Judgment of the Court of First Instance (First Chamber) of 17 December 1991. - Enichem Anic SpA v Commission of the European Communities. - Competition - Concepts of agreement and concerted practice - Collective responsibility - Whether a party is answerable for an infringement. - Case T-6/89.



European Court reports 1991 Page II-01623

Swedish special edition Page II-00001

Finnish special edition Page II-00001



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

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

(EEC Treaty, Art. 85(1) )

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

(Commission Regulation No 99/63)

3. Competition - Administrative procedure - Respect for the rights of the defence - Whether parties involved in a proceeding are entitled to see the hearing officer' s report and comment upon it - No

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

(EEC Treaty, Art. 85(1) )

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

(EEC Treaty, Art. 85(1) )

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

(EEC Treaty, Art. 85(1) )

7. Competition - Cartels - Concerted practice - Effect on trade between Member States - To be assessed generally and not with regard to each of the participants

(EEC Treaty, Art. 85(1) )

8. Competition - Community rules - Infringements - Answerability - Cessation of a branch of activity - Legal person responsible for the operation of the undertaking at the time of the infringement - Disappearance - The legal person continuing the operation to be held answerable

(EEC Treaty, Art. 85(1) )

9. Acts of the institutions - Reasoning - Reference to opinions required to be obtained - Obligation - Scope - Decision implementing the competition rules - Opinion of the hearing officer - Not one which is required to be obtained

(EEC Treaty, Art. 190)

10. Competition - Fines - Amount - Determination - Criteria - Previous conduct of the undertaking

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

Summary

1. The decision addressed by the Commission to undertakings or associations of undertakings pursuant to Article 85(1) of the Treaty may not contain any new objection in relation to those contained in the statement of objections.

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

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

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

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

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

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

7. An undertaking must be regarded as having participated in an agreement or a concerted practice capable of affecting trade between Member States and having thus infringed Article 85(1) of the Treaty if this could have been the result of the conduct of all the participating undertakings, irrespective of the effect of its individual participation.

8. Article 85(1) of the EEC Treaty is aimed at economic units made up of a combination of personal and physical elements which can contribute to the commission of an infringement of the kind referred to in that provision. When such an infringement is found to have been committed, it is necessary to identify the natural or legal person who was responsible for the operation of the undertaking at the time when the infringement was committed, so that it can answer for it. However, where between the commission of the infringement and the time when the undertaking in question must answer for it the person responsible for the operation of that undertaking has ceased to exist in law, it is necessary, first, to find the combination of physical and human elements which contributed to the commission of the infringement and then to identify the person who has become responsible for their operation, so as to avoid the result that because of the disappearance of the person responsible for its operation when the infringement was committed the undertaking may fail to answer for it.

9. The fact that a decision implementing the competition rules makes no reference to the hearing officer' s report does not constitute a breach of Article 190 of the Treaty since that report, which is not required by any provision to be passed on to the Advisory Committee on Restrictive Practices and Dominant Positions or to the Commission, is not an opinion which the Commission is required to obtain when taking a decision.

10. When it is a question of determining the amount of fine imposed owing to a breach of the competition rules of the Treaty, the fact that the Commission has in the past already found an undertaking guilty of infringing the competition rules and penalized it for that infringement may be treated as an aggravating factor as against that undertaking but the absence of any previous infringement is a normal circumstance which the Commission does not have to take into account as a mitigating factor.

Parties

In Case T-6/89,

Enichem Anic S.p.A., a company incorporated under Italian law, having its registered office at Palermo (Italy), represented by G. Guarino and Mario Siragusa, of the Rome Bar, and G. Arcidiacono, of the Milan Bar, with an address for service in Luxembourg at the Chambers of Messrs Arendt & Harles, 4 Avenue Marie-Thérèse,

applicant,

v

Commission of the European Communities, represented by Anthony McClellan, Principal Legal Adviser, and G. Marenco, Legal Adviser, acting as Agents, with an address for service in Luxembourg at the office of R. Hayder, a national civil servant seconded to its Legal Service, Wagner Centre, Kirchberg,

defendant,

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

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(First Chamber),

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

Advocate General: B. Vesterdorf,

Registrar: H. Jung,

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

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

gives the following

Judgment

Grounds

FACTS AND BACKGROUND TO THE ACTION

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

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

3 Enichem Anic S.p.A. (hereinafter referred to as "Anic") was one of the producers which was supplying the market before 1977. Its position on the polypropylene market was that of a medium-sized producer whose market share was between 2.7 and 4.2%. It left the market in spring 1983, having transferred its polypropylene business to Montepolimeri SpA at the end of October 1982.

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

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

BASF AG ("BASF"),

DSM N.V. ("DSM"),

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

Hoechst AG ("Hoechst"),

Chemische Werke Huels ("Huels"),

Imperial Chemical Industries PLC ("ICI"),

Montepolimeri SpA, now Montedipe ("Monte"),

Shell International Chemical Company Limited ("Shell"),

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

BP Chimie ("BP").

No investigations were carried out at the premises of Rhône-Poulenc S.A. ("Rhône-Poulenc") or at the premises of Anic.

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

- Amoco,

- Chemie Linz AG ("Linz"),

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

- Petrofina S.A. ("Petrofina"),

- Enichem Anic SpA ("Anic").

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

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

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

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

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

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

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

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

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

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

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

"Article 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 2

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

Article 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 4

...

Article 5

..."

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

PROCEDURE

17 These are the circumstances in which, by application lodged at the Registry of the Court of Justice on 31 July 1986, the applicant brought this action seeking annulment of the Decision. Thirteen of the fourteen other addressees of the Decision have also brought actions for its annulment (Cases T-1/89 to T-4/89 and T-7/89 to T-15/89).

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

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

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

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

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

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

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

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

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

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

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

FORMS OF ORDER SOUGHT BY THE PARTIES

29 Enichem Anic claims that the Court should:

(i) annul in its entirety or in part the decision of the Commission of 23 April 1986 (IV/31.149 - Polypropylene) in so far as it concerns the applicant;

(ii) in the alternative, annul or reduce the fine imposed on the applicant; and

(iii) order the Commission to pay all the applicant' s costs and expenses.

The Commission claims that the Court should:

(i) dismiss the application;

(ii) order the applicant to pay the costs.

SUBSTANCE

30 It is necessary to examine, first, the applicant' s grounds of challenge relating to a breach of the rights of the defence allegedly committed by the Commission in so far as (1) it did not set out in the statement of objections all the objections which it subsequently upheld against the applicant in the Decision and thus attributed collective responsibility to the applicant, (2) the final record of the hearings was not transmitted to the Members of the Commission or to the Advisory Committee, (3) it did not communicate to the applicant the hearing officer' s report and (4) it failed to take account of the applicant' s special position in the administrative procedure; secondly, the grounds of challenge relating to proof of the infringement concerning (1) the findings of fact made by the Commission and (2) the application to those facts of Article 85(1) of the EEC Treaty, whereby it is contended that the Commission (A) did not correctly define the infringement, (B) did not correctly assess the restrictive effect on competition and (C) did not correctly assess how trade between Member States was affected; thirdly, the grounds of challenge relating to the question whether or not the applicant is answerable for the infringement; fourthly, the grounds of challenge relating to the reasoning of the Decision; and, fifthly, the grounds of challenge relating to the determination of the fine, which is alleged to be (1) partially time barred, (2) disproportionate to the duration of the alleged infringement and (3) disproportionate to the gravity of the alleged infringement.

