Judgment of the Court of First Instance (First Chamber) of 10 March 1992. - Imperial Chemical Industries plc v Commission of the European Communities. - Competition - Concepts of agreement and concerted practice - Collective responsibility. - Case T-13/89.



European Court reports 1992 Page II-01021

Swedish special edition Page II-00183

Finnish special edition Page II-00175



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

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

(EEC Treaty, Art. 85(1))

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

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

(EEC Treaty, Art. 85(1))

4. Competition - Cartels - Prohibition - Agreements continuing to produce their effects after they have formally ceased to be in force - Application of Article 85 of the Treaty

(EEC Treaty, Art. 85)

5. Competition - Cartels - Concerted practice - Meaning - Coordination and cooperation incompatible with the requirement for each undertaking to determine independently its conduct on the market - Meetings between competitors having as their purpose the exchange of information decisive for the particpants' 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. Acts of the institutions - Reasoning - Duty to state reasons - Scope - Decision implementing the competition rules

(EEC Treaty, Art. 190)

9. Competition - Fines - Amount - Determination - Criteria - Gravity of the infringement - Assessment factors - Raising of the general level of fines - Whether permissible - Conditions

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

10. Acts of the institutions - Presumption of validity - Challenge - Conditions

Summary

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

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

3. 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.

4. Article 85 of the EEC Treaty is applicable to agreements between undertakings which are no longer in force but which continue to produce their effects after they have formally ceased to be in force.

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 which they intend to charge, their profitability thresholds, the sales volume restrictions they judge to be necessary or their sales figures constitutes a concerted practice since the participant undertakings cannot fail to take account of the information thus disclosed in determining their conduct on the market.

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 as 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. Although under Article 190 of the EEC Treaty the Commission is obliged to state the reasons on which its decisions are based, mentioning the factual and legal elements which provide the legal basis for the measure and the considerations which led it to adopt its decision, it is not required, in the case of a decision applying the competition rules, to discuss all the issues of fact and of law raised by every party during the administrative proceedings.

9. In assessing the gravity of an infringement for the purpose of fixing the amount of the fine the Commission must take into consideration not only the particular circumstances of the case but also the context in which the infringement occurs and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community.

The fact that in the past the Commission has imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy. In particular, it is open to the Commission to raise the level of fines in order to strengthen their deterrent effect when, although infringements of a specific type have been established as being unlawful at the outset of Community competition policy, they are still relatively frequent on account of the profit that some of the undertakings concerned are able to derive from them.

10. Since a measure which has been notified and published must be presumed to be valid, it is for a person who seeks to allege the lack of formal validity or the inexistence of a measure to provide the Court with grounds enabling it to look behind the apparent validity of the measure in question.

Parties

In Case T-13/89,

Imperial Chemical Industries plc, a company incorporated under English law, having its registered office at Imperial Chemical House, Millbank, London (United Kingdom), represented by David Vaughan QC, of the Inner Temple, Victor O. White and Richard J. Coles, Solicitors, and by D. Anderson, Barrister, with an address for service in Luxembourg at the Chambers of Maître L.H. Dupong, 14a Rue des Bains,

applicant,

v

Commission of the European Communities, represented by Anthony McClellan, Principal Legal Adviser, and Karen Banks, a member of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of R. Hayder, a representative of its Legal Service, Wagner Centre, Kirchberg,

defendant,

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

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(First Chamber),

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

Advocate General: B. Vesterdorf,

Registrar: H. Jung,

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

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

gives the following

Judgment

Grounds

Facts and background to the action

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

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

3 Imperial Chemical Industries PLC was one of the producers supplying the polypropylene market in 1977 and is one of the "big four". Its market share was between about 10.6 and 11.4%.

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

- ATO Chimie SA, now Atochem ("ATO"),

- BASF AG ("BASF"),

- DSM NV ("DSM"),

- Hercules Chemicals NV ("Hercules"),

- Hoechst AG ("Hoechst"),

- Chemische Werke Huels ("Huels"),

- Imperial Chemical Industries PLC ("ICI"),

- Montepolimeri SpA, now Montedipe ("Monte"),

- Shell International Chemical Company Limited ("Shell"),

- Solvay et Cie SA ("Solvay"),

- BP Chimie ("BP").

No investigations were carried out at the premises of Rhône-Poulenc SA ("Rhône-Poulenc") or at the premises of Enichem Anic SpA.

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

- Amoco,

- Chemie Linz AG ("Linz"),

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

- Petrofina SA ("Petrofina"),

- Enichem Anic SpA ("Anic").

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

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

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

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

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

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

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

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

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

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

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

"Article 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 2

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

Article 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 4

...

Article 5

..."

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

Procedure

17 These are the circumstances in which, by application lodged at the Registry of the Court of Justice on 6 August 1986, the applicant brought this action seeking annulment of the Decision. Thirteen of the fourteen other addressees of the Decision have also brought actions for its annulment (Cases T-1/89 to T-4/89, T-6/89 to T-12/89, T-14/89 and T-15/89).

18 By a separate document lodged on the same day, ICI requested the Court of Justice, pursuant to Article 91 of the Rules of Procedure of the Court of Justice, to order the Commission to produce the documents which it had refused to disclose to it. That application was dismissed by order of the Court of Justice of 11 December 1986 (Case 212/86 R ICI v Commission, not published in the Reports of Cases before the Court).

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

20 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").

21 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.

22 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.

23 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.

24 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.

25 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.

26 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.

27 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.

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

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

Forms of order sought by the parties

30 ICI claims that the Court should:

(i) annul the Commission' s decision of 23 April 1986 (IV/31.149 - Polypropylene) in so far as it concerns ICI;

(ii) cancel or reduce the fine imposed on ICI;

(iii) if ICI were obliged to pay the fine at the present stage without being able to suspend payment, order the Commission to repay to ICI the fine paid or the appropriate proportion thereof, together with interest at the rate of 1% over the lending rate set by the bank in the United Kingdom referred to in Article 4 of the decision;

(iv) order the Commission to pay ICI' s costs.

The Commission claims that the Court should:

(i) dismiss the application;

(ii) order the applicant to pay the costs.

Substance

31 The Tribunal considers that it is necessary to examine, first, the applicant' s grounds of challenge relating to a breach of the rights of the defence allegedly committed by the Commission in so far as it (1) failed to disclose to the applicant documents on which it based the Decision, (2) did not communicate to the applicant the hearing officer' s report and (3) made a premature judgment based on preconceived ideas; 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 anti-competitive object or effect or (C) did not correctly assess how trade between Member States was affected; thirdly, the grounds of challenge relating to the reasoning of the Decision; and, fourthly, the grounds of challenge relating to the determination of the fine, which is alleged to be (1) partially time-barred, (2) disproportionate to the duration of the alleged infringement and (3) disproportionate to the gravity of the alleged infringement.

