CELEX: 61999TJ0066
Language: en
Date: 2003-12-11
Title: Judgment of the Court of First Instance (Fifth Chamber) of 11 December 2003. # Minoan Lines SA v Commission of the European Communities. # Competition - Regulation (EEC) No 4056/86 - Investigations carried out at company premises other than those of the company to which the investigation decision is addressed - Article 85(1) of the EC Treaty (now Article 81(1) EC) - State regulation on maritime transport and the practice of State authorities - Applicability of Article 85 of the Treaty - Whether infringing conduct may be imputed - Fines - Application of the guidelines on calculating fines. # Case T-66/99.

Case T-66/99 Minoan Lines SAvCommission of the European Communities
            «(Competition – Regulation (EEC) No 4056/86 – Investigations carried out at company premises other than those of the company to which the investigation decision is addressed – Article 85(1) of the EC Treaty (now Article 81(1) EC) – State regulation on maritime transport and the practice of State authorities – Applicability of Article 85 of the Treaty – Whether infringing conduct may be imputed – Fines – Application of the guidelines on calculating fines)»
            
               
                  Judgment of the Court of First Instance (Fifth Chamber), 11 December 2003 
                     
                
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  1..
                  Community law – Principles – Rights of the defence – Compliance during administrative procedure  (Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18) 
         
                  2..
                  Competition – Administrative procedure – Powers of the Commission in investigations – Limits – Protection against arbitrary or disproportionate intervention by the public authority  (Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18) 
         
                  3..
                  Competition – Administrative procedure – Powers of the Commission in investigations – Scope – Access to the premises of undertakings – Limits – Indication of the subject-matter and purpose of the investigation – Right to bring an action before the Community judicature  (Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18) 
         
                  4..
                  Competition – Administrative procedure – Powers of the Commission in investigations – Access to premises of undertakings – Undertaking not referred to in the investigation decision – Conditions for access  (Council Regulation No 4056/86, Art. 18) 
         
                  5..
                  Competition – Administrative procedure – Powers of the Commission in investigations – Voluntary cooperation of an undertaking – Consequences for the possibility of arguing undue interference by a public authority  (Council Regulation No 4056/86, Art. 18) 
         
                  6..
                  Competition – Agreements, decisions and concerted practices – Undertaking – Definition – Economic unit – Attribution of the infringements  (EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
         
                  7..
                  Competition – Agreements, decisions and concerted practices – Dominant position – Undertaking – Definition – Economic unit – Undertakings having a vertical relationship – Criteria  (EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC)) 
         
                  8..
                  Competition – Community rules – Scope ratione materiae – Conduct imposed by State measures – Excluded – Conditions  (EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC)) 
         
                  9..
                  Competition – Agreements, decisions and concerted practices – Definition – Gentlemen's agreement concerning conduct in the market  (EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
         
                  10..
                  Competition – Agreements, decisions and concerted practices – Participation in meetings held by undertakings for an anti-competitive purpose – Conduct constituting an infringement in itself   (EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
         
                  11..
                  Competition – Fines – Amount – Determination – Criteria defined in the Commission Guidelines – Applicability to infringements of the competition rules in the maritime transport sector  (ECSC Treaty, Art. 65(5); Council Regulations No 17, Art, 15(2) and 4056/86, Art. 19(2)) 
         
                  12..
                  Competition – Fines – Amount – Reduction in fine in exchange for cooperation – Actions for annulment – Fresh review of the size of the reduction – Excluded  (Council Regulation No 17, Art. 15) 
         
         1.
          In all procedures involving application of the competition rules laid down in the Treaty, the rights of the defence must be
         observed by the Commission during administrative procedures which may lead to the imposition of penalties and also during
         preliminary inquiry procedures because it is necessary to prevent those rights from being irremediably impaired during preliminary
         inquiry procedures including, in particular, investigations which may be decisive in providing evidence of the unlawful nature
         of conduct engaged in by undertakings for which they may be liable. see paras 47-48
         
         2.
          As regards the powers accorded the Commission by Article 14 of Regulation No 17 and the extent to which the rights of the
         defence may restrict them, the need for protection against arbitrary or disproportionate intervention by public authorities
         in the sphere of the private activities of any person, whether natural or legal, constitutes a general principle of Community
         law. In all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities
         of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law and, consequently,
         those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention. see para. 49
         
         3.
          It is apparent both from the purpose of Regulation No 17 and from the list of powers conferred on the Commission's officials
         by Article 14 thereof that the scope of investigations may be very wide. The exercise of those broad powers is however subject
         to conditions capable of ensuring respect for the rights of the undertakings concerned. In that regard, the obligation for the Commission to state the subject-matter and purpose of an investigation constitutes
         a fundamental requirement, designed not merely to show that the proposed entry onto the premises of the undertakings concerned
         is justified but also to enable the undertakings to assess the scope of their duty to cooperate whilst safeguarding their
         rights of defence. The Commission is likewise obliged to state in the decision ordering an investigation, as precisely as possible, what it is
         looking for and the matters to which the investigation must relate. That requirement is intended to protect the rights of
         defence of the undertakings concerned, which would be seriously compromised if the Commission could rely on evidence against
         undertakings which was obtained during an investigation but was not related to the subject-matter or purpose thereof. Finally, the undertaking to which the decision is addressed may bring an action for annulment of that decision before the
         Community judicature; if that action is granted, the Commission will be prevented from making use of any documents or evidence
         obtained in the course of the investigation in question. see paras 51, 54-56
         
         4.
          The Commission must, in all its investigatory work, ensure compliance with the principle that the actions of the Community
         institutions must have a legal basis and with the principle of protection against arbitrary intervention by the public authorities
         in the sphere of private activities of any person, whether natural or legal. It would be excessive and contrary to the provisions
         of Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport,
         and to fundamental principles of law to allow the Commission a general right of access, based on an investigation decision
         addressed to one legal entity, to inspect premises belonging to another legal entity simply on the pretext that the latter
         is closely connected with the addressee of the investigation decision or that the Commission believes it will find there documents
         belonging to the addressee of the decision. However, the Commission does not exceed its investigatory powers where it acts diligently and amply fulfils its duty to make
         as sure as possible, before the investigation begins, that the premises which it proposes to inspect indeed belong to the
         legal entity which it wishes to investigate. The Commission continues to act lawfully where, having realised that the premises
         being investigated are not those of the undertaking referred to in the decision, it takes the view that those premises are
         none the less used by the undertaking initially referred to in the decision for the conduct of its business, given that the
         company which is based there, whilst being legally distinct from the company to which the decision is addressed, is its representative
         and sole manager of the affairs to which the investigation related. The right to enter any premises, land or means of transport
         of undertakings is of particular importance inasmuch as it is intended to permit the Commission to obtain evidence of infringements
         of the competition rules in the places in which such evidence is normally to be found, that is to say, on the business premises
         of undertakings. It follows that the Commission is entitled to take into account in its reasoning the fact that its chances
         of finding proof of the supposed infringement would be higher if it were to investigate the premises from which the target
         company in fact conducts its business as a matter of practice. see paras 76-77, 83-84, 88
         
         5.
          There can be no question of undue interference by the public authority in the sphere of activity of an undertaking, where
         an investigation is carried out with the cooperation of the undertaking concerned and where there is no evidence that the
         Commission went beyond the cooperation offered by the employees of the undertaking being investigated. see para. 94
         
         6.
          The term  
         undertaking within the meaning of Article 85(1) of the Treaty (now Article 81(1) EC) 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. Such an economic unit is one that consists in a unitary organisation of personal, tangible and intangible
         elements which pursues 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. Where a group of companies constitutes one and the same undertaking the Commission
         is entitled to impute liability for an infringement committed by the undertaking and to impose a fine on the company responsible
         for the actions of the group in the context of the infringement. see paras 121-122
         
         7.
          The situation in which two companies that have distinct legal identities form, or fall within, one and the same undertaking
         or economic entity adopting the same course of conduct on the market arises not only in cases where the relationship between
         the companies in question is that of parent and subsidiary. It may also occur, in certain circumstances, in relationships
         between a company and its commercial representative or between a principal and his agent. In so far as application of Articles
         85 and 86 of the Treaty (now Articles 81 EC and 82 EC) is concerned, the question whether a principal and his agent or  
         commercial representative form a single economic entity, the agent being an auxiliary body forming part of the principal's undertaking, is an important
         one for the purposes of establishing whether given conduct falls within the scope of one or other of those provisions. In
         that respect, in the case of companies having a vertical relationship, such as a principal and its agent or intermediary,
         two factors are taken to be the main parameters for determining whether there is a single economic unit: first, whether the
         intermediary takes on any economic risk and, secondly, whether the services provided by the intermediary are exclusive. In so far as concerns the assumption of economic risk, an agent may not be regarded as an auxiliary body forming part of its
         principal's business where the agreement entered into with the principal confers upon the agent or allows it to perform duties
         which from an economic point of view are approximately the same as those carried out by an independent dealer, because they
         provide for the said agent accepting the financial risks of selling or of the performance of the contracts entered into with
         third parties. In so far as concerns the question whether the services provided by the agent are exclusive, if, at the same time as it conducts
         business for the account of its principal, an agent undertakes, as an independent dealer, a very considerable amount of business
         for its own account on the market for the product or service in question, that tends not to suggest economic unity. see paras 124-128
         
         8.
          Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) apply only to anti-competitive conduct engaged in by undertakings
         on their own initiative. If anti-competitive conduct is required of undertakings by national legislation or if the latter
         creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 85 and 86
         do not apply. In such a situation, the restriction on competition is not attributable, as those provisions implicitly require,
         to the autonomous conduct of the undertakings.  Articles 85 and 86 may apply, however, if it is found that the national legislation does not preclude undertakings from engaging
         in autonomous conduct which prevents, restricts or distorts competition. Moreover, the possibility of excluding specific anti-competitive
         conduct from the scope of Article 85(1), on the ground that it was required of the undertakings in question by existing national
         legislation or that any possibility of competitive activity on their part has been eliminated, has been applied restrictively
         by the Community judicature. It follows that, in the absence of any binding regulatory provision imposing anti-competitive conduct, the Commission is entitled
         to conclude that the operators in question enjoyed no autonomy only if it appears on the basis of objective, relevant and
         consistent evidence that that conduct was unilaterally imposed upon them by the national authorities through the exercise
         of irresistible pressure, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial
         losses. see paras 176-179
         
         9.
          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 with a  
         gentleman's agreement. see para. 207
         
         10.
          The fact that an agreement to restrict competition is not implemented or followed is not sufficient to place it outside the
         scope of the prohibition laid down in Article 85(1) of the Treaty (now Article 81(1) EC), since it is participation in negotiations
         aimed at restricting competition that constitutes an infringement, even if the agreement is not performed. see para. 208
         
         11.
          The general method for setting fines described in 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 applies equally to fines imposed pursuant to Article 19(2)
         of Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport.
         Since, under that method, fines are calculated according to the two criteria referred to in Article 19(2) of Regulation No
         4056/86, namely the gravity of the infringement and its duration, and the maximum percentage of turnover of each undertaking
         as laid down in that provision is observed, the Guidelines do not go beyond the legal framework of the fines set out in that
         provision. see paras 270, 279
         
         12.
          The risk that an undertaking which has been granted a reduction in its fine in recognition of its cooperation will subsequently
         seek annulment of the decision finding the infringement of the competition rules and imposing a penalty on the undertaking
         responsible for the infringement, and will succeed before the Court of First Instance or before the Court of Justice on appeal,
         is a normal consequence of the exercise of the remedies provided for in the Treaty and the Statute of the Court. Accordingly,
         the mere fact that an undertaking which has cooperated with the Commission and which for that reason has been given a reduction
         in the amount of its fine has successfully challenged the Decision before the Community judicature cannot justify a fresh
         review of the size of the reduction granted to it. see para. 358
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)11 December 2003  (1)
         
         
               ((Competition – Regulation (EEC) No 4056/86 – Investigations carried out at company premises other than those of the company to which the investigation decision is addressed – Article 85(1) of the EC Treaty (now Article 81(1) EC) – State regulation on maritime transport and the practice of State authorities – Applicability of Article 85 of the Treaty – Whether infringing conduct may be imputed – Fines – Application of the guidelines on calculating fines))
               
             In Case T-66/99, 
            
            
            Minoan Lines SA, established in Heraklion (Greece), represented by I. Soufleros, lawyer, with an address for service in Luxembourg,
            
            
            applicant, 
            
            v
            Commission of the European Communities, represented by R. Lyal and D. Triantafyllou, acting as Agents, assisted by A. Oikonomou, lawyer, with an address for service
            in Luxembourg,
            
            defendant, 
            
             APPLICATION for annulment of Commission Decision 1999/271/EC of 9 December 1998 relating to a proceeding pursuant to Article
            85 of the EC Treaty (IV/34.466 ─ Greek Ferries) (OJ 1999 L 109, p. 24),
            
            
            THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
            
             composed of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh, Judges, 
            
             Registrar: J. Plingers, Administrator, 
            
            
            having regard to the written procedure and further to the hearing on 1 July 2002,
         gives the following
         
         
         Judgment
            
               Facts
            
         
         1
            
          The applicant, Minoan Lines SA, is a Greek ferry operator which provides passenger and vehicle transport services on the route
         between Patras (Greece) and Ancona (Italy). 
         
         
         2
            
          Following a complaint from a customer in 1992 that ferry prices were very similar on routes between Greece and Italy, the
         Commission, acting pursuant to Article 16 of Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed
         rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4), sent a request
         for information to certain ferry operators. Then, in accordance with Article 18(3) of Regulation No 4056/86, it carried out
         investigations at the offices of six ferry operators, five in Greece and one in Italy. 
         
         
         3
            
          On 4 July 1994 the Commission adopted decision C(94) 1790/5 requiring Minoan Lines SA to submit to an investigation (hereinafter
          
         the investigation decision). On 5 and 6 July 1994 Commission officials carried out inspections at premises situated at 64 B Kifissias Avenue, 151 25
         Maroussi, Athens. It later transpired that those premises belonged to the company European Trust Agency (
         ETA), a different legal entity from that mentioned in the investigation decision. During the inspection the Commission obtained
         copies of a large number of documents which it subsequently treated as evidence in relation to the various companies into
         which it was inquiring. 
         
         
         4
            
          The Commission later sent further requests for information, pursuant to Article 16 of Regulation No 4056/86, to Minoan Lines
         SA and to other ferry companies asking them to provide further details concerning the documents found during the inspection.
         
         
         
         5
            
          On 21 February 1997 the Commission initiated formal proceedings, sending a statement of objections to nine companies including
         the applicant. 
         
         
         6
            
          On 9 December 1998 the Commission adopted Decision 1999/271/EC relating to a proceeding pursuant to Article 85 of the EC Treaty
         (IV/34.466 ─ Greek Ferries) (OJ 1999 L 109, p. 24, hereinafter  
         the Decision). 
         
         
         7
            
          The Decision contains the following provisions: Article 1
         1.
          Minoan Lines, Anek Lines, Karageorgis Lines, Marlines SA and Strintzis Lines have infringed Article 85(1) of the EC Treaty
         by agreeing prices to be applied to roll-on roll-off ferry services between Patras and Ancona.
          The duration of these infringements is as follows:
         
         (a)
          in the case of Minoan Lines and Strintzis Lines, from 18 July 1987 until July 1994; 
         
         
         (b)
          in the case of Karageorgis Lines, from 18 July 1987 until 27 December 1992; 
         
         
         (c)
          in the case of Marlines SA, from 18 July 1987 until 8 December 1989; 
         
         
         (d)
          in the case of Anek Lines, from 6 July 1989 until July 1994. 
         
         
         2.
          Minoan Lines, Anek Lines, Karageorgis Lines, Adriatica di Navigazione SpA, Ventouris Group Enterprises SA and Strintzis Lines
         have infringed Article 85(1) of the EC Treaty by agreeing on the levels of fares for trucks to be applied on the Patras to
         Bari and Brindisi routes.
          The duration of these infringements is as follows:
         
         (a)
          in the case of Minoan Lines, Ventouris Group Enterprises SA and Strintzis Lines, from 8 December 1989 until July 1994; 
         
         
         (b)
          in the case of Karageorgis Lines, from 8 December 1989 until 27 December 1992; 
         
         
         (c)
          in the case of Anek Lines, from 8 December 1989 until July 1994; 
         
         
         (d)
          in the case of Adriatica di Navigazione SpA, from 30 October 1990 until July 1994. 
         Article 2 The following fines are hereby imposed on the following undertakings in respect of the infringement found in Article 1:
         
         
         ─
             Minoan Lines, a fine of ECU 3.26 million, 
          Minoan Lines, a fine of ECU 3.26 million, 
         
         
         
         ─
             Strintzis Lines, a fine of ECU 1.5 million, 
          Strintzis Lines, a fine of ECU 1.5 million, 
         
         
         
         ─
             Anek Lines, a fine of ECU 1.11 million, 
          Anek Lines, a fine of ECU 1.11 million, 
         
         
         
         ─
             Marlines SA, a fine of ECU 0.26 million, 
          Marlines SA, a fine of ECU 0.26 million, 
         
         
         
         ─
             Karageorgis Lines, a fine of ECU 1 million, 
          Karageorgis Lines, a fine of ECU 1 million, 
         
         
         
         ─
             Ventouris Group Enterprises SA, a fine of ECU 1.01 million, 
          Ventouris Group Enterprises SA, a fine of ECU 1.01 million, 
         
         
         
         ─
             Adriatica di Navigazione SpA, a fine of ECU 0.98 million. 
          Adriatica di Navigazione SpA, a fine of ECU 0.98 million. 
         ...
         
         
         8
            
          The Decision was addressed to seven undertakings: Minoan Lines, established in Heraklion, Crete (Greece) (hereinafter  
         the applicant or  
         Minoan), Strintzis Lines, established in Piraeus (Greece) (hereinafter  
         Strintzis), Anek Lines, established in Hania, Crete (hereinafter  
         Anek), Marlines SA, established in Piraeus (
         Marlines), Karageorgis Lines, established in Piraeus (
         Karageorgis), Ventouris Group Enterprises SA, established in Piraeus (
         Ventouris) and Adriatica di Navigazione SpA, established in Venice (Italy) (
         Adriatica). 
         Procedure and forms of order sought by the parties
         
         9
            
          By application lodged at the Registry of the Court of First Instance on 4 March 1999 the applicant brought the present action
         for annulment of the Decision. 
         
         
         10
            
          On hearing the report of the Judge-Rapporteur the Court decided to initiate the oral procedure and, by way of measures of
         organisation of procedure, called upon the Commission to answer, in writing, a question and to produce certain documents.
         The Commission complied with that request within the time allowed. 
         
         
         11
            
          The parties presented oral argument and answered the questions put to them by the Court at the hearing on 1 July 2002. 
         
         
         12
            
          The applicant claims that the Court should: 
         
         
         ─
             declare the action admissible, 
          declare the action admissible, 
         
         
         
         ─
             annul the Decision in so far as it concerns the applicant, 
          annul the Decision in so far as it concerns the applicant, 
         
         
         
         ─
             in the alternative, annul the fine imposed on the applicant or, in any event, reduce it to an appropriate amount, 
          in the alternative, annul the fine imposed on the applicant or, in any event, reduce it to an appropriate amount, 
         
         
         
         ─
             order the Commission to pay the costs. 
          order the Commission to pay the costs. 
         
         
         
         
         13
            
          The Commission contends that the Court should: 
         
         
         ─
             dismiss the action in its entirety; 
          dismiss the action in its entirety; 
         
         
         
         ─
             order the applicant to pay the costs. 
          order the applicant to pay the costs. 
         
         
         Law
         
         14
            
          Minoan puts forward three pleas in law in support of its application for annulment of the Decision. By the first, it alleges
         that the inspection carried out at ETA's offices was unlawful. By the second it pleads incorrect application of Article 85(1)
         of the EC Treaty (now Article 81(1) EC) in that the Decision imputes to it actions and initiatives taken by ETA. By its third
         plea the applicant alleges that the facts of the case were wrongly construed as showing the existence of agreements prohibited
         by Article 85(1) of the Treaty. This plea falls into two limbs: incorrect application of Article 85(1) of the Treaty, in that
         the undertakings concerned did not have the requisite autonomy, their conduct being dictated by legislation and directions
         from the Greek authorities, and incorrect classification of the contracts between the undertakings in the sector in question
         as agreements prohibited by Article 85(1) of the Treaty. 
         
         
         15
            
          In support of the application which it makes in the alternative, for annulment or reduction of the fine imposed on it, Minoan
         puts forward a fourth plea which may conveniently be divided into four limbs: incorrect assessment of the gravity of the infringement,
         of its duration, of the aggravating circumstances and of the mitigating circumstances. 
         
         
         
         I ─
          The application for annulment of the Decision
          The first plea: unlawfulness of the investigation carried out at ETA's offices
          Arguments of the parties
         
         
         16
            
          Minoan argues that the Decision is based essentially on documents which the Commission obtained unlawfully in that it seised
         them during an investigation carried out at the offices of ETA, a company that acted as the applicant's agent for routes between
         Greece and Italy but was not the company to which the investigation decision was addressed, namely Minoan itself. 
         
         
         17
            
          The applicant regards it as important to recall, at the outset, the circumstances in which this investigation took place.
         
         
         
         18
            
          When, on 5 July 1994, officials of the Commission went to ETA's premises at 64 B Kifissias Avenue, 15 125 Maroussi, Athens,
         and asked certain employees of ETA to agree to an investigation being carried out, the employees immediately drew the officials'
         attention to the fact that ETA was a separate legal entity that had no parent/subsidiary relationship with Minoan and that
         it was merely Minoan's agent. The applicant adds that, in spite of that warning, the Commission officials, after telephoning
         their superiors in Brussels, insisted on carrying out the investigation and threatened ETA, should they refuse, with the penalties
         laid down in Article 19(1) and Article 20(1) of Regulation No 4056/86. Moreover, according to the applicant, the Commission
         officials at the same time asked the department for investigation of the market and for competition of the Greek Ministry
         of Commerce, as the competent national authority in competition matters, to send one of its officials to ETA's offices to
         initiate the procedure under Article 26 of the Greek Law No 703/77 on the control of monopolies and oligopolies and protection
         of free competition, paragraph 6 of which provides that, in the event that an investigation is prevented or hindered, application
         may be made to the competent prosecuting authority in order to obtain the assistance of the police authorities with local
         jurisdiction. 
         
         
         19
            
          According to the applicant, it was in those circumstances and in view of the insistence of the Commission officials, the threat
         of a notice being drawn up recording ETA's opposition to the investigation, together with the sanctions that could ensue,
         and the threat of having the police force entry into ETA's offices, that the ETA employees decided to submit to the investigation.
         
         
         
         20
            
          Minoan states that, after the investigation, ETA asked the Commission, by letter of 18 August 1994, for the return of all
         the documents taken from its offices during the investigation on the ground that their seizure fell outside the scope  
         ratione personae of the investigation decision. That request was fruitless. The applicant goes on to mention the extensive discussions which
         that letter engendered within the Commission and asks the Court to direct the Commission to produce its internal notes of
         21, 23, 24, and 25 August 1994, which will support its action. Minoan then mentions the Commission's letter of reply to ETA
         of 30 August 1994, which states that the investigation had been lawful. ETA had then sent a second letter on 29 January 1995
         refuting the Commission's arguments regarding the lawfulness of the investigation. The applicant also considers, judging from
         the synoptic table which lists the documents in the file, that it is likely that a second, detailed, internal memorandum was
         drafted on 3 February 1995 to which it has been denied access and it requests the Court to direct the Commission to produce
         that document also, so that the Court may examine it and Minoan may have access to it and thus better protect its interests.
         
         
         
         21
            
          Minoan then goes on to state the reasons why it regards itself and ETA as separate and independent companies, from both a
         legal and an economic point of view. 
         
         
         22
            
          As far as the lawfulness of the investigation is concerned, Minoan submits that both the investigation decision and the investigation
         itself, along with the conduct of the Commission officials who constrained ETA staff to acquiesce to the search of the company's
         premises, constitute clear infringements of Article 189 of the EC Treaty (now Article 249 EC) and Article 18 of Regulation
         No 4056/86. 
         
         
         23
            
          Minoan observes in this connection, first of all, that whilst the fourth paragraph of Article 189 of the Treaty provides that
          
         [a] decision shall be binding in its entirety upon those to whom it is addressed, in the present case the investigation decision of 4 July 1994 was addressed not to ETA but to Minoan. The Commission officials
         were therefore carrying out an investigation at the premises of one company, ETA, on the basis of an investigation decision
         and authorisation relating to another company, the applicant itself. 
         
         
         24
            
          Secondly, Minoan submits that it is clear from the combined provisions of Article 18(1), (2) and (3) of Regulation No 4056/86
         and also from Article 19(1)(c) of the same regulation that the investigating powers referred to in Article 18(1), which include
         examining the books and other business records, taking copies, asking for oral explanations and entering  
         any premises, land and vehicles of undertakings, solely concern undertakings to which a decision of the kind referred to in Article 18(3) of the regulation is addressed.
         The same approach should be adopted to the threat of imposing fines under Article 19(1)(c) of Regulation No 4056/86 where
         undertakings refuse to submit to an investigation or where books or other business records requested are produced in incomplete
         form and also to the request for assistance made of the competent Greek authorities pursuant to Article 18(5) of the regulation.
         
         
         
         25
            
          Minoan also disputes the points which the Commission made in paragraph 139 of the Decision in support of its conclusion that
         the investigation was lawful. 
         
         
         26
            
          As regards, first of all, the circumstance that ETA, as representative of Minoan, described itself as  
         Minoan Athens and that it used Minoan's logo and trademark in its premises in Athens, the applicant observes that in modern commercial
         practice it is very common for one undertaking to use the logo and commercial badges of another where the two are connected
         by a long-term contractual relationship, as is the case with commercial agents, members of a distribution network or franchise
         holders within a franchise network. In such cases, the need for consistency across the network calls for the use of a common
         distinguishing sign, that of the principal, the head of the distribution network or franchiser. That, according to the applicant,
         in no way affects the legal or economic independence of undertakings which are given permission to use and do in fact use
         the trademark of another company in conducting their commercial affairs. Accepting the view expressed in the Decision would
         result in permitting the Commission to rely on a decision addressed to the head of a distribution network to carry out investigations
         at the premises of all the members of that network, despite their being legally and economically independent entities. That
         would clearly conflict with fundamental principles and fundamental provisions of both Community and national law. 
         
         
         27
            
          According to the applicant, this argument is not undermined by the fact that, before the investigation began, ETA's legal
         representative, Mr Sfinias, replied to a Commission request for information, signing, in the name of Minoan, a document at
         the top of which ETA's address appeared beneath the logo and trademark of Minoan. The applicant admits that the reply was
         indeed signed by Mr Sfinias, but emphasises that Mr Sfinias was acting on its express instructions. 
         
