Parties

Grounds

Operative part



Parties

In Case T‑53/03,

BPB plc, established in Slough (United Kingdom), represented by T. Sharpe QC, and A. Nourry, Solicitor,

applicant,

v

Commission of the European Communities, represented by F. Castillo de la Torre, acting as Agent, J. Flynn QC, and C. Kilroy, Barrister,

defendant,

APPLICATION for the annulment in part of Commission Decision 2005/471/EC of 27 November 2002 relating to a proceeding under Article 81 [EC] against BPB plc, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 – Plasterboard) (OJ 2005 L 166, p. 8), or, in the alternative, annulment or reduction of the fine imposed on the applicant,

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

composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 24 January 2007,

gives the following

Judgment

Grounds

Facts

1. BPB plc manufactures and markets plasterboard-based building materials.

2. On the basis of information received, on 25 November 1998 the Commission carried out unannounced inspections at the premises of eight undertakings operating in the plasterboard sector, including the applicant. On 1 July 1999, it pursued its investigations at the premises of two other undertakings.

3. The Commission then sent requests for information under Article 11 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959–1962, p. 87) to the various undertakings concerned. It sent four such requests to the applicant. BPB replied to them on 17 March 1999, 28 October 1999, 18 May 2000 and 6 September 2002.

4. On 18 April 2001, the Commission initiated the procedure in this case and adopted a statement of objections which it addressed to the applicant and to Gebrüder Knauf Westdeutsche Gipswerke KG (‘Knauf’), Société Lafarge SA (‘Lafarge’), Etex SA and Gyproc Benelux NV (‘Gyproc’). The undertakings concerned submitted their written observations and were given access to the Commission’s investigation file in the form of a copy on CD-Rom which was sent to them on 17 May 2001.

5. The applicant replied to the statement of objections on 8 July 2001.

6. On 27 November 2002, the Commission adopted Decision 2005/471/EC relating to a proceeding under Article 81 [EC] against BPB, Knauf, Lafarge and Gyproc (Case No COMP/E-1/37.152 – Plasterboard) (OJ 2005 L 166, p. 8; ‘the contested decision’).

7. The operative part of the contested decision states:

‘Article 1

BPB … , the Knauf Group, … Lafarge … and Gyproc … have infringed Article 81(1) [EC] by participating in a set of agreements and concerted practices in the plasterboard business.

The duration of the infringement was as follows:

(a) BPB …: from 31 March 1992, at the latest, to 25 November 1998

(b) [the] Knauf [Group]: from 31 March 1992, at the latest, to 25 November 1998

(c) … Lafarge …: from 31 August 1992, at the latest, to 25 November 1998

(d) Gyproc …: from 6 June 1996, at the latest, to 25 November 1998

…

Article 3

In respect of the infringement referred to in Article 1, the following fines are imposed on the following undertakings:

(a) BPB …: EUR 138.6 million

(b) … Knauf …: EUR 85.8 million

(c) … Lafarge …: EUR 249.6 million

(d) Gyproc …: EUR 4.32 million …

…’

8. The Commission found in the contested decision that the undertakings concerned participated in a single and continuous agreement which was manifested in the following conduct constituting agreements or concerted practices:

– the representatives of BPB and Knauf met in London (United Kingdom) in 1992 and expressed the common desire to stabilise the plasterboard markets in Germany, the United Kingdom, France and the Benelux;

– the representatives of BPB and Knauf established, as from 1992, information exchange arrangements, to which Lafarge and subsequently Gyproc acceded, relating to their sales volumes on the German, French, United Kingdom and Benelux plasterboard markets;

– the representatives of BPB, Knauf and Lafarge exchanged information, on various occasions, prior to price increases on the United Kingdom market;

– in view of particular developments on the German market, the representatives of BPB, Knauf, Lafarge and Gyproc met at Versailles (France) in 1996, Brussels (Belgium) in 1997 and The Hague (Netherlands) in 1998 with a view to sharing out or at least stabilising the German market;

– the representatives of BPB, Knauf, Lafarge and Gyproc exchanged information on various occasions and concerted their action on the application of price increases on the German market between 1996 and 1998.

9. For the purpose of calculating the amount of the fine, the Commission applied the methods set out in its Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’).

10. In fixing the starting amount of the fines, determined according to the gravity of the infringement, the Commission initially considered that the undertakings concerned had committed an infringement which was very serious by its very nature in so far as the aim of the practices at issue was to put an end to the price war and to stabilise the market through exchanges of confidential information. The Commission also considered that the practices at issue had had an impact on the market, since the undertakings concerned represented almost all plasterboard supply and the various manifestations of the cartel had been put into practice in a highly concentrated and oligopolistic market. As regards the geographic extent of the relevant market, the Commission considered that the cartel had covered the four main European Community markets, namely Germany, the United Kingdom, France and the Benelux.

11. Considering, next, that there was a considerable disparity between the undertakings concerned, the Commission took a differentiated approach, relying for that purpose on the sales turnover for the product concerned on the relevant markets during the last complete year of the infringement. On that basis, the starting amount of the fines was set at EUR 80 million for BPB, EUR 52 million for Knauf and Lafarge and EUR 8 million for Gyproc.

12. In order to ensure that the fine had an adequate deterrent effect having regard to the size and aggregate resources of the undertakings, the starting amount of the fine imposed on Lafarge was increased by 100%, becoming EUR 104 million.

13. In order to take account of the duration of the infringement, the starting amount was then increased by 65% for BPB and Knauf, by 60% for Lafarge and by 20% for Gyproc, the infringement being classified by the Commission as of long duration in the case of Knauf, Lafarge and BPB and of medium duration in the case of Gyproc.

14. In respect of aggravating circumstances, the basic amount of the fines imposed on BPB and Lafarge was increased by 50% on account of recidivism.

15. Next, the Commission reduced by 25% the fine imposed on Gyproc on account of attenuating circumstances, in that it had acted as a destabilising element helping to limit the impact of the cartel on the German market and it was absent from the United Kingdom market.

16. Finally, the Commission reduced the amount of the fines by 30% for BPB and by 40% for Gyproc, pursuant to Section D.2 of the Commission Notice on the non‑imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’). Accordingly, the final amount of the fines imposed was EUR 138.6 million for BPB, EUR 85.8 million for Knauf, EUR 249.6 million for Lafarge and EUR 4.32 million for Gyproc.

Procedure and forms of order sought

17. By application lodged at the Registry of the Court of First Instance on 14 February 2003, the applicant brought the present action.

18. Following a change in the composition of the Chambers of the Court at the beginning of the new judicial year, the Judge-Rapporteur was assigned to the Third Chamber, and this case was therefore also assigned to it.

19. On hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure of the Court of First Instance, requested the parties to lodge certain documents, and put questions in writing to which they replied within the prescribed period.

20. The parties presented oral argument and their answers to the oral questions put by the Court at the hearing on 24 January 2007.

21. At the hearing, the Court requested the applicant to clarify its request for confidentiality before 7 February 2007. A period of time was also granted to the Commission for any observations it might have on the applicant’s reply concerning the confidential information.

22. The oral procedure was closed on 27 March 2007.

23. The applicant claims that the Court of First Instance should:

– annul Articles 1 and 2 of the contested decision in so far as they relate to it;

– in the alternative, annul Article 3 of the contested decision in so far as it relates to it, or, in the further alternative, reduce appropriately the amount of the fine imposed on it by the Commission in the contested decision;

– subject to the annulment of Article 3 of the contested decision or reduction of the amount of the fine, order repayment of the principal sum paid by the applicant, together with such interest as the Court may determine in accordance with law;

– order the Commission to pay the costs.

24. The Commission contends that the Court of First Instance should:

– dismiss the application;

– order the applicant to pay the costs.

Law

1. The first plea: breach of the rights of the defence

Arguments of the parties

25. The applicant considers that the Commission has infringed the rights of the defence and the general principal of equality of arms by relying on evidence not provided to the applicant.

26. First, the applicant submits that the Commission did not grant it access to information provided by an anonymous informant. According to the applicant, that information was used by the Commission on 19 November 1998 in order to obtain a search warrant from a United Kingdom court. The applicant also considers that it appears from the affidavit attached as an annex to the application for a search warrant that the Commission considered that information to be convincing. The applicant maintains that the Commission’s conviction that there was a complex cartel influenced its interpretation of all the facts and evidence.

27. Second, the applicant submits that the Commission should have granted access to the replies of the other addressees of the statement of objections. The Commission relied on those replies on several occasions in the contested decision for the factual and evidential findings.

