Judgment of the Court of First Instance (Fourth Chamber) of 20 March 2002. - HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG and Others v Commission of the European Communities. - Competition - Cartel - District heating pipes - Article 85 of the EC Treaty (now Article 81 EC) - Boycott - Fine - Guidelines on the method of setting fines - Non-retroactivity. - Case T-9/99.



European Court reports 2002 Page II-01487



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1. Procedure - Measures of inquiry - Request for production of a document - Commission's internal documents - Disclosure excluded except in exceptional circumstances - Burden of proof falling on the applicant - Application to the report of the Hearing Officer

(EC Treaty, Art. 85(1) (now Art. 81(1) EC); Rules of Procedure of the Court of First Instance, Arts 65 and 66(1))

2. Competition - Agreements, decisions and concerted practices - Undertaking - Definition - Economic unit - Attribution of the infringements - Effect of the fact that the group of companies constituting the economic unit does not have its own legal personality - Joint and several liability of the companies of which that group consists

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

3. Competition - Community rules - Infringements - Attribution of responsibility - Legal person responsible for the operation of the undertaking at the material time - Exceptions - Economic successor responsible where the legal person responsible for the infringement has ceased to exist or for the purpose of safeguarding the effectiveness of the rules on competition

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4. Competition - Agreements, decisions and concerted practices - Complex infringement comprising elements both of an agreement and of a concerted practice - Classified singly as an agreement and/or concerted practice - Whether permissible - Consequences as to the evidence required

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

5. Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Definition - Gentlemen's agreement - Whether included - Effect of inapplicability of the penalty of nullity provided for by Article 85(2) of the Treaty (now Article 81(2) EC) - None

(EC Treaty, Art. 85(1) and (2) (now Art. 81(1) and (2) EC))

6. Competition - Agreements, decisions and concerted practices - Concerted practice - Definition - Need for a causal link between the concerted action as between the undertakings and their conduct on the market - Presumption that the link exists

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

7. Competition - Agreements, decisions and concerted practices - Participation in meetings held by undertakings for an anti-competitive purpose - Sufficient basis for concluding that, if an undertaking has not distanced itself from the decisions taken, it participated in the subsequent arrangements - Participation allegedly under pressure - Not a factor such as to justify failure by an undertaking to notify the competent authorities

(EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulation No 17, Art. 3)

8. Competition - Agreements, decisions and concerted practices - Imputed to an undertaking - Responsibility for the conduct of other undertakings in the context of the same infringement - Whether permissible - Criteria - Breach of the principle that penalties should be personal, of the rules pertaining to proof and of the rights of the defence - None

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

9. Competition - Administrative procedure - Rules governing languages - Annexes to the statement of objections and annexes to the answers of other undertakings being investigated to the Commission's requests for information - To be available in the original language - Breach of the right to be heard and of the principle of equality of arms - None - Justification

(Council Regulations No 1, Art. 3, and No 17, Art. 19(1); Commission Regulation No 99/63, Arts 2(1) and 4)

10. Competition - Administrative procedure - Business secrets - Qualifications - Limits - Protection of business secrets

(Council Regulation No 17, Arts 19(2), 20(2) and 21)

11. Competition - Administrative procedure - Business secrets - Disclosure of confidential information by Commission officials - Effect on the legality of the decision finding there to be an infringement - None

(EC Treaty, Art. 214 (now Art. 287 EC); Council Regulation No 17, Art. 20(2))

12. Competition - Administrative procedure - Inapplicability of Article 6 of the European Convention on Human Rights - Applicability of the general principles of Community law - Effects on the Commission's rights and obligations as regards the calling of witnesses for and against

(Council Regulation No 17, Art. 19(2); Commission Regulation No 99/63, Arts 3(3) and 7)

13. Competition - Administrative procedure - Hearings - Hearing Officer's obligation to obtain approval of the minutes of the hearing before presenting his report - None

(Commission Regulation No 99/63, Art. 9(4); Commission Decision 94/810, Arts 7(4) and 8)

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

(Commission Regulation No 99/63)

15. Competition - Fines - Amount - Determination thereof - Maximum amount - Calculation - Turnover to be taken into account - Cumulative turnover of all the companies constituting the economic unit acting as an undertaking

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

16. Competition - Fines - Amount - Methods of calculation - Conversion into ecu of the undertakings' turnover figure for the reference year on the basis of the average exchange rate over the same year - Whether permissible

(Council Regulation No 17, Art. 15)

17. Competition - Administrative procedure - Request for information - Freedom of undertakings as to whether or not to reply to questions asked under Article 11(1) of Regulation No 17 - Consequence of agreeing to reply - Obligation to provide accurate information

(Council Regulation No 17, Arts 11(1) and 15(1)(b))

18. Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Financial situation of the undertaking concerned - Excluded

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

Summary

1. During the proceedings before the Community Courts internal Commission documents are not to be communicated to the applicants, unless the circumstances of the case are exceptional and the applicants make out a plausible case for the need to do so. That is the case as regards the expert accountant's report, whose purpose, as a purely internal Commission document solely in the nature of an opinion for the Commission, is not to set forth fresh objections or adduce fresh evidence against the undertakings involved in a proceeding under Article 85(1) of the Treaty (now Article 81(1) EC) and which does not constitute a decisive factor which must be taken into account by the Community judicature when exercising its power of review. That restriction on access to internal documents is justified by the need to ensure the proper functioning of the institution concerned when dealing with infringements of the Treaty competition rules. Thus, the application for measures of inquiry concerning production of the expert accountant's report must be rejected, since the applicants have not shown how production of that report might be relevant to the principle of respect for the rights of the defence.

( see para. 40 )

2. In prohibiting undertakings inter alia from entering into agreements or participating in concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition within the common market, Article 85(1) of the Treaty (now Article 81(1) EC) is aimed at economic units which consist of a unitary organisation of personal, tangible and intangible elements, which pursue a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision.

In that connection, there is no need for the economic entity identified as a group to have legal personality. In competition law, the term undertaking must be understood as designating an economic unit for the purpose of the subject-matter of the agreement in question even if in law that economic unit consists of several persons, natural or legal. In the absence of a person at its head to which, as the person responsible for coordinating the group's activities, responsibility can be imputed for the infringements committed by the various component companies of the group, the Commission is entitled to hold the component companies jointly and severally responsible for all the acts of the group, in order to ensure that the formal separation between those companies, resulting from their separate legal personality, does not prevent a finding that they have acted jointly on the market for the purposes of applying the rules on competition.

( see paras 54, 66 )

3. It falls, in principle, to the natural or legal person managing the undertaking in question when the infringement of the Community rules on competition was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking. The situation would be different only where the legal person or persons responsible for running the undertaking had ceased to exist in law after the infringement has been committed. It is none the less true that in certain circumstances an infringement of the rules on competition may be imputed to the economic successor of the legal person responsible, even where the latter has not ceased to exist on the date of adoption of the decision finding the infringement, so that the effectiveness of those rules will not be compromised owing to the changes to, inter alia, the legal form of the undertakings concerned.

The Commission errs in law if it holds jointly and severally liable for the fine imposed on a group of companies an undertaking which did not yet exist at the time when the infringement was committed, whilst the natural and legal persons involved in that infringement continued their commercial activities in full and whilst no evidence has been adduced of strategies adopted for the specific purpose of avoiding the penalty incurred.

( see paras 103-104, 106-108 )

4. In the context of a complex infringement which involves many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, for each undertaking and for any given moment, as an agreement or a concerted practice, as in any event both those forms of infringement are covered by Article 85 of the Treaty (now Article 81 EC). The Commission is therefore entitled to classify such a single infringement as an agreement and a concerted practice or as an agreement and/or a concerted practice, since the infringement includes elements which are to be classified as an agreement and elements which are to be classified as a concerted practice. It would be artificial to split up continuous conduct, characterised by a single purpose, by treating it as consisting of a number of separate infringements.

In such a situation, the dual characterisation must be understood not as requiring, simultaneously and cumulatively, proof that each of those factual elements presents the constituent elements both of an agreement and of a concerted practice, but rather as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 85(1) of the Treaty (now Article 81(1) EC), which lays down no specific category for a complex infringement of this type.

( see paras 186-187 )

5. In order for there to be an agreement within the meaning of Article 85(1) of the Treaty (now Article 81(1) EC), it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way. That is the case where there is a gentlemen's agreement between a number of undertakings representing the faithful expression of such a joint intention concerning a restriction of competition. In those circumstances, the question whether the undertakings in question considered themselves bound - in law, in fact or morally - to adopt the agreed conduct is therefore irrelevant.

In that regard, the opposite conclusion cannot be inferred from the provision in Article 85(2) of the Treaty (now Article 81(2) EC) that any agreement referred to in Article 85(1) is automatically void, which is intended for cases where a legal obligation is actually in issue. The fact that only binding agreements can, by their nature, be rendered void does not mean that non-binding agreements must escape the prohibition laid down in Article 85(1) of the Treaty.

( see paras 199-201 )

6. It follows from the actual terms of Article 85(1) of the Treaty (now Article 81(1) EC), that a concerted practice implies, besides undertakings concerting with each other, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two. In that regard, subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market.

( see paras 213, 216 )

7. Where an undertaking participates, even if not actively, in meetings between undertakings with an anti-competitive object and does not publicly distance itself from what was discussed at them, thus giving the impression to the other participants that it subscribes to the outcome of the meetings and will act in conformity with it, it may be concluded that it is participating in the cartel resulting from those meetings. It is irrelevant, in that regard, whether the undertaking in question attends meetings with undertakings having a dominant position or, at least, an economically superior position on the market. An undertaking which participates in meetings with an anti-competitive object, even under constraint from other participants with greater economic power, can always report the anti-competitive activities in question to the Commission rather than continue to participate in the meetings.

