Judgment of the Court of First Instance (First Chamber) of 10 March 1992. - Shell International Chemical Company Ltd v Commission of the European Communities. - Competition - Concepts of agreement and concerted practice - Collective responsibility. - Case T-11/89.



European Court reports 1992 Page II-00757

Swedish special edition Page II-00047

Finnish special edition Page II-00049



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1. Competition - Administrative procedure - Inapplicability of Article 6 of the European Convention for the Protection of Human Rights

2. Community law - Principles - Rights of the defence - Observance in administrative proceedings - Competition - Extent

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

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

(EEC Treaty, Art. 85(1))

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

(EEC Treaty, Art. 85(1))

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

(EEC Treaty, Art. 85(1))

6. Competition - Cartels - Undertaking - Meaning - Single economic unit - Attaching liability for infringements

(EEC Treaty, Art. 85(1))

7. Acts of the institutions - Reasons - Obligation to state them - Scope - Decision applying the competition rules

(EEC Treaty, Art. 190)

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

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

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

Summary

1. Although the Commission is bound to respect the procedural guarantees provided for by Community competition law, the Commission cannot be described as a "tribunal" within the meaning of Article 6 of the European Convention for the Protection of Human Rights which provides that everyone is entitled to a fair hearing by an independent and impartial tribunal.

2. The provisions relating to the procedural guarantees provided for by Article 19(1) of Regulation No 17 and by Regulation No 99/63 are an application of a fundamental principle of Community law which requires the right to a fair hearing to be observed in all proceedings, even those of an administrative nature, and which means in particular that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the EEC Treaty.

The procedural guarantees provided for by Community law do not, however, require the Commission to adopt an internal organization precluding the same official from acting as investigator and rapporteur in the same case.

3. 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.

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

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

Participation in meetings concerning the fixing of price and sales volume targets during which information is exchanged between competitors about the prices 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. The concept of undertaking, within the meaning of Article 85(1) of the Treaty, must be understood as referring to an economic unit which consists of a unitary organization of personnel, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision.

For that reason, where a group of companies constitutes a single undertaking, the Commission is right to attach liability for an infringement committed by that undertaking and to impose a fine on the company responsible for the coordination of the group' s action in the context of the infringement.

7. 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.

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

9. 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.

Parties

In Case T-11/89,

Shell International Chemical Company Limited, a company incorporated under English law, having its registered office in London, represented by Jeremy F. Lever QC, Kenneth B. Parker, Barrister, and John W. Osborne, Solicitor, with an address for service in Luxembourg at the Chambers of Jean Hoss, 15 Côte d' Eich,

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 the Shell group (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 N.V. in Belgium, ATO Chimie SA and Solvay et Cie SA in France, SIR in Italy, DSM N.V. in the Netherlands and Taqsa in Spain. Saga Petrokjemi AS & Co, a Norwegian producer, came on stream in the middle of 1978, and Petrofina 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, the Shell group and Hoechst AG each held 11%, Hercules Chemicals N.V. slightly below 6%, ATO Chimie SA, BASF AG, DSM N.V., 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 The Shell group was one of the producers supplying the market before 1977 and is one of the "big four". Its position on the market was that of a large producer whose market share was between about 10.7 and 11.7%.

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

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

BASF AG ("BASF"),

DSM N.V. ("DSM"),

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

Hoechst AG ("Hoechst"),

Chemische Werke Huels ("Huels"),

Imperial Chemical Industries PLC ("ICI"),

Montepolimeri SpA, now Montedipe ("Monte"),

Shell International Chemical Company Limited ("Shell"),

Solvay et Cie 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 N.V., Hercules Chemicals N.V., 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 N.V., a fine of 2 750 000 ECU, or Fl 6 657 640;

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

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

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

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

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

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

(xi) Petrofina 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 5 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-10/89 and T-12/89 to T-15/89).

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

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

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

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

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

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

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

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

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

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

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

Forms of order sought by the parties

29 Shell International Chemical Company Limited claims that the Court should:

(i) annul the Commission' s decision of 23 April 1986 (IV/31.149 - Polypropylene), in so far as it relates to the applicant; or

(ii) cancel or substantially reduce the fine; and

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

The Commission claims that the Court should:

(i) dismiss the application;

(ii) order the applicant to pay the costs.

Substance

30 The Court 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 (1) it failed to fulfil its duty of impartiality in drawing up the Decision, (2) it failed to disclose to the applicant documents on which it based the Decision, and (3) not all the matters found against the applicant in the Decision were set out in the statement of objections; secondly, the grounds of challenge relating to proof of the infringement, which concern (1) the findings of fact made by the Commission and (2) the application to those facts of Article 85(1) of the EEC Treaty; thirdly, the grounds of challenge relating to the question whether or not the applicant is answerable for the infringement; fourthly, the grounds of challenge relating to the statement of reasons; and fifthly, the grounds of challenge relating to the determination of the fine, which is alleged to be (1) partially time-barred, (2) disproportionate to the duration of the alleged infringement and (3) disproportionate to the gravity of the alleged infringement.

The rights of the defence

1. Lack of impartiality in drawing up the Decision

31 The applicant states that until 1985 the Commission was internally organized in a manner which reduced the risk of bias and unfairness in its deliberations since from the preliminary stage of the proceedings the investigating function was separated from the prosecutorial function. During the administrative procedure conducted in the present case, the Directorate-General for Competition was reorganized so that the same official had to act as both investigator/inspector and examiner/rapporteur. The guarantees of impartiality and fairness thus disappeared.

32 In the reply, it further states that, contrary to the Commission' s contention, the new system does not necessarily offer all the desirable guarantees, that since it was established in 1985 it may not have been applied in the present case and that in any event it could not make good the lack of separation of functions from the preliminary stage. The applicant cites examples taken from the Decision from which, in its view, it is clear that the disadvantages of the reorganization are not simply theoretical since they show that the Commission in particular interpreted certain documents in a partial or biased manner. Finally, it states that the Commission does not claim that the new system was applied throughout the procedure in question.

