T-337/94

JUDGMENT OF 14. 5. 1998 — CASE T-337/94

J U D G M E N T O F T H E C O U R T O F FIRST INSTANCE (Third Chamber, Extended Composition) 14 May 1998 *

In Case T-337/94,

Enso-Gutzeit Oy, a company incorporated under Finnish law, with its registered office in Helsinki, represented by Ivo Van Bael and Jean-François Bellis, of the Brussels Bar, and by Ciarán Keaney, Solicitor of the Law Society of Ireland, with an address for service in Luxembourg at the Chambers of Freddy Brausch, 11 Rue Goethe,

applicant,

ν

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Third Chamber, Extended Composition),

composed of: B. Vesterdorf, President, C. P. Briet, P. Lindh, A. Potocki and J. D. Cooke, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing which was held from 25 June to 8 July 1997,

gives the following

Judgment

3 G D grade cartonboard (hereinafter ' G D cartonboard') is white-lined chipboard (recycled paper) which is normally used for the packaging of non-food products.

4 G C grade cartonboard (hereinafter ' G C cartonboard') is cartonboard with a white top layer and is normally used for the packaging of food products. G C carton- board is of higher quality than G D cartonboard. During the period covered by the Decision there was normally a price differential of approximately 30% between those two products. High quality G C cartonboard is also used, but to a lesser extent, for graphic purposes.

5 SBS is the abbreviation used to refer to cartonboard which is white throughout (hereinafter 'SBS cartonboard'). The price of this cartonboard is approximately 20% higher than that of G C cartonboard. It is used for the packaging of foods, cosmetics, medicines and cigarettes, but is designated primarily for graphic uses.

6 By letter of 22 November 1990, the British Printing Industries Federation ('BPIF'), a trade organisation representing the majority of printed carton producers in the United Kingdom, lodged an informal complaint with the Commission. It claimed

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1 1 The Commission therefore decided to initiate a proceeding under Article 85 of the Treaty. By letter of 21 December 1992 it served a statement of objections on each of the undertakings concerned. All the addressees submitted written replies. Nine undertakings requested an oral hearing. A hearing was held on 7, 8 and 9 June 1993.

12 At the end of that procedure the Commission adopted the Decision, which includes the following provisions:

'Article 1

Buchmann G m b H , Cascades SA, Enso-Gutzeit Oy, Europa Carton AG, Finn- board — the Finnish Board Mills Association, Fiskeby Board AB, Gruber & Weber G m b H & C o KG, Kartonfabriek "de Eendracht N V " (trading as BPB de Eendracht NV), N V Koninklijke K N P BT N V (formerly Koninklijke Neder- landse Papierfabrieken NV), Laakmann Karton G m b H & C o KG, Mo Och Domsjö AB (MoDo), Mayr-Melnhof Gesellschaft mbH, Papeteries de Lancey SA, Rena Kartonfabrik A/S, Sarrió SpA, SCA Holding Ltd (formerly Reed Paper & Board (UK) Ltd), Stora Kopparbergs Bergslags AB, Enso Española SA (formerly Tampella Española SA) and Moritz J. Weig G m b H & C o KG have infringed Article 85(1) of the EC Treaty by participating,

in an agreement and concerted practice originating in mid-1986 whereby the sup­ pliers of cartonboard in the Community

— met regularly in a series of secret and institutionalised meetings to discuss and agree a common industry plan to restrict competition,

— agreed regular price increases for each grade of the product in each national currency,

— planned and implemented simultaneous and uniform price increases through­ out the Community,

— reached an understanding on maintaining the market shares of the major pro­ ducers at constant levels, subject to modification from time to time,

— increasingly from early 1990, took concerted measures to control the supply of the product in the Community in order to ensure the implementation of the said concerted price rises,

(...)

(iii) Enso-Gutzeit Oy, a fine of E C U 3 250 000;

(...)'

13 According to the Decision, the infringement took place within a body known as the 'Product Group Paperboard' (hereinafter 'the PG Paperboard'), which com- prised several groups or committees.

