Judgment of the Court of First Instance (Third Chamber, extended composition) of 14 May 1998. - Enso Española SA v Commission of the European Communities. - Competition - Article 85(1) of the EC-Treaty - Right to an independant and impartial tribunal - Right of the defence - Statement of reasons - Fine - Determination of the amount - Method of calculation - Mitigating circumstances - Principle of equal treatment - Principle of proportionality. - Case T-348/94.



European Court reports 1998 Page II-01875



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1 Community law - Principles - Fundamental rights - Guaranteed by the Community judicature - European Convention on Human Rights taken into account

(Treaty on European Union, Art. F(2))

2 Competition - Administrative procedure - Inapplicability of Article 6 of the European Convention on Human Rights - Observance by the Commission of procedural guarantees - Effective judicial review of Commission decisions - Independent and impartial tribunal - Unlimited jurisdiction

(EC Treaty, Arts 85 and 86; Council Regulation No 17, Art. 17; Council Decision No 88/591)

3 Community law - Principles - Rights of the defence - Observance of those rights during administrative proceedings

4 Competition - Administrative procedure - Statement of objections - Matters to be stated

(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Art. 4)

5 Acts of the institutions - Statement of reasons - Obligation - Scope

(EC Treaty, Art. 190)

6 Procedure - Application initiating proceedings - Procedural requirements - Statement of the subject-matter of the proceedings - Summary of the pleas in law relied upon

(Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

7 Competition - Agreements, decisions and concerted practices - Participation in meetings of undertakings with an anti-competitive object - Ground for concluding that an undertaking participated in the subsequent cartel, if it has not distanced itself from the decisions taken

(EC Treaty, Art. 85(1))

8 Competition - Agreements, decisions and concerted practices - Agreements and concerted practices constituting a single infringement - Undertakings to which an infringement in the form of participation in an overall cartel may be imputed - Criteria

(EC Treaty, Art. 85(1))

9 Competition - Agreements, decisions and concerted practices - Infringement with the object of restricting competition on a particular geographical market - Whether geographical market must first be defined - No such obligation

(EC Treaty, Art. 85(1))

10 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines on several undertakings for an infringement of the competition rules

(EC Treaty, Art. 190; Council Regulation No 17, Art. 15)

11 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Aggravating circumstances - Concealment of the cartel - Proof inferred from the absence of notes on meetings of cartel members

(Council Regulation No 17, Art. 15)

12 Competition - Community rules - Infringements - Intentional - Meaning

(Council Regulation No 17, Art. 15)

13 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Conduct at odds with that agreed by the cartel - Assessment

(Council Regulation No 17, Art. 15)

14 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Financial situation of the undertaking concerned - Excluded

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

15 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - No measures to monitor the implementation of a cartel - Excluded

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

16 Competition - Fines - Amount - Methods of calculation - Conversion into ecus of the undertakings' turnover figure for the reference year on the basis of the average exchange rate over the same year - Whether permissible

(Council Regulation No 17, Art. 15)

17 Competition - Fines - Amount - Determination thereof - Criteria - Gravity and duration of the infringements - Criteria to be applied - Possibility of increasing the fines in order to strengthen their deterrent effect

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

Summary

1 Fundamental rights form an integral part of the general principles of law whose observance the Community judicature ensures. For that purpose, the Court of Justice and the Court of First Instance draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The European Convention on Human Rights has special significance in that respect.

2 The Commission cannot, when applying provisions of Community competition law, be described as a `tribunal' within the meaning of Article 6 of the European Convention on Human Rights. A decision applying the Community competition rules cannot therefore be unlawful merely because it was adopted under a system in which the Commission carries out both investigatory and decision-making functions. However, during the administrative procedure before it, the Commission must observe the procedural guarantees provided for by Community law.

Community law confers upon the Commission a supervisory role which includes the task of conducting proceedings in respect of infringements of Articles 85(1) and 86 of the Treaty. Furthermore, Regulation No 17 gives it the power to impose, by decision, fines on undertakings and associations of undertakings which have infringed those provisions either intentionally or negligently.

The requirement for effective judicial review of any Commission decision finding and punishing an infringement of the Community competition rules is a general principle of Community law which follows from the common constitutional traditions of the Member States. That principle is not infringed where such a review is carried out, pursuant to Council Decision 88/591, by an independent and impartial court, such as the Court of First Instance, which may, in accordance with the pleas on which the natural or legal person concerned may rely in support of his application for annulment, assess the correctness in law and in fact of any accusation made by the Commission in competition proceedings and which, pursuant to Article 17 of Regulation No 17, has jurisdiction to assess whether the fine imposed is proportionate to the seriousness of the infringement found.

3 Observance of the right to be heard is, in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed, a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings.

4 The statement of objections - the purpose of which is to give undertakings under investigation in application of the competition rules all the information necessary to enable them properly to defend themselves before the Commission adopts a final decision - must be framed in terms which, albeit concise, are sufficiently clear to enable the persons concerned properly to identify the conduct to which the Commission objects.

5 The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

Although pursuant to Article 190 of the Treaty the Commission is bound to state the reasons on which its decisions are based, mentioning the facts, law and considerations which have led it to adopt them, it is not required to discuss all the issues of fact and law which have been raised during the administrative procedure.

6 Under Article 44(1)(c) of the Rules of Procedure of the Court of First Instance all applications must indicate the subject-matter of the proceedings and include a brief statement of the grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to decide the case, if appropriate without other information in support. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible.

7 The fact that an undertaking does not abide by the outcome of meetings which have a manifestly anti-competitive purpose is not such as to relieve it of full responsibility for the fact that it participated in the cartel, if it has not publicly distanced itself from what was agreed in the meetings. Even assuming that the undertaking's conduct on the market was not in conformity with the conduct agreed, that in no way affects its liability for an infringement of Article 85(1) of the Treaty.

8 For the Commission to be entitled to hold that each of the undertakings addressed in a decision applying the competition rules is responsible for an overall cartel covering various anti-competitive actions during a given period, it must demonstrate that they each either consented to the adoption of an overall plan comprising the constituent elements of the cartel or participated directly in all those elements during that period. An undertaking may also be held responsible for an overall cartel even though it is shown that it participated directly only in one or some of the constituent elements of that cartel, if it is shown that it knew, or must have known, that the collusion in which it participated was part of an overall plan and that the overall plan included all the constituent elements of the cartel. Where that is the case, the fact that the undertaking concerned did not participate directly in all the constituent elements of the overall cartel cannot relieve it of responsibility for the infringement of Article 85(1) of the Treaty. Such a circumstance may nevertheless be taken into account when assessing the seriousness of the infringement which it is found to have committed.

9 Where the Commission finds that there has been an infringement whose object was to restrict competition on a particular geographical market, it is not necessary first to define the geographical market before finding that there is such a restriction of competition.

10 The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

In the case of a decision imposing fines on several undertakings for an infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of criteria to be applied has been drawn up.

Furthermore, when fixing the amount of each fine, the Commission has a margin of discretion and cannot be considered obliged to apply a precise mathematical formula for that purpose.

Lastly, the reasons for a decision must appear in the actual body of the decision and, save in exceptional circumstances, explanations given ex post facto cannot be taken into account.

When the Commission finds in a decision that there has been an infringement of the competition rules and imposes fines on the undertakings participating in it, it must, if it has systematically taken into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision in order to enable the addressees thereof to verify that the level of the fine is correct and to assess whether there has been any discrimination.

11 The fact that the undertakings participating in price collusion orchestrated the announcement of the concerted price increases and that they were discouraged from taking notes on the meetings to discuss this proves that they were aware of the unlawfulness of their conduct and that they took steps to conceal the collusion. The Commission is entitled to hold those steps to be aggravating circumstances when assessing the gravity of the infringement.

The absence of official minutes and the almost total absence of internal notes relating to the meetings may constitute, having regard to the number of such meetings, to the length of time for which they continued and to the nature of the discussions in question, sufficient proof that the participants were discouraged from taking notes.

12 It is not necessary for an undertaking to have been aware that it was infringing Article 85(1) of the Treaty for an infringement to be regarded as having been committed intentionally. It is sufficient that it could not have been unaware that the contested conduct had as its object or effect the restriction of competition in the common market.

13 The fact that an undertaking which has been proved to have participated in collusion on prices with its competitors has not behaved on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when the amount of the fine to be imposed is determined. An undertaking which, despite colluding with its competitors, follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit.

14 When determining the amount of the fine to impose for infringement of the Community competition rules, the Commission is not obliged to take into account, by way of a mitigating circumstance, the loss-making situation of the undertaking concerned. Recognition of such an obligation would be tantamount to conferring an unjustified competitive advantage on the undertakings least well adapted to the conditions of the market.

15 Although the existence of measures to monitor the implementation of a cartel may be taken into account as an aggravating factor when fixing the fines, the absence of such measures cannot, in itself, constitute a mitigating factor.