28. The Commission considers that the obligation to observe the rights of the defence does not require it to disclose the entire contents of the file to the undertakings concerned and thereby compromise any confidentiality of elements of the file. It is under no obligation to disclose to an addressee of a statement of objections inculpatory documents on which the Commission does not propose to rely. In this case, the Commission drew its inferences only from the evidence before it which is described in the statement of objections and in the contested decision.

29. The Commission denies that the applicant’s rights of defence have been infringed by its having been unable to examine the replies of the other addressees of the statement of objections. The Commission states that if, after adoption of the statement of objections, new matters come to light which it intends to use and regarding which the undertakings have not had the opportunity to submit their views, it must send a supplementary statement of objections or a letter asking the undertakings concerned for further observations on that new evidence. Its failure to do so would prevent it from relying on those matters as against the addressees of the initial statement of objections.

30. In this case, all the examples given by the applicant concerned admissions or denials of allegations which already appear in the statement of objections, on which therefore the applicant had the opportunity to comment. None of those statements introduces any new objection or new piece of factual information on which the Commission relied for its conclusions.

Findings of the Court

31. It must first be recalled that access to the file in competition cases is intended in particular to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission’s file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections. Access to the file is thus one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard can be exercised effectively (see Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 334 and the case-law cited).

32. With regard to inculpatory evidence, the obligation to allow access to the file relates merely to the evidence ultimately relied on in the decision and not to all the complaints which the Commission may have expressed at any stage of the administrative procedure ( Atlantic Container Line and Others v Commission , paragraph 31 above, paragraph 337). A document can be regarded as a document that incriminates an applicant only where it is used by the Commission to support a finding of an infringement in which that party is alleged to have participated (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cementeries CBR and Others v Commission [2000] ECR II‑491, ‘ Cement ’, paragraph 284).

33. Further, the applicant may not demand access, in a general and abstract way, to documents or information which have not been communicated to it without stating how the inculpatory evidence relied upon by the Commission in the contested decision was determined by those documents or that information. According to the case-law, an infringement of the rights of the defence cannot be founded on a general argument but must be examined in relation to the specific circumstances of each particular case ( Atlantic Container Line and Others v Commission , paragraph 31 above, paragraphs 353 and 354).

34. In the present case, as regards the information provided by the anonymous informant, the Commission does not dispute that that information was a factor in triggering the investigations. However, as is apparent from the contested decision, that information was ultimately not referred to as such by the Commission and the objections upheld were proved by other evidence.

35. Similarly, the applicant has not indicated any objection maintained either in the statement of objections or in the contested decision which is based solely on the information provided by the anonymous informant and to which it did not have access.

36. Further, even if the Commission has an obligation to make available to the undertakings involved in proceedings under Article 81(1) EC all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, that obligation does not extend to business secrets of other undertakings, the internal documents of the Commission or other confidential information (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 68 and Atlantic Container Line and Others v Commission , paragraph 31 above, paragraph 335). Thus, as the Commission asserts, in the case of information supplied on a purely voluntary basis, accompanied by a request for confidentiality in order to protect the informant’s anonymity, an institution which accepts such information is bound to comply with such a condition (Case 145/83 Adams v Commission [1985] ECR 3539, paragraph 34). The Commission’s ability to guarantee the anonymity of certain of its sources of information is of crucial importance with a view to ensuring the effective prevention of prohibited anti‑competitive practices (Case C‑94/00 Roquette Frères [2002] ECR I‑9011, paragraph 64).

37. Consequently, proceedings initiated on the basis of information from an undisclosed source are lawful, provided that this does not affect the opportunity for the person concerned to make known his views on the truth or implication of the facts, on the documents communicated or on the conclusions drawn by the Commission from them (Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 14).

38. In the light of the obligation to ensure the confidentiality of the information, and of the fact that the applicant has not referred to any objection maintained either in the statement of objections or in the contested decision which is based on evidence to which it did not have access, it cannot complain that the Commission infringed the rights of the defence and the general principle of equality of arms on the ground that the Commission did not give it access to the information provided by the anonymous informant.

39. As regards access to the replies of the other addressees of the statement of objections, it is common ground that the applicant did not have access to those replies during the administrative procedure.

40. As regards, first, the failure to communicate the alleged inculpatory evidence which was not in the investigation file, the Court notes that the observance of the rights of the defence constitutes a fundamental principle of Community law which must be respected in all circumstances, in particular in any procedure which may give rise to penalties, even if it is an administrative procedure. It requires that the undertakings and associations of undertakings concerned be afforded the opportunity, from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission ( Hoffmann-La Roche v Commission , paragraph 37 above, paragraph 11, and Case T‑11/89 Shell v Commission [1992] ECR II‑757, paragraph 39).

41. Next, it should be borne in mind that, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes evidence against the various parties alleged to have participated in the infringement (see Cement , paragraph 32 above, paragraph 386, and Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 50 and the case-law cited).

42. A document cannot be regarded as an inculpatory document unless it is used by the Commission in support of its finding of an infringement by an undertaking. In order to establish a breach of the rights of the defence, it is not sufficient for the undertaking in question to show that it was not able to express its views during the administrative procedure on a document used in a given part of the contested decision. It must demonstrate that the Commission used that document in the contested decision as evidence of an infringement in which the undertaking participated (Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraph 158).

43. Since documents that have not been communicated to the undertakings concerned during the administrative procedure are not admissible evidence, it will be necessary to exclude those documents as evidence if it should prove that the Commission relied in the Decision on documents that were not in the investigation file and were not communicated to the applicants ( Cement , paragraph 32 above, paragraph 382).

44. If there is other documentary evidence of which the undertakings concerned were aware during the administrative procedure that specifically supports the Commission’s findings, the fact that an incriminating document not communicated to the person concerned is inadmissible as evidence does not affect the validity of the objections upheld in the contested decision ( Aalborg Portland and Others v Commission, paragraph 36 above, paragraph 72).

45. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence ( Aalborg Portland and Others v Commission , paragraph 36 above, paragraph 73).

46. In the present case, BPB refers only to recitals 130, 232, 393 and 524 of the contested decision in order to illustrate that the Commission relied on the replies of the other addresses of the statement of objections as inculpatory evidence.

47. Concerning those examples, it should be observed that, at recital 524 of the contested decision, the Commission merely cites Gyproc’s statement, in its reply to the statement of objections, that its participation was of a different intensity. Thus, that evidence was in no way used against BPB.

48. As regards recital 130 of the contested decision, it is an extract from Lafarge’s reply to the statement of objections claiming that BPB was the instigator of the information exchange system. However, at no point in the contested decision does the Commission use that statement of Lafarge in order to prove that BPB was the instigator of that system. Similarly, BPB’s fine was not increased on the ground that it was the instigator of the cartel. Further, as is apparent from an examination of the second plea below, BPB admitted that it infringed competition law by participating in an exchange of information on sales volumes on the four markets concerned.

49. As regards recital 232 of the contested decision, namely the interpretation by Gyproc of the memorandum and the statements of Mr [E], managing director of Gyproc, in its reply to the statement of objections, reference should be made to Gyproc’s words:

‘Gyproc later backtracked on the memo and Mr [E]’ explicit statement by arguing that “the so-called Versailles agreement was only an attempt and was never effectively implemented” and also that “there was never a proper meeting of minds among the participants, and definitely not as far as Gyproc was concerned, about all the details of how the German market should be shared. The [undertakings concerned] never agreed about the precise market share that Gyproc should have. … So Gyproc scuppered the attempt to conclude an agreement between the four”.’

50. As the Commission noted at recital 233 of the contested decision, the statements by Gyproc, which in principle have less probative value than the abovementioned memorandum and the spontaneous statements of Mr [E], do not negate either the content or the purpose of the talks that were held but only, possibly, their result. Further, it should be recalled that BPB admitted that the Versailles meeting took place and that the purpose of the meeting was to discuss the situation on the German market.

51. Moreover, it should be noted that the Commission found only that the undertakings in question had met in Versailles in 1996, Brussels in 1997 and The Hague in 1998 with a view to sharing or at least stabilising the German market, but it did not claim that they had succeeded in concluding an agreement on allocating shares of the German market.

52. In those circumstances, even if Gyproc’s interpretation of Mr [E]’s memorandum and statements set out at recital 232 of the contested decision were disregarded, that fact would not influence the assessments made by the Commission in that decision.

53. Accordingly, the result at which the Commission arrived in the contested decision would not have been different if the extracts from Gyproc’s and Lafarge’s replies to the statement of objections referred to by BPB had been removed from the file.