1 4 In mid-1986 a group entitled the 'Presidents Working Group' (hereinafter 'the PWG') was established within that body. This group brought together senior rep- resentatives of the main suppliers of cartonboard in the Community (some eight suppliers).

15 The PWG's activities consisted, in particular, in discussion and collaboration regarding markets, market shares, prices and capacities. In particular, it took broad decisions on the timing and level of price increases to be introduced by producers.

20 According to the Decision, the applicant, Enso-Gutzeit O y (hereinafter 'Enso- Gutzeiť), which produces only SBS cartonboard, participated in the meetings of the P C . It was also a member of the Nordic Paperboard Institute (hereinafter ' Ν Ρ Γ ) . The Commission considered that the applicant had participated in the infringement referred to in Article 1 of the Decision from mid-1986 until April 1991.

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Procedure

21 The applicant brought this action by application lodged at the Registry of the Court on 14 October 1994.

22 Sixteen of the eighteen other undertakings held to be responsible for the infringe­ ment have also brought actions to contest the Decision (Cases T-295/94, T-301/94, T-304/94, T-308/94, T-309/94, T-310/94, T-311/94, T-317/94, T-319/94, T-327/94, T-334/94, T-338/94, T-347/94, T-348/94, T-352/94 and T-354/94).

possible joinder of Cases T-295/94, T-304/94, T-308/94, T-309/94, T-310/94, T-311/94, T-317/94, T-319/94, T-327/94, T-334/94, T-337/94, T-338/94, T-347/94, T-348/94, T-352/94 and T-354/94 for the purposes of the oral procedure. At that meeting, which took place on 29 April 1997, the parties agreed to such a joinder.

27 By order of 4 June 1997 the President of the Third Chamber, Extended Composi­ tion, of the Court, in view of the connection between the abovementioned cases, joined them for the purposes of the oral procedure in accordance with Article 50 of the Rules of Procedure and allowed an application for confidential treatment submitted by the applicant in Case T-334/94.

28 By order of 20 June 1997 he allowed an application for confidential treatment sub­ mitted by the applicant in this case which related to a document produced in response to a written question from the Court.

29 Upon hearing the report of the Judge Rapporteur, the Court (Third Chamber, Extended Composition) decided to open the oral procedure and adopted measures of organisation of procedure in which it requested the parties to reply to certain written questions and to produce certain documents. The parties complied with those requests.

30 The parties in the cases referred to in paragraph 26 above presented oral argument and gave replies to the Court's questions at the hearing which took place from 25 June to 8 July 1997.

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32 The Commission contends that the Court should:

— dismiss the application;

— order the applicant to pay the costs.

The application for annulment of the Decision

33 In support of its head of claim seeking annulment of the Decision in so far as it concerns itself, the applicant relies on four pleas alleging (a) that SBS cartonboard should have been excluded from the scope of the Decision; (b) that there is no proof of its participation in an infringement of Article 85(1) of the Treaty; (c) infringement of Article 190 of the Treaty; and (d) infringement of its rights of defence.

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36 First it disputes the assertion in point 121 of the Decision that appendix 102 to the statement of objections, a note obtained from Rena allegedly relating to a meeting of the N P I at Arlanda airport (Sweden) on 3 October 1988, is evidence of its par­ ticipation in the unlawful practices referred to in the Decision. Relying on an invi­ tation (appendix 101 to the statement of objections) to an extraordinary board meeting of the N P I , the Commission concluded that this note concerned that meeting. However, there is nothing in the note to show that it related to the meet­ ing referred to in that invitation.

37 The N P I board meeting of 3 October 1988 was called because Iggesunds Bruk AB ('Iggesunds Bruk'), a producer of SBS cartonboard and currently part of the M o D o group, was planning to cease its participation in and any financing of the 'pro-carton' activities. Prices were not discussed at that meeting. The reference to 'pro-carton' activities in appendix 102 ('how to market and to whom') does not

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show that the extraordinary meeting of the N P I was involved, because it does not pertain to what was to be discussed at the meeting in question.