33 The applicant states that, in view of the reorganization of the Directorate-General for Competition, it attached particular importance to its ability to obtain an effective oral hearing in the administrative proceedings. But the hearing officer responsible for ensuring the proper conduct of the hearings warned the undertakings that, according to the instructions which he had received, he could not effectively intervene after the oral hearing if he felt that the draft decision was mistaken or that it had gone too far and that he could intervene after the oral hearing only on procedural matters. He had sought clarification of his role but none had been forthcoming; he was, he said, in "a very poor position". From those statements Shell concluded that the hearing officer was not in a position effectively to protect the rights of the defence and to fulfil his role of impartial mediator, that is to say effectively to carry out his functions as laid down in his terms of reference which are set out in the Commission' s Thirteenth Report on Competition Policy (1983). Accordingly, the applicant, although it had made all the arrangements to participate in the hearings, had to decide against participating because it was afraid there was a serious risk that its statements might be badly interpreted or used against it by an administration whose objectivity had been compromised. Finally, it points out that the Commission does not contest the accuracy of its account of the statement made by the hearing officer.

34 The Commission explains that the reorganization of the Directorate-General for Competition carried out in 1985 was designed to produce an optimum combination of efficiency and fairness. Thus, the guarantees of objectivity, impartiality and coherence were increased by the creation of another new directorate responsible for coordinating decision-making and ensuring that decisions dealing with the same type of anti-competitive behaviour in the different sectors were dealt with in a consistent manner. This reorganization was described in the Fourteenth and Fifteenth Reports on Competition Policy.

35 The Commission states in the rejoinder that it is wrong to say that the present case was dealt with by the same officials from the beginning to the end of the administrative procedure since more than 20 persons were involved in the investigation of the case. Taking up the examples cited by the applicant to illustrate the Commission' s alleged lack of impartiality, the Commission points out that those examples refer to a stage of the procedure subsequent to the statement of objections and, consequently, cannot be used to support the argument that the lack of separation of the functions of investigator and rapporteur is harmful. It adds that from those examples it cannot be concluded that the Commission made a wrong analysis of the facts or of the documents nor that such an analysis was due to the organization of the Commission' s work.

36 The Commission recalls the purpose of the creation of the post of hearing officer and sets out in detail his terms of reference. In view of those considerations, it observes that the applicant adduces no evidence to show that the procedure followed in the present case was not correct. It points out that the applicant' s assertion that everything which it could have said at the hearing would have been "used against it" and the suggestion that the information it might have supplied verbally at the hearing would not have been used objectively are gratuitous and unfair assumptions. It adds that since the applicant chose not to take advantage of the opportunity of having a hearing, it ill behoves it to complain that there are errors in the Decision which could have been avoided by the intervention of the hearing officer.

37 The Court observes, as a preliminary point, that in its application the applicant contends that its rights of defence were adversely affected by the changes in the internal organization of the Commission' s departments and by the abandonment of the guarantees of impartiality afforded by the old procedure under that organization. In the reply, the applicant contends that it is uncertain whether the new organization and the new procedure offer all the guarantees of impartiality which the Commission attributed to them in the defence; it now asserts, however, that it was unable to benefit from the guarantees afforded by the new procedure since that procedure was not applied in the present case.

38 In order to overcome the apparent contradiction in the arguments of the applicant, which complains first of all that the old procedure was not applied in its case and that it did not benefit from the new procedure either, it must be borne in mind that the applicant considers that its rights of defence were infringed because, since the reorganization of the Commission' s departments occurred during the course of the administrative procedure which led to the adoption of the contested decision, the old and the new procedures were each in turn applied in its case, which, in its view, had the effect of depriving each of those procedures of guarantees which they afford separately when applied throughout a case.

39 The Court holds that the fact that certain Commission officials acted in the administrative procedure both as investigators and rapporteurs does not render the Decision unlawful. It is clear from the case-law of the Court of Justice that the Commission cannot be described as a "tribunal" within the meaning of Article 6 of the European Convention for the Protection of Human Rights. However, during the administrative proceedings before the Commission, the latter is obliged to observe the procedural guarantees laid down by Community law. It is for that reason that Article 19(1) of Council Regulation No 17 requires the Commission, before taking any decision, to give the parties concerned the opportunity of being heard on the matters to which the Commission has taken objection. It is also for that reason that, in Regulation No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19 of Regulation No 17 (Official Journal, English Special Edition 1963-1964, p. 47), the Commission instituted a procedure of an adversary nature. Under that procedure the Commission must notify its objections to the undertakings concerned, which may then reply in writing within a stated period. Where appropriate, and particularly in cases where the Commission proposes to impose fines, the undertakings may be afforded an oral hearing. Under the terms of Article 4 of Regulation No 91/63, the Commission may, in its decisions, deal only with those objections raised against undertakings in respect of which they have been afforded the opportunity of making known their views. The abovementioned provisions are an application of the fundamental principle of Community law which requires the right to a fair hearing to be observed in all proceedings, even those of an administrative nature, and which means in particular that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the EEC Treaty (judgment of the Court of Justice in Joined Cases 100 to 103/80 Musique Diffusion Française v Commission ("Pioneer") [1983] ECR 1825, paragraphs 7 to 10).

40 This Court holds that the procedural guarantees provided for by Community law do not, however, require the Commission to adopt an internal organization precluding the same official from acting as investigator and rapporteur in the same case.

41 It follows that, although the complaint relating to the Commission' s internal organization cannot be upheld as such, Community law provides all the criteria necessary for examining the complaints alleging breaches of the applicant' s rights of defence and upholding them if appropriate.

42 In any event, the applicant has not been able to explain how the alleged breaches of its rights of defence and the factual errors which it contends were committed should be attributed to the reorganization of the Directorate-General for Competition in question.

43 The Court further notes that the relevant terms of reference of the hearing officer, which were appended to the Thirteenth Report on Competition Policy, are as follows:

"Article 2

The Hearing Officer shall ensure that the hearing is properly conducted and thus contribute to the objectivity of the hearing itself and of any decision taken subsequently. He shall seek to ensure in particular that in the preparation of draft Commission decisions in competition cases due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned.

In performing his duties he shall see to it that the rights of the defence are respected, while taking account of the need for effective application of the competition rules in accordance with the regulations in force and the principles laid down by the Court of Justice.

Article 5

The Hearing Officer shall report to the Director-General for Competition on the hearing and the conclusions he draws from it. He may make observations on the further progress of the proceedings. Such observations may relate among other things to the need for further information, the withdrawal of certain objections, or the formulation of further objections.

Article 6

In performing the duties defined in Article 2 above, the Hearing Officer may, if he deems it appropriate, refer his observations direct to the Member of the Commission with special responsibility for competition, at the time when the preliminary draft decision is submitted to the latter for reference to the Advisory Committee on Restrictive Practices and Dominant Positions.

Article 7

Where appropriate, the Member of the Commission with special responsibility for competition may decide, at the Hearing Officer' s request, to attach the Hearing Officer' s final report to the draft decision submitted to the Commission, in order to ensure that when it reaches a decision on an individual case it is fully apprised of all relevant information."

