Judgment of the Court of First Instance (First Chamber) of 10 March 1992. - Chemie Linz AG v Commission of the European Communities. - Competition - Concepts of agreement and concerted practices - Collective responsibility. - Case T-15/89.



European Court reports 1992 Page II-01275



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 - Access to the file - Commission' s obligation arising from rules laid down by itself in a report on competition policy

3. 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)

4. Competition - Administrative procedure - Respect for the rights of the defence - Whether parties involved in a proceeding are entitled to see the hearing officer' s report and comment upon it - None

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

(EEC Treaty, Art. 85(1))

6. 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)

7. 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))

8. 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))

9. Acts of the institutions - Reasoning - Duty to state reasons - Scope - Decision implementing the competition rules

(EEC Treaty, Art. 190)

10. Competition - Community rules - Infringements - Intentional - Meaning

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

11. Action for annulment - Consideration to be given by the Court of its own motion to the question of the existence of the contested measure - Conditions

(EEC Treaty, Art. 173, second para.)

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. Once the Commission, going beyond what is required by observance of the rights of the defence, has established a procedure for providing access to the file in competition cases and has laid down the rules of that procedure and published in them in one of its reports on competition policy, it may not depart from the rules which it has imposed on itself and thus has the obligation to make available to the undertakings involved in Article 85(1) proceedings all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

3. The provisional nature of the minutes of the hearing submitted to the Advisory Committee on Restrictive Practices and Dominant Positions, can amount to a defect in the administrative procedure capable of vitiating the resulting decision on the grounds of illegality only 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.

4. The rights of the defence do not require that undertakings involved in proceedings under Article 85(1) of the EEC Treaty should be able to comment on the hearing officer' s report. Respect for the rights of the defence is ensured to the requisite legal standard if the various bodies involved in drawing up the final decision have been properly informed of the arguments put forward by the undertakings in response to the objections notified to them by the Commission and to the evidence presented by the Commission in support of those objections. The hearing officer' s report is a purely internal Commission document which is in the nature of an opinion and whose purpose is neither to supplement or correct the undertaking' s arguments nor to set forth fresh objections or adduce fresh evidence against the undertakings.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. It is not necessary for an undertaking to have been aware that it was infringing a prohibition laid down by the competition rules in the Treaty for an infringement to be regarded as having been committed intentionally; it is sufficient that it could not have been unaware that the object of conduct in question was the restriction of competition.

11. Even though the Community court, in an action for annulment under the second paragraph of Article 173 of the Treaty, must of its own motion consider the issue of the existence of the contested measure, that does not mean that in every action brought under the second paragraph of Article 173 of the Treaty the possibility that the contested measure is non-existent must automatically be investigated. It is only in so far as the parties put forward sufficient evidence to suggest that the contested measure is non-existent that the Community court must review that issue of its own motion.

Parties

In Case T-15/89,

Chemie Linz AG, a company incorporated under Austrian law, having its registered office at Linz, Austria, represented by O. Lieberknecht, Rechtsanwalt, Duesseldorf, with an address for service in Luxembourg at the Chambers of A. Bonn, 20 Côte d' Eich,

applicant,

v

Commission of the European Communities, represented by Anthony McClellan, Principal Legal Adviser, and Bernhard Jansen, a member of its Legal Service, acting as Agents, 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, 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 Chemie Linz AG in Austria. 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 NV in Belgium, ATO Chimie SA and Solvay et Cie SA in France, SIR in Italy, DSM NV 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 NV slightly below 6%, ATO Chimie SA, BASF AG, DSM NV, 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 EEC producers operating at that time supplied the product in most, if not all, Member States.

3 Chemie Linz AG was one of the producers supplying the market before 1977. Its position on the west European polypropylene market was that of a medium-sized producer, and its market share was between about 3.2 and 3.9%.

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 NV ("DSM"),

Hercules Chemicals NV ("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 NV, Hercules Chemicals NV, 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 NV, a fine of 2 750 000 ECU, or Fl 6 657 640;

(v) Hercules Chemicals NV, 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.

Procedure

17 These are the circumstances in which, by application lodged at the Registry of the Court of Justice on 11 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 and T-6/89 to T-14/89).

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 Chemie Linz claims that the Court should:

(i) annul the defendant' s decision of 23 April 1986 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.149 - Polypropylene), notified on 28 May 1986, in so far as it concerns the applicant;

(ii) in the alternative, annul Article 3 of the abovementioned decision in so far as the fine imposed by that article exceeds the amount of a reasonable fine, to be fixed by the Court of Justice;

(iii) order the defendant 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 Tribunal 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) failed to disclose to the applicant documents on which it based the Decision, (2) based itself on unreliable evidence, (3) did not give the applicant access to the whole of the file, (4) raised certain objections upheld against the applicant for the first time in the Decision, (5) the final record of the hearings was not transmitted to the Members of the Commission or to the Advisory Committee and (6) the report of the hearing officer was not provided to the Members of the Commission, the Advisory Committee or the applicant; 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 its anti-competitive effect; 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) partially time-barred, (2) disproportionate to the duration of the alleged infringement and (3) 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 are the note of the meeting of 13 May 1982 drawn up by an employee of Hercules (Decision, point 15(b) ), the note of the meeting of 10 March 1982 drawn up by an employee of ICI (Decision, points 15(b) and 58), a document allegedly found at the premises of Solvay dated 6 September 1977 (Decision, point 16, penultimate paragraph), Shell' s reply to the statement of objections (Decision, point 17), the replies of Amoco, ATO, BASF, DSM, Hoechst, Huels and Monte to the request for information (Decision, point 18), price instructions (Decision, points 25 and 88), two sets of minutes of Shell internal meetings held on 5 July and 12 September 1979 (Decision, points 29 and 31), a Solvay internal document (Decision, point 32), a reminder sent by Solvay to its sales offices on 17 July 1981 (Decision, point 35), extracts from the trade press from the end of 1981 (Decision, point 36), an ICI internal note referring to the "firm climate" (Decision, point 46), a Shell document headed "PP W. Europe - Pricing" and "Market quality report" (Decision, point 49), Shell documents concerning the United Kingdom and France (Decision, point 49), an internal ATO note dated 28 September 1983 (Decision, point 51), an undated ICI note intended as a briefing for a meeting with Shell in or about May 1983 (Decision, point 63, second paragraph), a planning document relating to the first quarter of 1983 found at the premises of Shell (Decision, point 63, third paragraph) and, finally, documents concerning the matters discussed at meetings found at the premises of ATO, DSM and Shell (Decision, point 70).

