Joined Cases T‑217/03 and T‑245/03

Fédération nationale de la coopération bétail and viande (FNCBV) and Others

v

Commission of the European Communities

(Competition – Article 81(1) EC – Beef – Suspension of imports – Fixing of a union price scale – Regulation No 26 – Associations of undertakings – Restriction of competition – Trade union action – Effect on trade between Member States – Obligation to state reasons – Guidelines on the method of setting fines – Principle of proportionality – Gravity and duration of the infringement – Aggravating and attenuating circumstances – Prohibition of multiple sanctions – Rights of the defence)

Judgment of the Court of First Instance (First Chamber), 13 December 2006

Summary of the Judgment

1. Competition – Community rules – Associations of undertakings – Definition

(Art. 81(1) EC)

2. Competition – Community rules – Associations of undertakings – Definition

(Art. 81(1), EC)

3. Competition – Agreements, decisions and concerted practices – Effect on trade between Member States

(Art. 81(1) EC)

4. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Price-fixing

(Art. 81(1) EC)

5. Competition – Agreements, decisions and concerted practices – Prohibition – National legal framework for concluding the agreement

(Art. 81 EC)

6. Competition – Community rules – Material scope of application

(Art. 81 EC)

7. Agriculture – Competition rules – Regulation No 26

(Arts 33 EC, 36 EC and 81(1) EC; Council Regulation No 26, Art. 2(1))

8. Competition – Administrative procedure – Statement of objections – Necessary content

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

9. Competition – Fines – Amount – Determination

(Art. 253 EC; Council Regulation No 17, Art. 15(2))

10. Objection of illegality – Scope – Measures the illegality of which may be pleaded

(Art. 241 EC; Commission Notice 98/C 9/03)

11. Competition – Fines – Amount – Determination

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

12. Competition – Fines – Amount – Determination – Maximum amount

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

13. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement

(Art. 81(1) EC; Commission Notice 98/C 9/03)

14. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances

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

15. Competition – Fines – Amount – Determination – Maximum amount

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

16. Competition – Fines – Commission decision finding an infringement adopted after a Commission decision not amenable to review penalising or exonerating the same undertaking

(Council Regulation No 17, Art. 15)

17. Competition – Fines – Amount – Discretion of the Commission – Judicial review – Unlimited jurisdiction

1. Article 81(1) EC applies to associations in so far as their own activities or those of the undertakings belonging to them are calculated to produce the results which it aims to suppress. Having regard to the purpose of that provision, the concept of an association of undertakings must be understood as capable of applying to associations which themselves consist of associations of undertakings.

For an agreement between undertakings to fall within the ambit of that provision, it is not necessary for the associations in question to be able to compel their members to fulfil the obligations imposed on them by the agreement.

(see paras 49, 89)

2. In the context of competition law, the concept of an undertaking encompasses every entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. Any activity consisting in offering goods and services on a given market is an economic activity.

The activity of farmers, whether arable or stock farmers, is certainly of an economic nature. Their activity is indeed the production of goods which they offer for sale in return for payment. Consequently, farmers constitute undertakings within the meaning of Article 81(1) EC.

Therefore the unions which bring them together and represent them, and the federations which bring the unions together, may be described as associations of undertakings for the purpose of applying that provision.

This conclusion cannot be undermined by the fact that local unions may also bring together farmers’ spouses. First, the spouses of arable or stock farmers who are themselves members of a local farmers’ union probably share in the tasks of the family farm. Second, in any case the mere fact that an association of undertakings may also bring together persons or entities that cannot be described as undertakings is not sufficient to affect its status as an association within the meaning of Article 81(1) EC. Likewise, the argument that, where a farm takes the form of a partnership, it is not the partnership that, through its representative, joins the union, but each of the partners, must be dismissed. What is important for the purpose of classifying an undertaking is not its legal status or the form of farm in question, but the activity of the farm and those who share in it.

(see paras 52-55)

3. Article 81(1) EC applies only to agreements which may affect trade between Member States. For an agreement between undertakings to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market between the Member States.

Where the infringement in which an undertaking or association of undertakings participated is apt to affect trade between Member States, the Commission is not required to demonstrate that the individual participation of that undertaking or association of undertakings has affected intra-Community trade.

Practices restricting competition which extend over the whole territory of a Member State have, by their very nature, the effect of reinforcing compartmentalisation of national markets, thereby holding up the economic interpenetration which the Treaty is intended to bring about. Lastly, where the market concerned is susceptible to imports, the members of a national price cartel can retain their market share only if they defend themselves against foreign competition.

(see paras 63, 66-67)

4. Article 81(1) EC expressly provides that measures which directly or indirectly fix purchase or selling prices constitute restrictions of competition. Price fixing is a patent restriction of competition.

An agreement concluded by federations representing farmers and federations representing slaughterers and fixing minimum prices for certain categories of cows, with the aim of making them binding on all traders in the markets in question, has the object of restricting competition in those markets, inter alia by limiting artificially the commercial negotiating margin of farmers and slaughterers and distorting the formation of prices in the markets in question.

This conclusion cannot be undermined by the argument that the agricultural markets are regulated markets where the competition rules do not automatically apply and where the formation of prices quite often does not answer to the free operation of supply and demand. No doubt the agricultural sector has certain specific features and is the object of very detailed regulation which is frequently rather interventionist. However, the Community competition rules apply to the markets for agricultural products, even if certain exceptions are provided for to take account of the particular situation of those markets.

Moreover, the agreement in question does not cease to be restrictive merely because the minimum prices are fixed by reference to the government intervention price. Reference to that price does not mean that the minimum price scale loses its anti-competitive object consisting in fixing directly and artificially a predetermined market price or that it can be treated in the same way as the various government support and intervention schemes in the common organisations of the agricultural markets which have the object of stabilising markets characterised by excess supply by means of withdrawing a part of production.

(see paras 83, 85-87)

5. The legal framework within which agreements between undertakings prohibited by Article 81 EC are made and the classification given to that framework by the various national legal systems are irrelevant as far as the applicability of the Community rules on competition are concerned. Moreover, the alleged inadequacy of government measures to deal with the problems of a particular sector cannot justify the private operators concerned in engaging in practices contrary to the competition rules or in claiming to arrogate to themselves rights which are those of public authorities, either national or Community, in order to substitute their own measures for those of the authorities.

Likewise, the fact that conduct on the part of undertakings was known, authorised or even encouraged by national authorities has no bearing, in any event, on the applicability of Article 81 EC. Furthermore, the crisis in a sector cannot, on its own, preclude Article 81(1) EC from applying.

(see paras 90-92)

6. Agreements concluded in the context of collective negotiations between management and labour in pursuit of measures to improve conditions of work and employment must, by virtue of their nature and purpose, be regarded as falling outside the scope of Article 81(1) EC. However, an agreement concluded by federations representing farmers and federations representing slaughterers aimed at fixing minimum prices for the purchase of cows by slaughterers and suspending beef imports must be held to come within the scope of the prohibitions laid down in Article 81 EC.

(see paras 98-100)

7. The maintenance of effective competition in the markets for agricultural products is one of the objectives of the common agricultural policy. Whilst Article 36 EC has conferred on the Council responsibility for determining the extent to which the Community competition rules are applicable to the production of and trade in agricultural products, in order to take account of the particular position of the markets for those products, that provision nevertheless established the principle that the Community competition rules are applicable in the agricultural sector.

Constituting as it does a derogation, Article 2(1) of Regulation No 26, which provides that Article 81(1) EC does not apply to agreements, decisions and practices which are necessary for the attainment of the objectives of the common agricultural policy, must be interpreted strictly. Furthermore, that provision applies only if the agreement in question is conducive to attainment of all the objectives of Article 33 EC, it being understood that, given that those objectives are sometimes divergent, the Commission may try to reconcile them. Lastly, for the purpose of applying that derogation, measures cannot be regarded as necessary for the attainment of the objectives of the common agricultural policy unless they are proportionate.

(see paras 197-199, 208)

8. Observance of the rights of the defence is, in all proceedings in which sanctions, in particular fines, may be imposed, a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings. In accordance with that principle, the statement of objections is an essential procedural safeguard which must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure.

Where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings and it indicates the main factual and legal criteria capable of giving rise to a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines.

To give indications in the statement of objections as regards the level of the fines envisaged, before the undertaking has been invited to submit its observations on the allegations against it, would be to anticipate the Commission’s decision. All the more so, to raise in the statement of objections the question whether the fine which may be imposed by the final decision will adhere to the 10% maximum would also anticipate the decision and would thus be inappropriate.

(see paras 217-218, 222)

9. Where the Commission imposes a fine on an individual undertaking which is the perpetrator of an infringement, it is not necessarily required, in the absence of specific circumstances, to state express reasons for adhering to the maximum 10% of the turnover of the undertaking in question. The latter must be aware of the existence of that legal limit and the specific amount of its turnover and can then ascertain, even without any reasons in the decision in question, whether or not the 10% maximum was exceeded by the fine imposed on that undertaking.

