Judgment of the Court of First Instance (First Chamber) of 17 December 1991. - BASF AG v Commission of the European Communities. - Competition - Concepts of agreement and concerted practice - Collective responsibility. - Case T-4/89.



European Court reports 1991 Page II-01523



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

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

(EEC Treaty, Art. 85(1) )

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

(Commission Regulation No 99/63)

3. Competition - 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 - No

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

(EEC Treaty, Art. 85(1) )

5. 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)

6. 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 formation of the participants' marketing strategy

(EEC Treaty, Art. 85(1) )

7. 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) )

Summary

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

2. The provisional nature of the minutes of the hearing submitted to the Advisory Committee on Restrictive Practices and Dominant Positions and to the Commission can 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.

3. 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 undertakings' arguments nor to set forth fresh objections or adduce fresh evidence against the undertakings.

4. 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.

5. 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.

6. 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 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.

7. 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.

Parties

In Case T-4/89,

BASF Aktiengesellschaft, a company incorporated under German law, having its registered office at Ludwigshafen (Federal Republic of Germany), represented by F. Hermanns and U.F. Kleier, Rechtsanwaelte, Cologne, with an address for service in Luxembourg at the Chambers of Messrs Loesch & Wolter, 8 rue Zithe,

applicant,

v

Commission of the European Communities, represented by Anthony McClellan, Principal Legal Adviser, and B. Jansen, a member of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of R. Hayder, a national civil servant seconded to 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 (which became 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 S.A. 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 N.V. in Belgium, ATO Chimie S.A. and Solvay et Cie S.A. in France, SIR in Italy, DSM N.V. in the Netherlands and Taqsa in Spain. Saga Petrokjemi AS & Co, a Norwegian producer, came on stream in the middle of 1978, and Petrofina S.A. in 1980. The arrival of the new producers, with nameplate capacity of some 480 000 tonnes, brought a substantial increase in installed capacity in western Europe which for several years was not matched by the increase in demand in that market. This led to low rates of utilization of production capacity, which, however, rose progressively between 1977 and 1983, increasing from 60% to 90%. According to the Decision, supply and demand were roughly in balance from 1982. However, during most of the period covered by the investigation (1977-1983), the polypropylene market was reported to be characterized by either low profitability or substantial losses, owing in particular to the extent of the fixed costs and to the increase in the cost of the raw material, propylene. According to the Decision (point 8), in 1983 Montepolimeri SpA held 18% of the European polypropylene market, Imperial Chemical Industries PLC, Shell International Chemical Company Limited and Hoechst AG each held 11%, Hercules Chemicals N.V. slightly below 6%, ATO Chimie S.A., BASF AG, DSM N.V., Chemische Werke Huels, Chemie Linz AG, Solvay et Cie S.A. and Saga Petrokjemi AS & Co from 3 to 5% and Petrofina S.A. about 2%. The Decision states that there was a substantial trade in polypropylene between Member States because each of the then EEC producers supplied the product in most, if not all, Member States.

3 BASF AG was one of the producers which was supplying the market before 1977. Its position on the polypropylene market was that of a medium-sized producer whose market share was between 4.1 and 4.7%.

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 S.A., now Atochem ("ATO"),

BASF AG ("BASF"),

DSM N.V. ("DSM"),

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

Hoechst AG ("Hoechst"),

Chemische Werke Huels ("Huels"),

Imperial Chemical Industries PLC ("ICI"),

Montepolimeri SpA, now Montedipe ("Monte"),

Shell International Chemical Company Limited ("Shell"),

Solvay et Cie S.A. ("Solvay"),

BP Chimie ("BP").

No investigations were carried out at the premises of Rhône-Poulenc S.A. ("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 S.A. ("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' s officials then carried out investigations at the premises of Anic and Saga Petrochemicals UK Ltd, the United Kingdom subsidiary of Saga, and of the selling agents of Linz established in the United Kingdom and in the Federal Republic of Germany. No request for information was sent to Rhône-Poulenc.

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

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

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

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

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

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

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

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

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

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

"Article 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 2

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

Article 3

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

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

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

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

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

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

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

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

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

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

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

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

(xii) Rhône-Poulenc S.A., 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 28 July 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-3/89 and T-6/89 to T-15/89).

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

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

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

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

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

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

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

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

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

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

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

FORMS OF ORDER SOUGHT BY THE PARTIES

29 BASF AG claims that the Court should:

(i) annul the Commission decision of 23 April 1986, notified on 28 May 1986, relating to a proceeding under Article 85 of the EEC Treaty (IV/31.149 - Polypropylene);

(ii) in the alternative, annul or reduce the fine imposed on the applicant under Article 3 of that decision; and

(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 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 (1) it failed to disclose to the applicant documents on which it based the Decision, (2) the final record of the hearings was not transmitted to the Members of the Commission or to the Advisory Committee and (3) it did not communicate to the applicant the hearing officer' s report; 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) imputed collective responsibility to the applicant; and thirdly, the grounds of challenge relating to the determination of the fine, which is alleged to be (1) disproportionate to the duration of the alleged infringement and (2) disproportionate to the gravity of the alleged infringement.

THE RIGHTS OF THE DEFENCE

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

31 The applicant contends that when the Commission notified it of the statement of objections it did not send it 14 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 notes of the meeting of 10 March 1982 and that of 13 May 1982 drawn up by a Hercules employee (Decision, point 15(b) ), a document dated 6 September 1977 allegedly found at the premises of Solvay (Decision, point 16, penultimate paragraph), Shell' s reply to the statement of objections (Decision, point 17), 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), 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), a document on market sharing found at the premises of ATO (Decision, point 54), the note of the meeting of 10 March 1982 drawn up by an ICI employee (Decision, point 58), an undated ICI note intended as a briefing for a meeting with Shell in or about May 1983 (Decision, point 63, second paragraph) and, finally, a planning document relating to the first quarter of 1983 found at the premises of Shell (Decision, point 63, third paragraph).

