Joined Cases T-191/98, T-212/98 to T-214/98





Atlantic Container Line AB and Others

v

Commission of the European Communities



«(Competition – Liner conferences – Regulation (EEC) No 4056/86 – Block exemption – Individual exemption – Collective dominant position – Abuse – Service contracts – Accession to the conference – Alteration of the competition structure – Withdrawal of block exemption – Fines – Rights of the defence)» Judgment of the Court of First Instance (Third Chamber), 30 September 2003

Summary of the Judgment 1.. Procedure – Grounds of judgments – Scope

2.. Competition – Administrative procedure – Statement of objections – Preparatory document capable of amendment by the Commission – Power of the Commission to request further information – Limits

3.. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence

(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Art. 4) 4.. Competition – Administrative procedure – Commission decision finding an infringement – Evidence which may be used

5.. Competition – Administrative procedure – Access to the file – Obligation on the Commission to adduce inculpatory evidence

6.. Competition – Administrative procedure – Commission decision finding an infringement – Exclusion of evidence in documents not disclosed to the parties – Consequences – Relevant objection may not be proved by reference to those documents

7.. Competition – Administrative procedure – Commission decision finding an infringement – Decision not identical to the statement of objections – Infringement of the rights of the defence – Condition – Demonstration by the undertaking concerned that further complaints have been raised

8.. Competition – Administrative procedure – Observance of the rights of the defence – Introduction of new allegations at the stage of the decision finding the infringement – Sanction – Condition

9.. Procedure – Application initiating proceedings – Procedural requirements – Subject-matter of the dispute to be indicated – Pleas in law relied upon to be briefly stated – Clear statement of the pleas in law

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC); Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the Court of First Instance, Art. 44(1)(c) and (d)) 10.. Competition – Administrative procedure – Access to the file – Purpose – Observance of the rights of the defence – Scope – Inculpatory evidence – Exclusion of evidence in documents not disclosed – Exculpatory evidence – Assessment of the utility of disclosure by the Commission alone – Not permissible

(EC Treaty, Arts 85(1) and 86 (now Arts 81(1) EC and 82 EC); Council Regulations Nos 17, 1017/68 and 4056/86) 11.. Competition – Administrative procedure – Access to the file – Documents not contained in the investigation file – Documents which may be of use to the defence – Infringement of the rights of the defence – Conditions

12.. Competition – Administrative procedure – Access to the file – Documents not contained in the investigation file and which the Commission does not intend to use as inculpatory evidence – Commission's obligation to make those documents accessible to the parties on its own initiative – None

13.. Competition – Administrative procedure – Access to the file – Limits – Undertaking in a dominant position and able to adopt retaliatory measures towards Commission informants

14.. Actions for annulment – Actionable measures – Definition – Statement of objections – Exclusion

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC) 15.. Competition – Administrative procedure – Communication by the Commission to the undertakings concerned of a large number of requests for information after the adoption of a statement of objections – Limit of that burden – Observance of the rights of the defence

16.. Transport – Maritime transport – Competition rules – Block exemptions – Strict interpretation – Services which are not maritime transport services within the scope of Regulation No 4056/86 – Exclusion

(EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulation No 4056/86, Arts 1(2) and 3) 17.. Competition – Community rules – Application by reference to the national practices of the Member States or of certain non-member States – Not permissible

(EC Treaty, Art. 85 (now Art. 81 EC)) 18.. Competition – Dominant position – Collective dominant position – Definition – Liner conference

(EC Treaty, Art. 86 (now Art. 82 EC); Council Regulation No 4056/86, Art. 1(3)(b)) 19.. Competition – Dominant position – Collective dominant position – Existence – Means of identification – Taking into consideration an agreement even though prohibited by Article 85(1) of the Treaty (now Article 81(1) EC)

(EC Treaty, Arts 85(1) and 86 (now Arts 81(1) EC and 82 EC); Council Regulation No 4056/86, Art. 1(3)(b)) 20.. Competition – Dominant position – Collective dominant position – Definition – Requirement that all competition between undertakings be eliminated – None

(EC Treaty, Art. 86 (now Art. 82 EC)) 21.. Competition – Dominant position – Collective dominant position – Definition – Liner conference – Exclusion in the case of substantial internal competition

(EC Treaty, Art. 86 (now Art. 82 EC)) 22.. Competition – Dominant position – Collective dominant position – Definition – Liner conference – Irrelevance, in principle, of other forms of competition when faced with a common price strategy

(EC Treaty, Art. 86 (now Art. 82 EC)) 23.. Competition – Dominant position – Relevant market – Delimitation – Criteria

(EC Treaty, Art. 86 (now Art. 82 EC)) 24.. Competition – Dominant position – Existence – Holding of extremely large market shares – Generally sufficient evidence

(EC Treaty, Art. 86 (now Art. 82 EC)) 25.. Competition – Dominant position – Meaning – Presumption of dominance when holding more than half of the market share

(EC Treaty, Art. 86 (now Art. 82 EC)) 26.. Competition – Maritime transport – Dominant position – Holding of large market shares – Generally sufficient evidence

(EC Treaty, Art. 86 (now Art. 82 EC); Council Regulation No 4056/86, Art. 8) 27.. Competition – Dominant position – Meaning – Ability to impose regular price increases – Not an essential factor

(EC Treaty, Art. 86 (now Art. 82 EC)) 28.. Competition – Dominant position – Abuse – Exemption – Exclusion – Obligations incumbent upon dominant undertakings – Ability of the dominant undertaking to protect its commercial interests provided that it does not reinforce its dominant position or abuse it

(EC Treaty, Art. 86 (now Art. 82 EC)) 29.. Competition – Community rules – Scope ratione materiae – Conduct imposed by State measures – Precluded – Conditions

(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC)) 30.. Competition – Dominant position – Abuse – Meaning – Creation or strengthening of a dominant position – Liner conference – Acceptance of new members – Factor capable of constituting an abuse

(EC Treaty, Art. 86 (now Art. 82 EC)) 31.. Transport – Maritime transport – Competition rules – Block exemptions – Regulation No 4056/86 on maritime transport – Strict interpretation

(EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulation No 4056/86, Arts 1(3)(b) and 3) 32.. Competition – Agreements, decisions and concerted practices – Notification – Effects – Benefit of immunity from fines – Need for express provision – Immunity not provided for in Regulation No 1017/68

(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC); Council Regulation No 1017/68) 33.. Competition – Agreements, decisions and concerted practices – Notification – Effects – Immunity from fines under the second paragraph of Article 19(4) of Regulation No 4056/86 on maritime transport – Scope – Infringement of Articles 85 and 86 of the Treaty (now Articles 81 EC and 82 EC)

(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC); Council Regulation No 4056/86, Art. 19(2)(a) and 4(2)) 34.. Competition – Fines – Amount – Determination thereof – Division of an overall amount between different groups of undertakings constituted on the basis of size of undertakings which participated in the infringement – Whether permissible – Conditions

(Council Regulation No 17, Art. 15(2)) 35.. Competition – Fines – Decision imposing fines – Obligation to state reasons – Scope – Statement of the factors by which the Commission assessed the gravity and duration of the infringement – Sufficient statement

(EC Treaty, Art. 190 (now Art. 253 EC); Council Regulation No 17, Art. 15(2)) 36.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringement – Undertaking a member of a liner conference – Assessment on the basis of total turnover of the undertaking – Whether permissible – Taking into account of other factors specific to each member undertaking – No obligation

(Council Regulations Nos 17, Art. 15(2) and 4056/86, Art. 19) 37.. Competition – Fines – Amount – Determination – Commission's margin of discretion – Economic operators precluded from relying on a legitimate expectation that an existing situation will be maintained – Raising of the general level of fines – Whether permissible – Conditions

(Council Regulations Nos 17, 1017/68 and 4056/86) 38.. Competition – Fines – Amount – Determination – Mitigating circumstances – Notification of an agreement which facilitated the finding that the practices stipulated by that agreement were abusive

(Council Regulation No 17) 39.. Competition – Dominant position – Abuse – Meaning – Practices arising in contracts for services between a shipper and a liner conference or a carrier

(EC Treaty, Art. 86 (now Art. 82 EC)) 40.. Non-contractual liability – Conditions – Damage – Causal link – Burden of proof

