Judgment of the Court of First Instance (First Chamber) of 10 March 1992. - Hüls AG v Commission of the European Communities. - Competition - Concepts of agreement and conceted practice - Collective responsibility. - Case T-9/89.



European Court reports 1992 Page II-00499



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

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

(EEC Treaty Art. 85(1) )

2. Competition - Administrative procedure - Access to the file - Commission' s obligation owing to rules laid down by itself in a report on competition policy

3. Competition - Administrative procedure - Respect for the rights of the defence - Notification of objections - Changes occurring during the procedure in the assessment made by the Commission - Permissible

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

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

(Commission Regulation No 99/63)

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

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

(EEC Treaty, Art. 85(1))

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

(EEC Treaty, Art. 85(1))

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

(EEC Treaty, Art. 85(1))

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

(EEC Treaty, Art. 85(1))

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

(EEC Treaty, Art. 85(1))

11. Acts of the institutions - Reasons - Duty to state them - Scope - Decision implementing the competition rules

(EEC Treaty, Art. 190)

12. Action for annulment - Consideration by the Court of its own motion of the question of the existence of the contested measure - Conditions

(EEC Treaty, Art. 173, second paragraph)

Summary

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

2. Once the Commission, going beyond what is required by observance of the rights of the defence, has established a procedure for providing access to the file in competition cases and has laid down the rules of that procedure and published in them in one of its reports on competition policy, it may not depart from the rules which it has imposed on itself and thus has the obligation to make available to the undertakings involved in Article 85(1) proceedings 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.

3. A decision finding that the competition rules have been infringed is not necessarily required to be a replica of the Commission' s notice of objections. The Commission must take into account the factors emerging from the administrative procedure in order either to abandon such objections which have proved to be unfounded or to supplement and redraft its arguments both in fact and in law in support of the objections it maintains. This latter possibility does not conflict with the principle of the rights of the defence protected by Article 4 of Regulation No 99/63.

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

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

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

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

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

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

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

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

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

12. Even though the Community court, in an action for annulment under the second paragraph of Article 173 of the Treaty, must of its own motion consider the issue of the existence of the contested measure, that does not mean that in every action brought under the second paragraph of Article 173 of the Treaty the possibility that the contested measure is non-existent must automatically be investigated. It is only in so far as the parties put forward sufficient evidence to suggest that the contested measure is non-existent that the Community court must review that issue of its own motion.

Parties

In Case T-9/89,

Huels Aktiengesellschaft, a company incorporated under German law, having its registered office in Marl (Federal Republic of Germany), represented by H.-J. Herrmann, Rechtsanwalt, Cologne, with an address for service in Luxembourg at the Chambers of Messrs Loesch & Wolter, 8 Rue Zithe,

applicant,

v

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

defendant,

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

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(First Chamber),

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

Advocate General: B. Vesterdorf,

Registrar: H. Jung,

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

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

gives the following

Judgment

Grounds

Facts and background to the action

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

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

3 Chemische Werke Huels was one of the producers supplying the market before 1977. Its position on the polypropylene market was that of a medium-sized producer whose market share was between about 4.5 and 6.5%.

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

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

BASF AG ("BASF"),

DSM N.V. ("DSM"),

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

Hoechst AG ("Hoechst"),

Chemische Werke Huels ("Huels"),

Imperial Chemical Industries PLC ("ICI"),

Montepolimeri SpA, now Montedipe ("Monte"),

Shell International Chemical Company Limited ("Shell"),

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

BP Chimie ("BP").

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

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

Amoco,

Chemie Linz AG ("Linz"),

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

Petrofina S.A. ("Petrofina"),

Enichem Anic SpA ("Anic").

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

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

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

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

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

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

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

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

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

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

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

"Article 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 2

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

Article 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 4

...

Article 5

..."

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

Procedure

17 These are the circumstances in which, by application lodged at the Registry of the Court of Justice on 2 August 1986, the applicant brought this action seeking annulment of the Decision. Thirteen of the fourteen other addressees of the Decision have also brought actions for its annulment (Cases T-1/89 to T-4/89, T-6/89 to T-8/89 and T-10/89 to T-15/89).

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

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

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

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

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

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

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

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

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

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

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

Forms of order sought by the parties

29 Huels claims that the Court should:

1. annul the Commission' s decision of 23 April 1986 (IV/31.149 - Polypropylene), notified on 27 May 1986;

2. alternatively, reduce the fine imposed on it;

3. order the defendant to pay the costs.

The Commission contends that the Court should:

1. dismiss the application;

2. order the applicant to pay the costs.

Substance

30 It is necessary to examine, first, the applicant' s grounds of challenge relating to a breach of the rights of the defence allegedly committed by the Commission in so far as (1) the Commission failed to disclose to the applicant documents on which it based the Decision, (2) the applicant had insufficient access to the file, (3) all the objections raised against it in the Decision were not the subject of the statement of objections, (4) the investigation was insufficient, (5) the final minutes of the hearings were not communicated either to the members of the Commission or to those of the Advisory Committee, and (6) the hearing officer' s report was not communicated to the applicant; secondly, the grounds of challenge relating to proof of the infringement concerning (1) the findings of fact made by the Commission and (2) the application to those facts of Article 85(1) of the EEC Treaty whereby it is contended that the Commission (A) did not correctly define the infringement, (B) did not correctly assess the restrictive effect on competition and (C) did not correctly assess how trade between Member States was affected, and (D) imputed collective responsibility to the applicant; thirdly, the grounds of challenge relating to the reasoning of the Decision, which is considered to be (1) insufficient and (2) contradictory; fourthly, the grounds of challenge relating to the determination of the fine, which is alleged to be (1) partially time-barred, (2) disproportionate to the duration of the alleged infringement and (3) disproportionate to the gravity of the alleged infringement.

