C-298/98

FINNBOARD V COMMISSION

OPINION OF ADVOCATE GENERAL MISCHO deliveredon 18 May 2000 *

1. By application lodged on 29 July 1998 2. In its action before the Court of First Metsä-Serla Sales Oy, formerly Finnish Instance, Finnboard sought the annulment Board Mills Association (Finnboard) (here- of the Decision in so far as it concerned inafter 'Finnboard') appealed against the Finnboard and, in the alternative, a reduc- judgment of the Court of First Instance of tion in the amount of the fine. 14 May 1998 in Finnboard v Commission ' (hereinafter 'the contested judgment'). That judgment had ruled on the action which it had brought against Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the EC 3. In the contested judgment, the Court of Treaty (IV/C/33.833 — Cartonboard, 2 First Instance upheld Finnboard's applica- hereinafter 'the Decision'). The Decision tion in part, partially annulling the order imposed fines on 19 manufacturers which that the applicant refrain from participat- supplied cartonboard in the Community on ing in the future in certain kinds of the ground that they had infringed Arti- exchange of information between under- cle 85(1) of the EC Treaty (now Arti- takings in the cartonboard sector, but cle 81(1) EC). In respect of the amount of dismissed the remainder of the application, the fine imposed on Finnboard, Article 3(v) particularly in so far as concerns the fine of the Decision provided: imposed on the applicant.

(1) annulling the Decision notified to the appellant on 5 August 1994 — reject the appeal; and published in the Official Jour- nal of the European Communities on 19 September 1994, in so far as it concerns the appellant, — order the appellant to pay the costs of the appeal,

in the alternative, and, furthermore, seeks the form of order at first instance, namely that the Court of First Instance should:

reducing the amount of the fine;

— dismiss the application;

(2) ordering the respondent to pay the costs. — order the applicant to pay the costs.

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OPINION OF MR MISCHO — CASE C-298/98 P

The second plea: the reductions made in fines imposed for infringement of the the fines imposed on some members of the competition rules. cartel

11. By this plea the appellant is complain- 15. The appellant maintains that, by acting ing that the Court of First Instance did not in that way, the Commission, without any censure the Commission's exercise of its legal justification, adopted general and discretion to reduce the fines imposed on abstract rules, when it should have exer- some of the companies for their participa- cised its discretion in each specific case, and tion in a cartel in the cartonboard sector. seriously prejudiced the rights of the defence, thus committing a double in- fringement of Community law which the Court of First Instance should have cen- sured.

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18. However, it will be noted, in particular, 22. According to the appellant, giving a that the appellant's attitude is paradoxical. discount to undertakings which adopt a It criticises the Commission for having, as it cooperative attitude not only penalises were, laid down scales for the grant of those undertakings which intend to put in reductions justified by the attitude of the a defence and which, ultimately, will have various members of the cartel during the to pay higher fines than those imposed on administrative procedure, and having the undertakings which admitted the in- thereby substituted a general rule for the fringement straightaway, but dissuades individual assessment which ought to char- even those which had intended to put in a acterise the exercise of its power to impose defence from doing so, because of the price fines under Regulation No 17. to be paid for exercising that fundamental right.

19. However, without a doubt, if the Commission had not clearly linked the different levels of reduction in fine to the 23. I think it is impossible to endorse this different attitudes adopted by the under- view of the situation created by the taking takings during the administrative proce- into account of the degree of cooperation dure, the appellant would have criticised it given by undertakings. for taking an arbitrary course of action or, at least, for not having satisfied all the requirements of the principle of equal treatment.

26. There would be justification for that Although there was already strong attitude only if it had been established that documentary evidence to prove the the Commission does not hesitate to fine existence of a cartel, Stora's sponta- undertakings solely on the basis of a firm neous admission of the infringement belief and does not take the trouble to and the detailed evidence which it prove an infringement and ascertain who is provided to the Commission has con- answerable for it. tributed materially to the establishment of the truth, reduced the need to rely upon circumstantial evidence and no doubt influenced other producers who might otherwise have continued to 27. The attitude would be all the more deny all wrongdoing. Rena for its part irrational in that it would presuppose a provided important documentary evi- total loss of confidence in the Community dence to the Commission on a volun- judicature, which would be considered tary basis. incapable or unwilling to censure any misuse of powers by the Commission.

29. These reasons cannot be criticised in The turnover figure to be taken into the light of the requirements laid down in consideration the relevant case-law of the Court of Justice on the basis of which I reached the conclusion that Finnboard's first plea should be rejected. 32. In support of the first of these com- plaints, Finnboard argues that, although its members had received the statement of objections and had been informed in it that the Commission intended imposing a fine on them, the Decision does not state that they committed any infringement. That precludes their turnovers being taken into account in order to fix the fine, since, 30. For these different reasons, Finnboard's according to the wording of Article 15(2) second plea must be rejected. of Regulation No 17, it is the turnovers of the undertakings which have participated in the infringement which are to be taken into account.

33. The appellant does not deny that the Court has held, in the case of associations The third plea: the turnover figure taken of undertakings, that the turnover of the into consideration in order to fix the member undertakings may be taken into amount of the fine imposed on the appel- consideration, but submits that, according lant to the Court of First Instance, that pre- supposes that the association can bind its members, that is to say, according to the appellant, that the members played a part in the infringement.

