C-205/00

IV — The appeal I-178

1 — Access to the file and the measures of organisation of procedure ordered by the

Court of First Instance I - 179

A — Arguments of the parties I-179

1. First plea in law (in part) I - 179

2. Second plea in law I - 180

C — No improper reversal of the burden of proof I-187

D — The adequacy of the reasoning concerning the judgments of the Court of First Instance in Solvay v Commission and ICI v Commission I-190 2 — A specific document, consultation of which was denied in the administrative procedure: the note of Mr Toscano (first plea in law — in part — and eighth head of the third plea in law) I-190 A — Arguments of the parties I-190

B — A mere disagreement as to the facts I - 191

1 — Original language: Spanish.

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4. An adequate statement of reasons I - 193 B — The Blue Circle memoranda and more on Mr Kalogeropoulos's statement (seventh head of the third plea in law and fifth head of the fourth plea in law) I - 194

1. Arguments of the parties I - 194

2. This plea is admissible I - 195

3. ... but unfounded I - 195

4. A sufficiently reasoned reply I - 196

C — The letter convening the meeting of 14 January 1983 — Mr Braz de

C — Third plea in law, 14th head, third argument I - 199

D — The criteria used by the Commission when imposing the fines I - 200

E — Observance of the principle of proportionality I - 204

V — Costs I-207

VI — Conclusion I - 207 I - 172

AALBORG PORTLAND AND OTHERS v COMMISSION

— The full text of the Statement of Objections, which was contained in a 2. For the purposes of this appeal, the single document, was not sent to each following facts, as set out in the contested of the undertakings or associations judgment, are relevant: concerned. Each was sent the full index of the Statement of Objections and a list of all the documents, specifying which documents could be consulted. A number of the undertakings and associations involved asked the Com- — From April 1989 to July 1990, the mission to send a copy of the chapters Commission carried out investigations which were not included in the text of into European cement producers and the Statement of Objections sent to trade associations in the sector pur- them and requested access to all the suant to Article 14(2) and (3) of documents in the file, except for inter- Regulation No 17 of 6 February 1962, nal or confidential documents. The First Regulation implementing Commission refused that request. 7 Articles 85 and 86 of the EC Treaty (now, after amendment, Articles 81 EC and 82 EC). 3 As a result of those investigations, the Commission decided on 12 November 1991 to initiate a procedure 4 against Irish Cement, among other undertakings. 5 — By D e c i s i o n 9 4 / 8 1 5 / E C of 30 November 1994 ('the Decision'), 8 2 — 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 the Commission found that Irish to T-65/95, T-68/95 to T-71/95, T-87/95, T-8S/95, T-103/95 and T-104/95 Cimenteries CBR v Commission [2000] ECR II-491. 3 — OJ, English Special Edition 1959-1962, p. 87. 6 — Paragraphs 3, 9 and 12 or the judgment under appeal. 4 — Cises IV/33.126 and 33.322 — Cement. 7 — Paragraphs 4 to 6 of the judgment. 5 — Paragraphs 2 and 3 of the judgment. 8 — OJ 1994 L 343, p. 1.

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(6) within the framework of the Euro- I I — The proceedings before the Court of pean Cement Export Committee, First Instance and the judgment under from 14 M a r c h 1 9 8 4 to appeal 22 September 1989, in concerted practices relating to the exchange of information on the supply and demand situation in the importing third countries, the export prices 4. Irish Cement requested the Court of First chargeable, the import situation in Instance to annul the Decision and to annul the member countries and the or reduce the fine imposed on it. In any supply and demand situation on event, it asked that the Commission be the home markets and designed to ordered to pay the costs. prevent incursions by competitors on respective national markets in the Community (Article 5).

5. By way of a measure of organisation of procedure, notified to the applicants between 19 January and 2 February 1996, the Court of First Instance requested the Commission to produce various docu- ments, which it did on 29 February 1996, when it lodged: 10 — The Commission ordered Irish Cement to bring the infringements in question to an end and to refrain from any agreement or concerted practice contrary to free competition in the markets for grey cement and white (1) the Statement of Objections as notified cement (Article 8), imposed a fine of to the undertakings concerned, now the ECU 3 524 000 plus interest with effect applicants; from expiry of the deadline set for payment, which was three months from the date of notification of the Decision (Articles 9 and 11). (2) the minutes of the oral hearing of each of the undertakings;

7. After providing them with copies of the — annul[led] Article 2(1) of Decision whole file, the Court of First Instance 94/815 in so far as it [found] that there invited the applicant undertakings and [had been] agreements on the exchange associations of undertakings to lodge a of price information at the meetings of pleading specifying the documents to which the Executive Committee of Cem- they had not had access during the adminis- bureau — The European Cement trative procedure which could have Association, and in so far as it [found] affected their defence and to explain why that the applicant [had] participated in in their view the outcome of the adminis- the infringement after 19 March 1984; trative procedure might have been different

12 — Ciments Luxembourgeois SA. 11 — See paragraphs 164 to 168 of the contested judgment. 13 — Paragraphs 169 and 170 of the judgment.