         
         28
            
          As regards the fact that ETA's address appeared beneath the logo and trademark of Minoan, the applicant points out that the
         corresponding information is shown at the foot of the page with the address of  
         International Lines Head Office, 64 B Kifissias Avenue, and that of the  
         Passengers Office, 2 avenue Vassileos Konstantinou. Those addresses were given so that clients and others could see that, for matters relating
         to the international routes, the issue of tickets and passenger departures from Athens, they must go to the offices of the
         company's general agent, he being the person with authority for the international routes and for questions concerning passengers.
         
         
         
         29
            
          Moreover, the applicant maintains that, even if all those factors had created confusion in the minds of the Commission officials,
         that confusion ought to have been cleared up, at the latest, by the time the officials entered ETA's premises, given the protests
         and explanations to which their visit gave rise and given the information which was furnished to them and which they had specifically
         asked for (ETA's lease and salary slips of company employees). 
         
         
         30
            
          The applicant also disputes the Commission's conclusion (at paragraph 139 of the Decision) that,  
         independently of ETA's occupation and use of the premises in question, Minoan permitted ETA to use these premises as  
         Minoan Athens premises, too. That is an arbitrary conclusion and is not implied by the contracts between Minoan and ETA. The applicant emphasises that
         the premises were occupied and used exclusively by ETA and that ETA conducted its business there with its own staff, its own
         capital and its own organisation, acting as Minoan's agent under contract. 
         
         
         31
            
          The applicant also disputes the Commission's argument that, even if Minoan had not in fact conducted business (
         in corpore) in the premises in question, the fact that documents belonging to it were found there gave the Commission the right to look
         for them. The applicant submits that an argument such as that is clearly inconsistent with the provisions of Regulation No
         4056/86 and contrary to fundamental principles of law. Moreover, it regards the argument as a dangerous one because, by making
         it, the Commission is claiming the right, on the basis of an investigation decision addressed to one party, to enter the premises
         of a different party which it thinks might be holding documents belonging to the undertaking to which the investigation decision
         is actually addressed, and to carry out investigations there on the basis of that decision. 
         
         
         32
            
          The applicant goes on to say that the Commission's argument stands in clear contradiction with the principle that the acts
         of the Community institutions must have a legal basis and with the principle of protection against arbitrary intervention
         by the public authorities in the sphere of private activity of any person, whether natural or legal (see Joined Cases 46/87
         and 227/88  
         Hoechst v  
         Commission [1989] ECR 2859, paragraph 19). Minoan also points out that the Court has repeatedly acknowledged that the general principle
         of protection of the rights of the defence in administrative procedures which may lead to the imposition of penalties also
         makes it necessary to prevent those rights from being irremediably impaired during preliminary inquiry procedures, including
         investigations (
         Hoechst v  
         Commission, cited above, paragraph 15). 
         
         
         33
            
          The applicant says that fundamental rights form an integral part of the general principles of law whose observance the Community
         judicature ensures and that, to that end, the Court of Justice and the Court of First Instance draw inspiration from the constitutional
         traditions common to the Member States. Furthermore, as provided in Article F(2) of the Treaty on European Union (now, after
         amendment, Article 6(2) EU),  
         the Union shall respect fundamental rights, as guaranteed by the European Convention on Human Rights ... and as they result
         from the constitutional traditions common to the Member States, as general principles of Community law. It observes that Article 9 of the Greek Constitution, which deals with the inviolability of the home, has been uniformly
         interpreted as applying also to commercial premises, including those belonging to legal entities under private law, such as
         companies. The applicant concludes by saying that these principles apply
         a fortiori where an investigation is carried out at the premises of an undertaking which is not the addressee of the investigation decision.
         
         
         
         34
            
          The applicant complains that the Commission officials made abusive and unlawful use of the investigation decision and authorisation
         and threatened ETA with sanctions and forced entry into its premises. It submits that if the officials concerned had had reason
         to believe that a search of ETA's premises was necessary, they ought to have obtained a fresh Commission decision expressly
         addressed to ETA, setting out the specific reasons for which ETA was to be made the subject of an investigation. 
         
         
         35
            
          According to the applicant, it follows that the Commission acted not only in breach of the investigation decision and authorisation
         but also, more generally, in breach of specific provisions and fundamental principles of Community law and, in particular,
         the principle that acts of the Community institutions must have a legal basis. 
         
         
         36
            
          The Commission, for its part, denies that it carried out an illegal investigation at ETA's offices or that it made unlawful
         use of the documents which it gathered on that occasion. When it conducted its investigation it believed that ETA was an auxiliary
         body forming part of Minoan's business and that it acted exclusively on behalf of and in the name of Minoan, not as an independent
         broker, as indeed it stated in paragraph 137 of the Decision. It believed that ETA was Minoan's  
         longa manus. 
         
         
         37
            
          The Commission observes that ETA described itself as  
         Minoan Lines and clearly gave third parties the impression that the offices at 64 B Kifissias Avenue, Athens, were Minoan's offices. It
         adds that, before the investigation, Mr Sfinias had replied to a Commission request for information, signing, in Minoan's
         name, a document on headed notepaper bearing Minoan's logo and trademark and the address of ETA's offices, without making
         any reference to ETA. 
         
         
         38
            
          The Commission maintains that all the business conducted in the offices which it inspected, or at least in some of it, was
         Minoan's business, irrespective of who was the tenant of those offices. What matters, according to the Commission, is not
         the formal lease, but the real situation, as it appears from the factors just mentioned. Even if the applicant had not actually
         (
         in corpore) conducted business there it is plain that documents belonging to it were found there and that, consequently, it was entitled,
         for that reason, to search for those documents. 
         
         
         39
            
          That being so, there is no question, in the Commission's view, of unlawfully obtained evidence or of arbitrary use of investigation
         powers. The inspection which it conducted was carried out in offices in which business was being transacted that was, partially,
         if not entirely, the business of Minoan, the company to which the investigation decision of 4 July 1994 was addressed. 
         
         
         40
            
          In any event, even if it had made a mistake as to the identity of the company which it investigated, the Commission says,
         first, that it made every possible effort to ascertain who was occupying the offices at 64 B Kifissias Avenue, where Minoan,
         the addressee of the investigation decision, carried on its Athens business. Secondly, the Commission regards it as simplistic
         of Minoan to say that the information which it was given ought to have removed any ambiguity concerning the manner and place
         in which it conducted its business. The Commission points out that, until the inspection began, there had never been any question
         of there being two distinct legal entities. On the contrary, ETA, which described itself as  
         Minoan Lines, presented itself as an integral part of Minoan and in fact operated as such. Moreover, ETA's manager, Mr Sfinias, answered
         correspondence addressed to Minoan, signing his letters beneath the logo and trademark of Minoan and giving ETA's address,
         yet made no allusion whatsoever to ETA itself. In light of all those factors tending to indicate unity of conduct between
         Minoan and ETA and to blur the distinction between them, the Commission maintains that the  
         information given by the ETA employees was not sufficient either to throw light instantly on the issue of a distinction between the two
         legal persons or to prevent the inspection from being carried out, and this all the more so as the distinction in fact called
         for an assessment of matters of substance which ignored the apparent circumstances. 
          Findings of the Court
         
         
         41
            
          By this plea the applicant essentially complains that the Commission unlawfully gathered the evidence on which it based the
         Decision in that it obtained that evidence in the course of an investigation carried out at the offices of a company that
         was not the addressee of the investigation decision. The applicant argues that, by so doing, the Commission exceeded its powers
         of investigation and infringed Article 189 of the Treaty, Article 18 of Regulation No 4056/86 and general principles of law.
         
         
         
         42
            
          In examining the merits of this plea reference should be made to the principles which determine the extent of the Commission's
         investigatory powers and the factual background to the case. 
          A ─ The Commission's powers of investigation
         
         
         43
            
          It is clear from the 16th recital in the preamble to Regulation No 4056/86 that the legislature saw fit that the regulation
         should make provision for the  
         decision-making powers and penalties that are necessary to ensure compliance with the prohibitions laid down in Article 85(1)
         and Article 86 [of the Treaty], as well as the conditions governing the application of Article 85(3). 
         
         
         44
            
          More specifically, the powers granted the Commission in on-the-spot investigations are set out in Article 18 of Regulation
         No 4056/86. That provision reads as follows: Article 18 Investigating powers of the Commission
         
         1.
          In carrying out the duties assigned to it by this regulation, the Commission may undertake all necessary investigations into
         undertakings and associations of undertakings.
          To this end the officials authorised by the Commission are empowered:
         
         (a)
          to examine the books and other business records; 
         
         
         (b)
          to take copies of or extracts from the books and business records; 
         
         
         (c)
          to ask for oral explanations on the spot; 
         
         
         (d)
          to enter any premises, land and vehicles of undertakings. 
         
         
         2.
          The officials of the Commission authorised for the purpose of these investigations shall exercise their powers upon production
         of an authorisation in writing specifying the subject matter and purpose of the investigation and the penalties provided for
         in Article 19(1)(c) in cases where production of the required books or other business records is incomplete. In good time
         before the investigation, the Commission shall inform the competent authority of the Member State in whose territory the same
         is to be made of the investigation and of the identity of the authorised officials.
         
         
         3.
          Undertakings and associations of undertakings shall submit to investigations ordered by decision of the Commission. The decision
         shall specify the subject matter and purpose of the investigation, appoint the date on which it is to begin and indicate the
         penalties provided for in Article 19(1)(c) and Article 20(1)(d) and the right to have the decision reviewed by the Court of
         Justice.
         
         
         4.
          The Commission shall take decisions referred to in paragraph 3 after consultation with the competent authority of the Member
         State in whose territory the investigation is to be made.
         
         
         5.
          Officials of the competent authority of the Member State in whose territory the investigation is to be made, may at the request
         of such authority or of the Commission, assist the officials of the Commission in carrying out their duties.
         
         
         6.
          Where an undertaking opposes an investigation ordered pursuant to this article, the Member State concerned shall afford the
         necessary assistance to the officials authorised by the Commission to enable them to make their investigation. To this end,
         Member States shall take the necessary measures, after consulting the Commission, before 1 January 1989.
         
         
         
         45
            
          The wording of Article 18 of Regulation No 4056/86 is the same as that of Article 14 of Council Regulation No 17: First Regulation
         implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition, Series I (1959-1962), p. 87). Both regulations
         were adopted in implementation of Article 87 of the EC Treaty (now, after amendment, Article 83 EC) in order to clarify the
         precise rules for applying Article 85 of the Treaty and 86 of the EC Treaty (now Article 82 EC). The case-law relating to
         the scope of the Commission's investigatory powers under Article 14 of Regulation No 17 is therefore equally applicable to
         the present case. 
         
         
         46
            
          According to Article 87(2)(a) and (b) of the Treaty, the purpose of Regulation No 17 is to ensure compliance with the prohibitions
         laid down in Article 85(1) and Article 86 of the EC Treaty and to lay down detailed rules for the application of Article 85(3).
         The regulation is thus intended to ensure that the aim stated in Article 3(f) of the Treaty is achieved. To that end it confers
         on the Commission wide powers of investigation and of obtaining information by providing, in the eighth recital in its preamble,
         that the Commission must be empowered, throughout the common market, to require such information to be supplied and to undertake
         such investigations  
         as are necessary to bring to light infringements of Articles 85 and 86 of the Treaty (Case 136/79  
         National Panasonic v  
         Commission [1980] ECR 2033, paragraph 20, and Case 155/79  
         AM & S v  
         Commission [1982] ECR 1575, paragraph 15). The 16th recital in the preamble to Regulation No 4056/86 is to the same effect. 
         
         
         47
            
          Equally, the Community judicature has emphasised how important it is that fundamental rights are respected, particularly the
         rights of the defence in all procedures involving application of the competition rules laid down in the Treaty, and has specified
         how the rights of the defence are to be reconciled with the Commission's powers during administrative procedures and also
         at the preliminary stages of inquiry and information gathering. 
         
         
         48
            
          The Court has ruled that the rights of the defence must be observed by the Commission during administrative procedures which
         may lead to the imposition of penalties and also during preliminary inquiry procedures because it is necessary to prevent
         those rights from being irremediably impaired during preliminary inquiry procedures including, in particular, investigations
         which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may
         be liable (
         Hoechst v  
         Commission, cited above, paragraph 15). 
         
         
         49
            
          As regards, more specifically, the powers accorded the Commission by Article 14 of Regulation No 17 and the extent to which
         the rights of the defence may restrict them, the Court has acknowledged that the need for protection against arbitrary or
         disproportionate intervention by public authorities in the sphere of the private activities of any person, whether natural
         or legal, constitutes a general principle of Community law (
         Hoechst v  
         Commission, cited above, paragraph 19, and Case C-94/00  
         Roquette Frères [2002] ECR I-9011, paragraph 27). The Court has held that, in all the legal systems of the Member States, any intervention
         by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis
         and be justified on the grounds laid down by law, and, consequently, that those systems provide, albeit in different forms,
         protection against arbitrary or disproportionate intervention. 
         
         
         50
            
          The Court has also held that the aim of the powers given to the Commission by Article 14 of Regulation No 17 is to enable
         it to carry out its duty under the EC Treaty of ensuring that the rules on competition are applied in the common market. The
         function of those rules is, as follows from the fourth recital in the preamble to the Treaty, Article 3(f) and Articles 85
         and 86, to prevent competition from being distorted to the detriment of the public interest, individual undertakings and consumers.
         The exercise of these powers thus contributes to the maintenance of the system of competition intended by the Treaty with
         which undertakings are absolutely bound to comply (
         Hoechst v  
         Commission, cited above, paragraph 25). 
         
         
         51
            
          Similarly, the Court has held that both the purpose of Regulation No 17 and the list of powers conferred on the Commission's
         officials by Article 14 thereof show that the scope of investigations may be very wide. More specifically, the Court has expressly
         ruled that  
         the right to enter any premises, land and means of transport of undertakings is of particular importance inasmuch as it is
         intended to permit the Commission to obtain evidence of infringements of the competition rules in the places in which such
         evidence is normally to be found, that is to say, on the business premises of undertakings (
         Hoechst v  
         Commission, paragraph 26). 
         
         
         52
            
          The Court has also taken pains to emphasise how important it is to preserve the effectiveness of investigations as a necessary
         tool for the Commission in carrying out its role as guardian of the treaty in competition matters, ruling that  
         that right of access would serve no useful purpose if the Commission's officials could do no more than ask for documents or
         files which they could identify precisely in advance. On the contrary, such a right implies the power to search for various
         items of information which are not already known or fully identified. Without such a power, it would be impossible for the
         Commission to obtain the information necessary to carry out the investigation if the undertakings concerned refused to cooperate
         or adopted an obstructive attitude (
         Hoechst v  
         Commission, cited above, paragraph 27). 
         
         
         53
            
          Nevertheless, it should be noted that Community law provides undertakings with a range of guarantees against arbitrary or
         disproportionate intervention by public authorities in the sphere of their private activities (
         Roquette Frères, cited above, paragraph 43). 
         
         
         54
            
          Article 14(3) of Regulation No 17 requires the Commission to state reasons for the decision ordering an investigation by specifying
         its subject-matter and purpose. As the Court has held, this is a fundamental requirement, designed not merely to show that
         the proposed entry onto the premises of the undertakings concerned is justified but also to enable the undertakings to assess
         the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence (
         Hoechst v  
         Commission, paragraph 29, and  
         Roquette Frères, cited above, paragraph 47). 
         
         
         55
            
          The Commission is likewise obliged to state in that decision, as precisely as possible, what it is looking for and the matters
         to which the investigation must relate (
         National Panasonic v  
         Commission, cited above, paragraphs 26 and 27). As the Court has held, that requirement is intended to protect the rights of defence
         of the undertakings concerned, which would be seriously compromised if the Commission could rely on evidence against undertakings
         which was obtained during an investigation but was not related to the subject-matter or purpose thereof (Case 85/87  
         Dow Benelux v  
         Commission [1989] ECR 3137, paragraph 18, and  
         Roquette Frères, paragraph 48). 
         
         
         56
            
          Moreover, an undertaking against which the Commission has ordered an investigation may bring an action against that decision
         before the Community judicature under the fourth paragraph of Article 173 of the EC Treaty (now, after amendment, the fourth
         paragraph of Article 230 EC). If the decision in question is annulled by the Community judicature, the Commission will in
         that event be prevented from using, for the purposes of proceeding in respect of an infringement of the Community competition
         rules, any documents or evidence which it might have obtained in the course of that investigation, as otherwise the decision
         on the infringement might, in so far as it was based on such evidence, be annulled by the Community judicature (see the orders
         of the President of the Court of Justice in Case 46/87 R  
         Hoechst v  
         Commission [1987] ECR 1549, paragraph 34, and in Case 85/87 R  
         Dow Chemical Nederland v  
         Commission [1987] ECR 4367, paragraph 17, and  
         Roquette Frères, paragraph 49). 
         
         
         57
            
          Those are the considerations which must inform the Court's examination of the merits of the applicant's plea that the investigation
         was unlawful. 
          B ─ The merits of the plea
         
         
         58
            
          Before the merits of this plea can be examined it is necessary to set out the circumstances in which the investigation was
         carried out. 
          1. Relevant facts agreed between the parties
         
         
         59
            
          On 12 October 1992, acting pursuant to Regulation No 4056/86 on a complaint that ferry prices were very similar on routes
         between Greece and Italy, the Commission sent a request for information to Minoan at its registered office (Agiou Titou 38,
         Heraklion, Crete). 
         
         
         60
            
          On 20 November 1992 the Commission received a letter in response to its request for information, signed by Mr Sfinias on Minoan
         headed paper which bore, in the top left-hand corner, the single commercial logo  
         Minoan Lines and, beneath that, the address  
         2 Vas. Konstantinou Ave., (Stadion); 116 35, ATHENS. 
         
         
         61
            
          On 1 March 1993 the Commission sent a second request for information to Minoan, again at its registered office in Heraklion.
         
         
         
         62
            
          On 5 May 1993 an answer was given to the Commission's letter of 1 March 1993 in a letter again signed by Mr Sfinias on Minoan
         headed paper which again bore the commercial logo  
         Minoan Lines in the top left-hand corner, but this time with no address beneath it. At the foot of the page were two addresses:  
         INTERNATIONAL LINES HEAD OFFICES: 64 B Kifissias Ave., GR, 151 25 Maroussi, Athens and below that  
         PASSENGER OFFICE: 2 Vassileos Konstantinou Ave., GR, 116 35 Athens. 
         
         
         63
            
          On 5 July 1994, certain Commission officials went to premises situated at 64 B Kifissias Avenue, 151 25 Maroussi, Athens,
         and gave to certain persons who, it transpired, are employees of ETA, the investigation decision and authorisations Nos D/06658
         and D/06659 of 4 July 1994, signed by the Director-General of the Directorate-General for Competition, authorising the officials
         to carry out the investigation. 
         
         
         64
            
          On the basis of those documents, the Commission officials asked the ETA employees to agree to the investigation being carried
         out. The employees however drew the Commission officials' attention to the fact that they were at the offices of ETA, that
         they were employees of ETA and that ETA was a separate legal entity that had no relationship with Minoan other than that of
         being its agent. The Commission officials, after telephoning their superiors in Brussels, insisted on carrying out the investigation
         and reminded the ETA employees that, should they refuse, sanctions under Article 19(1) and Article 20(1) of Regulation No
         4056/86 could be adopted. (Those two provisions were cited in the investigation decision and the text of the provisions was
         set out in an annex thereto.) The Commission officials also asked the department for investigation of the market and for competition
         of the Greek Ministry of Commerce, as the competent national authority in competition matters, to send one of its officials
         to ETA's offices. 
         
         
         65
            
          The Commission officials did not expressly advise the ETA employees of their right to legal assistance but gave them a two-page
         note which explained the nature and normal conduct of the investigation. 
         
         
         66
            
          After telephoning their manager, who was not in Athens, the ETA employees finally decided to submit to the investigation,
         albeit signalling that they would record their disagreement in the minutes. 
         
         
         67
            
          The Commission officials then began their investigation, which ended the following day, 6 July 1994. 
         
         
         68
            
          Lastly, it should be mentioned, as the applicant itself has emphasised (see paragraph 26 of the present judgment), that, as
         the applicant's representative, ETA had full authority to act as, and to refer to itself in commercial matters, as  
         Minoan Lines Athens and to use Minoan's trademark and logo in the conduct of its business as agent. 
         
         
         69
            
          In light of the foregoing, the Court regards it as clear from the facts that: 
         
         
         ─
             first, in carrying out its work as agent and representative of Minoan, ETA had authority to present itself to the public at
            large and to the Commission as Minoan, its identity, when conducting the commercial matters in question being practically
            coterminous with that of Minoan; 
          first, in carrying out its work as agent and representative of Minoan, ETA had authority to present itself to the public at
         large and to the Commission as Minoan, its identity, when conducting the commercial matters in question being practically
         coterminous with that of Minoan; 
         
         
         
         ─
             secondly, the fact that the Commission's letters to Minoan were passed on to Mr Sfinias so that he would reply directly to
            the Commission indicates that Minoan, ETA and Mr Sfinias were all aware from the beginning of the Commission's intervention
            that the institution was in the process of dealing with a complaint; they also learned of the nature of the complaint, the
            subject-matter of the request for information and the fact that the Commission was acting pursuant to Regulation No 4056/86,
            which was cited in the letters in question; it follows that, by sending the letters to Mr Sfinias for an answer, Minoan gave
            him, and ETA, authority to present themselves to the Commission as the interlocutor duly appointed by Minoan for the purposes
            of the investigation; 
          secondly, the fact that the Commission's letters to Minoan were passed on to Mr Sfinias so that he would reply directly to
         the Commission indicates that Minoan, ETA and Mr Sfinias were all aware from the beginning of the Commission's intervention
         that the institution was in the process of dealing with a complaint; they also learned of the nature of the complaint, the
         subject-matter of the request for information and the fact that the Commission was acting pursuant to Regulation No 4056/86,
         which was cited in the letters in question; it follows that, by sending the letters to Mr Sfinias for an answer, Minoan gave
         him, and ETA, authority to present themselves to the Commission as the interlocutor duly appointed by Minoan for the purposes
         of the investigation; 
         
         
         
         ─
             thirdly, it is clear both from the foregoing and from the fact that Minoan had delegated the conduct of its business to ETA
            that the offices at 64 B Kifissias Avenue housed in fact the real centre of  
            Minoan's commercial activities and were therefore the place where the books and business records relating to the activities in question
            were held. 
          thirdly, it is clear both from the foregoing and from the fact that Minoan had delegated the conduct of its business to ETA
         that the offices at 64 B Kifissias Avenue housed in fact the real centre of  
         Minoan's commercial activities and were therefore the place where the books and business records relating to the activities in question
         were held. 
         
         
         
         
         70
            
          It follows that those premises were the premises of Minoan as addressee of the investigation decision, within the meaning
         of Article 18(1)(d) of Regulation No 4056/86. 
          2. Compliance with the principles defining the extent of the Commission's powers of investigation
         
         
         71
            
          It is clear from the documents before the Court that both the investigation decision and the investigation authorisations
         which the Commission officials presented to the ETA employees satisfied the requirement to state the subject-matter and purpose
         of the investigation. The investigation decision in fact devotes a page and a half of its preamble to explaining the basis
         of the Commission's conclusion that the principal companies serving routes between Greece and Italy might have formed a cartel
         on ferry rates for passengers, vehicles and lorries contrary to Article 85(1) of the Treaty. It sets out the principal characteristics
         of the relevant market, names the principal companies operating in that market, including Minoan, defines the market shares
         of the companies serving the three routes and describes in detail the type of conduct which it regards as possibly contravening
         Article 85(1) of the Treaty. The decision clearly states that the addressee company, Minoan, is one of the principal companies
         active in the market and states that Minoan is already aware of the investigation. 
         
         
         72
            
          Next, Article 1 of the operative part of the investigation decision expressly states that the purpose of the investigation
         is to establish whether the mechanisms for setting the prices or rates charged by the companies operating roll-on roll-off
         ferries between Greece and Italy are contrary to Article 85(1) of the Treaty. Article 1 of the investigation decision also
         mentions the addressee's obligation to submit to the investigation and describes the powers of the Commission officials in
         the investigation. Article 2 states the date on which the investigation is to be carried out. Article 3 gives the name of
         the addressee of the decision. It states that the decision is addressed to Minoan. Three addresses are given as potential
         inspection sites: first, 28 Poseidon Key, Piraeus, secondly, 24 Poseidon Key, thirdly 64 B Kifissias Avenue, 151 25 Maroussi,
         Athens, the place to which the Commission officials ultimately went. Lastly, Article 4 mentions the right to bring an action
         against the investigation decision before the Court of First Instance, explaining that any such action would not have suspensive
         effect unless the Court were to decide otherwise. 
         
         
         73
            
          As far as concerns the investigation authorisations given to the Commission officials, these expressly stated that the officials
         were authorised to proceed in accordance with the objectives set out in the investigation decision, a copy of which was annexed
         thereto. 
         
         
         74
            
          That being so, it was clear from the content of those documents that the Commission was seeking evidence of Minoan's involvement
         in a presumed cartel and believed it would find that evidence, amongst other places, at the premises at 64 B Kifissias Avenue,
         151 25 Maroussi, Athens, which it regarded as belonging to Minoan. It this connection, it should be borne in mind that that
         was the address printed on the notepaper used by Minoan on 5 May 1993 to reply to the Commission's request for information
         of 1 March 1993, the words  
         INTERNATIONAL LINES HEAD OFFICES: 64 B Kifissias Avenue GR, 151 25 Maroussi, Athens being printed at the foot of the page. 
         
         
         75
            
          The Court finds that the investigation decision and authorisations contained all the necessary information to enable the ETA
         employees to judge whether, given the reasons underlying the decision and in light of their knowledge of the nature and extent
         of the relationship between ETA and Minoan, they were obliged to consent to the investigation which the Commission proposed
         to carry out at their premises. 
         
         
         76
            
          It must therefore be concluded that, as far as the investigation decision and authorisations are concerned, the requirements
         laid down by case-law were fully satisfied in so far as concerns the occupier of the premises inspected, namely ETA, because,
         as the company managing Minoan's affairs in the market for roll-on roll-off passenger ferry services between Greece and Italy,
         it was in a position to comprehend the extent of its duty to cooperate with the Commission officials and because its rights
         of defence remained fully protected, given the detailed statement of reasons provided in those documents and the express mention
         of its right to bring an action against the investigation decision before the Court of First Instance. The fact that it subsequently
         chose not to bring an action does not undermine that conclusion; it tends to confirm it. 
         