The rights of the defence

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

32 The applicant contends that when the Commission notified it of the statement of objections it did not send it 14 documents or sets of documents on which it based the Decision and that the Commission thus made it impossible for it to explain their contents. The documents concerned consist of documents obtained at the premises of ATO relating to the exchange of information on deliveries by the French producers and the operation of quotas on the French market in 1979 (Decision, point 15(h) ), a document allegedly found at the premises of Solvay dated 6 December 1977 (Decision, point 16, penultimate paragraph), two sets of minutes of Shell internal meetings held on 5 July and 12 September 1979 (Decision, points 29 and 31), a Solvay internal document comparing "achieved prices" for October and November 1980 with "list prices" for January 1981 (Decision, point 32), a reminder sent by Solvay to its sales offices on 17 July 1981 (Decision, point 35), a Shell document relating to the fixing of a price target on 1 November 1981 (Decision, point 36, first paragraph), a Hercules note showing that in December 1981 the target price was revised downwards (Decision, point 36, second paragraph), an internal Hoechst note dated 6 June 1983 fixing a minimum price from 1 July of that year and a Linz telex of 8 June 1983 (Decision, point 49), two Shell documents headed "PP W. Europe - Pricing" and "Market quality report" (Decision, point 49), an internal ATO note dated 28 September 1983 (Decision, point 51) and, finally, a planning document relating to the first quarter of 1983 found at the premises of Shell (Decision, point 63, third paragraph, and point 64).

33 The Commission states that the documents mentioned in points 15, 32 or 35 of the Decision were made available to the applicant during the access-to-file procedure. Linz' s telex of 8 June 1983 was disclosed as Appendix Linz H1 to the letter of 29 March 1985. In a very limited number of cases, it considered that the documents contained sensitive business information of a particular producer and consequently did not allow access by other producers. It concludes that none of the documents cited by the applicant was in any event essential to the case since those documents either did not concern ICI or merely confirmed other documents. Indeed, the applicant has not attempted to explain how its rights of defence could have been affected by the non-disclosure of the documents in question.

34 The Court notes that, according to the case-law of the Court of Justice, the important point is not the documents as such but the conclusions which the Commission has drawn from them, and if those documents were not mentioned in the statement of objections, the undertaking concerned was entitled to take the view that they were of no importance for the purposes of the case. By not informing an undertaking that certain documents would be used in the Decision, the Commission prevented it from putting forward at the appropriate time its view of the probative value of such documents. It follows that those documents cannot be regarded as admissible evidence as far as it is concerned (judgment of the Court of Justice in Case 107/82 AEG-Telefunken AG v Commission [1983] ECR 3151, paragraph 27, and see most recently the judgment of 3 July 1991 in Case C-62/86 AKZO Chemie v Commission [1991] ECR I-3359, at paragraph 21).

35 In this instance, only the documents mentioned in the main or specific statements of objections or in the letter of 29 March 1985, or those appended to them without being specifically mentioned therein, may be treated as admissible evidence as against the applicant in the present case. As far as the documents which are appended to the statements of objections but which are not mentioned therein are concerned, they may be used in the Decision as against the applicant only if the applicant could reasonably deduce from the statements of objections the conclusions which the Commission intended to draw from them.

36 It follows that, of the documents mentioned by the applicant, only Linz' s telex dated 8 June 1983 may be used as evidence against the applicant, since it was mentioned in the letter of 29 March 1985, of which it also forms Appendix Linz H1. The other documents referred to by the applicant may not be considered to be evidence admissible against it in the present case.

37 The question whether the last-mentioned documents provide essential support for the findings of fact made by the Commission against the applicant in the Decision falls to be considered by the Court in its examination of the question whether those findings are well founded.

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

38 The applicant contends that the hearing officer' s report was not made available to it despite the request to this effect which it made to the Commission. It points out that it requested the Court of Justice, under Article 91 of the Rules of Procedure, to order the Commission to produce this report, in which, according to the applicant, the hearing officer acknowledged the existence of intense competition on the market. It is aware that this application was dismissed by an order of the Court of Justice of 11 December 1986 (Case 212/86 R ICI v Commission, not published in the Reports of Cases before the Court, paragraphs 5 to 8) but nevertheless requests the Court of First Instance to order the production of that report or at least to take note of it owing to the weaknesses of the Commission' s argument as to the substance.

39 The Commission relies on the aforementioned order which the Court of Justice made in Case 212/86 R (paragraph 7) as authority for refusing to disclose the hearing officer' s report. It considers that there is no reason to reverse that order.

40 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 NV v Commission [1983] ECR 3461, paragraph 7 at p. 3498).

41 It is to be noted in this regard that the purpose of the hearing officer' s report is neither to supplement or correct the undertakings' arguments nor to set forth fresh objections or adduce fresh evidence against the undertakings but to express the opinion of a Commission official with a view to the adoption of a decision by the Commission. It follows, first, 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) and, secondly, that there is no reason for this Court to order the Commission to produce that report.

42 Consequently, this ground of challenge must be dismissed.

3. Premature judgment and preconceived views

43 The applicant contends that the Commission failed in its duties imposed on it by the case-law of the Court of Justice and its own stated views (judgment of the Court of Justice in Case 86/82 Hasselblad (GB) Limited v Commission [1984] ECR 883, Opinion at pages 914 and 915, and paragraph 45 of the Commission' s Fifteenth Report on Competition Policy) in not approaching the matter with an open mind and in prejudging the issue, although it moderated its position to a certain extent following the submission of ICI' s observations and the hearing of ICI. This premature judgment led the Commission to conclude that the infringements were of the "utmost gravity", to impose such a large fine and, despite the contrary view taken by the hearing officer, to refuse to recognize the existence of intense competition on the market during the period in question and the total lack of effect on the market, particularly on prices, of any arrangement made between the producers. Thus, the Commission showed that it was determined not to have its preconceived views affected by the detailed evidence, studies and experts' reports.

44 The Commission contends that it cannot be accused of having prejudged the issue since the position taken in the Decision is justified and was reached after taking account of the arguments of the parties. Thus, in the present case, the Commission was convinced by the large body of evidence which cannot be reconciled with the applicant' s argument that there was "intense competition".

45 The Court holds that the question whether the Commission came to a premature judgment based on preconceived ideas is indissociable from the question whether the findings of fact made by the Commission in the Decision are supported by the evidence which it has produced. Since this is a question of substance related to proof of the infringement, it must be examined at a later stage together with the other questions relating to proof of the infringement.

Proof of the infringement

46 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.