( see paras 223-224, 226 )

8. An undertaking which has participated in a single complex infringement of the rules on competition by its own conduct, which amounts to an agreement or a concerted practice with an anti-competitive object within the meaning of Article 85(1) of the Treaty (now Article 81(1) EC) and which was intended to play a part in bringing about the infringement as a whole, may also be responsible for the conduct of other undertakings followed in the context of the same infringement throughout the period of its participation in the infringement, where it is proved that the undertaking in question is aware of the unlawful conduct of the other participants, or can reasonably foresee such conduct, and is prepared to accept the risk. Such a conclusion is not at odds with the principle that responsibility for such infringements is personal in nature, nor does it neglect individual analysis of the evidence adduced, in disregard of the applicable rules of evidence, or infringe the rights of defence of the undertakings involved.

( see para. 231 )

9. In the context of proceedings instigated pursuant to the Community rules on competition, the annexes to the statement of objections which do not emanate from the Commission are not documents for the purposes of Article 3 of Regulation No 1 determining the languages to be used by the European Economic Community, but must be regarded as supporting documentation on which the Commission relies and must therefore be brought to the attention of the addressee of the decision as they are, so that the addressee can apprise himself of the interpretation of them which the Commission has adopted and on which it has based both its statement of objections and its decision. It follows that the Commission, in communicating those annexes in their original language, does not infringe the right to be heard of the undertakings concerned.

The same considerations apply to the documents annexed by other undertakings to their replies to the Commission's requests for information without there being any grounds for complaining that the principle of equality of arms has been infringed, since the original of the documents constitutes the only relevant evidence.

( see paras 327, 329-330 )

10. The obligation of professional secrecy laid down in Article 20(2) of Regulation No 17 for the purposes of proceedings implementing the competition rules is mitigated in regard to third parties on whom Article 19(2) of that regulation confers the right to be heard, that is to say in regard, in particular, to a third party who has made a complaint. The Commission may communicate to such a party certain information covered by the obligation of professional secrecy in so far as it is necessary to do so for the proper conduct of the investigation. However, that power does not apply to all documents of the kind covered by the obligation of professional secrecy. Article 21 of the regulation, which provides for the publication of certain decisions, requires the Commission to have regard to the legitimate interest of undertakings in the protection of their business secrets. Although they deal with particular situations, those provisions must be regarded as the expression of a general principle which applies during the course of the administrative procedure.

( see para. 364 )

11. On the assumption that Commission officials are responsible, in breach of the provisions governing the obligation of professional secrecy, for leaks of confidential information used in the course of the administrative proceedings instigated for infringement of the Community competition rules, that would in any event not affect the legality of the decision, since it has not been proved that the decision would not in fact have been adopted or would have been different had the disputed statements not been made.

( see para. 370 )

12. Even though the Commission is not a tribunal within the meaning of Article 6 of the European Convention on Human Rights, and even though the fines imposed by the Commission are not of a criminal law nature, the Commission must nevertheless observe the general principles of Community law during the administrative procedure.

In that regard, the fact that the provisions of Community competition law do not place the Commission under an obligation to call witnesses whom the undertaking concerned wishes to give evidence on its behalf but allows the Commission a reasonable margin of discretion to decide how expedient it may be to hear such persons is not contrary to those principles. Although the Commission may hear natural or legal persons where it deems it necessary to do so, it is not entitled to call witnesses to testify against the undertaking concerned without their agreement.

( see paras 383, 391-392 )

13. Neither Regulation No 99/63 nor Decision 94/810 on the terms of reference of Hearing Officers in competition procedures before the Commission precludes the Hearing Officer from submitting to the Director-General for competition the report provided for in Article 8 of Decision 94/810 before the minutes of the hearing have been approved, pursuant to Article 9(4) of Regulation No 99/63 and Article 7(4) of Decision 94/810, by each person heard. The purpose of Article 9(4) of Regulation No 99/63 is to assure the persons heard that the minutes contain a true record of the substance of what they have said. The minutes are therefore submitted to the parties for their approval in order to enable them to check what they said at the hearing, not for the purpose of adducing fresh evidence which the Hearing Officer would be obliged to take into account.

( see paras 407-408 )

14. The provisional nature of the minutes of the hearing submitted to the Advisory Committee on agreements and dominant positions and to the Commission could only amount to a defect in the administrative procedure capable of vitiating the decision which results therefrom if the document in question was drawn up in such a way as to be misleading in a material respect.

( see para. 410 )

15. The fact that several companies are held jointly and severally liable for a fine does not mean, as regards the application of the maximum amount of 10% of turnover laid down by Article 15(2) of Regulation No 17, that the amount of the fine is limited, for the companies held jointly and severally responsible, to 10% of the turnover achieved by each of those companies during the last financial year. The maximum amount of 10% of turnover within the meaning of that provision must be calculated on the basis of the total turnover of all the companies constituting the economic entity acting as an undertaking for the purposes of Article 85 of the Treaty (now Article 81 EC). Thus, in the case of an undertaking constituted by a group of companies acting as a single economic unit, only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question. Within the limit laid down by Article 15(2) of Regulation No 17, the Commission may thus choose which turnover to take in terms of territory and products in order to determine the fine.

( see paras 528-529, 541 )

16. In calculating a fine for infringement of the Community rules on competition on the basis of turnover in a given reference year, expressed in national currency, the Commission is correct to convert that turnover into ecu on the basis of the average exchange rate for that reference year, and not on the basis of the exchange rate in force on the date of adoption of the decision.

( see para. 543 )

17. Regulation No 17 places the undertaking being investigated under a duty of active cooperation, which means that it must be prepared to make any information relating to the object of the inquiry available to the Commission. Even though the undertakings are free to reply or not to reply to questions put to them under Article 11(1) of Regulation No 17, it follows from the penalty provided for in the first part of the sentence in Article 15(1)(b) of that regulation that, having agreed to reply, the undertakings are required to provide accurate information.

( see para. 561 )

18. The Commission is not required, when determining the amount of the fine to be imposed for an infringement of the Community rules on competition, to take into account the poor financial situation of an undertaking concerned, by way of a mitigating circumstance, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to market conditions.

( see paras 596-597 )

Parties

In Case T-9/99,

HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG, established in Rosenheim (Germany),

HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH, Verwaltungsgesellschaft, established in Rosenheim,

Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH, established in Rosenheim,

Isoplus Fernwärmetechnik Gesellschaft mbH, established in Hohenberg (Austria),

Isoplus Fernwärmetechnik GmbH, established in Sondershausen (Germany),

represented by P. Krömer and F. Nusterer, lawyers, with an address for service in Luxembourg,

applicants,

v

Commission of the European Communities, represented by W. Mölls and É. Gippini Fournier, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for, primarily, annulment of Commission Decision 1999/60/EC of 21 October 1998 relating to a proceeding under Article 85 of the EC Treaty (Case No IV/35.691/E-4: - Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in the alternative, reduction of the fine imposed on the applicants by that decision,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: P. Mengozzi, President, V. Tiili and R.M. Moura Ramos, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 20 October 2000,

gives the following

Judgment

Grounds

Background

1 The applicants are companies governed by German and Austrian law operating in the district heating sector and are regarded by the Commission as belonging to the Henss/Isoplus group.

...

8 On 21 October 1998, the Commission adopted Decision 1999/60/EC relating to a proceeding under Article 85 of the EC Treaty (Case No IV/35.691.E-4: - Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1), corrected before publication by a decision of 6 November 1998 (C(1998) 3415 final) (the Decision or the contested decision) finding that various undertakings and, in particular, certain of the applicants had participated in a series of agreements and concerted practices within the meaning of Article 85(1) of the EC Treaty (now Article 81(1) EC) (hereinafter the cartel).

9 According to the Decision, at the end of 1990 an agreement was reached between the four Danish producers of district heating pipes on the principle of general cooperation on their domestic market. The parties to the agreement were ABB IC Møller A/S, the Danish subsidiary of the Swiss/Swedish group ABB Asea Brown Boveri Ltd (ABB), Dansk Rørindustri A/S, also known as Starpipe (Dansk Rørindustri), Løgstør Rør A/S (Løgstør) and Tarco Energi A/S (Tarco) (the four together being hereinafter referred to as the Danish producers). One of the first measures was to coordinate a price increase both for the Danish market and the export markets. For the purpose of sharing the Danish market, quotas were agreed upon and then implemented and monitored by a contact group consisting of the sales managers of the undertakings concerned. For each commercial project (project), the undertaking to which the contact group had assigned the project informed the other participants of the price it intended to quote and they then submitted tenders at a higher price in order to protect the supplier designated by the cartel.

10 According to the Decision, two German producers, the Henss/Isoplus group and Pan-Isovit GmbH, joined in the regular meetings of the Danish producers from the autumn of 1991. In these meetings negotiations took place with a view to sharing the German market. In August 1993, these negotiations led to agreements fixing sales quotas for each participating undertaking.

11 Still according to the Decision, an agreement was reached between all these producers in 1994 to fix quotas for the whole of the European market. This European cartel involved a two-tier structure. The directors' club, consisting of the chairmen or managing directors of the undertakings participating in the cartel, allocated quotas to each of these undertakings both in the market as a whole and in each of the national markets, including Germany, Austria, Denmark, Finland, Italy, the Netherlands and Sweden. For certain national markets, contact groups consisting of local sales managers were set up and given the task of administering the agreements by assigning individual projects and coordinating tender bids.