On the other hand, where the Commission sanctions an association of undertakings and ensures that the legal limit of 10% of the turnover on the basis of the aggregate turnover of all or some of the members of the association is not exceeded, it must state this expressly in its decision and must set out the reasons which justify taking the members’ turnover into account. If reasons are not given, the persons concerned will not know the justification for the decision and will not be able to ensure properly that the legal limit was adhered to in the particular case.

(see paras 238-239)

10. Although the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty are not the legal basis of the decision imposing a fine on a trader, that decision being based on Regulation No 17, they determine, in a general and abstract manner, the method by which the Commission has bound itself in setting the amount of fines. Therefore, there is a direct link between that decision and the Guidelines, with the result that they may form the subject‑matter of an objection of illegality.

(see para. 250)

11. Cartels relating to prices or the partitioning of markets are by nature very serious infringements. Therefore the Commission did not infringe the principle of proportionality by stating in Section 1A of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty that those kinds of infringements are to be regarded as very serious, for which a starting amount of EUR 20 million is provided.

In any event, the flat-rate amounts provided for by the Guidelines are merely indicative and therefore cannot in themselves give rise to an infringement of the principle of proportionality.

(see paras 252-253)

12. Article 15(2) of Regulation No 17, in providing that the Commission may impose fines of up to 10% of turnover during the preceding business year for each undertaking which participated in the infringement, requires only that the fine eventually imposed on an undertaking be reduced if it should exceed 10% of its turnover, irrespective of the intermediate stages in the calculation intended to take account of the gravity and duration of the infringement. Consequently, Article 15(2) of Regulation No 17 does not prohibit the Commission from referring, during its calculation, to an intermediate amount exceeding 10% of the turnover of the undertaking concerned, provided that the amount of the fine eventually imposed on the undertaking does not exceed that maximum limit. This consideration also applies to the maximum amount of EUR 1 million.

(see para. 255)

13. In the light of Section 1B of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, which provides that the duration of the infringement may entail a possible increase in the amount of the fine established on the basis of gravity, it seems that the very short duration of the infringement, less than one year, means merely that no additional amount should be imposed on the amount calculated by reference to the gravity of the infringement. In any event, the fact that an infringement was of very short duration does not call into question the existence of an infringement of Article 81(1) EC.

(see paras 134, 257-258)

14. Secret continuation of an agreement after the Commission has ordered the participating undertakings or associations of undertakings to put an end to that agreement, and the use of violence in order to compel a party to adopt an agreement or to ensure that the agreement is being applied, are among the aggravating circumstances which the Commission may take into account in increasing the amount of a fine imposed pursuant to Article 81 EC.

(see paras 271, 278-289)

15. Article 15(2) of Regulation No 17 does not prevent the Commission from imposing fines of more than EUR 1 000 000 on associations which allegedly have no turnover. The use of the general term ‘infringement’ in Article 15(2) of Regulation No 17, inasmuch as it covers without distinction agreements, concerted practices and decisions of associations of undertakings, indicates that the upper limits laid down in that provision apply in the same way to agreements and concerted practices as to decisions of associations of undertakings. Where an association of undertakings has no economic activity of its own or where its turnover does not reveal the influence it may have on the market, the Commission may, under certain conditions, take into consideration the turnover of its members for the purpose of calculating the maximum fine which may be imposed on it.

Although in that provision the only express reference to the turnover of the undertaking concerns the upper limit of a fine exceeding EUR 1 000 000, Section 5(a) of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, by which the Commission has bound itself, states that the final amount of fine calculated may not in any case exceed 10% of the worldwide turnover of the undertakings, as laid down by Article 15(2) of Regulation No 17. The limit of 10% of turnover must accordingly be observed, even with regard to the setting of fines of less than EUR 1 million.

Moreover, the upper limit of 10% of the turnover must be calculated by reference to the turnover achieved by each of the undertakings that are parties to the agreements and concerted practices or by all the members of the associations of undertakings, at least where the internal rules of the association empower it to bind its members. The possibility of taking into account for that purpose the turnover of all the undertakings that are members of an association is justified by the fact that, in determining the amount of the fines, account may be taken inter alia of such influence as the undertaking may have been able to exercise in the market, in particular by reason of its size and economic power, of which its turnover may give an indication, and the deterrent effect that fines must have. The influence which an association of undertakings may have had on the market depends not on its own turnover, which reveals neither its size nor its economic power, but rather on the turnover of its members which gives an indication of its size and economic power.

However, the possibility must not be ruled out that, in certain cases, the turnover of the members of an association could also be taken into account even if the association does not possess formal power to bind its members, there being no internal rules enabling it to do so. The Commission’s option of imposing fines of an amount appropriate to the infringements at issue could otherwise be jeopardised, as associations with a very small turnover but bringing together a large number of undertakings which could not be formally bound but which together have a substantial turnover could be sanctioned only by very small fines, even if the infringements for which they were responsible could have a considerable influence on the markets in question. Furthermore, this eventuality would run counter to the need to ensure that sanctions for infringements of the Community competition rules have a deterrent effect.

Therefore, other specific circumstances, beyond the existence of internal rules enabling the association to bind its members, may justify taking account of the aggregate turnover of the members of the association in question. This applies in particular to cases where an infringement on the part of an association involves its members’ activities and where the anti-competitive practices at issue are engaged in by the association directly for the benefit of its members and in cooperation with them, the association having no objective interests independent of those of its members. Although, in some of those situations, the Commission could impose individual fines on each of the member undertakings in addition to sanctioning the association in question, this could be particularly difficult or impossible where the number of members is very large.

In those cases, in any event, the option of taking into account the turnover of the basic members of the associations of undertakings must, however, be confined, in principle, to those of their members who operated in the markets affected by the infringements sanctioned in the contested decision.

Furthermore, taking into account the turnover of the members of an association of undertakings in determining the 10% limit does not mean that a fine has been imposed on them or even that the association in question has an obligation to recover the amount of the fine from its members.

(see paras 313-314, 317-319, 325, 343)

16. The principle ne bis in idem is a general principle of Community law which is upheld by the Community courts. In the field of Community competition law, the principle precludes an undertaking from being sanctioned by the Commission or made the defendant to proceedings brought by the Commission a second time in respect of anti-competitive conduct for which it has already been penalised or of which it has been exonerated by a previous decision of the Commission that is not amenable to challenge. The application of the principle ne bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset. However, it does not prohibit the sanctioning of a number of different associations of undertakings which participated in a single infringement by reason of the participation and the degree of responsibility of each one of them in the infringement, even if some of them are members of the others.

(see paras 340-344)

17. While the Commission has discretion in setting the amount of fines imposed for infringements of the Community competition rules, the Court has, by virtue of Article 17 of Regulation No 17, unlimited jurisdiction within the meaning of Article 229 EC to review decisions whereby the Commission has fixed a fine and may, consequently, cancel, reduce or increase the fine imposed. Under that unlimited jurisdiction, the Court may, inter alia, adjust the amount of the reduction in the fine granted by the Commission to an undertaking or an association of undertakings as one of the circumstances provided for in Section 5(b) of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty.

(see paras 352, 355-361)

JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

13 December 2006 ( )

(Competition – Article 81(1) EC – Beef – Suspension of imports – Fixing of a union price scale – Regulation No 26 – Associations of undertakings – Restriction of competition – Trade union action – Effect on trade between Member States – Obligation to state reasons – Guidelines on the method of setting fines – Principle of proportionality – Gravity and duration of the infringement – Aggravating and attenuating circumstances – Prohibition of multiple sanctions – Rights of the defence)

In Joined Cases T‑217/03 and T‑245/03,

Fédération nationale de la coopération bétail and viande (FNCBV), established in Paris (France), represented by R. Collin, M. Ponsard and N. Decker, lawyers,

applicant in Case T‑217/03,

Fédération nationale des syndicats d’exploitants agricoles (FNSEA), established in Paris,

Fédération nationale bovine (FNB), established in Paris,

Fédération nationale des producteurs de lait (FNPL), established in Paris,

Jeunes agriculteurs (JA), established in Paris,

represented by B. Neouze and V. Ledoux, lawyers,

applicants in Case T‑245/03,

supported by

French Republic, represented initially by G. de Bergues, F. Million and R. Abraham, and subsequently by M. de Bergues, E. Belliard and S. Ramet, acting as Agents,

intervener,

v

Commission of the European Communities, represented by P. Oliver, A. Bouquet and O. Beynet, acting as Agents,

defendant,

APPLICATIONS, principally, for annulment of Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 EC (Case COMP/C.38.279/F3 – French beef) (OJ 2003 L 209, p. 12) and, alternatively, an application for the cancellation or reduction of the fines imposed by that decision,

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

composed of R. García-Valdecasas, President, J.D. Cooke and I. Labucka, Judges,

Registrar: E. Coulon,

having regard to the written procedure and further to the hearing on 17 May 2006,

gives the following

Judgment

Legal context

1 Article 1 of Regulation No 26 of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products (OJ, English Special Edition 1959-1962, p. 129) provides that Articles [81] to [86] EC and provisions made in implementation thereof shall, subject to Article 2 of that regulation, apply to all agreements, decisions and practices referred to in Articles [81](1) and [82] EC which relate to production of or trade in the products listed in Annex [I] to the Treaty, including in particular live animals and meat and edible meat offals.

