Judgment of the Court of First Instance (Third Chamber, extended composition) of 14 May 1998. - Mayr-Melnhof Kartongesellschaft mbH v Commission of the European Communities. - Competition - Article 85(1) of the EC-Treaty - Concept of agreement - Information exchange - Order to desist - Fine - Determination of the amount - Statement of reasons - Mitigating circumstances - Rights of the defence - Cooperation during the administrative procedure - Principle of equal treatment. - Case T-347/94.



European Court reports 1998 Page II-01751



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1 Acts of the institutions - Statement of reasons - Obligation - Scope

(EC Treaty, Art. 190)

2 Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Meaning - Common intention as to future conduct on the market

(EC Treaty, Art. 85(1))

3 Competition - Agreements, decisions and concerted practices - Participation in meetings of undertakings with an anti-competitive object - Ground for concluding that an undertaking participated in the subsequent cartel, if it has not distanced itself from the decisions taken

(EC Treaty, Art. 85(1))

4 Competition - Administrative procedure - Cessation of infringements - Obligations imposed on undertakings - Proportionality - Criteria

(Council Regulation No 17, Art. 3(1))

5 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Aggravating circumstances - Concealment of the cartel - Proof inferred from the absence of notes on meetings of cartel members

(Council Regulation No 17, Art. 15)

6 Competition - Fines - Amount - Determination thereof - Criteria - Gravity and duration of the infringements - Criteria to be applied - Possibility of increasing the fines in order to strengthen their deterrent effect

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

7 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines on several undertakings for an infringement of the competition rules

(EC Treaty, Art. 190; Council Regulation No 17, Art. 15)

8 Competition - Fines - Amount - Determination thereof - Criteria - Conduct of the undertaking during the administrative procedure - Illegality of reductions given to undertakings which have not expressly acknowledged the Commission's factual allegations - Undertakings precluded from relying on the principle of equal treatment in order to obtain unlawful reductions

(Council Regulation No 17, Art. 15)

9 Community law - Principles - Fundamental rights - Guaranteed by the Community judicature - European Convention on Human Rights taken into account

(Treaty on European Union, Art. F(2))

10 Competition - Administrative procedure - Observance of the rights of the defence - Where the Commission indicates to an undertaking that, if it admits the factual allegations, the fine may be reduced, but does not specify the size of the reduction - Whether permissible

11 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Whether Commission obliged to abide by its previous decision-making practice - No such obligation

(Council Regulation No 17, Art. 15)

12 Competition - Fines - Amount - Determination thereof - Criteria - Past conduct of the undertaking

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

13 Competition - Community rules - Infringements - Intentional - Meaning

(Council Regulation No 17, Art. 15)

14 Competition - Fines - Amount - Determination thereof - Turnover figure taken into account - Reference market - Equal treatment

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

15 Competition - Fines - Amount - Determination thereof - Turnover figure taken into account - Turnover achieved by an undertaking acquired during the reference year by an offending undertaking - Included where the infringement is committed by both undertakings, but attributed solely to the acquiring undertaking

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

Summary

1 The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

Although pursuant to Article 190 of the Treaty the Commission is bound to state the reasons on which its decisions are based, mentioning the facts, law and considerations which have led it to adopt them, it is not required to discuss all the issues of fact and law which have been raised during the administrative procedure.

2 In order for there to be an agreement within the meaning of Article 85(1) of the 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. The question whether the undertakings in question considered themselves bound - in law, in fact or morally - to adopt the agreed conduct is therefore irrelevant.

Undertakings are parties to such an agreement where they have expressed their joint intention to carry out uniform and simultaneous price increases, to control supply by considering downtime, and to maintain their market shares at constant levels, subject to modification from time to time.

3 The fact that an undertaking does not abide by the outcome of meetings which have a manifestly anti-competitive purpose is not such as to relieve it of full responsibility for the fact that it participated in the cartel, if it has not publicly distanced itself from what was agreed in the meetings. Even assuming that the undertaking's conduct on the market was not in conformity with the conduct agreed, that in no way affects its liability for an infringement of Article 85(1) of the Treaty.

4 Article 3(1) of Regulation No 17 may be applied so as to include an order directed at bringing to an end certain acts, practices or situations which have been found to be unlawful and also at prohibiting the adoption of similar conduct in the future. Moreover, since that provision is to be applied according to the nature of the infringement found, the Commission has the power to specify the extent of the obligations on the undertakings concerned in order to bring an infringement to an end. Such obligations on the part of the undertakings may not, however, exceed what is appropriate and necessary to attain the objective sought, namely to restore compliance with the rules infringed.

A prohibition fails to satisfy the conditions required for application of Article 3(1) of Regulation No 17 if it seeks to prevent the exchange of purely statistical information which is not in, or capable of being put into, the form of individual information where it is not apparent from the decision that the Commission considered the exchange of statistical data to be in itself an infringement of Article 85(1) of the Treaty; furthermore, the mere fact that a system for the exchange of statistical information might be used for anti-competitive purposes does not make it contrary to Article 85(1) of the Treaty, since in such circumstances it is necessary to establish its actual anti-competitive effect.

5 The fact that the undertakings participating in price collusion orchestrated the announcement of the concerted price increases and that they were discouraged from taking notes on the meetings to discuss this proves that they were aware of the unlawfulness of their conduct and that they took steps to conceal the collusion. The Commission is entitled to hold those steps to be aggravating circumstances when assessing the gravity of the infringement.

The absence of official minutes and the almost total absence of internal notes relating to the meetings may constitute, having regard to the number of such meetings, to the length of time for which they continued and to the nature of the discussions in question, sufficient proof that the participants were discouraged from taking notes.

6 In determining the amount of the fine for infringement of the Community competition rules, regard is to be had to both the gravity and the duration of the infringement. The gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case, and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up.

When assessing the general level of fines the Commission is entitled to take account of the fact that clear infringements of the Community competition rules are still relatively frequent and that, accordingly, it may raise the level of fines in order to strengthen their deterrent effect. Consequently, the fact that in the past the Commission has applied fines of a certain level to certain types of infringement does not mean that it is estopped from raising that level, within the limits set out in Regulation No 17, if that is necessary in order to ensure the implementation of Community competition policy.

Furthermore, in fixing the general level of fines, the Commission is entitled to take into account the lengthy duration and obviousness of an infringement of Article 85(1) of the Treaty which has been committed despite the warning which the Commission's previous decisions should have provided.

7 Where decisions impose fines on several undertakings for infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of criteria to be applied has been drawn up.

Furthermore, when fixing the amount of each fine, the Commission has a margin of discretion and cannot be considered to be obliged to apply a precise mathematical formula for that purpose.

Lastly, the reasons for a decision must appear in the actual body of the decision and, save in exceptional circumstances, explanations given ex post facto cannot be taken into account.

When the Commission finds in a decision that there has been an infringement of the competition rules and imposes fines on the undertakings participating in it, it must, if it has systematically taken into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision in order to enable the addressees of the decision to verify that the level of the fine is correct and to assess whether there has been any discrimination.

8 In determining the amount of the fine to be imposed for infringement of the Community competition rules, a reduction on grounds of cooperation during the administrative procedure is justified only if the conduct made it easier for the Commission to establish an infringement and, as the case may be, to put an end to it.

An undertaking which expressly states that it is not contesting the factual allegations on which the Commission bases its objections may be regarded as having facilitated the Commission's task of finding and bringing to an end infringements of the Community competition rules. In its decisions finding infringements of those rules, the Commission is entitled to take the view that such conduct constitutes an acknowledgement of the factual allegations and thus proves that those allegations are correct. Such conduct may therefore justify a reduction in the fine.

The situation is different where the essential allegations made by the Commission in its statement of objections are contested by an undertaking in its reply to that statement, or where the undertaking does not reply or merely states that it is not expressing any view on the Commission's factual allegations. By adopting such an attitude during the administrative procedure the undertaking does not facilitate the Commission's task.

Since reductions in fines can be considered lawful only in so far as the undertakings concerned have expressly stated that they do not contest the factual allegations, an undertaking which has not adopted that attitude cannot lay claim to a reduction on grounds of its cooperation during the administrative procedure because, even if the Commission has applied an unlawful criterion by reducing the fines imposed on undertakings which have not expressly stated that they were not contesting the factual allegations, it is necessary that respect for the principle of equal treatment be reconciled with the principle of legality, according to which a person may not rely, to his benefit, on an unlawful act committed in favour of a third party.

9 The Community judicature has no jurisdiction to apply the European Convention on Human Rights when reviewing an investigation under competition law, because the Convention is not itself part of Community law.

However, fundamental rights form an integral part of the general principles of law whose observance the Community judicature ensures. For that purpose, the Court of Justice and the Court of First Instance draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The European Convention on Human Rights has special significance in that respect.

10 The fact that, without specifying the size of a reduction, the Commission indicates, during the administrative procedure, to an undertaking involved in an investigation under competition law that it would be possible to reduce the fine to be imposed if it were to admit most or all of the factual allegations, cannot of itself constitute pressure on that undertaking. In so doing, the Commission does not disregard the rights of the defence, a fundamental principle of the Community legal order.