32 In that regard it adds, first of all, that the access-to-file procedure is no substitute for the production of those documents, unless the Commission indicates during that procedure - which it did not - on which documents it intends to base its decision; secondly, that although the trade press is an information source which is open to all, the Commission must nevertheless state precisely the references of the matters on which it intends to rely, which it did not; thirdly, the Commission cannot properly assert that certain documents did not concern the applicant or merely confirmed documents which were already known, since this was, according to the Commission itself, a collective infringement.

33 The Commission replies that the applicant' s assertions are in part incorrect as a matter of fact and, for the rest, insignificant as a matter of law. Some of the documents were made available to the applicant either by being attached to the main statement of objections, by appearing in the trade press, of which Linz cannot pretend to be unaware (even if the Commission did not give precise references), or by being produced during the access-to-file procedure, which is precisely intended to enable undertakings to examine the evidence held by the Commission and prepare their defence.

34 It states that other documents did not need to be provided either because they did not concern the applicant or because they merely confirmed other documents.

35 The Commission acknowledges, however, that an undated ICI note intended as a briefing for a meeting with Shell, referred to in point 63 of the Decision, and the note of the meeting of 10 March 1982 drawn up by an ICI employee, referred to in point 58 of the Decision, were not disclosed, as the result of an error. However, the latter note merely confirms a note of the same meeting found at the premises of Hercules which was disclosed (main statement of objections, Appendix 23), and it is used only in order to identify a table which was also disclosed (main statement of objections, Appendix 71).

36 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 those documents cannot be regarded as admissible evidence as far as it is concerned (judgment of the Court of Justice 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, at paragraph 21).

37 In this instance, only the documents mentioned in the main or specific 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.

38 It follows that, of the documents mentioned by the applicant, only the following documents may be used as evidence against the applicant: the price instructions issued by various producers (Decision, points 25 and 88), which are mentioned in points 58 and 75 of the main statement of objections, of which they also form Appendices 19, 42, 46, 50 and 52, and are attached to the letter to the applicant of 29 March 1985; the ICI internal note on the "firm climate" (Decision, point 46), which is mentioned in point 71 of the main statement of objections, of which it also forms Appendix 35; the documents found at the premises of ATO (Decision, point 70), mentioned in points 94 and 102 of the main statement of objections, of which they also form Appendices 60 and 72. The other documents referred to by the applicant may not be considered to be evidence admissible against it in the present case.

39 The question whether the last-mentioned documents provide 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. Probative value of the documents used as evidence against the applicant

40 The applicant argues that the Commission relied on rumours, on simple presumptions and suppositions, or on imaginary empirical theories. It states that the notes of meetings are not minutes which were approved and signed, but simple summaries which may contain an element of interpretation, deformation, exaggeration or wishful thinking on the part of their author. Their probative value is undermined by the divergent conduct of the undertakings on the market.

41 The Commission states that it holds an array of evidence spread over a period of six and a half years proving the infringement of which the polypropylene producers were accused. It emphasizes that its findings are based on documentary evidence and not on rumours or on the statements of witnesses. In particular, there is no reason to doubt the accuracy and reliability of the notes of meetings.

42 The Court notes that the content of the reports of meetings originating from ICI is confirmed by various documents, such as a number of tables relating to the sales volumes of the various producers and price instructions matching in their amount and their date of entry into force the price targets mentioned in those meeting reports. Similarly, the replies of various producers to the requests for information addressed to them by the Commission corroborate as a whole the content of those reports.

43 Consequently, the Commission could take the view that the meeting reports found at the premises of ICI reflected the matters discussed at the meetings fairly objectively. These meetings were chaired by different members of ICI' s staff, which made it even more necessary for them to prepare written reports on them so as to give members of ICI' s staff not attending particular meetings accurate information about the matters discussed at them.

44 In those circumstances, the burden is on the applicant to provide a different explanation of what occurred at the meetings it attended by advancing exact information, such as the notes taken by its employees during the meetings in which they took part or their testimony. The applicant has not put forward, or even offered to put forward, any such evidence before the Court.

45 The question whether the Commission relied on rumours, on simple presumptions and suppositions or on imaginary empirical theories is indissociable from the question whether the findings of fact made by the Commission in the Decision are supported by the evidence which it has produced. Since this is a question of substance related to proof of the infringement, it must be examined at a later stage together with the other questions relating to proof of the infringement.

3. Insufficient access to the file

46 The applicant considers that it did not have access to the whole file but only to the documents on which the Commission relied in the statement of objections, that is to say solely documents containing incriminating evidence. In Linz' s view the fairness of the procedure and the right of the parties to be heard is not guaranteed if undertakings cannot have access to all documents, whether incriminating or exculpatory. That defect, it says, cannot be repaired before the Community courts.