38 Furthermore, if appendix 102 to the statement of objections were to be considered to contain information relating to price increases in the United Kingdom in April 1989, such information does not relate to the applicant. The prices of the carton- board manufactured by the applicant were not increased in the United Kingdom in April 1989 but in January 1989. Moreover, the reference to a price increase for cartonboard intended for the cigarette industry does not relate to the applicant either, because, first, it has not supplied cartonboard to that industry since 1987 and, second, the applicant's cartonboard price was significantly higher than that referred to in the note in question. N o r is SBS cartonboard expressly referred to in appendix 102.

42 Third, appendix 44 to the statement of objections, a note in the diary of a Feld- mühle employee (of the Stora group), does not reveal collusion on prices and pro- duction control between Feldmühle and other producers, including the applicant, in the context of the January 1987 price increase in the United Kingdom.

43 The only reference to the applicant's prices in that note ('Enso 86 same prices as 85') concerns a matter of public knowledge at the beginning of 1987, the period to which the note is said to relate. Moreover, the applicant increased its prices in the United Kingdom by U K L 10 per tonne on 1 December 1986, which is inconsistent with the Commission's assertions.

44 The reference to the applicant's order backlog ('circa two weeks' activity') does not show collusion. Two weeks' orders in hand are normal at the beginning of the year and that state of affairs is obvious to any person with knowledge of the sector. Customers faced with a price increase from their usual supplier will normally ask other producers to indicate their delivery period and will then use the information obtained in order to refuse or to delay the announced price increase. Information on the orders in hand of the various producers is therefore rapidly available to the whole sector.

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45 Fourth, the applicant contests the Commission's assertion that proof of its partici- pation in collusion on prices is provided by the Virtually exact correspondence' of its price increases with the figures contained in appendix 111 to the statement of objections, a price list obtained from Rena. Rena has explained that it did not receive the list from the N P I , but that it had been given to it by another Scandi- navian producer during a meeting. As it is an undated list obtained from an unknown Scandinavian producer, it cannot therefore be used as evidence against the applicant. Moreover, since the applicant announced its price increases in the United Kingdom and in Germany six days and 21 days respectively after Igge- sunds Bruk, its actual pricing conduct confirms that it did not participate in col- lusion on prices.

50 Contrary to the assertion in point 41 of the Decision, the minutes of the P C meet­ ings are not misleading. The applicant's representatives in the P C meetings have confirmed that no discussion of prices took place in their presence.

51 N o r can the note found at Mayr-Melnhof's sales agent (appendix 61 to the state­ ment of objections) be regarded as proof that prices were discussed in the P C . The Commission stated in the statement of objections that it did not even know whether the note concerned a meeting of the P C .

52 Eighth, the applicant disputes the accuracy of the allegation in the Decision (points 38 and 41) that, first, the P W G reported to the P C regarding the precise state of supply and demand and, second, that managing directors attending the meetings of the P C were informed of pricing decisions adopted by the P W G and of infor­ mation to be passed on to their sales departments for the purpose of implementing the price initiatives. That allegation is not proved by reference to Stora's statement alone.

53 The four examples on which the Commission relies in its defence in order to establish a link between the P C meetings, the P W G and the applicant's pricing behaviour do not prove that allegation. It is impossible to establish any link between the P C meetings in which the applicant participated and its pricing behaviour.

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57 Lastly, the applicant carries out an extremely detailed analysis of the alleged con- certed price initiatives in which it is considered to have participated. It concludes that its analysis also shows that it did not participate in any collusion, since it reveals considerable differences in the dates and amounts of each of price increase.

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— Arguments of the Commission

58 The Commission states that it found that a single infringement had been commit­ ted consisting of a 'common industry plan to restrict competition', involving price increases, an understanding on market shares, concerted measures to control sup­ ply of the market and an exchange of commercial information to support those actions (point 116 et seq. of the Decision). Moveover, all the addressees of the Decision had participated in that infringement which was constituted by the 'price before tonnage' scheme (point 129 et seq. of the Decision) applied by all the pro­ ducers. In consequence, the fact that a particular producer did not take part in one or other meeting or did not carry out every action of the cartel is irrelevant.