47 It is therefore necessary to verify first of all whether the Commission has established to the requisite legal standard its findings of fact relating to (A) the floor-price agreement and the meeting of the European Association for Textile Polyolefins (EATP) on 22 November 1977, (B) the system of regular meetings, (C) the price initiatives, (D) the measures designed to facilitate the implementation of the price initiatives and (E) the fixing of target tonnages and quotas, taking into account (a) the contested decision and (b) the arguments of the parties, before going on to (c) an assessment of them; it will then be necessary to review the application of Article 85(1) of the EEC Treaty to those facts.

1. The findings of fact

A. The floor-price agreement and the EATP meeting of 22 November 1977

(a) The contested decision

48 The Decision (point 16, first, second and third paragraphs; see also point 67, first paragraph) states that during 1977, after seven new polypropylene producers came on stream in western Europe, the established producers initiated discussions with a view to avoiding a substantial drop in price levels and attendant losses. As part of those discussions the major producers, Monte, Hoechst, ICI and Shell, initiated a "floor-price agreement" which was to be in operation by 1 August 1977. The original arrangement did not involve volume control but if it proved successful tonnage restrictions were envisaged for 1978. That agreement was to run for an initial period of four months and details of it were communicated to other producers, including Hercules, whose marketing director noted as the basis for floor prices for the major grades for each Member State a raffia grade market price of DM 1.25/kg.

49 According to the Decision (point 16, fifth paragraph), ICI and Shell admit that there were contacts with other producers as to how the price slide could be checked. According to ICI, a price level may have been suggested below which prices should not be permitted to fall. It is confirmed by ICI and Shell that discussions were not limited to the "big four". Precise details of the operation of the floor-price agreement could not be ascertained. However, by November 1977, when the raffia price was reported as having fallen to around DM 1.00/kg, Monte announced an increase to DM 1.30/kg due to take effect on 1 December, and on 25 November the trade press quoted the other three majors as expressing their support for the move, with similar increases planned from the same date or later in December.

50 According to the Decision (point 17, first and second paragraphs), it was at about this time that the system of regular meetings of the polypropylene producers began, and ICI claims that meetings were not held until December 1977 but has admitted that contact was occurring between producers before that date, probably by telephone and on an ad hoc basis. Shell says that its executives "may have had discussions concerning price with Monte in or about November 1977 and Monte may have suggested the possibility of increasing prices and may have sought (Shell' s) views on its reactions to any increase". In the third paragraph of point 17 of the Decision it is stated that while there is no direct evidence of any group meetings being held to fix prices before December 1977, the producers were already informing meetings of a trade association of customers, the EATP, held in May and November of 1977, of the perceived need for common action to be taken to improve price levels. In May 1977 Hercules had stressed that the "traditional industry leaders" should take the initiative, while Hoechst had indicated its belief that prices needed to rise by 30 to 40%.

51 It is in that context that the complaint is made against the applicant (Decision, point 17, fourth paragraph; point 78, third paragraph; and point 104, second paragraph) that, like Hercules, Hoechst, Linz, Rhône-Poulenc, Saga and Solvay, it stated that it would be supporting the announcement made by Monte in an article appearing in the trade press (European Chemical News, hereinafter referred to as "ECN") on 18 November 1977 of its intention to raise the price of raffia to Dm 1.30/kg as from 1 December. The various statements made in this regard at the EATP meeting held on 22 November 1977, as recorded in the minutes, show that the DM 1.30/kg level set by Monte had been accepted by the other producers as a general industry "target".

(b) Arguments of the parties

52 The applicant maintains that although producers did have contacts by telephone during 1977, they did not result in a real agreement since if that had been the case the parties would have attempted to implement it. In this case, however, those contacts had no effect on the market since the floor price was not reached. The document on which the Commission relies in this regard, namely a handwritten note made by Hercules' s marketing director (main statement of objections, Appendix 2) is ambiguous.

53 It also points out that the EATP meetings could not in any way have formed the framework for the implementation of that agreement, since those meetings took place at the request of industrial customers who wished to be informed in particular about foreseeable price moves, and it is therefore absurd to regard them as a forum for enabling the producers to present a united front to their customers.

54 The Commission states that its finding that a floor-price agreement had been made among the "big four" as early as 1977 is based on a handwritten note of Hercules' s marketing director. The existence of that agreement is borne out by several documents and items of evidence: first, by Shell' s and ICI' s replies to the statement of objections, in which they admitted that the producers were in contact with another in order to decide how to stop the price slide and, in ICI' s case, that minimum price levels "may have been suggested"; secondly, by Monte' s announcement in ECN of an increase in prices bringing them to a level close to the floor price (main statement of objections, Appendix 3); and, thirdly, by the support simultaneously given to that price increase by the three other "majors" and six other producers at the EATP meeting on 22 November 1977 (main statement of objections, Appendix 6).

(c) Assessment by the Court

55 The question is, first, whether the applicant supported the floor-price agreement which the Commission alleges was made in mid-1977 and, secondly, whether the applicant participated in the fixing of a target price of DM 1.30/kg for 1 December 1977.

56 As regards the first question, the Court notes that in its reply to the statement of objections the applicant admitted that in mid-1977

"the producers were faced with the inevitable prospect of heavy losses. In the light of this, producers may well have made contact with each other to see what could be done to halt the slide in prices and suggested a price level below which prices should not be allowed to fall if the burden of losses was to be stemmed. This would almost certainly have been done by telephone discussions between producers since there were not then in existence the various meetings of producers of the kind that started at the end of 1977 ...".

The Court also notes that the applicant denies that those discussions resulted in an agreement confined to the "big four":

"the ICI employees are certain that there was no agreement or arrangement between the four named producers in mid-1977 to the exclusion of the other producers. If there had been discussions on 'floor prices' at that time as the note [of Hercules] appears to suggest then it is most unlikely that any such discussions would have been confined only to the four main producers but would have also included most of the polypropylene producers".

57 It is in the light of those circumstances that the note written by Hercules' marketing director (main statement of objections, Appendix 2), in which the Commission sees the expression of a common purpose between the "big four", must be examined. That note reads as follows:

"Major producers have made agreement (Mont., Hoechst, Shell, ICI) 1. No tonnage control; 2. System floor prices - DOM less for importers; 3. Floor prices from July 1. definitely Aug. 1st when present contracts expire; 4. Importers restrict to 20% for 1000 tonnes; 5. Floor prices for 4 month period only - alternative is for existing; 6. Com.[panies] to meet Oct. to review progress; 7. Subject [of the] scheme working - Tonnage restrictions would operate next year." [There then follows a list of prices for three grades of polypropylene in four national currencies, including DM 1.25/kg for raffia.]

58 Given that the applicant does not specifically deny that an agreement on floor prices was made but only that the agreement was confined to the "big four", that it adduces no evidence to shake the conclusions which the Commission draws from the note of Hercules' s marketing director and that it admits that at that time the producers were discussing price levels below which prices should not fall, the Court finds that a common purpose emerged between a number of producers, including the applicant, concerning the fixing of floor prices, without there being any need to establish whether producers other than the "big four" agreed to those prices.

