C-49/92

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ber 1991. 2 The judgment under appeal 1982. More generally, for the greater part upheld in part the action for annulment of 1977-1983, the polypropylene market brought by the appellant company pur- was characterised by low profits or even suant to Article 173 of the EEC Treaty significant losses. (hereinafter the Treaty) against the Com- mission's decision of 23 April 1986 (here- inafter the polypropylene decision). 3That decision concerned the application of Arti- cle 85 of the Treaty in the polypropylene production sector.

2 — Case T-6/89 Enichem Anic v Commission [1991] ECR II-1623. 4 — First Regulation implementing Articles 85 and 86 of the 3 — IV/31.149 — Polypropylene, OJ 1986 L 230, p. 1. Treaty (OJ, English Special Edition 1959-1962, p. 87).

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sion on 23 April 1986, which has the (b) set "target" (or minimum) prices from following operative part: time to time for the sale of the product in each Member State of the EEC;

'Article 1 (c) agreed various measures designed to facilitate the implementation of such target prices, including (principally) temporary restrictions on output, the exchange of detailed information on their deliveries, the holding of local meetings and from late 1982 a system of "account management" designed to (The Companies)... Anic SpA... have implement price rises to individual infringed Article 85(1) of the EEC Treaty, customers; by participating:... in the case of Anic from November 1977 until about the end of 1982 or the beginning of 1983,...

(d) i n t r o d u c e d s i m u l t a n e o u s price increases implementing the said tar- gets; in an agreement and concerted practice originating in mid-1977 by which the producers supplying polypropylene in the territory of the EEC :

4. Fourteen of the fifteen companies which were the addressees of the decision, includ- ing Anic, brought an action for its annul- ment. At the hearing which took place from 10 to 15 December 1990, the parties pre- sented oral argument and answered ques- I I— Grounds of appeal tions from the Court.

5. In its abovementioned judgment of A — The existence of substantial proce- 17 December 1991, the Court of First dural defects vitiating the contested Com- Instance, after hearing the views of the mission decision Advocate General, upheld in part the action brought by Anic and reduced the fine which had been imposed on it. The Commission lodged an appeal with the 8. Anic considers that it has good grounds Court seeking partial annulment of the for believing that the Commission did not judgment of the Court of First Instance, observe the proper procedure in adopting review of the fine to be imposed on Anic the polypropylene decision. It relies in that and an order for costs against the latter. connection on the judgment of the Court of

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The disclosures made by the Commission's representatives at the hearing at first instance in the PVC case lead Anic to conclude that the procedural irregularities 9. The Commission claims that Anic's sub- found as a matter of fact by the Court of missions are inadmissible since they do not First Instance in that case are in all like- reveal any error of law in the judgment lihood to be found in the case of the appealed against. polypropylene decision at issue in these proceedings.

Indeed it maintains that its claim in that regard was properly put forward at the appellate stage 8 — It is doubtful whether any ground of appeal is in the end discernible in those arguments. in such a way as to be admissible under 9 — As stated, Anic relies in support of its arguments on a series of factual matters which were not before the Court of First Instance for a determination, because either they occurred after delivery of the judgment at first instance or they were not known to the applicant or to the Court of First Instance 5 — Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, during the whole of the procedure at first instance.

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B — Pleas based on the application of the opposed to an agreement, presupposes the competition rules existence of external market activity, of substantive conduct which constitutes a further element pointing to the existence of an infringement and giving concrete form to, if not substantiating, the content of the unlawful arrangements between the (1) Legal classification of the infringement undertakings.

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15. In the present case the concept of 17. Thus, the Court has held that: 11 agreement does not give rise to any pro- blems and has, moreover, been thoroughly elaborated in a whole series of cases. Under the Court's case-law, it is sufficient for an agreement to have as either its object or 'Article 85 draws a distinction between the effect a restraint on competition for there concept of "concerted practices" and that to be an infringement of the provisions of of "agreements between undertakings" or Article 85 of the Treaty. 10 of "decisions by associations of undertak- ings"; the object is to bring within the prohibition of that article a form of coor- dination between undertakings which, without having reached the stage where an agreement properly so-called has been 16. Problems arise, however, concerning concluded knowingly substitutes practical the definition of the term 'concerted prac- cooperation between them for the risks of tice'. The cases which have hitherto exer- competition. By its very nature, then, a cised the Court have exclusively involved concerted practice does not have all the situations in which the concerted practice elements of a contract but may inter alia was anticompetitive in its effect. The fol- arise out of coordination which becomes lowing conclusions may be drawn from the apparent from the behaviour of the parti- case-law: cipants' (emphasis added).

