Judgment of the Court of First Instance (First Chamber) of 10 March 1992. - Montedipe SpA v Commission of the European Communities. - Competition - Concepts of agreement and concerted practice - Collective responsibility. - Case T-14/89.



European Court reports 1992 Page II-01155



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1. Competition - Administrative procedure - Hearings - Obligation to disclose the hearing officer' s report to the Advisory Committee and to the Commission - None

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

(EEC Treaty, Art. 83(1))

3. 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)

4. 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 formation of the participants' marketing strategy

(EEC Treaty, Art. 85(1))

5. 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))

6. 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))

7. Acts of the institutions - Reasoning - Duty to state reasons - Scope - Decision implementing the competition rules

(EEC Treaty, Art. 190)

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

(Regulation No 17 of the Council, Art. 50(2))

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

Summary

1. An undertaking challenging a decision applying the competition rules may not rely on the fact that the hearing officer' s report was not sent to the members of the Advisory Committee on Restrictive Practices and Dominant Positions or to members of the Commission. Disclosure of that report to those two bodies is not provided for in any provision. Moreover, the report is in the nature of an opinion for the Commission, which is in no way bound to follow it. Finally, 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

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

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

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

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

Parties

In Case T-14/89,

Montedipe SpA, a company incorporated under Italian law, having its registered office in Milan (Italy), represented by G. Celona, a lawyer with right of audience before the Corte di Cassazione della Repubblica Italiana, P.M. Ferrari, of the Rome Bar, and by G. Aghina and F. Capelli, of the Milan Bar, with an address for service in Luxembourg at the Chambers of G. Margue, 20 Rue Philippe II,

applicant,

v

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

defendant,

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

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(First Chamber),

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

Advocate General: B. Vesterdorf,

Registrar: H. Jung,

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

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

gives the following

Judgment

Grounds

Facts and background to the action

1 This case concerns a Commission decision fining 15 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 (subsequently Montepolimeri SpA and now Montedipe SpA), Hoechst AG, Imperial Chemical Industries PLC and Shell International Chemical Company Limited (called "the big four"), which together account for 64% of the market, Enichem Anic SpA in Italy, Rhône-Poulenc SA in France, Alcudia in Spain, Chemische Werke Huels and BASF AG in Germany and Chemie Linz AG in Austria. Following the expiry of the controlling patents held by Montedison, seven new producers came on stream in western Europe in 1977: Amoco and Hercules Chemicals NV in Belgium, ATO Chimie SA and Solvay et Cie SA in France, SIR in Italy, DSM NV in the Netherlands and Taqsa in Spain. Saga Petrokjemi AS & Co, a Norwegian producer, came on stream in the middle of 1978, and Petrofina SA in 1980. The arrival of the new producers, with nameplate capacity of some 480 000 tonnes, brought a substantial increase in installed capacity in western Europe which for several years was not matched by the increase in demand in that market. This led to low rates of utilization of production capacity, which, however, rose progressively between 1977 and 1983, increasing from 60% to 90%. According to the Decision, supply and demand were roughly in balance from 1982. However, during most of the period covered by the investigation (1977-1983), the polypropylene market was reported to be characterized by either low profitability or substantial losses, owing in particular to the extent of the fixed costs and to the increase in the cost of the raw material, propylene. According to the Decision (point 8), in 1983 Montepolimeri SpA, after taking over the business of Enichem Anic SpA, held 18% of the European polypropylene market, Imperial Chemical Industries PLC, Shell International Chemical Company Limited and Hoechst AG each held 11%, Hercules Chemicals NV slightly below 6%, ATO Chimie SA, BASF AG, DSM NV, Chemische Werke Huels, Chemie Linz AG, Solvay et Cie SA and Saga Petrokjemi AS & Co from 3 to 5% and Petrofina SA about 2%. The Decision states that there was a substantial trade in polypropylene between Member States because each of the EEC producers operating at that time supplied the product in most, if not all, Member States.

3 Montedipe SpA was one of the producers supplying the polypropylene market before 1977 and held controlling patents which expired in most European countries between 1976 and 1978. It was the main producer of polypropylene and its market share was between about 14.2 and 15%.

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

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

- BASF AG ("BASF"),

- DSM NV ("DSM"),

- Hercules Chemicals NV ("Hercules"),

- Hoechst AG ("Hoechst"),

- Chemische Werke Huels ("Huels"),

- Imperial Chemical Industries PLC ("ICI"),

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

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

- Solvay et Cie SA ("Solvay"),

- BP Chimie ("BP").

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

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

Amoco,

Chemie Linz AG ("Linz"),

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

Petrofina SA ("Petrofina"),

Enichem Anic SpA ("Anic").

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

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

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

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

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

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

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

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

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

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

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

"Article 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 2

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

Article 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 4

...

Article 5

..."

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

Procedure

17 These are the circumstances in which, by application lodged at the Registry of the Court of Justice on 6 August 1986, the applicant brought this action seeking annulment of the Decision. Thirteen of the fourteen other addressees of the Decision have also brought actions for its annulment (Cases T-1/89 to T-4/89, T-6/89 to T-13/89 and T-15/89).