59 The fact that the agreed floor prices could not be achieved does not tell against the applicant' s agreement to those prices since the Court considers that, even if that fact is assumed to be established, it would at the most tend to show that the floor prices were not implemented. However, far from asserting that the floor prices were achieved, the Decision (point 16, last paragraph) states that the price of raffia had fallen to around DM 1.00/kg in November 1977.

60 The second question to be considered is whether, in the light of the contacts between certain producers during 1977 and the fixing of floor prices by some of them, the statements made by the applicant and other producers at the EATP meeting on 22 November 1977 constitute the expression of a common purpose between them concerning a target price of DM 1.30/kg for 1 December 1977.

61 The Court considers that this is indeed so. At the EATP meeting on 27 May 1977, the applicant stated, after Hercules had suggested that the traditional industry "leaders" should bring some order out of the chaos on the market, that ICI "would give every support to such a move providing through all this that they could see a reasonable return for themselves in the future" (main statement of objections, Appendix 5); in mid-1977, a floor price of DM 1.25/kg was fixed by at least the "big four" and Hercules was informed about it; at the EATP meeting on 22 November 1977, the applicant stated that:

"We will seek every opportunity to increase our polymer prices and do earnestly request your support in this. The announcement by MONTEDISON last Friday in European Chemical News shows that there is an upward movement in prices already and we support MONTEDISON in this. I do not have specific details of what we propose but we will be informing our customers very shortly. Our aim longer term is for DM 1,60 per kilo" (main statement of objections, Appendix 6).

At the meeting on 26 May 1978, the producers reviewed the results of the preceding meeting and the applicant stated:

"ICI is very disappointed that the price levels and stability discussed in Paris [on 22 November 1977] have not been achieved, because I think they would have been beneficial to the industry as a whole" (main statement of objections, Appendix 7).

62 The organized attendance of customers at the various EATP meetings does not weaken the foregoing findings, since the purpose of the statements made at them was to convince customers of the need to see prices rising and of the inevitability of the increases announced.

63 It follows that the Commission has established to the requisite legal standard, first, that the applicant was one of the producers which arrived at a common purpose concerning floor prices in mid-1977 and, secondly, that in furtherance of that purpose it made statements at the EATP meeting on 22 November 1977 which also constituted the expression of a common purpose between the applicant and other producers regarding the fixing of a target price of DM 1.30/kg for 1 December 1977.

B. The system of regular meetings

(a) The contested decision

64 The Decision (point 17) states that the system of regular meetings of polypropylene producers began at about the end of November 1977. It goes on to state that ICI claims that meetings were not held until December 1977 (that is to say, after Monte' s announcement) but admitted that contact was occurring between producers before that date.

65 According to the Decision (point 18, first paragraph), at least six meetings were held during 1978 between senior managers responsible for the overall direction of the polypropylene business of some of the producers ("bosses"). This system soon evolved to include a lower tier of meetings attended by managers possessing more detailed marketing knowledge ("experts") (ICI' s reply to the request for information under Article 11 of Regulation No 17, main statement of objections, Appendix 8). The Decision asserts that the applicant was a regular participant at those meetings until September 1983 and that it took over the chairmanship of them from the middle of 1982, a responsibility which it accepted on condition that more determined efforts were made by the producers to increase prices before the end of the year (point 18, third paragraph, and point 19, second paragraph).

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

67 According to the Decision (point 68, second and third paragraphs), at the end of 1982 the "big four" began to meet in restricted session the day before each bosses' meeting. These so-called "pre-meetings" provided a forum in which the four major producers could agree a position between themselves prior to the full meeting in order to encourage moves towards price stability by adopting a united approach. ICI admitted that the topics discussed in pre-meetings were the same as those dealt with by the bosses' meetings which followed, but Shell denied that the "big four" meetings were in any sense preparatory to a plenary meeting or involved coordination on a common stance before the next meeting. The Decision states, however, that the records of some of those meetings (in October 1982 and May 1983) disprove this claim of Shell.

(b) Arguments of the parties

68 The applicant does not deny having participated in the meetings which the Commission alleges took place but considers that the Commission exaggerates their importance. It states that the meetings were few in number and irregular and that the evidentiary value of the notes of the meetings is questionable because the notes were supplemented after the meetings by personal remarks and comparisons.

69 As regards the purpose of the meetings, it emphasizes that the meetings rarely ended in real agreement and that, in any event, the commitment necessary to implement such an agreement was lacking. Furthermore, the agreements were not systematic and the initiatives regarding prices and sales volumes were haphazard. Finally, the applicant points out that the discussions were also concerned with matters other than exchanges of views on prices and volumes, such as the analysis of the market through the Fides data exchange system, which the Commission does not mention.

70 The applicant maintains that the Commission overestimates the role which it played in assuming the chairmanship of those meetings after mid-1982 since its apparently active role was only a purely administrative function involving no particular responsibility. It further contends that the Commission likewise exaggerates the importance of some meetings between the "big four".

71 The Commission states that ICI' s participation in the meetings of the cartel is clear from its reply to the request for information (main statement of objections, Appendix 8), which sets out in Annex 1 all the "bosses' " and "experts' " meetings which ICI attended (in total 54 meetings were held between January 1980 and September 1983). To those meetings it adds the meeting of 26 and 27 September 1979 in which ICI admits, in the body of its reply, having participated and a meeting of 10 March 1982 for which the Commission has a note written by Hercules (main statement of objections, Appendix 23) and claims to have a note written by ICI.

72 It states that the notes of the meetings which were held from 13 May to 2 December 1982 (main statement of objections, Appendices 24 to 26 and 28 to 33) show that the meetings were a standing forum for communication and agreement among the producers, that they were organized well in advance, that the producers had to abide by the measures which had been agreed and that they were conducted as an ongoing system.

73 It asserts that the notes of the meetings of 20 August, 6 October, 2 November and 21 December 1982 and an internal ICI note (main statement of objections, Appendices 28, 31, 32, 34 and 35) prove the leading played by ICI during those meetings and in the cartel.

74 Referring to points 67 and 68 of the Decision, the Commission considers that, as a member of the "club" of the "big four", ICI bears particular responsibility in the infringements committed. Its role in that capacity is clear from numerous documents (main statement of objections, Appendices 8, 9, 19, 64, 87, 94 to 100) which mostly report the discussions between the "big four".

(c) Assessment by the Court

75 The Court notes that the applicant does not deny having participated in the meetings which the Commission, in the Decision, alleges were held. However, the applicant denies the significance and purpose of those meetings.

