Judgment of the Court of First Instance (First Chamber) of 17 December 1991. - DSM NV v Commission of the European Communities. - Competition - Concepts of agreement and concerted practice - Collective responsibility. - Case T-8/89.



European Court reports 1991 Page II-01833



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

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

(EEC Treaty, Art. 85(1) )

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

(EEC Treaty, Art. 85(1) )

3. Competition - Cartels - Prohibition - Agreements which continue 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 formulation 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. Acts of the institutions - Reasoning - Obligation - Scope - Decision implementing the competition rules

(EEC Treaty, Art. 190)

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

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

Summary

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

2. 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 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. 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, where its decision is one implementing the competition rules, to discuss all the issues of fact and of law raised by every party during the administrative proceedings.

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

Parties

In Case T-8/89,

DSM N.V., a company incorporated under Dutch law, having its registered office at Heerlen (Netherlands), represented by I.G.F. Cath, of the Maastricht Bar, with an address for service in Luxembourg at the Chambers of L.H. Dupong, 14a Rue des Bains,

applicant,

v

Commission of the European Communities, represented by A. McClellan, Principal Legal Adviser, acting as Agent, assisted by T.R. Ottervanger, of the Rotterdam Bar, with an address for service in Luxembourg at the office of R. Hayder, a national civil servant seconded to its Legal Service, Wagner Centre, Kirchberg,

defendant,

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

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(First Chamber),

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

Advocate General: B. Vesterdorf,

Registrar: H. Jung,

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

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

gives the following

Judgment

Grounds

FACTS AND BACKGROUND TO THE ACTION

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

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

3 DSM N.V. is one of the seven new producers which appeared on the market in 1977. Its position on the polypropylene market was that of a medium-sized producer whose market share was between 3.1 and 4.8%.

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

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

BASF AG ("BASF"),

DSM N.V. ("DSM"),

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

Hoechst AG ("Hoechst"),

Chemische Werke Huels ("Huels"),

Imperial Chemical Industries PLC ("ICI"),

Montepolimeri SpA, now Montedipe ("Monte"),

Shell International Chemical Company Limited ("Shell"),

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

BP Chimie ("BP").

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

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

Amoco,

Chemie Linz AG ("Linz"),

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

Petrofina S.A. ("Petrofina"),

Enichem Anic SpA ("Anic").

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

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

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

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

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

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

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

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

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

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

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

"Article 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 2

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

Article 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 4

...

Article 5

..."

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

PROCEDURE

17 These are the circumstances in which, by application lodged at the Registry of the Court of Justice on 31 July 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, T-7/89 and T-9/89 to T-15/89).

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

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

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

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

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

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

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

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

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

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

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

FORMS OF ORDER SOUGHT BY THE PARTIES

29 The company DSM claims that the Court should:

(i) annul or declare void, in its entirety or partially, the Commission' s Decision of 23 April 1986 (IV/31.149 - Polypropylene) which is the subject of this action;

(ii) annul or reduce the fine imposed on the applicant by that decision;

(iii) order all steps and measures that the Court [the Court of First Instance] considers appropriate;

(iv) order the Commission to pay the costs.

The Commission claims that the Court should:

(i) dismiss the application;

(ii) order the applicant to pay the costs.

SUBSTANCE

30 The Court considers that it is necessary to examine, first, the applicant' s grounds of challenge relating to a breach of the rights of the defence allegedly committed by the Commission in so far as (1) it failed to disclose to the applicant documents on which it based the Decision, and (2) in basing its decision on insufficient evidence it reversed the burden of proof; secondly, the grounds of challenge relating to proof of the infringement, which concern (1) the findings of fact made by the Commission and (2) the application to those facts of Article 85(1) of the EEC Treaty whereby it is contended that the Commission (A) did not correctly define the infringement, (B) did not correctly assess the restrictive effect on competition and (C) did not correctly assess how far trade between Member States was affected; thirdly, the grounds of challenge relating to the reasoning of the Decision; and, fourthly, the grounds of challenge relating to the determination of the fine, which is alleged to be (1) disproportionate to the duration of the infringement and (2) disproportionate to the gravity of the alleged infringement.

THE RIGHTS OF THE DEFENCE

1. Non-disclosure of documents with the statement of objections

31 The applicant contends that when the Commission notified it of the statement of objections it did not send it documents referred to in 14 points of the Decision and that the Commission thus gave it no opportunity to explain their contents. The documents concerned consist of a note made by a Hercules executive relating to the meeting of 13 May 1982 (Decision, point 15b; see also point 37), a document allegedly found at the premises of Solvay dated 6 December 1977 (Decision, point 16, penultimate paragraph), Shell' s reply to the statement of objections (Decision, point 17), two sets of minutes of Shell internal meetings held on 5 July 1979 (Decision, point 29, second paragraph) and 12 September 1979 (Decision, point 31), an internal Solvay document (Decision, point 32), a reminder sent by Solvay to its sales offices on 17 July 1981 (Decision, point 35), articles published in the trade press at the end of 1981 (Decision, point 36), an internal ICI note relating to the "firm climate" (Decision, point 46), Shell documents relating to the United Kingdom and France and a Shell document headed "PP W. Europe-Pricing" and "Market quality report" (Decision, point 49), various ATO documents, in particular an internal note of 28 September 1983 (Decision, point 51), tables found at the premises of ICI relating to revised targets for 1979 (Decision, point 54), the note of the meeting of 10 March 1982 made by an ICI executive (Decision, point 58), an undated ICI note made in preparation for a meeting with Shell planned for May 1983 and, finally, a working document relating to the first quarter of 1983 found at the premises of Shell (Decision, point 63).

