C-235/92

1 — Case T-14/89 Montedipe v Commission [1992] ECR II-1155. * Original language: Greek. 2 — IV/31.149 — Polypropylene, OJ 1986 L 230, p. 1.

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the application of Article 85 of the Treaty conferred by Article 14(3) of Council Reg- in the polypropylene production sector. ulation No 17 of 6 February 1962 3 (here- inafter 'Regulation No 17'), carried out simultaneous investigations in a number of undertakings operating in the polypro- pylene production sector. Following those investigations, the Commission addressed requests for information, under Article 11 of Regulation No 17, to the above compa- nies, and also to other related undertakings. From the evidence obtained during the I — Facts and course of the procedure course of those investigations the Commis- before the Court of First Instance sion concluded that, between 1977 and 1983, certain polypropylene producers, including Monte, had been acting in con- travention of Article 85 of the Treaty. On 30 April 1984 the Commission decided to open the proceedings provided for by 1. As regards the facts of the dispute and Article 3(1) of Regulation No 17 and sent the course of the procedure before the a written statement of objections to the Court of First Instance, the judgment under undertakings in contravention. appeal relates as follows: Before 1977 the west European polypropylene market was supplied almost exclusively by ten produ- cers, the largest of which was the appellant, with a market share fluctuating somewhere between 14.2 and 15%. At the time Monte held the relevant controlling patents which 3. At the end of that procedure, the Com- expired in most of the European countries mission adopted the abovementioned deci- between 1976 and 1978. After expiry of sion of 23 April 1986, which has the those patents seven new producers following operative part: appeared with substantial production capa- city. This was not accompanied by a corresponding increase in demand, with the consequence that demand did not match supply, at least until 1982. More generally, for the greater part of 1977- 1983, the polypropylene market was char- 'Article 1 acterised by low profits or even significant losses.

(a) contacted each other and met regularly (from the beginning of 1981, twice each month) in a series of secret meet- ings so as to discuss and determine their commercial policies; (e) shared the market by allocating to each producer an annual sales target or "quota" (1979, 1980 and for at least part of 1983) or in default of a definitive agreement covering the whole year by requiring producers to limit their sales in each month by reference to some previous period (1981, 1982).

(b) set "target" (or minimum) prices from time to time for the sale of the product in each Member State of the EEC;

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Article 3 the hearing and delivery of the judgment of the Court of First Instance in the related cases BASF and Others v Commission (hereinafter 'the PVC cases'. 4From that evidence it could be concluded, according to Monte, that the contested decision was The following fines are hereby imposed on vitiated by serious procedural defects in the the undertakings named herein in respect of examination of which a further review of the infringement found in Article 1 : the evidence was required. By its above- mentioned decision of 10 March 1992, the Court of First Instance, after hearing the views of the Advocate General once again, on the question arising, rejected the request for the oral procedure to be reopened, and rejected the application in its entirety.

(x) Montedipe, a fine of 11 000 000 ECU, or 16 187 490 000 Italian Lira (...)' 6. By an application lodged at the Registry of the Court of First Instance on 11 June 1992, Monte applied for revision of that judgment, which application was in its turn 4. Fourteen of the fifteen companies which rejected by an order of the Court of First were the addressees of the decision, includ- Instance of 4 November 1992. 5 ing the appellant, brought an action for its annulment. At the hearing which took place from 10 to 15 December 1990, the parties presented oral argument and answered questions from the Court.

9. In its first ground of appeal Monte challenges paragraph 391 and submits that the Commission's Polypropylene decision is vitiated by substantial formal defects which render it non-existent or, at least, null and I I— Admissibility of the intervention void. In particular, the appellant considers that the Court of First Instance infringed the rules governing the burden of proof which require the Court on every occasion to 'examine of its own motion whether the act contested before it is non-existent. In that connection it points out that, prior to 8. As regards the admissibility of the inter- delivery of the judgment appealed against, vention by DSM the same considerations the Press had announced the judgment of apply in principle as those set forth in the the Court of First Instance in the related relevant paragraphs of my Opinion in PVC cases in which it had been found, on Hüls. 6 It follows from that analysis that the one hand, that the procedure consis- the intervention by DSM in the present case tently followed by the Commission in is admissible in part only, inasmuch as the adopting its decisions was contrary to intervener supports the appellant in Community rules and, on the other, that requesting the Court to set aside the decisions adopted under that procedure judgment of the lower court and declare were non-existent. Furthermore, the repre- the Polypropylene decision non-existent. sentatives of the Commission in the PVC The other claims made by the intervener cases expressly acknowledged before the and the arguments which it relies on in Court of First Instance that the irregula- order to support other pleas by the appel- rities found were not confined to those lant do not call in any event for an cases but were characteristic of the whole examination as to whether they are well of the Commission's activity over a certain founded since they are inadmissible. period. The appellant considers that those matters constituted substantial evidence which ought to have prompted the Court 6 — Paragraphs 10 to 15 of my Opinion delivered on the same date in Case C-199/92 P. of First Instance to examine further whe-