THE RIGHTS OF THE DEFENCE

1. New objections and collective responsibility

31 The applicant submits that in the Decision the Commission has upheld against it objections which were not set out in the particular statement of objections, in particular those described in Article 1(c) of the Decision. The Commission cannot, as it has tried to do, hold the applicant responsible for participating in the cartel in general and consequently indirectly extend that responsibility to conduct through which the cartel manifested itself but which could not be directly ascribed to the applicant. It cannot therefore be held responsible for the conduct described in Article 1(c) of the Decision which the Commission itself has admitted could not be directly ascribed to it.

32 Accordingly, the responsibility imputed to the applicant does not correspond to the matters proved in its regard or to the objections set out in the statement of objections, even if regard is had to the general part of that statement, since that part, which is intended to define the context in which each undertaking' s conduct took place, can be considered to be specifically addressed to Anic only in the passages in which it is actually named, and not in passages which concern only other producers.

33 The applicant adds that in spite of the Commission' s denials the Decision suggests and implies that Anic participated in all the activities described in Article 1 to the same extent as all the other undertakings concerned.

34 The Commission states that that argument is based on a deliberately incorrect reading of Article 1 of the Decision. The Commission did not assert in that provision that the applicant had participated in all the activities referred to but only that it had participated in a polypropylene producers' cartel which took concrete form through those activities. The Decision holds the applicant responsible not for a series of separate infringements but for a single infringement, that is to say participation in an agreement and concerted practice intended to support polypropylene prices which took the form of various measures which, taken together, constitute a single infringement.

35 According to the Commission, once participation in the cartel is proved, the resulting liability can concern only the cartel as a whole. The Commission takes the view that the responsibility of an undertaking involved in the cartel does not depend on proof of its actual participation in each separate activity which was carried out in order to achieve the common objective. It therefore considers that it was inappropriate, in Article 1, to specify the degree of each undertaking' s actual participation in the various initiatives taken in order to implement the cartel as well as the duration of its participation in the cartel.

36 The Court observes that the objections upheld in Article 1(c) of the Decision were all mentioned in the general or particular statements of objections. The temporary restrictions on output were referred to in points 67 and 79 of the main statement of objections, the exchange of detailed information on deliveries in points 97 and 101, participation in local meetings in point 2(b) of the particular objections and the system of "account management" in points 85 to 89 of the main statement of objections.

37 The content of the main statement of objections may be raised individually against any of the undertakings to which it is addressed, including the applicant, unless that statement or the particular objections actually state the contrary. As regards the objections in question, that is not the case in relation to the applicant.

38 Moreover, it may be pointed out that the text of the main statement of objections itself - in particular points 1 and 5 - indicates that all the undertakings to which that statement is addressed are accused of all the actions there described.

39 It follows that all the objections upheld in Article 1(c) of the Decision were included in an appropriate statement made to the applicant and are not, therefore, new objections.

40 The question whether the Commission maintained those objections as regards the applicant in the Decision and, if so, whether it has proved the findings of fact supporting those objections to the requisite legal standard falls to be considered by the Court in its examination of the question whether the infringement has been proved. The same is true of the applicant' s ground of challenge concerning the alleged collective responsibility imputed to it by the Decision.

2. Failure to transmit the minutes of the hearings

41 The applicant considers that the fact that neither the members of the Advisory Committee, the member of the Commission responsible for competition matters nor the other members of the Commission had the final version of the minutes of the hearings when they stated their views or made their decision constitutes a procedural defect.

42 The Commission points out that both the members of the Advisory Committee and the members of the Commission had the provisional version of the minutes of the hearings, from which the final version did not diverge in any significant respect.

43 It adds that it is not obliged to send the minutes to the members of the Advisory Committee and that in any event representatives of the Member States attended the hearings, with the exception of the representatives of Greece and Luxembourg, which did not attend the second session of hearings organized by the Commission. Consequently, says the Commission, the minutes could serve only as a reminder for the members of the Advisory Committee. As for the members of the Commission, they had not only the provisional minutes but also the comments of the undertakings on those minutes.

44 The Commission further observes that since the members of the Commission and of the Advisory Committee were able to make their decision in full knowledge of the facts the Decision would not have been different if the alleged irregularity had not taken place and it is therefore of secondary importance (judgment of the Court of Justice in Case 30/78 Distillers Company v Commission [1980] ECR 2229, paragraph 26 and Opinion at p. 2290).

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

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

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

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

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

49 The applicant maintains that observance of the rights of the defence requires that it should have been informed of the opinion which, by virtue of his terms of reference, the hearing officer must submit to the Director-General for Competition.

50 The Commission considers that since the report tendered by the hearing officer to the Director General for Competition is a report made by an official of the Commission and is generally made orally it forms part of an internal Commission decision-making procedure and cannot therefore be disclosed to the undertakings.

51 The Commission also points out that the hearing officer' s terms of reference do not provide for the report to be made public.

52 Finally, it submits that the independence of the hearing officer and his ability to state his views candidly would be imperilled if his remarks did not remain confidential. That point of view, it says, is confirmed by the order of the Court of Justice of 11 December 1986 (in Case 212/86 R ICI v Commission, not published in the Reports of Cases before the Court, at paragraphs 5 to 8), according to which the report of the hearing officer need not be taken into account by the Court for the purposes of judicial review.

53 This Court holds that the rights of the defence do not require that undertakings involved in proceedings under Article 85(1) of the EEC Treaty should be able to comment on the hearing officer' s report, which is a purely internal Commission document. On this question the Court of Justice has held that the hearing officer' s report is in the nature of an opinion for the Commission, which is in no way bound to follow it, and that the report does not therefore constitute a decisive factor which must be taken into account by the Community court in performing its judicial review (order of 11 December 1986 in Case 212/86-R, cited above, paragraphs 5 to 8). Respect for the rights of the defence is ensured to the requisite legal standard if the various bodies involved in drawing up the final decision have been properly informed of the arguments put forward by the undertakings in response to the objections notified to them by the Commission and to the evidence presented by the Commission in support of those objections (judgment of the Court of Justice in Case 322/81 Nederlandsche Banden-Industrie-Michelin N.V. v Commission [1983] ECR 3461, paragraph 7 at p. 3498).

54 It is to be noted in this regard that the purpose of the hearing officer' s report is neither to supplement or correct the undertakings' arguments nor to set forth fresh objections or adduce fresh evidence against the undertakings.

