C-57/69

THE COURT

composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi (Rapporteur), R. Monaco and P. Pescatore, Judges,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

within the EEC had also adopted, the Com­ opinion, ACNA had also participated. mission, in reliance on Article 11 of This letter contained a statement of the Regulation No 17 of the Council, re­ essential facts on which the Commission quested the undertaking in question to based its opinion. It accused ACNA of supply certain information. The letter made having taken part with other undertakings it clear that this request was made 'as part in a concerted practice for the purpose of of an examination of the question whether fixing the prices of dyestuffs based on it is appropriate to commence proceedings aniline, which, it said, led to increases in under Article 85 of the Treaty of Rome'. prices in 1964, in 1965 and in 1967. The Commission asked the undertaking ACNA replied to the Commission by to state inter alia whether the increase of letter of 28 February 1968, refuting the 15% which it had introduced in Italy, objections set out against it. Belgium and the Netherlands on dyestuffs At the beginning of 1968, officials of the intended for use in the tanning industry Commission visited ACNA's agents in was to be explained by the existence of an Belgium, France and the Netherlands, and, agreement, a decision, or a concerted on 14 February of that year, its officials practice between the different producers. again visited the registered office of ACNA In addition, the Commission asked the in Milan. By decision of 24 July 1969, the undertaking to state the reasons why it Commission, whilst accepting the fact did not introduce a similar increase for the that ACNA did not increase its prices in dyestuffs sold in France and Germany. Italy in 1965, that it was late in introducing By letter of 16 September 1964, ACNA the price increases of 1967 in Belgium, and replied to the Commission pointing out furthermore that its conduct had prevented amongst other matters that the price the introduction on the Italian market of increases on dyestuffs intended for the the increase envisaged by the other tanning industry had taken place on a producers in 1967, imposed on it a fine of variable basis, according to type, quantity 40 000 u.a. for the part which it had played and other factors affecting the various in the cartel which existed amongst the markets. ACNA stated that the different producers of dyestuffs in the Common trend of prices in the various countries Market.

In its statement of defence the defendant objects that the laws of the Member contends that the Court should: States differ considerably as regards the types of infringement which may be — Dismiss the application as unfounded; punished, the penalties applicable, limita tion periods, and measures which can — Order the applicant to bear the costs. interrupt or suspend those periods. The only criterion common to the national laws is the principle that a limitation III — Submissions and arguments period should attach to matters in respect of the parties of which a penalty may be imposed.

1964 information sent to ACNA in accordance with Article 11 of Regulation No 17 The applicant argues that the period which during the same year 1964, or by the elapsed between the date of the infringe inspections carried out during June 1965 ment in question (January 1964) and the by officials of the Commission authorized first measure of the Commission suspend to do so. For, it is argued, those inspections ing the effect of limitation (namely the were undoubted 'measures of inquiry and notice of 11 December 1967) exceeds any investigation' which suspend the period of limitation period laid down by the national limitation according to the legislation of laws which may reasonably be applied in three Member States. Finally, that period the Community context in the absence of a was again suspended on 31 May 1967 by specific provision on this subject laid down the decision to commence the procedure by Community law. In particular, that for establishing an infringement.

JUDGMENT OF 14.7.1972 — CASE 57/69

The this period is the shortest period laid down letter of May 1965 did not specify that the by the national laws, to apply it would visit announced therein had been decided accord with the principle which requires upon under Article 14 of Regulation No that in cases of doubt the solution most 17/62. favourable to the accused must be adopted. The defendant objects that the letter of 19 To do so would also make it possible to August 1964 addressed to ACNA con avoid possible difficulties at the level of stitutes a formal notice under Article 11 of national constitutional law so far as Regulation No 17.