First, the point of departure of the judicial 18. None the less, it should be noted that reasoning is as a rule an evaluation of the not all conduct by an undertaking which discernible effect on the market. has a similar kind of effect on the market constitutes an infringement of Article 85:

and undertakings to which he makes offers 20. The question arises, therefore, whether, or sells. Although it is correct to say that under that case-law, the existence of an this requirement of independence does not effect on the market of successful coordi- deprive economic operators of the right to nation between the undertakings constitu- adapt themselves intelligently to the exist- tes an element of the concerted practice qua ing and anticipated conduct of their com- infringement under Article 85. In such a petitors it does however strictly preclude case is it possible to conceive of conduct any direct or indirect contact between such which is classifiable as a concerted practice operators, the object or effect whereof is merely by virtue of its object? And con- either to influence the conduct on the versely: what other meaning can 'practice' market of an actual or potential competitor have when it is considered that the infrin- or to disclose to such a competitor the gement is established merely by the fact of course of conduct which they themselves coordination, that is to say by the contexts have decided to adopt or contemplate and concerted action between undertak- adopting on the market' 12 (emphasis ings, without there being any effect on the added). market?

be established. However, in recent years Coöperatieve Vereniging 'Suiker Unie' UA and Others v Commission [1975] ECR 1663, paragraphs 173 and 174, also known as the 'Sugar' case. 13 — Those cases involved an indirect means of proof in the 14 — In fact, in Case 41/69 ACF Chemiefarma v Commission sense that the parallel or analogous conduct may be used [1970] ECR 6 6 1 , Advocate General Gand said in his as evidence of the existence of concertation, but is not Opinion that 'a concerted practice.

. . an objective criterion. . . situation within Mines and Rheinzink v Commission [1984] ECR 1679, the Common Market. However, an objective criterion, paragraph 20 and in Joined Cases C-89/85, C-104/85, which is basic to the concept of a concerted practice, m u s t C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 also be met.

38. Common Market.'

25. Consequently, the spirit of the rules on competition is broken once there has been contact between undertakings with a view to disclosure of the course of conduct 23. Allow me to explain: as has already, I which they contemplate adopting on the believe, clearly emerged, a literal interpre- market. At that point one is faced with a tation of Article 85 does not resolve that breakdown of the free-competition model aspect of the problem. Rather it permits of upheld by the Community provisions under several different constructions which how- which each undertaking individually plans ever lead to diametrically opposed results. the policy which it will adopt on the market What constitutes a concerted practice following its own appraisal of market whose 'object' is anticompetitive must in conditions. the end be determined on the basis of a reading of Article 85 as a whole which is such as to safeguard the rational coherence of that provision and, above all, with reference to the objective which the rules on competition seek to serve both generally and with specific regard to Article 85 (systematic and teleological interpretation). 26. The reasoning set out above ensures that a broader view be taken of the terms of Article 85, does not prejudice the protec- 15 — In his Opinion in Ahlström Osakeyhtiö and Others v tion afforded to competition and, in my Commission (cited above at footnote 13) Advocate General Darmon took a view contrary to those expressed view, represents the schematically correct above, considering that '... to take the view that de facto identical conduct forms part of the concept of concerted approach. By also including within the practices would lead to a particularly restrictive concep- tion of the Treaty, which is contrary to Article 85(c)' sphere of Article 85 concerted practices (p. 1489). which merely intend to affect competition,

27. At this juncture it is worthwhile dwell- ing on the term 'practice'. If, in the case of a 29. That acceptance of the purely 'objec- concerted practice, an infringement of tive' nature of the infringement, constituted Article 85 can also be established solely by participation in conduct which, on an on the basis of 'coordination' between the objective view, is anticompetitive, and the undertakings (that is to say solely on the failure to review the impact on the market basis of participation in the unlawful of the concertation, highlight as a decisive purpose of a given concertation), then the element in establishing illegality the content concept of 'practice' is independent of any of certain conduct and the conceptual effect on or activity in the market. In that difference between an 'agreement' and a context the substantive external element 'concerted practice'. For there to be an immanent in the concept of practice is identical with the concept itself.

market. Whatever action is taken is of necessity deter- mined by the concertation and in that way has a direct impact om competition. It is therefore irrelevant whether the conduct on the market has a specific purport, namely that which constituted the object of the concertation, or indeed whether that action had any impact (pp. II-941 to 942). In that way, the rationale of Article 85 coincides 28. However, I do not believe, given the with a literal construction of the letter of the provision objective pursued by the rules on competi- under which the term 'practice' means activity on the

. . applicant pursue the aim of eliminating in advance uncertainty about the future conduct of its competitors distinguishes between and contrasts de but also, in determining the policy which it intended to- follow on the market, it could not fail to take account, facto concertation or concertation in prac- directly or indirectly, of the information obtained during tice, on the one hand, and formal concerta- the course of those meetings. Similarly, in determining the policy which they intended to follow, its competitors were tion resulting from an agreement, on the bound to take into account, directly or indirectly, the information disclosed to them by the applicant about the other'. 16 Accordingly, the decisive factor in course of conduct which the applicant itself had decided upon or which it contemplated adopting on the market.' identifying an infringement of Article 85 However, in the context of this pan of the reasoning the continues to be in each case concertation in action on the market is not being considered as an element of the concerted practice. The Court of First Instance is the broadest sense. Once that is established, merely endeavouring to determine the anticompetitive nature of the concertation between the polypropylene the Objective existence' of the infringement producers. The matters to be taken into account of is proven, irrespective of whether it is necessity by every producer active on the market must be regarded as forming part of the area of its autonomy ceded to the cartel which in itself constitutes an infringement of