59 The applicant cannot attempt to compartmentalise each piece of evidence relied on against it and claim that each item does not prove anything in itself. It is necessary to consider all the evidence of participation in a cartel as a whole and to determine whether there are sufficient concordant indications to support the Commission's allegations (judgment in Case 48/69 ICI ν Commission [1972] E C R 619). All the Commission's arguments should be understood in the light of those general con­ siderations, as it has never asserted that each item of evidence relied upon as against the applicant sufficed to prove all the objections raised against it.

63 Lastly, Iggesunds Bruk increased its prices in the United Kingdom by the same amount with effect from 9 January 1989.

64 Second, as regards appendix 133 to the statement of objections (paragraph 39 above), Iggesund's contrived explanation of the meaning of the word 'presidents' in the note in question is implausible, because it is not confirmed by the written evidence before the Commission and it is in fact incompatible with it.

65 The evidence confirms the assertion that appendix 133 to the statement of objec- tions shows that collusion took place in regard to the April 1990 price increase for graphic grades in the United Kingdom. The differences pointed out by the appli- cant concerning the undertakings which announced the price increase and the dates of those announcements are not inconsistent with the existence of collusion. Agreement was reached in the PWG, for each price initiative, on the order in

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which the price increases would be announced by the members of the PWG, whereas the other undertakings could choose the moment when they announced their own increase (points 72 and 73 of the Decision). Consequently, the nature of the April 1990 price increase is cogent proof of the existence of collusion.

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applicant and Iggesunds Bruk increased their prices by U K L 50 in October 1988 and by U K L 60 in October 1989. As regards the latter price increase, it should also be borne in mind that the applicant's price increases corresponded to those set out in appendix 111 to the statement of objections (paragraph 72 et seq. below).

69 Third, as regards appendix 44 to the statement of objections, the Commission states that the applicant's name figures on a list of a number of producers, together with information on pricing, order backlogs and downtime, information which cannot be considered to have been public knowledge. In those circumstances, it is of little significance that it was well known that the applicant's prices in 1986 were the same as those for 1985 and that the reference to the applicant's prices might be considered to be innocent in itself.

70 The applicant actually increased its prices in December 1986, at the same time as the other producers of G C cartonboard graphic grades and of SBS cartonboard. The proof of collusion provided by the diary note is therefore confirmed by the price increases applied by the relevant producers.

71 N o r can the level of the applicant's orders in hand, referred to in appendix 44 to the statement of objections, be considered to be public knowledge.

75 The Commission states that it is not linking the applicant to the cartel on the basis of its membership of a trade association alone.

76 Sixth, as regards the applicant's membership of the N P I , the Commission observes that, although it cannot be concluded from an undertaking's membership of a trade association that the undertaking is aware of all the information in that asso­ ciation's possession, in the present case there is ample evidence that the applicant, a member of the Board and Marketing Committee of the N P I , did obtain relevant information and acted upon it.

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77 Seventh, the Commission maintains its assertion in the Decision, based on Stora's statements, to the effect that the meetings of the PC had an anti-competitive object. The anodyne nature of the minutes of the PC meetings is irrelevant, because the members of a cartel obviously try to conceal its existence. However, in the present case, the real nature of the discussions in the PC is shown by Stora's statements. Those statements are confirmed, first, by the statement of Mr Roos (a former manager in Feldmühle, of the Stora group) supplied to the Commission by Weig and, second, by the note found at Mayr-Melnhof's agent (appendix 61 to the statement of objections).

78 Eighth, the Commission rejects the applicant's assertion that there is no proof that the outcome of the PWG meetings was communicated to the other undertakings at meetings of the PC. According to Stora, the PC discussed the situation regarding prices and over-capacity. From 1986, the PWG informed the PC of the precise state of supply and demand on the market and of the measures to be adopted in order to regulate it. The participants in the PC meetings were therefore informed of the decisions adopted by the PWG, in particular in regard to pricing, and of the instructions to be given to their sales agents in order to implement those decisions. In the light of Stora's statements, the applicant cannot therefore claim that it never participated in discussions on pricing in the PC.

83 The applicant's meticulous comparison between its own price increases and those of Iggesunds Bruk and of Finnboard reveals only that there are minor differences between the dates of the announcements.