32 In this regard, the applicant claims that the Commission acted in breach of Article 2(1) of Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (Official Journal, English Special Edition, 1963-1964, p. 47), according to which the Commission is to inform undertakings in writing of the objections raised against them. Those objections must be accompanied by the documents on which the Commission bases its allegations. Although it is not necessary that the entire content of the file should be communicated to the undertakings concerned, they should nevertheless be informed of the facts upon which the Commission' s complaints are based (judgment of the Court of Justice in Joined Cases 56 and 58/64 Établissements Consten S.à r.l. and Grundig-Verkaufs-Gmbh v Commission [1966] ECR 299). If those facts consist of specific documents, the Commission should communicate those documents to the undertakings or, if access to them is available, indicate those which are thus in point. Moreover, the assessment of the importance of a document or of the meaning of an undertaking' s reaction to a document should be left to that undertaking.

33 The Commission states in reply that all the documents which concerned the applicant and proved its participation in the cartel were communicated to it with the statement of objections in a perfectly identifiable way, with the exception of the note of a meeting of 10 March 1982 made by an ICI executive (Decision, point 58). This note, however, simply explained a scheme found at the premises of ICI and Hercules (main statement of objections, Appendix 71), which was disclosed and concerned the year 1982 during which the applicant has admitted in its application that it participated in the cartel.

34 It also states that the applicant was able, during the access-to-file procedure, to examine some of the documents which it states were not disclosed to it.

35 The Commission again points out that the documents to which reference is made in points 46 and 54 of the Decision were disclosed to the applicant as Appendices 35 and 55 to the main statement of objections.

36 Finally, it admits that some documents referred to in the Decision were not communicated to the applicant because they did not concern it at all and did not therefore serve as a basis for the part of the Decision which concerns it. They do not therefore have the slightest relevance in assessing the applicant' s position in the cartel.

37 The Court notes that, according to the case-law of the Court of Justice, the important point is not the documents as such but the conclusions which the Commission has drawn from them, and if those documents were not mentioned in the statement of objections, the undertaking concerned was entitled to take the view that they were of no importance for the purposes of the case. By not informing an undertaking that certain documents would be used in the Decision, the Commission prevented it from putting forward at the appropriate time its view of the probative value of such documents. It follows that those documents cannot be regarded as admissible evidence as far as it is concerned (judgment of the Court of Justice in Case 107/82 AEG-Telefunken AG v Commission [1983] ECR 3151, paragraph 27, and see most recently the judgment of 3 July 1991 in Case C-62/86 AKZO Chemie v Commission, not yet published in the Reports of Cases before the Court, at paragraph 21).

38 In this instance, only the documents mentioned in the main or specific statements of objections or in the letters of 8 October 1984 and of 29 March 1985, or those appended to them without being specifically mentioned therein, may be treated as admissible evidence as against the applicant in the present case. As far as the documents which are appended to the statements of objections but which are not mentioned therein are concerned, they may be used in the Decision as against the applicant only if the applicant could reasonably deduce from the statements of objections the conclusions which the Commission intended to draw from them.

39 It follows that, of the documents mentioned by the applicant, only the internal ICI note concerning the "firmer climate" (Decision, point 46) and the tables found at the premises of ICI relating to the revised targets for 1979 (Decision, point 54) may be used as evidence against the applicant since they are mentioned in points 71 and 92 respectively of the main statement of objections addressed to the applicant of which they also form Appendices 35 and 55. The other documents referred to by the applicant may not be considered to be evidence admissible against it in the present case.

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

2. The alleged insufficiency of the evidence adduced by the Commission

41 The applicant contends that the documents produced by the applicant are not reliable and, in particular, that the ICI notes reflect subjective intentions or interpretations of their authors, inspired by their own personal political aims within their undertakings.

42 It states that the Commission must not attempt to give a matter wider significance than is objectively justified by the established facts. Furthermore, it should apply the presumption of innocence and the principle in dubio pro reo. However, the Commission drew general conclusions from incidents and circumstances which, placed in their true context, could give a different picture of the conduct or position of the applicant on the market. It claimed that these incidents and circumstances constituted proof of guilt, thus basing its finding on insufficient, uncertain or inconclusive evidence. According to the applicant, that approach has the effect of reversing the burden of proof, DSM having to demonstrate in general that its conduct on the market was quite different from that alleged by the Commission or to give a different interpretation of the facts, whereas it is for the Commission to make its version of the facts plausible in the face of the interpretation given by the undertakings.

43 The Commission replies that DSM does not adduce any reasons for doubting the reliability of the documents which it has produced.

44 The Commission states that it gave the various facts that emerged a significance which did not go beyond that which they actually had. It draws attention to the fact that proof of an infringement of Article 85 of the EEC Treaty must necessarily be adduced by reference to the conduct of a number of undertakings. Contrary to what DSM suggests, it is for DSM to show, having regard to all the evidence adduced by the Commission, that the facts of the matter may be interpreted differently.