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'agreement', it is simply that a higher level pursue on the market. When, however, is of concertation between the parties is that autonomy lost? In the Court's judg- required, as evidenced by a consensus ad ment in Suiker Unie 20 it was held, as has idem between them. This finding is a already been stated, that what is required is natural consequence of the matters set out any direct or indirect contact between such above concerning an interpretation in keep- operators, the object or effect whereof is ing with the spirit of the rules on competi- either to influence the conduct on the tion. 18 market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to pursue or contemplate adopting on the market (paragraph 174). 30. Accordingly, it may be concluded that Accordingly, it is sufficient for there to be the concept of concerted practice/object is influence, by means of contact, on a not dependent on effect being given to it in competitor's conduct. The judgment the market. For an infringement of Arti- appealed against precisely follows that cle 85 of the Treaty to be made out, there criterion in holding that: 'Through its does not need to be any effect on trade participation in those meetings, it took either as a result of activities of the under- part, together with its competitors, in takings concerned stemming from the pre- concerted action the purpose of which ceding concertation, as is contended for on was to influence their conduct on the behalf of Anic, or simply the presence of market and to disclose to each other the those undertakings on the market. course of conduct which each of the producers itself contemplated adopting on the market. Accordingly, (...) the applicant pursue(d) the aim of eliminating in advance uncertainty about the future conduct of its competitors (and) could not fail to take 31. (ii) It is, moreover, necessary to deter- account, directly or indirectly, of the infor- mine the content which a concertation mation obtained (...)' (paragraphs 200 and must have in order to constitute unlawful 201 of the judgment appealed against). conduct under Article 85 of the EEC Treaty. 19

'In this case, the communications arise from the price announcements made to users. They constitute in themselves market 35. None the less, I do not believe that the behaviour which does not lessen each Court's judgment in the Woodpulp cases undertaking's uncertainty as to the future may be transposed to the generality of cases attitude of its competitors. At the time in which the question of the existence of when each undertaking engages in such concerted practices arises. That would cur- behaviour, it cannot be sure of the future tail the scope of the provision to an conduct of the others' (paragraph 64). unreasonable extent and with it the con- comitant protection of free competition. In fact, it is particularly doubtful whether an undertaking may acquire 'certainty' as to the conduct of its competitors, even if it has entered into an agreement with them on the matters concerned. In any event, that approach would create major problems as On the basis of that reasoning the Court regards proof of the concerted practice held that there had not been an infringe- since, in cases of exchange of information, ment of Article 85 of the Treaty in that such as the present case, there would have case. to be a presumption as to the reliability of the data and an unambiguous obligation to use the data communicated, which are all matters which are inconsistent with the 'flexible' concept of the concerted practice.

to the particular circumstances of the removed only in the case of certain of the Woodpulp case, for the specific case of undertakings. 23 indirect contact between the undertakings by means of price announcements to users. For that reason I do not believe that the dicta in Suiker Unie are undermined as 38. Of course it is extremely difficult to regards the other cases in which the ques- imagine situations in which there is no tion arises as to the existence of a concerted element of reciprocity in the broad sense of practice and direct and, a fortiori, secret the term. Indeed the rule is the establish- meetings have been found to have taken ment of a reciprocal relationship between place between the undertakings. The rele- undertakings with communications of ana- vant criterion continues to be whether the logous content being made in swift succes- object of the meetings is to influence the sion or indeed simultaneously. For exam- conduct on the market of a given under- ple, a situation could occur in which there taking (or undertakings) by lessening its (or are alternate unilateral announcements 24 their) uncertainty as to the conduct of or unilateral announcements dictated by competitors.

That argument does not go to the appraisal of the facts by the Court of First Instance, as the Commission contends, but concerns the question whether the facts as found are sufficient to warrant the legal conclusion that Anic Accordingly, the legal classification of the participated in a concerted practice at the relevant time. facts contained in the judgment at first Accordingly, the ground of appeal in that connection concerns the application to the facts by the Court of First instance is correct in that respect as well. Instance of the concept of 'concerted practice', and it is admissible for that plea to be raised at the appeal stage. But the judgment on the merits is dependent on the solution of the question now under examination.

context of this case. The question is whe- 24 — Certainly, alternate unilateral announcements in the final analysis satisfy the requirement of reciprocity, as Advocate ther a concerted practice is established General Darmon appears to accept in his Opinion in the abovementioned Ahlström case (see footnote 13 above), in where, in the context of contacts between which he also referred to the 'Containers' decision of the undertakings taking the particular form of Supreme Court of the United States which turned on similar matters of fact and law (see paragraph 81 of the provision of information, there is no Advocate General Darmon's Opinion in that case).