55 It follows that respect for the rights of the defence does not give the undertakings the right to demand disclosure of the hearing officer' s report so as to be able to comment upon it (see the judgment of the Court of Justice in Joined Cases 43 and 63/82 Vereniging ter Bevordering van het Vlaamse Boekwezen, VBVB, and Vereniging ter Bevordering van de Belangen des Boekhandels, VBBB v Commission [1984] ECR 19, paragraph 25 at p. 58).

56 Consequently, this ground of challenge must be dismissed.

4. The applicant' s special position in the administrative procedure

57 The applicant points out that it became involved in the administrative procedure when it was already under way. It was thus in a special position with the result that it did not have full knowledge of the arguments which had been exchanged up to that point.

58 The Court observes that the applicant has not indicated in what way its special position in the administrative procedure deprived it of the possibility of making known its views as it saw fit on all the objections made against it by the Commission in the statements of objections addressed to it and on the evidence supporting those objections mentioned by the Commission in the statements of objections or annexed to them.

59 The fact that the applicant did not participate in the first series of hearings did not prevent it from stating its position on the objections addressed to it and it cannot therefore rely on the fact that it was not informed of the arguments that had already been exchanged by the Commission and the other undertakings.

60 It follows that the applicant' s special position in the administrative procedure did not result in a breach of the rights of the defence and that this ground of challenge must be dismissed.

PROOF OF THE INFRINGEMENT

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

62 It is therefore necessary to verify first of all whether the Commission has established to the requisite legal standard its findings of fact as regards (I) the period from November 1977 to the end of 1978 or the beginning of 1979 and (II) the period from the end of 1978 or the beginning of 1979 to the end of 1982 or the beginning of 1983 concerning (A) the system of regular meetings, (B) the price initiatives, (C) the measures designed to facilitate the implementation of the price initiatives and (D) the fixing of target tonnages and quotas, taking into account (a) the contested decision, (b) the arguments of the parties, before going on to (c) an assessment of them; it will then be necessary to review the application of Article 85(1) of the EEC Treaty to those facts.

1. The findings of fact

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

A. The contested decision

63 The Decision (point 78, fourth paragraph) asserts that the system of regular meetings of polypropylene producers began at about the end of 1977 but that it is not possible to identify the precise date on which each individual producer began to attend. It states that Anic, one of the producers which are not proved to have "supported" the December 1977 price initiative, admits to having participated in meetings from the beginning.

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

B. Arguments of the parties

65 The applicant states that the Decision is wrong in so far as it finds that the applicant participated in meetings from November 1977 onwards. The Commission has misinterpreted Anic' s reply to the request for information (particular objections addressed to Monte, Appendix 27), to which reference is made in the particular objections addressed to Anic, in which it stated that the meetings began towards the end of the 1970s and that Anic' s participation could be dated to a period close to the beginning of those meetings. Since it no longer had the documents concerning that period, the applicant thought in good faith that the beginning of its participation, which it dates to 1979, was close to the beginning of the producers' meetings, which it thought to be towards 1979, that is to say the end of the 1970s.

66 It further states that the Decision is self-contradictory as to the beginning of its participation. In point 105 it places Anic on the same footing as ATO, BASF, DSM and Huels, while acknowledging that it has no evidence of Anic' s participation before 1979. The operative part, on the other hand, states that Anic participated in the infringement from November 1977 onwards, whereas it states that ATO took part from 1978 onwards and BASF, DSM and Huels from some time between 1977 and 1979.

67 The Commission maintains that it follows from Anic' s clear admission in its reply to the request for information that it began to take part in producers' meetings in about November 1977.

68 The Commission states that Anic cannot repudiate such an admission, particularly since in its reply it justified that reversal by the fact that at the time of its reply to the request for information it did not have the Commission' s documents, which shows that the applicant has adjusted its reply in the light of the evidence held by the Commission.

C. Assessment by the Court

69 The Court finds that, as the Commission acknowledged at the hearing, the only evidence put forward by it to prove the applicant' s participation in the meetings during the period in question is its reply to the request for information (particular objections, Monte, Appendix 27), in which it is stated:

"Incontri fra i produttori Europei di polipropilene sono iniziati negli anni 70 intorno al termini di quel periodo. Non siamo in grado di stabilire con precisione la date in cui è iniziata la partecipazione dell' Anic, ma riteniamo si collochi in un momento prossimo all' inizio degli incontri stessi."

("Meetings between the European polypropylene producers began during the 1970s, towards the end of that period. We are not in a position to determine precisely the date on which Anic began to take part, but we think it was close to the beginning of the meetings in question.")

70 The applicant' s reply cannot be regarded as a clear admission of participation in the meetings from November 1977 onwards. The applicant gives a perfectly plausible literal and contextual interpretation of its reply which is corroborated by ICI' s reply to the request for information (main statement of objections, Appendix 8), according to which the "bosses' " and "experts' " meetings began at the end of 1978 or the beginning of 1979 and Anic participated regularly in those meetings during the period of its presence on the polypropylene market between 1979 and 1983, that is to say after the period now under consideration.

71 It must further be pointed out that the doubt expressed by the Commission in the Decision itself (point 105, second paragraph) in stating that the date on which Anic, ATO, BASF, DSM and Huels began to participate in the arrangements cannot have been later than 1979 also supports the interpretation given by the applicant to its reply to the request for information.

72 That doubt is also apparent in the particular objections addressed to the applicant, in which the Commission simply reproduced Anic' s reply to the request for information without indicating the interpretation which it intended to give to it regarding the precise determination of the date when Anic began to participate in the meetings, and in the main statement of objections, in which the Commission does not mention the applicant' s name in relation to meetings held before 1979.

73 It follows from the foregoing that since it has not been able to put forward any evidence of such a kind as to support any participation in the infringement on the part of Anic before the end of 1978 or the beginning of 1979 the Commission has not proved its participation to the requisite legal standard.

II. The period from the end of 1978 or the beginning of 1979 to the end of 1982 or the beginning of 1983

A. The system of regular meetings

(a) The contested decision

74 The Decision (point 18, third paragraph, point 78, fourth paragraph, and point 105, second paragraph) accuses the applicant of having participated in the system of regular meetings of polypropylene producers by regularly attending meetings until the middle or the end of 1982 (point 19, first paragraph, and point 78, seventh paragraph), when it ceased to participate following the reorganization of the Italian petrochemical industry and the transfer of its polypropylene business to Monte.

75 In point 21 the Decision states that the purposes of those regular meetings were, in particular, the fixing of target prices and sales volumes and the monitoring of their observance by the producers.