The rights of the defence

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

31 The applicant contends that Regulation No 17 and the observance of the rights of the defence require that the Commission should base its decision only on matters of fact and of law to which it has previously referred in the statement of objections and on which the undertaking has been given the opportunity to comment.

32 That principle also applies to the production of evidence: evidence may be used as the basis of the Decision only if it was mentioned in the statement of objections (judgment of the Court of Justice in Case 107/82 AEG-Telefunken AG v Commission [1983] ECR 3151, paragraph 27). The applicant lists 69 documents which it claims were not disclosed to it and form part of what the Commission itself described in the Decision as the main evidence. The documents in question are: the note of the meeting of 13 May 1982 made by a Hercules executive (Decision, point 15; see also point 37), the note of the meeting of 10 March 1982 made by an ICI executive (Decision, point 15; see also point 58); documents relating to the floor-price agreement (Decision, points 16 and 17), a document allegedly found at the premises of Solvay dated 6 September 1977 (Decision, point 16, penultimate paragraph), Shell' s reply to the statement of objections (Decision, point 17), the replies of other undertakings to the request for information (Decision, point 18), the note of the meeting of 20 August 1982 drawn up by an ICI executive (Decision, point 19), circulars addressed to customers by national sales offices relating to price changes (Decision, points 24 to 27), two notes of Shell internal meetings held on 5 July and 12 September 1979 (Decision, points 29 and 31), forty-eight price instructions addressed by other producers to their sales offices and an internal Solvay document (Decision, points 32 to 36), an internal ICI note relating to the "firm climate" (Decision, point 46), Shell documents relating to the United Kingdom and France and a Shell document headed "PP W. Europe-Pricing" and "Market quality report" (Decision, point 49), various ATO documents, in particular an internal note of 28 September 1983 (Decision, point 51), articles which appeared in European Chemical News (hereinafter referred to as "ECN") (Decision, point 51, last paragraph), an undated ICI note made in preparation for a meeting with Shell planned for May 1983 (Decision, point 63, second paragraph), statements by Amoco and BP (Decision, point 53), document found at the premises of ATO relating to a scheme for the sharing of the French market between French producers (Decision, point 54) and, finally, a working document relating to the first quarter of 1983 found at the premises of Shell (Decision, point 63, third paragraph).

33 The applicant submits that the access-to-file procedure can be no proper substitute for the disclosure of documents upon notification of the statement of objections since if that procedure became the general practice the situation could be reached where the Commission no longer communicated any document as an appendix to the statement of objections.

34 The applicant disputes that the Commission has the power to choose between the documents it considers relevant and those it considers irrelevant and thus to disclose some but not others, especially when it is a matter of proving a comprehensive cartel involving several undertakings. It also objects to the Commission' s playing down of the importance of documents which it acknowledges were not communicated to the applicant whereas in the Decision it considers them to be essential evidence.

35 The Commission acknowledges that, as a result of an error, the ICI note of the "experts' " meeting of 10 March 1982 referred to in the Decision (point 58) was not communicated but it adds that the note merely confirmed a note of the same meeting made by Hercules which was appended to the main statement of objections (main statement of objections, Appendix 23) and only served to identify a table which was also disclosed (main statement of objections, Appendix 71). The same applies to an ICI note mentioned in point 63 of the Decision which was not disclosed to the applicant because it contained business secrets and only concerned Shell' s participation in the quota system for 1983 and did not therefore concern Huels.

36 As regards the other documents referred to by Huels, the Commission provides the following explanations: the ICI note relating to the "firm climate" (main statement of objections, Appendix 35), the circulars to the sales offices (main statement of objections, Appendices 19, 42, 46, 50 and 52), the note of the meeting of 20 August 1982 made by an ICI executive (main statement of objections, Appendix 28) and the various documents relating to the floor-price agreement (main statement of objections, Appendices 2 to 7) were set out in the Appendices to the main statement of objections; the 48 price instructions relating to the price initiatives of January-May 1981 and August-December 1981 were appended in their entirety to the Commission' s letter of 31 October 1984 and, partly in the form of a summary, to the Commission' s letter of 29 March 1985, those letters relating to the price initiatives. The Commission adds that if the applicant refused to examine those documents owing to the restrictions imposed on their disclosure to its sales departments, it has only itself to blame. As regards the other documents, they were documents which were of no importance for the matters alleged against the applicant because they only concerned other undertakings, documents which were already summarized in other documents which had already been duly disclosed, documents which were made available to the applicant in the access-to-file procedure, or even unknown documents.

37 In this regard, the Commission states that the very purpose of the access-to-file procedure is to allow undertakings to examine all the evidence in its possession which might be used against them. The documents in question here are documents which confirm those appended to the statement of objections and whose communication with the statement of objections would be unnecessary or even damaging for the defence of the undertakings themselves.

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

39 In this instance, only the documents mentioned in the main or specific statements of objections or in the letters of 31 October 1984 or 29 March 1985, or those appended to them without being specifically mentioned therein, may be treated as admissible evidence as against the applicant in the present case. As far as the documents which are appended to the statements of objections but which are not mentioned therein are concerned, they may be used in the Decision as against the applicant only if the applicant could reasonably deduce from the statements of objections the conclusions which the Commission intended to draw from them.