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corporate requirements or calculations of it removes the uncertainty, even of one of whatever kind. them, as to the conduct of competitors. 26 In that case, both the undertakings provid- ing information and the recipients thereof have participated in the 'concerted practice' on the supposition that the latter's involve- ment in the unlawful conduct may be 39. According to one view a 'precondition demonstrated or inferred. 27 of concertation is by definition reciprocity in the provision of information as between the competitors'. 25

42. To recapitulate, I would observe that: 40. None the less, I do not see why reciprocity must be deemed to be an element of the notion of concerted practice. What must be ascertained is whether there has been 'concertation' between undertak- ings and not whether that 'concertation' is based on reciprocity. In other words, what is relevant in each case is the ascertainment — the concept of 'concerted practice' does of contacts between competitors whose not necessarily presuppose the adop- object or effect is to lessen uncertainty as tion of any conduct on the market; to future initiatives on the market. Whether in that context information is communi- cated on the basis of reciprocity or not cannot, in my view, be regarded as a decisive factor.

— there may also be a 'concerted practice' 45. Secondly, at paragraph 205 of the where one competitor unilaterally pro- judgment appealed against it held that vides information to all the others. 'the Commission was (...) entitled to char- acterise that single infringement as "an agreement and a concerted practice" since the infringement involved at one and the same time factual elements to be charac- terised as "agreements" and factual ele- ments to be characterised as "concerted practices". Given such a complex infringe- ment, the dual characterisation by the Commission in Article 1 of the Decision (b) Whether conduct may be classified in must be understood not as requiring, law as both an agreement and a concerted simultaneously and cumulatively, proof practice that each of those factual elements presents the constituent elements both of an agree- ment and of a concerted practice, but rather as referring to a complex whole comprising a number of factual elements 43. Closely linked to the correct interpreta- some of which were characterised as agree- tion of the concept of concerted practice is ments and others as concerted practices for the question whether the Court of First the purposes of Article 85(1) of the EEC Instance, on the one hand, correctly cate- Treaty, which lays down no specific cate- gorised as a matter of law the individual gory for a complex infringement of this conduct of the undertakings as an 'agree- type.' ment' or 'concerted practice' and, on the other, whether it correctly classified their overall conduct as an 'agreement and concerted practice'.

47. It may be inferred, I believe, from elements presents the constituent elements paragraphs 11 to 30 above that the four both of an agreement and of a concerted categories of infringements of Article 85 of practice (...).' The two elements in Arti- the EC Treaty do not differ in their legal cle 85, notwithstanding the affinity which nature. What is relevant always is the they exhibit in the present case, may stand object or effect of the agreement or con- alone. Each single item of conduct may in certed practice. 28 It is that of object or the final analysis constitute either an agree- effect that evidence is chiefly sought in the ment or a concerted practice, but not both investigative procedure. Accordingly, the at the same time. 30 In that respect only the fact that the Court of First Instance cate- complex whole of individual items of gorised that conduct in the alternative as a conduct may be characterised as an 'agree- concerted practice, in relation to the con- ment and concerted practice.' cept of an agreement (paragraph 202 of the judgment at first instance), cannot be deemed to constitute a misinterpretation of Article 85.

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in the relevant meetings of polypropylene described, alternatively, as an agreement or producers and held that it was for Anic to concerted practice. 32 Against that back- provide evidence to the contrary. The ground it is useful on each occasion to company alleges that the Court of First elucidate the content of the conduct to be Instance erred in not deeming the fact that reviewed and its compatibility with the Anic did not apply the agreed price initia- rules on competition. tives to constitute such evidence. 31

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this emerges clearly from the terms in then for the other party to adduce further which the relevant paragraph of the judg- evidence in rebuttal of the inferences thus ment is couched — that it is theoretically drawn from the Commission's evidence. possible to participate in a meeting at which the other participants agree on an unlawful course of conduct without parti- cipating in the unlawful action itself. On that view of the matter it may be said that mere participation does not of itself suffice to give rise to collaboration and, thus, to an 57. Thus, in upholding the Commission's infringement of the rules on competition. 33 point of view, the Court of First Instance correctly allocated the burden of proof as regards the finding of an infringement by Anic, since the undertaking in question was at liberty to produce evidence in rebuttal.

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60. As I have already pointed out, the between that concept and the notion of relevant issue which had to be proved in 'collective responsibility'. the present case was the subject-matter of the successive meetings of polypropylene producers. Whether or not the decisions adopted at those meetings were acted upon cannot be used as evidence of non-partici- 62. It is to that issue that the whole of the pation in the unlawful activities in ques- Commission's submissions in support of its tion. Consequently, inasmuch as the Court appeal refer, as well as a major portion of of First Instance correctly based its conclu- Anic's cross-appeal. The convergence of the sions on the sole fact that price-fixing legal issues raised by both parties is con- initiatives were agreed (paragraphs 112 ducive to a joint examination of the and 113 of the judgment appealed against), arguments advanced which frequently are it did not contravene the rules on the no more than a rehearsal of the same burden of proof by not taking into account, arguments viewed from opposing view- as evidence of participation or not in the points. subject-matter of the meetings, Anic's sub- missions concerning the faithful implemen- tation or otherwise of what was agreed at those meetings. Thus, the submissions on this point cannot avail Anic. 63. First of all, it will be useful to set out paragraphs 203 and 204 of the judgment appealed against which are in the following terms:

Consequently, I consider that the ground of appeal under consideration must be dis- missed in its entirety. 'As regards the question whether the Com- mission was entitled to find that there was a single infringement, described in Article 1 of the Decision as "an agreement and concerted practice", the Court points out that, in view of their identical purpose, the various concerted practices followed and agreements concluded formed part of sys- (3) Correctness of the term 'single infringe- tems of regular meetings, target-price fixing ment' and quota-fixing.

continuous conduct, characterised by a sion decision to the extent to which it single purpose, by treating it as consisting deems Anic to be liable for certain of the of a number of separate infringements. The conduct constituting the 'single infringe- fact is that the applicant took part — over ment' (namely its participation, first, in the a period of years — in an integrated set of price initiatives in the second half of 1982, schemes constituting a single infringement, secondly in the restriction of their monthly which progressively manifested itself in sales in that period and, thirdly, in the both unlawful agreements and unlawful measures designed to facilitate the imple- concerted practices.' mentation of the price initiatives, see para- graphs 115, 178 and 127 of the judgment appealed against), the Court of First instance, in the Commission's view, mis- interpreted the polypropylene decision by inferring from it findings which it does not contain. At the same time, to deem Anic to (a) Parties' arguments be not liable for those various actions is, on the same reasoning, incompatible with the Court's appraisal to the effect that the Commission was entitled to conclude that 64. In its arguments the Commission the polypropylene producers' infringement dwells on the determination of liability in was in the nature of a 'single infringement' the case of each polypropylene producer on (paragraphs 203 and 204 of the judgment the basis that they had committed a 'single appealed against). The Commission takes infringement'. By using that term the the view that on this point the grounds of Commission is seeking principally to the judgment are in contradiction with its describe the whole of the unlawful agree- operative part. ments of the polypropylene producers over a relatively long period. In the Commis- sion's view, classifying the infringement as a 'single' one means that each producer is deemed liable for the whole of the unlawful 66. In sum, the Commission seeks annul- activity in respect of the period during ment of the judgment in so far as it deems which it participated in concerted action, Anic not to be liable for the infringement as whether or not it attended every one of the a whole during the period in which it meetings organised and had a part in the participated in it and on that ground various manifestations of the overall reduced the fine imposed. unlawful conduct. Proof of participation in the various unlawful actions is important only, the Commission says, for the purpose of determining the fine. 67. For its part, Anic also pleads a contra- diction between the grounds of the judg- ment and its operative part but, obviously, from a different angle. It claims that, since 65. The Commission emphasises that that the Court was of the view that its partici- is the purport of the matters set out in the pation at meetings of polypropylene pro- polypropylene decision at issue in this case. ducers was decisive in establishing its Consequently, by annulling the Commis- liability, the Court ought then to have held

(i) Personal nature of an undertakings' liability for infringements of Article 85 68. Anic amplifies its criticism of the judgment of the Court of First Instance by challenging the classification of the infrin- gement as a 'single one', principally owing 70. The specific nature of the facts of the to the effect thereof which, according to dispute and the description given to them Anic, is to attribute to it collective liability are at the heart of the legal issue raised by for the infringements committed. Anic the appellants in their pleas under exam- considers that conduct is being attributed ination. To designate the various, succes- to it in which it is not established as having sive and complex items of conduct by the taken part. The Court of First Instance is polypropylene producers by the term 'sin- thus disregarding, in Anic's view, the gen- gle infringement' is regarded by both par- eral principle of the personal nature of ties as having direct consequences as criminal liability, which is applicable by regards the precise determination of the analogy to the imposition of fines for liability to be attributed to persons infring- infringements of competition law. At the ing Community rules on freedom of com- same time Anic claims that the judgment is petition. The nature of that liability must based on inadequate reasoning since it does therefore be examined. not deal with the plea concerning collective liability.

71. Infringements of Article 85 are com- mitted by more than one trader unlawfully

72. It is none the less useful at this stage to comment on the distinction that exists 74. I think that the correct answer is as between, on the one hand, the fact that an follows: each undertaking can be held undertaking has fulfilled the factual liable only for its own acts. In other words requirements for the applicability of Arti- the principle of personal liability is to be cle 85 and, on the other, the imputation to applied: liability cannot be imputed to a that undertaking of the conduct concerned. person for infringements which he did not 'Participation' in the infringement is con- commit either singly or jointly or in which ceptually on a different plane from liability he was an accomplice. Of course it could be and precedes it in time. The final imputa- objected that this is a principle applicable tion of liability presupposes that a number at criminal law and that, in the present of requirements are met, and first of all the case, the Commission has no competence at substantive requirement that the unlawful criminal law. However, in my opinion the conduct has been committed. Liability decisive factor continues to be the fact that, (which determines the imposition of a within the framework of the powers con- fine 36) is founded only if the unlawful ferred on it by Article 15 of Regulation activity has been established and always in No 17 of the Council, the Commission is relation thereto. performing a function which is purely one of imposing penalties. 38