47 The applicant states that it is aware that no right of access to the whole of the file for parties to administrative proceedings can be inferred from the case-law of the Court of Justice (judgment in Joined Cases 43 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 25). However, it submits that such a right is recognized in several Member States and could be treated as a general principle of law common to the laws of the Member States (by reference to the second paragraph of Article 215 of the EEC Treaty). It asks this Court to reconsider the case-law.

48 The applicant adds that even under the existing case-law the Commission did not meet the appropriate standards, since it failed to put exculpatory documents at the applicant' s disposal.

49 The Commission replies that it is not obliged to disclose the whole of the file to the parties concerned (judgment of the Court of Justice in Joined Cases 43 and 63/82 VBVB and VBBB v Commission, cited above, paragraph 25). In this case, moreover, although it was not obliged to do so the Commission granted access to all the documents in its possession (with the exception of documents containing business secrets) both in the statement of objections and its letter of 29 March 1985 and in the access-to-file procedure. It is thus futile for the applicant to ask the Community courts to alter their approach.

50 Furthermore, it is not true, as the applicant alleges, that the Commission made available only inculpatory documents and withheld all exculpatory documents. Indeed, the applicant has not identified any document to support that serious accusation.

51 The Court observes that regard for the rights of the defence requires that an applicant must have been put in a position to express, as it sees fit, its views on all the objections raised against it by the Commission in the statement of objections addressed to it and on the evidence which is to be used to support those objections and is mentioned by the Commission in the statement of objections or annexed to it (judgment of the Court of Justice in Case 322/81 Nederlandsche Banden-Industrie Michelin NV v Commission [1983] ECR 3461, paragraph 7 at p. 3498).

52 However, regard for the rights of the defence does not require that an undertaking involved in a procedure pursuant to Article 85(1) of the EEC Treaty must be able to comment on all the documents forming part of the Commission' s file since there are no provisions requiring the Commission to divulge the contents of its files to the parties concerned (judgment of the Court of Justice in Joined Cases 43 and 63/82 VBVB and VBBB v Commission, cited above, paragraph 25 at p. 59).

53 It must be observed, however, that in establishing a procedure for providing access to the file in competition cases, the Commission imposed on itself rules exceeding the requirements laid down by the Court of Justice. According to those rules, which are explained in the Twelfth Report on Competition Policy (pages 40 and 41), the Commission

"... permits the undertakings involved in a procedure to inspect the file on the case.

... Undertakings are informed of the contents of the Commission' s file by means of an annex to the statement of objections or to the letter rejecting a complaint, listing all the documents in the file and indicating documents or parts thereof to which they may have access.

They are invited to come and consult these documents on the Commission' s premises. If an undertaking wishes to examine only a few of them the Commission may forward copies.

However, the Commission regards the documents listed below as confidential and accordingly inaccessible to the undertaking concerned:

(i) documents or parts thereof containing other undertakings' business secrets;

(ii) internal Commission documents, such as notes, drafts or other working papers;

(iii) any other confidential information, such as documents enabling complainants to be identified where they wish to remain anonymous, and information disclosed to the Commission subject to an obligation of confidentiality."

The Commission may not depart from rules which it has thus imposed on itself (judgments of the Court of Justice in Case 81/82 Commission v Council [1973] ECR 575, paragraph 9 at p. 584, and in Case 148/73 Louwage v Commission [1974] ECR 81).

54 It follows that the Commission has an obligation to make available to the undertakings involved in Article 85(1) proceedings all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

55 The Court observes that the Commission categorically denies that its officials failed to make available to the applicant all the documents which might contain material exculpating it.

56 In response to the Commission' s denials the applicant has not put forward any evidence to show that the Commission made only selected documents available to the applicant in order to prevent it from refuting the evidence advanced by the Commission to prove its participation in the infringement. It refers to statements made by the Commission' s rapporteur to its lawyer but has not proved or offered to prove that such statements were made and had the meaning which it attributes to them.

57 Consequently, this ground of challenge must be dismissed.

4. New objections

58 The applicant contends that in accusing the undertakings of having participated in a "framework agreement" and a "single continuing agreement" the Decision makes both an assertion of fact and a legal categorization of the infringement. However, at no time during the administrative procedure did the Commission allege that the undertakings had concluded a "framework agreement", that Linz had taken part in the conclusion of such an agreement or even that it subsequently became aware of it. Moreover, according to the applicant the legal categorization of the infringement was the subject of unclear and contradictory explanations by the Commission during the administrative procedure.

59 The applicant submits that the Decision does not simply "supplement" or "redraft" the objections previously raised by the Commission (judgments of the Court of Justice in Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraphs 91 to 93, and in Joined Cases 209 to 215 and 218/78 Van Landewyck v Commission [1980] ECR 3125, paragraph 68), but entirely replaces the objections raised against the applicant or replaces them from the point of view of the legal grounds. Accordingly, the Decision is based on objections on which Linz was not able to state its views.

60 The Commission denies that the objection concerning the conclusion of a framework agreement is a new and surprising development in the Decision, since in the main statement of objections addressed to the applicant (points 128 and 132) the Commission had already spoken of "continuing and institutionalized cooperation", which is in itself a sufficiently clear description of a framework agreement. Moreover, in its letter of 29 March 1985 the Commission indicated that it did not exclude the possibility of a "core" agreement among the four major producers (p. 3) and that in relation to the other participants in the meetings the agreements stemmed from "a sufficiently detailed plan to amount to an 'agreement' or 'agreements' under Article 85" (p. 4).