18 By a separate document lodged on the same day, Montedipe requested the President of the Court of Justice, under Article 83 of the Rules of Procedure of the Court of Justice, to order the suspension of the operation of the Decision pursuant to Article 185 of the EEC Treaty. By Order of 24 September 1986 the President of the Court of Justice upheld that application on condition that the applicant, within 15 days of the date of notification of the Order, entered into a bank guarantee accepted by the Commission for the payment of the fine imposed by Article 3 of the Decision and any interest for late payment, and reserved the costs (Case 213/86 R Montedipe v Commission [1986] ECR 2623).

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

20 By order of 15 November 1989, the Court of Justice referred this case and the 13 other cases to the Court of First Instance, pursuant to Article 14 of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities (hereinafter referred to as "the Council Decision of 24 October 1988").

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

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

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

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

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

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

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

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

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

Forms of order sought by the parties

30 Montedipe claims that the Court should:

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

(ii) in the alternative, annul the Commission' s decision of 23 April 1986 in so far as it imposes a fine on the applicant;

(iii) in the further alternative, annul the decision of 23 April 1986 in so far as it imposes on the applicant a fine of ECU 11 000 and reduce the fine to a nominal or in any event fair amount, or one which at least takes account of the rules on limitation of actions;

(iv) in any event:

- order the Commission to pay all the costs;

- order the Commission to reimburse the applicant for all the costs incurred during the administrative procedure;

- order the Commission to pay compensation for all the harm associated with the implementation of the contested decision or the establishment of a bank guarantee for its implementation, including interest and an allowance for inflation on the sums paid in implementation or for the establishment of the guarantee.

As a preliminary matter, the applicant requests that by way of measures of inquiry witnesses be heard to establish the accuracy of the accounting data submitted by the applicant in the attached tables concerning its losses on polypropylene production.

Witnesses:

- Montepolimeri' s financial controller during the material period,

- Montepolimeri' s chief accountant during the material period;

- the members of Montepolimeri' s audit committee during the material period.

The Commission claims that the Court should:

(i) dismiss the application;

(ii) order the applicant to pay the costs.

Substance

31 It is necessary to examine, first, the applicant' s grounds of challenge relating to a breach of the rights of the defence allegedly committed by the Commission in so far as it (1) lacked impartiality in its preparation of the Decision, (2) altered its original objections and (3) based the Decision on documents which were not part of the proceedings; secondly, the grounds of challenge relating to proof of the infringement concerning (1) the findings of fact made by the Commission and (2) the application to those facts of Article 85(1) of the EEC Treaty whereby it is contended that the Commission (A) did not correctly define the infringement, (B) did not correctly assess the anti-competitive effect, (C) did not correctly assess how trade between Member States was affected and (D) failed to take into account a number of elements of justification; thirdly, the grounds of challenge based on a breach of the principle of freedom of assembly; fourthly, the grounds of challenge relating to the reasoning of the Decision; and, fifthly, the grounds of challenge relating to the determination of the fine, which is alleged to be (1) partially time-barred, (2) disproportionate to the duration of the alleged infringement and (3) disproportionate to the gravity of the alleged infringement.

The rights of the defence

1. Lack of impartiality in the preparation of the Decision

32 The applicant contends that the Commission failed in its duty to act objectively and displayed pre-conceived ideas in this case. The Commission refused from the start to contemplate the possibility that the meetings of polypropylene producers could have had a purpose other than the implementation of a cartel. Accordingly, it took into account only the factors which supported that view and disregarded those which opposed it or did not support it. That is confirmed by the fact that before the formal adoption of the Decision the Commission had already given the press information on it.

33 It adds that a comparison of the minutes of the hearings with the Decision shows clearly that significant statements made by the hearing officer and the Commission' s representatives are not mentioned in the Decision. That is true with regard to the clarity with which the Commission formulated its objections, the possibility that the Commission might abandon certain of them, the role of the target prices and the existence of vigorous competition during the period under examination. It is for that reason that in its reply the applicant asks the Court to examine the hearing officer' s report in order to determine whether the Commission intentionally disregarded the factors which told against its view.

34 The applicant concludes that the Commission' s lack of objectivity is further confirmed by the fact that it was only on a second reading that the draft decision submitted by the Member of the Commission responsible for competition matters could be adopted by the Commission.

35 The Commission denies that it approached the case with preconceived ideas and displayed partiality in selecting the evidence favourable to its argument. It states that it is not true that it divulged the contents of the Decision in advance, and points out that the information which appeared in the press could just as well have been provided by the undertakings themselves. It considers that in any event that is not a ground for annulment of the Decision (judgments of the Court of Justice in Case 27/76 UBC v Commission [1978] ECR 207, paragraph 286, and Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie v Commission [1975] ECR 1663, paragraphs 91 and 103).