45 Finally, in the Commission' s view, the ground of challenge based on the principle in dubio pro reo is irrelevant in view of the large body of evidence in the case.

46 The Court holds that the meeting notes originating from ICI are confirmed by various documents, such as a number of tables of figures relating to the sales volumes of the various producers and such as price instructions 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.

47 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 by different members of ICI' s staff, which increased the need for them properly to inform those members of ICI staff who did not attend particular meetings about what had transpired at them by making notes of them.

48 In those circumstances, it is for the applicant to provide a different explanation for what occurred at the meetings in which it participated, by adducing precise evidence, such as, for example, notes taken by members of its staff during the meetings at which they were present or testimony by those persons. It must be concluded that the applicant has not advanced, or offered to advance, any such evidence before the Court.

49 Furthermore, the question whether the Commission drew excessively general conclusions from the available evidence, thus acting in breach of the presumption of innocence and the principle in dubio pro reo, 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 that is a question of substance related to proof of the infringement, it must be examined subsequently with the other questions relating to proof of the infringements.

PROOF OF THE INFRINGEMENT

50 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.

51 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 system of regular meetings, (B) the price initiatives, (C) the measures designed to facilitate the implementation of the price initiatives, and (D) the fixing of target tonnages and quotas, taking into account (a) the contested measure 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 system of regular meetings

(a) The contested decision

52 The Decision (point 78, fourth paragraph, and point 104, third paragraph) states that the system of regular meetings of polypropylene producers began at about the end of 1977, six meetings having taken place in 1978 (point 18, first paragraph), but it is not possible to identify the precise date on which each individual producer began to attend. It states that DSM, which is one of the producers in whose case it is not proved that it "supported" the December 1977 initiative, claims not to know when the meetings began and that it admits attending them only from 1980.

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

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

55 According to the Decision (point 21), the purpose of the regular meetings of polypropylene producers was, in particular, the setting of target prices and sales volumes and the monitoring of their observance by the producers.

(b) Arguments of the parties

56 The applicant points out that, according to the Decision, it participated in the cartel "from some time between 1977 and 1989". It contends that the Commission could not in any event introduce such a wide indeterminate margin as to the starting point of the infringement. It must establish that starting point precisely and, if it was not capable of doing this, give the applicant the benefit of the doubt.

57 It states that, although it admitted having participated regularly in meetings of polypropylene producers from 1 January 1981, it has always energetically denied having participated in them before that date with any definite regularity or in any structured form.

58 It contends that, if the Commission still maintains that the date on which DSM began to participate in the arrangements could not have been subsequent to 1979, it does so by relying on documents originating from ICI which are not conclusive or are interpreted incorrectly. Those documents consist only of tables mentioning production figures for the various producers.

59 In the reply, the applicant states that the conclusiveness of those documents as far as its participation in the meetings is concerned is undermined by their mention of Amoco, which, as the Commission has admitted, did not participate in the meetings. A note of 27 February 1978 (defence, Appendix III) is not conclusive either.

60 The Commission states that DSM admits having been present at the meetings with some regularity after 1 January 1981 and that, although it denies having participated in them with any regularity or in any structured form before 1981, it does not dispute that it attended them irregularly or occasionally.

61 The Commission contends that a large number of documents prove the applicant' s participation in the meetings before 1981. The pieces of evidence relied upon in this regard are: point 23 of DSM' s reply to the statement of objections in which it admitted in veiled terms that it was represented in the meetings before 1981; ICI' s reply to the request for information (main statement of objections, Appendix 8), according to which DSM attended the meetings as a "regular participant"; statements made at the general meeting of the European Association of Textile Polyolefins (EATP) of 26 May 1978, according to which DSM "will support the movement to get prices at a reasonable level" (main statement of objections, Appendix 7); Appendix 55 et seq. to the main statement of objections, which contain precise information which could only have been provided by DSM, and, finally, a note originating from DSM, dated 27 February 1978, from which it is clear that as from that time DSM was observing the agreements and was worried that some of its competitors were observing them less scrupulously.

(c) Assessment by the Court

62 The Court holds first of all that the finding relating to the commencement of the applicant' s participation in the infringement, which, according to Article 1 of the Decision, dated from some time between 1977 and 1979, must be understood as meaning, having regard to the reasons stated in the Decision, that the applicant' s participation in the infringement commenced between the beginning and end of 1978. It must be pointed out, first, that neither the main and specific statements of objections addressed to the applicant nor the Decision raised against the applicant any objection relating to a period before 1978, the Decision even expressly excluding the applicant from the December 1977 price initiative (point 78) and, secondly, that the second paragraph of point 105 of the Decision states that the commencement of the applicant' s participation in the infringement cannot have been later than the beginning of 1979.