ther the Commission's Polypropylene deci- first, it had not been drawn up in Italian at sion was non-existent. The Court of First the time of its adoption 7 and, secondly, it Instance, it is contended on behalf of underwent changes as to content between Monte, ought to have examined of its adoption and notification. In the appel- own motion the likelihood that the act lant's submission, the existence of the contested before it displayed the same abovementioned defects is an established formal defects as those identified for the fact. first time during the course of the proce- dure in the PVC cases. The obligation on the court determining the action to review of its own motion whether acts whose · lawfulness it is called on to examine are non-existent is, according to the appellant, a principle common to all the national legal systems and one which is applicable within the Community legal order. Consistently with logic, Monte maintains, the onus was not on it to prove the existence of the 11. For its part, the Commission considers formal defects in respect of which it made that the first ground of appeal is ill- submissions in its pleading of 6 March founded, particularly following delivery of 1992. The appellant states, moreover, that the Court's judgment in the PVC cases. 8 It it was not in a position to submit complete may be inferred from that judgment, evidence of the irregularities committed by according to the respondent, that the the Commission. Only the Court of First defects in respect of which Monte made Instance could request the Commission — submissions in its pleading of 6 March and ought to have done so — to produce 1992 did not render the act non-existent, the original of the contested decision in as it had erroneously maintained, but order for it to be determined whether the merely invalid. Accordingly, the Court of infringements alleged had in fact been First Instance correctly held in the judg- committed. A corresponding obligation of ment appealed against that the submission ex officio review is, in the appellant's view, going to non-existence was to be rejected. incumbent on the Court of Justice at the As regards Monte's submissions going to appeal stage. invalidity of the contested decision, the Commission contends that, even if they were made in admissible form in the reply, they must be rejected as ill-founded. At no stage of the administrative and judicial procedure in the polypropylene case were there found to have been the same infringe- ments of essential procedural requirements as in the PVC cases. The appellant's submissions in that regard are, in the 10. In its reply, Monte supplements its first Commission's view, unproven. ground of appeal by pleading, in addition to non-existence, nullity of the Commission decision at issue. In that connection it 7 — In breach of Article 3 of Regulation No 1/58 (OJ, English Special Edition 1952-1958 (Series I), p. 59). maintains that the Polypropylene decision 8 — Judgment in Case C-137/92 P Commission v BASF and is invalid in so far as it concerns it because, Others [1994] ECR I-2555.

10 — Where a party legitimately puts forward a series of factual 13. In any event, the paragraph of the matters in support of his view that the act before the Court of First Instance is non-existent, that Court is not bound by judgment appealed against in which the the legal categorisation attributed to those matters by the supposed formal defects in the Polypropy- party. If those matters found an infringement of an essential procedural requirement, which is to be reviewed lene decision, even if they exist, do not ex officio and entails the annulment of the contested decision, the Court of First Instance was under an render it non-existent is correct. On that obligation to examine those matters and is not relieved point I refer to what I said in the Hüls case 9 of the obligation to determine whether there is an infringement and to draw the necessary conclusions. in regard to the matters adjudged in the Moreover, in each case the applicant's basic claim is for the setting aside of the contested decision on the ground Court's PVC judgment which I believe that it is contrary to rules of Community law, irrespective of the guise under which the setting aside takes place. should also be followed in the present case. What is important, then, is that the court should examine, Consequently, the submissions as to non- by seeking the true interpretation of the pleadings before it for judgment, whether the contested decision is in actual existence made on appeal by Monte are ill- fact vitiated by the defects imputed to it by the applicant, irrespective of whether the latter uses them to plead non- founded and must be rejected. None the existence or nullity of the decision. less, in my view, the court trying the case on 1 1— It was for that reason, moreover, that that pleading sought its merits was under an obligation to the reopening of the procedure. 12 — See analysis at paragraphs 57 to 76 of my Opinion in Hüls which shows that those matters were, for the purposes of the provision in question, 'known' to the applicants since by diligent examination they could have deduced them 9 — Paragraphs 20 to 24. from the case-file.

(1) Failure to appraise certain matters precluding application of Article 85 (1) of According to the Commission, apart from the Treaty being inadmissible,14 that plea is ill-foun- ded, because the Court of First Instance did not base its finding of an infringement of the rules on competition solely on the 14. In the second ground of appeal Monte appellant's participation in meetings of the pleads misinterpretation and misapplica- polypropylene producers but on the sub- tion of Article 85(1) of the Treaty. Accord- ject-matter thereof, namely determination ing to the appellant, both the Commission of target prices and projected sales and the Court of First Instance misap- volumes. praised certain factors which either would have precluded the existence of an agree- ment or concerted practice as an explana- tion of Monte's conduct or, in any event, precluded that conduct from being unlaw- 16. In fact, in the words of paragraph 91 of ful. On thematic grounds I shall examine the judgment appealed against, the Court the eleven heads of claim put forward by of First Instance based its judgment as to the appellant on that point, which are the unlawful nature of the meetings of sometimes couched in imprecise terms, in polypropylene producers not only on the broad categories, using as criterion the

14 — The Commission contends that that plea is based on a 13 — See in that connection paragraphs 77 to 79 of my Opinion misapprehension of the judgment appealed against and is in Hüls. for that reason inadmissible.