44 The statements which the applicant attributes to the hearing officer simply impute intentions to the Commission and therefore exceeded his terms of reference. The applicant cannot justify its refusal to take part in the oral hearings by relying on those imputations and then claiming that its rights of defence have been infringed.

45 This objection must therefore be dismissed.

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

46 In its pleadings the applicant refers to a number of documents or series of documents to which the Commission allegedly failed to draw its attention at the time when the statement of objections was served and on which it allegedly based the Decision. The applicant considers that the Commission thus deprived it of the possibility of explaining the contents of those documents and thus infringed the rights of the defence.

47 Among those documents, the applicant points out that a document allegedly found at the premises of Solvay dated 6 September 1977 providing an account of a meeting between a Solvay employee and an employee of the applicant (Decision, point 16, penultimate paragraph) and a series of documents found at 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) ) are neither mentioned in the statements of objections addressed to it nor appended to them.

48 It further states that two other documents which Shell provided to the Commission as appendices to its reply to the statement of objections were used against it in the Decision without its being able to explain their contents since it did not know that they might be used against it. The documents concerned are two sets of minutes of Shell internal meetings held on 5 July and 12 September 1979 (Decision, points 29 and 31).

49 The applicant concludes that, since the Commission did not allow it to make observations on the evidentiary weight of those documents, it drew erroneous conclusions from them, in particular by failing to take into consideration evidence in its favour which those documents might contain. In this regard, it observes that the documents found at the premises of ATO do not mention Shell Chimie (France) and contends that this fact proves that the Shell companies did not participate in the quota arrangements. It then states that the document found at the premises of Solvay contains no reference to price agreements and that this proves that no such agreements were concluded in 1977.

50 It also contends that, in the Decision, the Commission uses two documents in support of objections different from those which they were supposed to support in the statement of objections. The two documents concerned are a Shell internal note dated 20 October 1982 containing an account of a Shell internal meeting of 7 September 1982, which was allegedly used in the specific statement of objections addressed to the applicant, of which they form Appendix 30, in order to prove the existence of a price agreement at the end of 1982, whereas the Decision refers to that document in the second paragraph of point 68 in asserting that the applicant was one of the "leaders" of the cartel and that it concluded a price and/or quota agreement with the three other so-called "leaders" at the end of 1982, and, secondly, a Shell internal document headed "PP W. Europe Pricing" (specific objections, Shell, Appendix 49), to which the Commission referred in the specific statement of objections addressed to the applicant in order to prove its participation in a quota agreement for 1983, whereas in point 49 of the Decision it used that document in order to prove Shell' s participation in a price agreement in July 1983. The applicant maintains that, since it is impossible for an undertaking accused by the Commission of having infringed Article 85(1) of the EEC Treaty to go through every document annexed to a statement of objections and set out every conclusion which, in its submission, could not be drawn from that document, the Commission cannot, in the Decision, use the documents mentioned in the statement of objections in support of objections different from those in support of which they were relied upon in that statement of objections.

51 The Commission contends that it allowed the applicant a satisfactory opportunity to state its position on all of the documents which concerned it and which could be used against it. Thus, the documents found at the premises of ATO either merely confirmed documents found at ICI and were disclosed to it or did not concern Shell and therefore did not have to be disclosed to it.

52 It states that the Solvay document mentioned in the fifth paragraph of point 16 of the Decision was made available to the applicant during the access-to-file procedure and that it took a copy of it on that occasion. It adds that this document is used in the Decision principally in order to prove the date on which Solvay began to participate in discussions on prices and that incidentally it confirms that discussions took place on this matter at that time.

53 As regards the two internal Shell documents of 5 July and 12 September 1979, the Commission observes that the first document only confirms a detail of the timetable of 1979 price initiatives and that, since it was produced by the applicant itself, it should have realized the importance of the document and therefore commented on it spontaneously; the same applies to the second of those documents.

54 Finally, with regard to the use of the document headed "PP W. Europe Pricing" in support of objections other than those in support of which it was mentioned in the statement of objections, the Commission states that it is true that this document was specifically referred to in the statements of objections addressed to the applicant only in relation to the fixing of quotas for 1983, whereas in the Decision it is used to prove the applicant' s participation in the price initiative of July 1983. It considers, however, that because these two matters are so closely linked, the applicant should have realized that the reference in that document to a "July target" could be used against it.

55 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 these documents cannot be regarded as admissible evidence as far as that undertaking is concerned (judgment 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, paragraph 21).

56 In this instance, only the documents mentioned in the main or particular 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.

57 Consequently, the Court considers that the document found at the premises of Solvay dated 6 September 1977, mentioned in the penultimate paragraph of point 16 of the Decision, and the documents obtained at ATO, mentioned in point 15(h) of the Decision, cannot be used in evidence against the applicant. However, this does not prevent the applicant from using them as evidence in its favour.

58 The question whether those last-mentioned documents provide the 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.

59 On the other hand, the minutes of two internal Shell meetings which Shell had appended to its reply to the statement of objections and which are mentioned in points 29 and 31 of the Decision must be regarded as evidence which may be relied upon as against the applicant in the present case. The applicant must have known that in producing those documents during the administrative proceedings it ran the risk that the Commission might use them as evidence against it. The Court of Justice has in fact held (judgment in Joined Cases 209 to 215 and 218/78 Heintz Van Landewyck SARL and Others v Commission [1980] ECR 3125, paragraph 68) that the decision is not necessarily required to be a replica of the notice of objections: the Commission must take into account the factors emerging from the administrative procedure in order either to abandon such objections as have been shown to be unfounded or to supplement and re-draft its arguments both in fact and in law in support of the objections which it maintains; this latter possibility does not conflict with the principle of the rights of the defence protected by Article 4 of Regulation No 99/63.

60 Consequently, the Commission was perfectly entitled to use, in support of objections of which the applicant had already been made aware, documents which the applicant had furnished in the course of the administrative procedure.

61 As regards the use made in the Decision of Appendix 30 to the specific statement of objections addressed to the applicant in support of objections different from those which they were supposed to support in that statement of objections, it is to be observed that the first of those documents forms Appendix 100 to the main statement of objections and that that appendix is used in the main statement of objections (point 124) to support objections relating to the special role played by the "big four", as is also the case in the second paragraph of point 68 of the Decision.