40 It follows that, of the documents mentioned by the applicant, only the various documents relating to the floor-price agreement (Decision, points 16 and 17), ICI' s and Shell' s replies to the request for information (Decision, point 18), the note of an ICI executive relating to the meeting of 20 August 1982 (Decision, point 19), the circulars addressed to customers by the national sales offices (Decision, point 25) and the internal ICI note on the "firm climate" (Decision, point 46) may be used as evidence against the applicant since they were mentioned in, respectively, points 33 to 38 in the case of the first set of documents, point 39 and 47 in the case of ICI' s and Shell' s replies, points 65, 80 and 103 in the case of the note of the meeting of 20 August 1982, points 58 and 75 in the case of the circulars and in point 71 in the case of the ICI note, of the main statement of objections addressed to the applicant, of which they also form Appendices 2 to 7; 8 and 9; 28; 19, 42, 46, 50 and 52; and 35. To those documents must be added the forty-eight price instructions issued by the various producers which were appended to the Commission' s letter of 31 October 1984 and which are referred to in a summary and in the tables appended to the letter of 29 March 1985, in a context from which the applicant could reasonably deduce the conclusions which the Commission drew from them. The other documents referred to by the applicant cannot be regarded as evidence admissible against the applicant in the present case.

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

2. Insufficient access to the file

42 The applicant states that since it did not have access to the whole of the Commission' s file during the access-to-file procedure, despite its request for such access which it had made in its letter of 8 November 1984 (Appendix 21 to the application), it was unable to verify whether the documents not made available to it contained evidence in its favour or to consider fully the Commission' s assessment of the evidence.

43 It considers, however, that observance of the rights of the defence requires that any measure of an authority directed against a person or an undertaking should be capable of review by means of complete access to the file by the person concerned. In support of this argument Huels refers to the judgment of the Court of Justice in Case 107/82 (AEG v Commission, cited above, paragraph 24) in which it held that it was not for the Commission to judge whether a document or a part thereof was or was not of use for the defence of the undertaking concerned. That ruling relating to a specific document applied a fortiori to whole sections of a file.

44 It states that the Commission' s administrative practice is similar since it recognizes the right of the undertakings concerned to inspect the whole of the relevant files (Twelfth Report on Competition Policy, p. 40), a right which can be restricted only in exceptional circumstances (business secrets, internal plans, and so forth). It points out that the legislation of the Member States also recognizes the right to general inspection of the files. Therefore, undertakings must be made aware of all the results of the investigation, including those which the Commission does not intend to use against the undertakings. That requirement is confirmed by the judgment of the Court of Justice in Joined Cases 43 and 63/82 (VBVB and VBBB v Commission [1984] ECR 19, at paragraph 25; see also the judgment in Case 107/82 AEG v Commission, cited above, paragraph 27), referred to by the Commission, which excludes from the right to disclosure the Commission' s internal documents, but not those obtained by the Commission from the undertakings.

45 The Commission states that, according to the most recent case-law (judgment of the Court of Justice in Joined Cases 43 and 63/82 VBVB and VBBB v Commission, cited above), it is sufficient for the parties to have access to the documents which form the basis of the decision in question. In the present case, the Commission allowed the applicant to inspect all the documents in its possession during the access-to-file procedure in June 1984, with the exception of the documents containing business secrets.

46 The Court observes that regard for the rights of the defence requires that an applicant must have been put in a position to express, as it sees fit, its views on all the objections raised against it by the Commission in the statement of objections addressed to it and on the evidence which is to be used to support those objections and is mentioned by the Commission in the statement of objections or annexed to it (judgment of the Court of Justice in Case 322/81 Nederlandsche Banden-Industrie Michelin N.V. v Commission [1983] ECR 3461, paragraph 7 at p. 3498).

47 However, regard for the rights of the defence does not require that an undertaking involved in a procedure pursuant to Article 85(1) of the EEC Treaty must be able to comment on all the documents forming part of the Commission' s file since there are no provisions requiring the Commission to divulge the contents of its files to the parties concerned (judgment of the Court of Justice in Joined Cases 43 and 63/82 VBVB and VBBB v Commission, cited above, paragraph 25 at p. 59).

48 It must be observed, however, that in establishing a procedure for providing access to the file in competition cases, the Commission imposed on itself rules exceeding the requirements laid down by the Court of Justice. According to those rules, which are explained in the Twelfth Report on Competition Policy (pages 40 and 41), the Commission

"... permits the undertakings involved in a procedure to inspect the file on the case.

... Undertakings are informed of the contents of the Commission' s file by means of an annex to the statement of objections or to the letter rejecting a complaint, listing all the documents in the file and indicating documents or parts thereof to which they may have access.

They are invited to come and consult these documents on the Commission' s premises. If an undertaking wishes to examine only a few of them the Commission may forward copies.

However, the Commission regards the documents listed below as confidential and accordingly inaccessible to the undertaking concerned:

(i) documents or parts thereof containing other undertakings' business secrets;

(ii) internal Commission documents, such as notes, drafts or other working papers;

(iii) any other confidential information, such as documents enabling complainants to be identified where they wish to remain anonymous, and information disclosed to the Commission subject to an obligation of confidentiality."

The Commission may not depart from rules which it has thus imposed on itself (judgments of the Court of Justice in Case 81/82 Commission v Council [1973] ECR 575, paragraph 9 at p. 584, and in Case 148/73 Louwage v Commission [1974] ECR 81).

49 It follows that the Commission has an obligation to make available to the undertakings involved in Article 85(1) proceedings 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.

50 The Court notes that the Commission categorically denies that its officials failed to make available to the applicant documents which might contain evidence in its favour.

51 In the face of such denials from the Commission, the applicant has not put forward any evidence to prove that the Commission made selected documents available to the applicant in order to prevent it from refuting the evidence adduced by the Commission to prove its participation in the infringement.