12 With regard to the German market, the Decision states that following a meeting between the six main European producers (ABB, Dansk Rørindustri, the Henss/Isoplus group, Løgstør, Pan-Isovit and Tarco) and Brugg Rohrsysteme GmbH (Brugg) on 18 August 1994, a first meeting of the contact group for Germany was held on 7 October 1994. Meetings of this group continued long after the Commission carried out its investigations at the end of June 1995 although, from that time on, they were held outside the European Union, in Zurich. The Zurich meetings continued until 25 March 1996, i.e. several days after some of the undertakings had received the requests for information sent by the Commission.

13 As a characteristic feature of the cartel, the Decision refers in particular to the adoption and implementation of concerted measures to eliminate Powerpipe, the only major undertaking which was not a member. The Commission states that certain members of the cartel recruited key employees of Powerpipe and gave Powerpipe to understand that it should withdraw from the German market. Following the award to Powerpipe of an important German project, a meeting is said to have taken place in Düsseldorf in March 1995, attended by the six abovementioned producers and Brugg. According to the Commission, it was decided at that meeting to organise a collective boycott of Powerpipe's customers and suppliers. The boycott was subsequently implemented.

14 In the Decision, the Commission sets out the reasons why not only the express market-sharing arrangements concluded between the Danish producers at the end of 1990 but also the arrangements made after October 1991, taken as a whole, can be considered to constitute an agreement prohibited under Article 85(1) of the EC Treaty. Furthermore, the Commission stresses that the Danish and European cartels were merely the manifestation of a single cartel which originated in Denmark but which from the start had the long-term objective of extending the control of participants to the whole market. According to the Commission, the continuous agreement between the producers had an appreciable effect on trade between Member States.

15 On those grounds, the operative part of the Decision is as follows:

Article 1

ABB Asea Brown Boveri Ltd, Brugg Rohrsysteme GmbH, Dansk Rørindustri A/S, Henss/Isoplus Group, Ke-Kelit Kunststoffwerk Ges mbH, Oy KWH Tech AB, Løgstør Rør A/S, Pan-Isovit GmbH, Sigma Tecnologie Di Rivestimento S.r.l. and Tarco Energie A/S have infringed Article 85(1) of the Treaty by participating, in the manner and to the extent set out in the reasoning, in a complex of agreements and concerted practices in the pre-insulated pipes sector which originated in about November/December 1990 among the four Danish producers, was subsequently extended to other national markets and brought in Pan-Isovit and Henss/Isoplus, and by late 1994 consisted of a comprehensive cartel covering the whole of the common market.

The duration of the infringements was as follows:

...

- in the case of [the] Henss/Isoplus [group], from about October 1991 up to [at least March or April 1996],

...

The principal characteristics of the infringement consisted in:

- dividing national markets and eventually the whole European market amongst themselves on the basis of quotas,

- allocating national markets to particular producers and arranging the withdrawal of other producers,

- agreeing prices for the product and for individual projects,

- allocating individual projects to designated producers and manipulating the bidding procedure for those projects in order to ensure that the assigned producer was awarded the contract in question,

- in order to protect the cartel from competition from the only substantial non-member, Powerpipe AB, agreeing and taking concerted measures to hinder its commercial activity, damage its business or drive it out of the market altogether.

...

Article 3

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

...

(d) [the] Henss/Isoplus group, a fine of ECU 4 950 000, for which the following companies are jointly and severally liable:

- HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co KG,

- HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH Verwaltungsgesellschaft,

- Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH (formerly Dipl-Kfm Walter Henss GmbH Rosenheim),

- Isoplus Fernwärmetechnik GmbH, Sondershausen,

- Isoplus Fernwärmetechnik Gesellschaft mbH - stille Gesellschaft,

- Isoplus Fernwärmetechnik Ges. mbH, Hohenberg;

...

Article 5

This Decision is addressed to:

...

(d) [The] Henss/Isoplus group, represented by:

- HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co KG, Aisingerstrasse 12, D-83026 Rosenheim,

- HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH, Verwaltungsgesellschaft, Aisingerstrasse 12, D-83026 Rosenheim,

- Isoplus Fernwärmetechnik GmbH, Aisingerstrasse 12, D-83026 Rosenheim,

- Isoplus Fernwärmetechnik Ges. mbH, Furthoferstraße 1A, A-3192 Hohenberg,

- Isoplus Fernwärmetechnik Ges. mbH - stille Gesellschaft, Furthoferstraße 1A, A-3192 Hohenberg,

- Isoplus Fernwärmetechnik GmbH, Gluckaufstraße 34, D-99706 Sondershausen;

...

...

Relations between the undertakings regarded as belonging to the Henss/Isoplus group

25 Among the undertakings regarded by the Commission as belonging to the Henss/Isoplus group and involved in the present proceedings, HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co KG (HFB KG) is a limited partnership governed by German law, formed on 15 January 1997. The partner with unlimited personal liability for the partnership's debts is HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH, Verwaltungsgesellschaft (HFB GmbH), a limited liability company also formed on 15 January 1997. The limited partners of HFB KG, who are liable up to a certain amount, are Mr and Mrs Henss and Mr and Mrs Papsdorf. Mr Henss is the major partner of HFB KG and also holds the majority of the shares in HFB GmbH.

26 The applicant Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH (Isoplus Rosenheim), formerly Dipl.-Kfm. Walter Henss GmbH (Henss Rosenheim) until 1 January 1997, is a company governed by German law. Following the transfer to HFB KG of the shares which Mr and Mrs Henss held in Isoplus Rosenheim and of the shares which Mr and Mrs Papsdorf held in Dipl.-Kfm. Walter Henss Fernwärmerohrleitungsbau GmbH, Berlin (Henss Berlin), HFB KG held 100% of the shares in those two companies and Henss Berlin was taken over by Isoplus Rosenheim on 3 December 1997.

27 Isoplus Fernwärmetechnik Ges. mbH, Hohenberg (Isoplus Hohenberg) is an Austrian company the majority of whose shares are owned, through a trustee, by Mr Henss.

28 Isoplus Fernwärmetechnik GmbH, Sondershausen (Isoplus Sondershausen) is a German company all of whose shares are held, nominally, by Isoplus Hohenberg, which to a certain extent holds them as a trustee on behalf of third parties.

29 In the district heating market, Isoplus Rosenheim acts mainly as a distributor. Isoplus Hohenberg and Isoplus Sondershausen are production companies. HFB KG and HFB GmbH act only as shareholding companies.

30 In the Decision, the Commission regarded Isoplus Rosenheim, Henss Berlin, Isoplus Hohenberg and Isoplus Sondershausen as a de facto Henss/Isoplus group. The Commission sent the statement of objections to those four undertakings, having established that they were all linked to Mr Henss, who had attended the meetings of the directors' club. According to the Decision, it was only after sending the statement of objections that the Commission learnt of the existence of a partnership agreement (Einbringungsvertrag) of 15 January 1997 lodged at the commercial registry, which showed that Mr and Mrs Henss and Mr and Mrs Papsdorf had transferred their shareholdings to HFB KG in January 1997.

31 The Commission learnt from the same partnership agreement that Mr Henss was also the owner of a limited partnership, Isoplus Fernwärmetechnik Ges. mbH - stille Gesellschaft (Isoplus stille Gesellschaft), whose shares were held by a trustee.

32 As regards Isoplus Hohenberg, the Commission learnt from the partnership agreement that Mr Henss owned shares in that company through trustees, although the applicants' legal advisers denied that throughout the administrative procedure. During the present proceedings, the parties no longer disagree as to whether Mr Henss actually held the majority of the share capital in Isoplus Hohenberg.

33 As regards the shares in Isoplus Sondershausen held by Isoplus Hohenberg, the Commission learnt from the partnership agreement that one third of the capital of Isoplus Sondershausen, which was held by Isoplus Hohenberg as trustee for Mr and Mrs Papsdorf, was transferred to HFB KG. In the present proceedings, the applicants confirm that a further third of the capital of Isoplus Sondershausen was also held by Isoplus Hohenberg as trustee. The applicants accept that that information was not communicated to the Commission during the administrative procedure.

The applications for measures of inquiry

34 Pursuant to Article 68 of the Rules of Procedure of the Court of First Instance, the applicants have applied for Mr Boysen, Mr B. Hansen, Mr N. Hansen, Mr Hybschmann, Mr Jespersen and Mr Volandt to be called as witnesses in order to prove that neither the applicants nor the Henss/Isoplus group participated in an illegal practice or measure or in any other similar conduct for the purposes of Article 85(1) of the EC Treaty before October 1994. On that point, the applicants have stated that they are prepared to lodge security for costs.

35 In addition, the applicants have requested the Court to order the Commission to lodge the entire case-file relating to the present case, including the annexes and also the report of the expert accountant relating to the present file.

36 First, the Court observes that, under Article 68(1) of its Rules of Procedure, it may, either of its own motion or on application by a party, and after hearing the Advocate General and the parties, order that certain facts be proved by witnesses. According to the final subparagraph of that provision, an application by a party for the examination of a witness is to state precisely about what facts and for what reasons the witness should be examined.