(b) Arguments of the parties

76 Although it admits having taken part in meetings in about 1979, the applicant maintains that the only meeting in which its participation has been proved by the Commission is a meeting of January 1981 (main statement of objections, Appendix 17) and that its participation in the meetings probably ceased at the beginning of 1982 because of the situation in the Italian chemical industry, as is proved by the notes of several meetings in 1982. For example, the note of a meeting of 13 May 1982 (main statement of objections, Appendix 24) states that Anic/SIR were no longer coming, whereas other producers are simply referred to as absent. The note of a meeting of 2 September 1982 (main statement of objections, Appendix 30) also indicates that Anic was no longer present and was considered troublesome, as is confirmed by the note of a meeting of 2 November 1982 (main statement of objections, Appendix 32). It was by error that in its reply to the request for information (particular objections, Monte, Appendix 27) Anic thought that it could state that it had taken part in a meeting in October 1982. In the body of the Decision the Commission itself recognizes that Anic did not participate in meetings "after about the middle or end of 1982" (Decision, point 19).

77 The applicant asserts that the mention of its name in tables and lists attached to the notes of meetings does not constitute conclusive proof of its presence at the meetings. It appears clearly from a comparison of all the references in the tables that these are the same for the period when Anic seems to have been present at the meetings as for the period when it certainly was not present.

78 It adds that in many of the tables there is joint reference to Anic and SIR as if they were a single undertaking, although there is vigorous competition between those two undertakings and Anic would never have agreed to the impression being given that they formed a single undertaking.

79 The applicant further maintains that its participation in the meetings during the period in question was purely passive, and it points out that the documents produced by the Commission in order to prove the contrary, namely the tables and lists attached to notes of producers' meetings, which refer to Anic and SIR jointly, are not conclusive.

80 It also argues that in notes of meetings such as those of 21 September or 2 November 1982 (main statement of objections, Appendices 30 and 32) Anic was presented as a problem or a troublemaker on which it was necessary to bring pressure to bear. That proves that it conducted itself in a competitive and independent manner on the market.

81 The applicant asserts that its participation in the meetings was merely sporadic, although the Commission' s objection requires the proof of regular presence at meetings as a constitutive element of the infringement. It states that the Decision is doubly contradictory in that respect, since it asserts in point 18 that Anic participated regularly in meetings but in point 37, second paragraph, omits Anic from the list of regular participants in meetings, and it refers to Anic' s presence only in two meetings in January 1981 (point 33, third paragraph) but asserts that 55 meetings were held between September 1979 and September 1983 (Table 3 to the Decision).

82 The Commission considers that Anic ceased to participate in the meetings in the middle or at the end of 1982. That assertion is based on Anic' s reply to the request for information, in which it is stated:

"Ci risulta che l' ultima partecipazione dell' Anic a una riunione di quel tipo dati al mese di ottobre 1982 a Zurigo."

("It appears to us that the last meeting of that kind in which Anic took part was in October 1982 in Zurich.")

That admission is corroborated by the fact that Anic took part in September 1982 in the fixing of quotas for 1983, as is indicated by two documents found at the premises of ICI (main statement of objections, Appendices 73 and 76).

83 It adds that the notes of the meetings of 13 May, 21 September and 2 November 1982 (main statement of objections, Appendices 24, 30 and 32), cited by the applicant, according to which "Anic/SIR no longer come", "Anic were seen as a problem", "pressure was needed" on Anic and "Anic were alleged to be a nuisance" cannot exculpate the applicant, since observance of the cartel' s arrangements is not to be confused with participation in the cartel and the notes relate to a period when Anic had begun to take no further part in meetings.

84 The Commission observes that it is not a defence for an undertaking which has participated in meetings whose purpose was to fix price targets or quotas to say that it adopted a purely passive attitude at those meetings. There is no relevant distinction between simple presence at the meetings and acceptance of the decisions taken at those meetings. Even passive participation in meetings is sufficient to enable competitors to believe that the participant has committed itself to following the agreed line of conduct and to expose it to the criticism of its competitors when it deviates from that line of conduct.

85 It further states that the allegation that Anic' s participation in the meetings was only sporadic is contradicted by ICI' s reply to the request for information (main statement of objections, Appendix 8), in which the applicant is numbered among the regular participants in the meetings. The Commission considers that Anic ceased regularly to be present at meetings only in mid-1982 and not at the beginning of that year. It points out that if it was not able to establish precisely the list of meetings which Anic attended, that was because Anic, unlike other producers, no longer had the travel vouchers of the employees who were sent to the meetings.

86 For the sake of completeness, the Commission adds that, contrary to the applicant' s assertions, in many documents the names of Anic and SIR are not associated.

(c) Assessment by the Court

87 The Court observes that it is clear from the applicant' s reply to the request for information (particular objections, Monte, Appendix 27), in conjunction with ICI' s reply to that request (main statement of objections, Appendix 8), that the Commission has established to the requisite legal standard that Anic participated in the regular meetings of polypropylene producers from the end of 1978 or the beginning of 1979 onwards.

88 As regards the beginning of Anic' s participation in the meetings, it may be pointed out that ICI' s reply to the request for information includes the applicant, unlike two other producers, among the regular participants in the "bosses' " and "experts' " meetings from 1979 onwards. That reply must be interpreted as dating the beginning of Anic' s participation to the beginning of the system of "bosses' " and "experts' " meetings, which was established at the end of 1978 or the beginning of 1979.

89 ICI' s reply to the request for information is confirmed on this point by the interpretation which, in its written pleadings before the Court, the applicant gave to its own reply to the request for information, referring to point 105, second paragraph, of the Decision. The applicant has stated that the only certain date concerning the beginning of its presumed participation in the meetings remains the year 1979.

90 As regards the end of Anic' s participation in the meetings, the Commission acknowledged in the Decision (point 19, first paragraph, and point 78, seventh paragraph) that there was still some doubt as to the precise date and it admitted in its written pleadings before the Court that the applicant' s presence at the meetings ceased to be regular from May 1982. Similarly, at the hearing it accepted that from September 1982 Anic no longer participated in the meetings.

91 It also appears from the note of the meeting of 13 May 1982 (main statement of objections, Appendix 24) that it was stated during that meeting that Anic was no longer coming. That statement is corroborated by the notes of subsequent meetings, in which Anic' s name no longer appears as a participant, with the exception of the meeting of 9 June 1982 (main statement of objections, Appendix 25), from which it appears that the applicant had provided the author of the note with precise figures on its sales in April and May 1982.

92 As regards the applicant' s participation in a meeting in October 1982, the Court notes that after having indicated in its reply to the request for information that it had taken part in that meeting the applicant now states that that is probably incorrect, as it said in its reply to the statement of objections.

93 The note of the meeting in question (main statement of objections, Appendix 31) shows that like the Spanish producers, Hercules, Amoco and BP, at that meeting Anic did not provide data on its sales for September 1982, contrary to what it had done at the meeting of 9 June 1982, since its figures, like those of two of the above-mentioned producers, are accompanied by the note "est.", which clearly means "estimate".

94 Consequently, it must be concluded that the applicant was wrong when it indicated in its reply to the request for information that it had taken part in the meeting of 6 October 1982.