52 By its letter of 8 November 1984 the applicant merely requested the Commission for access to the file for a second time on the ground that the Commission' s letter of 31 October 1984 for the first time revealed to it the relevance of the price instructions issued by various producers, contained in the file made available in June 1984; however, it did not claim that this file had been incomplete. The relevance of those price instructions is nevertheless quite clear from the main statement of objections, in particular points 58 and 75 and Appendices 19 and 42 to 52 thereto, so that during the access-to-file procedure the applicant was made aware that it was useful to examine all those documents with a view to using them, if necessary, in its defence. Consequently, the applicant has not proved that the Commission had prevented it from having access to the documents containing exonerating material.

53 The Court also points out that only the documents mentioned in the general or specific statements of objections or in the letters of 31 October 1984 or 29 March 1985 and those appended to them could be used in the Decision as evidence against the applicant.

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

3. Fresh objections

55 The applicant states that in the statement of objections the Commission explained that it did not consider it necessary to determine whether the arrangements in question were to be categorized as agreements or as concerted practices. However, the statement of objections gave the strong impression that in the final analysis the Commission considered that there was no agreement but only concerted practices. In its reply to that statement of objections and at the first session of hearings the applicant therefore focussed its argument on showing that there had been no concerted practices. In its supplementary letter of 29 March 1985 the Commission again emphasized the existence of concerted practices as far as small producers like Huels were concerned. In that same letter the Commission was then at pains to show that in any event either an agreement or a concerted practice existed, but that in the event of doubt the assumption had to be that the case involved a concerted practice. Huels therefore directed its defence, particularly during the second session of hearings, towards refuting that argument of the Commission.

56 It notes that the Commission, in a complete departure from the objections which it had previously addressed to the undertakings, accuses them in the Decision of having participated in an "single continuous agreement", in a "framework agreement" and in a "overall plan". Those are fresh, serious objections against which the applicant was unable to defend itself properly since they were made for the first time in the Decision.

57 According to the applicant, the raising of these fresh objections in this belated way constitutes a breach of the rights of the defence and of Article 4 of Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (Official Journal, English Special Edition, 1963-1964, p. 47), since the Commission may not base its decisions on objections, that is to say factual and legal matters, on which the undertakings concerned have not been afforded the opportunity of making known their views before the decision is adopted.

58 The Commission denies that it acted in breach of the rights of the defence during the administrative procedure. It considers that it acted in complete accordance with the case law of the Court (judgment in Case 41/69 ACF Chemiefarma N.V. v Commission [1970] ECR 661, paragraphs 91 to 93, and judgment in Joined Cases 209 to 215 and 218/78 Heintz Van Landewyck S.à r.l. and Others v Commission [1980] ECR 3125, paragraph 68), according to which it is quite permissible for it to take account of the factors emerging from the administrative procedure in order to supplement and redraft its arguments both in fact and in law in support of the objections which it maintains. Referring to the wording of the statement of objections and its subsequent letter of 29 March 1985, which, with regard to the small producers, refers to the possibility that an agreement was involved, referring to "continuous, institutionalized cooperation", the Commission considers that it allowed the question of the true nature of the cartel to be fully argued during the administrative procedure.

59 The Court observes that it is clear from the established case-law of the Court of Justice that "the decision is not necessarily required to be a replica of the Commission' s notice of objections". ... "The Commission must take into account the factors emerging from the administrative procedure in order either to abandon such objections which have proved to be unfounded or to supplement and redraft its arguments both in fact and in law in support of the objections it maintains. This latter possibility does not conflict with the principle of the rights of the defence protected by Article 4 of Regulation No 99/63" (judgment in Joined Cases 209 to 215 and 218/78 Van Landewyck v Commission, cited above, paragraph 68).

60 In the present case, it is clear from an examination of the main statement of objections and the letter of 29 March 1985 supplementing that statement, which must both be regarded as a whole (judgment in Van Landewyck v Commission, cited above, point 72), that the objection made against the applicant that it participated in a "single continuous agreement", a "framework agreement" and "overall plans", that objection being made in the first and third paragraphs of point 81 and the first paragraph of point 83 of the Decision, had already been expressed in the main statement of objections.

61 Contrary to the applicant' s assertions, the Decision does not simply find in point 81 that the undertakings in question "participated in an overall framework agreement which was manifested in a series of more detailed sub-agreements worked out from time to time" and that therefore "a single, continuous 'agreement' within the meaning of Article 85(1)" existed; the first of those sentences is preceded by the words: "In the present case the producers, by subscribing to a common plan to regulate prices and supply in the polypropylene market ...", and the second by the words: "The Commission considers that the whole complex of schemes and arrangements decided in the context of a system of regular and institutionalized meetings constituted ...". It follows that the expressions "framework agreement" or "single continuing 'agreement' " as well as the term "overall plans" (point 83) used in the Decision had no other meaning than that the Commission charged the undertakings to which the Decision was addressed with committing a single infringement whose various elements constituted a complex of integrated systems of regular meetings of polypropylene producers for setting price and quota targets characterized by a single economic purpose, which was to distort normal price movements on the polypropylene market.

62 This is precisely the tenor of the whole statement of objections addressed to the applicant and the other undertakings to which the Decision is addressed, and in particular of its points 1, 5, 128, 132 and 151(a). Point 1, for example, is worded as follows:

"The present statement of objections concerns the application of Article 85(1) of the EEC Treaty to a complex of agreements and/or concerted practices by which from about 1977 to October 1983 the producers supplying the bulk thermoplastic polypropylene in the common market coordinated their sales and pricing policy on a continuing and regular basis by setting and implementing 'targets' and/or minimum prices, controlling the tonnages supplied to the market by means of agreed 'targets' and/or quotas and meeting regularly in order to monitor the progress of the said restrictive arrangements."

And the last sentence of point 132 reads as follows:

"Effectively the producers were aiming to control the market and a continuing and institutionalized cooperation at a high level was substituted for the normal play of competitive forces."