62 Appendix 49 to the specific statement of objections, which is mentioned in point 49 of the Decision in support of the objection relating to the conclusion of a price agreement in July 1983 whilst in the specific statement of objections it was used in order to prove Shell' s participation in a quota agreement, may be used in the Decision as against the applicant only if the applicant could reasonably deduce from the statements of objections and the contents of the documents the conclusions which the Commission intended to draw from them. In the present case, the specific statement of objections addressed to the applicant refers to Shell' s participation in the price initiative of June and July 1983 (p. 8, (h) ) and the main statement of objections refers to this in point 74. The first two sentences of the document enabled the applicant reasonably to deduce the conclusions which the Commission intended to draw from it in support of the objections which it had set out. In the document it was stated:

"Despite 100% loading of W. European PP effective industrial production capacity, prices have generally fallen from 1.85/1.95 DM/kg (' marker' grade - tape, raffia) in December 1982 to approx 1.70 DM (gross) in May, June 1983.

This paper provides data on PP supply, demand and pricing to show the cost to the Group of failing to use the present opportunity for a general increase of prices."

63 It follows that the Commission could use that document in support of the objection relating to the conclusion of a price agreement in July 1983.

3. New objections

64 In its argument concerning proof of the matters in question, the applicant contends that the Commission set out in the Decision a number of objections which had not been set forth in the statements of objections which had been addressed to it. This is said to be the case as regards Shell' s alleged participation in a price initiative in July 1979 (Decision, point 30) and its participation in meetings in 1981, to which the Commission refers in order to support its objection concerning the role played by the four major producers of which the applicant was one (Decision, points 19, 57, 67, 68, 78 and 109).

65 The Commission, on the other hand, maintains that all the objections relied upon in the Decision had been set forth either in the main statement of objections, in the specific statement of objections addressed to the applicant, or in the letter of 29 March 1985.

66 The Court finds that the objection expressed in point 30 of the Decision was mentioned in Appendix A to the letter of 29 March 1985 which the Commission addressed to the applicant in order to clarify and supplement the previous statements of objections.

67 As regards the reference in points 19, 57, 67, 68, 78 and 109 of the Decision to Shell' s participation in meetings with ICI and Monte in 1981, which the Commission makes in order to demonstrate the special role played by the applicant in the leadership of the cartel, this is not new at all since such participation is expressly mentioned, under the heading "Special Role of the Four Majors", in point 118 of the main statement of objections, which is applicable to the applicant individually, and in point 2(a) of the specific statement of objections which was addressed to it.

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

Proof of the infringement

69 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. The Decision further states that such conduct may fall under Article 85(1) as a "concerted practice" even where the parties have not reached agreement in advance on a common plan defining their action in the market but adopt or adhere to collusive devices which facilitate the coordination of their commercial behaviour. In certain respects, therefore, the continuing cooperation and collusion of the producers in the implementation of the overall agreement may display the characteristics of a concerted practice (point 87, third and fourth paragraphs).

70 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 1977 floor-price agreement, (B) the applicant' s contacts with the participants in the "bosses' " and "experts' " meetings, (C) the price initiatives, the measures designed to facilitate the implementation of the price initiatives and the fixing of target tonnages and quotas for (C1) the years 1979 and 1980, (C2) the year 1981, (C3) the year 1982, and (C4) the year 1984, taking into account (a) the contested decision, (b) the arguments of the parties, before going on to (c) an assessment of them; it will then be necessary (D) to assess whether the applicant' s general arguments regarding those findings of fact are well founded and, finally, it will 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

(a) The contested decision

71 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.

72 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". A document dated 6 September 1977, found at the premises of Solvay, indicates that a meeting was held on 30 August 1977 between Solvay and Shell. The Decision states that although Hercules was well informed of the outcome of the price discussions, the identity of other producers involved in those discussions could not be established. In the third paragraph of point 78 it adds, however, that the 1 December 1977 initiative taken by Monte, Hoechst, ICI and Shell had the express "support" of at least five other producers. 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.

73 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 Montedison in or about November 1977 and Montepolimeri may have suggested the possibility of increasing prices and may have sought (Shell' s) views on its reactions to any increase". From this the conclusion is drawn in the Decision that Shell was one of the producers which, in the wake of the floor-price agreement, took an initiative for 1 December 1977 (point 78, third paragraph). 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 European Association for Textile Polyolefins (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%. GROUNDS CONTINUED UNDER DOC.NUM : 689A0011.1

74 It is in that context that the complaint is made (Decision, point 17, fourth paragraph; point 78, third paragraph; and point 104, second paragraph) that a number of producers, which did not include the applicant, stated that they 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

75 The applicant points out that in order to prove the existence of the alleged floor-price agreement the Commission relies on a single handwritten note prepared by the marketing director of Hercules in the first half of 1977 (main statement of objections, Appendix 2). That note, which at the hearing the applicant described as a "scrappy handwritten note", cannot be used as evidence given the circumstances of its preparation, the ambiguity of its contents and the uncertainty of its interpretation. In its reply to the Commission' s request for information (specific objections, Hercules, Appendix 1), Hercules indicated that the author of the note no longer remembered the circumstances in which he prepared the document but believed that it reflected notes made during a telephone call from another producer, "possibly ICI". Furthermore, the allegations contained in that note are reported only second hand without any possibility of identifying the intermediaries, who might have been completely mistaken, repeating no more than wishful market gossip or inventing a tale in an effort to persuade Hercules, a volume-hungry new entrant, not to undercut prevailing market price levels.

76 The applicant claims that in any event the minutes of Shell internal meetings demonstrate that companies in the Shell group were pursuing at that time a marketing policy of "key accounts" that was wholly incompatible with the making or operation of any price agreement. Moreover, there is no evidence that the producers sought to implement the alleged "floor price".

77 The applicant points out that the document found at the premises of Solvay indicating that Solvay and Shell SA, its Belgian operating company, met on 30 August 1977 to discuss the price of polypropylene cannot be used against it in the present proceedings and that, furthermore, it does not demonstrate the existence of unlawful price agreements. Its contents even prove the contrary, since the document contains no reference to such agreements. It further contends that it is by selective and partial citation from Shell' s reply to the statement of objections that the Commission purports to deduce Shell' s participation in the alleged floor-price agreement.

78 It also points out that, unlike the statement of objections, the Decision no longer relies on the statements made by Shell at the meetings of the EATP but only on discussions concerning prices which may have taken place between Shell and Monte and on a statement of Shell in ECN (main statement of objections, Appendix 3) in which it expressed support for a price increase following a price increase announced in November 1977. Those two matters are manifestly insufficient, in the applicant' s view, to support a finding that the Shell companies infringed Article 85(1) in November 1977.