         
         77
            
          It should be borne in mind in this connection that, whilst ETA was legally a separate entity from Minoan, in its role as Minoan's
         representative and sole manager of those of Minoan's affairs which were the subject-matter of the investigation, its identity
         merged with that of its principal. Consequently, it fell under the same obligation to cooperate as that incumbent on its principal.
         
         
         
         78
            
          Furthermore, in the event that Minoan might be permitted to avail itself of the rights of defence of ETA, a distinct entity,
         it must be held that those rights have never been called into question. The investigation had no bearing either on any separate
         business ETA might have had or ETA's own books and business records. 
         
         
         79
            
          The applicant complains that the Commission infringed the fourth paragraph of Article 189 of the Treaty, which provides that
          
         a decision shall be binding in its entirety upon those to whom it is addressed because, in the present case, the Commission carried out an investigation at the premises of one company, ETA, on the basis
         of an investigation decision and authorisations relating to another company, namely Minoan. 
         
         
         80
            
          That argument, however, is irrelevant. First of all, the reference to Article 189 of the Treaty adds nothing to the applicant's
         essential argument that the basic infringement consisted in the Commission's alleged breach of Article 18 of Regulation No
         4056/86 and of general principles of law, and in the alleged abuse of its powers of investigation. Article 189 of the Treaty
         merely states what legislative measures and decisions are available to the institutions together with their respective legal
         effects. Secondly, even if Article 189 were pertinent in this case, it would merely underscore the mandatory effect of the
         investigation decision which was  
         binding in its entirety upon Minoan, as addressee of the decision, and upon ETA, as agent and representative authorised by Minoan for the purposes
         of the investigation. 
         
         
         81
            
          The Commission cannot be criticised in this case for having assumed that Minoan had its own premises at the address in Athens
         to which the Commission officials went or for having stated that address in its investigation decision as being the place
         in which Minoan had one of its centres of activity. 
         
         
         82
            
          Next, the Court addresses the question whether the Commission, in insisting on carrying out its investigation, satisfied all
         relevant legal requirements. 
         
         
         83
            
          It is clear from the case-law mentioned earlier that the Commission must, in all its investigatory work, ensure compliance
         with the principle that the actions of the Community institutions must have a legal basis and with the principle of protection
         against arbitrary intervention by the public authorities in the sphere of private activities of any person, whether natural
         or legal (see  
         Hoechst v  
         Commission, cited above, paragraph 19). It would be excessive and contrary to the provisions of Regulation No 4056/86 and fundamental
         principles of law to allow the Commission a general right of access, based on an investigation decision addressed to one legal
         entity, to inspect premises belonging to another legal entity simply on the pretext that the latter is closely connected with
         the addressee of the investigation decision or that the Commission believes it will find there documents belonging to the
         addressee of the decision. 
         
         
         84
            
          However, in the present case, the applicant cannot justly complain that the Commission attempted to broaden its investigatory
         powers, visiting premises belonging to a company other than the addressee of the decision. On the contrary, it is clear from
         the documents before the Court that the Commission acted diligently and amply fulfilled its duty to make as sure as possible,
         before the investigation began, that the premises which it proposed to inspect indeed belonged to the legal entity which it
         wished to investigate. It should not be forgotten in this connection that there had been an exchange of correspondence between
         the Commission and Minoan in which Minoan had answered two letters from the Commission with two letters signed by Mr Sfinias,
         who, it finally transpired, is the manager of ETA, without mentioning ETA's very existence or the fact that it was operating
         in the market through an exclusive agent. 
         
         
         85
            
          It should also be observed, as the Commission pointed out in its defence, without being contradicted on the point by the applicant,
         that the list of members of the union of Greek ferry owners operating on coastal routes includes Mr Sfinias, the signatory
         of the two letters from Minoan, that the table of tariffs published by Minoan mentions a general agency with an address at
         64 B Kifissias Avenue, Athens and, lastly, that the Athens telephone directory contains an entry for Minoan Lines at the address
         to which the Commission officials went in order to carry out their investigation. 
         
         
         86
            
          However, the question remains whether, after having discovered that ETA was a different company and that they were therefore
         not in possession of an investigation decision for that company, the Commission officials ought to have withdrawn and, if
         appropriate, returned with a decision addressed to ETA, properly setting out the reasons warranting the investigation in this
         particular case. 
         
         
         87
            
          The Court must hold that, in view of these particular circumstances, it was reasonable of the Commission to regard the  
         information given by the ETA employees as insufficient either to throw light instantly on the issue of a distinction between the two
         undertakings or to warrant suspending the inspection, and this all the more so, as the Commission emphasises, because deciding
         whether or not the two were in fact the same undertaking called for an assessment of matters of substance and, in particular,
         interpretation of the scope of Article 18 of Regulation No 4056/86. 
         
         
         88
            
          In the circumstances of the present case, it must be held that, even after ascertaining that the premises they were visiting
         belonged to ETA and not to Minoan, the Commission was entitled to take the view that they should be treated as premises used
         by Minoan for the conduct of its business and that, therefore, they could be treated as being the business premises of the
         undertaking to which the investigation decision was addressed. It should be borne in mind in this connection that the Court
         has held that the right to enter any premises, land and means of transport of undertakings is of particular importance inasmuch
         as it is intended to permit the Commission to obtain evidence of infringements of the competition rules in the places in which
         such evidence is normally to be found, that is to say, on the  
         business premises of undertakings (
         Hoechst v  
         Commission, cited above, paragraph 26). In the exercise of its investigatory powers, therefore, the Commission was entitled to take
         into account in its reasoning the fact that its chances of finding proof of the supposed infringement would be higher if it
         were to investigate the premises from which the target company in fact conducted its business as a matter of practice. 
         
         
         89
            
          In any event, the Court would add that there was no definitive opposition to the Commission proceeding with its investigation.
         
         
         
         90
            
          It follows that, in the present case, the Commission did not exceed its powers of investigation under Article 18(1) of Regulation
         No 4056/86 when it insisted on carrying out an investigation. 
          3. The rights of the defence and the question whether there was excessive interference on the part of the public authorities
         in the sphere of ETA's activities
         
         
         91
            
          As the Court has pointed out, according to its case-law and that of the Court of Justice, whilst it is necessary to preserve
         the utility of Commission investigations, the Commission must, for its part, satisfy itself that the rights of defence of
         the undertaking under investigation are respected and must abstain from all arbitrary or disproportionate intervention in
         the sphere of their private activities (
         Hoechst v  
         Commission, cited above, paragraph 19,  
         Dow Benelux v  
         Commission, cited above, paragraph 30, Joined Cases 97/87 to 99/87
         Dow Chemical Ibérica and Others v  
         Commission [1989] ECR 3165, paragraph 16, and Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94
         T-329/94 and T-335/94  
         Limburgse Vinyl Maatschappij and Others v  
         Commission [1999] ECR II-931 (
         PVC II), paragraph 417). 
         
         
         92
            
          As regards observance of the rights of the defence, the Court points out that neither the applicant nor the legal entity which
         occupied the premises inspected by the Commission, that is to say ETA, thought it appropriate to bring an action against the
         investigation decision on the basis of which the investigation was conducted, even though, as Article 18(3) of Regulation
         No 4056/86 expressly provides, that was within their power. 
         
         
         93
            
          Furthermore, as for the applicant, suffice it to say that it now avails itself of its right to ask for judicial review of
         the intrinsic lawfulness of the investigation as part of its present action for annulment of the final decision which the
         Commission adopted under Article 85(1) of the Treaty. 
         
         
         94
            
          It is also established that, in so far as the ETA employees made no definitive opposition to the Commission proceeding with
         its investigation, the Commission saw itself under no obligation to seek a warrant and/or the assistance of the police in
         order to carry out the investigation. It follows that an investigation of the sort that was carried out in the present case
         is one that is carried out with the cooperation of the undertaking concerned. The fact that the Greek competition authorities
         were contacted and that one of their agents came to the investigation site cannot undo that conclusion because that measure
         is provided for by Article 18(5) of Regulation No 4056/86 in cases where undertakings do not oppose investigation. That being
         so, there can be no question of undue interference by the public authority in the sphere of ETA's activity, there being no
         evidence that the Commission went beyond the cooperation offered by the ETA employees (
         PVC II, cited above, paragraph 422). 
          C ─ Conclusion
         
         
         95
            
          It is clear from the foregoing that in this case the Commission fully obeyed the law as regards both the investigation authorisations
         which it granted and the manner in which it subsequently conducted the investigation and that, in doing so, it preserved the
         rights of defence of the undertakings concerned and fully complied with the general principle of Community law that guarantees
         protection against intervention by public authorities in the sphere of the private activities of any person, whether natural
         or legal, that is arbitrary or disproportionate. 
         
         
         96
            
          The Court finds that it has sufficient information on the facts and on the relevant rights to consider this plea and consequently
         finds that there are no grounds for acceding to the applicant's request for the production of documents. 
         
         
         97
            
          This plea must therefore be ruled unfounded. 
          The second plea: the Commission wrongly imputed to the applicant the actions and initiatives taken by ETA
          Arguments of the parties
         
         
         98
            
          The applicant submits that it suffered an injustice in that the Commission imputed to it actions and initiatives by ETA, which,
         according to the Decision, infringed Article 85(1) of the Treaty. 
         
         
         99
            
          First, the applicant argues that several of the activities complained of were ETA's own initiatives, not approved by Minoan
         and outside the scope of the ETA-Minoan contracts, and that Minoan should not be regarded as responsible for them. The applicant
         maintains that, contrary to the Commission's submission, those contracts do not indicate that ETA was acting on its instructions
         and under its control. On the contrary, ETA is largely autonomous. It maintains its own network of associate offices throughout
         Greece (with the exception of Crete) and has power to nominate, under its own responsibility, agents in Greece and abroad.
         Nor do the contracts show that ETA was given authorisation to enter into unlawful cooperation with other companies. Indeed,
         no document shows that Minoan asked ETA to do so. The applicant maintains that agreeing by contract the commission that agents
         would be paid does not prove that ETA was not an independent company. 
         
         
         100
            
          Next, the applicant disputes the Commission's assertion (at paragraph 137 of the Decision) that ETA should be described as
         its  
         longa manus, operating as its representative and as an intermediary who acts exclusively on its behalf and does not undertake business
         on its own account. The fact that ETA is the applicant's agent does not necessarily mean that all of its initiatives should
         be imputed to the applicant, especially where they fall outside the ambit of their contractual relationship and where there
         is no instruction or  
         a posteriori   approval from the applicant. 
         
         
         101
            
          The applicant adds that, contrary to the Commission's assertion, it is not only in his communications with Minoan's headquarters
         in Heraklion that Mr Sfinias mentions ETA. Quite the opposite, the telexes to which the Commission refers give, both in the
         heading (that is, before the name of the sender and addressee or addressees) and at the foot of the page, below Mr Sfinias's
         name, the name and facsimile number of ETA, so as to indicate who the real sender is. The applicant adds that the words  
         Minoan Lines and  
         Minoan Lines Athens are attributable to a need for concision and a desire to avoid the use of  
         ETA Worldwide General Agents for Minoan Lines. 
         
         
         102
            
          Minoan maintains that it never called upon ETA's legal representative, Mr Sfinias, to enter into illegal agreements, but admits
         that, to the extent that it was informed of such matters, it did not forbid him either from entering into discussions with
         other companies. Since Minoan was convinced that any such discussions fell within the ambit of the policy of the Ministry
         of Merchant Shipping it did not regard them as  
         particularly serious. 
         
         
         103
            
          In support of its assertion that it was unaware of the activities engaged in by ETA, the applicant maintains that it did not
         focus attention on the contacts and discussions entered into by Mr Sfinias, concentrating instead on his proposals in the
         matter of tariff policy so as to approve, reject or correct the prices proposed on the basis of various economic parameters
         and in accordance with its own criteria. Mr Sfinias's statements at the hearing on 13 and 14 May 1997 confirm that. In particular,
         Mr Sfinias said the following: Our company is instructed by contract to create the best possible operating conditions for Minoan's vessels based on actions
         and initiatives which Minoan regards as the best. We ourselves assess how far we must keep Minoan informed. Obviously, where
         we have great faith in our actions and believe that they will prove to be of benefit to our principal's interest, in the broad
         sense, then perhaps we will not inform Minoan at the beginning, or at all: it is the result that matters. Or we may inform
         it afterwards, in order to obtain approval, principally because we know that the board of directors of our principal ─ a company
         with many shareholders among the general public ─ which will either approve or reject our initiatives, is itself responsible
         to a large number of shareholders.
         
         
         104
            
          Furthermore, the applicant disputes the Commission's assertion that the documents referred to at the end of paragraph 137
         of the Decision prove that it was aware of the collusion. The applicant argues, on the contrary, that this was all information
         which it received after the event. 
         
         
         105
            
          Lastly, the applicant takes issue with the arguments set out in paragraph 138 of the Decision which led the Commission to
         draw the conclusion that, for the purposes of the Decision, ETA and Minoan should be regarded as forming a single legal and
         economic unit. Minoan complains that the Commission imputed to it all of ETA's actions and initiatives, without exception.
         
         
         
         106
            
          The applicant says that imputing behaviour in that way cannot be justified by reference to the case-law relating to the imputation
         of the conduct of subsidiary companies to their parent companies (Case 48/69  
         ICI v  
         Commission [1972] ECR 619, paragraphs 132 and 133, and Case 107/82  
         AEG v  
         Commission [1983] ECR 3151, paragraph 49) because that case-law concerns subsidiaries and not independent undertakings that have entered
         into cooperation agreements. Furthermore, the judgments cited by the Commission stipulate that conduct may not be imputed
         unless  
         the subsidiary, although having separate legal personality, does not decide independently upon its own conduct on the market,
         but carries out, in all material respects, the instructions given to it by the parent company. Lastly, in order to impute conduct in this way it is not sufficient if there is merely the possibility of influencing conduct,
         it must be proved that use has actually been made of that possibility (see  
         AEG V  
         Commission, cited above, paragraph 50 et seq., and  
         ICI v  
         Commission, cited above, paragraphs 135, 137, 138 and 141). 
         
         
         107
            
          The applicant says that none of those conditions has been satisfied in the present case because ETA is not a subsidiary of
         Minoan and Minoan therefore exerts no influence on ETA's managers and directors. The only connection between the two companies
         is one arising from the terms of the contracts, which clearly define the rights and obligations of both parties. Moreover,
         even if, under the contracts, it were possible for Minoan to exert a certain influence, Minoan has never made use of that
         possibility. Lastly, there is nothing in the documents before the Court that mentions Minoan having influenced, by positive
         action, ETA's conduct or that it gave ETA precise instructions, directions or mandates. On the contrary, the documents show
         that either Minoan was completely unaware of certain initiatives or that it was merely the passive recipient of incomplete
         information sent to it by ETA after the event. 
         
         
         108
            
          The applicant concludes that, given those facts, the Commission's position that  
         for the purposes of this Decision, ETA and Minoan are considered to form a single legal and economic unit, on the basis of which it justifies imputing all of ETA's actions and initiatives to Minoan, is arbitrary and vitiated by
         a clear want of reasoning and is unsupported by the documents before the Court or the case-law cited by the Commission. 
         
         
         109
            
          The Commission, for its part, does not question the fact that ETA is a separate legal entity, but argues that, according to
         case-law, the fact that a company is a separate legal entity does not mean that its conduct cannot be imputed to another company.
         The Commission maintains that, in Community competition law, an economic approach must be adopted, not a purely legal one,
         and that, applying an economic approach to the present case, it found that ETA's actions and initiatives were not undertaken
         in its own name and on its own behalf but in the name of and on behalf of Minoan. 
         
         
         110
            
          According to the Commission it is clear from the clauses of the various contracts governing relations between ETA and the
         applicant, and from what Mr Sfinias has said concerning that relationship, that ETA enjoyed very broad powers of representation
         and was authorised and instructed not only to organise the network of local agents and to promote the sale of tickets for
         foreign destinations but also, more generally, to manage the vessels on the international routes, to represent the applicant,
         to concern itself with all questions and actions relating to the vessels which it managed and to promote their use in the
         name of and on behalf of the applicant. The Commission emphasises that it is clear from the contracts that ETA was under a
         contractual obligation to operate under Minoan's instructions (Clause IV(g) of these management contracts) and, in regular
         collaboration with Minoan, to use its best endeavours to ensure Minoan's cooperation with other companies (if Minoan so requested)
         (Clause II(1) of the management contracts). 
         
         
         111
            
          The Commission adds that it is necessary, when considering this point, to draw a distinction between the contractual obligation
         of the agent, which requires it to act on behalf of its principal in accordance with the latter's instructions and under its
         control, and the actual ability of the principal to exert the necessary control over its agent. Thus, even if it transpires
         that the applicant was inexpert in shipping and, consequently, not in a position to give ETA certain specialised technical
         or economic instructions, that in no way detracts from the fact that ETA was fulfilling its function as the applicant's representative
         in accordance with its obligations under contract and law, in the context of the instructions and authorities given it by
         the applicant. 
         
         
         112
            
          The Commission refutes the applicant's allegation that ETA enjoyed a broad autonomy because it was under a contractual obligation
         not to represent any other shipping company operating on the same routes. The applicant's allegations do not indicate that
         ETA represented or acted as agent in the relevant market for any other shipping company at all. 
         
         
         113
            
          Moreover, the Commission observes that the contracts do not indicate ─ and the applicant does not submit ─ that ETA took on
         any financial risk whatsoever in connection with the provision of roll-on roll-off ferry services (for the transport of passengers
         and vehicles) between Greece and Italy or in connection with the performance of contracts in relation to such services concluded
         with third parties. Thus, in the present case, ETA should not be regarded as an independent trader but as an auxiliary body
         forming part of the Minoan business. Indeed, the contracts concluded between the applicant and ETA make it plain that, as
         exclusive general agent for the applicant, ETA undertook to manage Minoan's ships and, more generally, to concern itself with
         all questions relating to them, taking, as remuneration for its services, a percentage of ticket sales. 
         
         
         114
            
          Lastly, the Commission does not accept the applicant's assertion that ETA did indeed take action on its own initiative  
         outside the scope of ETA-Minoan contracts, but not on Minoan's behalf. The purpose of the contract between ETA and the applicant was, according to the Commission,
         to manage the applicant's ships on international routes and in that context the activities listed in the clauses of the management
         contract is not exhaustive. On the contrary, it is clear from the contracts between them that ETA was more generally required
         to concern itself with all questions and actions relating to the ships which it managed. Thus, any activity which helped to
         achieve that objective and to perform the contracts successfully did indeed fall within the ambit of the contractual relationship.
         
          Findings of the Court
          A ─ Preliminary remarks
         
         
         115
            
          The question whether ETA's actions may be imputed to the applicant is addressed in paragraphs 136 to 138 of the Decision.
         
         
         
         116
            
          In paragraph 136 the Commission sets out a series of arguments refuting Minoan's allegation that several of the activities
         of ETA referred to in the Decision cannot be imputed to it because they were ETA's own initiatives, fell outside the scope
         of the contracts between the two companies and were not approved by the applicant. 
         
         
         117
            
          In paragraph 138 of the Decision the Commission refutes the applicant's argument that ETA enjoyed such a degree of autonomy
         that its conduct cannot be imputed to its principal. It cites in a footnote the case-law of the Court of Justice relating
         to the imputation of subsidiaries' conduct to their parent companies (
         AEG v  
         Commission, cited above, paragraph 49, and  
         ICI v  
         Commission, cited above, paragraphs 132 and 133). The Commission goes on to conclude that  
         [f]or the purposes of this Decision, ETA and Minoan are considered to form a single legal and economic unit. 
         
         
         118
            
          In its application the applicant argues that the case-law on which the Commission relies is irrelevant because ETA is not
         a subsidiary of Minoan. In its pleadings the Commission merely indicates the rules which it regards as applicable to the case,
         citing, inter alia, the judgment in Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73  
         Suiker Unie and Others v  
         Commission [1975] ECR 1663 and the Commission's Notice on exclusive dealing contracts with commercial agents (JO 1962, 139, p. 2921).
         
         
         
         119
            
          The Court observes at the outset that, in this case, the Commission regards ETA as the applicant's  
         right hand man, inasmuch as it is the general manager of the applicant's affairs in the relevant markets. It maintains that the two companies
         belong not to the same legal entity but to the same economic entity. Whilst the terms used in paragraph 138 of the Decision
         are ambiguous and appear to confuse the two concepts, it is clear from a reading of paragraphs 136 to 139 as a whole and from
         the reference in the footnote to paragraph 138 to the case-law relating to the imputation of subsidiaries' conduct to their
         parent companies that the imputation of ETA's conduct to the applicant rests on the principles which govern the relationship
         between agent and principal and on the principal's liability for its agent's actions, interpreted with reference to the notion
         of a single economic entity, which is generally used where the conduct of undertakings is analysed from the point of view
         of competition law. The arguments which the Commission sets out in its pleadings confirm this. 
         
         
         120
            
          It is in light of those remarks that the Court must consider whether the Commission was right to find, in the Decision, that
         ETA's actions could be imputed to the applicant for the purposes of applying Article 85 of the Treaty. 
          B ─ Imputation of responsibility between agent and principal
         
         
         121
            
          It is clear from settled case-law that, 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, and Case T-234/95  
         DSG v  
         Commission  [2000] ECR II-2603, paragraph 124). 
         
         
         122
            
          It has also been held that a single economic unit is one that consists in a unitary organisation of personal, tangible and
         intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an
         infringement of the kind referred to in Article 85(1) of the Treaty. Where a group of companies constitutes one and the same
         undertaking the Commission is entitled to impute liability for an infringement committed by the undertaking and to impose
         a fine on the company responsible for the actions of the group in the context of the infringement (Case T-11/89  
         Shell v  
         Commission [1992] ECR II-757, paragraph 311). 
         
         
         123
            
          The Court has also emphasised that, for the purposes of applying the competition rules, formal separation of two companies
         resulting from their having distinct legal identity, is not decisive. The test is whether or not there is unity in their conduct
         on the market (see, to that effect,  
         ICI v  
         Commission, cited above, paragraph 140). 
         
         
         124
            
          Thus, it may be necessary to establish whether two companies that have distinct legal identities form, or fall within, one
         and the same undertaking or economic entity adopting the same course of conduct on the market. 
         
         
         125
            
          The case-law shows that this sort of situation arises not only in cases where the relationship between the companies in question
         is that of parent and subsidiary. It may also occur, in certain circumstances, in relationships between a company and its
         commercial representative or between a principal and his agent. In so far as application of Articles 85 and 86 of the Treaty
         is concerned, the question whether a principal and his agent or  
         commercial representative form a single economic entity, the agent being an auxiliary body forming part of the principal's undertaking, is an important
         one for the purposes of establishing whether given conduct falls within the scope of one or other of those provisions. Thus,
         it has been held that  
         if ... an agent works for the benefit of his principal he may in principle be treated as an auxiliary organ forming an integral
         part of the latter's undertaking, who must carry out his principal's instructions and thus, like a commercial employee, forms
         an economic unit with this undertaking (
         Suiker Unie and Others v  
         Commission, cited above, paragraph 480). 
         
         
         126
            
          In the case of companies having a vertical relationship, such as a principal and its agent or intermediary, two factors have
         been taken to be the main parameters for determining whether there is a single economic unit: first, whether the intermediary
         takes on any economic risk and, secondly, whether the services provided by the intermediary are exclusive. 
         
         
         127
            
          In so far as concerns the assumption of economic risk, the Court of Justice held, in paragraph 482 of its judgment in  
         Suiker Unie and Others v  
         Commission, cited above, that an agent may not be regarded as an auxiliary body forming part of its principal's business where the agreement
         entered into with the principal confers upon the agent or allows it to perform duties which from an economic point of view
         are approximately the same as those carried out by an independent dealer, because they provide for the said agent accepting
         the financial risks of selling or of the performance of the contracts entered into with third parties. 
         
         
         128
            
          In so far as concerns the question whether the services provided by the agent are exclusive, the Court has held that it tends
         not to suggest economic unity if, at the same time as it conducts business for the account of its principal, an agent undertakes,
         as an independent dealer, a very considerable amount of business for its own account on the market for the product or service
         in question (
         Suiker Unie and Others v  
         Commission, cited above, paragraph 544). 
         
         
         129
            
          It is clear from the documents before the Court that the criteria used in earlier cases to establish whether or not an agent
         and its principal form a single economic unit are satisfied in the present case because ETA did business on the market only
         in the name of and for the account of Minoan, it took on no financial risk in connection with that business and, lastly, the
         two companies were perceived by third parties and on the market as forming one and the same economic entity, namely Minoan.
          
         
         
         130
            
          That conclusion is reached, in particular, after consideration of the management contracts between Minoan and ETA. 
          C ─ The management contracts
         
         
         131
            
          The ship management contract concluded between Minoan and ETA on 24 June 1991, which reproduces the terms of previous contracts,
         sets out, in Clause II, the obligations assumed by the manager, ETA. Clause II reads as follows: In order to attain the objective mentioned above, and in performance of the present contract, the manager accepts the following
         obligations:
         
         (a)
          The manager shall maintain a broad network of associate offices throughout Greece (with the exception of Crete, where the
         agency work has been organised by the owner, albeit with accounting done at the manager's computer centre). The manager shall
         be entitled to appoint, under its own responsibility, agents both in Greece and abroad for the purpose of providing port services
         for the owner's ship in ports of necessity or refuge and ports of call and for all the work of establishing and issuing tickets
         and bills of lading and for providing port and other services during the carriage of passengers and vehicles. 
         
         
         (b)
          The manager shall make available exclusively to the owner and to no other the sales network at its disposal and undertakes
         to represent no other owner on the Ancona-Corfu-Cephalonia-Piraeus-Paros-Heraklion route. 
         
         
         (c)
          The manager shall be responsible for promptly receiving and paying over to the owner freight income of all kinds and from
         all agents both in Greece and abroad. Freight shall be paid within one month of completion of the journey for which it is
         charged. The net income from freight charges must be paid into the owner's bank account and in the owner's name. The owner alone shall
         be entitled to both freight income from abroad, in the relevant currency, and national freight income, in drachmas. In both cases, deposits shall be made to a bank nominated by the owner. 
         
         
         (d)
          The manager shall organise a special monitoring service and a general accounting service so as to ensure the smooth running
         of operations from issue and delivery of tickets, bills of lading, etc. to settlement of charges and shall fully protect the
         interests of the owner to which the manager shall each month send for the manager's review the totals for tickets and bills
         of lading. 
         
         
         (e)
          The manager shall operate a reservations service (CRO) both in Greece and in Ancona, Italy. The reservations service shall
         be available to the owner's customers, both passengers and vehicular traffic, whether trade or tourist-related, travelling
         to Greece and to destinations abroad. The manager shall also ensure the provision of all customs or port services and transit
         authorisations for Ancona-Corfu-Cephalonia-Piraeus-Paros-Heraklion. 
         
