pursue an aggressive pricing policy, perhaps in order to obtain additional quotas later. Although the cartel operated less well in 1981, it still did not cease to exist. At all events, Solvay' s participation in the price initiative is demonstrated by its participation in the meetings for which notes are available, such as those of January 1981 (main statement of objections, Appendix 17), as well as by two internal Solvay notes indicating that it compared its prices with the target prices and that on 17 July 1981 it knew that an increase, the amount of which remained to be determined, was to come into effect in September.

136 As regards 1982, the Commission points out that Solvay admits having participated in the negotiations on prices. It continued to participate in the discussions, even though it expressed doubts about their usefulness (main statement of objections, Appendix 24). In fact, it gave firm support to the price initiatives, as is shown by a meeting note (main statement of objections, Appendix 32) pointing out the firmness shown by Solvay in Belgium and also the quota proposal made by Solvay for 1983 in which Solvay itself emphasized its own firmness on prices (main statement of objections, Appendix 78).

137 As regards 1983, the Commission states that it has price instructions issued by Solvay to its sales offices (particular objections, Solvay, Appendices 4 and 5). Those instructions correspond to the target prices agreed by the producers (main statement of objections, Appendix 40 and Appendices 42 to 52). The target prices were set at meetings at which Solvay was present (main statement of objections, Appendices 37 and 38), even though it was absent from the subsequent meeting at which those prices were simply "reaffirmed" (main statement of objections, Appendix 40). If they were published in the trade press, this was because of a decision adopted at a cartel meeting.

138 The Commission considers that there was a link between the target prices implemented in the form of instructions to sales departments and the target prices discussed at the meetings. The suggestion that this was a mere coincidence (the price instructions being the result of decisions taken individually by the producers) is not credible and is not borne out by the available evidence.

139 It contends that the difference between the price instructions and the prices obtained on the market, even if proved, does not affect the existence of the infringement, since Article 85 of the EEC Treaty prohibits agreements having the distortion of competition as their object and not necessarily as their effect. However, the Commission contends that the target prices served as the basis for negotiations with customers and that changes in the prices achieved reflected parallel changes in the target prices. The Commission recognizes, as it did in the Decision (point 74), that the target prices were not always obtained, although the gap between the target prices and the prices obtained is exaggerated by the applicant.

140 The Commission adds that it was entitled to consider that the price instructions, even though internal to the undertakings, formed part of the implementation of the price initiatives since in substance they corresponded to the guides arising from the cartel meetings and that the instructions concerned were destined for the sales offices.

(c) Assessment by the Court

141 The Court finds that the records of the regular meetings of polypropylene producers show that the producers which participated in those meetings agreed to the price initiatives mentioned in the Decision. For example, the note of the meeting on 13 May 1982 (main statement of objections, Appendix 24) states:

"everyone felt that there was a very good opportunity to get a price rise through before the holidays + after some debate settled on DM 2.00 from 1st June (UK 14th June). Individual country figures are shown in the attached table".

142 Confronted with those meeting notes, the applicant claims that differences of interests between the producers made it impossible to take pricing measures. It must be observed in this regard that, although the producers did have some differences of interest, they had a common interest in seeing a rise in the general level of prices. The established producers would thus be able to improve their output whilst the newcomers could achieve their sales volume ambitions at less cost. Consequently, the differing interests of the various producers did not hinder the taking of price initiatives designed to raise the general price level.

143 Since it has been established to the requisite legal standard that the applicant participated in the meetings at which the price initiatives were agreed, it cannot assert that it did not support the price initiatives which were decided on, planned and monitored at those meetings, without providing any evidence to corroborate that assertion. In the absence of such evidence, there is no reason to believe that the applicant would not have supported those initiatives, unlike other participants at the meetings.

144 In this regard, it must be noted that the applicant has referred to two arguments designed to show in general that it did not subscribe to the price initiatives agreed at the regular meetings of polypropylene producers. It has submitted, first, that its participation in the meetings had no anti-competitive intention and, secondly, that it took no account of the outcome of the meetings when determining its market pricing policy, as is shown by the important differences observed between the prices allegedly agreed at the meetings and the prices which it charged on the market.

145 None of those arguments can be accepted as evidence capable of corroborating the applicant' s assertion that it did not subscribe to the agreed price initiatives. The Court repeats that the Commission has established to the requisite legal standard that the applicant' s participation in the meetings was not without anti-competitive intention so that the applicant' s first argument has no foundation in the facts.

146 As regards the second argument, it must be observed first of all that, even if it were factually well founded, it is not of such a nature as to refute the applicant' s participation in the setting of target prices at the meetings but at the most demonstrates that the applicant did not implement the decisions reached at those meetings. The Decision does not assert in any way that the applicant charged prices which always corresponded to the target prices agreed at the meetings, which indicates that the contested decision is likewise not based on the implementation by the applicant of the outcome of the meetings in order to prove its participation in the setting of those target prices.

147 The Court finds that the only price initiative in respect of which the applicant advances arguments other than those referred to above is the initiative of July-November 1983. In regard to this initiative, it states that it did not participate in the meeting of 1 June 1983 at which that initiative was decided on and that its price instructions post-dated the announcement of price increases in the trade press.

148 It must be pointed out first of all that the price initiative of July 1983 was not decided on at the meeting of 1 June 1983 which the applicant did not attend but at a previous meeting held on 20 May 1983 which the applicant did attend. It is apparent from the note of a meeting of the "big four" held on 19 May (main statement of objections, Appendix 101) that they were going to propose an initiative at the "bosses' " meeting which was to be held the following day, since it is stated in that note:

"19 May : Big 4 premeeting : S. Hoechst, Z. M.P., L. Shell, D.WSHB.ER. ICI. 3 German collectively : determined move ... July - MP + ICI committed. L. in principle only. DSM + Solvay essential 20 May proposal".

This is borne out by the note of the meeting of 1 June 1983 (main statement of objections, Appendix 40), according to which "Those present reaffirmed complete commitment to the 1.85 move to be achieved by 1st July", and which therefore shows that the initiative had already been decided on previously.

149 The Court considers that the applicant cannot rely on the public announcement of prices in ECN to explain the fact that its prices were identical with those of its competitors on 26 July 1983 (letter of 29 March 1985, Annex Sol. H1) since it is clear from the note of the meeting of 1 June 1983 that, at that time, when a price initiative was decided it was announced in the trade press. That note states: "Shell was reported to have committed themselves to the move and would lead publicly in ECN". Moreover, it must be noted that the price instruction given by the applicant to the Benelux, even if it was considerably later than those of most of the other producers which corresponded to the target confirmed at the meeting of 1 June 1983, does not correspond to the price announced in ECN which was slightly higher (DM 1.90/kg instead of DM 1.85/kg).

150 Furthermore, the Commission was fully entitled to deduce from ICI' s reply to the request for information (main statement of objections, Appendix 8), in which it is stated that:

"' Target prices' for the basic grade of each principal category of polypropylene as proposed by producers from time to time since 1 January 1979 are set forth in Schedule ..."

that those initiatives were part of a system of fixing target prices.

151 Finally, although the last meeting of producers proved by the Commission to have taken place was that held on 29 September 1983, the fact rema