37 In the present case, although the applicants have referred in their pleadings, in particular in paragraphs 20, 40, 50, 66, 67, 68, 69, 70, 71, 94, 96, 125 and 142 of the application, to certain persons who could act as witnesses in relation to the facts set out in each of the paragraphs in question, the names of the six persons whom they expressly requested be called as witnesses before the Court are not to be found in those paragraphs. The Court therefore finds that, for those six persons, the applicants have failed to state the facts in respect of which proof by witnesses should be ordered.

38 Consequently, and without there being any need to consider whether it is appropriate to hear the six persons in question, the Court holds that the application for witnesses to be heard should not be granted.

39 Second, as regards the lodging of the case-file, the Court observes that during the litigation procedure, the Commission, of its own initiative, by letter of 26 July 1997 lodged the administrative files relating to all the cases concerned. The applicants were informed that the Commission had done so and that the files could be consulted at the Registry. In those circumstances, there is no longer any need to grant the applicants' application for the lodging of the case-file.

40 In so far as the applicants have applied for the expert accountant's report to be lodged, that report is in any event a purely internal Commission document, which is solely in the nature of an opinion for the Commission, and its purpose is not to set forth fresh objections or adduce fresh evidence against the undertakings; accordingly, it does not constitute a decisive factor which must be taken into account by the Community judicature when exercising its power of review (Order in Case 212/86 R ICI v Commission, not published in the Reports of Cases before the Court, paragraphs 5 to 8; Case T-2/89 Petrofina v Commission [1991] ECR II-1087, paragraphs 53 and 54; and Case T-9/89 Hüls v Commission [1992] ECR II-499, paragraphs 86 and 87). It is settled case-law that during the proceedings before the Community Courts internal Commission documents are not to be communicated to the applicants, unless the circumstances of the case are exceptional and the applicants make out a plausible case for the need to do so (order of the Court of Justice of 18 June 1986 in Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1986] ECR 1899, paragraph 11; judgment in Case T-35/92 Deere v Commission [1994] ECR II-957, paragraph 31; and order of the Court of First Instance of 10 December 1997 in Joined Cases T-134/94, T-136/94 to T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 NMH Stahlwerke and Others v Commission [1997] ECR II-2293, paragraph 35). That restriction on access to internal documents is justified by the need to ensure the proper functioning of the institution concerned when dealing with infringements of the Treaty competition rules (order in NMH Stahlwerke and Others v Commission, cited above, paragraph 36). Since the applicants have not shown how production of the expert accountant's report might be relevant to the principle of respect for the rights of the defence, the application must also be dismissed in so far as it relates to the lodging of that report.

41 For those reasons, the Court is not minded to grant the applicants' application for measures of inquiry.

The application for annulment of the Decision

42 The pleas in law put forward by the applicants may be arranged according to their subject-matter: first, the pleas relating to the Henss/Isoplus group; second, the pleas relating to HFB KG and HFB GmbH; third, the pleas relating to Isoplus stille Gesellschaft; and, fourth, the pleas which concern all the applicants.

I - The pleas in law relating to the Henss/Isoplus group

43 As regards the Henss/Isoplus group, the applicants put forward three pleas in law alleging, first, misapplication of Article 85(1) of the Treaty, second, infringement of essential procedural forms and, third, breach of the obligation to state reasons.

A - First plea in law, alleging misapplication of Article 85(1) of the Treaty in identifying the applicants as belonging to the Henss/Isoplus group

1. Arguments of the parties

44 The applicants claim that the Commission misapplied Article 85(1) of the Treaty, in so far as it regarded them as belonging to the Henss/Isoplus group, which, for having participated in an anti-competitive practice, has been ordered to pay a fine for which all the applicants are jointly and severally liable.

45 The applicants submit that an undertaking within the meaning of Article 85 of the Treaty and Article 86 of the EC Treaty (now Article 82 EC) can be formed only by natural or legal persons or by companies which must be treated as though they had their own legal personality (persons said to be quasi-legal). However, what the Commission presumes to be the Henss/Isoplus group does not have its own legal or quasi-legal personality.

46 In the absence of a parent company or a financing company with legal personality, the applicants can no longer be regarded as a group within the meaning of company law, or as a de facto group, as the Commission presumes in points 15 and 157 of the Decision, in the sense of legally autonomous undertakings whose economic conduct may be determined by another undertaking.

47 As regards the financing companies HFB GmbH and HFB KG, the applicants state, first, that the former acts exclusively as a sleeping partner to the latter. As regards the latter, although at the time of adoption of the Decision it held 100% of the share capital of Isoplus Rosenheim, it held only one third of the share capital of Isoplus Sondershausen. Furthermore, it has never been associated, even through a trustee, with Isoplus Hohenberg, contrary to what is stated in point 159 of the Decision, and it was not a secret associate, even through a trustee, of a silent partnership of which Isoplus Hohenberg was the operating owner.

48 In asserting that these undertakings regarded as belonging to the Henss/Isoplus group were all subject to the same uniform control, exercised by Mr Henss, the Commission disregarded the fact that, although Mr Henss had been the majority shareholder in Henss Rosenheim (now Isoplus Rosenheim) and, through trust companies, the majority shareholder in Isoplus Hohenberg, he had not been a partner in Henss Berlin or in Isoplus Sondershausen. Nor could Mr Henss, as a shareholder, be classified as an undertaking within the meaning of Article 85 of the Treaty.

49 As regards Isoplus Sondershausen, it is inconceivable that it was controlled by Isoplus Hohenberg, since the latter was a trustee. Until 21 October 1998, Isoplus Hohenberg held only one third of the shares in Isoplus Sondershausen on its own behalf, having held a further third as trustee. It was for reasons to do with business secrecy that Isoplus Hohenberg and Isoplus Sondershausen did not inform the Commission that Isoplus Hohenberg was a trustee. Furthermore, Isoplus Hohenberg and Isoplus Sondershausen supplied the same markets, in part, which is not generally the case within a group.

50 Nor can the nature of a group be inferred, as the Commission claims, from the reference to the Henss GmbH firm, Isoplus group in a memorandum of 21 April 1995 from Mr Henss (additional document No 17 to the statement of objections), since this was a statement on behalf of Henss Rosenheim in which the comma before the words Isoplus group merely meant that the undertaking Henss Rosenheim belonged to the spontaneous group in which the other parties to the cartel had placed the applicants owing to the commercial agency contracts between them. The existence of an agent or spokesman for such a spontaneous group does not suffice to make them into a group within the meaning of company law.

51 Furthermore, the Decision does not refer to any evidence on the basis of which the applicants, in the absence of at the very least a de facto group, are mutually liable for the anti-competitive practices of each of them.

52 The defendant observes that group designates the economic entity formed by the four undertakings participating in the cartel, namely Henss Rosenheim (now Isoplus Rosenheim), Henss Berlin, Isoplus Hohenberg and Isoplus Sondershausen, which were subject to the same uniform control, in particular as regards participation in the cartel. Mr Henss was Managing Director of Henss Berlin and Henss Rosenheim and controlled the latter company as well as Isoplus Hohenberg and Isoplus Sondershausen through direct or indirect shareholding. Furthermore, at the meetings of the directors' club, where the undertakings in the group received a single quota, Mr Henss defined and at the same time represented the interests of each of the undertakings in the group.

53 Since all the personal, tangible and intangible elements which, from a technical point of view, were connected with the undertakings belonging to the Henss/Isoplus group formed part of a larger entity whose economic objectives were determined in one and the same way, there was, for the purposes of competition law, a single undertaking in the form of a group. That conclusion cannot be called into question by the fact that that entity was not directed by a financing company. Nor is it relevant whether the natural or legal person directing the group also acted as an undertaking on its own behalf.

2. Findings of the Court

54 In prohibiting undertakings inter alia from entering into agreements or participating in concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition within the common market, Article 85(1) of the Treaty is aimed at economic units which consist of a unitary organisation of personal, tangible and intangible elements, which pursue a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision (Case T-11/89 Shell v Commission [1992] ECR II-757, paragraph 311, and Case T-352/94 Mo och Domsjö v Commission [1998] ECR II-1989, paragraph 87).

55 In the present case, at the time of the infringement, Henss Berlin and Henss Rosenheim (hereinafter also referred to as the Henss companies) and Isoplus Hohenberg and Isoplus Sondershausen (hereinafter also referred to as the Isoplus companies) were, in one form or another, controlled by Mr Henss.

56 It is common ground that Mr Henss always held 90% of the shares in Henss Rosenheim (the remainder being held by his wife) and was Managing Director of that company until it changed its name to Isoplus Rosenheim on 1 January 1997. At that time, Mr Henss and his wife transferred their shares to HFB KG, of which Mr Henss none the less remains the majority shareholder and which itself acts as the parent of Isoplus Rosenheim since it holds all the latter's capital.

57 As regards Henss Berlin, it is common ground that, when it was formed in August 1990, Mr Henss acquired 90% of its capital. When all the shares in Henss Berlin were transferred to HFB KG, on 1 January 1997, they were owned by Mr Papsdorf, the Managing Director of Isoplus Rosenheim, and his wife. Although the file does not reveal when Mr and Mrs Papsdorf acquired the shares from Mr Henss, it is common ground that Mr Henss was himself the Director of Isoplus Rosenheim from February 1994. Furthermore, it is clear that in December 1990, when Henss Berlin entered into a commercial agency contract with Isoplus Hohenberg, Mr Henss already represented Henss Berlin as sole Director.

58 As regards Isoplus Hohenberg, the applicants no longer dispute in the application that, at least from October 1991, the majority of its shares were owned by Mr Henss, through a trustee.