11 In fixing the amount of the fine to impose for infringement of the Community competition rules, the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case, and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up.

Consequently, the mere fact that the Commission has found in its previous decisions that certain factors constitute mitigating circumstances for the purpose of determining the amount of the fine does not mean that it is obliged to do so also in a subsequent decision.

12 In determining the amount of the fine to impose for infringement of the Community competition rules, the fact that the Commission has already found an undertaking guilty of infringing the competition rules in the past and has penalised it for that infringement may be treated as an aggravating factor as against that undertaking. However, the absence of any previous infringement is a normal circumstance which the Commission does not have to take into account as a mitigating factor.

13 It is not necessary for an undertaking to have been aware that it was infringing Article 85(1) of the Treaty for an infringement to be regarded as having been committed intentionally. It is sufficient that it could not have been unaware that the contested conduct had as its object or effect the restriction of competition in the common market.

14 The principle of equal treatment requires that, when the Commission determines the amount of the individual fines to be imposed on a number of undertakings for infringement of the Community competition rules, the turnover figure used must relate to the same reference market.

15 Where two undertakings are participating in an infringement of the Community competition rules and one has acquired control of the other during the reference year used to calculate the turnover figure applied to determine the fine to impose, so that the Commission was able to attribute to it the conduct of the acquired undertaking in the period before and after its acquisition, the Commission is entitled, for the purposes of calculating the acquiring undertaking's turnover figure, to include the turnover achieved by the acquired undertaking during the reference year.

Parties

In Case T-347/94,

Mayr-Melnhof Kartongesellschaft mbH, a company incorporated under Austrian law, represented by Otfried Lieberknecht, Burkhard Richter and Klaus Benner, Rechtsanwälte, Düsseldorf, and Michel Waelbroeck, of the Brussels Bar, subsequently by Michel Waelbroeck and Denis Waelbroeck, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Alex Bonn, 7 Val Sainte-Croix,

applicant,

v

Commission of the European Communities, represented by B. Langeheine and R. Lyal, of its Legal Service, acting as Agents, and Dirk Schroeder, Rechtsanwalt, Cologne, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of Commission Decision 94/601/EC relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 - Cartonboard, OJ 1994 L 243, p. 1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(Third Chamber, Extended Composition),

composed of: B. Vesterdorf, President, C.P. Briët, P. Lindh, A. Potocki and J.D. Cooke, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing which took place from 25 June to 8 July 1997

gives the following

Judgment

Grounds

Facts

1 This case concerns Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 - Cartonboard, OJ 1994 L 243, p. 1), as corrected prior to its publication by a Commission decision of 26 July 1994 (C(94) 2135 final) (hereinafter `the Decision'). The Decision imposed fines on 19 producers supplying cartonboard in the Community on the ground that they had infringed Article 85(1) of the Treaty.

2 The product with which the Decision is concerned is cartonboard. The Decision refers to three types of cartonboard, designated as `GC', `GD' and `SBS' grades.

3 GD grade cartonboard (hereinafter `GD cartonboard') is white-lined chipboard (recycled paper) which is normally used for the packaging of non-food products.

4 GC grade cartonboard (hereinafter `GC cartonboard') is cartonboard with a white top layer and is normally used for the packaging of food products. GC cartonboard is of higher quality than GD cartonboard. During the period covered by the Decision there was normally a price differential of approximately 30% between those two products. High quality GC cartonboard is also used, but to a lesser extent, for graphic purposes.

5 SBS is the abbreviation used to refer to cartonboard which is white throughout (hereinafter `SBS cartonboard'). The price of this cartonboard is approximately 20% higher than that of GC cartonboard. It is used for the packaging of foods, cosmetics, medicines and cigarettes, but is designated primarily for graphic uses.

6 By letter of 22 November 1990, the British Printing Industries Federation (`BPIF'), a trade organisation representing the majority of printed carton producers in the United Kingdom, lodged an informal complaint with the Commission. It claimed that the producers of cartonboard supplying the United Kingdom had introduced a series of simultaneous and uniform price increases and it requested the Commission to investigate whether there had been an infringement of the Community competition rules. In order to ensure that its initiative received publicity, the BPIF issued a press release. The content of that press release was reported in the specialised trade press in December 1990.

7 On 12 December 1990, the Fédération Française du Cartonnage also lodged an informal complaint with the Commission, making allegations relating to the French cartonboard market which were similar to those made in the BPIF complaint.

8 On 23 and 24 April 1991, Commission officials acting pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87, hereinafter `Regulation No 17'), carried out simultaneous investigations without prior notice at the premises of a number of undertakings and trade associations operating in the cartonboard sector.

9 Following those investigations, the Commission sent requests for both information and documents to all the addressees of the Decision pursuant to Article 11 of Regulation No 17.

10 The evidence obtained from those investigations and requests for information and documents led the Commission to conclude that from mid-1986 until at least (in most cases) April 1991 the undertakings concerned had participated in an infringement of Article 85(1) of the Treaty.

11 The Commission therefore decided to initiate a proceeding under Article 85 of the Treaty. By letter of 21 December 1992 it served a statement of objections on each of the undertakings concerned. All the addressees submitted written replies. Nine undertakings requested an oral hearing. A hearing was held on 7, 8 and 9 June 1993.

12 At the end of that procedure the Commission adopted the Decision, which includes the following provisions:

`Article 1

Buchmann GmbH, Cascades SA, Enso-Gutzeit Oy, Europa Carton AG, Finnboard - the Finnish Board Mills Association, Fiskeby Board AB, Gruber & Weber GmbH & Co KG, Kartonfabriek "de Eendracht NV" (trading as BPB de Eendracht NV), NV Koninklijke KNP BT NV (formerly Koninklijke Nederlandse Papierfabrieken NV), Laakmann Karton GmbH & Co KG, Mo Och Domsjö AB (MoDo), Mayr-Melnhof Gesellschaft mbH, Papeteries de Lancey SA, Rena Kartonfabrik A/S, Sarrió SpA, SCA Holding Ltd (formerly Reed Paper & Board (UK) Ltd), Stora Kopparbergs Bergslags AB, Enso Española SA (formerly Tampella Española SA) and Moritz J. Weig GmbH & Co KG have infringed Article 85(1) of the EC Treaty by participating,

- in the case of Buchmann and Rena from about March 1988 until at least the end of 1990,

- in the case of Enso Española, from at least March 1988 until at least the end of April 1991,

- in the case of Gruber & Weber from at least 1988 until late 1990,

- in the other cases, from mid-1986 until at least April 1991,

in an agreement and concerted practice originating in mid-1986 whereby the suppliers of cartonboard in the Community

- met regularly in a series of secret and institutionalised meetings to discuss and agree a common industry plan to restrict competition,

- agreed regular price increases for each grade of the product in each national currency,

- planned and implemented simultaneous and uniform price increases throughout the Community,

- reached an understanding on maintaining the market shares of the major producers at constant levels, subject to modification from time to time,

- increasingly from early 1990, took concerted measures to control the supply of the product in the Community in order to ensure the implementation of the said concerted price rises,

- exchanged commercial information on deliveries, prices, plant standstills, order backlogs and machine utilisation rates in support of the above measures.

...

Article 3

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

...

(xi) Mayr-Melnhof Karton Gesellschaft mbH, a fine of ECU 21 000 000;

...'

13 According to the Decision, the infringement took place within a body known as the `Product Group Paperboard' (hereinafter `the PG Paperboard'), which comprised several groups or committees.

14 In mid-1986 a group entitled the `Presidents Working Group' (hereinafter `the PWG') was established within that body. This group brought together senior representatives of the main suppliers of cartonboard in the Community (some eight suppliers).

15 The PWG's activities consisted, in particular, in discussion and collaboration regarding markets, market shares, prices and capacities. In particular, it took broad decisions on the timing and level of price increases to be introduced by producers.

16 The PWG reported to the `President Conference' (hereinafter `the PC'), in which almost all the managing directors of the undertakings in question participated (more or less regularly). The PC met twice each year during the period in question.

17 In late 1987 the Joint Marketing Committee (hereinafter `the JMC') was set up. Its main task was, on the one hand, to determine whether, and if so how, price increases could be put into effect and, on the other, to prescribe the methods of implementation for the price initiatives decided by the PWG, country-by-country and for the major customers, in order to achieve a system of equivalent prices in Europe.

18 Lastly, the Economic Committee discussed, inter alia, price movements in national markets and order backlogs, and reported its findings to the JMC or, until the end of 1987, to the Marketing Committee, the predecessor of the JMC. The Economic Committee was made up of marketing managers of most of the undertakings in question and met several times a year.

19 According to the Decision, the Commission also took the view that the activities of the PG Paperboard were supported by an information exchange organised by Fides, a secretarial company, whose registered office is in Zurich, Switzerland. The Decision states that most of the members of the PG Paperboard sent periodic reports on orders, production, sales and capacity utilisation to Fides. Under the Fides system, those reports were collated and the aggregated data were sent to the participants.

20 In the Decision the Commission finds that the applicant, Mayr-Melnhof Kartongesellschaft mbH (hereinafter `Mayr-Melnhof'), participated in meetings of all four bodies of the PG Paperboard referred to above, namely the PWG, the PC, the JMC, and the Economic Committee.