2 Article 2(1) of that regulation provides as follows:

‘Article 81[1] EC shall not apply to such of the agreements, decisions and practices referred to in the preceding Article as form an integral part of a national market organisation or are necessary for attainment of the objectives set out in Article [33 EC]. In particular, it shall not apply to agreements, decisions and practices of farmers, farmers’ associations, or associations of such associations belonging to a single member State which concern the production or sale of agricultural products or the use of joint facilities for the storage, treatment or processing of agricultural products, and under which there is no obligation to charge identical prices, unless the Commission finds that competition is thereby excluded or that the objectives of Article [33 EC] are jeopardised.’

Facts

3 The applicant in Case T‑217/03, the Fédération nationale de la coopération bétail et viande (FNCBV), comprises 300 cooperative groups of producers in the cattle, pig and sheep-farming sectors and some 30 slaughter and meat-processing groups or undertakings in France.

4 The applicants in Case T‑245/03, namely the Fédération nationale des syndicats d’exploitants agricoles (FNSEA), the Fédération nationale bovine (FNB), the Fédération nationale des producteurs de lait (FNPL) and Jeunes agriculteurs (JA), are unions governed by French law. FNSEA is the main French farmers’ union. Territorially it consists of local unions grouped together in departmental (département) federations or unions of farmers (FDSEA or UDSEA). In each region federations coordinate the activities of FDSEA and UDSEA. In addition, FNSEA comprises 33 specialised associations representing the interests of each type of producer, including FNB and FNPL. Lastly, JA represents farmers under 35 years of age. To be a member of the local centre of JA, it is necessary to be a member of a local union belonging to FDSEA or UDSEA.

I – Second ‘mad cow’ crisis

5 From October 2000, new cases of bovine spongiform encephalopathy, commonly known as ‘mad cow’ disease, were discovered in several Member States. At the same time, there was an outbreak of foot-and-mouth disease in sheep in the United Kingdom. This situation caused a loss of confidence on the part of consumers, which had an impact on meat consumption in general in Europe and created a new crisis in the beef sector. There was a sharp drop in beef consumption, particularly in France, and also a substantial reduction in French imports and exports. Likewise producer prices of adult cattle fell very considerably in France, while final consumer prices remained relatively stable.

6 To meet this crisis, the Community institutions adopted a whole series of measures. The scope of the intervention mechanisms for withdrawing certain quantities of cattle from the market so as to stabilise supply in relation to demand was extended and a scheme for the purchase of live animals was set up, together with a purchase scheme based on a tender procedure for carcasses or half-carcasses (‘special purchase scheme’). In addition, the Commission authorised several Member States, including France, to grant aid to the beef sector.

7 However, those measures were deemed insufficient by French farmers. In September and October 2001 relations between farmers and slaughterers became particularly tense in France. Groups of farmers stopped lorries illegally in order to check the origin of the meat being transported and blockaded abattoirs. These acts some times led to the destruction of plant and of meat. In return for lifting the blockade of abattoirs, the protesting farmers demanded undertakings from the slaughterers to suspend imports and to apply a so-called ‘union’ price scale.

II – Conclusion of the contested agreements and administrative procedure before the Commission

8 In October 2001 several meetings took place between the federations representing beef farmers (the applicants in Case T-245/03) and those representing the slaughterers (the Fédération nationale de l’industrie et des commerces en gros des viandes (FNICGV) and the applicant in Case T-217/03). Following a meeting on 24 October 2001, organised at the request of the French Minister for Agriculture, an agreement (‘Agreement of the federations of stock farmers and slaughterers on the minimum slaughterhouse entry price scale for culled cows’) was concluded between the six federations, namely FNSEA, FNB, FNPL, JA, FNCBV and FNICGV.

9 The agreement had two parts. The first was a ‘temporary commitment to suspend imports’, which made no distinction between types of beef. The second consisted of a ‘commitment to apply the slaughterhouse entry price scale to culled cows’ (that is to say, cows to be used either for reproduction or milk production), the arrangements for which were set out in the agreement. Consequently it contained a list of prices per kilogram of carcass for certain categories of cows and the method of calculating the price to be applied to other categories, depending inter alia on the special purchase price set by the Community authorities. The agreement was to enter into force on 29 October 2001 and to be applied until the end of November 2001.

10 On 30 October 2001 the Commission sent the French authorities a letter requesting information on the agreement of 24 October 2001.

11 On 31 October 2001 the applicants in Case T-245/03 and FNICGV held a meeting at Rungis (France) on the initiative of the latter. Those federations adopted the following compromise (‘the Rungis protocol’):

‘“Meat imports” meeting

31 October 2001 − Rungis

The French undertakings specialising in the import and export sector have held a meeting with the producers’ federations (FNSEA, FNB, FNPL and [JA]) that signed the national inter-trade agreement of 24 October 2001.

…

They reaffirm the imperative need to bring supply and demand back into balance …

In the unprecedented crisis situation currently facing producers, the representatives of the farmers urge importers and exporters to be aware of the seriousness of the crisis.

In response, the importers and exporters undertake to demonstrate solidarity.’

12 On 9 November 2001, the French authorities replied to the Commission’s request for information of 30 October 2001.

13 Also on 9 November 2001, the Commission wrote to the applicants in Case T‑245/03 and to FNICGV requesting information pursuant to Article 11 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-62, p. 87). As the Commission was not at that time aware that the applicant in Case T‑217/03 had also signed the agreement of 24 October 2001, the request for information was not sent to it. The five federations in question replied to the requests for information on 15 and 23 November 2001.

14 On 19 November 2001, the president of FNICGV informed the president of FNSEA that he felt obliged to bring forward to that day the final date of application of the agreement, initially scheduled for 30 November 2001.

15 On 26 November 2001, the Commission wrote a letter of formal notice to the six federations which had signed the agreement of 24 October 2001 stating that the facts which had come to its knowledge indicated that the Community competition rules had been infringed and the federations were asked to submit their observations and proposals by 30 November 2001 at the latest. The Commission’s letter stated that ‘failing satisfactory proposals by that date, [it] envisages initiating a procedure seeking to establish those infringements and to order that they be discontinued if the agreement has been extended, the possibility also arising of the imposition of fines, if appropriate’. The federations replied that the agreement would end on 30 November 2001 and would not be extended.

16 On 17 December 2001, the Commission carried out investigations on the premises of FNSEA and FNB in Paris pursuant to Article 14(3) of Regulation No 17 and on the premises of FNICGV, also in Paris, on the basis of Article 14(2).

17 On 24 June 2002, the Commission adopted a statement of objections addressed to the six federations. They submitted their written observations between 23 September and 4 October 2002. The federations were heard on 31 October 2002.

18 On 10 January 2003, the Commission sent the applicants a request for information within the meaning of Article 11 of Regulation No 17. In particular, it asked them for the total amount, together with a breakdown according to origin, of the income of each federation and their accounting balance sheets for 2001 and 2002, and also the turnover of their direct and/or indirect members for the latest tax year available (overall turnover and turnover connected with the production or slaughter of cattle). The applicants replied by letters of 22, 24, 27 and 30 January 2003.

III – The contested decision

19 On 2 April 2003, the Commission adopted decision 2003/600/EC relating to a proceeding pursuant to Article 81 [EC] (Case COMP/C.38.279/F3 – French beef) (OJ 2003 L 209, p. 12, ‘the contested decision’), which is addressed to the applicants and to FNICGV.

20 According to the decision, the federations infringed Article 81(1) EC by concluding on 24 October 2001 a written agreement with a view to fixing a minimum purchase price for certain categories of cattle and suspending imports of beef into France, and by concluding, between the end of November and the beginning of December 2001, a verbal agreement having the same object, applicable as from the expiry of the written agreement.

21 At recitals 135 to 149 of the contested decision, the Commission refused to allow in the present case the exemption provided for by Regulation No 26 in favour of certain activities connected with the production of and trade in agricultural products, finding that the agreement was not necessary for attaining the objectives of the common agricultural policy set out in Article 33 EC. Furthermore, the agreement at issue was not one of the means provided for by Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal (OJ 1999 L 160, p. 21) or by the measures implementing it. Lastly, the measures taken were not proportionate to the objectives allegedly sought.

22 According to the contested decision, the infringement began on 24 October 2001 and lasted at least until 11 January 2002, the expiry date of the last local agreement to apply the national agreement of which the Commission was aware.

23 In view of the nature and the geographic extent of the relevant market, the infringement was described as very serious. To determine the degree of responsibility of each federation, the Commission took into account the ratio between the amount of the annual membership fees collected by the main farmers’ federation, FNSEA, and that of each of the other federations. As the infringement was of short duration, the Commission did not increase the basic amount.