59 As regards Isoplus Sondershausen, it is clear that all its shares are nominally held by Isoplus Hohenberg. Although Isoplus Hohenberg only owns one third of the shares on its own behalf, it is common ground that a further third of the shares were held on behalf of Mr Papsdorf, then Managing Director of Isoplus Rosenheim, and his wife, their shares having been transferred under the partnership agreement of 15 January 1997 to HFB KG.

60 Next, Mr Henss represented the Henss companies and the Isoplus companies at the meetings of the directors' club. It follows from the notes taken by certain participants in the discussions on the sharing of the German market that market shares were envisaged for the entity called either Isoplus (see annexes 39, 40, 44, 45 and 49 to the statement of objections) or Isoplus/Henss (see annexes 48 and 53 to the statement of objections) or both Isoplus and Henze (see annex 37 to the statement of objections). Furthermore, it is expressly stated in the invitation to the meeting of 11 August 1992 sent by ABB as president of the trade association European District Heating Pipe Manufacturers Association (EuHP) (annex 38 to the statement of objections) that Mr Henss represented Isoplus at that meeting. Last, it is common ground that when quotas were allocated by the cartel at European level, the Henss companies and the Isoplus companies were allocated a single quota.

61 In those circumstances, the Commission was entitled to regard the activities within the cartel consisting of the distribution companies Henss Berlin and Henss Rosenheim (now Isoplus Rosenheim) and the production companies Isoplus Hohenberg and Isoplus Sondershausen as being the conduct of a single economic entity, under single control and pursuing a common long-term economic aim.

62 Furthermore, the existence of a single economic entity pursuing common interests is confirmed by internal documents of the companies in question. Thus, the minutes of a meeting of the supervisory board of the Isoplus companies of 3 February 1994 (additional document No 21 to the statement of objections) refers to an Isoplus group, whose turnover consists, in particular, of the turnover of Hohenberg and Sondershausen together with the turnover of Henss. Similarly, it is apparent from Mr Henss's note of 21 April 1995 that he agreed to participate in a plan to purchase Powerpipe on behalf of Firma Henss GmbH, Isoplus group (additional document No 17 to the statement of objections).

63 Nor can the Court accept the applicants' submission that the association of the Henss companies with the Isoplus companies may be explained by the fact that the former are the latter's trade representatives. Henss Rosenheim also acted throughout the relevant period as trade representative of the German subsidiary of ABB, i.e. ABB Isolrohr GmbH (ABB Isolrohr). Since a single quota was allocated at European level for the Henss companies and the Isoplus companies, and having regard to the role played by Mr Henss, both as representative of all those companies at the meetings of the directors and as director of or shareholder in those companies, it is clear that the Henss companies and the Isoplus companies acted together on the market as a single economic entity.

64 As concerns the fact that the interests of Henss Berlin were looked after by Mr Henss in the same way as those of Henss Rosenheim, the Court further observes that, as regards the Leipzig-Lippendorf project, it is apparent from the minutes of a meeting of the cartel on 10 January 1995 at which Mr Henss was present (annex 70 to the statement of objections) that it was decided to allocate the project to ABB Isolrohr, Pan-Isovit and Henz, without its being specified whether the reference was to Henss Berlin or to Henss Rosenheim. It is common ground that the tender relating to that project was subsequently submitted by Henss Berlin and not by Henss Rosenheim, although Mr Henss was not nominally a shareholder in the former, whereas he was in the latter. What is more, in a list of projects drawn up by ABB on 22 March 1995, the three undertakings designated as favourites for the Leipzig-Lippendorf project were ABB, Pan-Isovit and Isoplus (annex 71 to the statement of objections), providing further confirmation that the Henss companies and the Isoplus companies were regarded as belonging to the same economic entity.

65 The fact that Isoplus Hohenberg and Isoplus Sondershausen were active in the same market does not mean that they cannot have belonged to the same economic group. Furthermore, during the administrative procedure before the Commission, Isoplus Sondershausen still represented itself as a wholly-owned subsidiary of Isoplus Hohenberg.

66 Contrary to the applicant's contention, there is no need for the economic entity identified as a group to have legal personality. In competition law, the term undertaking must be understood as designating an economic unit for the purpose of the subject-matter of the agreement in question even if in law that economic unit consists of several persons, natural or legal (Case 170/83 Hydrotherm [1984] ECR 2999, paragraph 11). In the absence of a person at its head to which, as the person responsible for coordinating the group's activities, responsibility could have been imputed for the infringements committed by the various component companies of the group, the Commission was entitled to hold the component companies jointly and severally responsible for all the acts of the group, in order to ensure that the formal separation between those companies, resulting from their separate legal personality, could not prevent a finding that they had acted jointly on the market for the purposes of applying the rules on competition (see, on that point, Case 48/69 ICI v Commission [1972] ECR 619, paragraph 140).

67 Since the Commission regarded the Henss/Isoplus group as the undertaking that committed the infringement in respect of which the component companies of the group were held liable, it is irrelevant whether, in the present case, Mr Henss may be personally regarded as an undertaking within the meaning of Article 85(1) of the Treaty.

68 It follows from all the foregoing that the plea in law must be rejected.

B - Second plea in law, alleging infringement of essential procedural forms when referring to the Henss/Isoplus group in the operative part of the Decision

1. Arguments of the parties

69 The applicants claim that the Commission infringed essential procedural forms, laid down, in particular, in Regulation No 17, by stating that the Henss/Isoplus group was an addressee of the Decision. In the absence of legal or quasi-legal personality, the Henss/Isoplus group did not have locus standi in proceedings brought under Article 85 of the Treaty governed by Regulation No 17, in particular before the Court of First Instance.

70 In that regard, the applicants claim that the Commission states in Article 1 of the operative part of the Decision that the Henss/Isoplus group infringed Article 85(1) of the Treaty. In Article 2 of the Decision, the Commission goes on to state that the undertakings named in Article 1 are to bring the said infringement to an end forthwith, if they have not already done so. Furthermore, in Article 3 of the Decision it is stated that the fines are imposed on the undertakings named in Article 1 in respect of the infringements found therein and, in subparagraph (d): [the] Henss/Isoplus group, a fine of ECU 4 950 000, for which the following companies are jointly and severally liable: ...: Last, in Article 5(d) of the Decision it is stated that the Decision is addressed to [the] Henss/Isoplus group, represented by: .... From a procedural point of view, the Commission therefore regarded the Henss/Isoplus group as an addressee of the Decision, and not the undertakings identified in Article 5 of the Decision, which are identified only in connection with their joint obligation to pay the fine imposed on the Henss/Isoplus group.

71 The applicants observe that the present action cannot amount to recognition on their part that the Decision is to be taken in the desired sense on this point, since they have brought the present court proceedings. On the contrary, in doing so each intends to rely on its own rights and, in the interests of precaution, on the rights of what the Commission regards as the Henss/Isoplus group. Their applications are therefore submitted on their own behalf and also on behalf of the Henss/Isoplus group in which the Commission has placed them.

72 The defendant confirms that the addressees of the Decision are, for present purposes, the undertakings clearly identified in Article 5 of the operative part of the Decision. The applicants understood the Decision in that sense, moreover, since they brought their action on their own behalf and designated themselves as addressees of the Decision.

73 As regards the use of the names Henss/Isoplus or Henss/Isoplus group in the Decision, it is necessary to differentiate the identification of the undertaking, possibly taking the form of a group, which committed an infringement, from the identification of the natural or legal person, capable of enjoying rights and being subject to duties, which is technically responsible for that infringement. Although the term Henss/Isoplus group, represented by ... in Article 5(d) of the Decision is not particularly felicitous, it cannot be inferred that the Henss/Isoplus group as such is the person liable for the fine, since the provision in question refers to the very companies identified in Article 3(d) of the Decision as jointly and severally liable for the fine.

74 Last, the Decision was notified by letter addressed separately to each of the five applicants and not to the Henss/Isoplus group.

2. Findings of the Court

75 It was stated at paragraph 66 above that, in the absence of a person at the head of the Henss/Isoplus group to which, as the person responsible for coordinating the group's activities, responsibility could have been imputed for the infringements committed by the various component companies of the group, the Commission was entitled to hold the component companies jointly and severally responsible for all the acts of the group.

76 In that regard, Article 1 of the Decision identifies the Henss/Isoplus group among the undertakings which committed the infringement described in that provision. Similarly, Article 2 of the Decision refers to the undertakings named in Article 1 in order to identify the undertakings which are to bring the infringement to an end, if they have not already done so.

77 Next, in Articles 3 and 5 of the Decision, the Commission identified the legal persons that must answer for the infringement committed by the Henss/Isoplus group and which are therefore jointly and severally required to pay the fine imposed on the group.

78 Since the Henss/Isoplus group lacks legal personality, Articles 3 and 5 of the Decision cannot be understood otherwise than as designating the applicants as addressees of the Decision as components of the Henss/Isoplus group. The fact that the Henss/Isoplus group is identified through its components means that it cannot be unable to protect its interests in court proceedings. It is able to defend its interests, if necessary, via its components.

79 Nor can there be any doubt that the applicants were the addressees of the Decision as components of the Henss/Isoplus group, since the Decision was notified individually to each of the applicants and not to the Henss/Isoplus group, which alone was named as having committed the infringement in Article 1 of the Decision.

80 Having regard to their capacity as addressees of the Decision as components of the Henss/Isoplus group, the plea in law put forward by the applicants alleging infringement of Regulation No 17 must be rejected.