79 Finally, in the reply, the applicant contends that the Commission cannot argue before the Court that the November 1977 agreement represented only a belated implementation of the alleged floor-price agreement concluded in the middle of 1977. Such an allegation was never made, either in the administrative proceedings or in the Decision, and is in any event without foundation since the alleged mid-1977 agreement fixing prices at DM 1.25/kg was a "stop-loss" and was to be implemented on 1 August, whereas the alleged November agreement was aimed at increasing prices to DM 1.30/kg by 1 December. In this regard, the Commission has, according to Shell, failed to adduce evidence of a connection between those two alleged agreements.

80 The Commission explains that the note prepared by the marketing director of Hercules (main statement of objections, Appendix 2) is not the only document on which it relies in order to prove the existence of the floor-price agreement and that that note has to be read in the context of Shell' s contacts with other producers on the setting of prices, those contacts having been admitted by Shell in its reply to the statement of objections (points 3.10 to 3.15). Given that context, the Commission could take the view that the note provided reliable, accurate and detailed proof of the existence of a floor-price agreement, even if it was not ICI but another producer which had informed Hercules. As regards the document found at the premises of Solvay, the Commission points out that it is used in the Decision mainly to establish the date on which Solvay began to participate in the discussions on pricing and that it confirms that discussions did take place on that subject, as the applicant has indeed admitted.

81 The Commission maintains that the documents supposed to prove Shell' s competitive behaviour are not relevant since the Commission considers that it is entitled to use material tending to indicate a cartel agreement, even if this is accompanied by denials and material tending to show a state of considerable competition.

82 The Commission further contends that, as far as the November 1977 agreement is concerned, the Decision, after establishing that Shell had participated in the "floor-price" agreement, does not proceed to find that there was a separate price initiative in November 1977 but simply finds that the floor-price agreement was implemented in several stages. As proof, it points out that the Decision (points 16 and 17) deals with the original floor-price agreement and the November 1977 initiative under one heading, "The original 'Floor Price Agreement' " and that it did not therefore separate them.

83 Finally, the Commission explains the difference in target (DM 1.25/kg for the summer and DM 1.30/kg for November) by the fact that, having noted that prices had fallen to DM 1.00/kg, Monte realized in the meantime that considerable efforts would be needed to achieve the desired level. That is why it fixed a target somewhat higher than the price it actually hoped to achieve.

(c) Assessment by the Court

84 The Court notes that, in its reply to the statement of objections, the applicant stated that:

"SICC/SCITCO has made enquiry of executives concerned with polypropylene in 1977. There is no record or recollection of such agreement [the alleged 'floor price' agreement in June 1977]. On the basis of these enquiries, it appears likely that views were exchanged in 1977 with other producers, including Montepolimeri (then Montedison), Hoechst and ICI as to how the sharp fall in prices might be checked. SICC may have urged operating companies not to sell below a price level corresponding with variable cost. Shell operating companies however, were not prepared to lose market share to give effect to any such recommendation, for at that time they were following a policy of 'Key Accounts' ... SICC does not accept that any discussions between producers in mid-1977 were limited to the 'Big Four' ; ... [main statement of objections, Appendix 2] itself makes clear that other companies were involved. Any such discussions were not in any way connected with subsequent multilateral meetings in the period 1978-1982, which SICC/SCITCO did not attend. With the flood of new capacity in 1977, market conditions were chaotic and producers were incurring serious financial losses. SICC does not know what level of prices may have been considered in any discussions in mid-1977, but the price of 1.25 DM/kg referred to in the Hercules note cited ... would have barely covered variable production costs. In any event, as the Commission fairly acknowledges (paragraph 34 of the Statement of Objections), any attempt by producers to implement any such 'stop-loss' floor price agreement wholly failed in the face of the continuation of unbridled price competition ...

[Concerning] the alleged price initiative of November 1977, again, the same difficulties in reconstructing events many years ago arise as in the case of the alleged floor price agreement. However, SICC' s researches indicate that executives from the service company may have had discussions concerning price with Montepolimeri in or about November 1977 and Montepolimeri may have suggested the possibility of increasing prices and may have sought SICC' s views on its reactions to any increase. Shell companies continued to lose heavily on this polypropylene businesses; SICC' s policy was to recommend the operating companies to support any moves towards increasing prices that would enable losses to be reduced but it recognized that other producers, particularly new entrants, would be likely to hold prices at uneconomic levels to win market share. In that event, Shell operating companies were obliged to meet competitors' offers to retain their market share and to ensure a minimum acceptable loading of the Shell polypropylene plants in Western Europe. For that reason and because of the Shell Group structure SICC could not give Montepolimeri or any producer a commitment that operating companies would sell at increased prices."

85 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.]

86 The Court finds that the evidence which the applicant puts forward in order to diminish the evidentiary weight of that note made by Hercules' marketing director cannot contradict the conclusions which the Commission drew from the note. The note itself is free of ambiguity and the fact that it is badly written, unsigned and undated is quite normal since it is a note taken during a conversation, probably over the telephone, and the anti-competitive object of the note was a reason for its author to leave the least trace possible. The author' s imprecise recollection of the circumstances in which the note was drawn up does not impugn its evidentiary value since the contents of the note indicate that the information which it contains was provided by one of the "big four", and it is not necessary to identify which of the "big four". Furthermore, the fact that the information is reported second hand is immaterial since the Commission expressly uses the note as written, contemporaneous evidence of the facts, and as evidence that producers other than the author of the note had concluded an agreement. Finally, the precise, detailed nature of that information makes it wholly unlikely that it simply reflected market gossip, was completely wrong or invented.

87 Moreover, since the applicant has admitted that the producers were discussing prices at that time, the Court considers that the Commission was entitled to find that a common purpose concerning the fixing of floor prices emerged between a number of producers, including the applicant, without there being any need to establish whether producers other than the "big four" agreed to those prices.

88 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.

89 As regards the question whether the Decision alleges that there was a link between the floor-price agreement and the price initiative of December 1977, it is to be observed that it is clear from points 16 and 17 of the Decision, read together with point 78, that the floor-price agreement and the price initiative at the end of 1977 are considered in the Decision to form a whole. This view is based on the fact that Shell had admitted that its executives "may have had discussions concerning price with Montedison in or about November 1977 and Montepolimeri may have suggested the possibility of increasing prices and may have sought (Shell' s) views on its reactions to any increase", from which it is deduced (point 78, third paragraph) that Shell was one of the producers which, in the wake of the floor-price agreement, launched an initiative for 1 December 1977.