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— annulled] Article 2(2) of Decision — dismisse[d] the remainder of the appli­ 94/815 as regards the applicant in so cation; far as it [found] that the periodic circulation of information between Cembureau — The European Cement Association and its members [had] related, so far as concern[ed] the Bel­ — order[ed] the applicant to bear its own gian and Netherlands prices, to those costs and to pay one third of the costs two countries' producers' minium incurred by the Commission; prices for supplies of cement by lorry and, so far as concern[ed] Lux­ embourg, the prices, inclusive of rebates, of that country's producer; — order[ed] the Commission to bear two thirds of its own costs.'

ish and Irish producers' individual missed the first to third, ninth to twelfth price-lists, on the trade price-lists in and part of the fourteenth heads of the force in Greece, Italy and Portugal and third plea in law and the second, third and on the average prices charged in Ger- seventh heads of the fourth plea in law. many, France, Spain and the United Kingdom (Article 2(2)(b) of the Decision);

11. As regards the remaining pleas in law, a common hearing took place on 4 July 2002 for the six appeals lodged against the judgment of the Court of First Instance. (4) in the agreement on the setting-up of The appellant undertakings and the Com- the European Task Force (Article 4(1) mission attended. of the Decision), between 9 September 1986 and 31 May 1987;

IV — The appeal (5) in concerted practices designed to with- draw Calcestruzzi as a customer from the Greek producers (Article 4(3)(a) of the Decision), between 9 September 12. Irish Cement claims that the Court of 1986 and 15 March 1987. Justice should set aside the contested judg- ment in its entirety in so far as it upholds the Decision in respect of Irish Cement or, at least, that it should do so in part. Failing that, it claims, in descending order, that the Court should declare the Decision void or annul it or, finally, reduce the fine imposed on Irish Cement. It also asks that the Commission be ordered to pay the costs. I I I— The procedure before the Court of Justice

13. In support of those claims, Irish 10. When the appeal had been lodged and Cement puts forward four pleas in law, the written procedure completed, the Court although some are divided into a number of of Justice, in the exercise of its powers heads. As I have just said, of those pleas in under Article 119 of the Rules of Pro- law, the first to third, ninth to twelfth and cedure, 14 by order of 5 June 2002 dis- part of the fourteenth heads of the third plea in law and the second, third and seventh heads of the fourth plea in law have 14 — Codified version, published in OJ 2001 C 34, p. 1. been dismissed. I - 178

1. First plea in law (in part) 17. The Commission contends that the Court of First Instance did not make good the defective procedure retrospectively. It 15. Irish Cement maintains that where the merely ascertained whether the applicants Commission has adopted a decision in had been deprived of a defence and to what breach of fundamental procedural rules, extent their rights of defence had been the Court of First Instance is competent to infringed. It was impossible to determine in annul it but not to attempt to remedy ex advance whether the documents which the post facto the defects committed by the applicants were unable to consult during Commission. Anyone who is subject to the administrative procedure could have disciplinary proceedings is entitled to have had an influence on the outcome of the the procedure conducted fairly at all stages procedure, 1 5so that the Court of First and it cannot be assumed that if it had been Instance granted the undertakings and conducted properly the outcome would have been the same. 15 — The Commission maintains that the situation in the present case is different from that in Case T-30/91 Solvay v Commission [1995] ECR II-1775 and Case T-36/91 ICI v Commission [1995] ECR II-1847, where it was held that certain undisclosed documents were by their very nature relevant, since they allowed a different interpretation of the facts. In Case T-37/91 ICI v Commission [1995] ECR 16. The appellant is of the view that the II-1901, however, in which judgment was delivered on the same date, the Court of First Instance held that the first test employed by the Court of First documents m question were irrelevant and would not have Instance is adequate: if there is no objective assisted the applicant.

19. By this plea in law, Irish Cement reiterates the arguments which it puts forward in support of its first plea. The Commission contends that the appellant is merely repeating that the Court of First Instance was not competent to organise 21. The Commission contends that the access to the file in the context in which it appellant's argument is reductive and did so and, accordingly, refers to its com- abstract in the extreme and that it confuses ments regarding the first plea. two quite separate ideas: the legal classifi- cation of certain evidence and its evalu- ation. The Commission used as evidence against the applicants certain documents which the Court of First Instance classified 3. Third plea in law as specific evidence, so that the economic realities which might have offered an alter- native explanation for the facts were irrel- evant. The Court of First Instance (a) Fourth head appraised that evidence and examined and rejected the arguments put forward by the various applicants against the way in which 20. Irish Cement states that in the con- it had been interpreted. According to the tested judgment 16 the Court of First Commission, the plea is inadmissible in so far as Irish Cement seeks to call in question the Court of First Instance's assessment of 16 — Paragraphs 263 and 264 and paragraphs 1243 and 1251. the evidence.

