A. Ahlström Osakeyhtiö and others v Commission of the European Communities.
Date: 1993-03-31
13 Pulp producers commonly concluded with their customers long-term supply contracts which could last for up to five years. Under such contracts, the producer guaranteed his customers the possibility of purchasing each quarter a minimum quantity of pulp at a price which was not to exceed the price announced by him at the beginning of the quarter. The customer was free to purchase more or less than the quantity reserved for him and could negotiate reductions in the announced price.
14 "Quarterly announcements" constituted a well-established trading practice on the European pulp market. Under that system, some weeks or, at times, some days before the beginning of each quarter, producers communicated to their customers and agents the prices, generally fixed in dollars, which they wished to obtain in the quarter in question for each type of pulp. The prices varied according to whether the pulp was to be delivered to ports in northwest Europe (Zone 1) or to Mediterranean ports (Zone 2). The prices were generally published in the trade press.
42 In the light of those arguments, it is necessary to ascertain whether in this instance the statement of objections was couched in terms that, albeit succinct, were sufficiently clear to enable the parties concerned properly to take cognizance of the conduct complained of by the Commission. It is only on that condition that the statement of objections could have fulfilled its function under the Community regulations of giving undertakings all the information necessary to enable them to defend themselves properly, before the Commission adopts a final decision (see, on that point, the judgments in Case 45/69 Boehringer Mannheim v Commission [1970] ECR 769, Case 52/69 Geigy v Commission [1972] ECR 787, Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie v Commission [1975] ECR 1663, Case 27/76 United Brands v Commission [1978] ECR 207 and Case 85/76 Hoffman-La Roche v Commission [1979] ECR 461).
63 According to the Court' s judgment in Suiker Unie (cited above, at paragraphs 26 and 173), a concerted practice refers to a form of coordination between undertakings which, without having been taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them. In the same judgment, the Court added that the criteria of coordination and cooperation must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the Common Market.
71 In determining the probative value of those different factors, it must be noted that parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct. It is necessary to bear in mind that, although Article 85 of the Treaty prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors (see the judgment in Suiker Unie, cited above, paragraph 174).
135 In adjudicating on that infringement, it must be borne in mind that, according to the case-law of the Court (see the judgment in Hoffman-La Roche, cited above), in order to comply with the rights of the defence, the undertakings concerned must have been afforded the opportunity, before the Commission adopts its decision, to make known their views on the allegations made against them and on the documents on which those allegations are based.
146 That argument is not material to the assessment of this infringement. The fact that a trader who was in a position similar to that of an applicant was not found by the Commission to have committed any infringement cannot in any event constitute a ground for setting aside the finding of an infringement by that applicant, provided it was properly established.
197 That argument cannot be upheld. Where an undertaking has acted in breach of Article 85(1) of the Treaty, it cannot escape being penalized altogether on the ground that another trader has not been fined, when that trader' s circumstances are not even the subject of proceedings before the Court.