61 The Court observes that the passages in the Decision which are criticized by the applicant correspond in their content to the objections made by the Commission in relation to the applicant and the other undertakings to which the Decision is addressed in the statements of objections which were sent to them.

62 Contrary to the assertions of the applicant, the Decision does not simply state baldly in point 81 that the undertakings in question "participated in an overall framework agreement which was manifested in a series of more detailed sub-agreements worked out from time to time" and that this was thus "a single continuing 'agreement' within the meaning of Article 85(1)", since the first of those phrases is preceded by the words "In the present case the producers, by subscribing to a common plan to regulate prices and supply in the polypropylene market ..." and the second is introduced by the words "The Commission considers that the whole complex of schemes and arrangements decided in the context of a system of regular and institutionalised meetings constituted ...". It follows that in the Decision the terms "framework agreement" and "single continuing 'agreement' " are merely means of expressing the fact that the Commission found the undertakings to which the Decision was addressed guilty of a single infringement whose various elements made up an integrated complex of systems of regular meetings of polypropylene producers, of the fixing of price targets and quotas, which had a single economic purpose, namely to distort the normal movement of prices on the polypropylene market.

63 That is precisely the purport of the whole of the main statement of objections sent to the applicant and to the other undertakings to which the Decision was addressed, in particular points 1, 5, 128, 132 and 151(a). For example, point 1 is worded as follows:

"The present statement of objections concerns the application of Article 85(1) of the EEC Treaty to a complex of arrangements and/or concerted practices by which from about 1977 to October 1983 the producers supplying the bulk thermoplastic polypropylene in the Common Market co-ordinated their sales and pricing policy on a continuing and regular basis by setting and implementing 'target' and/or minimum prices, controlling the tonnages supplied to the market by means of agreed 'targets' and/or quotas and meeting regularly in order to monitor the progress of the said restrictive arrangements."

The last sentence of point 132 states:

"Effectively the producers were aiming to control the market and a continuing and institutionalised co-operation at a high level was substituted for the normal play of competitive forces."

64 It should be added that tenor of the objections made in relation to the applicant and the other undertakings to which the Decision was addressed is confirmed by the letter which was sent to them on 29 March 1985, which states at page 4 that "Such arrangements constituted a sufficiently detailed plan to amount to an 'agreement' or 'agreements' under Article 85, at least as far as the producers involved in the meetings were concerned."

65 Consequently, the Court considers that in its Decision the Commission merely re-drafted and clarified from the point of view of the law the arguments on which it bases the objections which it has maintained and therefore has not prevented the applicant from stating its position on the objections before the Decision was adopted.

66 It follows that the applicant is wrong to accuse the Commission of having infringed the rights of the defence by raising new objections against it in the Decision.

5. Failure to transmit the minutes of the hearings

67 The applicant argues that its right to be heard was infringed inasmuch as it is not disputed that neither the members of the Advisory Committee nor the members of the Commission had the minutes of the hearings when they made their decisions. They were thus able to base their view of the case only on drafts which often gave a very incomplete account of the statements made by the undertakings.

68 As regards the members of the Advisory Committee, the Commission' s argument that the Member States were represented at the hearings is unfounded. First of all, two Member States were not represented at one session of the hearings; furthermore, the persons who represent the Member States at hearings and their representatives on the Advisory Committee are not necessarily the same; finally, even where the representatives are the same, they must be able to check whether their recollection of the undertakings' arguments is correct.

69 As regards the members of the Commission, it was difficult for them to grasp the relevant arguments put forward by the parties since they were obliged to read the initial draft minutes and the amendments requested by the undertakings together.

70 The Commission replies that Article 9(4) of Regulation No 99/63 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 1963-64, p. 47) does not state within what period the minutes must be approved by the undertakings or to which bodies the Commission must provide the provisional or final minutes of hearings.

71 It adds that the changes to the draft minutes requested by the applicant were insignificant and that the Decision would not have been different even if the final version of the minutes of the hearings had been provided to the members of the Advisory Committee and of the Commission; accordingly, if there was a procedural irregularity, it was not one which calls for consideration by the Court (judgment of the Court of Justice in Case 30/78 Distillers Company v Commission [1980] ECR 2229, paragraph 26).

72 As regards the Advisory Committee, the Commission observes that it is true that its members had only the provisional minutes, but that the Member States were represented at the hearings, with the exception of Greece and Luxembourg, which did not take part in the second session. For the authorities of the Member States, the minutes thus serve merely as a memory aid. It matters little in that regard that the official present at the hearings was not necessarily the State' s representative on the Advisory Committee.

73 As for the members of the Commission, they had available to them not only the provisional minutes of the hearings but also the remarks made by the parties in regard to them.

74 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 in Case 44/69 Buchler & Co v Commission [1970] ECR 733, paragraph 17).

75 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.

76 As regards the provisional minutes forwarded to the Advisory Committee, it may be observed that the applicant has not stated in what respect those minutes were not a faithful and correct record of the hearings, and it has therefore not shown that the document in question was drawn up in such a way as to mislead the members of the Advisory Committee on an essential issue.

77 It follows that this ground of challenge must be dismissed.

6. Non-disclosure of the hearing officer' s report

78 The applicant contends that since it was unable to obtain the hearing officer' s report, despite the request to this effect which it made to the Commission, it cannot ascertain whether he included matters relating to the applicant in his report other than those contained in the minutes of the hearings. Nor, therefore, can it ascertain whether the Commission was aware of them and whether it made use of any exculpatory statements which may have been submitted to it by the hearing officer. The Court should order the Commission to produce the report.