16 When the Commission imposes fines on several undertakings for infringement of the Community competition rules, nothing precludes it from expressing the amount of the fines in ecus, a monetary unit which is convertible into national currency. That also allows the undertakings more easily to compare the amounts of the fines imposed. Moreover, the fact that the ecu may be converted into national currency distinguishes it from the `unit of account' referred to in Article 15(2) of Regulation No 17, the use of which - since it is not a currency in which payment is made - necessarily means that the amount of the fine must be determined in national currency.

In calculating the fine, the Commission is entitled to use a method whereby it converts into ecus each undertaking's reference turnover at the average exchange rate for that same year, not the exchange rate in force on the date when the decision was adopted.

First of all, the Commission should ordinarily use one and the same method of calculating the fines imposed on the undertakings penalised for having participated in the same infringement. Second, in order to be able to compare the different turnover figures sent to it, which are expressed in the respective national currencies of the undertakings concerned, the Commission must convert those figures into a single monetary unit such as the ecu, the value of which is determined in accordance with the value of each national currency of the Member States.

Furthermore, in the first place, the taking into account of the turnover achieved by each undertaking during the reference year, that is to say, the last complete year of the period of infringement found, enables the Commission to assess the size and economic power of each undertaking and the scale of the infringement committed by each of them, those aspects being relevant for an assessment of the gravity of the infringement committed by each undertaking. In the second place, the taking into account, in order to convert the turnover figures in question into ecus, of the average exchange rates for the reference year adopted, enables the Commission to prevent any monetary fluctuations occurring after the cessation of the infringement from affecting the assessment of the undertakings' relative size and economic power and the scale of the infringement committed by each of them and, accordingly, its assessment of the gravity of that infringement. The assessment of the gravity of an infringement must have regard to the economic reality as revealed at the time when that infringement was committed.

Consequently, the method of calculating the fine by using the average rate of exchange for the reference year makes it possible to avoid the uncertain effects of changes in the real value of the national currencies which may arise between the reference year and the year in which the decision is adopted. Although this method may mean that a given undertaking must pay an amount, expressed in national currency, which is in nominal terms greater or less than that which it would have had to pay if the rate of exchange at the date of adoption of the decision had been applied, that is merely the logical consequence of fluctuations in the real values of the various national currencies.

17 When the amount of the fine for infringement of the Community competition rules is determined, regard is to be had to both the gravity and the duration of the infringement. The gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case, and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up.

When assessing the general level of fines the Commission is entitled to take account of the fact that clear infringements of the Community competition rules are still relatively frequent and that, accordingly, it may raise the level of fines in order to strengthen their deterrent effect. Consequently, the fact that in the past the Commission has applied fines of a certain level to certain types of infringement does not mean that it is estopped from raising that level, within the limits set out in Regulation No 17, if that is necessary in order to ensure the implementation of Community competition policy.

Furthermore, in fixing the general level of fines, the Commission is entitled to take into account, in particular, the lengthy duration and obviousness of an infringement of Article 85(1) of the Treaty which has been committed despite the warning which the Commission's previous decisions should have provided.

Parties

In Case T-348/94,

Enso Española S.A., a company incorporated under Spanish law, established at Castellbisbal, Barcelona (Spain), represented initially by Antonio Creus Carreras and Xavier Ruiz Calzado, of the Barcelona Bar, José Ramón García-Gallardo, of the Burgos Bar, and Bonifacio García Porras, of the Salamanca Bar, subsequently by Antonio Creus Carreras, Xavier Ruiz Calzado and Eva Contreras Ynzenga, of the Madrid Bar,

applicant,

v

Commission of the European Communities, represented initially by Francisco Enrique González Díaz and Richard Lyal, of its Legal Service, acting as Agents, subsequently by Richard Lyal, assisted by Ricardo Garcia Vicente, of the Madrid Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 - Cartonboard, OJ 1994 L 243, p. 1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(Third Chamber, Extended Composition),

composed of: B. Vesterdorf, President, C.P. Briët, P. Lindh, A. Potocki and J.D. Cooke, Judges,

Registrar: J. Palacio González, administrator,

having regard to the written procedure and further to the hearing which took place from 25 June 1997 to 8 July 1997

gives the following

Judgment

Grounds

Facts

1 This case concerns Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 - Cartonboard, OJ 1994 L 243, p. 1), as corrected prior to its publication by a Commission decision of 26 July 1994 (C(94) 2135 final) (hereinafter `the Decision'). The Decision imposed fines on 19 producers supplying cartonboard in the Community on the ground that they had infringed Article 85(1) of the Treaty.

2 The product with which the Decision is concerned is cartonboard. The Decision refers to three types of cartonboard, designated as `GC', `GD' and `SBS' grades.

3 GD grade cartonboard (hereinafter `GD cartonboard') is white-lined chipboard (recycled paper) which is normally used for the packaging of non-food products.

4 GC grade cartonboard (hereinafter `GC cartonboard') is cartonboard with a white top layer and is normally used for the packaging of food products. GC cartonboard is of higher quality than GD cartonboard. During the period covered by the Decision there was normally a price differential of approximately 30% between those two products. High quality GC cartonboard is also used, but to a lesser extent, for graphic purposes.

5 SBS is the abbreviation used to refer to cartonboard which is white throughout (hereinafter `SBS cartonboard'). The price of this cartonboard is approximately 20% higher than that of GC cartonboard. It is used for the packaging of foods, cosmetics, medicines and cigarettes, but is designated primarily for graphic uses.

6 By letter of 22 November 1990, the British Printing Industries Federation (`BPIF'), a trade organisation representing the majority of printed carton producers in the United Kingdom, lodged an informal complaint with the Commission. It claimed that the producers of cartonboard supplying the United Kingdom had introduced a series of simultaneous and uniform price increases and it requested the Commission to investigate whether there had been an infringement of the Community competition rules. In order to ensure that its initiative received publicity, the BPIF issued a press release. The content of that press release was reported in the specialised trade press in December 1990.

7 On 12 December 1990, the Fédération Française du Cartonnage also lodged an informal complaint with the Commission, making allegations relating to the French cartonboard market which were similar to those made in the BPIF complaint.

8 On 23 and 24 April 1991, Commission officials acting pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87, hereinafter `Regulation No 17'), carried out simultaneous investigations without prior notice at the premises of a number of undertakings and trade associations operating in the cartonboard sector.

9 Following those investigations, the Commission sent requests for both information and documents to all the addressees of the Decision pursuant to Article 11 of Regulation No 17.

10 The evidence obtained from those investigations and requests for information and documents led the Commission to conclude that from mid-1986 until at least (in most cases) April 1991 the undertakings concerned had participated in an infringement of Article 85(1) of the Treaty.

11 The Commission therefore decided to initiate a proceeding under Article 85 of the Treaty. By letter of 21 December 1992 it served a statement of objections on each of the undertakings concerned. All the addressees submitted written replies. Nine undertakings requested an oral hearing. A hearing was held on 7, 8 and 9 June 1993.

12 At the end of that procedure the Commission adopted the Decision, which includes the following provisions:

`Article 1

Buchmann GmbH, Cascades SA, Enso-Gutzeit Oy, Europa Carton AG, Finnboard - the Finnish Board Mills Association, Fiskeby Board AB, Gruber & Weber GmbH & Co KG, Kartonfabriek "de Eendracht NV" (trading as BPB de Eendracht NV), NV Koninklijke KNP BT NV (formerly Koninklijke Nederlandse Papierfabrieken NV), Laakmann Karton GmbH & Co KG, Mo Och Domsjö AB (MoDo), Mayr-Melnhof Gesellschaft mbH, Papeteries de Lancey SA, Rena Kartonfabrik A/S, Sarrió SpA, SCA Holding Ltd (formerly Reed Paper & Board (UK) Ltd), Stora Kopparbergs Bergslags AB, Enso Española SA (formerly Tampella Española SA) and Moritz J. Weig GmbH & Co KG have infringed Article 85(1) of the EC Treaty by participating,

- in the case of Buchmann and Rena from about March 1988 until at least the end of 1990,

- in the case of Enso Española, from at least March 1988 until at least the end of April 1991,

- in the case of Gruber & Weber from at least 1988 until late 1990,

- in the other cases, from mid-1986 until at least April 1991,

in an agreement and concerted practice originating in mid-1986 whereby the suppliers of cartonboard in the Community

- met regularly in a series of secret and institutionalised meetings to discuss and agree a common industry plan to restrict competition,

- agreed regular price increases for each grade of the product in each national currency,

- planned and implemented simultaneous and uniform price increases throughout the Community,

- reached an understanding on maintaining the market shares of the major producers at constant levels, subject to modification from time to time,

- increasingly from early 1990, took concerted measures to control the supply of the product in the Community in order to ensure the implementation of the said concerted price rises,

- exchanged commercial information on deliveries, prices, plant standstills, order backlogs and machine utilisation rates in support of the above measures.

(...)

Article 3

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

(...)

(xviii) Enso Española SA, a fine of ECU 1 750 000;

(...)'

13 According to the Decision, the infringement took place within a body known as the `Product Group Paperboard' (hereinafter `the PG Paperboard'), which comprised several groups or committees.