36 As regards the remarks made by the hearing officer, it argues that the Decision need not reflect the views expressed by each of the Commission' s officials during the administrative procedure. It adds that the application for production of the hearing officer' s report was rejected by the Court of Justice in its order of 11 December 1986 in Case 212/86 R ICI v Commission (not published in the Reports of Cases). It adds that in any event this plea is inadmissible since it was raised for the first time at the stage of the reply.

37 Finally, the Commission states that the fact that the Decision was not adopted by the Commission at its fist reading cannot in any event constitute evidence of lack of objectivity on the part of the Commission or the lack of foundation for the Decision.

38 The Court notes first of all that the request made by the applicant to the Court at the stage of the reply that it should examine the hearing officer' s report constitutes a new application which must be declared inadmissible under Article 44(1) of the Rules of Procedure of the Court of First Instance and Article 40(1) of the Rules of Procedure of the Court of Justice.

39 The Court points out, in relation to the hearing officer, that the relevant provisions of his terms of reference, which are 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."

40 It is clear from the very wording of the hearing officer' s terms of reference that it is not mandatory for his report to be passed on to either the Advisory Committee or the Commission. There is no provision which provides for the report to be forwarded 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 direct to the Member of the Commission with special responsibility for competition (Article 6), who himself may, 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.

41 Consequently, the applicant cannot derive an argument from the fact that the hearing officer' s report was not transmitted to the members of the Advisory Committee or those of the Commission. On this question the Court of Justice has held that the hearing officer' s report is in the nature of an opinion for the Commission, which is in no way bound to follow it, and that the report does not therefore constitute a decisive factor which must be taken into account by the Community court in performing its judicial review (order of 11 December 1986 in Case 212/86-R, cited above, paragraphs 5 to 8). Respect for the rights of the defence is ensured to the requisite legal standard if the various bodies involved in drawing up the final decision have been properly informed of the arguments put forward by the undertakings in response to the objections notified to them by the Commission and to the evidence presented by the Commission in support of those objections (judgment of the Court of Justice in Case 322/81 Nederlandsche Banden-Industrie-Michelin NV v Commission [1983] ECR 3461, paragraph 7 at p. 3498).

42 Since the hearing officer' s report has no decisive nature which the Community courts must take into account in exercising their review jurisdiction, a fortiori the Commission is in no way obliged to align itself with the observations which may have been made by the hearing officer or other representatives of the Commission at the hearing and which the Members of the Commission may have been informed of through the minutes of the hearing.

43 Furthermore, it should be observed that even if the information concerning the Decision which was divulged before its adoption was provided to the press by the Commission there is nothing to justify the conclusion that the content of the Decision would have been different if that information had not been made public.

44 Moreover, the fact that the Decision was not adopted on its first reading cannot in any event be regarded as evidence of any lack of objectivity on the part of the Commission.

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

2. Alteration of the original objections

46 The applicant maintains that in the Decision the Commission upheld objections which were not made in the statements of objections notified to it. In the latter the Commission proceeded on the basis that the addressees had fixed and observed prices on which they had agreed or had implemented a concerted practice. In the letter which it sent on 29 March 1985 to the addressees of the statement of objections the Commission then stated, in reliance on the judgments of the Court of Justice in Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraphs 111 to 114, and Joined Cases 209 to 215 and 218/78 Heintz van Landewyck v Commission [1980] ECR 3125, paragraph 86, that it was not necessary to define the objections legally as concerning agreements or concerted practices. Finally, in the Decision the Commission now states that the conduct of the undertakings in question contained the elements making up a true "agreement" within the meaning of Article 85, except as regards certain marginal aspects, which have the character of a "concerted practice".

47 The Commission replies that it is clear from the case-law of the Court of Justice (judgments in Case 41/69, cited above, at paragraphs 91 to 93, and Joined Cases 209 to 215 and 218/78, cited above, at paragraph 68) that the Decision is not required to be a replica of the statement of objections and that it was entitled to re-draft or supplement its arguments. It states, however, that in the Decision it did not change its assessment of the nature of the cartel.

48 This Court finds that the legal assessment made by the Commission in the Decision, as interpreted by the applicant, is in no way new since it was already contained in the general statement of objections addressed to the applicant and the other undertakings to which the Decision was addressed, in particular in points 1 and 128. Point 1 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 co-ordinated their sales and pricing policy on a continuing and regular basis by setting and implementing 'target' 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 point 128 states that:

"To the extent that the continuing collaboration between the parties in the framework of the meetings may, in relation to some questions and at some periods, have lacked the degree of precision required to constitute an 'agreement' properly called, there was still a concerted practice."

49 That view was repeated in the letter sent by the Commission to the addressees of the statement of objections on 29 March 1985, which states that:

"The measure of consensus on pricing and volume ... leads to the conclusion that the unlawful collusion between the participants in the meetings can properly be categorized as 'agreement' or 'agreements' in the sense of Article 85(1), which had both the object and the effect of restricting competition. ... There may be cases ... where there are elements of both 'agreements' and 'concerted practices' . ... Thus in the present case some of the arrangements of the producers attending meetings may have fallen short of actual detailed 'agreement' but they nevertheless still took certain steps with the intention of co-ordinating their commercial policies. ... [T]he particular manifestation of collusion might be considered a concerted practice. ... The Commission is of the opinion that in substance little turns on the precise form which the alleged collusion took, and that the producers participated in a prohibited cartel which presents the aspects of both 'agreements' and 'concerted practices' ."