76 In this regard, the Court considers that the Commission was fully entitled to take the view, based on the information which was provided by the applicant in its reply to the request for information (main statement of objections, Appendix 8) and was borne out by numerous meeting notes (see the main statement of objections, Appendices 12, 17 and 23 to 34), that the purpose of the meetings was, in particular, to fix target prices and sales volumes. Indeed, that reply contains the following passages:

"Generally speaking however, the concept of recommending 'Target Prices' was developed during the early meetings which took place in 1978"; "' Target prices' for the basic grade of each principal category of polypropylene as proposed by producers from time to time since 1 January 1979 are set forth in Schedule ...";

and

"A number of proposals for the volume of individual producers were discussed at meetings."

77 As far as the evidentiary value of the meeting notes with regard to their purpose is concerned, it must be observed that the contents of those notes are confirmed by various documents, such as a number of tables relating to the sales volumes of the various producers - of which some were found on the applicant' s premises - and price instructions broadly corresponding in their amount and date of entry into force to the target prices mentioned in those meeting notes. Similarly, the replies of the various producers to the requests for information addressed to them by the Commission bear out in the aggregate the contents of those notes.

78 Consequently, the Commission was able to take the view that the meeting notes found at the premises of ICI reflected fairly objectively what went on at those meetings which were chaired by different members of ICI' s staff, which increased the need for them properly to inform those members of ICI staff who did not attend particular meetings about what had transpired at them by making notes of them. GROUNDS CONTINUED UNDER DOC.NUM : 689A0013.1

79 As regards the addition to the notes of remarks and comparisons for the author' s own use, it must be observed that those additions, if assumed to be proved, were necessarily made in continuation of the meetings and did not change the meaning of the notes. In particular, the comparisons made in some meeting notes, such as those reporting on meetings held from September to November 1982 (main statement of objections, Appendices 30 to 32), must, if they were added afterwards, have been based on figures provided by the other producers either during the meetings themselves or on the fringe of the meetings.

80 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.

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

82 The particular role played by the applicant in the meetings as from August 1982 is apparent first of all from the note of the first meeting held under its chairmanship (main statement of objections, Appendix 28), which reads as follows:

"This was the first bosses' meeting under the new arrangements. It was stressed that acceptance of responsibility for leading the group was conditional on seeing real progress on prices before the end of the year. The ground rules were:

(a) Apart from the well known exceptions all companies should participate.

(b) The level of participation had to be right i.e. individuals had to be capable of committing their companies.

(c) Companies had to give the highest priority to making progress by making available the right amount of effort/time.

(d) Accept + agree a control system on market shares to be ready for use by the beginning of 1983.

In order to overcome the current lack of trust and confidence it was stressed that companies should only commit themselves when they knew they could deliver. If after agreeing to a particular course of action a company found the consequences too onerous they should at least wait to the next meeting/call for an extraordinary meeting before abandoning the planned action."

83 As chairman of the meetings, the applicant took numerous initiatives, particularly concerning the fixing of sales volume targets. This was the case in particular in December 1982 when the applicant entered into bilateral discussions with various producers (main statement of objections, Appendices 74 to 84) with a view to fixing quotas for 1983 and on that basis produced a synthesis (main statement of objections, Appendices 85 to 87) and proposed quota schemes (main statement of objections, Appendices 70 and 84).

84 As regards the particular role played by the "big four" in the system of meetings, it must be noted that ICI does not deny that meetings between the "big four" took place on 15 June 1981 in the absence of Hoechst, on 13 October and 20 December 1982, and on 12 January, 15 February, 13 April, 19 May and 22 August 1983 (Decision, Table 5, and main statement of objections, Appendix 64).

85 After December 1982, those meetings of the "big four" took place the day before the "bosses' " meetings, and their purpose was to determine the steps which they could take together in order to bring about a rise in prices, as is shown by the summary note prepared by an ICI employee in order to inform one of his colleagues about what had transpired at a pre-meeting on 19 May 1983 which the "big four" had attended (main statement of objections, Appendix 101). That note mentions a proposal to be submitted to the "bosses' " meeting on 20 May. With regard to that note, ICI states in its reply to the request for information:

"A meeting of the 'Big Four' which had taken place on 19 May 1983 immediately prior to a 'Bosses' meeting held on 20 May. The 'Big Four Pre-meeting' took place in Barcelona. [...] the outcome of the meeting was a proposal for a 'Target Price' for raffia of DM 1.85/kg with effect from 1 July 1983."

It is also to be observed that the note of the "experts' " meeting on 1 June 1983 (main statement of objections, Appendix 40) states:

"those present reaffirmed complete commitment to the 1.85 move to be achieved by 1 July. Shell was reported to have committed themselves to the move and would lead publicly in ECN".

In the aforementioned summary note it is stated: "Shell to lead - ECN article 2 weeks. ICI informed".

86 It follows that the Commission has established to the requisite legal standard that the applicant participated in all the regular meetings of polypropylene producers which the Commission alleges were held between December 1977 and September 1983, that the purpose of those meetings was, in particular, to set price and sales volume targets, that the applicant chaired those meetings from August 1982 and that those meetings were part of a system.

C. The price initiatives

(a) The contested decision

87 According to the Decision (points 28 to 51), a system for fixing price targets was implemented through price initiatives of which six could be identified, the first lasting from July to December 1979, the second from January to May 1981, the third from August to December 1981, the fourth from June to July 1982, the fifth from September to November 1982 and the sixth from July to November 1983.

88 With regard to the first of those price initiatives, the Commission (Decision, point 29) states that it has no detailed evidence of any meetings held or price initiatives undertaken in the first part of 1979. However, a note of a meeting held on 26 and 27 September 1979 shows that a price initiative had been planned based on a raffia grade price of DM 1.90/kg applicable from 1 July and DM 2.05/kg from 1 September. The Commission has price instructions from certain producers, including ICI, showing that those producers had given orders to their sales offices to apply this price level or its equivalent in national currencies from 1 September, in most cases before the planned price increase was announced in the trade press (Decision, point 30).

89 However, since it was difficult to get further price increases, the producers decided at the meeting held on 26 and 27 September 1979 to postpone the date for implementing the target by several months until 1 December 1979, the new plan being to "hold" the existing levels over October with the possibility of an immediate step increase to 1.90 or DM 1.95/kg in November (Decision, point 31, first and second paragraphs).

90 As regards the second price initiative, the Commission, whilst admitting (in point 32 of the Decision) that no meeting notes were found for 1980, states that at least seven producers' meetings were held in that year (reference is made to Table 3 of the Decision). Although at the beginning of the year producers were reported in the trade press as favouring a strong price push during 1980, a substantial fall occurred in market prices to a level of DM 1.20/kg or less before they began to stabilize in about September of that year. Price instructions issued by a number of producers - DSM, Hoechst, Linz, Monte, Saga and ICI - indicated that in order to re-establish price levels targets were set for December 1980 - January 1981 based on raffia at DM 1.50/kg, homopolymer at DM 1.70/kg and copolymer DM 1.95 to 2.00/kg. A Solvay internal document includes a table comparing "achieved prices" for October and November 1980 with what are referred to as "list prices" for January 1981 of DM 1.50/1.70/2.00. The original plan was to apply these levels from 1 December 1980 (a meeting was held in Zurich on 13 to 15 October) but this initiative was postponed to 1 January 1981.