63 It must be added that this tenor of the objections addressed to the applicant and the other undertakings to which the Decision was addressed is confirmed by the letter which was addressed to them on 29 March 1985 in which it is stated, on page 4: "Such arrangements constituted a sufficiently detailed plan to amount to an 'agreement' or 'agreements' under Article 85, at least as far as the producers involved in the meetings were concerned".

64 Consequently, the Court considers that in the Decision the Commission merely supplemented and clarified in law the arguments on which it bases its objections and that it did not therefore prevent the applicant from expressing its views on those objections before the Decision was adopted.

65 It follows that the applicant is not justified in accusing the Commission of having acted in breach of its rights of defence by raising fresh objections in the Decision.

4. Inadequate investigation of the facts

66 The applicant contends that the Commission acted in breach of the principle of proper investigation under which it was obliged to investigate the claims of the undertakings concerned and to reply to them (a principle which it deduces from the judgment of the Court of Justice in Joined Cases 56 and 58/64 Etablissements Consten S.à r.l. and Grundig-Verkaufs-GmbH v Commission [1966] ECR 299 and the judgment in Case 27/76 United Brands Company and Another v Commission [1978] ECR 207, paragraph 271). The Commission failed to investigate the economic effects of the cartel, the distortion of competition caused on the polypropylene market by illegal State aid, Huels' marketing strategy which was based on special products, and the losses incurred by the producers.

67 The Commission states that this objection concerns proof of the infringement or the determination of the fine and that it must therefore be examined at the same time as those matters.

68 The Court considers that the question whether the Commission carried out sufficient investigations during the administrative procedure - particularly with regard to the economic effects of the cartel, the distortions of competition caused on the polypropylene market by illegal State aid, Huels' marketing strategy which was based on special products and the losses incurred by producers - is indissociable from the assessment of the finding that the applicant was guilty of an infringement and of the amount of the fine which was imposed upon it and that it is therefore necessary to examine this objection at the same time as those matters.

5. Non-disclosure of the minutes of the hearings

69 The applicant refers to Article 9(4) of Regulation No 99/63, which states that: "The essential content of the statements made by each person heard shall be recorded in minutes which shall be read and approved by him". According to the applicant, neither the members of the Commission nor the members of the Advisory Committee received the final minutes of the hearings. They could not therefore obtain a precise idea of the arguments exchanged, since they had not all attended the hearings and could not study all the written submissions of the undertakings concerned. Thus, the Decision was not adopted in the full knowledge of the facts.

70 The applicant points out that, according to the preamble to Regulation No 99/63, the Advisory Committee must be consulted once the investigation is completed therefore after the minutes have been approved, and the participation of the Member States in the hearings can be no substitute for the final minutes which must be forwarded to the Advisory Committee.

71 It states that the provisional minutes did not take account of the purely internal character of its price instructions or of the fact that it denied the charges made against it and that those minutes were amended substantially as a result of its comments.

72 It contends that it is for the Commission to prove that the Decision would have not been different if that procedural irregularity had not been committed. According to the case-law of the Court of Justice (judgment in Case 45/69 Boehringer Mannheim GmbH v Commission [1970] ECR 769, paragraph 17, and judgment in Case 51/69 Farbenfabriken Bayer AG v Commission [1972] ECR 745, paragraph 17), a decision based on such draft minutes is void.

73 The Commission points out that Article 9(4) of Regulation No 99/63 does not indicate the bodies to which the Commission must submit the provisional or final minutes of the hearings. It is true that the members of the Advisory Committee only had the provisional minutes, but the competent authorities of all the Member States were represented in the hearings, with the exception of Greece and Luxembourg in the second session. It is unimportant in this regard that the official present at the hearings was not necessarily the representative of the State on the Advisory Committee.

74 It adds that in any event the amendments sought by the applicant appear to be minimal in the overall context since the provisional minutes already contained the main observations of the applicant.

75 It points out that for the purpose of adopting the Decision the members of the Commission had in their possession the provisional minutes and all the comments made by the parties on those minutes.

76 In any event, the Commission considers that the Decision would have been no different if the definitive minutes of the hearings had been available (judgment of the Court of Justice in Case 30/78 Distillers Company Ltd v Commission [1980] ECR 2229, paragraph 26, Opinion at p. 2290, and judgment in Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 28 to 32).

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

78 As regards the minutes forwarded to the Commission, it may be pointed out that along with the provisional minutes the Commission received the remarks and observations made in relation to them by the undertakings, and it should therefore be concluded that the members of the Commission were aware of all the relevant information before they adopted the Decision. GROUNDS CONTINUED UNDER DOC.NUM : 689A0009.1

79 As regards the minutes forwarded to the Advisory Committee, the Court observes that, contrary to the applicant' s assertions, the minutes in question were not drawn up in a way so as to mislead the Committee in a material respect. The provisional minutes forwarded to the Advisory Committee consisted of two parts, one relating to the hearing of 12 November 1984 and the other relating to the hearing of 25 July 1985. A combined reading of the two parts of the provisional minutes of the hearings shows that the requests for amendments of the provisional minutes made by the applicant relate either to one or the other part of those minutes but that they lose their significance when they are considered in the light of one another. Thus, the applicant' s criticism that the provisional minutes did not take account of the purely internal character of its price instructions cannot be accepted since, although the first part does contain the incorrect reference to Huels' price instructions sent to its customers, the second part contains the record of a discussion between the Commission representative and the applicant' s representative which specifically concerned the purely internal character of the price instructions issued by Huels, which does not contest the contents of that record. Similarly, the applicant' s criticism that the provisional minutes did not take account of the fact that it denied the various charges is irrelevant since in reality it only concerns the second part of the provisional minutes, whereas the denials in question were contained in the first part.