90 In this regard, the Court finds that the Commission rightly inferred from Shell' s reply to the statement of objections combined with its participation in the floor-price agreement that Shell had taken that initiative with Monte, ICI and Hoechst in continuation of that agreement. It is safe to conclude from Shell' s reply that between the time of the conclusion of the floor-price agreement and Monte' s announcement in ECN of its intention to increase prices from 1 December 1977 Shell had contacts with Monte on price increases, since it is stated in that reply:

"However, SICC' s researches indicate that executives from the service company may have had discussions concerning price with Montepolimeri in or about November 1977 and Montepolimeri may have suggested the possibility of increasing prices and may have sought SICC' s views on its reactions to any increase."

91 In view of that evidence, the applicant has not demonstrated that in the course of those contacts it indicated to its competitors that it refused to participate in any cooperation of that type.

92 It follows that the Commission has established to the requisite legal standard that the applicant was one of the polypropylene producers which arrived at a common purpose concerning floor prices in mid-1977 and, in furtherance of that purpose, a target price of DM 1.30/kg for 1 December 1977.

B. The applicant' s contacts with participants in the "bosses' " and "experts' " meetings

(a) The contested decision

93 In the Decision (points 18, 19, third paragraph, and 78, first three paragraphs) the Commission admits that Shell did not attend the plenary meetings of polypropylene producers attended by, on the one hand, senior managers responsible for the overall direction of the polypropylene business of some of the producers ("bosses") and, on the other hand, lower-ranking managers possessing more detailed marketing knowledge ("experts"), those meetings having as their object in particular the setting of target prices and sales volumes and the monitoring of their observance by the producers. The Decision states, however, that Shell was involved in both the original floor-price agrement and the discussions surrounding it and that it took part in ad hoc meetings with the other major producers. On Shell' s own admission, prior to bosses' and experts' meetings its views were sometimes sought on the feasibility of price increases, and after such meetings it was informed by Monte or ICI that particular "targets" had been proposed and passed on the information to its operating companies. Shell' s internal documents confirm that it knew of and was participating in price "initiatives", sometimes even as the acknowledged leader. Furthermore, from the end of 1982 onwards, Shell' s representative regularly attended "pre-meetings" of the four major producers which took place the day before each "bosses' " meeting.

94 According to the Decision (point 68, second and third paragraphs), 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.

95 Finally, the Decision (point 78, second paragraph) states that Shell operating companies took part in local meetings devoted to discussing implementation on a national level of arrangements agreed in the full sessions (Decision, point 20). Even before it began to attend "pre-meetings" of the "big four" in October 1982, it was meeting other major producers in detailed discussions on the matters covered by the regular bosses' and experts' sessions (Decision, point 109, fourth paragraph).

96 In points 16, 17, 19, 30, 31, 35, 45, 47, 48, 57, 62, 63, 67 and 109, the Decision makes further reference to various contacts between Shell and producers participating in the "bosses' " and "experts' " meetings.

(b) Arguments of the parties

97 The applicant points out that the Decision places decisive emphasis on the existence of meetings of producers at which various measures of collusion were agreed. However, it is not denied by the Commission that the Shell companies did not take part in any of those meetings. Therefore, those companies did not take part in the discussions which led in particular to the fixing of target prices or sales volumes or to the adoption of accompanying measures. Shell' s situation is thus identical to that of Amoco and BP, in respect of which the Commission found no infringement of Article 85(1) of the EEC Treaty (Decision, point 78, last paragraph).

98 The applicant explains that it was in fact in the following position: it knew that meetings were taking place; its views on general market conditions were sometimes sought prior to meetings; it was sometimes informed, not invariably, that particular "targets" had been proposed; it passed that information to the operating companies, occasionally giving them advice on the action to be taken, but those companies were free to make their own decision.

99 It admits that a Shell representative did participate in certain meetings which were held on the evenings before "bosses' " meetings and at which representatives of ICI, Monte and Hoechst were present. However, according to the applicant, those preliminary meetings were held only during the last 10 months of the period in question and Shell attended only about half of them. That circumstance cannot therefore be validly relied on as proof that Shell companies participated in unlawful arrangements.

100 It further points out that in 1981 there were only two isolated meetings at which only ICI, Shell and Monte, but not Hoechst - which was after all one of the "big four" - attended. At the end of those meetings, no agreement, arrangement or understanding was reached, as is attested by the note of the meeting of 15 June 1981 (main statement of objections, Appendix 64b). The Commission conveyed a misleading impression as to the regularity and nature of those meetings and, in the overall context of the alleged unlawful arrangements, attached an importance to them which they did not have. In so far as the Commission refers in its pleadings to regular contacts which the applicant allegedly had with the other "major" producers after 1977 and throughout the period, that is a new argument which in any event describes in excessive terms a few very sporadic contacts which could not alter Shell' s peripheral situation in relation to any alleged unlawful arrangement.

101 As regards its participation in a number of pre-meetings held between the end of 1982 and the middle of 1983, the applicant observes that those meetings began only some ten months before the end of the seven-year period of the alleged cartel, that it attended pre-meetings preceding only about half of the "bosses' " meetings during that period, that the exchange of views did not lead the applicant to participate in any unlawful arrangement and, finally, that those meetings were not intended to enable an alleged "directorate" to prepare for later "bosses' " meetings.

102 The Commission takes the view that the importance to the Decision of what are called the "institutionalized" meetings should not be exaggerated. Nor is it clear to the Commission why the applicant does not include in the "institutionalized" meetings those which took place between the "big four". However, the applicant, either itself or through SCITCO (a division of Shell), participated in those preliminary meetings, whose importance and object are proved by notes of telephone conversations between the applicant and ICI (main statement of objections, Appendices 95 and 96) or of one of those meetings (main statement of objections, Appendix 101).

103 The Commission states that even before pre-meetings began to be held regularly towards the end of 1982, the applicant had regular contacts with the other "majors", as Shell admitted in its reply to the statement of objections (point 3.19). It adds that those regular contacts were mentioned both in the statement of objections and in the Decision (point 109, fourth paragraph). More specifically, the Commission states that a note relating to a meeting of the "big four" of 15 June 1981 (main statement of objections, Appendix 64b) clearly shows that their shared responsibility on the market was recognized and that they considered that it was up to them to take the lead in adopting initiatives.

104 It further states that, on Shell' s own admission (main statement of objections, Appendix 9, Annex 2), Shell group operating companies in the Member States had attended the so-called "local" meetings which were devoted to detailed arrangements for applying the agreements reached at the "bosses' " and "experts' " meetings. For those various reasons, Shell' s situation is not comparable to that of Amoco or BP.