54. Lastly, it is apparent from recital 393 of the contested decision that Gyproc accepted the Commission’s description of the facts regarding the price increases on the German market. This is indeed a factor that the Commission used to support its contention that there had been concerted action on price increases on the German market, a contention which BPB disputes. Thus, it is necessary to disregard that factor as evidence and then consider, so far as concerns BPB, whether the Commission demonstrated to the requisite legal standard that BPB, Knauf, Lafarge and Gyproc had exchanged information on various occasions and had concerted their action on the application of price increases on the German market between 1996 and 1998.

55. As regards, second, whether the replies of the other addresses of the statement of objections might have contained exculpatory evidence, the applicant has not put forward any arguments to that effect in the application.

56. In response to a written question of the Court requesting it to indicate the paragraphs of the application in which a plea alleging infringement of the rights of the defence relating to exculpatory evidence was raised, the applicant merely referred to paragraphs 75 to 120 of its application. Yet in those paragraphs the applicant does not submit that the replies of the other addressees of the statement of objections might have contained exculpatory evidence which it could have used for its defence. In those circumstances, the applicant’s arguments that the replies of the other addressees of the statement of objections might have contained exculpatory evidence must be rejected.

57. It follows from the foregoing that the first plea must be rejected, without prejudice to the possible effect of the fact that Gyproc’s statements in its reply to the statement of objections and referred to by the Commission in recital 393 of the contested decision are not to be taken into account. Consequently, it is necessary to examine the complaint in the second plea contesting the Commission’s findings on the exchange of information on price increases in Germany.

58. Furthermore, and for the sake of completeness, the Court will examine the substance of the case, disregarding all the inculpatory evidence derived from the replies of the other addresses of the statement of objections, in order to ascertain whether the Commission’s assessment as to the existence and effects of the infringement is demonstrated to the requisite legal standard even without that evidence.

2. The second plea: manifest errors and/or inadequacy of the statement of reasons concerning the application of Article 81(1)EC

The standard of proof

Arguments of the parties

59. The applicant takes the view that, in cases leading to the imposition of a heavy fine, the standard of evidence required is comparable to that in criminal proceedings. In that regard, the applicant submits that the burden of proof falls upon the Commission and that the infringement must be demonstrated to the requisite legal standard, a term which, according to the applicant, must be interpreted as requiring that convincing proof be adduced that the alleged infringements have been committed. It considers that, in such a situation, the ordinary application of the balance of probabilities is not sufficient. Moreover, in order to respect the presumption of innocence, any doubts about evidence must favour the defence.

60. The Commission disputes that the standard of proof to be applied in competition cases is the same as that required in criminal proceedings.

Findings of the Court

61. According to case‑law, where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. In doing this, the Commission must establish in particular all the facts enabling the conclusion to be drawn that an undertaking participated in such an infringement and that it was responsible for the various aspects of it (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86).

62. When the infringement involves anti-competitive agreements and concerted practices, the Commission must, in particular, show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk ( Commission v Anic Partecipazioni , paragraph 61 above, paragraph 87).

63. It is normal, in the context of anti‑competitive practices and agreements, for the activities to take place in a clandestine fashion, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules ( Aalborg Portland and Others v Commission , paragraph 36 above, paragraphs 55 to 57).

64. It is apparent from that case‑law that the Court must reject the applicant’s assertion that the Commission must adduce proof ‘beyond reasonable doubt’ of the existence of the infringement in cases where it imposes heavy fines.

The London meeting

Arguments of the parties

65. The applicant considers that the Commission has failed to prove that an agreement was entered into at the London meeting and that the subsequent information exchanges were a device to monitor the implementation of that agreement. The London meeting is the key to the Commission’s case, since the other events are linked to it and it marks the inception of the infringement.

66. The applicant admits that that meeting took place but submits that the Commission’s interpretation of that admission goes beyond what it actually said. Even though Mr [A] (its then Chief Executive Officer (CEO)) discussed with the cousins of the Knauf family the vigorous competition in the plasterboard market and even though both parties recognised the problem, it denies categorically having reached an agreement on a solution with the cousins of the Knauf family. Moreover, no common wish to stabilise the market was expressed at that meeting.

67. The applicant also admits that that meeting may have been a factor in accelerating the end of the price war. However, that meeting is not the only causal factor. The applicant claims that the economic situation on the relevant market was such that in 1992 the price war had ended in any event. That is confirmed by the expert economist retained by it, whose report was however not taken into account by the Commission in the contested decision.

68. The applicant considers that the fact that competition continued on the market concerned contradicts the Commission’s interpretation of the London meeting. The Commission’s assertions in recitals 212 and 395 of the contested decision are not supported by any evidence. In that regard, the applicant maintains that the Commission decided not to take account of numerous proven examples of price volatility which it had given to the Commission in its reply to the statement of objections. The applicant also contests the Commission’s assertions regarding the stability of market shares. It claims that the Commission’s own tables in the annex to the contested decision show the contrary. It also states that the Commission’s allegations are devoid of probative value, since the Commission nowhere states in the contested decision what the pre-1992 market shares of the undertakings concerned were and, therefore, a comparison of market shares was impossible.

69. As regards the Commission’s assertion that there is no need to take account of the concrete effects of an infringement, the applicant claims that, where the existence of an agreement is merely asserted by the Commission and is not supported by any evidence, it is necessary to take account of evidence of what took place in the market. The applicant is of the opinion that, if that evidence tends to establish the absence of any anti-competitive agreement and no other evidence to the contrary has been adduced by the Commission, the latter must consider that no agreement was made. The applicant states that it is not merely a question of determining whether the agreement was implemented but rather of determining whether the Commission has established the existence of the alleged agreement.

70. The Commission states that the applicant’s argument that no agreement existed is based on the misapprehension that the agreement has to be finite, detailed and legally binding. It adds that the object of Article 81 EC is to bring within the prohibition of that article a form of coordination between undertakings which, without having reached the stage where an agreement properly so called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition. The elaboration of an actual plan is not therefore required. The Commission maintains that even if the discussions that took place at the 1992 meeting can not be classified as an agreement, they can be classified as a concerted practice, which is just as serious an infringement.

71. The Commission considers that the London meeting and the agreement concluded there constitute the first practical manifestation of the complex and continuous infringement on which the contested decision is based. In view of the observations set out in recitals 56 to 69 of the contested decision and in particular of the fact that the information exchanges commenced at the London meeting or shortly afterwards, that conclusion is fully justified. It adds that it is unnecessary to prove that all the elements of the infringement were present or foreseen at the initial stage to establish that that agreement formed part of a single, complex and continuous infringement.

72. As regards BPB’s statement that the Commission failed to take account of the economic evidence, the Commission contends that it simply explained in recitals 329 to 402 of the contested decision that, in view of the circumstances of the case, the attempt by BPB and the other undertakings concerned to show, on the basis of economic analyses, that the competitive situation on the plasterboard market between 1992 and 1998 excluded any possibility of a restrictive agreement during that period was beside the point. The Commission states that it does not rely on mere similarity of observed conduct, nor does it use economic evidence to establish the infringement of Article 81(1) EC. Its conclusions are based on direct evidence of the anti-competitive agreement, which the economic analyses do nothing to explain away. Where the Commission makes reference, in the contested decision, to improved stability in the market concerned or price increases (as in recitals 289 and 539), the aim was to demonstrate the effects of the anti-competitive activity, not its existence. The Commission adds that the existence of an agreement can be established without the complete elimination thereby of all competition from the plasterboard market. Moreover, since the infringement established by the Commission pursued an anti-competitive purpose, it is settled case-law that there is no requirement for it to take account of the agreement’s concrete effects.

73. The Commission takes the view, in response to the applicant’s argument that ‘fierce’ competition or the ‘price war’ was bound to end for economic reasons, that that argument is not relevant in determining the reasons for which and the conditions under which the ‘price war’ actually ended and in particular whether or not anti-competitive conduct by certain operators was the reason for that development. It considers that, having demonstrated that the cartel participants’ aim was to put an end to the price war and stabilise market shares and thereby restrict competition at least in the German, French, United Kingdom and Benelux plasterboard markets, it was fully entitled to conclude, as it did in recitals 72, 196, 212, 289 and 395 of the contested decision, that that objective was largely achieved. It contends that the market instability before 1992 was described in paragraph 28 of the statement of objections and was never contested. Moreover, as is clear from recitals 212 and 395 of the contested decision, the Commission found that prices on the United Kingdom and German markets tended to rise or at least be stable, in contrast to the position prior to 1992.

Findings of the Court

74. BPB admits that the London meeting took place and that Mr [A] and the cousins of the Knauf family each expressed the view that it would be in the interests of the industry as a whole to put an end to the destructive price war. It also admits that, at that meeting or at the latest in 1992, the undertakings began to exchange overall market volume data for each principal market.