The purpose of the letter of 29 March 1985 was to supplement the general statement of objections as regards the legal classification of the infringement, since it states:

"By letter dated 28 September 1984 the legal representatives of a number of the polypropylene producers involved in the present proceedings maintained that in its objections the Commission had not clearly expressed the legal position against which the producers had to defend themselves and had exacerbated the situation by shifting its position during the hearing. ... I do not accept that argument. The facts were treated in extenso in the objections and the legal issues, although succinctly expressed, were clearly delineated. ... [F]or the avoidance of any doubt, and at the risk of repetition, I will set out the following matters for your consideration" (this is followed by eight pages of explanation, including two on the legal classification of the infringement)

and the letter closes in the following terms:

"You may submit your written observations on the matters covered by this letter within six weeks from the date of receipt. A further oral hearing is foreseen in the near future for three undertakings which were not in a position to make their presentation in November, and if you wish to attend, the opportunity may be given for you then to expand your written comments not only on this matter but also on my separate letter to you of today' s date dealing with certain other issues."

50 Consequently, the Commission at most re-drafted and supplemented its arguments in the Decision, but did not alter its original objections.

51 This ground of challenge must therefore be dismissed.

3. Allegation that the Decision was based on material extraneous to the proceedings

52 The applicant observes in its reply that at a press conference representatives of the Commission justified the Decision and the amount of the fine on the basis that during the material period the undertakings had benefited from an increase in prices of between 15 and 40%. The applicant concludes from that that the Decision was adopted on that basis, on the grounds of factors which did not appear in the statement of objections, the case file or the Decision itself. It considers that in the absence of those factors at least the amount of the fines should have been lower.

53 The Commission considers that that is a new plea in law raised for the first time at the stage of the reply, and adds that in any event that argument has already been rejected by the Court of Justice in its order of 11 December 1986 (Case 212/86 R ICI v Commission, not published in the Reports of Cases), in which it refused to order production of the Commission' s file.

54 This Court considers that the statements made at the press conference following the adoption of the Decision, to the effect that the infringement resulted in an increase of between 15 and 40% in the general level of prices, contradict the grounds set out in the Decision itself. Accordingly, they may be used only in order to show that the Decision is based in reality on grounds other than those stated, which would constitute a misuse of powers (see the order of the Court of Justice in Case 212/86 R ICI v Commission, cited above). The only way in which this Court can determine whether there was a misuse of powers in this case is to examine whether the grounds stated for the Decision support its operative part, in particular as regards the amount of the fine. This plea must therefore be considered with the other questions relating to the proof of the infringement and the determination of the fine.

Proof of the infringement

55 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.

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

1. The findings of fact

A. The floor-price agreement

(a) The contested decision

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

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

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

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

(b) Arguments of the parties

61 The applicant maintains that the Commission puts forward only one piece of evidence to support the allegation that an agreement on floor prices was concluded in 1977, namely a handwritten note made by Hercules' s marketing director (main statement of objections, Appendix 2). That document shows at most that there were contacts between six or seven producers concerning the determination of a price level which could cover production and sales costs so as to attenuate the serious financial difficulties faced by those undertakings at the time.

62 Those contacts cannot, it says, be regarded as proof of the existence of a structured and detailed agreement, and certainly not of a plan setting out in detail the tasks allocated to each participant in the agreement.

63 The applicant adds that those contacts cannot be linked to the meetings which subsequently took place since the concept of floor prices which was discussed in the course of those contacts was not taken up in the later meetings.

64 The applicant derives further support from the fact that the prices discussed during the 1977 contacts were never achieved on the market.

65 The Commission replies that the applicant has put forward no arguments challenging the content of the Hercules note, which, describing the floor-price agreement (main statement of objections, Appendix 2), states that the "major producers made agreement".

66 It adds that that note must be viewed in the context of the contacts maintained by the producers at the time, of which Shell and ICI have acknowledged the existence.

67 The Commission further states that the producers were each able to determine their own profitability threshold and therefore had no reason to consult each other on that issue.

(c) Assessment by the Court

68 The Court observes that the text of the note made by the Hercules employee to which the Commission refers is clear and unambiguous. It states:

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

[There then follows a list of prices for three grades of polypropylene in four national currencies, including DM 1.25/kg for raffia.]

69 It is to be observed that, faced with that evidence, the applicant has put forward nothing to weaken the evidentiary value given by the Commission to that note. Although the word "agreement" may in some cases refer to an identity of views it should be observed that in the note it is part of the expression "made agreement", which can only mean "concluded an agreement" and thus refers to something more than identity of views, a common intention among the applicant and three other producers on floor prices.