21 Throughout the period covered by the Decision, the management and marketing activities of Mayr-Melnhof were fully integrated with those of FS-Karton, a producer of cartonboard in Germany acquired by Mayr-Melnhof in 1984. For that reason, Mayr-Melnhof was held responsible for FS-Karton's involvement in the cartel (point 150 of the Decision).

22 Mayr-Melnhof was also held responsible for the participation in the infringement of its Swiss 66% subsidiary, Deisswil, throughout the period of that infringement (ibidem). Lastly, it was held responsible for the involvement of Mayr-Melnhof Eerbeek BV (hereinafter `Eerbeek'), a company established in the Netherlands, which it acquired in September 1990. Its responsibility for Eerbeek's conduct was held to have begun on 1 January 1990, the effective date of the acquisition.

Procedure

23 The applicant brought this action by application lodged at the Registry of the Court on 18 October 1994.

24 Sixteen of the eighteen other undertakings held to be responsible for the infringement have also brought actions to contest the Decision (Cases T-295/94, T-301/94, T-304/94, T-308/94, T-309/94, T-310/94, T-311/94, T-317/94, T-319/94, T-327/94, T-334/97, T-337/94, T-338/94, T-348/94, T-352/94 and T-354/94).

25 The applicant in Case T-301/94, Laakmann Karton GmbH, withdrew its action by letter lodged at the Registry of this Court on 10 June 1996 and the case was removed from the Register by order of 18 July 1996 (Case T-301/94 Laakmann Karton GmbH v Commission, not published in the ECR).

26 Four Finnish undertakings, members of the trade association Finnboard, and as such held jointly and severally liable for payment of the fine imposed on Finnboard, have also brought actions against the Decision (Joined Cases T-339/94, T-340/94, T-341/94 and T-342/94).

27 Lastly, an action was also brought by an association, CEPI-Cartonboard, which was not an addressee of the Decision. However, it withdrew its action by letter lodged at the Registry of the Court on 8 January 1997 and the case was removed from the Register of the Court by order of 6 March 1997 (Case T-312/94 CEPI-Cartonboard v Commission, not published in the ECR).

28 By letter of 5 February 1997 the Court requested the parties to take part in an informal meeting with a view, in particular, to their presenting observations on a possible joinder of Cases T-295/94, T-304/94, T-308/94, T-309/94, T-310/94, T-311/94, T-317/94, T-319/94, T-327/94, T-334/94, T-337/94, T-338/94, T-347/94, T-348/94, T-352/94 and T-354/94 for the purposes of the oral procedure. At that meeting, which took place on 29 April 1997, the parties agreed to such a joinder.

29 By order of 4 June 1997 the President of the Third Chamber, Extended Composition, of the Court, in view of the connection between the abovementioned cases, joined them for the purposes of the oral procedure in accordance with Article 50 of the Rules of Procedure and allowed an application for confidential treatment submitted by the applicant in Case T-334/94.

30 By order of 20 June 1997 he allowed an application for confidential treatment submitted by the applicant in Case T-337/94 which related to a document produced in response to a written question from the Court.

31 Upon hearing the report of the Judge Rapporteur, the Court (Third Chamber, Extended Composition) decided to open the oral procedure and adopted measures of organisation of procedure in which it requested the parties to reply to certain written questions and to produce certain documents. The parties complied with those requests.

32 The parties in the cases referred to in paragraph 28 above presented oral argument and gave replies to the Court's questions at the hearing which took place from 25 June to 8 July 1997.

Forms of order sought

33 The applicant claims that the Court should: - annul Article 1 of the Decision; - annul Article 2 of the Decision;

- annul Article 3 of the Decision or reduce the amount of the fine imposed by it;

- order the Commission to pay the costs.

34 The Commission contends that the Court should: - dismiss the application; - order the applicant to pay the costs.

The application for annulment of Article 1 of the Decision

A - The pleas relating to the infringement of essential procedural requirements

Infringement of Article 190 of the Treaty

Arguments of the parties

35 The applicant submits that the obligation to state reasons for a decision is intended to protect the interested parties and to enable the Community judicature to review that decision (Case 18/57 Nold v High Authority [1959] ECR 41). The Commission is obliged to mention in particular the factual and legal elements which led it to adopt the decision and which provide the legal basis for it.

36 Furthermore, the Commission can decline to answer arguments of the addressees of the decision only where it considers them to be irrelevant (Case T-15/89 Chemie Linz v Commission [1992] ECR II-1275, paragraph 328). In the present case it infringed that principle because it failed to answer a number of the applicant's central arguments.

37 The Commission, in the main, ignored the argument that the alleged agreements and concerted practices did not have any appreciable impact on the market situation. That argument was based on an in-depth study, namely the London Economics Report (`the LE report'). The Decision (point 115) does not deal with the views set out in that report.

38 Furthermore, the Commission failed to consider the special features of the market which the applicant had explained both in its reply to the statement of objections and at the hearing before the Commission. The regular price increases, which were usual in the sector, are referred to in the Decision only as a fact which demonstrates the existence of the alleged cartel (points 18 to 20 of the Decision). By taking that approach, the Commission failed to comment on the explanations given by the applicant and thereby infringed Article 190 of the Treaty.

39 Lastly, the Commission has applied a wrong definition of the concept of benefit.

40 The Commission contends that a decision contains an adequate statement of reasons where it mentions the factual and legal elements which provide the legal basis for the measure and the considerations which led it to adopt its decision (Case T-3/89 Atochem v Commission [1991] ECR II-1177, paragraph 222). Those requirements are fully satisfied in the present case.

41 It commented on the LE report not only in point 115 of the Decision but also in points 16, 21 and 101. The Decision also contains a detailed description of the cartonboard market (points 6 to 21). In particular, the Commission considered the needs of the market as regards capital investment (point 13) and the tendency for prices to increase simultaneously at certain times of the year in the sector (point 18).

Findings of the Court

42 It is settled law that the purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted (see, inter alia, Case T-49/95 Van Megen Sports v Commission [1996] ECR II-1799, paragraph 51). Although pursuant to Article 190 of the Treaty the Commission is bound to state the reasons on which its decisions are based, mentioning the facts, law and considerations which have led it to adopt them, it is not required to discuss all the issues of fact and law which have been raised during the administrative procedure (see, inter alia, Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 66).

43 In the present case, the Decision contains a detailed statement of the Commission's reasons for rejecting the argument submitted by some undertakings, including the applicant, that the infringement found had not had any effect on the market (see, in particular, points 101, 102 and 115 of the Decision). Likewise, the specific features of the market to which the applicant refers were all considered in the Decision (see, in particular, points 13 and 18).

44 Lastly, in so far as the applicant disputes the correctness of the Commission's assessment of the benefits gained by the cartonboard producers (see paragraph 39 above) that argument should be considered in the context of the substance of the Decision and is irrelevant in the context of the present plea.

45 This plea must therefore be rejected.

Infringement of the requirements relating to proof under Community law

46 The applicant claims that the Commission failed to satisfy the requirements relating to proof under Community law, because it relied on mere presumptions, suppositions and imaginary empirical principles. In particular, the Commission overestimated the probative value of Stora's statements, because, on the Commission's own view, Stora bore prime responsibility for the alleged infringement (point 46 of the Decision).

47 By that argument, the applicant is in reality seeking to contest the Commission's assessment of the evidence set out in the Decision. Such an argument goes to the substance of the Decision, and this plea must therefore be rejected.

B - The pleas alleging infringement of substantive rules

The plea that there were no agreements on prices

Arguments of the parties

48 The applicant points out certain special features of the cartonboard market which are essential for an understanding of the way in which list prices and transaction prices arise. In order to pass on to their own customers any increases in cartonboard prices, the cartonboard converters always required that the cartonboard producers fix their prices for each six-monthly period and that at least two month's prior notice be given of the producers' intention to increase prices. The convertors insisted that any increase in the price of cartonboard should be of at least 5%.

49 The meetings of the cartonboard producers did not therefore have the significance which the Commission attributed to them. Each producer's conclusions as to the amount of each price increase were influenced by increases in costs which affected all of them more or less identically. All the price increases were absolutely necessary because of increases in production costs.

50 Nor were the producers compelled to follow one particular producer's decision to increase prices by a certain amount. However, on this type of market - for more or less homogeneous bulk goods - it is usual to sell at uniform list prices, which means that the real competition takes place in individual negotiations with customers.

51 The market ensured that price initiative were transparent because, once letters announcing price increases had been sent, producers could, during the adequate period of notice demanded by the convertors, ascertain what initiatives were planned by other producers and how buyers were reacting before they had to decide whether or not to follow those increases themselves. It adds that the Commission has not claimed that restrictions on competition affected individual price negotiations with buyers.

52 The Commission failed to take into account the fact that demand for cartonbaord is determined solely by demand for the goods to be packaged. An individual producer cannot therefore automatically increase his market shares by reducing his prices because the converters' production is often adapted to their usual supplier's type of cartonboard and they can, without great difficulty, call on him to reduce his prices as well.