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19. Similar arguments are put forward in 17. Monte maintains that the court trying relation to point (h) of the second ground the case on its merits erred by failing to of appeal concerning the Commission's have regard to a series of factors which allegations as to an artificial reduction in would have supported the finding that the supplies on the polypropylene market and appellant's conduct did not stem from an the establishment of a system of production unlawful agreement or concerted practice quotas as between producers. Referring to but merely amounted to individual action paragraphs 143, 199 and 200 of the dictated by conditions then prevailing on judgment appealed against, the appellant maintains that, in light of market condi- tions, any agreement of that nature was 15 — Under the terms of Article 168a of the Treaty and impossible. Article 51 of the EEC Statute of the Court of Justice, an appeal can only be on a point of law. Inadequacy of the reasoning on which the findings of the Court of First Instance are based may also be deemed to be a point of law and, in particular, an 'infringement of Community law' in the terms of Article 51 aforesaid of the EEC Statute of the Court of Justice. In the ground of appeal under consideration Monte is essentially pleading inadequacy of the reasoning under- 20. Of the same legal nature, moreover, is pinning the lower court's judgment with regard to the the appellant's head of claim under point finding of illegality. Accordingly, that ground of appeal is admissible. (e) of the second ground of appeal. In

21. The Commission also considers those three parts of the second ground of appeal to be inadmissible. It contends in particular 24. In the final two limbs of the second that, in its submissions under points (d) and ground of appeal which I shall now exam- (h), the appellant is seeking, by offering a ine complaints are made which are closely different explanation of its conduct from linked to the appraisal by the lower court that adopted by the Court of First Instance, of Monte's conduct and the consequences to place a different complexion on the drawn therefrom. At point (1) of the second meetings of polypropylene producers and ground of appeal, the appellant, referring thus to call in question findings of fact by to paragraphs 175 to 177 of the judgment the court trying the case on its merits. appealed against, contends that the Court of First Instance was wrong to regard as secret the data concerning Monte's level of production since access to that information was almost universally available. In the appellant's submission, for there to be an infringement of Article 85 of the Treaty, the Commission would have had to prove that 22. In the alternative, the Commission there had been an exchange of that infor- contends that the above submissions are mation between the polypropylene produ- ill-founded. In that connection it points out cers prior to its disclosure by other sources, that the Court of First Instance substanti- and that knowledge of it impeded competi- ated its conclusions (in particular in para- tion. graphs 128 to 137 and 175 to 202 respec- tively) as to the illegality of the subject- matter of the meetings of polypropylene 16— See judgment in Case C-354/92 P Eppe v Commission producers and the collaboration by Monte [1993] ECR I-7027, and orders in Case C-244/92 P Kupka-Floridi v ECSC (1993] ECR I-2041 and Case in those agreements. C-338/93 P De Hoe v Commission [1994] ECR I-819.

26. Finally, the appellant maintains at point (m) of the second ground of appeal that the Court of First Instance erroneously concluded, at paragraphs 253 and 254 of 29. In the present case and in regard, the judgment appealed against, that the primarily, to points (d), (e) and (h) of the conduct of the polypropylene producers abovementioned ground of appeal, I had any appreciable effect on trade observe that it is sought to call in question between the Member States. On that point the appraisal by the Court of First Instance the Commission once again raises an objec- as regards the content of the meetings of tion of inadmissibility, citing the Court's polypropylene producers, that is to say of abovementioned case-law. 17 the evidence. Monte is not arguing that the lower court distorted the natural meaning of the evidence submitted before it. Basing itself on the economic situation in the markets at the time of those meetings, it seeks to put forward its own interpretation

of the facts, giving them a different legal reviewable by the Court. 22 Indeed, as is complexion. More specifically the Court of apparent from the abovementioned Arti- First Instance made the following findings cle 51 of the EEC Statute of the Court of on the basis of its appraisal of the facts: Justice, and from Article 112(1)(c) of the first, that the subject matter of the meeting Rules of Procedure of the Court, the appeal of polypropylene producers was the deter- must clearly set, out the parts of the mination of target prices and sales volumes judgment appealed against and the legal (paragraph 91 of the judgment appealed arguments in support of the appeal. 23 against); secondly, that the appellant was amongst the producers which collaborated in endeavours to determine prices and target prices and sales volumes (paragraphs 137, 150 and 201 of the judgment appealed 31. I would observe that the calling in against). For its part, the appellant retorts question of the holding by the Court of that its conduct as regards prices and sales First Instance that the infringement in volumes could not but be autonomous in which Monte participated was capable of the light of market conditions. It does not having an effect on trade between the allege that the Court of First Instance erred Member States (paragraph 253 of the in applying the rules of law but that it did judgment appealed against) is supported not reach the same conclusion as Monte solely by a different appraisal of the facts from an appraisal of the facts. However, by the appellant and not on any legal defect that line of argument is tantamount to in the judgment appealed against. The seeking re-examination of the facts of the Court is thus being asked to reappraise case by the appellate jurisdiction and the facts of the case and to come to a consequently falls outwith the latter's com- different determination from that of the petence. 21 Court below. Accordingly, the submission in that behalf, in the terms in which it is framed, must be rejected as inadmissible.

should be recalled that, under Arti- tion of the application of Article 85(1) of cle 113(2) of the Rules of Procedure of the Treaty could arise. 25 the Court, the appeal cannot change the subject-matter of the proceedings before the Court of First Instance. The competence of the Court of Justice in hearing an appeal is limited to a review of the legal solution adopted at first instance on the basis of the valid pleas and submissions raised before 34. At point (a) of the second ground of the lower court. 24 In the present case I appeal, Monte submits that the Court of would observe that paragraphs 175 to 177 First Instance did not take into account, as of the judgment challenged by the appellant it ought to have done, the distortion of in the submission under consideration con- competition owing to factors other than the cerned the truth or untruth of information conduct of the polypropylene producers relating to sales volumes which were and, in particular, owing to the tripling of exchanged at the meeting of polypropylene oil prices (the raw material for polypropy- producers and not whether that informa- lene production) at the end of the 1970s, tion was secret or public. Moreover, the stemming from the abuse of its dominant pleadings at first instance do not reveal that position on the market by the oil cartel.