14 In mid-1986 a group entitled the `Presidents Working Group' (hereinafter `the PWG') was established within that body. This group brought together senior representatives of the main suppliers of cartonboard in the Community (some eight suppliers).

15 The PWG's activities consisted, in particular, in discussion and collaboration regarding markets, market shares, prices and capacities. In particular, it took broad decisions on the timing and level of price increases to be introduced by producers.

16 The PWG reported to the `President Conference' (hereinafter `the PC'), in which almost all the managing directors of the undertakings in question participated (more or less regularly). The PC met twice each year during the period in question.

17 In late 1987 the Joint Marketing Committee (hereinafter `the JMC') was set up. Its main task was, on the one hand, to determine whether, and if so how, price increases could be put into effect and, on the other, to prescribe the methods of implementation for the price initiatives decided by the PWG, country-by-country and for the major customers, in order to achieve a system of equivalent prices in Europe.

18 Lastly, the Economic Committee discussed, inter alia, price movements in national markets and order backlogs, and reported its findings to the JMC or, until the end of 1987, to the Marketing Committee, the predecessor of the JMC. The Economic Committee was made up of marketing managers of most of the undertakings in question and met several times a year.

19 According to the Decision, the Commission also took the view that the activities of the PG Paperboard were supported by an information exchange organised by Fides, a secretarial company, whose registered office is in Zurich, Switzerland. The Decision states that most of the members of the PG Paperboard sent periodic reports on orders, production, sales and capacity utilisation to Fides. Under the Fides system, those reports were collated and the aggregated data were sent to the participants.

20 According to the Decision, the applicant, Enso Española SA (formerly Tampella Española SA), participated in certain meetings of the JMC (between February 1989 and April 1991), of the PC (from May 1988 to May 1989), and of the Economic Committee (from February 1987 to May 1989).

Procedure

21 The applicant brought this action by application lodged at the Registry of the Court on 8 October 1994.

22 Sixteen of the eighteen other undertakings held to be responsible for the infringement have also brought actions to contest the Decision (Cases T-295/94, T-301/94, T-304/94, T-308/94, T-309/94, T-310/94, T-311/94, T-317/94, T-319/94, T-327/94, T-334/94, T-337/94, T-338/94, T-347/94, T-352/94 and T-354/94).

23 The applicant in Case T-301/94, Laakmann Karton GmbH, withdrew its action by letter lodged at the Registry of this Court on 10 June 1996 and the case was removed from the Register by order of 18 July 1996 (Case T-301/94 Laakmann Karton GmbH v Commission, not published in the ECR).

24 Four Finnish undertakings, members of the trade association Finnboard, and as such held jointly and severally liable for payment of the fine imposed on Finnboard, have also brought actions against the Decision (Joined Cases T-339/94, T-340/94, T-341/94 and T-342/94).

25 Lastly, an action was also brought by an association, CEPI-Cartonboard, which was not an addressee of the Decision. However, it withdrew its action by letter lodged at the Registry of the Court on 8 January 1997 and the case was removed from the Register of the Court by order of 6 March 1997 (Case T-312/94 CEPI-Cartonboard v Commission, not published in the ECR).

26 By letter of 5 February 1997 the Court requested the parties to take part in an informal meeting with a view, in particular, to their presenting observations on a possible joinder of Cases T-295/94, T-304/94, T-308/94, T-309/94, T-310/94, T-311/94, T-317/94, T-319/94, T-327/94, T-334/94, T-337/94, T-338/94, T-347/94, T-348/94, T-352/94 and T-354/94 for the purposes of the oral procedure. At that meeting, which took place on 29 April 1997, the parties agreed to such a joinder.

27 By order of 4 June 1997 the President of the Third Chamber, Extended Composition, of the Court, in view of the connection between the abovementioned cases, joined them for the purposes of the oral procedure in accordance with Article 50 of the Rules of Procedure and allowed an application for confidential treatment submitted by the applicant in Case T-334/94.

28 By order of 20 June 1997 he allowed an application for confidential treatment submitted by the applicant in Case T-337/94 which related to a document produced in response to a written question from the Court.

29 Upon hearing the report of the Judge Rapporteur, the Court (Third Chamber, Extended Composition) decided to open the oral procedure and adopted measures of organisation of procedure in which it requested the parties to reply to certain written questions and to produce certain documents. The parties complied with those requests.

30 The parties in the cases referred to in paragraph 26 above presented oral argument and gave replies to the Court's questions at the hearing which took place from 25 June to 8 July 1997.

Forms of order sought

31 The applicant claims that the Court should:

- annul the Decision in whole or in part to the extent to which it concerns the applicant;

- in the alternative, annul the fine imposed on it;

- in the further alternative, substantially reduce the amount of the fine;

- order the Commission to pay the costs, including the expenses and interest associated with the provision of a bank guarantee or the payment of the whole or part of the fine.

32 The Commission contends that the Court should:

- dismiss the application;

- order the applicant to pay the costs.

The application for annulment of the Decision

A - The plea of infringement of the fundamental right to an independent and impartial tribunal

Arguments of the parties

33 The applicant submits that the Commission's dual function as investigating authority and decision-making authority infringes the applicant's fundamental right to an independent and impartial tribunal.

34 This plea is in two parts. In the first part, the applicant submits that the fundamental right is laid down in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (hereinafter `the ECHR'). In the second part, it argues that this right is enshrined in the constitutional traditions of the Member States.

35 As regards the first part of the plea, it submits that a court hearing a criminal charge within the meaning of Article 6 of the ECHR must be impartial. The investigation and the adoption of the decision terminating the investigation must therefore be carried out by different instances or persons (judgments of the European Court of Human Rights of 1 October 1982 Piersack, A Series, No 53, and of 26 October 1984, De Cubber, A Series, No 86). The European Commission of Human Rights has described decisions adopted pursuant to competition law as criminal charges (decision of 9 February 1990, M & Co. v Germany, No 13258/87, Vol 64, p. 138, and opinion in Stenuit v France, No 11598/85, report of 30 May 1991, A Series, No 232-A).

36 Effect should have been given to the rights guaranteed under Article 6 of the ECHR for three reasons.

37 First, the Commission's decision is penal in nature (opinion of the European Commission of Human Rights in Stenuit v France and M & Co. v Germany, cited above). The fines are penal because they are intended to act as a deterrent, as is evident from the publicity given to the fines by the Commission with that end in view.

38 Second, even if the fine imposed was not penal in nature, the safeguards in regard to criminal charges should have been applied to a coercive administrative procedure such as that before the Commission. The formal classification of fines under domestic law and, in the present case, under Community law, are of little relevance in that regard.

39 Citing judgments of the European Court of Human Rights (judgments of 8 June 1976, Engel and Others, Series A, No 22, of 21 February 1984, ztürk, Series A, No 73, and of 28 June 1984, Campbell and Fell, Series A, No 80), the applicant maintains that the fundamental right to a fair trial can be applied to the present case, even though it has been held that the Commission is not a tribunal within the meaning of Article 6 of the ECHR (judgments of the Court of Justice in Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraphs 79 to 91, and Joined Cases 100/80, 101/80, 102/80 and 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825).

40 Finally, bias by the Commission could be rectified if it were possible subsequently to bring an action before a court that has full jurisdiction (judgment in De Cubber, cited above). There is, however, no such possibility in the present case, because the power of review exercised by the Court of First Instance pursuant to Articles 172 and 173 of the Treaty is not a full power of review, within the meaning of the judgment in De Cubber, cited above, by which all the assessments of fact and of law may be reviewed.

41 Under the review procedure provided for by Article 173 of the Treaty the Court of First Instance has no power to assess the factual or economic circumstances taken into consideration when the contested decision was adopted or the recommendation drawn up, except in a case where the Commission is accused of a misuse of power or of having manifestly failed to observe the provisions of the Treaty or a legal rule relating to its application. Citing two judgments of the Court of Justice (Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 34, and Case C-225/91 Matra v Commission [1993] ECR I-3203, paragraph 23), the applicant submits that the judicial review of Commission decisions on the basis of Article 173 of the Treaty is a mere review of legality and does not satisfy the requirement that there be an unlimited power of review.

42 The power to review fines, as provided for in Article 172 of the Treaty, is formally a review of unlimited jurisdiction and is an extension of the Community judicature's powers of review in the context of an application for annulment (judgment in Case 9/56 Meroni & Co. Industrie Metallurgiche v High Authority [1958] ECR 9).

43 However, that power of review is not a review by a court that has full jurisdiction, as required by the ECHR, because the Court of First Instance is empowered to exercise it only in the case of manifest injustice (Case 8/56 ALMA v High Authority [1957] ECR 1979, 192) or material error of fact or of law (Opinion of Advocate General Warner in Joined Cases 32/78, 36/78 to 82/78 BMW Belgium and Others v Commission [1979] ECR 2435, at 2484).

44 Even if that review were considered to be a review by a court that has full jurisdiction, it does not cover all the elements of the contested decision, as required by the European Court of Human Rights. The only possible result of such review is an alteration in the fine imposed; there is no examination of the facts and findings of fact which the Commission took into account in order to demonstrate the legal basis for its imposition of that fine.