         
         (f)
          The manager shall organise office accommodation for the purposes of providing port agency services in the ports of Ancona,
         Corfu, Cephalonia, Piraeus and Paros in such a way as to be able to satisfy all current needs and to answer all functional
         requirements of the ship. 
         
         
         (g)
          The manager shall represent the owner in Greece and abroad vis-à-vis the port authorities and other State authorities with
         which the manager shall endeavour to maintain the best relations possible so that the ship's needs may consistently be met
         in normal fashion. 
         
         
         (h)
          The manager shall be responsible for making all necessary arrangements for the embarkation and disembarkation of passengers
         and vehicles and for the loading and unloading of goods, with payment of transport costs or for the use of the ship. 
         
         
         (i)
          The manager shall take in hand and shall respond effectively to all the ship's requirements in the ports of Ancona, Corfu,
         Cephalonia, Piraeus, and Paros. 
         
         
         (j)
          The manager shall also (on the same route or on a different route between Greece and Italy, at the owner's request) represent
         other ships belonging to the owner, on terms and conditions to be agreed in a separate contract. 
         
         
         (k)
          The manager shall, under its own responsibility, appoint agents (port agents and others) both in Greece and aborad. The manager
         shall be liable to the owner for ensuring that agents abroad and at home comply with their obligations in connection with
         the management of ship freight and shall bring to an end any action on the part of such agents where there are serious reasons
         therefor and where the owner so requests in writing. 
         
         
         (l)
          The manager shall, at the owner's request, make all necessary arrangements to obtain the collaboration of other companies,
         always acting in the owner's interests and protecting the owner's interests through regular collaboration with the owner.
         The manager shall, at the owner's expense, attend tourism and shipping conferences in the countries and at the ports of call
         and ports of necessity or refuge so as to keep up with general trends in transport and freight generation and shall periodically
         organise, abroad and in Greece, conferences and seminars for foreign general agents and other suitable parties under the supervision
         of the owner's management in order to bring up to date the general policy and operating plan so as to ensure the protection
         and promotion of Minoan Lines. It should be noted that freight income from offices in Crete or on the ship shall be posted to the owner's debit, with compensation
         on the periodic settling of accounts. 
         
         
         (m)
          The manager shall foster the generation of all sorts of freight in domestic transport or transport to overseas destinations.
         The manager shall take in hand all questions and operations concerning the ship which it manages and shall take charge of
         and liquidate payments and receipts concerning the ship both overseas and in Greece and shall check the accounts of agents
         in Greece and abroad and the movements on the ship's accounts for receipts in foreign currency.
         
         
         
         132
            
          First of all, it is clear from the content of Clause II of the management contract that the Commission was right to take the
         view that the contractual relationship between ETA and the applicant satisfied the condition of exclusive representation.
         Nor is there any dispute that ETA did not, in practice, represent any other company, at least not on the shipping routes with
         which the Decision is concerned. The fact that ETA concluded an agreement with Strintzis to represent that company's ships,
         in accordance with a partnership agreement which Strintzis and Minoan decided to implement, cannot undo that conclusion. Moreover,
         the applicant has not disputed the Commission's assertion that that collaboration was not put into practice. 
         
         
         133
            
          Secondly, Clause II of the management contract confirms the Commission's view that ETA acted for the account of the applicant
         without taking on any financial risk, its remuneration being fixed by reference to the number of tickets it sold. It is appropriate
         to point out in this connection that the applicant has not replied to the argument which the Commission makes in its defence
         that the contracts do not indicate that ETA took on any financial risk whatsoever in connection with the provision of roll-on
         roll-off ferry services between Greece and Italy or in connection with the performance of the contracts relating thereto which
         it concluded with third parties. 
         
         
         134
            
          Moreover, as the Commission emphasised in paragraph 137 of the Decision, all the documentary evidence shows that Mr Sfinias,
         the legal representative and manager of ETA, represented the applicant, signing all telexes and facsimiles sent to other companies
         in the applicant's name. It also shows that it was only when Mr Sfinias wrote to the applicant in his capacity as agent that
         he mentioned ETA. 
         
         
         135
            
          Similarly, when other companies replied to facsimile or telex messages sent by Mr Sfinias, they addressed their replies not
         to ETA but to  
         Minoan or  
         Minoan Athens, even though the documents which they sent to Minoan were in fact sent to Mr Sfinias at ETA's telex number. Furthermore,
         it is clear from the content of the telexes and facsimile letters that shipping companies in competition with the applicant
         believed that any statements Mr Sfinias made properly reflected the opinion of their competitor Minoan, a fact which is hardly
         surprising given that Mr Sfinias himself fostered that view, giving Minoan as the sender in letters he sent from ETA's offices.
         
         
         
         136
            
          That being so, the fact that ETA's initials were always shown on the telexes in question (either at the beginning or at the
         end of the document) is, contrary to the applicant's assertion, irrelevant for the purpose of identifying the real sender
         or recipient of the communication. Indeed, ETA's initials were printed automatically on the telexes to which the applicant
         refers by the telex machine and they merely showed who owned the telephone line. The fact that the other undertakings participating
         in the infringement regarded ETA's telex number as being Minoan's contact number clearly shows that, as far as those undertakings
         were concerned, ETA was no more than an organ of Minoan. That underscores the fact that the other shipping companies were
         convinced that ETA acted for the account of the applicant and with the applicant's authority, again supporting the conclusion
         that ETA conducted itself on the market as an auxiliary body within the applicant's undertaking. 
         
         
         137
            
          Lastly, that conclusion is confirmed by the fact that the applicant's reply of 20 November 1992 to the Commission's request
         for information was given on notepaper which bore, as Minoan's address, an address which subsequently transpired to be ETA's
         address and by the fact that the letter was signed by Mr Sfinias, beneath Minoan's logo, without any indication that he was
         not a director of Minoan, but its agent. By its actions the applicant confirmed that ETA was merely an auxiliary body; it
         instructed ETA to answer the requests for information that the Commission had sent it at the address which the Commission
         thought was Minoan's but which proved to be ETA's address. This is further confirmed by the fact that, in its letter of reply
         to the Commission, the applicant made no mention of the fact that another company was answering the requests for information
         or of the reasons why a company which was not the addressee of the Commission's letter was replying to it. The Court cannot
         accept the applicant's argument that it instructed Mr Sfinias to reply because of the technical nature of the information
         requested because that circumstance was not such as to prevent the applicant itself from replying. In any event, if the applicant
         had had difficulty understanding the questions asked by the Commission or assembling the information needed to reply, it could
         itself have answered the request for information after asking ETA to supply the necessary information. 
         
         
         138
            
          It follows from the foregoing that the Commission was entitled to take the view that ETA should be regarded as Minoan's  
         right-hand man and that the two companies formed a single economic entity for the purposes of applying competition law and imputing to the
         applicant the actions of ETA complained of in the Decision. 
         
         
         139
            
          To rebut that finding, the applicant cannot simply allege that it was unaware of the actions undertaken by ETA or that it
         had not given ETA authorisation or approval to embark upon unlawful cooperation. 
         
         
         140
            
          First of all, it is clear from the provisions of Clause II of the ship management contract that ETA's authority to represent
         the applicant was extensive. It was authorised to manage the applicant's ships on the international routes and was under an
         obligation to take in hand all questions concerning those ships, including most certainly the rates which the applicant should
         charge on the international routes. As the applicant itself emphasised at paragraph 40 of its application, as its general
         agent, ETA was responsible for all questions concerning the international routes and passengers. It follows that the subject-matter
         of the unlawful agreements to which the Decision refers, namely the fixing of international tariffs, falls cleanly within
         the scope of ETA's mandate and within the ambit of its contractual relationship with the applicant. 
         
         
         141
            
          The applicant refers to a letter sent by ETA on 14 September 1993, attempting to demonstrate that certain of ETA's actions
         did not fall within the scope of the contractual obligations existing between the two companies and submitting that those
         actions cannot be imputed to it. In the letter, ETA makes a distinction between services provided in the context of the contractual
         relationship and other services which fell outside that context. However, the important point is that the services in question
         were nevertheless provided for the applicant and in its name. Among them, it is important to note that the author of the letter
         includes within what he calls  
         services provided to the applicant  
         peace on tariffs, which it achieved with twenty or so companies and  
         the tariff which it has always managed to fix to Minoan's best advantage. It follows that the letter confirms that ETA acted in all cases on the applicant's behalf, even in matters concerning the
         illegal agreements on tariffs. 
         
         
         142
            
          Moreover, it should be observed that the arguments by which the applicant alleges that it was unaware of and did not approve
         ETA's actions are belied by the evidence in the file. The argument that the applicant was not informed of the collusion is
         belied by the telex of 21 May 1992, mentioned in paragraph 30 of the Decision, and by the telexes of 25 February 1992 and
         27 May 1992, which clearly show that the applicant was informed about the discussions on tariffs which ETA was holding with
         other companies. Even if, as the applicant argues, the telex of 25 February 1992 does not prove that it instructed ETA to
         begin tariff negotiations, it does make it clear that the applicant was aware of those negotiations. 
         
         
         143
            
          As far as the telex of 21 May 1992 is concerned, it is sufficient to recall the terms in which its author, ETA, wrote to the
         applicant: We would inform you that today a conference of representatives of the Patras-Ancona route shipping companies is to be convened
         to discuss the drafting of the new tariff for 1993.The principal points on the agenda are as follows:
         
         
         ─
             tariff for the Trieste line 
          tariff for the Trieste line 
         
         
         
         ─
             tariff for camping vehicles 
          tariff for camping vehicles 
         
         
         
         ─
             group discount 
          group discount 
         
         
         
         ─
             revision of catering prices 1992/1993 
          revision of catering prices 1992/1993 
         
         
         
         ─
             upgrading policy 
          upgrading policy 
         
         
         
         ─
             travel agents' and central agents' commissions. 
          travel agents' and central agents' commissions. 
          We shall keep you informed of developments.
         
         
         144
            
          Next, in the telex of 27 May 1992, ETA informed the applicant of how the meeting had gone, as follows: We inform you concerning the proposals that we put to the meeting of the four shipping companies and which, with minor differentiations
         for the Karageorgis and Strintzis companies, were accepted. Anek is reserving its position and will reply in 10 days time.
         
         
         ─
             General increase of 3% of the 1992 tariff in German marks. 
          General increase of 3% of the 1992 tariff in German marks. 
         
         
         
         ─
             The tariff in drachmas will be fixed on the basis of the current exchange rate for converting marks into drachmas; the tariffs
            in other European currencies will be fixed on the basis of the exchange rate of the drachma by comparison with those other
            currencies. 
          The tariff in drachmas will be fixed on the basis of the current exchange rate for converting marks into drachmas; the tariffs
         in other European currencies will be fixed on the basis of the exchange rate of the drachma by comparison with those other
         currencies. 
         
         
         
         ─
             Increase of 6% for the  
            deck tariff. 
          Increase of 6% for the  
         deck tariff. 
         
         
         
         ─
             Increase of 30% for category 4 vehicles and 50% for category 5 vehicles (these increases being of special relevance to Minoan
            for the ship Erotokritos). 
          Increase of 30% for category 4 vehicles and 50% for category 5 vehicles (these increases being of special relevance to Minoan
         for the ship Erotokritos). 
         
         
         
         ─
             Incorporation of port taxes, which are rising from DEM 15 to DEM 18 (to compensate payment of the commission), in the ticket
            price, so as to avoid the problems that arose in Igoumenitsa. 
          Incorporation of port taxes, which are rising from DEM 15 to DEM 18 (to compensate payment of the commission), in the ticket
         price, so as to avoid the problems that arose in Igoumenitsa. 
         
         
         
         ─
             Immediate adaptation of tariff for restaurants from 2 600 drachmas to 3 000 drachmas. 
          Immediate adaptation of tariff for restaurants from 2 600 drachmas to 3 000 drachmas. 
         
         
         
         ─
             Immediate increase of 5% in the tariff for goods vehicles on the Ancona route. 
          Immediate increase of 5% in the tariff for goods vehicles on the Ancona route. 
         
         
         
         ─
             Immediate increase of 20% in the tariff for goods vehicles on the Trieste route by comparison with the tariff applicable on
            the Ancona route (Karageorgis and Strintzis are restricting themselves to 15%). 
          Immediate increase of 20% in the tariff for goods vehicles on the Trieste route by comparison with the tariff applicable on
         the Ancona route (Karageorgis and Strintzis are restricting themselves to 15%). 
         
         
         
         ─
             Immediate withdrawal of the 20% discount on the passenger tariff announced by Anek for its ship  
            Kydon II. 
          Immediate withdrawal of the 20% discount on the passenger tariff announced by Anek for its ship  
         Kydon II. 
         
         
         
         ─
             Setting the passenger and tourist vehicle tariffs on the Trieste route for 1993 at 20% higher than the tariff for the Ancona
            route (Minoan's proposal, Karageorgis and Strintzis propose 15%). 
          Setting the passenger and tourist vehicle tariffs on the Trieste route for 1993 at 20% higher than the tariff for the Ancona
         route (Minoan's proposal, Karageorgis and Strintzis propose 15%). 
         
         
         
         ─
             Group discounts: same as in 1992. 
          Group discounts: same as in 1992. 
         
         
         
         ─
             High season: Italy to Greece: 26 June to 14 August 1993   Greece to Italy: 29 July to 9 September 1993. 
          High season: Italy to Greece: 26 June to 14 August 1993   Greece to Italy: 29 July to 9 September 1993. 
          We would ask you kindly to examine the positions adopted on your behalf and give your approval.We will keep you informed of all further developments as soon as we hear of them.
         
         
         145
            
          Those two documents point up the fact that ETA maintained a policy of keeping the applicant informed and that the applicant
         was therefore regularly apprised of the actions on ETA's part with which the Decision is concerned and which were clearly
         in the applicant's own interests. That is further confirmed, for example, by the telex of 24 November 1993 by which ETA informed
         the applicant that agreement had been reached on the tariff for goods vehicles. The telex states:  
         we are pleased to inform you that at today's meeting we achieved agreement. The Commission was entitled to infer from the terms of that telex that the applicant was aware that the meeting was to take
         place, since no explanation is given concerning the meeting and since the applicant opposed neither the convening of the meeting
         nor the conclusion of an agreement. Lastly, and moreover, it should be borne in mind that the applicant has acknowledged (in
         paragraph 67 of its application) that it was aware of a certain number, at least, of these contacts, albeit that it emphasises
         that it did not oppose them because it believed that they were made in the context of the Greek regulations and thus it saw
         nothing  
         particularly serious in them. 
         
         
         146
            
          As regards the applicant's argument that it did not approve ETA's actions, and that that precludes liability being imputed
         to it, suffice it to recall that, in the telex of 27 May 1992, the content of which is set out above, ETA asked the applicant
         to approve the actions taken on its behalf. The applicant cannot rely on the fact that the Decision does not state that it
         actually gave its approval because, in these circumstances, it is for the applicant to prove that it was opposed to the contacts
         or that it instructed ETA to withdraw from the agreement in issue. It has failed to do so. In fact, it is clear from the documents
         before the Court that it was only after the Commission had carried out its investigation that the applicant expressly warned
         ETA that any action that was not strictly legal and that might expose the applicant to the risk of sanctions should be avoided.
         
         
         
         147
            
          It is clear from the foregoing, first, that establishing the tariffs and conditions applicable on the applicant's ships on
         the international routes fell within the sphere of activities of its agent, ETA, secondly, that the applicant was regularly
         informed of the actions undertaken by its agent, including the contacts which it maintained with the other companies, for
         which it sought prior or  
         a posteriori authorisation and, lastly, that the applicant had both the power and the right to forbid its agent from undertaking certain
         actions, even if it exercised that right only after the Commission had conducted its investigation. 
          D ─ Conclusion
         
         
         148
            
          It is clear from an examination of the telexes exchanged between ETA and the applicant and between ETA and the other companies
         which participated in the infringement, from the applicant's replies to the Commission's requests for information, and from
         the other circumstances which the Court has considered, that ETA acted in the market vis-à-vis third parties, customers, sub-agents
         and competitors of the applicant as an organ of the applicant and that the two companies therefore formed one and the same
         economic unit or undertaking for the purposes of applying Article 85 of the Treaty. That being so, the Commission was entitled
         to impute to the applicant the conduct which was sanctioned in the Decision as contrary to Article 85 of the Treaty and in
         which ETA played an important part. 
         
         
         149
            
          That conclusion is not affected by the fact, to which the applicant points, that the two companies had diverging interests,
         as is evidenced by the telex which ETA sent the applicant on 26 May 1994. In that telex ETA complained that, by continually
         granting credits to its office in Heraklion, Minoan was undermining ETA's endeavours to conclude an agreement on the route
         to Italy. The pursuit by the two companies of different, even opposing interests in the matter of the commissions which ETA
         received on ticket sales is a matter concerning the internal relationship between the companies but does not alter the fact
         that, as far as the agreements here in issue are concerned, in its dealing with third parties ETA always acted in the name
         of and on behalf of the applicant. As the Commission has emphasised, differences regarding the amount of remuneration or various
         aspects of cooperation which arise within an economic entity do not call into question the existence of such an entity for
         the purpose of applying Article 85 of the Treaty. 
         
         
         150
            
          It follows from the foregoing that the applicant's complaints relating to incorrect application of Article 85(1) of the Treaty
         in that ETA's actions and initiatives were wrongly imputed to it are unfounded. 
         
         
         151
            
          The second plea must therefore be rejected in its entirety. 
          The third plea, raised in the alternative:  the facts of the case were wrongly construed as showing the existence of agreements
         prohibited by Article 85(1) of the Treaty
          A ─ First limb: incorrect application of Article 85(1) of the Treaty in that the undertakings did not have the requisite degree
         of autonomy, their conduct being dictated by legislation and directions from the Greek authorities
          Arguments of the parties
         
         
         152
            
          The applicant describes the very special legal and geopolitical circumstances in which the facts of the case occurred, which
         it regards as essential to an understanding of the conduct of the undertakings involved. 
         
         
         153
            
          First of all, the applicant emphasises the vital importance that Greece attaches to the shipping route between its own shores
         and Italy, that being the only direct link with the other countries of the European Union. It maintains that, for that reason,
         the transport services provided on the routes between Greece and Italy are, in the eyes of the Greek authorities, services
         of general public interest. Indeed, guaranteeing the permanent, regular operation of these lines was and still is a priority
         of the Greek Government, as is plain from the letter sent on 17 March 1995 to the Commission by the Deputy Permanent Representative
         of the Hellenic Republic to the European Communities. 
         
         
         154
            
          Secondly, the applicant explains the essential characteristics of Greek legislation relating to merchant shipping in Greece
         and of the policy pursued by the Greek Ministry of Merchant Shipping. 
         
         
         155
            
          The applicant observes that shipping in Greece is governed by the public law shipping code, the private law shipping code
         and by other specific regulations that contain provisions on unfair competition in the maritime transport sector, including
         in particular Law No 4195/1929. Because of those laws, maritime transport companies are governed by a legislative and regulatory
         framework that is very strict and includes a prohibition on all unfair competition. Lastly, the applicant points out that
         Law No 4195/1929 on unfair competition concerns not only the conduct of shipping companies on domestic routes, but also their
         conduct on long-distance routes to foreign destinations. 
         
         
         156
            
          Next, the applicant describes the principal characteristics of the policy pursued by the Ministry of Merchant Shipping which
         it regards as pertinent to an understanding of the conduct of the undertakings involved in this case. It maintains that the
         ministry adopts all necessary measures on the basis of the legislation just mentioned, availing itself fully of the powers
         conferred on it by that legislation. Such measures include (a) the grant of  
         operating licences for domestic routes, including licences for the domestic segments of international journeys; (b) ratification of uniform
         mandatory tariffs for domestic connections or for the domestic segments of international connections, such as the Patras-Igoumenitsa-Corfu
         leg, a measure which has strong repercussions on the tariffs applicable to the international segments of journeys; (c) annual
         approval of connections by ministerial decision: the decision falls within the discretion of the competent minister and, once
         granted, places shipping companies under an obligation to comply with the approved connections, which amounts to a periodic
         market-sharing exercise on the part of the State; (d) monitoring of the periods for which ships lie in dock so as to ensure
         that mandatory connections are facilitated; this may include prohibiting ships from lying in dock and if an authorised period
         of lying in dock is exceeded, fines may be imposed; (e) the imposition of mandatory negotiations between shipping companies
         so as to programme and coordinate connections before routing plans are approved by the Ministry of Merchant Shipping for the
         coming year, in the context of new negotiations between the ministry and the companies. 
         
         
         157
            
          As regards more specifically the routes between Greece and Italy, the vital importance to Greece of these transport links
         and the need to promote tourism in Greece have led all Greek governments to seek to ensure their smooth operation, on a regular
         and permanent basis, with services of as high a quality as possible and costs as low as possible. 
         
         
         158
            
          The applicant maintains that the legislative framework and the policy adopted by the Ministry of Merchant Shipping engendered
         a climate which not only favoured but essentially demanded contact, consultation and negotiation between shipping companies
         in relation to the fundamental parameters of commercial policy. The applicant describes how tariffs for domestic lines were
         in practice fixed by the Ministry of Merchant Shipping. 
         
         
         159
            
          The applicant maintains that, taking that practice into account, the companies were obliged to agree not only on connections
         but also on the tariffs to be applied on domestic routes, so that a proposal could be put to the minister with a view to obtaining
         his approval of the tariffs. That, according to the applicant, explains the contacts, consultations, exchanges of information
         and  
         agreements on tariffs and on any adjustments to those tariffs occasioned by inflation and by the constant fluctuations in the rate of
         exchange between drachmas and foreign currencies. Against that background, it is natural, almost unavoidable, that companies
         should exchange information, including information on the tariffs charged for entire journeys, which, in the case of the Patras-Igoumenitsa-Corfu-Italy
         line, include both the domestic leg (Patras-Igoumenitsa-Corfu) and the international leg of the journey, since the other parameters
         for setting domestic tariffs are also calculated on the basis not only of the domestic segment of the journey but of the entire
         journey, as is dictated by normal economic logic. 
         
         
         160
            
          The truth of these assertions is confirmed by the letter sent on 17 March 1995 by Mr Vassilakis, the Deputy Permanent Representative
         of the Hellenic Republic to the European Communities. That letter shows that the administrative fixing of tariffs for the
         domestic segments of routes is a factor which has an impact on the tariffs for the international segments of routes between
         Greece and Italy inasmuch as they act as indicative prices. According to the letter, a second factor is the instructions which
         the Ministry of Merchant Shipping gives to shipping companies to keep the tariffs applied to the international legs of routes
         low and to keep annual increases within the level of inflation. The third factor mentioned in the letter is the Greek legislation
         on unfair competition and, in particular, Law No 4195/1929, which prohibits the application on international routes of fares
         which would be derisory or disproportionate by comparison with passengers' requirements in terms of safety and comfort and
         any reduction in prices by comparison with the tariffs generally applied in the port, albeit at the same time allowing the
         Ministry of Merchant Shipping to intervene by imposing upper and lower levels of fares. Lastly, the applicant states that
         the Ministry of Merchant Shipping may at any time call upon shipping companies to prevent any possible price war so that it
         is not obliged to intervene and make use of its powers under Law No 4195/1929. 
         
         
         161
            
          More specifically, the applicant refers to the way in which the Decision describes (at paragraphs 98 to 108) the role played
         by the Greek public authorities. It criticises the Commission for merely setting out the arguments made by the companies on
         this point without examining their merits. The Decision contains a serious error in its assessment of the factual circumstances
         in that the Commission ought to have attributed special importance to the simultaneous concourse of all the relevant parameters,
         namely the fact that the transport services on the routes between Greece and Italy are provided in the public interest, the
         establishment of mandatory, uniform tariffs for domestic routes and the domestic part of international lines, the restriction
         of tariff increases on the international routes, the prohibition on unfair price competition laid down in Law No 4195/1929,
         the fixed costs attributable to reducing the time for which ships may lie in dock to two months, except in cases of  
         force majeure, the obligation to employ crews made up exclusively of Greek (or Community) nationals who are protected by the very strict
         Greek legislation on seafarers, and the obligation to reserve a minimum of space for goods vehicles transporting delicate
         produce such as fresh fruit and vegetables, which, especially in high season, results in the loss of the revenue that could
         be obtained if the space were given over to tourist vehicles, which bring more passengers and thus additional revenue (see
         paragraph 18(d) of the confidential memorandum of 6 October 1994 which Minoan sent to the European Commission). Had the Commission
         properly understood the letter from the Permanent Representation, it would have concluded that the concourse of those parameters,
         which were expressly set out in the letter, has a decisive effect on the autonomy of the Greek shipping companies when planning
         and forming their pricing policy. 
         
         
         162
            
          The applicant argues that, taking account of that background, Article 85(1) of the Treaty is not applicable to the present
         case because the  
         cumulative effect just described was the consequence of legislative and regulatory measures which, taken as a whole, very firmly limit the
         autonomy of the shipping companies, especially as regards the fixing of tariffs for the international parts of the routes
         between Greece and Italy. In this connection the applicant makes particular reference to the judgment in  
         Suiker Unie and Others v  
         Commission, cited above, and to the judgment of the Court of Justice in Case 311/85  
         Vlaamse Reisbureaus [1987] ECR 3801, in which the Court acknowledged that certain State regulations, and in particular provisions concerning
         unfair competition, may in fact restrict the business freedom of the undertaking subject to them. 
         
         
         163
            
          The applicant adds that another important consequence of the cumulative effect of the measures just mentioned is distortion
         of competition, because only certain companies operating lines between Greece and Italy are subject to the regulatory framework,
         namely those whose ships fly the Greek flag. They alone must hold the necessary operating licence which, as in Minoan's case,
         is granted subject to a series of very onerous obligations. The other shipping companies operating lines between Greece and
         Italy, on the other hand, are not subject to that regulatory framework and are therefore quite free to plan their business
         solely according to the profit principle. 
         
         
         164
            
          In the event that the Court should find that the applicant participated directly in the contacts and negotiations in issue,
         Minoan argues that the sole aim of its conduct was to comply with, or give the impression of complying with the existing regulatory
         framework in Greece, which is characterised by the imposition upon undertakings of positive obligations (such as the obligation
         to negotiate itineraries and domestic tariffs) and prohibitions (such as that on unfair price competition). The applicant
         observes that failure to comply with the legislatory and regulatory framework may be sanctioned by a series of State intervention
         measures, such as the imposition by the Ministry of Merchant Shipping of minimum and maximum prices, where there is unfair
         competition, and heavy penalties, whereas failure to comply with the  
         agreements with which the Decision is concerned could not lead to any sanction because the undertakings concerned did not agree on any
         mechanism of compulsion. 
         