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(b) Fifth head Instance's inadequate response to its refer- ence to the judgments in Solvay v Commis- sion 17 and ICI v Commission. 1 8In its opinion, the distinction drawn in the con- 22. In the appeal, the appellant claims that tested judgment between those two cases the test used by the Court of First Instance and the present case is manifestly wrong, deprives it of the possibility of exercising its since the situation is the same in both rights of defence where the Commission instances. relies on specific documentary evidence to establish an infringement.

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cedure ordered and, in particular, the had not been able to examine during the competence of the Court of First Instance investigation, they should identify them to adopt them and to determine the dispute and explain why the outcome of the in the light of their outcome. procedure could have been different had they been given the opportunity to consult them.

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decision, it failed to take account of the fact 33. That is the import of the provisions of that its position is not the same as the Regulation No 17, in particular Article 19, Commission's and ignored the effects of the and of Commission Regulation (EC) passing of time. As may be appreciated, No 2842/98 of 22 December 1998 on the Irish Cement disputes ab initio the way in hearing of parties in certain proceedings which the Court of First Instance proceeded under [Articles 81 EC and 82 EC]; 22 and in the contested judgment. that is the scope given to them by the case-law of the Court of Justice 23 and the Court of First Instance. 24 The European Court of Human Rights has extended the scope of the guarantees laid down in Article 6 of the European Convention on Human Rights to administrative proceed- ings of a disciplinary nature. 25

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of the European Union before any individ- further consequence. Even where access has ual measure which could affect him or her not been properly granted, or where there adversely is taken and the right to have have been defects in the way in which it access to his or her file. 28 was granted, and the person concerned has therefore been less able to defend himself, the decision subsequently adopted may be annulled only if it is found that, if the proper procedural routes had been scrupu- lously followed, the outcome could have been more advantageous for the person concerned or if, precisely because of the procedural defect, it is impossible to ascer- 34. The right to consult the file is another tain whether the decision would have been tool at the service of the right of defence. 29 different. In each case the final decision It is not an end in itself. 30 The formal must be annulled and, if appropriate, the guarantees of the judicial or administrative procedure repeated in order to put it right. procedure are explained according to that aim, which is simply the effective protec- tion of the rights and legitimate interests of everyone. When there is a procedural defect, when formalities are not correctly observed, there are legal consequences if the rights of defence are undermined. In other words, the concept of being unable to mount a defence is substantive, so that no matter how many defects there may be in 36. In short, defects in the procedure do the procedure, they are irrelevant if, in spite not have a life of their own in isolation of everything, the person concerned has from the substance of the case. If a decision enjoyed the appropriate rights of defence. taken in the wake of a defective procedure is annulled because, owing to the defects in the procedure leading to its adoption, it is wrong in substance, the decision is annulled because it is incorrect in substance, not because of the procedural defect. The defect in form assumes an independent existence only when, because it occurred, it is impossible to form an opinion about 35. However, the instrumental nature of the decision which was adopted. the right of access to the file entails a

38. As a result of the breach of procedural 40. There was nothing irregular in the way requirements consisting in the Commis- in which the procedure before the Court of sion's refusal to grant access to all the First Instance was carried out. The access exculpatory documents in the file (com- to the file which it provided was 'equal' in plained of by the applicant undertakings procedural terms to the access which the and associations and found to exist by the relevant undertakings and associations Court of First Instance), it was necessary to should have had during the administrative analyse the impact of the procedural defect procedure. It is true that, in the meantime, on the rights of defence. To that end, it was time did not stand still and, consequently, necessary to ascertain which exculpatory events occurred, some relevant to the out- material had been withheld from the appli- come of the procedure and to the judgment, cant undertakings and associations and to but none adversely affecting the rights of obtain their view on the matter. Upon defence of the present appellant. Fur- seeing that material, the Court of First thermore, for the purpose of determining Instance considered the extent to which the the dispute, the Court of First Instance and Decision would have been different and the parties had at their disposal evidence more favourable to the applicants if that which was previously unavailable to them, material could have been consulted and a fact which, as I have pointed out, is relied upon before the Commission. conducive to a correct decision.

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does not put them back in the situation 44. Nor did the Court of First Instance they would have been in if they had been disregard its own precedent expounded in able to rely on those documents in pres- Solvay v Commission and ICI v Commis- enting their written and oral observations sion, cited above. On the contrary, it to the Commission. 33 applied it quite correctly.