45 In the second part of the plea the applicant asserts that the fundamental right to an independent and impartial tribunal is recognised by the traditions of the Member States.

46 Article F(2) of the Treaty on European Union lays down that fundamental rights as they result from the constitutional traditions of the Member States are to be applied. The fundamental right to an impartial tribunal is assured in the Member States by means of the two types of procedure for the review of infringements of competition law referred to in the De Cubber judgment, cited above.

47 The first type of procedure separates the investigation and decision-making phases from the very beginning. The French, Greek, Belgian, Portuguese, Spanish, Danish, Austrian, Finnish and Swedish national systems for the control of competition make that distinction between investigation and decision-making. The Belgian, Portuguese, Spanish, Danish and Swedish systems even allow for unlimited review in a subsequent phase. On the other hand, under the procedure for applying competition law in the United Kingdom, Ireland, Luxembourg and the Netherlands, the bodies whose task it is to safeguard free competition are not allowed to impose fines.

48 The second type of procedure, in force in Germany and in Italy, does not distinguish between the investigation and decision-making phases, but provides for an action before a court that truly has full jurisdiction, whose characteristics render it consistent with Article 6 of the ECHR.

49 Having regard to those aspects, the constitutional traditions of the Member States give better protection to the right to an impartial tribunal than is required by the de minimis interpretation of Article 6 of the ECHR adopted by the European Court of Human Rights. Consequently, even if the Court of First Instance were to take the view that the Decision is consistent with the right to an impartial tribunal in line with the rules laid down by the European Court of Human Rights, it could not find that the Decision guaranteed the right to an impartial tribunal, as defined in the constitutional traditions of the Member States and reflected in their procedures for the application of competition law.

50 The Commission considers, first, that Community competition law does not fall within the scope of criminal law and is not therefore subject to Article 6(1) of the ECHR.

51 Second, the Commission cannot be classified as a tribunal for the purposes of Article 6 of the ECHR.

52 Third, the applicant misinterprets Article 173 of the Treaty and the case-law relating thereto in arguing that the De Cubber judgment, cited above, cannot be applied in the Community context owing to the fact there is no subsequent appeal to a court with jurisdiction to examine and review each of the factual elements of the decision and the Commission's assessment of those elements.

53 Article 173 of the Treaty authorises the Community judicature, through a review of errors of fact and of law, to undertake an exhaustive review of both the Commission's findings and its assessment of the facts. Although the Community judicature may not substitute its own assessment for that of the Commission, under Article 176 of the Treaty the Commission must nevertheless adopt all the necessary measures to comply with a judgment annulling its decision (Joined Cases T-68/89, T-77/89 and T-78/89 SIV and Others v Commission [1992] ECR II-1403). Finally, the European Commission of Human Rights itself considered that Article 173 is an example of limited but normal review for the purposes of Article 6 of the ECHR (Report of 17 July 1980, Kaplan, DR, Vol 21, p. 66).

54 As regards the review of penalties provided for in Article 172 of the Treaty, the Community judicature's practice goes further than review of manifest injustice (ALMA v High Authority, cited above) or of material error (Opinion of Advocate General Warner in BMW Belgium and Others v Commission, cited above), because the Community judicature also verifies, inter alia, whether the fine is proportionate to the seriousness of the infringement (judgments in Case 16/61 Acciaierie Ferriere e Fonderie di Modena v High Authority [1962] ECR 547, 576 and 581, and Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, 260).

Findings of the Court

55 It is settled law that fundamental rights form an integral part of the general principles of law whose observance the Community judicature ensures (see, in particular, Opinion 2/94 [1996] ECR I-1759, paragraph 33, and judgment of the Court in Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 14). For that purpose, the Court of Justice and the Court of First Instance draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The ECHR has special significance in that respect (Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18, and Kremzow, cited above). Moreover, pursuant to Article F (2) of the Treaty on European Union, `the Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.

56 It is also settled law that the Commission cannot be described as a `tribunal' within the meaning of Article 6 of the ECHR (Musique Diffusion Française and Others v Commission, cited above, paragraph 7). The applicant's argument that the Decision is unlawful simply because it was adopted under a system in which the Commission carries out both investigatory and decision-making functions is therefore irrelevant. The Court emphasises, however, that the Commission is required, during the administrative procedure before it, to observe the procedural guarantees provided for by Community law.

57 The applicant also submits that, as Community law currently stands, bias by the Commission cannot be redressed by means of an action brought to contest the Commission's decision before a court that has full jurisdiction and that this is contrary to the obligations imposed by the ECHR.

58 The Court points out in that regard that Community law confers upon the Commission a supervisory role which includes the task of taking proceedings in respect of infringements of Articles 85(1) and 86 of the Treaty.

59 Furthermore, Regulation No 17 gives it the power to impose, by decision, fines on undertakings and associations of undertakings which have infringed those provisions either intentionally or negligently.

60 The requirement for effective judicial review of any Commission decision that finds and punishes an infringement of those Community competition rules is a general principle of Community law which follows from the common constitutional traditions of the Member States (see, to that effect, Case T-186/94 Guérin Automobiles v Commission [1995] ECR II-1753, paragraph 23).

61 In the present case, that general principle of Community law has not been infringed.

62 First, the Court of First Instance is an independent and impartial court, established by Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 (OJ 1988 L 319, p. 1, corrected version in OJ 1989 L 241, p. 4). As is apparent from the third recital in the preamble to that decision, the Court was established in order particularly to improve the judicial protection of individual interests in respect of actions requiring close examination of complex facts.

63 Second, by virtue of Article 3(1)(c) of that decision, the Court of First Instance is required to exercise the jurisdiction conferred on the Court of Justice by the Treaties establishing the Communities and by the acts adopted in implementation thereof, inter alia, `in actions brought against an institution of the Communities by natural or legal persons pursuant to the second paragraph of Article 173 ... of the EEC Treaty relating to the implementation of the competition rules applicable to undertakings'. In the context of actions based on Article 173 of the Treaty, the review of the legality of a Commission decision finding an infringement of the competition rules and imposing a fine in that respect on the natural or legal person concerned must be regarded as effective judicial review of the measure in question. The pleas on which the natural or legal person concerned may rely in support of his application for annulment are of such a nature as to allow the Court to assess the correctness in law and in fact of any accusation made by the Commission in competition proceedings.

64 Third, in accordance with Article 17 of Regulation No 17, the Court has `unlimited jurisdiction within the meaning of Article 172 of the Treaty to review decisions whereby the Commission has fixed a fine or periodic penalty payment [and] it may cancel, reduce or increase the fine or periodic penalty payment imposed'. It follows that the Court has jurisdiction to assess whether the fine or penalty payment imposed is proportionate to the seriousness of the infringement found.

65 Having regard to all the foregoing, the plea must be rejected as unfounded.

B - The plea of infringement of the rights of the defence

Arguments of the parties

66 The applicant submits that the statement of objections did not define the geographical market on which it was alleged to have committed infringements of competition law. The statement of objections mentioned the Spanish market only once and made no mention at all of the Irish, Portuguese and Greek markets.

67 The applicant concluded from this that the Spanish, Irish, Portuguese and Greek markets were not the subject-matter of the investigation. It did not therefore believe that it had to defend itself against allegations by the Commission that it had committed infringements on those geographical markets.

68 Contrary to the Commission's submissions in its written pleadings to the Court, the statement of objections did not clearly cover `the Spanish and Irish markets and, in part, the Portuguese and Greek markets (at least as regards the information exchange system)'. Moreover, by that statement the Commission implicitly recognised that the cartel did not cover the Greek and Portuguese markets.

69 More specifically, as regards the application of the Decision to the Spanish and Irish markets, the Commission's reference to certain appendices to the statement of objections (appendices 5, 6, 18, 20 to 22, 55, 56, 60, 71, 80, 81, 109, 110, 111 and 118) is irrelevant, because none of those appendices contain any evidence that the alleged infringement covered those markets. In particular, appendices 5, 6, 55, 56, 60 and 71 do not concern Ireland.

70 As to the alleged coverage of part of the Greek and Portuguese markets, the Commission itself acknowledges that the meetings of the PG Paperboard did not deal with questions relating to the Greek and Portuguese markets. Furthermore, a number of appendices on which the Commission relies do not relate to those markets.

71 In any event, the evidence showing that the Spanish, Irish, Greek and Portuguese markets were not covered by the statement of objections is much more cogent than the evidence to the contrary, in particular because the Commission did not include any of those four countries in its highly-detailed analysis of the seven price initiatives set out in the statement of objections.

72 A comparison between the tables summarising the price initiatives, as annexed to the statement of objections and to the Decision, shows that two succinct notes relating to the price increases in Spain for the initiatives in October 1989 (initiative E) and in January 1991 (initiative G) were included in the tables annexed to the Decision. Only the second of those notes refers to the applicant.

73 None of the above four markets is cited in the Decision in connection with the implementation of the PG Paperboard's decisions relating to prices on the national markets.