C - Third plea in law, alleging infringement of the obligation to state reasons

1. Arguments of the parties

81 According to the applicants, the Commission infringed the obligation to state reasons laid down in Article 190 of the EC Treaty (now Article 253 EC), since the Decision gives no reasons why the Henss/Isoplus group should be a party in proceedings pursuant to Regulation No 17 and thus the addressee of a decision under that regulation. The Commission's assertion in point 160 of the Decision that the statement of objections was addressed to the Henss/Isoplus group and that, in the absence of a single holding company, the four named operating companies were the representatives of the group for the purposes of service and of enforcement, is insufficient in the light of its statement in point 15 of the Decision that the Henss/Isoplus group was a de facto group without its own legal personality and without capacity to bring or defend court proceedings.

82 The defendant states that it was shown in points 157 to 160 of the Decision that the undertakings brought together under the title Henss/Isoplus group acted as a de facto group, so that the applicants must be held jointly and severally liable to pay the fine. As the Henss/Isoplus group was not a party to the proceedings, no justification in that regard was necessary.

2. Findings of the Court

83 The applicants' argument relies on the Decision being interpreted as meaning that the Henss/Isoplus group was regarded as the person involved in the administrative procedure. That interpretation has been rejected as incorrect, since in the Decision, the companies jointly and severally liable for the fine imposed in respect of the infringement committed by the Henss/Isoplus group and thus addressees of the Decision as components of the group were identified in Articles 3 and 5 of the operative part (see paragraphs 75 to 80 above).

84 As regards the infringement committed by the Henss/Isoplus group and the fact that the applicants were regarded as responsible for implementing the Decision, as components of the Henss/Isoplus group, reference should be made to points 157 to 160 of the Decision.

85 First, the Commission stated in point 157 of the Decision that [t]he Henss/Isoplus undertakings acted as a de facto group. In order to support that assertion, it stated that Mr Henss was the majority shareholder of Isoplus Hohenberg, which itself held all the shares in Isoplus Sondershausen, and that he was the majority shareholder and Managing Director of Henss Rosenheim and Managing Director (but not a shareholder) of Henss Berlin, undertakings which acted as Isoplus's commercial agents in Germany. In the same point of the Decision, the Commission observes that [i]t is apparent from the fact that it was [Mr] Henss who always attended the directors' club meetings that he was the person who exercised management and control over Isoplus and that the Henss and Isoplus undertakings together formed a de facto group. Still according to the Commission, [i]t was common knowledge in the industry that Henss was the power behind Isoplus.

86 In point 158 of the Decision, the Commission states that since at the time when the statement of objections was sent there was to its knowledge no holding company to which the statement of objections could be addressed, it addressed it to the Henss/Isoplus group, represented by all four of its principal undertakings in the Community, namely Isoplus Hohenberg, Isoplus Sondershausen, Henss Rosenheim, and Henss Berlin. According to the Decision, it was made clear in the statement of objections that the proceedings were being addressed to the Henss/Isoplus Group and that in the absence of a ... holding company the four named operating companies were the representatives of the group for the purposes of service and of enforcement (fourth paragraph of point 160).

87 Last, the Commission states that, after learning from a partnership agreement of 15 January 1997 that holding companies, HFB GmbH and HFB KG, had been formed, to which the shares held in Isoplus Rosenheim and Isoplus Hohenberg had been transferred and that, in addition, a limited partnership, Isoplus stille Gesellschaft, had been set up, it addressed the present Decision not only to Isoplus Hohenberg, Isoplus Sondershausen and Isoplus Rosenheim, but also to HFB GmbH and HFB KG and to Isoplus stille Gesellschaft (point 160 of the Decision).

88 It follows from the foregoing that the Commission stated its reasons for regarding the Henss and Isoplus undertakings as constituting a de facto group. It also stated that, in the absence of a holding company representing the group, the group must be identified via its component companies for the purposes of service and of payment of the fine.

89 The present plea in law must therefore be rejected.

II - The pleas in law relating to HFB GmbH and to HFB KG

90 As regards HFB GmbH and HFB KG, the applicants put forward three pleas in law, alleging, first, misapplication of Article 85(1) of the Treaty, second, infringement of the rights of defence and, third, infringement of the obligation to state reasons.

A - Arguments of the parties

91 The applicants claim that the Commission was wrong to order HFB GmbH and HFB KG jointly and severally with the other applicants to pay the fine imposed on the Henss/Isoplus group.

92 The applicants observe that, according to the Decision, the infringement came to an end no later than March or April 1996. Since HFB GmbH and HFB KG were only formed on 15 January 1997 and have existed in law only since they were entered on the commercial register, namely on 10 and 27 February 1997 respectively, they were not able to take part in the infringement. Nor, in the absence of legal existence before 1997, can they be held responsible for any anti-competitive conduct on the part of other undertakings in the Henss/Isoplus group. According to the presumption of innocence, an undertaking can be fined in a proceeding under Article 85 of the Treaty, governed by Regulation No 17, only where it has participated culpably or at least negligently in an infringement.

93 It is only where an undertaking has been changed or merged into another undertaking that the latter undertaking, as universal successor in title to the former undertaking, can be held responsible for the infringement committed by the former undertaking, provided that the economic identity of the undertaking has not changed. In that regard, the applicants observe that HFB KG acquired its shares in Isoplus Rosenheim and Isoplus Sondershausen from natural persons, namely Mr and Mrs Henss, in the case of Isoplus Rosenheim, and Mr and Mrs Papsdorf in the case of Isoplus Sondershausen. An undertaking cannot be held responsible, as a successor in title to natural persons who held shares in the company which committed the infringement and who, as mere shareholders, did not themselves constitute undertakings within the meaning of Articles 85 and 86 of the Treaty.

94 Contrary to the Commission's approach, it is impossible to invoke the existence of numerous manifestations of the Henss/Isoplus group directed by Mr Henss. The reason why HFB GmbH and thus HFB KG were formed was to facilitate a sale of various shareholdings in district heating undertakings as a whole. A number of increases in share capital and various measures to introduce capital were implemented for exclusively accounting reasons. Those changes in capital and those measures were implemented after the infringement came to an end and even, in certain cases, after the Decision had been adopted.

95 The defendant observes that HFB GmbH and HFB KG can be held jointly liable for infringements committed by the Henss/Isoplus group independently of the fact that those undertakings had not themselves infringed the competition rules and had not assumed all the rights and obligations of undertakings that committed the infringements.

96 A legal person may be made liable for infringements committed by a company of which it has taken control even if the infringements were committed before it took control (Case T-308/94 Cascades v Commission [1998] ECR II-925). As the Commission could make HFB GmbH and HFB KG jointly responsible for the infringements in question, it could also include them among the undertakings required to pay the fine (Joined Cases T-339/94 to T-342/94 Metsä-Serla and Others v Commission [1998] ECR II-1727).

97 In imputing responsibility for the infringements to HFB GmbH and to HFB KG, the Commission did not in any way undermine the presumption of innocence. In the present case, the restructuring whereby HFB GmbH and HFB KG acquired certain of Mr Henss's shareholdings and thus direct control over Isoplus Rosenheim constitutes changes within a single undertaking and controlled by the unitary management of that undertaking.

98 In that regard, it is immaterial that the shareholders as such were not undertakings. According to the Commission, undertakings may be constituted of various components, some of which have an operational role and others a management role. In the present case, the latter role was and continues to be played by Mr Henss, who had none the less delegated part of that role to HFB KG, which he himself controls.

99 In that context, the Commission states that it was able to hold Mr Henss personally responsible for the infringements committed by Isoplus Rosenheim, since during the period of the infringements that company's policy could not be defined independently of Mr Henss, especially since other companies belonging to the Henss/Isoplus group also participated in the infringement. Since Mr Henss controls HFB GmbH by virtue of his shareholding in its capital and is still Managing Director of that company, both it and HFB KG must accept that the fact that Mr Henss was aware of the infringements committed by the transferred company is imputed to them. Furthermore, the value of the shares acquired could have been altered by the infringement.

100 Last, it is necessary to take account, first, of the Commission's legitimate interest in being able, in any enforcement proceedings, to make use of the assets of the group, independently of any restructuring such as that in the present case, and, second, of the difficulties which the Commission may encounter in the event of enforcement against individuals. A restructuring such as that brought about by the formation of HFB GmbH and of HFB KG, where Mr Henss was both seller and purchaser, must not have the effect that the Commission is no longer able to take action against the new holder of the shares in question.

B - Findings of the Court

101 The Commission brought the Henss companies and the Isoplus companies together within a de facto group which was regarded as the undertaking which had participated in the infringement. Owing to the absence of a parent company representing the Henss/Isoplus group or a company responsible for coordinating the actions of the group, the Commission imputed responsibility for the infringement to the companies of which the group was composed on the date of adoption of the Decision, including HFB GmbH and HFB KG.

102 Since HFB GmbH and HFB KG did not yet exist at the time when the infringement was committed, responsibility for the infringement cannot therefore be imputed to them on the basis of any stimulating and coordinating role, in relation to the impugned activities, vis-à-vis the other companies belonging to the Henss/Isoplus group (see, in that regard, Shell v Commission, cited above, paragraph 312).

103 Similarly, responsibility for the infringement cannot be imputed to HFB GmbH and to HFB KG solely because they belonged to the Henss/Isoplus group at the time when the Decision was adopted. It falls, in principle, to the natural or legal person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, when the Decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking (Case C-279/98 P Cascades v Commission [2000] ECR I-9693, paragraph 78, and Case C-297/98 P SCA Holding v Commission [2000] ECR I-10101, paragraph 27). In the present case, on the assumption that HFB GmbH and HFB KG operate as holding companies responsible in whole or in part for the Henss/Isoplus group, and that that situation came about after the infringement had taken place, they cannot be imputed with the unlawful conduct of the Henss/Isoplus group prior to the acquisition, in whole or in part, of that group (Cascades v Commission, cited above, paragraph 77).