32 The applicant maintains that according to the case-law of the Court of Justice (judgment in Case 107/82 AEG-Telefunken v Commission [1983] ECR 3151, paragraphs 21 to 30) the Commission cannot, without infringing the rights of the defence, rely on such documents, even if they are to be found somewhere in the administrative file which was made available to the undertakings in question. There is every reason to suppose that in the absence of the objections which those documents are said to prove the Decision would not have been adopted in its present form.

33 In reply to the Commission' s assertion that the Decision was not based on those few documents that were not provided to BASF, the applicant states that precisely because it does not have those documents it is not in a position to dispute that assertion, and it is therefore for the Commission to show in detail that it is well founded.

34 The Commission replies that, contrary to the applicant' s contention, the first and ninth document which it cites were disclosed with the statement of objections and the second, tenth and thirteenth documents were made available to it during the access-to-file procedure; there was no need to make the other documents available to the applicant, either because they were of no relevance to the proceedings against it or because they merely confirmed other documents of which BASF was already aware. In so far as it is addressed to the applicant, the Decision is not based on those documents.

35 It acknowledges that as the result of an error an ICI note concerning an "experts' " meeting of 10 March 1982, mentioned in the Decision (point 58), was not disclosed but states that that note merely confirmed a note drawn up by Hercules of the same meeting which was attached to the main statement of objections (Appendix 23). The same is true of an ICI note mentioned in point 63 of the Decision which was intended as a briefing for a meeting with Shell. That document was cited only as proof of Shell' s participation in the quota system. Those documents thus contain no new material in relation to the objections communicated to BASF.

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, cited above, paragraph 27, and see most recently the judgment of 3 July 1991 in Case C-62/86 AKZO Chemie v Commission, not yet published in the Reports of Cases before the Court, at paragraph 21).

37 In this instance, only the documents mentioned in the main or specific statements of objections or in the letters 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 note of the meeting of 10 March 1982 drawn up by a Hercules employee (Decision, point 15 b) and the ICI internal note on the "firm climate" (Decision, point 46) may be used as evidence against the applicant, since they were mentioned in points 60 and 71 respectively of the main statement of objections addressed to the applicant, of which they also form Appendices 23 and 35. 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. Failure to transmit the minutes of the hearings

40 The applicant states that under 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) "the essential content of the statements made by each person shall be recorded in minutes which shall be read and approved by him". According to BASF, neither the members of the Commission nor the Advisory Committee were provided with the final version of the minutes of the hearings. They were thus unable to form a correct idea of the arguments exchanged, since they had not all attended the hearings and could not study all the written submissions of the undertakings concerned. The Decision was therefore not adopted with full knowledge of all relevant information.

41 The applicant adds that it is not in a position to ascertain whether the Decision would have been different had the members of the Commission had the final version of the minutes available to them. Even if it would not, says the applicant, that should not be decisive, since to hold that infringements of procedural guarantees could be justified by the fact that the Decision would have been no different had they been observed would be to disregard the real import of those guarantees. It lies in the fact that interested parties have a right to the observance of those guarantees, subject to annulment of the decision. It can at most be accepted that the onus should be on the Commission to prove that the procedural defect had no influence on the decision. A simple assertion on the part of the Commission cannot suffice.

42 The Commission observes that Article 9(4) of Regulation No 99/63 gives no indication as to the bodies to which the Commission must provide the provisional or final minutes of hearings. It is true that the members of the Advisory Committee had only the provisional minutes, but the competent authorities of all the Member States were represented at the hearings, with the exception of Greece and Luxembourg at the second session. It matters little in that regard that the official present at the hearings was not necessarily the State' s representative on the Advisory Committee. Moreover, the Commission notes that BASF has not denied that the provisional version of the minutes gave an accurate account of the essential statements of the parties.

43 The Commission states that in adopting their decision the members of the Commission had available to them the provisional minutes of the hearings and all the remarks made by the parties in regard to them.

44 In any event, the Commission considers that the Decision would not have been different if the final version of the minutes of the hearings had been available (judgment of the Court of Justice in Case 30/78 Distillers Company v Commission [1980] ECR 2229, paragraph 26).

45 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).

46 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.

47 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.

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

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

49 In its application the applicant contended that the hearing officer' s report should have been made available to the agents of the undertakings; in its reply, however, it acknowledges the order of 11 December 1986 (Case 212/86 R ICI v Commission, not published in the Reports of Cases before the Court, paragraphs 5 to 8) in which the Court of Justice held that the parties were not entitled to receive the hearing officer' s report and states that it is not necessary to consider this issue again.

50 According to the Commission, there is no provision requiring the opinion of the hearing officer to be provided to the addressees of the Commission' s decision. It takes the view that the hearing officer plays an important role in the internal decision-making process of the Commission and that undertakings cannot seek to be involved in that process without imperilling the independence of the hearing officer and his ability to state his views candidly.

51 This 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 N.V. v Commission [1983] ECR 3461, paragraph 7 at p. 3498).

52 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 but to express the opinion of a Commission official with a view to the adoption of a decision by the Commission. 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 Vereniging ter Bevordering van het Vlaamse Boekwezen, VBVB, and Vereniging ter Bevordering van de Belangen des Boekhandels, VBBB v Commission [1984] ECR 19, paragraph 25 at p. 58).