76. However, a proclamation of the perso- nal nature of liability does not automati- cally resolve the issue arising here. What 77. The contrary view whereby each under- precisely did each of the polypropylene taking would be deemed to have incurred producers do for which they must, conse- objective liability in abstracto within the quently, bear the corresponding liability? limits of the period during which it took The proper answer to that question is that part in the agreement, in respect of the the undertaking's personal liability stems entirety of the 'single infringement' com- from its participation in a series of meetings mitted by the polypropylene producers, and its involvement in the subject-matter of irrespective of whether it is established as each one of those meetings, to the detri- having taken part in each of the various ment of free competition. These actions, actions, belongs to the realms of deductive which are similar as to their legal nature logic and does not comply with the princi- (whether they took the form of agreements ple of personal liability. or concerted practices), 40 took place in a chronological series and were also inter- connected in the sense that they were all committed in pursuit of the same economic objective in a given economic situation. Nevertheless, as external occurrences, in a temporal and spatial setting, they retain their autonomy and specificity, especially (ii) Concept of 'single infringement' in the since their specific content is each time Court's reasoning different. Thus, in order precisely to deter-

to describe the overall conduct of the ment ceased, and the penalty to be imposed polypropylene producers, the Court of First on each participant is only in respect of the Instance did not impute collective liability whole of its unlawful conduct. in general to the undertakings involved or to Anic in particular. In other words, it did not contravene the principle of personal liability. 81. Consequently, categorisation of con- duct as constituting a single or continuing offence is based on facts the proof and legal categorisation of which is posited and

80. If this reasoning is followed the com- ing more than them. Since as a logical plex nature of the phenomenon in question, outcome it gives a precise overall picture, as as described, may be comprehended with far as possible, of the reality, the concept sufficient accuracy by use of the terms cannot, logically, be used ex post facto to 'continuing' or 'single' infringement. That conduct a separate legal appraisal of the designation is dictated, on the basis of the individual features of that reality. criminal law model, 4 2by the need for procedural rationalisation. Thus, inter alia, a uniform method for calculating the prescription is used, the starting point being the date on which the continuing infringe- 83. From that point of view, the fact that the Court of First Instance designated the conduct of polypropylene producers as a 42 — For the concept of continuing infringements, see Stephani, single infringement does not give rise to a Levasseur and Bouloc, Droit pénal general, 15thEd., Paris, 1994, p. 188 et seq. It should be noted that, although the

Accordingly, the term 'continuing infringement' is thus be artificial to split up such continuous legally more accurate than the expression 'single infringe- conduct, characterised by a single purpose, ment'. For the purposes of the present case both terms should be regarded as synonymous. by treating it as consisting of a number of

86. Viewed in that light, the Court of First Instance was entitled to arrive at the conclusion that 'the Commission has proved to the requisite legal standard each of the aspects of the infringement for the (iii) Whether the parties' arguments are duration of its participation in the system well founded of regular meetings of polypropylene pro- ducers and that it did not therefore attri- bute to the applicant liability for the 84. The plea relied on by the Commission conduct of other producers' (paragraph that the Court of First Instance misinter- 206 of the judgment appealed against). preted its decision makes sense, in the Consequently, the judgment at first context of appellate review, only if it is instance neither expressly nor indirectly deemed to be based on misapplication of imputed any 'collective liability'. the law. However, the Court of First Instance did not err on the issue of the liability to be attributed to Anic in the present case, pursuant to Article 85(1) of the Treaty.

89. It follows that the Court of First Instance correctly attributed to Anic liabi- lity in this case, without there being any 88. The line of argument put forward by discernible contradiction in the reasoning Anic is essentially based on the viewpoint underlying that attribution. Accordingly, that a decisive element taken into account the sole ground of appeal relied on by the for the purpose of describing the infringe- Commission and the grounds of appeal ment as a single one is the very existence of relied on by Anic referable to the relevant a system of periodic meetings. I do not paragraphs of the judgment given at first believe that to be a matter of such decisive instance must be rejected as unfounded. importance. The fact that the infringement is single stems, as I have already said, from the identical nature of the subject-matter and of the legal categorisation of the individual actions examined. In the present case, since those actions amount to agree- ments and concerted practices, the essential feature is that of coordination and con- certation. However, how that concertation (4) The allégation of discriminatory is to be effected in each case is of no (unequal) treatment importance. It may take place during meet- ings, by means of telephone conversations, the exchange of documents, a combination of those procedures or in any other way. Of course the fact and subject-matter of con- certation have to be proven. The fact that 90. Anic also argues that it received dis- in the present case the system adopted was criminatory treatment, inasmuch as the one of periodic meetings does not therefore Commission appealed against the judgment mean that a single infringement may cover at first instance concerning Anic, whereas it only the actual meetings. Any other con- refrained from doing so as regards that part duct constituting an infringement of Arti- of the judgment given by the Court of First cle 85 and pursuing the same objective of Instance in Shell v Commission 46 in which distorting the natural movement of poly- the fine imposed by the Commission was propylene prices may also be covered by also reduced, although in that judgment the the term 'single infringement'. Thus, the reasoning of the Court of First Instance, in imputation to Anic of liability in respect of determining the liability of the undertaking a period beyond the date on which it ceased to participate in meetings of polypropylene 45 — Once, of course, participation is proven, if not at the meetings, at least in the concertation undertaken. 46 — Judgment of 10 March 1992 in Case T-11/89 Shell v Commission [1992] ECR II-757, which was another in the 44 — On this plea see paragraph 37 et seq. above. series of Polypropylene cases.

