JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber, Extended Composition)
28 February 2002 (1) (Competition - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Liability for an infringement - Fine - Appeal - Case referred back to the Court of First Instance)
In Case T-354/94,
Stora Kopparbergs Bergslags AB, established in Falun (Sweden), represented by S. Lehr and A. Riesenkampff, lawyers, with an address for service in Luxembourg,
applicant,
v
Commission of the European Communities, represented by J. Curall and R. Lyal, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for annulment of Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 - Cartonboard) (OJ 1994 L 243, p. 1),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (First Chamber, Extended Composition),
composed of: B. Vesterdorf, President, K. Lenaerts, J. Pirrung, M. Vilaras and N.J. Forwood, Judges,
Registrar: D. Christensen, Administrator,
having regard to the written procedure and further to the hearing on 2 October 2001,
gives the following
Judgment
1.
This case concerns Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 - Cartonboard) (OJ 1994 L 243, p. 1), as corrected prior to its publication by a Commission decision of 26 July 1994 (C(94) 2135 final) (hereinafter the Decision). The Decision imposed fines on 19 producers supplying cartonboard in the Community on the ground that they had infringed Article 85(1) of the EC Treaty (now Article 81(1) EC).
2.
The operative part of the Decision is worded as follows:
Article 1
Buchmann GmbH, Cascades SA, Enso-Gutzeit Oy, Europa Carton AG, Finnboard - the Finnish Board Mills Association, Fiskeby Board AB, Gruber & Weber GmbH & Co KG, Kartonfabriek de Eendracht NV (trading as BPB de Eendracht NV), NV Koninklijke KNP BT NV (formerly Koninklijke Nederlandse Papierfabrieken NV), Laakmann Karton GmbH & Co KG, Mo Och Domsjö AB (MoDo), Mayr-Melnhof Gesellschaft mbH, Papeteries de Lancey SA, Rena Kartonfabrik A/S, Sarrió SpA, SCA Holding Ltd (formerly Reed Paper & Board (UK) Ltd), Stora Kopparbergs Bergslags AB, Enso Española SA (formerly Tampella Española SA) and Moritz J. Weig GmbH & Co KG have infringed Article 85(1) of the EC Treaty by participating,
- in the case of Buchmann and Rena from about March 1988 until at least the end of 1990,
- in the case of Enso Española, from at least March 1988 until at least the end of April 1991,
- in the case of Gruber & Weber from at least 1988 until late 1990,
- in the other cases, from mid-1986 until at least April 1991,
in an agreement and concerted practice originating in mid-1986 whereby the suppliers of cartonboard in the Community
- met regularly in a series of secret and institutionalised meetings to discuss and agree a common industry plan to restrict competition,
- agreed regular price increases for each grade of the product in each national currency,
- planned and implemented simultaneous and uniform price increases throughout the Community,
- reached an understanding on maintaining the market shares of the major producers at constant levels, subject to modification from time to time,
- increasingly from early 1990, took concerted measures to control the supply of the product in the Community in order to ensure the implementation of the said concerted price rises,
- exchanged commercial information on deliveries, prices, plant standstills, order backlogs and machine utilisation rates in support of the above measures.
...
Article 3
The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1:
...
(xvii) Stora Kopparbergs Bergslags AB, a fine of ECU 11 250 000;
...
3.
According to the Decision, the infringement took place within a body known as the Product Group Paperboard (hereinafter the PG Paperboard), which comprised several groups or committees.
4.
In mid-1986 a group entitled the Presidents Working Group (hereinafter the PWG) was established within that body. This group brought together senior representatives of the main suppliers of cartonboard in the Community (some eight suppliers).
5.
The PWG's activities consisted, in particular, in discussion and collaboration regarding markets, market shares, prices and capacities. In particular, it took broad decisions on the timing and level of price increases to be introduced by producers.
6.
The PWG reported to the President Conference (hereinafter the PC), in which almost all the managing directors of the undertakings in question participated (more or less regularly). The PC met twice each year during the period in question.