         
         165
            
          Lastly, the applicant disputes that its attitude of complying with rules and regulations on unfair competition can be regarded
         as restrictive of competition within the meaning of Article 85(1) of the Treaty. 
         
         
         166
            
          In the circumstances, the applicant concludes that its conduct in this case does not fall within the scope of Article 85 of
         the Treaty and that, in any event, should certain ancillary aspects of its conduct be found to fall within the scope of that
         provision, any infringement of which it is guilty is not a grave one, given its legal and economic context and the cumulative
         effect of the various parameters which had a decisive influence on its conduct. 
         
         
         167
            
          The Commission, for its part, takes issue with the applicant's argument that the legislative and regulatory framework resulting
         from the policy of the Ministry of Merchant Shipping had the cumulative effect of restricting the autonomy of the undertakings
         referred to in the Decision. 
         
         
         168
            
          As regards, first of all, the legislative and regulatory framework governing the functioning of merchant shipping in Greece,
         the Commission disputes certain of the applicant's assertions regarding its extent and influence on international traffic
         and considers it necessary to make some important remarks. 
         
         
         169
            
          First, the Commission observes that the grant of an operating licence, the setting of mandatory tariffs, the annual approval
         of routes and the ministry's monitoring of periods for which ships lie in dock all relate to domestic lines, not international
         lines. 
         
         
         170
            
          Next, the Commission argues that neither the conclusion, between undertakings charged with anti-competitive conduct, of agreements
         to set tariffs on domestic lines nor their mutual consultation and exchange of confidential information on domestic lines
         are contemplated by any legal provision and that, in any event, even if the Greek Ministry of Merchant Shipping actually favoured
         that practice, it still related only to domestic lines. 
         
         
         171
            
          The Commission also raises the matter of the nature of the transport services offered on the lines between Greece and Italy,
         which are described as  
         services of public interest. It doubts that the letter of 17 March 1995 from the Deputy Permanent Representative of the Hellenic Republic to the European
         Communities can be viewed as proving that these services must be taken to be  
         services of public interest. In so far as, by making that assertion, the applicant claims that it should be treated as an undertaking  
         entrusted with the operation of services of general economic interest and, consequently, that it is subject to the rules on competition only to the extent that application of those rules does
         not obstruct the performance, in law or in fact, of the tasks entrusted to it, the Commission argues that, in the circumstances
         of the case, the conditions for applying this concept of  
         undertakings entrusted with the operation of services of general economic interest are not satisfied. The Commission says that the notion must be interpreted narrowly, given that it affects a provision which,
         in certain circumstances, permits derogation from the rules of the Treaty. 
         
         
         172
            
          The Commission also takes issue with the argument that the concourse of the parameters mentioned, which the applicant says
         influenced the tariffs applicable to the international part of routes between Greece and Italy, restricted the autonomy of
         the undertakings when planning and deciding their pricing policy. The Commission adds that, even if it were proved that the
         parameters had influenced the level at which the tariffs in question were fixed, any such influence would, in any event, have
         been merely indirect and partial and not such as to indicate that the undertakings were in this case deprived of a certain
         margin of autonomy in defining their tariff policy. The Commission refers, in this connection, to the case-law which states
         that Articles 85 and 86 may apply if it appears that the national legislation does not preclude undertakings from voluntarily
         engaging in conduct which prevents, restricts or distorts competition (Joined Cases C-359/95 P and C-379/95 P  
         Commission and France v  
         Ladbroke Racing [1997] ECR I-6265, paragraph 34) 
         
         
         173
            
          According to the Commission, it follows that, in accordance with the case-law, in order for conduct to escape application
         of Article 85(1) of the Treaty, the following conditions must be satisfied: (a) there must be a legal provision of a coercive
         nature, capable of affecting the free play of competition within the common market and in trade between the Member States,
         (b) the legal provision in question must have no connection with any conduct on the part of undertakings which falls within
         the scope of Article 85(1) of the Treaty and (c) the undertakings concerned must simply comply with the legal provision in
         question. 
         
         
         174
            
          However, the Commission takes the view that those conditions have not in fact been satisfied. 
         
         
         175
            
          The Commission submits that it is established that the undertakings with which the Decision is concerned, including the applicant,
         acted autonomously when deciding upon the options of their commercial policy and as a matter of practice entered into prohibited
         agreements with each other the purpose of which was to set the tariffs applicable on international lines, irrespective of
         whether or not they took account of the law and of the instructions of the Greek Ministry of Merchant Shipping. 
          Findings of the Court
         
         
         176
            
          It is clear from the case-law that Articles 85 and 86 of the EC Treaty apply only to anti-competitive conduct engaged in by
         undertakings on their own initiative (see, to that effect, Case 41/83  
         Italy v  
         Commission [1985] ECR 873, paragraphs 18 to 20, Case C-202/88  
         France v  
         Commission [1991] ECR I-1223, paragraph 55, Case C-18/88  
         GB-INNO-BM [1991] ECR I-5941, paragraph 20, and  
         Commission and France v  
         Ladbroke Racing, cited above, paragraph 33). If anti-competitive conduct is required of undertakings by national legislation or if the latter
         creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 85 and 86
         do not apply. In such a situation, the restriction on competition is not attributable, as those provisions implicitly require,
         to the autonomous conduct of the undertakings (
         Commission and France v  
         Ladbroke Racing, cited above, paragraph 33, Case T-228/97  
         Irish Sugar v  
         Commission  [1999] ECR II-2969, paragraph 130, and Case T-513/93  
         Consiglio Nazionale degli Spedizionieri Doganali v  
         Commission [2000] ECR II-1807, paragraph 58). 
         
         
         177
            
          Articles 85 and 86 may apply, however, if it is found that the national legislation does not preclude undertakings from engaging
         in autonomous conduct which prevents, restricts or distorts competition (Joined Cases 209/78 to 215/78 and 218/78  
         Van Landewyck and Others v  
         Commission [1980] ECR 3125, paragraph 126,  
         Commission and France v  
         Ladbroke Racing, cited above, paragraph 34,  
         Irish Sugar v  
         Commission, cited above, paragraph 130, and  
         Consiglio Nazionale degli Spedizionieri Doganali v  
         Commission, cited above, paragraph 59). 
         
         
         178
            
          Moreover, it should be recalled that the possibility of excluding specific anti-competitive conduct from the scope of Article
         85(1), on the ground that it was required of the undertakings in question by existing national legislation or that any possibility
         of competitive activity on their part has been eliminated, has been applied restrictively by the Community judicature (
         Van Landewyck and Others v  
         Commission, cited above, paragraphs 130 and 133,  
         Italy v  
         Commission, cited above, paragraph 19, Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82  
         Stichting Sigarettenindustrie and Others v  
         Commission [1985] ECR 3831, paragraphs 27 to 29, Case T-387/94  
         Asia Motor France and Others v  
         Commission [1996] ECR II-961, paragraphs 60 and 65, and  
         Consiglio Nazionale degli Spedizionieri Doganali v  
         Commission, cited above, paragraph 60). 
         
         
         179
            
          Thus, in the absence of any binding regulatory provision imposing anti-competitive conduct, the Commission is entitled to
         conclude that the operators in question enjoyed no autonomy only if it appears on the basis of objective, relevant and consistent
         evidence that that conduct was unilaterally imposed upon them by the national authorities through the exercise of irresistible
         pressures, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial losses (
         Asia Motor France and Others v  
         Commission, cited above, paragraph 65). 
         
         
         180
            
          In the present case, the applicant's argument consists in maintaining that the existing legislative and regulatory framework
         in Greece and the policy pursued by the Greek Ministry of Merchant Shipping decisively restricted the autonomy of the shipping
         companies, in particular in so far as concerns the fixing of tariffs applicable both on the domestic routes and on the international
         segments of routes between Greece and Italy. It follows, says the applicant, that the shipping companies found themselves
         obliged to contact each other, to consult and to negotiate in relation to the fundamental parameters of their commercial policy,
         such as their prices. 
         
         
         181
            
          The Court must therefore establish whether the conduct complained of in this case has its origin in the national legislation
         or in the practices of the Greek authorities or, on the other hand, to some extent at least, in the will of the applicant
         and of the other undertakings which participated in the agreements. The Court must therefore determine whether the legislative
         and regulatory framework and the policy of the Greek Ministry of Merchant Shipping had the cumulative effect of robbing the
         undertakings of their autonomy in adopting a tariff policy for the routes between Greece and Italy and thus of removing any
         possibility of competition between them. 
         
         
         182
            
          Merchant shipping in Greece is governed by the public law shipping code, the private law shipping code and by other specific
         regulations that contain provisions on unfair competition in the maritime transport sector, including in particular Law No
         4195/1929 on unfair competition and Law No 703/1977 on free competition, which entered into force on 1 January 1979 with a
         view to the Hellenic Republic's accession to the European Communities. 
         
         
         183
            
          In the exercise of its powers under the legislation just mentioned, the Ministry of Merchant Shipping adopts the following
         measures, inter alia: (a) the grant of  
         operating licences for domestic routes, including licences for the domestic segments of international journeys; (b) ratification of uniform
         mandatory tariffs for domestic routes or for the domestic segments of international routes, such as the Patras-Igoumenitsa-Corfu
         leg; (c) annual approval of connections; (d) monitoring of the periods for which ships lie in dock so as to ensure that mandatory
         connections are facilitated, and (e) the imposition of mandatory negotiations between shipping companies so as to programme
         and coordinate connections before routing plans are approved by the Ministry of Merchant Shipping for the coming year, in
         the context of new negotiations between the ministry and the shipping companies. 
         
         
         184
            
          The parties are agreed that the grant of operating licences, the setting of mandatory tariffs, the annual approval of routes
         and the Greek Ministry of Merchant Shipping's monitoring of periods for which ships lie in dock all relate to domestic, not
         international lines. Moreover, the Commission stated in its pleadings, without being contradicted on the point by the applicant,
         that the obligation to operate regular services, which attaches to the operating licence, solely affects ships flying the
         Greek flag which serve domestic routes only or which serve international routes, but in the case of the latter the obligation
         attaches only in respect of the domestic part of the journey. Similarly, the Commission has pointed up, again without being
         contradicted on the point, that the undertakings were free to choose to serve international lines with or without a domestic
         leg, or even purely domestic lines. Therefore, if an undertaking chose to serve international lines with no national segment
         there was no need for it to obtain an operating licence or to comply with the obligations attaching thereto. 
         
         
         185
            
          Similarly, for the purpose of fixing tariffs for domestic routes, the Ministry of Merchant Shipping asked shipping companies
         to submit overall proposals for each route, justifying the figures proposed by reference to operating costs, inflation, the
         profitability of lines, the frequency of journeys, and so on. Next, on the basis of the tariffs proposed, the justification
         for them and other more general criteria relating to overall government policy, the ministry would approve or amend the proposals
         after taking the opinion of the prices and revenue commission of the Greek finance ministry, such approval or amendment having
         in fact the effect of fixing the tariffs in question. The administrative fixing of tariffs for the domestic segments of corresponding
         connections would therefore have an impact on the tariffs for the international segments of routes between Greece and Italy
         inasmuch as they would serve as indicative prices. 
         
         
         186
            
          Greek legislation relating to unfair competition and, in particular, Article 2 of Law No 4195/1929, prohibits  
         in the case of routes to destinations abroad, any reduction in the tariffs for transporting passengers or goods which, charged
         for anti-competitive purposes, brings prices to levels that are derisory or disproportionate in comparison with what would
         be a reasonable and just charge for the services provided and with passenger's requirements in terms of security and comfort
         or to levels lower than those that are generally applied in the port in question. Article 4 of Law No 4195/1929 provides that: where freedom to fix tariffs for routes to destinations abroad leads to unfair competition, in addition to applying the foregoing
         provisions, the Ministry of Shipping (Department of Merchant Shipping) may, after taking the opinion of the council for merchant
         shipping, fix upper and lower limits for tariffs for transporting passengers and goods on Greek passenger vessels travelling
         between Greek ports and ports abroad. Compliance with those limits is mandatory and offenders will be subject to the penalties
         laid down in Article 3.
         
         
         187
            
          Moreover, it has been alleged that the Ministry of Merchant Shipping encouraged shipping companies to fix low rates for the
         international legs of routes, to keep annual increases within the level of inflation and to prevent any kind of price war
         between themselves, so that it not be obliged to intervene and make use of its powers under Law No 4195/1929. 
         
         
         188
            
          In its letter of 23 December 1994, mentioned in paragraph 101 of the Decision, which was sent in reply to the Commission's
         letter of 28 October 1994, the Ministry of Merchant Shipping stated: ...As far as the memorandum submitted by Strintzis Lines is concerned, I have no particular comments apart from clarifying that
         there is no involvement of the Ministry in the rate fixing policy which is followed by the companies on the international
         routes. Our involvement is strictly confined in the fixing of prices in domestic routes only.As I have already explained in more detail to you in our September meeting, Greece considers the sea corridor between the
         west Greek ports and the Italian east ports of paramount national as well as Community importance since it is the only main
         direct link to connect Greece with the rest of the European Union.It is therefore to our national and Community interests that the vessels engaged between Greece and Italy operate all year
         round, to facilitate our import-export trade as well as the passenger traffic. Furthermore, as you may well understand, it
         is to our national interest that the tariff rates applied must be competitive, but at the same time at a level where the transportation
         cost will be kept low, so as our import-export trade be kept competitive in the European markets.Now I come to the specific question you have put to me and I must say that I haven't seen anything in the Strintzis memorandum
         that could possibly guide me to that conclusion.I am sure that there is a misunderstanding. It is unthinkable and it is out of any question that the Ministry threatens to
         withdraw operating licences for domestic routes if companies fail to agree prices on international routes.As you will see from the relevant legislation I have attached herewith, when the Ministry accords an operating licence for
         the domestic trades, there are certain obligations (all year round services, frequency of sailings, etc.) which must be respected,
         otherwise the Ministry has the right to withdraw the licence. Furthermore, the tariffs are determined by a Ministerial Decision
         which is being issued periodically. This specific legislation affects the vessels of the respective companies with operating
         licences for the domestic part of the voyage between Greece and Italy (Patras-Igoumenitsa-Corfu) ...
         
         
         189
            
          Similarly, by letter of 17 March 1995 (referred to in paragraph 103 of the Decision), sent in reply to the Commission's letter
         of 13 January 1995, the Deputy Permanent Representative of the Hellenic Republic to the European Union, wrote: 
         
         1.
          The Greek Government attaches great importance to the smooth promotion of the sea route linking the ports between western
         Greece (principally Patras, Igoumenitsa and Corfu) and the Italian ports of Ancona, Bari, Brindisi and Trieste.
         ...Regular, uninterrupted sailings, throughout the year, between Greek and Italian ports, are a factor of decisive importance
         in enabling and ensuring the development of Greek import and export trade and thus, in a wider sense, Community trade as a
         whole.The policy of the Greek Government and, more specifically, of the Ministry of Merchant Shipping, which is responsible for
         defining national policy for maritime transport, is thus directed toward preserving the smooth operation of the route between
         Greece and Italy.The services offered on this route are regarded by us as services of public interest for our country. Given that, you will
         understand that it is a fundamental concern to the Greek Government to ensure the viability of this route and the prevention
         by all possible means of a price war which could hinder the smooth progression of import and export trade or the transport
         of vehicles and passengers. I would reiterate that our principal concern is to ensure operation of the route throughout the
         year and to avoid interruptions due to a price war.
         
         2.
          Given those facts and the positions adopted in consequence, the competent departments of the Greek Ministry of Merchant Shipping
         adopted decisions aimed at regulating in the most appropriate manner the normal transportation of vehicles during any given
         period of the year. Measures were therefore adopted to ensure that a certain number of places always be reserved for goods
         vehicles on passenger and vehicle ships and that the ships' vehicle deck never be entirely filled with tourist vehicles, especially
         during the summer months when there are more passengers. This has made it possible to maintain the movement of goods and to
         keep markets supplied.
          Care is also taken to keep very strictly to shipping route plans, so as to avoid delays, but also so that issues can be dealt
         with such as the presence of appropriate receiving facilities at ports of destination, which are needed to ensure the safety
         of and improve the service provided to the passengers and vehicles carried.
         
         3.
          As regards freight charges applied by the shipping companies, I would observe that the involvement of the Ministry of Merchant
         Shipping, as the authority responsible for regulating shipping, in cabotage freight, is limited to fixing prices solely for
         national cabotage operations. I would point out that, on international lines, even where the journey includes calls at Greek
         ports (for example Patras-Corfu-Ancona), whilst the part of the journey between the Greek ports is subject to an agreed price
         schedule, the prices on the journey between Greece and Italy are fixed freely by the companies operating that line. It is
         true, in such a case, that the total price of the ticket for a journey to Italy is influenced ─ indirectly and partially,
         of course ─ by the tariff fixed by the State for the transport within Greece.
          Moreover, as regards the tariffs for journeys abroad ─ which are freely fixed, as I said ─ the Ministry of Merchant Shipping
         encourages the shipping companies to keep them low and competitive and in any event to keep annual increases within the level
         of inflation. Our national interests in fact demand that our export trade is kept competitive and that our imports remain
         as cheap as possible. Other than that, the companies are free to fix their tariff rates according to their own commercial
         and economic criteria.That freedom is restricted by Greek legislation if it leads to unfair competition. More specifically, Law No 4195/1929 (a
         copy of which is attached) seeks to prevent unfair competition between shipping lines operating on routes between Greece and
         destinations abroad, inter alia, by prohibiting derisory tariff rates, the simultaneous departure from the same port of two
         or more ships serving the same line and failure to operate the published service (except in certain cases of  
         force majeure  ─ Article 3). Where there is unfair competition, the Ministry of Merchant Shipping may set upper and lower levels of fares
         (Article 4). Where it does so, it will informally encourage the companies to keep their tariff rates low and to prevent annual
         increases from exceeding the rate of inflation.
         
         4.
          Those observations seemed to me to be necessary in order to demonstrate that the line between Patras and Italy, which was
         created by private enterprise without any State aid, must continue to operate without interruption so that the ships which
         serve that line can continue to provide services of public interest, as we regard them to be for our country, for that sea
         link is the only direct link between our country and the other countries of the European Union.
         
         
         5.
          Lastly, I would point out that the legal framework governing the grant and withdrawal of operating licences which, I would
         stress, apply only to domestic routes within Greece, provides that, where a company fails to comply with the obligations set
         out in the operating licence granted it (regarding, for example, faultless operation of published lines, the annual period
         of lying in dock, maintaining the proper frequency of sailings), the Ministry of Merchant Shipping may withdraw the licence.
         
         
         
         190
            
          Whilst those two letters from the Greek authorities emphasise that the proper functioning and regularity of the maritime lines
         connecting Greece with Italy is a question of national importance, they confirm that neither the legislation applicable in
         Greece nor the policy implemented by the Greek authorities demands that agreements be concluded to fix the tariff rates applicable
         on international lines. 
         
         
         191
            
          Admittedly, the information given to the Commission by the Greek authorities makes it clear that one of the authorities' main
         concerns was to ensure regular service throughout the year on maritime lines to Italy and that they were also anxious about
         the adverse effects that might be caused by unfair competition, such as a price war. It is also clear that, in order to prevent
         unfair competition, the law grants the Ministry of Merchant Shipping power to set upper and lower limits for tariffs. However,
         the fact remains that no concertation on prices would be legitimate, even in a case such as this, because each undertaking
         would still remain free to decide its prices, autonomously, within the upper and lower limits set. Moreover, the information
         offered in the letters just considered confirms that prices on maritime routes between Greece and Italy are set freely by
         the companies operating those lines. Furthermore, it is also indisputably clear from what is said in those letters that, in
         order to ensure that Greek exports remain competitive and that the price of imports to Greece remains reasonable, the Ministry
         of Merchant Shipping encouraged shipping companies not to increase their prices in concert but merely to keep their prices
         low and competitive, so as to avoid, in any event, annual increases greater than the rate of inflation. 
         
         
         192
            
          It follows that each of the shipping companies serving those lines enjoyed acknowledged autonomy in setting its pricing policy
         and was thus at all times subject to the rules on competition. The letters point up the fact that, as far as the Greek authorities
         are concerned, full application of the competition rules and thus also of the prohibition of price agreements under Article
         85(1) of the Treaty did not prevent the shipping companies, either in fact or in law, from fulfilling the task given them
         by the Greek Government. Therefore, the fact that, in its letter of 17 March 1995, the Permanent Representation of the Hellenic
         Republic describes the operation of lines between Greece and Italy as being  
         services of public interest is irrelevant for the purposes of applying Article 85 of the Treaty. For precisely the same reasons it is unnecessary to
         consider whether the Commission was right to dispute the argument that the undertakings with which the Decision is concerned
         must be viewed under Community law as  
         undertakings entrusted with the operation of services of general economic interest, within the meaning of Article 90(2) of the EC Treaty (now Article 86(2) EC). 
         
         
         193
            
          The information contained in the letters mentioned confirms that the applicant cannot succeed in its allegation that the cumulative
         effect of the parameters influenced the tariff rates applicable to the international part of lines between Greece and Italy
         and had the effect of restricting the autonomy of the undertakings in planning and deciding their pricing policy. It confirms
         that the Greek Ministry of Merchant Shipping intervened in the tariff-fixing policy applied by the shipping companies on international
         lines only to the extent of encouraging them to keep their tariffs low and to keep annual increases within the level of inflation.
         Given that attitude on the part of the Greek authorities, there remained the clear possibility of competition on the market
         that could be prevented, restricted or distorted by the autonomous conduct of undertakings. 
         
         
         194
            
          It must be added that Law No 4195/1929 contains no prohibition on reducing the tariffs applicable on international lines.
         Whilst that law, whose purpose is to preclude any unfair competition between shipping companies operating lines between Greek
         and foreign ports, specifically prohibits the reduction of tariffs to derisory levels, the simultaneous departure from the
         same port of two or more ships serving the same line and failure to operate the published service, except in certain cases
         of  
         force majeure  (Article 2), it does not rob the undertakings impugned by the Commission of all  
         margin of autonomy. On the contrary, it confirms that each undertaking is, in principle, free to determine its tariff policy as it sees fit,
         provided that it does not enter into unfair competition. The prohibition on unfair competition can in no way be interpreted
         as requiring the undertakings in question to conclude agreements to fix the tariffs applicable on international lines. In
         the absence of any binding regulatory provision imposing anti-competitive conduct, the applicant can rely on a lack of autonomy
         only if it can produce objective, relevant and consistent evidence that that conduct was unilaterally imposed upon it by the
         Greek authorities through the exercise of irresistible pressure, such as, for example, the threat to adopt State measures
         likely to cause it to sustain substantial losses. 
         
         
         195
            
          Now, the letters from the Greek authorities show that those authorities neither adopted measures nor employed any practice
         that could be deemed  
         irresistible pressure on the shipping companies compelling them to conclude tariff agreements. The applicant cannot therefore claim that the undertakings
         in question were deprived of any margin of autonomy in defining their tariff policy or that the anti-competitive conduct of
         which the Commission complains was imposed on them by existing Greek legislation or by the policy implemented by the Greek
         authorities. 
         
         
         196
            
          As regards the Ministry of Merchant Shipping's encouraging shipping companies to fix low rates on international routes and
         not to exceed the rate of inflation when applying annual increases, whilst the ministry's letter refers to informal  
         encouragement, there is no suggestion in it of  
         unilaterally imposing such action on the companies. It was therefore open to the companies to resist the informal encouragement without thereby
         exposing themselves to any threat that State measures might be adopted. Furthermore, the Greek ministry categorically denied
         that it could threaten to withdraw operating licences for domestic routes should the companies fail to reach agreement on
         the tariffs applicable on international routes, and that is clear from the letter of 23 December 1994. 
         
         
         197
            
          In so far as concerns the power conferred on the Greek Ministry of Merchant Shipping by Law No 4195/1929 to set upper and
         lower price limits in the event of unfair competition, so as to prevent any price war, it must be observed that the law in
         question does not deprive the impugned undertakings of  
         all margin of autonomy. It gives them a certain liberty to determine their tariff policy provided that they do not engage in unfair competition.
         Indeed, according to Article 4 of Law No 4195/1929, the Ministry of Merchant Shipping has no right to set upper or lower limits
         for the tariffs in question except where the freedom of the undertakings autonomously to fix the tariffs for routes to destinations
         abroad results in acts of unfair competition. 
         
         
         198
            
          In light of all the foregoing the first limb of this plea must be rejected as unfounded. 
          B ─ Second limb: the contacts between the undertakings impugned by the Commission were wrongly construed as agreements prohibited
         by Article 85(1) of the Treaty
          Arguments of the parties
         
         
         199
            
          The applicant disputes the Commission's legal characterisation of the contacts which the undertakings in question maintained.
         It argues that, whilst the authors of the documents to which the Commission alludes frequently use the expressions  
         agreement,  
         agreed and  
         we are agreed, there were no  
         agreements in the strict sense of the word or within the meaning of Article 85(1) of the Treaty, for in no case were mandatory obligations
         or enforcement mechanisms created. These supposed  
         agreements were instead intended to confirm the existence of a general code of conduct which, according to the applicant, was in any
         case imposed on the undertakings by the shipping regulations and by the policy of the Ministry of Merchant Shipping. It was
         for each shipping company to decide whether or not to adhere to that code of conduct, in accordance with the choices it made
         and its general view of the consequences of any departure from it. Any sanction for such departure could only emanate from
         the competent State authorities and so, according to the applicant, the danger was that the other companies would inform the
         competent authorities of any departure from the code of conduct or that they too would depart from it, which would probably
         have brought about a price war, with prices falling in a vicious circle, and the intervention of the surveillance authority,
         namely the Ministry of Merchant Shipping, which is traditionally opposed to such practices. 
         
         
         200
            
          The applicant points to the purpose and scope of the  
         agreements just mentioned, emphasising that they related only to the published tariffs for international lines. In particular, they
         were not concerned with organisation of the commercial network, the commissions payable to agents and travel agencies, the
         credit policy of the companies with regard to their customers, advertising policy, the price of services and goods offered
         on ships (food, drink, duty free shopping, etc.), upgrade policy, ad hoc discounts on published tariffs (which it is difficult
         for other companies and the Ministry of Merchant Shipping to learn of) and discounts on tariffs for goods vehicles (which
         are not published). Lastly, the applicant maintains that these essential factors undermined still further the  
         agreements on tariffs, the scope of which was in any case limited. 
         