104 The situation would be different only where the legal person or persons responsible for running the undertaking have ceased to exist in law after the infringement has been committed (Case C-49/92 P Commission v Anic [1999] ECR I-4125, paragraph 145). It is common ground that the companies concerned at the time when the infringement was committed still exist.

105 It is clear from the case-file that the Commission holds HFB GmbH and HFB KG jointly and severally liable for the infringement committed by the Henss/Isoplus group owing, inter alia, to the fact that they obtained from Mr Henss the control which he exercised over the undertakings in the group, in particular direct control over Isoplus Rosenheim. In that regard, it is sufficient to observe that, in so far as the Commission, in the Decision, did not hold Mr Henss personally liable for the infringement committed by the Henss/Isoplus group, HFB GmbH and HFB KG cannot be imputed, on the basis of economic succession, with liability which was intentionally not established previously.

106 It is true that in certain circumstances an infringement of the rules on competition may be imputed to the economic successor of the legal person responsible, even where the latter has not ceased to exist on the date of adoption of the decision finding the infringement, so that the effectiveness of those rules will not be compromised owing to the changes to, inter alia, the legal form of the undertakings concerned (see Case T-134/94 NMH Stahlwerke v Commission [1999] ECR II-239, paragraph 127). However, NMH Stahlwerke v Commission may be distinguished, since in the present case the natural and legal persons involved in the infringement continued their commercial activities in full, while HFB GmbH and HFB KG did not yet exist at the time of the infringement.

107 Furthermore, it is impossible, on the basis of the information provided to the Court during the written procedure and subsequently at the hearing, to conclude that there existed strategies adopted for the specific purpose of avoiding penalties for infringement of the competition rules (see Commission v Anic, cited above, paragraph 146).

108 Consequently, it must be held that the Commission erred in law in holding HFB KG and HFB GmbH jointly and severally liable for the fine imposed in respect of the participation of the Henss/Isoplus group in the infringement. Accordingly, there is no need to adjudicate on the second and third pleas in law relating to HFB GmbH and HFB KG, alleging infringement of the rights of defence and of the obligation to state reasons.

109 Articles 3(d) and 5(d) of the Decision must therefore be annulled in so far as they concern HFB KG and HFB GmbH.

III - Pleas in law relating to Isoplus stille Gesellschaft

A - Arguments of the parties

110 The applicants, and Isoplus Hohenberg in particular, criticise the Commission for having also addressed the Decision to Isoplus stille Gesellschaft, in its capacity as an undertaking in the Henss/Isoplus group. Under Austrian law, Isoplus stille Gesellschaft, as a limited partnership, was neither a legal person nor a commercial company, but merely an internal company which, as such, cannot have rights or obligations, which only the owner of the business can have. Furthermore, in September 1997, Isoplus stille Gesellschaft was dissolved without being liquidated, its assets being transferred to the founding company, Isoplus Hohenberg, in the form of an increase in capital.

111 In that context, Isoplus Hohenberg puts forward, first of all, a plea in law alleging infringement of Article 85 of the Treaty, in so far as the Decision is addressed to a limited partnership, which, not having legal or quasi-legal personality, is not an undertaking within the meaning of Articles 85 and 86 of the Treaty and, accordingly, cannot be the addressee of a Commission decision in a proceeding under Article 85 of the Treaty.

112 Isoplus Hohenberg also alleges breach of essential procedural requirements in so far as the Commission, in the Decision, imposed a fine on an undertaking which, as a limited partnership, did not have capacity to defend its interest in court proceedings for the purposes of Austrian law and could not therefore bring an action before the Court of First Instance. Nor could such a decision be addressed to an undertaking which, independently of its legal classification, did not exist when the Decision was adopted because it had been dissolved.

113 Isoplus Hohenberg further observes that no statement of objections was sent to Isoplus stille Gesellschaft. It states in that regard that at the hearing on 24 and 25 November 1997 it was not possible to consider whether, under Austrian law, a limited partnership has legal or quasi-legal personality and thus has capacity to bring legal proceedings, or the fact that the limited partnership had been dissolved, since, in spite of an application to that effect by its counsel, the Hearing Officer did not hold a separate hearing on those points. In its reply of 30 March 1998 to the request for information of 24 February 1998 (hereinafter the letter of 30 March 1998), the applicant therefore did not comment on the problem of that limited partnership. It was only by letter of 22 October 1998 to the Commission that the problem was raised.

114 Last, the Commission infringed its obligation to state reasons, since the Decision does not explain how a limited partnership governed by Austrian law may be the addressee of a Commission decision in a proceeding under Article 85 of the Treaty.

115 The defendant observes that Isoplus stille Gesellschaft, as Isoplus Hohenberg itself states, had already ceased to exist when the Decision was adopted. The Decision is therefore inoperative vis-à-vis that company. None the less, no plea in law directed against the Decision can be inferred from that fact. Furthermore, it would be possible to reach the same finding if the limited partnership had still existed when the Decision was adopted. As Isoplus Hohenberg itself recognises, the company had no legal personality, so that the Decision could not have any legal effect with regard to it or, consequently, adversely affect it.

B - Findings of the Court

116 Having regard to the fact that Isoplus stille Gesellschaft had been dissolved when the Decision was adopted, the Decision could not produce legal effects vis-à-vis that company. Consequently, the Decision produced no legal effects in so far as it was addressed to Isoplus stille Gesellschaft.

117 Nor, since Isoplus Hohenberg, which was still the person vested with all the rights and obligations capable of existing for Isoplus stille Gesellschaft, is itself an addressee of the Decision, can the fact that Isoplus stille Gesellschaft was included among the addressees of the Decision have any legal effect vis-à-vis Isoplus Hohenberg other than that resulting from the fact that the Decision was addressed to Isoplus Hohenberg and that the latter was held jointly and severally liable for the fine imposed on the Henss/Isoplus group.

118 As the Decision is inoperative in so far as it is addressed to and refers to Isoplus stille Gesellschaft, the action is devoid of purpose in so far as it concerns the latter and there is therefore no need to adjudicate in that regard.

IV - The pleas in law put forward in relation to all the applicants

119 The applicants together put forward five pleas in law. The first plea in law alleges errors of fact and of law in applying Article 85(1) of the Treaty. The second plea alleges infringement of the rights of defence. The third plea alleges that the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3, hereinafter the new guidelines or the guidelines) are unlawful. The fourth plea alleges infringement of the rules relating to fines in competition matters and of general principles and errors of assessment in determining the amount of the fine. The fifth plea alleges breach of the obligation to state reasons.

A - First plea in law, alleging errors of fact and of law in applying Article 85(1) of the Treaty

1. Participation in the infringement prior to October 1994

...

(b ) Legal assessment

182 As regards the Commission's legal assessment of the facts established before October 1994, the applicants essentially put forward six objections. First, the applicants criticise the classification of all agreements and concerted practices as an infringement. Second, the applicants claim that the conduct found should not have been classified as an agreement. Third, the applicants dispute the concept of concerted practices employed by the Commission. Fourth, the applicants claim that the Commission incorrectly assessed the legal consequences of participation in a meeting having an anti-competitive purpose. Fifth, the applicants maintain that the Commission erred in relation to the burden of proof as regards participation in an overall cartel. Sixth, the applicants accuse the Commission of having failed to assess the individual responsibility of the companies regarded as belonging to the Henss/Isoplus group.

(i) The classification of all agreements and concerted practices as an infringement

Arguments of the parties

183 The applicants dispute the Commission's assertion in points 131 and 132 of the Decision that in a complex cartel of long duration, where the various concerted practices followed and agreements concluded form part of a course of conduct adopted by the undertakings in pursuit of a common objective of preventing or distorting competition, it is entitled to find that they constitute a single continuous infringement. The Commission is incorrect to maintain that it is not necessary, in such a case, for it to categorise the infringement as exclusively an agreement or a concerted practice.

184 The applicants observe that it is not necessary, either in the case of an agreement within the meaning of Article 85(1) of the Treaty or in that of a gentlemen's agreement intended to restrict competition, to demonstrate the existence of an actual restriction of competition. In the case of concerted practices, on the other hand, in the absence of the deliberate coordination of conduct with the object of restricting competition, it is for the Commission to prove that the concerted practices actually had the effect of restricting competition. Having regard to the distinction between the concepts of agreement and concerted practices, it is not possible for the Commission to find only a single infringement of Article 85(1) of the Treaty where the infringements of that provision assume different forms. Observance of the principle of the presumption of innocence requires that all the material elements of an infringement of Article 85(1) of the Treaty be specified in a decision adopted pursuant to Regulation No 17.

185 The defendant observes that in the present case the agreements and concerted practices implemented during the relevant period formed part of a system of regular meetings designed to regulate the market by setting prices and quotas. Since that conduct manifested itself partly in agreements and partly in concerted practices, the Commission was justified in finding, in Article 1 of the Decision, that there was an agreement and a concerted practice. Thus it neither misconstrued the concepts of agreement and of concerted practice nor infringed general principles of law.