(EC Treaty, Arts 178 and 215 (now Art. 235 EC and 288 EC)) 1. The requirement for the Court of First Instance to give reasons for its decisions must not be interpreted as meaning that it is obliged to respond in detail to each argument advanced by the applicant, particularly if the argument is not sufficiently clear and precise and is not supported by adequate evidence. see para. 90 2. The statement of objections is a preliminary document which may be amended by the Commission, in particular so as to take account of the response to the statement of objections, there is no requirement that the Commission must have finally completed its administrative investigation by the time it adopts the statement of objections. Consequently, the Commission cannot be restricted as to the questions it seeks to raise in the requests for information sent after the statement of objections, provided however that (i) in accordance with the applicable regulations, those questions enable it to obtain information necessary for the investigation and (ii) the Commission gives the undertakings concerned the opportunity to comment on fresh matters of fact or law arising from the responses of the undertakings concerned to those questions. see para. 122 3. The statement of objections must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. Due observance of the rights of the defence in a proceeding in which sanctions such as those in question may be imposed for infringement of the competition rules requires that the undertakings and associations of undertakings concerned must have been afforded the opportunity during the administrative procedure to make known their views effectively on the truth and relevance of the facts and circumstances alleged and objections raised by the Commission. That requirement is satisfied if the decision does not allege that those concerned have committed infringements other than those referred to in the notice of complaints and only takes into consideration facts on which they have had the opportunity of making known their views. It follows that the Commission may adopt only objections on which those undertakings and associations have had the opportunity to make known their views. The Commission must however be permitted in its decision to take account of the responses of the undertakings concerned to the statement of objections. It must be able not only to accept or reject the arguments of the undertakings concerned, but also to carry out its own assessment of the facts put forward by those undertakings in order either to abandon such complaints as have been shown to be unfounded or to supplement and redraft its arguments, both in fact and in law, in support of the complaints which it maintains Taking account of an argument put forward by an undertaking during the administrative procedure, without having given it the opportunity to express an opinion in that respect before the adoption of the final decision, cannot as such constitute an infringement of defence rights, especially where taking account of the argument does not alter the nature of the complaints against it. see paras 138, 152, 191, 194, 314 4. Regard for the rights of the defence requires that an undertaking to which the Commission addresses a decision in respect of an infringement of the competition rules shall have been able to make known effectively its point of view on the documents relied upon by the Commission in making the findings on which its decision is based. Consequently, in principle only the documents cited or mentioned in the statement of objections are admissible evidence as against the addressee of that statement. Moreover, documents appended to the statement of objections but not mentioned therein may be used in the decision as against the addressee of the statement of objections only if that person could reasonably infer from it the conclusions which the Commission intended to draw therefrom. see paras 162, 171, 287 5. In competition cases, the rights of the defence are not infringed by the Commission's failure to disclose to an applicant undertaking a document which might contain exculpatory evidence where that document emanates from that applicant or was manifestly in its possession during the administrative procedure. However, that is not the case in respect of inculpatory documents. Whilst it is for the applicants to put forward upon their own initiative any exculpatory document, it is the Commission which bears the burden of proving infringements and must adduce evidence sufficient to establish the facts constituting the infringement. see para. 172 6. Documents which, although produced by the undertakings in question or which were clearly in their possession during the administrative procedure, are not referred to in the statement of objections or appended thereto, must be ruled out as evidence of infringement of the competition rules where those undertakings could not reasonably foresee the conclusions which the Commission intended to draw therefrom; far from entailing the annulment of the entire decision, the exclusion of those documents is significant only if the objection made by the Commission in that respect could be proved only by reference to those documents. see paras 186-188 7. In asserting in a competition case that there was an infringement of the rights of the defence with regard to the complaints made in the Commission's decision finding that they had committed infringements, it is not sufficient for the undertakings to point to the mere existence of differences between the statement of objections and that decision without explaining precisely and specifically why each of those differences constitutes a new complaint upon which they were not given the opportunity to comment. An infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case, since it depends essentially on the objections raised by the Commission in order to prove the infringement which the undertakings concerned are alleged to have committed. see paras 192, 396 8. In the context of the administrative procedure in a competition matter, in any event, even if a Commission decision contains new allegations of fact or law on which the undertakings concerned have not been given the opportunity to comment, the defect will only entail its annulment in that respect if those allegations cannot be substantiated to the requisite legal standard on the basis of other evidence in the decision on which those undertakings were given the opportunity to comment. see para. 196 9. Under the first paragraph of Article 21 of the Statute of the Court of Justice, applicable to proceedings before the Court of First Instance by virtue of the first paragraph of Article 53 thereof, and under Article 44(1)(c) and (d) of the Rules of Procedure of the Court of First Instance, the application must contain, amongst other things, the subject-matter of the dispute, the forms of order sought and a brief statement of the pleas. Those particulars must be sufficiently clear and precise to enable the defendant to prepare the defence, and the Court of First Instance to rule on the application without further information, as the case may be. In order to guarantee respect for the adversarial system, legal certainty and sound administration of justice it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst there is no restriction on the length of the pleadings or on the number of documents which may be lodged by applicants in support of an action for annulment under Article 173 of the Treaty (now, after amendment, Article 230 EC), the burden is nevertheless upon applicants, having regard in particular to the formal requirements, to confine their application to a reasonable length and, in any event, to set out clearly the pleas they raise in support of the form of order they are seeking as distinct from the points of fact and law put forward in support of that form of order which are not in themselves pleas. see paras 281-282, 1637 10. The right of access to the file in competition cases is intended to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission's file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections. Access to the file is thus one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard can be exercised effectively. The Commission thus has an obligation to make available to the undertakings involved in proceedings under Article 85(1) (now Article 18(1) EC) or Article 86 of the Treaty (now Article 82 EC) all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved. With regard to inculpatory evidence, observance of the rights of the defence requires that the undertaking concerned must have been able to express its views effectively on the evidence ultimately used by the Commission to support its allegation of infringement. The documents for which that was not the case must be discarded as evidence. With regard to exculpatory evidence, in the inter partes procedure laid down by the regulations on the application of Articles 85 and 86 of the Treaty, in particular Regulations Nos 17, 1017/68 and 4056/86, it cannot be for the Commission alone to decide which documents are of use for the defence of the parties involved in a proceeding for infringement of the competition rules. In particular, having regard to the general principle of equality of arms, it is not acceptable for the Commission alone to decide whether or not to use against the applicants documents to which they did not have access, so that they were unable to decide whether or not to use them in their defence. see paras 334-335, 337-339, 351, 354, 376, 385 11. Where it is established that during the administrative procedure in competition proceedings the Commission did not disclose to the applicants documents which might have contained exculpatory evidence, there will be an infringement of the rights of the defence only if it is shown that the administrative procedure would have had a different outcome if the applicant had had access to the documents in question during that procedure. Where those documents are in the Commission's investigation file, such an infringement of the rights of the defence is unconnected with the manner in which the undertaking concerned conducted itself during the administrative procedure. By contrast, where the exculpatory documents in question are not in the Commission's investigation file, an infringement of the rights of the defence may be found only if the applicant had expressly asked the Commission for access to those documents. If the applicant does not do so, his right in that respect is barred in any action for annulment brought against the final decision. see paras 340, 430 12. In determining whether, during the administrative procedure in competition proceedings, the right of access to inculpatory evidence in the file has been observed, the relevant question is not why the Commission raised a complaint or what underlies that complaint but solely whether the complaint in the final decision is based on inculpatory evidence which was disclosed to the undertakings which are the subject of the infringement procedure. The right of access to the file cannot therefore be understood as intended to enable the undertakings concerned to examine the process by which the Commission arrived at its conclusions. Since the right of access to the file is not an end in itself, but is intended to protect the rights of the defence, the Commission is under no obligation to disclose to the undertakings concerned the inculpatory evidence upon which it does not rely in its decision in support of the complaints. see para. 377 13. In a proceeding seeking to establish infringements of the Treaty's competition rules, the Commission may refuse to disclose internal documents and access to the correspondence with third parties by reason of its confidential nature, since an undertaking to which a statement of objections has been addressed, and which occupies a dominant position in the market, may adopt retaliatory measures against a competing undertaking, a supplier or a customer who has collaborated in the investigation carried out by the Commission. see paras 393-394 14. The review of legality carried out by the Court in the context of an action for annulment on the basis of Article 173 of the Treaty (now, after amendment, Article 230 EC) is not of the statement of objections but of the final decision adopted thereafter. The statement of objections may not in any case be the subject of an action for annulment. Therefore, even if the Commission had shown in the statement of objections that it was prejudiced against the applicant undertakings, such prejudice could only vitiate the contested decision if it was manifested in that decision. see para. 414 15. The Commission's sending of a large number of requests for information after the adoption of a statement of objections may affect the effective exercise by the undertakings concerned of their right to comment on the complaints made against them. It is for the Commission to ensure that the administrative procedure is conducted with due care. Requests for information must comply with the principle of proportionality and the obligation imposed on an undertaking to supply information should not be a burden on that undertaking which is disproportionate to the needs of the inquiry. Therefore it is necessary to consider whether in the present case the sending of the relevant requests for information imposed such a burden on those undertakings as to infringe the rights of the defence. It is necessary to take account of the content of those requests for information, the context in which they were sent and their purpose. see paras 418-419 16. Having regard to the general principle laid down by Article 85(1) of the Treaty (now Article 81(1) EC) that agreements restricting competition are prohibited, provisions derogating therefrom in a regulation conferring block exemption must, by their nature, be strictly interpreted. Since the scope of Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty (now Article 82 EC) to maritime transport is restricted by Article 1(2) thereof to maritime transport services from or to ports, the block exemption from that restriction provided for under Article 3 of that regulation cannot be extended to services which, even if they could be considered to be ancillary to or necessary for maritime transport from or to ports, are not maritime transport services as such falling within the scope of Regulation No 4056/86. That is all the more so where those services constitute a separate market on which the freight forwarders are in competition with other economic operators. see para. 568 17. National practices, even if common to all the Member States, cannot be allowed to prevail in the application of the competition rules set out in the Treaty. A fortiori, therefore, the practices of certain non-member States cannot dictate the application of Community law. see para. 569 18. Article 86 of the Treaty (now Article 82 EC) is capable of applying to situations in which several undertakings together hold a dominant position on the relevant market. In order to conclude that such a dominant position exists, the undertakings concerned must be sufficiently linked between themselves to adopt the same line of action on the market. On the other hand, there is no need to show that those undertakings have in fact all adopted that line of action in all circumstances. In that regard, it is necessary to examine the links or factors of economic correlation between the undertakings concerned and to ascertain whether those links or factors allow them to act together independently of their competitors, their customers and consumers. That is, in principle, the case with shipping companies which, as a result of the close links between them within a liner conference within the meaning of Article 1(3)(b) of Regulation No 4056/86 are, together, as a single entity which presents itself as such on the market vis-à-vis users and competitors, capable of implementing practices in the relevant market such as to constitute a single line of action. Moreover, the minimal nature of the market share of an undertaking or of its turnover on the relevant market matters little. Provided that the links serving to justify the collective assessment of the position of the liner conference parties result from their membership of that conference, the position of each party to that conference must, by the simple fact of that membership, be assessed with that of the other parties to the conference, since by that membership