91 The Decision (point 33) then refers to ICI' s participation in two meetings in January 1981, at which it was decided that a price increase, fixed in December 1980 for 1 February 1981, was required in two stages on the basis of DM 1.75/kg for raffia: the 1 February target was to remain at DM 1.75/kg and a target of DM 2.00/kg was to be introduced "without exception" from 1 March. A table was drawn up in six national currencies of the target prices for six principal grades, to come into effect on 1 February and 1 March 1981.

92 According to the Decision (point 34), the plan to move to DM 2.00/kg on 1 March not, however, appear to have succeeded. The producers modified their expectations and now hoped to reach the DM 1.75/kg level by March. An experts' meeting, of which no record survives, was held in Amsterdam on 25 March 1981 but immediately afterwards at least BASF, DSM, ICI, Monte and Shell gave instructions to raise target (or "list") prices to the equivalent of DM 2.15/kg for raffia, effective on 1 May. Hoechst gave identical instructions for 1 May but was some four weeks behind the others in doing so. Some of the producers allowed their sales offices flexibility to apply "minimum" or "rock bottom" prices somewhat below the agreed targets. During the first part of 1981 there was a strong upward movement in prices, but despite the fact that the 1 May increase was strongly promoted by the producers momentum was not maintained. By mid-year the producers anticipated either a stabilizing of price levels or even some downward movement as demand fell during the summer.

93 As regards the third price initiative, the Decision (point 35) states that Shell and ICI had already foreseen a further price initiative in September/October 1981 in June of that year when the slowing down of the first-quarter price rise had become apparent. Shell, ICI and Monte met on 15 June 1981 to discuss methods of implementing higher prices in the market. Within a few days of this meeting both ICI and Shell instructed their sales offices to prepare the market place for a major rise in September based on a plan to move the raffia price to DM 2.30/kg. Solvay also reminded its Benelux sales office on 17 July 1981 to warn customers of a substantial price increase due to take effect on 1 September, the exact amount of which was to be decided in the last week of July, when an experts' meeting was planned for 28 July 1981. The original plan to go for DM 2.30/kg in September 1981 was revised, probably at this meeting, with the planned level for August back to DM 2.00/kg for raffia. The September price was to be DM 2.20/kg. A handwritten note obtained at the premises of Hercules and dated 29 July 1981 (the day after the meeting, which Hercules probably did not attend) lists these prices as the "official" prices for August and September and refers in cryptic terms to the source of the information. More meetings were held in Geneva on 4 August and in Vienna on 21 August 1981. Following these sessions, new instructions were given by producers to go for a price of DM 2.30/kg on 1 October. BASF, DSM, Hoechst, ICI, Monte and Shell gave virtually identical price instructions to implement these prices in September and October.

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

95 The fourth price initiative of June to July 1982 took place as supply and demand returned into balance on the market. That initiative was decided upon at the producers' meeting of 13 May 1982 at which ICI participated and during which a detailed table of price targets for 1 June was drawn up for various grades of polypropylene in various national currencies (DM 2.00/kg for raffia) (Decision, points 37, 38 and 39, first paragraph).

96 The meeting of 13 May 1982 was followed by price instructions from ATO, BASF, Hoechst, Hercules, Huels, ICI, Linz, Monte and Shell, corresponding, with a few insignificant exceptions, to the target prices set at the meeting (Decision, point 39, second paragraph). At the meeting on 9 June 1982, the producers were able to announce only modest increases.

97 According to the Decision (paragraph 40), the applicant also participated in the fifth price initiative of September-November 1982 decided upon at the meeting on 20 and 21 July 1982, the aim of which was to achieve a price of DM 2.00/kg by 1 September and DM 2.10/kg by 1 October.

98 It was at the meeting of 20 August that ICI took over the chairmanship of the meetings from Monte and this was the occasion on which it was sought to obtain from producers further expressions of "commitment" to a significant increase of prices by the end of the year and agreement to a quota control system to be ready for use by the beginning of 1983. It was with this in view that a senior director from ICI' s Petrochemicals and Plastics Division met each of the other producers in a series of visits. Those visits were the subject of a briefing note headed "Object of visits" found at the premises of ICI, which sets out a number of questions to be put to the other producers as regards their commitment to the initiative to come into force on 1 September.

99 Following the meetings of 20 August and 2 September 1982, ATO, DSM, Hercules, Hoechst, Huels, ICI, Linz, Monte and Shell gave price instructions in accordance with the price target set at those meetings (Decision, point 43).

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

101 Following the meeting on 6 October 1982, BASF, DSM, Hercules, Hoechst, Huels, ICI, Linz, Monte, Shell and Saga gave price instructions applying the increase decided upon (Decision, point 44, second paragraph).

102 Like ATO, BASF, DSM, Hercules, Hoechst, Huels, Linz, Monte and Saga, the applicant supplied the Commission with price instructions issued to its local sales offices, which corresponded not only with each other in terms of amount and timing but also with the target-price table attached to ICI' s account of the "experts' " meeting held on 2 September 1982 (Decision, point 45, second paragraph).

103 According to the Decision (point 46, second paragraph), the December 1982 meeting resulted in an agreement that the level planned for November-December was to be established by the end of January 1983.

104 Finally, according to the Decision (point 47), the applicant participated in the sixth price initiative of July-November 1983. At the meeting on 3 May 1983, it was agreed that the producers would try to apply a price target of DM 2.00/kg in June 1983. However, at the meeting on 20 May 1983, the target previously set was postponed until September and an intermediate target was fixed for 1 July (DM 1.85/kg). Subsequently, at a meeting on 1 June 1983, the producers present, including ICI, reaffirmed complete commitment to the DM 1.85/kg increase. On that occasion, it was agreed that Shell would lead publicly in European Chemical News (ECN).

105 The Decision (point 49) states that after the meeting of 20 May 1983, ICI, DSM, BASF, Hoechst, Linz, Shell, Hercules, ATO, Petrofina and Solvay issued instructions to their sales offices to apply from 1 July a price table based on DM 1.85/kg for raffia. It goes on to state that only fragmented price instructions were obtained from ATO and Petrofina but these confirmed that these producers were implementing the new price levels, somewhat belatedly in the case of Petrofina and Solvay. The Decision concludes that, with the exception of Huels, for which the Commission found no price instructions for July 1983, all the producers which had attended the meetings or had promised support for the new price target of DM 1.85/kg are shown to have given instructions to implement the new price.