53 Consequently, this ground of challenge must be dismissed.

PROOF OF THE INFRINGEMENT

54 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.

59 It is therefore necessary to verify first of all whether the Commission has established to the requisite legal standard its findings of fact as regards (I) the period from 1977 to the end of 1978 or the beginning of 1979 and (II) the period from the end of 1978 or the beginning of 1979 to November 1983 concerning (A) the system of regular meetings, (B) the price initiatives, (C) the measures designed to facilitate the implementation of the price initiatives and (D) the fixing of target tonnages and quotas, taking into account (a) the contested decision, (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

I. The period from 1977 to the end of 1978 or the beginning of 1979

A. The contested decision

56 The Decision (point 78, fourth paragraph, and point 104, third paragraph) asserts that the system of regular meetings of polypropylene producers began at about the end of 1977 but that it is not possible to identify the precise date on which each individual producer began to attend. It states that BASF, one of the producers which are not proved to have "supported" the December 1977 price initiative, claims to have attended only "sporadically" before 1980 (the French text of the Decision has "from 1978" instead of "before 1980", as a result of a clerical error).

57 However, the Decision (point 105, first and second paragraphs) states that the precise date on which each producer began to attend regular plenary meetings cannot be established with certainty. The date on which Anic, ATO, BASF, DSM and Huels began to participate in the arrangements cannot have been later than 1979 since all these five producers are shown to have been involved in the market-sharing or quota systems which were first in force in that year.

B. Arguments of the parties

58 The applicant submits that the evidence put forward by the Commission is not sufficient to prove its participation in the meetings since December 1977. It considers that its participation in the meetings can be placed in issue in these proceedings only from the time at which its participation began to be regular. As is pointed out in point 81 of the Decision, there is an infringement of competition law only once an undertaking has begun to take part regularly in a "system of regular and institutionalized meetings".

59 The applicant states that it was present at the meetings on a regular basis only from June 1982, although it acknowledges having participated sporadically before 1 December 1980, a period in respect of which it has no recollection of the places and dates of meetings, and admits having participated in four specific meetings of the 19 which the Commission alleges to have been held between the beginning of 1981 and June 1982.

60 The applicant is concerned to show that the Commission has misquoted ICI' s reply to the request for information (main statement of objections, Appendix 8). It points out that with regard to the meetings held in 1978 ICI stated quite clearly that these were ad hoc meetings and not "regular" or "institutionalized" meetings; that ICI did not state that the applicant was present at those meetings and, finally, that it stated that it could provide the dates and locations of "bosses' " and "experts' " meetings only from 1 January 1980 onwards. The applicant considers that the passage in ICI' s reply to the request for information in which it describes it as a "regular participant" in the meetings is "essential" in so far as an undertaking can only be said to have been a regular participant if it took part in at least the majority of the meetings. It is apparent from BASF' s reply to the request for information (particular objections, BASF, Appendix 1) that that was not the case before June 1982.

61 In its reply, the applicant points out that the Commission has put forward no evidence to prove its participation in the meetings during the period in question and expresses surprise that the Commission has maintained its objections in respect of that period.

62 The Commission states that although it cannot precisely identify the date on which BASF began to participate in the meetings, it considers that it can place it with some certainty at an indefinite time between 1977 and 1979.

63 As evidence it puts forward the replies of the applicant and ICI to the requests for information sent to them. In the first, the applicant stated that "before 1 December 1980 representatives of our company participated in meetings of European polypropylene producers at irregular intervals. It is impossible for us to recall the dates and locations of these meetings." In the second, ICI numbered BASF among the regular participants in the meetings without any qualification as regards time (unlike Anic and Rhône-Poulenc, for example, which according to ICI participated only during a specific period, and unlike Hercules, which took part only irregularly in the meetings) and placed the beginning of those meetings in December 1977.

C. Assessment by the Court

64 The Court finds that the only evidence put forward by the Commission to prove BASF' s participation in the meetings during the period in question is the applicant' s reply to request for information (particular objections, BASF, Appendix 1) and ICI' s reply to the same request (main statement of objections, Appendix 8).

65 As regards the first reply, it may be observed that the reference to the period "before 1 December 1980" is not by itself sufficient to prove BASF' s participation in the meetings during the period now in question. Consequently, it must be determined whether ICI' s reply to the request for information corroborates the conclusions drawn by the Commission from the applicant' s reply on this point.

66 The Court observes that ICI' s reply to the request for information classifies the applicant among the regular participants in the "experts' " and "bosses' " meetings without indicating from what date. In that reply it is stated:

"The regular participants at meetings of 'Experts' and 'Bosses' were as follows: ATO, BASF, Chemie Linz, DSM, Hoechst, Huels, ICI, Montepolimeri, Petrofina, Saga, Solvay. The following producers participated regularly during those periods between 1979 and 1983 while they were engaged in the West European polypropylene industry: Anic - polypropylene business taken over by Montepolimeri; SIR - believed to be no longer in business; Rhône-Poulenc - polypropylene business sold to BP. In addition, Alcudia and Hercules attended meetings on an irregular basis."

67 Since it has no precise information regarding the beginning of the applicant' s participation in these meetings, The Commission refers to a second passage in ICI' s reply:

"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.... 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 these problems."

It infers from that passage that the applicant' s participation in the meetings began in December 1977. The Commission considers that that interpretation of ICI' s reply to the request for information is corroborated by the fact that if ICI stated the period during which the undertakings had participated in the meetings (1979-1983) only in respect of the undertakings named in the second sentence of the first passage quoted, it was in order to make it apparent that the undertakings named in the first sentence of that passage participated in the meetings from the start.