45. In each of those judgments the Court of 42. The Court of First Instance did not First Instance allowed the application for purport to remedy ex post facto a breach of annulment because, taking account of the the rights of defence which had already documents which were not made available taken place, but confined itself, initially, to to the parties during the administrative ascertaining whether there had been such a procedure, it could not rule out 'the breach. 34 Where it considered that there possibility that the Commission would had, it annulled the Decision. 35 On the have found the infringement to be shorter other hand, where an applicant had not and less serious and would, consequently, been deprived of its rights of defence, it have fixed the fine at a lower amount'. 36 held that the procedural defect committed However, in another judgment of the same while the administrative file was being date, in another case of ICI v Commis- constituted was, all in all, irrelevant. sion, 3 7 it rejected a claim that was substan- tially the same, because, although the same procedural defect was present, it did not affect the exercise of the rights of defence. 38

mission and in the present case. In the first documentary evidence was neither direct two judgments the Court reviewed a Com- nor specific, since it was open to alternative mission decision imposing penalties on the interpretations; furthermore, the docu- applicant undertakings for having partici- ments disclosed during the judicial pro- pated in a market-sharing concerted prac- cedure lent themselves to a different inter- tice, although, unlike in the present case, pretation from that given by the Commis- their conduct could only be proved by sion. indirect evidence, essentially their passive and parallel conduct. 39 In such a situation, because the exculpatory evidence which could not be used during the administrative procedure was capable of providing an alternative explanation for the parallel conduct, it might have been capable of having an impact on the probative value of that indirect evidence. 40 Irish Cement's situation is different. Its involvement in the facts was established by the Commis- sion from direct specific evidence,41 the content of which, according to the unap- pealable finding of the Court of First Instance, was not called in question by the 48. Couched in those terms, this plea is documents to which the appellant did not inadmissible in so far as it relates to the have access during the administrative stage. finding of the facts of the case, which falls within the jurisdiction of the Court of First Instance, whose task it is to assess the available evidence. The Court of Justice can intervene in that regard only if, in the production of evidence, a provision or a general principle of Community law has been infringed or if, when the evidence was assessed, there was an infringement of the rules governing the burden of proof and the C — No improper reversal of the burden appraisal of evidence owing to the latter of proof being illogical or arbitrary and therefore such as to distort the evidence. The Court of Justice can only repair an infringement of law by the Court of First Instance and never establish the facts, without prejudice to its jurisdiction to review their legal classification. 42 47. Irish Cement rejects that approach and claims that the so-called direct or specific 42 — See point 27 of my Opinion of 3 May 2001 m Casc C-315/99 P Ismeriv Court of Auditors [2001] ECR I-5281 and the judgments cited at note 17 of that Opinion, also 39 — See paragraph 61 of Solvay v Commission and paragraph paragraph 19 of the judgment in Ismeri v Court of Auditors. Among the more recent dicta of the Court of 71 of ICI v commission. Justice, see Joined Cases C-280/99 P to C-282/99 P Moccia 40 — Sec paragraphs 98 and 108, respectively, of the judgments. Irme and Others v Commission [2001] ECR I-4717, 41 — See paragraphs 263 and 264 of the contested judgment. paragraph 78.

53. One example is sufficient to illustrate the point. The Commission concluded from certain documents 47 that anti-competitive 51. The Decision was not based on 'paral- agreements had been adopted at the meet- lel conduct on the market': 43 that assertion ings between European cement producers was made in the judgment in order to show held on 14 January 1983 and 19 March that the documents which might have and 7 November 1984. It seems reasonable provided an alternative economic expla- to establish the extent to which the rights of nation of the undertakings' conduct on the defence were infringed by reference to the market were irrelevant. 44 evidence which would have been capable of rebutting the content of such evidence, which is the requirement established by the Court of First Instance when it spoke of an 'objective link' with any of the objec- tions upheld in the Decision. 48 52. And this approach reveals the full import of the test used by the Court of First Instance, which consisted in restricting the range of evidence capable of refuting the findings of fact made by the Commis- sion to that contained in 'documents relat- ing directly to the infringements' imputed to the applicants in the Decision. 45 That is to say, the Court of First Instance was correct to apply the rule that there has been 54. The Commission, relying on the docu- ments in the file, concluded that Cem- 43 — Paragraph 264 of the contested judgment. 44 — See, generally, paragraphs 264 and 1116. For the par- 46 — See paragraph 263 of the judgment under appeal. ticular case of Irish Cement, see paragraphs 1243 to 1251. 45 — Paragraph 262 of the judgment of the Court of First 47 — Those referred to at recitals 18,19 and 45 of the Decision. Instance. 48 — See paragraph 247.