— Findings of the Court

84 According to Article 1 of the Decision, the undertakings referred to in that provi­ sion infringed Article 85(1) of the Treaty by participating, during the relevant period, in an agreement and concerted practice whereby the suppliers of carton- board in the Community 'agreed regular price increases for each grade of the product in each national currency', 'planned and implemented simultaneous and uniform price increases throughout the Community', 'reached an understanding on maintaining the market shares of the major producers at constant levels, subject

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to modification from time to time' and 'increasingly from early 1990, took concerted measures to control the supply of the product in the Community in order to ensure the implementation of the said concerted price rises'.

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question whether the applicant participated in the cartel in question as a member of the N P I and; fourth, the applicant's actual pricing behaviour.

— The object of the P C meetings

88 There is no dispute that the applicant participated regularly in meetings of the P C (see table 3 annexed to the Decision). However, the Commission does not advance any evidence as to the object of the meetings in which the applicant is proved to have participated. Consequently, when it refers to that participation as evidence of the undertaking's participation in an infringement of Article 85(1) of the Treaty, it necessarily bases its assertion on the general description, set out in the Decision, of the object of the meetings of that body and on the evidence put forward in the Decision in order to support that description.

91 The Commission bases its assertion of the anti-competitive object of the P C meet- ings primarily on Stora's statements. However, the correctness of that assertion is contested by several undertakings, including the applicant, which participated in the P C meetings. In consequence, unless supported by other evidence, Stora's statements concerning the PC's role cannot be regarded as adequate proof of the object of that body's meetings.

92 The document in appendix 61 to the statement of objections (paragraph 68 above) relates to a meeting held in Vienna on 12 and 13 December 1986. It contains the following:

'UK pricing

Recent Fides meeting included the representative of Weig stating that they thought 9% too high for the United Kingdom and were settling at 7% ! Great disappoint- ment as it signals a "negotiating" level for everybody else. U K pricing policy will be left to R H U with the support of [Mayr-Melnhof] even if it means a temporary reduction in tonnes while we attempt (and be seen to attempt) to pursue 9%. [Mayr-Melnhof/FS] maintain a growth policy for U K but reduced returns are serious and we have to fight to regain control on pricing. [Mayr-Melnhof] accept that it doesn't help that they are known to have increased their tonnes in Germany by 6 000!'

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that is to say, without reference to a specific event or meeting (appendix 75 to the statement of objections, point 2. a).

98 Although there is no dispute in the context of this case that appendix 73 to the statement of objections is corroborative evidence of Stora's statements as to the existence of collusion on market shares between the undertakings allowed to par- ticipate in the 'Presidents' grouping' and on collusion on downtime between those same undertakings, the Commission has not, however, adduced any other evidence to confirm that the object of the PC was, inter alia, to discuss collusion on market shares and control of production volume. Consequently, the expression 'Presi- dents' grouping' ('Präsidentenkreis') used in appendix 73 to the statement of objec- tions cannot, despite the explanations supplied by Mayr-Melnhof, be construed as referring to bodies other than the PWG.

99 Lastly, Stora's allegation that one of the PC's functions was to inform the manag- ing directors of decisions taken by the PWG and of the instructions to be given to their sales departments in order to implement those pricing initiatives (appendix 39 to the statement of objections, point 8) cannot be considered to be corroborated by the statement of 22 March 1993 of Mr Roos, a former member of the manage- ment of Feldmühle.

100 In his statement, which was sent to the applicant during the administrative pro- cedure and to which the Commission refers (see paragraph 77 above), Mr Roos indicates, inter alia, as follows: 'The content of the discussions in the P W G was communicated to the undertakings not represented in that group at the immedi- ately following Presidents' Conference, or, if there was no immediate Presidents' Conference, at the JMC'. That document, upon which no express reliance was placed in the Decision to support the Commission's assertions as to the object of the PC meetings, cannot, on any view, be considered to constitute evidence supple- menting Stora's statements. As those statements are a synthesis of the replies sub- mitted by each of the three undertakings, including Feldmühle, owned by Stora

103 As regards, first of all, appendix 44 to the statement of objections, which consists of a handwritten note in the desk diary of an employee of Feldmühle (of the Stora group) on the pages for 15 to 17 January 1987, the Commission considers that this constitutes 'further evidence of concertation' (third paragraph of point 75 of the Decision) on the January 1987 price increase in the United Kingdom.