70 Nor does the fact that the agreed floor prices could not be achieved tell against the applicant' s participation in the floor-price agreement, since even if that fact is assumed to be established, it would at the most tend to show that the floor prices were not implemented, not that they were not agreed. However, far from asserting that the floor prices were achieved, the Decision (point 16, last paragraph) states that the price of raffia had fallen to around DM 1.00/kg in November 1977.

71 Moreover, the Court considers that floor prices are no different in nature from price targets, which, according to the Decision, were subsequently fixed by the polypropylene producers.

72 It follows that the Commission has established to the requisite legal standard that in mid-1977 a common purpose emerged among several polypropylene producers, including the applicant, concerning the fixing of floor prices.

B. The system of regular meetings

(a) The contested decision

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

74 According to the Decision (point 18, first paragraph), at least six meetings were held during 1978 between senior managers responsible for the overall direction of the polypropylene business of some of the producers ("bosses"). This system soon evolved to include a lower tier of meetings attended by managers possessing more detailed marketing knowledge ("experts") (ICI' s reply to the request for information under Article 11 of Regulation No 17, main statement of objections, Appendix 8). The Decision asserts that the applicant was a regular participant at those meetings at least until the end of September 1983 (point 105, fourth paragraph) and that it held the chairmanship until August 1982 (point 19, second paragraph).

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

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

(b) Arguments of the parties

77 The applicant does not deny having participated in the periodic meetings of polypropylene producers. However, it argues that the Commission has misrepresented the scope of the meetings by regarding them as evidence of an agreement or concerted practice. It states that the sole purpose of the meetings was to discuss the catastrophic state of the market.

78 The applicant asserts that the Commission based itself blindly on ICI' s notes of the producers' meetings in order to support its view that price and quota agreements were concluded during the meetings. These, however, were internal notes containing the personal remarks and assessments of their author, which were neither known to nor approved by the other participants.

79 The Commission, for its part, states that the meetings in which the applicant took part formed part of a system which became more rigidly structured as time went on.

80 It states that the purpose of the meetings was to decide on price initiatives, to agree on sales volume targets, to compare market shares and to adopt accompanying measures such as the "account leadership" system. The purpose was thus to agree on the harmonization of the sales strategies of the participants in the meetings.

81 The Commission adds that the applicant puts forward no valid reason to doubt the reliability of the documents produced by the Commission, in particular the notes of meetings drawn up by employees of ICI.

(c) Assessment by the Court

82 The Court notes that the applicant does not deny its participation in the periodic meetings of polypropylene producers and that it must therefore be held that it participated in all the meetings which the Commission alleges to have been held. GROUNDS CONTINUED UNDER DOC.NUM : 689A0014.1

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

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

and

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

84 The Court observes that the contents of the notes obtained from ICI are confirmed by various documents, such as a number of tables relating to the sales volumes of the various producers and price instructions broadly corresponding in their amount and date of entry into force to the target prices mentioned in those meeting notes. Similarly, the replies of the various producers to the requests for information addressed to them by the Commission bear out in the aggregate the contents of those notes.

85 Consequently, the Commission was able to take the view that the meeting notes found at the premises of ICI reflected fairly objectively what went on at those meetings which were chaired, from August 1982 onwards, by different members of ICI' s staff, which increased the need for them properly to inform those members of ICI' s staff who did not attend particular meetings about what had transpired at them by making notes of them.

86 In those circumstances it is for the applicant to provide another explanation of the subject-matter of the meetings in which it participated, by putting forward specific evidence such as notes taken by its own employees at meetings which they attended or the testimony of those persons. It must be observed that the applicant has not put forward or offered to put forward such material before the Court.

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

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

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

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

91 It follows that the Commission has established to the requisite legal standard that the applicant participated regularly in the regular meetings of polypropylene producers between the end of 1977 and September 1983, that until August 1982 the meetings were chaired by members of the applicant' s staff, that the purpose of those meetings was, in particular, to set price and sales volume targets and that they were part of a system.

C. The price initiatives

(a) The contested decision

92 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.

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

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

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

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

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

98 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.

99 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%.

100 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 Monte 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).

101 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.

102 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).

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

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

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

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

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

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

109 The Decision (point 49) states that after the meeting of 20 May 1983, ICI, DSM, BASF, Hoechst, Linz, Shell, Hercules, ATO, Petrofina and Solvay issued instructions to their sales offices to apply from 1 July a price table based on DM 1.85/kg for raffia. It goes on to state that only fragmented price instructions were obtained from ATO and Petrofina but these confirmed that these producers were implementing the new price levels, somewhat belatedly in the case of Petrofina and Solvay. Monte, on the other hand, had already on 17 May instructed its sales offices to apply an increase to come into force in June and to be carried on in July. The Decision concludes that, with the exception of Huels, for which the Commission found no price instructions for July 1983, all the producers which had attended the meetings or had promised support for the new price target of DM 1.85/kg are shown to have given instructions to implement the new price.