Findings of the Court

186 It is settled case-law that, in the context of a complex infringement which involves many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, for each undertaking and for any given moment, as an agreement or a concerted practice, as in any event both those forms of infringement are covered by Article 85 of the Treaty. The Commission is therefore entitled to classify such a single infringement as an agreement and a concerted practice or as an agreement and/or a concerted practice, since the infringement includes elements which are to be classified as an agreement and elements which are to be classified as a concerted practice (Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 264). It would be artificial to split up continuous conduct, characterised by a single purpose, by treating it as consisting of a number of separate infringements (Hercules Chemicals v Commission, cited above, paragraph 263).

187 In such a situation, the dual characterisation must be understood not as requiring, simultaneously and cumulatively, proof that each of those factual elements presents the constituent elements both of an agreement and of a concerted practice, but rather as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 85(1) of the Treaty, which lays down no specific category for a complex infringement of this type (Hercules Chemicals v Commission, cited above, paragraph 263).

188 Although Article 85 of the Treaty distinguishes between concerted practices, agreements between undertakings and decisions by associations of undertakings, the object is to bring within the prohibitions in that article different forms of coordination and collusion between undertakings (ICI v Commission, cited above, paragraph 64). It does not, however, follow that patterns of conduct having the same anti-competitive object, each of which, taken in isolation, would fall within the meaning of agreement, concerted practice or decision by an association of undertakings, cannot constitute different manifestations of a single infringement of Article 85(1) of the Treaty. A pattern of conduct by several undertakings may therefore be the expression of a single and complex infringement, corresponding partly to an agreement and partly to a concerted practice (Commission v Anic, cited above, paragraphs 112 to 114).

189 Contrary to what the applicants claim, the Commission was correct to state that, in such a case, there is no need to categorise the infringement as exclusively an agreement or a concerted practice.

190 A comparison between the concepts of agreement and concerted practice within the meaning of Article 85(1) of the Treaty shows that, from the subjective point of view, they are intended to catch forms of collusion having the same nature and are only distinguishable from each other by their intensity and the forms in which they manifest themselves. It follows that, whilst the concepts of an agreement and of a concerted practice have partially different elements, they are not mutually incompatible. The Commission is therefore not required to categorise either as an agreement or as a concerted practice each form of conduct found but may characterise some of those forms of conduct as principally agreements and others as concerted practices (Commission v Anic, cited above, paragraphs 131 and 132).

191 Such an interpretation does not have an unacceptable effect on the question of proof. On the one hand, the Commission must still establish that each form of conduct found falls under the prohibition laid down in Article 85(1) of the Treaty as an agreement, a concerted practice or a decision by an association of undertakings. On the other hand, the undertakings charged with having participated in the infringement have the opportunity of disputing, for each form of conduct, the characterisation or the characterisations applied by the Commission by contending that the Commission has not adduced proof of the constituent elements of the various forms of infringement alleged (Commission v Anic, cited above, paragraphs 134 to 136).

192 It follows that the Commission did not err in law by characterising the infringement in question, in Article 1 of the operative part of the Decision, as a complex of agreements and concerted practices, without placing it in just one of those two categories.

(ii) The characterisation as an agreement of the forms of conduct found

Arguments of the parties

193 The applicants claim, as regards the concept of agreement within the meaning of Article 85(1) of the Treaty, that it follows from the provision in Article 85(2) of the Treaty that such an agreement is automatically void that any such agreement must be legally binding. Accordingly, what is known as a gentlemen's agreement is not an agreement. Provided that the undertakings are not agreed among themselves, their conduct can be characterised only as an attempted agreement, which is not punishable by a fine in competition law.

194 According to the applicants, there was no agreement during the relevant period, since it was only in the autumn of 1994 that an agreement was reached on prices and quotas.

195 As regards the system of quotas which, according to the Commission, was adopted in August or September 1993, the Commission even stated, in point 51 of the Decision, concerning the agreed targets for the German market for 1994, that a general consensus seem[ed] to have emerged, which indicates that such a consensus did not exist. According to the same point of the Decision, Tarco was said to have had reservations about the quotas. In point 52 of the Decision, the Commission further states that such an agreement never actually saw the light of day. Irrespective of the fact that the applicants never entered into such an agreement or that they never collaborated in one, the facts put forward by the Commission could at the most be characterised as an attempted agreement.

196 The Commission is incorrect to state, in point 137 of the Decision, that the inchoate, loose and often fragmentary arrangements outside Denmark before 1994 in any event amounted to infringements of Article 85(1) of the Treaty. Inchoate agreements are agreements that do not yet exist: consensus ad idem has not been reached between the undertakings concerned. Consequently, such fragmentary, inchoate arrangements are merely attempted agreements, which are not punishable by fines.

197 In any event, not only did Henss Rosenheim and thus the Henss/Isoplus group not abide by the outcome of the meetings referred to in the Decision, they even openly withdrew their support for those results. The fact that the undertaking's legal representative took action and that Henss Rosenheim lodged a complaint against ABB Isolrohr before an arbitration tribunal can be interpreted only as meaning that it openly distanced itself from what was agreed at the meetings within the meaning of the case-law.

198 The defendant observes that, according to the case-law, it is sufficient, in order to accept the existence of an agreement, that the undertakings concerned expressed their joint intention to adopt specific conduct on the market. It is in no way necessary for the parties to have established a legal link. In that context, the price increase decided upon in October or December 1991, the system of quotas adopted in August or September 1993 and the price list adopted in May and August 1994 are by nature agreements.

Findings of the Court

199 It is settled case-law 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 (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 112, Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, paragraph 86, and Case T-1/89 Rhône-Poulenc v Commission [1991] ECR II-867, paragraph 120).

200 That is the case where there is a gentlemen's agreement between a number of undertakings representing the faithful expression of such a joint intention concerning a restriction of competition (ACF Chemiefarma v Commission, cited above, paragraph 112, and Case T-141/89 Tréfileurope v Commission [1995] ECR II-791, paragraph 96). In those circumstances, the question whether the undertakings in question considered themselves bound - in law, in fact or morally - to adopt the agreed conduct is therefore irrelevant (Case T-347/94 Mayr-Melnhof v Commission [1998] ECR II-1751, paragraph 65).

201 Contrary to what the applicants allege, the opposite conclusion cannot be inferred from the provision in Article 85(2) of the Treaty that any agreement referred to in Article 85(1) is automatically void, which is intended for cases where a legal obligation is actually in issue. The fact that only binding agreements can, by their nature, be rendered void does not mean that non-binding agreements must escape the prohibition laid down in Article 85(1) of the Treaty.

202 In the present case, the Commission considered in point 137 of the Decision that, as regards the arrangements outside the Danish market before 1994, express agreement was reached at the latest, on the price increase for Germany, on 1 January 1992, and, for pricing and project sharing in Italy and the market-quota scheme, in August 1993. As regards the applicants' participation in the cartel before October 1994, it is common ground that the Commission found that there was an agreement, first, as to the price increase for the German market for 1992, decided in October and December 1991, second, as to the quota scheme adopted in August or September 1993 and, third, as to the price list adopted in May and August 1994.

203 In that regard, reference should be made to paragraphs 137 to 181 above, where it was held that the Commission, on the basis of all the evidence it had gathered, was entitled to consider that the Henss/Isoplus group was a party to the agreement reached, at the latest, on 19 December 1991 on the increase of gross prices in Germany, an agreement to share the German market reached, at the latest, in September 1993, and an agreement on a price list, adopted at the meetings of May and August 1994.

204 On that question, Henss Rosenheim's objection to the agency price increases imposed by ABB Isolrohr cannot be regarded as distancing itself from the other participants in the cartel, since its objection related only to the agency prices used in the commercial representation of Henss Rosenheim and not to the selling prices fixed by the undertakings concerned for the German market.

205 As regards the agreement on sharing the German market, reached in August 1993, it cannot be maintained that the Commission found the absence of joint intention in stating, in point 51 of the Decision, that a consensus seem[ed] to have emerged on the quota scheme. At that place, the verb seem cannot be understood other than as expressing the Commission's conviction that it could be inferred from the circumstances of the case that a general consensus had been established on a quota scheme at that time. Similarly, the fact that Tarco had expressed reservations about its market share could not prevent the Commission from finding that an agreement in principle had emerged. It is clear from ABB's reply that, during the negotiations, in April and May 1993, to reach an agreement on prices, Tarco refused to participate in any agreement on prices without a parallel agreement on market-share quotas, owing to the fact that Tarco did not obtain orders when it did not engage in aggressive price competition. As stated in paragraph 153 above, Tarco's position was expressed in a request for a higher quota than the 17% envisaged on the basis of the audit, which led, in a subsequent proposal, to its being allocated a higher market share. It cannot be inferred from the fact that Tarco adopted such a position that it was opposed to the principle of sharing the German market.

206 Contrary to what the applicants claim, the facts relied on by the Commission cannot be characterised as merely an attempted agreement. It is apparent from the series of meetings at which market-sharing was discussed that, at least at a certain time, the undertakings in question expressed their joint intention to conduct themselves on the market in a specific manner. As observed in paragraphs 151 to 157 above, it must be held that, even if there was not an agreement on all the matters forming the subject-matter of the negotiations, a joint intention to restrict competition on the German market by means of fixed market shares for each operator governed the negotiations during a certain period in 1993.

207 In that context, the Commission's assertion in point 137 of the Decision that it may well be true that [the arrangements] were inchoate, loose and often fragmentary cannot be taken to mean that, in respect of the facts characterised as an agreement by the Commission, there was not yet a joint intention on the part of the undertakings concerned to conduct themselves on the market in a specific way. The Commission's assertion, although it states that the arrangements were not always concluded for all the matters forming the subject-matter of the negotiations or for all the foresee