T-25/95

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-S0/9S TO T-6S/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition) 15 March 2000 *

In Joined Cases T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95,

T-25/95 Cimenteries CBR SA, a company incorporated under Belgian law, established in Brussels, represented by Michel Waelbroeck, Alexandre Vandencasteele, Denis Waelbroeck and, initially, also by Olivier Speltdoorn, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt,

T-26/95 Cembureau — Association Européenne du Ciment, an association constituted under Belgian law, established in Brussels, represented by Julian Ellison, Solicitor, and Mark Clough, Barrister, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

T-30/95 Federation de l'Industrie Cimentière Belge ASBL, an association constituted under Belgian law, established in Brussels, represented by Onno Willem Brouwer, of the Amsterdam Bar, and Frédéric R Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

T-34/95 Ciments Luxembourgeois SA, a company incorporated under Luxembourg law, established in Esch-sur-Alzette, Luxembourg, represented by Joachim Sedemund, Rechtsanwalt, Cologne, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

T-35/95 Dyckerhoff AG, a company incorporated under German law, established in Wiesbaden, Germany, represented by Claus Tessin and Frank Montag, Rechtsanwälte, Cologne, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

T-36/95 Syndicat National de l'Industrie Cimentière (SFIC), an association constituted under French law, established in Paris, represented by Edouard Didier and Jean-Claude Rivalland, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Katia Manhaeve, 56-58 Rue Charles Martel,

T-37/95 Vicat SA, a company incorporated under French law, established in Paris, represented by Edouard Didier and Jean-Claude Rivalland, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Katia Manhaeve, 56-58 Rue Charles Martel,

T-38/95 Groupe Origny SA, a company incorporated under French law, established in Paris, successor to Cedest SA, represented by Xavier de Roux and Marie-Pia Hutin, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Jacques Loesch, 11 Rue Goethe,

T-39/95 Ciments Français SA, a company incorporated under French law, established in Paris, represented by Antoine Winckler, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Elvinger, Hoss & Prussen, 2 Place Winston Churchill,

T-45/95 Alsen AG, formerly Alsen-Breitenburg Zement- und Kalkwerke GmbH, a company incorpo­ rated under German law, established in Hamburg, Germany, represented by Karlheinz Moosecker and Martin Klusmann, Rechtsanwälte, Düsseldorf, with an address for service in Luxembourg at the Chambers of Alex Bonn, 7 Val Sainte-Croix,

T-46/95 Alsen AG, formerly Nordcement AG, a company incorporated under German law, established in Hamburg, Germany, represented by Karlheinz Moosecker and Martin Klusmann, Rechtsanwälte, Düsseldorf, with an address for service in Luxembourg at the Chambers of Alex Bonn, 7 Val Sainte-Croix,

T-48/95 Bundesverband der Deutschen Zementindustrie eV, a registered association constituted under German law, established in Cologne, Germany, represented by Jochen Burrichter, Rechtsanwalt, Düsseldorf, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

T-50/95 Unicem SpA, a company incorporated under Italian law, established in Turin, Italy, represented by Franzo Grande Stevens and Andrea Gandini, of the Turin Bar, GianDomenico Magrone and Cristoforo Osti, of the Rome Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

T-51/95 Fratelli Buzzi SpA, a company incorporated under Italian law, established in Casale Monferrato, Italy, represented by Guido Brosio, Carlo Pavėsio and Nicola Ceraolo, of the Turin Bar, Claudia Crescenzi and Silvia D'Alberti, of the Rome Bar, with an address for service in Luxembourg at the Chambers of René Faltz, 6 Rue Heinrich Heine,

T-52/95 Compania Valenciana de Cementos Portland SA, a company incorporated under Spanish law, established in Madrid, represented by Santiago Martínez Lage and Jaime Pérez-Bustamante

T-56/95 Castle Cement Ltd, a company incorporated under English law, established in Birmingham, United Kingdom, represented by Nicholas Forwood QC, John Cook, Geert Goeteyn and Trevor Soames, Solicitors, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt,

T-57/95 Heracles General Cement Company SA, a company incorporated under Greek law, established in Athens, represented by Kostas Loukopoulos, Sotirios Felios and Irini Gortsila, of the Athens Bar, and Sebastian Farr and Ciaran Walker, Solicitors, with an address for service in Luxembourg at the Chambers of Jos Stoffel, 8 Rue Willy Goergen,

T-58/95 Corporación Uniland SA, a company incorporated under Spanish law, established in Barcelona, Spain, represented by Luis de Carlos Bertrán and Edurne Navarro Varona, of the Barcelona Bar, with an address for service in Luxembourg at the Chambers of Alex Bonn and Alex Schmitt, 7 Val Sainte-Croix,

T-59/95 Agrupación de Fabricantes de Cemento de España (Oficemen), an association constituted under Spanish law, established in Madrid, represented initially by Jaime Folguera Crespo and Ramón

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

SECIL — Companhia Geral de Cal e Cimento SA, a company incorporated under Portuguese law, established in Outão, Setúbal, Portugal, represented by Nuno Mimoso Ruiz, of the Lisbon Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

T-63/95

Associação Técnica da Indùstria de Cimento (ATIC), an association constituted under Portuguese law, established in Lisbon, represented by Mário João Marques Mendes, of the Lisbon Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

T-64/95

Titan Cement Company SA, a company incorporated under Greek law, established in Athens, represented by Ian S. Forrester QC, of the Scots Bar, and Aristotelis N. Kaplanidis, of the Thessaloniki Bar, with an address for service in Luxembourg at the Chambers of Tom Loesch, 11 Rue Goethe,

T-65/95

T-69/95

Hornos Ibéricos Alba SA (Hisalba), a company incorporated under Spanish law, established in Madrid, represented by Michael Schütte, Rechtsanwalt, Berlin, Luis Suaréz de Lezo Mantilla, of the Madrid Bar, with an address for service in Luxembourg at the Chambers of Alex Bonn, 7 Val Sainte-Croix,

T-70/95

Aker RGI ASA, a company incorporated under Norwegian law, established in Oslo, represented by Nicholas Forwood QC, John Cook, Geert Goeteyn and Trevor Soames, Solicitors, with an address for service in Luxembourg at the Chambers of Arendt & Medernach, 8-10 Rue Mathias Hardt,

T-71/95

Scancem (publ) AB, formerly EUROC AB, a company incorporated under Swedish law, established in Malmö, Sweden, represented by Nicholas Forwood QC, John Cook, Geert Goeteyn and Trevor Soames, Solicitors, with an address for service in Luxembourg at the Chambers of Arendt & Medernach, 8-10 Rue Mathias Hardt,

Laura Carstensen and Marc Israel, Solicitor, with an address for service in Luxembourg at the Chambers of Elvinger, Hoss & Prussen, 2 Place Winston Churchill,

T-103/95 Enosi Tsimentoviomichanion Ellados, an association constituted under Greek law, established in Athens, represented by Ioannis Georgakakis and Maria Golfinopoulou, of the Athens Bar, with an address for service in Luxembourg at the Chambers of Tom Loesch, 11 Rue Goethe,

and

T-104/95 Tsimenta Chalkidos AE, a company incorporated under Greek law, established in Athens, represented by Panagiotis Marinou Bernitsas, of the Athens Bar, with an address for service in Luxembourg at the Chambers of Philippe Dupont, 8-10 Rue Mathias Hardt,

applicants,

v

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CIMENTERIES CBR AND OTHERS V COMMISSION

address for service in Luxembourg at the Office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment in whole or in part of Commission Decision 94/815/EC of 30 November 1994 relating to a proceeding under Article 85 of the EC Treaty (Cases IV/ 33.126 and 33.322 — Cement) (OJ 1994 L 343, p. 1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber, Extended Composi- tion),

Judgment

The facts

1 The present cases concern Commission Decision 94/815/EC of 30 November 1994 relating to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126 and 33.322— Cement) (OJ 1994 L 343, p. 1, hereinafter 'the contested decision') which imposed fines on 42 undertakings and associations of undertakings operating in the grey and white cement sector, for infringing Article 85(1) of the EC Treaty (now Article 81(1) EC).

2 From April 1989 to July 1990, the Commission carried out investigations into European cement producers and trade associations in the sector pursuant to Article 14(2) and (3) of Regulation No 17, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-62, p. 87, hereinafter 'Regulation No 17'). It also sent them requests for information pursuant to Article 11 thereof. Finally, it sent to Cembureau — European Cement Association ('Cembureau') a statement of objections relating to a proceeding under Article 15(1) of Regulation No 17.

3 On 12 November 1991 the Commission initiated the administrative procedure and adopted its objections by virtue of Article 3(1) of Regulation No 17. On 25 November 1991 it sent the Statement of Objections ('SO') provided for by Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (OJ, English Special Edition 1963-64, p. 47) to the 76 undertakings and associations of undertakings concerned. The SO draws a basic distinction between two types of objectionable practices, namely practices at international level (Part I, Chapters 1 and 2; Part II, Section A, Chapters 10,11 and 12, and Sections B and C) and practices at national level (Part I, Chapters 3 to 9; Part II, Section A, Chapters 13 to 19).

5 The full index of the SO, and a list of all the documents itemised under file numbers IV/33.126, IV/33.322 and IV/27.997 specifying which documents were accessible to each addressee (hereinafter 'the List'), were sent to each addressee of the SO. Each addressee was able to gain access, at the Commission's premises, to the documents in the three abovementioned files on the basis of the List and the references to accessibility in that list. The Commission also sent to them a set of copies of documents from those files. On 9 July 1992, the record of the meeting of the European Task Force held on 19 August 1986 (referred to in recital 25, paragraph 14, of the contested decision) was sent by the Commission to all the undertakings and associations of undertakings to which the international section of the SO was addressed and they were asked to make known any comments they might have on that document, which had come to the Commission's knowledge through the replies to the SO submitted by Aker RGI ASA (formerly known as Aker A/S, also referred to as 'Aker' in the contested decision, hereinafter referred to as 'Aker') and Scancem (pubi) AB (formerly known as EUROC AB, also referred to as 'EUROC' in the contested decision, hereinafter referred to as 'EUROC').

6 After having had access to the Commission's files, a number of those undertakings asked the Commission for a copy of the chapters that were omitted from the SO sent to them and for access to the whole of the file, except for internal or confidential documents. The Commission refused to accede to that request.

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JUDGMENT OF IS. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/9S TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-S0/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/9S AND T-104/95

9 By 31 March 1992 all the applicants in the present proceedings had submitted observations on the SO sent to them by the Commission.

10 By order of 11 September 1992, Case T-14/92 ENCI and Vereniging Nederlandse Cementin- dustrie v Commission (not published in the European Court Reports) was removed from the register of the Court of First Instance following the withdrawal of the applicants. Pending judgment in the other actions still before the Court, the Commission suspended the oral hearing to be held after receipt of the replies to the SO.

n By judgment of 18 December 1992 in Joined Cases T-10/92, T-ll/92, T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] ECR 11-2667, the Court of First Instance dismissed those actions as inadmissible.

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15 On 27 September 1993, it informed all the undertakings and associations of undertakings involved of its decision to drop the objections relating to the national agreements and concerted practices. Accordingly, it informed them that the '... indications contained under letter (c) in Part II (Applicability of Article 15(2) of Regulation No 17/62) in point 93(b) of the statement of objections regarding "the fact that it is impossible to separate the national agreements, decisions and concerted practices from the European ones, since both form an inseparable whole are now purposeless and will not be taken into consideration during the procedure which will follow its usual course for all remaining chapters of the statement of objections addressed to you'.

16 On 5 October 1994, the Commission consulted the Advisory Committee on Restrictive Practices and Dominant Positions. It consulted it again on 23 November 1994.

1 7 On 30 November 1994, it adopted the contested decision in which it drew a distinction between two markets, the grey cement market and the white cement market. The 42 undertakings and associations of undertakings to which that decision was addressed are all referred to in the decision's passages dealing with the grey cement market (recitals 6, 8 to 37, 42 to 60, 64 and 65, and Articles 1 to 6, 8 and 9). Only six undertakings to which the contested decision was addressed are also referred to in its passages on the white cement market (recitals 7, 38 to 41, 42, 43, 61 to 63 and 65, and Articles 7, 8 and 10).

19 The contested decision thus finds that there were agreements and concerted practices between Cembureau and its members concerning the exchange of information designed to facilitate the implementation of the Cembureau agreement (recitals 16, 17 and 47 and Article 2(1) and (2)). It also finds that there were specific cross-border agreements, relating to Franco-Italian relations (recitals 20 and 48 and Article 3(1)(a), (b) and (c)), Hispano-Portuguese relations (recitals 21 and 49, and Article 3(2)) and to Franco-German relations (recitals 22 and 50, and Article 3(3)(a) and (b)). It sets out the collusion which allegedly took place between several European producers as a reaction to imports of Greek cement and clinker into the Member States of the Community in the mid-1980s, which gave rise to the setting up of a group known as the European Task Force ('ETF'); the setting up of a 'Joint Trading Company' (also referred

II-519

JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

to hereinafter as 'Interciment'); the adoption of measures to defend the Italian market; and the adoption of measures for the purchase of quantities of cement or clinker likely to destabilise the market ('persuasive measures' or 'carrot actions') (recitals 24 to 29 and 53 to 57, and Article 4(1), (2), (3)(a) and (b), and (4)(a) to (h)). Finally, it alleges that a number of undertakings and associations of undertakings participated in concerted practices contrary to Article 85(1) of the Treaty in the framework of two committees set up by the trade in order to discuss export problems: the European Cement Export Committee ('ECEC') and the European Export Policy Committee ('EPC') (recitals 30 to 37 and 58 to 60, and Articles 5 and 6).

Cembureau — T h e European Cement Association, the Federation de l'Industrie Cimentière ASBL, SA Cimenteries CBR, Aalborg Portland A/S, the Syndicat Français de l'Industrie Cimentière, Lafarge Coppée SA, Société des Ciments Français SA, Vicat SA, Cedest SA, the Bundesverband der Deutschen Zementindustrie, Heidelberger Zement AG, Dyckerhoff AG, Alsen-Breitenburg Zement- und Kalkwerke G m b H , Nordcement AG, the Association of the Greek Cement Industry, Titan Cement Company SA, Heracles General Cement Company, Halkis Cement Company SA, Irish Cement Ltd, Italcementi — Fabbriche Riunite Cemento SpA, Unicem SpA, Cementir — Cementerie del Tirreno SpA, SA des Ciments Luxembourgeois, the Vereniging Nederlandse Cementindustrie, Eerste Nederlandse Cement Industrie NV, the British Cement Association, Blue Circle Industries plc, Rugby G r o u p plc and Castle Cement Ltd, from 14 January 1 9 8 3 , Fratelli Buzzi SpA from 11 M a y 1 9 8 3 , A T I C — Associação Tecnica da Industria do Cimento, Cimpor — Cimentos de Portugal SA, SECIL — Companhia Geral de Cal e Cimento SA, Agrupación de Fabricantes de Cementos de España — Oficemen, Asland SA, Corporación Uniland SA, Hispacement SA, H o r n o s Ibéricos Alba SA and Compañía Valenciana de Cementos Portland SA, from 1 January 1 9 8 6 , Holderbank Financière Glar[u]s

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CIMENTERIES CBR AND OTHERS V COMMISSION

SA, from 28 May 1986, and Aker A/S and EUROC AB, from 9 June 1986, infringed the provisions of Article 85( 1 ) of the EC Treaty by participating in an agreement designed to ensure non-transhipment to home markets and to regulate cement transfers from one country to another.

(a) the circulation of information on the Belgian and Dutch producers' minimum prices for supplies of cement by lorry and of the Luxembourg producer's prices, inclusive of rebates;

(b)the circulation of information on the Danish and Irish producers' individual price lists, on the trade price lists in force in Greece, Italy and Portugal, and on the average prices charged in Germany, France, Spain and the United Kingdom.

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JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/9S TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

Article 3

1. (a) Lafarge Coppée SA and Fratelli Buzzi SpA infringed, from 26 November 1988 to 31 December 1988, the provisions of Article 85(1) of the EC Treaty by participating in a concerted practice involving the sharing of the market in southern France and the restriction of their autonomy of conduct with regard to production sources.

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Article 4

1. Cembureau — The European Cement Association, the Holderbank Financière Glar[u]s SA group, Blue Circle Industries pic, Agrupación de Fabricantes de Cementos de España — Oficemen, Asland SA, Corporación Uniland SA, Hispacement SA, the Syndicat Français de l'Industrie Cimentière, Lafarge Coppée SA, Société de Ciments Français SA, the Bundesverband der Deutschen Zementindustrie, Dyckerhoff AG, Heidelberger Zement AG, SA Cimenteries CBR, Aker A/S and EUROC AB, Aalborg Portland A/S, Irish Cement Ltd, Italcementi — Fabbriche Riunite Cemento SpA, Unicem SpA and Cementir — Cementerie del Tirreno SpA infringed the provisions of Article 85(1) of the EC Treaty as from 28 May 1986 by participating in the agreement on the setting-up of the Cembureau Task Force or European Task Force.

2. The Holderbank Financière Glar[u]s SA group, Blue Circle Industries pic, Agrupación de Fabricantes de Cementos de España — Oficemen, Asland SA, Corporación Uniland SA, Hispacement SA, the Syndicat Français de l'Industrie Cimentière, Lafarge Coppée SA, Société de Ciments Français SA, the Bundesverband der Deutschen Zementindustrie, Dyckerhoff AG, Heidelberger Zement AG, Aker A/S and EUROC AB, SA Cimenteries CBR, Italcementi — Fabbriche Riunite Cemento SpA, Unicem SpA and Cementir — Cementerie del Tirreno SpA infringed the provisions of Article85( 1 ) of the EC Treaty from 9 June 1986 to 26 March 1993 by participating in an agreement on the setting-up of the Joint Trading Company, Interciment SA, having as its purpose the carrying-out of the persuasive and dissuasive measures against those threatening the stability of the member countries' markets.

(a) Blue Circle Industries plc, Castle Cement Ltd and Rugby Group pic, from 16 June 1986 to 5 September 1986, by participating in a concerted practice designed to prevent and/ or reduce Greek cement imports into the United Kingdom;

(b) Blue Circle Industries plc and Titan Cement Company SA, from 4 July 1986 to 31 December 1989, by participating in an agreement designed to deflect quantities of cement and clinker produced by Titan Cement Company SA to the United States and Nigeria and to prevent direct sales of such products by Titan Cement Company SA on the European markets;

(c) the Holderbank Financière Glar[u]s SA group and Titan Cement Company SA, from 19 June 1986 to 31 December 1990, by participating in an agreement designed to deflect quantities of cement and clinker produced Dy Titan Cement Company SA to the United States and Africa and to prevent direct sales of such products by Titan Cement Company SA on the European markets;

(d) the Holderbank Financière Glar[u]s SA group and Heracles General Cement Company, from 9 May 1986 to 31 December 1990, by participating in an agreement designed to prevent direct sales of cement by Heracles General Cement Company on the European markets and to deflect quantities of cement and clinker produced by Heracles General Cement Company to other markets;

(e) Lafarge Coppée SA and Titan Cement Company SA, from 22 July 1986 to 31 December 1991, by participating in an agreement designed to deflect quantities of clinker produced by Titan Cement Company SA to Canada and to prevent direct sales by Titan Cement Company SA on the European markets;

Article 5

The Fédération de l'Industrie Cimentière, Aalborg Portland A/S, the Syndicat Français de l'Industrie Cimentière, Dyckerhoff AG, Alsen-Breitenburg Zement- und Kalkwerke GmbH, Nordcement AG, the Association of the Greek Cement Industry, Irish Cement Ltd, Italcementi — Fabbriche Riunite Cemento SpA, Unicem SpA, Cementir — Cementerie del Tirreno SpA and Eerste Nederlandse Cement Industrie NV, from 14 March 1984 to 22 September 1989, and Castle Cement Ltd, ATIC— Associação Técnica da Industria do Cimento and Agrupación de Fabricantes de Cementos de España — Oficemen, from 1 January 1986 to 22 September 1989, infringed the provisions of Article 85(1) of the Treaty by participating, within the framework of the ECEC, in concerted practices relating to the exchange of information, the supply and demand situation in the importing third countries, the export prices chargeable, the import situation in the member countries and the supply and demand situation on the home markets and designed to prevent incursions by competitors on respective national markets in the Community.

Article 6

Article 8

The undertakings specified in Articles 1 to 7 shall forthwith bring the infringements referred to in those Articles to an end (if they have not already done so) and shall henceforth refrain, in relation to the markets for grey cement and white cement, from any agreement or concerted practice which may have the same or similar object, including any exchange of confidential commercial information designed to monitor the performance of any express or tacit agreement or any concerted practice involving the sharing of markets in the Community.

Article 9

The following fines are hereby imposed on the associations and undertakings concerned, in respect of the infringement found in Article 1, which was put into effect, in particular, by the conduct set out in Articles 2 to 6:

1. Cembureau — The European Cement Association: a fine of ECU 100 000 2. Holderbank Financière Glar[u]s SA: a fine of ECU 5 331 000 3. Aker A/S: a fine of ECU 40 000 4. EUROC AB: a fine of ECU 40 000 5. Bundesverband der Deutschen Zementindustrie: a fine of ECU 100 000 6. Alsen-Breitenburg Zement- und Kalkwerke GmbH: a fine of ECU 3 841 000

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Article 10

The following fines are hereby imposed pn the undertakings named herein in respect of the infringements found in Article 7:

1. Italcementi — Fabbriche Riunite Cemento SpA: a fine of ECU 1 088 000 2. Dyckerhoff AG: a fine of ECU 988 000

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JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

3. Lafarge Coppée SA: a fine of ECU 1 028 000 4. Société des Ciments Français SA: a fine of ECU 1 052 000 5. SA Cimenteries CBR: a fine of ECU 836 000 6. Compania Valenciana de Cementos Portland SA: a fine of ECU 554 000

23 O n 13 January 1995, Ciments Français SA (also referred to as 'Société des Ciments Français SA', 'Ciments Français' and 'SCF' in the contested decision, hereinafter 'Ciments Français') advised the Commission of a clerical error in the calculation of the fine imposed on it in respect of the grey cement market. O n 6 February 1995, it became concerned at the fact that that error h a d been repeated in the second notification of the contested decision. O n 17 February 1995, the Commission informed it of its decision of 13 February 1995 to reject its request for rectification of the amount of the fine.

24 On 6 February 1995, Castle Cement Ltd (hereinafter 'Castle'), Aker and EUROC asked the Member of the Commission responsible for competition policy whether the Commission would pay interest on the amounts already paid pending the outcome of the appeal if the fine were

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annulled in whole or in part. Following receipt of the second notification in February 1995, they requested the Commission on 13 February 1995 to confirm what consequences that second notification would have as regards the fine or the lodging of a bank guarantee. They received no reply to their questions concerning the payment of interest.

26 By application lodged at the Court Registry on 17 May 1995, Halkis brought an application under Articles 185 and 186 of the EC Treaty for interim measures seeking suspension of the operation of the contested decision in so far as it required it to pay a fine. By order of the President of the Court of First Instance of 11 August 1995 in Case T-104/95 R Tsimenta Chalkidos v Commission [1995] ECR II-2235, that application was dismissed.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

27 By application lodged at the Court Registry on 10 M a y 1 9 9 5 , Cementir brought a second action seeking specifically the annulment of the contested decision in so far as it fixes, in Article 9, the a m o u n t of the fine imposed on it (Case T-116/95). By order of 10 June 1998, the Court of First Instance (Fourth Chamber, Extended Composition) declared that action inadmissible (Case T-116/95 Cementir v Commission [1998] E C R II-2261).

28 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fourth Chamber, Extended Composition) decided t o open the oral procedure in all the present cases without any preparatory inquiry. However, as a measure of organisation of the procedure, it asked the parties t o produce a number of documents and t o reply in writing t o a number of questions. The parties complied.

29 T h e parties presented oral argument and replied t o the questions p u t by the Court of First Instance at the hearings on 16, 18, 2 3 , 2 5 and 30 September 1998, and on 2, 7, 9, 14, 16 and 2 1 October 1 9 9 8 .

— annul the contested decision in so far as it concerns it;

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— order the Commission to pay the costs; and

— order any measures of inquiry that it may consider necessary.

32 FIC (T-30/95) claims that the Court should:

— order the Commission to pay the costs, together with interest on the fine wrongly paid.

II-531

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

34 V N C (T-32/95) claims that the Court should:

— annul the contested decision, at least in so far as it concerns it;

— in the alternative, reduce the fine imposed on it;

— annul, in so far as they concern it, Article 1, Article 3(3)(a), Article 4(1), (2), and 3(a), and Articles 5, 7, 8, 9 and 10 of the contested decision;

— in the alternative, reduce the fines imposed on it;

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CIMENTERIES CBR AND OTHERS V COMMISSION

— order the Commission to pay the costs.

37 SFIC (T-36/95) claims that the Court should:

38 Vicat (T-37/95) claims that the Court should:

— annul Articles 1,3(1)(c), and 9 of the contested decision, in so far as those articles concern it;

— in the alternative, annul or at least reduce the fine imposed on it;

II - 533

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

— order the Commission to pay the costs.

— in the alternative, reduce the fines imposed on it;

— order the Commission to pay the costs.

41 Heidelberger (T-42/95) claims that the Court should:

— annul the contested decision in so far as it concerns it;

— in the alternative, annul or at least reduce the fine imposed on it;

II - 534

— order the Commission to pay the costs.

43 Aalborg (T-44/95) claims that the Court should:

— annul Articles 1, 2, 4(1) and (3)(a), 5, 8 and 12 of the contested decision, in so far as those articles concern it;

— in the alternative, annul or at least reduce the fine imposed on it;

— order the Commission to pay the costs.

II - 535

— annul the contested decision in so far as it concerns it;

— in the alternative, annul or at least reduce the fine imposed on it;

— order the Commission to pay the costs.

46 B D Z (T-48/95) claims that the Court should:

— annul Article 1, Article 2, Article 3(3), Article 4(1), (2) and (3)(a) and Article 9(5) of the contested decision;

— order the Commission to pay the costs.

48 Buzzi (T-51/95) claims that the Court should:

— annul in whole or in part the contested decision in so far as it concerns it;

— in the alternative, annul or reduce the fine imposed on it;

— order the Commission to pay the costs;

— order the Commission to reimburse the whole of the costs incurred by it during the administrative procedure;

— order the Commission to reimburse the whole of the costs incurred in lodging a security for the payment of the fine imposed;

— order the Commission to pay the costs.

50 Rugby (T-53/95) claims that the Court should:

— annul Articles 1, 2, 4, 8, and 9 of the contested decision, in so far as they concern it;

— in the alternative, annul or reduce the fine imposed on it;

— order the Commission to pay the costs.

51 BCA (T-54/95) claims that the Court should:

— order the Commission to pay the costs, including the costs and interest incurred in lodging a security or for the possible payment in full or in part of the fine.

53 Castle (T-56/95) claims that the Court should:

— annul in whole or in part the contested decision in so far as it concerns it;

— annul or reduce the fine imposed on it;

— order the Commission to pay the costs.

54 Heracles (T-57/95) claims that the Court should:

— the calculation of the applicant's fine, in particular the Commission's draft Decisions presented to the Advisory Committee, in which it is understood but cannot be proven by the applicant, that the following paragraph appears (which does not appear in the contested decision): 'Account should be taken of the Greek producers' argument that they were constrained by circumstances to sign the contracts with certain European producers on the sale of cement and clinker. Consequently, the Commission considers that it should not impose fines on Titan and Heracles in respect of the agreements and concerted practices relating to the purchases of Greek cement and clinker referred to in point 56';

— order that the Commission pay the costs.

55 Uniland (T-58/95) claims that the Court should:

— annul at the very least Articles 1, 4(1), 4(2) and 4(3)(a) and 9 of the contested decision;

— in the alternative, reduce the fine imposed on it;

— order the Commission to pay the costs, including the costs arising from the lodging and maintenance of the security for the fine.

— order the Commission to pay the costs, including the expenses of lodging and maintaining the security for the fine.

57 In its reply, Oficemen (T-59/95) further asks the Court to call on the Commission to disclose all documents relating to the correspondence and the reports included in its case file in order to ascertain whether the mandatory formality that the Commission seek the opinion of the Advisory Committee, as required by Regulation N o 17, was duly complied with.

58 Irish Cement (T-60/95) claims that the Court should:

— annul the contested decision;

— annul or reduce the fine imposed on it;

— order the Commission to pay the costs.

— order any necessary measures of inquiry.

60 SECIL (T-62/95) claims that the Court should:

— annul the contested decision in so far as it concerns it and, accordingly, annul the fine imposed upon it;

—· in the alternative, reduce that fine;

— order the Commission to pay the costs;

— order any necessary measures of inquiry and, in particular, order the Commission to place on the file copies of the chapters of the SO which were not sent to it and all the necessary information to assess the legality of Article 9 of the contested decision.

62 Titan (T-64/95) claims that the Court should:

— annul or modify the contested decision in so far as it concerns it, by annulling or reducing the fine imposed on it;

— order the Commission to pay the costs;

— order such alternative or additional measures as justice may require.

63 Italcementi (T-65/95) claims that the Court should:

— annul in whole or in part the contested decision in so far as it concerns it;

— annul the contested decision in so far as it concerns it;

— in the alternative, annul or reduce the fine imposed on it;

— order the Commission to pay the costs.

65 H o r n o s Ibéricos (T-69/95) claims that the Court should:

— annul the contested decision in so far as it concerns it;

— in the alternative, annul or reduce the fine imposed on it;

— annul in whole or in part the contested decision in so far as it concerns it;

— annul or reduce the fine imposed on it;

— order the Commission to pay the costs.

67 EUROC (T-71/95) claims that the Court should:

— annul in whole or in part the contested decision in so far as it concerns it;

— annul or reduce the fine imposed on it;

— order the Commission to pay the costs.

69 Blue Circle (T-88/95) claims that the Court should:

— annul the contested decision;

— in the alternative, annul in part, and accordingly reduce, the fine imposed on it;

— order the Commission to pay the costs.

70 A GC I (T-103/95) claims that the Court should:

CIMENTERIES CBR AND OTHERS V COMMISSION

— annul the contested decision or, at the very least, vary it;

— order the Commission to pay the costs.

72 In Cases T-25/95 and T-30/95, the Commission contends that the Court should:

— declare the application inadmissible in so far as it concerns the rules on fair competition;

— dismiss the remainder of the application;

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

— dismiss it as unfounded in so far as it is directed at the contested decision;

— order the applicant to pay the costs.

75 The parties having been heard on the matter, the Court of First Instance (Fourth Chamber, Extended Composition) considers it is appropriate to join the present cases for the purpose of the judgment, pursuant to Article 50 of its Rules of Procedure.

76 All the actions seek annulment of the contested decision. O n e applicant, Italcementi, also seeks annulment of the decision of 23 September 1993 by which the Commission terminated the international part of the proceeding against 12 German undertakings and six Spanish undertakings. The Court will first examine Italcementi's claim that the latter decision should be annulled.

78 Italcementi (T-65/95) complains that the Commission did not send to it the decision of 2 3 September 1993 to terminate the proceeding against 12 German undertakings and six Spanish undertakings. It became aware of that decision upon reading the contested decision, as the Commission's letter of 2 7 September 1993 (contested decision, recital 4, paragraph 2) did not m a k e any reference to it. N o r does the contested decision give reasons to justify that decision. Italcementi submits that it was therefore deprived of the right to submit observations and to bring an action against that decision. The latter decision was an essential act in preparation for the contested decision, without which the contested decision would have been different both in form and substance. Italcementi considers that its action is admissible as a challenge to the decision of 23 September 1 9 9 3 . First, it has brought that action within the period laid down in Article 173 of the EC Treaty (now, after amendment, Article 2 3 0 EC), which began to run when that decision came to its knowledge. Second, it has a legal interest in

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CIMENTERIES CBR AND OTHERS V COMMISSION

contesting that decision, because that decision is inconsistent with the joint responsibility which the Commission attributed to all the European cement producers and infringes the principle of non-discrimination. It also seeks an order that the Commission produce the text of its decision of 23 September 1993. It states that if its claim for annulment of the latter decision is allowed, the contested decision must also be annulled.

83 In any event, since Italcementi in reality complains of irregularities in an act that was preparatory to the contested decision — irregularities allegedly affecting the legality of that decision because they constituted infringements of Italcementi's rights of defence, of the obligation to state reasons and of the principle of non-discrimination — those objections must be examined in the context of the claim for annulment of the contested decision (see paragraphs 461 to 471 below). It is settled law that any irregularities affecting a preparatory act which cannot itself be the subject of an action for annulment may be relied upon in an action directed against the definitive act; in the present case, that act is the contested decision, the decision of 23 September 1993 representing a preparatory step for it (IBM v Commission, cited in paragraph 80 above, paragraph 12; Cimenteries CBR and Others v Commission, cited at paragraph 11 above, paragraph 4 7 , and Joined Cases T-39/92 and T-40/92 CB and Europay v Commission [1994] ECR II-49, paragraphs 46 to 62).

84 Since this claim is inadmissible, there is no need to grant Italcementi's application for disclosure of the decision of 23 September 1993.

II - 549

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/9S, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

The claim for annulment of the contested decision

I — The pleas alleging various infringements of essential procedural requirements during the administrative procedure

86 T h e first plea alleges infringement of the rights of the defence in that the whole of the SO a n d the documents relating thereto were n o t accessible during t h e administrative procedure. O n e applicant submits that the incomplete disclosure of the objections also infringes the principle of equal treatment. T h e second, third a n d fourth pleas allege infringement of the rights of t h e defence, infringement of the principle of equal treatment a n d infringement of Article 190 of the E C Treaty (now Article 2 5 3 EC) as a result of the Commission's a b a n d o n m e n t of the national objections and, in regard t o some undertakings, of the international objections (see paragraphs 14 a n d 15 above). T h e fifth plea alleges that t h e Commission committed a procedural irregularity in dropping some of the international objections. T h e sixth plea alleges that t h e imprecise a n d incomplete nature of the SO infringes t h e rights of the defence. T h e seventh plea is grounded o n infringement of the rights of t h e defence a n d of Council Regulation N o 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59) because certain documents sent to the applicants during the administrative procedure were not translated. The eighth plea alleges infringement of the rights of the defence as a result of the incorrect translation and citation of some documents. The ninth plea alleges infringement of the rights of the defence and of Article 11 ( 1 ) of Regulation No 99/63 because of the allegedly inadequate period for replying to the SO. The 10th plea alleges infringement of the rights of the defence, of Article 19(1) of Regulation No 17, and of Articles 7(1), 8(1) and 9 of Regulation No 99/63 because of the faulty organisation of the hearings. The 11th plea alleges infringement of the principle of ex officio investigation. The 12th plea is based on infringement of the rights of the defence in that the duration of the administrative procedure was excessive. The 13th plea alleges infringement of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (hereinafter 'the ECHR'). The 14th plea alleges that the Commission failed to observe the principle of the presumption of innocence. The 15th plea alleges infringement of the parties' right not to give evidence against themselves. The 16th plea alleges infringement of Article 10 of Regulation No 17 in that the Commission's consultation of the Advisory Committee was defective. The 17th, 18th, 19th and 20th pleas allege infringement, respectively, of the principles of subsidiarity, sound administration, legal certainty and protection of legitimate expectations during the administrative procedure. The 21st plea alleges that the Commission infringed the principle of collegiality when it adopted the contested decision. Finally, the 22nd plea alleges defective authentication and notification of the contested decision.

89 O n the basis of the documents and information obtained by its officials during investigations carried out at European cement producers and their trade associations between April 1989 and July 1990, and based on replies to requests for information sent under Article 11 of Regulation N o 17 and to a statement of objections relating to Article 15(1) of that regulation (see paragraph 2 above), the Commission concluded that there was probably a system of agreements or concerted practices, both at European level and at that of various Member States, between the European cement producers.

90 In those circumstances, the Commission decided to initiate proceedings for infringement of Article 85(1) of the Treaty against 76 undertakings and associations of undertakings in the cement industry. In the course of those proceedings, in November 1991 it sent to all the undertakings and associations of undertakings the SO provided for in Article 2( 1 ) of Regulation No 99/63.

91 The first page of the SO refers to three case numbers: 27.997, 33.126 and 33.322. Cases 33.126 and 33.322 are identified as the 'Cement' cases. Case 27.997 concerns the 'Common Price and Marketing Arrangements' (the 'CPMA'). They are pricing arrangements and conditions of sale adopted in the context of the Cement Makers' Association (the 'CMF'), a United Kingdom association, which were notified by it to the Commission in June 1973.

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JUDGMENT OF IS. 3. 2000 — JOINED CASES T-25/9S, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/9S, T-48/95, T-50/95 TO T-65/9S, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

94 The chapters relating to the international agreements and concerted practices (Chapters 2, 10, 11 and 12) and the full index of the SO were sent to each of the applicants. The chapters relating to the national agreements and concerted practices (Chapters 3 to 9 and 13 to 19) were sent only to the undertakings and associations of undertakings established in the M e m b e r State in question. Thus, addressees of the SO w h o were established in a Member State in which there was, according to the SO, a national agreement or concerted practice between the cement producers of that State received the chapters of the SO relating to the international agreements and concerted practices and the chapters of the SO concerning that national agreement or concerted practice, but not the chapters concerning the other national agreements and concerted practices. An addressee of the SO w h o was established in a M e m b e r State which had not been specifically dealt with in the SO received only the chapters of the SO relating to the international agreements and concerted practices.

95 The Commission did not append to the SO the documents supporting its conclusions or the other documents which it considered relevant. In view of the large number of documents in question, it prepared a box of documents, which was made available to each addressee of the SO when it inspected the file at the end of 1991 (hereinafter 'the Box'). By that time, at the latest, the addressees of the SO had received the List (see paragraph 5 above). Rugby (T-53/95) states, however, that it received the List only with the Commission's letter of 4 June 1992.

98 All the documents on the List (see paragraph 5 above) will be referred to as 'the investigation file'.

99 As regards access to the investigation file during the administrative procedure, each undertaking or association of undertakings had access to the documents which the Commission had obtained from that undertaking or association of undertakings, together with the documents relating to the chapters of the SO which had been sent to it. As all the applicants in the present cases received the chapters relating to the international agreements and concerted practices (SO, chapters 2, 10, 11 and 12), they all had access to the documents classified as accessible on the List (see paragraph 5 above) that related to those chapters of the SO.

100 The Box (see paragraph 95 above) did not contain all the documents relating to the international agreements and concerted practices which had been classified on the List (see paragraph 5 above) as accessible to all addressees ('A' or 'A: all' or 'A: European producers'). According to the Commission, it contained the most important documents concerning the international agreements and concerted practices.

101 As regards access during the administrative procedure to the documents relating to the national agreements and concerted practices, the Commission put together a national file for each country concerned by the national chapters of the SO, that is to say, Italy, the United Kingdom, France, Germany, Greece, Spain and Portugal. The applicants had access only to the national file of the Member State in which they were established.

104 T h e following 30 applicants complain that the Commission did n o t serve the whole of the SO on them: CBR (T-25/95), Cembureau (T-26/95), FIC (T-30/95), E N C I (T-31/95), V N C (T-32/95), Ciments Luxembourgeois (T-34/95), Dyckerhoff (T-35/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), Alsen-Breitenburg (T-45/95), Nordcement (T-46/95), B D Z (T-48/95), Buzzi (T-51/95), Valenciana (T-52/95), Asland (T-55/95), Castle (T-56/95), Heracles (T-57/95), Uniland (T-58/95), Oficemen (T-59/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL (T-62/95), ATIC (T-63/95), Italcementi (T-65/95), Aker (T-70/95), E U R O C (T-71/95), Blue Circle (T-88/95) and the AGCI (T-103/95). They consider, first, that since the SO is presented as a single document, the whole of that document should have been sent t o them. Second, they submit that the SO itself states that it was impossible t o separate the national agreements and concerted practices from the international ones; the addressees of the SO should therefore have been sent all the national chapters in it. Lastly, Cembureau considers that the failure t o send the whole of the SO infringes the principle of equal treatment.

1. T h e inseparability of the SO and the applicants' right of access t o the whole of it

105 T h e applicants in question submit that under Article 2(1) of Regulation N o 99/63 and Article 19(1) of Regulation N o 1 7 they should have received, during the administrative procedure, all the chapters of the SO relating to the national agreements and concerted practices. Where the Commission issues a single SO, all the addressees of the SO should be able to peruse all the objections.

associations of undertakings concerned be afforded the opportunity during the administrative procedure to make known their views on the truth and relevance of the facts, charges and circumstances relied on by the Commission (Case 85/76 Hoffman-La Roche v Commission [1979] ECR 461, paragraph 11; Cimenteries CBR and Others v Commission, cited at paragraph 11 above, paragraph 39; Case T-30/91 Solvay v Commission [1995] ECR II-1775 paragraph 59; T-36/91 ICI v Commission [1995] ECR II-1847, paragraph 69). Thus, the SO must give the undertakings and associations of undertakings concerned all the information necessary to enable them properly to defend themselves, before the Commission adopts a final decision (see, inter alia, Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307 paragraph 42, hereinafter referred to as 'Woodpulp II'; Case T-352/94 Mo och Domsjö v Commission [1998] ECR II-1989, paragraph 63).

107 In the present case, the Commission did not include in the contested decision the objections of the SO relating to the national agreements and concerted practices. It had taken the decision on 23 September 1993 to drop the objections relating to those agreements and concerted practices and to terminate the proceeding relating to the corresponding chapters of the SO (see paragraph 14 above).

108 In those circumstances, the applicants cannot use inseparability of the SO as a ground for arguing that their rights of defence were infringed by the failure to send the chapters relating to the national agreements and concerted practices other than the chapter relating to the Member State in which the particular addressee of the SO was established. An infringement of the rights of defence during the administrative procedure must be assessed in the light of the objections adopted by the Commission in the SO and in the contested decision (see, to that effect, the judgments cited in paragraph 106 above, T-30/91 Solvay v Commission, paragraph 60, and T-36/91 ICI v Commission, paragraph 70).

link between the national and international agreements and concerted practices is apparent from the wording of the SO. Thus, point 93(b) of the SO stated that 'it [was] impossible to separate the national agreements, decisions and concerted practices from the European ones, since both form an inseparable whole'. Furthermore, paragraphs 58 and 59 of the SO (see paragraph 119 below) emphasise the inseparable link between the various infringements. The Commission's decision of 23 September 1993 to drop the objections relating to the national agreements and concerted practices and to terminate the proceeding relating to those chapters of the SO did not cure the infringement of the rights of the defence, because there is an undeniable link between the objections relating to the national agreements and concerted practices and those relating to the international agreements and concerted practices.

1 1 1The Court points out that the chapters of the SO relating to the national agreements and concerted practices were presented as separate chapters (chapters 3 to 9 and 13 to 19), which enabled the Commission to send 'partial SOs' to the various addressees of the SO.

113 In the chapter in 'The Facts' of the SO relating to Germany there is a part regarding the information exchanges between SFIC and BDZ (chapter 6, point 49(a)(iii)) and a part regarding the Franco-German agreement and/or concerted practice (chapter 6, point 49(b)(iv)). Those points are reproduced in the 'Legal Assessment' of the SO relating to Germany (chapter 16, point 84). The chapters of the SO dealing with Italy contain a detailed discussion of the agreement concluded between the Italian producers and Calcestruzzi in order to protect the Italian industry against imports of Greek cement (SO, chapter 3, point 35; chapter 13, point 70(b)). The chapter in 'The Facts' of the SO relating to Greece deals with the problem of exports from it (SO, chapter 7, point 53). Finally, the chapters dealing with Spain and Portugal contain a part which deals with the Hispano-Portuguese agreements and/or concerted practices (SO, chapter 8, point 55(c); chapter 9, point 56(b); chapter 18, point 87; chapter 19, point 90).

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116 However, it is apparent from the national chapters, and in particular the chapter dealing with Germany, that, for their proper operation, the national agreements and concerted practices were dependent on the existence of agreements and concerted practices at international level.

117 T hus, in t h e c h a p t e r i n the ' L e g al Assessment' relating to Germany, the Commission explained (SO, chapter 16, point 84): 'German cement producers were all the more interested in avoiding exports to other EEC countries whose producers were members of Cembureau, since this would violate the Cembureau "principle" discussed in the first part of this Statement of Objections. It should be noted that a [German] market sharing agreement of this extent could never have been imp emented with such rigidity and stability throughout the last thirty years, if the German market had not been isolated from cement imports by means of this "principle". The "principle", by eliminating or limiting transfrontier flows, was the necessary condition of maintaining the restrictive agreements and practices in those Member States, whose producers were members of Cembureau. Exchange of sensitive information between the French and German cement organisations and coordination of exports to the Benelux countries are among the factors that helped the German cement leaders maintain a tight control of their market throughout the years and affected at the same time cement interstate trade.... It follows that the [German] agreements on the exchange of market information and on sharing local markets and customers, both in themselves and as the consequence or complement on a local or regional basis of the Cembureau "principle of not transhipping to internal European markets", appreciably affect trade between Member States by consolidating national compartmentalisa- tions which obstruct the economic interpénétration desired by the Treaty.'

119 Nor, lastly, can the applicants base an argument on points 58 and 59 of the SO. Point 58, which introduces the legal assessment of the SO, states that 'the agreements and concerted practices described above are caught by the prohibition laid down in Article 85(1), and the undertakings in question are undertakings within the meaning of that Article, since they carry out economic activities in the cement production and marketing sectors'. Although that point is supposed to apply to all the objections referred to in the SO, both at national level and at international level, it does not show that there is any link between all those objections. It merely concerns the application of Article 85 of the Treaty to all those objections and the definition of 'undertaking' for the purposes of that provision. Point 59 of the SO, which is the first point in the legal assessment of the international agreements and concerted practices described in chapter 2, sections 1 and 2 (that is to say, the Cembureau agreement and the ETF), states: 'Within the framework of and through Cembureau, the European cement producers agreed on plans, arrangements and measures, adopted under Cembureau's institutional structure and within the framework of a system of meetings and continuous bilateral and multilateral contacts promoted by the Cembureau institutions, designed to ensure non-encroachment on respective home markets, the sharing of markets in accordance with quotas or target volumes or temporary measures designed to regulate and control sales volumes, and the exchange of information on prices and exports and imports so as to enable them to coordinate their action more effectively. The Commission considers that all these arrangements adopted within the framework of Cembureau and the bilateral and multilateral meetings and contacts constituted a single and continuous "agreement", as from the dates indicated below, within the meaning of Article 85(1).' Point 59 makes no reference whatsoever to the objections set out in the national chapters of the SO. The 'single agreement' referred to in it concerns only the international agreements and concerted practices. The fact that the international agreements and concerted practices were characterised as a 'single agreement' does not therefore show that the international and national agreements and concerted practices were inseparably linked, as alleged.

123 T h a t argument must be rejected. T h e principle of equal treatment precludes the application of different rules t o comparable situations or the application of the same rule to different situations (Case C-279/93 Schumacher [1995] ECR I-225, paragraph 30, and Case C-107/94 Asscher [1996] ECR I-3089, paragraph 40). However, in the present case, all the addressees of the SO were n o t in the same situation: although some of them, such as Cembureau, were the subject only of international objections, others were deemed to have participated in national agreements and concerted practices in the Member State in which they were established. T h e Commission was therefore entitled to send to the latter category of addressees the national chapters relating to the M e m b e r State in which they were established as well as t h e international chapters of the SO.

C — Inaccessibility of some parts of the SO and of some documents in the investigation file which might have contained exculpatory evidence

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-Ć5/95, T-68/95 TO T-71/9J, T-87/95, T-88/95, T-103/95 AND T-104/95

argument in question (2). The analytical framework for assessing an argument based on the inaccessibility of an alleged item of exculpatory evidence during the administrative procedure will then be explained (3). That analysis will cover both the documents in the investigation file that were not accessible and the parts of the SO that were not communicated. The applicants concerned consider that both the documents in the investigation file and the parts of the SO that were kept secret during the administrative procedure might have contained exculpatory evidence. Once the principles have been established, they will be applied to the case in point (4). Lastly, the Court will examine the general arguments relating to infringement of the rights of the defence during the administrative procedure, those arguments having been raised in pleadings lodged following the measures of organisation of the procedure (5).

1. Organisation of access to the file during the administrative procedure

127 Some applicants criticise the composition a n d the inspection of the file t o which they were given access during the administrative procedure. They state that there were irregularities in the organisation of access to the investigation file (1.1) even in regard t o accessible documents. The 39 applicants referred t o in paragraph 124 above also submit t h a t the organisation of access to the file during the administrative procedure w a s irregular because they were n o t given access t o some documents (1.2).

CIMENTERIES CBR AND OTHERS V COMMISSION

to determine the evidence used by the Commission in support of those objections and, accordingly, to properly prepare its defence.

132 T h e Court points out that the applicant is not claiming that the documents to which it had access were illegible, but solely that their pagination was illegible. However, in the parts of the SO relating to the Cembureau agreement and the ETE, which are the only parts which relate to the objections raised against Holderbank in the contested decision (Articles 1 and 4), the various items of evidence were identified not by reference to any system of pagination, but by reference to their nature (minutes of a meeting, internal m e m o r a n d u m , letter, telex, etc.), their date and/or origin. Furthermore, there is no dispute that the documents in the Box (see paragraph 95 above) followed the order of the SO. Any illegibility of the pagination of some copies of documents could not therefore have prevented the applicant from linking those documents to the passage in the SO where they were mentioned. Consequently, Holderbank's argument must be rejected.

133 Uniland and Oficemen submit that the SO did not identify the documents by reference to the numbering which had been given to them in the investigation file. It w a s therefore extremely difficult to link documents in the Box (see paragraph 95 above) to the relevant passages in the SO. This latter criticism is also made by Holderbank, Hornos Ibéricos, Aker and E U R O C .

134 It is not disputed that the documents in the Box (see paragraph 95 above) followed the order of the SO. Furthermore, in the SO the documents were identified by reference to their nature, date and/or origin. In those circumstances, there could have been no particular problems in linking the documents in the Box t o the relevant passages of the SO. The argument must therefore be rejected.

136 The Court points out, however, that there was nothing to prevent ENCI, V N C and Uniland from requesting the Commission to send them a new copy of the documents which they had difficulty in reading. Since they did not take that opportunity during the administrative procedure, they cannot n o w claim that their rights of defence were infringed. As regards the alleged illegibility of the documents to which Dyckerhoff was given access during the administrative procedure, the Court points out that, as the applicant acknowledges, the Commission sent to it by letter of 11 February 1992 a new copy of the documents alleged in its letters of 2 4 and 31 January 1992 to be illegible. If those new copies proved, in turn, to be illegible, that is because of the p o o r quality of the originals, for which the Commission cannot be held responsible. O n any view, the fact that original documents are illegible does not mean that the applicants' rights of defence were infringed: the position was the same for both the applicants and the Commission. The Commission did not therefore have better knowledge of documents that were illegible or hardly legible t h a n the applicants could have gained through consulting those documents. The arguments of ENCI, V N C , Dyckerhoff and Uniland must therefore be rejected.

137 Cimpor alleges that the List (see paragraph 5 above) contains errors. By way of example, it states that it had only partial access to the note on the meeting of 23 January 1987 between the Portuguese producers and the Spanish association (contested decision, recital 2 1 , paragraph 4; documents 33.322/1406 to 1408), even though in the List it was stated to be one of the documents which was accessible in its entirety.

administrative procedure access was not given to all documents in the investigation file other than the Commission's internal notes and documents containing business secrets or other confidential information. Furthermore, contrary to the principles laid down in the Soda Ash judgments, in particular in those cited in paragraph 106 above, T-30/91 Solvay v Commission (paragraphs 93 and 94) and T-36/91 ICI v Commission (paragraphs 103 and 104), the Commission did not provide them with non-confidential versions of the documents which, it claimed, contained business secrets or other confidential information, or prepare a list allowing the undertakings and associations of undertakings concerned to assess whether it was appropriate to request access to specific documents. Since the documents which continued to be inaccessible might have contained exculpatory evidence, those defects should lead to a finding of infringement of the rights of the defence and to annulment of the contested decision. CBR, FIC, ENCI, VNC, Dyckerhoff, SFIC, Heidelberger, Asland, SECIL, ATIC and Hornos Ibéricos also refer to the general principle of equality of arms (judgments cited in paragraph 106 above, T-30/91 Solvay v Commission, paragraph 83, and T-36/91 ICI v Commission, paragraph 93).

1 4 1 In the present case, it is common ground that, during the administrative procedure, the applicants were not granted access to the large majority of documents in the investigation file. Access to around three quarters of the documents itemised on the List (see paragraph 5 above) was denied.

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JUDGMENT OF 15. 3. 2000 —JOINEDCASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95 144 It follows that in order to allow the undertakings and associations of undertakings in question to defend themselves effectively against the objections raised against them in the SO, the Commission has an obligation to make available to them the entire investigation file, except for documents containing business secrets of other undertakings, other confidential information and internal documents of the Commission (judgments in Hercules Chemicals v Commission, cited in paragraph 140 above, paragraph 54, and BPB Industries and British Gypsum v Commission, cited in paragraph 142 above, paragraph 2 9 ; Opinions of Advocate General Léger in Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, at I-867, point 116, and in Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, at I-8422, point 150).

145 In the light of those principles, it is necessary to determine whether the Commission gave proper access to its investigation file during the administrative procedure.

146 As CBR and Heracles observe, the Commission appears to have based its refusal to grant access to the entire investigation file on considerations stemming from the confidential nature of the documents in question. It thus seems to have taken the view during the administrative procedure that a document obtained by it in the exercise of the powers conferred on it by Regulation N o 17 was accessible to third parties only where it had relied on it as evidence against them in the SO (see the order in Cimenteries CBR and Others v Commission, cited in paragraph 8 above, paragraph 42, and the judgment in Cimenteries CBR and Others v Commission, cited in paragraph 11 above, paragraph 30).

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addressees of the SO was not sufficiently precise. Since it did not describe the content of the documents listed in it (see paragraph 96 above), it did not allow the undertakings and associations of undertakings concerned to assess whether it was expedient to request access to specific documents.

149 The Commission cannot therefore allege, as it has in the cases between it and Dyckerhoff, Heidelberger, Valenciana, Asland, Holderbank and Hornos Ibéricos, that in the present case there can be no question of lack of proper access to the investigation file, because the addressees of the SO could, on the basis of the list itemising all the documents in its investigation file, have requested more extensive access to the file. In any event, where the undertakings or associations of undertakings did request additional access to the documents in the investigation file, the Commission did not grant those requests, which caused some undertakings even to bring an action before the Court (see the judgment in Cimenteries CBR and Others v Commission, cited in paragraph 11 above). It follows that in the present cases the fact that during the administrative procedure some applicants did not request the Commission to grant them more extensive access to the investigation file or to send specific documents to them, cannot, in view of the obvious pointlessness of doing so at that time, lead to a plea that this was an infringement of their rights of defence being time-barred before the Court of First Instance (Case T-30/91 Solvay v Commission, cited in paragraph 106 above, paragraph 96).

153 The Court also points out that during the hearings in Cases T-25/95, T-45/95, T-46/95 and T-60/95, the Commission itself acknowledged that the organisation of access to the file during the administrative procedure in those cases was not as transparent as it should be in an investigation into agreements and concerted practices between undertakings and associations of undertakings. It made that statement when commenting on the usefulness for the applicants' defence of the internal note of Cimpor of 17 February 1983 written by Mr Toscano Jr (documents 33.322/314 to 344) (see paragraph 1123 below). It accepted that this note, in so far as it related to the Head Delegates meeting of 14 January 1983 referred to in point 19(a) of the contested decision, should have been accessible to the applicants during the administrative procedure. During the hearings in Cases T-31/95, T-32/95, T-38/95, T-52/95, T-53/95 and T-56/95 it also acknowledged that there had been errors in organisation of access to the investigation file during the administrative procedure.

155 The Court points out that the Commission's statements that proper access to the investigation file was not granted during the administrative procedure are in line with the finding made by the Court solely on the basis of the arguments submitted during the written and oral procedure by the applicants referred to in the previous paragraph (see paragraph 152 above). In those circumstances, the applicants' requests that the Court should take into account statements made by the Commission in other 'Cement' cases are devoid of purpose. As regards the requests for the re-opening of the oral procedure, the Commission has not acknowledged in any of the present 'Cement' cases, either in its pleadings or at the hearing, that it infringed the rights of the defence of the applicants during the administrative procedure by not giving access to some documents in the investigation file (see paragraph 237 et seq. below). For that reason, its statements do not constitute a new fact of such a nature as to be a decisive factor in the outcome of the proceeding (see, to that effect, Case C-415/93 Bosman and Others [1995] ECR I-4921, paragraph 53; Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraphs 127 and

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128; Case C-200/92 P ICI v Commission [1999] ECR I-4399, hereinafter 'C-200/92 P ICI v Commission', paragraphs 60 and 61; Case C-227/92 P Hoechst v Commission [1999] ECR I-4443, paragraphs 104 and 105; and Case C-234/92 P Shell v Commission [1999] ECR I-4501, paragraphs 63 and 64). There is therefore no need to re-open the oral procedure in Cases T-26/95, T-65/95 and T-87/95, nor, therefore, to grant Italcementi's requests that, in preparation for a new oral procedure, there should be added to the file in Case T-65/95 the minutes of the hearing in Cases T-25/95, T-31/95, T-32/95, T-52/95 and T-60/95 and the entire transcript of the hearing in those cases.

II - 567

JUDGMENT OF 15. 3. 2000 - J O I N E D CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95,T-50/95 T 0 T - 6 5 / 9 5 , T - 6 8 / 9 5 T 0 T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

159 It is therefore necessary to examine whether the rights of the defence of the 39 applicants concerned were infringed because they were not given access to certain passages of the SO and to documents in the investigation file which might have contained exculpatory evidence.

160 The Commission alleges that the applicants' assertion that their rights of defence were infringed is purely theoretical. Referring to the judgment in BPB Industries and British Gypsum v Commission, cited in paragraph 142 above, paragraph 3 5 , it considers that the Court must reject the vague and hypothetical assertion that there had to be exculpatory evidence in the chapters of the SO and the documents of the investigation file which were inaccessible to the applicants during the administrative procedure.

161 That preliminary argument by the Commission cannot be upheld. Applicants who have raised a plea alleging infringement of their rights of defence cannot be required to set out in their application detailed arguments or a consistent body of evidence to show that the outcome of the administrative procedure might have been different if they had had access to certain documents which were in fact never disclosed to them. Such an approach would in effect amount to requiring a probatio diabolica (Opinion of Advocate General Léger in BPB Industries and British Gypsum v Commission, cited in paragraph 144 above, point 119).

164 In those circumstances, by decision notified to the parties in the 39 cases concerned (see paragraph 124 above) on 2 October 1996 (hereinafter 'the measure of 2 October 1996'), the Court requested the Commission to authorise the applicants in question to consult the national chapters of the SO at its premises and, in regard to each of the national agreements and concerted practices, to give them access to the same national file as that sent during the administrative procedure to the addressees of the SO established in the Member State concerned. The applicants were requested to identify the passages of the SO and the relevant documents which had not been sent to them during the administrative procedure and to explain in what respect the outcome of the administrative procedure might have been different if those items had been made available to them during that procedure. They were requested to attach to their written submissions a copy of each document commented upon. The Commission was requested to lodge a written reply in each of the cases concerned.

165 As a result it became apparent that all the documents in the files relating to the national agreements and concerted practices were part of files 27.997, 33.126 and 33.322, as itemised on the List (see paragraph 5 above). They were subsets of documents from the Commission's investigation file.

166 By decision notified on 2 7 February 1997 the Court requested the Commission to specify exactly which documents were rendered accessible to the applicants following the adoption of the measure of 2 October 1996 and to identify them on the List (see paragraph 5 above). The Commission replied to that request by letters of 8 and 17 April 1997.

170 All the applicants concerned by the measures of 2 October 1996 and 18 and 19 June 1997, except for Ciments Luxembourgeois, lodged observations after they had inspected the Commission's file. The Commission responded in each of those cases.

171 Before examining the arguments which the applicants have set out in their pleadings, the Court points out that in those pleadings Dyckerhoff, Vicat, Heidelberger, Lafarge, Unicem, Blue Circle and AGCI have made some comments that are unrelated to the measures of organisation of procedure, with no specific reference to a document in the investigation file. Those comments must be disregarded: observations lodged in response to measures of organisation of procedure must not extend the written procedure as a whole. For the same reasons, documents which are not from the investigation file must be excluded from consideration. The Court will thus exclude, first, the documents in Annexes IV, Vand VI to Lafarge's observations of 10 February 1997 lodged following the measure of 2 October 1996 and the documents in Annexes 87 and 88 to Lafarge's observations of 28 January 1998 lodged following the measure of 18 and 19 June 1997. It is pointed out, moreover, that those documents do not bear references to the numbering in files 33.126 and 33.322 indicated on the List (see paragraph 5 above). Nor can Lafarge allege, as it does in its observations of 28 January 1998, that the documents which it adduces in Annexes IV, V and VI to its observations of 10 February 1997 correspond to documents 33.126/16473 and 16474 adduced in Annex 41 to its observations of 28 January 1998. The alleged correspondence is not apparent from reading those documents.

174 In their pleadings lodged on 7 February 1997 and 13 February 1997 respectively, Rugby, on the one hand, and Castle, Aker and EUROC, on the other, asserted that the Commission had not correctly responded to the Court's requests (see paragraph 163 above). They claimed that the Commission had not sent either the files concerning the national agreements and concerted practices, or the whole of the file concerning the international agreements and concerted practices. Moreover, it had not disclosed certain documents from the correspondence between the applicants and its officials.

175 T h e Court finds that the first objection has become devoid of purpose following the measures ordered on 2 October 1996, 18 and 19 June 1997. As to the second objection, the applicants concerned do not indicate how the failure to produce the whole of the correspondence between themselves and the Commission could have infringed their rights of defence. The two complaints must therefore be rejected.

2.3.2. The measure of 2 October 1996

176 Pursuant to the measure of 2 October 1996, the 39 applicants concerned were given access to the whole of the SO and to file 27.997 relating to the CPMA, to which reference is made in the chapters of the SO concerning the United Kingdom (Chapters 4 and 14). T h e argument submitted by Uniland and Oficemen in their pleadings lodged following the measure of 18 and 19 June 1997, claiming that the documents in file 2 7 . 9 9 7 were not made available to them, must therefore now be rejected.

177 The 39 applicants concerned also had access, following the measure of 2 October 1996, to the documents in files 33.126 and 33.322 relating to the national agreements and concerted practices (see paragraphs 164 to 167 above).

182 Vicat, Unicem, Asland and H o r n o s Ibéricos also criticise the Commission's reliance on the plea that certain documents were confidential at the time that access to the national files w a s organised following the measure of 2 October 1996. Substantial parts of some documents were blanked out because of their confidential nature. T h e applicants complain that the Commission did not send t o them a non-confidential version of documents t o whicn they did n o t have access. Unicem complains in particular that the Commission did n o t give access t o certain documents relating t o events that took place 5 to 10 years previously and which were thus n o longer of the slightest business sensitivity. Asland complains that the Commission did n o t enquire of the undertakings and/or associations of undertakings concerned as t o the status of documents for which confidentiality had been claimed in 1990 or in 1 9 9 1 . It refers, by w a y of example, to documents 33.322/2897 t o 2 9 0 2 , t o which it was given partial access when it inspected the file at the Commission's offices on 12 November 1996, despite the fact that Hispacement, the

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undertaking concerned by those documents, had withdrawn its reservation of confidentiality more than three years previously. Vicat and Hornos Ibéricos refer to the same documents of Hispacement in their submission that the Commission arbitrarily pleaded confidentiality.

1S3 The Court points out that the purpose of the measure of 2 October 1996 was to grant to the 39 applicants concerned (see paragraph 124 above) access, in respect of each of the national agreements and concerted practices, to the same national file as that which the addressees of the SO established in the Member State concerned had been given access during the administrative procedure. Pursuant to that measure, the Commission did not therefore have to enquire of the undertakings and/or associations of undertakings concerned as to the appropriateness of maintaining the confidentiality claimed for certain documents during the administrative procedure.

II - 573

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/9J TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

the documents containing those items. The Commission was requested to insert those non- confidential versions or non-confidential summaries in the files organised in accordance with the numbering of the List, in place of the documents containing confidential items.

187 After receiving files 33.126 and 33.322 the Court noted that, as Dyckerhoff, Ciments Français, Lafarge, Unicem, ATIC and Italcementi h a d submitted in their observations, the Commission had n o t specified the nature of documents 33.126/19057 t o 19156, classified on the List (see paragraph 5 above) as internal documents of the Commission, in a set of documents 33.126/19026 t o 19156. In reply t o a written question from the Court, the Commission explained that an error in numbering h a d been committed in the Registry of the Directorate- General for Competition (DG IV) when all the documents in the investigation file were registered, and that documents 33.126/19057 t o 19156 did n o t exist.

188 T h e Commission's explanations in that regard must be accepted. T h e summary and pagination of file N o 4 9 of the investigation file, as m a d e up by the Registry of D G IV, refer t o pages 33.126/18612 t o 19056, whereas the summary and pagination of file N o 50 refer t o pages 33.126/19157 t o 1 9 4 3 3 . It can therefore be concluded that there was an error of numbering when file N o 50 w a s made u p .

193 That explanation may be accepted, particularly since the Commission resubmitted, prior to the hearings, a copy of the pages in question, which were thus part of the file in each of the 39 cases concerned.

194 Lafarge also alleges that documents 33.126/1691 and 33.322/3 are incomplete. However, no part of those documents has been blanked out. The applicant's argument therefore has no factual basis.

195 Lafarge, Uniland and Oficemen submit that they were not given access to documents 33.126/1 to 165 and 11494 to 11517. Uniland and Oficemen made the same objection in regard to documents 33.322/1092 to 1183 and 1185 to 1194, and Unicem in regard to docu- ment 33.126/19056.

196 However, the Court points out that all those documents are internal notes of the Commission, the nature of which was explained in the file sent to the Court. As internal notes, those documents could validly be excluded from the process of inspection implemented pursuant to the measure of organisation of procedure (Hercules Chemicals v Commission, cited above at paragraph 140, paragraphs 53 and 54, and BPB Industries and British Gypsum v Commission, cited at paragraph 144 above, paragraph 22; order of 10 December 1997 in Joined Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 NMH Stahlwerke and Others v Commission [1997] ECR II-2293, paragraph 35).

197 Several applicants allege that they were unable to gain access to the following documents for which the companies at whose premises they had been obtained had, following the measure of organisation of procedure, maintained their request for confidential treatment: documents 33.126/682 to 684 and 711 to 716 to which Lafarge, Uniland, Oficemen and Italcementi refer, documents 33.322/58 to 70 to which Lafarge refers, documents 33.126/4596 to 4620, 4634 to 4649, 4659 to 4712 and 4719 to 4795 to which Uniland, Oficemen and Italcementi refer, and documents 33.322/33 to 55 and 210 to 236 to which Lafarge, Uniland and Oficemen refer.

4659 to 4712 et 4719 to 4795 are documents which Lafarge still considers to be covered by the protection of business secrets (budget for the years 1989-1991, by Gilbert Liduena, Lafarge, 18 October 1988 (documents 33.126/4642 to 4649 and 4659 to 4712); Scénarios d'impasse — Trois scenarios possibles (deadlock scenarios — three possible scenarios) (documents 33.126/4596 to 4620); Strategy against the Greek cement industry, Lafarge, DEP, 12 April 1988 (documents 33.126/4634 to 4641); Sud-Est/Vallée de Seine study, introduction — methodology, working document, Lafarge, DEP, F. Phélip, 21 April 1989 (documents 33.126/4719 to 4724); working document of the Sud-Est/Vallée de Seine study, Direction Etudes et Plan, F. Phélip, Lafarge, 21 April 1989 (documents 33.126/4725 to 4730); Vallée de Seine, DEP Lafarge, M. Morel, 21 April 1989 (documents 33.126/4731 to 4766); Sud-Est, DEP Lafarge, M. Morel, 21 April 1989 (documents 33.126/4767 to 4795)). Documents 33.322/33 to 55 and 210 to 236 are internal studies of Cimpor which illustrate that company's business strategy and set out basic options as to the positioning of the company on the market.

202 In that same context, Italcementi refers to documents 33.126/436 to 439, 4491 to 4592, 11215 to 11218, 11224 to 11241, 11250 to 11252, 17476 to 17483, 17995 to 18006, 18102 to 18109, pages 12 to 19 of document 33.126/4982, documents 33.322/1636, 1638 to 1755, 1757, 1759, 1770 to 1789 and 1792 to 1796. After reading the lawyers' letters placed i n the

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file, it notes that the absence of some of those documents is explained by the fact that the undertakings concerned repeated the reservation of confidentiality in the context of the inspection of the file organised by the measure of 18 and 19 June 1997. It considers, however, that the lawyers' letters, which make no reference to the numbering given by the Commission to the documents in its file, do not allow it to be ascertained whether all the missing documents are confidential. It states that although the Court, in its measure of organisation of procedure, gave very specific instructions to the undertakings and associations of undertakings concerned regarding the treatment of confidential documents, some lawyers' letters not only failed to annex the non-confidential version of the documents for which they were claiming continued confidentiality, but were even so vague that they did not allow their content to be ascertained, even in summary. It refers, by way of example, to the letter of 5 August 1997 from Valenciana's lawyers to the Commission asking it not to grant third parties access to the documents of the board of directors of that company, as a result of which documents 33.322/1825 to 1880 were removed from the file, but without the inclusion in the file accessible to Italcementi of the agenda of those meetings or the subject-matter of the decisions adopted in them.

205 As regards documents 33.322/1825 to 1880 to which Lafarge and Italcementi refer, it is correct that, contrary to the instructions given by the Court in June 1997, the letter of 5 August 1997 from Valenciana's lawyers seeking continued confidential treatment of those documents was not accompanied by a non-confidential version or summary of them, nor did it indicate the agenda or subject-matter of the meetings in question. Likewise, as regards documents 33.322/911 to 9 1 8 , it was solely stated that it was a framework agreement for cooperation between Cimpor and Ciments Français. However, Lafarge and Italcementi have not explained how those documents could have been of interest for their defence during the administrative procedure. In any event, after checking the files containing the confidential documents in the investigation file, the Court finds that the content of documents 33.322/1825 to 1880 and 33.322/911 to 918 are unconnected with any objection raised against Lafarge and Italcementi in the contested decision. Those documents could not therefore have been useful for the defence of Lafarge and

II - 577

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

Italcementi during the administrative procedure. In those circumstances, Lafarge and Italcementi cannot base any argument on the improper performance of the measure of organisation of procedure in regard to those documents.

In the places in the file where documents 33.126/4491 to 4592 and pages 12 to 19 of document 33.126/4982 should be found, there is, each time, a letter of 16 September 1997 from Lafarge's lawyers which lists various documents which that company still considers to be covered by the protection of business secrets (forward planning of the Lafarge group, cement and associated activities, summary of notes made by members of the executive committee during the first quarter of 1986, Philippe Agid, 25 April 1986 (documents 33.126/4491 to 4509); scénario de déstabilisation concurrentielle en Europe — éléments clés — risque d'impasse — diagnostics (destabilisation of competition in Europe — key elements — risk of deadlock — diagnoses), Lafarge, March 1988 (documents 33.126/4510 to 4592); extract from the budget for 1989- 1991, by Gilbert Liduena, Lafarge, 18 October 1988 (documents 33.126/4982, pp. 12 to 19)) and which encloses a non-confidential summary of those documents.

In the place in the file where documents 33.126/18102 to 18109 should be there is a letter of 12 September 1997 in which CBR's lawyers state that the Commission's official to whom the letter was addressed had indicated that Obourg SA had 'requested confidentiality for the Inter-Béton management contract which it had concluded with CBR on 10 October 1967'. It seemed to them to be 'necessary for reasons of coherency and consideration for the other party to the contract, to extend confidentiality to the two supplementary agreements to the contract, namely "the first confidential supplement to the Inter-Béton management contract of 10 October 1967 (freezing of securities)" and "the second confidential supplement to the Inter-Béton manage- ment contract", those two supplementary agreements having been supplied by CBR to the Commission in Annex 5A to the reply to the request for information of 19 March 1990.' It seemed to them 'to be all the more reasonable to give those two supplementary agreements confidential treatment since they relate to issues which are wholly irrelevant to the present case'. In each place in the file where documents 33.322/1636, 1638 to 1755, 1757, 1759, 1770 to 1789 and 1792 to 1796, should be, there is a letter of 28 July 1997 from Asland's lawyers, which specifies amongst the documents in pp. 1508 to 1810 of file 33.322 those documents which Asland wishes to keep confidential because 'they relate to internal restructuring operations of the company, have no bearing on the alleged infringements, and are an integral part of the strategy and internal policy adopted by Asland during the reference period', and

208 Finally, Holderbank alleges that the Commission failed to protect business secrets when it performed the measure of 18 and 19 June 1997. It states that although it and its subsidiary O b o u r g informed the Commission that the contract to establish Inter-Béton, which was in the investigation file, should not be made available to third parties because it contained business secrets (see letters of 3 September 1997 from the applicant to the Commission and of 28 August 1997 from O b o u r g to the Commission, Annex 7 to the applicant's observations of 8 December 1997), the Commission made that document accessible to all parties. It states that, although action on its part when it inspected the file on 2 9 October 1997 made it possible to prevent other applicants from inspecting the document thereafter, its competitors and those of O b o u r g which inspected the file before 2 9 October 1997 nevertheless saw that contract, so that its subsequent removal from the file did not redress the failure to protect its business secrets. It finds that this event is all the more incomprehensible since the other documents which O b o u r g and it had classified as business secrets were withdrawn from the file by the Commission before inspection commenced.

209 Although it is regrettable that the Commission allowed that confidential document to be inspected for a time by third parties, the Court finds that Holderbank's argument has no bearing on an assessment of the merits of its action. Such conduct by the Commission does not affect the legality of the contested decision.

2.3.5. Special circumstances which impaired the effectiveness of the measures of 2 October 1996 and 18 and 19 June 1997

212 In their pleadings lodged following the measures of 2 October 1996 and 18 and 19 June 1997, some applicants have pleaded that special circumstances impaired the effectiveness of those measures.

213 First, Blue Circle complains that it was given an extremely short period of time within which to assess the documents which became available following the measure of 2 October 1996. Unicem, Titan and Blue Circle make the same criticism regarding the documents to which access was granted following the measure of 18 and 19 June 1997, stating that they did not have adequate time to coordinate their examination of all those documents with the examination of the documents to which they had previously had access. Blue Circle adds that it was unable to provide any assistance to its lawyers in the examination of the mass of

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commercial documents, for the purposes of preparing its statement following the measure of 18 and 19 June 1997, since none of its employees were available to do so during that period.

215 Having regard to the fact that Article 173 of the Treaty allows a period of two months for the bringing of an action for annulment, those applicants were therefore given a reasonable period. The Court points out that the object of those measures of organisation of procedure was limited. It was to enable the 39 applicants concerned to identify the exculpatory evidence in the documents which had been kept secret during the administrative procedure and to explain how the outcome of that procedure might have been different if they had had access to that evidence during that procedure. In order to prepare a statement following the measures it was not necessary to make a careful examination of each document made accessible. It is apparent merely from the title of numerous documents in the investigation file that they had no bearing on the objections adopted against Unicem, Titan or Blue Circle in the contested decision.

216 As to the argument that it was physically impossible for Blue Circle to assist its lawyers in the performance of the measure of 18 and 19 June 1997, the Court points out that except in the case of force majeure, which has not been proved in this case, the difficulties and uncertainties associated with a party's internal organisation cannot be pleaded by it where it has had a reasonable period within which to exercise its rights of defence. In any event, Blue Circle cannot reasonably contend in this case that during the period allowed within which to lodge observations following its lawyers' inspection of the file at the Registry of the Court none of its employees was able to devote any time whatsoever to assist them in appraising the documents which they had selected.

220 T h e Court finds that the applicants do not complain of the illegibility of the documents in file 2 7 . 9 9 7 made available following the measure of 2 October 1996. As t o the documents in files 33.126 and 33.322, the applicants had access t o the originals of those documents following the measure of 18 and 19 June 1 9 9 7 (see paragraphs 168 and 169 above). T h e observations regarding the illegibility of copies which the applicants were able t o inspect following the measure of 2 October 1996 therefore serve no further purpose. There is therefore no longer any need t o order the measure requested by Holderbank. The Commission is n o t responsible for the illegibility of original documents which it h a d during the administrative procedure and such illegibility could n o t have hindered the attainment of the objectives which the measures of 2 October 1996 and 18 and 19 June 1997 sought t o attain by granting the applicants access t o the investigation file: any such illegibility w a s the same for both the applicants and the Commission. T h e knowledge gained by the Commission from the illegible documents was n o t therefore different from that which the applicants could have gained from inspecting them.

221 T h e arguments of Dyckerhoff, B D Z , Asland, Uniland, Oficemen, Italcementi, Holderbank, H o r n o s Ibéricos and Blue Circle grounded on the illegibility of certain documents t o which they had access following the measures of 2 October 1996 and 18 and 19 June 1 9 9 7 cannot therefore be upheld.

222 Third, Unicem, Titan and Blue Circle complain that they were not provided with translations of the documents to which they obtained access following the measures of organisation of procedure, even though those documents were in many different languages. That complicated the preparation of their observations within the period allowed to them. Similarly, Valenciana complains that it was not provided with a translation of the national chapters of the SO other than the Spanish chapters, or of documents to which those chapters refer, or of other documents in the file.

226 However, that fact did not impair their rights of defence during the procedure before the Court. Following the measures of 2 October 1996 and 18 and 19 June 1997 they had access to all the documents in the investigation file, except for those containing business secrets or other confidential information and internal documents of the Commission. They also had access to non-confidential versions or summaries of documents regarded as confidential, and the Commission indicated the nature of the internal documents held in its files. The absence of a list giving the tenor of each document could not have prevented them from identifying, during the procedure before the Court, those documents in the investigation file which might have t e e n useful for their defence during the administrative procedure and, accordingly, from showing that their rights of defence were infringed during the latter procedure.

227 Consequently, the Court must reject the applicants' argument inasmuch as it criticises the lack, during the procedure before the Court, of a list giving the tenor of the documents in the investigation file. The Court will examine that argument below (see paragraphs 272 to 275) inasmuch as it criticises the lack of a detailed list during the administrative procedure.

228 Fifth, Dyckerhoff, Vicat, Ciments Français, Heidelberger, Lafarge, Aalborg, Asland, Uniland, Oficemen and Blue Circle point to several filing or classification errors which, they claim,

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

229 Italcementi makes similar observations regarding the investigation file which it was allowed to inspect following the measure of 18 and 19 June 1997. When it inspected that file it saw that it included unnumbered documents (ring binder XVIII, document 33.126/6857a contains unnumbered pages in Annex 5; in ring binder XX there are seven unnumbered pages after document 33.126/6891; in ring binder XXII there are, after document 33.126/8384a, four unnumbered pages; in ring binder XXIV, document 33.126/9416 is followed by seven unnumbered pages and document 33.126/9571 by 33 unnumbered pages; in ring binder XXVII, document 33.126/10743 is followed by 17 unnumbered pages and document 33.126/10745 by two unnumbered pages; in ring binder XXVIII there are two unnumbered pages, after document 33.126/11206; in ring binder XXX, documents 33.126/11912 and 12230 are, in each case, followed by one unnumbered page; in ring binder XXXVI, documents 33.126/14411 and 14502 are followed by one unnumbered page; in ring binder XLII, document 33.126/16934 is followed by three unnumbered pages; in ring binder XLIII, document 33.126/16971 is followed by five unnumbered pages; in ring binder XLVII, document 33.126/18099 is followed by one unnumbered page). The applicant also found that in the case of documents comprising several pages, such as brochures, balance sheets, contracts or lists of sales or prices, the Commission merely numbered the first page of the document in question or numbered it alternately or non- consecutively (for example, ring binder XXXVII, in which some documents printed on both sides of the page have, on their reverse, numbers which are several units higher than the

230 Blue Circle draws attention to the disorderly state of the file, the absence of some pages and the double numbering of some documents. Uniland and Oficemen contend that ring binder LI, relating to case 33.126 is not referred to in the List (see paragraph 5 above) of documents drawn up by the Commission. Similarly, inspection of that list would lead one to believe that in ring binder XXXVII, only documents 33.126/14740 to 14742 relate to SIPAC, whereas SIPAC is dealt with from document 33.126/14739 onwards. When they inspected the file on 17 December 1997, Uniland and Oficemen discovered documents relating to case 33.126 in the files relating to case 33.322: documents 2448 to 2477 of case 33.126, which should have appeared in ring binder VII of that case, are in ring binders I and II of case 33.322. The disorderly numbering of documents in ring binders IV and V of case 33.322 made it difficult to examine them. Uniland and Oficemen state that the file passes without transition from document 1018 to document 1039 then, further on, from document 1050 to document 1069, then, a little further again, from document 1072 to document 1012, which is immediately followed by document 1038 and decreasing numbering until document 1019, which in turn is followed by six unnumbered pages which are impossible to place in the file. Some pages of those files are, moreover, impossible to classify. Documents 33.126/11123 to 11127 which, according to the List drawn up by the Commission (see paragraph 5 above), should have been in ring binder XXVIII, are in ring binder XXVII. Ring binder XXIX of case 33.126 contains numbering errors, Nos 11694 to 11699 having been used to designate two different series of documents.

Commission's file. It is absolutely clear from examination of the Commission's original file that the documents numbered from 33.126/11694 to 11699 in that file relate solely to extracts from hand-written notes taken (in all likelihood by Cembureau) at the meeting of the Head Delegates of 30 May 1983 in Kerkyra (documents 33.126/11694 to 11696); a letter of 20 January 1984 from J. Bailly (Chairman of Cembureau) to Mr Bertran (Chairman of Asland) (document 33.126/11697); the minutes taken by 'P.D.' (probably Philippe Dutron of Cembureau) on 13 March 1984; a telephone conversation with Mr d'Agostino (Italcementi) relating to exports of cement from Italy to Switzerland (document 33.126/11698); and the list of participants in the Head Delegates meeting of 19 March 1984 in Noordwiik (document 33.126/11699). The other series of documents, which Uniland and Oficemen submit is also covered by the numbering from 33.126/11694 to 11699 and which relates to other extracts from handwritten notes taken at the meeting of the Head Delegates of 30 May 1983 in Kerkyra, is numbered 33.126/11689 to 11693. Finally, as Uniland and Oficemen point out, the List (see paragraph 5 above) does not refer to a ring binder LI. It does, however, refer to two ring binders L, so that the second ring binder L to which the List refers is in fact ring binder LI.

233 It follows from the foregoing that the whole of the arguments set out in paragraphs 228 to 2 3 0 above must be rejected.

235 The Court points out that although the Commission did not make available to Blue Circle the list which it had requested, it nevertheless informed it, by letter of 13 November 1997 (Annex 3 to the applicant's observations lodged following the measure of 18 and 19 June 1997), of the criteria enabling it to identify the documents for which confidentiality had been claimed during the administrative procedure. There would have been no point whatsoever in a more precise explanation of the documents classified as confidential during that procedure, since, by the measure of 18 and 19 June 1997, the undertakings and associations of undertakings concerned were requested to 'update' their assessment of the need to maintain the confidentiality then claimed for certain documents. A number of documents classified as confidential during the administrative procedure were thereby rendered accessible to the applicants when they inspected the investigation file at the Registry of the Court. The provision by the Commission of the list of documents classified as confidential during the administrative procedure certainly did

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not deprive Blue Circle of the possibility of relying on one or other of the documents which were on that list but for which confidentiality subsequently ceased to be claimed. Consideration of the documents annexed by the applicant to its observations shows, moreover, that — contrary to its assertions in those observations — it did not hesitate to rely on documents which had been classified as confidential during the administrative procedure but which the undertakings and/ or associations of undertakings concerned had agreed to allow to be made available to third parties in the context of the measure of 18 and 19 June 1997. The Court refers, by way of example, to documents 33.126/16936 to 16938, contained in Annex 5-10 to the applicant's observations, which are stated to be 'confidential'. Blue Circle's argument must therefore be rejected.

II - 587

JUDGMENT OF 15. 3. 2000 - J O I N E D CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/9S, T-87/95, T-88/95, T-103/95 AND T-104/95

judgments the Court annulled the contested decision after having taken the view that an infringement of the rights of the defence which occurred during the administrative procedure could not be regularised during the proceedings before the Court of First Instance.

240 The Court points out that it cannot annul the contested decision in whole or in part unless it is found that the lack of proper access to the investigation file given to the applicants during the administrative procedure prevented them from perusing documents which were likely to be of use in their defence and thus infringed their rights of defence (judgments cited in paragraph 106 above, Case T-30/91 Solvay v Commission, paragraphs 80, 8 1 , 84, 98 and 100, and Case T-36/91 ICI v Commission, paragraphs 90, 9 1 , 94, 108, 110 and 115). The large number of documents in the investigation file to which the applicants were not given access during the administrative procedure does not in itself suffice to justify such a finding.

242 In order to examine the question whether a document that was not accessible during the administrative procedure was likely to be useful in the defence of an applicant it is therefore necessary, save where the document has no objective link with an objection adopted against that applicant, to carry out a provisional examination of the evidence on which the Commission relied in support of its finding of an infringement in the contested decision.

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244 In those judgments, the Court had to examine a plea alleging that the rights of the defence had been infringed because the parties had not had access, during the administrative procedure, to the file concerning the alleged abuse of a dominant position by the other party. The applicants took the view that those files might have contained exculpatory evidence. In dealing with that line of argument the Court first of all examined the evidence on which the Commission had relied. The Commission had first found that ICI and Solvay had concluded a market sharing agreement in 1949. Although that agreement had been formally cancelled in 1972, the Commission had taken the view in the decision that there was ample evidence of collusion, from which it could be inferred that the original 1949 arrangement had continued to be implemented in the form of a concerted practice after 1972 (see Case T-30/91 Solvay v Commission, paragraph 61, and Case T-36/91 ICI v Commission, paragraph 71, cited in paragraph 106 above). Thus, in order to prove the concerted practice, the Commission relied on four elements, namely, first, the absence of any trade in soda-ash by ICI and Solvay across the English Channel during the period in question; second, the precise coincidence of that lack of competition with the terms of the agreement concluded in 1949; third, the conclusion and implementation of purchase for resale agreements whereby soda-ash was delivered by Solvay to ICI from 1983 to 1989; and, fourth, frequent contacts between Solvay and ICI designed to coordinate their strategy in the soda-ash sector (Case T-30/91 Solvay v Commission, paragraph 65, and Case T-36/91 ICI v Commission, paragraph 75).

found (Case T-30/91 Solvay v Commission, paragraph 73, and T-36/91 ICI v Commission, paragraph 83) that that agreement had been formally terminated in 1972 and that the Commission could not fail to take account of the possibility that by terminating that agreement the two undertakings wished to comply with the Treaty. In the Court's view, the 1949 agreement was therefore weak evidence on which to find that the infringement in question had been committed by ICI and Solvay from 1 January 1973. The only other evidence of the existence of a concerted practice, at least in regard to the period from 1973 to 1982, was derived from their conduct on the market, that is to say, the absence of trade in soda ash by I U and by Solvay across the English Channel. However, on account of the weakness of the documentary evidence relating, in particular, to 1973 and the years immediately following it, the Court held that the Commission should, in order to prove to the requisite legal standard the concerted practice alleged against ICI and Solvay, have been prompted to make an overall and detailed economic assessment, in the statement of objections, in particular of the relevant market and the size and conduct of the undertakings active on that market. It considered that that assessment, if it was to be complete, objective and balanced, ought at least to have taken into account, first, the strong positions held by Solvav and ICI on their respective geographical markets and, second, the loyalty arrangements with their clients, for which they had been criticised in the course of the proceedings initiated under Article 86 of the Treaty (Case T-30/91 Solvay v Commission, paragraph 76, and Case T-36/91 ICI v Commission, paragraph 86). It was in that context that the Court held that the documents concerning the infringement of Article 86 allegedly committed by ICI could have been of use in Solvay's defence in order to rebut the claim that a concerted practice existed between Solvay and ICI. Those documents might have shown that the passive conduct alleged against Solvay was based on its own independent decisions, motivated by the difficulty of penetrating a market, access to which was blocked by an undertaking in a dominant position (Case T-30/91 Solvay v Commission, paragraph 77). On the same grounds, the documents concerning the infringement of Article 86 allegedly committed by Solvay were of use in ICI's defence (Case T-36/91 ICI v Commission, paragraph 87). As there was a chance that, if ICI and Solvav had had access to the documents in question during the administrative procedure, they might have been able to influence the Commission's assessment, at least so far as concerns the conclusiveness of the alleged passive and parallel conduct in regard to the beginning and therefore the duration of the infringement, the Court found that the rights of the defence had been infringed and annulled the decision in question (Case T-30/91 Solvay v Commission, paragraphs 98 and 99, and Case T-36/91 ICI v Commission, paragraphs 108 and 109).

247 Consequently, where an applicant submits, in the context of an application for annulment, that its rights of defence have been infringed because it was not given access during the administrative procedure to a document in the investigation file which, it claims, could have been useful in its defence, the Court must require that document to be disclosed to the Court. It must then examine that document for any relationship with the objections upheld against the applicant in the contested decision. If there is no objective link between the document and the objection upheld in the contested decision, the outcome of the administrative procedure could not have been different for the applicant if it had had access to that document during that procedure. In such circumstances, the plea by that applicant must be rejected. If, on the other hand, there is an objective link between the document in question and one of the objections upheld against the applicant in the contested decision, the Court must assess whether, in the light of the evidence adduced by the Commission in support of the objections referred to in the contested decision, the document would have had any — even a small — chance of altering the outcome of the administrative procedure if the applicant had been able to rely on it during that procedure. If, in the light of the evidence as a whole, the Court considers that the document would have had such a chance of altering the outcome to the administrative procedure, it will f i n d that the r i g h t sof the defence have been infringed (see paragraphs 2 2 0 5 to 2 2 1 2 , 2 2 2 4 , 2 2 2 5 , 2 2 8 4 to 2 2 9 0 , 2 3 8 4 , 2 3 8 5 , 2 4 6 9 , 3406 to 3435 and 3996 to 4 0 0 5 below).

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JUDGMENT OF 15 3 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-48/95 T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

250 The applicants listed below have referred in their written statements to the following documents to which they had access during the administrative procedure: FIC to documents 33. 26/4858 to 4861, 4911 to 4913, 19205 and 19218; ENCI to documents 33.126/12519 12627 12642 12648 to 12654 and to document 33.126/4470, identical to document 33.126/12627, which was classified as 'A: European producers' on the List (see paragraph 5 aboye); Dyckerhoit to documents 33.126/18959, 18960, 19195 and 19196 and to documents 33 126/16509 16515 and 16516, which correspond to documents 33.126/18857, 18821 and 18822 which were classified as 'A: European producers' on the List; Heidelberger to documents 33.126/1480?, 14826, 19202, 19218, 19220 to 19233, 19250 and 19264 to 19279; Aalborg; te'documents 33 126/15134, 15135, 15170 and 15201; Buzzi to documents 33.126/4982, 14809, 14812, 14813 14815, 14817, 14820, 14822, 14824, 14898 and 15174; Valenciana to documents 33.126/4911 to 4913; Asland to documents 33.126/19202, 19205 and 19218; Heracles to documents 33.126/18755 to 18763; Uniland and Oficemen to documents 33 126/11026, 11027, 11080 to 11084, 19195, 19196, 19754, 19762, 19770, 19776, 19817 19819 19827, 20011, 20019, 20065, 20071 and 20072; Rugby and Castle to documents 33 126/14331 to 14333 Titan to documents 33.126/4858, 4859, 10982, 10985 18755 to 18763» 18771 to 18779, 18842, 18843 and 18848 and to documents 33.126/13119 and 16155 which correspond to documents 33.126/18862 and 19007 respectively, which wereclassified as A: European producers' on the List; Holderbank to documents 33.126/10959 19195 and 19196, and, lastly, Blue Circle to documents 33.126/19220 to 19347 and 19875 to 19877 and to documents 33.322/1503 to 1505 which correspond to documents 33.126/16/86 to 16/8?, which were classified as 'A: European producers' on the List.

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cannot allege in this case that its rights of defence were infringed because it did not have access to the above documents during the administrative procedure.

254 Next, several applicants rely on documents relating to an infringement referred to in the contested decision but in which, they claim, they did not participate.

255 Vicat refers to documents 33.126/2088 to 2096, 6590, 6591, 6608, 6690, 6691, 7640 10811 to 10813, 10827, 10828, 11052, 11053, 11066, 11073 to 11075, 11077, 11078, 13111 15342 to 15347, 15386, 15387, 16445, 16446 to 16449, 16460 and 16461 as proof that it did not participate directly or indirectly in the ETE However, as the Commission's decision did not allege that it participated in the ETF's activities, the documents in question are not relevant to its defence.

256 Hornos Ibéricos and Blue Circle refer to several documents directly relating to the Spanish- Portuguese agreement referred to in Article 3(2) of the contested decision. Hornos Ibéricos refers to documents 33.322/124 to 133, 170, 905, 966 to 973, 1019, 1020, 1027, 1080 to 1089 1319 to 1322, 1395, 1396 et 1409, and Chapter 9 'Portugal' of the SO. Blue Circle refers to documents 33.322/2898 to 2903. However, Hornos Ibéricos and Blue Circle are not referred to in Article 3(2) of the decision. Consequently, even if the documents to which they refer would have enabled them to show, during the administrative procedure, that the Spanish-Portuguese agreement did not exist, that could not have altered the outcome of that procedure for them.

260 Third, as regards documents relating t o infringements alleged against an applicant w h o relies on those documents, the Court finds that, unlike in the cases which gave rise to the judgments in T-30/91 Solvay v Commission and T-36/91 ICI v Commission, cited m paragraph 106 above, in the present case the Commission relied, both in the SO and in the contested decision, solely on specific documentary evidence to show the various infringements and the participation of the various addressees of the contested decision in one or more of those infringements In order to assess the plea that the rights of defence were infringed because the applicants did n o t have adequate access t o the SO and t o the investigation file during the administrative procedure, it will be necessary first t o assess the conclusiveness of that evidence and then t o examine whether the information t o which they h a d no access could have led t o a different decision if the applicants had been able t o rely on those documents during the administrative procedure (see paragraphs 2 4 1 and 2 4 7 above and paragraph 2 6 3 below).

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CIMENTERIES CBR AND OTHERS V COMMISSION

evidence or at least sheds a different light on it (see, to that effect, Case T-37/91 ICI v Commission, cited in paragraph 142 above, paragraph 63). Only in such circumstances might documents that were inaccessible during the administrative procedure have influenced the Commission's assessment of the documentary evidence relied on in the contested decision.

264 It already follows that since the infringements were proved in the SO and in the contested decision on the basis of documentary evidence, not on the basis of parallel conduct on the market, the Court cannot uphold the argument adduced by some applicants (CBR, Cembureau, FIC, Dyckerhoff, SFIC, Vicat, Aalborg, Unicem, Castle, Heracles, Oficemen, Irish Cement, Titan, Italcementi, Holderbank, Hornos Ibéricos, Aker, E U R O C , Cementir, and Blue Circle) to the effect that an alternative economic explanation of the cement producers' conduct on the market could have been given by them, based on the documents which remained inaccessible to them. In the light of the way in which matters were proved in the SO and the contested decision, such an argument could not have altered the outcome of the administrative procedure.

265 Fourth, several applicants refer to documents emanating from themselves or of which they were manifestly aware during the administrative procedure. For the reasons set out in paragraph 248 above, any argument submitted by the applicants on the basis of such documents must be rejected.

II - 5 9 5

JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/98, T-103/95 AND T-104/95

to which SECIL refers, the Court points out that SECIL, too, which already had those documents during the administrative procedure, cannot use them to support a plea of infringement of its rights of defence.

5. General arguments relating to infringement of the rights of defence during the administrative procedure

267 Since the Court has reserved examination of arguments relating t o documents directly concerning the infringements found, it is necessary t o examine other arguments, of a general nature, in the statements lodged.

270 Nor can it be claimed that the burden of proof was reversed. In conformity with the principles laid down in the case-law (Case T-43/92 Dunlop Slazenger v Commission [1994] ECR II-441, paragraph 79; Case T-337/94 Enso-Gutzeit Oy v Commission [1998] ECR II-1571, paragraphs 87 and 151 to 153; Case C-49/92 P Commission v Anic [1999] ECR I-4125, paragraph 86; Hüls v Commission, cited above at paragraph 155, paragraph 154; and Case C-235/92 P Montecatini v Commission [1999] ECR I-4539, paragraph 179), the various infringements referred to in the contested decision and the applicants' participation in one or more of those infringements were established by the Commission in the SO and in the contested decision on the basis of specific

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documentary evidence, the conclusiveness of which will be assessed below. Far from reversing the burden of proof, the measures of organisation of procedure enabled the applicants concerned to refer to passages in the SO and documents in the investigation file to which they had not had access during the administrative procedure and which were of such a nature as to contradict or shed a different light (see paragraph 263 above) on the specific documentary evidence on which the Commission relied in finding the abovementioned infringements and/or in order to prove the participation of the applicants in one or more of those infringements, so that they might show that the administrative procedure had an — even small — chance of reaching a different outcome if they had had access to those items during the administrative procedure.

274 It follows that the fact that the Commission did not prepare a list which described each document in the file cannot as such infringe the rights of the defence. Only the documents to which the list (see paragraph 5 above) refers, not the list itself, can contain information useful to the defence of an undertaking or an association of undertakings.

II - 597

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/9J TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/9S

275 The applicants' argument must therefore be rejected inasmuch as it relates to the administrative procedure. T h a t argument has already been examined in paragraphs 2 2 5 to 2 2 7 above, to the extent that complaint is made of the lack of a list during the procedure before the Court.

276 Third, Rugby, Castle, Aker and E U R O C state that a number of documents which were classified on the List (see paragraph 5 above) as available were not in the Box (see paragraph 95 above).

277 However, they were able, by comparing the numbers of documents in the Box with the numbers of documents classified as accessible on the List, to establish that a number of accessible documents were not in the Box. T h a t could also have been established by comparing the volume of documents classified as accessible on the List with that of the documents in the Box. Nothing prevented the applicants at that juncture from requesting access to accessible documents that were not in the Box. The fact that certain documents classified as accessible on the List were not in the Box could not therefore impair their defence.

279 The Court points out that those criticisms are relevant only to the extent that they could show that the rights of the defence were infringed. The argument of Ciments Français that the Commission misused the plea of confidentiality so as to refuse to grant it access to various documents only goes to show that proper access was not given to the investigation file, a finding already made by the Court (see paragraph 152 above). Ciments Français does not, however, explain in w h a t respect that fact affected its right of defence during the administrative procedure. Furthermore, even though, following the measures of 2 October 1996 and 18 and 19 June 1997, the Court placed the applicants concerned in a position to inspect all the documents of the investigation file, they have not explained how the dual classification of the documents referred to in the preceding paragraph impaired their rights of defence in the present

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case. Consequently, the criticisms as to the alleged misuse of the plea of confidentiality during the administrative procedure are irrelevant.

6. Conclusions

280 The Court has reserved examination of the arguments relied upon by the 39 applicants referred to in paragraph 124 above that are based on documents relating directly to the infringements which the contested decision finds they committed. The Court must reject the other arguments upon which they rely in support of their plea that their rights of defence were infringed because the Commission refused to grant them access to documents in the investigation file and to parts of the SO allegedly containing exculpatory evidence.

282 T h a t argument must be rejected. In the parts of the SO relating t o the Cembureau agreement and to the EPC (Chapters 1, 2, 10 and 12), which are the only parts of the SO relating to the objections raised against Hornos Ibéricos in the contested decision (Articles 1 and 6), the various items of evidence were identified by reference to the nature of the documents (minutes of a meeting, internal note, letter, telex, etc.), their date and/or origin. In the contested decision, the documents on which the Commission relied in order to establish the various infringements were identified in the same way. T h e only change in relation to the SO is that the contested decision also mentions, for each document, a number relating t o the pagination of that document in files 33.126 or 33.322. However, the mere addition of a number to each document referred to in the contested decision cannot have prevented Hornos Ibéricos from identifying any new evidence on which it had not had an opportunity to express a view during the administrative procedure. On the contrary, as all the documents in the Box (see paragraph 95 above), which followed the order of the SO, and any other document accessible to the applicant

II - 599

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-46/95, T-48/95, T-5O/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

during the administrative procedure bore a number relating to their pagination in files 33.126 or 33.322, the addition of that numbering for each document used in the contested decision must have facilitated the applicant's task when it drew up its application and needed to identify any new evidence.

2. Documents neither cited n o r mentioned in the contested decision

286 Oficemen complains of the use by the Commission of documents 33.322/1582 to 1588 as new items of evidence. However, the C o u r t finds that those documents were neither cited nor mentioned in the contested decision. The same holds for documents 33.322/59, 7 1 t o 7 8 , 80 t o 8 3 , 86, 87, 9 1 , 9 4 , 1 6 9 , 1 7 1 , 1 7 8 to 1 8 0 , 1 2 2 6 t o 1 2 3 4 , 1 3 1 2 , 1 3 1 3 , 1 3 1 5 , 1 5 2 3 to 1 5 2 7 1 5 3 1 , 1636 t o 1796, 1819 and 2 9 5 2 t o 2 9 5 6 and documents 33.126/11507 to 11516, 11494 t o 11504, 13077 t o 13129, 13132 t o 13177, 19393 t o 19401 and 19878 t o 1 9 9 0 1 , t o which Cimpor and SECIL refer, and for document 33.126/18951, t o which Italcementi refers. N o r did the contested decision mention the organisation chart of Cembureau which, according t o Unicem, is mentioned in recital 15, p a r a g r a p h 4, of that decision.

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287 T h e Court finds that none of the above documents were used as incriminating evidence in the contested decision. The applicants' argument must therefore be rejected.

3. Documents mentioned in the contested decision to describe a fact or conduct, but not used to make a finding of an infringement

291 Aalborg and Blue Circle refer to documents 33.126/296 to 298, 2388 to 2405, 9434 to 9450 and 11725 (contested decision, recital 23, paragraphs 3 and 5), which concern the agreements and concerted practices relating to the Belgian, Netherlands and German markets. Never- theless, those agreements and concerted practices were not ultimately the subject of a finding of infringement in the contested decision. Nor is the intergovernmental agreement between Greece and the United Kingdom, to which document 33.126/2907 refers (contested decision, recital 28, paragraph 13), which Aalborg and Blue Circle also cite, an objection that was the subject of a finding of infringement in the contested decision.

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JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

292 Blue Circle also complains that the Commission did not mention in the SO documents 33.126/11617 to 11633 (contested decision, recital 17, paragraph 3), on which it nevertheless relied in recital 17 of the contested decision, headed 'The discussions on "fair or healthy or correct" competition'. However, as the discussions on 'fair or healthy or correct' competition were not the subject-matter of any specific objection in the operative part of the contested decision, the documents relied on cannot be regarded as incriminating evidence on which the applicants should have had an opportunity to express their views during the administrative procedure.

296 Lafarge objects to the use, in support of the finding of an 'infringement', of documents from the file of the German Bundeskartellamt relating to a decision by that body dated 12 September 1988. It refers in that regard to documents 33.126/20384 to 20394, 20416, 20417, 20418 to 20443,20481,20492 to 20495 and 20497 to 20499. At the hearing, in reply to a question from the Court, Lafarge explained that the infringement in question was the cartel on the cement market in south-west Germany which, it claims, was the subject of the chapters in the SO dealing with the German market (chapters 6 and 16). Lafarge's argument must be rejected: the cartel on the cement market in south-west Germany is not the subject of the contested decision and the Commission never alleged that Lafarge took part in it. Even if Lafarge's complaint were that the Commission used documents from the German Bundeskartellamt'sfile relating to its decision of 12 September 1988 to support the finding of the infringement referred to in Article 3(3)(a) of the contested decision, namely the Franco-German Agreement, the Court finds that the Bundeskartellamt'sdecision of 12 September 1988 and the documents relating to that decision were not used in the SO and in the contested decision in order to prove the existence of the Franco-German Agreement and/or Lafarge's participation in it. They were cited by the Commission solely in order to show that Lafarge was interested by the south-west German cement market because of the special situation of its subsidiary Wössingen on that market (SO, chapter 2, point 12; contested decision, recital 22, paragraph 11; see paragraph

298 Aalborg, Uniland, Oficemen, Italcementi, Holderbank and Blue Circle refer to documents 33.126/19009 and 19010 (contested decision, recital 25, paragraph 43), which are the minutes of a meeting of 6 November 1986 between representatives of the European cement industry and Mr Sutherland, Member of the Commission responsible for competition policy, regarding the 'Greek problem'. The Court finds, however, that this document relates to the lobbying activities which were conducted at that time in regard to that issue but to which the Commission did not object in the contested decision (see footnote 115 in the contested decision). That document was not therefore incriminating evidence. Similarly, documents 33.126/18844 and 18845 (contested decision, recital 25, paragraph 19), to which Blue Circle also refers, were not incriminating evidence, as they also concern the lobbying activities relating to the 'Greek problem'.

299 Aalborg and Blue Circle refer also to document 33.126/22289a, cited in recital 30, paragraph 6 of the contested decision. It is a letter of 31 December 1992 in which M r Gac informed the" Commission that the European Cement Manufacturers Export Committee ('ECMEC') was being dissolved as from 1 January 1993. However, the Commission did not rely on that document to substantiate any of the infringements found in the contested decision.

300 Both those applicants also refer to the telex from Holderbank of 13 August 1986 mentioned in recital 2 5 , paragraph 20, of the contested decision. It refers to the Blue Circle study on the possibility of investing in Halkis (document 33.126/18846). However, that document was not used by the Commission to substantiate any of the infringements found in the contested decision. It was not therefore incriminating evidence.

302 Blue Circle refers, lastly, to documents relating to the activities of the EPC which are mentioned in footnotes 183 and 184 in the contested decision but on which the Commission did not rely either to find the infringement referred to in Article 6 or to find that Blue Circle, or any other applicant, had participated in that infringement. Those documents are documents 33.126/11421 to 11430, 12762 to 12770, 12788 to 12799, 12805 to 12807, 12815, 12817 to 12832, 12967 to 13050, 14062 to 14085, 14094 to 14097, 14148 to 14154, 18169 to 18172, 18179, 18180 and 18188 to 18191, mentioned in footnote 183 (contested decision, recital 37, paragraph 5) and documents 33.126/12732 to 12734, 12761, 12808 to 12814, 12864 to 12874,12876 to 12904,12915 to 12966,13854 to 14021,14027 to 14029,14043 to 14061, 14086 to 14092, 14098 to 14147, 14155 to 14169, 14175 to 14180, 14186 to 14229, 14237 to 14243 and 14270 to 14284, mentioned in footnote 184 (contested decision, recital 37, paragraph 6). Those documents are not therefore incriminating documents used by the Commission in the contested decision.

303 It follows from the whole of the foregoing that none of the documents referred to under this heading can be regarded as an incriminating document used by the Commission in the contested decision. SFIC, Lafarge, Aalborg, Uniland, Oficemen, Italcementi, Holderbank and Blue Circle cannot therefore refer to any of those documents in order to show that the Commission did not grant them an opportunity during the administrative procedure to express their views on incriminating documents relied upon in the contested decision.

305 Thus, Aker and EUROC assert that they were not given access to a series of documents relating to the information exchanges on prices, in particular to documents 33.126/15065 to 15305 (contested decision, recital 16, paragraphs 8 to 22). Blue Circle complains that the Commission made no mention in the SO of document 33.126/11592 (contested decision, recital 16, paragraph 3) relating to the exchange of specific information, and documents 33.126/15066, 15099 to 15102, 15104 to 15107, 15109, 15111, 15112, 15115 to 15122, 15126, 15127, 15129 to 15167 and 15170 to 15305 (contested decision, recital 16, paragraphs 8 to 21) relating to the periodic exchanges of information. In that regard it suffices to point out that those applicants were not found to have committed infringements in the form of the exchanges of price information (contested decision, Article 2(1) and (2)). Accordingly, the documents relating to those objections cannot be characterised as evidence incriminating them.

308 Ciments Français refers to the statistics of BDZ referred to in recital 22, paragraph 18, of the contested decision. Those statistics were not, however, used as incriminating evidence against it. They relate to the infringement referred to in Article 3(3)(b) of the contested decision, in which, according to that provision, only SFIC and BDZ participated.

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JUDGMENT OF 15. 3. 2000 - J O I N E D CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95,T-42/95TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

309 Aalborg refers also to Holderbank's reply to the Commission's question 7e relating to Holderbank's letters of 2 2 September 1986 regarding the payment of share quotas in Interciment (contested decision, recital 26, paragraph 9) and to the letter of 3 M a y 1993 from Holderbank's lawyer relating to the dissolution of Interciment (contested decision, recital 26, paragraph 16). Those documents concern the infringement relating to the agreement on the setting-up of Interciment referred to in Article 4(2) of the contested decision, an infringement which Aalborg was not alleged to have committed.

310 Aalborg submits, however, that the Commission relied on the letter of 3 M a y 1993 from Holderbank's lawyer in order to establish the date on which the alleged infringements ceased (contested decision, recital 6 5 , paragraph 4) and that it is therefore evidence used against it in the contested decision. SFIC, which is referred to in Article 4(2) of the contested decision, also considers that the letter is a new item of incriminating evidence, to which it should have had access during the administrative procedure and which should have been mentioned in the SO.

312 Ciments Français, Aalborg, Uniland and Oficemen refer to documents 33.126/12145 to 12159 and 12161 to 12342 (contested decision, recital 27, paragraph 6). Those documents concern agreements concluded between Calcestruzzi and the three Italian cement producers, Italce- menti, Unicem and Cementir. It is clear from recital 55, paragraph 2, of the contested decision that the Commission relied on those documents as proof of the infringement complained of in Article 4(3)(b) of the contested decision, namely the agreement between the Italian cement producers that aimed to prevent imports of Greek cement by Calcestruzzi. Since that infringement was not alleged to have been committed by Ciments Français, Aalborg, Uniland and Oficemen, they cannot claim that their rights of defence were infringed by the fact that they were not able to express their views on those documents.

313 Uniland, Oficemen and Blue Circle refer to document 33.126/19208 (contested decision, recital 2 7 , paragraph 10) and Blue Circle to documents 33.126/19203 and 19204 (contested decision, recital 2 7 , paragraphs 8 and 9). Contrary to the indication in the contested decision, document 33.126/19208 does not in fact correspond to the telex of 2 June 1987 in which Calcestruzzi repeated to Titan its request for a meeting with the Italian cement producers in order to resolve

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314 Aalborg also refers to documents 33.126/10926 to 10941, 14446 to 14453 and 20057 to 20064 (contested decision, recital 28, paragraphs 15, 17 and 19), which relate to the infringements referred to in Article 4(4)(b), (d) and (f) respectively of the contested decision; those infringements are not alleged to have been committed by the applicant. Uniland refers to documents 33.126/10908 to 10913, 10927 to 10935, 10937 to 10940, 10897 to 10901, 10903 to 10905, 19562 to 19574 and 19576 to 19579 (contested decision, recital 28, paragraph 15), 19501, 19502, 19504 to 19510, 19482, 19483, 19485 to 19487, 19489, 19814 to 19816, 19818, 19820 to 19826 and 19828 to 19843 (contested decision, recital 28, paragraph 16), 20058, 20060, 20061, 20064 and 20066 to 20070 (contested decision, recital 28, paragraph 17), 19708, 19711 to 19716, 19718 to 19721 and 14407 (contested decision, recital 28, paragraph 18), 14455 to 14465, 14467 to 14469 and 14446 to 14453 (contested decision, recital 28, paragraph 19), 18118 to 18121 and 18125 to 18127 (contested decision, recital 28, paragraph 20), 7631 (contested decision, recital 28, paragraph 21), 19622 to 19627, 19629, 19586, 19588 to 19590, 19592 to 19595, 19598 to 19600, 19602, 19604, 19606, 19608, 19618 to 19620, 19631, 19633, 19634, 19636 to 19644, 19646 to 19650, 19652 and 19654 (contested decision, recital 28, paragraph 22), all of which relate to the contracts or transactions for the purchase of Greek cement to which the Commission objected in Article 4(4)(b) to (h) of the contested decision on the ground that they were carrot actions. None of those infringements was, however, alleged against Uniland. Aalborg and Uniland cannot therefore allege that their rights of defence were infringed by the fact that they were not able to express their views on the abovementioned documents.

316 Lastly, Blue Circle complains t h a t the Commission did not mention in the SO various documents concerning the ECEC: documents 33.126/12524 t o 12534, 18201 to 18204 (contested decision, recital 3 1 , p a r a g r a p h 3) and documents 33.126/3410 t o 3412, 3 4 2 2 t o 3433, 6139 to 6142, 12544 to 12674, 12706 to 12709, 12721 to 12728, 14027 to 14029, 14245 to 14249, 14257 to 14262, 14289 to 14298, 14300, 14301, 14303 to 14309, 14311 to 14316,16766 and 16790 to 16824 (contested decision, recital 33, paragraphs 1 to 5). However, as Blue Circle was not alleged to have participated in the concerted practices in the framework of the ECEC, the subject-matter of Article 5 of the contested decision, those documents cannot be regarded as evidence which was used against it. The same holds for other documents to which Blue Circle refers (documents 33.126/3418 to 3421, 12607 to 12610, 12614 to 12616, 12627 to 12634, 12667 to 12674, 14184, 14257 to 14262, 14266, 14267, 14303 to 14315, 18218 and 18219; contested decision, recital 32, paragraphs 1 to 3), which concern the link between the EPC, in which Blue Circle participated, and the ECEC, since that link between the two export committees was used solely in order to characterise the ECEC's activities as infringements (contested decision, recital 58, paragraph 3(b)).

317 It follows that none of the abovementioned documents identified by SFIC, Ciments Français, Aalborg, Uniland, Oficemen, H o l d e r b a n k , Aker, E U R O C and Blue Circle were used against them as incriminating documents. Those applicants cannot therefore refer t o one or other of those documents in order t o show that the Commission did not give t h e m an opportunity during the administrative procedure t o express their views on incriminating documents used in the contested decision.

319 Thus, document 33.126/15983 (contested decision, recital 2 5 , paragraph 9), on which Uniland, Holderbank and Blue Circle rely, w a s used only t o prove that Italcementi participated in the meeting in Stockholm on 9 June 1986. It is a letter from Italcementi of 21 March 1990 in reply to the Commission's request for information, in which Italcementi states: 'As regards the Stockholm meeting, M r Pesenti [of Italcementi] remembers having participated, on the margins of a Cembureau meeting, with representatives of other European producers.' That document does not contain any evidence of such a nature as to incriminate Uniland, Holderbank or Blue Circle. It is not therefore used as incriminating evidence against them. N o r do documents 33.126/18771 and 18755 (contested decision, recital 2 5 , paragraph 9), to which Blue Circle also refers, constitute incriminating evidence used against Blue Circle inasmuch as they confirm the presence of the Spanish and Swiss Head Delegates at the meeting in Stockholm on 9 June 1986.