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

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

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

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

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

(b) Arguments of the parties

115 The applicant comprehensively denies participating in all the price initiatives mentioned in the Decision.

116 It states first of all that ICI' s notes of the meetings cannot be sufficient to prove the existence of agreements within the meaning of Article 85(1) of the EEC Treaty and that in any event those notes contain frequent allusions to the absence of consensus between the producers present, as in the case of the notes of the meetings of 2 September, 21 September and 2 November 1982 or the meetings of 27 May and 15 June 1981, or the notes of the bilateral meetings between certain producers (main statement of objections, Appendices 29, 30, 32, 64, 95 and 99 respectively).

117 The applicant goes on to state that the absence of price agreements is confirmed by the fact, established by an audit carried out by Coopers & Lybrand, an independent firm of accountants, that almost all the sales of the different producers, in particular the applicant, were made at prices significantly below both the target prices alleged to have been agreed upon by the producers and the applicant' s price instructions, which were internal theoretical objectives intended for its own sales offices.

118 It asserts that it has thus set out an impressive set of facts which show that it never considered itself bound by the results or proposals arrived at in the meetings and that it determined its own conduct on the market in complete independence.

119 The applicant considers that by inferring from the fact that new price objectives were sent out after the meetings that those objectives had been set in the meetings the Commission applied "post hoc" reasoning and disregarded the case-law of the Court of Justice (Joined Cases 29 and 30/83 CRAM and Rheinzink v Commission [1984] ECR 1679). In so doing it also disregarded basic concepts of economics, such as the fact that the prices contemplated by the producers could differ only slightly because of the constant - and virtually identical for all of them - increase in production costs or the fact that smaller undertakings follow the prices of the leading undertaking.

120 It argues that the price initiatives were the result not of the meetings but of the actual situation which the producers faced. The sole objective was a balance between costs and revenues, and it could be achieved only by attempting to increase prices. If those attempts were repeated, it was because on each occasion they were rejected by movements in the market. None of the undertakings had any interest in increasing its market share, since that merely increased its losses. In those circumstances there was no longer any competition on the market and the rules intended to safeguard competition under normal circumstances could no longer apply.

121 It adds that although each undertaking must determine its own conduct independently, that does not mean that independence must necessarily entail diversity. It therefore denies that the parallelism in the internal price instructions issued by the producers has any probative value.

122 Finally, it submits that the producers were conscious of their complete inability to control market forces, which led them to assess the possibilities offered by the market in an identical manner.

123 The Commission points out that it was on the basis of conclusive documents that it established the existence of the producers' commitment to the price initiatives and Monte' s participation in that commitment. The allusions to the absence of consensus concern producers other than Monte and mention recriminations directed at them show the existence of commitments and prove in particular Monte' s commitment.

124 It adds that the fact that the prices obtained were different from the target prices is not conclusive inasmuch as a common strategy for negotiation with customers itself restricts competition, because even if it does not guarantee that the prices actually invoiced will be identical it defines the point of departure for negotiations and thus indirectly affects their result.

125 The Commission observes that it is not true to say that the Decision is based on the simultaneity and similarity of price instructions among themselves and with the target prices. That similarity in fact merely confirms the documentary evidence. The "price leadership" argument raised by the applicant is worthless for the same reason.

126 It disputes the argument by which Monte seeks to show that the conduct of the undertakings can be attributed to the market situation and was not the result of the meetings between competing producers. If, in a situation of over-production, a single undertaking increases its prices it will make no sales and will be obliged to reverse its decision. Accordingly, it can hope to increase its prices only if it ensures that its competitors will try to do the same.

127 The Commission does not deny that the target price was different from the price which customers were actually charged or that the situation of the market influenced negotiations with customers. The fact that remains that mutual agreement to take a certain price as the point of departure for negotiations sets the framework for those negotiations and results in actual prices which are different from those which would have resulted from negotiations without any prior commitment.

(c) Assessment by the Court

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

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

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

130 In this regard, it must be noted that the applicant has raised two arguments to show that it did not, at the regular meetings of polypropylene producers, subscribe to the price initiatives agreed upon. It argues first that it took no account of the outcome of the meetings in determining its conduct on the market as regards prices, the entirely competitive nature of which is clear from the Coopers & Lybrand audit, and, secondly, that the economic context in which its price instructions were issued explains their correspondence to those of the other producers.

131 Neither of those arguments can be accepted as evidence capable of corroborating the applicant' s assertion that it did not subscribe to the agreed price initiatives. Even if the first argument were supported by the facts it would not gainsay the applicant' s participation in the fixing of price targets at the meetings but would at most tend to show that the applicant did not put into effect the results of those meetings. Indeed, the Decision in no way asserts that the applicant charged prices which always corresponded to the price targets agreed upon at the meetings, which shows that the contested decision does not rely on the applicant' s implementation of the outcome of meetings in order to establish that it participated in the fixing of those price targets.

132 In any event, the applicant cannot effectively argue that its price instructions were purely internal since, although they were indeed purely internal inasmuch as they were sent by headquarters to the sales offices, they were nevertheless sent with a view to their being carried out and therefore in order to produce directly or indirectly external effects, which negates their internal character.