74 In failing clearly to indicate the relevant geographic market, the Commission infringed the obligation to give an appropriate definition of the relevant market, an obligation which the Court has found to be a general principle which must be observed (SIV and Others v Commission, cited above, paragraph 159).

75 The Decision indicates that the investigation and the infringement covered the whole of the Community except for Portugal and Greece (point 138), whereas the statement of objections gave it to be understood that Spain and Ireland were not covered by the objections either. In adopting objections in the Decision on which the applicant had not had an opportunity to make known its views, the Commission infringed Article 4 of Commission Regulation No 99/63/EEC on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (OJ, English Special Edition 1963-1964, p. 47).

76 The Commission considers that the statement of objections, a term covering both the basic text and its appendices, clearly covers the Spanish and Irish markets in regard to all aspects of the infringement, and, in part, the Greek and Portuguese markets inasmuch as the evidence of collusion relating to those two markets relates only to the information exchange system. However, it cannot be inferred from the latter circumstance that the cartel did not cover the whole of the Community. The only concession that could be made is that there was no concrete evidence that the cartel extended to those markets.

77 As regards the geographical scope of the infringement, the Commission refers to appendices 5, 6, 18, 20 to 22, 49, 55, 56, 58, 60, 65, 71, 80, 81, 86, 88, 109, 110, 111, 117 and 118 to the statement of objections. In the light of those documents, it submits that it cannot be called upon to answer for the applicant's decision not to defend itself on that point during the administrative procedure.

78 As regards the price initiatives, the Commission considers that the comparison, made by the applicant in its pleadings, between the tables summarising the initiatives is manifestly incorrect, because the information relating to the October 1989 and January 1991 price increases was sent to it before the Decision was adopted.

79 As to the need to define the relevant geographical market before examining the illegality of specific conduct in the light of Article 85(1) of the Treaty, it considers that there is no need for such a definition at all where a restriction of competition is being assessed and it is clear, as it is in the present case, that the participation of almost all the undertakings operating on the relevant market on the Community's territory rules out any possible application of the de minimis rule to the infringement. That view is not inconsistent with the judgment in SIV and Others v Commission, cited above.

Findings of the Court

80 Observance of the right to be heard is, in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed, a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings (Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9).

81 Applying that principle, Article 19(1) of Regulation No 17 and Article 4 of Regulation No 99/63 require the Commission to include in its final decision only those objections in respect of which the undertakings concerned have been afforded the opportunity of making known their views.

82 The seventh indent of Article 1 of the Decision asserts that the undertakings referred to in that Article planned and implemented simultaneous and uniform price increases `throughout the Community'.

83 Since the applicant submits that the statement of objections makes no reference to such price collusion in four Member States of the Community, namely Spain, Ireland, Greece and Portugal, it is necessary to ascertain whether, in this instance, the statement of objections was couched in terms that, albeit succinct, were sufficiently clear to enable the parties concerned properly to take cognizance of the geographical scope of that collusion. It is only on that condition that the statement of objections could have fulfilled its function under the Community regulations of giving undertakings all the information necessary to enable them to defend themselves properly, before the Commission adopts a final decision (see, inter alia, 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 42).

84 The statement of objections sent to the applicant consists of the basic document, the appendices and the individual particulars concerning the applicant. The basic document does not contain an operative part, but a `summary of infringement'. That summary states, inter alia, that the producers supplying cartonboard in the EEC, in concert and complicity and contrary to Article 85 of the Treaty, `planned and implemented simultaneous and uniform price increases throughout the EEC'. It expressly states that it must be read subject to the detailed objections set out in the remainder of the document.

85 When the statement of objections is read as a whole, it can be seen that, in the Commission's view, the alleged infringement extended to the whole of the Community. An examination of the allegations made in the statement of objections relating to the geographical scope of the anti-competitive acts cannot be restricted to collusion on prices, since it is apparent from the statement of objections (pp. 83 to 88) that the purpose of the main features of the `price before tonnage' scheme was to restrict competition within the common market.

86 In its assessment of the facts, the statement of objections (p. 37) states, in regard to the JMC's role in the price collusion:

`The JMC discussed market-by-market the detailed implementation of the price decisions taken by the PWG. Its main function was to "determine whether and, if so, how price increases could be put into effect and to work towards achieving an equivalent (i.e. uniform) price system in Europe"'.

87 As to the collusion on market shares, it states (p. 51) that the understanding on market shares `related to the shares in Western Europe as a whole'.

88 On that point, it refers to Stora's statements, according to which (Appendix 43 to the statement of objections, point 1.1):

`Discussions took place in the PWG on tonnage market shares. Virgin fibre qualities (GC and UC grades) and recycled fibre qualities (GD and UD grades) were considered separately. Levels for Europe as a whole and for individual countries were discussed. "Europe" for the purposes of the discussions meant EC and EFTA countries.'

89 As regards the collusion on prices, it states (p. 69):

`The documentation also shows that the so-called "equivalent" or "European" price system had been implemented, with similar list price levels being introduced simultaneously across Europe.'

90 In its legal assessment, the Commission states inter alia (p. 83), in the section headed `The nature of the infringement in the present case':

`The main features of the "price before tonnage" scheme were:

[...]

- the periodic implementation of agreed price initiatives involving simultaneous and uniform price increases by all producers in each national market;

- the achievement of a uniform pricing system on a European-wide basis;

[...]'.

91 Finally, in the section headed `Effect upon trade between Member States', the statement of objections states (p. 88):

`In the present case, the pervasive nature of the collusive arrangements, which covered virtually all trade throughout the EEC (and other Western European countries) in a major industrial product, must automatically have resulted in the diversion of trade patterns from the course they would otherwise have followed.'

92 The explanations regarding the geographical scope of the alleged infringement, as contained in the body of the statement of objections itself, are corroborated in that document by the main evidence on which the Commission relies, namely Stora's statements. According to those statements, the geographical scope of the anti-competitive acts regarding prices extended, at least, to the whole of the territory of the Community. By way of example, Stora states, in regard to the two price increase initiatives adopted in 1988, that `agreement was reached on the introduction (in 1988) of two price increases throughout the EC market' (Appendix 39 to the statement of objections, point 4). Similarly, as has already been pointed out (see paragraph 88 above), Stora states that the collusion on market shares concerned Europe as a whole.

93 In those circumstances, the statement of objections must be considered to satisfy the abovementioned requirement of clarity regarding the extension of the collusion to the whole of the Community. Consequently, the mere fact that some Community countries were not expressly mentioned is irrelevant.

94 Nor, in the present case, was it necessary for the Commission, prior to finding that there had been a restriction of competition, to define the geographical market on which it had taken place (see paragraph 231 et seq. below).

95 However, inasmuch as it is clear from the information supplied by the applicant in reply to a written question from the Court that the majority of its sales were on the Spanish market, the Court finds that several documents referred to in the statement of objections and annexed thereto do expressly refer to the Spanish market (Appendices 109, 110, 111, 117 and Technical Appendices E and G).

96 In particular, on page 55 of the statement of objections, Appendix 109 is referred to in the following terms:

`Those producers present at the meeting [of the JMC of 16 October 1989] ... reported on the progress in each national market of the price increase which had been announced to take effect (for most countries) on 1 October 1989'.

97 The Spanish market is expressly included amongst the national markets referred to in Appendix 109:

`(a) Spain

The price increase has been notified and can be applied without any great difficulty [...]'.

98 Furthermore, Appendix E, which relates to the price increase initiatives in October 1989, makes comments on, and partially reproduces Appendix 111 to the statement of objections, namely a price list found at Rena. Although that list was stated to be Appendix 110 to the statement of objections, a careful reader could not have been unaware that it was in fact referring to Appendix 111.

99 The information reproduced concerns the prices, by grade of cartonboard, for each country and the date of the announcement of the price increases; information relating to the Spanish national market is expressly set out in that document.

100 Lastly, Appendix E states:

`Details of the price increases of each manufacturer are indicated in Table E.

(N.B.: Finnboard, Feldmühle and Kopparfors all increased their prices for Spain by the amounts indicated in Appendix 117).'

101 Although the reference to Appendix 117 to the statement of objections is an unfortunate error, as the appendix referred to is in fact Appendix 111, the Court finds that Appendix E relates expressly to the Spanish national market.

102 Finally, Appendix G (p. 4), which relates to the January 1991 price initiatives, states as follows:

`The details of each producer's price increases are set out in Table G.

The main producers supplying the Spanish market (Cascades, Finnboard, Iggesund, Tampella Española, Feldmühle) all announced an increase of 5 PTA/kg.'

103 In summary, in the light of the foregoing considerations, the applicant cannot assert that its rights of defence were infringed.

104 The plea must therefore be rejected.

C - The plea of infringement of Article 190 of the Treaty

Arguments of the parties

105 Pointing out that the extent of the requirement to state reasons depends upon the particular circumstances (Opinion of Advocate General Van Gerven in Case C-137/92 P Commission v BASF [1994] ECR I-2555, at I-2572, the applicant submits that it is necessary to adopt a strict interpretation of the obligation to state the reasons on which a decision imposing fines is based, above all where the Commission's decision goes appreciably further than its previous decisions (Case 73/74 Groupement des Fabricants de Papiers Peints de Belgique and Others v Commission [1975] ECR 1491).