         
         201
            
          The applicant adds that the  
         agreements with which the Decision is concerned were not implemented in practice. It maintains that, as far as possible, it endeavoured
         to make use of the little freedom which it still had in fixing rates and, to that end, applied, especially on lines between
         Greece and Italy, significant discounts on published rates where economic circumstances permitted and pursuant to specific
         agreements concluded with its customers, either directly or indirectly via its agents, albeit avoiding any advertising so
         as not to run the risk of complaints from its competitors or direct or indirect pressure from the surveillance authority,
         the Ministry of Merchant Shipping. 
         
         
         202
            
          The applicant refers, more specifically, to the various  
         infringements recorded in the Decision, year by year, and puts forward a series of points to show that the Commission's assessment of the
         facts was wrong inasmuch as it took the view that they fell within the scope of Article 85(1) of the Treaty. 
         
         
         203
            
          The Commission submits that the evidence which it set out in detail in paragraphs 8 to 42 of the Decision shows that the conduct
         of the undertakings which it impugned, including the applicant, does indeed constitute an  
         agreement between undertakings within the meaning of Article 85(1) of the Treaty (see paragraphs 97 to 174 of the Decision). 
          Findings of the Court
          A ─ General remarks
         
         
         204
            
          First of all, as the Court held after considering the previous plea, the applicant cannot, in the circumstances of this case,
         rely on the legislative and regulatory framework governing Greek merchant shipping as a means of avoiding application of Article 85(1)
         of the Treaty to the conduct with which the Decision is concerned. 
         
         
         205
            
          It is therefore necessary to consider whether the Commission was right to classify the conduct referred to in the Decision
         as constituting an agreement prohibited by Article 85(1). 
         
         
         206
            
          The evidence of the existence and scope of agreements between the undertakings impugned relating to international tariffs
         is set out in detail in paragraphs 8 to 42 of the Decision. It is appropriate to observe, first of all, that it is clear from
         paragraph 169 of the Decision that the applicant acknowledged the contacts, discussions and meetings listed in paragraphs
         8 to 42. Like the other undertakings impugned, it did not dispute the factual basis of the Commission's statement of objections
         during the administrative procedure, a consideration which justified a substantial reduction in the fine imposed. 
         
         
         207
            
          Next, the Court holds that the classification of these actions as agreements within the meaning of Article 85(1) of the Treaty
         cannot be called into question by the allegation that the agreements created no mandatory obligations or enforcement mechanisms
         for the purposes of their application. 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 T-347/94  
         Mayr-Melnhof v  
         Commission [1998] ECR II-1751, paragraph 65 and the case-law cited). As the Commission points out, even a gentlemen's agreement constitutes
         an agreement within the meaning of Article 85(1) of the Treaty (Case T-141/89  
         Tréfileurope v  
         Commission [1995] ECR II-791, paragraphs 95 and 96 and the case-law cited). 
         
         
         208
            
          The same applies to the applicant's argument that the agreements were not implemented in practice. The fact that an agreement
         to restrict competition is not implemented or followed is, according to consistent case-law, not sufficient to place it outside
         the scope of the prohibition laid down in Article 85(1) of the Treaty. It is participation in negotiations aimed at restricting
         competition that constitutes an infringement, even if the agreement is not performed (see, to that effect,  
         Mayr-Melnhof v  
         Commission, cited above, paragraph 135). Moreover, in deciding the amount of the fine, the Commission acknowledged that the infringement
         had little real impact on the market and accepted the submission of the undertakings concerned that they did not apply in
         full all the specific price agreements (paragraph 148 of the Decision). Thus, the argument which the applicant puts forward
         in an attempt to show that the agreements did not fall within the scope of Article 85(1) of the Treaty, namely that they were
         not in fact implemented, must be rejected, without it being necessary to consider whether, as the Commission maintains, they
         were in fact largely implemented by the applicant. 
         
         
         209
            
          Lastly, the fact that the shipping companies in question competed to a certain extent in matters such as discounts, credit
         policy, the services provided on-board ships and so on, is irrelevant to the question whether Article 85(1) of the Treaty
         is applicable to the facts of the case because it is plain that any such competition was influenced by, and thus limited by,
         the agreement on published tariffs or on the basis on which reductions and discounts might be granted. That being so, the
         fact that the companies impugned by the Commission competed in matters other than tariffs is relevant only to deciding the
         amount of the fine. Now, as the Commission has emphasised, it is clear from paragraph 148 and 162 of the Decision that it
         took that circumstance into account when evaluating the gravity of the infringement and assessing the mitigating circumstances
         and reducing the fine. 
         
         
         210
            
          Having regard to the foregoing, this limb of the plea must also be rejected. 
         
         
         211
            
          The Court's conclusion is not undermined by the numerous factors to which the applicant alludes in an attempt to explain or
         alter the way in which, according to it, the conduct referred to in the Decision should be understood and interpreted. Whilst,
         in raising these factors, the applicant does not expressly dispute the fact that the conduct occurred, it is nevertheless
         appropriate to consider them in so far as they are intended to cast doubt upon the characterisation of the facts as an unlawful
         agreement and, thus, also upon the evidence against the applicant gathered by the Commission. 
         
         
         212
            
          Examining these factors calls for a thorough analysis of the evidence set out in the Decision (in paragraphs 8 to 42). 
          B ─ The evidence of the agreement 
         
         
         213
            
          In the operative part of the Decision the Commission sanctioned two infringements: first, the applicant, Anek, Karageorgis,
         Marlines and Strintzis were found to have infringed Article 85(1) of the Treaty by agreeing prices to be applied to roll-on
         roll-off ferry services between Patras and Ancona; secondly, the applicant, Anek, Karageorgis, Adriatica, Ventouris and Strintzis
         were found to have infringed Article 85(1) of the Treaty by agreeing on the levels of fares for trucks to be applied on the
         Patras to Bari and Brindisi routes. 
         
         
         214
            
          In this case it is clear from the wording of the passages of the documents placed before the Court and set out in the Decision
         that, from at least July 1987 onwards, there existed between the shipping companies serving the Patras to Ancona line a concurrence
         of wills regarding implementation of a common pricing policy for the various services provided. 
         
         
         215
            
          The documents show that the companies undertook direct, regular negotiations in order to fix passenger and freight rates.
         These negotiations took place each year with a view to setting the tariff levels for the following year and periodically for
         the purpose of responding to problems arising during the course of the year. 
         
         
         216
            
          A concurrence of wills of this kind constitutes an agreement within the meaning of Article 85(1) of the Treaty, as interpreted
         by the Community Courts, since, in order for there to be an agreement within the meaning of that provision, it is sufficient
         for the undertakings in question to have expressed their joint intention to conduct themselves in the market in a particular
         way (Case 41/69  
         Chemiefarma v  
         Commission [1970] ECR 661, paragraph 112,  
         Van Landewyck and Others v  
         Commission, cited above, paragraph 86, Case C-49/92 P  
         Commission v  
         Anic Partecipazioni [1999] ECR I-4125, paragraph 130,  
         Tréfileurope v  
         Commission, cited above, paragraph 95, and Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95,
         T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95  
         Cimenteries CBR and Others v  
         Commission [2000] ECR II-491, paragraph 958). 
         
         
         217
            
          It is appropriate in this connection to consider the literal meaning of the following passages of some of the documents contained
         in the file. 
         
         
         218
            
          In a telex which it sent on 15 March 1989 to Anek, the applicant wrote: We regret that your refusal fully to accept the proposals we put forward in our earlier [message] at least for the time being
         prevents the conclusion of a broader agreement which would be extremely advantageous to our companies ... We refer of course
         to your refusal of our proposals concerning the definition of a joint pricing policy for the Patras-Ancona route; and we ask
         you to understand the positions we set out below, which are intended as a response to your view that you cannot accept the
         1989 tariff in force for goods vehicles and that the pricing policy for the forthcoming year 1990 cannot be defined immediately....In the last three months on the particular route two readjustments of the fares for goods vehicles have been agreed jointly
         by all the shipowners on the Patras-Ancona route, amounting to a total of 40%, and have certainly caused no agitation or difficulties
         with our driver colleagues....The pricing policy for 1988, as mutually established with the other interested parties, was decided on 18 July 1987. This
         has in fact been the usual practice.
         
         
         219
            
          In a telex which it sent to Anek on 22 October 1991, the applicant wrote: From the wording of the price list annexed to the circular to which you refer we note that you want to apply to the Patras-Trieste
         route the same fare that we have all agreed for the Patras-Ancona route.You will realise that the obscurity in the wording causes us great concern, because it raises the prospect of a collapse of
         the equilibrium in tariffs which we have succeeded, with considerable difficulty, in establishing for all the Italian ports.Let us remind you that by a joint effort ─ to which you yourselves contributed ─ we reorganised the tariffs as best we could
         and established differentials on the basis of the distances in nautical miles to the ports of Brindisi, Bari and Ancona.We would add that, even at the time of the Bulgarian vessels  
         Trapezitsa and  
         Tsarevits (which were represented by your agent Mr Kallitsis) similar price regulation was introduced by common accord, including for
         the port of Trieste.We would accordingly entreat you to defend ─ as you ought to do ─ the agreement between the 11 companies and the 36 vessels
         on the Greece-Italy crossing because given the intense differences which are smouldering away under the surface the existing
         agreement could well collapse.We would suggest to you that the tariff for the Patras-Trieste trip should be put at 20% above that for the Patras-Ancona
         route (as indeed was the case in the past), so as to harmonise fully with the differentials between Ancona and the more southerly
         ports.Our companies are obliged to notify you that if you insist on applying the same price from Trieste and Ancona for Greece,
         our agreement for a common price policy concerning the Ancona route will cease and each company will determine its own price
         policy.
         
         
         220
            
          Lastly, in a telex sent on 5 September 1990 to Anek, Karageorgis and Minoan, Strintzis stated that one of the conditions for
         applying the proposed increase was  
         a proportional increase in fares for the Bari and Brindisi routes. It went on to say  
         nevertheless, it is necessary to reach an agreement in principle between our four companies. 
         
         
         221
            
          Those documents, which are corroborated by all the other documents mentioned in the Decision, clearly show the existence of
         an agreement on prices for the route between Patras and Ancona. 
         
         
         222
            
          Equally, the Commission was also in possession of documents proving the existence of similar conduct, also prohibited by Article
         85(1) of the Treaty, in relation to the prices applicable on the routes between Patras and Bari and between Patras and Brindisi.
         These include a telex dated 8 December 1989 which contains a list of prices to be applied on the various routes from 10 December
         1989 onwards and a telex of 24 November 1993 which refers to a meeting held that day and attended by the companies operating
         the various routes. The Commission's finding is also confirmed by other documents which refer to events occurring between
         those dates: a facsimile letter of 30 October 1990, a telex of 22 October 1991, a document dated 25 February 1992 and sent
         by ETA to Minoan, and a telex of 7 January 1993. 
         
         
         223
            
          It follows that the Commission was entitled to conclude that it had sufficient evidence to prove the two infringements which
         it sanctioned: the agreements on the prices of the services applicable to roll-on roll-off ferries between Patras and Ancona
         and an agreement on the prices to be applied on the routes from Patras to Bari and Brindisi for the transport of goods vehicles.
         
         
         
         224
            
          Not only do these documents have probative force, but also their existence and authenticity have not been disputed by the
         undertakings impugned. In fact, Anek and Strintzis, at least, seem to have expressly admitted the substantive truth of the
         facts. The other companies do not appear to call them into question. (See paragraph 169 of the Decision.) 
         
         
         225
            
          It is appropriate to consider the evidence of the applicant's involvement in these infringements. 
          C ─ The Commission's evidence against the applicant
          1. The evidence relating to 1987, 1988 and 1989 (paragraphs 9 to 12 of the Decision)
         
         226
            
          According to the applicant, the position which the companies adopted vis-à-vis Anek must be viewed in light of the fact that,
         under the existing regime, any direct and openly avowed practice of applying both published prices and significantly lower
         actual prices for goods vehicles would have been contrary to both Greek legislation (in particular, Article 2 of Law No 4195/1929)
         and the stated policy of the Ministry of Merchant Shipping, which was clearly opposed to any price war between the shipping
         companies. The applicant observes that Anek's conduct may be explained by the fact that this was the first time that it had
         operated ships on international lines and it was not sufficiently aware of the incidence of the applicable Greek legislation
         or of the impact of the policy of the Ministry of Merchant Shipping on the conduct of the Greek companies operating on the
         international segments of routes between Greece and Italy. 
         
         
         227
            
          As regards the readjustments of the fares referred to in paragraph 11 of the Decision, which took place in the space of three
         months on the Patras-Ancona line and totalled 40%, the applicant maintains that the statement in question was intended solely
         to impress Anek and in no way corresponded to reality. It adds that the readjustments were, in any event, not prompted by
         any profit motive, but by other factors, such as inflation and the increase in fuel prices attributable largely to a rise
         in the United States dollar and a fall in the drachma by comparison with other currencies, and in particular the Italian lira.
         
         
         
         228
            
          The Court considers it clear from the description of the facts given in paragraphs 9 to 12 of the Decision, which the applicant
         does not dispute, and especially from the evidence referred to in those paragraphs, that the applicant attempted to persuade
         Anek, by a telex sent on 15 March 1989, to take part in the agreement concluded on 18 July 1987 and that, faced with Anek's
         hesitation, the other companies (namely the applicant, Karageorgis, Marlines and Strintzis) decided to charge collectively,
         from 26 June 1989 onwards, the same goods vehicle tariffs as those applied by Anek. The telex of 22 June 1989 shows that the
         applicant informed Anek of this decision. 
         
         
         229
            
          The Commission was therefore entitled to take the content of those telexes as proof not only the existence of an agreement
         but also that the applicant had played a leading role in that agreement. The applicant cannot, therefore, claim that it had
         wanted to inform Anek of the incidence of the applicable Greek legislation and of the impact of the policy of the Ministry
         of Merchant Shipping on the conduct of the Greek companies operating on the international segments of routes between Greece
         and Italy. Nor can it claim that such an agreement was necessary in order to prevent the companies from entering into unfair
         competition or applying prices that are derisory or disproportionate and contrary to the policy of the Ministry of Merchant
         Shipping, which was opposed to any price war between the companies. Proof that there was no question of a price war is to
         be found in the applicant's telex of 15 March 1989 to Anek which stated that, over the course of the previous three months,
         the other companies operating the route between Patras and Ancona had agreed on two readjustments totalling 40%, without that
         having created any problems with road hauliers. 2. The evidence relating to 1990 (paragraphs 13 to 20 of the Decision)
         
         
         230
            
          The applicant maintains that the negotiations and  
         agreements to which paragraphs 13 to 20 of the Decision refer are also attributable to the tactic adopted by each company of appearing
         to comply with the national rules so as to avoid provoking the intervention of the Ministry of Merchant Shipping. The applicant
         also observes that the tariffs for passengers and tourist vehicles are in any event published and adds that the reference
         tariffs for goods vehicles, which each company uses for the purpose of applying discounts and which are not published, could
         easily be ascertained by competitors thanks to transparency in the market. 
         
         
         231
            
          As regards paragraph 16 of the Decision, the applicant asserts that Strintzis's facsimile of 8 December 1989 was sent after
         the mandatory negotiations between the companies had taken place towards the end of the calendar year. The applicant emphasises
         that the tariffs set out in the tables were purely for the domestic part of the journeys and that the Ministry of Merchant
         Shipping fixed these prices administratively at a level of up to 90% of the total price, as in the case of journeys to Bari
         and Brindisi. As far as the applicant is concerned, the signatures of the representatives of the companies in question must
         be not be taken as constituting a formal written  
         agreement. They may be explained by the fact that the documents in question, which state the variances which the companies regarded
         as reasonable between the rates for the line to Ancona and those for lines to Bari and Brindisi, were brought to the attention
         of Ventouris, which operated on the southern routes. The signatures merely mean that the companies accepted the principle
         that there should be a reasonable relationship between the distance of the journeys in nautical miles and the tariffs applied.
         The mention of an  
         ideal price for each category of goods vehicle, both for the line to Ancona and for those to Bari and Brindisi, was regarded as
         being of use in providing a more or less reliable basis for calculating the different tariffs for each category of goods vehicle
         to be applied according to the distance of the journey in nautical miles, so as to avoid any unfair competition which, as
         has been stated, was prohibited by current legislation and was contrary to the policy of the Ministry of Merchant Shipping.
         In other words, setting  
         ideal prices for the various categories of goods vehicles was an attempt to set up a model for calculating the different tariffs
         to be applied according to the distance of the journey in nautical miles, not to apply a definitive price for each line and
         for each category of goods vehicle. That explains why Mr Sfinias, ETA's legal representative, signed the two tariffs, despite
         the fact that the applicant did not operate ships on routes to Bari or Brindisi and why the two tariffs were countersigned
         by Ventouris, which operated exclusively on those routes. 
         
         
         232
            
          The applicant regards it as mistaken to say that the telex of 11 April 1990 sent by Anek to Karageorgis, Minoan and Strintzis
          
         shows again the common price policy in force in 1990 (see paragraph 17 of the Decision). The telex merely refers to an  
         agreement on certain precise parameters of the pricing policy which could in any event be easily ascertained by competitors, namely
          
         the passenger, passenger cars and truck vehicles fares, and does not concern either agents' commissions or group discounts. The wording of the telex does not imply that any common
         tariff policy was  
         in force, as the Decision states. 
         
         
         233
            
          As regards paragraphs 18 to 21 of the Decision, which concern the negotiations for a common increase in the tariffs for goods
         vehicles, the applicant observes that, as Strintzis's telex of 5 September 1990 and Karageorgis's telex of 10 October 1990
         show, there was at that time a steep increase in fuel prices which led the Minister of Merchant Shipping to adjust the tariffs
         for the domestic part of the line, that is to say the Patras-Igoumenitsa-Corfu leg. According to the applicant, the four companies
         mentioned in the telex were probably canvassed on the need to adjust the tariffs for the remainder of the journey, that is
         to say the segment between Corfu and Ancona, so as to mitigate the consequences of the increase in transport costs and so
         that the companies might continue to use their ships on the route during the winter months when tourist traffic is non-existent.
         The applicant points out in this connection that the grant of  
         operating licences by the Ministry of Merchant Shipping is subject to the acceptance of a duty to provide a regular service throughout the year
         and that the licence may be withdrawn for non-compliance with its conditions and that other administrative and penal sanctions
         may be imposed under current legislation. 
         
         
         234
            
          Lastly, the applicant submits that the telexes and documents relating to 1990 which are referred to in the Decision show that,
         in so far as they were in fact announced by a certain number of the companies, the price increases in question were not an
         attempt to increase profits but were dictated by the application of simple economic logic to the very significant increase
         in the cost of providing transportation. 
         
         
         235
            
          This Court found, on considering the first limb of the present plea, that it must reject the argument that the shipping companies
         in question had no autonomy in determining their commercial policy. It also held that the agreements had not been imposed
         on the companies by current national legislation and that the Ministry of Merchant Shipping had in no way taken part in collusion
         on the tariffs applicable on international routes. That being so, the applicant cannot maintain that the negotiations referred
         to in the paragraphs of the Decision just mentioned are attributable to the tactic adopted by each company of appearing to
         comply with the national rules so as to avoid provoking the intervention of the Ministry of Merchant Shipping. Nor can it
         allege that mandatory negotiations concerning international tariffs were imposed on it by the Greek authorities. Lastly, in
         so far as the applicant does not dispute that it took part in the negotiations and contacts mentioned in the documents cited
         in paragraphs 13 to 20 of the Decision, there is no need for the Court to consider the other arguments alleging that transparency
         in the market in any event enabled competitors to ascertain what tariffs were applied to passengers and tourist vehicles.
         
         
         
         236
            
          As regards the facsimile which Strintzis sent on 8 December 1989 (paragraph 16 of the Decision) to the applicant, Anek, Karageorgis
         and Hellenic Mediterranean Lines, to which was attached the table of tariffs for goods vehicles to be applied from 10 December
         1989 onwards on the routes between Patras and Ancona and between Patras and Bari and Brindisi, the applicant cannot claim
         that this is not proof of an agreement on prices. The alternative explanation that it was necessary to avoid unfair competition
         clearly cannot be accepted. The Court cannot accept the applicant's argument that setting  
         ideal prices for the various categories of goods vehicle was an attempt to set up a model for calculating the different tariffs
         to be applied according to the distance of the journey in nautical miles, not to apply a definitive price for each line and
         for each category of goods vehicle. That argument fails to explain why the undertakings thought it necessary to append their
         signatures to a document the alleged object of which was merely to provide a point of reference. 
          3. Evidence relating to 1991
         
         
         237
            
          The applicant observes that the 10% increase in tariffs mentioned in paragraph 21 of the Decision was rendered necessary by
         the very high rate of inflation in Greece at that time. (It reached 25% in 1990.) The applicant emphasises that, in any event,
         the increase in prices remained below the rate of inflation. 
         
         
         238
            
          Next, the applicant refers to the telex of 22 October 1991 and submits that Anek's proposal to set tariffs for the route between
         Patras and Trieste at the same level as for the route between Patras and Ancona amounted to unfair competition within the
         meaning of Article 2(a) of Law No 4195/1929. According to the applicant, it follows that the  
         agreements to which the Commission refers amounted to nothing more than an acknowledgement in principle of the rule that tariffs should
         be proportional to the distance of the journey in nautical miles and a restatement of the need to avoid any unfair competition.
         
         
         
         239
            
          The applicant then refers to Anek's telex of 18 November 1991 (paragraph 23 of the Decision) and emphasises that Anek's main
         reason for not setting the tariffs for the route between Patras and Trieste higher than for the route between Patras and Ancona
         is that  
         [in the previous] year one of the four companies operated a ship on the Ancona-Piraeus-Heraklion route and not only was Anek
         not consulted, it was not even informed about the new tariffs, despite the fact that the routes began in Ancona and were consequently
         particularly subject to competition. The applicant complains that the Commission passed over that passage in silence in the Decision. It claims that the excerpt
         shows that Anek's attitude was a sort of  
         reprisal for the operation of the ship just mentioned, directed against the four companies, including the applicant. Moreover, Anek's
         response confirms that the declaration of an open price war would have had particularly grave consequences for all the undertakings
         because, being contrary to the frequently stated policy of the Ministry of Merchant Shipping, it would inevitably have brought
         about the ministry's intervention and the administrative fixing of upper and lower levels of tariffs pursuant to Article 4
         of Law No 4195/1929. 
         
         
         240
            
          Notwithstanding, the Court finds that the evidence relating to 1991 mentioned in paragraphs 21 to 23 of the Decision is also
         conclusive. The fact that there was agreement on a common list of tariffs for the route between Patras and Ancona is particularly
         clear from the statements contained in the letter of 10 August 1990 which Karageorgis sent to the applicant, Anek and Strintzis.
         The letter says  
         Following the agreement by the four companies that there should be a 5% increase on top of the first 5%, please find attached
         the new price schedules with the final 10% (paragraph 21 of the Decision). 
         
         
         241
            
          Similarly, a telex which the applicant, Karageorgis and Strintzis sent to Anek on 22 October 1991 states (paragraph 22 of
         the Decision): Let us remind you that by a joint effort ─ to which you yourselves contributed ─ we reorganised the tariffs as best we could
         and established differentials on the basis of the distances in nautical miles to the ports of Brindisi, Bari and Ancona ...
         We would accordingly entreat you to defend ─ as you ought to do ─ the agreement between the 11 companies and the 36 vessels
         on the Greece-Italy crossing because given the intense differences which are smouldering away under the surface the existing
         agreement could well collapse ... our companies are obliged to notify you that if you insist on applying the same price from
         Trieste and Ancona for Greece, our agreement for a common price policy concerning the Ancona route will cease and each company
         will determine its own price policy.
         
         
         242
            
          In the face of such direct and clear evidence, and taking into account its observations on the first limb of the third plea,
         the Court must reject the applicant's arguments. 4. Evidence relating to 1992 (paragraphs 24 to 29 of the Decision)
         
         
         243
            
          The applicant observes that uniformity in the tariffs for passengers and tourist vehicles may be explained by the fact that
         they are in any event published in the companies' brochures. Furthermore, the oligopolistic nature of the market combined
         with the stated policy of the Ministry of Merchant Shipping of permitting tariff increases only within the level of inflation
         and of avoiding all unfair price competition led, with mathematical precision, to the convergence of published prices. Consequently,
         it was in no company's interest to publish different tariffs for fear of immediately losing the ability to attract clients
         (should its prices be higher) or immediately being followed by the other companies (should they be lower). As regards the
         case of the company Calberson, mentioned in paragraph 27 of the Decision, the telex sent by ETA may be explained by the fact
         that Calberson had chosen to approach each company, falsely stating that the other companies had offered it a discount, which,
         being contrary to all economic sense, would clearly have amounted to unfair price competition prohibited by the legislation.
         That being so, according to the applicant, the companies reacted by endeavouring to find out if their competitors had indeed
         offered these unlikely discounts. 
         
         
         244
            
          The document dated 25 February 1992 (paragraph 28 of the Decision), which relates to the Ortona route (not the Otrante route,
         as the Decision states) does not, according to the applicant, constitute evidence of an  
         agreement in the strict sense on tariff differentials for the various lines concluded by the companies operating those lines. The applicant
         maintains that, inasmuch as the table of tariffs at the end of the document states actual fares, it is no more than a simplified
         presentation of the fares for the various ports, supplied by its agent ETA for  
         easier understanding, that is to say, to give the applicant an approximate means of comparison. The table does not prove that the fares in question
         were applied in practice by the various companies. As regards the adjustment of the tariffs for vehicles on the routes between
         Greece and Italy, the applicant observes that the excerpt from the telex of 7 January 1993 that is set out in paragraph 29
         of the Decision gives a false impression of the real content of the telex because, as is clear when the telex is read as a
         whole, the  
         last adjustment, to which the telex refers was one concerning the exchange rate between the drachma and the Italian lira, not any increase
         in prices expressed in those two currencies. Consequently, the reference ─ which solely concerns exchange rates, which, for
         the drachma, deteriorated by 15% ─ does not imply that there was any agreement in 1992 between the companies to apply the
         same prices. 
         
         
         245
            
          Lastly, the applicant observes that paragraphs 24 to 29 do not provide a basis for the assertion that it concluded any agreement
         whatsoever with any company whatsoever for the routes to Bari and Brindisi for 1992. 
         
         
         246
            
          As the Commission points out, the argument that actual competition took place not on published tariffs, but rather on discounts,
         cannot succeed. Given that the existence of agreements on prices has been proved, the alleged fact that the societies impugned
         by the Commission competed on aspects other than tariffs does not mean that Article 85(1) of the Treaty is inapplicable. The
         document extracts set out in paragraphs 24 and 25 of the Decision show that meetings were held between the applicant and Strintzis,
         Karageorgis and Anek in July and October 1991 at which agreements were concluded concerning the tariff policy that those companies
         would apply in 1992. As is pointed out in paragraph 28 of the Decision, the document dated 25 February 1992 in which ETA reported
         to Minoan's head office on  
         the latest development concerning the Italy route is a clear indication that the agreement to maintain differentials between the tariffs applied on the various routes between
         Greece and Italy continued during 1992. Lastly, the evidence referred to in paragraphs 27 to 29 of the Decision, and in particular
         the telexes of 7 January 1992 and 7 January 1993, confirm that the applicant played a leading role in the collusion in issue.
         