33. The appellant submits that the Court of First Instance erred in not accepting that 25 — At least that is the main thrust of the appellant's line of the arrangements which the polypropylene argument in that connection. Owing, however, to the producers came to were justified by the imprecise terms in which they are couched the submissions in that behalf are open to differing interpretations and circumstances with the result that no ques- approaches as will subsequently be seen. 26 — Judgment in Joined Cases 40/73 to 48/73, 50/73, 54/73, 111/73, 113/73 & 114/73 Suiker Unie and Others v Commission [1975] ECR 507, in Joined Cases 209-215/78 & 218/78 Van Landewyck and Others v Commission 24 — See Commission v Brazzelli Lualdi and Others (paragraph [1980] ECR 3125 and in Joined Cases 240/82 to 242/82, 59), and order in San Marco Impex Italiana v Commission 261/82, 262/82, 268/82 and 269/82 Stichting Sigaretten

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Treaty. Thus, the principle is also applic- what was examined in that case were the able in Community competition law that effects on competition of a Member State's there can be no damage to an asset if the legislation, a factor not relevant in the asset did not exist at the time of the present case, and on the other, that, in any damage. According to the appellant, under event, that decision was no longer applied that logic, consideration ought to have been in the subsequent judgments of the Court, given to the following circumstances under cited above, in Van Landewyck v Commis- which it deployed its activity during the sion and Stichting Sigarettenindustrie and relevant period. Whether, apart from the Others v Commission. At the same time the increase in prices of raw materials, owing Commission points out that an infringe- to the abovementioned abuse of its domi- ment of Article 85 of the Treaty cannot be nant position by the oil cartel, Monte's excused either by the fact that the Italian conduct was dictated, on the one hand, by Government gave instructions to Monte to the Italian Government which compelled it participate in the meetings of polypropy- to take part in the meetings of polypropy- lene producers or by the difficulties encoun- lene producers and, on the other hand, by tered in practice by those producers in the advantageous position in which pur- operating the agreed price initiatives. chasers of polypropylene were placed, which was the reason why, moreover, the objective of a reduction of the losses made by the undertakings in the sector was never achieved.

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polypropylene producers to sell at a loss. Instance did not take into account, as it By way of logical conclusion, endeavours ought to have done, the 'duty of reciprocal to reduce losses which, owing to market conduct as between undertakings com- conditions, were destined to fail could not pelled by necessity to sell at a loss.' The be deemed to be in contravention of the polypropylene undertakings wished to rules on competition. avoid selling at a price below cost lower than necessary. In that context the endea- vours to increase prices were intended to reduce losses and to avoid the specifically unlawful practice of 'predatory pricing'.

40. With further regard to Article 85(1) of the Treaty, the appellant submits at point (g) of the second ground of appeal, in which it refers to paragraphs 132 and 237 of the judgment appealed against, that the 38. At point (f) of the second ground of polypropylene producers were treated appeal, the appellant, referring to para- unfairly by the Court of First Instance to graph 295 of the judgment appealed the benefit of purchasers of that product. It against, submits that the Court of First states in that connection that the producers

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41. The Commission counters that the submission in that behalf, even if it were not held to be inadmissible on account of the general terms in which it is couched, is in any event ill-founded. Article 85 applies 43. That being the case and in light of the to undertakings which enter into agree- foregoing considerations, I consider that ments or concerted practices restrictive of only if the submissions in that behalf are competition and its application has the understood as putting forward a ground to natural consequence, in certain cases, of justify conduct which otherwise would fall favouring purchasers. Consequently, the within the scope of Article 85, can those Commission cannot see where the unfa- submissions be deemed to be admissible. vourable treatment lies. It adds, moreover, Conversely, if those same arguments were that the Court of First Instance correctly to be construed as an attempt by Monte to considered that the favourable situation of demonstrate that it did hot enter into purchasers in a certain sector of trade does not relieve sellers of the obligation to observe Article 85. 27 — As regards that second limb these submissions differ from those examined in the preceding section. In fact, from a legal point of view, a ground of appeal arguing that it could not have been the purpose of meetings of polypro- pylene producers to fix prices and sales volumes differs from a ground of appeal which does not cast doubt on the fact of that collaboration per se but relies on special circumstances which justify or necessitate agreements" between the undertakings. Only in the latter case does a point of law arise which is reviewable on appeal. 42. In the foregoing allegations the appel- 28 — Of significance in that connection is point (f) of the ground lant is claiming a misapplication by the of appeal where reference is made to the duty of fair Court of First Instance of Article 85 of the conduct as between undertakings obliged to sell at a loss. The Court of First Instance examines the whole issue from Treaty. According to that view of the the point of view of whether there may be any justificatory ground on which to preclude the unlawful nature of the matter, the Court of First Instance took 'participation' (see paragraph 296 of the judgment at first instance), whereas the appeal pleading refers generally and no account of, or at any rate misinter- in imprecise terms to 'endeavours' to increase prices. preted, a series of factors demonstrating Subsequently, however, in its reply, the appellant categori- cally repudiates any interpretation implying any admission that there was no, or at least no substantial, by it of having participated in the relevant mutual arrangements and states that, in any event, it adopted an restriction of competition as a result of the individual line of conduct which was dictated by factors conduct of polypropylene producers; con- existing at the time.