31. By its third plea, submitted in the alternative since it seeks to obtain a reduc- tion in the amount of the fine whose very 34. The Court of First Instance, it alleges, validity the appellant is contesting, the was wrong to take the view that Finnboard appellant complains that the Commission, could bind its members by concluding sales when determining the turnover to be taken agreements on their behalf. into consideration for fixing the amount of the fine imposed on it, took into account the turnovers of the four undertakings which sell their cartonboard productions through the appellant and also wrongly 35. Moreover, the Court of First Instance determined the turnover figures of those could not, without contradicting itself, four undertakings. hold, in order to justify the imposition of

a fine on Finnboard, that Finnboard was Court of First Instance in CB and Europay acting autonomously and also hold, in its v Commission, 8in which it states: judgment in Metsä-Serla and Others v Commission, 7as a ground for the joint and several liability of the members for payment of the fine imposed on Finnboard, that Finnboard acted only as an auxiliary 'The Court considers that the use of the organ of those members. general term "infringement" in Arti- cle 15(2) of Regulation No 17, inasmuch as it covers without distinction agreements, concerted practices and decisions of asso- ciations of undertakings, suggests that the ceilings specified by that provision apply in the same manner to agreements and con- 36. I consider the Commission's reply to certed practices, and also to decisions of these assertions to be wholly satisfactory. associations of undertakings. It follows that the ceiling of 10% of turnover must be calculated by reference to the turnover of each of the undertakings which were par- ties to those agreements and concerted practices or of the undertakings, as a whole, which were members of the said associations of undertakings, at least 37. It points out that, in the case of an where, by virtue of its internal rules, the association of undertakings, which is what association is able to bind its members. the appellant in fact constitutes, the taking into account of the turnovers of the mem- ber undertakings, which alone allows the imposition of a fine in keeping with its size and power on the market, is not made conditional on participation of those under- The soundness of this analysis is borne out takings in the infringement; all the case-law by the fact that, in fixing the amount of requires is that it should be possible for the fines, account may be taken, inter alia, of association to bind its members. the influence which the undertaking was able to exert on the market, in particular by reason of its size and economic power of which the undertaking's turnover gives an indication (judgment of the Court of Justice in Joined Cases 100/83 to 103/83 Musique Diffusion Française and Others v Commis- sion [1983] ECR 1825, paragraphs 120 38. In support of this interpretation of and 121) and by reason of the dissuasive Article 15(2) of Regulation No 17, the effect which those fines must have (judg- Commission refers to the judgment of the ment of the Court of First Instance in Case T-12/89 Solvay v Commission [1992]

39. The Commission also refers to the judgment of the Court of First Instance in SPO and Others v Commission, 9 which 42. In the same complaint the appellant confirms the earlier judgment on all points. also disputes the Court's finding that Finn- board had no economic interest of its own in participating in a concerted price increase. It maintains that any increase in the prices charged to the purchasers of cartonboard automatically increased the 40. With regard to whether Finnboard amount of the commission Finnboard could, in fact, bind its members, the could claim. Commission rightly rebuts the appellant's objection by stating that the issue cannot be debated before the Court of Justice sitting in an appellate capacity, since it relates to an assessment of the facts, which is — within limits not alleged to have been 43. However, as the Commission points exceeded in this case — within the exclu- out, apart from this being a finding of fact, sive jurisdiction of the Court of First the variation in absolute value in commis- Instance. sions, since it represents only a small percentage of the selling price, could, in any event, be only of minimal interest to Finnboard, and the attainment of any profits by the appellant would in fact have 41. As far as concerns an alleged contra- benefited its members. diction between the judgment of the Court of First Instance in Finnboard's action and its judgment in the action brought by Finnboard's members in Joined Cases T-339/94 to T-342/94, referred to above, the Commission argues that the second 44. If Finnboard therefore protests in vain judgment, far from contradicting the first against the taking into account of the one, reinforces it, since the finding that turnover of its members, can we, on the other hand, agree with its criticism of the way, approved by the Court of First 9 —Case T-29/92 SPO and Others v Commission [1995] Instance, in which the Commission deter- ECR II-289, paragraph 385. mined those turnover figures?

48. In fact, taking into account the tonnage sold, about which, after a misunderstand- ing was cleared up, there is no longer any 52. Given that the arguments put forward dispute, it seemed to the Commission that in this plea to show that, after establishing

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that the cartel had not produced all the lation, but points out that this plea was not effects which the Commission claimed to put forward by the appellant in its applica- have identified, the Court of First Instance tion before the Court of First Instance and could not but hold that the infringement emerged only at the hearing. It also claims was less serious than the Commission that, in the appellant's case, recourse to a maintained and reduce the fine accordingly, rounded-up figure altered the amount of are no different from the arguments put the fine by only 1%, which is a very small forward by the appellant Mo och Domsjö change, and that other undertakings fined AB in Case C-283/98 P, referred to above, suffered a similar increase. in which I am today delivering my Opinion, I refer to that Opinion for an explanation of why it should be rejected.

55. According to the Commission, the plea should therefore be rejected as inadmissible or, in any event, as unfounded. The fifth plea: abuse of powers committed by the Commission by arbitrarily rounding up the amount of the fine imposed on the appellant

Conclusion

60. I propose that the Court should:

— dismiss the appeal brought by Metsä-Serla Sales Oy against the judgment of the Court of First Instance of 14 May 1998 in Case T-338/94 Finnboard v Commission;

— order Metsä-Serla Sales Oy to pay the costs of the appeal.

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