133 As regards the second argument put forward by the applicant, the Court considers that the economic context of the price initiatives cannot explain the manner in which the price instructions issued by the different producers correspond to each other and to the price targets set at the producers' meetings. The identical nature of the constraints faced by the various producers and the situation of market crisis cannot explain the fact that their price instructions, expressed in different national currencies, were identical, since the identical nature of those constraints was restricted to certain factors of production, such as the price of raw materials, and did not relate to general expenses, wage costs or tax rates, which meant that the profitability threshold for the various producers was significantly different. That is shown, for example, by the note of the meeting of the "European Association for Textile Polyolefins" of 22 November 1977 (main statement of objections, Appendix 6), according to which in order to reach the profitability threshold Hoechst sought a price of DM 1.85/kg, ICI a price of DM 1.60/kg, Rhône-Poulenc a price of FF 3.50 and Shell a price of DM 1.50/kg.

134 Nor can the identical nature of those constraints explain the virtual simultaneity of the price instructions issued by the applicant and by the other producers.

135 Moreover, there can be no question of any form of "price leadership" on the part of a producer, since the Commission has proved to the requisite legal standard that this producer participated with others in consultation on prices.

136 It should be added that the Commission was fully entitled to deduce from ICI' s reply to the request for information (main statement of objections, Appendix 8), in which it is stated that:

"' 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 ..."

that those initiatives were part of a system of fixing target prices.

137 It follows that the Commission has established to the requisite legal standard that the applicant was one of the polypropylene producers amongst whom there emerged common intentions concerning the price initiatives mentioned in the Decision, that those initiatives were part of a system and that the effects of those price initiatives continued until November 1983.

D. The measures designed to facilitate the implementation of the price initiatives

(a) The contested decision

138 In the Decision (Article 1(c) and point 27; see also point 42) the Commission asserts that the applicant agreed with the other producers various measures designed to facilitate the implementation of target prices, such as temporary restrictions on output, exchanges of detailed information on their deliveries, the holding of local meetings and, from the end of September 1982, a system of "account management" designed to implement price rises to individual customers.

139 As regards the system of "account management", whose later more refined form, "account leadership", dates from December 1982, the applicant, like all the producers, was nominated coordinator or "leader" for at least one major customer, in respect of whom it was charged with secretly coordinating its dealings with suppliers. Under that system, customers were identified in Belgium, Italy, Germany and the United Kingdom and a "coordinator" was nominated for each of them. In December 1982, a more general adoption of the system was proposed, with an account leader named for each major customer who would guide, discuss and organize price moves. Other producers which had regular dealings with the customer were known as "contenders" and would cooperate with the account leader in quoting prices to the customer in question. In order to "protect" the account leader and the contenders, any other producers approached by the customers were to quote prices higher than the desired target. Despite ICI' s assertions, according to which the scheme collapsed after only a few months of partial and ineffective operation, the Commission states in the Decision that a full note of the meeting held on 3 May 1983 shows that at that time detailed discussions took place on individual customers, on the prices offered or to be offered to them by each producer, and on the volumes supplied or on order.

140 The Decision (point 20) also asserts that Monte attended local meetings held to discuss implementation on a national level of arrangements agreed in the full sessions.

(b) Arguments of the parties

141 The applicant submits that it did not participate in the "account leadership" system and that no such system was ever implemented, even if it was discussed. On the basis of a study drawing on the notes of the meetings of 2 September and 2 December 1982 (main statement of objections, Appendices 29 and 33) it states that its sales to customers which are mentioned in those notes, whose "account leader" it is said to have been, accounted for only 0 to 18% of their purchases. In those circumstances it would have been impossible for it to play the role of "account leader" in relation to those customers.

142 The Commission refers to the evidence mentioned in the Decision in order to assert that the participants in the meetings agreed on the establishment of the "account leadership" system, and even if it is true that the system was only imperfectly implemented the fact remains that it was adopted at the meetings.

(c) Assessment by the Court

143 The Court considers that point 27 of the Decision is to be interpreted in the light of the second paragraph of point 26, not as contending that each of the producers committed itself individually to adopt all the measures mentioned there but as asserting that at various times those producers adopted at those meetings together with the other producers a set of measures mentioned in the Decision and designed to bring about conditions favourable to an increase in prices, in particular by artificially reducing the supply of polypropylene, and that the implementation of the various measures involved was by common agreement shared between the various producers according to their specific situation.

144 It must be concluded that in participating in the meetings during which that set of measures was adopted (in particular those of 13 May, 2 and 21 September 1982 (main statement of objections, Appendices 24, 29, 30)), the applicant subscribed to it, since it has not adduced any evidence to prove the contrary. In this regard, the adoption of the system of "account leadership" is clear from the following passage appearing in the record of the meeting of 2 September 1982:

"about the dangers of everyone quoting exactly DM 2.00 A.' s point was accepted but rather than go below DM 2.00 it was suggested & generally agreed that others than the major producers at individual accounts should quote a few pfs higher. Whilst customer tourism was clearly to be avoided for the next month or two it was accepted that it would be very difficult for companies to refuse to quote at all when, as was likely, customers tried to avoid paying higher prices to the regular suppliers. In such cases producers would quote but at above the minimum levels for October".