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

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

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

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

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

(b) Arguments of the parties

111 Whilst not disputing its participation in any particular price initiative, the applicant denies a number of contentions made by the Commission in the Decision concerning price instructions, the links between the price initiatives and the system of meetings and the movement in actual prices in relation to the target prices.

112 As regards the relationship between target prices and price instructions, the applicant considers that the Commission makes an artificial link between the "targets" communicated to sales branches and the target prices which were sometimes determined during producer meetings. The Commission' s contentions regarding the uniformity and simultaneity of the price instructions and the representative nature of the periods selected by the Commission to demonstrate that character were not supported by the facts and were disproved by a detailed analysis of the Commission' s own tables, which shows that the Commission made selective use of the price instructions and sometimes referred to instructions issued prior to meetings.

113 In this connection, the applicant complains first of all that the Commission arbitrarily selected four months in the period from January 1982 to September 1983 in order to prove that the price instructions given by ICI matched those given by the other producers. If the 16 months of that period for which price instructions are available are considered, they correspond for only four months if no account is taken of the discounts given and for only one month if discounts are taken into account.

114 It likewise denies that the price instructions of the various producers were given simultaneously. It points out that during 1982, for example, several weeks often separated the first price instruction given by a producer and the last instruction (between three and eight weeks). It points out that the same is true for the price instructions given for July and September 1983. Furthermore, in both 1982 and 1983 some price instructions were issued before the meetings at which the target prices which they were supposed to implement had been set according to the Commission. Thus, on 3 May 1982, two producers (BASF and DSM) gave instructions for the price of raffia to be increased to DM 2.00/kg on 1 June 1982, that is to say before the meeting held on 13 May 1982 at which that target price was allegedly set. Similarly, five producers gave instructions for the price to be increased to DM 1.85/kg on 1 July 1983, before the meeting of 1 June 1983 at which that target price was set.

115 The applicant also disputes that the price instructions given by the various producers were uniform. It points out, for example, that the Commission failed to take account, in its analysis of the price instructions given for June 1982, of differing price instructions given by DSM and Hercules and, for July 1983, of price instructions given by Hercules and Shell. Furthermore, the Commission also failed to take account of the fact that some price instructions corresponding to the price targets were altered at a later stage by fresh instructions which differed from both the price instructions issued by the other producers and the target prices.

116 The applicant also claims that the Commission arbitrarily selected, from amongst the price instructions used for the purposes of its comparison, sometimes the list price and at other times the minimum price and systematically chose the price which corresponded to the target price. This was the case, it claims, with the price instructions given by Monte and Hercules for July 1983 and with those given by BP for September 1983.

117 Finally, the applicant points out that the Commission has not taken account of the fact that some price instructions issued by DSM and Hercules left a wide margin of discretion to the sales offices and that ICI' s price-fixing system was such that its price instructions were simply indicative and subject to discussion depending on the state of the market.

118 It also states that, even if the Commission had established a high degree of uniformity between price instructions, it would still face the burden of proving, which it has not done, that this uniformity had its origins in a target-price consensus and not in conscious and normal price parallelism in an oligopolistic market. In any event, the existence of a link between the target prices and the price instructions of producers cannot constitute evidence of implementation and of an effect on the market unless, of course, the existence of a link between the price instructions and the prices obtained is simultaneously established by equally convincing evidence.

119 As regards the link between the price instructions and the prices obtained, the applicant points out that the price instructions had no effect on the prices obtained on the market, in particular on account of the applicant' s internal system of price formation and because they were communicated to customers only rarely. The differences between price instructions and the prices obtained were the result not of discounts but of an independent pricing policy. The Commission, which seems in fact to have admitted the lack of any relationship between the price instructions and the prices obtained (Decision, point 74), ought to have drawn the conclusion that the measures in question had no effect on prices or on competition.

120 As regards the relationship between target prices and prices achieved, the applicant contends that there was wide variance between the target prices and its own achieved prices, as is shown in particular by an audit carried out by an independent firm of auditors, Coopers & Lybrand (hereinafter referred to as "the Coopers & Lybrand audit") and an econometric study carried out by Professor Budd. In his study Professor Budd explains in particular that the causal link was the exact converse of the one alleged by the Commission: the "targets" merely confirmed changes in price already found, and had no effect on subsequent price changes. The Commission naturally contests those explanations, but it does so, in the applicant' s view, in a vague and shallow manner which reveals its lack of understanding of economics.

121 The applicant states that price levels are controlled by a large number of variables and, as regards the period in question, the price movements can be explained satisfactorily by, inter alia, the imbalance between supply and demand, changes in raw material prices and the general economic environment, as is shown by Professor Budd' s study and the evidence of Mr Freeman, ICI' s chief economist. This was accepted by the Commission (Decision, point 73) but is in contradiction with point 90 of its Decision where it states that the cartel had appreciable effects.

122 It also states that by selecting certain "initiatives" extending over a period of 26 months (compared with the period of 77 months of the alleged cartel) the Commission is able to ignore those periods in which the disparities between "target" prices and achieved prices are even more obvious.

123 Finally, the applicant objects to the taking into account of the period subsequent to the last meeting since it brought any infringements to an end as soon as the Commission' s investigation began.

124 The Commission states that the producers were trying to fix actual selling prices and that they did fix target selling prices, even if their efforts were not always fully successful.

125 The meeting notes (main statement of objections, Appendices 17, 24, 27 to 30, 33 and 38) show, in the Commission' s view, that the target prices reflected concrete agreements reached by the producers and that they were intended and generally expected to be applied, in particular by pressurizing uncooperative producers.

126 It considers that there was a link between the target prices applied in the form of instructions addressed to sales departments and the target prices discussed at the meetings. The argument that it was a mere coincidence (the price instructions being the result of separate decisions taken by each producer) is not credible and not borne out by the evidence.

127 In the Commission' s view, econometric studies are ineffective in the face of documentary evidence. They may only be used to establish that price parallelism is not attributable to collusion when there is no evidence of collusion, which is not the case here since a large number of notes of producers' meetings exists.

128 As regards the price initiative of January-May 1981, the Commission points out in particular that the note of the January 1981 meetings (main statement of objections, Appendix 17) proves that price agreements for February and March were made at those meetings since that note states in particular:

"It was generally agreed that a step change in prices was needed and that ... the industry should be aiming for a minimum of DM 2.00/kg".

That document, it adds, is indicative of the very specific character of the decisions taken during the meetings and the determination to apply them, which is itself confirmed by the matching price instructions issued by the various producers (particular objections, ICI, Appendix 9; main statement of objections, Appendix 19; letter of 29 March 1985, Appendix C).

129 Likewise, the Commission considers that ICI' s participation in the price initiative of June-July 1982 is proved by the notes of the meetings of 13 May 1982 (main statement of objections, Appendix 24) and 9 June 1982 (main statement of objections, Appendix 25). According to those documents, a target price of DM 2.00/kg for 1 June 1982 was set and implemented by price instructions issued by a number of producers (letter of 29 March 1985, Appendix F).