320 Uniland and Blue Circle also refer to documents 33.126/14828 t o 14860 mentioned in recital 2 9 , paragraph 4, of the contested decision; they are documents of the SFIC on which the Commission relies at that point of the contested decision to refute the SFIC's assertions that it did not take part in any meeting of the ETF and knew nothing of its activities. It is not therefore incriminating evidence used against Uniland and Blue Circle in the contested decision.

321 In that same context, Blue Circle complains that the Commission did not refer in the SO to documents 33.126/12808 to 12814, 12915 to 12966, 12967 to 12970, 12987 to 12998 and 13004 to 13011, mentioned in recital 35, paragraph 3, of the contested decision, to substantiate its argument that Valenciana took part in the meetings of the EPC after 1 January 1986. It is, however, clear that the documents in question were not used as incriminating evidence against Blue Circle in the contested decision. The same is true of documents 33.126/2035 to 2043, 2063 to 2069 and 2436 to 2447, to which Blue Circle also refers, which were mentioned (contested decision, recital 44, paragraph 3) in order to refute a specific argument which the FIC had raised at the hearing.

325 SFIC contends, first of all, that although the SO is based on various documents identified in it the Commission should have made clear which documents were being relied upon as against which addressee. T h a t argument must be rejected: where an addressee of the SO w a s specifically the subject-matter of an objection set out in that SO it should have realised that the documents cited in support of that objection concerned it.

326 As regards the evidence used t o support the finding of the infringement referred t o in Article 1 of the contested decision, Blue Circle complains that the Commission did n o t mention in the SO the statement by M r Kalogeropoulos at the Heracles board meeting of 2 5 June 1986 (contested decision, recital 18, paragraph 5; documents 33.126/19875 t o 19877; see paragraph 816 below). However, the Court points out that the passage from that statement, set out in recital 18, paragraph 5, of the contested decision, was cited word for word in point 9 of the S O . Furthermore, the documents in question were in the Box (see paragraph 95 above). In those circumstances, they must be considered t o be admissible evidence against Blue Circle and the other addressees of the contested decision.

327 Lafarge, Unicem, Cimpor and Italcementi refer to documents 33.126/11332 to 11337, two internal notes of Blue Circle, the content of which is set out in recital 18, paragraphs 2 and 3, of the contested decision in the part of 'The Facts' relating to the existence of the Cembureau agreement. Those notes were in the Box (see paragraph 95 above). Moreover, the notes which refer to a Cembureau principle of non-transhipment to home markets (documents 33.126/11332 to 11334 and 11335 to 11337) were cited in recital 9 of the SO entitled 'The Cembureau agreement or Cembureau principle of not transhipping to internal European markets'. In those circumstances, the abovementioned notes of Blue Circle are evidence which may be relied upon as against all the addressees of the contested decision.

329 Italcementi and Blue Circle also complain that the Commission did not rely, in the SO, on a number of documents relating to meetings of the Head Delegates. As regards the meeting of the Head Delegates on 14 January 1983, they refer to document 33.126/11581 (list of participants in the meeting of 14 January 1983; contested decision, recital 19, paragraph 4), and to documents 33.126/11578 and 11579 (memorandum on the structure of the meeting; contested decision, recital 19, paragraph 6). Blue Circle also refers to various documents concerning the amendment to the initial agenda for the meeting on 14 January 1983: documents 33.126/11580 (draft agenda of that meeting; contested decision, recital 19, paragraph 3), 33.126/11559 (telex from Cembureau to Mr Van Hove of 17 November 1982; contested decision, recital 19, paragraph 3), 33.126/11558 (telex from Mr Van Hove to Cembureau of 17 November 1982; contested decision, recital 19, paragraph 3) and No 33.126/11565 (minutes of the Executive Committee meeting on 22 December 1982; contested decision, recital 19, paragraph 3). As regards the meeting of the Head Delegates on 19 March 1984, Italcementi and Blue Circle refer to the following documents: document 33.126/11715 (table attached to the letter calling the meeting; contested decision, recital 19, paragraph 7) and documents 33.126/11699 to 11700 (list of participants in the meeting in question; contested decision, recital 19, paragraph 8). Blue Circle also refers to documents Nos 33.126/11714 and 11730 (letter calling the meeting of the Head Delegates on 19 March 1984; contested decision, recital 19, paragraph 7) and Italcementi to documents 33.126/11717 to 11727 (documents attached to the letter calling the meeting of 19 March 1984; contested decision, recital 19, paragraph 7). As regards the meeting of 7 November 1984, Italcementi and Blue Circle refer to documents 33.126/11748 (letter calling the meeting; contested decision, recital 19, paragraph 12) and 33.126/11751 (draft introductory statement for the meeting, contested decision, recital 19, paragraph 12). Italcementi refers also to document 33.126/11749 (agenda of the meeting on 7 November 1984; contested decision, recital 19, paragraph 12) and Blue Circle to document 33.126/11752 (list of participants in the meeting on 7 November 1984; contested decision, recital 19, paragraph 13).

332 Of icemen, Cimpor and SECIL object t o the use of the Hispacement document (documents 33.322/2898 to 2903) in recital 2 1 , paragraphs 2 and 1 1 , of the contested decision. They state that although that document w a s reproduced in part in the chapter of the SO relating t o Spain (Chapter 8, point 55(c)), t o which Oficemen had access during the administrative procedure, and in the chapter of the SO relating t o Portugal (Chapter 9, point 56(b)) t o which Cimpor and SECIL h a d access during the same procedure, it was, on the other hand, n o t mentioned at all in the international part of the S O . It is n o t therefore admissible evidence.

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Oficemen, Cimpor and SECIL during the administrative procedure (see paragraphs 369 to 372 below).

334 Cimpor and SECIL also object to the use of documents 33.322/1311 and 1314 as incriminating evidence in the contested decision. These documents are the minutes of the Oficemen board meeting referred to in recital 2 1 , paragraph 3, of the contested decision to support the finding that a meeting had been held between Oficemen, Cimpor and SECIL on 20 January 1986, the object of which was a mutual exchange of information as to changes in exports between Spain and Portugal. However, in point 11 of the SO (Chapter 2) the Commission had already observed: 'so as to overcome any problems posed by exports, meetings between Portuguese and Spanish producers were held [inter alia on] 20 January 1986.' In those circumstances, Cimpor and SECIL could reasonably have foreseen the conclusions which the Commission was going to draw from documents 33.322/1311 and 1314, both of which were in the Box (see paragraph 95 above).

335 Cimpor and SECIL also submit that in the international part of the SO there was no reference to other evidence adduced by the Commission in recital 2 1 , paragraphs 4 and 5, of the contested decision (documents 33.322/162, 163 to 166, 170, 172, 1406 to 1408 and 1410 to 1412). Cimpor also criticises the use of documents 33.322/181 and 252 in recital 2 1 , paragraph 7, of that decision.

I I - 613

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

337 Documents 33.322/162, 181 and 252 and documents 33.322/170 and 172 were used by the Commission to support its contention that the state of cement exports from Portugal to Spain was examined in the meetings between representatives of the Portuguese and Spanisn producers held between 6 March 1987 and 24 April 1989. As those meetings were expressly referred to in point 11 of the SO as amongst the Spanish-Portuguese meetings which aimed to Overcome any problems posed by [Portuguese] exports' (SO, point 11) and as the SO stated in the same point that at 'each meeting, an analysis of monthly exports of Portuguese cement to Spain [had Deen] carried out for each entry point', Cimpor and SECIL could reasonably have foreseen the conclusions which the Commission was going to draw from those documents (all of which were in the Box (see paragraph 95 above)) in recital 21, paragraphs 5 and 7, of the contested decision.

338 Cimpor also submits that in the international part of the SO there w a s n o reference t o documents 33.322/512, 5 1 3 , 5 4 9 , 550, 566, 567, 1 3 9 7 and 1398, which were used in recital 2 1 , paragraphs 6 and 8, of the contested decision.

340 Documents 33.322/1397 and 1398 are telexes indicating the names of the persons w h o were t o attend the Spanish-Portuguese meeting of 2 7 July 1988. T h a t meeting w a s clearly mentioned in point 11 of the international part of the SO (Chapter 2) as one of the Spanish-Portuguese meetings which aimed t o 'overcome any problems posed by [Portuguese] exports'. T h e meeting in question w a s also referred to in point 56(b) of Chapter 9 of the SO relating t o Portugal in the context of the problems associated with movements of cement between Portugal and Spain. Moreover, the t w o documents in question were part of the national file to which Cimpor was given access during the administrative procedure. In those circumstances Cimpor could have foreseen that the Commission w a s going t o rely on them in order t o find in the contested decision (recital 2 1 , paragraph 6) that a meeting had taken place on 2 7 July 1988 between

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representatives of the Spanish and Portuguese producers. The two documents are therefore also admissible against Cimpor.

341 Oficemen refers to documents 33.322/92, 93, 95, 96, 177, 270 to 276, 492, 493 to 495, 527 to 529, 530 to 532, 537, 538 and 575. Cimpor and SECIL object to the use of documents 33.322/79, 84, 85, 88 to 90, 92, 93, 95, 177 and 270 to 276 as evidence in the contested decision. Cimpor also objects to the use of documents 33.322/158, 159, 160, 161, 485, 486, 490 to 492,493 to 495, 496 to 511, 514, 515, 516, 517, 523, 524, 525, 526, 527 to 529, 530 to 532, 533 to 536, 537, 538, 539 to 541, 543 to 545, 546 to 548, 551 to 553, 554 to 556, 571 to 574 and 575 in the contested decision.

343 Documents 33.322/485,486, 493 to 495, 527 to 529, 530 to 532, 537 and 538 are telexes from 1988 and 1989 sent by or to Cimpor. They are referred to in recital 21, paragraph 8, of the contested decision in order to show that Cimpor refused any request for Spanish cement in 1988 and 1989. Those documents were also in the Box (see paragraph 95 above). Since the Commission stated in point 11 of the SO (Chapter 2) that 'a whole series of telexes sent in 1988 and 1989 [showed] that Cimpor, the producer having the most direct interest in exports, [had] refused all Spanish requests for cement with the standard response "we have no availabilities for export"', Oficemen and Cimpor could reasonably have linked those documents to the relevant passages of the SO and have foreseen the conclusions which the Commission intended to draw from them. Documents 33.322/92, 93, 95 and 96 and documents 33.322/158 and 159, 160, 161 and 270 to 276, referred to in recital 21, paragraph 6, of the contested decision, confirm that meetings were held between the Portuguese cement producers and representatives of the Spanish producers on 28 October 1988, 12 January, 23 February and 24 April 1989 and on 10 November 1987, 5 February, 21 April, 10 May and 27 July 1988. Point 11 of the SO (Chapter 2) mentioned that on those dates meetings had taken place between Spanish and Portuguese producers 'so as to overcome any problems posed by exports' of cement from Portugal to Spain. Documents 33.322/92, 93, 95, 96, 158, 159, 160, 161 and 270 to 276 were all in the Box. Oficemen, Cimpor and SECIL could reasonably have foreseen from point 11 of the international part of the SO which conclusions the Commission would draw in the

344 As regards documents 33.322/79, 84, 85 and 88 to 90, referred to in recital 2 1 , paragraph 6, of the contested decision, they confirm that meetings were held between the Portuguese cement producers and representatives of the Spanish producers on 2 5 June 1 9 8 7 (document 3 3 . 3 2 2 / 7 9 ) , 10 N o v e m b e r 1 9 8 7 ( d o c u m e n t 3 3 . 3 2 2 / 8 4 ) , 5 February 1988 ( d o c u m e n t 33.322/85), 21 April 1988 (document 33.322/88), 10 M a y 1988 (document 33.322/89) and 2 7 July 1988 (document 33.322/90). Point 11 (Chapter 2) of the SO stated that on those dates meetings between Spanish and Portuguese producers had been held 'so as to overcome any problems posed by exports' of Portuguese cement to Spain. In those circumstances, Cimpor and SECIL could reasonably have foreseen the conclusions which the Commission was going to d r a w from those documents in the contested decision, all of those documents being in the Box (see paragraph 95 above). Finally, point 11 (Chapter 2) of the SO stated that 'at each meeting, an analysis of monthly exports of Portuguese cement to Spain [had been] carried out for each entry point'. As document 33.322/177, also contained in the Box, confirmed that fact, Oficemen, Cimpor and SECIL should also have foreseen the conclusions which the Commission was going to d r a w from it in recital 2 1 , paragraph 7, of the contested decision, which paraphrases the abovementioned extract from the SO.

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Facts' in the SO dealing with the ETF (Chapter 2, Section 2), and the documents in question were in the Box (see paragraph 95 above). Holderbank and Blue Circle could therefore reasonably have linked those documents to the relevant passages in the SO and have deduced from them the conclusions that the Commission was going to draw as regards the various infringements referred to in Article 4 of the contested decision.

348 Blue Circle also complains that in the contested decision the Commission relied on documents 33.126/18821 and 18822 (contested decision, recital 2 5 , paragraphs 9 and 10, and recital 26, paragraph 2), 33.126/18857 to 18861 (contested decision, recital 26, paragraph 2) and 33.126/18755 (contested decision, recital 2 5 , paragraphs 9 and 10) in order to prove that Blue Circle participated in the Stockholm meeting on 9 June 1986 and to prove the subject-matter of that meeting. It also complains of the use in the contested decision of the record of the Head Delegates meeting in Baden-Baden on 9 September 1986. It refers in particular to document 3 3 . 1 2 6 / 1 8 8 6 1 , from which it may be inferred that it was present at the Stockholm meeting (contested decision, recital 2 5 , paragraph 9). The meetings at Stockholm and Baden-Baden and the subject-matter of those meetings were clearly alluded to in point 17(c) and (e) of the section of 'The Facts' in the SO dealing with the ETF (Chapter 2, Section 2), and the documents in question were in the Box (see paragraph 95 above). Blue Circle could therefore reasonably have linked those documents to the relevant passages of the SO and have deduced from them the conclusions the Commission was going to draw from them as regards the various infringements referred to in Article 4 of the contested decision.

349 Blue Circle also refers to various documents concerning other meetings mentioned in recital 25 of the contested decision. They concern the ETF meeting of 17 June 1986 in London, mentioned in recital 2 5 , paragraph 11, of the contested decision (documents 33.126/18781 to 18790); documents concerning the ETF meeting on 2 July 1986 in Milan, mentioned in recital 2 5 , paragraph 12, of the contested decision (documents 33.126/18756, 18757 and 18791 to 18794); documents concerning the ETF meeting on 8 July 1986 in Geneva, mentioned in recital 2 5 , paragraph 13, of the contested decision (documents 33.126/18757 and 18795); documents concerning the ETF meeting on 19 August 1986 in Geneva, mentioned in recital 2 5 , paragraph 14, of the contested decision (documents 33.126/18757, 18758 and 18795 to 18811); a document concerning the ETF meeting in Baden-Baden on 9 September 1986, mentioned in

350 Blue Circle refers in addition to documents 33.126/4487 t o 4 4 9 0 (contested decision, recital 2 5 , paragraph 48), the internal note of 1 June 1987 d r a w n u p by Lafarge following the meetings in Luxembourg from 25 t o 28 M a y 1987, in which it is stated, inter alia, regarding the future of the ETF: '... as the tool h a d been forged it might as well be kept ready for use'. Those documents were in the Box made available t o Blue Circle during the administrative procedure (see paragraph 95 above). Blue Circle could reasonably have foreseen the conclusions the Commission w a s going t o d r a w from them, because in point 61(h) of the SO, relating t o the 'Legal Assessment' of the ETF (Chapter 10), the Commission stated that 'the infringements committed by the undertakings in question [in the ETF] from 1986 [were] all the more serious as they [had been] of long duration', but it did n o t establish, as it had done for the other objections, any date for the end of the infringement, and in point 93(b) of the SO, concerning the applicability of Article 15(2) of Regulation N o 17, it '[considered] that almost all of the agreements, decisions and concerted practices [were] continuing'. The documents in question must therefore be considered to be admissible evidence against Blue Circle.

352 The SFIC submits that there was no reference in the international part of the SO to the agendas and minutes of three of its meetings, held on 8 July, 9 September and 7 October 1986 (documents 33.126/14828 to 14860; minutes cited in recital 2 9 , paragraph 4, of the contested decision), which were used against it so as to hold it responsible for the infringements referred to in Article 4(1) to (3)(a) of the contested decision. However, the Court finds that the documents in question, which emanate from SFIC and were in the file relating to France to which it was given access during the administrative procedure, were alluded to in broad terms in the chapter of the SO dealing with France, in the passage relating to exports of cement from Greece (Chapter 5, point 44(f)), which concludes, in regard to those documents, that 'in any case the dates of the meetings of the office (of the SFIC) with "exports of Greek cement" on their agenda must be compared with the dates of the activities of the "Cembureau Task Force or European Task Force" referred to in Section 2 above'. It is clear from that passage that those documents, although referred to in the chapter of the SO relating to France, were clearly linked by the Commission not only to the objections concerning the French producers but also to the international objections relating to the ETE O n reading those statements, SFIC should therefore have realised that those documents, despite their position in the SO, were liable to be used by the Commission in the contested decision also in support of the objections against the applicant in the context of the ETF, and that it was appropriate for it to comment on documents 33.126/14828 to 14860 both by reference to the national objections and by reference to the international objections raised against it in the SO. They are therefore admissible evidence against it. Since the link between those national documents and the objections relating to the ETF had been clearly established in the SO and since SFIC had been able to comment on those documents during the administrative procedure, the Commission was legally entitled to refer to them in the contested decision, notwithstanding the fact that the national objections had been dropped.

II - 619

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

that the setting-up of Interciment infringes Article 85(1) of the Treaty, was going to be used as incriminating evidence in the contested decision.

355 Documents 33.126/10960 to 10962 (statement of accounts of B C O , Blue Circle's Swiss subsidiary, of 7 November 1986), 10958 (telex from Blue Circle to Cementia of 10 October 1987), 6647 (handwritten Lafarge note of 3 October 1986) and 2 9 1 5 (undated legal opinion of French origin) (contested decision, recital 26, paragraphs 7, 1 1 , 12 and 13), to which Holderbank refers and which were also used by the Commission in the context of the infringement referred to in Article 4(2) of the contested decision, were expressly mentioned in the SO (SO, point 18 and footnote 14) and were in the Box (see paragraph 95 above). The mere fact that they were not identified in the SO by reference to their pagination cannot constitute an infringement of the applicant's rights of defence. Holderbank also refers to documents 33.126/16218 and 16220 (contested decision, recital 26, paragraph 8) which relate to the subscription by Italcementi of its share quota in the capital of Interciment and the subsequent resale of its shares to Holderbank. Those facts were clearly set out in point 18 of the SO and the documents in question were in the Box. Holderbank could therefore reasonably have linked those documents to the relevant passages of the SO and deduced from them the conclusions the Commission intended to d r a w from them as regards the infringement referred to in Article 4(2) of the contested decision.

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contract on the purchase of cement from Titan are the result of agreements and/or concerted practices between the Italian producers Italcementi, Unicem and Cementir, ... aimed at removing from the Greek producers an important customer through which they could penetrate the Italian market.' Italcementi, which, as a signatory, had a copy of the agreements concluded in April 1987 could therefore reasonably have foreseen the conclusions which the Commission was going to draw from them as regards the infringement referred to in Article 4(3)(b) of the contested decision. In those circumstances, documents 33.126/12145 to 12342 are admissible evidence against Italcementi.

358 As regards, in particular, the carrot actions referred to in Article 4(4) of the contested decision, Blue Circle complains that the Commission did not mention in the SO the ' M e m o r a n d u m of Understanding' (document 33.126/11096) referred to in recital 2 8 , paragraph 9, of the contested decision. It is a document, contained in the Box (see paragraph 95 above), which confirms the content of another document, namely the internal note of Blue Circle headed 'Discussion p a p e r — · Cheap i m p o r t s — Meeting 7.7.1986' (documents 33.126/10992 to 10994) which was also in trie Box. T h a t internal m e m o r a n d u m was expressly mentioned in point 20(a) of the section of 'The Facts' in the SO dealing with the ETF (Chapter 2, Section 2) and the extracts from that document were cited in the same point of the SO. In those circumstances, Blue Circle could reasonably have linked document 33.126/11096 to the relevant passages of the SO and deduced the conclusions the Commission was going to d r a w from them as regards the infringement referred to in Article 4(4) of the contested decision.

359 Documents 33.126/19864 and 19865 (contested decision, recital 2 8 , paragraph 9), to which Blue Circle refers, is an undated Heracles note on paper headed 'Sheraton Park Tower — London' which was used by the Commission in the context of the infringement referred to in Article 4(4)(a) of the contested decision. They were in the Box (see paragraph 95 above) and were expressly mentioned in point 20(a) of the section of 'The Facts' in the SO dealing with the ETF (Chapter 2, Section 2). They are therefore also admissible evidence against that applicant.

362 Blue Circle also submits that the record of the EPC meeting of 20 October 1988 (contested decision, recital 36, paragraph 8; documents 33.126/18179 and 18180), mentioned in order t o prove that the intra-European problems were discussed in the EPC, w a s n o t adequately referred to in the SO. T h e Court points out that in point 28 (Chapter 2, Section 4) of the S O , entitled 'Respect of home markets', express reference w a s made to the EPC meeting of 2 0 October 1988. In those circumstances, Blue Circle could have foreseen that the Commission would use the record of that meeting, which w a s in the Box (see paragraph 95 above), t o show that the EPC dealt n o t merely with exports outside Europe but also with intra-European trade.

365 As regards, first, the evidence used to substantiate the finding of the infringement referred to in Article 1 of the contested decision, Unicem complains in particular that it was not given access to the 'Members Directory' of Cembureau. That document, which is not in the investigation file, was relied upon by the Commission in recital 45, paragraph 13, of the contested decision in order to refute Unicem's allegation that none of its representatives had ever been a Head Delegate. It is a document on which the Commission relied in order to show that Unicem participated in the Cembureau agreement. As it was not mentioned in the SO and was not in the Box (see paragraph 95 above), it cannot be considered to be admissible evidence against Unicem. It will be necessary, when examining the substance of the claim that Article 1 is unlawful, to assess whether Unicem's participation in the Cembureau agreement is adequately proved without that item of evidence (see paragraphs 1429 to 1431 below).

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/9J, T-68/95 TO T-71/9J, T-87/95, T-88/95, T-103/95 AND T-104/95

decision is unlawful, will assess whether the infringement which VNC is found to have committed is adequately proved without those documents (see paragraphs 1579 to 1593 below).

368 Aalborg submits that documents 33.126/15096 to 15305, cited in recital 16, paragraphs 8 to 22, of the contested decision, are new items of evidence. These documents are used by the Commission to prove the existence of the infringement referred to in Article 2(2) of the contested decision and Aalborg's participation therein. The Court finds that, apart from documents 33.126/15096 and 15097, none of those documents were mentioned in the SO or were in the Box (see paragraph 95 above). Those documents cannot be regarded as admissible evidence against Aalborg. The Court, when examining the substance of the claim that Article 2(2) of the contested decision is unlawful, will assess whether the infringement which Aalborg is found to have committed is adequately proved without those documents (see paragraphs 1579 to 1593 and 1684 to 1691 below).

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371 The Commission contends, however, that there can be no question of infringement of the rights of the defence, because the whole of document 33.322/2901 was sent to the applicants on 3 May 1993.

372 However, the Court points out that on that date the hearings had already been concluded. As the applicants were not invited to submit their observations on the passages of the document which had previously been blanked out, they were not in a position to effectively make known their views on the parts of document 33.322/2901 on which the Commission relied in recital 49, paragraph 2 of the contested decision. It follows that the last part of the extract set out in recital 21, paragraph 2 of the contested decision is not admissible evidence against them. The Court, when examining the substance of the claims that Article 3(2) of the contested decision is unlawful, must therefore assess whether the infringement found therein is adequately proved without the passages from document 33.126/2901 to which access was not given during the written and oral phases of the administrative procedure (see paragraphs 2041 to 2092 and 2136 below).

375 As regards the evidence adduced by the Commission to substantiate the finding of the infringement referred to in Article 3(3) of the contested decision, SFIC objects to the use in that decision of BDZ's statistical model sent by it to the Commission on 4 May 1993 (contested

II - 625

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/9S, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

decision, recital 22, paragraph 18). The Court finds that the Commission refers to those statistics in the context of the infringement referred to in Article 3(3)(b) of the contested decision. As the applicant has not been able to express its views on that evidence, it cannot be used against it. The Court, when examining the substance of the claim that Article 3(3)(b) of the contested decision is unlawful, must, if necessary, assess the effect of the inadmissibility of that evidence on the merits of the Commission's finding that the infringement was committed (see paragraph 2493 below).

377 Holderbank also refers t o documents N o s 33.126/4487 t o 4 4 9 0 (contested decision, recital 2 5 , paragraph 4 8 ) , which correspond t o the internal note of 1 June 1 9 8 7 d r a w n up by Lafarge following the meetings in Luxembourg on 2 5 t o 28 M a y 1987, a note in which it is stated, in regard t o the future of the ETF: '... as the tool had been forged it might as well be kept ready for use'. Although, according t o the Commission, those documents were in the Box (see paragraphs 95 and 350 above), Holderbank has firmly denied that fact during the procedure before the Court. In the absence of proof of actual communication of those documents during the administrative procedure they are n o t admissible against Holderbank. T h e Court, when examining the substance of the claim that Article 4(1) of the contested decision is unlawful, will assess whether the infringement found therein and its duration are adequately proved without documents N o s 33.126/4487 t o 4 4 9 0 (see paragraph 2808 below).

E — The failure to send to the applicants documents which were not in the investigation file

1. Preliminary observations

380 Several applicants complain that during the administrative procedure the Commission did not send to them certain documents which although not part of the actual investigation file would nevertheless have been useful in preparing their defence during the administrative procedure. Thus, they complain that they were not given access to other addressees' replies to the SO (2); to the transcripts of the hearings relating to the national agreements and conceited practices (3); to the Commission's file on the notification of the Belgian-Dutch Basing point system (4); to the Commission's file on Greek State aid and the Helleno-British inter-governmental agreement (5); to some internal notes of the Commission (6); and to the written statements of defence in the other Cement cases (7).

381 Before examining the various arguments submitted, it is necessary to distinguish two situations.

382 First, some applicants complain that the Commission did not allow them access during the administrative procedure to documents which were not in the investigation file and which were used as incriminating evidence in the contested decision. Since documents that have not been communicated to the parties concerned during the administrative procedure are not admissible evidence (judgments cited in paragraph 323 above, AKZO v Commission, paragraph 2 1 , Shell v Commission, paragraphs 55 and 56, and T-13/89 ICI v Commission, paragraphs 34 and 35), it will be necessary, if it should prove that the Commission relied in the contested decision on documents that were not in the investigation file and were not communicated to the applicants,

383 Second, some applicants consider that the Commission infringed their rights of defence by n o t communicating t o them, during the administrative procedure, documents which, although not in the investigation file, might have contained exculpatory evidence. However, in a proceeding finding an infringement of Article 85 and/or 86 of the Treaty the Commission is not required t o make available, of its o w n initiative, documents which are n o t in its investigation file and which it does n o t intend t o use against the parties concerned in the final decision. Consequently, an applicant w h o learns during the administrative procedure that the Commission has documents which might be useful for its defence must make an express request t o the Commission for access t o those documents. If the applicant does n o t do so during the administrative procedure, his right to do so is barred in any action for annulment brought against the final decision. T h e reasoning in paragraph 96 of Case T-30/91 Solvay v Commission, cited in paragraph 106 above, according to which an infringement of the rights of the defence is unconnected with the manner in which the undertaking concerned conducted itself during the administrative procedure, relates only t o access t o documents which are part of the Commission's investigation file. It, during the administrative procedure, the Commission has rejected an applicant's request for access t o documents which are not in the investigation file, an infringement of the rights of the defence may be found only if it is proved that the outcome of the administrative procedure might have been different if the applicant had had access t o the documents in question during that procedure (Hercules Chemicals v Commission, cited in paragraph 140 above, paragraph 56; T-30/91 Solvay v Commission, paragraph 6 8 , and T-36/91 ICI v Commission, paragraph 78, both cited in paragraph 106 above).

386 If the Commission wishes to rely on a passage in a reply to an SO or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 85(1) of the Treaty, the other parties involved in that proceeding must be placed in a position in which they can express their views on such evidence (judgments cited in paragraph 323 above, AKZO v Commission, paragraph 21, Shell v Commission, paragraphs 55 and 56, and T-13/89 ICI v Commission, paragraphs 34 and 35). In such circumstances the passage in question from a reply to the SO or the document annexed thereto constitutes incriminating evidence against the various parties alleged to have participated in the infringement.

387 The Court points out, first, that some applicants refer to documents which were mentioned in the contested decision in order to describe a fact or behaviour, but which were not used subsequently in order to make a finding of an infringement. Accordingly, those documents cannot be regarded as incriminating evidence.

389 Irish Cement refers to other extracts from replies to the SO which merely assert a fact not used to support the finding of an infringement in the contested decision. Thus, the extract from Titan's reply to the SO, cited in recital 16, paragraph 14, of the contested decision, merely refers to the fact that cement prices in Greece were subject to government authorisation up to May 1989. That extract cannot therefore be regarded as incriminating evidence which the Commission should have notified to Irish Cement during the administrative procedure. The same is true of the extract from Blue Circle's reply to the SO, cited in recital 24, paragraph 3, to which Irish Cement refers, which states that M r Marshall was appointed from 1 June 1985 as Head Delegate for the United Kingdom. On any view, as a direct member of Cembureau, Irish Cement should have known that M r Marshall had become Head Delegate for the United Kingdom with effect from that date.

390 Second, Aker, E U R O C and Castle refer to extracts from other addressees' replies to the SO cited in the contested decision which support the finding of an infringement in that decision. However, inasmuch as those extracts do not relate to infringements attributed to the applicants.

II - 6 2 9

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95,T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

they are not documents used to incriminate them. The applicants cannot therefore allege that their rights of defence were infringed. The arguments submitted to that effect by Aker and EUROC, challenging the Commission's finding of the infringements referred to in Articles 2, 3, 4(4)(a) to (g), 5, 6 and 7 of the contested decision, and those of Castle, challenging the finding of the infringements referred to in Articles 2, 3, 4(1) to (3) and 4(b) to (h), 6 and 7 of that decision, must therefore be rejected.

393 Fourth, some applicants refer to extracts from replies to the SO which were used by the Commission solely in order to prove the participation in infringements referred to in the contested decision by the addressees of the SO from w h o m those replies emanated. Thus, Aalborg refers t o CBR's reply to the SO, mentioned in recital 2 8 , paragraph 2 1 , of the contested decision. The extract from that reply was used in the context of the infringement referred to in Article 4(4)(g) of the contested decision. However, Aalborg was not held responsible for that infringement. The reply to the SO in question is not therefore incriminating evidence used against it. Aalborg, Castle, Irish Cement, Holderbank, Aker and E U R O C refer also to one or rnore extracts from the replies to the SO of CBR, Aker, E U R O C , Blue Circle, Lafarge Dyckerhoff, Heidelberger, B D Z and Asland, cited in recital 2 5 , paragraph 9, of the contested decision. However, those extracts contain only an admission or denial by the undertaking or association of undertakings concerned of participation in the H e a d Delegates meeting on 9 June 1986 in Stockholm. Those extracts cannot therefore be considered incriminating evidence

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against the abovementioned applicants which should have been notified to them during the administrative procedure.

394 Holderbank, Aker and E U R O C refer also to a record of the ETF meeting on 19 August 1986, submitted as Annex 15 to the reply to the statement of objections of Aker and E U R O C , cited in recital 2 5 , paragraph 14, of the contested decision. By letter dated 9 July 1992, that record was sent by the Commission to all the undertakings and associations of undertakings to which the international section of the SO was addressed and they were invited to malie known any comments which they might have on it (contested decision, recital 2, paragraph 3 ; see paragraph 5 above). Holderbank, Aker and E U R O C cannot therefore contend that their rights of defence were infringed by virtue of that document.

II - 631

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

399 Fifth, Aalborg and Irish Cement refer to Cembureau's reply, mentioned in recital 18, paragraph 4, of the contested decision, relating to a procedure under Article 15(1) of Regulation N o 17. In that reply Cembureau had stated that the Blue Circle m e m o r a n d u m of 1 December 1983 (contested decision, recital 18, paragraph 2; documents 33.126/11332 to 11334), which refers to 'the Cembureau agreement or Cembureau Principle of not transhipping to internal European M a r k e t s ' , concerned 'good neighbour rules encouraged by Cembureau', that it was a 'type of conduct which [was] desired by members but [did] not in itself contain any constraint or a fortiori any penalty' or 'practices and ethics that have gradually evolved through contact with businesses and economic development in various countries'. It is apparent from recital 4 5 , paragraphs 4 and 6, of the contested decision that those extracts from Cembureau's reply were used as evidence of the infringement referred to in Article 1 of the contested decision. However, the Court finds that Cembureau's reply (documents 33.126/13568 to 13573) was referred to and that extracts from it were even cited w o r d for word in the SO (point 9). Furthermore, the document in question was in the Box (see paragraph 95 above). There cannot therefore be any question of infringement of the rights of the defence.

401 Irish Cement refers in that regard to Annexes 2a and 2 b to Cembureau's reply to the SO (contested decision, recital 16, paragraphs 11 and 17), used as incriminating evidence by the Commission to prove the infringement constituted by the periodic exchanges of price information between the members of Cembureau, an infringement referred to in Article 2(2) of the contested decision. Those documents, which correspond to the 'Cement Price Reference File' (hereinafter 'CPRF') for Luxembourg and D e n m a r k respectively, were used in order to prove that the prices communicated by Ciments Luxembourgeois and Aalborg to Cembureau were passed on to the members of Cembureau, including Irish Cement. Irish Cement also refers to extracts from replies to the SO of FIC, cited in recital 16, paragraph 10, last subparagraph, of the contested decision; of Aalborg, cited in recital 16, paragraph 11, first paragraph; and of BDZ, cited in recital 16, paragraph 13. Those passages were also used by the Commission in finding the infringement referred to in Article 2(2) of the contested decision. Aalborg complains that the Commission did not give it access to Annex 2a to Cembureau's reply referred to in recital 16, paragraph 17, of the contested decision, that is to say, to the CPRF for Luxembourg. Aalborg also complains of the fact that during the administrative procedure it was not given access to the extracts from FIC's reply mentioned in recital 16, paragraph 10, of the contested decision and to the extract from the reply of Irish Cement referred to in recital 16, paragraph 15. Those passages were also used by the Commission in order to establish the infringement referred to in Article 2(2) of the contested decision, in which Aalborg is alleged to have participated. However, the Court finds that the above documents referred to by Aalborg and by Irish Cement were not mentioned in the SO or communicated to those applicants during the administrative procedure. In those circumstances, those documents cannot be regarded as admissible evidence against them (judgments in AEG v Commission, cited in paragraph 364, paragraphs 2 4 to 30, T-30/91 Solvay v Commission, cited in paragraph 106 above, paragraph 5 8 , and T-37/91 ICI v Commission, cited in paragraph 142 above, paragraph 71). The Court, when examining the substance of the claim that Article 2(2) of the contested decision is unlawful, must therefore assess whether the infringement found therein and the participation of

403 Rugby and Castle complain that in the contested decision (recital 2 8 , paragraph 12, last paragraph) the Commission referred to Blue Circle's reply to the SO as incriminating evidence. The Court finds that in that part of the contested decision the Commission, after having pointed to the evidence showing that Rugby and Castle had borne some of the costs which Blue Circle had incurred on the occasion of the defensive measures allegedly adopted by it against imports of Greek cement, states as follows: T h e s e pointers are indirectly confirmed by Blue Circle's reply to the [SO]: it recognises that there was a practice of requesting contributions from the other undertakings; by acknowledging that this tactic was not always crowned with success, it confirms that, on other occasions, contributions were paid. Blue Circle confines itself to affirming that there was no prior agreement with the other producers on the occasion in question.' That extract from Blue Circle's reply was used by the Commission to show that there was a concerted practice between Rugby, Castle and Blue Circle, designed to prevent and/or reduce Greek cement imports into the United Kingdom. The corresponding infringement is referred to in Article 4(4)(a) of the contested decision. Since Rugby and Castle were not in fact able to make known their views effectively on the extract in question during the administrative procedure, that extract must also be excluded as evidence. The Court, when examining the substance of the claim that Article 4(4)(a) of the contested decision is unlawful, must therefore, if necessary, assess the effect of the inadmissibility of that evidence on the merits of the Commission's finding that the infringement was committed.

405 T h e Court points out in that regard that in the SO and in the contested decision the Commission relied on specific documentary evidence in finding the various infringements and the applicants' participation in some of those infringements. T h e fact that some undertakings, whose circumstances are n o t the subject of proceedings before the Court (Woodpulp II, cited in paragraph 106 above, paragraph 197, and Dunlop Slazenger v Commission, cited in paragraph 2 7 0 above, paragraph 176), succeeded in their reply t o the SO in showing that there w a s n o adequate proof of their participation in the alleged infringements does not mean that those replies contained evidence of such a nature as t o cast a different light on the specific documentary evidence on which the Commission relied in finding that Castle, Irish Cement, Aker and E U R O C participated in various infringements referred t o in the contested decision.

406 Finally, Irish Cement submits that the Commission seriously misused its powers in failing t o take into account its reply t o the SO and in failing t o refute the specific evidence produced in support of that reply.

407 However, the Court finds that Irish Cement has not adduced any particulars other than those in the various pleas and arguments by which it contests the substantive legality of the contested decision in its o w n case. Examination of this argument is therefore indissociable from that relating t o those pleas and arguments.

3. Records of the hearings relating to the national agreements and concerted practices

411 Dyckerhoff (T-35/95), Aalborg (T-44/95), Rugby (T-53/95), Castle (T-56/95), Aker (T-70/95) and EUROC (T-71/95) submit that in order to prepare their defence during the administrative procedure they should have had access to the Commission's file relating to the notification of the Belgian-Dutch Basing point system. In their statements lodged following the measures of 2 October 1996 and 18 and 19 June 1997 they requested the Court to order a measure of organisation of procedure or of inquiry requiring the Commission to give them access to that file. In a separate statement of 25 July 1996 Dyckerhoff made a similar request.

412 The Court points out that the Belgian-Dutch Basing point system is a system for setting prices which had been notified to the Commission on 16 July 1981. The applicants allege that the documents in that file might have served to support their contention that only lawful methods of regulating trade between Member States had been on the agenda of the meeting of Head Delegates on 14 January 1983, in other words, that the file concerning the Belgian-Dutch Basing point system constitutes exculpatory evidence.

413 However, the Court finds that during the administrative procedure only Dyckerhoff, Rugby, Castle, Aker and E U R O C made an express request that that file be disclosed to them. Aalborg cannot therefore complain before the Court that it did not have access to that file during the administrative procedure (see paragraph 383 above).

414 The Court finds, next, that the applicants have not proved that if they had had access to the file relating to the notification of the Belgian-Dutch Basing point system they would have been able to raise arguments of such a nature as to affect the outcome of the contested decision. In that

416 Dyckerhoff (T-35/95), Castle (T-56/95), Aker (T-70/95), E U R O C (T-71/95) and Blue Circle (T-88/95) allege that their rights of defence were infringed by the fact that they were not given access during the administrative procedure to the file on State aid granted by the Hellenic Republic or to the file on the inter-governmental agreement between Greece and the United Kingdom to limit imports into the United Kingdom of products from Greece. In its statement of 2 5 July 1996, Dyckerhoff requests the Court to order a measure of organisation or investigation through which the Commission would give access to its file relating to the discussions concerning the State aid granted by the Hellenic Republic. In their statements lodged following the measures of 2 October 1996 and 18 and 19 June 1997, Castle, Aker and E U R O C make a similar request. Furthermore, in their statements lodged following the measures of 2 October 1996 and 18 and 19 June 1997 Rugby, Castle, Aker and E U R O C request the Court to order the Commission to produce the file relating to the quota agreement apparently concluded by the United Kingdom Government and the Greek Government. By letter lodged at the Registry of the Court on 2 6 August 1996, Blue Circle requested disclosure of the correspondence between the Commission and the Government of the United Kingdom and the Greek Government (in particular, correspondence between M r Clark, then President of the Board of Trade at the Department of Trade and Industry (hereinafter 'the DTI'), and M r Sutherland, then member of the Commission with responsibility for competition policy), of all correspondence between those t w o governments and of all the Commission's documents relating to the 'Greek question' (level of imports into the United Kingdom of Greek cement during the period 1985-1986; State aid granted by the Hellenic Republic; restriction of imports into the United Kingdom of products from Greece).

case the Court points out that the Commission has never disputed the existence of such lobbying or that it took into consideration only measures which went beyond such awareness and/or pressure activities (contested decision, footnote 115); or they concern State aid granted by the Hellenic Republic, in which case the Court points out that the Commission expressly took that circumstance into account in the contestée! decision but considered that the State aid could in no way justify the private defensive measures adopted in contravention of Article 85( 1 ) of the Treaty (contested decision, recital 53, paragraph 8); or they concern the negotiations on and conclusion of an agreement between the United Kingdom Government and the Greek Government that aimed to restrict imports of Greek products into the United Kingdom, in which case the Court points out that the Commission in fact took formal note of the fact that the restriction of imports into the United Kingdom of products from Greece was not officially agreed between the Greek and the United Kingdom producers but between the governments of the two Member States concerned (contested decision, recital 28, paragraph 13), which did not prevent it from taking the view that the purchases by certain Western European producers of Greek cement and clinker were measures intended to curb Greek imports into the other Member States of the Community and that they were the results of agreements between producers (contested decision, recital 28, paragraph 14). In those circumstances, the comments which the applicants might have made on the basis of the various exchanges of letters could not but have confirmed matters fully taken into account by the Commission and could not have led to a different outcome to the administrative procedure as regards the objections upheld against them in the contested decision. The requests for access to the documents identified in the preceding paragraph must be rejected because those documents could not have been useful to the defence of the applicants during the administrative procedure.

judicature the Commission's internal documents are not to be communicated to the applicants, unless the circumstances of the case are exceptional and the applicants make out a plausible case for the need to do so (order of the Court of Justice in Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1986] ECR 1899, paragraph 11; judgment in Case T-35/92 Deere v Commission [1994] ECR II-957, paragraph 31, and order in NMH Stahlwerke and Others v Commission, cited in paragraph 196 above, paragraph 35). That restriction on access to internal documents is justified Dy the need to ensure the proper functioning of the institution when it deals with infringements of the Treaty competition rules (order in NMH Stahlwerke and Others v Commission, paragraph 36).

421 However, Cimpor has n o t adduced any evidence to support its assertion that the reports, opinions, comments and notes d r a w n up by the officials in D G III and D G IV, by the Advisory Committee and by the hearing officer would be useful to its defence.

422 As regards the t w o internal m e m o r a n d a of D G III sent to D G IV, Cimpor and SECIL seek t o underpin their argument that it w a s economic reality and not the existence of an alleged agreement and concerted practice which restricted trade between the M e m b e r States in general and between Spain and Portugal in particular.

423 According t o the contested decision, Cimpor and SECIL participated in t w o infringements, namely the Cembureau agreement (contested decision, Article 1) and the Spanish-Portuguese agreement (contested decision, Article 3(2)). T h e Court finds that both in the SO (points 9 and 61) and in the contested decision (recitals 18, 19, 4 5 and 46) the Commission relied n o t on the conduct of the undertakings concerned on the market but on specific documentary evidence t o prove the existence of the Cembureau agreement and the participation of those t w o undertakings in it. T h e same is true of the Spanish-Portuguese agreement (SO, points 11 and 61(c); contested decision, recitals 2 1 and 49).

427 Blue Circle requests the Court to order the Commission to disclose all the internal documents and guidelines which it drew up in regard to access to the file following the judgments cited in paragraph 106 above (T-30/91 Solvay vCommission and T -36/91 ICI v Commission). It explains that those guidelines are relevant to its defence inasmuch as they may show that the Commission itself accepted that the approach which it adopted in the administrative procedure, and which it continues to defend before the Court, does not tally with the principles which it laid down for itself following those judgments.

431 However, that applicant's request w a s for disclosure of documents d r a w n up by the Commission after the adoption of the contested decision. Consequently, the legality of that decision cannot be affected by the Commission's refusal t o grant the access requested (Baustahlgewebe v Commission, cited in paragraph 4 1 5 above, paragraph 30).

432 Furthermore, since the various cases were n o t joined during the written and oral procedures, the Commission w a s n o t obliged t o disclose t o Aalborg the statements in defence lodged in cases other than that between it and Aalborg. Moreover, during the present proceedings Aalborg has never requested that the various pending cases be joined. O n the contrary, by letter of 2 7 February 1996 it expressly requested the Court t o treat those cases individually. Finally, by letter of 10 December 1998 Aalborg stressed that only its o w n pleas in law and arguments should be taken into consideration by the Court. It cannot therefore complain that the Commission did n o t grant it access t o the statements in defence in the other cases.

433 FIC (T-30/95) alleges that the Commission replies t o some of its arguments in the context of Case T-26/95 Cembureau v Commission, but in that same case defends arguments which contradict those which it defends in Case T-30/95. It considers that the Commission's arguments in Case T-26/95 cannot be used against it and that the Court cannot take them into account in order to decide on Case T-30/95.

434 However, even if they were well founded, those assertions do not prove that there was an infringement of its rights of defence during the administrative procedure. They concern the conduct of the proceedings before the Court, which cannot as such affect the legality of the contested decision (Baustahlgewebe v Commission, cited in paragraph 415 above, paragraph 30). In any event, even if the Commission contradicts itself in some of its statements in defence, it is only the contested decision which is authentic, not the Commission's interpretation of it in one or other of those statements.

437 In their challenge to that approach, the applicants identified below rely on three pleas: infringement of the rights of the defence, the principle of equal treatment and Article 190 of the Treaty. The Court will examine those pleas, drawing a distinction drawn between the dropping of the national objections (A) and the dropping of some of the international objections (B).

A — The dropping of the national objections

438 FIC (T-30/95), ENCI (T-31/95), V N C (T-32/95), Ciments Français (T-39/95), Lafarge (T-43/95) BDZ (T-48/95), Rugby (T-53/95), Asland (T-55/95), Castle (T-56/95), Uniland (T-58/95), Oficemen (T-59/95), Italcementi (T-65/95), H o r n o s Ibéricos (T-69/95), Aker (T-70/95) and E U R O C (T-71/95) submit that the Commission infringed their rights of defence during the administrative procedure by failing to grant them an opportunity to make known their views on the decision of 23 September 1993 inasmuch as it dropped the national chapters of the SO. They refer in that regard to Article 19(1) of Regulation N o 17 and to Articles 2 and 4 of Regulation N o 99/63 and to the judgment in CB and Europay v Commission, cited in paragraph 83 above. Since the factual and legal background was fundamentally altered by the decision of 23 September 1993, the applicants argue that the Commission should have issued a new SO during the administrative procedure, which it failed to do. T h a t defect affects the lawfulness of the contested decision.

439 The Court points out, however, that as a matter of principle the abovementioned undertakings and associations of undertakings cannot complain that their rights of defence were infringed by the Commission's dropping of some objections during the administrative procedure: when an addressee of an SO replies to it, his specific aim is to cause the dropping of objections. Moreover, the case-law expressly recognises the Commission's power to drop objections (Joined

442 Unicem (T-50/95), Italcementi (T-65/95) and Cementir (T-87/95) submit that, despite the dropping of the national objections, an objection contained in the national chapters of the SO relating to Italy, that is to say, the agreement on the contracts and agreements concluded between Calcestruzzi and the Italian cement producers, was 'revived' by the Commission in Article 4(3)(b).

443 The Court finds that in the international part of the SO (Chapters 2 and 10) the Commission clearly set out the objection referred to in Article 4(3)(b) of the contested decision. Thus, in point 61(h)(iv) of the SO (Chapter 10) it stated as follows: 'The pressure brought to bear on Calcestruzzi and the non-implementation of the contract on the purchase of cement from Titan are the result of agreements and/or concerted practices between the Italian producers Italcementi, Unicem and Cementir...'. Even though the chapters of the SO relating to Italy (Chapters 3 and 13) set out the same objection, the Commission did not 'revive', in the contested decision, a national objection that it had dropped: the infringement referred to in Article 4(3)(b) of the contested decision is based on an objection which was clearly set out in the international part of the SO.

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CIMENTERIES CBR AND OTHERS V COMMISSION

444 Unicem submits that in the contested decision the Commission also upheld the national objection concerning Italy, relating to the SIPAC agreements (SO, Chapter 3, point 35(a); Chapter 13, point 70(b), first indent).

445 The Court points out that SIPAC is a joint subsidiary set up by Cementir, Italcementi, Unicem and Calcestruzzi. In the SO the Commission had taken the view that the setting-up of SIPAC infringed Article 85(1) of the Treaty (SO, Chapter 13, point 70(b), first indent). As the Commission acknowledges, the contested decision does not uphold that objection. In that decision, the Commission does not express a view on the question whether or not SIPAC is in conformity with Article 85(1) of the Treaty. Unicem's argument must therefore be rejected.

448 The SFIC (T-36/95), Oficemen (T-59/95), Cimpor (T-61/95) and SECIL (T-62/95) contend that after dropping the objections relating to the national agreements and concerted practices, the Commission should also have removed from the file the documents relating to those agreements and concerted practices. However, the contested decision contains some references to 'national' documents. The SFIC refers in that regard to the minutes of the meetings of the SNFCC Bureau of 8 July, 9 September and 7 October 1986 (contested decision, recital 2 9 , paragraph 4; documents 33.126/14828 to 14860) mentioned in Chapter 5 ('France') of the SO. Cimpor and SECIL refer to evidence cited in Chapter 9 ('Portugal') of the SO, namely documents 33.322/79, 84, 85, 88, 89, 90, 92, 9 3 , 9 5 , 9 6 , 1 6 2 , 1 6 3 to 166, 170, 1 3 1 4 , 1 4 0 6 to 1 4 0 8 , 1 4 1 0 to 1412 and 2898 to 2 9 0 3 , all mentioned in recital 21 of the contested decision. Cimpor refers to other documents which were also allegedly used by the Commission in the context of the Spanish- Portuguese agreement (contested decision, recital 21) and which were mentioned only in the national chapter of the SO, namely Chapter 9 ('Portugal'). Those documents are documents 33.322/59,94, 155 to 157, 158, 159, 160, 161,169,171,172, 177,181,252, 270 to 276, 1311 and 1397 to 1399. Finally, Oficemen criticises the fact that the Hispacement document (documents 33.322/2898 to 2903) to which the Commission refers in recital 21, paragraphs 2

II - 643

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-S0/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

449 The Court has already found in the course of its examination of the first plea that documents N o s 33.322/59, 94, 169 and 1 7 1 , referred to by Cimpor, were not used by the Commission in the contested decision (see paragraphs 286 and 2 8 7 above). The argument which Cimpor bases on those documents is therefore founded on an error of fact. O n the other hand, it has been held that document 33.322/1399, referred to in recital 2 1 , paragraph 6, of the contested decision, is not admissible as against Cimpor (see paragraph 3 7 4 above). The other documents to which the applicants refer in the preceding paragraph were mentioned in the national chapter of the SO that was served on SFIC, Oficemen, Cimpor and SECIL during the administrative procedure. Those documents, apart from the Hispacement document (documents 33.322/2898 to 2903), which was only partially accessible (see paragraphs 369 to 372 above), were wholly accessible t o them during that procedure. Furthermore, the applicants concerned could reasonably have expected that the Commission would use the documents in question in the contested decision; although mentioned in the chapters of the SO relating to the national objections, those documents contain evidence as to the international objections (as regards documents 33.322/155 to 157, see paragraph 331 above; as regards documents 33.322/2898 to 2 9 0 3 , see paragraphs 332 and 333 above; as regards documents 33.322/162, 163 to 166, 170, 172, 1 8 1 , 252, 1 3 1 1 , 1314, 1406 to 1408 and 1410 to 1412, see paragraphs 3 3 4 to 3 3 7 above; as regards documents 33.322/1397 and 1398, see paragraph 340 above; as regards documents 33.322/79, 84, 85, 88, 89, 90, 92, 9 3 , 95, 96, 158, 159, 160, 1 6 1 , 177 and 270 to 2 7 6 , see paragraphs 341 to 344 above; as regards documents 33.126/14828 to 14860, see paragraph 352 above). In those circumstances, there can be n o question of infringement of the rights of the defence. As regards, however, the parts of the Hispacement document (documents 33.322/2898 to 2903), which were not accessible during the administrative procedure, the Court has already held (see paragraph 372 above) that when it examines the substantive pleas it will be necessary to assess whether the infringement found in Article 3(2) of the contested decision is adequately proved as against Oficemen, Cimpor and SECIL without the passages from document 33.322/2901 to which access was not given during the written and oral stages of the administrative procedure (see paragraphs 2 0 4 1 to 2 0 9 2 below).

452 SFIC also observes that, although it actually dealt with the significance of the documents relating to the French agreements and concerted practices during the administrative procedure, its comments were formulated exclusively from the point of view of the national objections, not of the international objections. In the contested decision the Commission took no account of the observations submitted by the applicant in reply to the national objections and, in particular, those relating to the minutes of tne meetings of the SNFCC Bureau on 8 July, 9 September and 7 October 1986 (documents Nos 33.126/14828 to 14860).

454 Italcementi (T-65/95) considers that the Commission infringed the principle of equal treatment in finding that it participated in the agreements concluded between Calcestruzzi, on the one hand, and Unicem, Cementir and itself, on the other, but not finding that Calcestruzzi participated in that infringement. Similarly, Unicem (T-50/95) contends that the infringements objected to in Article 4(3)(a) and (b) of the contested decision should have been attributed to Calcestruzzi. It adds that the agreements referred to in Article 4(3)(b) of the contested decision should also have been attributed to the 11 other Italian producers called upon in the SO to reply to that objection. It also submits that this infringement of the principle of equal treatment also affected its rights of defence, since it was compelled to defend itself on its own against an objection based on conduct which involved other parties w h o possessed information essential to its defence.

II - 6 4 5

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/9S TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

457 T h a t argument must be rejected. The SO did not contain any national chapter relating to the Netherlands. Furthermore, the applicants concerned have not shown that a proceeding concerning alleged agreements and concerted practices in the Netherlands has in fact been initiated and is being pursued. The undertakings and associations of undertakings referred to in a national chapter o f the SO were not therefore in the same situation as they were. In those circumstances, the fact that only the undertakings and associations of undertakings to which the SO referred benefited from the dropping of the national objections cannot be considered to discriminate against E N C I and V N C (judgment in Schumacker, cited in paragraph 123 above, paragraph 30). T h e Belgium-Netherlands-Germany agreements and concerted practices, in regard to which the Commission considers in recital 51 of the contested decision that it should not adopt a position, are an international objection. ENCI and the V N C cannot, by referring to the pursuit of an investigation concerning an international objection, therefore allege that the decision to drop the national objections infringed the principle of equal treatment. O n any view, the Commission's decision not to adopt a position in the contested decision on the subject of the Belgium-Netherlands-Germany agreements and concerted practices had the same effect on all the applicants concerned by that objection (see contested decision, recital 23), which in itself rules out infringement of the principle of equal treatment.

459 The Court finds that it was not necessary, in order to understand the Commission's reasoning in regard to the international objections in the SO or in the contested decision, to examine the national objections set out in the SO. As presented in the SO and in the contested decision, the international objections, namely the Cembureau agreement and the measures for implementing it at international level, did not depend on the existence of the national objections (see paragraphs 110 to 120 above). Since the dropping of the national objections did not affect the international objections and was therefore extraneous to those objections — the only objections to which the contested decision relates — the Commission was not required to give reasons in the contested decision for dropping them. As regards the contradiction alleged by Italcementi, the national objections were not, either in the SO or in the contested decision, regarded as evidence of the single and continuous Cembureau agreement. The arguments of FIC, Asland and Italcementi must therefore be rejected.

460 It follows from the whole of the foregoing that the Court must reject the third plea, and the second and fourth pleas, inasmuch as they relate to the dropping of the national objections.

B — The abandonment of the international objections as against some undertakings

461 It should be recalled that by letter of 2 7 September 1993 the applicants were informed that the national objections had been dropped. They were not, however, informed of the Commission's decision to drop the international objections in the SO as against some German and Spanish undertakings.

464 T h e Court finds that, although the letter sent on 2 7 September 1993 by the Commission to the addressees of the SO did n o t refer t o its decision of 23 September 1993 to drop the objections as against 12 German undertakings and six Spanish undertakings, the grounds n o w submitted by the applicants do n o t show that the observations which they might have made at that time concerning that decision might have led t o a different outcome to the administrative procedure, whether generally or specifically in regard t o them.

465 T h e Court points out in that regard that the fact that the Commission dropped the international objections as against a number of undertakings cannot be interpreted as a change in its assessment of the very substance of the objections formulated in the international part of the SO and upheld in the contested decision as against the applicants concerned. In any event, the comments which B D Z , Asland, Italcementi, Aker and E U R O C might have made on the Commission's decision of 2 3 September 1993 t o drop the international objections against a number of addressees of the SO could n o t have obscured the evidence on which the Commission relied in attributing t o them the international objections alleged against them in the SO and subsequently in the contested decision.

466 As regards the argument of Italcementi, Aker and E U R O C , based on alleged collective responsibility, the Court finds that the undertakings in regard t o which the proceeding w a s terminated are all indirect members of Cembureau, that is to say, undertakings represented in Cembureau by their associations, B D Z or Oficemen. T h e Commission never took the view, either in the SO or in the contested decision, that all the undertakings represented by their association in Cembureau participated in the infringements referred t o in the international part of the S O . In terminating the proceeding as against some indirect members of Cembureau, the Commission did n o t therefore amend the objections.

470 In order to understand the objections upheld against them in the contested decision, Cembureau and Italcementi did not need to know the reasons which had led the Commission to drop the international objections as against some German and Spanish undertakings. Nor does the Court need to know those reasons in order to review the legality of the contested decision. In any event, the applicants cannot allege that the Commission should have stated reasons in the contested decision for dropping the international objections as against some Spanish and German undertakings so that the Court can ascertain whether or not the Commission infringed the principle of equal treatment: the question whether the undertakings which are the subject of the decision of 23 September 1993 participated in the various infringements to which the contested decision relates is not before the Court. Furthermore, the fact that a trader allegedly in a position comparable to that of an applicant was not found by the Commission to have committed any infringement cannot constitute a ground for setting aside the finding that the applicant committed an infringement (Woodpulp II, cited in paragraph 106 above, paragraph 146). Nor, in those circumstances, is it necessary to grant Italcementi's request that the Commission produce the decision of 23 September 1993.

471 It follows from the whole of the foregoing that the second and fourth pleas, inasmuch as they relate to the abandonment of the international objections as against some undertakings, must also be rejected.

The fifth plea: procedural irregularity by the Commission in dropping some international objections as against Irish Cement

A — Preliminary observations

475 A number of applicants submit first of all that there are gaps in the SO (B). Some of the applicants assert, moreover, that the SO did not set out sufficiently clearly the extent to which they were alleged to have participated in the various infringements (C). Several applicants argue also that certain infringements or aspects of infringements referred to in the contested decision d o n o t correspond to the objections in the SO. Since an assessment of whether there is discrepancy between the objections set out in the SO and the infringements found in the contested decision requires an examination of all the constituent elements of the infringements in question, the Court will carry out that examination when it considers the various substantive pleas and arguments.

476 T h e Court points out that the SO must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct to which the Commission objects. It is only on that basis that the SO can fulfil its function under the Community regulations of giving undertakings and associations of undertakings all the information necessary to enable them properly to defend themselves, before the Commission adopts a final decision (see Woodpulp II, cited at paragraph 106 above, paragraph 4 2 , and Mo och Domsjö v Commission, cited at paragraph 106 above, paragraph 63). The present plea must be considered in the light of those principles.

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CIMENTERIES CBR AND OTHERS V COMMISSION

B — The allegedly incomplete nature of the SO

480 T h e Court points out that the Commission is not entitled t o impose a fine on an undertaking or an association of undertakings without its having previously informed the party concerned, during the administrative procedure, that it intended t o do so. T h e SO must make it possible for the undertaking or association of undertakings concerned to defend itself not only against a finding of an infringement but also against the imposition of a fine (Michelin v Commission, cited above at paragraph 150, paragraph 2 0 , and Opinion of Advocate General Fennelly in Joined Cases C-395/96 P and C-396/96 P CMB and Dafra-Lines v Commission, not yet published in the ECR, paragraph 178). In cases where, after service of the SO, the Commission decides t o impose a fine that has not been mentioned in that SO, it must serve on the undertaking or the association of undertakings concerned a supplement to the SO that observes the procedural rules applicable to any S O .

481 In the present case, the SO contains a single paragraph on the fines, point 9 3 . In it, the Commission refers first of all to the provisions of Article 15(2) of Regulation N o 17, under

II - 651

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-SO/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

which the Commission may impose fines on undertakings or associations of undertakings (first paragraph of point 93 of the SO). The article in question is cited almost word for word. The wording of point 93 of the SO contains no other reference to associations of undertakings. The Commission states that 'the undertakings in question have, intentionally, or at the very least negligently, committed, as from the dates or during the periods indicated in the above outline, the infringements referred to in this Statement of Objections' (second paragraph of point 93 of the SO). Further on, as regards the gravity and duration of the infringements (third paragraph of point 93 of the SO), it refers to 'a number of the producers' and 'the undertakings concerned', but not to associations of undertakings. It also refers to the failure to cooperate on the part of 'the undertakings' during the investigation.

483 T h a t argument cannot be accepted. Although the SO unequivocally complained that the associations of undertakings h a d participated in the Cembureau agreement, the same w a s also true with regard t o the undertakings (see paragraphs 5 0 6 to 5 4 3 below). T h e Commission explained in the second paragraph of point 93 of the SO that the initial conditions (order of 2 5 M a r c h 1996 in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 53) t o enable the imposition of fines were fulfilled with regard t o the undertakings, when it stated that they h a d committed the infringements referred to in the SO 'intentionally or negligently'. O n the other hand, it made no statement of that kind in regard t o the associations of undertakings. Likewise, in the third paragraph of point 9 3 , the Commission, when explaining h o w the a m o u n t of the fines would be determined, referred only t o the conduct of undertakings. If the paraphrase of Article 15(2) of Regulation N o 17 in the first subparagraph of point 93 had sufficed t o inform the associations of undertakings that a fine would be imposed on them, it should also have sufficed for the undertakings. It is thus clear that in its statements in the SO concerning the initial conditions for the imposition of a fine and the determination of the a m o u n t of the fine, the Commission did n o t express its intention t o impose fines also on associations of undertakings.

485 It is also normal practice for the Commission, where it finds that an association of undertakings and its members have participated in the same infringement, to impose a fine either on the undertakings which are members of that association of undertakings or on the association of undertakings. In the latter case, it may take the turnover of the members of the association as a basis for calculating the fine, at least where, by virtue of its internal rules, the association is able to bind its members (CB and Europay v Commission, cited at paragraph 83 above, paragraphs 136 and 137, Case T-29/92 SPO and Others v Commission [1995] ECR II-289, paragraph 385, and Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, paragraph 253). If, for particular reasons, such as those mentioned in recital 65, paragraph 8, of the contested decision, it intends to fine both the association of undertakings and the member undertakings of that association, it must make that intention clear in the SO or in a supplement thereto. In the present case, from that point of view also, point 93 of the SO was not precise enough to enable the associations of undertakings to discern the Commission's intention to impose fines upon them.

486 Furthermore, the Commission has not refuted Oficemen's claim in its application (paragraph 60) that Oficemen had expressly pointed out in its reply to the SO that it assumed that the Commission did not intend to impose fines on the associations of undertakings. Moreover, FIC's reply to the SO (annex 6 to the application) does not contain any argument relating to the fines. Nevertheless, the Commission did not consider it necessary to warn the associations of undertakings, in a supplement to the SO, that they could be subject to a fine.

490 ENCI and V N C submit that the SO indicated in footnote 10 that there would be a separate examination of the CBS agreement. Since there is no chapter on the Netherlands, the SO is incomplete. E N C I and V N C claim that the German version of the SO substantiates their contention, as footnote 10 in that language version expressly states that the CBS agreement is t o be examined in another chapter of the SO yet t o be drawn u p .

491 T h a t argument must be rejected. As the Commission points out, the reason for the absence of any chapter in the SO dealing specifically with the Netherlands, is that no objection w a s raised in respect of the Dutch market. Since E N C I and V N C have n o t shown that an objection specific to the Dutch market w a s raised against them in the contested decision, they cannot claim that the SO w a s incomplete without a 'Netherlands' chapter. T h e absence of such a chapter has n o t impaired their defence during the administrative procedure against the objections upheld in the contested decision. Moreover, the CBS agreement, referred to in footnote 10 of the SO a n d in recital 2 3 , paragraph 2, and recital 5 1 of the contested decision, did n o t itself give rise t o an objection either in the SO or in the contested decision. T h e fact that the Commission reserved the right t o initiate a proceeding concerning the CBS agreement could n o t have undermined ENCI's and VNC's defence in a procedure in which no objection relating t o that CBS agreement was ever expressed. Finally, the applicants cannot base any argument on the German version of the S O . Since the applicants are established in the Netherlands, the Commission sent them the Dutch version of the SO and only that version is therefore authentic as against them.

495 Although the SO contains no explanations as to the Commission's jurisdiction to apply Article 85(1) of the Treaty to undertakings originating in third countries, the Court points out, however, that on reading the SO, the applicants should have been aware of the specific objection which the Commission was raising against them (participation in the Cembureau agreement on non-transhipment to domestic m a r k e t s — SO, points 9 and 6 1 ( a ) — and participation in the ETF and its implementation m e a s u r e s — SO, points 16, 17, 18, 19(d), 20(f), and 61(h); see paragraphs 5 2 4 and 5 2 7 below). By letter dated 16 July 1992, the Commission also informed the t w o applicants that 'the SO had been sent to them because of their participation in the Cembureau Task Force or the ETF, whose object was to prevent supplies of Greek cement in the Community, to absorb Greek cement and to deflect the Greek production surplus outside Europe' (contested decision, recital 5 3 , paragraph 11). Since they were aware of the conduct with which they were charged in the SO, Aker and E U R O C therefore had the opportunity, during the administrative procedure, to submit that they had a special situation resulting from their location outside the Community, and to indicate the conclusions which, in their view, should be d r a w n as to the territorial scope of Article 85(1) of the Treaty.

496 Their argument must therefore be rejected.

4. The alleged failure to analyse the market and to precisely define the relevant markets

497 H o r n o s Ibéricos states that the Commission should have carried out an economic analysis of the market in order to verify whether there was an alternative explanation for the conduct complained of other than that of unlawful collusion (Woodpulp II, cited above at paragraph 106, paragraphs 71 and 72). The Commission either did not make the requisite thorough study of the market, failing thus to observe the minimum requirements as to proof, or never sent the applicant the documents concerning such a study, in which case there was an infringement of the rights of the defence.

501 Italcementi also submits that in the SO the Commission made no distinction between grey and white cement. By stating in the contested decision (recital 11, paragraph 1) that white cement is not in the same market as grey cement, the Commission altered its definition of the market but did n o t serve a fresh statement of objections on the parties.

502 T h a t argument must also be rejected. T h e SO h a d already made a distinction between grey and white cement (point 1). Moreover, it contained separate arguments dealing specifically with agreements and practices on the white cement market (Chapter 2, Section 3 , and Chapter 11). The other agreements and practices mentioned in the SO all concerned the grey cement market. By the stage of the SO, the Commission w a s already of the view that white cement w a s n o t part of the same market as grey cement.

503 It follows from all the foregoing that the present plea is well founded t o the extent that it relates to the Commission's failure t o indicate in the SO that it intended t o impose fines on trade associations (see paragraphs 4 7 8 to 488 above). All the other arguments claiming that the SO is incomplete must be rejected.

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C — The alleged lack of precision in the SO as to the participation of certain applicants in various objections raised in the SO

506 According to the contested decision, at the meeting of Head Delegates held on 14 January 1983 Cembureau and its members reached an agreement on non-transhipment to domestic markets and on the regulation of sales from one country to another (contested decision, recital 4 5 , paragraphs 1 and 9), an agreement referred to by the Commission as the 'Cembureau agreement'. According to the contested decision, the participants in that agreement were Cembureau, Cembureau's members (hereinafter referred to as 'direct members of Cembureau') and certain other undertakings not members of Cembureau but of a national association which was itself a member of Cembureau (hereinafter referred to as 'indirect members of Cembureau'). However, so far as concerns the indirect members of Cembureau, 'for the purposes of [the] Decision, the Commission [took] into consideration only the undertakings which were represented within Cembureau by their association and which, in addition to their membership of the association, [had] clearly manifested their accession to the agreement by participating' in the implementation of the Cembureau agreement (contested decision, recital 65, paragraph 3, first subparagraph). Thus, the indirect members of Cembureau which participated in one or more of the infringements referred to in Articles 3 to 6 of the contested decision were regarded in it as having participated in the Cembureau agreement. Buzzi, which is neither a direct nor indirect member of Cembureau, acceded to the Cembureau agreement through its participation in the Franco-Italian concerted practices referred to in Article 3(1) of the contested decision (contested decision, recital 6 5 , paragraphs 3 and 4). The Commission took the view (in recital 46, paragraph 1, first subparagraph) that the 'whole of the arrangements adopted within the framework of Cembureau and the bilateral and/or multi- lateral meetings and contacts constituted a "single and continuous agreement"'. That single and continuous Cembureau agreement is the subject-matter of Article 1 of the contested decision.

509 The Court will consider, first of all (in section 1.1.), whether Chapters 2 and 10 of the SO charge the abovementioned applicants sufficiently clearly with the participation in the Cembureau agreement found in Article 1 of the contested decision. N e x t (in section 1.2), it will ascertain whether, and to w h a t extent, an undertaking's membership of a national association is a factor which was taken into consideration by the Commission in determining the participation in the infringement found in Article 1 of the contested decision and whether the SO was sufficiently clear in that regard. In section 1.3 the Court will also examine the question whether the SO gives a sufficiently clear explanation of the duration of the Cembureau agreement referred to in Article 1 of the contested decision. Finally, in section 1.4, the appropriate conclusions will be d r a w n from the findings made.

1.1. Participation in the infringement referred to in Article 1 of the contested decision

510 A distinction should be d r a w n between those applicants which are members of Cembureau (1.1.1.) and those which are not members of that association or not regarded as such in the SO (1.1.2.).

1.1.1. Addressees of the SO which are members of Cembureau

511 V N C , Ciments Luxembourgeois, SFIC, Aalborg, BDZ, Unicem, BCA and ATIC are direct members of Cembureau.

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515 In those circumstances, the abovementioned eight applicants, direct members of Cembureau, cannot claim that the SO does not identify them as being party to the Cembureau agreement.

1.1.2. Addressees which are not direct members of Cembureau or regarded in the SO as not being direct members

516The other applicants which have submitted the line of argument under consideration are either not direct members of Cembureau (CBR, ENCI, Dyckerhoff, Vicat, Ciments Français, Heidelberger, Lafarge, Buzzi, Valenciana, Rugby, Asland, Castle, Uniland, Cimpor, SECIL, Hornos Ibéricos and Blue Circle) or are direct members but not regarded as such in the SO (Aker and EUROC). They claim that the third paragraph of point 61 of the SO, which states that 'Cembureau and its members adopted' the Cembureau agreement, shows that the SO was not sufficiently precise in regard to them so far as concerns their participation in that agreement.

517Separate analysis is required of the position of undertakings which, according to the SO and the contested decision, participated in bilateral or multilateral agreements and concerted practices (Chapter 10, point 61 of the SO, and Articles 3 and 4 of the contested decision), namely CBR, Dyckerhoff, Vicat, Ciments Français, Heidelberger, Lafarge, Buzzi, Rugby, Asland, Castle, Uniland, Cimpor, SECIL, Aker, EUROC and Blue Circle (see 1.1.2.1 below); that of

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

10. Implementation of the "Cembureau agreement or Principle of not transhipping to internal European markets": France-Italy

11. Implementation of the "Cembureau agreement or Principle of not transhipping to internal European markets": Spain-Portugal

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CIMENTERIES CBR AND OTHERS V' COMMISSION

12. Implementation of the "Cembureau agreement or Principle of not transhipping to internal European markets": France-Germany

Section 2 — "Cembureau Task Force or European Task Force"

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JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

522 T h e first and second paragraphs of point 61 of the SO state as follows:

'This involves a set of agreements and/or concerted practices resulting originally from and conditioned by the laying down of and compliance with the home market rule and, subsequently, from bilateral or multilateral arrangements supplementing such rule or under- pinning its implementation.

All the documents obtained during the investigation show that the European cement producers adopted and accepted the "home market rule" on the basis of mutual cooperation enabling the sector t o be organised.'

523 It thus appears that, even though the SO states in the third paragraph of point 61 (Chapter 10) that 'Cembureau and its members adopted the "Cembureau agreement or Cembureau principle of n o t transhipping t o internal European m a r k e t s ' " , it also alleges sufficiently clearly that the addressees of the SO which are not direct members of Cembureau acceded t o the Cembureau agreement, accusing them of participating in one or more bilateral and multilateral agreements and/or concerted practices.

1.1.2.2. Addressees of the SO, not direct members of Cembureau, which are alleged to have participated in the activities of the ECEC

528 The fifth paragraph of point 66 of the 'Legal Assessment' of the SO states:

'The agreement on the setting-up of the ECEC and the agreements and/or concerted practices on exports to third countries constitute infringements of Article 85(1) committed by the ECMEC and by the members of the ECEC as from 1980 at least ...'

529 Among the members of the ECEC mentioned by name in point 25 of the SO are ENCI, Dykerhoff and Castle, which are not direct members of Cembureau. In their applications they complain that the SO lacks precision so far as concerns their participation in the Cembureau agreement.

530 ENCI rightly observes that the drafting of the fifth paragraph of point 66 of the Dutch version of the SO which was sent to it, and which is the only one which is authentic as against it, differs from the other language versions of the SO.

531 T h a t passage of the SO is in fact worded as follows:

'In order t o assess the activities of the ECEC, it must be seen in context. As seen in points 9 and [61], Cembureau adopted the " C e m b u r e a u agreement or principle of n o t transhipping t o internal European m a r k e t s " . In order t o ensure that this was complied with, means had to be found of channelling Cembureau members' surplus output t o other countries and ensuring that the surpluses did not end u p on the European markets ... Consequently, the agreement on the setting-up of the ECEC and the agreements and/or practices relating t o the commercial policy t o be pursued on exports to third countries cannot be viewed in isolation, but must be seen as inseparable from the agreement on non-encroachment on respective home markets.'

536 It follows that, on reading the SO, the members of the ECEC, including E N C I , Dykerhoff and Castle, could understand that their participation in the ECEC's activities was regarded as a sign of their having acceded to the Cembureau agreement.

1.1.2.3. Addressees of the SO, n o t direct members of Cembureau, which are alleged t o have participated in the activities of the EPC

537 Point 67 of Chapter 12 of the SO relating to the 'legal assessment' of the activities of the EPC accuses the members of the EPC of having committed an infringement of Article 85(1) of the Treaty by creating that committee and by participating in agreements and/or concerted practices concerning cooperation on exports to third countries. Among the members of the EPC mentioned by name in point 27 of 'The Facts' of the SO are Ciments Français, Lafarge Valenciana, Hornos Ibéricos and Blue Circle, five undertakings which are not direct members of

'The cooperation between the members involving market sharing, price fixing and the exchange of information, in order to channel surplus output to third countries, is merely a consequence and a means of controlling the application of the home market rule: the home market rule and cooperation on exports are, thus, closely linked.

[The agreement on the establishment of the EPC has] the object of restricting, through the implementation of the home market rule, the scope for the members of [the EPC] to sell within the common market.'

540 Since the Commission thus considered that the cooperation between the members of the EPC was a means of controlling the implementation of the home market rule, it was necessarily accusing them of having acceded to that rule.

541 Accordingly, on reading the SO, the members of the EPC, including Ciments Français, Lafarge, Valenciana, Hornos Ibéricos and Blue Circle, could understand that their participation in the activities of the EPC was an indication of their having acceded to the Cembureau agreement.

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JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1.2. Membership of a national association that was a direct member of Cembureau as a criterion for attributing responsibility for the infringement referred to in Article 1 of the contested decision

544 CBR, Vicat, Rugby and Castle submit that the Commission did not inform them during the administrative procedure that it w a s going to take an undertaking's membership of a national association that was a direct member of Cembureau as a ground for concluding that that undertaking had acceded to the infringement referred to in Article 1 of the contested decision.

545 All the indirect members of Cembureau which have claimed in their applications that the SO w a s n o t sufficiently precise to enable them to understand that they were accused of participating in the Cembureau agreement (namely CBR, ENCI, Dyckerhoff, Vicat, Ciments Français, Heidelberger, Lafarge, Valenciana, Rugby, Asland, Castle, Umland, Cimpor, SECIL, H o r n o s Ibéricos and Blue Circle) also put forward the more restricted argument alleging that the SO was insufficiently precise as to the inferences which the Commission was going to draw, in the contested decision, from an addressee's membership of a direct member of Cembureau.

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546 In the contested decision (recital 6 5 , paragraph 3 , first subparagraph), the Commission states:

'Buzzi was not, either directly or indirectly, a member of Cembureau. It is therefore the start of the concerted practice in which Buzzi participated which must be regarded as providing evidence of its participation in the Cembureau agreement or principle of not transhipping to home markets.'

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

553 The addressees of the SO in question should have been informed during the administrative procedure that that matter w a s being taken into consideration. Observance of the rights of the defence requires that the undertakings and associations of undertakings concerned be afforded the opportunity, from the stage of the administrative procedure, to make k n o w n their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission (Hoffman-La Roche v Commission, cited in paragraph 106 above, paragraph 1 1 , Woodpulp II, cited at paragraph 106 above, paragraphs 40 to 5 3 , and CB and Europay v Commission, cited at paragraph 83 above, paragraph 48). The Commission, which must state in the SO, as an essential factor, the duration of the infringement found by it (Musique Diffusion Française, cited at paragraph 439 above, paragraph 15), must set out in the SO all the relevant information as to the starting date of the infringement in question.

554 It is therefore necessary to examine whether the SO set out sufficiently clearly that membership of a national association that was a direct member of Cembureau was relevant in determining the date on which the indirect members of Cembureau started to participate in the infringement constituted by the Cembureau agreement.

555 Although the indirect members of Cembureau knew that they were members of a national association which was itself a direct member of Cembureau, it must be asked whether they could reasonably have deduced from the SO the conclusions which the Commission intended to d r a w from their membership of a direct member of Cembureau (judgments cited at paragraph 323 above: T-11/89 Shell v Commission, paragraph 56, and T-13/89 ICI v Commission, paragraph 35).

560 Since 'accession' to an agreement takes place ex nunc, the reference, during the administrative procedure, to the 'accession' of non-members of Cembureau confirms that, at that stage, the Commission did not intend to take Cembureau's indirect members' membership of a national association as a ground for holding them liable, from the date the Cembureau agreement was adopted, for the infringement constituted by that agreement.

561 Secondly, in point 59 of the 'Legal Assessment' of the SO, the Commission stated that 'all these arrangements adopted within the framework of Cembureau and the bilateral and multilateral meetings and contacts constituted a single and continuous "agreement", as from the dates indicated below'. If the Commission then considered that, because they had been represented by their national associations at the Head Delegates meeting on 14 January 1983, the participation of indirect members of Cembureau in a measure implementing the Cembureau agreement was a manifestation of their participation in that agreement as from the date on which it had been

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

concluded, it would not have referred in the SO to commencement 'dates' for their participation in the single and continuous Cembureau agreement, but to 14 January 1983, as it did in recital 65, paragraph 3, first subparagraph, of the contested decision (see paragraph 546 above).

564 T h a t finding cannot, however, lead to the annulment of Article 1 of the contested decision in its entirety as against all the indirect members of Cembureau to w h o m the contested decision was addressed. As the fact that had not been disclosed during the administrative procedure led the Commission to find in the contested decision that the indirect members of Cembureau that had taken part in one or more of the implementation measures referred to in Articles 3 to 6 of the contested decision had participated in the Cembureau agreement with effect from 14 January 1983 (see paragraphs 551 and 552 above), the discrepancy between the SO and the contested decision affected the defence of Cembureau's indirect members only to the extent that the contested decision finds that they began t o participate in the infringement referred to in Article 1 of the contested decision before the date on which they had first implemented the Cembureau agreement.

565 T h a t conclusion is therefore of no consequence to indirect members of Cembureau which, according to the SO and the contested decision, began to participate in an infringement classified as a measure implementing the Cembureau agreement on or before the date stated in Article 1 of the contested decision to be the starting date of their participation in the Cembureau agreement. Thus, Dykerhoff, Ciments Français, Heidelberger and Lafarge were identified in the SO (point 61(d)) and in the contested decision (recital 50 and Article 3(3)(a)) as having participated in the Franco-German agreements and concerted practices which allegedly commenced on 2 3 June 1982. Accordingly, even though the Commission attached n o importance in the contested decision to those undertakings' membership of SFIC or BDZ, it

566 On the other hand, for CBR, ENCI, Vicat, Rugby, Asland, Castle and Uniland, the Commission would have taken a different starting date for their participation in the infringement referred to in Article 1 of the contested decision, if it had not relied on their membership of a national association that was a direct member of Cembureau and had taken the view that they had acceded to the Cembureau agreement solely by virtue of their participation in a measure implementing the Cembureau agreement. Since all the implementing measures in which CBR, ENCI, Vicat, Rugby and Castle allegedly participated took place after 14 January 1983, it was only by relying on their membership of a national association which was a direct member of Cembureau that the Commission could have taken the view that those undertakings had participated in the infringement referred to in Article 1 of the contested decision as from that date. The Commission also took 1 January 1986 as the starting date for the participation of Asland and Uniland in that infringement by virtue of their participation in Oficemen, although the starting date of their alleged implementing measures is alleged to be after that date.

1.3. Duration of participation in the infringement referred to in Article 1 of the contested decision

569 FIC, Ciments Français, Aalborg, Unicem and Uniland (T-58/95) complain in their applications about the SO's lack of precision with regard to the starting date of their participation in the Cembureau agreement. Aker and E U R O C criticise the fact that, unlike the SO, the contested decision (recital 6 5 , paragraphs 3(a), 4 and 9(a)) took the view that they had participated directly in the adoption of the Cembureau agreement from the very beginning.

570 Those arguments, in so far as they are raised by indirect members of Cembureau, are indissociable from the argument that the Commission did not state sufficiently clearly in the SO that it was going to take the indirect members' membership of a national association as a ground for concluding that they had participated in the Cembureau agreement referred to in Article 1 of the contested decision from a date prior to the date on which they were first alleged to have implemented that agreement. T h e argument of Ciments Français must therefore be rejected (see paragraph 565 above), whereas that of Uniland will be upheld (see paragraphs 566 to 568 above).

571 It is still necessary to examine whether FIC, Aalborg, Unicem, Aker and E U R O C could, on reading the SO, have realised that the Commission was accusing them of having participated in the Cembureau agreement as from the commencement date fixed in Article 1 or the contested decision.

574 As regards the end of the infringement found in Article 1 of the contested decision, Ciments Français, Lafarge, Uniland, Italcementi and H o r n o s Ibéricos state that recital 65, paragraph 4, of that decision holds that it ended on 26 March 1993, that is to say, after the date on which the SO was notified. The Commission thus unlawfully extended the duration of the infringement without giving the undertakings concerned an opportunity to submit their views on that matter. Unicem and AGCI complain that no final termination date was set out in the SO for the Cembureau agreement. Heracles claims that the SO does not indicate whether or not, in the Commission's view, the Cembureau agreement had ceased to be in force when the SO was drawn up.

575 The Court points out that Article 1 of the contested decision does not state when the infringement ended. In recital 6 5 , paragraph 4, of the contested decision the Commission indicates that it has 'no certainty that the infringement ever really ceased'. The Commission took 26 March 1993 as the end of the infringement only for the purpose of calculating the fines.

576 Even at the stage of the SO, it had refrained from indicating when most of the infringements, including the Cembureau agreement, had ended. It considered at point 93 of the SO that: '... almost all of the agreements, decisions and concerted practices are continuing'. This statement thus referred to infringements in respect of which the SO did not determine a precise end date. In those circumstances, the addressees of the SO were able to understand that the Commission intended to find in the contested decision, in particular in regard to the Cembureau agreement, that the infringement had continued beyond the date of the SO. Accordingly, the rights of defence of the undertakings and associations concerned were not infringed.

580 T h e Court points out that, in the S O , the Commission took the view that the infringements for which it h a d n o t indicated a precise end date were continuing (see paragraph 5 7 6 above). Such was the case, in particular, for Heracles' participation in the Cembureau agreement. Moreover, the SO raised objections against Heracles relating t o its participation in measures implementing the Cembureau agreement well beyond 1986 (participation in the framework of the ETF in the carrot actions referred t o in points 20 and 61(h) and (v) of the SO; participation in the activities of the EPC referred t o in points 2 7 and 67 of the SO). In those circumstances, the applicant cannot claim that it w a s misled by point 3 7 of the SO.

1.4. Conclusions

581 T h e arguments p u t forward by CBR, ENCI, Vicat, Rugby, Asland, Castle and Uniland t o the effect that the SO is imprecise in regard t o their participation in the Cembureau agreement justify the annulment in part of Article 1 of the contestéd decision (see paragraph 568 above). The other arguments must be rejected.

2. Precision of the SO as regards applicants' participation in the exchanges of information on prices and the duration of that infringement

582 VNC (T-32/95), Ciments Luxembourgeois (T-34/95), SFIC (T-36/95), Aalborg (T-44/95), BDZ (T-48/95), Unicem (T-50/95), BCA (T-54/95) and ATIC (T-63/95) complain that the Commission did not indicate sufficiently clearly in the SO whether they were held responsible for the exchanges of information on prices.

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587 SECIL (T-62/95) states that the terms of the SO did not enable it to discern the starting date of the Spanish-Portuguese agreement referred to in Article 3(2) of the contested decision or the date on which the Portuguese agreements and concerted practices came to an end.

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JUDGMENT OF 15. 3. 2000 - JOINED CASES T-2S/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

588 The Court points out that in point 61(c) of the SO, which deals with the 'Spanish-Portuguese agreement', the Commission took the view that:

'The agreements entered into between the association of Spanish producers Oficemen, assisted by the member producers Valenciana, Asland, Cosmos, [Hornos Ibéricos] and Valderrivas, and the Portuguese producers Cimpor and SECIL ... not to export to their respective traditional sales territories constitute, as from 1 January 1986, restrictions of cement sales and market sharing within the meaning of Article 85(l)(c).'

589 The beginning of the infringement referred to in Article 3(2) of the contested decision was thus clearly set out in the SO.

593 Moreover, in point 61(d) (third paragraph) of the SO, it had been pointed out:

'The exchanges of statistical data between the [SFIC] and the [BDZ] constitute a concerted practice restricting competition within the meaning of Article 85(1) ... Such exchanges of

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statistical information must be seen in conjunction with the agreements and/or practices on sharing the [Franco-German] market... and are designed to allow the two associations concerned to control the target quantities allowed for export and their destination by Land.'

4. Precision of the SO as regards applicants' participation in the setting-up of the ETF and in the measures adopted in the framework thereof, referred to in Article 4 of the contested decision, and as regards the duration of those infringements

597 T h a t argument must also be rejected. The applicants concerned were identified in the fourth paragraph of point 61(h)(i) of the 'Legal Assessment' of the SO as being parties to the agreement to set up Interciment.

598 Dyckerhoff, SFIC, Heidelberger, Lafarge, Aalborg, BDZ, Unicem, Asland, Uniland and Blue Circle also claim that the SO did not allege that they had participated in concerted practices designed to cause Calcestruzzi to cease being a customer of the Greek producers, and of Titan in particular. They submit that they were therefore unable to defend themselves against the objection referred to in Article 4(3)(a) of the contested decision. Unicem claims that it did not

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JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95,T-42/95TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

have an opportunity of defending itself against the objection that it participated in the infringement referred to in Article 4(3)(b) of the contested decision relating to the agreement between Unicem, Italcementi and Cementir which aimed to prevent imports of Greek cement by Calcestruzzi.

599 It should be noted that in point 19(d) of T h e Facts' of the SO, entitled 'Measures to defend national markets: Italy', the Commission observes in the third paragraph:

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603 Titan (T-64/95) submits that the SO did not state clearly whether it was one of the European cement producers accused of having engaged in unlawful activities directed against the Greek producers or was, rather, a victim of those unlawful activities.

604 The Court points out that the SO did not accuse Titan at all of having been party to the agreement setting up the ETF (first paragraph of point 61 (h)(i) of the SO) and to the measures to defend the Italian market (point 61(h)(iv) of the SO).

605 However, point 61(h)(v) of the 'Legal Assessment' of the SO clearly states:

'All the contracts listed in point 20 [some of which concerned Titan] are agreements prohibited by Article 85(1). As may be seen in points 16 to 20, such contracts form part of the "carrot actions" adopted by the Cembureau Task Force in order to deflect the Greek production surplus, and the clear condition governing the conclusion of the contracts was that the Greek producers must cease their direct supplies in Europe.'

609 Blue Circle was thus in a position t o understand that, in the framework of the ETĘ the Commission was accusing it of participating in the carrot actions referred t o in Article 4(4)(a) and (b) of the contested decision.

610 Unicem argues that its rights of defence were infringed because the SO made n o mention of the date on which the infringements relating t o the ETF ended.

611 It adds that the SO did not even mention a date marking the beginning of the infringements relating to the setting-up of Interciment (contested decision, Article 4(2)) and the measures to defend the Italian market (contested decision, Article 4(3)(a) and (b)).

612 It further argues t h a t its rights of defence were infringed inasmuch as the contested decision alleged t h a t it participated in Interciment until 2 6 M a r c h 1993, the date on which Intercimenti was w o u n d up, that is t o say, a date subsequent to the dispatch of the SO.

613 The Court points out that, in the SO (point 61(h)), Unicem was accused of having participated in 'agreements and ... practices entered into within the " C e m b u r e a u Task Force or European Task F o r c e " ' from 1986 onwards. Unicem was therefore able t o defend itself properly against the objections relating t o its participation in the setting-up of Interciment (contested decision, Article 4(2)) a n d t o the measures t o defend the Italian m a r k e t (contested decision, Article 4(3)(a) and (b)) as from the beginning of 1986.

614 Its arguments that its rights of defence were infringed because the SO did n o t indicate the date marking the end of the various infringements referred t o in Article 4 of the contested decision, and that the Commission held the infringement referred t o in Article 4(2) t o have ended on a date after t h a t on which the SO was sent, must be rejected for the reasons set out in paragraph 576 above.

617 ENCI states, however, that in the SO which it received the Commission merely stated that the agreements and/or concerted practices within the ECEC constituted an infringement of Article 85(1) of the Treaty by the E C M E C and its members. ENCI claims it was never a member of the E C M E C . It submits that, in reply to a request for details concerning the objections raised specifically against it in the SO, the Commission expressly stated that ENCI would be held responsible only for those objections in respect of which it had been specifically named (letter of 12 February 1992, annex 15 to the application). Likewise, in the application "for interim relief (Case T-14/92 R, cited above), the Commission confirmed that ENCI had been held responsible only for objections in respect of which it had been specifically named in the SO (Commission's defence in Case T-14/92 R, paragraph 24, annex 17 to the application). ENCI adds that, during the hearings, it stated on several occasions that it had based its case on the belief that it was held responsible only for those objections in respect of which it had been specifically named. At those hearings, none of the Commission's representatives had indicated to it that it had misunderstood the SO and the Commission's comments in that regard.

618 That argument must be rejected for the reasons set out in paragraphs 530 to 534 above.

619 ENCI also claims that it is practically impossible to identify the specific accusations contained in the SO or the person against w h o m they are levelled. The contested decision is also similarly imprecise.

623 As regards the concerted practice in the framework of the EPC, referred to in Article 6 of the contested decision, Valenciana (T-52/95) and Blue Circle (T-88/95) claim that the imprecise nature of the SO prevented them from realising that they were alleged t o have participated in that practice.

624 T h e Court points out that point 6 7 of the SO, in the 'Legal Assessment' of the activities of the EPC, finds that the members of the EPC infringed Article 85(1) of the Treaty by setting up the EPC and by participating in agreements and/or concerted practices concerning cooperation on exports t o third countries.

625 Since Valenciana and Blue Circle were specifically named as members of the EPC in point 2 7 of 'The Facts' of the SO, they cannot complain that the SO is imprecise as regards the objection that they participated in the infringement referred t o in Article 6 of the contested decision.

626 It is apparent from all the foregoing that the arguments alleging that the SO is imprecise must be rejected, except in so far as concerns CBR, ENCI, Vicat, Rugby, Asland, Castle and Uniland, whose rights of defence have been infringed because the SO did n o t allow them t o realise that the Commission w a s going t o take a date prior t o the date of 'their' measure implementing the Cembureau agreement as the starting date of their participation in the infringement referred t o in Article 1 of the contested decision (see paragraphs 566 t o 568 above).

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630 The language rules laid down in Article 3(1) apply only to documents sent by the institutions to specific addressees (Tréfilunion v Commission, cited at paragraph 2 2 3 above, paragraph 21).

631 T h e Commission is not required to provide a translation of annexes t o the SO (Tréfilunion v Commission, cited at paragraph 2 2 3 above, paragraph 21). T h e documents in question are not 'documents' within the meaning of Article 3 of Regulation N o 1 : they do not emanate from the Commission, but are evidence on which the Commission relies.

632 Consequently, the argument that the Commission infringed Article 3 of Regulation N o 1 by not providing the addressees of the SO with a translation of the supporting evidence must be rejected.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

633 N o r can the documents which the Commission quotes verbatim in the SO in support of its objections be regarded as emanating from it, even though the SO is a Commission 'document' within the meaning of Article 3 of Regulation N o 1 (Tréfilunion v Commission, cited at paragraph 223 above, paragraph 21). The passages from those documents cited in the SO do not emanate from the Commission but from cement producers or their trade associations. Moreover, any translation which the Commission might possibly make of a document emanating from an undertaking or an association of undertakings could never be regarded as an authentic version constituting good evidence.

636 As regards the failure to translate the minutes of the hearings, the Court points out that under Article 9(4) of Regulation N o 99/63 the essential content of the statements m a d e by each person heard is to be recorded in minutes which are to be read and approved by him. The only purpose of the minutes of hearings is to produce a written record of the oral submissions of the various parties in the language used by them to enable those parties to check that their o w n statements have been recorded correctly (see, to that effect, Case 48/69 ICI v Commission [1972] ECR 619, hereinafter 'Case 48/69 ICI v Commission', paragraph 29). They are not therefore documents within the meaning of Article 3 of Regulation N o 1 that emanate from the Commission. In those circumstances, the Court must reject the argument put forward by Dyckerhoff, Aalborg, Valenciana, Oficemen, Cimpor and SECIL to the effect that the Commission infringed Article 3 of Regulation N o 1 by failing to provide a translation of the minutes of the hearings. Furthermore, at the hearings the applicants concerned were able to hear a simultaneous interpretation of the various statements made. They cannot therefore complain that their rights of defence were infringed.

637 Aalborg submits that, where the Commission translates a passage from a document in the SO, it must make available to the addressees of the SO a translation of the whole document in order to allow the context of the extract to be fully understood. It refers in this connection to the

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641 Cimpor, SECIL and ATIC complain that the List (see paragraph 5 above) was not drawn up in Portuguese and was sent to them in French. They claim that this procedural document was fundamental to the exercise of their rights of defence. Cimpor and SECIL also claim that the Commission's letter of 17 February 1992, which extended the time-limit for replying to the SO until 23 March 1992 or until 2 7 March 1992 for those addressees of the SO which had undertaken to lodge 20 copies of the reply, was also in French. SECIL adds that the invitation to the hearings, dated 5 February 1993, was not in Portuguese either. Dyckerhoff complains that the Commission sent it the list in French rather than in German.

642 The Court finds that there was an infringement of Article 3 of Regulation N o 1 so far as concerns those documents. They emanate From the Commission and should have been drawn up in the language of the Member State in which the addressee of the SO was established.

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

643 However, where an institution sends a person within the jurisdiction of a M e m b e r State a document which is not d r a w n up in the language of that State, the irregularity, however regrettable, vitiates the procedure only if it gives rise to harmful consequences for that person in the administrative procedure (Case 41/69 Cbemiefarma v Commission [1970] ECR 6 6 1 , paragraph 52; Case T-77/92 Parker Pen v Commission [1994] ECR II-549, paragraph 74).

646 It follows from all the foregoing that the seventh plea must be rejected in its entirety.

The eighth plea: infringement of the rights of the defence resulting from mistranslation and misquotation of certain documents

647 Castle (T-56/95), Aker (T-70/95) and EUROC (T-71/95) submit that the Commission infringed their rights by mistranslating or misquoting certain documents in the SO.

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648 In the first place, the statement by the chairman of Heracles on 2 5 June 1986 (SO, point 9; contested decision, recital 18, paragraph 5; documents 33.126/19875 to 19877) and the handwritten Italcementi note, on the Executive Committee meeting held on 14 April 1986 (SO, point 7, in fine; contested decision, recital 17, paragraph 9; document 33.126/3185), were not translated correctly. In particular, the statement of the chairman of Heracles, in its original version and contrary to the Commission's translation, does not refer to 'negotiations' or to the 'United Kingdom cartel'. So far as concerns Italcementi's note, the English version of the SO translated the extract 'trovare delle regole del gioco tra di noi per evitare concorrenza non corretta' as 'rules must be established between us to prevent improper competition'. However, the proper translation is 'to find rules of the game between us to prevent improper competition'.

651 The Court points out that documents 33.126/19007 and 19008 were in the Box (see paragraph 95 above). The applicants thus had the original versions of the abovementioned documents at their disposal during the administrative procedure, which should have enabled them to note the misquotation by the time the administrative procedure was under way and to put forward their arguments in that respect already at that stage. In any case, the misquotation was corrected in the contested decision. At recital 26, paragraph 10, of the contested decision, the Commission, referring to the two documents in question, observes that at the Head Delegates meeting in Brussels of 6 November 1986 it was decided that 'no Community company would subscribe to the capital of Interciment'. T h e applicants claim that it was after their statements at the hearings (application in Case T-56/95, point 5.5.3, and applications in Cases T-70/95 and T-71/95, point 4.5.3) that the Commission was forced to concede that it had made a mistake. The argument put forward by Castle, Aker and E U R O C that their rights of defence were infringed must clearly be rejected, since it was precisely the effective exercise of their rights of defence which led the Commission to correct the mistake made in the SO (see Joined Cases 40/73 to 4 8 / 7 3 , 50/73, 54/73, 55/73, 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v

II - 687

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

654 During the administrative procedure which led to the present proceedings, the addressees of the SO were given an initial period of t w o months in which to prepare their reply. T h a t period was extended on t w o occasions by one m o n t h , making a total period of four months, from the end of N o v e m b e r 1991 to the end of M a r c h 1992. In view of all the particular circumstances of the cases in question, that period of four months was sufficient. As to the argument that only the initial t w o - m o n t h period was relevant to the assessment of the present plea, the Court held (paragraphs 94 to 99 of the judgment) in Suiker Unie v Commission (cited in paragraph 651 above), which was also a complex case, that a period of two months was reasonable. Moreover, as the Commission points out, the period initially granted was n o t as excessively short as the applicants concerned argue, if it is compared with the two-month period provided for in the fifth paragraph of Article 173 of the Treaty for bringing an action for annulment. Finally, even though the applicants concerned prepared a reply to the SO on the assumption that they had a period of only t w o months, they ultimately enjoyed, after extensions, two additional months in which to amend and elaborate their replies.

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655 Heidelberger'sargument that it allegedly dispensed with translations of several documents must also be dismissed. Since it does not identify the documents drawn up in a language other than German which could have been useful in its defence, it has not shown how its rights of defence were affected by the setting of the time-limit for replying to the SO.

659 ENCI (T-31/95), V N C (T-32/95), SFIC (T-36/95), Vicat (T-37/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), Valenciana (T-52/95), Asland

II - 6 8 9

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

(T-55/95), Castle (T-56/95), Uniland (T-58/95), Oficemen (T-59/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL (T-62/95), ATIC (T-63/95), Aker (T-70/95) and EUROC (T-71/95) consider that the organisation of the hearings during the administrative procedure infringed their rights of defence. Lafarge and Valenciana also submit that the Commission's conduct was contrary to Article 19(1) of Regulation No 17. Valenciana, Oficemen, Aker and EUROC claim that Article 7(1) of Regulation No 99/63 was also infringed.

1. T h e Hearing Officer's programme for the hearings

662 SFIC, Heidelberger, Lafarge, Valenciana and Castle criticise the fact that the hearings were organised according t o a programme imposed unilaterally by the Hearing Officer. In their view, the Commission's approach prevented them from freely organising their defence.

663 That argument must be rejected. The hearings were organised following the order in which the various objections are set forth in the SO. Observing that order makes it easier, in principle, for interested parties to prepare their defence. In any event, the mere fact that the Commission imposes a programme for the hearings does not of itself constitute an infringement of the rights of the defence. There can be such an infringement only where the applicants concerned prove that the organisation of the hearings prevented them from attending the hearings relating to the

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objections raised against them or from putting forward orally their arguments against such objections. It is those questions which will be examined at paragraphs 664 to 701 below.

665 The applicants referred to in the preceding paragraph were able to attend the hearings relating to the chapters of the SO sent to them. They were therefore all able to attend the hearings on the international agreements and concerted practices. However, only Cembureau and the under- takings and associations of undertakings which were considered in the SO to be direct members of Cembureau were able to make oral submissions during the hearings held from 3 to 5 March 1993, which dealt in particular with the conclusion of the Cembureau agreement. During the hearings held from 5 to 18 March 1993, Ciments Français, Heidelberger, Lafarge, Asland, Uniland, which are not direct members of Cembureau, and Aker and E U R O C which, in the SO, were not considered to be direct members of Cembureau (see paragraph 516 above), were thus allowed to present oral argument only in the hearings dealing with the various measures implementing the Cembureau agreement in which they were alleged to have participated.

668 For the reasons set out in paragraphs 516 to 542 above, it must be held that Heidelberger was able to understand, on reading the SO, that the Commission was accusing it of participating in the Cembureau agreement. Moreover, the allegation that Heidelberger had participated in the Franco-German agreement and in measures adopted in the framework of the ETF was set out sufficiently clearly in the SO (see paragraphs 591 to 602 above) and they were the only implementing measures alleged against it in the contested decision. The p r o g r a m m e for the hearings which reached it about one year after its reply to the SO was lodged, a reply which dealt with all those objections, cannot therefore have misled it in any way as to the objections alleged against it. In any event, Heidelberger could have commented orally on 8 M a r c h 1993, regarding its alleged participation in the Franco-German agreement, and on 11 and 12 M a r c h 1993 regarding its alleged participation in measures taken in the ETF. At those hearings, it could have developed its arguments relating to the existence of the Cembureau agreement and its participation in it. Its argument must therefore be rejected.

669 Heidelberger also complains that it was not granted the right to speak at the plenary session of 1 and 2 M a r c h 1993 — a session which it does not deny having attended — which dealt with the cement market.

670 T h a t argument also must be rejected. There was nothing to prevent Heidelberger from challenging the Commission's analysis of the cement market in Chapter 1 of the SO during the hearings at which it was allowed to submit observations, in particular, at those of 8, 11 and 12 M a r c h 1 9 9 3 .

674 The Court notes that the speaking time allotted to the various undertakings and associations of undertakings at the hearings depended on the number of objections raised against them in the SO. Lafarge was allotted 30 minutes' speaking time in respect of each of the measures implementing the Cembureau agreement with which it was charged in the contested decision. In those circumstances, it cannot rely on the argument that there was a discrepancy between the time it was allotted at the hearings and the overall liability ultimately attributed to it. N o r does it adduce any specific evidence to show that the speaking time allotted was insufficient. It has not proved that the alleged lack of speaking time prevented it from formulating or developing an argument which might have led to a different outcome to the administrative procedure. Lafarge's argument cannot therefore be upheld.

3. Alleged irregularities at the hearings concerning the national objections

675 SFIC, Vicat, Ciments Français, Lafarge, Valenciana, Castle, Uniland, Oficemen, ATIC, Aker and E U R O C complain that they were not able to attend the hearings on the national agreements and concerted practices in the other Member States concerned.

676 It is common ground that participation in the hearings on the national agreements and concerted practices was restricted. It was restricted to the undertakings and the association of the Member State in question and thus to the undertakings and the association to which the relevant national chapters of the SO had been sent.

677 N o n e the less, the fact that applicants were not able to attend hearings concerning national agreements and concerted practices other than those in the Member State on whose territory they were established could not have been detrimental to their defence. It should be borne in mind that, notwithstanding the fact that point 93(b) of the SO states that the national agreements and concerted practices and the international agreements and concerted practices formed an inseparable whole, the Cembureau agreement and its implementing measures at international level do not depend at all on the existence of the national agreements and concerted practices (see paragraphs 110 to 120 above). Furthermore, the national objections

681 Lafarge complains that it had to be satisfied with 70 minutes' speaking time in making its submissions on the French agreements and concerted practices. Its argument is irrelevant, since the objection relating to the French agreements and concerted practices w a s not upheld in the contested decision.

4. Other irregularities during the hearings

682 Irish Cement, Cimpor, SECIL and ATIC claim that they should have been given an opportunity to participate in all the hearings. In their view, the right to be heard implies a right to hear the cases of others. However, in the absence of any evidence that in the contested decision the Commission relied on information obtained in the course of hearings in which those parties were not able to participate, and in the absence of any evidence to show that evidence exculpating those applicants might have been disclosed at those hearings, that argument must be rejected.

683 SFIC submits that the Commission relied on 'self-incriminating' replies given during the hearings in order t o find that there had been an infringement involving exchanges of

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685 The Court points out that at that hearing M r Guerrin stated as follows: '... the Commission ... is not able to follow a certain number of observations made [by the participants at the hearing].' However, although the Commission is required to give the addressees of an SO an opportunity to express a view and to defend themselves with regard to the objections raised against them, it is not obliged to accept all the arguments put forward. Accordingly, neither ENCI nor V N C can claim that their rights of defence were infringed by M r Guerrin's statement.

686 Lafarge submits that at the hearings it was not allowed to explain its competitive strategy otherwise than in regard to the objections raised against it, even though it had expressly requested permission to do so.

687 The Court points out that Lafarge was free to organise as it wished the speaking time allotted to it. It follows that the argument examined must also be rejected.

688 Finally, Aker and E U R O C complain that at the hearings they and Castle, their United Kingdom subsidiary, were not treated by the Commission as separate entities.

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

694 Valenciana has adduced no evidence that the period of 2 2 days was not sufficient to prepare for the hearings. Moreover, as is apparent from its reply of 11 December 1997 to a written question put by the Court of First Instance, it did not even request the Commission, before the hearings, to postpone them on the ground that it did not have sufficient time to prepare its oral presentation.

695 It follows that the second part of the 10th plea must be rejected.

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D — Third part: infringement of Article 9 of Regulation No 99/63

696 Lafarge (T-43/95) submits that the Commission infringed Article 9(3) of Regulation No 99/63 by refusing it the right to be heard separately on the objections relating to the Franco-German market. Aalborg (T-44/95) complains that, contrary to the same provision, the Commission did not allow it a separate hearing.

702 Dyckerhoff (T-35/95) maintains that the contested decision fails to observe the principle that the Commission is under an obligation to investigate ex officio. First, the Commission railed to examine the question of Greek State aid, despite the fact that it was the only reason which led Dyckerhoff to participate in the European cement producers' meetings that were considered in the contested decision. Second, it did not properly examine the files on the discussions on the basing point system, despite the fact, that in the applicant's view, those files contain the

II - 697

JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

explanation for the Head Delegates meeting on 14 January 1983. It did not therefore fulfil its obligation to examine all the relevant evidence carefully and impartially.

703 T h e submission relating t o Greek State aid must be rejected. T h e Commission took into consideration the aid granted by the Greek State t o its cement industry in the 1980s, as is shown in recital 2 4 , paragraph 2, the footnote 115 and, generally, in recital 2 5 of the contested decision. In recital 5 3 , paragraph 8, of the contested decision, the Commission sets out in detail the reasons which led it t o reject the submissions made by some undertakings in the course of the administrative proceedings that 'Article 85(1) w a s n o t applicable t o the members of the ETF because they were acting in legitimate self-defence against exports by the Greek producers, w h o were receiving unlawful aid from the government of their country'. For the rest, that applicant's submissions will be assessed on their merits at paragraphs 2 5 5 2 t o 2 5 6 1 below.

CIMENTERIES CBR AND OTHERS V COMMISSION

context, the various procedural stages followed by the Commission, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved (SCK and FNK v Commission, cited in paragraph 485 above, paragraph 57).

708 In the present case, the notification sent to the Commission on 16 July 1981, to which Unicem refers, concerns the Belgian-Netherlands basing-point system of price setting (contested decision, recital 17, paragraph 4), a system against which no specific objection was raised either in the SO or in the contested decision. It must therefore be considered to be wholly outside the scope of the administrative proceedings initiated by the Commission. Moreover, the fact that in the SO the Commission refers to events dating from 1981 is not relevant when assessing whether the duration of the administrative proceedings, which did not commence until April 1989, was reasonable.

710 Unicem's argument that because of the lengthy duration of the administrative proceedings, it could in many cases no longer recollect events and had lost a considerable proportion of the relevant documents must also be rejected. T h a t argument is irrelevant so far as concerns the Head Delegates meetings in 1983 and 1984 at which the Cembureau agreement was concluded and confirmed, since Unicem has always denied having attended those meetings (contested decision, recital 4 5 , paragraph 13). The measures to implement the Cembureau agreement in which Unicem is alleged to have participated are infringements committed in the framework of the ETF (contested decision, Article 4) and in that of the ECEC (contested decision, Article 5). The events complained of with regard to the activities of the ETF and the ECEC were still continuing at the time of the investigations in April 1989, so that Unicem should not have encountered any difficulty in preparing its defence in that regard.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/9S, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

711 It follows that the 12th plea in law must be rejected.

The 13th plea: infringement of Article 6 of the ECHR

712 Article 6 of the E C H R provides:

715 Asland states that its fundamental rights were infringed in two respects: first, the nature of the procedure in which the Commission applies Article 85(1) of the Treaty is contrary t o Article 6 of the E C H R , as interpreted by the European Court of H u m a n Rights, and to the constitutional traditions c o m m o n to the M e m b e r States, because the Commission has overlapping investigative and decision-making duties and its decisions are not subsequently subject to review of unlimited jurisdiction; the only review subsequently carried out by the Community judicature is a review of legality. Second, the obligation to pay the fine or to lodge a bank guarantee as security for the a m o u n t of that fine before the Court of First Instance has ruled on

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the validity of the contested decision also infringes its right to be heard by an impartial tribunal. Article 185 of the Treaty and Article 192 of the EC Treaty (now Article 256 EC) should, pursuant to Article F of the Treaty on European Union, be reinterpreted in the context of the ECHR and the constitutional traditions common to the Member States as meaning that the enforceability of the fines imposed depends on the Court's decision on legality.

716 Blue Circle for its part also points out that the Court is unable to investigate the whole case de novo.

717 It is settled case-law that the Commission is not a 'tribunal' within the meaning of Article 6 of the ECHR (Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, paragraph 81, and Musique Diffusion Française, cited at paragraph 439 above, paragraph 7; T-11/89 Shell v Commission, cited at paragraph 323 above, paragraph 39). Moreover; Article 15(4) of Regulation No 17 specifically provides that decisions of the Commission to impose fines for infringement of competition law are not of a criminal law nature (Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph 235).

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JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

720 Asland's argument that the enforceability of the fine imposed upon it infringes its right to be heard by an impartial tribunal calls into question the lawfulness of Articles 185 and 192 of the Treaty, which expressly provide that decisions of the Commission involving a pecuniary obligation are enforceable. It is inadmissible, because the Community judicature has n o jurisdiction t o examine the legality of provisions of the Treaty (order of 14 July 1994 in Case T-584/93 Roujansky v Council [1994] E C R II-585, paragraph 15).

721 SFIC (T-36/95) and Vicat (T-37/95) plead breach of the principle of impartiality on the ground that the same official carried o u t the investigations, acted as rapporteur, drew up the SO and prepared the draft decision. T h a t argument cannot be upheld either: the contestéd decision w a s not taken by the official t o w h o m SFIC and Vicat refer, but by the college of Commissioners. W h a t is more, the procedural guarantees provided for by Community law do n o t require the Commission t o adopt an internal organisation precluding the same official from acting as investigator and rapporteur in the same case (T-11/89 Shell v Commission, cited at paragraph 323 above, paragraph 4 0 ) .

722 CBR (T-25/95) submits that the Commission's refusal t o grant access during the administrative procedure t o all documents, whether incriminating or exculpatory, constitutes a manifest infringement of Article 6 of the E C H R , under which it is entitled t o have the competent authorities collect all information which might exculpate or enable it t o have its penalty reduced. Likewise, Lafarge (T-43/95) and Blue Circle (T-88/95) consider that the fact that they were n o t given access t o the full file and t o the full text of the SO infringes Article 6 of the ECHR.

press cuttings predating the adoption of the contested decision which reveal the tenor of that decision and on a reply from Mr Van Miert, a Member of the Commission, dated 15 September 1993, to a written question from the European Parliament (OJ 1993 C 320, pp. 31 and 32), in which he described the agreements and concerted practices referred to in the contested decision as 'cartels'.

726 The Court finds that the arguments put forward are not relevant to the outcome of the dispute: the existence of an infringement must be assessed by reference solely to the evidence gathered by the Commission. Where the commission of an infringement has actually been proved at the end of an administrative procedure, evidence that the Commission prematurely displayed, during that administrative procedure, its conviction that such an infringement exists does not render the proof of the infringement itself any less real. The only relevant question is to ascertain, on the merits, whether or not the infringement has been proved.