unlawful agreements with the other poly- competition was actually affected or, con- propylene producers, but determined its versely, was not affected or was even line of conduct individually, then it is favourably affected. What is therefore calling in question the appraisal by the required is an analysis of all the factors Court of First Instance of the facts and the which go to make up an economic net- plea in that connection would be inadmis- work, that is to say the market, and the sible. 2 9 influence of each of those factors.

stances. The focal point of the appellant's line of argument in that regard is its invocation of the rule of reason, of Amer- ican origin, and of the need to seek the ratio legis of the rules on competition. In accor- 45. The question accordingly arises as to dance with those two hermeneutic princi- whether the abovementioned interpretative ples, appraisal of the lawfulness of conduct approach finds any place in the Community which prima facie would appear to be legal order. In my view, the answer to that contrary to the rules on competition must question must be in the negative.

differences. On the one hand, American legislation has no provision analagous to 29 — As regards point (f) of the second ground of appeal, the following matters should be emphasized: At first instance Article 85(3) of the Treaty which intro- the appellant maintained that the need for 'fair conduct' between the polypropylene producers justified conduct contrary to Article 85 of the Treaty. That plea is purely legal in nature and may be reviewed on appeal. On the

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duces into European law a special proce- cases are referred to as per se infringements dure for legitimising conduct which other- of the rules on competition. 33 wise would constitute an infringement of the provisions on competition. Secondly, the USA constitutes a single market with a single currency and to that extent the need to introduce legal rules in order to safe- guard the free movement of goods is less 47. Inasmuch, therefore, as the undertak- imperative than in Europe. ings concerned have either not sought or have not succeeded in bringing themselves within the exceptions contained in para- graph 3 of Article 85 of the Treaty, the agreements entered into by them for the purpose of fixing prices and sales volumes, and the concerted practices to the same effect, are in themselves unlawful under Article 85(1).

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They result from the does with an exceptional case, must be rules of supply and demand and cannot, interpreted strictly. 35 The phenomenon of therefore, be used to justify agreements on national legislation negating competition prices, even if the producers participating must be regarded, from the standpoint of in the agreements sell at below cost. Community law, as entirely exceptional Secondly, the favourable market position and directly connected to the current stage of certain undertakings on account of those of European unification and the important conditions does not give their competitors role which rules of national law continue to the right to infringe Article 85.

law is concerned. Moreover, it is for the 50. In light of the foregoing I believe that competent Community bodies and not for the Court of First Instance correctly based individuals to adopt legal measures to deal its judgment solely on the subject-matter of with situations in which competition is the meetings of polypropylene producers in affected by the conduct of certain under- holding that the criteria for the application takings. 36 of Article 85(1) were satisfied. Likewise, it

(paragraphs 295 and 296 of the judgment strict when asked to acknowledge the existence of national at first instance) as well as Monte's other legislation which deprives undertakings of the possibility of freely shaping their activity and compels them to adopt pleas now under examination. conduct contrary to Community rules on competition; the most significant example of all is illustrated Dy Stichting and Others v Commission, cited above (footnote 25). There can be no doubt, moreover, of the liability of undertakings where their anticompetitive conduct is merely favoured by the national authorities (see judgments in Case 229/83 Leclerc and Others [1985] ECR 1, and Case 231/83 Cutlet and Others [1985] ECR 305. 36 — To hold otherwise would be indirectly to confer an individual right of 'self-determination' on undertakings In conclusion, the points of the second enabling them to take appropriate steps to deal with ground of appeal under examination must competitions of unfair competition caused by the conduct of their competitors. be rejected as unfounded in their entirety.

51. As regards this point, the appellant maintains that the Court of First Instance has introduced a new species of infringe- Consequently, the ground of appeal under ment of Article 85(1) of the Treaty in examination must be rejected as ill-foun- addition to those concerning agreements ded. and concerted practices expressly provided for in that article. That new species of infringement is described by the term 'common purposes' (paragraphs 105, 201 and 230 of the judgment appealed against) and is without legal foundation. Moreover, in the appellant's submission, the Court of First Instance erred in not basing its (2) Distribution of the burden of proof judgment as to the unlawfulness of the agreements of the polypropylene producers on whether those agreements had 'as their object or effect the prevention, restriction 53. In the third ground of appeal Monte, or distortion of competition' in the words referring to paragraphs 82, 86, 89, 129, of paragraph 85(1) of the Treaty, but 144, 146 and 149 of the judgment appealed examined instead the 'purpose' of those against, submits that the Court of First meetings, a criterion which is not laid down Instance infringed the rules governing the in the Community provisions. burden of proof, on the presumption of innocence of the accused person and of the personal nature of liability. At the same time, the Court of First Instance, in the appellant's submission, attributed to it non- existent admissions and, without any proof, accepted the existence of a common plan agreed by the polypropylene produ- cers and erred in dismissing Monte's plea that its conduct was dictated by pressures and threats from terrorist organisations. 52. I would merely state in that connection, The Court of First Instance was wrong, in with the Commission, that the Court of the appellant's submission, to take the view First Instance correctly applied the rules that the appellant itself admitted partici- contained in Article 85; on the one hand, it pating in all the meetings of polypropylene cites the 'common purpose' of the poly- producers and was also wrong to require it propylene producers as the factor from to provide another explanation of the which the existence of an agreement content of the meetings at which it parti-