130 According to the Commission, the notes of meetings held between 21 July 1982 and 21 December 1982 (main statement of objections, Appendices 26 to 34) prove ICI' s participation in the price initiative of September-December 1982, which comprised the setting of a series of target prices and their implementation by matching price instructions from most of the producers (particular statement of objections, ICI, Appendix 12; letter of 29 March 1985, Appendix G).

131 It states that ICI' s participation in the price initiative of July-November 1983 is clear, first, from the notes of meetings held on 3 May 1983 and 1 June 1983 (main statement of objections, Appendices 38 and 40), which indicate that target prices were set for May, June and July 1983, and, secondly, from the price instructions which were issued pursuant to the meetings by most of the producers and related to a period from July to November 1983 (letter of 29 March 1985, Appendices H and I; main statement of objections, Appendices 42 to 51).

132 The Commission states that even if it were proved that there was no connection between the price instructions and the prices obtained on the market, that would not alter the infringement, since Article 85 prohibits agreements which have the object of distorting competition, whatever their effect. However, the Commission asserts that the target prices served as a basis for negotiations with customers and that the prices achieved followed a pattern of close parallel movement with target prices. It recognizes, as it did in the Decision (point 74), that the target prices were not always fully achieved, although the gap between the target prices and the actual prices is exaggerated by the applicant. It argues that proof of infringement of Article 85 by the producers does not depend upon proof that their unlawful behaviour achieved the anticipated result.

133 It contends that ICI' s argument that if there was a link between the target prices and the prices achieved, the link consisted only in the fact that achieved prices influenced target prices and not vice versa is artificial and contrary to common sense. On the contrary, clear contemporaneous evidence shows that the producers used their target prices to "push" market prices (main statement of objections, Appendices 22, 24, 31, 36 and 39, as well as Appendices 26, 28, 29 and 38). Such evidence cannot be disregarded on the basis of a post hoc econometric study.

134 In the Commission' s view, it is incorrect to say that all of the polypropylene price movements recorded during the period in question can be explained away on the basis of factors operating on a normal market. That assertion, based solely on theoretical economic analyses, is contradicted by the documents and the facts.

135 Finally, the Commission considers that it was entitled to take into account the period subsequent to the ending of the meetings since the effects of the infringement continued to last beyond the meetings, as is shown by the matching price instructions of the various producers which related to a period continuing until November 1983 (letter of 29 March 1985, Appendix I).

(c) Assessment by the Court

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

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

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

138 In this regard, it must be noted that the applicant does not specifically deny participating in any particular price initiative but contends that it never undertook to observe the target prices; that, it claims, is borne out, first, by its internal pricing policy in so far as its price instructions did not correspond to the target prices set at the meetings and, secondly, by its external pricing policy in so far as the prices which it charged on the market were independent of both the target prices and its internal pricing instructions.

139 None of those arguments can be accepted as evidence capable of corroborating the applicant' s assertion that it did not subscribe to the agreed price initiatives.

140 As far as the first argument is concerned, the applicant' s criticisms made during the administrative procedure, to which it refers in its application, as regards the similarity and simultaneity of its price instructions in relation to those of other producers and to the target prices set at meetings in 1982 and 1983, were partly taken into account in the Decision. In Tables 7A to 7N the Decision reproduces both the similarities and the differences between the applicant' s price instructions and those of other producers or the target prices set at the meetings. Consequently, the Commission correctly described the applicant' s situation. In this regard, it must be added that the selection made by the Commission between the various price instructions of the applicant did not falsely portray the applicant' s situation but is inherent in the synthesis undertaken in the Decision' s tables.

141 As regards the choice of the periods to which the analysis of the price instructions of the various producers relates, that choice was dictated not by premature judgments but by the evidence possessed by the Commission, such as the co-existence of notes of meetings referring to target prices and price instructions issued by the various producers.

142 As regards the consequences which the applicant seeks to draw from the partial lack of simultaneity of its price instructions for 1982 and 1983, the Court considers that, in the present case, the length of time separating the price instructions of the various producers as between themselves and in relation to the meetings at which the target prices were set is likewise not apt to weaken the evidence advanced by the Commission. The length of that delay does not lead to the conclusion that the applicant issued its instructions on the basis of an independent assessment of the market, since it had learned at the meetings the prices which its competitors had in view. Moreover, almost all of the applicant' s price instructions were issued within the five days which followed the meeting at which the Commission contends a target price was set (even though this is not the case with the price instruction issued for November 1983 on 27 September of that year (see the Decision, Table 7N) ).

143 Furthermore, as regards the price initiative of June-July 1982, the Court finds that, contrary to the applicant' s contentions, it is not true that two producers (BASF and DSM) issued instructions to their sales offices on 3 May 1982 to raise the price of raffia to DM 2.00/kg the following 1st of June, that is to say before the meeting on 13 May 1982 at which that target price was set. Although BASF did instruct its sales office in the United Kingdom, on 3 May 1982, to apply prices expressed in pounds sterling for raffia, homopolymer and copolymer as from mid-June 1982 (letter of 29 March 1985, Appendix BASF F1), prices which proved to have been adopted at the meeting of 13 May 1982 for implementation from mid-June 1982 (main statement of objections, Appendix 24), it was not until 19 May 1982 that it issued its price instructions, expressed in German marks, French francs and Italian lira, to its sales offices in Germany, France and Italy (letter of 29 March 1985, Appendix BASF F2). Those instructions are DM 2.00/kg for raffia and correspond in the main to the target prices set at the meeting on 13 May 1982, as is apparent from Table 7H of the Decision. As far as DSM is concerned, it is sufficient to point out that this producer stated in reply to a question from the Court that there were no price instructions issued by it on 3 May 1982, despite the assertion to that effect contained in the Commission' s letter of 29 March 1985 but not repeated in the Decision and that neither the applicant nor the Commission has contradicted that reply of DSM. Thus, the Decision merely states that price instructions for June 1982 were not available for DSM (point 39, third paragraph, and Table 7H). Consequently, the applicant' s argument does not in any way weaken the Commission' s finding that the target prices set at the meeting on 13 May 1982 were implemented by the producers by means of the price instructions mentioned in the second paragraph of point 39 and in Table 7H of the Decision.

144 It must also be observed that, as the applicant had to admit at the hearing, it is not true that in May 1983 five producers issued price instructions prior to the meeting at which, according to the Commission, the target price which they were prepared to implement had been set. It is clear from points 47 and 49 of the Decision that the process of setting a target price for July 1983 went on during the meetings of 3 May, 20 May and 1 June 1983, which is borne out by the notes of the first and third of those meetings (main statement of o