68 The Court observes that the passage in ICI' s reply to the request for information in which it classifies the applicant among the regular participants in the meetings expressly refers to its participation in "bosses' " and "experts' " meetings. The passage cited by the Commission in support of the assertion that the applicant participated in the meetings from December 1977 onwards concerns "ad hoc" meetings and not the "bosses' " and "experts' " meetings, in respect of which another passage in ICI' s reply to the request for information, in which it is stated:

"By late 1978/early 1979 it was determined that the 'ad hoc' meetings of Senior Managers should be supplemented by meetings of lower level managers with more marketing knowledge. This two-tier level of representation became identified as (a) 'Bosses' and 'Experts' ",

indicates that they began in late 1978 or early 1979 as a result of the addition of "experts' " meetings to the "ad hoc" "bosses' " meetings.

69 That interpretation of ICI' s reply to the request for information is confirmed if the first two sentences in the first passage quoted above are read on equal terms. Such a reading is justified by the fact that the distinction to be drawn between the undertakings mentioned in the first sentence and those mentioned in the second is not the beginning but the end of their participation in the meetings, since all the undertakings mentioned in the second sentence left the market before the end of the infringement. Those two sentences must therefore be interpreted in the light of each other, regard being had to the fact that the "bosses' " and "experts' " meetings did not begin before late 1978 or early 1979.

70 The Court should also point out that at the hearing the Commission admitted, first, that it had some doubts as to the date when BASF began to participate in the meetings, despite its reading of ICI' s reply to the request for information; secondly, that it is not sure that BASF took part in the meetings during the period in question and, finally, that that was why the Commission could not identify a specific date from which BASF participated in the infringement.

71 The Commission' s doubts may be seen in point 105, second paragraph, of the Decision, in which it is stated that the date on which the applicant began to participate in the arrangements cannot have been later than 1979.

72 It follows from the foregoing that the Commission cannot put forward any evidence to prove BASF' s participation in the infringement before the end of 1978 or the beginning of 1979 and that it has therefore not proved such participation to the requisite legal standard.

II. The period from the end of 1978 or the beginning of 1979 to November 1983

A. The system of regular meetings

(a) The contested decision

73 The Decision (point 78, fourth paragraph) states that BASF claims to have attended meetings only "sporadically" before 1980. It concludes (point 105, second paragraph) that the date on which BASF began to participate in the arrangements cannot have been later than 1979, since it is shown to have been involved in the market-sharing or quota systems which were first in force in that year.

74 The Decision (point 104, third paragraph, and point 105, second and fourth paragraphs) asserts that ICI has stated that BASF was a regular participant in the meetings and that the system of regular meetings of polypropylene producers continued until at least the end of September 1983. It finds that BASF participated in that system (point 18, first and third paragraphs).

75 According to the Decision (point 21), the purposes of the regular meetings of polypropylene producers included the fixing of price and sales volume targets and the monitoring of their observance by producers.

(b) Arguments of the parties

76 The applicant reiterates that only regular participation in the meetings can be regarded as constituting an infringement and that its presence at the meetings became regular only from June 1982, although it does acknowledge having attended meetings sporadically before 1 December 1980 and having attended four of the 19 meetings which the Commission alleges were held between the beginning of 1981 and June 1982.

77 It further maintains that the Commission has put forward no evidence to prove its participation in the meetings in the first half of 1979. It expresses surprise, therefore, that the Commission persists in its objections as regards that period and disputes the evidentiary value of the material put forward by the Commission in order to assert the contrary, that is to say the note of a meeting held on 26 and 27 September 1979 (main statement of objections, Appendix 12), a table headed "Producers' Sales to West Europe" (main statement of objections, Appendix 55) and the price instructions which preceded that meeting (letter of 29 March 1985, Appendix BASF).

78 In regard to that evidence the applicant argues first that the note of the meeting of 26 and 27 September 1979 does not mention its name and therefore does not establish its presence at that meeting. It further states that the table has no evidentiary value because it is not known for what purpose it was drawn up and whether producers other than ICI had access to it. Moreover, there is no indication that it was the result of collusion between producers or that BASF was aware of it. Finally, it maintains that the fact that its price instructions corresponded to those of other producers may be explained by the increase in the price of raw materials. It argues that the fact that there is a period of a month and a half separating the instructions given by the various producers is corroboration of their independent nature.

79 The applicant admits having participated regularly in the meetings from 9 June 1982 onwards.

80 The Commission states that there are several items of evidence showing the applicant' s participation in the meetings from the beginning of the period in question.

81 First of all, there are the replies of ICI and BASF to the request for information (main statement of objections, Appendix 8, and particular objections, BASF, Appendix 1, respectively). In the first of these, ICI asserts that the applicant was a regular participant in the meetings throughout the period in question, and in the second BASF acknowledged that "before 1 December 1980 representatives of our company participated in meetings of European polypropylene producers at irregular intervals. It is impossible for us to recall the dates and locations of these meetings." It may be inferred therefrom that BASF participated in the meetings from the beginning of the period under examination, even if it disputes the regularity of its participation in the meetings before December 1980.

82 Next, the Commission cites the identical nature of the price instructions issued by the applicant on 24 and 27 July 1979 and those issued by Monte, Shell, ICI, Hoechst, Linz and ATO for 1 September 1979 (letter of 29 March 1985, Appendix A). According to the Commission, such convergence cannot be explained by an increase in the price of raw materials and therefore proves the applicant' s participation in the meetings at which those prices were fixed.