75. However, BPB disputes that an express agreement to stabilise European markets destined to last for six years was concluded at that meeting.

76. It is therefore necessary to examine whether the London meeting had an anti‑competitive object.

77. In this respect, according to recital 55 of the contested decision, BPB stated in its second reply to the request for information that, at that meeting, its representatives and those of Knauf ‘[had] reached an understanding that it was in [its] interest, [that of] Knauf[‘s] and [that of] the industry as a whole (including, ultimately, the interests of consumers) for the ruinous price war to end and for producers to attempt to compete at more sustainable economic levels’.

78. BPB subsequently argued that the term ‘understanding’ used by it should be interpreted in its most general sense as meaning a ‘consensus of views’.

79. It is settled case-law that in order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 199; Case T‑61/99 Adriatica di Navigazione v Commission [2003] ECR II‑5349, paragraph 88; and Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others v Commission [2005] ECR II‑3033, paragraph 118). As regards the form in which that common intention is expressed, it is sufficient for a stipulation to be the expression of the intention of the undertakings concerned to behave on the market in accordance with its terms (Case T‑56/02 Bayerische Hypo- und Vereinsbank v Commission [2004] ECR II‑3495, paragraph 60).

80. It follows that, in order to constitute an agreement within the meaning of Article 81(1) EC, it is sufficient that an act or conduct which is apparently unilateral be the expression of the concurrence of wills of at least two parties, the form in which that concurrence is expressed not being by itself decisive (Case C‑74/04 P Commission v Volkswagen [2006] ECR I‑6585, paragraph 37).

81. The criteria of coordination, convergence and cooperation, far from requiring the elaboration of an actual ‘plan’, must be understood in the light of the concept inherent in the Treaty provisions relating to competition, namely that each economic operator must determine independently the policy which it intends to adopt on the common market. Although that 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 strictly precludes any direct or indirect contact between such operators with the object or effect 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 (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 173 and 174, and Adriatica di Navigazione v Commission , paragraph 79 above, paragraph 89).

82. That is the case where there is a gentlemen’s agreement between a number of undertakings representing the faithful expression of such a joint intention concerning a restriction of competition. In those circumstances, the question whether the undertakings in question considered themselves bound – in law, in fact or morally – to adopt the agreed conduct is irrelevant ( HFB and Others v Commission , paragraph 79 above, paragraph 200).

83. As regards, in particular, agreements of an anti-competitive nature which are reached at meetings of competing undertakings, the Court of Justice has held that Article 81(1) EC was infringed where those meetings had as their object the restriction, prevention or distortion of competition and were thus intended to organise artificially the operation of the market (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 508 and 509).

84. The Court considers that BPB’s explanation regarding the object of the London meeting satisfies the criterion laid down by the case‑law referred to above. BPB’s statements suffice to show that Knauf and BPB both expressed their intention to put an end to a price war and therefore to restrict competition.

85. Furthermore, it must be recalled that, where an undertaking participates, even without taking an active part, in meetings between undertakings with an anti-competitive object and does not publicly distance itself from what occurred at those meetings, thus giving the impression to the other participants that it subscribes to the results of the meetings and will act in conformity with them, it may be considered as established that it participates in the cartel resulting from those meetings ( HFB and Others v Commission , paragraph 79 above, paragraph 137).

86. Furthermore, the anti‑competitive object of the London meeting is confirmed by the exchange of information which the undertakings carried out after that meeting. According to recital 58 of the contested decision, BPB stated, in its reply to the second request for information, the following:

‘[A]t that meeting [Mr [A] and the cousins of the Knauf family] agreed to exchange sales volume information for 1991, to give themselves a reliable basis going forward to monitor whether this understanding was effective (i.e. simply to give each other a more accurate picture of the overall size of the market and thus their own market share). This was necessary because there were no reliable industry statistics.’

87. BPB’s arguments that it was at most a mere attempt at an agreement must fail. The fact that BPB and Knauf expressed their common intention to put an end to the price war and to stabilise the markets in question constitutes an agreement for the purposes of Article 81(1) EC.

88. Further, as the quotation at paragraph 86 above demonstrates, BPB and Knauf executed their plan by implementing that agreement through the exchange of information on sales volumes on the four markets concerned. If those undertakings did not consider that they had concluded an agreement to put an end to the price war and to stabilise the markets concerned, they would not have needed to monitor the markets by exchanging information on sales volumes.

89. The applicant’s arguments that the Commission has not shown that there had been stability of prices or market shares cannot invalidate that conclusion.

90. In this respect, for the purposes of applying Article 81(1) EC, it is sufficient that the object of an agreement should be to restrict, prevent or distort competition irrespective of the actual effects of that agreement. Consequently, in the case of agreements reached at meetings of competing undertakings, that provision is infringed where those meetings have such an object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 145). Undertakings which conclude an agreement whose purpose is to restrict competition cannot, in principle, avoid the application of Article 81(1) EC by claiming that their agreement was not intended to have an appreciable effect on competition.

91. Moreover, BPB’s assertion that the London meeting did not have any effects is contradicted by its reply to the statement of objections, in which it stated that there had been a turning point in prices in 1992. BPB also admits that the London meeting may have been a factor in accelerating the end of the price war. However, it submits that the commercial and economic reasons set out in the application show that it was not the only cause.

92. The Court considers that the applicant’s admission that the London meeting was a factor in accelerating the end of the price war supports the interpretation that the object of the London meeting was anti‑competitive. Even if there were other economic reasons which prompted the end of the price war, that does not call in question the anti‑competitive object of the London meeting, which was to raise prices and to reduce the intensity of the competition between the undertakings concerned.

93. Lastly, account must be taken of the fact that the applicant stated, in its reply to the statement of objections, that it did not object to the Commission’s categorising that meeting as an infringement of Article 81(1) EC. It also admitted, in its reply to an oral question put by the Court, that the London meeting constituted an infringement of Article 81(1) EC.

94. It follows that the Commission was right to find that, at the London meeting, BPB and Knauf had expressed their common intention to put an end to the price war and to stabilise the market concerned. This complaint cannot therefore be upheld.

Exchanges of information concerning quantities sold in Germany, France, the Benelux and the United Kingdom

Arguments of the parties

95. The applicant admits that, either at the London meeting or some time later in the same year, Mr [A] and the cousins of the Knauf family agreed to exchange highly aggregated sales volume data for 1991. However, Mr [A] said that that had been done to enable him to assess whether there was any ‘new mood’ in the industry, by giving him a more accurate picture of the size of the market and thus of the applicant’s own market share. The applicant also admits that those information exchanges may have contributed to ending the price war. However, the applicant denies that the exchanges decided upon by Mr [D] – director of Gyproc and CEO of BPB from 1994 to 1999 – as from 1993 had any bearing on the first two annual information exchanges. The applicant also denies that those exchanges were a method of monitoring any agreement or understanding between producers. In this respect, the applicant claims that the Commission produced no evidence of any command and control structure in relation to the implementation of the cartel. The applicant states that it would have been informed by customers if it was being undercut on price by its competitors and would not have waited months to learn, by the exchange of information, of developments in market shares.

96. The applicant states that the Commission ignores the evidence concerning the nature of the data which was actually exchanged. In that connection, the applicant states that exchanges were initially annual, then half-yearly, but never more than quarterly. Moreover, the data were highly aggregated, being the total square metre surface area of all plasterboard products sold in the period in question, of all thicknesses, dimensions and specifications, expressed as a single figure. It also observes that there are enormous price variations between products. Moreover, the information related to national markets and, in the case of the Benelux, was wider than that. Furthermore, the information was not exchanged at regular intervals. For those reasons, the applicant considers that the exchanges could not constitute a mechanism for close surveillance of the market.

97. The applicant considers that the Commission’s argument is also undermined by the fact that market shares developed considerably over the period in question. In addition, it states that price cutting had taken place. Moreover, the Commission has produced no evidence of any systematic attempt to adjust market shares or prices. The applicant takes the view that all these factors are solid evidence of the lack of any cartel in this case.

98. The Commission states that the applicant does not deny the existence of those exchanges, but contests their purpose. It considers that it responded in detail to those arguments in recitals 104 to 170 of the contested decision.

99. The Commission states that the argument relating to the absence of any ‘command and control’ structure is irrelevant. The case-law shows that the fact that no measures are taken to force undertakings to adhere to agreements does not mean that there is no infringement. The absence of evidence of such measures simply shows that no retaliatory measures were necessary.