It is for that tion, which is necessary on the subject of reason that the measures in question limitation. Finally, the shortest period should be considered as having been which may be taken into consideration capable of suspending the period of should at least be more than the period of limitation. three years laid down by the Member States having legislation on matters of 2. Infringement of essential procedural competition. requirements relating to the procedure The applicant argues, in the alternative, for establishing infringements under that even if the period of three years laid Article 85 of the Treaty down by Belgian and German legislation were to apply, that period has expired in The applicant argues that the Commission the present case, since the applicant has infringed the procedural provisions of received notice of the decision to com Regulation No 17 in that it served the mence the procedure only on 11 December notice of objections on it at the same time 1967, that is, more than 3 years after the as informing it of the commencement of facts, which date back to January 1964. the procedure for establishing an infringe Neither the request for information which ment; in that it undertook measures of was sent during August 1964, nor the inquiry after the notice of objections had visit to the offices of the applicant by been sent; and finally, in that it has not officials of the Commission during June produced evidence substantiating the objec 1965 can have suspended the period of tions concerning the specific conduct of the limitation because they did not constitute applicant. It is argued that these defects formal measures in the context of a are reflected in the final decision, as ap procedure brought against the applicant pears from the fact that on several points

ACNA v COMMISSION

question. Thus the defendant, it is argued, possible for it to be absolutely certain has disregarded the duty which is incumbent that the contested decision was not based upon it to communicate a specific notice of on subsequent documents or facts. objections, which results in a reversal of the burden of proof. The visits made after the notice was sent cannot, it is argued, have been intended to In particular, as regards the fact that the verify the statements made by the applicant Commission believed that it could deduce subsequent to that notice, since they took evidence of the concerted nature of the place before the applicant had replied. increases from the absolute duty on the The fact that the Commission wished to subsidiaries to refuse to issue antedated adopt a single decision with reference to invoices, the applicant points out that such ten undertakings is attributable to the way a refusal is in line with proper commercial in which the measure was prepared and practice which it has constantly followed. has nothing to do with its validity.

facts other than those complained of in the notice of 11 December 1967. Finally, Finally, the defendant observes that if the the fact that certain points in the decision applicant wishes to assert that the final concern only certain of the undertakings decision is based on documents obtained in question is not capable of invalidating by the Commission after the notice of the premises of the decision in relation to objections was sent, it must prove that the various addressees. assertion.

JUDGMENT OF 14.7.1972 — CASE 57/69

which are in any event covered by the ing its prices on the national market while effect of limitation. The decision admits as taking part at the same time in supposed regards that increase that the applicant concerted practices relating to other mar acted in Italy, in Belgium and in Holland kets which are of but little commercial after the increases decided upon by the interest to it. other undertakings had become effective or, As regards the increases of 1967, the con at all events, had already become known, tested decision states that they did not because notice of them had previously been take place on the Italian market and that given to the customers.

thereof. Furthermore, the text of the con practically impossible for users of dyestuffs tested decision shows that none of the on a given national market to order their factors leading to the conclusions as to the supplies from producers outside that existence of the alleged concerted practice market. This is due, inter alia, to the need may be imputed to the applicant under for continuous assistance to be given at taking. the appropriate time while the products

in question are in use, and to the need to to the many activities of the users. It is supply users quickly with products having asserted that there is a clear trend towards a multiplicity of characteristics occurring expansion in the dyestuffs market, as in many different kinds, and often in small appears from statistics of the OECD. quantities. In support of this proposition it Demand for the products in question is alleges that although in 1965 and 1967 it characterized by high mobility linked to did not take part in any increase in the intensity of competition, and by the prices, and therefore continued to charge fact that consumers hold low quantities in lower prices in Italy than those charged by stock and buy limited quantities as the its competitors on other markets, it did not need arises. Furthermore, the sector in receive a single order for supplies from the products in question displays a con customers in other Member States.