83 Finally, the Commission refers to an undated table headed "Producers' Sales to West Europe", found at the premises of ICI (main statement of objections, Appendix 55), which sets out for all the polypropylene producers in western Europe the sale figures in kilotonnes for 1976, 1977 and 1978 and figures under the headings "1979 actual" and "revised target". That table contains information which must be kept strictly secret as confidential business information and could not have been drawn up without BASF' s participation.

84 Finally, it states that the fact that the applicant can remember only four meetings in which it participated in 1981 in no way refutes the information given by ICI regarding the regularity of the applicant' s participation in the meetings.

(c) Assessment by the Court

85 The Court observes that ICI' s reply to the request for information (main statement of objections, Appendix 8) classifies the applicant, unlike two other producers, among the regular participants in the "bosses' " and experts' " meetings without any qualification as regards time. 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.

86 ICI' s reply to the request for information is corroborated, first, by the applicant' s own answer to the request for information (particular objections, BASF, Appendix 1), which states that "before 1 December 1980 representatives of our company participated sporadically in meetings of European polypropylene producers"; secondly, by the mention, next to the applicant' s name, in various tables found at the premises of ICI, ATO and Hercules (main statement of objections, Appendices 55 to 62), of its sales figures for various months and years, when, as most of the applicants admitted in their replies to a written question put by the Court, 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". Thirdly, ICI' s reply is confirmed by the fact that the price instructions issued by the applicant on 24 and 27 July 1979 correspond to those issued by other producers (letter of 29 March 1985, Appendix A), which supports the inference that they are the result of collusion between the producers in or about June 1979. GROUNDS CONTINUED UNDER DOC.NUM : 689A0004.1

87 As regards more specifically the first eleven months of 1980, the Decision (point 32 and Table 3) states that seven meetings of producers were held, but does not state who took part. The applicant' s denial of participation in those meetings is lacking in credibility since in its reply to the request for information it states that it took part sporadically in meetings during that period but cannot identify their dates and locations. That is all the more true inasmuch as the applicant stated before the Court that it had used the word "sporadically" in its reply to the request for information because it was not in a position to identify the dates and locations of meetings prior to 1 December 1980 and that it knew only that certain of its representatives had attended only a few meetings.

88 For the rest of the period in question (from 1 December 1980 to June 1982), the applicant' s assertion that it took part in only four meetings is not credible, since its statements regarding its participation in the meetings are lacking in precision and are inaccurate on certain points, as in the case of the meeting of 13 May 1982, the note of which (main statement of objections, Appendix 24) attests the presence of BASF although that meeting is not one of the meetings in which it admitted having participated in its reply to the request for information.

89 The Commission was also entitled to take the view, based on the material provided by ICI in its reply to the request for information, which is borne out by numerous notes of meetings, that the purpose of the meetings was, in particular, to fix target prices and sales volumes. That reply states: "' 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".

90 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 onwards, 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.

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

92 It follows that the Commission has established to the requisite legal standard that the applicant participated regularly in the system of regular meetings of polypropylene producers from the end of 1978 or the beginning of 1979 until September 1983, that the purpose of those meetings was, in particular, to fix price and sales volume targets and that they were part of a system.

C. The price initiatives

(a) The contested decision

93 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.

94 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 BASF, which show that those producers had given orders to national sales offices to apply that price level or its equivalent in national currency from 1 September, in most cases before the announcement of the planned increase in the trade press (Decision, point 30).

95 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).

96 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 and Saga in addition to 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.

97 The Decision (point 33) records the participation of BASF in one of the two meetings held 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. Documents found at the premises of BASF show inter alia that it took steps to introduce the target prices set for February and March.

98 According to the Decision (point 34), the plan to move to DM 2.00/kg on 1 March does 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.

99 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.

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

101 The fourth price initiative of June to July 1982 took place as supply and demand returned into balance on the market. That initiative was decided upon at the producers' meeting of 13 May 1982, at which Hercules 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).

102 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.

103 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).

104 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).

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

106 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).

107 Like ATO, DSM, Hercules, Hoechst, Huels, ICI, Linz, 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 (main statement of objections, Appendix 29) (Decision, point 45, second paragraph).

108 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.

109 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 reaffirmed complete commitment to the DM 1.85/kg increase. On that occasion, it was agreed that Shell would lead publicly in a specialized industry journal, European Chemical News (ECN).

110 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. 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.

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

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

113 The Decision (point 51, third paragraph) states that an internal note obtained at the premises of ATO and dated 28 September 1983 shows a table headed "Rappel du prix de cota (sic)" giving for various countries prices for September and October for the three main grades of polypropylene which are identical to those of BASF, DSM, Hoechst, Huels, ICI, Linz, Monte and Solvay. During the investigation at the premises of ATO in October 1983 the representatives of the undertaking confirmed that these prices were communicated to sales offices.

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

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

(b) Arguments of the parties

116 With regard to the July-December 1979 price initiative the applicant maintains that the fact that its price instructions correspond to those of the other producers may be explained by the proved increases in prices of raw materials, in particular propylene, to which all the producers were subject in the same manner. It adds that the fact that there was a long period (from 20 June to 8 August 1979) separating the instructions issued by the various producers (letter of 29 March 1985, Appendix A) confirms their independent nature and stresses that the Commission has not proved its participation in the meeting of 26 and 27 September 1979. Finally, the applicant argues that its price instructions were purely internal and that the Commission cannot infer from them the implementation of a target price fixed at a meeting.