Similarly, at the meeting of 21 September 1982, in which the applicant participated, it was stated: "In support of the move, BASF, Hercules and Hoechst said they would be taking plant off line temporarily" and at the meeting of 13 May 1982 Fina stated: "Plant will be shut down for 20 days in August".

145 As regards the question of "account leadership", the Court finds that it is clear from the notes of the meetings of 2 September 1982 (main statement of objections, Appendix 29), 2 December 1982 (main statement of objections, Appendix 33) and of spring 1983 (main statement of objections, Appendix 37), which were all attended by the applicant, that during those meetings the producers present at them agreed to that system.

146 It should be added that the study produced by the applicant concerns only seven customers for which the Commission alleges that Monte was designated "account leader", Eurofil, Seal, Sisal, T. Radici, Polymekon, Its Artea and Seeber, although its name appears alongside those of nine other customers, that is to say, in the table attached to the note of the meeting of 2 September 1982, Baumhueter, De Magistris, Uco, Bexer, Alfa and Bellotex and, in the table attached to the note of the meeting of 2 December 1982, Sekisni, Campanini, De Magistris and Sergal. Consequently, the Court considers that the excessively limited scope of the study means that the conclusions which the applicant seeks to draw from it cannot be supported.

147 The implementation, at least in part, of this system is evidenced by the note of the meeting of 3 May 1983 (main statement of objections, Appendix 38), in which it is stated inter alia:

"Belgium. A long discussion took place on the 5 Belgian A/Cs. (...) Generally speaking raffia prices appeared to be from [BFr] 32.50 to 34.50 and fibre prices from 37 to 37.50. The point was made that some other accounts were lower than the target customers. It was agreed that contenders would quote BFr 36 in May with non-contenders offering 38".

"Denmark. A long discussion took place on Jacob Holm who is asking for quotations for the 3rd quarter. It was agreed not to do this and to restrict offers to the end of June. April/May levels were at Dkr 6.30 (DM 1.72). Hercules were definitely in and should not have been so. To protect BASF, it was agreed that CWH[uels] + ICI would quote Dkr 6.75 from now to end June (DM 1.85)..."

Such implementation is confirmed by ICI' s reply to the request for information (main statement of objections, Appendix 8), in which it is stated in relation to the latter passage:

"In the Spring of 1983 there was a partial attempt by some producers to operate the 'Account Leadership' scheme ... Since Hercules had not declared to the 'Account Leader' its interest in supplying Jacob Holm, the statement was made at this meeting in relation to Jacob Holm that 'Hercules were definitely in and should not have been so' . It should be made clear that this statement refers only to the Jacob Holm account and not to the Danish market. It was because of such action by Hercules and others that the 'Account Leadership' scheme collapsed after at most two months of partial and ineffective operation. The method by which Huels and ICI should have protected BASF was by quoting a price of DK 6.75 for the supply of raffia grade polypropylene to Jacob Holm until the end of June."

148 That implementation is further corroborated by the note of a meeting in spring 1983 (main statement of objections, Appendix 37) which includes, under the heading "Key Accounts", figures for the applicant' s deliveries to various undertakings for which it had been designated "account leader" either at the meeting of 2 September 1982 or at that of 2 December 1982, such as Baumhueter, Campanini, Polymekon, Eurofil and Bellotex.

149 The Court further observes that the applicant does not specifically deny having taken part in the decision to adopt other measures designed to facilitate the implementation of the price initiatives.

150 It follows from the foregoing that the Commission has established to the requisite legal standard that the applicant was one of the polypropylene producers amongst whom there emerged common intentions concerning the measures designed to facilitate the implementation of the price initiatives mentioned in the Decision.

E. Target tonnages and quotas

(a) The contested decision

151 According to the Decision (point 31, third paragraph), it was "recognized that a tight quota system [was] essential" at the meeting held on 26 and 27 September 1979, the note of which refers to a scheme proposed or agreed in Zurich to limit monthly sales to 80% of the average achieved during the first eight months of the year.

152 The Decision (point 52) further points out that before August 1982 various schemes for sharing the market were applied. While percentage shares of the estimated available business had been allocated to each producer, there was not at this stage any systematic limitation in advance of overall production. Thus, estimates of the total market had to be revised on a rolling basis and the sales (in tonnes) of each producer had to be adjusted to fit the percentage entitlement.

153 Volume targets (in tonnes) were set for 1979 based in part at least on sales in the preceding three years. Tables found at the premises of ICI show the "revised target" for each producer for 1979 compared with actual tonnage sales achieved during that period in Western Europe (Decision, point 54).

154 By the end of February 1980, volume targets - again expressed in tonnage terms - had been agreed for 1980 by the producers, based on an expected market of 1 390 000 tonnes. According to the Decision (point 55), a number of tables showing the "agreed targets" for each producer for 1980 were