Court of Justice of the European Communities (including Court of First Instance Decisions)

Decision, which had already been reduced by the contested judgment, or to refer the case back to the Court of First Instance for that purpose.

Facts and procedure before the Court of First Instance

to share out the available market between them according to agreed percentage or tonnage targets. This led the Commission to commence the procedure provided for by Article 3(1) of Regulation No 17 and to send a written statement of objections to several undertakings, of whom Anic was not one. According to paragraph 8 of the contested judgment, in view of the information supplied in the written replies to the statement of objections, the Commission decided to extend the proceedings to Anic and Rhône-Poulenc SA and to that end sent a statement of objections, similar to the statement of objections addressed to the other undertakings, to those two undertakings.

- contacted each other and met regularly (from the beginning of 1981, twice each month) in a series of secret meetings so as to discuss and determine their commercial policies;

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

- agreed various measures designed to facilitate the implementation of such target prices, including (principally) temporary restrictions on output, the exchange of detailed information on their deliveries, the holding of local meetings and from late 1982 a system of 'account management' designed to implement price rises to individual customers;

- introduced simultaneous price increases implementing the said targets;

- shared the market by allocating to each producer an annual sales target or 'quota' (1979, 1980 and for at least part of 1983) or in default of a definitive agreement covering the whole year by requiring producers to limit their sales in each month by reference to some previous period (1981, 1982) (Article 1 of the Polypropylene Decision).

The contested judgment

Proof of the infringement - Findings of fact

The system of regular meetings

the contested judgment, that, on the basis of Anic's and ICI's replies to the request for information, the Commission had established to the requisite legal standard that Anic had participated regularly in the periodic meetings of polypropylene producers from the end of 1978 or the beginning of 1979 onwards. As regards the beginning of that participation, it follows from paragraphs 88 and 89, that ICI's reply to the request for information, confirmed on that point by Anic's written pleadings before the Court of First Instance, includes Anic among the regular participants in the 'bosses'' and 'experts'' meetings from that time onwards. As regards the end of that participation, the Court of First Instance noted, in paragraph 90, that the Commission had acknowledged in the Polypropylene Decision that there was still some doubt and, in its written pleadings before the Court of First Instance, that Anic's presence at the meetings had ceased to be regular from May 1982. At the hearing it had accepted that from September 1982 Anic had no longer participated in the meetings. According to paragraphs 91 and 94, it also appeared from the note of the meeting of 13 May 1982 that it was stated during that meeting that Anic was no longer coming. The meeting of 13 May 1982 was an exception, according to the note of the meeting of 9 June 1982, whilst an indication given by Anic in its reply to the request for information concerning its participation in the meeting of 6 October 1982 is incorrect.

the requisite legal standard that that participation had continued beyond mid-1982.

The price initiatives

in those meetings had agreed to the price initiatives mentioned in the Polypropylene Decision. According to paragraph 110, since it had been established to the requisite legal standard that Anic had participated regularly in those meetings, it could not assert that it had not supported the price initiatives which were decided on, planned and monitored at those meetings, without providing any evidence to corroborate that assertion.

that it had taken no account of the results of the meetings in determining its conduct on the market as regards price. It considered, at paragraph 112, that neither of those arguments could corroborate Anic's assertion that it had not subscribed to the agreed price initiatives: in the light of the findings of the Court of First Instance concerning Anic's participation in the meetings, the first argument was not founded in fact. As regards the second argument, even if it were supported by the facts, it would at most show that Anic had not put into effect the results of those meetings. Moreover, according to paragraph 113, although the Commission had not been able to obtain price instructions issued by Anic and thus had had no proof of its implementation of the price initiatives in question or of parallel conduct, that did not impugn in any way the finding that Anic had participated in those initiatives.

The measures designed to facilitate the implementation of the price initiatives

shared between the various producers according to their specific situation. At paragraph 122, the Court of First Instance pointed out that the Commission had not been able to establish to the requisite legal standard that Anic had participated in the meetings during which that set of measures was adopted or that Anic had subscribed thereto.

Target tonnages and quotas

table taken from the premises of ICI headed 'Producers' Sales to West Europe' indicated that the quota system originally planned for 1979 had had to be made tighter for the last three months of the year.

meeting on 13 May 1982; the implementation of those measures was evidenced by the notes of the meetings of 9 June, 20 and 21 July and 20 August 1982.

request for information that it had remained on the polypropylene market until April 1983. It followed, according to the Court of First Instance, that it was not unlikely that in late 1982 Anic had informed the other producers of its aspirations with a view to fixing quotas for the first quarter of 1983, so that it had therefore to be determined whether the Commission had proved that fact to the requisite legal standard.

The application of Article 85(1) of the Treaty

Legal characterisation

factual elements to be characterised as 'agreements' and factual elements to be characterised as 'concerted practices'. According to the Court of First Instance, given such a complex infringement, the dual characterisation by the Commission in Article 1 of the Polypropylene Decision was to be understood not as requiring, simultaneously and cumulatively, proof that each of those factual elements presented the constituent elements both of an agreement and of a concerted practice, but rather as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 85(1) of the Treaty, which lays down no specific category for a complex infringement of that type. Furthermore, according to paragraph 206, in Anic's case, the Commission had proved to the requisite legal standard each of the aspects of the infringement for the duration of its participation in the system of regular meetings and it did not therefore attribute to Anic liability for the conduct of other producers.

Restrictive effect on competition

Effect on trade between Member States

together with others was capable of affecting trade between Member States. The Court of First Instance concluded, in paragraph 225, that the Commission had established to the requisite legal standard that the infringement in which Anic had participated was apt to affect trade between Member States, and it was not necessary for the Commission to demonstrate that Anic's individual participation had affected trade between Member States.

The question whether or not Anic was answerable for the infringement

responsible for its operation when the infringement was committed, the undertaking might fail to answer for it.

Amount of the fine

Commission did not mention the figures which it took into account in that respect in the Polypropylene Decision could not vitiate the Decision, since during the proceedings before the Court of First Instance the Commission had submitted the relevant figures, and Anic had not contested their accuracy. According to the Court of First Instance, it followed that in calculating the amount of the fine, the Commission had correctly assessed Anic's size on the Community polypropylene market.

1. Annulled Article 1 of the Polypropylene Decision in so far as it held that Anic had taken part:

- in the infringement before the end of 1978 or the beginning of 1979 and after the end of October 1982;

- in the system of regular meetings of polypropylene producers, the price initiatives and the restriction of monthly sales by reference to a previous period after mid-1982; and

- in measures designed to facilitate the implementation of the price initiatives;

2. Set the amount of the fine imposed on the applicant in Article 3 of that Decision at ECU 450 000, that is to say ITL 662 215 500;

3. For the rest, dismissed the application;

4. Ordered each party to bear its own costs.

The appeal

- to annul the contested judgment in so far as the parts referred to in point 1, second and third indents, of the operative part are concerned;

- to set the amount of the fine at ECU 562 500;

- to dismiss the forms of order sought by Anic claiming that the Polypropylene Decision should be annulled;

- to dismiss in their entirety the pleas in law submitted by Anic in its appeal against the contested judgment;

- to order Anic to pay the costs.

- to dismiss in its entirety the Commission's appeal against the contested judgment;

- to annul the contested judgment on account of the fact that its grounds are insufficient and contradictory, and for misapplication of law with regard to determination of the date on which Anic's participation in infringement ceased; to set that date at June 1982 rather than October 1982 and, having annulled the relevant part of Article 1 of the Polypropylene Decision, consequently to reduce the fine imposed on Anic or refer the case back to the Court of First Instance for that purpose;

- to annul the contested judgment on account of the fact that its grounds are insufficient and contradictory and for misapplication of the law with regard to the principles governing liability, the establishment of the infringement, legal characterisation and gravity of the infringement, and to reappraise the factors and criteria for determination of the fine imposed on Anic and, having annulled the relevant part of Article 3 of the Polypropylene Decision, to reduce that fine in an appropriate manner or, in the alternative, to refer the case back to the Court of First Instance for that purpose;

- to order the Commission to pay the costs, both of the application at first instance and of this appeal.

Breach of the principle of personal responsibility

limitation period, but it cannot be turned into a criterion for attributing responsibility, thus making Anic responsible for all aspects of the conduct of all the undertakings charged during the period under consideration.

infringement, including conduct put into effect by other participating undertakings but sharing the same anti-competitive object or effect.

the amount of the fine was determined, these complaints overlap with those made or part of its sixth plea and will therefore be examined together with that plea.

Mistaken finding of the infringement

irrelevant, since agreements within the meaning of Article 85 of the Treaty were involved here.

Incorrect legal characterisation of the infringement

so as to prevent the rule being too easily circumvented. Anic's argument would paradoxically weaken the prohibition, by requiring more exacting proof for a concerted practice than for an agreement. Article 85 of the Treaty would thus be disarmed in relation to concerted practices since, contrary to what counts for agreements, only the anti-competitive effect would count, not the object.

cumulatively, proof that each of those factual elements presented the constituent elements both of an agreement and of a concerted practice, but rather as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 85(1) of the Treaty, which lays down no specific category for a complex infringement of this type.

whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market, where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market (see, to that effect, Suiker Unie and Others v Commission, paragraph 174; Züchner, paragraph 14; and John Deere v Commission, paragraph 87, all cited above).

Incorrect attribution of responsibility

a single commercial strategy, and sold its polypropylene production business to Monte before the said decision, while continuing to exist as a legal person.

Incorrect assessment of the gravity of the infringement

Incorrect assessment of the amount of the fine

The Commission's appeal

Admissibility

Substance

General

Mistaken interpretation of the Polypropylene Decision

accompanying measures, but the Polypropylene Decision attributed to each undertaking responsibility for the agreement as a whole. According to the Decision, there was not a series of infringements but a single infringement, although the fact that each undertaken played a greater or lesser role in it was taken into account when the amount of the fine was determined. In Article 1 of the Polypropylene Decision, the undertakings were thus held responsible, at the times specified for each of them, for an infringement which manifested itself in five forms of conduct, but with no indication as to which undertakings had adopted which course of conduct, or the times at which it had done so.

Contradictions between the grounds of the judgment and the operative part

set aside in so far as point 1, second and third indents, of the operative part are concerned.

during which those measures were adopted implies its non-involvement in the initiatives agreed there.

efforts made by the undertakings in question in pursuit of a single economic aim, namely to distort the normal movement of prices on the market in polypropylene. The Court of First Instance therefore indicated that it would be artificial to split up such continuous conduct, characterised by a single purpose, by treating it as consisting of a number of separate infringements, and considered that Anic had taken part in an integrated set of schemes constituting a single infringement, which progressively manifested itself in both unlawful agreements and unlawful concerted practices.

all with the same economic objective in common, namely to distort the normal movement of prices on the polypropylene market. On the other hand, it excluded Anic's responsibility, either in part of the period during which it had participated in the infringement, or in that entire period, for lines of conduct which nevertheless constituted specific manifestations of that single infringement, on the ground that it had not been proved that Anic had taken part in those lines of conduct or that it had participated in the meetings during which it had been decided to follow those lines of conduct, without examining whether its responsibility for those specific lines of conduct could ensue from its participation in the infringement as a whole.

by virtue of its participation in the regular meetings of polypropylene producers during a period of several years and must have assumed that they would continue after mid-1982.

Merits of the application for annulment

Alleged non-existence of the Polypropylene Decision

Pleas in law seeking annulment of the Polypropylene Decision

Amount of the fine

of its gravity and the latter criterion should be assessed in relation to the conduct of each undertaking and not only in relation to the infringement as such.

Costs