100. The Commission repeats that it has never asserted that the cartel completely excluded all competition or that there were fixed quotas or fixed market shares. The important achievement of the cartel was overall market equilibrium and stability, not necessarily static market shares in particular markets.

Findings of the Court

101. It should be noted that the applicant stated, in its reply to the statement of objections, that it did not object to the Commission’s categorising those exchanges of information as an infringement of Article 81(1) EC. It also admitted, in its reply to a written question put by the Court, that the exchanges of information concerning quantities sold in Germany, France, the Benelux and the United Kingdom constituted an infringement of Article 81(1) EC. The applicant none the less disputes certain assessments made by the Commission in the contested decision.

102. BPB admits that, either at the London meeting or some time later in the same year, Mr [A] and the cousins of the Knauf family agreed to exchange aggregated sales volume data for 1991. Mr [A] said that that was done to enable him to assess whether there was any ‘new mood’ in the industry, by giving him a more accurate picture of the size of the market and thus of BPB’s own market share.

103. BPB also admitted that the information exchanges effected by Mr [A] in 1992 and 1993 in relation to the 1991 and 1992 data may have contributed to ending the price war. However, BPB denies that those information exchanges were a monitoring mechanism for a wider anti-competitive purpose.

104. BPB also admits that, under Mr [D]’s direction, the information exchanges on sales volumes on the four markets concerned became half‑yearly from 1993 and quarterly from 1995. None the less, it claims that the exchanges organised by Mr [D] were unrelated to the first two annual exchanges of information effected by Mr [A].

105. Thus, since the applicant has admitted the existence of the information exchange in question, its arguments seek only to call in question the Commission’s legal assessment of undisputed facts.

106. According to the case-law, agreements on the exchange of information are incompatible with the rules on competition if they reduce or remove the degree of uncertainty as to the operation of the market in question with the result that competition between undertakings is restricted (Case C‑238/05 ASNEF-EQUIFAX and Administración del Estado [2006] ECR I‑11125, paragraph 51).

107. It is inherent in the Treaty provisions on competition that every economic operator must determine autonomously the policy which it intends to pursue on the common market. Thus, according to that case-law, such a requirement of autonomy precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to give rise to conditions of competition which do not correspond to the normal conditions of the market in question, taking into account the nature of the products or the services provided, the size and number of the undertakings and also the volume of the market ( ASNEF-EQUIFAX and Administración del Estado , paragraph 106 above, paragraph 52).

108. As regards the lawfulness of the exchange of information, it is apparent from the case‑law that, on a truly competitive market, the fact that an economic operator takes into account information on the operation of the market, made available to it under the information exchange system, in order to adjust its conduct on the market, is not likely, having regard to the atomised nature of the supply, to reduce or remove for the other operators all uncertainty about the foreseeable nature of its competitors’ conduct. However, on a highly concentrated oligopolistic market, the exchange of information on the market is such as to enable operators to know the market positions and strategies of their competitors and thus to impair appreciably the competition which exists between the operators (Case C‑7/95 P Deere v Commission [1998] ECR I‑3111, paragraphs 88 and 90).

109. Subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market. That is all the more the case where the undertakings concert together on a regular basis over a long period ( HFB and Others v Commission , paragraph 79 above, paragraph 216).

110. In the present case, the plasterboard market was oligopolostic and the applicant does not dispute that this was the case. It is therefore necessary to ascertain whether, in the light of that market characteristic, the exchanges of information reduced or removed the degree of uncertainty of the undertakings concerned as to the operation of the market in question and thus restricted competition on that market.

111. The applicant takes the view that, as organised, the exchange of information made it possible to achieve only one objective, namely to check in broad terms the individual estimates of the market conditions and, in particular, the volume of that market.

112. Such an explanation is not convincing. It is apparent from the explanation given by Mr [D] in his statement of 9 July 2001 in order to justify the exchanges of information that, whilst the data were useful to see the size of the market, they also made it possible to determine market trends and competitors’ market shares so that ‘one was not operating completely in the dark’.

113. For the same reasons, the applicant’s argument that the market was transparent and the data could be collected on the market must be rejected.

114. That finding is borne out by BPB’s reply of 28 October 1999 to the second request for information, referred to in recital 58 of the contested decision, according to which:

‘[The representatives of BPB and Knauf] agreed to exchange sales volume information for 1991, to give themselves a reliable basis going forward to monitor whether this understanding was effective (i.e. simply to give each other a more accurate picture of the overall size of the market and thus their own market share). This was necessary because there were no reliable industry statistics.’

115. In this respect, proof of the collusory nature of the exchange of information is even more cogent in the light of BPB’s reply to the statement of objections. According to 106 of the contested decision:

‘BPB subsequently specified that the objective of the agreement to exchange information with Knauf was to provide Mr [A] with “a basis to assess whether there was a new mood in the industry”, i.e. that “the information exchange, at a high level, would provide the degree of mutual assurance that the price war was ending”. BPB has moreover explicitly acknowledged that the purpose of the information exchanges effected by Mr [A] was to put an end to the fierce competition prevalent in the plasterboard industry in the early 1990s: “the subsequent two exchanges of historical data effected by Mr [A] may have served, and have been intended to serve, to assist the ending of the price war”.’

116. The applicant’s argument that there was no restriction of competition in the absence of any informative value of the sales data exchanged, given that the figures had been communicated in a very global and imprecise form without being broken down according to the different types of plasterboard, is irrelevant in so far as the information exchanges between the undertakings in question were intended to monitor that their respective market shares remained stable or, at the very least, did not diminish. Since the applicant and Knauf had expressed a common intention to put an end to the price war and to stabilise the markets in question at the London meeting, it sufficed, in order to attain that objective, that the undertakings in question knew that by terminating the price war they would not lose market shares. To that end, the general sales data, which made it possible to calculate market shares, were sufficient. That also explains why the figures did not need to be broken down according to the different types of plasterboard.

117. As regards the applicant’s argument that the exchange of data was not effected at regular intervals and, for that reason, it was not a monitoring mechanism, it is clear that the anti‑competitive nature of that exchange of information, the objective of which – as clearly described by the applicant itself in its reply to the statement of objections – was to put an end to the price war, can in no way be called in question.

118. As regards BPB’s argument distinguishing Mr [A]’s information exchanges in 1991 and 1992 from those of Mr [D], it is a mere assertion which is devoid of any real foundation. In his statement, Mr [A] said that he had counselled Mr [D] in 1993 against making the exchanges too frequent, which shows that both were well aware that those exchanges were being made. The mere fact that the exchanges of information were effected by two different persons is thus explained by the change of person at the head of BPB. Moreover, the reason for those exchanges of information, in particular as regards their object, is identical. In his account of the exchanges which he effected from 1993, Mr [D] states that, even in highly aggregated form, the information was useful to see the size of the market and the trends and that knowledge of competitors’ market shares meant that ‘one was not operating completely in the dark’.

119. In conclusion, the collusive nature of the exchanges of information concerning quantities sold in Germany, France, the Benelux and the United Kingdom from 1992 to 1998 is sufficiently established.

The exchanges of information on sales volumes in the United Kingdom

Arguments of the parties

120. The applicant maintains that the purpose of the United Kingdom information exchange was to have a better view of the total size of the United Kingdom market for plasterboard and of its market share.

121. The applicant claims that, even if the data exchanged were monthly data on highly aggregated sales volumes, the exchanges were not monthly but were sporadic and related to information concerning several months.

122. The Commission replies that it does not claim that the exchanges occurred on a monthly basis but simply that they remained remarkably consistent over time (seven successive years) and that the assertions that the exchange was an irregular ad hoc exchange are contradicted by the content of the table kept by Mr [N], managing director of British Gypsum (‘BG’), the subsidiary of BPB in the United Kingdom, from which the existence of a regular flow of information can be inferred.

Findings of the Court

123. It should first be noted that the applicant stated in its reply to the statement of objections that it did not object to the Commission’s categorising the exchanges of data on sales volumes in the United Kingdom as an infringement of Article 81(1) EC. It also admitted in its reply to a written question put by the Court that those exchanges had taken place from 1992 until the beginning of 1998 and constituted an infringement of Article 81(1) EC.

124. Next, it should be noted that in response to a written question of the Court the Commission confirmed that the exchange of information on sales on the United Kingdom market and that on the sales of the four markets concerned were both elements of the single and continuous infringement, even if their anti‑competitive effects might have duplicated and mutually reinforced one another in so far as they related to the United Kingdom market. Given that the applicant disputes the object and the frequency of the exchanges of sales volume data on the United Kingdom market, it is necessary to consider whether the contested decision is vitiated by errors regarding that exchange.