729 Italcementi (T-65/95) and Blue Circle (T-88/95) claim that the Commission has not proved beyond all reasonable doubt that the accusations against them were well founded. The Commission had assumed, on the basis of a real presumption of guilt, that any actions taken by the European cement producers had been in pursuance of the Cembureau agreement. By resorting to the argument that there had been a single and continuous agreement, it attempted to avoid having to adduce sufficient evidence to prove particular allegations. Blue Circle states that the Commission was wrong to consider that, following service of the SO, the burden of proof transferred to the applicant. A number of extracts from the contested decision (recital 11, paragraph 6; recital 22, paragraph 14, third subparagraph; recital 22, paragraph 15; recital 2 8 , paragraph 12(c); recital 2 8 , paragraph 2 1 , fourth subparagraph) show that the Commission considered that it was for tne undertakings to prove that tlie allegations in the SO were

II - 7 0 3

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/9J, T-88/95, T-103/95 AND T-104/95

incorrect. Moreover, it did not deal with, or rejected out of hand, the explanations given by the applicant in its reply to the SO, without explaining why it considered them to be implausible.

730 In actual fact those arguments by Italcementi and Blue Circle relate to the question of proof of the infringements alleged against them. They will therefore be considered with the substantive pleas, from which they are indissociable.

732 The Court points out that the Commission may not compel an undertaking involved in a proceeding rinding an infringement of Article 85(1) and/or Article 86 of the Treaty 'to provide answers which might involve an admission on its part of the existence of an infringement which it is incumbent on the Commission to prove' (Case 374/87 Orkem v Commission [1989] ECR 3 2 8 3 , paragraph 35; Case T-34/93 Société Générale v Commission [1995] ECR II-545, paragraph 74; see, by analogy, the judgment of the European Court of H u m a n Rights Funke v France, Series A, N o 256-A, p. 22).

733 However, in the present case, the replies to which Unicem, Castle, Aker and E U R O C refer do not emanate from them. They thus have no grounds for claiming that, during the course of the

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administrative procedure, the Commission infringed their right not to give evidence against themselves.

736 It follows that Unicem, Castle, Aker, and E U R O C have not proved that during the administrative procedure the Commission infringed the right of certain undertakings and associations of undertakings not to give evidence against themselves.

737 SFIC (T-36/96) submits that an SO which does not state sufficiently precisely the objections raised against each of its addressees is likely to cause the parties concerned, through legitimate attempts to exercise their rights of defence, to admit to their participation in infringements which the Commission did not intend to attribute to them. Similarly, SECIL (T-62/95) claims that the imprecise nature of the objections transformed the inter partes stage of the procedure into an extension of the inquisitorial stage of the investigation, in which the Commission sought only to obtain new evidence against the undertakings and associations concerned. Blue Circle (T-88/95) also complains about the imprecision of the SO.

II - 7 0 5

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

738 The Court has already held (see paragraphs 504 to 626 above) that the SO referred sufficiently precisely to the participation of SFIC, SECIL and Blue Circle in the various infringements of which they are accused in the SO and in the contested decision. In those circumstances, there is no basis for the argument p u t forward by those applicants and it must be rejected.

743 In the present case, the applicants concerned, except SFIC, complain only that full information relating to the fines was not sent to the Advisory Committee. In those circumstances, the plea, should it prove to be well founded, could result only in the annulment of Article 9 of the contested decision, in so far as it imposes fines on the applicants concerned. Since that provision must already be annulled to the extent that it imposes a fine on the associations of undertakings

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CIMENTERIES CBR AND OTHERS V COMMISSION

(see paragraphs 478 to 488 above), this plea has become devoid of purpose in the form put forward by BDZ and Oficemen. The plea relied upon by SFIC is also without purpose inasmuch as it complains that full information relating to the fines was not sent to the Advisory Committee.

747 It is apparent from examination of those documents that, during its meeting of 23 November 1994, the Advisory Committee was informed of the criteria envisaged for the imposition of fines (point 1 of the Opinion). The majority of the members of the Advisory Committee considered that 'the Commission [had] applied [those] criteria concerning both the gravity and the duration of the infringements consistently' (point 2 of the Opinion). The handwritten notes made by a member of the Advisory Committee on the preliminary draft of the part of the decision relating to the fines confirm the Commission's contention that the Committee was aware that the undertakings mentioned in recital 6, paragraph 9(a), of the contested decision bore greater responsibility and should be fined 5 % , while the undertakings mentioned in recital 6 5 , paragraph 9(b), of the contested decision were to be fined 3 . 5 % , since they bore lesser responsibility.

II - 7 0 7

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/9S AND T-104/95

748 In those circumstances, even though the members of the Advisory Committee were not informed of the exact a m o u n t of the fines, in ecus, which the Commission intended to impose on the undertakings in question, the Commission sent to the Advisory Committee all the material information necessary for drawing up an opinion on the fines (see, to this effect, Case 45/69 Boehringer Mannheim v Commission [1970] ECR 769, paragraphs 19 to 21). The fact that the Commission ultimately adopted lower percentages for the fines in the contested decision, namely 4 % for the undertakings mentioned in recital 65, paragraph 9(a), of the contested decision and 2 . 8 % for the undertakings mentioned in recital 6 5 , paragraph 9(b), of the contested decision clearly did not damage the interests of the applicants raising the present plea.

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CIMENTERIES CBR AND OTHERS V COMMISSION

opening of a new case to the discretion of the national authorities. They doubt whether the dropping of the national objections without giving any reason is compatible with the principle of subsidiarity, since the matter manifestly falls within the scope of Community interest.

753 Lafarge complains that the Commission created legal uncertainty in the minds of the undertakings against which proceedings had been brought by reserving the right to send the file on the national agreements and concerted practices to the various national authorities, without, however, indicating whether or not it had actually done so. It observes that, if the Commission had actually dropped the national objections, it should have adopted a formal decision to terminate the proceedings.

755 Ciments Français claims that the Commission infringed the principle of the protection of legitimate expectations by accusing the defendant undertakings of concerted action between the Head Delegates of Cembureau on dumping and the basing-point system, despite having itself to a very large extent advocated and encouraged such concerted action.

756 That plea is also unfounded: in the contested decision, the Commission does not complain that the European cement producers held discussions on dumping and on the basing-point system at certain Head Delegates meetings. T h e Head Delegates meetings referred to in recital 19 of the

II - 709

JUDGMENT OF IS. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/9S, T-87/95, T-88/95, T-103/95 AND T-104/95

contested decision are objected to by the Commission solely on the ground that in its view, the participants had, in parallel with those unobjectionable topics of discussion, also concluded and subsequently confirmed an anti-competitive agreement on non-transhipment to home markets and regulation of transfers of cement from one country to another.

757 It follows from all the foregoing that the 17th, 18th, 19th and 20th pleas must be rejected.

761 In those circumstances, the 21st plea in law must be rejected and it is not necessary to a d o p t the measures of organisation of procedure requested (BPB Industries and British Gypsum v Commission, cited at paragraph 142 above, paragraph 3 5 , and Baustahlegewebe v Commis- sion, cited at paragraph 144 above, paragraphs 91 to 94).

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CIMENTERIES CBR AND OTHERS V COMMISSION

The 22nd plea: improper authentication and notification of the contested decision

762 CBR (T-25/95), Heidelberger (T-42/95), Unicem (T-50/95), Valenciana (T-52/95) and Italce- menti (T-65/95) consider that there were irregularities during the authentication and/or notification of the contested decision.

763 Heidelberger claims not to know, as a general matter, whether the Commission observed all its internal rules on procedure and on the adoption of decisions. It states that its fears that there may have been a procedural irregularity are reinforced by the fact that the Commission encountered problems when authenticating and notifying the contested decision.

II - 711

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

contested decision to the Italian undertakings. The Commission was also asked to send the authenticated Italian version of the contested decision.

768 By letter of 2 2 December 1997, the Commission explained that the error in question occurred at the printing stage of the contested decision prior t o notification. T h e version first notified t o the Italian undertakings included a page 2 3 3 which was identical to page 2 3 1 , whereas the real page 2 3 3 w a s missing. T h e authentication of the contested decision w a s n o t , however, vitiated by an error. Indeed, the Italian version of the contested decision, annexed t o the minutes of the meeting of the Commission held on 30 November 1994, did n o t contain the error affecting the text of the contested decision notified t o the Italian undertakings. W i t h its letter of 22 December 1 9 9 7 the Commission included a copy of the authenticated Italian version of the contested decision, stating that the original in its possession was at the disposal of the Court, should it wish t o verify it.

769 During the hearing on 30 September 1998 in Case T-65/95, the Court asked the Commission t o produce, by 6 October 1998, the original of the authenticated Italian version of the contested decision. CBR and Unicem were informed of that measure of organisation of procedure at the hearings on 14 October and 30 September 1998 respectively. T h e Commission complied with the Court's request within the prescribed period.

uncertainty, it took the view that the time-limit for instituting proceedings began to run from the first notification and, consequently, it had less time to bring its action.

774 When asked by the Court about the differences between the text of the contested decision as first notified and the text subsequently notified, Valenciana merely stated in its letter of 11 December 1997 that the text of the second notification, unlike that of the first one, did not include any figures in the tables and other particulars in recital 23, paragraphs 3 to 5, of the contested decision. It is not therefore disputed that the text of the second notification is identical, in its Spanish version, to the text of the first one, except with regard to some confidential data which was blanked out in the text of the second notification. Accordingly, even though the time-limit for bringing an action against the contested decision began to run as from the first notification, rather than from the second notification as the Commission claims, Valenciana had a period of time corresponding to that provided for in Article 173 of the Treaty, together with an extension on account of distance, for the bringing of an action against all aspects of the contested decision. Valenciana's argument must therefore be rejected.

775 It follows from all the foregoing that the whole of the 22nd plea must be rejected.

II The plea alleging misuse of powers

776 Ciments Français (T-39/95), Lafarge (T-43/95), Oficemen (T-59/95) and Halkis (T-104/95) allege misuse of powers.

777 Halkis claims that the Commission misused its powers by imposing on it a fine for an infringement in which it did not participate. Expressed in this way, the plea is indissociable from the plea alleging manifest error of assessment regarding Halkis' participation in the Cembureau agreement. The Court will therefore examine it in the context of its examination of the substantive pleas concerning that applicant's participation in the Cembureau agreement (see paragraphs 4096 to 4101 and 4 2 1 0 to 4213 below).

III — Pleas alleging infringements of Articles 85(1) and 190 of the Treaty, the principle of equal treatment and the rights of the defence in that the Commission found in Article 1 of the contested decision that there had been an agreement contrary to Article 85(1) of the Treaty and that the various applicants concerned had participated in it

Preliminary observations

782 According to Article 1 of the contested decision, all the addressees of the contested decision 'infringed the provisions of Article 85(1) of the ... Treaty by participating in an agreement designed to ensure non-transhipment to home markets and t o regulate cement transfers from one country to another'. The agreement thus found to have been concluded is also referred to as the 'Cembureau agreement'.

783 In the pleas to be considered here, a number of the applicants criticise the definition of the product market and the geographical market on which the Commission found that there had been an infringement. Some of the applicants plead inconsistency between the SO and the contested decision in regard to the Cembureau agreement. A number of applicants dispute the very existence of that agreement. All the applicants deny having participated in it.

784 Before considering whether the various arguments put forward are well founded, it is appropriate to set out the various findings of fact and of law on which the Commission relied in the contested decision in concluding that the infringement had been committed.

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It is evident from the above that Europe is the relevant market, consisting of a set of juxtaposed and interdependent markets.'

788 The infringement in question consists of an agreement which, according to the Commission, was concluded within Cembureau, the European cement manufacturers' trade association (contested decision, recitals 18, 19 and 45). The agreement was concluded at the meeting of Cembureau Head Delegates held on 14 January 1983 (contested decision, recital 4 5 , paragraph 1). The 'Head Delegates' were the representatives of the members of Cembureau w h o were entitled to vote at its General Assembly (contested decision, recital 15, paragraph 4).

789 The purpose of the agreement was to 'ensure non-transhipment to home markets and to regulate cement transfers from one country to another' (contested decision, recital 4 5 , paragraph 9, and Article 1).

790 In the contested decision the Commission relies solely on the specific documentary evidence identified and discussed in recitals 18, 19 and 4 5 .

II-715

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/9S TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

— Our objective is not of course to take collective decisions here, to pass judgment on what we find or to act as arbiter, but rather, with your assistance, to identify possible solutions capable of modifying market developments and to propose, at least in regard to principles, certain rules of the game which it is in the interests of all of us to follow.

— What we then expect of you is that this exchange of views encourages you to spread words of wisdom around you and that, each time it is necessary, multi- or bi-lateral discussions are held, as and when the need arises.'

794 T h e statement concludes by stating:

'Needless t o say there will be n o minutes of this meeting.'

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CIMENTERIES CBR AND OTHERS V COMMISSION

A. Analysis of situation

1. Data

2. Price situation — National Prices

3. Motivation and organisation of Crossborder Trade - Expected developments

II - 717

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/9J, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/9J, T-SO/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

'2. Intra-European trade

A. Analysis of situation

(iii) Motivation and nature of trade — Expected developments

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CIMENTERIES CBR AND OTHERS V COMMISSION

B. Possible ways to maintain fair trading

— Exports from Germany to the United Kingdom and Ireland;

— Exports from France to Germany;

— Exports from Spain to Ireland and the United Kingdom.

A new hot spot is exports from Italy to Switzerland.'

II-719

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/9S, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

808 In support of that assertion, the Commission refers to the following extracts from the 'summary notes' of 12 November 1984 relating to the meeting held on 7 November 1984 (contested decision, recital 19, paragraph 14; documents 33.126/11754 and 11755):

'East European imports

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CIMENTERIES CBR AND OTHERS V COMMISSION

World market developments

Situation

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/9S, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/9S, T-103/95 AND T-104/95

abovementioned meetings of Head Delegates. It refers in that regard to two Blue Circle internal memoranda, one dated 1 December 1983 (contested decision, recital 18, paragraph 2; documents 33.126/11332 to 11334) and the other undated (contested decision, recital 18, paragraph 3; documents 33.126/11335 to 11337).

810 T h e first, entitled 'Strategy against imports and the future of the UK cement industry', discusses the problem of surplus production in Western Europe:

'At the m o m e n t 2 2 million tonnes of the West European surplus is able t o be channelled t o overseas markets in need of the product but there is every likelihood that this figure will collapse dramatically t o 15 million tonnes or less by early 1985 and under that strain it is probable that the Cembureau principle of n o t transhipping t o internal European markets will break down.'

811 It suggests, in particular, the following defence against cement imports:

'Actually setting up silos in "enemy" territories. A credible and possible effective option to a limited degree, but (a) will be time consuming and expensive (b) may infuriate the whole target country to even greater measures thereby totally breaking the Cembureau agreement and if so [Blue Circle] will inevitably be the greatest loser.'

competitive practice but to compliance with established practices and ethics that have gradually evolved through contact with businesses and economic development in various countries.'

814 In its reply to a statement of objections pursuant to Article 15(1) of Regulation No 17, Cembureau claimed, as regards the Blue Circle memorandum of 1 December 1983 (contested decision, recital 18, paragraph 4; documents 33.126/13568 to 13573):

'This document ... refers simply to good neighbour rules encouraged by Cembureau. The reference to the "Cembureau principle of not transhipping to internal European markets" relates to a type of conduct which is desired by members but does not in itself contain any constraint or a fortiori any penalty.

The reference to a "Cembureau agreement" concerns the same principle, involving "established practices and ethics that have gradually evolved through contact with businesses and economic development in various countries".'

815 The Commission takes the view that Cembureau itself thus ultimately indirectly admitted to the existence of the Cembureau agreement (contested decision, recital 4 5 , paragraph 4).

816 T h e Commission also refers (contested decision, recital 18, p a r a g r a p h 5; documents 33.126/19875 to 19877) to the following statement made by M r Kalogeropoulos, Chairman of Heracles, on 25 June 1986 (not 15 June 1986, as wrongly stated in the contested decision) at a Heracles Board Meeting:

818 I n t h e C o m m i s s i o n ' s view, t h e a g r e e m e n t also has direct effects o n t r a d e b e t w e e n M e m b e r States (contested decision, recital 5 2 ) .

819 T h e Commission considers that 'the whole of the arrangements adopted within the framework of Cembureau and the bilateral and/or multilateral meetings and contacts ... constituted a "single and continuous agreement"' (contested decision, recital 4 6 , paragraph 1, first subparagraph).

820 Accordingly, n o t only the concurrence of wills which emerged between Cembureau and its members at the H e a d Delegates meetings but also the conduct referred t o in Articles 2 t o 6 of the contested decision constitute a single and continuous agreement.

821 That single and continuous agreement is the agreement referred to in Article 1 of the contested decision.

822 As regards the duration of the infringement, the Commission refers (contested decision, recital 4 5 , paragraph 6) t o the abovementioned statement of M r Kalogeropoulos:

' [ M r Kalogeropoulos] suggests that the agreement not t o tranship t o internal markets h a d existed for some 30 years. Since it does n o t have any other evidence than this statement t o indicate that the conduct in question had lasted as long as this, the Commission considers that the agreement t o o k effect on 14 January 1 9 8 3 , the date of the meeting at which "certain rules of the game which it is in the interests of all of us t o follow", were discussed ..., rules which were confirmed at the following meetings of the H e a d Delegates.'

825 Dyckerhoff (T-35/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), Unicem (T-50/95), Buzzi (T-51/95), Asland (T-55/95), Castle (T-56/95), Uniland (T-58/95), Oficemen (T-59/95), Irish Cement (T-60/95), Italcementi (T-65/95), Aker (T-70/95), EUROC (T-71/95), Cementir (T-87/95) and Blue Circle (T-88/95) consider that by taking the market in grey cement as the relevant market, a market which it alleges to be of a European dimension, the Commission committed serious errors of assessment. Lafarge and Aalborg maintain that that market does not constitute a separate market (A). Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Buzzi, Asland, Castle, Uniland, Oficemen, Irish Cement, Italcementi, Aker, EUROC, Cementir and Blue Circle maintain that the cement market is a very local market, so that Europe cannot constitute the relevant geographical market (B).

826 CBR (T-25/95), Ciments Français, Asland and Blue Circle consider that the Commission infringed Article 190 of the Treaty by failing to define the relevant product and geographical markets with sufficient clarity (C).

A — The relevant product market

827 Lafarge and Aalborg challenge the definition of the relevant product market in recital 11, paragraph 1, of the contested decision.

828 Lafarge maintains that the definition is based on the absurd economic reasoning that clinker and cement are substitute products. The definition also ignores the distinction between grey cement and white cement.

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831 T h a t argument must also be rejected. T h e arguments put forward by Aalborg, which merely contest the definition of the market in general terms without proposing an alternative definition of the relevant market or markets, do n o t undermine the Commission's detailed analysis of 'grey cement' and 'white cement' in recitals 6 and 7 of the contested decision, which clearly concludes that '[w]hite cement has a different market from the grey cement market' (contested decision, recital 7, paragraph 2), 'since each product meets different requirements' (contested decision, recital 1 1 , paragraph 1).

B — T h e relevant geographical market

832 Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Buzzi, Asland, Castle, Uniland, Oficemen, Irish Cement, Italcementi, Aker, E U R O C , Cementir and Blue Circle deny that Europe is the relevant geographical market (contested decision, recital 1 1 , paragraphs 1 and 7). They submit that the cement market is made up of a mosaic of regional markets which are strictly delimited, with n o overlapping areas, and entirely independent of each other.

833 The Court points out, however, that the approach to defining the relevant market differs according to whether Article 85 or Article 86 of the Treaty is to be applied. For the purposes of Article 86, a proper definition of the relevant market is a necessary precondition for any judgment as to allegedly anti-competitive behaviour (Joined Cases T-68/89, T-77/89 and T-78/89 SIV and Others v Commission [1992] ECR11-1403, paragraph 159) because, before an abuse of a dominant position is ascertained, it is necessary to establish the existence of a dominant position in a given market, which presupposes that such a market has already been

C — Infringement of Article 190 of the Treaty

836 Asland complains that the Commission did not conduct an economic study of the market and of the effects of the Cembureau agreement. It submits that the definition of the relevant market is a necessary precondition for any judgment concerning allegedly anti-competitive behaviour (SIV and Others v Commission, cited in paragraph 833 above, paragraph 159).

837 Asland's argument must be rejected. In recitals 6 to 14 of the contested decision the Commission made a detailed economic analysis of the cement market. The relevant markets, in terms of both product and geographical scope, were defined in recital 11 of the contested decision. Moreover, there is no need to take account of the concrete effects of an agreement once it is clear that it has as its object the restriction, prevention or distortion of competition (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 2 9 9 , 342; Case C-227/87 Sandoz Prodotti Farmaceutici v Commission [1990] ECR I-45, summary publication; Commission v Anic, cited in paragraph 270 above, paragraph 99; Hüls v Commission, cited in paragraph 155 above, paragraph 178; Montecatini v Commission, cited in paragraph 270 above, paragraph 122; CB and Europay v Commission, cited in paragraph 83 above, paragraphs 85 and 87; and

II - 727

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/9J, T-87/95, T-88/95, T-103/95 AND T-104/95

Case T-144/89 Cockerill Sambre v Commission [1995] ECR II-947, paragraph 67). In Article 1 of the contested decision the Cembureau agreement was in fact found to constitute an infringement because of its anti-competitive object.

839 The Court finds that in recital 11 of the contested decision the Commission provides a detailed and consistent account of the reasons which led it to conclude that in the present case the geographical market in question was the European market, 'consisting of a set of juxtaposed and interdependent markets' (contested decision, recital 1 1 , paragraph 7, final subparagraph), and discusses the various observations submitted during the administrative procedure by addressees of the SO, including those submitted by CBR.

840 Thus, as regards economically acceptable transport distances, the Commission, after pointing out that there is no unanimity on this question among European cement producers (contested decision, recital 1 1 , paragraph 3 , first subparagraph), states that 'for its part [it] is not in a position to determine such distance, since it must confine itself to factual findings' (same paragraph, second subparagraph).

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CIMENTERIES CBR AND OTHERS V COMMISSION

841 As regards the existence of oligopolies on the various markets, the Commission states (contested decision, recital 11, paragraph 6, fifth subparagraph):

'The last comment concerns the existence of oligopolies in the various markets, and consequently, the fact that each operator must, before deciding to enter the market of another, take account of the reactions of competitors and of the retaliatory measures which they might take. Without wishing to enter into game theory and the "prisoner's dilemma", ... it is not certain that each operator gains more by remaining on his own market, since game theory also shows that each operator decides to enter the others' market and risk retaliation when he considers that his long-term advantages are greater if he is present on several markets rather than only one. In addition, games between oligopolists are not simple to resolve, since there are many elements of uncertainty involved, and not just the possible retaliation of one operator or another.'

II - 729

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/9J, T-87/95, T-88/95, T-103/95 AND T-104/95

846 As to the remainder, the Commission is not required to provide in the decision a detailed answer to all the arguments formulated during the administrative procedure by the various addressees of the SO. It is sufficient that the statement of reasons allows the Community judicature to exercise its power of review as to the legality of the contested decision and provides the undertakings and associations concerned with the necessary information to be able to determine whether or not the decision is well founded (Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22; Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] 4 4 8 7 , paragraph 72; and Case T-44/90 La Cinq v Commission [1992] ECR II-1, paragraph 42).

847 In the present case it follows from the above account of the contested decision that the Commission provided the undertakings concerned and the Court with all the necessary information to assess whether the definition of the relevant geographical market which it had adopted w a s well founded. In those circumstances, CBR's plea of breach of the obligation to state the reasons for the definition of the geographical market in question must be rejected.

848 Last, Ciments Français alleges that there is a contradiction in the definition of the geographical reference market. In its view the Commission appears to consider, in recital 1 1 , paragraphs 2, 6 and 7 of the contested decision, that there is both a European m a r k e t for cement and a multitude of local markets. The cement market is regional. Consequently, ascribing a European dimension to the relevant market amounts t o including in the same market undertakings which are not current or potential competitors and, accordingly, t o denying that there is a 'geographical market'. Furthermore, in finding that there is a European dimension to the relevant market, the Commission contradicts its decision to separate the domestic agreements and concerted practices from the international agreements.

It is evident from the above that Europe is the relevant market, consisting of a set of juxtaposed and interdependent markets.'

851 It is impossible to detect any contradiction in the reasons underlying the definition of the relevant geographic market as thus presented. N o r is there any contradiction between the definition of the market in the contested decision as European and the Commission's separation of the domestic objections from the international objections during the administrative procedure. It must be pointed out that the international objections, the only ones to which the contested decision relates, do not depend on the existence of the national agreements and concerted practices which had also been called in question in the SO (see paragraphs 110 t o 120 above).

Consistency between the SO and the contested decision

852 CBR (T-25/95) claims that in the SO the Commission maintained that the 'rules of the game' on which the members of Cembureau agreed at the meeting of Head Delegates held on 14 January 1983 related to the Basing point system (hereinafter 'BPS'), but then changed its approach. Following the comments which CBR made during the administrative procedure concerning the legality of that system and of the discussions which took place at the Head Delegates meeting, the Commission ultimately took the view in the contested decision that the 'rules of the game' in question referred to an agreement not to tranship to domestic markets.

853 Aalborg (T-44/95) claims that the object of the Cembureau agreement was not set out in sufficient detail in the SO. N o r was Aalborg aware during the administrative procedure that the Commission would attach major significance to the Head Delegates meetings held on 14 January 1983 and 19 March 1984.

856 It follows that in the SO the Commission clearly indicated that in its view the Cembureau agreement related to the principle of non-transhipment to domestic markets and the regulation of sales from one country to another and that that 'rule of the game' had been agreed at the H e a d Delegates meeting held on 14 January 1983. The SO therefore referred in sufficient detail t o the Cembureau agreement mentioned in Article 1 of the contested decision.

857 As regards Aalborg's argument that during the administrative procedure it was unaware of the significance that the Commission was going to attach to the meetings of H e a d Delegates held on 14 January 1983 and 19 M a r c h 1984, the Court finds that the SO set out in detail the facts relating to those meetings, as regards both the 'circulation of prices between Cembureau members' (SO, point 8) and the 'Cembureau agreement or Cembureau principle of not transhipping to internal European markets' (SO, paragraph 9(a) and (b)). Aalborg, which does n o t deny having participated, as a direct member of Cembureau, in the t w o meetings in question, must therefore nave been aware of the very special importance which the Commission attached to those meetings.

858 FIC (T-30/95) and Aalborg also claim that in the SO the Commission did not state whether the alleged rule on non-transhipment to internal markets adopted within Cembureau was an agreement or a concerted practice.

859 The Court points out that in the SO (point 61(a)) the Commission explained that '[t]he "Cembureau agreement or principle of not transhipping to internal European markets" (point 9) constitutes an agreement and/or a concerted practice'. Accordingly, the addressees of

861 CBR (T-25/95), Cembureau (T-26/95), FIC (T-30/95), ENCI (T-31/95), V N C (T-32/95), Ciments Luxembourgeois (T-34/95), Dyckerhoff (T-35/95), SFIC (T-36/95), Vicat (T-37/95), Cedest (T-38/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), BDZ (T-48/95), Unicem (T-50/95), Rugby (T-53/95), Castle (T-56/95), Heracles (T-57/95), Uniland (T-58/95), Oficemen (T-59/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL (T-62/95), ATIC (T-63/95), Titan (T-64/95), Italcementi (T-65/95), Holder- bank (T-68/95), Aker (T-70/95), E U R O C (T-71/95), Cementir (T-87/95), Blue Circle (T-88/95), AGCI (T-103/95) and Halkis (T-104/95) submit that the Commission infringed Article 85(1) of the Treaty by finding in Article 1 of the contested decision that there was a Cembureau agreement (A). Cembureau, Dyckerhoff, SFIC and Heidelberger contend that the finding of the infringement referred to in Article 1 of the contested decision is based on inadequate or contradictory reasoning, contrary to Article 190 of the Treaty (B). Some of the applicants concerned by the measures of 2 October 1996 and 18 and 19 June 1997 (see paragraphs 164 to 168 above) relied, in the statements which they subsequently lodged, on various documents which they claim would have been of use to their defence had they been accessible during the administrative procedure. Italcementi and Blue Circle also claim that there has been a breach of their rights of defence in that they did not have proper access to the incriminating evidence in the file (C).

markets (internal Blue Circle memoranda (contested decision, recital 18, paragraphs 2 and 3; documents 33.126/11332 to 11334 and 11335 to 11337)) or to the existence of an agreement between European cement producers (statement made by Mr Kalogeropoulos at the Heracles board meeting held on 25 June 1986 (contested decision, recital 18, paragraph 5; documents 33.126/19875 to 19877)). The applicants suggest an alternative reading of the documents in question, compatible with Article 85(1) of the Treaty. They claim that Cembureau never recognised the existence of a Cembureau agreement or principle (1). A second set of arguments relates specifically to the Head Delegates meetings during which the Cembureau agreement is alleged to have been concluded and confirmed. The applicants state that the Head Delegates were not competent to conclude such an agreement and they also dispute the probative value of a number of documents referred to in recitals 19 and 45 of the contested decision. The lawfulness of the discussions held at the Head Delegates meetings is apparent not only from the documents referred to in those two recitals but also from documents which the Commission omitted to examine. A number of the applicants further rely on specific arguments which contradict the existence of a Cembureau agreement (2). A third set of arguments disputes the unlawful nature of the alleged Cembureau agreement and criticises the Commission for not seeking an alternative explanation for the low volumes of inter-State trade in cement (3). These various arguments will be examined in turn and the Court will then draw conclusions from its findings (4).

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868 Heidelberger states that the handwritten notes to which the Commission refers at the end of recital 19, paragraph 6, of the contested decision (documents 33.126/11587 to 11592) give no indication of the identity of their author and are largely illegible. That deprives them of any probative value. Furthermore, the notes relate to the preparations for a Head Delegates meeting held on 14 January 1982 and therefore have no connection with the Head Delegates meeting called in question in recital 19(a) of the contested decision.

869 The Court observes, however, that, as those notes are not included in the documentary evidence on which the Commission relied in recitals 18, 19 and 45 of the contested decision (see paragraphs 790 to 817 above) in order to prove the existence of the Cembureau agreement, there is no need to examine their probative value in relation to the infringement referred to in Article 1 of the contested decision.

870 Heidelberger also claims that the conclusions which the Commission draws in the SO (p. 20, footnote 5) from the handwritten notes entitled 'Preparation Meeting of Head Delegates 7.11.84' (contested decision, recital 19, paragraph 15; document 33.126/11758) relating to the existence of collaboration within Cembureau on the 'restructuring and reduction of production capacities in some surplus countries' are not supported by the 'summary notes' of 12 November 1984 relating to the Head Delegates meeting held on 7 November 1984 (contested decision, recital 19, paragraph 14; documents 33.126/11754 and 11755).

European cement producers that no one must intervene within the national frontiers of the others'. The Commission also refers (paragraph 4) to statements by Cembureau itself concerning the Cembureau agreement or principle (documents 33.126/11525 and 13568 to 13573).

873 In its legal assessment of the conduct referred to in Article 1 of the contested decision the Commission relies directly on the abovementioned documents (contested decision, recital 45). The Commission regards those documents as key evidence of the existence of the Cembureau agreement.

874 It is necessary to examine in turn the various arguments put forward by the applicants in respect of those documents.

1.1. Internal Blue Circle m e m o r a n d a

875 First, Italcementi disputes the probative value of the Blue Circle m e m o r a n d a (docu- ments 33.126/11332 to 11334 and 11335 to 11337). The memoranda set out unilateral statements by one producer, which refer neither to the parties t o , nor the subject-matter of, the alleged agreement. Cembureau maintains that the Blue Circle m e m o r a n d a do not refer to the existence of a Cembureau agreement: the author apparently has in mind the solutions to a number of trade problems. Lafarge also disputes the probative value of those m e m o r a n d a , on the grounds that Blue Circle is not a member of Cembureau and the author of the m e m o r a n d a did not attend the H e a d Delegates meetings. Aalborg, Uniland and Oficemen also point out that the author of the m e m o r a n d a was not present at the H e a d Delegates meeting held on 14 January 1983.

878 In those circumstances, the Commission was entitled to take the view that the Blue Circle memoranda were 'valid evidence because of Blue Circle's role within Cembureau and Mr Reiss's role within Blue Circle' (contested decision, recital 45, paragraph 3, first subparagraph). Having regard to the leading role which the Blue Circle management played within Cembureau and Mr Reiss's position within Blue Circle, it could be concluded that the author of the memoranda had, with full knowledge of the facts, indicated that there was an agreement, a principle or a policy of not transhipping to internal European markets and connected that agreement, principle or policy with Cembureau.

879 It is true, however, as Italcementi maintains, that the Blue Circle internal memoranda do not identify the parties which subscribed to the Cembureau agreement, principle or policy of not transhipping to internal European markets. It will be necessary later to consider whether the participation of the various undertakings and associations of undertakings in the agreement referred to in Article 1 of the contested decision is actually established.

880 Second, CBR, FIC, Ciments Français, Oficemen and Blue Circle submit that the expressions 'Cembureau principle' or 'Cembureau agreement' used by the author of the internal memoranda could in reality be 'shorthand' referring to economic circumstances which naturally limit transhipment of cement between producer countries. Ciments Français adds that the marginal nature of flows within the Community was the consequence of the actual features of the European cement industry and not of an agreement between European producers.

885 However, those findings are not of such a nature as to affect the Commission's conclusion that an agreement on non-transhipment to internal European markets was concluded within Cembureau or to preclude the possibility that both the Blue Circle internal m e m o r a n d a referred to that agreement. The m e m o r a n d a , entitled 'Strategy against imports and the future of the UK cement industry' and 'Import threat', both concerned the general problem of cement imports into the United Kingdom. It was therefore natural that they should deal both with the problem of imports from Cembureau countries and the problem of imports from other countries. In any event, even imports from countries outside Cembureau represented a threat to the principle of non-transhipment to internal European markets as described in the Blue Circle m e m o r a n d a . D u m p e d imports threatened to increase European production surpluses, which would then have to be channelled outside Europe in order to safeguard the Cembureau principle of non- transhipment to internal European markets. In that regard, the m e m o r a n d u m of 1 December 1983 clearly stated that owing to the impossibility of finding outlets in overseas markets for West European surplus the principle was in danger of breaking down. Last, even dumped imports from countries which did not then belong to the Community could a m o u n t to a breach of the Cembureau principle of not transhipping to internal European markets. T h e entire European cement industry w a s represented within Cembureau. Thus the Spanish H e a d Delegate participated in the H e a d Delegates meeting held on 14 January 1983 (contested decision, recital 19, paragraph 4; document 33.126/11581) and the one held on 19 M a r c h 1984 (contested decision, recital 19, paragraph 8; documents 33.126/11699 and 11700). For that reason the Commission considered that the Spanish producers were bound by the Cembureau agreement with effect from 14 January 1983, although their participation did not then constitute an infringement of Article 85(1) of the Treaty (contested decision, recital 4 5 , paragraph 11) because their conduct did not produce any significant effects within the Community.

889 T h e Court observes, first of all, that the applicants never submitted such an explanation of the Blue Circle memoranda before the oral procedure in Cases T-30/95 and T-88/95 was opened.

890 T h e argument must in any event be rejected and there is no need to determine whether it is admissible.

891 T h e agreement relating to the non-European market t o which the applicants refer would have required the approval of traders from non-European countries w h o bought cement produced in Europe. Where cement produced in Europe is sold in an overseas market, the purchaser is at liberty to re-export it to the Community. In those circumstances, an agreement such as that alleged by Blue Circle and FIC, which would have involved the consent of parties outside Cembureau, would not have been described by the author of the memoranda as the 'Cembureau' agreement, principle or policy.

892 Moreover, irrespective of the reference to Cembureau, if FIC's and Blue Circle's interpretation were correct it would have been natural for the author of the memoranda t o have described the

II - 739

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

895 In any event, the various interpretations suggested by Blue Circle and FIC are contradictory, as the 'economic fact' which would 'naturally limit the transhipment of cement' (see paragraph 880 above) would n o t prevent cement sold by European cement producers in overseas markets, in particular in the South American market, from being re-imported into Europe.

896 Fifth, Irish Cement and Cementir consider that the reference in the undated Blue Circle m e m o r a n d u m (contested decision, recital 18, paragraph 3; documents 33.126/11335 t o 11337) to imports from West Germany is inconsistent with the existence of the Cembureau agreement.

897 T h e Court finds, however, that the existence of imports from West Germany is not such as t o shed a different light on the express and unequivocal reference by the author of that m e m o r a n d u m t o the 'Cembureau policy of n o t transhipping t o internal markets'. Furthermore, it is clear that in the m e m o r a n d u m t o the Chairman concerning the H e a d Delegates meeting held on 19 M a r c h 1984 (contested decision, recital 19, paragraph 9; documents 33.126/11728

II - 7 4 0

CIMENTERIES CBR AND OTHERS V COMMISSION'

and 11729) exports from Germany to the United Kingdom and Ireland, which are described as a 'hot spot', were seen as problematical (see paragraph 804 above). It must therefore be concluded that the Cembureau agreement, principle or policy of not transhipping to internal European markets to which the Blue Circle memoranda refer was not successful everywhere. However, the fact that an agreement is not observed by everyone does not mean that it does not exist (see, to that effect, Case T-347/94 Mayr-Melnhof v Commission [1998] ECR II-1751, paragraph 135).

899 T h a t argument must also be rejected. T h e content of the documents relating to the Head Delegates meeting held on 19 March 1984 is along the same lines as that of the t w o Blue Circle m e m o r a n d a . Although the notes on that meeting (contested decision, recital 19, paragraph 10; documents 33.126/11733 to 11737) stated that '[pļressure from inter-member trade had slackened considerably through improved bilateral contacts' and that '[e]xports had tended t o shrink', there w a s 'still a threat from outsiders' (see paragraph 806 above). Furthermore, in the m e m o r a n d u m t o the Chairman concerning the meeting on 19 M a r c h 1984 (contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729) various ' h o t spots' are identified, one of which is also mentioned in the undated Blue Circle m e m o r a n d u m , namely exports from Germany (see paragraph 897 above). In the same document it is also stated (see paragraph 8 0 3 above) that '[tjhe gap between [prices in the various Cembureau countries], which is between 1 and 2, inevitably constitutes a temptation. It is therefore desirable ... to reduce that g a p ' . T h e first paragraph of the Blue Circle m e m o r a n d u m of 1 December 1983 refers t o the problem of high prices in the United Kingdom as follows: ' T h e one and only reason we are suffering imports ... is o u r price .... the cause is basically o u r ex works price of about £ 4 0 against a large European surplus available at £ 1 7 FOB or £ 2 5 into silo in the [United Kingdom]'. It is n o t surprising, therefore, that Blue Circle should paint a rather negative picture of the situation a few months before the Head Delegates meeting on 19 March 1984.

902 First, CBR, FIC, Ciments Français, Lafarge, Aalborg, Heracles, Uniland, Oficemen, Irish Cement and Blue Circle claim that the statement made by M r Kalogeropoulos, the Chairman of Heracles, at its Board Meeting on 2 5 June 1986 (contested decision, recital 18, paragraph 5; documents 33.126/19875 to 19877) is not susceptible of establishing, and even contradicts, the existence of the alleged Cembureau agreement. They maintain that the statement concerns an alleged agreement which had existed for 30 years. It cannot therefore be the agreement referred to in Article 1 of the contested decision, which is alleged to have existed since 14 January 1 9 8 3 . The applicants in question submit that the statement makes n o reference to Cembureau. They state that M r Kalogeropoulos was a politician w h o had just become Chairman of Heracles and w h o was unfamiliar with the reality of the cement industry. In order to justify the grant of State aid to his undertaking, he was attempting to find external reasons for the internal problems experienced by his undertaking, which were in fact due to certain strategic errors.

903 T h e Court observes that although the statement made by M r Kalogeropoulos does not refer to Cembureau it contains an unequivocal reference to the existence of an agreement between European cement producers designed to protect internal markets. H e stated that 'there ha[s] existed and continue [s] to exist an agreement by all the European cement producers that no one must intervene within the national frontiers of the others'.

907 As regards the argument that M r Kalogeropoulos was not familiar with the reality of the cement industry, it is not credible that he should make a statement to the board of his undertaking without being informed of the industrial and commercial environment in which that undertaking operated. Furthermore, the document in question contains no reference to State aid to Heracles or any indication that the criticisms which M r Kalogeropoulos directed at the United Kingdom and European producers was intended to conceal past strategic errors. In any event, the statement by the Chairman of Heracles does not seek to justify its earlier conduct. It outlines the company's current strategy regarding exports to the United Kingdom market and explains why those cross-border sales provoked such sharp reactions on the part of other European producers.

908 Second, Lafarge also relied at the hearing on the document 'Exports of Greek cement to England' (document 33.126/11116) of 3 October 1986, signed by M r Kalogeropoulos on behalf of Heracles and by M r Canellopoulos on behalf of Titan. Lafarge maintains that in that document M r Kalogeropoulos denied that cement exports from Greece had been subsidised. As it contains a 'gross untruth,' that document undermines his credibility. It follows that the statement which he made on 25 June 1985 cannot be regarded as having any probative value.

912 Fourth, and last, Aalborg maintains that in his statement the Chairman of Heracles must have been referring t o an agreement which w a s binding on some but n o t all European cement producers.

913 T h e Court finds that in reality the statement made by the Chairman of Heracles shows the existence of t w o closely connected agreements: first, the specific agreement reached in 1986 between the United Kingdom producers and a number of other European cement producers designed t o deal with the threat which exports from Greece had represented since 1986 and, second, the general and longstanding agreement between 'all European cement producers' that 'no one must intervene within the national frontiers of the others', which explains precisely w h y support was given t o the United Kingdom producers by the other West European producers in their fight against imports of cement from Greece. Aalborg's argument must therefore be rejected.

1.3. Admission by Cembureau

914 Cembureau claims that it has never acknowledged the existence of the Cembureau agreement. Contrary t o w h a t the Commission alleges in recital 4 5 , paragraph 4, of the contested decision, it has argued throughout the administrative procedure that there 'is no "Cembureau agreement or Principle" or a fortiori any other document containing implementing rules' (reply provided by Cembureau in the course of an investigation pursuant t o Article 14 of Regulation N o 17; contested decision, recital 18, paragraph 4; document 33.126/11525). Any other comment which Cembureau m a y have made concerning the alleged Cembureau agreement w a s pure speculation on its part. Ciments Français, Uniland, Oficemen and Cementir also maintain that Cembureau has always denied the existence of the Cembureau agreement.

The reference to a "Cembureau agreement" concerns the same principle, involving "established practices and ethics that have gradually evolved through contact with businesses and economic development in various countries".'

917 It follows from the foregoing that Cembureau has merely denied the existence of a formal Cembureau agreement but not the existence of a concurrence of wills on the part of Cembureau and its members. Thus it acknowledged during the administrative procedure that the Cembureau agreement or principle referred to compliance with good neighbour rules which had been 'encouraged by Cembureau' itself and which, moreover, were 'desired by members' (contested decision, recital 18, paragraph 4; documents 3 3 . 1 2 6 / 1 3 5 6 8 to 13573). A concurrence of wills between an association and its members concerning good neighbour rules or established practices and ethics constitutes an agreement within the meaning of Article 85(1) of the Treaty, even if the binding element of the agreement is lacking (Van Landewyck and Others v Commission, cited in paragraph 717 above, paragraphs 85 and 86).

918 Cembureau cannot claim that its description of the Cembureau agreement is pure speculation on its part. Where it describes the content of the good neighbour rules which it 'encouraged', it does so in full knowledge of the facts. In the light of the documents already examined (see paragraphs 875 to 913 above) and the documents relating to the Head Delegates meetings (see

II - 745

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

922 Before considering the arguments relating to the documentary evidence on which the Commission's findings are based and all the other arguments relating to the Head Delegates meetings in question, the Court will consider the argument that the Head Delegates were not competent to conclude a commercial agreement.

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CIMENTERIES CBR AND OTHERS V COMMISSION

2.1. The competence of the Head Delegates to conclude the Cembureau agreement

923 CBR, Cembureau, FIC, VNC, Dyckerhoff, SFIC, Vicat, Heidelberger, Lafarge, BDZ, Rugby, Castle, ATIC, Italcementi, Aker, EUROC and Cementir state that the object, structure and activities of Cembureau were perfectly legitimate and claim that the Head Delegates were not competent to conclude an agreement contrary to Article 85(1) of the Treaty. Under Cembureau's Articles of Association only decisions of the General Assembly are binding on the members of that association. Lafarge states that no Cembureau organ, whether the General Assembly or the Head Delegates, was authorised to adopt commercial or industrial policy decisions capable of binding the cement industry. VNC states that the Head Delegates meetings were not a Cembureau organ. Those meetings were merely a forum for informal discussion.

924 T h e Court points out that the first subparagraph of paragraph 6 of Cembureau's Articles of Association applicable during the period to which the contested decision relates states:

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

therefore a de facto framework within which an agreement such as that referred to in Article 1 of the contested decision could be concluded.

928 T h e argument that neither Cembureau nor the H e a d Delegates were empowered by the Articles of Association t o conclude the Cembureau agreement must therefore be rejected. Accordingly, it is necessary only to examine whether the H e a d Delegates actually concluded an agreement contrary t o Article 85(1) of the Treaty at the meeting held on 14 January 1983 and whether that agreement w a s confirmed at the meetings held on 19 M a r c h and 7 November 1984. To accept the argument of the applicants concerned would in effect deprive Article 85(1) of the Treaty of all practical effect, since the Articles of Association of an undertaking or association of undertakings never permit the conclusion of agreements with an unlawful purpose.

2.2. Conclusion of the Cembureau agreement at the H e a d Delegates meeting held on 14 January 1983

929 CBR, Cembureau, FIC, ENCI, V N C , Ciments Luxembourgeois, Dyckerhoff, SFIC, Vicát, Cedest, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Rugby, Castle, Heracles, Uniland, Oficemen, Irish Cement, Cimpor, SECIL, ATIC, Titan, Italcementi, Holderbank, Aker, E U R O C , Cementir, Blue Circle and AGCI maintain that the documents on which the Commission relies do not prove that the Cembureau agreement w a s concluded at the meeting of H e a d Delegates on 14 January 1 9 8 3 . Their association is based on an examination of the various documents relating t o that meeting referred to in recitals 19 and 4 5 of the contested decision.

932 In the Commission's view it follows from that letter that it was envisaged that the Head Delegates meeting on 14 January 1983 would deal with the problems raised by trade within Europe and that it would be necessary to find 'rules of the game' to limit and regulate those transfers (contested decision, recital 45, paragraphs 1 and 9, and recital 46, paragraph 2).

933 Cembureau, Ciments Français, Lafarge, Irish Cement and Cementir claim, however, that the letter convening the meeting was sent by its author, acting in a personal capacity, only to the Danish Head Delegate (Mr Larsen) and his Irish counterpart (Mr Dempsey). T h e 'official' letter convening the meeting of Head Delegates on 14 January 1 9 8 3 , which was also dated 16 N o v e m b e r 1982 (documents 3 3 . 1 2 6 / 1 1 5 5 4 t o 11557), enclosed by Cembureau as Annex 3.3 t o its application, does not include the passage set out in recital 19, paragraph 2, of the contested decision and shows that the purpose of the meeting held on 14 January 1983 was lawful.

934 As the applicants in question point out, there are in fact t w o versions of the letter convening the meeting. T h e version quoted in the contested decision is signed by M r Gil Braz de Oliveira, Delegate t o Cembureau's Executive Committee (contested decision, recital 19, paragraph 2; documents 33.126/11552 and 11553). It is c o m m o n ground that that letter was sent to Aalborg and t o Irish Cement. In that letter M r Gil Braz de Oliveira informed them of the proposed date of the next Head Delegates meeting, 14 January 1 9 8 3 , 'at the request of the Cembureau Chairman, M r Jean Bailly'. In those circumstances, the applicants cannot reasonably contend that M r Gil Braz de Oliveira wrote to them in his personal capacity.

938 In that telex M r Van Hove was asked to give his view on item 2 on the agenda, which had to read 'sufficiently clearly without giving rise to reactions'.

939 Item 2 on the original agenda referred expressly to 'intra European trade' and one of its subdivisions referred to possible measures to control intratrade (contested decision, recital 19, paragraph 3; documents 33.126/11559 and 11580; see paragraphs 942 to 954 below).

940 It follows from the foregoing that the arguments disputing the probative value of the letter from M r Gil Braz de Oliveira convening the meeting cannot be accepted. The Court finds, on the contrary, that the letter is relevant evidence, inasmuch as it stated that the members of the Cembureau Executive Committee considered that intra-European cement transfers could 'have harmful consequences' for the cement industry and that it was necessary to convene an exceptional meeting of H e a d Delegates on 14 January 1983 in order to take the 'appropriate measures'.

941 A number of the applicants claim, however, that the 'appropriate measures' envisaged concerned the basing point system, not the principle of non-shipment to internal markets. T h a t argument will be considered in paragraphs 977 to 987 below.

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CIMENTERIES CBR AND OTHERS V COMMISSION

945 In the original draft agenda dated 16 November 1982 (contested decision, recital 19, paragraph 3; documents 33.126/11559 and 11580), item 2 was drafted as follows:

'2. Intra European Trade

A. Analysis of situation

1. Data

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4. Other measures'.

946 T h e discussions thus envisaged within an association bringing together direct competitors from all the M e m b e r States, concerning measures designed t o 'control' or 'organise' intra-European trade, were clearly likely t o fall foul of Article 85(1) of the Treaty. In that regard, it should be pointed out that on Cembureau's o w n admission (Case T-26/95, application, point 3.1) M r Van Hove w a s Cembureau's expert on Community competition law.

947 Next, it must be emphasised that the request t o M r Van Hove related only t o item 2 on the draft agenda (see paragraph 9 4 4 above). T h e other items on the agenda, ' 1 . Imports from Eastern Europe', ' 3 . World market conditions' and ' 4 . Conclusions and decisions', were vague in comparison with item 2 and did n o t raise problems under Article 85(1) of the Treaty.

948 It must be held that the amendments suggested by M r Van Hove t o item 2 on the agenda related only to wording which w a s liable t o disclose that the participants in the meeting of 14 January 1983 pursued an anti-competitive objective.

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951 Furthermore, other documents bear witness to the same desire by Cembureau to conceal the true content of the meeting of Head Delegates held on 14 January 1983. The draft introductory statement by the Chairman for the Head Delegates meeting on 14 January 1983 (contested decision, recital 19, paragraph 5; documents 33.126/11583 to 11585) states that '[n]eedless to say there will be no minutes of this meeting', while the m e m o r a n d u m on the structure of the meeting (contested decision, recital 19, paragraph 6; documents 33.126/11578 and 11579) states '13.15/13.30 — Close of meeting — N o minutes' (see paragraphs 962 to 976 below).

952 T h e argument that tension existed between the Spanish and Irish producers owing, in particular, to alleged dumping by the Spanish producers, must be rejected. All the references to dumping in the original draft were retained in the agenda adopted following the amendments suggested by M r Van Hove. Moreover, the latter amendments were unlikely to have a more beneficial effect on relations between the Spanish and Irish producers than the original draft agenda.

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953 T h e Court must also reject FIC's argument that the amendments to item 2 made at M r Van Hove's suggestion were intended t o give a correct description of the topic that M r Van Hove was t o deal with. Neither the original draft, the suggested amendments n o r the final agenda mentioned the titles of the reports t o be given at the meeting or a fortiori the various speakers.

957 FIC also states that none of the documents relating to the H e a d Delegates meetings refers t o or mentions the establishment of an agreement n o t t o tranship t o internal markets.

958 T h e Court observes that, for there t o be an agreement within the meaning of Article 85(1) of the Treaty, it is sufficient for the undertakings in question to have expressed their joint intention t o conduct themselves on the market in a specific w a y (judgments cited in paragraph 2 7 0 above, Commission v Anic, paragraph 130, and Montecatini v Commission, paragraph 162; Case

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T-141/89 Tréfileurope v Commission [1995] ECR II-791, paragraph 95). Thus the Community judicature has taken the view that a 'gentlemen's agreement' constitutes an agreement within the meaning of Article 85(1) of the Treaty (ACF Chemiefarma v Commission, cited in paragraph 643 above, paragraphs 106 to 114, and Tréfileurope v Commission, paragraph 96). An agreement does not therefore have to be binding in order to be classified as an agreement within the meaning of Article 85(1) of the Treaty.

959 In the present case the Chairman stated in his draft introductory statement for the meeting of H e a d Delegates on 14 January 1 9 8 3 :

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963 CBR, Cembureau and Irish Cement claim that the preparatory nature of the draft introductory statement by the Chairman deprives it of any evidential value.

964 The Court points out that it is c o m m o n ground (Cembureau's application in Case T-26/95, point 2.5) that the draft introductory statement was drawn up by directors of Cembureau, M r Dutron and M r Collis. There is n o reason to conclude that it did not reflect the views of M r Bailly, the Chairman of Cembureau. O n the contrary, it is apparent from the telex dated 17 November 1982 from M r Collis and M r Dutron to M r Van Hove (contested decision, recital 19, paragraph 3; document 33.126/11559) that there was close collaboration between the Chairman of Cembureau and the authors of the Chairman's draft introductory statement in preparation for the meeting on 14 January 1983. The telex states: ' M r Bailly would welcome your views on the wording of item 2 which should read sufficiently clearly without giving rise to reactions' (contested decision, recital 19, paragraph 3 ; document 33.126/11559). Since M r D u t r o n and M r Collis normally drafted the minutes of meetings organised within the framework of Cembureau, and in particular of meetings of the Executive Committee (Cembureau's application in Case T-26/95, points 2.5 and 2.15), it must be accepted that the passage in the draft introductory statement in which it was stated that there would be n o minutes of the meeting reflected the intention of the Chairman of Cembureau. Since it has not been shown that formal minutes of the meeting were none the less taken (see paragraphs 970 to 976 below), the appropriate conclusion is that the Chairman of Cembureau did in fact announce at the meeting on 14 January 1983 that there would be n o minutes of the meeting and that that announcement received the, at least tacit, approval of the participants.

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wished to indicate that the meeting was of a different nature from a meeting of the Executive Committee. Lafarge maintains that in reality the Chairman's announcement reflected the desire to reduce, by not expressly acknowledging it, the tension within Cembureau caused by the problems of dumping associated, in particular, with imports from Spain and East Germany.

968 The Court must, however, also reject the explanations based on the informal nature of the meeting of 14 January 1983. Unlike in the case of the meeting of 14 January 1983, the other Head Delegates meetings referred to in the contested decision were the subject of 'notes on [the] meeting' or 'summary notes' (notes on the meeting of Head Delegates on 19 March 1984 (contested decision, recital 19, paragraph 10; documents 33.126/11733 to 11737); 'summary notes' dated 12 November 1984 relating to the meeting of Head Delegates on 7 November 1984 (contested decision, recital 19, paragraph 14; documents 33.126/11754 and 11755)).

969 Similarly, as regards Lafarge's explanation that there were tensions within Cembureau, the Court points out that the references at the Head Delegates meetings on 19 March and 7 November 1984 to the tension caused by exports from Spain and East Germany did not prevent 'notes on [the] meeting' or 'summary notes' from being d r a w n up.

970 Next, Cembureau, FIC, Aalborg, Irish Cement, Cementir and Blue Circle claim that, contrary to what the Commission alleges, one or more minutes of the Head Delegates meeting of 14 January 1983 exist. That shows that what the Chairman proposed in his draft introductory statement was to no avail.

973 Furthermore, none of the documents referred to in paragraph 971 above can be regarded as official minutes of the meeting. The document entitled 'Meeting of H e a d Delegates, Paris, 14 January 1983 — Notes for the [Chairman]', contains, as its title indicates, notes for the attention of the Chairman of Cembureau. It does not therefore constitute minutes of the H e a d Delegates meeting intended for those participating in the meeting. Second, contrary to w h a t Cembureau claims, the minutes of the meeting of the CLC held on 17 M a r c h 1983 do not contain any reference to the discussions at the meeting of 14 January 1 9 8 3 . The untitled document to which Aalborg refers, although its content largely corresponds to the 'Notes for the [Chairman]', contains n o express reference to the H e a d Delegates meeting on 14 January 1983 and cannot therefore be regarded as official minutes of that meeting. As regards the 'Cimpor note', it contains only a handwritten reference to the H e a d Delegates meeting on 14 January 1983 and it is c o m m o n ground that it was distributed at the meeting of the Executive Committee on 2 5 M a r c h 1 9 8 3 . H a d they existed, the official minutes of the meeting of H e a d Delegates of Cembureau would have been distributed in an different way, that is t o say, to the H e a d Delegates themselves, and Cembureau, or a member of Cembureau, would therefore have been in a position to produce a document thus distributed.

974 CBR admits that there are n o formal minutes of the H e a d Delegates meeting held on 14 January 1983. N o n e the less, a number of documents reveal the content of the presentations made at that meeting. Even in the absence of a reliable transcript of the report on the basing point system given at the meeting on 14 January 1983, the document on the basis of which the report w a s given, namely the notes of M r Van Hove (contested decision, recital 17, paragraph 3; documents 33.126/11602 to 11613) was circulated among the members of Cembureau. The Commission also followed the same practice at its hearings, for example at the hearings in M a r c h 1 9 9 3 , when it distributed documents relating to the reports of Professor Encaoua and the expert witness, M r Bensaid, and called them 'minutes of the hearing'.

977 Third, CBR, Cembureau, FIC, Dyckerhoff, Ciments Luxembourgeois, SFIC, Vicat, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Castle, Heracles, Oficemen, Irish Cement, Cimpor, SECIL, Titan, Italcementi, Aker, E U R O C , Cementir, Blue Circle and AGCI stress that the subject-matter of the discussions at the meeting of 14 January 1983 was lawful. Thus CBR, Cembureau, FIC, Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Castle, Heracles, Oficemen, Irish Cement, Cimpor, SECIL, Titan, Italcementi, Aker, E U R O C , Cementir and AGCI maintain that the participants in the meeting in question sought solutions, such as the basing point system, which would, given the background of recession in the European cement industry, ensure conditions of healthy competition, compatible with the rules of the Treaty. T h e discussions concerned, in particular, the possible introduction of a general basing point system comparable with that notified to the Commission on 16 July 1981 by the Belgian and Netherlands cement producers, which had been favourably received. CBR, Cembureau, FIC, Dyckerhoff, SFIC, Vicat, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Castle, Heracles, Irish Cement, Cimpor, SECIL, Aker, E U R O C , Cementir and Blue Circle add that at the meeting of 14 January 1983 consideration was given to the problems caused by imports of cement — frequently dumped — from countries which were not members of the Community, in particular Spain and East European countries, and also to the preparation of an anti-dumping complaint. SFIC and Unicem also maintain that the Head Delegates meeting on 14 January 1983 also concerned the protection of members against imports subsidised by a M e m b e r State.

— Aalborg and Unicem: untitled document relating to the Head Delegates meeting held on 14 January 1983 (contested decision, recital 17, paragraph 3; documents 33.126/11617 to 11629);

— Cembureau (annex 3.1 to its application), Irish Cement (point 3.2.5.2.1. of its application) and Cementir (annex 14 to its application): draft minutes of the meeting of the Executive Committee held on 5 November 1982;

— Cembureau (annex 3.16 to its application) and Irish Cement (paragraph 3.2.5.2.2. of its application): draft minutes of the meeting of the Executive Committee held on 25 March 1983;

— Cembureau and Irish Cement: letter from Irish Cement to Cembureau dated 5 January 1983 stating that an anti-dumping complaint had been submitted (contested decision, recital 19, paragraph 6; document 33.126/11572);

•— Cembureau, Unicem, Cementir and Blue Circle: data distributed at the Head Delegates meeting held on 14 January 1983 (information on prices, production and volumes of exports of a number of countries in Eastern Europe and the Middle East; tables relating to 'Imports from Eastern Europe', to 'Domestic Prices (taxes excluded)' and to 'Member trade data: imports (intra-trade)'; contested decision, recital 19, paragraph 6; documents 33.126/11593 to 11601);

— Unicem: document entitled 'Preparatory note for the Head Delegates meeting on 14 January 1983' (contested decision, recital 16, paragraph 2; document 33.126/11590) and Mr Van Hove's notes for the Head Delegates meeting on 14 January 1983 (contested decision, recital 17, paragraph 3; documents 33.126/11602 to 11613);

980 The draft introductory statement by the Chairman for the meeting of 14 January 1983 (contested decision, recital 19, paragraph 5; documents 33.126/11583 to 11585) confirms that it was envisaged that 'trade between members' would be examined. It is apparent from that draft statement that it was necessary to assess 'the risks entailed by an increase in certain imports coupled with a sharp reduction in certain prices, before this phenomenon has had time to spread in extent and gravity'. The purpose of the meeting was to 'identify possible solutions capable of modifying market developments and to propose, at least in regard to principles, certain rules of the game which it [was] in the interest of [all those participating in the meeting] to follow'. The draft introductory statement went on: ' W h a t we then expect of you is that this exchange of views encourages you to spread words of wisdom around you and that, each time it is necessary, multi- or bi-lateral discussions are held, as and when the need arises.'

981 According to the Commission, the 'rules of the game' which it was 'in the interests' of all the cement producers to 'follow' were non-transhipment to home markets and the regulation of sales from one country to another, that is to say, market-sharing (contested decision, recital 4 5 , paragraphs 1 to 6 and 9).

984 T h u s the m e m o r a n d u m to the Chairman regarding the meeting of 19 M a r c h 1984 (contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729) and the notes on that meeting (contested decision, recital 19, paragraph 10; documents 33.126/11733 to 11737) mention as item 2 on the agenda: 'Situation on the European market'. The m e m o r a n d u m to the Chairman refers to a number of 'hot spots', namely '[e]xports from Germany to the United Kingdom and Ireland, [e]xports from France to Germany, [e]xports from Spain to Ireland and the United Kingdom and ... exports from Italy to Switzerland'. T h e same document reports that: 'The gap between [prices in the various countries] which is between 1 and 2 inevitably constitutes a temptation. It is therefore desirable gradually to reduce the gap, essentially by increasing the lowest prices ... and also by moderating high price trends.' As regards the notes on the meeting, they conclude: 'Pressure from inter-member trade had slackened considerably through improved bilateral contacts. Exports had tended to shrink but there was still a threat from outsiders.' It had earlier been stated in the notes that 'a visual presentation of price ranges was an effective means of highlighting potential causes of conflict'.

987 Last, SFIC and Unicem adduce n o evidence whatsoever to support their contention that the H e a d Delegates meeting on 14 January 1983 also dealt with the protection of producers against

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imports subsidised by a Member State. In any event, the fact that the discussions may have also related to subsidised imports is not such as to shed a different light on the body of documentary evidence examined in paragraphs 979 to 985 above.

988 Fourth, Dyckerhoff, Irish Cement and Blue Circle maintain that it is clear from the 'Cimpor note' distributed to the participants in a meeting of the Executive Committee of Cembureau on 25 March 1983 that the participants in the meeting on 14 January 1983 evidently wished to comply with Articles 85 and 86. In that regard, Dyckerhoff, Irish Cement, and FIC also refer to the document entitled 'Meeting of Head Delegates, Paris, 14 January 1983 — Notes for the [Chairman]', which was written on 18 January 1983 by M r Collis, a Director of Cembureau. SFIC submits that M r Van Hove's presence at the meeting held on 14 January 1983 confirms that the participants in the meeting intended t o comply with the Community competition rules.

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992 Sixth, FIC and SFIC stress that there is a distinction between trade between members of Cembureau and intra-Community trade. The documents on which the Commission relied in the contested decision to demonstrate the existence of the alleged Cembureau agreement relate to trade between members of Cembureau, not to intra-Community trade.

993 The Court finds that the documents referred to in recitals 19 and 4 5 of the contested decision contain no evidence that the discussions on trade between members did not relate to intra- Community trade. O n the contrary, it is clear from the 'hot spots' identified in the m e m o r a n d u m to the Chairman concerning the H e a d Delegates meeting on 19 M a r c h 1984 and from the notes on that meeting that the discussions did in fact relate to intra-Community trade (see paragraph 984 above). The argument must therefore be rejected.

994 Seventh, Cembureau, Aalborg, Irish Cement and Cementir state that the Commission did not consider that the discussions at the H e a d Delegates meeting on 30 M a y 1983 were unlawful, even though that meeting had the same purpose as the meeting of 14 January 1 9 8 3 . Cembureau and Aalborg refer in that regard to the letter of 5 April 1983 convening the meeting of 30 M a y 1983 (document 33.126/11643). Irish Cement refers to the minutes of that meeting (annex 3.20 to its application). They claim that the discussions on 14 January 1983 should therefore also be considered lawful.

996 The fact that there is no evidence that the principle of non-transhipment to internal European markets was discussed at the H e a d Delegates meeting on 30 M a y 1983 does not necessarily mean that there were n o such discussions. Having regard to the H e a d Delegates' intention to shroud their actions and/or decisions on that subject in secrecy (see paragraph 976 above), it cannot be ruled out that discussions on intra-Community trade took place in the context of the discussions relating to the item on the agenda ' 3 . Other questions'. In particular, even if such discussions had not taken place, that would provide n o grounds for excluding the specific documentary evidence examined in paragraphs 979 to 985 above and referred to in recitals 18, 19 and 45 of the contested decision, from which it is apparent that at the meeting of 14 January 1983 a concurrence of wills emerged as to the principle of non-transhipment to home markets and the regulation of sales from one country to another.

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997 Eighth, Dyckerhoff, Heracles and Titan maintain that the absence of any reference, in the various documents relied on by the Commission in connection with the Head Delegates meetings held on 19 M a r c h and 7 November 1984, to an agreement concluded on 14 January 1983 contradicts the claim that the Cembureau agreement was concluded at the meeting on 14 January 1983. CBR, FIC, Heidelberger, Lafarge and AGCI assert that the discussion of 'hot spots' at the meeting held on 19 March 1984 (memorandum to the Chairman for the Head Delegates meeting on 19 March 1984) also contradicts that claim.

999 As regards the reference to 'hot spots', it is apparent from the m e m o r a n d u m to the Chairman for the Head Delegates meeting on 19 M a r c h 1984 that trade in cement between the member countries of Cembureau, with the exception of traditional or even structural inter-state trade, was described as a 'hot spot'. The following were thus identified as 'hot spots': '[e]xports from Germany to the United Kingdom and Ireland, [e]xports from France to Germany, [e]xports from Spain to Ireland and the United Kingdom [and] ... exports from Italy to Switzerland'. These 'hot spots' do not shed a different light on the body of documentary evidence gathered by the Commission showing that the Cembureau agreement was concluded at the meeting held on 14 January 1983. They do not show that there was no Cembureau agreement, but merely that the rule of the game concerning non-transhipment to home markets and the regulation of sales from one country to another was not universally successful. The fact that an agreement is not observed by everyone does not mean that it does not exist (Mayr-Melnhof, cited in paragraph 897 above, paragraph 135).

1000 Ninth, Dyckerhoff submits that two facts contradict the argument that an agreement not to tranship to home markets was concluded on 14 January 1983:

— the fact that at the meeting on 19 March 1984 the Chairman of Cembureau considered it 'desirable gradually to reduce' the gap between extremes, by which he was referring to the prices in force in the various member countries of Cembureau (memorandum to the Chairman); and

1002 The Court points out that Dyckerhoff cannot claim that the Chairman would have had n o further need to express the desire that price gaps be gradually reduced if the Cembureau agreement had in fact been concluded on 14 January 1983: that agreement does not concern price-fixing arrangements between European cement producers. The discussions by the European cement producers during the period in question on 'fair or healthy or correct' competition (contested decision, recital 17) were not found to be an infringement in the contested decision. The object of the agreement was 'non-transhipment to home markets and the regulation of sales from one country to another, i.e. market-sharing' (contested decision, recital 4 5 , paragraph 9). Since the gap between extremes, which was between 1 and 2, inevitably constituted a 'temptation' (contested decision, recital 19, paragraph 9; m e m o r a n d u m t o the Chairman) for intra-European trade, and therefore a direct threat to the Cembureau agreement, the desire expressed by the Chairman to see that gap gradually reduced confirms the contention that the Cembureau agreement was concluded at the meeting held on 14 January 1983. The reference in the notes on the meeting of 2 April 1984 to the fact that it was pointless to 'continue the discussion within Cembureau' relates, according to the notes on that meeting, exclusively to the question of ' " r a n d o m " additional exports [from Germany] to the Netherlands and Belgium,' since 'previous discussions between H e a d Delegates had not altered this state of affairs'. At the very most, that reference shows that there had been a breach of the principle of non-transhipment to home markets, to which no solution had been found at the H e a d Delegates meetings. Such a finding cannot refute the body of documentary evidence assembled by the Commission (see paragraphs 979 to 9 8 5 above).

1005 First, Cembureau, FIC, Aalborg, Irish Cement and Cementir claim that it follows from the draft record of the Executive Committee meeting held on 9 November 1983 (contested decision, recital 17, paragraph 5; documents 33.322/286 t o 294) that the meeting of 19 M a r c h 1984 was convened in order t o deal with the problems considered at the earlier Head Delegates meeting on 30 M a y 1983, namely dumped imports from Eastern Europe and Spain and developments on the world cement markets. It could not therefore have been a question of confirming an agreement concluded at the meeting held on 14 January 1 9 8 3 . CBR, Cembureau, Ciments Luxembourgeois, Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Unicem, Heracles, Oficemen, ATIC, Titan, Italcementi and AGCI assert that no measure or decision was adopted at the meeting of 19 March 1984. They therefore deny that the alleged Cembureau agreement was confirmed at that meeting. At the very most, the documents relating t o the meeting show the existence of bilateral contacts between certain producers, but not the existence of an agreement involving the entire European cement industry.

1006 The Court points out that the draft record of the Executive Committee meeting of 9 November 1983 states:

'It was agreed that a special meeting of Head Delegates should be called to take place before the 4th Market Development Meeting (19 March 1984) to discuss problems examined at the previous meetings.'

1007 The use of the words 'previous meetings', in the plural, shows that the meeting on 19 March 1984 also dealt with the points discussed not only at the meeting of 30 May 1983 but also at the Head Delegates meeting of 14 January 1983.

Ireland, from France to Germany, from Spain to Ireland and the United Kingdom and from Italy to Switzerland are described as 'hot spots' in the memorandum to the Chairman in itself shows that those exports, unlike traditional or structural inter-State trade, or in other words controlled inter-State trade, were considered not to comply with a rule of conduct desired by the participants at the meeting. Moreover, in the notes on that meeting, non-traditional or non- structural exports are referred to as '"random" exports'. The explanation given for the 'hot spots' in the memorandum to the Chairman is as follows: 'The gap [between prices in the various member countries of Cembureau] which is between 1 and 2 inevitably constitutes a temptation. It is therefore desirable gradually to reduce the gap, essentially by increasing the lowest prices... and also by moderating high price trends.' The notes on the meeting state that it was agreed that the exchange of price information would place 'potential causes of conflict' in perspective.

1011Second, CBR claims that there is no evidence to support the Commission's assertion that, in order to implement the Cembureau agreement, action was necessary only by those undertakings involved in a 'hot spot' (contested decision, recital 45, paragraph 8, fifth subparagraph).

1012 The Court points out that in the draft introductory statement by the Chairman for the meeting of Head Delegates on 14 January 1983 it was suggested that the participants at that meeting should establish certain 'rules of the game', 'spread words of wisdom' around them and, each

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time it was necessary, hold 'multi- or bilateral discussions'. Furthermore, in the notes dated 2 April 1984 on the meeting held on 19 March 1984 it was stated that '[pressure from inter- member trade had slackened considerably through improved bilateral contacts'.

1013In the light of these various items of documentary evidence, the Commission was entitled to conclude in recital 45, paragraph 8, fifth subparagraph, of the contested decision as follows:

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trade between member countries of Cembureau which was at variance with the content of the alleged Cembureau agreement. The data in the third category were analogous to the data distributed at the meeting on 14 January 1983.

1017 The Court points out, however, that the documents showing that various types of information were distributed at the meeting on 19 M a r c h 1984 do not shed a different light on the specific documentary evidence which shows that at that meeting, as well as engaging in w h a t may have been a lawful exchange of information, the H e a d Delegates reaffirmed their concurrence of wills concerning transhipment to home markets and the regulation of sales from one country to another (see paragraphs 1008 to 1010 above).

1018 The argument alleging that there was an increase in intra-Community cement trade must also be rejected, because trade might have developed differently if there had been n o restrictive agreement (Consten and Grundig, cited in paragraph 837 above).

1019 Fifth, Cembureau and Irish Cement maintain that the references to 'potential causes of conflict' and 'pressure from inter-member trade' in the notes on the meeting of 2 April 1984 refer essentially to the danger represented by the conduct of the Spanish cement industry at that time and the general preoccupation with it. Similarly, Ciments Français maintains that where the notes on the meeting deal with trade between member countries they refer mainly to flows of cement from Spain to Ireland and the United Kingdom.

1022 That argument must be rejected. One item of evidence may relate to a number of infringements. In any event, the Commission's proof that the Cembureau agreement was confirmed at the meeting on 19 March 1984 was not based solely on the passages from the documents relating to that meeting which refer to the exchange of price information. It is clear from recital 45, paragraph 2, of the contested decision that the Commission took into account principally the discussions on tensions created by cross-frontier flows, the 'hot spots' referred to in the memorandum to the Chairman, and the conclusions set out in the notes on the meeting dated 2 April 1984, which stated that pressure from inter-member trade had slackened considerably through improved bilateral contacts and that exports had tended to shrink, although there was still a threat from outsiders.

1023 Seventh, Lafarge points out that in the notes on the meeting dated 2 April 1984 there is a reference to the desire not to set up information exchanges that would be contrary to Community competition law.

1024 T h a t argument is irrelevant. The objection upheld in Article 1 of the contested decision does not concern the exchange of information but an agreement on non-transhipment to home markets and the regulation of sales from one country to another (see paragraph 1017 above).

1025 Eighth, and last, Unicem states that the information enclosed with the letter convening the meeting of 19 March 1984 was intended for use in a possible anti-dumping action in respect of imports from Eastern Europe.

1029 First, CBR, Cembureau, FIC, Ciments Luxembourgeois, Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Heracles, Oficemen, Irish Cement, ATIC, Titan, Cementir and AGCI dispute the validity of that assertion. They argue that it follows from the documents referred to in recital 19, paragraphs 12 to 14, of the contested decision that the meeting was devoted to East European imports and world cement market developments. The Greek/Spanish agreement referred to in the 'summary notes' of 12 November 1984 relating to the H e a d Delegates meeting on 7 November 1984 (contested decision, recital 19, paragraph 14; documents 33.126/11754 and 11755) is an agreement whose sole purpose was to stabilise the prices of exports outside Europe. In addition to the documents mentioned in recital 19, paragraphs 12 to 14, of the contested decision, Cembureau refers to various tables distributed at the meeting of 7 November 1984 (contested decision, recital 19, paragraph 15; documents 33.126/11774 to 11789) and to the draft record of the meeting of the Executive Committee held on 8 N o v e m b e r 1984 (annex 4.11 to Cembureau's application). FIC also refers to the note dated 12 N o v e m b e r 1984 sent to its administrative board by M r Van Hove (contested decision, recital 4 4 , paragraph 3, in fine; documents 33.126/2063 to 2069 and 2436 to 2447), which states, in regard to the meetings of the Executive Committee and of the H e a d Delegates on 7 and 8 N o v e m b e r 1984, that 'no internal EEC problem was dealt with or raised'.

1033 The notes then conclude:

'The situation was serious and export prices damagingly low. There was surplus capacity both in West Europe and the Far East, which had to be used in a responsible manner. The Greek and Spanish cement industries were to be congratulated on their efforts to reach understanding, and other member countries were prepared, if requested, to support fully their endeavours. Small quantities expected by other countries would not disturb the market if mutual confidence prevailed.'

1034 By supporting the Greek/Spanish agreement the Head Delegates therefore pursued a double objective.

1036 In supporting the Greek/Spanish agreement the Head Delegates also sought to avoid 'the risk of a déstabilisation in Europe'. In their general conclusions they linked the risk of déstabilisation in Europe with the existence of 'surplus capacity', which, according to them, had to be used 'in a responsible manner'. At a time when prices on the world market were falling significantly, there was a real risk that European producers who normally exported their surplus production outside Europe would be tempted to seek outlets in Europe for at least part of their excess production. The objective of the meeting of Head Delegates was therefore to restore prices on the world market to 'reasonable levels' (draft record of the meeting of the executive committee held on 8 November 1984) in order to avoid such a diversion. Thus, as was also apparent from the Blue Circle internal memorandum dated 1 December 1983 (contested decision, recital 18,

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JUDGMENT OF 15. 3. 2000 - J O I N E D CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

paragraph 2; documents 33.126/11332 to 11334), non-transhipment to home markets and the channelling of exports went hand in hand.

1037 Accordingly, although the problem of cement trade between M e m b e r States was not on the agenda of the meeting held on 7 November 1984, the Commission was entitled, after properly evaluating the evidence relating t o that meeting, to conclude as follows in regard to the Cembureau agreement (contested decision, recital 4 5 , paragraph 2 , second subparagraph):

1040 Third, AGCI claims that in order to establish the existence of an unlawful agreement on non- transhipment to home markets the Commission could not rely on the fact that information had been exchanged at the meeting of 7 November 1984 on the Greek/Spanish agreement relating to the Cement Marketing Association (hereinafter 'the CMA'). First, Greek and Spanish exporters have been competing on the major export markets since the beginning of the 1970s, so that the presence of the producers of those t w o countries on those markets cannot be seen as evidence o f the implementation of the Cembureau agreement in the form of the channelling of their product to non-European countries; second, the agreement on the C M A was not called m question in the contested decision. Consequently, the Commission cannot rely on the existence of a lawful agreement in order to demonstrate the existence of another, unlawful, agreement. Titan also complains that the Commission had 'given to believe' that a lawful agreement could constitute evidence of the existence of an unlawful agreement. AGCI refers to the intervention of its representative at the meeting of the Cembureau executive committee on 9 November 1984 (contested decision, recital 17, paragraph 6) and states that to encourage cooperation m overseas markets is not objectionable under Article 85(1) of the Treaty.

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1041 The Court finds that the argument that there had been competition between Greek and Spanish producers since the 1970s does not shed a different light on the 'summary notes' dated 12 November 1984, which show that the Head Delegates supported the Greek/Spanish agreement so that 'the risk of a destabilisation in Europe [could] be avoided' and thus confirmed the Cembureau agreement (see paragraphs 1030 to 1037 above).

1045 T h a t argument must also be rejected. It should be pointed out that the Commission did not rely on the actual existence and application of the Greek/Spanish agreement in concluding that the Cembureau agreement had been confirmed at the meeting held on 7 November 1984, but only on the fact that, according to the 'summary notes' dated 12 November 1984, the participants in that meeting had unanimously considered the Greek/Spanish agreement to be the basic criterion if 'the risk of a déstabilisation in Europe [was to be] avoided'.

1046 It must be concluded that on the basis of the evidence presented in recitals 18, 19 and 45 of the contested decision the Commission was entitled to conclude that the concurrence of wills in regard to the principle of non-transhipment to home markets and the regulation of sales from one country to another was reaffirmed at the meeting held on 7 November 1984 (contested decision, recital 4 5 , paragraph 9).

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2.5. Failure to take other Head Delegates meetings into consideration

1047 Cembureau, FIC, Irish Cement and Cementir complain that, although its argument is based on the predominant role which the H e a d Delegates meetings played in the conclusion and implementation of the alleged Cembureau agreement, the Commission failed to take into consideration the H e a d Delegates meetings held on 30 M a y 1983 and 10 June 1985 and the fact that the question of intra-Community trade was not raised at those meetings. This shows that the Commission adopted an arbitrary and biased approach to selecting and analysing the evidence at its disposal. Titan complains that the Commission ignored the H e a d Delegates meeting of 30 M a y 1983, at which none of the questions at issue were raised.

1050 First, a number of applicants question the evidential value of some of the evidence on the ground that they were not aware of it before the administrative procedure.

1051 Thus Vicat contends that the Commission did not seek to establish that it w a s aware of the various documents relating to the H e a d Delegates meetings. Cementir and AGCI state that the t w o Blue Circle internal memoranda (contested decision, recital 18, paragraphs 2 and 3;

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documents 33.126/11332 to 11334 and 11335 to 11337) do not emanate from them and that at the material time neither they nor the other members of Cembureau were aware of them. AGCI adds that at the material time it was not aware of the correspondence between the Chairman of Cembureau and Mr Van Hove (contested decision, recital 19, paragraph 3; documents 33.126/11558 and 11559) or of the existence or content of the memorandum to the Chairman concerning the Head Delegates meeting of 19 March 1984 (contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729).

1053 T h e Court finds, however, that the circumstances referred to in paragraphs 1050 to 1052 above do not affect the evidential value of the documents referred t o in recitals 18, 19 and 45 of the contested decision as regards establishing the actual existence of an infringement. T h e evidential value of a document depends on its origin, the circumstances in which it was drawn up, the person to w h o m it is addressed and its content (Opinion of Judge Vesterdorf, acting as Advocate General, in Case T-1/89 Rhône-Poulenc v Commission [1991] ECR II-867, II-869, at II-956; Case T-3/89 Atochem v Commission [1991] ECR II-1177, paragraphs 31 t o 3 8 , and Case T-157/94 Empresa Nacional Siderúrgica v Commission [1999] ECR II-707, paragraph 312). The circumstances invoked by the applicants concerned may be taken into consideration at the most in assessing their participation in the infringement. T h e Court will consider below whether their participation in the Cembureau agreement was proved sufficiently in fact and in law in the contested decision.

1054 Second, Blue Circle maintains that in relying on parts of documents in the contested decision the Commission clearly distorted the sense of some of them.

1055 Blue Circle's argument is not supported by any specific evidence which would allow the Court to assess its substance. It must therefore be rejected as lacking in precision.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1058 Italcementi claims that it is impossible to prove, on the basis of the documents relating to the three H e a d Delegates meetings called in question in the contested decision, that a concurrence of wills existed between the participants in the various meetings, the documents concerned being preparatory documents, handwritten notes and m e m o r a n d a . In any event, Italcementi cannot be certain that they were submitted in full to the H e a d Delegates.

1059 The Court finds that there is a contradiction in the reasoning of most of the applicants concerned: they deny t h a t the preparatory documents for the various meetings of H e a d Delegates have any evidential value but rely on the same documents when they seek to show that the discussions at those meetings were lawful (see paragraphs 955 to 1026 above).

1061 A number of applicants claim that various documents show that the Cembureau agreement could not have been concluded at the meeting held on 14 January 1983 or confirmed at the meetings held on 19 March and 7 November 1984.

1062 First, Cembureau, FIC, Dyckerhoff, Aalborg, Irish Cement, Titan and AGCI refer to the handwritten Italcementi note on the Executive Committee meeting held in Paris on 14 April 1986 (contested decision, recital 17, paragraph 9; document 33.126/3185), which states: '... we must establish rules of the game amongst ourselves to avoid improper competition'. The fact that it was necessary to 'establish rules of the game' shows that those rules had not been adopted at the Head Delegates meeting held on 14 January 1983.

1063 T h a t argument must be rejected. The Court points out that the sentence quoted from the Italcementi note is preceded by observations relating to dumped imports. The observations immediately following that sentence also relate to dumping. Moreover, it is apparent from that document that it was the Spanish delegate, M r Bertrán, of Asland, w h o stated that it was necessary to 'establish rules of the game ... to avoid improper competition'. In that regard, it should be pointed out that an anti-dumping complaint had been lodged by the Community industry against the Spanish cement producers in April 1985 (OJ 1985 C 84, p. 5).

1066 T h a t argument must also be rejected. The document to which Titan refers deals with the problem of low prices on the major export market and the need for cooperation between members of Cembureau to face up to that problem. Since the cooperation to which M r Bertrán referred at the Executive Committee meeting on 9 November 1983 concerned the market outside Europe, the statement in question is not of such a nature as to shed a different light on the evidence on which the Commission relied in recitals 18, 19 and 4 5 of the contested decision (see, in particular, paragraphs 979 to 985 above).

1067 Third, Ciments Français considers that the Commission's argument that the Cembureau agreement was concluded by Cembureau and its members at the meeting of H e a d Delegates on 14 January 1 9 8 3 , then confirmed at the meeting held on 19 M a r c h 1984, is irreconcilable with the fact that in the case of Holderbank and the Spanish, Portuguese and Norwegian producers w h o participated in that meeting the Commission states that it had no evidence that their participation in the Cembureau agreement had any effect within the Community before 1986 (contested decision, recital 6 5 , paragraph 4).

1068 T h a t argument is irrelevant. Even supposing that the Commission erred or was inconsistent in its attribution of the infringement referred to in Article 1 of the contested decision to Holderbank, Aker and the Spanish and Portuguese undertakings and associations, that would not affect the probative value of the evidence referred to in recitals 18, 19 and 45 of the contested decision, which shows that a concurrence of wills on non-transhipment to home markets and the regulation of sales from one country to another was apparent at the Head Delegates meetings held on 14 January 1983, 19 M a r c h and 7 November 1984 (see, in particular, paragraphs 979 to 9 8 5 , 1008 to 1010, and 1030 to 1037 above).

1071 First, CBR, FIC, Dyckerhoff, Heidelberger and Italcementi submit that the Commission could not characterise the Cembureau agreement as an agreement within the meaning of Article 85(1) of the Treaty. CBR considers that the Commission has not shown the expressions of will which distinguish an agreement from a concerted practice. The mere fact that Cembureau encouraged the adoption of certain good neighbour rules does not, in the absence of proof of the adhesion of the members of Cembureau, show that they agreed to subscribe to such a suggestion. Dyckerhoff, Heidelberger and Italcementi maintain that the Commission did not provide evidence that the views of the various participants converged at the meetings of Head Delegates in regard t o the subject-matter of the discussions. FIC claims that the vague and inconsistent nature of the terminology used by the author of the Blue Circle internal memoranda t o describe the alleged Cembureau agreement shows that the precise characterisation of that agreement is uncertain.

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JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1074 The Court points out that the draft introductory statement of the Chairman for the meeting of 14 January 1983 requested the participants in the meeting to 'spread words of wisdom around [them]'. In that respect, the manifestation of a concurrence of wills at the meetings of H e a d Delegates did not depend on any communication by the H e a d Delegates of 'words of wisdom' to the indirect members of Cembureau after the meeting. However, the fact that the indirect members of Cembureau may in particular cases have been unaware of the 'rules of the game' agreed at the H e a d Delegates meeting on 14 January 1983 is material to the question whether they adhered to the Cembureau agreement. T h a t question will be considered below.

1075 Third, Italcementi claims that the bilateral measures called in question in the contested decision are n o t of such a nature as to prove the existence of an unlawful agreement involving the entire European cement industry. The existence of a concurrence of wills cannot be proved by the implementation of such a c o m m o n intention.

1076 T h a t argument must be rejected. It is sufficient to point out that the existence of the Cembureau agreement was properly established in the contested decision on the basis of the specific documentary evidence referred to in recitals 1 8 , 1 9 and 4 5 (see, in particular, paragraphs 979 to 9 8 5 , 1008 to 1010 and 1030 to 1037 above). The Commission did not therefore rely on the implementing measures alleged against the various addressees of the contested decision in order to prove the existence of the Cembureau agreement, even though, according to the contested decision, those measures confirm the existence of the concurrence of wills on non-transhipment t o home markets and the regulation of cement sales from one country to another (contested decision, recital 4 5 , paragraph 5).

memorandum expressly states that the discussions did not concern exports from Germany and Belgium to the Netherlands. No other document relating to the Head Delegates meetings refers to the situation on the Netherlands market.

1080 The Court points out, however, that there is nothing in the documents before it to show that a national market represented within Cembureau escaped the application of the agreement concluded on 14 January 1983 and confirmed on 19 March and 7 November 1984.

1082 It follows that the argument put forward by ENCI and V N C must be rejected.

1083 AGCI claims that the Cembureau agreement in reality represents the c o m m o n position adopted by a restricted group of undertakings, namely the 'group of eight', which constituted the 'hard core' of the ETF (contested decision, recital 2 5 , paragraph 2 1 ; document 33.126/18848). Acting exclusively in their own interest and without the knowledge of the other members of Cembureau, those eight undertakings sought to combine in order to meet imports from other Member States, such as Greece. O n this point, AGCI refers to various factors (the fact that the Directors of Cembureau participated in the meetings setting up the ETF held in Rome on 28 May 1986 and in Zurich and Celigny from 3 to 5 June 1986; the fact that a confidential copy of the minutes of the meetings of the EPC was sent to Blue Circle; and the fact that the Chairman of Cembureau and the Chairman of the EPC belonged to Blue Circle) which, in its view, show that the Cembureau board worked under the direction and on behalf of that restricted circle of large producers, independently of the other members of Cembureau, without their knowledge and against their interests. Titan criticises the Commission for not examining what was meant by the expression 'group of eight'.

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JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1084 T h a t argument does not refute the specific documentary evidence referred to in paragraphs 979 to 9 8 5 above, which shows unequivocally that the Cembureau agreement was concluded in January 1983 — well before the emergence of the 'Greek threat', which only materialised after 1986 — not in the restricted framework of a group of undertakings but in that of a meeting of Cembureau H e a d Delegates attended by the representatives of all the European cement industry and, in particular, a representative of AGCI. T h a t undertaking's argument must therefore be rejected.

1087 Ciments Luxembourgeois, Dyckerhoff, Lafarge, Aalborg, Alsen-Breitenburg, Nordcement, Unicem, Castle, Uniland, Oficemen, Irish Cement, Cimpor, SECIL, Italcementi, Aker, E U R O C , Cementir and Blue Circle claim that the existence of an agreement must be assessed in its economic context. The explanation for the low level of trade in cement is not the existence of an agreement not to tranship to home markets but a series of economic reasons, such as the high costs of transport and harbour charges, the specification rules, administrative barriers and the cost of investing in exports. Furthermore, economic reality shows that the applicants had n o interest in concluding the Cembureau agreement and that if such an agreement had been concluded it could not have significantly restricted competition. As regards the United Kingdom market, Blue Circle further states that the Commission itself took the view in the SO (point 74(7)) that the restrictions imposed by the C P M A (see paragraph 91 above) had the effect of isolating and dividing the national market and making it difficult, or even impossible, for Continental producers to penetrate that market. Aalborg and Blue Circle complain that the Commission, in assessing the evidence relating to the existence of the Cembureau agreement, failed to take into consideration the increase in crossborder trade in cement during the material period.

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1089 Aalborg's and Blue Circle's argument based on the alleged increase in the intra-Community trade in cement must be rejected for the reasons set out in paragraph 1018 above.

1090 Heidelberger, Titan and Italcementi complain that the Commission failed to consider whether the behaviour of operators on the market could be explained otherwise than by collusion.

1091 The Court points out, however, that as the Commission did not base the existence of the agreement on parallel conduct observed on the market, but on documentary evidence proving an agreement (see, in particular, paragraphs 979 to 985, 1008 to 1010 and 1030 to 1037 above) it was not required to examine whether the operators' behaviour on the market could be explained otherwise than by that agreement.

1092 Last, Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Aalborg, Unicem, Buzzi, Asland, Castle, Uniland, Oficemen, Irish Cement, Italcementi, Aker, E U R O C , Cementir and Blue Circle assert that, contrary to what is stated in the contested decision (recital 11, paragraphs 1 and 7), Europe was not the relevant geographical market. They submit that the cement market at the material time consisted of a mosaic of strictly delimited regional markets which did not overlap and were completely independent of one another.

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JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

B — Infringement of Article 190 of the Treaty

1096 Cembureau (T-26/95) claims that the Commission failed to explain, either in 'The Facts' of the contested decision or in its 'Legal Assessment', the extent to which the various items of evidence of the conclusion and confirmation of the alleged Cembureau agreement related to each other. It suspects that the Commission wished to compensate for that failure and therefore changed its argument and established a link between the various items of evidence for the first time i n its defence.

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1097 T h e Court observes that in recital 4 5 of the contested decision, which is entitled ' N o n - transhipment to home markets' and appears in the 'Legal Assessment', the Commission maintains at the outset (paragraph 1):

'At the meeting of Head Delegates held on 14 January 1983, Cembureau and its members reached an agreement on non-transhipment to domestic markets and on the regulation of sales from one country to another ...'

1100Furthermore, in recital 4 5 the Commission refers to various specific items of evidence in support of its argument. It maintains in particular (paragraph 1) that the purpose and content of the Cembureau agreement are evident from the letter convening the meeting of Head Delegates held on 14 January 1983 (contested decision, recital 19, paragraph 2; documents 33.126/11552 and 11553) and from the Chairman's draft introductory statement for that meeting (contested decision, recital 19, paragraph 5; documents 33.126/11583 to 11585). It also relies (paragraph 2) on the notes on the meeting dated 2 April 1984 (contested decision, recital 19, paragraph 10; documents 33.126/11733 to 11737) to snow that the Cembureau agreement was confirmed at the meeting of Head Delegates on 19 March 1984, and on the 'summary notes' dated 12 November 1984 (contested decision, recital 19, paragraph 14; documents 33.126/11754 and 11755) in concluding that it was confirmed again at the meeting of Head Delegates held on 7 November 1984. The Commission then states (paragraph 3) that the existence of the Cembureau agreement and its content are confirmed by the internal Blue Circle memoranda to which it refers in recital 18, paragraphs 2 and 3, of the contested decision (documents 33.126/11332 to 11334 and 11335 to 11337). It considers (paragraph 4) that Cembureau itself indirectly admitted to the existence of the Cembureau agreement in the statement which it made on the occasion of an investigation pursuant to Article 14 of Regulation N o 17 and in its reply to the statement of objections pursuant to Article 15(1) of Regulation N o 17 (contested decision, recital 18, paragraph 4; documents 33.126/11525 and 13568 to 13573). It adds (paragraph 6) that, according to the statement dated 25 June 1986 by the Chairman of Heracles (contested decision, recital 18, paragraph 5; documents 33.126/19875 to 19877), the agreement not to tranship to internal markets had existed for some 30 years. However, since it did not have any other evidence to confirm that the conduct in question had lasted so long, it considered that the Cembureau agreement took effect only on 14 January 1983, the date of the Head Delegates meeting.

1104 Dyckerhoff considers that it is contradictory to consider, on the one hand, that the Cembureau agreement became binding on all the direct and indirect members of Cembureau on 14 January 1983 and, on the other, that the agreement was confirmed at the subsequent meetings of H e a d Delegates.

1105 The Court points out, however, that the Commission did not contradict itself by stating that the concurrence of wills which emerged at the meeting held on 14 January 1983 was confirmed at the meetings held on 19 M a r c h and 7 November 1984. The confirmation of an agreement necessarily supposes that it was concluded beforehand.

1106 SFIC (T-36/95) maintains that the reasoning on which the contested decision is based is circular. In order to demonstrate the existence of the Cembureau agreement the Commission presents a number of decentralised acts, which in reality are not anti-competitive in nature, as measures implementing that agreement. SFIC claims that in the SO the Commission, using the existence of national agreements, had already reasoned from the base upwards in order to call in question the Cembureau agreement and that its reasoning became specious once it had dropped the proceedings relating to the national objections.

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1107 That argument must also be rejected. It follows unequivocally both from the SO (points 9 and 61(a)) and from the contested decision (recitals 18, 19 and 45) that at the outset the Commission established the existence of the Cembureau agreement on the basis of a body of consistent specific documentary evidence, not on the existence of decentralised local, bilateral or multilateral agreements.

1110Italcementi (T-65/95) and Blue Circle (T-88/95) complain that during the administrative procedure they were not given access to certain incriminating documents which were invoked in recital 19 of the contested decision to support the finding of the infringement referred to in Article 1 of the contested decision (1). In the observations which they filed following the measures of 2 October 1996 and 18 and 19 June 1997, CBR (T-25/95), Cembureau (T-26/95), FIC (T-30/95), ENCI (T-31/95), VNC (T-32/95), Dyckerhoff (T-35/95), SFIC (T-36/95), Vicat (T-37/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), BDZ (T-48/95), Unicem (T-50/95), Buzzi (T-51/95), Rugby (T-53/95), Asland (T-55/95), Castle (T-56/95), Heracles (T-57/95), Uniland (T-58/95), Oficemen (T-59/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL (T-62/95), ATIC (T-63/95), Titan (T-64/95), Italcementi, Holderbank (T-68/95), Hornos Ibéricos (T-69/95), Aker (T-70/95), EUROC (T-71/95), Cementir (T-87/95) and Blue Circle maintain that during the administrative procedure they were not given access to exculpatory evidence relating to the infringement referred to in Article 1 of the contested decision (2).

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/9J TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1. Incriminating evidence

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1115 Similarly, in the observations which they lodged following the measure of 18 and 19 June 1997, Dyckerhoff, Aalborg, Unicem, Heracles, Italcementi, Cementir and Blue Circle state that there is no reference to a Cembureau agreement in the 'remainder' of the investigation file.

1116 The Court points out again that in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) the Commission established the existence of the Cembureau agreement on the basis of specific documentary evidence. The argument set out in paragraphs 1114 and 1115 above must be rejected, because the applicants concerned fail to explain how the absence of any direct or indirect reference to the Cembureau agreement in the documents to which they were not given access during the administrative procedure is of such a nature as to shed a different light on that specific documentary evidence.

ins In support of their arguments, CBR refers to documents 33.126/5626 to 5636, 5641 to 5644, 5648 to 5663, 5682 to 5694, 5699 to 5702, 5705 to 5724 and 13484 to 13486; Cembureau to documents 33.126/5626, 5627, 5638, 5644, 5653, 5658, 5661, 5668, 5673, 5674, 5678, 5689, 5690, 5695, 5696, 5699, 5700, 5712, 5713, 5718, 5722, 5727, 5728, 5746, 5748, 13485, 13495, 13545 and 13557; FIC to documents 33.126/5660 to 5674, 5677 to 5679, 5680, 5681 and 13495 and 13497; ENCI and VNC to documents 33.126/5626 to 5634, 5651 to 5656, 5660 to 5663, 5671 to 5674, 5682 to 5687, 5705 to 5708, 5712 and 5713; Dyckerhoff to documents 33.126/5637 to 5644, 5651 to 5669, 5671 to 5674, 5676 to 5681, 5695 to 5698, 5709 to 5724, 5734 to 5737, 5741 to 5746, 13484 to 13486, 13511 and 13512; Aalborg to documents 33.126/5626 to 5637, 5641, 5644, 5657 to 5659, 5671, 5674 and 13484 to 13486; Irish Cement to documents 33.126/5626, 5627, 5638, 5644, 5653, 5658, 5661, 5668, 5673, 5674, 5678, 5684, 5689, 5690, 5695, 5696, 5699, 5700, 5712, 5713, 5718, 5722, 5727, 5728, 5746, 5748, 13485, 13495, 13545 and 13557; Italcementi to documents 33.126/5651, 5653, 5680, 5681, 5705, 5706, 13484, 13485, 13487, 13500, 13503 and 13506; Cementir to documents 33.126/5626 to 5634 and 5682 to 5687; and Blue Circle to documents 33.126/5671 to 5724, 13498 to 13509, 13532 and 13542.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1122 Third, in the observations which they lodged following the measure of 18 and 19 June 1997 CBR, Cembureau, FIC, Dyckerhoff, SFIC, Heidelberger, Lafarge, Aalborg, BDZ, Unicem, Heracles, Uniland, Oficemen, Irish Cement, SECIL, ATIC, Italcementi and Cementir maintain that the note by M r Toscano Jr (of Cimpor) dated 17 February 1983 concerning the H e a d Delegates meeting on 14 January 1983 (documents 33.322/314 to 344) would have been of use to their defence, because it supported their argument that the principle of not transhipping to home markets was not discussed at that meeting. The document confirms their contention that problems of dumping were discussed at that meeting. As the note in question is a Cimpor internal note, there is n o reason to assume that it does not give an accurate account of all the exchanges of views which t o o k place at the meeting of 14 January 1 9 8 3 . At the hearing, Ciments Luxembourgeois, which did not lodge observations following the measures of 2 October 1996 and 18 and 19 June 1997 (see paragraph 170 above), referred to M r Toscano Jr's note to support its allegation that there had been a breach of its rights of defence during the administrative procedure.

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1123 As the Commission acknowledged at the hearing (see paragraph 153 above), M r Toscano Jr's note of 17 February 1983 is relevant to the infringement round in Article 1 of the contested decision: it relates to the Head Delegates meeting of 14 January 1983.

1124 The Court must therefore assess whether, in the light of the evidence adduced by the Commission in support of the objection upheld in Article 1 of the contested decision, the document would have had even a small chance of altering the outcome of the administrative procedure if the applicants concerned had been able to rely on it during that procedure (see paragraph 2 4 7 above).

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/9S, T-103/95 AND T-104/95

the context of the problems of dumping discussed at the meeting: 'Mr Van Hove, of the Liaison Committee of the EEC cement industries, presented an analysis of the common market rules on protection against dumping and observed that all members of the EEC are associated in Cembureau. His analysis is in annex 8.'

1130 In those circumstances, Mr Toscano Jr's note cannot be considered an accurate and exhaustive account of the discussions which took place at the meeting of 14 January 1983. At the very most, the document in question proves that the problem of dumped imports was discussed, a point which has never been disputed by the Commission (see paragraph 986 above). It does not show, however, that the discussions were confined to that point. The note is therefore not of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18,19 and 45), which shows that at the meeting of Head Delegates held on 14 January 1983 a concurrence of wills emerged on the rule of non-transhipment to home markets and the regulation of sales from one country to another.

1132 The Court concludes, therefore, that if the applicants concerned had had access to Mr Toscano Jr's note during the administrative procedure the comments which they could have made on the basis of that note would not have had even a small chance of altering the outcome of the administrative procedure. Accordingly, the fact that the document was not made available to the applicants concerned during the administrative procedure did not prejudice their defence (see paragraph 247 above).

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2.2. Case T-25/95 CBR v Commission

1135 For the sake of completeness, the Court points out that far from supporting CBR's argument, the documents to which it refers show that cement is the subject of cross-border trade and that intra-Community imports exercise competitive pressure. Last, even if it should transpire that there was no 'significant g a p ' between selling prices in Belgium and France in 1983, 1984 and 1985 (document 33.126/4115 mentioned in paragraph 1133 above), that circumstance would not be of such a nature as to affect the definition of the geographical reference market adopted in the contested decision.

1136 As regards, second, the existence of the Cembureau agreement, CBR states in its observations of 10 February 1997 that the dates of the alleged national agreements and concerted practices do not coincide with the date of the alleged Cembureau agreement. It refers in that regard t o Norcim's internal rules (documents 33.126/5626 to 5634) and to various documents relating t o the alleged United Kingdom agreement and concerted practice (documents 33.126/17017 to 17015).

1137 However, the difference between the dates on which the national agreements and the Cembureau agreement were concluded is not of such a nature as to shed a différent light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and

II - 795

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

in the contested decision (recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement. Even supposing, moreover, that such an argument would have enabled the applicant to demonstrate the absence of any link between the national agreements and concerted practices and the Cembureau agreement, the fact that it did not have access to the documents in question could not prejudice its defence, as ultimately the national objections were not referred to in the contested decision and, in establishing the existence of the Cembureau agreement, the Commission did not rely on a finding that the national agreements and concerted practices existed.

1140 As regards the m e m o r a n d u m dated 16 June 1982, CBR considers it relevant that it states: 'Indép. All forte pression et CBR a refusé de leur tordre le cou comme demandait D ' . [Indep. Germ, strong pressure and CBR refused to twist their necks as D . requested]. N o n e the less, the Court points out that the Cembureau agreement did not prohibit all cement exports to a member country of Cembureau. The principle of non-transhipment to home markets did not prohibit 'traditional or even structural inter-State trade' (memorandum to the Chairman for the meeting of H e a d Delegates held on 19 M a r c h 1984; contested decision, recital 19, paragraph 9; documents 33.126/11728 to 11729), but was opposed to ' r a n d o m ' exports, that is to say, uncontrolled or unregulated exports. ' R a n d o m ' exports from Germany to Belgium were expressly referred to at the meeting held on 19 M a r c h 1984 (notes on the meeting of H e a d Delegates held on 19 M a r c h 1984; contested decision, recital 19, paragraph 10; documents 33.126/11733 to 11737). The fact that there were German imports into Belgium in a particular case was therefore not of such a nature as to shed a different light on the specific documentary evidence of the existence of the Cembureau agreement.

1141 As regards the internal Lafarge memorandum dated 1 December 1982, CBR relies on an extract from this memorandum which states that Mr Van Hove 'seems to attach too much importance to what the EEC says'. However, it is important to place that extract in the context of the passage in the memorandum from which it is taken: 'He [Mr Van Hove] seems to attach too much importance to what the EEC says; is this because of proximity or rather with an idea at the back of his mind: to unlock the borders without being denounced by the trade as the instigator of disorder.' It is apparent, therefore, that, far from showing that the Cembureau agreement did not exist, the memorandum to which CBR refers confirms that 'lock[ed] ... borders' were a reality and that it was necessary to avoid 'disorder' on the market.

1145 Second, in its observations of 10 February 1997 Cembureau maintains that various documents relating to the national objections provide reasons capable of contradicting the Commission's allegations that the European cement market was artificially partitioned as a result of the alleged international agreement and concerted practice. It refers, first, to two extracts from point 49 in Chapter 6 of the SO, on Germany, and to a number of documents in the file on Germany dealing with fines imposed by the Bundeskartellamt on various national producers in respect of illegal cartels during the 1980s. These various documents prove the existence of national cartels but not the existence of a European cartel. As regards the file on the United Kingdom, there is no proof that the cement industry was concerned with imports before the Greek problem arose in 1986. That file therefore makes it even less certain that imports from Germany represented a threat which might have been discussed at the Head Delegates meeting held on 19 March 1984. It is also apparent from a number of documents in the file on the United Kingdom (documents 33.126/17073 to 17075, 17080 to 1 7 0 9 1 , 17160 to 17174, 17178, 17179, 17203 to 17205, 17624, 17625, 17631 to 17633 and 17641 to 17654) that at that time the CMF and its members were extremely anxious to comply with Community competition law and that for that purpose detailed legal opinions had been obtained and regular contact maintained with the United Kingdom and European authorities. Access to the file on Italy would have allowed Cembureau to argue that the low level of imports on that market was

1146 The Court points out, however, that none of the observations which Cembureau considers it would have been able to make on the basis of the documents to which it refers would have been of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement. Furthermore, the fact that in the file on the United Kingdom there is n o reference to the United Kingdom producers' being concerned with imports before 1986 would not have undermined the evidential value of the m e m o r a n d u m to the Chairman of Cembureau for the meeting held on 19 M a r c h 1984 (SO, point 9, paragraph (b); contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729), in which it is stated that the then 'hot spots' included '[e]xports from Germany to the United Kingdom and Ireland'.

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CIMENTERIES CBR AND OTHERS V COMMISSION

decision, recital 17, paragraph 9; document 33.126/3185) concerned the question of antidumping measures, not the alleged Cembureau agreement. Last, Cembureau maintains that although the file on Portugal contains a number of references to Cembureau meetings (documents 33.322/88, 89, 92 and 96) there is no reason to suppose that those meetings were linked with the alleged Cembureau agreement.

1148 The Court points out, however, that the discussions on the need for technical specifications for imported cement in the interests of consumers are not of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in concluding that the Cembureau agreement existed. The same applies to the circumstance that the alleged surplus production on the United Kingdom market restricted imports until 1986.

1150 Fourth, Cembureau claims in its observations of 28 November 1997 that the meeting held on 14 January 1983 primarily concerned dumping and that this topic was considered and discussed both under point 1 ('Imports from Eastern Europe') and under point 2 ('Intra- European trade') on the agenda of that meeting (contested decision, recital 19, paragraph 3; document 33.126/11656). Point 2 on the agenda was also devoted to a series of legal questions concerning competition and intra-Community trade, including a presentation of the basing point system (the BPS notified to the Commission in 1981) in the light of Articles 85 and 86 of the Treaty. Cembureau maintains that a number of documents to which it did not have access during the administrative procedure thus cast further doubt on the Commission's view that point 2 of the agenda dealt with discussions which led to the conclusion of the Cembureau agreement. In that regard, Cembureau refers to documents 33.126/15443 to 15528 (documents relating to a Franco-German meeting on 6 and 7 December 1983), documents 33.126/8164 to 8166 (draft record of the meeting of the Administrative Board of CBR held on 15 September 1983) and documents 33.126/5295 and 5296 (memorandum from M r Steinbach dated 13 M a y

II - 7 9 9

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1983 concerning antidumping measures against the German Democratic Republic, Poland, Czechoslovakia, Yugoslavia and Spain).

1153 FIC also maintains that after reading the national chapters it could see that there were 'natural barriers' to imports, namely the fact that numerous cement producers in the States in question h a d subsidiaries both in their country of origin and in other C o m m u n i t y countries (concentration of supply at the level of large international groups) and that the majority of these producers had facilities for making ready-mixed concrete, thus controlling a significant part of demand for cement in their respective countries (policy of vertical integration) (SO, Chapter 3, point 32 (Italian market), Chapter 4, point 3 7 (United Kingdom market), Chapter 5, point 4 2 (French market), Chapter 6, points 4 7 and 48 (German market) and Chapter 8, point 54 (Spanish market)). FIC considers that if it had had access to those documents during the administrative procedure it would have been able to submit in its defence that, as the

II - 800

CIMENTERIES CBR AND OTHERS V COMMISSION'

undertakings had economic reasons for not exporting, they had no need to adopt an illegal principle in order to guard against what was clearly a very slight risk.

1158 The Court points out that in the contested decision the Commission rejected the argument that ' " t h e suggestions put forward with the aim of ensuring fair competition" were none other than the suggestions put forward to the Commission under the notification procedure carried out by the Belgian and Dutch cement producers on 16 July 1 9 8 1 ' (contested decision, recital 17, paragraph 4). Moreover, the 'suggestions for fair competition' are not part of the evidence on which the Commission relied to establish the existence of the Cembureau agreement. Those suggestions are referred to, in recital 17, paragraph 3, of the contested decision, solely in order to illustrate the discussions on 'fair or healthy or correct' competition, discussions which were not ultimately found in the contested decision to be an infringement. Consequently, the

II - 801

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/9J, T-48/95, T-50/95 TO T-6J/9J, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

observations which FIC could have made, if it had had access to the documents which it invokes in relation to that point, could not have altered the outcome of the administrative procedure.

1159 Fourth, in its observations of 20 January 1998 FIC asserts that a Heidelberger note on the meetings of Head Delegates and of the Executive Committee on 7 and 8 November 1984 (documents 33.126/5312 to 5315) show that only questions concerning prices on overseas export markets and dumped imports from countries or the East were dealt with at the meeting on 7 November 1984. At no point in that meeting was the Cembureau principle of non- transhipment to home markets confirmed.

1161 Fifth, FIC submits in its observations of 10 February 1997 that the documents in the national files constitute fresh evidence that the members of Cembureau intended to comply with the rules of competition law. Thus it is apparent from the documents concerning the chapter of the SO on the United Kingdom that the United Kingdom cement industry was always scrupulously careful to comply with the law, in particular competition law. FIC refers in that regard to the minutes of the meetings of the CMF held on 4 September 1985 (documents 33.126/17086 to 17091), 2 October 1985 (documents 33.126/17092 to 17098), 16 October 1985 (documents 33.126/17099 to 17102), 6 August 1986 (documents 33.126/17160 to 17165), 3 September 1986 (documents 33.126/17166 to 17172), 16 September 1986 (documents 33.126/17173 and 17174), 5 November 1986 (documents 33.126/17180 to 17184), 11 February 1987 (docu- ments 33.126/17203 to 17205; see also press release dated 12 February 1987 concerning that meeting (document 33.126/17858)) and 4 March 1987 (documents 33.126/17206 to 17209). In the light of the CMF's constant concern to avoid any infringement of competition law, it is difficult to accept that it could have agreed to infringe those rules by concluding the Cembureau agreement. In its observations of 20 January 1998 FIC relies on a number of documents which, in its view, clearly convey the European cement industries' intention to comply with competition law and which would therefore have constituted a good deal of evidence of use to its defence during the administrative procedure. It refers, first, to a Hispacement document of August 1984 (documents 33.322/3081 to 3087) concerning a discussion of the agreement envisaged between Spanish and Greek producers concerning the CMA (see paragraph 1040

1162 T h e Court observes, however, that access to the various documents referred t o by FIC, which allegedly convey the concern of the various parties (the CMF, the parties to the agreement on the C M A , M r Bertrán of Asland, and Heidelberger) t o comply with competition law, would not in any way have enabled it to convince the Commission of its own intention always to act in accordance with the law. In any event, none of those documents, which relate to national aspects (documents 33.126/17086 t o 17102, 17160 to 17174, 17180 t o 1 7 1 8 4 , 1 7 2 0 3 to 17209 and 17858), the overseas export policy (documents 33.322/3081 to 3087), the anti-dumping measures (documents 33.126/3190 to 3196) or concentrations of undertakings (documents 33.126/5312 to 5315) rather than to intra-Community trade, would have shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement.

II - 803

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

that Cembureau had no coordinating or initiating role in combating imports from Greece was further confirmation that the alleged Cembureau agreement did not exist.

1164 The Court points out that in concluding that the Cembureau agreement existed the Commission did not rely on Cembureau's involvement in measures to monitor imports, in particular measures designed to resolve the problem caused by imports from Greece, but, rather, on specific documentary evidence. The various documents on which FIC relies could not have shed a different light on that evidence.

1165 Seventh, and last, in its observations of 10 February 1997 FIC relies on the record of the meeting of the Executive Committee of Oficemen held on 13 February 1986 (documents 33.322/1311 to 1318), as confirmation that the only plausible explanation for the reference in the Italcementi note on the meeting of the Executive Committee of Cembureau held on 14 April 1986 (contested decision, recital 17, paragraph 9; document 33.126/3185) to the need to adopt 'rules of the game' to avoid 'improper competition' was to be found in the fight against dumped imports from the East rather than in any principle of non-transhipment to home markets within the Community, which the Commission has always refused to accept.

1166 However, for the reasons given in paragraph 1149 above, that argument would not have been of such a nature as to alter the outcome of the administrative procedure.

held on 26 June 1987 (documents 33.126/375 to 379), which mention imports into the Netherlands of cement from Spain and France. At point 2 of the minutes it is also stated: 'Retaliatory measures against Spanish cement manufacturers are difficult to envisage, while those against French producers are being reviewed pending a later decision.' Second, ENCI and VNC refer to the document of the Compagnie des Ciments Belges ('the CCB') entitled 'Basic information 1987' (documents 33.126/1629 and 1634 to 1641), which observes in regard to the cement market: '[In the Netherlands) competition from certain brands of German cement is still very keen on the market. In Zealand we are finding French bagged cement' (point 1.1.2). In the same document it is added (points 2.1.1 and 2.1.2): 'The extended crisis in building and public works means that competition, in particular German competition, is very active [on the Belgian and Netherlands markets].' The document also refers to cement exports to the Netherlands by the CCB (point 4.1). Third, the applicants refer to the CCB document entitled 'Annual information 1989' (documents 33.126/1768 to 1783), which confirms as follows in regard to the Netherlands (point 1.1.2): 'Competition from certain brands of German cement is still very keen on the market. In Zealand we are finding French cement in bags and in bulk. There are also imports of Spanish and Greek cement and, in smaller quantities, imports of cement from the GDR, Poland and Yugoslavia.' This document states (points 2.1.1 and 2.1.2) that 'in spite of a significant resumption of construction in 1988, German competition is still present' on the Belgian and Netherlands markets, and that in the Netherlands 'Spanish and Greek cement has also appeared'. Fourth, and last, the applicants refer to a Heidelberger document (document 33.126/3447), in which it is stated that sales by Heidelberger on the Netherlands market rose by 36.6% in 1987.