79 In the Commission' s view, it is apparent from the hearing officer' s terms of reference that he plays an important role in the internal decision-making process of the Commission, a process in which undertakings cannot seek to be involved. There is no provision requiring the opinion of the hearing officer to be divulged. His independence and ability to state his views candidly would be imperilled if the report was required to be divulged. Furthermore, the Court of Justice dismissed an application by ICI (order of 11 December 1986 in Case 212/86 R ICI v Commission, not published in the Reports of Cases, paragraphs 5 to 8) for production of the report.

80 This Court notes first of all that the relevant provisions of the hearing officer' s terms of reference, which are appended to the Thirteenth Report on Competition Policy, are as follows:

"Article 2

The Hearing Officer shall ensure that the hearing is properly conducted and thus contribute to the objectivity of the hearing itself and of any decision taken subsequently. He shall seek to ensure in particular that in the preparation of draft Commission decisions in competition cases due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned.

In performing his duties he shall see to it that the rights of the defence are respected, while taking account of the need for effective application of the competition rules in accordance with the regulations in force and the principles laid down by the Court of Justice.

Article 5

The Hearing Officer shall report to the Director-General for Competition on the hearing and the conclusions he draws from it. He may make observations on the further progress of the proceedings. Such observations may relate among other things to the need for further information, the withdrawal of certain objections, or the formulation of further objections.

Article 6

In performing the duties defined in Article 2 above, the Hearing Officer may, if he deems it appropriate, refer his observations direct to the Member of the Commission with special responsibility for competition, at the time when the preliminary draft decision is submitted to the latter for reference to the Advisory Committee on Restrictive Practices and Dominant Positions.

Article 7

Where appropriate, the Member of the Commission with special responsibility for competition may decide, at the Hearing Officer' s request, to attach the Hearing Officer' s final report to the draft decision submitted to the Commission, in order to ensure that when it reaches a decision on an individual case it is fully apprised of all relevant information."

81 It is clear from the very wording of the hearing officer' s terms of reference that it is not mandatory for his report to be passed on to either the Advisory Committee or the Commission. There is no provision which provides for the report to be forwarded to the Advisory Committee. Although it is true that the hearing officer must report to the Director-General for Competition (Article 5) and that he may, if he deems it appropriate, refer his observations direct to the Member of the Commission with special responsibility for competition (Article 6), who himself may, at the hearing officer' s request, attach the hearing officer' s final report to the draft decision submitted to the Commission (Article 7), there is no provision requiring the hearing officer, the Director-General for Competition or the Member of the Commission with special responsibility for competition to forward the hearing officer' s report to the Commission.

82 Consequently, the applicant cannot rely on the fact that the hearing officer' s report was not provided to the members of the Advisory Committee or of the Commission.

83 Furthermore, the Court holds that the rights of the defence do not require that undertakings involved in proceedings under Article 85(1) of the EEC Treaty should be able to comment on the hearing officer' s report, which is a purely internal Commission document. On this question the Court of Justice has held that the hearing officer' s report is in the nature of an opinion for the Commission, which is in no way bound to follow it, and that the report does not therefore constitute a decisive factor which must be taken into account by the Community court in performing its judicial review (order of 11 December 1986 in Case 212/86 R, cited above, paragraphs 5 to 8). Respect for the rights of the defence is ensured to the requisite legal standard if the various bodies involved in drawing up the final decision have been properly informed of the arguments put forward by the undertakings in response to the objections notified to them by the Commission and to the evidence presented by the Commission in support of those objections (judgment of the Court of Justice in Case 322/81 Nederlandsche Banden-Industrie-Michelin NV v Commission, cited above, paragraph 7).

84 It is to be noted in this regard that the purpose of the hearing officer' s report is neither to supplement or correct the undertakings' arguments nor to set forth fresh objections or adduce fresh evidence against the undertakings. GROUNDS CONTINUED UNDER DOC.NUM : 689A0015.1

85 It follows that respect for the rights of the defence does not give the undertakings the right to demand disclosure of the hearing officer' s report so as to be able to comment upon it (see the judgment of the Court of Justice in Joined Cases 43 and 63/82 VBVB and VBBB v Commission, cited above, paragraph 25).

86 Consequently, this ground of challenge must be dismissed.

Proof of the infringement

87 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.

88 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

89 The Decision (point 17, fourth paragraph; point 78, third paragraph; and point 104, second paragraph) accuses the applicant of having stated, like Hercules, Hoechst, ICI, Rhône-Poulenc, Saga and Solvay, that it would be supporting the announcement made by Monte in an article appearing in the trade press (European Chemical News, hereinafter referred to as "ECN") on 18 November 1977 of its intention to raise the price of 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, show that the DM 1.30/kg level set by Monte had been accepted by the other producers as a general industry "target".

90 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.

91 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.

92 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

93 The applicant submits that the Commission cannot rely on the note of the EATP meeting on 22 November 1977 (main statement of objections, Appendix 6) in order to prove the existence of a price agreement at the end of 1977. All that that document proves is that neither the price of DM 1.30/kg nor the word "objective" cited by the Commission in quotation marks appears in that note. None of the statements made by the participants in that meeting provide the slightest evidence of any previous contact between the producers. The cooperation in question is quite unambiguously cooperation between producers and customers.

94 It points out that the statement made by its representative shows very clearly that it had learned only the previous day of Monte' s decision to raise prices, that he did not yet know the exact amount and that the applicant was forced, in view of its disastrous income situation, to follow the price increase decided on by the market leader.