125. As regards the object of the exchange of sales volume data on the United Kingdom market, the Commission found, at recital 171 of the contested decision, that it was identical to that of the exchange of information on sales volumes on the four markets concerned. However, the applicant asserts that its object was to have a better view of the total size of the United Kingdom market for plasterboard and of its market share.

126. The applicant’s explanation does not alter the anti‑competitive nature of the information exchange, having regard to the general context of the infringement in question, which was characterised by the pursuit of the objective, expressed at the London meeting, of putting an end to the price war.

127. The applicant’s assertion that the fact that the data were compiled on a monthly basis in the tables does not show that the exchange of those data also took place with the same frequency is immaterial in the present case. Even if the sales volume data were exchanged less frequently, that would not invalidate the conclusion that such an exchange was anti­‑competitive for the same reasons as those set out regarding the exchange of data on the four markets concerned. In any event, the applicant has not adduced any evidence showing that, although the data were compiled monthly, the exchange did not take place monthly. In those circumstances, it must be concluded that the applicant has failed to show that the Commission’s finding at recital 194 of the contested decision, that the systematic and detailed nature of Mr [N]’s table was based on a regular flow of information, is vitiated by error.

128. It follows that the Commission’s assessment concerning the exchange of sales volume data on the United Kingdom market is not vitiated by any error.

Exchanges of information on price rises in the United Kingdom from 1992 to 1998

Arguments of the parties

129. The applicant claims that the Commission made no finding that the parallel price rises were other than independently arrived at.

130. The evidence relied on by the Commission consists, first, of a conversation in 1996 between the regional directors of Knauf and BG, second, a conversation in 1998 between Lafarge’s sales director and a member of BG’s sales staff and, third, one or two communications from Mr [N] to his opposite numbers to inform them of price rises.

131. The applicant maintains that the Commission attached unjustified importance to those isolated events. Moreover, the first two contacts were two years apart and the discussions took place in the course of social events. In addition, there were only one or two communications by Mr [N], and, contrary to the Commission’s allegations, it was not a question of exchanges of information but of unilateral communications.

132. The applicant contests the Commission’s conclusion that those contacts corroborate the existence of a single and continuous infringement. The applicant submits that they took place only between November 1996 and March 1998 and related only to the United Kingdom.

133. The Commission states that it never alleged that prices had been agreed or negotiated. It takes the view that the very fact that the contacts concerning certain price rises were reported internally indicates their importance.

134. The Commission considers, referring to recitals 471 to 477 of the contested decision, that exchange of information to be a concerted practice which was part of the particular manifestations of the complex and continuous agreement having as its object the restriction of competition at least in the four main European plasterboard markets.

Findings of the Court

135. As is apparent from the application and an examination of BPB’s cooperation, it was BPB which informed the Commission of those exchanges on price rises in the United Kingdom. Moreover, the facts mentione d in the contested decision are not contested by BPB.

136. Account must also be taken of the fact that the applicant stated in its reply to the statement of objections that it did not object to the Commission’s categorising those contacts as an infringement of Article 81(1) EC. In its reply to a written question of the Court, the applicant also admitted that the fact that Mr [N] had, once or twice, informed Knauf and Lafarge of the list price increases in the United Kingdom constituted an infringement of Article 81(1) EC.

137. However, BPB attempts to qualify the anti‑competitive nature of those exchanges by stating that the conversations which took place at the golf days were just a report of industry gossip and that the memoranda recording them present this information as such. Further, the information was imparted unilaterally. Lastly, it submits that the price rises would have been known in any event through market intelligence and that the exchanges of information were merely the communication of decisions which had already been made. Moreover, the communication related only to list prices and did not reflect the ‘net net’ prices (net of discounts).

138. It is apparent from recitals 198 to 200 of the contested decision that, as regards the period prior to 7 September 1996, the price rise announcements were virtually simultaneous in four cases. Thus, BG’s announcement on 21 July 1992 (with effect from the end of August 1992) was followed by Lafarge’s (Redland’s) announcement of 31 July 1992 (with effect from 31 August 1992). Knauf announced its new prices on 3 August 1992 (with a new price list for September 1992).

139. In November 1993 BPB announced a 12% rise with effect from January 1994. Lafarge followed this announced rise but Knauf did not follow it in full.

140. On 29 September 1994 Knauf announced a rise of approximately 6.5% with effect from 1 March 1995 and on 2 December 1994 BPB announced a 9% rise with effect from 27 February 1995. That rise was followed by the announcement of an identical rise by Lafarge on 6 January 1995, with effect from the same date.

141. On 22 September 1995, BG announced a 12% price rise for standard board to enter into force on 1 January 1996. This announcement was followed by Lafarge, which announced the same increase on 13 October 1995 with effect from 1 January 1996 and by Knauf, which announced the same increase on 27 October 1995 with effect from the same date.

142. Thus, as regards the period prior to 7 September 1996, the price rises of BPB, Lafarge and Knauf succeeded one another at very close intervals or were even simultaneous.

143. It must therefore be ascertained whether the near-simultaneity of the price rise announcements and the parallelism of the prices announced, as found, constitute a sound, precise and consistent body of evidence of prior concertation designed to inform the competing undertakings of the price rises. Parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct. It is necessary to bear in mind that, although Article 81 EC prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors (Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraph 71).

144. In the present case, even if the intervals between the various price rise announcements may have enabled the undertakings to ascertain those price rises by information from the market and even if those rises were not always exactly of the same level, the near-simultaneity of the price rise announcements and the parallelism of the prices announced amount to strong evidence of concerted action prior to those announcements, since those rises were made in a context characterised by the fact that, as the Commission found in the contested decision, the applicant and Knauf agreed at the London meeting at the beginning of 1992 to put an end to the price war on the four European markets.

145. In any event, the fact remains that, as regards the exchange of data on price increases on the United Kingdom market, the Commission concluded, at recital 476 of the contested decision, only that there were contacts – acknowledged by BPB, Knauf and Lafarge – which accompanied certain price increases, referring in this respect to recital 211 of the contested decision. Otherwise, as is apparent from recital 210 of that decision, the Commission stated that it could only note the parallel behaviour between undertakings which were also engaged in other collusive contacts, without inferring from this that that parallel behaviour had necessarily been preceded by concerted action. Further, by its use of the word ‘nevertheless’ in the English, French and Dutch versions of recital 211 of the contested decision, it clearly placed that mere parallelism in the context of the admitted existence of contacts preceding the price rise announcements.

146. As regards the period after 7 September 1996, the existence of contacts between the competitors on prices rises in the United Kingdom is demonstrated by the following documentary evidence.

147. First, it is apparent from an internal BG memorandum that, during the weekend of 7 and 8 September 1996, Knauf announced that it would follow the BG price increase initiative when BG’s intentions were expressly stated. As is clear from recital 201 of the contested decision, that discussion took place before BG sent out announcements of a price rise on 9 September 1996.

148. Further, that increase was followed, on 20 September 1996, by that of Lafarge.

149. Second, the near-simultaneity of the price rise announcements and the parallelism of the prices announced continued. Thus the Commission found, at recitals 203 and 204 of the contested decision, that on 3 June 1997 BG had announced a rise of 3.8% for standard board with effect from 1 August 1997. Lafarge announced a rise of 3.7% with effect from 4 August 1997 and Knauf announced a rise of 3.7% with effect from the same date as Lafarge. Further, on 27 January 1998, BG announced a rise of 4.4% with effect from 1 April 1998. Lafarge announced a rise of 4.1% with effect from 6 April 1998 and Knauf announced an identical rise with effect from 1 April 1998.

150. Third, according to recital 205 of the contested decision, before the announcement on 8 September 1998 of BG’s 5% price rise with effect from 1 November 1998, a Lafarge representative mentioned to a member of British Gypsum’s staff that, for budgetary reasons, Lafarge had decided not to follow the price increase planned for the beginning of January of the following year. However, if the undertakings concerned had not agreed to exchange information on price rises, Lafarge would not have needed to inform the BG representative that it was not going to follow the planned increase.

151. Fourth, BPB acknowledged what it calls ‘isolated instances’ when Mr [N] had telephoned the managing directors of Lafarge and Knauf in the United Kingdom to inform them of BG’s pricing intentions and the planned range of increases (recital 207 of the contested decision). Even though BPB does not indicate even the approximate date of these telephone calls, and even though it terms them ‘pure courtesy calls’, they show that the competing undertakings were in contact regarding price rises.

152. In those circumstances, the Commission was right to find, at recital 477 of the contested decision, that the contacts on price rises on the United Kingdom market constituted a concerted practice prohibited by Article 81(1) EC.