106 In the present case, the Decision did not clearly and coherently set out, in regard to the applicant, the considerations of fact and of law which led the Commission to adopt that decision. Neither the applicant nor the Court are therefore in a position to ascertain the considerations on which its reasoning is based. That is particularly so in regard to the definition of the relevant geographical market and the assessment of the applicant's participation in the alleged infringements.

107 Finally, the Commission infringed the obligation to state reasons for its determination of the amount of the fines.

108 The Commission submits that the plea must be rejected, because it merely refers generally to Article 190 of the Treaty. It is in any event unfounded, because the Decision contains an adequate statement of reasons.

Findings of the Court

109 It is settled law that the purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted (see, inter alia, Case T-49/95 Van Megen Sports v Commission [1996] ECR II-1799, paragraph 51). Although pursuant to Article 190 of the Treaty the Commission is bound to state the reasons on which its decisions are based, mentioning the facts, law and considerations which have led it to adopt them, it is not required to discuss all the issues of fact and law which have been raised during the administrative procedure (see, inter alia, Van Landewyck and Others v Commission, cited above, paragraph 66).

110 In the present case, the Decision refers directly to the applicant in the context of its description of the concerted price increases (points 77 and 89 of the Decision). Moreover, the points of the Decision describing the discussions with an anti-competitive object in the JMC (in particular, points 44 to 46, 58, 71, 73, 84, 85 and 87 of the Decision) necessarily relate to the applicant, which does not dispute having participated in meetings of that body. Lastly, the Decision clearly sets out the reasoning followed by the Commission in reaching its conclusion that the applicant participated in an overall cartel (points 116 to 119 of the Decision).

111 In such circumstances, the statement of reasons for the Decision gave the applicant sufficient indication of the principal points of fact and law which constituted the basis for the reasoning which led the Commission to hold it responsible for an infringement of Article 85(1).

112 As to the statement of reasons concerning the geographical market to which the Decision relates, it suffices to find that not only the Decision's operative part (Article 1), but also the supporting grounds for it (inter alia, point 2, first paragraph, third and fifth indents; point 44, second paragraph, second indent; point 52 and point 76, first paragraph) relate to anti-competitive actions throughout the Community.

113 In those circumstances, the Court cannot uphold the applicant's argument that the statement of reasons was inadequate on that point.

114 Finally, as regards the alleged infringement of the obligation to state reasons for the Commission's determination of the amount of the fines, the Court finds that such an infringement, if proved, can affect only the lawfulness of Article 3 of the Decision, which imposes a fine on the applicant. The arguments in question must therefore be considered with the pleas raised in support of the application for annulment or reduction of the fine (see paragraph 238 et seq. below).

115 It follows that the plea must be rejected as unfounded.

D - The plea that Article 85(1) of the Treaty was wrongly applied to the applicant's actions

Arguments of the parties

116 This plea is in four parts.

117 In the first part, the applicant disputes that it participated in an overall plan to restrict competition.

118 In its reply to the statement of objections it acknowledged that it had been a member of the PG Paperboard and had participated in meetings of certain of its bodies and in the Fides information exchange system. However, it was unaware that the information supplied had restricted competition.

119 Its adherence to an overall plan to restrict competition cannot be inferred from its limited participation in the bodies of the PG Paperboard and the information exchange within that structure. Moreover, by referring in its defence to the `bodies of the cartel', the Commission wrongly classes its participation in the bodies of the PG Paperboard as participation in the cartel itself.

120 The Commission has not furnished credible and cogent evidence to link the applicant to the common system. Since the applicant is not referred to in any of the documents cited as evidence in the Decision, the only matters which can be considered to have been proved are its mere presence at meetings and participation in an information exchange. The applicant stresses the difference between participation in an overall plan to restrict competition and participation in some of the actions capable of constituting less serious infringements in the context of that plan (presence at meetings and participation in the information exchanges).

121 The applicant sets out the test used by the Commission in order to establish the participation in the cartel of each addressee of the Decision (points 116 to 121 of the Decision) and argues that the application of that test to its own situation shows that it did not participate in the alleged common scheme. None of the evidence relied on in the Decision is such as to prove a link between the applicant and the collusion.

122 In the second part of the plea, the applicant submits that it did not participate in the price increases agreed at the JMC meeting of 6 September 1990 (point 89 of the Decision). As stated in its reply to the statement of objections (point 5.2.2, and in particular 5.2.2.1), its participation in, and implementation of, the price collusion have not been proved.

123 Moreover, neither the Decision nor the statement of objections contains the slightest evidence of its participation in monitoring the implementation of the price increases.

124 In its reply it explains that, when assessing its assertion that it did not participate in the collusion on prices, it must be borne in mind, first, that it did not undertake to apply a particular price level: that does not mean that it was unaware of the existence of agreements made by the major producers to that effect, probably in PWG meetings. Second, it should be borne in mind that its commercial policy always followed different criteria than those of its competitors.

125 In the third part of the plea the applicant submits that it did not participate in collusion on control of production volumes or in collusion on market shares.

126 According to the Decision (point 51 et seq.), a mechanism for controlling prices and production volumes, based on an alleged `price before tonnage' policy, was initiated in the PG Paperboard. It is also alleged (point 58) that the smaller cartonboard producers, although not privy to the detailed discussions on market shares which took place in the PWG, were, as part of the `price before tonnage' policy to which they all subscribed, well aware of the general understanding between the major producers to maintain constant levels of supply and of the need to adapt their own conduct to it.

127 However, there is no evidence for that assertion as regards the applicant. On the contrary, its commercial policy, explained in its reply to the statement of objections, was always to increase the quantity of products on the market, even to the detriment of the margin on prices obtained.

128 Furthermore, the Commission wrongly alleges that it participated in the collusion on downtime and on market shares. In point 116 of the Decision the Commission acknowledges that only the major producers concluded agreements on production volumes and market shares.

129 The objection that markets were shared is not proved or even supported by any evidence in the Decision. In any event, the changes in the applicant's sales on the Community markets suffice to prove that this allegation is unfounded in regard to it.

130 Finally, in the fourth part of the plea, the applicant contends that the failure in the statement of objections to clarify the relevant geographical market (see point 66 et seq. above) is repeated in the Decision. The only passage in the Decision which specifies the limits of that market is point 138, in which it is accepted that the infringements were not committed in Portugal and Greece. The applicant asserts that there is an inconsistency between point 138 and point 61, in which it is stated that the Fides information exchange system covered the whole of Western Europe.

131 A definition of the relevant geographical market is essential to an assessment of whether or not an infringement existed and of how serious and extensive it was. Since the Spanish, Portuguese, Greek and Irish markets, on which it carried on the major part of its activities, are not covered by the procedure, the applicant was only a marginal participant in the infringement.

132 Moreover, the Irish and Spanish markets seem to have been regarded as part of the relevant geographical market (point 72 of the Decision), whereas the majority of the evidence adduced in the Decision does not refer to those national markets at all. In particular, the evidence on which the Commission relies in order to prove the existence of an agreement to increase prices refers to the Spanish and Irish markets only in the context of the October 1989, April 1990 and January 1991 price increases.

133 The Commission states that the arguments submitted by the applicant in its reply to the statement of objections are inadmissible because they have not been shown to be pertinent to the validity of the contested decision.

134 The proper approach in a case such as the present one is to demonstrate the existence, operation and salient features of the cartel as a whole and then to determine whether there is credible and persuasive proof to link each individual producer to the common scheme, and the period of each producer's participation. In that context it refers to point 116, second paragraph, of the Decision, according to which price collusion and volume control were inextricably linked aspects of the same overall plan.

135 As the objective of the PG Paperboard was in itself principally unlawful, the Commission assumes that any producer that was a member of the PG Paperboard and sat in its various committees was a participant in the cartel. The PWG and the JMC dealt almost exclusively with price fixing and market sharing.

136 Furthermore, as is shown in the Decision and the appendices to the statement of objections, there are numerous items of concrete evidence to show that the applicant participated in the infringement. The applicant is referred to in the key documents proving the existence of the cartel as a whole or its various aspects.

137 As to the second part of the plea, the Commission contends that the applicant's participation in price collusion has been proved. Its participation in the bodies of the cartel precludes it from arguing that the alleged time lag between the announcement of prices was the result of intelligent adjustment to the market conditions, and its reply to the statement of objections only goes to confirm its participation in the price collusion.

138 As regards the third part of the plea, the Commission observes that the applicant does not deny participating in the main bodies of the cartel, other than the PWG, and that the existence of the agreement and the concerted practice imputed to the applicant has been proved in regard to those bodies (see, inter alia, points 111 to 113 of the Decision). The Commission does not therefore have to have concrete evidence showing that each alleged participant expressly consented to or committed an overt act in support of each and every individual aspect or manifestation of the cartel throughout its duration (point 116 of the Decision). Reasons of substantive law and of practicality militate against such a fragmented approach, because the infringement consisted, in essence, in the combination of the producers over several years in a joint unlawful enterprise pursuant to a common design (ibidem).