II - 805

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2.6. Case T-35/95 Dyckerhoff v Commission

1172 The Court points out, however, that, for the reasons given in paragraph 1154 above, those arguments would not have been of such a nature as to alter the outcome of the administrative procedure.

1173 Second, in its observations of 5 January 1998 Dyckerhoff claims that documents 33.126/272 to 275, 719, 1852, 4125 to 4127, 5926, 5938, 6888, 6897, 7129, 14627, 14630, 14637, 14661 14663, 14691, 14711 and 18173 show that there was export activity despite the natural barriers to the market that otherwise existed. Those activities were not criticised or censured within Cembureau and that is at variance with the existence of the Cembureau agreement.

1174 The Court points out that the principle of non-transhipment to home markets did not prohibit 'traditional or even structural inter-State trade, e.g. exports from Germany and Belgium to the Netherlands' (memorandum to the Chairman for the meeting of Head Delegates held on 19 March 1984) but was opposed to 'random' exports (notes on the meeting of Head Delegates held on 19 March 1984), namely uncontrolled or unregulated exports. The fact that there may have been exports in a specific case is not therefore of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and

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CIMENTERIES CBR AND OTHERS V COMMISSION

61) and in the contested decision (recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement.

1176 The Court finds, however, that the various documents to which Dyckerhoff refers do not show that its rights of defence were infringed. The absence of any reference to the Cembureau agreement, the fact that some national agreements and concerted practices predated that agreement and the fact that the national associations and national groups were preoccupied with imports from other Member States are not of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing that the Cembureau agreement existed.

1177 Furthermore, if the applicant had been able to show during the administrative procedure, on the basis of the documents referred to in paragraph 1175 above, that there was no link between the national agreements and concerted practices and the Cembureau agreement, that would not have altered the outcome of that procedure, since the proof of the existence of the Cembureau agreement does not in any way depend on the existence of the national agreements and concerted practices.

II - 807

JUDGMENT OF 15. 3. 2000 - J O I N E D CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1179 Fourth, in its observations of 5 January 1998 Dyckerhoff claims that various documents show that protection against dumped cement imports from Eastern Europe was uppermost m the minds of the European industry in the meetings and discussions reported in 1983 and 1984. It refers in that regard to the letter dated 16 November 1982 containing an invitation to the Head Delegates meeting on 14 January 1983 (document 33.322/346), the minutes of the meeting of FIC held on 8 December 1982 (documents 33.126/2026 to 2033), the minutes of the Franco- German meeting held on 6 and 7 December 1983 (documents 33.126/15494 to 15496), the minutes of the meeting of the Board of Directors of FIC held on 10 October 1984 (documents 33.126/2056 to 2062), the minutes of the meeting of the Executive Committee of Cembureau held on 8 November 1984 (documents 33.126/10485 and 10486), documents from BDZ (documents 33.126/5198 to 5208 and 5243 to 5251), an internal Blue Circle memorandum (documents 33.126/10840 and 10841) and a letter from Heidelberger to Cembureau dated 1 December 1987 (documents 33.126/3604 and 3605).

1180However, those documents are not of such a nature as to shed a different light on the various items of specific documentary evidence referred to in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45), which show that at the meeting of 14 January 1983 the Head Delegates agreed on the principle of non-transhipment to home markets and the regulation of sales from one country to another. At the very most, the documents in question prove that the problems of dumping and cement imports from Eastern Europe were also discussed at the meeting of 14 January 1983, a point which the Commission has never disputed (see contested decision, recital 19, paragraphs 2 to 15). Consequently, any observations which the applicant might have been able to make had it had access to the documents in question could not have altered the outcome of the administrative procedure.

1182 In its observations of 7 January 1998 SFIC also relies on a series of documents to which it was granted access following the measure of 18 and 19 June 1997 (documents 33.126/623 to 632, 673, 674, 730, 1175 to 1178, 1219 to 1221, 1552 to 1554, 1960, 1961, 2026 to 2028, 2050, 2051, 2058, 2066, 2084, 2545 to 2553, 2591 to 2609, 2682, 2683, 5038 to 5051, 5105 to 5119, 8098 to 8104, 8131, 8132, 8146 to 8148, 8151, 9031 to 9048, 9050 to 9053, 9068 to 9074 and 9103 to 9112) as showing that the discussions at the meeting of 14 January 1983 on price formation systems, in particular the BPS introduced by the Belgian, Netherlands and German industries, were lawful. According to SFIC, it is also clear from one or other of documents 33.126/2545 to 2553, 2591 to 2609, 2682, 2683, 9050 to 9053, 9068 to 9074 and 9103 to 9112 that examination of the applicability of the BPS and the Commission's analysis of its compatibility with European competition law were not limited to the Belgian, Netherlands and German markets but concerned all the Community markets. Accordingly, SFIC should have been given access to those documents during the administrative procedure and would thereby have been in a position to put forward solid facts to support its assertions that the Commission was informed of the European producers' deliberations concerning the BPS and that the reference to that price formation system at the meeting on 14 January 1983 was perfectly legitimate, there being no reason at that time to presume what the Commission's official reaction to that subject would be. Other documents in the investigation file (documents 33.126/2047, 2413 and 16410 to 16413) show that at the material time the European cement producers were concerned about dumped imports from the Eastern Europe countries.

1186 Third, SFIC claims in its observations of 7 January 1998 that various documents to which it did not have access during the administrative procedure (documents 33.126/2575 to 2 5 8 5 and 2 5 9 1 to 2609) — in particular a university study dated 1977 on the method of fixing prices in the cement industry, which criticises the Phlips study, the only one quoted by the Commission in the contested decision (recital 10) — would have supported its argument based on the economic analysis of the cement market.

1187 The Court considers, however, that any alternative explanations by SFIC based on the economic analysis of the cement market would not have been of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in concluding that the Cembureau agreement existed (see paragraphs 263 and 2 6 4 above).

1188 Fourth, in its observations of 7 January 1998 SFIC claims that notes d r a w n up by SECIL following the General Assembly of Cembureau on 11 to 13 June 1985 (documents 33.322/119 to 123) show that the members of Cembureau were concerned with the need to restructure the industry and with governmental reluctance to de-restrict prices.

1189 However, SFIC does not specify how access to those documents could have altered the outcome of the administrative procedure. In any event, those documents could not have shed a different light on the specific documentary evidence of the Cembureau agreement. The fact that it did not have access to those documents during the administrative procedure did not therefore prejudice SFIC's defence.

1192 Second, in its observations of 7 February 1997 Vicat alleges that documents demonstrate that the alleged national agreements and concerted practices were independent of Cembureau and of the role which the Commission sought to attribute to it. Vicat states that there is no reference to Cembureau or the Cembureau agreement in the documents which it was able to consult following the measure of 2 October 1996 and that the alleged national cartels predated the conclusion of the alleged Cembureau agreement. Vicat refers t o the chapters of the SO on Italy (chapters 3 and 13) and Portugal (chapters 9 and 19), to documents 33.126/2921 to 2 9 3 1 , 3 0 1 7 to 3032, 3053 to 3059, 3099 to 3108, 3110 to 3126, 3150 to 3154, 3158 to 3160, 3163 to 3166, 3365,11990, 11991, 12081 to 12096,12136 to 12140, 12142 and 12143, relating to the objections concerning Italy, documents 33.322/1226 to 1228, 1300 to 1310, 1329 to 1332 and 1365 to 1368, relating to the objections concerning Spain, documents 33.322/905, 1019 and 1020, 1072, 1406 to 1408, 1410 to 1412, 2897 to 2903 and 2905, relating to the objections concerning Portugal, and documents 33.126/17017 to 17053, 17202 to 17205, 17620 to 17623 and 17863 to 17865, relating to the objections concerning the United Kingdom.

1193 T h e Court points out, however, that, for the reasons given in paragraphs 1176 and 1177 above, that argument would not have been of such a nature as to alter the outcome of the administrative procedure.

1194 Third, in its observations of 8 January 1998 Vicat refers to an internal Ciments Français m e m o r a n d u m dated 22 September 1988 relating to the organisation of Cembureau (documents

1196 In its observations of 21 November 1997 Ciments Français claims that a number of documents confirm that the discussions at the meeting of Cembureau on 14 January 1983 and at the meeting of the Executive Committee on 25 M a r c h 1983 concerned a study of a new pricing system for cement rather than an alleged rule on non-transhipment t o home markets. It refers in that regard t o an extract from the minutes of a meeting of the C L C held on 7 July 1 9 7 7 (documents 33.126/2545 to 2548); a letter dated 2 1 November 1 9 7 7 from the Netherlands H e a d Delegate t o the General Delegate of the CLC (documents 33.126/2569 to 2571); a letter from M r Van H o v e dated 2 2 February 1978 (documents 33.126/9049 t o 9058); a letter dated 15 June 1978 sent on behalf of the German, Belgian and Netherlands producers t o M r Witlox, of the Commission (documents 33.126/7858 to 7860); a m e m o r a n d u m dated 21 December 1978 concerning the study of a new cement pricing system (documents 33.126/7861 t o 7875); a letter from M r Van Hove dated 2 3 December 1981 (documents 33.126/3242 and 3243); a draft letter t o the Commission dated 2 1 June 1983 (documents 33.126/5038 t o 5051); a report of FIC Board of Directors dated 5 July 1 9 8 3 (documents 33.126/2050 t o 2053); and an undated note on the background t o relations between Belgian cement producers and the Commission found at the registered office of Ciments d ' O b o u r g (documents 33.126/630 t o 632). Ciments Français concludes from all those documents that the Commission could n o t in any event have taken the view that the discussions on price formation systems within Cembureau in 1983, in particular those at the meetings held on 14 January and 2 5 M a r c h 1983, constituted evidence of an alleged general agreement n o t t o tranship t o home markets.

1199However, those documents do not show that there has been a breach of Heidelberger's rights of defence. The absence of any reference to the Cembureau agreement in the documents to which it did not have access during the administrative procedure and the existence of documents relating to measures decided upon by undertakings and their associations purely at national level, even assuming that those measures were established by the documents on which Heidelberger relies, are not of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in finding that the Cembureau agreement existed.

1200Second, in its observations of 20 February 1998 Heidelberger claims that a number of documents show that the participants in the meeting held on 14 January 1983 did not conclude the Cembureau agreement. It refers to a record of the meeting of FIC held on 8 December 1982 (document 33.126/2027) and an internal CBR note concerning preparation for the meeting of 14 January 1983 showing that the intra-Community problems to be discussed at that meeting concerned the BPS (see paragraph 852 above) and export aid (document 33.126/8132). It also refers to documents from Obourg, CBR, Schwenk, BDZ, SFIC and FIC showing that the main concern at that time was dumped imports (documents 33.126/186, 2059, 2067, 2102, 15443 to 15446, 8166, 5295, 5212 and 5213).

1201However, the documents relied on are not of such a nature as to shed a different light on the various items of specific documentary evidence referred to in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45), which show that at their meeting on 14 January 1983 the Head Delegates agreed on the principle of non-transhipment to home markets and the

1203 Heidelberger's interpretation of document 33.126/8618 cannot be accepted. Although the assertion that all European cement producers wished to acquire a larger share of the market is to be found among the claims made in that document, the context of that assertion shows that it does not have the meaning which Heidelberger seeks t o ascribe to it. It is actually the second part of a sentence in point 2 of that document, which is worded as follows: 'All European cement companies are working on further integration in ready mixed concrete and aggregates and are trying to acquire bigger market share in these activities.' The statement quite clearly refers to 'ready mixed concrete and aggregates' rather than to cement. Similarly, Heidelberger fails to show, on the basis of the content of the Ciments Français m e m o r a n d u m (document 33.126/4380), that its rights of defence were infringed. As the m e m o r a n d u m is undated, it is difficult to determine the period to which Ciments Français's remarks refer and Heidelberger has not provided any information in that regard. N o r does the document reveal whether the exports to which it refers are exports between members of Cembureau or exports of non- European producers. In any event, even if the exports in question were exports between members, the Court points out that the Commission has never claimed that the Cembureau agreement had had the effect of eliminating all intra-Community trade in cement and any temptation to engage in inter-State trade. According to Article 1 of the contested decision, the Cembureau agreement constituted an infringement because it had an anti-competitive object. Furthermore, the principle of non-transhipment to home markets did not prohibit 'traditional or even structural inter-State trade' (memorandum to the Chairman for the H e a d Delegates meeting on 19 M a r c h 1984; contested decision, recital 19, p a r a g r a p h 9; documents 33.126/11728 and 11729), but was opposed to ' r a n d o m ' exports (notes on the H e a d Delegates meeting of 19 M a r c h 1984; contested decision, recital 19, p a r a g r a p h 10; documents 33.126/11733 to 11737), namely uncontrolled or unregulated exports. Accordingly, the content of document 33.126/4380 is not of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement.

1205That argument must be rejected. The document to which Lafarge refers predates the adoption of the agenda and the dealings to which it gave rise. The internal CBR meeting, of which the document is the record, was on 3 November 1982, whereas the draft agenda and the alterations suggested by Mr Van Hove are dated 16 and 17 November 1982 (see paragraphs 798 to 800 above). Furthermore, the document submitted by Lafarge states: 'preparation Cembureau meeting 14 January 1983: agenda will be fixed on 22 December 1982; the desirability of holding a meeting of the DGR in order to prepare the Cembureau meeting will be assessed according to the agenda...'. Contrary to what Lafarge suggests, the content of the document therefore confirms the timetable of events preceding the convening of the meeting of 14 January 1983, as described in the contested decision. Accordingly, any arguments which that applicant might have been able to put forward during the administrative procedure could not have altered the outcome of that procedure.

1206 In the statement lodged on 10 February 1997 and 28 January 1998 Lafarge also claims that a number of documents support its argument that the Head Delegates were in fact concerned with dumping and imports from third countries. N o Cembureau agreement was therefore concluded or confirmed at the Head Delegates meetings. Lafarge refers to a document relating to the Head Delegates meeting held on 7 November 1984 (documents 33.126/5312 to 5315) and also to various documents which emanate mainly from German cement producers (documents 33.126/3854, 5156, 5200, 5 2 0 3 , 5 2 1 5 , 5230, 5 2 3 1 , 5 2 3 3 , 5 2 3 4 to 5265, 5 2 9 5 , 5 3 0 1 , 5312 and 8164).

2.12. Case T-44/95 Aalborg v Commission

1209 First, Aalborg states that the documents which it was able to inspect following the measures of 2 October 1996 and 18 and 19 June 1997 provide an alternative explanation for the objective of the meetings of European cement producers during the relevant period. It is clear from a number of documents that at those meetings the European cement industries did not allow themselves to be guided by a principle of non-transhipment to home markets but considered ways in which they could lawfully regulate the formation of prices and prevent ' r a n d o m ' imports and dumped imports. In its observations of 10 February 1997 Aalborg refers to the file which the C M F lodged with the Commission in 1973 when notifying the United Kingdom C P M A agreement (Case IV/27.997; see paragraphs 91 and 93 above) based on the basing point system; it was eventually decided to take no further action in that case when the agreement was terminated in 1987. Aalborg maintains that an opportunity to refer to that file during the administrative procedure would have allowed it to show that n o incriminating evidence could be inferred from the description of the basing point system given by M r Van Hove at that meeting. In its observations of 12 January 1998 Aalborg produces a series of documents (documents 33.126/1078 to 1088, 1147 to 1163, 2 5 6 9 to 2 5 7 8 , 2 5 9 1 to 2 5 9 7 , 5038 to 5 0 5 1 , 9010 to 9075 and 9078 to 9082) to show that for many years the European cement industry, in particular the Belgian industry, maintained close contact with the Commission concerning the introduction of a basing point system, the BPS (see paragraph 852 above), which was to cover the markets in Belgium, the Netherlands, part of West Germany and, possibly, N o r t h e r n France. Those documents would have allowed Aalborg to show that w h a t was actually discussed at the meeting held on 14 January 1983 was whether it was possible, without infringing Community competition law, to introduce on a European scale a price formation system comparable to the BPS notified to the Commission in 1 9 8 1 . Aalborg points out that the Commission had not yet officially responded to that notification as at 14 January 1983.

1 2 1 1 The Court points out, however, that for the reasons given in paragraph 1183 above the argument would not have been of such a nature as to alter the outcome of the administrative procedure. It should be added, for the sake of completeness, that the fact that document 33.126/6162 states that 'the rules of the economic game are not applied by the countries of the East, in particular by East Germany' is not of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement. It is common ground that the producers of Eastern Europe did not confine themselves to their home markets but exported quantities of cement to the Community market. Moreover, document 33.126/6162 also states that the countries of Eastern Europe 'are sometimes heavily in debt ... and are therefore obliged to export in order to repay their foreign debt'. Accordingly, the fact that the Eastern European producers did not apply 'the rules of the economic game' is not of such a nature as to shed a different light on the documentary evidence which shows that the Cembureau Head Delegates adopted and confirmed such rules.

1212 Second, in its observations of 10 February 1997 Aalborg claims that the SFIC notice of 4 January 1988 entitled 'Plan of the file "Cement imports at dumped prices'" (document 33.126/14806) would have been useful evidence to show that the reference to the need to 'establish rules of the game ... to avoid improper competition' made by M r Bertrán at the meeting of the Cembureau Executive Committee in Paris on 14 April 1986 and recorded in a handwritten Italcementi note (contested decision, recital 17, paragraph 9; d o c u m e n t 33.126/3185) was to the problems of dumped imports from markets outside the Community, not to intra-Community trade.

1216 Fourth, and last, in its observations of 12 January 1998 Aalborg claims that documents 33.126/1692, 1 6 9 3 , 2 3 0 1 , 2 3 1 3 , 2 3 3 5 , 2 3 3 6 , 2 3 5 6 , 3452 to 3 4 6 3 , 14809, 14810 and 14817, and documents 33.322/1235, 2 3 1 3 and 2 3 3 5 show that intra-Community exports and imports took place after 14 January 1983, that being at variance with the existence of the Cembureau agreement.

1217 The Court points out that the Commission has never claimed that the Cembureau agreement and its implementing measures had had the effect of eliminating all intra-Community trade in cement and any temptation to engage in inter-State trade. According to Article 1 of the contested decision, the Cembureau agreement constituted an infringement because it had an anti-competitive object. Furthermore, the Cembureau agreement did not prohibit 'traditional or even structural inter-State trade' (memorandum to the Chairman for the Head Delegates meeting of 19 March 1984; contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729), but was opposed to 'random' exports (notes on the Head Delegates meeting of 19 March 1984; contested decision, recital 19, paragraph 10; documents 33.126/11733 to 11737), namely uncontrolled or unregulated exports. The existence of imports or exports in a specific case is not therefore of such a nature as to shed a different light on the specific documentary evidence of the existence of the Cembureau agreement (SO, points 9 and 61; contested decision, recitals 18, 19 and 45).

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1221 However, for the reasons set out in paragraph 1180 above, that argument would not have been of such a nature as to alter the outcome of the administrative procedure.

1222 Second, in its observations of 28 November 1997 Unicem refers to documents 33.126/299, 300, 304, 721, 2554, 6206 to 6208, 6244, 7440, 13399 to 13402, 13434 to 13484, 14549, 14621, 14627, 14630, 14636, 14637, 14640, 14646, 14661 to 14663, 14694, 14709 to 14711 and 16209. Those documents show that the Commission's contention that Cembureau played a central role in the forces of competition on the cement market was wholly irrelevant. The documents distributed by Cembureau over the period in which the alleged Cembureau principle was applicable, in particular regarding the volume, origin, destination and prices of exports, were historical and globalised, wholly without commercial value, and did not enable the undertakings concerned to be identified or cross-border trade in cement to be permanently monitored.

II-819 ĪUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1223 However, the comments which Unicem could have made on the basis of those various documents in order to highlight the lack of detail in the information on intra-Community exports/imports exchanged through Cembureau during the period in question and the unsuitability of t h a t information for permanently monitoring cross-border trade in cement would n o t have been of such a nature as t o shed a different light on the body of specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement.

1227 The C o u r t points out that during the administrative procedure Buzzi had already stressed the importance of transport costs for exports (Buzzi's reply t o the SO, p a r a g r a p h 4.3.). The Commission observed, however, in the contested decision (recital 20, p a r a g r a p h 7) t h a t Buzzi stated that despite that obstacle it h a d '[exported] worthwhile quantities ("interessanti quantità") of cement to the South of France'. In those circumstances, the fact that Buzzi did not

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have access, during the administrative procedure, to the SNFCC document of 2 December 1986 did not prejudice its rights of defence. Moreover, the Court finds that the document in question confirms the definition of the market adopted in the contested decision (recital 11, paragraph 7). The document states that the considerable imports in the Antwerp-Rotterdam-Amsterdam zone 'would not leave France unaffected, because of their disturbing effect on the Benelux market and that of West Germany, which might spread'. It follows that the document would not have been of any use for Buzzi's defence if it had been accessible to Buzzi during the administrative procedure.

2.16. Case T-57/95 Heracles v Commission

The national files reveal that in many cases the national practices that were designed to prevent imports predated the alleged Cembureau agreement; that those practices were implemented entirely independently of that alleged agreement and without any reference to it; that they were considerably more complex than that agreement, inasmuch as they were derived from far closer cooperation between producers, stemming from the structure of their shareholdings; and that the nature of that cooperation to prevent imports varied from one State to another, which shows that it could not have derived from an alleged single Cembureau principle. As regards the United Kingdom market, Heracles refers to point 74 of the SO and to documents 33.126/17017 to 17051, which deal with the CPMA (see paragraph 91 above), adopted in 1934 by the CMF and notified to the Commission

imports. In the file relating to Germany, the applicant refers more specifically to point 84, and points 48 and 49 of the SO, which show the structural relationships existing between the principal German, French, Swiss, Belgian, Dutch and Luxembourg producers; those relation- ships could explain, better than the alleged Cembureau agreement, the bilateral agreements made between those various markets in order to restrict imports. Heracles also refers to the chapters of the SO dealing with the regional agreements and concerted practices in Germany, in particular the agreement relating to the award of quotas in Southern Germany.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

existence on that market was to distort competition to an appreciable extent. In the file concerning Italy it refers to points 32 to 34 of the SO, which summarise the market sharing and cooperation agreements in force on the market at that time. In the file relating to Spain, it refers to point 55 of the SO, which illustrates the bilateral relations between the Spanish and Portuguese producers.

1229 The Court finds that the comments and alternative explanations, based on the existence o n a number of markets of national, bilateral or multilateral agreements and on the structure of the shareholding of European producers of cement, which Heracles could have provided in regard to the low volume of intra-Community imports during the period in question would not have been of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in order to establish the existence of the Cembureau agreement (see paragraphs 263 and 2 6 4 above).

1230 For the reasons set out in paragraph 1137 above, the argument that the national agreements and concerted practices predated the Cembureau agreement and that they were implemented entirely independently of that agreement would not have been of such a nature as to alter the outcome of the administrative procedure.

1235 As to the meeting of 7 November 1984, the Commission regarded the discussions held at that meeting as proof that the Cembureau agreement had been confirmed once again, in that the channelling of Greek and Spanish surplus production outside the Community had been supported by Cembureau a n d its members in order to avoid destabilisation of the European markets (SO, paragraphs 9 and 6 1 ; contested decision, recitals 19, paragraph 14, a n d 4 5 , paragraph 2). Furthermore, at the hearing on 3 March 1993 the FIC put forward documents 33.126/2436 to 2 4 4 7 and referred in particular to the explicit statement that no internal EEC problem had been dealt with at the meeting of 7 November 1984. However, for the reasons given in recital 44, paragraph 3, of the contested decision, the Commission took the view that those documents and that statement were not of such a nature as to shed a different light on the content of the discussions at that meeting. Consequently, the comments which Heracles could have made during the administrative procedure in order to argue that intra-Community trade in cement was not dealt with at the meeting of 7 November 1984 could not have altered the outcome of the procedure on that point.

1236 Lastly, the Commission has never alleged that intra-Community trade was discussed at the Cembureau General Assembly in June 1985.

1237 Consequently, the observations which Heracles could have made if it had had access to the documents cited in paragraph 1233 above would not have altered the outcome of the administrative procedure.

1240 Second, in their statements lodged following the measures of 18 and 19 June 1997, Rugby, Castle, Aker and E U R O C contend that documents to which they did not have access during the administrative procedure show that the discussions which took place at the meeting of 14 January 1983 did not concern the adoption of a rule of non-transhipment to home markets but rather the establishment of a basing point system for cement and problems of dumping, in particular by eastern European countries. In that regard the applicants claim that an extract from the minutes of a CBR board meeting at the end of 1982 (document 33.126/8132) show that the Belgo-Netherlands basing point system was to be analysed at the meeting on

Rugby, Castle, Aker and E U R O C also refer to a study on the application to the cement sector of a basing point system, sent to the Commission on 21 December 1978 by representatives of the German, Belgian and Netherlands cement producers (documents 33.126/7861 to 7875). T h a t study explains why the assumptions and conclusions of the 1976 Phlips study were not applicable to the cement industry.

In support of their argument that at the meeting of 14 January 1983 the discussions concerned a basing point system for the cement sector and the problem of dumped imports, the applicants also refer to the following documents concerning the notification to the Commission of the Belgo-Netherlands basing point system: extracts from the minutes of certain meetings of the board of CBR from January to M a r c h 1981 (documents 33.126/8098 to 8104), a letter from M r Van Hove of 23 December 1981 to the CLC members in Cembureau (documents 33.126/3242 and 3243) showing that the other members of Cembureau were closely following the progress of the negotiations between the Commission and the cement producers concerned by the basing point system which had been notified; the draft minutes of the CBR board meeting of 15 December 1983 (documents 33.126/8170 to 8173); an extract from the minutes of the meeting of the management board of CBR on 2 0 December 1983 for the purpose of preparing a reply to the Commission's letter of August 1983 in which the Commission had stated that it was suspending its formal assessment of the notification of the basing point system (documents 33.126/8146 to 8148) and a m e m o r a n d u m entitled 'History of relations between the Commission and the Belgian cement industry' (documents 33.126/9078 to 9080).

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official of the Commission and concerning price formation systems for cement (documents 33.126/7858 to 7860). Lastly, Rugby submits that it is also clear from the above documents that the basing point system was discussed at the meeting of the Cembureau Executive Committee on 25 March 1983.

1242 As to Rugby's argument that it is apparent from the documents referred to in paragraph 1240 above that discussions took place on the basing point system at the meeting of the Executive Committee of Cembureau on 25 March 1983, the Court finds, first, that the Commission does not dispute that at that meeting there were discussions, inter alia, concerning a basing point system (contested decision, recital 17, paragraphs 2 and 4) a n d , second, that the Commission has never alleged that the Cembureau agreement was concluded or confirmed in the course of that meeting. As presented in the SO and the contested decision, the meeting of the Cembureau Executive Committee on 25 March 1983 was linked t o the discussions of 'fair or healthy or correct' competition. The Court points out that the passages of the SO (points 7, 8 and 60) and of the contested decision (recital 17) relating to fair competition did not ultimately give rise to a finding of infringement in the contested decision. Consequently, even if Rugby had been able to show during the administrative procedure that it was apparent from the documents on which it relies that at the meeting of the Executive Committee of Cembureau of 25 March 1983 discussions took place on a basing point system, that could not have altered the outcome of that procedure.

II - 825

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2.18. Case T-60/95 Irish Cement v Commission

1244 The Court points out that in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) the Commission relied on specific documentary evidence in establishing the Cembureau agreement. Any alternative explanations for the low level of trade between Cembureau member countries which Irish Cement could have put forward if it had had access to the entire SO during the administrative procedure would n o t have been of such a nature as to shed a different light on that documentary evidence (see paragraphs 2 6 3 and 2 6 4 above). Furthermore, even supposing that the documents relied on would have enabled the applicant to prove that there was no link between the national agreements and concerted practices and the Cembureau agreement, the inaccessibility of the documents in question did not impair its defence, because, for the reasons set out in paragraph 1137 above, the national objections are not upheld in the contested decision.

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dumping and to include the information in the anti-dumping complaints filed with the Commission.

1246 T h e Court finds, however, that the documents relied upon are not of such a nature as to shed a different light on the various items of specific documentary evidence relied upon in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement. At the very most, those documents prove that the problems posed by the dumped imports were also discussed at the meetings in question, a point which the Commission has never disputed (see paragraph 1180 above). Consequently, the observations which the applicant could have made if it had had access to those documents could not have altered the outcome of the administrative procedure. As regards the meeting of 19 M a r c h 1984, it should be added that the documents adduced by Irish Cement could not have shed a different light on the fact that amongst the 'hot spots' referred t o in the m e m o r a n d u m to the Chairman for that meeting were 'exports from Germany t o the United Kingdom and Ireland' and 'exports from France to Germany' (SO, point 9(b); contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729), namely concerns directly touching upon the intra-Community transfers of cement which the Cembureau agreement set out to regulate.

1249 The Court points out, however, that the comments which Irish Cement could have made on the basis of that document, if it had been accessible to it during the administrative procedure, could not have been of such a nature as to shed a different light on the specific documentary evidence

II - 827

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

on which the Commission relied in establishing the existence of the Cembureau agreement (SO, points 9 and 61; contested decision, recitals 18, 19 and 45). The Commission has never alleged that the effect of the Cembureau agreement was to eliminate all intra-Community trade in cement and any temptation to engage in inter-State trade. According to Article 1 of the contested decision, the Cembureau agreement constituted an infringement because it had an anti-competitive object.

2.19. Cases T-61/95 Cimpor v Commission, T-62/95 SECIL v Commission and T-63/95 ATIC v Commission

1252 First, in their statements lodged on 2 1 January and 7 February 1998 respectively, Cimpor and ATIC contend that certain documents show that in 1983 the main concern of the European cement industry was dumped exports from eastern Europe to western Europe. ATIC relies in that regard on the Vicat notes of 21 and 22 December 1987 (documents 33.126/6160 to 6175) and Cimpor refers to the '1988 M a n a g e m e n t Report' of Ciments d'Obourg (document 33.126/186). They claim that those documents would have enabled them to refute the Commission's contention that the Cembureau agreement was concluded at the H e a d Delegates meeting of 14 January 1983.

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1253 The Court finds, however, that the two documents referred to are unrelated to the Head Delegates meeting of 14 January 1983 and d o not therefore disclose what was discussed at that meeting. Even assuming that they relate to the meeting in question, they are not of such a nature as to shed a different light on specific documentary evidence on which the Commission relied in establishing that, alongside their discussions on dumping, the Head Delegates concluded, at their meeting of 14 January 1983, an agreement not to tranship to home markets and to regulate sales from one country to another, an agreement which was confirmed at the Head Delegates meetings of 19 March and 7 November 1984 (SO, points 9 and 6 1 ; contested decision, recitals 18, 19 and 45).

1255 The Court points out that the proof of the Cembureau agreement is in no way based on the discussions which took place at the Cembureau Executive Committee meeting on 8 November 1984. As to the meeting of Head Delegates of 7 November 1984, document 33.126/862 indicates that 'no internal EEC problem was dealt with or raised'. It is the same document as document 33.126/2436 (see paragraph 1233 above). The argument which Cimpor and SECIL base on that statement would not have been of such a nature as to alter the outcome of the administrative procedure. Document 33.126/862 is not of such a nature as to shed a different light on the documents referred to in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45), which show that the Cembureau agreement was concluded at the meeting of Head Delegates of 14 January 1983 and confirmed at the meetings of 19 March and 7 November 1984 (see paragraphs 979 to 9 8 5 , 1008 to 1010, 1030 to 1037 and 1235).

2.20. Case T-65/95 Italcementi v Commission

1256 First, in its observations of 10 February 1997 Italcementi states that the documents to which it was able to gain access following the measure of 2 October 1996 show that the economic context of the alleged European agreements and concerted practices was significantly more complex than described by the Commission in the international part of the SO and then in the contested decision and that the limited volume of cross-border trade in cement in the Community was easily explained by a number of characteristics of the market, such as its structural overcapacity (SO, points 37, 42, 4 7 , 54 and 56 as regards, respectively, the United Kingdom, French, German, Spanish and Portuguese markets) and the cross-shareholding between companies in the various Member States (SO, points 4 2 , 54, 56 and 82 as regards,

1258 Second, in its observations of 10 February 1997 Italcementi submits that the documents in the national files bring into proportion the central role attributed by the Commission to Cembureau in affecting competition in Europe over the period in question. It is apparent from those documents that the various national and regional cross-border agreements and concerted practices which were suspected by the Commission, in the SO, to exist on a number of markets (United Kingdom, French, German, Greek, Spanish and Portuguese markets) were wholly independent of the forum and activities of Cembureau. The SO states, moreover, that those various national or regional agreements and concerted practices sufficed in themselves to eliminate or limit the economic interpénétration desired by the Treaty and to hinder the natural flows of goods between M e m b e r States; they did not need to be brought under a principle of non-transhipment to home markets on a European scale (SO, points 77, 8 1 , 84, 86, 89 and 91 as regards, respectively, the United Kingdom, French, German, Greek, Spanish and Portuguese markets). From a logical point of view, it is therefore unthinkable that the European cement producers would have felt it necessary to weave the backdrop of a pan-European agreement and restricted practice designed to restrict competition on a market wnich was already structurally weakened by a mosaic of alleged national and regional agreements, some of which had been concluded well before 1983 (documents 33.126/17863 and 17864 and points 4 6 and 82 of the SO, regarding the French and German markets respectively), the date from which the Commission alleges that it has definite evidence of the existence of the Cembureau agreement. The German file is particularly revealing of the illogical and arbitrary nature of the reasoning adopted by the Commission in reaching the view that Cembureau was the 'compulsory crossroad' for various agreements and concerted practices existing at a local level or in the border regions of the Community. Italcementi observes that the Commission, after having explained why it considered that the alleged exchange of information between German producers through the BDZ, and between the B D Z and the SFIC, and the alleged market- sharing cartels on the southern German market were, although all of strictly national scope, in themselves of such a nature as to influence intra-Community trade, took the view that the decision of the German producers not to export was due to their concern not to infringe the Cembureau agreement. In so doing, the Commission had not taken into account the fact that the alleged German agreements went back to 1956, that is to say, well before the alleged birth of the Cembureau principle (SO, points 82 and 84). Above all, it reached its analysis when there was nothing in the description of the facts (SO, points 4 7 to 49) to link such local and regional agreements to a Cembureau agreement.

1260 The Court points out that in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) the Commission established the existence of the Cembureau agreement on the basis of specific documentary evidence. Even assuming that the documents to which Italcementi refers would have enabled it to show that there was no link between the national agreements and concerted practices and the Cembureau agreement, the inaccessibility of the documents in question could not have impaired its defence, because the national objections are not the subject of the contested decision and the proof of the existence of the Cembureau agreement in no way depends upon the existence of the national agreements and concerted practices. Furthermore, even the comments which Italcementi might have been able to make on the basis of the documents which allegedly show that the national agreements and concerted practices reduced trade between Member States could not have shed a different light on the specific documentary evidence used by the Commission in the SO and in the contested decision in establishing the existence of the Cembureau agreement (see paragraphs 263 and 264 above). On the contrary, those explanations would have been of such a nature as to underline the gravity of the infringement committed, because by concluding the Cembureau agreement the Head Delegates attempted to eliminate what little actual competition remained on the market (see paragraph 1088 above).

1261 Third, in its observations of 10 February 1997 Italcementi submits that amongst the documents which it was able to inspect there is no reference to an alleged 'macro-concertation' on a European scale. O n the contrary, the only references to Cembureau in those documents (documents 33.126/14855, 14858, 14859, 14861, 14870, 14871, 14889 and 14893) bring out its exclusive role as a forum for discussions of a strictly technical and economic, but not commercial, nature.

1263 Fourth, in its observations of 10 February 1997 Italcementi alleges that the extract from the minutes of the meeting of 23 July 1986 of the Board of Heracles (documents 33.126/19879 and 19880) would have enabled it to shed a different light on the statement by M r Kalogeropoulos at the Heracles' board meeting on 2 5 June 1986, on which the Commission relied in proving the existence of the Cembureau agreement (SO, point 9; contested decision, recital 18, paragraph 5; documents 33.126/19875 to 19877). The document of 23 July 1986 contains, alongside the mention of the United Kingdom cartel and the European agreement and restricted practices to which the statement of 2 5 June 1986 already referred, an explicit reference to Cembureau but does not establish a link between the agreements and concerted practices and Cembureau. Italcementi claims that in his statement M r Kalogeropoulos merely mentioned 'the agreement between all European cement producers' without referring to the 'Cembureau agreement or principle'. T h a t clearly shows that the agreement referred to in the minutes had n o link to Cembureau and that the author of the statement, the Chairman of Heracles, probably intended to refer, in rather condensed terms, to all the local and regional agreements and concerted practices existing on the various national markets of the Community.

1264 The Court points out, however, that the fact that the minutes of the Heracles' board meeting of 23 July 1986 (documents 33.126/19879 and 19880) do not establish an explicit link between Cembureau and the European agreements and concerted practices is not of such a nature as to shed a different light on the specific documentary evidence, in particular the internal memoranda of Blue Circle (contested decision, recital 18, paragraphs 2 and 3; documents 33.126/11332 to 11334 and 11335 to 11337) and the documents relating to the Cembureau Head Delegates meetings referred to in recital 19 of the contested decision, which unambiguously establish a link between the infringement referred to in Article 1 of the contested decision and Cembureau.

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of the Belgian industry that an excessive increase in their domestic prices might have dire effects on imports, in particular those from Germany, which shows that such imports did not seem to be prohibited by an alleged principle that there should be no transhipment to home markets. A series of documents relating to exports from Germany and France to Belgium and to exports from Belgium to the United Kingdom (documents 33.126/375, 885, 886, 1404 to 1406, 1425, 6916, 6947, 6954, 7552, 7558, 7760, 7761, 8110, 8112 to 8118, 8131 to 8132, 8382, 8519, 8540, 10193 to 10195 and 18099 bis) prove that the alleged Cembureau principle had no practical effect and show that the undertakings threatened, or feeling threatened, by imports defended themselves in particular by granting rebates to their customers, organising retaliatory measures on the markets in which those imports originated, envisaging or making alliances, acquisitions or shareholdings in various countries. Finally, many other documents (documents 33.126/3973, 3974, 10837 to 10839 and 10857 to 10872) support its contention that the obstacles to export were due to entirely commercial reasons. On the other hand, where such exports were possible, they took place regardless of an alleged agreement on non-transhipment to home markets. Italcementi concludes that all the documents referred to prove that the international trade flows in cement corresponded fully to the logic of the market (structure of the national markets, differences between price levels, deficiency of production capacity, natural and technical barriers to trade etc.) and not to alleged principles designed to limit their volume.

II - 833

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2.21. Case T-68/95 Holderbank v Commission

1268 In its observations of 8 February 1997 Holderbank contends, first, that if it had had access during the administrative procedure to the chapters of the SO concerning the United Kingdom agreement and concerted practice (chapters 4 and 14) and to the documents relating thereto it could have shown that the absence of exports to the other M e m b e r States was explained by circumstances unconnected with the alleged Cembureau agreement. It observes in that regard that the Commission itself asserts in points 3 8 , 73 and 74 of the SO that the United Kingdom market w a s entirely isolated, partitioned and, therefore, inaccessible to foreign competitors as a result of the C P M A (see paragraph 91 above). The abovementioned points of the SO would therefore contradict the existence of the alleged Cembureau agreement.

1270 Finally, in the file relating to Greece, it points to a note of the Heracles board of 29 September 1986 (documents 33.126/19881 and 19882) which, it claims, reveals that the Commission took the statement of M r Kalogeropoulos of 2 5 June 1986 (SO, point 9; contested decision, recital 18, paragraph 5; documents 33.126/19875 to 19877) out of context. T h a t note clearly shows

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that exports from Greece to the United Kingdom were prevented solely by the United Kingdom agreement and concerted practice, not by an international agreement.

2.22. Case T-69/95 Homos Ibéricos v Commission

1272 First, in its statement of 10 February 1997 Hornos Ibéricos submits that the existence of a United Kingdom agreement and concerted practice, not the alleged Cembureau agreement, made it impossible for other producers to penetrate the United Kingdom market. That fact is clear from the chapters of the SO relating to the United Kingdom (Chapters 4 and 14) and from a note of the Heracles board of 29 September 1986 (documents 33.126/19881 and 19882). The fact that the applicant did not have access to those documents during the administrative procedure therefore infringed its rights of defence.

1273 For the reasons set out in paragraph 1271 above, that argument must be rejected.

1274 Second, in its statement of 10 February 1997 the applicant refers to an internal note of the Commission's DG III of November 1994, which shows that the Commission's analysis of the market in the contested decision is erroneous.

II - 835

1276 The Court finds that the internal note to which H o r n o s Ibéricos refers was not rendered accessible through the measures of organisation of procedure prescribed by the Court. The applicant, which cannot prove that the internal note of D G III was disclosed to it in a lawful manner, may not base any argument on its content. In any event, even if it had been lawfully disclosed to the applicant during the administrative procedure, the outcome of that procedure could not have been different. It is a note sent in November 1994 to the Director-General of D G IV containing some suggestions from D G III with a view to the imminent adoption of the contested decision. If the applicant had been able to d r a w the Commission's attention to some aspects of the note before the adoption of the contested decision that could not have had any effect on the contested decision, because the Commission adopted that decision on 30 November 1994 with full knowledge of all the information in the note in question. Furthermore, in the SO (points 9 and 61) and in the contested decision (recitals 18, 19 and 45) the Commission relied on specific documentary evidence in finding the infringement referred to in Article 1 of the contested decision. If the applicant had been able, during the administrative procedure, on the basis of the internal note from D G III, to submit that the relevant market did not have a European dimension, that would not have been of such a nature as to shed a different light on the specific documentary evidence showing the existence of the Cembureau agreement and also, having regard to the European nature of the agreement and concerted practice, the European dimension of the relevant market.

1278 Cementir adds that if the Commission had concentrated its attention on individual behaviour on the national markets, it might have discovered infringements committed by one or other undertaking on certain clearly defined segments of those markets but would never have concluded that there was a European-wide agreement designed to ensure that there was no transhipment to home markets, a conclusion for which there is no evidence in the documents consulted. In support of its contentions, Cementir cites a document relating to the Greek- Spanish agreement on the creation of the GMA (see paragraph 1040 above) (documents 33.126/19220 to 19223), minutes of the meeting of the CMF on 17 July 1986 (documents 33.126/17157 to 17159), which refer to the measures taken by the United Kingdom producers in order to combat imports of Greek cement into the United Kingdom, internal SFIC documents relating to imports in 1985, 1987 and 1988 (documents 33.126/14956 to 14976), the minutes of the Heracles board meeting of 23 July 1986 (documents 33.126/19878 to 19880), and a series of documents showing that the actions taken by various Italian producers in order to protect the Italian market against Greek imports had no connection with the alleged Cembureau agreement (documents 33.126/2945 to 2948, 2949 to 2951, 2934, 2935, 2954 to 2966, 3065 to 3068). It also refers to the decision in 1972 of the Bundeskartellamt finding a local agreement and concerted practice to be unlawful. It also refers, without identifying them precisely, passages in the SO indicating that Lafarge controlled Wössinger Zement (Germany) and Asland (Spain). It claims that those passages show that the export policy of those companies was that of a group strategy, not the application of an alleged principle that there should be no transhipment to home markets. Finally, Cementir claims that Chapters 8 and 9 of the SO show that Oficemen, SECIL and Cimpor had concluded agreements concerning the Spanish and Portuguese markets, the effect of which, on the Commission's own admission, was to make imports of cement from abroad almost impossible.

II - 837

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/9J, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

documents to which it refers, Cementir had been able, during the administrative procedure, to put forward arguments relating to the reference market that could not have altered the outcome of the administrative procedure. The very existence of the Cembureau agreement concluded on a pan-European scale directly contradicts Cememtir's contention that the geographical reference market for cement is not Europe. Furthermore, neither the absence of any allusion to the Cembureau agreement in the various documents put forward by Cementir, nor the alternative explanations based on the existence of natural and technical barriers to cross-border trade in cement or forms of cooperation and local and regional agreements — sometimes dating from well before 1983 and allegedly unconnected with a European agreement to share markets — which Cementir could have put forward to explain the low volume of intra- Community trade in cement during the period in question, nor the comments which it could have made on Cembureau's role and powers and the reluctance of some associations to communicate certain information to Cembureau, would not have been of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in establishing the existence of the Cembureau agreement. On the contrary, the explanations based on 'natural barriers' to inter-State trade in cement which Cementir might have put forward if it had had access to the whole of the SO during the administrative procedure would have been of such a nature as to underline the gravity of the infringement committed, because by concluding the Cembureau agreement the Head Delegates attempted to eliminate what little actual competition remained on the market (see paragraph 1088 above).

1282 The Court points out that the Commission has never alleged that the effect of the Cembureau agreement had been to eliminate all intra-Community trade in cement and any temptation to engage in inter-State trade. According to Article 1 of the contested decision, the Cembureau agreement was found to be an infringement because of its anti-competitive object. Furthermore, ' r a n d o m ' exports to Belgium were explicitly referred to at the H e a d Delegates meeting of 19 M a r c h 1984 (notes on the meeting of 2 April 1984; contested decision, recital 19, paragraph 10; documents 33.126/11733 to 11737). The fact that the CBR document of 17 January 1986 attests the existence of some ' r a n d o m ' exports to Belgium, of which the H e a d Delegates were aware, shows at the very most that some Community producers did not always comply with the Cembureau agreement; it is not of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 9 and 61) and in the contested decision (recitals 1 8 , 1 9 and 45) in finding that the Cembureau agreement existed. O n the contrary, the content of that document shows the effectiveness of the Cembureau agreement. The note in question states: 'Imports of German cement into Belgium appear stable, although remaining at a relatively high level. They reached 250 000 tonnes in 1 9 8 3 , 220 000 tonnes in 1984 and will probably reach 203 000 tonnes in 1 9 8 5 . '

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1285 First, in its m e m o r a n d u m of 10 February 1997 Blue Circle contends that the national chapters of the SO and the documents relating to it refer to the existence of local agreements and concerted practices (national, bilateral or multilateral) which, as the Commission accepts in the national chapters of the SO, had the effect of partitioning the markets in question or, at least, of materially affecting inter-State trade. However, those local agreements are wholly unconnected with a pan-European agreement or concerted practice. T h e local agreements were thus wrongly regarded by the Commission as proof of the existence or implementation of a Cembureau agreement. Moreover, since the agreements and concerted practices described in the national chapters of the SO prevented trade in cement between Member States, the national files could have supported the observations made on its behalf by its economic expert, Dr Williamson, and his argument that the patterns of trade in cement found on the market over the period in question, in particular exports from Greece, were explicable by factors other than an alleged European agreement and concerted practice. Blue Circle also contends that a number of items in the national files show that bilateral agreements such as the Greco-Spanish agreement or the Hispano-Portuguese agreement, which the Commission had initially rightly included within the national objections and then dropped, were ultimately 'recycled' by the Commission as evidence of the existence of a Cembureau cartel.

1286 In support of each of those arguments Blue Circle puts forward passages or documents taken from the files relating to Greece, Germany, France, Italy, Spain and Portugal, which it identifies by reference to the numbers in the top right corner of the page, their title or location in the SO. None of those documents are, however, appended to its memorandum.

1288 In any event, the alternative explanations based on the economic analysis of the markets or the existence of many local (national, bilateral or multilateral) agreements which Blue Circle could have provided in regard to the patterns of inter-State trade in cement over the period in question would not have been of such a nature as to shed a different light on the body of specific documentary evidence on which the Commission relied in finding that the Cembureau agreement existed (SO, points 9 and 6 1 ; contested decision, recitals 18, 19 and 45). Furthermore, the existence of national agreements and other local agreements, such as the Greco-Spanish agreement or the Hispano-Portuguese agreement, was not taken into account by the Commission as proof of the existence of the Cembureau agreement; the existence of that agreement was established exclusively on the basis of the documentary evidence referred to in points 9 and 61 of the SO and in recitals 18, 19 and 4 5 of the contested decision. Consequently, the comments which Blue Circle could have made in order to show that there was n o connection between the local agreements and the Cembureau agreement could not have altered the outcome of the administrative procedure as regards the finding of the very existence of the agreement referred to in Article 1 of the contested decision.

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CIMENTERIES CBR AND OTHERS Y COMMISSION

action, etc. Viewed in context, they clearly show that the purchaser's desire was not to implement the Cembureau agreement but rather to obtain information on the target market in order to value the shares of the target company. Blue Circle submits that none of those documents refers to Cembureau or suggests the existence of any agreement not to tranship to home markets or that such an agreement existed. It argues that ifit had had access to those documents during the administrative procedure it could have deepened its analysis of the European cement market and of the network of main relationships and controlling shareholdings which existed on that market. It could thus, by providing a different explanation for the functioning of the market than that given by the Commission, have refuted the Commission's theory based on the existence of a single and continuous European agreement pursuant to which there was to be no transhipment to home markets.

1292Lastly, the existence of the local agreements, the network of cross-shareholdings and the other factors referred to above, which were liable to reduce trade between Member States, also show that the European cement producers had no interest in adopting, at the level of Cembureau, a principle that there should be no transhipment to home markets.

II-841

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1294 T h e Court points out that the Commission has never claimed that the Cembureau agreement and the implementing measures had had the effect of eliminating all intra-Commumty trade in cement and any temptation to engage in inter-State trade. According to Article 1 of the contested decision, the Cembureau agreement constituted an infringement because of its anti- competitive object. Furthermore, the Cembureau agreement did not prohibit 'traditional or even structural inter-State trade' (memorandum to the Chairman for the H e a d Delegates meeting of 19 M a r c h 1984; contested decision, recital 19, p a r a g r a p h 9; documents 33.126/11728 and 11729) but was opposed to ' r a n d o m ' exports (notes on the H e a d Delegates meeting of 19 M a r c h 1984; contested decision, recital 19, p a r a g r a p h 10; documents 33.126/11733 t o 11737), namely uncontrolled or unregulated exports. The existence of imports or exports in a specific case is not therefore of such a nature as t o shed a different light on the specific documentary evidence of the existence of the Cembureau agreement (SO, points 9 and 6 1 ; contested decision, recitals 18, 19 and 45). Finally, as regards the argument that there was n o connection between the local agreements and the Cembureau agreement, the Court refers to paragraph 1288 above.

3. Conclusions

1295 Italcementi and Blue Circle have not succeeded in showing that their rights of defence were infringed during the administrative procedure because they were not given access to documents subsequently used to support the finding of the infringement referred to in Article 1 of the contested decision. As regards the exculpatory evidence that is alleged to be included in the parts of the SO and the investigation file to which access was not given during the administrative procedure, the Court finds that the 39 applicants concerned by the measures of 2 October 1996 and 18 and 19 June 1997 (see paragraphs 124 and 158 to 172 above) have not succeeded in showing that the comments which they could have made on the basis of

1297 T h e Commission found that various measures governed and conditioned by the Cembureau agreement had been taken by various undertakings and associations of undertakings (contested decision, recital 4 6 , paragraph 1). Thus it took the view that all the following were measures implementing the Cembureau agreement: the specific and periodic exchanges of information on prices within the framework of Cembureau (contested decision, Article 2), the Franco-Italian agreements and concerted practices (contested decision, Article 3(1)), the Hispano-Portuguese agreement (contested decision, Article 3(2)), the Franco-German agreements and conceited practices (contested decision, Article 3{3)), the measures adopted in the framework of the ETF (contested decision, Article 4), the ECEC (contested decision, Article 5) and the EPC (contested decision, Article 6). It stated (contested decision, recital 4 6 , paragraph 2, second subparagraph) as follows: '... T h e objects are identical in all instances, namely the c o m m o n rule on non- transhipment to home markets, the other arrangements being merely measures to implement or back up that rule. T h e participants are also identical, since the situation is characterised by the accession of the European cement industry, directly or through the national trade associations, to a c o m m o n rule and by the implementation of that rule, in the various specific cases, by those most directly involved.' For that reason it took the view (contested decision, recital 46 paragraph 1 first subparagraph) that 'the whole of the arrangements adopted within the framework of Cembureau and the bilateral and/or multilateral meetings and contacts [... had] constituted a "single and continuous agreement"'.

1301 As regards Cembureau and its direct members, the decision states that the Cembureau agreement w a s concluded by 'Cembureau and its members' 'at the meeting of H e a d Delegates held on 14 January 1 9 8 3 ' (contested decision, recital 4 5 , paragraph 1) and that the same parties confirmed the content of that agreement at the meeting of H e a d Delegates held on 19 M a r c h and 7 November 1984 (contested decision, recital 4 5 , paragraph 2). For that reason, Cembureau and its direct members are considered to be '[direct] parties t o the agreement on non-transhipment t o home markets and the regulation of sales from one country to another' (contested decision, recitals 4 5 , paragraph 10, and 6 5 , paragraph 3 , first subparagraph).

1302 Although Cembureau a n d all its direct members h a d , according t o the Commission, participated in one or more of the implementing measures referred to in Articles 2 t o 6 of the contested decision, the proof of their participation in the Cembureau agreement does n o t depend on their participation in those measures. T h a t proof is based on their participation in the H e a d Delegates meetings a n d , in the case of the direct members, also on their membership of Cembureau (contested decision, recitals 4 4 , paragraph 4, 4 5 , paragraphs 1 and 2, and 65, paragraph 3 , first subparagraph).

1303 However, in the case of the direct members of Cembureau established outside the Community at the time of the Head Delegates meetings, the Commission fixed the starting date of their participation in the infringement referred t o in Article 1 of the contested decision by reference to their participation in a measure implementing the Cembureau agreement within the Community (contested decision, recitals 4 5 , paragraph 1 1 , and 65, paragraph 4).

1306 Lastly, in the contested decision, Buzzi, which is neither a direct nor an indirect member of Cembureau, is considered to have acceded to the Cembureau agreement through its participation in the Franco-Italian agreements and concerted practices referred to in Article 3( 1) of the contested decision (contested decision, recital 65, paragraph 3, first subparagraph, and third paragraph under (c), and paragraph 4, third subparagraph, first indent).

B — Membership of a national association that is a member of Cembureau as a criterion for attributing liability for the infringement referred to in Article 1 of the contested decision

1307CBR (T-25/95), ENCI (T-31/95), Dyckerhoff (T-35/95), Vicat (T-37/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Alsen-Breitenburg (T-45/95), Nordce- ment (T-46/95), Rugby (T-53/95), Cimpor (T-61/95), SECIL (T-62/95) and Hornos Ibéricos (T-69/95) contend that the Commission committed an error of law in finding that they participated in the Cembureau agreement because they were members of a national association that was a direct member of Cembureau.

1308 The Court points out that, according to the SO, the Cembureau agreement had been concluded by Cembureau and its members and the indirect members of Cembureau had adhered to the Cembureau agreement ex nunc with effect from the date on which they participated in a measure implementing that agreement. However, the SO does not take Cembureau's indirect members' membership of a national association as the basis for attributing liability to them for the infringement constituted by the Cembureau agreement (see paragraphs 554 to 562 above).

1312 First, CBR (T-25/95), Cembureau (T-26/95), FIC (T-30/95), V N C (T-32/95), Dyckerhoff (T-35/95), SFIC (T-36/95), Vicat (T-37/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), Alsen-Breitenburg (T-45/95), Nordcement (T-46/95), B D Z (T-48/95), Unicem (T-50/95), Rugby (T-53/95), BCA (T-54/95), Irish Cement (T-60/95), Cimpor (T-61/95), SECIL (T-62/95), ATIC (T-63/95), Italcementi (T-65/95), Cementir (T-87/95) and AGCI (T-103/95) contend that an agreement such as the Cembureau agreement does not fall within the scope of the activities authorised in Cembureau's statues or in the statutes of the various national trade associations involved. The H e a d Delegates are not an organ of Cembureau or an organ of those associations with authority under their respective statutes to commit the members of Cembureau in a valid manner. N o r did the direct members of Cembureau ever authorise them to conclude the Cembureau agreement.

1313 The argument that Cembureau and the H e a d Delegates of Cembureau had no power under the statutes to conclude the Cembureau agreement has already been rejected (see paragraphs 923 to 928 above). For the same reasons, any argument based on lack of competence under the statutes of the direct members of Cembureau must also be rejected. As the Commission correctly found, on the basis of the evidence put forward in recitals 1 8 , 1 9 and 45 of the contested decision, that the Cembureau agreement was concluded at the meeting of the H e a d Delegates held on 14 January 1983 and was confirmed at the meetings of the H e a d Delegates on 19 M a r c h and 7 November 1984 (see paragraph 1095 above), the only question is whether the H e a d Delegates acted in the name and on behalf of the direct members of Cembureau.

1317 T h a t finding is corroborated by the Official' letter convening the Head Delegates meeting of 14 January 1983 (document 33.126/11554) which was sent to all the direct members of Cembureau. It is unequivocally clear from that letter that the Head Delegates were invited to the meeting of 14 January 1983 not in their personal capacity, but in their capacity as representative of a direct member of Cembureau. It stated: 'to have any chance of positive results it is necessary that all Members are involved and participate in a common reflection. For this reason, I am inviting you to a special meeting [of Head Delegates] to be held in the office of Cembureau in Paris on 14 January 1983 at 9 a m . '

1318 In those circumstances, the Commission was entitled to take the view that when the Head Delegates concluded and then confirmed the Cembureau agreement at their meetings of 14 January 1983, 19 March and 7 November 1984 they were representing and committing the direct members of Cembureau.

1319 Second, FIC contends that by its nature a trade association is not able to conclude an agreement restricting competition within the meaning of Article 85( 1 ) of the Treaty, as it does not carry on any commercial or economic activity. To the same effect, Cembureau submits that an association must play an active commercial role if Article 85(1) of the Treaty is to apply to it. ATIC states that by virtue of its statutes it could not carry on any type of commercial activity.

1320 As the Commission rightly observes in the contested decision (recital 4 4 , paragraph 2) it is not necessary for trade associations to have a commercial or economic activity of their own for Article 85(1) of the Treaty to be applicable to them (Case 71/74 Fruit- en Groentenimporthan-

1322 Cembureau (T-26/95), SFIC (T-36/95), Vicat (T-37/95), B D Z (T-48/95), Cimpor (T-61/95), SECIL (T-62/95), ATIC (T-63/95) and Italcementi (T-65/95) contend that the Commission committed an error of law in finding that both associations and members of those associations participated in the infringement referred t o in Article 1 of the contested decision. SECIL states that the same infringement cannot be characterised as both an agreement and a decision within the meaning of Article 85(1) of the Treaty, the former concerning undertakings and the latter associations. O n e and the same infringement should therefore be characterised either as an agreement between undertakings or as a decision by associations of undertakings. Cembureau, SFIC, Vicat, B D Z , Cimpor, SECIL and ATIC allege that the Commission did n o t observe the conditions laid down in the case-law for validly attributing one and the same infringement to an association and t o its members. It states that such an attribution of responsibility is permissible only where the Commission succeeds in proving that the association's conduct w a s separate and a u t o n o m o u s from that of its members. In those circumstances, the Commission's approach also infringes the non bis in idem rule. Italcementi contends that, if the logic of the description in the contested decision is followed, the infringement should be characterised as a decision of an association and not as an agreement between undertakings. The Commission ought therefore to have proved that Italcementi had indicated its agreement to what h a d been decided at the level of Cembureau and that it had acceded t o it. Italcementi's participation in the Cembureau agreement could not therefore be based solely on its capacity as a member of Cembureau.

1326 In the present case, there is no doubt as to the separate role played by the associations in the infringement referred to in Article 1 of the contested decision. Cembureau's separate role consisted in its taking the initiative for the meetings of the Head Delegates during which the Cembureau agreement was concluded and then confirmed, and in preparing those meetings (contested decision, recital 19). The separate role of the national associations that were members of Cembureau consisted in concluding, then confirming, the Cembureau agreement with Cembureau. The indirect members of Cembureau acceded to the agreement through the measures implementing that agreement. Their accession was made possible by the fact that the national associations were invited to spread 'words of wisdom' around them (draft introductory statement by the Chairman for the meeting of 14 January 1983 (contested decision, recital 19, paragraph 5; documents 33.126/11583 to 11585)), a circumstance which also underlines the separate role played by the national associations. Lastly, Cembureau and the national associations played a separate role from that of the indirect members of Cembureau in the implementation of the Cembureau agreement. Only Cembureau and its direct members are the subject of the infringements constituted by the exchanges of price information found in Article 2(1) and (2) of the contested decision (see paragraphs 1450 to 1452 below).

1327On the other hand, in the contested decision, the member undertakings of the associations that are the subject of the contested decision are not regarded as having concluded the Cembureau agreement. According to that decision (recitals 45, paragraph 10, and 65, paragraph 3, first subparagraph), they acceded to the Cembureau agreement through their participation in one or more of the implementing measures referred to in Articles 3 to 6 of the contested decision.

1329 Lastly, as to Italcementi's argument, irrespective of whether the Cembureau 'agreement' could also be characterised as a decision of association(s) of undertakings, the Commission was entitled to characterise the conduct referred to in Article 1 of the contested decision as an agreement within the meaning of Article 85(1) of the Treaty, because it had established the existence of a concurrence of wills between the participants at the meetings of the H e a d Delegates of 14 January 1 9 8 3 , 19 M a r c h and 7 November 1984 (see paragraph 1072 above). Moreover, Italcementi's participation in the Cembureau agreement was established not merely on the basis of its capacity as member of Cembureau but also on the basis of its presence at the meeting of H e a d Delegates on 19 M a r c h 1984, at which the Cembureau agreement was confirmed (contested decision, recital 19, paragraph 8, recital 4 5 , paragraphs 1, 2 and 10, and recital 6 5 , paragraph 3, first subparagraph). Italcementi cannot therefore allege that its participation in the Cembureau agreement was based solely on its capacity as member of Cembureau.

1330 All the arguments examined must therefore be rejected.

E — Participation of Cembureau and its direct members in the infringement referred to in Article 1 of the contested decision

1331 The Court must examine first whether the Commission has proved the participation of Cembureau and its direct members in the infringement referred to in Article 1 of the contested decision (1). T h e Court will then examine the argument based on infringement of the principle of equal treatment raised by some direct members of Cembureau (2). The Court will also examine the arguments of Cembureau and of its direct members relating to inadequacy of the reasoning in the contested decision (3) and infringement of the rights of the defence during the administrative procedure on account of insufficient access to certain passages of the SO and certain documents in the investigation file (4).

1.1. Succession of certain direct members of Cembureau

1334 First, Aalborg (T-44/95) complains that the Commission found it responsible for the actions of Aktieselskabet Aalborg Portland-Cement Fabrik, a company which transferred its cement production site to Aalborg on 1 January 1990. It states that that company has not ceased to exist as a legal person, as it became a holding company which held, under a new name, 50% of shares in Aalborg. As the Cembureau agreement was not in written form, it could not have gained awareness of it upon the transfer. Aalborg also claims that the statement of reasons for the contested decision is defective as regards the finding that it was liable because of acts committed by another undertaking.

1335 T h e Court points out that at the hearing Aalborg acknowledged that its formation on 26 June 1990 and its acquisition, with retroactive effect t o 1 January 1990, of the cement plant of Aktieselskabet Aalborg Portland-Cement Fabrik were part of a reorganisation of the group to which it belongs. T h e applicant and Aktieselskabet Aalborg Portland-Cement Fabrik must therefore be considered t o constitute the same economic entity for the purposes of applying Article 85(1) of the Treaty (Joined Cases 29/83 and 30/83 CRAM and Rheinzink v Commission [1984] ECR 1679, paragraph 9). It follows that the Commission was entitled to hold Aalborg responsible for the activities of Aktieselskabet Aalborg Portland-Cement Fabrik.

1336 As to the alleged defect in the statement of reasons, the Court points out that the SO (appendix 5 to the application) was addressed to Aalborg. At the hearing Aalborg acknowledged that in its reply to the SO it had not submitted before the Commission that it could not be held responsible for the activities of Aktieselskabet Aalborg Portland-Cement Fabrik. In such circumstances, and since the latter undertaking and the applicant constituted one and the same economic entity for the purposes of applying Article 85(1) of the Treaty, the Commission was not required to explain further in the contested decision why it held the applicant responsible for the conduct of Aktieselskabet Aalborg Portland-Cement Fabrik.

1340 Even if, as the applicant alleges, the activities of C M F concerned principally the CPMA (see paragraph 91 above), which were terminated in 1987 before the creation of BCA, and BCA exercises certain functions which were never exercised by CMF, C M F and BCA are obviously identical as regards the activities they pursued within Cembureau and, accordingly, as regards the conduct for which BCA is held responsible in the contested decision (Suiker Unie and Others v Commission, cited in paragraph 651 above, paragraphs 84 to 88, and CRAM and Rbeinzink v Commission, cited in paragraph 1335 above, paragraph 9). BCA succeeded C M F as member of Cembureau and, following the resumption of the activities of CMF, the same person continued to exercise the function of United Kingdom H e a d Delegate within Cembureau.

1341 In those circumstances, the Commission was entitled to find that BCA had to answer for the conduct of C M F within Cembureau. BCA's argument must therefore be rejected.

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1.2. Applicants which participated in one or more meetings of the Head Delegates

1.2.1. Participation in the meetings of the Head Delegates at which the Cembureau agreement was concluded and then confirmed

l.w As the Head Delegates represented the direct members of Cembureau (see paragraphs 1314 to 1318 above), the Court can already find that FIC, VNC, Ciments Luxembourgeois, SFIC, Aalborg, BDZ, CMF/BCA (see paragraphs 1337 to 1341 above), Oficemen, Irish Cement, ATIC, Aker, EUROC, Cementir and AGCI, all direct members, participated in the meeting.

1346Italcementi (T-65/95) alleges that because of illness its Head Delegate, Mr Pesenti, did not take part in the meeting. It observes in that regard that the document entitled 'Meeting of Head Delegates, Paris, 14 January 1983' is undated. That document shows only that Mr Pesenti forgot to inform Cembureau that he would not be present at the meeting.' In support of its argument it refers to the draft record of the meeting of the Executive Committee of 22 December 1982 (contested decision, recital 19, paragraph 3; document 33.126/11565), to the draft record of the Executive Committee meeting held on 9 November 1983 (contested

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JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/9S TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

decision, recital 17, paragraph 5; documents 33.322/286 to 294) and to a record of a telephone conversation between Mr Dutron and Mr d'Agostino (contested decision, recital 19, paragraph 11; document 33.126/11698).

1347 T h e Court finds that it w a s envisaged that M r Pesenti would be present at the meeting of 14 January 1 9 8 3 . T h e document entitled 'Meeting of H e a d Delegates, Paris, 14 January 1 9 8 3 ' mentions his name amongst the H e a d Delegates w h o were going t o participate in the meeting.

1351 Italcementi acknowledges that it sent its general manager, M r d'Agostino, as delegate t o that meeting (application, p . 45). Even though, as a replacement for M r Pesenti (see paragraph 1348 above), he w a s n o t a Cembureau H e a d Delegate, he represented Italcementi, so that it was bound by his acts.

1352 Lastly, as regards the meeting of Head Delegates of 7 November 1984 the Court must also find that, as has not been disputed, the Head Delegates of FIC, Ciments Luxembourgeois, SFIC, Aalborg, BDZ, CMF/BCA (see paragraphs 1337 to 1341 above), Irish Cement, ATIC, EUROC,

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Cementir and AGCI (see also the document headed 'Meeting of Head Delegates, Paris, 7 November 1984') and thus those direct members of Cembureau themselves were present at that meeting.

1354 FIC (T-30/95) and Ciments Luxembourgeois (T-34/95) state that their accession to an agreement contrary to Article 85(1) of the Treaty cannot be established by showing that they did not openly distance themselves from it.

1355 That argument is irrelevant. The participation of the direct members of Cembureau in the Cembureau agreement was not established by showing that they did not openly distance themselves from it. It was established on the basis of their membership of Cembureau and their participation in one or more meetings of the Head Delegates at which the Cembureau agreement was concluded and subsequently confirmed (see paragraph 1302 above).

1356 FIC, V N C (T-32/95), Ciments Luxembourgeois, SFIC (T-36/95), Aalborg (T-44/95), BDZ (T-48/95), BCA (T-54/95), Oficemen (T-59/95), Irish Cement (T-60/95), ATIC (T-63/95), Italcementi (T-65/95), Cementir (T-87/95) and AGCI (T-103/95) claim that they openly distanced themselves or that there are other special circumstances which show that they did not participate in the Cembureau agreement.

II - 855

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-2É/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1357 First, FIC, Aalborg, BDZ, BCA and AGCI claim that they were unaware of the Cembureau agreement until the Commission initiated a proceeding. They could not therefore have participated in the infringement referred to in Article 1 of the contested decision.

1361 For the sake of completeness, the Court points out that the account given by the Chairman of FIC, Mr Van Hove, of 12 November 1984 to FIC administrative board does not enable any conclusion to be drawn as to the nature of the information which might have been communicated to FIC following the meetings of 14 January 1983 and 19 March 1984. Lastly, the fact that FIC challenges the Commission's assertion that the minutes of FIC did not always reproduce the real content of discussions within the administrative board is irrelevant. That factor is not taken into account in the contested decision in order to show that FIC participated in the Cembureau agreement. It was held to have participated on the grounds that it was a member of Cembureau and had participated in the meetings of the Head Delegates at which the Cembureau agreement was concluded and subsequently confirmed (contested decision, recital 19, paragraphs 4, 8 and 13, recital 45, paragraphs 1, 2 and 10, and recital 65, paragraph 3, first subparagraph).

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1364 As regards the m e m o r a n d u m drawn up following the meeting organised by FIC on 11 January 1983 in order to prepare for the Head Delegates meeting of 14 January 1983, the Court points out that this document 'sent to M r Pestalozzi, FIC spokesman cc M r J. Van Hove, Chairman of CLC' is headed 'Cembureau meeting of Head Delegates of 14 January 1983 in Paris in order t o examine the factors influencing the cement markets. Note of the preparatory meeting of 11 January 1983 for FIC'. The fact that that document does not refer to a principle that there should be no transhipment to home markets does not preclude that an agreement on that principle was adopted some days later in the course of the meeting of 14 January 1983. Furthermore, the m e m o r a n d u m in question does not contain anything to show that M r Pestalozzi, the Belgian Head Delegate, and M r Van Hove, Chairman of FIC, w h o participated in that meeting (contested decision, recital 19, paragraph 4; document 33.126/11581) intended to distance themselves from what was agreed at that meeting.

1365 Similarly, none of the documents mentioned in paragraph 18 of the minutes of the FIC administrative board meeting N o 88 of 23 February 1983 refer to the fact that FIC had openly distanced itself in any way from the content of the Cembureau agreement. The Court points out that a failure to mention the Cembureau agreement in a document, which is not sufficient to shed a different light on the documents establishing that that agreement was concluded at the meeting of 14 January 1983 (see paragraph 1116 above), cannot prove that the author of that document openly distanced itself from the agreement either.

intention to draw the attention of the members of Cembureau to a 'hotspot' endangering the principle that there should be no transhipment to home markets, which had been adopted at the meeting of Head Delegates of 14 January 1983. Far from constituting an expression of distancing from the Cembureau agreement, the Belgian Head Delegate's statement is therefore fully consistent with compliance with that agreement. The alleged pointlessness of a discussion by the Head Delegates relates only to the problem of 'random' exports to Belgium and the Netherlands, not to the other 'hotspots' identified in the memorandum to the Chairman for the meeting of Head Delegates of 19 March 1984 (contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729) and in the notes concerning that meeting (contested decision, recital 19, paragraph 10; documents 33.126/11733 to 11737). Lastly, by virtue of its presence at the meetings of Head Delegates on 19 March and 7 November 1984, at which the Cembureau agreement was confirmed, FIC in any event gave the other participants the impression that it continued to subscribe to the Cembureau agreement.

1367 Lastly, the minutes of the FIC administrative board meeting N o 112 of 1 September 1 9 8 7 contains some observations on the role which Cembureau should play.

1368 The Court points out that at that time discussions were taking place concerning the role and future of Cembureau (see paragraphs 1194 and 1195 above). T h e minutes N o 112 of 1 September 1 9 8 7 refer t o FIC's position in that debate. However, they are unrelated t o the discussions which took place at the meetings of the H e a d Delegates t o which the contested decision refers and do n o t show that FIC openly distanced itself from w h a t was agreed at those meetings.

1373 Third, V N C , Ciments Luxembourgeois, BCA, Irish Cement, Italcementi, Cementir and AGCI submit that they had no interest in participating in the Cembureau agreement, that they played a modest role on the cement market and that they had specific reasons for participating in the Head Delegates meetings.

1374 However, the facts and circumstances on which the applicants concerned rely are not of such a nature as to shed a different light on the specific documentary evidence referred to in recitals 18, 19 and 45 of the contested decision which establish the existence of the Cembureau agreement (see paragraph 1095 above). As it has been established that Ciments Luxembourgeois, C M F / BCA (see paragraphs 1337 to 1341 above), Irish Cement and AGCI participated in the three meetings in question, that the V N C participated in those of 14 January 1983 and 19 M a r c h 1984, that Cementir participated in those of 14 January 1983 and 7 November 1984 and that Italcementi participated in the meeting of 19 March 1984, those applicants, w h o do not even assert that they openly distanced themselves from what was agreed at those meetings, subscribed, by their very presence at those meetings, to the Cembureau agreement or at least gave the impression to the other participants that they subscribed to it. Their participation in the Cembureau agreement is therefore established.

1375 V N C and Cementir argue that their absence from one of the three meetings of Head Delegates, that of 7 November 1984 and that of 19 March 1984 respectively, shows that they did not participate in the infringement.

1377 Fourth, in contesting that it participated in the Cembureau agreement, Ciments Luxembour- geois asserts that it was not identified in the contested decision as one of the parties to the bilateral contacts which were discussed at the meetings. It states that, unlike the SO (point 13), the contested decision does not refer to quantitative restrictions on cement deliveries from Luxembourg to Belgium. Italcementi considers that the contested decision is contradictory in that it finds that it participated in the Cembureau agreement but does not complain that it participated in the bilateral agreements and concerted practices referred to in Article 3 of the contested decision which are the only measures implementing that agreement. Likewise, AGCI considers that the m e m o r a n d u m to the Chairman for the meeting of the H e a d Delegates of 19 M a r c h 1984 must be related to the infringements referred to in Article 3 of the contested decision, in which neither AGCI nor its members participated.

1378 It must, however, be pointed out that in the contested decision the participation of Ciments Luxembourgeois, Italcementi and AGCI in the Cembureau agreement was established on the basis of their capacity as direct members of Cembureau and their participation in one or more of the H e a d Delegates meetings in question (contested decision, recital 19, paragraphs 4, 8 and 13, recital 4 5 , paragraphs 1, 2 and 10, and recital 65, paragraph 3, first subparagraph). The fact that in the contested decision those applicants were found to have participated in the Cembureau agreement even though they did not participate in the infringements referred to in Article 3 of the contested decision does not therefore give rise to a contradiction.

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1382 SFIC also stresses that a distinction should be made between trade between members of Cembureau and intra-Community trade. It claims that, given the fact that half of the participants in the Head Delegate's meetings of Cembureau came from countries outside the Community, the Commission could not use evidence relating to countries such as Spain and Portugal in' order to call in question the conduct of undertakings established in the Member States of the Community.

1383 T h a t argument is irrelevant inasmuch as SFIC is an association of undertakings. In any event, SFIC's participation in the Cembureau agreement was established on the basis of its capacity as a direct member of Cembureau and its participation in the Head Delegates meetings at which the Cembureau agreement was concluded and subsequently confirmed (contested decision, recital 19, paragraphs 4, 8 and 13, recital 4 5 , paragraphs 1, 2 and 10, and recital 6 5 , paragraph 3, first subparagraph). The Commission did not therefore take into consideration factors relating to countries that were not members of the Community.

1384 Sixth, Aalborg alleges that it cannot be considered to be a party to the Cembureau agreement, since at the meeting of 19 March 1984 the discussions were in French, which its representative, M r Stevens Larsen, could not understand. Moreover, he did not make any statement during the meeting and was not invited to give his views on any decisions adopted, whether in the form of a vote, written acceptance, approval of the minutes or a similar document. At the hearing Aalborg also submitted that discussions at the meeting of 14 January 1983 were also in French.

II - 861

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/9J, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

states that the memorandum to the Chairman for the Head Delegates meeting of 19 March 1984 explains that the exports from Spain to Ireland and the United Kingdom were still a 'hotspot' at that time.

1387 The Court points out that the various matters adduced by Oficemen, which illustrate the conduct of its members rather than its own conduct, cannot hide the fact that it actually participated in the meetings of 14 January 1983 and 19 M a r c h 1984 (see paragraphs 1344, 1345 and 1350 above). By its presence at those meetings, Oficemen, which does not even allege that it openly distanced itself from w h a t was agreed at the meetings, subscribed continuously to the content of the Cembureau agreement or, at least, gave the impression to the other participants that it subscribed to it. Its participation in the Cembureau agreements at the time of the H e a d Delegates meetings is therefore established. However, in the contested decision, Oficemen's participation in the Cembureau agreement was considered to constitute an infringement only as from 1 January 1986 (see paragraph 1303 above). It will therefore be necessary to examine below whether Oficemen was still actually participating on 1 January 1986 (see paragraphs 4 2 2 6 to 4 2 3 2 below).

1388 Eighth, Aalborg, Irish Cement and Italcementi allege that their behaviour proves that they did not accede to the Cembureau agreement. Aalborg asserts that it organised its sales, in particular its exports, according to independent commercial considerations. Irish Cement claims that the increase in its exports to the United Kingdom during the 1980s shows that it did not accede to any agreement that there should be n o transhipment to home markets. Italcementi claims that the Commission has not proved that its behaviour was influenced by the information exchanged at the meetings of H e a d Delegates referred to in the contested decision.

1391 T h a t argument must be rejected. The fact that the applicants are not referred to by name in the documents relating to the Cembureau agreement is not of such a nature as to shed a different light on the specific documentary evidence referred to in recitals 18, 19 and 45 of the contested decision, which shows that the participants in the meeting of 14 January 1983, the Head Delegates designated by Aalborg, BDZ and Cementir amongst them, concluded the Cembureau agreement (see paragraph 1095 above) but does not show that they openly distanced themselves from what was agreed at that meeting.

1392 Tenth, BDZ states that it has 37 members and that there is no evidence to show that they were informed by it of the alleged Cembureau agreement. Likewise, Oficemen and ATIC submit that they never communicated to or imposed on their members any rule, indication or instruction in pursuance of the alleged Cembureau agreement.

1393 T h a t circumstance, even if it were well founded, could not hide the fact that BDZ, Oficemen and ATIC participated in the Head Delegates meeting of 14 January 1983 and, accordingly, that they participated directly in the Cembureau agreement (see paragraphs 1095, 1344 and 1345 above).

1394 Lastly, AGCI complains that the Commission has not proved that in participating in the Head Delegates meetings in question AGCI had given the other participants the impression that it shared their possibly unlawful objectives. It refers to an internal m e m o r a n d u m of Blue Circle of 24 October 1986 from M r Horner (document 33.126/11132) which, explaining that the Greek producers were not bound by the same rules of trading as the other European producers, clearly shows that they had always been regarded as undesirable third parties because they did not abide by the large European producers' rules.

1397 T h a t argument must be rejected and it is not necessary to rule on its admissibility in so far as it has been raised by Aalborg and Irish Cement. The fact that the applicants concerned were not party to drawing up one or other document or that they had no knowledge of it prior to the initiation of the administrative procedure is not such as to render those documents inadmissible against them as evidence of the infringement with which they are charged (see to that effect Case T-157/94 Empresa Nacional Siderúrgica v Commission, cited in paragraph 1053 above, paragraph 312). The Court points out that the body of evidence referred to in recitals 18, 19 and 4 5 of the contested decision proves that the Commission rightly concluded that the Cembureau agreement existed (see paragraph 1095 above). It is c o m m o n ground that all the applicants referred to in the preceding paragraph participated in the meeting of 14 January 1 9 8 3 , in at least one of the t w o meetings of 19 M a r c h and 7 November 1984, and did not openly distance themselves from w h a t was agreed at those meetings. Their participation in the Cembureau agreement is therefore established.

1398 At the hearing Irish Cement claimed that the internal memoranda of Blue Circle (contested decision, recital 18, paragraphs 2 and 3; documents 33.126/11332 to 11337) and the statement of M r Kalogeropoulos o f 2 5 June 1986 (contested decision, recital 18, paragraph 5; documents 33.126/19875 to 19877) were inadmissible because they had not had an opportunity to cross- examine the authors of those documents.

1 4 0 2As regards Oficemen and ATIC, on the one hand, and EUROC, on the other, which were direct members established at the material time outside the Community, the Commission held them liable for the infringement referred to in Article 1 of the contested decision as from 1 January 1986 and 9 June 1986 respectively. The Commission found that Aker, which is still established outside the Community, participated in the infringement referred to in Article 1 of the contested decision as from 9 June 1986. The Commission explains that 'in the case of Oficemen and ATIC... [it) could deem their accession to the agreement to have had effects within the Community as from the date on which they acceded to the agreement; however, it deems the infringement to have occurred as from 1 January 1986, since the participation of the Spanish and Portuguese undertakings did not, according to the Commission's information, produce any significant effects within the Community until after the accession of their countries to the Community' (contested decision, recital 45, paragraph 11). As to Aker and EUROC, the Commission states that it 'has no evidence that their participation in the Cembureau agreement or principle had any effect within the Community before [9 June 1986]' (contested decision, recital 65, paragraph 4, fourth indent). Although it has been proved that those four parties participated in the Cembureau agreement, it will therefore be necessary to examine whether their participation was continuous and constituted an infringement as from the two dates found in the contested decision (see paragraphs 4226 to 4242 below).

1405 In the contested decision (recital 44, paragraph 4) the Commission states as follows: 'The fact that members who were entitled to attend the meetings of the bodies did not do so does not mean that the decisions and/or agreements reached within such bodies do not apply to or do not have to be applied by such absent members. As a general rule, belonging to an association means accepting its rules and conduct and implies awareness that the association and/or organisation acts through the direct or indirect contribution of each member and relies on each member's consent and support. Unless dissent is expressed, this applies not only to the activities provided for in the articles of the association, but also to its de facto activities.' It observes moreover (contested decision, recital 45, paragraph 13, in fine): 'The fact that [Unicem] did not attend meetings does not mean that [it] was not party to the agreement on non-transhipment to home markets and on the regulation of sales from one country to another, first because other Italian Head Delegates were present and represented their country, secondly because the association acts through the contribution of all members present and absent, and lastly because, at the time when Unicem was, with the other Italian producers, suffering the effects of Greek imports, it received the support of the other Cembureau members (see recital 27), thus benefitting from the solidarity inherent in the home market rule.'

1406 There is n o need to rule on whether Unicem was informed of the holding of the H e a d Delegates meetings, it being c o m m o n ground that neither M r Nasi, H e a d Delegate designated by Unicem to represent it in Cembureau (Unicem's reply of 5 June 1998 to a written question from the Court), nor any other member of Unicem's staff participated in the H e a d Delegates meetings of 14 January 1983, 19 M a r c h and 7 November 1984. T h a t fact is apparent from the lists of persons attending them (contested decision, recital 19, paragraphs 4, 8 and 13; documents 3 3 . 1 2 6 / 1 1 5 8 1 , 11699, 11700 and 11752). Moreover, it was acknowledged by the Commission in the contested decision (recital 4 5 , paragraph 13) and in the proceedings before the Court (defence in Case T-50/95, paragraph 49).

1410 The provision made for the presence of two Italian Head Delegates at the meeting of 14 January 1983, namely M r Pesenti of Italcementi and M r Cesareni of Cementir, which is apparent from the document headed 'Meeting of Head Delegates, Paris, 14 January 1983', is also at variance with the existence of a mandate from the three Italian members to the one Italian Head Delegate w h o was present.

1 4 1 1Lastly, if, as the Commission alleges, each of the three Italian Head Delegates represented all the Italian members of Cembureau, M r Pesenti of Italcementi, w h o was prevented from attending the meeting on 19 March 1984, would have arranged to have been replaced by the Cementir or Unicem Head Delegate rather than by M r d'Agostino, an employee of Italcementi.

1412 It must therefore be accepted that Unicem was not represented at the meetings of 14 January 1983, 19 March and 7 November 1984. Consequently, Unicem did not participate directly in the concurrence of wills which emerged at those meetings.

1 4 1 3Even if, as the Commission states, an association acts through the contribution of all members present and absent and belonging to an association means accepting its rules and conduct, Unicem can be found to have participated in the infringement referred to in Article 1 of the contested decision only if it is established that it consented, explicitly or implicitly, to the content of the Cembureau agreement. Its mere capacity as member of Cembureau cannot suffice to render Unicem liable for the manifestly unlawful decisions adopted by the Head Delegates in its absence. The Court points out in that regard that the Commission has not refuted Cembureau's assertion that its articles do not confer any power on the Head Delegates as a body (contested decision, recital 15, paragraph 4).

2. Infringement of the principle of equal treatment

1418 V N C (T-32/95) considers that the contested decision discriminates against it because not all the members of Cembureau were the subject of a finding of infringement in the contested decision. By way of example, it refers to the members of Cembureau established in a non-member country of the Community. Similarly, ATIC (T-63/95) alleges that consistent application of the principle set out in recital 44, paragraph 4, of the contested decision should have led the Commission to find that all the direct members of Cembureau were liable for the infringements committed within the framework of that association.

1419 The Court points out that the only direct members of Cembureau not covered by the contested decision, namely the Austrian, Finnish, Icelandic, Swiss and Turkish members, were all established in a non-member country of the Community at the time when the contested decision was adopted. Moreover, the contested decision does not contain any evidence that those direct members participated in a measure implementing the Cembureau agreement (see paragraph 1303 above). The situation of the direct members of Cembureau which are not covered by the contested decision therefore differs from that of V N C and ATIC, which, at the date taken as the starting date of their participation in the infringement, were established in the Community and

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had participated in one or more measures implementing the Cembureau agreement. The argument alleging infringement of the principle of equal treatment must therefore be rejected.

1424 That argument must be rejected. In recital 44 (paragraph 1) of the contested decision the Commission starts its legal assessment with the question or the applicability of Article 85 of the Treaty to associations of undertakings, stating that, since this problem would recur a number of times throughout its account, it would be useful to establish at the outset the essential principles that apply to situations in which associations participate in behaviour prohibited under Article 85 of the Treaty. In the same recital (paragraphs 2 and 3) it analyses the Community case-law applicable to that question and refutes the arguments submitted in that regard by a number of associations, including SFIC, during the administrative procedure. Finally, the contested decision sets out the reasons why the associations of undertakings are held liable for the unlawful actions of persons exercising functions in those associations (contested decision, recital 44, paragraph 3, second subparagraph, and paragraph 4, second subparagraph).

II - 869

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1425 Aalborg (T-44/95) complains that in its legal assessment the Commission did not explain the reasons for the allegedly novel theory that liability attaches to a failure to express dissent, a theory on which the Commission relies in recital 44 of the contested decision.

1426 However, since the Commission established that Aalborg was present at the meetings of 14 January 1983, 19 March and 7 November 1984 (contested decision, recital 19, paragraphs 4, 8 and 13; documents 33.126/11581, 11699, 11700 and 11752) and that the Cembureau agreement was concluded and confirmed at those meetings, it was entitled to take the view that Aalborg had participated in the infringement referred to in Article 1 of the contested decision unless it had expressly distanced itself from it. That approach by the Commission, which is moreover laid down in the case-law (see, for example, Hercules Chemicals v Commission, cited in paragraph 140 above, paragraph 232) did not therefore require any special statement of reasons.

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1431 The argument alleging infringement of its rights of defence is invalid in the present case, because Unicem itself accepted in its reply of 5 June 1998 to a written question from the Court that it had appointed M r Nasi as Head Delegate during the period taken into consideration by the contested decision. In any event, that argument is devoid of purpose. The Court has already held that the Commission could not rely on the designation of M r Nasi as Head Delegate in order to find Unicem responsible for the infringement referred to in Article 1 of the contested decision, because M r Nasi did not participate in any of the meetings at which the Cembureau agreement was concluded and subsequently confirmed (see paragraphs 1404 to 1417 above).

4.2. Exculpatory evidence

1432 In the observations which they lodged following the measures of 2 October 1996 and 18 and 19 June 1997 C e m b u r e a u (T-26/95) and Cementir (T-87/95) submit that during the administrative procedure they were not given access to exculpatory evidence relating to their participation in the infringement referredto in Article 1 of the contested decision.

4 . 2 . 1 . Case T-26/95 Cembureau v Commission

1434 However, Cembureau's argument could not have altered the outcome of the administrative procedure. The comments which it might have made on the basis of the documents referred to in the preceding paragraph would not have been of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (recitals 9 and 61) and in the contested decision (recitals 18, 19 and 45) in establishing the existence of the Cembureau agreement. N o r would those comments have been of such a nature as to shed a different light on the documents entitled 'Meeting of Head Delegates, Paris, 14 January 1 9 8 3 ' (contested decision, recital 19, paragraph 4; document 33.126/11581), 'Meeting of Head Delegates, Noordwijk, 19 March 1984' (contested decision, recital 19, paragraph 8; documents 33.126/11699 and 11700), and 'Meeting of Head Delegates, Paris, 7 November 1984' (contested decision, recital 19, paragraph 13; document 33.126/11752) which show that

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

Cembureau participated in the three meetings of Head Delegates to which the contested decision refers and, accordingly, in the conclusion and confirmation of the Cembureau agreement.

4.2.2. Case T-87/95 Cementir v Commission

1435 In its observations of 10 February 1997 Cementir asserts that in the national files it discovered a series of documents proving that the European cement market was naturally divided into separate zones, that intra-Community trade in cement was necessarily restricted to the frontier zones or, where it was possible, to exports by sea or river transport, and that that trade could at the very most concern certain specific undertakings, but not itself, as it did not carry on any export activities. It could not therefore have been concerned by the alleged Cembureau agreement.

1438 The Court points out that in the contested decision Cementir was found to have participated only in the international agreements and concerted practices (Articles 1, 2 , 4(1), (2) and (3)(a) and (b) and Article 5). Accordingly, the comments which Cementir might have made in order to show that it was wholly uninvolved in certain local agreements could not have altered the outcome of the administrative procedure. In any event, even if the documents to which it refers showed that Cementir did not participate in some international agreements and concerted practices, that would not be of such a nature as to shed a different light on the evidence referred to in the SO (recitals 9 and 61) and in the contested decision (recitals 18, 19 and 45), which shows that the Cembureau agreement was concluded at the meeting of 14 January 1983 (see paragraph 1095 above), or on the document entitled 'Meeting of H e a d Delegates, Paris,

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14 January 1983' (contested decision, recital 19, paragraph 4; document 33.126/11581) which is admissible as against Cementir (see paragraphs 329 and 330 above) and from which it is clear that Cementir's Head Delegate, Mr Cesareni, participated in that meeting and, therefore, in the conclusion of the Cembureau agreement.

F — Participation of Unicem, of the indirect members of Cembureau and of Buzzi in the infringement referred to in Article 1 of the contested decision

1439 Unicem was not represented at anv of the meetings of Head Delegates at which the Cembureau agreement was concluded or confirmed. The indirect members of Cembureau were indirectly represented by their national association at those meetings. Buzzi is wholly unconnected with Cembureau.

1441 The Court points out, however, that the Commission also relies on the presence of a Head Delegate, who was a member of staff of certain indirect members of Cembureau, namely Blue Circle, CBR, Ciments Français, Lafarge, Dyckerhoff, Heidelberger, Titan, ENCI, Asland and Cimpor, at the meetings to which the contested decision refers in finding that 'there is ... no doubt as to the participation of these undertakings in the agreement' (contested decision, recital 65, paragraph 3(b)). Although the above passage cited from recital 65, paragraph 3, first subparagraph, of the contested decision may cause confusion, it clearly emerges from the contested decision that the presence of a member of staff of an indirect member undertaking of Cembureau at one of the meetings of Head Delegates did not suffice for a finding that that undertaking had participated in the infringement referred to in Article 1 of the contested decision. Proof that an indirect member participated in the Cembureau agreement was not based on its presence at the meetings in question but rather on its participation in one or more measures implementing the Cembureau agreement. For that reason, the indirect members of Cembureau which had been represented by a member of their staff at one or more meetings of Head Delegates were considered — like the other indirect members and unlike the direct members — to have 'participated indirectly in the [Cembureau] agreement, through their participation in the various arrangements and measures agreed on to supplement the general agreement and/or assist in its implementation' (contested decision, recital 45, paragraph 10).

1444 It follows from the foregoing that, in the case of both the indirect members of Cembureau and in the case of Unicem and Buzzi, the proof of their participation in the Cembureau agreement is based on their participation in one or more measures implementing the Cembureau agreement and thus on their accession to that agreement.

1445 Consequently, the argument by Ciments Français and Unicem that their participation in the infringement referred to in Article 1 of the contested decision was proved on the basis that they had n o t openly distanced themselves must already be rejected at this stage.

1446 The measures implementing the Cembureau agreement are referred to in Articles 2 to 6 of the contested decision. They were regarded not only as constituent elements of the single and continuous Cembureau agreement but also 'as infringements in themselves' (contested decision, recital 4 6 , paragraph 1).

1447 In order to assess whether Unicem, the indirect members of Cembureau and Buzzi participated in the infringement referred to in Article 1 of the contested decision, it will therefore be necessary t o establish whether, first, they participated in the arrangements referred to in Articles 2 to 6 of the contested decision (see paragraphs 1450 to 4 0 1 5 below) and, second,

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1450 In Article 2 of the contested decision the Commission finds that there were two infringements of Article 85(1) of the Treaty, each of which related to exchanges of price information at Cembureau level.

1451 In Article 2(1) it finds that at the Cembureau Head Delegates and Executive Committee meetings Cembureau and its direct members participated in agreements on the exchange of price information designed to facilitate the implementation of the Cembureau agreement.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1452 In Article 2(2) it finds that Cembureau and its direct members participated in concerted practices involving periodic exchanges of price information, the purpose of which was also to facilitate the implementation of the Cembureau agreement.

1456 Following the measures of 2 October 1996 and 18 and 19 June 1997, Rugby (T-53/95), Castle (T-56/95), Titan (T-64/95), Aker (T-70/95) and E U R O C (T-71/95) also put forward evidence by which they sought to show that the administrative procedure could have had a different outcome, so far as concerns the infringements relating to exchanges of price information at Cembureau level, if they had had the full version of the SO and of the Commission's investigation file in order to prepare their defence against the SO. For the reasons set out in paragraph 2 5 7 above, those arguments must also be rejected.

1457 In order to assess the legality of Article 2 of the contested decision, the Court must ascertain whether the Commission rightly found that the agreements and the concerted practices which it found in that provision in fact existed, and whether it infringed the rights of defence of the

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applicants mentioned in paragraph 1454 above in not granting them full access to its investigation file during the administrative procedure.

Agreements on the exchange of price information at Cembureau meetings (Article 2(1) of the contested decision)

1460 VNC (T-32/95), SFIC (T-36/95) and Unicem (T-50/95) maintain that the infringement of which they are accused i n Article 2( 1 ) of the contested decision is a new objection which did not appear in the SO. SFIC claims that, in the SO, the only objection raised with regard to exchanges of information at Cembureau level concerned a concerted practice relating to the circulation of information on price lists (SO point 60, p. 169). However, in regard to the exchanges of information at issue, the contested decision draws a distinction between, on the one hand, agreements on exchanges of price information at the Cembureau meetings (Article2(1)) and, on the other, concerted practices relating to the circulation of price lists (Article 2(2)). SFIC goes on to state that, even if it were accepted that the two types of information exchanges were presented separately in the factual part of the SO, there is no consistency between the SO and the contested decision since no conclusion was drawn from that separate treatment in the legal assessment of the SO ( Wood Pulp II, cited at paragraph 106 above, paragraph 153).

II - 877

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95,.T-42/95 TO T -46/95 T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1464 In the present case, the specific exchanges of price information were presented in the SO (point 60, p. 169) as being the result of a 'concerted practice', whereas, in the contested decision, the Commission finally considered those specific exchanges to be the result of 'agreements' (Article 2(1)).

1465 Such a reclassification did not infringe the rights of the defence during the administrative procedure. First, the specific exchanges of price information were described in point 60 of the SO as contrary to Article 85(1) of the Treaty. Secondly, that infringement was established, and classified as a concerted practice, on the basis of the specific documentary evidence referred to in point 8 of the SO — evidence which was sent to SFIC at the same time as the SO — and not on the basis of a finding of parallel conduct on the market. In such a case, the only line of defence available to SFIC during the administrative procedure lay in challenging the documents on which the Commission relied in point 8 of the SO in concluding, at point 60, that there had been concerted action contrary to Article 85(1) of the Treaty. T h e actual classification adopted by the Commission in the SO to describe such allegedly unlawful concerted action was of no relevance in establishing such a defence.

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1466 It follows from the foregoing that the argument put forward by VNC, SFIC and Unicem to the effect that there are discrepancies between the SO and the contested decision must be rejected.

B — T h e e x i s t e n c e ofagreements on exchanges of price information during the Cembureau Mead Delegates and Executive Committee meetings

II - 879

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1471 The arguments put forward by Ciments Luxembourgeois and B D Z cannot be upheld. The bundle of documents referred to by the Commission in recital 16, paragraphs 2 to 7, recital 17, paragraphs 2 and 3, and recital 19, paragraphs 3, 5, 6, 7, 9 and 10, of the contested decision irrefutably shows that, during the discussions on intra-European trade (Head Delegates meeting held on 14 January 1983) or on the situation of the European market (Head Delegates meeting on 19 M a r c h 1984), comparative cement price levels in the Cembureau member countries were examined.

1472 While not denying that price information was exchanged during the H e a d Delegates meetings on 14 January 1983 and on 19 M a r c h 1984, Cembureau (T-26/95), Aalborg (T-44/95) and Irish Cement (T-60/95) claim that the data exchanged principally related to dumped imports originating particularly in Eastern Europe.

1475 The Court finds that there is in fact nothing to connect the document in question to the H e a d Delegates meeting on 30 M a y 1 9 8 3 . In recital 19, paragraph 6, of the contested decision, the Commission itself includes that document among those relating to the H e a d Delegates meeting held on 14 January 1 9 8 3 . The Commission has not therefore established that, during the H e a d Delegates meeting on 30 M a y 1 9 8 3 , price information had been exchanged or agreed to be exchanged. Such a conclusion is apposite not only with regard to those applicants which raised

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the argument under consideration, but also to the other applicants concerned bv Article 2(1), since they all essentially challenge the legality of that provision.

1476 Cembureau, Oficemen (T-59/95), ATIC and Cementir maintain that the Commission did not provide any evidence or explanation in the contested decision to justify the conclusion that exchanges of price information took place any time after the Head Delegates meeting on 19 March 1984.

1479 The Commission does not in fact make any allusion to Cembureau Executive Committee meetings either in its presentation of the facts in recital 16, paragraphs 2 to 7, concerning the circulation of specific price information or in the legal assessment which it then makes of those matters in recital 4 7 , paragraphs 1 to 5. The evidence mentioned by the Commission in recital 16, paragraphs 2 to 7 refers exclusively to Head Delegates meetings, namely those on

II-881

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

14 January 1983, 30 May 1983 and 19 March 1984 (see paragraphs 1470 to 1477 above). In recital 47, paragraph 1, the Commission simply states: 'At the meetings of Head Delegates held on 14 January 1983, 30 May 1983 and 19 March 1984 (see recital 16 above), the price situation in the various Cembureau countries was examined.'

1480 At most, one of the handwritten notes found among the documents relating to the H e a d Delegates meeting held on 14 January 1983 states, with regard to 'European Intra-Trade prices', as follows: 'some informal prices but could be obtained with authority of Executive Committee' (contested decision, recital 16, paragraph 3; document 33.126/11592). However, that document does not, of itself, make it possible to conclude that there were agreements on the exchange of price information' at 'the Cembureau Executive Committee meetings (Article 2(1)).

1481 In recital 4 7 , paragraph 1, the Commission adds that 'examination [of the price situation in the various Cembureau countries] was carried out at meetings during which the problem of increases in trade flows between member countries was discussed and solutions put forward . The exchanges of price information were thus purportedly the natural corollary to discussions on problems linked to trends in trade between the Cembureau countries.

1485 As to the Executive Committee meeting held on 9 November 1983, the Commission states (contested decision, recital 17(b)):

'The draft record of the Executive Committee meeting held on 9 November 1983 (document 33.322/286 to 294), point 2. "Current activities", letter (b) "Other questions currently being pursued by the Committee — Cooperation on exports", after having noted Mr Canellopoulos's finding that export prices had deteriorated, states: "Mr Bertran stated that he was personally optimistic as regards the maintenance of the volume of the overseas markets, but that the problem of price weakness nevertheless remained critical. He felt that it was time to re-examine the scope for improving cooperation, not only between the large exporting countries, but between all the members of Cembureau. One of Cembureau's roles had to be to contribute to the establishment of healthy but realistic competition". The record then noted Mr Heiberg's statement on voluntary restraints on exports by the Japanese and South Korean cement industries, and the statement of Sir J. Milne on the need to establish closer relations between the Export Policy Committee, set up outside Cembureau, and the Executive Committee, after Mr Van Hove had expressed the opinion "that no EEC rules opposed consultations and cooperation in overseas markets".'

1486 The Court finds that that passage does not enable it to be concluded that during the meeting in question, which clearly concerned cooperation on overseas exports, the problem of increases in trade flows between Member States was discussed and the price situation in the various Cembureau countries examined.

1490 In conclusion, the Commission was not justified in finding that there were agreements on exchanges of price information at Cembureau meetings other than those of the H e a d Delegates on 14 January 1983 and 19 M a r c h 1984.

1491 The link between the exchange of price information at those two meeting is established by various documents cited in the contested decision. The explanatory note accompanying the diagram on prices sent on 2 2 February 1984 by Cembureau to the H e a d Delegates in view of the forthcoming meeting of 19 M a r c h 1984 ('Cement price level in member countries on 31/12/ 8 3 ' ; contested decision, recital 16, paragraph 6; document 33.126/11715) states: 'As last year, this information is given in the attached diagram, which calls for the following explanations ...'. Secondly, the conclusion reached by the participants at the H e a d Delegates meeting held on 14 January 1983 as a result of the intra-European trade price comparison, namely that 'the price differentials, which could range from single to double within Europe, explained in part the new flows in intra-European trade' (see the five-page document distributed at the Executive Committee meeting on 25 M a r c h 1983 (contested decision, recital 17, paragraph 2; document 33.322/311) and the document entitled 'Meeting of H e a d Delegates, Paris, 14 January 1983 — Notes for the President' (contested decision, recital 17, paragraph 3; document 33.126/11632)) was reiterated at the H e a d Delegates meeting held on 19 M a r c h 1984, during which it was emphasised that 'the gap between extremes which is between 1 and 2 inevitably constitutes a temptation' (memorandum for the chairman for the H e a d Delegates meeting on 19 M a r c h 1984; contested decision, recital 16, paragraph 7, and recital 19, paragraph 9; document 33.126/11728).

1496 BCA's argument must therefore be rejected.

1497 For its part, Italcetnenti (T-65/95) maintains that the Commission has not proved the existence of an 'agreement' or 'concurrence of wills' on exchanges of price information at the Head Delegates meetings held on 14 January 1983 and 19 March 1984. Moreover, the information exchanged during those meetings was similar to that communicated periodically via the CPRF (see paragraph 401 above) of the Cembureau member countries, in regard to which the Commission found there to be a concerted practice (contested decision, Article 2(2)).

1498 However, the fact that the exchanges in question took place at meetings of itself suffices to conclude that they were the object of a concurrence of wills between the participants in those meetings, and thus of an agreement within the meaning of Article 85(1) of the Treaty (see the case-law cited in paragraph 1010 above). That analysis is borne out by the passage from the session notes of the Head Delegates meeting on 19 March 1984 (contested decision, recital 16, paragraph 7, and recital 19, paragraph 10; document 33.126/11735), according to which, during that meeting, 'it was agreed that a visual presentation of price ranges was an effective means of highlighting potential causes of conflict'.

1499 Furthermore, it has already been pointed out (see paragraph 1495 above) that the price information which was compared during the Head Delegates meetings on 14 January 1983 and 19 March 1984 and that which was periodically exchanged via the CPRF were materially different, despite a number of similarities illustrated, for example, by the document cited by the Commission in recital 16, paragraph 5, of the contested decision (document 33.126/11599). In those circumstances, subject to the assessment to be made as to the unlawfulness of the specific and periodic exchanges of price information at Cembureau level (see paragraphs 1501 to 1537 and 1620 to 1682 below), it must be concluded that the Commission was able, without

1502 In recital 4 7 , paragraph 1, the Commission states:

'... According t o the letter convening the meeting held on 14 January 1983 and the chairman's draft introductory statement (see paragraphs 2 and 5 of recital 19) and the m e m o r a n d u m and session notes for the meeting held on 19 M a r c h 1984 (see paragraphs 9 and 10 of recital 19), the purpose of the exchanges w a s " t o assess the risks entailed by an increase in certain imports coupled with a sharp reduction in certain prices" (see paragraph 5 of recital 19), to "highlight potential causes of conflict" (see paragraph 10 of recital 19) and "gradually t o reduce" the price differentials so as t o remove any temptation t o export (see paragraph 9 of recital 19).'

1503 It adds (first subparagraph of paragraph 2) that 'through the exchanges of price information, Cembureau and its members were aiming to achieve another objective, namely the introduction of fair competition rules amongst themselves for inter-member and external exports', rules whose content and purpose it subsequently sets out (second and third subparagraphs).

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1504 Finally, it points out (recital 47, paragraph 4):

1507 The applicants assert that the information exchanged during those meetings was official information in the public domain or, at least, obtainable by other means, and relating for the most part to State-controlled prices and, in any event, to current prices. According to the applicants, those data were historical and purely statistical, part of the normal and lawful activity of trade associations or approved statistical organisations. They did not differ fundamentally from the data which was circulated via the CPRF. They were approximate and involved average or hypothetical prices and thus did not reflect the prices actually charged by undertakings. They were in fact mere 'trend indicators'. On the participants' own admission (see the memorandum for the chairman for the Head Delegates meeting on 19 March 1984 (contested decision, recital 16, paragraph 7, and recital 19, paragraph 9; document 33.126/11728), and the session notes of the Head Delegates meeting held on 19 March 1984 (contested decision, recital 16, paragraph 7, and recital 19, paragraph 9; document 33.126/11735)), the data exchanged was difficult to compare in view of the great heterogeneity of pricing mechanisms, currency fluctuations which inevitably affect any international analysis and the fact that they did not concern the same category of cement for every country. They were devoid of any confidential information on reductions and discounts, transport costs, or rates of VAT, and did not identify any of the undertakings.

1508 The applicants claim that the specific exchanges of information on prices were not only not contrary as such to Article 85(1) of the Treaty, but, moreover, were neither capable nor intended to facilitate either of the anti-competitive objects which the Commission attributes to them in recital 4 7 , paragraphs 1 to 4, namely to reinforce the Cembureau agreement and to

1509 FIC and Cementir also maintain that the contested decision is vitiated by failure to state reasons as to the allegedly unlawful nature of the specific exchanges of price information which took place at Cembureau level. FIC claims that the documents mentioned in recital 17 of the contested decision, on 'discussions on "fair or healthy or correct"' competition, are not used against it and that the Commission had no intention of drawing any legal consequences therefrom. In those circumstances, the Commission could not legitimately use them to underpin its line of argument as to the unlawful nature of the specific exchanges of price information. Cementir, on the other hand, criticises the Commission for having merely referred to the documents mentioned in recital 16, paragraphs 2 to 7, without specifying its reasons for alleging that the exchanges of information were restrictive.

1510 In that respect, it should be recalled that, in Article 2(1) of the contested decision, the Commission objects to the exchanges of price information during the H e a d Delegates meetings held on 14 January 1983 and on 19 M a r c h 1984, in that the agreements from which they resulted were 'designed to facilitate the implementation of the [Cembureau] agreement'. Those exchanges are thus considered unlawful not in themselves but in that they were the linchpin or, at the very least, one of the linchpins of the Cembureau agreement.

1511 Accordingly, the Court need only ascertain whether or not they were carried out with the anti- competitive object found by the Commission in the contested decision. There is no need to examine whether the intrinsic nature of the information exchanged might or might not by itself make them unlawful.

1 5 1 5So far as concerns the Head Delegates meeting held on 14 January 1983, the Chairman's draft introductory statement — to which the Commission refers in recital 47, paragraph 1 — states as follows (contested decision, recital 19, paragraph 5; document 33.126/11584):

'I shall now give a very precise description of the aim and scope of our discussions:

— the first task, with your help, is to set out all the data we have in the three fields in question [namely the three items set down in the agenda for the meeting, including inter-European trade and, in particular, the national price situation].

— we shall thus be able to assess the risks entailed by an increase in certain imports coupled with a sharp reduction in certain prices, before this phenomenon has had time to spread in extent and gravity.

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JUDGMENT OF IS. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/9S TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

— it is therefore desirable gradually to reduce the gap, essentially by increasing the lowest prices (two thirds of output are sold at under $50, i.e. well below Japanese and US domestic prices), and also by moderating high price trends.'

1517 The notes on that meeting — also mentioned by the Commission in recital 47, paragraph 1 — draw the following conclusions from the comments generated by the 'table showing cement

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prices (in principle ex-works) in the member countries and in Japan and the USA' (contested decision, recital 16, paragraph 7, and recital 19, paragraph 10; document 33.126/11735):

'Although the data collected were not fully comparable in view of differences in price quotations, it was agreed that a visual presentation of price ranges was an effective means of highlighting potential causes of conflict ...'

1521 That argument must be rejected. The three handwritten notes in question were put forward by the Commission principally in order to prove that '[at] the meeting of Head Delegates held on 14 January 1983 ... the price situation in the various Cembureau countries was examined' (contested decision, recital 47, paragraph 1, first sentence). The Commission infers the anti- competitive object of those exchanges from the analysis of all the document extracts which it cites in the third sentence of recital 47, paragraph 1. Those extracts contain precisely, so far as concerns the Head Delegates meeting held on 14 January 1983, a passage from the Chairman's

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JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1524 Such a line of argument cannot be upheld. The information on the prices in the various Cembureau member countries exchanged during the Head Delegates meetings held on 14 January 1983 and 19 March 1984 was in the framework of comparisons whose purpose was to 'assess the risks entailed by an increase in certain imports coupled with a sharp reduction in certain prices' (Chairman's draft introductory statement for the Head Delegates meeting held on 14 January 1983; contested decision, recital 19, paragraph 5; document 33.126/11584 and to 'highlight potential causes of conflict' (session notes of the Head Delegates meeting held on 19 March 1984; contested decision, recital 16, paragraph 7, and recital 19, paragraph 10; document 33.126/11735), in the light of which it was deemed 'desirable so as to avoid 'temptation[s]' to export, 'gradually to reduce the gap [between extremes], essentially by increasing the lowest prices ... and also by moderating high price trends' (memorandum tor the Chairman for the Head Delegates meeting on 19 March 1984; contested decision recital 16, paragraph 7, and recital 19, paragraph 9; document 33.126/11728). As to the rest, the existence, in certain countries, of mechanisms for controlling or setting prices did not prevent the industries concerned from taking into account general trends expressed by those price comparisons either — on markets characterised by high price levels — by 'moderating requests for price increases lodged with the public authorities or competent bodies or — on markets

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1528 T h e argument put forward by Cembureau and Irish Cement must therefore be rejected.

1529 Fifthly, a number of the applicants put forward a series of arguments disputing the anti- competitive effects of the specific exchanges of price information referred to in Article 2(1) of the contested decision.

1530 Italcementi thus claims that the Commission neither showed nor even claimed in the contested decision that, following such exchanges of information, the prices of Italian cement were realigned on the prices charged on other markets. AGCI maintains that those exchanges of prices did not hinder the expansion of intra-Community trade for Greek cement as from the mid-1980s.

II - 893

JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1533 It is true that the extract in question illustrates not the anti-competitive effects of the specific exchanges of price information, but rather their unlawful purpose and their capacity for serving such an end, even though the data collected were not fully comparable.

1534 However, the confusion in the Commission's assessment in this regard is of n o consequence, since the agreements on the exchange of price information in Article 2(1) of the contested decision were found to be an infringement on the basis of their anti-competitive purpose, which was proven by the Commission (see paragraphs 1515 to 1519 above).

1535 Finally, Aalborg maintains that the Commission infringed Article 190 of the Treaty by failing t o explain in w h a t way the agreements referred to in Article 2(1) of the contested decision appreciably affected trade between M e m b e r States.

1536 However, since, in Article 2(1), it found the agreements on the exchange of price information to be an infringement solely on the ground that their purpose was anti-competitive, namely to facilitate the implementation of the Cembureau agreement, the Commission could confine itself to explaining, in recital 52 of the contested decision, h o w the purpose of those agreements had been to affect trade between M e m b e r States.

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CIMENTERIES CBR AND OTHERS V COMMISSION'

1541 VNC's argument must therefore be rejected.

1542 Secondly, SFIC (T-36/95) maintains that the Commission has not proved that it sent price information for the Head Delegates meetings.

1543 However, the Court points out that in Article 2(1) of the contested decision Cembureau and its direct members, including SFIC, are not accused of having communicated price information during or for the meetings at issue, but of having participated during those meetings in agreements on the exchange of price information designed to facilitate the implementation of the Cembureau agreement. Since SFIC has neither denied having participated in the Head Delegates meetings of 14 January 1983 and 19 March 1984 nor adduced any evidence of any reservation or dissent on its part with regard to the anti-competitive object of the exchanges of

II - 8 9 5

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

price information during those two meetings, it must be considered to have subscribed t o , or at least given the other participants the impression that it subscribed to, the unlawful object of those exchanges. The Commission was therefore justified in finding that it had unlawfully participated in the agreements on the exchange of price information during those meetings (see, to that effect, the case-law cited in paragraph 1353 above).