153. That finding cannot be invalidated by the argument that it was unilateral conduct. It is true that the concept of concerted practice does in fact imply the existence of reciprocal contacts. However, that condition is met where the disclosure by one competitor to another of its future intentions or conduct on the market is requested or, at the very least, accepted by the latter ( Cement , paragraph 32 above, paragraph 1849).

154. As regards the applicant’s claims that the price information transmitted was known by the customers of the undertaking concerned before it was transmitted to the competitors and that, therefore, the information disclosed could already have been collected on the market by those competitors, it should be recalled that the mere fact of receiving information concerning competitors, which an independent operator preserves as business secrets, is sufficient to demonstrate the existence of an anti‑competitive intention (Joined Cases T‑204/98 and T‑207/98 Tate & Lyle and Others v Commission [2001] ECR II‑2035, paragraph 66). Moreover, the discussions for which the Commission found direct evidence or whose existence was acknowledged by the applicant occurred before the official price rise announcements.

155. In view of the circumstances of the present case, the Commission has shown to the requisite legal standard that the three undertakings informed one another of price rises on the United Kingdom market during the period 1992 to 1998.

The stabilisation of German market shares

Arguments of the parties

156. The applicant admits that the objective of the Versailles meeting was to arrive at an agreement to stabilise German market shares. However, that attempt was unsuccessful. It claims that Gyproc’s subsequent statement supports its statement.

157. The applicant also admits that at the meetings in Brussels and The Hague the discussions continued to focus on the market shares of each undertaking in question in Germany. Further, the latter discussions were preceded by a further exchange of market share data for the first four months of 1998. However, those discussions likewise did not yield any results.

158. The applicant states that although the parties met and had a common interest in establishing stability in the German market, they did not make a common commitment. However, the applicable law requires such a commitment. The applicant claims that undertakings may share a common view of what they would like to see occur but unless an undertaking, by contact and conduct, acts in a manner which unmistakably conveys to the other that it proposes to act in a certain way and that it feels under an obligation to do so, that does not constitute an agreement in law. It contends that the Commission cannot consider that negotiations are equivalent to an agreement.

159. The applicant claims that the Commission’s approach consists in asserting that a common objective is evidenced by ‘manifestations’ of an agreement within the meaning of Article 81(1) EC and that the ‘manifestations’ themselves are evidence of a common objective. According to the applicant, that argument is devoid of any legal merit.

160. The applicant submits that the Commission was wrong to consider that the information exchange system that the undertakings in question had organised in November 1996 with the assistance of an independent expert (‘the information exchange system’) was more sophisticated and that it supplied them with more accurate and verifiable information than the other exchanges. It states that the producers provided information to the independent expert, but that he did not carry out any verification of it. Moreover, the exchanges within the information exchange system were no more frequent than those between the CEOs of the undertakings in question, both having been quarterly in the period from 1996 to 1998. Moreover, the exchanges made within the information exchange system provided the undertakings in question with less information than those between the CEOs, given that the independent expert provided those undertakings only with a total market size figure.

161. It also claims that the fact that the information exchange system was launched after the Versailles meeting was a coincidence.

162. The Commission contends that even if the undertakings did not succeed in concluding an agreement as to how the German market could be shared between them, they expressed a common wish to restrict competition in the plasterboard market by sharing the German market or, at least, stabilising it. According to it, the mere disclosure by an undertaking of the fact that it does not want to increase its market share is sufficient to inform competitors of an essential element in its strategy and is manifestly anti-competitive. It submits that the undertakings did feel bound to act in a particular way, as demonstrated by the continuous discussions in that sense.

163. The Commission submits that the only plausible explanation for an information exchange which the participants wish to keep secret and which is based on figures allegedly of limited value for defining future strategy is that there is a tacit agreement between the undertakings in question to respect traditional flows.

164. The Commission considers that even if market shares in Germany continued to fluctuate after the Versailles meeting in 1996, those fluctuations were minimal and are consistent with its findings, in so far as it never maintained that there was a strict market sharing agreement.

165. The Commission states that even if the information exchange system itself is not contrary to Community law, it should not be examined in isolation but in the light of the fact that it was set up to supply more accurate and verifiable information. Moreover, BPB’s assertion that the information provided was no more accurate than that already being exchanged does not explain why BPB and the other undertakings participated in the system. Furthermore, the explanation put forward by BPB, that the undertakings wanted an accurate measure of the size of the German market, merely supports the Commission’s interpretation.

Findings of the Court

166. It is apparent from the applicant’s arguments that it does not dispute the existence of the Versailles, Brussels and The Hague meetings. Further, it admits that it participated in those meetings and discussed the situation on the German market. It also acknowledges that a proposal was made at the Versailles meeting in order to arrive at an agreement to stabilise German market shares at their 1995 levels.

167. However, it submits that the Commission has not shown that the undertakings in question made a common commitment. In its submission, the applicable law requires that there be such a commitment, but in the present case there were merely negotiations with a view to securing an agreement.

168. Consequently, the question on which the applicant and the Commission disagree concerns the legal classification of the Versailles, Brussels and The Hague meetings and the information exchange system.

169. As regards the applicant’s argument seeking to demonstrate that there was no agreement on German market shares, it should be noted that in the contested decision the Commission found, at recital 469, in fine , that ‘an agreement [had been] concluded between the [undertakings concerned], who aimed to divide up the German market between them or at least to stabilise it, this agreement being a particular manifestation of the complex, continuous agreement having as its object the restriction of competition on the plasterboard market at least in the four major European markets’. Moreover, it is apparent from recitals 462, 463, 465 and 469 of the contested decision that the Commission found that, irrespective of whether such an agreement had been concluded or not, the undertakings in question, by expressing their common intention to divide up the German market between them or at least to stabilise it, had concluded an agreement within the meaning of Article 81(1) EC.

170. Thus, even if the Commission had not succeeded in showing that the undertakings penalised had concluded an agreement, in the strict sense of the term, as to how the German market could be shared between them, it would suffice if it were clear from undisputed facts that the undertakings in question knowingly substituted for the risks of competition practical cooperation between them by remaining in direct contact with a view to stabilising the German market. Consequently, it is necessary to ascertain whether that is the case here.

171. The existence of the Versailles meeting of June 1996 is not disputed, nor the fact that, during that meeting, the undertakings in question disclosed their real sales figures for 1995, that they discussed the stabilisation of their German market shares and that Gyproc was not satisfied with the market share that the other undertakings were offering it.

172. BPB also admits the existence of the Brussels meeting of 4 December 1997, but states that it was also an opportunity to discuss the stabilisation of the German market.

173. Nor does BPB dispute that The Hague meeting of May 1998 took place. However, it submits that, even if the object of the talks was the situation in Germany, they did not yield any concrete results. In this respect, it is apparent from recital 257 of the contested decision that, according to Gyproc, the participants exchanged their figures on sales volumes in Germany for the first four months of 1998, that each participant mentioned the share of the German market he wished to have and that, since the total of those market shares represented 101%, the participants proposed that Gyproc limit its market share to 11%, but Gyproc refused.

174. Consequently, it follows from the foregoing that, even if a specific agreement on the sharing of the German market could not be concluded either at the Versailles meeting or at the subsequent Brussels and The Hague meetings, the four undertakings in question expressed a common intention to stabilise the German market, and therefore to restrict competition. Thus, the Versailles meeting proves the existence of an agreement on the principle of sharing the German market between BPB, Knauf, Lafarge and Gyproc, as the Commission asserted at recital 264 of the contested decision.

175. It is not contested by BPB that, at the Versailles meeting, notwithstanding the position adopted by Gyproc, the three other undertakings, Knauf and Lafarge and itself, informed each other of the market shares they agreed to and that those market shares corresponded to the shares those undertakings actually held. In this respect, it should also be recalled that the undertakings do not dispute having exchanged their sales figures for 1995 at the Versailles meeting.

176. Account must also be taken of the information exchange system. The existence of that system supports the Commission’s contention that those undertakings wished to stabilise the German market. Each producer gave its figures to the independent expert on a confidential basis and the results were compiled by it, giving an aggregate figure, which was then sent to the participants. This figure enabled each producer to calculate its own market share, but not that of the others. The figures were supplied every quarter and concerned the sales figures of each producer. In addition, the producers supplied the independent expert, on a confidential basis, with the figures for January to December 1995 and for January to September 1996.

177. The information exchange system thus enabled the undertakings in question to check whether their market shares on the German market were remaining relatively stable.

178. As regards the legal assessment of that situation, it must be recalled that the disclosure of information to one’s competitors in preparation for a cartel suffices to prove the existence of a concerted practice within the meaning of Article 81 EC (see, to that effect, Case T‑148/89 Tréfilunion v Commission [1995] ECR II‑1063, paragraph 82).