139 Even if it was only the major producers which discussed, in particular, market shares and production downtime in the PWG, that does not mean that the smaller producers were not involved in that element of the infringement. They were aware of, and accepted, the market sharing policy adopted in the PWG (point 58 of the Decision); facilitated the implementation of the scheme for the control of sales volumes and market shares by supplying the necessary information to Fides; and were informed of the plans for downtime in the JMC (point 71).

140 The Commission contends that the fourth part of the plea should also be rejected.

141 In that regard it refers, in essence, to the arguments set out above (see paragraph 76 et seq.). It emphasizes, however, that point 138 of the Decision states that there is no reliable evidence of price-fixing arrangements in Greece and Portugal, not that infringements did not take place in those countries. It also contests the applicant's allegation that there is an inconsistency between the statement that the Fides information exchange covered the whole of Europe and the statement that there is no evidence of agreements on prices in Greece and Portugal.

Findings of the Court

142 The Court will first examine the first three parts of the plea alleging that the applicant did not participate in the infringement found in Article 1 of the Decision. The fourth part, arguing that there was no adequate definition of the relevant geographical market will be examined separately.

The first three parts of the plea: the applicant did not participate in the infringement found in Article 1 of the Decision

143 First of all, the Court points out that under Article 44(1)(c) of the Rules of Procedure all applications must indicate the subject-matter of the proceedings and include a brief statement of the grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to decide the case, if appropriate without other information in support. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible (see, for example, the order in Case T-56/92 Koelman v Commission [1993] ECR II-1267, paragraph 21).

144 In the present case, the Court finds that the applicant, in referring to the arguments submitted in its reply to the statement of objections, is not relying on a plea or argument which was not submitted in its application. The reference in the application to certain arguments set out in the reply to the statement of objections merely seeks to support and supplement the main body of the application on specific points. In those circumstances, the applicant's arguments in support of the present plea must be considered admissible.

145 The Court must examine, in the first place, whether the Commission has proved that the applicant participated in an infringement of Article 85(1) of the Treaty from March 1988 until February 1989, the month in which it admits that it began to participate in JMC meetings. It will then examine whether the Commission has proved that the applicant participated in an infringement of Article 85(1) of the Treaty in regard to the remaining period, that is to say, from February 1989 until April 1991.

1. Period from March 1988 until February 1989

146 The fourth paragraph of point 162 of the Decision states:

`Enso Española started attending meetings of a PG Paperboard grouping (the Economic Committee) on a regular basis in 1987 and the first President Conference it attended was that of 25 May 1988. It claims to have started going to the JMC only in February 1989. However, it did take part in the first price initiative of 1988 and its effective participation in the infringement may be taken to have begun at about that time.'

147 As proof of the applicant's participation in an infringement of the Community competition rules during the period in question, the Commission relies on its participation in the PC meetings of 25 May and 17 November 1988 (Table 3 annexed to the Decision), in the Economic Committee meeting of 3 May 1988 (Table 6 annexed to the Decision) and, finally, its actual conduct in regard to prices.

148 Each of those items of evidence should be examined in the above order.

(a) The applicant's participation in meetings of the PC

149 As regards the applicant's participation in two specific meetings of the PC, the Commission does not advance any evidence as to the object of those meetings. Consequently, when it refers to that participation as evidence of the undertakings's participation in an infringement of Article 85(1) of the Treaty, it necessarily bases its assertion on the general description, set out in the Decision, of the object of the meetings of that body and on the evidence put forward in the Decision in order to support that description.

150 In that regard, the Decision states: `As Stora has explained one of the PWG's functions included explaining to the President Conference the measures which were necessary to bring order to the market ... In this way, the managing directors attending the President Conferences were informed of the decisions taken by the PWG and of the instructions to be given to their sales departments to implement the agreed price initiatives' (point 41, first paragraph, of the Decision). The Commission also observes: `The PWG invariably met before each scheduled President Conference, and since the same person was in the chair at both meetings, it was no doubt he who communicated the result of the PWG deliberations to others among the so-called "Presidents" who were not members of the inner circle' (point 38, second paragraph, of the Decision).

151 Stora has indicated that the participants in PC meetings were informed of decisions adopted by the PWG (appendix 39 to the statement of objections, point 8). However, the correctness of that assertion is contested by several of the undertakings which took part in PC meetings. In particular, it is contested implicitly by the applicant inasmuch as it disputes that it participated in an infringement of Article 85(1) of the Treaty. Consequently, Stora's statements relating to the PC's role cannot, unless supported by other evidence, be considered sufficient evidence of the object of the meetings of that body.

152 Admittedly, there is a document in the file, a statement of 22 March 1993 by a former member of the management of Feldmühle (Mr Roos), which at first sight corroborates Stora's assertions. Mr Roos indicates, inter alia, as follows: `The content of the discussions in the PWG was communicated to the undertakings not represented in that group at the immediately following Presidents' Conference, or, if there was no immediate Presidents' Conference, at the JMC'. However, even though there is no express reliance on that document in the Decision in support of the Commission's assertions as to the object of the PC meetings, it cannot, on any view, be considered to constitute evidence supplementing Stora's statements. As those statements are a synthesis of the replies submitted by each of the three undertakings, including Feldmühle, owned by Stora during the period of the infringement, the former member of the management of Feldmühle necessarily constitutes one of the sources for the statements by Stora itself.

153 The Commission submits in the Decision that Appendix 61 to the statement of objections, a note discovered at Mayr-Melnhof's UK sales agent which refers to a meeting held in Vienna on 12 and 13 December 1986, is `corroboration of Stora's admission that the President Conference did in fact discuss collusive pricing' (point 41, third paragraph, and point 75, second paragraph). That document contains the following:

`UK pricing

Recent Fides meeting included the representative of Weig stating that they thought 9% too high for the United Kingdom and were settling at 7%! Great disappointment as it signals a "negotiating" level for everybody else. UK pricing policy will be left to RHU with the support of [Mayr-Melnhof] even if it means a temporary reduction in tonnes while we attempt (and be seen to attempt) to pursue 9%. [Mayr-Melnhof]/FS maintain a growth policy for UK but reduced returns are serious and we have to fight to regain control on pricing. [Mayr-Melnhof] accept that it doesn't help that they are known to have increased their tonnes in Germany by 6 000!'

154 Mayr-Melnhof states (reply to a request for information, appendix 62 to the statement of objections) that the Fides meeting referred to at the beginning of the passage quoted is probably the PC meeting of 10 November 1986, at which, according to Table 3 annexed to the Decision, the applicant was not present.

155 The document in question shows that Weig reacted to an initial level of price increase by indicating its future pricing policy in the United Kingdom.

156 It cannot, however, be considered to prove that Weig reacted in relation to a particular level of price increase agreed between the undertakings within the PG Paperboard before 10 November 1986.

157 The Commission does not rely on any other evidence to that effect. Moreover, Weig's reference to a price increase of `9%' may be explained by the price increase in the United Kingdom announced by Thames Board Ltd on 5 November 1986 (annex A-12-1). That announcement was made public shortly afterwards, as is clear from a press cutting (annex A-12-3). Lastly, the Commission has not produced any other document capable of constituting direct evidence that discussions on price increases took place at meetings of the PC. In those circumstances, it cannot be ruled out that Weig's remarks, as related in appendix 61 to the statement of objections, were made on the fringe of the meeting of the PC on 10 November 1986, as Weig repeatedly submitted at the hearing.

158 The Commission also states in the Decision that `[d]ocumentation found by the Commission at FS-Karton (part of the M-M group) confirms that at the end of 1987 agreement had been reached in the two Presidents' groups on the linked issues of volume control and price discipline' (point 53, first paragraph, of the Decision). It refers in that regard to appendix 73 to the statement of objections, a confidential note dated 28 December 1988 from the Marketing Director of the Mayr-Melnhof group in Germany (Mr. Katzner) to the Managing Director of Mayr-Melnhof in Austria (Mr Gröller) concerning the market situation.

159 The author of the note refers by way of introduction to the closer cooperation within the `Presidents' grouping' (`Präsidentenkreis'), an expression interpreted by Mayr-Melnhof as a general reference to both the PWG and the PC, that is to say, without reference to a specific event or meeting (appendix 75 to the statement of objections, point 2.a).

160 Although the applicant does not dispute that appendix 73 to the statement of objections is corroborative evidence of Stora's statements concerning the existence of collusion on market shares between the undertakings allowed to participate in the `Presidents' grouping' and of collusion on downtime between those same undertakings, the Commission has not, however, adduced any other evidence to confirm that the object of the PC was, inter alia, to discuss collusion on market shares and control of production volume. Consequently, the expression `Presidents' grouping' (`Präsidentenkreis') used in appendix 73 to the statement of objections cannot, despite the explanation supplied by Mayr-Melnhof, be construed as referring to bodies other than the PWG.