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

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

81 The applicant states that it asked to be allowed to inspect the hearing officer' s report but without success. According to the applicant, there is every reason to believe that the report was not taken into consideration in the Decision although the hearing officer had undoubtedly assessed Huels' counterarguments more moderately than the Commission. That refusal was not in accord with the purpose of the establishment of the hearing officer' s office and his terms of reference. It also restricted the applicant' s scope for defending itself by preventing it from checking whether the hearings and their result had been taken into consideration in an objective and reviewable way in the process leading to the adoption of the Decision. Huels reserves the right to request the Court to order the Commission to produce that report.

82 According to the Commission, there is no provision which provides for the hearing officer' s opinion to be disclosed to the addressees of the Commission' s decision. It considers that the hearing officer plays an important role in the internal decision-taking process of the Commission and that the undertakings cannot be entitled to be involved in that process since this would compromise the frankness and independence of the hearing officer. The Court confirmed this view in its order in Case 212/86 R (ICI v Commission, not published in the Reports of Cases before the Court, paragraphs 5 to 8).

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

"Article 2

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

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

Article 5

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

Article 6

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

Article 7

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

84 It is clear from the actual terms of reference of the hearing officer that it is not a requirement for his report to be made available to either the Advisory Committee or the Commission. No provision provides for the forwarding of the report to the Advisory Committee. Although it is true that the hearing officer must report to the Director-General for Competition (Article 5) and that he may, if he deems it appropriate, refer his observations directly to the member of the Commission with special responsibility for competition (Article 6), who may himself, at the hearing officer' s request, attach the hearing officer' s final report to the draft decision submitted to the Commission (Article 7), there is no provision requiring the hearing officer, the Director-General for Competition or the member of the Commission with special responsibility for competition to forward the hearing officer' s report to the Commission.

85 Consequently, the applicant cannot rely on the fact that the hearing officer' s report was not forwarded to the members of the Advisory Committee or to the members of the Commission.

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

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

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

89 Consequently, this ground of challenge must be dismissed.

Proof of the infringement

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

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

1. The findings of fact

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

A. The contested decision

92 The Decision (point 78, fourth paragraph, and point 104, third paragraph) states that the system of regular meetings began at about the end of 1977 but that it is not possible to identify the precise date on which each individual producer began to attend those meetings. It states that Huels, which is one of the producers in respect of which it is not proved that they "supported" the December 1977 initiative, states that it participated in only one meeting before the second half of 1982.

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

B. Arguments of the parties

94 The applicant points out that, although in its reply to the request for information (main statement of objections, Appendix 8) ICI described it as a regular participant in the meetings, this was only in respect of the period 1979 to 1983. It cannot therefore be inferred from that statement that the applicant participated in the meetings before 1979, still less that it participated in them from 1977 onwards. In actual fact, the evidence available shows at the most that it participated irregularly from 1981 and more regularly from 1982.

95 The Commission refers to ICI' s reply to the request for information to support its assertion that the applicant participated regularly in the meetings from some time between 1977 and 1979. ICI classified Huels as one of the regular participants in the meetings without any qualification as to the starting point for its participation, unlike that of other producers which was restricted to the period from 1979 to 1983. However, according to another passage in that reply, the meetings began at the end of 1977 and acquired some regularity in 1978. That information therefore indicates that the applicant was one of the "founding members" of the cartel.

C. Assessment by the Court

96 The Court finds that the only evidence put forward by the Commission to prove Huels' participation in the meetings during the period in question is ICI' s reply to the request for information (main statement of objections, Appendix 8).

97 The Court observes in this regard that ICI' s reply to the request for information classifies the applicant among the regular participants in the "experts' " and "bosses' " meetings without indicating from what date. In that reply it is stated:

"The regular participants at meetings of 'Experts' and 'Bosses' were as follows: ATO,BASF,Chemie Linz, DSM, Hoechst, Huels, ICI, Montepolimeri, Petrofina, Saga,Solvay. The following producers participated regularly during those periods between 1979 and 1983 while they were engaged in the West European polypropylene industry: Anic - polypropylene business taken over by Montepolimeri; SIR - believed to be no longer in business; Rhône-Poulenc - polypropylene business sold to BP. In addition, Alcudia and Hercules attended meetings on an irregular basis."

98 Since it has no precise information regarding the beginning of the applicant' s participation in those meetings, the Commission refers to a second passage in ICI' s reply:

"Because of the problems facing the polypropylene industry ... a group of producers met in about December 1977 to discuss what, if any measures could be pursued in order to reduce the burden of the inevitable heavy losses about to be incurred by them.... It was proposed that future meetings of those producers who wished to attend should be called on an 'ad hoc' basis in order to exchange and develop ideas to tackle these problems."

It infers from that passage that the applicant' s participation in the meetings began in December 1977. The Commission considers that that interpretation of ICI' s reply to the request for information is corroborated by the fact that if ICI stated the period during which the undertakings had participated in the meetings (1979-1983) only in respect of the undertakings named in the second sentence of the first passage quoted, it was in order to make it apparent that the undertakings named in the first sentence of that passage participated in the meetings from the start.

99 The Court observes that the passage of ICI' s reply to the request for information in which it classifies the applicant among the regular participants in the meetings expressly refers to its participation in "bosses' " and "experts' " meetings. The passage cited by the Commission in support of the assertion that the applicant participated in the meetings from December 1977 onwards concerns "ad hoc" meetings and not the "bosses' " and "experts' " meetings, in respect of which another passage in ICI' s reply to the request for information, in which it is stated:

"By late 1978/early 1979 it was determined that the 'ad hoc' meetings of Senior Managers should be supplemented by meetings of lower level managers with more marketing knowledge. This two-tier level of representation became identified as (a) 'Bosses' ... and (b) 'Experts' ",

indicates that they began in late 1978 or early 1979 as a result of the addition of "experts' " meetings" to the "ad hoc" "bosses' " meetings.