1547 B D Z has not adduced any evidence to show that, during the meetings, in question, it openly distanced itself from the anti-competitive purpose of the exchanges on price information. It must be considered to have subscribed to, or at least given the other participants the impression that it subscribed t o , the unlawful object of those exchanges. In those circumstances, and in view of w h a t has been pointed out in paragraph 1543 above with regard to the infringement complained of in Article 2(1) of the contested decision, the Commission was justified in rinding that B D Z participated unlawfully in the agreements on the exchange of price information during the H e a d Delegates meetings of 14 January 1983 and 19 M a r c h 1984 (see the case-law cited in paragraph 1353 above), and was not required to prove that B D Z had gathered information on prices from its members in preparation for those meetings, and/or that following those meetings it had passed on to its members the information exchanged during the meetings.

1548 BDZ's argument must therefore be rejected.

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CIMENTERIES CBR AND OTHERS V COMMISSION

1549 Fourthly, Unicem (T-50/95) claims that, since it did not participate in any of the meetings which gave rise to the exchanges of price information referred to in Article 2(1) of the contested decision, no liability can attach to it for them. It adds that its capacity as direct member of Cembureau alone does not demonstrate that it participated in that infringement.

1550 In the present case, it is not disputed that Unicem did not attend the Head Delegates meetings of 14 January 1983 and 19 March 1984 (see paragraph 1406 above).

II - 8 9 7

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/9S TO T-39/95, T-42/95 TO T-46/95 T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1557 However, BCA cannot claim not to know the type of information was exchanged during Head Delegates meetings and also assert (application, paragraph 36) that that information was not fundamentally different from the periodical information on prices which was already circulating via the CPRR

1558 In all events, it is not disputed that Sir John Milne, who had been appointed United Kingdom Head Delegate by the CMF, attended the Head Delegates meetings of 14 January 1983 and 19 March 1984 (contested decision, recital 19, paragraphs 4 and 8). The CMF could not therefore have been unaware of the fact that there were exchanges of price information during those meetings, and of the anti-competitive purpose of those exchanges. The Commission was therefore justified in finding that BCA, as successor to the CMF (see paragraphs 1337 to 1341 above), participated unlawfully in the agreements to exchange price information at the Head Delegates meetings of 14 January 1983 and 19 March 1984.

1559 Sixthly, Oficemen (T-59/95) and ATIC (T-63/95) maintain that, throughout the period of the infringement found against them in Article 2(1) of the contested decision — that is to say from 1 January to 14 April 1986 — there is no evidence of their having participated in the Cembureau meetings which gave rise to agreements on the exchange of price information designed to facilitate the implementation of the Cembureau agreement.

must be considered to have subscribed to, or at least given the other participants the impression that it subscribed to, the unlawful object of those exchanges. The Commission was therefore justified in finding that it had unlawfully participated in the agreements on the exchange of price information at those meetings (see, to that effect, the case-law cited in 1353 above).

1564 Eighthly, the Commission has not established that Italcementi participated in the Head Delegates meeting of 14 January 1983 (see paragraphs 1346 to 1349 above). That applicant cannot therefore be held to have taken part in the unlawful agreement on the exchange of price information concluded at that meeting. O n the other hand, Italcementi was represented at the Head Delegates meeting of 19 March 1984 (see paragraph 1351 above). Failing evidence t o the contrary, the Commission was entitled to find that it had participated in the agreement on the exchange of price information at that meeting.

1565 Accordingly, in the absence of evidence that Italcementi participated in the infringement in question before 19 March 1984, Article 2(1) of the contested decision must be annulled in so far as it finds that it participated in agreements on the exchange of price information designed to facilitate the implementation of the Cembureau agreement before that date.

1566 Ninthly, Cementir (T-87/95) maintains that the only Head Delegates meeting in which it participated at which price information was exchanged was that of 14 January 1 9 8 3 .

1567 It is not disputed that Cementir attended only one of the t w o meetings at which exchanges of price information took place, namely that of 14 January 1983.

1572 Tenthly, Italcementi (T-65/95), Cementir (T-87/95) and AGCI (T-103/95) submit that they — or, in AGCI's case, its members — had n o interest in or fear of intra-Community trade at the time of the disputed meetings, so that, as far as they were concerned, the exchanges on price information which took place at those meetings could not have had an anti-competitive purpose.

1573 However, whatever might have been the Italian and Greek undertakings' feelings with regard to intra-Community trade at that time, the fact remains that Italcementi did take part in the H e a d Delegates meeting of 19 M a r c h 1984, Cementir in that of 14 January 1983 and AGCI in both those meetings.

1574 Since none of those applicants has shown that, during those meetings, they expressed any reservation or dissent with regard to the ant-competitive purpose of those exchanges of price information, they must be considered to have subscribed to, or at least given the other participants the impression that they subscribed to the unlawful object of those exchanges. The Commission was therefore justified in finding that they had unlawfully participated in one and/ or both agreements on the exchange of price information reached at those meetings (see to that effect the case-law cited in paragraph 1353 above).

1575 The arguments put forward by Italcementi, Cementir and AGCI must therefore be rejected.

Concerted practices involving the periodic exchanges of price information (Article 2(2)(a) and (b) of the contested decision)

1576 According to Article 2(2) of the contested decision, Cembureau, FIC, Aalborg, SFIC, BDZ, AGCI, Irish Cement, Italcementi, Unicem, Cementir, Ciments Luxembourgeois, V N C , BCA,

1578 In the light of the arguments put forward by the applicants in contesting the legality of Article 2(2) of the contested decision, the Court must examine whether the infringement found had already been complained of in the SO (A); whether the Commission properly identified the price information referred to therein (B); whether the unlawful nature of those periodic exchanges of information (C) and the participation in the infringement by the various associations and undertakings concerned (D) are established; and whether the duration of the infringement was correctly assessed so far as concerns those undertakings and associations (E).

A ·— Consistency between the SO and the contested decision

1579 VNC (T-32/95), SFIC (T-36/95), Aalborg (T-44/95) and Irish Cement (T-60/95) maintain that their rights of defence were infringed during the administrative procedure, either in that the objection relating to 'the circulation of information on the Belgian and Dutch producers' minimum prices for supplies of cement by lorry and of the Luxembourg producer's prices, inclusive or rebates' (Article 2(2)(a) of the contested decision) was not set out in the SO, or in

II - 901

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/9S, T-42/95 TO T-46/9S, T-48/95, T-SO/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

that that objection was upheld in the contested decision on the basis of evidence which was not referred to in the SO and of which they were not informed during the administrative procedure.

1584 Before considering the merits of those various arguments, the Court points o u t that although, as will be stated below (paragraphs 1633 t o 1638), the periodic exchanges of price information referred to in Article 2(2) are all held t o have been unlawful on the ground that their object w a s to 'facilitate the implementation of the [Cembureau] agreement' and not because of the intrinsic nature of the data concerned, the Commission n o t only complains of that c o m m o n anti- competitive object, but also highlights, in recital 47(b)(i), the particular seriousness of the periodic exchanges on Benelux prices, emphasising that 'Cembureau a n d , through it, all its members receive[d] information that w a s particularly likely t o influence their competitive behaviour vis-à-vis the Belgian, Dutch and Luxembourg producers' (contested decision, recital 4 7 , paragraph 10; see also recital 4 7 , paragraph 12). Far from being irrelevant statements regarding the quality of the information exchanged on the Benelux countries' prices, the specific arguments in recital 47(b) (i) dealing with that information, which led t o the finding in Article 2(2)(a), thus emphasise the gravity of the periodic exchanges of such information and of the infringement of Article 85(1) of the Treaty which they constitute. In any event they show

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CIMENTERIES CBR AND OTHERS V COMMISSION

that in the contested decision the Commission takes a more severe view of them than the regular circulation of information on the other Cembureau countries' prices (see, to that effect, recital 47, paragraph 13, second subparagraph).

The memorandum adds: "[We generally communicate prices only to our members. ... Unfortunately, the price structures and cement types chosen as references by each country are so different that all the comparisons which have been carried out have proved erroneous]".

The memorandum concludes: "[A cement producer who is familiar with the standards and with the costs of transport can of course make use of such prices. However, we never carry out this work for our members]".'

II - 903

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-6S/9S, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1586 Thus, the SO did not allude, in its presentation of the periodic exchanges of price information, to the special nature of the information which was alleged to circulate between Cembureau and its members on Benelux prices. In the legal assessment, in point 60 of the SO, of the facts described in point 8, the Commission complained generally about the 'circulation of price lists' (SO, p. 168) or the 'circulation of information on price lists' (SO, p. 169) between Cembureau and its members, but did not highlight the allegedly more sensitive nature, under competition law, of the information on Benelux prices.

1587 Furthermore, it has already been found (see paragraphs 3 6 7 and 368 above) that documents 33.126/15099 to 15114 and 15136 to 15157, on which the Commission relied in recital 16, paragraphs 10 and 18, and recital 4 7 , paragraphs 7 and 9, in concluding in Article 2(2)(a) that the information which had circulated periodically between Cembureau and its direct members related, so far as concerned Belgium and the Netherlands, to 'minimum prices for supplies of cement by lorry', were documents that had not been referred to in the SO and were not in the Box (see paragraph 95 above).

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CIMENTERIES CBR AND OTHERS V COMMISSION

— Netherlands

Photocopies of the prices from 1984 to 1986

System of prices (practically free since 1985)

ENCI's public price list.'

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

System of prices (control)

Prices communicated by Ciments Luxembourgeois, the only cement producer.'

1591 The Court must therefore uphold the arguments put forward by V N C , SFIC, Aalborg and Irish Cement claiming that their rights of defence were infringed inasmuch as Article 2(2)(a) of the contested decision finds that the periodical circulation of information between Cembureau and its members related, so far as concerned the Belgian and Netherlands prices, to '[those t w o countries'] producers' minimum prices for supplies of cement by lorry' and, so far as concerns Luxembourg, '[that country's] producer's prices, inclusive of rebates'.

1592 As regards infringement of essential procedural requirements, the Court finds of its own motion (Interhotel v Commission, cited in paragraph 4 8 7 above, paragraph 14) that the rights of defence of the other applicants referred to in Article 2(2) of the contested decision were also infringed.

1593 It follows that Article 2(2)(a) of the contested decision must be annulled in so far as it finds that the periodical circulation of information between Cembureau and its members related, so far as concerned Belgian and Netherlands prices, to '[their] producers' minimum prices for supplies of cement by lorry' and, so far as concerns Luxembourg, '[its] producer's prices, inclusive of rebates'. Such annulment does not however affect the finding — which is not contested by the applicants — that information on Belgian, Dutch and Luxembourg prices circulated between Cembureau and its members during the period in question.

1598 In point 60 of the SO (pp. 168 and 169) the Commission explained how, in its view, 'Cembureau and its members' had infringed Article 85(1) of the Treaty,'from 1983 at least', by participating in a system of periodic exchanges of price information: first, that system was intended to 'to provide information on the conduct of Cembureau members in the various countries and thus to allow the "rules of fair competition" to be complied with'; secondly, its objective was 'to get Cembureau members to reduce price differences between the various countries so as to remove or reduce the temptation to export to the other members' markets'.

1600 The arguments put forward 'by Cembureau, V N C and BCA must therefore be rejected.

1601 In its reply, Aalborg also argues that the objection in respect of the periodic exchanges of price information was reformulated in the contested decision, inasmuch as, in the decision, the Commission claims that those periodic exchanges were intended to enable alignment of prices for exports which would have taken place notwithstanding the Cembureau agreement, whereas in the SO (point 60) the Commission interpreted those exchanges as an infringement that was closely linked to the rules of fair competition. Unicem (T-50/95) claims that in the SO (point 60, third paragraph) the circulation of price lists was considered to be the subject of a separate agreement or concerted practice, intended to set up coordination between the participants and to impose conditions that differed from normal market conditions, whereas in the contested decision (recital 47) the exchange of price lists was described as a supplementary agreement designed to facilitate the Cembureau agreement. Unicem considers it was unable to refute, during the administrative procedure, that 'facilitation' of the Cembureau agreement.

1602 The Court points out first of all that according to Article 2(2) of the contested decision, the periodic exchanges of price information were held contrary to Article 85(1) of the Treaty inasmuch as they were allegedly 'designed to facilitate the implementation of the [Cembureau] agreement'. It is therefore necessary to ascertain whether it was sufficiently clear from the SO that it was that particular anti-competitive purpose that was being complained of.

1606 The arguments put forward by Aalborg and Unicem must therefore be rejected.

B — Identification of the information referred to in Article 2(2)(b) of the contested decision

160- Cembureau (T-26/95) and Italcementi (T-65/95) claim that, in Italy, determination of cement prices was subject to the approval of the public authorities until 1993, rather than 1985, as the Commission states in recital 16 of the contested decision.

1608 The Court finds, however, that the Commission does not claim in the contested decision that Italian cement prices were liberalised from 1985. It only observes (recital 16, paragraph 16) that, from December 1985, the system of price controls was replaced by 'supervisory arrangements, under which each undertaking, on the basis of the cost trend survey carried out by the CIP amongst a number of producers, submits to the relevant Ministry the price list which it intend[ed] to apply, on which the Ministry [had to] reach a decision within 30 days'.

1609 In any event, neither Cembureau's nor Italcementi's assertions are of such a nature as to invalidate the conclusion drawn by the Commission, in Article 2(2)(b) of the contested decision, from the analysis set out in recital 16, paragraph 16, thereof, namely that the system of periodic exchanges of price information in force at Cembureau level related, so far as Italian prices were concerned, to 'trade price lists'.

1610 SFIC (T-36/95) claims that it only transmitted average price lists to Cembureau, not individualised data on French producers' actual prices. Those average prices were drawn up on the basis of price lists sent by its members, so that they cannot be described as 'average prices', contrary to what the Commission states in Article 2(2) of the contested decision.

1615 It should, however, be pointed out that, according to document 33.126/15122 referred to in the preceding paragraph, the following information was sent on 8 July 1985 by Irish Cement to Cembureau:

'The following are cement prices from 8 July 1985

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Bagged:

ordinary portland cement — from ... — to ...

1619 T h a t argument, which seeks t o deny that there was any significant value in the price information circulated on Greek prices at Cembureau level, will be considered below in paragraphs 1622 to 1647. At this stage it need only be observed that the Commission does not claim in the contested decision that the periodical circulation of information on prices in force at Cembureau level concerned, so far as concerns the Greek market, confidential commercial information. It states (recital 4 7 , paragraph 14, second indent) that, 'as regards ... Greece ... the price lists transmitted [were] those approved by the public authorities and relateĮd] t o the entire trade in each country', a finding which leads it to conclude, in Article 2(2)(b) of the contested decision, that the periodical circulation of price information between Cembureau members related, so far as concerned Greece, t o 'trade price lists'. AGCI's argument is not of such a nature as t o invalidate that finding.

I I - 911

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

C — The unlawful nature of the periodic exchanges of price information

1620 In Article 2(2) of the contested decision, the Commission objects to the system of periodical circulation of prices set up at Cembureau level because it was the result of 'concertéd practices designed to facilitate the implementation of the [Cembureau] agreement'.

1621 The applicants referred to in Article 2(2) of the contested decision put forward, in substance, eight arguments to contest that the periodic exchanges of price information were unlawful.

1624 The applicants claim that not only were the periodic exchanges of information on prices not as such contrary to Article 85(1) of the Treaty, Dut they were not capable of nor intended to serve either of the anti-competitive purposes which the Commission ascribes to them in the contested decision, namely of ensuring compliance with the Cembureau agreement and compliance with the rules on fair competition in intra-Cembureau exports. At the very least, the Commission adduced no evidence to substantiate its accusations. Cembureau adds that the CPRF's data

II - 912

CIMENTERIES CBR AND OTHERS V COMMISSION

could have provided useful information on another undertaking's intention to break the home- market rule only if it had contained details on factors such as transport costs, excess capacity, the ability to acquire a position in the export markets, the ability to comply with local legislation and an assessment of the likelihood of possible retaliatory measures. AGCI, for its part, disputes the Commission's argument that the regular circulation of prices at Cembureau level would enable the producers to align their export prices with prices charged by the local price leaders; it states that the setting of export prices also depended on the particular method of international maritime trading, and on the existence, at the time, of exchange controls.

1625 Cembureau, FIC, SFIC, BCA, Oficemen and ATIC state that, as the Commission itself observes in recital 4 7 , paragraph 13, of the contested decision, the information system at issue existed long before the adoption of the Cembureau agreement, which makes it impossible to take the view that the periodic exchanges referred to in Article 2(2) were intended to ensure or facilitate the implementation of that agreement. BCA considers that, before it came to the conclusion that from 1984 the system was intended to facilitate the implementation of the Cembureau agreement, the Commission should at least have shown that, from 1984, the date taken as the starting point of the infringement referred to in Article 2(2), a change had taken place in the way that system operated.

I I - 913

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1628 O n that question, the Court points out first that the price information circulated via the CPRF was not as neutral as the applicants make out.

1629 Thus, as the Commission rightly states in recital 4 7 , paragraph 14, first indent, of the contested decision:

'The price lists for D e n m a r k and Ireland relate to individual undertakings [Aalborg and Irish Cement respectively, the only domestic producers on their market at the material time]. The claim that the information is not individualised is thus invalidated.'

1630 Moreover, although the CPRF information actually related only to applicable price lists, the fact remains that, as the Commission rightly points out in recital 16, paragraph 8(i), of the contested decision, certain members sometimes sent to Cembureau notification of changes to the price list before they took effect. In those circumstances, in view of the regularity with which the price data was updated (see documents submitted by Cembureau to the Commission; documents 33.126/15098 to 15305), the arguments of the applicants seeking to reduce the value of the information exchanged to that of purely statistical or historical interest cannot be upheld.

1634 T h e Court must therefore ascertain whether or not those periodic exchanges were motivated by the anti-competitive object which the Commission attributes to them in the contested decision, irrespective of whether the intrinsic nature of the information thus exchanged could, by itself, have rendered unlawful the system by which they were periodically circulated.

1635 So far as concerns the alleged object of the periodic exchanges of price information, a comparison between the operative part and the legal assessment of the contested decision shows the same discrepancy as that pointed out in paragraphs 1512 and 1513 above with regard to the specific exchanges of price information at Cembureau meetings.

1636 Although in Article 2(2) the Commission finds those exchanges to be contrary to Article 85(1) of the Treaty because they are designed ' t o facilitate the implementation of the [Cembureau] agreement', in the legal assessment of those exchanges in recital 47(b) it attributes a twofold objective to them:

— 'implementing the agreement on non-transhipment to home markets and on the regulation of sales from one country to another' (recital 47, paragraph 13; see also recital 47, paragraph 15)

— 'prompting compliance [or getting competitors to comply] with the rules of fair competition in [or for] intra-Cembureau exports' (recital 47, paragraphs 10 and 13).

1637 For the reasons set out in paragraph 1513 above, that discrepancy is however of no significance.

As pointed out in paragraph 1 above, the discussions at the meetings of Head Delegates related essentially to the need to avoid the risks of any increase in imports, to check the causes of conflicts and to reduce price differences so as to prevent any temptation to export.'

1640 The fact that, on the one hand, periodic exchanges of price information continued after the H e a d Delegates meetings at which the Cembureau agreement was adopted and price differentials between the various member countries were discussed, and that, on the other, those exchanges were such as to ensure the implementation of that agreement therefore means, in the Commission's opinion, that as from that time they intended to implement that agreement.

1641 So far as concerns the temporal aspect, it is not disputed that the periodic exchanges of price information took place after the Head Delegates meetings of 1983 and 1984, at least until the end of 1988 (see, in particular, documents 33.126/15066 and 15096, cited in recital 16, paragraphs 8 and 9, of the contested decision).

1642 As regards whether those periodic exchanges were capable of ensuring implementation of the Cembureau agreement, the CPRF in fact enabled an undertaking with an order from a potential customer in another member country to k n o w the general level of prices in force at that time in that country and to align its export prices accordingly, so as to dissuade that customer from seeking cement outside his country, and so avoid competing with local producers. Simple knowledge of official or average prices in force on the market in question, which the system of periodic exchanges of information organised by the CPRF offered for each Cembureau member country, sufficed for those in the trade in order to pitch their export prices at a sufficient

1644 In those circumstances, the Commission was right to consider that, with effect from the Head Delegates meetings referred to in recital 19 of the contested decision, one of the objectives assigned to the system for the periodic exchanges of price information had been to ensure the implementation of the Cembureau agreement adopted at those meetings. The fact that the system had been in place well before the adoption of the Cembureau agreement did not preclude the Commission from finding — without the need to show that a change had taken place in the way that system functioned — that, from the moment when the Cembureau agreement had been adopted, one of the functions of such periodic exchanges of price information was to facilitate the implementation of that agreement. The Commission was thus justified in finding that from that time the system of periodic exchanges of price information had taken over and subsequently extended the anti-competitive object pursued by the discussions which took place during the Head Delegates meetings of 14 January 1983 and 19 March 1984 on 'the risks entailed by an increase in certain imports coupled with a sharp reduction in certain prices' (Chairman's draft introductory statement for the Head Delegates meeting held on 14 January 1983; contested decision, recital 19, paragraph 5; document 33.126/11584), on the 'pressure from inter-member trade' (notes of the Head Delegates meeting of 19 March 1984; contested decision, recital 19, paragraph 10; document 33.126/11736), and by the specific exchanges of price information at those two meetings.

1648 Secondly, Aalborg complains that the Commission did not express a view on the arguments, submitted by Aalborg during the administrative procedure, that its prices had been subject to supervision by the Danish competition authorities until 1989 and that the prices sent to Cembureau had previously been approved by those authorities and had been published.

1649 The Court points out, first of all, that in recital 16, paragraph 1 1 , of the contested decision, the Commission reproduces the extract from Aalborg's reply to the SO (p. 1 3 , footnote 2) in which Aalborg explains:

'The prices of Aalborg have until 1989 been subject to advance approval by the Monopoly Control Authorities, and revised price lists have been sent to Cembureau after approval and publication in Denmark.'

1650 In recital 4 7 , paragraph 14, second indent, of the contested decision, it expresses a view on the observations made by 'some undertakings' during the administrative procedure to the effect that 'the distribution of such price information [could not] have [had] any influence on the market, since the information [concerned] ... the price lists approved by the authorities'.

1651 It also explains, with regard to the Italian, Greek and Portuguese price lists which were also subject to State control at the time that:

'... even though it is public, [the undertakings] felt it necessary to send the information and to have it circulated. If the undertakings deemed it necessary to have the price lists for the trade in their country circulated, the reason is that such circulation of information was relevant to the

1655 The Court finds that documents 33.126/15118 and 15119 do in fact show that the changes made to the price list in the United Kingdom on 1 June 1985 and notified to Cembureau by the C M F on 8 May 1985 had been announced by C M F in the press on 6 March 1985.

1656 Moreover, in its reply to the SO (point 5 3 , p. 35), BCA pointed out:

'Since the C o m m o n Price and Marketing Agreement (the CPMA) was registered under the Restrictive Trade Practices Act (having been examined by the United Kingdom Restrictive Practices Court) the current price schedules prevailing under the CPMA (in addition to the CPMA itself) were available for public inspection during business hours at the offices of the Office of Fair Trading, the UK competition authority. All price changes made under the CPMA were registered promptly with the Office of Fair Trading and were also open to public inspection.'

II-919

JUDGMENT OF 15 3 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-46/95 T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T - 1 0 4 / 9 5 '

1657 If those statements had been taken into consideration by the Commission, they would at the very most have led it to alter its assessment, in recital 4 7 , paragraph 14, third subparagraph, of the contested decision, of the characteristics of the 'price averages sent for... the United Kingdom . They would not however have led it to reverse the factual findings set forth in recital 4 / , paragraph 13, following which it rightly concludes (see paragraphs 1639 to 1647 above), in Article 2(2) of the contested decision, that the periodic exchanges of price information on the various Cembureau member countries were designed, from 1984, to facilitate the implementa- tion of the Cembureau agreement.

1660 With regard to that note, B D Z also maintains that the Commission cannot rely, against it on Cembureau's statement that 'a cement producer w h o [was] familiar with the standards and with the costs or transport [could] of course make use of such prices' (contested decision, recital 16 paragraph 2 2 , and recital 4 7 , paragraph 15; document 33.126/15097). The note did not concern G e r m a n a v e r a g e prices, calculated and regularly published by the German National Statistical Office.

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CIMENTERIES CBR AND OTHERS V COMMISSION

1661 It should, however, be observed that the extract in question refers without distinction to all the price information described in the document preceding it (document 33.126/15096), which includes information on German average prices.

1662 In any event, BDZ's contention is not of such as nature as to invalidate the analysis set forth in paragraphs 1639 to 1647 above as to the correctness of the assessment made by the Commission in recital 4 7 , paragraph 13, of the contested decision regarding the anti- competitive purpose of the periodic exchanges of information on prices in the Cembureau member countries, including the distribution of German average prices, after the Head Delegates meetings of 1983 and 1984.

1663 BDZ's argument must, therefore, be rejected.

1665 It should be pointed out that in Article 8 the Commission orders the 'undertakings specified in Articles 1 to 7 ... forthwith [to] bring the infringements referred to in those Articles to an end (if they have not already done so) and ... henceforth [to] refrain, in relation to the markets for grey cement and white cement, from any agreement or concerted practice which may have the same or similar object, including any exchange of confidential commercial information designed to monitor the performance of any express or tacit agreement or any concerted practice involving the sharing of markets in the Community'. T h a t order, a general one, applies to the whole of the conduct found in Articles 1 to 7 of the contested decision. N o definitive conclusion may therefore be drawn from Article 8 as regards the Commission's assessment of the nature of the various kinds of price information referred to in Article 2(2).

1666 In any event, whatever interpretation or argument might be submitted on that point on the basis of Article 8, the periodic exchanges of price information referred to in Article 2(2) were found to be unlawful because they were intended to facilitate the implementation of the Cembureau agreement, an anti-competitive object which was in fact proved by the Commission (see paragraphs 1639 to 1647 above).

II- 921

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95 T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1667 The arguments put forward by Cembureau and ATIC must therefore be rejected.

1671 However, subject to proof to the contrary, which it was for the parties concerned to adduce, it must be held that the price information exchanged periodically at Cembureau level influenced the market conduct of the direct and indirect members of Cembureau. T h a t is all the more so since the concerted action in question took place on a regular basis over a long period and the direct and indirect members of Cembureau remained active on the market during that period (see, to that effect, the judgments cited in Commission v Anic, cited in paragraph 2 7 0 above, paragraph 1 2 1 , and Hüls v Commission, cited in paragraph 155 above, paragraph 162).

1672 Moreover, concerted practices such as those found in this case fall within the scope of Article 85(1) of the Treaty, even in the absence of anti-competitive effects on the market.

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CIMENTERIES CBR AND OTHERS V COMMISSION

1673 First, it follows from the actual wording of that provision that concerted practices are prohibited, regardless of their effect, where they have an anti-competitive object, as they d o in the present case (see paragraphs 1639 to 1647 above).

1674 Next, although the very concept of a concerted practice presupposes conduct on the market, it does not necessarily mean that that conduct should have the specific effect of restricting, preventing or distorting competition (Commission v Anic, cited in paragraph 270 above, paragraphs 122 to 124, Hüls v Commission, cited in paragraph 155 above, paragraphs 163 to 165, and Montecatini v Commission, cited in paragraph 270 above, paragraphs 123 to 125).

1680 Eighthly, Unicem, referring to Case T-34/92 Fiatagri and New Holland Ford v Commission [1994] ECR II-905, paragraph 9 1 , maintains that in a non-oligopolistic market such as the

II - 923

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

cement market the exchanges of information referred to in Article 2(2) of the contested decision, in actual fact, had a positive effect on competition.

1681 However, it must be observed that the description of the cement market put forward by Unicem, unsupported by any reasons, is refuted by the Commission's analysis in recital 12, in particular paragraphs 3 and 5, of the contested decision, concerning the nature of supply on the cement market, an analysis which the Italian undertaking does not even attempt to refute.

1682 In any event, Unicem's claim is not of such a nature as to invalidate the analysis set forth in paragraphs 1639 to 1647 above as to the correctness of the assessment made by the Commission in recital 47, paragraph 13, of the contested decision regarding the anti- competitive purpose of the periodic exchanges of price information from 1984 onwards.

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CIMENTERIES CBR AND OTHERS V COMMISSION

1686 So far as concerns specifically Denmark — Aalborg's country of origin — as well as Belgium and Ireland — the countries of origin of FIC and Irish Cement respectively — the document states as follows:

'— Belgium

Photocopies of the prices from 1984 to 1986 — more price increases after 1986

System of prices (full control until 1986, public price list sent on to Cembureau)

Photocopies of the prices for 1985 (no price changes since then, and nothing in 1984)

II - 925

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/9S TO T-39/95, T-42/95 TO T-46/95, T-48/9S, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

System of prices (practically free since 1986).'

1687 In document 33.126/15097, large parts of which were reproduced in the SO (see paragraph 1585 above), and which was also sent to the parties in the course of the administrative procedure, Cembureau states as follows:

'We generally communicate prices only to our members. External requests always originate from companies or consultants offices wishing to carry out price comparisons. Unfortunately, the price structures and cement types chosen as references by each country are so different that all the comparisons which have been carried out have proved erroneous. A cement producer who is familiar with the standards and with the costs of transport can of course make use of such prices. However, we never carry out this work for our members.'

II - 926

CIMENTERIES CBR AND OTHERS V COMMISSION

1692 Secondly, B D Z (T-48/95) claims never to have sent to its members — w h o allegedly never asked it to do so — information gathered on the prices applicable on the markets of the other Cembureau member countries; the information was of n o commercial interest whatsoever.

1693 However, it should be observed that, even supposing that that claim were true, it does not alter the fact that BDZ participated both actively (communicating information on the average German prices (contested decision, recital 16, paragraph 13; documents 33.126/15096 and 15161 to 15167)) and passively (receiving information on the prices applicable in the other Cembureau member countries) in the periodic exchanges of information on prices.

1694 BDZ's argument must therefore be rejected.

1695 Thirdly, Unicem (T-50/95) maintains that, since it did not participate in the Cembureau agreement, it cannot be accused of having sought to 'facilitate' the implementation of that agreement by way of an exchange of information.

exchanges of information on prices in the Cembureau member countries intended to facilitate the implementation of the Cembureau agreement.

1700 Unicem also observes that the Associazione Italiana Tecnico Economica del Cemento ('AITEC'), which collected and forwarded to Cembureau information relating to the Italian market, was not accused of having committed an infringement relating to the periodic exchanges of price information. Accordingly, it claims that there is no reason to hold it liable for that infringement either. Unicem adds that such a breach of the principle of equal treatment also affected its rights of defence in that it was allegedly forced to defend itself on its own in respect of conduct which involved other parties possessing information essential for the conduct of that defence.

1701 N o n e the less, the fact that AITEC was not charged with the infringement found in Article 2(2) of the contested decision cannot absolve Unicem of its liability for that infringement, provided that it is properly established (see, to that effect, Woodpulp If, cited in paragraph 106 above, paragraph 146).

1702 Moreover, the fact that AITEC was not held responsible for the infringement relating to the periodic exchanges of price information did not preclude Unicem from obtaining access, for example, through that association, to documents which might have supported its defence during the course of the administrative procedure.

1703 Unicem's arguments must therefore be rejected.

1704 Fourthly, BCA (T-54/95) claims that it has not been proven that it asked its members for, or received from them, any price information or that it helped t o forward such information to Cembureau.

1707 Fifthly, Oficemen (T-59/95) maintains that the sending by the Belgian, Dutch and Luxembourg producers of information on their prices to Oficemen and, through it, to the Spanish producers cannot be deemed to constitute a concerted practice contrary to Article 85(1) of the Treaty, since the Spanish producers were not actual or potential competitors of the Benelux producers. Irish Cement (T-60/95) and Italcementi (T-65/95) submit that the information on the Benelux countries' prices never had any particular value for them at a competitive level, since they had never exported to those countries or even contemplated doing so. Irish Cement criticises, in this regard, the reference made by the Commission to the judgment in Case T-6/89 Enichem Anic v Commission [1991] ECR II-1623, paragraphs 213 to 220, in footnote 215 to the contested decision when it alleged that Irish Cement had participated, together with other undertakings and associations, in a concerted practice relating to the periodic exchanges of price information on the Benelux countries (recital 47, paragraph 12). It states that the Commission did not seek to ascertain whether its participation in the alleged infringement was liable to restrict competition.

1708 T h e Court points out first of all that, although the applicants claim that they — or, in the case of Oficemen, its members — were neither actual nor potential competitors of the producers in the Benelux countries, they do not argue that they were neither actual nor potential competitors of producers from other markets about whose prices information was circulated through the CPRF. The information exchanged via the CPRF could thus have been useful to Oficemen and its members, to Irish Cement and to Italcementi from the point of view of observing the Cembureau agreement vis-à-vis those other markets.

1712 T h e extract from FIC's reply to the SO, cited in recital 16, paragraph 10, of the contested decision, merely sets o u t the passage from Cembureau's note referred t o in paragraph 1588 above (document 33.126/15096) — a m e m o r a n d u m which had been sent t o the addressees of the SO during the administrative procedure and which is therefore admissible against Irish Cement — and which says that, so far as concerns Belgium, 'confirmation [was given] of prices by telephone once a year'.

1715 It is clear from the foregoing (paragraphs 1712 t o 1714) that, without prejudice t o the conclusions set out in paragraph 1593 above as t o the findings in Article 2(2)(a) regarding the periodical circulation of price information on the Benelux countries, the fact that the various items of evidence referred t o in paragraph 1711 above may n o t be used against Irish Cement does n o t preclude the finding that Irish Cement participated in the system of periodic exchanges

II - 930

CIMENTERIES CBR AND OTHERS V COMMISSION

of information on prices, including Belgian prices, the 'Danish producer's individual price-lists' and the 'average prices charged in Germany' (Article 2(2)(b)).

1716 Seventhly, Italcementi (T-65/95) claims that AITEC did not receive any mandate from its members to communicate the data on Italian prices to Cembureau.

1717 The Court points out, however, that AITEC was not a member of Cembureau. It could not therefore have decided on its own initiative to pass on information on the Italian prices to Cembureau. As the Commission rightly points out in recital 16, paragraph 16, of the contested decision, AITEC was responsible for passing on that information to Cembureau 'on behalf of the Italian members of Cembureau', including Italcementi. Moreover, Italcementi does not deny having received, as a direct member of Cembureau, regular information on the prices in force in the other Cembureau member countries during the period under consideration. It is thus proved that Italcementi participated both actively and passively in the periodic exchanges of information on prices organised at Cembureau level.

1722 N e x t , the existence of a system of State control of prices in Greece and Italy did not preclude the cement industries of those countries from contributing, in accordance with the wish expressed at the H e a d Delegates meetings of 14 January 1 9 8 3 and 19 M a r c h 1984, t o the gradual reduction of the gap between the prices of the various Cembureau member countries by taking into account the general trends identified in the CPRF when requesting price increases from their public authorities.

1723 Ninthly, the three Italian producers Unicem (T-50/95), Italcementi (T-65/95) and Cementir (T-87/95) deny that their participation in the periodic exchanges of price information could have had an anti-competitive nature linked t o compliance with the Cembureau agreement, since they did not export t o the other Community markets.

1724 T h a t argument cannot be accepted.

1725 First of all, the alleged absence of export activities by those Italian cement producers in the Community may be explained, at least in part, by their concern t o respect the home markets of the other Cembureau members, in accordance with w h a t had been agreed at the H e a d Delegates meetings of 1983 and 1984. T h e information exchanged on the prices applicable in the various Cembureau member countries could thus be of interest t o the Italian producers w h o , faced with possible orders from customers from other Community markets, h a d available, through such information, the necessary data t o align their export prices with a view to complying with the Cembureau agreement.

1729 In this regard, the Court points out, first of all, that only the direct members of Cembureau to whom the contested decision is addressed are accused of the infringement referred to in Article 2(2). As regards the Greek market, AGCI was thus alone in being charged with that infringement; its member undertakings were not.

1730In those circumstances, the conduct adopted by the Greek undertakings with regard to the Community markets during the period covered by Article 2(2) cannot be taken into consideration when assessing whether AGCI did in fact participate in the infringement in question.

1734 In the light of the conclusions arrived at in paragraph 1593 above, there is n o longer any need t o examine that argument.

1735 Finally, AGCI complains that the Commission did not take into consideration the means used by the various members of Cembureau to transmit price information. In this connection, it points out that from 1 9 8 7 SFIC transmitted its information t o Cembureau only by telephone, refusing moreover to have it published in Cembureau's official documents (contested decision, recital 16, paragraph 12; document 33.126/15096). In AGCI's view, such a decision revealed that SFIC no longer intended t o transmit information on the prices applicable on its market t o certain members of Cembureau, including AGCI, in view of their or their members' activities on the French market.

1736 It must be stated that AGCI's line of argument is contradicted by the contents of the document to which it specifically refers. Although it is true that as from 1987, France ' n o longer [wanted] to see these prices published in the Cembureau documents', the fact remains that 'they [could] be communicated by telephone t o the M e m b e r s ' (contested decision, recital 16, paragraph 12; document 33.126/15096).

1737 In any event, the fact that SFIC refused, as from 1987, t o see information which it provided on French price lists published in Cembureau's documents does n o t make it possible t o rule out AGCI's participation, both active and passive, in the periodic exchanges of price information throughout the whole period under consideration. N o r does it undermine the analysis set forth in paragraphs 1639 t o 1 6 4 7 above as t o the correctness of the assessment made by the Commission in recital 4 7 , paragraph 1 3 , of the contested decision on the anti-competitive purpose pursued by Cembureau and its members, including AGCI, through those exchanges of price information, with effect from the H e a d Delegates meetings of 1983 and 1984.

1741 Furthermore, Unicem does not deny having received, as a direct member of Cembureau the information provided on the prices applicable in the other Cembureau member countries at least until 31 December 1988.

1742 On those grounds, Unicem's arguments must be rejected.

1743 BCA ( T - 5 4 / 9 5 ) poi n t s o u t t h a t , a s m a y be seen from Cembureau's note, referred to in paragraph 1588 above, neither the CMF nor itself sent price list information to Cembureau after 1985 BCA considers that the Commission failed to fulfil its obligation under Article 190 of the Treaty to provide reasons, as it did not explain in the contested decision how, after having noted that the CMF had ceased to provide price information to Cembureau after 1985, and failing evidence of transmission of such information by the BCA to Cembureau at any time, it could conclude that the CMF and BCA had participated in unlawful concerted practices involving the exchange of prices without interruption throughout the period under consideration.

1744 So far as concerns the alleged failure t o provide reasons, it is nevertheless clear from recital 47(b) of the contested decision, which deals with the legal assessment of the facts relating t o the periodical circulation of price information, that in Article 2(2) the Commission intended t o find as a n infringement n o t only active participation in such periodic exchanges through the supply of information on prices t o C e m b u r e a u , b u t , m o r e widely, involvement with the system of periodic information organised at C e m b u r e a u level, even if such involvement w a s restricted t o receiving information on the other markets.

1747 BCA's argument must therefore be rejected.

1748 T h e participation of Italcementi (T-65/95) in the H e a d Delegates meeting of 14 January 1983 has n o t been established (see paragraphs 1347 t o 1349 above). Moreover, as will be held below (paragraph 4 2 2 4 ) , there is n o evidence, such as evidence showing that Italcementi participated in a measure implementing the Cembureau agreement, to prove that it had acceded t o that agreement before taking part in the H e a d Delegates meeting of 19 M a r c h 1 9 8 4 , at which the agreement w a s confirmed.

1749 Since the periodic exchanges of price information were found t o be infringements in Article 2(2) of the contested decision in that they had been designed t o facilitate the implementation of the Cembureau agreement, the Commission h a d n o basis for finding that Italcementi participated in the infringement in question before 19 M a r c h 1984.

1750 It follows that Article 2(2) of the contested decision must be annulled in so far as it finds that Italcementi participated in the concerted practices involving the periodic exchanges of price information before 19 M a r c h 1984.

1751 Cementir (T-87/95) complains that no reasons whatsoever are given in the contested decision as regards the duration of the infringement relating to the periodic exchanges of price intormation.

II - 936

1755 Cementir's argument must therefore be rejected.

Access to the file

1756 Cembureau (T-26/95), FIC (T-30/95), VNC (T-32/95), SFIC (T-36/95), Aalborg (T-44/95) Un.cem (T-50/95), Irish Cement (T-60/95), ATIC (T-63/95), Italcementi (T-65/95) and Cementir (T-87/95) put forward a series of observations based on documents which they were able to consult following the measures of 2 October 1996 and 18 and 19 June 1997 regarding access to the file (see paragraphs 164 and 168 above). They sought to show that, by granting them only limited access to the SO and to its investigation file during the administrative procedure, the Commission infringed their rights of defence when it found the infringements alleged in Article 2 of the contested decision, since they did not have access to exculpatory documents.

1757 Those parties put forward essentially eight arguments to that effect.

II - 937

JUDGMENT OF 1 5 .3 .2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T - 4 8 / 9 5 , T-50/95 T O T - 6 5 / 9 5 , T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1760 Cembureau refers in this connection to a letter, in the file on France, which had been sent to it by SFIC on 2 7 November 1986 and which provides information on prices for four categories of cement following increases applied between 1 July and 1 N o v e m b e r 1986 (document 33 126/14938). According to Cembureau, the prices mentioned in that document, like those appearing in documents 33.126/15026, 15029, 15040 to 1 5 0 5 1 , were average prices. If its purpose in disseminating that information had been to enable the producers of various countries to align their prices, it would have been necessary to send them a range of prices rather t h a n a weighted average. Cembureau further states that SFIC had price data that was much more detailed than that which it sent to Cembureau, but that data was only sent to the French authorities to enable them to monitor trends in the national economy. Cembureau also states that a letter of 2 5 November 1986 from the C M F to the O F T (see paragraph 1147 above), found in the United Kingdom file, attests to the difficulties encountered i n attempting to compare prices between M e m b e r States (documents 33.126/17641 to 17654).

II - 938

CIMENTERIES CBR AND OTHERS V COMMISSION

producers) and 33.126/17623 to 17625 (draft letter of 6 September 1985 from the CMF to the O F T ) . In o r d e r to s h o w t h e g r e a t , d i v e r s i t y i n conditions of sale, it submits documents 33.126/17368 to 17431 (documents from Rugby between 1985 and 1990 showing the prices set for a variety of cement products), 17888 and 17889 (letter of 10 May 1985 from Ribble Cement c o n t a i n i n g ' c e m e n t p r i c e s i n Great-Britain') and 4853 ('factory price list for February 1988 of a French producer). Cembureau claims that, if it had had access to those documents during the administrative procedure, it would have been able to use them in support of the arguments it put forward in its defence to the effect that the data exchanged between its members through its offices, specifically (for the Head Delegates meetings) and periodically (through the CPRF), could not reasonably have had the object or effect of serving the anti- competitive objectives alleged in the SO and in recital 47 of the contested decision, since they did not contain the many elements involved in fixing actual prices to customers.

1765 Aalborg, in its observations of 12 January 1998, points to a series of documents which it claims show that many factors of major significance in the setting of cement prices were not included in the information on prices distributed through Cembureau. It thus mentions not only documents 3 3 . 1 2 6 / 4 8 5 3 , 11221 to 11223, 17436 to 17438 and 17881 to 17886, referred to in paragraph 1761 above, but also Lafarge documents (documents 33.126/4850 to 4852) as well

II - 939

JUDGMENT OF 15 3. 2000 - J O I N E D CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95,T-42/95TO T-46/95, T - 4 8 / 9 5 , T - 5 0 / 9 5 TO T-65/95, T - 6 8 / 9 5 TO T - 7 1 / 9 5 , T-87/95, T-88/95, T-103/95 AND T-104/95

1767 It shows the significance and the variability of:

— transport costs in setting cement prices, relying on documents 33 126/5038 to 5051, 11119 17905 to 17917 et 4869 to 4910, mentioned in paragraphs 1761 and 1/65, as well as documents 33.126/9659, 8155, 9672, 9673 and 4994 to 5000;

— rebates, relying on documents 33.126/4982, 11221 to 11241 and 17437, mentioned in paragraphs 1761 and 1765;

— the quality of the product, relying on documents 33.126/17624, 17625 and 17641 to 17646, mentioned in paragraphs 1760 and 1761;

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CIMENTERIES CBR AND OTHERS V COMMISSION

1770 Italcementi submits, in its observations of 10 February 1997, that, in the national files there were a number of documents which would have enabled it, during the administrative procedure to support its argument that the statistical data disseminated through Cembureau was overall information of a general nature, relating in every case to the past, rather than individualised data on each and every undertaking. In particular, it would have been better able to show that the information to which it had access at Cembureau level was totally devoid of any commercial usefulness, since it did not give any indication as to rebates or payment terms It claims that documents 33.126/15026 and 15040 to 15051, mentioned in paragraph 1760 above, document 33.126/15025, and the letter of 27 November 1986 from SFIC to Cembureau (document 33.126/14938), mentioned in paragraph 1760 above, indicate that the information provided in respect of the French market consisted of approximate figures, and when sent to Cembureau was accompanied by the following warning: 'any comparison with previously published prices is unreliable and no significance attaches to any price differential between categories'. It refers also to the draft letter from the CMF to the OFT (documents 33 126/17624 and 17625) mentioned in paragraph 1761 above, containing a full explanation of the various factors which made it impossible to make any comparison of sales prices of cement in the various Member States. It also refers to the extract from the minutes of the CMF meeting of 2 October 1985 (document 33.126/17097) mentioned in paragraph 1762 above, relating to the statements of the Chairman of Cembureau complaining about the unequal contribution of the members to the exchanges of statistics for the 'Cembureau European Annual Review'.

enclosed table brings together the information collected in respect of each country by the most reliable means. In the absence of more precise information, those are the figures published by Cembureau.' Documents 33.126/17370 to 17374, mentioned in paragraph 1761 above, indicate that because of various factors prices in a single company could vary widely according to the customer or the sales area. Document 33.126/3826 shows, for its part, in the view of the applicant, that hundreds of pages were sometimes necessary to describe the pricing policy of a single company, which proves that the prices transmitted by Cembureau could not have favoured comparisons with anti-competitive objectives. Finally, documents 33.126/17396 to 17399, 14536 and 4853, mentioned in paragraph 1761 above, show that the extreme simplification of the data provided by Cembureau (no mention of essential elements such as VAT, transport costs, discounts and terms of sale) is in marked contrast to the complexity of the structure of the prices actually applied by each individual undertaking.

1772 Cementir refers, in its observations of 29 December 1997, to documents 33.126/4982/54 to 70, 4869 to 4910, 14536, 4850 to 4853 and 17905 to 17917, mentioned in paragraphs 1761 and 1765 above, document 33.126/17918, and to documents 33.126/4919, 4920,4954 to 4982 and 3826, which it claims show that the prices of a single company could vary greatly, in particular according to the location of its factory or customer, rebates, transport costs, payment methods, type of packaging, services provided according to product type, distribution system, national and/or local taxes and charges, etc. The data provided by Cembureau, which did not include those various factors, wouldthus have been of no use in determining with precision what price was actually applied by the various cement producers.

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1775 Despite those various arguments, the Commission was justified in concluding (see paragraphs 1515 to 1519 and 1639 to 1647 above), in the light of the factual findings in recital 47, paragraphs 1, 4 and 13, of the contested decision, that the specific and periodic exchanges of price information referred to in Article 2(1) and (2) were designed, contrary to Article 85(1) of the Treaty, 'to facilitate the implementation of the [Cembureau] agreement' (Article 2 of the contested decision).

1776 Any additional comments which the applicants could have made at the time in order to emphasise the general and approximate nature of the price information exchanged, specifically and periodically, at Cembureau level, could not therefore have had even a small chance of altering the outcome of the administrative procedure.

1777 Finally, document 33.126/15170, put forward by Aalborg, was accessible throughout the course of the administrative procedure (see paragraph 2 5 0 above). Aalborg could thus have used it to support its reply to the SO. In those circumstances, it cannot now rely upon it to prove that its rights of defence were infringed during the course of the administrative procedure.

1778 Secondly, Cembureau points out, in its observations of 10 February 1997, that a report of the CMF meeting of 11 February 1987 (documents 33.126/17203 to 17205) records the suspension, pending legal advice, of the transmission of price information by CMF to Cembureau in the light of the ending of the CPMA (see paragraph 91 above). It considers that, if it had been aware of that document during the course of the administrative procedure, it would have been justified in claiming that it was highly unlikely that the CMF (and its members) would consciously participate in illegal arrangements at European level, when it was taking such care to comply with competition law, both at Community and national level.

1783 However, that document, if it could have been put forward by Cembureau during the administrative procedure, would not have been of such a nature as to invalidate the evidence contained in the bundle of documents referred to in recital 16 of the contested decision, which shows that there were specific and periodic exchanges of price information, including Greek price information, at Cembureau level during the period under consideration.

1787 Thus, in recital 16, paragraph 16, the Commission explains that, during the period under consideration, prices in Italy were subject, first, to a control system and, subsequently, from the

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end of 1985, to supervisory arrangements. It points out that until 30 November 1985 AITEC sent to Cembureau the Italian prices 'as authorised for the entire country bv the public authority and officially published' and that although, from December 1985, prices were no longer officially published, 'each producer made it prices public' and 'an AITEC announcement [was] published in the specialised press'.

1788In recital 16, paragraph 19, it notes that, in Portugal, prices were subject to the declared prices system up to 1987 and that, since then, they have been subject to the 'price agreement system'.

1789 In recital 16, paragraph 21, it points out that until February 1987 there existed a Common Price and Marketing Arrangement among the United Kingdom producers. Under that agreement, 'prices and terms of sale were decided on jointly and notified to the British authorities'.

1793 As regards Aalborg, it should be added that documents 33.126/15134, 15135 and 15201, which that applicant relies on in its observations of 12 January 1998 (see paragraph 1785

II - 945

JUDGMENT OF 15. 3. 2000 - J O I N E D CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

above), were accessible to it during the administrative procedure (see paragraph 250 above). Aalborg could thus have used them in support of its reply to the SO. In those circumstances, it cannot now rely upon them to prove that its rights of defence were infringed during the administrative procedure.

1794 For its part, ATIC maintains, in its observations of 10 February 1997, that h a d the documents referred t o in paragraph 1769 above been made available t o it during the administrative procedure, it would have been possible for it t o strengthen its argument that the information which it had transmitted t o Cembureau h a d n o t contained any confidential material and were not therefore of such a nature as t o facilitate the adoption of conduct which restricted competition.

1795 However, none of the documents relied on by ATIC relate t o the price information which it transmitted t o Cembureau during the period under consideration. Accordingly, none of them would have enabled ATIC t o emphasise the anodyne nature of the data which it had itself provided t o Cembureau at that time.

1800 In its observations of 12 January 1 9 9 8 , Aalborg, relying principally on d o c u m e n t 3 3 . 1 2 6 / 5 1 6 , states that the documents t o which it w a s given access following the measures of 2 October 1996 and 18 and 19 June 1997 attest to the fact that the exchanges of price information which took place at Cembureau level were fulfilling a classic task of a trade association, namely the drawing up of general statistics on prices designed to enable construction costs to be calculated or to support requests for price increases lodged by the industries with the price control authorities.

1801 In its observations of 28 N o v e m b e r 1 9 9 7 , Unicem maintains that a t h o r o u g h e x a m i n a t i o n of the Commission's investigation file reveals that the frequency of the exchanges of d a t a on prices at the time was at its highest a r o u n d 1 9 8 3 , w h e n the European cement producers studied, under the auspices of the Commission, the feasibility of the basing point pricing system; t h a t proves t h a t the exchanges of price information at C e m b u r e a u level were lawful. It refers specifically to documents 33.126/814 and 815.

1802 Cementir relies, in its observations of 2 9 December 1 9 9 7 , on d o c u m e n t s 3 3 . 1 2 6 / 2 1 6 7 , 1 8 0 8 1 and 1 8 0 8 2 , which it claims illustrate the existence in certain markets of price information exchange mechanisms which deprived the systems of exchanges of price information set u p at C e m b u r e a u of any usefulness, or at least of any anti-competitive effect.

1805 Sixthly, in its observations of 7 January 1998, SFIC refers to a document in the Ciments Français file (documents 33.126/4125 to 4127) which it claims proves that the information used by that company for the Belgian market was not the result of exchanges between FIC and itself, but came from the customs authorities. SFIC is of the view that that document would have been useful in its defence against the objection raised in respect of the exchange of statistics with FIC.

1806 The Court observes, however, that that document would not have been of such a nature as to invalidate the evidence contained in the bundle of documents referred to in recital 16 of the contested decision, which attest the existence, at Cembureau level, of specific and periodic exchanges of price information among Cembureau's direct members, including FIC and SFMC, the purpose of which was to facilitate implementation of the Cembureau agreement.

1807 For its part, ATIC maintains, in its observations of 10 February 1997, that none of the documents to which it had access following the measure of 2 October 1996 mentions the contacts it allegedly had with other national associations concerning exchanges of price information.

1808 However, even if such information were to have been adduced by ATIC during the administrative procedure, it would not have enabled it to invalidate the evidence contained in the bundle of documents referred to in recital 16 and, more particularly, in paragraph 19, of the contested decision, which proves its participation in the system of exchanges of price information organised at Cembureau level.

1812It should, however, be recalled that the exchange of price information which took place during the Head Delegates meeting of 14 January 1983 was found to be objectionable in Article 2(1) of the contested decision not because of the degree of sensitivity of the data to which it related but because its object was to facilitate the implementation of the Cembureau agreement. Any comments which Aalborg could have made during the administrative procedure on the basis of the CPMA notification file would not have enabled it to invalidate the factual findings on which the Commission relied (see paragraphs 1515 to 1519 above), in recital 47, paragraphs 1 and 4, of the contested decision, in concluding that, during the Head Delegates meeting of 14 January 1983, the object of the exchange of information during which specific indications on United Kingdom prices were given was to facilitate the implementation of the Cembureau agreement. Those comments did not therefore have even a small chance of altering the outcome of the administrative procedure.

1813 Eighthly, ATIC claims, in its observations of 10 February 1997, that it is apparent from the national chapters of the SO and from the national files that the involvement of the other associations in the conduct referred to in Article 2 of the contested decision was much more flagrant that its own. Access to those national documents during the administrative procedure would have enabled it to avoid being dealt with as severely as those other national associations in the contested decision.

1814That argument lacks precision and is supported only by a vague, general reference to the national chapters of the SO and to the files relating to them, without any specific example. For that reason alone, it cannot be upheld.

1817 It is apparent from the whole of the foregoing considerations (see paragraphs 1450 to 1816 that:

— Article 2( 1 ) of the contested decision must be annulled in its entirety in so far as it concerns Unicem, Oficemen and ATIC;

— Article 2( 1 ) of the contested decision must be annulled with regard to Italcementi in so far as it finds that it participated in the infringement in question before and after 19 March 1984;

— Article 2( 1 ) of the contested decision must be annulled with regard to Cementir in so far as it finds that it participated in the infringement in question before and after 14 January 1983;

— Article 2(1) must be annulled with regard to FIC, VNC, Ciments Luxembourgeois, SFIC, Aalborg, BDZ, BCA, Irish Cement and AGCI in so far as it finds that they participated in agreements on the exchange of price information intended to facilitate the implementation of the agreement referred to in Article 1 of the contested decision at Head Delegates meetings subsequent to the meeting of 19 March 1984, and at Cembureau Executive Committee meetings;

— Article 2(2)(a) of the contested decision must be annulled with regard to all the applicants concerned in so far as it finds that the circulation of information which took place between them related, so far as concerns Belgian and Netherlands prices, to those two countries' producers' minimum prices for supplies of cement by lorry and, so far as concerns Luxembourg, the prices, inclusive of rebates, of that country's producer;

Introduction

1819 The Commission alleges, in Article 3(1)(a), (b) and (c) of the contested decision, three concerted practices corresponding to a similar number of bilateral relationships allegedly constituting infringements between the Italian cement producer Buzzi, on the one hand, and the three French cement producers Lafarge, Ciments Français and Vicat, on the other.

1820 In Article 3(1 )(a) it complains that Lafarge and Buzzi infringed, from 26 November to 31 December 1988, the provisions of Article 85(1) of the EC Treaty by participating in a conceited practice involving the sharing of the market in southern France and the restriction of their autonomy of conduct with regard to production sources.

1821 In Article 3(1 )(b) it complains that Ciments Français and Buzzi infringed, from 17 March to 31 December 1988, the provisions of Article 85(1) of the Treaty by participating in a concerted practice involving information on current prices and a forecast of price increases, with a view to the restriction of their autonomy of conduct.

1822 In Article 3(1 )(c) it complains that Vicat and Buzzi infringed, from 11 May 1983 to 31 December 1988, the provisions of Article 85(1) of the Treaty by participating in a concerted

II - 9 5 1

1827 As stated above (see paragraphs 1819 to 1822 above), although the Commission finds that 'continuity is thus evident in Buzzi's conduct', whose 'information ..., even though it w a s provided individually to the three French producers, ultimately benefited all three' (contested decision, recital 4 8 , paragraph 7), separately finds, in Article 3(1) of the contested decision, three concerted practices, without mentioning on each occasion the same addressees, while deeming each of those practices to have been of different duration. The only result c o m m o n to all of them, which it bases on its findings with regard to Buzzi's conduct, is the date on which the three infringements ended, which it fixes at 31 December 1988 for each of them (recital 4 8 , paragraph 7, of the contested decision).

1828 In order to assess the legality of Article 3 ( 1 ) of the contested decision, it is necessary to ascertain whether the Commission was entitled to find three concerted practices and whether it breached the rights of defence of Vicat, Ciments Français and Buzzi.

II - 952

CIMENTERIES CBR AND OTHERS V COMMISSION'

Concerted practice between Lafarge and Buzzi found in Article 3(1 )(a) of the contested decision

A — Introduction

— Close the plant. Negotiate markets. Set up supply company, for supplies either from La Malie, or from Robilante, or through imports (e.g. Greece).

I said there was no urgency as we had 15 or 20 years of reserves. The problem was chiefly the operating licence.

II - 953

JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-SO/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/9J, T-103/95 AND T-104/95

Buzzi's position:

— The market belonged to Ciments Lafarge.

B — Correspondence between the Statement of Objections (SO) and the contested decision

1831 Buzzi states that it is surprised to be accused of having participated in a concerted practice with Lafarge with the object of restricting their autonomy of behaviour in the management of their sources of supply, when no such allegation appeared in the SO.

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CIMENTERIES CBR AND OTHERS V COMMISSION

1832 It must first of all be observed that, in the 'Facts' of the SO on the 'Implementation of the "Cembureau agreement or Principle of not transhipping to internal European m a r k e t s " France- Italy' and in particular on 'relations between Buzzi and Lafarge', the only passage of the abovementioned record of the meeting of 26 November 1988 between Lafarge and Buzzi which the Commission mentioned was that summarising Buzzi's position (see paragraph 1829 above). The Commission further stated: 'The introduction to the record states that: "Cette rencontre fait suite à celle que nous avions eue à Paris avec Sandro et Emanuele Buzzi en septembre dernier, au cours de laquelle nous avions envisagé la possibilité d'un accord sur les affaires de b é t o n " (That meeting followed the one we held in Paris with Sandro and Emanuele Buzzi last September, during which we envisaged the possibility of an agreement on cement)' (SO, point 10, p. 21). On the other hand, the Commission did not refer in the facts of the SO to the excerpt from the record of the meeting relating to the 'three options' envisaged by Buzzi 'following the meeting with G. Liduena' — namely to build a clinker plant near the sea, build a grinding plant or close the plant, negotiate markets and set up a supply company for supplies either from La Malie, or from Robilante, or through imports (e.g. Greece) — at the end of which Lafarge had said to Buzzi that there was no urgency because there were 15 or 20 years of reserves.

C — The existence of an anti-competitive concerted practice between Lafarge and Buzzi with regard to the sharing of the south of France market

1836 In view of the conclusion arrived at in the preceding paragraph, all that need be ascertained is whether the Commission was legally justified in considering that Lafarge and Buzzi were guilty, when they met on 26 November 1988, of a concerted practice contrary to Article 85(1) of the Treaty in so far as the meeting concerned 'the sharing of the market in the south of France' (Article 3(1 )(a) of the contested decision).

1837 Lafarge observes that the Commission relies on a single document, which is n o t corroborated by any other evidence or indication, in order to prove the accusation it makes in Article 3(1)(a) of the contested decision. Buzzi is of the view that the Commission disregarded the doctrine laid d o w n in the case-law on the burden of proof by basing its allegations solely on the internal Lafarge m e m o r a n d u m concerning the 2 6 November 1988 meeting.

1838 It should however be pointed out that there is n o principle of Community law which precludes the Commission from relying on a single piece of evidence in order to conclude that Article 85(1) of the Treaty has been infringed, provided that its evidential value is undoubted and that the evidence itself definitely attests to the existence of the infringement in question. In this connection, in order to assess the evidential value of a document, regard should be had first and foremost to the credibility of the account it contains. Regard should be had in particular to the person from w h o m the document originates, the circumstances in which it came into being, the person to w h o m it was addressed and whether, on its face, the document appears sound and reliable (Opinion of M r Vesterdorf acting as Advocate General in Rhône-Poulenc v Commission, cited in paragraph 1053 above, p . II-956).

1843 Next, Lafarge and Buzzi put forward eight arguments, essentially denying the existence of an anti-competitive concerted practice involving the sharing of the market of the south of France.

1844 First, Buzzi claims that the Commission committed a manifest error of assessment in stating, at recital 20, paragraph 2, of the contested decision that 'in the period in question, the prices charged by Italian producers were roughly 2 0 % lower than prices charged by French producers'. In actual fact, from 1983 to 1988, the prices charged by Italian producers were always, apart from those for 1988, higher than those charged by French producers, as shown by a comparison between its own Cement 4 2 5 prices and those charged by Vicat for CPJ 45 cement (Annex 17 to the application).

1845 The Court points out that the figures produced by the Italian cement industry at the hearing of 2 March 1993 show that the French prices were, on average, always 2 0 % higher than the Italian prices during the period 1981 to 1991 (contested decision, recital 9, paragraph 6, and the tables in Annexes 9-3 and 9-4).

1846 Furthermore, the analysis put forward by Buzzi in fact challenges the Commission's argument for the period prior to that under consideration in respect of the infringement at issue.

1847 In any event, it does not make it possible to disregard the statements, cited above, which it made to Lafarge during the meeting of 26 November 1988:

'— No desire to enter Côte d'Azur to upset the market ...

1849 In that connection, the Court points out that the concept of concerted practice does in fact imply the existence of reciprocal contacts (Opinion of Advocate General D a r m o n in Woodpulp II, cited at paragraph 697 above, points 170 to 175). T h a t condition is met where one competitor discloses its future intentions or conduct on the market to another when the latter requests it or, at the very least, accepts it. Perusal of the covering letter with which M r Liduena of Lafarge distributed within his company the minutes of the meeting of 26 November 1988 reveals that the meeting was held at the behest of Lafarge. Moreover, there is nothing in those minutes d r a w n up by Lafarge which shows that its representative expressed any reservations or objections whatsoever when Buzzi informed it of its position regarding the market in the south of France. In those circumstances, the applicants cannot seek to reduce Lafarge's attitude during the meeting in question to the purely passive role of a recipient of the information which Buzzi unilaterally decided to pass on to it, without any request by Lafarge.

1850 It may be inferred therefrom that the contacts between Lafarge and Buzzi were motivated by the element of reciprocity essential to a finding of concerted practice. Accordingly, the applicants' arguments must be rejected.

1851 Thirdly, Buzzi denies the existence of an anti-competitive concerted practice claiming, first, that the views which it expressed to Lafarge during the meeting in question only concerned present and past circumstances, rather than anticipating future actions, and, secondly, that it had not given any undertaking to Lafarge as to its future conduct on the market in the Côte d'Azur.

Article 85(1) of the Treaty (see most recently the judgments of the Court of Justice in Commission v Anic, cited in paragraph 270 above, paragraph 117, and Hüls v Commission, cited in paragraph 155 above, paragraph 160). In order to prove that there has been a concerted practice, it is not therefore necessary to show that the competitor in question has formally undertaken, in respect of one or several others, to adopt a particular course of conduct or that the competitors have colluded over their future conduct on the market (Opinion of Advocate General Darmon in Woodpulp II, cited at paragraph 697 above, point 172). It is sufficient that, by its statement of intention, the competitor should have eliminated or, at the very least, substantially reduced uncertainty as to the conduct to expect of the other on the market (Case T-4/89 BASF v Commission [1991] ECR II-1523, paragraph 242; and Hercules Chemicals v Commission, cited at paragraph 140 above, paragraph 260). However, in the present case, Buzzi, after acknowledging, at its meeting with Lafarge on 26 November 1988, that the market belonged to Lafarge, told it that it had no desire to enter Côte d'Azur to upset a market in which it had had only two or three customers in the last 20 years, that war was pointless, and that it was necessary to make arrangements to avoid conflicts. By doing so, it gave Lafarge an assurance, with an anti-competitive intent, as to the ·—· in this case peaceful — attitude which the latter could count on as regards the market in the south of France.

1854 However, the record of the 26 November 1988 meeting does not contain any reference to the various factors put forward by the applicants seeking to explain the real reasons and significance of the remarks made by Buzzi to Lafarge. O n the contrary, statements such as 'a war is pointless' or 'agreements must be concluded to avoid conflict' undermine the analysis defended by the applicants. They make it clear that the difficulties and obstacles of all kinds put forward by them did not prevent a certain level of interpénétration of French and Italian border markets. According to the record of the meeting, Buzzi had furthermore stated that it had had two or three customers in the last 20 years in the Côte d'Azur market. During the administrative procedure, it stated that 'despite a number of obstacles which it had [had] to overcome (transport costs, customs, difference in the quality of Italian and French cement), and although

II - 959

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

it could have sold its products on closer and more profitable markets, it [had] been exporting worthwhile quantities ("interessanti quantità") of cement to the south of France' and, 'at prices lower than those charged by French producers' (paragraph 4.3 of Buzzi's reply to the SO; contested decision, recital 20, paragraph 7). Lafarge and Buzzi were thus competitors, at least potentially, on the south of France market.

1859 Sixthly, Buzzi claims that, although the effect of its statements could have been to guarantee to its French competitors a sharing of the south of France market, it would have been illogical for those selfsame competitors to have then spent considerable sums in order to acquire a number of its customers in that region.

1860 The Court points out in that respect that during the meeting of 26 November 1988 Buzzi indicated to Lafarge that it had had two or three customers in the last 20 years in Côte d'Azur and that that did not elicit any obvious reaction or objection on the part of the latter. The

II - 960

CIMENTERIES CBR AND OTHERS V COMMISSION'

concerted action in relation to the south of France market did not therefore rule out Buzzi's keeping the 'two or three' isolated accounts which it had long maintained with a number of customers in that region, since those few commercial links did not appear to be such as to upset the Côte d'Azur market. The fact that the French producers should have subsequently decided to acquire part of Buzzi's customer base in that market is therefore not inconsistent with the existence of an unlawful concerted action between Lafarge and Buzzi at the end of 1988, as shown by the excerpt from the record of the meeting mentioned by the Commission in recital 20, paragraph 3, of the contested decision

1861 Seventhly, Buzzi states that, despite its alleged undertaking not t o become involved in the south of France market, its sales on that market have improved almost consistently, with the exception of those in 1988 (Annex 16 to its application). Supported on that point by Lafarge, it adds that the fall in its sales in France in 1988 can only be explained by the takeover, by certain French producers, of t w o of its main customers in that region, and not, as maintained by the Commission at recital 2 0 , paragraph 7, of the contested decision, by the existence of a concerted action with the French producers, and in particular with Lafarge.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/9S, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/9S TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1866 Lafarge states specifically that, after the meeting of 26 November 1988, Buzzi continued to supply its customers in the south of France.

1867 However, the Court points out that, during that meeting, Buzzi told Lafarge that it had had t w o or three customers in the last 2 0 years on the Côte d'Azur market. Lafarge expressed n o objection, in that respect, obviously considering that that situation was not such as to upset that market. In such a context, the evidence invoked by Lafarge does not prove that the collusion between Buzzi and it on 26 N o v e m b e r 1988 did n o t influence their conduct on the market.

1868 It follows from all the foregoing that the Commission was justified in concluding in Article 3(l)(a) of the contested decision that there was an anti-competitive concerted practice between Lafarge and Buzzi involving 'the sharing of the market of the south of France'. Such a concerted practice is manifestly contrary to Article 85(l)(c) of the Treaty, which expressly prohibits all agreements and concerted practices 'which share markets'.

D — Duration of the infringement

1873 However, the fact that Lafarge and Buzzi agreed during that meeting that war was pointless does not necessarily mean that the parties were at war until then on the south of France market. Such a statement could just as well indicate their intention not to engage in warfare. In any event, there was held to be a concerted practice between Lafarge and Buzzi only as from 26 November 1988. The Commission has therefore not claimed that concerted action between the two parties, based on agreements intended to avoid 'war' or 'conflicts', existed already before that date.

1874 Thirdly, Buzzi states that the Commission, without giving reasons, set 31 December 1988 as the date on which the concerted practice at issue was brought to an end, even though it acknowledged (contested decision, recital 48, paragraph 7) that it did not have any specific information in that regard.

1875 At recital 4 8 , paragraph 7, of the contested decision the Commission explains that '[i]n the absence of any other precise indications of when the infringement ended, [it] considers that it lasted at least until the end of 1 9 8 8 , since the last concerted action with Lafarge dates from 26 November 1988 and involved Buzzi's revealing to Lafarge its future conduct on the market'.

1876 O n the basis of that factor, and in the absence of evidence to the contrary adduced by the undertakings concerned, the Commission w a s right to consider that the unlawful concerted action between Lafarge and Buzzi lasted 'at least until the end of 1988'.

Concerted practice between Ciments Français and Buzzi found in Article 3(l)(b) of the contested decision

B — Whether there was an anti-competitive concerted practice between Ciments Français and Buzzi

1878 Ciments Français complains that the Commission committed an error of fact in its description, in recital 2 0 , paragraph 1, of the contested decision, of the location of plant on either side of the Franco-Italian border belonging t o the four undertakings mentioned in Article 3(1) of the contested decision, inasmuch as it placed its Ranville plant at Bouches-du-Rhône, whereas Ranville is in Normandy.

1879 However, that error — which the Commission acknowledges (defence in Case T-39/95, p. 30) — has n o consequences. As pointed out above (see paragraph 1877), the Commission, in its legal assessment in recital 4 8 , paragraph 4, of the contested decision, merely objects to the disclosure made by Ciments Français to Buzzi of its Beaucaire price list and the provision of the forecast average increase for the year.

1880 Buzzi, for its part, complains that the Commission infringed the requirements laid down in the case-law with regard to the burden of proof by basing its finding of an infringement on a single fax of 17 M a r c h 1988 by which Ciments Français h a d transmitted its price list t o it.

1884 The Court points out that the information provided by the Italian cement industry during the hearing of 2 March 1993 shows that French prices were, on average, always 2 0 % higher than Italian prices during the period 1981 to 1991 (contested decision, recital 9, paragraph 6, and the tables in annexes 9-3 and 9-4).

1885 In any event, Buzzi's criticisms, which amount to a challenge of the Commission's analysis in respect of the period prior to that under consideration in respect of the infringement at issue, cannot obscure the fact that on 17 March 1988 Ciments Français sent it, at Buzzi's request, its price list and forecast average increase for the year (contested decision, recital 2 0 , paragraph 4: documents 33.126/11982 to 11987).

1886 Secondly, Buzzi maintains that the Commission, by merely stating that there was a unilateral flow of information coming out of Ciments Français, has not proved that there was the element of reciprocity essential to a finding of a concerted practice.

1887 That argument must be rejected. As has been pointed out above (paragraph 1849), the condition of reciprocity, which is necessary for a finding of concerted practice, is met where it appears that one competitor discloses information relating to its conduct on the market at the request of another competitor. The very wording of the fax referred to in recital 2 0 , paragraph 4, of the contested decision makes it clear that the price list was transmitted by Ciments Français to Buzzi 'in reply to [the] telex of today' (document 33.126/11983), that is, as the Commission rightly observes (contested decision, recital 4 8 , paragraph 4), 'at Buzzi's request'. The element of reciprocity is thus established in the present case.

1889 For its part, Buzzi again criticises the Commission for not having carried out an economic analysis of the Franco-Italian border market, emphasising the various reasons which explain, in its view, that that market was not amenable to the cross-border transportation of cement (see paragraph 1853 above).

1890 T h a t argument cannot be accepted. As the Commission rightly pointed out, 'the ... fact is that Buzzi exports to France' (contested decision, recital 4 8 , paragraph 5). Buzzi stated during the administrative procedure that, 'despite a number of obstacles which it had to overcome (transport costs, customs, difference in the quality of Italian and French cement), and although it could have sold its products on closer and more profitable markets, it has been exporting worthwhile quantities ("interessanti quantità") of cement to the south of France since the end of the 1960s' (point 4.3 of Buzzi's reply to the SO; contested decision, recital 20, paragraph 7).

1891 Since there is n o doubt that Buzzi exported to the south of France market, the Commission w a s entitled to consider that Ciments Français, which owns a production plant on that market, at Beaucaire (contested decision, recital 2 0 , paragraph 1), and Buzzi were 'actual or, at the very least, potential competitors' (contested decision, recital 4 8 , paragraph 5).

1893 Such an argument must be rejected. T h e obligation of transparency required, in particular in relation to prices, of French producers by Order 86/1243 of 1 December 1986, cited above, applies only t o 'purchaser(s) of the product' (Article 33 of that Order), which was not Buzzi's position in this case. Moreover, it is clear from the fax of 17 March 1988 that the information sent by Ciments Français to Buzzi related not to the official price list, but t o '(its) ex-works prices for sacked and bulk cement', including those of the factory located in the Beaucaire region, Ciments Français' natural market in the south of France (contested decision, recital 2 0 , paragraph 4; documents 33.126/11983, 11985 and 11987). Although the prices in question had already been in force for more than a year and liable to be amended at any time, the fact remains that these were prices which were (still) in force at that time. Far from being of merely historical or statistical interest, the information which Ciments Français sent t o Buzzi was thus of 'current value' (contested decision, recital 4 8 , paragraph 5). It is true that Buzzi could have obtained those prices from Ciments Français' customers. Nevertheless, it requested them of Ciments Français, which sent them to it that same day.

1894 As regards the indication as to the price rise envisaged for the year, Buzzi cannot reasonably defend the view that that information could be easily calculated on the basis of a simple analysis of the economic indicators taken into account by the State, since State control of cement prices had been abolished in France since 1986 (contested decision, recital 16, paragraph 12). In actual fact, that information was commercially confidential and thus particularly sensitive.

1900 T h a t argument must be rejected. Recourse to the term 'forecast' in place of the term 'envisage' cannot be considered to reveal an intention on the part of the Commission to misrepresent the wording of the fax of 17 M a r c h 1988. Moreover, nowhere in the contested decision does the Commission present Ciment Français' forecast average price increase for the year as being the result of a firm and definitive decision.

1901 Sixthly, Buzzi claims that the disclosure by Ciments Français of its price list could not have served the anti-competitive purpose claimed for it by the Commission, namely 'so that Buzzi could align its cement prices in France on Ciments Français ... prices' (contested decision, recital 2 0 , paragraph 6). The prices actually charged by the French cement producer on the south of France market did not in fact correspond to those appearing in that price list. Buzzi refers, in that respect, to the French price list for 1983 to 1988, set out in annexes 18 to 23 of its application.

1902 T h a t argument must be rejected.

1903 Examination of the information contained in the fax sent by Ciments Français on 17 M a r c h 1988 and the indications of the French price for 1987 provided by Buzzi in annex 2 2 to its application leads to the conclusion that the French price specified by Buzzi for that year was of FRF 365 per tonne, that is to say exactly the same price which Ciments Français had communicated to it on 17 M a r c h 1988 in respect of its Beaucaire factory.

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1905 Be that as it may, even if the prices communicated by Ciments Français to Buzzi did not correspond to the prices actually charged by the French producer on the market — a price which depends on a number of additional parameters which vary case by case — the price specifications set out in the fax in question were such as to enable Buzzi to 'align its cement prices in France on Ciments Français ... prices' (contested decision, recital 20, paragraph 6) by raising those export prices to a level likely to dissuade actual or potential Ciments Français customers from importing its products into the south of France and/or by passing on to its own customers in that region the changes in 'local' prices, in this case those of Ciments Français, in order not to upset the natural market of that producer. Knowledge of the price list applied by a competitor at a given time, as well as the price increase envisaged by it for the year, enables an operator —• particularly where, as in the present case, that information includes a precise indication of the VAT rate in force (see documents 33.126/11984 to 11987) — t o adjust its own prices accordingly, without it being necessary to have available the exact actual prices — which vary according to the customer ·— charged by that competitor on the market.

1906 Seventhly, Buzzi considers that, if, as the Commission claims, 'the lower prices [were] justified by the fact that the Portland cements sold by Buzzi in France (grades 325 and 425) have lower resistance grades than the corresponding cements manufactured and sold by the French producers (grades 350 and 450)' (contested decision, recital 20, paragraph 7), Buzzi cannot be criticised for having acted on the basis of the price list which had t e e n sent by Ciments Français on 17 March 1988, since that list concerned products of a type different from those which it marketed.

1909 Eighthly, Buzzi maintains that, both before and after communication of the price list by Ciments Français, it constantly charged prices in that region which were significantly lower than those of the French producers, in particular of Ciments Français. It refers in that respect to annexes 18 to 23 to its application, in which it compares French and Italian prices during the period 1983 to 1988. In reply to a written question put by the Court of First Instance on 27 May 1998, it also provided, on 25 June 1998, copies of the invoices relating to sales in the south of France, to which it referred in its application (p. 41, paragraph 11) in order to support its arguments on that point. Those invoices confirm that, in fact, Buzzi's prices for certain customers in the south of France between February 1987 and December 1988 were constantly lower (FRF 290 to 300 per tonne) than those specified by Ciments Français for its Beaucaire factory (FRF 365 per tonne) in its fax of 17 March 1988 (contested decision, recital 20, paragraph 4; documents 33.126/11982 to 11987). As indicated above (paragraph 1907), Buzzi dismisses the explanation put forward by the Commission in recital 20, paragraph 7, of the contested decision to justify its lower prices for sales in France than those of French producers.

1910 It should be pointed out in that regard that although, as is clear from the very terms of Article 85(1) of the Treaty, a concerted practice implies, besides undertakings' concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two, it must be held that, subject to proof to the contrary, which the parties concerned must adduce, undertakings participating in the concerted action and which remain active on the market take into account the information exchanged with their competitors in determining their conduct on that market (Commission v Anic, cited in paragraph 270 above, paragraphs 118 and 121, and Hüls v Commission, cited in paragraph 155 above, paragraphs 161 and 162).

1913 In conclusion, Buzzi's submissions set out in paragraph 1909 above do not prove that the information which it had obtained, at its request, from Ciments Français had no impact on its conduct on the market.

1914 Ninthly, Buzzi refers to the takeover by the French producers of a number of its French customers.

1915 However, such a circumstance does not hide the unlawful concerted action between Ciments Français and it, when Ciments Français sent to Buzzi, at Buzzi's request, its price list and details of the increase envisaged for 1988.

1916 It follows from all the foregoing that the Commission was justified in concluding that there was a concerted practice as stated in Article 3(1)(b) of the contested decision.

C — Duration of the infringement

1917 The Commission considers that the concerted practice which it finds in Article 3(1)(b) of the contested decision lasted from 17 M a r c h to 31 December 1988.

1920 Second, Ciments Français observes that the exchange of information of which it is accused consisted of n o more than the sending of a single fax to Buzzi on 17 M a r c h 1988 (contested decision, recital 20, paragraph 4; documents 33.126/11982 to 11987). Like Buzzi, it challenges the Commission's right to base itself, at recital 4 8 , paragraph 7, of the contested decision, on the concerted action between Lafarge and Buzzi in order to extend until 31 December 1988 the duration of the infringement of which it is accused, where it has not been proved that the various contacts between Buzzi and the French producers had arisen from a single infringement. Buzzi also complains that the Commission determined the duration of its unlawful concerted action with Ciments Français without providing a specific reason. It stresses that the price list which had been sent to it on 17 M a r c h 1988 by Ciments Français was n o longer in force on 1 September 1988, that is to say, four months before the date fixed in the contested decision for the end of the infringement.

1921 It must however be observed that, by informing Buzzi on 17 M a r c h 1988, at the latter's request, of its prices in force, and of the forecast price increase 'for the current year', Ciments Français offered it a reasonable degree of certainty as to its commercial conduct, in terms of prices, for the whole of 1988. The unlawful concerted action was thus likely to be of benefit to the participants until the end of 1988. The Commission was therefore entitled to find that the infringement had lasted from 17 M a r c h to 31 December 1988.

1923 The Commission considers that the reason why 'Vicat sent its price list was so that Buzzi could align its cement prices in France on ... Vicat prices' and that 'tne fact that Buzzi informed Vicat both of its refusal to fill cement orders from the south of France and that it intended to continue doing so (constituted) sharing the south of France market' (contested decision, recital 20, paragraph 6). At recital 4 8 , paragraph 6, of the contested decision, the Commission finds in the following terms that there was a concerted practice between Vicat and Buzzi, contrary to Article 85( 1 ) of the Treaty: '... on the one hand, Buzzi reassured Vicat of its desire not to disrupt the market in the south of France, and, on the other, through the exchanges of price lists and the notification of price increases, Vicat and Buzzi endeavoured to establish a reasonable degree of certainty that any exports which continued to take place would be carried out on the basis of a pricing policy comparable to that of Vicat. By these means, they eliminated a large part of the normal risk inherent in any a u t o n o m o u s change in market behaviour' (contested decision, recital 4 8 , paragraph 6, last subparagraph).

B — Existence of an anti-competitive concerted practice between Vicat and Buzzi

1926 In its legal assessment of the facts set out in recital 2 0 , paragraph 5, of the contested decision, which leads it to conclude in Article 3(1)(c) that there was a concerted practice between Vicat and Buzzi 'involving the exchange of price information with a view to the restriction of their autonomy of conduct as regards cement supplies in southern France', the Commission gives its reasons for finding such an infringement in the following terms: 'The exchange of price lists which t o o k place on 11-16 M a y 1983 and April and July 1986, and Buzzi's communication to Vicat on 2 3 April 1986 of its intention not to accept orders from Nice and Toulon constitute a concerted practice, covered by Article 85(1). Even if the price lists can be obtained through customers, the procedure is more complicated and more time-consuming. Furthermore, the exchanges related not only to the price lists, but also, on one occasion, to the forecasts of price increases. Through this concerted practice, on the one hand Buzzi reassured Vicat of its desire n o t to disrupt the market in the south of France, and, on the other, through the exchanges of price lists and the notification of price increases, Vicat and Buzzi endeavoured to establish a reasonable degree of certainty that any exports which continued to take place would be carried out on the basis of a pricing policy comparable to that of Vicat. By these means, they eliminated a large part of the normal risk inherent in any autonomous change in market behaviour' (contested decision, recital 4 8 , paragraph 6).

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by French producers, as shown by a comparison between its own Cement 425 prices and those charged by Vicat for CPJ 45 cement (Annex 17 to its application).

1930 It should be recalled once more that the figures produced by the Italian cement industry at the hearing of 2 M a r c h 1993 show, for their part, that the French prices were, on average, always 2 0 % higher than the Italian prices during the period 1981 to 1991 (contested decision, recital 9, paragraph 6, and the tables in Annexes 9-3 and 9-4). In any event, on 23 April 1986 Buzzi told Vicat that it had received requests to supply cement not only from Nice but also Toulon — which serves to illustrate the attractiveness of the Italian prices and thus to bolster the Commission's argument — but that it had replied in the negative to all of them and intended to continue so doing (contested decision, recital 20, paragraph 5; document 33.126/6144).

1931 Secondly, Buzzi submits that there is nothing to prove that the document containing Vicat's price list effective as from 1 July 1986 (contested decision, recital 20, paragraph 5; document 33.126/11971) was sent to it by Vicat.

1932 It must be accepted that although the document in question was found on Buzzi's premises, with handwritten notes in Italian at the top of the page, there is no proof that it was sent by Vicat to Buzzi. Buzzi could have obtained it from one of Vicat's customers, to which no objection can be made. In those circumstances, the Commission has not shown that the abovementioned document was part of exchanges between Vicat and Buzzi. It follows that it cannot be taken into account as evidence of the concerted practice at issue.

1936 The Court finds that the price lists exchanged between Vicat and Buzzi, referred to in recital 20, paragraph 5, of the contested decision, mostly concerned prices in force and therefore up to date. Although it was possible for the parties to obtain those price lists through customers, the fact remains that 'the procedure is more complicated and more time-consuming' (contested decision, recital 4 8 , paragraph 6), and the parties preferred to go directly to each other in order to obtain them. Moreover, Vicat sent Buzzi on 11 M a y 1983 a change to forthcoming prices by notifying it of the ex-works prices list for the factory at La Grave de Peille with effect from 1 June 1983 (contested decision, recital 2 0 , paragraph 5; document 33.126/11973). O n 2 3 April 1986 Buzzi even notified Vicat of an anticipated/hoped for 3 % increase in September and in turn, asked Vicat t o indicate ex-works prices for bulk and sacked goods and the percentage increase, of which it had learnt, and to tell it 'if other price increases are planned for this year' (contested decision, recital 20, paragraph 5; document 33.126/6144). Contacts between Vicat and Buzzi thus concerned sensitive and at times even confidential commercial information.

1937 Furthermore, in M a y 1983 and April 1986, Vicat and Buzzi sent each other their respective ex- works prices for bulk and sacked cement and, on one occasion, a forecast price increase. O n 23 April 1986, Buzzi further informed Vicat that it had refused requests to supply cement from Nice and Toulon and that it intended to continue so doing. By doing so, the two applicants revealed their current and future conduct on the market, thus eliminating or, at the very least, substantially reducing the uncertainty as to their respective policies on the said market. In the light of the case-law cited at paragraph 1852 above, the Commission was therefore right to consider that, by that exchange of information, they had 'eliminated a large part of the normal risk inherent in any autonomous change in market behaviour' (contested decision, recital 4 8 , paragraph 6).

1940 Fifthly, Buzzi claims that the Commission contradicts itself when it affirms, first, that the exchanges of price lists and notification on price increases enabled it to develop a commercial policy comparable t o that of Vicat on the south of France market, and secondly, that those products did not belong t o the same class of resistance as those of the French producers.

1941 It should be borne in mind that Buzzi contests specifically, in its application, the explanation put forward by the Commission at recital 2 0 , paragraph 7, of the contested decision for its prices being lower than those of the French producers, by emphasising that its products were of equivalent quality t o those of French cement (see paragraph 1907 above).

1942 In any event, whatever the degree of comparability, in terms of quality and resistance, between the products marketed by Buzzi and the French cement producers, it has been established that Buzzi asked Vicat on various occasions to send it its price list for its factory at La Grave de Peille, together with some indication of any price increases envisaged. In the absence of an alternative persuasive explanation by Buzzi as to the reason for such price list notification, the Commission was justified in considering that 'through the exchanges of price lists and the notification of price increases, Vicat and Buzzi [had] endeavoured to establish a reasonable degree of certainty that any exports which continued to take place would be carried out on the basis of a pricing policy comparable to that of Vicat' (contested decision, recital 4 8 , paragraph 6).

1946 It must however be found that the various documents relating to the exchanges of price lists between Vicat and Buzzi (contested decision, recital 2 0 , paragraph 5; documents 33.126/11974, 11973, 11975 to 1 1 9 7 7 and 6144) do not contain the slightest evidence to confirm that affirmation. Moreover, the justification put forward by Vicat does not explain why Vicat itself requested Buzzi's ex-works prices for its Robilante factory on several occasions, (contested decision, recital 20, paragraph 5; documents 33.126/11975 to 11977 and 6144).

1947 Seventhly, Vicat submits that the statement of intention which Buzzi sent to it in the telex of 23 April 1986 (contested decision, recital 2 0 , paragraph 5; document 33.126/6144) was at most, at least in so far as concerned orders from Toulon, technically impossible, given the distance between that region and the Robilante factory. For its part, Buzzi criticises the Commission once again for its failure to analyse the market in question. It informed Vicat of its intention not to accept the orders it received from Nice and from Toulon because of the numerous objective obstacles to export activity in the Franco-Italian border region (see paragraph 1853 above).

1948 It must however be pointed out that the telex of 23 April 1986 does not contain any evidence of such a nature as to support to the explanations which the applicants n o w put forward. Moreover, the applicants cannot argue that Buzzi's refusal to accept orders from the south of France may be explained by the difficulties and inconveniences relating to Franco-Italian cross- border trade, when Buzzi itself stated, during the administrative procedure, that those various obstacles had not dissuaded it from exporting 'worthwhile quantities' of cement to the south of France, moreover 'at prices lower than those charged by French producers' (paragraph 4.3 of Buzzi's reply to the SO; contested decision, recital 2 0 , paragraph 7).

1950 In that regard, the parties agree that, as is shown by the passage from the record of the meeting of the 26 November 1988 between Lafarge and Buzzi and highlighted by Vicat, Buzzi maintained on the Côte d'Azur market several business contacts based on the personal links established by the Buzzi brothers. N o n e the less, in its telex of 2 3 April 1986 to Vicat, Buzzi actually told the latter that it had given a negative reply to requests for the supply of cement which it had received not only from Nice but also from Toulon and that it intended t o continue so doing. T h e indication given by Vicat means therefore at most that the French producers, among them Vicat, saw no objection to Buzzi keeping its t w o or three customers of 20 years standing on the Côte d'Azur market (record of the meeting of 26 November 1988 between Lafarge and Buzzi), provided that the Italian undertaking abstained from increasing its exports on that market, in order not to disrupt the natural market of the French producers and in particular of Vicat.

1951 In conclusion, the Commission was right to see in Buzzi's statement of intention of 2 3 April 1996 the expression of its desire 'not to disrupt the market in the south of France' (contested decision, recital 48, paragraph 6). It was also entitled to find (ibidem) that through their exchanges of price information Vicat and Buzzi endeavoured to establish a reasonable degree of certainty that any exports which continued to take place would be carried out on the basis of a pricing policy comparable to that of Vicat. The Commission was therefore entitled to conclude that those bilateral contacts, which sought to bring about competitive conditions that did not correspond to the normal market conditions, were unlawful (see, to that effect, the case-law cited in paragraph 1852 above).

1954 As has been stated above (see paragraph 1911), Buzzi has never denied having had, during the period under consideration in the contested decision, a number of customers in the south of France, more specifically in the Côte d'Azur market. It did not intend however waging ' w a r ' against the French producers (see the record of the meeting of 2 6 November 1988 between Lafarge and Buzzi; contested decision, recital 20, paragraph 3; document 33.126/6857 bis). It was thus perfectly able to follow an independent commercial policy, both in terms of prices and of volume of sales, with regard to those customers, which was the fruit of personal contacts of the Buzzi brothers, while restricting vis-à-vis all other customers its autonomy of behaviour on the basis of information provided to it by Vicat in order not to disrupt the south of France market and in particular Vicat's natural market in that region.

1958 The Court points out that the Commission does not claim, in the contested decision, that Vicat and Buzzi colluded on the systematic refusal by Buzzi to deliver in the south of France or, in other words, on total non-delivery of cement by Buzzi on that market. All it alleged against Vicat and Buzzi was that they participated in a concerted practice which involved 'the exchange of price information with a view to the restriction of their autonomy of conduct as regards cement supplies in southern France' (Article 3(1)(c) of the contested decision), after it had found that 'through the exchanges of price lists and the notification of price increases, Vicat and Buzzi endeavoured t o establish a reasonable degree of certainty that any exports which continued to take place' — without prejudice to the desire, expressed by Buzzi to Vicat, not to disrupt the

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market in the south of France by accepting any order which it might receive not only from Nice but also from Toulon — 'would be carried out on the basis of a pricing policy comparable to that of Vicat' (contested decision, recital 48, paragraph 6). It follows that Vicat's argument alleging that the Commission contradicts itself on this point must be rejected.

1959 It follows from all the foregoing that the Commission was justified in concluding that there was concerted practice as stated in Article 3(1 )(c) of the contested decision.

C — The duration of the infringement

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/9J, T-88/95, T-103/95 AND T-104/95

1963 Secondly, Vicat and Buzzi submit that the Commission, by merely producing evidence of exchanges of price lists in May 1983, April 1986 and July 1986, has failed to fulfil the obligation required by the case-law (see in particular Dunlop Slazenger v Commission, cited above at paragraph 270, paragraph 79) to adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that the infringement continued uninterruptedly between 11 May 1983 and 31 December 1988. Vicat stresses in particular that the Commission has not shown that Buzzi and itself continued to exchange their price lists after 1986.

1964 T h e applicants go on t o state that the exchanges of prices lists are time-barred by virtue of Article 1(1)(b) of Regulation (EEC) N o 2988/74 of the Council of 2 6 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating t o transport and competition (OJ 1974 L 3 1 9 , p . 1), because the Commission's investigations began in April 1989, that is t o say more than five years after the events. Buzzi adds that the 1983 exchanges at issue are also time-barred by virtue of Article 2(3) of that regulation, because the Commission, in adopting its decision on 30 November 1 9 9 4 , w a s penalising the conduct more than 10 years after it occurred. T h e applicants conclude that proceedings can be brought in respect of the infringement alleged against them at most for the period between April and July 1 9 8 6 .

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conduct on the market' (contested decision, recital 48, paragraph 7, third subparagraph). It concludes: 'December 1988 must be deemed to be the end or the infringement as regards the three French producers too. Even though it was provided individually to the three French producers, Buzzi's information ultimately benefited all three' (contested decision, recital 48, paragraph 7, fourth subparagraph).

1969 However, the fact that, at the meeting of 26 November 1988 with Lafarge, Buzzi told Lafarge that it had no desire to upset the Côte d'Azur market, and that war was pointless, does not demonstrate that 'exchanges of information on prices', which is the specific subject of the infringement found in Article 3(1)(c) of the contested decision, took place between Vicat and Buzzi until 31 December 1988.

1970 It follows that Article 3(1)(c) of the contested decision must be annulled in so far as it finds that Vicat and Buzzi participated, after 23 April 1986, in a concerted practice involving exchanges of information on prices in order to restrict their autonomy of conduct so far as concerns deliveries of cement in the south of France.

Access to the file

1974 In its observations of 10 February 1997, it argues, first, that the documents consulted confirm the presence of economic and historic obstacles to the existence of a Franco-Italian concerted practice. Documents 33.126/12485 to 12492, 12493 to 12509, 12463 to 12484, 12452 to 12462, 2 9 2 1 to 2 9 2 8 , 2 9 2 9 to 2 9 3 1 , 3158 to 3160, 3163 to 3 1 6 6 , 3150 to 3154, 3 0 1 7 , 3 0 1 8 , 3019 to 3032, 3053 to 3 0 5 9 , 3099 to 3 1 0 8 , 3110 to 3126, 12083 to 12096, 1 2 0 8 1 , 12082, 12136 to 12138, 3 3 6 5 , 12139, 12140, 12142 and 12143 show that from the early 1980s the Italian market was closed off by a series of agreements entered into by the three principal cement producers; these were agreements in relation to which Buzzi had always been hostile. All those documents would thus have enabled Vicat to prove that Buzzi was unlikely to participate in restrictions and that a concerted practice with Buzzi would have been totally ineffective, in view of its indiscipline and the small part which it played on the Italian market.

1975 Vicat relies moreover on documents 33.126/11990 and 1 1 9 9 1 , which relate to the price increase for Italian cement authorised in September 1989 by the Interministerial Price Committee (Comitato interministeriale dei prezzi — CIP) due to be announced in the Italian press by AITEC. Those documents would show, in Vicat's view, that the pricing information which Buzzi had sent to it occasionally was not confidential at all and that its commercial value was limited.

1979 Nor are documents 33.126/11990 and 11991 likely to reveal the existence of a breach of Vicaťs rights of defence during the administrative procedure. Any comments which Vicat might have been able to make on the basis of those documents would not have prevented the Commission from finding, objectively and irrefutably, in the light of the telexes referred to in point 10 of the SO and at recital 20, paragraph 5, of the contested decision (documents 33.126/11974, 11973, 11975 to 11977 and 6144), that the exchanges between Vicat and Buzzi during the period under consideration involved their own ex-works prices applicable at their factories at La Grave de Peille (Vicat) and Robilante (Buzzi), as well as, 'on one occasion, ... forecasts of [those] price increases' (contested decision, recital 48, paragraph 6), information whose sensitive or even confidential nature is undeniable, rather than price lists and price increases approved by the State authorities. Those documents would therefore not have shown that the contacts between Vicat and Buzzi set out in Article 3(1)(c) of the contested decision were not unlawful.

1980 Finally, the quantity, nature and content of the documents used by the Commission in order t o prove one particular infringement cannot, as such, affect the evidential value of — fewer — documents relied upon in support of a finding of another infringement. Accordingly, documents 33.322/1406 t o 1408 and 1410 to 1412, relating to the Hispano-Portuguese agreement mentioned in Article 3(2) of the contested decision, cannot undermine the evidential value of the documents relied upon by the Commission, in the SO and in the contested decision, in concluding that there was a concerted practice between Vicat and Buzzi as stated in Article 3(1)(c) of the contested decision.

1983 Secondly, Vicat states that documents 33.126/4395 to 4 3 9 9 and 4 4 0 6 to 4 4 1 4 , apparently of 9 M a r c h 1989, relating to the cooperation agreements between Ciments Français and Umcem, could have been of use in its defence during the administrative procedure, since they would have enabled it to establish a contrario that the Commission's file did not contain any proof of an agreement or a draft agreement of that type between Buzzi and itself.

1984 However, it is not possible to argue a contrario from the existence of proof of an agreement between t w o parties that there is n o proof of concerted action between t w o other parties. Moreover, in the present case, the Commission did in fact refer, in the SO and the contested decision, to documents proving that there was unlawful concerted action between Vicat and Buzzi involving 'the exchange of price information with a view to the restriction of their autonomy of conduct as regards cement supplies in southern France' (Article 3(1 )(c) of the contested decision). Any comments which Vicat might have been able to make could not therefore prevent a finding of such concerted action.

1985 Thirdly, Vicat invokes documents 33.126/4421 and 4 4 2 2 , which contain a brief description of the Italian cement industry in 1986, in order to emphasise the lack of impact on the c o m m o n market of the alleged concerted practice, given the very modest position held by Buzzi on the Italian market ( 3 % share of the market).

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been able to make during the administrative procedure in order to illustrate the modest position held by Buzzi on the Italian market could not therefore have altered the outcome of the administrative procedure.

1987 Fourth, Vicat puts forward an internal Lafarge document, undated but probably from 1987, entitled 'Implications of the risks of overland importation over the French borders' (documents 33.126/4869 to 4873). That document, relating specifically to Italian exports to the Nice-Côte d'Azur area, allegedly confirms the existence of considerable difficulties encountered by Buzzi when exporting cement to France. In other words, that document demonstrates that the low level of trade in cement between France and Italy may be explained solely by purely objective considerations to do with the various obstacles to exportation prevailing in the Franco-Italian border area, rather than, as the Commission claims, by a local concerted practice between Buzzi and the French producers, in particular Vicat. The document in question thus states, with regard to the 'Italy/Nice-Côte d'Azur' market: 'The advantage in cost terms of the nearest Italian factory (Buzzi) is not favourable ... despite a variable cost of FRF 90 per tonne instead of FRF 100 per tonne charged by French factories; as regards transport costs, the favoured approach is that of the widening of the pass at Tende (a project under serious consideration) with direct deliveries; a commercially justified warehouse at Ventimiglia would only increase delivery costs. The position of French plants on the border with Italy places them, in some circumstances, in a good position to carry out reprisals. Finally, the Italian factory does not have for the time being the requisite overcapacity — investment in grinding plant is required. The whole of the above would indicate that there is no significant threat of overland imports.'

doing (contested decision, recital 20, paragraph 5; document 33.126/6144), had 'reassured Vicat of its desire not to disrupt the market in the south of France' (contested decision, recital 48, paragraph 6).

1991 It appears from the foregoing considerations that, so far as concerns the infringement mentioned in Article 3(1 )(c) of the contested decision, none of the arguments put forward by Vicat in its observations of 10 February 1 9 9 7 and 8 January 1998 is such as t o show that its rights of defence were infringed in the course of the administrative procedure.

B — Case T-39/95 Ciments Français v Commission

1992 Ciments Français States that, if it h a d been aware of a number of documents during the administrative procedure, it would have been able t o make full use of them in order t o support its defence against the complaint in Article 3(l)(b) of the contested decision that it h a d participated in an anti-competitive concerted practice with Buzzi.

1995 In any event, any comments which Ciments Français might have been able to make in order to demonstrate the lack of any link between Buzzi and Cembureau and the absence of participation by Buzzi in the action against Greek exports undertaken by the producers

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belonging to its market and, finally, the total absence of any reference in the Italian chapters of the SO to documents concerning contacts between the Italian and French producers, in particular between Ciments Français and Buzzi, would not have made it possible to disregard or to shed a different light on the contents of the fax of 17 March 1988 wherebv Ciments Français communicated to Buzzi, at the latter's request, its price list and the increases'which it envisaged for the year (contested decision, recital 20, paragraph 4; documents 33.126/11982 to 11987) and on which the Commission relied in the SO (Chapter 2, point 10, and Chapter 10, point 61(b)) and in the contested decision (recital 20, paragraphs 4, 6 and 7 and recital 48,' paragraphs 4, 5 and 7) in concluding that the concerted practice existed.

1997 As has been pointed out at paragraph 1988 above, the Lafarge document shows that, although the French undertaking did not perceive, at that time, any 'significant threat of overland imports', in particular from Italy and specifically from Buzzi, the 'risk' linked with such imports was none the less latent. Furthermore, for the reason set out at paragraph 1989 above, any comments which Ciments Français might have made on that document in the course of the administrative procedure would not have prevented the Commission from finding that Buzzi exported to France (contested decision, recital 48, paragraph 5, second subparagraph). Finally, any comments which Ciments Français might have made would not have enabled the Commission to alter the conclusions it made in the second and fourth subparagraphs of recital 48, paragraph 5, of the contested decision: '... Ciments Français and Buzzi are actual or, at the very least, potential competitors and ... any communication to a competitor of the conduct which it is planned to adopt on the market, such as to enable an influence to be exerted on the competitive conduct of such competitor, constitutes an infringement of Article 85(1).'

1998 It is clear from the foregoing considerations that, so far as concerns the infringement mentioned in Article 3(1 )(b) of the contested decision, none of the arguments put forward by Ciments Français in its observations of 10 February and of 21 November 1997 are such as to show that its rights of defence were infringed in the course of the administrative procedure.

2002 Buzzi next refers to a first series of documents which, in its view, could have been useful during the administrative procedure in clarifying the market conditions and proving the total absence of any competitive relationship between the French producers and itself.

2003 First of all, it refers, in its document of 9 January 1997, to an internal Lafarge m e m o r a n d u m of 2 1 April 1989 (documents 33.126/4709 and 4710), from which, it claims, that it is clear that it w a s n o t perceived by the French undertaking as a competitor on the market in the south-east of France. In its observations of 28 November 1997 it relies on another internal Lafarge m e m o r a n d u m of 28 February 1988 concerning 'Investigations by the Commission in Brussels (documents 33.126/16838 to 16840). T h a t m e m o r a n d u m makes clear that Buzzi's factory in Robilante was not deemed a likely source of competition in the south-east of France on which Lafarge, Ciments Français and Vicat faced each other. Buzzi further refers i n its observations of 28 N o v e m b e r 1 9 9 7 t o an internal Vicat m e m o r a n d u m of 18 July 1988 (documents 33.126/6245 to 6247), which Buzzi claims confirms that it w a s not perceived by Vicat as a competitor on the south of France market.

2004 It should first of all be pointed out that the three internal m e m o r a n d a in question make no reference to Buzzi. They concern exclusively competition between the three French producers Lafarge, Ciments Français and Vicat on the south of France market. The fact that those

2007 Secondly, Buzzi refers in its document of 28 November 1997 to a study on the market in the south-east of France, carried out by the commercial department of Lafarge on 10 December 1987 (documents 33.126/14549 to 14604). It claims that that document shows that the market study was carried out by Lafarge using only the undertaking's internal database. Buzzi considers that if the other French producers operating in the south-east of France, as well as itself, had provided Lafarge with enough data to enable it to know and assess the market in question, Lafarge would not have needed to resort to that internal study. It further claims that it also makes it clear that, since 1984, Lafarge had abandoned an important project, specifically on the basis of its knowledge of the market in question. Buzzi finds it remarkable that the a b a n d o n m e n t of that project was not compensated by new initiatives, such as an exchange of information with the competition. O n the contrary, Lafarge's knowledge of the market became significantly worse after 1984. Those various aspects thus contradict the Commission's argument that Buzzi had entered into an agreement with the three French producers Lafarge, Ciments Français and Vicat to share the market of the south of France on the basis of reciprocal exchanges of information.

2008 The Court points out first of all that the contested decision does not allege the existence of a single agreement or concerted practice between, on the one hand, the French producers Lafarge, Ciments Français and Vicat and, on the other, the Italian producer Buzzi. The Commission accuses Buzzi of three different concerted practices, corresponding to a like number of bilateral

2011 Thirdly, Buzzi draws attention in its document of 9 January 1997 t o the fact that, in the statistics d r a w n up by SFIC (documents 33.126/14809 t o 14824) the flow of imports of cement from Benelux, Germany and Switzerland had always been specifically analysed, whereas the flows from the other countries, including Italy, were mentioned under the residual heading O t h e r s ' . Those documents, in Buzzi's view, thus showed that the flow from Italy w a s very small. It is further alleged that it is clear from those documents, in the light of an SFIC internal m e m o r a n d u m d r a w n u p for its Bureau of 5 January 1988 (documents 33.126/14806 and 14807), that the Italian imports into France were not considered t o be 'normal flows of imports coming from ... European neighbours', undertaken in markets governed by economic principles. Only imports from the Benelux, Germany and Switzerland were regarded as such and were, for that reason, subject to strict control. Buzzi adds that it is precisely the cement producers of countries subject t o close surveillance by SFIC which h a d 'structural links' likely t o enable them t o exchange information (SO, Chapter 16, point 82, p . 211). It also compares other SFIC statistics (documents 33.126/14956 to 14976) with the abovementioned statistics (documents 33.126/14809 t o 14824), pointing out that that comparison confirms that Italian importations into France were of a completely different type t o those coming from Germany, the Benelux and Switzerland. It further observes that, according t o an SFIC document of 10 November 1 9 8 7 (document 33.126/14894) and a FIC m e m o r a n d u m of 9 M a r c h 1989 (documents 33.126/14898 and 14899), the members of Cembureau were in the habit of keeping

2015 In any event, any comments which Buzzi might have made in the course of the administrative procedure on the basis of the various documents on which it relies and, in particular, in the light of the comparison between various SFIC statistics (documents 33.126/14956 to 14976 and 14809 to 14824), in order to prove that Italian imports into France were not of the same kind as the flows from Germany, the Benelux and Switzerland, would not have made it possible to disregard the statements it made during the administrative procedure to the effect that it had exported 'worthwhile quantities' to the south of France market (contested decision, recital 20, paragraph 7) and, thus, have cast doubt on the finding that Buzzi and the French producers were, on that market, actual or, at the very least, potential competitors (contested decision, recital 4 8 , paragraph 5). In short, such comments would not therefore have made it possible to disregard the content of documents on which the Commission relied in the SO and in the contested decision in concluding that the three concerted practices of which Buzzi is accused existed.

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2018 Fourthly, Buzzi adduces in its document of 28 November 1997 several documents which purportedly show the significant impact of transport conditions and costs on the cement market. It refers to a Lafarge document entitled 'Commercial Policy' (document 33.126/4982), which states that there 'does not exist a uniform domestic cement market but rather specific regional markets' on account of, in particular, the 'the impact of transport costs'. The preponderant effect of transport costs on the assessment of profitability of exports is moreover confirmed by an SNFCC document of 2 December 1986 (document 33.126/6048 to 6050).

2019 It should be recalled in that respect that in the course of the administrative procedure Buzzi emphasised the impact of transport costs on exports to the south of France (point 4.3 of Buzzi's reply to the SO), while adding, however, that 'despite a number of obstacles which it had to overcome (transport costs ... ), and although it could have sold its products on closer and more profitable markets, it [had] been exporting worthwhile quantities ("interessanti quantità") of cement to the south of France since the end of the 1960s' (contested decision, recital 2 0 , paragraph 7). Any additional comments which Buzzi might have made during the adminis- trative procedure on the basis of the abovementioned documents in order to emphasise the influence of transport conditions and costs on export policy would not have altered the outcome of the administrative procedure in that respect.

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2023 Nevertheless, as has been pointed out on several occasions, Buzzi itself acknowledged during the administrative procedure that the transport costs, just as the other obstacles and difficulties involved in trade in cement between Italy and France, were not prohibitive to the extent of dissuading it from all export activity in the southern region of France (contested decision, recital 2 0 , paragraph 7). Any comments which Buzzi might have been able to make in the course of the administrative procedure in respect of the internal Lafarge m e m o r a n d u m (documents 33.126/4869 to 4909) in order to prove that its imports were not perceived by the latter as a threat would not therefore have prevented the Commission from finding objectively that Buzzi exported to the south of France at the time of the conduct complained of in the contested decision, and, thus, that it was an actual or, at the very least, potential competitor of the French producers in that region. In short, such comments would not therefore have made it possible to disregard the content of the record of the meeting of 26 November 1988 between Lafarge and Buzzi, on which the Commission relied in the SO and in the contested decision in order to find in Article 3(1 )(a) of the contested decision that there was unlawful concerted action between the t w o undertakings involving the sharing of the market in southern France.

2024 Buzzi next refers to a second series of documents which it claims shows the existence of a practice between the French producers in which it did not participate. In its document of 9 January 1997, it refers to internal Vicat memoranda of 18 and 30 September and of 2 and 22 October 1987 (documents 33.126/5824 to 5830), as well as to a letter of 28 February 1983 sent by Vicat to Ciments Français (documents 33.126/5844 to 5845). Examination of those

2027 Finally, Buzzi puts forward a third series of documents, relating to the prices it charged to its French customers during the period taken into account in the contested decision.

2028 In its document of 9 January 1997, it first of all states that the prices it charged French customers in 1986 for 4 2 5 cement ranged between FRF 240 and 290 per tonne, whereas it a p p e a r s from a letter from SFIC to C e m b u r e a u of 2 7 N o v e m b e r 1 9 8 6 ( d o c u m e n t 33.126/14938) that the price in France for CPJ 4 5 cement, a product in competition with its own, was FRF 3 5 7 per tonne. Moreover, other documents discovered at the SNFCC (documents 33.126/15040 to 15051) allegedly confirm that the prices applied by the French producers in respect of different types of cement at different times between 1987 and 1989 were vastly greater than those which it charged its French customers during the same period.

2031 It must nevertheless be pointed out that during the administrative procedure Buzzi stated, in reliance on a number of documents (see point 4.4(a) and annexes 12 to 14 of Buzzi's reply to the SO), that 'the prices it charged were lower than the prices communicated to it by the French producers' in order to show that it 'had embarked on the difficult task of exporting ... completely independently, in accordance with the actions of an entrepreneur seeking new markets' (contested decision, recital 2 0 , paragraph 7). However, the Commission expressed a view on that line of reasoning in the last subparagraph of recital 20, paragraph 7, of the contested decision by replying that in its view 'the lower prices were justified by the fact that the Portland cements sold by Buzzi in France (grades 3 2 5 and 425) have lower resistance grades than the corresponding cements manufactured and sold by the French producers (grades 350 and 450)'. Any additional comments which Buzzi might have made during the administrative procedure on the basis of the documents referred to in paragraphs 2028 t o 2 0 3 0 above to show that its prices on the south of France market were significantly lower than those of the French producers were therefore not likely to have altered the outcome of the administrative procedure in that respect.

2032 It must further be pointed out that the document entitled 'France Price Development for Cement' (document 33.126/15174) was accessible to Buzzi during the administrative procedure (see paragraph 2 5 0 above), as was the Lafarge document entitled 'Commercial Policy' (document 33.126/4982). Buzzi was thus in a position to make use of those documents in order to support its reply to the SO. It cannot now rely upon it in order to prove that its rights of defence were infringed during the administrative procedure.

— in so far as it finds in subparagraph (a) that from 26 November to 31 December 1988, Lafarge and Buzzi infringed Article 85(1) of the Treaty by participating in a concerted practice involving the restriction of their autonomy of conduct with regard to production sources,

— in so far as it finds in subparagraph (c) that Vicat and Buzzi infringed Article 85(1) of the EC Treaty after 23 April 1986 by participating in a concerted practice involving the exchange of price information with a view to the restriction of their autonomy of conduct as regards cement supplies in southern France.

2035 The remainder of the pleas examined must be rejected.

VI — Pleas alleging infringements of Article 85(1) of the Treaty, the principle of equal treatment and rights of the defence in that the Commission found that there was a Hispano- Portuguese agreement which infringed Article 85(l)of the Treaty and that various applicants participated in it (contested decision, Article 3(2))

Introduction

2036 Oficemen (T-59/95), Cimpor (T-61/95) and SECIL (T-62/95) deny the existence of the infringement found in Article 3(2) of the contested decision, their participation in it and the duration of the unlawful conduct of which they are accused. Cimpor and SECIL complain,

2040 The following must therefore be disregarded:

— the three last sentences of document 33.322/2901 used in the contested decision, recital 21, paragraph 2, second subparagraph, and recital 49, paragraph 2 (see paragraphs 369 to 372 above) as inadmissible evidence against the three applicants;

— documents 33.322/512, 513, 549, 550, 566 and 567, telexes sent by or addressed to Cimpor in 1988 and 1989, used in the contested decision, recital 21, paragraph 8 (see paragraph 373 above), as inadmissible evidence against Oficemen; and

— document 33.322/1399 concerning the meeting of 27 July 1988, used in the contested decision, recital 21, paragraph 6 (see paragraph 374 above) as inadmissible evidence against Cimpor.

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2045 It also refers to the following record drawn up by Cimpor of the meeting held on 22 July 1985 (contested decision, recital 21, paragraph 2, first subparagraph; documents 33.322/155 to 157):

' 1 . The parties present, who may be regarded as the representatives of Spanish and Portuguese cement producers, expressed their clear support for the principle that there should be no cement movements from Spain to Portugal or from Portugal to Spain that are not instigated or controlled by the cement industry of either country.