It is argued which American case-law also concentrates, that the increase decided upon the latter is of particular importance. Yet the pro presented the other undertakings with ducts in question are quite otherwise than very favourable opportunities for achieving homogeneous; about 6 000 different dye- a high rate of profit. They could have stuffs are in existence; of the undertakings adopted a pricing policy which, by means which took part in the agreement in ques of appropriate diversification of prices, tion, each applicant produces, it is said, would have given them excellent returns. a range of between 1 500 and 3 000 kinds, Therefore the different course of conduct of which some are protected by patents. which they adopted in conforming entirely Furthermore, continuing technical progress to the increases in question can only be contributes to this heterogeneity. A further explained, it is alleged, by prior concerta factor, together with the multiplicity, tion between the interested parties. heterogeneity, and rapid development of It is argued, that this conclusion is confirmed the products, is the lack of transparency by the fact that the instructions sent out of the market, which is yet further ag by the various producers concerning the gravated by the diversity of demand due increase in question were sent to Italy on

9 January 1964 and to Belgium a few days announced and is immediately made known later. It appears that those instructions to all competitors and all purchasers, a were drafted in very similar terms and certain interdependence exists between that they all coincide on the subject of the producers of dyestuffs. size of the increase, the exceptions to be The applicant stresses that for its part its made for certain products, the obligations prices were aligned not on those charged to apply the increase to all current orders, by other producers, but merely on the and the prohibition on granting exceptions increased percentages announced.

The alleged align increase prices as early as 9 January to its ment took place not only on the Belgian representatives on the Belgian market. market but also in other Member States, This fact, it is claimed, deprives the Com and the increase corresponded to that mission's argument of any probative value introduced by the undertakings controlling because ACNA's decision to raise its the largest share of the market in those prices may be explained quite simply as a countries (Bayer in Belgium, ICI in the legitimate reaction to the new situation on Netherlands, Ciba in Italy). Since the inter the market, of which it had objective changeability of the products is limited and knowledge. The undertakings concerned there is no transparency of market, the had an almost identical period available undertaking which increases its prices first within which to decide upon their conduct cannot, in the absence of a prior agree in the light of the increase announced by ment, be certain that its competitors will Bayer, and this is why their reactions were automatically adopt a parallel course of almost simultaneous. conduct. It is true that ACNA mainly It is asserted that the logic of the de produces interchangeable dyes, but in that fendant's argument would result in identify case equally, in an expanding market ing parallel conduct with a concerted characterized by differing relationships practice, and that this lightens the burden between sellers and buyers, disparities of of proof which is incumbent on it. costs and prices, continuous technical Moreover, it is said, the defendant s con progress and a difference in the degree to clusions are contradicted by the Kammer which productive capacity is used, it is gericht Berlin which held, in its judgment of inconceivable that all sellers should auto 28 August 1969, that it could not agree matically have aligned prices for all their with the interpretation of the Bundes products on the increases announced by a kartellamt, according to which it was competitor. This proposition is corrob highly improbable that the prices of all the orated, it is argued, by the attitude of the interested parties could have been in applicant itself, in that it did not follow the creased at the same time and by the same increase announced in 1965 by a number percentage without prior agreement. The of its competitors on the Italian market, a Kammergericht accepted the proposition fact which caused that initiative to fail. that when a general change in prices is Finally, the defendant points out that the