63 On the basis of the evidence formed by, first, the internal DSM note dated 27 February 1978 (defence, Appendix III), which had been written in preparation for a meeting of 28 February 1978 and which mentions, in particular, amongst the errors made by DSM in its pricing policy, "clinging to agreements even when heavy violations of our partners become obvious", the context of that quotation indicating that the "partners" cannot be customers or suppliers who are named as such elsewhere in the document, and, secondly, by the applicant' s statements at the EATP meeting of 26 May 1978 (main statement of objections, Appendix 7), according to which:

"It is our conviction that stability in supply and in pricing is most important ... Therefore we will support the move to get prices at a reasonable level. This morning we have heard some comments indicating the November initiative has not been fully carried through, nevertheless we are of the opinion that it is absolutely necessary to pursue this goal further",

it must be held that, from a time which may be located in 1978, the applicant participated in meetings of "Senior Managers" ("bosses") organized by polypropylene producers at which the idea of setting target prices was developed, as is shown by ICI' s reply to the request for information (main statement of objections, Appendix 8) in which it is stated that: "Generally speaking however, the concept of recommending 'Target Prices' was developed during the early meetings which took place in 1978".

64 As regards the subsequent period, the Court finds that it is clear from ICI' s reply to the request for information that DSM participated regularly in the "bosses' " and "experts' " meetings from the end of 1978 or the beginning of 1979. That reply classifies the applicant, unlike two other producers, among the regular participants at those meetings and states, moreover, that:

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

65 It must also be observed that ICI' s reply to the request for information is corroborated, first, by the applicant' s reply to the statement of objections in which it maintains that it did not participate in the meetings with any regularity from January 1981 but does not deny having participated in them before that date and, secondly, by the fact that in various tables found at the premises of ICI and ATO (main statement of objections, Appendices 55 to 61) there appear, beside the applicant' s name, its sales figures for various months and years. However, most of the applicants admitted in their replies to a written question put to them by this Court that it would not have been possible to draw up the tables found at the premises of ICI, ATO and Hercules on the basis of the statistics available under the Fides data exchange system and in its reply to the request for information ICI stated, with regard to one of those tables, that "the source of information for actual historic figures in this table would have been the producers themselves". It must, however, be stated that the evidence formed by that statement does not in itself constitute proof of the applicant' s participation in the meetings, no more than was the case with Amoco, but merely serves to corroborate other pieces of evidence on the basis of which such participation must be considered to be proved, such other evidence not existing in the case of Amoco.

66 Finally, it is clear from the tables appended to the applicant' s reply to the request for information that it participated in nearly all the meetings of producers which are alleged to have been held during 1982 and 1983.

67 The Court holds that the Commission was entitled to consider, on the basis of the information which was supplied by ICI in its reply to the request for information and which was confirmed by a large number of meeting notes, that the purpose of the meetings was, in particular, to set target prices and sales volumes. In that reply, ICI 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 ..."; and that "A number of proposals for the volume of individual producers were discussed at meetings".

68 In addition, in explaining the organization of marketing experts' meetings from the end of 1978 or the beginning of 1979, in addition to the organization of "bosses' " meetings, ICI' s reply to the request for information reveals that the discussions about the fixing of price and sales volume targets became increasingly concrete and precise when, in 1978, the "bosses" were confining themselves to developing the actual concept of target prices.

69 Besides the previous passage, the following extract may be read in ICI' s reply to the request for information: "Only 'Bosses' and 'Experts' meetings came to be held on a monthly basis". The Commission rightly deduced from that reply as well as from the similar nature and purpose of the meetings that they were part of a system of periodic meetings.

70 It follows from the foregoing considerations that the Commission has established to the requisite legal standard that the applicant participated in the regular meetings of polypropylene producers from some time between 1977 and 1979 until September 1983 and that the purpose of those meetings was, in particular, to fix price and sales volume targets and that they were part of a system.

B. The price initiatives

(a) The contested decision

71 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.

72 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 issued by certain producers, which do not include the applicant, from which it is clear that those producers had instructed their sales offices to apply that price level or its equivalent in national currency from 1 September and, in most cases, before the trade press had announced the planned increase (Decision, point 30).

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

74 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.

75 The Decision (point 33) then refers to DSM' s participation in two meetings in January 1981 at which it was decided that a two-stage increase was required, on the basis of a price of DM 1.75/kg for raffia: the February target remained at DM 1.75/kg and a target of DM 2.00/kg was to be introduced "without exception" from 1 March. A table of target prices in six major grades was drawn up in six national currencies. Its implementation was scheduled for 1 February and 1 March 1981. The documents obtained from DSM show, in particular, that it took steps to introduce the target prices set for February.

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

77 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.

78 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%.

79 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 DSM 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).

80 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). The Decision admits (point 39, third paragraph) that price instructions for June are not available for DSM but states that a DSM sales report refers to price increases being planned for June which it was hoped would prove successful. At the meeting on 9 June 1982, the producers were able to announce only modest increases. GROUNDS CONTINUED UNDER DOC.NUM : 689A0008.1

81 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).

82 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).

83 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.

84 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).

85 Like ATO, BASF, Hercules, Hoechst, Huels, ICI, Linz, Monte 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 (main statement of objections, Appendix 29) (Decision, point 45, second paragraph).

86 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.

87 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 DSM, 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 (hereinafter referred to as "ECN").

88 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. 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.

89 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.

90 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. It states that DSM claims that no price instructions were issued for October or November but its list prices were identical for each grade and national currency with those of all the other producers.

91 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.

92 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.

93 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

94 The applicant contends that the essential objection raised by the Commission against the undertakings to which the Decision is addressed is the conclusion in 1977 of a floor-price agreement, which had to be revised periodically. It subsequently took concrete form in six periods identifiable through "price initiatives". The Commission uses the terms "framework agreement" and "sub-agreements" to describe this complex. The applicant therefore considers that, should the Court dismiss this fundamental objection, this must lead to the annulment in whole or in part of the Decision and the fines.

95 The applicant, which admits that it participated in the meetings with some regularity from January 1981, categorically denies that those meetings took place as part of a structured arrangement or, a fortiori, pursuant to a floor-price agreement.

96 It states that it never entered into any commitments and it never considered itself bound, either legally or morally, by the discussions which it had during the meetings. A fortiori, it never allowed itself to be guided by the outcome of those meetings when determining its commercial policy. On the contrary, that policy was characterized by the adoption of a position which was consistently aggressive, as is demonstrated by the increase in its market share. In the face of that evidence, the Commission, which, after all, bears the burden of proof, confines itself to general observations which do not show at all that DSM aligned its intentions with those of the other undertakings. Furthermore, the applicant states that it does not understand the reasoning by which the Commission seeks to demonstrate the existence of a de facto commitment. The Commission has therefore failed to prove DSM' s participation in a pricing agreement.

97 The applicant considers that its internal pricing policy does not justify the Commission' s conclusion on this point and refers in this regard to the sale prices which it charged on the market.

98 It points out that, as far as it is concerned, four types of prices must be distinguished: target prices, which are the prices which the company hopes to achieve; "list prices", which are the prices that are in principle indicated each month in the sales offices for each product; floor prices, notified to the sales offices at the same time as list prices, which determine the sales offices' margin for independent negotiation and, finally, actual sale prices.

99 The applicant produces graphs for different grades of polypropylene and different markets which, in its view, show, first, that the list prices never coincided with the target prices; secondly, that there were always substantial differences (of more than 20% on average) between the list prices and the floor prices; thirdly, that when prices were negotiated, it was the floor prices and not the target prices which served as a point of reference; and, finally, that the sales offices always had wide latitude to depart from the floor prices when fixing sale prices. Thus, the facts refute the Commission' s basic contention that the meetings actually influenced DSM' s commercial behaviour, since no link between the subject-matter of the meetings and the prices charged on the market nor any parallelism between the various prices charged by the undertakings on the market could be demonstrated. The applicant points out that the Commission itself admitted in point 73 of the Decision that: "It may also be that price was determined to a large extent by conditions of supply and demand".

100 The applicant then sets out to demonstrate that it did not participate in the various price initiatives.

101 As regards the initiative of July-December 1979, the applicant is not mentioned in the Decision, since it denies any participation in the infringements before 1 January 1981.

102 As regards the price initiative of January-May 1981, it states that its price instructions (application, Appendices 6 and 7) on which the Commission relies did not prove its intention to align itself with the target prices since in reality it was the market prices which served as a basis for the negotiation of prices with customers. Those instructions show that the prices referred to by the Commission were simply used as "guidelines" for the corresponding products and that they were not minimum prices, which are also mentioned in its price instructions and were, moreover, appreciably lower. The Commission did not therefore correctly interpret DSM' s price instructions.

103 As regards the initiative of August-December 1981, the applicant contends that the prices indicated in its price instructions diverged clearly from those which were set as target prices and from the instructions issued by other producers. The points made with regard to the previous period also apply to this period as well.

104 As regards the initiative of June-July 1982, it states that, contrary to what the Commission asserts in the Decision (point 39) and in its pleadings submitted to the Court, DSM' s price instruction for June 1982 consisted of the note communicated by DSM to the Commission as Appendix 43 to its reply to the statement of objections. That price instruction, which had been issued before the meeting at which an alleged price target had been agreed and which was ignored by the Commission, also shows a divergence from the so-called target prices referred to by the Commission. In its reply, the applicant further states that the document of 13 July 1982 originating from DSM, which forms Appendix 9 to the specific statement of objections addressed to it and which the Commission identifies as being the price instruction issued by the applicant for June 1982, cannot be that instruction by reason of its date, since a planned increase for June clearly could not be drawn up in July.

105 As regards the initiative of September-November 1982, the applicant refers to the explanations provided in respect of the period from January to May 1981. It points out that, although it indicated to its sales offices that the floor prices had to be used cautiously, this was only in order to counteract its offices' tendency to go below the floor prices.

106 Finally, as regards the initiative of July-November 1983, the applicant draws a distinction between the beginning and end of that period. As regards the beginning of that period, it explains that the price instruction dated 25 May 1983 to which the Commission refers (application, Appendix 11) and which appears to be parallel to other instructions, must be considered in the context of a rising market in which the applicant could not remain in the background. As regards the end of that period, there was no written instruction concerning the floor prices, as is shown by a telex sent to the sales offices on 2 August 1983 (application, Appendix 12), which indicated that supplementary instructions for floor prices were to follow.

107 The applicant concludes by stating that the Commission is merely condemning an intention internal to the undertaking, whereas the rules of competition aim to protect the competitive structure and not to penalize internal intentions which have had no effect on that competitive structure through concrete commercial attitudes. The Commission is breaking new ground in asserting that a common intention to adopt parallel conduct is punishable per se.

108 The Commission states that various pieces of evidence, such as the applicant' s prices instructions which matched those given by other producers both in their amount and date of entry into force (Appendix to the Commission' s letter of 29 March 1985), undeniably support the conclusion that DSM took part in the implementation of a plan agreed with those other producers. The Commission is convinced that, de facto, DSM did consider itself bound to implement the agreements made in the cartel, as is evidenced by its price instructions. Given such concrete participation in the cartel, the applicant' s view as to whether it was bound was irrelevant, as was its aggressive conduct on the market. The questions whether the "decisions" taken within the cartel were subject to control or whether DSM brought its pricing conduct into line with that of the others only to a limited extent are also irrelevant.

109 Furthermore, according to the Commission and contrary to DSM' s contention, there is evidence showing that the undertakings involved in the cartel, including DSM, set target prices for each Member State of the Community.

110 According to the Commission, DSM seeks to show that it is untrue that the discussions which took place at the meetings could actually have affected the operation of the market or the determination of the internal commercial policy of the undertaking. The Commission considers this defence argument to be irrelevant: the important factor is that, after having agreed target prices at meetings, all the producers, including DSM, instructed their sales departments to try to apply the agreed price levels and the target prices were used as a basis for the negotiation of prices with customers. In this regard, Table 9 to the Decision shows the link which undeniably existed between the prices achieved on the market and what was agreed between the producers.

111 The Commission also submits that collusion exists even if the target prices were not always achieved on the market. In its view, Table 7 to the Decision shows that parallelism undoubtedly existed between the price instructions issued by the various producers.

112 DSM' s point that price discussions related only to market prices and that the floor prices were used as a sort of "catch net" cannot be taken seriously because it implies that for years the setting of target prices was to no avail, that the sales departments did not need to observe them and that buyers did not need to bother about them.

113 As regards the applicant' s participation in the various price initiatives, the Commission states that, as far as the price initiative of July-December 1979 was concerned, it is true that DSM' s name does not appear in this regard in the Decision, but that its participation in the collusion during that period is established by other documents demonstrating its participation in the meetings, such as ICI' s reply to the request for information (main statement of objections, Appendix 8), the tables relating to quotas (main statement of objections, Appendices 55 to 60), the applicant' s internal note of 27 February 1978 (defence, Appendix III) or its statements at the EATP meeting of 26 May 1978 (main statement of objections, Appendix 7).

114 As regards the initiative of January-May 1981, it states that the documents provided by DSM itself show that the targets were used as a basis for negotiations of prices with customers and that they confirm that they were simultaneous and uniform in relation to those of other producers. The reference which DSM makes to the floor prices is irrelevant, as previously indicated.

115 As regards the initiative of August-December 1981, the Commission states that the list prices mentioned in DSM' s price instructions are identical to the agreed target prices mentioned in the Decision. For the rest, the Commission refers to what it stated in respect of the previous period.

116 As regards the initiative of June-July 1982, the Commission states that the document which DSM puts forward as its price instruction for June 1982 is dated 18 March 1982 and does not mention any price for June (DSM' s reply to the statement of objections, Appendix 43). It therefore considers that it was entitled to disregard that document and use instead, for the purposes of establishing the applicant' s participation in that price initiative, a sales report drawn up by the company on 13 July 1982 following the expert' s meeting of 13 May 1982 (specific statement of objections, DSM, Appendix 9).

117 As regards the price initiative of September-November 1982, the Commission adduces arguments analogous to those put forward in respect of the price initiative of January-May 1981.

118 As regards the price initiative of July-November 1983, the Commission considers that, in view of the documentary evidence at its disposal, DSM' s argument in relation to the optimum use of the possibilities offered by a rising market is unconvincing. In particular, it is established that DSM' s prices for September 1983 were identical to those of all the other producers for all grades and in all currencies (letter of 29 March 1985, Appendix I).

119 In conclusion, the Commission states that the common intention to adopt parallel conduct was unmistakably put into effect through price initiatives which it has identified and which, as Table 9 to the Decision shows, had an effect on the market.

(c) Assessment by the Court

120 The Court notes first of all that, since none of the objections raised against the applicant related to the period before 1978, it is not contended in the Decision that it participated in the floor-price agreement concluded in mid-1977 or that it took part in the price initiative of December 1977 (footnote to the fourth paragraph of point 78 of the Decision).

121 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".

122 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 would not have supported those initiatives, unlike other participants at the meetings.

123 In order to demonstrate that at the regular meetings of polypropylene producers it did not subscribe to the agreed price initiatives, the applicant has contended that it took no account at all of the decisions taken at the meetings when determining its pricing conduct on the market, as is shown, in its view, by its aggressive pricing policy on the market. It also points out that the Commission has misinterpreted its price instructions by failing to take account of the existence of four types of prices involved in the process by which DSM' s prices are fixed.

124 That argument cannot be accepted as evidence corroborating the applicant' s assertion that it did not subscribe to the agreed price initiatives. The Court considers that even if that argument were founded in fact, it would not gainsay the applicant' s participation in the fixing of target prices at the meetings but would at most tend to show that the applicant did not put into effect the results reached at 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 target prices.

125 In this same context, it must be observed that the Commission does not challenge an audit carried out by an independent firm of auditors, Coopers & Lybrand (hereinafter referred to as "the Coopers & Lybrand audit") showing that there were considerable differences between the prices actually charged and the target prices. However, it must be pointed out that the analyses which the producers themselves carried out at the meetings on 21 September, 6 October, 2 November and 2 December 1982 in order to review the effect of their price initiatives on the prices charged on the market seem to indicate that they regarded their results as being generally positive (main statement of objections, Appendices 30 to 33).

126 In any event, the Court finds that the applicant' s implementation of the results reached at the meetings was more real than it claims. The existence of four types of prices in the applicant' s case pre-supposes that they were all involved in the process by which the prices asked of customers were set. In this regard, it must be pointed out, first of all, that a reading of the price instructions sent by the applicant to its sales offices shows that the "target price" always corresponds to the "list price" and that both are slightly higher than the "Rock bottoms" which "have to be used with care by each product manager or area sales manager at certain specific accounts (for instance certain key customers)" and, secondly, that the price targets set at the meetings were incorporated in DSM' s price instructions as target prices and list prices even if the sales offices could in exceptional circumstances depart from them by applying the "rock-bottom prices". In this regard, it must be observed that when explaining why it had indicated to its sales offices that the "rock-bottom prices" had to be used "with care", the applicant is not convincing because if reference is made to the actual wording of those price instructions they do not indicate that the sales offices could go below those prices if they were careful, but rather that those prices were to be used only "with care".

127 Thus, despite the existence of the applicant' s various types of prices, the applicant endeavoured as far as possible, using its own methods of price setting, to pass on to its sales offices and thus to its customers the target prices set at the meetings.

128 The Court must examine next the specific evidence presented by the applicant to demonstrate that it did not participate in the various price initiatives.

129 As regards the applicant' s participation in the price initiative of July-December 1979, it must be pointed out, first, that the Decision (point 29) asserts that the meetings of producers were held during the first half of 1979 although it was not possible to identify the places and dates of the meetings and, secondly, that the Court has found that the Commission has established to the requisite legal standard that the applicant participated in those meetings. Furthermore, it is clear from matching price instructions issued by ATO, BASF, Hoechst, ICI, Linz and Shell that the initiative for obtaining DM 2.05/kg by 1 September 1979 had been decided on and announced at the end of July. The existence of that initiative and its postponement until 1 December 1979 are established by the note of the meeting of 26 and 27 September 1979 (main statement of objections, Appendix 12), in which it is stated: "2.05 remains the target. Clearly 2.05 not achievable in Oct., not in Nov. Plan now is 2.05 on 1/12".

130 It follows that the Commission has established to the requisite legal standard that the price increase of September 1979 was the result of the setting of target prices by the applicant and other producers for the period from July to December 1979.

131 Furthermore, the Court finds that in participating in the meetings of 1980 and those of January 1981, at which the price initiative of early 1981 was decided on, planned and monitored and in issuing price instructions matching the target prices set at those meetings, the applicant took part in that price initiative and that it may not rely on the fact that in its price instructions the target prices set at the meetings were used as list prices and not as minimum prices.

132 The Court likewise finds that in participating in the meetings at which the initiative of August-December 1981 was decided on, planned and monitored and in issuing price instructions corresponding to those given for the same period by other producers, the applicant participated in that price initiative.

133 As regards the initiative of June-July 1982, the Court finds that it is to be inferred from the note of the meeting of 13 May 1982 (main statement of objections, Appendix 24) that that initiative was decided on at that meeting at which the applicant participated. As regards the question whether the applicant provided the Commission with its price instruction for June 1982, as it claims, it must be concluded that it is clear from an examination of the document produced by the applicant (Appendix 43 to DSM' s reply to the statement of objections), headed "Price list Stamylan P./April/May/June" and dated 18 March 1982, that, despite its heading, that document does not lay down price targets for June 1982 since, beside the column relating to the month of June, it is written: "In case of need to be discussed with marketing Stamylan P." Consequently, that document does not constitute the applicant' s price instruction for June 1982, which was not therefore issued before the meeting of 13 May 1982 at which the target price for June had been agreed.

134 As regards the initiatives of September-November 1982 and July-November 1983, the Court finds that the applicant' s participation in those initiatives may be inferred from its participation in the meetings at which those price initiatives were decided on, planned and monitored, and from the fact that the price instructions issued by the applicant matched the target prices set at those meetings and those issued by other producers.

135 As regards the latter price initiative, it must be observed that the applicant does not deny that its price instructions match those of other producers and that it cannot explain that circumstance by the fact that the market was rising, since, whilst that background may explain why it issued price instructions increasing in value, it cannot explain why the increases planned by the various producers were of the same amount. Furthermore, as regards the month of September, it must be concluded that the price list which the applicant had drawn up on 2 August 1983 (application, Appendix 12) and which was to enter into force on 1 September 1983, provides for prices identical to those of the other producers for all grades in all currencies. Although price instructions issued by the applicant are not available for the months of October and November 1983, it is safe to deduce that it participated at the end of the price initiative in question from the fact that it participated in the meetings at which that initiative was decided on and planned.