95 The applicant goes on to state that concerted action on a price increase cannot be inferred from the note of the EATP meeting since the increase had already been announced publicly by Monte. Moreover, the fact that the producers expressed similar views on market trends cannot be taken as evidence of collusion, since those trends were the same for all the producers.

96 The Commission states that its finding that Linz began to take part in the cartel in November 1977 is based on the fact that it supported the initiative of a price increase from December 1977 announced publicly by Monte. That initiative and the support which it enjoyed constituted concerted action, not parallel conduct due to chance or to market forces. The note of the EATP meeting of 22 November 1977 shows that the price for raffia of DM 1.30/kg announced by Monte had already been accepted as a common target price, since it reports the following statement by Linz:

"Just yesterday we learnt that one of the important European polymer PP suppliers had already announced in the European Chemical News an increase in his PP polymer prices as from 1st December. At the present time, I do not know exactly how much his price increase will be, but I am hoping this price increase can and will be accepted by his customers. CHEMIE LINZ will have to follow these new prices to be in a better position to give all their customers in all applications all the supplies they require, including help in developing new and additional applications for PP polymers."

97 The Commission adds that if it is borne in mind that the first contacts between producers had already been made when the announcement was made publicly it is not credible that Linz adhered to the initiative without having had prior contacts.

98 As indirect support for its view that there must have been contacts between producers before the EATP meeting of 22 November 1977 the Commission refers to a note (main statement of objections, Appendix 2) of a telephone conversation between a Hercules employee and an employee of one of the "big four", since what is true of Hercules applies by analogy to all the others, including Linz.

99 At the hearing, the Commission stated that the purpose of the parallel statements by various producers at the EATP meeting on 22 November 1977 was to present their customers with a united front and convince them of the inevitability of a price increase in the area of that announced by Monte.

(c) Assessment by the Court

100 The Court finds that the statements made by the applicant at the EATP meeting on 22 November 1977 (main statement of objections, Appendix 6) constitute both the expression of general support for the policy of increased prices initiated by Monte and a precise indication intended for its competitors of the conduct which it had decided to pursue on the market. Those findings are confirmed by the note of the following meeting of EATP on 26 May 1978 (main statement of objections, Appendix 7), which the applicant did not attend; it reports the producers' assessments of the results obtained on the market following the meeting of 22 November 1977. The fact that the Commission acknowledged at the hearing that apart from the EATP meeting of 22 November 1977 it had no direct proof of the existence of contacts between Linz and the other producers does not undermine those findings.

101 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 increased prices initiated by Monte (Decision, point 17, fourth paragraph, first sentence, and point 78, third paragraph, second sentence) and that it gave them a precise indication of the conduct which it had decided to pursue on the market.

B. The system of regular meetings

(a) The contested decision

102 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") (ICI' s reply to the request for information under Article 11 of Regulation No 17, main statement of objections, Appendix 8). The Decision asserts that the applicant was a regular participant at those meetings until at least the end of September 1983 (point 105, fourth paragraph).

103 In point 21 the Decision states that the purposes of these regular meetings of polypropylene producers were, in particular, the setting of target prices and sales volumes and the monitoring of their observance by the producers.

(b) Arguments of the parties

104 The applicant submits that the Commission has not demonstrated its participation in a framework agreement establishing an institutionalized system of regular meetings covering the whole of the period, since it has not proved that the polypropylene producers agreed in 1977, by mutual and concordant statements of intention, to meet regularly in order to examine and determine their sales policy. The Commission itself acknowledges that the meetings of polypropylene producers only gradually became structured (Decision, point 18).

105 According to the applicant, it was only from 1982 onwards that meetings were held more or less regularly. It cannot be inferred from that that a system of meetings had been established by common accord five years previously. The meetings were in fact informal.

106 It states that in any event its participation in the meetings is proved only from the beginning of 1981 and that it could not therefore have taken part in the alleged framework agreement, whose existence, it points out once more, was alleged for the first time in the Decision.

107 The applicant can no longer identify the date on which it took part for the first time in the producers' meetings. It asserts that it did not take part from the beginning and points out that the earliest evidence of its presence at a meeting is at the beginning of 1981 (main statement of objections, Appendix 17). It concludes that it cannot be held responsible in any way for the events prior to that date.

108 It states that the purpose of the meetings was to discuss in detail the market situation, in order solely to gather information. The discussions concerned the prices and sales volumes of each participant and their future objectives.

109 The applicant explains that in view of the market situation all the suppliers had an interest in the market being very transparent. That need for information was particularly acute on the part of the applicant, which was arriving from a non-member country on a largely unknown market. It was obliged to gather as much information as possible on that market and, in particular, to participate in discussions between producers on the situation on that market. Consequently, it states that if it took part in the meetings it was only in order not to leave its competitors unobserved and to obtain important information on the market.

110 It states that no legal or moral commitment as to their conduct on the market was expected of participants or made by them. As evidence of this it cites the fact that although the objectives alleged to have been pursued were not achieved, the Commission has not been able to point to a single case of remonstrations directed at a participant whose conduct had not matched its statements.

111 The applicant asserts that it determined its conduct on the market itself, independently, and states that it was quite natural for it to use information gathered at meetings in drawing up price instructions issued to its sales departments. It used that information in the same way as any other information obtained by studying the market or by reading the trade press.

112 The Commission points out that the applicant took part in the price initiatives from November 1977 onwards and that ICI stated in its reply to the request for information (main statement of objections, Appendix 8) that the producers met for the first time in December 1977 to coordinate their sales strategies and that it was agreed to hold further meetings, first on an ad hoc basis and later in a more structured form.

113 According to the Commission, the framework agreement was implemented by the establishment of a system of institutionalized meetings held to discuss the sales strategies of the various producers. That agreement was reinforced by specific agreements concerning concrete measures on prices and, in some cases, agreements on quotas or by a system of "account leadership".

114 It disputes the assertion that Linz took part in the meetings only from 1981 onwards, and puts forward two pieces of evidence in that regard. First, in ICI' s reply to the request for information it included Linz among the regular participants in the meetings without any qualification as regards time (unlike Anic and Rhône-Poulenc, for example, which, according to ICI, took part only during a specific period, or Hercules, which took part only irregularly in the meetings) and states that the meetings began in December 1977. Secondly, an undated table headed "Producers' Sales to West Europe", found at the premises of ICI (main statement of objections, Appendix 55), sets out for all the polypropylene producers of western Europe the sale figures in kilotonnes for 1976, 1977 and 1978 and figures under the headings "1979 actual" and "revised target". Since that table contains information which must be kept strictly secret as confidential business information it could not have been drawn up without Linz' s participation.

115 According to the Commission, the fact that regular participants in the meetings may occasionally have been absent does not mean that they cannot be considered to have been parties to all the agreements, having regard to the permanent nature of the collusion on prices and to the fact that the price initiatives generally stretched over several months.

116 As regards the purpose of the meetings, it disputes the assertion that the meetings served only for the exchange of information and that neither Linz nor the other producers intended to govern their conduct on the market according to the decisions adopted. In reality, the producers implemented the decisions made at meetings through their regular price instructions, which is sufficient proof of their intention to be bound, expressed also in the various notes of meetings.

117 The Commission states that in the case of Linz a note found at the premises of its subsidiary in Munich (main statement of objections, Appendix 21) shows quite unambiguously what it hoped to gain from its regular contacts with its competitors. In that regard the Commission asks why the undertakings would have continued to meet regularly for several years and calculate polypropylene prices to the last decimal in all European currencies if the sole purpose was to gather information, without anything to depend on and without making any commitments.

118 Finally, it states that the applicant' s assertion to the effect that there was no criticism of participants in the meetings which failed to live up to the agreed objectives is contradicted by several pieces of evidence, such as ICI' s reply to the request for information, various notes of meetings which refer to criticism, such as those of the meetings of 21 September and 2 December 1982 (main statement of objections, Appendices 30 and 33), or an ICI note from 1981 (main statement of objections, Appendix 64) which refers to the need to put pressure on certain producers.

(c) Assessment by the Court

119 The Court observes that ICI' s reply to the request for information (main statement of objections, Appendix 8) includes the applicant, unlike two other producers, among the regular participants in the "bosses' " and experts' " meetings. That reply must be interpreted as meaning that the applicant participated in meetings from the beginning of the system of "bosses' " and "experts' " meetings, which was instituted in late 1978 or early 1979.

120 ICI' s reply to the request for information is corroborated on this point by the mention, next to the applicant' s name, in various tables found at the premises of ICI and ATO (main statement of objections, Appendices 55 to 61), of its sales figures for various months and years. Most of the applicants admitted in their replies to a written question put by the Court that the tables found at the premises of ICI, ATO and Hercules could not have been drawn up on the basis of statistics from the FIDES data exchange system. Indeed, in its reply to the request for information ICI stated in relation to one of the tables that "the source of information for actual historic figures in this table would have been the producers themselves". Moreover, during the proceedings before the Court the applicant, in the face of that strong evidence, never specifically denied having been present at the meetings, which it does not deny took place.

121 On the question whether the applicant participated in the meetings in 1978 the Court observes that it is apparent from point 18 of the Decision read together with the specific objections addressed to Linz that the applicant is accused of having participated in them.

122 The applicant states in its application that "although the Commission asserts that there were six meetings in 1978, it gives no indication of the place, the date, the participants or the subject-matter of the discussions, and provides no evidence of those meetings. The applicant knows nothing of such meetings."

123 The Court notes that, rather than denying having taken part in the meetings in 1978 the applicant thus argues that the Commission has no evidence concerning them and that it itself has no information in that regard.

124 The fact that producers' meetings were held in 1978 is shown by ICI' s reply to the request for information, which states that "During the first year (1978) about six ad hoc meetings took place at about two monthly intervals between the Senior Managers responsible for the polypropylene business of some producers". That reply also indicates that those meetings began in about December 1977 ("Because of the problems facing the polypropylene industry ..., a group of producers met in about December 1977 to discuss what, if any, measures could be pursued in order to reduce the burden of the inevitable heavy losses about to be incurred by them"), that is to say immediately after the EATP meeting of 22 November 1977 in which Linz participated.

125 In the face of that evidence the applicant did not deny its participation in those meetings, but stated in its reply that:

"Assuming those assertions [those contained in ICI' s reply to the request for information] to be correct, they do not justify the conclusion that there was a general framework agreement from the outset."

126 The Court further observes that the meetings held in 1978 had the same purpose as the EATP meetings, namely to discuss measures to be taken in order to stifle the losses incurred by the polypropylene producers. ICI' s reply to the request for information states:

"It was felt to be essential for producers to consider appropriate means of alleviating this impending crisis which could, unless controlled in some way, lead eventually to the collapse of the polypropylene industry. It was proposed that future meetings of those producers who wished to attend should be called on an 'ad hoc' basis in order to exchange and develop ideas to tackle those problems .... Generally speaking, however, the concept of recommending 'Target Prices' was developed during the early meetings which took place in 1978 ...".