179. The concept of a concerted practice within the meaning of Article 81(1) EC refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them ( Suiker Unie and Others v Commission , paragraph 81 above, paragraph 26, and Ahlström Osakeyhtiö and Others v Commission , paragraph 143 above, paragraph 63).

180. The criteria of coordination and cooperation necessary for determining the existence of a concerted practice, far from requiring an actual ‘plan’ to have been worked out, are to be understood in the light of the concept inherent in the provisions of the EC Treaty on competition, according to which each economic operator must determine independently the policy which it intends to adopt on the common market and the conditions which it intends to offer to its customers ( Deere v Commission , paragraph 108 above, paragraph 86, and Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 82).

181. While it is true that this requirement of independence does not deprive operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact between them, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market ( Deere v Commission , paragraph 108 above, paragraph 87, and Thyssen Stahl v Commission , paragraph 180 above, paragraph 83).

182. Further, as the Court of First Instance held in Cement , paragraph 32 above (paragraph 1852), in order to prove that there has been a concerted practice, it is not necessary to show that the competitor in question has formally undertaken, in respect of one or several other competitors, to adopt a particular course of conduct or that the competitors have colluded over their future conduct on the market. It is sufficient that, by its statement of intention, the competitor eliminated or, at the very least, substantially reduced uncertainty as to the conduct to expect from it on the market.

183. In this respect, the Commission rightly took the view, at recital 466 of the contested decision, that the mere disclosure by an undertaking of the fact that it does not want a larger market share than the one it already holds is sufficient to inform competitors of an essential element of its strategy.

184. Moreover, it must be recalled that the market in question is a highly concentrated oligopolistic one. On such a market, the exchange of information is liable to enable undertakings to be aware of the market positions and business strategies of their competitors and thus to impair appreciably the competition which exists between economic operators ( Deere v Commission , paragraph 106 above, paragraphs 88 to 90, and Thyssen Stahl v Commission , paragraph 180 above, paragraph 84).

185. Further, as regards the applicant’s argument that the Commission’s reasoning is circular, it must be recalled that all the elements of the case in question must be examined, not separately as isolated infringements, but in the overall context, as possible elements of a single infringement having as its object the restriction of competition on the plasterboard market in the four European markets concerned. According to the case‑law, the items of evidence on which the Commission relies in the Decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see, to that effect, Case 48/69 ICI v Commission [1972] ECR 619, paragraph 68).

186. Moreover, in the light of the general context, the objective of stabilising the markets concerned, the exchange of information on the German market enabled the undertakings in question to check that their competitors’ market shares remained stable.

187. Lastly, as regards the applicant’s argument that, in the absence of an agreement, the Commission ought at least to have proved the effects on the market, it must be recalled that, for the purposes of applying Article 81(1) EC, there is no need to take account of the actual effects of an agreement once it appears that its object is to restrict, prevent or distort competition within the common market ( Aalborg Portland and Others v Commission , paragraph 36 above, paragraph 261).

188. Likewise, a concerted practice falls within Article 81(1) EC even where there are no anti-competitive effects on the market. First of all, it follows from the very wording of that provision that, as in the case of agreements between undertakings and decisions of associations of undertakings, concerted practices are prohibited, independently of any effect, where they have an anti-competitive object (Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, paragraphs 137 and 138).

189. Next, although the very concept of a concerted practice presupposes certain conduct by the participating undertakings on the market, it does not necessarily mean that that conduct should produce the specific effect of restricting, preventing or distorting competition ( Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission , paragraph 188 above, paragraph 139).

190. In the light of the overall context of the case, the Court finds that, on the basis of the undisputed facts, the Commission has demonstrated to the requisite legal standard that even if the undertakings in question did not succeed in concluding a specific agreement on sharing the German market between them, they did express their common intention to conduct themselves on that market in a specific manner, namely to restrict competition by stabilising that market.

Exchanges of information on price rises in Germany

Arguments of the parties

191. The applicant contests the Commission’s allegation that the four producers kept each other informed of their intentions or that there was coordination concerning the dates and levels of the planned price increases in the period from the end of 1994 to September 1998. It considers that the Commission has not adequately proved its allegations. The fact that competition continued in the German market shows, on the contrary, that producers continued to operate independently. In any event, the contacts in question cannot prove the existence of a common wish or be evidence of an agreement concluded in 1992.

192. As regards the alleged direct contact that it had with competitors concerning price rises in Germany, BPB stated that it had not sent copies of its own price increases to its competitors. As regards the sending by Knauf of its price list to its competitors, such information cannot constitute collusion on prices because the letters concerned price rises which were already widely known or anticipated in the market. Moreover, list prices were frequently reduced by the granting of discounts.

193. The applicant disputes that the Lafarge memorandum of 17 December 1996 was drawn up following the discussion of prices between Mr [V], commercial director at Rigips, the applicant’s German subsidiary, and Mr [X], managing director of Lafarge Gips. It has always denied the existence of that discussion. Moreover, it rejects the Commission’s conclusion that that memorandum is evidence of direct contacts between the producers. So far as concerns the parallelism of the price increases, the applicant states that, in an oligopolistic market, it is normal for undertakings to follow competitors’ prices and act in parallel, at least in respect of list prices. However, competition remained vigorous at the level of net net prices.

194. With regard to the Lafarge memorandum of 7 October 1998, the applicant considers that it describes the normal mechanism of price increases in an oligopolistic market. It submits that the memorandum discloses a number of facts which contradict the Commission’s allegations, such as the fact that producers granted discounts even after raising list prices, the fact that Rigips announced an increase eight weeks before the date of the memorandum without the other producers following that increase, the fact that there was uncertainty about competitors’ reactions to a price increase, the fact that most price increases were limited during the previous years and that until 1993–1994 Lafarge attempted to gain market share.

195. As regards the Knauf internal memorandum of 15 November 1993, the applicant claims that, even if that memorandum recommended the adoption of a course of action which might be anti-competitive, that does not mean that that course of action was actually adopted.

196. As regards the Rigips internal memorandum of October 1994, the applicant submits that the phrase ‘it is expected that the prices will be frozen on this level’ does not disclose any collusion but merely records Rigips’ assessment of the outlook for price developments.

197. As regards the price increase of 1 December 1995, the applicant denies that the failure of that rise was the reason for the Versailles meeting. It contends that the fall in prices from December 1995 to June 1996 is in fact evidence of the absence, rather than the existence, of an agreement.

198. As regards the September 1997 price increase, the applicant denies having participated in the attempts made by other producers to avoid ‘poaching’ of customers. The applicant submits that, even if the producers had discussions on market sharing, those discussions did not yield any results. Thereafter, competition continued in the market and, therefore, the proposed September 1997 list price increase failed.

199. As regards the September 1998 price rise, the applicant maintains that it did not participate in any collusion between producers. It argues that the Commission’s only evidence regarding it is the fact that it received a copy of a letter from Knauf concerning a price increase. However, that adds nothing to the admission by Knauf that it occasionally sent letters to its competitors informing them of a price increase. In addition, it denies having received a communication from Gyproc. Thus, the Commission’s assertion that the September 1998 price increase constituted a further manifestation of collusion in which the applicant participated in the German market is unsupported by evidence.

200. As regards the Lafarge memorandum of 7 October 1998, the Commission contends that it was used not to decide whether there were contacts between the undertakings in question but as evidence of the fact that price increases followed a particular pattern. The fact that the announced price increases were not always reflected in achieved increases in transaction prices does not mean that the contacts established were not illegal or that they had no effect. It also considers that the fact that Lafarge tried to gain market share until 1993–1994 does not call in question its findings in that respect, since it merely found that there was coordination of price increases from the end of 1994 or the beginning of 1995.

201. As regards the fact that Knauf sent its price lists to its competitors, the Commission refers to recitals 313, 314 and 472 to 474 of the contested decision.

202. The Commission accepts that the Knauf internal memorandum of 15 November 1993 does not describe a course of action already adopted, but rather recommends a course of conduct. However, the content of that memorandum illustrate the attitudes within Knauf which led to the later contacts between competitors, which the Commission has proven and which clearly corroborate the Commission’s findings that those contacts were anti-competitive. They also cast light on the motives underlying those later contacts.

203. As regards the Rigips internal memorandum of October 1994, the Commission contends that the context in which it was written, including the fact that it is dated one month before letters announcing the February 1995 price increases, is not just evidence that the author of the memorandum was well informed.

204. As regards the 1 December 1995 price increase, the Commission contests the