53 Lastly, the heavy investment required in the cartonboard sector was not properly taken into account by the Commission.

54 The applicant submits that it is settled law that there is an agreement within the meaning of Article 85 of the Treaty only when the undertakings have expressed their joint intention to conduct themselves on the market in a specific way (Chemie Linz v Commission, cited above, paragraph 301). It is therefore inherent in the concept of an `agreement' that a - not necessarily legally binding - obligation exists in the form of the participants' actual intention to be bound. In order to find that an agreement exists, it is at least necessary that the persons concerned should assume a moral obligation to conduct themselves in accordance with what has been agreed. However, in the Decision the Commission has not even asserted that the undertakings in fact undertook to adopt a specific course of conduct whose object was to restrict competition.

55 The applicant accepts that it participated in the exchange of information on planned increases in list prices and that this exchange can be regarded as a concerted practice which restricts competition. However, the evidence on which the Commission relies in point 74 et seq. of the Decision does not prove the existence of agreements. In particular, Stora's second statement (appendix 39 to the statement of objections), on which the Commission relies, does not contain any evidence of the existence of such agreements. Moreover, Stora's statements do not have any probative value.

56 Furthermore, the fact that the producers' price increases were substantially the same and entered into force at more or less the same time does not prove that there were binding agreements in regard to prices. It merely reflects the particular conditions of the relevant market.

57 Lastly, the applicant disputes that there is a causal link between the discussions on increases in list prices and the increases in transaction prices which were observed on the market. It therefore disputes that the actual increases in price can be regarded as proof of the existence of pricing agreements.

58 The Commission states that it is clear from the case-law that in order for their to be an agreement within the meaning of Article 85 it is sufficient that the undertakings in question should have expressed their joint intention to conduct themelves on the market in a specific way (see Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 256).

59 In points 72 to 90 of the Decision it set out in detail the evidence showing the nature of the infringement in question. That evidence showed that the cartonboard producers agreed in advance in the PWG upon the size of each price increase, which producer would be the first to announce each of the increases, the date of that increase and the dates on which the other producers would follow by sending their own letters announcing increases (point 73 of the Decision).

60 In those circumstances, the applicant's argument that the timing and nature of the price increase announcements is explained by the wishes of their customers is not inconsistent with the existence of agreements. Its arguments based on market the transparency which resulted from letters announcing price increases and on market characteristics are also irrelevant, because it has been proved that the undertakings had agreed on the price increases in advance.

61 Moreover, the price collusion was part of an overall plan. In such a complex system of agreements, the various measures should be considered as a whole in the light of the overall objective of the cartel (point 128 of the Decision). Having regard to the increasing concretisation of the collusion, the planning and common implementation of price initiatives, and also the agreement on market shares and volume control, the Commission maintains its view, set out in points 131 and 132 of the Decision, that the infringement was a concerted practice from mid-1986 and that from the end of 1987 it displayed all the characteristics of a full agreement within the meaning of Article 85 of the Treaty.

62 Lastly, it submits that the price increases affected the prices actually applied.

Findings of the Court

63 The applicant admits that it participated in collusion on planned price increases.

64 According to the Decision, the undertakings referred to in Article 1 thereof had fixed `by agreement ... the regular price increases to be applied in each national market' (point 130, second paragraph, third indent). As the Commission stated (paragraph 61 above), in its view there had been an agreement from the end of 1987.

65 It is settled law in that in order for there to be an agreement within the meaning of Article 85(1) of the 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 (see, inter alia, Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 112, and Van Landewyck and Others v Commission, cited above, paragraph 86 and Hercules Chemicals v Commission, cited above, paragraph 256). Contrary to the applicant's submission, the question whether the undertakings in question considered themselves bound - in law, in fact or morally - to adopt the agreed conduct is therefore irrelevant.

66 The Court must therefore establish whether the addressees of the Decision expressed their joint intention to conduct themselves on the market in a specific way in regard to prices.

67 As regards the price initiatives, Stora states inter alia (appendix 39 to the statement of objections, points 27, 28 and 30):

`... a near balance between capacity and consumption had emerged in 1987. In that year there was a 5% surplus of capacity over consumption. This discrepancy (which was much less than the industry itself had realised until then) gave the PWG the opportunity to agree on price increases from 1987 onwards with some certainty that those increases would be successfully implemented. When this opportunity arose, the producers were concerned to recover the losses made in the previous years.

The PWG considered that an initial increase of 10% should be implemented in 1988. This amounted, for example, to FF 50 per 100 kilograms for GC grades and FF 35 per 100 kilograms for GD grades for the French market. Similar increases were implemented in other countries. Subsequent increases were agreed at similar absolute amounts and therefore reducing percentages of increase.

...

The PWG would discuss and agree on who would announce each price increase first and the dates of announcements of the other main producers. The pattern was not the same each time.'

68 It adds (appendix 39 to the statement of objections, points 13 and 14):

`... the purpose ... of the JMC ... included comparative pricing for certain major customers and the working out of details for the implementation on a country-by-country basis of the pricing decisions of the PWG for both GC and GD grades.

The JMC discussed market-by-market the detailed implementation of the pricing decisions taken by the PWG and reported back to the PWG.'

69 According to Stora, the undertakings meeting in the PWG and the JMC therefore expressed their joint intention to make identical and simultaneous price increases on the various national markets.

70 Stora's statements are supported on that point by various items of documentary evidence referred to by the Commission in points 74 et seq. of the Decision.

71 In that regard, it suffices to refer to the three price lists mentioned in points 79, 80 and 83 of the Decision. Those lists, obtained by the Commission from Rena (appendices 110 and 111 to the statement of objections) and from Finnboard (UK) Ltd, contain information, in respect of several types of cartonboard and several Community countries, regarding the dates and precise amounts of the price increases implemented by the undertakings in question in April 1989, September/October 1989 and April 1990 respectively. The information in the three price lists corresponds, as regards the amounts of the price increases and the dates of their implementation, to the actual conduct of those undertakings on the market (see tables D, E and F annexed to the Decision).

72 Moreover, the Commission obtained from Rena handwritten notes regarding a JMC meeting of 6 September 1990 (Appendix 118 to the statement of objections), in which it is stated, inter alia:

`Price increase will be announced next week in September.

F FF 40 NL 14 D DM 12 I LIT 80 B BF 2.50 CH SF 9 GB £ 40 IRL £ 45

All grades should be increased equally GD, UD, GT, GC etc.

Only 1 price increase a year. For deliveries from 7 Jan. Not later than 31st January. 14 of September letter with price increase (Mayr-Melnhof). 19 Sept. Feldmühle sending its letter. Cascades before end of Sept. All must have sent out their letters before 8 October.'

73 The applicant does not dispute that those three price lists relate to collusion on prices or that appendix 118 to the statement of objections relates to the JMC meeting of 6 September 1990.

74 Consequently, without there being any need to examine other evidence, the Court considers that the Commission has proved that the undertakings which participated in the meetings of the PWG and the JMC expressed their joint intention to carry out uniform and simultaneous price increases. The Commission was therefore entitled to find that the joint intention which had been formed by the applicant and other cartonboard producers regarding price initiatives constituted an agreement with effect from the end of 1987.

75 In those circumstances the applicant's arguments based on the alleged particularities of the cartonboard market, on the one hand, and the absence of any causal link between the increases in list prices and the increases in transaction prices, on the other, are irrelevant. Even if the factual assertions made by the applicant in the context of those arguments were correct, that could not call into question the Commission's finding that the infringement concerning prices in which the applicant participated could be characterised as an agreement from the end of 1987.

76 This plea must therefore be rejected.

The plea that there was no agreement or concerted practice relating to the alleged `price before tonnage' policy

Arguments of the parties

77 The applicant's submissions are in three parts.

78 First, it argues that there was no agreement or concerted practice to maintain market shares at a constant level.

79 It submits that the Commission's assertions regarding the alleged collusion on `freezing' the market shares of the main cartonboard producers are based solely on Stora's statements and the confidential note of 28 December 1988 found at FS-Karton (appendix 73 to the statement of objections). However, those documents do not contain any evidence of the existence of an agreement or concerted practice to `freeze' market shares.

80 Appendix 73 to the statement of objections is merely a general report on the situation by the sales director of FS-Karton which sought to explain to the group management the reasons for the stagnation in its turnover. According to that note, the sales director had expressed reservations regarding the new sales policy of the group, which required absolute price discipline from subsidiaries even if that entailed a reduction in volumes sold. The note proves that this decision had been taken by the group management and had been imposed on the sales director of FS-Karton. Moreover, he was unaware of the substance of the discussions in the PG Paperboard.

81 Stora's statements do not prove the existence of the alleged basic agreement on a `price before tonnage' policy. In its second statement Stora merely refers to `discussions' on market shares (appendix 39 to the statement of objections, p. 4 and 11). Likewise, its third statement (appendix 43 to the statement of objections) refers to `discussions' and to `understandings' (p. 1 and 2). Furthermore, reference is made not to a basic agreement but rather to several individual agreements - not confirmed by other documents - based on figures for the preceding year. Stora did not use the word `agreement' within the special meaning of Article 85 of the Treaty (see paragraph 54 et seq. above), because it stated that the `agreements' were not binding on the producers and were observed by them only if it was in their own interests to do so (appendix 39 to the statement of objections, p. 4, and point 59 of the Decision).