94. The Commission's view is that this plea (5) Imputation of the infringement to Attic is couched in terms which are too general and is, therefore, inadmissible. Further- more, in its view, the Court of First Instance in no way applied that twofold criterion in attributing liability to Anic. It merely rejected Anic's allegations of discrimination 92. According to Anic's line of argument in favour of the Saga Petrokjemi under- on this point, the Court of First Instance taking. In that connection the Commission misdirected itself in adopting a twofold emphasises the fact that Saga Petrokjemi criterion in order to identify the under- was merged with Statoil and that the taking to which the infringement of Arti- latter's liability for the acts of the former cle 85 was to be imputed. More specifi- is a natural consequence of that merger. On cally, according to Anic, the court below, in the other hand, the transfer to Monte of attributing liability to it, alternately applied Anic's polypropylene department did not the criteria of legal continuity and of the signal the end of the latter's existence as a economic and functional continuity of the legal person. In that regard, the Commis- undertaking. In that way, according to sion contends that a distinction must be Anic, legal certainty is undermined, whilst drawn between a sector of production and the opportunity is given to undertakings, the whole of an undertaking. Anic operated either by merging with other undertakings in the market as a single undertaking and or by the sale of the whole of their business was not made up of the same number of to various buyers, to enjoy impunity for undertakings as production sectors con- any illegalities committed. tained within it. Also, it pursued a single

marketing strategy. Finally, the Commis- has legally ceased to exist (paragraph 237 sion points out that, as is stated at para- of the judgment appealed against). It is graphs 241 and 242 of the judgment, Anic specifically this part of the judgment which was never made liable for the acts of SIR. Anic is essentially challenging when it refers to a twofold criterion for attributing liability. However, its arguments, it seems to me, do not challenge, as I have already observed, the sole criterion in accordance 95. In raising this ground of appeal, Anic is with which liability was attributed to Anic: challenging the criterion adopted by the the company continued to exist as a legal Court of First Instance in order to 'identify person at the time when the administrative the natural or legal person who was penalties were imposed on it. Accordingly, responsible for the operation of the under- since Anic's arguments do not refer to the taking at the time when the infringement criterion in accordance with which liability was committed, so that it can answer for it' was attributed to it, they must be rejected (paragraph 236 of the judgment appealed as irrelevant. 47 against). As far as Anic is concerned, the Court of First Instance acknowledges that 'the legal person responsible for the opera- tion of the undertaking when the infringe- ment was committed continued to exist until the adoption of the Decision. The 98. On the other hand, when Anic alleges Commission was therefore entitled to hold that the Court of First Instance unlawfully it answerable for the infringement' (para- distinguished between its liability and that graph 238 of the judgment appealed attributed to other undertakings, it rightly against). highlights a flaw vitiating the judgment appealed against. However, it is sufficient to point out in this connection, as the Court of First Instance does at paragraph 239 of the judgment appealed against, that the 96. In light of the foregoing considerations, case of Saga Petrokjemi is different and the ground of appeal raised by Anic is cannot therefore be compared with Anic's relevant and in principle admissible only in case, since the former case is that of an so far as it concerns the imputation of undertaking which had ceased to exist qua liability to it, as described in the paragraph legal person at the time when the admin- of the judgment of the Court of First istrative penalties were imposed. Instance cited above.