104 However, that note does not have the probative value accorded it by the defen- dant. It is in the form of handwritten comments which refer to several cartonboard producers and data — generally historical — on prices and downtime. However, it is not possible to determine the origin of the note by reference to the data which it contains, or whether it was written at a meeting or in the course of a telephone

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conversation, or whether it consists of comments intended to act as an aide- mémoire for its author.

105 Even assuming that the note relates to a meeting, there is no identification of that meeting, so the possibility cannot be ruled out that it concerns an internal Feld- mühle meeting. Moreover, since the note probably dates from mid-January 1987, it does not prove that the application of the price increase 'TBM included' was the result of collusion, given that the note was possibly only an observation. Accord- ing to table A annexed to the Decision, Thames Board Mills Ltd ('TBM') had announced an increase in its prices in the United Kingdom on 5 November 1986 (see also annex A-12-1).

109 The only information concerning the applicant which is not clearly historical, namely that relating to the state of its order backlog, is not so precise that it must be regarded as emanating from the applicant. In that context, the Court points out that the Commission has challenged the applicant's — prima facie plausible — claim that the customers of cartonboard manufacturers generally have information as to the state of their suppliers' order backlogs, but has not substantiated its chal- lenge.

1 1 0Lastly, the applicant, relying on a document setting out the changes in the prices applied to one of its United Kingdom customers, asserts that it increased its prices of SBS cartonboard in the United Kingdom in December 1986 by UKL 10 per tonne. That price increase is therefore well below that allegedly agreed between the undertakings which met in the PG Paperboard (see point 74, last paragraph, of the Decision). As the Commission has not adduced any evidence to refute that asser- tion, the Court considers that there is no basis whatsoever, as against the applicant, for the Commission's allegation that appendix 44 to the statement of objections is additional evidence of collusion on the January 1987 price increase in the United Kingdom.

1 1 1Having regard to the foregoing considerations, appendix 44 to the statement of objections does not prove that the applicant participated in an infringement of Article 85(1) of the Treaty.

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112 Next, as regards appendix 133 to the statement of objections, a document discov- ered at Iggesund Board Sales Ltd, the Commission explains (point 97, first and fifth paragraphs, of the Decision):

114 That — undated — appendix consists of a sheet of paper, apparently divided into three parts, containing handwritten notes set out in a particularly disorganised manner. The words and figures written on that sheet, such as 'SBS', 'Presidents', 'Anything Goes', 'Buddy', '780', '805/850', '£55/850', '£815/35' are not obviously connected. Looking at that sheet, it is not possible to know whether the notes on it were taken at a meeting with competitors or during a telephone conversation with one of them. They might therefore be notes of a historical nature intended to constitute an aide-mémoire. Moreover, it is impossible to establish whether all the words and figures were noted down on the same day.

1 1 5In those circumstances, appendix 133 to the statement of objections cannot be regarded as proof of the applicant's participation in collusion on the price increase implemented in April 1990.

1 1 6The use of the term 'Presidents', the reference to 'Enso/Finnboard/Strömsdahl' and the fact that the document contains a list of names of managers or directors of Iggesunds Bruk, Koppafors, Enso-Gutzeit and Finnboard, are not in themselves evidence to support the Commission's allegation that the document shows collu- sion on pricing between the undertakings mentioned in it. Even assuming that the word 'Presidents' must be regarded as a reference to the PC, which is disputed both by the applicant and by MoDo (point 97, second paragraph, of the Decision), it suffices to point out that the Commission has not demonstrated that the meet- ings of that body had an anti-competitive object.