100 That interpretation of ICI' s reply to the request for information is confirmed if the first two sentences in the first passage quoted above are read on equal terms. Such a reading is justified by the fact that the distinction to be drawn between the undertakings mentioned in the first sentence and those mentioned in the second is not the beginning but the end of their participation in the meetings, since all the undertakings mentioned in the second sentence left the market before the end of the infringement. Those two sentences must therefore be interpreted in the light of each other, regard being had to the fact that the "bosses' " and "experts' " meetings did not begin before late 1978 or early 1979.

101 The Court would also point out that the Commission expressed doubt in the Decision as to the applicant' s participation in the meetings before 1979 since in the second paragraph of point 105 it states that the date on which Huels began to participate in the arrangements cannot have been later than 1979.

102 It follows that the Commission cannot put forward any evidence to prove Huels' participation in the infringement before the end of 1978 or the beginning of 1979 and that it has therefore not proved such participation to the requisite legal standard.

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

A. The system of regular meetings

(a) The contested decision

103 The Decision (point 78, fourth paragraph) states that Huels states that it attended only one meeting before mid-1982. It concludes (point 105, second paragraph) that the date on which Huels began to participate in the arrangements cannot have been later than 1979 since Huels is shown to have been involved in the market-sharing or quota systems which were first in force in that year.

104 The Decision (point 104, third paragraph, and point 105, second and fourth paragraphs) asserts that ICI has stated that Huels was a regular participant in the meetings and that the system of regular meetings of polypropylene producers continued until at least the end of September 1983. It finds that Huels participated in that system (point 18, first and third paragraphs).

105 According to the Decision (point 21), the purposes of the regular meetings of polypropylene producers included the fixing of price and sales volume targets and the monitoring of their observance by producers.

(b) Arguments of the parties

106 The applicant states that there was no "institutionalized system of regular meetings". The meetings, in which Huels did not participate regularly in any event, took place only on an ad hoc basis, as is indicated in ICI' s reply to the request for information (main statement of objections, Appendix 8). The holding of a number of successive meetings does not justify the conclusion that all the undertakings had agreed to meet regularly from 1977. In any event, the applicant categorically denies having participated in such an agreement.

107 It states that the evidence available shows at the most that it participated in the meetings irregularly from 1981 onwards and more regularly from 1982. The tables established in 1979 setting out "revised targets" for sales volumes for certain undertakings including the applicant do not refute that conclusion. The proposals mentioned in them concern the whole west European polypropylene market and should therefore cover all the producers, irrespective of their participation in the meetings.

108 The applicant further states that as a small producer it was obliged to attend the meetings and that at the meetings it practised a combination of disinformation and mental reservation in order not to weaken its strategy by disclosing sensitive information to its competitors. Moreover, its strategy of abandoning base products in order to move towards special products had the consequence that its interests were different from those of the other producers to such an extent that its participation in the meetings could not have the object of restricting competition.

109 Finally, it states that it was the Commission' s inaction on French and Italian State aid in the polypropylene sector which made the meetings of producers, anxious to face up to the crisis affecting the sector, essential.

110 The Commission does not dispute that the regularity and frequency of the meetings increased during the course of time. They became more structured. The purpose was to implement an overall plan which consisted of increasingly intensive actions intended to modify market forces through cooperation between polypropylene producers in the matter of pricing, sales volume targets and ancillary measures. According to the Commission, this overall plan, which was developed gradually, consisted of a framework agreement providing for a system of institutionalized meetings for the joint elaboration of market strategies and which was supplemented by particular sub-agreements concerning specific measures. The common denominator of this framework agreement subsisted throughout the period covered by the Decision. Huels' commitment in the overall plan or the framework agreement is clear in particular from its regular participation in the periodic meetings.

111 The Commission contends that the applicant' s regular participation in the meetings is apparent from ICI' s reply to the request for information which mentions Huels as one of the regular participants in the meetings. That evidence is corroborated by the fact that the applicant' s name is mentioned in an undated table headed "Producers' Sales to West Europe" (main statement of objections, Appendix 55) setting out for all the polypropylene producers of western Europe sales figures in kilotonnes for 1976, 1977 and 1978 and figures mentioned under the headings "1979 actual" and "revised target". This table, containing business information which had to be kept strictly secret as confidential business information, could not have been drawn up without Huels' participation. The note of a meeting held on 26 and 27 September 1979 (main statement of objections, Appendix 12) indicates that the sales volume targets set out in the previous table were the subject of meetings.

112 The Commission also points out that a policy of disinformation such as that which the applicant claims to have pursued would inevitably have been discovered by the other producers through the cross-checking which they could carry out using the Fides data exchange system; this would have had more serious consequences for Huels than non-participation in the meetings. It points out, secondly, that the cartel covered not only basic products but also special products and that Huels' strategy of specialization did not therefore preclude it from participating in the meetings.

113 Finally, the Commission considers that French and Italian State aid are not factors which could justify the applicant' s participation in the meetings.

(c) Assessment by the Court

114 The Court finds that ICI' s reply to the request for information (main statement of objections, Appendix 8) classifies the applicant, unlike two other producers, amongst the regular participants in the "bosses' " and "experts' " meetings without any limitation in time. That reply must be interpreted as dating the applicant' s participation in the meetings from the beginning of the system of "bosses' " and "experts' " meetings, which was established at the end of 1978 or the beginning of 1979.