57. In doing so, the Court of First Instance did not reverse the burden of proof, which 55. Once it had been proved that the was always borne by the Commission, 50 agreement had been adopted and con- which had to prove that Irish Cement and firmed at those meetings, the fact that there the other undertakings and associations was evidence capable of providing an were involved in the facts. However, once alternative economic explanation for Irish the Commission had fulfilled its obligation, Cement's conduct became irrelevant and, the undertakings and associations con- consequently, the fact that that evidence cerned had to rebut the incriminating was not consulted during the adminis- evidence with all the means at their dis- trative procedure could not breach the posal. Applying the judicial test set out at appellant's rights of defence. A careful paragraphs 241 and 247 of the judgment, reading of paragraphs 1243 to 1251 of the Court of First Instance concluded that the judgment shows that the documents the procedural defect, the lack of access to which the appellant was unable to consult were documents which, as they did not claim to refute the direct evidence used in 49 — The evidence referred to at recitals 18, 19 and 45 of the the Decision, could be classified as 'ex- Decision. traneous' and as unimportant to its 50 — The Commission succeeded in defeating the presumption of innocence of the undertakings and associations con- defence. cerned.

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those documents during the administrative Instance to ascertain whether the Commis- procedure, was irrelevant from the aspect sion's failure to observe the correct pro- of the rights of defence of the applicant cedure breached the rights of defence of the undertakings and associations. undertakings and associations on which penalties were imposed. In the final two paragraphs of the first plea in law it further states that, if the documents to which access was denied had been used, the Commission might have been influenced D — The adequacy of the reasoning con- in various ways, all potentially favourable cerning the judgments of the Court of First to the applicant undertakings. Instance in Solvay v Commission and ICI v Commission

B — A mere disagreement as to the facts

3 — The assessment of the relevance of certain documentary evidence 64. No matter how much Irish Cement seeks to demonstrate the contrary, its approach does not go beyond the establish- ment of the underlying facts of the case. It expresses a different way of dealing with facts which in some way show an arbitrary A — The statement of Mr Kalogeropoulos or illogical assessment of the evidence on (sixth head of the third plea in law and first the part of the Court of First Instance. head of the fourth plea in law)

65. Applying the judicial test set out at 1. Arguments of the parties paragraph 241, the legitimacy of which I noted a few lines above, the contested judgment states that the documents dis- closed were not such as to alter the version of the facts established by the Commission. 67. Irish Cement claims that the documen- The Court of First Instance held that Mr tary evidence on which the Commission Toscano's notes confirmed that questions of importance to the cement sector were raised at the Head Delegates meeting of 51 — Those indicated in recitals 18, 19 and 45 of the Decision. In the judgment, sec paragraph 1122 et seq. (in articular 14 January 1983 but they that they did not paragraphs 1130, 1131 and 1132).

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2. Once again, a mere assessment of the evidence 68. Irish Cement further states that, in the abstract, the Court of First Instance may be correct when it states, at paragraph 906 of the judgment, that the fact that in 1986 an 71. On close examination, it will be seen agreement between European cement pro- that Irish Cement's argument merely chal- ducers not to tranship to internal markets lenges the Court of First Instance's assess- had been in force for some 30 years did not ment of Mr Kalogeropoulos's statement preclude the possibility that a concurrence that 'there hajs] existed and continue[s] to of wills to the same end had been re- exist an agreement by all the European affirmed at the Head Delegates meeting of cement producers that no one must inter- 14 January 1983. However, it maintains vene within the national frontiers of the that that statement does not serve to others'. 53 The Court of First Instance support the Commission's position regard- regarded that statement as unequivocal ing the existence of an agreement adopted evidence of the existence, since an unspeci- during that meeting. fied date, of an agreement between the

52 — Paragraph 904 (emphasis added by the appellant). 53 — See paragraph 903 of the judgment.

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European cement producers which was to in those recitals to the Decision, that the confirmed at the meeting of 14 January meeting of 14 January 1983 gave approval 1983. So far as the Court of First Instance to a market-sharing agreement which had was concerned, that lack of specificity existed for some time. allowed the Commission to fix the begin- ning of the infringement as the date on which that meeting was held.

3. This plea in law is unfounded 75. Irish Cement maintains that the Court of First Instance did not answer its argu- ment that the fact that a market-sharing agreement had existed for some time did 73. Thus, the plea in law is inadmissible, not support the contention that an agree- but it is also unfounded. The Commission ment was adopted at the abovementioned did not rely on Mr Kalogeropoulos's state- 1983 meeting. It is sufficient to read ment as proof that the infringement paragraph 903 et seq. of the judgment to referred to in Article 1 of the Decision realise that Irish Cement's assertion is had actually taken place. It inferred the untrue. existence of the Cembureau agreement from the evidence referred to at recitals 18, 19 and 45 to the Decision. As the Court of First Instance pointed out, that statement constitutes further evidence to support the inference, drawn from the evidence referred 76. Irish Cement also complains that it did not receive an answer to its allegation 54 — See paragraph 48 above. concerning the political dimension of Mr

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78. Irish Cement believes that Mr Kaloge- ropoulos's statement and certain Blue

55 — See Article 253 EC. 80. The appellant also maintains that the 56 — See, among the most recent authorities, Joined Cases C-15/98 and C-105/99 Italy and Sardegna Lines v Com- Court of First Instance did not respond to mission [2000] ECR I-8855, paragraph 65, and Case the argument that the agreement referred to C-120/99 Italy v Council [2001] ECR I-7997, paragraph 1228. in the Blue Circle internal memoranda is I - 194

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not the Cembureau agreement concluded at ings and the moderator of the discussion, the Head Delegates meeting of 14 January did not reject as out of time but deemed it 1983 or referred to in Mr Kalogeropoulos's appropriate to examine. statement.