95 As regards the regularity of the applicant' s participation in the system of periodic meetings, the Court holds that the Commission was entitled to conclude from ICI' s reply to the request for information that Anic' s participation was regular from the end of 1978 or the beginning of 1979 to mid-1982.

96 The Commission was also entitled to take the view, based on ICI' s reply to the request for information, which is borne out by numerous notes of meetings, that during the period when the applicant was still present on the market the purpose of the meetings was, in particular, to fix target prices and sales volumes. That reply states: "' Target prices' for the basic grade of each principal category of polypropylene as proposed by producers from time to time since 1 January 1979 are set forth in Schedule ..." and "A number of proposals for the volume of individual producers were discussed at meetings".

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

98 It should be added that the Commission was also entitled to conclude from ICI' s reply to the request for information, which states:

"Only 'Bosses' and 'Experts' meetings came to be held on a monthly basis ... By late 1978/early 1979 it was determined that the 'ad hoc' meetings of Senior Managers should be supplemented by meetings of lower level managers with more marketing knowledge",

and from the identical nature and purpose of the meetings that they were part of a system of regular meetings. GROUNDS CONTINUED UNDER DOC.NUM : 689A0006.1

99 It must also be noted that the allegedly passive nature of Anic' s participation in the meetings is belied in particular by the fact that it provided information on its monthly sales tonnages, for example at the meeting of 9 June 1982 (main statement of objections, Appendix 25), and by the fact that its name appears in various tables (main statement of objections, Appendices 55 to 62) the contents of which must have been provided inter alia by the applicant in the meetings in which it participated. Most of the applicants have admitted in their replies to a written question from the Court that it would not have been possible to draw up the tables found at the premises of ICI, ATO and Hercules on the basis of the statistics available under the Fides data exchange system, and in its reply to the request for information ICI stated with reference to one of those tables that "the source of information for actual historic figures in this table would have been the producers themselves".

100 It follows that the Commission has established to the requisite legal standard that the applicant regularly participated in the system of regular meetings of polypropylene producers from the end of 1978 or the beginning of 1979 until mid-1982, that the purpose of those meetings was, in particular, to fix price and sales volume targets, that they were part of a system and that the applicant' s participation in those meetings was not purely passive. However, the Commission has not established to the requisite legal standard that that participation continued beyond mid-1982.

B. The price initiatives

(a) The contested decision

101 According to the Decision (points 28 to 46), a system for fixing price targets was implemented through price initiatives of which five could be identified during the material period, the first lasting from July to December 1979, the second from January to May 1981, the third from August to December 1981, the fourth from June to July 1982 and the fifth from September to November 1982.

102 The Decision (point 33) mentions the applicant by name in this regard only to assert that in January 1981 it took part in two meetings at which it was decided that a price increase, fixed in December 1980 for 1 February 1981, was required on the basis of DM 1.75/kg for raffia. The increase took place in two stages; the initial increase remained effective for 1 February and a further increase was to be introduced "without exception" from 1 March.

103 The Decision (point 77, second paragraph) acknowledges that the applicant did not supply any price instructions but states that the notes of meetings and other documents nevertheless show that participated regularly in meetings in which price initiatives were discussed and agreed.

(b) Arguments of the parties

104 Without denying all participation in the price initiatives, the applicant maintains that the Commission has not adduced proof of its participation. It argues that the Commission has not been able to prove its participation in specific meetings or been able to find any price instructions sent by the applicant to its sales offices.

105 It states that the prices it charged were always different from the target prices, that it never had a list price for polypropylene and that the prices charged by its sales offices were the result of an independent assessment of the market in accordance with the laws of competition.

106 The Commission deduces the applicant' s participation in the price initiatives from its participation in the meetings which were concerned mainly with setting price targets.

107 It adds that if it has been unable to collect more evidence that is because Anic has not retained any documents concerning that period. The Commission considers that Anic cannot escape liability by simply denying the existence of any written trace of price instructions, when it does not deny taking part in the producers' meetings.

108 The Commission maintains that the fact that the meetings were followed by similar price instructions issued by the various producers shows that they were not simply information meetings but that their purpose was instead to coordinate the producers' conduct on the market as regards price.

(c) Assessment by the Court

109 The Court finds that the records of the regular meetings of polypropylene producers show that the producers which participated in those meetings agreed to the price initiatives mentioned in the Decision. For example, the note of the two meetings in January 1981 (main statement of objections, Appendix 17) states:

"Whilst all the evidence pointed to actual prices not reaching the previous target levels in February it was agreed that the DM 1.75 target should remain and that DM 2.00 should be introduced without exception in March."

110 Since it has been established to the requisite legal standard that the applicant participated regularly in those meetings from the end of 1978 or the beginning of 1979 until mid-1982, it cannot assert that it did not support the price initiatives which were decided on, planned and monitored at those meetings, without providing any evidence to corroborate that assertion. In the absence of such evidence, there is no reason to believe that the applicant would not have supported those initiatives, unlike other participants at the meetings.

111 It should be observed that the applicant has put forward two arguments to show that it did not subscribe to the agreed price initiatives. It states, first, that its participation in the meetings was purely passive and, secondly, that it took no account of the results of the meetings in determining its conduct on the market as regards price, and that if some degree of parallel movement can be observed in the reactions of Anic and of the other producers that was due to movements in raw material prices and the normal conduct of a small producer in a market dominated by the "big four".

112 Neither of those arguments can be upheld in order to corroborate the applicant' s assertion that it did not subscribe to the agreed price initiatives. The Court should point out that the Commission has established to the requisite legal standard that the applicant' s participation in the meetings was not purely passive, so that the first argument put forward by the applicant is not founded in fact. As regards the second argument, it may be observed that even if it were supported by the facts it would not contradict the applicant' s participation in fixing target prices at the meetings but would at most show that the applicant did not put into effect the results of those meetings. Indeed, the Decision does not assert that the applicant charged prices which always corresponded to the price targets agreed upon at the meetings, which indicates that the contested measure does not rely on the implementation by the applicant of the results of the meetings in order to establish its participation in fixing those target prices.

113 It should also be pointed out that although the Commission was not able to obtain price instructions issued by the applicant and thus had no proof of its implementation of the price initiatives in question or of parallel conduct, that does not impugn in any way the finding that the applicant participated in those initiatives.

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

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

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

115 It follows that the Commission has established to the requisite legal standard that the applicant was one of the polypropylene producers amongst whom there emerged common intentions concerning the price initiatives mentioned in points 29 to 39 of the Decision and that those initiatives were part of a system. However, since it has not proved to the requisite legal standard that the applicant participated in the regular meetings in the second half of 1982, the Commission has not established to the requisite legal standard that the applicant participated in the price initiative mentioned in points 40 to 46 of the Decision.