117 The applicant subdivides the January-May 1981 price initiative into three separate initiatives. For the January-February price initiative it begins by pointing out that it is not mentioned in Table 7B of the Decision, concerning that price initiative, and that at the time when that initiative was decided upon it did not attend any producers' meeting. Its price instructions of 22 December 1980 and 20 and 25 February 1981 (letter of 29 February 1985, Appendix BASF C) were issued in reaction to the news of an increase in raw materials prices published on 18 December 1980. The applicant further maintains that the mention of the phrase "target list prices" in an ICI price instruction (main statement of objections, Appendix 16) does not prove that a meeting was held at which that target was fixed, because that phrase is one peculiar to ICI, an internal indication to its sales offices of the price level at which they should aim, and because the instruction makes no reference to any meeting.

118 As regards the March-April price initiative, the applicant disputes the evidentiary value of the price instructions produced by the Commission (letter of 29 February 1985, Appendix BASF C) on the ground that the inclusion of the word "agreed" does not show whether BASF accepted a price increase following the exchange of information or whether BASF' s attempt to raise its prices was dictated independently by other factors before it first participated in the meetings. Moreover, the price table attached to the note of the two meetings in January 1981 (main statement of objections, Appendix 17) is not conclusive either, since there is no evidence that it was ever discussed.

119 As regards the May 1981 price initiative, it points out that the Commission has admitted that it does not have notes of meetings and is thus proceeding solely on the basis of the price instructions issued by BASF on 30 April and 6 May 1981 (letter of 29 February 1985, Appendix BASF D). These, however, may be explained by the increase in the cost of raw materials, the probable amount of which was published in ECN on 20 April 1981 (main statement of objections, Appendix 20). The applicant also disputes the evidentiary value of the price instructions of various producers for May and June (main statement of objections, Appendix 19), arguing that they do not support the inference of collusion between producers - let alone the participation of BASF in such collusion - since information on prices had been made public before those instructions were issued.

120 The applicant dos not deny having taken part in the price initiatives in 1982 and 1983. It reiterates, however, that its price instructions were purely internal, as is confirmed by an audit carried out by an independent firm of accountants concerning the net selling prices (after deduction of any rebates) charged by the producers during the period of reference (hereinafter referred to as the "Coopers & Lybrand audit"). The conclusions of that audit show that those instructions had no effect on the prices actually charged on the market.

121 The Commission submits that the fact that the price instructions issued by the applicant on 24 and 27 July 1979 are identical to those issued by Monte, Shell, ICI, Hoechst, Linz and ATO for 1 September 1979 cannot be explained by an increase in the price of raw materials and therefore proves the existence of concertation on prices. That conclusion follows in particular from the note of the meeting of 26 and 27 September 1979 (main statement of objections, Appendix 12), which refers to the 1979 price initiative, since it states "2.05 remains the target".

122 The Commission goes on to consider that BASF took part in the price initiative of late 1980/early 1981. It bases that view on a telex of 22 December 1980 in which BASF indicates a price of DM 1.77/kg applicable on 20 January 1981, which, says the Commission, is the result of an agreement with the other producers, as is confirmed by the note of the two meetings in January 1981, in the second of which BASF took part. That note is accompanied by a price table which corresponds to the price instructions issued by BASF and a number of other producers (letter of 29 February 1985, Appendix C).

123 As regards March and April 1981, the Commission acknowledges that it has no direct evidence of BASF' s participation in the meetings, but it asserts that the fact that BASF' s price instructions correspond to those of the other producers for the same period (letter of 29 February 1985, Appendix D) shows that the contacts between the producers had not suddenly been interrupted. The Commission considers that that proof is not shaken by the fact that the price increases contemplated by certain producers had been published in the 20 April issue of ECN (main statement of objections, Appendix 20) because BASF' s price instruction of 6 May 1981 simply confirmed an identical price instruction which BASF had already issued on 27 March 1981.

124 The Commission states that the situation is exactly the same as regards September and October 1981 (letter of 29 February 1985, Appendix E).

125 It further considers that BASF took part in all the price initiatives in 1982 and 1983. In support of that assertion it refers to the notes of the meetings from May 1982 to the end of September 1983 (main statement of objections, Appendices 24 to 40) and on the concordant price instructions issued by BASF and the other producers following those meetings (letter of 29 February 1985, Appendices F to I).

(c) Assessment by the Court

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

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

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

128 In this regard, it must be noted that the applicant does not specifically deny having participated in the price initiatives which took place in the second half of 1981 and in 1982 and 1983, and the fact that its price instructions correspond to those issued by various producers also shows that it participated in the implementation of those price targets by the producers.

129 The Court considers that the applicant' s arguments intended to show that it did not subscribe to the agreed price initiatives cannot be upheld, for the following reasons.

130 The applicant' s arguments based on the identical nature of the constraints faced by the various producers cannot explain the fact that their price instructions, expressed in different national currencies, were identical, since the identical nature of those constraints was restricted to certain factors of production, such as the price of raw materials, and did not relate to general expenses, wage costs or tax rates, which meant that the profitability threshold for the various producers was significantly different, as is shown, for example, by the note of the meeting of the "European Association for Textile Polyolefins" of 22 November 1977 (main statement of objections, Appendix 6), in which the applicant did not participate. According to that note, in order to reach the profitability threshold Hoechst sought a price of DM 1.85/kg, ICI a price of DM 1.60/kg, Rhône-Poulenc a price of FF 3.50 and Shell a price of DM 1.50/kg.

131 As regards the purely internal nature of the applicant' s price instructions and the target prices which it set, the Court observes that although those instructions were internal in the sense that they were sent by the head office to the sales offices, they were sent with a view to being implemented and thus having external effects, as is expressly confirmed by the price instruction issued by BASF on 26 September 1983 (main statement of objections, Appendix 42), which states:

"Wir muessen Sie also bitten, unsere Kunden dahingehend zu informieren, dass ein weiterer Preisschritt fuer Lieferungen ab 1. November von 0,15 DM/kg unvermeidbar ist."