121 Furthermore, although the Commission referred in the Decision to the amounts of the announced price increases, it has claimed in its written pleadings to the Court that the amount of the price increase announced by Iggesunds Bruk in the United Kingdom corresponded to an 8% price increase and that this increase ought to be regarded as 'similar' to the 8.5% price increase announced by the applicant. H o w - ever, irrespective of whether a comparison can be made between price increases expressed as a percentage, the substance of the Commission's assertion is inaccu- rate. According to the pricing documentation annexed to the statement of objec- tions (appendix F-12-6), Iggesunds Bruk's list price for SBS cartonboard was, prior

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to the increase in question, U K L 800 per tonne. Its price increase of U K L 50 per tonne for SBS cartonboard therefore corresponds to a 6.25% price increase. It fol­ lows that, even expressed as a percentage, the price increases in question cannot be characterised as 'similar' or 'identical'.

122 Lastly, the Commission's allegation that there are 'marked similarities' between the prices in appendix 133 to the statement of objections and those appearing, first, in a Mayr-Melnhof note of 11 January 1990 relating to a J M C meeting (appendix 113 to the statement of objections) and, second, in a Kopparfors note of 23 January 1990 relating to a meeting of the Paper Agents Association (appendix 130 to the statement of objections) is irrelevant as regards the applicant, because it never attended meetings of those bodies.

126 In order to prove the applicant's participation in the infringement, the Commis- sion states in point 121 of the Decision that the applicant was a member 'of both the Board and the Marketing Committee of the NPI, a body whose role in collu- sion is amply demonstrated'.

127 Representatives of the N P I are alleged to have participated in the meetings of the PC and of the Economic Committee (point 42, second paragraph, and tables 3 and 6 of the Decision). As the N P I was not separately represented in the P W G and the JMC, the Commission submits that Finnboard's representatives in those bodies participated in them as representatives of the N P I and also in their own right, and that the applicant was informed by Finnboard of the decisions taken in those bod- ies (see, in particular, points 38, fourth paragraph, and 46, first paragraph, of the Decision). As regards the Economic Committee, the Commission appears to sub- mit that the applicant was informed of the outcome of the meetings of that body by the representative of the N P I who had participated in it (point 50, fourth para- graph, of the Decision).

'Scandinavian producers were usually informed of the outcome by the Scandina­ vian representative who was the Finnboard representative. Kopparfors was informed of the outcome in this way. It is the Stora Producers' understanding that other Scandinavian producers informed were [Rena] (Norway), [Strömsdahl] and Enso (both Finland).'

1 3 1As is clearly apparent from the wording of that statement, Stora is merely indicat- ing its belief that the applicant was informed of the outcome of the meetings of the PWG. The basis for that belief is not in fact indicated. In those circumstances, that statement cannot constitute proof of the applicant's participation in an infringe- ment of Article 85(1) of the Treaty. That conclusion is all the more necessary in view of the fact that in appendix 38 to the statement of objections Stora implicates not only a member undertaking of the N P I which is not concerned by the Decision (Strömsdahl), but also two Spanish member undertakings of the PG Paperboard which were not considered in the Decision to have participated in any infringement.

132 As regards appendix 102 to the statement of objections, the Commission submits that this document, obtained from Rena, contains the notes taken on the occasion of discussions at a meeting of the NPI's 'Marketing Committee' on 3 October 1988 at Arlanda airport. It states that this document confirms that downtime was contemplated in the context of the April 1989 price increase (point 58, second and

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third paragraphs, of the Decision). The applicant, which was represented at that meeting, has stated that the object of that meeting was in particular the financing of the 'pro-carton' advertising campaign. The Commission explained at the hearing that the representative of Rena who had supplied that document to the Commis- sion had stated that it was attached to the invitation to the meeting in question.

ENSO-GUTZEIT ν COMMISSION

the applicant's participation. In that regard, the Court points out, first, that the Commission has not adduced any other evidence to prove that discussions with an anti-competitive object took place at meetings of the N P I and, second, that the explanations of Rena's managing director as to the origin of the price lists con­ tained in appendices 110 and 111 to the statement of objections (see paragraph 139 below) appear to show that the N P I meetings were also the opportunity for mem­ ber undertakings of that association to hold meetings in which a more restricted circle of undertakings took part.

137 In those circumstances, appendix 102 to the statement of objections does not prove that the applicant participated in an infringement of Article 85(1) of the Treaty.