decision of 28 August 1969 of the Kam any reasonable alternative to a policy of mergericht Berlin was contested before the varying prices. The applicant points out Bundesgerichtshof on 13 October 1969 that as far as possible it has always pursued by the public prosecutor attached to the this policy, even after the increase of 1964. Kammergericht. That does not conflict, it is argued, with the decision to follow the general price 2. The situation on the Italian market and increase. The necessary precondition for the position of the applicant undertaking this 'articulated' policy was that the price movement should succeed on the market The applicant stresses that at the time in during that time. It was only thereafter, question its position was characterized by so it is said, that the optimal adjustments the following factors, which still subsist: envisaged by the Commission could have an irremediable imbalance in the relation been considered. ship between costs and profits occasioned The applicant expresses doubts as to the by the noticeable increase in costs and the evidential value of the statistics produced decrease in profits; a progressive deteriora by the defendant concerning consump tion in the undertaking's position on the tion and production of organic dyes and national market as a result of intense com the average gross hourly wages in the petition and of the highly critical situation chemicals industry. It is argued that it is existing in wide areas of demand; the improbable that the apparent consumption precarious position of the undertaking on shown in Table IA increased in Switzerland other Community markets and its lack of from $1.9 million in 1958 to 17.7 in 1963 ability to penetrate; the weak competitive and that from 1966 onwards consumption position of the undertaking's products, fell. Table IIA contains data obtained from which are fully exposed to competition, various sources, which renders a useful being almost exclusively dyes of standard comparison practically impossible.

and 1968, both in value and in quantity. tion, Tables IA and IB, which take the This is all the more relevant in that during year 1958 as their reference point, give a the course of the last few years average somewhat unrepresentative comparison, so prices conceded to buyers of imported it is said, of the trend in consumption for dyestuffs have fallen. Therefore, it is the years with which the Commission argued, the Commission's statement as to inquiries are concerned.

According to statistics of the confirm what the applicant has itself OECD, the average value of standard stated as regards its situation and that of products, comprising almost all products the production of dyestuffs in Italy in manufactured in Italy, is US $1.93 per kg, general. whereas in Germany, for example, that In its rejoinder, the defendant accepts that value is 3.70 and in Switzerland, 5.52. In the general expansion of the dyestuffs these circumstances, ACNA did not have market did not occur in Italy in 1965

but that on the contrary it has been found ficient, it is argued, to justify so severe a that there was a recession. Nevertheless, it penalty, taking into account also the fact points out that that has nothing to do that this was an isolated episode, which with the increase in question, which took occurred long ago. place at the beginning of 1964. The statis The defendant argues that the applicant tical data which it supplies, together with made a considerable profit from the in a table appearing in the rejoinder, are crease which it introduced in 1964 and alleged to show that until 1964 the market which also affected the national market. expanded progressively. Secondly, while admitting that ACNA derived less of an advantage from the

As regards its production which occurred in 1965 show economic dimensions, the applicant under that this statement by the defendant is taking first states that it is not a subsidiary unfounded. of Montecatini-Edison, as is wrongly stated in the decision, but an associated undertaking having its own freedom of IV — Procedure action and its own legal personality. The applicant then asserts that in 1968 its The procedure took the following course: sales represented some 25% of the total By order of 8 July 1970, the Court, having sales of dyestuffs in Italy during the period regard to the report of the Judge-Rappor

European Economic Community, accurate, the applicant alleges, to say that especially during the period 1964 to ACNA is comparable in size to the larger 1967, would it have been a practical undertakings operating in this sector. possibility, according to normal As for the gravity of the alleged infringe commercial criteria, for a producer ments, the applicant stresses the insignifi acting independently who wished cance of its exports within the common to increase his prices to do so market (in 1964, 0.2% of apparent con otherwise than by a general uniform sumption in the Netherlands and 1.4 % of and public increase, by fixing apparent consumption in Belgium; in different rates for each product in France, 0.6% in 1967). The presumed his individual relationships with infringement of 1964 alone was not suf- each customer?

(b) For a producer acting indepen acting independently could in principle dently, what advantages and dis have increased his prices on a variable advantages result from effecting a basis in relation to each customer and general and linear increase in each product. prices, as compared with an in crease differing in respect of each — An affirmative answer may also be given customer, product and market? The answer to this question is to be to the question whether it would have been a practical possibility for such a given both on the hypothesis that producer to increase his prices on a the producer is taking the initiative variable basis in relation to each in making an increase and on the customer and product, subject to the hypothesis that the producer is following proviso: the average increase faced with a general and uniform increase announced by a competitor. in prices that a producer acting in dependently could have achieved by means of a policy of differentiated (c) Taking into account in particular the degree of transparency of the prices in a given field would probably have been lower than the average market, are dyestuffs other than speciality dyes practically inter increase in prices achieved by a general changeable and, if so, to what ex and uniform price increase.