cipated. In that connection the Court of between parties. Since the appellant's par- First Instance relies on minutes kept by ticipation in the meeting of the polypropy- Monte's representatives whose existence lene producers has been established and cannot be inferred from the existing evi- since minutes were available of the meeting dence. Thus, the Court of First Instance organised by ICI which was also involved reversed the burden of proof by adopting a in them, it was for Monte to provide a presumption of guilt equating participation different interpretation of the subject-mat- in a meeting with participation in all the ter of those meetings. The Court of First illegalities committed in the course of that Instance states in its judgment that Monte meeting. Furthermore, according to Monte, could have relied in that connection on the Court of First Instance accepted as minutes taken by its representatives and proven its participation in the account their relevant notes and records. leadership system, since the evidence pro- duced by the appellant to show that that system did not operate as far as it was concerned did not refer to all the customers for whom Monte had been designated account leader. In the appellant's submis- sion, the Commission bore the burden of proving that the account leadership system was in fact applied in practice. However, 55. Furthermore, the Commission main- seeking proof of the contrary from Monte, tains that the Court of First Instance, on the Court of First Instance incorrectly the basis of a set of evidence, found there to allocated the burden of proof. In addition, be an agreement between the polypropy- in the appellant's submission, the operation lene producers for the purpose of adopting of an independent pricing policy by it measures intended to put into effect the constitutes sufficient evidence of its non- price-fixing initiatives and thus there was participation in the initiatives for the no need for further evidence of the applica- determination of target prices and thus, it tion of that agreement to customers; the maintains, the Court of First Instance failed failure to give effect to the agreement in to draw the necessary conclusions from practice is legally irrelevant to the estab- that submission. lishment of the liability of the undertakings involved. By dint of the same reasoning, the difference between prices achieved on the market and agreed prices is inherent in the notion of target prices and does not con- stitute evidence that the appellant did not participate in the agreements in question.

which infringements of Article 85 are 58. In that context, it was for the Commis- established and, consequently, the appor- sion to prove that the meetings in question tionment of the burden of proof. The concerned the subject-matter in question. appellant's arguments turn on that ques- In that connection, it chiefly produced and tion, notwithstanding the wider scope indi- relied on minutes of meetings organised by cated in the title of that ground of appeal in ICI (see paragraphs 83 to 85, 128 and 144 the notice of appeal. 37 The criticism of the judgment appealed against). Thus, it levelled at the judgment at first instance is did not infer the subject-matter of the that it was inferred from the appellant's meetings from suppositions but from actual presence at meetings of the polypropylene evidence. At the same time the Commission producers that it participated in all the bore the burden of proving the participa- infringements. The lower court is then tion in those meetings of each one of the accused of reversing the burden of proof undertakings involved (see findings of the and the presumption of innocence by Court of First Instance at paragraph 82 of requiring the accused undertaking to prove the judgment appealed against), 39 which it both that the meetings in question dis- did. cussed other subjects and that it did not participate in the various individual infrin- gements. 59. By way of logical consequence, the appellant bore the burden of disproving the evidence adduced by the Commission by producing other evidence to show that it did not participate in the meetings in 57. It should be observed at the outset that question or attributing a different subject- in the present case the infringements of matter to them. The Court of First Instance Article 85 of the Treaty are constituted indicates that such evidence would have solely by the subject-matter of the meetings been constituted by 'specific evidence such of the polypropylene producers, which as notes taken by its own employees (that is were specifically the determination of tar- to say Monte's) or the testimony of those get prices and projected sales volumes. persons' (paragraph 86). This part of the That viewpoint is based, in my view, on a judgment appealed against makes it clear correct understanding of the concept of that the Court of First Instance was indi- 'concerted practice'. Under that approach, cating certain evidence which could have in certain circumstances, the concerted been relied on by Monte, though it did not practice may be equated with the concerta- of course determine whether such evidence tion itself with the result that for it to be existed. established there is no need for any sub- sequent market activity. 38

61. The Court of First Instance follows the same reasoning in connection with the 63. None the less, I believe that there is no finding of participation by each one of the place for that reasoning in cases such as the undertakings involved in the aforesaid present one in which the undertaking infringement. It draws from participation concerned was proved to have participated in meetings having an unlawful subject- in a series of meetings having an unlawful matter the conclusion that the undertakings subject-matter over a period of several concerned participated in the correspond- years. Proof of attendance at repeated ing agreements and concerted practices, meetings having the same unlawful sub- unless the undertaking concerned produces ject-matter is, moreover, sufficient in itself evidence in support of its plea to the for a finding that the Commission estab- contrary (paragraphs 129 and 144 of the lished to the requisite standard collabora- judgment appealed against). tion in the unlawful conduct. It is then for the undertaking to produce evidence cap- able of leading to the contrary conclusion.

agreed upon at the meetings of the poly- ducers target prices were determined and propylene producers. The failure to imple- measures were taken intended to facilitate ment those arrangements is put forward as the attainment of those prices (paragraphs evidence of non-participation in those 137 and 150 of the judgment appealed arrangements. In that way Monte is essen- against), it contravened no rule governing tially seeking to shift the legal basis of its the burden of proof by not having regard to argument based on a different interpreta- evidence of the collaboration or otherwise tion of the concepts contained in Article 85 in the object of the meetings in question, of the Treaty, particularly the concept of which are submissions going to the faithful 'concerted practice'. implementation or otherwise of the results of those meetings. Those submissions by the appellant are in fact devoid of rele- vance. Nor is the case altered by the fact that the target prices by their very nature are subject to derogations. What is relevant is the subject-matter of the agreements and the parties to them.