82 Moreover, there are doubts as to the credibility of Stora's statements, in view of the fact that its cooperation with the Commission may be explained by discussions on the extent to which the fine would be reduced in return for it.

83 Lastly, the handwritten note of 11 January 1990 found in the office of the sales director of FS-Karton (appendix 113 to the statement of objections, points 84 to 86 of the Decision) was drawn up in preparation for an internal report intended for the Mayr-Melnhof management and is based on the sales director's personal views and on information obtained in discussions with colleagues and customers. The other documents to which the Commission refers do not support its assertions.

84 Second, the applicant constructs an argument based on the change in its market shares. It states that the increase in the capacity of FS-Karton by 200 000 tonnes in 1990 shows that it intended to increase its market share in its main market, namely the Community market. Its exports to non-Community markets were unconnected with the effective control of supply. They followed the basic rule that business should be conducted in accordance with market conditions. Its `price before tonnage' policy was the result of its own decision and aimed to prevent a general collapse of prices on the Community market.

85 The market shares of the various producers, including its own, also changed. It disputes the Commission's assertions that the fluctuations in market shares are explained by the fact that the market shares were not static but adapted from time to time and renegotiated, and that discussions on market shares took place each year on a fresh basis. There is no evidence to support those assertions or the Commission's claim that producers who increased their market shares were taken to task.

86 Third, the applicant submits an argument relating to downtime and changes in production volumes.

87 First, the Commission did not have due regard to the fact that the European cartonboard market is a buyers' market. The applicant describes the characteristics of the relationship between producers and their customers on that market.

88 The Commission has not supplied any evidence to show that there was an understanding between the major producers on downtime. Its assertions are based solely on a few vague insinuations in Stora's second statement. Furthermore, the Commission never answered the applicant's argument that it had always used its production capacity to the maximum, even though that argument is supported by a table, relating to capacity utilisation, annexed to its application. The actual machine downtime found to have taken place in 1990 in the Mayr-Melnhof group's factories was caused by the introduction of a new machine, maintenance, trials and conversion work.

89 The Commission refers principally to its findings in the Decision regarding the `price before tonnage' policy (points 51 to 60). It also refers to Stora's second statement (appendix 39 to the statement of objections, in particular pp. 3, 12, 14 and 15).

90 As regards more specifically the `freezing' of the main producers' existing market shares, it states that this was a necessary component of the `price before tonnage' policy which aimed to monitor the cartel members' actual policy on production volumes. Proof of the existence of collusion on `freezing' market shares is provided in particular by the confidential note discovered at FS-Karton (appendix 73 to the statement of objections). In addition, the Decision refers to a whole series of other evidence which the applicant does not mention and which confirms most precisely the information in Stora's second statement and the confidential note of FS-Karton (see points 84, 87, 94 and 95 of the Decision and the documents considered therein).

91 As regards Stora's statements, the Commission repeats that a joint intention as to future conduct on the market constitutes an infringement of Article 85 of the Treaty. Those statements are confirmed in all material respects by other documents and there is therefore no reason to doubt their credibility. Furthermore, no agreement was reached between it and Stora regarding the level of the fine and the reduction which might be expected in return for its cooperation.

92 As to the increase in the applicant's production capacity, the Commission states that consumption of cartonboard in western Europe increased by 18.6% between 1987 and 1990, which means that some increase in capacity in the sector was necessary in order to satisfy the increased demand. However, the increase in capacity, in particular through the introduction of a new machine at FS-Karton, was not necessarily accompanied by a shift in market shares.

93 There is no evidence that production from newly created capacity at FS-Karton was sold on the Community market. According to the documents submitted by the applicant, its market share increased between 1987 and 1991 by only 0.6% in the case of GD grades and by 0.3% in the case of GC grades, and the new capacity created at FS-Karton did not lead to any increase in its market shares. As the applicant itself admits, it exported to non-member countries in order to avoid a fall in prices on the Community market; that is precisely in line with the objectives of the `price before tonnage' policy.

94 Even an increase in the applicant's market shares would not justify its participation in discussions during which the market shares of the major manufacturers of cartonboard were determined annually (point 60 of the Decision).

95 Lastly, as regards downtime, the Commission submits that the documents produced by the applicant during the proceedings before the Court show that particularly in 1990 the utilisation rate of some factories fell considerably in comparison with previous years and that in 1991 the utilisation rate of the Hirschwang factory also fell considerably in comparison with previous years.

96 In any event it is irrelevant whether the applicant actually produced at full capacity. As there was a complex system of agreements which aimed, inter alia, to control supply and to allocate markets in the Community and as the applicant took part in the PWG meeting at which the policy in question was drawn up, the applicant is responsible for the entire infringement committed by the producers (Case T-13/89 ICI v Commission [1992] ECR II-1021, paragraphs 256 to 261 and 305, and Hercules Chemicals v Commission, cited above, paragraph 272).

Findings of the Court

1. Existence of concerted action to freeze market shares and control supply

97 According to Article 1 of the Decision, the undertakings referred to in that article infringed Article 85(1) of the Treaty by participating, during the relevant period, in an agreement and concerted practice whereby the suppliers of cartonboard in the Community `reached an understanding on maintaining the market shares of the major producers at constant levels, subject to modification from time to time' and `increasingly from early 1990, took concerted measures to control the supply of the product in the Community in order to ensure the implementation of the said concerted price rises'.

98 According to the Commission, those two types of collusion, dealt with in the Decision under the heading `volume control', were initiated during the reference period by the participants in the PWG meetings. It is apparent from the third paragraph of point 37 of the Decision that the true purpose of the PWG, as described by Stora, `included "discussions and concertation on markets, market shares, prices, price increases and capacity"'.

99 As to the PWG's role in relation to the collusion on market shares, the Decision (point 37, fifth paragraph) states as follows: `In connection with the moves to increase prices, the PWG held detailed discussions on the market shares in western Europe of the national groupings and of individual producer groups. As a result, certain "understandings" were reached between the participants as to their respective market shares, the object being to ensure that the concerted price initiatives were not jeopardised by excess of supply over demand. The large producer groups in effect agreed to maintain their market shares at the levels disclosed for each year by the annual production and sales figures and available in definitive form through Fides in March of the following year. Market share developments were analysed in each meeting of the PWG on the basis of the monthly Fides returns and if significant fluctuations emerged, explanations would be sought from the undertaking presumed responsible.'

100 According to point 52 of the Decision: `The agreement reached in the PWG during 1987 included the "freezing" of the west European market shares of the major producers at existing levels, with no attempts to be made to win new customers or extend existing business through aggressive pricing'.

101 The first paragraph of point 56 states: `The basic understanding between the major producers on maintaining their respective market shares continued throughout the period covered by this Decision'. According to point 57: `"Market share development" was analysed at each meeting of the PWG on the basis of provisional statistics'. Finally, the last paragraph of point 56 states: `The undertakings which took part in these discussions on market shares were those represented in the PWG, namely Cascades, Finnboard, KNP (until 1988), [Mayr-Melnhof], MoDo, Sarrió, the two Stora group producers CBC and Feldmühle, and (from 1988) Weig'.

102 The Court therefore considers that the Commission correctly established the existence of collusion on market shares between the participants in the meetings of the PWG.

103 The Commission's analysis is in essence based on Stora's statements (appendices 39 and 43 to the statement of objections) and is confirmed by appendix 73 to the statement of objections.

104 In appendix 39 to the statement of objections, Stora states: `The PWG met from 1986 to assist in the introduction of discipline in the market. ... Among other (legitimate) activities, its purpose included discussion and concertation on markets, market shares, prices, price increases, demand and capacity. Its role included assessing and explaining to the President Conference the precise state of supply and demand on the market and the measures to be taken to attempt to bring order to the market.'

105 As regards more specifically the collusion on market shares, Stora indicates that `the shares taken by national groups of EC, EFTA and other countries supplied by members of the PG Paperboard were considered in the PWG' and that the PWG `discussed the possibility of holding market shares at the previous year's level' (appendix 39 to the statement of objections, point 19). It also states (same document, point 6) that `[d]iscussions about producers' European market shares also took place during this period, the first reference period being 1987 levels'.

106 In a reply to a request by the Commission of 23 December 1991, sent on 14 February 1992 (appendix 43 to the statement of objections), Stora also states: `The understandings on market share levels reached by the PWG members related to Europe as a whole. The understandings were based on the previous total year figures, usually definitively available by the following March' (point 1.1).

107 That assertion is confirmed in the same document as follows: `... the discussions led to understandings usually in March of each year between members of the PWG to maintain their market shares at the previous year's level' (point 1.4). Stora reveals that `no measures were taken to ensure respect for the understandings' and that the participants in the meetings of the PWG `were aware that if they took exceptional positions in certain markets supplied by others, those others could retaliate in other markets' (ibidem).

108 Lastly, it states that Mayr-Melnhof took part in the discussions concerning market shares (point 1.2).

109 Stora's assertions concerning collusion on market shares are supported by appendix 73 to the statement of objections. That document, found at FS-Karton, is a confidential note dated 28 December 1988 sent by the marketing director of the Mayr-Melnhof/FS-Karton Group in Germany (Mr Katzner) to the General Manager of Mayr-Melnhof in Austria (Mr Gröller) concerning the market situation.

110 According to that document, cited in points 53 to 55 of the Decision, the closer cooperation within the `Presidents' grouping' (`Präsidentenkreis') decided on in 1987 had produced `winners' and `losers'. The author of the note considers the applicant to be amongst the losers for various reasons, including the following:

`(2) An agreement could only be reached by our being "punished" - we were asked to make "sacrifices".

(3) Market shares had to be "frozen" at 1987 levels, existing contacts maintained and no new activities or grades obtained via pricing (the result will be apparent in January 1989 - if all are honest)'.

111 Those sentences must be read in the more general context of the note.

112 In that regard, the author of the note refers by way of introduction to the closer cooperation within the `Presidents' grouping'. That expression was interpreted by the applicant as a general reference to both the PWG and the PC, that is to say, without reference to a specific event or meeting (appendix 75 to the statement of objections, point 2.a).

113 The author goes on to indicate that this cooperation had led to `price discipline' which had produced `winners' and `losers'.

114 It is necessary, therefore, to understand the phrase relating to the market shares which were to be frozen at 1987 levels against the background of that discipline decided upon by the `Presidents' grouping'.

115 Moreover, the reference to 1987 as reference year is consistent with Stora's second statement (appendix 39 to the statement of objections; see paragraph 105 above).

116 As to the role played by the PWG in the collusion on the control of supply, which was a feature of the consideration of machine downtime, the Decision states that the PWG played a decisive role in implementing downtime when, from 1990, production capacity increased and demand fell: `From the beginning of 1990 ... the industry leaders ... considered it necessary to concert on the need for taking downtime in the forum of the PWG. The major producers recognised that they could not increase demand by lowering prices and that maintaining full production would simply bring prices down. In theory, the amount of downtime required to bring supply and demand back into balance could be calculated from the capacity reports' (point 70 of the Decision).

117 It is also observed: `However, the PWG did not formally allocate the "downtime" to be taken by each producer. According to Stora, there were practical difficulties in reaching a coordinated plan on downtime to cover all the producers. Stora says that for these reasons only "a loose system of encouragement existed"' (point 71 of the Decision).

118 The Court finds that the Commission adequately established the existence of collusion on downtime between the participants in the meetings of the PWG.

119 The documents it produces support its analysis.

120 In its second statement (appendix 39 to the statement of objections, point 24), Stora gives the following explanation: `With adoption by the PWG of the policy of price before tonnage and the gradual implementation of an equivalent price system from 1988, members of the PWG recognised that downtime would have to be taken to maintain those prices in the face of a reduced growth in demand. Without taking downtime the producers would have been unable to maintain agreed price levels in the face of an increasing excess of capacity'.

121 In point 25 of its statement, Stora adds: `In 1988 and 1989 the industry was able to run at near full capacity. Downtime in addition to normal closure for repairs and holidays became necessary from 1990. ... Ultimately downtime had to be taken when the order flow ceased in order to maintain the price before tonnage policy. The amount of downtime required to be taken by producers (to maintain the balance between production and consumption) could be calculated from the capacity reports. No formal allocation of downtime was made by the PWG, although a loose system of encouragement existed '... .

122 As to appendix 73 to the statement of objections, the reasons adduced by the author of the note in order to explain why he considered the applicant to be a `loser' at the time when the note was written are significant evidence of the existence of collusion on downtime between the participants in the meetings of the PWG.

123 The author states:

`(4) It is at this point that there begins to be a difference in opinion between the parties involved as to what is desired.

...

(c) All sales representatives and European agents were released from their quantity budgets and a pricing policy followed which admitted of practically no exceptions (our employees often did not understand our changed attitude to the market - in the past they were just required to go for tonnage and now the sole objective is price discipline with the danger of having to stop machines).'

124 The applicant states in appendix 75 to the statement of objections and in his written pleadings to the Court (paragraph 80 above) that the note, and therefore the passage reproduced above, refers to its own internal situation. However, when considered in the light of the more general background to the note, that passage reflects the implementation, at the level of sales personnel, of a rigorous policy adopted within the `Presidents' grouping'. The document must therefore be construed as meaning that the participants in the 1987 agreement, that is to say, the participants in the meetings of the PWG at least, undoubtedly weighed up the consequences the agreed policy would have if it were to be applied rigorously.

125 The fact that discussions relating to consideration of downtime took place between the manufacturers when they prepared price increases is corroborated, in particular, by a Rena note dated 6 September 1990 (appendix 118 to the statement of objections), which refers to the amounts of price increases in several countries, the dates for the future announcements of those increases and the state of the order backlogs expressed in working days for several manufacturers.

126 The author of the document notes that certain manufacturers were providing for downtime, which he illustrates as follows:

`Kopparfors 5 - 15 days 5/9 will stop for five days'.

127 The applicant, which participated in the JMC meeting to which the note relates (table 4 annexed to the Decision), is referred to several times in the note. In particular, the note indicates the date on which the applicant was to send letters announcing the price increases. It is also stated as follows:

`Deisswil 5 days (GC) 2.5 week for GD plan to stop within 2 weeks step (?)'

128 On the basis of the foregoing, the Commission has proved to the requisite legal standard that there was collusion on market shares between the participants in the meetings of the PWG and that there was collusion on downtime between those same undertakings. Since it is not disputed that the applicant took part in the meetings of the PWG and that that undertaking is expressly referred to in the main inculpatory evidence (Stora's statements and appendix 73 to the statement of objections), the Commission was fully entitled to hold the applicant liable for its participation in those two types of collusion.

129 The applicant's criticism of Stora's statements, by which it disputes their probative value, does not weaken that finding.

130 It is not disputed that Stora's statements are made by one of the undertakings regarded as having participated in the alleged infringement and that they contain a detailed description of the nature of the discussions held in the bodies of the PG Paperboard, of the objective pursued by the undertakings which met within it, and of the participation of those undertakings in the meetings of its various bodies. Since this central evidence is corroborated by other documents, it constitutes a sound basis for the Commission's assertions.

131 Since the Commission has proved the existence of the two types of collusion in question, it is unnecessary to consider the applicant's criticism of appendix 113 to the statement of objections.

2. The applicant's actual conduct

132 Nor does the Court accept the argument that applicant's actual conduct is irreconcilable with the Commission's assertions that the two types of collusion in question actually took place.

133 First, the existence of collusion between the members of the PWG on the two aspects of the `price before tonnage policy' should not be confused with their implementation. The probative value of the proof adduced by the Commission is such that information as to the applicant's actual conduct on the market cannot affect the Commission's conclusions concerning the fact of the existence of collusion on the two aspects of the policy at issue. At the very most, the applicant's contentions might tend to show that its conduct did not follow that agreed by the undertakings which met in the PWG.

134 Second, the Commission's conclusions are not contradicted by the information supplied by the applicant. It must be emphasised that the Commission expressly accepts that the collusion on market shares involved `no formal machinery of penalties or compensation to reinforce the understanding on market shares' and that the market shares of some large producers did creep up from year to year (see, in particular, points 59 and 60 of the Decision). Moreover, the Commission acknowledges that since the industry had operated at full capacity until the beginning of 1990, practically no downtime was required until that date (point 70 of the Decision).

135 Third, it is settled law that the fact that an undertaking does not abide by the outcome of meetings which have a manifestly anti-competitive purpose is not such as to relieve it of full responsibility for the fact that it participated in the cartel, if it has not publicly distanced itself from what was agreed in the meetings (see, for example, the judgment in Case T-141/89 Tréfileurope Sales v Commission [1995] ECR II-791, paragraph 85). Even assuming that the applicant's conduct on the market was not in conformity with the conduct agreed, and in particular that, as it contends, it made full use of its production capacity during 1990, that in no way affects its liability for an infringement of Article 85(1) of the Treaty.

3. The characterisation in law of the concerted action to freeze market shares and control supply

136 The question of the characterisation in law of the concerted action to freeze market shares and to control supply will be considered in the context of the plea alleging that there was no common industry plan to restrict competition (paragraph 137 et seq. below).

The plea that there was no common industry plan to restrict competition

Arguments of the parties

137 The applicant submits that the Commission has not produced evidence to show that there was an agreement on a common industry plan to restrict competition. The applicant relies mainly on the arguments which it submitted in the context of its two previous pleas.

138 Moreover, it states that the complaint that such a plan existed does not reveal the the Commission's grounds for concluding that there was an infringement of Article 85(1) of the Treaty. There was no binding agreement requiring the participants to follow a common industry plan to restrict competition (see, on the concept of an `agreement' paragraph 54 et seq. above).

139 The Commission deals with this plea in the context of its arguments relating to the plea that there was no agreement on prices (see paragraph 58 et seq. above).

Findings of the Court

140 The Court has already found that the undertakings which met in the PWG participated in collusion on market shares, downtime and prices.

141 Article 1 of the Decision provides that the undertakings referred to therein infringed Article 85(1) of the Treaty by participating, during the relevant period, in an agreement and concerted practice originating in mid-1986 whereby the suppliers of cartonboard in the European Community, inter alia, `met regularly in a series of secret and institutionalised meetings to discuss and agree a common industry plan to restrict competition'.

142 According to the Decision, `from the end of 1987, with the concretisation of the progressive collusion of the producers in the so-called "price before tonnage" scheme, the infringement has presented all the characteristics of a full "agreement" in the sense of Article 85' (point 131, first paragraph).

143 The Commission correctly characterised the increased cooperation between the participants in the PWG meetings from the end of 1987 as an agreement within the meaning of Article 85 of the Treaty. Those undertakings expressed their joint intention to conduct themselves on the market in a specific way (see, inter alia, the judgments cited in paragraph 65 above). On the basis of the foregoing, the Court finds that those undertakings expressed their joint intention to implement simultaneous, uniform price increases, to control supply by considering downtime, and to maintain their market shares at constant levels, subject to modification from time to time.

144 As to the period from mid-1986 until the end of 1987, the Commission states in the Decision (point 132): `If collusion between the producers probably did not crystallize into the full "price before tonnage" agreement until about the end of 1987, this does not however mean that their behaviour in the preceding 18 months falls outside the scope of Article 85.' Since the collusion on downtime and market shares must be considered to have commenced at the end of 1987, that assertion by the Commission can only refer to collusion on prices.

145 As the applicant does not dispute that it participated in a concerted practice in regard to prices (paragraph 55 above), the correctness of that characterisation does not have to be considered.

146 Since none of the applicant's arguments has been upheld, the plea must be rejected.

The plea that the Fides information exchange system is lawful

Arguments of the parties

147 The applicant contends that the Commission wrongly considered that the Fides information exchange system was an indispensable element in the implementation of the alleged agreements on quotas and quantities. The information sent to Fides in the context of the information exchange system were aggregated at the level of each country and did not therefore allow any agreement or concerted behaviour to be monitored.

148 The information processed by Fides concerning order backlogs could have given producers only a general view of the overall market situation. The exchange of the aggregated data, which related solely to orders already placed, could not have impaired competition. It was rather a basis for individual measures by producers (downtime, sales on markets of non-member countries, etc.).

149 The capacity reports distributed by Fides contained for the main part merely data with which the market was already familiar and which was reproduced in publications available and accessible to all.

150 The Commission argues that the information exchanged was used to plan concerted conduct relating to prices and quantities for the whole of the sector (point 134 of the Decision).

151 Furthermore, the information on capacity, when combined with information on order backlogs, enabled the cartonboard producers to establish the sector's utilisation rate. The information on order backlogs was not available to customers and there was therefore no general market transparency. Moreover, when assessing the significance of the capacity reports, it is necessary to take all the information exchanged into account.

152 An information exchange implemented for the purpose of collusion is caught by Article 85 of the Treaty. Whether the statistics on orders contained information which was capable of being put into the form of individual information is therefore irrelevant.

Findings of the Court

153 According to Article 1 of the Decision, the undertakings referred to in that article infringed Article 85(1) of the Treaty by participating in an agreement and concerted practice whereby the undertakings, inter alia, `exchanged commercial information on deliveries, prices, plant standstills, order backlogs and machine utilisation rates in support of the above measures', that is to say, collusion on prices, market shares and downtime.

154 In view of its operative part and the third paragraph of point 134, the Decision must be interpreted as meaning that the Commission considered the Fides information exchange system to be contrary to Article 85(1) of the Treaty because it supported the cartel.

155 The third paragraph of point 134 of the Decision explains that the Fides information exchange system `was an essential aid to:

- monitoring market share development,

- monitoring conditions of supply and demand so as to maintain full capacity utilisation,

- deciding whether concerted price increases could be introduced,

- determining the necessary downtime'.

156 Moreover, it is apparent from the Decision that the Fides statistics were analysed and discussed in the PWG. The first paragraph of point 57, which also refers to point 63 of the Decision, states: `"Market share development" was analysed at each meeting of the PWG on the basis of provisional statistics'. In addition, the first paragraph of point 69 states: `A comparison could be made of the weekly order backlog and the available capacity, in the light of which the PWG reached an assessment of the overall state of demand in the cartonboard industry'.

157 The Court finds that those allegations by the Commission are proved.

158 First, the applicant does not dispute that the Fides statistics were discussed in the PWG.

159 Second, the Commission rightly considered that the Fides statistics were used in that body to `[monitor] market share development' (point 134, third paragraph, first indent) and to `[monitor] conditions of supply and demand so as to maintain full capacity utilisation' and to `[determine] the necessary downtime' (point 134, third paragraph, second and fourth indents).

160 As regards the use of the Fides statistics in order to `monitor market share development', Stora acknowledged that `if it appeared from analysis of the statistics that the level of sales by national groupings was moving too much, members of the PWG ... would encourage each other and take it upon themselves to limit fluctuations in national markets' (appendix 39 to the statement of objections, point 19).

161 Likewise, according to appendix 43 to the statement of objections (point 1.1):

`Fluctuations in supply to national markets were examined and discussed at each PWG (ie every two to three months) on the basis of the Fides quick statistics ... These were produced on a monthly basis with a total per calendar year and not on a running year total basis. Fluctuations that appeared in the statistics would not necessarily accurately reflect the final end year position and could not be relied on with any great certainty. It did not make sense for the major producers represented in the PWG to discuss market shares on a national basis in detail since producers were not able to determine the end destination of their deliveries.

...

The understandings on market share levels reached by the PWG members related to Europe as a whole. The understandings were based on the previous total year figures, usually definitively available by the following March.'

162 As regards the use of the Fides statistics for the purpose of `monitoring conditions of supply and demand so as to maintain full capacity utilisation', reference should be made to Stora's statement (appendix 39 to the statement of objections, point 5):

`Linked with the pricing initiative from 1987, was the need to maintain a near balance between production and consumption (price before tonnage policy). In 1988 and 1989, producers were operating at full or near full capacity. In 1990, as a result of a combination of increased capacity and a reduced growth in demand, downtime began to be taken by producers in order to maintain the balance between production and consumption. ... The producers could work out from the annual capacity reports the amount of downtime necessary and encouraged each other to take downtime sufficient to maintain the balance between production and demand ... [N]ot all manufacturers took downtime in this way with the result that some, usually the larger, producers suffered proportionately greater tonnage losses in an effort to maintain price levels' (to the same effect, ibidem, point 25).

163 Stora's statements are indirectly confirmed by appendices 73 and 75 to the statement of objections. It is apparent from appendix 73 (see point 109 et seq. above) that the marketing director for the Mayr-Melnhof/FS-Karton group in Germany (Mr Katzner) suggested to the applicant's general manager in Austria that the Fides information exchange system then in operation should be amended (page 5, subparagraph 5, under the heading `Kontrolle'). According to appendix 75 (page 11) of the applicant's reply to a request for information: `The Fides rules were subsequently amended, broadly along the lines of the proposals' set out in appendix 73 (see also point 63, second paragraph, of the Decision). In view of the general tenor of appendix 73, Mr Katzner's request for an amendment to the Fides information exchange system must be understood in the sense that this system did not allow adequate control of changes in market shares and/or examination of downtime and that accordingly it should be improved in order to ensure better control.

164 In the light of that evidence, and having regard to the fact that the Commission rightly considered that the applicant participated in collusion on downtime and on market shares in the PWG, this plea must be rejected.

The application for annulment of Article 2 of the Decision

Arguments of the parties

165 As regards the prohibition on the future exchange of information, the applicant contends principally that the wording of Article 2 of the Decision is so vague and general that an assessment cannot be made of the type of information which may lawfully be exchanged in the future. It seems that almost any information exchange system might be regarded as falling within the scope of that prohibition.

166 Furthermore, Article 2 of the Decision is nugatory, since it relates to measures which were abandoned when the information exchange system was reorganised and the CEPI-Cartonboard association created (see point 106 of the Decision).

167 In the alternative, the applicant contends that Article 2 must be annulled to the extent that it prohibits the exchange of any data (even if aggregated) concerning the present state of the order inflow and backlog, that is to say, of purely statistic data [see the Commission notice concerning agreements, decisions and concerted practices in the field of cooperation between undertakings (OJ 1968 C 75, as corrected in OJ C 84, p. 14) and the Seventh Report on Competition Policy paragraph 7].

168 The exchange of such information does not conflict with the principle that each economic operator must determine independently the policy which he intends to adopt on the market (Case T-4/89 BASF v Commission [1991] ECR II-1523, paragraph 240). The exchange of purely historical data that are not capable of being individualised is contrary to the Treaty only where it is accompanied by more extensive cooperation between the undertakings.

169 Lastly, the applicant contends that Article 2 of the Decision prejudges the result of CEPI-Cartonboard's notification to the Commission of an information exchange system. When a notification is made, the Commission is required to ascertain whether the conditions for an exemption are satisfied. However, the exchange of historical data on the state of the order inflow and backlog is the very subject-matter of the information exchange system notified by CEPI-Cartonboard.