         
         
         247
            
          Finally, it is appropriate to bear in mind the wording of the telex of 7 January 1993 sent by Minoan to Anek, Karageorgis
         and Strintzis, which shows that the two agreements imputed to the applicant (concerning the routes between Patras and Ancona
         and between Patras and Bari and Brindisi) continued in 1992: We point out that two years have passed since the vehicle tariff was last adjusted.That means that there must be a new adjustment of the tariffs in drachmas or a reduction in the tariffs in lire.As you can see, there is now a 15% variance between the two tariffs.For that reason we propose a 15% adjustment of the tariff in drachmas (see the table below) from 1 February 1993 onwards.Our decision to proceed to an agreement with you on the readjustment without first consulting with the companies on the other
         Italian routes is motivated by a desire to avoid the interminable discussions that would ensue if we were to embark on that
         consultation.We believe that this joint agreement will be looked upon positively by those companies. If it is not, we believe that the
         loss of traffic on the more economic ports will not exceed the 15% tariff readjustment.We would suggest that the tariffs for category 5, that is, vehicles between 12 and 15 metres long, will henceforth apply to
         vehicles between 12 and 16.5 metres in length (because it is a fact that most refrigerated vehicles are, and eventually all
         vehicles will be 16.5 metres long) and that the increase be 5% in lire (that is, from 910 000 to 950 000 Italian lire) for
         15% to 23% in drachmas ...
         
         
         248
            
          In the face of such direct and clear evidence of the applicant's participation in the agreements the Court must reject the
         applicant's arguments. 
          5. Evidence relating to 1993
         
         
         249
            
          The applicant maintains that the proposals which ETA made at the conference of 21 May 1992, to which the telex of 27 May 1992
         refers, were in fact no more than points of discussion. (Distinctions are made by Karageorgis and Strintzis and a reservation
         is expressed by Anek.) They were not binding on the applicant, as is clear from the fact that, in the telex, ETA asked it
         to consider the proposals and give its approval. According to the applicant, the meeting held on 4 August 1992 (mentioned
         in paragraph 31 of the Decision), which addressed the question of  
         no-shows (where an agent sends a ticket on credit to a customer he knows and the customer fails to make the departure and refuses
         to pay for the wasted ticket even though a cabin might have been reserved), did not lead to a decision because the other companies
         were not inclined to agree to the suggested approach for dealing with the problem. The applicant argues that the mere information
         given it by ETA in this connection cannot amount to an infringement of Article 85 of the Treaty. 
         
         
         250
            
          The telex of 6 November 1992 which ETA sent to the other companies operating on the Ancona line was, the applicant insists,
         sent on ETA's sole initiative and without the applicant's knowledge or approval. 
         
         
         251
            
          As regards the tariffs for goods vehicles mentioned in paragraphs 36 and 37 of the Decision, the applicant states that, contrary
         to the Commission's submission, the readjustment was ascribable solely to the rate of exchange between the drachma and the
         lira, not to any simultaneous increase in the tariffs expressed in those two currencies, the readjustment of 15% envisaged
         fully corresponding to the depreciation of the drachma by comparison with the lira. As regards the meeting of 24 November
         1993 and, in particular, the words  
         the collapse of the previous agreement, the applicant says that there is no indication of what the agreement provided, when it was concluded, how long it remained
         in force or the matters it covered. In fact,  
         the previous agreement was nothing more than a non-binding declaration made by the various companies of their intention to comply with the principle
         of proportionality between distances of journeys in nautical miles and tariffs and to combat any unfair price competition.
         The applicant emphasises that, in the telex of 7 January 1993, mentioned in paragraph 36 of the Decision, the allusion to
         the wish to avoid  
         interminable discussions with the companies operating on the other routes to Italy shows that there was no common ground, not even on matters such
         as reasonable adaptation to developing exchange rates. 
         
         
         252
            
          The Court takes the view that the documents referred to in paragraphs 30 to 37 of the Decision, just described, provide objective
         and consistent evidence of the continuance during 1993 of the agreement between the shipowners operating the lines between
         Patras and Ancona and between Patras and Bari and Brindisi. Furthermore, several of the documents contain evidence of the
         intention of the applicant and of the other companies operating the line between Patras and Ancona to call upon the companies
         serving the other lines to adhere to the price readjustment decided on for the line between Patras and Ancona. 
         
         
         253
            
          For example, in the telex which it sent on 7 January 1993 to Strintzis, Anek and Karageorgis to propose a change in the tariffs
         for vehicles on routes between Greece and Italy, the applicant wrote:  
         We point out that two years have passed since the vehicle tariff was last adjusted. It may be deduced from this that, throughout the period between the meeting of 25 October 1990 and 7 January 1993, the cartel
         members did not adjust the tariffs which came into effect on 5 November 1990 and that the tariffs fixed for 1991 remained
         applicable in 1992. 
         
         
         254
            
          Further confirmation of the continuance of the agreement may be found in the telex of 24 November 1993 in which the author
         states:  
         We are very pleased because we began with the problem of the collapse of the previous agreement on account of the opposition
         of the companies of Kosma-Giannatou and Ventouris A., we repaired the situation bit by bit, overcoming the 5% to 10% (positions
         of Strintzis, Ventouris G and Adriatica), and finally got to the percentage stated above. This statement reveals that negotiations took place during 1993 in the course of which differences arose between undertakings
         certain of which were also party to the previous agreement (Ventouris, Adriatica, et al.). The words  
         bit by bit show that there was a whole series of negotiations between the companies (including the applicant) during the year, which
         amounts to proof that the applicant's participation continued from January to November 1993. 
         
         
         255
            
          In the face of such direct and clear evidence of the continuation of the agreements and of the applicant's participation in
         them in 1993, the Court must reject the applicant's arguments. 
          6. Evidence relating to 1994
         
         
         256
            
          The applicant maintains that the agreement to which ETA refers in its telex of 24 November 1993 was nothing more than a non-binding
         statement acknowledging the need for reasonable proportionality between journey distances in nautical miles and tariffs and
         the need to prevent any unfair competition by means of derisory prices such as those charged by the companies on the so-called
         southerly routes. As regards the  
         agreement on a readjustment of the vehicle tariff by approximately 15% mentioned in the telex, the applicant doubts that any such agreement was in fact reached, still less that it was observed
         in practice. The wording of the telex may be ascribed to the wish of the applicant's agent, ETA, to vaunt the achievement
         of a significant success through the personal efforts of its legal representative, Mr Sfinias. The applicant adds that the
         purpose of the telex was probably to convince it to approve the 15% increase, which would also have increased ETA's income
         from commissions. It also adds that ETA's proposal to establish a new tariff offering a 30% discount for payment in cash,
         in order to encourage cash payment, was not followed and indeed had no consequences because the situation reverted to normality
         in July 1994 when all interested parties decided that the expected depreciation in the drachma would not in fact occur thanks,
         inter alia, to governmental measures taken to support the currency. The applicant regards it as wrong, in any event, to impute
         that initiative to it, to treat it as an infringement and, more generally, to conclude that an agreement was concluded to
         establish common tariffs for goods vehicles in 1994. Lastly, the applicant says that, even in 1994, it continued to grant
         substantial discounts to its clients pursuant to individual agreements. 
         
         
         257
            
          It is in paragraphs 38 to 42 of the Decision that the Commission sets out the evidence which led it to conclude that the cartel
         continued in 1994 until at least the date of its investigation. 
         
         
         258
            
          In paragraph 38 of the Decision the Commission relies on ETA's telex of 24 November 1993 to the applicant to show that the
         cartel continued in 1994, in that the agreement was to come into effect on 16 December 1993. The telex also indicates that
         14 companies were present at the meeting that day. The Decision then mentions a telex which the applicant sent on 13 May 1994
         to Anek and Strintzis, which stated that a new type of trailer was becoming common on the Ancona route and suggested a new
         category of fare and a common implementation date. This telex was followed by further telexes of 25 May 1994 and 3 June 1994
         on the same subject, also requesting agreement. Next, the Decision mentions a telex which ETA sent to Minoan's head office
         on 26 May 1994 and then the fact that the Commission's inspection at the premises of the undertakings took place in July 1994.
         Lastly, in paragraph 42 of the Decision, the Commission submits that there is no evidence that the companies continued their
         collusion after that date. 
         
         
         259
            
          The telex of 24 November 1993 which ETA sent to Minoan's head office shows that, on that day, a meeting was attended by 14
         shipping companies. According to paragraph 37 of the Decision the purpose of the meeting was the 1994 price readjustment for
         the routes between Patras and Ancona and between Patras and Brindisi and Bari. The author of the telex wrote: We are pleased to inform you that at today's meeting we achieved agreement on a readjustment of the vehicle tariff by approximately
         15%.That agreement is to be given immediate effect from 16 December 1993.We are very pleased because we began with the problem of the collapse of the previous agreement on account of the opposition
         of the companies of Kosma-Giannatou and Ventouris A., we repaired the situation bit by bit, overcoming the 5% to 10% (positions
         of Strintzis, Ventouris G and Adriatica), and finally got to the percentage stated above....
         
         
         260
            
          That document shows that the applicant participated in an agreement with certain companies to govern the manner in which they
         would conduct themselves in the market from 16 December 1993 onwards and, therefore, in 1994. 
         
         
         261
            
          Similarly, the telexes of 13 May 1994, 25 May 1994 and 3 June 1994 provide objective and consistent evidence of the continuance
         during 1994 of the collusion between shipowners operating the line between Patras and Ancona and of the participation of the
         applicant through the intermediary of its sole agent. 
         
         
         262
            
          In the face of such clear and direct evidence of the continuation of the applicant's participation in the collusion in 1994,
         up to the time of the Commission's investigation in July, the Court must reject the applicant's arguments. 
         
         
         263
            
          In light of all the foregoing the Court must reject the second limb of this plea and rule that the third plea is unfounded
         in its entirety. 
         
         
         
         II ─
          The plea for annulment of the fine or a reduction in the amount of the fine
         
         
         264
            
          In support of its claim for annulment of the fine imposed on it or a reduction in its amount the applicant puts forward a
         plea alleging infringement of Article 19(2) of Regulation No 4056/86 and of the guidelines for calculating fines. 
          A ─ First limb: incorrect assessment of the gravity of the infringement
          Arguments of the parties
         
         
         265
            
          The applicant submits, first of all, that, by classifying the alleged infringement as serious (in paragraph 150 of the Decision),
         the Commission acted contrary to 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 Guidelines), which are also applicable to fines imposed pursuant to Article 19(2) of Regulation No 4056/86. The applicant submits that
         the conditions which would permit the Commission to classify the infringement as serious have not been satisfied in this case,
         because the trade restrictions complained of were not applied strictly and were incapable of affecting a large part of the
         common market, a fact which is acknowledged in the Decision itself (in paragraphs 148 and 149). Consequently, for the purpose
         of calculating the basic amount of the fine, the infringement alleged against the impugned undertakings ought, at worst, to
         have been classified as a minor infringement, that category including trade restrictions with a limited market impact and
         affecting only a substantial but relatively limited part of the Community market. According to the applicant, the basic amount
         of the fine ought to have been no more than the figure given for minor infringements, namely EUR 1 million. 
         
         
         266
            
          Secondly, the applicant submits that the distinction which the Commission drew, when calculating the fines, between the various
         types of transport company, that is, between large carriers, medium-sized carriers and small carriers (paragraphs 151 and
         152 of the Decision), is arbitrary and places the applicant in an unfavourable position by comparison with its competitors.
         The applicant also submits that, in a pan-European context, it cannot be regarded as a large carrier, nor is it a point of
         reference for all its competitors. Lastly, the applicant argues that the most reasonable criterion to use when determining
         the amount of the fine would be the market share of each undertaking on all lines between Greece and Italy (services market)
         because that criterion would also take account of the real ability of each undertaking to  
         cause significant damage in the market as a whole, as mentioned in paragraph 151 of the Decision. 
         
         
         267
            
          The Commission argues that cartels falling within the categories described in Article 85(1) of the Treaty, which include agreements
         between undertakings to fix prices, are to be regarded as particularly serious, as is evidenced by the fact that the provision
         mentions them explicitly as an example of the sort of action that constitutes an infringement. Moreover, the Commission points
         out that, according to settled case-law, an agreement to fix prices by its nature restricts competition (see, to that effect,
          
         Chemiefarma v  
         Commission, cited above, paragraph 133). Lastly, an infringement committed by a cartel which includes most of the active producers in
         the market in question, as in the present case, is a serious infringement. 
         
         
         268
            
          The Commission also observes that, in principle, the Guidelines too classify cartels as very serious infringements. Nevertheless,
         in the present case, it took account (in paragraphs 146 to 150 of the Decision) of the factors raised by the applicant (see,
         in particular, paragraph 148), and also of the fact that the agreements had a limited impact on the market and produced their
         effects only in a limited area of the market. Its conclusion was that the infringement in the present case was a serious one,
         rather than a very serious one. 
         
         
         269
            
          Lastly, the Commission argues that, when fixing the amount of a fine, account must be taken, as the Guidelines provide, of
         all the factors capable of influencing its conclusion as to the gravity of the infringement, one of those being the size of
         the undertakings participating in the prohibited practice. Given that there are considerable differences in the size of the
         undertakings in question in this case, this provides an adequate basis for assessing the weight and importance of each of
         them on the market and thus the real impact of their conduct on competition. 
          Findings of the Court
          1. General remarks
         
         
         270
            
          In this case it is common ground that the Commission determined the fine imposed on the applicant in accordance with the general
         method for setting fines described in the Guidelines, which apply equally to fines imposed pursuant to Article 19(2) of Regulation
         No 4056/86. It is also appropriate to observe that the applicant does not dispute that the Guidelines apply. 
         
         
         271
            
          Article 19(2) of Regulation No 4056/86 provides that  
         [t]he Commission may by decision impose on undertakings or associations of undertakings fines of from [EUR] 1 000 to [EUR]
         one million, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the
         undertakings participating in the infringement, where either intentionally or negligently ... they infringe Article 85(1)
         ... of the Treaty. Article 19(2) also provides that  
         [i]n fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement. 
         
         
         272
            
          The first paragraph of Section 1 of the Guidelines provides that, when calculating a fine, the basic amount will be determined
         according to the gravity and duration of the infringement, which are the only criteria referred to in Article 19(2) of Regulation
         No 4056/86. 
         
         
         273
            
          According to the Guidelines, when calculating a fine, the Commission takes as the starting point a given amount determined
         by reference to the gravity of the infringement. The appraisal of the gravity of the infringement must take account of the
         actual nature of the infringement, its specific impact on the market, where it can be measured, and the size of the relevant
         geographic market (Section 1 A, first paragraph). In that context, infringements are divided into three categories, namely
          
         minor infringements, for which the likely fines are between EUR 1 000 and EUR 1 million,  
         serious infringements, for which the likely fines are between EUR 1 million and EUR 20 million, and  
         very serious infringements for which the fines are likely to exceed EUR 20 million (Section 1 A, first to third indents). 
         
         
         274
            
          Next, mindful of the differential treatment which it is appropriate to apply to undertakings, the Guidelines state that, within
         each of those categories of infringement, and in particular the categories described as serious and very serious, the scale
         of fines allows differential treatment to be applied to undertakings according to the nature of the infringements committed
         (Section 1 A, third paragraph). It is also necessary to take account of the effective economic capacity of the offenders to
         cause significant damage to other operators, in particular consumers, and to set the amount of the fine at a level which ensures
         that it has a sufficiently deterrent effect (Section 1 A, fourth paragraph). Furthermore, account may be taken of the fact
         that large undertakings have in most cases infrastructures capable of providing them with legal and economic information on
         the basis of which they can better appreciate the unlawful nature of the conduct and the consequences stemming from it under
         competition law (Section 1 A, fifth paragraph). 
         
         
         275
            
          Within each of the three categories just defined, it may be appropriate in cases involving several undertakings, such as cartels,
         to apply weightings to the amounts decided on so as to take account of the specific weight and therefore the real impact on
         competition of the unlawful conduct of each undertaking, especially where there is considerable disparity in the sizes of
         the undertakings that have committed an infringement of the same nature and to make consequential adjustments to the basic
         amount depending on the specific characteristics of each undertaking (Section 1 A, sixth paragraph). 
         
         
         276
            
          As regards the factor relating to the duration of the infringement, the Guidelines draw a distinction between infringements
         of short duration (in general, less than one year), for which the starting amount, determined for gravity, should not be increased,
         infringements of medium duration (in general, one to five years), for which the amount determined for gravity may be increased
         by up to 50%, and infringements of long duration (in general, more than five years), for which the amount determined for gravity
         may be increased by 10% per year (first to third indents of the first paragraph of Section 1 B). 
         
         
         277
            
          Next, the Guidelines set out, by way of example, a list of aggravating and mitigating circumstances which may be taken into
         consideration in order to increase or reduce the basic amount and refer to the Commission notice of 18 July 1996 on the non-imposition
         or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (
         the Leniency Notice). 
         
         
         278
            
          By way of a general remark, the Guidelines state that the final amount calculated according to this method (basic amount increased
         or reduced on a percentage basis) may not in any case exceed 10% of the worldwide turnover of the undertakings, as laid down
         by Article 19(2) of Regulation No 4056/86 (Section 5(a)). The Guidelines further provide that, depending on the circumstances,
         account should be taken, once the above calculations have been made, of certain objective factors such as a specific economic
         context, any economic or financial benefit derived by the offenders, the specific characteristics of the undertakings in question
         and their real ability to pay in a specific social context, and that the fines should be adjusted accordingly (Section 5(b)).
         
         
         
         279
            
          It follows that, under the method laid down in the Guidelines, fines continue to be calculated according to the two criteria
         referred to in Article 19(2) of Regulation No 4056/86, namely the gravity of the infringement and its duration, and the maximum
         percentage of turnover of each undertaking as laid down in that provision is observed. Consequently, the Guidelines do not
         go beyond the legal framework of the fines set out in that provision (Case T-23/99  
         LR AF 1998 v  
         Commission [2002] ECR II-1705, paragraphs 231 and 232). 
          2. The merits of the first limb of the fourth plea
         
         
         280
            
          As has just been recalled, in the Guidelines, cartels are in principle classed as very serious infringements. That classification
         accords perfectly with the case-law of the Court of Justice and of the Court of First Instance, which holds this type of infringement
         to be one of the most serious restrictions of competition, especially where the cartel is concerned with price fixing. 
         
         
         281
            
          Now, as far as the present case and the applicant's situation are concerned, it is clear from paragraphs 147 to 150 of the
         Decision that, although the Commission stated (in paragraph 147 of the Decision) that  
         [a]n agreement by which the price of transporting passengers and freight by roll-on roll-off ferries was agreed by some of
         the most important ferry operators in the relevant market constitutes, by its nature, a very serious breach of Community law, it in fact classed the infringement as being only a serious one (paragraph 150 of the Decision). It came to reduce the gravity
         of the infringement after observing that  
         the infringement had a limited actual impact on the market and that,  
         during the period of the infringement, the Greek Government encouraged the undertakings to keep fare increases within the
         inflation rates and that consequently  
         fares were kept at one of the lowest levels within the common market for maritime transport from one Member State to the other (paragraph 148 of the Decision). Furthermore, the Commission took account of the fact that the infringement  
         produced its effect within a limited part of the common market, namely three of the Adriatic sea routes, a market that is small compared to other markets within the Community (paragraph 149 of the Decision). 
         
         
         282
            
          It follows that the Commission was right to classify the infringement in the Decision as a serious one. 
         
         
         283
            
          As regards the applicant's argument concerning the relative sizes of the undertakings, it is clear from paragraphs 151 and
         152 of the Decision that the Commission considered it appropriate to take account of the effective capacity of offenders to
         cause significant damage and that it wished to set the fine at a level which would ensure that it had a sufficiently deterrent
         effect. The Commission considered it appropriate that larger fines be imposed on the larger undertakings than on the smaller
         ones because of the considerable disparity in their sizes. Table 1 (set out in paragraph 151 of the Decision) indicates the
         relative size of each of the undertakings concerned by the Decision. It shows that the applicant is the largest operator in
         the market, followed by the only other large operator in the market, Anek, and that it is more than twice as large as the
         operators classified as medium carriers and 10 times larger than the small carriers. The comparison is based on turnover achieved
         in 1993 from roll-on roll-off services on the Adriatic routes, that being a reference year from which the Commission could
         assess the specific weight and importance of the undertakings in the relevant market and, thus, evaluate the real impact of
         the offending conduct of each undertaking on competition. Paragraph 152 of the Decision explains that, on that basis, the
         amount of the medium-sized carriers' fines reflecting the gravity of the infringement were set at 65% of the fines of the
         large carriers, which include the applicant. 
         
         
         284
            
          It is clear from case-law that the Commission may impose a heavier fine on an undertaking which occupies a decisive position
         within the market and where the impact of its actions on the market is more significant than that of the actions of other
         undertakings committing the same infringement, without violating the principle of equal treatment by so doing. Calculating
         the amount of the fine in such a way also satisfies the requirement that it be sufficiently dissuasive (see, to that effect,
         Joined Cases T-24/93 to T-26/93 and T-28/93  
         Compagnie maritime belge transports and Others v  
         Commission [1996] ECR II-1201, paragraph 235). 
         
         
         285
            
          Moreover, the size of the undertakings which took part in the prohibited practice is one of the points of reference stipulated
         in the Guidelines for the calculation of fines. It follows that, contrary to the applicant's claim, the distinction between
         large, medium-sized and small operators drawn in paragraphs 151 and 152 of the Decision for the purpose of determining their
         fines is wholly consistent with the wording and objectives of the Guidelines. Furthermore, the applicant does not dispute
         the percentages which the Commission used in the comparative analysis set out in paragraph 151 of the Decision or the fact
         that there are significant differences in size between the undertakings impugned in this action. Therefore, the argument that
         the Commission made an error by distinguishing between various types of transporters cannot be upheld and the applicant has
         no just complaint that the Commission took relative size to be an adequate basis for assessing the specific weight and importance
         of each undertaking on the market and the real impact of its conduct on competition. 
         
         
         286
            
          This limb of the fourth plea must therefore be rejected. 
          B ─ The second limb: incorrect assessment of the duration of the infringement
          Arguments of the parties
         
         
         287
            
          The applicant argues that what the Decision describes as an  
         agreement was in fact a practice of negotiation between the companies operating on routes between Greece and Italy of several decades'
         standing, which simply continued after 1 July 1987, the date on which Regulation No 4056/86 came into force. It criticises
         the Commission for not treating the fact that the practice had gone on for decades as a mitigating circumstance and instead
         considering the continuance and application of this  
         habitual practice to be a particularly serious aggravating circumstance. First, the Commission found that this  
         habitual practice was one of  
         long duration (paragraph 155 of the Decision). Secondly, it took an extremely severe approach and increased the applicant's fine by the
         maximum permissible uplift of 10% for each year of the infringement, even though the Guidelines provide that, in the case
         of infringements of long duration (over five years), an uplift may be made of up to 10% (see Section 1 B, first paragraph,
         third indent, of the Guidelines). In this way the fine imposed on the applicant was increased by a very substantial 70% (paragraph
         156 of the Decision) of an already considerable basic amount (2 million ecus), unfairly bringing the basic amount of the fine
         to 3.4 million ecus (paragraph 158 of the Decision). 
         
         
         288
            
          The Commission notes that the applicant does not take issue with the start and end dates of the agreement (1 July 1987 and
         July 1994) and points out that, as the Guidelines provide, infringements lasting for more than five years are regarded as
         being of long duration. The Commission also argues that it can impose a maximum uplift of 10% for each year of the infringement
         and submits that, in this case, it kept within the limits laid down. 
          Findings of the Court
         
         
         289
            
          It is clear from the Guidelines that an amount reflecting the duration of the infringement in the case of each undertaking
         may be calculated and added to the general basic amount (calculated by reference to the gravity of the infringement) and that,
         to that end, the Commission must distinguish between three types of infringement: those of short duration (generally less
         than one year), those of medium-term duration (generally between one and five years) and those of long duration (generally
         over five years). 
         
         
         290
            
          Whilst no additional amount may be added in the case of infringements of short duration, the Commission may, in the case of
         infringements of medium-term duration, increase by up to 50% the general basic amount (calculated by reference to the gravity
         of the infringement). As regards infringements of long duration, the figure chosen to reflect the gravity of the infringement
         may be increased by 10% per annum. The Guidelines state that the Commission wished, in this way, to strengthen considerably,
         by comparison with previous practice, the increase in the fine for long-term infringements with a view to imposing effective
         sanctions on restrictions which have had a harmful impact on consumers over a long period. 
         
         
         291
            
          Paragraph 153 of the Decision explains that the Commission found that, in the case of Strintzis and the applicant, the infringement
         began on 18 July 1987 at the latest and went on until July 1994 (when the Commission carried out its investigation). It classified
         the infringement as one of long duration in the case of the applicant, Strintzis and Karageorgis (paragraph 155 of the Decision)
         and found that that justified increasing the fines by 10% for every year of the infringement for the applicant and Strintzis,
         giving a total increase of 70% (paragraph 156 of the Decision). Table 2 sets out the percentage increments applied in the
         case of each company. 
         
         
         292
            
          It is appropriate to observe that the applicant has not taken issue with the finding that the infringement began on 1 July
         1987 (indeed, it emphasises that the agreements existed even before that date), ended on July 1994 and thus went on for seven
         years. Therefore, and given that the Guidelines provide that infringements lasting for more than five years are to be regarded
         as being of long duration and that such infringements warrant an uplift of up to 10% per annum of the amount decided on to
         reflect the gravity of the infringement, the applicant cannot say that the criteria laid down in the Guidelines have been
         ignored. 
         
         
         293
            
          The Court cannot accept the applicant's claim that the Commission should be censured for finding that the infringement was
         one of long duration instead of acknowledging as a mitigating circumstance the fact that the practice of negotiating had been
         going on for decades. It is within the Commission's sole discretion to state in the Decision the date on which it believes
         the infringement began on the basis of the evidence it has of the existence and scope of the infringement. Therefore, contrary
         to the applicant's submission, the fact that the conduct punished in the Decision in fact began considerably earlier than
         the date specified in the Decision can in no way constitute a mitigating circumstance. 
         