66. However, as has already been observed, 41 it is sufficient for a finding of illegality to show that the subject-matter of the meeting contravened competition rules. Whether or not the decisions taken at those meetings were implemented or not is a different issue and cannot be used as evidence of non-participation in the unlaw- 68. Finally, in light of the foregoing I do ful activities under consideration. not consider that the Court of First Instance reversed the presumption of innocence even on the supposition that that rule applied in the context of the present proceedings. 42 Since the Commission produced evidence

establishing the unlawfulness of the appel- that the infringement was continuous dur- lant's conduct, the subsequent judgment by ing the whole of the period between 1977 the Court of First Instance was not based and 1983; accordingly, the irregularities on mere supposition, as Monte seems to be under consideration were in part time- arguing. Moreover, for its part, the appel- barred. Secondly, the reasoning of the lant did not produce evidence of corre- lower court, the appellant submits, as to sponding weight such as to create reason- the fact of a single infringement is inade- able doubts as to the correctness of the quate. Thus, whilst the Court of First Commission's reasoning. Accordingly, and Instance recognises as a common feature in light of the foregoing, I consider that the of all the conduct under consideration the third ground of appeal must be rejected as pursuit of 'a single economic aim, namely ill-founded in its entirety. to distort the normal movement of prices on the market in polypropylene' (para- graph 237 of the judgment appealed against), the appellant maintains that the market situation could be regarded as anything other than 'normal'. At the same time, in Monte's submission, the Court of First Instance had insufficient evidence on (3) Prescription which to base its participation in the infringement during the whole period of its duration, in the same way as it did not clarify in how many meetings of polypro- pylene producers it took part and for which period the appellant participated. 69. In its fourth ground of appeal Monte, referring to paragraphs 236 and 237 of the judgment appealed against, alleges that the lower court erred in applying the provisions concerning prescription formulated in Council Regulation No 2988/74 concern- ing limitation periods in proceedings and the enforcement of sanctions under the 71. The Commission replies that the appel- rules of the European Economic Commu- lant's arguments in this regard are inad- nity relating to transport and competition missible since they go to the appraisal at (hereinafter 'Regulation No 2988/74'). 43 first instance of the facts of the case. It also refers to its observations in connection with the unlawful nature of the conduct in question.

the provisions on transport and competi- regards the issue of prescription. 45 That tion within the European Economic Com- much is to be expressly inferred from the munity are subject to a five-year prescrip- abovementioned provisions of Regulation tion period. Under Article 1(2) of Regula- No 2988/74. In that context the reasoning tion No 2988/74 that period begins to run on which the Court of First Instance based on the date on which the infringement was its judgment as to the fact of a single committed. As regards continuing infringe- infringement is a matter reviewable on ments the prescription period begins to run appeal. 46 only from the date on which the infringe- ment was brought to an end. Moreover, u n d e r Article 2(1) of R e g u l a t i o n No 2988/74, the prescription period is interrupted by any action taken by the Commission or by any Member State, acting at the request of the Commission, 74. The Court of First Instance essentially in order to establish or sanction the infrin- based its judgment in that connection on gement. The prescription period is inter- the common economic aim served by the rupted on the date on which the decision is activities of the polypropylene producers notified to at least one of the undertakings (paragraph 237 of the judgment appealed participating in the infringement; under against). It also emphasises the systematic Article 2(2) the interruption of the pre- nature of those activities and that the rule scription period applies to all the under- which was infringed was each time the takings participating in the infringement. 44 same (paragraph 236 of the judgment appealed against). As the Court of First Instance finally held, it was a single infrin- gement of the same legal rule by successive and repeated acts which served the same purpose and formed part of the same economic or, more generally, existential context. In my opinion that definition is correct. 47 Consequently, I do not consider that the judgment appealed against reveals 73. In the present case the appellant chal- any defects on this issue. lenges the reasoning on which the Court of First Instance based its judgment as to the fact of a single infringement. The classifi- cation of an infringement as a single one indeed relates to factual circumstances proof and legal classification of which are taken for granted, but it is not without 75. Moreover, I do not believe the appel- having its legal importance particularly as lant's observations to be of relevance in