("We must therefore ask you to inform clients that a further price increase of 0.15 DM/kg for deliveries from 1 November is unavoidable.")

Similarly, purely internal price objectives lose that character as soon as they are discussed with other producers. Consequently, the applicant' s arguments are not such as to cast doubt on its participation in the successive price initiatives.

132 The appearance in ECN of news regarding prices is not such as to deprive the fact that the applicant' s price instructions corresponded to those of other producers of evidentiary value, since it is established that several producers issued price instructions before that news appeared, producers' meetings took place at the time in question and it is clear, moreover, from the note of the meeting of 1 June 1983 (main statement of objections, Appendix 40) that when a price initiative was decided upon it was announced in the specialized press. That note states that: "Shell was reported to have committed themselves to the move and would lead publicly in ECN".

133 As regards the argument drawn by the applicant from the fact that the Coopers & Lybrand audit shows that its price instructions had no effect on the prices charged, it should be pointed out that lack of effect cannot undermine the evidence put forward by the Commission to show that the price initiatives were the result of the fixing of price targets by the various producers.

134 Finally, the Court considers that the Commission could reasonably take the view that the price table attached to the note of the two meetings held in January 1981 (main statement of objections, Appendix 17) had been discussed at those meetings and was the result of them.

135 Furthermore, the Commission was fully entitled to deduce from ICI' s reply to the request for information (main statement of objections, Appendix 8), in which it is stated that "' Target prices' for the basic grade of each principal category of polypropylene as proposed by producers from time to time since 1 January 1979 are set forth in Schedule ...", that those initiatives were part of a system of fixing target prices.

136 Finally, although the last meeting of producers proved by the Commission to have taken place was that held on 29 September 1983, the fact remains that between 20 September and 25 October 1983 various producers (BASF, Hercules, Hoechst, Huels, ICI, Linz, Monte, Solvay and Saga) sent out matching price instructions (letter of 29 March 1985, Appendix I) scheduled to enter into force on 1 November 1983, and the Commission could therefore reasonably take the view that the meetings of producers had continued to produce their effects until November 1983.

137 Moreover, in order to support the foregoing findings of fact, the Commission did not need to use documents which it had not mentioned in its statements of objections or which it had not disclosed to the applicant.

138 It follows that the Commission has established to the requisite legal standard that the applicant was one of the polypropylene producers amongst whom there emerged common intentions concerning the price initiatives mentioned in the Decision, that those initiatives were part of a system and that those price initiatives continued to have effects until November 1983.

C. The measures designed to facilitate the implementation of the price initiatives

(a) The contested decision

139 In the Decision (Article 1(c) and point 27; see also point 42) the Commission asserts that the applicant agreed with the other producers various measures designed to facilitate the implementation of target prices, such as temporary restrictions on output, exchanges of detailed information on their deliveries, the holding of local meetings and, from September 1982, a system of "account management" designed to implement price rises to individual customers.

140 As regards the system of "account management", whose later more refined form, "account leadership", dates from December 1982, the applicant, like all the producers, was nominated coordinator or "leader" for at least one major customer, in respect of whom it was charged with secretly coordinating its dealings with suppliers. Under that system, customers were identified in Belgium, Italy, Germany and the United Kingdom and a "coordinator" was nominated for each of them. In December 1982, a more general adoption of the system was proposed, with an account leader named for each major customer who would guide, discuss and organize price moves. Other producers which had regular dealings with the customer were known as "contenders" and would cooperate with the account leader in quoting prices to the customer in question. In order to "protect" the account leader and the contenders, any other producers approached by the customers were to quote prices higher than the desired target. Despite ICI' s assertions, according to which the scheme collapsed after only a few months of partial and ineffective operation, the Commission states in the Decision that a full note of the meeting held on 3 May 1983 shows that at that time detailed discussions took place on individual customers, on the prices offered or to be offered to them by each producer, and on the volumes supplied or on order.

141 According to the Decision (point 42, first paragraph), at the meeting of 2 September 1982 the BASF representative warned of the danger of all the producers quoting the same price of DM 2.00/kg; it was agreed that, if approached, producers other than the major suppliers to a particular client would quote above DM 2.00/kg so as to assist the implementation of the target.

142 Although it recognizes that there were no local meetings in Germany, the Decision (point 20) asserts that BASF remained in close contact with Hoechst and Huels and adopted with them a common position in some matters such as quotas.

(b) Arguments of the parties

143 As regards production restrictions, the applicant states that the notes of the meetings of 13 May and 21 September 1982 (main statement of objections, Appendices 24 and 30) at most show that such proposals were made, but certainly not that they had any success whatsoever. With regard to the second of these notes, the applicant argues that although it was obliged to reduce its production in October 1982, that was for purely technical reasons. Moreover, the reduction had no effect on the market since it was made up for by a reduction in stocks. That explanation is consistent with the text of the note, according to which BASF' s representative said not that the production unit should be closed down but that it would be closed down.

144 As regards the "account leadership" system, the applicant states that although the note of the meeting of 2 September 1982 (main statement of objections, Appendix 29) suggests that there were attempts to set up such a system, the producers were never able to reach agreement on that point. In any event, BASF rejected the system from the start and did not take part, as is indicated by the fact that BASF' s name is not mentioned in that note. At the hearing the applicant stated that it was in his personal capacity that its representative gave his ideas on "account leadership" at that meeting. It adds that table 3 attached to the note of the meeting of 2 December 1982 (main statement of objections, Appendix 33), in which BASF appears as the "account leader" for three customers, is not conclusive since these are manifestly proposals by the author of the table which were never approved by the applicant. Furthermore, the customers mentioned in it are unimportant.