         
         294
            
          Lastly, it must be borne in mind that whilst the Court cannot uphold the applicant's submission that it was a matter of tradition
         for the companies operating shipping lines in Greece to contact each other, that this was at the behest of the Greek Government
         and that therefore any such contact fell outside the scope of the prohibition on agreements that restrict competition which
         is laid down in Article 85(1) of the Treaty, the Commission nevertheless treated those factors as a mitigating circumstance.
         Indeed, in paragraph 163 of the Decision, the Commission acknowledged that  
         [t]he usual practice ─ not directly imposed by the legal or regulatory framework ─ of fixing domestic fares in Greece through
         a consultation of all domestic operators (whereby they were expected to submit a common proposal) and the ex post decision
         of the Ministry of [Merchant Shipping] may have created some doubt among the Greek companies operating also on domestic routes
         as to whether price fixing consultation for the international route did indeed constitute an infringement. In view of these considerations the Commission reduced the fines by 15% for all the undertakings (paragraph 163 of the Decision).
         
         
         
         295
            
          The second limb of the fourth plea must therefore be rejected. 
          C ─ The third limb: incorrect assessment of the aggravating circumstances
          Arguments of the parties
         
         
         296
            
          The applicant submits that the aggravating circumstances which the Decision ascribes to it (in paragraph 159 to 161) are groundless,
         imprecise, biased and incomplete. The Decision violates the fundamental principle of proportionality, the prohibition on discrimination
         and the principle of sound administration. 
         
         
         297
            
          First of all, the applicant disputes that it acted as the instigator of the cartel, reminding the Court that this was a  
         usual practice which had gone on for several decades, as the Decision acknowledges. In this connection it adds that, from 1981 until mid-1987,
         it operated lines between Greece and Italy with just one ship, those lines being dominated by other companies like Karageorgis,
         Strintzis, HML, Adriatica and Ventouris, which operated a larger number of vessels. 
         
         
         298
            
          Second, the applicant submits that the telex of 15 March 1989 is insufficient to support the view that it was the  
         instigator of a  
         cartel, given the prior existence of the  
         usual practice. 
         
         
         299
            
          Third, it was wrong of the Commission to say in the Decision that the applicant had  
         organised ... meetings with the companies involved in the infringement. Indeed, the telexes which ETA sent on 21 May 1992 and 24 November 1993, on which the Commission's accusation rests (see
         paragraphs 30, 37 and 38 of the Decision) merely inform Minoan, after the event, about a meeting that had already been decided
         upon (the telex of 21 May 1992) and another meeting that had already taken place (the telex of 24 November 1993). There can
         therefore be no question that the applicant  
         organised (to use the word used in the Decision) these two meetings. It was simply informed about them afterwards. Lastly, since ETA
         cannot be held responsible for having organised the meetings, nor,  
         a fortiori, can the applicant. 
         
         
         300
            
          Fourth, the applicant disputes that it  
         monitored the cartel's operations. The biased, incomplete and, in any event,  
         a posteriori information which it received from ETA did not enable it to monitor the cartel's operations. The applicant regards as particularly
         illuminating the telex of 24 November 1993 which ETA sent it and which it regards as deliberately exaggerated because of Mr
         Sfinias's desire to claim for himself a significant success. 
         
         
         301
            
          Fifth, the applicant denies that it  
         tried to extend the scope of the companies' collaboration and takes issue with the Commission's interpretation of the telexes to which it refers in its assessment of this aggravating
         circumstance. 
         
         
         302
            
          Sixth, the applicant denies that it attempted to  
         obstruct the Commission in carrying out its investigation. The Decision is wrong where it states that  
         Minoan proposed that each company should differentiate its prices by 1% for four cabin categories. That suggestion came from ETA, not the applicant. Minoan gave no directives or directions, nor was it informed of the measure,
         nor did it approve it. 
         
         
         303
            
          The applicant concludes that the Decision erred, and was unreasonably severe, in increasing the basic amount of the fine by
         10% because of its alleged role as instigator of the cartel. 
         
         
         304
            
          Next, the applicant pleads that the Commission breached the principle of equal treatment in its assessment of the aggravating
         circumstances. 
         
         
         305
            
          The applicant maintains that other impugned companies launched projects and initiatives similar to those of ETA which the
         Commission imputes to it. That being so, and given the Commission's description of the applicant as  
         instigator of the cartel, the Decision breaches the principle of equal treatment because it places the applicant in a less favourable position than
         that of its competitors. 
         
         
         306
            
          The applicant begins by comparing its situation with that of Strintzis, arguing that it is clear from a reading of paragraphs
         13, 14, 16, 18, 19, 24, 25 and 35 of the Decision that Strintzis played a part in the unfolding of events comparable to, if
         not more important than that alleged against ETA and imputed to Minoan. Yet its initiatives were not treated as aggravating
         circumstances, by contrast with the decision in the applicant's case. The Commission therefore clearly breached the principle
         of equal treatment. Next, the applicant criticises the Commission for having omitted from the Decision the fact that Strintzis
         also operated a ship on the route to Brindisi in 1989, 1990 and 1991. It also complains that it is described in the Decision
         as the  
         instigator of the extension of the collaboration to the companies operating on the southerly routes, despite the fact that it never
         had a presence on those routes, unlike Strintzis, which has not been charged with that aggravating circumstance. The applicant
         also mentions the treatment accorded to Karageorgis, against which similar initiatives are alleged in paragraphs 18, 21 and
         33 of the Decision, without the Commission taking them to be aggravating circumstances. 
         
         
         307
            
          The Commission, for its part, disputes the applicant's allegation that the Decision errs in treating it as the protagonist
         in the creation of the cartel and its further allegation that it breached the principles of equal treatment and proportionality
         in its findings concerning aggravating circumstances. The Commission refers to paragraphs 159 to 161 of the Decision in which
         it set out various pieces of evidence that indicate that the applicant had played a leading part in the creation of the cartel
         and in the monitoring of developments within the cartel and reveal the efforts which the applicant made to obstruct the Commission's
         inquiry. 
         
         
         308
            
          In addition, the Commission maintains that, in assessing the fines, it took account of the overall conduct of the impugned
         undertakings and of the role played by each of them, as is required by case-law. It maintains that the evidence shows that
         the applicant was clearly more active in the cartel than the other impugned companies, not only making proposals but also
         organising meetings and informing the other companies of the reply it gave to the Commission's request for information as
         well as attempting to obstruct the Commission's investigation. 
          Findings of the Court
         
         
         309
            
          It is clear from Section 2 of the Guidelines that the Commission may increase the basic amount of a fine in order to reflect
         aggravating circumstances. The Guidelines set out a list of potential aggravating circumstances. These include, by way of
         example, repetition of the same type of infringement by the same company, refusal to cooperate with or attempts to obstruct
         the Commission in carrying out its investigations, adopting the role of leader in, or instigator of an infringement and the
         deployment of retaliatory measures against other undertakings with a view to enforcing practices which constitute an infringement.
         The Guidelines also mention that it may be necessary for the Commission to increase the basic amount of a fine in order to
         exceed the amount of gains improperly made as a result of the infringement when it is objectively possible to estimate that
         amount. 
         
         
         310
            
          The Commission set out in paragraphs 159 to 161 of the Decision the factors which it regarded as aggravating circumstances
         in the case of each of the undertakings to which the Decision is addressed. 
          1. The role of instigator of the cartel
         
         
         311
            
          As far as the applicant is concerned, the Commission found (at paragraph 159 of the Decision) that it was appropriate to increase
         its fine by 25% in view of its having acted as instigator of the cartel. 
         
         
         312
            
          The Commission reached that conclusion after considering a series of circumstances. 
         
         
         313
            
          First, it found that the applicant had tried to persuade Anek to join the cartel. On this point it is enough to read Minoan's
         telex of 15 March 1989 to find that that was indeed the case. 
         
         
         314
            
          Secondly, the Commission found that the applicant had discussed with Ventouris the latter's tariff policy in the Ortona route
         (see ETA's document of 25 February 1992) and organised and directed meetings with the companies involved in the infringement
         (ETA's telexes of 21 May 1992 and 24 November 1993). 
         
         
         315
            
          It must be emphasised that the Commission was right to find in the Decision that the applicant had organised and directed
         meetings with the companies involved in the infringement (see ETA's telexes of 21 May 1992 and 24 November 1993). 
         
         
         316
            
          As far as the meeting of 21 May 1992 is concerned, it is indeed clear from ETA's telex of that date to the applicant that
         the latter had been informed of the fact that a  
         conference of representatives of the Patras-Ancona route shipping companies [was] to be convened to discuss the drafting of
         the new tariff for 1993 and was aware of the agenda for that meeting. Similarly, it is clear from a telex dated 27 May 1992 that ETA informed the
         applicant of the proposals which it had made to the meeting of shipping companies held on 21 May 1992, which had been generally
         accepted. 
         
         
         317
            
          As far as the meeting of 24 November 1993 is concerned, a telex which ETA sent that day to the applicant's head office states:
         We are pleased to inform you that at today's meeting we achieved agreement on a readjustment of the vehicle tariff by approximately
         15%.That agreement is to be given immediate effect from 16 December 1993.We are very pleased because we began with the problem of the collapse of the previous agreement on account of the opposition
         of the companies of Kosma-Giannatou and Ventouris A., we repaired the situation bit by bit, overcoming the 5% to 10% (positions
         of Strintzis, Ventouris G and Adriatica), and finally got to the percentage stated above....
         
         
         318
            
          The telex shows that on 24 November 1993 a meeting was attended by 14 shipping companies the purpose of which was the 1994
         price readjustment for the routes between Patras and Ancona, Brindisi and Bari. It clearly shows that the applicant's agent
         played an important part in furthering negotiations. 
         
         
         319
            
          Thirdly, the Commission took into account the fact that the applicant not only monitored the cartel's operations but also
         tried to extend the scope of the companies' collaboration (see the telexes dated 15 March 1989, 7 January 1992, 25 February
         1992, 7 January 1993, 24 September 1993 and 26 May 1994). 
         
         
         320
            
          The Court has already considered the telexes of 15 March 1989, 25 February 1992 and 24 September 1993 and has found that the
         matter which the Commission alleges as aggravating circumstances in regard to the applicant have been established. 
         
         
         321
            
          The telex of 7 January 1992 from the applicant to Anek, Strintzis and Karageorgis, mentioned in paragraph 27 of the Decision,
         without demur on the applicant's part, warns its addressees that several importers of motor vehicles are  
         endeavouring to lure our companies into tariff competition ... we propose to you that we should stick to a common policy which
         will keep us off the slippery slope. The applicant proposed a price to be quoted by all the companies and requested their agreement  
         in order to reply to the Calberson company which, as you know, has been in contact with all of the companies. 
         
         
         322
            
          The telex dated 7 January 1993 from the applicant to Strintzis, Anek and Karageorgis suggested an adjustment to the tariffs
         for vehicles on the routes between Greece and Italy. It says: our decision to proceed to an agreement with you on the readjustment without first consulting with the companies on the other
         Italian routes is motivated by a desire to avoid the interminable discussions that would ensue if we were to embark on that
         consultation. We believe that this joint agreement will be looked upon positively by those companies. If it is not, we believe
         that the loss of traffic on the more economic ports will not exceed the 15% tariff readjustment ... We await your agreement.
         
         
         323
            
          It is clear from that telex that the applicant decided to negotiate directly with its main competitors on the route between
         Patras and Ancona, namely Strintzis, Anek and Karageorgis, and to suspend negotiations with the companies operating other
         lines. That demonstrates the importance of the applicant's role in the functioning and evolution of the agreements. Lastly,
         the mention in the telex of the need to make the adjustment  
         without first consulting with the companies on the other Italian routes must be taken as a reflection of the applicant's wish to demonstrate the real possibilities of achieving a price readjustment
         and, therefore, its wish to encourage the other companies operating on the route between Patras and Ancona to agree to that
         readjustment. Thus, contrary to the applicant's claim, the statement does indeed constitute evidence of its attempt to  
         extend the scope of the companies' collaboration. 
         
         
         324
            
          The telex which ETA sent to the applicant's head office on 26 May 1994 states: As a result of developing market conditions caused by high interest rates on repurchase facilities, short-term borrowing and
         financings, no one is paying in cash, everyone is paying with post-dated cheques.To deal with this phenomenon, we have instructed our Piraeus office to restrict credit.As you know, our customers reacted by complaining about us to you and seeking a solution through the issue of tickets by the
         Heraklion intermediary, where you are still granting credit.We have embarked on an initiative to get a new tariff implemented on the Italy routes with differing rates for cash payment
         and two-month cheques.The problem is that we have to get the agreement of 16 companies. Nevertheless, we are optimistic.
         
         
         325
            
          That document speaks of a particular problem arising from the fact that the companies' customers were more and more frequently
         paying with post-dated cheques, rather than cash. It also mentions an initiative to get a new price schedule implemented on
         the routes to Italian destinations with differing rates for cash payment and 60-day cheques. The words  
         we have embarked on an initiative demonstrate that the applicant's agent acted as ringleader in the initiatives, even though the document does not precisely
         state which other companies were the target of ETA's initiative. 
         
         
         326
            
          It follows that the Commission has established to the requisite legal standard that the applicant played an important role
         in the course of the events sanctioned by the Commission, which it rightly regarded as constituting a cartel. 
         
         
         327
            
          Lastly, given the probative value of the direct documentary evidence, the arguments which the applicant puts forward cannot
         be upheld. First of all, the fact that, until 1987, operation of the routes between Greece and Italy was dominated by other
         companies, such as Karageorgis, Strintzis, HML, Adriatica and Ventouris is irrelevant because the infringement of which the
         Commission complains began only in 1987. Secondly, the fact that there was in Greece a usual practice of fixing domestic fares
         through a consultation of all domestic operators has no bearing on the role actually played by the applicant. The point is
         more likely to be taken in the opposite sense from that intended by the applicant if it were to prove true that the applicant
         was one of the largest undertakings serving domestic Greek lines. 
         
         
         328
            
          The arguments centring on the wrongful attribution to the applicant of ETA's conduct cannot be upheld, as the Court explained
         in its analysis of the second plea. 
         
         
         329
            
          That being so, the applicant has no grounds for criticising the Commission for treating it as the instigator of the cartel
         and for finding that the role which it played was very clear-cut in comparison with that of the other undertakings, such as
         Strintzis and Karageorgis. 
         
         
         330
            
          Lastly, the applicant cannot say that the Commission breached the principle of equal treatment in fixing the amount of the
         fines. 
         
         
         331
            
          First of all, it is not true that the Commission completely ignored the fact that other undertakings, namely Strintzis and
         Karageorgis, also launched various initiatives under the price-fixing agreement, as the applicant claims. It is sufficient
         to note that these two undertakings are not among those benefiting from the 15% reduction in the fines accorded in paragraph
         164 of the Decision on the ground that they had played an exclusively  
         follow-my-leader role in the infringement. 
         
         
         332
            
          Next, given that it is established that the applicant played the leading role in the infringement, the Court must reject its
         complaint that the Decision charges it with having attempted to extend the collaboration to other companies operating on the
         southerly routes despite the fact that, unlike Strintzis, it never had a presence on those routes, and even though Strintzis
         also operated a ship on the route to Brindisi in 1989, 1990 and 1991. It should be observed in this connection that the Commission
         did not criticise the applicant alone for having sought to collaborate with the companies serving the southerly routes. It
         took more general account of the fact that several documents show that the applicant attempted on a number of occasions, in
         different contexts, on different routes and at different times to extend the collaboration of the undertakings. 
         
         
         333
            
          Equally, the applicant cannot claim that it has suffered discrimination by comparison with Karageorgis in the Commission's
         assessment of aggravating circumstances. Whilst paragraphs 18, 21 and 33 of the Decision, to which the applicant refers, point
         up the fact that Karageorgis participated in the cartel and was actively involved inasmuch as it replied to the applicant's
         telexes, confirming its agreement on the new tariffs, they do not show that it acted as instigator or that it promoted initiatives,
         as did the applicant. 
         
         
         334
            
          Lastly, it is appropriate to point out that, as the Commission submits, even if Strintzis and Karageorgis had also played
         a leading role in the agreements and the Commission was therefore wrong not to increase their fines to the same degree, it
         is necessary that respect for the principle of equal treatment be reconciled with the principle of legality, according to
         which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (
         Mayr-Melnhof   v  
         Commission, cited above, paragraphs 334 and 335). 
          2. The applicant's attempts to obstruct the Commission's investigation
         
         
         335
            
          It is clear from paragraphs 160 and 161 of the Decision that the Commission increased the applicant's fine by 10% because
         it attempted to obstruct its investigation. After the parties had received requests for information from the Commission the
         applicant proposed, in November 1992, that each company should differentiate its prices by 1% for four cabin categories. That,
         according to the Commission, amounts to an attempt to obstruct its investigation. 
         
         
         336
            
          The Commission states, in paragraph 34 of the Decision, that in November 1992, having received a request for information from
         the Commission concerning prices on routes between Greece and Italy, the applicant sent a telex to Anek, Karageorgis and Strintzis
         stating: Because of the sensitive situation brought about by the Commission's question concerning our price schedules on the Greece-Italy
         route and after the verbal exchange of views, we propose the following: of the 17 categories in our schedule,  
         deck should be disregarded, since this is where none of us wants anyone to be cheaper; as for the remaining 16, each company should
         take four categories (to be chosen by Mr Sakellis) [of Strintzis] and reduce its schedule by 1%.The telex also states that the applicant sent Anek a copy of its reply to the request for information.
         
         
         337
            
          Paragraph 34 of the Decision refers to a telex signed by Mr Sfinias and sent on 6 November 1992 by Minoan to Anek, Karageorgis
         and Strintzis. A copy of the telex is set out in annex 31 to the defence. The applicant disputes neither its existence nor
         its truth. However, it maintains that the author of the initiative was not itself but ETA, that it gave no directions or instructions
         and that the initiative was taken without its knowledge or approval. The content of the telex however clearly shows that the
         Commission was right to take the view that the applicant attempted to obstruct the Commission's investigation. 
         
         
         338
            
          Similarly, the applicant does not dispute that it informed the other companies of the reply which it gave to the Commission's
         request for information. In the context of this case and, in particular, in light of the telex of 6 November 1992, that may
         be interpreted as an attempt to obstruct the Commission's investigation. 
         
         
         339
            
          In light of all the foregoing the Court must reject the third limb of this plea in its entirety. 
          D ─ The fourth limb: incorrect assessment of the mitigating circumstances
          Arguments of the parties
         
         
         340
            
          The applicant complains that the Commission allowed it only the mitigating circumstances mentioned in paragraphs 162, 163
         and 169 of the Decision, even though it submits that it might legitimately claim the benefit of all the mitigating circumstances
         set out in the Guidelines. 
         
         
         341
            
          More specifically, it maintains that it played a passive role, because none of ETA's initiatives should be imputed to it,
         and that it did not actually apply the agreements, as is acknowledged in the Decision. The applicant also argues that, immediately
         after the investigations of 5 and 6 July 1994, it sent ETA instructions and a very strict warning concerning the latter's
         actions. The applicant had, it says, been convinced that its conduct was not unlawful. On the contrary, it was an attempt
         to comply with the legislative and regulatory framework and with the policy of the Ministry of Merchant Shipping. That shows
         that there was more than a reasonable doubt as to whether the restrictive practice in question was illegal. The applicant
         maintains that any infringement of which it might be guilty is attributable not to negligence but quite simply to its absolute
         unawareness than its conduct was unlawful. Lastly, the applicant claims that it cooperated effectively with the Commission
         from the beginning and that it provided all the necessary information on all aspects of the present matter. 
         
         
         342
            
          Lastly, the Commission's failure to acknowledge these mitigating circumstances constitutes, according to the applicant, a
         breach of the principle of proportionality and discrimination by comparison with the other companies, which were given the
         benefit of a greater number of mitigating circumstances. In particular, the applicant maintains that Anek's conduct shed no
         light on the matter because, well before Anek sent its memoranda to the Commission, the applicant (and other companies too)
         had provided the Commission with information, had explained all the negotiations between the companies and had put itself
         at the Commission's disposal for any further information. 
         
         
         343
            
          The applicant concludes that, in the circumstances, the reduction in its fine of 35% is particularly small in comparison with
         that applied to the fines of Marlines, Adriatica and Ventouris (45%) and Anek (70%) especially when account is taken of the
         fact that the reduction is in fact cancelled out by the increase of 35% already applied on account of alleged aggravating
         circumstances. 
         
         
         344
            
          The Commission takes issue with the applicant's arguments that there are other mitigating circumstances in its favour and
         reminds the Court that the mitigating circumstances which it did take into account are detailed in paragraphs 162 to 169 of
         the Decision. 
          Findings of the Court
         
         
         345
            
          It is clear from Section 3 of the Guidelines that the Commission may reduce the basic amount of a fine to take account,
         inter alia, of the following mitigating circumstances: the fact that an undertaking has adopted an exclusively passive or  
         follow-my-leader role in the infringement, non-implementation in practice of the offending agreements or practices, termination of the infringement
         as soon as the Commission intervenes (in particular when it carries out checks), the existence of reasonable doubt on the
         part of the undertaking as to whether the restrictive conduct does indeed constitute an infringement, infringements committed
         as a result of negligence or unintentionally and effective cooperation by the undertaking in the proceedings, outside the
         scope of the Leniency Notice. 
         
         
         346
            
          Paragraphs 162 to 164 of the Decision explain that the Commission took into account a number of mitigating circumstances in
         favour of the undertakings to which its Decision was addressed. 
         
         
         347
            
          First, the Commission found (in paragraph 163) that the usual practice of fixing domestic fares in Greece through a consultation
         of all domestic operators and the ex post decision of the Ministry of Merchant Shipping might have created some doubt among
         the Greek companies operating also on domestic routes as to whether price fixing consultation for the international segments
         of routes did indeed constitute an infringement. Those considerations justified a 15% reduction in the fines imposed on all
         the undertakings. 
         
         
         348
            
          Secondly, the Commission took into account (in paragraph 164) the fact that Marlines, Adriatica, Anek and Ventouris had played
         an exclusively  
         follow-my-leader role in the infringement and found that that justified a 15% reduction in the fines imposed on those four undertakings. 
         
         
         349
            
          Lastly, it must be remembered that in paragraph 169 of the Decision the Commission pointed out that a 20% reduction in the
         fines was granted for all companies, including the applicant, in view of the fact that they had not contested the factual
         basis of the Commission's statement of objections. In Anek's case that reduction was in fact 5% because it also produced documents
         before the Commission issued its statement of objections and these confirmed, to a significant extent, the existence of the
         infringement in question. 
         
         
         350
            
          The applicant cannot reproach the Commission for not having found in its favour all the mitigating circumstances mentioned
         in the Guidelines. 
         
         
         351
            
          First of all, as has been observed, the applicant's claim that it played a passive role is groundless, it being quite right
         to impute ETA's conduct to it. 
         
         
         352
            
          Secondly, in so far as concerns non-implementation of the agreements, suffice it to recall that the Commission took that factor
         into account when assessing the gravity of the infringement, that is to say when determining the basic amount, as is expressly
         stated in paragraph 162 of the Decision. 
         
         
         353
            
          Nor can the applicant reproach the Commission for failing to make a further reduction on account of the applicant's alleged
         ignorance of the fact that its conduct was unlawful because the confusion created by the legislative and political framework
         imposed by the Greek authorities concerning domestic traffic was in fact taken into account and the undertakings were allowed
         a 15% reduction (in paragraph 163 of the Decision). 
         
         
         354
            
          As regards the applicant's alleged collaboration with the Commission from the beginning and the fact that it provided the
         Commission with all necessary information on all aspects of the present affair, the Commission cannot be criticised for failing
         expressly to highlight that cooperation because it granted a 20% reduction on account of the fact that the applicant did not
         dispute the substantive truth of the facts. 
         
         
         355
            
          Lastly, the applicant cannot claim that it suffered discrimination by comparison with Anek and that it deserved the same reduction
         as that allowed to that undertaking. It is solely for the Commission to determine the extent to which the cooperation afforded
         by the undertakings was of use to it in carrying out its duties. The applicant does not dispute the fact that Anek produced
         specific documents proving its express admission of the facts. Such a degree of cooperation cannot be compared with the applicant's
         merely not disputing the facts set out in the statement of objections. Moreover, it should be remembered that the applicant
         was allowed a 20% reduction in its fine for not disputing those facts. 
         
         
         356
            
          In light of all the foregoing the fourth limb of this plea must be rejected as unfounded. 
         
         
         
         III ─
          The application for an increase in the fine imposed on the applicant
         
         
         357
            
          The Commission points out that, during the course of the present action, the applicant has on a number of occasions called
         into question the facts on which the Decision rests. It has asked the Court to exercise its unlimited discretion under Article
         229 EC and increase the applicant's fine by 20% (or, in other words, to withdraw the 20% reduction allowed on grounds of its
         cooperation). 
         
         
         358
            
          The Court cannot, however, uphold that request. In paragraph 85 of its judgment in Case T-354/94  
         Stora Kopparbergs Bergslags v  
         Commission [2002] ECR II-843, the Court of First Instance, ruling on a referral back from the Court of Justice on an appeal, held that
          
         the risk that an undertaking which has been granted a reduction in its fine in recognition of its cooperation will subsequently
         seek annulment of the decision finding the infringement of the competition rules and imposing a penalty on the undertaking
         responsible for the infringement, and will succeed before the Court of First Instance or before the Court of Justice on appeal,
         is a normal consequence of the exercise of the remedies provided for in the Treaty and the Statute [of the Court of Justice].
         Accordingly, the mere fact that an undertaking which has cooperated with the Commission and which for that reason has been
         given a reduction in the amount of its fine has successfully challenged the Decision before the Community judicature cannot
         justify a fresh review of the size of the reduction granted to it.
         
         
         359
            
          It follows that the simple fact that an undertaking which has cooperated with the Commission by not disputing the substantial
         truth of the facts and has benefited from a reduction in the amount of its fine for that reason subsequently brings an action
         before the Court of First Instance cannot justify a fresh review of the size of the reduction granted to it. 
         
         
         360
            
          It follows that the action must be dismissed in its entirety. 
         
         Costs
         361
            
          Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay
         the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful and
         the Commission has applied for costs, the applicant must be ordered to pay the costs. 
         
         On those grounds, 
         
         
         
            
            THE COURT OF FIRST INSTANCE (Fifth Chamber)
         
         
          hereby:  
         
            
            1.
             Dismisses the application; 
            
            2.
             Orders the applicant to bear its own costs and to pay those incurred by the Commission. 
            
                  Cooke
               
               
                  García-Valdecasas
               
               
                  Lindh
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 11 December 2003. 
         
         
         
         
                  H. Jung 
               
               
                  P. Lindh  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
         
            
         
      
          1 –
            
             Language of the case: Greek.