1970. him, the conclusion to be drawn is that during the period in question the By order of the same date the Court advantages to be obtained from a joined Cases48/69, 49/69, 51/69, 52/69, general and uniform increase in prices 53/69, 54/69, 55/69, 56/69 and 57/69 for were greater than the disadvantages. the purposes of the expert's report. ay order dated 13 November 1970 tne Court, having regard to the proposal — The appropriate answer to Question (c) made by common agreement between the is that the degree of interchangeability parties on the names of two experts, of dyestuffs varies: it ranges from instructed Horst Albach, Professor of products which are perfectly inter Business Management at the University changeable to products for which to of Bonn, and Wilhelm Norbert Kloten, all intents and purposes there is no Professor of Political Economy at the substitute. If, for the purposes of the University of Tubingen, to prepare the question asked, speciality dyestuffs are report jointly. those which are not interchangeable for The experts' joint report was lodged at the practical purposes, it can be said that Court Registry on 23 April 1971. The the proportion that they represent of experts summarized the results of their the total production of dyestuffs in report in the following terms: each of the undertakings concerned is

JUDGMENT OF 14.7.1972 — CASE 57/69

Observations on the experts' report were The parties presented oral argument at lodged at the Court Registry on 3 July the hearings on 28, 29 and 30 September 1971 by the applicant and on 21 June 1971 1971 and on 2 May 1972. by the defendant. During the course of the procedure Mr On 28 September 1971 the experts named Advocate-General Mayras replaced Mr by the Court took the oath in accordance Advocate-General Dutheillet de Lamothe, with Article 49(6) of the Rules of Proce­ deceased. He delivered his opinion at the dure. hearing on 2 May 1972.

Grounds of judgment

1 It is common ground that from January 1964 to October 1967 three general and uniform increases in the prices of dyestuffs took place in the Community.

2 Between 7 and 20 January 1964, a uniform increase of 15 % in the prices of most dyes based on aniline, with the exception of certain categories, took place in Italy, the Netherlands, Belgium and Luxembourg and in certain third countries.

3 On 1 January 1965 an identical increase took place in Germany.

— Badische Anilin- und Soda-Fabrik AG (BASF), Ludwigshafen, — Cassella Farbwerke Mainkur AG, Frankfurt am Main, — Farbenfabriken Bayer AG, Leverkusen, — Farbwerke Hoechst AG, Frankfurt am Main, — Société Française des Matières Colorantes SA, Paris, — Azienda Colon Nazionali Affini S.p.A. (ACNA), Milan, — Ciba SA , Basel,

— J. R. Geigy SA, Basel, — Sandoz Basel, and

— Imperial Chemical Industries Ltd. (ICI), Manchester.

7 It therefore imposed a fine of 50 000 u.a. on each of these undertakings, with the exception of ACNA, for which the fine was fixed at 40 000 u.a.

8 By application lodged at the Court Registry on 6 October 1969 the undertaking Azienda Colori Nazionali Affini S.p.A. (ACNA) has brought an application against that decision.

Submissions relation to procedure and to form

JUDGMENT OF 14.7.1972 — CASE 57/69

13 This complaint is therefore unfounded.

(b) The complaint relating to a continuation of inquiries following notification of the objections

14 The applicant believes that the Commission has infringed Regulation No 17/62 by continuing its inquiries relating to increases in the prices of the products follow­ ing communication of the notice of objections.

15 The Commission has the right and where appropriate the duty to institute fresh inquiries during the administrative procedure if it appears from the course of that procedure that additional investigations are necessary.