138 Lastly, appendix 111 to the statement of objections, a price Ust obtained from Rena, contains information concerning price increases for G C 1, G C 2 and SBS grade cartonboard which were to be implemented on 1 October 1989.

139 As regards the origin of that price list and that of another price list obtained from Rena (appendix 110 to the statement of objections), Rena's managing director stated as follows in a letter of 10 July 1992 (appendix 112 to the statement of objections):

'The price lists as you state, were among the papers from meetings in [NPI], and I must have received them during a visit to Stockholm regarding a [NPI]-meeting. During these visits I normally had several meetings with some of the other Scan­ dinavian producers. I was new as managing director at Rena at that moment and had a lot of discussions with other members of the trade, and this was a crucial time for our board mill with a big loss that year and it was important for me to have a best possible foundation for the 1990 budget. I probably got the lists during one of these meetings.

142 The applicant announced an increase in its prices in the Netherlands of H F L 13 per 1OO kg which was to take effect on 1 October 1989 but was subsequently post- poned until 1 January 1990 (appendices E-3-3 to E-3-7 of the price documents). However, according to appendix 111 to the statement of objections, the price of SBS cartonboard in the Netherlands was to be increased on 1 October 1989 by H F L 17 per 100 kg. Table E annexed to the Decision also shows that the applicant announced an increase in its prices in Denmark on 25 May 1989, almost two months before the first letter announcing a price increase was sent by one of the other undertakings deemed to have participated in the collusion on prices (see table E annexed to the Decision). Furthermore, according to Stora (appendix 39 to the statement of objections, point 34), the decision to increase prices for G C and SBS cartonboard with effect from October 1989 was taken in the P W G in June of the same year, that is to say, after the date on which the applicant announced the increase in its prices in Denmark.

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ENSO-GUTZEIT ν COMMISSION

143 Having regard to those factors, and even if the price increases announced by the applicant in Germany, France and the United Kingdom correspond to those set out in appendix 111 to the statement of objections, that document cannot be regarded as proof of the applicant's participation in collusion on prices. The refer­ ences to the price increases of SBS cartonboard might have concerned Iggesunds Bruk alone, the other producer of that grade of cartonboard deemed to have par­ ticipated in the infringement.

JUDGMENT OF 14. 5. 1998 — CASE T-337/94

147 The Court has already held that the figures concerning the applicant's price increases for cartonboard in October 1989 are not so similar in comparison with those contained in appendix 111 to the statement of objections (the price list obtained from Rena, paragraph 138 above) as to support the Commission's asser- tion that that document proves that the applicant participated in collusion on prices (paragraph 141 et seq. above).

148 The Court has also held that appendix 133 to the statement of objections, on which the Commission relies as evidence of the applicant's participation in collu- sion on the April 1990 price increase in the United Kingdom, has no probative value (see paragraph 112 et seq. above). In that context, the Court has also held that the price increases announced by Iggesunds Bruk and by the applicant in the United Kingdom at the beginning of 1990 cannot be regarded as 'similar' or 'iden- tical' (paragraphs 119 to 121 above).

152 In its appraisal of the object of the P C meetings, of the documents expressly refer­ ring to the applicant (appendices 44 and 113 to the statement of objections), of the consequence of the applicant's membership of the N P I , and of the applicant's actual pricing conduct, the Court has held that none of those elements can, when considered separately, constitute evidence of the applicant's participation in an infringement of Article 85(1) of the Treaty.

153 Even when the documents before it are considered as a whole, the Court finds that their probative value is not sufficient to prove that the applicant committed an infringement of Article 85(1) of the Treaty.

154 The Decision must therefore be annulled in so far as it concerns the applicant, and it is not necessary to consider the other pleas on which the applicant relies in sup­ port of its application for annulment of the Decision.

Costs

155 Under 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has been unsuccessful in its submissions, it must be ordered to pay the costs, as sought by the applicant.

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Vesterdorf Briët Lindh

Potocki Cooke

Delivered in open court in Luxembourg on 14 May 1998.

H. Jung B. Vesterdorf

Registrar President

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