24 The Commission then found that there were several aggravating circumstances in relation to the applicants:

– it increased the fines on ENSEA, JA and FNB by 30% because their members had used violence to compel the slaughterers’ federations to adopt the agreement of 24 October 2001;

– it increased the fines of all the applicants by 20% by reason of the aggravating circumstance that they continued the agreement in secret after the letter of formal notice of 26 November 2001;

– it took into account the preponderant role allegedly played by FNB in the preparation and implementation of the infringement by increasing its fine by 30%.

25 In addition, the Commission took various attenuating circumstances into account:

– in view of the passive or follow-my-leader role played by FNPL, the Commission reduced its fine by 30%;

– with regard to the applicant in Case T-217/03, the Commission took into account, first, the forceful intervention of the French Minister for Agriculture in favour of the conclusion of the agreement (30% reduction) and, second, the illegal blockading of their members’ establishments by farmers (further 30% reduction).

26 In addition, pursuant to Section 5(b) of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3, ‘the Guidelines’), the Commission took account of the specific circumstances of the case in question, particularly the specific economic context marked by the crisis in the industry, and reduced by 60% the fines resulting from the application of the abovementioned increases and reductions.

27 The operative part of the contested decision includes the following provisions:

‘Article 1

[FNSEA], [FNB], [FNPL], [JA], [FNICGV] and [FNCBV] infringed Article 81(1) [EC] by concluding on 24 October 2001 an agreement which had the object of suspending imports of beef into France and fixing a minimum price for certain categories of cattle, and by concluding verbally an agreement with a similar object at the end of November and beginning of December 2001.

The infringement began on 24 October 2001 and continued to have effect at least until 11 January 2002.

Article 2

The federations named in Article 1 shall immediately bring the infringement to an end, in so far as they have not already done so, and shall henceforward refrain from any restrictive practice that has the same or an equivalent object or effect.

Article 3

The following fines are hereby imposed:

– FNSEA: EUR 12 million,

– FNB: EUR 1.44 million,

– JA: EUR 600 000,

– FNPL: EUR 1.44 million,

– FNICGV: EUR 720 000,

– FNCBV: EUR 480 000.’

Procedure and forms of order sought

28 By applications lodged at the Registry of the Court of First Instance on 19 and 20 June 2003, the applicants brought the present actions.

29 By application lodged on 7 July 2003, FNICGV also brought an action seeking, principally, the cancellation of a fine imposed on it by the contested decision and, alternatively, a reduction in the amount of the fine (Case T‑252/03). By order of 9 November 2004, the Court dismissed the action brought by FNICGV as inadmissible.

30 By separate documents received by the Court Registry on 2 and 11 July 2003, the applicants lodged applications for interim measures seeking to secure total or partial dispensation from the obligation to provide bank guarantees, which was imposed as a condition for avoiding the immediate recovery of the amount of the fines imposed by the contested decision.

31 On 7 October 2003, France applied to intervene in each case in support of the forms of order sought by the applicants. By orders of 6 November 2003, the President of the Fifth Chamber of the Court granted leave to intervene. France lodged statements in intervention on 23 December 2003.

32 By orders of the President of the Court of 21 January 2004, a stay was granted of the applicants’ obligation (save in the case of FNPL, which had made no application to that effect) to furnish bank guarantees in favour of the Commission in order to avoid the immediate recovery of the fines, for a limited period and subject to certain conditions.

33 By way of measures of organisation, the Court asked the parties on 21 February, 8 and 9 March 2006 to produce certain documents and to reply to certain questions. The parties complied within the time-limits allowed.

34 Upon the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.

35 By order of 3 April 2006, the President of the First Chamber of the Court, after hearing the parties, ordered the joinder of Cases T‑217/03 and T‑245/03.

36 The parties presented oral argument and replied to questions from the Court at the hearing of 17 May 2006.

37 The applicants claim that the Court should:

– principally, annul the contested decision;

– in the alternative, cancel the fines imposed on them by the contested decision or, in the further alternative, reduce the fines;

– order the Commission to pay the costs.

38 The French Republic, intervening in support of the applicants, claims that the Court should:

– annul the contested decision;

– order the Commission to pay the costs.

39 The Commission contends that the Court should:

– dismiss the applications;

– order the applicants to pay the costs.

40 By letters of 19 and 22 May 2006, the applicants submitted to the Court documents forming part of the Commission’s administrative file which had not previously been submitted to the Court in full. By order of 7 July 2006, the Court decided to reopen the oral procedure pursuant to Article 62 of the Rules of Procedure.

41 After hearing the parties, the Court adopted a measure pursuant to Article 64 of the Rules of Procedure, consisting in adding to the file the documents lodged by the applicants on 19 and 22 May 2006. The Commission submitted observations on the said documents by letter of 2 August 2006.

42 The oral procedure was then closed on 2 September 2006.

Merits of the case

43 The applicants seek primarily the annulment of the contested decision. In the alternative, they seek the cancellation or reduction of the fines imposed on them by that decision.

I – The claims for annulment of the contested decision

44 The applicants adduce five pleas in law in support of their claims for annulment of the contested decision. The first plea alleges manifest errors of assessment and errors of law in the assessment of the conditions for the application of Article 81(1) EC. The second plea in law alleges manifest errors of assessment and errors of law in establishing the extent and duration of the infringement. The third plea is that the exception provided for by Regulation No 26 was not applied to the disputed agreement. The fourth plea alleges infringement of the rights of the defence. The fifth plea alleges a failure to state reasons.

A – First plea in law: manifest errors of assessment and errors of law in the assessment of the conditions required for the application of Article 81(1) EC

45 The applicants do not deny concluding the agreement of 24 October 2001, but do deny that it gives rise to an infringement of Article 81(1) EC. The applicants in Case T-245/03 criticise the Commission’s description of them as associations of undertakings within the meaning of that provision and claim that, in the contested decision, the Commission restricted their exercise of the freedom of association. In addition, the applicant in Case T‑217/03 claims that the agreement in question did not appreciably affect trade between the Member States. Lastly, in both cases the applicants submit that the disputed agreement did not entail a restriction of competition.

1. Description of the applicants as associations of undertakings

a) Arguments of the parties

46 The applicants in Case T-245/03 submit, first, that the Commission manifestly erred in its assessment and infringed Article 81(1) EC in finding that they constituted associations of undertakings. They claim that, even if the two lower levels of their hierarchical organisations in pyramid form are taken into account (namely the department federations and local unions), their members are not undertakings but farmers’ unions or federations. Likewise, the members of local unions cannot be treated as undertakings because the criterion for membership of these does not relate to the agricultural undertaking, as membership is not connected with the status of head of the farm in the case of an individual holding (the spouse of an individual farmer may become a member) or with the status of representative of the legal person in the case of farming in the form of a partnership (each partner deciding individually whether to join a local union or not). Second, the applicants consider that, in the contested decision, the Commission did not give a sufficient statement of the reasons for describing them as associations of undertakings. In particular, the Commission failed to reply to the observations put forward on that point by FNSEA during the administrative procedure.

47 The Commission observes, first, that, to determine whether the applicants are associations of undertakings, it is necessary to determine, in short, who their members are. The farmers in the present case are without any doubt undertakings within the meaning of Article 81 EC. Second, the Commission submits that the contested decision sets out in detail the reasons why it found that the applicants are associations of undertakings within the meaning of that provision.

b) Findings of the Court

48 First of all, it must be observed that the applicant in Case T‑217/03 does not dispute that the agreement of 24 October 2001 is, so far as the applicant is concerned, an agreement between associations of undertakings within the meaning of Article 81(1) EC. On the other hand, the applicants in Case T‑245/03 maintain that they cannot be described as associations of undertakings within the meaning of that provision. They submit, in substance, that neither their direct members nor their indirect members are undertakings.

49 Article 81(1) EC applies to associations in so far as their own activities or those of the undertakings belonging to them are calculated to produce the results which it aims to suppress (Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 88). Having regard to the purpose of that provision, the concept of an association of undertakings must be understood as being capable of applying to associations which themselves consist of associations of undertakings (see, to that effect, Case T-193/02 Piau v Commission [2005] ECR II-209, paragraph 69; see also, by analogy, Case T‑136/94 Eurofer v Commission [1999] ECR II-263, paragraph 9).

50 In the present case, the applicants concluded the disputed agreements in the interest and on behalf of, not their direct members, which are actually farmers’ federations or unions, but the farmers who are the basic members of the latter. Accordingly the agreement of 24 October 2001, entitled ‘Agreement of the federations of stock farmers and slaughterers’, was concluded by the ‘federations representing stock farmers’, ‘with the aim of opening prospects for a new relationship in the sector for fair and legitimate remuneration of all those involved, stock farmers and undertakings’. Likewise, the Rungis protocol expressly refers to ‘the producers’ federations’. Therefore it must be concluded that the Commission was right to take into consideration the indirect or basic members of the applicants in Case T‑245/03, namely farmers, in order to determine whether they constituted associations of undertakings within the meaning of Article 81(1) EC.

51 Consequently, it is necessary to ascertain whether the Commission was correct in taking the view that farmers, the basic or indirect members of those applicants, could be regarded as undertakings for the purpose of applying Article 81 EC.

52 It has consistently been held that, in the context of competition law, the concept of an undertaking encompasses every entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (Case C‑55/96 Job Centre [1997] ECR I-7119, paragraph 21). Any activity consisting in offering goods and services on a given market is an economic activity (Case T-513/93 Consiglio Nazionale degli Spedizionieri Doganali v Commission [2000] ECR II‑1807, paragraph 36).

53 The activity of farmers, whether arable or stock farmers, is certainly of an economic nature. Their activity is indeed the production of goods which they offer for sale in return for payment. Consequently, farmers constitute undertakings within the meaning of Article 81(1) EC.

54 Therefore the unions which bring them together and represent them, and the federations which bring the unions together, may be described as associations of undertakings for the purpose of applying that provision.

55 This conclusion cannot be undermined by the fact that local unions may also bring together farmers’ spouses. First, the spouses of arable or stock farmers who are themselves members of a local farmers’ union probably share in the tasks of the family farm. Second, in any case the mere fact that an association of undertakings may also bring together persons or entities that cannot be described as undertakings is not sufficient to affect its status as an association within the meaning of Article 81(1) EC. Likewise, the applicants’ argument that, where a farm takes the form of a partnership, it is not the partnership that, through its representative, joins the union, but each of the partners, must be dismissed. As stated above (see paragraph 52), what is important for the purpose of classifying an undertaking is not its legal status or the form of farm in question, but the activity of the farm and those who share in it.

56 Lastly, it is also necessary to dismiss the objection that the obligation to state reasons was not fulfilled on the ground, in substance, that, in the contested decision, the Commission did not reply to the observations submitted by FNSEA during the administrative procedure against its categorisation as an association of undertakings.

57 It must be observed that, although Article 253 EC requires the Commission to state the elements of fact and law which constitute the legal basis of the decision and the considerations which led it to adopt the decision, it is not required to discuss all the issues of fact and law which have been raised by every party during the administrative proceedings (Joined Cases T-305/94 to T-307/94, T-313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraph 388).

58 In the present case, the contested decision sets out briefly the argument of FNSEA that it is neither an undertaking nor an association of undertakings but a trade union, and also the arguments of FNPL and JA in that connection (see recital 97, second indent, recital 98 and recital 99, second indent, of the contested decision). Those arguments are dismissed in detail in the contested decision. Accordingly, it is explained that the applicants represent farmers who engage in the activity of producing goods which they offer for sale, that Regulation No 26 would serve no purpose if they were not also undertakings (recital 105 of the contested decision), that the fact that the applicants take the form of trade unions within the meaning of the French Labour Code does not affect their status as associations of undertakings (recitals 110 and 111 of the contested decision), that their trade union activity does not entitle them to disregard the rules of competition and that penalties have been imposed on similar organisations by the French Competition Board (see recitals 112 to 114 of the contested decision). Lastly, the contested decision also refers to previous decisions of the Commission and the relevant case-law (recitals 104 and 106 of the contested decision).

59 In the light of the foregoing, it must be held that the Commission gave sufficient reasons, in the contested decision, for categorising the applicants as associations of undertakings.

60 Consequently, this complaint must be rejected in its entirety.

2. No appreciable effect on trade between Member States

a) Arguments of the parties

61 The applicant in Case T-217/03 submits that the Commission did not prove that the disputed agreement had an appreciable effect on trade between Member States. The applicant claims that the part of the agreement relating to the suspension of imports was immediately called into question by the Rungis protocol and that, in any case, the applicant was importing hardly any beef cattle and was therefore not concerned in that aspect. The applicant brings together stock farmers’ cooperatives which themselves have slaughtering subsidiaries, the cooperatives collecting and marketing almost exclusively beef produced by their members. Furthermore, the Commission could not base such an effect on trade on no more than an analysis of the potential effects of the agreement, but ought to have examined its real effects. An analysis of trends in the market during the period in question does not show that the agreement produced effects on flows of imports. With regard to minimum selling prices, the applicant observes that the agreement remained in force for nearly one month and submits that its brief duration prevented it from affecting imports into France.

62 The Commission maintains that an agreement with the object of limiting imports is by nature likely to affect trade between Member States. It also claims that the agreement on prices was also likely to affect trade within the Community.

b) Findings of the Court

63 Article 81(1) EC applies only to agreements which may affect trade between Member States. For an agreement between undertakings to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market between the States (Case C-359/01 P British Sugar v Commission [2004] ECR I-4933, paragraph 27, and Joined Cases T‑213/95 and T‑18/96 SCK and FNK v Commission [1997] ECR II‑1739, paragraph 175).

64 In the present case, the agreement of 24 October 2001 contained an undertaking to suspend temporarily imports of beef into France. As the contested decision points out, France is one of the main beef importers in the Community. Most of these imports (approximately 95%) are from other Member States (recital 11 of the contested decision). It follows that the disputed agreement was necessarily capable of affecting trade between Member States.

65 This conclusion cannot be refuted by the applicant’s argument that the part of the agreement of 24 October 2001 entitled ‘Imports’ was dropped only a few days later, on the conclusion of the Rungis protocol of 31 October 2001. Any agreement that fulfils the conditions for the application of Article 81(1) EC falls within the scope of that provision. In any case, as will be found below (see paragraph 136), the Rungis protocol, entitled ‘“Meat imports” meeting’, expressly related to imports and did not entail the complete abandonment of the import suspension measures decided upon by the applicants.

66 The applicant’s argument that the ‘Imports’ part of the agreement was of no concern to it because its members import hardly any beef cattle must also be rejected. According to the figures produced by the applicant, its members’ imports represent a percentage of the total beef imports into France which, although small, is not entirely negligible (approximately 1.5% in 2001, that is to say, 3 865 tonnes). At the hearing, the Commission maintained that the applicant’s members had imported larger quantities of beef in the past (15 000 tonnes in the year before the beginning of the crisis), which was not denied by the applicant. It must also be observed that, although it is true that the applicant’s cooperative members collect and market the beef produced by their members, they may also market, up to a limit of 20% of their annual turnover, the production of farmers who are not members. Lastly, in any case, as the infringement in which the applicant participated was apt to affect trade between Member States, the Commission was not required to demonstrate that the applicant’s individual participation affected intra-Community trade (see, to that effect, Case T-14/89 Montedipe v Commission [1992] ECR II-1155, paragraph 254).

67 In addition, it must be observed that the part of the disputed agreement relating to the establishment of a minimum price scale was alone capable of affecting intra-Community trade. Practices restricting competition which extend over the whole territory of a Member State have, by their very nature, the effect of reinforcing compartmentalisation of national markets, thereby holding up the economic interpenetration which the Treaty is intended to bring about (SCK and FNK v Commission, paragraph 179). In this connection, it is necessary to determine the relative extent of the restrictive practice in the relevant market and the economic context of that practice. In the present case, it should be noted that French cattle numbers account for more than 25% of the total cattle population in the Community (recital 10 of the contested decision). Lastly, the Court of Justice has held that, where the market concerned is susceptible to imports, the members of a national price cartel can retain their market share only if they defend themselves against foreign competition (British Sugar v Commission, paragraph 28).

68 Lastly, contrary to the applicant’s assertions, the Commission had no obligation to show that the disputed agreement had an appreciable effect, in practice, on trade between Member States. As indicated in paragraph 63 above, Article 81(1) EC requires only that anti-competitive agreements and concerted practices should be capable of having an effect on trade between Member States (see also Montedipe v Commission, paragraph 253).

69 Consequently, this complaint must be dismissed.

3. No restriction of competition

a) Arguments of the parties

70 The applicants submit, in substance, that the disputed agreement did not restrict competition and therefore did not fall within the scope of Article 81(1) EC.

71 The applicants submit that the Commission erred in finding that the agreement in question had an anti-competitive object. They claim that the Commission could not ascribe to them the ‘Imports’ part of the agreement and ought to have reasoned solely on the basis of the restriction of price competition, if any. However, the disputed scale prices were set on the basis of the intervention prices laid down by the Commission itself in the framework of the common organisation of the market (CMO) in the beef sector, which constitute the market reference and are very low. Furthermore, the agreement had only very limited actual effects, or none at all, for a very brief period, with no repercussions on consumer prices.

72 The applicants also allege that the agreement of 24 October 2001 concerned only a minimum recommended price, to which the applicants could not compel their members to adhere. In the case of a vertical agreement, the fixing of recommended prices is not by nature a restriction of competition. Article 4(a) of Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) [EC] to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21), prohibits only the fixing of the resale price to a buyer whereas, in the present case, the slaughterers remain free to determine their prices to large retailers or to wholesalers. Lastly, the applicants draw attention to the specific features of the farming sector, which does not permit the lasting emergence of a spontaneous balance between supply and demand and which needs regulation by means other than those of the market, as the competition rules do not apply to it automatically. In support of their arguments, the applicants in Case T‑245/03 annex to their application a legal opinion dated 2 June 2003.

73 In addition, the applicants observe that, when the Commission examines a restriction of competition, it must take into account the overall legal and economic context in which the disputed agreement was concluded and they add that not every agreement between undertakings which restricts the freedom of action of the parties or of one of them necessarily falls within the prohibition laid down in Article 81(1) EC (Case C-309/99 Wouters and Others v Commission [2002] ECR I-1577, paragraph 97). An agreement which has an anti-competitive object or effects escapes the prohibition if it enables different objectives to be safeguarded, provided that the restrictive effects are necessary for safeguarding those objectives and that they do not eliminate all competition in a substantial part of the common market. Therefore the Commission ought to have carried out a detailed and concrete analysis of the nature and object of the agreement in question, as well as its effects, which it failed to do.

74 The applicants also submit that the Commission underestimated the situation of extreme crisis in which French farmers of adult cattle found themselves at the material time. The applicants add that the prices of cattle concerned by the disputed agreement fell in 2001, on average, to their lowest level since 1980 and that the prices paid to producers after the deduction of marketing costs fell below the cost of production, even after deduction of the aid received. European consumption of beef fell by nearly 10% in 2001, which directly affected French farmers, who risked disappearing from the market.

75 The applicants also claim that the successive Community measures were found inadequate to meet the crisis. In particular, the special purchase scheme operates only at the slaughterhouse exit stage, whereas producers’ income is affected only at the slaughterhouse entry stage. Therefore the repercussions on producers of the price measures taken by the Community necessarily go through an inter-trade agreement between producers and slaughterers.

76 In that connection the applicants in Case T-245/03 submit that the Commission ought to have examined the agreement of 24 October 2001 as a regulatory document and they observe that the coordinated management between the State and the union federations is traditional in the farming sector in France. The applicants responded to the French Government’s express and public request, the aim of which was to avoid an economic disaster for beef producers which could lead to the break-up of the beef sector and which was already causing serious public disorder. The applicants note that the French Minister for Agriculture was the instigator of the agreement and that, in a statement to the French Parliament, he expressed his support for the progress in drawing up the agreement.

77 The Commission observes that, as the parties to the disputed agreement had agreed to wall off the national markets and to set minimum prices, it had to be concluded that the very aim of the agreement was to restrict competition. The Commission submits that, in any case, it took account of the economic and legal context of the agreement in the contested decision. The Commission adds that a number of measures were put into place at Community level to obviate the crisis. Lastly, the Commission submits that the encouragement given by the then French Minister for Agriculture to conclude the agreement does not relate to a regulatory power of any kind.

78 Furthermore, the Commission asks the Court to reject as inadmissible the legal opinion produced as an annex by the applicants in Case T‑245/03. Annexes to pleadings have a purely evidential and instrumental purpose (Case T-31/99 ABB Asea Brown Boveri v Commission [2002] ECR II-1881) and the questions of Community law must be examined by the legal representatives in the procedural documents themselves.

b) Findings of the Court

79 First of all, the Commission’s application for the rejection of the legal opinion produced by the applicants in Case T-245/03 as inadmissible must fail. It must be observed that all the documents lodged with the application are necessarily placed on the file. Whether the applicant may plead certain of those documents or whether the Court may take them into consideration is a different question. It must be observed that the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed to it, provided that the essential submissions in law appear in the application itself (see, to that effect, Case T-87/05 EDP v Commission [2005] ECR II-3745, paragraph 155, and Case T-209/01 Honeywell v Commission [2005] ECR II-5527, paragraph 57). In the present case, the Court considers that the applicants sufficiently explained in their pleadings their argument that the disputed agreement should be regarded as a regulatory measure. Therefore the annex in question serves only to support and supplement that argument. Consequently, the applicant was entitled to plead it.

80 With regard to the complaint raised by the applicants, they submit, in substance, that the disputed agreement had neither the object nor the effect of preventing, restricting or distorting competition in the single market within the meaning of Article 81(1) EC.

81 It must be observed straightaway that the agreement concluded by the parties on 24 October 2001 provided, first, for a commitment for the temporary suspension of beef imports into France and, second, for a commitment to apply a minimum slaughterhouse entry price scale to culled cows. Contrary to the applicants’ claim, and for the reasons set out in paragraphs 65 and 66 above, an examination of the question whether the disputed agreement was restrictive must take into account not only those of the abovementioned measures relating to prices, but also those aiming at the suspension of imports.

82 Accordingly it must be observed, first, that the commitment in the disputed agreement to suspend imports had, in particular, the object of preventing the entry into France of beef at prices below those of the price scale decided upon by the applicants, in order to ensure the sale of the production of French farmers and the effectiveness of the price scale. It necessarily follows that the object of the disputed agreement was to partition off the French national market and in that way to restrict competition in the single market.

83 Second, with regard to the establishment of a price scale, it must be borne in mind that Article 81(1) EC expressly provides that measures which directly or indirectly fix purchase or selling prices constitute restrictions of competition. It has consistently been held that price fixing is a patent restriction of competition (Case T-148/89 Tréfilunion v Commission [1995] ECR II‑1063, paragraph 109, and Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Servicesand Others v Commission [1998] ECR II-3141, paragraph 136).

84 In the present case, the applicants agreed on a slaughterhouse entry price scale for certain categories of cattle, which provided for a list of prices per kilogram of carcass for certain categories of cows and the method of calculating the price to be applied to other categories, by reference inter alia to the price fixed by the Community authorities in the framework of the special purchase scheme. Contrary to what the applicants claim, it is clear from the actual wording of the relevant stipulations of the disputed agreement that the prices were not recommended or target prices, but minimum prices to which the signatory federations undertook to secure adherence. The agreement provided that ‘the contributions should at least be consistent with this scale.’ Likewise, in a message of 8 November 2001 from the applicants in Case T-245/03 to their members, taking stock of the situation with regard to the application of the agreement of 24 October 2001, reference is made to the application of the ‘minimum price scale’.

85 By its very nature, an agreement such as that in the present case, concluded by federations representing farmers and federations representing slaughterers and fixing minimum prices for certain categories of cows, with the aim of making them binding on all traders in the markets in question, has the object of restricting competition in those markets (see, to that effect, Case 123/83 BNIC [1985] ECR 391, paragraph 22), inter alia by limiting artificially the commercial negotiating margin of farmers and slaughterers and distorting the formation of prices in the markets in question.

86 This conclusion cannot be undermined by the applicants’ argument that the agricultural markets are regulated markets where the competition rules do not automatically apply and where the formation of prices quite often does not answer to the free operation of supply and demand. No doubt the agricultural sector has certain specific features and is the object of very detailed regulation which is frequently rather interventionist. However, it must be observed that the Community competition rules apply to the markets for agricultural products, even if certain exceptions are provided for to take account of the particular situation of those markets, and this will be examined in the context of the third plea.

87 Likewise, the applicants cannot use the argument that the prices of the disputed scale were not restrictive because they were fixed by reference to the prices of the special purchase scheme which were laid down by the Commission itself. The comparative tables produced by the parties at the request of the Court show that, although the prices laid down by the agreement for cows of average or inferior quality were fixed by reference to the prices given in the framework of the special purchase scheme, the prices fixed by the agreement for cows of superior quality (which accounted for 30% of the number slaughtered in 2001) were appreciably higher than the abovementioned intervention prices. In any case, the disputed agreement does not cease to be restrictive merely because the minimum prices are fixed by reference to the government intervention price. Reference to the latter price does not mean that the disputed scale loses its anti-competitive object consisting in fixing directly and artificially a predetermined market price or that it can be treated in the same way as the various government support and intervention schemes in the common organisation of the agricultural markets which have the object of stabilising markets characterised by excess supply by means of withdrawing a part of production.

88 The applicants also allege that, under Article 4(a) of Regulation No 2790/1999, in a vertical agreement only the restriction of the buyer’s ability to determine his sale price is prohibited and they claim that the price scale established by the disputed agreement did not limit the slaughterers’ ability to determine their prices to their customers. However, this reference to Regulation No 2790/1999 is not relevant in the present case. Article 3 of the regulation excludes from the scope of the exemption by category laid down in favour of vertical agreements cases where the supplier’s market share exceeds 30% of the relevant market. The Commission observed, without being contradicted by the applicants, that the production of the members of the stock farmers’ federations substantially exceeded the limit of 30% of the French beef market.

89 With regard to the applicants’ allegation that they could not compel their members to adhere to the minimum prices decided upon, it must be said that, for an agreement between undertakings to fall within the ambit of Article 81(1) EC, it is not necessary for the associations in question to be able to compel their members to fulfil the obligations imposed on them by the agreement (see, to that effect, Case 71/74 Frubo v Commission [1975] ECR 563, paragraphs 29 to 31). Furthermore, it must be noted that the reference to the judgment in Wouters and Others, is irrelevant here because the factual circumstances and the legal problems raised by that case, which concerned the regulation by a professional association of the practice of the profession of lawyer and its organisation, are not comparable with those of the present case.

90 Furthermore, the applicants cannot justify the disputed agreement by pleading the crisis in the beef sector at the material time, which particularly affected French farmers of adult cattle. This circumstance cannot, on its own, lead to the conclusion that the conditions for applying Article 81(1) EC were not fulfilled (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, paragraph 740). In any case, it must be observed that, in its assessment, the Commission did not disregard the crisis throughout the sector, as is clear from paragraphs 10 to 15 and 130 of the contested decision. In addition, the Commission took it into account in determining the fines which were reduced by 60%.

91 The applicants must also fail in their argument that the disputed agreement was a national regulatory measure which accorded with the traditional practice in France of management coordinated between the administration and the farmers’ federations and which was justified by the ineffectiveness of the measures adopted by the government authorities. In this connection it must be observed that, first, the legal framework within which agreements covered by Article 81 EC are made and the classification given to that framework by the various national legal systems are irrelevant as far as the applicability of the Community rules on competition are concerned (BNIC, paragraph 17). Second, it must be borne in mind that, at the hearing, the representatives of the French Republic contended that the disputed agreement could not fall within the scope of joint management by the administration and the farmers’ federations because such management takes the form of representation of the latter on national and Community advisory bodies. Third, and lastly, it must be observed that the alleged inadequacy of government measures to deal with the problems of a particular sector cannot justify the private operators concerned in engaging in practices contrary to the competition rules or in claiming to arrogate to themselves rights which are those of public authorities, either national or Community, in order to substitute their own measures for those of the authorities.

92 Likewise, with regard to the role of the French Minister for Agriculture in the conclusion of the agreement of 24 October 2001, suffice it to note that, according to settled case-law, the fact that conduct on the part of undertakings was known, authorised or even encouraged by national authorities has no bearing, in any event, on the applicability of Article 81 EC (Case T‑7/92 Asia Motor Franceand Others v Commission [1993] ECR II-669, paragraph 71, and Tréfilunion v Commission, paragraph 118).

93 Lastly, the applicants’ argument that the Commission failed to show that the disputed agreement had any effect on imports or on market prices must also be rejected. It has consistently been held that, for the purposes of application of Article 81(1) EC, there is no need to take account of the actual effects of an agreement when it has as its object the prevention, restriction or distortion of competition within the common market. Consequently, it is not necessary to show actual anti-competitive effects where the anti-competitive object of the conduct in question is proved (Limburgse Vinyl Maatschappij and Others v Commission, paragraph 741, and Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 178). As has just been found, the Commission proved that the disputed agreement had the object of restricting competition in the markets in question (see paragraphs 82 to 85 above). The Commission was therefore not required to examine the actual effects of those measures on competition within the common market, particularly in France.

94 Consequently, this complaint must be dismissed.

4. Classification of trade union activities

a) Arguments of the parties

95 The applicants in Case T-245/03 submit that the Commission manifestly erred in its assessment in limiting, so far as they are concerned, the freedom of association in trade unions, recognised by Article 12(1) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1). In particular, the Commission overlooked the specific management functions of French farmers’ unions. The Commission was also seriously imprecise when it demanded that the penalised federations should refrain in future from any agreement, concerted practice or decision which may have an object or effect similar to the infringement alleged against them, whereas a trade union is required to organise concerted action among its members to defend their collective interests.

96 The Commission submits that the fact that the applicants are trade unions does not mean that the competition rules, which are requirements of public policy, do not apply to them.

b) Findings of the Court

97 Pursuant to Article 3(1)(g) and (j) EC, the activities of the Community include at one and the same time a system ensuring undistorted competition in the internal market and a policy in the social sphere. Article 137(1)(f) EC thus states that the Community is to support and complement the activities of the Member States in the field of the representation and collective defence of the interests of workers and employers, and Article 139(1) EC provides that the dialogue between management and labour at Community level may lead to contractual relations. Article 81(1) EC, for its part, prohibits agreements which have as their object or effect the prevention, restriction or distortion of competition within the common market. That article constitutes a fundamental provision which is essential for the accomplishment of the tasks entrusted to the Community and, in particular, for the functioning of the internal market (Case C-126/97 Eco Swiss [1999] ECR I‑3055, paragraph 36).

98 The Court of Justice has held that, although certain restrictions of competition are inherent in collective agreements between organisations representing employers and workers, the social policy objectives pursued by such agreements would be seriously undermined if management and labour were subject to Article 81(1) EC when seeking jointly to adopt measures to improve conditions of work and employment. It therefore follows from an interpretation of the provisions of the Treaty as a whole which is both effective and consistent that agreements concluded in the context of collective negotiations between management and labour in pursuit of such objectives must, by virtue of their nature and purpose, be regarded as falling outside the scope of Article 81(1) EC (Case C-67/96 Albany [1999] ECR I-5751, paragraphs 59 and 60). On the other hand, the Court of Justice has ruled that the latter provision was applicable to inter-trade agreements concluded by organisations representing producers, cooperatives, workers and industries within a body governed by public law (BNIC, paragraphs 3 and 16 to 20, and Case 136/86 BNIC [1987] ECR 4789, paragraphs 3 and 13).

99 In the present case, the Court of First Instance considers that the nature and object of the disputed agreement do not justify its exclusion from the scope of Article 81(1) EC.

100 First, it must be observed that the agreement is not a collective agreement and was not concluded by organisations representing employers and workers. There is no employment relationship at all between farmers and slaughterers because farmers do not work for and under the direction of slaughterers, nor are they incorporated into the slaughterers’ undertakings (see, to that effect, Case C-22/98 Becu and Others [1999] ECR I-5665, paragraph 26). On the other hand, as the Court has already found, farmers may be deemed to be undertakings for the purpose of Article 81(1) EC (see paragraph 53 above). Consequently, the disputed agreement is an inter-trade agreement between two links of the production chain in the beef sector. Second, the agreement does not relate to measures for improving conditions of work and employment, but to the suspension of beef imports and the fixing of minimum prices for certain categories of cows. The object of those measures, in the present case, is to restrict competition in the single market.

101 It follows that, although the applicants in Case T‑245/03 may undoubtedly, as federations of agricultural trade unions, legitimately defend the interests of their members, they cannot in the present case plead the freedom of association in trade unions to justify specific actions which are contrary to Article 81(1) EC.

102 The applicants must also fail in their argument that, by requiring them, in Article 2 of the contested decision, to refrain in the future from any restrictive practice that has the same or an equivalent object or effect, the Commission obstructed them in their mission, as trade unions, of bringing to a successful conclusion concerted action for the defence of their collective interests. By requiring the applicants to refrain from repeating the acts at issue and from adopting any similar measures, the Commission merely indicated the consequences, regarding their future conduct, of the finding of illegality in Article 1 of the contested decision (see, to that effect, Joined Cases T-45/98 and T-47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II-3757, paragraph 311). Furthermore, that requirement is sufficiently specific and is based on the factors which led the Commission to find that the acts at issue were illegal, so that it is clear that the requirement does not relate to the applicants’ general trade union activities.

103 It follows that this complaint must be rejected.

104 Consequently, this plea is dismissed.

B – Second plea in law: manifest errors of assessment and errors of law in assessing the extent and duration of the infringement

105 The applicants dispute the extent and duration of the infringement found by the Commission. First, they submit that the ‘Imports’ part of the agreement of 24 October 2001 came to an end when the Rungis protocol was signed on 31 October 2001. Second, they deny that the written agreement of 24 October 2001 was extended by a verbal agreement with the same object.

1. Preliminary questions

a) The taking into account of local agreements

Arguments of the parties

106 The applicants submit that the Commission could not take agreements concluded at local level by individual unions of farmers and slaughterers as its basis for determining the duration of the infringement alleged against the national federations. They observe that the burden of proof of the duration of an agreement rests with the Commission and that, if the Commission has chosen to rely on direct documentary evidence to establish the infringement and participation in it, the Commission cannot presume that a party continued to adhere to the agreement beyond the point at which it was last shown to have participated in an implementing measure (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraphs 4281 to 4283).

107 The applicants observe that they are not signatories of the local agreements in question because those agreements were concluded by separate legal entities, namely the department farmers’ federations, the department JA or the local unions. The local agreements, particularly those concluded from 30 November 2001, were the exclusive result of action by the latter and depend on their ability to obtain minimum prices from their buyers. On this point the applicants refer to the handwritten notes made by the director of FNB at the meeting of 29 November 2001 (‘negotiate your scales regionally’). The fact that the scale of reference prices was sent by FNB to the department federations which asked for it does not confute this finding because the price scale was sent in the context of local negotiations conducted by those federations, and not in the framework of the national agreement. On 11 December 2001 Mr E.C., one of the directors of FNB, sent the price scale to a department federation, expressly pointing out that it had not been renewed by an agreement. Lastly, the applicants dispute the Commission’s argument that the text of the agreements was taken almost word for word from the national agreement.

108 The applicants add that the signatories to those agreements did not take part in the administrative procedure before the Commission. The applicants were unable to reply in their place and stead. Consequently, it is contrary to the rights of the defence and to Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) that those documents were not left out of consideration.

109 The Commission replies that, in assessing the duration of the infringement, it could properly take account of the numerous local agreements concluded after the agreement of 24 October 2001 was signed. The disputed agreement was mainly implemented in the form of the local agreements, particularly after the written agreement expired. Furthermore, all the documents relating to those agreements were seized at the applicants’ premises, which shows that the national federations closely monitored the local implementation of their national agreement.

Findings of the Court

110 The applicants submit essentially that, for the purpose of determining the duration of the infringement, the Commission was not entitled to take into consideration agreements which were not concluded by them themselves, but by department federations or by local farmers’ unions on one side and the slaughterers’ undertakings on the other.

111 However, it is not disputed that the local federations or farmers’ unions in question were members, whether direct or indirect, of the applicants in Case T‑245/03.

112 It must be observed that, following the signature of the agreement of 24 October 2001, the national farmers’ unions called upon their members to implement the agreement at the local level. Thus, a letter of 25 October 2001 from the applicants in Case T-245/03 to their members, referring to the signature of the agreement on the previous day, states as follows: ‘each of us must be very careful from now on to ensure strict application of the agreement throughout the country … . We ask you also as soon as possible to obtain the signature of undertakings which have not yet signed the agreement. The commitment by undertakings also covers priority given to national supplies’. Likewise, a letter dated 13 December 2001 from the applicants in Case T‑245/03 to their members contains the following passage: ‘… we ask the entire FNSEA network to mobilise … to check the prices with every slaughterer so that our minimum producer guide prices are adhered to. For that purpose, please kindly arrange to contact every slaughterhouse situated in your department.’ Lastly, a letter of 8 November 2001 from the same applicants to their federation members shows that the latter were required to pass to the national federations all the information concerning the measures taken so as to prepare further steps in the union strategy. That information included ‘an exact, detailed list of the undertakings which have not yet signed the price scale or which have signed it but are not applying it’.

113 Therefore it is clear from the file that the applicants in Case T-245/03 encouraged their members to carry out specific acts at slaughterers’ undertakings operating in their respective areas and thus to participate in implementing the disputed agreement. Consequently, the acts of the department federations and local unions formed part of a common strategy with the national federations aimed at ensuring that the measures decided upon at national level were effective throughout France. One of the instruments of that strategy was precisely the conclusion of agreements between the local farmers’ unions and the slaughterers’ undertakings.

114 Thus, a fax sent on 9 November 2001 by the Lower Normandy Fédération régionale des syndicats d’exploitants agricoles (FRSEA) to FNSEA, in response to a questionnaire sent by the latter on 8 November 2001, states as follows: ‘Operations and strategies for applying the price scale: … Formal signature of a regional commitment agreement: observance of the conditions and scale prices by FRSEA (Lower Normandy) and the slaughterers. They have all given a written commitment and have returned the document to us’. Likewise, a fax of 19 November 2001 from the Finistère FDSEA to FNB contains the following passage: ‘Regarding the operations concerning the (minimum) price scale …, verbal agreements have been made with the abattoirs. The written agreement has not yet been returned to us and we have received no complaints from farmers for non-compliance with the price scale.’ Lastly, a fax of 13 November 2001 from the Isère FDSEA to FNSEA and to FNB has annexed to it a standard form of local agreement entitled ‘Application of the national agreement on the minimum price scale’ and contains commitments to adhere to the price scale and to suspend imports temporarily ‘until further national negotiation’.

115 However, the fact that those local agreements were signed by the slaughterers and not by their representative organisations at the national level (including FNICGV and the applicant in Case T-217/03) does not justify leaving those agreements out of consideration in the present case. On this point, the Court considers that the existence of a national agreement between the farmers’ representatives and those of the slaughterers was a decisive factor in overcoming the resistance of the slaughterers’ undertakings to accepting the local agreements submitted to them by the farmers’ representatives.

116 Lastly, it is clear from the file that, contrary to the applicants’ submissions, the local agreements in question often repeated, in substance, the terms of the national agreement. The local agreements frequently reproduce the national agreement word for word (see, for example, the agreement of 31 October 2001 between the Loire FDSEA and the slaughterers’ undertakings of the same department).

117 In the light of the foregoing, the Court considers that those agreements cannot be regarded as the outcome of independent negotiations unconnected with the application of the national agreement. In actual fact, the agreements concluded at the local level were the extension and implementation of the disputed agreement.

118 Therefore, the Court finds that the Commission was right to take the local agreements into consideration for the purpose of assessing the extent and the duration of the infringement attributed to the applicants.

119 In addition, the applicants’ argument that taking the local agreements into consideration amounted to a violation of their rights of defence must be rejected. It must be observed that the documents concerning the local agreements upon which the Commission relied in the contested decision and which were found in the course of investigations in the applicants’ offices formed part of the administrative file. Therefore, the applicants had an opportunity to formulate observations on those documents during the procedure before the Commission.

b) Organisation, selection, quotation and interpretation of the documents in the file

Arguments of the parties

120 The applicants submit that, in the contested decision, the Commission misrepresented the handwritten notes found in the office of the director of FNB, on which the Commission to a large extent relied in order to prove the extent and duration of the disputed agreement. Thus, the Commission provided the applicants with only the extracts which it selected itself, it did not arrange them chronologically and did not gather them together, so that they were mixed together with the other documents in the file. Furthermore, there is too much writing on the pages with the abovementioned notes, so that the notes are disordered and often indecipherable.

121 The applicants also dispute the accuracy or the interpretation of a large number of quotations in the contested decision on the grounds that they are incomplete, taken out of context or erroneous, that in reality they contradict the Commission’s argument, that they are not dated and that the persons attending the meetings to whom reference is made cannot be identified. Lastly, the applicants submit that, in interpreting the documents in the file, the Commission reversed the burden of proof because it presumed wrongful conduct on the applicants’ part and only took into consideration incriminating documents and not exculpatory documents.

122 The Commission observes that in the text of a decision it cannot quote in full all the documents on which it relies and claims that making a selection may be open to criticism only if it misrepresents the documents. The Commission rejects the applicants’ further complaints.

Findings of the Court

123 The applicants do not deny that they had access to all the documents forming part of the Commission’s administrative file (with the single exception of two letters exchanged between the Commission and the Permanent Representation of France to the European Union). In particular, the Commission observed, without being contradicted by the applicants, that they had access to a complete copy of the abovementioned book of handwritten notes of the director of FNB. It follows that the applicants were in a position to identify and to plead all the exculpatory evidence in exoneration contained in the file. In addition, the applicants do not allege that the Commission removed from, or failed to place in, the administrative file any exculpatory documents identified or provided by them.

124 It must also be observed that, in the contested decision, the Commission, like the applicants, often based its findings on extracts from numerous handwritten notes which were found and copied during the investigations at the applicants’ offices. Most of the notes are neither signed nor dated and they are not always very legible. However, it must be observed that the fact that a document is unsigned or undated or is badly written does not impugn its evidentiary value if its origin, probable date and content can be determined with sufficient certainty (see, to that effect, Case T-11/89 Shell v Commission [1992] ECR II-757, paragraph 86).

125 In the present case, the Commission indicated in the contested decision when a document was not dated and was given an approximate date by reference to its content or context. Likewise, where only the initials of those present at meetings were mentioned, the Commission generally deduced from the context who were the persons in question. Lastly, regarding the applicants’ criticism concerning the organisation and classification of the handwritten notes, the Commission explained that the documents in the file were arranged chronologically according to their date of issue or discovery, in the case of documents found during the investigation, the latter documents having been numbered by following the order of the lists which were drawn up.

126 With regard to the applicants’ complaints concerning the use and interpretation of particular items of evidence in the contested decision, they will be examined below in so far as they may call into question the Commission’s findings concerning the extent and duration of the infringement.

2. The attribution to the applicants of an agreement relating to imports

a) Arguments of the parties

127 The applicants claim that the signing of the Rungis protocol on 31 October 2001 led to the part of the national agreement concerning the suspension of imports (which had taken effect on 29 October 2001) coming to an end only two days later, on 31 October 2001. Therefore the ‘Imports’ part of the agreement had no time to exist and could not be attributed to the applicants.

128 The applicants submit that the Commission misrepresented the facts of the present case and manifestly erred in its assessment in finding that the Rungis protocol comprised an agreement aiming to limit the volume of imports. The undertaking given by importers and exporters in the protocol to show ‘solidarity’ does not aim at imports and is only a reaffirmation on the part of FNICGV, at the request of the farmers’ federations, that it would continue supplies on the conditions laid down in the price scale. The applicant in Case T-217/03 also observes that, as it was not a signatory of the Rungis protocol, it was in any case not concerned by the undertaking of ‘solidarity’. Lastly, the statements by the president of FNICGV on the date of signature of the protocol co