GROUNDS CONTINUED UNDER DOC.NUM: 694A0347.1

170 The Commission does not accept that the prohibition on the future exchange of information is too vague. It suffices that the operative part and the grounds of the decision indicate the anticompetitive conduct which is to be brought to an end (judgment in Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 122 to 124). In the present case, Article 2(a) to (c) of the Decision themselves contain a detailed description of the nature of the information which may be exchanged. Furthermore, the findings of fact concerning the information exchanged were set out in detail in points 61 to 68, 105 and 106 of the Decision. In addition, the Decision contains a precise description of the restrictive effects which the information exchange had on the conditions of competition (points 134 and 166). The scope of the prohibition is therefore clear from Article 2 of the Decision, when read in conjunction with the statement of reasons for it.

171 The second and third subparagraphs of Article 2 of the Decision merely explain how a lawful information exchange may be created.

172 Nor does the Commission accept that the prohibition is too wide. The information exchange system was incompatible with Article 85 of the Treaty, even after the PWG had modified it on 27 November 1991 (points 105 and 106 of the Decision). When the information exchange is assessed, it is necessary to take into account the high degree of concentration in the sector and the detailed knowledge of the structure and policy of the various undertakings as a result of their former cooperation in the PG Paperboard. On concentrated markets residual competition consists principally in the uncertainty and secrecy existing between the main suppliers with regard to market conditions. The exchange of information on order backlogs at frequent intervals gives the market such artificial transparency that the existing residual competition ultimately ceases to have any effect.

173 Furthermore, as a result of the weekly exchange of statistics on order entries, combined with capacity reports, capacity utilisation in the sector could be ascertained and downtime planned throughout the sector. The producers could thereby maintain a balance between supply and demand and counteract any fall in prices in the event of a fall in demand. The existence of those effects does not depend upon whether the data is in the form of individual data or relates to orders which have already been placed. The Commission therefore correctly concluded that an exchange of information on the state of order entry and order backlog, even if aggregated, is contrary to Article 85(1) of the Treaty; that conclusion is in line with the information obtained in the course of its investigation of the case.

174 Lastly, the information exchange system notified by CEPI-Cartonboard is separate from the information exchange with which the Decision is concerned, because CEPI-Cartonboard has made certain amendments to its system in order to take account of the Commission's objections. It did not therefore need to consider a possible exemption in the context of the present procedure.

Findings of the Court

175 It will be recalled that Article 2 of the Decision provides as follows:

`The undertakings named in Article 1 shall forthwith bring the said infringement to an end, if they have not already done so. They shall henceforth refrain in relation to their cartonboard activities from any agreement or concerted practice which may have the same or a similar object or effect, including any exchange of commercial information:

(a) by which the participants are directly or indirectly informed of the production, sales, order backlog, machine utilisation rates, selling prices, costs or marketing plans of other individual producers; or

(b) by which, even if no individual information is disclosed, a common industry response to economic conditions as regards price or the control of production is promoted, facilitated or encouraged;

or

(c) by which they might be able to monitor adherence to or compliance with any express or tacit agreement regarding prices or market sharing in the Community.

Any scheme for the exchange of general information to which they subscribe, such as the Fides system or its successor, shall be so conducted as to exclude not only any information from which the behaviour of individual producers can be identified but also any data concerning the present state of the order inflow and backlog, the forecast utilisation rate of production capacity (in both cases, even if aggregated) or the production capacity of each machine.

Any such exchange system shall be limited to the collection and dissemination in aggregated form of production and sales statistics which cannot be used to promote or facilitate common industry behaviour.

The undertakings are also required to abstain from any exchange of information of competitive significance in addition to such permitted exchange and from any meetings or other contact in order to discuss the significance of the information exchanged or the possible or likely reaction of the industry or of individual producers to that information.

A period of three months from the date of the communication of this Decision shall be allowed for the necessary modifications to be made to any system of information exchange.'

176 As is apparent from point 165 of the Decision, Article 2 was adopted in accordance with Article 3(1) of Regulation No 17. By virtue of that provision, where the Commission finds that there is an infringement, inter alia, of Article 85 of the Treaty, it may require the undertakings concerned to bring the infringement to an end.

177 It is settled law that Article 3(1) of Regulation No 17 may be applied so as to include an order directed at bringing an end to certain acts, practices or situations which have been found to be unlawful (Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, paragraph 45, Case C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743, paragraph 90), and also at prohibiting the adoption of similar conduct in the future (Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph 220).

178 Moreover, since Article 3(1) of Regulation No 17 is to be applied according to the nature of the infringement found, the Commission has the power to specify the extent of the obligations on the undertakings concerned in order to bring an infringement to an end. Such obligations on the part of the undertakings may not, however, exceed what is appropriate and necessary to attain the objective sought, namely to restore compliance with the rules infringed (judgment in RTE and ITP v Commission, cited above, paragraph 93; to the same effect, see Case T-7/93 Langnese-Iglo v Commission [1995] ECR II-1533, paragraph 209, and Case T-9/93 Schöller v Commission [1995] ECR II-1611, paragraph 163).

179 As regards, first, the applicant's argument that the Commission committed an error of law in adopting Article 2 of the Decision without having first expressed its view on the compatibility with Article 85 of the information exchange system notified by CEPI-Cartonboard, the Court observes that the notification made by that association on 6 December 1993 related to a new information exchange system, separate from that considered by the Commission in the Decision. When adopting Article 2 of the contested decision, the Commission could not therefore assess the legality of the new system in the context of that decision. When it adopted Article 2, it was therefore entitled simply to examine and express a view on the old information exchange system.

180 Furthermore, the Court rejects the applicant's argument that the Commission cannot exercise its power to give directions to the applicant under Article 3(1) of Regulation No 17 where those directions relate to aspects of an information exchange system which were abandoned before the decision was adopted. In that regard, it suffices to point out that the applicant disputes the substantive scope of the directions in Article 2 of the Decision, which demonstrates the Commission's legitimate interest in specifying the extent of the obligations on the undertakings, including the applicant (see, Case 7/82 GVL v Commission [1983] ECR 483, paragraphs 26 to 28).

181 Next, in order to verify whether, as the applicant claims, the scope of the direction in Article 2 of the Decision is too wide, it is necessary to consider the extent of the various prohibitions it places on the undertakings.

182 The prohibition in the second sentence of the first paragraph of Article 2, requiring the undertakings to refrain in future from any agreement or concerted practice which may have an effect which is the same as, or similar to, those of the infringements found in Article 1 of the Decision, is aimed solely at preventing the undertakings from repeating the behaviour found to be unlawful. Consequently, in adopting such directions, the Commission has not exceeded the powers conferred on it by Article 3 of Regulation No 17.

183 The provisions of subparagraphs (a), (b) and (c) of the first paragraph of Article 2 are directed more specifically at prohibiting future exchange of commercial information.

184 The direction in subparagraph (a) of the first paragraph of Article 2, which prohibits any future exchange of commercial information by which the participants directly or indirectly obtain individual information on competitors, presupposes a finding by the Commission in the Decision that an information exchange of such a nature is unlawful under Article 85(1) of the Treaty.

185 It should be noted that Article 1 of the Decision does not state that the exchange of individual commercial information in itself constitutes an infringement of Article 85(1) of the Treaty.

186 It states more generally that the undertakings infringed that article of the Treaty by participating in an agreement and concerted practice whereby the undertakings, inter alia, `exchanged commercial information on deliveries, prices, plant standstills, order backlogs and machine utilisation rates in support of the above measures'.

187 However, since the operative part of a decision must be interpreted in the light of the statement of reasons for it (Suiker Unie and Others v Commission, cited above, paragraph 122), it should be noted that the second paragraph of point 134 of the Decision states:

`The exchanging by producers of normally confidential and sensitive individual commercial information in meetings of the PG Paperboard (mainly the JMC) on order backlog, machine closures and production rates was patently anti-competitive, being intended to ensure that the conditions for implementing agreed price initiatives were as propitious as possible. ...'

188 Consequently, as the Commission duly found in the Decision that the exchange of individual commercial information in itself constituted an infringement of Article 85(1) of the Treaty, the future prohibition of such an exchange of information satisfies the conditions for the application of Article 3(1) of Regulation No 17.

189 The prohibitions relating to the exchanges of commercial information referred to in subparagraphs (b) and (c) of the first paragraph of Article 2 of the Decision must be considered in the light of the second, third and fourth paragraphs of that article, which support what is expressed in those subparagraphs. It is in this context that it is necessary to determine whether, and if so to what extent, the Commission considered the exchanges in question to be illegal, since the extent of the obligations on the undertakings must be restricted to that which is necessary in order to bring their conduct into line with what is lawful under Article 85(1) of the Treaty.

190 The Decision must be interpreted as meaning that the Commission considered the Fides system to be contrary to Article 85(1) of the Treaty in that it underpinned the cartel (point 134, third paragraph, of the Decision). Such an interpretation is borne out by the wording of Article 1 of the Decision, from which it is apparent that the commercial information was exchanged between the undertakings `in support of the ... measures' considered to be contrary to Article 85(1) of the Treaty.

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