81. In the Commission's submission, by this plea the appellant is again seeking to suggest that certain measures may relate to some separate agreement to which it was 3. ... but unfounded not a party. In any event, the Court of First Instance answered those arguments and, in particular, the argument that the imports from Germany were inconsistent with the Cembureau agreement.

89. In the light of the content of the contested judgment, it is impossible to understand Irish Cement's complaint relat- ing to the lack of reasoning in relation to 87. Even if the substance of this plea were the evidential value of the Blue Circle upheld, the appellant's claim could not internal memoranda and the factual infor- succeed, since if the Blue Circle internal mation which they provide. Paragraphs memoranda were eliminated as incriminat- 875 to 901 are more than sufficient. ing evidence, other incriminating evidence would remain, as the Court of First Instance, the master of the evidence in the proceedings, confirmed.

90. In particular, the argument that the agreement to which the memoranda refer and the Cembureau agreement are not one and the same agreement is dealt with at paragraphs 876, 878 and 881, and the 88. In such circumstances, it would not be argument relating to imports from Federal open to the appellant to complain that the Germany is dealt with at paragraph 897. proceedings had been unfair, since it was penalised on the basis of incriminating evidence capable of rebutting the presump- tion of innocence: the letter convening the meeting of 14 January 1983 and the draft introductory statement by the Chairman, and the minutes of the meetings of 91. I suspect that the appellant is confusing lack of reasoning with reasoning which

57 — See paragraphs 921 to 1095, 1344, 1345, 1350 and 1352 of the judgment, which are referred to at paragraph 1399. 58 — See recital 45, paragraph 3, of the Decision.

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95. Irish Cement's argument is aimed at discussing the assessment made by the 92. Irish Cement submitted at first instance Court of First Instance for the purposes of that Mr Braz de Oliveira's letter was not a proof and it is therefore inadmissible. letter convening the Head Delegates meet- ing of 14 January 1983, since he had acted not as an official representative of Cem- bureau but as a representative of Cem- bureau to Ireland and Denmark, with which States he shared a post on the 96. The Court of First Instance acknowl- Executive Committee. It further submits edged that there were two versions of the that although the Court of First Instance letter convening the meeting: an 'official' acknowledged that the document had been version, sent to all the members of the incorrectly classified, it persisted in attribu- association, and another, the one signed by ting incorrect significance to it, so that its Mr Braz de Oliveira, Delegate to the probative value must be questioned. Cembureau Executive Committee, which was sent only to Aalborg and Irish Cement and from which the Commission inferred that the meeting of 14 January 1983 was intended to establish 'rules of the game' on the European cement market. The passage from which the Commission drew that 93. The Commission contends that Mr inference was not found in the Official' Braz de Oliveira's letter was correctly letter. The Court of First Instance took the

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view that this second letter '[was] not in Cement concerning the fine imposed in the any way inconsistent with the tenor of the Decision, which was reduced by the Court letter from Mr Gil Braz de Oliveira', 59the of First Instance. The first refers to the value of which as proof of the objective of distinction which the Commission drew the meeting of 14 January 1983 is relevant, between direct participants and indirect for the reasons set out in paragraphs 936 to participants in the Head Delegates meet- 941 and 977 to 987 of the judgment. ings (third plea in law, 13th head, and fourth plea in law, fourth head) and the second concerns the principle of propor- tionality (third plea in law, 14th head, third argument).

B — Fourth plea in law, fourth head error of assessment at paragraph 4964 of the contested judgment when it stated that the Commission's analysis appropriately assessed the degree of responsibility borne 103. In connection with the previous com- by each of the applicants on which fines plaint, Irish Cement criticises the Court of were imposed. It is incorrect to state that First Instance for having failed to respond those who participate in a peripheral way to its argument that the distinction between and adopted negligible measures to imple- direct and indirect participants had per- ment an anti-competitive agreement must verse effects. It provides an example: the be penalised in the same way as those who appellant was the only producer of cement promote and make a determined effort to in Ireland; Mr Quirke was the Irish repre- implement them. That approach is contrary sentative at the meeting of 14 January to the principle of proportionality, it fails 1983, from which the Commission inferred to dissuade the participants in the cartel that he was Irish Cement's employee, so bearing greater responsibility and it that the appellant's participation in that imposes an excessive penalty on the less meeting was not open to discussion; if, on guilty undertakings. the other hand, any other Irish cement producer had existed at the material time, Mr Quirke's presence at the meeting, even though he was employed by Irish Cement, would not have suggested that he repre- sented the appellant and the appellant would have been held responsible only for 106. The appellant further claims that the adopting measures to implement the Cem- Court of First Instance failed to apply the bureau agreement. standards defined by the Court of Justice in Musique diffusion française and Others v Commission. 60