2. However, they acknowledge that this unambiguous position of agreement does not prevent third parties (distributors, retailers, consumers, carriers, etc.) from undermining the intentions of the two parties, without the latter being able to exercise effective control. In the event of such situations arising, the two parties should hold open exchanges of information in order to find a solution to the problem.'

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2046 It also refers to an extract from document 33.322/2901 (see paragraph 2040 above), which is a record of a visit to SECIL on 28 and 29 May 1986 by two employees of Hispacement (hereinafter 'the Hispacement document'). The part used against the applicants concerned (see paragraphs 369 to 372 above) states:

2051 In the legal assessment of the conduct at issue (recital 4 9 , paragraph 1), the Commission concludes:

T h e restrictions agreed at the meetings held from 22 July 1985 to 24 April 1989 between Oficemen, Cimpor and SECIL constitute an agreement within the meaning of Article 85(1). Through that agreement, [Oficemen, Cimpor and SECIL] opted, deliberately and in the knowledge that they were committing infringements of the laws of their countries and of the

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

Community competition rules ..., for a form of cooperation designed to restrict, or actually to prevent, trade in cement between the two countries and, in this way, to ensure non- encroachment on their respective traditional sales markets, consolidating the partitioning of the Spanish and Portuguese markets.

The agreement constitutes an infringement as from 1 January 1986, the date on which Spain and Portugal joined the Community, until 24 April 1989 at least.'

2056 According t o SECIL and Cimpor, the record of the meeting of 2 2 July 1985 does n o t reflect the point of view of its author. It does not prove the existence of any agreement, but rather that

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there was support for a principle. The reference to 'the principle that there should be no cement movements from Spain to Portugal or from Portugal to Spain' relates to a statement of intention which should be appraised in the light of Community and national competition rules.

2057 T h e three applicants also challenge the evidential value of the passage from the Hispacement document used against them. There does not in fact any evidence that the meeting of December 1985, which that passage mentions, actually took place.

2058 It is c o m m o n ground that Oficemen, Cimpor and SECIL participated in the meeting of 22 July 1985. That fact is moreover confirmed by the record of that meeting drawn up by Cimpor.

2061 The argument put forward by Cimpor and SECIL to the effect that the record of the meeting attests to support for a principle rather than accession to an agreement must be rejected. An agreement within the meaning of Article 85(1) of the Treaty does not necessarily have to be in writing (Case 28/77 Tepea v Commission [1978] ECR 1 3 9 1 , paragraph 41). For there to be an agreement within the meaning of that provision, it is sufficient for the participants in the meeting in question to have the c o m m o n intention of conducting themselves in the market in a particular way (see the case-law, cited in paragraph 1010 above). In the present case, the record of the meeting of 22 July 1985 clearly shows the existence of a concurrence of wills and, therefore, of an agreement within the meaning of Article 85( 1 ) of the Treaty, relating to the two aspects of the infringement referred to in Article 3(2) of the contested decision, namely the monitoring of cement movements between Spain and Portugal and non-transhipment to their respective home markets.

2062 The other arguments challenging the evidential value of the same document and of the Hispacement document must also be rejected. The evidence must be assessed, not in isolation,

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but as a whole (Case 48/69 ICI v Commission, cited in paragraph 636 above, paragraph 68; Case T-141/94 Thyssen v Commission [1999] ECR II-347, paragraph 175). The documents in question emanated from Cimpor and Hispacement, companies which are perfectly acquainted with the cement market and its traders. Since they thus emanate from two different reliable sources, they confirm the existence of the agreement at issue.

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2. Implementation of the agreement

2067 In recital 49, paragraph 2, first subparagraph, of the contested decision, the Commission states:

'The agreement [between Oficemen, Cimpor and SECIL] was actually implemented. The representative of SECIL stated to Hispacement ... that his firm was determined to abide by the agreement with the Spanish and that Cimpor had resisted any temptation to export even though it had received orders from customers in Spain; the parties to the agreement exchanged all the information necessary to monitor and halt exports by third parties ...; Cimpor refused to sell in Spain on the pretext that "we have no availabilities for export", although it is proven that, during those same periods, it met specific requests for cement from other countries ...'

2068 However, as Oficemen, Cimpor and SECIL point out, various documents relied on by the Commission in recitals 21 and 49 of the contested decision as evidence that the agreement between them was implemented, are not admissible against all the three applicants (three last sentences of the Hispacement document), Oficemen (documents 33.322/512, 513, 549, 550, 566 and 567, cited in the contested decision, recital 21, paragraph 8), or Cimpor (document 33.322/1399, cited in the contested decision, recital 21, paragraph 6) on account of irregularities committed by the Commission during the administrative procedure (see paragraphs 369 to 374 and 2038 to 2040 above).

'[The parties present] acknowledge that [the] unambiguous position of agreement [on the principle that there should be n o cement movements] does not prevent third parties (distributors, retailers, consumers, carriers, etc.) from undermining the intentions of the t w o parties, without the latter being able to exercise effective control. In the event of such situations arising, the t w o parties should hold open exchanges of information in order to find a solution to the problem.'

2072 It would appear from the minutes of the Oficemen board meeting of 13 February 1986 (contested decision, recital 2 1 , paragraph 3 ; documents 33.322/1311 and 1314) that a meeting between Oficemen, Cimpor and SECIL was held on 20 January 1986. Its purpose was to 'exchange information on the development of cement exports between the two countries'. During that meeting, the parties present also agreed to 'inform each other about any exports k n o w n to them'.

2073 According to documents 33.322/163 to 166 and 1406 to 1408 (contested decision, recital 2 1 , paragraph 4) which record the meeting, another meeting took place on 2 3 January 1987 between Cimpor and SECIL and representatives of the Spanish producers, including M r Andia, of Oficemen. In light of those documents, importation into Spain of cement from Portugal was perceived as a problem, so that the participants in the meeting suggested, on the one hand, a medium-term solution consisting of an increase in the price of Portuguese cement, and, on the other, a short-term solution, consisting in discouraging Portuguese operators engaging in cross- frontier exports.

2076 The Court finds that, although in the contested decision (recital 22, paragraph 11) the Commission expressed doubts as to the scope of Spanish Royal Decree N o 1964/1975 of 23 May 1975, it was n o longer disputed during proceedings before the Court that that royal decree, in force from 1975 to 1988, generally prohibited the use in Spain of Portland cement of a resistance below 350 kg per cm 2(cement P-350). Moreover, the Commission does not challenge the explanations put forward by the applicants concerned, according to which two grades of cement were authorised at the time in Portugal, namely grade 30 (P-300) and grade 40 (P-400). SECIL alleges that until 1989 it only produced grade 30 cement. Cimpor claims that it did not begin to produce grade 40 cement until 1985 and in small quantities which were always absorbed by domestic demand. N o r is it disputed that in 1988 Decree N o 1964/1975 was repealed and replaced by Royal Decree N o 1313/1988 of 28 October 1988, expressly prohibiting the importation into Spain of cement which did not comply with the type approved by the Spanish authorities, and of cement which did meet type-approval but lacked a certificate of conformity of production.

2077 However, the argument of the applicants concerned cannot be accepted.

2078 It should be pointed out that, according to the record d r a w n up by Cimpor of the meeting held on 22 July 1985, those w h o took part in that meeting 'expressed their clear support for the principle that there should be no cement movements from Spain to Portugal or from Portugal to Spain that are not instigated or controlled by the cement industry of either country'. Likewise, it is apparent from the admissible part of the Hispacement document that the purpose of the agreement was to prevent 'exports between the t w o countries'. The agreement did not provide that the exported cement should conform to the standards applicable in the country of importation.

2080 Admittedly, the record of the meeting of 6 M a r c h 1987 does expressly mention Oficemen's concern over the problems posed by the use in Spain of grade 30 cement coming from Portugal. However, that document shows that the solution sought to the problem of exports coming from Portugal consisted in increasing Portuguese prices. Moreover, several other documents confirm that that solution was invariably suggested, as Oficemen pointed out during proceedings before the Court (see the records of the meetings of 23 January 1987 (contested decision, recital 2 1 , paragraph 4; documents 33.322/163 to 166 and 1406 to 1408) and from 6 M a r c h 1987 (contested decision, recital 2 1 , paragraph 5; documents 33.322/1410 to 1412)). The applicants cannot therefore claim that any increase in the prices of Portuguese cement was likely to resolve the problem arising, in some circumstances, from the failure of Portuguese cement to comply with Spanish standards.

2081 It follows that the purpose of the various meetings held by the Portuguese and Spanish producers was to limit exports between Portugal and Spain, rather than to make Portuguese exports conform to Spanish standards.

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2084 Oficemen and Cimpor claim that there were objective reasons for such refusals to sell. It therefore had nothing to do with the implementation of an anti-competitive agreement by Cimpor. The applicants explain that Cimpor's capability to export at the time was limited. That company was thus very sensitive to fluctuations in domestic demand and to the technical vicissitudes of production. It was allegedly in such understandable circumstances that, during a particular period, certain orders were accepted and certain others refused. Furthermore, in view of its limited capability to export, Cimpor was not able to establish a strategy for developing export markets. For those reasons, maintaining links with markets in which demand exceeded supply, in particular with African countries with Portuguese as the official language, was still considered a priority, but without neglecting possibilities which might occasionally arise in other markets, such as those of the Cembureau countries, including Spain, and to fill orders sent to it in so far as it was able from a technical and logistical point of view. However, the quantities of grade 40 cement produced by Cimpor were wholly taken up by the Portuguese market. Grade 30 cement was prohibited in Spain. Orders refused related explicitly or implicitly to cement of a type not manufactured by Cimpor and which it did not have available for export.

2087 The justification put forward by Cimpor in the abovementioned telexes relating to its refusal to sell in Spain, namely the lack of availability for export, cannot be accepted. Indeed, it is not disputed that, at the time when Cimpor refused to sell cement in Spain, it had agreed to fill specific orders for cement to: Africa, Guinea, Senegal, Libya, Madagascar, Puerto Rico, United States of America, and Antilles (contested decision, recital 2 1 , paragraph 8; documents 33.322/490 to 492, 496 to 5 1 1 , 514 to 517, 523 to 526, 533 to 536, 539 to 5 4 1 , 543 to 5 4 8 , 551 to 556 and 571 to 574).

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JUDGMENT OF IS. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2089 In view of the automatic nature of the refusals to sell and of the standard response used to that effect which was, moreover, not true, the Commission was right to conclude (contested decision, recital 4 9 , paragraph 2) that such refusals to sell constituted implementation of the agreement entered into by the Portuguese producers and Oficemen. T h a t finding is borne out by the telex from Tracoisa, a Spanish trader, to Cimpor of 13 M a r c h 1989 (contested decision, recital 2 1 , paragraph 8; document 33.322/575): '... If exports to Spain cannot (be) even considered due to the bilateral agreement between Spanish and Portuguese producers, okay but please let us k n o w your possibilities for other markets'. Even if, as Oficemen claims, that telex represents merely the speculative view of one undertaking which could not have any direct knowledge of the alleged Hispano-Portuguese agreement, the fact remains that that factor is evidence which entirely agrees with other evidence proving, when taken together, that the agreement entered into by the Portuguese and Spanish producers was implemented.

2090 Cimpor further argues that all the documents relied upon by the Commission allegedly post- date the adoption of Spanish Royal Decree N o 1313/1988. It could therefore not have been at all legally or technically possible for it to fill the 'Spanish orders'.

2091 However, the relevant date is not that of the adoption of Spanish Royal Decree N o 1313/1988, that is to say 28 October 1988, but rather that of its entry into force, 4 January 1989. Among the documents relied upon by the Commission in recital 2 1 , paragraph 8, of the contested decision, there are several refusals to sell relating to Spanish orders prior to the date on which the royal decree entered into force (Cimpor telexes of 2 4 August 1988 (document 33.322/549), of 11 N o v e m b e r 1988 (document 33.322/532) and o f 2 0 December 1988 (document 33.322/537 and 538). In any event, it must be pointed out that, so far as concerns orders

2093 Firstly, Oficemen claims that the existence of any Hispano-Portuguese agreement is ruled out by the report on the cement industry in Spain, published on 31 July 1991 by the Tribunal de Defensa de la Competencia (Annex O to its application). T h a t report states that there was no sign of the existence of agreements or concerted practices between Spanish producers and foreign producers.

2094 However, the fact that the Tribunal de Defensa de la Competencia did not find any such evidence does not shed a different light on the documentary evidence analysed in paragraphs 2 0 5 4 to 2 0 9 2 above. The study which led the national court to its conclusion of July 1991 did not in fact deal with that direct documentary evidence.

2095 Secondly, Oficemen claims that the increase in cement exports from Portugal to Spain disproves the existence of the agreement referred to in Article 3(2) of the contested decision. Those exports rose from 2 439 to 75 4 2 7 tonnes between 1986 and 1988, that is to say an increase of 2 9 9 3 % , whereas Portuguese exports to other countries decreased from 52.6 million tonnes in 1986 to 39.6 million tonnes in 1988, that is a reduction of 3 3 % . The fact that Portuguese exports to Spain amounted to no more than 2 715 tonnes in 1989 and only 83 tonnes in 1990 was allegedly due to the adoption of Royal Decree N o 1313/1988.

2096 It should however be borne in mind that the Commission, in concluding that there had been an infringement, based itself on documentary evidence of direct collusion between the applicants concerned rather than on an analysis of the market. Any increase in exports from Portugal to

2099 Fourthly, Oficemen, Cimpor and SECIL set out a series of arguments explaining that the reduced volume of exports of Portuguese cement t o Spain between 1 January 1986 and 2 4 April 1989 was due t o the existence of technical and structural barriers rather than t o any alleged agreement between the Spanish and Portuguese producers. Having regard t o the applicable technical standards in Spain, the price levels in Spain, the system of m a x i m u m prices in Portugal and the high utilisation rate of production capacity, export of cement from Portugal to Spain w a s n o t a realistic option.

2100 Thus, SECIL claims t o have produced only grade 30 cement, the marketing and, subsequently, the importation of which into Spain were prohibited (see paragraph 2 0 7 6 above). Cimpor also produced almost exclusively grade 30 cement. It did not begin t o produce grade 4 0 cement until 1985, in small quantities, which were always absorbed by domestic demand. Since the Portuguese plants worked at the limit of their production capacity during the period under consideration (in the order of 9 0 % ) , the use of the existing lines with a view t o manufacturing and stocking P-350 cement or cement of greater resistance intended for export would n o t have been possible without causing serious depletion in the supply of the Portuguese market.

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CIMENTERIES CBR AND OTHERS V COMMISSION

2103 Another factor which helped to dissuade Portuguese producers from selling their cement in Spain was the system of maximum prices applicable in Portugal. According to Oficemen, Cimpor and SECIL, the prices imposed did not give a true view of the costs of production, so that the level of prices in force in Portugal was artificially low. Moreover, the maximum authorised sale price had been the same since 1986 irrespective of whether the cement was delivered to the purchaser from factories situated on the Portuguese coast or from stores in the interior. Accordingly, the 'ex warehouse' sale price did not reflect the cost borne by the cement producer to transport the product between the factory and the warehouse. Purchase of Portuguese cement at Portuguese warehouses situated close to the border at artificially low prices thus became attractive from 1986 for Spanish intermediaries and consumers, which triggered exports to Spain. However, because of the Portuguese pricing system the effect of which was that long-distance sales achieved by producers (including all sales for export to Spain) were subsidised by sales close to factories, Portuguese producers had no interest in promoting their sales for export to Spain at the cost of more profitable sales on the Portuguese coast.

2104 The Court points out that in order to prove the existence of the infringement the Commission relied on documentary evidence of direct collusion between the applicants concerned and of implementation of the agreement, rather than on the reduced volume of cement exports from Portugal to Spain (see paragraphs 2054 to 2092 above).

2106 For the sake of completeness, the Court makes the following observations: the argument based on the divergence between Portuguese and Spanish standards does not justify the monitoring of exports from Spain t o Portugal. Since Spanish cement was, at the time, at least of grade 3 5 , it was of a better quality than the grade 30 produced in Portugal (see paragraph 2082 above). The system of m a x i m u m prices applicable in Portugal could n o t have discouraged 'ex warehouse' sales by Cimpor and SECIL to Spanish customers prepared to pay the transport costs. The argument based on the allegedly prohibitive costs of transport or distance is inconsistent with the large number of Spanish orders placed with Portuguese producers (contested decision, recital 2 1 , paragraph 8; documents 33.322/485, 4 8 6 , 4 9 3 to 4 9 5 , 530 to 532, 5 3 7 and 538). Finally, the Court points out the contradiction between the various arguments put forward by the applicants concerned, w h o allege, on the one hand, that the price levels in Spain and Portugal were nearly identical and, on the other, that, because of the artificially low prices in Portugal, Portuguese cement was attractive to Spanish and Portuguese intermediaries and consumers.

4. SECIL's special position

2107 SECIL maintains that it t o o k n o initiative in seeking to conclude an agreement with the Spanish producers. It claimed that such an agreement would have been of n o interest to it, given that its production capacity was fully utilised to meet domestic demand and it feared Spanish reprisals. It points out that its commercial behaviour did not give rise to Spanish concerns and that Cimpor's refusal to sell are not evidence that it participated in an agreement on non- transhipment to home markets.

5. Conclusion

2111 It follows from all the foregoing that none of the circumstances relied on by the applicants give grounds for overruling the finding that the disputed agreement was concluded and implemented (see paragraphs 2066 and 2092 above).

C — Unlawful nature of the applicants' conduct

2112 Since Cimpor and SECIL admit to having been, during the period covered by the contested decision, the only Portuguese cement producers, and since Oficemen was the trade association to which the Spanish cement producers belonged, the agreement concluded by those parties manifestly restricted competition between Portuguese and Spanish producers and was such as to have a material effect on trade between the two Member States concerned. Such an anti- competitive agreement is one of the kinds of conduct expressly prohibited by Article 85( 1 )(c) of the Treaty.

2113 Even though the first item of documentary evidence relates to a meeting held on 22 July 1985, the Commission was justified in concluding that 'the agreement [constituted] an infringement as

I I - 1015

2114 Oficemen submits that the Commission has not adduced evidence that the agreement or concerted practice was maintained after the accession of Spain and Portugal to the Community. It observes that the documents relating to meetings after 1 January 1986 make no reference at all to a Hispano-Portuguese agreement. At those meetings the Spanish representatives merely expressed their disquiet at the growing imports of grade 30 cement from Portugal and asked the Portuguese producers to negotiate, with their Government, a change of those aspects of the maximum price system which stimulated such exportation. Cimpor also complains that the Commission based its finding of infringement on evidence dating from before 1986. SECIL, for its part, observes that Cimpor's record of the meeting of 22 July 1985 only mentions an intention to enter into an agreement (see paragraph 2056 above). Without breaching the principle of the presumption of innocence, the Commission is not entitled to assume that, as from 1 January 1986, SECIL began to infringe Article 85 of the Treaty by putting that intention into practice.

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CIMENTERIES CBR AND OTHERS V COMMISSION

2118 The Court finds that point 6 of the record of that meeting reveals that the parties considered that their intention not to compete with each other could raise problems from the point of view of Community and domestic competition law in the t w o countries in question. However, that awareness, far from exonerating the applicants concerned of any liability, reveals, as the Commission rightly points out (contested decision, recital 4 9 , paragraph 1), the conscious and deliberate nature of the infringement.

2119 Secondly, SECIL and Cimpor state that the cement industry in Portugal was nationalised in 1975. One of the results of nationalisation was the priority given to servicing the Portuguese market. The balance between domestic demand a n d national production thus arose out of a deliberate policy pursued by the Portuguese State, so that the conduct of the two undertakings falls outside the scope of Article 85(1) of the Treaty.

2122 T h a t argument must also be rejected. Even though use of cement of a resistance below 350 kg per cm" was prohibited in Spain, the various refusals to sell attest to the existence of real demand in Spain for cement from Portugal (see paragraphs 2 0 8 3 to 2091 above). Moreover, none of the refusals to sell to Spanish customers was based on the ground that the Portuguese producers did not produce cement of a quality equal to or greater than that of Spanish cement of resistance 350. Moreover, it was not for the Portuguese and Spanish producers to stem such demand. It was conceivable that potential Spanish importers of cement from Portugal intended to re-export that cement to other States in which the use of grade 30 cement was not prohibited. Finally, the agreement in question also prohibited exports from Spain to Portugal; the applicants have not even claimed that there were technical and structural barriers to it. In those

II - 1 0 1 7

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

circumstances, it was in any event likely to have an appreciable effect on trade between Spain and Portugal.

2123 Even after the entry into force of Spanish Royal Decree N o 1313/1988 on 4 January 1989, the disputed agreement was not rendered purposeless, since the Portuguese producers continued to have an interest in seeing their national market protected and it was in the Spanish producers' interest that the Portuguese producers should not hasten to apply to the Spanish authorities for approval of their cement types which complied with the requirements laid d o w n by them. Thus, SECIL admitted to making its first application for approval on 3 February 1992 (application, point 2.2.6).

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CIMENTERIES CBR AND OTHERS V COMMISSION

namely an increase in the price of Portuguese cement and a policy intended to discourage Portuguese operators engaging in cross-frontier exports (see paragraphs 2070 to 2082 above).

2129 It is also apparent from the documents mentioned in the contested decision that, even leaving aside document 33.322/1399 (see paragraphs 374 and 2 0 4 0 above), other meetings between the Spanish and Portuguese producers also took place, in particular on 25 June 1987, 10 Novem- ber 1897, 5 February 1988, 21 April 1988, 10 May 1988, 2 7 July 1988, 28 October 1988, 12 January 1989 and 2 4 April 1989, as shown in Cimpor's documents 'Programa de Acção Conjunta' and various memoranda and telexes (contested decision, recital 2 1 , paragraph 6). However, the Commission does not have any minutes of those meetings.

2130 The applicants concerned conclude therefrom that the Commission has not adduced any evidence proving that the meetings in question pursued an objective contrary to Article 85 of the Treaty.

II - 1 0 1 9

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

Breach of the principle of equal treatment

2133 Cimpor and SECIL maintain that, by not finding that all the Spanish undertakings which are members of Oficemen or, at least, those which attended the meetings referred to in recital 2 1 of the contested decision, participated in the infringement, the Commission infringed the principle of equal treatment. It is incorrect to allege that the Hispano-Portuguese agreement was concluded between Cimpor and SECIL, on the one hand, and Oficemen, on the other. It is apparent from the documents gathered by the Commission that various Spanish producers, namely Portland Mallorca, Cementos del Mar, Cementos del Atlántico, Portland Valderrivas, Cementos Portland Hispania, Asland, H o r n o s Ibéricos, Hispacement, Cementos Cosmos, Tudela Veguin and Cementos Alba, took part in the meetings between Spanish and Portuguese producers. Cimpor and SECIL rely in that regard on Cimpor's record of the meeting held on 22 July 1985 (documents 33.322/155 to 157), an internal document of SECIL's concerning the same meeting (document 33.322/167), Cimpor's m e m o r a n d a on the meeting of 2 3 January 1987 (documents 33.322/163 to 166), Oficemen's internal m e m o r a n d a on that same meeting (documents 33.322/1406 to 1408) and the m e m o r a n d a relating to the meetings of 5 M a r c h 1987 (document 33.322/171), of 6 M a r c h 1987 (documents 33.322/1410 to 1412), of 5 February 1988 (document 33.322/161) and of 12 January 1989 (document 33.322/997).

2136 So far as concerns incriminating documents not made available to the applicants during the administrative procedure, it must be emphasised again that, even if the extracts from documents reporting the trip of two of Hispacemenťs employees t o Lisbon in May 1986 (document 33.322/2901) are disregarded (see paragraphs 369 to 374 and 2038 t o 2 0 4 0 above), the Commission adduced, in the contested decision, evidence of the existence of the alleged infringement and of the participation in it of Oficemen, Cimpor and SECIL.

B — Exculpatory documents

2137 In their application, Cimpor and SECIL submit that the parts of the Hispacement document (documents 33.322/2898 to 2903) which were not disclosed during inspection of the investigation file during the administrative procedure (see paragraphs 369 to 372 above) contains exculpatory evidence.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/9S, T-48/95, T-50/95 TO T-65/95, T-68/9S TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

to make on the basis of those documents could not have altered the outcome of that procedure for those applicants, since they are not referred to in Article 3(2) of the contested decision (see paragraph 256 above).

1. Case T-59/95 Oficemen v Commission

2141 The Court finds however that the alternative explanations which Oficemen put forward in order to justify the low level of trade in cement between Spain and Portugal during the period under consideration, based on the various documents on which it relies, were not of such a nature as to shed a different light on the body of specific documentary evidence on which the Commission relied in the SO (points 11 and 61(c)) and in the contested decision (recitals 21 and 49), which unequivocally shows not only that an agreement existed but also that it was implemented (see paragraphs 2 0 5 4 to 2 0 9 2 above).

2. Cases T-61/95 Cimpor v Commission, and T-62/95 SECIL v Commission

2142 In their written pleadings of 7 and 10 February 1997, Cimpor and SECIL put forward, first, a series of arguments alleging that they did not receive the chapters of the SO relating to Spain (Chapters 8 and 18) during the administrative procedure. They mention in particular point 55 of the SO (p. 155), which they claim substantiates their argument that the Spanish technical rules explain the reduction of cement exports to Spain. Moreover, according to SECIL, it is clear

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CIMENTERIES CBR AND OTHERS V COMMISSION

from the same point (p. 151) that it did not have any interest in subscribing to an agreement which offered the certain prospect to Spanish producers that it would not export its cement to Spain.

2144 Secondly, Cimpor and SECIL submit, in their statements of 7 and 10 February 1997, that points 55 and 87 of the SO (pp. 153, 155 to 157 and 220) show that, if the absence of exports was indeed the result of an agreement, responsibility for that infringement should be attributed not only to Oficemen, but also to the Spanish cement producers. They further claim that, if they had had access to the SO pages in question, the manifestly discriminatory nature of the contested decision could have been avoided. In support of that argument they mention numerous other documents in the investigation file. Thus, they submit that it is clear from Oficemen's Articles of Association (documents 33.322/1216 to 1219) that, in the event of an agreement being entered into, this would be possible only between the Portuguese and Spanish producers, but not between the Portuguese producers and Oficemen. That is also clear, furthermore, from the minutes of Oficemen's board meetings of 13 February 1986 (documents 33.322/1311 to 1318), of 18 September 1986 (documents 33.322/1319 to 1323), of 12 March 1987 (documents 33.322/1329 to 1333) and of 10 March 1988 (documents 33.322/1334 to 1340), from various telexes and notes from Cimpor, SECIL and Oficemen (documents 33.322/1035 to 1038), and replies from Asland (documents 33.322/1801, 1802 and 1805) and Hispacement (document 33.322/2597) to a question put by the Commission during the administrative procedure.

2145 The Court finds that, if Cimpor and SECIL had been able, during the administrative procedure, to point out that several passages of the SO showed that Spanish undertakings participated in the Hispano-Portuguese agreement the Commission could at most only have found that the latter had participated either in addition to or instead of Oficemen in the infringement complained of. On the other hand, such an observation would not have been of such a nature as to exonerate Cimpor and SECIL in any way, since it would not have shed a different light on the specific documentary evidence establishing Cimpor and SECIL's participation in that agreement (see paragraphs 2 0 5 4 to 2 0 9 2 above).

of directors of Ciments d'Obourg of 29 September 1988 (document 33.322/215). They also rely on various minutes of the Comité de Programación, a committee set up by several Spanish undertakings (documents 33.322/2816, 2820, 2829, 2830, 2833 and 2837). Those documents confirm that the Portuguese undertakings were unable to exploit the Spanish market in the long term. They show that, where surplus production was significant, as was the case in Spain, definition of an export policy would have made sense only towards countries which had regular deficits and subject to the existence of permanent capacity to deliver cement and clinker. For that reason, undertakings such as Asland, Molins, Sanson, Uniland, Portcemen and Hispacement were obliged to act together in order to palliate the difficulties entailed by the fluctuations in exportable surpluses. In support of the same argument, SECIL relies moreover on a document entitled 'Peter Schuhmacher', of 22 May 1980 (document 33.126/6007). It refers, further, to the report on the trip by Mr Torrela, of Hispacement, to Lisbon, on 3 to 5 June 1987 (document 33.322/2954), from which it is clear that neither in 1986 nor in 1987 was there any actual export capacity and that it had even imported clinker. The memorandum shows moreover that Hispacement was aware that SECIL's export capacities were purely theoretical.

2148 Fourthly, Cimpor and SECIL consider that the content of a number of documents is inconsistent with the existence of an Hispano-Portuguese agreement or their participation in it. They explain that their participation in various meetings with Spanish producers must be understood as a prudent response on their part t o the concerns expressed by the Spanish producers. They submit in their written pleadings of 2 1 January 1998 that several documents point o u t the large export capacity of the Spanish undertakings. Those documents are t w o plans setting out Cim-Bel's strategy (documents 33.126/8382 and 8406) and internal Lafarge m e m o r a n d a of 20 and 2 5 April 1988 (documents 33.126/4631 and 4 6 2 1 to 4624). Cimpor also relies on a CCB d o c u m e n t entitled 'Basic information 1 9 8 7 ' (see p a r a g r a p h 1169 above) (documents 33.126/1634 and 1636). It w a s natural for the Portuguese undertakings t o view with some apprehension the concerns of the Spanish producers, whose surpluses were equal t o or greater than the Portuguese market, and which were complaining of unfair competition conditions. Cimpor and SECIL claim that, if they had h a d access t o those documents during the administrative procedure, they would have been better able t o explain the context in which the meetings with the Spanish producers t o o k place.

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CIMENTERIES CBR A.ND OTHERS V COMMISSION

2150 Cimpor and SECIL submit, in their written pleadings of 7 February 1997, that certain Oficemen documents (documents 33.322/1225 and 1372 to 1374) show that there were some imports of cement and clinker from Spain t o Portugal between 1986 and 1989. They observe next that, in the report for 1988 drawn up by the Directorate-General for Mines and Construction (documents 33.322/1245 t o 1289), the pages on cement imports and exports are missing. In their written pleadings of 21 January 1998, they state that the Informe General al Consejo de Administración (General Report to the Board of Directors) of Hispacement of M a r c h 1987 (document 33.322/2941), proves that trade in cement between Portugal and Spain continued to grow between 1986 and 1989, when the new Spanish technical rules blocked the access of Portuguese cement to the Spanish market. T h e document confirms that meetings were held by Spanish producers, in particular between Hispacement and Expoccmsa, on coordinat- ing the export of bagged cement and clinker to Portugal.

2151 T h e Court finds that the pages of the report drawn up by the Directorate-General for Mines and Construction on the import and export of cement were accessible to the applicants following the measure of 18 and 19 June 1997. The pages in question are pages 5 7 to 6 7 , which are included in the file as documents 33.322/1273 to 1278. However, in their written pleadings of 21 January 1998, Cimpor and SECIL did not claim that the fact of not having had access to those documents during the administrative procedure was detrimental to their defence.

2153 Cimpor also refers, in its memorandum of 7 February 1997, to an extract from Valenciana's annual report for 1988 (document 33.322/1818), which mentions under-use, in the order of 30%, of the production capacity available in Spain. It maintains that it could have used that document in support of its argument that it made no sense for it, as an undertaking without any significant export capacity, to favour exportation to markets in which the potential offer greatly exceeded demand as a result of plant capacity.

2155 In its written pleadings of 2 1 January 1 9 9 8 , SECIL refers t o an internal m e m o r a n d u m of Cimpor's of 1 2 February 1 9 8 7 (document 33.126/108), which allegedly attests t o the importation in 1 9 8 7 by Cimpor of cement in areas on the border with Spain in sufficient quantities for the Spanish undertakings t o feel threatened. It also cites a Cimpor d o c u m e n t of 12 April 1988 regarding Cementos del N o r t e (document 33.322/185) which refers t o the serious threat from the export of Spanish surplus t o Portugal and the need for the dissuasive measures taken by Cimpor. It claims that it could have used those documents t o explain the non-collusive relationship between undertakings in Spain and Portugal. It explains that the Spanish market w a s threatened by the lower prices in Portugal and the Portuguese market by the Spanish surpluses. There w a s competition, even if it w a s cautious and restricted by the circumstances, a n d any thought of limiting it by means of a restrictive agreement would have been an illusion. T h a t analysis w a s corroborated by the study carried o u t by Cimpor on 17 M a y 1988 of the takeover bid made by Cementos del N o r t e for the Souselas factory (documents 33.322/256 t o 269). At the time, Cementos del N o r t e felt threatened by the Souselas factory's export capacity and its plan t o purchase it w a s seen as a w a y of eliminating a competitor.

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CIMENTERIES CBR AND OTHERS V COMMISSION

Cimpor was aware of the aggressiveness of the Spanish cement producers and did indeed consider the market of the north of Spain as a natural market with great potential. Neither the strategy pursued by Cementos del Norte nor Cimpor's reaction are consistent with the existence of an agreement between the cement industries of both countries for the purpose of protecting their respective home markets and discouraging trade in cement.

2157 Fifthly, Cimpor and SECIL submit, in their written pleadings of 21 January 1998, that various documents could have reinforced their argument that the main topics of discussion at the meetings between Spanish and Portuguese producers, during the period covered by the contested decision, were technical requirements and quality control of imported cement. They refer to the minutes of the meetings or the board of directors of Oficemen of 18 September 1986 (documents 33.322/1319 to 1323), of 12 February 1987 (documents 33.322/1329 to 1333) and of 10 March 1988 (documents 33.322/1334 to 1340). The use of those documents during the administrative procedure would have therefore enabled them to strengthen the line of argument that the Spanish undertakings were above all concerned about the unequal conditions of competition and the notion that trade in cement between the two countries should be on the basis of similar technical regulations and qualities. The minutes of Asland's board of directors meeting of 24 September 1986 (documents 33.322/1607 and 1608) would also have been useful to that end. T h a t document purportedly shows that Asland was concerned by cement imports of no declared origin and by the need to adopt measures to thwart them. Far trom contemplating seriously the possibility of agreeing to share the market, Asland sought rather the adoption of monitoring statistics and quality checks.

2158 Cimpor relies on other documents which, in its view, could have reinforced its argument that the main topic of discussion at the meetings between Spanish and Portuguese producers, during the period covered by the contested decision, was that of the technical requirements in force in the two countries and their implications for bilateral trade. In its written pleadings of

2159 It must be stated that that argument was already pleaded by the applicants during the administrative procedure (contested decision, recital 2 1 , paragraph 10) and rejected in the contested decision. Thus, as the Commission found (contested decision, recital 4 9 , paragraph 3): 'if the parties' concern w a s t o prevent the circulation of cement that did n o t correspond t o the standards of a country, such concern does n o t explain w h y the monitoring of cement movements between the t w o countries by the producers themselves would have brought the cement exported into conformity with the standards of the country of destination. In addition ... it is n o t the task of an undertaking (or association of undertakings) t o act, on its own initiative, in place of the public authorities responsible for implementing the laws of its c o u n t r y . . . ' . Moreover, it considered (contested decision, recital 2 1 , paragraph 1) that the argument w a s not sufficient t o 'justify the control of any exports from Spain t o Portugal since Spanish cement [was] at least grade 35 and thus higher than the Portuguese grade 3 0 ' . In so far as documents 33.322/1048 and 1049, 1051 and 1052, 1319 t o 1 3 2 3 , 1329 t o 1 3 3 3 , 1334 t o 1340, 1 3 6 2 , 1 3 6 3 , 1607 and 1608 substantiate an argument which w a s already p u t forward during the administrative procedure, and in the absence of any explanation by the applicants on w h a t those documents could add t o that argument, it must be held that Cimpor and SECIL have not been able t o establish that, h a d they h a d access to the said documents during the administrative procedure, that procedure would have h a d a different outcome.

2163 In that respect, it is sufficient to observe that the possible existence of institutionalised agreements between Italian and Swiss producers is not of such a nature as to shed a different light on the specific documentary evidence on which the Commission based itself both in the SO (points 11 and 61(c)) and in the contested decision (recitals 21 and 49) in order to find the existence of the infringement and that the Portuguese producers participated in it.

2164 It follows from all the foregoing that the rights of the defence of Oficemen, Cimpor and SECIL were not affected by the lack of access to the parts of the SO and to the documents on which they relied in order to exculpate themselves during the present proceedings.

Conclusion

2165 It follows from all the foregoing (see paragraphs 2036 to 2164 above) that the pleas examined must be dismissed.

VII — Pleas alleging infringements of Articles 85(1) and 190 of the Treaty, the principle of equal treatment and the rights of the defence in that the Commission finds that there was a Franco-German agreement and concerted practice contrary to Article 85(1) of the Treaty and that various applicants participated therein (contested decision, Article 3(3)(a))

Preliminary observations

consisting in a Franco-German agreement and concerted practice, dispute the existence of such an agreement and concerted practice and also their participation in the infringement. Ciments Français and Heidelberger specifically dispute the existence of the various elements in respect of that infringement, namely an agreement on the sharing of the Saarland market, various concerted practices and an agreement on the general regulation of cement supplies between France and Germany, or at the very least their participation therein. Dyckerhoff, SFIC, Cedest, Lafarge and BDZ dispute the existence of certain of those elements, or at the very least their participation therein. Ciments Français, Heidelberger and Lafarge dispute the length of their participation in the infringement. Ciments Français also criticises the artificial nature of the link which the Commission finds between the three elements identified in respect of that infringement. The applicants' complaints relate both to the assessment of the economic background to the alleged Franco-German agreement and to the interpretation of the evidence which the Commission puts forward in the contested decision.

2167 Before assessing the substance of the various arguments put forward, it is appropriate to examine the infringement in question as presented in the contested decision.

2168 T h e Commission states in Article 3(3)(a) of the contested decision that SFIC, Lafarge, Ciments Français, Cedest, B D Z , Dyckerhoff and Heidelberger 'infringed the provisions of Article 85(1) of the Treaty from 23 June 1982 to at least 30 September 1989 by participating in agreements and concerted practices involving the regulation of cement supplies from France to Germany and from Germany to France'. The reasoning which the Commission devotes to this infringement in the contested decision is to be found, in the account of the facts, in recital 2 2 , paragraphs 1 to 11 and 13 to 18, first subparagraph, and, in the legal assessment, in recital 5 0 , paragraphs 1 to 4.

The single and continuous infringement relating to the restriction of cross-frontier flows between France and Germany was committed, from 23 June 1982 to 30 September 1989, by SFIC, Cedest, Ciments Français, Lafarge, BDZ, Dyckerhoff and Heidelberger.'

2171 The Commission therefore finds the participation of those applicants in an infringement consisting of various elements, the existence of which it claims to have established on the basis of specific documentary evidence. The arguments put forward by the applicants seek to show that the Commission has failed to adduce proof of its allegations The Court will examine those arguments in turn according to the element of the infringement to which they relate.

Agreement to share the Saarland market

2172 It follows from the contested decision that the Commission, as it has confirmed by implication in its written submissions and expressly in its answer to a written question put by the Court in Cases T-35/95, T-36/95, T-38/95, T-39/95, T-42/95, T-43/95 and T-48/95, considered that one of the constituent elements of the infringement referred to in Article 3(3)(a) of the contested decision was an agreement to share the Saarland market.

2173 Without providing any specific details of the date on which the agreement was concluded or from which it was applied, the Commission observes in the Legal Assessment of the contested decision (recital 50, paragraph 2, first and second subparagraphs):

'The memoranda of 23 June 1982, 22 July 1982 and 17 November 1982 ... show that the sharing of sales on the Saarland market between Ciments Français, Cedest, Heidelberger and Dyckerhoff was an established fact that was not disputed by any of the undertakings concerned, since it was only other markets that were disputed ("Saarland excluded").

2176 The Commission thus explains (recital 50, paragraphs 2, third subparagraph, and 3, first subparagraph):

'This agreement on the sharing of the Saarland market initially involved Ciments Français, Cedest, Heidelberger and Dyckerhoff. However, on the basis of the points made in paragraphs 3, 4 and 5 below, the Commission considers that the agreement forms part of the wider arrangements covering relations as a whole between the German and French producers, not just these four producers alone.

Following the exports by Cedest to the German Länder other than Saarland and the German producers' reaction in France, bilateral consultations took place with a view to limiting cross- frontier flows of cement.'

2177 The bilateral agreements referred to correspond, in the structure of the contested decision, to the concerted practices referred to in Article 3(3)(a) of the contested decision.

II - 1032

CIMENTERIES CBR AND OTHERS V COMMISSION'

2180 Consequently, even though in the contested decision the Commission finds an infringement only in respect of the concerted practices implemented between 1982 and 1984 and the agreement concluded in 1984 when it states (recital 50, paragraph 3 , final subparagraph) that '[t]he concerted practices described here, which took place from 1982 to 1984, and the 1984 agreement resulting from the letter of 2 2 September 1986 constitute infringements of Article 85(1) committed by SFIC, Cedest, Ciments Français, Lafarge, BDZ, Dyckerhoff and Heidelberger', its failure expressly t o refer to the agreement to share the Saarland market leaves no scope for ambiguity as t o the characterisation by the Commission of that agreement in the contested decision, contrary to what is alleged by B D Z . Moreover, the wording of Article 3(3)(a) of the contested decision refers to the participation of the applicants in question in agreements and concerted practices. The use of the plural confirms that the agreement to share the Saarland market is regarded as one of the constituent elements of the infringement.

2181 As regards the evidence, Dyckerhoff, Ciments Français, Heidelberger and BDZ claim that the Commission has failed to establish the existence of an agreement to share the Saarland market in 1982 and 1983. Cedest (T-38/95) denies having participated in such an agreement at that time.

2182 For the purpose of establishing the existence of the agreement, the Commission relies in the contested decision (recitals 2 2 , paragraph 2, and 50, paragraphs 1 and 2) on, first, four documents and, second, the setting-up of a transport company, the Saarländische Silo-Transport G m b H (hereinafter 'SST').

2187 In point 1 of that memorandum, which deals with the background to supplies of German cement in eastern France, the author points out that:

'Historically, the starting point to this business was when Saarland became an economic part of Germany in 1959.

... In the period 1947-1959, cement was supplied by French (Thionville and Hagondange) and German steelmakers under a specific quota system. Thus, until recently, deliveries were broken down as follows:

II - 1034

CIMENTERIES CBR AND OTHERS V COMMISSION

— SCF [Ciments Français] = 120 000 tonnes/year through Saarländische Zement-Gesellschaft (affiliated to SCF);

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2190 Thus the m e m o r a n d u m goes on:

'Despite the devaluation of the French franc and the price freeze (11.6.82), German producers decided to intensify their action in the East.

Furthermore, Cedest is spoiling the climate which can only result in conflict, a conflict that is liable to spread at a time when we are endeavouring to increase our tonnage.

T h e problem remains unsolved, however, as regards the tonnes taken on the French market by German producers, owing to the attitude of Cedest.'

2191 Accordingly, it cannot be concluded from the m e m o r a n d u m in question that an agreement to share the Saarland market existed in 1982, as the Commission claims (contested decision, recital 50, paragraph 2).

'Gr 1) Background

Two years ago, opportunity to speak to G d'A. about

— Laf. [Lafarge] in Germany

— Cedest's relations — South Germany

The first disruption was Saarland. Rule of the game sharing. France the result being

Germany a price increase of DM 15 or % . Disastrous clause 5 000 t too much -> necessary. 10 000 reaction

2198 The author of the m e m o r a n d u m also states that 'BC' asks ' W h a t are Cedest's rights since this has been going on for 10 years?' Those words were spoken by M r B. Collomb, of Lafarge, w h o was at the meeting representing the interests of Wössingen (formerly Portland Zementwerk Wössingen, P Z W for short), a German subsidiary of Lafarge (contested decision, recital 2 2 , paragraph 1 1 , fourth subparagraph). His words show that the disruption caused by Cedest's conduct had been continuing for 10 years when the m e m o r a n d u m was drafted.

2199 Accordingly, it cannot be maintained that the Lafarge internal m e m o r a n d u m of 23 June 1982 shows that the agreement to share the Saarland market was still being applied in 1982 and 1983.

2200 T h a t document and the preceding document show that the agreement to share the Saarland market was an arrangement whose scope extended beyond the boundaries of Saarland and covered all relations between France and Germany. The agreement was not to sell cement outside the home frontiers and where sales were made these were to be made within the agreed limits, as for the Saarland market, which was an exceptional case owing to its historical attachment. However, the two documents do not show that the agreement still existed in 1982 and 1983, since they record that it was called in question not only by Cedest but also by the German producers.

2201 The Commission cites two further documents in support of its argument: an undated internal note by Lafarge (documents 33.126/6582 and 6583), cited in recital 2 2 , paragraph 7, of the contested decision, setting out the content of discussions held at a meeting on 17 November 1982 between Cedest, Dyckerhoff and Heidelberger, and a summary record d r a w n up by Ciments Français on 17 M a y 1983 (documents 33.126/4251 to 4253), cited in recital 2 2 , paragraph 9, of the contested decision, which reports a meeting between Ciments Français and Dyckerhoff on 9 and 10 M a y 1 9 8 3 .

2205 In its observations of 7 January 1998 concerning access to the Commission file which it had been granted following the measure of 18 and 19 June 1997, Cedest relied, in particular, on the content of an internal note of Lafarge of 7 January 1983 (documents 33.126/7514 to 7516), to which it had not been given access during the administrative procedure, to challenge the probative value of the internal Lafarge note cited in recital 22, paragraph 7, of the contested decision and to establish that it had continued to act independently in Germany during that period.

2206 It should be emphasised that the note of 7 January 1983, which the Commission, at the hearing in Case T-38/95, did not deny had an objective link with a complaint against Cedest, would not only have been useful to Cedest for the purpose of its rights of defence during the administrative procedure (see paragraph 2 4 7 above and paragraphs 2284 to 2 2 9 0 below) but sheds fresh light on the content of the internal note by Lafarge referred to in recital 22, paragraph 7, of the contested decision as regards what was actually said by Cedest's representatives during the meeting on 17 November 1982 with the representatives of Dyckerhoff and Heidelberger.

name 'Bremke' corresponds to Mr T. Brenke, who represents Heidelberger. Second, the meeting to which the note of 7 January 1983 refers took place on 10 December 1982, less than a month after the meeting on 17 November 1982 between Cedest, Dyckerhoff and Heidelberger. Third, both notes, the note of 7 January 1983 and the note referred to in the contested decision (recital 22, paragraph 7), are internal notes of Lafarge, drafted by the same person, Mr Marichal. Fourth, the wording of the note of 7 January 1983 shows the link between that note and the undated note referred to in the contested decision (recital 22, paragraph 7). Thus the first paragraph of the undated note states that it is a record of the meeting of 17 November 1982 given to Mr Marichal by Mr K. Bücker-Flürenbrock via the telephone on 18 November 1982 (see paragraph 2203 above). The note of 7 January 1983 not only mentions the pleasant atmosphere at the meeting which Mr Lose, of Dyckerhoff, and Mr Brenke, of Heidelberger, had with the representatives of Cedest, but refers expressly to what Mr Bücker-Flürenbrock ascribes to Cedest during that meeting (see preceding paragraph).

2209 The wording of the note of 7 January 1983 and the source of the information which it records therefore remove all probative value from the document which the Commission used in the contested decision (recital 2 2 , paragraph 7) as evidence of what Cedest's representatives said about the Saarland market at the meeting of 1 7 November 1 9 8 2 .

2210 First, it directly contradicts the wording of the note cited by the Commission in the contested decision and from which it concludes that Cedest was prepared to limit its sales in Germany and adapt them t o market trends (recitals 2 2 , paragraph 7, and 5 0 , paragraph 3 , second subparagraph). Second, unlike the internal note citea in the contestée! decision (recital 2 2 , paragraph 7), they report information obtained from persons, M r Lose and M r Brenke, w h o actually attended the 17 November 1982 meeting between Cedest, Dyckerhoff and Heidelber- ger.

2213 Second, the Commission does not demonstrate that an overall agreement to share the Saarland market was pursued solely on the basis of the summary record drawn up by Ciments Français on 17 May 1983 (contested decision, recital 22, paragraph 9; documents 33.126/4251 to 4253). The very most that can be inferred from that record is that there was an exchange of views between Dyckerhoff and Ciments Français concerning the Saarland market.

2214 The words used indicate that the Saarland situation was seen, by Ciments Français at least, as being different from the 'zone' in which Ciments Français operated through the Luxembourg company Intermoselle, which it owned jointly with Ciments Luxembourgeois and Dyckerhoff.

2215 Thus in the second subparagraph of paragraph 1 the author of the record says of a representative of Dyckerhoff, M r Grüner, w h o was to retire: ' H e will continue to play an active role, however, especially concerning relations with neighbouring countries. He will therefore probably continue to be involved in one way or a n o t h e r in Intermoselle, Ciments Luxembourgeois and perhaps the situation in Saarland.'

2216 In the second and third subparagraphs of paragraph 5 the author says: ' M r Dotimene, [who] provided a broad account of the projects which we have agreed with CL [Ciments Luxembourgeois], revealed that we regard our position in IM [Intermoselle] as the starting point for our entire policy in the region, that, on that basis, where we are on an equal footing with D Y Z [Dyckerhoff], we should reflect together on future changes in which we should be associated. Similarly, it would be desirable to be on the same side in the sector in Saarland, where there will be changes.' The author of the record thus implicitly states that at that period the two producers concerned were not, or were no longer, on tne same side in the sector in the Saarland market and that changes in the market situation were expected.

2220 Only the existence of the agreement to share the Saarland market, as apprehended in the contested decision, is capable of affecting the legality of Article 3(3)(a) of that decision, since the Commission regards it as one of the elements of the infringement which commenced on 23 June 1982 (see paragraphs 2 1 7 2 to 2 1 8 0 above).

2221 As regards the agreement to set up SST, to which the Commission refers in recital 22, paragraph 2, of the contested decision, none of the applicants concerned disputes either the existence of that company or the dates on which, according to the contested decision, it was set up and sold (recital 22, paragraph 2). Dyckerhoff claims that SST has no relevance to any question of the sharing of supplies and that its activities were confined to transporting cement in silos. Heidelberger observes that it had n o influence over SST, since it had only a small shareholding in that company, and that it never used SST to transport its cement.

2224 It follows from all the foregoing that the Commission has failed to demonstrate the existence in 1982 and 1983 of the agreement to share the Saarland market to which it refers in the contested decision. Accordingly, there is no need to decide on the participation of the various parties in such an agreement or on the claims of Ciments Français and Heidelberger that the matters are time barred.

2225 Article 3(3)(a) must therefore be annulled in part in so far as it finds that Dyckerhoff, SFIC, Cedest, Ciments Français, Heidelberger, Lafarge and BDZ participated in an agreement to share the Saarland market from 23 June 1982.

Concerted practices between various French and German producers and associations between 1982 and 1984

2226 Dyckerhoff, SFIC, Cedest, Ciments Français, Heidelberger and Lafarge deny having in any way participated in the concerted practices which the Commission found in the contested decision. B D Z on the other hand does not devote any specific argument to the concerted practices.

2227 Before the merits of the various arguments put forward by the applicants are assessed, it is appropriate to recall the description of the concerted practices given by the Commission in the contested decision.

2228 In recital 50, paragraph 3, first subparagraph, the Commission states:

2231 The Commission states (fifth subparagraph) that these various instances of collusion are 'concerted practices [which] led to the conclusion of an agreement between the French and German undertakings and associations of undertakings concerned' and observes (seventh subparagraph) that those concerted practices, which took place from 1982 to 1984, constitute infringements of Article 85(1) of the Treaty.

2232 In Article 3(3)(a) of the operative part of the contested decision the Commission finds the existence of an infringement consisting, inter alia, of those concerted practices.

2233 In support of the contested decision the Commission relied on the content of a number of documents to establish the five concerted practices referred to in recital 50, paragraph 3, second and third subparagraphs, of the contested decision, which took place in 1982 and 1984 and had 'as their object the sharing of markets and the restriction of cross-frontier flows of cement between France and Germany' (contested decision, recital 50, paragraph 4, first subparagraph) and more particularly to 'extend the agreement on the Saarland to other German Länder and to fit the agreement into the broader framework of the regulation of trade flows between France and Germany' (contested decision, recital 50, paragraph 4, second subparagraph).

2234 Dyckerhoff does not deny that it took part in discussions with German and French producers in 1982 and 1983 or that it was concerned about Cedest's expanding activities in Dyckerhoff's natural market. Similarly, Heidelberger admits that there may have been contacts between French and German producers in 1982 with a view to putting a stop as soon as possible to the cross-frontier supplies which had increased at that time. However, it states that no agreement was concluded.

' l ) Background':

'... then Gemalen Schaben Germany pq domestic reaction in France. Verband [BDZ] found it very hard to see all the more so because there was N o t dominate the partner (subsidiary)? Talks with Fr. syn. [SFIC] and let's suppose that tonnage increased to the point at which the market was disrupted CLK 2 5 / H O Z 25 and PZ 35 mixture by R M C . Publicity Waited a very long time without doing anything ...'

2238 SFIC considers that there is no reason to think that the talks in question were talks with BDZ and points out that the note in any event relates to events before 1982.

2239 Although this passage from the note actually refers to BDZ ('Verband') and to talks with SFIC, it appears, as SFIC says, in the context of an historical account by M r Grüner of the events which marked relations between the French and German industries following Cedest's conduct in the 1970s. Even supposing that such references provide evidence of the existence of talks between SFIC and BDZ, they clearly relate to a period before the note in question was drawn up.

2240 The note therefore fails to establish the existence of talks between SFIC and BDZ alleged to have taken place between 1982 and 1984.

II - 1045

2243 At least one passage in that letter (first and second subparagraphs) confirms that meetings were held between the two associations in 1984 to deal with the problems encountered in relations between the French industry and the German industry: 'As you k n o w I have periodic meetings with Jürgen Lose [from Dyckerhoff] and Ted Brenke [from Heidelberger]. I believe, if we look back at the situation we were faced with in 1984, that w h a t we discussed during the course of these meetings has worked reasonably well.' It is significant, moreover, that although the letter is written on Ciments Français notepaper, M r Laplace makes particular reference to nis capacity as Chairman of SFIC (fifth paragraph) and refers to the 'French parties'. Similarly, he does not refer specifically at any point in his letter to the position of Heidelberger, of which M r Schuhmacher was Chairman, but speaks of the 'German side' and of the 'French and German interests'. Last, the matters dealt with in the letter are within the competence of a national trade association, since they refer to relations between the industries of t w o different countries.

2244 The Commission also refers to the discussions at the Cembureau H e a d Delegates meeting on 19 M a r c h 1984 in footnote 100 and in recital 50, paragraph 3, subparagraph 4, of the contested decision.

2245 As the Commission points out in footnote 100, it follows from the m e m o r a n d u m to the Chairman dated 15 M a r c h 1984, concerning the meeting of Cembureau H e a d Delegates on 19 M a r c h 1984 (documents 33.126/11728 and 11729), referred to in recital 19, paragraph 9, of the contested decision, that exports from France to Germany were seen by the meeting as still being a 'hot spot'. Both SFIC and B D Z participated in that meeting, the former represented by M r Collomb and the latter by M r A. von Engelhardt (recital 19, paragraph 8).

— The hot spots are still:

— Exports from Germany to the United Kingdom and Ireland;

— Exports from France to Germany;

— Exports from Spain to Ireland and the United Kingdom.

— A new hot spot is exports from Italy to Switzerland.

— Participants will then be asked to comment round the table.'

2250 Finally, the content of the documents presented in the contested decision n o t only gives reason to conclude that talks were held between the t w o national associations, SFIC and B D Z , at least in 1984, but also shows t h a t the subject-matter of those talks concerned the special situation of relations between the industries of both the countries concerned, and in particular the attempts to limit or regulate exports from one country t o the other. The anti-competitive nature of the subject-matter of the talks in which the t w o associations were involved is therefore established. Moreover, subject to proof t o the contrary, which it was for the associations t o adduce (Commission v Anic, cited in paragraph 270 above, p a r a g r a p h 1 2 1 , and Hüls v Commission, cited in p a r a g r a p h 155 above, paragraph 162), it must be held that the talks between SFIC and B D Z influenceď their conduct and that of their members concerned by trade between France and Germany.

2251 It follows from the foregoing (paragraphs 2 2 3 6 to 2250) that the Commission was entitled t o find that there was a concerted practice between SFIC and B D Z contrary to Article 85(1) of the Treaty. However, the contested decision does not contain any evidence t o show that the concerted practice existed before 1984.lt follows that Article 3(3)(a) must be annulled in so far as it finds t h a t there were unlawful talks between SFIC and B D Z before 1984.

B — Pressure exerted on Cedest by SFIC and the other French producers concerned

2252 The Commission infers from the internal m e m o r a n d u m of Lafarge of 2 3 June 1982 (contested decision, recitals 2 2 , paragraph 4, and 50, p a r a g r a p h 3, second subparagraph; document 33.126/6592 t o 6596) t h a t following concerted action, whose objective was t o limit cross- frontier flows of cement, the SFIC and the other French producers concerned exerted pressure on Cedest t o restrain its exports t o Germany.

2255 When placed in the context of the discussions described in the m e m o r a n d u m , this passage shows that pressure was actually exerted on Cedest. The pressure was anti-competitive in nature: the passages which precede the one set out above show that the purpose of the pressure was to induce Cedest to put a stop to its aggressive commercial policy in Germany and to respect the 'home market principle' (the expression found on p. 2 of the memorandum).

2256 As regards those responsible for the pressure, the Commission refers to SFIC and 'the other French producers concerned' (contested decision, recital 50, paragraph 3, second subpara- graph), namely Lafarge and Ciments Français.

2257 SFIC maintains that in the SO the Commission, relying on an extract from the Lafarge internal m e m o r a n d u m of 23 June 1982, criticised it only for having held talks with BDZ. T h a t document does not mention the existence of pressure exerted on Cedest.

2260 N o r does Lafarge devote any specific argument to the abovementioned passage. It merely states that its internal m e m o r a n d u m reveals only that its good offices were sought in the dispute provoked by Cedest and that, as the other documents referred to in recital 22 of the contested decision bear out, there was continuing disagreement among the various parties concerned, which precluded any concerted action or cooperation susceptible of being classified as a concerted practice within the meaning of case-law (Case 48/69 ICI v Commission, cited in paragraph 636 above, paragraph 64, and Case T-2/89 Petrofina v Commission [1991] ECR II-1087, paragraphs 2 1 4 and 215). In that regard, Lafarge also relies on the content of its internal m e m o r a n d u m concerning a meeting between Cedest, Dyckerhoff and Heidelberger on 17 November 1982 (contested decision, recital 22, paragraph 7) and a summary record d r a w n up by Ciments Français on 17 M a y 1983 (contested decision, recital 22, paragraph 9), which show that Cedest did not alter its conduct or withdraw from the German market.

2261 It should be pointed out, however, that even supposing that Lafarge's interpretation of its internal m e m o r a n d u m of 23 June 1982 is correct, it cannot be described as complete. The fact that it was approached to settle the dispute provoked by Cedest does not weaken the evidence that there was in fact concerted action with Ciments Français in particular. N o r does it preclude the possibility that it exerted some pressure on that occasion. The fact that Lafarge holds shares in Cedest is even of such a kind as to confirm the reality of the pressure described in its o w n internal m e m o r a n d u m of 23 June 1982. The illegal nature of the concerted action aimed at exerting pressure on Cedest has been established (see paragraph 2 2 5 5 above).

2264 It should be observed that, contrary to what Lafarge claims, the existence of the concerted action designed to bring pressure to bear on Cedest is established not on the basis of an economic analysis of the market, in the light of an 'oil stain' theory, but on that of specific documentary evidence coming from Cedest itself. The question whether Lafarge had or did not have any 'interest' in bringing pressure to bear on Cedest is therefore irrelevant, since the existence of such pressure has been properly established. N o r is it contradictory for an undertaking to participate in a bilateral agreement designed to ensure respect for home markets and at the same time to seek to strengthen its local subsidiary in a territory concerned by that agreement. T h a t observation also applies to all the concerted actions in which Lafarge is alleged to have participated (see paragraphs 2 2 9 5 to 2 3 1 5 and 2331 to 2442 below).

2266 Furthermore, Lafarge's attempt to rely on its own internal memoranda of 6 August 1982 (documents 33.126/7522 to 7524) and 7 January 1983 (documents 33.126/7514 to 7516) is inadmissible under Article 48(2) of the Rules of Procedure, since it relied on them for the first time at the hearing.

2267 In any event, the existence and the content of those two internal memoranda in reality confirms the interest which Lafarge showed in the problems raised by Cedest's conduct in Germany, more particularly because of Lafarge's presence within Wossingen.

II - 1051

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-J0/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2268 The m e m o r a n d u m of 6 August 1982, d r a w n up by M r Marichal and entitled 'LC [Lafarge] strategy in Germany "Cedest affair'", consists of three separate parts: A. Forces present, B. Foreseeable movements and C. Proposed action.

2269 In point 3 of part A the author notes that Wössingen 'like others is affected by C.'s [Cedest's] inroads'.

— no ... CK to Cedest if no result

II - 1052

CIMENTERIES CBR AND OTHERS V COMMISSION

Otherwise — we are pleasing an "enemy" (or rather a competitor) of W [Wössingen]

— in refusing those whom W [Wössingen] we must try to manage without it costing us anything

5. Tell Cedest (orally) that we shall not be the inquisitors in the proceedings brought against them in Germany.'

II - 1053

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

less influence on Cedest than L [Lafarge]. Also delivery prices to RMC are below French prices. BC put the ball in Ciments Francais's court'. As the Commission observed in its answer to a written question put by the Court in Case T-39/95, the reference to Ciments Français can only be explained by its involvement in the earlier discussions to which the memorandum refers.

2278 As the Commission correctly observed in its submissions in Case T-39/95, that argument is irrelevant, since w h a t is at issue is not an agreement to share sales in the Palatinate market but pressure brought to bear to prevent the German producers, w h o were irritated by Cedest's conduct, from adopting retaliatory measures against the French regions in which Ciments Français was present, for example eastern France, and the only German region where Ciments Français confirms that it w a s present, Saarland. Moreover, neither in the SO nor in the contested decision did the Commission find that Ciments Français participated in the infringement found in Article 3(3)(a) of the contested decision on the ground that it participated in a national cartel relating to southern Germany which may have been found to exist by the Bundeskartellamt or any other authority.

2279 N o r can Ciments Français find support in the internal Lafarge note concerning a meeting between Cedest, Dyckerhoff and Heidelberger on 17 November 1982 (contested decision, recital 2 2 , paragraph 7; documents 33.126/6582 and 6583) for its argument that it did not participate in bringing pressure to bear on Cedest. Even supposing, as Ciments Français claims, that the note records discussions relating exclusively to Cedest's conduct in the Palatinate, the content of the note has no effect whatsoever on the evidence that Ciments Français participated

II - 1054

CIMENTERIES CBR AND OTHERS V COMMISSION

in bringing pressure to bear on Cedest, since that evidence is in another document, the Lafarge memorandum of 23 June 1982 (contested decision, recital 22, paragraph 4; documents 33.126/6592 to 6596). Furthermore, the note relating to the meeting held on 17 November 1982 does not anywhere mention Ciments Français.

2283 None of the three parties concerned has denied that the meeting took place on 17 November 1982 or that it was present at the meeting. Although they do not dispute the subject-matter of the discussions which took place at the meeting, all three claim that, in spite of that particular subject-matter, it did not constitute conduct contrary to Article 85(1) of the Treaty, either because the discussions consisted purely in the communication of an undertaking given by Cedest to Dyckerhoff and Heidelberger, or because they were not followed up, or because it is evident from the handwritten note that Cedest did not give a favourable response to the requests that it give an undertaking, or again because, since Cedest did not agree to the producers' request to cease its aggressive sales policy in Germany, or even contemplate adopting a course of conduct consistent with that request, the attempt was at the very most unilateral and did not in any event constitute a concerted practice contrary to Article 85(1) of the Treaty, which requires, at least, concerted action between two people.

2284 As indicated in paragraph 2205 above, in its observations of 7 January 1998 concerning access to the Commission file which it had been granted following the measure of 18 and 19 June

II - 1055

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1997, Cedest relied, in order to establish that it had continued to act independently in Germany, in particular, on the content of an internal note of Lafarge of 7 January 1983 (documents 33.126/7514 to 7516), to which it had not been given access during the administrative procedure.

2290 The Commission cannot claim, as it did at the hearing in Case T-38/95, that it also relies on certain passages in the internal Lafarge m e m o r a n d u m of 23 June 1982 (contested decision, recital 2 2 , paragraph 4; documents 33.126/6592 to 6596). T h a t m e m o r a n d u m makes no mention of specific meetings or undertakings given to German producers by Cedest at such

II - 1 0 5 6

CIMENTERIES CBR AND OTHERS V COMMISSION

meetings. The most that can be inferred from the passage worded '... H. Since 1980 we have constantly told our French colleagues not to accept Cedest (81). ...' is that the person making that remark, from Dyckerhoff, was referring to contacts between Dyckerhoff and Cedest in 1981. Apart from the fact that the reference was to events which, even on the assumption that they had actually occurred, did so before the period of the infringement found in Article 3(3)(a) of the contested decision, the Commission made no mention in that decision either of the existence of those contacts between Dyckerhoff and Cedest or of their content.

2291 However, the infringement of Cedest's rights of defence resulting from the infringement of its right to have access to the Commission's file during the administrative procedure, the absence of any evidence that it participated in a concerted practice with Dyckerhoff and Heidelberger on 17 November 1982 and the consequences flowing therefrom do not mean that the findings which the Commission based on the content of the internal Lafarge note referred to in recital 22, paragraph 7, of the contested decision in relation to Dyckerhoff and Heidelberger are unlawful.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2294 It follows that the evidence presented by the Commission in the contested decision (recital 2 2 , p a r a g r a p h 7) justified its conclusion that Dyckerhoff and Heidelberger had infringed Article 85(1) of the Treaty at the meeting with Cedest on 17 November 1982 (contested decision, recital 50, p a r a g r a p h 3, second subparagraph). T h e content of the internal m e m o r a n d u m of Lafarge of 7 January 1983, which contradicts the terms of the m e m o r a n d u m referred to in the contested decision solely as regards Cedest's conduct, does not alter that fact.

D — Concerted action between Lafarge and Dyckerhoff

2295 The Commission finds the existence of concerted action between Lafarge and Dyckerhoff on the basis of three documents: a handwritten internal m e m o r a n d u m dated 23 June 1983 by Lafarge (documents 33.126/6592 to 6596) cited in recital 2 2 , paragraph 4 , of the contested decision, a letter of 28 July 1982 from M r H u m m e l , of Dyckerhoff, to M r Collomb, of Lafarge (documents 33.126/6597 to 6599), cited in recital 22, paragraph 5, of the contested decision, and an internal handwritten note by Lafarge dated 2 September 1982 (document 33.126/6584), cited in recital 2 2 , paragraph 6, of the contested decision. Those three documents lead the Commission to take the view that 'Lafarge and Dyckerhoff endeavoured to prevent any aggressiveness and to establish a climate of harmony between the French and German producers involved in exports' (contested decision, recital 50, paragraph 3).

2300 Similarly, in his letter of 28 July 1982, Mr Hummel, of Dyckerhoff, says: 'And as we are frankly exchanging ideas, I should like to add today that, in our opinion, true cooperation could have positive effects not only as regards your majority holding in Wössingen but especially on Cedest. It should be possible to resolve existing problems through a fundamentally positive attitude on the part of all the participants, in view of the composition of the Cedest and Lafarge administrative boards.'

2304 T h e Court points out that the mere fact that Lafarge acknowledges that its m e m o r a n d u m of 23 June 1982 provides an accurate account of discussions which it had with Dyckerhoff and that those discussions related t o Cedest's conduct in Germany, which is already quite plain from the content of that document, shows that it thereby participated in concerted action contrary t o Article 85(1) of the Treaty. It is irrelevant whether Lafarge complied with the alleged requests

II - 1059

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

made by Dyckerhoff, since the content of the internal memorandum shows that those two producers informed one another of conduct which they envisaged adopting in response to Cedest's own conduct. Subject to proof to the contrary, it must be held that the discussions between those two undertakings influenced their conduct in trade between France and Germany, so that their attitude constitutes a concerted practice within the meaning of Article 85(1) of the Treaty (see the case-law cited in paragraph 2292 above).

2305 It is also necessary t o reject Lafarge's argument that the reference t o ' H o m e market principle O K ' in its m e m o r a n d u m of 2 3 June 1982 concerned the natural markets theory based on the weight of cement. As the Commission correctly pointed out, if the cement market were actually determined naturally because of the weight of the product in question there would be n o need t o ensure compliance with such a rule relating to the natural organisation of the market.

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viewpoint and exercising influence leaves scope for conduct on Lafarge's part which was anti- competitive, since its purpose was to interfere with the way in which another economic operator on the market, Cedest, determined its conduct. Moreover, contrary to what Lafarge would have the Court believe, Mr Marichal did not consider that any initiative by Lafarge against Cedest was then inevitably doomed to fail. On the contrary, it is apparent from the note that Lafarge was prepared, on certain conditions, to take action to implement the steps undertaken against Cedest. The note states: 'I replied that first of all it was absolutely essential to explore all the possibilities of direct negotiations with Cedest and then, as you had already said, to seek a meeting with the Chairman of Cedest, in which you would be prepared to take part if invited by the Chairman of Cedest.'

2311 Lafarge therefore informed Dyckerhoff that it was prepared to intervene, albeit on certain conditions, notwithstanding that it had acknowledged that it was unable t o impose its viewpoint on Cedest.

2312 N o r can Lafarge claim that the content of its note of 2 September 1982 expresses its refusal to participate in a general meeting. Apart from the finding made in the preceding paragraph, it is evident from that note that during the telephone conversation which it describes M r Marichal set out the reasons why in Lafarge's view it was t o o soon to organise such a meeting and why it was first essential to explore all possibilities of direct negotiations with Cedest. It is apparent, therefore, that Lafarge and Dyckerhoff discussed the most appropriate way of settling the dispute provoked by Cedest's conduct. W h a t Lafarge's representative said was not therefore the expression of a categorical refusal to participate in a general meeting of the various parties concerned by Cedest's conduct in Germany.

2316 The Commission infers the existence of concerted action by Dyckerhoff and Ciments Français from t w o documents, an internal Ciments Français m e m o r a n d u m dated 2 5 January 1983 (contested decision, recital 22, paragraph 8; documents 33.126/4254 to 4256) and a summary record d r a w n up on 17 M a y 1983 by Ciments Français concerning a meeting between Dyckerhoff and Ciments Français on 9 and 10 M a y 1983 (contested decision, recital 2 2 , paragraph 9; documents 33.126/4251 to 4253)). Those t w o documents lead the Commission to take the view that 'Dyckerhoff informed Ciments Français of its plans for dealing with the competition from Cedest and its intention not to sell in France' (contested decision, recital 50, paragraph 3, third subparagraph).

2317 Dyckerhoff acknowledges again that discussions between German and French producers took place in 1982 and 1983 but makes no specific comment in relation to the two documents to which the Commission refers (see paragraph 2 2 3 4 above). Dyckerhoff merely observes that the discussions in question cannot constitute a concerted practice, since they led to n o specific result. It analyses the Ciments Français summary record only in connection with the objection alleging an agreement to share the Saarland market. In that regard, Dyckerhoff states that it is not to be inferred from that document that it expressed the intention not to sell in France cement which had been ground at the Ciments Luxembourgeois plant. Point 6 of the summary record merely states that Dyckerhoff explained that it intended to use its grinding quota to supply its customers in the Trier region and in the Eifel.

' 6 . D Y Z [Dyckerhoff] confirmed that talks were nearing completion with CL [Ciments Luxembourgeois] to provide D Y Z with a grinding quota of 100 000 t on CL's [Ciments Luxembourgeois's) grinding plant and for cement deliveries in the Trier region and in the Eifel. These tonnes will not a priori go to Saarland unless there is a definite economic advantage compared with the Goelheim plant which currently delivers to Saarland. The tonnes will never go to France.

7. D Y Z [Dyckerhoff] described its difficulties on the German market following the commercial aggression shown by Cedest on this market, and the measures it had taken and planned to take to deal with the competition.'

2325 Third, it follows from the internal Ciments Français m e m o r a n d u m dated 25 January 1983 recording a visit to Dyckerhoff on 21 January 1983 that both producers discussed Cedest's sales in Germany and Dyckerhoff's sales in Fiance. Item 3, which sets out comments on the items on

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

the agenda of a meeting scheduled for 15 February 1983, states that item 7 of that agenda, entitled 'Franco-German relations' (document 33.126/4259), deals with Cedest's sales in Germany and Dyckerhoff's sales in France ('Item 7. In fact concerns sales by Cedest in Germany and by DYZ [Dyckerhoff] in France (request by Mr Gruner)'). As the Commission observes in its submissions, it is irrelevant that Dyckerhoff took the initiative in discussing Cedest's conduct in Germany with Ciments Français, since that question had by common agreement been included on the agenda of a meeting between the two producers.

2326 T h e content of the m e m o r a n d u m of 25 January 1983 confirms at the very least that Dyckerhoff and Ciments Français intended t o discuss Cedest's conduct in Germany and Dyckerhoff's conduct in France in reaction to Cedest's conduct. It also confirms the anti-competitive nature of the discussions.

2327 It follows that the Commission has established that Dyckerhoff and Ciments Français participated in the concerted action which it describes in recital 5 0 , paragraph 3 , third subparagraph, of the contested decision.

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CIMENTERIES CBR AND OTHERS V COMMISSION

2330 In any event, the arguments whereby Ciments Français, Heidelberger and Lafarge seek to show an error of assessment in the economic analysis of the Franco-German market in order to dispute their participation in the concerted practices found in Article 3(3)(a) of the contested decision must be rejected, since the various concerted practices and the participation of the various applicants concerned were established on the basis of documents whose probative value does not need to be considered in the light of an economic analysis of the relevant market (see paragraphs 263 and 264 above).

General regulation of cement supplies between France and Germany

2311 Dyckerhoff (T-35/95), SFIC (T-36/95), Cedest (T-38/95), Ciments Français (T-39/95), Heidel- berger (T-42/95), Lafarge (T-43/95) and BDZ (T-48/95) deny that an agreement on the general regulation of cement supplies between France and Germany was concluded, as the Commission asserts in the contested decision (recitals 22, paragraph 10, and 50, paragraph 3, fifth subparagraph), or that they participated in that agreement.

2332 Before the Court assesses the merits of their arguments it is appropriate to set out the allegations which the Commission makes in the contested decision.

2335 The Commission thus identifies first the conclusion in 1984 of an agreement on the general regulation of supplies between France and Germany, then the possibility of renewing the agreement in 1986 and, last, the existence of the agreement after 1986. In the operative part of the contested decision (Article 3(3)(a)) it merely states that the parties concerned infringed Article 85(1) of the Treaty 'from 23 June 1980 to at least 30 September 1989 by participating in agreements and concerted practices involving the regulation of cement supplies from France to Germany and from Germany to France'.

A — Conclusion of an agreement in 1984

2336 All the applicants concerned deny having participated in the conclusion of an agreement in 1984. Dyckerhoff, Ciments Français, Heidelberger and Lafarge criticise the Commission in particular for using a document, the letter of 2 2 September 1986 from M r Laplace to M r Schuhmacher (contested decision, recital 2 2 , paragraph 10), from which, they maintain, it is impossible to ascertain the content of the alleged agreement concluded in 1984 or to identify the parties which concluded it.

2337 It should be pointed out that M r Laplace, w h o drafted the letter, was both Chairman of Ciments Français and Chairman of SFIC, while M r Schuhmacher, to w h o m it was sent, was both Chairman of Heidelberger and Chairman of B D Z (contested decision, recital 22, paragraph 10). In the contested decision the Commission considered the letter against the general background revealed by the other documents referred to in recitals 22 and 50.

2340 The criticisms made by the four applicants named in paragraph 2336 above provide no grounds for holding the finding by the Commission to be invalid. In the contested decision the Commission established the existence of an agreement on the general regulation of cement supplies between France and Germany and the purpose of that agreement and also identified the parties to that agreement.

2341 First, it should be observed that although there is no document formally entitled 'agreement on the general regulation of supplies between France and Germany' or any single item of evidence of the organisation of a special meeting during which all the parties concerned expressed their views, the probative force of the documentary evidence put forward by the Commission in the contested decision must be evaluated in the light of the events which marked relations between the French and German industries before 1984, the reality and anti-competitive nature of which have already been established (see paragraphs 2226 to 2 3 3 0 above). It is settled law that an agreement within the meaning of Article 85(1) of the Treaty does not necessarily have to be recorded in writing (Tepea v Commission, cited in paragraph 2061 above, paragraph 41). For there to be an agreement, it is sufficient for the undertakings or associations of undertakings in question to have expressed their joint intention to conduct themselves in the market in a particular way (see the case-law cited in paragraph 1010 above). It is not therefore essential to determine the precise date on which such an agreement was concluded, once the existence of a concurrence or wills is established on the basis of documentary evidence.

I believe, if we look at the situation facing us in 1984, that what we discussed at those meetings has worked well.

The second problem concerns the future. Ted Brenke expressed during our last meeting the opinion that, if we were to renew our agreement, there would be a demand from the German side that the gap existing since 1984 between French and German deliveries be reduced. I told him that, if this demand were to be maintained, I saw very little hope in our reaching a further agreement. As you remember, there was no logical and, even less, ethical justification for this gap, which was not, in fact, the result of bilateral discussions between French and German interests, but resulted from a far more complicated pattern of discussion which included conflicts between the French parties, and would probably have included conflicts on the German side had we not agreed then to leave Wössingen aside for the time being. I do not believe that we can have so many people agree on something new unless they are under pressure, and the very purpose of a renewal is not to let such a pressure develop ...'

2345 In the light of those factors, the Commission was entitled to take the view that at that time there still existed an agreement, concluded in 1984, between the French industry and the German industry on the regulation of cement supplies between France and Germany and that its renewal was contemplated when the letter was drafted. It is therefore necessary to reject the argument of Dyckerhoff and Heidelberger that the content of the letter demonstrates that the agreement concluded in 1984 n o longer existed in any event on 22 September 1986.

2347 SFIC claims, however, that the memorandum of 15 March 1984, which is merely cited in a footnote in the section of the contested decision devoted to the Franco-German agreement, has no connection with the internal memorandum of 23 June 1982 by Lafarge (contested decision, recital 22, paragraph 4; documents 33.126/6592 to 6596) or with the Franco-German agreement in general. It reaches that conclusion on the basis of a contradiction which it finds between the conclusions of the meeting of 19 March 1984 set out in the notes on the meeting drawn up on 2 April 1984 (recital 19, paragraph 10; documents 33.126/11733 to 11737) that 'exports had tended to shrink' and the trends registered in the statistics, otherwise used by the Commission to characterise the Franco-German agreement (recital 22, paragraph 10, in fine), according to which cement exports from Germany to France had increased between 1985 and 1989.

2348 First, the interpretation of the actual wording of the contested decision advocated by SFIC cannot be accepted. The Commission refers to the m e m o r a n d u m of 15 March 1984 not only in footnote 100 but also in recital 50, paragraph 3, fourth subparagraph, of the contested decision.

2349 Second, it must be pointed out that the contradiction complained of by SFIC results from an abbreviated presentation of the matters in the contested decision. Since only exports from France to Germany are seen in the m e m o r a n d u m to the Chairman dated 15 March 1984 as being problematic in regard to the rule on non-transhipment to internal markets in the Cembureau agreement, the conclusion reached in the notes on the meeting drawn up on 2 April 1984 that 'exports had tended to shrink' can refer only to exports from France to Germany. Consequently, that conclusion is not at variance with the trend which the Commission noted in the statistics referred to in recital 2 2 , paragraph 12, of the contested decision, to the effect that exports from Germany to France h a d increased between 1985 and 1989.

2352 Similarly, the fact that French exports to Germany were not mentioned as a 'hot spot' in the notes dated 2 April 1984 on the meeting of Cembureau H e a d Delegates held on 19 M a r c h 1984 (contested decision, recital 19, paragraph 10), whereas they were referred to as such in the m e m o r a n d u m to the Chairman dated 15 M a r c h 1984 (contested decision, recital 19, paragraph 9), does not mean, as Ciments Français maintains, that the conclusion reached by the Cembureau H e a d Delegates at their meeting on 19 M a r c h 1984 that pressure from inter- member trade had slackened considerably through improved bilateral contacts does not concern Franco-German relations. Having regard to the contacts between the French and German industries, to which the letter of 22 September 1986 unequivocally attests (see paragraphs 2 2 4 2 and 2 2 4 3 above), and the reference to French exports to Germany in the m e m o r a n d u m of 15 M a r c h 1984, the fact that there is no reference to Franco-German relations in the notes on the meeting is of such a nature as to show that the Cembureau H e a d Delegates considered that they no longer presented a problem and were therefore no longer a 'hot spot'.

2353 Lafarge cannot infer from the reference to French exports to Germany in the m e m o r a n d u m to the Chairman dated 15 M a r c h 1984 that there was disagreement which showed that the agreement allegedly concluded in 1984 did not exist. It cannot be ruled out that the agreement was concluded in 1984 after the H e a d Delegates meeting on 19 M a r c h 1984. Furthermore, even on the assumption that it was concluded before that meeting, it cannot be ruled out that the disagreement or the problem remaining between the French and German industries was the result of the German desire to reduce the gap between the volumes of cement exported by the French producers and the German producers.

2356 In reality there is no contradiction following from the matters which, according to Dyckerhoff and Heidelberger, rule out the conclusion of an agreement in 1984. First, it follows from the letter of 22 September 1986 that it was the German producers' desire to reduce the gap between French imports into Germany and German imports into France that led Mr Laplace to talk of renewing the agreement. Then, as indicated in paragraphs 2347 to 2353 above, the fact that Franco-German deliveries were discussed at the Cembureau Head Delegates meeting on 19 March 1984 provides further evidence that negotiations took place between the French and German industries and that an agreement was concluded between them, since the documentary evidence submitted by the parties shows that those deliveries were not subsequently discussed within Cembureau. Last, Dyckerhoff is confusing two different matters: first, the single and continuous infringement involving the regulation of cement supplies from France to Germany and from Germany to France between 23 June 1982 and 30 September 1989, which includes all the concerted practices and agreements established by the Commission in recital 50, paragraphs 1 to 4, of the contested decision (see paragraph 2170 above) and, second, the agreement having the same purpose concluded in 1984, referred to more specifically in recital 50, paragraph 3, fifth subparagraph, of the contested decision. Since the latter agreement is just one of the constituent elements of the single and continuous infringement it is not contradictory to find that it commenced on a different date from that on which the 1984 agreement is found to have commenced.

2358 N o n e of the evidence adduced by the applicants permits the conclusion that the object of the agreement was limited to areas other than Saarland. In that regard, Ciments Français cannot rely on a distinction between the object of the various constituent elements of the infringement referred to in Article 3(3)(a) of the contested decision, the alleged agreement to share the Saarland market, the concerted practices relating to Cedest's sales in the Palatinate and the agreement concluded generally. It is sufficient to find that all those elements concern the sharing of the market and that no distinction between Saarland and the other frontier areas concerned is apparent from the wording of the letter of 22 September 1986. Any geographical distinction between the first element, the alleged agreement to share the Saarland market, and the second, the concerted practices relating to Cedest's commercial conduct in Germany, is not justified in terms of the evidence of the existence of an agreement involving the general regulation of cement sales between France and Germany, having regard to the wording of the letter of 22 September 1986.

2359 Accordingly, there is no need to distinguish what the parties had in mind for Saarland from what they intended for the other areas in the context of that agreement involving the general regulation of the markets. It follows that the Commission was entitled to take the view that the 1984 agreement had as its object the sharing of markets and the restriction of cross-frontier flows of cement between France and Germany (contested decision, recital 50, paragraph 4, first subparagraph). In any event, even on the assumption that the allegations that the agreement did not concern Saarland are well founded, it is none the less the case that such an agreement still involved the regulation of sales between France and Germany.

2362 Third, it is necessary t o identify the parties to that agreement.

2363 As regards, first, the t w o national associations, SFIC and BDZ, it has already been found that the letter of 22 September 1986 indicates at a number of points that they participated in the agreement (see paragraphs 2 2 4 2 and 2 2 4 3 above).

2364 Furthermore, SFIC has nothing specific t o say about that letter from its Chairman to the Chairman of BDZ.

2365 BDZ, on the other hand, puts forward a number of arguments in order to show that it did not participate in the agreement concluded in 1984. It relies on the fact that there is n o copy of the fetter in its o w n files and that its Director General, M r Steinbach, only became aware of the letter upon reading the SO.

2366 The Commission rightly observes in the contested decision (recital 22, paragraph 18) that, as the letter was sent to the Chairman of BDZ, M r Schuhmacher, there is no need to determine whether there was a copy of the letter in M r Steinbach's files or the point at which he became aware of it. It is sufficient to establish that the writer of the letter, referring to his capacity as Chairman of SFIC, considered that M r Schuhmacher represented the German cement industry's interests in its relations with the French cement industry, which could only be because of M r Schuhmacher's then position as head of B D Z . It is also significant that the letter uses

II - 1 0 7 2

2368 As regards the m e m o r a n d u m to the Chairman dated 15 March 1984 (contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729) concerning French exports to Germany, it was intended to prepare for a meeting of Cembureau Head Delegates in which SFIC and BDZ participated as members of Cembureau representing the interests of the cement industries of their countries. The Commission was therefore right to find in the contested decision that SFIC and BDZ had participated in the agreement concluded in 1984 and which was still in force in 1986.

2369 BDZ questions how it could have participated in an agreement from 23 June 1982, when in the contested decision the Commission alleges the existence of concerted practices between 1982 and 1984 and relies on the finding of an agreement only from 1984.

2370 Like Dyckerhoff (see paragraph 2356 above), BDZ confuses the single and continuous infringement involving the regulation of cement supplies from France to Germany and from Germany to France between 23 June 1982 and 30 September 1989, which embraces all the concerted practices and agreements identified by the Commission in recital 50, paragraphs 1 to 4, of the contested decision, with the agreement having the same object concluded in 1984, which is referred to more specifically in recital 50, paragraph 3 , fifth subparagraph, of the contested decision and is just one of the elements constituting the single and continuous infringement.

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2374 Ciments Français's participation in the agreement involving the general regulation of supplies also forms part of the extension of its conduct before 1984, which consisted inter alia in bringing pressure to bear on Cedest and in taking part in bilateral concerted action with Dyckerhoff (see paragraphs 2252 to 2 2 8 1 and 2 3 1 6 to 2328 above).

2375 As regards Lafarge, it must be pointed out that it is a member of SFIC and that the Chairman of SFIC, M r Laplace, expressly stated in his letter of 2 2 September 1986 that in order to take the least decision concerning the rights of the members of SFIC he would have to refer to their leaders (fifth paragraph of the letter, referred to in paragraph 2373 above). T h a t shows that, having regard to SFIC's internal decision-making procedure, Lafarge was directly involved in the conclusion of the agreement in 1984. N o r has Lafarge relied on any document to show that it abandoned the agreement concluded in 1984. In that regard, contrary to w h a t it claims, the reference to Wössingen in the letter of 22 September 1986 cannot be presented as evidence that Lafarge did not participate in the agreement concluded in 1984. Although it is apparent from the sixth paragraph of that letter that at the time when the agreement was concluded a decision had been taken not to determine Wössingen's case, that does not mean that Lafarge did not participate in the agreement. The only inference that can be d r a w n is that Wössingen's position in Germany still posed a problem in 1984. Lafarge itself stated in its submissions that the only reference to Wössingen in the Bundeskartellamt's decision of 12 September 1988 concerning an

2378 Those arguments must be rejected.

2379 As regards the alleged infringement of Lafarge's rights of defence, it is sufficient to observe that the Commission made specific reference in the part of the SO dealing with the Franco-German agreement (paragraph 12, p. 28) to all the matters set out in the contested decision, recital 22, paragraph 1 1 , and that all the documents referred to on that occasion were in the Box (see paragraph 95 above).

2380 As regards the content of the Bundeskartellamt decision, it should be observed that the decision is referred to in recital 22, paragraph 11, of the contested decision. According to footnote 104, however, which is included in that paragraph, the facts which paragraph 11 describes 'are not part of the objections of the Commission [and] are referred to solely in order to present a fuller picture of the relationships between the various actors'. Irrespective of whether or not the Commission used the content of the Bundekartellamt's decision to establish Lafarge's participation in the infringement referred to in Article 3(3)(a), it suffices to find that the facts set out in recital 22, paragraph 11, of the contested decision were explicitly mentioned in point 12 of the SO (Chapter 2) and that the documents relied on by the Commission in that

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

connection were all in the Box (see paragraph 95 above). In those circumstances, there is no question of an infringement of Lafarge's rights of defence in that regard.

2384 As regards Cedest, it is clear that there are already grounds for annulling Article 3(3)(a) of the contested decision in so far as it finds that it participated in the first two constituent elements of the infringement in question, namely the alleged agreement to share the Saarland market and the concerted practices between 1982 and 1984 (see paragraphs 2225 and 2288 above). According to the contested decision (recital 50, paragraphs 1 to 3), it was those first two elements which led to the conclusion of an agreement in 1984, which is the only other element constituting the infringement referred to in Article 3(3)(a). The Commission cannot therefore find that Cedest participated in the third element, since its participation in the first two elements cannot be regarded as established, for both procedural and substantive reasons (see paragraphs 2211 and 2284 to 2290 above), and there is no direct evidence that Cedest participated in the agreement concluded in 1984. Cedest's membership of SFIC cannot in itself suffice in that regard, since SFIC also includes other members which were not identified by the Commission as parties to the agreement concluded in 1984.

2385 It follows that in the contested decision the Commission has failed to establish to the requisite factual and legal standard that Cedest participated in the infringement referred to in Article 3(3)(a). That provision must therefore be annulled in so far as it relates to Cedest.

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CIMENTERIES CBR AND OTHERS V COMMISSION'

2386 As regards Dyckerhoff, it is apparent from the letter of 22 September 1986 that since 1984 one of its representatives, Mr Lose, had participated in periodic meetings with the Chairman of SFIC, Mr Laplace, and Mr Brenke, of Heidelberger (contested decision, recital 22, paragraph 10, first subparagraph). As in the case of Ciments Français and Lafarge (see paragraphs 2374 and 2383 above), Dyckerhoff's participation in that agreement involving the general regulation of supplies is the continuation of its pre-1984 conduct, which consisted inter alia in taking part in bilateral concerted actions with Heidelberger, with Lafarge and with Ciments Français (see paragraphs 2282 to 2328 above).

B — Pursuit of the agreement after 1986

2330 Dyckerhoff, Ciments Français, Heidelberger and BDZ complain of the lack of proof that the agreement was renewed, a lack of proof acknowledged by the Commission in the contested decision (recital 22, paragraph 10, third subparagraph): The Commission does not have any proof concerning the renewal of the agreement ...'. The applicants consider that since the Commission had no proof that the agreement was renewed it could not then rely (same paragraph) solely on an analysis of the statistics exchanged by the national associations in

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

question to establish that the agreement was renewed. They claim that there is at least an alternative economic explanation to the findings deriving from those statistics.

2391 However, although it is clear from the contested decision, that in order to establish that the parties to the 1984 agreement intended to renew it, the Commission once again refers to the letter of 22 September 1986 (see recital 50, paragraph 3, fifth subparagraph: 'The letter of 22 September 1986 refers to ... the possibility of renewing the agreement'), the Court finds that, contrary to what is suggested by the applicants, the Commission did not accept the existence of an agreement renewed in 1986 or later as part of the infringement of Article 85(1) to which it refers in Article 3(3)(a) of the contested decision.

2393 Although the Commission does not have any proof that the agreement concluded in 1984 was renewed and acknowledges that fact in the contested decision, the parties' intention to improve the agreement arrived at in 1984 and still in force in 1986 is clearly apparent from the passages from the letter of 22 September 1986 (contested decision, recital 22, paragraph 10; documents 33.126/3574 to 3576) quoted in paragraph 2 3 4 4 above. The meetings between M r Laplace, M r Lose and M r Brenke and the need to have recourse to arbitrators (Schiedsrichter), and also the ' G e r m a n side's' desire to reduce the gap existing since 1984 between French and German deliveries, show that the parties then wished to continue their agreement on the regulation of sales between France and Germany, if necessary by refining the scope of their concurrence of wills in order to settle all the problems encountered in the Franco-German frontier area.

2394 Dyckerhoff cannot claim that the letter of 22 September 1986 does not describe any discussion having as its object the renewal of an agreement. The sixth paragraph of the letter refers on an number of occasions to the renewal of an agreement ('if we were to renew our agreement', 'very little hope in our reaching a further agreement' and 'the very purpose of a renewal is not to let such a pressure develop').

2395 Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and B D Z claim that, having regard to the judgment in Woodpulp II, cited in paragraph 106 above (paragraph 71), the analysis of the statistics relating to deliveries between France and Germany could not serve to demonstrate

2399 In its submissions in Case T-48/95 the Commission confirmed that it had concluded from the changes in the statistics that the agreement had continued beyond 1986.

2400 The Commission therefore puts forward two different pieces of evidence to demonstrate that the concurrence of wills which materialised in 1984 and still existed in 1986, the purpose of which was to regulate cement sales between France and Germany, survived at the very least until 30 September 1989: the findings from the statistics set out in recital 22, paragraph 12, and the Heidelberger m e m o r a n d u m of 12 August 1987 (contested decision, recital 2 2 , paragraph 10).

2401 It is necessary, first, to assess the evidential value of the m e m o r a n d u m of 12 August 1987.

2402 Heidelberger cannot claim that the complaint alleging the continuation of the agreement in 1987 was not made against it in the SO. There is nothing in the SO to indicate that the Commission considered that the concurrence of wills found to exist in 1984 no longer existed in

II - 1 0 7 9

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/9J, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2405 First, the Commission used the m e m o r a n d u m of 12 August 1987 not to demonstrate the existence, the continuation or the renewal of the agreement concluded in 1984 but rather to show that the Franco-German discussions referred to in the letter of 2 2 September 1986 had continued. Thus the Commission states in the contested decision (recital 2 2 , paragraph 10, third and fourth subparagraphs): 'According to an internal Heidelberger m e m o r a n d u m of 12 August 1987 (document 33.126/3573), the Franco-German talks continued in 1987: "I agreed with M r Laplace to discuss, before his term of office in the French cement industry came to an end, a number of well-known unresolved matters. You will meet him with the Cembureau delegation that is leaving for Russia. I should like to discuss with you, before you meet him, the content of your talks with him. Annex". The Annex is the letter of 22 September 1986 referred to above.' The reference to 'well-known ... matters' which were 'unresolved' and the fact that the letter of 2 2 September 1986 is annexed to the m e m o r a n d u m show that the 'matters' concerned relate to the possible renewal of the agreement with which the letter deals. According to the content of the letter, the parties to the agreement wished to improve it and extend its scope to the regulation of certain matters left in abeyance w h e n it was concluded in 1984, such as the reduction of the gap between the volumes of deliveries in both countries. The fact that such questions still subsisted therefore shows that the concurrence of wills which came into existence in 1984 and which was again referred to in the letter of 22 September 1986 still existed in August 1987.

2410 It is true that in March 1984 exports from France to Germany were still regarded as a 'hot spot' (see m e m o r a n d u m to the Chairman dated 15 March 1984 (contested decision, recital 19, paragraph 9; documents 33.126/11728 and 11729)); that the letter from the Chairman of SFIC and of Ciments Français to the Chairman of BDZ and of Heidelberger dated 22 September 1986 (see paragraphs 2343 and 2344 above) indicates that the German industry concerned expressed the desire to reduce the gap between the volume of French exports to Germany and that of German exports to France; and that none of the applicants concerned disputes the reality of the trend towards the reduction of that gap between 1 January 1985 and 30 September 1989 as a result of an increase in German exports to France, a point confirmed by the data reproduced in recital 22, paragraph 12, of the contested decision. However, it must be emphasised that at the hearing Ciments Français submitted an alternative economic explanation which the Commission, contrary to what it maintains in the contested decision (recital 22, paragraph 15) and in its submissions, did not succeed in refuting.

2411 Ciments Français explained that the reasons for a trend towards a reduction in the gap were the greater expansion of the French regional market and the higher level of French prices in comparison with German prices.

2412 In rejecting the explanation that cement producers found French prices more attractive in 1986, 1987 and 1988 the Commission presented a table based on documents setting out the prices communicated to Cembureau by BDZ (documents 33.126/15161 and 15163) and by SFIC (documents 33.126/15168 to 15170) from which it is clear that German prices were higher than French prices. The Commission concluded (contested decision, recital 22, paragraph 15, sixth subparagraph): '... French prices were not at all more attractive than German prices in the period 1986-88. On the contrary, the price difference is all the greater considering that the German PZ35 cement has a lower resistance grade than the French CPJ45 and CPA55R grades.' The Commission therefore concluded (recital 22, paragraph 15, final subparagraph): 'It is clear that the explanations given by Ciments Français are not supported by the facts.'

2414 It follows from documents 33.126/15161 to 15163 and 15168 to 15170, which are referred to in the contested decision (recital 22, paragraph 15), that, as Ciments Français emphasises, the prices communicated to Cembureau by BDZ and SFIC are not comparable as such, since the former are delivered prices ('frei site' or 'frei station bundesgebiet') and the latter 'ex-works prices'. It is also clear from a table presented by Ciments Français (annex 30 to the application in Case T-39/95) that the expression 'frei station bundesgebiet' does not take account of the ex- works price. That table, which originated in a Cembureau database and is dated May 1994, sets out the prices for Germany for the years 1979 to 1993. It refers to 'delivered on site' or 'delivered to site' prices which, for the months and years referred to in documents 33.126/15161 to 15163, correspond to the prices in the table in recital 22, paragraph 15, of the contested decision. The latter table clearly contains an error, since it describes the prices indicated in documents 33.126/15161 to 15163 as 'German average gross ex-works price communicated by BDZ only for PZ 35'. As such, the table therefore has no evidential value.

2415 Ciments Français also submitted other documents in order to establish, on the basis of a comparison between delivered prices at various places, that French prices were higher than German prices for the years 1986, 1987 and 1989 (annex 30 to the application in Case T-39/95). However, the Commission did not discuss the content of those documents, but merely referred to the contested decision.

2419 For the remainder, Heidelberger cannot claim that the Commission reversed the burden of proof by requiring it to show that it did not participate in any of the elements of the infringement referred to in Article 3(3)(a) of the contested decision. Nor can it rely on the existence o f only a small number of documents referred to in the contested decision that concern it. The Commission has shown, on the basis of documents, that Heidelberger participated in the infringement in question. The fact that Heidelberger considers that only tne letter of 22 September 1986 and its internal m e m o r a n d u m of 12 August 1987 concern it is not of such a nature as to undermine the evidence that it participated in the infringement in question. The precise number of documents used to prove its participation is not decisive, since it is only their evidential value which is relevant. Furthermore, other documents, such as the internal Lafarge m e m o r a n d u m referring to the meeting on 17 November 1982 between Dyckerhoff, Heidelberger and Cedest (see paragraphs 2282 to 2 2 9 4 above), establish Heidelberger's participation in the infringement referred to in Article 3(3)(a).

2420 As a result of this assessment of the arguments put forward by the applicants referred to in Article 3(3)(a) of the contested decision, it has been determined whether or not each of the constituent elements of the infringement referred to in that provision has been established as against those parties. However, a number of them have specifically disputed the duration of their participation in the infringement.

2424 Before assessing the merits of those various arguments, it is appropriate to consider the passages in the contested decision which deal with that point.

2425 It is apparent from the contested decision that the question of the duration of the infringement referred to in Article 3(3)(a) is linked to the question of its single and continuous nature. The Commission states (recital 50, paragraph 4): 'In view of the fact that the agreement on the sharing of the Saarland market, the concerted practices involved in the pursuit of a solution on the limiting of sales by Cedest in Germany apart from the Saarland, and the 1984 agreement referred to in the letter of 22 September 1986 all had as their object the sharing of markets and the restriction of cross-frontier flows of cement between France and Germany, the Commission takes the view that the agreements and concerted practices may be deemed to be a single and continuous infringement. In addition, even though initially SFIC, B D Z and Lafarge were not parties to the agreement on the Saarland, they accepted it as from 23 June 1982, i.e. as from the time when they acted to extend the agreement on the Saarland to other German Länder and to fit the agreement into the broader framework of the regulation of trade flows between France and Germany. The single and continuous infringement relating to the restriction of cross- frontier flows between France and Germany was committed, from 23 June 1982 to 30 September 1989, by SFIC, Cedest, Ciments Français, Lafarge, BDZ, Dyckerhoff and Heidelberger.'

2430 Moreover, the participants in those aspects of the unlawful conduct knew, or ought to have known, that it was part of an overall plan in pursuit of that common unlawful object.

2431 The criticisms put forward by Ciments Français must therefore be rejected. Even if it were established, the mere fact, on which that undertaking relies, that the various elements of the single infringement found by the Commission did not nave a wholly similar geographical scope does not show that those elements did not have an identical object, namely the regulation of flows of cement between France and Germany.

2432 T h e participation of Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and BDZ in that single infringement is established, as all those applicants participated in one or other of the concerted practices established by the Commission and also in the 1984 agreement. The fact that Article 3(3)(a) of the contested decision must be annulled in so far as it finds that Cedest participated in an infringement of Article 85(1) of the Treaty does not affect that finding.

2433 Consequently, the Commission has demonstrated that the unlawful acts referred to in Article 3(3)(a) whose existence it has duly shown, were sufficiently alike in terms of parties involved and subject-matter to be classified as a single infringement.

2434 When assessing the continuous nature of the infringement in the case of Ciments Français, Heidelberger and Lafarge, the Court must have regard to the various unlawful acts which have been validly attributed to them and the related dates.

2437 Lafarge participated with Ciments Français in a concerted practice whose object was to bring pressure to bear on Cedest and which was established on the basis of a document dated 23 June 1982 (see paragraphs 2 2 5 2 to 2 2 8 1 above). It also participated with Dyckerhoff in a concerted practice, established on the basis of three documents dated 23 June, 28 July and 2 September 1982 (see paragraphs 2 2 9 5 to 2 3 1 5 above). From 1984 to 12 August 1987 it participated in the agreement involving the general regulation of cement supplies between France and Germany (see paragraphs 2 3 3 2 to 2418 above). The continuous nature of its participation in the single infringement is therefore established from 23 June 1982 to 12 August 1987.

2438 Dyckerhoff also pleads infringement of Article 190 of the Treaty. However, it does not allege any failure to state reasons or any inadequacy of the reasons for the passages of the contested decision which deal with the Franco-German agreement. Its plea must therefore be rejected.

2439 It follows from all the foregoing that the Commission did not infringe either Article 85(1) or Article 190 of the Treaty in finding, to the extent determined in paragraphs 2 1 7 2 to 2438 above, that Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and B D Z participated in the infringement referred to in Article 3(3)(a) of the contested decision.

2442 SFIC and Ciments Français also dispute, in the context of the arguments specifically devoted to the legality of Article 3(3)(a), the existence of a link between that infringement and the Cembureau agreement. T h a t argument will be dealt with in the context of the examination of the single nature of the infringement referred to in Article 1 of the contested decision (see paragraphs 4 0 4 5 t o 4048 and 4 1 5 2 t o 4 1 5 4 below).

2443 As well as disputing the existence of a Franco-German agreement, Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and B D Z also complain of an infringement of their rights of defence owing to the fact that they were denied access during the administrative procedure to documents in the Commission's file which might have proved useful to their defence.

Access to the file

2444 Only Lafarge (T-43/95) maintains that it did not have access, prior to the adoption of the contested decision, to incriminating evidence relating t o the infringement found in Arti- cle 3(3)(a). In its observations of 10 February 1997 it maintains that the documents from the German Bundeskartellamt file relating to its decision of 12 September 1988 (documents 3 3 . 1 2 6 / 2 0 4 8 1 , 20418 t o 2 0 4 4 3 , 2 0 4 1 6 , 2 0 4 1 7 , 2 0 4 9 2 t o 2 0 4 9 5 , 2 0 4 9 7 to 20499 and 20384 to 20394) were used by the Commission to establish an infringement. At the hearing in Case T-43/95 Lafarge stated, in answer to a question put by the Court, that the infringement in question was the cartel on the cement market in South-West Germany which was referred to in the chapters of the SO dealing with the German market (chapters 6 and 16).

2447 Dyckerhoff claims that the documents which it was able to consult following the measures of 2 October 1996 and 18 and 19 June 1997 confirm that the relations between the German and French producers and their national associations, B D Z and SFIC, do not give rise to any legal objection. In its observations of 7 February 1997 it observes that documents 33.126/14861 to 14874, 1 4 8 8 3 , 14802 to 14804, 19264 and 1 4 8 0 1 , which consist of the minutes of internal meetings of the French association and the annexes thereto, have no connection with the objections made against it but show that Franco-German relations consisted of contacts to which there was no objection in law, so that acquaintance with their content might have proved useful to the defence of its interests in the administrative procedure. In its observations of 5 January 1998 it again refers to documents 33.126/15443 to 15453 (record of w h a t was said at a meeting between the delegations of German and French cement producers on 6 and 7 December 1983), 6 0 4 4 to 6 0 4 7 (letter from SNFCC dated 17 April 1989 communicating information relating to cement imports from the Federal German Republic for 1988 and the first two months of 1989) and 14623 (table of cement imports from the same M e m b e r State for 1989), the content of which confirms that the German and French cement producers merely engaged in a general exchange of views.

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CIMENTERIES CBR AND OTHERS V COMMISSION'

2450 First, it maintains that the chapters of the SO on Germany would have enabled it to show that the Commission reached opposite conclusions concerning the existence of a Franco-German agreement and the identity of the parties to that agreement, depending on whether it looked at them from a national or an international viewpoint. Ciments Français points out that the chapters of the SO in question refer to the existence of three cartels connected with southern Germany but do not mention its name or that of its subsidiary, SZG. In that regard, it emphasises that it is the only French cement producer concerned by the objection relating to the Franco-German agreement which is not referred to in the German chapters of the SO. It alleges that the passages in the SO contradict the very documents on which the Commission relies as against it in connection with the alleged Franco-German agreement, more particularly the Vicat memorandum of 22 July 1982 (contested decision, recital 22, paragraph 1) and the Lafarge memorandum of 23 June 1982 (contested decision, recital 22, paragraph 4). In any event, the mere existence of a chapter of the SO devoted to Germany and referring to an alleged Franco- German agreement indicates that it was essential that Ciments Français had access to all the objections and documents relating to that alleged agreement.

2452 Second, Ciments Français observes that the Bundeskartellamt decision of I June 1989 concerning three cartels in southern Germany (annex 2 to its observations; pp. 176 to 2 0 9 of the 'German file') also fail to mention its name or that of its subsidiary, SZG, and do not refer to the existence of a Franco-German agreement whose object was to share the Saarland market or an agreement aimed at restricting Cedest's exports.

2453 That argument must be rejected for the reasons stated in paragraph 2 4 5 1 above.

2454 Third, Ciments Français submits that a number of documents make it possible t o place the letter dated 2 2 September 1986 from M r Laplace, Chairman of SFIC and of Ciments Français, to Mi-

II - 1089

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2456 N o r do the other documents on which it relies establish an infringement of its rights of defence during the administrative procedure. First, they are not susceptible of shedding n e w light on the content of the letter of 2 2 September 1986 (contested decision, recital 2 2 , paragraph, 10) with regard t o the context in which that letter w a s drafted as described in those documents. A l l the documents in question were drafted months, or even years, after the letter of 2 2 September 1986. N e x t , it is apparent from the SO (Chapter 2, paragraph 12) that the Commission h a d observed that the French and German associations had been exchanging statistics for several years. Last, the content of those documents does n o t shed a different light on the documents referred t o in the SO (Chapter 2 , paragraph 12) and in the contested decision (recital 22), which show that relations between the French and German industries were n o t limited solely t o the innocent exchange of statistics between the t w o national trade associations, as, according t o Ciments Français, the documents t o which it h a d access following the measure of organisation of procedure of 2 October 1996 establish. It follows that Ciments Francais's third argument must also be rejected.

2457 Fourth, Ciments Français claims that the documents relating t o the Hispano-Portuguese agreement confirm its argument that the fact that it is accused of having allegedly participated in actions t o limit exports between France and Germany is incompatible with the treatment of the situation in Spain and Portugal and reveals discrimination in the procedure. It also observes that only the Spanish trade association is held liable in the contested decision in connection with the Hispano-Portuguese agreement, although in the SO the Commission maintained that the Spanish trade association and representatives of certain Spanish producers had participated in meetings aimed at overcoming the problems posed by Portuguese cement exports t o Spain. By way of example, it refers t o documents 33.322/1410 t o 1412 and 1400, also referred t o in

2459 In its observations of 21 November 1997 Ciments Français put forward eight documents on the basis of which it sought to establish that it did not participate in the Franco-German agreements and concerted practices, regarded as a single and continuous infringement, referred to in Article 3(3)(a) of the contested decision. It refers to a letter from Cedest to Lafarge dated 4 January 1979 describing the difficulties encountered in the relations between Cedest and Wössingen or between Cedest and Lafarge (documents 33.126/7505 to 7507); an internal Lafarge m e m o r a n d u m dated 30 June 1982 which also describes the deterioration of relations between Cedest and Wössingen and between Cedest and Lafarge and the anxiety of the large German cement producers (documents 33.126/7038 to 7040); an internal Lafarge memor- a n d u m dated 6 August 1982, which refers to Lafarge's strategy in Germany and to the Cedest affair and mentions, in particular, the forces present and the proposals for action (documents 33.126/7522 to 7524); an internal Lafarge m e m o r a n d u m dated 7 September 1982 which shows that the problems caused by Cedest's deliveries to Germany still concerned the same protagonists in France and in Germany (documents 33.126/6686 and 6687); a telex from Lafarge dated 26 October 1982 referring to the commitments given by Cedest to Wössingen in the past (documents 33.126/7110); and an internal Lafarge m e m o r a n d u m dated 7 January 1983 referring to discussions between Heidelberger and Dyckerhoff on the situation in Rheinland-Westphalia and describing a meeting between themselves and Cedest (documents 33.126/7514 and 7516).

3 3 . 1 2 6 / 7 4 0 8 to 7412). Ciments Français also observes that an internal Heidelberger m e m o r a n d u m dated 22 February 1983 describes Heidelbergern proposals to penetrate France in retaliation against Cedest and shows the intensity of competition between French and German producers at a time when the Commission claims that those producers were combining to share the market (document 33.126/3477). Those various documents far from corroborate the documents presented by the Commission, in particular the Vicat m e m o r a n d u m dated 22 July 1982 (contested decision, recital 22, paragraph 1), which, moreover, comes from an undertaking which, according to the Commission, is not even concerned by that situation. Ciments Français also concludes from those documents that the Franco-German agreement referred to in the international objections and the Franco-German cartel centred on Wössingen referred to in the German national objections were inextricably linked, since Wössingen's commercial policy in Germany and Cedest's exports to Germany were the cause of the practices

II - 1091

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

sharing the Saarland market and the other practices called in question under the alleged Franco- German agreements and practices. They therefore preclude the existence of a single and continuous infringement.

2460 It should be observed, however, that the documents referred to above are not susceptible of establishing the existence of an infringement of Ciments Français's rights of defence. The comments which it makes on the basis of those documents do not shed new light on the specific documentary evidence which the Commission used to establish Ciments Français's participation in the concerted practice designed to bring pressure to bear on Cedest (SO, chapter 2, paragraph 12; contested decision, recitals 22, paragraph 4, and 50, paragraph 3), the concerted practice with Dyckerhoff (SO, chapter 2, paragraph 12; contested decision, recitals 22, paragraphs 8 and 9, and 50, paragraph 3) and the agreement on the sharing of the markets concluded in 1984 (SO, chapter 2, paragraph 12; contested decision, recitals 2 2 , paragraph 10, and 50, paragraph 3). As regards the latter, it should be observed that its existence follows in particular from the letter dated 22 September 1986 which M r Laplace, Chairman of SFIC and of Ciments Français, sent to M r Schuhmacher, Chairman of B D Z and of Heidelberger (contested decision, recital 2 2 , paragraph 10).

2462 In its observations of 20 February 1998 Heidelberger again claims that documents 33.126/4135 and 4383 confirm that the alleged Franco-German agreement did not exist. The first document is an internal Ciments Français m e m o r a n d u m dated 15 M a y 1986, the content of which indicates that Ciments Français was then considering extending its services to the German market; that contradicts the existence of a Franco-German agreement. Heidelberger emphasises that the Commission relied mainly on the content of a letter which the Chairman of Ciments Français sent to its own Chairman on 22 September 1986 to demonstrate the existence of that alleged agreement (contested decision, recital 50, paragraph 3). The second document is also an internal Ciments Français m e m o r a n d u m describing its thoughts on the strategy which would allow it to penetrate the European markets; that helps refute the existence of a Cembureau principle of non-transhipment to domestic markets and, a fortiori, of a Franco-German agreement.

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2465 However, the documents on which BDZ relies also fail to establish the existence of an infringement of its rights of defence during the administrative procedure.

2466 Document 33.126/1427 has no relevance to BDZ's argument, since it sets out the general conditions of sale of CCB (see paragraph 1169 above). It must therefore be disregarded without further examination.

2467 Next, while it is true that documents 33.126/14630 and 14637, extracts from the SNFCC 'Courier d'Information' of 10 October 1989, contain data on French exports for 1978 to 1988, for two reasons BDZ cannot draw any particular conclusions from those documents as to the evidential significance of the volume of French exports to Germany between 1978 and 1988. First, the tables in both those documents relate to export deliveries of 'all binding materials' and clinker, without distinguishing between their destinations outside France, which makes it impossible to draw any conclusions as to the volume of French exports of cement to Germany. Second, even supposing that those figures related only to French exports of cement to Germany, the 'export deliveries of all binding materials' analysed in document 33.126/14630 went from 1 198 000 tonnes in 1978 to 1 153 000 tonnes in 1988. Similarly, the data relating to clinker exports between 1978 and 1988 set out in document 33.126/14637 indicate that those deliveries went from 2 310 000 tonnes in 1978 to 878 000 tonnes in 1988. A mere reading of those documents therefore contradicts the very basis of BDZ's argument. Nor, for two reasons, can documents 33.126/14661 and 14663, which are extracts from SNFCC's monthly information bulletin for December 1987, be relied on to support that argument. First, like documents 33.126/14630 and 14637, documents 33.126/14661 and 14663 fail to state the

— as regards Cedest, in its entirety;

— as regards Dyckerhoff, Ciments Français and Lafarge, in so far as it finds that they participated in an agreement on sharing the Saarland market and in an infringement of Article 85(1) of the Treaty after 12 August 1987;

— as regards SFIC, in so far as it finds that it participated in an agreement on the sharing of the Saarland market, in a concerted practice with BDZ before 1984, in a concerted practice aimed at exerting pressure on Cedest and in an infringement of Article 85(1) of the Treaty after 12 August 1987;

— as regards Heidelberger, in so far as it finds that it participated in an agreement on the sharing of the Saarland market and in an infringement of Article 85(1) of the Treaty between 23 June and 16 November 1982 and after 12 August 1987;

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2473 In that provision the Commission states that: '[SFIC and BDZ] infringed the provisions of Article 85(1) of the EC Treaty from 1 January 1985 to 30 September 1989 by participating in a concerted practice involving the exchange of information designed to monitor compliance with the quantitative restrictions on exports between France and Germany and to monitor the destination of such exports in terms of the various German Lander.'