136 Furthermore, 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 must also be observed that in order to support the findings of fact set forth above the Commission did not need to use documents which it had not mentioned in its statements of objections or which it had not disclosed to the applicant.

138 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 and that those initiatives were part of a system.

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

(a) The contested decision

139 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.

140 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.

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

(b) Arguments of the parties

142 The applicant contends that from the documents on which the Commission bases its assertion that it participated in the system of "account leadership" it may be concluded at most that this mechanism came up for discussion. However, they cannot prove that it was adopted and implemented, still less that DSM participated in it.

143 The Commission considers that the existence of a system of "account management" or of "account leadership" and DSM' s participation in that system are established. This is clear from the discussions which took place at a meeting on 2 September 1982 (main statement of objections, Appendix 29) in which DSM took part. At the end of those discussions this system was "generally agreed". The implementation of this system was also examined at a meeting of 3 May 1983 (main statement of objections, Appendix 38).

(c) Assessment by the Court

144 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.

145 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".

146 As regards the system of "account leadership", the Court finds that the applicant participated in three meetings (those of 2 September 1982, 2 December 1982 and 3 May 1983) at which this system was the subject of discussions between producers (main statement of objections, Appendices 29, 33 and 38). During the meetings of 2 December 1982 (main statement of objections, Appendix 33) and 3 May 1983 (main statement of objections, Appendix 38) the polypropylene producers examined the implementation of this system whose adoption was agreed on 2 September 1982 (main statement of objections, Appendix 29) and on that occasion they exchanged information relating to their customers.

147 The Court also finds that in its reply to the request for information the applicant listed the numerous local meetings in which it took part in 1982 and 1983 and that the purpose of those meetings is evidenced by notes of meetings of 12 August and 2 November 1982 (main statement of objections, Appendices 27 and 32) which show that those meetings were intended to apply a specific price initiative at the local level.

148 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.

D. Target tonnages and quotas

(a) The contested decision

149 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.

150 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.

151 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).

152 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 t. According to the Decision (point 55), a number of tables showing the "agreed targets" for each producer for 1980 were found at the premises of ATO and ICI. The original estimated total market available proved over-optimistic and the quota of each producer had to be revised downwards to fit total consumption during the year of only 1 200 000 t. Except for ICI and DSM, the sales achieved were largely in line with their targets. DSM, which "disputed any undertaking to cut back from their original target", had appreciably exceeded its allocation (sales of 46 100 t compared with a target of 38 400 t).

153 According to the Decision (point 56), the sharing of the market for 1981 was the subject of prolonged and complex negotiations. At the meetings in January 1981, it was agreed that as a temporary measure to help to achieve the February/March price initiative each producer would restrict monthly sales to one-twelfth of 85% of the 1980 "target". In preparation for a more permanent scheme, each producer communicated to the meeting the tonnage it hoped to sell during 1981. However, added together, those "aspirations" largely exceeded total forecast demand. In spite of various compromise schemes put forward by Shell and ICI, no definitive quota agreement was reached for 1981. As a stopgap measure the producers took the previous year' s quota of each producer as a theoretical entitlement and reported their actual sales each month to the meeting. In this way actual sales were monitored against a notional split of the available market based on the 1980 quota (Decision, point 57).

154 The Decision (point 58) states that for a 1982 scheme complicated quota proposals were advanced which attempted to reconcile divergent factors such as previous achievements, market aspirations and available capacity. The total market to be divided was estimated at 1 450 000 t. Some producers submitted detailed plans for market sharing while others were content to communicate only their own tonnage aspirations. At the meeting on 10 March 1982 Monte and ICI tried to reach an agreement. The Decision (point 58, last paragraph) states, however, that, as in 1981, no definitive agreement was reached and for the first half of the year the monthly sales for each producer were communicated during the meetings and monitored against its achieved percentage share in the previous year. According to the Decision (point 59), in the August 1982 meeting, negotiations for an agreement on quotas for 1983 were held and ICI held bilateral discussions with each of the producers on the new system. However, pending the introduction of such a quota scheme, producers were required in the second part of 1982 to aim to restrict their monthly sales to the same percentage of the overall market which each of them had achieved in the first six months of 1982. Thus, in 1982, the market shares of medium-sized producers like ATO had reached a relative equilibrium (described by ATO as a "quasi-consensus") and in the case of most of the producers remained stable compared with previous years, with DSM as the only exception, continuing its regular progression of 0.5% a year.

155 According to the Decision (point 60), for 1983, ICI invited each producer to indicate its own quota ambitions and suggestions for what percentage each of the others should be allowed. Monte, Anic, ATO, DSM, Linz, Saga and Solvay, as well as the German producers via BASF, submitted their own detailed proposals. The various proposals were then processed by computer to obtain an average which was compared with the individual percentage "aspirations" of each producer. Those steps enabled ICI to propose guidelines for a new framework agreement for 1983. Those proposals were discussed at the meetings of November and December 1982. A proposal initially restricted to the first quarter of the year was discussed at the meeting on 2 December 1982. The note of that meeting drawn up by ICI shows that ATO, DSM, Hoechst, Huels, ICI, Monte and Solvay, as well as Hercules, found their allocated quota "acceptable" (Decision, point 63). Those facts are borne out by the ICI note of a telephone conversation with He