regard to whether the market situation was (4) Amount of the fine 'normal' or not. That argument concerns the problem whether or not there was in the present case an infringement of Arti- cle 85 of the Treaty and does not go to the interpretation of the term 'single infringe- ment' or to the computation of the pre- 78. In its fifth ground of appeal, Monte scription period. Consequently, the plea in repudiates the reasoning of the judgment that behalf by the appellant must be appealed against and submits that the rejected as irrelevant. lower court failed to take into account, as it ought to have done, a number of criteria for calculating the amount of the fine imposed. In particular, in the appellant's submission, the Court of First Instance 76. Furthermore, the reasoning of the judg- failed to take into account the mitigating ment appealed against as to Monte's parti- circumstance which should have led to a cipation in the meetings of polypropylene reduction in the fine, namely the fact that producers is lawful. The judgment at first the infringement did not have any effect. In instance successively examines the duration that connection, Monte challenges para- and content of that participation. It was graphs 70, 347, 379 and 385 of the therefore correctly held at paragraph 237 judgment appealed against. Moreover, in of the judgment appealed against that the the appellant's submission, the Court of appellant 'took part — over a period of First Instance did not take into considera- years —' in a single infringement. Accord- tion in determining the fine the individual ingly, the ground of appeal in that connec- effect of the activity of that undertaking tion must be rejected, in regard to that limb over and above the global effect of the as well, as being unfounded. infringement in general. The appellant bases its reasoning on paragraph 254 of the judgment appealed against. Moreover, Monte maintains that the Court of First Instance ought to have had regard, in 77. Finally, the appellant's plea that the determining the amount of the fine, to the prescription period was not interrupted fact that the conduct of the polypropylene because the unlawfulness of the conduct producers could have been covered by the of the polypropylene producers was not exception provided for in Article 85(3) of established cannot avail it. The plea in that the Treaty. Finally, in the appellant's sub- connection, apart from being inadmissible mission, the Court of First Instance erred on appeal, is entirely unconnected with the by not directing its mind to whether it was issue of prescription. 48 correct to regard the 'deliberate' nature of the infringement as an aggravating circum- stance.

account in determining the fine the fact that the Court has held that 'the gravity of the price-fixing initiatives did not succeed infringements must be determined by refer- in their objectives, as is apparent from ence to numerous factors such as, in paragraphs 365 to 374 and 386 of the particular, the particular circumstances of judgment appealed against. At the same the case, its context and the dissuasive time, the Commission points out that element of fines; moreover, no binding or paragraph 70 of the judgment appealed exhaustive list of the criteria which must be against, on which Monte bases its allega- applied has been drawn up.' 49 tions, concerns the findings of an infringe- ment and not the appraisal of its gravity. Similarly paragraph 254 concerns the effect of trade on Member States as a result of the conduct of the polypropylene producers as a factor underpinning the unlawfulness of the conduct in question. Monte is therefore wrong to rely on that paragraph in support 81. In that context the Court of First of its plea that the individual responsibility Instance has sole jurisdiction to review the of each undertaking was not correctly manner in which the Commission in each considered for the purpose of determining case appraises the gravity of the unlawful the fine imposed. Finally, the Commission conduct. The matters for review by the raises an objection of inadmissibility appellate jurisdiction are merely whether against Monte's arguments that regard the Court trying the substantive issues had ought to have been had to a certain number regard to all the factors which were essen- of further factors for the purpose of deter- tial in that case in appraising the gravity of mining the fine. In that connection it relies the conduct in the light of Article 85. on Article 113(2) of the Rules of Procedure Appellate review does not extend to cover of the Court which precludes pleas from the appraisal by the Court of First Instance being raised for the first time at the of the facts as found in that connection. appellate stage.

one hand, the fact that the unlawful achieve their objective. In that connection conduct did not produce any effects in the Court of First Instance held that 'the practice and, on the other, the individual Commission rightly took full account of the part played by the appellant in the com- first type of effect and that it took account mission of the infringement. of the limited character of the second type of effect. In that regard, it must be noted that the applicant has not indicated in what way the limited character of the second type of effect was not sufficiently taken into account in mitigation of the amount of the

84. Moreover, the appellant is misconstru- States, that is to say with one of the ing paragraphs 365 to 374 of the judgment essential preconditions for establishment appealed against which expressly refer to of an infringement laid down in Arti- the appraisal of the effects of the infringe- cle 85(1) of the Treaty; the argument is ments, distinguishing between two specific thus not germane to the question of deter- effects: first, that the target prices were mination of the fine. Thus, the plea in that used as the basis for transactions with behalf cannot avail the appellant.

. .) — the role period by the undertaking active in the polypropylene played by each of the undertakings in the sector. That question, though it is closer in logic to the question of market conditions, is manifestly extraneous to collusive arrangements (. . .) it must be noted the effects which the infringement of Article 85 had and the plea in that behalf is thus also not relevant. that, since the statement of reasons relating

Accordingly, the appellant's plea alleging failure to take into account the individual 87. Finally, the appellant's plea that the part played by it in the infringement must Court of First Instance erred in not exam- be rejected as inadmissible. 52 ining whether it was correct also to take account as an aggravating circumstance of the 'deliberate' nature of the infringement is unfounded. As is apparent from para- graphs 357 to 364 of the judgment 86. As regards the remaining pleas raised appealed against, the lower court upheld by Monte, the Commission's objection of the Commission's finding that Monte acted inadmissibility falls to be examined first. I intentionally. The 'deliberate' nature of the shall now examine the plea that the Court infringement is relevant for the purpose of of First Instance should have taken into determining the part played by Monte in account, in determining the amount of the the unlawful acts found to have been fine, the fact that the conduct of the committed. According to the Court of First polypropylene producers could have been Instance, the part played by the Commis- covered by the exemption provided for in sion was taken into account by the Com- Article 85(3) of the Treaty. In fact reliance mission in calculating the amount of the was placed on that provision at first fine. Accordingly, the Court of First instance but only as a ground excluding, Instance adjudicated, albeit tacitly, on the according to Monte, application of Arti- issue raised by the appellant, and its cle 85(1) (see in that connection para- adjudication is correct. 53 graphs 267 to 273 of the judgment). It does not appear, however, that any such

(1) Dismiss in its entirety the appeal brought by Montecatini SpA;

(2) Dismiss the intervention;

(3) Order the intervener to pay its costs;

(4) Order the appellant to pay the remainder of the costs.

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