2474 In the recitals of the contested decision the Commission deals with the infringement in question in The Facts, in recital 22, paragraphs 12 and 18, and in the Legal Assessment, in recital 50, paragraph 5.

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-46/95,T-48/95,T

2475 In recital 2 2 , paragraph 12, the Commission states:

2477 In recital 22, paragraph 18, of the contested decision the Commission answers the arguments put forward by BDZ to justify, on the basis of mathematical estimates, the existence of data on French exports for each Land.

2478 In recital 50, paragraph 5, the Commission makes the following analysis:

'The exchange of statistical information between SFIC and B D Z constitute, on the basis of the data available (see paragraph 12 of recital 22), from 1 January 1985 to 30 September 1989, a concerted practice restricting competition within the meaning of Article 85(1). The exchange of information must be seen in the context of the market-sharing agreements mentioned above, the aim being to allow the two associations concerned to monitor compliance with the quantitative

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restrictions on exports and the Länder for which they were intended (see paragraph 12 of recital 22). As stated in paragraphs 12 and 18 of recital 22, determining which Länder exports were intended for cannot be properly explained in any other terms than concerted action based on the exchange of data. This practice creates an artificial market situation in which abnormal transparency and stability in trade between Member States tend to rigidify the behaviour of economic agents and to eliminate the risks inherent in competition.'

2480 It is also apparent from the wording of the contested decision that the Commission considers that the concerted practice referred to in Article 3(3)(b) has a twofold object: first, to monitor compliance with the quantitative restrictions on exports between France and Germany and, second, to monitor the destination of such exports in terms of the various German Länder. The German version of the contested decision brings out even more the twofold object which the Commission attributes to the concerted practice. Article 3(3)(b) reads: '[SFIC] und [BDZ] haben vom 1. Januar 1985 bis 30. September 1988 gegen Artikel 85 Absatz 1 EG-Vertrag verstoßen, indem sie an einer abgestimmten Verhaltensweise betreffend den Austausch von Informationen zwecks Kontrolle der Einhaltung der mengenmäßigen Ausfuhrbegrenzungen zwischen Frankreich und Deutschland sowie zur Kontrolle der für die verschiedenen Bundesländer bestimmten Leiferungen teilgonommen haben.' The Commission cannot there- fore claim, as it did at the hearing in Case T-48/95, that it established the breakdown of French exports in terms of the various Lander in response to an argument developed by the applicants concerned during the administrative procedure. It is sufficient to point out that the Commission already referred in the SO (paragraph 12, p. 2 9 , and paragraph 61(d), pp. 174 and 175) to that twofold object of the infringement referred to in Article 3(3)(b) of the contested decision.

2481 The Commission therefore considers, as it confirmed in its submissions in Case T-48/95, that the exchanges of overall statistics in themselves made it possible to monitor the implementation of the agreement involving the general regulation of sates between France and Germany, even though such exchanges of overall data between trade associations, taken in isolation, are not unlawful. That position corroborates the first object which the Commission attributes in the contested decision to the infringement referred to in Article 3(3)(b).

2484 N e x t , the anti-competitive nature of a concerted practice whose object is to monitor an agreement to regulate cement deliveries between t w o M e m b e r States is not open to dispute. Subject to proof to the contrary, which it was for the t w o associations to adduce (see Commission v Anic, cited in paragraph 270 above, paragraph 1 2 1 , and Hüls v Commission, cited in paragraph 155 above, paragraph 162), it must be held that the exchanges of information between them influenced their conduct and that of their members concerned by trade between France and Germany.

2485 Last, although the first object of the concerted practice between SFIC and B D Z referred to in Article 3(3)(b) must be regarded as established, as SFIC and B D Z have not disputed that the exchanges did actually take place, it should be pointed out that, having regard to the relationship which the Commission has established between the conduct referred to in Article 3(3)(b) and that referred to in Article 3(3)(a) (see paragraph 2479 above), the exchanges of information between SFIC and B D Z no longer constituted an infringement after the date on which the infringement referred to in Article 3(3)(a) is deemed to have ceased. Accordingly, Article 3(3)(b) of the contested decision must also be annulled in so far as it establishes an infringement of Article 85(1) of the Treaty after 12 August 1987 (see paragraph 2418 above).

2486 As regards the second object of the concerted practice consisting in monitoring the destination of French exports to Germany in terms of Länder, it should be observed that the Commission has not presented any document to establish that the data on French exports for each Land found at BDZ's premises (documents 33.126/16709, 16702, 16694, 16686, 16609, 16706, 16698 and 16683) were taken directly from the data transmitted by SFIC. The Commission in fact considered that, having regard to the quarterly exchanges of overall statistics between SFIC

2490 Accordingly, Article 3(3)(b) of the contested decision must be annulled in so far as it finds the existence, from 1 January 1985 to 12 August 1987, of a concerted practice between SFIC and BDZ designed to monitor the destination in terms of Länder of French exports to Germany.

2491 On the other hand, in spite of the illegal aspects of Article 3(3)(b) of the contested decision identified in paragraphs 2 4 8 5 and 2 4 9 0 above, and contrary to the allegations made by BDZ, the Commission did not infringe Article 85(1) of the Treaty by stating that '[t]his practice creates an artificial market situation in which abnormal transparency and stability in trade between Member States tend to rigidify the behaviour of economic agents and to eliminate the risks inherent in competition' (contested decision, recital 50, paragraph 5, in fine).

2492 As well as disputing the existence of the concerted practice found in Article 3(3)(b) of the contested decision, SFIC and BDZ complain of an infringement of their rights of defence in so far as they were denied access during the administrative procedure to documents in the Commission's file which might have proved useful to their defence.

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/9J, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

Access to the file

2497 In its observations of 10 February 1997 B D Z observes that the documents which it was able to consult following the measure of 2 October 1996 make n o reference to any exchange of information other than that of insignificant overall figures. There is nothing in the documents from the French file to indicate that figures breaking down French imports between the various Länder were communicated to it. B D Z relies on the letter which its Chairman sent to the Chairman of SFIC on 20 December 1983 (document 33.126/14762) and to minutes of various meetings between the t w o associations and between their members.

2498 It should be pointed out that B D Z cannot derive any argument from its Chairman's letter of 20 December 1983 in the context of the plea alleging infringement of its rights of defence during the administrative procedure (see paragraph 266 above).

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2499 As regards the other documents relied on, it must again be found that, having regard to what was held in relation to the legality of Article 3(3)(b) (see paragraphs 2486 to 2 4 9 0 above), BDZ's argument has become devoid of purpose, since the Commission has not established that SFIC and BDZ exchanged information allowing them to monitor the breakdown of French exports between the various German Länder.

2500 In its observations of 16 January 1998 BDZ again claims that documents 33.126/14809 to 14827 show that the sole object of the exchanges of overall statistics between the two national associations was to verify the overall import figures provided by the French customs, which were available to everyone.

II- 1101

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

IX — Pleas alleging infringement of Articles 85(1) and 190 of the Treaty, of the principle of equal treatment, of the rights of the defence, and abuse of process and misuse of powers in that the Commission finds that there were agreements and concerted practices within the framework of the ETF contrary to Article 85(1) of the Treaty and that the various applicants participated in them (contested decision, Article 4(1), (2), (3)(a) and (b) and (4)(a) to (h))

Preliminary observations

2504 At the end of 1985 and beginning of 1986 the Greek cement producers, which had significantly increased their production capacities between the second half of the 1970s and the start of the 1980s to meet the strong demand from the construction and technical equipment markets in the Middle East, turned towards Europe in an attempt to solve overcapacity problems linked to the collapse, towards the end of 1985, of those markets in the Middle East (contested decision, recital 2 4 , paragraph 1).

2505 In Article 4 of the contested decision, the Commission finds a series of infringements of Article 85(1) of the Treaty, following the emergence of the 'Greek problem', namely:

— 'agreements and concerted practices designed to deflect the Greek production surplus and to curb Greek cement imports into the Member States' (Article 4(4)(a) to (h)).

2506 The Commission claims that those various agreements and practices arose from a single and continuous agreement intended to eliminate imports into the M e m b e r States of cement from Greece (contested decision, recital 5 3 , in particular paragraphs 2, 3, 9 and 14).

2507 In the operative part of the contested decision, however, the Commission does not find that that single and continuous agreement existed as such. Thus, Article 4(1) refers to 'the agreement on the setting-up of the Cembureau Task Force or European Task Force', and not 'the single and continuous agreement relating to the setting-up of the Cembureau Task Force or ETF and the various measures adopted at the meetings to eliminate imports into Western Europe and, in particular, to prevent imports of Greek cement into the Member States' (contested decision, recital 5 3 , point 9).

2508 The Commission confirmed this interpretation when replying to the written question raised by the Court of First Instance between 15 May and 15 June 1998 concerning the cases relating to the undertakings and associations of undertakings referred to in Article 4(1) of the contested decision:

'In the Commission's view, Article 4(1) does indeed relate only to the setting -up or organisation of the ETF (bearing in mind that participation in the setting-up of an organisation is t a n t a m o u n t to agreement to the proposed activities for that organisation).'

2511In its reply to the Court's written question referred to in paragraph 2508, the Commission adds:

'In the operative part of the decision the Commission sought to distinguish between the setting- up or actual existence of the ETF (Article 4(1)), which is an infringement quite independently of any implementing measures, and the various measures adopted and applied within the framework of the ETF (Article 4(2) to (4)).'

2512 In order t o assess the legality of Article 4 of t h e contested decision, the C o u r t must ascertain whether the Commission w a s right t o decide that the agreements a n d concerted practices found in t h a t article did in fact exist. Furthermore, it will be necessary t o consider the submissions by which some applicants dispute the Commission's classification, in recital 53 of t h e contested decision, of those various agreements a n d practices as 'a single a n d continuous agreement'.

The agreement relating to the setting-up of the ETF (contested decision, Article 4(1))

2513 According t o Article 4(1) of the contested decision, Cembureau, H o l d e r b a n k , Blue Circle, Oficemen, Asland, Uniland, Hispacement, SFIC, Lafarge, Ciments Français, B D Z , Dyckerhoff, Heidelberger, CBR, Aker, E U R O C, Aalborg, Irish Cement, Italcementi, Unicem a n d Cementir 'infringed t h e provisions of Article 85(1) of the E C Treaty as from 28 M a y 1986 by participating in the agreement on the setting-up of the Cembureau Task Force or European Task Force'.

2514 Except for Hispacement, which has n o t brought a n action for annulment of the contested decision, all the undertakings a n d associations of undertakings mentioned in Article 4(1) p u t forward arguments for annulment of t h a t provision. T w o of the applicants allege lack of consistency between the SO a n d the contested decision. A series of arguments seeks t o show t h a t the agreement o n the setting-up of the ETF w a s n o t an infringement. M o s t of the applicants deny any unlawful involvement in that agreement. Finally, some of them dispute the duration of the infringement or, at least the duration of their participation in it. T h e applicants concerned will be identified w h e n those various arguments are considered.

2518 Aalborg asserts that the SO presented the facts as showing, on the one hand, a set of agreements or concerted practices on the circulation of price information from an unspecified date in 1983 and, on the other hand, continuous agreements on the home market rule and/or concerted practices 'resulting originally from and conditioned by the laying down of and compliance with the home market rule' which had existed for dozens of years (SO, point 61). In the contested decision, the Commission altered that characterisation of the facts and referred instead, in particular, to an agreement concerning the ETF, concluded on 28 May 1986.

2519 The Court points out, however, that the Commission devoted the second section of Chapter 2 of the SO (points 16 to 20) to setting out the facts relating to the 'Cembureau Task Force or European Task Force'.

2520 Point 17 describes the circumstances relating in particular to the 'setting-up and activity of "Cembureau Task Force or European Task Force'".

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2521 The Commission began by mentioning the meeting held in Rome on 28 M a y 1986:

2525 Aalborg's submissions must therefore be rejected.

2526 Unicem claims that, in the SO, the ETF was referred to solely in connection with the disagreement with the Greek producers on account of their infringement of the home market rule. By contrast, in the contested decision, the Commission considered that the object of the ETF was wider than the attempt to prevent imports from Greece.

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2527 In this connection, it is true that, in the contested decision, the Commission finds (recital 5 3 , paragraph 7) that 'ETF's purpose... is thus general and not simply confined to the problem of Greek exports', which it did not mention expressly in the part of the SO concerning the ETF.

2528 N o n e the less, the document on which the Commission relies in this part of the contested decision in concluding that the objective pursued by the ETF was general in nature, is the record of the meeting of the ETF held on 19 August 1986 in Geneva (contested decision, recital 2 5 , paragraph 15). T h a t document, appended by Aker and E U R O C to their reply to the SO, was sent by letter of 9 July 1992 by the Commission to all the relevant addressees of the SO, including Unicem, which were requested to make known any comments on that document (contested decision, recital 2, paragraph 3). Unicem therefore nad the opportunity, during the administrative procedure, to put forward its comments concerning the definition of the objective pursued by the ETF as it appeared in that document.

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JUDGMENT OF 15. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/9S, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

decision, the Commission did not mention the effort by some members of the European cement industry to hold lawful dialogue with Community authorities.

2533 In support of its submissions, CBR refers t o document 3 3 . 1 2 6 / 1 8 7 6 1 , in which Holderbank, replying t o a request for information addressed to it by the Commission in 1990 concerning the ETF, explained that the essential role of the latter w a s t o support the intensive lobbying activities of the European cement industry, between the end of summer 1986 and beginning of 1987, with a view t o persuading the European authorities t o adopt measures against the anti- competitive conduct of the Hellenic Republic and its cement producers. Uniland, Italcementi and Holderbank refer t o the meeting which the representatives of the European cement industry had with M r Sutherland, a member of the Commission, in N o v e m b e r 1986, in order t o inform him and, through him, the College of Commissioners, of the concern t o which the scheme of State aid granted t o Greek producers gave rise. In addition, Holderbank produced various documents illustrating the political steps taken t o that end by the European cement producers, in particular in relation t o members of the European Parliament and Members of the Commission. Italcementi complains that the Commission referred exclusively, in its assessment of the lawfulness of ETF's objectives, t o the actions described in the document mentioned in paragraphs 3 t o 7 of recital 2 5 of the contested decision, whereas that document w a s finalised at a meeting held earlier t h a n that of 9 June 1986, during which the formal decision t o set u p the ETF w a s adopted (contested decision, recital 2 5 , paragraphs 8 and 10).

'ETF's purpose is to evaluate measures to eliminate imports to Western Europe, presently from Greece. ETF shall recommend measures to the Head Delegates.'

2538 That objective is confirmed by the minutes of the meeting of ETF Head Delegates and representatives in Baden-Baden on 9 September 1986 (contested decision, recital 2 5 , paragraph 24: document 33.126/18858):

'The ETF was set up in order to examine possible "dissuasive" and "persuasive" measures to counter the arrival of cheap cement on European markets (primarily against Greek imports into the United Kingdom) and to submit recommendations to the Head Delegates.'

2539 The allusion, in that second extract, to 'dissuasive' and 'persuasive' measures necessarily refers back to the paper entitled 'Collective response to problems posed by destabilising cement industry', which was finalised by a working group consisting of several representatives of the European cement industry, from 3 to 5 June 1986 in Zurich and then in Céligny (contested decision, recital 2 5 , paragraphs 2 to 7; documents 33.126/18772 to 18779, 'the Zurich/Céligny document'), and which, in substance, contains the following explanations concerning the measures involved:

'Dissuasive measures ("Stick Actions")

— Defence of European domestic markets by various means, e.g. administrative obstacles, imposition of quality standards, action by Associations, penalising of customers purchasing imported cement.

— Seeking the assistance of international banks to "convince" the producers destabilising the market, intermediaries and shipowners to cooperate.

Persuasive measures ("Carrot Actions")

Purchase of available tonnage from producers destabilising the market and its channelling towards the United States (Blue Circle, Holderbank, Lafarge, Cementa/Norcem and others could do this), West Africa (France could be responsible for this), other countries (complex solutions are envisaged if necessary).'

2540 In the light of the foregoing, the Commission was justified in considering that the object of the ETF was 'the prevention of trade in cement in the Community and the partitioning of national markets to the benefit of local producers and the detriment of consumers' (contested decision, recital 5 3 , paragraph 14). The Commission was therefore fully entitled to conclude (same paragraph) that such a restriction of competition constituted 'a clear infringement of Article 85(1) of the Treaty'.

2541 The arguments of the applicants referred to at paragraph 2 5 3 2 above must therefore be rejected.

2542 Holderbank claims that the ETF discussions took place in the presence of MEPs, government representatives and Commission agents. In this connection, it mentions the documentation forwarded to the members of the European Parliament allegedly present at the meeting of 9 September 1986 in Baden-Baden, and also the press release d r a w n up by the president o f the

2546 Second, Blue Circle claims that the agreement setting up the ETF was a purely preparatory act, with n o anti-competitive object. The common intention of the founder members of the ETF never went beyond setting it up.

2547 However, it must once again be held that those allegations are plainly contradicted by the bundle of documents considered in paragraphs 2 5 3 7 to 2540 above, which show that the ETF was assigned an anti-competitive object from the beginning.

2548 Blue Circle also states that there never was an anti-competitive plan common to the members of the ETF. It claims that the Commission erred in law in contending, in recital 5 3 , paragraph 5, in the preamble to the contested decision, that it was not necessary to show that there was a c o m m o n intention of the parties to conduct themselves on the market in an anti-competitive manner in order to prove the existence of an agreement or practice contrary to Article 85(1) of the Treaty.

2549 The Court points out, however, that the contentions which Blue Circle imputes to the Commission do not appear in recital 5 3 , paragraph 5, in the preamble to the contested decision. At that point in the recitals, the Commission merely states, on the basis of the judgment in Case

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2553 The SFIC considers that, in such a context, it was not open to the Commission to be satisfied with establishing participation in meetings. It ought also to have shown that measures contrary to Article 85(1) of the Treaty had been adopted, in particular by SFIC, against Greek cement producers. Lafarge maintains that, in accordance with the case-law of the Court (Suiker Unie and Others v Commission, cited at paragraph 651 above), if government measures seriously distort competition, thus preventing traders from following the normal patterns of competition, Article 85(1) of the Treaty is no longer applicable. Aker and E U R O C , after pointing out that one of the objectives of the Treaty is to establish 'a system ensuring that competition in the internal market is not distorted' (Article 3g), consider, on the basis of the judgment in Case 6/72 Europemballage Corporation and Continental Can Company v Commission [1973] ECR 2 1 5 , paragraph 2 4 , where undertakings and M e m b e r States perform acts or adopt measures which distort competition, Article 85(1) of the Treaty must not be applied to actions which are intended only to eliminate the consequences of those incompatible measures.

2554 Lafarge, BDZ, Uniland, Italcementi, Holderbank, Aker, E U R O C and Blue Circle allege that the Commission did not adopt the measures which were necessary in order to ensure that the distortion of competition caused by the aid unlawfully received by the Greek producers was swiftly eliminated. In support of their arguments, Lafarge, Uniland, Italcementi, Holderbank and Blue Circle cite the judgment in Joined Cases T-447/93, T-448/93 and T-449/93 AITEC and

2558 N o r can the fact that traders have, in the present case, received public aid justify the adoption of private anti-competitive initiatives, even if the aid in question was unlawful. As the Commission correctly points out in recital 5 3 , paragraph 8, while undertakings have the right 'not only to notify the competent authorities (including the Commission itself) of any infringements of national or Community provisions, but also to make a joint approach for this purpose, which necessarily presupposes the ability to hold preparatory discussions amongst themselves', they are not entitled to take the law into their own hands by substituting themselves for the authorities with competence to penalise any infringements of national and/or Community law and by preventing, through measures adopted on their own initiative, the movement of products within the internal market (see Hilti v Commission, cited in paragraph 2082 above, paragraphs 115 to 119, and SCK and FNK v Commission, cited in paragraph 485 above, paragraph 194). The case-law relied on by La farge and by Aker and E U R O C (see paragraph 2553 above) is irrelevant in that regard.

2559 Nor can the laxity allegedly displayed by the Commission in connection with the file on Greek State aid justify unlawful initiatives adopted by the undertakings in order to resolve the 'Greek problem'. Even on the assumption that the Commission has failed to fulfil certain of its

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JUDGMENT OF IS. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2563 However, a decision is vitiated by misuse of powers only if it is apparent, on the basis of objective, relevant and consistent evidence, that it was adopted with the exclusive or main purpose of achieving ends other than those stated (see the case-law cited at paragraph 779 above).

2564 In the present case, the Commission explains, in particular at recital 5 3 , paragraph 7, of the contested decision that it judged the agreement setting up the ETF to be contrary to Article 85(1) of the Treaty on the grounds that the objective pursued by that agreement was 'to evaluate measures to eliminate imports to Western Europe [i.e.] imports from Greece'. It having been concluded in the analysis developed at paragraphs 2 5 3 7 to 2 5 4 0 above that that assessment was well founded, Lafarge's submission alleging misuse of power or abuse of process by the Commission must therefore be rejected.

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2565 Italcementi claims, citing Commission Decision 92/444/EEC of 30 July 1992 relating to a proceeding under Article 85 of the EEC Treaty (Case N o IV/33.494 — Scottish Salmon Board) (OJ 1992 L 2 4 6 , p. 37), that in so far as the European industries tried, through the ETF, to protect themselves against disturbances on the market, when safeguard measures were likely to be implemented by the Community public administration, the Commission ought, as in the case giving rise to that decision, to have confined itself to the finding of infringement of the Treaty, without imposing any penalty on the undertakings concerned, a fortiori because such an approach was authorised by the Court (Case 7/82 GVL v Commission [1983] ECR 4 8 3 , paragraph 25).

2569 Fourth, CBR, Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Italcementi, Holderbank and Blue Circle consider that the setting-up of the ETF cannot be considered to constitute an infringement, since its members constantly displayed their concern to comply with Community law, by agreeing, first, to submit the measures contemplated to legal scrutiny to ensure their lawfulness and, second, to notify the Community authorities thereof. In this connection, they refer to various documents mentioned in recital 25 of the contested decision (record of the meeting held on 28 May 1986 in Rome (contested decision, recital 2 5 , paragraph 1; document 33.126/18771); the Zurich/Céligny document; minutes of the ETF meeting of 21 October 1986 (contested decision, recital 2 5 , paragraphs 34 to 38, in particular paragraph 3 5 ; documents 33.126/18895 to 18900, in particular 18895 and 18896); 'notes of the meeting of EEC cement industry representatives in the Hilton Hotel, Brussels, at 9.00 a.m., 6 November 1986', (contested decision, recital 2 5 , paragraphs 39 to 4 3 , in particular paragraph 4 0 ; documents 33.126/19007 and 19008)).

2570 The Court finds that the various documents put forward by the applicants d o in fact reveal the wish of the members of the ETF to ensure compliance with Community law. However, the fact

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/9J, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/9S AND T-104/95

2573 However, the document relied on in this connection by the applicants ('notes of the meeting with Commissioner Sutherland in Brussels, 6 November 1986 at 11.00'; documents 33.126/19009 and 19010) do not bear out such assertions. At most, it would appear that representatives of the European cement industry made the member of the Commission aware of their common anxieties concerning the Greek situation and their desire to find a solution which would reconcile the various interests in play. That document does not show that the setting-up of the ETF, its objective or the dissuasive and persuasive measures that it had been instructed to consider in order to deal with the threat created by Greek imports were made known to Mr Sutherland or that he approved them. In any event, that line of argument cannot hide the fact that there was no formal notification to the Commission of the agreement setting up the ETF or, therefore, that the agreement was unlawful.

2574 The arguments of Lafarge, Italcementi and Holderbank must, therefore, be rejected.

2575 Fifth, Aalborg claims that there is no reference in any of the documents concerning the ETF to the Cembureau agreement. Blue Circle submits that there is nothing in the contested decision to show that those participating in the ETF had the common objective of implementing the Cembureau agreement.

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2576 However, it must be found that those submissions cannot prevail over the documents analysed at paragraphs 2537 to 2540 above, which prove the anti-competitive purpose of the ETF.

2580 It should, however, be pointed out that that claim is contradicted by various documents showing that the relevant geographical market to which the agreement referred to in Article 4(1) of the contested decision relates had the European dimension described by the Commission in recital 11 thereof. Thus it is clear from the record of the meeting held on 28 May 1986 in Rome — first meeting described in recital 25 of the contested decision in relation to the Greek question — that 'all countries [of Western Europe]' were concerned by the decision of the Greek industry to export 2 million surplus tonnes a year, a decision which was at the origin of the 'common front' reaction of the European producers, based on dissuasive and persuasive measures (contested decision, recital 2 5 , paragraph 1; document 33.126/18771). Moreover, the Zurich/Celigny document advocated 'cooperation between the common market/ Western European producers' in order to confront the threat of destabilising imports which was of concern 'to the whole of Europe and not only to the countries under immediate attack'. Last, it has already been pointed out (see paragraphs 2 5 3 7 and 2538 above) that, in the words of the reports of the ETF meeting held on 19 August 1986 in Geneva (contested decision, recital 2 5 , paragraph 15: annex 15 to the reply bv Aker and E U R O C to the SO) and the meeting of the Head Delegates and representatives of the ETF on 9 September 1986 in Baden-Baden (contested decision, recital 2 5 , paragraph 24; documents 33.126/18849 to 18862), the objective of the ETF was to examine dissuasive and persuasive measures to eliminate imports of cement into European markets.

2584 Lafarge thus claims that the ETF was a think-tank, with mere power to submit proposals. The setting-up of the ETF was therefore not in itself a measure falling within the scope of Article 85(1) of the Treaty. T h a t think-tank was unable to reach a concurrence of wills, since it lacked any decision-making power — which was reserved exclusively to the H e a d Delegates — and it could not have caused any restriction of competition, since its powers were confined to the formulation of mere proposals. Lafarge adds that the only two measures proposed by the ETF in order to settle the 'Greek problem' were actions intended to raise the consciousness of national and Community authorities, on the one hand, and the creation of Interciment, on the other. However, none of those measures was unlawful. Article 4(1) of the contested decision, which classifies the setting-up of the ETF as an infringement of Article 85(1) of the Treaty, is, in Lafarge's opinion, ultimately devoid of purpose, because the creation of Interciment, the only measure to which the setting-up of the ETF led, is found to be unlawful in Article 4(2).

2585 Aalborg claims that, with the exception of Interciment, a dormant company, the ETF never went beyond the stage of intentions.

2586 Holderbank points out that none of the reprisal measures discussed within the ETF was actually p u t into effect.

2587 Aker and E U R O C maintain that the ETF was a discussion group, the founder members of which did not in any definite way commit themselves to unlawful collective action. They add that the agreement setting-up the ETF did not have an appreciable effect on competition.

2590 Ninth, Aker and E U R O C maintain that the agreement setting up the ETF had no appreciable effect on trade between Member States.

2591 It must however be recalled that, by prohibiting agreements the object or effect of which is to restrict competition and which are liable to affect trade between M e m b e r States, Article 85(1) of the Treaty does not require it to be established that the agreement or concerted practice in question has in fact appreciably affected that trade, proof of which, in most cases, would be difficult to establish. It requires proof that the agreement or practice was capable of having such an effect. An agreement may thus affect trade between Member States where it is possible to foresee with a sufficient degree of probability, on the basis of a set of factors of law or of fact, that the agreement or practice in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States (see, to that effect, the case-law cited in paragraph 1986 above). By its very objective, which was to eliminate imports into Western Europe (see the documents examined in paragraphs 2 5 3 7 to 2 5 4 0 above), the agreement setting up the ETF was capable of having an appreciable effect on trade in cement within the common market. Aker and EUROC's argument must therefore be rejected.

I I - 1119

JUDGMENT OF IS. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/9S TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

— the meeting on 28 May 1986 in Rome (recital 25, paragraph 1);

— working party meetings from 3 to 5 June 1986 in Zurich and then in Céligny (paragraphs 2 to 7);

— meeting on 9 June 1986 in Stockholm (paragraphs 8 to 10);

— eight meetings of the ETF: on 17 June 1986 in London (paragraph 11), on 2 July 1986 in Milan (paragraph 12), on 8 July 1986 in Geneva (paragraph 13), on 19 August 1986 in Geneva (paragraphs 14 to 20), on 9 September 1986 in Baden-Baden (paragraph 21), on 21 October 1986 in Geneva (paragraphs 34 to 38), on 9 January 1987 in Milan (paragraph 44) and on 11 February 1987 in Geneva (paragraphs 45 and 46);

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2596 CBR claims not t o have been represented in the ETF and not to have taken part in any of the meetings described in recital 25 of the contested decision. It acknowledges that the Belgian Head Delegate was present at the meeting on 9 June 1986 in Stockholm. At that meeting, the only decision taken was to create Interciment. CBR acknowledges that the Belgian Head Delegate was present at the meeting in Baden-Baden on 9 September 1986, described in recital 2 5 , paragraphs 2 2 to 32 of the contested decision. N o n e the less, that meeting was purely informative: it enabled the members of the ETF t o put forward the conclusions drawn from their work and t o prepare the next day's meeting, in Strasbourg, with members of the European Parliament. Moreover, at that meeting it was decided to keep Interciment dormant. CBR admits that the Belgian industry was represented at the meeting held on 6 November 1986. It claims, however, that that meeting merely served as preparation for the meeting arranged the same day with M r Sutherland, a member of the Commission, concerning the file relating to Greece. It was also confirmed at that meeting that Interciment would remain dormant. CBR submits that it did not take part in any other meeting of the ETF until it was dissolved, nor did it take part in any of its working subgroups.

II - 1121

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2597 It must be pointed out that the Belgian H e a d Delegate present at the meeting in Stockholm on 9 June 1986 was M r Van H o v e , then Chairman of CBR (reply by CBR on 16 June 1998 to the written question of the Court). At that meeting, M r Van Hove represented the interests of the Belgian industry as a whole, including those of CBR, which he could not disregard, taking account of the major role which he then played in CBR.

2600 According to the minutes of the meeting (contested decision, recital 2 5 , paragraphs 22 to 32; documents 33.126/18849 to 18862), at the beginning of the meeting the ETF's objective was recapitulated in the following terms: The ETF was established in order 'to examine possible "dissuasive" and "persuasive" measures to counter the arrival of cheap cement on European m a r k e t s (primarily against Greek imports into the United Kingdom) and to submit recommendations to the H e a d Delegates'. The ETF then identified a series of subjects requiring study and investigation: agreement with the Greek industry; retaliatory action on the traditional markets for Greek export; exports to Greece; threats from other countries; cement dealers. As the ETF was overloaded with w o r k and had not proposed any significant solution since it had been set up, the decision was taken to create various working subgroups (subgroup of intermediaries; subgroup 'Greek export markets'; subgroup 'exports t o Greece'; subgroup 'exchange of defensive experiences'; subgroup 'threats from other countries'), coordination of which was to be carried out by the ETF and work submitted from time to time to the H e a d Delegates. Several of the dissuasive and persuasive measures contemplated in the Zurich/ Céligny document were then examined. Decisions or positions were adopted on some of these: thus, it was decided to continue negotiations with a view to an agreement intended to absorb Greek excess capacity, the ETF was instructed to submit recommendations to the H e a d Delegates by the end of September concerning the feasibility of exports to Greece as retaliation, and it was decided to gather further information following Blue Circle's fruitless approaches to

2604 However, since there is nothing in the contested decision t o support the conclusion that CBR acceded to the agreement constituting the ETF before it took part in the meeting held in S t o c k h o l m o n 9 June 1986, Article 4(1) of the contested decision must be annulled in so far as it finds that CBR took part in that agreement before that date.

2605 CBR also disputes various items of evidence on which the Commission relies in recital 2 4 , paragraph 3 , of the contested decision in submitting that the coalition intended t o tackle the 'Greek threat' was formed within Cembureau.

I I - 1123

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2606 However, there is no need to consider whether that line of argument is well founded; it suffices to point out that it cannot refute the findings made in paragraphs 2 5 9 7 to 2 6 0 2 above regarding CBR's participation in the meeting in Stockholm on 9 June 1986, the meeting of the H e a d Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 and the meeting in Brussels on 6 November 1986. It is not therefore of such a nature as to invalidate the conclusion reached in paragraph 2603 above as to the correctness of the Commission's decision finding that CBR took part in the agreement setting up the ETF.

3. Cembureau

2608 Nevertheless, it should be pointed out that, in the words of the record of the meeting held in Rome on 28 M a y 1986, drafted by M r D u t r o n ('informal meeting on problems raised by Greece, R o m e , 28 M a y 1986'; contested decision, recital 2 5 , p a r a g r a p h 1; document 33.126/18771), the object of that meeting was to respond, rapidly and in c o m m o n , to the decision of the Greek cement industry to export cement (two million tonnes per year) into Western Europe, by combining defensive measures ('the stick') and supportive measures ('the carrot'). The participants at that meeting agreed to meet again in Stockholm on 9 June 1986. With a view to that new meeting, a working group of four members was appointed with the task of preparing in Zurich the following week, with the assistance of M r Collis, 'detailed documentation on all the matters dealing with possible defensive measures'. It was also agreed at that meeting that Holderbank was to prepare a 'position paper' including some proposed supportive measures. Thus, at the meeting in Rome on 28 M a y 1986 the idea arose of a c o m m o n response to destabilising imports, primarily those from Greece, by means of dissuasive and persuasive measures. T h a t meeting gave rise to the 'ETF' initiative.

2609 By taking part in the meeting on 28 M a y 1986, in the person of M r Dutron, w h o was responsible for drafting the record of that meeting, and by offering M r Collis' assistance in order to prepare detailed documentation on feasible dissuasive measures for the purposes of the meeting in Stockholm on 9 June 1986, Cembureau indicated its support, from the very start, for the setting-up of the ETF and for the evaluation by the ETF of dissuasive and persuasive measures.

4. Dyckerhoff

2614 Dyckerhoff points out that, of all the meetings described in recital 25 of the contested decision, it took part only in the meetings in Rome on 28 May 1986, in Stockholm on 9 June 1986, of the Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986, and of the representatives of the European cement industry in Brussels on 6 November 1986.

2615 It maintains that it participated in those four meetings for the sole purpose of making national and Community authorities aware of the problems created by State aid granted to Greek cement producers. That corresponded with one of the two objectives pursued by the ETF. It claims to have shown its lack of interest in and lack of support for the unlawful activities of the ETF by not appointing any representative within the ETF, by ceasing to take part in any meeting after having had the interview with M r Sutherland, a member of the Commission, in Brussels on

II-1125

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

6 November 1986, and by not taking part in any dissuasive measure. In its view, those various aspects of its conduct clearly showed the other producers concerned that its sole interest lay in making the Commission take action in respect of breaches of Community law committed by the Hellenic Republic.

2620 Having regard t o the findings in paragraphs 2 5 0 7 t o 2 5 1 1 above, there is no need t o assess at this juncture whether Dyckerhoff's argument denying that it t o o k part in dissuasive measures against Greek producers is well founded, and it must therefore be concluded that the Commission w a s fully entitled t o hold t h a t Dyckerhoff t o o k p a r t from 28 M a y 1986 in the agreement setting u p the ETF.

5. SFIC

2621 SFIC maintains t h a t the evidence p u t forward by the Commission does n o t prove that it was involved in the agreement setting up the ETF. There is n o evidence of any decision of an

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association of undertakings, and the Commission has not demonstrated how the conduct of the persons carrying out duties within it could have had anti-competitive object.

2625 It is thus apparent that Mr Laplace and Mr Kasriel were present, at the very least as representatives of the SFIC, at the four meetings mentioned in paragraph 2623 above, at which on each occasion a concurrence of wills was expressed concerning the setting-up of the ETF (see paragraphs 2598, 2600, 2602 and 2608 above), and that the SFIC, by relaying to its market the discussions held at those meetings on the question of exports from Greece, adopted, in connection with the infringement found to exist by Article 4( 1 ) of the contested decision, an individual course of conduct, separate from that of the French undertakings referred to in that provision. The Commission was therefore fully entitled to consider that as from 28 May 1986 the SFIC participated in the agreement setting up the ETF, as found in Article 4(1) of the contested decision.

I I - 1127

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

6. Ciments Français

2628 It must, however, be pointed out that, according to the record of the meeting held in Rome on 28 M a y 1986 (contested decision, recital 2 5 , paragraph 1; document 33.126/18771), a representative of 'Ciments Français' was present at that meeting. According to that same record, the representatives of the 'companies' w h o had met in Rome decided to meet again in Stockholm on 9 June 1986. By letter of 2 2 September 1986 (recital 2 5 , paragraph 33 of the contested decision; document 33.126/19022), Holderbank requested Lafarge to give 'Ciments Français' a copy of the minutes of the meeting of H e a d Delegates and members of the ETF held in Baden-Baden on 9 September 1986.

2629 Whether or not the meetings in Rome on 28 M a y 1986, Stockholm on 9 June 1986 and Brussels on 6 November 1986 were official meetings of the H e a d Delegates of Cembureau, it is therefore apparent that M r Laplace was present at those meetings in his capacity as high representative of Ciments Français as well as of SFIC.

2630 In that connection, the Commission correctly states in the contested decision (recital 5 3 , paragraph 13):

'Even if M r Laplace did, like other representatives, participate [in those meetings] in his capacity as President of an Association or chairman of a committee, he could not, in attending

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CIMENTERIES CBR AND OTHERS V COMMISSION

2634 In its view, it is apparent from the record of the meeting that the purpose of the meeting was simply to consider in a general manner possible measures against cheap imports from Greece. The meeting merely led to the setting-up of a limited working group, composed of the producers affected by those imports (United Kingdom, Spain, France a n d Italy). That group was instructed to prepare documentation on the legal aspects of any defensive measures. At the meeting, only lawful responses were considered. N o unlawful action or measure was either contemplated or adopted.

2635 Heidelberger states that it did not participate in the Zurich/Céligny meeting of the working group from 3 to 5 June 1986, in the course of which no measure was in any event adopted. It neither approved nor supported the setting-up of the ETF. It had distanced itself from the measures contemplated against Greek producers at a time when it could not yet foresee the possibility of infringements of the rules on competition. Nor did it play any part in the

II - 1129

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

application of the measures adopted in connection with the ETF. It acknowledges that the name of Mr Brenke is mentioned in the minutes of the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 amongst the members of the subgroup 'exchange of defensive experiences', created at that meeting (contested decision, recital 25, paragraph 24; document 33.126/18862). It claims, however, that it was only through the SO that it was informed of the existence of that subgroup and that it never took part in its meetings. Nor did it take part in the meetings of the Head Delegates at which ETF proposals were adopted.

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CIMENTERIES CBR AND OTHERS V COMMISSION

moreover that, contrary to what Heidelberger would now have the Court believe, it never gave the other participants the impression that it had no interest in the problem of imports of Greek cement into European markets.

2642 In those circumstances, it is immaterial that, in order to illustrate the unlawful objective pursued by the setting-up of the ETF, the Commission relied, inter alia on a document which related to a meeting subsequent to that held in Rome on 28 May 1986, namely the ETF meeting held in Geneva on 19 August 1986, at which Heidelberger was not present.

2643 There being no need, in the light of what has been found in paragraphs 2507 to 2511, to evaluate at this juncture whether Heidelberger's argument denying any participation in the application of the measures adopted in connection with the ETF is well founded, it must therefore be concluded that the Commission was fully entitled to consider that, as from 28 May 1986, Heidelberger participated in the agreement setting up the ETF.

2644 Next, Heidelberger challenges the relevance of the evidence relied on by the Commission in recital 24, paragraph 3, of the contested decision in order to establish a structural link between Cembureau and the ETF. It adds that the existence of such a link is belied by the fact that Cembureau is the European cement industry organisation, of which the association of Greek cement producers is a part and therefore, indirectly, the Greek producers themselves. It must therefore be be ruled out that Cembureau would have adopted measures against the Greek industry. In consequence, Heidelberger cannot be held indirectly responsible for the ETF through Cembureau.

2648 Lafarge claims that the Commission has not proved that there is a link between the ETF and Cembureau. It challenges the evidence cited in recital 2 4 , paragraph 3 , and recital 5 3 , paragraph 1, of the contested decision. T h e fact that the ETF w a s created after Cembureau cannot reveal any link between those t w o organisations. In its view, the organisation of a general assembly of Cembureau and a meeting of the ETF in Stockholm on the same day, namely 9 June 1986, can be explained on practical grounds. According t o Lafarge, it does n o t reveal that there is any link between the t w o cases. T h e Cembureau documents in fact establish the total independence of those t w o bodies, since there is in them no allusion t o the ETF in 1986 or 1987. Finally, it claims that the ETF could never have pursued its objective within Cembureau, the role of which is more general, and of which Greek cement producers are members.

2649 There is no need t o consider whether that line of argument is well founded, as it cannot refute the findings made by the Commission in recital 2 5 of the contested decision, which Lafarge does not challenge, namely, that Lafarge took part in the following meetings:

— meeting in Rome on 28 May 1986 (contested decision, recital 25, paragraph 1; document 33.126/18771);

— meetings of the Zurich/Céligny working group on 3 and 5 June 1986 (contested decision, recital 25, paragraph 2; document 33.126/18756);

— meeting in Stockholm on 9 June 1986 (contested decision, recital 25, paragraph 9);

— meeting of the ETF in London on 17 June 1986 (contested decision, recital 25, paragraph 11; document 33.126/18756);

— meeting of the Head Delegates and representatives of the ETF at Baden-Baden on 9 September 1986 (contested decision, recital 25, paragraph 23; document 33.126/18857);

— meeting of the ETF in Geneva on 21 October 1986 (contested decision, recital 25, paragraph 34; documents 33.126/18758, 18895, 18896 and 18899);

— meeting of the ETF on 9 January 1987 (contested decision, recital 25, paragraph 44; document 33.126/18759);

— meeting of the ETF in Geneva on 11 February 1987 (contested decision, recital 25, paragraph 45; documents 33.126/18760 and 18929, 18930, 18934 and 18936);

— meeting of the subgroup 'stick actions' of 17 March 1987 (contested decision, recital 25, paragraph 47; documents 33.126/4858 to 4861).

2650 Having regard to what has been set out in paragraphs 2598, 2600 and 2608 above and in view of Lafarge's participation in the meetings in Rome on 28 May 1986 and in Stockholm on 9 June 1986 and the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986, together with, on the one hand, its contribution to the finalisation of the Zurich/Céligny document and, on the other, its capacity as a direct member of the ETF, the Commission was fully entitled to consider that Lafarge had, from the start, approved the setting-up of the ETF and its anti-competitive objective. The Commission was thus correct in finding, in Article 4(1) of the contested decision, that Lafarge had participated in the agreement setting up the ETF as from 28 May 1986.

2653 Aalborg submits that its participation in the meeting held in Baden-Baden on 9 September 1986 formed a part of the lobbying efforts of the European cement industry vis-à-vis the Community institutions, in order that appropriate measures should be adopted t o end State aid unlawfully received by the Greek industry. For Aalborg, the sole purpose of that meeting w a s therefore t o prepare for the next day's meeting with members of the European Parliament. T h e applicant claims t o have received a fax on 3 September 1986 informing it that the E T F w a s t o report on its activities at that meeting in Baden-Baden. It supposed that report could be useful in lobbying the Community institutions. In any event, that point w a s entered into the agenda after the agenda had already been d r a w n u p . It w a s , therefore, purely as a result of a coincidence that Aalborg w a s informed of the activities of the ETF. In the meeting, the members of the ETF made k n o w n their thoughts as t o feasible activities. According to Aalborg, none of them w a s presented as being appropriate, or as having been adopted or implemented. N o r w a s any decision prepared or adopted at Baden-Baden in which Aalborg could have regarded itself as a participant. In the light of information communicated at that meeting, Aalborg also understood that n o activity contemplated by the ETF w a s t o be implemented without previous legal advice.

2654 T h e applicant acknowledges having participated in a meeting in Brussels on 5 November 1986, with a view t o the next day's meeting with M r Sutherland, a member of the Commission. It did not take part in any other meeting connected with the ETE

2658 In those circumstances, the Court need not consider Aalborg's arguments alleging lack of precision in the SO and failure to state reasons for the contested decision in so far as concerns the Commission's finding that Aalborg participated in the infringement referred t o in Article 4(1), as from 28 M a y 1986, the date of the Rome meeting.

2659 Aalborg also denies that there was ever any link between Cembureau and the ETF. It states that most of the documents referring to the ETF use the expression 'group of eight' t o designate the ETF. It also denies that the Head Delegates called upon to ratify the ETF's proposals were the official Head Delegates of Cembureau.

2660 However, there is no need to consider whether that line of argument is well founded. It suffices to point out that it cannot alter the finding in paragraph 2 6 5 5 above that Aalborg participated in the meeting held in Baden-Baden on 9 September 1986, as described in recital 2 5 , paragraphs 22 to 3 2 , of the contested decision. Accordingly, that argument is not of such a nature as t o undermine the conclusion reached in paragraph 2 6 5 6 above as t o the validity of the Commission's finding that Aalborg participated in the agreement setting up the ETF.

10. B D Z

2661 BDZ states that, according to the contested decision, the exports from Greece which triggered the measures alleged by the Commission concern Germany only incidentally. Moreover, BDZ

II - 1135

2663 Last, B D Z submits that none of the documents quoted by the Commission with regard t o the ETF demonstrates that the B D Z informed its members of unlawful measures adopted in connection with the ETF.

2664 It must be noted that the B D Z acknowledged at the hearing that a member of Dyckerhoff's staff t o o k part in the meeting in Stockholm on 9 June 1986.

2665 T h a t meeting is described as a ' H e a d Delegates meeting' in the minutes of the meeting of H e a d Delegates and representatives of the E T F in Baden-Baden on 9 September 1986. Moreover, it is n o t disputed t h a t t h a t meeting was held on the fringes of annual general assembly of Cembureau (contested decision, recital 2 5 , paragraph 8).

2666 In the light of those facts, it must be concluded that participants in the Stockholm meeting w h o represented an undertaking which w a s a member of the trade association h a d been given, if n o t the official title of H e a d Delegate within the meaning used in Cembureau, at the very least p o w e r t o represent the trade association in question. The Commission was therefore justified in considering that the G e r m a n participant at that meeting had taken p a r t in it also in his capacity as representative of the B D Z , of which Dyckerhoff was a member.

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CIMENTERIES CBR AND OTHERS V COMMISSION

2670 Further confirmation of BDZ's accession to the agreement setting up the ETF is to be found in M r Steinbach's participation in the meeting of the subgroup on 'stick actions' on 17 March 1987 (see record of that meeting drawn up by M r Marichal (Lafarge), entitled 'Menaces d'invasion chez les cimentiers européens: le point sur la situation au 15 mars 1987 (the threat of European cement producers being overrun: overview of the situation as at 15 March 1987)'; contested decision, recital 2 5 , paragraph 4 7 ; documents 33.126/4858 t o 4861), a subgroup which it had been decided at a meeting of Head Delegates and members of the ETF in Baden- Baden on 9 September 1986 to set up in order t o assist the ETF, which could not on its own investigate the various dissuasive and persuasive measures contemplated in order to counter the arrival of cheap cement on European markets (contested decision, recital 2 5 , paragraph 2 4 ; documents 33.126/18858 and 18862).

2671 In those circumstances, it is immaterial that none of the documents referred to in the contested decision with regard t o the ETF was discovered at the BDZ. Similarly, it is immaterial that none of the documents demonstrates that BDZ informed its members of the unlawful measures adopted in connection with the ETE

2672 In conclusion, the Commission was fully entitled t o consider, in Article 4( 1 ) of the contested decision, that the BDZ had taken part in the agreement setting up the ETF.

II - 1 1 3 7

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2676 Unicem claims to have been unaware that a meeting was being held in Rome on 28 M a y 1986 and never to have k n o w n w h a t had been prepared and decided at that meeting, or at those of Zurich/Céligny and the alleged meetings or H e a d Delegates described in recital 2 5 of the contested decision. Accordingly, the Zurich/Céligny document, which recommended solidarity between the cement producers, had been finalised at a meeting at which Unicem was not present, with a view to another meeting, that in Stockholm on 9 June 1986 at which it was not present either. In those circumstances, that document cannot constitute evidence against it.

2677 Last, Unicem claims not to have participated in any of the actions undertaken in connection with the ETF.

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CIMENTERIES CBR AND OTHERS V COMMISSION

2678 It must, however, be pointed out that, according to the minutes of the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986, it was agreed that M r Albert, of Unicem, was to be a member of two of the five working subgroups, namely the subgroup 'exchange of defensive experiences' and the subgroup 'threats from other countries', set up at that meeting in order to assist the ETF in its anti-competitive task.

2679 M r Albert then took part in the meeting of the subgroup on 'stick actions' on 17 March 1987, the record of which states (recital 2 5 , paragraph 4 7 of the contested decision; document 33.126/4860):

I I - 1139

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/9J, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-S8/95, T-103/95 AND T-104/95

setting-up of the ETF was conceived and brought into being in the framework of Cembureau, of which Unicem was a direct member, could not hide the lack of evidence that Unicem itself had acceded to the agreement before 9 September 1986. The Court must also reject the Commission's argument that Unicem was represented at earlier meetings of, or relating to, the ETF by Italcementi, the Italian Head Delegate, which took part in those meetings: first, Unicem had its own Head Delegate (see paragraph 1409 above) and, second, the Commission cannot adduce any evidence to show that Unicem mandated Italcementi to represent it at those meetings. Article 4(1) of the contested decision must therefore be annulled in so far as it finds that Unicem took part in that agreement before 9 September 1986.

12. Asland

2684 Asland maintains that it t o o k no part either in setting up the E T F or in the actions allegedly decided within the ETF. T h e only evidence of its involvement in the ETF, advanced by the Commission in the contested decision, is its participation in the meeting in Rome on 28 M a y 1986. However, Asland did n o t infringe Article 85(1) of the Treaty merely by being present at that meeting, since it was nothing more than a preliminary meeting for information and general consideration of the actual problems likely t o be of interest t o all European producers, in this case, the artificial support granted by the Hellenic Republic t o its cement producers.

2689 Consequently, there is no need rule on whether Asland's arguments denying its participation in the meeting in Stockholm on 9 June 1986 are well founded or, in the light of what has been stated in paragraphs 2 5 0 7 to 2 5 1 1 , to examine the relevance of its arguments denying any involvement in the actions decided upon in connection with the ETF, and it must be held that, in the absence of any evidence showing that Asland indictated otherwise at the meeting of 28 May 1986 in Rome, Asland expressed its support, from the beginning, for the setting-up of the ETF and its anti-competitive object, or at least gave the other applicants the impression that it supported such a measure.

2690 The Commission was therefore fully entitled to find in Article 4(1) of the contested decision that Asland had participated in the agreement setting up the ETF as from 28 May 1986 (see, to that effect, the case-law cited in paragraph 1353 above).

2691 The fact that some undertakings, whose members appear in the lists of the working subgroups of the ETF set up at the meeting of Head Delegates and representatives of the ETF in Baden- Baden on 9 September 1986, were not found by the Commission, in Article 4(1) of the contested decision, to have committed any infringement cannot make it possible to disregard the infringement which Asland is found to have committed, provided that it has been properly established (see, to this effect, Woodpulp II, cited in paragraph 106 above, paragraph 146). For the foregoing reasons, the Court concludes that the Commission was fully entitled to find in the contested decision that Asland participated in the agreement setting up the ETF.

2695 It must, however, be pointed out that the minutes of the meeting of the H e a d Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 refers to the participation of ' M r P. Rumeu, Cementos Uniland, Spain'. In the light of that fact, and in the absence of any evidence to show that M r Rumeu h a d told the other participants that he was taking part in that meeting in a personal capacity, the Commission was justified in considering that the person concerned, even if he did attend that meeting on account of his special experience in the field, did represent Uniland at that meeting.

2696 It is clear from the notes of the meeting on 6 November 1986 that it was a meeting of 'EEC cement industry representatives' (contested decision, recital 2 5 , paragraph 39; document 33.126/19007). The Commission was therefore entitled to conclude that M r Rumeu had taken part in that meeting not in his personal capacity, but in his capacity as representative of the European cement industry and, therefore, in particular, of Uniland, which at that time employed him.

2697 Having regard to w h a t has been set out in paragraphs 2 6 0 0 and 2 6 0 2 above, and since Uniland merely states that at the two meetings concerned M r Rumeu played a marginal role, but does n o t adduce the slightest evidence showing that he had openly distanced himself from the anti- competitive purpose pursued, the Commission was justified in considering that Uniland had shown its support for the setting-up of the ETF and for its anti-competitive object or at least that it had given the other participants the impression that it supported that measure.

2701 It must, however, be observed that, with regard to Hispacement, the Commission notes the presence of M r Fernandez, a member of that company, at the meetings of 3 t o 5 June 1986, at which the Zurich/Céligny document w a s finalised. This fact was obviously crucial in determining whether Hispacement participated in an infringement found to exist by Article 4(1) of the contested decision. With regard t o Oficemen, the Commission relies not only on the presence of M r Rumeu 'at the Head Delegates meeting ... of 9 September 1986 and 6 November 1986', but also on the presence of a 'Spanish Head Delegate' at the meeting in Stockholm on 9 June 1986, and also on 'the fact that M r Andia [Oficemen] was appointed member of this subgroup [stick measures] at the Head Delegates meeting of 9 September 1986 ... and above all by the fact that the record of the meeting [17 March 1987 of that subgroup] states that M r Andia was present ...' (contested decision, recital 2 9 , paragraph 3).

2702 In any event Uniland's assertions cannot undermine the analysis in paragraphs 2 6 9 5 to 2698 concerning the validity of the Commission's finding that Uniland participated in the infringement referred to in Article 4( 1 ) of the contested decision.

2703 Finally, Uniland maintains that the Commission discriminated against it by finding that in the meetings of 9 September and 6 November 1986 M r Rumeu represented both it and Oficemen, whereas, when it examined the contacts which the representatives of the Spanish and Portuguese industries had had (contested decision, recital 4 9 , paragraph 1), Oficemen alone was described as representing the Spanish industry as a whole, and there was no finding of participation by the undertakings with which the participants in those contacts were associated.

2707 So far as concerns the meeting of the 'defensive measures' subgroup on 17 M a r c h 1987, Oficemen claims that, according t o a statement sworn by M r Andia, the proposal t o appoint him as a member of that subgroup at the meeting of H e a d Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 was m a d e w i t h o u t his knowledge and against his will. Moreover, M r Andia never k n e w that the meeting of 17 M a r c h 1987 was part of the activities of the ETF, of whose existence he was indeed u n a w a r e . Finally, he did not attend that meeting, his flight having been delayed. Therefore, neither he n o r Oficemen could have k n o w n a b o u t the matters debated at t h a t meeting and thus, indirectly, about the existence of the ETF. The fact that M r Andia is mentioned a m o n g those taking p a r t in that meeting might be due t o confusion between persons taking part and persons invited. Similarly, the fact that the record of t h a t meeting contains certain information concerning imports of cement into Spain does n o t , according t o Oficemen, suffice t o prove t h a t M r Andia participated in that meeting, since t h a t information was practically identical t o the information in a handwritten note by the same writer (Mr Marichal) concerning the meeting of the ETF of 11 February 1987. In addition, the record of the meeting of 17 M a r c h 1987 does not relate any spoken contribution m a d e by M r Andia, whereas it does report the speeches of other participants.

2708 Concerning those various points, the Court points out that Oficemen does not deny that a Spanish participant t o o k p a r t in the meeting in Stockholm on 9 June 1986.

2712 It was not possible to put forward M r Andia's name because, among the three Spanish participants in the meeting, there was at least one person performing functions within the Spanish association which, in his opinion, authorised him to put forward the name of the general manager of Oficemen when the ETF working subgroups were being set up. Even if none of the three Spanish participants had, at that time, the official title of Spanish Head Delegate of Cembureau, Oficemen was therefore represented at that meeting, which dealt in turn with the setting-up of the ETF, its anti-competitive purpose, its composition, the organisation of its work, and the various dissuasive and persuasive measures entrusted to its consideration (see paragraph 2 6 0 0 above). In the absence of evidence to the contrary, the Commission was entitled to find that Oficemen had once again expressed its support for the setting-up of the ETF or at least given that impression to the other participants (see to that effect the case-law cited in paragraph 1353 above).

' N e w threat posed by the smallest Greek producer, Xalips. At the m o m e n t the other Greek producers show no wish to offload in Spain. It is thought that they intend thus to avoid provoking the only cement producers capable of routing them in the near East and N o r t h Africa (their principal markets) ...'

2716 C o n t r a r y to Oficemen's submissions, those statements differ fundamentally from the information about imports into Spain contained in the handwritten note by M r Marichal concerning the meeting of the ETF on 11 February 1987 (contested decision, recital 2 5 , paragraph 4 6 ; document 33.126/4911).

2717 In the light of that evidence, the Commission was entitled to find in recital 2 9 , paragraph 3, of the contested decision that M r Andia took part in the meeting on 17 M a r c h 1987 of the working subgroup 'stick actions'.

2718 The remarks made at that meeting by M r Andia on the problem of Greek exports show that he was perfectly aware of the objective assigned to that subgroup, and also of the overall strategy to combat destabilising imports into Western Europe, primarily those of Greece.

2719 In conclusion, the Commission was fully entitled to find in Article 4(1) of the contested decision that Oficemen participated in the agreement setting up the ETE

2720 However, since Oficemen's accession to that agreement is established only as from 9 June 1986, the date of the Stockholm meeting, Article 4(1) must be annulled in so far as it finds that Oficemen participated in the infringement before that date.

2724 Nevertheless, it must be borne in mind that M r Andia, of Oficemen, attended the meeting of the subgroup 'stick actions' on 17 M a r c h 1987 (see paragraphs 2 7 1 5 and 2716 above). Like SFIC through its chairman, M r Laplace, and BDZ through its general manager, M r Steinbach, Oficemen therefore played a direct part in the infringement referred to in Article 4(1) of the contested decision.

2725 T h e fact that the Commission did not find that that infringement had been established in the cases of the Belgian and British associations does not absolve Oficemen of liability for that infringement, since, as follows from the reasoning set out in paragraphs 2708 to 2719 above, the participation of Oficemen in the agreement setting up the ETF has been properly established (see, to that effect, Woodpulp II, cited in paragraph 106 above, paragraph 146).

II-1147

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/9S TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

15. Irish Cement

2726 Irish Cement (T-60/95) denies any direct involvement in the unlawful activities of the E T F .It states that, according to the evidence presented by the Commission in recital 2 5 of the contested decision, the ETF was set up and run by a group of eight major European cement producers. Irish Cement claims that it did not participate in any of their meetings. The presence of its representative, M r Quirke, at the meetings in Baden-Baden on 9 September 1986, in Strasbourg on 10 September 1986 and in Brussels on 6 November 1986 was justified by lawful attempts to lobby members of the Community institutions.

2730 It must, however, be pointed out that Irish Cement acknowledges having been represented by M r Quirke at the meeting of H e a d Delegates and members of the ETF in Baden-Baden on 9 September 1986. While discussions laying the ground for the political meeting the next day with members of the European Parliament may well have taken place in connection with, or on the fringe of, that meeting, the minutes of the meeting are nevertheless exclusively concerned with discussions dedicated to the setting-up and the composition of the ETF, the organisation of its tasks and the consideration of the various dissuasive and persuasive measures entrusted to it (see paragraph 2 6 0 0 above).

I I - 1148

CIMENTERIES CBR AND OTHERS V COMMISSION

2731 Furthermore, Irish Cement was represented at the meeting in Brussels on 6 November 1986. While the notes of that meeting actually show that discussions were held concerning the meeting with Mr Sutherland, they also make it clear that it was agreed that the ETF was to continue to meet and to examine developments in imports into Western European markets of cement from Greece (see paragraph 2602 above).

2732 As has already been pointed out (see paragraph 2 6 0 0 above), the objective of the ETF was set out in the following terms at the beginning of the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986:

'The ETF was set up in order to examine possible "dissuasive" and "persuasive" measures to counter the arrival of cheap cement on European markets (primarily against Greek imports into the United Kingdom) and to submit recommendations to the Head Delegates.'

II - 1149

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

Commission to conclude that Irish Cement had acceded to the agreement from 28 May 1986, the date of the Rome meeting, referred to in recital 25, paragraph 1 of the contested decision, in which Cembureau took part. Article 4(1) must therefore be annulled in so far as it finds that Irish Cement participated in that agreement before 9 September 1986.

2738 Irish Cement goes on to challenge the various items cited by the Commission in recital 2 4 , paragraph 3, of the contested decision as evidence that the ETF was part of Cembureau. It also contends that the Commission incorrectly treated the meetings of H e a d Delegates of the ETF as being the same as meetings of H e a d Delegates of Cembureau.

2739 However, there is n o need to consider whether that line of argument is well founded, as it suffices to point out that it cannot refute the findings in paragraphs 2 7 3 0 to 2 7 3 5 regarding Irish Cement's participation in the meetings described in recital 2 5 , paragraphs 2 2 to 33 and 39 to 4 3 , of the contested decision. Accordingly, that line of argument cannot undermine the conclusion reached in paragraph 2 7 3 6 above as to the correctness of the Commission's finding that Irish Cement participated in the agreement setting up the ETF.

2740 Last, Irish Cement claims that the contested decision gives n o reasons as regards its alleged direct participation in the E T E

force proposals were endorsed and the measures adopted. As stated in recital 44, the fact that the composition of the various bodies may vary from one to another does not mean that all the activities of the parties to such structure are not attributable to all the members, since the structure acts with and is based on the assistance of all the members.'

2744 Sufficient reasons were therefore given in the contested decision for the Commission's finding that Irish Cement infringed the Treaty by participating in the agreement setting up the ETE

16. Italcementi

2745 Italcementi stresses the autonomous and temporary nature of the ETE It challenges the various pieces of evidence on which the Commission bases its case, in recitals 24, paragraph 3, and 5 3 , paragraphs 1, 3 and 7, of the contested decision, in establishing a link between the ETF and the Cernbureau agreement. It adds that, according to the very terms of the contested decision, a considerable number of the alleged parties to the Cembureau agreement did not participate in the ETF agreement found in Article 4.

2746 There is no need to consider whether that argument is well founded, as it cannot refute the Commission's findings in recital 2 5 of the contested decision, which are not challenged by Italcementi, namely, that the Italian undertaking took part in the following meetings:

— the meeting in Rome on 28 May 1986 (contested decision, recital 25, paragraph 1: document 33.126/18771);

— the meeting of the ETF on 8 July 1986 in Geneva (contested decision, recital 25, paragraph 13; documents 33.126/18757 and 18795);

— the meeting of the ETF on 19 August 1986 in Geneva (contested decision, recital 25, paragraph 17; documents 33.126/18757 and 18758 and Annex 15 to the reply to the SO by Aker and EUROC);

— the meeting of the ETF on 9 September 1986 in Baden-Baden (contested decision, recital 25, paragraph 21; document 33.126/18848);

— the meeting of the Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 (contested decision, recital 25, paragraph 23; document 33.126/18857);

— the meeting of the ETF on 21 October 1986 in Geneva (contested decision, recital 25, paragraph 34; documents 33.126/18758, 18895, 18896 and 18900);

— the meeting of EEC cement industry representatives on 6 November 1986 in Brussels (contested decision, recital 25, paragraph 39; document 33.126/19007);

2748 Next, Italcementi claims to have played a marginal role in the ETF. It alleges that it was never involved in the alleged dissuasive and persuasive measures. On account of its purely regional position on the Italian market, it had no interest in participating in such actions, nor any actual opportunity to do so. It had at its disposal neither harbour facilities, nor means of transport, nor outlets through which to channel the products that it might have bought from Greek cement producers. The only things that could possibly be laid to its account are the drawing up of a report on the possibility of exporting to Greece and the holding of shares in Interciment for 21 months. However, neither of these activities led it to infringe Article 85(1) of the Treaty. Italcementi also denies having taken part in concerted practices and an agreement intended to lure Calcestruzzi, a major Italian customer, away from Greek producers.

2749 In the light of what has been set out in paragraphs 2 5 0 7 to 2511 above there is no need to assess the merits of Italcementi's submissions, first, denying any unlawful involvement in the actions contemplated by the ETF and, second, defining the scope of its commitment to Interciment, as it must be pointed out that, according to the evidence set out in paragraph 2746 above, Italcementi is one of the undertakings at the origin of the ETF initiative and of the programme of dissuasive and persuasive measures envisaged in order to combat destabilising imports into Western Europe and that it then took part, in its dual capacity as direct member of the ETF and a Head Delegate, in all the meetings of or concerning the ETF organised between 17 June 1986 and 11 February 1987. The argument of the Italian undertaking that its role was marginal must therefore be rejected.

2753 T h e date of 2 8 M a y 1986 is the date of the Rome meeting, as regards which the Commission finds in recital 2 5 , paragraph 1, of the contested decision that the representatives of eight major European cement producers, including Italcementi, agreed inter alia t o 'take rapid stock of the defensive and support measures to counter the decision of the Greek cement industry t o export to Western Europe' a n d t o create a working party 'to prepare ... documents on possible defensive measures'. Those are sufficient reasons for the decision of the Commission t o find, in Article 4(1), that Italcementi participated in the agreement setting up the ETF as from 28 M a y 1986. T h e fact that the Commission finds, in recital 2 5 , paragraph 10, of the contested decision, that it w a s 'formally' decided t o set up the ETF at the meeting in Stockholm on 9 June 1986 cannot, in this regard, be deemed to show inadequate or contradictory reasoning on that point.

2754 Italcementi's argument must therefore be rejected.

17. Aker and E U R O C

2755 Aker and E U R O C claim that they did n o t take part in any meeting of the ETF and that Scancem took part in several meetings of or concerning the ETF in order t o safeguard its o w n interests, not to represent those t w o applicants.

2759 At the hearing, Aker and E U R O C acknowledged that Cementa, Norcem and Scancem represented them at the meetings in which they took part during the period under consideration. In the person of M r Linderoth, Cementa took part in the meeting in Stockholm on 9 June 1986 (contested decision, recital 2 5 , paragraph 9). In the person of M r Rabi, Norcem took part in the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 (contested decision, recital 2 5 , paragraph 2 3 ; document 33.126/18857). In the person of M r Ulestig, Scancem took part in the meetings of the ETF of 19 August 1986 (contested decision, recital 2 5 , paragraph 14; Annex 15 to the reply to the SO by Aker and E U R O C ) , of 21 October 1986 (contested decision recital 2 5 , paragraph 34; document 33.126/18895) and of 11 February 1987 (contested decision, recital 2 5 , paragraph 4 5 ; document 33.126/18933).

2762 O n the contrary, they are contradicted by the extract from the record of the meeting of the EPC on 13 M a y 1987, drafted by M r Marshall of Blue Circle, and recited in recital 24, paragraph 3, of the contested decision (documents 33.126/11344 and 11345):

'Cembureau Task Force. I was approached on two occasions to try to make sure that the Cembureau Task Force continues in operation as a means of keeping up our pressure on the Greeks. Scancem ... felt that as 8 0 % of the cement to the USA is handled by four European organisations — Blue Circle, Lafarge, Holderbank and Scancem — some pressure could be brought to bear on the Greeks.'

2763 Moreover, as will be found in paragraph 3013 below, Aker and E U R O C agreed to take up shares in Interciment, which wholly undermines their argument that their presence at the meetings referred to in paragraph 2 7 5 9 above was due to their concerns regarding the appearence of Interciment on the scene.

2764 In conclusion, the Commission was justified in finding in Article 4(1) of the contested decision that Aker and E U R O C took part in the agreement on the setting-up of the E T F .However, since there is no evidence in the decision to support the conclusion that Aker and E U R O C had acceded to the agreement setting up the ETF before the meeting in Stockholm on 9 June 1986, Article 4(1) of the decision must be annulled in so far as it finds that they participated in that agreement before that date.

2765 Aker and E U R O C also deny that there was any link between the ETF and Cembureau. They challenge the evidence put forward on this point by the Commission in recital 24, paragraph 3 , of the contested decision, stating that there is an almost total absence of correspondence between the meetings of the ETF and the meetings of Cembureau, or between the participants in the ETF meetings and the H e a d Delegates of Cembureau. They add that if, as the Commission claims, the ETF were an emanation of Cembureau, constituting a breach of Article 85(1) of the Treaty, that breach should have been charged against all the companies represented at Cembureau level.

2769 In recital 5 3 , paragraph 12, of the contested decision, and in its defence in Case T-87/95, the Commission claims that Cementir demonstrated its support for the general ETF agreement by participating in 'one of the most important measures decided on by the [ETF], namely, the measures to defend the Italian market'.

2770 However, as has been stated (see paragraphs 2 5 0 7 to 2 5 1 1 above), Article 4( 1 ) of the contested decision refers only to the agreement relating to the setting-up of the ETE, and not to the 'single and continuous agreement relating to the setting-up of the Cembureau Task Force or European Task Force and the various measures adopted at the meetings to eliminate imports into Western Europe and, in particular, to prevent imports of Greek cement into the Member States' (recital 5 3 , paragraph 9). Furthermore, it must be observed that the Commission has not attributed to Rugby, Castle, Titan and Heracles responsibility for that agreement, even though it finds in Article 4(4) that they participated 'within the framework of [the ETF]' [recital 6 5 , paragraph 3(c) of the contested decision] in persuasive measures (carrot actions) contrary to Article 85(1) of the Treaty. In this regard, the Commission (reply of 22 June 1998 to the written question of the Court of 2 7 May 1998 in Case T-87/95) explains that those four undertakings did not take part in any of the meetings described in recital 25 of the contested decision, so that it considered that it did not have sufficient evidence of their acquiescence in the setting-up or the existence of the ETF itself.

2775 The Commission also relies upon the fact that Cementir was a direct member of Cembureau.

2776 However, even if the ETF were, as the Commission claims (contested decision, recital 2 4 , paragraph 3), an emanation of Cembureau, that would not support the conclusion that Cementir had agreed to the setting-up of the ETE As set out in paragraph 1553 above, membership of a professional association, in this case Cembureau, does not mean that the member concernedis automatically responsible for the various unlawful acts committed within that association, doing away with the need to show personal participation by the member in those unlawful acts.

2777 The Commission then relies on the fact that the ETF was, in its opinion, an application of the Cembureau agreement, to which Cementir had subscribed.

2778 However, even if that assessment were correct, the Commission would not thereby be relieved of the need to adduce evidence of Cementir's individual participation in the infringement found to exist in Article 4(1) of the contested decision. To follow the Commission's argument would be to take the view that all the undertakings and associations of undertakings which had actually subscribed to the Cembureau agreement should have been held responsible for the infringement concerning the agreement setting up the ETF, without any need for further inquiries as to whether they had really participated individually in that infringement.

2779 Finally, the Commission alleges that Cementir took part in the meeting of H e a d Delegates held at the same time as the Cembureau general assembly in Luxembourg on 2 5 to 28 M a y 1987, at which the destiny and future role of the ETF were discussed (contested decision, recital 2 5 , paragraph 48).

2783 In Article 4(1) of the contested decision, the Commission finds that as from 2 8 M a y 1986 there was a n infringement relating t o the agreement setting u p the ETF, but does n o t indicate the date on which t h e infringement ended.

2784 It has already been found that, by taking 28 May 1986 as the starting date of that infringement for CBR, Aalborg, BDZ, Unicem, Uniland, Oficemen, Irish Cement, Aker and E U R O C , the Commission incorrectly assessed the starting date of their participation in that infringement. T h a t date must thus be set at 9 June 1986 for CBR (see paragraph 2 6 0 4 above), for BDZ (see paragraph 2 6 7 3 above), for Oficemen (see paragraph 2720 above), for Aker and E U R O C (see paragraph 2 7 6 4 above), and at 9 September 1986 for Aalborg (see paragraph 2 6 5 7 above), for Unicem (see paragraph 2 6 8 3 above), for Uniland (see paragraph 2 6 9 9 above) and for Irish Cement (see paragraph 2 7 3 7 above).

2785 The Court must now examine the arguments put forward by some of the applicants referred to in Article 4(1) of the contested decision in order to challenge the Commission's finding that the infringement lasted for an indefinite period.

2786 First, Aalborg alleges that, contrary to Article 190 of the Treaty, the Commission failed to explain why it had found Aalborg to be involved in the ETF after 9 September 1986, the date of the meeting of Head Delegates and representatives of the ETF in Baden-Baden, at which Aalborg could have heard references to the ETF for the last time. Italcementi claims that the

I I - 1159

'The infringement committed is all the more serious as it lasted a long time, and the Commission is entitled to presume that it is still continuing. Despite Holderbank's statement that the Task Force was dissolved at the end of M a y 1987, the Lafarge m e m o r a n d u m of 1 June 1987 states that "the mission of the team formed just a year ago will in future be strictly limited to exchanges of information on very specific subjects. The British were in favour of winding it up, but the Swiss finally convinced their colleagues that this would be a mistake: as the tool had been forged it might as well be kept ready for use". It appears therefore that "the t o o l " was "kept ready for u s e " after M a y 1987. This is all the more probable as the measures designed t o absorb the "destabilising" cement were implemented up to 1991 (see recital 28) and as the Joint Trading Company was dissolved only on 26 M a r c h 1993 (see paragraph 16 of recital 26).'

2789 Subject always to consideration of the arguments disputing the merits of that assessment by the Commission (see paragraphs 2791 to 2 8 1 5 below), those statements constitute sufficient reasons for the Commission's decision in Article 4(1) of the contested decision to find that the infringement arising from the agreement on the setting-up of the ETF, in particular with respect to Aalborg and Italcementi, lasted for an indefinite period.

2790 The arguments of Aalborg and Italcementi alleging failure to provide reasons for the measure in question must therefore be dismissed.

2791 Second, CBR, Lafarge, Unicem, Uniland, Oficemen, Italcementi and Holderbank maintain that the ETF was w o u n d up at a meeting held at the end of M a y 1987 at the same time as the Cembureau general assembly, as stated by Holderbank in 1990 in reply to a request by the Commission for information (contested decision, recital 2 5 , p a r a g r a p h 4 8 ; document 33.126/18760). CBR and Holderbank state that that winding up was justified because the ETF's lobbying activities had led to the anticipated results. Holderbank also points out that, since the ETF was an informal group, the Commission could not d r a w any inference from the

2794 The Court points out in that regard that, according to the documents put forward by the Commission in recital 25 of the contested decision, the ETF met until February 1987 in order to examine, inter alia, the dissuasive and persuasive measures contemplated in order to eliminate imports of cement from Greece into Western Europe (contested decision, recital 2 5 , paragraphs 45 and 4 6 ; documents 33.126/18937 t o 18944 and 4 9 1 1 to 4913). T h e subgroup on 'stick actions' held a meeting on 17 March 1987 at which the participants took stock of the threatened invasion of cement, particularly from Greece, onto their respective markets, setting out where appropriate the measures adopted or contemplated to counter such threats (contested decision, recital 2 5 , paragraph 4 7 ; documents 33.126/4858 to 4861).

2795 It is clear from the information supplied by Holderbank in response to a request for information from the Commission (reply 7b of 7 May 1990; contested decision, recital 2 5 , paragraph 4 8 ; document 33.126/18760), and from an internal note of Lafarge of 1 June 1987 (same paragraph; documents 33.126/4487 to 4490), that the fate of the ETF w a s discussed at a meeting held in Luxembourg at the end of M a y 1987.

I I - 1161

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/9S TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/9S, T-103/95 AND T-104/95

2796 Those various facts demonstrate that, until the end of M a y 1987, the concurrence of wills which led to the setting-up of the ETF continued to exist. O n the other hand, it cannot be considered that such a concurrence of wills continued beyond that date.

2801 The Court points out that the case which gave rise t o the abovementioned opinion concerned a concerted practice between distributors, whereby imports into France of products from Germany and the United Kingdom were prevented with a view to maintaining a higher price level in the M e m b e r State in question. In his Opinion (p. 1941), Sir Gordon Slynn states: '... A concerted practice is capable of continuing in existence, even in the absence of active steps to implement it. Indeed, if the practice is sufficiently effective and widely k n o w n , it may require n o action to secure its implementation. Cases may arise in which the absence of any evidence of measures taken to implement a concerted practice may suggest that the practice has come to an end. That, however, is a matter of evidence, which must depend upon the circumstances of the case ... It is perhaps of interest to observe the decision of the United States Court of Appeals in

II - 1 1 6 2

CIMENTERIES CBR AND OTHERS V COMMISSION

US v Strömberg and Others, 268 F 2d.256, in which it held that a conspiracy, once established, is presumed to continue until the contrary is shown.'

2802 Sir Gordon Slynn's approach does not therefore amount to an assertion that, once the Commission has proved the existence of an agreement, decision, or concerted practice contrary to Article 85(1) of the Treaty, it is automatically for the parties involved in that agreement, decision or concerted practice to prove that it has come to an end. Such a reversal of the burden of proof is possible only where the case in question possesses particular features. In any event, it is clear from the case-law that it is for the Commission to prove not only the existence of the agreement or concerted practice but also its duration (Dtmlop Slazenger v Commission, cited in paragraph 270, paragraph 79).

2807 With regard to Uniland, Oficemen, Italcementi and Blue Circle, it must be stated that the fact that document 33.126/18950, cited by the Commission in the contested decision, recital 2 5 , paragraph 4 8 , cannot be relied on against them (see paragraph 376 above) in order to demonstrate that attempts were made to hold meetings of the ETF between March and M a y

I I - 1163

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/9J, T-50/95 TO T-65/9S, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1987 cannot undermine the analysis in paragraphs 2794 to 2806 above concerning the duration of the infringement found in Article 4(1) of the contested decision. As explained in paragraph 2795 above, it is apparent from documents 33.126/18760 and 4487 to 4490 that the fate of the ETF was discusseci at a meeting held in Luxembourg at the end of May 1987, which proves that the concurrence of wills that emerged on the setting-up of the ETF had continued until that meeting.

2808 Nor, as regards Holderbank, can the fact that Lafarge's internal note of 1 June 1987 (documents 33.126/4487 t o 4490), cited in paragraph 2 7 9 5 above, cannot be relied upon against it (see paragraph 3 7 7 above) invalidate the analysis in paragraphs 2 7 9 4 to 2 8 0 6 above concerning the duration of the infringement found in Article 4(1) of the contested decision. According t o statements made by Holderbank itself t o the Commission (contested decision, recital 2 5 , paragraph 4 8 ; document 33.126/18760) 'it was decided at an informal meeting taking place at the same time as a Cembureau assembly in Luxembourg t o wind u p the ETF at the end of M a y 1987', which demonstrates that the concurrence of wills which had led to the setting-up of the ETF had continued until that date.

2813Last, Uniland states that there is no evidence to extend its participation in the ETF beyond 6 November 1986, the date of the second and last meeting at which Mr Rumeu took part at that period.

2814It must, however, be stated that the various applicants have put forward no evidence to show that, after subscribing to the agreement setting up the ETF, they openly made known to the other participants, for example at the last meeting in which they took part at that time, their disapproval of the ETF's continued consideration of dissuasive and persuasive measures intended to eliminate imports of cheap cement into Western Europe.

2815 The Court therefore finds that they supported that measure until its end, as has been assessed in paragraphs 2794 to 2806 above, or at least gave the other participants the impression that they did so (see, to that effect, the case-law cited in paragraph 1353 above).

E — Access to the file

1. Preliminary observations

2816 Cembureau (T-26/95), Dyckerhoff (T-35/95), SFIC (T-36/95), Ciments Français (T-39/95), Heidelberger (T-42/95), Lafarge (T-43/95), Aalborg (T-44/95), BDZ (T-48/95), Unicem (T-50/95), Asland (T-55/95), Uniland (T-58/95), Oficemen (T-59/95), Irish Cement (T-60/95), Italcementi (T-65/95), Holderbank (T-68/95), Aker (T-70/95), EUROC (T-71/95) and Blue Circle (T-88/95) put forward a series of observations based on the documents which they were able to consult as a result of the measures of 2 October 1996 and 18 and 19 June 1997 concerning access to the file. They maintain that, by granting them only limited access to the SO and to its investigation file during the administrative procedure, the Commission denied them access to exculpatory documents and thus infringed their rights of defence when it found the infringement alleged against them in Article 4(1) of the contested decision.

2818 In its submissions of 10 February and 28 November 1997, Cembureau claims that in all the documents which it has been able to consult as a result of the measures of organisation of procedure referred to in paragraph 2 8 1 6 above there is n o evidence to connect it to the ETF other than, first, the expression ' H e a d Delegates' used sporadically and imprecisely in certain documents and, second, the very limited role played by two members of its staff in the first two meetings preparatory to the ETF. O n the contrary, the evidence contained in the file relating to the United Kingdom support the conclusion that the 'Greek problem' in n o way involved Cembureau, since it was dealt with by the C M F and individual undertakings (documents 33.126/17160 to 1 7 1 7 2 , 1 7 1 7 8 and 17179), through contacts at the highest political level with the United Kingdom Government, and through the intervention of the latter (33.126/17157 to 17165, 17180 to 17184, 17191 to 17194, 17219 to 17225, 17624, 17625, 17631 to 1 7 6 3 3 , 17635 to 17638, 17641 to 17654, 10827 and 10828). Those documents, and numerous others (33.126/11188, 11189, 10842 to 10844, 11072, 10827, 10828, 11123 to 11127, 11130, 1 1 1 3 1 , 11165 to 11169, 11171 to 11175, 11178, 11179, 11000, 1 1 0 0 1 , 11243, 11244, 7725 to 7740, 15351 to 1 5 3 5 3 , 1 5 3 6 3 , 15355, 15388, 15364 to 15367, 16087, 16088, 16091 to 16110 and 16122 to 16126) further illustrate importance of the awareness campaign and pressure brought to bear on the British authorities (government and parliament) and on members of the European Parliament, as well as contacts with the Commission, in response to the Greek problem. The file concerning the United Kingdom also shows that the Greek Government had recommended to its cement industry that it should make contact with its British counterpart in order to resolve the Greek problem (documents 33.126/17178 and 17179). The solution of that problem was not therefore the result of a measure implementing the Cembureau agreement. In Cembureau's view, it is also significant that France, when confronted with the problem raised by imports from Greece, made contact not with Cembureau, but with the Government of the United Kingdom and the DTI (see paragraph 4 1 6 above) (documents 33.126/17219 to 17225). Cembureau considers that if all those documents had been made available to it during the administrative procedure it would have been able to point to the complete absence of any proof of its participation, through its staff, its managers, committees or representative bodies, in the above actions and political pressures and to disprove the Commission's allegations that Cembureau played a central role in the organisation and activities of the ETE

2821 To conclude, they w o u l d n o t have had even a small chance of altering the o u t c o m e of the administrative p r o c e d u r e . C e m b u r e a u has, therefore, n o t p r o v e d t h a t there w a s an infringement of its rights of defence in this regard during the administrative p r o c e d u r e .

3. Case T-35/95 Dyckerhoff \ Commission

2822 Dyckerhoff claims t h a t the d o c u m e n t s t h a t it w a s able t o consult following the measures of organisation of p r o c e d u r e referred t o in p a r a g r a p h 2 8 1 6 a b o v e w o u l d have s u p p o r t e d its case, d u r i n g the administrative procedure, as to the lawfulness of the ETF's activities and the role which it played in t h e m .

2823 It p u t s forward nine a r g u m e n t s in t h a t regard.

2824 First, it states, in its observations of 7 February 1 9 9 7 , t h a t there is n o m e n t i o n of its n a m e in the detailed report regarding the ETF in minutes d r a w n up by Heracles ( d o c u m e n t s 3 3 . 1 2 6 / 1 9 8 7 5 to 1 9 8 8 7 ) , which goes to s h o w t h a t it w a s n o t involved in the ETF.

2825 It must, however, be pointed o u t t h a t the observations which Dyckerhoff m i g h t have presented during the administrative p r o c e d u r e on the basis of those d o c u m e n t s could n o t have refuted the findings m a d e by the Commission in recital 2 5 of the contested decision, p a r a g r a p h s 1, 9, 2 3 and 3 9 , concerning its participation in the meeting in R o m e o n 28 M a y 1 9 8 6 , in the meeting in Stockholm on 9 J u n e 1 9 8 6 , in the meeting of H e a d Delegates a n d representatives of the E T F in Baden-Baden on 9 September 1 9 8 6 , or in the meeting of representatives of the E u r o p e a n cement

2828 Third, Dyckerhoff, in its observations of 7 February 1997, puts forward the agenda of a meeting of the SFIC (document 33.126/14828), which, it claims, shows that, at the time of the Greek export problem, there were individual and independent initiatives by producers and national associations. Those facts therefore contradict the existence at that time of any European collusion against imports from Greece.

2829 Dyckerhoff adds that such individual and independent initiatives were also aimed at imports from markets other than the Greek market, which shows that it was not necessary to organise any concerted European action to counter imports from Greece. First it quotes documents concerning the French market (documents 33.126/5695 to 5 6 9 8 , 5 6 3 7 to 5 6 4 0 , 5651 to 5 6 5 6 , 5 6 5 7 to 5 6 5 9 , 5 7 0 9 to 5713 and 5714 to 5724). It questions why it should have been necessary to combat imports from Greece with the aid of the ETF's considerable resources, whereas similar imports from other markets were discussed only at national level. It then refers to documents concerning the Spanish market, namely, minutes of Oficemen (documents 33.322/1311 to 1318) and minutes of Asland's board meeting (documents 33.322/1604, 1607 and 1608), in which only national measures to counter imports were contemplated.

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2830 It must however be pointed out that Dyckerhoffs observations, even if they could have been put forward during the administrative procedure, could not have refuted the bundle of documents referred to in recital 25 of the contested decision on the basis of which the Commission rightly found, in recital 5 3 , that the appearance of the 'Greek problem' had given rise, over and above the individual initiatives on certain markets, to the birth of a multilateral agreement between various undertakings, including Dyckerhoff, and of associations of European undertakings concerning the setting-up of the ETF for the purposes of considering dissuasive and persuasive measures capable of eliminating imports of cheap cement into Western Europe, primarily those from Greece.

2835 Fifth, in its observations of 7 February 1997, Dyckerhoff refers to a series of documents (documents 33.126/14832, 17129, 17140, 17171, 17176, 17187, 17193, 17196, 17071, 17158 and 19875 to 19887) to demonstrate that the national associations, in particular the French and the British, had made representations to their State authorities to make known their concern with regard to imports from Greece. In that connection, it points out that it has always claimed (reply to the SO, p. 60, and application, p. 92) that the activities of the ETF in which it

I I - 1169

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

participated related exclusively to the lodging of an anti-dumping complaint with the Commission. Moreover, it refers to, but does not append to its observations, Oficemen's minutes dealing with imports from Tunisia, giving an account of steps to be taken with reference to national and Community public authorities.

2837 However, it must be pointed out that, contrary to w h a t Dyckerhoff contends, documents 33.126/11028 to 11034 do not shed a different light on the content of the two meetings in Baden-Baden on 9 September 1986, described in contested decision, recital 2 5 , paragraphs 2 1 to 3 3 . The handwritten notes contained in those documents simply refer to the fact that a meeting was held in Baden-Baden on 9 September 1986, without specifying the subject-matter, and that a meeting was held in Strasbourg the next day with members of the European Parliament. T h a t information does not therefore contradict the findings based on the documents referred to in recital 25 of the contested decision, paragraphs 21 to 3 3 , namely, that in Baden-Baden on 9 September 1986 there was first a meeting at midday of the ETE devoted to the preparation of the meeting of H e a d Delegates and of the representatives of the ETF and then, at the end of the afternoon, the later meeting, during which the setting-up of the ETF, its anti-competitive object, its composition and organisation of its work, and the various dissuasive and persuasive measures entrusted to its consideration were in turn examined.

2838 The same assessment holds for the Blue Circle fax of 17 September 1986 (document no 33.126/11079): the fact that that document refers only to political considerations following the meeting held in Baden-Baden the previous week cannot refute the findings referred to in the previous paragraph.

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CIMENTERIES CBR AND OTHERS V COMMISSION

2841 However, in the contested decision, the Commission states in footnote 113 that '[w]hen Greece joined the Community, its cement industry was receiving a considerable a m o u n t of State aid', before referring to a number of decisions which it took in relation t o that aid, during and after the period in which the ETF w a s operational. In the contested decision, recital 5 3 , paragraph 8, it discusses in detail the argument put forward by Lafarge at the hearing on 12 March 1993 that 'Article 85(1) [of the Treaty] was not applicable to the members of the ETF because they were acting in legitimate self-defence against exports by the Greek producers, w h o were receiving unlawful aid from the government of their country'. T h e Commission had therefore correctly understood, during the administrative procedure, the economic background to the reactions of the European producers to imports from Greece. Accordingly, any observations that Dyckerhoff might have been able to formulate then on the basis of documents 33.126/19882 and 19884 could only have repeated observations already duly taken into account in the contested decision.

2842 Seventh, Dyckerhoff puts forward, in its observations of 5 January 1998, several Blue Circle telexes concerning the planning of the ETF meeting of 10 September 1986. Dyckerhoff is not mentioned in any of those telexes, which, in its view, shows that it did not take part in the planning and preparation of the alleged activities of the ETF (documents 33.126/11010 to 11012). Dyckerhoff raises the same argument on the basis of the telexes relating to the ETF meetings on 21 October 1986, January, March and May 1987 (documents 33.126/15343 to 15347, 18874 to 18894, 18901 to 18918, 18950, 18951, 18953 to 18955 and 18956 to 18960).

2845 Eighth, in its observations of 5 January 1998 Dyckerhoff mentions an internal Blue Circle note of 28 August 1986 (document 33.126/11013), which relates Blue Circle's unsuccessful efforts to meet imports from Greece on a European front. It claims that those statements show that, apart from its political initiatives, Dyckerhoff did not participate in the adoption of collective measures with other European producers.

2846 However, contrary to Dyckerhoff's submissions, the document in question does not relate a failure by Blue Circle in its attempt to create a common European front to counter imports from Greece. It merely refers to the great difficulties, on the one hand, of proving 'collusion between the Greek producers' and, on the other hand, reaching a collective agreement with the Greek industry.

2847 In any event, the observations that Dyckerhoff might have put forward during the administrative procedure on the basis of that document could not have precluded the findings, referred to in paragraphs 2825 and 2830 above concerning the setting-up of the ETF in mid- 1986 in order to respond with a common front to the imports threatening the stability of the various Western European markets, and Dyckerhoff's participation in that agreement.

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2848 Ninth, in its observations of 5 January 1998 Dyckerhoff claims that, according to a Holderbank letter addressed to members of the ETF, it did not collaborate in the follow-up and implementation measures of the Baden-Baden meeting, in which it had taken part solely in order to prepare for the meeting with the members of the European Parliament. Its name is not mentioned on the list of recipients of that letter (documents 33.126/18870 to 18873).

2851 SFIC claims in its observations of 10 February 1997 that a number of documents in the British file (documents 33.126/17157 to 17159, 17163, 17164, 17171, 17172, 17182 and 17193) show that the CMF had undertaken numerous representations to its national administration in order to bring about the adoption of measures to deal with imports from third countries into the Community or from Greece. The CMF thus made contact with the Minister for Trade and the OFT (see paragraph 1147 above) in order to consider governmental action and the support that it could offer for such action, by informing the DTI in particular (see paragraph 416 above) of the market situation with respect to imports from Eastern Europe (documents 33.126/17220, 17623 to 17625, 17628 to 17630, 17635 to 17638 and 17641 to 17653). With regard to the question of imports from Greece, several documents in the United Kingdom file, in particular the minutes of the meeting of the CMF on 8 October 1986 (documents 33.126/17168 and 17178), mention direct contacts between the United Kingdom Government and the Greek Government, which goes to support SFIC's argument that that question was likely to create a bilateral 'lobbying' response, rather than the implementation of agreements or concerted practices. In addition, those documents tend to support the evidence of the size of the 'Greek problem' at the economic level. Among the documents in the United Kingdom file, the SFIC refers to the minutes of the meeting of the CMF on 3 June 1987, which reports contacts entered

II - 1173

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2852 In its observations of 7 January 1998, the SFIC cites a series of documents (documents 33.126/2088 to 2096, 2122 to 2125, 7717 to 7722, 11003, 11004, 11021, 11022, 11052, 11053, 11066 to 11068, 11077 to 11079, 11122 to 11124, 11130, 11131, 11180, 11181, 15388, 16436, 16437, 16467, 16468, 16469, 16470, 16471, 16472 to 16474, 16488, 16489, 16490, 16508 and 16509) to support its explanations supplied during the administrative procedure, that its actions and those of the other European associations and undertakings to deal at European level with the unlawful exports from Greece, had consisted in political initiatives made to the government and Community authorities, with the particular support of members of the European Parliament, initiatives which were moreover successful. The SFIC then refers again to the minutes of the CBR's management committee meeting of 29 March 1988 (documents 33.126/7635 to 7637), which reflect the relative passiveness of the Commission with regard to the question of the Greek cement industry, in spite of the fact that some of that industry's practices were not compatible with Community rules. That document would have helped the SFIC to have a better understanding of the question of imports into Europe of cement from Greece and to justify the necessity of the lobbying activities subsequently carried out, both by trade associations and by various cement producers. Finally, the SFIC refers to the extract from a document sent by Blue Circle to the Commission on 8 December 1989 (documents 33.126/13633 to 13648), which shows that the documents concerning imports from Greece, seized by the Commission's agents at Blue Circle, 'entirely support Blue Circle's contention that although there were discussions about a variety of possible solutions to the problem of the Greek policy of exporting heavily subsidised cement to the United Kingdom, no agreement or arrangement with other cement producers was ever concluded or implemented' (document 33.126/13643). According to the SFIC, the information in that statement ought, in order to observe its rights of defence, have been made available to it during the administrative procedure as it constituted exculpatory evidence.

2855 Any observations that the SFIC might have made during the administrative procedure on the basis of the CBR document (documents 33.126/7635 to 7637) would, like the observations put forward by Lafarge at the hearing on 12 March 1993, have attempted to justify, on the grounds of an alleged state of legitimate self-defence, the collective measures adopted by the European producers against imports from Greece, observations on which the Commission expressed its view in the contested decision, recital 5 3 , paragraph 8.

2856 Finally, the observations which the SFIC might have put forward during the administrative procedure on the basis of Blue Circle's denials (documents 33.126/13633 to 13648), an undertaking directly involved in the ETF, could quite plainly not have prevailed over the bundle of documents referred to in recital 25 of the contested decision on the basis of which the Commission rightly concluded that there was an 'ETF' coalition and that the SFIC was involved in that anti-competitive agreement.

2857 In conclusion, there was not even a small chance that the SFIC's various observations could have altered the outcome of the administrative procedure. SFIC has not therefore established the existence of an infringement of its rights of defence in that regard during the administrative procedure.

5. Case T-35/95 Ciments Français v Commission

2858 In its observations of 10 February 1997, Ciments Fiançais claims that certain documents relating to the chapters of the SO concerning Greece, the United Kingdom and Italy would have enabled it to establish that, contrary to the claims of the Commission, the actions taken to counter imports from Greece had not been taken by the ETF or by the Head Delegates or on the basis of an agreement between Cembureau and several European producers.

2861 In its observations of 21 November 1997 Ciments Français mentions several documents which show that the ETF and the meetings of the European cement industry representatives had the sole purpose of organising lobbying activities at national and Community level, at the prompting of the British producers, in order that the subsidies for exports from Greece to the rest of the Community might be brought to an end (documents 33.126/18961, 16494, 16495, 16493, 16508, 16489, 16490, 16469, 18962, 18963, 16463, 11021, 11022, 11052, 11053, 18972, 16443, 11079, 16436, 16437, 11123 to 11126, 11165 to 11167, 11171 to 11175 and 19014 to 19016). Furthermore, some of those documents confirm that the only role played by Mr Laplace, the president of Ciments Français and, at the time, president of the SFIC, was to represent the French industry in those political initiatives (documents 33.126/18962, 18963, 11021, 11022, 11052 and 11053).

'Even if M r Laplace did, like other representatives, participate in his capacity as President of an Association or chairman of a committee, he could not, in attending the meetings, disregard the fact that he was the chairman of Ciments Français. His presence therefore ensured that SFIC and the Committee, together with the company of which he was chairman, had a role within the task force.'

2865 The observations of Ciments Français set out in paragraph 2 8 6 1 , stressing that the only role played by M r Laplace was to represent the French industry in the political actions taken in connection with the Greek question, would not have added anything new to the debate. They could not therefore have provided a basis for excluding the responsibility of Ciments Français in the infringement found in Article 4(1) of the contested decision.

2866 In conclusion, there was not even a small chance that Ciments Français' observations could have altered the outcome of the administrative procedure. Ciments Français has therefore not established an infringement of its rights of defence in that regard during the administrative procedure.

6. Case T-42/95 Heidelberger v Commission

2868 The Court points out, however, that the observations which Heidelberger could have made during the administrative procedure on the basis of those various documents in order to establish its alleged lack of interest in the measures to counter imports from Greece could not have refuted the finding made by the Commission in the contested decision, recital 2 5 , paragraph 1, concerning its participation in the meeting in Rome on 28 M a y 1986, at which it was agreed to respond rapidly and collectively to the decision of the Greek cement industry to export 2 million tonnes of cement to Western Europe, a decision felt to be a 'very serious problem' for 'all the markets' (document 33.126/18771). Those observations could not therefore have provided a basis for excluding the responsibility of Heidelberger in the infringement found in Article 4(1) of the contested decision.

2869 In conclusion, there was not even a small chance that any of Heidelberger'sobservations could have altered the outcome of the administrative procedure. Heidelberger has not therefore established an infringement of its rights of defence in that regard during the administrative procedure.

7. Case T-43/95 Lafarge v Commission

2870 Lafarge claims that access to the whole of the SO and to the Commission's investigation file would have enabled it successfully to substantiate its case during the administrative procedure on four specific points concerning the head of claim relating to the setting-up of the ETF: the fact that there was no European cartel to combat imports from Greece; the economic background and the political dimension to the 'Greek problem'; the role played by the ETF in that matter; the Commission's information concerning the discussions within the ETF.

2874 In its observations of 10 February 1997, it refers first to minutes of the C M F meeting on 17 July 1986 (document 33.126/17158), illustrating the political dimension of the Greek problem; second, documents showing the actions undertaken in vain by the British public authorities with regard to the Commission in order to combat the Greek problem (documents 3 3 . 1 2 6 / 1 7 1 6 3 , 17171 and 19880); third, documents referring to the measures taken by the British public authorities with regard to the Greek Government in order to prevent imports of cement from Greece, and which recall in particular the conclusion of an inter-governmental quota agreement (documents 33.126/17168, 17178 and 19878); and, fourth, documents concerning the intervention of the British competition authority, which reveal involvement of the British public administration in their cement industry's manoeuverings in order to counter the threat of subsidised imports from Greece (documents 3 3 . 1 2 6 / 1 7 1 3 3 , 1 7 1 7 1 , 17169, 17168 and 17176). Lafarge then produces two sets of minutes of C M F meetings (documents 33.126/17191 to 17196, in particular 17193), to show that the ETF saw its efforts overtaken by political action, namely the conclusion in December 1986 of an agreement between the Greek and United Kingdom Governments to limit imports into the United Kingdom of Greek cement.

2876 The Court has however already pointed out several times (see in particular paragraph 2 8 1 9 above) that the political dimension of the Greek problem had not escaped the Commission, but that in the contested decision it concentrated solely on the measures which went beyond those political actions (see footnote 115). Moreover, in the contested decision, recital 2 8 , paragraph 13, the Commission refers to the conclusion in December 1986 of an inter-governmental agreement between Greece and the United Kingdom to limit the imports into the United Kingdom of cement from Greece, emphasising that the record of the meeting of the ETF defensive measures subgroup on 17 M a r c h 1987 mentions that 'high policy' agreement.

2877 The Commission had also correctly perceived the State aid elements which prompted the response of the European producers to imports from Greece (see paragraph 2841 above; contested decision, footnote 113). In the contested decision, recital 5 3 , paragraph 8, it rejects the observations put forward specifically by Lafarge at the hearing in M a r c h 1993 to justify those responses by alleging lawful self-defence. For the reasons set out in the fifth and sixth paragraphs of recital 5 3 , paragraph 8, namely, that according to various documents the ETF's purpose was broader t h a n merely to counter imports from Greece, the same fate would necessarily have met Lafarge's argument concerning the existence of a Greek export cartel at the time of the ETE

2878 The observations which Lafarge might have presented during the administrative procedure on the basis of the various documents referred to in paragraphs 2 8 7 4 and 2 8 7 5 above could therefore only have repeated considerations duly taken into account by the Commission in the contested decision. They could not have refuted the objective findings referred to in paragraph 2 8 7 2 above concerning the setting-up of the ETF by a series of producers and associations of European producers — including Lafarge — for the purposes of considering dissuasive and persuasive measures intended to eliminate cheap imports of cement (primarily from Greece) into Western Europe.

2882 As regards, first, documents 3 3 . 1 2 6 / 1 1 0 2 1 , 11022, 11033 to 11039, 11052, 11066 to 11068, 11072 and 11077, which Lafarge tries to link to the content of the ETF meeting in Baden-Baden on 9 September 1986 referred to in the contested decision, recital 2 5 , paragraph 2 1 , those documents show at most that several meetings took place in Baden-Baden on 9 September 1986 and in Strasbourg on 10 September 1986. According to document 3 3 . 1 2 6 / 1 1 0 3 8 , on 9 September 1986 there took place at midday a meeting of the 'working group', the purpose of which was not specified, and then at 19.00 hours, a meeting of the 'trading group' and also 'strategy discussion for meetings on 10 September', and finally at 21.00 hours, 'dinner for all industry participants'. On 10 September 1986 there took place between 10.30 and 15.00 hours a 'briefing meeting with UK MEPs', then 'lunch with 12 to 15 members of the Economic Monetary Affairs and Industry Policy Committee of the European Parliament'. Neither document 33.126/11038 nor the other documents referred to above contradict the content of the documents referred to by the Commission in the contested decision, recital 2 5 , paragraphs 21 to 3 3 , which show, first, that the meeting in Baden-Baden at midday on 9 September 1986 was an ETF meeting which 'was essentially aimed at preparing a briefing for each subject for the Head Delegate the same day after 18.00' (contested decision, recital 2 5 , paragraph 2 1 ; document 33.126/18848) and, second, that in the late afternoon of the same day, again in Baden-Baden, there was a meeting of the 'Head Delegates and representatives of the ETF', at which the setting-up of the ETF, its anti-competitive purpose, its composition, organisation of its tasks and the various dissuasive and persuasive measures which it had been given to it to consider were referred to in turn (contested decision, recital 2 5 , paragraphs 22 to 32; documents 33.126/18849 to 18862).

2885 Fourth, in its observations of 28 January 1998, Lafarge refers to documents 33.126/11086, 11130 and 11131, in order to show that the Commission had been informed of the discussions of the Greek problem at ETF level. Those documents show that the discussions between the British and Greek industries were linked with the more general discussions of the way in which to resolve the 'Greek problem' and that they had been openly entered into in connection with actions taken to lobby the Commission.

2886 However, the documents in question at most show that the Commission w a s informed at the time of bilateral discussions between British and Greek cement producers in connection with the Greek problem. N o n e of them shows that the Commission had been informed of the setting- up of the ETF with a view t o examining the dissuasive and persuasive measures capable of eliminating imports (particularly those from Greece) into Western Europe. Therefore, the observations which Lafarge could have presented during the administrative procedure on the basis of those documents could n o t have refuted the Commission's finding in recital 2 5 , paragraph 7, of the contested decision that 'none of the firms indicated whether and which Commission officials were informed of the collective actions proposed [at ETF level]'.

2887 In conclusion, there w a s n o t even a small chance that any of Lafarge's observations could have altered the outcome of the administrative procedure. Lafarge has n o t therefore established an infringement of its rights of defence in that regard during the administrative procedure.

presence of its manager, Mr Larsen, at a preparatory meeting in Baden-Baden on 9 September 1986 was explained not by its involvement in any Cembureau task force, but by its participation in Strasbourg on 10 September 1986 in action to raise the awareness of members of the European Parliament of the problem of unlawful subsidies granted by the Hellenic Republic to its cement industry. Those minutes of meetings, which also show developments in the anti-dumping file, would also have been useful to Aalborg in order to support its argument concerning the lawfulness of the cement industry's actions. Finally, Aalborg refers to an internal note concerning the meeting of the Blue Circle 'Management Group' on 19 June 1986 (documents 33.126/10822 and 10823), which reports the threat posed by the imports, in connection with an anti-dumping proceeding, of cement from Greece, and also the proposed lobbying of the British authorities with a view to trying to confine that threat. That note, which relates to the period immediately preceding Blue Circle's invitation to Aalborg to make contact with its national authorities and with the Danish members of the European Parliament in order to obtain action on the unlawful Greek aid, would have been particularly useful to it in snowing the legitimate reasons which led it to participate in the preparatory meeting in Baden-Baden on 9 September 1986.

2890 The Court has, however, already pointed o u t several times (see in particular paragraphs 2 8 1 9 and 2 8 4 1 above) that the Commission had correctly perceived the political dimension and the economic background of the problem connected with imports from Greece (see footnotes 113 and 115 of the contested decision). Any observations that Aalborg might have made on those various aspects of the Greek file could therefore only have reiterated considerations duly taken into account by the Commission in the contested decision. They could not have prevailed over the documents referred to in recital 2 5 of the contested decision on the basis of which the Commission rightly found, in recital 5 3 , that, alongside action to make the national and Community public authorities aware of the matter and to bring pressure to bear upon them, the appearance of the Greek export issue had given rise to the setting-up of the ETF for the purposes of considering dissuasive and persuasive measures capable of eliminating cheap imports of cement (principally those from Greece) into Western Europe.

I I - 1183

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2893 In short, Aalborg's observations could n o t have provided a basis for excluding its responsibility in the infringement found in Article 4(1) of the contested decision.

2894 Second, Aalborg points out in its observations of 10 February 1997, that the internal Blue Circle note mentioned in paragraph 2888 above (documents 33.126/10822 and 10823) emphasised the need t o consult a lawyer in connection with the measures t o be taken concerning the unlawful imports from Greece.

2895 The Court points out in that regard that in the contested decision, recital 25, paragraphs 1 and 7, the Commission notes that the members of the ETF had contemplated seeking the advice of an expert in Community law on the legality of the actions they had in mind. Any observations that Aalborg might have made on this point during the administrative procedure could therefore only have corroborated the evidence already duly taken into account by the Commission in the contested decision. On the other hand, they could not have refuted the finding that follows from the documents referred to in recital 25 of the contested decision namely, that notwithstanding its declared intention, the ETF was set up and charged with considering the dissuasive and persuasive measures intended to eliminate cheap imports of cement into Western Europe, an objective manifestly contrary to Article 85(1) of the Treaty.

I I - 1184

CIMENTERIES CBR AND OTHERS V COMMISSION'

2896 Third, in its observations of 12 January 1998, Aalborg refers to an internal Italcementi note of 15 October 1987 (documents 33.126/2945 to 2948), which states that the name 'ETF' was also used in Italy to designate a form of ad hoc regional cooperation, intended to counter dumped imports of cement from Greece onto the Italian market. This document therefore shows that the ETF did not have the institutionalised character attributed to it by the Commission in the contested decision, and was not the embodiment of the Cembureau agreement.

I I - 1185

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/9J, T-42/9S TO T-46/95, T-48/95, T-50/95 TO T-65/9S, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/9S AND T-104/95

2901 There was thus not even a small chance that any of BDZ's observations could have altered the outcome of the administrative procedure. B D Z has not therefore established an infringement of its rights of defence in that regard during the administrative procedure.

10. Case T-50/95 Unicem v Commission

2902 In its observations of 7 February 1997, Unicem claimed, inter alia, that consultation of the file as a result of the measures of 2 October 1996 revealed that the documents examined did not contain the slightest evidence of general collusion at European level when the problem of imports from Greece arose.

2903 In support of that line of argument, Unicem put forward a series of documents from national files, which it identified by reference, where appropriate, to the pagination used by the Commission in drawing up the measure of 2 October 1996 or to the pagination/numbering of the SO. N o n e of these documents, however, was enclosed with its observations.

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the ECEC in that matter, or any mention of the support which the Commission alleges that the Italian producers gave to the British producers in their campaign against imports from Greece, or any reference to Unicem. The French documents (in particular documents 33.126/17219 to 17225) show that, when France was threatened with imports from Greece, the French Government turned directly to its United Kingdom counterpart. It claims that those facts prove the utterly marginal role played by Cembureau in the resolution of those problems. A good number of documents dealing with imports from Greece, in particular the British documents, show that the lobbying activities undertaken on the initiative of the British producers (in particular Blue Circle) vis-à-vis the political and institutional authorities, and the individual negotiations between certain European producers and the Greek producers, were far and away the most important in resolving the 'Greek problem', which confirms the purely marginal role of the ETF, a body which acted purely as a 'sounding box' for the unilateral initiatives of the British producers. Finally, in the files concerning Spain, Portugal and Germany, Unicem found no document indicating that the imports from Greece had received concerted attention and reaction at European level.

2908 N o r could those comments have precluded the findings set out by the Commission in the contested decision, recital 2 5 , paragraphs 24 and 4 7 , concerning the participation of Unicem's M r Albert in the meeting of the ETF subgroup on 'stick actions' on 17 March 1987 (documents

II - 1187

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

33.126/4858 to 4861), in accordance with what had been agreed at the setting-up, at the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986, of working subgroups to assist the ETF, which was no longer able to deal on its own with the burden of work created by the task entrusted to it (contested decision, recital 25, paragraph 24; documents 33.126/18858 and 18862). Accordingly, they could not have provided a basis for excluding Unicem's responsibility in the infringement found in Article 4(1) of the contested decision.

2909 T h e Court also points out that, contrary t o w h a t Unicem appears t o claim, the Commission has never maintained either in the SO or in the contested decision that the ECEC took part in the measures t o combat the imports into Western Europe of cement from Greece. The comments that Unicem might have been able t o make during the administrative procedure in order t o deny all involvement of the ECEC in the resolution of the Greek problem would therefore have been totally irrelevant.

2910 In conclusion, Unicem's comments would not have had even a small chance of altering the outcome of the administrative procedure. Unicem has not therefore established an infringement of its rights of defence in that regard during the administrative procedure.

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2912 In its observations of 5 February 1998, Asland states that it was not one of the 'members of the "European Task Force" which were to take up shares in Interciment SA', to which Holderbank wrote on 22 September 1986 (document 33.126/18328). Asland submits that this proves that it did not in any way participate in the ETF.

2913 It must nevertheless be stated that those comments, even if they could have been made by Asland during the administrative procedure, could not have refuted the finding bv the Commission in the contested decision, recital 25, paragraph 1, concerning Asfand's participation in the meeting on 28 May 1986 in Rome, at which the European producers for the first time agreed to respond rapidly, through a common front, with dissuasive and persuasive measures to the decision of the Greek industry to export 2 million tonnes of cement into Western Europe (document 33.126/18771 ). They could not therefore have provided a basis for excluding the responsibility of Asland in the infringement found in Article 4(1) of the contested decision.

II - 1189

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

12. Case T-58/95 Uniland v Commission and Case T-59/95 Oficemen v Commission

2917 Uniland and Oficemen claim, in their observations of 10 February 1997 and 3 M a r c h 1998, that in the documents to which they had access as a result of the measures of 2 October 1996 and 18 and 19 June 1997 there is n o mention or evidence of their participation in the agreement setting up the ETF, as found in Article 4(1) of the contested decision. O n the contrary, various documents in the files relating to Greece, the United Kingdom and Italy show that the steps taken to counter imports from Greece arose not from a multilateral agreement in which Uniland and Oficemen took part but from the unilateral reactions by British producers on the one hand and Italian producers on the other.

2919 In their observations of 10 February 1997 Uniland and Oficemen cite several documents from the file concerning the United Kingdom [minutes of the C M F meetings in 1986 and 1987 (documents 3 3 . 1 2 6 / 1 7 1 6 3 , 17164, 17168 to 17172, 17173, 17174, 17176, 17177, 17178, 1 7 1 7 9 , 1 7 1 8 7 , 1 7 1 9 6 and 17215), a letter from the C M F to the O F T (documents 33.126/17646 and 17647) and minutes of a Blue Circle meeting on 19 June 1986 (documents 33.126/10827 and 10828)] which they consider corroborate the strictly bilateral nature of the contacts between the United Kingdom and Greek markets (industries and public authorities) in connection with the 'Greek problem', and also the purely local dimension of the British responses to imports from Greece. The only references in those documents to the other European producers refer to the meetings held with M r Sutherland, a member of the Commission, and with some members of the European Parliament, with a view to obtaining action by the Commission in the case of the unlawful aid granted by the Hellenic Republic. In their observations of 3 M a r c h 1998, Uniland and Oficemen refer to other documents found a m o n g the British papers, namely the extract concerning point 1.2 ('Take-off-agreement with

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2920 In their observations of 10 February 1997 Uniland and Oficemen refer to t w o documents among the documents in the file on Italy, namely extracts from an Italcementi letter of 26 October 1987 (document 33.126/2950) and, once again, the minutes of the meeting held at Cementir on 12 January 1988 (document 33.126/19872). Those documents do not contain any reference to any participation, whether direct or indirect, by Uniland and Oficemen in the measures taken by the Italian market to counter imports from Greece. O n the contrary, they confirm the purely local dimension of those measures. In their observations of 3 March 1998, Uniland and Oficemen rely, among the Italian documents, on an extract from the replies by Unicem t o the Commission in October 1989 concerning the ETF's activities (documents 33.126/12060 t o 12065, in particular 12063), and also a letter in which Calcestruzzi explains to the Commission that a reduction of its imports from Greece was attributable solely t o the fact that the Italian authorities had not issued it with the authorisations necessary t o construct a quay for unloading the cement (documents 33.126/16317 to 16321, in particular 16319).

2922 In any event, the comments that Uniland and Oficemen might have put forward during the administrative procedure on the basis of the various documents referred to in paragraphs 2918 to 2 9 2 0 above in order to illustrate the bilateral contacts which took place between the Greek and United Kingdom markets, on the one hand, and the Greek and Italian markets, on the other, when the 'Greek problem' arose, could not have prevailed over the bundle of documents referred to in recital 2 5 of the contested decision, on the basis of which the Commission rightly found, in recital 5 3 , that, at the same time as the isolated reactions of the United Kingdom and Italian producers, the question of imports from Greece had led to the setting-up of the ETF at European level with a view to examining dissuasive and persuasive measures to eliminate cheap imports of cement (primarily those from Greece) into Western Europe.