the undertaking has bound itself, as regards its conduct on a specific market, to the other parties which have joined the conference, in such a way that they present themselves on the market as a collective entity vis-à-vis their competitors, their trading partners and consumers. see paras 594-602, 629-630, 652 19. The fact that an agreement is prohibited by Article 85(1) of the Treaty (now Article 81(1) EC) does not prevent the Commission from taking such an agreement into consideration in order to conclude, in the context of the application of Article 86 of the Treaty (now Article 82 EC), that the position of the undertakings concerned on the relevant market is a collective one. An agreement, decision or concerted practice (whether or not covered by an exemption under Article 85(3)) may, where it is implemented, result in the undertakings concerned being so linked as to their conduct on a particular market that they present themselves on that market as a collective entity vis-à-vis their competitors, their trading partners and consumers. The existence of a collective dominant position may therefore flow from the nature of the terms of an agreement, from the way in which it is implemented and, consequently, from the links or factors which give rise to a connection between undertakings which result from it. That applies to a liner conference within the meaning of Article 1(3)(b) of Regulation No 4056/86. see para. 610 20. Although the possibility that one undertaking may align its conduct with that of one or more competitors necessarily implies that competition between them is significantly restricted, such a possibility to align competitive conduct in no way implies that competition between the undertakings concerned is completely eliminated. Furthermore, the existence of a collective dominant position within the meaning of Article 86 of the Treaty (now Article 82 EC) presupposes the existence of economic links between two or more economic entities which are, by definition, independent and, accordingly, capable of competing with one another, and not the existence between the undertakings concerned of institutional links comparable to those existing between a parent company and its subsidiaries. Consequently, although the lack of effective competition between operators alleged to be members of a dominant oligopoly is a significant factor among those that must play a role in determining the existence of a collective dominant position, there can be no requirement, for the purpose of establishing the existence of such a dominant position, that the elimination of effective competition must result in the elimination of all competition between the undertakings concerned. see paras 653-654 21. Significant internal competition within a liner conference may be capable of showing that in spite of the various links or factors of correlation existing between the members of a liner conference they are not in a position to adopt the same course of conduct on the market such as to give third parties the impression that they are a single entity and thus justify a collective assessment of their position on the market under Article 86 of the Treaty (now Article 82 EC). see para. 695 22. The existence of non-price competition between the members of a liner conference, such as competition regarding the quality of service provided, is not in principle sufficient to negate the existence of a collective dominant position based on links inferred from their common strategy on price-setting, unless the extent and intensity of those alternative forms of competition is such as to preclude reasonable reliance on their common pricing policy as the basis for establishing a single market entity. see para. 714 23. In assessing whether an undertaking is in a dominant position in a market, the market to be taken into consideration comprises all the products which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products. In order to be able to be regarded as a separate market, the products in question must be distinguishable not only by the mere fact of their use but also by specific production characteristics which render them particularly appropriate for that purpose. see paras 798-799, 828 24. Although the existence of a dominant position may be the outcome of a number of factors which, considered separately, would not necessarily be determinative, in the absence of exceptional circumstances extremely large market shares are in themselves evidence of the existence of a dominant position. A market share of between 70% and 80% is in itself a clear indication of the existence of a dominant position. see para. 907 25. The concept of a dominant position relates to a position of economic strength which enables the entity holding that position to prevent effective competition on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of consumers. An entity which holds more than 50% of the market, whether it is an individual entity or a collective entity, is capable of enjoying such independence. see paras 931-932 26. Although eliminating competition may preclude the application of the block exemption provided for by Regulation No 4056/86, the mere holding of a dominant position has no effect in that regard. As the concept of eliminating competition is narrower than that of the existence or acquisition of a dominant position, an undertaking holding such a position is capable of benefiting from an exemption. Thus, under Article 8 of Regulation No 4056/86, it is only where a liner conference abuses its dominant position that the Commission may withdraw the benefit of the block exemption provided for in that regulation. Furthermore, unlike the possibility of eliminating competition, the mere holding of a dominant position is not in itself prohibited by the competition rules laid down in the Treaty, since only the abuse of that position is prohibited. Thus, even in the area of maritime transport, the fact of holding a high market share is capable of indicating the existence of a dominant position within the meaning of Article 86 of the Treaty (now Article 82 EC). see paras 939-940 27. Although the ability to impose regular price increases unquestionably constitutes a factor capable of pointing to the existence of a dominant position, it is by no means an indispensable factor, as the independence which a dominant undertaking enjoys in pricing matters has more to do with the ability to set prices without having to take account of the reaction of competitors, customers and suppliers than with the ability to increase prices. see para. 1084 28. Unlike Article 85 of the Treaty (now Article 81 EC), Article 86 of the Treaty (now Article 82 EC) does not allow undertakings in a dominant position to seek to obtain exemption for their abusive practices. Furthermore, dominant undertakings have a special responsibility not to allow their conduct to impair genuine undistorted competition on the common market. Consequently, there can be no exceptions to the prohibition of abuse by dominant undertakings. The fact that an undertaking is in a dominant position cannot disentitle it from protecting its own commercial interests if they are attacked, and that such an undertaking must be conceded the right to take such reasonable steps as it deems appropriate to protect its interests, provided however that the purpose of such behaviour is not to strengthen this dominant position and abuse it. It follows therefore that a dominant undertaking may seek to rely on grounds to justify the practices it adopts, provided that it does not result in creating exemptions. see paras 1109, 1113-1114, 1124 29. Articles 85 and 86 of the Treaty (now Articles 81 EC and 82 EC) apply only to anti-competitive conduct in which undertakings engage on their own initiative. If anti-competitive conduct is required of undertakings by national law or if the latter creates a legal framework eliminating any possibility of competitive conduct on their part, Articles 85 and 86 of the Treaty do not apply. In such a situation, the restriction of competition is not attributable, as is implied by those provisions, to the autonomous conduct of the undertakings. Articles 85 and 86 of the Treaty may apply, by contrast, if it is found that the national legislation does not preclude undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition. Consequently, if a national law merely allows, encourages or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to the Treaty competition rules. see para. 1130 30. Abuse of a dominant position within the meaning of Article 86 of the Treaty (now Article 82 EC) may occur if an undertaking in a dominant position strengthens that position in such a way that the degree of dominance reached substantially fetters competition, so that only undertakings remain in the market whose behaviour depends on the dominant one. It is thus possible in certain circumstances, as the Commission rightly points out in its pleadings, for the fact that a liner conference in a dominant position accepts new members to constitute an abuse in itself. see para. 1262 31. Having regard to the general principle of the prohibition of agreements restricting competition laid down by Article 85(1) of the Treaty (now Article 81(1) EC), provisions derogating therefrom in an exempting regulation must, by their nature, be strictly interpreted. That applies a fortiori to the provisions of Regulation No 4056/86 by virtue of its unlimited duration and the exceptional nature of the restrictions on competition authorised, so that the block exemption provided for by Article 3 of Regulation No 4056/86 cannot be interpreted broadly and progressively so as to cover all the agreements which shipping companies deem it useful, or even necessary, to adopt in order to adapt to market conditions. Furthermore, it is apparent from that provision that in order to qualify for the block exemption the agreements fixing rates and conditions of carriage between the members of a maritime conference must establish uniform or common freight rates within the meaning of Article 1(3)(b) of the regulation, which requires the application of the same freight rate for all conference members vis-à-vis all shippers. The block exemption does not therefore apply to agreements between carriers providing for a variable scheme of tariffs. see paras 1381-1382, 1384 32. Since Regulation No 1017/68 applying rules of competition to transport by rail, road and inland waterway does not provide any immunity from fines in respect of notified agreements falling within its scope, whether fines imposed under Article 85 (now Article 81 EC) or under Article 86 (now Article 82 EC), a notification cannot confer on the undertaking notifying those agreements any immunity whatsoever. see paras 1433-1434 33. The relevant terms of the second subparagraph of Article 19(4) of Regulation No 4056/86 providing for immunity from fines in the case of notification must be strictly interpreted and cannot be interpreted so that its effects extend to cases not expressly provided for. However, the immunity provided for by the second paragraph of Article 19(4) of that regulation refers to the fines laid down not only for taking part in an agreement restricting competition, but also for abuses. Article 19(2)(a) expressly refers to fines for infringement of Article 85(1) or Article 86 of the Treaty (now Articles 81(1) EC and 82 EC). It thus follows that that reference to the express wording of Article 19(4) of Regulation No 4056/86, far from restricting immunity from fines to infringements of Article 85 of the Treaty, expressly provides on the contrary that abuses under Article 86 of the Treaty may also qualify for that immunity. see paras 1441-1443 34. The Commission did not exceed its powers regarding the imposition of fines by dividing the undertakings which participated in the same infringement of the competition rules into groups according to their size, since by ensuring that undertakings in the groups of larger undertakings incur higher fines than those imposed on undertakings in the groups of the smaller undertakings, that division contributes to the aim of penalising the large undertakings more severely. The Commission is not required, when determining fines on the basis of the gravity of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover. see paras 1518-1519 35. In determining the amount of the fine for infringement of the competition rules the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. see paras 1521, 1532, 1558 36. The gravity of infringements of the competition rules is to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up. The factors on the basis of which the gravity of an infringement may be assessed may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking. The Commission is entitled when determining the size of the undertakings concerned to refer to the total turnover rather than to their turnover on the relevant market(s). Indeed the total turnover of the undertaking concerned constitutes an indication, albeit approximate and imperfect, of its size and economic power. Thus, in the maritime transport sector, in taking the total turnover of the undertaking concerned for maritime transport of containerised cargo as the basis for calculating the fines, the Commission does not infringe Article 19 of Regulation No 4056/86. It is clear from the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 that, whilst the gravity of the infringement is initially assessed on the basis of the particular characteristics of the infringement, such as its nature and impact on the market, that assessment is subsequently adjusted according to the individual circumstances of the undertaking, so that the Commission takes into consideration, besides the size and capacities of the undertakings, both aggravating and mitigating circumstances, as the case may be. In those circumstances, the Commission was entitled when setting the fines on the basis of the gravity of the infringement to disregard the factors peculiar to each participant in a liner conference other than their total turnover from maritime transport of containerised cargo. see paras 1525, 1528, 1571 37. As regards the setting of fines for infringements of the competition rules, the Commission exercises its powers within the limits of the discretion conferred on it by Regulation No 17, Regulation No 1017/68 and Regulation No 4056/86. Traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretion will be maintained. Moreover, the Commission is entitled to raise the general level of fines, within the limits laid down in Regulation No 17, if that is necessary to ensure the implementation of the Community competition policy. see paras 1567, 1568 38. The notification of an agreement which enabled the Commission to establish more easily that the practices provided for in that agreement relating to service contracts were an abuse, and thus facilitated the Commission's task of establishing infringements of the Community competition rules and bringing them to an end which, according to the case-law, is a factor justifying a reduction in the fine. see para. 1607 39. The abuse resulting from the practices on service contracts by which a shipper makes a commitment to provide a certain minimum quantity of cargo over a fixed period and the conference or carrier commits to a certain rate and to a defined service level does not constitute a classic abuse within the meaning of Article 86 of the Treaty (now Article 82 EC). Thus, the practices of shipping companies which are members of a liner conference which restrict the availability and content of service contracts, but which in no way deprived shippers of the possibility to have their cargo carried by conference members on the trade in question, whether under service contracts or at tariff rates can certainly not be likened to cases of an outright refusal to supply, which have already been held to be abusive by the case-law relating to, inter alia, ceasing to deliver to an existing customer where there is nothing unusual about that customer's orders, refusing to supply a customer so as to reserve for oneself a derivative market or the refusal to supply a customer so as to protect exclusive rights. see para. 1618 40. It is first and foremost for the party seeking to establish the Community's liability to adduce proof as to the existence or extent of the damage it alleges and to establish the causal link between that damage and the conduct complained of on the part of the Community institutions. see para. 1638

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

30 September 2003 ( )

« Competition - Liner conferences - Regulation (EEC) No 4056/86 - Block exemption - Individual exemption - Collective dominant position - Abuse - Service contracts - Accession to the conference - Alteration of the competition structure - Withdrawal of block exemption - Fines - Rights of the defence»

In Joined Cases T-191/98 and T-212/98 to T-214/98,

Atlantic Container Line AB, established in Gothenburg (Sweden),

Cho Yang Shipping Co. Ltd, established in Seoul (South Korea),

DSR-Senator Lines GmbH, established in Bremen (Germany),

Hanjin Shipping Co. Ltd, established in Seoul (South Korea),

Hapag-Lloyd AG, established in Hamburg (Germany),

Hyundai Merchant Marine Co. Ltd, established in Seoul (South Korea),

A.P. Møller-Mærsk Line, established in Copenhagen (Denmark),

Mediterranean Shipping Co. SA, established in Geneva (Switzerland),

Orient Overseas Container Line (UK) Ltd, established in London (United Kingdom),

Polish Ocean Lines (POL), established in Gdynia (Poland),

P & O Nedlloyd BV, established in London (United Kingdom),

Sea-Land Service Inc., established in Jersey City, New Jersey (United States of America),

Neptune Orient Lines Ltd, established in Singapore (Singapore),

Nippon Yusen Kaisha, established in Tokyo (Japan),

Transportación Marítima Mexicana SA de CV, established in Mexico City (Mexico),

Tecomar SA de CV, established in Mexico City (Mexico),

represented by J. Pheasant, N. Bromfield, M. Levitt, D. Waelbroeck, U. Zinsmeister, A. Bentley, C. Thomas, A. Nourry, M. Van Kerckhove, P. Ruttley and A. Merckx, lawyers, with an address for service in Luxembourg,

applicants,

v

Commission of the European Communities, represented by R. Lyal, acting as Agent, and J. Flynn, Barrister, with an address for service in Luxembourg,

defendant,

supported by

European Council of Transport Users ASBL, represented by M. Clough QC, Solicitor-Advocate, with an address for service in Luxembourg,

intervener,

APPLICATION for the annulment of Commission Decision 1999/243/EC of 16 September 1998 relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty (Case No IV/35.134 - Trans-Atlantic Conference Agreement) (OJ 1999 L 95, p. 1),partie requérante,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),





composed of: K. Lenaerts, President, J. Azizi and M. Jaeger, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 26 and 27 March 2003,

gives the following

Judgment

Legal background

1 Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87), initially applied to all activities covered by the EEC Treaty. However, in view of the common transport policy and the distinctive features of the transport sector, it proved necessary to lay down rules governing competition different from those applicable for other sectors of the economy, and the Council therefore adopted Regulation No 141 of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291).

2 On 19 July 1968 the Council adopted Regulation (EEC) No 1017/68 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302).

3 In accordance with Article 2 of Regulation No 1017/68, agreements, decisions and concerted practices which, for the three modes of transport just mentioned, are liable to affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market are prohibited. The prohibition applies inter alia to agreements, decisions and concerted practices which consist in:

(a) directly or indirectly fixing transport rates and conditions or any other trading conditions;

(b) limiting or controlling the supply of transport, markets, technical development or investment;

(c) sharing transport markets;

(d) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e) making the conclusion of contracts subject to acceptance by the other parties of additional obligations which, by their nature or according to commercial usage, have no connection with the provision of transport services.

4 Article 5 of Regulation No 1017/68 provides for the exemption of agreements, decisions and concerted practices which contribute towards improving the quality of transport services, or promoting greater continuity and stability in the satisfaction of transport needs on markets where supply and demand are subject to considerable temporal fluctuation, or increasing productivity, or furthering technical or economic progress, if the interests of transport users are taken into account and provided that they do not impose on transport undertakings any restrictions not essential to the attainment of those objectives and do not make it possible for such undertakings to eliminate competition in respect of a substantial part of the transport market concerned.

5 On 22 December 1986 the Council adopted Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4).

6 Article 3 of Regulation No 4056/86 provides that:

Agreements, decisions and concerted practices of all or part of the members of one or more liner conferences are hereby exempted from the prohibition in Article 85(1) of the Treaty, subject to the condition imposed by Article 4 of this Regulation, when they have as their objective the fixing of rates and conditions of carriage, and, as the case may be, one or more of the following objectives:

(a) the coordination of shipping timetables, sailing dates or dates of calls;

(b) the determination of the frequency of sailings or calls;

(c) the coordination or allocation of sailings or calls among members of the conference;

(d) the regulation of the carrying capacity offered by each member;

(e) the allocation of cargo or revenue among members.

7 A liner conference is defined in Article 1(3)(b) of Regulation No 4056/86 as a group of two or more vessel-operating carriers which provides international liner services for the carriage of cargo on a particular route or routes within specified geographical limits and which has an agreement or arrangement, whatever its nature, within the framework of which they operate under uniform or common freight rates and any other agreed conditions with respect to the provision of liner services.

8 The eighth recital in the preamble to Regulation No 4056/86 states in this connection that:

... provision should be made for block exemption of liner conferences; ... liner conferences have a stabilising effect, assuring shippers of reliable services; ... they contribute generally to providing adequate efficient scheduled maritime transport services and give fair consideration to the interests of users; ... such results cannot be obtained without the cooperation that shipping companies promote within conferences in relation to rates and, where appropriate, availability of capacity or allocation of cargo for shipment, and income; ... in most cases conferences continue to be subject to effective competition from both non-conference scheduled services and, in certain circumstances, from tramp services and from other modes of transport; ... the mobility of fleets, which is a characteristic feature of the structure of availability in the shipping field, subjects conferences to constant competition which they are unable as a rule to eliminate as far as a substantial proportion of the shipping services in question is concerned.

9 In order to prevent liner conferences engaging in practices incompatible with Article 85(3) of the Treaty (now Article 81(3) EC) and, in particular, restricting competition in a way that is not indispensable for attaining the objectives which justify any exemption granted, Regulation No 4056/86 attaches a number of conditions and obligations to block exemption. Article 4 provides that exemption is granted subject to the absolute condition that the agreement in question does not cause detriment to certain ports, transport users or carriers as a result of the application of differential terms, failing which the agreement, or the relevant part of it, will be automatically void. Article 5 of Regulation No 4056/86 attaches obligations to exemption which relate, inter alia, to loyalty agreements, services not covered by freight charges and the availability of tariffs.

10 Furthermore, the 13th recital in the preamble states that there can be no exemption if the conditions set out in Article 85(3) are not satisfied; ... the Commission must therefore have power to take ... appropriate measures where an agreement or concerted practice proves, owing to special circumstances, to have certain effects incompatible with that article.

11 To that end, Article 7 of Regulation No 4056/86 introduces a mechanism for monitoring exempt agreements. It provides as follows:

1. Breach of an obligation

Where the persons concerned are in breach of an obligation which, pursuant to Article 5, attaches to the exemption provided for in Article 3, the Commission may, in order to put an end to such breach and under the conditions laid down in Section II:

– address recommendations to the persons concerned;

– in the event of failure by such persons to observe those recommendations and depending upon the gravity of the breach concerned, adopt a decision that either prohibits them from carrying out or requires them to perform specific acts or, while withdrawing the benefit of the block exemption which they enjoyed, grants them an individual exemption according to Article 11(4) or withdraws the benefit of the block exemption which they enjoyed.

2. Effects incompatible with Article 85(3)

(a) Where, owing to special circumstances as described below, agreements, decisions and concerted practices which qualify for the exemption provided for in Articles 3 and 6 have nevertheless effects which are incompatible with the conditions laid down in Article 85(3) of the Treaty, the Commission, on receipt of a complaint or on its own initiative, under the conditions laid down in Section II, shall take the measures described in (c) below. The severity of these measures must be in proportion to the gravity of the situation.

(b) Special circumstances are, inter alia, created by:

(i) acts of conferences or a change of market conditions in a given trade resulting in the absence or elimination of actual or potential competition such as restrictive practices whereby the trade is not available to competition; or

(ii) acts of conferences which may prevent technical or economic progress or user participation in the benefits;

(iii) acts of third countries which:

– prevent the operation of outsiders in a trade,

– impose unfair tariffs on conference members,

– impose arrangements which otherwise impede technical or economic progress (cargo-sharing, limitations on types of vessels).

(c) (i) If actual or potential competition is absent or may be eliminated as a result of action by a third country, the Commission shall enter into consultations with the competent authorities of the third country concerned, followed if necessary by negotiations under directives to be given by the Council, in order to remedy the situation.

If the special circumstances result in the absence or elimination of actual or potential competition contrary to Article 85(3)(b) of the Treaty the Commission shall withdraw the benefit of the block exemption. At the same time it shall rule on whether and, if so, under what additional conditions and obligations an individual exemption should be granted to the relevant conference agreement with a view, inter alia, to obtaining access to the market for non-conference lines.

(ii) If, as a result of special circumstances as set out in (b), there are effects other than those referred to in (i) hereof, the Commission shall take one or more of the measures described in paragraph 1.

12 Article 8 of Regulation No 4056/86 provides:

1. The abuse of a dominant position within the meaning of Article 86 of the [EC] Treaty (now Article 82 EC) shall be prohibited, no prior decision to that effect being required.

2. Where the Commission, either on its own initiative or at the request of a Member State or of natural or legal persons claiming a legitimate interest, finds that in any particular case the conduct of conferences benefiting from the exemption laid down in Article 3 nevertheless has effects which are incompatible with Article 86 of the Treaty, it may withdraw the benefit of the block exemption and take, pursuant to Article 10, all appropriate measures for the purpose of bringing to an end infringements of Article 86 of the Treaty.

3. Before taking a decision under paragraph 2, the Commission may address to the conference concerned recommendations for termination of the infringement.

13 Article 9(1) of Regulation No 4056/86 provides that where the application of that regulation is liable to conflict with the law of certain third countries, which would compromise important Community trading and shipping interests, the Commission must at the earliest opportunity undertake consultations with the competent authorities of the third countries aimed at reconciling the abovementioned interests as far as possible with Community law. Under Article 9(2) of the regulation, where agreements with third countries need to be negotiated, the Commission is to make recommendations to the Council, which is to authorise the Commission to open the necessary negotiations. The Commission must conduct those negotiations in consultation with the Advisory Committee on agreements and dominant positions in maritime transport, in the framework of such directives as the Council may issue to it.

14 The first paragraph of Article 10 of Regulation No 4056/86 provides:

Acting on receipt of a complaint or on its own initiative, the Commission shall initiate procedures to terminate any infringement of the provisions of Articles 85(1) or 86 of the Treaty or to enforce Article 7 of this Regulation.

15 Article 15(3) of the same regulation provides that an Advisory Committee on agreements and dominant positions in maritime transport is to be consulted prior to the taking of any decision following upon a procedure under Article 10.

16 As regards individual application of Article 85(3) of the Treaty, the 18th recital in the preamble to Regulation No 4056/86 states that in view of the special characteristics of maritime transport, it is primarily the responsibility of undertakings to see to it that their agreements, decisions and concerted practices conform to the rules on competition, and consequently their notification to the Commission need not be made compulsory.

17 Thus, Article 11(4) of Regulation No 4056/86 provides:

If the Commission, whether acting on a complaint received or on its own initiative, concludes that an agreement, decision or concerted practice satisfies the provisions both of Article 85(1) and of Article 85(3) of the Treaty, it shall issue a decision applying Article 85(3). Such decision shall indicate the date from which it is to take effect. This date may be prior to that of the decision.

18 However, under Article 12(1) of Regulation No 4056/86, undertakings may submit applications to the Commission seeking application of Article 85(3) of the Treaty in respect of agreements, decisions and concerted practices falling within Article 85(1) of the Treaty to which they are parties. Those applications will be considered in accordance with the opposition procedure laid down by that provision.

19 Under Article 19 of Regulation No 4056/86:

2. The Commission may by decision impose on undertakings or associations of undertakings fines of from 1 000 to one million ECU, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement, where either intentionally or negligently:

(a) they infringe Article 85(1) or Article 86 of the Treaty, or do not comply with an obligation imposed under Article 7 of this Regulation;

(b) they commit a breach of any obligation imposed pursuant to Article 5 or to Article 13(1).

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

...

4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of criminal law nature.

The fines provided for in paragraph 2(a) shall not be imposed in respect of acts taking place after notification to the Commission and before its Decision in application of Article 85(3) of the Treaty, provided they fall within the limits of the activity described in the notification.

However, this provision shall not have effect where the Commission has informed the undertakings concerned that after preliminary examination it is of the opinion that Article 85(1) of the Treaty applies and that application of Article 85(3) is not justified.

20 Article 23(1) of Regulation No 4056/86 provides that before taking a decision the Commission is to give the undertakings or associations of undertakings concerned the opportunity of being heard on the matters to which the Commission has taken objection. Commission Regulation No 4260/88 of 16 December 1988 on the communications, complaints and applications and the hearings provided for by Council Regulation No 4056/86 (OJ 1988 L 376, p. 1), which was in force at the time of the facts in the present case, sets out the procedural requirements governing such hearings.

Facts

I. The Transatlantic Agreement (TAA)

21 All but one of the applicants in this action are shipping companies which were party to the TAA.

22 The TAA was an agreement relating to transatlantic liner services between northern Europe and the United States of America which was notified to the Commission on 28 August 1992 and came into force on 31 August 1992.

23 The TAA set, amongst other things, the rates applicable to maritime transport and intermodal transport. In the case of maritime transport there were at least two rate levels. The rates applicable to intermodal transport included, in addition to maritime transport, the inland haulage of goods to or from the coast, from or to a point inland. The rates applicable to intermodal transport thus covered both the maritime and the inland part. The TAA also contained provisions governing other aspects of container liner transport, in particular the chartering of slots or space, equipment exchange, the fixing of rates for cargo-handling activities in port and the joint management of maritime transport capacity.

24 On 19 October 1994 the Commission issued Decision 94/980/EC relating to a proceeding pursuant to Article 85 of the Treaty (IV/34.446 - Trans-Atlantic Agreement) (OJ 1994 L 376, p. 1).

25 Decision 94/980 (the TAA decision) states that the agreements fixing prices, capacity non-utilisation in maritime transport and the price of inland container transport in or via the Community as part of intermodal transport operations infringe Article 85(1) of the Treaty (Article 1 of the TAA decision).

26 As regards the application of Article 85(3) of the Treaty, the TAA decision concludes that the block exemption laid down by Article 3 of Regulation No 4056/86 in respect of certain liner conference agreements does not apply to the provisions of the TAA agreement, on the ground that the TAA is not a liner conference applying uniform or common freight rates within the meaning of Article 1(3)(b) of Regulation No 4056/86 because it establishes at least two maritime rate levels. In any event, even if the TAA were a liner conference, the Commission considers that the TAA provisions as to capacity non-utilisation and price fixing in respect of inland transport services provided as part of intermodal transport operations could not qualify for block exemption because freezing transport capacity cannot be regarded as the regulation of the carrying capacity offered by each member within the meaning of Article 3(d) of Regulation No 4056/86 and price fixing for inland transport services, even as part of intermodal transport, does not fall within the scope of Regulation No 4056/86, which applies only to port-to-port maritime transport. Furthermore, the Commission refuses to grant individual exemption for those provisions under Article 85(3) of the Treaty and Article 5 of Regulation No 1017/68 (Article 2 of the TAA decision).

27 Article 4 of the TAA decision prohibits the parties to whom it is addressed from engaging in price-fixing activities whose object or effect is the same as or comparable to that of the provisions of the TAA.

28 Lastly, Article 5 of the TAA decision requires the undertakings to which it is addressed to inform customers with whom they have concluded service contracts and other contractual relations in the context of the TAA that such customers are entitled, if they so wish, to renegotiate the terms of those contracts or to terminate them forthwith.

29 By order of 10 March 1995 the President of the Court of First Instance granted the application for suspension of the operation of Articles 1, 2, 3 and 4 of the TAA decision until delivery of the judgment of the Court of First Instance in the main action, in so far as those articles prohibited the TAA parties from jointly exercising rate-making authority in respect of the inland parts within the Community of through intermodal transport services (order of the President of the Court of First Instance of 10 March 1995 in Case T-395/94 R Atlantic Container Line and Others v Commission [1995] ECR II-595). The Commission's appeal against that order was dismissed by order of the President of the Court of Justice of 19 July 1995 (Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165).

30 By judgment of 28 February 2002, the Court of First Instance dismissed the application to annul the TAA decision subject to Article 5 thereof (Case T-395/94 Atlantic Container Line and Others v Commission [2002] ECR II-875, the TAA judgment). No appeal was lodged against that judgment.

II. The Trans-Atlantic Conference Agreement (TACA)

31 Following discussions between the parties to the TAA and the Commission, that agreement was amended and replaced by the TACA.

32 Like the TAA, the TACA covers eastbound and westbound shipping routes between ports in northern Europe and points served by them on the one hand, and ports in the United States of America and points served by them on the other.

33 It is not in dispute that the TACA contains provisions identical to those of the TAA on the fixing of prices for inland transport services provided within the Community. The TACA also contains a number of rules concerning other aspects of transport, in particular as regards the conclusion of service contracts and the remuneration of freight forwarders.

TACA notifications

34 On 5 July 1994 the TACA was notified to the Commission pursuant to Article 12(1) of Regulation No 4056/86 with a view to obtaining exemption under Article 85(3) of the Treaty and Article 53(3) of the Agreement on the European Economic Area (EEA).

35 The original parties to the TACA were the following 15 shipping companies: A.P. Møller-Mærsk Line (Mærsk), Atlantic Container Line AB (ACL), Hapag-Lloyd AG (Hapag-Lloyd), Nedlloyd Lijnen BV (Nedlloyd), P&O Containers Ltd (P&O), Sea-Land Service, Inc. (Sea-Land), Mediterranean Shipping Co. (MSC), Orient Overseas Container Line (UK) Ltd (OOCL), Polish Ocean Lines (POL), DSR-Senator Lines GmbH (DSR-Senator), Cho Yang Shipping Co. Ltd (Cho Yang), Neptune Orient Lines Ltd (NOL), Nippon Yusen Kaisha (NYK), Transportación Marítima Mexicana SA de CV (TMM) and Tecomar SA de CV (Tecomar). Hanjin Shipping Co. Ltd (Hanjin) subsequently became a party to the TACA on 31 August 1994. Hyundai Merchant Marine Co. Ltd (Hyundai) became a party to the TACA on 11 September 1995. Hyundai is the only one of those shipping companies never to have been a party to the TAA.

36 By letter of 15 July 1994 the Commission informed the TACA parties that, pursuant to Article 4(8) of Regulation No 4260/88, it also intended to examine the application for individual exemption under Regulation No 1017/68, on the ground that some of the activities notified fell outside the scope of Regulation No 4056/86.

37 The TACA came into force on 24 October 1994. As a result of successive amendments, several new versions of that agreement were notified to the Commission after 5 July 1994.

38 On 29 November 1995, following various discussions and exchanges of correspondence with the Commission, the TACA parties notified the European Inland Equipment Interchange Arrangement (the EIEIA), a cooperation agreement in respect of the inland part of through intermodal transport.

39 On 10 January 1997 the TACA parties notified to the Commission a hub and spoke system of cooperation with a view to obtaining exemption for the collective fixing of prices for all inland transport services.

40 The TACA gave rise to two separate procedures: the procedure withdrawing immunity from fines and the procedure for infringement of Articles 85 and 86 of the Treaty. These proceedings concern the latter procedure.

Administrative procedure withdrawing immunity from fines

41 On 21 June 1995 the Commission adopted a statement of objections addressed to the TACA parties (with the exception of Hyundai, which was not a party to the TACA at that time), stating that it was disposed to adopt a decision withdrawing immunity from the fines which might result from the notification of the TACA in respect of the agreement between the parties to fix prices for inland transport services supplied within the territory of the Community.

42 On 1 March 1996 the Commission addressed a supplementary statement of objections to the TACA parties in which it stated that the EIEIA in no way altered its assessment of 21 June 1995.

43 On 26 November 1996 the Commission adopted Decision C (96) 3414 (final) relating to a proceeding pursuant to Article 85 of the Treaty (IV/35.134 - Trans-Atlantic Conference Agreement, unpublished, the decision withdrawing immunity) by which it withdrew from the TACA parties immunity from fines in respect of the TACA provisions fixing inland rates, given that, according to the Commission's preliminary opinion, those provisions did not satisfy the requirements of Article 85(3) of the Treaty, Article 5 of Regulation No 1017/68 and Article 53(3) of the EEA Agreement.

44 By judgment of 28 February 2002, the Court of First Instance held that the TACA parties' action challenging that decision was inadmissible (Case T-18/97 Atlantic Container Line and Others v Commission [2002] ECR II-1125). No appeal was lodged against that judgment.

Administrative procedure for infringement of Articles 85 and 86 of the Treaty

45 On 24 May 1996 the Commission addressed a statement of objections on the merits to the TACA parties, adopted on the basis of Regulations Nos 17, 1017/68 and 4056/86. In that statement the Commission declared, inter alia, that it considered that the TACA fell within the prohibition in Article 85(1) of the Treaty and that it contained a number of elements which did not fall within the scope of Article 85(3) of the Treaty. The Commission stated that it was disposed to adopt a decision finding the TACA parties to be in breach of Article 85(1) and requiring them to bring to an end the practices which fell outside the scope of Article 85(3). The statement of objections also indicated that the TACA parties had abused their dominant position, contrary to Article 86 of the Treaty, and that the Commission intended to impose fines on them in that regard. Lastly, the statement of objections announced that the Commission was disposed to withdraw the benefit of the block exemption laid down by Regulation No 4056/86 pursuant to Articles 7 and/or 8 of that regulation.

46 On 6 September 1996 the applicants replied to the Commission's statement of objections of 24 May 1996. The TACA parties set out their position orally at a hearing on 25 October 1996.

47 A supplementary statement of objections was adopted by the Commission on 11 April 1997 in which it stated that, notwithstanding the notification of the hub and spoke system, it remained disposed to adopt a decision prohibiting, inter alia, the practice of fixing prices for carrier haulage services supplied within the Community which fall outside the scope of the TACA hub and spoke system.

48 On 16 September 1998 the Commission adopted Decision 1999/243/EC relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty (Case No IV/35.134 - Trans-Atlantic Conference Agreement, OJ 1999 L 95, p. 1, the contested decision). In adopting that decision the Commission followed the procedures laid down by Regulations Nos 17, 1017/68 and 4056/86.

49 The Commission concluded in the contested decision that certain provisions of the TACA were contrary to Article 85(1) of the Treaty, Article 53(1) of the EEA Agreement and Article 2 of Regulation No 1017/68 and that the conditions for the grant of individual exemption laid down by Article 85(3) of the Treaty, Article 53(3) of the EEA Agreement and Article 5 of Regulation No 1017/68 were not fulfilled. The Commission further concluded that the applicants had infringed the provisions of Article 86 of the Treaty and Article 54 of the EEA Agreement and, on that ground, imposed fines on all of the applicants.

The contested decision

III. The relevant provisions of the TACA

50 The relevant provisions of the TACA which are the subject of the contested decision concern the fixing of transport rates, the conclusion of service contracts and the remuneration of freight forwarders.

The collective fixing of transport rates

51 The contested decision states that the TACA members collectively fix a five-part tariff showing separate rates for each of the following services: inland transport to the port, cargo handling in the port (transfer from the inland transport mode to the vessel), maritime transport (transport from one port to another), cargo handling in the port of destination (transfer from the vessel to the inland transport mode) and inland transport from the port of destination to the place of final destination (paragraph 96).

52 The contested decision further states that:

– - the common tariff contains a matrix of prices for the carriage of cargo between defined points: 26 classes of cargo are defined and a rate is specified for each class (paragraph 13);

– - the tariff is published by the TACA and is available to all shippers (paragraph 13);

– - the conference tariff sets out a number of different rates: standard rates, time/volume rates (TVRs) and loyalty contract rates (paragraph 103);

– - under US law, any member of a conference has the right to depart from the conference tariff in respect of a particular class of goods, provided that the other members of the conference are notified (paragraph 104).

Service contracts

53 Service contracts are contracts by which a shipper undertakes to provide a minimum quantity of cargo to be transported by the conference (conference service contracts) or by an individual carrier (individual service contracts) over a fixed period of time and the carrier or the conference commits to a certain rate or rate schedule as well as a defined service level (paragraph 110).

54 Individual service contracts are referred to as being joint where they are entered into by several individual carriers. It is not in dispute that the term joint service contracts in the contested decision covers both conference service contracts and individual joint service contracts.

55 It is common ground between the parties that, on the transatlantic trade, some 50% to 60% of cargo travels under service contracts (paragraph 122).

56 In the contested decision, the Commission states that the TACA sought to regulate the negotiation and the conclusion of both conference and individual service contracts.

57 First, as regards conference service contracts (or TACA service contracts), Article 14(3) of the TACA provides that these must be negotiated on behalf of the TACA parties by the TACA secretariat. Service contracts negotiated by the TACA secretariat are then put to the TACA voting procedure. Any TACA party which does not wish to participate in that service contract may take unilateral action, the scope of which is limited in accordance with Article 14(2)(j) of the TACA (paragraphs 132 to 148).

58 The contested decision states that Article 14(2) of the TACA also imposes a number of binding guidelines concerning the content of service contracts and the circumstances in which they may be concluded (paragraph 149). The relevant restrictions relate to the following matters:

– - duration: under Article 14(2)(a) of the TACA, service contracts must be concluded for a maximum period of one calendar year; that period was subsequently increased to two and then three years (paragraphs 17(f) and 491);

– - conditional clauses (or contingency clauses): under Article 14(2)(c) of the TACA, there is a prohibition on the inclusion in service contracts of any clause providing for a reduction in the rate payable under those service contracts by reference to terms agreed with other shippers under other arrangements (paragraphs 17(g) and 489);

– - multiple contracts: under Article 14(2)(c) of the TACA, none of the parties to it may participate, individually or with any other party to the TACA, in more than one service contract at a time with any particular shipper in respect of cargo to be carried on the trade (paragraphs 17(f) and 493);

– - the level of liquidated damages for non-performance of the contract: under Article 14(2)(d) of the TACA, the TACA parties agree on the level of liquidated damages included in service contracts entered into by them (paragraph 495); according to the contested decision, the level of liquidated damages has been set by the TACA parties at USD 250 per Twenty Foot Equivalent Unit (TEU) (paragraph 226);

– - confidentiality: the contested decision states that the TACA parties require the disclosure to each other of the terms of all service contracts to which they are party and make this information available to carriers which become party to the TACA (paragraph 496).

59 Second, the TACA prohibited the conclusion of individual service contracts until 1995. The TACA permitted such contracts in 1994 and 1995. The contested decision states:

32 On 9 March 1995, the TACA parties informed the Commission that the FMC [the US Federal Maritime Commission] had imposed a further condition on the TACA parties. This condition required the TACA parties to amend the TACA so as to allow the various signatories to enter into 1996 service contracts without having received the approval of the other TACA parties, provided that those contracts complied with the provisions of Article 14(2) of the TACA.

Remuneration of freight forwarders

60 Under Article 5(1)(c) of the TACA, the TACA parties agree on the amounts, levels or rates of brokerage and freight forwarder remuneration including the terms and conditions for the payment of such sums and the designation of persons eligible to act as brokers (paragraph 164).

IV. The definition of the relevant market

61 The contested decision states, on the basis of the analysis set out in paragraphs 60 to 84, that the market for maritime transport services to which the TACA relates is that for scheduled containerised liner shipping between ports in northern Europe and ports in the United States and Canada.

62 At paragraph 519, the Commission states in relation to the application of Article 86 of the Treaty:

The relevant market for maritime transport services is described at paragraphs 60 to 75. The geographic market [consists] of the area in which the maritime transport services defined above are marketed, that is, in this case, the catchment areas of the ports in northern Europe. Such a geographic market is commensurate with the scope of the TACA's inland tariff and constitutes a substantial part of the common market.

V. Legal assessment

63 The contested decision finds that the TACA's rules and practices in question fall within Article 85 and Article 86 of the Treaty.

Application of Article 85 of the Treaty

64 With regard to the application of Article 85 of the Treaty, the Commission states that the following aspects of the TACA have the object or effect of restricting or distorting competition within the meaning of paragraph 1 thereof:

– - the price agreement between the parties relating to maritime transport (paragraphs 379 and 380);

– - the price agreement between the parties relating to inland transport services supplied within the territory of the Community to shippers in combination with other services as part of an intermodal transport operation for the carriage of containerised cargo (carrier haulage services) between northern Europe and the United States of America (paragraphs 379 and 380);

– - the agreement between the parties as to the conditions under which they may enter into service contracts with shippers (paragraphs 379, 380 and 442 to 448); and

– - the agreement between the parties relating to the fixing of maximum levels of freight forwarder compensation (paragraphs 379, 380 and 505 to 508).

65 The Commission considers, by contrast, that it is unclear at this stage whether the equipment interchange agreement set out in the EIEIA affects competition to any appreciable degree. The applicability of Article 85 of the Treaty to that agreement is therefore not addressed in the contested decision (paragraphs 384, 399 and 426).

66 As regards the grant of an exemption, the Commission concludes that with the exception of the agreement relating to the price of maritime transport, the other agreements restricting competition do not fall within the block exemption provided for by Article 3 of Regulation No 4056/86 (paragraphs 397 to 399). As regards the possibility of individual exemption, the Commission considers that none of the agreements concerned fulfils the conditions laid down by Article 85(3) of the Treaty and Article 5 of Regulation No 1017/68 (paragraphs 409 to 441).

Application of Article 86 of the Treaty

67 As regards the application of Article 86 of the Treaty, the contested decision finds that the TACA members hold a collective dominant position on the relevant market (paragraphs 519 to 576) and that they abused that collective dominant position between 1994 and 1996, first, by entering into an agreement to place restrictions on the availability and content of service contracts (the first abuse) and secondly by altering the competitive structure of the market so as to reinforce the TACA's dominant position (the second abuse) (paragraphs 550 to 576).

68 As regards the first abuse (paragraphs 551 to 558), the Commission considers that this arose, in particular, in relation to the terms imposed by the TACA parties ... concerning contingency clauses, the duration of service contracts, the ban on multiple contracts and liquidated damages and to the prohibition of individual service contracts in 1995 (paragraphs 556 and 557).

69 As regards the second abuse (paragraphs 559 to 567), the Commission states that the intention of the TACA parties was ... to ensure that if a potential competitor wished to enter the market it would only do [so] after it had become a party of the TACA (paragraph 562). The steps taken by the TACA parties to induce potential competitors to enter the market as parties to the TACA include also, according to the contested decision, specific steps in favour of Hanjin (disclosure of confidential information and the allocation of market share) and Hyundai (immediate access to service contracts), the conclusion of a large number of dual-rate service contracts and the fact that the former structured TAA members did not compete for certain service contracts with non-vessel operating common carriers (NVOCCs).

Fines

70 The contested decision imposes fines on each of the TACA parties for their infringement of Article 86 of the Treaty. No fine is imposed for the infringement of Article 85 of the Treaty.

71 The contested decision states that the duration of those two infringements covers part of 1994 and the whole of 1995 and 1996 (paragraphs 592 and 594).

The operative part

72 The operative part of the contested decision provides as follows:

Article 1

The undertakings listed in Annex I have infringed the provisions of Article 85(1) of the EC Treaty, Article 53(1) of the EEA Agreement and Article 2 of Regulation (EEC) No 1017/68 by agreeing prices for inland transport services supplied within the territory of the European Community to shippers in combination with other services as part of a multimodal transport operation for the carriage of containerised cargo between northern Europe and the United States of America. The conditions of Article 85(3) of the EC Treaty, Article 53(3) of the EEA Agreement and of Article 5 of Regulation (EEC) No 1017/68 are not fulfilled.

Article 2

The undertakings listed in Annex I have infringed the provisions of Article 85(1) of the EC Treaty and Article 53(1) of the EEA Agreement by fixing the amounts, levels or rates of brokerage and freight forwarder remuneration, the terms and conditions for the payment of such sums and the designation of persons eligible to act as brokers. The conditions of Article 85(3) of the EC Treaty and Article 53(3) of the EEA Agreement are not fulfilled.

Article 3

The undertakings listed in Annex I have infringed the provisions of Article 85(1) of the EC Treaty and Article 53(1) of the EEA Agreement by agreeing the terms and conditions on and under which they may enter into service contracts with shippers. The conditions of Article 85(3) of the EC Treaty and Article 53(3) of the EEA Agreement are not fulfilled.

Article 4

The undertakings listed in Annex I are hereby required to put an end forthwith to the infringements referred to in Articles 1, 2 and 3 and are hereby required to refrain in future from any agreement or concerted practice having the same or a similar object or effect to the agreements referred to in Articles 1, 2 and 3.

Article 5

The undertakings listed in Annex I have infringed the provisions of Article 86 of the EC Treaty and Article 54 of the EEA Agreement by altering the competitive structure of the market so as to reinforce the dominant position of the Transatlantic Conference Agreement.

Article 6

The undertakings listed in Annex I have infringed the provisions of Article 86 of the EC Treaty and Article 54 of the EEA Agreement by placing restrictions on the availability and contents of service contracts.

Article 7

The undertakings listed in Annex I are hereby required to put an end forthwith to the infringements referred to in Articles 5 and 6 and are hereby required to refrain in future from any action having the same or a similar object or effect to the infringements referred to in Articles 5 and 6.

Article 8

In respect of the infringement of the provisions of Article 86 of the EC Treaty and Article 54 of the EEA Agreement referred to in Articles 5 and 6, the following fines are imposed:

A.P. Møller-Mærsk Line ECU 27 500 000

Atlantic Container Line AB ECU 6 880 000

Hapag Lloyd Container Linie GmbH ECU 20 630 000

P&O Nedlloyd Container Line Limited ECU 41 260 000

Sea-Land Service, Inc. ECU 27 500 000

Mediterranean Shipping Co. ECU 13 750 000

Orient Overseas Container Line (UK) Ltd ECU 20 630 000

Polish Ocean Lines ECU 6 880 000

DSR-Senator Lines ECU 13 750 000

Cho Yang Shipping Co., Ltd ECU 13 750 000

Neptune Orient Lines Ltd ECU 13 750 000

Nippon Yusen Kaisha ECU 20 630 000

Transportación Marítima Mexicana SA de

CV/Tecomar SA de CV ECU 6 880 000

Hanjin Shipping Co. Ltd ECU 20 630 000

Hyundai Merchant Marine Co. Ltd ECU 18 560 000

Article 9

The undertakings listed in Annex I are hereby required, within a period of two months of the date of notification of this decision, to inform customers with whom they have concluded joint service contracts that those customers are entitled to renegotiate the terms of those contracts or to terminate them forthwith.

Article 10

The fines imposed under Article 8 shall be paid, in ECU, within three months of the date of notification of this Decision, into bank account No 310-0933000-43 of the European Commission, Banque Bruxelles Lambert, Agence Européenne, Rond-Point Schuman 5, B-1040 Brussels.

After expiry of that period, interest shall be automatically payable on the fine at the rate charged by the European Central Bank for transactions in ECU on the first working day of the month in which this Decision is adopted, plus 3.5 percentage points, namely 7.5%.

Article 11

This Decision is addressed to the undertakings listed in Annex I.

This Decision shall be enforceable pursuant to Article 192 of the EC Treaty.

Procedure

73 By application lodged at the Registry of the Court of First Instance on 7 December 1998, 12 of the 17 shipping companies to whom the contested decision was addressed, namely ACL, Cho Yang, DSR-Senator, Hanjin, Hapag-Lloyd, Hyundai, Mærsk, MSC, OOCL, POL, P&O Nedlloyd (P&O Nedlloyd is the result of the merger in January 1997 of Nedlloyd and P&O, to both of which the contested decision had been addressed when it was adopted) and Sea-Land, lodged an application at the Registry of the Court of First Instance for annulment of that decision pursuant to Article 173 of the EC Treaty (now, after amendment, Article 230 EC). That application was registered as Case T-191/98 Atlantic Container Line and Others v Commission.

74 By separate application lodged on 29 December 1998, NOL brought an action for annulment of the contested decision. That application was registered as Case T-212/98 Neptune Orient Lines v Commission. On the same day NYK also lodged an application for annulment of the contested decision, which was registered as Case T-213/98 Nippon Yusen Kaisha v Commission. Finally, on 30 December 1998, TMM and Tecomar also lodged an application for annulment of the contested decision, which was registered as Case T-214/98 Transportación Marítima Mexicana and Tecomar v Commission.

75 On 18 January 1999, on the initiative of the Registrar, the Judge Rapporteur, Judge Jaeger, held an informal meeting with the applicants at which they were requested to put their applications, which run to about 2 000 pages (excluding annexes), in order, to consider the possibility of summarising them, to sort the relevant documents contained in approximately 100 loose-leaf files annexed to the applications and to resolve the confidentiality issues arising in respect of some of those documents. Only some of those confidentiality issues were able to be resolved at that meeting.

76 By order of 22 February 1999 the President of the Third Chamber of the Court of First Instance ordered that Cases T-191/98, T-212/98, T-213/98 and T-214/98 be joined for the purposes of the written and the oral procedure and judgment.

77 On 21 June 1999 the European Council of Transport Users ASBL (the ECTU, comprising the European Shippers' Council, ESC) sought leave to intervene in support of the form of order sought by the Commission in Cases T-191/98, T-212/98, T-213/98 and T-214/98.

78 By order of 21 July 1999, the President of the Court of First Instance dismissed the application lodged by DSR-Senator to suspend enforcement of the contested decision (Case T-191/98 R DSR-Senator Lines v Commission [1999] ECR II-2531). The appeal lodged against that order was dismissed by the President of the Court of Justice on 14 December 1999 (Case C-364/99 P(R) DSR-Senator Lines v Commission [1999] ECR I-8733).

79 On 17 August 1999 the applicants requested that certain documents be treated as confidential vis-à-vis the intervener. That request was further particularised in a fax of 23 August 1999. The Commission raised various objections to that request by letters of 10 September and 8 October 1999.

80 By order of 15 November 1999, the President of the Third Chamber of the Court of First Instance granted the ECTU leave to intervene and granted in part the application for confidentiality. In addition confidentiality was provisionally accorded to certain appendices to the application in Case T-191/98.

81 By letter of 8 December 1999 the applicants informed the Registrar that they intended to withdraw from the case-file all but one of the appendices referred to in the order of 15 November 1999. By letter of 10 December 1999 the applicants further requested confidentiality in respect of certain information contained in the rejoinder and the annexes thereto. By letter of 17 January 2000 the Commission objected to that request.

82 By order of 14 March 2000 the President of the Third Chamber of the Court of First Instance granted in part the applicants' request for confidentiality in respect of certain information contained in the application and the rejoinder.

83 By order of 28 June 2000, the President of the Court of First Instance dismissed the application to suspend enforcement of the contested decision lodged by Cho Yang (Case T-191/98 R II Cho Yang Shipping v Commission [2000] ECR II-2551). The appeal lodged against that order was dismissed by the President of the Court of Justice on 15 December 2000 (Case C-361/00 P(R) Cho Yang Shipping v Commission [2000] ECR I-11657).

84 On 27 September 2000 in the covering letter accompanying its observations on the ECTU's statement in intervention, the applicant in Case T-213/98 requested that the Court of First Instance accord confidentiality to certain figures set out in its observations. That request was repeated in a letter of 20 October 2000. The Commission objected to the request in a letter of 17 November 2000. By order of 20 June 2002 the President of the Third Chamber of the Court of First Instance granted the applicant's request.

85 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, requested the parties to produce certain documents and answer written questions. The parties complied with those requests within the prescribed time-limit.

86 The oral arguments of the parties and their answers to the oral questions were heard at the hearing on 26 and 27 March 2003.

Forms of order sought

87 The applicants claim that the Court should:

– - annul the contested decision;

– - in the alternative, annul or reduce the fines imposed by Article 8 of the contested decision;

– - order the Commission to pay the costs;

– - order the Commission to pay the costs incurred by each applicant in providing a bank guarantee in lieu of payment of the fines pending judgment by the Court.

88 The Commission, supported by the intervener, the ECTU, contends that the Court should:

– dismiss the application;

– order the applicants to pay the costs.

Law

89 In support of their application for annulment the applicants essentially raise seven groups of pleas. The first comprises those alleging infringement of the rights of the defence. The second concerns those alleging that there is no infringement of Article 85 of the Treaty. The third relates to those alleging that there is no infringement of Article 86 of the Treaty. The fourth relates to failure to comply with the procedure laid down by Regulation No 4056/86. The fifth relates to the pleas alleging various failures to state reasons. The sixth comprises the pleas on the fines. Finally, the seventh concerns infringement of the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC).

90 The Court observes at the outset that the applications lodged by the applicants, and the annexes thereto, are exceptionally long: each application comprises some 500 pages whilst the annexes make up about 100 files, and there are almost 100 different pleas. Attention must be drawn to the fact that the Court of Justice has held that the requirement for the Court of First Instance to give reasons for its decisions must not be interpreted as meaning that it is obliged to respond in detail to each argument advanced by a party, particularly if the argument is not sufficiently clear and precise and is not supported by adequate evidence (Case C-374/99 P Connolly v Commission [2001] ECR I-1611, paragraph 121, and Case C-197/99 P Belgium v Commission [2003] ECR I-8461, paragraph 81). The numerous pleas put forward by the applicants in support of their actions must be considered in the light of that case-law.

I. The pleas alleging infringement of the rights of the defence





91 There are essentially three separate parts to the applicants' pleas alleging infringement of the rights of the defence. The first part alleges infringement of the right to be heard. The second part alleges infringement of the right of access to the file. The third and final part alleges infringement of the principles of sound administration, objectivity and impartiality.

Part one: infringement of the right to be heard

92 In their application, the applicants divided this part into three sections. In the first, the applicants allege that the statement of objections is invalid because it was not adopted at the conclusion of the Commission's investigation and was therefore premature. In the second, they claim that the allegation that they abusively altered the competitive structure of the market is a new complaint which is, moreover, based on fresh evidence. In the third and final section, the applicants claim that the contested decision contains new allegations of fact and law not contained in the statement of objections.

93 It is, however, apparent from consideration of the application that the present part in fact comprises two different kinds of plea concerning the Commission's conduct of the administrative procedure. First, by a plea which appears in the first part of their argument, the applicants challenge the legality of the statement of objections as such on the ground that it is premature. Second, by pleas appearing in all three parts of their argument, they criticise the presence of new allegations of fact or law in the contested decision.

A – The plea alleging that the statement of objections i