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

(a) The contested decision

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

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

(b) Arguments of the parties

118 The applicant maintains that it is difficult to understand what the Commission is referring to when it accuses the applicant of having participated in temporary restrictions on output, the exchange of detailed information on deliveries and the organization of local meetings. It states that the Commission has no evidence of its participation in those activities. It always produced at its maximum effective capacity, subject to reductions owing to strikes in 1980 and 1981 and to equipment breakdowns in 1980 and 1981. In the notes of meetings drawn up by an ICI employee there is no reference to information on Anic' s deliveries; the only reference is to market share, almost always for Anic and SIR together. Finally, the Decision makes no mention of its participation in local meetings, or even to the existence of such meetings in Italy.

119 As regards its participation in the "account management" system, the applicant points out that that system was developed during a period when it no longer participated in the meetings.

120 The Commission states that the objections concerning temporary restrictions on output and the holding of local meetings are mentioned in points 71 and 43 of the main statement of objections and the exchange of detailed information on deliveries is discussed in points 56 to 59 of the Decision, on the temporary restrictions of sales volumes in 1981 and 1982. As for the system of "account management", the Commission states that it has never sought to assert that the applicant was responsible, and it is for that reason that the statement of objections does not mention it.

(c) Assessment by the Court

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

122 It must be concluded that the Commission has not been able to establish to the requisite legal standard that the applicant participated in the meetings during which that set of measures was adopted (in particular those of 13 May, 2 and 21 September and 2 December 1982 (main statement of objections, Appendices 24, 29, 30 and 33) ), and that it has therefore not established to the requisite legal standard that the applicant subscribed to that set of measures.

123 It follows, first, that the applicant' s participation in the "account management" system has not been proved to the requisite legal standard. The Commission stated in its defence that it had never sought to hold Anic responsible in that respect. The Court observes, however, that such a limitation of the objections raised against the applicant is not apparent from the Decision or from the statements of objections. In the Decision (point 19, first paragraph, and point 78, seventh paragrph) the Commission left open the possibility that the applicant had participated in the meetings during the second half of 1982, which implies that it must also have considered that if that were the case the applicant had taken part in the measures described in point 27, which were adopted at those meetings and of which all the producers which took part in the regular meetings without exception are accused. In particular, point 85 of the main statement of objections states that "the producers devised a scheme to implement the planned price increases on a customer-by-customer basis", and neither that statement nor the particular objections addressed to the applicant contain any limitation on that objection in its respect.

124 It follows, secondly, that the applicant' s participation in the output restrictions has not been proved to the requisite legal standard either. In its defence the Commission maintained that objection in relation to the applicant, referring to point 71 of the main statement of objections (in fact the relevant points are points 67 and 79), while at the hearing it stated that it had never accused the applicant of having participated directly in this conduct on the market.

125 The Commission further asserted that its objection regarding the exchange of information on sales, which is also mentioned in point 27 of the Decision, was not distinct from its objection regarding the quotas for 1981 and 1982 (Decision, Article 1(e) ) and should therefore be examined with the latter.

126 As regards the applicant' s participation in local meetings, the Commission stated at the hearing that it did not accuse the applicant of such participation. Point 20 of the Decision lists the producers against which this objection is made and the applicant is not one of them. Consequently, it must be held that this objection was not raised against the applicant in the contested measure.

127 It follows from the foregoing that the Commission has not established to the requisite legal standard that the applicant was one of the polypropylene producers amongst whom there emerged common intentions concerning the measures designed to facilitate the implementation of the price initiatives, in so far as the Decision accuses it of having taken part.

D. Target tonnages and quotas

(a) The contested decision

128 According to the Decision (point 31, third paragraph), it was "recognized that a tight quota system [was] essential" at the meeting held on 26 and 27 September 1979, the note of which refers to a scheme proposed or agreed in Zurich to limit monthly sales to 80% of the average achieved during the first eight months of the year.

129 The Decision (point 52) further points out that before August 1982 various schemes for sharing the market were applied. While percentage shares of the estimated available business had been allocated to each producer, there was not at this stage any systematic limitation in advance of overall production. Thus, estimates of the total market had to be revised on a rolling basis and the sales (in tonnes) of each producer had to be adjusted to fit the percentage entitlement.

130 Volume targets (in tonnes) were set for 1979 based in part at least on sales in the preceding three years. Tables found at the premises of ICI show the "revised target" for each producer for 1979 compared with actual tonnage sales achieved during that period in Western Europe (Decision, point 54).

131 By the end of February 1980, volume targets - again expressed in tonnage terms - had been agreed for 1980 by the producers, based on an expected market of 1 390 000 tonnes. According to the Decision (point 55), a number of tables showing the "agreed targets" for each producer for 1980 were found at the premises of ATO and ICI. The original estimated total market available proved over-optimistic and the quota of each producer had to be revised downwards to fit total consumption during the year of only 1 200 000 tonnes. Except for ICI and DSM, the sales achieved by the various producers were largely in line with their targets.

132 According to the Decision (point 56), the sharing of the market for 1981 was the subject of prolonged and complex negotiations. At the meetings in January 1981, it was agreed that as a temporary measure to help to achieve the February/March price initiative each producer would restrict monthly sales to one-twelfth of 85% of the 1980 "target". In preparation for a more permanent scheme, each producer communicated to the meeting the tonnage it hoped to sell during 1981. However, added together, those "aspirations" largely exceeded total forecast demand. In spite of various compromise schemes put forward by Shell and ICI, no definitive quota agreement was reached for 1981. As a stopgap measure the producers took the previous year' s quota of each producer as a theoretical entitlement and reported their actual sales each month to the meeting. In this way actual sales were monitored against a notional split of the available market based on the 1980 quota (Decision, point 57).

133 The Decision (point 58) states that for a 1982 scheme complicated proposals were advanced which attempted to reconcile divergent factors such as previous achievements, market aspirations and available capacity. The total market to be divided was estimated at 1 450 000 tonnes. Some producers submitted detailed plans for market sharing while others were content to communicate only their own tonnage aspirations. At the meeting on 10 March 1982 Monte and ICI tried to reach an agreement. The Decision (point 58, last paragraph) states, however, that, as in 1981, no definitive agreement was reached and for the first half of the year the monthly sales for each producer were communicated during the meetings and monitored against its achieved percentage share in the previous year. According to the Decision (point 59), in the August 1982 meeting negotiations for an agreement on quotas for 1983 were held and ICI held bilateral discussions with each of the producers on the new system. However, pending the introduction of such a quota scheme, producers were required in the second part of 1982 to aim to restrict their monthly sales to the same percentage of the overall market which each of them had achieved in the first six months of 1982. Thus, in 1982, the market shares had reached a relative equilibrium and were stable in comparison with previous years in the case of the majority of producers.