2924 In their observations of 3 M a r c h 1998, Uniland and Oficemen claim to have found in the Greek file a series of cement supply contracts concluded, during the period of the infringement, between Greek producers and other European producers (documents 33.126/19175 to 19178, 19855 to 1 0 8 5 9 , 1 9 4 4 7 to 1 9 4 5 4 , 1 9 7 5 4 to 1 9 7 6 2 , 1 9 7 7 0 to 1 9 7 7 8 , 1 9 7 8 1 to 1 9 7 8 6 , 1 9 7 9 3 to 19798, 19802 to 19812, 19817 to 19832, 2 0 0 1 1 to 2 0 0 1 9 , 20104 to 2 0 1 1 7 , 2 0 1 3 2 to 2 0 1 3 7 , 2 0 1 4 0 to 2 0 1 4 7 , 20148 to 2 0 1 5 6 , 2 0 1 5 7 to 2 0 1 6 4 , 2 0 1 6 6 , 2 0 1 6 7 , 2 0 2 2 5 , 2 0 2 2 6 , 2 0 2 2 9 to 2 0 2 3 9 , 2 0 2 4 0 to 2 0 2 4 9 and 2 0 2 5 9 to 20267), and between Greek producers and non-member countries, for delivery into the Community (documents 33.126/20065 to 20071). They argue that the existence of those various contracts is evidence that imports into the Community from Greece were as regular during the period of the infringement concerned. Uniland and Oficemen therefore consider that, if they had had access to those various documents during the administrative procedure, they would have had an additional means of disproving the Commission's allegations that the ETF's objective was to limit the imports of cement (in particular cement from Greece) to Western Europe. They add that the annual report on Titan's balance sheet for the year 1988 (document 33.126/19432) reveals a spectacular improvement in

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Titan's presence on the Italian market that year, which contradicts the Commission's conclusions, in particular in recital 53 of the contested decision.

2928 In its observations of 10 February 1997, Irish Cement claims, first, that the meetings of 9 and 10 September and 6 November 1986 at which it was invited to assist in the lobbying of European politicians and, in particular, M r Sutherland, a member of the Commission, against Greek State aid, were used by the Commission as evidence that the ETF was a Cembureau body in which Irish Cement was implicated directly and by reason of the fact that it was a direct member of Cembureau. It maintains that the Commission did, however, have evidence in a series of minutes of C M F meetings, showing, first, that the meetings on 9 and 10 September 1986 between the 'European Cement M a k e r s ' and members of the European Parliament had been organised and coordinated by Blue Circle (see documents 33.126/17163 and 17168) and, second, that the purpose of the meeting in Brussels on 6 November 1986 was to prepare for the meeting between 'Heads of EEC Cement Industries' or 'Senior representatives of a number of European cement industries' and M r Sutherland (see documents 33.126/17176 and 17182). Contrary to what the Commission alleges in the contested decision, all those documents show

I I - 1193

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2929 In its observations of 5 January 1 9 9 8 , Irish Cement cites various minutes of meetings of Cembureau's Executive Committee (documents 3 3 . 1 2 6 / 7 8 8 2 t o 7 8 8 6 and documents 33 322/1423 t o 1444), and more specifically the minutes of the meeting of the Executive Committee of Cembureau on 30 M a y 1983 (documents 33.322/1429 and 1431) and again stresses that the E T F meetings were not meetings of Cembureau ' H e a d Delegates'. Those documents show that those meetings were always prepared by the Executive Committee, could be convened only by that committee and were always the subject of a subsequent report at committee level. T h a t was not the case for the ETF meetings, which were convened by Blue Circle, and more specifically by Sir John Milne, as shown by documents 33.126/7717 t o 7722 (note of M r Sytor, of CBR, of 11 September 1986, concerning the meetings in Baden-Baden and Strasbourg on 9 and 10 September 1986) for the meetings of 9 and 10 September 1 9 8 6 .

2931 It should also be pointed out that, in the CBR note referred t o by Irish Cement (see paragraph 2 9 2 9 above; documents 33.126/7717 t o 7722), mention is made of a meeting in Baden-Baden on 9 September 1986 which h a d 'the essential object [of the] debriefing of the working group (Task Force committee established in Stockholm)'. According t o the note, that meeting dealt with the creation of the Joint Trading Company and the 'studies carried o u t by, or under consideration within, the working group'. Those statements therefore corroborate rather than invalidate the findings made by the Commission in the contested decision, recital 2 5 , paragraphs 2 2 t o 3 2 , on the basis of documents 33.126/18849 t o 18862. In addition the same CBR m e m o r a n d u m makes it clear that at the meeting in question Sir John Milne of Blue Circle 'agreed not t o break off contacts with the Greek cement producers, but to redirect those

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2932 As regards the meeting in Brussels on 6 November 1986, described in the contested decision, recital 25, paragraphs 39 to 43, the Commission has never denied that the purpose of that meeting was in part to prepare for the meeting with Mr Sutherland (contested decision, recital 25, paragraph 43). Any comments that Irish Cement might have made in the course of the administrative procedure on the basis of the documents referred to in paragraph 2928 above could therefore at most have confirmed the matters duly taken into consideration by the Commission. They could not, on the other hand, have altered the fact, apparent from the notes concerning that meeting and cited in the contested decision, recital 25, paragraphs 39 to 43 (documents 33.126/19007 and 19008), that the participants, including Irish Cement, agreed that the ETF was to continue to meet in order to follow developments in the threat of imports of cement from Greece onto Western European markets.

I I - 1195

JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

designate the 'European Task Force' was due to the same inaccuracy of expression and that, contrary to what the Commission concluded from it in paragraph 16 of the SO, that reference did not therefore mean that the ETF was a coalition formed at Cembureau level.

2935 However, those comments might equally well have strengthened the Commission's view that the cartel set up by various European cement producers to counter imports into Western Europe of cement, from Greece in particular, was attributable to 'Cembureau people' and, therefore, that it had been created at the level of that European association. In any event, they could not have refuted the finding made in the contested decision, recital 24, paragraph 3, that M r Marshall 'held a position giving him a good knowledge of the structures of Cembureau and its activities', a finding which led the Commission to consider that the reference to the 'Cembureau Task Force' in the m e m o r a n d u m concerning the EPC meeting on 13 M a y 1987, d r a w n up by M r Marshall, 'effectively establish[ed] a link between Cembureau and the task force, a link resulting from the actual terms chosen by M r Marshall'.

2936 In any event, Irish Cement's comments on that point would not have precluded the findings, referred to in paragraphs 2 9 3 0 and 2 9 3 2 above, on the basis of which the Commission rightly concluded that Irish Cement participated in the agreement setting up the E T F .

2940 However, the Court points out in that regard that at the hearing on 12 March 1993 Lafarge stressed that it was legitimate self-defence which had allegedly inspired the setting-up of the ETF (contested decision, recital 53, paragraph 8, first subparagraph). In recital 53, paragraph 8, second to sixth subparagraphs, the Commission sets out the reasons which prompted it to reject that argument. In the light of the reasons thus given by the Commission, in particular in the fifth and sixth subparagraphs, namely that various documents relating to the ETF indicate that its objective was broader than merely countering imports from Greece, the same fate would necessarily have awaited Italcementi's argument alleging that at the time of the ETF there was a Greek export cartel.

I I - 1197

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/9S TO T-32/95, T-34/95 TO T-39/95, T-42/9S TO T-46/95, T-48/9J, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2942 In its observations of 26 November 1997, Italcementi refers to a series of documents (documents 33.126/16484 to 16487, 16478, 1 6 4 7 3 , 16474, 16469, 11062 to 11064, 16489, 1 6 4 9 0 , 1 6 4 8 8 , 1 6 4 7 0 , 1 6 4 7 1 , 1 6 4 9 1 to 1 6 4 9 3 , 1 6 4 6 3 , 1 6 4 6 4 , 1 6 4 5 9 , 1 6 4 9 8 to 1 6 5 0 1 , 1 6 4 9 4 , 1 6 4 9 5 , 16465 to 16468, 11182, 16436 to 16441 and 16508) to show the pressure brought to bear by Blue Circle and the other European cement producers, particularly the German producers, in order that they should support the lobbying efforts carried out by the British industry to persuade the Community authorities to challenge the unlawful imports from Greece. Those documents confirm the lawfulness of the ETF's activities and the decisive role played by the British industry in the resolution of the 'Greek problem'. Other documents (documents 33.126/18868, 18869 and 11086) show the independence of Blue Circle's commercial policy, since Blue Circle, while seeking to rally its European colleagues to the lobbying activities of the ETF, continued to manage its commercial relations with the Greek cement producers in total freedom, buying Greek cement for its operations in the United States. Those documents confirm therefore that the ETF, beside its lobbying function, was simply a forum for the exchange of information a posteriori concerning political action and commercial activity taking place on the various markets.

2944 It must, however, be found that even if Italcementi could have put forward those comments during the administrative procedure they would not have precluded the findings made by the Commission in the contested decision, recitals 24 and 2 5 , that is to say, that the threatened exports by Greek producers which 'at the end of 1985/early 1986, ... looked towards Western Europe, especially... Italy, where small associations formed by consumers and small import/ export companies had taken the step of importing Greek cement' (contested decision, recital 2 4 , paragraph 1), had given rise to the setting-up of the ETF on the initiative of a series of major European producers, including Italcementi, for the purposes of examining, with a view to submitting recommendations to the H e a d Delegates, the dissuasive and persuasive measures capable of eliminating imports of cheap cement (primarily from Greece) into Western Europe.

2945 Any particular emphasis which Italcementi might, during the administrative procedure, have been able to place on the ETF's marginal contribution to the solution of the 'Greek problem' could n o t have prevailed over the documents referred to in the contested decision, recital 2 5 , paragraphs 15 and 24, and recital 5 3 , paragraph 7, on the basis of which the Commission found that the object pursued through the agreement setting up the ETF was manifestly anti- competitive, which sufficed to m a k e that agreement contrary to Article 85(1) of the Treaty (see the case-law cited in paragraph 837 above).

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CIMENTERIES CBR AND OTHERS V COMMISSION

2948 In conclusion, none of Italcementi's observations would have had even a small chance of altering the outcome of the administrative procedure. Italcementi has not therefore established an infringement of its rights of defence in that regard during the administrative procedure.

15. Case T-68/95 Holderbank v Commission

2949 First, in its observations of 8 February 1997, Holderbank puts forward, among the documents in the file concerning the United Kingdom, a series of documents (documents 33.126/17157 to 17159, 17160, 17180, 17181, 17184, 17182, 1 7 1 8 3 , 1 7 1 9 1 to 17194, 17219 to 17225, 17624, 17625, 17631 to 17633, 17635 to 17637, 17638, 17641 to 17653 and 17654) to show that, at the time of the ETF, the CMF, in agreement with the United Kingdom Government and authorities, had had contacts and discussions with the Commission in order to resolve the problem raised by imports of subsidised cement from Greece. Holderbank considers that if it had known of those documents it would have been able to make use of them to supplement its defence concerning the charges relating to the E T F

2950 It has, however, already been stated several times (see in particular in paragraph 2 8 1 9 above) that the Commission had perfectly understood that the emergence of the problems connected

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JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95 T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

2952 T h e Court points out, however, that the note in question states that 'until now, in England, the agreement has "terrorised" the market and has prevented the major undertakings in the ready- for-use cement ... sector from buying Greek cement for fear of reprisals'. Contrary t o w h a t Holderbank would appear to maintain, it does n o t state that the 'agreement' i n question w a s the United Kingdom agreement.

2953 In any event, the comments which Holderbank might have been able t o make during the administrative procedure on the basis of that note could n o t have prevailed over the bundle of documents referred t o in recital 2 5 of the contested decision, on the basis of which the Commission has rightly found in recital 53 that, alongside the local reactions of the most directly threatened markets (in particular, the United Kingdom market), the emergence of the problem of imports from Greece had led t o the setting-up of the ETF, on the initiative of a series of major undertakings, including Holderbank, for the purpose of examining dissuasive and persuasive measures t o eliminate destabilising imports of cement (primarily those from Greece) onto Western European markets.

2954 Third, in its observations of 8 February 1997, Holderbank maintains that it is apparent from Chapters 7 and 17 of the SO — particularly from Chapter 17, paragraph 86, subparagraphs 1, 2 and 3 , page 2 1 8 — concerning the Greek market, that the Commission itself had considered that the effect of the Greek cement producers' agreements restricting competition w a s to eliminate competition both on the local market and also at the level of export transactions

2955 However, as has already been stated on several occasions (see in particular paragraph 2841 above), at the hearing on 12 March 1993 Lafarge had insisted that it was legitimate self-defence which had inspired the setting-up of the ETF (contested decision, recital 53, paragraph 8, first subparagraph). In recital 53, paragraph 8, second to sixth subparagraphs, the Commission sets out the reasons why it rejected that line of argument. In the light of the considerations thus set out by the Commission, in particular in the fifth and sixth subparagraphs, namely that various documents concerning the ETF show that its objective was more general than simply to counter imports from Greece, the same fate must necessarily have awaited Holderbank's argument alleging that, at the time of the ETF, there was a Greek export cartel. For the same reason, that fact could obviously not have been held to be a mitigating circumstance for the purposes of setting the fine, which was, moreover, imposed on account of the infringement referred to in Article 1 of the contested decision.

16. Case T-70/95 Aker v Commission and Case T-71/95 EUROC v Commission

2958 In their observations of 10 February 1997 Aker and EUROC put forward Italcementi's notes of 15 October 1986 (documents 33.126/2945 to 2948), 26 October 1987 (documents 33.126/2949 to 2951) and 13 November 1987 (documents 33.126/2954 to 2960) as evidence that the 'Greek problem' was at the time dealt with on a purely bilateral basis between the principal Italian cement producers and their Greek counterparts. They refer in particular to the Italcementi note of 13 November 1987, referred to above, which states: 'We must consider whom to contact, how to contact the Greeks and to propose a truly viable agreement, which should not last longer than two years, with the intention of subsequently managing the Greek cement industry better with the European producers, either by direct participation in share capital, or by indirect presence.' The statements contained in that document contradict the Commission's argument that there were multilateral arrangements or concerted practices previously decided upon between European producers at Cembureau or ETF level.

2959 It must, however, be observed that the comments which Aker and E U R O C might have made during the administrative procedure in order to emphasise that the emergence of the 'Greek problem' had given rise to bilateral contacts, in particular between the Italian and Greek producers, could not have prevailed over the bundle of documents referred to in recital 25 of the contested decision on the basis of which the Commission rightly found in recital 53 that the problem of imports into Western Europe of cement from Greece had given rise, alongside those particular steps, to the setting-up of the ETF at European level for the purpose of examining dissuasive and persuasive measures to eliminate cheap imports of cement (primarily from Greece) into Western Europe.

2963 The Court finds, however, that the comments which Blue Circle might have made during the administrative procedure on the basis of the Greek file, in order to show that the United Kingdom producers' reactions to exports by Greek undertakings took place within a strictly local framework, and that the coordination by Blue Circle at European level upon the emergence of the problem of Greek imports related exclusively to political action, could not have prevailed over the bundle of documents referred to in recital 2 5 of the contested decision, on the basis of which the Commission rightly found, in recital 5 3 , that the emergence of the 'Greek problem' had given rise to the setting-up of the ETF at European level, on the initiative of a number of major European producers, including Blue Circle, for the purposes of examining dissuasive and persuasive measures to eliminate destabilising imports (primarily from Greece) onto western European markets.

II - 1203

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/9S, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

Sutherland, a member of the Commission, and representatives of the European cement industry.

2966 It is correct that the documents in question refer not, as the Commission suggests in the contested decision, recital 2 5 , paragraph 4 3 , to the preparation, at the 'Head Delegates' meeting in Brussels on 6 November 1986, of the document for M r Sutherland in anticipation of the meeting which had been arranged with him concerning the Greek matter, but rather to the meeting in question, which t o o k place t h a t same day in Brussels. Only documents 33.126/19007 and 19008, cited in the contested decision, recital 2 5 , paragraph 39, record the discussions concerning the preparation of the document intended for the member of the Commission. Blue Circle has not, however, shown h o w the outcome of the administrative procedure could have differed if, during that procedure, it could have raised that mistake by the Commission, a mistake which relates to an aspect of the ETF's activities which was not subsequently found to be an infringement in the contested decision, namely, that steps were taken to make the Community authorities aware of the concerns caused by imports from Greece (see contested decision, footnote 115).

2967 In conclusion, there was not even a small chance that Blue Circle's observations could have altered the outcome of the administrative procedure. Blue Circle has not therefore established an infringement of its rights of defence in that regard during the administrative procedure.

applicants deny any involvement in the infringement found in Article 4(2). Finally, several of them challenge the period for which that infringement was found to exist or, at least, the duration of their own participation in the infringement. The applicants concerned will be identified when the various arguments are considered.

2970 Moreover, Dyckerhoff, SFIC, Heidelberger, Lafarge, Asland, Holderbank, Aker, E U R O C and Cementir allege that, when making the finding of the infringement in Article 4(2) of the contested decision, the Commission breached their rights of defence by failing to give them access during the administrative procedure to the whole of the SO and investigation file, thus depriving them of allegedly exculpatory evidence.

2971 Aalborg (T-44/95) also puts forward a line of argument seeking to deny any involvement in the setting-up of Interciment.

2972 However, the infringement found to exist in Article 4(2) of the contested decision has not been alleged against Aalborg. Its argument must therefore be rejected from the outset.

B — The unlawful nature of the setting-up of Interciment

2973 In recital 26, paragraph 1, of the contested decision the Commission refers to various extracts of documents. It states that it is clear from them that 'the decision to set up the Joint Trading Company, Interciment SA, adopted at the meeting of Head Delegates on 9 June 1986 ... constitutes an agreement between undertakings within the meaning of Article 85(1). The purpose of the agreement was to implement the "persuasive" and "dissuasive" measures ("either for 'stick' or 'carrot' measures"), i.e., as specified in the document d r a w n up at Céligny- Zurich, to purchase and market cement and clinker from the countries threatening the stability of the member countries' markets, and to take away export markets from the countries threatening the stability of the member countries' markets' (recital 54, paragraph 1).

2977 T h e reference in that extract t o 'stick or carrot measures' must refer t o the Zurich/Céligny document which, after defining the measures concerned (see paragraph 2539 above), describes the tasks of the Joint Trading Company as follows (contested decision, recital 2 5 , paragraph 6, and recital 2 6 , paragraph 1; documents 33.126/18776 and 18777):

— to capture the orders of the principal export markets supplied by the countries threatening the stability of the member countries' markets;

— to purchase cement and clinker from the countries threatening the stability of the member countries' markets;

— to market the quantities purchased through market intervention;

— to export cement and clinker to the countries threatening the stability of the member countries.

2978 In the light of those various extracts, the Commission w a s entitled t o take the view (contested decision, recital 5 4 , paragraphs 1 and 2) that the objective assigned t o the Joint Trading Company Interciment w a s t o implement the dissuasive and persuasive measures recommended in the Zurich/Céligny document against countries threatening the stability of the member countries' markets. Therefore, the Commission w a s fully entitled t o find (same recital,

2981 In that connection, it is apparent from Article 2 of Interciment's articles of association that 'the object of the company [was] to engage in the international trade in building and construction materials and to take holdings in foreign undertakings engaged in the trade in building and construction materials [and that,] in general, the company [might] carry out all transactions and perform all functions, both for its o w n account and for the account of third parties, that [were] directly or indirectly related t o its goal' (contested decision, recital 26, paragraph 4 ; document 33.126/18833). However, the documents referred t o by the Commission in recital 2 6 , paragraph 1, of the contested decision show (see paragraphs 2976 and 2 9 7 7 above) that the goal entrusted to Interciment was t o implement the dissuasive and persuasive measures recommended by the Zurich/Céligny document as against countries threatening the stability of the member countries' markets.

2982 Under cover of a standard form clause in its articles of association, Interciment was thus given an object that was manifestly contrary t o Article 85(1) of the Treaty, as is confirmed by the following extract from the Blue Circle internal m e m o r a n d u m of 10 July 1986 cited in recital 2 6 , paragraph 1 3 , of the contested decision (document 33.126/18842):

'The proposal to set up a Swiss company, the members of which would be major European cement producers, for the purpose of buying specific tonnages of cement produced in Greece for distribution throughout the world clearly infringes Article 85 of the Rome Treaty. Even if it is not expressly stated the implicit object is to influence inter-State trade within the EEC.'

refers to the various legal opinions mentioned by the Commission in recital 26, paragraph 13, of the contested decision. It adds that since Interciment was never active it was not necessary to make the recommended notification. Ciments Français refers to the record of the meeting held in Rome on 28 May 1986, which reflects the concern of the participants to ensure the lawfulness of their actions and, in particular, of the proposed setting-up of a Joint Trading Company, in the light of the Community rules on competition (contested decision, recital 25, paragraph 1). Blue Circle cites the recommendation, at the end of the Zurich/Céligny document, that the advice of a Community law expert should be obtained on the various actions contemplated. It adds that Interciment was never notified to the Commission because there was never any agreement as to the purposes for which it might be used. It claims that that company was never operational.

2987 It must be stated, however, that, while the participants in the meeting in Brussels on 6 November 1986 approved M r Van Hove's proposed amendment of Article 2 of Interciment's articles of association (contested decision, recitals 2 5 , paragraph 4 1 , and 2 6 , paragraph 4; document 33.126/19007), n o undertaking has produced articles of association that incorporate the amendment so approved.

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2988 Moreover, a note found at Italcementi concerning the meeting of the ETF in Milan on 9 January 1987 states that 'the opinion of the French on Interciment is, curiously, very cautious' (contested decision, recital 2 5 , paragraph 4 4 ; document 33.126/2905).

2989 With that note was enclosed (Annex 4) the 'legal opinion of a French expert on Interciment SA', w h o considered in particular (contested decision, recitals 2 5 , paragraph 4 4 , and 26, paragraphs 12 and 13; document 33.126/2915):

'Setting up Interciment SA with the proposed shareholders would quite clearly infringe Community legislation, since most of the major European producers will be involved in it. If the shareholders represent more than half of their country's total consumption, it is not inconceivable that the EEC will consider that Interciment is a cartel designed to hinder inter- State trade within the Community. ... Simply to gain a maximum of 12 months, it is possible to notify the Commission at the same time as the start of operations.'

2992 Fourth, CBR, Dyckerhoff, Ciments Français, Heidelberger, Lafarge, Italcementi, Holderbank, Aker, E U R O C and Blue Circle emphasise the fact that Interciment never became operational. Immediately after the company had been set up, it was decided that it should remain dormant. According to Ciments Français, Italcementi and Holderbank, that decision was based on doubts as to whether the initiative was compatible with Article 85(1) of the Treaty. Blue Circle states that a prerequisite to Interciment's becoming operational was that it would be notified to the Commission. Interciment was at most a legal shell, possessing no staff, executive bodies, working capital, premises or plant, which its sole shareholder, Holderbank, maintained as a d o r m a n t company, as one of the many companies which it had set up in form only. Ciments Français adds that that company was created in case it was legally possible for Holderbank to use it, possibly for other purposes than those originally envisaged. Holderbank points out that, although it asked a number of undertakings to settle their contributions and to take up the Interciment shares due to them, only Italcementi and Blue Circle paid for their shares in

II - 1 2 0 9

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/9S TO T-65/95, T-68/9J TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

Interciment. Blue Circle stated, however, that it did not wish to have such a shareholding on account of its reservations as to the compatibility of Interciment with Community competition law. Italcementi transferred its shares back to Holderbank on 7 November 1988.

2995 In any event, the Commission has shown (see above paragraphs 2 9 7 6 to 2978) that the object of the agreement setting up Interciment was contrary to Article 85(1) of the Treaty, as it has established that Interciment had been assigned the objective of implementing the dissuasive and persuasive measures proposed in the Zurich/Céligny document against countries threatening the stability of the member countries' markets. Since the anti-competitive object of that agreement has thus been proved, it is immaterial, for the purposes of application of Article 85(1) of the Treaty, that the agreement did not in the end lead to any such result (see to that effect the case- law cited at paragraph 837 above). The Commission was therefore fully entitled to take the view that the setting-up of Interciment constituted 'quite apart from the effects ... an infringement of Article 8 5 ' (contested decision, recital 54, paragraph 2).

2996 In consequence, the submissions of the applicants must be rejected.

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C — The participation in the agreement setting up Interciment of the applicants referred to in Article 4(2) of the contested decision

1. Preliminary observations

2. CBR, Dyckerhoff, Lafarge, Italcementi, Aker and EUROC

2999 CBR states that it has never held shares in Interciment. In its view, the Commission cannot dispute that fact by relying on the request for payment of a quota of shares in Interciment addressed to CBR by Holderbank or on M r Van Hove's proposed amendment of Interciment's articles of association. Holderbank's request for payment was made before the decision of the Belgian and Netherlands undertakings not to taue part in Interciment. It does not therefore constitute evidence of their subsequent participation. The notes of the meeting in Brussels on 6 November 1986 show, moreover, that it was decided at that meeting that no Community undertaking would subscribe to Interciment's shares. M r Van Hove's proposed amendment of Interciment's articles of association demonstrates at most that the undertakings concerned by the Belgian representative's action contemplated participating in Interciment upon certain conditions.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

3000 Dyckerhoff claims that it is has not been established that the setting-up of Interciment was decided on at the meeting in Stockholm on 9 June 1986. Interciment is in actual fact the result of an independent initiative by Holderbank. Moreover, it was set up on 24 June 1986 by Swiss lawyers. Dyckerhoff also points out that in Blue Circle's internal memorandum of 10 July 1986, mentioned above at paragraph 2982 (contested decision, recital 26, paragraph 13; documents 33.126/18842 and 18843), the issue was still 'the proposal to set up the Swiss company'. In Stockholm, therefore, it was merely decided to prepare for the setting-up of such a company.

3005 Italcementi claims that the fact that it held shares in Interciment, a d o r m a n t company, for 2 1 months (from February 1987 to November 1988) does not constitute an infringement of Article 85(1) of the Treaty.

3006 Aker and E U R O C maintain that although documents 3 3 . 1 2 6 / 1 8 8 2 1 , 18822 and 18857 to 1 8 8 6 1 , cited in recital 26, paragraph 2, of the contested decision state that it was suggested that they should take a 1 2 . 5 % share in Interciment, they never committed themselves to that effect,

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never made a financial contribution to that company's capital and were never allotted shares in it. They add that, even on the assumption that there was an unconditional undertaking to create and implement Interciment, such an undertaking did not arise out of the meeting in Stockholm on 9 June 1986 and, in any event, did not concern them. They refer to Holder bank's telex of 12 June 1986 to Blue Circle, cited in recital 25, paragraph 11, of the contested decision (document 33.126/18781). They also claim that they had no intention of committing themselves to Interciment until it could be guaranteed that that company was compatible with Article 85(1) of the Treaty.

3007 Those arguments cannot be accepted.

3011In connection with point 1.9 in the agenda for that meeting, dealing with Interciment, the participants were first told of the setting-up, pursuant t o the decision taken by the Head Delegates at their meeting in Stockholm, of the Joint Trading Company Interciment SA/ Interciment AG/Interciment Ltd, with share capital of C H F 50 0 0 0 (wholly paid up by Swiss lawyers acting as trustee and advanced for that purpose by Holderbank on behalf of the companies and/or countries represented at the Stockholm meeting). It was also stated that the company could be immediately ready for operation for both persuasive and dissuasive measures. Mention was made of the division of shares in Intericment, agreed on at Stockholm. As regards organisation, it was pointed out that, since Swiss law required that the majority of the board of directors of the company should be Swiss, M r Cottier, one of the three lawyers present at the setting-up of the company, was the sole director, but he would act on the

I I - 1213

JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-6S/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

instructions of an executive committee whose functions were yet to be settled and for which the ETF had proposed the following names: Messrs d'Agostino (Italcementi — Italy), Marichal (Lafarge Coppée — France), Félix (Hornos Ibéricos — Spain), Horner (Blue Circle — United Kingdom) and Akermann (Holderbank — Switzerland), the latter acting as coordinator. Finally, it was agreed that the company would remain dormant but ready for operation (contested decision, recitals 25, paragraphs 22 and 32, and 26, paragraph 1; documents 33.126/18858, 18860 and 18861).

3013 T h e participation of the six undertakings in the agreement setting up Interciment is, moreover, confirmed by the fact that they were sent the letter of 2 2 September 1986 in which Holderbank requested payment of quotas of Interciment shares (contested decision, recital 2 6 , paragraph 6; documents 33.126/19019 t o 19022 and 19025). Holderbank w a s able to send such a request t o those undertakings only because they had agreed t o contribute t o the implementing of that agreement by offering, on their o w n account or on behalf of their market, t o take u p shares in Interciment. T h e minutes of the meeting of H e a d Delegates and representatives of the E T F in Baden-Baden on 9 September 1986 (contested decision, recital 2 6 , paragraph 2; document 33.126/18861) and Annex 2 t o the agenda for the meeting of the E T F on 19 August 1986 (contested decision, recital 2 6 , paragraph 2; document 33.126/18821) also show that 1 2 . 5 % of Interciment's share capital had been allotted t o each of 'Belgium' — more specifically t o 'CBR/ Cim. d ' O b o u r g ' — t o 'Germany', t o 'France' — more specifically t o 'Lafarge (France)', t o 'Italy' — more specifically t o 'Sogec (Italy)', a subsidiary partly owned by Italcementi — and t o 'Norcem/Cementa'.

3014 T h e claim by CBR, Dyckerhoff, Lafarge, Aker and E U R O C that ultimately they never actually financed Interciment, or even subscribed for their quota of the shares in question is irrelevant.

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3015 The Commission correctly observed in recital 54, paragraph 4, of the contested decision:

3020 The Court finds that in the Legal Assessment of the SO, concerning Interciment, the Commission did place particular emphasis on the actual payment for shares in that company by the various undertakings which had received Holderbank's letter of 22 September 1986 [SO, paragraph 61(h)(i), p. 179], which it did not do in the contested decision (recital 54, paragraph 4). Nevertheless, the three factors on which the Commission relied, in recital 54, paragraph 3, of the contested decision (see paragraph 2 9 9 7 above) in finding that the applicants took part in the agreement setting up Interciment were explicitly referred to in The Facts of the SO (see Chapter 2, section 2, paragraph 18, pp. 43 and 44). Aker and E U R O C were thus in a position to

I I - 1215

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

put forward their comments, during the administrative procedure, on the three factors relied upon in the contested decision in charging undertakings with the infringement referred to in Article 4(2). They cannot, therefore, claim that their rights of defence were infringed during the administrative procedure, with regard to the finding of that infringement.

3021 Aker and EUROC's argument must therefore be rejected.

3. SFIC, B D Z and Oficemen

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CIMENTERIES CBR AND OTHERS V COMMISSION

3026 Those three associations were also represented at the meeting of Head Delegates and members of the ETF in Baden-Baden on 9 September 1986 (see paragraphs 2 6 2 3 to 2 6 2 5 , 2 6 6 7 , 2711 and 2 7 1 2 above), at which the setting-up of Interciment, its anti-competitive purpose, the details of its running and the structure or its share ownership were discussed and at which it was agreed to ensure that the company would remain ready for operation (see paragraph 3011 above).

3027 In addition, it must be pointed out that the Commission has demonstrated the SFIC's own role in the infringement found in Article 4(2) of the contested decision. In particular, it noted in recital 2 9 , paragraph 4, that SFIC had relayed to its market the discussions held at European level, in particular, at the meetings of 9 June and 9 September 1986 at which it had been represented by M r Laplace and M r Kasriel, concerning imports from Greece (see paragraphs 2 6 2 4 and 2 6 2 5 above).

3028 In those circumstances and in the absence of any evidence produced by those three applicants to show that at the meetings referred to in paragraphs 3025 and 3026 above they nad openly distanced themselves from the concurrence of wills relating to the setting-up of the Joint Trading Company Interciment, it must be held that they adhered to that anti-competitive concurrence of wills or, at least, that they gave that impression to the other participants (see, to that effect, the case-law cited at paragraph 1353 above).

3029 The fact, relied on by the BDZ, that no document relating to Interciment was found in its files is irrelevant in that respect. The same holds for Oficemen's assertions that it was not mentioned in any document concerning the setting-up and running of Interciment, that it was not represented on the executive committee of that company and that it never subscribed to its capital, directly or indirectly.

4. Ciments Français

3033 Ciments Français claims never to have participated in the management, executive committee or capital of Interciment. Contrary to what the Commission states in recital 26, paragraph 6, of the contested decision, there are no grounds for including it in the 'French shareholding' covered by the share quota in Interciment requested from Lafarge by Holderbank. In any event, the Head Delegates present at the meeting in Brussels on 6 November 1986 decided, as a result of various legal opinions, that no Community undertaking would subscribe to Interciment's capital.

3034 Ciments Français maintains that its chairman, Mr Laplace, took part in the meetings of Head Delegates described in recital 26 of the contested decision in his capacity as chairman of the SFIC and member of the CLC, purely in connection with actions taken to make the national and Community authorities aware of the problem.

3035 However, the Court points out that Mr Laplace also represented Ciments Français, whose chairman he was at the time, at the meeting in Stockholm on 9 June 1986 (see paragraphs 2629 and 2630 above).

3036 In the light of what has been stated in paragraph 3009 above, and since Ciments Français has not adduced any evidence to demonstrate that, at that meeting, Mr Laplace openly distanced himself from the decision to set up Interciment or that he informed the other participants that he intended to be present at the meeting with different objects in mind (namely merely to prepare for the political actions called for by the appearance of the 'Greek problem'), it must be held that Ciments Français manifested its support for the setting-up of the Joint Trading Company Interciment or, at the very least, that it gave that impression to the other participants (see, to that effect, the case-law cited in paragraph 1353 above).

3040 The Court points out that Heidelberger did not take part in the meeting in Stockholm on 9 June 1986 or the meeting of the Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986. Nor was it sent the Holderbank letter of 22 September 1986 in which Holderbank asked a series of undertakings to pay for quotas of shares in Interciment.

3041 Admittedly, that letter, addressed t o M r Lose, of Dyckerhoff, concerning the German market (contested decision, recital 2 6 , paragraph 6; document 33.126/19020), did request payment of the 'German shareholding' in Interciment and requested the German producers to decide between them which of them was t o hold those shares. Nevertheless, those facts do not make it possible to conclude that Heidelberger had shown its support for the taking-up of shares in Interciment which had been accepted by Dyckerhoff at the meeting in Stockholm on 9 June 1986. Having regard to the smallness of the sums involved ( C H F 6 250), Dyckerhoff was able to accept such a shareholding on behalf of the German market without first receiving the consent of the other undertakings on its market, even though it might have t o bear the financial burden of taking up that shareholding by itself if it did not subsequently manage to obtain their contributions.

3042 T h e Commission claims that the preparation of means to implement the dissuasive and persuasive measures had already been discussed at the meeting in Rome on 28 M a y 1986, at which Heidelberger was present.

3043 Nevertheless, and without any need t o rule on the relevance of that assertion, the Court points out that in the contested decision the Commission makes absolutely no reference to that meeting in the summary of facts relating to the agreement on setting up Interciment (recital 26) or in the legal assessment of those facts, in particular among the factors used in recital 54, paragraph 3 , t o attribute responsibility for the infringement to the various undertakings and associations referred to in Article 4(2).

3047 Unicem claims that it did not take part in any meeting relating t o the setting-up or activities of Interciment. In a d d i t i o n , H o l d e r b a n k never asked it to pay for a quota of Internment's shares. The fact that such a payment w a s requested of Italcementi in respect of the Italian shareholding, even if it were established, does not make it possible to implicate Unicem.

3048 The Court points out that Unicem w a s not present at the meeting in Stockholm on 9 June 1986 or at the meeting of H e a d Delegates and representatives of the ETF in Baden-Baden on 9 September 1986. N o r was it sent the Holderbank letter of 2 2 September 1986 in which H o l d e r b a n k asked a number of undertakings to pay for quotas of Interciment's shares.

3049 Admittedly, that letter, which w a s addressed to M r d'Agostino of Italcementi, so far as regards the Italian market (contested decision, recital 26, paragraph 6; document 33.126/19019), asked for payment of the 'Italian shareholding' in Interciment's capital. For the reasons set out in paragraph 3041 above, such a fact does not however make it possible to conclude that Unicem had demonstrated its consent to the taking-up of a shareholding in Interciment which had been accepted by Italcementi at the meeting in Stockholm on 9 June 1986.

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3050 The Commission states that, according to Annex 2 to the agenda of the meeting of the ETF on 19 August 1986 (contested decision, recital 2 6 , paragraph 2; document 33.126/18821), the Italian quota of shares in Interciment had been allotted to Sogec, a joint subsidiary of Italcementi and Unicem.

3055 As has already been stated in paragraph 3 0 4 5 above, such a fact does not however show that Unicem participated in the agreement concerning the setting-up of Interciment.

3056 It is clear from all the foregoing that the Commission was not entitled to find that Unicem participated in the agreement setting up Interciment. It follows that Article 4(2) of the contested decision must be annulled in so far as it finds that Unicem participated in that agreement.

I I - 1221

JUDGMENT OF IS. 3. 2000 - JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

7. Asland

3060 So far as regards the first point, while it is true that according to the report of the meeting in Rome on 28 M a y 1986 the participants in that meeting, including Asland, had agreed to meet again in Stockholm on 9 June 1986 (contested decision, recital 2 5 , paragraph 1; document 33.126/18771), that does not prove that Asland actually took part in the Stockholm meeting.

3061 As regards the second point, it shows at most that a Spanish participant was present at the Stockholm meeting. It does not prove that the representative was a member of Asland. The fact that Holderbank addressed its request for payment of the Spanish shareholding in Interciment to M r Félix of H o r n o s Ibéricos (contested decision, recital 2 6 , paragraph 6; document 33.126/19023) casts further doubt on Asland's presence at the Stockholm meeting.

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CIMENTERIES CBR AND OTHERS V COMMISSION

3062 In those circumstances, and having regard to the fact that during the administrative procedure Asland persistently maintained that the only evidence adduced against it in the SO in support of the various charges brought against it was its participation in the meeting in Rome on 28 May 1986 (see Aslanďs reply to the SO, pp. 41 and 42, and the Report for the Hearing on 11 March 1993, pp. 38 and 39), the Commission cannot here seek to establish that Asland was present at the meeting in Stockholm on 9 June 1986 on the basis of the two sets of minutes of that undertaking referred to in paragraph 3058 above, documents which were not referred to in the SO, were not in the Box (see paragraph 95 above) and on which the Commission never formally requested Asland to submit its observations during the administrative procedure.

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

end. The complete lack of any connection between Interciment and Uniland is further borne out by the fact that the documents concerning Interciment do not refer either to Uniland or Mr Rumeu. The Commission cannot rely on documents drafted by third parties stating that documents were to be handed to Mr Rumeu (contested decision, recital 25, paragraph 33) in order to establish a connection between Interciment and Uniland.

3068 Last, Uniland claims that it never subscribed, directly or indirectly, to a shareholding in Interciment and that it was never asked to make such a subscription. It adds that the Commission has provided no evidence to that effect. Such a subscription cannot be inferred from the letter sent by Holderbank on 22 September 1986 to H o m o s Ibéricos with a view to obtaining payment of the 'Spanish shareholding' in Interciment. Uniland also states that it was never represented in Interciment's administrative bodies.

3069 It must however be pointed out that, in the person of M r Rumeu, Uniland took part in the meeting of H e a d Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 (see paragraph 2 6 9 5 above).

3070 In the light of w h a t has been set out in paragraph 3 0 1 1 , and without the need to consider whether Uniland's argument concerning its participation in the meeting in Brussels on 6 November 1986 is well founded, that not being a meeting referred to in recital 54, paragraph 3, of the contested decision, the Court finds, in the absence of any evidence produced by Uniland to show that at the meeting referred to in the previous paragraph it had openly distanced itself from the agreement setting up Interciment, that Uniland did subscribe to that initiative or at least gave that impression to the other participants (see, to that effect, the case- law cited above at paragraph 1353).

3074 Uniland complains that the Commission has not charged the undertaking to which Mr Félix belonged with participating in the agreement setting up Interciment, even though Mr Félix was a part of Internment's executive committee.

3075 However, that fact cannot in any event make it possible to disregard the infringement found to have been committed by Uniland, where that infringement has been properly established (see, to that effect, Woodpulp II, cited above at paragraph 106, paragraph 146). The grounds set out above show that in the contested decision the Commission was fully entitled to conclude that Uniland participated in the agreement setting up Interciment.

9. Cementir

3076 Cementir claims to have been wholly uninvolved in the setting-up and running of Interciment. It does not meet any of the conditions laid down by the Commission in recital 54, paragraph 3 , of the contested decision. The reference to the Italian industry in the letter of 2 2 September 1986, in which Holderbank requested Italcementi to pay for a quota of shares in Interciment, did not concern Cementir, since only Italcementi and Unicem were involved in the ETE In any event, that Italian shareholding was wholly paid by Italcementi, which has confirmed that it had not transferred any part to other Italian producers (see Italcementi's reply of 21 March 1990 to a request by the Commission for information).

3079 In conclusion, the Commission w a s w r o n g t o find that Cementir t o o k part in the agreement concerning the setting-up of Interciment.

3080 It follows that Article 4(2) of the contested decision must be annulled in so far as it finds that Cementir took part in that agreement.

D — T h e duration of the infringement found in Article 4(2) of the contested decision

3081 In Article 4(2) of the contested decision, the Commission finds that the infringement concerning the agreement setting u p Interciment lasted from 9 June 1986 t o 2 6 M a r c h 1 9 9 3 . 9 June 1986 is the date of the Stockholm meeting, at which it was decided t o set up the Joint Trading Company Interciment (contested decision, recital 2 6 , paragraph 1). 26 M a r c h 1993 is the date of the Interciment general assembly at which it was decided t o dissolve the company (see the record of that general assembly, sent by Holderbank's lawyer t o the Commission on 3 M a y 1993; contested decision, recital 2 6 , paragraph 16).

3082 It has already been stated that, by taking 9 June 1986 as the starting date of that infringement as regards Uniland, the Commission wrongly assessed the start of its participation in the infringement. T h a t start must therefore be fixed at 9 September 1986 (see paragraph 3073 above).

3083 T h e Court must n o w consider the applicants' arguments seeking t o challenge the Commission's decision t o fix 26 M a r c h 1 9 9 3 as the date on which the infringement ended.

3087 On this point, it must be borne in mind that, while it was agreed on several occasions that Interciment was to remain dormant (see paragraph 2 9 9 3 above), it was considered important at the meeting in Baden-Baden on 9 September 1986 to ensure that that company was ready for operation in order to implement the dissuasive and persuasive measures recommended by the Zurich/Céligny document against countries threatening the stability of the member countries' markets (contested decision, recitals 2 5 , paragraph 32, and 26, paragraph 14; document 33.126/18861). Subsequently, Interciment was further discussed at the meetings of the ETF on 9 January 1987 (contested decision, recital 2 5 , paragraph 4 4 ; documents 33.126/18921 and 18922) and 11 February 1987 (contested decision, recitals 2 5 , paragraphs 4 5 , and 26, paragraph 10; documents 33.126/18937 and 18938). With a view to that last meeting, Holderbank sent the members of the ETF Interciment's balance sheet as at 31 December 1986 (contested decision, recital 26, paragraph 10; documents 33.126/18946 to 18949).

3088 In addition, it is clear from documents 33.126/10960 to 10962, cited in recital 26, paragraph 7, of the contested decision, and from the extract from Blue Circle's reply to the SO reproduced in recital 26, paragraph 9, that in September or October 1986 Blue Circle made a payment through its Swiss subsidiary BCO AG to Holderbank in connection with Interciment.

3089 Last, Italcementi subscribed to Interciment's capital on 11 February 1987 before reselling its shares to Holderbank on 7 November 1988 (contested decision, recital 26, paragraph 8; documents 33.126/16218 and 16220).

3094 However, the extract in question shows at most that Interciment still existed at that time and that it could be made operational at any moment. It does not show that the concurrence of wills expressed in the middle of 1986 entrusting that company with the implementation of the dissuasive and persuasive measures recommended by the Zurich/Cêlignv document against countries threatening the stability of the member countries' markets was still in existence during the administrative procedure.

3095 Finally, in recital 54, paragraph 4 , of the contested decision, the Commission puts forward the fact that the persuasive measures consisting of the absorption of Greek cement and clinker were carried out until 1 9 9 1 .

3096 It does not however produce any evidence to show that such persuasive measures were carried out by Interciment.

3097 In conclusion, Article 4(2) of the contested decision must be annulled in so far as it finds that the infringement relating to the agreement setting up Interciment continued after 7 November 1988. That conclusion applies not only to the applicants referred to in paragraphs 3084 to 3086

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3101 T h a t argument cannot therefore, with regard to Lafarge, lead to the invalidity of the above analysis in paragraphs 3 0 8 7 to 3097 concerning the duration of the infringement referred to in Article 4(2) of the contested decision.

3102 Third, Uniland claims that it cannot be held liable for maintaining Interciment when it has never participated in that company's share capital or managing bodies.

3103 However, that undertaking does not put forward any evidence to show that, after demonstrating its support, at the meeting in Baden-Baden on 9 September 1986, for the setting-up of Interciment and the anti-competitive object conferred on it, it thereafter openly distanced itself from the unlawful concurrence of wills in which it had taken part at that meeting.

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JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

3104 Uniland's argument cannot therefore invalidate the above analysis in paragraphs 3 0 8 7 to 3097 concerning the duration of the infringement referred to in Article 4(2) of the contested decision.

3109 In its observations of 5 January 1998, Dyckerhoff adduces documents to show that it had been agreed from the start to make the setting-up of Interciment conditional on a legal opinion being obtained (documents 33.126/7639 to 7641).

3110 Nevertheless, the observations which Dyckerhoff might have been able to put forward during the administrative procedure on the basis of those documents could not have precluded the findings made on the basis of the bundle of documents referred to by the Commission in recital

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26 of the contested decision, namely that, without waiting for the contemplated legal opinion, it was decided to set up Interciment and to assign it an objective manifestly contrary to Article 85(1) of the Treaty.

3111 SFIC, in its observations of 7 January 1998, Lafarge, in its observations of 28 January 1998, and Aker and EUROC, in their observations of 29 December 1997, also rely on document 33.126/7639, mentioned in paragraph 3109 above. They claim that that document, a letter sent by CBR's Mr Van Hove on 6 November 1986 to Holderbank's Mr Akermann, is proof that the Community authorities had been informed of the setting-up of Interciment and that notification of that measure to the Commission had been contemplated.

3116 In its observations of 5 January 1 9 9 8 , Dyckerhoff produces several documents to prove that Interciment never carried on any business whatsoever (documents 33.126/16509, 16515 and 16516).

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

3117 In its observations of 8 December 1997, Holderbank relies on the following extract from information supplied by Italcementi to the Commission on 21 M a r c h 1990 in connection with the investigation into this case (documents 33.126/15978 to 15985, in particular 15984): 'Until our shares were bought back [by H o l d e r b a n k ] , Interciment remained dormant.' It claims that that extract would have provided it with support for its argument that Interciment had always been a d o r m a n t company, maintained in its books as a purely formal company, and did not trade.

3118 With regard to Dyckerhoff, it must first be observed that document 33.126/16509 corresponds to document 33.126/18857, and that documents 33.126/16515 and 16516 correspond to documents 33.126/18821 and 18822. Documents 3 3 . 1 2 6 / 1 8 8 5 7 , 1 8 8 2 1 and 18822 were in the Box (see paragraph 95 above). In those circumstances, Dyckerhoff cannot plead infringement of its rights of defence during the administrative procedure.

3119 In any event, any comments which Dyckerhoff and Holderbank might have been able to make during the administrative procedure, on the basis of the documents mentioned in paragraphs 3 1 1 6 and 3 1 1 7 above, could only have confirmed w h a t had already been duly noted by the Commission in the contested decision. In recital 26, paragraph 14, the Commission finds that it was decided on several occasions that Interciment was t o remain dormant. In recital 54, paragraph 2 , it acknowledges that that company 'did not apparently become operational'.

3122 Holderbank considers that, if it could have had that document available to it in order to prepare its defence to the SO, it would have supported its argument regarding Blue Circle's decision not to take part in Interciment.

3123Holderbank also relies on the following extract from the information supplied by Italcementi on 21 March 1990 following a request for information by the Commission (documents 33.126/15978 to 15985, in particular 15984, mentioned above at paragraph 3117):

'These were bearer shares. According to what Holderbank told us orally, until the latter repurchased our 12.5% holding in the shares, Holderbank and our company were the only members.'

3124 It claims that that extract would have enabled it to support its argument that, other than itself, Italcementi had been the only undertaking to hold shares in Interciment, before reselling its shares to Holderbank on 7 November 1988.

3125 Nevertheless, the Court points out that the Blue Circle internal m e m o r a n d u m of 20 October 1987 (document 33.126/10959) had been classified 'A: European producers' for the purposes of consulting the file during the administrative procedure and it was also in the Box (see paragraph 95 above). Holderbank could therefore have used that document in order to support its reply to the SO. In those circumstances, it cannot now rely on that document in order to demonstrate the existence of any infringement of its rights of defence during the administrative procedure.

3126 In any event, the evidence which it finds in that internal memorandum and in the extract of information supplied by Italcementi on 21 March 1990 were duly noted by the Commission in the contested decision.

3130 Last, reproducing Holderbank's o w n statements supplied following a request for information (document 33.126/18329), it points out (contested decision, recital 2 6 , paragraph 9):

'Apart from Holderbank, one other member [Italcementi] of the "European Task Force" subscribed and paid up its shares. (Another member [Blue Circle] paid the relevant amount, but never became an actual shareholder. T h e member in question preferred t o request the postponement sine die of the transmission of the shares t o the holders and subsequently never requested any such transmission, apparently through lack of interest. It is for this reason, and in view of the relatively small amounts involved, that n o refund has so far taken place.) N o document w a s drawn u p on this subject; proof of this m a y be deduced from the wording of the document communicated in reply to question 7/e (abovementioned letters dated 2 2 September 1 9 8 6 , t h r o u g h which H o l d e r b a n k requested p a y m e n t of share quotas). F u r t h e r m o r e , Holderbank repurchased all the shares some time ago and is thus the only shareholder in Interciment SA, a company which has n o t so far h a d any activity.'

3131 Any observations which Holderbank might have been able to put forward during the administrative procedure in order to claim that, apart from Italcementi's temporary share- holding in Interciment's capital, no undertaking other than itself subscribed to shares in the Joint Trading Company, could thus only have confirmed evidence duly taken into account by the Commission in the contested decision. By contrast, they could not have shed a different light

— conceited practices designed to withdraw Calcestruzzi as a customer from the Greek producers, and from Titan in particular (Article 4(3)(a));

— an agreement relating to the contract and agreements signed on 3 and 15 April 1987 having as their aim the prevention of imports of Greek cement by Calcestruzzi (Article 4(3)(b)).

3134 The Commission alleges that the first infringement was committed by the three Italian cement producers, Italcementi, Unicem and Cementir, and also the 'other participants in the "Cembureau Task Force"' (contested decision, recital 55, paragraph 1). The second infringement is alleged against the three Italian producers alone.

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JUDGMENT OF 15. 3. 2000 -JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

A — Concerted practices designed to withdraw Calcestruzzi from the Greek producers, and from Titan in particular (contested decision, Article 4(3)(a)).

1. Existence of concerted practices

3138 In its exposition of the facts concerning the measures to defend the Italian market (contested decision, recital 2 7 , paragraph 2), the Commission states:

' O n 30 April 1986, the Greek producer Titan ... and Calcestruzzi ..., the largest Italian ready- mix concrete producer, signed a five-year contract under which Titan undertook to sell and Calcestruzzi to buy up to a m a x i m u m of 4 4 0 000 tonnes of cement a year, with the quantities actually deliverable each year being specified in subsequent agreements (documents 33.126/16361 to 16368 and 19210 to 19217).'

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3139 The Commission adds (recital 27, paragraph 3, first paragraph) that the problem of imports of Greek cement into Italv by Calcestruzzi was then brought before the ETF and discussed at several of its meetings from 17 June 1986 onwards, and at the meetings of Head Delegates on 9 September and 6 November 1986. An internal Blue Circle memorandum of 4 September 1986 (documents 33.126/11026 and 11027) shows that Blue Circle raised the problem of exports into Italy with Titan (paragraph 3, second subparagraph).

3I43 In substance, the applicants put forward seven arguments challenging the existence of the concerted practices found in Article 4(3)(a) of the contested decision.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

3144 First, several of them maintain that the Commission has not established that the problem of imports by the Ferruzzi/Calcestruzzi Group of cement from Greece into Italy had given rise to unlawful collusion between cement producers at European level.

3146 Uniland claims that in order to establish the alleged concerted practices the Commission relies on a vague allusion to alleged dissuasive measures in the Zurich/Céligny document (recital 2 7 , paragraph 1). This applicant denies that the 'Calcestruzzi' problem was discussed at the meetings of the H e a d Delegates and of the ETF. It claims that the Commission cannot rely on statements made by Italian cement producers, since those statements are at most unilateral assertions in which the other participants had n o interest. Finally, the Commission has not established the existence of the various constituent elements of a concerted practice contrary to Article 85(1) of the Treaty. It has not shown that there was an actual contract between the parties, since the only evidence put forward is a series of meetings at which some of the participants unilaterally expressed their concerns but at which there was n o question at any time of an exchange of information or any discussion. N o r has it proved that the alleged collusion had led the parties to act in an anti-competitive manner on the market or to alter their behaviour on the market.

3147 Oficemen claims that the Commission has not established that the receipt of the information disclosed at ETF level was likely to influence its behaviour with regard to competition, or that of its members or that of the Italian cement producers.

3148 Italcementi states that the Commission puts forward no evidence of the existence of concerted practices. It maintains that, on the contrary, the exchange of information between undertakings (which took part within the framework of the ETF in the concerted lobbying activity and

3150 On that point, the Court points out that the concept of a concerted practice refers to a form of coordination between undertakings which, without having been taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition. The criteria of coordination and cooperation used to define that term must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition, according to which each economic operator must determine independently the policy which he intends to adopt on the c o m m o n market. This requirement of independence strictly precludes any direct or indirect contact between traders, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question. As is clear from the very terms of Article 85(1) of the Treaty, a concerted practice implies, besides undertakings' concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two (see, most recently, Commission v Anic, cited above at paragraph 2 7 0 , paragraphs 115 to 118, and Hüls v Commission, cited above at paragraph 155, paragraphs 158 to 161).

3151 In this instance, it must be found that at the meeting of the ETF in London on 17 June 1986, that is to say several weeks after the conclusion of the contract for the supply of cement between Calcestruzzi and Titan, it was agreed that M r d'Agostino of Italcementi should ' c o o r d i n a t e ] ... [the] Ferruzzi situation' (memorandum from M r Cheney of Blue Circle dated 19 June 1986, headed 'Points for action'; contested decision, recital 25, paragraph 11; document 33.126/18787).

3154 According t o Titan's letter of 2 September 1988 (contested decision, recital 2 7 , p a r a g r a p h 4; document 33.126/19196), mentioned above at p a r a g r a p h 3140, '[o]n 6 February 1987, Calcestruzzi for the first time seemļed] reluctant t o confirm shipments schedule claiming t h a t " t h e situation is in evolution with the local cement industries'".

3155 According t o the handwritten record d r a w n up on the following day by M r Marichal of Lafarge (contested decision, recital 27, p a r a g r a p h 5; document 33.126/4912), at the meeting of the ETF held in Geneva on 11 February 1 9 8 7 the Italian representative, Italcementi, reported as follows on the Italian situation:

'The agreement between the cement producers and Ferruzzi has been signed. It allows the threat to be removed of imports of 1.5 [million tonnes] by the latter group in a dozen ports, which w o u l d have been catastrophic for prices. Duration: 5 years. Apart from the cross holdings which will block Calcestruzzi, the Ferruzzi subsidiary BPE [ready-made cement], but also the parent company, Ciments de Ravenna, a series of measures designed t o consolidate the alliance nave been taken.

Ferruzzi will in return for its compliance receive the tidy sum of US$ 15 million a year for five years. The sum will be paid partly in securities (Montedison) and partly in cash: Ferruzzi will have t o use p a r t of the money t o purchase BPE companies or holdings in BPE companies so as t o put the coast under lock and key.

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CIMENTERIES CBR AND OTHERS V COMMISSION'

3156 At the meeting of the subgroup 'Defensive Measures' held on 17 March 1987, the Italian representative 'reiterated what had already been said at the meeting to the Task Force (cf. J.M. note of 12 February 1987), adding however that the agreement with Ferruzzi had not yet been finalised' ('Invasion threats to European cement producers: overview of the situation at 15 March 1987'; contested decision, recital 2 7 , paragraph 5; document 33.126/4860).

3157 Those various extracts show that shortly after the conclusion of the contract for the supply of cement between Calcestruzzi and Titan in April 1986 the question of imports into Italy by the Ferruzzi/Calcestruzzi group of Greek cement was raised at the level of the ETE, which had been set up in order to evaluate measures, in particular dissuasive measures, to eliminate imports of cheap cement (in particular those from Greece) threatening the stability of Western European markets (see paragraphs 2 5 3 7 and 2538 above).

3158 At the meeting of the ETF held on 17 June 1986, Italcementi was given the task of coordinating the 'Ferruzzi situation'.

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

3159 As a result of that collusion, vain attempts were made to induce Titan to terminate the contract which it had concluded with Calcestruzzi. At the same time, the Italian cement producers entered into negotiations with the Ferruzzi group for the purpose of persuading Ferruzzi's subsidiary Calcestruzzi to cease performing that contract.

3165 Second, Cementir claims that the measures to defend the Italian market had n o anti-competitive object.

3166 It is, however, apparent from the above analysis in paragraphs 3150 to 3163 that the object of the concerted practices implemented as a result of Calcestruzzi's imports of cement from Greece was to m a k e that undertaking cease to be a customer of Titan, and thus to avoid the threatened import of 1.5 million tonnes 'which would have been catastrophic for prices' (document

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33.126/4912). The Commission was therefore entitled to find that the object of those concerted practices was contrary to Article 85(1) of the Treaty.

3167 Third, Italcementi states that the record of the ETF meeting on 11 February 1987, drawn up by Lafarge's M r Marichal, merely refers to the signing of an agreement whose object was to avoid the threatened imports by Calcestruzzi of cement from Greece. T h a t document does not indicate that the agreement in question required Calcestruzzi to cease such imports.

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

3173 In the present case, the record of the meeting of the ETF on 11 February 1987 was drawn up by Lafarge's M r Marichal the day after the meeting in which he had taken part.

3174 It states that the Italian representative first informed the other members that the agreement between the Italian cement producers and the Ferruzzi group had been signed, which removed the threat of cement imports which was perceived as catastrophic for prices.

3175 Next, it reports that the Italian representative stated that 'Ferruzzi [would] in return for its compliance receive the tidy sum of USD 15 million a year for five years ... [a] sum [which would] be paid partly in securities (Montedison)'.

3176 Last, it mentions the problems raised by the Italian representative with regard to the non- performance of the Calcestruzzi-Titan contract.

3181 In any event, the absence of evidence of any measures to defend markets other than the Italian market cannot alter the evidence in the bundle of documents referred to in recital 27, paragraphs 3 to 5, of the contested decision, on the basis of which the Commission correctly found that there were concerted practices to defend the Italian market (see paragraphs 3151 to 3163 above).

3182 Italcementi's argument must therefore be rejected.

3183 Sixth, Cementir states that the measures to defend the Italian market had no anti-competitive effect, as is shown by the statistics indicating that Heracles' exports to Italy increased from 1987 onwards.

3184 It must, however, be recalled that the concerted practices implemented following the imports into Italy by the Ferruzzi group of cement from Greece led in the end to an agreement between the Italian cement producers and the Ferruzzi group, an agreement which, according to the report by the Italian representative at the meeting of the ETF on 11 February 1987, 'allow[ed] the threat to be removed of imports of 1.5 [million tonnes) by [the Ferruzzi group] in a dozen ports, which would have been catastrophic for prices'.

3185 In any event, those concerted practices were found by the Commission to be infringements on the sole ground that they had an anti-competitive object, which has in fact been established (see paragraphs 3151 to 3163). Such proof is sufficient for a finding that such concerted practices are contrary to Article 85(1) of the Treaty (see, to that effect, the case-law cited in paragraph 1674 above).

3189 CBR and Blue Circle's argument must therefore be rejected.

2. T h e applicants' participation in the concerted practices

3190 In the contested decision (recital 5 5 , paragraph 1), the Commission states:

'The pressure exerted on Calcestruzzi and the non-performance by Calcestruzzi of the contract for the purchase of Titan cement ... are the result of concerted practices between the Italian producers Italcementi, Unicem and Cementir and between them and the other participants in the Cembureau Task Force referred t o in paragraph 9 of recital 5 3 ... T h e other participants in the Cembureau Task Force are also parties t o the concerted practices, since the Calcestruzzi problem w a s discussed at a number of meetings of the Task Force and H e a d Delegates (see paragraphs 3 a n d 5 of recital 27) and since the strategies developed by the Task Force are based on the solidarity of all the participants (see paragraph 3 of recital 2 5 ) . '

3191 O n those grounds, the Commission attributes responsibility for the concerted practices t o all the applicants referred t o in Article 4(1) of the contested decision, namely: CBR, Cembureau, Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge, Aalborg, B D Z , Unicem, Asland, Uniland, Oficemen, Irish Cement, Italcementi, Holderbank, Aker, E U R O C, Cementir et Blue Circle.

3192 Apart from Cembureau and the SFIC (see paragraph 3 1 3 6 above), all those applicants have put forward arguments denying any involvement in tne concerted practice in question.

3195 Dyckerhoff states that it did not take part in the meetings of the ETF and that the documents referred to by the Commission in the contested decision show that the 'Calcestruzzi problem' was not tackled at the meetings in Rome on 28 May 1986, in Stockholm on 9 June 1986 or in Brussels on 6 November 1986, at which it was present. At the meeting of Head Delegates in Baden-Baden on 9 September 1986, in which it took part in the person of M r Lose, there was only a very brief report on the Italian situation. M r Lose was not up to date on relationships between Ferruzzi, Titan and the Italian cement producers. In any event, no decision or collusion on that point took place during that meeting. Emphasising that it had no business on the Italian market, Dyckerhoff claims that, according to the report given at the Baden-Baden meeting, the Italian producers had entered into negotiations with the Ferruzzi group a long time previously. The pressure brought to bear by the Italian producers on the Ferruzzi group to make it give up its supplies of Greek cement cannot therefore have been triggered off by that meeting.

3196 Aalborg claims that, although the Calcestruzzi-Titan contract was mentioned at the meeting in Baden-Baden on 9 September 1986, it was not invited to give any active support in that regard. N o r was it informed of subsequent developments in that matter. Moreover, it found no cause for concern in the purchase by Calcestruzzi of cement from Greece.

3197 Uniland denies that the solidarity rule to which all the participants in the meetings of the ETF supposedly conformed makes it possible to find that it participated in the concerted practices at issue. The reference to that alleged solidarity appears, moreover, in the Zurich/Céligny document, drawn up at meetings in which it did not take part. Uniland states that the presence of M r Rumeu at the meetings of Head Delegates of 9 September and 6 November 1986 does

3198 Irish Cement objects t o the w a y in which the Commission holds it responsible for measures t o defend the Italian market, when it is not referred t o in recitals 2 7 and 55 of the contested decision, which concern those defensive measures. It states that the Zurich/Céligny document, on which the Commission relies in recital 5 5 , paragraph 1, w a s conceived at meetings in which it did n o t take part. It claims, moreover, n o t t o have taken part in any discussion concerning the Ferruzzi problem at any meetings of the ETF, since it did n o t attend them, or at the meeting of H e a d Delegates in Baden-Baden on 9 September 1986. At that last meeting, the discussions concerning the measures to defend the Italian market did n o t take place in the presence of its representative, M r Quirke, or, in any event, he w a s n o t aware that those discussions related t o unlawful actions, since the sole purpose of his being there w a s t o coordinate contacts arranged with members of the European Parliament in Strasbourg on 10 September 1986. Irish Cement points out in this connection that it w a s only its nationality that was of interest t o the other participants in that meeting, since the member of the Commission responsible for competition policy at the time, M r Sutherland, w a s Irish. Finally, it is n o t apparent from the notes concerning the meeting in Brussels on 6 November 1986, in which it acknowledges having taken part, that the problem of imports into Italy of cement from Greece w a s discussed during that meeting.

3199 T h e Court points out that where an undertaking has, even without playing an active role, attended a meeting during which unlawful concerted action has been mooted, it is deemed t o have participated in that concerted action unless it proves that it openly distanced itself from it or informed the other participants that it intended t o take part in that meeting with different objects in mind (see, t o that effect, the case-law cited in paragraph 1353 above).

3203 Since CBR, Dyckerhoff, Aalborg, Uniland and Irish Cement have not shown that, at that meeting, they openly showed their disapproval of those unlawful practices or informed the other participants that they intended to take part in that meeting with different objects in mind, the Commission was therefore entitled to consider that those five undertakings had acceded to those practices or at least that they had given that impression to the other participants in a spirit of solidarity when confronted with the decision of the Greek cement industry to export its surplus production to the markets of Western Europe, a decision perceived as a serious threat to the stability of all those markets. The lack of evidence of conduct by those undertakings on that market in relation to the situation brought about by Calcestruzzi is irrelevant in that regard, because the Commission has established (see paragraphs 3151 to 3163 above) that the collusion to which they acceded at the meeting in Baden-Baden was in the nature of a concerted practice contrary to Article 85(1) of the Treaty in that it gave rise to conduct on the market by other undertakings involved in that same collusion. Moreover, in the absence of proof to the contrary, which it was for them to adduce, it must be held that those undertakings, which remained active on the market, took account of that collusion when determining their conduct on that market (Commission v Anic, cited in paragraph 2 7 0 above, and Hüls v Commission, cited in paragraph 155 above, paragraph 162).

3204 There being no need to consider the correctness of the applicants' arguments seeking to show that the Ferruzzi situation was not raised during the meeting in Brussels on 6 November 1986, it must therefore be concluded that the Commission was entitled to find in Article 4(3)(a) of the contested decision that CBR, Dyckerhoff, Aalborg, Uniland and Irish Cement participated in the concerted practices which sought to cause Calcestruzzi to cease being a customer of the Greek producers, and of Titan in particular.

3209 The Court points out that Ciments Français did not participate in any of the meetings of the ETF referred to in recital 2 7 , paragraph 3, of the contested decision. N o r did it take part in the meeting of H e a d Delegates and representatives of the ETF in Baden-Baden on 9 September 1986.

3210 M r Laplace, its Chairman, did attend the meeting in Brussels on 6 November 1986, also referred to in recital 2 7 , paragraph 3, of the contested decision. However, according to the notes relating to that meeting (contested decision, recital 2 5 , paragraphs 39 and 4 0 ; document 33.126/19007), Italcementi's M r Pesenti merely informed the other participants that 'while they had expected to see the first shipment of cement arrive in Sardinia in mid-October, nothing [had] yet taken place'. T h a t extract does not prove that the problem of Calcestruzzi's imports into Italy of cement from Greece was discussed during that meeting.

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3211 Consequently, Ciments Français' participation in the concerted practices in question cannot be inferred from its presence at the meeting in Brussels on 6 November 1986.

2 . 3 . Heidelberger

3216 Heidelberger claims that, according to the contested decision, the concerted practices began on 17 June 1986. The Commission has proved its presence only at the meeting in Rome on 28 M a y 1986. In those circumstances, it cannot be held responsible.

I I - 1251

JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

3217 The Court points out that Heidelberger did not in fact take part in any of the meetings referred to by the Commission in recital 2 7 , paragraph 3, of the contested decision.

3218 In recital 5 5 , paragraph 1, of the contested decision, the Commission, referring to the Zurich/ Céligny document mentioned in recital 2 5 , paragraph 3, claims that the strategies developed by the Task Force were based on the solidarity of all the participants. It also states (defence in Case T-42/95) that M r Lose, of Dyckerhoff, was asked to send to M r Schuhmacher, of Heidelberger, a copy of the minutes of the meeting of H e a d Delegates and representatives of the ETF in Baden-Baden on 9 September 1986, minutes which mentioned the negotiations between the Italian cement producers and the Ferruzzi group.

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2.4. Lafarge

3224 Lafarge cannot understand the Commission's claims that it brought pressure to bear on Calcestruzzi. N o n e of the documents referred to by the Commission, to which Lafarge had access, mentions its participation in such pressure.

3225 The Court points out that the Commission does not claim that Lafarge brought pressure to bear on Calcestruzzi in order to cause it to cease to be a customer of Titan. In recital 5 5 , paragraph 1, of the contested decision, the Commission states that the pressure brought to bear to that end on Calcestruzzi was the result of concerted practices between the Italian cement producers, on the one hand, and the participants in the Task Force, including Lafarge, on the other hand. The latter were party to the concerted practices in question on the grounds, in particular, that the 'Calcestruzzi problem' was discussed at several meetings of the ETF and of the Head Delegates.

3226 Lafarge does not deny attending:

3227 Since Lafarge has not shown that at those meetings it openly distanced itself from the unlawful measures mooted in relation to the Ferruzzi situation or that it informed the other participants that it intended to attend those meetings with different objects in mind, the Commission was entitled to take the view that Lafarge had acceded to those measures or at least that it had given that impression to the other participants in a spirit of solidarity when confronted with the decision of the Greek cement industry to export its surplus production onto the markets of Western Europe, a decision perceived as a serious threat to the stability of all those markets (see, to that effect, the case-law cited at paragraph 1353 above). The lack of evidence of conduct by Lafarge on that market in relation to the situation brought about by Calcestruzzi is irrelevant in that regard, because the Commission has established (see paragraphs 3151 to 3163 above) that the collusion to which they acceded at the meetings referred to paragraph 3226 above was a concerted practice contrary to Article 85(1) of the Treaty in that it gave rise to conduct on the market by other undertakings involved in that same collusion. Moreover, in the absence of proof to the contrary, which it was for Lafarge to adduce, it must be held that Lafarge, which remained active on the market, took account of that collusion when determining its conduct on that market (Commission v Anic, cited in paragraph 270 above, paragraph 121, and Hüls v Commission, cited in paragraph 155 above, paragraph 162).

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3232 However, in both the SO and the contested decision, the Commission separately identified the facts on the basis of which, correctly as far as Lafarge is concerned, it found, first, the infringement connected with the agreement on the setting-up of the ETF (SO, point 17; contested decision, recital 25) and, second, the infringements connected with the concerted practices directed at depriving the Greek producers and Titan in particular of Calcestruzzi as a customer (SO, point 19(d); contested decision, paragraph 27) (see above, paragraphs 2649 and 2650 and 3226 to 3228, respectively).

3233 Lafarge's argument, alleging infringement of its rights of defence and breach of the principle of the presumption of innocence laid down in Article 6(2) of the ECHR, must therefore be rejected.

2.5. BDZ and Oficemen

3234 BDZ states that recital 27 of the contested decision does not contain any allusion to either the BDZ or the participation of German representatives in the measures to defend the Italian market. It states that the ETF was a tool of the cement producers and not a Cembureau committee. In addition, none of the documents referred to in the contested decision reveals the express or implied approval by BDZ of the defensive measures in question.

3238 Since B D Z and Oficemen have n o t demonstrated that, at those meetings, their representatives openly distanced themselves from the unlawful measures mooted in relation t o the Ferruzzi situation or that they informed the other participants that they intended t o attend those meetings with different objects in mind, the Commission w a s justified in considering that they had acceded t o those measures or at least that they h a d given that impression t o the other participants in a spirit of solidarity when confronted with the decision of the Greek cement industry t o export its surplus production onto the markets of Western Europe, a decision perceived as a serious threat t o the stability of all those markets (see, t o that effect, the case-law cited at paragraph 1353 above). T h e lack of evidence of action by those t w o associations on that market in relation t o the situation brought about by Calcestruzzi is irrelevant in that regard, because the Commission has established (see paragraphs 3151 t o 3 1 6 3 above) that the collusion t o which they acceded at the meeting in Baden-Baden w a s in the nature of a concerted practice contrary t o Article 85(1) of the Treaty in that it gave rise t o action on the market by other undertakings involved in that same collusion. Moreover, in the absence of proof t o the contrary, which it w a s for them t o adduce, it must be held that those t w o associations took account of that collusion when determining their conduct on the market (Commission v Anic, cited in paragraph 2 7 0 above, paragraph 1 2 1 , and Hüls v Commission, cited in paragraph 155 above, paragraph 162).

referred to in Article 1 which has given rise to the imposition of a fine with regard to the market for grey cement. Oficemen's argument alleging breach of the non bis in idem principle must, therefore, be rejected.

3243 Oficemen considers that, by finding the members of the ETF responsible for the measures taken by the ETF solely on the basis of their being members, the Commission has departed from the criterion used to impugn the other measures implementing the Cembureau agreement. Those measures were attributed only to their authors, whether or not they were discussed at meetings involving other undertakings or associations of undertakings.

3244 However, that line of argument cannot prevail over the above analysis in paragraphs 3236 to 3240 concerning the merits of the Commission's finding that Oficemen participated in the concerted practices found in Article 4(3)(a) of the contested decision.

2.6. Unicem

3245 Unicem observes that it took part in only one meeting concerning the ETF, namely that of the subgroup 'Defensive Measures' on 17 March 1987. T h a t meeting, the object of which was lawful, does not establish any link between the presumed collusion at ETF level and Unicem. The applicant claims that no active or passive conduct on its part or on the part of the other European cement producers resulted from that meeting.

3246 The Court points out that, according to the minutes of the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 (contested decision, recital 2 5 , paragraphs 22 and 2 8 ; documents 33.126/18859 and 18860), '[s]everal meetings took place between the Italian cement producers and Ferruzzi and it appeared that an agreement might be reached with regard to the ready-mix cement market'.

3251 Moreover M r Alber, of Unicem, reported at the meeting of the subgroup 'Defensive Measures' on 17 M a r c h 1987 on the progress of negotiations between the Italian cement producers and the Ferruzzi group (contested decision, recital 2 5 , paragraph 4 7 ; documents 33.126/4858 and 4860).

3252 In those circumstances, the Commission was entitled to find in Article 4(3)(a) of the contested decision that Unicem had participated in the concerted practices designed to induce Calcestruzzi to cease being a customer of the Greek producers, and of Titan in particular.

3253 Nevertheless, the contested decision contains no evidence on the basis of which it can be held that Unicem participated in those concerted practices before 9 September 1986, the date of the meeting of H e a d Delegates and representatives of the ETF in Baden-Baden, in whose minutes mention is m a d e for the first time of the negotiations between the Italian cement producers and the Ferruzzi group. It follows that Article 4(3)(a) must be annulled in so far as it finds that Unicem participated in the infringement in question before that date.

2.7. Asland

3254 Asland states that it is not mentioned at all in the statement of facts concerning the measures to defend the Italian market. Moreover, the automatic application of the theory of a single and continuous agreement concerning the ETF cannot prove its involvement in such measures, since

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3259 The Commission relies next on the presence of Asland at the meeting in Stockholm on 9 June 1986.

3260 It is sufficient to point out here that that fact has not been established (see above, paragraphs 3060 to 3063).

3261 Finally, the Commission claims that Asland's membership of the ETF indicated its general acceptance of the ETF's rules and actions. It is not therefore necessary to produce evidence of its specific consent with regard to each measure adopted by the others.

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3265 However, it must be pointed out that Italcementi attended various meetings at which the Calcestruzzi problem was mentioned.

3266 It took part in the meeting of the ETF in London on 17 June 1986, at which it was given the task of 'coordinating the Ferruzzi situation' (contested decision, recital 2 5 , paragraph 1 1 ; document 33.126/18787).

3267 It took part in the meeting of H e a d Delegates and representatives of the ETF in Baden-Baden on 9 September 1986, at which it was stated that the negotiations under way between the Italian cement producers and Ferruzzi might lead to an agreement regarding the ready-mix concrete market, and that Titan might terminate its contracts with Ferruzzi at the end of 1987 (contested decision, recital 2 5 , paragraphs 22 and 2 8 ; documents 33.126/18859 and 18860).

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3268 It also attended the meeting of the ETF on 11 February 1987 (contested decision, recital 2 5 , paragraph 4 5 ; document 33.126/18760). At that meeting, it informed the other participants that the Italian cement producers and the Ferruzzi group had reached an agreement making it possible t o avoid threatened imports of cement by that group, a threat judged to be catastrophic for prices. It reported the problems connected in particular to the non-performance of the Calcestruzzi-Titan contract and sought the aid of its European colleagues with a view to resolving those problems (contested decision, recital 2 7 , paragraph 5; document 33.126/4912).

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

1986 (contested decision, recital 25, paragraphs 22 and 23; document 33.126/11857), and the meeting of the ETF on 11 February 1987 (contested decision, recital 25, paragraph 45; document 33.126/18760).

3274 Having regard to the above findings concerning those three meetings (see paragraph 3226 above), and in the absence of any evidence adduced by Holderbank to show that at these meetings it openly distanced itself from the unlawful measures which were mooted there concerning the Ferruzzi situation or that it informed the other participants that it was attending the meetings with different objects in mind, the Commission was justified in considering that Holderbank had taken part in such measures or at least given that impression to the other participants in a spirit of solidarity when confronted with the decision of the Greek cement industry to export its surplus production onto the markets of Western Europe, a decision perceived as a considerable threat to the stability of all those markets (see, to that effect, the case-law cited above at paragraph 1353). The lack of evidence of action by Holderbank on that market in relation to the situation brought about by Calcestruzzi is irrelevant in that regard, because the Commission has established (see paragraphs 3151 to 3163 above) that the collusion to which they acceded at the meetings referred to in paragraph 3273 above was in the nature of a concerted practice contrary to Article 85(1) of the Treaty in that it gave rise to action on the market by other undertakings involved in that same collusion. Moreover, in the absence of proof to the contrary, which it was for Holderbank to adduce, it must be held that Holderbank took account of that collusion when determining its conduct on the market (Commission v Anic, cited in paragraph 270 above, paragraph 121, and Hüls v Commission, cited in paragraph 155 above, paragraph 162).

to the SO), the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 (contested decision, recital 25, paragraphs 22 and 23; document 33.126/18857), the meeting of the ETF in Geneva on 21 October 1986 (contested decision, recital 25, paragraph 34; documents 33.126/18758 and 18897), and the meeting in Geneva on 11 February 1987 (contested decision, recital 25, paragraph 45; document 33.126/18760).

3278 The documents relating to the meetings on 19 August and 21 October 1986 do not show that at those meetings there was any specific discussion of the situation concerning the imports by the Ferruzzi group of cement from Greece.

3279 By contrast, at the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986, it was stated that the negotiations between the Italian cement producers and the Ferruzzi group might lead to results and that Titan might terminate its contracts with that group by the end of 1987. At the meeting on 11 February 1987, the Italian representative told the other participants that the Italian cement producers and the Ferruzzi group had reached an agreement to make it possible to avoid the threatened imports of cement by that group, a threat thought to be catastrophic for prices. In addition, he requested the aid of his European colleagues with a view to resolving the problems arising from the non-performance of the Calcestruzzi-Titan contract.

3281 The Commission was therefore entitled to find in Article 4(3)(a) of the contested decision that Aker and E U R O C had participated in the concerted practices designed to induce Calcestruzzi to cease to be a customer of the Greek producers, a n d of Titan in particular.

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3282 N o n e the less, since the contested decision does not contain any evidence to show that Aker and E U R O C acceded to those concerted practices before 9 September 1986, the date on which they participated in the meeting of H e a d Delegates and representatives of the ETF in Baden-Baden, Article 4(3)(a) must be annulled in so far as it finds that they participated in the infringement in question before that date.

2 . 1 1 . Cementir

3283 Cementir asserts that it never entered into negotiations with Calcestruzzi to implement an anti- competitive agreement seeking to prevent imports from Greece, of whose existence and content it was allegedly aware. It adds that it was never asked to bring any pressure to bear on Calcestruzzi.

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3289 In those circumstances, the Commission was entitled to find in Article 4(3)(a) of the contestéd decision that Cementir had participated in the concerted practices designed to induc( Calcestruzzi to cease to be a customer of the Greek producers, and of Titan in particular.

3290 However, the contested decision does not contain any evidence from which it can be concluded that Cementir participated in those concerted practices before 9 September 1986, the date ol the meeting of Head Delegates and representatives of the ETF in Baden-Baden in whose minutes the first report is made of negotiations between the Italian cement producers and the Ferruzz: group. It follows that Article 4(3)(a) must be annulled in so far as it finds that Cementir participated in the infringement in question before that date.

2.12. Blue Circle

3291 Blue Circle claims that its participation in the concerted practices in question is inferred by the Commission from a Blue Circle internal m e m o r a n d u m dated 4 September 1986 (contested decision, recital 2 7 , paragraph 3), in which it noted that Titan had told it that it was not going to cancel its contract with Calcestruzzi. That document does not, however, suggest that Blue Circle attempted to bring pressure to bear on Titan to do so.

agreement concerning the contracts and agreements signed on 3 and 15 April 1987, the purpose of which was to prevent imports by Calcestruzzi of cement from Greece (Article 4(3)(b)).

3295 With regard t o Blue Circle's participation in the infringement found in Article 4(3)(a) of the contested decision, the Court points o u t that in its internal m e m o r a n d u m of 4 September 1986 (contested decision, recital 2 7 , paragraph 3; document 33.126/11026) Blue Circle states: 'In regard t o Italy, Titan remain a d a m a n t that they will n o t cancel their contract with Ferruzzi before December 1 9 8 7 at the earliest when it appears they have an escape clause.' Those statements show that Blue Circle tried in vain t o persuade Titan t o p u t an early end t o the supply contract that it h a d just concluded with the Ferruzzi group.

3296 In any event, Blue Circle attended the meeting of the ETF on 17 June 1986 (contested decision, recital 2 5 , paragraph 1 1 ; documents 33.126/18756 and 18787), the meeting of H e a d Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 (contested decision, recital 2 5 , paragraphs 2 2 a n d 2 3 ; document 33.126/18857), the meeting of the ETF on 11 February 1987 (contested decision, recital 2 5 , paragraph 4 5 ; document 33.126/18760) and the meeting of the subgroup 'Defensive Measures' of 17 M a r c h 1987 (contested decision, recital 2 5 , paragraph 4 7 ; document 33.126/4858).

3. The duration of the infringement

3301 In Article 4(3)(a) of the contested decision, the Commission finds that the infringement lasted from 17 June 1986 until 15 March 1987.

3302 T h e Court has already found that by taking 17 June 1986 as the date on which the infringement began in the case of CBR, Dyckerhoff, Aalborg, B D Z , Unicem, Uniland, Oficemen, Irish Cement, Aker, E U R O C and Cementir, the Commission wrongly assessed the start of their participation in that infringement. That date must therefore be fixed at 9 September 1986 (see paragraphs 3 2 0 5 , 3240, 3 2 5 3 , 3282 and 3290 above).

3303 Aker, E U R O C and Cementir state that they did not attend either of the t w o meetings of the ETF on the dates taken to mark the start (17 June 1986) and end (15 March 1987) of the infringement. T h e duration of their participation in the infringement must in any event therefore be reduced.

3304 T h e start of the infringement in question has already been fixed at 9 September 1986 in the case of Aker and E U R O C (see paragraph 3282 above) and in the case of Cementir (see paragraph 3290 above).

3305 As regards the end of the infringement, the Court points out, with regard to Aker and E U R O C , that they were represented at the meeting of the ETF on 11 February 1987. There are therefore grounds for concluding that the concerted practices in question influenced their conduct on the market until the end of the period of infringement fixed by Article 4(3)(a) of the contested decision. It follows that the Commission was entitled to find that Aker and E U R O C participated in the concerted practices in question until 15 March 1987.

3309 As regards the date of 15 M a r c h 1987, taken as the date marking the end of the infringement, it relates, according to the evidence contained in recital 2 7 , paragraphs 3 and 5, of the contested decision (see documents 33.126/4858 to 4861), to a meeting of the subgroup 'Defensive Measures' held on 17 M a r c h 1987, and not 15 M a r c h 1987 as erroneously stated by the Commission (see paragraph 3141 above), a meeting at which, according to the documents available, a report was given for the last time of the negotiations between the Italian cement producers and the Ferruzzi group.

3310 In those circumstances, Blue Circle, which also attended the meeting of 17 June 1986 and the meeting of 17 M a r c h 1987, cannot properly allege any lack of statement of reasons as to the duration of the infringement.

4. Access to the file

3311 Following the measures of 2 October 1996 and 18 and 19 June 1997 concerning access to the file, Ciments Français and Asland submitted documents which, they allege, could have been useful to them during the administrative procedure in order to defend themselves against the claim that they participated in the concerted practices concerning Calcestruzzi.

3312 There is n o longer any need to assess whether those observations are well founded, since it has already been found that Article 4(3)(a) of the contested decision must be annulled in so far as it finds that those t w o undertakings participated in the infringement referred to therein (see paragraphs 3215 and 3263 above).

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3316 In point of fact, those comments would not have prevented the Commission from finding that CBR had participated in the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986, at which mention was made of the negotiations under way concerning the Calcestruzzi problem. Therefore, they would not have provided grounds for dismissing CBR's responsibility in the concerted practices in question.

3317 In its observations of 5 January 1998, Dyckerhoff cites several documents which, in its opinion, contradict the evidence put forward in the contested decision concerning pressure brought to bear on Calcestruzzi.

3318 It cites, first, the letter sent by Titan on 2 September 1988 to its lawyers in London (documents 33.126/19195 to 19197).

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95 3319 O n that point, without there being any need to consider whether the observations put forward by Dyckerhoff on the basis of that letter are of any relevance, it is sufficient to observe that the letter was expressly mentioned in point 19(d) of the SO, in the statement of facts concerning the measures to defend the Italian market.

3320 The first t w o pages of that letter (documents 33.126/19195 and 19196) were moreover to be found in the Box (see paragraph 95 above). Dyckerhoff could therefore have used them in support of its reply to the SO. In those circumstances, it cannot n o w invoke them in order to establish that there was a breach of its rights of defence during the administrative procedure.

3324 Finally, Dyckerhoff points out in its observations of 7 February 1997 that it is apparent from the Italian file that Dyckerhoff played no role in the measures concerning Calcestruzzi, since the latter was linked to the Italian producers through GU SIPAC, of which Dyckerhoff was not part (documents 33.126/15990 to 15997, 12145 to 12166, 12180 to 12188, 12204 to 12217 and 12231 to 12341).

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3325 Nevertheless, any comments which Dyckerhoff might have put forward during the procedure on the basis of the documents to which it refers would not have prevented the Commission from finding that it had participated in the meeting of Head Delegates and representatives of the ETF in Baden-Baden on 9 September 1986 at which a report was made of initiatives under way in connection with the Ferruzzi situation. Therefore, they would not have provided grounds for dismissing Dyckerhoff's responsibility in the concerted practices referred to in Article 4(3)(a) of the contested decision.

3326 Uniland and Oficemen maintain, in their observations of 10 February 1997 and 3 March 1998, that in the documents to which they had access following the measures of organisation of procedure referred to in paragraph 3311 above there is no evidence of their participation in the concerted practices found in Article 4(3)(a) of the contested decision. On the contrary, several documents show that the measures to defend the Italian market against imports from Greece did not arise out of a multilateral concerted practice in which they participated but out of unilateral reactions by the Italian producers.

3328 In their observations of 3 M a r c h 1998, Uniland and Oficemen rely on an extract from Unicem's replies to the Commission in October 1989 concerning the activities of the ETF (documents 33.126/12060 to 12065, especially 12063), and also on the letter in which Calcestruzzi explains to the Commission that the falling off in its imports from Greece could be explained by the sole fact that the Italian Government had not issued it with the necessary authorisations for the construction of a quay for the unloading of cement (documents 33.126/16317 to 1 6 3 2 1 , especially 16319, mentioned at paragraph 3322 above). They also refer to the letter sent by Titan on 2 September 1988 to its lawyers in London (documents 33.126/19195 to 19197) and to documents 33.126/19188 to 19193 and 19198 to 19200. Finally, they refer once again to the minutes of the meeting of the Italian cement producers at Cementir in Rome on 12 January 1988 (documents 33.126/19871 to 19873).

3329 The Court points out that, for the reasons set out in paragraphs 3319 to 3321 above, Titan's letter of 2 September 1988 to its lawyers in London cannot be relied on to any advantage by Uniland and Oficemen in order to prove infringement of their rights of defence during the administrative procedure.

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3330 In any event, the comments which those two applicants might have been able to put forward during the administrative procedure on the basis of the various documents identified at paragraphs 3 3 2 7 and 3328 above could not have prevailed over the documents referred to in recital 2 7 , paragraphs 3 to 5, of the contested decision, on the basis of which the Commission correctly found in Article 4(3)(a) of the contested decision that there were concerted practices at European level that were designed, in an anti-competitive spirit, to induce Calcestruzzi to cease to be a customer of the Greek producers, and of Titan in particular.

3333 However, those observations by the applicants could not have prevailed over the documents referred t o in recital 2 7 , paragraphs 3 to 5, on the basis of which the Commission correctly found that there were concerted practices designed, in an anti-competitive spirit, to induce Calcestruzzi to cease to be a customer of Titan, a finding which was sufficient to support the conclusion that those concerted practices were contrary to Article 85(1) of the Treaty (see the case-law cited above at paragraph 837).

3334 In its observations of 8 December 1997, Holderbank claims, on the basis of the letter sent by Titan on 2 September 1988 to its lawyers in London (documents 33.126/19195 to 19197), that Calcestruzzi's non-performance of its contract concluded with Titan for the supply of cement was the result of an agreement between the Ferruzzi-Calcestruzzi group and the Italian cement producers alone, and not the result of any overall concerted practice in which Holderbank took part.

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3335 However, for the reasons set out in paragraphs 3319 to 3321 above, Holderbank cannot now rely on that letter to show the existence of a breach of its rights of defence during the administrative procedure.

3336 Holderbank also refers to the note concerning the meeting of 12 January 1988 of the Italian cement producers at Cementir (see paragraph 3328 above). That note shows how the Italian market was sealed off as regards imports of cement, in this instance imports from Yugoslavia. It also mentions the solidarity which the Italian cement producers were requested to demonstrate in order to confront those imports. Finally the note refers to the necessity for finding an agreement with the Greek producers in order to prompt them to reduce their exports, on pain of unleashing a price war. Holderbank considers that, if that document had been available during the administrative procedure, it would have been able to show that the sealing off of the Italian market was due, not to the measures adopted by the ETF, but simply to the actions of the local producers.

3338In their observations of 10 February 1997, Aker and EUROC refer to various documents mentioned at paragraph 3324 above. These documents, they claim, would have made it possible for them to show that the contracts concluded in April 1987 between Cementir and Italcementi, on the one hand, and Calcestruzzi, on the other hand, were the result of negotiations carried out at local level between the major Italian cement producers. None of those documents supports the Commission's argument that those contracts were the tool for implementing a plan of action that had been debated and approved at the meetings of the ETF at which Aker and EUROC were present. They refer also to Italcementi's notes of 15 October 1986 (documents 33.126/2945 to 2948), 26 October 1987 (documents 33.126/2949 to 2951) and 13 November 1987 (documents 33.126/2954 to 2960), which show that 'the Greek problem' was dealt with at the time on a purely bilateral basis between the major Italian cement producers and their Greek counterparts. They refer in particular to the following extract from the Italcementi note of 13 November 1987 which, as translated by them, states: 'We must wonder whom to contact, how to contact the Greeks and to propose a truly viable agreement which should not last more than two years, with the intention subsequently of managing the Greek cement industry better, with the European producers, either by direct participation in capital, or by an indirect presence.'

3339However, the observations that Aker and EUROC might have made during the administrative procedure on the basis of the various documents mentioned in the previous paragraph could not nave prevailed over the bundle of documents referred to in recital 27, paragraphs 3 to 5, of the

3341 However, the document in question shows at most that, nearly t w o years after the period of the infringement found in Article 4(3)(a) of the contested decision, bilateral negotiations were entered into between the Italian and Yugoslav markets, with a view t o restricting imports from Yugoslavia t o Italy. Any observations that Aker and E U R O C could have p u t forward on the basis of that document would therefore quite obviously n o t have altered the findings of fact, referred t o in paragraph 3339 above, concerning the concerted practices at European level at the time when the Calcestruzzi problem arose.

3342 In conclusion, the comments by CBR, Dyckerhoff, Uniland, Oficemen, Holderbank, Aker and E U R O C would not have had even a small chance of altering the outcome of the administrative procedure. Those applicants have not therefore shown in that regard that there w a s any breach of their rights of defence during the administrative procedure.

B — Agreement concerning the contracts a n d agreements signed in April 1987 with Calcestruzzi (contested decision, Article 4(3)(b))

3343 According t o Article 4(3)(b) of the contested decision, Italcementi, Unicem and Cementir 'infringed the provisions of Article 85(1) of the EC Treaty from 3 April 1987 t o 3 April 1992 by participating in an agreement relating t o the contracts and agreements signed on 3 and 15 April 1 9 8 7 having as their aim the prevention of imports of Greek cement by Calcestruzzi'.

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' O n 3 and 15 April 1987 the Italian cement producers Italcementi, Unicem, Cementir and Calcestruzzi signed agreements and contracts on the supply of cement and on cooperation with one another (documents 33.126/12145 t o 12342). Through the agreements and contracts, Italcementi, Unicem and Cementir jointly undertook t o meet all the cement requirements of the Calcestruzzi group and t o apply the price reduction specified; for its part, Calcestruzzi undertook t o channel half of the price reductions to a joint subsidiary of the four contractors, which w a s to invest the sums in ready-mix concrete companies or related activities, and to obtain at least 8 0 % of its cement requirements from Italcementi, Unicem and Cementir or from companies designated by them; the three cement producers reserved the right to terminate the agreements a n d contracts if Calcestruzzi's purchases from them were less than 9 5 % of its requirements.'

3346 The Commission then refers (recital 2 7 , paragraphs 7 to 10) t o a series of telexes exchanged in M a y and June 1987 between Calcestruzzi and Titan, on the one hand, and Italcementi and Titan, on the other. Those telexes show that, following the agreement reached with the three Italian cement producers, Calcestruzzi suspended performance of the contract which it had concluded in April 1986 with Titan. They also show that there were meetings between the Italian producers Italcementi, Unicem and Cementir, on the one hand, and Titan, on the other hand, in order to find a solution to the problems linked to the non-performance of that contract.

3349 First, they deny that the agreements signed with Calcestruzzi in April 1987 were motivated by any anti-competitive purpose.

3350 Unicem claims that those agreements did n o t have any connection with the E T F .The fact that, in connection with those agreements, it adopted a line of conduct that was quite independent of any non-Italian producer must be the best proof of that. It adds that the agreements in question had a lawful purpose. T h e relations between the Italian cement producers and Calcestruzzi are explicable on commercial grounds, which h a d nothing t o do with any international collusion. Calcestruzzi, which w a s the largest Italian customer on the cement market, wielded considerable purchasing power. T h e agreements in April 1 9 8 7 must be considered as the realisation of Calcestruzzi's long-term objective for obtaining a 1 5 % discount on all its purchases of cement in Italy. The price concessions made by Italcementi, Cementir and Unicem were the result of lawful competition. In addition, the offer made by the three Italian producers presented numerous advantages for Calcestruzzi compared t o the contract which it h a d concluded with Titan in April 1986: the standard of service, the physical closeness of the suppliers, the lower transport costs, greater flexibility in the performance of the contract, the availability of technical and commercial assistance by the Italian suppliers. T h e delivery contracts were signed jointly by Italcementi, Cementir and Unicem, because Calcestruzzi's considerable supply requirements could not have been met by one producer alone.

3353 The Court points out that none of those three applicants denies that the conclusion in April 1987 of the agreements between them and Calcestruzzi was the object of the 'agreement between the [Italian] cement producers and Ferruzzi' which was referred t o at the meeting of the ETF on 11 February 1987 (contested decision, recital 2 7 , paragraph 5; document 33.126/4912) and at the meeting of the subgroup 'Defensive Measures' on 17 March 1987 (same paragraph; document 33.126/4860).

3354 At the first of those t w o meetings, the Italian representative stated that that agreement allowed 'the threat to be removed of imports of 1.5 million tonnes by [the Ferruzzi group) in a dozen ports, which would have been catastrophic for prices' (contested decision, recital 2 7 , paragraph 5; document 33.126/4912). H e added: 'Ferruzzi will in return for its compliance receive the tidy sum of US$ 15 million a year for [the] five years [of the agreement and] will have to use part of the money t o purchase BPE [ready-mix concrete) companies or holdings in BPE companies so as to put the coast under lock and key'.

3355 N o r do the three applicants deny that the agreement between the Italian cement producers and Calcestruzzi referred to in the telexes mentioned by the Commission in recital 2 7 , paragraphs 7 and 10, of the contested decision corresponds to the agreement relating to the contracts and agreements signed in April 1987. According to that telex, that agreement led to the suspension of the deliveries of cement which had been agreed between Calcestruzzi and Titan.

3359 For its part, Cementir maintains that the meeting held in Luxembourg on 2 7 M a y 1 9 8 7 between the Italian producers and Titan, a meeting referred t o in recital 2 7 , paragraphs 9 t o 1 1 , of the contested decision, w a s part of an attempt t o settle a dispute arising out of the commercial negotiations between Italcementi, Unicem and Cementir, on the one hand, and Calcestruzzi, on the other, for the sole purpose of preventing that dispute from damaging the proper operation of the supply agreement concluded by Calcestruzzi with Titan. It adds that it participated in that meeting at the request of Calcestruzzi.

3360 However, it is apparent from the bundle of documents referred t o in recital 2 7 , paragraphs 7 t o 10, of the contested decision (documents 3 3 . 1 2 6 / 1 9 2 0 5 , 19204, 19201 and 19218) that a meeting w a s held in Luxembourg at the end of M a y 1 9 8 7 between Italcementi, Unicem and Cementir, on the one hand, and Titan, on the other, for the purpose, inter alia, of finding a solution to the problems connected t o the 'suspension of deliveries provided in the contract concluded at the time [April 1986]' between Calcestruzzi a n d Titan (contested decision, recital 2 7 , paragraph 10; document 33.126/19201), a suspension which had 'been determined by an agreement reached with the major Italian cement producers (Italcementi — Unicem — Cementir)' (contested decision, recital 2 7 , paragraph 10; document 33.126/19218).

3361 In any event, Italcementi and Cementir's line of argument cannot prevail over the extract from the report of the meeting of the ETF on 11 February 1 9 8 7 (see paragraph 3354 above), on the basis of which the Commission correctly concluded that the three Italian cement producers, Italcementi, Unicem and Cementir, had, by means of the agreement relating t o the contracts and agreements signed with Calcestruzzi in April 1987, intended t o prevent the threat of imports by the Ferruzzi group of 1.5 million tonnes of cement from Greece into a dozen ports, which would have been catastrophic for prices.

3365 Italcementi adds that, at the same time, the supply contract concluded by Calcestruzzi with Yugoslav cement producers was performed in full. The clause allowing the Italian producers to terminate the contract if Calcestruzzi did not obtain 9 5 % of its needs from them was never applied. Calcestruzzi therefore breached its contract with Titan quite independently, for financial reasons, exploiting the conditions offered by the Greek producer in order to negotiate the conclusion of contracts with its usual suppliers. It therefore demands the opportunity to inspect the documents in the Commission's file concerning the explanations given by Calcestruzzi during the administrative procedure as to why it breached its contract with Titan.

3366 Unicem further points out that Calcestruzzi's commitment to the three Italian cement producers was for 8 0 % of its supply needs. Those needs being estimated at around 2 200 000 tonnes a year, Calcestruzzi therefore had a residual import margin of 400 000 tonnes, that is to say 325 000 tonnes more than the quantities supplied by Titan. Calcestruzzi therefore wrongly claimed in its telex of 13 May 1987 to Titan that it could not 'import cement in Italy as per purchase contract already signed as consequence of an agreement [it had] reached with Italian cement producers' (contested decision, recital 2 7 , paragraph 7; document 33.126/19205). Calcestruzzi simply considered it more advantageous to obtain its supplies from Italian rather than Greek producers.

3367 It must however be stated that the applicants' argument cannot prevail against the bundle of documents referred to in recital 2 7 , paragraphs 5 to 10, of the contested decision, from which it is clear that Calcestruzzi suspended the deliveries provided for in the contract which it had signed with Titan in April 1986, not on the basis of an independent decision prompted by commercial reasons, but as a result of the agreement concluded in April 1987 with Italcementi, Unicem and Cementir, which, motivated by an anti-competitive objective, had undertaken to

3370 However, Italcementi's claim cannot prevail over the documents referred to in recital 2 7 , paragraphs 5 and 6, of the contested decision, on the basis of which the Commission found that the agreements of April 1987 between Italcementi, Unicem and Cementir, on the one hand, and Calcestruzzi, on the other, was the result of 'the agreements between the [Italian] cement producers and Ferruzzi', as noted by Italcementi itself at the meeting of the ETF on 11 February 1987 (see the handwritten report of that meeting; contested decision, recital 2 7 , paragraph 5; document 33.126/4912). According to Italcementi's own statements at that meeting, that agreement by the Italian cement producers was intended to make it possible to avoid the threat of imports of cement by Ferruzzi, which was perceived as catastrophic for prices. The Commission was therefore entitled to consider (contested decision, recital 5 5 , paragraph 2) that 'the contracts and agreements signed on 3 and 15 April 1987 ... represent[ed] the implementa- tion of an agreement between Italcementi, Unicem and Cementir t h a t is caught by Article 85(1) ...'.

3371 Sixth, Unicem, Italcementi and Cementir allege, with supporting statistics, that the contracts concluded in April 1987 with Calcestruzzi had n o effect restricting competition. Those contracts did not prevent Titan from carrying on exporting to Italy. The Greek producers even appreciably increased their presence on the Italian market at that time despite the considerable disadvantage caused by transport costs. Unicem states that Calcestruzzi continued to look for new import opportunities in order to satisfy its cement requirements, in particular by acquiring a Greek cement works.

3375 Cementir considers that Calcestruzzi's demand amounted to 5% of total demand on the Italian market. Any restrictive effects of the agreements concluded between the Italian producers and Calcestruzzi would therefore have had no effect on 95% of the Italian market.

3376 In this connection, it should be borne in mind that, in prohibiting agreements which have as their object or effect the restriction of competition and which are likely to affect trade between Member States, Article 85(1) of the Treaty does not require that the agreement in question should have actually affected such trade, which is difficult to prove to a sufficient legal standard in most cases, but requires it to be established that the agreement was capable of having such an effect. The condition that there be an effect on trade between Member States is therefore fulfilled where it is possible to foresee with a sufficient degree of probability, on the basis of a set of factors of law or of fact, that the agreement or practice in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States (see, to that effect, the case-law cited above at paragraph 1986).

3377 In this instance, the agreement referred to in Article 4(3)(b) of the contested decision involved 'the three [major] Italian producers (Italcementi — Unicem — Cementir)' (see Calcestruzzi's telex of 2 June 1987 to Titan; contested decision, recital 27, paragraph 10; document 33.126/19218). Its purpose was to induce Calcestruzzi, the main Italian producer of ready-mix concrete (contested decision, recital 27, paragraph 2), to abandon the import of 1.5 million tonnes of cement which would have caused a collapse in prices.

3381 The t w o conditions thus laid down for exemption from notification are cumulative. If either of those conditions is n o t satisfied, the agreement cannot qualify for exemption under Article 85(3) of the Treaty unless it has been notified in accordance with Article 4(1) of that regulation (see IAZ and Others v Commission, cited at paragraph 1320 above, paragraph 33).

3382 In addition, the second condition must be interpreted with reference to the structure of Article 4 of Regulation N o 17 and its aims of simplifying administrative procedure, which it pursues by not requiring undertakings to notify agreements which, whilst they may be covered by Article 85(1), appear in general, by reason of their special characteristics, to be less harmful from the point of view of the objectives of that provision (see Fonderies Roubaix, cited above at paragraph 3379, paragraph 6, and IAZ v Commission, cited above at paragraph 1320, paragraph 34).

3383 In this instance, the agreement found to exist in Article 4(3)(b) of the contested decision does not satisfy the second condition. It was intended (see paragraphs 3353 to 3 3 5 6 above) to prevent Calcestruzzi, the principal Italian producer of ready-mix concrete, from importing 1.5 million tonnes of cement and to prevent the collapse of prices as a result of those imports. The agreement therefore related to imports to an extent which cannot be considered harmless.

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3384 In consequence, the agreement could not qualify for the exemption from notification provided for in Article 4(3) of Regulation N o 17. Failing notification, it could not therefore qualify for exemption under Article 85(3) of the Treaty.

3388 In its observations of 10 February 1997, Italcementi quotes the following extract from the minutes of the meeting of Heracles' board of directors on 23 July 1986 (document 33.126/19880): 'That agreement [the Calcestruzzi-Titan Agreement of 30 April 1986] ... does not contain any exclusive dealing clause inasmuch as the Italians have undertaken [to buy] 7 0 - 500 000 tonnes a year, which allows them to obtain supplies from any other producer.' Italcementi considers that document would have been useful to it during the administrative procedure in order to point out the arbitrariness of the connection established by the Commission in the SO, and then in the contested decision, between the signing in April 1987 of five-year supply contracts between Calcestruzzi and the three Italian cement producers Italcementi, Unicem and Cementir, and the concern to prevent Calcestruzzi from importing cement from Greece.

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JUDGMENT OF 15. 3. 2000 —JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

3389 In its observations of 26 November 1997, Italcementi refers to a series of contracts for the supply of cement and clinker from Greece to Italian customers, and Titan's balance sheet for the year 1989 (documents 33.126/20140 to 2 0 1 4 7 , 20148 to 2 0 1 5 6 , 2 0 1 5 7 to 2 0 1 6 7 and 19433 (pp. 2 2 and 23)). Those documents go to show that, when the three Italian cement producers concluded the supply contracts with Calcestruzzi, imports from Greece, in particular Titan's imports, were flooding the Italian market. They thus contradict the Commission's assertions that the Italian market had been closed to Greek cement producers. In addition, they prove the total absence of any connection between those contracts and the actions taken by the ETF to confront the Greek imports.

3391 In its observations of 29 December 1997, Cementir relies on a series of documents showing that exports from Greece, which had been artificially maintained by substantial public subsidies wrongly tolerated by the Commission, and by export cooperation agreements concluded a long time previously between Greek producers (documents 33.126/19369 to 19377, 19387, 19389 and 19412), reached a particularly high level during the whole period considered in the contested decision, and that they even grew after 1987 (documents 33.126/20275 to 2 0 2 8 2 , 2 0 2 9 4 , 1 9 8 8 9 , 1 9 7 8 1 , 2 0 1 2 4 to 2 0 1 3 7 , 2 0 1 4 0 to 2 0 1 5 6 , 1 9 4 3 3 , 2 0 0 0 1 , 1 9 4 0 1 and 19410). All those documents, which illustrate h o w deeply the Italian market was penetrated by Greek exports, are at variance with the existence, alleged by the Commission, of a European agreement for the protection of home markets. In any event, they show that that agreement had n o effect in Italy, which the Commission ought to have taken into consideration, at the very least when setting fines. They also bear out Cementir's argument that its participation in the Calcestruzzi agreements was inspired by strictly commercial consideration and that those agreements had n o damaging effect on the trade in cement between Italy and Greece.

3392 The Court points out, however, that any observations which Italcementi and Cementir might have been able to formulate during the administrative procedure on the basis of the documents to which they now refer could not have prevailed over the bundle of documents referred to in

3396 It is clear from the foregoing considerations (paragraphs 3343 to 3395) that the Commission was fully entitled to find in Article 4(3)(b) of the contested decision that Italcementi, Unicem and Cementir infringed the provisions of Article 85(1) of the Treaty from 3 April 1987 to 3 April 1992 by participating in an agreement relating to the contracts and agreements signed on 3 and 15 April 1987 having as their aim the prevention of imports of Greek cement by Calcestruzzi.

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/9S, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

Measures intended to deflect the Greek production surplus and to curb imports of cement from Greece into the Member States (contested decision, Article 4(4))

3397 In Article 4(4) of the contested decision the Commission finds a number of infringements relating to measures which were designed 'to deflect the Greek production surplus and to curb Greek cement imports into the Member States':

— a concerted practice between Blue Circle, Castle and Rugby designed to prevent and/or reduce Greek cement imports into the United Kingdom (Article 4(4)(a));

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— an agreement between Aker, E U R O C and Titan designed to deflect quantities of cement and clinker produced by Titan to Africa, the United States and the Bahamas and to prevent direct sales of such products by Titan on the European markets (Article 4(4)(h)).

3398 Before examining the lawfulness of that provision of the contested decision, the Court points out that Dyckerhoff (T-35/95), Ciments Français (T-39/95) and Halkis (T-104/95) deny having taken part, in the context of the ETF, in persuasive measures to encourage the purchase of cement and clinker from Greece.

3399 However, those three undertakings are not alleged to have committed any of the infringements found in Article 4(4) of the contested decision. Their arguments must therefore be rejected from the outset.

3400 It should also be pointed out that, in the observations it lodged on 10 February 1997 following the measure of 2 October 1996 regarding access to the file (see paragraph 164 above), Titan (T-64/95) relied on a number of items in the Italian file which, in its view, would have enabled it to show that there were no agreements or concerted practices between the Italian and Greek producers seeking to divert the Greek production surplus away from European markets and/or prevent exports from Greek producers to those markets, in particular to the Italian market.

3404 It goes on to state (paragraph 12, first subparagraph):

'... it is apparent from a number of references in the documents obtained by the Commission that Blue Circle was not acting solely for its own account, but also for that of the two other British producers, Rugby and R T Z (now Castle). Blue Circle took defensive measures against imports on various occasions and got the other two companies to bear some of the costs. This may be seen from the following:

(a) the memorandum on the meeting held on 16 June 1986 between Mr Horner and Mr Presanis (document 33.126/10991) contains an explicit reference to Rugby and RTZ: Blue Circle was counting on their financial support so as to reduce the cost which it would otherwise have to bear alone for the measures envisaged with Titan;

(b) the internal Blue Circle memorandum relating to a meeting with Titan held on 17 September 1986 (document 33.126/11080) refers to a position which, in its talks with Titan, Blue Circle attributes to "the United Kingdom industry" as a whole;

(c) the internal Blue Circle memoranda of 7 September 1987, 22 October 1987, 18 December 1987 and 8 January 1988 (document 33126/11195 to 11198) show that Blue Circle had managed to get the other two companies to bear part of what it called the "Import Battle Costs". In particular, the memorandum of 18 December 1987 (document 33126/11197) reveals that there was a general requirement to share the costs relating to several years, which made it unnecessary to have any specific prior agreement for each operation.'

3405 O n the basis of those various documents, it concluded (recital 56, paragraph 3) that there was a concerted practice between Blue Circle, Rugby and Castle aimed at preventing and/or reducing Greek cement imports into the United Kingdom.

3408 The Commission, which raised no objection to the production of those documents, acknowl- edged that they led it to consider that the offer in question was not related t o the costs incurred in the fight against Greek imports. It also acknowledged that in light of those documents it could not rely, as it had relied in the contested decision, on the four internal Blue Circle memoranda referred to in recital 2 8 , paragraph 12, first subparagraph, (c), of the contested decision in order to find that Castle had participated in the infringement referred t o in Article 4(4)(a).

3409 So as to allow the parties to submit their observations on the documents produced by Castle, the oral procedure was reopened in Case T-53/95 Rugby v Commission pursuant to Article 62 of the Rules of Procedure.

3410 T h e Commission then acknowledged that on reading those documents it could no longer rely on the four internal Blue Circle memoranda referred to recital in 2 8 , paragraph 12, first subparagraph, (c), of the contested decision, in finding that Rugby had participated in the infringement referred to in Article 4(4)(a).

3 4 1 1It is none the less necessarv t o ascertain what it is in the documents relied upon by Castle that sheds a different light on the content of the four internal Blue Circle memoranda in question to such an extent that they should be excluded as evidence when establishing the reality of the concerted practice between Blue Circle, Rugby and Castle referred to in Article 4(4)(a). That is in order t o assess the effect of those documents on the other evidence adduced in that connection by the Commission in the contested decision.

3415 The documents relied upon by Castle (see paragraph 3 4 0 6 above) are those in the annex to the internal Blue Circle m e m o r a n d u m of 7 September 1987 (document 33.126/11195), a point which was not challenged by the Commission at the hearing.

3416 They describe first of all (documents 33.126/11199 t o 11204) nine cases in which, during the period from 1983 to 1986, Blue Circle incurred costs on behalf of the British cement industry in the fight against imports into the United Kingdom:

Item 1 Bulk Freighters Item 2 Hego Item 3 M a r c o n Item 4 Cebo Item 5 B C M (UK) Item 6 East German Cement Item 7 Cementa Item 8 White M o u n t a i n Item 9 M H S Cement Sales.

3417 They contain (document 33.126/11205) a 'suggested apportionment' between Blue Circle, R T Z and Rugby of the costs involved in those various cases.

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3423 In that connection, it should be stated that the last-mentioned document, drawn up by M r H o r n e r (Blue Circle) the day after his meeting on 16 June 1986 with M r Presanis (Titan), relates a series of 'concepts arrived at' by the parties with regard to cement and clinker purchase/sale transactions involving Blue Circle, the Greek producers Heracles and Titan, and Bouri (agent for the Greek producers in the United Kingdom), and with regard to Blue Circle's charter of a Bouri terminal. As things stood at the time, it is apparent that the purpose of those discussions was to find a solution intended to halt or reduce imports into the United Kingdom of cement from Greece. The m e m o r a n d u m states however: 'Bouri will be more expensive to remove once he starts selling.'

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JUDGMENT OF 15. 3. 2000 — JOINED CASES T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/95, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 AND T-104/95

3424 N o t e (b) of that document, to which the Commission specifically refers, states:

'[P]rices are tentative — subject to negotiation. If achieved BCI should not have additional cash outlay beyond G D R commitment and Rugby and R T Z still pay their proportion of nett loss, i.e. $ 5 per tonne'.

3425 T h a t statement shows that Blue Circle, which was confident at the time that Rugby and R T Z would agree to contribute to the costs of the measures which it had been taking since 1983 in the fight against imports into the United Kingdom, 'was counting on their financial support so as to reduce the cost which it would otherwise have to bear alone for the measures envisaged with Titan' (contested decision, recital 2 8 , paragraph 12, first subparagraph, (a)).

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