145 The Commission observes that it did not, in the Decision, accuse the applicant of having reduced its production, as the latter asserts. It states, however, that it appears from the note of the meeting of 21 September 1982 (main statement of objections, Appendix 30) that BASF indicated its willingness to support the price initiative agreed upon at that meeting by reducing its production. The Commission adds that even if such reductions were not in fact made, the simple fact that a producer announces its intention to reduce its production for any reason whatever constitutes the divulgation of confidential business information, which is prohibited.

146 The Commission asserts that BASF' s participation in the "account leadership" system may be seen in the notes of the meetings of 2 September and 2 December 1982 (main statement of objections, Appendices 29 and 33) and of the two meetings held in spring 1983 (main statement of objections, Appendices 37 and 38). At the first meeting BASF warned the other producers of the danger of quoting an identical price to all customers. As a result of that point it was proposed and agreed that producers other than the major suppliers to a particular client would quote it a few pfennigs more. Table 3 of the note of the meeting of 2 December 1982 shows that BASF was named "account leader" for three of its customers, in France, the Federal Republic of Germany and Denmark. The note of a meeting in spring 1983 confirms those assertions (main statement of objections, Appendix 37).

147 Furthermore, the Commission accuses BASF of acting not only as an "account leader" but also as a "contender". Those accusations are corroborated by ICI' s reply to the request for information (main statement of objections, Appendix 8), in which ICI describes the functioning of the system for BASF' s Danish client (Jacob Holm, in respect of which ICI and Huels acted as "contenders"), a description which is confirmed by the note of the meeting of 3 May 1983 (main statement of objections, Appendix 38). The Commission further argues that the applicant' s argument that Jacob Holm was an unimportant client in respect of which BASF had no need of protection may be doubted since in the notes of meetings, such as that of 1 June 1983 (main statement of objections, Appendix 40), the name of Jacob Holm is constantly cited in a prominent position in relation to the applicant, which shows that it was one of the applicant' s key customers.

(c) Assessment by the Court

148 The Court observes, first of all, that although the German producers did not organize local meetings in Germany they nevertheless maintained close contacts among themselves, as a result of which the applicant even went so far as to prepare a quota proposal on behalf of the German producers, as is shown by the note of a telephone conversation between an ICI employee and the applicant' s representative (main statement of objections, Appendix 83), in which it is stated: "A: [the applicant' s representative] phoned to give me his company' s figure for September sales + to pass on the German producers' view of how the market might be shared in 1983" (a detailed table follows).

149 Secondly, the note of the meeting of 2 September 1982 (main statement of objections, Appendix 29), in which the applicant participated, indicates that the commitment of the undertakings to applying the price targets was to go as far as accepting the loss of sales volume, as is confirmed by the note of the meeting of 21 September 1982 (main statement of objectives, Appendix 30), in which the applicant also participated, which states: "In support of the move, BASF, Hercules and Hoechst said they would be taking plant off line temporarily", an assertion which supports the objection made in the Decision concerning "the exchange of information on planned temporary plant closures which might be helpful in reducing overall supply (point 27, fourth indent).

150 Thirdly, the Court observes that at the meeting of 2 September it was the applicant' s representative (Mr A) who warned against the danger in all the producers quoting the same price to their customers and that it was he who proposed a solution to the problem. The note of that meeting (main statement of objections, Appendix 29) states:

"about the dangers of everyone quoting exactly DM 2.00 A.' s point was accepted but rather than go below DM 2.00 it was suggested & generally agreed that others than the major producers at individual accounts should quote a few pfs higher. Whilst customer tourism was clearly to be avoided for the next month or two it was accepted that it would be very difficult for companies to refuse to quote at all when, as was likely, customers tried to avoid paying higher prices to the regular suppliers. In such cases producers would quote but at above the minimum levels for October".

151 Furthermore, the applicant' s name appears in table 3 attached to the note of the meeting of 2 December 1982 (main statement of objections, Appendix 33) as the "account leader" for three clients (one in Germany, Boussac in France and Jacob Holm in Denmark) and in the note of a meeting held in spring 1983 (main statement of objections, Appendix 37) devoted mainly to an examination of the system of "account leadership". Moreover, in the note of the meeting of 3 May 1983 (main statement of objections, Appendix 38) it is stated: "To protect BASF, it was agreed that CWH[uels] + ICI would quote Dkr 6.75 from now to end June (DM 1.85)."

152 It follows from those various pieces of evidence that BASF participated actively in the "account leadership" system and that it cannot exculpate itself by arguing that it was in his personal capacity that its representative spoke at the meeting of 2 September 1982.

153 The applicant' s argument that the customers for which it is accused of being the "account leader" were unimportant, so that it could not have been their "account leader", cannot be upheld. The relevant question is not whether or not the three customers of the applicant were important customers but whether or not it was one of their main suppliers. The applicant has neither asserted nor proved that it was not one of the main suppliers of those customers.

154 With regard more generally to the measures designed to facilitate the implementation of the price initiatives, the Court considers that point 27 of the Decision is to be interpreted in the light of the second paragraph of point 26, not as contending that each of the producers committed itself individually to adopt all the measures mentioned there but as asserting that at various times those producers adopted at those meetings together with the other producers a set of measures mentioned in the Decision and designed to bring about conditions favourable to an increase in prices, in particular by artificially reducing the supply of polypropylene, and that the implementation of the various measures involved was by common agreement shared between the various producers according to their specific situation.

155 It must be concluded that in participating in the meetings