6 of the Decision, was virtually non-exist- 111. In the Decision, two distinct markets ent or in any event limited, and should are envisaged, the market in grey cement therefore have concluded that the appel- and the market in white cement. As regards lant's responsibility was also virtually non- the first of these, it imputes the adoption of existent or limited. That finding is incom- the Cembureau agreement, whereby agree- patible with the refusal to annul the fine. ment was reached on non-transhipment to home markets and the regulation of cement transfers from one country to another. Articles 2 to 6 cover bilateral or multi- lateral conduct designed to implement or facilitate the implementation of that 'single and continuous' agreement or to remove 108. The Commission submits that this potential obstacles to its effectiveness, such argument is inadmissible, since it refers as, for example, the so-called 'Greek not to an error in law but to the way in threat'. Article 7 refers to anti-competitive which the Court of First Instance assessed conduct on the market in white cement. the gravity of the infringement and the amount of the fine. In any event, the amount of the fine was reduced in the judgment.

109. As regards the substance, the Com- mission argues that the fine was imposed 112. The Commission imposed separate for the Cembureau agreement in its enti- penalties for infringements relating to each rety. Separate fines were not calculated for market. 61 each of the measures taken to implement the agreement.

D — The criteria used by the Commission 113. As regards the market in grey cement, when imposing the fines the only market in which anti-competitive conduct was imputed to Irish Cement, the Commission decided not to penalise each individual type of conduct but to impose an overall fine on each undertaking, since the 110. For the purpose of analysing these Cembureau agreement and all the measures complaints, it is appropriate to refer to the structure of the body of the Decision and of the criteria used in setting the fines. 61 — See recital 65, paragraph 7, of the Decision.

116. In accordance with the foregoing, the Commission identified two groups of undertakings and associations: first, those involved in the Cembureau agreement and 114. The Commission further considered second, the other undertakings, which were that all the undertakings and associations less involved and whose responsibility was to which the Decision was addressed therefore lesser. 66 acceded to the Cembureau agreement and it set out the evidence used to confirm the participation of each of them. Thus, as regards Irish Cement, it concluded that it acceded, as a member of Cembureau, to the agreement or principle of not transhipping to home markets at the time when it was 117. Within the former category, the Com- agreed and approved and that it also mission distinguished three sub-groups: (1) participated in the measures and arrange- that consisting of the undertakings and ments agreed to supplement it and/or assist associations which, as members of Cem- in its application. 64 bureau, had participated directly in the adoption of the agreement on non-trans- hipment to home markets and in measures directly protecting those markets (the Com- mission included Irish Cement in this group); (2) a second sub-group composed of the companies which, through their most senior staff, had performed the function of Head Delegates within Cembureau either at the time when the agreement was con- 115. 'However, within this general cluded or during the period of its imple- approach, [the Commission took] account mentation; and (3) the final sub-group, of the role played by each undertaking in made up of the companies which had taken the conclusion of the... agreement', or in part in measures implementing the agree- ment and designed to protect home mar- kets. 67 62 — Sec recital 65, paragraph 8, first indent, of the Decision. 63 — Sec Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 111. On the determination of the amount of fines in complex infringe- 65 — Recital 65, paragraph 9, first subparagraph, of the ments, reference should he made to E. David, "La deter- Decision. See also paragraph 4950 of the judgment. The mination du montant des amendes sanctionnant les Commission set 'an aggregate fine on each undertaking in infractions complexes: régime commun ou régime par- respect of its participation in the Cembureau agreement or ticulier?'. Revue trimestrielle de droit européen. No 36(3), principle and in the measures implementing it' (recital 65, July-September 2000, pp. 511 to 545. paragraph 8, second indent). 64 — See the Decision, recital 65, paragraph 3(a), and paragraph 66 — Recital 65, paragraph 9(a) and (b), of the Decision. 9(a), first indent. 67 — Recital 65, paragraph 9(a), of the Decision.

123. First, it is inadmissible because the appellant merely reproduces the same argu- ments as those set out in the application, which were answered at paragraph 4965 et 120. The Court of First Instance upheld seq. of the contested judgment. Irish Irish Cement's application in part because, Cement says nothing new in this plea, in calculating the fine which it imposed on nothing which was not discussed and it, the Commission considered that it had determined before the Court of First Instance. It exploits the fact that the Court

68 — Recital 65, paragraph 9(b), of the Decision. 69 — See the letter sent on 7 July 1998 to the Court of First 70 — See paragraphs 4807 to 4814 of the judgment, specifically Instance by the Commission, in particular paragraphs 2 the second indent of paragraph 4814. and 3. See also paragraphs 4738, 4957 and 4963 of the 71 — See paragraph 4815 and the seventh indent of paragraph contested decision. 29 of the operative part of the judgment under appeal.

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of First Instance applied the same criterion individual answer to each and every one of in setting the fines as the Commission had the allegations put forward by the parties. to reproduce a discussion which in reality The reasons implicit in the judgment are criticises not the contested judgment but also lawful in so far as they satisfy the aims the Decision. pursued by that guarantee of the reasonable exercise of power.

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the number of implementing measures and to discourage those responsible, and adopted by each undertaking,73 when it also any other prospective offenders, from says that the distinction drawn by the engaging in anti-competitive conduct. It Commission between direct and indirect must therefore be suitable for those pur- participants was well founded,74 when it poses, while striking a proper balance so says that, consequently, '[the Commission] that the fine punishes the conduct which it was not required to evaluate the specific penalises and at the same time is exemp- role played by each of them in the various lary. unlawful acts' 75 and when it states that '[t]he number of individual infringements committed by a given undertaking in the framework of the Cembureau agreement does not constitute, in the present case, an appropriate criterion by which to assess its degree of responsibility', 76 it is telling Irish Cement that there is nothing wrong with 130. From the first aspect, the retributive the criterion used by the Commission. aspect, as a corollary of the principle that the punishment must be applied solely to the offender, the penalty must be propor- tionate to the gravity of the infringement and to the further circumstances, both subjective and objective, which are present in each case. For that reason, the final sentence of Article 15(2) of Regulation No 17 provides that in fixing the amount E — Observance of the principle of pro- of the fine, regard is to be had both to the portionality gravity and also, if appropriate, to the duration of the infringement.

133. It is thus necessary to assess the content of the anti-competitive conduct, the extent of the market affected and, more 136. The Court of First Instance adopted specifically, the harm suffered by the econ- that approach in approving and applying omy; and for that purpose data such as the the criteria used by the Commission in duration of the prohibited practice, the setting the fines. Far from corresponding to material nature of the market in question an arbitrary classification of the companies and the number and intensity of the and associations responsible, those criteria implementing measures adopted are rel- are the result of a detailed analysis of the evant. participation and conduct of each of them. That is clear from paragraphs 3, 5 and 9 of recital 65 to the Decision, which, it must not be forgotten, contains an extensive first part, in which the facts are set out and the roles played by the various entities and associations concerned are described.

134. At a subjective level, that of the undertakings responsible, the relevant cir- cumstances include the relative size or market quota in the economic sector con- cerned and also whether the anti-competi- 137. All the practices, which of necessity tive conduct was repeated. were not the same in each case, pursued the

7 78 — In the work cited above, L. David states that 'la gravité 9 — By definition, infringements of Article 81 EC assume s'apprécie selon trois critères: la nature de ľinfraction, son collective conduct. impact sur le marché lorsqu'il est mesurable et le marché 80 — See Suiker Ume and Others v Commission, cited above, géographique et à deux niveaux: ceux de l'infraction et de paragraph 623, and Hercules Chemicals v Commission, l'entreprise' (p. 522). cited above, paragraph 110.

138. There is nothing unlawful in that approach, since, as I have already said, the gravity of an infringement may be assessed regard being had to the harm which the conduct has caused to the economy. As the Court of First Instance stated at paragraph 4966 of the contested judgment, each of the undertakings which participated in the Cembureau agreement 140. For the remainder, Irish Cement's 'sought to ensure non-transhipment to complaint is inadmissible when it claims home markets by means of the number of that the Court of First Instance failed to measures deemed necessary in the light, in answer the argument that its conduct was particular, of its commercial interests and incapable of affecting the closing of the geographical situation of its natural domestic markets. I refer the Court of market. The fact of having taken part, in Justice to paragraphs 4966 and 4975 of the light of those factors, in fewer unlawful the judgment and to my reasoning at measures does not consequently reflect a points 125 to 127 above. lesser degree of adhesion to the Cembureau agreement and, therefore, a lesser respon- sibility in the infringement'. The position was the same as regards the damage to competition.

139. The reasons stated by the Commis- sion, and approved by the Court of First 141. The plea is also inadmissible in so far Instance, 81 for distinguishing the two cat- as Irish Cement seeks to persuade the Court egories of undertakings satisfy an objective of Justice that its involvement in the facts and reasonable criterion, as does the effect was irrelevant and that only insignificant responsibility for applying them can be

VI — Conclusion

145. In accordance with the foregoing considerations, I propose that the Court should:

(1) Dismiss all the pleas in law put forward by Irish Cement Limited which were not rejected in the order of 5 June 2002;

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(2) Uphold the contested judgment in so far as it concerns Irish Cement;