161 Having regard to the foregoing, the Commission has not proved that the meetings of the PC had an anti-competitive function alongside its lawful activities. It follows that it was not entitled to infer from the evidence relied upon that the undertakings which participated in meetings of the PC had taken part in an infringement of Article 85(1) of the Treaty.

162 The applicant's participation in two meetings of the PC does not therefore prove that it infringed Article 85(1) of the Treaty from March 1988 until February 1989.

b) The applicant's participation in one meeting of the Economic Committee

163 It is common ground that between March 1988 and February 1989 the applicant participated in only one meeting of the Economic Committee, that of 3 May 1988. Since the Commission has not adduced any evidence relating to that meeting, it is necessary to examine more generally whether the meetings of the Economic Committee had an anti-competitive object.

164 The Decision states that `the "central theme" of the discussions of the Economic Committee was the analysis and assessment of the cartonboard market in the various countries' (point 50, first paragraph, of the Decision). The Economic Committee `discussed inter alia price movements in national markets and order backlogs and reported its findings to the JMC (or its predecessor the Marketing Committee before the end of 1987)' (point 49, first paragraph, of the Decision).

165 According to the Commission, `[t]he discussions on market conditions were not unfocused; talks on the state of each national market must be seen in the context of the planned price initiatives, including the perceived need for temporary plant shutdowns to support price increases' (point 50, first paragraph, of the Decision). Furthermore, the Commission considers that: `[t]he Economic Committee may have been less directly concerned with price fixing as such but it is not credible that those who attended were unaware of the illicit purpose for which the information they knowingly provided to the JMC was to be used' (point 119, second paragraph, of the Decision).

166 To support its contention that the discussions held in the Economic Committee had an anti-competitive object, the Commission refers to a single document, a confidential note by a representative of FS-Karton concerning the essential points of the Economic Committee's meeting of 3 October 1989 (appendix 70 to the statement of objections).

167 In the Decision the Commission summarises the content of that document as follows:

`... in addition to a detailed survey of demand, production and orders in hand in each national market, the meeting was concerned with:

- perceived strong customer resistance to the last GC price increase, effective on 1 October,

- the respective state of the order backlog of the GC and GD producers, including individual positions,

- reports on downtime taken and planned,

GROUNDS CONTINUED UNDER DOC.NUM: 694A0348.1

- the particular problems of implementing the price increase in the United Kingdom and its effect on the necessary price differential between GC and GD grades,

- the comparison against budget of incoming orders for each national grouping' (point 50, second paragraph, of the Decision).

168 That description of the content of the document is, in essence, correct. However, the Commission does not rely on any evidence to support its assertion that appendix 70 to the statement of objections may be regarded `as indicative of the real nature of the deliberations of that body' (point 113, last paragraph, of the Decision). Furthermore, Stora states: `[T]he JMC was set up at the end of 1987 and held its first meeting in early 1988 taking over part of the functions of the Economic Committee from that time. The other functions of the Economic Committee were taken over by the Statistical Committee' (appendix 39 to the statement of objections, point 13). At least as regards the period which commenced at the beginning of 1988, the only period during which the applicant is considered to have infringed Article 85(1) of the Treaty, Stora's statements do not therefore contain any evidence supporting the Commission's assertion concerning the allegedly anti-competitive object of that body's discussions. Nor, lastly, does the Commission refer to any evidence to support the view that the participants in the meetings of the Economic Committee were informed of the precise nature of the meetings of the JMC, the body to which the Economic Committee reported. Consequently, it cannot be ruled out that some participants in the Economic Committee's meetings who did not also participate in the meetings of the JMC were not aware of the precise use to which the reports prepared by the Economic Committee were put by the JMC.

169 Consequently, appendix 70 to the statement of objections does not demonstrate the true nature of the discussions which took place at meetings of the Economic Committee.

170 Furthermore, the Commission itself appears to take the view that participation in meetings of the Economic Committee does not constitute adequate proof of any infringement, because the applicant, which had been present at meetings of the Economic Committee in 1987, was not considered to have infringed the competition rules prior to March 1988.

171 In the light of the foregoing, the fact that the applicant took part, during the period in question, in one meeting of the Economic Committee does not prove that it participated in an infringement of Article 85(1) of the Treaty.

c) The applicant's actual conduct in regard to prices

172 As regards the period in question (March 1988 until February 1989), it is apparent from Table B annexed to the Decision that the Commission found that the applicant had implemented price increases in France and in the United Kingdom on 1 March and 1 April 1988 respectively, that is to say, on dates corresponding to those allegedly agreed in the bodies of the PG Paperboard. According to that same table, the Commission did not find that the applicant had increased its prices on other national markets upon the occasion of the March/April 1998 price increase initiative.

173 Furthermore, according to Table C annexed to the Decision, the Commission does not have any information regarding price increases by the applicant upon the occasion of the October 1988 price increase initiative.

174 In those circumstances, the applicant's actual conduct in regard to prices, as established by the Commission, does not corroborate the Commission's assertion that the applicant participated in an infringement of Article 85(1) of the Treaty.

(d) Conclusion relating to the period in question

175 Having regard to the whole of the foregoing considerations, the evidence on which the evidence relies, even considered as a whole, does not prove that the applicant participated in an infringement of Article 85(1) of the Treaty between March 1988 and February 1989.

2. Period between February 1989 and April 1991

176 According to Article 1 of the Decision, the undertakings referred to in that provision infringed Article 85(1) of the Treaty by participating, in the case of the applicant from March 1988 until at least the end of April 1991, in an agreement and concerted practice originating in mid-1986 whereby the suppliers of cartonboard in the Community, inter alia, `agreed regular price increases for each grade of the product in each national currency' and `planned and implemented simultaneous and uniform price increases throughout the Community', `reached an understanding on maintaining the market shares of the major producers at constant levels, subject to modification from time to time', and `increasingly from early 1990, took concerted measures to control the supply of the product in the Community in order to ensure the implementation of the said concerted price rises'.

177 It therefore follows that, according to the Decision, each of the undertakings referred to in Article 1 thereof infringed Article 85(1) of the Treaty by participating in a single infringement which consisted of collusion on three matters which were different but which pursued a common objective. Those three types of collusion must be regarded as the constituent elements of the overall cartel.

178 In those circumstances, the applicant's participation in each type of collusion must be examined separately.

a) The applicant's participation in price collusion

179 According to the Commission, the main purpose of the JMC was, from the outset:

`- to determine whether, and if so how, price increases could be put into effect and to report its conclusions to the PWG,

- to work out the details of the price initiatives decided by the PWG on a country-by-country basis and for the major customers with the aim of achieving an equivalent (i.e. uniform) price system in Europe ...' (point 44, last paragraph, of the Decision).

180 More specifically, the Commission maintains in the first and second paragraphs of point 45 of the Decision, that:

`This committee discussed market-by-market how the price increases agreed by the PWG were to be implemented by each producer. The practicalities of bringing proposed price increases into effect were addressed in "round table" discussions, with each participant having the chance to comment on the suggested increase.

Difficulties in the implementation of price increases decided by the PWG, or the occasional refusal to cooperate, were reported back to the PWG, which then (as Stora put it) "sought to achieve the level of cooperation considered necessary". Separate reports were made by the JMC for GC and GD grades. If the PWG modified a pricing decision on the basis of the reports it had received back from the JMC, the steps necessary to implement it would be discussed at the next meeting of the JMC'.

181 The Court finds that the Commission was entitled to refer to Stora's statements (appendices 35 and 39 to the statement of objections) as support for those findings as to the object of the meetings of the JMC.

182 Moreover, even if the Commission does not possess any official minutes of a meeting of the JMC, it obtained from Mayr-Melnhof and Rena some internal notes relating to the meetings of 6 September 1989, 16 October 1989 and 6 September 1990 (appendices 117, 109 and 118 to the statement of objections). Those notes, the tenor of which is given in points 80, 82 and 87 of the Decision, set forth the detailed discussions held during those meetings relating to concerted price initiatives. They therefore constitute evidence which clearly corroborates the description of the JMC's functions given by Stora.

183 In that regard, reference should be made by way of example to the note obtained from Rena regarding the JMC meeting of 6 September 1990 (Appendix 118 to the statement of objections), in which it is stated, inter alia:

`Price increase will be announced next week in September.

F FF 40 NL 14 D DM 12 I LIT 80 B BF 2.50 CH SF 9 GB £ 40 IRL £ 45

All grades should be increased equally GD, UD, GT, GC etc.

Only 1 price increase a year. For deliveries from 7 Jan. Not later than 31st January. 14 of September letter with price increase (Mayr-Melnhof). 19 Sept. Feldmühle sending its letter. Cascades before end of Sept. All must have sent out their letters before 8 October.'

184 As the Commission explains in points 88 to 90 of the Decision, it was also able to obtain internal documents supporting the conclusion that the undertakings, and in particular those named in appendix 118 to the statement of objections, actually announced and implemented the agreed price increases.

185 As regards Appendix 117 to the statement of objections, a note relating to the JMC meeting of 6 September 1989, the Commission submits that it is evidence of collusion on the October 1989 price increase initiative. It states, in particular, that the note `shows details of the price increases which had been a