134 According to the Decision (point 60), for 1983 ICI invited each producer to indicate its own quota ambitions and suggestions for what percentage each of the others should be allowed. Monte, Anic, ATO, DSM, Linz, Saga and Solvay, as well as the German producers via BASF, submitted their own detailed proposals. The various proposals were then processed by computer to obtain an average which was compared with the aspirations of each producer. Those steps enabled ICI to propose guidelines for a new framework agreement for 1983. Those proposals were discussed at the meetings of November and December 1982. A proposal initially restricted to the first quarter of the year was discussed at the meeting on 2 December 1982. The note of that meeting drawn up by ICI shows that ATO, DSM, Hoechst, Huels, ICI, Monte and Solvay, as well as Hercules, found their allocated quota "acceptable" (Decision, point 63). Those facts are borne out by the ICI note of a telephone conversation with Hercules of 3 December 1982.

135 The Decision (point 77, second paragraph, in fine) states that the documentation relating to the quota arrangements shows that the applicant was fully involved in those arrangements throughout the period of its presence on the polypropylene market and that it was still involved in the quota arrangements covering the first quarter of 1983 at least (point 78, seventh paragraph).

(b) Arguments of the parties

136 In respect of the years 1979 to 1982 the applicant argues that the tables mentioned by the Commission (main statement of objections, Appendices 55 to 62) were drawn up by third parties and not by it itself; accordingly, they can only reflect the thoughts of their author and cannot constitute conclusive proof of Anic' s participation in their preparation or of any correspondence between what is written and the objective reality.

137 It considers that the fact that its name is mentioned in the tables is not conclusive for two reasons: first, there is nothing to show that those tables are the result of discussions between the producers and , secondly, Anic is mentioned jointly with SIR as regards both its sales figures and its quota, which Anic would never have accepted, in view of the vigorous competition between the two undertakings.

138 The applicant further states that its participation in the quota system is disproved by the fact that its plant was always used at its maximum capacity, except during strikes and equipment breakdowns in 1980 and 1981.

139 As regards 1983, the applicant maintains that it is not plausible that it could have participated in the quota agreements by informing ICI of its aspirations, since it did not attend the meetings at which those agreements were concluded and it has not been proved that there were contacts between it and other producers for that purpose outside the meetings. In order to assert the contrary the Commission relies on suppositions which have no foundation in reality, thus seeking to reverse the burden of proof.

140 Moreover, the alleged communication of its aspirations in a document of 28 October 1982 (main statement of objections, Appendix 76) cannot be regarded as good evidence since it concerns 1983, and Anic had transferred its polypropylene business to Monte after mid-1982. It ceased to take part in the meetings in mid-1982 and it would have been illogical for it to participate in late 1982 in negotiations on a quota agreement for 1983 concerning a market which it would have left. The applicant therefore denies that the document in question has any evidentiary value, and states that the document cannot have come from it.

141 The Commission considers that Anic' s participation in the quota agreements must be inferred from the fact that its name appears in various tables (main statement of objections, Appendices 55 to 62) which contain sales figures for various years for all the west European polypropylene producers, along with "revised targets", "quotas", "aspirations" or "agreed targets". Most of those tables were drawn up between 1979 and 1982 and concern sales volumes for those years. They were found at the premises of ICI and ATO in particular, and came from various producers. To those tables the Commission adds the note of the meetings of January 1981 (main statement of objections, Appendix 17), to which a table comparing "targets" and "actual" sales is attached.

142 It states that, contrary to Anic' s assertions, not all those documents come from ICI and in most of them the figures for Anic are stated separately from those for SIR.

143 The Commission also states that those documents contain figures which must necessarily have come from Anic itself.

144 It further maintains that Anic took part in the 1983 quota agreements. It bases that view on the combination of two documents (main statement of objections, Appendices 73 and 76). The first, which contains a concise description of the quota system for 1983, was found at the premises of ICI and shows that ICI asked the producers to set out individually their own aspirations for quotas, which they did, as is shown by various documents (main statement of objections, Appendices 74 to 77). According to the Commission, the second document is Anic' s statement of its aspirations. All those aspirations were incorporated in a computer summary prepared by ICI (main statement of objections, Appendix 85).

145 The Commission states in this regard that even though Anic did not attend the meetings which were held during this period it continued to participate in the quota agreements. The cartel did not consist solely in presence at the meetings, and it cannot be inferred from the applicant' s absence from one or other of the meetings that it had ceased to be a member of the cartel, for such absence does not in itself mean that it was not aware of the outcome of those meetings or that it did not subscribe to their outcome, as is shown by the document dated 28 October 1982 containing Anic' s aspirations (main statement of objections, Appendix 76) and ICI' s reply to the request for information (main statement of objections, Appendix 8), which indicates that there were contacts with absent producers.

146 It adds that, contrary to the applicant' s assertions, it is entirely plausible that it should have continued to participate in such agreements in 1983, since although it transfered its business to Monte at the end of 1982 it remained in the market until April 1983. The Commission bases that assertion on the annexes to Anic' s reply to the request for information, which contains Anic' s polypropylene production figures. Anic provided figures for the period until April 1983. The Commission therefore considers that it is not at all illogical that Anic should have taken part in October 1982 in negotiations for a 1983 quota agreement.

(c) Assessment by the Court

147 It has already been found that from the end of 1978 or the beginning of 1979 until mid-1982 the applicant participated regularly in the system of regular meetings of polypropylene producers at which discussions relating to the sales volumes of the various producers were held and information was exchanged on that subject.

148 In addition to Anic' s participation in the meetings, it should be pointed out that its name appears in various tables (main statement of objections, Appendices 55 et seq.) whose content clearly indicates that they were intended to be used in setting sales volume targets. Most of the applicants have admitted in their replies to a written question from the Court that it would not have been possible to draw up the tables found at the premises of ICI, ATO and Hercules on the basis of the statistics available under the Fides system, and in its reply to the request for information (main statement of objections, Appendix 8) ICI stated with reference to one of those tables that "the source of information for actual historic figures in this table would have been the producers themselves". The Commission was therefore entitled to take the view that the content of those tables had been provided by Anic in the meetings in which it participated.

149 The terms used in the various documents relating to the years 1979 and 1980 produced by the Commission (such as "revised target", "opening suggestions", "proposed adjustments", "agreed targets") justify the conclusion that the producers had arrived at a common purpose.

150 As regards the year 1979 in particular, having regard both to the whole of the note of the meeting of 26 and 27 September 1979 (main statement of objections, Appendix 12) and to the undated table taken from the premises of ICI (main statement of objections, Appendix 55) headed "Producers' Sales to West Europe", which sets out for all the polypropylene producers of western Europe the sales figures in kilotonnes for 1976, 1977 and 1978 and figures under the headings "1979 actual", "revised target" and "79", it is apparent that the need to tighten the quota system agreed for 1979 for the last three months of that year was recognized at that meeting. The term "tight", read in conjunction with the restriction to 80% of one-twelfth of planned annual sales, indicates that the scheme originally planned for 1979 had to be made tighter for those last three months. That interpretation of the note is borne out by the abovementioned table because it contains, under the heading "79" in the last column to the right of the column headed "revised target", figures which must correspond to the quotas initially fixed. These had to be circumscribed because they had been drawn up on the basis of an over-optimistic market evaluation, as was also the case in 1980. The reference in the third paragraph of point 31 of the Decision to a scheme "proposed or agreed in Zurich to limit monthly sales to 80% of the average achieved during the first eight months of the year" does not tell against these findings. That reference, read in conjunction with point 54 of the Decision, is to be taken as meaning that sales volume targets had already been set initially for the monthly sales of the first eight months of 1979.