7.
In late 1987 the Joint Marketing Committee (hereinafter the JMC) was set up. Its main task was, on the one hand, to determine whether, and if so how, price increases could be put into effect and, on the other, to prescribe the methods of implementation for the price initiatives decided by the PWG, country-by-country and for the major customers, in order to achieve a system of equivalent prices in Europe.
8.
Lastly, the Economic Committee discussed, inter alia, price movements in national markets and order backlogs, and reported its findings to the JMC or, until the end of 1987, to the Marketing Committee, the predecessor of the JMC. The Economic Committee was made up of marketing managers of most of the undertakings in question and met several times a year.
9.
According to the Decision, the Commission also took the view that the activities of the PG Paperboard were supported by an information exchange organised by Fides, a secretarial company, whose registered office is in Zurich, Switzerland. The Decision states that most of the members of the PG Paperboard sent periodic reports on orders, production, sales and capacity utilisation to Fides. Under the Fides system, those reports were collated and the aggregated data were sent to the participants.
10.
The applicant, Stora Kopparbergs Bergslags AB (Stora), a European cartonboard producer, acquired Kopparfors with effect from 1 January 1987 (table 8 annexed to the Decision). In 1990, it acquired the German paper group Feldmühle-Nobel (the FeNo group) via the latter's parent company, Feldmühle-Nobel AG (FeNo). At the time of acquisition, the FeNo group included the company Feldmühle, which already owned Papeteries Béghin-Corbehem (CBC).
11.
According to the Decision, Kopparfors, Feldmühle and CBC participated in the cartel throughout the period covered by the Decision. Feldmühle and CBC also took part in the PWG meetings.
12.
The Decision also states that [t]he former Kopparfors and Feldmühle cartonboard operations have now been integrated to form the Billerud Division of the Stora Group (point 11).
13.
According to point 158 of the Decision, Stora accepts that it is responsible for the involvement in the infringement of its subsidiary companies Feldmühle, Kopparfors and CBC both before and after their acquisition by the group. Moreover, the Commission considered that, because of the participation of Feldmühle and CBC in the PWG meetings, the applicant was one of the ringleaders and as such had to bear special responsibility.
14.
By application lodged at the Registry of the Court on 24 October 1994, the applicant brought an action for annulment of the Decision in so far as it concerned the applicant and, in the alternative, annulment or reduction of the fine.
15.
By judgment of 14 May 1998 in Case T-354/94 Stora Kopparbergs Bergslags v Commission [1998] ECR II-1211 (the judgment of the Court of First Instance), the Court of First Instance partially annulled Article 2 of the operative part of the Decision and dismissed the remainder of the application.
16.
By application lodged at the Registry of the Court of Justice on 27 July 1998, the applicant brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance.
17.
In support of its appeal, the applicant raised three pleas in law.
18.
The first plea in law alleged infringement of Article 85 of the EC Treaty and Article 15(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87), and also of general principles of Community law. In the first part of that plea, Stora submitted that the Court of First Instance had erred in law in holding that the infringements of Article 85 of the EC Treaty committed by its subsidiary Kopparfors had to be attributed to Stora without having taken into consideration the Commission's inability to establish whether Stora had actually exercised an influence on Kopparfors's commercial policy. In the second part of the plea, Stora maintained that the error of law consisted in the Court of First Instance's having held that the infringements committed by Feldmühle and CBC before and after their acquisition by Stora had to be attributed to Stora because Stora could not have been unaware of their participation in the infringement and did not adopt the appropriate measures to prevent the continuation of the infringement (paragraph 83 of the judgment of the Court of First Instance).
19.
The second plea in law alleged failure to state reasons in regard to the calculation of the amount of the fine.
20.
The third plea in law alleged that the Court of First Instance had erred in law in holding that the assessment of the gravity of the infringement could not be affected by the absence of any of the alleged effects on prices.
21.
In its judgment of 16 November 2000 in Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925 (the...