127 At the EATP meeting on 22 November 1977 the producers indicated that prices were too low and that they could not tolerate them indefinitely. Linz made the following statement:

"We are sure that you all know the current low PP price level and we do hope also that you know that such a price level is far below the level needed to break even. There has been no reasonable return for PP polymer products for too long a period and we at CHEMIE LINZ do not and cannot believe that Polymer manufacturers can and will accept such an extremely low price level any longer."

The producers also stressed the need to increase prices and supported Monte' s announcement of a price increase.

128 Consequently, the Court considers that the meetings held in 1978 and subsequent years were a continuation for the producers of their statements at the EATP meeting on 22 November 1977.

129 It must also be pointed out that ICI' s reply to the request for information shows that those meetings were the point of departure, in terms both of their organization and their purpose, for the system of "bosses' " and "experts' " meetings in which the applicant participated from the end of 1978 or the beginning of 1799 onwards. That reply states that:

"By late 1978/early 1979 it was determined that the 'ad hoc' meetings of Senior Managers [' Bosses' ][of 1978] should be supplemented by meetings of lower level managers with more marketing knowledge [' Experts' ]."

and it should be recalled that the idea of recommending target prices, implemented through the system of "bosses' " and "experts' " meetings, was developed during the 1978 meetings.

130 Consequently, the Court finds that since the applicant participated in both the EATP meeting of 22 November 1977 and the system of "bosses' " and "experts' " meetings the Commission was entitled to take the view that the applicant had participated in the meetings in 1978 which constituted for the producers a continuation of their statements made at the meeting of 22 November 1977 and enabled them to institute the system of "bosses' " and "experts' " meetings.

131 The Court considers that the Commission was fully entitled to take the view, based on the information which was provided by ICI in its reply to the request for information and was borne out by numerous meeting notes, that the purpose of the meetings was, in particular, to fix 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."

132 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.

133 Besides the passages set forth above, 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.

134 In the face of that evidence the applicant asserts that its conduct was not anti-competitive in spirit. It should be observed in that regard that since it has been established that the applicant took part in those meetings and that their purpose was, in particular, to fix of price and sales volume targets, the applicant at least gave its competitors the impression that it was participating in the meetings in the same spirit as they.

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

136 The applicant' s arguments, which are based on its conduct on the market and seek to show that it took part in the meetings solely in order to obtain information, do not constitute evidence of such a kind as to prove that it had no anti-competitive intention, since that evidence does not show that the applicant indicated to its competitors that its conduct on the market would not be governed by what occurred at the meetings. Even if its competitors had known that, the mere fact that it exchanged information which an independent business would keep strictly secret as confidential business information is sufficient to demonstrate that it had an anti-competitive intention.

137 It should be added that, contrary to the applicant' s assertions, the notes of the meetings show that criticism was expressed of producers whose conduct was considered by the participants not to be consistent with the outcome of the meetings. For example, the note of the meeting of 21 September 1982 (main statement of objections, Appendix 30) states that:

"Anic were seen as a problem in September ... Pressure was needed + Z was asked to get M to speak to C. Sales to Italy were a potential problem + pressure was needed on Shell Italy to restrain themselves to the agreed levels for October."

and that of the meeting of 2 December 1982 (main statement of objections, Appendix 33) states: "Hercules said that they would not attend in future in view of criticism from the Dutch + Germans".

138 It follows that the Commission has established to the requisite legal standard that the applicant participated regularly in the regular meetings of polypropylene producers between the end of 1977 and September 1983, that the purpose of those meetings was, in particular, to set price and sales volume targets, that they were part of a system and that the applicant' s participation in those meetings was not free of an anti-competitive intention.

C. The price initiatives

(a) The contested decision

139 According to the Decision (points 28 to 51), a system for fixing price targets was implemented through price initiatives of which six 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.

140 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, including ICI, 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).

141 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).

142 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.

143 The Decision (point 33) then refers to Linz' s participation in one of the 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. The documents found at Linz' s premises show inter alia that it took steps to introduce the target prices set for February and March.

144 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.

145 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 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.

146 According to the Decision (point 36), the plan now was to move during September and October 1981 to a "base price" level of 2.20 to DM 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%.

147 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 in which Linz 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).

148 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.

149 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, since it was present at the majority if not all of the meetings held between July and November 1982 in which this initiative was planned and monitored (Decision, point 45). At the meeting on 20 August 1982, the increase planned for 1 September was postponed until 1 October, and that decision was confirmed at the meeting on 2 September 1982 (Decision, point 41).

150 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).

151 According to the Decision (point 44), at the meeting on 21 September 1982, in which the applicant participated, 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.

152 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).

153 Like ATO, BASF, DSM, Hercules, Hoechst, Huels, ICI, Monte and Saga, the applicant supplied the Commission with price instructions issued to its 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 (Decision, point 45, second paragraph).

154 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.

155 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, including Linz, reaffirmed complete commitment to the DM 1.85/kg increase. On that occasion, it was agreed that Shell would lead publicly in ECN.

156 The Decision (point 49) states that after the meeting of 20 May 1983, ICI, DSM, BASF, Hoechst, Linz, Shell, Hercules, ATO, Petrofina and Solvay issued instructions to their sales offices to apply from 1 July a price table based on DM 1.85/kg for raffia. It goes on to state that only fragmented price instructions were obtained from ATO and Petrofina but these confirmed that these producers were implementing the new price levels, somewhat belatedly in the case of Petrofina and Solvay. 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.

157 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 ba