105 The Commission contends that the applicant participated in all the pre-meetings of which it is aware and that the common attitude adopted by the "big four" with a view to raising prices was linked to those meetings, in which the discussions were quite concrete. It maintains that the two documents on which the Decision relies in this regard, the "ICI document headed "Polypropylene Framework" (main statement of objections, Appendix 87) and the Shell note of 20 October 1982 (main statement of objections, Appendix 100, and specific objections, Shell, Appendix 30), are perfectly relevant, provided that they are interpreted in the context of the meetings and that they are not separated from one another. It notes in passing that the meeting of October 1982 was attended by the "big four" and constituted a pre-meeting and that the final note of 20 October 1982 (referred to in point 68 of the Decision) was relied on in the main statement of objections (point 124 of the main statement of objections).

106 The Commission therefore considers that the fact that the applicant did not attend the "bosses' " and "experts' " meetings is not relevant and that it is safe to conclude that the applicant contributed to the fixing of prices and applied them in concert with the Shell group companies and that it cooperated in the quota system.

(c) Assessment by the Court

107 The Court finds that the Commission was fully entitled to deduce from the various pieces of evidence mentioned in the Decision - in particular, ICI' s reply to the request for information (main statement of objections, Appendix 8), the various meeting notes and the tables setting out the previous sales figures and quotas for various producers - that a system of regular meetings of polypropylene producers was developed from December 1977, that "bosses' " and "experts' " meetings were held from the end of 1978 or the beginning of 1979, that the purpose of those meetings, initially chaired by Monte and then by ICI, was, in particular, to fix price and sales volume targets and to adopt various measures designed to facilitate the implementation of the target prices and that at those meetings there emerged common purposes concerning those targets and measures.

108 Moreover, it is to be noted that the allegation made against the applicant in the Decision is not that it participated in "bosses' " and "experts' " meetings but that it was in close contact with participants in those meetings, supplying information relating to its commercial policy, sending its national companies to local meetings devoted to implementing at the national level measures agreed at "bosses' " and "experts' " meetings, participating in meetings with certain participants in those meetings and having bilateral contacts with them.

109 The question is, therefore, whether the Commission has proved to the requisite legal standard that there were contacts between the applicant and the participants in the "bosses' " and "experts' " meetings between the end of 1977 and September 1983.

110 As regards more specifically the period between the end of 1977 and 1978, the applicant, in continuation of the common purpose which emerged in 1977, attended two EATP meetings, the minutes of the first of which, held on 22 November 1977 (main statement of objections, Appendix 6), show that various producers expressed their support for the announcement made publicly by Monte that it would be increasing its prices and that the applicant made this statement:

"any opportunity to achieve more realistic polypropylene prices will have the full support of Shell. We also noticed the moves in Italy and I feel certain that these are going to spread across Europe".

The minutes of the second of those meetings, held on 26 May 1978 (main statement of objections, Appendix 7), disclose the various producers' assessments of the results obtained on the market following the first meeting of 22 November 1977. At the meeting on 26 May 1978, the applicant stated:

"We have heard most people, both in the informal discussions and around the table this morning plead for stability and cooperation in the economic situation of slow growth in which we find ourselves and with the situation of low demand for our products and surplus capacity [...] Last November, I mentioned that the losses being incurred by the polymer producers, by the chemical producers of the world were reaching very large proportions. We have seen further company reports in the last 6 months which have confirmed this, and I put it to you that the magnitude of the sums of money being lost by the chemical industry and by the polymer producers over the coming years are going to lead to some fundamental thinking as [...]."

111 Furthermore, in its reply to the statement of objections the applicant stated that, as regards the period from 1978 to September 1983,

"SICC/SCITCO knew that multilateral meetings between producers were taking place from time to time and that the subject matter of the discussions at such meetings included 'target' prices. Prior to meetings SICC/SCITCO' s views were sometimes sought on general market conditions including as to the feasibility of price increases. After multilateral meetings had taken place, the service company was sometimes informed (by ICI or Montepolimeri) that particular price 'targets' had been proposed, and passed this market information to the operating companies. SICC/SCITCO' s support might be sought for the proposed move, and in response the service company would make it clear that it could not commit the Shell operating companies even to work towards the goal of attaining the 'target' prices. [...] SICC/SCITCO informed the operating companies of the 'target' price as part of a general market intelligence service that it provided to the operating companies. It did not ordinarily tender advice as to the appropriate action the operating companies should take. On occasions, however, it would commend to the operating companies moves towards higher prices as a means of reducing losses; but on other occasions SICC/SCITCO would agree with operating companies that they should hold current prices so as to retain volume and market share. The operating companies would make their own pricing decision on their evaluation of the local market, bearing in mind their volume objectives."

112 It is to be noted that the applicant has confirmed those facts in its pleadings to the Court and that ICI' s reply to the request for information (main statement of objections, Appendix 8) also confirms their truth since ICI there states:

"The relationship between these producers [Alcudia, Amoco, BP, Hercules and Shell] and producers which participated was simply one whereby these producers would usually be advised of the upshot (if any) of meetings."

113 Furthermore, that evidence is confirmed by contemporaneous documentary evidence of the matters alleged.

114 Thus, the Court finds that the existence of contacts between the applicant and the participants in the "bosses' " and "experts' " meetings is confirmed by the fact that the applicant' s sales figures for various months and years appear beside its name in various tables (main statement of objections, Appendix 55 et seq. and main statement of objections, Appendices 23, 25, 28 and 32). Most of the applicants have admitted in their replies to a written question from the Court that it would not have been possible to draw up the tables found at the premises of ICI, ATO and Hercules on the basis of the statistics available under the Fides data exchange system. In its reply to the request for information (main statement of objections, Appendix 8), ICI stated with reference to one of those tables that "the source of information for actual historic figures in this table would have been the producers themselves". The Commission was therefore entitled to take the view that the data relating to Shell contained in those tables had been provided by Shell itself.

115 That conclusion is confirmed by ICI' s reply to the request for information since that document does not contain with regard to Shell the same qualification expressed in regard to Amoco, Hercules and BP on the matter of the origin of the sales figures for it appearing in those tables, that qualification being, as far as those producers were concerned, that they

"did not report as a group, they did not report individually, and they were not represented at the meetings. In passing it should be stated that even when Hercules did attend meetings they would not report their figures.