151 As regards the year 1980, the Court finds that it is clear from the table dated 26 February 1980 found at the premises of ATO (main statement of objections, Appendix 60), which contains a column headed "agreed targets 1980", and from the note of the January 1981 meetings (main statement of objections, Appendix 17) at which producers, including the applicant, compared the quantities actually sold ("Actual kt") with the targets set ("Target kt"), that sales volume targets were set for the whole of the year. Those documents are further supported by a table dated 8 October 1980 (main statement of objections, Appendix 57) comparing two columns, one setting out the "1980 Nameplate Capacity" and the other the "1980 Quota" for the various producers.

152 As regards the year 1981, the complaint against the producers is that they took part in negotiations in order to reach a quota agreement for that year and that in that context they communicated their "aspirations" and, pending such an agreement, agreed as a temporary measure to restrict their monthly sales to one-twelfth of 85% of the "target" agreed for 1980 during February and March 1981, that they took the previous year' s quota as a theoretical entitlement for the rest of the year, that they reported their sales each month to the meetings and, finally, that they monitored whether their sales matched the theoretical quota allocated to them.

153 The existence of negotiations between the producers in order to achieve the establishment of a quota system and the communication of their "aspirations" during those negotiations are attested by various pieces of evidence such as tables setting out, for each producer, its "actual" figures and "targets" for the years 1979 and 1980 and its "aspirations" for 1981 (main statement of objections, Appendices 59 and 61); a table written in Italian (main statement of objections, Appendix 62) setting out, for each producer, its quota for 1980, the proposals of other producers as to the quota to be allocated to it for 1981 and its own "aspirations" for 1981, and an ICI internal note (main statement of objections, Appendix 63) describing the progress of those negotiations in which it is stated:

"Taking the various alternatives discussed at yesterday' s meeting we would prefer to limit the volume to be shared to no more than the market is expected to reach in 1981, say 1.35 million tonnes. Although there has been no further discussion with Shell, the four majors could set the lead by accepting a reduction in their 1980 target market share of about 0.35% provided the more ambitious smaller producers such as Solvay, Saga, DSM, Chemie Linz, Anic/SIR also tempered their demands. Provided the majors are in agreement the anomalies could be best handled by individual discussions at Senior level, if possible before the meeting in Zurich".

That document is accompanied by a compromise proposal, supported by figures, which compares the result obtained for each producer in relation to 1980 ("% of 1980 target").

154 The adoption of temporary measures consisting in a reduction of monthly sales to one-twelfth of 85% of the target agreed for the previous year during February and March 1981 is apparent from the note of the meetings of January 1981, in which it is stated:

"In the meantime [February-March] monthly volume would be restricted to 1/12 of 85% of the 1980 target with a freeze on customers".

155 The fact that the producers each took their previous year' s quota as a theoretical entitlement for the rest of the year and monitored whether sales matched that quota by exchanging their sales figures each month is established by the combination of three documents: first, a table dated 21 December 1981 (main statement of objections, Appendix 67) setting out for each producer its sales broken down by month, the last three columns, relating to the months of November and December and the annual total, having been added by hand; secondly, an undated table written in Italian entitled "Scarti per società" ("Differences company by company") and found at the premises of ICI (main statement of objections, Appendix 65), comparing for each producer for the period January-December 1981 the "actual" sales figures with the "theoretic" figures; and finally, an undated table found at the premises of ICI (main statement of objections, Appendix 68) comparing for each producer for the period January-November 1981 sales figures and market shares with those for 1979 and 1980 and making a forward projection to the end of the year.

156 The first table shows that the producers exchanged their monthly sales figures. Combined with the comparisons made between those figures and those achieved in 1980 (comparisons which are made in the two other tables covering the same period - such an exchange of information which an independent operator would keep strictly secret as confidential business information corroborates the conclusions reached in the Decision.

157 The applicant' s participation in those various activities is apparent, first, from its participation in the meetings at which those activities took place, in particular the January 1981 meetings, and, secondly, from the fact that its name appears in the various documents mentioned above. Furthermore, in those documents are set out figures with regard to which ICI in fact stated in its reply to a written question from the Court - to which other applicants refer in their own reply - that it would not have been possible to ascertain them on the basis of the statistical data available under the Fides system.

158 As regards 1982, the complaint against the producers is that they took part in negotiations in order to reach an agreement on quotas for that year; that in that connection they communicated their tonnage aspirations; that, failing a definitive agreement, they communicated at meetings their monthly sales figures during the first half of the year, comparing them with the percentage achieved during the previous year and, during the second half of the year, attempting to restrict their monthly sales to the same percentage of the overall market achieved in the first six months of that year.

159 The existence of negotiations between the producers with a view to introducing a quota system and the communication of their aspirations during those negotiations are evidenced, first, by a document entitled "Scheme for discussions 'quota system 1982' " (main statement of objections, Annex 69), which contains, for all the addressees of the Decision with the exception of Hercules, the tonnage to which each producer considered itself entitled and, in addition, for some of them (all the producers except Anic, Linz, Petrofina, Shell and Solvay), the tonnage which in their own view had to be allocated to the other producers; secondly, by an ICI note entitled "Polypropylene 1982, Guidelines" (main statement of objections, Appendix 70(a) ), in which ICI analyses the negotiations in progress; thirdly, by a table dated 17 February 1982 (main statement of objections, Appendix 70(b) ), in which various sales-sharing proposals are compared - one of which, entitled "ICI Original Scheme", has undergone, in another handwritten table, minor adjustments made by Monte in a column entitled "Milliavacca 27/1/82" (the name is that of a Monte employee) (main statement of objections, Appendix 70(c) ) - and, lastly, by a table written in Italian (main statement of objections, Appendix 71) which is a complex proposal (mentioned in the second paragraph in fine of point 58 of the Decision).

160 The measures adopted for the first half of the year are established by the note of the meeting on 13 May 1982 (main statement of objections, Appendix 24), which states inter alia:

"To support the move a number of other actions are needed (a) limit sales volume to some agreed prop. of normal sales".

The implementation of those measures is evidenced by the note of the meeting of 9 June 1982 (main statement of objections, Appendix 25), to which is attached a table setting out for each producer the "actual" figure for its sales for the months from January to April 1982 compared with a figure representing the "theoretical based on 1981 av[erage] market share", and by the note of the meeting held on 20 and 21 July 1982 (main statement of objections, Appendix 26