16 Such inquiries would render it necessary to send an additional statement of objec­ tions to the undertakings concerned only if the result of the investigations led the Commission to take new facts into account against the undertakings or to alter materially the evidence for the contested infringements.

20 Thus the Commission, it is said, has succeeded in reversing the burden of proof.

21 Finally, it is argued that the Commission has not put forward evidence concerning the specific conduct of the applicant.

22 In order to protect the rights of the defence during the course of the administrative procedure, it is sufficient that undertakings should be informed of the essential elements of fact on which the objections are based.

ACNA v COMMISSION

23 It appears from the text of the notice of objections that the facts taken into con­ sideration against the applicant were clearly stated therein.

24 That notice contains all the information necessary for deciding as to the objections put forward with regard to the applicant, in particular the circumstances in which the increases of 1964, 1965 and 1967 were announced and implemented.

30 The provisions governing the Commission's power to impose fines for infringement of the rules on competition do not lay down any period of limitation.

31 In order to fulfil their function, limitation periods must be fixed in advance.

The fixing of their duration and the detailed rules for their application come within the powers of the Community legislature.

32 Although, in the absence of any provisions on this matter, the fundamental requirement of legal certainty has the effect of preventing the Commission from indefinitely delaying the exercise of its power to impose fines, its conduct in the present case cannot be regarded as constituting a bar to the exercise of that power as regards participation in the concerted practices of 1964 and 1965.

JUDGMENT OF 14.7.1972 — CASE 57/69

33 Therefore the submission is unfounded.

38 The applicant also complains that the Commission has not produced valid evidence to the effect that it participated in concerted practices contrary to Article 85(1) of the EEC Treaty.

39 The contested decision states that prima facie evidence that the increase of 1964 took place as the result of concerted action is to be found in the facts that the rates introduced for that increase by the different producers in each country were the same, that with very rare exceptions the same dyestuffs were involved, and that the increases were put into effect over only a very short period, if not actually on the same date.

40 It is contended that that increase cannot be explained simply by the oligopolistic character of the structure of the market.

It is said to be unrealistic to suppose that without previous concertation the prin­ cipal producers supplying the common market could have increased their prices on several occasions by identical percentages at practically the same moment for one and the same important range of products including speciality products for which there are few, if any, substitutes, and that they should have done so in a number of countries where conditions on the dyestuffs market are different.

ACNA v COMMISSION

41 The Commission has argued before the Court that the interested parties need not necessarily have drawn up a common plan with a view to adopting a certain course of behaviour for it to be said that there has been concertation.

45 It is argued that the constant erosion of prices charged to customers shows that the uniform percentage of the increase did not attenuate open competition on the market in the products in question.

46 In 1964, the applicant confined itself, even on its national market, to following decisions to introduce increases already acted upon by its largest competitors.

47 It is argued that the statistics of the OECD, according to which production of dyestuffs in Italy in 1965 decreased by 20.7% in quantity and 20% in value, con­ firm these assertions.

48 Therefore, it is said, the Commission's general statement concerning the expansion of the dyestuffs industry cannot apply to the particular situation of the applicant.

JUDGMENT OF 14.7.1972 — CASE 57/69

The concept of a concerted practice

The characteristic features of the market in dyestuffs

54 The market in dyestuffs is characterized by the fact that 80% of the market is supplied by about ten producers, very large ones in the main, which often manu­ facture these products together with other chemical products or pharmaceutical specialities.

55 The production patterns and therefore the cost structures of these manufacturers are very different, and this makes it difficult to ascertain competing manufacturers' costs.

56 The total number of dyestuffs is very high, each undertaking producing more than a thousand.

ACNA v COMMISSION

57 The average extent to which these products can be replaced by others is considered relatively good for standard dyes, but it can be very low or even non-existent for speciality dyes.

64 According to the experts this dividing-up of the market is due to the need to supply local technical assistance to users and to ensure immediate delivery, generally in small quantities, since, apart from exceptional cases, producers supply their subsidiaries established in the different Member States and maintain a network of

agents and depots to ensure that user undertakings receive specific assistance and supplies.

65 It appears from the data produced during the course of the proceedings that even in cases where a producer establishes direct contact with an important user in another Member State, prices are usually fixed in relation to the place where the user is established and tend to follow the level of prices on the national market.

66 Although the foremost reason why producers have acted in this way is in order to adapt themselves to the special features of the market in dyestuffs and to the needs of their customers, the fact remains that the dividing-up of the market which

JUDGMENT OF 14.7.1972 — CASE 37/69

results tends, by fragmenting the effects of competition, to isolate users in their national market, and to prevent a general confrontation between producers throughout the Common Market.

72 In fact, from the number of producers concerned it is not possible to say that the Italian market in dyestuffs is an oligopoly in which price competition can no longer play a substantial role and in which the level of prices is fixed by conscious parallelism.

73 These producers are sufficiently numerous and some of them are sufficiently power­ ful to create a real risk that in times of rising prices some of them might not follow the general movement but might instead try to increase their share of the market by behaving in an individual way.

74 In fact it appears from ACNA's account of the situation on the Italian market in the years prior to 1964, which did not permit it to introduce price increases which had become necessary, that a general, uniform and spontaneous increase on that market was hardly conceivable.

ACNA v COMMISSION

75 Moreover, it is very significant in this context that by refusing to take part in the increases of 1965 and 1967 as regards the Italian market ACNA was able to prevent their being achieved.

76 Furthermore, the dividing-up of the Common Market into five national markets with different price levels and structures makes it improbable that a spontaneous and equal price increase would occur on most of the national markets.

82 Differences in rates encourage the pursuit of one of the basic objectives of the Treaty, namely the interpenetration of national markets and, as a result, direct access by consumers to the sources of production of the whole Community.

83 By reason of the limited elasticity of the market in dyestuffs, resulting from factors such as the lack of transparency with regard to prices, the interdependence of the different dyestuffs of each producer for the purpose of building up the range of products used by each consumer, the relatively low proportion of the cost of the final product of the user undertaking represented by the prices of these products,

JUDGMENT OF 14.7.1972 — CASE 57/69

the fact that it is useful for users to have a local supplier and the influence of transport costs, the need to avoid any action which might artificially reduce the opportunities for interpenetration of the various national markets at the con­ sumer level becomes particularly important on the market in the products in question.

84 Although every producer is free to change his prices, taking into account in so doing the present or foreseeable conduct of his competitors, nevertheless it is contrary to the rules on competition contained in the Treaty for a producer to cooperate with his competitors, in any way whatsoever, in order to determine a coordinated course of action relating to a price increase and to ensure its success by prior elimination of all uncertainty as to each other's conduct regarding the essential elements of that action, such as the amount, subject-matter, date and place of the increases.

ACNA v COMMISSION

90 Therefore this submission is unfounded.

The fine

91 The applicant argues as an alternative submission that the fine which has been imposed on it, which is little smaller than that imposed on the other undertakings, is in contradiction with the considerations to which the decision refers relating to the gravity and duration of the infringement, the circumstances in which it took place, and the relative size of the undertakings within the Common Market.

52 It is only as regards the increase of 1964 that the Commission has held that there was an infringement of Article 85.

93 On the other hand, the applicant played an important part in the success of that increase on the Italian market.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 85 and 173; Having regard to Regulation No 17/62 of the Council of 6 February 1962; Having regard to Regulation No 99/63 of the Commission of 25 July 1963; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Communities; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

JUDGMENT OF 14.7.1972 — CASE 57/69

THE COURT

hereby:

1. Reduces the amount of the fine imposed on the applicant by the Commission Decision of 24 July 1969 to 30 000 u.a.;

2. Dismisses the remainder of the application;

OPINION OF MR ADVOCATE-GENERAL MAYRAS

(See Case 48/69, p. 000)