By way of explanation, Amoco/Hercules/BP are 'grouped' together in the table because, in the absence of any specific data relating to their sales volume, their sales volume was calculated by deducting from known total sales for West Europe (derived from FIDES data) the total of sales made by other producers which had declared details of their sales volume."

116 Besides that evidence, it must be pointed out first of all that it is clear from the applicant' s reply to the statement of objections that the Shell group operating companies participated in local meetings for the United Kingdom (six a year), for Belgium (every four to six weeks), for Italy (regularly), for Denmark (occasionally) and for the Netherlands (in September 1983). Although the applicant claims that the purpose of participation in those meetings was to obtain general information about the market, the only two notes of those meetings which are available show that the purpose of the meetings was to discuss at the local level the measures decided on at "bosses' " and "experts' " meetings. The note of the local meeting for the United Kingdom of 18 October 1982 (main statement of objections, Appendix 10), in which Shell UK participated, shows that the producers which attended exchanged information on sales which they had made above and below the target price, examined certain anomalies of the market and analysed the situation in relation to their respective customers. The purpose of those meetings is borne out by the note of the "experts' " meeting of 9 June 1982 (main statement of objections, Appendix 25), in which it is stated that:

"From this it was felt that it was impossible to reach the target level of 36 Bfr/kg etc. in June, ICI & DSM pressed for a major push in Belgium as it would have beneficial effects on the surrounder countries + bring Shell back into the fold without any producers having to put too much at stake in terms of volume. After a lot of discussions DSM agreed to call a meeting on 16th June to be attended by some marketing managers as well as local representatives. The objectives would be to quote the target levels absolutely rigidly for July."

It is apparent from the applicant' s reply to the statement of objections that it participated in the meeting which was held on 16 June.

117 Secondly, it must be stated that in 1981 the applicant participated in two meetings, the first, held on 27 May 1981, being between Shell and ICI, and the second, held on 15 June 1981, between Shell, ICI and Monte (main statement of objections, Appendix 64), in 1982 in two meetings attended by representatives of the "big four" held on 13 October and 20 December 1982, and in 1983 in five such meetings. In this regard, it is to be noted that the applicant' s contention that those meetings formed only a part of the meetings of the "big four" lacks foundation since the applicant has stated in reply to a question from the Court that it has no knowledge of any other pre-meeting between ICI, Hoechst and Monte on any other occasion.

118 The applicant claims that the purpose of those meetings was independent of that of the "bosses' " and "experts' " meetings. However, on the basis of the notes relating to the contacts between the applicant and the other "majors", the Court considers that the purpose of those meetings was closely linked to that of the "bosses' " and "experts' " meetings. The notes of the two 1981 meetings show that their purpose was to discuss the level of prices and quota systems, since in the first note (main statement of objections, Appendix 64a) it is stated

"This meeting was arranged to review the polypropylene scene and to seek SICC' s views on the volume scheme put forward by Montepolimeri in Rome [...] Current price levels were compared and Shell seemed to have much the same view as ourselves"

(there then follows a price list) and in the second note (main statement of objections, Appendix 64b) it is stated:

"Possible solutions included (a) sanctions (not a great success so far on PVC), (b) control production which is within the power of the bosses (L. [the applicant' s representative] thought propylene availability might scupper this), (c) quotas which Z. favoured but L. discounted, (d) new initiative by the 4 majors whereby they accommodated the hooligans in Europe and made up the loss by sales in ROW markets. Given that W European sales would probably not exceed 105 kt/month for the next few months and then not over 125 kt for the remainder of the year say 115 kt average for July-Sept and exports continued at 30 kt/month there would still be a surplus of capacity of 10 kt/month. Shared by the Big Four each would have to drop 2.5 kt/m in Europe equivalent to 30 kt/yr of say 2.3% market share. I said that despite L.' s contention about ROW prices that such a proposal would be totally unacceptable to us, (e) a flat price increase of say 20 pf/kg wef 1st July - this avoids unrealistic requirements for the lowest priced business."

119 The Court considers that the purpose of the meetings of the "big four" which took place the day before the "bosses' " meetings was to determine the steps which they could take together in order to raise prices, as is shown by a 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 noted that the note of the "experts' " meeting on 1 June 1983 (main statement of objections, Appendix 40), which followed that of 20 May, 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".

120 This is also apparent from the note of telephone conversations which the applicant had with ICI on 9 and 10 September 1982, in which it is stated:

"I spoke to L. to get his reaction to the sugges[tion] that the 4 majors might operate a compensation scheme amongst themselves whilst the price initiative was being forced through" (main statement of objections, Appendix 95).

121 The Court therefore considers that the applicant' s absence from the "bosses' " and "experts' " meetings was not accidental. It was part of a deliberate strategy on the applicant' s part to benefit from the anticipated advantages of those meetings without taking the risks involved in participation in meetings attended by such a large number of producers, remaining in contact with them without actually participating. This is apparent from an internal note of the applicant of 15 February 1982 (main statement of objections, Appendix 94), in which, after remarking on the ineffectiveness of the price initiatives of the "big four", it states that:

"SCITCO will NOT participate in any poly-competitor meetings, but will try to keep informed of their activities & ambitions through CITP bilateral contacts."

In the context of the whole of the document in question the phrase "poly-competitor meetings" must be interpreted not as meaning "polypropylene competitor meetings" but as meaning "multi-competitor meetings", for two reasons. First, everywhere else in this and the other documents the word "polypropylene" is abbreviated as "PP", not "poly", and the phrase "poly-competitor meetings" must be understood as expressing a distinction in relation to the phrase "bilateral meetings" which appears four lines later in the document. Secondly, that reading of the document is corroborated by another document from ICI dated 18 October 1982 (main statement of objections, Appendix 96), in which it is stated:

"L. of SCITCO said that [...] he would be willing to attend meetings of the big four but not wider gatherings."

122 Furthermore, the presence of Shell operating companies at the local meetings and the applicant' s presence at the meetings of the "big four" assisted in the setting of target prices and sales volumes at the "bosses' " and "experts' " meetings.

123 The Court accordingly finds that the applicant maintained regular contacts with the participants in the "bosses' " and "experts' " meetings and that those contacts had the same purpose as those meetings.

124 The Court considers that those findings are not weakened by the fact that the Commission did not make the same findings against Amoco and BP, whose names also appear in the abovementioned tables. The cases of those undertakings differ from the applicant' s case in so far as Amoco and BP did not participate in any of the producers' meetings whose purpose was, in particular, to fix price and sales volume targets, whereas Shell group operating companies participated in the local meetings and the applicant participated in