(paragraph 241 of the judgment appealed ing the amount of the fine to be imposed, against). If an administrative procedure thus contravening the principle of personal concerning such acts had been instituted, liability. Finally, Anic asserts that, in order it would have been necessary to hold SIR to assess the gravity of its conduct, the itself answerable for any infringement Court of First Instance erroneously paid committed by it, since the legal person heed to information concerning its market which was responsible for the operation of share in the polypropylene sector which that undertaking when any infringement had been communicated to the Court by was committed continued to exist even the Commission. Apart from the fact that it though in liquidation (paragraph 242 of the was imprecise, that information referred to judgment). Therefore, it follows that, in the 1983, not 1982, the time when Anic's case of SIR, the Court of First Instance unlawful conduct ceased. What is more, applied the same criterion for attributing Anic's contention is that the Commission liability as it did in the case of Anic. was wrong to calculate the amount of its turnover on the basis of the Lira-Ecu exchange rate in force in 1982; it ought to have applied the exchange rate in force in 1986 when the fine was imposed on it. In light of the foregoing considerations, it follows that the reasoning followed by the Court of First Instance on the abovemen- tioned points is entirely correct. 101. In the Commission's view, Anic's argument concerning the limited duration of its involvement in the infringement must be rejected as inadmissible because it calls in question findings of fact made by the Court of First Instance. Anic's allegations (6) As to the fine concerning the Court's findings on the seriousness of the conduct at issue are, it says, likewise inadmissible because para- graph 280 of the judgment appealed 100. According to Anic, the Court of First against does not contravene the principle Instance ought to have further reduced the of personal liability. It is right that the amount of the fine imposed on it, owing to amount of the fines imposed should vary the fact the infringement established ceased depending on the seriousness of each under- in its case in June and not October 1982. taking's conduct. Moreover, Anic alleges that the Court of First Instance did not correctly appraise the seriousness of the infringement which it was said to have committed. First, it did not take into account the extremely limited 102. Furthermore, the Commission main- role played by Anic in the polypropylene- tains that, on adoption of the contested producers cartel. At the same time, in decision, it did not take into account the examining the effects of the infringement table showing market shares in the poly- (paragraph 280 of the judgment appealed propylene sector held in 1983 by the against), it failed to take into account the various companies. In any event, determi- individual conduct of Anic when determin- nation of fines is not, and cannot be, a

purely arithmetical operation. Finally, the court trying the case on its merits to review Commission maintains that Anic's turnover the manner in which the Commission is the same whether it is calculated in Lira assesses in each case the gravity of the or Ecus, the decisive factor from a legal unlawful conduct. Appellate review can point of view being the average equivalence only be intended to verify whether the of those two currencies in 1982. court trying each case on its merits gave proper consideration to all substantive factors in assessing the gravity of given conduct in light of Article 85 of the Treaty. However, such review does not extend to 103. It should, first of all, be pointed out the manner in which the Court of First that the possibility of imposing fines for Instance on each occasion assessed those infringement of Article 85(1) of the Treaty factors. is expressly provided for in Article 15(2) of Regulation No 17 of the Council. Under that provision the criteria to be taken into account in determining the amount of the fine are the seriousness of the infringement 106. In the present case the following and its duration. observation may be made: as I have already stated in an earlier part of my Opinion herein, 49 Anic's argument concerning the temporal limits of its involvement in the infringement of Article 85 committed by 104. Of those two criteria the one which the polypropylene producers must be needs to be further particularised is the rejected. criterion concerning the seriousness of the unlawful conduct. In that connection the Court has held that: 'the gravity of infrin- gements must be determined by reference to numerous factors such as, in particular, Anic takes the view that it is wrong in law the particular circumstances of the case, its to take into account the overall effects of context and the dissuasive element of fines; the infringement as the criterion for deter- moreover, no binding or exhaustive list of mining the fine imposed on it individually. the criteria which must be applied has been Yet there is a difference between the effects drawn up'. 48 brought about by conduct as described in Article 85(1) of the Treaty, which is the relevant issue in this case, and the more specific role played by each undertaking in the context of that conduct. 105. Against that background the Court of First Instance has sole competence as the

the infringement committed. Accordingly, market and its global turnover were eval- on a correct interpretation and application uated and used as criteria for determining of the relevant provisions of Community the fine imposed on it. Indeed those two law, and after holding that 'the effects elements are important in determining the taken into account by the Commission in size and financial significance of a given setting the general level of fines are not undertaking, so as to calculate subse- those resulting from the actual conduct quently the fine to be imposed on it. which an undertaking claims to have Moreover, Article 15(2) of Regulation adopted but those resulting from the whole No 17 provides that the fine imposed may of the infringement in which the under- not in any event exceed 10% of the turn- taking participated' (paragraph 280 of the over achieved during the financial year judgment), the Court of First Instance was preceding that in which the infringements of the view that those matters had properly were committed. been taken into consideration (paragraph 282).

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COMMISSION V ANIC

appraisal by the Court of First Instance and relevant period for determining the amount cannot be allowed on appeal. of the fine is the accounting period preced- ing that during which the infringement was committed. The logical consequence of that is that the conversion into ecus of the various currencies in which the turnover of 111. Finally, Anic alleges that the fine each undertaking is calculated must be imposed on it ought to have been calcu- effected on the basis of the parities in force lated on the basis of turnover as determined in the accounting period preceding that in in Ecus, in accordance with the average which the infringement was committed. Lira-Ecu equivalence in 1986.

Consequently, the determination reached 112. On that point I think that Arti- by the Court of First Instance in that regard cle 15(2) of Regulation No 17 is clear. is in accordance with the Community rules Under the terms thereof, fines are to be and thus lawful, and any arguments to the imposed in units of account (Ecus) and the contrary are ill-founded.

I I I— Conclusion

113. In light of all the foregoing, I propose that the Court should: