Judgments nº T-109/02 of Court of First Instance of the European Communities, April 26, 2007

• Resolution Date: April 26, 2007
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-109/02

In Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02,

BollorÈ SA, established in Puteaux (France), represented by R. Saint-Esteben and H. Calvet, lawyers,

applicant in Case T-109/02,

Arjo Wiggins Appleton Ltd, established in Basingstoke (United Kingdom), represented by F. Brunet, lawyer, J. Temple†Lang, Solicitor, and J. Grierson, Barrister,

applicant in Case T-118/02,

supported by

Kingdom of Belgium, represented by A. Snoecx and M. Wimmer, acting as Agents,

intervener in Case T-118/02,

Mitsubishi HiTec Paper Bielefeld GmbH, formerly Stora Carbonless Paper GmbH, established in Bielefeld (Germany), represented by I. van Bael, lawyer, and A. Kmiecik, Solicitor,

applicant in Case T-122/02,

Papierfabrik August Koehler AG, established in Oberkirch (Germany), represented by I. Brinker and S. Hirsbrunner, lawyers,

applicant in Case T-125/02,

M-real Zanders GmbH, formerly Zanders Feinpapiere AG, established in Bergisch Gladbach (Germany), represented by J. Burrichter and M. Wirtz, lawyers,

applicant in Case T-126/02,

Papeteries Mougeot SA, established in Laval-sur-Vologne (France), represented initially by G. Barsi, J. Baumgartner and J.-P. Hordies, and subsequently by Messrs Barsi and Baumgartner, lawyers,

applicant in Case T-128/02,

Torraspapel, SA, established in Barcelona (Spain), represented by O. Brouwer, F. Cantos and C. Schillemans, lawyers,

applicant in Case T-129/02,

Distribuidora VizcaÌna de Papeles, SL, established in Derio (Spain), represented by E. PÈrez Medrano and I. Delgado Gonz·lez, lawyers,

applicant in Case T-132/02,

Papelera Guipuzcoana de ZicuÒaga, SA, established in Hernani (Spain), represented by I. Quintana Aguirre, lawyer,

applicant in Case T-136/02,

v

Commission of the European Communities, represented, in Cases T-109/02 and T-128/02, by W. Mˆlls and F. Castillo de la Torre, acting as Agents, assisted by N. Coutrelis, lawyer, in Cases T-118/02 and T-129/02, by W. Mˆlls and A.†Whelan, acting as Agents, assisted by M. van der Woude, lawyer, in Case T-122/02, initially by R. Wainwright and W. Mˆlls, and subsequently by R.†Wainwright and A. Whelan, acting as Agents, in Cases T-125/02 and T-126/02, by W. Mˆlls and F. Castillo de la Torre, assisted by H.-J. Freund, lawyer, in Joined Cases T-132/02 and T-136/02, by W. Mˆlls and F. Castillo de la Torre, assisted by J. Rivas AndrÈs and J. GutiÈrrez Gisbert, lawyers,

defendant,

APPLICATION for annulment of Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement - Case COMP/E-1/36.212 - Carbonless paper) (OJ 2004 L 115, p.†1) or, in the alternative, reduction in the fine imposed on the applicants by that decision

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, F. Dehousse and D. Sv·by, Judges,

Registrar: J. Palacio Gonz·lez, Principal Administrator,

having regard to the written procedure and further to the hearings on 2 (T-132/02 and T-136/02), 7 (T-109/02 and T-128/02), 14 (T-122/02), 16 (T-118/02 and T-129/02) and 21 June 2005 (T-125/02 and T-126/02),

gives the following

Judgment

†Background

1††††††††In autumn 1996, the Sappi paper group, owned by Sappi Ltd, provided the Commission with information and documents which gave the Commission grounds for suspecting that a secret cartel existed or had existed for fixing prices in the carbonless paper sector, in which Sappi operated as a producer.

2††††††††In light of the information provided by Sappi, the Commission carried out investigations at the premises of a number of carbonless paper producers pursuant to Article 14(2) and (3) of Council Regulation No†17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ English Special Edition 1959-62, p. 87). Accordingly, inspections provided for under Article 14(3) of Regulation No 17 were carried out on 18 and 19 February 1997 at the premises of Arjo Wiggins Belgium SA, Papeteries Mougeot SA (-Mougeot-), Torraspapel, SA, Sarriopapel y Celulosa, SA (-SarriÛ-) and Grupo Torras, SA. In addition, inspections were carried out under Article 14(2) of Regulation No†17 between July and December 1997 at the premises of Sappi, Arjo Wiggins Appleton plc (-AWA-), Arjo Wiggins Europe Holdings Ltd, Arjo Wiggins SA and its subsidiary GuÈrimand SA, Mougeot, Torraspapel, SarriÛ, Unipapel, Sociedade Comercial de Celulose e Papel L da , Stora Carbonless Paper GmbH (-Stora-; formerly Stora-Feldm¸hle AG) and Papierfabrik August Koehler AG (-Koehler-).

3††††††††In 1999 the Commission also sent requests for information pursuant to Article 11 of Regulation No 17 to AWA, Mougeot, Torraspapel, Cartiere Sottrici Binda SpA (-Binda-), Carrs Paper Ltd (-Carrs-), Distribuidora VizcaÌna de Papeles, SL (-Divipa-), Ekman Iberica, SA (-Ekman-), Papelera Guipuzcoana de ZicuÒaga, SA (-ZicuÒaga-), Koehler, Stora, Zanders Feinpapier AG (-Zanders-) and Copigraph SA. In those requests, the undertakings concerned were asked to give particulars of their announcements of price rises, their sales volumes, customers, turnover and meetings with competitors.

4††††††††In reply to the request for information, AWA, Stora and Copigraph admitted their participation in multilateral cartel meetings held between carbonless paper producers. They provided the Commission with various documents and information.

5††††††††Mougeot, for its part, contacted the Commission on 14 April 1999 stating that it was prepared to cooperate in the investigation pursuant to the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; -the Leniency Notice-). It accepted that there was a cartel for fixing prices in the carbonless paper sector and it provided the Commission with information on the structure of the cartel, and in particular on the various meetings attended by its representatives.

6††††††††On 26 July 2000 the Commission initiated the procedure and adopted a statetement of objections (-SO-), which it addressed to 17 undertakings, that is, AWA, BollorÈ SA, and its subsidiary Copigraph, Carrs, ZicuÒaga, Divipa, Mitsubishi HiTech Paper Bielefeld GmbH (-MHTP-), formerly Stora, Mougeot, Koehler, Sappi, Torraspapel and Zanders. They were given access to the Commission-s investigation file in the form of a copy on CD-ROM, which was sent to them on 1 August 2000.

7††††††††All the undertakings to which the SO was addressed, save Binda, International Paper and Mitsubishi Paper Mills Ltd, submitted written observations in response to the objections raised by the Commission.

8††††††††A hearing took place on 8 and 9 March 2001.

9††††††††After obtaining the opinion of the Advisory Committee on Restrictive Practices and Dominant Positions, and in light of the final report of the hearing officer, the Commission adopted, on 20 December 2001, Decision 2004/337/EC relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.212 - Carbonless paper) (OJ 2004 L 115, p.†1; -the decision-).

10††††††In the first paragraph of Article 1 of the decision, the Commission finds that 11 undertakings infringed Article 81(1) EC and Article 53(1) of the EEA Agreement by participating in a complex of agreements and concerted practices in the sector of carbonless paper.

11††††††In the second paragraph of Article 1 of the decision, the Commission finds that AWA, BollorÈ, MHTP, Koehler, Sappi, Torraspapel and Zanders participated in the infringement from January 1992 to September 1995, Carrs from January 1993 to September 1995, Divipa from March 1992 to January 1995, ZicuÒaga from October 1993 to January 1995 and Mougeot from May 1992 to September 1995.

12††††††In Article 2 of the decision, the undertakings referred to in Article 1 are ordered to bring the infringement referred to therein to an end, if they have not already done so, and to refrain from any agreements or concerted practices in relation to their activities in carbonless paper which may have the same or a similar object or effect to that of the infringement.

13††††††According to the first paragraph of Article 3 of the decision, the following fines were imposed on the undertakings concerned:

-††††††††AWA: EUR 184.27 million;

-††††††††BollorÈ: EUR 22.68 million;

-††††††††Carrs: EUR 1.57 million;

-††††††††Divipa: EUR 1.75 million;

-††††††††MHTP: EUR 21.24 million;

-††††††††ZicuÒaga: EUR 1.54 million;

-††††††††Mougeot: EUR 3.64 million;

-††††††††Koehler: EUR 33.07 million;

-††††††††Sappi Ltd: EUR 0;

-††††††††Torraspapel: EUR 14.17 million;

-††††††††Zanders: EUR 29.76 million.

14††††††According to the second paragraph of Article 3 of the decision, the fines are payable within three months of the date of notification of the decision. The third paragraph of Article 3 provides that, after expiry of that period, interest will automatically be payable at the interest rate applied by the European Central Bank to its main refinancing operations on 1 December 2001, plus 3.5 percentage points, namely 6.77 per cent.

15††††††The decision is addressed to the 11 undertakings referred to in Articles 1 and 2 of the decision.

16††††††According to the decision (recital 77) the parties to the cartel agreed on an overall anti-competitive plan aiming essentially at improving the profitability of the participants by collectively increasing prices. According to the decision, the principal objective of the cartel through that plan was to agree price increases and also the timing of those increases.

17††††††To that end various meetings were organised at different levels - general, national and regional. According to recital 89 of the decision, the general cartel meetings were followed by a series of national or regional meetings, the purpose of which was to ensure market-by-market implementation of the price increases agreed at the general cartel meetings. During...