115 ICI' s reply to the request for information is borne out by the fact that in various tables found at the premises of ICI, ATO and Hercules (main statement of objections, Appendices 55 to 62) there appear beside the applicant' s name its sales figures for various months and years, whereas, as most of the applicants admitted in their replies to a written question put to them by this Court, it would not have been possible to draw up the tables found at the premises of ICI, ATO and Hercules on the basis of the statistics available under the Fides statistical system. Moreover, in its reply to the request for information, ICI stated, with regard to one of those tables that "the source of information for actual historic figures in this table would have been the producers themselves", which renders invalid the applicant' s argument that all the producers were mentioned in those tables without exception.

116 To that evidence must be added the fact that the applicant' s reply to the request for information is incomplete in so far as it omitted to mention its participation in a meeting in January 1981 the note of which (main statement of objections, Appendix 17) shows that Huels was one of the participants.

117 Moreover, the applicant admitted before the Court that it had participated regularly in the meetings during 1982 and 1983 whereas in its reply to the request for information it stated that it had not participated in the meetings before mid-1982, which is contradicted in particular by the note of the meeting held on 13 May 1982 (main statement of objections, Appendix 24), which clearly indicates that Huels took part in that meeting.

118 In those circumstances the Commission was entitled to consider that the applicant participated regularly in the periodic meetings of polypropylene producers from the end of 1978 or the beginning of 1979 until September 1983.

119 The Commission was therefore entitled to take the view, based on the material provided by ICI in its reply to the request for information, which is borne out by numerous notes of meetings, that the purpose of the meetings was, in particular, to fix target prices and sales volumes. That reply states:

"' Target prices' for the basic grade of each principal category of polypropylene as proposed by producers from time to time since 1 January 1979 are set forth in Schedule ..."; and "A number of proposals for the volume of individual producers were discussed at meetings".

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

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

122 Moreover, the arguments put forward by the applicant to show that its participation in the meetings could not be regarded as offensive, cannot be accepted.

123 The applicant cannot claim that as a small producer it could not afford to stay away from the meetings; after all, since it could have reported them to the Commission and asked it to order them to be brought to an end.

124 The applicant' s strategy of withdrawing from basic products in order to concentrate on special products and the conflict of interests which allegedly arose between itself and the other producers as a result of that strategy are likewise not capable of excusing the applicant' s participation in the meetings since the discussions relating to the fixing of sales volume targets concerned not only basic products but also special products. In its application the applicant stated that in 1983 its total polypropylene sales, all grades included, was 64 349 tonnes for the Federal Republic of Germany, Belgium, France, Great Britain, Italy and the Grand Duchy of Luxembourg, the only western European countries in which it had significant sales of polypropylene, of which only 45% concerned basic products. However, according to various documents, the quota allocated to the applicant for that same year was between 65 000 tonnes, on a market estimated at 1 470 kilotonnes (Saga' s proposal, main statement of objections, Appendix 81) and 77 910 tonnes (5.3% of the same market, proposal of the German producers, main statement of objections, Appendix 83). Consequently, the discussions relating to sales volumes concerned special products as well as basic products.

125 As regards the strategy of disinformation and mental reservation adopted by the applicant at the meetings which, it argues, shows that Huels was not motivated by any anti-competitive intention, it must be observed that since it is not disputed that the applicant took part in those meetings and it is established that their object was in particular to fix price and sales volume targets, the applicant at least gave its competitors the impression that it was participating in the meetings in the same spirit.

126 In those circumstances, it is for the applicant to adduce evidence to show that its participation in the meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit which was different from theirs.

127 The applicant' s arguments founded on its conduct on the market and designed to show that the sole aim of its participation in the meetings was to enable it to obtain information do not constitute evidence proving that it had no anti-competitive intention since those explanations do not show that the applicant had indicated to its competitors that its conduct on the market was independent of what occurred at the meetings. Even on the assumption that its competitors knew this, the mere fact that it exchanged with them information which an independent operator would keep strictly confidential as business secrets is sufficient to show that it acted in an anti-competitive spirit.

128 Finally, it must be stated that if it is considered proved that State aids existed which distorted competition, such aid cannot justify the participation of competing undertakings in meetings having as their object in particular the fixing of price and sales volume targets. Rather than participating in those meetings, the applicant could have requested the Commission at the material time to exercise its powers under Article 93 of the EEC Treaty, which it does not claim to have done.

129 It follows that the Commission has established to the requisite legal standard that the applicant participated regularly in the system of regular meetings of polypropylene producers from the end of 1978 or the beginning of 1979 until September 1983, that the purpose of those meetings was, in particular, to fix price and sales volume targets and that they were part of a system.

C. The price initiatives

(a) The contested decision

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

131 With regard to the first of those price initiatives, the Commission (Decision, point 29) states that it has no detailed evidence of any meetings held or price initiatives undertaken in the first part of 1979. However, a note of a meeting held on 26 and 27 September 1979 shows that a price initiative had been planned based on a raffia grade price of DM 1.90/kg applicable from 1 July and DM 2.05/kg from 1 September. The Commission possesses price instructions from certain producers, which do not include the applicant, which show that those producers had given orders to their national sales offices to apply this price level or its equivalent in national currencies from 1 September and, in the case of most of them, before the trade press had announced the planned increase (Decision, point 30).

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

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

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

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

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

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

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

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

140 According to the Decision (paragraph 40), the applicant also participated in the fifth price initiative of September-November 1982 decided upon at the meeting on 20 and 21 July 1982, the aim of which was to achieve a price of DM 2.00/kg by 1 September and DM 2.10/kg by 1 October, since it was present at the majority if not all of the meetings held between July and November 1982 in which this initiative was planned and monitored (Decision, point 45). At the meeting on 20 August 1982, the increase planned for 1 September was postponed until 1 October, and that decision was confirmed at the meeting on 2 September 1982 (Decision, point 41).

141 Following the meetings of 2